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https://www.courtlistener.com/api/rest/v3/opinions/5902043/
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Order unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The court erred in suppressing defendant’s sneakers because defendant was not "in custody” at the time he voluntarily removed them for a close look by the police officer. " ' "[C]ustody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived” ’ ” (People v Johnson, 91 AD2d 327, 328, affd 61 NY2d 932, quoting People v Rodney P., 21 NY2d 1, 9). Questioning an individual in his own home, without more, is not sufficient to conclude that the interrogation was custodial (People v Claudio, 85 AD2d 245, 261, affd 59 NY2d 556). There were, in this case, no additional significant circumstances upon which to predicate a finding of a custodial interrogation (see, People v Paulin, 25 NY2d 445, 449).
In all other respects the order of the suppression court must be affirmed. (Appeal from order of Cattaraugus County Court, Kelly, J.—motion to suppress.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902044/
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Order unanimously affirmed. Same memorandum as in People v Miles ([appeal No. 1], 136 AD2d 958 [decided herewith]). (Appeal from order of Supreme Court, Erie County, Marshall, J.—CPL art 440.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129278/
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— Order affirmed, with ten dollars costs and disbursements. Opinion
Per Ouriam.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129279/
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Learned, P. J.:
This is an action to foreclose a bond and mortgage of $1,000 given by Reynolds and his wife, defendants, to Loren Wilson, plaintiff’s testator. The defense was usury, in that the plaintiff agreed to loan the defendants $1,000, and was to receive a bonus of $50, and that he delivered them only $950, for which sum the bond and mortgage of $1,000 was given.
The questions presented on the appeal arise on the exclusion of evidence under section 829, Code of Civil Procedui’e.
Reynolds having been sworn as a witness for the defendants, was asked, did Wilson take any part, in the signing of that mortgage? And this was excluded, we think, properly. The giving of the mortgage was a personal transaction between the deceased and the defendant.
Again there was an offer to prove that Wilson was not at the table and took no part in the execution of the mortgage either by conversation or otherwise. This bond and mortgage purported to be a personal transaction between the deceased and the defendant. (Koehler v. Adler, 91 N. Y., 658.) The testimony offered was intended, in someway, to affect that personal transaction. (Pinney v. Orth, 88 N. Y., 447.) No witness had previously testified, as was the case in the case last cited.
Again the witness was asked at what time and at what place was the money paid for which the mortgage was given. This was a transaction with the deceased. The money was loaned by the *48deceased, and testimony as to the time and place was testimony concerning the personal transaction.
The defendant Lucinda Reynolds, one of the parties to the mortgage, was called as a witness for the defendants, and several questions were put to her, viz., whether at the time of the meeting between herself, her husband and Wilson, any money was paid by Wilson to her husband; whether she had any conversation with Wilson; who delivered the bond and mortgage. Offer was also made to show by her that she was sitting in the office, twenty feet away, and saw Wilson pay Reynolds $950, and heard Reynolds say to Wilson, “here is $950, as we agreed.” Now the transaction was, as averred by the answer, a loan to the defendants, and by the answer the bond and mortgage was made and delivered by the defendants to the plaintiff, and the money was received by the defendants. Lucinda Reynolds then was a party to the transaction, just as she was a party to the mortgage. She was not a mere spectator of the dealing between her husband and Wilson, but she was present and having a personal transaction with Wilson.
Where two persons on the one side make a bargain with a third, all three being present, and one of the two does all the talking on their side, if the other is not having a personal transaction with the third, under the section in question, then the evil against which the exception in that section is aimed has not been prevented. And we can best interpret that section by noticing its evident object. (Farnsworth v. Ebbs, 9 Sup. Ct. N. Y. [2 Hun], 438'; Holcomb v. Holcomb, 27 id. [20 Hun], 159.)
Again, the defense, on behalf of Lucinda Reynolds, offered to prove by Henry R. Reynolds that Lucinda did not participate in the negotiation except by signing the mortgage. This was an offer to prove something in regard to a personal transaction which Henry R. Reynolds had with the deceased. It was testimony concerning this personal transaction, and was inadmissible.
The provisions of this section are wise. Great injustice might be done if such testimony could be given of transactions with a party, to which, by reason of his death, he could make no reply. And the principle which lies at the bottom of this provision of the statute should be faithfully applied, however ingeniously the questions and offers may b.e made.
*49We do not think that the evidence of Burnham .was conclusive, so as to require a reversal on the question of fact.
The judgment is affirmed, with costs.
Present — Learned, P. J., Boardman and Bockes, J J.
Judgment affirmed, with costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129280/
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Learned, P. J.:
The plaintiff, a member of Hudson City Lodge of the Independ ent Order of Odd Fellows, sued the defendant, as treasurer of that lodge, to recover sixty-seven weeks’ “ benefits ” as a sick member, at four dollars per week, less sixty-seven dollars, which he had received from the lodge by payments at the rate of one dollar per week. He recovered the amount claimed, and the defendant has appealed. Several important questions are presented, some of which it may be unnecessary to consider.
The facts material to the question which we examine first, are as follows: The plaintiff became a member of the lodge in 1849, and has been a member ever since. He signed the constitution and by-laws. At that time the by-laws provided that during the sickness of a member, qualified to receive sick “benefits,” he should receive (if he had attained the scarlet degree), after the first two weeks’ sickness, four dollars per week. It was provided by the constitution that the lodge might make, alter or amend its by-laws. And it was provided by a by-law that the by-laws might be repealed, annulled, altered, suspended or amended in a manner therein pointed out. On the 9th day of July, 1878, the by-laws were regularly amended to the effect, “ that in case a brother has been sick and drawing benefits for twelve months, the lodge shall reduce the same to one dollar per week.”
The plaintiff became sick October 5, 1875, and continued to be sick till the commencement of the action. He was a scarlet member and entitled to receive “ benefits.” The lodge had paid him four dollars per week from the commencement of his sickness up to July 8, 1879; that is, up to twelve months after the passing of the amendment to the by-laws. Since that time they had paid him one dollar per week, which he had received under protest. And one very important question is whether he is entitled to receive four dollars per week according to the by-laws, as they were when he joined; or only one dollar per week, according to the by-laws as they, now exist. The plaintiff claims that the amendment is void as *51interfering with a vested right and impairing the obligation of a contract.
Now we must notice, in the outset, that by the amendment this plaintiff has not been put upon a different footing from that of other members. From the time the amendment took effect it gave to every sick member four dollars per week for twelve months and one dollar per week thereafter. It acted upon all alike, whether they were sick or well. The lodge did not reduce the plaintiff’s “ benefits ” to one dollar per week from the time of the amendment. It gave to him, as by the amendment it promised to all, the four dollars per week for twelve months. If the lodge had at once reduced the amount which the plaintiff was to receive to one dollar per week, on the ground that he had already received twelve months of “ benefits ” at the rate of four dollars per week, then the amendment to the by-laws would have operated unequally. The plaintiff in that case, would not, from the time of ■ the passage of that amendment, have received equal rights with other members. In this very important respect, therefore, the lodge does not claim for the amendment any retroactive effect, as was claimed by the defendants in Coyle v. Father Mathew Total Abstinence Benevolent Society (17 Week. Dig., 17), but it puts all its members in an equal position from the time of the passage of the amendment.
And at this point it may be remarked, that if the plaintiff’s position be correct, it would seem to follow that, when there is a sick member of the lodge the by-law regulating “ benefits ” cannot be changed. For if it cannot be changed as to the sick member, then a change as to the others would be unequal in its operation and therefore could not be pei-mitted.
The plaintiff claims that by the sickness he acquired a vested right to the rate of payment provided for by the by-laws as they then existed, and that a subsequent amendment cannot alter that, rate as to him. Now we must notice that if the by-laws, as they existed when the plaintiff signed, constituted a contract that he should be paid at a certain rate in case of sickness, then that contract existed just as much before his sickness as afterwards. If the constitution and by-laws formed an unconditional contract with the plaintiff that the lodge would pay him four dollars per week in case of sickness, then, so long as the plaintiff performed his part, *52the lodge could not modify its obligation, even before the sickness had occurred. To illustrate: A contract of life insurance is binding on the insurance company, although the insured be still living; and the company cannot vary or annul it (unless by virtue of some reserved right), although the time for the payment of the amount insured has not arrived. So in the present case, if the contract has the absolute character claimed by the plaintiff, it had that character before he was sick. If it cannot be modified after sickness, it would seem to' follow that it cannot before. And the plaintiff must claim, in order to be consistent, that there can never be any alteration of that by-law which establishes the rate of “ benefits,” without the conscn*- of all the members of the lodge.
The only contract between the plaintiff and the lodge is that which is made by the constitution-and by-laws signed by him. And relying on these as the contract, he must take them all. He cannot claim the benefit of one and reject another. He cannot single out one by-law and say that this is absolute and that it cannot be amended and repealed, because the power to amend or repeal is contained in another by-law. But constitution and by-laws must be taken as a whole. And the by-law on which he relies does not of itself constitute the whole contract. That by-law was liable to be amended or repealed, and it was amended. The power to amend was as much a part of the contract, into which the lodge entered, as was the by-law under which the plaintiff claims.
As this is a question of the construction of a contract, it may be of little importance to consider the fairness and reasonableness of such a power of amendment. And yet a word or two on that point may show the propriety of the construction which we give to the contract. This society is benevolent in its design. It aids its sick members from funds arising from dues and entrance fees and the like. Now there might be such an amount of sickness' as would rapidly exhaust all the funds, so that they would prove insufficient for demands upon them. It is well, therefore, that the society should retain a power of control, by which it may diminish or increase its “benefits” according to its ability. Those who are earliest taken sick have no priority over those who may be sick at a later day. They have no vested right to exclude others. Therefore it is that the society retains the right, by amending its by-laws in a legal *53manner, to regulate its “ benefits ” as it thinks may be for the advantage of all its members.
Some cases are cited by the plaintiff in support of his views. (Kent v. Quicksilver Mining Company, 78 N. Y., 159.) If that case be examined with the reports of the cases below (reported in 12 Hun, 53, and 17 Ilun, 169), it will be found that the decision does not bear on the present question. A good deal is said in the opinion ; and detached sentences may be picked out favorable to the present plaintiff. But it is the decision, not the opinion, which is authoritative. The question involved was as to the right of a corporation to issue preferred stock as against the holders of common stock, when no privilege to do so had been reserved; a question quite unlike the present.
The case of Coyle v. Father Mathew Society (17 Week. Dig., 17), was a case where a society endeavored by a by-law to inflict a penalty for a past delinquency, to which the member was not liable when it took place. That is quite different from the present.
The case of Gundlach v. Germania Mechanics’ Association (4 Hun, 339) is cited by plaintiff and relied upon by the learned justice. But it will be seen, by reference to the opinion, that the court held that the amendment to the articles did not attempt to affect the rights of the plaintiff. They construed the amendments as intended to apply only to the case of members who should die after its adoption. And the decision is put on that ground.
On the other hand, in McCabe v. Father Mathew Society (31 Sup. Ct. N. Y. [24 Hun], 149), it was held that such a society might ■suspend their by-laws granting weekly benefits. The only difference between that case and the present is that the plaintiff there fell sick after the suspension of the by-law. That is a point which we have already discussed.
In the view which we have thus presented we are of the opinion that the agreement under which the plaintiff claims was subject to be amended by virtue of the constitution and by-laws, and that the right to amend constituted a part of the contract. That the plaintiff, therefore, is not entitled to recover. (Fugure v. Mut. Soc. St. Joseph, 46 Vt., 362.)
Again, there is another very important question, viz., whether the *54plaintiff has any right to bring this action until he has exhausted all remedies by appeal to the superior authorities of the society.
The by-laws of the lodge say that it shall be governed in all things not provided for in these by-laws by the constitution and general regulations of the order. Attached to the by-laws are certain rules for subordinate lodges, of which number one says that the D D. Grand Master shall decide, in writing, all questions of law and usage properly presented to him for that purpose. Numbers four and five provide for an appeal to the Grand Lodge. Further provisions are contained in subsequent rules.
The appellant’s brief contains a quotation from general regulations, article 14, section 2; but we are unable to find this in the case. It may have been assumed to be a part of the papers, although not printed; but, aside from that quotation, there is enough to show that a right of appeal from the action of the defendant lodge exists. And this, too, without referring solely to articles 7 and 8, section 7, as this last section is claimed to apply to penalties strictly so called.
But rule No. 1, above cited, seems to be broad enough to give an appeal on all questions of law and usage. And we see no reason why this should not include a question like that presented in this case.
If this be so, then it may be well said that the contract, whatever it may be on the part of the lodge, includes in itself a pror vision for the decision by the appellate tribunals of the society of the matter in dispute. And therefore it may be urged that, not until these appellate tribunals have decided against the plaintiff, can he say that he has been injured. In other words, it may be claimed that until they shall have decided against him it does not really appear that the defendant has refused to pay what the plaintiff demands. The plaintiff would not claim that a refusal by the treasurer, not authorized by the lodge, was a refusal by the lodge-so as to justify an action. So by analogy the defendant now urges that the refusal by the lodge is not final until the remedy by appeal has been exhausted.
This doctrine is substantially recognized in Lafond v. Deems (81 N. Y., 508), and also in White v. Brownell (2 Daly 329). The case of Tribe of Red Men v. Schmidt (57 Md., 98 ; 25 Alb. L. J., 333), goes to the extent of holding the decision of the appel*55late tribunal of tbe society conclusive. (See, also, Harrington v. Working Men’s Benevolent Association, 27 Alb. L. J., 438.)
"Without discussing the question, whether or not, the decision of the highest appellate tribunal of the society is conclusive, we are of the opinion that the contract into which the plaintiff entered requires him first to seek redress within the society itself by carrying the question to the highest tribunal. For it is evident that every part of the Constitution and lawful by-laws enter into his contract and are to be considered therewith.
Judgment reversed, new trial granted, costs to abide event.
Present — Learned, P. J., Boardman and Bockes, JJ.
Judgment reversed, new trial granted, costs to abide event.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129282/
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BoaRdmaN, J.:
The court below did not properly state the legal questions before the jury. Upon the evidence it is certainly a grave question whether the act charged and proved was larceny or malicious mischief. To constitute larceny there must have been a felonious, intent, animo furamdi or luori oaúsa. The malicious killing of a horse is a misdemeanor. (Penal Code, § 654; 2 P. S., *695, and chap. 682, Laws of 1866.) The offenses are quite distinct. In either case there is a trespass. In larceny the taking must be for the purpose of converting to the use of the taker. In malicious mischief no such intent is necessary. In the present case the evidence tends to show a taking of the horse to kill him, with a sole desire to injure the owner. It was incumbent on the coui-t then to point out to the jury the legal elements in the crime of larceny, so as to distinguish it from malicious mischief. This, we think, was not done. The jury was told, in substance, if defendant took or procured to be taken this horse, and killed or aided in killing him, he must be found guilty. (Fols. 283, 284, 296.) In no part of the charge is this language modified or qualified.
The seventh request to charge is as follows: “ There must have been a felonious intent, for without such an intent there was no crime, and the felonious intent must have been formed before the taking; and that if, before the taking of the horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute, classed among misdemeanors under the term of malicious mischief.” The defendant excepted to the refusal to charge as requested. The request to charge, the refusal to charge, and the exception are all very informal and inartificial, but sufficient, we think, to present the important point in the case.
The defendant was' entitled to have the jury instructed in *59substance as requested. Mr. Wharton, in his work on Criminal Law (§§ 1781-1784), 'has considered whether larceny can exist where there is no intent on the part of the taker to reap any advantage from the taking. He has reviewed the decisions from the case of Rex v. Cabbage (Russ. & Ry. C. C., 292), cited by the district attorney, to the time of his writing, and concluded that the qualification, “ lueri eausa,” has been accepted by our courts as an unquestioned part of the common law. He says (sec. 1784): “ Thus it has been frequently held to be a misdemeanor, of the nature of malicious mischief, to kill an animal belonging to another, though it has never been held larceny so to kill and take, unless some benefit was expected by the taker.” And he cites, in support of such statement, among other cases, Commonwealth v. Leach (1 Mass., 59); People v. Smith (5 Cow., 258); Loomis v. Edgarton (19 Wend., 420). The conclusion is sustained by the authorities.
It was a serious matter for the defendant whether he should be convicted of grand larceny upon facts which he claimed could only constitute malicious mischief. He had the right to have the distinction pointed out to the jury. He requested it, but it was not done. Thus the court neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been convicted of a felony, while the facts and the charge were equally applicable to a misdemeanor. , The learned county judge very properly and fully recognized the serious importance of this question when he stayed the execution of the sentence pending an appeal.
There are various other questions presented, but it is unnecessary to consider them, since, upon the point already discussed, a new trial must be granted.
The judgment and conviction are reversed, and a new trial is granted.
Bocees, J., concurred.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129283/
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Learned, P. J.
(dissenting):
As the opinion of the majority of the court rests upon one alleged error, I shall examine that only.
There was evidence to justify the conclusion that the defendant took the horse wrongfully into his possession before the time when, *60as the jury might have found, he and others hilled it. And the question presented is whether a wrongful taking,' with the intent at the time to subsequently destroy the property taken, in order to injure the owner, is larceny; or whether,- on the other hand, in order to constitute larceny, the wrongful taking must be with intent to benefit the person who takes.
Grand larceny is the felonious taking and carrying away the personal property of another of the value of more than twenty-five dollars. (2 E. S., m. p. 679, § 63.) The only thing required by the definition in the respect now under consideration, is that the taking be felonious. I cannot see why it is not as felonious to take another’s property, with intent to injure him, as to do the same act in order to benefit the taker. Indeed, the former is the more malicious act of the two.
The Penal Code (§ 528) has made the matter clear by saying that the intent may be “to deprive or defraud the true owner of his - property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person.” In my opinion such was the law before the enactment of that Code.
Blackstone says that “felonious” means “done animo furandi, or as the civil law expresses it, lucri causa.” (4 Bl. Com., 232, ■citing Inst., 4.1.1.) It is worth noticing that the passage thus cited by Blackstone as authority for the phrase, lucri causa, does not. •contain those words, or words similar. On the contrary, theft is, in that passage, defined as the fraudulent dealing with a thing, and nothing is said about such dealing being for the sake of gain. Another passage, however (Dig. 47, 213), seems to include in its definition, gain to the taker, “ lucri faciendi gratiaP
But when the definition of theft is taken into the English law by Braeton, he leaves out this clause, and says only that the taking must be done “ animo furandiP (Bract. 150 5., Twiss’ ed., vol. 2, p. 508.) Lord CoKe’s definition, also, does not include the idea of “ lucri causa.” (3 Inst., 107.)
Mr. Stephens, in his History of the Criminal Law, speaking on this very point, says: “ To this day it is a part of the law of this country, as settled by very modern cases, that the motives which lead a man to commit theft are immaterial; and that the definition of the offense includes an intention to deprive the owner of his *61property permanently.” (Yol. 3, p. 132.) Again, in Stephen’s Criminal Law (at p. 227), the author says that the act may be done “ from any motive whatever,” establishing this by the citation of authorities. To the same effect also is Roscoe’s Criminal Evidence (7th ed.), 623 [644]. In a careful note to Halloway’s case (1 Denison, 370) it is said : “ Every wrongful taking Avithout any color of right, Avith intent to deprive the owner wholly of his property, is larceny.”
In Bishop’s Criminal Law (vol. 2, § 846), Mr. Bishop states that the English courts seem at last to have utterly overthrown the old notion of lucri ca-usa; and he cites, to show this, the language of Pollock, J., in Reg. v. Jones (1 Denison, 188) and the case of Rex v. Gadbage (R. & R., 292).
I may refer also to the definition in the Mirror for Magistrates, as given by Mr. Stephens in his history (vol. 3, p. 134). “ Larceny is the treacherously taking away from another movable corporeal goods, against the will of him to whom they do belong, by evil getting of the possession or the use of them.” And, without quoting, I may refer also to Hawkins P. C. (p. 89), where the definition of larceny says nothing of lucri causa. Nor do Mr. Wharton’s views in American Criminal Law (§ 1781), appear to be different from those above stated.
In Wharton’s Criminal Law (§ 899), however, a view of the English law is taken, which appears to differ from that of the text writers above cited; and a statement is made as to American decisions on this point, which I shall hereafter examine.
Passing from this summary of text writers, I may say that I find no decision in this State on the question. Some cases are referred to in this connection. Loomis v. Edgerton (19 Wend., 419), decides only that malicious mischief is a misdemeanor. There was in that case no taking of the property, and therefore could have been no larceny. People v. Smith (5 Cow., 258) only held that malicious mischief was a crime. The prisoner had not taken away the property, a cow, and was not indicted for larceny. Peoples. Anderson (14 John., 294) only held that the bona fide finder of a lost article was not guilty of larceny in appropriating it. None of these cases touch the present case. .
If we turn to the English cases we find several in which prisoners have been held guilty of larceny who have taken property, not *62luori causa. Reg. v. Jones (ut supra), was a case where the prisoner, having received several letters belonging to, and addressed to B., destroyed one of them, in order to suppress inquiries respecting the prisoner’s character. This was held larceny; and Polloce, J., said : “ Will it be contended that picking a man’s pocket, not to make yourself rich, but to make him poor, would not be a larceny.” Rex v. Cabbage [ut swproi) was the case, often cited, where a prisoner was held gnilty of larceny, who had taken a horse of the prosecutor and had backed it into a coal pit, and thus had killed it, with no motive of personal gain; a case I may say, much like the present, except that the prisoner had more excuse for his act. In Rex v. Wynn (1 Denison, 365), the prisoner, a letter sorter in the post-office, took a letter and dropped it into the water-closet, with intent to destroy it, and to deprive the post-office authorities of their letter. There was no personal gain to the prisoner ; yet he was held guilty of larceny. See also Reg. v. Hollaway, above referred to.
In Mr. Wharton’s Criminal Law, he cites, apparently to sustain a contrary doctrine, Commonwealth v. Leach (1 Mass. 59). But the case decides nothing on this point. It only holds that an indictment for poisoning a cow is within the jurisdiction of a Court of Sessions. No question as to the taking of personal property was in any way inyolved.
Mr. Wharton also expresses the opinion that American cases sustain the doctrine of lucri causa. An examination shows this opinion to be incorrect. He cites in support of this view State v. Council (1 Overton [Tenn.], 305). This held that stabbing a horse was indictable. It does not appear that there was any taking; so the question of larceny was not involved. He also cites Resp v. Teischer (1 Dallas, 335), a case which has nothing to do with larceny, and which only holds that the malicious killing of a horse is'indictable. No suggestion is made in that case that the horse was ever taken from the owner; and nothing is said as to larceny. He also cites State v. Hawkins (8 Porter [17 Ala.], 461), which held that taking a slave, in order to set her free, was not larceny. How the question of larceny may apply to the case of a slave, we need not discuss. It is enough to say that the doctrine, for which that case is cited by Mr. Wharton, is overruled in the very State in which it was decided, in Williams v. The State (52 Ala., 411), *63hereafter referred to; and that in that last ease the court did not deem it necessary even to comment on State v. Hawkins. Mr. Wharton also cites McDaniel v. State (16 Miss., 401). That was an indictment for murder. In the course of the opinion, a definition of larceny is incidentally given ; but there was no attempt, or occasion, to define the crime accurately. The doctrine of lucri ■causa is overruled in Mississippi in the case, hereafter referred to, of Hamilton v. State (35 Miss., 214). These are the only cases that are referred to, for the purpose of showing that decisions in this country sustain the doctrine of lucri causa. It will be seen that ■only one supports the doctrine; and that one has been overruled in the State, where it was made.
On the contrary, Hamilton v. The State (ut supra) held that the taking away of a slave, in order to free him, was larceny. Here there could be no gain to the taker; and therefore, no act done lucri causa ¡ only an intent to deprive the owner of his property. Of course this case overrules any remark to the contrary made in McDaniel v. The State (at supra).
Dignowitty v. The State (17 Texas, 521), quite similar to the present, held that the taking of property with intent to destroy it was larceny.
In Williams v. The State (ut supra), which is a ease closely in point, the court say : “ no benefit to the guilty agent may be sought, but only injury to the owner.” They hold that the intent need not be gain to the taker; and therefore, in fact, they , overrule State v. Hawkins (ut supra), if that case held otherwise.
The same doctrine is distinctly decided in People v. Juarez (28 Cal., 380); in State v. Ryan (12 Nevada, 401); in Keely v. State (14 Ind., 36); in State v. Davis (38 N. J., Law 176); and in State v. Brown (3 Strob., 508); in which last case the court characterized the doctrine of State v. Hawkins (ut supra) as “ a very novel and startling proposition.” We have seen that it is a proposition already overruled in the State where it was advanced.
In United States v. Durkee (McAllister, 196), it was held that, where members of a vigilance committee seized guns as weapons of defense, this was not larceny. But that act was done neither with intent to injure the owner, nor for personal gain. The case decides nothing on the point in discussion. And the courts of the *64State, where it was decided, have just been shown to have overruled the doctrine of lucri causa. [People v. Juarez, ut supra.)
It may then, I think, be said to be established by the gieal weight of American authorities, with no real exception, that to constitute larceny it is not necessary that th.e intent of the taker should be to appropriate the property to his use; that, where the other elements exist, it is enough if the intent be to deprive the owner permanently of his property.
If, in the absence of decisions in our own State, we are not to be guided by these text books and by these decisions of other states, and of England, and are to consider the question on principle, then I think the same conclusion should follow. 'That there must be a taking is undoubted ; that it must be wrongful and without excuse or color of right. Put when these circumstances exist, what does it matter whether the motive of the person taking is to benefit himself or to injure the owner ? Suppose the property is a thing highly valued by the owner y a thing which the person taking it cannot use and does not intend to use; and suppose that, out of malice, he takes it from the owner and keeps it permanently, in order to deprive the ewner of it, what is this act ? Not malicious mischief, because the property is not injured ; certainly not a mere trespass, because it has the elements of malicious wrong doing. Is such a Wrong-doer to escape because he can say: “I did not take the property lucri causaJ Yet, on the doctrine against which I am contending, such a wrong-doer would escape altogether. He would be guilty of no malicious mischief, and if not guilty of larceny, would be only a trespasser; a conclusion which seems to me plainly incorrect.
Undoubtedly where there is no taking there is no larceny, although there may be malicious mischief; but when the property has been in fact taken with intent to deprive the owner of it permanently, it does not matter whether the thief intends to kill and eat the cow, or to kill and bury it.
In a large majority of cases the thief intends personal gain. Perhaps, for this reason the phrase lucri causa rarept in, to mark the distinction between larceny on the one hand, and on the other hand the wrongful taking for temporary use and to return (State v. Self,, 1 Bay, 242), or to use and leave. (Rex v. Phillips, 2 East Pl., 662.) It might have been intended to..note the fact that, in *65eases like these, there was no permanent appropriation. But, as I think, the phrase was misused, or the distinction was incorrect, when it was thought that a wrongful taking with intent to destroy in order to injure the owner was not larceny.
I think it incorrect to call such an act as that of the defendant merely malicious mischief ; because that is a crime which may be committed without any wrongful taking of the property. On the other hand, the taking is of the very essence of larceny. "When we find that circumstance of a taking, we have only to see whether the taking was excusable, or wTas a mere trespass, or was larceny. It is of little consequence which of two bad and' illegal motives influenced the wrong-doer, whether to profit himself or to injure the owner.
I think there was no error in the charge in this respect.
Present — Learned, P. J., BoaRdmaN and Bocees. JJ.
Judgment and conviction reversed, and new trial granted.
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LeaRNEd, P. J.:
Franklin Bull, in April, 1879, was sick. He determined to change bis will previously made by adding a codicil, so as to give $3,000 to be equally divided among six nephews, of whom plaintiff is one. Lie stated that determination to George Bull, who was an executor of the existing will and tbe father of the residuary and principal devisee and legatees therein. George Bull thereupon stated to Franklin that he need not make a codicil, but that he, George, would pay the $500 to each of the nephews.
The learned justice who tried the case has found as a matter of fact, that it was then understood between George and Franklin that these sums were to be paid by George out of Franklin’s estate, and not that George was to pay them personally, and that the promise was given and received on this understanding. On an examination of the evidence we are satisfied that this finding is correct.
Franklin died the same month without making the codicil which he had intended. Letters testamentary under his will were issued to George and to one Dana, the executors. Dana transacted most of the business in the settlement of the estate. After the death of Franklin, George admitted the promise and stated that he intended that it should be carried out. The residuary legatees under Franklin’s will refused to consent to the payment; and payment has not been claimed from Franklin’s estate. That estate is not *71settled,- and amounts over liabilities to $15,000. George Bull died in November, 1879, and the defendant is bis executrix. Tbe other five nephews have assigned their claims against the estate of George to the plaintiff. He now seeks to recover from the estate of George the $3,000 and interest.
If this were a promise to pay out of the estate of Franklin,' and if it therefore had the effect to impose a trust upon that estate, then such trust must be enforced against the surviving executor of Franklin’s estate.
If, on the other hand, it were a promise to pay personally, then as George was not a legatee or devisee, he did not divert, by this promise, to his own benefit anything from the plaintiff and his assignors. He practised no fraud upon them.
We think that the learned justice correctly stated that, in all the cases bearing upon this subject, the promise which has been enforced has been made by a person who, by descent, or devise or bequest, has received from the decedent, property out of' which the proposed devise or legacy would have come; which proposed devise or legacy was prevented by the promise of the person thus held liable.
And if, in this view, it be said that George, as an executor of Franklin, received the estate charged with this trust; if it should be claimed that by this oral promise of one who was to be executor a legacy was given, then the trust must be enforced out of the estate of Franklin.
The reason of the rule is explained in Williams v. Fitch (18 N Y., 549), and cases are cited; and it will appear that in these cases the promissor has, by his promise, prevented the diverting of property from himself. He has not, so far as we can see, been held liable when he was a stranger, not entitled to receive the property by inheritance, bequest or devise. And certainly when the only promise was, by the understanding of the parties, to be performed out of Franklin’s estate, we do not seé that George could be personally liable. If not; then not his estate.
The judgment should be affirmed, with costs.
Present — Leaeubd, P. J., BoakdhaN and BocKes, JJ.
Judgment affirmed, ydth costs.
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[Cite as State v. Crowthers, 2022-Ohio-2206.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case Nos. CT-2021-0066
MARCUS CROWTHERS : CT-2021-0067
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case Nos. CR2021-0395 &
CR2021-0490
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 27, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAYLOR P. BENNINGTON TODD W. BARSTOW
27 North Fifth Street 261 West Johnstown Road
P.O. Box 189 Suite 204
Zanesville, OH 43701 Columbus, OH 43230
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant, Marcus Crowthers, appeals his November 22, 2021
sentences by the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-Appellee
is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 29, 2021, the Muskingum County Grand Jury indicted appellant on
one count of possession of drugs in violation of R.C. 2925.11 (5th degree felony) and one
count of possession of drug paraphernalia in violation of R.C. 2925.14 (4th degree
misdemeanor) (Case No. CR2021-0395). Appellant was housed at the Muskingum
County Jail on the pending charges along with a parole hold.
{¶ 3} On August 4, 2021, appellant urinated in a cup and threw the contents into
an adjacent cell housing two other inmates. Appellant was infected with hepatitis C. As
a result, on September 8, 2021, the Muskingum County Grand Jury indicted appellant on
two counts of harassment with a bodily substance in violation of R.C. 2921.38 (3rd degree
felonies) (Case No. CR2021-0490).
{¶ 4} On October 20, 2021, appellant pled guilty to all four counts. A sentencing
hearing was held on November 22, 2021. By entries filed same date, the trial court
sentenced appellant to nine months in prison on each of the harassment counts, to be
served concurrently. On the possession counts, the trial court sentenced appellant to an
aggregate term of six months in prison, to be served consecutively to the nine month
sentence for a total sentence of fifteen months. The trial court also terminated appellant's
postrelease control and imposed the remaining time, 1,414 days, to be served
consecutively to the fifteen month sentence.
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 3
{¶ 5} Appellant filed an appeal in each case and this matter is now before this
court for consideration. The assignment of error is identical in each case and is as follows:
I
{¶ 6} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
SENTENCING HIM IN CONTRAVENTION OF OHIO'S SENTENCING STATUTES."
I
{¶ 7} In his sole assignment of error in each case, appellant claims the trial court
erred in sentencing him in contravention of the felony sentencing statutes. We disagree.
{¶ 8} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶ 31.
Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 4
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 9} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 10} "A sentence is not clearly and convincingly contrary to law where the trial
court 'considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.' " State v. Morris, 5th Dist. Ashland No. 20-COA-
015, 2021-Ohio-2646, ¶ 90, quoting State v. Dinka, 12th Dist. Warren Nos. CA2019-03-
022 and CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶ 11} There is no dispute that the sentences imposed herein are within the
statutory ranges for felonies of the third and fifth degree and a misdemeanor of the fourth
degree. R.C. 2929.14(A)(3)(b) and (5); R.C. 2929.24(A)(4). In fact, the trial court
sentenced appellant to the minimums.
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 5
{¶ 12} Appellant argues the trial court failed to consider the principles and
purposes of felony sentencing under R.C. 2929.11 and the seriousness and recidivism
factors under R.C. 2929.12.
{¶ 13} R.C. 2929.11 governs the overriding purposes of felony sentencing and
states the following in pertinent part:
(A) A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the offender
and others, to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources. To achieve those
purposes, the sentencing court shall consider the need for incapacitating
the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the
offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact upon the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders.
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 6
{¶ 14} R.C. 2929.12 governs factors to consider in felony sentencing and states
the following in pertinent part:
(A) Unless otherwise required by section 2929.13 or 2929.14 of the
Revised Code, a court that imposes a sentence under this chapter upon an
offender for a felony has discretion to determine the most effective way to
comply with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code. In exercising that discretion, the court shall
consider the factors set forth in divisions (B) and (C) of this section relating
to the seriousness of the conduct, the factors provided in divisions (D) and
(E) of this section relating to the likelihood of the offender's recidivism, and
the factors set forth in division (F) of this section pertaining to the offender's
service in the armed forces of the United States and, in addition, may
consider any other factors that are relevant to achieving those purposes and
principles of sentencing.
{¶ 15} R.C. 2929.11 does not require the trial court to make any specific findings
as to the purposes and principles of sentencing. Likewise, R.C. 2929.12 does not require
the trial court to "use specific language or make specific findings on the record in order to
evince the requisite consideration of the applicable seriousness and recidivism factors."
State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Therefore, although
there is a mandatory duty to "consider" the relevant statutory factors under R.C. 2929.11
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 7
and 2929.12, the sentencing court is not required to engage in any factual findings under
said statutes. State v. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437, ¶ 17;
State v. Combs, 8th Dist. Cuyahoga No. 99852, 2014-Ohio-497, ¶ 52. "The trial court
has no obligation to state reasons to support its findings, nor is it required to give a
talismanic incantation of the words of the statute, provided that the necessary findings
can be found in the record and are incorporated into the sentencing entry." State v. Webb,
5th Dist. Muskingum No. CT2018-0069, 2019-Ohio-4195, ¶ 19.
{¶ 16} As recently stated by the Supreme Court of Ohio in State v. Jones, 163 Ohio
St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39, R.C. 2953.08(G)(2)(b) "does not
provide a basis for an appellate court to modify or vacate a sentence based on its view
that the sentence is not supported by the record under R.C. 2929.11 and 2929.12."
"Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the
evidence in the record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12." Id. at 42.
{¶ 17} During the plea hearing, appellant admitted he was currently on postrelease
control. October 20, 2021 T. at 7; R.C. 2929.12(D)(1). He did not dispute the statement
of facts for each charge as set forth by the prosecutor. Id. at 13-16.
{¶ 18} During the sentencing hearing, the prosecutor and defense counsel
informed the trial court that the recommended sentences were a joint recommendation.
November 22, 2021 T. at 4-7. The prosecutor deferred to the trial court on the imposition
of consecutive time for the postrelease control violation and defense counsel asked the
trial court "to consider not terminating it at this time." Id. at 6-7. If the trial court was so
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 8
inclined to terminate postrelease control, defense counsel asked for a one year
consecutive sentence to the joint recommended sentences. Id. at 7.
{¶ 19} The trial court heard how appellant has a long history of substance abuse
and also suffers from mental illness. Id. at 6-8; R.C. 2929.12(A)(4). Appellant admitted
to recently serving five years in prison and "I got high every day in prison" and engaged
in a couple fights. Id. at 8-9. The trial court found this behavior to be significant. Id. at 9.
The trial court sentenced appellant pursuant to the joint recommendation and then turned
its attention to the postrelease control violation. Id. at 11.
{¶ 20} The trial court reviewed the presentence investigation report and appellant's
criminal history dating back to 1998, including a previous violation of community control
for offenses committed in 2005. Id. at 10, 12-14. The trial court noted appellant was
recently out of prison for ten months during which he committed two felonies and did not
seek treatment for his drug addiction. Id. at 14-15. The trial court considered the
purposes and principles of sentencing contained in R.C. 2929.11 and the seriousness
and recidivism factors in R.C. 2929.12 and found "your history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from future
crimes" and "you are no longer amenable to the post-release control." Id. at 15. The trial
court terminated appellant's postrelease control and imposed the remaining 1,414 days,
to be served consecutively as required. Id. at 15-16; R.C. 2929.141(A)(1).
{¶ 21} Upon review, we find the trial court's sentence is not clearly and
convincingly contrary to law. The trial court considered the R.C. 2929.11 and 2929.12
factors, properly imposed postrelease control, and sentenced appellant within the
statutory ranges.
Muskingum County, Case Nos. CT-2021-0066 & CT-2021-0067 9
{¶ 22} The sole assignment of error in each case is denied.
{¶ 23} The judgments of the Court of Common Pleas of Muskingum County, Ohio
are hereby affirmed.
By Wise, Earle, P.J.
Wise, John, J. and
Delaney, J. concur.
EEW/db
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Pine, J.
(dissenting). I must dissent, as I disagree with the majority’s position that, in order to avoid inconsistency, a finding by this court that the People provided a "sufficient ground for an extension” (Rules of App Div, 4th Dept, 22 NYCRR 1000.3 [a] [1]) must be equated with "a reasonable period of delay resulting from * * * appeals” (CPL 30.30 [4] [a]). I would hold that the People failed to meet their burden of proof that the period from April 20, when the appeal should have been perfected, to August 30, when it was perfected, was a reasonable period of delay for CPL 30.30 purposes. I would charge the People with that 132-day delay, with the result that the People would be well over the six-month limit, so that the judgment would be reversed and the indictment dismissed.
The majority adopts the People’s argument, raised for the first time on appeal, that our refusal to dismiss the People’s appeal constitutes prima facie evidence of reasonableness for CPL 30.30 purposes. In adopting that argument, the majority ignores the obvious difference in language between the two provisions, and the significant differences between the considerations relevant to the two determinations (cf., People v Banks, 59 AD2d 649; see also, People v Green, 131 Misc 2d 641, 644-645). While in some cases the reasons offered by the People for the delay may be sufficient for both purposes, here they are not.
It is beyond argument that a delay may be determined by a court to be reasonable for certain purposes but not for others. For instance, a court may grant an adjournment at the People’s request, but that delay subsequently may be chargeable to the People on a CPL 30.30 motion. The inquiry for CPL 30.30 purposes would be whether the defendant consented to the delay (CPL 30.30 [4] [b]; People v Meierdiercks, 68 NY2d 613). In addition, a delay may be reasonable for CPL 30.20 purposes but not for CPL 30.30 purposes (see generally, People v Anderson, 66 NY2d 529). This issue should be examined in light of the reasons offered by the People for the delay, to determine whether they satisfy CPL 30.30 requirements. The People’s only justification for the delay in this record is in the People’s response to defendant’s earlier motion to dismiss the appeal. The People argued then that plea negotiations had occurred, and catalogued the heavy work load of the Appeals Bureau. With respect to plea negotiations, defendant’s attor*963ney averred without contradiction that these consisted of, at most, parts of three telephone conversations consuming a maximum of 15 minutes over a five-day period. Thus, the time consumed in plea negotiations is minimal. With respect to the People’s work load, it is well established that shortage of prosecutorial resources is not an acceptable excuse under CPL 30.30 (4) (g) for failure to comply with CPL 30.30 time limits (see, People v Brothers, 50 NY2d 413). I see no reason why it should be acceptable under CPL 30.30 (4) (a). (Appeal from judgment of Supreme Court, Erie County, Doyle, J.—rape, first degree, and assault, first degree.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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Order unanimously reversed on the law without costs and plaintiff’s motion granted. Memorandum: In December 1981 the bank extended a loan to Cardoray Corporation which was guaranteed by defendant Morris Cramer. The guarantee was unconditional, absolute and continuing in nature and covered not only the 1981 indebtedness but any subsequent indebtedness of the corporation to the bank. Pursuant to its terms, the guarantee could not be changed by oral agreement and any modification, to be effective, was to be in writing signed by a duly authorized officer of the bank. Termination of the guarantee could be effected only upon written notice of discontinuance by the guarantor to the appropriate officer of the bank.
In August 1982 Cramer sold his stock in Cardoray to Bob Daubney Bowling Enterprises, Inc., the principal of which executed a guarantee covering all present and future loans by the bank to Cardoray. The corporation subsequently defaulted in payment and the bank instituted this action on the guarantee.
Cramer concedes that he did not give written notice of discontinuance to the bank to terminate his liability under the guarantee. However, he contends that his guarantee was orally terminated by an officer of the bank in August 1982. The alleged oral agreement cannot operate to terminate Cramer’s obligation. A written guarantee which specifically provides that it can be terminated only upon written notice cannot be waived except in writing signed by the person against whom enforcement of the waiver is sought (General Obligations Law § 15-301 [4]) and the terms of the guarantee cannot be modified except by written agreement signed by the *964party against whom the change is sought to be enforced (General Obligations Law § 15-301 [1]; Chemical Bank v Wasserman, 37 NY2d 249, 252; Nanuet Natl. Bank v Rom, 96 AD2d 898; Central Trust Co. v Bagliore, 78 AD2d 764; Manufacturers Hanover Trust Co. v Trans Natl. Communications, 36 AD2d 709). The circumstance that the bank obtained an additional guarantee from Bob Daubney Bowling Enterprises, Inc. does not extinguish the initial obligation of Cramer absent a writing to that effect (see, Chemical Bank v Wasserman, supra).
Although leave to serve amended pleadings is to be freely given (CPLR 3025 [b]), Special Term erred in granting Cram-er’s motion because the proposed affirmative defense was "so palpably invalid” that granting leave to plead it was inappropriate (Holland Am. Cruises v Carver Fed. Sav. & Loan Assn., 60 AD2d 545). Pursuant to the guarantee, Cramer expressly agreed that his obligation thereunder would not be affected by a loss or change in priority of the bank’s security interest. (Appeal from order of Supreme Court, Onondaga County, Mordue, J.—summary judgment.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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—Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: The court erred in dismissing plaintiff’s complaint for failure to allege special damages. A cause of action based on a publication that is defamatory per se need not include an allegation of special damages (Miller v Radin, 32 AD2d 1046; see generally, 43-44 NY Jur 2d, Defamation and Privacy, §§ 3-4, 167). In such cases, injury to reputation is presumed from the bare fact of the publication and there is no need to plead or prove specific injury or loss as a consequence (see, Hinsdale v Orange County Publ., 17 NY2d 284, 288). A publication is defamatory per se if it imputes to plaintiff incompetence, incapacity or unfitness in the performance of his trade, occupation or profession (see, Mattice v Wilcox, 147 NY 624; 43 NY Jur 2d, Defamation and Privacy, §§ 27-28).
A statement imputing incompetence or dishonesty to the plaintiff is defamatory per se if there is some reference, direct or indirect, in the words or in the circumstances attending their utterance, which connects the charge of incompetence or dishonesty to the particular profession or trade engaged in by plaintiff (see, Kleeberg v Sipser, 265 NY 87, 92; Sanderson v Caldwell, 45 NY2d 398; Grinaldo v Meusburger, 34 AD2d 586, *965appeal dismissed 27 NY2d 598). Here, although the words spoken by defendant did not expressly refer to plaintiff’s profession as a lawyer, it is clear that they were spoken "in reference or relation to” plaintiff’s profession (Gurtler v Union Parts Mfg. Co., 285 App Div 643, 647, affd 1 NY2d 5). The complaint alleges and the answer confirms that the words were spoken by defendant in direct response to a statement concerning plaintiff’s engagement as an attorney. The words clearly address the subject of plaintiff’s ability to practice his profession and were disparaging of his mental capacity and competence as a lawyer. Thus the words spoken, considered in light of the extrinsic circumstances alleged in the complaint, tended to injure plaintiff in his profession and are defamatory per se. (Appeal from order of Supreme Court, Onondaga County, Tait, J.—dismiss complaint.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2020 12:08 AM CDT
- 441 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. VALDEZ
Cite as 305 Neb. 441
State of Nebraska, appellee, v.
Jose A. Valdez, appellant.
___ N.W.2d ___
Filed April 3, 2020. No. S-19-475.
1. Judgments: Appeal and Error. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the court
below.
2. Prior Convictions: Motor Vehicles: Homicide: Sentences: Evidence.
Evidence of a prior conviction must be introduced in order to enhance a
sentence for motor vehicle homicide.
3. Sentences. A sentence is illegal when it is not authorized by the judg-
ment of conviction or when it is greater or less than the permissible
statutory penalty for the crime.
4. Prior Convictions: Evidence: Appeal and Error. Where an appel-
late court determines that the evidence was insufficient to establish a
qualifying prior conviction, the appellate court’s determination does not
act as an acquittal or preclude a trial court from receiving additional
evidence of a qualifying prior conviction.
5. Waiver: Words and Phrases. A waiver is the voluntary and intentional
relinquishment of a known right, privilege, or claim, and may be dem-
onstrated by or inferred from a person’s conduct.
6. Waiver: Estoppel. To establish a waiver of a legal right, there must be
a clear, unequivocal, and decisive act of a party showing such a purpose,
or acts amounting to an estoppel on his or her part.
Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Sentence vacated, and cause remanded
with direction.
Matthew A. Headley, Madison County Public Defender, for
appellant.
- 442 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. VALDEZ
Cite as 305 Neb. 441
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Funke, J.
Jose A. Valdez appeals his conviction and sentence from
the district court for Madison County. Valdez pled guilty
to enhanced motor vehicle homicide, a Class II felony. The
court accepted Valdez’ guilty plea, subject to enhancement,
which the parties agreed to address at the time of sentencing.
At the sentencing hearing, the issue of enhancement was not
addressed and no evidence was adduced on the matter, but the
court treated the offense as enhanced and sentenced Valdez
to a period of 24 to 25 years’ imprisonment and revoked his
driver’s license for 15 years.
Valdez argues that the district court erred in failing to
receive evidence of a prior conviction, as required to sub-
ject him to enhancement penalties under Neb. Rev. Stat.
§ 28-306(3)(c) (Reissue 2016). Valdez contends that the sen-
tence should be vacated and the matter remanded to the district
court for resentencing as a Class IIA felony. The State agrees
that the district court erred in failing to hold an enhancement
hearing, but claims that the appropriate remedy is to remand
for a new enhancement and sentencing hearing. We remand
the cause with direction for a new enhancement and sentenc-
ing hearing.
BACKGROUND
On the evening of December 8, 2017, in Norfolk, Nebraska,
Valdez attended a holiday gathering where he consumed alco-
hol to the point that his ability to operate a vehicle became
appreciably diminished. He left the party and drove east on
a highway until he attempted to turn left at an intersection.
Valdez turned left and crashed into the driver’s side of a vehi-
cle traveling west in the outside lane of the highway.
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Upon arrival, officers observed Valdez sitting in the pas-
senger seat of his vehicle, which had extensive front-end dam-
age and sat off the roadway. An officer spoke with Valdez and
observed that he was slurring his words, that his eyes were
bloodshot and watery, and that he had alcohol on his breath.
Valdez admitted to drinking earlier. Another vehicle was
located in the intersection which had its driver’s side ripped
open. The driver of the second vehicle was unresponsive at the
scene. She was taken to a hospital and died from her injuries
approximately 1 week later.
Valdez was transported to the emergency room of a Norfolk
hospital. A police officer with the Norfolk Police Department
had Valdez’ blood drawn pursuant to a search warrant. Valdez
had a blood alcohol content of .223 of a gram of alcohol per
100 milliliters of blood.
Valdez was charged with motor vehicle homicide. The State
alleged that Valdez was operating the motor vehicle in viola-
tion of Neb. Rev. Stat. § 60-6,196 (Reissue 2010) or Neb. Rev.
Stat. § 60-6,197.06 (Cum. Supp. 2016) and that Valdez had a
prior conviction of § 60-6,196 or § 60-6,197.06, which would
enhance the charge to a Class II felony. Valdez pled guilty to
the offense, and in exchange for his plea, the State agreed to
recommend a maximum sentence of 25 years’ imprisonment
and not pursue additional charges or restitution. The district
court accepted Valdez’ plea and found him guilty subject to an
enhancement hearing. The parties agreed to take up the issue
of enhancement at sentencing, and the court set the matter for
a sentencing hearing. During sentencing, the court considered
the offense to be enhanced to a Class II felony and sentenced
Valdez to a period of 24 to 25 years’ imprisonment, with 1 day
of credit for time served, and revoked his driver’s license for 15
years. However, although in its comments the court referred to
the fact that Valdez has two prior convictions for driving under
the influence (DUI), the court did not receive any evidence
regarding the prior convictions and the parties did not address
enhancement prior to the court’s pronouncement of sentence.
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ASSIGNMENTS OF ERROR
Valdez assigns that the district court erred in (1) finding
him guilty of motor vehicle homicide, a Class II felony, absent
proof of enhancement and (2) imposing an excessive sentence.
Valdez also argues that his trial counsel was ineffective for
failing to (3) file a motion to suppress the blood test results,
(4) file a motion for recusal of the trial court, (5) object to evi-
dence introduced by the State at sentencing, and (6) make an
effective argument at sentencing.
STANDARD OF REVIEW
[1] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision of the court below. 1
ANALYSIS
The issue in this case is whether upon remand the trial
court may conduct a new enhancement hearing. Valdez argues
that his current sentence is invalid, because the court did not
receive any evidence on the issue of enhancement, and that
based on the State’s failure to present evidence, the court
should have found him guilty of a Class IIA felony and sen-
tenced him accordingly. He requests that we remand with
instructions for resentencing on the reduced charge. The State
agrees that remand is required but claims that pursuant to State
v. Oceguera, 2 the appropriate remedy is to remand for a new
enhancement and sentencing hearing.
A person commits motor vehicle homicide when he or she
causes the death of another unintentionally while engaged in
the operation of a motor vehicle in violation of the law of the
State of Nebraska or in violation of any city or village ordi-
nance. 3 Pursuant to § 28-306(3)(b), if the proximate cause of
the death of another is the operation of a motor vehicle in vio-
lation of § 60-6,196 (DUI) or § 60-6,197.06 (operating motor
1
State v. Oceguera, 281 Neb. 717, 798 N.W.2d 392 (2011).
2
Id.
3
§ 28-306(1).
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vehicle during revocation period), motor vehicle homicide is a
Class IIA felony. Pursuant to § 28-306(3)(c), if the proximate
cause of the death of another is the operation of a motor vehicle
in violation of § 60-6,196 or § 60-6,197.06 and the defend
ant has a prior conviction for a violation of § 60-6,196 or
§ 60-6,197.06, motor vehicle homicide is a Class II felony.
In a proceeding to enhance a punishment because of prior
convictions, the State has the burden to prove such prior con-
victions. 4 Usually, the State will prove a defendant’s prior
convictions by introducing certified copies of the prior con-
victions or transcripts of the prior judgments. 5 The existence
of a prior conviction and the identity of the accused as the
person convicted may be shown by any competent evidence,
including the oral testimony of the accused and duly authen-
ticated records maintained by the courts or penal and custo-
dial authorities. 6
[2] We find that enhancement of a motor vehicle homicide
sentence is analogous to habitual criminal enhancement and
enhancement of a DUI sentence. In each of these contexts,
the Legislature has provided for the use of prior convictions
to enhance a sentence. 7 Under § 60-6,197.02(2), the prosecu-
tor is required to present as evidence for purposes of sentence
enhancement a court-certified or authenticated copy of the
defendant’s prior conviction, which shall be prima facie evi-
dence of such prior conviction. Under § 60-6,197.02(3), the
court shall, as part of the judgment of conviction, make a find-
ing on the record as to the number of the convicted person’s
prior convictions. The convicted person shall be given the
opportunity to review the record of his or her prior convic-
tions, bring mitigating facts to the attention of the court prior
4
State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Ristau, 245
Neb. 52, 511 N.W.2d 83 (1994).
5
Ristau, supra note 4.
6
Thomas, supra note 4.
7
See, § 28-306(3)(c); Neb. Rev. Stat. § 29-2221(2) (Reissue 2016); Neb.
Rev. Stat. § 60-6,197.02(2) (Cum. Supp. 2018).
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to sentencing, and make objections on the record regarding the
validity of such prior convictions. 8 We conclude that just as
in the context of habitual criminal and DUI sentence enhance-
ments, evidence of a prior conviction must be introduced in
order to enhance a sentence for motor vehicle homicide. 9
[3] The State charged Valdez with motor vehicle homicide,
a Class II felony under § 28-306(3)(c). A Class II felony is
punishable by 1 to 50 years’ imprisonment. 10 Valdez claims
that his offense was improperly enhanced to a Class II felony,
because the State introduced no evidence of a prior convic-
tion under § 60-6,196 or 60-6,197.06. He claims that without
such evidence, the court could have found him guilty only of
a Class IIA felony under § 28-306(3)(b). A Class IIA felony
is punishable by 0 to 20 years’ imprisonment. 11 A sentence is
illegal when it is not authorized by the judgment of conviction
or when it is greater or less than the permissible statutory pen-
alty for the crime. 12 It is undisputed that the trial court did not
receive evidence necessary to subject Valdez to the enhanced
penalties under § 28-306(3)(c) and that Valdez’ sentence to a
period of 24 to 25 years’ imprisonment exceeds the statutory
limits for a Class IIA felony. Therefore, Valdez’ sentence is
illegal and must be vacated.
The only question that remains is the appropriate remedy
for the State’s failure to adduce evidence of a prior convic-
tion. Under our precedent, we have consistently remanded
for a new enhancement hearing when the State has failed to
produce sufficient evidence of the requisite prior convictions
for enhancement purposes. 13 While we have not previously
8
§ 60-6,197.02(3).
9
See Oceguera, supra note 1.
10
Neb. Rev. Stat. § 28-105(1) (Reissue 2016).
11
Id.
12
State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
13
See, State v. Bruckner, 287 Neb. 280, 842 N.W.2d 597 (2014); Oceguera,
supra note 1; State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v.
Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001); Ristau, supra note 4.
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addressed this issue in the context of motor vehicle homicide,
we have found in the context of habitual criminal enhancement
and enhancement of a DUI sentence that the appropriate rem-
edy is to remand for another enhancement hearing. 14
In Oceguera, the State failed to present sufficient evidence
of three valid prior DUI convictions to support a conviction
for a fourth offense and we remanded for a new enhancement
hearing. 15 In doing so, we recognized that neither our prior
case law nor any federal constitutional law prohibits a new
enhancement hearing. 16 An enhanced sentence imposed on a
persistent offender is not viewed as either a new jeopardy or
an additional penalty for the earlier crimes, but as a stiffened
penalty for the latest crime, which is considered to be an aggra-
vated offense because it is a repetitive one. 17
The U.S. Supreme Court has said that except in capital
cases, a failure of proof at an enhancement hearing is not
analogous to an acquittal, and that such a failure of proof
does not trigger double jeopardy protections. 18 Following U.S.
Supreme Court precedent, numerous state appellate courts have
held that double jeopardy protections do not apply to sentence
enhancement hearings and do not prevent the presentation of
evidence of a prior conviction at a new enhancement hearing
on remand. 19
14
See, Oceguera, supra note 1; Nelson, supra note 13.
15
Oceguera, supra note 1.
16
Id. (relying on Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L.
Ed. 2d 615 (1998)).
17
Gryger v. Burke, 334 U.S. 728, 68 S. Ct. 1256, 92 L. Ed. 1683 (1948).
18
Monge, supra note 16.
19
See, Scott v. State, 454 Md. 146, 164 A.3d 177 (2017); State v. Salas, 2017
NMCA 057, 400 P.3d 251 (2017); People v. Porter, 348 P.3d 922 (Colo.
2015); State v. Collins, 985 So. 2d 985 (Fla. 2008); State v. Eggleston,
164 Wash. 2d 61, 187 P.3d 233 (2008); Com. v. Wilson, 594 Pa. 106, 934
A.2d 1191 (2007); Jaramillo v. State, 823 N.E.2d 1187 (Ind. 2005); State
v. McLellan, 149 N.H. 237, 817 A.2d 309 (2003); Nelson, supra note 13;
Bell v. State, 994 S.W.2d 173 (Tex. Crim. App. 1999); People v. Levin, 157
Ill. 2d 138, 623 N.E.2d 317, 191 Ill. Dec. 72 (1993).
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Even though Valdez has not raised a double jeopardy argu-
ment, we are guided by the U.S. Supreme Court’s decision
in Monge v. California, 20 which addressed a factual and pro-
cedural context similar to that presented in this case. Monge
interpreted California’s “‘three-strikes’” law, which enhances
a defendant’s sentence based on a previous conviction for
a “serious felony.” 21 At the enhancement hearing, the State
alleged that the defendant had been convicted for assault with
a deadly weapon, but failed to support its allegation with
any substantive evidence. Nonetheless, the court enhanced the
defendant’s sentence. On appeal, the U.S. Supreme Court held
that insufficient evidence is not a bar to retrial of a defendant’s
enhanced status. 22
[4] The Supreme Court of Pennsylvania has similarly con-
cluded that the prosecution is permitted to present enhance-
ment evidence at a sentencing hearing on remand after the
original sentence is vacated due to insufficient evidence on
the issue of enhancement. 23 The court reasoned that once the
original sentence is vacated, the sentence is rendered a nullity
and the trial court may treat the case anew for evidentiary pur-
poses. 24 Where an appellate court determines that the evidence
was insufficient to establish a qualifying prior conviction, the
appellate court’s determination does not act as an acquittal or
preclude a trial court from receiving additional evidence of a
qualifying prior conviction. 25
[5,6] At oral argument before this court, Valdez contended
that by failing to adduce evidence of enhancement at the origi-
nal sentencing hearing, the State waived the issue of enhance-
ment. A waiver is the voluntary and intentional relinquishment
of a known right, privilege, or claim, and may be demonstrated
20
Monge, supra note 16.
21
Id., 524 U.S. at 724.
22
See, id.; Salas, supra note 19.
23
Wilson, supra note 19.
24
Id.
25
Scott, supra note 19.
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by or inferred from a person’s conduct. 26 A voluntary waiver,
knowingly and intelligently made, must affirmatively appear
from the record. 27 To establish a waiver of a legal right, there
must be a clear, unequivocal, and decisive act of a party show-
ing such a purpose, or acts amounting to an estoppel on his or
her part. 28 Further, the waiving party must have full knowledge
of all material facts. 29
We find no evidence in our record that the State intended to
forgo enhancing Valdez’ sentence. The State’s charging deci-
sion, as evidenced by the State’s complaint filed in January
2018, was to prosecute Valdez for motor vehicle homicide
under § 28-306(3)(c), a Class II felony. At the plea hearing, the
State alleged as part of its factual basis that Valdez had a prior
conviction that would subject him to enhancement. Valdez
then entered a plea of guilty to the enhanced charge, a Class II
felony, and the court accepted the plea subject to an enhance-
ment hearing, and then scheduled that enhancement be taken
up at sentencing per agreement of the parties.
The record indicates the court failed to recognize that
enhancement had not been addressed. At the enhancement and
sentencing hearing, the court opened by stating that “[t]his
matter comes on for sentencing today for the crime of motor
vehicle homicide, a Class II felony.” The court proceeded
directly to sentencing, possibly due to the fact that four wit-
nesses were present to provide testimony on the issue of
sentencing. In its closing comments articulating its reasons
for Valdez’ sentence, the court referenced Valdez’ two prior
convictions for DUI.
For Valdez’ waiver argument to apply, he must show that
at some point, the State intended to prosecute him for a Class
IIA felony. Here, the State has never wavered from its position
to prosecute Valdez for a Class II felony. Moreover, Valdez’
26
State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).
27
Id.
28
Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377 (2019).
29
Id.
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waiver argument arises in a context in which he has pled guilty
to a Class II felony, in exchange for the State’s agreeing to
recommend a maximum sentence of 25 years’ imprisonment,
with no pursuit of additional charges or restitution. Were we
to accept Valdez’ argument that he be resentenced on a Class
IIA felony, that would raise questions regarding the validity of
the plea agreement, yet Valdez has not expressed a desire to
alter the plea agreement. Therefore, we reject Valdez’ waiver
argument.
We vacate Valdez’ sentence and remand the cause with
directions for another enhancement and sentencing hearing.
Because of the disposition of this assignment of error, we need
not address the remainder of Valdez’ assignments of error.
CONCLUSION
The district court erred when it enhanced Valdez’ sentence
for motor vehicle homicide absent evidence of a prior convic-
tion. We vacate Valdez’ sentence and remand the cause with
direction for another enhancement and sentencing hearing.
Sentence vacated, and cause
remanded with direction.
Freudenberg, J., not participating.
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Learned, P. J.:
An examination of the evidence satisfies us that the learned justice was right in holding that there had been a failure to agree in reference to the proposed crossing. It cannot be necessary to refer to the evidence in detail.
*73Nor do we think the point well taken that the negotiations with Mr. Sloan and Mr. Niver were insufficient, and that an express vote of the board of directors was necessary to show that there could be no agreement.' The decision cited by counsel in Howlett v. New York, West Shore aud Buffalo Railroad Company (36 Sup. Ct. N. Y. [28 Hun], 55, not reported there), does not apply. The powers of a receiver are special, and he is the mere officer of the court. We need not examine very carefully what the books may have said about the powers of railroad presidents. The present question is simply practical. And no one can doubt that if Mr. Sloan, the president, refused to agree on a- crossing, that was the end of the matter, so far as his company was concerned.
Next, the objection to the map filed by the petitioner seems to have no weight, so far as we can judge by the statement. The map is not returned, and we do not know what it contained.
Again, it is claimed that the petition is insufficient:
1. That there is not a sufficient description of the crossing. But the -highway on which the petitioners desire to build their road is plainly specified, and the place where the railroad company’s track crosses it. There can be no difficulty in identifying the place.
2. That the notice given by the petitioner, under section 22 of the General Railroad Act, is insufficient. The alleged insufficiency is that the notice served is not by the company, but is signed, “ James M. Milne, Secretary of the Cortland and Homer Horse Railroad Company.” It is claimed that this is a notice by Milne personally. The notice is sufficient.
3. The remaining point is probably the most important. Section 18, article 3 of the Constitution, forbids the construction of a street railroad, except on condition that the consent of the owners of onelialf in value of the property bounded on it be obtained ; or that the Supreme Court determine that the railroad ought to be con: structed. The petitioners have obtained the consents of the proper number; but the consents are not under seal. The appellants insist that the consents required by the constitution must be such as convey to the railroad an interest in the street; something which cannot be revoked; and that unless under seal, the consent is a mere license. ( Wiseman v. Lucksinger, 84 N. Y., 31.)
Now, in the present case, the paper signed by the owners, in *74addition to a consent to the construction of the railroad, contains a release of the abutting owners of all right and interest necessary, and a waiver of claims which they might have had. But we do not understand this to be necessary under the constitution. The consent there provided for does not necessarily include a release of damages. It is a mere consent to the construction. This appears from the rest of the section which provides that, if the consent of -the owners cannot be obtained, the Supreme Court by commissioners may determine whether the railroad ought to be constructed, and the determination may be taken in lieu of the consent of the property owners. Now there is nothing which authorizes the court or the commissioners in this proceeding, to assess damages, or to acquire rights of the owners. They are merely to determine as to the necessity of the road — “ whether the road ought to be constructed.” And as this determination stands in lieu of the consent of the owners, it follows that the consent of the owners only determines whether the road ought to be constructed. The consent is to be obtained in order that useless and improper roads shall not' be put into operation. What rights the owners may have for compensation when the road is laid presents another question. We do not think it necessary to discuss that question after the., decision, so difficult to arrive at, in Story v. New York Elevated Railroad (90 N. Y., 122). All that we need to say is, that we do not understand that the consent required by the constitution, any more than the determination of commissioners therein provided requires necessarily a release of the owner’s rights to compensation, if their fee or their easement is injured by the railroad. We think that it is not necessary that the consent should convey to the railroad company an interest in the street. And we think the consents unsealed were sufficient.
The order is affirmed, with costs.
Present — LeaeNjsd, P. J'., BoardmaN and Bocees, JJ.
Order affirmed, with costs.
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Learned, P. J.:
The complaint avers that on the 8th day of June, 1882, George *76B. Wilson was the owner in fee of certain land ; that on that day he conveyed the same to the plaintiff, who went into possession, and is in possession and the owner; that the deed was recorded July 31, 1882; that on the 17th day of July, 1882, in an action in favor of the People’s Bank against said George B. Wilson, an attachment was issued to defendant Kelly, sheriff of the county; and on that day a notice of attachment was filed in the clerk’s office, stating a levy on said land; and about that time appraisers were appointed and an inventory made by the sheriff of said land, and filed in the •clerk’s office; that a notice of Us pendens thus became an apparent lien on the land, and cloud on plaintiff’s title; that she had requested of said bank and of said sheriff to cancel said levy and release the premises, and they have refused; that she had an opportunity to sell this land, and could have sold it, but for said apparent lien She asks that the proceedings, so far as they affect this land be canceled, and that she recover her damages. The defendant Kelly ■demurs.
The Code (§ 649, sub. 1), directs the mode of attaching real property ; which is by filing a notice, similar to the notice of Us pen-■dens. This is tobe recorded in like manner, and with like effect, as & notice of Us pendens. We are not prepared to say that by the words “ with like effect,” it is determined that the attaching plaintiff acquires a lien which is prior to that of an unrecorded deed. The matter decided in Van Court v. Armstrong (November, 1881, Third Department), was in a foreclosure action, not upon an attachment. And certainly the ordinary rule is that an attaching creditor gets nothing more than the debtor had at the time of the levy. Lamont v. Cheshire (65 N. Y., 30) seems conclusive on this point. The ■object of a notice of lis pendens is to prevent a transfer which shall interfere with the plaintiff’s claim ; that is, to enable the court to give, against any subsequent purchaser, the remedy to which the plaintiff would be entitled against the original owner. It is not a means of acquiring a new right. On the contrary an attachment is the acquiring of a lien or right, to which the plaintiff had no previous claim. Therefore it was said in the last case that an attachment may not have priority over an unrecorded deed. Indeed a reference to section 708, subdivision 2, will show that the sheriff, under execution, is to sell only the interest which the defendant *77had in the real property at the time when the notice was filed or thereafter.
But the plaintiff insists that there is a cloud on her title because in a litigation between herself and' a purchaser under the execution she would have to prove that her deed was executed before the attachment. But this question is carefully considered in Mulligan v. Baring (3 Daly, 75), and a decision adverse to the plaintiff is given.
The plaintiff, however, cites Lehman v. Roberts (86 N. Y., 232), and refers to certain remarks in the opinion as to the cases in which a cloud on title will be removed, stating that it is only when the pretended title or the proceeding which it is apprehended will create one is apparently void. The opinion, however, does not state that, in all of such cases, an action of this kind will be sustained. On the contrary, the next ¿paragraph in the opinion shows that an action like the present ought not to be sustained. We quote a part: “Nor would' the sale of land under execution against a third party be restrained at the suit of a party in possession having the paper title.” Therefore if in the present case the People’s Bank should proceed to judgment and execution against George B. Wilson, and should sell this land, the plaintiff would not be entitled to such an action as this. She should then defend in an action of ejectment, or take proceedings to compel a determination of the claim under section 1638, etc., of the Code Civil Procedure. Still more, it is not yet determined that the bank will ever have a judgment against George B. Wilson. The attachment is only issued to secure a judgment, should one be recovered. In that respect the attachment is different from the certificate under an assessment sale, which, as a matter of course, entitled the purchaser to a deed ; and in regard to which the question of cloud upon title has often been discussed.
We may say however that, if an attaching creditor should abuse the process of the court by neglecting to proceed with his suit, and should thus unjustly perpetuate, for a long time, the lien of an attachment, a person situated like the plaintiff might possibly have redress, on the ground that the process of the court was intentionally abused to the plaintiff’s injury. Nothing of that kind is here.
*78The judgment is reversed, with costs, and the demurrer sustained • with costs.
Present — Learned, P. J., Boaedman and Potter, JJ.
Judgment reversed, with costs, and judgment ordered for defendant on demurrer, -with costs.
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Leaened, P. J.:
We think that the strict requirements, established by numerous decisions, as to the contents of affidavits used on motions to change the place of trial are wise. Experience shows that, on these motions, parties often claim that more witnesses will be necessary than are actually called when the trial finally comes on. And as motions of this- kind do not affect the merits of the case, we think it well to hold parties to those forms which have been settled, in order that *79courts may reasonably determine how many witnesses will in fact be required.
Those forms are explained in an elaborate note to Brittan v. Peabody (4 Hill, 62). The party must state that he has fully and fairly stated, etc., the facts which he expects to prove by each and every of the witnesses; that eadh and every of the witnesses is material and necessary for, etc., as he is advised, etc., and that without the testimony of each and every of said witnesses, he cannot safely proceed to the trial of the cause as he is advised, etc.
The present affidavit is defective in not stating that each and every of the witnesses is material and necessary, and in omitting altogether the statement that without the testimony of each cmd every, etc., he cannot safely proceed, etc.
The importance of these strict rules will appear by examining this case. The affidavit mentions twenty-five facts which are to be proved. The third is that Edward Daily died intestate. That is alleged in the complaint and denied in the answer. Yet the affiant states that he needs three witnesses to prove what he has thus denied.
The first and second facts are alleged and not denied. Yet two witnesses are said to be needed to prove them. The fourth is that no letters of administration were issued. To this two witnesses are said to be needed. It is a mere matter of record. The fifth, sixth and seventh, are alleged in the complaint and not denied in the answer. Yet three witnesses are said to be necessary on these points. The same may be said of the ninth, tenth, eleventh and twelfth ; to which, or some of which, some six witnesses are said to be necessary We do not see that the thirteenth or fourteenth are disputed. Yet some witnesses are stated to be necessary on these points.
Now, without examining the affidavit further, we have stated enough to show the excellence of the forms which have been established. It -is doubtful whether the affiant would have stated that without the testimony of each and every of the twenty-five persons named the defendant could not safely proceed to trial
We are referred to a Special Term case (Austin v. Hinkley, 13 How., 576), which tends to relax the strictness of the old rule. The rule permitting the party to state the nature of the controversy is mentioned in 1 Burrill’s Practice, 43, but with no intimation that the *80old strictness should be abandoned. And it is better that the uniform rule should be adopted in a matter which, we above remarked, does not affect the merits of the ease. Certainly we think that in this case an adherence to the strict rule would probably have changed the affidavit materially. Possibly an affidavit might be so full and definite that the court could see that the party could not safely proceed to trial without the testimony of each of the witnesses. That is not this case.
It is very likely that the attention of the learned justice who decided the motion was not called to the imperfection of the affidavit. And it is urged by the respondent that therefore it should not be regarded here. We certainly are unwilling generally0to review the discretion exercised in a motion of this kind, thinking that the discretion of the Special Term is as good as that of the General Term. But it seems to us apparent that the moving party could not say that without the testimony of all these witnesses he could not safely proceed to trial. Unless that were the case, the place of trial should not be changed.
Order reversed, with ten dollars costs and printing disbursements, and motion denied, costs of motion to abide event.
Present — Learned, P. L, and Boardman, J.
Order reversed, with ten dollars costs and printing disbursements, and motion denied, costs of motion to abide event.
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Opinion by
Learned, P. J.
■ Present — Learned, P. J., and Bocees, J.; Boardman, J., not acting.
Judgment reversed, new trial granted, costs to abide event.
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Eggleston, C. J.,
delivered the opinion of the court.1
Tony McCoy filed in this court a petition pro se against Charles M. Lankford, Jr., Judge of the Circuit Court of Accomack County, and J. Fulton Ayres, clerk of that court, praying that they be required to furnish him, without cost, certified copies of the arrest warrants, the indictment, the order of conviction and the transcript of the proceedings in the trial held in that court on September 14, 1968, whereby he was convicted upon a charge of murder. The petitioner alleged that he was a pauper and prayed leave to proceed in forma pauperis.
*265In response to an order to show cause, the respondents filed a motion to dismiss the petition on the ground that it was insufficient at law and that the petitioner was not entitled to the relief prayed for.
In a rebuttal filed by the petitioner pro se he alleged that the records and transcript were “essential to prepare an effective petition” for a writ of habeas corpus and that a denial of his request for them “would be a denial of due process of law.” In an affidavit subsequently filed the petitioner states that “he has been unable to obtain the documents from the clerk of the circuit court of Accomack County or the records section of the Virginia State Penitentiary,” and that he “needs the documents in good faith to prepare his habeas corpus petition.”
We appointed counsel to prosecute on behalf of the petitioner his petition for a writ of mandamus.
No evidence has been taken on behalf of the respective parties, but the briefs agree that the petitioner is presently confined in the Virginia State Penitentiary pursuant to a judgment of the Circuit Court of Accomack County entered on September 14, 1968, whereby he was sentenced to serve a term of twenty years on an indictment for murder. The issue presented to us is whether, upon this record, the petitioner is entitled to be furnished, without cost, the designated records and transcripts, or any of them.
It has been settled by the decisions of the Supreme Court of the United States that the principle that destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts is not limited to direct appeals from criminal convictions, but extends alike to post-conviction proceedings. Smith v. Bennett, 365 U. S. 708, 714, 81 S. Ct. 895, 898, 6 L. ed. 2d 39, 43-44 (1961); Lane v. Brown, 372 U. S. 477, 483, 484, 83 S. Ct. 768, 773, 9 L. ed. 2d 892, 897 (1963); Long v. District Court of Iowa, etc., 385 U. S. 192, 194, 87 S. Ct. 362, 364, 17 L. ed. 2d 290, 292-293 (1966).
Thus, in the present case, if the desired records and transcript are necessary to the preparation and prosecution of the petition for a writ of habeas corpus, the petitioner is entitled to be furnished them without cost. Code § 14.1-183 [Repl. Vol. 1964].
In the brief filed on behalf of the petitioner it is pointed out that under the terms of Code § 8-596.1, Cum. Supp. 1968 (Acts of Assembly 1968, ch. 359, p. 463), prescribing the form and contents of a petition for a writ of habeas corpus, a prisoner must give detailed answers to certain specified questions with respect to his criminal trial. Among these are:
*266“1. 'Name and location of court which imposed the sentence from which you seek relief:......
“2. The offense or offenses for which sentence was imposed (include indictment number or numbers if known):......
“3. The date upon which sentence was imposed and the terms of the sentence:......
“4. Check which plea you made and whether trial was by jury:
“Plea of guilty: . . . ; Plea of not guilty: . . . ;
“Trial by jury: . . . ; Trial by judge without jury: . . . .”
The instructions incorporated in the statute for such a petition point out that petitioners should “exercise care to assure that all answers are true and correct.”
It is obvious that in order to comply with these instructions and answer the specified questions the petitioner will need copies of the indictment and order of conviction. Copies of the arrest warrants and the returns thereon will show the dates of his alleged illegal arrest of which he complains.
On May 25, 1964 the Attorney General of Virginia ruled, in an opinion letter to the judge of the Circuit Court of the City of Richmond, that a trial court should furnish to an indigent prisoner, at the expense of the Commonwealth, certified copies of the warrant, indictment and court orders pertaining to his conviction, upon the filing of an affidavit that he needs these records in order that he might prosecute a petition for a writ of habeas corpus.
On October 10, 1968 the Attorney General, in a letter opinion to the clerk of the Circuit Court of Accomack County, overruled his former opinion and held that in view of the enactment in 1968 of Code § 8-596.1, supra, the clerk of a trial court is not now required to furnish a copy of the record or transcript of an indigent prisoner’s trial in order that he may prepare a petition for a writ of habeas corpus. The opinion points out that § 8-596.1, which prescribes the form of a petition for a writ of habeas corpus, does not require that such court records or transcript be appended to the same. Moreover, it pointed out that since a prisoner’s petition for a writ of habeas corpus must be filed in the court where the judgment of conviction was entered,2 “[a] 11 of the records pertaining to his conviction, of *267course, will be available to that court,” and hence there is no necessity that they be furnished to the indigent prisoner.
It is true that the statutory form does not require that such court records be appended to the petition. But we do not agree that the fact that the records of the petitioner’s criminal trial, winch was held in the Circuit Court of Accomack County, will be available to the same court where the habeas corpus proceeding is to be tried dispenses with the necessity of furnishing the desired records to him. Obviously, the petitioner, who is confined in the State Penitentiary at Richmond, has no access to the records of his criminal trial in the Clerk’s Office of the Circuit Court of Accomack County.
The brief of the Attorney General suggests that the petitioner may obtain the desired information with respect to his criminal trial “by malting inquiry of the Record Office at the Virginia State Penitentiary. Most of this information is available there.” (Emphasis added.) But the petitioner states in his affidavit that he has been unable to obtain the desired information there.
We hold that under the stated circumstances the petitioner should be furnished, without cost, certified copies of the arrest warrants, indictment and the order of conviction at his criminal trial.
The petitioner also prays that he be furnished a transcript of his criminal trial. He admits that he is not entitled to this for examination in order to determine whether he will engage in litigation (United States v. Glass, 317 F. 2d 200 (4th Cir. 1963)), but says he has determined in good faith that he has grounds for relief by way of habeas corpus and that the transcript of his criminal trial will show that such grounds are well founded. This allegation relates to evidence which may be developed at the trial of the habeas corpus petition where the transcript will be available. It does not aver, nor do the petitioner’s pleadings or brief show, that the transcript is necessary to the preparation of the petition for a writ.
The prayer for a copy of the transcript of the criminal trial is denied.
Writ awarded in part; denied in part.
This opinion was prepared by former Chief Justice Eggleston before his retirement and is adopted as the opinion of the court.
Code § 8-596 (b) (1), as amended by Acts of Assembly 1968, ch. 487, p. 700.
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Judgment unanimously reversed on the law with costs, and petition granted, in accordance with the following memorandum: Petitioner commenced this CPLR article 78 proceeding to annul respondent’s determination to appropriate approximately five acres of petitioner’s property for a park and ride lot without complying with the provisions of EDPL article 2. Petitioner contends that the purported appropriation is a nullity because it was made without a public hearing as required by EDPL 201 and 202. Respondent maintains that, pursuant to EDPL 206 (A), he is exempt from public hearing requirements with respect to petitioner’s property inasmuch as he held public hearings on the so-called "Can of Worms” project and those hearings encompassed petitioner’s property.
Our review of the record indicates that the public hearings concerning the "Can of Worms” project did not consider or discuss this specific property for use as a park and ride *966facility. Since there was no public hearing with respect to petitioner’s property, the determination and findings mandated by EDPL 204 were not made and respondent has improperly acquired petitioner’s property. The acquisition map which respondent filed with respect to petitioner’s property is therefore null and void and respondent must discontinue the use of petitioner’s property unless respondent properly acquires the property after compliance with the provisions of EDPL article 2.
The respondent has expended substantial public funds in the development of the within park and ride facility. Moreover, a significant number of people use the lot on a daily basis and great inconvenience would be caused them if the use of this facility were to be summarily terminated. Enforcement of the judgment to be entered on our decision should be stayed for a period of 90 days from the date of entry of our order to afford respondent an opportunity to acquire the property after compliance with the provisions of EDPL article 2 (see, H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 234, 235; CPLR 7805). (Appeal from judgment of Supreme Court, Monroe County, Wagner, J.—art 78.) Present—Den-man, J. P., Boomer, Pine, Lawton and Davis, JJ.
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 8, 2011, which, among other things, charged claimant with a recoverable overpayment of emergency unemployment compensation benefits.
Substantial evidence supports the determination of the Unemployment Insurance Appeal Board that claimant was obliged to repay federally funded emergency unemployment compensation (see Pub L 111-5, div B, tit II, § 2001 [a], 123 US Stat 115; Pub L 110-252, tit IV, § 4001 et seq., 122 US Stat 2323; Matter of Shamilov [Commissioner of Labor], 68 AD3d 1293, 1294 [2009]) and federal additional compensation (see Pub L 111-5, div B, tit II, § 2002 [b], 123 US Stat 115) benefits to which she was not entitled. Inasmuch as claimant did not appeal from the Board’s decision that she was not entitled to those benefits, she was required to repay them unless the overpayment was without fault on her part and “ ‘equity and good conscience’ militate [d] in favor of a waiver of repayment” (Matter of Silver [Commissioner of Labor], 84 AD3d 1634, 1635 [2011], quoting Pub L 110-252, tit IV § 4005 [b], 122 US Stat 2323). She admittedly failed to apply for such a waiver on the forms provided, despite being advised in writing that she would have to repay the benefits if she did not. Therefore, we perceive no basis upon which to disturb the Board’s decision.
Claimant’s remaining contentions, to the extent they are properly before us, have been considered and found to be unavailing.
Peters, P.J., Stein, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.
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Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from judgment of Onondaga County Court, Cunningham, J.—burglary, second degree.) Present—Callahan, J. P., Denman, Green, Pine and Davis, JJ.
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Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from judgment of Ontario County Court, Reed, J.—grand larceny, third degree.) Present—Dillon, P. J., Doerr, Boomer, Balio and Lawton, JJ.
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I’Anson, J.,
delivered the opinion of the court.
Mack Wayne Belcher, defendant, was found guilty by a jury on a warrant charging him with operating an automobile while under the influence of alcohol in violation of an ordinance of the Town of Christiansburg, and his punishment was fixed at a fine of $200. Judgment was entered on the verdict, and he is here on a writ of error.
Defendant contends that the court erred in refusing to grant three instructions relating to impaired driving to which he claims he was entitled under the provisions of § 18.1-56.1, Code of 1950, 1966 Cum. Supp., Acts of 1966, ch. 636, p. 981.
The facts, briefly stated, show that at about 10:30 p.m. on February 16, 1968, a Christiansburg police officer observed defendant’s car on Route 11 weaving from the shoulder of the road to the center lane. The officer followed the car for a considerable distance, and when he pulled the defendant over to the side of the road he detected a *277strong odor of alcohol about him. Defendant staggered against his car when he attempted to alight; his speech was slurred and his walk, “staggery.” When taken to the sheriff’s headquarters he staggered up the steps and held onto the door. Inside, he “staggered and bounced against the walls.”
A nearly empty whiskey bottle, purchased on the day of defendant’s arrest, was found in the car under the right front seat occupied by a companion. The companion did not appear to be drinking, and the officer permitted him to drive defendant’s car to the sheriff’s headquarters.
Defendant admitted having drunk two beers some two hours before his arrest, but he denied that he had drunk from the whiskey bottle which he said belonged to the companion riding with him. He refused to take a blood test.
The refused instructions told the jury (1) the punishment for driving under the influence of intoxicants and for that of impaired driving, (2) that if they had a reasonable doubt as to the grade of the offense they should find the defendant guilty of the lower grade, and (3) what constitutes impaired driving. No question was raised as to the wording of the instructions.1 They were refused by the trial court solely on the ground that since there was no evidence of a blood test showing the alcoholic content of defendant’s blood to be as much as 0.10 but less than 0.15 percent by weight the offense of impaired driving could not be considered by the jury. Hence the question presented is whether under Code § 18.1-56.1, which makes impaired driving a lesser included offense of drunk driving, the defendant was entitled to have the jury instructed on the lesser offense although there was no evidence of a blood test.
Counsel conceded that the two town ordinances involved parallel Code §§ 18.1-54 (prohibiting drunk driving) and 18.1-56.1.
The pertinent parts of Code § 18.1-56.1 are as follows:
“It shall be unlawful for any person to drive or operate any automobile * * * while such person’s ability to drive or operate such vehicle is impaired by the presence of alcohol in his blood. A person’s ability to drive or operate such a vehicle shall be deemed to be impaired by the presence of alcohol in his blood within the meaning of this section when such person has so indulged in alco*278holic intoxicants as to lack the clearness of intellect and control of himself which he would otherwise possess.
“In every prosecution under § 18.1-54 [prohibiting drunk driving] of this Code or any similar ordinance of any county, city or town the offense with which the accused is charged shall be deemed to include the offense punishable under this section; and whenever in any such prosecution it appears that the amount of alcohol in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of the accused’s blood in accordance with the provisions of § 18.1-55.1 is as much as 0.10 but less than 0.15 percent by weight it shall be presumed that the ability of the accused was impaired within the meaning of this section. * * (Emphasis added.)
The first paragraph of the statute creates and defines the offense of impaired driving. Under the language of the first clause of the second paragraph it is perfectly manifest that in every prosecution for driving whüe intoxicated an accused may be convicted of the lesser included offense of impaired driving. See, Bass v. Commonwealth, 209 Va. 422, 424, 164 S. E. 2d 667, 669, 670 (1968). See also, Ritz, Criminal Law, Annual Survey of Virginia Law, 53 Va. L. Rev. 449, 465, 466 (1967).
While the second clause of the second paragraph provides that a presumption of impaired driving arises when the alcoholic content of a person’s blood is within a specified range, the language of the statute does not make evidence of blood-alcohol content within the specified range mandatory before the lesser offense can be considered. Hence in every prosecution for driving under the influence of intoxicants an accused is entitled to have the triers of fact consider the offense of impaired driving even though there is no evidence of the alcoholic content of his blood.
We hold that under the provisions of Code § 18.1-56.1 the trial court erred in not granting the instructions requested by the defendant.
The judgment of conviction is set aside and the case is
Reversed and remanded.
. Attention is called to the fact, however, that the definition of “impaired driving” did not contain all the language as found in the statute.
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Order unanimously reversed on the law without costs and motion granted. Memorandum: County Court improvidently exercised its discretion in directing disclosure, pursuant to CPL 390.50 (2), of presentence reports prepared by the Department of Probation in juvenile delinquency and PINS proceedings (Family Ct Act § 351.1 [6]; § 750) and in a prior criminal proceeding in which petitioner was adjudicated a youthful offender (CPL 720.35 [2]). The affidavit in support of the ex parte application seeking disclosure made no factual showing sufficient to warrant overriding the cloak of confidentiality accorded presentence reports prepared for use in Family Court and youthful offender matters. Moreover, CPL 390.50 (1) does not authorize disclosure of a presentence report in a collateral proceeding discrete from the proceeding for which the report was initially prepared, even when requested by the attorney for the subject of the report.
Inasmuch as we have decided the propriety of the order appealed from on the merits, we do not reach the issue whether the application seeking disclosure pursuant to CPL 390.50 (1) must be on notice. (Appeal from order of Monroe County Court, Marks, J.—vacate prior order.) Present—Den-man, J. P., Boomer, Pine, Lawton and Davis, JJ.
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—Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from judgment of Onondaga County Court, Cunningham, J.—sexual abuse, first degree.) Present—Callahan, J. P., Denman, Green, Pine and Davis, JJ.
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—Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from judgment of Genesee County Court, Morton, J.—attempted robbery, second *969degree.) Present—Doerr, J. P., Boomer, Green, Balio and Davis, JJ.
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—Order unanimously modified on the law and as modified affirmed with costs to plaintiff, in accordance with the following memorandum:
Special Term should not have granted summary judgment on plaintiff’s third cause of action for counsel fees because the moving papers set forth no facts supporting the value of the legal services incurred. (Appeal from order of Supreme Court, Erie County, Mintz, J.—summary judgment.) Present—Callahan, J. P., Denman, Boomer, Pine and Davis, JJ.
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—Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from judgment of Chautauqua County Court, Adams, J.—criminal possession of stolen property, second degree.) Present—Callahan, J. P., Den-man, Boomer, Pine and Davis, JJ.
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—Appeal unanimously dismissed as moot. (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. —art 78.) Present—Dillon, P. J., Doerr, Green, Balio and Lawton, JJ.
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—Order and judgment unanimously affirmed with costs for reasons stated at Supreme Court, O’Donnell, J. (Appeal from order and judgment of Supreme Court, Oneida County, O’Donnell, J.—arbitration.) Present—Doerr, J. P., Boomer, Green, Balio and Davis, JJ.
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OPINION
REGINALD W. GIBSON, Judge:
Introduction
A. Preliminary Matters
Plaintiff, Jon Hedman, a former County Executive Director for the Agricultural Stabilization and Conservation Service (ASCS) County Committee, Clay County, Minnesota (hereinafter County Committee), filed the instant complaint against the defendant herein, alleging breach of an implied-in-fact employment contract and *306wrongful termination. Therein, plaintiff is claiming entitlement to damages in the amount of $128,000, representing: (1) lost past, current and future earnings; (2) severance pay; and (3) consequential and special damages. Plaintiff also seeks reinstatement retroactive to August 20, 1984 or, alternatively, that the ban on future employment be lifted.
Plaintiff premises jurisdiction on the Tucker Act, 28 U.S.C. § 1491(a)(1),1 apparently upon the purported violation of federal regulations of an executive department, and the alleged breach of an implied-in-fact employment contract.
Subject matter is now before this court on defendant’s RUSCC 12(b)(4) motion to dismiss for failure to state a claim upon which relief can be granted. Said motion avers that the plaintiff’s pleadings neglect to cite to a statute or regulation in support of a claim for money damages against the United States. Defendant contends, in this connection, that absent a showing of a statutory or regulatory authority mandating the payment of money damages, the plaintiff may not invoke this court’s Tucker Act jurisdiction. We grant defendant’s motion to dismiss as to back pay and reinstatement, and deny said motion regarding plaintiff’s severance pay claim.
B. Characterization of Defendant’s Motion to Dismiss
As a preliminary matter, it is noted that although defendant seeks dismissal of the complaint for failure to state a claim upon which relief can be granted under RUSCC 12(b)(4), the motion in part properly lies under RUSCC 12(b)(1), because defendant argues that the complaint fails to invoke a basis for the exercise of subject matter jurisdiction. The distinction between RUSCC 12(b)(1) and 12(b)(4), we believe, is significant, for a dismissal under 12(b)(1) for want of jurisdiction is not an adjudication on the merits, whereas dismissal under 12(b)(4) for failure to state a claim would bar a future suit by this plaintiff. See Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.), cert. denied, — U.S. -, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987). See Indium Corp. of America v. Semi-Alloys Inc., 781 F.2d 879, 883 (Fed.Cir.1985), cert. denied, 479 U.S. 820, 107 S.Ct. 84, 93 L.Ed.2d 37 (1986).
In either case, in addressing a jurisdictional question, we note that the court must accept as true all undisputed facts alleged by the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746, 747 (Fed.Cir.1988). However, in ruling on defendant’s motion to dismiss for want of jurisdiction, the court may make such factual findings, with regard to disputed facts, that are decisive of the jurisdictional issue.2 Accordingly, in treating defendant’s motion in part as one to dismiss for lack of subject matter jurisdiction, the court finds'the following facts, infra.
Statement of Facts
Plaintiff was continuously employed by ASCS County offices from 1962 through 1984. From 1966 through 1975, he served as County Executive Director in St. Louis County, Minnesota. Thereafter, on or about October 26, 1975, he began employment as the Clay County, Minnesota, Executive Director. Plaintiff continued in that capacity until September 5, 1984, the date on which he was terminated “for cause” by the County Committee.
The foregoing circumstance allegedly occurred against the background that the Clay County ASCS office was understaffed *307and the operations therein backlogged. After requests by plaintiff for authorization to hire an additional program assistant, the County Committee, on September 15, 1983, in agreement, submitted plaintiffs request to the District Director of the State ASCS office for approval. The State ASCS office, however, denied the request.3
What transpired next is unclear from the record, for, in April 1984, plaintiff received a complaint from his supervisors regarding “deficiencies” in his management of the Clay County office. Consequently, a meeting was held on or about April 11, 1984, wherein the plaintiff, the County Committee, the State Executive Director, the State Administrative Chief, and the District Director discussed plaintiffs alleged performance deficiencies. According to plaintiff, during said meeting he was instructed to cease contact with the print and electronic media, and was further ordered to submit a detailed monthly plan of operations. After the April 11, 1984 meeting, defendant confirmed in writing that the Clay County office’s operations would thereafter be reviewed in October 1984.
In the interim, and in spite of the aforementioned representation to plaintiff that operations would be reviewed in October, around early August 1984, the County Committee contacted the State ASCS office for assistance and guidance in connection with the institution of termination proceedings against plaintiff. Shortly thereafter, plaintiff was served with a Notice of Suspension from the County Committee on August 20, 1984, wherein it was alleged that plaintiff had “failed to perform the duties of [his] office or employment” and also that plaintiff had “imped[ed] the effectiveness of [the ASCS] program_” Plaintiff immediately responded to said charges, stating that the administrative problems within his office were a direct consequence of inadequate personnel to cover the daily operations. Notwithstanding plaintiff’s explanation for the cause of the deficiencies, the County Committee refused to reinstate him; and on September 5,1984, effectuated termination.4
Plaintiff contends, and defendant admits, that when hired as Clay County Executive Director, the terms and conditions of his employment were embodied in the ASCS’s personnel manual, Publication 22-PM.5 Specifically, the terms and conditions for separation procedures were contained in Part 10,6 HU 411-459. Therefore, pursuant to Publication 22-PM, UU 411-459 and as required by 7 C.F.R. § 7.31 (1984),7 on September 18, 1984, plaintiff appealed the County Committee’s decision to terminate to the State ASCS Committee.
*308There, the plaintiff challenged the County Committee’s alleged disregard of the relevant procedures for termination contained in Publication 22-PM, and charged that the County Committee was unaware of such operative provisions when it terminated plaintiff “for cause.” Plaintiff maintained that the County Committee neglected to even minimally consider relevant mitigating factors (contained in Publication 22-PM, 11413) when removing him “for cause”. Moreover, plaintiff claimed that other procedures (including ¶¶1431A(2), 433A and B, and 466A and B, et al.) were not followed by the County Committee prior to terminating him “for cause”. Nonetheless, the State ASCS Committee denied plaintiff’s request for reinstatement and backpay on October 15, 1984.
Following thereon, plaintiff appealed to the Deputy Administrator, State and County Operations, ASCS, United States Department of Agriculture, in Washington, D.C., on November 7, 1984, pursuant to Publication 22-PM, H11450 and 451, and as permitted under 7 C.F.R. § 7.31 (1984). An administrative hearing was held on January 18-19, 1985, in Morehead, Clay County, Minnesota, wherein plaintiff requested reinstatement, salary, insurance, and other benefits retroactive to the date of suspension. Plaintiff’s appeal was denied by the Acting Deputy Administrator (Roy T. Co-zart) by an order dated March 18, 1985.
After exhausting the foregoing administrative remedies,8 on April 22, 1985, a “Petition for Review of (an) Agency Decision Pursuant to 5 U.S.C. § 701, et seq.” was filed in the United States District Court for the District of Minnesota, 3rd Division, case no. 6-85-760. Plaintiff there alleged that he was denied, inter alia, due process and equal protection under the 5th and 14th Amendments. This petition was dismissed by an order of the court for lack of subject matter jurisdiction on February 28, 1986.
Plaintiff next filed the instant complaint with this court, thereafter, on June 6,1986, alleging that the ASCS County Committee for Clay County, “a division of the United States Department of Agriculture,”9 had breached an implied-in-fact employment contract between the parties ostensibly entered into on October 26, 1975, the date plaintiff was hired as Clay County Executive Director. Additionally, plaintiff claimed that he was wrongfully terminated “for cause” in breach of the procedural safeguards contained in the ASCS’s personnel manual, Publication 22-PM. Plaintiff’s contract theory of recovery rests, therefore, upon the assumption that said manual created an implied-in-fact contract which governed the terms and conditions of his employment with the ASCS County Committee.
Contentions of the Parties on Motion to Dismiss
A. Defendant
Defendant raises a plethora of arguments in support of its motion to dismiss. In general, defendant maintains that Tucker Act jurisdiction is lacking in this case. This is so, defendant asserts, because said Act ipso facto does not create any substantive rights enforceable against the United States; and the plaintiff is necessarily compelled, and fails, to demonstrate that the basis for his substantive rights arose under some other independent source of law, e.g., the Constitution, an Act of Congress, or any regulation of an executive department. Moreover, defendant’s arguments encompass two distinct, mutually exclusive assertions: i.e., plaintiff is not a federal employee because he does not meet the definition of § 2105, Title 5 U.S.C.; and, even assuming plaintiff’s contention that he is a federal employee, no implied-in-fact contract arises because such an employment relationship is statutory rather than contractual in that the subject serves by appoint*309ment.10
B. Plaintiff
Unfortunately, the plaintiff offers a melange of somewhat circular legal reasoning in support of its jurisdictional assertions. Without obfuscating this opinion, plaintiffs arguments can be best summarized as follows:
(i) Publication 22-PM created an implied-in-fact contract between him and the defendant;
(ii) The requisite contractual employment relationship is manifest by the “express or implied contract” (i.e., Publication 22-PM) for jurisdictional purposes under the Tucker Act;
(iii) Publication 22-PM’s back pay provision is tantamount to a “regulation” which “provides for money damages against the United States and forms the basis for a claim cognizable under the Tucker Act”;
(iv) Defendant’s failure to comply with Publication 22-PM’s procedures constituted a violation of “a regulation of an executive department” that expressly provides for money damages, thus fixing Tucker Act jurisdiction;
(v) Defendant’s argument that plaintiff is not a federal employee, as described under 5 U.S.C. § 2105 (for purposes of applying the Back Pay Act, 5 U.S.C. § 5596), supports plaintiff’s assertion that employment by the County Committee created an implied-in-fact employment contract;11 and
(vi) The United States has presumptively consented to suit based upon the Department of Agriculture’s express provision for money damages contained in Publication 22-PM, ¶ 455.
Against this background, this court will now undertake to disentangle the elusive factual and legal issues postured herein.
Issues
The dispositive factual question raised in this case centers around plaintiff’s employment status within the ASCS. This is true, because a finding that Hedman is a federal employee would defeat the contract claims asserted in this court under the Back Pay Act, 5 U.S.C. § 5596. On the other hand, such a finding would support his claim under the Severance Pay Act, 5 U.S.C. § 5595. Therefore, the pivotal issue this court must address is whether, in fact, plaintiff is a federal employee. Because we answer this question affirmatively, this court must conclude that it does not have subject matter jurisdiction with regard to the plaintiff’s back pay claim.
Discussion
A. Historical Development and Organizational Background of the Department of Agriculture, the Agricultural Stabilization and Conservation Service, and the ASCS State and County Committees
Several salient factors surrounding this court’s jurisdiction necessarily mandate a sharp understanding of the relationship between the Department of Agriculture (DOA), the Agricultural Stabilization and Conservation Service, and the ASCS State and County Committees. Therefore, the following information is submitted.
In 1889, the Department of Agriculture gained cabinet status by the Act of February 9, 1889, ch. 122, §§ 1, 4, 25 Stat. 659 (1889) (codified as amended at 7 U.S.C. § 2201 et seq.). Pursuant to this Act, the DOA was made the eighth executive department within the federal government under the supervision and control of the Secretary of Agriculture (hereinafter Secretary). 9 HarhAgricultural Law § 63.02, pp. 63-7 through 63-8.
The Secretary established the Agricultural Stabilization and Conservation Service (ASCS) pursuant to the authority vest*310ed in it under, inter alia, 5 U.S.C. § 301,12 Reorganization Plan No. 2 of 1953, 5 U.S.C. App. pp. 291-292,13 and the Soil Conservation and Domestic Allotment Act (the Act), 16 U.S.C. § 590h(b).14 The ASCS was es*311tablished on June 5, 1961,15 as the agency of the Department that administers, inter alia, commodity and related land use programs designed for voluntary production adjustment, resource protection, and farm income stabilization.16 See also, Gibson v. United States, 11 Cl.Ct. 6, 8 (1986); and 9 Harl.Agricultural Law § 63.07[1], pp. 63-112 through 63-116. In conjunction with the establishment of the ASCS, the Secretary designated State and County offices of the ASCS which were to serve as “local administrative areas [and] as units for administration of programs” under the Act. 16 U.S.C. § 590h(b).
In order to meet the goals of the Soil Conservation and Domestic Allotment Act, and carry out the programs thereunder, the Secretary is also authorized to staff the ASCS State and County offices.17 Such officers and employees therein are appointed, “subject to the provisions of the civil-service laws and the Classification Act of 1923, as amended.” 16 U.S.C. § 590d,18 49 Stat. 164, ch. 85, § 4(2).19 State Committees (appointed by the Secretary, 16 U.S.C. § 590h(b)) and County Committees (elected by local farmers, 16 U.S.C. § 590h(b)) are also used to administer programs under the Act.20 A County Executive Director is selected by the County Committee, subject to standards and qualifications set by the State Committee. 7 C.F.R. § 7.21(b); Publication 22-PM, Part 5, till 87 and 88. The County Executive Director is authorized to *312hire other necessary staff to carry on day-to-day operations of the county office. 16 U.S.C. § 590h(b); 7 C.F.R. §§ 7.4 to 7.15 and 7.26(a); Publication 22-PM, Part 5, H 90; 9 Harl.Agricultural Law § 63.07[1], pp. 63-115 through 63-116.
Based upon the foregoing historical and organizational overview, it is readily apparent that: (i) the Agricultural Stabilization and Conservation Service is a duly authorized federal agency, under the direct supervision of the Under Secretary of Agriculture, International Affairs and Commodity Programs; (ii) the Agricultural Stabilization and Conservation Service State and County offices are localized units of administration for the federal programs administered by the ASCS and are part and parcel of the ASCS; (iii) all employees of the ASCS are subject to civil service laws unless excepted therefrom; (iv) the State Committee (which is comprised of individuals appointed directly by the Secretary) is responsible for ASCS State office supervision, and generally supervises ASCS County office operations, as well as County Committee activities; (v) the County Committees provide local input into the administration of the federal programs which affect their communities; and (vi) the County Committees “supervise” the County offices vicariously, i.e., through their input in selecting a County Executive Director, and interaction with this individual thereafter. Against this background, we now examine the personnel status of plaintiff in the capacity as a County Executive Director within the ASCS County offices. The court’s analysis concludes that plaintiff was, during the years in issue, in the competitive service, and his position description also met the definitions of a § 2105 employee.
B. Civil Service Classification
As stated, supra, the Secretary is authorized to appoint individuals to work in the ASCS County offices, subject to civil service laws. Although such authority is delegated to other officers and employees, it must be remembered that any hiring authority exercised under such programs is subject to this legislative precept. Therefore, it is concluded that employees within the County ASCS offices fall under civil service rules and regulations codified at 5 U.S.C. § 3301, and Title 5 of the Code of Federal Regulations, unless specifically excepted therefrom. The civil service rules, located at 5 C.F.R., subchapter A, apply to all positions in the competitive service and incumbents therein, but not to positions in the excepted service. 5 C.F.R. § 1.1 (1984). The competitive service includes all civilian positions in the executive branch of the government, unless specifically excepted from the civil service by or under statute. See 5 U.S.C. § 2102(a)(1)(A);21 5 C.F.R. § 6.1 (1984); 5 C.F.R. § 1.2 (1984).
In order to provide notice to incumbents therein, the Office of Personnel Management (OPM) publishes a cumulative list annually in the Federal Register (Schedules .A, B, & C) of those positions classified as civil service excepted positions. 5 C.F.R. § 6.2 (1984).22 Inasmuch as the ASCS County offices are agencies within the ex*313ecutive branch of government and their employees are appointed subject to civil service laws, excepted positions must be included in one of the schedules published by the OPM. A thorough review of the consolidated notice of all positions excepted under Schedules A, B, and C as of June 30, 1984, discloses that the position of the County Executive Director of the ASCS is absent therefrom. Therefore, based upon the facts that — (i) the plaintiff held a civil service position in the executive branch of government; and (ii) Congress decreed that employees such as plaintiff be placed under civil service laws (16 U.S.C. § 590d), this court finds that plaintiff was a civil service employee appointed into the competitive service.
C. Was Plaintiff An Employee Under 5 U.S.C. § 2105?23
To be considered a federal employee for purposes of § 2105, the person must (i) be appointed by an authorized federal employee or officer; (ii) perform a federal function; and (iii) be subject to supervision by a federal employee or officer as defined under § 2105. See Watts v. Office of Personnel Management, 814 F.2d 1576, 1579 (Fed.Cir.1987); Costner v. United States, 229 Ct.Cl. 87, 93, 665 F.2d 1016, 1019-20 (1981); Lambert v. United States, 4 Cl.Ct. 303, 305 (1984). Each of the foregoing requirements must be satisfied. Watts, 814 F.2d at 1579; Lambert, 4 Cl.Ct. at 305. Thus, this court will examine, in seriatim, each of the aforementioned elements in light of the information presented, supra, and case law relevant to the issue.
1. Appointment
The essential prerequisites of “appointment” to civil service as an employee are— (1) an authorized appointing officer who takes action and reveals his awareness that he is making an appointment in the civil service; and (2) action by the appointee denoting acceptance. Watts, 814 F.2d at 1579.
As noted, supra, the Secretary is authorized under 16 U.S.C. § 590d to appoint such officers and employees as he may deem necessary to carry out the various programs under the Soil Conservation and Domestic Allotment Act. Also noted, supra, is the fact that the Secretary has promulgated regulations which effectively, “establish ‘a hierarchy of command’ with general supervision being delegated to a Deputy Administrator (of the ASCS) who acts for the Secretary in the daily administration of the various agricultural programs.” See Duba v. Schuetzle, 303 F.2d 570, 571 (8th Cir.1962); Gibson, 11 Cl.Ct. at 8; Wollman v. Gross, 484 F.Supp. 598, 601 (D.S.D.), aff'd, 637 F.2d 544 (8th Cir.1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981); United States v. Rasmussen, 222 F.Supp. 430, 441 (D.Mont. 1963); and 7 C.F.R. § 7.20.
In other words, the Secretary has delegated his authority to “appoint” the various employees utilized in the daily administration of agricultural programs, such as those administered by the County offices of the ASCS. This authority to appoint employees of the ASCS county offices has been delegated from the Secretary to the State Committee, an “authorized appoint*314ing authority” for purposes of § 2105, as established, m/m.24
Additionally, Publication 22-PM25 (which as noted, supra, is promulgated and issued by the ASCS, Washington, D.C., pursuant to the authority delegated from the Secretary under 7 C.F.R. § 7.38) provides at Part 5, 1187, that the basic requirement for filling a vacancy, including County Executive Director, is that it may not be filled until approved by the State Executive Director.26 Publication 22-PM, 1187(A)(3). The State Executive Director’s authorization is limited to those policies established by the State Committee. Publication 22-PM, ¶ 87(B). This comports with the dictates at 7 C.F.R. § 7.21(b) (1984) which states that the County Committee may employ a County Executive Director subject to State Committee approval. Thus, the ultimate hiring authority for the ASCS County Executive Director in reality rests with the State Committee, not the County Committee. Therefore, we find that plaintiff was duly “appointed” for purposes of § 2105.
Moreover, the second element of the appointment test, i.e., acceptance noted by appointee, is similarly met because, before entering on duty as County Executive Director, the individual must execute ASCS Form 586, the Oath of Office. Publication 22-PM 1163(A). Assuming these procedures were followed, it is concluded that the plaintiff was not only “appointed” as the term is defined under 5 U.S.C. § 2105, but also that he “revealed his awareness” of such when executing ASCS Form 586. Thus, contrary to defendant’s assertion, plaintiff has met the first prong of the test for “employee” as defined under § 2105.
2. Performance of a federal function
As previously outlined, the ASCS County offices are undeniably delegated the authority to administer federal programs. This question is factually and legally undisputed. See 16 U.S.C. § 590h(b); Gibson, 11 Cl.Ct. at 8; Duba, 303 at 571; Rasmussen, 222 F.Supp. at 441. Accordingly, it is concluded that the plaintiff has met the second prong of § 2105 in that he was clearly engaged in the performance of a federal function.
3. “Subject to supervision ” by an individual who is an employee as defined under § 2105
Defendant asserts that, because plaintiff served at the pleasure of the County Committee, he fails to meet the final prong under § 2105’s definition. However, this bland assertion is easily defeated.
The language contained at § 2105 states that the employee must be “subject to” supervision by an individual meeting this test. As has been established, the County Office which the plaintiff supervised, is subject to the “general direction and supervision” of the State Committee. 16 U.S.C. § 590h(b); 7 C.F.R. § 7.21; accord, Gibson, 11 Cl.Ct. at 8; Rasmussen, 222 F.Supp. at 441. State Committee members meet the definition of employee under § 2105 because they are directly appointed by the Secretary to perform a federal function and are subject to supervision by the ASCS, Washington, D.C. 16 U.S.C. § 590h(b). Accordingly, we hold that plaintiff meets each prong of the definition of *315employee contained at 5 U.S.C. § 2105.27 The court is now postured to assess the jurisdictional question presented with respect to plaintiffs Back Pay Act and Severance Pay Act claims.
D. Tucker Act Jurisdiction
The nucleus of the Claims Court’s jurisdiction under the Tucker Act is defined by 28 U.S.C. § 1491 to embrace:
... any claim against the United States founded either upon the Constitution or any Act of Congress, or any regulation of an executive department or upon any express or implied contract with the United States....
28 U.S.C. § 1491.
Section 1491, however, is narrowly construed, and therefore, does not ipso facto create a substantive right for money damages. See United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Under this narrow construction, the courts require that the claim asserted must be for money damages, Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605, 372 F.2d 1002, 1007 (1967), and that the plaintiff also assert an independent statute or regulation creating either an implied or express substantive right to receive monetary compensation from the government for damages. United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 2967-68, 77 L.Ed.2d 580 (1983); Eastport, 178 Ct.Cl. at 605, 372 F.2d at 1008.
Addressing the assertions contained in the instant action, the court notes that the plaintiff: (i) seeks monetary relief for an alleged breach of an implied-in-fact employment contract; (ii) seeks monetary relief in the form of back pay; and (iii) seeks monetary relief in the form of severance pay. For the reasons expressed below, we hold that: (1) the plaintiff fails to invoke the court’s Tucker Act jurisdiction under principles applicable to breach of an implied-in-fact contract claim; (2) we also are without jurisdiction to afford the plaintiff monetary relief under the Back Pay Act, 5 U.S.C. § 5596; and (3) although we possess jurisdiction to grant relief under the Severance Pay Act, 5 U.S.C. § 5595, we are unable to reach the merits of plaintiff’s claim, at this instant, in the context of defendant’s motion to dismiss for lack of jurisdiction.
1. Implied-In-Fact Contract
Based upon the court’s finding that plaintiff was a federal employee appointed subject to civil service laws, we are constrained to hold that his claim for damages for breach of an implied-in-fact contract is not meritorious. As previously demonstrated, supra, federal employment is a matter of legal status pursuant to statutes and regulations, not a matter of contract. See United States v. Hopkins, 427 U.S. 123, 129-30, 96 S.Ct. 2508, 2512, 49 L.Ed.2d 361 (1976); Brame v. United States, 10 Cl.Ct. 252, 256 (1986). Moreover, and contrary to the plaintiff’s assertion, Publication 22-PM did not and does not establish the terms and conditions of a contract because it was promulgated merely to “instruct” State and County offices on the appropriate procedures to be followed in office administration. Also, said publication specifically refers to the County Executive Director’s “appointment,” thus supporting the court’s finding that plaintiff entered into competitive service under federal appointment as defined under § 2105. Given these circumstances, we are constrained to conclude that the plaintiff’s assertion, that he was employed by the ASCS under an implied-in-fact contract, is spe*316cious and contrary to fact and law. Accordingly, we hold that said contention cannot invoke this court’s Tucker Act jurisdiction based upon an asserted breach of an alleged implied-in-fact contract.
2. Limitation on Claims Court Back Pay Act Jurisdiction, United States v. Fausto28
Our finding, supra, that plaintiffs status satisfies the elements to the definition of an employee under 5 U.S.C. § 2105, renders defendant’s contrary contention irrelevant with regard to the plaintiff’s ability to seek relief under the Back Pay Act, 5 U.S.C. § 5596.29 This is so, as we now explain, because we are without subject matter jurisdiction to entertain the complaint to the degree that it avers that the plaintiff is entitled to relief under the Back Pay Act.
In United States v. Fausto, 484 U.S. -, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988), the Supreme Court recently examined Claims Court Tucker Act jurisdiction in the context of a Back Pay Act claim, and unequivocally found jurisdiction lacking. 484 U.S. at-, 108 S.Ct. at 676-77, 98 L.Ed.2d at 844. Although the plaintiff in Faus-to was characterized as an excepted non-preference civil service employee, that case, nevertheless, controls the relevant jurisdictional issues herein presented.
This is so because the Court there found that the comprehensive review scheme of the Civil Service Reform Act of 1978 (CSRA) implicitly repealed pre-CSRA judicial interpretation of the Back Pay Act. Prior to CSRA enactment, judicial interpretation “allowed review in the Court of Claims of the underlying personnel decision giving rise to the claim for back pay.” Fausto, 484 U.S. at-, 108 S.Ct. at 676, 98 L.Ed.2d at 844. According to the Supreme Court, however, repeal of such authority occurred post-CSRA because:
Before enactment of the CSRA, regulations ... provided that a court authorized to correct ... an unjustified personnel action was an “appropriate authority” within the meaning of the Back Pay Act. 5 C.P.R. 550.803(c) (1968). And the Court of Claims had held ... that it was such a court because it had jurisdiction to award backpay.
484 U.S. at-, 108 S.Ct. at 676, 98 L.Ed. 2d at 844 (citation omitted). However, weighing the “comprehensive and integrated review scheme of the CSRA” against the “pre-existing patchwork scheme,” the Supreme Court concluded that, “the Claims Court (and any other authority relying on Tucker Act jurisdiction) is not an ‘appropriate authority’ [as the phrase had previously been interpreted] to review an agency’s *317personnel determination.” Id. (emphasis added).
Indeed, Fausto quite specifically construes the phrase “appropriate authority” as used in the Back Pay Act to mean the agency, i.e., the Merit Systems Protection Board (MSPB), or the Court of Appeals for the Federal Circuit (CAFC), and not the U.S. Claims Court. Therefore, given the foregoing, we hold that this court is without jurisdiction to entertain this action to the degree plaintiff seeks relief under the Back Pay Act.30
3. Relief Under The Severance Pay Act31
Notwithstanding Fausto, supra, we also hold that the Claims Court has jurisdiction to award relief to plaintiff under the provisions of the Severance Pay Act; and we may entertain a claim presented thereunder if the plaintiff satisfies the elements entitling him to relief on the merits.
The Severance Pay Act, unlike the Back Pay Act, contains no language predicating entitlement thereunder to a finding by “an appropriate authority” that an agency decision was erroneous. Congress enacted the Severance Pay Act to “afford monetary relief to Federal employees who, after long years of faithful public service, ‘find themselves out in the cold without work and without retirement,’ with the complete loss of earned employee rights.” Sullivan v. United States, 4 Cl.Ct. 70, 74 (1983), aff'd, 742 F.2d 628 (Fed.Cir.1984), citing, Akins *318v. United States, 194 Ct.Cl. 477, 484, 439 F.2d 175, 178 (1971). Consistent with our Tucker Act jurisdiction to review claims which allege violation of a statute or regulation mandating the payment of money for violation thereof, this court has, in the past, reviewed the facts underlying claims of entitlement under the Severance Pay Act. See e.g. and compare, Santora v. United States, 10 Cl.Ct. 38 (1986); Santora v. United States, 9 Cl.Ct. 182 (1985); Sullivan, supra, with, Spring v. United States, 492 F.2d 1053 (4th Cir.1974) (reversing summary judgment to government of District Court decision where that court entertained Severance Pay Act claims pursuant to authority vested in it under 28 U.S.C. § 1346). However, for the reasons stated, infra, we conclude that this case is not properly postured for consideration and a determination on the merits of the plaintiffs claim of entitlement.
To establish entitlement to severance pay, a plaintiff must show that he was: (i) an employee as defined under the Act; (ii) employed for a continuous period of at least 12 months; (iii) involuntarily separated from service; and (iv) not removed for cause on charges of misconduct, delinquency, or inefficiency. 5 U.S.C. § 5595. “The provisions governing eligibility for severance pay due to involuntary separation are to be construed liberally.” Santora v. United States, 9 Cl.Ct. at 186, citing, Sullivan v. United States, 4 Cl.Ct. at 74-75, aff'd per curiam, 742 F.2d 628 (Fed.Cir.1984).
Applying the requisite liberal construction; we find that the plaintiff fulfills the eligibility requirements to the extent that: (1) he was an employee as defined on the face of the statute, 5 U.S.C. § 5595(a)(2)(B); (2) it is undisputed factually that the plaintiff was employed for a continuous period of no less than 12 months; and (3) it is also undisputed factually that the plaintiff was involuntarily separated from service. Nevertheless, the facts are strenuously disputed with regard to the propriety of the agency’s characterization of plaintiffs separation as “removal for cause.” The correctness of this factual determination is dispositive of the issue of entitlement to severance pay, and is, therefore, improperly postured in the context of a decision on defendant’s motion to dismiss. We, therefore, decline to address that issue in the present posture of this case and, accordingly, reserve same for further proceedings.
Conclusion
Based upon the foregoing, the court grants defendant’s motion to dismiss in part and denies it in part. To the extent that the plaintiff seeks entitlement to damages for an alleged breach of an implied-in-fact contract, such relief is hereby DENIED for failure to state a claim upon which relief can be granted, and defendant’s motion to dismiss on that basis is hereby GRANTED. RUSCC 12(b)(4). Furthermore, inasmuch as this court is only permitted to act within the bounds of statutory authority as defined by Congress, and thus, cannot remand or transfer plaintiff’s Back Pay Act claim(s) to the MSPB, defendant’s motion to dismiss such claim(s) for lack of subject matter jurisdiction is hereby GRANTED. RUSCC 12(b)(1). Finally, to the extent plaintiff seeks relief under the provisions of the Severance Pay Act, we hold that this court possesses subject matter jurisdiction, and, in addition, there exists an unresolved dispositive factual issue with regard to the propriety of defendant’s characterization of plaintiff's separation as a “removal for cause.” Therefore, defendant’s motion to dismiss plaintiff’s claim to the extent such claim may entitle him to severance pay is hereby DENIED.
Inasmuch as the claim for severance pay remains open, a telephonic status conference is hereby scheduled for Friday, July 29, 1988, at 4:00 p.m. On this date, the parties are directed to be prepared to advise the court as to how they wish to proceed relative to the pending claim for severance pay. Furthermore, the parties are hereby directed to prepare memoranda of law addressing the scope of this court’s review in this connection. Such memoran-da shall be filed with the court, and served via in-hand delivery on opposing counsel, *319on or before 11:00 a.m., Friday, July 29, 1988.
IT IS SO ORDERED.
SUPPLEMENTAL MEMORANDUM ORDER
Background
On July 25, 1988, the court filed an interim opinion in subject case wherein the parties were directed to prepare memoranda of law addressing the scope of this court’s review on the remaining issue of — whether the Department of Agriculture, Agricultural Stabilization and Conservation Service’s (ASCS) Clay County Committee had properly characterized plaintiff’s termination as “removal for cause.” Such mem-oranda were filed with the court on July 29, 1988. Following thereon, during a telephonic status conference conducted August 1, 1988, the court further directed plaintiff to file a supplemental memorandum of law, therein citing to pointed authorities supportive of his position that this court’s review should be de novo with respect to the foregoing issue. Said memorandum was filed by plaintiff on August 5, 1988. Defendant’s response thereto was filed on August 11, 1988.
Contentions of the Parties
Without citing case law supportive of his position, plaintiff asserts that he is entitled to a trial de novo or, alternatively, a de novo review of the record because no “independent review” (i.e., independent of the Department of Agriculture) has been conducted into the circumstances surrounding plaintiff’s termination. In opposition, defendant contends that plaintiff is merely entitled to a record review of the propriety of his removal to ensure that the officials who effectuated said removal did not act in an arbitrary and capricious manner, and that such action was not so grossly erroneous as to have been in bad faith. In this connection, defendant also asserts that plaintiff could have appealed his removal to the Merit Systems Protection Board (MSPB) for independent review, but that he chose not to do so.
Upon consideration of the parties’ submissions and relevant case law, we conclude that the scope of the court’s review in the instant matter is limited to the whole administrative record. Furthermore, in connection therewith, the court perceives its standard of review to be — whether the agency acted in an arbitrary and/or capricious manner in characterizing plaintiff’s removal as a “removal for cause”; and, further, whether or not such action was an abuse of discretion and not in accordance with the law, infra.
Analysis of the Parties’ Contentions
First, the court notes that, contrary to the defendant’s assertion, the plaintiff apparently could not have obtained from the MSPB “independent” review of his agency termination. This is so because the regulation which governs the removal of an ASCS employee, i.e., 7 C.F.R. § 7.34 (1984), states that “the determination of the Deputy Administrator is final and not subject to further administrative review.” (emphasis added). Thus, by applicable regulation, plaintiff was precluded from seeking independent administrative review of his removal. Further, and contrary to defendant’s position, we note that this court is not, contemporaneous with its consideration of plaintiff’s Severance Pay Act claims, required to determine whether or not plaintiff’s removal, per se, was appropriate. In other words, this court will decide one narrowly-drawn issue: whether on the whole record the additional stigma attached to plaintiff’s removal, i.e., the characterization of said removal as a “removal for cause,” was appropriate. See p. 318 supra; see also McNeill v. Butz, 480 F.2d 314, 320 (4th Cir.1973). Inasmuch as determination of this focused issue requires us to review the agency action that gave rise to such characterization, we hold that the court’s scope of review is limited to a review of the record previously before the agency. Our basis for so holding is discussed below, followed by a statement of the operative standard of review and a supplemental order of the court.
*320
Scope of Review
In defining our scope of review of subject agency’s action, we necessarily must look to the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-706 (1982); accord Pope v. United States, 15 Cl.Ct. 218, 222 n. 1 (1988). The APA provides an outline of the procedures for judicial review of administrative actions. See Wathen v. United States, 208 Ct.Cl. 342, 353 n. 6, 527 F.2d 1191, 1198 n. 6 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). Applying said procedures enunciated therein, and applicable case law interpreting those procedures, we find that plaintiff’s assertion that he is entitled to de novo review of the operative issue, supra, is in error.
Generally, de novo review of agency action under APA standards is the exception rather than the rule, unless an operative statute so requires. Norwich Eaton Pharmaceuticals, Inc. v. Bowen, 808 F.2d 486, 489 (6th Cir.), cert. denied, — U.S.-, 108 S.Ct. 68, 98 L.Ed.2d 32 (1987). Plaintiff has proffered no statutory authority whatsoever for his assertion, and after an independent search, we are constrained to conclude that statutory authority for de novo review, in this case, does not exist. Hence, we must examine the exceptions to the general rule that prohibits de novo review of agency action.
The exceptions to the general rule that would permit de novo review of agency action may be invoked when: (1) the action taken by the agency is adjudicatory in nature, and the agency factfinding procedures attendant thereto are inadequate; or (2) when issues that were not before the agency are raised in a proceeding to enforce non-adjudicatory agency action. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 36 (1971). Note, and we hold, that the two-part criteria of the first test is in the conjunctive. Neither exception applies in the instant action, as we explain, infra.
We find that the procedures employed by the Department of Agriculture attendant to plaintiff’s removal were adjudicatory in nature. An adjudicatory action is “one which determines ‘the respective rights and claims of the parties.’ ” Equal Employment Opportunity Commission v. Raymond Metal Products Company, 385 F.Supp. 907, 920 (D.Md.1974). At the administrative level, plaintiff was provided a hearing wherein he was permitted to introduce testimony and documentary evidence to buttress his position that he was wrongfully terminated. The result of that hearing was a determination of plaintiff’s rights and claims. Specifically, the Department of Agriculture found that plaintiff’s removal for cause by the County Committee was warranted, in spite of the fact that the State Committee had initially instituted a proceeding that could have resulted in plaintiff’s removal without prejudice. Ergo, the procedures employed by the Department of Agriculture were adjudicatory.
However, notwithstanding the fact that the action taken by the Department of Agriculture was adjudicatory in nature, we are constrained to conclude that the first exception, nevertheless, does not apply. The second prong to this exception, that plaintiff also must satisfy, requires that the “factfinding procedures” underlying the adjudicative action must have been “inadequate.” Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. Here, the factfinding procedures utilized by the agency cannot be said, on this record, to have been “inadequate.” Plaintiff was afforded fundamental due process inasmuch as the opportunity to call witnesses, cross examine ASCS witnesses, and introduce documents into evidence was fully extended.1 Thus, plaintiff’s situation does not satisfy the first exception under the APA that would have allowed this court to conduct a de novo review of his claim.
Likewise, as to the second exception, we must conclude that plaintiff fails to satisfy that test. That exception is only applicable *321when the prior proceedings were to “enforce nonadjudicatory action.” Norwich Eaton Pharm., 808 F.2d at 489. As stated, the administrative proceedings underlying this action were adjudicatory in nature. Therefore, we must necessarily conclude that the plaintiff is not entitled to de novo review of the agency action that resulted in his removal being characterized as “removal for cause.” Against the foregoing, we will next address the standard of review under which we will conduct our record review of the agency action herein challenged.
Standard of Review
Under the APA, “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review” pursuant thereto. 5 U.S.C. § 704 (1982). See Bowen v. Massachusetts, — U.S. -, _, 108 S.Ct. 2722, 2736, 101 L.Ed.2d 749 (1988). “The legislative material elucidating [the] ... act manifests a congressional intention that it cover a broad spectrum of administrative actions_” Id. The Supreme Court echoes that “theme by noting that the Administrative Procedures Act’s ‘generous review provisions must be given a “hospitable” interpretation.’ ” Id., citing, Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).
We previously noted that there is clear congressional intent that federal employees be permitted to seek judicial review of Severance Pay Act claims, 5 U.S.C. § 5595. Specifically, we note that this statute was enacted to afford monetary relief to federal employees who, after long years of faithful public service, find themselves out in the cold, without work, without retirement, and with the complete loss of earned employee rights. See p. 317-18, supra, citing Sullivan v. United States, 4 Cl.Ct. 70, 74 (1983), aff'd 742 F.2d 628 (Fed.Cir.1984). Moreover, considering the congressional intent behind the Severance Pay Act, the court is constrained to conclude that denial of the benefits thereunder is not a matter “committed to agency discretion by law” that would, of course, otherwise preclude judicial review. 5 U.S.C. § 701(a)(2); see, Over-ton Park, 401 U.S. at 410, 91 S.Ct. at 820; accord Pope, supra, 15 Cl.Ct. at 222. Having determined that judicial review is appropriate, and that the court is required to review the whole administrative record, we next delineate the appropriate standard that the agency action must satisfy in order to meet APA requirements.
Generally, judicial review of administrative actions in the civilian pay areas is limited. Pearson v. United States, 1 Cl.Ct. 78, 88, 555 F.Supp. 388 (1983). However, in all cases where judicial review is appropriate, agency action must be set aside if the action is “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law’ or if the action fail[s] to meet statutory, procedural, or constitutional requirements.” 5 U.S.C. §§ 706(2)(A), (B), (C), (D) (1982); Overton Park, 401 U.S. at 413-14, 91 S.Ct. at 822; see also Pope, supra, 15 Cl.Ct. at 222. Thus, in reviewing the operative issue currently before the court, we will apply the aforementioned APA standards and consider whether the agency acted either in an arbitrary and capricious manner, or whether the agency abused its discretion in characterizing Mr. Hedman’s removal as “for cause,” and, further, whether such action meets statutory, procedural, and constitutional requirements. Overton Park, 401 U.S. at 414, 91 S.Ct. at 822-23; see also Pope, supra, 15 Cl.Ct. at 222. In accomplishing the foregoing, the court will, of course, endeavor to take care to assure that it does not “substitute its judgment for that of the agency.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 824.
Summary and Order
Notwithstanding our limited scope of review, we will consider the foregoing issue raised by plaintiff’s Severance Pay Act claims based upon the full administrative record that was before the Deputy Administrator at the time he made his decision, without regard to whether said record was fully examined by him in reaching that decision. In short, we will determine— whether the County Committee’s decision *322characterizing plaintiff’s removal as “removal for cause” violates APA standards. Given the foregoing, the court HEREBY ORDERS that:
1. The parties shall file with the court on or before September 6, 1988, the full and complete administrative record. Attached thereto shall be — (i) a detailed index identifying each document and the page number; and (ii) a joint stipulation to the effect that said administrative record is complete and accurate.
2. On or before September 22, 1988, plaintiff shall file his motion for summary judgment. Said motion shall cite specifically to those portions of the administrative record which support his contention that the County Committee’s characterization of plaintiff’s removal, as a “removal for cause,” was inappropriate. Said memorandum shall fully comply with RUSCC 7, 56, and 83.
3. On or before October 24, 1988, defendant shall file its opposition to plaintiff’s motion for summary judgment. Concomitantly, it shall also file its cross-motion for summary judgment, similarly delineating those portions of the administrative record which support its contention that the County Committee’s characterization of plaintiff’s removal, as a “removal for cause,” was appropriate. Said memorandum shall fully comply with RUSCC 7, 56, and 83.
4. On or before November 10, 1988, plaintiff shall file his reply to defendant’s opposition to plaintiff’s motion for summary judgement; and contemporaneously, plaintiff shall also file his opposition to defendant’s cross-motion for summary judgment. Said filings shall fully comply with RUSCC 7, 56, and 83.
5. On or before November 28, 1988, defendant shall file its reply to plaintiff’s opposition to defendant’s cross-motion for summary judgment. Said filing shall fully comply with RUSCC 7, 56, and 83.
6.Service of the aforementioned pleadings shall be made by the party so filing, by overnight mail. Filings shall be made with the court, in hand by messenger on the dates indicated.
Finally, the court will take under advisement plaintiff’s request that we consider the deposition of County Committee member, Roy Grover, in conjunction with our review of the propriety of the Committee’s characterization of Mr. Hedman’s removal as a “removal for cause.” (See note 1, supra.) We note that such deposition was taken during the district court proceeding initiated subsequent to Mr. Hedman’s administrative hearing. Plaintiff’s Supplemental Memorandum of Law, p. 6. Consequently, such testimony is not part of the “record” that was before the administrative agency. As justification for admitting subject deposition, plaintiff, without citing supporting authority for his proposition, blandly avers that the deposition would be offered “to show the procedure which the County Committee used to terminate Hed-man’s employment.” Considering our limited inquiry in this case, supra, we will allow plaintiff to file such document with the court, apart from the administrative record, solely for the purpose that the court may ascertain whether, in fact, the administrative record establishes the requisite bad faith or improper behavior that would warrant our consideration of such testimony, see Overton Park, supra, 401 U.S. at 420, 91 S.Ct. at 825-26 and whether the administrative record is adequate with respect to our limited inquiry. See also Norwich Eaton Pharm., supra, 808 F.2d at 489. The court’s opinion premised on its review of the administrative record will, of course, state whether said deposition was considered in its review, and, if so, the factual and legal justifications therefor.
IT IS SO ORDERED
. Claims Court jurisdiction under 28 U.S.C. § 1491 embraces:
... any claim against the United States founded either upon the Constitution or any Act of Congress, or any regulation of an executive department or upon any express or implied contract with the United States.
. A federal court may make factual findings which are decisive of the jurisdictional issue. That is to say, the court, on a motion to dismiss for want of jurisdiction, is not limited to an inquiry into undisputed facts. It may decide for itself the factual issues pertinent to resolving jurisdiction. See Mark Smith Const. Co., Inc. v. United States, 10 Cl.Ct. 540, 541 n. 1 (1986); Fidelity & Deposit Co. of Maryland v. United States, 2 Cl.Ct. 137, 145 (1983).
. Notwithstanding the workload problem, conceded at least by the County Committee on September 15, 1983, plaintiff received continuous satisfactory performance ratings up to and including his last, on December 8, 1983. As Executive Director, plaintiff was subject to review annually, by either the State ASCS Executive Director, his designee, or the County Committee.
. Approximately one year after plaintiff was terminated, the staff in the Clay County office increased from 10 to 18 employees.
. Publication 22-PM is the short title for the ASCS Handbook, County Office Personnel Management for State and County Offices. The Handbook is promulgated by the United States Department of Agriculture, Agricultural Stabilization and Conservation Service, Washington, D.C., pursuant to authority delegated thereto under the Soil Conservation and Domestic Allotment Act, 16 U.S.C. §§ 590d and 590h, and 7 C.F.R. § 7.38. See Publication 22-PM, Part 1, ¶7. Said handbook provides specific "instructions to State and County Offices on all phases of the personnel management program for County office employees and Committee members.” Publication 22-PM, Part 1, U 1. based upon the general provisions for such contained at 7 C.F.R. Part 7.
. Although plaintiff states that the separation procedures were contained in Part 3 of Publication 22-PM, the certified copy of said publication, filed with this court on June 28, 1988, lists such procedures at Part 10. The date this publication was revised is listed as August 8, 1984. Thus, this document represents an authentic compilation of the relevant procedures in effect on the date plaintiff was terminated, i.e., September 5, 1984. Accordingly, all references in this opinion will pertain to the copy of Publication 22-PM filed in this court June 28, 1988.
. Many of the provisions for terminating the County Executive Director contained in the manual are codified in general terms in the Code of Federal Regulations, 7 C.F.R. §§ 7.29 to 7.31 (1984).
. 7 C.F.R. § 7.34 (1984) provides that the determination of the Deputy Administrator is final and not subject to further administrative review.
. The plaintiff asserts (and the defendant denies) that the ASCS County Committee is a “division" of the United States Department of Agriculture.
. We view defendant’s arguments to be averred in the alternative.
. This assertion is apparently pursuant to 7 C.F.R. § 7.21(b) as well as to the provisions of Publication 22-PM.
. 5 U.S.C. § 301, relating to the promulgation of departmental regulations, provides in pertinent part:
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property....
. 5 U.S.C.App. pp. 291-92, Reorganization Plan No. 2 of 1953, provides in pertinent parts:
Sec. 1. Transfer of functions to the Secretary. (a) Subject to the exceptions specified in subsection (b) of this section, there are hereby transferred to the Secretary of Agriculture ¿1 functions not now vested in him of all other officers, and of all agencies and employees, of the Department of Agriculture.
(b) This section shall not apply to the functions vested by the Administrative Procedure Act [sections 551 and 701 et seq. of this title] in hearing examiners employed by the Department of Agriculture....
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Sec. 4. Delegation of functions, (a) The Secretary of Agriculture may from time to time make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by any agency or employee, of the Department of Agriculture of any function of the Secretary, including any function transferred to the Secretary by the provisions of this reorganization plan.
(b) To the extent that the carrying out of subsection (a) of this section involves the assignment of major functions or major groups of functions to major constituent organizational units of the Department of Agriculture, now or hereafter existing, or to the heads or other officers thereof, and to the extent deemed practicable by the Secretary, he shall give appropriate advance public notice of delegations of functions proposed to be made by him and shall afford appropriate opportunity for interested persons and groups to place before the Department of Agriculture their views with respect to such proposed delegations.
(c) In carrying out subsection (a) of this section the Secretary shall seek to simplify and make efficient the operation of the Department of Agriculture, to place the administration of farm programs close to the State and local levels, and to adapt the administration of the programs of the Department of regional, State, and local conditions.
Sec. 5. Incidental transfers. The Secretary of Agriculture may from time to time effect such transfers within the Department of Agriculture of any of the records, property, and personnel affected by this reorganization plan and such transfers of unexpended balances (available or to be made available for use in connection with any affected function or agency) of appropriations, allocations, and other funds of such Department, as he deems necessary to carry out the provisions of this reorganization plan; but such unexpended balances so transferred shall be used only for the purposes for which such appropriation was originally made.
.16 U.S.C. § 590h(b), Payments and grants of aid, provides in pertinent part:
(b) Payments and grants of aid; local, county, State committees, rules and regulations; ... In carrying out the provisions of this section in the States ..., the Secretary is directed to utilize the services of local and State committees selected as hereinafter provided. The Secretary shall designate local administrative areas as units for administration of programs under this section.... Farmers within any such local administrative area, and participating or cooperating in programs administered within such area, shall elect annually from among their number a local committee of not more than three members for such area. The members of the local committees shall, in a county convention, nominate and elect a county committee which shall consist of three members who are farmers in the county. At the first county convention held on or after the effective date of this sentence, one member of the county committee shall be elected for one year; one member shall be elected for two years; and one member shall be elected for three years. Thereafter, each member of a county committee shall be elected for a term of three years. No member of the county committee shall be elected for more than three consecutive terms_ The local com-
mittee shall select a secretary and may utilize the county agricultural extension agent for such purpose. The county committee shall select a secretary who may be the county agricultural extension agent.... In any county in which there is only one local committee the local committee shall also be the county committee. In each State there shall be a State committee for the State composed of not less than three or more than five farmers who are legal residents of the State and who are appointed by the Secretary. The State director of the Agricultural Extension Service shall be ex officio a member of such State committee.... The Secretary shall make such regulations as are necessary relating to the selection and exercise of the functions of the respective committees, and to the administration, through such committees, of such programs....
. See The United States Government Manual, 1987/88, Office of the Federal Registrar, National Archives and Record Administration, p. 121.
. Id.
. The Secretary delegated his authority to supervise and to direct State and County ASCS offices, and to designate functions to be performed by the State and County Committees, to the Under Secretary, International Affairs and Commodity Programs, 7 C.F.R. § 2.21(b)(2) (1984). The Under Secretary, in turn, delegated this authority to the Administrator of the Agricultural Stabilization and Conservation Service, Washington, D.C. 7 C.F.R. § 2.65(20). The Under Secretary also delegated: (a) supervision of the County Committees to the State Committee, 7 C.F.R. § 7.21; (b) authority to select a County Executive Director to the County Committee, 7 C.F.R. § 7.21(b); and (c) authority to staff County offices to the County Executive Director, 7 C.F.R. § 7.26(b).
. 16 U.S.C. § 590d provides in pertinent part:
§ 590d. Cooperation of governmental agencies; officers and employees, appointment and compensation; expenditures for personal services and supplies For the purposes of this Act, the Secretary of Agriculture may—
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(2) Subject to the provisions of the civil-service laws and Classification Act of 1923, as amended, appoint and fix the compensation of such officers and employees as he may deem necessary, except for a period not to exceed eight months from the date of this enactment [enacted Apr. 27, 1935], the Secretary of Agriculture may make appointments and may continue employees of the organization heretofore established for the purpose of administering those provisions of the National Industrial Recovery Act which relate to the prevention of soil erosion, without regard to the civil-service laws or regulations and the Classification Act, as amended, and any person with technical or practical knowledge may be employed and compensated under this Act on a basis to be determined by the Civil Service Commission; and
(3) Make expenditures for personal services ... and perform such acts, and prescribe such regulations, as he may deem proper to carry out the provisions of this Act.
. See also, Protection of Land Resources Against Soil Erosion, S.Rep. No. 466, 74th Cong., 1st Sess. at 4 (1935), which states — “Subsection 2 of section 4 (codified at 16 U.S.C. § 590d) as amended, places officers and employees who will administer the act under civil service, except that employees of the Soil Erosion Service need not go under civil service for a period of 8 months from the date of the act.”
. In clarification, it is noted that the Secretary’s use of State and County committees began prior to the creation of the ASCS, with the enactment of the Soil Conservation and Domestic Allotment Act. The committees were initially supervised by other agencies within the Department, not relevant to this discussion.
After the pronouncement of Reorganization Plan No. 2 of 1953, the supervision of the Committees was assigned to the Commodity and Stabilization Service (predecessor to the ASCS). See Baker, et al, CENTURY OF SERVICE: The First 100 Years of THE UNITED STATES DEPARTMENT OF AGRICULTURE, Economic Research Service, Agricultural History Branch, pp. 378-409. In 1961, the Secretary transferred supervision of the State and County Committees to the ASCS, where it remains today. See footnote 18, supra. See also, The United States Government Manual, 1987/88, Office of the Federal Registrar, National Archives and Record Administration, p. 121.
. 5 U.S.C. § 2102 provides in pertinent part: § 2102. The competitive service
(a)The "competitive service” consists of—
(1) all civil service positions in the executive branch, except—
(A) positions which are specifically excepted from the competitive service by or under statute;
(B) positions to which appointments are made by nomination for confirmation by the Senate, unless the Senate otherwise directs; and
(C) positions in the Senior Executive Service;
(2) civil service positions not in the executive branch which are specifically included in the competitive service by statute; and
(3)positions in the government of the District of Columbia which are specifically included in the competitive service by statute.
(b) Notwithstanding subsection (a)(1)(B) of this section, the "competitive service" includes positions to which appointments are made by nomination for confirmation by the Senate ■when specifically included therein by statute.
(c) As used in other Acts of Congress, "classified civil service” or “classified service" means the "competitive service.”
. OPM Excepted Service Consolidated Listing of Schedule A, B, and C Exceptions, 49 Fed.Reg. 38724, et seq. (1984), codified at 5 C.F.R. § 213.101, et seq. (1984).
. 5 U.S.C. § 2105 provides in pertinent part:
§ 2105. Employee
(a) For the purpose of this title, “employee,” except as otherwise provided by this section or when specifically modified, means an officer and an individual who is—
(1)appointed in the civil service by one of the following acting in an official capacity—
(A) the President;
(B) a Member or Members of Congress, or the Congress;
(C) a member of a uniformed service;
(D) an individual who is an employee under this section;
(E) the head of a Government controlled corporation; or
(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;
(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.
. As noted, the State Committee members are directly appointed by the Secretary of Agriculture.
. Because it is undisputed that the handbook was not published in the Federal Register and, therefore, not promulgated according to the strict requirements of the Administrative Procedures Act, 5 U.S.C. § 552(a)(1), it cannot be accorded the dignity of regulations. See Thomas v. County Office Committee of Cameron County, 327 F.Supp. 1244, 1253 (D.Tex.1971), citing to United States v. Morton Salt Co., 338 U.S. 632, 644-45, 70 S.Ct. 357, 364-65, 94 L.Ed. 401 (1950). Nevertheless, we accord this manual considerable weight because it constitutes a "body of informed judgment” to which the courts may properly resort for guidance. Accord, Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); Thomas, 327 F.Supp. at 1253-54.
.The State Executive Director is a Civil Service excepted employee. See 5 C.F.R. § 6.8(c) (1984), reprinted in 5 U.S.C. § 3301, note, Rule 6.8(c).
. Cf. Kelly v. Herak, 252 F.Supp. 289, 297 (D.Mont.1966) (ASCS office manager suspended by State Committee) (held: Although government employee has no constitutional right to a hearing with all the requirements of due process, " 'where governmental action seriously injures an individual, and the reasonableness of the action depends on fact finding,’ due process requires disclosure of evidence supporting government’s case"; aff’d, 391 F.2d 216 (9th Cir.1968)); and Rasmussen, 222 F.Supp. at 441, wherein the court stated that “although the question [was] not free from doubt, ... the State Committee (trader its general supervisory powers) has the power to suspend a county manager when the County Committee ... fails to Act.” [We note that defendant erroneously argues that plaintiff concedes that he is not a federal employee.]
. 484 U.S.-, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988).
. 5 U.S.C. § 5596, Back Pay Due to Unjustified Personnel Action, provides in relevant part:
(a) For the purpose of this section, "agency" means—
(1) an Executive agency;
(2) the Administrative Office of the United States Courts;
(3) the Library of Congress;
(4) the Government Printing Office; and
(5) the government of the District of Columbia.
(b)(1) An employee of an agency who, on the basis of a timely appeal on an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee—
(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect—
(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period; and
(ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or grievance processed under a procedure negotiated in accordance with chapter 71 of this title, shall be awarded in accordance with standards established under section 7701(g) of this title;
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(c)The Office of Personnel Management shall prescribe regulations to carry out this section. However, the regulations are not applicable to the Tennessee Valley Authority and its employees.
. We are not unsympathetic to plaintiffs unfortunate predicament. Although requested by plaintiff during oral argument, this case cannot be transferred to the district court "in the interest of justice” pursuant to our authority under 28 U.S.C. § 1631 because said court has already concluded that it lacks subject matter jurisdiction over all of plaintiffs claims presented herein. Inasmuch as that court is the final arbiter of its jurisdiction, this court cannot and will not sit as a court of appeals with regard to its decision. See Little River Lumber Co. v. United States, 7 Cl.Ct. 492, 494 (1985).
This back pay claim, also, cannot be remanded to the agency (MSPB) for action because it is not within the court’s power to remand a case not within its jurisdiction. See Mark Smith Const., 10 Cl.Ct. at 546 n. 5. The court notes that to the extent that the MSPB, in Meland v. Department of Agriculture, No. DE03518020043, MSPB, August 4, 1980, and Norday v. Department of Agriculture, ASCS No. SL0752821023, October 19, 1982, declined to take jurisdiction over ASCS County office employees claims, we are unpersuaded that the Board lacks jurisdiction over plaintiffs Back Pay Act claims. The Meland decision failed to differentiate between ASCS County Offices and ASCS County Committees. As established, supra, they are patently identifiable and distinct units that perform separate functions under the supervision of the ASCS. Moreover, the Board's conclusion that the plaintiff was not "appointed" as required under 5 U.S.C. § 2105 is apparently contradictory to the statutory mandates of 16 U.S.C. § 590d, the legislative history relative thereto, and prior case law.
Similarly, Norday’s analysis is also questionable. There, the individual failed to submit a brief regarding his employment status. The Board, under the basic premise that the appellant had the burden of proof as to jurisdiction, accordingly found such lacking. See also Pavao v. Merit Systems Protection Board, 762 F.2d 988, 989 (Fed.Cir.1985) (MSPB lacks jurisdiction to review removal of ASCS County Executive Director where plaintiff fails to meet burden of proving he is an employee). See also 5 U.S.C. § 7513. Thus, to the extent that the Claims Court relied on Meland and Norday in Hamlet v. United States, 14 Cl.Ct. 62, 67 (1988), we respectfully decline to follow that lead.
. 5 U.S.C. § 5595, Severance pay, provides in pertinent part:
(a) For the purpose of this section—
(1) "agency” means—
(A) an Executive agency;
(B) the Library of Congress;
(C) the Government Printing Office; and
(D) the government of the District of Columbia; and
(2) "employee” means—
(A) an individual employed in or under an agency; and
(B) an individual employed by a county committee established under section 590h(b) of title 16;
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(b) Under regulations prescribed by the President or such officer or agency as he may designate, an employee who—
(1) has been employed currently for a continuous period of at least 12 months; and
(2) is involuntarily separated from the service, not by removal for cause on charges of misconduct, delinquency, or inefficiency; is entitled to be paid severance pay in regular pay periods by the agency from which separated.
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(g) The Secretary of Agriculture shall prescribe regulations to effect the application and operation of this section to an individual named by subsection (a)(2)(B) of this section.
. However, Roy Grover, one of the County Committee members who instituted the “for cause” removal proceedings against Hedman, did not testify at the administrative hearing conducted on January 18 and 19, 1985. See infra.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902068/
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—Judgment unanimously affirmed. Memorandum: Defendant appeals from judgments convicting him, on his guilty plea, of 13 counts of grand larceny in the second degree (Penal Law § 155.35) in full satisfaction of two indictments and four felony complaints involving forgeries and larcenies totaling in excess of $429,000. He contends that the court erred in sentencing him without inquiring into his claim that some of the alleged thefts were personal loans. By failing to raise this issue by motion to withdraw his plea or to vacate the judgment of conviction in the court of first instance, defendant has not preserved this issue for appellate review. (People v Pellegrino, 60 NY2d 636; People v Butler, 111 AD2d 404, 405.) In addition, that contention was not raised by defendant during his plea allocution or at sentencing but rather was only noted in the presentence report. Further, nothing in the record persuades us to exercise our discretion to vacate the judgment in the interest of justice (CPL 470.15). Defendant’s bare allegation of innocence is insufficient to entitle defendant to withdraw his guilty plea. (People v Grady, 110 AD2d 780.) In any event, that statement refers to unspecified transactions without relating them to the larcenies he unequivocally admitted in his plea allocution.
Defendant also contends that his indeterminate sentences for these convictions totaling a minimum of 5 years’ and a maximum of 15 years’ imprisonment were harsh and excessive. Sentencing is within the discretion of the trial court and will not be disturbed absent extraordinary circumstances or *970an abuse of discretion (People v Allyn, 92 AD2d 692). Our review of the record reveals no reason to disturb the trial court’s determination.
We have reviewed defendant’s remaining contentions and find them to be without merit. (Appeal from judgment of Supreme Court, Erie County, Dadd, J.—grand larceny, second degree.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902069/
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Determination unanimously confirmed and petition dismissed without costs. Memorandum: The determination of respondent Chief of Police denying petitioner’s application to renew an amusement center license was supported by substantial evidence (see, Merchants Rd. v Leach, 92 AD2d 719). The Chief of Police had the authority to deny petitioner’s application for renewal for failure to comply with Rochester Code provisions (see, Rochester Code § 29-15 [A]; § 29-18 [A]). Petitioner had been convicted of violating the noise ordinance of the City of Rochester (Rochester Code § 75-12 [A]) on numerous occasions in the six months prior to the application for renewal. At the hearing, neighborhood residents, police and the owner and an employee of Jazzberry’s testified to disorder on the premises and incidents of noise audible beyond the property line. (Article 78 proceeding transferred by order of Supreme Court, Monroe County, Wesley, J.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902070/
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Judgment unanimously affirmed. Same memorandum as in People v Murphy ([appeal No. 1], 136 AD2d 969 [decided herewith]). (Appeal from judgment of Supreme Court, Erie County, Dadd, J. —grand larceny, second degree.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902071/
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Judgment unanimously affirmed. Same memorandum as in People v Murphy ([appeal No. 1], 136 AD2d 969 [decided herewith]). (Appeal from judgment of Supreme Court, Erie County, Dadd, J. —grand larceny, second degree.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902072/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 26, 2011, which ruled that claimant’s request for a hearing was untimely.
After losing her job, claimant was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct. A notice of determination to that effect was mailed on June 1, 2010 and, despite admitting to receiving the letter, claimant did not request a hearing until August 2010. An Administrative Law Judge upheld the initial determination, finding that claimant’s request for a hearing was untimely. The Unemployment Insurance Appeal Board affirmed that decision and claimant now appeals.
We affirm. Fursuant to Labor Law § 620 (1) (a), a claimant who is dissatisfied with an initial determination regarding unemployment insurance benefits must request a hearing within 30 days unless prevented from doing so by physical or mental incapacity (see Matter of Smith [Commissioner of Labor], 98 AD3d 792, 792 [2012]; Matter of Ramos [Commissioner of Labor], 93 AD3d 1012, 1012-1013 [2012]). Here, claimant admitted to receiving the determination shortly after it had been mailed. Furthermore, the only excuse proffered for the untimely hearing request was that she initially believed she did not have a meritorious case. Accordingly, we find no reason to disturb the Board’s decision (see Matter of Smith [Commissioner of Labor], 98 AD3d at 792-793; Matter of Crowley [Commissioner of Labor], 94 AD3d 1323, 1324 [2012]).
Mercure, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902073/
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—Motion for reargument granted and upon reargument determination unanimously confirmed and petition dismissed (see, Matter of Lahey v Kelly, 71 NY2d 135). Cross motion to remand denied. Present—Denman, J. P., Green, Pine, Balio and Lawton, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129291/
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Judgment affirmed, with costs. Opinion by
Learned, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129292/
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— Judgment and order reversed, new trial granted, costs to abide event. Opinion by
Bockes, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129293/
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Decree affirmed, with costs. Opinion by
Boardman, J.;
Bockes, J., dissenting.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5907357/
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Judgment unanimously affirmed. Memorandum: We have reviewed all of the issues raised by defendant’s appellate counsel and by defendant pro se and we find that none has merit. We note specifically that there is no merit to defendant’s claim that he has been denied effective assistance of appellate counsel. We thus deny his application for withdrawal of the brief filed by assigned counsel and for the assignment of new appellate counsel. (Appeal from judgment of County Court, Niagara County, Hannigan, J. — criminal sale of controlled substance, third degree.) Present — Dillon, P. J., Doerr, Green, Pine and Balio, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902075/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 26, 2011, which ruled that claimant’s request for a hearing was untimely.
After losing her job, claimant was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct. A notice of determination to that effect was mailed on June 1, 2010 and, despite admitting to receiving the letter, claimant did not request a hearing until August 2010. An Administrative Law Judge upheld the initial determination, finding that claimant’s request for a hearing was untimely. The Unemployment Insurance Appeal Board affirmed that decision and claimant now appeals.
We affirm. Fursuant to Labor Law § 620 (1) (a), a claimant who is dissatisfied with an initial determination regarding unemployment insurance benefits must request a hearing within 30 days unless prevented from doing so by physical or mental incapacity (see Matter of Smith [Commissioner of Labor], 98 AD3d 792, 792 [2012]; Matter of Ramos [Commissioner of Labor], 93 AD3d 1012, 1012-1013 [2012]). Here, claimant admitted to receiving the determination shortly after it had been mailed. Furthermore, the only excuse proffered for the untimely hearing request was that she initially believed she did not have a meritorious case. Accordingly, we find no reason to disturb the Board’s decision (see Matter of Smith [Commissioner of Labor], 98 AD3d at 792-793; Matter of Crowley [Commissioner of Labor], 94 AD3d 1323, 1324 [2012]).
Mercure, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902076/
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—Motion for reargument granted and upon reargument determination unanimously confirmed and petition dismissed (see, Matter of Lahey v Kelly, 71 NY2d 135). Cross motion to remand denied. Present—Callahan, J. P., Denman, Boomer, Pine and Lawton, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902077/
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—Motion for permission to appeal as a poor person denied. Memorandum: The motion to appeal as a poor person is denied with leave to renew. The motion papers lack a financial affidavit sworn to by the appellants and an affidavit setting forth facts showing merit to the appeal (see, CPLR 1101; Matter of Teeter v Reed, 57 AD2d 735). Present—Dillon, P. J., Doerr, Boomer, Balio and Lawton.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902078/
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—Motion to dismiss appeal denied. Memorandum: Motion denied as unnecessary. The appeal has been deemed abandoned pursuant to 22 NYCRR 1000.3 (b) (2) and no formal order to that effect is necessary. Present—Dillon, P. J., Doerr, Boomer, Balio and Lawton, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902079/
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—Order entered terminating suspension and reinstating petitioner as an attorney and counselor-at-law. Present—Dillon, P. J., Callahan, Doerr, Denman and Boomer, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902081/
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
In accordance with the procedures governing family reunion visits, petitioner provided a urine specimen, known as a “B” sample, just prior to the visit. He provided another specimen, known as a “C” sample, after the visit. A correction officer performed two urinalysis tests on the “C” sample and the results of both were positive for the presence of cannabinoids. The officer then tested the “B” sample and the results were negative. The officer concluded that petitioner had used drugs during the visit and, consequently, issued a misbehavior report charging him with using narcotics and violating family reunion program procedures. Petitioner pleaded guilty to the former charge and, following a tier III disciplinary hearing, was found guilty of violating family reunion program procedures. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
Petitioner admitted to using marihuana and challenges only that part of the determination finding him guilty of violating family reunion program procedures. The detailed misbehavior report, positive urinalysis test results and related documentation, together with the testimony of the correction officer who tested petitioner’s specimens, provide substantial evidence supporting the determination of guilt with respect to this charge (see Matter of Smart v Fischer, 67 AD3d 1222, 1222 [2009], lv denied 14 NY3d 705 [2010]; Matter of Castaldo v Goord, 283 AD2d 838, 838 [2001]; see also 7 NYCRR 270.2 [B] [26] [iv]; 220.8). Petitioner denied using marihuana during the time period in question and maintained that his use of marihuana weeks prior to the family reunion visit tainted the accuracy of the “C” sample test results and that he was able to manipulate the accuracy of the “B” sample results by drinking water before giving the specimen. His testimony, however, presented a credibility issue for the Hearing Officer to resolve (see Matter of Henriquez v Bezio, 84 AD3d 1662, 1663 [2011]; Matter of Xao *1033He Lu v New York State Dept. of Corrections, 12 AD3d 1379, 1380 [2010]). His remaining contentions have not been preserved for our review.
Mercure, J.P., Rose, Spain, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129294/
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Judgment affirmed, with costs. Opinion by
Boardman, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129295/
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Judgment and conviction affirmed. Opinion by
Learned, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129296/
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Judgment and order reversed, new trial granted, costs to abide event Opinion by
Bockes, J., and Learned, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129297/
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Judgment reversed, new trial granted, costs to abide event. Opinion by
Boardman, J.;
Bockes, J., dissenting.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129298/
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— Judgment affirmed, with costs. Opinion by
Boardman, J.,
and by Learned, P. J., dissenting.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129299/
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Judgment and order reversed, new trial granted, costs to abide event. Opinion by
Bockes, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902083/
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
In accordance with the procedures governing family reunion visits, petitioner provided a urine specimen, known as a “B” sample, just prior to the visit. He provided another specimen, known as a “C” sample, after the visit. A correction officer performed two urinalysis tests on the “C” sample and the results of both were positive for the presence of cannabinoids. The officer then tested the “B” sample and the results were negative. The officer concluded that petitioner had used drugs during the visit and, consequently, issued a misbehavior report charging him with using narcotics and violating family reunion program procedures. Petitioner pleaded guilty to the former charge and, following a tier III disciplinary hearing, was found guilty of violating family reunion program procedures. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
Petitioner admitted to using marihuana and challenges only that part of the determination finding him guilty of violating family reunion program procedures. The detailed misbehavior report, positive urinalysis test results and related documentation, together with the testimony of the correction officer who tested petitioner’s specimens, provide substantial evidence supporting the determination of guilt with respect to this charge (see Matter of Smart v Fischer, 67 AD3d 1222, 1222 [2009], lv denied 14 NY3d 705 [2010]; Matter of Castaldo v Goord, 283 AD2d 838, 838 [2001]; see also 7 NYCRR 270.2 [B] [26] [iv]; 220.8). Petitioner denied using marihuana during the time period in question and maintained that his use of marihuana weeks prior to the family reunion visit tainted the accuracy of the “C” sample test results and that he was able to manipulate the accuracy of the “B” sample results by drinking water before giving the specimen. His testimony, however, presented a credibility issue for the Hearing Officer to resolve (see Matter of Henriquez v Bezio, 84 AD3d 1662, 1663 [2011]; Matter of Xao *1033He Lu v New York State Dept. of Corrections, 12 AD3d 1379, 1380 [2010]). His remaining contentions have not been preserved for our review.
Mercure, J.P., Rose, Spain, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/2075782/
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780 N.E.2d 352 (2002)
335 Ill. App. 3d 429
269 Ill. Dec. 167
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Brett RODGERS, Defendant-Appellant.
No. 5-01-0324.
Appellate Court of Illinois, Fifth District.
November 19, 2002.
*353 Jack Strellis, Strellis, Faulbaum, Walsh & Field, Waterloo; Stephen C. Buser, Law Office of Stephen C. Buser, Ltd., Columbia, for Appellant.
Robert Haida, State's Attorney, St. Clair County, Belleville; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Trent M. Marshall, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Appellee.
Justice KUEHN delivered the opinion of the court:
When darkness falls over the town of East St. Louis, Illinois, and the moon glistens on the black waters of the Mississippi, a riverfront hangout known as Affirmation East comes to life. Bartenders pour drinks, "Oatmeal" Gines spins records, and patrons make merry on a strobe-lighted dance floor. People can literally stay there all night long and, if they choose, dance until dawn.
The Affirmation East boasts two things that a lot of other nightclubs scattered around East St. Louis do not offer. First of all, it works very hard at making the club a safe place to be. Management insists upon a high level of security. Most of its patrons do not mind passing through its metal detector or complying with a routine request to search before being allowed to enter. Security is strictly enforced by a fleet of unarmed security guards. Even police officers are denied admittance if carrying a service revolver.
In addition to its reputation for providing a safe environment for patrons, Affirmation East is known for its famed fried chicken. The club features it nightly and makes sure that there is always plenty on hand to satisfy early morning appetites.
On July 25, 1999, at approximately 4 a.m., Brett Rodgers steered a drunken path to the Affirmation East, intent on satisfying a sudden hunger for its prized cuisine. Unfortunately, he arrived with more of an appetite for trouble than poultry, and when security personnel tried to block his admission, things really turned foul.
Five years earlier, Rodgers came home to East St. Louis after a stint in the navy and a combat tour of duty in the Middle East. He went to school, graduated, and got a job fighting a different kind of enemy. He became a lawman. His patrol of East St. Louis haunts and byways brought him in contact with more than a few drunk drivers and gun-toting bullies.
July 25, 1999, was the day that Brett Rodgers' law enforcement career ended. On his trip to the Affirmation East, he traded his time in a police uniform for time in a prison jumpsuit. He lost his badge, and he lost his freedom, when, in a fit of drunken anger, he shot a security guard in the leg for trying to block his admittance. A St. Clair County jury dismissed his claim that he was too intoxicated to know what he was doing. He currently serves an eight-year prison term for driving under the influence of alcohol and committing an aggravated battery with a firearm.
Rodgers asks us to overturn his aggravated-battery-with-a-firearm conviction. He maintains that the evidence belies the jury's verdict. He wants us to overrule the trial judge's denial of a motion for a *354 judgment of acquittal notwithstanding that verdict. The facts of the case are clear and uncontradicted.
At around 4 a.m. on the morning of July 25, 1999, Carlos Johnson and Sanchez Sylvester, two Affirmation East security guards, saw Rodgers pull up in front of the club. Rodgers got out of his vehicle and moved several orange cones that served as a barrier to parking in front of the club. The area was reserved for use only by very important patrons. Johnson and Sylvester did not think that Rodgers was so qualified. As Rodgers pulled into his newly created parking spot in front of the club, Johnson and Sylvester left their posts to inform him that his Suburban would have to be moved from the reserved area.
Rodgers had enough alcohol in his system to incapacitate most men. His blood would later test out at a .268 blood-alcohol concentration. The state of inebriation no doubt fueled a belligerent attitude over the security guards' request that he find another parking spot. Rodgers told them, "You've got to be kidding," and defiantly exited his vehicle. Johnson saw Rodgers take his service revolver from the passenger seat where it rested, reach behind himself, and tuck it down the small of his back into his pants.
Sylvester remained unaware of the fact that Rodgers was armed. He told Rodgers that he could not enter the club in tennis shoes. As Rodgers approached the club's entrance, he announced that he was an East St. Louis police officer and explained that it was a status that afforded him certain license. Even though the club might not want him to park where he did or come into the club with tennis shoes on, he could park wherever he pleased and wear whatever he wanted. As Rodgers succinctly defined the license of his office, "I can do what the fuck I want to do."
Rodgers was about to take this proclamation of authority to disobey parking restrictions and nightclub dress codes to a greater height.
As Sylvester stood between him and the door, Rodgers clenched his fists and advanced for a fight. Sylvester sent him to the ground with a right to the jaw. It is unfortunate for Johnson, and for Rodgers, that it was not a knockout punch.
Rodgers rose to renew the encounter. This time he approached with something to better his position. Service revolver in hand, he again made his way to the club's entrance. Sylvester wisely withdrew as fast as his feet would carry him. Anticipating trouble, Johnson had already run into the club. He yelled at the bartenders to summon the police and warned patrons to back away.
Rodgers entered the club, holding his revolver in a manner designed to take steady, dead aim. His arms were outstretched and both hands held the weapon. He wielded it back and forth, as he slowly walked toward Johnson. Patrons hastily parted to create a path as Rodgers trained his weapon upon Johnson and commanded Johnson to approach him. Johnson thrust his hands into the air and froze. Rodgers grabbed him, shoved him back, altered his aim, and fired a point-blank round into Johnson's left leg.
Although Rodgers was only trying to maim and not trying to kill, Johnson could easily have perished from the wound. The bullet shattered Johnson's left femur and severed the femoral artery. Johnson fell to the ground. His stirred heart pumped rapidly, and with each beat, a large gush of Johnson's lifeblood was lost.
After shooting Johnson, Rodgers spun around, gun in hand, and yelled for everyone in the club to "get down." Everyone *355 complied. Consequently, no one saw what happened next.
As Johnson lay on the ground, trying to hold back the streams of blood flowing from his wound, he heard two more shots, followed by the exclamation, "Oh, shit!" Johnson was suddenly joined on the ground by Rodgers, who fell at Johnson's side with a gaping wound to the face. He had somehow managed to shoot himself. It is uncertain whether he did so intentionally or not.
Johnson and Rodgers were taken to the emergency room and treated. When the hospital performed blood tests on Rodgers, they revealed a blood-alcohol concentration of .268, more than three times the amount at which the law presumes physical and mental impairment.
The foregoing facts were presented through numerous witnesses and were really never placed in dispute. Although the defendant certified the affirmative defense of self-defense, he never put forth a version of events upon which to base such a defense. His brief explains why. Appellate counsel writes:
"As a result of Dr. Ullah's expert witness testimony and opinions regarding the meaning of the Defendant's level of intoxication as it related to the Defendant's perception and judgment, the Defendant asserted the defense of voluntary intoxication, abandoned the former defense of self-defense[,] and chose not to testify in his own defense."
Dr. Sara Ullah, the physician who treated Rodgers, testified for the State. Her testimony was offered to help prove the driving-under-the-influence charge. However, the prosecutors did not limit their inquiry of Dr. Ullah to her test results and her observations of intoxication. They asked her opinion about what Rodgers' high level of blood-alcohol concentration meant in terms of his impairment. Her answer is the linchpin of Rodgers' argument that the evidence was legally insufficient to refute the defense of voluntary intoxication. He maintains that "the record is devoid of any evidence of the requisite intent" to commit the crime of aggravated battery.
The critical passage of trial testimony reads as follows:
"Q. Okay. And a person with more than three times the legal limit, would that affect someone's ability to perceive things?
A. Definitely.
Q. Would it affect an individual's judgment?
A. It will."
At the close of the State's case, defense counsel moved for an acquittal on the aggravated battery charge, arguing that the expert testimony tendered by the State had raised the intoxication defense and established in uncontradicted fashion that Rodgers lacked the capacity to exercise judgment or perceive the significance of events. After the trial judge denied the motion, defense counsel argued the intoxication defense to the jury. Counsel told the jury that the State's own expert witness had testified that, with a .268 blood-alcohol concentration, "definitely, definitely one's judgment would be suspended." After closing arguments were completed, the jury was instructed on the voluntary intoxication defense.
No one ever questioned how the defense of voluntary intoxication could be raised to excuse guilt for a general-intent crime like aggravated battery with a firearm.[1] Given *356 the fact that a wealth of witnesses saw Rodgers shoot Johnson in the leg while Johnson assumed a posture of surrender, it is understandable that defense counsel would want to abandon a defense that claimed the right to use deadly force in self-defense. However, the defense fashioned around Dr. Ullah's opinion about impairment was completely lacking in legal efficacy. Defense counsel was fortunate to receive a voluntary intoxication instruction, the State having registered no objection to it.
It is well-settled that the defense of voluntary intoxication may be employed only when the offense charged requires the proof of a specific intent as one of the elements of the crime. It is not a defense to general-intent crimes. People v. Harkey, 69 Ill.App.3d 94, 96, 25 Ill. Dec. 487, 386 N.E.2d 1151, 1153 (1979). Aggravated battery is "a crime of general, not specific, intent." People v. Leppert, 105 Ill.App.3d 514, 516, 61 Ill. Dec. 84, 434 N.E.2d 21, 23 (1982). Thus, defense counsel argued, and the jury weighed, a theory of innocence that does not exist under the law. The trial judge's refusal to enter a judgment of acquittal based upon a nonexistent defense was decidedly correct.
Were we inclined to pay heed to counsel's continued reliance upon voluntary intoxication as a means to innocence, we would strongly disagree with the contention that the record is devoid of evidence to establish that Rodgers knew what he was doing. All of the evidence in this case supports an opposite conclusion.
We are sure that alcohol played a significant role in the commission of this crime. It no doubt rested enough brain cells to remove normal inhibitions and diminish any sense of human decency, something we are certain Rodgers must possess. We would like to believe that the behavior exhibited would not have occurred if he was in a sober condition. That being said, everything that Rodgers did points to deliberate and purposeful behavior indicative of the fact that he knew what he was doing. Upon his arrival at the club, he procured a choice parking spot. He did not drive through the cones that marked the reserved parking area. He stopped his Suburban and left it running. He removed enough of the cones to provide a path for him to travel, after which he proceeded to park his vehicle. When his actions drew a confrontation with security guards, he defiantly exited his vehicle, but not before he reached for his service revolver and carefully concealed it in the small of his back. He tried to assert his station in life to pull rank over the parking restrictions and dress code. When that did not work, he showed an aggressive bent to use force in order to get his way. After being sent to the pavement by a hard right hand, he immediately armed himself for a renewed encounter. He entered the club with a posture that telegraphed everyone that he was ready for gunplay. Because Sylvester ran from sight, he singled out Johnson, the other security guard, as his prey for retaliation. When he vented his drunken anger by shooting Johnson, he did not shoot randomly. With both hands on his pistol to steady his aim, he targeted the left leg. He clearly wanted to inflict pain rather than kill. While his sodden brain certainly lacked any conscience, it still harbored the capacity to act consciously. Rodgers knew what he was doing. He knew that it was *357 wrong. Because of the alcohol in his system, he simply did not care about the consequences.
The expert testimony that defense counsel employed merely stated an obvious truth that anyone on the jury could understand without expert opinion. The consumption of alcohol in large quantities will definitely affect a person's perception and judgment. In all probability, that is why this crime occurred. It is why a lot of crimes occur. However, it never has excused and it never will excuse shooting someone in the leg.
In a related argument, Rodgers asks us to grant a new trial based upon the prosecutor's improper closing argument. Since the prosecutor's remarks tried to dissuade the jury from accepting the notion that Rodgers should be acquitted because of his voluntary intoxication, Rodgers' argument on appeal must fail. While the prosecutor's closing argument may have diminished the chance of an acquittal because of intoxication, it could not possibly have prejudiced Rodgers from achieving a just result. An acquittal based upon voluntary intoxication would have been a miscarriage of justice, the result being contrary to the law of this state.
To whatever extent a defendant is entitled to fair argument over a question of guilt or innocence that lacks legal efficacy, the prosecutor's argument was fair enough. Defense counsel argued that Dr. Ullah had concluded that Rodgers' judgment was "definitely suspended." The prosecutor rebutted with an argument that Dr. Ullah had concluded that Rodgers' judgment was "possibly suspended." Dr. Ullah did not reach either conclusion. She merely acknowledged that given the level of Rodgers' blood-alcohol concentration, his perception and judgment would definitely be affected. She also testified that many variables would enter into a measure of mental impairment. Of the two misstatements, the State's version is closer to the message that her testimony actually conveyed. Moreover, the jurors were instructed about closing arguments, any misstatements of the evidence made during them, and their responsibility to determine what the evidence presented. No error occurred.
For the reasons stated, we affirm.
Affirmed.
WELCH and GOLDENHERSH, JJ., concur.
NOTES
[1] At the time of the trial, we still recognized a narrowly defined affirmative defense to criminal culpability, where voluntarily induced intoxication was so extreme to suspend the power of reason and render someone incapable of forming a specific intent that constituted an element of the particular charged offense. 720 ILCS 5/6-3 (West 1998). Effective January 1, 2002, Illinois no longer recognizes voluntary intoxication as an excuse for criminal conduct. 720 ILCS 5/6-3 (West Supp.2001).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/5902085/
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OPINION OF THE COURT
Kassal, J.
At approximately 11:15 p.m. on November 19, 1984, Police Officers Joseph Hamilton, Kenneth Donohue and Jeffrey Tim-merman, members of the New York Police Department Taxi Robbery Squad, were in plain clothes and patrolling in an unmarked vehicle heading north on Bradhurst Avenue in upper Manhattan. At 148th Street, the police vehicle, driven by Officer Hamilton, passed a southbound taxicab driven by Juan Brea and containing defendant and two other black male passengers, Lamont Victor Townes and codefendant Wayne Johnson. Despite the absence of any traffic law violation or cab driver distress signal, such as the use of high beams (see, People v Davis, 130 AD2d 268) the police officers decided to make a U-turn and follow the taxicab.
As they followed from a distance of 2 to 3 car lengths, the passenger sitting in the left rear seat, identified at trial as the defendant, looked in the direction of their vehicle and then conversed with the other passengers. The officers next observed the middle passenger, Townes, raise his shoulders and appear to place his arms behind his back. Finally, the passenger seated in the far right of the passenger compartment, codefendant Johnson, leaned forward and momentarily disappeared from view. Based upon these observations, the police officers determined to stop the cab, and signaled the driver to pull over by placing a revolving red turret light on their dashboard. Before leaving the police vehicle, the officers further decided to remove the taxicab passengers without first making inquiry of them or the driver.
In accordance with their plan, the three officers approached and surrounded the stopped taxi, Timmerman with gun drawn. Standing at the left rear door, Hamilton directed the passengers to exit via the right rear door, which Donohue held opened. As defendant and the others began to move out, Hamilton observed the handle of a revolver protruding from between the bottom and back seat cushions, near where defendant and Townes had been sitting. When all three passengers were outside, Hamilton entered the taxi and seized a loaded .44 caliber Magnum revolver, a speed loader containing .44 caliber ammunition, and a magazine loaded with .9 milli*4meter bullets. On the right side of the back seat, Officer Donohue found a fully loaded .9 millimeter semiautomatic pistol under the passenger seat vacated by codefendant Johnson.
Defendant, Townes and Johnson were arrested and, upon search of their persons, one tinfoil of cocaine each was found on defendant and Townes and two tinfoils of the drug were found on Johnson. In addition, defendant possessed a .44 caliber bullet. All three were indicted for two counts of criminal possession of a weapon in the third degree and one count of criminal possession of a controlled substance in the seventh degree.
Prior to trial, defendant moved to suppress the physical evidence. The motion was denied without a hearing on or about March 22, 1985, on the ground that defendant lacked standing to challenge the stop and ensuing search of the taxicab.
As the People concede on appeal, the holding in People v Millan (69 NY2d 514) decided subsequent to the summary denial of defendant’s suppression motion, establishes that a taxicab passenger has standing to contest the stop of the vehicle in which he rides. (See also, People v Fore, 131 AD2d 329; People v Madera, 125 AD2d 238.) In addition, such passenger has standing to contest a search which yields contraband leading to possession charges based upon the statutory presumption set forth in Penal Law § 265.15 (3). (People v Millan, supra, at 516.)
Since defendant falls squarely within the Millan criteria, lack of standing does not bar his challenge to the police actions, and the merits of the suppression issue may be addressed. While it is our usual practice to remand cases in this post -Millan posture for a hearing (see, e.g., People v Martin, 135 AD2d 355; People v Fore, supra), a review of the transcript reveals that facts sufficient to resolve the suppression issue were developed at trial. These facts, derived from testimony given for the prosecution by the three police officers involved in the stop and search of the taxicab, so favor suppression that we exercise our fact-finding power in the interest of justice and judicial economy (see, CPL 470.15 [1], [6]; People v Carter, 63 NY2d 530, 536; People v Kidd, 76 AD2d 665, 667, lv dismissed 51 NY2d 882) and conclude that defendant’s motion must be granted and the indictment dismissed.
In taking this unusual step, we note that cases prohibiting *5the Appellate Division from relying upon trial evidence to determine the propriety of a suppression court’s ruling address themselves to circumstances in which the appellate court upholds a denial of defendant’s motion on the basis of such evidence. (See, e.g., People v James, 67 NY2d 662, 664; People v Wilkins, 65 NY2d 172, 180; People v Dodt, 61 NY2d 408, 417; People v Gonzalez, 55 NY2d 720, 721-722, cert denied 456 US 1010.) We face no such restriction here, where our ruling is to grant the suppression motion. Moreover, since our determination is based upon a review of the events leading to the stop and search as described by the three police officers, the prosecution was accorded a full opportunity to be heard on this issue and, indeed, has produced the very record upon which we base our ruling. (See, People v Havelka, 45 NY2d 636, 643; People v Wilkins, supra, at 180.)
Turning, then, to the merits of defendant’s claim, we find that a reasonable view of the relevant evidence fails to provide justification for the stop of the taxicab. Prior to the stop, the police observed neither a violation of the traffic laws nor any signs of distress on the part of the cab driver. (See, People v Castro, 129 AD2d 406; People v Davis, supra.) Rather, the sole predicate for the full-blown gunpoint seizure was the officers’ observations of certain physical motions on the part of the passengers. It has been held, however, that in the absence of circumstances suggesting criminal activity, otherwise innocuous behavior, such as looking in the direction of police officers, will not justify a stop (People v Carrasquillo, 54 NY2d 248), and that a stop may not be premised upon nothing more than hand motions made by occupants of vehicles. (People v Mestey, 61 AD2d 447, 450.)
Indeed, even where a vehicle is, or is about to be, lawfully stopped for a traffic infraction, motions susceptible to innocent interpretations, such as head turning and reaching under the seat, will not entitle the police to take the additional measure of searching the interior of the car once it is stopped, unless the movements are either accompanied by some indication of criminal activity or provide a reasonable basis for the police to fear danger. (See, People v McCready, 121 AD2d 897, appeal dismissed 68 NY2d 981; People v Guzman, 116 AD2d 528.) No such circumstances are present here.
Accordingly, the appeal from the judgment, Supreme Court, New York County (Stanley Sklar, J.), rendered January 10, 1986, convicting defendant after a jury trial, of criminal possession of a weapon in the third degree (two counts) and *6criminal possession of a controlled substance in the seventh degree, and sentencing him, as a predicate violent felon, to concurrent terms of from ZVi to 7 years’ imprisonment and 1 year, respectively, should be reversed, on the law and in the exercise of discretion, and the indictment dismissed.
Murphy, P. J., Ross, Carro and Ellerin, JJ., concur.
Judgment, Supreme Court, New York County, rendered on January 10, 1986, unanimously reversed, on the law and in the exercise of discretion, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902086/
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OPINION OF THE COURT
Rosenberger, J.
Plaintiff AT&T Information Systems, Inc. (Information Systems), a Delaware corporation licensed to do business in this State, was formed in 1982 to sell and lease telephones and related equipment, pursuant to the Federal Communications Commission (FCC) directives effecting deregulation of the telephone and telecommunications industry. Plaintiff sought, and won, a judgment declaring Laws of 1984 (ch 895) null and void, insofar as it purports to tax certain of plaintiff’s property, on the ground that it violates the equal protection guarantees of both the United States and New York Constitutions. Information Systems contends, and Supreme Court agreed, that chapter 895 arbitrarily classifies its customer premises equipment (CPE) as real property and imposes a tax thereon, while leaving similar property, owned by taxpayers who in all relevant respects are indistinguishable from plaintiff, untaxed.
*9Information Systems is the wholly owned subsidiary of American Telephone & Telegraph Company (AT&T) which, prior to deregulation, provided 85% of the telephone service in the United States through its network of affiliated companies known as the Bell System. Until 1967, telephone companies were required to provide "end-to-end” or "bundled” service to subscribers who were prohibited from purchasing discrete components of the service from different suppliers. Only equipment supplied by the telephone company could be attached or connected to telephone company facilities and telephone rates reflected the cost, including maintenance, of using the equipment necessary to originate, transmit and receive calls.
The lines, wires, poles and "appurtenances” which made up the integrated telephone system were classified as real property for which the telephone company was taxed pursuant to RPTL 102 (12) (d) even though, under common law, the equipment was a removable fixture which would be classified as personalty (Matter of New York Tel. Co. v Ferris, 257 App Div 415 [4th Dept 1939], affd 282 NY 667 [1940]; Matter of Crossman Cadillac v Board of Assessors, 60 AD2d 842 [2d Dept 1978], affd 44 NY2d 963), and even though it was located on the customer’s premises (Matter of New York Tel. Co. [Canough] 264 App Div 937 [4th Dept 1942], affd 290 NY 537 [1943]).
Beginning in 1969, subscribers were permitted to connect equipment purchased or leased from nontelephone companies to telephone company facilities. The change in ownership of the CPE raised an issue as to whether subscriber-owned equipment was taxable as real property as it had been when owned by the telephone company. In Matter of Crystal v City of Syracuse (47 AD2d 29 [1975]), the Fourth Department held, and the Court of Appeals affirmed (38 NY2d 883 [1976]), that privately owned telephones and equipment were not real property under RPTL 102 (12) (d). Although this provision does not refer to ownership of the subject property, because at the time of its enactment subscribers were not permitted to use their own telephone equipment, the court reasoned that the tax distinction based on ownership was legitimate in view of the legislative intent to expand the definition of realty with respect to utility property (supra, 47 AD2d, at 31). (See also, Matter of Manhattan Cable TV Servs. v Freyberg, 49 NY2d 868, 869 [1980]; Matter of Quotron Sys. v Irizarry, 48 NY2d *10795, 797 [1979]; Matter of Crossman Cadillac v Board of Assessors, supra, 44 NY2d, at 964.)
Since 1969, the telephone industry has been restructured by a series of FCC rulings and the settlement of a Federal antitrust action against the Bell System Companies. The FCC concluded in 1978 that CPE was essentially no different from other types of electrical appliances (see, Implications of Tel. Indus.’s Primary Instrument Concept, 68 FCC2d 1157 [1978]) and, thereafter, it ordered that all CPE be provided on a deregulated, competitive basis separate and distinct from regulated telephone service. (See, Report & Order, 95 FCC2d 1276 [1983].)
Deregulation of CPE was ordered in two stages: "new” CPE (i.e., equipment that was neither in inventory nor installed on a customer’s premises) became available for sale or lease beginning in 1983; "embedded” CPE (i.e., equipment that was in inventory or installed on a customer’s premises as of January 1, 1983) became available beginning in 1984. The Bell System’s operating companies, which were engaged in regulated monopoly activities, were required to form a separate, nonoperating subsidiary to sell or lease their CPE if they wished to participate in the deregulated CPE market. Thus, plaintiff was formed as a vehicle through which AT&T could market its CPE.
Pursuant to the consent judgment entered in the antitrust action, AT&T was also required to divest itself by January 1, 1984, of the 22 local operating subsidiaries which formed the Bell System (United States v American Tel. & Tel. Co., 552 F Supp 131 [D DC 1982], affd sub nom. Maryland v United States, 460 US 1001 [1983]; United States v Western Elec. Co., 569 F Supp 1057 [D DC], affd sub nom. California v United States, 464 US 1013 [1983]). The FCC ordered the operating subsidiaries to transfer all embedded CPE to AT&T which was then permitted to transfer this CPE to Information Systems for sale or lease to telephone subscribers. Embedded CPE could not be removed during 1984 unless the customer so requested and plaintiff was required to maintain this CPE during that time.
Although the FCC had permitted immediate deregulation of new CPE, it determined that rate regulation for embedded CPE should continue for a two-year transition period to pre*11vent abrupt price increases.* Moreover, the transfer of CPE owned by independent telephone companies which were not part of the Bell System to separate marketing subsidiaries was deferred until December 31, 1987 (see, Procedures for Implementing Detarrifing, 99 FCC2d 354 [1984]).
These changes in the telecommunications industry threatened a substantial loss of revenue to New York State inasmuch as the embedded CPE, taxable as real property when owned by the telephone utility, would become untaxed personalty in the hands of a nonutility. New York City, for example, received approximately $14,500,000 in revenue annually from the embedded CPE which had a taxable assessed value of $160,000,000. As an interim measure to prevent this revenue loss, and until the economic and fiscal consequences of deregulation could be evaluated the State Legislature enacted Laws of 1984 (ch 895). The new law provided that telephone equipment which was taxable in 1983 and thereafter transferred to an owner engaged in the business of selling or leasing such equipment, "notwithstanding whether such transferee is considered a utility, shall be deemed taxable” pursuant to RPTL 102 (12) (d).
Information Systems refused to pay defendant the real property tax assessed on its embedded CPE and brought this action challenging the validity of chapter 895. Plaintiff also sought certification of a defendant class comprising all of the State’s real property tax assessing units. However, Supreme Court, which granted plaintiff’s request for declaratory relief, refused to certify the defendant class, relying "on the integrity of local taxing units to abide by judicial rulings”. The State of New York was granted leave to intervene in defendant’s appeal (CPLR 1012 [b]; Executive Law § 71), and plaintiff has cross-appealed from that portion of the judgment which denied certification of the defendant class. We agree with the findings and conclusions of Supreme Court and would affirm the judgment now before us.
The Legislature, in adopting chapter 895, recognized that *12section 102 (12) (d) would no longer apply to embedded CPE in the hands of Information Systems, a nonutility. Chapter 895 expands the definition of taxable realty by adding a new, dual classification based upon the status of the property (embedded CPE which was taxable as utility property in 1983) and the owner’s status as a vendor or lessor of such property. Plaintiff, which in 1984 was the only vendor-lessor of this former utility property, contends that this new classification arbitrarily discriminates by treating Information Systems differently from all other owners of such property and from all other CPE suppliers.
While the State enjoys very broad discretion in the exercise of its taxing power (Allied Stores of Ohio v Bowers, 358 US 522, 526 [1959]; Nashville, Chattanooga & St. Louis Ry. v Browning, 310 US 362, 368-369 [1940]; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529, 535 [1978]; Shapiro v City of New York, 32 NY2d 96, 103 [1973]), the constitutional guarantee of equal protection under the law forbids invidious discrimination or palpably arbitrary distinctions among taxpayers (Lehnhausen v Lake Shore Auto Parts Co., 410 US 356, 360 [1973]; Foss v City of Rochester, 65 NY2d 247, 256-257 [1985]). Although the Equal Protection Clause imposes no strict rule of equality, a tax classification “must rest upon some ground of difference having a fair and substantial relation to the object of the legislation” (Royster Guano Co. v Virginia, 253 US 412, 415 [1920], cited in Allied Stores of Ohio v Bowers, supra, at 527). Thus, a statutory classification may discriminate based upon a reasonable distinction or policy difference (supra, at 528; Trump v Chu, 65 NY2d 20, 25 [1985]).
Defendant maintains that chapter 895 is a valid legislative enactment designed to temporarily preserve the status quo. Perpetuation of the tax after transfer of the property to plaintiff was justified, according to defendant, because, notwithstanding the change of ownership, the function of the property remained unchanged. The embedded CPE owned by Information Systems remained “de facto part of an end-to-end telephone system”.
It is, however, undeniable that the embedded CPE purchased from plaintiff by a telephone subscriber is also part of an end-to-end telephone system, as is the new telephone equipment leased by a subscriber from any one of plaintiff’s competitors. Yet in neither instance is such property, which is functionally indistinguishable from plaintiff’s property, subject *13to taxation. The issue then is whether the statutory discrimination between owners of functionally identical property is palpably arbitrary or reasonably related to achievement of a legitimate State purpose.
In Matter of Crystal v City of Syracuse (47 AD2d 29, supra), the court held discrimination based on the property owner’s status reasonable in light of the legislative objective of RPTL 102 (12) (d) to expand the definition of taxable utility property. This difference in tax treatment was warranted, the court explained, because "[t]he telephone company is liable for taxes assessed upon real property, not only as such property is traditionally conceived but also with respect to the various components which make up the supply system and the special franchises required for the system’s operations” (supra, 47 AD2d, at 31).
Information Systems, however, enjoys no special franchise which would justify treating its property as realty under the expanded definition of section 102 (12) (d). Neither plaintiff nor its parent company is engaged in regulated monopoly activity. As Justice Stecher noted in his well-reasoned opinion, "the imposition of certain restrictions on Information Systems to protect the market place from the possibility of sudden price increases during a transition period is not comparable to the pervasive regulation by the FCC and state and public service commissions over a common carrier utility”. As a regulated monopoly, the telephone company derived special benefits from its exclusive ownership of all the components of telephone service. It does not appear that plaintiff enjoys any particular benefits which would warrant treating its property differently from that of other CPE owners or vendors.
Defendant contends that Information Systems acquired a dominant market position when the Bell System Companies’ embedded CPE was transferred to it. Although this transfer gave Information Systems a very substantial market share, Information Systems is but one of many suppliers in a highly competitive market which includes a myriad of firms, among them such large corporations as Sears, GTE and IBM. Unlike the telephone utility which may pass on to the consumer real property assessments on company-owned equipment (Matter of Crystal v City of Syracuse, supra, at 36 [Cardamone, J., dissenting]), Information Systems cannot do so in a competitive market for comparable, if not completely fungible products. As one competitor among many, plaintiff derives no special benefit from ownership of this CPE which would justify an *14assessment on its property exclusively. Chapter 895 is, therefore, arbitrary in imposing a discriminatory burden on plaintiff.
Inasmuch as the Attorney-General has appeared, as required by Executive Law § 71, and has had an opportunity to be heard in this action to determine the constitutionality of Laws of 1984 (ch 895), we can see no reason for certification of the defendant class.
Accordingly, the judgment of Supreme Court, New York County (Stecher, J.), entered December 30, 1986, should be affirmed, without costs.
Kupferman, J. P., Ross, Ellerin and Smith, JJ., concur.
Order and judgment (one paper) of the Supreme Court, New York County, entered on December 30, 1986, unanimously affirmed, without costs and without disbursements.
The transitional plan imposed a nationwide price ceiling for each type of embedded CPE. Information Systems was free to charge any price below the national ceiling. If, however, it wished to increase prices which were below that ceiling it could only do so in scheduled increments over the two-year period. In New York, where the regulated rates for embedded CPE exceeded the maximum, the prices offered by Information Systems beginning in 1984 were lower than the rates charged for this equipment by New York Telephone in 1983.
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01-03-2023
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01-13-2022
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Egan Jr., J.
Cross appeals from an order of the Supreme Court (Kramer, J.), entered October 3, 2011 in Schenectady County, which, among other things, partially granted defendants’ motions for summary judgment dismissing the complaint.
Plaintiff Joseph A. Melino is the president of plaintiff Calabrese Bakeries, Inc., a wholesale and retail bakery distributor. Calabrese began as a small retail operation in Rensselaer County that sold baked goods provided by defendant Rockland Bakery, Inc. In June 2002, Melino and Rockland’s president, defendant Ignazio “Salvatore” Battaglia, entered into a contract, pursuant to the terms of which the parties agreed to form a new corporation, plaintiff B.M. Baking Company, Inc., which would be headquartered on Fuller Road in Albany County. Although poorly drafted, it appears from the contract that Melino and Battaglia envisioned that B.M. Baking would act as the exclusive wholesale and retail distributor of Rockland’s baked goods within a defined geographic area. Upon payment of the buy-in fee by Rockland, Calabrese and Rockland each would have a 50% ownership interest in the corporation.1
Approximately six months after the execution of this agree*1034ment, Melino was incarcerated on unrelated charges, and defendant Clark J. Seeley apparently stepped in to manage B.M. Baking’s operations.2 Shortly thereafter, according to Melino, Seeley set up various corporate entities, including defendant WTF Bakery, Inc. and defendant Portside Distributors, Inc., appropriated moneys and assets otherwise belonging to Calabrese and/or B.M. Baking3 and, in conjunction therewith, effectively terminated the business relationship forged by Calabrese and Rockland. In early 2004, Rockland petitioned for judicial dissolution of B.M. Baking pursuant to Business Corporation Law § 1104 and, when B.M. Baking failed to appear or answer, the petition was granted. Subsequent efforts to suspend or annul the dissolution proved unsuccessful (see Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080 [2d Dept 2011]; Matter of Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 83 AD3d 1060 [2d Dept 2011]).
After Melino’s release from prison, plaintiffs commenced this action setting forth 14 causes of action4 sounding in, among other things, fraudulent inducement, breach of contract, breach of fiduciary duty and prima facie tort. Following joinder of issue and discovery, Battaglia, Rockland and defendant Rockland Bakery NY, Inc. (hereinafter collectively referred to as the Rockland defendants) moved for summary judgment dismissing the complaint, and Seeley, WTF and Portside, together with defendants C&C Specialties, Inc. and Joslen Developers, LLC., separately moved for similar relief. Plaintiffs opposed the respective motions contending, among other things, that they should be held in abeyance pending further discovery and the Second Department’s resolution of the then-pending appeals regarding the judicial dissolution. Supreme Court denied defendants’ motions as to the first, second and third causes of action alleging fraudulent inducement, breach of contract and conversion, but granted the motions as to the balance of the complaint, concluding that the remaining claims were either meritless or duplicative. Additionally, Supreme Court held that plaintiffs’ claims for damages would be limited to those incurred prior to *1035the dissolution of B.M. Baking in March 2004. These cross appeals ensued.5
Initially, to the extent that plaintiffs take issue with Supreme Court’s resolution of their January 2008 motion to compel discovery, we note that plaintiffs, by their own admission, did not perfect their appeal from Supreme Court’s resulting order. Additionally, “an appeal from ... an intermediate order [such as the one at issue here] does not bring up for review prior nonfinal orders” (Abasciano v Dandrea, 83 AD3d 1542, 1543 [2011], citing Baker v Shepard, 276 AD2d 873, 874 [2000]). Accordingly, plaintiffs’ argument on this point is not properly before us.
Plaintiffs’ related claim—that Supreme Court erred in failing to hold defendants’ motions for summary judgment in abeyance pending further discovery—is without merit. While it is true that a motion for summary judgment may be “denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant or a codefendant” (Metichecchia v Palmeri, 23 AD3d 894, 895 [2005]), plaintiffs had ample time and opportunity to do so here (see Judd v Vilardo, 57 AD3d 1127, 1131 [2008]). Moreover, “a trial court has broad discretionary power in controlling discovery and disclosure, and only a clear abuse of discretion will prompt appellate action” (Premo v Rosa, 93 AD3d 919, 920 [2012] [internal quotation marks and citations omitted]). We discern no abuse of that discretion in this matter.
Nor can we say that Supreme Court erred in concluding that plaintiffs’ damages, if any, must be limited to those incurred prior to the March 19, 2004 judicial dissolution of B.M. Baking.6 Contrary to plaintiffs’ assertions, the underlying contract does not evidence the parties’ intent to create a joint venture between Calabrese and Rockland “in which the corporate entity, [i.e., B.M. Baking], was a mere conduit” for the distribution of goods (Rinaldi v Casale, 13 AD3d 603, 605 [2004]), nor does it demonstrate that Calabrese and Rockland retained certain rights that were “independent of and extrinsic to the corporate entity” formed thereunder (Sagamore Corp. v Diamond W. *1036Energy Corp., 806 F2d 373, 379 [1986] [internal quotation marks and citation omitted]). As such, this matter falls within the general rule that where the parties chart a “course “to conduct business through a corporation, . . . they are not at one and the same time joint venturers and stockholders, fiduciaries and nonfiduciaries, personally liable and not personally liable” (Weisman v Awnair Corp. of Am., 3 NY2d 444, 449 [1957]; accord D’Orazio v Mainetti, 24 AD3d 915, 917 [2005]; see generally Lombard & Co., Inc. v De La Roche, 46 AD3d 393, 393-394 [2007], lv dismissed 11 NY3d 782 [2008]; compare Sagamore Corp. v Diamond W. Energy Corp., 806 F2d at 379). Accordingly, the limitation imposed by Supreme Court will not be disturbed.
We now turn to the specific causes of action set forth in plaintiffs’ complaint. The first cause of action sounds in fraudulent inducement and essentially is based upon a misrepresentation allegedly made by Battaglia and/or Rockland “that certain corporate, institutional and governmental] entities . . . would become customers of [B.M. Baking].” While it is true that “a misrepresentation premised directly on the same actions giving rise to a breach of contract does not give rise to a separate cause of action for fraud” (Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1129 [2011]), we are satisfied that the conduct alleged in plaintiffs’ first cause of action “is sufficiently discrete from that underlying [plaintiffs’] breach of contract claim to state a separate cause of action” (id. at 1129). More to the point, in view of the conflicting proof contained in the voluminous record before us, including Melino’s examination before trial testimony and Battaglia’s affidavits, we agree with Supreme Court that questions of fact preclude an award of summary judgment as to this cause of action.
With respect to plaintiffs’ second cause of action, wherein plaintiffs allege that Battaglia and/or Rockland breached the underlying contract by violating the exclusive distribution clause contained therein and charging B.M. Baking “more than the lowest wholesale price charged to other wholesale customers,” the Rockland defendants argue only that Supreme Court should have dismissed this claim due to plaintiffs’ inability to prove damages. We disagree. In light of Melino’s incarceration, which necessarily limited his knowledge of B.M. Baking’s daily operations and his access to relevant corporate records, as well as the limited business records (invoices, receipts, tax returns, etc.) apparently still remaining, plaintiffs indeed may have a difficult time proving the damages alleged. However, Supreme Court correctly concluded that—in view of the conflicting *1037documentary evidence and the credibility issues raised by Melino and Battaglia’s disparate accounts of what actually transpired here—resolution of this particular cause of action must await a trial.
We reach a similar conclusion regarding plaintiffs’ third cause of action alleging, among other things, that Seeley and the Rockland defendants converted and misappropriated “assets, funds, customer accounts and business opportunities]” otherwise properly belonging to plaintiffs (see generally Salatino v Salatino, 64 AD3d 923, 925 [2009], lv denied 13 NY3d 710 [2009] [elements of conversion]). Again, while plaintiffs indeed may find it difficult to specifically identify, trace and document the property allegedly appropriated, the confusing and conflicting proof in the record precludes an award of summary judgment as to this cause of action.
Plaintiffs’ remaining claims—with one exception—do not warrant extended discussion. Plaintiffs’ fourth cause of action is either a rehash of the previously stated conversion claim or an attempt to collaterally attack the long-resolved judicial dissolution of B.M. Baking, and plaintiffs’ fifth cause of action seeking an accounting, together with their sixth cause of action (fraudulent representation), eighth cause of action (conversion), tenth causes of action (violation of Business Corporation Law § 720 and breach of fiduciary duty) and eleventh cause of action (breach of contract) are, as Supreme Court appropriately concluded, duplicative of other causes of action contained in the complaint. Plaintiffs also failed to allege—much less demonstrate—the elements necessary to either impose a constructive trust (ninth cause of action) (see generally Enzien v Enzien, 96 AD3d 1136, 1137 [2012]) or maintain a cause of action for prima facie tort (twelfth cause of action) (see generally Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1152-1153 [2012], lv denied 19 NY3d 801 [2012]). Notably, as to this latter cause of action, plaintiffs failed to allege or establish that defendants’ sole motivation for the offending conduct was malevolence (see White v Ivy, 63 AD3d 1236, 1239 [2009]). Finally, plaintiffs’ claim for punitive damages (thirteenth cause of action), which cannot be maintained as an independent cause of action (see Brandle Meadows, LLC v Bette, 84 AD3d 1579, 1579 n [2011]), must fail. “Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights” (Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994] [citation omitted]).
We do, however, find merit to plaintiffs’ claim that Supreme *1038Court erred in granting summary judgment dismissing their seventh cause of action for breach of fiduciary duty.7 The case law makes clear that “officers and directors of a corporation stand in a fiduciary relationship to the corporation and owe their undivided and unqualified loyalty to the corporation” (Howard v Carr, 222 AD2d 843, 845 [1995]; accord Busino v Meachem, 270 AD2d 606, 609 [2000]; Blank v Blank, 256 AD2d 688, 694-695 [1998]). Hence, officers and directors are not “permitted to profit personally at the expense of the corporation^ and] . . . conduct that cripples or injures the corporation is impermissible” (Howard v Carr, 222 AD2d at 845 [citation omitted]). Similarly, “an employee is prohibited from acting in any manner inconsistent with his or her employment and must exercise good faith and loyalty in performing his or her duties, and may not use his or her principal’s time, facilities or proprietary secrets to build [a] competing business” (Mega Group v Halton, 290 AD2d 673, 675 [2002] [internal quotation marks and citations omitted]).
Although Battaglia averred that he “did not appear for any meeting wherein directors or officers [of B.M. Baking] were elected” and Seeley, in turn, asserted that he was not an employee of either Calabrese or B.M. Baking, the documentary evidence tendered by plaintiffs—including corporate resolutions/ minutes naming Battaglia as a director and vice- president of B.M. Baking and two documents wherein Seeley identified himself as the manager of “Calabrese Rockland Baker[y]”—was sufficient to raise a question of fact on this point. Accordingly, Supreme Court’s order must be modified to the extent of denying defendants’ motions for summary judgment dismissing plaintiffs’ seventh cause of action, thereby permitting plaintiffs to go forward with respect to their breach of fiduciary duty claim against Battaglia and Seeley. The parties’ remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants’ motions for summary judgment dismissing the seventh cause of action; motions denied to that extent; and, as so modified, affirmed.
. The contract provided that Calabrese and B.M. Baking would accept “product for payment” until the agreed-upon sum ($175,000) was paid in full.
. The parties have widely divergent accounts as to Battaglia’s awareness of Melino’s legal troubles prior to the execution of their agreement and/or the circumstances under which Seeley assumed his management responsibilities.
. According to Melino, Rockland had not paid the buy-in fee at this point; therefore, to Melino’s analysis, Calabrese retained a 100% interest in B.M. Baking.
. Two of the causes of action are each mistakenly denominated as the tenth cause of action.
. Plaintiffs’ subsequent motion for a stay pending appeal was denied by this Court.
. A corporation’s legal existence terminates upon dissolution and, as such, it “is prohibited from carrying on new business and does not enjoy the right to bring suit in the courts of this state, except in the limited respects specifically permitted by statute” (Moran Enters., Inc. v Hurst, 66 AD3d 972, 975 [2009] [citation omitted]; see Business Corporation Law §§ 1005, 1006).
. The complaint, to our reading, alleges that both Battaglia and Seeley breached their fiduciary duty to B.M. Baking. Hence, to the extent that Supreme Court’s decision and resulting order suggest that this claim was brought against Battaglia alone, we disagree.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902088/
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OPINION OF THE COURT
Harvey, J.
At approximately 5:30 p.m. on July 28, 1986, defendant was seen driving a car in a very erratic manner. Two witnesses, Caryn Ely and Tammy Brick, observed defendant’s erratic driving and watched as she nearly hit some bicyclists. Ely and Brick followed defendant into a bar parking lot. Believing that defendant was intent on consuming alcoholic beverages at the tavern, Ely and Brick approached her, detecting a strong odor of alcohol. When Ely and Brick attempted to -speak to defendant, she reacted belligerently. Ely and Brick informed defendant that they were going to call the police. Defendant then backed the car she was driving into a parked vehicle and left the scene.
The witnesses immediately called the State Police and Trooper Susan Andrews arrived at the scene within a matter of minutes. After receiving a description of defendant’s actions and being provided with the license plate number of the car defendant was operating, Andrews proceeded directly to defendant’s address. Upon arrival at defendant’s residence, Andrews spoke with defendant’s 14-year-old grandson, Jason Hoitinga, who was outside the residence and had been with defendant during the afternoon. Andrews testified that Hoitinga informed her that defendant had been drinking heavily, that he had been with her when she nearly hit the bicyclists and when she ran into the parked vehicle.
When Andrews asked Hoitinga where defendant was, he proceeded up an outside stairway. Andrews followed him. At the top of the stairs, he opened a door and spoke to defendant, who was in the room into which the outside door opened. At that point, Andrews stepped through the open door into the room and spoke to defendant. Defendant reacted by shouting at Andrews and attempting to physically attack her. A struggle ensued and the two women ended up outside on the landing at the top of the stairs. Andrews was subsequently aided and defendant was arrested. Defendant consented to a blood alcohol test, the results of which indicated that her blood alcohol level was .22%.
Defendant, who had been convicted less than a year earlier of driving while intoxicated, was charged with, inter alia, *17driving while intoxicated as a felony and operating a motor vehicle while she had .10% or more by weight of alcohol in her blood as a felony. Prior to trial, defendant moved to suppress the result of the blood alcohol test upon the ground that it was the fruit of an unlawful arrest. The motion was denied and, following a jury trial, defendant was convicted of the aforementioned felonies as well as reckless driving. Defendant was sentenced to five years’ probation and had her driving privileges in New York revoked. This appeal ensued.
Defendant contends that Andrews’ warrantless entry into her residence and the ensuing arrest violated her 4th Amendment right to be free from unreasonable searches and seizures. In the absence of probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the 4th Amendment (Payton v New York, 445 US 573).1 It is clear that probable cause to believe that a crime had been committed existed. Andrews had been informed by two witnesses of defendant’s erratic and dangerous driving. These witnesses had spoken to defendant and had observed her belligerent manner, noticed her slurred speech and detected a strong odor of alcohol. They, together with others, had seen defendant back into a parked vehicle and leave the scene without checking whether damage had occurred. Andrews had also spoken with defendant’s grandson, who was with defendant throughout the afternoon, and had been informed that defendant had been drinking heavily and had driven in the aforementioned manner.
Exigent circumstances may be found where relevant evidence is likely to be destroyed (see, People v Vaccaro,39 NY2d 468, 472; People v Henderson, 107 AD2d 469, 471). Here, there is little doubt that delay would have seriously impaired important evidence (see, Matter of Stark v New York State Dept. of Motor Vehicles, 104 AD2d 194, 197, affd 65 NY2d 720). In order to get an accurate reading of defendant’s blood alcohol level, it was essential that the test be administered as nearly as possible to the time she was operating the vehicle (cf., Vehicle and Trafile Law § 1194 [1] [requiring that tests be administered within two hours of arrest]). With the passage of time the body’s natural processes were destroying the evidence of defendant’s blood alcohol level. Further, once defen*18dant had entered her residence she could have consumed additional alcohol, thus making the result of any subsequent test of dubious validity (see, Matter of Stark v New York State Dept. of Motor Vehicles, supra, at 197).
A further factor in the exigent circumstances formula is the gravity of the underlying offense (Welsh v Wisconsin, 466 US 740). In Welsh v Wisconsin (supra), a case with similar facts to the one at bar, the United States Supreme Court found that an arrest in an individual’s home was unlawful. Significant in the court’s analysis was the fact that Wisconsin classified driving while intoxicated as merely a violation, with a maximum fine of $200 (supra, at 746). This State has taken a much more serious view of driving while intoxicated. A first offense is a misdemeanor punishable by up to one year in jail and a $500 fine (Vehicle and Traffic Law § 1192 [5]).2 Further, the courts of this State have repeatedly referred to the strong interest this State has in removing intoxicated drivers from its highways (see, e.g., People v Scott, 63 NY2d 518, 525; Matter of Quealy v Passidomo, 124 AD2d 955, 956-957, lv denied 69 NY2d 612; Matter of Stark v New York State Dept. of Motor Vehicles, supra).
The fact that important evidence was being lost and that this State has a strong interest in removing intoxicated drivers from its highways are not, by themselves, sufficient reason to justify this warrantless arrest. We emphasize that in cases such as this the court must, as County Court did, carefully scrutinize the specific facts and circumstances (see, United States v Martinez-Gonzalez, 686 F2d 93, 100; see also, Matter of Stark v New York State Dept. of Motor Vehicles, supra, at 198 [Mahoney, P. J., dissenting]). There is no per se rule authorizing warrantless arrests of suspected intoxicated drivers in their homes. Here, all the following factors, viewed cumulatively, are significant. Andrews’ entry into defendant’s residence was made during daylight hours (see, United States v Campbell, 581 F2d 22, 26, n 5; see generally, 5 Zett, NY Crim Prac [f 36.1). The manner of the entry was peaceful (see, Matter of Stark v New York State Dept. of Motor Vehicles, supra; see also, United States v Reed, 572 F2d 412, 424, cert denied sub nom. Goldsmith v United States, 439 US 913). Andrews merely stepped through a door which had been *19opened by defendant’s grandson, who was temporarily residing at the premises and who knew that Andrews was seeking to speak to defendant. Andrews was immediately confronted by defendant as she took a step into the residence; she did not wander throughout the house seeking defendant. It is also significant that, as previously discussed, there was strong evidence that the crime of driving while intoxicated, as well as other crimes, had been committed (see, Dorman v United States, 435 F2d 385, 392-393). Further, Andrews’ pursuit, while unable to fit within the legal definition of "hot pursuit” (see, Welsh v Wisconsin, supra, at 753), was nevertheless, as noted by County Court, at least "luke warm”. It covered in a matter of minutes a direct line from the eyewitnesses to the vehicle’s passenger to defendant. If Andrews had left defendant’s residence in order to obtain a warrant, a situation would have existed whereby defendant could have entered her car, yet another time creating a grave danger to the public. All these factors, together with the seriousness of the crime and the loss of evidence which was occurring, lead to the conclusion that County Court’s decision not to suppress the result of the blood alcohol test was correct.
. We note that County Court found the evidence insufficient to establish beyond a reasonable doubt that Andrews had been given consent to enter defendant’s residence.
. While a second offense constitutes a felony (Vehicle and Traffic Law § 1192), this cannot be considered in the absence of evidence that the arresting officer was aware that the suspect had a previous driving while intoxicated conviction (see, Welsh v Wisconsin, 466 US 740, 746, n 6).
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902090/
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OPINION OF THE COURT
Weinstein, J.
Our focus on the instant appeal is directed to the propriety of granting a preliminary injunction against a former employee barring the employee from soliciting, servicing or doing business with customers of his former employer in violation of the terms of an alleged employment agreement. We find that the employer in the instant case was not entitled to injunctive relief with the result that the plaintiffs motion for a preliminary injunction should have been denied.
*24The plaintiff Walter Karl, Inc., is a New York corporation engaged in the business of mailing list brokerage, package and mail insert brokerage and list management services. The plaintiff’s services are national in scope and are provided for the benefit of direct marketers who utilize the lists to ascertain the most likely customers for their goods and/or services. The list brokerage and management services aspect of the company assists customers in determining which lists are most appropriate for their use and arranges for the use of such lists, many of which are the property of other customers of the plaintiff. The package and mail insert brokerage division of the company exercises a similar function in arranging for the insertion of advertisements and solicitations in packages mailed and distributed by such entities as mail order houses.
In order to effectively manage its business and determine the best lists and advertising media for all of its clients, the plaintiff, at the time of the defendant’s employment, maintained computer lists along with historical and customer data. Its customers numbered approximately 2,000. The plaintiff alleges that the needs of each of its customers are confidential, as are the names, addresses and other information maintained by the company with respect to those customers.
The defendant’s employment with Walter Karl, Inc., commenced on or about November 4, 1974. He started as a mail room clerk and was employed in various capacities continuously through April 24, 1987, when he voluntarily resigned. At the time of his departure, the defendant was employed at will in the capacity of executive vice-president, package insert sales, at the annual salary of $350,000, plus benefits and bonuses.
During his tenure with the plaintiff, the defendant executed an employment agreement on or about December 2, 1982, which contained, inter alia, a provision prohibiting him from using, except in the course of his employment for the plaintiff, any information, documents or materials containing or relating to customer data or any materials, financial or otherwise, of the company which were of a confidential nature. The agreement further provided that upon leaving the plaintiff’s employment, the defendant would not take with him, without the prior written consent of an officer specifically authorized to act in that matter by the board of directors, any company information. The aforesaid agreement, referred to as a "Golden Parachute” inasmuch as it provided for continued *25executive compensation in the event of a change of ownership of the plaintiff corporation, was not to become operative unless and until there was a change in control of the company.
On or about September 22, 1986, the plaintiff sought to terminate all of the "Golden Parachute” agreements with its executives. The defendant claims to have met with Walter Karl, the company’s founder, majority shareholder, president and chief operating officer, and to have executed a termination and release of all rights and obligations contained in the employment agreement dated December 2, 1982.* At the same time, the defendant negotiated a new salary arrangement for the calendar year 1987, since he was no longer under contract to the company. The defendant offered to purchase the Package Insert Division of the plaintiff company from Walter Karl. His attempt, while unsuccessful, prompted a promotion for him to president of the subject division and a proposed five-year employment agreement. The defendant maintains that the fact that Walter Karl proposed the five-year employment agreement is evidence that he was cognizant, at that time, that the parties were no longer bound by the December 2, 1982 agreement.
In 1986, five executives of the plaintiff company, including the defendant, sought to acquire the company from its founder. The defendant thereafter withdrew from the acquisition. The company was ultimately acquired by the remaining four executives in December 1986. The defendant’s attempt to acquire the package and mail insert operations from the new owners was unsuccessful.
The defendant resigned from the plaintiff’s employment on or about April 24, 1987, to engage in a business substantially similar to that of Walter Karl, Inc. According to the plaintiff, the defendant took several company employees with him to his newly formed company, Specialized Marketing, Inc. (hereinafter SMI), and he also took lists of customers from the plaintiff’s records which he used in announcing the formation of his new business and to solicit customers therefor. The plaintiff further contends that some of the recipients of the defendant’s business announcement were customers of the plaintiff with whom the defendant had had little or no contact and whose names and addresses must have been garnered *26from computer lists which the plaintiff had developed over many years. Additionally, the defendant took with him some 16 to 20 confidential customer index cards maintained by the plaintiff pertaining to customers with whom the defendant had had regular contact. According to the plaintiff, three of its customers had canceled their previously placed orders with Walter Karl, Inc. in favor of doing business with the defendant’s new enterprise.
In addition to improperly using confidential information to solicit company customers and diverting preexisting orders to his own business, the defendant is charged with disloyalty to the plaintiff from the time he withdrew from the acquisition venture. Specifically, it is charged that the defendant’s new business was formed on or about February 2, 1987, at which time the defendant was still in the plaintiff’s employ and that the defendant’s productivity significantly decreased in the early months of 1987 as compared to his past performance.
Subsequent to the defendant’s April 24, 1987 resignation from Walter Karl, Inc., the plaintiff commenced the instant action seeking, inter alia, to enjoin the defendant from doing business with its customers.
Although one of the theories asserted by the plaintiff was that the defendant had breached a written employment agreement entered into by the parties in 1982, we note preliminarily that the validity of that agreement constitutes a highly disputed issue of fact and, as such, cannot be the basis for injunctive relief (see, Newco Waste Sys. v Swartzenberg, 125 AD2d 1004, 1005; Family Affair Haircutters v Detling, 110 AD2d 745, 747). Moreover, it is clear from the record that the Supreme Court did not grant the plaintiff’s motion on this basis. Rather, the court’s granting of the preliminary injunction was based upon (1) the alleged breach by the defendant of his fiduciary duty to the plaintiff in the sense that the defendant, while he was still in the plaintiff’s employ, purportedly established and engaged in a business which was in direct competition with the plaintiff, and (2) the defendant’s use of the plaintiff’s allegedly confidential customer list.
It is a well-settled tenet that in order to prevail on a motion for a preliminary injunction, the movant has the burden of demonstrating (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the movant’s position (see, Grant Co. v Srogi, 52 NY2d 496, *27517; Family Affair Haircutters v Detling, supra, at 747; Gambar Enters. v Kelly Servs., 69 AD2d 297, 306). Viewed within this framework, we find that it was an abuse of discretion to grant the plaintiff’s motion for a preliminary injunction.
It is fundamental that absent a restrictive covenant not to compete, an employee is free to compete with his or her former employer unless trade secrets are involved or fraudulent methods are employed (see, Reed, Roberts Assocs. v Strauman, 40 NY2d 303, rearg denied 40 NY2d 918; Catalogue Serv. v Henry, 107 AD2d 783; accord, Zurich Depository Corp. v Gilenson, 121 AD2d 443, 444). "Knowledge of the intricacies of a business operation does not necessarily constitute a trade secret and absent any wrongdoing it cannot be said that a former employee 'should be prohibited from utilizing his knowledge and talents in this area’ ” (Catalogue Serv. v Henry, supra, at 784, quoting from Reed, Roberts Assocs. v Strauman, supra, at 309). Nor will trade secret protection attach to customer lists where such customers are readily ascertainable from sources outside the former employee’s business (see, Catalogue Serv. v Henry, supra, at 784; Leo Silfen, Inc. v Cream, 29 NY2d 387, 392) unless the employee has engaged in an act such as stealing or memorizing his employer’s customer lists (see, Greenwich Mills Co. v Barrie House Coffee Co., 91 AD2d 398, 402). Similarly, an employee’s recollection of information pertaining to specific needs and business habits of particular customers is not confidential (see, Catalogue Serv. v Henry, supra, at 784; Anchor Alloys v NonFerrous Processing Corp., 39 AD2d 504, 507, lv denied 32 NY2d 612).
Aside from the plaintiff’s bare allegation that the defendant had improperly used the company’s allegedly confidential customer list, the claim of confidentiality is unsupported. The plaintiff merely submitted the affidavits of its executives alleging that its list of customer names and usage information was confidential and known only to the plaintiff. In addition to disputing this claim outright, the defendant also submitted documentation which clearly tended to defeat the plaintiff’s position. Specifically, the defendant submitted a copy of the "Research Projects Corp. Directory,” a national publication containing names, addresses, rates, and other vital data on virtually all mail order houses and direct marketers in the country, including vital information on the specific clients referred to by the plaintiff in this lawsuit. The defendant also attached, inter alia, a copy of the Walter Karl, Inc. "Package *28Insert Directory”, which is issued annually by the plaintiff and reveals virtually all of the pertinent available information on its clients. A review of these documents certainly supports the defendant’s contention that the data concerning which the plaintiff complains was freely disseminated by brokers, clients, list owners and managers, and program operators.
Additionally, the defendant presented direct evidence that this information played no part in his clients’ decision to avail themselves of his services rather than continuing to do business with the plaintiff. The record contains letters from several clients indicating that the choice to switch their accounts from Walter Karl, Inc. to SMI was based upon the defendant’s personal familiarity with and knowledge of their needs as well as his outstanding ability in the field.
Furthermore, while the defendant does not dispute the claim that SMI was incorporated in February 1987 it has been held, in this regard, that as long as a defendant does not use the plaintiff employer’s time, facilities or proprietary secrets to build a competing business, there is no attendant illegality in the secret incorporation by the defendant of a new business prior to his or her departure from the plaintiff’s employment (see, Metal & Salvage Assn. v Siegel, 121 AD2d 200, 201; see also, Feiger v Iral Jewelry, 85 Misc 2d 994, affd 52 AD2d 524, affd 41 NY2d 928). The record is devoid of any evidence establishing that the defendant or SMI conducted any business prior to April 24, 1987, the date on which the defendant left the plaintiff’s employment.
Stated succinctly, notwithstanding the plaintiff’s assertion that the defendant utilized trade secrets in the form of appropriating a confidential customer list, injunctive relief is unwarranted unless circumstances are such that the customers cannot be ascertained by persons outside the plaintiff’s business or are not generally known in the trade and are discoverable only via extraordinary efforts (Metal & Salvage Assn. v Siegel, supra, at 201). None of the aforesaid circumstances prevail herein. Inasmuch as it is clear from the instant record that the plaintiff has not made the requisite evidentiary showing to justify the granting of such an extraordinary remedy, we conclude that the plaintiff’s application for a preliminary injunction should have been denied.
Moreover, any claim that the plaintiff will suffer irreparable injury without the granting of a preliminary injunction or that a balancing of the equities favors the issuance of a *29preliminary injunction must be rejected in view of the uncontradicted allegations that (1) the only business in which SMI is engaged is the package insert brokerage business, while Walter Karl, Inc. derives approximately 30% or less of its business from package insert brokerage, (2) some of the clients who chose to place their package insert business with SMI nonetheless remained with Walter Karl, Inc. for other services, and (3) some of the clients themselves would suffer the disruption of their businesses in the event that they did not wish to return to Walter Karl, Inc. and were forced to seek package insert brokerage services elsewhere (see, Bruno Co. v Friedberg, 21 AD2d 336, 341).
We note that the Supreme Court erred in failing to require that the plaintiff post an undertaking as a prerequisite to the granting of a preliminary injunction (see, CPLR 6312 [b]; Family Affair Haircutters v Detling, supra; Catalogue Serv. v Henry, supra).
In conclusion, "the general public policy favoring robust and uninhibited competition should not give way merely because a particular employer wishes to insulate himself from competition” (American Broadcasting Cos. v Wolf, 52 NY2d 394, 404). The loss of an individual’s livelihood should not be so easily jeopardized (see, Purchasing Assocs. v Weitz, 13 NY2d 267, 272, rearg denied 14 NY2d 584).
Accordingly, the order appealed from should be reversed, and the plaintiff’s motion for a preliminary injunction denied.
Brown, J. P., Kooper and Sullivan, JJ., concur.
Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion for a preliminary injunction is denied.
The plaintiff asserted that the defendant merely signed and predated the termination agreement during the course of this litigation.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902091/
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Egan Jr., J.
Cross appeals from an order of the Supreme Court (Kramer, J.), entered October 3, 2011 in Schenectady County, which, among other things, partially granted defendants’ motions for summary judgment dismissing the complaint.
Plaintiff Joseph A. Melino is the president of plaintiff Calabrese Bakeries, Inc., a wholesale and retail bakery distributor. Calabrese began as a small retail operation in Rensselaer County that sold baked goods provided by defendant Rockland Bakery, Inc. In June 2002, Melino and Rockland’s president, defendant Ignazio “Salvatore” Battaglia, entered into a contract, pursuant to the terms of which the parties agreed to form a new corporation, plaintiff B.M. Baking Company, Inc., which would be headquartered on Fuller Road in Albany County. Although poorly drafted, it appears from the contract that Melino and Battaglia envisioned that B.M. Baking would act as the exclusive wholesale and retail distributor of Rockland’s baked goods within a defined geographic area. Upon payment of the buy-in fee by Rockland, Calabrese and Rockland each would have a 50% ownership interest in the corporation.1
Approximately six months after the execution of this agree*1034ment, Melino was incarcerated on unrelated charges, and defendant Clark J. Seeley apparently stepped in to manage B.M. Baking’s operations.2 Shortly thereafter, according to Melino, Seeley set up various corporate entities, including defendant WTF Bakery, Inc. and defendant Portside Distributors, Inc., appropriated moneys and assets otherwise belonging to Calabrese and/or B.M. Baking3 and, in conjunction therewith, effectively terminated the business relationship forged by Calabrese and Rockland. In early 2004, Rockland petitioned for judicial dissolution of B.M. Baking pursuant to Business Corporation Law § 1104 and, when B.M. Baking failed to appear or answer, the petition was granted. Subsequent efforts to suspend or annul the dissolution proved unsuccessful (see Matter of Rockland Bakery, Inc. v B.M. Baking Co., Inc., 83 AD3d 1080 [2d Dept 2011]; Matter of Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 83 AD3d 1060 [2d Dept 2011]).
After Melino’s release from prison, plaintiffs commenced this action setting forth 14 causes of action4 sounding in, among other things, fraudulent inducement, breach of contract, breach of fiduciary duty and prima facie tort. Following joinder of issue and discovery, Battaglia, Rockland and defendant Rockland Bakery NY, Inc. (hereinafter collectively referred to as the Rockland defendants) moved for summary judgment dismissing the complaint, and Seeley, WTF and Portside, together with defendants C&C Specialties, Inc. and Joslen Developers, LLC., separately moved for similar relief. Plaintiffs opposed the respective motions contending, among other things, that they should be held in abeyance pending further discovery and the Second Department’s resolution of the then-pending appeals regarding the judicial dissolution. Supreme Court denied defendants’ motions as to the first, second and third causes of action alleging fraudulent inducement, breach of contract and conversion, but granted the motions as to the balance of the complaint, concluding that the remaining claims were either meritless or duplicative. Additionally, Supreme Court held that plaintiffs’ claims for damages would be limited to those incurred prior to *1035the dissolution of B.M. Baking in March 2004. These cross appeals ensued.5
Initially, to the extent that plaintiffs take issue with Supreme Court’s resolution of their January 2008 motion to compel discovery, we note that plaintiffs, by their own admission, did not perfect their appeal from Supreme Court’s resulting order. Additionally, “an appeal from ... an intermediate order [such as the one at issue here] does not bring up for review prior nonfinal orders” (Abasciano v Dandrea, 83 AD3d 1542, 1543 [2011], citing Baker v Shepard, 276 AD2d 873, 874 [2000]). Accordingly, plaintiffs’ argument on this point is not properly before us.
Plaintiffs’ related claim—that Supreme Court erred in failing to hold defendants’ motions for summary judgment in abeyance pending further discovery—is without merit. While it is true that a motion for summary judgment may be “denied as premature when the nonmoving party has not been given reasonable time and opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive knowledge of the movant or a codefendant” (Metichecchia v Palmeri, 23 AD3d 894, 895 [2005]), plaintiffs had ample time and opportunity to do so here (see Judd v Vilardo, 57 AD3d 1127, 1131 [2008]). Moreover, “a trial court has broad discretionary power in controlling discovery and disclosure, and only a clear abuse of discretion will prompt appellate action” (Premo v Rosa, 93 AD3d 919, 920 [2012] [internal quotation marks and citations omitted]). We discern no abuse of that discretion in this matter.
Nor can we say that Supreme Court erred in concluding that plaintiffs’ damages, if any, must be limited to those incurred prior to the March 19, 2004 judicial dissolution of B.M. Baking.6 Contrary to plaintiffs’ assertions, the underlying contract does not evidence the parties’ intent to create a joint venture between Calabrese and Rockland “in which the corporate entity, [i.e., B.M. Baking], was a mere conduit” for the distribution of goods (Rinaldi v Casale, 13 AD3d 603, 605 [2004]), nor does it demonstrate that Calabrese and Rockland retained certain rights that were “independent of and extrinsic to the corporate entity” formed thereunder (Sagamore Corp. v Diamond W. *1036Energy Corp., 806 F2d 373, 379 [1986] [internal quotation marks and citation omitted]). As such, this matter falls within the general rule that where the parties chart a “course “to conduct business through a corporation, . . . they are not at one and the same time joint venturers and stockholders, fiduciaries and nonfiduciaries, personally liable and not personally liable” (Weisman v Awnair Corp. of Am., 3 NY2d 444, 449 [1957]; accord D’Orazio v Mainetti, 24 AD3d 915, 917 [2005]; see generally Lombard & Co., Inc. v De La Roche, 46 AD3d 393, 393-394 [2007], lv dismissed 11 NY3d 782 [2008]; compare Sagamore Corp. v Diamond W. Energy Corp., 806 F2d at 379). Accordingly, the limitation imposed by Supreme Court will not be disturbed.
We now turn to the specific causes of action set forth in plaintiffs’ complaint. The first cause of action sounds in fraudulent inducement and essentially is based upon a misrepresentation allegedly made by Battaglia and/or Rockland “that certain corporate, institutional and governmental] entities . . . would become customers of [B.M. Baking].” While it is true that “a misrepresentation premised directly on the same actions giving rise to a breach of contract does not give rise to a separate cause of action for fraud” (Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1129 [2011]), we are satisfied that the conduct alleged in plaintiffs’ first cause of action “is sufficiently discrete from that underlying [plaintiffs’] breach of contract claim to state a separate cause of action” (id. at 1129). More to the point, in view of the conflicting proof contained in the voluminous record before us, including Melino’s examination before trial testimony and Battaglia’s affidavits, we agree with Supreme Court that questions of fact preclude an award of summary judgment as to this cause of action.
With respect to plaintiffs’ second cause of action, wherein plaintiffs allege that Battaglia and/or Rockland breached the underlying contract by violating the exclusive distribution clause contained therein and charging B.M. Baking “more than the lowest wholesale price charged to other wholesale customers,” the Rockland defendants argue only that Supreme Court should have dismissed this claim due to plaintiffs’ inability to prove damages. We disagree. In light of Melino’s incarceration, which necessarily limited his knowledge of B.M. Baking’s daily operations and his access to relevant corporate records, as well as the limited business records (invoices, receipts, tax returns, etc.) apparently still remaining, plaintiffs indeed may have a difficult time proving the damages alleged. However, Supreme Court correctly concluded that—in view of the conflicting *1037documentary evidence and the credibility issues raised by Melino and Battaglia’s disparate accounts of what actually transpired here—resolution of this particular cause of action must await a trial.
We reach a similar conclusion regarding plaintiffs’ third cause of action alleging, among other things, that Seeley and the Rockland defendants converted and misappropriated “assets, funds, customer accounts and business opportunities]” otherwise properly belonging to plaintiffs (see generally Salatino v Salatino, 64 AD3d 923, 925 [2009], lv denied 13 NY3d 710 [2009] [elements of conversion]). Again, while plaintiffs indeed may find it difficult to specifically identify, trace and document the property allegedly appropriated, the confusing and conflicting proof in the record precludes an award of summary judgment as to this cause of action.
Plaintiffs’ remaining claims—with one exception—do not warrant extended discussion. Plaintiffs’ fourth cause of action is either a rehash of the previously stated conversion claim or an attempt to collaterally attack the long-resolved judicial dissolution of B.M. Baking, and plaintiffs’ fifth cause of action seeking an accounting, together with their sixth cause of action (fraudulent representation), eighth cause of action (conversion), tenth causes of action (violation of Business Corporation Law § 720 and breach of fiduciary duty) and eleventh cause of action (breach of contract) are, as Supreme Court appropriately concluded, duplicative of other causes of action contained in the complaint. Plaintiffs also failed to allege—much less demonstrate—the elements necessary to either impose a constructive trust (ninth cause of action) (see generally Enzien v Enzien, 96 AD3d 1136, 1137 [2012]) or maintain a cause of action for prima facie tort (twelfth cause of action) (see generally Cusimano v United Health Servs. Hosps., Inc., 91 AD3d 1149, 1152-1153 [2012], lv denied 19 NY3d 801 [2012]). Notably, as to this latter cause of action, plaintiffs failed to allege or establish that defendants’ sole motivation for the offending conduct was malevolence (see White v Ivy, 63 AD3d 1236, 1239 [2009]). Finally, plaintiffs’ claim for punitive damages (thirteenth cause of action), which cannot be maintained as an independent cause of action (see Brandle Meadows, LLC v Bette, 84 AD3d 1579, 1579 n [2011]), must fail. “Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights” (Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994] [citation omitted]).
We do, however, find merit to plaintiffs’ claim that Supreme *1038Court erred in granting summary judgment dismissing their seventh cause of action for breach of fiduciary duty.7 The case law makes clear that “officers and directors of a corporation stand in a fiduciary relationship to the corporation and owe their undivided and unqualified loyalty to the corporation” (Howard v Carr, 222 AD2d 843, 845 [1995]; accord Busino v Meachem, 270 AD2d 606, 609 [2000]; Blank v Blank, 256 AD2d 688, 694-695 [1998]). Hence, officers and directors are not “permitted to profit personally at the expense of the corporation^ and] . . . conduct that cripples or injures the corporation is impermissible” (Howard v Carr, 222 AD2d at 845 [citation omitted]). Similarly, “an employee is prohibited from acting in any manner inconsistent with his or her employment and must exercise good faith and loyalty in performing his or her duties, and may not use his or her principal’s time, facilities or proprietary secrets to build [a] competing business” (Mega Group v Halton, 290 AD2d 673, 675 [2002] [internal quotation marks and citations omitted]).
Although Battaglia averred that he “did not appear for any meeting wherein directors or officers [of B.M. Baking] were elected” and Seeley, in turn, asserted that he was not an employee of either Calabrese or B.M. Baking, the documentary evidence tendered by plaintiffs—including corporate resolutions/ minutes naming Battaglia as a director and vice- president of B.M. Baking and two documents wherein Seeley identified himself as the manager of “Calabrese Rockland Baker[y]”—was sufficient to raise a question of fact on this point. Accordingly, Supreme Court’s order must be modified to the extent of denying defendants’ motions for summary judgment dismissing plaintiffs’ seventh cause of action, thereby permitting plaintiffs to go forward with respect to their breach of fiduciary duty claim against Battaglia and Seeley. The parties’ remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as granted defendants’ motions for summary judgment dismissing the seventh cause of action; motions denied to that extent; and, as so modified, affirmed.
. The contract provided that Calabrese and B.M. Baking would accept “product for payment” until the agreed-upon sum ($175,000) was paid in full.
. The parties have widely divergent accounts as to Battaglia’s awareness of Melino’s legal troubles prior to the execution of their agreement and/or the circumstances under which Seeley assumed his management responsibilities.
. According to Melino, Rockland had not paid the buy-in fee at this point; therefore, to Melino’s analysis, Calabrese retained a 100% interest in B.M. Baking.
. Two of the causes of action are each mistakenly denominated as the tenth cause of action.
. Plaintiffs’ subsequent motion for a stay pending appeal was denied by this Court.
. A corporation’s legal existence terminates upon dissolution and, as such, it “is prohibited from carrying on new business and does not enjoy the right to bring suit in the courts of this state, except in the limited respects specifically permitted by statute” (Moran Enters., Inc. v Hurst, 66 AD3d 972, 975 [2009] [citation omitted]; see Business Corporation Law §§ 1005, 1006).
. The complaint, to our reading, alleges that both Battaglia and Seeley breached their fiduciary duty to B.M. Baking. Hence, to the extent that Supreme Court’s decision and resulting order suggest that this claim was brought against Battaglia alone, we disagree.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902092/
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OPINION OF THE COURT
Levine, J.
Plaintiff operates as both an air express transportation company providing expeditious air delivery of smaller packages and documents throughout the country and as an air freight forwarder for air shipments of heavier cargo nationwide and throughout the world. The services provided in these operations include pickup from the customers’ locations and physical delivery at the ultimate consignees’ destinations, and the ground transportation entailed in such activities. The shipments travel under a single airway bill for a fee which is not broken down into separate charges for the air and ground transportation components thereof. The vast majority of plaintiff’s domestic shipments travel by air on planes of a wholly owned subsidiary, which is certified as an all-cargo air carrier. Intervenor also operates primarily as an air freight forwarder, through a wholly owned subsidiary.
The controversy giving rise to the instant action for a declaratory judgment is over the applicability of the State franchise tax on the gross receipts of transportation and transmission corporations (Tax Law § 184 [1]), and of the Federal exemption barring a State from levying a tax "directly or indirectly * * * on the sale of air transportation or on the gross receipts derived therefrom” (49 USC § 1513 [a]). The New York statute extends the tax to the State portion of a transporter’s interstate transportation gross receipts, based in general on a mileage ratio (Tax Law § 184 [4] [a]) and, in the case of aviation corporations, on the average ratio of New York and non-New York arrivals and departures, tonnage and operating revenues (Tax Law § 184 [4] [b]). The statute also permits defendant State Tax Commission to adopt other meth*32ods of allocation when it decides that the method prescribed "does not fairly and equitably reflect gross earnings from all sources within this state” (Tax Law § 184 [4] [f]).
Plaintiff paid Tax Law § 184 (1) franchise taxes under protest in 1981 and then sought a refund on the basis of the Federal exemption. Defendant State Department of Taxation and Finance rejected plaintiff’s protest and request for a refund on the ground that air freight forwarders are not involved directly in air transportation and, hence, their gross receipts do not qualify for exemption under 49 USC § 1513 (a). It was further determined that an appropriate allocation formula should not be based on that expressly provided under the statute, but rather, upon the average ratio of plaintiff’s New York and non-New York property holdings, wages of employees and pickups and deliveries. Plaintiff then brought this declaratory judgment action and intervenor was permitted to intervene as a party plaintiff. After cross motions for summary judgment, Supreme Court granted relief to plaintiff and intervenor (hereinafter collectively referred to as plaintiffs) by declaring that Tax Law § 184 (1) is unconstitutional "insofar as it seeks to tax the gross receipts of * * * plaintiffs derived from their operations as air express transportation companies and air freight forwarders”, and enjoined imposition of collection of the tax on their gross receipts so derived (134 Misc 2d 602, 603). This appeal by defendants ensued.
We affirm. It seems patently clear that the tax defendants have sought to impose herein on the allocable New York shares of plaintiffs’ gross receipts for interstate transportation, in fact, is levied upon receipts at least a portion of which are for air transportation of packages and freight of plaintiffs’ customers. Therefore, the Federal exemption as to such taxation "directly or indirectly” clearly applies, irrespective of whether plaintiffs either do not directly furnish the air transportation or that they incidentally also furnish nonair transportation as part of the offered services for which they receive gross receipts (see, Air Transp. Assn. v New York State Dept. of Taxation & Fin., 91 AD2d 169, 170-171, affd 59 NY2d 917, cert denied 464 US 960).
On appeal, defendants do not dispute the correctness of the foregoing conclusion. Instead, they argue that a tax could lawfully be imposed under Tax Law § 184 (1) on the portion of plaintiffs’ gross receipts representing their charges for services which do not involve air transportation. Defendants ask that the judgment be modified accordingly so that, in a proper *33proceeding before defendants, the appropriate allocation could be made. We reject defendants’ request without deciding the issue they raise. As plaintiffs point out, defendants’ present contention was never asserted either at the administrative level or before Supreme Court. In addressing the issue, the opposing parties have both alluded to facts dehors the record which would bear on whether "air transportation” under the Federal exemption statute includes the full range of plaintiffs’ transportation services in the manner in which they are provided and charged for. Since defendants’ present contention at the least might have been refuted in part through additional evidence offered by plaintiffs which they were not called upon to submit on the issues actually raised before Supreme Court, we should not consider it (see, Matter of Schwartz v Cuomo, 111 AD2d 759, 760, appeal dismissed 66 NY2d 758, lv denied 67 NY2d 605; cf., Rentways, Inc. v O'Neill Milk & Cream Co., 308 NY 342, 349). Moreover, Supreme Court responsively addressed and correctly decided the only controversy before it as framed by the parties, whether defendants could lawfully impose the tax under Tax Law § 184 (1) on the New York share of plaintiffs’ gross receipts from all of their transportation services. We see no reason to decide whether the tax can be imposed on some alternative, hypothetical basis.
Mahoney, P. J., Kane, Casey and Harvey, JJ., concur.
Order affirmed, with costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902093/
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OPINION OF THE COURT
Bracken, J.
The question presented for our determination is whether *36the plaintiff Helene Firestein’s application for, and acceptance of, workers’ compensation benefits preclude her from bringing a separate common-law action to recover damages based on subsequent acts of negligence committed by a coemployee which resulted in the aggravation of the work-related injury, where the subsequent aggravation of the initial injury did not arise out of and in the course of the plaintiff Helene Fire-stein’s employment. We determine that the plaintiff Helene Firestein has the right to maintain such an action and accordingly affirm.
The plaintiff Helene Firestein was employed by the defendant Kingsbrook Jewish Medical Center (hereinafter Kings-brook) as a patient accounts clerk. On June 16, 1982, during the course of her employment, she slipped and fell at Kings-brook, and was admitted to its hospital for medical treatment. An X-ray photograph disclosed that she had suffered an intertrochanteric fracture of the right femur, which condition was treated by an open reduction and internal fixation of a screw and plate, and Knowles pins.
Mrs. Firestein alleges that, on July 22, 1982, the defendant Scott, another employee of Kingsbrook, negligently caused "the plaintiff [sic] to be precipitated to [a] wheelchair with undue force”. This negligent act allegedly resulted in a rein-jury of the plaintiff’s hip. It is alleged that the previously inserted Knowles pins and compression screw and plate had to be removed, and that Mrs. Firestein then had to undergo a hip replacement.
Mrs. Firestein applied for, has received and continues to receive, workers’ compensation benefits. It is undisputed that these benefits have been computed so as to provide compensation for all of the injuries which were suffered by Mrs. Firestein because of her work-related accident; that is, the scope of the workers’ compensation benefits includes not only the injury originally suffered by Mrs. Firestein on June 16, 1982, but also the aggravation, or new injury, which occurred on July 22, 1982, and which would not have occurred but for the original work-related accident.
Mrs. Firestein commenced this action against Kingsbrook and Scott by the service of a summons and complaint. The complaint refers only to the incident of July 22, 1982. The defendants Kingsbrook and Scott each appeared and answered separately; in neither appellant’s original answer was the defense of the exclusivity of workers’ compensation asserted. *37By notice of motion dated August 12, 1986, the defendant Scott moved (1) for leave to amend her answer for leave to assert a defense based on workers’ compensation and (2) to dismiss the plaintiffs’ complaint insofar as it is asserted against her, based on that defense. By notice of cross motion dated September 17, 1986, the defendant Kingsbrook cross-moved to dismiss the plaintiffs’ complaint insofar as it is asserted against it on that basis.
The Supreme Court, Kings County, denied the motion and the cross motion in a decision and order (one paper) dated December 2, 1986. These appeals followed.
It is well settled that a person who is injured in the course of his or her employment and who later suffers an aggravation of this injury due to medical malpractice has a remedy against his employer under the Workers’ Compensation Law, both as a result of the original injury and as a result of the malpractice (Matter of Parchefsky v Kroll Bros., 267 NY 410). In Matter of Parchefsky v Kroll Bros. (supra, at 417), the court stated that "[cjompensation for the original injury includes the ultimate results of the injury, though the injury has been aggravated by intervening malpractice”. In the present case, if Mrs. Firestein had been treated at a different hospital, and if she had suffered a similar aggravation of her injury as the result of the negligence of some other person, who was not a coemployee, there is no question that the aggravation of the initial injury would be compensable.
The payment of compensation under the rule of the Parchefsky case (supra) is not dependent on whether the subsequent aggravation of the original injury occurred within the scope of the claimant’s employment. Rather, the plaintiff is entitled to compensation for his or her total disability provided that the original injury was work related, and further provided that "the chain of causation between accidental injury and ultimate disability remains unbroken” (Matter of Parchefsky v Kroll Bros., supra, at 412).
It was recognized in Parchefsky (supra) that the entitlement of an injured employee to workers’ compensation benefits, inclusive of damages for subsequent medical malpractice, did pose the risk of an unjust double recovery should such an employee also be permitted to recover in his action for damages against the subsequent tort-feasor. This risk was obviated, however, by the terms of the then extant Workers’ Compensation Law § 29, pursuant to which the acceptance of *38workers’ compensation benefits, which were inclusive of damages for subsequent medical malpractice, operated as an assignment of the employee’s cause of action against the successive tort-feasor to the person or insurance carrier responsible for making the workers’ compensation payments (Matter of Parchefsky v Kroll Bros., supra, at 415). Under the law then in effect, "where an employee accepts compensation, under a Workers’] Compensation Law for an industrial injury including the results of malpractice in the treatment of such injury, he [could not] maintain an action against the negligent physician” (Matter of Parchefsky v Kroll Bros., supra, at 417). In that event the right of action for malpractice passed under the statute to the party paying the compensation.
Although Workers’ Compensation Law § 29 has since been amended so as to alter the mechanism by which a double recovery in cases such as this is prevented, the Parchefsky rule that workers’ compensation covers not only the original work-related injury but any aggravation thereof, is still valid. The Court of Appeals has reaffirmed the rule that: "Where * * * the aggravation injuries are the direct consequence of the initial compensable injury and the chain of causation between the accidental injury and the ultimate disability remains unbroken, an injured employee is entitled to the statutory compensation for the ultimate disability so resulting from the initial injury” (Matter of Roach v Hastings Plastics Corp., 57 NY2d 293, 296).
The current provisions of Workers’ Compensation Law § 29 no longer provide for an assignment by the injured employee of his cause of action against a third party where the injured employee accepts workers’ compensation. Instead, the injured employee may accept workers’ compensation and also bring an action against the third-party tort-feasor, and the party responsible for the payment of compensation is entitled to a lien on whatever recovery there might be in the third-party action (see, Workers’ Compensation Law § 29 [1], amended by L 1937, ch 684; Hession v Sari Corp., 283 NY 262).
In Matter of Roach v Hastings Plastics Corp. (supra), the Court of Appeals held that the settlement by an injured employee of his action against successive third-party tort-feasors, without the consent of the party responsible for workers’ compensation payments, relieves that party of any responsibility to make workers’ compensation payments attributable to the injuries caused by the postaccident malpractice. However, *39the workers’ compensation carrier remains liable for payments attributable to the initial injury.
Pursuant to the reasoning of the Roach and Parchefsky cases (supra), no risk of double recovery is presented by the plaintiffs’ pursuit of a common-law action for damages against the defendants Kingsbrook and Scott. Any recovery in this action will be subject to a workers’ compensation lien, so that the possibility of duplicative recovery for the same injuries is precluded.
The appellants argue that because Kingsbrook was Helene Firestein’s employer and because Scott was her coemployee, they are shielded from liability at common law. This argument is meritless for the basic reason that Mrs. Firestein’s injuries alleged to have been caused on July 22, 1982, did not arise in the course of her employment. Where an employee of a hospital is admitted as a patient, and is negligently treated at that hospital, the injuries which result from such mistreatment have been held not to arise out of the injured person’s employment, so that an action at law to recover for such injuries may be brought (see, Sivertsen v State of New York, 19 NY2d 698; Volk v City of New York, 284 NY 279; Milashouskas v Mercy Hosp., 64 AD2d 978; Stevens v County of Nassau, 56 AD2d 866). These cases are to be distinguished from those in which malpractice is committed by a coemployee of the plaintiff, and where the medical services rendered by that coemployee were not available to the public, but were exclusively available to coemployees, so that a nexus exists between the plaintiff’s employment and the occurrence of the malpractice (see, Golini v Nachtigall, 38 NY2d 745; Garcia v Iserson, 33 NY2d 421).
At the core of the appellants’ arguments is their literal construction of Workers’ Compensation Law §29 (6), which provides that "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ”. No court has ever interpreted this statute so as to preclude a party, who is initially injured in the course of his employment, from recovering in an action at law for the additional damages caused by an aggravation of the injury which occurs outside the scope of his employment, solely on the ground that the aggravation was caused by a coemployee.
This interpretation was, in fact, previously rejected by this *40court in Milashouskas v Mercy Hosp. (supra). In that case, we upheld the right of a hospital employee to bring an action at law to recover compensation for injuries caused by the malpractice of her employer or a coemployee, which occurred outside the scope of employment, and which resulted in the aggravation of a previous job-related injury. The record in the Milashouskas case indicated that the plaintiff had been receiving workers’ compensation for the effects of the original work-related injury, as well as for the aggravation thereof. The availability of workers’ compensation with respect to the aggravation injuries in the Milashouskas case (supra), was thus held not to deprive the plaintiff of her right to sue for the damages caused by medical malpractice not related to her employment. We do not agree with the appellants in the present case that the Milashouskas case should now be overruled.
The appellants also suggest that to permit Mrs. Firestein to recover damages for the injuries attributable to the alleged malpractice which occurred on July 22, 1982, would constitute an acceptance of the "dual capacity doctrine” which was squarely rejected by the Court of Appeals in Billy v Consolidated Mach. Tool Corp. (51 NY2d 152, rearg denied 52 NY2d 829). Under the dual capacity doctrine, an employee who is injured during the course of his employment may sue his employer for money damages if the employer " 'occupies * * * a second capacity that confers on him obligations independent of those imposed on him as employer’ ” (Billy v Consolidated Mach. Tool Corp., supra, at 158, quoting from 2A Larson, Workmen’s Compensation Law § 72.80, at 14-112). Once again, the fundamental distinction in the present case is that the injuries for which Mrs. Firestein seeks compensation in a court of law did not occur within the scope of her employment. To allow the plaintiff to pursue her common-law right to recover compensation for the injuries sustained by her as a result of medical malpractice which did not, in any sense, occur during the course of her employment, does not constitute approval of the dual capacity doctrine.
The appellants also argue that we may not make the finding that the injury which occurred on July 22, 1982, did not occur within the scope of Mrs. Firestein’s employment. It is argued that this is a question which may be decided only by the Workers’ Compensation Board, which body has, in fact, determined that that injury did arise within the scope of her employment.
*41It is true that O'Rourke v Long (41 NY2d 219) held that it is inappropriate for the courts to express views with respect to the applicability of the Workers’ Compensation Law pending a determination on that issue by the Board (see, Botwinick v Ogden, 59 NY2d 909, 911, revg 87 AD2d 293). In the present case, however, the appellants inform us that the Workers’ Compensation Board has now terminated Mrs. Firestein’s case, having classified her as permanently totally disabled. The availability of workers’ compensation is not a question pending before the Workers’ Compensation Board; rather, it has been decided. Further, the decision of the Board that Mrs. Firestein deserved compensation for her total disability did not necessarily entail a finding that the postaccident malpractice which allegedly contributed to this disability was work related. This is so because, as we noted above, her injuries are compensable in their totality, provided that the initial injury was work related, and provided further that the ultimate disability is traceable to the original injury. Thus, the Board did not have to decide, and has no reason to decide now or in the future, whether the aggravation, which concededly contributed to the ultimate disability, itself occurred in the course of Mrs. Firestein’s employment.
We would also note, were it necessary for the Board to decide whether the aggravation of Mrs. Firestein’s injury occurred within the scope of her employment, and were the Board to decide that such aggravation did occur within the scope of employment, that such a finding would be completely arbitrary and irrational. When Mrs. Firestein suffered the aggravation of her hip injury, she had already been hospitalized for several weeks, and was not in the least sense acting within the scope of her employment. Since "it may be determined, as a matter of law, that her injury on July 22, 1982, was not in the course of her employment, this is not a case "where the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law” (O’Rourke v Long, supra, at 228), and so deference to the Workers’ Compensation Board is unnecessary. Nor is there present in this case any question of fact or any mixed question of fact and law with respect to whether workers’ compensation is Mrs. Firestein’s exclusive remedy under the rule of Garcia v Iserson (33 NY2d 421, supra) and Golini v Nachtigall (38 NY2d 745, supra) (cf., Botwinick v Ogden, 59 NY2d 909, supra). This is so because the record is completely devoid of any proof "that the medical services *42furnished [to Mrs. Firestein] were provided as incidental to [her] employment” (Golini v Nachtigall, supra, at 746-747).
For the foregoing reasons, we agree with the Supreme Court, Kings County, that there is no merit to any defense based on the exclusivity of workers’ compensation. Accordingly, the order appealed from should be affirmed.
Mollen, P. J., Lawrence and Kooper, JJ., concur.
Ordered that the order is affirmed, with one bill of costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902094/
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OPINION OF THE COURT
Mahoney, P. J.
In November 1986 defendants were indicted and charged, in various combinations, with possession and sale of controlled substances, attempt to commit the same and conspiracy, based on evidence that they were part of a drug distribution ring. A crucial portion of that evidence was obtained by virtue of an electronic surveillance warrant. Defendants moved to suppress *45such evidence, and that motion was granted. The People appeal.
In November 1983 Arthur Lamb, Jr., was arrested at the New York border after attempting to enter the United States from Canada while in possession of four kilograms of cocaine. Lamb agreed to cooperate with Federal Drug Enforcement Agency officials and dealt, in particular, with Special Agent Robert Sears. As part of the investigation, Lamb made tape-recorded telephone calls to two men, Robert Barth and Francesco Greco, who had allegedly supplied Lamb with cocaine to transport across the border. Barth and Greco were arrested and charged by Canadian officials with conspiracy to export cocaine. The recordings of the telephone calls were suppressed by a Canadian court. Though nothing in the record documents the reason for the suppression, Special Agent Sears averred that a Canadian police official informed him that the recordings were suppressed "because the Canadian Crown prosecutor made an error under Canadian law when seeking to introduce them into evidence”. Both Lamb and Special Agent Sears testified at the January 1984 trial on the Canadian charges but Barth and Greco were acquitted on February 6, 1984, specifically on the ground that the Canadian court found Lamb’s testimony to be unworthy of belief. Special Agent Sears asserted that he was informed by a Canadian police official that, without the corroborating effect of the suppressed recordings, the Canadian court was unwilling to credit Lamb’s testimony over that of the two men charged. After the acquittal, a Federal investigation and prosecution of Barth and Greco was commenced, which culminated in their pleading guilty to narcotics offenses in their dealings with Lamb.
In January 1984, based in part on information supplied by Lamb, Federal authorities commenced an investigation into alleged narcotics trafficking by Harry Olesen, one of the defendants herein. In February 1984 the State Police became involved in the investigation, and in April 1984 the State Organized Crime Task Force (hereinafter the Task Force), the prosecutor herein, joined in. In May 1984 the Task Force applied to Justice T. Paul Kane of this court for an eavesdropping warrant authorizing a wiretap on the telephone of Ole-sen’s live-in girlfriend. The application was supported by three affidavits. The warrant was issued on May 24, 1984, and expired by its terms on June 22, 1984. On that date Justice Kane issued an order extending the warrant until July 22, 1984, and several further extensions were ordered.
*46Defendants contended, and County Court agreed, that the omission of certain information in the application for the eavesdropping warrant undermined the finding of probable cause, rendering the warrant defective and the conversations recorded pursuant thereto inadmissible. Further, County Court found that the People failed to properly obtain sealing of the recordings as required by statute.
Dealing with the first issue, defendants’ position is that the People’s failure to advise Justice Kane of the acquittal of Barth and Greco on the Canadian charges and the, determination of the Canadian court that Lamb’s testimony was unworthy of belief vitiates the finding of probable cause. Defendants also claim that a false statement was made in one affidavit. Where an affidavit submitted on a warrant application contains a false statement which was made knowingly or with reckless disregard for the truth and which is necessary to the finding of probable cause, the warrant will be voided and the fruits of the search suppressed if the remainder of the affidavit is insufficient to establish probable cause (see, Franks v Delaware, 438 US 154, 155-156). The warrant application at issue herein was supported by affidavits of State Police Investigator Ralph Marshall, Ronald Goldstock, the Deputy Attorney-General in charge of the Task Force, and Assistant Deputy Attorney-General Terrence Kelly. Marshall’s affidavit stated that he had been investigating a cocaine distribution syndicate in Albany, Saratoga and Warren Counties for approximately seven months. The People appear to concede that Marshall actually became involved in the investigation in April 1984, such that he was only involved for approximately two months. Even assuming this to be a knowingly made false statement, it is hardly necessary to the finding of probable cause. Thus, it does not void the warrant. More significant is the failure of the applicant to apprise Justice Kane of the decision of the Canadian court.
Initially, the People contend that Marshall, Goldstock and Kelly were not aware of the acquittal. County Court imputed the knowledge of Special Agent Sears to the State law enforcement authorities using the same analysis by which police agencies are charged with knowledge that a defendant is represented by an attorney where a charge in a different jurisdiction is pending (see, People v Bertolo, 65 NY2d 111, 117-121). While we agree that, on the facts of this case, the knowledge of Special Agent Sears should be imputed to the State law enforcement officials, we decline to set forth any *47broad holding that police officers who are using an informant’s information to support a warrant application are under an obligation to inquire into the disposition of other criminal charges regarding which the informant has provided information. It is sufficient to hold that, in this case, based upon the close cooperation of the Federal agents and State law enforcement officers and the parallel tracks of their investigations, the knowledge of the decision of the Canadian court should be imputed.
However, we disagree with County Court that the failure of the People to advise Justice Kane of the outcome of the Canadian prosecution vitiates the warrant. We are not dealing with a false statement, but an omission. Further, the relevance of the Canadian court’s decision in assessing the reliability of Lamb’s information is questionable at best. The Canadian court refused to credit Lamb’s testimony over that of Barth and Greco. However, in so doing it did not have the benefit of the recordings which had been suppressed and which would have tended to corroborate Lamb’s testimony. Thus, we are not dealing with a situation where, after considering all of the evidence, Lamb had been found to be untruthful. Moreover, after the Canadian acquittal, Federal authorities used Lamb’s information to obtain convictions of both Barth and Greco in Federal court. Thus, the decision of the Canadian court is less a reflection on the reliability of Lamb’s information than on the assessment of that information without the benefit of the corroborative recordings.
Further, the information which the Canadian court found not to be reliable concerned Barth and Greco and was not the basis for probable cause in this case. In assessing the value of an informant’s statements to establish probable cause, the reliability of the informant is crucial (People v Johnson, 66 NY2d 398, 402-403). Certainly, it would have been more appropriate for the People to have advised Justice Kane of the acquittal in the Canadian court. However, the omission of such information does not cast such a doubt on Lamb’s reliability as to void the warrant. An informant’s reliability may be demonstrated, not only by his track record as a supplier of information, but by police investigation which corroborates details of his statement (supra, at 403). Marshall averred that he had personally listened to tapes of the calls between Lamb and Barth and Greco, the very same tapes which were not considered-by the Canadian court. Also, Lamb’s information of who was dealing in the cocaine distribution ring and the *48places of such dealing was corroborated by records of the telephone numbers called from Olesen’s residence and personal surveillance of the individuals and places indicated by Lamb. Lamb’s information was further corroborated by a confidential informant whose information is detailed in Marshall’s affidavit. In view of all of the other information provided upon the warrant application, the decision of the Canadian court is not so significant that its omission vitiates the finding of probable cause.
Next, we hold that County Court incorrectly determined that the People failed to comply with CPL 700.50 (2), which requires immediate sealing of all evidence seized pursuant to an eavesdropping warrant. The statute provides that: "Immediately upon the expiration of the period of an eavesdropping warrant, the recordings * * * must be made available to the issuing justice and sealed under his directions” (CPL 700.50 [2]). The People bear the burden of proving strict compliance with these sealing requirements (see, People v Winograd, 68 NY2d 383, 394; People v Basilicato, 64 NY2d 103, 116). While a one-day delay in sealing has been excused, even absent an explanation, any additional delay, if not satisfactorily explained, requires suppression (see, People v Winograd, supra; People v Gallina, 66 NY2d 52, 59). Here, the initial warrant expired at midnight on Friday, June 22, 1984. Justice Kane told Kelly in advance that he would not be available to seal the tapes until the following Monday, June 25, 1984, and told Kelly to bring the tapes for sealing on that day. The first extension expired at midnight on Sunday, July 22, 1984. Justice Kane told Kelly in advance that he would not be available until Tuesday, July 24, 1984, and told Kelly to bring the tapes for sealing on that date. Finally, the fifth extension expired at midnight on Friday, October 19, 1984. Prior to that time Justice Kane told Kelly that he would be unavailable until Monday, October 22, 1984, and told Kelly to bring him the tapes for sealing on that date. The People offered affidavits of Kelly and Justice Kane to establish these facts. This is not a case where no excuse was offered or where the People learned, after the fact, that the issuing Justice was unavailable. Here, prior to the expiration of the warrant and the relevant extensions, the issuing Justice advised the People that he would not be available immediately upon the expira*49tion thereof and made arrangements for sealing immediately upon his return. Such directions were complied with. Therefore, in this case, the brief delay in sealing the tapes was justified (see, People v Edelstein, 54 NY2d 306, 309-310).
Mikoll, Yesawich, Jr., Harvey and Mercure, JJ., concur.
Order reversed, on the law, and motion denied.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902095/
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OPINION OF THE COURT
Carro, J.
Twenty-six years ago, just before the Beatles exploded onto the musical scene and were still relatively unknown musicians, they entered into a standard form agreement with defendant EMI Records Limited (EMI), granting EMI the exclusive right to distribute Beatles’ recordings worldwide, in return for which the Beatles were to receive certain royalty *52payments. This agreement continued under a more complicated 1967 agreement.
The extent of the Beatles’ bargaining leverage increased dramatically by 1969 with their enormous musical success and impact on popular culture, resulting in their exercising increased control of the manufacture and distribution of their recordings. Accordingly, through their New York corporation, Apple Records, Inc. (Apple), the Beatles entered into a significantly different relationship with defendants EMI and Capitol Records, as set forth in two related agreements, both dated September 1, 1969. One was a licensing agreement with EMI, under which EMI granted Apple the sole and exclusive right to manufacture, distribute, advertise and sell Beatles’ recordings in the United States, Canada and Mexico, including the right to use EMI’s master recordings of previously released albums for this purpose, provided that Apple enter into a manufacturing and distributing agreement covering this territory with Capitol Records, Inc.
Accordingly, the second agreement was a manufacturing and distributing agreement with Capitol Records and its subsidiary Capitol Records Distributing Corporation. Apple agreed to have Capitol Records press the Beatles’ records at certain fixed prices, F.O.B., and Capitol Records Distributing Corporation, in turn, agreed to buy these pressed records from Apple at a higher fixed price, F.O.B. The agreement purportedly provides that Apple is to retain ownership of the records manufactured in the United States by Capitol Records until same are paid for by Capitol Records Distributing Corporation. When Capitol Records and Capitol Records Distributing Corporation merged in 1970, this buy and sell arrangement became one between Apple and Capitol Records.
Relevant also is the provision in the manufacturing and distributing agreement for an increased differential of approximately 25% between sell and buy prices after August 31, 1972, if certain recordings achieved minimum sales of 500,000 units prior to January 26, 1976. As a result of disputes which arose concerning the payment of the escalated differential, the parties entered into a modification agreement in February 1973, under which it is alleged that Capitol Records agreed to pay the escalated differential. Capitol Records disputes plaintiffs’ characterization of the nature and effect of this agreement.
Apple Records and Apple Corps Limited commenced an *53action in 1979, asserting causes of action for breach of contract, declaratory judgment and an accounting. Three years later, and before an answer was served, the corporate plaintiffs served an amended complaint, dropping the accounting cause of action, adding claims of fraud, conversion, breach of fiduciary duty, tortious conduct and unjust enrichment and seeking punitive damages. Defendants answered this amended complaint, asserting various counterclaims and affirmative defenses, including that corporate plaintiffs had assigned their rights to payments to the individual Beatles.
Although maintaining that the written agreements alluded to by defendants as assignments were, in fact, merely payment instructions, plaintiffs, nevertheless, moved to serve a second amended complaint to add as plaintiffs George Harrison, Richard Starkey and Yoko Ono Lennon, as the executrix of the estate of John Lennon. (Former Beatles member Paul McCartney has chosen not to participate in this action.) Plaintiffs’ motion also sought to supplement the claims to cover the period since commencement of the action in 1979 and to add specific requests for relief to terminate defendants’ rights to manufacture and distribute Beatles’ recordings and to have the master recordings of Beatles’ performances transferred to plaintiffs. Plaintiffs’ motion was, for the most part, granted with the court limiting plaintiffs’ claims for punitive damages to the fraud and conversion causes of action.
The resulting second amended and supplemental complaint sets forth nine causes of action. The first and second causes of action are for breach of the 1969 agreement and the 1973 modification agreement, respectively. The third and fourth causes of action seek declaratory judgments as to plaintiffs’ rights to escalated payments under the 1969 and 1973 agreements, respectively. The fifth cause of action is for fraud. The sixth cause of action alleges breach of fiduciary duty. The seventh cause of action is for conversion. The eighth cause of action alleges an unelaborated "tortious conduct” theory of recovery while the ninth cause of action alleges that defendants have been unjustly enriched by their wrongful acts.
Prior to serving an answer, defendants moved, pursuant to CPLR 3211 (a) (7), to dismiss the third through ninth causes of action for their failure to state valid causes of action. The motion court granted defendants’ motion to dismiss, to the extent of dismissing the third, fourth, fifth, seventh, eighth and ninth causes of action, with leave to replead that part of the fifth cause of action which alleges that defendants fraudu*54lently induced plaintiffs to release the album "Sometime in New York City”. The sixth cause of action was sustained based on the court’s conclusion that the facts pleaded were sufficient to raise "a colorable issue that an informal fiduciary relationship exists” between the parties. Plaintiffs, as limited by their brief and notice of appeal, appeal from the court’s dismissal of the third, fourth, fifth and seventh causes of action. Defendants have not cross-appealed from the denial of their motion to dismiss the sixth cause of action for breach of fiduciary duty.
The motion court did not abuse its discretion in dismissing the third and fourth causes of action for declaratory judgments. A cause of action for a declaratory judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy in another form of action, such as breach of contract. (James v Alderton Dock Yards, 256 NY 298, 305, rearg denied 256 NY 681; Young & Co. v Fleischman, 85 AD2d 571.) Such is the case here. In fact, plaintiffs concede that these causes of action parallel the breach of contract claims and merely seek a declaration of the same rights and obligations as will be determined under the first and second causes of action. Nevertheless, they argue that a declaration from the court as to their future rights to escalated payments under the agreements is necessary, should their contract causes of action fail on the grounds of laches and/or Statute of Limitations.
The laches defense is an equitable defense and applicable, therefore, only to the equitable cause of action for breach of fiduciary duty. Assuming, arguendo, some merit to defendants’ Statute of Limitations defense, the court’s determinations on the breach of contract claims will merely be confined to those periods of time not barred by the applicable Statute of Limitations. Such determinations will still sufficiently guide the parties on their future performance of the contracts, thereby obviating any need for declaratory judgments. Consequently, since the first and second causes of action will provide plaintiffs with a full and adequate alternative remedy, the court did not abuse its discretion in dismissing the declaratory judgment actions.
As to the fifth and seventh causes of action, however, we agree with plaintiffs that those should be reinstated. Except to grant plaintiffs leave to replead the fifth cause of action, insofar as it relates to the inducement to release the album "Sometime in New York City”, the motion court dismissed *55this cause of action for fraud, concluding that as the allegations of fraud were merely part and parcel of the causes of action for breach of contract, there was no fraud action separate and distinct from the actions in contract.
Courts have long grappled with the difficulty of formulating a precise test to determine under what circumstances a party to a contract may be held liable in tort to another party thereto as a result of some clash in the contractual relationship. While no precise test has ever evolved, it has at least been established that the focus is not, as the motion court misapprehended, on whether the tortious conduct is separate and distinct from the defendants’ breach of contractual duties, for it has long been recognized that liability in tort may arise from and be inextricably intertwined with that conduct which also constitutes a breach of contractual obligations. (See, Rich v New York Cent. & Hudson Riv. R. R. Co., 87 NY 382, 397.) Rather, the focus is on whether a noncontractual duty was violated; a duty imposed on individuals as a matter of social policy, as opposed to those imposed consensually as a matter of contractual agreement. Thus, "unless the contract creates a relation, out of which relation springs a duty, independent of the mere contract obligation, though there may be a breach of the contract, there is no tort, since there is no duty to be violated” (supra, at 394).
An oft used example is when a special relationship of "trust and confidence” exists between the contracting parties (such as is typically found between bailor and bailee, lawyer and client, principal and agent, public carrier and passenger or innkeeper and guest), so that born of this relation is a special duty, which, when betrayed, is made actionable in tort (supra, at 394; see also, Charles v Onondaga Community Coll., 69 AD2d 144, 146, appeal dismissed 48 NY2d 650). These socially imposed legal duties are not, however, exclusive to relationships of trust and confidence, but may also arise from special extraneous circumstances and from the "legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud.” (Rich v New York Cent. & Hudson Riv. R. R. Co., supra, at 398; see also, Albemarle Theatre v Bayberry Realty Corp., 27 AD2d 172, 176.)
In Albemarle Theatre (supra), plaintiff, the landlord and owner of a movie theatre, was found to have stated a valid cause of action for intentional destruction of the value of its theatre property by virtue of defendant tenant’s scheme to *56show only low quality movies in order to improve the position of neighboring competitors, while destroying the value of plaintiff’s theatre. This court concluded that such conduct "constituted not only a breach of their contract with the plaintiff, but a violation of their legal common-law duty extraneous to the contract not to act wilfully to destroy the property of another, including the plaintiff” (supra, at 177).
Valid causes of action in tort were also stated in North Shore Bottling Co. v Schmidt & Sons (22 NY2d 171, 179-180) based on allegations that defendant made plaintiff the exclusive distributor of beer in a specific area, intending only to give plaintiff’s territory to a favored party once plaintiff established his business, and in S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp. (108 AD2d 351, 352-355) based on defendant creditor’s unreasonable withholding of its consent required by contract for plaintiff to transfer certain property, ultimately causing plaintiff to sell at a substantially reduced price.
Defendants’ assertions to the contrary, the holdings in these cases are not predicated on one party to the contract acting in concert with third parties to destroy plaintiff’s property or acting to benefit third parties. Such a limitation has never been declared in the case law and would, in fact, be inconsistent with the recent case, Meyers v Waverly Fabrics (65 NY2d 75). There, the Court of Appeals acknowledged both that plaintiff had stated a valid cause of action against the defendant for unfair competition stemming from defendant’s misrepresentation that a design plaintiff sold him was his and that this tort was actionable as against defendant alone, irrespective of whether or not defendant permitted third parties to make uses of the design outside the intent of the contract (supra, at 80, n 2).
Viewed in the context of the above cases, we disagree that the fifth cause of action for fraud merely restates the breach of contract claims. This cause of action is premised on defendants’ improper disposition of Beatles’ recordings and their fraudulent concealment and misrepresentation of those transactions through the rendering of false statements and accountings. Specifically, it is alleged that defendants, who had claimed to have "scrapped”, that is, destroyed as damaged or as not selling, over 19,000,000 Beatles’ recordings, in fact, sold millions of such recordings in secret transactions and pocketed the proceeds. Plaintiffs also allege that defendants distributed an excessive amount of promotional copies of Beatles’ record*57ings, aimed not at gaining any needed publicity for the Beatles, but instead with the design to benefit defendant Capitol Records, who allegedly used the promotional copies as currency to gain promotional advantages for other of its artists. As many of these promotional records were, contrary to the normal practice, not "drilled”, i.e., marked, to prevent retail sale and/or subsequent return to Capitol Records for credit, it is argued that this practice also served to dilute the legitimate market for sale of Beatles’ recordings.
Plaintiffs argue that by these actions defendants have breached the following specific duties extraneous to their contractual obligations: their duties as fiduciaries to plaintiffs; their duties as bailees of Beatles’ recordings; and, their duty to respect plaintiffs’ property rights.
In upholding the sixth cause of action for breach of fiduciary duties, the motion court acknowledged that while the contract did not establish a formal fiduciary relationship, the pleadings were sufficient to raise an issue as to the existence of an informal one. A fiduciary relationship, whether formal or informal, "is one founded upon trust or confidence reposed by one person in the integrity and fidelity of another * * * [and] might be found to exist, in appropriate circumstances, between close friends (see Cody v Gallows, 28 Misc 2d 373) or even where confidence is based upon prior business dealings (see Levine v Chussid, 31 Misc 2d 412).” (Penato v George, 52 AD2d 939, 942, appeal dismissed 42 NY2d 908.)
The business dealings between Capitol Records and the Beatles date back to 1962, when the still unacclaimed Beatles entrusted their musical talents to defendant Capitol Records. It is alleged that this relationship proved so profitable to defendant that at one point the Beatles constituted 25 to 30% of its business. Even after the Beatles attained their remarkable degree of popularity and success, they still continued to rely on Capitol Records for the manufacture and distributing of their recordings. It can be said that from such a long enduring relation was born a special relationship of trust and confidence, one which existed independent of the contractual duties, and one which plaintiffs argue was betrayed by fraud in secretly selling records claimed as scrapped and in diluting the market and exploiting the Beatles’ popularity with excessive distribution of promotional copies to benefit other aspects of defendants’ business. Plaintiffs’ allegations, then, are sufficient to support their claim that an injury separate and *58distinct from the breach of contract has been committed and is actionable as a tort.
Further support for this fraud cause of action rests on plaintiffs’ claims that defendants also breached their duty as bailees of the Beatles’ recordings and their duty to respect plaintiffs’ property rights. Plaintiffs argue that pursuant to certain provisions of the contract they retained ownership rights to the Beatles’ recordings until same were paid for by Capitol Records. During this interim period, Capitol Records was entrusted with the care and custody of these recordings. These claims in conjunction with plaintiffs’ allegations of defendants’ misappropriation of Beatles’ recordings for their own benefit and in total disregard of plaintiffs’ ownership rights, are sufficient to state a valid cause of action for fraud based on violations of duties distinct from defendants’ contractual obligations. (See, Rich v New York Cent. & Hudson Riv. R. R. Co., supra, 87 NY, at 397-398; Albemarle Theatre v Bayberry Realty Corp., supra, 27 AD2d, at 177.) The fifth cause of action should, therefore, be reinstated.
As to the seventh cause of action for conversion, we note that were we limited to reviewing merely the pleadings, which allege that defendants have unlawfully withheld and converted to their own use certain "funds” to which plaintiffs had a superior right of possession, the complaint would be insufficient to state a tort cause of action truly independent of the contract claims, which seek moneys due under the "buy and sell” agreement. (See, Peters Griffin Woodward v WCSC, Inc., 88 AD2d 883, 884.) However, plaintiffs have supplemented these pleadings with additional evidentiary materials, which we may review "to preserve inartfully pleaded, but potentially meritorious, claims” (Rovello v Orofino Realty Co., 40 NY2d 633, 635).
As supplemented by the affidavit in opposition to the motion to dismiss and by the provisions of the 1969 manufacturing and distributing agreement itself, the complaint does allege a valid cause of action for the unlawful conversion of the Beatles’ recordings. Plaintiffs’ argument that they maintained legal title to the records until same were bought by Capitol Records, finds support, as noted above, in the 1969 agreement. Furthermore, the allegations that defendants secretly sold the records to others without making any payments to plaintiffs and that they falsely reported the records as scrapped are sufficient to support a cause of action for conversion.
*59In concluding that the "buy and sell” arrangement was a fiction and that plaintiffs never bought or intended to exercise dominion or control over the records, the motion court clearly went beyond the permissible scope of inquiry on a motion to dismiss for failure to state a cause of action. On such a motion, a court is to deem the plaintiff’s allegations, assertions and documentations as true and draw all favorable inferences in plaintiff’s favor. (Sanders v Winship, 57 NY2d 391, 394.) Under the proper mode of inquiry, it is clear that plaintiffs have made out a valid cause of action for conversion and that the seventh cause of action should also be reinstated.
Accordingly, the order of the Supreme Court, New York . County (Michael J. Dontzin, J.), entered May 1, 1987, which granted defendants-respondents’ motion, pursuant to CPLR 3211 (a) (7), to dismiss the third, fourth, fifth, seventh, eighth and ninth causes of action, with leave to plaintiff to replead the fifth cause of action, insofar as it relates to the inducement to release the "Sometime in New York City” album, should be unanimously modified, on the law, to the extent of denying the defendants-respondents’ motion to dismiss the fifth and seventh causes of action, reinstating those causes of action, and the order should otherwise be affirmed, without costs.
Kupferman, J. P., Sandler and Smith, JJ., concur.
Order, Supreme Court, New York County, entered on May 1, 1987, unanimously modified, on the law, to the extent of denying the defendants-respondents’ motion to dismiss the fifth and seventh causes of action, reinstating those causes of action, and otherwise affirmed, without costs and without disbursements.
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OPINION OF THE COURT
Casey, J. P.
At issue on this appeal is whether General Obligations Law § 9-103, which limits a landowner’s liability when his premises are used for certain recreational purposes, applies to property which is located within the city limits of the City of Amsterdam, Fulton County, and is neither remote nor undeveloped. Based upon the holding of the Appellate Division, First Department, in Russo v City of New York (116 AD2d 240), Supreme Court concluded that the statute did not apply to defendant’s property and denied defendant’s motion for summary judgment. While we agree that the statute is not applicable to defendant’s property, we decline to follow the First Department’s rationale in Russo.
The subject property is located in the vicinity of the intersection of West Main Street (Route 5) and Caroline Street in the City of Amsterdam, near the point where Caroline Street perpendicularly crosses defendant’s railroad tracks. At some time between sunset and 9:00 p.m. on September 29, 1982, plaintiff, who had used the same route earlier to go to the Amsterdam Mall where he shopped and ate dinner, was *64operating his motorized trail bike along a stone and dirt right-of-way, which was 20 to 25 feet wide and ran adjacent to defendant’s railroad tracks. Defendant’s trackmen use the right-of-way to inspect and repair the railroad bed and tracks. Plaintiff alleges that the right-of-way had been used by pedestrians, snowmobilers, motorcyclists, three-wheelers and the operators of other unregistered vehicles for more than the past 10 years. Plaintiff sustained serious physical injury when his trail bike struck a pile of stones, called ballast, throwing him forcibly from the bike.
In Russo v City of New York (116 AD2d 240, supra), the plaintiff was injured while riding his motorbike along a dirt roadway on a strip of undeveloped land, 125 to 230 feet wide, known as the Catskill Aqueduct Lands, which runs the entire length of Westchester County and is traversed by a subsurface aqueduct that is part of the New York City reservoir system. In that case, the court held that "[t]he narrow strip of land on which the plaintiff was injured is located in a densely populated and highly developed area not within the purview of General Obligations Law § 9-103” (supra, at 245). We conclude that neither the size and shape of the property nor its proximity to densely populated and highly developed areas precludes the application of the statute.
Based upon the clear wording of General Obligations Law § 9-103 and its well-established purpose, we conclude that the applicability of the statute hinges upon the determination of whether, based upon all relevant facts and circumstances, the property is "of the type that would ordinarily be frequented by sportsmen engaged in the * * * listed activities” (Ferres v City of New Rochelle, 68 NY2d 446, 453). We reach this conclusion for a number of reasons, not the least of which is the irrationality of a statutory construction which would deprive a landowner of the limited liability of the statute merely because his land, while otherwise suitable for one or more of the enumerated recreational activities, is not located in an area that can be characterized as wilderness, remote or undeveloped.1 Based upon its context in former Conservation Law § 370 when first enacted (L 1956, ch 842), and the nature of the four activities then covered—hunting, fishing, trapping and training of dogs—the Court of Appeals concluded in *65Ferres v City of New Rochelle (supra, at 453) "that the statute was originally envisioned as applying to undeveloped or wilderness areas of the type that would ordinarily be frequented by sportsmen engaged in the four listed activities”. In 1964, the statute was removed from former Conservation Law § 370 and reenacted as part of General Obligations Law § 9-103 (L 1963, ch 576)2 and, thereafter, numerous amendments to General Obligations Law § 9-103 were added to the recreational activities listed in the statute (e.g., L 1965, ch 367 [added hiking]; L 1966, ch 886 [added horseback riding]; L 1968, ch 7 [added snowmobile operation]; L 1971, ch 343 [added motorized vehicle operation for recreational purposes]; L 1972, ch 106 [added bicycle riding]). The current listing includes a total of 18 diverse recreational activities, at least some of which are "less suggestive of wilderness areas” (Ferres v City of New Rochelle, supra, at 453). Indeed, it takes little imagination to perceive the difficulties one might encounter in attempting to ride a bicycle in the type of undeveloped wilderness areas declared by the court in Ferres to be envisioned by the statute as originally enacted. Legislative history confirms that the intent of the various amendments was to expand the recreational activities covered by the statute (see, e.g., Governor’s Bill Jacket, L 1965, ch 367; Governor’s Bill Jacket, L 1971, ch 343), and there is nothing in either the amendments themselves or the legislative history to suggest that the Legislature intended not to expand the type of land covered by the statute to correspond to the enumerated activities. In Ferres, the court recognized that the amendments suggested that such an expansion or broadening was intended by the Legislature.
A conclusion that the Legislature intended to broaden the recreational activities but restrict the type of land covered by General Obligations Law § 9-103 would run counter to the sole purpose of the statute, which "was, and continues to be, to encourage landowners to allow their properties to be used by the public for a limited number of outdoor recreational activities” (Ferres v City of New Rochelle, supra, at 452). How is this purpose served by excluding lands which are otherwise suitable for a listed recreational purpose, merely because those *66lands cannot be characterized as wilderness, remote or undeveloped? To be contrasted is the judicially created exclusion for State or municipally owned, maintained and supervised parks or recreational facilities open to the public (see, e.g., Ferres v City of New Rochelle, supra; Smith v State of New York, 124 AD2d 296; Bush v Village of Saugerties, 114 AD2d 176; O'Keefe v State of New York, 104 AD2d 43). As explained by the Court of Appeals in Ferres v City of New Rochelle (supra, at 451-454), the exclusion is based upon the legislative purpose of General Obligations Law § 9-103; since these parks are already open to the public for recreational uses, including many of the uses listed in the statute, there is no need to encourage the State or municipality to open its land up for public use by giving it the benefit of the statute.3 We see no such rational connection between the statutory purpose of General Obligations Law § 9-103 and an exclusion for land which is not in an undeveloped wilderness area.
Finally, our construction of the statute as encompassing land that is suitable for a listed recreational activity despite its proximity to densely populated and highly developed areas is consistent with prior decisions of this court in which we have applied the statute to lands which clearly were not undeveloped wilderness areas (see, Seminara v Highland Lake Bible Conference, 112 AD2d 630; Mattison v Hudson Falls Cent. School Dist., 91 AD2d 1133). It is also consistent with the approach being taken by the Appellate Division, Fourth Department (see, Hirschler v Anco Bldrs., 126 AD2d 971; compare, Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82 [Moule, J.], with O'Keefe v State of New York, 104 AD2d 43, 52 [Moule, J., dissenting], supra). As the Fourth Department explained in Hirschler v Anco Bldrs. (supra, at 972), "The remoteness or proximity of a defendant’s property to developed land, while possibly a factor to be considered in the *67application of the statute, is not controlling.” We conclude, therefore, that the mere fact that defendant’s property runs through the City of Amsterdam and is not located in an undeveloped wilderness area does not preclude the application of General Obligations Law § 9-103.
Based upon all of the relevant facts and circumstances, however, we hold that defendant’s property is not suitable for the operation of a motorized vehicle for recreational purposes within the meaning of General Obligations Law § 9-103. A railroad bed and system of tracks have been constructed on the property and are used and maintained in the commercial operation of a railroad. Other equipment, either affixed permanently to the property or brought in temporarily, is also used in conjunction with the operation of the railroad. The right-of-way on which plaintiff was riding is not a path through some unused portion of defendant’s property; it is immediately adjacent to the railroad tracks and apparently has the same type of surface as the bed of the railroad tracks. Defendant’s trackmen use it in the performance of their duties for defendant. The portion of defendant’s right-of-way where plaintiff rode his trail bike is an integral part of defendant’s commercial use and development of the property as a railroad. We find that defendant’s property, which was constructed, maintained and used for the commercial operation of a railroad, is not the type of property the Legislature intended to encourage landowners to open up for public recreational use by enacting General Obligations Law § 9-103 and its various amendments (see, Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82, supra; see also, Governor’s Bill Jacket, L 1972, ch 106 [which refers to abandoned railroad rights-of-way]). Our conclusion would be the same irrespective of whether plaintiff’s accident occurred on defendant’s property within the city limits or at some point along similar property outside of the city limits in a more rural or wilderness setting (but see, Cassella v Delaware & Hudson Ry. Co., 133 Misc 2d 128).
Since we agree with Supreme Court that factual issues have been raised concerning plaintiff’s allegations of negligence, the order must be affirmed.
. Conversely, the fact that land, which is otherwise unsuitable for a listed recreational activity, is located in an undeveloped wilderness area should not render the statute applicable.
. While the repeal of former Conservation Law § 370 and its reenactment as General Obligations Law § 9-103 was not intended to effect a change in the law as it then existed (General Obligations Law § 1-201), any inference to be drawn from the context of the statute in the former Conservation Law is no longer available with respect to the construction of the statute as amended after its transfer to the General Obligations Law.
. In Sega v State of New York (60 NY2d 183, 186), the protection afforded by General Obligations Law § 9-103 was held to be "available to the State itself when no fee is charged for pursuing [the listed] activities on publicly owned property”. The Ferres and Sega cases can be reconciled by examining the respective roles of the governmental landowners (see, Governor's Bill Jacket, L 1956, ch 842). In Ferres v City of New Rochelle (68 NY2d 446), the City of New Rochelle was not only the owner of land held open to the public, but it also operated, supervised and maintained various public recreational facilities in its public park. In Sega, on the other hand, the State was merely a landowner which held its land open to the public; the land contained a camping ground with limited improvements and the area was largely unsupervised.
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Harvey, J.
(dissenting). I agree with the majority that General Obligations Law § 9-103 is not limited to wilderness, remote or undeveloped land. I further agree that the test as to whether the property should be afforded the protection of the *68statute is whether it is "of the type that would ordinarily be frequented by sportsmen engaged in the * * * listed activities” (Ferres v City of New Rochelle, 68 NY2d 446, 453). Among the numerous activities listed in the statute are hunting, fishing, trapping, cross-country skiing, motorized vehicle operation for recreational purposes and snowmobile operation (General Obligations Law § 9-103 [1] [a]). Railroad rights-of-way are used extensively by sportsmen, sometimes in wilderness areas and sometimes in more populous areas, for these various activities. Nothing in the statute indicates that such property should be excluded from consideration merely because it is owned or controlled by a railroad company.
The mere fact that this property has a commercial use should not automatically result in General Obligations Law § 9-103 being inapplicable. The focus should be upon the purpose for which the injured party was using the property. Here, it is undisputed that the main use for the property was a commercial one, i.e., providing railroad transportation. This does not, however, detract from the fact that the property was also suitable for recreational use. Indeed, plaintiffs use of the property and his injury were totally unrelated to defendant’s commercial use. Defendant did not gain any commercial profit from allowing plaintiff, or others like him, tó use its right-of-way. Plaintiff was on the property for the purpose of pursuing a recreational activity as defined in the statute.
The Court of Appeals has indicated that General Obligations Law § 9-103 may be considered when an individual is injured while upon railroad property for a recreational purpose (see, Merriman v Baker, 34 NY2d 330, 333-334). When faced with a case with virtually identical facts to the one at bar, Supreme Court found the statute applicable in Cassella v Delaware & Hudson Ry. Co. (133 Misc 2d 128). Further, it merits noting that courts construing similar recreational use statutes in other jurisdictions have likewise found those statutes applicable when individuals were on railroad property pursuing recreational activities (see, e.g., Power v Union Pac. R. R. Co., 655 F2d 1380, 1386-1388; Lovell v Chesapeake & Ohio R. R. Co., 457 F2d 1009, 1010; Lostritto v Southern Pac. Transp. Co., 73 Cal App 3d 737, 746-747, 140 Cal Rptr 905; see generally, Annotation, Effect of Statute Limiting Landowner’s Liability for Personal Injury to Recreational User, 47 ALR4th 262).
I would hold that General Obligations Law § 9-103 is appli*69cable in the instant case. Under that statute, a landowner is liable "for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” (General Obligations Law § 9-103 [2] [a]). Since plaintiff alleged only negligence in his complaint and failed to allege a breach of the standard set forth in General Obligations Law § 9-103,1 would reverse Supreme Court’s order and grant defendant’s motion for summary judgment dismissing the complaint.
Yesawich, Jr., and Mercure, JJ., concur with Casey, J. P.; Harvey, J., dissents and votes to reverse in an opinion.
Order affirmed, with costs.
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Judgment and conviction reversed and new trial granted. Opinion by
Learned, P. J.
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02-04-2022
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OPINION
REGINALD W. GIBSON, Judge:
Introduction
Plaintiff, John C. MacMurray, in this military benefits pay case, initially brought suit, in 1984, in the Chancery Court of the *324Second Judicial District of Harrison County, Mississippi. There he sought a declaration that his missing sister, Marguerite M. Mayden, was still living. Said suit was initiated after the monthly payments that his sister had been receiving, as a result of her husband’s death, from both the Air Force, under the Survivor Benefit Plan annuity program (SBP) ($757.80), and the Department of Health and Human Services ($237.00), had been suspended because of her disappearance. Initially, Mr. MacMur-ray had endeavored to challenge these payment suspensions administratively. But after no action was taken by either agency, he turned to the courts.
The United States, defendant herein, later by motion removed the state court action to the United States District Court for the Southern District of Mississippi in October, 1984. After removal, plaintiff amended his complaint to pursue receipt of the suspended payment amounts from both agencies. The District Court, as a consequence, found that under the Tucker Act, 28 U.S.C. § 1346(a)(2), the amounts involved in Mr. MacMurray’s original claim, being over $10,000, was beyond its statutory jurisdiction.1 Therefore, that court transferred the case to the Claims Court on April 1, 1986.
In this court, plaintiff MacMurray, as the duly appointed conservator of the estate of the missing Ms. Mayden, first requested a finding of entitlement to both back and future payments from both the Air Force and the Department of Health and Human Services. However, in the interim, and before any issues could be resolved, seven years expired from the date of Ms. May-den’s disappearance (ie., on or about May 1,1980), or as of May 1,1987. Consequently, on an appropriate petition, the Chancery Court of Harrison County, Mississippi, thereafter entered an order on May 5,1987, declaring Ms. Mayden to be legally dead. Mr. MacMurray, now as the duly appointed executor under Ms. Mayden’s will, presently seeks the back payments stemming from survivor annuity and social security benefits due from both agencies on behalf of Ms. Mayden’s estate up to the day prior to her presumed demise.
With the foregoing procedural history squarely in mind, this court now has under consideration four motions: (i) plaintiff’s motion for summary judgment; (ii) plaintiff’s motion to strike; (iii) defendant’s motion for partial dismissal; and (iv) defendant’s partial cross-motion for summary judgment.2 Without oral argument and for the reasons given below, the court finds that it must grant defendant’s partial motion to dismiss with regard to plaintiff’s prayer for social security benefit payments; grant plaintiff’s motion to strike; deny defendant’s partial cross-motion for summary judgment; and grant plaintiff’s motion for summary judgment in part, with respect to his Survivor Benefit Plan annuity claim, but only with regard to liability. The quantum issue is reserved for a separate proceeding.
Facts
At his military retirement in 1967, the husband of Marguerite M. Mayden, Colonel James D. Mayden, elected to participate in the Air Force retirement program, i.e., the Survivor Benefit Plan (SBP). The SBP, *325codified at 10 U.S.C. §§ 1447-1455 (1982), provides that the retiree’s surviving spouse shall receive a monthly annuity while the surviving spouse remains alive. Id. at § 1450. Accordingly, Ms. Mayden began receiving annuity payments after her husband died in 1976. Moreover, Ms. Mayden also began receiving widow’s benefits from the Social Security Administration by reason of her husband’s death. The Veterans Administration also made certain benefit payments to Ms. Mayden.
Following thereon, in early May 1980, Ms. Mayden mysteriously disappeared from her home in Biloxi, Mississippi. Two neighbors, Louis Balius and L.L. Bone, saw Ms. Mayden on May 1, 1980, as she drove past them in her car near her home; they swore that she was acting normally and was under no duress (Plaintiff’s Motion for Summary Judgment Ex. 3). Apparently, from the evidence before this court, Messrs. Bone and Balius were the last persons to see Ms. Mayden prior to her disappearance.
Following Ms. Mayden’s disappearance, the Biloxi Police Department conducted an investigation of her home on May 2, 1980. Additionally, the family hired a private investigator to continue the search for Ms. Mayden. As to the condition of Ms. May-den’s residence soon after her disappearance, both parties agree that blood was present in the house. Further, there is uncontroverted evidence submitted by defendant that Ms. Mayden’s ear was also missing from her house and found by police later abandoned at a local motel.
Following the disappearance, plaintiff here, John C. MacMurray was appointed conservator of his sister’s estate in July, 1980 by the Chancery Court of Harrison County, Mississippi. As conservator, Mac-Murray served as a custodian to manage the estate of his missing sister. In this capacity, MacMurray received payments from the SBP, the Social Security Administration, and the Veterans Administration on behalf of Ms. Mayden during 1980. However, in February, 1981 the Air Force suspended the monthly payments due Ms. Mayden, and in December, 1981 the Social Security Administration did likewise. The suspension of the annuity payments by the Air Force came after MacMurray, in his capacity as custodian, submitted the annual Certificate of Eligibility for 1981 on behalf of Ms. Mayden as required by Defense Department regulations.3 On May 5, 1987, the Chancery Court declared Ms. Mayden legally dead, accepted her will into probate, and appointed MacMurray as executor of her estate. Thereafter, and pursuant to motion, plaintiff as executor was substituted for plaintiff as conservator before this court.
Contentions of the Parties
A. Plaintiff
MacMurray bases his motion for summary judgment, regarding his entitlement to the back payment on behalf of the estate of Ms. Mayden of the SBP annuity, on the presumption of continuing life from Ms. Mayden’s disappearance (May 1, 1980) up to the point one day prior to the expiration of the seventh year. As of the next day, the Chancery Court declared Ms. Mayden, by reason of her unexplained and continuous absence for seven full years, to be legally dead. Premised on its motion to strike, plaintiff challenges certain pieces of evidence proffered by the defendant to rebut the presumption of continuing life. Furthermore, plaintiff argues that his submission of the Certificate of Eligibility in 1981 to the Air Force, as the custodian of Ms. Mayden’s estate, was in accordance with the regulations, and, therefore, the suspension of payments was legally erroneous. With reference to the Social Security claim, plaintiff admits that the case may not be properly in this court, i.e., there is a want of jurisdiction, but seeks to persuade *326the court to retain said case as a claim subordinate to the Air Force annuity claim over which this court has jurisdiction, as both claims involve the same facts and the same issues.
B. Defendant
In its partial motion to dismiss, the Unit- • ed States maintains, of course, that the social security claim of plaintiff is outside of the jurisdiction of this court due to a congressional grant of exclusive jurisdiction to the United States district courts. Regarding the annuity claim under the SBP, defendant urges the court to find that the evidence it has submitted persuasively overcomes the presumption of continuing life, as relied on by plaintiff. And, moreover, defendant contends that Ms. Mayden actually died on or about the date of her disappearance, i.e., May 1, 1980. Further, defendant endeavors to resist plaintiff’s motion to strike by arguing that the evidence that it has submitted in support of its cross-motion would be admissible at trial. Finally, the United States argues that the suspension of the annuity payments was consistent with valid regulations since Ms. Mayden failed to submit the mandatory Certificate of Eligibility. The implication here, of course, is that the regulations permit the surviving annuitant, only, to submit said certificate.
Issues
In deciding the motions now before the court, we must focus on the following issues: (i) whether this court has jurisdiction over plaintiffs Social Security claim; (ii) whether plaintiff has met his burden under Rule 56(c) of showing that there are no genuine issues of material fact surrounding his summary judgment motion on the liability issue and that he is entitled to judgment as a matter of law; (iii) whether the contents of the affidavits and police reports submitted by defendant are admissible under Rule 56(e); and (iv) if these documents are admissible, has defendant made a sufficient creditable showing to rebut the legal presumption of continuing life that plaintiff relies on in his summary judgment motion.
Discussion
I. The Social Security Claims
Plaintiff, as the conservator of his missing sister’s estate, collected benefits from the Social Security Administration until the payments were suspended in December, 1981. Now, by this action, MacMurray seeks to challenge the suspension in this court, even though he admits that there has never been a hearing, a final determination, or a written decision by the Social Security Administration issued to him regarding the suspension of the monthly payments. Further, given the transfer of the social security claim to this court along with the Air Force survivor benefit annuity claim by the district court, plaintiff now urges this court to retain jurisdiction over the former claim as one “subsidiary” to the Air Force annuity claim.
Defendant, on the other hand, strongly challenges our power to decide plaintiff’s social security claim. This is so, explains defendant, because the Social Security Act, at 42 U.S.C. §§ 405(g) and (h), clearly establishes exclusive jurisdiction in the United States district courts for challenges under that Act.
In that connection, § 405(g) provides, in pertinent part, as follows:
Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business....
(emphasis added).
Further, § 405(h) provides, in pertinent part, that:
The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be re*327viewed, by any person, tribunal, or governmental agency except as herein provided.
(emphasis added).
In the face of the clear and unambiguous language of said statutory provisions, supra, plaintiff nevertheless urges this court to retain jurisdiction of its social security claim as one subsidiary or ancillary to the Air Force annuity claim. Town of North Bonneville, Washington v. United States District Court, Western District of Washington, 732 F.2d 747 (9th Cir.1984), is cited to by plaintiff as authority for his position. In North Bonneville, the Ninth Circuit considered a mandamus action which challenged the transfer of cases from the district court to the Claims Court. The Ninth Circuit held that cases over which the district court had original jurisdiction by statute could not be transferred to the Claims Court and that the transfer of this type of case was improper. Further, only those claims that did not involve a statutory grant of jurisdiction and specifically involved relief tied to and subordinate to a monetary claim could be transferred. Therefore, it seems clear beyond cavil that North Bonneville gives plaintiff no comfort in his argument because here, in the case at bar, there is a specific statutory grant of jurisdiction of the social security claim in the district court under the Social Security Act, 42 U.S.C. §§ 405(g) and (h). Additionally, the social security claim is a separate claim under a different statute, and such claim is not tied to relief under the SBP annuity claim. Thus, we find that the social security claim must be returned to the District Court for the Southern District of Mississippi inasmuch as we determine that this court does not have jurisdiction over said claim(s) and, moreover, we cannot have jurisdiction conferred upon us by another court. See Diamond v. United States, 228 Ct.Cl. 493, 657 F.2d 1194 (1981).
II. The Survivor Benefit Plan Annuity Claim
On the issue of the SBP annuity entitlement, the court has several motions before it for decision. These include plaintiffs summary judgment motion, defendant’s partial cross-motion for summary judgment, and plaintiffs motion to strike portions of defendant’s evidence proffered in support of its (defendant’s) cross-motion under Rule 56(e). We shall proceed to examine each party’s summary judgment motion separately and rule on plaintiff’s motion to strike in the context of the analysis of defendant’s cross-motion.
A. Plaintiff’s Summary Judgment Motion
In seeking to recover from the government the suspended SBP annuity payments, which allegedly accrued from the date of her disappearance (1981) to one day short of seven years therefrom (1987), and following thereafter Ms. Mayden was declared legally dead, plaintiff must establish two operative facts: (i) that these annuity payments were legally due the estate of Ms. Mayden; and (ii) that Ms. Mayden was deemed to have lived for the entire period, i.e., one day short of seven years from her disappearance in May 1980, as these benefits are only paid while the annuitant is living. 10 U.S.C. § 1450(b).
Said showing must, of course, be made in the context of the standard for summary judgment pursuant to Rule 56(c). In that connection, all materials filed with the court must show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. At the threshold stage of a summary judgment motion, the judge’s function is not to determine truth through weighing conflicting evidence, but rather it is simply to determine whether the movant has met his burden, or whether there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Summary judgment should only be granted when it is clear what the unvarnished truth is. Westlake v. Abrams, 565 F.Supp. 1330, 1337 (N.D.Ga. 1983). That is to say, the court’s function is to consider the evidence to determine whether genuine issues of material fact exist, and not to decide the material conflicting fact issues themselves. United *328States, ex rel Jones v. Rundle, 453 F.2d 147, 150 (3d Cir.1971). See also F.A.R. Liquidating Corp. v. Brownell, 209 F.2d 375 (3d Cir.1954). But prior to determining the existence of material fact issues from the affidavits and other data filed in support of the summary judgment motions, the court must first resolve the threshold issue of the admissibility of the statements contained in the affidavit, etc. under Rule 56(e) and (f). United States v. Hangar One Inc., 563 F.2d 1155 (5th Cir.1977), reh’g denied, 1978. Affidavits that do not meet the standard of Rule 56(e) and (f), of course, have no probative value for purposes of the summary judgment motion. Blossom Farm Products v. Amtraco Commodity Corp., 64 F.R.D. 424 (S.D.N.Y.1974).
To reiterate, supra, plaintiff must establish in its motion that (i) the claimed payments were due Ms. Mayden throughout this seven-year period, and (ii) Ms. Mayden, despite her mysterious disappearance, was also alive during the subsequent seven-year period and just prior to the state court ruling on her death in 1987.
1. Are Any Back SBP Annuity Payments Due The Estate of Ms. Mayden?
The Department of the Air Force, in its letter to MacMurray dated August 4, 1987, admits that the SBP annuity program, established by law, constitutes a claim that may be enforced by the annuitant and that on the annuitant’s death, claim(s) pass to the legal representative who may secure payment to the estate of the deceased of any due and unpaid amounts. Plaintiffs Motion for Summary Judgment Exhibit 5 states as follows:
It has been determined by this Office that the SBP annuity is a payment authorized by law to be paid to the person entitled to receive it and constitutes a claim which may be enforced by such person. The claim is not reduced by the death of the person having the claim but passes to his legal representative, who can prosecute it to judgment. Therefore amounts which are due and unpaid at the annuitant’s death may be paid to the estate of the deceased. 54 Comp.Gen. 493.
See also DOD Manual 1340.12-M, Part 7, Chapter 2. Thus, MacMurray, as Ms. May-den’s legal representative, may enforce the estate’s claim to any due and unpaid annuity amounts.
To determine whether there exist any “due and unpaid” annuity payments, we must turn to the Department of Defense regulations. The applicable regulations governing the continued eligibility of annuitants are found in DOD Manual 1340.12-M, Part 9, Chapter 9, Section A. Under these regulations, the annuitant, custodian, or legal fiduciary is required to annually submit a certificate of eligibility to the Air Force. Id. at para. 90902.4 Failure to furnish the certificate results in the suspension of the payments until satisfactory proof of eligibility is made. Id. at para. 90903.5
Plaintiff claims to have satisfied the foregoing requirement of submitting the eligibility certificate as the conservator of Ms. Mayden’s estate. We agree because, in his capacity as conservator, MacMurray serves as a custodian. Within the decree of the Chancery Court appointing MacMurray as a trustee, the court found that the facts before it, as to the disappearance of Ms. Mayden and her continued unknown whereabouts, served as a basis for the legal conclusion that Ms. Mayden was “physically infirm and unable to care for herself, conserve her interests, or conduct her business.” Decree No. 10159, Chancery Court of Harrison County, Mississippi, Second Judicial District (July 30, 1980). Therefore, the Chancery Court appointed MacMurray to manage her estate and entrusted her *329assets to him. Additionally, Black’s Law Dictionary defines a custodian as one “who has charge or custody of property, papers, etc.” Clearly, MacMurray fits within this definition as he was placed in charge of Ms. Mayden’s property and documents by the Chancery Court. Therefore, based on the findings of the Chancery Court cited above, we hold that MacMurray was acting in the capacity of custodian pursuant to the DOD regulations when he signed and returned the certificate of eligibility on or about February 18, 1981.
Thus, from the uncontroverted record now before us, we find that the requisite eligibility certificate was appropriately filed for the calendar year 1981, and that the annuity payments were due and payable monthly to plaintiff, Ms. Mayden’s duly appointed custodian, for that year. On the other hand, we find nothing in the record that indicates whether MacMurray submitted an appropriate eligibility certificate for each subsequent year, including the year of the adjudication of death, i.e., 1982 to 1987. Therefore, we are constrained to find that such circumstance generates a genuine issue of material fact as to — whether, indeed, subsequent eligibility certificates were in fact submitted to the service finance center as required; and whether any monthly payments are presently due Ms. Mayden’s estate after the calendar year 1981. This fact issue precludes the court from ruling on the quantum of damages in this case beyond the calendar year 1981.
2. Was Ms. Mayden Alive During The Seven Years At Issue?
To prove that Ms. Mayden was alive during the seven years following her disappearance, plaintiff relies on the statutory legal presumption of death that arises at the end of the seven years of continuous unexplained absence and that was the basis of the Chancery Court’s decree of May 5, 1987, declaring Ms. Mayden to be deceased. Plaintiff argues that the statutory presumption of death does not set the specific time of death and, therefore, results concomitantly in the converse presumption of continued life during and throughout the seven years of absence. In short, Mr. Mac-Murray relies on the Chancery Court’s decree of death — that as of May 5, 1987, Ms. Mayden was legally dead — to trigger the presumption of continued life up to May 5, 1987.
The Chancery Court declared Ms. May-den legally dead consistent with the statutory presumption contained in the Mississippi Code of 1972 at § 13-1-23. This statute provides that:
Any person who shall remain beyond the sea, or absent himself from this state, or conceal himself in this state, for seven years successively without being heard of, shall be presumed to be dead in any case where his death shall come in question, unless proof be made that he was alive within that time.
Said presumption of death found operative by the Chancery Court is a legal presumption pursuant to the law of the state of Mississippi based on MacMurray’s satisfactory proof of Ms. Mayden’s unexplained absence for seven continuous years. The party bearing the burden of proof on the issue of establishing death can rely on the legal presumption to establish a prima facie case. Midgett v. United States, 221 Ct.Cl.171, 603 F.2d 835 (1979). A state court judgment must be given the same force and effect by a federal court as by the state in which it was rendered. 28 U.S.C. § 1738 (1982). Id. at 189, 603 F.2d at 845. Thus, we are bound to acknowledge that the presumption of death regarding Ms. Mayden was operative as of May 5, 1987. The statutory legal presumption is rebut-table by specific factual proof; and when credible proof is offered, the presumption disappears and a fact question arises. Id. at 190, 603 F.2d at 846. However, the precise time of death is not established by the legal presumption that Ms. Mayden was deceased at the end of the seven years, and the party (here the defendant) who seeks to benefit from establishing a time specific for the death bears the burden of proving that death occurred at a specific time within the seven years of absence. Id.
*330From the legal presumption of death, plaintiff here relies on Acosta v. United States, 162 Ct.Cl. 631, 320 F.2d 382 (1963), to establish that Ms. Mayden was alive continuously for the seven years up to her statutorily presumed date that she was no longer alive. In Acosta, the wife of a retired serviceman obtained a decree of death from a California state court after her husband had disappeared and whose whereabouts were unknown for seven continuous years. The wife brought suit in the Court of Claims to obtain her husband’s retirement pay for the period of his disappearance up to the date of the state decree of death. As in the case now before the court, the plaintiff in Acosta had to show that her husband remained alive during the seven years of his disappearance because the retirement pay, like the SBP annuity payments, was only payable while the recipient remained alive. Acosta, 162 Ct.Cl. at 635, 320 F.2d at 384.
In the face of the government’s argument that the wife must fail because the state death decree only operated to support a presumption that the missing husband was dead by the end of the seven years, and not that he was presumed to have died on the last day of the seventh year, the Acosta court held that “in pay claims against the Federal Government the normal presumption should be that death occurred at the end of a seven-year period of continued and unexplained absence.” Id. at 636, 320 F.2d at 385. Thus, a presumption of continued life arises from the date of the disappearance up to the end of the last day preceding the 365th day of the seventh year at which the statutory presumption of death surfaces.
Like the presumption of death, the presumption of continued life is rebuttable by creditable evidence that death occurred earlier, i.e., by evidence that the missing person “encountered some specific peril” or “came within the range” of some impending fatal danger. Davie v. Briggs, 97 U.S. 628, 634, 7 Otto 628, 24 L.Ed. 1086 (1878). But, when the evidence proffered to rebut said presumption is legally deficient, then the court should, in such case, rule that the missing individual died at the end of the seven-year period of absence. Acosta, 162 Ct.Cl. 636, 320 F.2d at 385.
The Acosta court applied the rebuttable presumption of continued life up to the end of the seven-year period of absence, following the intent of Congress as demonstrated by the Act of 1942, 56 Stat. 325 presently Title 38 U.S.C. § 108 (1982), to avoid inconsistent results and gaps in the administration of military benefits. Id. Concurring with the rationale of the Acosta court, we are therefore constrained to hold that a rebuttable presumption of life continues here up to the end of the period of seven years of absence and obtains in the case of missing annuitants under the SBP program. Thus, by relying on the state court decree of death, MacMurray has triggered 1 the legal, rebuttable presumption of continued life up to the end of the seven-year period. Therefore, plaintiff has duly made a prima facie case of entitlement to the back payment of the suspended annuities, and the burden of producing specific factual evidence in rebuttal shifts to defendant. Because we find, for the reasons detailed below, that defendant’s evidence is insufficient to overcome the legal presumption of continued life for the seven-year period, we must grant plaintiff’s motion for summary judgment in part, as it applies to liability for payment of the suspended Air Force annuity. However, as stated above, the specific quantum of damages is yet to be established by plaintiff and is subject to compliance with the submission of appropriate eligibility certificates for each year in issue.
B. Defendant’s Partial Cross-Motion And Plaintiff’s Motion To Strike
We next address defendant’s partial summary judgment motion claiming that it has submitted incontrovertible probative evidence that persuasively overcomes the presumption of continued life in Ms. May-den’s case after her mysterious disappearance on or about May 1, 1980. In meeting its burden, both under the summary judgment standard and in rebutting the operative presumption of continued life for the seven-year period, defendant depends, by *331and large, on the unsworn declaration of Robert Payne, who was the then Chief of Detectives for the Biloxi Police Department at the time of Ms. Mayden’s disappearance.6 Additionally, defendant has submitted two police reports, alleging that they document the investigation of Ms. Mayden’s mysterious disappearance.
Plaintiff challenges the efficacy of the evidentiary material proffered by defendant in support of its partial cross-motion by moving to strike portions of Detective Payne's declaration under Rule 56(f) of the U.S. Claims Court. The premise of his position is that these disputed declarations are not based on personal knowledge, are hearsay, are comprised of rank opinions, and, moreover, are inadmissible conclusions.
Rule 56(f) provides, in pertinent part, as follows:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.[7]
(emphasis added).
As is evident from the above, the threshold question of admissibility of proffered evidence must be resolved prior to finding issues of fact or the court’s ruling on the motion. United States v. Hangar One, Inc., 563 F.2d 1155 (5th Cir.1977), reh’g denied, 1978. Moreover, affidavits that fail to satisfy the foregoing three-prong test of Rule 56(f) have no probative value in deciding a summary judgment motion. Blossom Farm Products v. Amtraco Commodity Corp., 64 F.R.D. 424 (S.D.N.Y.1974).
Rule 56(f) sets out three tests to determine whether the contents of an affidavit supporting a summary judgment motion contains admissible evidentiary facts and may be considered by the court. First, under Rule 56(f), the party’s affidavit shall be made on “personal knowledge.” Stated differently, the court may not consider affidavits in support of summary judgment motions that were not made based on the affiant’s personal knowledge. Union Insurance Society of Canton, Ltd. v. Gluckin, 353 F.2d 946 (2d Cir.1965). Affidavits expressing opinions based on reports, without averring personal knowledge, do not set forth facts that would be admissible at trial. Arkansas-Best Freight System Inc. v. Youngblood, 61 F.R.D. 565 (W.D.Ark. 1974). Second, the statements set forth in the affidavit must be facts that would be admissible in evidence in order to comply with Rule 56(f). That is to say, bland con-clusory statements are not admissible evi-dentiary facts and do not comply with the requirements of Rule 56(f). Id. at 952. Third, the affidavit must show affirmatively that the affiant is competent to testify to the matters stated in said affidavit under Rule 56(f).
If an affidavit does not meet all three of the above tests, since Rule 56(f) is in the *332conjunctive, it is subject to a motion to strike. McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir.1972). However, the court shall only disregard the inadmissible portions of a challenged affidavit and shall consider all admissible portions in ruling on a summary judgment motion. Lee v. National Life Assurance Co., 632 F.2d 524, 529 (5th Cir.1980). Even if a defect in an affidavit is not objected to in the motion to strike, the court may, sua sponte, consider that portion of an affidavit as well. Williams v. Evangelical Retirement Homes, 594 F.2d 701 (8th Cir.1979).
With the three-prong test of Rule 56(f) set out before us, the court now focuses on plaintiffs motion to strike defendant’s affidavit of Detective Payne that contains statements regarding the perceived circumstances of the disappearance of Ms. May-den. We grant said motion due to the failure of the challenged portions of the affidavit to meet the foregoing requirements of Rule 56(f). First, the affidavit makes no mention of personal knowledge by Detective Payne of the conditions existing at the residence of Ms. Mayden subsequent to her disappearance. The affidavit is primarily comprised of opinions based on the investigative work of others regarding the presence of human blood, signs of a struggle, human hair “microscopically similar” to Ms. Mayden’s hair, the presence of human blood in the trunk of Ms. Mayden’s car, and the “suspicious circumstances” of Ms. Mayden’s disappearance. Nowhere does the declarant state that he has personal knowledge of the accuracy of the investigation upon which he bases his opinions. Additionally, there are no statements of personal knowledge regarding certain indi-cia found in Ms. Mayden’s car. The affidavit contains numerous conclusions without statements of personal knowledge of the facts behind these conclusions. For example, Payne makes a bald conclusion, with no factual support, that the substance found in Ms. Mayden’s house was human blood. Such statement does not meet the requirements of Rule 56(f). Further, defendant would rely on hearsay statements in the affidavit regarding the reputation of an alleged friend of Ms. Mayden as well as hearsay statements regarding past acts of an alleged associate of the alleged friend. These incompetent hearsay statements also do not meet the requirements of Rule 56(f) as they are not admissible factual evidence. See Barker v. Norman, 651 F.2d 1107 (5th Cir.1981). Finally, nowhere in the declaration does the declarant (Payne) affirmatively show that he is competent to testify regarding the analysis of the substance found in Ms. Mayden’s home or regarding the microscopic analysis of the hair allegedly found in Ms. Mayden’s car.
After applying Rule 56(f), we find that only the following statements survive plaintiff’s motion to strike:
(1) “Ms. Mayden’s car was also discovered to be missing at the time of her disappearance. The car was recovered shortly thereafter at a local motel”;
(2) “Based upon my experience as a police detective and my 17 years law enforcement experience and the investigative facts available to me, it is my opinion that Ms. Mayden’s reported disappearance on or about May 2, 1980, was a result of a criminal act perpetrated against her occurring on or about May 1, 1980”; and
(3) “The attached police reports (two) and the letter of August 10,1981, are accurate copies among documents which are maintained in the files of the Biloxi Police Department.”
For the following reasons, we find that this remaining evidence does not meet the burden of going forward with substantial evidence to the contrary necessary to rebut the legal presumption of continuing life. See O’Brien v. Equitable Life Assurance Society of United States, 212 F.2d 383 (8th Cir.1954), reh’g denied, 1954.
First, the statement regarding the momentary disappearance of Ms. Mayden’s car is not necessarily probative of any operative fact regarding Ms. Mayden’s personal well-being. Second, the opinion statement, although prefaced by a statement of competency, is inadequate alone to support a holding in favor of defendant’s summary judgment motion. Granting of a summary judgment motion based on opinions in an *333affidavit is improper. F.A.R. Liquidating Corp. v. Brownell, 209 F.2d 375 (3d Cir. 1954). The court needs and requires a sufficient factual basis for the granting of summary judgment. Blair Foods v. Ranchers Cotton Oil, 610 F.2d 665 (9th Cir.1980). The declaration is conclusory and is unsupported by admissible facts. See Sartor v. Arkansas Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 729, 88 L.Ed. 967 (1944). Further, Payne does not state that he has first-hand knowledge of the circumstances of the disappearance, only of “investigative facts.” Third, the certification of the two police reports and the letter of August 10, 1981, fail to support defendant's motion. While the certification opens the door for the court to consider the attached documents, an examination of those documents shows them to be unreliable. See Cummings v. Roberts, 628 F.2d 1065 (8th Cir.1980).
The first attached document, allegedly a police report, is unidentified on its face; one of the pages is missing; and the report contains statements comprised of layers of multiple hearsay. While the report, if it were properly identified as a police report, would be admissible as a business record, the statements contained within it made by non-police cannot be given the presumption of reliability and regularity accorded business records because the declarants were not acting in the regular course of business in making their statements to the police officers involved in the investigation. United States v. Snyder, 787 F.2d 1429 (10th Cir.1986), cert. denied, 479 U.S. 836, 107 S.Ct. 134, 93 L.Ed.2d 78 (1986). The second document attached to the declaration of Payne is likewise unreliable because, while the cover sheet identifies it as a service request for the Mississippi crime lab to perform an analysis of hair retrieved from Ms. Mayden’s home, the narrative that followed does not represent such an analysis. Further, the narrative is also replete with multiple layer hearsay statements that must be found to be inadmissible as explained above. Moreover, the cited letter of August 10,1981, is not included in the documents.
With the remaining admissible evidence of defendant before us, the court is constrained to find that defendant has not produced that substantial evidence necessary to overcome the presumption of life that is operative here. Therefore, we must deny defendant’s partial cross-motion for summary judgment.
In conclusion, we note that defendant's pleadings are also insufficient to raise genuine issues of material fact that are necessary to defeat plaintiff’s motion. The court cannot find a genuine issue for trial unless there is competent and adequate evidence favoring defendant, as the non-movant, for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). To resist plaintiff’s summary judgment motion, defendant must set forth specific facts showing that there is a genuine issue for trial. Id. at 248, 106 S.Ct. at 2510. Bald allegations and conclusory statements, if unsupported by specific facts, do not create a genuine issue of fact. Westlake v. Abrams, 565 F.Supp. 1330, 1338 (N.D.Ga.1983); see also Barker v. Norman, 651 F.2d 1107, 1130 (5th Cir. 1981). As stated above, we have found that defendant’s admissible evidence does not meet the requisite standard of substantial evidence required to overcome the legal presumption of continued life; therefore, no jury could reasonably find for defendant in that no genuine issue of material fact surfaces. Finally, defendant’s submissions fall short of constituting specific admissible fact statements. Thus, we must also find that defendant’s supporting documents do not create a genuine issue of material fact for trial that would be the basis for denial of plaintiff’s motion.
Conclusion
For all of the reasons stated above, the court hereby — grants defendant’s partial motion to dismiss the social security claim; denies defendant’s partial cross-motion for summary judgment; grants plaintiff’s motion to strike; and grants plaintiff’s summary judgment motion in part, as to the liability of defendant for back payment of the SBP annuity. Further, we hereby es*334tablish the following schedule for resolving the damages issue regarding the quantum due for back payment of the suspended SBP annuity:
(i) A telephonic status conference is hereby set for Monday, August 22, 1988, at 11 a.m. EDT (10 a.m. CDT).
(ii) The parties are to apprise the court at that time whether the quantum of damages issue can be definitively resolved by stipulation without further proceedings;
(iii) Failing such, the parties shall be prepared to advise the court how they wish to proceed to resolve the foregoing quantum issue(s); and
(iv) If a trial is required, the court intends to expedite same, which will be scheduled for 10 a.m., September 14, 1988, in Mississippi. The court will advise the parties at a later date as to the exact location. Pretrial submissions shall be filed on or before September 9, 1988.
Finally, inasmuch as it seems clear that the plaintiff’s social security claim is within the jurisdiction of the U.S. District Court for the Southern District of Mississippi, pursuant to 42 U.S.C. §§ 405(g) and (h), said claim is hereby retransferred thereto. 28 U.S.C. § 1631.
IT IS SO ORDERED.
. 28 U.S.C. § 1346 (1982) states in pertinent part as follows:
§ 1346. United States as defendant
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of:
******
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978....
(emphasis added).
. The court notes that, in the context of the complex procedural evolution of this case, defendant failed to file an answer prior to filing its partial cross-motion for summary judgment. Notwithstanding, we find this omission to be non-prejudicial.
. Department of Defense (DOD) Manual 1340.-12-M (March 16, 1984), Chapter 9 (Certificate of Entitlement And Report of Existence), Section A (Annual Certificate of Eligibility), para. 90902 (Frequency of Certification), states in pertinent part as follows:
a. Annually. Each year the eligible spouse or custodian or legal fiduciary for a minor child must submit a certificate of eligibility to the service finance center.
. Paragraph 90902 states in pertinent part as follows:
a. Annually. Each year the eligible spouse or custodian or legal fiduciary for a minor child must submit a certificate of eligibility to the service finance center.
. Paragraph 90903 states as follows:
The annuity payment is suspended if the annuitant, custodian, or legal fiduciary fails to furnish the certificate as required. Payments are restarted only after receiving satisfactory proof of eligibility.
. 28 U.S.C. § 1746 provides that unsworn declarations under penalty of perjury may substitute for affidavits:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
******
(2) If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature)”.
. The language of Rule 56(f) of the United States Claims Court tracks the language of Rule 56(f) of the Federal Rules of Civil Procedure; therefore, the cases interpreting Rule 56(f) of the Federal Rules of Civil Procedure are applicable in interpreting Claims Court Rule 56(f).
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01-03-2023
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07-23-2022
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*1039Appeal from a judgment of the Supreme Court (Lawliss, J.), entered January 6, 2012 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Following a new trial ordered after petitioner’s prior conviction was reversed (People v Wallace, 250 AD2d 398, 399 [1998]), petitioner was convicted of three counts of robbery in the first degree. He was thereafter sentenced, as a persistent violent felony offender, to an aggregate prison term of 60 years to life. The judgment of conviction was affirmed on appeal (People v Wallace, 298 AD2d 130 [2002]) and his motion pursuant to CPL 440.10 was denied. Petitioner thereafter brought this application for a writ of habeas corpus contending that the indictment underlying his convictions was invalid. Supreme Court dismissed the application without a hearing and petitioner now appeals.
We affirm. As petitioner could have challenged the validity of the indictment on direct appeal or in the context of his CPL 440.10 motion, habeas corpus relief is unavailable (see People ex rel. Hall v Bradt, 85 AD3d 1422, 1422-1423 [2011]; People ex rel. Reyes v State of New York Dept. of Correctional Servs., 288 AD2d 523, 523 [2001]). Furthermore, we find no extraordinary circumstances in the record warranting a departure from traditional orderly procedure (see People ex rel. McNeil v Bradt, 87 AD3d 1239,1239 [2011], lv denied 18 NY3d 803 [2012]; People ex rel. Jackson v Rock, 67 AD3d 1080, 1080 [2009]). Consequently, Supreme Court properly dismissed the application.
Mercure, J.P., Lahtinen, Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.
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01-03-2023
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01-13-2022
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*71OPINION OF THE COURT
Per Curiam.
Respondent Charles E. Morrison was admitted to the practice of law by the First Department on September 26, 1977. He is a sole practitioner, with an office in Manhattan, and specializes in civil rights litigation.
On October 27, 1987, petitioner Departmental Disciplinary Committee served respondent with a notice and statement of charges alleging the conversion of escrow funds and the failure to return same, in violation of Code of Professional Responsibility DR 1-102 (A) (4), DR 9-102 (B) (4) and DR 9-102 (B) (3); and further alleging the commingling of personal and escrow funds in violation of DR 9-102 (A) and 22 NYCRR 603.15.
The charges stemmed from respondent’s representation of Billie Blair in negotiating an agreement for the sale of Miss Blair’s insider right to purchase an apartment, with an interim sublease. The prospective buyer of the right was a personal friend of Miss Blair, Herbert Fox, who was represented by counsel. At the time that negotiations commenced, both Fox and his attorney were aware that Blair had previously backed out of a similar sublease/sale agreement and that she had several outstanding debts, including rent arrears on the subject apartment.
The necessary documents for the sublease/sale agreement were prepared by Fox’s attorney, and on May 31, 1985, Fox delivered these documents to respondent, together with his personal check in the amount of $4,000, payable to “Charles Morrison, Escrow”. That same date, respondent deposited the check into his escrow account and issued two checks therefrom, one in the amount of $99.86 and the other in the amount of $260, both payable to the New York Telephone Company in satisfaction of Blair’s overdue bills.
On June 3, 1985, Blair and Fox executed, in the presence of respondent, the purchase agreement, which set a price of $20,000 for Blair’s insider rights. Pursuant to the escrow provisions of the agreement, respondent was required to hold the $4,000 in his escrow account either until the landlord issued written consent to Fox’s sublet of the apartment or, absent such consent, for a 45-day waiting period after which the funds were to be returned to Fox. Respondent signed his name on the agreement under the words "Escrow Received”.
On June 3, 1985, respondent also drew two checks, one for *72$100 and the other for $742.94, on his escrow account and made them payable to Blair, who needed money for food and other necessities. Respondent also gave Blair $200 at this time. The $100 check was cashed by Fox for Blair.
The following day, respondent forwarded a sublease application to Blair’s landlord, together with a $2,597.80 check drawn on his escrow account in payment of Blair’s rent. Payment on that check was subsequently stopped and on June 17, 1985, respondent hand delivered a certified check in the same amount drawn on his escrow account and payable to the landlord. This rent check, together with the previous disbursements by respondent to Blair, exhausted the entire $4,000 escrow.
Shortly thereafter, Blair repudiated the purchase agreement, and Fox’s attorney requested the return of his client’s $4,000. Respondent advised the attorney that he could not comply because he had paid the $4,000 to Blair and her creditors. In the next few months, respondent attempted, unsuccessfully, to have Blair either honor the purchase agreement or repay the $4,000.
Pursuant to 22 NYCRR 603.4 (b) and the Committee rules, a Hearing Panel convened on January 15, 28 and February 2, 1987 to hear and receive evidence relating to the charges. Respondent appeared pro se and testified that his disbursement to Blair had been authorized by Fox and his attorney, who were aware that the purchase could not be negotiated without the satisfaction of rent arrears. As proof of Fox’s consent, Morrison noted that Fox had cashed the June 3, 1985 $100 check to Blair.
Although both Fox and his attorney admitted knowledge of Blair’s financial problems, including the rent arrears, they denied that they had authorized invasion of the escrow funds and insisted that they had expected Blair to make other arrangements to meet her obligations.
The second allegation against respondent, which charged commingling of his personal funds with his escrow account funds, was based on respondent’s having deposited personal funds into the escrow account, and then having drawn checks thereon to pay for various personal expenses. Respondent admitted the charge, explaining that his personal account had been levied on by a creditor, and that he was unaware that the commingling violated the court’s rules. There was no evidence that any client moneys were used to pay respondent’s personal obligations.
*73On October 23, 1987, the Hearing Panel issued its report, crediting the version of events testified to by Fox and his attorney, and sustaining the first, as well as the admitted second charge against respondent. The Panel recommended a sanction of suspension for a period of two years.
Petitioner Departmental Disciplinary Committee moves for an order pursuant to 22 NYCRR 603.4 (d) to confirm said Hearing Panel’s report and impose such sanction upon respondent as the court deems appropriate.
After careful review of the record, the court adopts the findings of fact and conclusions of law reached by the Hearing Panel, and imposes the Panel’s recommended sanction. In so doing, we acknowledge that our usual sanction for deliberate invasions of escrow accounts is disbarment, for we have long held that a lawyer who converts his client’s funds is presumptively unfit to remain a member of the Bar. (Matter of Marks, 72 AD2d 399.) In the within matter, however, we find significant and persuasive the Panel’s finding that "while respondent may have acted stupidly, or carelessly, we do not believe that he acted venally,” and that, "not only did respondent not benefit directly from the conversion but he believed that his misconduct would benefit not only his client but also Fox, for, as all concede, if Blair’s rent were not paid, Fox would in all likelihood lose the entire benefit of his bargain”. The Panel also noted that respondent has had no prior disciplinary problems.
In light of the above, we conclude that the within matter is similar to several others in which this court has chosen to forego the penalty of disbarment after concluding that an attorney’s improper handling of escrow funds was done through carelessness and without intent to personally gain thereby. (See, e.g., Matter of Engram, 129 AD2d 115; Matter of Rogers, 94 AD2d 121.)
Accordingly, the Hearing Panel’s findings of fact and conclusions of law issued October 23, 1987, are hereby confirmed, the petition is granted, and respondent Charles E. Morrison is suspended for a period of two years.
Sullivan, J. P., Ross, Carro, Kassal and Smith, JJ., concur.
Respondent is suspended from the practice of law for a period of two years, effective June 10, 1988, and until the further order of this court.
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OPINION OF THE COURT
Per Curiam.
Respondent Robert Vincent Shannon was admitted to prac*94tice as an attorney and counselor-at-law in the State of New York by the Appellate Division, Second Department, on March 26, 1958. He is currently registered with the Office of Court Administration as having a business address in New York at c/o Butler, Fitzgerald & Potter at 315 Park Avenue South, New York, New York.
Petitioner Departmental Disciplinary Committee moves for an order pursuant to 22 NYCRR 603.3 suspending respondent from the practice of law based upon two orders of the New Jersey Supreme Court, dated September 15, 1987 and October 6, 1987. In that regard, it should be noted that respondent has failed to respond to the instant notice of petition, request a hearing or serve a verified statement setting forth evidentiary facts in his defense.
In June of 1987, Bruce M. Schragger, an attorney who had been substituted for respondent as counsel for the estate of Hubert Kreb, informed the Office of Attorney Ethics of the Supreme Court of New Jersey of possible financial improprieties on the part of respondent. Previously, by order dated June 26, 1987, the Honorable Dorothea Wefing, J.S.C., had directed that respondent be replaced as counsel to the Kreb estate, that he turn over all documents and files to Mr. Schragger and that he submit an accounting of all estate funds, including income and disbursements from the date received, within 45 days of the order. Thereafter, in late August of 1987, Mr. Schragger notified the Office of Attorney Ethics that respondent had not complied with Judge Wefing’s order. He further advised that although respondent had been in control of several hundred thousand dollars in Kreb estate funds, personnel at the bank in which the estate checking and savings accounts were maintained had stated that the existing total balances were below $5,000.
Accordingly, the Office of Attorney Ethics made a demand for the production of books and records, directing respondent to appear on September 11, 1987 for an audit at their offices. Respondent, however, failed to appear or contact the Office of Attorney Ethics in any manner, which then brought a petition for emergency relief seeking, among other things, respondent’s immediate suspension from the practice of law. By order dated September 15, 1987, the Supreme Court of New Jersey temporarily suspended respondent and ordered that he show cause on September 28, 1987 why the immediate suspension and restraints imposed by the court should not continue pending the final disposition of outstanding complaints against him at *95the Ethics Committee. When respondent failed to appear on the return date of the order to show cause, the court, by order dated October 6, 1987, continued the suspension and restraints contained in its prior order.
Since respondent has been personally served with this notice of petition and has not responded within the required 20 days (and, indeed, has not responded at all), the motion by the Departmental Disciplinary Committee for an order pursuant to 22 NYCRR 603.3 suspending him from the practice of law for an indefinite period and until further order of this court is granted, effective immediately.
Murphy, P. J., Sandler, Sullivan, Asch and Milonas, JJ., concur.
Respondent is suspended from practice as an attorney and counselor-at-law in the State of New York for an indefinite period and until the further order of this court, effective immediately.
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation, a correction sergeant received confidential information that petitioner was planning to escape from the correctional facility while on an outside trip and was going to have the escorting correction officers assaulted. *1040Consequently, petitioner was charged in a misbehavior report with attempting to escape and engaging in violent conduct. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and testimony of the correction officials familiar with the investigation, as well as the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Gomez v Fischer, 89 AD3d 1341, 1341 [2011]; Matter of Williams v Fischer, 78 AD3d 1353,1354 [2010], lv denied 16 NY3d 706 [2011]). Contrary to petitioner’s claim, the Hearing Officer conducted a proper inquiry to ascertain the credibility and reliability of the information provided by the confidential source by interviewing the correction sergeant who spoke with this individual (see Matter of White v Prack, 94 AD3d 1299 [2012]; Matter of Williams v Fischer, 78 AD3d at 1354). Petitioner’s remaining claims have either not been preserved for our review or are lacking in merit.
Peters, P.J., Rose, Spain, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 29
Docket: Was-16-33
Argued: October 27, 2016
Decided: February 14, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
JOHN S. ZABLOTNY
v.
STATE BOARD OF NURSING
ALEXANDER, J.
[¶1] The State Board of Nursing (Board) appeals from a judgment
entered in the District Court (Machias, D. Mitchell, J.) concluding that John S.
Zablotny had engaged in certain activities that constituted professional
misconduct pursuant to 32 M.R.S. § 2105-A(2) (2016) as alleged by the Board,
but also concluding that the Board had failed to prove other allegations of
professional misconduct. On appeal, the Board contends that the trial court
erred when it concluded that the Board had failed to prove that Zablotny
committed professional misconduct as defined in 32 M.R.S. §§ 2105-A(2)(F)
and (H) when he did not fully inform the on-call physician of—or immediately
notify law enforcement or the patient’s emergency contact about—the
2
conditions under which a patient was leaving the Down East Community
Hospital against medical advice.1 We affirm the trial court’s judgment.
I. CASE HISTORY
[¶2] The tragic events that generated this case are before us on appeal
for a second time. See Zablotny v. State Bd. of Nursing (Zablotny I), 2014 ME
46, 89 A.3d 143.
[¶3] This case arises out of the death of a patient on January 1, 2008,
near the Down East Community Hospital in Machias. Five days earlier, the
patient, who was emaciated and suffered from several ailments, was admitted
1 In its appeal, the Board of Nursing cites 32 M.R.S. § 2105-A(2)(F) and (H) (2016) as the
statutory grounds for discipline that were violated. The Board’s evidence and arguments suggest
that another subparagraph at issue might have been section 2105-A(2)(E) (incompetence in the
practice), though raising subparagraph (E) would not have led to a different result the way the
evidence developed. Subparagraphs (E), (F), and (H) of the section 2105-A(2) grounds for
discipline read as follows:
E. Incompetence in the practice for which the licensee is licensed. A licensee is
considered incompetent in the practice if the licensee has:
1. Engaged in conduct that evidences a lack of ability or fitness to discharge the
duty owed by the licensee to a client or patient or the general public; or
2. Engaged in conduct that evidences a lack of knowledge or inability to apply
principles or skills to carry out the practice for which the licensee is licensed;
F. Unprofessional conduct. A licensee is considered to have engaged in
unprofessional conduct if the licensee violates a standard of professional behavior
that has been established in the practice for which the licensee is licensed;
. . . .
H. A violation of this chapter or a rule adopted by the board.
3
to the hospital with complaints of severe abdominal pain. While in the
hospital, the patient was seen by physicians and several other health
professionals and was treated with large doses of narcotics.
[¶4] On January 1, a physician checking on the patient had no concerns
for his “medical stability” and found no “obvious etiology” for the patient’s
reported pain. After seeing the patient around noon, the physician left the
hospital but remained on call. Later that afternoon, a nurse called the
physician to inform him that the patient was in pain and requested more
medication. Suspecting that the medication could be causing the patient’s
pain, the physician ordered a decrease in the patient’s medications.
[¶5] Around 6:30 p.m., a nurse caring for the patient notified the
nursing supervisor that the patient was confused and needed restraints.
However, the nursing supervisor found the patient to be quiet, lucid, rational,
mentally competent and in no need of restraints. The patient told the nursing
supervisor that he wanted to go home, and the nursing supervisor, knowing
that his family had left, told him that he would have to sign the Against
Medical Advice (AMA) form. When the patient asked for the AMA form, the
nursing supervisor refused based on the patient’s condition and the weather.
4
[¶6] Zablotny arrived at work at 7:00 p.m. as the nursing supervisor for
the evening shift. The day shift nursing supervisor reported to Zablotny her
concerns about the patient and told Zablotny not to let him leave AMA, to
which Zablotny responded that the patient could leave if he signed the form.
[¶7] Zablotny spoke with the patient who stated that he wanted to be
discharged against medical advice. While Zablotny was in the room, the
patient looked out the window and could see that the weather was an “old-
fashioned Nor’ Easter”—bitterly cold, windy, snowy, and stormy.
[¶8] At the time, no physician was present in the unit where the patient
was admitted. Zablotny retrieved the AMA form and called the on-call
physician pursuant to hospital policy. Zablotny explained to the physician
that the patient wanted to leave AMA and that the patient had indicated that
he intended to go to a friend’s house, but Zablotny did not inform the
physician of what the patient wore for clothing or that he intended to walk to
the friend’s house. Based on the information relayed to him by Zablotny, the
physician, who had seen the patient earlier in the day, told Zablotny to “let
him go” and advised Zablotny that if the patient was “a danger to himself or
others, call the police.”
5
[¶9] The patient then signed the necessary paperwork, and at about
8:20 p.m., the patient departed the hospital on foot into blizzard-like
conditions wearing only pants, a button down shirt, and moccasin-style
slippers. At approximately 8:50 p.m., Zablotny located the day shift nurse’s
“daily” report, which had not been properly placed in the patient’s chart and
contained information about suicidal comments made by the patient. In
response to that new information, Zablotny made a series of telephone calls
over the next thirty-five minutes. Zablotny called the patient’s wife, who was
his emergency contact, to inform her that the patient had left on his own
against medical advice. At the patient’s wife’s request, Zablotny called the
Machias Police Department. The next day, police found the patient’s body
buried beneath a foot of snow approximately 380 feet from the hospital’s
entrance. He had died of hypothermia and combined opiate toxicity.
[¶10] The Board initiated an administrative action against Zablotny
pursuant to 10 M.R.S. § 8003(5) (2016) and 32 M.R.S. § 2105-A(1-A)(D)
(2016). Zablotny I, 2014 ME 46, ¶ 6, 89 A.3d 143. After a hearing, the Board
found that Zablotny had violated his professional duties and revoked his
nursing license for two years. Id. ¶ 7. Zablotny appealed the Board’s decision
to the District Court, seeking de novo judicial review pursuant to 10 M.R.S.
6
§ 8003(5). Id. ¶ 8. Reviewing the agency record, the District Court (Romei, J.)
concluded that there was “competent evidence to support the Board’s
findings” and entered a judgment affirming the Board’s decision to revoke
Zablotny’s license. Id. ¶¶ 9-10. Zablotny appealed the District Court’s
decision. Id. ¶ 10. On appeal, we concluded that the District Court erred in
conducting an appellate-type review by relying on the Board’s findings
without conducting a de novo hearing. Id. ¶ 28. We vacated the judgment and
remanded the case to the District Court for further proceedings. Id. ¶ 29.
[¶11] On remand, we directed that “the District Court shall evaluate both
the factual and legal issues afresh and make its own independent,
nondeferential decision. This obligates the court to hear the evidence
presented, independently evaluate the testimony offered, make its own
credibility determinations, and reach its own decision regarding the
revocation.” Id. (citation omitted).
[¶12] The District Court held a four-day hearing in May 2015. The
Board presented several witnesses, including fact witnesses and expert
testimony on the duties nurses owe their patients, and offered the American
Nurses Association Code of Ethics with Interpretive Statements (2001).
7
[¶13] In a detailed written decision, the District Court found that
Zablotny had engaged in unprofessional conduct by failing to provide the
patient with accurate and complete information about the risks he faced upon
leaving the hospital against medical advice. The court further found, however,
that the Board had failed to prove that Zablotny had violated any standards of
care for (1) failing to fully inform the on-call physician of all the conditions
under which the patient was seeking to be discharged and (2) failing to
immediately notify law enforcement or the patient’s emergency contact of his
departure.
[¶14] In making its findings, the court particularly noted (1) the
extensive contacts with the patient during the day shift; (2) the information
that was not available to Zablotny when he allowed the patient to leave,
including the patient’s suicidal statements made during the day; (3) the
physician who had seen the patient during the day told Zablotny to “let him
go;” (4) the call to the Machias Police Department shortly after Zablotny
became aware of the important information in the misplaced “daily” report;
(5) the Board’s and its expert’s concessions that Zablotny lacked any
authority—statutory or otherwise—to prevent the patient from leaving; and
(6) the hospital’s discharge policy, which did not require a nurse to contact
8
anyone other than the attending physician, here the physician who had said
“let him go.”
[¶15] The court imposed a period of suspension of Zablotny’s nursing
license for the violations of professional conduct standards that the court
found to have been committed. Because the period of license suspension
ordered was less than the period of suspension Zablotny had served during
the Zablotny I proceedings, no additional suspension was actually imposed.
[¶16] Following the Board’s motion for reconsideration, the court
issued an order granting the motion in part—by taking judicial notice of
chapter four of the Board’s rules—but denying the motion in all other
respects. On reconsideration, the court found that Zablotny had violated the
Board’s rules for the same reasons it had found that Zablotny committed
unprofessional conduct in its original decision, but the court declined to
impose further sanctions. The Board timely appealed pursuant to M.R. Civ. P.
80C and M.R. App. P. 2(b)(3).
II. LEGAL ANALYSIS
[¶17] We review directly the decision of the District Court because it is
mandated to decide de novo whether any violations of professional standards
have occurred and, if so, to determine whether to suspend or revoke a
9
professional license. See 10 M.R.S. § 8003(5); Zablotny I, 2014 ME 46, ¶¶ 27,
29, 89 A.3d 143.
[¶18] On review of findings of fact, we do not reexamine the record
from the trial court and reach our own decision about the facts; instead, we
conduct a deferential review for clear error, meaning that we will defer to the
fact-finder’s decision as to (1) which witnesses to believe and not believe;
(2) what significance to attach to particular evidence, and (3) what inferences
may or may not be drawn from the evidence. See Cates v. Donahue, 2007 ME
38, ¶ 9, 916 A.2d 941; Stickney v. City of Saco, 2001 ME 69, ¶ 13, 770 A.2d 592;
Sturtevant v. Town of Winthrop, 1999 ME 84, ¶ 9, 732 A.2d 264.
[¶19] A party, such as the Board, that had the burden of proof on an
issue at trial, can prevail when challenging a finding that the party’s burden of
proof has not been met only if the party demonstrates that a contrary finding
is compelled by the evidence. St. Louis v. Wilkinson Law Offices, 2012 ME 116,
¶ 16, 55 A.3d 443; Handrahan v. Malenko, 2011 ME 15, ¶ 13, 12 A.3d 79; Kelley
v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, ¶ 16, 967 A.2d 676.
[¶20] Seeking to avoid these deferential standards of review for
challenges to findings of fact, the Board argues that it does not challenge the
court’s factual findings, but only the court’s legal conclusions. When a trial
10
court judgment or administrative law decision is based on a conclusion of law,
we review the conclusion of law de novo. Goudreau v. Pine Springs Rd. &
Water, LLC, 2012 ME 70, ¶ 11, 44 A.3d 315.
[¶21] When an act is indisputably improper or when the licensee
admits the violation, a professional regulatory board does not need to present
any evidence of the applicable standard to support a finding that the standard
has been violated. Balian v. Bd. of Licensure in Medicine, 1999 ME 8, ¶ 16,
722 A.2d 364. But on the facts of this case, the Board’s asserted violations of
its standards are not so apparent that the undisputed facts establish the
asserted violations as a matter of law.
[¶22] Despite the Board’s arguments, the question of whether certain
facts demonstrate violation of professional standards is a mixed question of
law and fact, as demonstrated by the Board’s presentation of expert
testimony—fact-based evidence—seeking to demonstrate that the rules and
professional standards it enforces had been violated. On review of decisions
regarding application of professional standards, we interpret the meaning of
the identified professional standards de novo as a matter of law, and we
review for clear error the court’s findings of fact to determine applicability of
the professional standards. See Bd. of Overseers of the Bar v. Warren, 2011 ME
11
124, ¶ 25, 34 A.3d 1103; Bd. of Overseers of the Bar v. Brown, 623 A.2d 1268,
1270 (Me. 1993); see also Dionne v. LeClerc, 2006 ME 34, ¶ 15, 896 A.2d 923
(holding that the fact-finder has the prerogative to selectively accept or reject
testimony, including expert witness testimony, even if that testimony is
uncontradicted); In re Fleming, 431 A.2d 616, 618 (Me. 1981).
[¶23] The Board contends that the facts found by the court establish, as
a matter of law, that Zablotny committed unprofessional conduct and violated
Board rules pursuant to 32 M.R.S. § 2105-A(2)(F) and (H) by (1) failing to fully
inform the on-call physician of all the conditions under which the patient was
seeking to be discharged and (2) failing to immediately notify law
enforcement or the patient’s emergency contact of his departure.
[¶24] The District Court’s findings regarding (1) the information and
observations about the patient during the day shift that others knew, but
Zablotny did not know, when he allowed the patient to leave, (2) the
physician’s “let him go” statement, (3) the timing of the call to the police,
(4) the fact, apparently undisputed, that Zablotny lacked authority to prevent
the patient from leaving, and (5) Zablotny’s compliance with the hospital’s
discharge policy for an “against medical advice” discharge that required
communication only with the attending physician, support the conclusion that
12
the District Court was not compelled, as a matter of law, to find that Zablotny
violated Board rules or professional standards of care on the two issues
asserted by the Board on appeal.
[¶25] The findings of fact made by the District Court are supported by
the record, and based on those findings, its conclusions regarding application
of the Board rules and professional standards to the facts do not indicate any
error of law.
The entry is:
Judgment affirmed.
Janet T. Mills, Attorney General, and Andrew L. Black, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellant State Board of Nursing
Joseph M. Baldacci, Esq. (orally), and Eugene M. Sullivan, Jr., Esq., Law Office of
Joseph M. Baldacci, Bangor, for appellee John S. Zablotny
Machias District Court docket number AD-2010-03
FOR CLERK REFERENCE ONLY
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Cite as 2017 Ark. App. 115
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-1001
Opinion Delivered: March 1, 2017
JUAN TERRONES
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. EIGHTH DIVISION
[NO. 60JV-2015-969]
ARKANSAS DEPARTMENT OF HUMAN
SERVICES AND MINOR CHILDREN HONORABLE WILEY A.
APPELLEES BRANTON, JR., JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Juan Terrones appeals the Pulaski County Circuit Court order terminating his
parental rights to his children M.T. and J.T. On appeal, Terrones argues that the circuit
court erred in finding that (1) a statutory ground supported termination and (2) it was in the
best interest of the children to terminate his parental rights. We affirm.
On July 5, 2015, the Arkansas Department of Human Services (“DHS”) exercised
an emergency hold over M.T., J.T., and their half-sibling, K.T., after having received a call
that their mother, Kayla Jackson, 1 had been admitted to Baptist Hospital for seizures. At the
hospital, Jackson expressed suicidal thoughts and admitted methamphetamine use.
1
The circuit court also terminated Jackson’s parental rights. However, she is not a
party to this appeal.
Cite as 2017 Ark. App. 115
On July 8, 2015, DHS filed a petition for emergency custody. The affidavit attached
to the petition stated that DHS had taken an emergency hold of the children based on
Jackson’s inability to care for them, Jackson’s history of methamphetamine use, and the lack
of another proper caregiver. The affidavit noted that the children had been living with
Terrones. On July 8, 2015, the court entered an ex parte order for emergency custody.
On July 14, 2015, the court found probable cause for the emergency custody. The
court listed Terrones as the putative father of M.T., J.T., and K.T. and ordered that paternity
be established by DNA testing.
On August 27, 2015, the court adjudicated the children dependent-neglected. The
court noted DHS’s extensive history with Jackson dating back to 2006. The court found
that the children had been subjected to aggravated circumstances in that it was unlikely that
services to the family would result in successful reunification within a reasonable time. The
court noted that Terrones was not believed to be the father of K.T. and further noted that
he had been on probation for domestic violence against Jackson. The court ordered
Terrones to submit to a psychological evaluation, a drug-and-alcohol assessment, and drug-
and-alcohol screenings; attend parenting classes; and obtain and maintain stable and
appropriate housing. The court noted that Terrones remained married to another woman,
Angel Martin, even though he planned to continue his relationship with Jackson. The court
advised him to get a divorce.
On November 3, 2015, the court held a permanency-planning hearing, and on
December 3, 2015, the court entered a permanency-planning order. In the order, the court
noted that DNA tests reflected that Terrones is the biological father of M.T. and J.T. but
2
Cite as 2017 Ark. App. 115
not K.T. The court further noted that Terrones had tested negative on his drug screens. As
to Jackson, the court noted that she was pregnant and that she had tested positive on a drug
screen. The court found that DHS had made reasonable efforts to provide family services.
The court continued the goal as reunification.
On April 5, 2016, the court appointed Terrones an attorney. On that same day, the
court held a second permanency-planning hearing. And on May 12, 2016, the court entered
a permanency-planning order. 2 In the order, the court found that DHS had made reasonable
efforts to provide family services. The court noted that Jackson had a drug screen with no
temperature reading in March 2016, which the court found indicated deceit. As to Terrones,
the court noted that he had tested negative on his drugs screens and had made some efforts
to comply with the court’s orders. The court further noted that Terrones had submitted to
psychological evaluation but the results were “not favorable.” The court referenced the
results of a home study, which stated,
There is also some indication of possible instability within the relationship with
[Jackson’s] live-in boyfriend [Terrones] as evidenced by their report of no separations
within their relationship yet there is at least one child fathered by someone other
than the boyfriend [Terrones] within the reported time that they have been together.
There is also possible domestic violence noted between them.
....
It is questionable if [Jackson] understands the requirements of any legal placement
with her mother of her youngest child . . . as [Jackson] stated [that] the child will
return to her care when the other children are back here. It is also concerning that
[Jackson] reports a lengthy history of her mother being an alcoholic who apparently
still drinks alcohol although apparently not as significantly as she did during
[Jackson’s] childhood.
2
The permanency-planning order does not list Terrones’s counsel as being present
at the hearing.
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The court again found that the children had been subjected to aggravated circumstances in
that it was unlikely that services to the family would result in successful reunification within
a reasonable time. The court changed the goal of the case to termination.
DHS filed a petition for termination of Terrones’s parental rights on May 16, 2016,
and an amended petition on May 25, 2016. DHS alleged four grounds for termination
against Terrones: (1) the failure-to-remedy-conditions-causing-removal ground pursuant to
Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015); (2) the failure-to-remedy-
conditions-preventing-placement ground pursuant to Ark. Code Ann. § 9-27-
341(b)(3)(B)(i)(b); (3) the aggravated-circumstances ground pursuant to Ark. Code Ann. §
9-27-341(b)(3)(B)(ix)(a)(3); and (4) the subsequent-factors ground pursuant to Ark. Code
Ann. § 9-27-341(b)(3)(B)(vii)(a). On July 11, 2016, the court entered an order substituting
Terrones’s counsel because his previous counsel had a conflict of interest.
On July 12, 2016, the court held a termination hearing. Amanda Joshlin, a social
worker, testified that on March 21, 2016, she visited the home that Terrones and Jackson
shared. She stated that the home was cluttered but not inappropriate; however, she could
not complete a full evaluation of the home because that required two visits, and Jackson had
failed to schedule a second visit.
Following Joshlin’s testimony, DHS introduced into evidence Terrones’s
psychological evaluation. The “impression” section of the evaluation stated the following:
Based on the evaluation, Mr. Terrones is functioning within the lower end of
the low average range of intellectual development in comparison to the normed
sample. He presented with the intellectual capability to parent. However, a limiting
factor is his limited use/comprehension of English.
He minimized trust issues in his relationship with Ms. Jackson. He identified
limited awareness and/or appreciation of factors associated with her drug use. His
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statement that she is no longer using drugs in tandem with some of the items in the
testing is naive.
In my opinion, Mr. Terrones provided limited understanding of Ms. Jackson’s
issues and reasons for use other than his assumption that she uses for
fun/recreationally. He had difficulty understanding what medications or
prescriptions she is taking and evinced limited understanding of the potential for
abuse of medications.
Based on logistical issues in the ultimate care of the children, the elevation on
the child domain on the PSI and possible overuse of alcohol (alluded to on the PAl
and elevated defensiveness score on the SASSI-3), Mr. Terrones would be unable to
independently parent, in my opinion.
Ancillary involvement would be indicated, however. Additional information
regarding his potential for alcohol abuse would be needed.
Mr. Terrones did not appear capable of independent parenting at this point.
Developing a plan for the children to be sufficiently monitored and/or supervised
would be necessary given [Ms. Jackson’s] penchant for substance abuse. Slow
reunification following implementation of the following recommendations would be
indicated, as a result.
Felicia Carter, the Pulaski County DHS supervisor, then testified that she
recommended terminating Terrones’s parental rights. She testified that Terrones had failed
to complete all services. She recognized that he had completed the psychological evaluation
and attended individual counseling but noted that he had not completed a drug-and-alcohol
assessment and that DHS had made three referrals. She also stated that she had no
documentary evidence that he had completed parenting classes. She noted that he had tested
negative on all his drug screens but had failed to show for a May drug screen. Carter stated
that Terrones had visited the children twelve times since November but after May 18, he
had stopped visiting. She testified that Jackson and Terrones had a child on April 15, 2016,
S.T., and that S.T. had tested positive for benzodiazepines, amphetamines, and
methamphetamine. She also pointed out that Terrones and Jackson are still married to other
people and that Terrones is the father of M.T., who was born in 2012, and J.T., who was
born in 2015; however, he is not the father of K.T., who was born in 2013.
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Carter stated that her major concern with Terrones is his undocumented-citizenship
status. The court then noted that it “would never terminate parental rights because
somebody was undocumented, although sometimes being undocumented does add some
other issues to be concerned about.” Angela Brown, an adoption specialist, testified that the
children are adoptable.
Terrones then testified that he works in construction and averages a forty-hour
workweek. He noted that his income is about $2,000 per month. He testified that he had
consistently visited his children, and any absences were a result of work. He stated that he
had attended three parenting classes and had completed therapy sessions.
Terrones recognized that he and Jackson had another child following the removal of
M.T. and J.T. and that the child had tested positive for drugs at birth. He knew Jackson was
a drug user, but he had maintained a relationship with her. He explained that when DHS
opened the case in July 2015, he was on probation for domestic abuse against Jackson. He
blamed her for the dispute. He testified that he and Jackson had ended their relationship
about twenty-two days prior to the hearing and that she was now living with another man.
He noted that he remained in the house that he and Jackson had shared and that her name
is on the lease; he did not know whether his name is also on the lease. He stated that if he
received custody of his children, he would not allow Jackson to see them. He explained that
his mother-in-law, Jackson’s mother, could help him with the children and that if he had
immigration problems, she could care for them. He further noted that he is still married to
another woman but he had not spoken to her in five years. He asked the court for additional
time to complete the case plan.
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Following the hearing, on August 11, 2016, the court entered an order terminating
Terrones’s parental rights based on the failure-to-remedy-conditions-causing-removal,
aggravated-circumstances, and subsequent-factors grounds. The court cited Terrones’s
psychological evaluation. The court also found that Terrones was not a credible witness and
that it did not believe that he had ended his relationship with Jackson. The court further
found that it is in the best interest of the children to terminate his parental rights. The court
considered the testimony of Brown that the children are adoptable. The court also
specifically considered the potential harm to the health and safety of the children caused by
returning the children to Terrones’s custody.
Following the entry of the termination order, Terrones filed a notice of appeal. On
appeal, he argues that the circuit court erred in finding that (1) a statutory ground supported
termination and (2) it was in the best interest of the children to terminate his parental rights.
An order forever terminating parental rights must be based on clear and convincing
evidence that termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3)(A).
In determining whether termination is in the child’s best interest, the circuit court must
consider the likelihood that the child will be adopted if the termination petition is granted
and the potential harm, specifically addressing the effect on the health and safety of the child,
caused by returning the child to the custody of the parent, parents, or putative parent or
parents. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) and (ii). Additionally, DHS must prove at
least one statutory ground for termination by clear and convincing evidence. Ark. Code
Ann. § 9-27-341(b)(3)(B). We do not reverse a termination order unless the circuit court’s
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findings were clearly erroneous. Meriweather v. Ark. Dep’t of Health & Human Servs., 98 Ark.
App. 328, 255 S.W.3d 505 (2007).
Terrones argues that the court erred in finding that the failure-to-remedy-
conditions-causing-removal, the aggravated-circumstances, and the subsequent-factors
grounds supported termination. We first address Terrones’s argument concerning the
subsequent-factors ground.
The subsequent-factors ground requires
[t]hat other factors or issues arose subsequent to the filing of the original petition for
dependency-neglect that demonstrate that placement of the juveniles in the custody
of the parent is contrary to the juveniles’ health, safety, or welfare and that, despite
the offer of appropriate family services, the parent has manifested the incapacity or
indifference to remedy the subsequent issues or factors or rehabilitate the parent’s
circumstances which prevent the placement of the juvenile in the custody of the
parent.
Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a). Accordingly, the subsequent-factors ground
for termination consists of multiple elements. Bell v. Ark. Dep’t of Human Servs., 2016 Ark.
App. 113, 484 S.W.3d 704. First, this ground requires that subsequent issues arose after the
original petition had been filed that demonstrate that it is contrary to the juvenile’s health,
safety, or welfare to place the juvenile with the parent. Id. Second, appropriate family
services must have been offered. Id. Third, there must be evidence that the parent is
indifferent or lacks the capacity to remedy the subsequent factors or rehabilitate the parent’s
circumstances that prevent placement of the juvenile with that parent. Id. Terrones
challenges the second and third elements.
As to the second element, Terrones argues that DHS failed to offer appropriate family
services in the form of English classes and assistance in gaining a legal immigration status.
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Terrones concedes that he did not raise the issue to the trial court; however, he argues that
DHS has an affirmative duty to prove appropriate services at the termination hearing as
proof of the subsequent-factors ground.
This court has held that when a circuit court makes factual findings in an earlier
order, DHS does not have an affirmative to duty to reprove factual findings at a termination
hearing. See Yarbrough v. Ark. Dep’t of Human Servs., 2016 Ark. App. 429, 501 S.W.3d 839;
Contreas v. Ark. Dep’t of Human Servs, 2015 Ark. App. 604, 474 S.W.3d 50. In this case, at
the April 10, 2015 permanency-planning hearing, the circuit court found that DHS had
made reasonable efforts to provide services. Thus, DHS did not have to reprove those
findings at the termination hearing.
Terrones asserts that he did not have a meaningful opportunity to object to the
court’s appropriate-services finding because he did not have effective counsel until July 11,
2016, the day before the termination hearing. However, Terrones had counsel at the
termination hearing. See Yarbrough, 2016 Ark. App. 429, 501 S.W.3d 839 (holding that a
parent waived the issue of whether appropriate services were provided to him when he did
not object at the termination hearing even though the finding was made at a previous
permanency-planning hearing). Further, to any extent that Terrones is making an
ineffective-assistance-of-counsel claim, we will not consider a claim for ineffective assistance
of counsel unless the issue was first raised in the circuit court. See Taffner v. Ark. Dep’t of
Human Servs., 2016 Ark. 231, 493 S.W.3d 319.
As to the third element, Terrones argues that DHS offered insufficient proof that he
manifested an indifference or inability to remedy the conditions that prevented placement.
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We disagree. The evidence showed that Terrones did not complete the case plan, that he
maintained a relationship with Jackson throughout the majority of the proceedings, that
they had separated only twenty-two days before the hearing, that they had a history of
returning to their relationship, and that Jackson posed a serious risk to their children as result
of her drug use. Terrones’s psychological evaluation stated that he had a “naive” perception
of Jackson’s drug problem, and Jackson and Terrones had a third child born during the
pendency of the proceedings who had been exposed to methamphetamine. See Tadlock v.
Ark. Dep’t of Human Servs., 2009 Ark. App. 841, 372 S.W.3d 403 (affirming a termination
of a father’s rights when he continued his relationship with the mother who had an
unresolved drug problem so severe that she tested positive for drugs after giving birth to the
child despite having received treatment). Accordingly, we hold that the evidence is sufficient
to show that Terrones manifested an indifference or inability to remedy the conditions that
prevented placement and that the circuit court did not clearly err in finding that the
subsequent-factors ground supported termination. Because only one ground is required for
termination, we need not address Terrones’s arguments concerning the court’s finding of
the failure-to-remedy-conditions-causing-removal and the aggravated-circumstances
grounds.
Terrones also argues that the court’s best-interest finding must be reversed. He does
not challenge the adoptability prong but asserts that the evidence is insufficient to
demonstrate a potential harm of returning the children to Terrones’s custody. He complains
that the circuit court included only a blanket statement in the termination order that it had
considered the potential harm without any elaboration.
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We disagree. The potential harm to the child is a factor to be considered, but a
specific potential harm does not have to be identified or proved by clear and convincing
evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. The
potential-harm analysis is to be conducted in broad terms. Id. It is the “best interest” finding
that must be supported by clear and convincing evidence. Id. Thus, the court was not
required to identify a potential harm that would result by placing the children with
Terrones. Moreover, the evidence supporting the subsequent-factors ground also supports
the court’s best-interest determination. Accordingly, we hold that the circuit court did not
clearly err in finding that termination of Terrones’s parental rights was in the best interest
of M.T. and J.T.
Affirmed.
VIRDEN and GLADWIN, JJ., agree.
Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.
Andrew Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor
children.
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation, a correction sergeant received confidential information that petitioner was planning to escape from the correctional facility while on an outside trip and was going to have the escorting correction officers assaulted. *1040Consequently, petitioner was charged in a misbehavior report with attempting to escape and engaging in violent conduct. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and testimony of the correction officials familiar with the investigation, as well as the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Gomez v Fischer, 89 AD3d 1341, 1341 [2011]; Matter of Williams v Fischer, 78 AD3d 1353,1354 [2010], lv denied 16 NY3d 706 [2011]). Contrary to petitioner’s claim, the Hearing Officer conducted a proper inquiry to ascertain the credibility and reliability of the information provided by the confidential source by interviewing the correction sergeant who spoke with this individual (see Matter of White v Prack, 94 AD3d 1299 [2012]; Matter of Williams v Fischer, 78 AD3d at 1354). Petitioner’s remaining claims have either not been preserved for our review or are lacking in merit.
Peters, P.J., Rose, Spain, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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OPINION OF THE COURT
Asch, J.
This is an application by appellate counsel to be permitted *103to withdraw. Since this particular motion raises questions which are likely to recur, we feel it appropriate to explain the obligations of counsel on such an application.
The assigned counsel states that he has complied with People v Saunders (52 AD2d 833) by making a thorough examination of the record, and concludes that the appeal does not present any nonfrivolous issues. In a 21-page brief, counsel gives a summary of the hearing and trial testimony, without any reference to objections raised by the defense or ruled upon by the court. His discussion and analysis of the issues raised in approximately 1,000 pages of transcript is compressed into a few conclusory paragraphs asserting that there are no nonfrivolous issues which might be advanced on appeal.
Assigned counsel, who files such Anders-Saunders brief (Anders v California, 386 US 738; People v Saunders, supra) seeking to withdraw, has an obligation not only to investigate the possible merit of any issues, but also to indicate the reasons why he concludes they lack merit (People v Lowery, 86 AD2d 537). All matters in the record which might arguably support the appeal should be identified and discussed (see, People v Gonzalez, 47 NY2d 606, 611).
Counsel, in a supplemental letter submitted to this court, includes a copy of his letter to defendant dated May 12, 1986, which does address and discuss several possible issues.
He expresses his opinion that these issues are not meritorious. Counsel asserts that he intentionally refrained from any discussion of these issues in his brief because of his understanding of the holding of People v Vasquez (70 NY2d 1). In that case, appellate counsel argued upon appeal that one issue raised by his client had substantial merit but then identified and rejected nine remaining points the defendant wished to assert, as lacking in merit. The Court of Appeals held that by doing so, counsel affirmatively undermined arguments his client wished the court to review, thereby denying defendant effective assistance of counsel.
However, in People v Vasquez (supra), the procedure set forth by the Court of Appeals applies only where counsel determines that one or more issues raised by his client have substantial merit: “The procedure to be followed by appellate counsel when a client requests that several points be presented to the court, some with merit and some with none, is to argue the claim found meritorious and make no comment *104about claims considered frivolous. As to them, counsel should instruct his client why he believes the points frivolous and advise him that if he still thinks they should be addressed, defendant may file a pro se brief with the court.” (People v Vasquez, supra, at 4). Where, on the other hand, counsel determines the appeal is " 'wholly frivolous’ ”, he must file an Anders-Saunders brief in accordance with the principles set forth above (see, People v Vasquez, supra, at 3).
The fact that assigned counsel’s letter to defendant discussed possible issues does not meet the formal requirements of an Anders-Saunders brief, and we decline to consider it in conjunction with the appellate brief to remedy the latter’s defects. Likewise, defendant’s pro se supplemental brief raising possible issues cannot substitute for the "single-minded advocacy of appellate counsel” (People v Casiano, 67 NY2d 906, 907).
Accordingly, the appeal from the judgment of the Supreme Court, New York County (Burton Roberts, J.), rendered on-April 27, 1983, convicting defendant, after jury trial, of murder in the second degree, attempted robbery in the first degree and attempted robbery in the second degree and sentencing him, as a predicate felony offender, to concurrent terms of 20 years to life for the murder, from IVz to 15 years for the attempted first degree robbery, and from 3Vi to 7 years for the attempted second degree robbery, should be recalendared for hearing before a new panel of this court comprised of those Justices hearing appeals on the day of argument hereof, the motion by assigned counsel to be relieved should be granted, without compensation, and new counsel should be assigned.
Kupferman, J. P., Ross, Kassal and Ellerin, JJ., concur.
Assigned counsel relieved without compensation, new counsel assigned and argument of the appeal from a judgment of the Supreme Court, New York County, rendered on April 27, 1983, recalendared for hearing before a new panel.
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OPINION OF THE COURT
Mercure, J.
Defendant was indicted on various counts of promoting prostitution in connection with his involvement with Diane Lyman and a 15-year-old girl during October and November 1982 at the Skylane Motel in the Town of Colonie, Albany County. Based upon statements made by Lyman and the girl, Detectives Alden Manion and Joseph Hedgeman of the City of Albany Police Department went to defendant’s house for the purpose of effecting a warrantless arrest of defendant. They knocked on defendant’s door, identified themselves as police officers and told defendant that they wanted to speak with him. In response, defendant came out the front door, closing it behind him, and the detectives placed him under arrest.
Defendant was then transported to the Detective Division of the Albany Police Department where, after having his Miranda warnings read to him, he was interviewed by the detectives. The conversation was taped and played for the jury at trial. Prior to trial, Manion and Hedgeman obtained a search warrant authorizing a search of defendant’s home and automobile for pictures of Lyman and the girl, a headboard from a bed and a "pimp stick”. In executing the search warrant, the detectives illegally seized a diary and pictures of another woman from defendant’s home. Although County Court suppressed the illegally obtained evidence, it ruled that the evidence would be available for impeachment purposes if defendant testified at trial.
Although a number of assertions of error are advanced by defendant, many need not be considered because we find that County Court committed reversible error in receiving the tape-recorded interview into evidence without redaction. Substantial portions of the tape-recorded interview of defendant contained statements about unconnected, uncharged prior criminal and bad acts or unsavory associations, offered for the purpose of establishing defendant’s commission of the charged crimes. The bulk of the interview consisted of questions and answers concerning numerous pimps and prostitutes in Sche*107nectady County, ostensibly for the purpose of obtaining evidence of their criminal activities, which had no relevance to the charges against defendant and which revealed defendant’s intimacy with this disreputable element of society and thereby provided evidence of guilt by association. The tape also contains admissions of defendant’s involvement with prostitutes in 1975, some seven years prior to the crimes charged in the indictment, and reference to the fact that he was in jail on unrelated charges in June and July 1982, just months prior to the subject occurrences. The taped conversation was a rambling, often incomprehensible, discourse covering a period of years with the greater portion of the information being supplied by the police officers’ comments and questions and not by defendant’s responses.
Proof of prior uncharged crimes may not be offered to show defendant’s bad character or his propensity toward 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. Proof of uncharged crimes may be relevant to show intent, motive, knowledge (absence of mistake or accident), common scheme or plan, or identity of the defendant (People v Lewis, 69 NY2d 321, 325). Even these so-called Molineux exceptions (People v Molineux, 168 NY 264) are subject to further limitation. Of greatest relevance here is the requirement that the evidence not only be probative of the crime charged, but also that its probative value outweigh its potential for prejudice (see, People v Ely, 68 NY2d 520, 529).
We cannot see that defendant’s familiarity with pimps and prostitutes and his own experience "in the life” in 1975 is relevant to show (1) intent, since intent can be inferred by the very act of promoting prostitution, (2) motive, as the motive for promoting prostitution is obviously financial reward, (3) knowledge, because one could hardly promote prostitution by mistake or accident, (4) common plan or scheme, as there is no evidence of a common scheme or plan to commit a series of crimes including the ones for which he is being tried (cf., People v Branch, 128 AD2d 950, 953), or (5) identity, since identity is not in issue here. Further, even if relevant to prove some element of the crimes charged, the subject evidence should have been excluded because of its limited probative value when compared to its potential for prejudice and the unacceptable danger that the jury might condemn defendant because of his past criminal behavior and associations and not *108because he is guilty of the offense charged (see, supra, at 952; Richardson, Evidence § 170, at 139 [Prince 10th ed]). Further, the evidence of poor character could not be admitted because the prosecution may not prove defendant’s bad character unless and until defendant has introduced evidence of his good character (see, Richardson, Evidence § 150, at 121 [Prince 10th ed]). At the time when the evidence was offered and received, defendant had offered no evidence at all.
Since the few relevant and admissible references to defendant’s involvement with Lyman and the 15-year-old girl were easily separable from the balance of the tape, there was no reason not to redact this prejudicial, irrelevant and improper evidence (see, People v Crandall, 67 NY2d 111). Further, in view of the content of the conversation and the prosecutor’s extensive reference to the improperly admitted portions in his summation, the error cannot be considered harmless (see, People v Crimmins, 36 NY2d 230). Accordingly, the matter must be remitted for a new trial.
Because the issues may be expected to arise again, we comment briefly on some of defendant’s other contentions. The contention that the warrantless arrest of defendant was unlawful may be disposed of summarily as we have recently held that a warrantless arrest outside of the home is lawful even when a defendant is induced to leave the home by noncoercive subterfuge (see, People v Roe, 136 AD2d 140, 143 see also, People v Kozlowski, 69 NY2d 761, 763), although we are not at all convinced that duplicity was employed here. With respect to employment of the diary and photos for impeachment purposes, it should be noted that a finding that such use is not prohibited by their illegal seizure (see, United States v Havens, 446 US 620) is not equivalent to a finding that they are legally admissible. Impeachment by evidence of prior or subsequent acts of promoting prostitution found in the diary could well have the effect, as did the improperly admitted tape recording, of proving defendant’s commission of the charged offenses by evidence of similar crimes or bad acts (see, People v Ocasio, 47 NY2d 55; People v Dickman, 42 NY2d 294; People v Sandoval, 34 NY2d 371). Further, the greater part of the diary and the photographs would seem irrelevant to any possible issue raised at trial. However, we cannot anticipate the evidence which shall be offered upon retrial of defendant and shall not, accordingly, rule that the material contained in the diary and photos cannot be used on cross-examination under any circumstances. That determination will be left to County Court’s *109discretion based upon the factual setting then present. The search warrant had no discernible probative value, and its admission into evidence should have been denied as irrelevant. Finally, viewing such of the evidence as was properly admitted in a light most favorable to the People (see, People v Marin, 65 NY2d 741, 742) and considering that it is the province of the jury to assess the credibility of witnesses (see, People v Ianniello, 36 NY2d 137, 142, cert denied 423 US 831), we conclude that there is sufficient evidence to support the jury’s verdict.
Kane, J. P., Weiss, Levine and Harvey, JJ., concur.
Judgment reversed, on the law, and matter remitted to the County Court of Albany County for a new trial.
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OPINION OF THE COURT
Per Curiam.
After an investigation initiated in this court, the Departmental Disciplinary Committee (DDC) has moved for an order revoking respondent’s admission to the practice of law. Respondent was admitted in the First Department on July 7, 1970.
The motion is made pursuant to Judiciary Law § 90 (2), and is predicated upon respondent’s failure to comply with the Rules of the Court of Appeals for the admission of attorneys, as amended January 1, 1970, and upon his failure to disclose to this court that he had not complied with those rules.
On May 13, 1970, respondent filed with this court’s Committee on Character and Fitness a sworn application for admission, to which he attached a certificate issued by the New York State Board of Law Examiners, dated March 17, 1970, permitting respondent to apply for admission to practice in New York without obtaining a passing grade on the Bar examination. The application to the Board of Law Examiners for the certificate of dispensation was apparently destroyed many years ago and is not available for review. The DDC’s motion is supported, however, by other available documents, such as respondent’s law school records, his application for admission filed with this court, and copies of 1970 letters, received after the return date of the motion, from the then Associate Dean of New York University School of Law to the State Board of Law Examiners and to respondent.
Former part 526 of the Rules of the Court of Appeals (22 NYCRR) relieved certain otherwise qualified candidates for admission to the Bar from taking the Bar examination if certain qualifications were met. An applicant had to have served in the Armed Forces for at least 12 months after January 1, 1963, and been honorably discharged; at the time of his induction he had to have been a resident of the State for the preceding six months; after January 1, 1963 and after completing in an approved law school two thirds of the requirements for graduation, his course of law school study had to have been interrupted by active service in the Armed Forces for at least 12 months; or after graduating he was prevented from taking two examinations following the comple*112tion of his requirements for graduation by active service in the Armed Forces.
While respondent met certain of these requirements, he apparently was not eligible under two of the conditions. When he left law school in May 1964, at the end of his second year, he was "dropped for poor scholarship”, according to a certificate signed by the acting Associate Dean of New York University School of Law. Thus, his law school studies were not "interrupted by active service in the armed forces”. He did not enter the United States Air Force, voluntarily, until April 1965, approximately 11 months after he had been academically dismissed.
Furthermore, when respondent left law school he had not completed two thirds of his academic requirements. While he had taken 57 of the 80 course hours required for graduation, he had failed two of these courses (6 hours) and obtained unsatisfactory grades in another eight courses (22 hours). When he returned to law school in 1968, as a condition of readmission, respondent had to make up these courses. He graduated in February 1970.
In response to the petition respondent requested assignment of counsel. On December 28, 1987, we denied the application with leave to renew upon a proper showing and directed respondent to respond to the application to revoke his license within 30 days. The day after the order was issued this court received a letter from respondent in which he acknowledged his ineligibility for assignment of counsel, and requested a reasonable time to respond to the petition. We have now received his affidavit in opposition, as well as the DDC’s reply.
Respondent argues that this court cannot revoke a certificate issued by the State Board of Law Examiners, and that he did not lie to the Board in obtaining the certificate. He denies the allegations in the moving papers, and concludes by arguing that this application has been brought only because he has been charged with a notorious crime. Noteworthy is his complete failure to deny the DDC’s claim that he was ineligible for the part 526 waiver of the Bar examination requirement.
Judiciary Law § 90 (2), upon which the DDC relies, provides that this court is "authorized to revoke [the admission to practice of an attorney] for any misrepresentation or suppression of any information in connection with the application for admission to practice.” We note also that the application *113which respondent submitted to the Committee on Character and Fitness contains a warning to the effect that the suppression of any information could lead to revocation of the license to practice. Thus, the issue before us is whether respondent misrepresented or suppressed any information in connection with his application.
This case presents, to say the least, a novel situation. On the basis of all the documents before us, respondent was clearly ineligible for admission without having passed the Bar examination because, as already noted, he had not met the minimum requirement of part 526 in two important respects. In his papers here he has not disputed any of the underlying facts, but does deny, generally, having made any misrepresentations in his application for a certificate waiving the passing of the Bar examination. Unfortunately, as already noted, the application to the State Board of Law Examiners, which issued the waiver, is no longer available. Thus, we do not know the nature of the precise personal representations respondent actually recorded on his application.
The two letters from the then Associate Dean at New York University School of Law are particularly significant. The letter to the Board of Law Examiners dated February 6, 1970 states, in pertinent part, "Prior to Mr. Steinberg’s entry into the Armed Forces he completed four full-time terms at the Law School, and then completed two-thirds of the residence credit required for graduation by the Court of Appeals Rules. During this period, Mr. Steinberg was enrolled in courses totalling 57 credits.” In a letter to respondent dated the same day, the Associate Dean states, inexplicably, "You will note that paragraph three of my letter does not state in so many words that you had completed two-thirds of the graduation requirements prior to your entry into the Armed Services.” The Associate Dean acknowledges, "In terms of total hours of credit earned at that time, you had at that point only 51 credits * * * You did, however, attend for two full years and you were regularly enrolled in courses totaling 57 credits, as stated in the attached letter.”
The letter went on, "It thus appears to me that whether or not you meet the conditions of Rule Vl-a is a matter of interpretation. My letter to the Board contains nothing inaccurate, however, if future inquiry is addressed to the number of hours for which credit had been earned, I should, of course, *114have to respond.”* The Associate Dean’s letter concludes, "You may wish to inquire directly of the Board or you may wish to remain silent and hope that they will simply act favorably on your application as it stands.”
While the Associate Dean’s opinion that the letter does not conceal the truth is certainly open to question, for purposes of this application it clearly reveals that respondent was aware that he was not eligible for the waiver on academic grounds, and obviously concealed his ineligibility from the Board.
Even without this subsequently discovered documentary evidence implicating respondent in the suppression of the actual facts surrounding his ineligibility, there are at least two basic flaws in his unelaborated denial of any wrongdoing. Ordinarily, a presumption of regularity attaches to the acts of all public officials. (See, Fisch, New York Evidence § 1134 [2d ed], and cases cited therein.) Thus, in the absence of proof to the contrary, the Board of Law Examiners must be presumed to have acted honestly and in accordance with law and to have done nothing contrary to official duty in processing respondent’s application. (See, Matter of Whitman, 225 NY 1, 9; Matter of Marcellus, 165 NY 70, 77.) In the absence of substantial evidence to the contrary, the presumption carries. (See, People v Harris, 61 NY2d 9, 16; People v Richetti, 302 NY 290, 298.) Since respondent clearly was not entitled to the waiver which was issued, and in the absence of proof that the Law Examiners acted contrary to their oath, we are constrained to infer that they were defrauded, because no other rational explanation exists for the issuance of the waiver.
Additionally, it must be remembered that it was respondent, not the Board of Law Examiners, who instituted the application for a waiver. The mere making of an application presupposes a familiarity with part 526. Respondent was the one who had to read the Rules of the Court of Appeals to learn of the eligibility requirements in order to ascertain whether he qualified and to prepare the application. Consequently, irrespective of whether he misrepresented his academic background in terms of qualifying for the waiver of examination, *115he, at the very least, suppressed the fact that he did not qualify. He knew, as the answers in his application to the Committee on Character and Fitness show, that the course of his law school studies was not interrupted by active service in the Armed Forces and that he had not completed two thirds of the requirements for a law school degree prior to entering military service. In answer to the question whether he had ever been dropped, suspended or expelled from school, respondent admitted that, for reasons of poor scholarship, he was asked in May 1964 to take a one-year leave of absence or submit a written statement demonstrating his "intent to remain and reasons therefor”. In apparent explanation of his actions at that time he then noted, gratuitously, that he took a military leave of absence from June 1964 to May 1968. Of course, respondent admitted elsewhere in this same application that he did not enter military service until April 1965. Thus, if respondent did not falsely state facts, then he stated true facts which he knew did not entitle him to exemption from the Bar examination. Therefore, his . denial that he misrepresented does not create a triable issue since he, at the very least, suppressed the fact of his lack of entitlement to the exemption. We could, of course, direct a hearing on the issue, but respondent’s general denial cannot, without more, especially in light of the newly discovered documentary evidence, overcome the documentary proof that he was ineligible for admission without first taking the Bar examination and that he withheld that fact.
While, concededly, revoking a license without a hearing 17 years after admission is a drastic step, the conclusion is inescapable that respondent withheld material information as to his lack of qualifications for invocation of the Court of Appeals waiver rule. Nor is it unfair to revoke such an admission even after the lapse of so many years if the requirements of a high moral character and fitness to practice law are to have any meaning for future applicants. Prospective attorneys are held to a high standard of honesty when examined by this court’s Committee on Character and Fitness for admission to the Bar. Whatever the importance of any one question or answer or item of information, the overriding consideration is disclosure and truthfulness.
The dissent insists that respondent is entitled to a hearing because of his general denial that he had committed fraud, even in the face of the letters from the Associate Dean of New York University School of Law indicating not only that erro*116neous information had been supplied to the Law Examiners, but also that respondent was aware of the misrepresentations. It is clear from all the papers presented to us that respondent was ineligible for the waiver, as he was well aware, and that the only defense he offers is that he did not affirmatively misrepresent the facts of his claimed entitlement to a waiver of the Bar examination requirement. As noted earlier, even if he did not misrepresent, which denial is belied by the correspondence from his law school, his ineligibility for the waiver looms clear, as does his knowledge and suppression of that fact.
Accordingly, the petition should be granted and respondent’s admission to practice revoked and his name stricken from the roll of attorneys and counselors-at-law.
Former section 523.6 of the Rules of the Court of Appeals (22 NYCRR) expressly provided that complete credit could not be given for any semester "until passing grades in the failed subjects have been earned”. Furthermore, former section 520.1 restricted admission to only those admitted by order of the Appellate Division "upon compliance with these rules.” Finally, former part 529 expressly provided that only the Court of Appeals had the power to vary or relax any provision of the rules.
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Smith, J.
(dissenting). I dissent because a person who has been admitted to the Bar for 17 years should not have his admission summarily revoked without a hearing and without any communication from the Board of Law Examiners (Board), the body which certified that he was eligible to be admitted. Respondent was admitted to the New York Bar in the First Department on July 7, 1970 without passing a Bar examination and pursuant to former part 526 of the Rules of the Court of Appeals. That rule reads in pertinent part:
"The examination is dispensed with in the case of any applicant entitled to examination under these rules who is a graduate of and has received a first degree in law from an approved law school * * * if it appears * * *
"(3) that after January 1, 1963, and after completing in an approved law school two-thirds of the requirements for graduation and for a first degree in law, his course of law school study was interrupted by active service in the armed forces for not less than twelve months”.
Petitioner Departmental Disciplinary Committee (DDC) seeks to revoke respondent’s admission to the Bar on the grounds that he misrepresented his eligibility before the Board and that he did not meet the requirements of the above-quoted rule. Specifically, petitioner contends that respondent misrepresented himself by claiming (1) that he had finished two thirds of his course work when he left New York University Law School in May 1964 and entered the service in April 1965 and (2) that he left law school in order to enter the Armed Forces. In reality, petitioner contends, because respondent had failed two courses and obtained unsatisfactory *117grades in other courses, he had not completed two thirds of the credits necessary for graduation. In addition, petitioner contends that there was a period of approximately 11 months between respondent’s departure from law school and his entrance into the service.
Respondent claims that he did not misrepresent the facts to the Board and that following his honorable discharge from the service and completion of law school requirements, said body approved his application.
The fact that petitioner and respondent dispute what was presented to the Board makes a hearing necessary to determine the facts. The application which respondent made to the Board is not included in the papers submitted here and petitioner tells us that the application is no longer in existence. Petitioner, however, does not give the basis of its knowledge that said application no longer exists.
Moreover, there should be no summary revocation of respondent’s admission to the Bar since there is nothing from the Board concerning respondent’s application. Information from the Board is essential, particularly in view of the statement by the movant DDC that "[i]t is * * * difficult if not impossible to ascertain whether respondent actually misrepresented to the Board his compliance with the above-cited Rules and his eligibility for admission without examination.” It should be noted that 1 of the 3 persons on the Board who certified that respondent was eligible for admission to the Bar is still a member of the Board. He may be able to shed light not only on how the rule quoted above was interpreted (for example, whether respondent’s ultimate retaking and passing of his courses satisfied the rule) by the Board but also on the respondent’s original application.
Finally, respondent is not a person who is currently practicing law. Because he is confined to prison awaiting trial on murder and related charges, he cannot represent clients. If he is convicted at trial, he will be automatically disbarred pursuant to Judiciary Law § 90 (4).
Murphy, P. J., Sullivan, Ross and Rosenberger, JJ., concur; Smith, J., dissents in an opinion.
Respondent’s name is stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately.
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OPINION OF THE COURT
Bracken, J.
On this appeal, the plaintiff landowner claims that the application of a local zoning ordinance to its land is unconstitutional. This claim is premised not so much upon an assertion that the restriction on land use contained in the ordinance constitutes a "taking” of its property in violation of the *120Just Compensation Clause of the Fifth Amendment (US Const 5th Amend), as upon the argument that since the ordinance bears no rational relation to the achievement of some rightful governmental objective, it represents an invalid exercise of the town’s authority to regulate land use in the interest of the public welfare (see, Town Law § 261). We find that the plaintiff has failed to meet its heavy burden of proving that the zoning classification of its property is unconstitutional and we therefore modify the judgment appealed from so as to declare the Zoning Code of Huntington constitutional as applied to the plaintiffs property.
I
The plaintiff is the owner of approximately 52 acres of land situated to the south of the eastbound service road of the Long Island Expressway and to the west of Walt Whitman Road, in Melville, New York. This land is currently zoned R-40 residential. Pursuant to this zoning classification, the plaintiffs property may be developed with single-family homes built on lots no less than one acre in size.
There is more vacant land, also zoned as R-40 residential, immediately to the west of the plaintiffs property. To the south of the plaintiffs land, there is a vacant field. Further to the south and on the west side of Walt Whitman Road, there is a small development of homes on small lots, adjoining Pine Ridge Street and Drexel Avenue. Still further south, a residential condominium is under development in an area originally zoned R-40 but which, in a prior unrelated action, was ordered rezoned by the Supreme Court, Suffolk County. To the northwest, across the Long Island Expressway, there is another R-40 district, which has been developed with a residential community. Thus, the subject property is abutted on three sides by primarily residential districts. It is mainly to the east, across Walt Whitman Road, and to the northeast that the character of the area has become distinctly commercial or industrial.
The Supreme Court, Suffolk County, found after a trial, at which the town produced no witnesses, that "it was not practicable, on any basis, to develop the property on one acre residential lots because of the industrial and commercial uses in the surrounding areas and upon every approach to the property; the flat topography; the lack of trees; its frontage on Walt Whitman Road, its location cheek to jowl to the Express*121way and its service roads; the noise levels generated by the traffic and the present uses of the surrounding properties at all hours of the day and night”. The court also concluded that "the character of the surrounding area has changed so radically that it is unreasonable for the Town to demand that the [plaintiffs] property be kept in its R-40 zoning”. The court, based on these findings, among others, held that the R-40 zoning of the plaintiffs land is unconstitutional.
We might well agree with the trial court’s characterization of the zoning of the plaintiffs land as "unreasonable”, in the sense that a less restrictive zoning might render the land more profitable to its owner without having an unduly adverse impact on the character of the surrounding neighborhood. The town, by enforcing the R-40 zoning classification applicable to the plaintiffs property, may not be pursuing the most "reasonable” course open to it. However, the enforcement of that zoning classification is not, for that reason alone, unconstitutional. Neither the State nor the Federal Constitution requires that the courts oversee land-use regulation by local governments with reference to some nebulous standard of "reason-ability”.
II
The Fifth Amendment of the US Constitution provides, in part, that "private property [shall not] be taken for public use, without just compensation” (US Const 5th Amend). This amendment requires the State or Federal Government to provide fair compensation whenever private property is "taken”. It applies, most obviously, to cases where the government deprives a private owner of his title to the property in question. The Just Compensation Clause also applies when the government appropriates by physical possession all or a part of an owner’s property, even when the physical occupation is of a minimal nature (see, Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, revg 53 NY2d 124), and also when the government appropriates some legal interest in the property short of the fee simple such as, for example, an easement (Nollan v California Coastal Commn., 483 US —, —, 107 S Ct 3141, 3145). It has also become established doctrine that the government’s mere regulation of land use, if it renders the property incapable of yielding a reasonable economic return, may constitute a taking (see, e.g., First English Evangelical Lutheran Church v County of Los Angeles, 482 US —, 107 S Ct 2378).
*122"The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking” (Pennsylvania Coal Co. v Mahon, 260 US 393, 415). A law which restricts a property owner’s right to use his land as he sees fit, or which adversely affects the value of the land, will not be considered as having gone "too far”, however, unless it prohibits virtually all economically viable uses of the land. "[A] regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property’s value” (First English Evangelical Lutheran Church v County of Los Angeles, supra, 482 US, at —, 107 S Ct, at 2393 [Stevens, J., dissenting], citing Keystone Bituminous Coal Assn. v DeBenedictis, 480 US —, 107 S Ct 1232; Hodel v Virginia Surface Min. & Reclamation Assn., 452 US 264, 296; Agins v Tiburon, 447 US 255, 260; see, also, Penn Cent. Transp. Co. v New York City, 438 US 104, 138, n 36, affg 42 NY2d 324, reh denied 439 US 883).
Thus, in order to prove that an unconstitutional taking has occurred, a landowner must prove that the land cannot yield an economically reasonable return as zoned (de St. Aubin v Flacke, 68 NY2d 66, 76-77; Spears v Berle, 48 NY2d 254, 263; Marcus Assocs. v Town of Huntington, 45 NY2d 501, 506; Williams v Town of Oyster Bay, 32 NY2d 78). Mere conclusory testimony to the effect that the land cannot yield a reasonable return as zoned is insufficient (see, e.g., Matter of Village Bd. v Jarrold, 53 NY2d 254, 259; Matter of Forrest v Evershed, 7 NY2d 256, 261-262; Matter of Clark v Board of Zoning Appeals, 301 NY 86, 90, mot to rearg or amend remittitur denied 301 NY 681, cert denied 340 US 933). It is not enough to prove that the land would be more valuable under a less restrictive classification (see, McGowan v Cohalan, 41 NY2d 434, 436; Williams v Town of Oyster Bay, 32 NY2d 78, 82; Curtiss-Wright Corp. v Town of E. Hampton, 82 AD2d 551, 553-554). In order to make the necessary showing, a landowner must offer proof of the market value of the property at the time of acquisition, and proof of the current value of the property as presently zoned (Matter of Village Bd. v Jarrold, supra, at 258; Northern Westchester Professional Park Assocs. v Town of Bedford, 92 AD2d 267, 272, affd 60 NY2d 492; Curtiss-Wright Corp. v Town of E. Hampton, supra; H.J.E. Real Estate v Town of Hempstead, 55 AD2d 927).
In this instance, sufficient proof has not been adduced to establish an unconstitutional taking in accordance with this *123standard. The plaintiff has failed to furnish evidence as to the fair market value of the property in question at the time of its acquisition, which is not necessarily the same as the amount of plaintiff’s investment in the land (see, Northern Westchester Professional Park Assocs. v Town of Bedford, supra, at 272-273). The plaintiff also has failed to demonstrate the current value of the property. It is therefore clear that the plaintiff has no viable claim pursuant to the Just Compensation Clause of the Fifth Amendment.
Ill
Therefore, if it is to prevail in this action, even in the absence of any showing of an unconstitutional confiscation, the plaintiff must prove, beyond a reasonable doubt, that the zoning of its property has no reasonable relation to the achievement of a valid civic objective. Although the expert testimony offered by the plaintiff was unrebutted, this does not entitle the plaintiff to judgment as a matter of law (de St. Aubin v Flacke, supra, at 76; Northern Westchester Professional Park Assocs. v Town of Bedford, supra, 60 NY2d, at 500-501). This court may accept or reject this testimony in whole or in part. Considering such testimony together with all the evidence adduced at trial, including the maps received in evidence, we conclude that the plaintiff failed to meet its heavy burden of proving that the R-40 zoning of its land does not constitute a valid exercise of the town’s police power.
The presumption of constitutionality applies as well to municipal ordinances as to State statutes (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11). The validity of a particular ordinance is judged not with reference to a generalized standard of reasonability, but instead with respect to the specific test of whether any conceivable rational basis exists which would justify the challenged ordinance (Lighthouse Shores v Town of Islip, supra, at 11-12). "If any state of facts, known or to be assumed, justify [sic] the law, the court’s power of inquiry ends (United States v. Carolene Products Co., 304 U.S. 144, 154). Questions as to wisdom, need or appropriateness are for the Legislature (Olsen v. Nebraska, 313 U.S. 236, 246)” (Defiance Milk Prods. Co. v Du Mond, 309 NY 537, 541).
We conclude, pursuant to this standard, that the zoning classification in question indubitably constituted a valid exercise of police power when enacted. We further find that although certain areas in close proximity to the subject prop*124erty, in recent years, have been allowed to be developed for industrial purposes so that the wisdom of the challenged R-40 zoning has been rendered a matter of debate, this trend to industrialization is neither so pronounced nor so pervasive as to render the challenged ordinance arbitrary or irrational as a matter of constitutional law.
The Court of Appeals has, on several occasions, rejected challenges directed at restrictive residential zoning ordinances where the owner claimed that the surrounding area had become commercial or industrial. For example, in Dauernheim, Inc. v Town Bd. (33 NY2d 468, revg 42 AD2d 251), the plaintiffs property was located at the intersection of Jerusalem Avenue and Wantagh Avenue, in the vicinity of business uses. In Williams v Town of Oyster Bay (supra), the plaintiffs property was located on Merrick Road, and was also near business or commercial properties. In De Leo v Lecraw (30 NY2d 824) the plaintiffs residentially zoned property was located at the intersection of the Long Island Expressway and Glen Cove Road. In Whitney Park Homes v Incorporated Vil. of Upper Brookville (26 NY2d 1006, affg 30 AD2d 880), the plaintiffs property adjoined Route' 106.
In all of these cases, the residential zoning was upheld as valid, even though the owner’s property was bordered on 1, 2 or even 3 sides (e.g., Whitney Park Homes v Incorporated Vil. of Upper Brookville, supra) by commercial, business or industrial uses, as well as by major highways. These cases are to be contrasted with those in which a residentially zoned property is "virtually surrounded” by industrial buildings (see, Mary Chess, Inc. v City of Glen Cove, 18 NY2d 205, 211) or "immersed” in a commercial area (see, e.g., Stevens v Town of Huntington, 20 NY2d 352, 355, rearg denied 20 NY2d 806). The property of the plaintiff in the present case is not a residential " 'island’ ” (Matter of Grimpel Assocs. v Cohalan, 41 NY2d 431, 432) surrounded by business uses. Instead, the subject property is at the northeast corner of a larger R-40 zone that, in general, extends to the west and south.
There is no question but that the plaintiffs property was originally zoned in accordance with a valid comprehensive plan. The plaintiff claims, however, that the town must continuously revise its over-all land-use plan and reassess the zoning of one area based on developments which have taken place in an adjoining area. Thus, the plaintiff argues in essence that because the property located across Walt Whitman Road has been allowed to develop along light industrial *125or general business lines, property such as the plaintiffs, on the western side of Walt Whitman Road should also be allowed to develop in this way. This argument, if accepted, would lead to the " 'domino’ ” effect in the commercialization of residential areas which was of concern to the Court of Appeals in Megin Realty Corp. v Baron (46 NY2d 891, 893, affg 57 AD2d 608).
Zoning lines are necessarily drawn with some degree of arbitrariness (Dodge Mill Land Corp. v Town of Amherst, 61 AD2d 216, 220), and at some point the encroachment of business or commercial uses into residential districts must be halted. We recognize that "sound planning inherently calls for recognition of the dynamics of change” (Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178, 188, rearg denied 34 NY2d 668) so that local authorities may, from time to time, alter the dimensions of their comprehensive plans (see, Matter of Town of Bedford v Village of Mount Kisco, supra; Kravetz v Plenge, 84 AD2d 422, 429-430). Thus, the town in the present case would be free to rezone the subject property from R-40 to another zoning classification more consistent with current conditions. However, such a change in zoning is not constitutionally required merely because certain land-use experts may be of the opinion that the town’s current zoning scheme is less than optimal in effect.
We determine that the zoning classification at issue has a rational basis and promotes the public interest since it tends to encourage low-density housing development, a form of land use clearly beneficial to the surrounding community. The courts have long recognized as legitimate the governmental objective of protecting community residents from "the ill effects of urbanization” (Agins v Tiburon, supra, 447 US, at 261; see also, Penn Cent. Transp. Co. v New York City, supra, 438 US, at 129; Village of Belle Terre v Boraas, 416 US 1, 9). The zoning ordinance in question is related to the public welfare because it promotes "orderly development of residential property with provision for open-space areas” (Agins v Tiburon, supra, at 262).
While land located immediately adjacent to the Long Island Expressway may not be the best place to secure "the blessings of quiet seclusion and clean air” (Village of Belle Terre v Boraas, supra, at 9), there is no persuasive evidence that the land cannot be developed in accordance with prevailing zoning so as to yield a reasonable return. We must "avoid any substitution of our judgment for that of the legislative body as *126to the necessity, wisdom or expediency of the legislative act” (Marcus Assocs. v Town of Huntington, 45 NY2d 501, 506, citing Town of Hempstead v Goldblatt, 9 NY2d 101, 105). If the wisdom of a particular zoning classification is "fairly debatable”, it must be allowed to stand (see, e.g., Euclid v Ambler Co., 272 US 365, 388; Spears v Berle, 48 NY2d 254; Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 226; Blitz v Town of New Castle, 94 AD2d 92, 101).
IV
For the foregoing reasons, we conclude that the zoning of the plaintiff’s land is not unconstitutional. Accordingly, the judgment appealed from should be modified, by deleting the provisions thereof which declared the Zoning Code of the Town of Huntington unconstitutional as applied to certain property owned by the plaintiff, and enjoined the defendant from enforcing the present zoning classification with respect to that property, and substituting therefor a provision declaring the Zoning Code of the Town of Huntington constitutional as applied to the property in question. Since the plaintiff has not prevailed in this action, it is clearly not entitled to attorneys’ fees under 42 USC §§ 1983 and 1988, and this court need not consider whether the plaintiff would have been entitled to attorneys’ fees if in fact it had prevailed. Therefore, as so modified, the judgment should be affirmed.
Mollen, P. J., Spatt and Sullivan, JJ., concur.
Ordered that the judgment is modified, on the law, by deleting the first and third decretal paragraphs thereof declaring the Zoning Code of the Town of Huntington to be unconstitutional as applied to certain property owned by the plaintiff and enjoining the defendant from enforcing the present zoning classification with respect to that property, and substituting therefor a provision declaring the Zoning Code of the Town of Huntington constitutional as applied to that property; as so modified, the judgment is affirmed, with costs to the defendant.
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— Judgment and conviction reversed and prisoner discharged. Opinion by
Bockes, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129303/
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Judgment reversed, new trial granted, referee discharged, costs ■ to abide event. Opinion by
Boardman, J.
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01-03-2023
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02-04-2022
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Decree affirmed, with costs against appellant. Opinion by
Boardman and Bockes, JJ.
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5907358/
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Order unanimously affirmed with costs for reasons stated in the decision at Supreme Court, Shaheen, J. (Appeal from order of Supreme Court, Oneida *515County, Shaheen, J. — substitution of plaintiff.) Present — Dillon, P. J., Doerr, Green and Pine, JJ.
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Electric furnace.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902116/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 9, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Claimant was employed as an assistant manager for a college food service provider. In February 2009, he was counseled by his supervisor about having inappropriate relationships in the workplace. In July 2009, he became involved in a relationship with a student that was working for him. He was issued a written disciplinary warning notice at that time, which stated that the relationship was a clear violation of the standards that he was counseled on in February 2009 and that any further infractions in this regard would result in his termination. Claimant apparently briefly ended the relationship, but, after he began seeing the student again, his employment was terminated. The Unemployment Insurance Appeal Board thereafter denied *1041claimant’s application for unemployment insurance benefits on the basis that he was terminated due to misconduct. Claimant appeals.
We affirm. “A knowing violation of an employer’s established policy or reasonable request may constitute disqualifying misconduct, particularly where, as here, the claimant has received prior warnings about similar behavior” (Matter of Aguasvivas [Commissioner of Labor], 98 AD3d 787, 787 [2012] [citations omitted]; see Matter of Washington [Commissioner of Labor], 84 AD3d 1603, 1604 [2011]). Initially, we note that, although the policy in question was not in writing, claimant was clearly aware of the policy as he signed a warning letter affirming his understanding of it in July 2009 (see Matter of Kapelewski [Holiday Inn—Commissioner of Labor], 275 AD2d 855, 855 [2000]). Further, the record supports the Board’s rejection of claimant’s contention that he was not in violation of the policy regarding employees directly working for him at the time of his termination. Although claimant was transferred to a different dining hall, he was still in the same building as the student and admitted that he could still be required to supervise her at times. Given that substantial evidence supports the Board’s decision, it will not be disturbed.
Lahtinen, J.P., Spain, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 9, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Claimant was employed as an assistant manager for a college food service provider. In February 2009, he was counseled by his supervisor about having inappropriate relationships in the workplace. In July 2009, he became involved in a relationship with a student that was working for him. He was issued a written disciplinary warning notice at that time, which stated that the relationship was a clear violation of the standards that he was counseled on in February 2009 and that any further infractions in this regard would result in his termination. Claimant apparently briefly ended the relationship, but, after he began seeing the student again, his employment was terminated. The Unemployment Insurance Appeal Board thereafter denied *1041claimant’s application for unemployment insurance benefits on the basis that he was terminated due to misconduct. Claimant appeals.
We affirm. “A knowing violation of an employer’s established policy or reasonable request may constitute disqualifying misconduct, particularly where, as here, the claimant has received prior warnings about similar behavior” (Matter of Aguasvivas [Commissioner of Labor], 98 AD3d 787, 787 [2012] [citations omitted]; see Matter of Washington [Commissioner of Labor], 84 AD3d 1603, 1604 [2011]). Initially, we note that, although the policy in question was not in writing, claimant was clearly aware of the policy as he signed a warning letter affirming his understanding of it in July 2009 (see Matter of Kapelewski [Holiday Inn—Commissioner of Labor], 275 AD2d 855, 855 [2000]). Further, the record supports the Board’s rejection of claimant’s contention that he was not in violation of the policy regarding employees directly working for him at the time of his termination. Although claimant was transferred to a different dining hall, he was still in the same building as the student and admitted that he could still be required to supervise her at times. Given that substantial evidence supports the Board’s decision, it will not be disturbed.
Lahtinen, J.P., Spain, Stein, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed, without costs.
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902119/
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OPINION OF THE COURT
Hooper, J.
The principal issue to be addressed on appeal is whether the court properly declined to charge the jury—as requested by the defendant—that two prosecution witnesses be deemed accomplices as a matter of law for the purposes of the corroboration requirements set forth in CPL 60.22. For the reasons that follow, we conclude that the court properly determined that the status of the two witnesses as accomplices represented an issue for the jury’s resolution and, accordingly, we affirm.
I
The facts, insofar as pertinent, disclose that on July 6, 1985, the defendant Frank A. Tusa, accompanied by two friends, Jeffrey Nicolini and John Mulvey, left the defendant’s home in his automobile with no particular destination in mind. The defendant had in his possession at the time a rifle which he had recently acquired.
With Mulvey operating the automobile, the three men stopped first at the residence of a friend where the defendant *153discharged the rifle into the air, and then near a junior high school field, where the defendant fired the rifle into the ground. Finally, they arrived at a nearby tavern where both Mulvey and Nicolini became heavily intoxicated. The record indicates, however, that the defendant had refrained from excessive drinking.
After leaving the tavern sometime between 1:00 a.m. and 2:00 a.m. on July 7, 1985, the men proceeded to the Southern State Parkway where, in the right lane, they noticed a red Camaro directly in front of them. Upon observing the Camaro, the defendant suggested that they harass and frighten the driver. Mulvey testified that defendant repeatedly requested that he "hit” the Camaro, to which he allegedly replied "[n]o, I ain’t hitting the guy’s car”. Nicolini, who was reclining in the back seat, similarly testified that the defendant urged Mulvey to "scare the shit out of this guy” and also stated "[l]et’s shoot at him”. Mulvey, however, denied that the defendant mentioned shooting at the Camaro, and testified that after declining the defendant’s entreaties, he accelerated so as to pass the Camaro on the left. Nicolini testified that in so doing, Mulvey pulled alongside the Camaro for a period of approximately 30 seconds. At this point, according to Nicolini, the defendant reached for the rifle, which he had left between the door and front seat, and pointed it out the window. Nicolini testified that both he and Mulvey immediately admonished the defendant not to "screw around” and to "[p]ut the gun away”. Nevertheless, the defendant fired a single shot into the Camaro which fatally struck the operator of the vehicle in the head.
After the shot had been fired, Mulvey—who claimed that he was "freaking out” at this point—heard Nicolini laughing in the rear. Nicolini testified that he told defendant, "are you crazy”, and wrested the gun from his grasp, concealing it in a red towel. Mulvey then pulled away from the decelerating Camaro, which had by now swerved off the road and crashed into a group of trees lining the highway. Although the three men turned around and passed the scene of the crime a short time later, they did not linger because they saw State Troopers milling about.
A few days later, Nicolini learned from reading a newspaper account that the driver of the Camaro had died from a gunshot wound to the head. Thereafter, he dismantled the rifle and disposed of it.
*154II
Acting upon an anonymous phone call which implicated the defendant in the shooting, the police initially placed him under surveillance. They questioned Mulvey on September 13, 1985, but he denied knowledge of the incident at that time. Thereafter, the police attempted to question Nicolini after obtaining information that he was a friend of the defendant. On October 5, 1985, Nicolini was informed by the authorities that he would be granted immunity if he agreed to disclose what had transpired on the night of the shooting. Nicolini agreed, and subsequently identified the defendant as the shooter. The defendant was arrested on October 7, 1985. When Mulvey discovered that the defendant had been arrested, he voluntarily surrendered to the police and was placed under arrest and later charged with hindering prosecution. The police sought, and obtained, Mulvey’s cooperation, in return for which he was permitted to plead guilty to the misdemeanor of hindering prosecution in the third degree with a promise of probation. Thereafter, the defendant was charged with one count of murder in the second degree in connection with the shooting of Albert Ragozzino, who had been operating the red Camaro on the night in question.1
After the close of testimony—and prior to the submission of the case to the jury—the defense counsel requested that the Trial Judge charge the jury that Mulvey and Nicolini were accomplices as a matter of law. The court declined to do so, although it subsequently agreed to submit the issue to the jury as a question of fact for its resolution. Thereafter, the jury convicted the defendant of murder in the second degree.2 On appeal, the defendant contends, inter alia, that the court erred in declining to charge the jury that Mulvey and Nicolini were accomplices as a matter of law. We disagree.
III
The statutory proscription against the conviction of a defen*155dant based upon the uncorroborated testimony of an accomplice has its genesis in the traditional view held by the courts that such testimony "may often lack the inherent trustworthiness of a disinterested witness” (see, People v Berger, 52 NY2d 214, 218; see also, People v Moses, 63 NY2d 299, 305; People v Cona, 49 NY2d 26, 34, on remand 79 AD2d 1006; People v Chernauskas, 137 AD2d 607).
Accordingly, "[c]ourts have thus exercised the utmost caution in dealing with accomplice testimony, especially when the testimony is exchanged for immunity or other favorable prosecutorial consideration” (People v Berger, supra, at 219; People v Cona, supra). CPL 60.22, the "modern version of the accomplice corroboration statute” (see, People v Berger, supra, at 219), defines an accomplice as a witness who, according to the evidence adduced at trial, "may reasonably be considered to have participated in: (a) [t]he offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]; People v Basch, 36 NY2d 154, 157).
In construing the scope of the foregoing statute, the Court of Appeals has observed, inter alia, that "even though a witness is not liable criminally as an accomplice for the offense being tried, the witness may be an accomplice for corroboration purposes if he or she may reasonably be considered to have participated in an offense based on some of the same facts or conduct which make up the offense on trial” (see, People v Berger, supra, at 219; CPL 60.22 [2] [b]). As is apparent from the Court of Appeals holding—and the language of the statute itself—the corroboration requirement is rendered expressly applicable to a limited class of witnesses whose perceived untrustworthiness derives either from their direct complicity in, or their commission of conduct which forms some part of, the crime for which the defendant is on trial (see, People v Berger, supra).
Application of the forgoing criteria within the factual context presented establishes that the court properly relegated the accomplice status of both Mulvey and Nicolini to the jury for resolution as a question of fact.3 Although as the defendant notes, the underlying policy objectives served by the testimo*156nial corroboration principle have broadened the definition of the term "accomplice” beyond that which would obtain in a case where one’s criminal liability as an accomplice is at issue (see, People v Berger, supra, at 219; People v Basch, supra; People v McAuliffe, 36 NY2d 820, 822; People v Brooks, 34 NY2d 475, 477), in order for a witness to be deemed an accomplice as a matter of law, it must be established that, based on the evidence presented, the jury could reach no other conclusion than that the witness participated in (1) an offense charged or (2) an offense based on the same or some of the facts or conduct which constitute the offense charged (see, e.g., People v Cobos, 57 NY2d 798; People v Duncan, 46 NY2d 74, cert denied 442 US 910, rearg dismissed 56 NY2d 646; People v Crutchfield, 134 AD2d 508; People v Kass, 132 AD2d 571; see also, People v Basch, supra, at 157). The evidence adduced at trial in this respect was lacking.
Preliminarily, we reject the defendant’s attempt to portray his precipitous homicidal act as the inevitable denouement of an evolving criminal enterprise or scheme, to which Mulvey and Nicolini must, as a matter of law, be deemed principal contributors and accomplices (cf., People v Cobos, supra; People v Rugg, 91 AD2d 692, 693). While it is true that in Mulvey and Nicolini, the defendant found willing companions in the evening’s initial unsavory activities, it can hardly be stated, as the defendant seemingly suggests, that these activities represented a clear portent of the callous and brutal act which would ultimately bring the evening to its tragic conclusion.
Nor do we perceive—in the events immediately preceding the discharge of the rifle—evidence which required submission of the accomplice issue to the jury as a matter of law. The evidence in this respect revealed that Nicolini—reclining in the rear of the automobile—played no role in the relevant acts which transpired immediately prior to the shooting. Indeed, Nicolini testified that he admonished the defendant and wrested the rifle away from him after the fatal shot had been discharged (cf., People v Jones, 135 AD2d 652). Neither did Mulvey’s conduct at this critical juncture unequivocally foretell his status as an accomplice. Mulvey testified that he declined the defendant’s invitation to "hit” the victim’s Ca*157maro. Although it is undisputed that Mulvey accelerated after the defendant requested that he "hit” the other vehicle, Mulvey’s testimony suggests that he merely sought to pass the Camaro and did not accelerate so as to facilitate the defendant’s conduct in discharging the rifle. Moreover, while Nicolini testified that defendant mentioned "shooting” at the Camaro, Mulvey pointedly denied that the defendant ever made such a statement. Nevertheless, inasmuch as Nicolini testified —albeit in contradiction to Mulvey’s testimony—that defendant stated, "[l]ets shoot at [the car]”, and, since Nicolini further testified that Mulvey thereafter briefly pulled alongside the Camaro immediately prior to the discharge of the shot, we conclude that differing inferences may be reasonably drawn from the evidence in regard to Mulvey’s alleged complicity in the shooting. Accordingly, the question of Mulvey’s status as an accomplice represented a question of fact properly left to the jury for determination (see, e.g., People v Vataj, 69 NY2d 985, 987; People v Cobos, supra; People v Dorta, 46 NY2d 818; People v Arce, 42 NY2d 179, 186; People v Rodriguez, 137 AD2d 565; People v Romeo, 130 AD2d 523, 524, lv denied 69 NY2d 1009; People v Eschert, 118 AD2d 724, 725, lv denied 68 NY2d 769).4
IV
Finally, we reject the defendant’s suggestion that Mulvey and Nicolini were rendered accomplices as a matter of law pursuant to CPL 60.22 (2) (b) by virtue of their subsequent attempts to hinder prosecution. Indeed, we have only recently held that a witness who is merely an "accessory after the fact” is not an accomplice as a matter of law for the purpose *158of the corroboration requirements set forth in CPL 60.225 (see, People v Vataj, 121 AD2d 756, 757-758, revd on other grounds 69 NY2d 985, supra; see also, People v Le Grand, 61 AD2d 815, cert denied 439 US 835).
More specifically, this court in People v Vataj (121 AD2d 756, supra), observed that the testimonial corroboration requirement is not properly applied to a witness whose involvement as an accessory after the fact constitutes the crime of hindering the defendant’s prosecution. Recognizing that the underlying reason for the corroboration requirement rests upon the perceived untrustworthiness of an accomplice’s testimony, the court reasoned that an accessory after the fact, who is less culpably implicated in respect to the offense charged, "is simply not to be mistrusted to the same extent as a person who actually participated in the crime” (People v Vataj, supra, at 757). After reviewing the relevant policy considerations, the court concluded that "an 'accessory after the fact’ is not to be considered an accomplice as a matter of law” (People v Vataj, supra, at 758). We perceive no reason to depart from our recently enunciated precedent in respect to the application of the corroboration requirement to an accessory after the fact.5
6
*159We have examined the defendant’s remaining contentions and find them to be either unpreserved for appellate review or lacking in merit.
Mollen, P. J., Lawrence and Weinstein, JJ., concur. Ordered that the judgment is affirmed.
. Specifically, the indictment accused the defendant of murder in the second degree, in that, under circumstances evincing a depraved indifference to human life, he recklessly engaged in conduct which created a grave risk of death to another person (see, Penal Law § 125.25 [2]).
. At the request of the People, the jury was charged in respect to the lesser included offense of manslaughter in the second degree. Thereafter, the defense counsel’s request that the jury be charged as to the crime of criminally negligent homicide was granted.
. We find that the People’s nonpreservation contentions in respect to the accomplice issue to be unpersuasive. While defense counsel did ultimately agree to the submission of a charge under which the status of Mulvey and Nicolini as accomplices would represent an issue to be resolved by the jury, he did so only after his written and oral requests that the men *156be treated as accomplices as a matter of law were denied. Accordingly, having timely asked the Trial Judge to instruct the jury that Mulvey and Nicolini were accomplices as a matter of law, the defendant preserved for appellate review his objections to the court’s denial of his request (cf., People v Calandro, 127 AD2d 675, 676).
. The defendant’s attempt to enlarge upon the status of Mulvey and Nicolini as accomplices by arguing, alternatively, that both men engaged, as a matter of law, in a "legion” of lesser offenses forming "some part” of the offense charged at trial is unpersuasive (see, CPL 60.22 [2] [b]). Although both men may have "condoned” the defendant’s conduct in the sense that they accompanied him and failed to immediately remove the rifle from his possession, we do not perceive the foregoing actions as representing "some part” of the same acts or conduct comprising the offenses charged at trial (see, People v Napoli, 126 AD2d 674, 675, lv denied 69 NY2d 1007; People v Kass, 132 AD2d 571). Moreover, even when the most temporally proximate conduct engaged in by Mulvey—the acceleration of the automobile—is construed as a reckless action constituting "some” part of the offenses charged, Mulvey’s complicity in committing such misconduct is nevertheless equivocal (cf., People v Cobos, 57 NY2d 798; People v McAuliffe, 36 NY2d 820, 822).
. In People v Vataj (69 NY2d 985), the Court of Appeals reversed this court’s order, for reasons unrelated to the question whether CPL 60.22 applies to the testimony of an accessory after the fact. Specifically, the court concluded that there was evidence in the record suggesting that the witness in question may have been involved in the preparations made by the defendant for the murder of which he was convicted. In light of the foregoing, the court held that a question of fact arose as to the witness’s status as an accomplice (see, People v Vataj, supra, at 987).
. We note that various other jurisdictions have similarly concluded that an accessory after the fact is not an individual to whom the corroboration rule applies (see, e.g., Gamez v State, 737 SW2d 315 [Tex]; Miguez v State, 715 SW2d 795, 799 [Tex]; Hanna v State, 560 P2d 985 [Okla]; Jacks v State, 364 So 2d 397, writ denied Ex parte Jacks, 364 So 2d 397, cert denied 364 So 2d 406 [Ala]; Commonwealth v Hudson, 489 Pa 620, 414 A2d 1381; State v Eakins, 292 NC 445, 233 SE2d 387). Indeed, the majority of States do not require corroboration, even when the testimony of an accomplice is involved (see, People v Moses, 63 NY2d 299, 310-311 [Jasen, J., dissenting]; People v Thomas, 135 Misc 2d 434, 436, n 2), and the Federal rule dispenses entirely with the need for corroboration, requiring only a cautionary charge to the jury when an accomplice testifies (see, e.g., United States v Gardea Carrasco, 830 F2d 41; United States v Moreno, 649 F2d 309, 312; United States v Augello, 452 F2d 1135, 1140, cert denied 406 US 922, cert denied sub nom. Sciortino v United States, 409 US 859).
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902120/
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OPINION OF THE COURT
Kane, J. P.
On the evening of June 24, 1983, plaintiff Margaret A. Sheehy (hereinafter Sheehy), then age 17, was struck by an automobile while crossing the public highway at the intersection of State Route 352 and River Street in the Town of Big Flats, Chemung County. She was proceeding from the premises of defendant Driscoll’s Tavern, Inc. to the "Big Flats Community Days” celebration which was taking place across the road and was sponsored by defendant Big Flats Community Day, Inc. At the time of the accident Sheehy was intoxicated, and plaintiffs contend that earlier in the evening she had been served beer at a beer tent operated by defendant American Legion Ernest Skinner Memorial Post 1612 (hereinafter the Legion) at a time when she was intoxicated and under the then legal drinking age of 19 (Alcoholic Beverage Control Law § 65 [former (1)], as amended by L 1982, ch 159, §1).
The complaint in this action seeks recovery for personal injuries sustained by Sheehy and for expenses and loss of *162services sustained by her mother. Plaintiffs allege causes of action in common-law negligence, statutory negligence and a violation of General Obligations Law § 11-101 (1) and (4) (hereinafter the Dram Shop Act). A motion for summary judgment resulted in dismissal of each cause of action in the complaint against the Legion, except for the mother’s cause of action predicated on the Dram Shop Act, wherein a conditional dismissal was granted with the right to replead. Neither party appeals from the dismissal of the Dram Shop Act cause of action. Plaintiffs do, however, argue that Supreme Court improperly dismissed the causes of action alleging common-law negligence and purporting to allege a violation of Penal Law § 260.20 (former [4]).1
Turning first to plaintiffs’ common-law negligence claim, it appears that when the accident occurred, Sheehy was on the highway about 200 yards away from the Legion’s beer tent. Under common law, a landowner is responsible for injuries caused to a third person by an intoxicated guest only if the injuries occurred on the landowner’s property or in an area under his control where he had an opportunity to supervise the intoxicated guest (D'Amico v Christie, 71 NY2d 76, 85). This court has previously dismissed common-law claims involving injuries to others caused by intoxicated persons where the injuries have not occurred on the landowner’s premises (see, e.g., Joly v Northway Motor Car Corp., 132 AD2d 790, 791; Delamater v Kimmerle, 104 AD2d 242, 244; Wright v Sunset Recreation, 91 AD2d 701). Plaintiffs attempt to distinguish these cases by arguing that, unlike the instant situation, they involved accidents occurring far from the site where the alcoholic beverages were served and/or occurred a significant period of time after the drinking took place. Plaintiffs also claim that the highway here encompassed an area within the Legion’s control.
This argument must be rejected. Plaintiffs did not allege in the complaint that the Legion is the landowner and the Legion has denied owning the land on which its tent was located. In addition, plaintiffs failed to offer any proof to support their claim that the Legion exercised control over that part of the highway where the accident occurred. There*163fore, Supreme Court properly dismissed plaintiffs’ claim of common-law negligence.
We turn next to plaintiffs’ assertion that they should be permitted to sue under Penal Law § 260.20 (former [4]) (as amended by L 1982, ch 159, § 4). At the time of the accident, this statute provided that a person was "guilty of unlawfully dealing with a child when * * * [h]e gives or sells * * * any alcoholic beverage * * * to a child less than nineteen years old”.2
Whether a statute gives a private right of action to the one injured by its violation is based on two factors: first, whether the plaintiff is one of the class for whose benefit the statute was specifically enacted, and second, whether such a private right of action would clearly further the legislative purpose of the statute (CPC Intl. v McKesson Corp., 70 NY2d 268, 276). In our view, although the first requirement, concededly, is satisfied, the statute and its history indicate that a private cause of action based upon it was not intended (but see, Montgomery v Orr, 130 Misc 2d 807; Dynarski v U-Crest Fire Dist., 112 Misc 2d 344 [intoxicated minors permitted to maintain negligence suits based on an alleged violation of Penal Law § 260.20 (4)]). In reaching this conclusion, we note that General Obligations Law § 11-100 (former [1]) (as added by L 1983, ch 641, § 1, eff Oct. 23, 1983)3 created a statutory cause of action for compensation for injuries or damages caused by an intoxicated person by imposing liability on those who unlawfully furnish or assist in procuring alcoholic beverages for persons under the age of 19. Thus, in contrast to the Dram Shop Act, General Obligations Law § 11-100 (1) does not require that a sale take place where an underage drinker is involved; a social host, for example, may now be held liable (see, Powers v Niagara Mohawk Power Corp., 129 AD2d 37, 41).
By enacting this statute, the Legislature has provided relief similar to that now sought by plaintiffs under Penal Law former § 260.20 (4), and in doing so, was presumed to be familiar with common-law and statutory remedies then existing (see, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 325). If Penal Law § 260.20 (4) had already imposed *164the civil liability established by General Obligations Law § 11-100 (1), the latter statute would have been unnecessary. Thus, it can be reasonably inferred that no private cause of action exists under Penal Law § 260.20 (4) (see, County of Monroe v State of New York, 123 AD2d 141, 143, lv denied 69 NY2d 612).4
While it could be argued that Penal Law § 260.20 (4) gives the intoxicated minor a cause of action for injuries he himself may have sustained (which General Obligations Law § 11-100 [1] does not do), we have found no legislative intent to support this argument. Further, it is a well-established principle that the Dram Shop Act does not create a cause of action in favor of one suffering injury by reason of his own intoxication (see, Delamater v Kimmerle, 104 AD2d 242, 244, supra).
Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.
Order affirmed, without costs.
. Plaintiffs’ complaint never specifically alleged a violation of Penal Law § 260.20 (former [4]). Nevertheless, we agree with Supreme Court that the fourth cause of action in the complaint could be read to allege negligence under this statute.
. Penal Law § 260.20 (4) has since been amended and now applies to persons under the age of 21 (L 1985, ch 274, § 5).
. This statute took effect after the date of the accident in the instant case. It has since been amended and now applies to persons under the age of 21 (L 1985, ch 274, § 4).
. In reaching this conclusion, we note our disagreement with the Fourth Department’s recent holding to the contrary in Stambach v Pierce (136 AD2d 329).
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OPINION OF THE COURT
Sullivan, J.
The Insurance Company of the State of Pennsylvania (Pennsylvania) appeals from an order which, inter alia, granted summary judgment to Varda, Inc., its insured, as to liability only, and dismissed the action against Varda’s broker, Seiger & Smith, Inc. and its president, Steven A. Vasaka. The court’s ruling, based on a finding of ambiguity, effectively rewrote Pennsylvania’s policy to afford first-party coverage under an endorsement which is expressly described in the policy as affording legal liability coverage only. Moreover, the policy contained the precise coverages requested of it by the broker. Accordingly, we reverse the award of summary judgment to Varda, grant Pennsylvania’s motion for summary judgment dismissing the complaint, and reinstate the complaint against Seiger & Smith and Vasaka.
Varda operated a retail shoe store on the street floor level of premises known as 714 Lexington Avenue in New York City, owned by defendant Leaselex Realty Corp., which, under a net lease, rented the entire building to Moshiko, Inc. Moshiko in turn rented store space to Varda, which alleges that on or about July 5 and 6, 1981 its stock was damaged when water escaped from a broken building pipe.
Varda filed a claim under its special multiperil policy with Pennsylvania, which denied coverage because the policy’s personal property coverage was limited to specified perils only, *172and water damage was not one of the specified risks. After Pennsylvania’s disclaimer, Varda and Moshiko, each of which were controlled by the same principal, commenced this action against Seiger & Smith and Vasaka for having failed to obtain, as requested, first-party coverage for water damage to contents. A year and one-half later, Varda and Moshiko joined Pennsylvania as a defendant. Additionally, they sought to reform the policy to name Moshiko as an additional insured even though Pennsylvania had never been requested to insure Moshiko.
On this record, it is clear that Pennsylvania issued its policy in conformity with the exact terms and conditions appearing on the order/binder form submitted to it by Seiger & Smith and Vasaka, who just as clearly, were Varda’s, not Pennsylvania’s agents. As Vasaka testified, Seiger & Smith did not have an agency relationship with Pennsylvania. Before he could issue a temporary binder to Varda, he had to call Pennsylvania’s local managing agent for specific authority. Specifically, as ordered by Vasaka, the policy provided all risk coverage on the building with a limit of $300,000, specified perils coverage as to personal property with a limit of $250,000, bodily injury and property damage liability coverage with a limit of $1,000,000, real property fire liability coverage with a limit of $100,000, and water damage legal liability coverage with a limit of $100,000, as well as various miscellaneous coverages. Coverage for damage to personal property is provided in an endorsement known as the General Personal Property Form, section IV of which specifies the perils covered. Water damage is not one of those listed. Moreover, section V of that endorsement designated "Exclusions”, lists a number of risks that are exempted from coverage, among which are water damage losses resulting from an assortment of events.
Recognizing that the General Personal Property Form did not cover its water damage loss, Varda argued to the motion court that coverage was afforded under a policy provision encaptioned "water damage legal liability endorsement”, which provides coverage for water damage legal liability to the extent of $100,000 per occurrence and is referred to on the coverage page of the policy, under additional liability coverages, as "Water Damage Legal”. Despite the fact that its broker specifically ordered "water damage legal liability $100,000”, both orally and on the order/binder sent to Pennsylvania, Varda managed to persuade the court that the water damage legal liability coverage Pennsylvania provided was, in *173fact, not liability coverage at all, but first-party personal property coverage for water damage.
The complaint asserts three causes of action against Pennsylvania, the theories of two of which are not entirely clear.* For instance, in the first cause of action, purportedly on the policy, plaintiffs never allege that Varda’s water damage loss is a covered loss. Instead, they allege what they believed the coverage under the policy should have been, thereby revealing that their plaint is really with their own agents, Seiger & Smith and Vasaka. Notwithstanding their failure to assert that the claim is even covered, plaintiffs allege that "[n]o part of [our] claim has been paid by defendant, Pennsylvania, although duly demanded.” The second cause of action merely realleges the factually deficient first cause of action and concludes that "[b]y reason of the acts of its agents, defendant, Pennsylvania, is liable to plaintiffs in the sum of $100,000.”
Without ever addressing the insufficiency of the pleading as against Pennsylvania, the court denied Pennsylvania’s motion for summary judgment with the necessary implication that the pleading stated causes of action, and granted Varda’s motion for summary judgment against Pennsylvania on the first cause of action on liability only. Although the court found ambiguity in the water damage legal liability endorsement, it never pointed to the precise terms which it found ambiguous. Thus, the court construed the endorsement as providing first-party water damage property coverage and dismissed the action against Seiger & Smith and Vasaka.
The policy contains the customary language universally used in liability insurance, namely, "The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay”. While the water damage legal liability endorsement does not so provide, the caption "water damage legal liability endorsement” appears in underlined capital letters at the top thereof. The endorsement is worded so as to provide coverage only "if such cause occurs on or from premises owned by or rented to the named insured”. This concern with the origin of the occurrence is similar to the language found in the general liability portions of the policy. When read together, it is clear that the water damage legal *174liability endorsement provides coverage only for damage for which the insured may be found legally liable to others. Indeed, even plaintiffs’ own expert conceded that the endorsement, in the context of the entire policy, provided only third-party liability coverage. His argument is that, "to a layman, the wording of the endorsement could be easily interpreted to infer first-party water damage coverage.”
In contrast to the legal liability provisions of the policy, the first-party property coverage provisions clearly restrict coverage to certain specified perils. The General Personal Property Form provides insurance "against all direct loss to the property covered under this form caused by” and then enumerates the risks, which include fire, lightning, windstorm or hail, explosion, smoke, damage from aircraft or vehicles other than those owned or operated by the insured or any tenant of the designated premises, riot, and vandalism or malicious mischief. Water damage is not included. Furthermore, as already noted, under its exclusions section the form specifies different types of water loss which are not covered.
Not only is the policy clear on its face, but Varda’s agents, Seiger & Smith and Vasaka, knew precisely what kind of coverage the policy provided, and that it did not afford first-party water damage coverage for contents. The decision on the insurance package ultimately obtained was the product of intense negotiations between Varda and the two brokers who were competing for its business. The competitor’s proposal for personal property coverage was also on a specified perils basis and did not include water damage. Eventually, Seiger & Smith, which had to match its competitor’s quote of $4,165 for the entire package, prevailed and placed the coverage with Pennsylvania.
In his deposition Vasaka testified that he advised Varda that the best possible coverage would be a package of all-risk on the contents as well as on the building, but Varda rejected such proposal because it refused to incur the additional premium for water damage coverage and the cost of installing a security system for burglary coverage. According to Vasaka, the "primary consideration was cost”. On the other hand, Ezra Omri, Varda’s president, testified that Vasaka told him that "[you] will be covered for everything, including especially water damage, which we had experienced before.”
According to Vasaka, the water damage legal liability endorsement was eventually purchased because of his belief that *175if a loss similar to the one Varda had previously experienced were to occur due to the negligence of an outside source, such as another tenant or the landlord, Varda would be covered up to $100,000. As he expressed it, "They could pick up for an inexpensive cost structure included in my proposal liability coverage against somebody else’s negligence. We included that.” At another point, speaking of the water damage legal liability endorsement, he testified, "Yes, if Leaselex was negligent [Varda] would have been entitled to water damage caused to [its] contents.” It should be noted that, at Vasaka’s request, Leaselex was named as an additional insured under the Pennsylvania policy. As he testified, Vasaka was unaware at the time of Moshiko and of its role as net lessee of the building. Varda’s present attempts to have the policy reformed to name Moshiko as a named insured take on a new light in view of this testimony. Whether the water damage legal liability endorsement would cover Moshiko, had it been named as an additional insured, for its liability in causing a water damage loss to Varda, the insured, is, of course, an issue we need not reach.
In any event, where the provisions of an insurance policy are clear, the contract must be enforced as written. (Cf., State of New York v Home Indem. Co., 66 NY2d 669.) A court may neither make nor vary an insurance contract by extending coverage beyond the fair intent and meaning of the agreement, and the liability of the insurer cannot be enlarged by implication beyond the express terms of the contract. (See, Jackson v Employers' Liab. Assur. Corp., 139 Misc 686, 688-689, affd 234 App Div 893, affd 259 NY 559; Astrin v East N. Y. Woodwork Mfg. Co., 210 App Div 720; 11 Couch, Insurance 2d § 44:7; 13 Appleman, Insurance Law and Practice § 7466.)
Concededly, where a question arises as to the meaning of a particular provision, or the provision is susceptible to more than one reasonable interpretation, all ambiguities must be resolved in favor of the insured. (Breed v Insurance Co., 46 NY2d 351, 353; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361; Murray Oil Prods. v Royal Exch. Assur. Co., 21 NY2d 440, 445; Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120, 125.) The rationale is that if the policy language is unclear and can reasonably be interpreted in a way that affords as well as excludes coverage, the ambiguity should be resolved against the insurer, the draftsman of the language. A court may not, however, find ambiguity in an insurance policy *176provision where none exists. (Sutro Bros. & Co. v Indemnity Ins. Co., 264 F Supp 273, affd 386 F2d 798; Loblaw, Inc. v Employers' Liab. Assur. Corp., 85 AD2d 880, affd 57 NY2d 872; Acorn Ponds v Hartford Ins. Co., 105 AD2d 723; see also, 11 Couch, Insurance 2d § 44:7.) As Justice Steuer of this court noted in his dissent in Perth Amboy Dry dock Co. v New Jersey Mfrs. Ins. Co. (26 AD2d 517, 518), "Ambiguity appears to be a disease to which insurance policies are peculiarly susceptible and no immunity from attack can be provided by the clearest language or the most unmistakable terms, if the result is not what the policyholder may have envisaged * * * The fact that plaintiff may have contracted for coverage that was of little use to it at the time [of the loss] does not mean that it is entitled to more beneficial coverage which it did not contract for.”
Those comments are of particular relevance here, where, despite the clear designation of the water damage endorsement as liability coverage, the motion court below rewrote the Pennsylvania policy to provide first-party water damage coverage for the contents of Varda’s store. As for the argument that a layman might infer first-party coverage, it is well established that "[t]he plain meaning of the policy language is not measured * * * by the understanding of a lay person, but by the understanding of a person engaged in the insured’s course of business.” (American Home Prods. Corp. v Liberty Mut. Ins. Co., 565 F Supp 1485, 1495, mod 748 F2d 760; see also, McGrail v Equitable Life Assur. Socy., 292 NY 419, 424-425.) In this connection, it should be noted that Varda’s principals are sophisticated businessmen who run a successful retail shoe operation on Manhattan’s upper East Side. Moreover, the question of the existence of an ambiguity or the degree thereof does not turn on the subjective understanding of one of the parties.
In any event, there is not one shred of evidence to indicate that Pennsylvania issued anything other than the coverage specifically ordered on Varda’s behalf by its broker, Seiger & Smith and Vasaka. This lawsuit started as a dispute between Varda and its broker, who are the only parties to any purported misunderstanding. Pennsylvania delivered the policy containing only the coverages that the broker asked it to issue. That policy did not contain personal property coverage for water damage. The courts cannot rewrite the policy.
The dispute regarding the insurance coverage that Varda now claims it wanted and what it actually received does not *177involve Pennsylvania, which is entitled to summary judgment dismissing the complaint. The complaint should be reinstated against Seiger & Smith and Vasaka.
Accordingly, the order of the Supreme Court, New York County (Alvin F. Klein, J.), entered February 5, 1987, which, inter alia, granted plaintiffs’ cross motion to the extent of awarding Varda, Inc. summary judgment on the first cause of action as to liability only, should be modified, on the law, to deny said cross motion in its entirety, to grant defendant Pennsylvania’s motion for summary judgment dismissing the complaint, to reinstate the complaint against defendants Seiger & Smith, Inc. and Steven A. Vasaka and, except as thus modified, affirmed, without costs or disbursements.
A third cause of action seeks reformation of Pennsylvania’s policy to name Moshiko as a named insured. The motion court properly refused to reform the policy in this regard and denied plaintiffs’ motion for summary judgment on that cause of action as well as on the second cause of action.
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01-13-2022
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was placed on keeplock status pending an investigation into a writing he transmitted to a professor working in the facility. At the conclusion of the investigation, petitioner was charged in a misbehavior report with violating prison disciplinary rules concerning facility correspondence procedures, harassment of employees and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of violating facility correspondence procedures and harassment of an employee. Upon administrative appeal, respondent modified the determination by reducing the penalty *1042imposed and otherwise affirmed. Petitioner then commenced this CPLR article 78 proceeding.
The misbehavior report, the testimony of the authoring correction officer and petitioner’s admissions that he composed the writings in question and transmitted them to the professor provide substantial evidence supporting the determination of guilt (see Matter of Messiah v New York State Dept. of Correctional Servs., 52 AD3d 1133, 1133 [2008]; Matter of Greci v Selsky, 8 AD3d 725, 725 [2004]). Petitioner’s testimony that he inadvertently sent one of the writings to the professor presented a credibility issue for the Hearing Officer to resolve (see Matter of Burgess v Goord, 294 AD2d 746, 746 [2002]). We also disagree with petitioner’s contention that he was improperly placed on keeplock status during the investigation period. Petitioner’s confinement was based upon a concern for the safety and security of the professor and her husband, who also worked in the facility (see Matter of Pettus v West, 28 AD3d 907, 908 [2006]). Petitioner’s remaining contentions are either unpreserved or have been considered and found to be without merit.
Mercure, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902125/
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OPINION OF THE COURT
Kane, J.
Plaintiff Lawrence Putnick (hereinafter plaintiff) is an employee of a subcontractor, third-party defendant Turner Telecommunications Systems Corporation (hereinafter Turner Telecommunications), a party to a contract with defendant Electronic Business Systems Corporation (hereinafter Electronic Business), providing for the installation of a new telecommunications system at the site of the renovation of a branch of defendant and third-party plaintiff Key Bank, N. A. (hereinafter Key Bank). Key Bank leased the site from defendant and third-party plaintiff Delaware Plaza Associates (hereinafter Delaware Plaza), the owner, together with defendant and third-party plaintiff H.M.C. Associates, of the land and the building situated thereon.
On June 1, 1984, plaintiff sustained a fracture to his elbow when he fell from a standard six-foot wooden stepladder during the course of installing telephone cables within the ceiling of the premises being renovated. He contends that while standing on the third rung of the ladder and reaching overhead, the ladder gave way beneath him causing his fall and resulting injuries. An action was commenced by plaintiff and his wife against H.M.C. Associates, Delaware Plaza and Key Bank for personal injuries and derivative damages based upon theories of negligence and violations of the Labor Law. In turn, third-party actions were commenced against defendant Chesebro-Whitman Manufacturing Company (hereinafter Chesebro-Whitman), the manufacturer of the ladder, defendant Albany Ladder Company (hereinafter Albany Ladder), the seller of the ladder to Turner Telecommunications, defendant Bunkoff Construction Company (hereinafter Bunkoff), the *182general contractor, and Turner Telecommunications. The cause of action against Bunkoff was dismissed on motion and it is no longer a party to this action.
Plaintiffs then amended their complaint to, inter alia, assert direct claims against Chesebro-Whitman and Albany Ladder for negligence and strict products liability. They also commenced a separate action against Electronic Business asserting negligence and Labor Law violations, which was then consolidated with the instant action. After joinder of issue, Chesebro-Whitman and Albany Ladder each separately moved for summary judgment dismissing the claims against them. Plaintiffs, for their part, moved for summary judgment against H.M.C. Associates, Delaware Plaza, Key Bank and Electronic Business based on the cause of action alleging a violation of Labor Law § 240. Electronic Business cross-moved for summary judgment against Turner Telecommunications seeking indemnification, while Turner Telecommunications moved for summary judgment dismissing the claim for indemnification against it for violation of Labor Law § 240. Supreme Court denied all of the motions and these cross appeals ensued.
We turn first to the question of whether Supreme Court properly denied the motions by Chesebro-Whitman and Albany Ladder for summary judgment dismissing plaintiffs’ claims against them for negligence and strict products liability. Plaintiffs’ reliance on these theories is predicated on the alleged defective manufacture of the ladder, its defective design and the failure to provide adequate warnings. To support their motions for summary judgment, Chesebro-Whitman and Albany Ladder submitted affidavits and pretrial testimony of an expert. The expert stated that based upon his inspection of the ladder after the accident, he found no defect in the wood or its other components and no defect in its design or in the manufacturing process. He also noted that the ladder had been equipped with warning instructions which had been physically attached to it. He concluded that the ladder had been fractured by a lateral blow to its side rail which caused it to break. Chesebro-Whitman and Albany Ladder also contended that upon inspection of the ladder prior to its sale, no defects were discovered.
In opposition, plaintiffs submitted pretrial testimony of plaintiff as to the circumstances of the accident. He alleged that at the time of the accident, he was on the third rung of the ladder and was lacing telephone cables over his head *183when he heard the sound of breaking wood and felt the ladder go out from beneath him. He stated that nothing struck the ladder during the time he was using it.
In our view, contrary to the assertions of ChesebroWhitman and Albany Ladder, plaintiffs were not required to submit expert testimony to rebut the expert’s conclusions. As it has been stated, "[n]o doubt utilization of expert testimony is the rule rather than the exception in this type of case, but, in the end, each case must be judged upon its own facts” (Jackson v Melvey, 56 AD2d 836, 837; see, Johnson v Michelin Tire Corp., 110 AD2d 824). The decisions in Powles v Wean United Corp. (126 AD2d 624, appeal dismissed 69 NY2d 1016) and Bingham v Godfrey (114 AD2d 987, appeal dismissed 67 NY2d 753), which Chesebro-Whitman and Albany Ladder cite for support, are inapposite. Although both cases noted that expert affidavits were required to rebut a prima facie showing by the movants for summary judgment in products liability causes of action, the only evidentiary proof submitted in opposition in each case was an attorney’s affidavit without personal knowledge of the facts. In contrast, here, plaintiff’s testimony was based on his own personal knowledge.
Nevertheless, even if it is accepted that plaintiffs were not required to submit expert testimony, it is still necessary to determine whether the evidence they did present was sufficient to defeat the motions by Chesebro-Whitman and Albany Ladder for summary judgment. As noted, plaintiffs alleged defects in the manufacture of the ladder, in its design and the failure to give adequate warnings (see, Robinson v Reed-Prentice Div., 49 NY2d 471, 478-479). In our view, plaintiffs sufficiently demonstrated a question of fact as to the defective manufacture of the ladder. Plaintiffs did not submit direct proof of a defect in the ladder; however, a defect in a product may be inferred from circumstantial evidence that the product did not perform as intended (see, Codling v Paglia, 32 NY2d 330, 337).* Here, plaintiff’s testimony that he heard the ladder crack permits the inference that the ladder did not perform as intended. Chesebro-Whitman claims that plaintiffs were required to exclude all causes of the accident not attributable to it. However, the cases it cites for support all involved trials and not motions for summary judgment (see, *184Halloran v Virginia Chems., 41 NY2d 386; Edwards v Nemenyi, 92 AD2d 785, affd 61 NY2d 800; Fox v Corning Glass Works, 81 AD2d 826). Furthermore, there is evidence in the record that the defect existed while the ladder was in Chesebro-Whitman’s control. Thus, Supreme Court properly denied the motions for summary judgment on plaintiffs’ claims predicated on defective manufacturing.
However, we reach a different conclusion with respect to plaintiffs’ allegations of a design defect and the failure of adequate warnings. Plaintiffs presented no testimony or any evidence to demonstrate an inherent defect in the ladder’s design or that "it was feasible to design [the ladder] in a safer manner” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108). The same is true of the claim for inadequate warnings (see, Rainbow v Elia Bldg. Co., 49 AD2d 250, 253). Here, warnings were affixed to the ladder and plaintiff acknowledged that he saw them, although he could not recall what they said. Plaintiff offered nothing to demonstrate that the warnings provided were inadequate. Reasonableness is the standard against which liability is imposed for design defects, the same standard applicable in negligence cases generally (see, Bolm v Triumph Corp., 33 NY2d 151, 157-158), and a plaintiff is required to demonstrate that a defendant failed to give adequate warnings, the standard again being the same as the one applied in negligence (see, Rainbow v Elia Bldg. Co., supra, at 253). Thus, dismissal of both the negligence and strict products liability causes of action to the extent that each is based on design defects and inadequate warnings was required upon plaintiffs’ failure to meet the above requirements of proof. Therefore, Supreme Court improperly denied the motions by Chesebro-Whitman and Albany Ladder with respect to the negligence and strict products liability claims predicated on design defects and inadequate warnings.
We turn next to plaintiffs’ claim against H.M.C. Associates, Delaware Plaza, Key Bank and Electronic Business for violation of Labor Law § 240. Plaintiffs allege improper placement and defective construction of the ladder. Turner Telecommunications sought summary judgment claiming that the statute was inapplicable to the type of work at issue, while plaintiffs sought summary judgment in their favor on the issue of liability under Labor Law § 240.
Whether the installation of the telephone cables falls within the statute’s ambit cannot be resolved as a matter of law at this juncture. Turner Telecommunications claims that *185Labor Law § 240 applies only to work which is permanent in nature and must be part of the structure of the building, while plaintiffs assert that the cables did become part of the building’s structure and that their installation was identical to the electrical wiring of a building. Given the factual dispute and the lack of more information regarding the precise nature of plaintiff’s work, Supreme Court properly denied the motions for summary judgment by plaintiffs and Turner Telecommunications.
Finally, we address Electronic Business’ motion for summary judgment against Turner Telecommunications. It claimed that it was entitled to indemnification in the event it was found liable on plaintiffs’ claim against it for violation of Labor Law § 240. However, insofar as no determination has as yet been made as to the respective parties’ fault, this claim for indemnification is premature (see, Yager v Arlen Realty & Dev. Corp., 95 AD2d 853; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 366, appeal dismissed 58 NY2d 824; cf., Kelly v Diesel Constr. Div., 35 NY2d 1; Glielmi v Toys "R" Us, 94 AD2d 663, affd 62 NY2d 664).
Mahoney, P. J., Casey, Weiss and Mercure, JJ., concur.
Order modified, on the law, without costs, by reversing so much thereof as denied the motions by defendants ChesebroWhitman Manufacturing Company and Albany Ladder Company for summary judgment seeking dismissal of plaintiffs’ claims for negligence and strict products liability premised upon defective design of the ladder and failure to provide adequate warnings; these motions are granted to that extent and those causes of action are dismissed against said defendants; and, as so modified, affirmed.
Both a manufacturer and a retailer may be found liable under a strict products liability theory even though the latter did not manufacture the product (see, Mead v Warner Pruyn Div., 57 AD2d 340).
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01-13-2022
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Judgment of County Court and of Justices’ Court reversed, with costs. Opinion by
Bockes, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6826223/
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OPINION
REGINALD W. GIBSON, Judge:
INTRODUCTION
Plaintiff, Raymark Industries, Inc. (hereinafter plaintiff or Raymark), a Connecticut corporation engaged in the manufacture of truck parts, filed this federal excise tax refund suit against the United States (defendant herein) on April 8, 1986. Therein plaintiff seeks a refund of approximately $475,982.06 representing manufacturer’s federal excise taxes (i.e., floor stock refund *335claim) that plaintiff alleges were erroneously and illegally retained by the defendant. Jurisdiction is premised in this court under 26 U.S.C. § 74221 and 28 U.S.C. § 1491(a)(1).
Subject action is presently before the court on the Motion of the United States To Dismiss the Complaint pursuant to RUSCC 12(b)(1) and 12(h)(3).2 The issue before us is whether the plaintiff meets the jurisdictional prerequisite of 26 U.S.C. § 7422 of having “duly filed” the relevant claim for refund with the Internal Revenue Service (I.R.S. or Service).3 That is to say, the court’s specific focus is — whether in fact plaintiff timely filed its refund claim with the I.R.S., i.e., before October 1, 1983, as contemplated by the manufacturer’s excise tax repeal provisions codified at 26 U.S.C. § 4061 notes (1988 Supp.), Pub.L. 97-424, Title V, § 522 and 26 U.S.C. § 7422.4
In that connection, the pleadings indicated to the court that explication of the timely filing issue required a hearing and the taking of testimony. This was so because the criticality of the answers demanded not only that they be made under oath in open court, but that the court have an opportunity to weigh and evaluate the credibility of all witnesses testifying' on said issue.
Upon review of the evidence adduced during the July 27 and 29, 1988 evidentiary hearings, as to the date subject claim was actually filed, we are constrained to find that the plaintiff fails to meet its burden of proof relative thereto. In other words, creditable probative evidence was wanting as to the specific date the claim was actually posted. Accordingly, we dismiss this action for lack of subject matter jurisdiction, without addressing the other aforementioned jurisdictional issue raised by the defendant in its motion to dismiss.
STATEMENT OF FACTS
Generally, in addressing a jurisdictional question, the court must accept plaintiff’s (i.e., the non-movant) undisputed allegations of fact as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Reynolds v. Army and Air Force Exchange Service, 846 F.2d 746, 747 (Fed.Cir.1988). However, to the extent that disputed facts are decisive of the jurisdictional issue, i.e., that there is a factual attack on jurisdiction, the court “is obliged to look beyond the pleadings and decide for itself those facts, even if in dispute, which are necessary for a determination of [the] jurisdictional merits.” See LaMear v. United States, 9 Cl.Ct. 562, 568 n. 6, aff'd, 809 F.2d 789 (1986); accord, Mark Smith Const. Co., Inc. v. United States, 10 Cl.Ct. 540, 541 n. 1 (1986); Fidelity & Deposit Co. of Maryland v. United States, 2 Cl.Ct. 137, 145 (1983). In the instant case, the disputed factual issue, i.e., the timeliness of the filed refund claim, is decisive of the jurisdiction*336al issue postured sua sponte by the court. Accordingly, in addressing said issue, the court finds the following facts, infra.
Raymark manufactures and sells, inter alia, truck brake parts that were subject to an excise tax under the 1954 Internal Revenue Code, 26 U.S.C. § 4061(b). Effective January 7, 1983, I.R.C. § 4061(b) was repealed by the enactment of the Highway Revenue Act of 1982, 26 U.S.C. § 1 et seq., Pub.L. 97-424, 96 Stat. 2168. The relevant repeal provisions are codified at 26 U.S.C. § 4061 notes (1988 Supp.), Pub.L. 97-424, Title V, §§ 521-523, 96 Stat. 2184-2187. Under the repeal provisions, taxpayers could obtain refunds (i.e., floor stock refunds) of taxes paid on items held in inventory by distributors and customers (dealers) as of January 7, 1983.
As of January 7, 1983, plaintiff’s numerous distributors and customers were holding floor stock inventory covered by the refund provisions. Accordingly, said distributors and customers submitted to Ray-mark requests for refund of floor stock inventory taxes that previously had been paid by them. Plaintiff avers that the distributors and customers requested refunds totalling at least $475,982.06, and that the written requests were received by it prior to July 1, 1983.5 Plaintiff either paid the requested refunds to its distributors/customers, or obtained written consent from the distributors and customers that it be permitted to seek from the Internal Revenue Service on their behalf such floor stock refunds that were allowable. This circumstance also permitted plaintiff to seek refunds from the Service on its behalf in instances where it had previously refunded the tax to its distributors.
Consequently, on September 30, 1983, plaintiff allegedly mailed to the I.R.S. in Andover, Massachusetts (hereinafter And-over), I.R.S. Form 843, its claim for refund of excise taxes totalling $475,982.06, imposed by the Service under § 4061(b) with respect to the aforementioned inventory. The envelope in which the claim was mailed was postmarked by private meter with a stamped date of Friday, “September 30, 1983.” No United States Postal Service postmark appears anywhere on the envelope. Defendant’s Exhibit 3. The foregoing claim for refund was in fact received by the Service on October 7, 1983, as evidenced by the I.R.S. date stamp placed on the backside of the envelope. Defendant’s Ex. 3.6 The I.R.S., based upon the October 7, 1983 receipt date, denied the claim as untimely filed without addressing the merits thereof.
CONTENTIONS OF PARTIES
Because the jurisdictional question may be definitively resolved on the basis of our findings, with regard to whether the refund claim was timely filed, the contentions set forth below will only address that aspect of the parties’ arguments.7
1. Plaintiff
Plaintiff contends that its floor stock refund claim, Form 843, which was mailed in a privately postmarked envelope that bore such privately postmarked date within the statutory period (i.e., September 30, 1983), was received by the I.R.S. within the time frame that other first-class mail would ordinarily have been received. Treas.Reg. § 301.7502-l(c)(iii)(b). Specifically, plaintiff advances the position that its privately postmarked claim, allegedly mailed from Trumbull, Connecticut (hereinafter Trum*337bull) on September 30, 1983, reached the I.R.S.’s Andover Center within the ordinary-period that a first-class United States Postal Service postmarked letter would have reached such destination if mailed from Trumbull with proper postage. Thus, plaintiff maintains that its claim was timely filed pursuant to statutory and regulatory requirements, and that the court, therefore, has jurisdiction to entertain the instant complaint.
2. Defendant
Contrastingly, defendant asserts that in order to satisfy the statutory limitations requirement of § 522(a), plaintiff must prove by a preponderance of the evidence that its claim for refund was actually deposited in the United States mail before October 1, 1983. Moreover, defendant asserts that plaintiff must also prove that the claim so posted was actually received by the I.R.S. within the ordinary time frame that a first-class United States Postal Service postmarked letter, with proper postage, would have been received if mailed from plaintiffs place of origin in Trumbull on September 30,1983, to defendant’s place of destination in Andover. If the plaintiffs claim was not received within that “reasonable time frame” (and defendant contends that it was not), then the plaintiff must further demonstrate that the claim was delayed in the transmission of the mail and the cause of such delay.
3. Scope of the Court’s Opinion
Against this background, the court will first address the burden of proof the plaintiff must meet in order to establish that its complaint is properly within our jurisdiction. Next, we will briefly outline the statutory basis for our authority to review plaintiffs refund claim. We will then set forth the statutory limitations placed upon the plaintiff which affect the contingency of this court’s jurisdiction. Finally, after delineating the jurisdictional elements the plaintiff must satisfy, based upon the aforementioned statutory limitations, we will assess whether the plaintiff fulfills the statutory and regulatory requirements.
ISSUE
Jurisdiction cannot be conferred by the parties upon the federal courts by consent or waiver thereof, for a court may not decide the merits of a case if it lacks jurisdiction over the subject matter. See Knight v. United States, 10 Cl.Ct. 685, 689 (1986), citing, John C. Grimberg Co., Inc. v. United States, 1 Cl.Ct. 253, 254 (1982), aff'd, 702 F.2d 1362 (Fed.Cir.1983). Hence, this court has a duty to consider, sua sponte, whether jurisdiction is properly invoked. RUSCC 12(h)(3); see Arctic Corner, Inc v. United States, 845 F.2d 999, 1000 (Fed.Cir.1988); Fincke v. United States, 230 Ct.Cl. 233, 247, 675 F.2d 289, 297 (1982). “The [timely] filing of a claim for refund with the I.R.S. is a jurisdictional requirement for a suit in federal court.” 26 U.S.C. § 7422(a); Buttke v. United States, 13 Cl.Ct. 191, 192 (1987). To this degree, then, the dispositive issue in this case is — whether the plaintiff timely filed the subject Form 843 refund claim with the I.R.S. Inasmuch as we conclude herein that the plaintiff utterly fails to offer one scintilla of probative evidence supportive of a finding that the refund claim was duly filed with the I.R.S. before October 1,1983, this action must be dismissed for lack of subject matter jurisdiction. RUSCC 12(b)(1).
DISCUSSION
1. Burden of Proof
It is axiomatic that the party seeking to invoke federal court jurisdiction bears the burden of establishing that such exists. See Miller v. United States, 784 F.2d 728, 729 (6th Cir.1986) (per curiam); Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.1977), citing KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 Z.Ct. 197, 200, 81 L.Ed. 183 (1936). However, the determination of the appropriate quantum of the burden that the plaintiff must clear will rest upon such factors as the nature of the proceeding and the type of evidence the plaintiff is permitted to present. Id. Thus, the limits imposed by the trial judge upon pretrial proceedings will dictate the burden the plaintiff is required to meet. Id.
*338For example, if the court limits the parties’ submissions, with regard to the jurisdictional issue, to merely affidavits or affidavits plus discovery materials, “these very limitations dictate that a plaintiff must make only a prima facie showing of jurisdictional facts through the submitted material in order to avoid a defendant’s motion to dismiss.” Id.; see also A.B. Kyle v. Continental Capital Corp., 575 F.Supp. 616, 619-20 (D.Pa.1983). This is equitable because any greater burden “would permit a defendant to obtain a dismissal simply by controverting the facts established by a plaintiff through his own affidavits and supporting materials.” Data Disc, Inc., 557 F.2d at 1285.
On the other hand, where, as in the instant case, the court exercises its discretion and takes evidence at a preliminary hearing in open court in order to resolve contested factual issues, the plaintiff must then be put to its full burden of proof. That is to say, “in [such] situation, ... plaintiff must establish the jurisdictional facts by a preponderance of the evidence, just as [it] would have to do at trial.” Data Disc, Inc., 557 F.2d at 1285, citing to, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). This court afforded plaintiff, in the case at bar, the opportunity to establish jurisdiction through a full evidentiary hearing on the issue of timely filing. Accordingly, in analyzing the documentary evidence and testimony adduced by the plaintiff during the evidentiary hearings conducted on July 27 and 29, 1988, we hold plaintiff to the burden of establishing that jurisdiction indeed exists, by a preponderance of the evidence.
2. Jurisdiction Under 26 U.S. C. § 7422
This court’s threshold jurisdiction to review the merits of plaintiff’s refund claim is circumscribed by 26 U.S.C. § 7422(a). See note 1, supra, for relevant portions thereof. Trout v. United States, 1 Cl.Ct. 219, 221 (1983). Consequently, it can be seen that “[a]n untimely claim for refund tax under Title 26, U.S.C. is not a ‘duly filed’ claim within the contemplation of the aforementioned section,” and therefore, not within the jurisdiction of this court to review. Trout, 1 Cl.Ct. at 221. In this context, the word “duly” signifies that the document is, “in due or proper form”; and “filed” indicates that the document has been received, i.e., “delivered ... to the proper officer or official for purposes of being kept on file by him as a matter of record and reference in the proper place.” Black’s Law Dictionary 450, 566 (5th ed. 1979); accord, Buttke, 13 Cl.Ct. at 192. Next, this court must continue its analysis by defining the jurisdictional limitations, if any, imposed upon the plaintiff under the Highway Revenue Act of 1982, § 522(a), with respect to the filing of a floor stock refund claim pursuant thereto.
a. Requirements under § 522(a)
As previously stated, § 522(a) permits the refund of certain excise taxes (floor stock refunds) paid by manufacturers, producers, or importers with respect to “any article on which a tax was imposed by section 4061(a) [or] 4061(b) ... as in effect on the day before the date of the enactment of [the] Act and which [would] not be subject to tax under section 4061(a) [or] 4061(b) ... as in effect on the day after the date of the enactment of [the] Act.” 26 U.S.C. § 4061 notes (1988 Supp.), Pub.L. 97-424, 96 Stat. 2186-87. Specifically, the Act provides that a credit or refund shall flow (without interest) to the manufacturer, producer, or importer equal in amount to the tax paid by it if—
(A) claim for such credit or refund is filed with the Secretary of the Treasury or his delegate before October 1, 1983 based on a request submitted to the manufacturer, producer, or importer before July 1, 1983, by the dealer who held the article in respect of which the credit or refund is claimed, and,
(B) on or before October 1, 1983, reimbursement has been made to the dealer by the manufacturer, producer, or importer in an amount equal to the tax paid on the article or written consent has been obtained from the dealer to allowance of the credit or refund.
96 Stat. 2185, § 522(a)(1) (emphasis added). Thus, the foregoing statute denotes three *339jurisdictional criteria that must be satisfied —(i) the claim must be filed before October 1, 1983; (ii) the claim must be premised on a request submitted to the manufacturer by the dealer before July 1, 1983; and (iii) on or before October 1, 1983, reimbursement has been made to the dealer by the manufacturer or written consent has been obtained from the dealer — before a duly filed return is established under § 7422. Said criteria are in the conjunctive, i.e., all must be met, and if one is lacking, then this court is without jurisdiction. There is no issue as to the second and third criteria, and we find that they have been met. The problem here is that the evidence adduced at the evidentiary hearing, discussed infra, does not disclose that plaintiff’s claim was filed on or before September 30, 1983, as it must.
Plaintiff asserts that it did in fact make such filing because it “mailed” its claim for refund to the Service Center located in Andover on September 30, 1983. Moreover, plaintiff ontends that such timely mailing is conclusively evidenced by the presence of the private postage meter stamp that appears on the front of the envelope in which the claim was mailed. Defendant’s Ex. 3. Therefore, argues plaintiff, the “timely mailed-timely filed” rule codified at 26 U.S.C. § 7502 is probative of its assertion of timeliness.8
Section 7502 of the Internal Revenue Code was enacted as a remedial provision to alleviate inequities arising from differences in postal delivery from one part of the country to another. See Miller, 784 F.2d at 730; Storelli v. Commissioner of Internal Revenue, 86 T.C. 443, 447 (1986). The relevant sections provide that, if any claim required to be filed on or before a prescribed date under authority of any provision of internal revenue law is, after such date, delivered by United States mail to the agency or office with which such claim must be filed, the date of the United States postmark stamped on the cover shall be deemed to be the date of delivery. 26 U.S.C. § 7502(a)(1). However, the deemed mail date is applicable only if the postmark date falls within: (i) the prescribed period, or (ii) is on or before the prescribed date for the filing, and the claim, within the prescribed period, was deposited in the mail, in the United States, in an envelope, postage prepaid, and properly addressed to the agency with which the claim was to be filed. 26 U.S.C. § 7502(a)(2)(A) and (B).
The first obstacle encountered by the court in the instant matter is the fact that the envelope in which the subject refund claim was mailed contains no United States Postal Service postmark. Given this circumstance, then § 7502(a)(1), of course, is inapplicable to establish a deemed timely filing. On the other hand, as previously stated, the only evidence of the date of mailing the claim in issue is the privately metered postmark date affixed by an unknown employee of the plaintiff. *340In this connection, the Secretary of the Treasury, pursuant to its delegated authority under 26 U.S.C. § 7502(b), has prescribed appropriate regulations setting forth the circumstances under which a privately metered postmark date will be deemed to constitute a timely filing pursuant to the “timely mailed-timely filed” rule. See generally, Shipley v. Commissioner of Internal Revenue, 572 F.2d 212, 213-14 (9th Cir.1977) (per curiam). “When the statute does allow the date of mailing to be shown by evidence other than tangible evidence of a mark made by the post office, the regulations [Treas.Reg. § 301.7502-l(c) (l)(iii)(b)],9 require a showing by way of facts beyond the taxpayers control [that] independently corroborate the date of mailing.” Shipley, 572 F.2d at 514.10
The regulations expressly provide that in a situation, such as the one currently before the court, where the postmark on the envelope is made by other than the United States Postal Service, i.e., by a private person utilizing the postage meter: (1) the postmark must bear a date on or before the last date, or last day of the prescribed period for filing the document, and (2) the document must be received by the agency, or office with which it is required to be filed not later than: (a) the time when a document contained in an envelope which is properly addressed and mailed and sent by the same class of mail would ordinarily be received if it were postmarked at the same point of origin by the United States Post Office on the last date; or (b) the last day of said prescribed period for filing. Treas. Reg. § 301.7502-l(c)(l)(iii)(b).11 Relative to *341the facts presently in dispute, plaintiff asserts that its claim was received within the ordinary period that a United States Postal Service postmarked first-class letter would have reached the Service in Andover during the relevant period in 1983. Because of this assertion, plaintiff did not offer proof designed to establish that there was a delay by the Postal Service in the transmission of subject refund, and the cause of such delay. Accordingly, this court’s analysis will address only four elements of proof that the plaintiff must offer (see note 11, supra).
Summarizing, inasmuch as plaintiff’s claim was received by the Service in And-over after the September 30, 1983 deadline for filing same, it must prove four elements under Treas.Reg. § 301.7502-l(c)(iii) (b) in order to satisfy the “timely mailed-timely filed” exception thereunder. Sharply stated , the plaintiff is compelled to offer proof, by a preponderance of the evidence, that: (1) the refund claim was deposited in the mail on September 30,1983; (2) the proper postage was prepaid; (3) the envelope was properly addressed to the Service in Andover; and (4) the claim for refund was received in Andover during that ordinary period that first-class mail originating from Trumbull and bearing proper postage and a United States Postal Service postmark of September 30, 1983 would have been received in Andover.
b. Whether the Claim was Deposited in the Mail on September 30, 1983
In support of its assertion that the refund claim was placed in the mail on September 30, 1983, plaintiff offered the testimony of one of the two Raymark Industries’ mail clerks (Vertucci) who would have been scheduled to work on that date; and the testimony of the Supervisor of the Raymark Industries Tax Department (Mohs), who prepared the floor stock refund claim that was allegedly mailed on September 30, 1983. Notwithstanding this testimony, for the reasons stated infra, we find that the plaintiff fails to establish by a preponderance of the evidence that its claim for refund was deposited in the mail in Trumbull on or before September 30, 1983.
Vertucci testified that his duties as a Raymark Industries mail clerk required that he pick up, meter, and bundle outgoing mail, and that he place said mail in a canvass bag for pickup by a United States Postal Service courier. Tr. 20. Vertucci claimed to have routinely followed the procedures outlined above as part of his employment as a Raymark mail clerk. Tr. 20.
The court notes, however, that several vital points were not established by plaintiff through witness Vertucci. The plaintiff failed to establish (or even assert) that Vertucci worked on September 30, 1983, and the witness had no present recollection of that fact. Tr. 51. Therefore, the plaintiff could not possibly establish that the claim was “placed in the mail” by Vertucci on September 30,1983, because the witness could not testify that he worked on that date. When specifically asked by the court, he answered — “No, I can’t really say that I was [at work on September 30, 1983].”
Moreover, the plaintiff failed to establish that the witness saw said refund claim placed in the mail. Vertucci testified that: (a) he had no idea exactly what items were mailed from the Raymark mailroom; (b) he lacked any information as to the contents, of the various envelopes that he placed in the mail bags; and (c) he did not know to what location such mail was ultimately destined. Tr. 53. Based upon this unequivocal testimony, we find that, even assuming arguendo that plaintiff had proven that Vertucci did work on September 30, 1983, the witness’s testimony could not establish by the requisite quantum of proof that he, or anyone else, placed subject claim (Form 843) in the mail on that date. Tr. 30.
The plaintiff also failed to establish that Vertucci had exclusive control over the postage meter machine. Although Vertuc-ci at one point claimed to have possession of the postage machine key, this testimony is of little significance. He later testified that the key to the postage meter was “in the machine” when he took the position in the mailroom, Tr. 51; that he did not keep *342the key on his person at all times, Tr. 29-30 and 55-56; and that he did not know whether his key was the only key, Tr. 52 and 55-56. Against this background, the court concludes and finds that the plaintiff did not establish that the postage machine key was in the exclusive control of this witness. Finally, the court is troubled by other testimony, infra, elicited from this witness because such is damaging to the plaintiffs position.
For example, Yertucci testified that the mailroom was never locked, and also that the date on the postage machine would have remained set on Friday, September 30,1983, until he changed it that following Monday, October 3, 1983. Tr. 29 and 54-55. Moreover, although Vertucci tied the use of the key to the changing of the date on the postage machine, he did not testify that the key was needed to run mail through the machine. In other words, the witness did not established that the practice in the Raymark mailroom was to lock the postage function of the machine. Arguably, the machine could have been locked with regard to the date function (obviating a change), but the postage function could have been left operable. In that event, someone could have come to the mailroom between 5:00 p.m. on Friday, September 30, 1983, and Vertucci’s starting time on Monday, October 3, 1983, and “run” an envelope through the machine, thus generating an envelope with a postage date of September 30, 1983.
Based upon the foregoing analysis, we conclude and find that Vertucci’s testimony is of de minimis, if any, probative value, with regard to the question whether the refund claim at issue was actually placed in the mail on September 30, 1983, and consequently frustrates the burden plaintiff must satisfy.
The testimony of Mr. Mohs, Raymark’s Tax Department supervisor, is similarly deficient with respect to the dispositive issue at hand, i.e., the timely posting of the refund claim. Mr. Mohs testified that he prepared I.R.S. Form 843 on either September 29 or September 30,1983. Tr. 335. On one of those dates, he gave his handwritten notes to his secretary to type. Tr. 336. She returned such to him on that (undeter-minable) date, at which time he reviewed same and took it personally to the Treasurer of Raymark Industries for signature. Tr. 336.12 However, Mohs could not remember whether he handed the claim to the Treasurer to sign or whether he gave it to the Treasurer’s secretary. Tr. 336-37. Because the testimony failed to unequivocally establish either the date the Treasurer received the refund claim or even the date it was prepared, it is of little significance relative to the issue of the timely filing of such.
Moreover, considering the crucial facts that this witness could not remember, the court is convinced that the veracity of Mohs’ testimony, i.e., that he is certain that the claim was signed and on his desk on September 30, 1983, Tr. 338, is question- • able, at best. Specifically, Mohs could not remember the day of the week the claim was mailed, Tr. 338; whether he spoke to the Treasurer after the claim was signed, Tr. 339; or how the claim came about being returned to his office, Tr. 339. Yet, Mohs “confidently” testified that he knew the signed claim was in his office on the date September 30, 1983. Again, such testimony does not convince the court relative to the issue at hand.
*343Finally, notwithstanding these statements, other portions of Mohs’ testimony can only be characterized as unpersuasive on the plaintiffs position. Mohs testified that, after reviewing the signed refund claim, he “gave it to [his] secretary to mail,” Tr. 339, and that he “stuffed it in the envelope,” Tr. 339. He then stated that he did not remember whether the envelope that would have contained the refund claim was attached to the materials he gave to his secretary to mail, inferring that he did not, in fact, “stuff” the claim into the envelope, Tr. 340.13 Mohs never personally operated the meter machine, nor does he know who operated same on September 30,1983. Tr. 278. He could testify neither that his secretary, in fact, delivered the relevant claim to the mailroom on September 30, 1983, nor that it was picked up by mailroom personnel on that date, because, after delivering such to his secretary, he had no further “involvement” with the claim. Tr. 341.
Reviewing in to to the testimony of Ver-tucci and Mohs on the issue of — whether the refund claim was placed in the mail on September 30, 1983, aside from the private stamped date on the envelope which we do not find to be ipso facto probative of the ultimate fact, the court is constrained to conclude that such testimony is totally void of one scintilla of persuasive proof that the event, in fact, occurred. Even though “proof” is arguably an ambiguous word, it is safe to conclude here that “ ‘proof’ is the end result of conviction or persuasion produced by the evidence.” C. McCormick, McCormick’s Handbook of the Law of Evidence § 336 (1972). At the outset, this plaintiff bore the onerous burden of proving, by a preponderance of the evidence, its assertion that the subject claim was “placed in the mail” on September 30,1983. Such burden of proof necessitates the introduction of evidence that would lead the trier of facts to conclude, based thereon, that the facts to be proven are (a) almost certainly true; (b) highly probably true, or (c) probably true. McCormick, supra, citing to, McBaine, Burden of Proof: Degrees of Belief, 32 Calif.L.Rev. 242 (1944); see also Burch v. Reading Co., 240 F.2d 574, 579 (3d Cir.), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914 (1957). However, neither Vertucci nor Mohs contributed in any meaningful way to the introduction of such evidence. Thus, their testimony failed to convince or persuade this court by a preponderance of the evidence that the refund claim was placed in the mail on September SO, 1983.
Based on the foregoing, the court concludes that the plaintiff presented no relevant, probative testimony, or other evidence, tending to establish that the subject refund claim was in fact placed in the mail on September 30,1983. Therefore, we hold that the plaintiff fails to meet its burden of proof by a preponderance of the evidence and, consequently, has failed to establish that the jurisdiction of this court is properly invoked. Accordingly, inasmuch as failure to establish the previously discussed element is fatal to the plaintiff’s case, the court must conclude it lacks jurisdiction over the subject matter of this case.14
*344c. Summary of Remaining Elements
Whereas plaintiffs failure to meet its threshold burden is fatal to this court’s jurisdiction, the court need only superficially address the remaining elements.
Defendant’s Exhibit 3 establishes that the postage was prepaid and that the envelope was properly addressed. Consequently, the only remaining element that plaintiff was required to establish by a preponderance of the evidence was that the refund claim was received during the ordinary period that first-class mail originating from Trumbull and bearing a United States Postal Service postmark would have been received in Andover. Treas.Reg. § 301.7502 — l(c)(iii)(b).
As direct evidence in support of this proposition, plaintiff tendered either copies or originals of certified mail receipts sent from Raymark Industries in Trumbull to the I.R.S. in Andover. Plaintiff also presented the testimony of a Mr. Sea-graves, a former Postal Service Information Officer and current publisher of “The Business Mailer’s Review.” Tr. 60.15
Addressing first, the “expert” testimony of Seagraves, the court concludes that such was substantially wanting with regard to the facts that were to be established. Sea-graves was proffered as an expert witness on the United States Postal Service procedures, specifically with respect to the handling of mail from Trumbull to Andover. Tr. 73. Such testimony also covered certified mailing procedures. Tr. 77-82. However, the witness was a “public information/public relations” person, Tr. 64, who had never personally conducted any statistical analyses, Tr. 65, or scientific studies or surveys relative to Postal Service procedures. Tr. 69, 71. He had never been to Trumbull, or Andover, and he never performed work for anyone in those locations that might remotely have lent credibility to his testimony or probativeness to the issue pursued. Tr. 74. In sum, said witness had performed absolutely no work (i.e., studies, etc.) relative to the movement of mail from Trumbull to And-over.
Turning to the “certified receipts,” and connecting such to the testimony of Sea-graves, we likewise conclude that their use as “evidence” of the “ordinary delivery time” from Trumbull to Andover lacked probative value. These documents ostensibly were offered to establish that the delivery time from Trumbull to Andover was approximately six to eight days. Plaintiff had previously presented testimony that Raymark employees filled in the mailing date on the certified receipt and either tore the receipt off for safekeeping, or forwarded the receipt to the mailroom for dating, at which time they were torn off by a Raymark mail clerk. Tr. 22. None of these receipts were tendered directly to the United States Post Office for certification, i.e., dating.
Witness Seagraves, in response to the question, “Suppose I put a piece of certified mail in a mailbox ...,” responded, “Well, you wouldn’t do that because the post office has to accept your certified mail, so you would go to a post office, or a postal facility to have a record that you have in fact mailed that piece of mail; and they would give you a receipt or a stub that would show that you had in fact tendered that piece of mail.” Tr. 77-78. “[I]t wouldn’t be certified mail if the sender didn’t have a receipt [stamped by the *345United States Postal Service],” Seagraves testified. Tr. 78 (emphasis added).
Thus, the exhibits that plaintiff tendered as certified mail receipts in order to show the reasonable travel time from Trumbull to Andover, in fact, raise a question as to whether they represent properly certified mail. Accordingly, we hold that said receipts were of miniscule probative value in establishing whether its refund claim arrived within the ordinary period United States Postal Service postmarked mail (or certified mail) would have arrived, even if the plaintiff had proven that it actually deposited the refund claim in the mail on September 30, 1983.
CONCLUSION
Given the foregoing jurisdictional defect, we find that plaintiff has failed to prove that the refund claim asserted herein is within the power of this court to review. Accordingly, we dismiss the complaint for lack of subject matter jurisdiction. The Clerk shall enter judgment accordingly. Costs shall be assessed against the plaintiff.
IT IS SO ORDERED.
. 26 U.S.C. § 7422, Civil actions for refund, provides, in relevant part, as follows:
(a) No suit prior to filing claim for refund. —No suit ... shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally ... collected ... or in any manner wrongfully collected, until a claim for refund ... has been duly filed with the Secretary, according to ... law ... and ... regulations_
. By statute, this court lacks jurisdiction over a civil action for refund of taxes unless a claim has been filed with the Service within the applicable period of limitation. 26 U.S.C. § 6402; Treas.Reg. § 301.6402-2(c). Moreover, Rule 12(h)(3) of the United States Claims Court provides that, "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."
. During oral argument on defendant's motion to dismiss, the parties stated that the timeliness issue was not presently before the court. The defendant's motion to dismiss, therefore, was predicated on the theory that the "statement” required to be "submitted in support of the claim” was a jurisdictional prerequisite, under Temporary Excise Tax Regulations § 145.1-l(d)(2), and failing such, plaintiff omitted filing a "duly filed” return as required by 26 U.S.C. § 7422. Thus, the argument was that this court lacked RUSCC 12(b)(1) subject matter jurisdiction. However, inasmuch as we find the timeliness of the filed claim to be the critical threshold issue affecting the jurisdiction of this court, we sua sponte place that matter in issue.
. The I.R.S. denied the plaintiffs claim for refund as untimely without reaching the merits thereof.
. Plaintiff admits that approximately $49,027.11 of the claimed refund amount represents requests received from distributors and customers after the July 1, 1983 deadline.
. Upon receipt, mail is processed through a mail processing machine by the Internal Revenue Service in Andover. This machine stamps such mail, designating the date of actual physical receipt. During peak periods, when the mail received is too voluminous to be processed in one day, the mail is segregated and later processed through the mail processing machine with a stamp date of the actual date received by the Service. Tr. 170-173.
.Notwithstanding our disposition, the court notes that plaintiff presented a well reasoned argument with regard to its assertion that Treas. Reg. § 145.1-1 was «of jurisdictional. In short, plaintiff avers that the requirements therein, with regard to submission of the “statement,” was purely a procedural criterion in establishing the merits. However, we find it unnecessary to express an opinion on the point postured.
. 26 U.S.C. § 7502 provides in relevant part:
§ 7502. Timely mailing treated as timely filing and paying (a) General rule.—
(1) Date of delivery. — If any ... claim ... required to be filed ... within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency ... with which such ... claim ... is required to be filed, ... the date of the United States postmark stamped on the cover in which such ... claim ... is mailed shall be deemed to be the date of delivery....
(2) Mailing requirements. — This subsection shall apply only if—
(A) the postmark date falls within the prescribed period or on or before the prescribed date—
(i) for the filing (including any extension granted for such filing) of the ... claim ... ******
(B) [and] the ... claim ... was within the time prescribed in subparagraph (A) deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the agency ... with which the ... claim ... is required to be filed....
(b) Postmarks. — This section shall apply in the case of postmarks not made- by the United States Postal Service only if and to the extent provided by the regulations prescribed by the Secretary.
(emphasis added).
. Treas.Reg. § 301.7502-1 provides in relevant parts as follows:
§ 301.7502-1 Timely mailing treated as timely filing.
******
(c) Mailing requirements. (1) Section 7502 is not applicable unless the document is mailed in accordance with the following requirements:
(i) The document must be contained in an envelope or other appropriate wrapper, properly addressed to the agency ... with which the document is required to be filed.
(ii) The document must be deposited within the prescribed time in the mail in the United States with sufficient postage prepaid. For this purpose, a document is deposited in the mail in the United States when it is deposited with the domestic mail service of the U.S. Post Office. The domestic mail service of the U.S. Post Office, as defined by the postal regulations, includes mail transmitted within, among, and between the United States, its Territories and possessions, and Army-Air Force (APO) and Navy (FPO) post offices (see 39 CFR 2.1)....
(iii)(a) ...
(b) If the postmark on the envelope or wrapper is made other than by the U.S. Post Office, (1) the postmark so made must bear a date on or before the last date, or the last day of the period, prescribed for filing the document, and (2) the document must be received by the agency ... with which it is required to be filed not later than the time when a document contained in an envelope or other appropriate wrapper which is properly addressed and mailed and sent by the same class of mail would ordinarily be received if it were postmarked at the same point of origin by the U.S. Post Office on the last date, or the last day of the period, prescribed for filing the document. However, in case the document is received after the time when a document so mailed and so postmarked by the U.S. Post Office would ordinarily be received, such document will be treated as having been received at the time when a document so mailed and so postmarked would ordinarily be received, if the person who is required to file the document establishes (i) that it was actually deposited in the mail before the last collection of the mail from the place of deposit which was postmarked (except for the metered mail) by the U.S. Post Office on or before the last date, or the last day of the period, prescribed for filing the document, (ii) that the delay in receiving the document was due to a delay in the transmission of the mail, and (iii) the cause of such delay....
(emphasis added).
. In any event, under any reading of the regulations, it is incumbent upon the taxpayer to prove by a preponderance of the evidence, as a condition precedent to the application of the "timely mailed-timely filed” rule, that it, in fact, deposited the article in the United States mail. 26 U.S.C. § 7502(a)(2)(A) and (B).
. However, in conjunction with the foregoing, if the mail is received after the time when a document mailed and postmarked by the United States Post Office would ordinarily have been received, the person so relying on said private postmark must establish: (a) that the document was actually deposited in the mail before the last collection of the mail on the last day for filing the item; (b) that the delay in receiving the document was due to a delay in the transmission of the mail; and finally (c) the cause of such delay. Treas.Reg. § 7502-l(c)(iii)(b).
. Also, Mohs testified that the Treasurer reviewed all documents before signing them, and that he (the Treasurer) would return documents unsigned for corrections if an error was found on the signature page, or if the form was undated. Tr. 276. However, this assertion is contradicted by the facts because plaintiff admitted the instant refund claim did contain a significant error on the signature page. As previously stated, supra, note 5, approximately $49,000 of the amount representing distributors’ requests for refund were untimely submitted to Raymark Industries. See note 5, supra. Therefore, if the Treasurer had reviewed the "signature page” for errors (whereon the inaccurate amount was located), it is conceivable that he would have uncovered the error {i.e., the inaccuracy in the amount of refund requested), and directed Mohs to correct same. Such action did not occur. The inference is that Mohs’ testimony that the Treasurer never signed an undated claim might, likewise, be unreliable.
. The foregoing testimony proffered by plaintiff unquestionably did not establish that any witness personally placed the claim in the mail on September 30, 1983. In fact, what the testimony did establish is that Mohs’ secretary "may have," at some unascertainable point, placed the refund claim either in her tray to be picked up by one of the mail clerks, or that she deposited such in the mailroom for postage. However, her testimony was not offered in that she was not called as a witness. And, surprisingly, plaintiff did not explain its failure to call Mr. Mohs’ secretary. Moreover, plaintiff admits that it did little, if anything, to secure such testimony. Tr. 377-380.
The absence of this testimony cannot and should not be ignored. See Borror v. Herz, 666 F.2d 569, 573 (C.C.P.A.1981). Basic evidentiary principles provide that an "unexplained failure to call any known non-hostile person who has direct knowledge of facts being developed by the party raises the inference that the testimony would be unfavorable, or at least would not support the case.” Borror, 666 F.2d at 573-74, citing to, 2 Wigmore, Evidence, §§ 285, 286. The inference we draw from plaintiff s failure to procure such testimony is that the secretary’s testimony would not have supported plaintiffs case.
. Because plaintiff failed to meet its initial burden, the court will not elaborate on the specific rebuttal testimony offered by the defendant. However, we note that such was compel*344ling, particularly that which established that Mohs admitted that "he may have filed the claim on October 1, 1983." Tr. 123, 157.
To the extent that plaintiff attempted (by insinuation and innuendo) to discredit the testimony of one government witness with regard to Mohs' statement, we conclude that the evidence presented did not constitute "irrefragable proof’ sufficient to overcome "the presumption that [this] government employee ... acted conscientiously in the performance of [his] duties.” See Space Age Engineering, Inc. v. United States, 4 Cl.Ct. 739, 744 (1984), citing Torncello v. United States, 231 Ct.Cl. 20, 45, 681 F.2d 756, 770 (1982), and Kavlar Corp., Inc. v. United States, 211 Ct.Cl. 192, 198, 543 F.2d 1298, 1301-02 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977).
. 'The Business Mailer’s Review” is a bimonthly publication that reports upon "Postal Service activities that affect [its] readers.” Tr. 61.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902126/
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was placed on keeplock status pending an investigation into a writing he transmitted to a professor working in the facility. At the conclusion of the investigation, petitioner was charged in a misbehavior report with violating prison disciplinary rules concerning facility correspondence procedures, harassment of employees and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of violating facility correspondence procedures and harassment of an employee. Upon administrative appeal, respondent modified the determination by reducing the penalty *1042imposed and otherwise affirmed. Petitioner then commenced this CPLR article 78 proceeding.
The misbehavior report, the testimony of the authoring correction officer and petitioner’s admissions that he composed the writings in question and transmitted them to the professor provide substantial evidence supporting the determination of guilt (see Matter of Messiah v New York State Dept. of Correctional Servs., 52 AD3d 1133, 1133 [2008]; Matter of Greci v Selsky, 8 AD3d 725, 725 [2004]). Petitioner’s testimony that he inadvertently sent one of the writings to the professor presented a credibility issue for the Hearing Officer to resolve (see Matter of Burgess v Goord, 294 AD2d 746, 746 [2002]). We also disagree with petitioner’s contention that he was improperly placed on keeplock status during the investigation period. Petitioner’s confinement was based upon a concern for the safety and security of the professor and her husband, who also worked in the facility (see Matter of Pettus v West, 28 AD3d 907, 908 [2006]). Petitioner’s remaining contentions are either unpreserved or have been considered and found to be without merit.
Mercure, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/1737028/
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535 F. Supp. 1353 (1982)
Vivien BONIUK, Plaintiff,
v.
NEW YORK MEDICAL COLLEGE, Michael Dunn, Al Lowenfels, Tom Cottrell, Donald Gromisch, Edward Wasserman, Samuel Rubin and John Keane, Defendants.
No. 80 Civ. 6011 (ADS).
United States District Court, S. D. New York.
April 12, 1982.
*1354 Alan E. Bandler, P. C., New York City, for plaintiff.
Kelley, Drye & Warren, New York City, for defendants; John F. Gibbons, Alan C. Becker and Sarah L. Reid, New York City, of counsel.
*1355 MEMORANDUM OPINION AND ORDER
SOFAER, District Judge.
This case is a concrete instance of the misguided use to which parties and attorneys have occasionally put diversity jurisdiction. The plaintiff has filed a complaint alleging numerous grounds for relief. All but one are now conceded to be meritless. The sole claim advanced in opposition to defendants' motion to dismiss is that of an allegedly abusive discharge. New York law is applicable, and no established precedent in New York state courts recognizes the tort of abusive discharge. Some lower court decisions suggest that a trend exists that might lead to the recognition of such a tort in New York. But at present, the established law of New York is that an individual employed without express contractual guarantees of job security may be terminated for no reason or for any reason not specifically proscribed by constitutional or statutory law.
The Court invited plaintiff to withdraw this suit, and to file it in state court, noting that there are limits to a federal court's authority to devise changes in the established law of a state. Plaintiff declined to do so. Consequently, the case must be dismissed because it fails to state a cause of action under established New York law.
Plaintiff has sued the New York Medical College and several individuals in connection with her termination from several job assignments as an ophthalmologist. She claims that defendants terminated her work assignments because she had given an interview to the New York Times, which resulted in an article suggesting that some student openings in the medical school were being sold for contributions amounting to as much as $100,000 each. The complaint asserted five claims: (1) breach of an implied understanding that plaintiff's employment would not be terminated without good cause; (2) breach of an implicit covenant of good faith and fair dealing that her employment would not be terminated without good cause; (3) violation of her constitutional right to speak to the press regarding defendant's admissions policies; (4) malicious termination of plaintiff's employment, with intent to injure and without economic justification, and in contravention of her reasonable expectancy not to be terminated except for good cause; and (5) wanton and willful infliction of injury to plaintiff. Plaintiff asked $500,000 on each of the first four claims, and $1,000,000 on the fifth.
Plaintiff has not claimed to be a tenured employee, or one with any contract of employment. In fact, she has relinquished her claims based on any form of employment contract, written or oral, express or implied. She has also relinquished her claim for willful and wanton infliction of harm. The only claim she still asserts is her claim for abusive discharge. In plaintiff's responding papers to the motion, the abusive discharge claim is the only one addressed, and at oral argument plaintiff's counsel stated that he would have voluntarily discontinued the other claims had he been asked to do so.
The tort of abusive discharge has been tentatively recognized by some lower courts in New York. E.g., Murphy v. American Home Products Corp., Sup., 447 N.Y.S.2d 218 (1982); Balancio v. American Optical Corp., Index No. 13229/80 (Sup.Ct. Westchester Co., Marbach, J., May 21, 1981) (cited in Murphy, supra); Chin v. American Telephone & Telegraph Co., 96 Misc. 2d 1070, 410 N.Y.S.2d 737, (Sup.Ct. New York Co. 1978), aff'd., 70 A.D.2d 791, 416 N.Y. S.2d 160, appeal dismissed, 48 N.Y.2d 603, 421 N.Y.S.2d 1028, 396 N.E.2d 207 (1979). In Chin the trial court stated its belief that the state might, in the proper circumstances, recognize a cause of action for an employee discharged in violation of a clear public policy. Because a public policy was not clearly violated, however, plaintiff's claim was dismissed. Murphy recognized that the tort had not been established in New York, but upheld a claim of abusive discharge against a motion to dismiss because "[t]his case may or may not prove to be the turning point." The arguments for recognizing such a tort have been stated forcefully in a bar association report, At Will Employment and the Problem of Unjust Dismissal, Report of the Committee on *1356 Labor and Employment Law, 36 Record of the Association of the Bar of the City of New York 170 (1981) ("Bar Association Report"), and in many articles, e.g., Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816 (1980) ("Protecting At Will Employees"): DeGiuseppe, The Effect of the Employment-At-Will Rule on Employee Rights to Job Security and Fringe Benefits, 10 Fordham Urban L.J. 1 (1981): Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va.L.Rev. 481 (1976); Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L.Rev. 1404 (1967). Moreover, in the past decade, many states have done what the recent New York trial court decisions suggest, modifying the at-will employment rule to provide varying measures of job security for individuals employed without contractual protection. See Bar Association Report, supra, 36 Record at 181-87, 207-14, nn. 109-167, especially note 130; Protecting At Will Employees, supra, 93 Harv.L.Rev. at 1818-24 & nn. 9-47.
The New York cases make clear, however, that to recognize the tort of abusive discharge would require important changes in the law of New York. Since 1895, Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416, 417 (1895), and as recently as 1959, Parker v. Borock, 5 N.Y.2d 156, 182 N.Y.S.2d 577, 156 N.E.2d 297 (1959) (dicta), and 1975, James v. Board of Education, 37 N.Y.2d 891, 378 N.Y.S.2d 371, 340 N.E.2d 735 (1975), the New York Court of Appeals has held it to be the law of the state that hirings for an unspecified or indefinite period are freely terminable at the will of either party. Against the handful of recent trial court decisions suggesting that the doctrine should and will be changed, several recent Appellate Division cases, as well as the comparatively recent Court of Appeals decisions cited above, reaffirm the at-will rule. E.g., Edwards v. Citibank, 74 A.D.2d 553, 425 N.Y.S.2d 327 (1st Dept.), appeal dismissed, 51 N.Y.2d 875, 433 N.Y.S.2d 1020, 414 N.E.2d 400 (1980); Chase v. United Hospital, 60 A.D.2d 558, 559, 400 N.Y.S.2d 343, 344 (1st Dept.1977); Vassallo v. Texaco, Inc., 73 A.D.2d 642, 422 N.Y.S.2d 747 (2d Dept.1979); Cartwright v. Golub Corp., 51 A.D.2d 407, 381 N.Y.S.2d 901 (3d Dept. 1976); Grozek v. Ragu Foods, Inc., 63 A.D.2d 858, 406 N.Y.S.2d 213 (4th Dept. 1978). Thus, despite some recent federal court statements that New York has or will recognize the doctrine of abusive discharge, see Placos v. Cosmair, Inc., 517 F. Supp. 1287, 1289 (S.D.N.Y.1981)[1]; Savodnik v. Korvettes, Inc., 488 F. Supp. 822, 824-27 (E.D.N.Y.1980); but see Shaitelman v. Phoenix Mutual Life Ins. Co., 517 F. Supp. 21, 24 (S.D.N.Y.1980); Pirre v. Printing Developments, Inc., 432 F. Supp. 840, 841 (S.D. N.Y.1977), the current law of New York is perhaps best summarized in the recent decision of Justice Shainswit:
The day may be inevitable when the doctrine of abusive discharge will be a fixed principle in the substantive law of New York. But that day has not yet come....
Murphy v. American Home Products Corp., supra.
A federal district court in diversity acts as a court of the state in which it sits. As such, it is required to apply the established law of the state. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938). Where the state's law is unclear, or has been called into question by a substantial body of state authority, the federal court must do its best to reach the result that would have been reached if the case had been brought in state court. Gordon v. Motel City "B" Associates, 403 F.2d 90 (2d Cir. 1968); Cooper v. American Airlines, 149 F.2d 355, 359 (2d Cir. 1945); Bernhardt v. Polygraphic Co., 350 U.S. 198, 208-12, *1357 76 S. Ct. 273, 279-281, 100 L. Ed. 199 (1956) (Frankfurter, J., concurring). But where the state law is established, a federal court may not disregard it merely because some lower courts and commentators are calling for change. For several sound reasons a district court does not share the freedom of a state trial court to depart from a clear legal rule in the belief that it might or should be changed.
The historical basis for diversity-of-citizenship jurisdiction is to ensure a fair forum to noncitizens of the state in which the federal court sits. Congress has seen fit to extend jurisdiction beyond the need for a fair forum, so one could argue that the federal courts sit as a frequently available alternative to the state courts in order to derive the benefits of competing court systems. No rational view of the purposes of diversity supports the notion, however, that a district court should disregard established state law because of a perceived trend not yet manifested even in the state's appellate courts. Revision of established law causes inconsistent results between such cases and the majority of those decided by state judges, a consequence that undermines the historic purpose of the diversity jurisdiction. Nor is it part of a legitimate scheme of competing court systems for the federal courts to offer litigants a greater willingness than state judges to change the established doctrine that they are supposed to apply. A federal court's "assigned role is to predict and not to form state law." Keystone Aeronautics Corp. v. R. J. Enstrom Corp., 499 F.2d 146, 147 (3d Cir. 1974). Prediction must be based on state case law in the area or in related fields, not on a federal judge's view of what state law should be. As a practical matter, federal judges have great freedom to revise state law, because of the cost and difficulty of appeals within the federal system, and because of the absence of any review by the state's highest court in all but the few states that have authorized references of unsettled questions. But this very freedom is the most powerful argument for restraint. A litigant seeking to revise state law should be encouraged to do so in the state courts, where authoritative review is available.
The notion that federal courts should engage in revising state common law seems based on the view that somehow such activism is necessary because state judges are less willing to innovate. Federal courts should not lend credence to this baseless view. State judges are no less clever, imaginative, or daring than federal judges, as the New York judiciary has amply demonstrated over several generations. In fact, on the very issue presented in this case, state court judges in the cases discussed above have delivered the opinions that have lent credence to the possibility that some revision of the state's law may be forthcoming. The leading decisions in other states as well are state-court decisions. See, e.g., Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974); Petermann v. Teamsters Local 396, 174 Cal. App. 2d 184, 344 P.2d 25 (1959). In short, there simply is nothing to the suggestion that a federal revisionary role is necessary, even if it were appropriate.
Finally, the federal courts must consider their other responsibilities in evaluating their proper role under diversity jurisdiction. While diversity cases are frequently interesting, often involving common law subjects, Congress through federal legislation has assigned vast responsibilities to the federal courts that only the federal courts can perform. The number of filings of cases arising under federal laws has steadily increased, demanding more and more time to process and decide. Federal courts should not reach out for additional, unnecessary roles, that will decrease their capacity to perform their undeniable responsibilities. See Speech by Chief Judge Wilfred Feinberg (December 10, 1981); Speech by Chief Justice Warren Burger (December 22, 1981).
It is true, of course, that despite these considerations a federal court sitting in diversity must not consider itself bound by old state court decisions if it "is convinced by other persuasive data that the *1358 highest court of the state would [now] decide otherwise." See West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S. Ct. 179, 183, 85 L. Ed. 139 (1940); 1A J. Moore, Federal Practice ¶ 0.309[1] at 3115 & cases cited n. 10 (1980); Calvert v. Katy Taxi, Inc., 413 F.2d 841, 846 (2d Cir. 1969); Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d Cir. 1944) (L. Hand, J., dissenting). The availability of "forum shopping" can be a two-edged sword. If federal courts were inexorably bound to outdated precedents that the state's highest court would clearly disregard, by obtaining a federal forum litigants either plaintiffs or defendants exercising their statutory right to remove a case to federal court could defeat the natural progress of the common law and their adversaries' right to argue for needed changes. See IA J. Moore, Federal Practice, supra at ¶ 0.309[1]. See generally, P. Bator, P. Mishkin, D. Shapiro, H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 708-10 (1973). But here the data suggesting that change in the established law may be imminent is unconvincing. Although the "at will" rule was adopted by New York in the heyday of now repudiated formalistic contract theories, see Protecting At Will Employees, supra, 93 Harv.L.Rev. at 1824-28, the Court of Appeals has reaffirmed it at least twice in recent years. While the reaffirmance was in dicta in one case, Parker v. Borock, supra, 5 N.Y.2d 156, 182 N.Y.S.2d 577, 156 N.E.2d 297, and is perhaps distinguishable in the other, James v. Board of Education, supra, 37 N.Y.2d 891, 378 N.Y.S.2d 371, 340 N.E.2d 735, see Savodnik v. Korvettes, Inc., supra, 488 F.Supp. at 827, the fact is that as recently as 1975 the Court of Appeals had the opportunity to reject or modify the "at will" doctrine and did not do so. Further, intermediate state courts have thus far consistently adhered to it. Consequently, this Court cannot say with any more certainty than could Justice Shainswit, see Murphy v. American Home Products Corp., supra, that the Court of Appeals would alter the rule in this case.[2] A state trial court, whose judgment is subject to review by the highest state court, is freer than this Court properly to initiate a change in state doctrine.
These considerations led the Court to suggest to plaintiff's counsel that he withdraw the complaint and file it in state court. Counsel requested and received three weeks to consider whether to accept dismissal or withdraw the complaint. Nevertheless, counsel chose to have the case proceed in federal court. Therefore, under the established and controlling law of New York, defendants' motion to dismiss the claim of abusive discharge is granted, with costs, but without attorneys' fees. Fed.R.Civ.Proc. 12(b)(6).
SO ORDERED.
NOTES
[1] This Court, addressing but one of several claims that survived a motion to dismiss in Placos, stated that the tort of abusive discharge is cognizable in New York. As the present opinion reflects, however, only some lower courts have recognized the tort and they have done so tentatively and in the face of contrary rulings by higher tribunals. In these circumstances recognition of the tort by a federal court is not justified.
[2] The discussion in text should not be read to suggest that plaintiff has a claim of abusive discharge that would satisfy even a reformist state court. Defendants' motion for summary judgment is frivolous insofar as it is based on the claim that no genuine factual dispute exists. Plaintiff has offered the affidavit of Dr. Miles Galin to the effect that the defendant Dr. Michael Dunn told him that Dunn intended to get rid of plaintiff because of the newspaper story. Assuming, however, the truth of plaintiff's factual claims, she nevertheless asserts a weak case for a finding of abusive discharge in that (1) an investigation by state authorities failed to establish that defendants in fact engaged in the activity she alleges i.e. selling unqualified applicants positions in the medical school; (2) plaintiff has failed to establish that the activity allegedly engaged in is either illegal or against any established public policy; and (3) plaintiff made very little if any effort to investigate the alleged activity and to secure change within the hospital, before going public with her suspicions. Compare Chin v. American Telephone & Telegraph Co., supra; Fletcher v. Greiner, 106 Misc. 2d 564, 573, 435 N.Y. S.2d 1005, 1011 (1980). (Sup.Ct.Sp.T. Nassau Co. 1980). See generally Protecting the Private Sector At Will Employee Who "Blows the Whistle": A Cause of Action Based upon Determinants of Public Policy, 1977 Wisc.L.Rev. 777, 808 and cases cited n. 215 (discussing possible limits on cause of action).
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OPINION OF THE COURT
Ross, J.
This appeal presents us with an issue of whether, when an accused is removed, pursuant to a court order, from his place of incarceration to a station house to appear in a lineup concerning a specific case, the right to counsel continues to attach, if thereafter, upon the basis of the same court order, he is exhibited in another lineup concerning an unrelated case, in which he has not as yet been charged. We are informed that this is an appellate issue of first impression.
On July 22, 1983, at approximately 9:30 p.m., Ms. Carmen Lopez (Ms. Lopez), Ms. Rita Rodriguez (Ms. Rodriguez), Ms. Constanza Figueroa (Ms. Figueroa), who was Ms. Rodriguez’ aunt, and four small children, who were related to Ms. Rodriguez and Ms. Figueroa, all entered an elevator of an apartment building, located at 700 West 176th Street, in New York County.
As the elevator doors were closing, a young male (perpetrator), who was armed with a gun, stuck his foot inside, and held the doors open. Thereafter, this perpetrator pointed his gun at the three women, demanded their money, and informed them, if they refused to comply, he would kill the children. In response, Ms. Lopez opened her purse to indicate she had no money, and Ms. Figueroa placed her wallet into a small bag, which the perpetrator was holding. While Ms. Rodriguez tried to give her money to the perpetrator, who was standing approximately three feet away, he leveled the gun at Ms. Figueroa, and, at point blank range, shot her in the stomach.
*194After shooting Ms. Figueroa, the perpetrator sought to leave the building. At that time, Mr. Antonio Germosen (Mr. Germosen) was entering the building. Mr. Germosen testified that, since fluorescent lights illuminated the interior of the building, he saw the face of the perpetrator, who was running towards him. Furthermore, Mr. Germosen testified that, as the perpetrator passed him, the perpetrator looked straight at him. Shortly thereafter, Mr. Germosen became aware that Ms. Figueroa had been shot in the robbery, and, when Mr. Germosen tried to pursue the perpetrator, he shot at and missed Mr. Germosen.
In the street, Ms. Carmen and Ms. Haidee Martinez, who are sisters, heard the gunfire. While Ms. Carmen Martinez was sitting on the hood of a car in front of the building, Ms. Haidee Martinez was halfway down the block, returning to the subject building, after using a public telephone.
Ms. Carmen Martinez testified the street was bright with light, which came from a street lamp and the building.
Moments after hearing the sound of gunfire, Ms. Carmen Martinez testified she saw the profile of the perpetrator, as he ran from the building towards Broadway, followed by Mr. Germosen, and Ms. Figueroa, who was exclaiming that she had been mugged and was hurt. As soon as she heard Ms. Figueroa’s statement, Ms. Carmen Martinez testified she shouted to Ms. Haidee Martinez that the perpetrator had mugged and shot Ms. Figueroa, and to call the police.
Ms. Haidee Martinez testified, in pertinent part, that, as the perpetrator proceeded towards Broadway, he ran past her, and she saw his whole face, from a distance of about three feet.
When the perpetrator reached Broadway, he turned the corner, and fled downtown.
As a result of her wound, Ms. Figueroa died the following day, July 23, 1983, in Columbia Presbyterian Hospital.
New York City Police Officer John McCormick (Officer McCormick), a 13-year veteran of the force, on July 23, 1983, was assigned to investigate the robbery and murder of Ms. Figueroa.
Between that date and August 30, 1983, when a station house lineup involving the defendant took place, Officer McCormick attempted to identify the perpetrator of the crime, who witnesses had described as being a black male in his 20’s, 5-foot, 7-inches tall, weighing 140 pounds, with very short *195hair, dressed entirely in black, including a black windbreaker, and wearing silver sunglasses.
Thereafter, on July 25, 1983, a police artist prepared a composite sketch, which the witnesses agreed resembled the perpetrator. However, none of the witnesses were able to identify the defendant from the photographs, which they viewed at the Police Artist’s Modus Operand! Unit, or which they viewed at the 30th and 34th Police Precincts, or which they viewed at the Catch Unit, located at the 20th Police Precinct.
Subsequently, Officer McCormick spoke with New York City Police Detective Lehan (Detective Lehan), of the robbery team task force, and Detective Lehan indicated he had a suspect, who was involved in a similar robbery/homicide case. After viewing the composite sketch of the perpetrator in the Ms. Figueroa homicide, Detective Lehan informed Officer McCormick that it looked like the defendant.
Based upon Detective Lehan’s possible identification, Officer McCormick prepared a photograph array folder of six individuals, including defendant, which he exhibited to witnesses. On July 27, 1983, witnesses Ms. Lopez and Mr. Germosen viewed the array separately, and, although they tentatively identified defendant as the perpetrator, they were unable to positively identify him. Since Officer McCormick had not obtained a positive identification, he decided it was not appropriate to either arrest or place defendant in a lineup at that time.
Subsequently, Officer McCormick testified that, on or about August 3, 1983, he learned defendant was incarcerated, represented by counsel, and, that Detective Lehan intended to have defendant brought, on August 30, 1983, from Rikers Island, pursuant to court order, to the 34th Police Precinct, for the purpose of being viewed in a lineup concerning an unrelated case. As soon as Officer McCormick heard about the August 30th lineup, he testified "he [Officer McCormick] said, *[w]ell, I will also have my witnesses * * * view that line up’ ”.
On August 30, 1983, the witnesses in the unrelated case viewed the defendant in the lineup arranged by Detective Lehan. The defendant had been brought to that lineup by court order.
When defendant became aware that he was going to be retained at the station house in order to be viewed by a different set of witnesses concerning Officer McCormick’s homicide case, defendant requested of Officer McCormick that *196his lawyer be notified to be present, but Officer McCormick took no action to satisfy defendant’s request.
Over the course of approximately the next 12 hours, Officer McCormick, without obtaining another court order, conducted two lineups for five witnesses in the Ms. Figueroa homicide. These witnesses were Mr. Germosen, Ms. Lopez, Ms. Carmen Martinez, Ms. Haidee Martinez and Ms. Rodriguez.
Different stand-ins were used in each of Officer McCormick’s lineups.
As a result of those lineups only Ms. Haidee Martinez and Ms. Rodriguez unequivocally selected the defendant as the perpetrator of the crimes that led to Ms. Figueroa’s death.
Following the lineup identifications, by indictment, filed September 8, 1983, a New York County Grand Jury charged defendant with the crimes of two counts of murder in the second degree (Penal Law § 125.25), attempted murder in the second degree (Penal Law §§ 110.00, 125.25), robbery in the first degree as an armed felony (Penal Law § 160.15), robbery in the first degree (Penal Law § 160.15), and two counts of attempted robbery in the first degree as an armed felony (Penal Law §§ 110.00, 160.15).
Prior to trial, defendant moved to, inter alia, suppress the lineup identifications, upon the ground, inter alia, that he was denied counsel at the two lineups conducted by Officer McCormick. Thereafter, a Wade (United States v Wade, 388 US 218 [1967]) hearing was held, at which both the People and defendant presented witnesses. The hearing court held, in substance, that the defendant’s right to counsel had not been violated, and that only witnesses Ms. Haidee Martinez and Ms. Rodriguez, who had positively identified defendant at the lineup, would be permitted to make an in-court identification of the defendant.
Defendant’s jury trial commenced on January 23, 1984. Our examination of the trial transcript indicates that the key issue at trial was whether defendant was the perpetrator of the crime. In support of defendant’s position that he was not the perpetrator, he presented an alibi defense. The jury found defendant guilty of two counts of murder in the second degree, attempted murder in the second degree, robbery in the first degree, and two counts of attempted robbery in the first degree.
On appeal the defendant contends that the hearing court erred when it held that his right to counsel did not attach to *197the lineups conducted by Officer McCormick in connection with the investigation of the slaying of Ms. Figueroa. We find merit in this contention, based upon our analysis infra.
The Court of Appeals in People v Blake (35 NY2d 331, 335 [1974]) stated "Prior to United States v. Wade (388 U.S. 218), Gilbert v. California (388 U.S. 263), and Stovall v. Denno (388 U.S. 293), counsel were not required at pretrial corporeal viewings of a defendant by identification witnesses. Such viewings were considered merely stages of police investigation * * * In the Wade and Gilbert cases (supra), however, the Supreme Court, recognizing the dangers of misidentification and improper suggestion in such viewings, mandated the presence of counsel for the accused at postindictment identifications”.
Subsequent to its decisions in United States v Wade (supra) and Gilbert v California (supra), the United States Supreme Court in Kirby v Illinois (406 US 682, 689 [1972]) held that the rule enunciated in Wade-Gilbert applies to identifications occurring "at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment”. The Kirby case involved a station house identification of an accused, which took place shortly after his warrantless arrest, and before he had been formally charged in any manner.
In substance, the court in Kirby v Illinois (supra) redefined the Wade-Gilbert rule, so that a defendant’s right to have counsel present at a lineup attached at a point before indictment. This conclusion is based upon the fact that, in defining the words "at or after the initiation of adversary judicial criminal proceedings” (Kirby v Illinois, supra, at 689), the Kirby court used examples such as "formal charge, preliminary hearing * * * or arraignment” (Kirby v Illinois, supra, at 689), which are stages of the criminal process that can occur prior to indictment.
After the Kirby decision (supra), the Court of Appeals in People v Blake (supra, at 339-340) interpreted the words "the initiation of adversary judicial criminal proceedings”, quoted supra, which appear in Kirby v Illinois (supra, at 689), to mean: "For purposes of applying the Federal rule as now restated in the Kirby case * * * in this State a criminal action begins with the filing of an 'accusatory instrument’ as defined by statute, which serves as the basis for prompt arraignment or issuance of a warrant of arrest * * * It is at this point that *198'adversary judicial criminal proceedings’, within the meaning of the Kirby case, are initiated. Consequently, upon the filing of an accusatory instrument, whether or not a lawyer has been retained or assigned for general purposes, there may not be, except in exigent circumstances, a corporeal viewing of the defendant for identification purposes in the absence of counsel”.
Thereafter, the Court of Appeals in People v Coleman (43 NY2d 222 [1977]), which was a case concerning a court order of removal of an accused, from his place of incarceration, on a specific charge, to a station house, to appear in a lineup in an unrelated case, had occasion to comment upon the effect of a court order of removal, on the concept of "the initiation of adversary judicial criminal proceedings” (Kirby v Illinois, supra, at 689), and the attachment of the right of counsel. In pertinent part, the court stated (People v Coleman, supra, at 225): "Although in [People v Blake, 35 NY2d 331] the commencement of adversary judicial proceedings was equated with the filing of an accusatory instrument, it has been recognized that the filing of an instrument [such as a court order of removal] other than one forming the basis of an arraignment or issuance of an arrest warrant, may nevertheless constitute a 'formal’ proceeding triggering an accused’s right to counsel. In People v Sugden (35 NY2d 453, 461), we held that a court order directing the removal of a defendant serving a sentence on an unrelated charge requiring him to visit the scene of a crime he was alleged to have committed, was 'sufficiently "judicial” in nature, not unlike arraignment or the issuance of an arrest warrant, so that a right to counsel exists at "critical stages” held after [the court order of removal] is issued’ ”.
Although the People acknowledge that, in view of the decision in People v Coleman (supra) defendant "had a right to counsel on Detective Lehan’s lineup, as it was conducted pursuant to court order”, they nevertheless contend defendant lost that right to counsel, when Officer McCormick, based upon that same court order, conducted his investigatory lineups in the Ms. Figueroa homicide investigation.
Our examination of the record clearly indicates that the court order of removal obtained by Detective Lehan was the only legal instrument, upon which defendant could be involuntarily retained in the station house, after Detective Lehan completed his lineup, and the People do not argue to the contrary. For example, the People admit that "Officer McCor*199mick specifically explained at the Wade hearing that he was not far enough along in his investigation of the Figueroa homicide to have sought a court order for a lineup in that case”.
Even though People v Coleman (supra, at 225-227) states that a defendant can waive the right of counsel to be present at a lineup held pursuant to a court order of removal, the People do not contend that defendant, in the instant case, waived his right to counsel to be present at Officer McCormick’s lineups. On the contrary, the defendant demanded counsel to be present at those lineups.
The People offer no appellate legal authority in this State which holds that, if a defendant, who is incarcerated, is subsequently taken from his place of incarceration to a station house for a lineup, pursuant to a court order of removal, and is thereafter retained at the station house, based upon the same court order of removal, for the purpose of being viewed in an investigatory lineup concerning an unrelated case, he loses the right to counsel, which previously had attached to the subject court order.
When Detective Lehan completed conducting his lineup, and Officer McCormick took over to conduct his lineups, the court order of removal, which had been obtained by Detective Lehan, we find was the only filed legal instrument that retained defendant in the station house for the subsequent lineups conducted by Officer McCormick. Moreover, our review of the record does not indicate that defendant remained in the station house voluntarily for Officer McCormick’s lineups, and the People do not contend that he did.
In view of the fact that the court order of removal kept defendant in the station house, and Officer McCormick took advantage of that order for the purpose of placing defendant in two lineups, we find that order did not lose its legal effect because Officer McCormick had not originally obtained same. As mentioned supra, the court in People v Coleman (supra, at 225) unequivocally stated that a court order of removal is a filed legal instrument, which is " 'sufficiently "judicial” in nature * * * that a right to counsel exists at "critical stages” [such as at a lineup] held after [the court order of removal] is issued’ ”. In other words, we find the same right to counsel that defendant had as to Detective Lehan’s lineup, also applied to the lineups conducted by Officer McCormick. Since defendant was entitled to counsel at the two Officer McCor*200mick lineups, we find the hearing court erred, when it denied defendant’s motion to suppress the lineup identifications.
The error involved herein is one of "constitutional magnitude” (People v Smith, 120 AD2d 118, 120 [1986]), since the Federal and State Constitutions guarantee an accused the right to counsel to aid in his defense (US Const 6th, 14th Amends; NY Const, art I, § 6). Therefore, this error cannot be deemed harmless "unless it can be said beyond a reasonable doubt that the error did not contribute to the conviction” (People v Lloyd Winston G., 45 NY2d 962, 964 [1978]). In view of the fact that defendant’s conviction depended upon his identification at trial, "the improperly admitted evidence of the pretrial lineup identification cannot be considered harmless error” (People v Smith, supra, at 120).
Another contention of the defendant, is that prosecutorial misconduct denied defendant a fair trial. We also find merit to that contention, since "the cumulative effect of [the prosecutorial] errors denied [defendant] a fair trial” (People v Dowdell, 88 AD2d 239, 240 [1st Dept 1982]).
Our examination of the record indicates the prejudicial errors of the prosecutor continued throughout the entire trial. These errors were so numerous that only some of the more flagrant are set out in detail, infra.
For example, the hearing court, as mentioned supra, held that only Ms. Haidee Martinez and Ms. Rodriguez, who had positively identified defendant at a lineup, would be permitted to make in-court identifications of the defendant. Nevertheless, during the trial, the prosecutor frequently stated to the jury that 4 witnesses instead of only 2 had identified defendant, and, on at least two occasions, the prosecutor even asserted to the jury that defendant had been identified by witnesses Mr. Germosen and Ms. Lopez, even though these witnesses had not been able to positively identify the defendant at a lineup. Although the trial court admonished the prosecutor concerning these errors, the prosecutor ignored the admonishments. In fact, the following side-Bar conference between the trial court and counsel clearly indicates how serious this problem had become during the trial:
"the court: Do you have an application, Mr. Gotlin [defense counsel]?
"mr. gotlin: Yes, your Honor. I have moved for a mistrial during the District Attorney’s summation based on his constantly referring that Miss Lopez and particularly, Mr. Germosen had made identification of the defendant * * *
*201"Your Honor admonished him on more than one occasion. Yet he continually did that.
"the court: The Assistant District Attorney seems to have no particular interest in what I rule or what I say, nor in the value of a Wade Hearing, which we went through, to begin with, to make a determination that there would be no in-court identification.
"assistant district attorney: Your Honor, everything that I said, in my opinion, is supported—
"the court: Well, the record will show. However, at this time, I will deny the application for a mistrial, not because I don’t think that you [Mr. Gotlin] may be right, and I don’t believe there’s very little that I can say to the Jury, although I tried, that would wipe out of their mind, some of the things that Mr. [Assistant District Attorney] said at his summation.
"But at this point, since it is summation, I’m going to allow this to go to the Jury.
"And if I was not able to correct it, the Appellate Division will take care of it. ” (Emphasis supplied.)
Additionally, we find that the prosecutor’s habit of repeating answers of witnesses in succeeding questions constituted error. The following exchange between the trial court and the prosecutor indicates that, when the trial court attempted to point out to the prosecutor that this practice constituted error, and that he should stop it, the prosecutor arrogantly rejected the offered correction:
"the court: I’m telling you now, Mr. [Assistant District Attorney], the next time you repeat an answer of a witness for emphasis, I’ll declare a mistrial. Is that clear? Is that clear?
"assistant district attorney: Your Honor, this is cross-examination, no?
"the court: I don’t care what it is.
"assistant district attorney” Your Honor, you’ll do what you have to do. Okay?
"the court: Cross-examination—
"assistant district attorney: If he has an objection, you do what you have to do.
"the court: Cross-examination consists of the questions, not repeating the answers.
"assistant district attorney: You’ll do what you have to do, Judge.
"the court: Now, step up. Off the record.
*202"assistant district attorney: Your Honor, I don’t care to go off the record any more.”
In People v Rosa (108 AD2d 531, 539 [1st Dept 1985], order amended 113 AD2d 722 [1st Dept 1985]) we unanimously stated: "Certainly, we are not required, at this late date, to set forth the duties of counsel during trial. Although we do not expect that every trial will be totally free of any error, we cannot and will not permit a conviction in a criminal trial to stand, where continuing misconduct by the prosecutor prevented a fair trial”.
Since we found merit in defendant’s contentions concerning the denial of his right to counsel at the lineup, and prosecutorial misconduct, and those errors require reversal, and a remand for a new trial, we do not pass upon the merits of the defendant’s contention that the trial court erred in its charge.
Accordingly, the judgment of the Supreme Court, New York County (Peggy Bernheim, J., at the Wade hearing, trial and sentence), entered March 1, 1984, which convicted the defendant, after a jury trial, of two counts of murder in the second degree (Penal Law § 125.25), attempted murder in the second degree (Penal Law §§ 110.00, 125.25), robbery in the first degree (Penal Law § 160.15), and two counts of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15), and sentenced him to concurrent indeterminate terms of from 25 years to life on the murder counts, 8V3 to 25 years on the attempted murder count, 12\á to 25 years on the first degree robbery count, and 5 to 15 years on the attempted robbery counts, should be unanimously reversed, on the law and on the facts, judgment vacated, defendant’s motion to suppress lineup identifications granted, and the matter remanded for a new trial.
Kupferman, J. P., Kassal, Rosenberger and Smith, JJ., concur.
Judgment, Supreme Court, New York County, rendered on March 1, 1984, unanimously reversed, on the law and on the facts, the judgment vacated, defendant’s motion to suppress lineup identifications granted, and the matter remanded for a new trial.
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OPINION OF THE COURT
Per Curiam.
The respondent was admitted to practice by this court on October 14, 1959.
*204In this proceeding the Special Referee sustained a single charge of misconduct against the respondent alleging that he engaged in conduct that adversely reflected on his fitness to practice law by charging a clearly excessive fee. The respondent had charged an elderly woman client $10,000 for services valued between $1,000 and $1,500, and later refused to return any of the fee to his client.
The petitioner moves to confirm the report of the Special Referee and the respondent submits an affidavit in response.
After reviewing all of the evidence, we are in full agreement with the report of the Special Referee. The respondent is guilty of the misconduct outlined above. The petitioner’s motion to confirm the Special Referee’s report is granted.
In determining an appropriate measure of discipline to be imposed, we have taken into consideration the mitigating circumstances set forth by the respondent at the hearing of this matter. It should also be noted that by letter dated September 11, 1981, the respondent was cautioned by the petitioner Grievance Committee to "promptly undertake all legal matters” for which he received a fee and to "promptly return all fees following the reassignment of the case to another attorney”, and by letter dated March 11, 1981, he was cautioned by the Committee on Professional Standards, Third Judicial Department, for his neglect of a legal matter entrusted to him and for his failure to cooperate with the Committee in its investigation of complaints. Accordingly, the respondent should be, and hereby is, suspended from the practice of law for a period of one year commencing June 15, 1988, continuing until satisfactory arrangements are made for restitution, and until the further order of this court.
Mollen, P. J., Mangano, Thompson, Brown and Kunzeman, JJ., concur.
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OPINION OF THE COURT
Kane, J. P.
In early 1985, respondent American REF-FUEL Company of Hempstead (hereinafter REF-FUEL) began negotiations with petitioner, Long Island Lighting Company (hereinafter LILCO), regarding LILCO’s purchase of electricity from REF-FUEL, as required by statute (see, Public Service Law § 66-c). REF-FUEL was planning to build and operate a solid waste-to-energy facility in the Town of Hempstead, Nassau County, in order to dispose of the town’s solid waste. REF-FUEL anticipated that the facility would produce between 63.5 megawatts and 79.9 megawatts of electricity and would be classified as a "qualifying facility” under the Federal Public Utility Regulatory Policies Act of 1978 (hereinafter PURPA) (see, 16 USC § 796).1
*208In an effort to streamline negotiations between small alternative energy producers such as REF-FUEL and electric utilities such as LILCO, respondent Public Service Commission (hereinafter the PSC) issued Opinion and Order No. 86-8 (hereinafter Opinion 86-8) on March 27, 1986. PURPA requires a utility purchasing electricity from a qualifying facility to pay the "actual avoided cost”, that is, the cost the utility avoids paying by not generating or producing such power itself (see, 16 USC § 824a-3 [d]). In New York, Public Service Law § 66-c (1) grants the PSC the authority to set a minimum price the utility must pay but specifically prohibits the price from being lower than 6 cents per kilowatt hour (hereinafter KWH). As a result, a negotiated contract price may run greater than the actual avoided cost. However, such mandatory pricing has been upheld because such contracts afford the independent energy producers security, thus giving them an incentive to pursue alternate methods of producing electricity (see, Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424, appeal dismissed 470 US 1075; see also, American Paper Inst. v American Elec. Power, 461 US 402).
Opinion 86-8 included a "long run avoided cost” (hereinafter LRAC) projection whereby the price actually paid by the utility would be projected at the contract’s inception and last the length of the contract. It also delineated two specific contract options for nonhydroelectric facilities such as REF-FUEL. REF-FUEL’s proposed contract to LILCO basically used the second option which calculated the price based on LILCO’s actual avoided cost tariff rate with a negotiated floor and ceiling tied to LRAC estimates below and above which the price paid by LILCO could not go. However, no agreement was made and the parties turned to the PSC for nonbinding mediation. The areas of dispute concerned, inter alia, the length of the contract and its provisions for price updates. REF-FUEL sought a 20-year contract with no price updates, arguing that these provisions were necessary to guarantee it minimum payments for the life of its bonds and its contract *209with the Town of Hempstead. LILCO, on the other hand, sought a 15-year contract with price updates in the sixth and eleventh years of the contract. LILCO’s proposal conformed with Opinion 86-8’s provisions.
The second option of Opinion 86-8 that REF-FUEL was relying on came to be known as the "cone pricing proposal” since both the ceiling and floor, as percentage functions of the steadily rising LRAC, diverged from the LRAC to form a "cone”. The floor guaranteed a minimum price to REF-FUEL while the ceiling provided a maximum price that would protect LILCO should the cost of producing electricity significantly increase. Although the PSC mediation staff recommended approval of REF-FUEL’s proposal, LILCO refused to accept it and REF-FUEL petitioned the PSC to compel LIL-CO’s acceptance. Upon the advice of its Power Division, the PSC initially recommended further negotiations. As a result, a new proposal known as an "asymmetrical pricing cone” was developed wherein the floor, while never going below the statutory 6 cents/KWH minimum, would descend over time lower than the ceiling would rise above the linear LRAC. Although the ceiling would ascend at a steady rate of 20% of the LRAC, the floor would remain at the 6 cent minimum for the first five years, then decline to 20% of the LRAC for years 6 through 10, fall 25% for years 11 to 15 and 40% in years 16 through 20. The proposal also included a potential 10% reduction in the price paid to REF-FUEL in the years 2001 through 2008. Based on the Power Division’s recommendations, the PSC approved the new proposed contract and ordered LILCO to sign it. Upon the denial of its motion for a rehearing, LILCO signed the contract under protest and commenced the instant CPLR article 78 proceeding. Supreme Court dismissed LILCO’s petition and LILCO has appealed.
Initially, LILCO claims that the floor of the pricing cone exceeds the statutory 6 cent/KWH minimum and that in these times of low oil prices, this provides an unfair windfall to REF-FUEL while unfairly burdening LILCO’s ratepayers.2 However, as the Court of Appeals specifically pointed out in Matter of Consolidated Edison Co. v Public Serv. Commn. (63 *210NY2d 424, 438, supra), "failure to achieve consumer ratesavings is not necessarily abhorrent to the primary purpose of PURPA, which is to encourage development of cogeneration and small power facilities” (emphasis supplied). LILCO’s argument is based in part on the claim that the pricing cone violates Federal law because it departs from actual avoided costs when such costs may fall beneath the floor. Again, however, in Consolidated Edison the court noted that although the 6 cent minimum might not provide ratesavings because it could at times exceed actual avoided costs, the rate still furthered PURPA’s objective of encouraging alternate energy production and was therefore valid (supra, at 438). Similarly, in this case, although the pricing cone could result in costs higher than actual avoided costs, it did not violate Federal law.
LILCO also claims that the pricing cone violates State law since it sets a compulsory price above the statutory minimum of 6 cents/KWH. However, the clear language of Public Service Law § 66-c (1) (a) belies this argument: "the [PSC] shall require any electric corporation * * * to enter into long-term contracts to purchase * * * electricity * * * from any * * * co-generation facility under such terms and conditions as the [PSC] shall find just and economically reasonable * * * provided, however, the [PSC] shall establish a minimum sales price for such purchased electricity * * * of at least six cents per kilowatt hour for each utility” (emphasis supplied). Thus, the 6 cent/KWH price is only a minimum that the PSC must impose and in requiring a higher price, it is limited only by the phrase "just and economically reasonable”, a criterion we find to have been satisfied in the instant case. As the PSC noted, "the proposed floor price is low enough to encompass most conservative projections of avoided costs”. Therefore, we find no violation of either Federal or State law by the PSC in ordering LILCO to sign the contract.
LILCO next asserts that the PSC violated its own guidelines as set forth in Opinion 86-8 and therefore its determination accepting the contract was arbitrary and capricious. LILCO argues that Opinion 86-8 mandated a maximum contract duration of 15 years with cost evaluations in the sixth and eleventh years. Although Opinion 86-8 did provide for both of these clauses, it was specifically stated that they were "minimum options” that did not "bar parties from agreeing to different contract provisions suitable to the circumstances of a particular project. We continue, therefore, to encourage devel*211opers and utilities to engage in good faith negotiations” (emphasis supplied). In our view, Opinion 86-8 provided only guidelines and the PSC was not bound to impose these guidelines on the parties during mediation. Here, REF-FUEL initially and continually sought a 20-year contract with no renegotiation provisions. It rejected the alternatives offered by LILCO on the ground that they failed to provide the revenue needed to finance the project. With the PSC mediating, LILCO set conditions for accepting a 20-year contract and when these were rejected, LILCO refused to participate further in the mediation. The "asymmetrical pricing cone” and the 10% reduction proposal were then set forth by the PSC and agreed to by REF-FUEL. These were reasonable attempts by the PSC to meet LILCO’s objections to the contract length and the floor price. Since the PSC’s decision involved factual evaluations of areas within its particular expertise, and its decision is supported by the record, we decline to disturb its determination with respect to the contract’s length and lack of update procedures (see, Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363).3
However, we reach a different conclusion with respect to another provision set forth in Opinion 86-8. In providing for what LRAC would apply to which contracts, Opinion 86-8 clearly mandated that the LRAC set forth therein would apply only to those facilities commencing operation before 1989 and an entirely new LRAC would apply to facilities commencing operations in 1989. Here, REF-FUEL is set to start producing electricity in 1989; therefore, under Opinion 86-8, new LRAC estimates appear to be applicable.
As Public Service Law § 23 (1) states: "Every order of the [PSC] shall take effect at a time therein specified and shall continue in force either for a period which may be designated therein or until changed or abrogated by the [PSC]”. Here, no change was made in the rule and it therefore remained in full force and effect at the time the contract was signed. Furthermore, the PSC gave no explanation in its order requiring *212LILCO to sign the contract for applying the 1986 LRAC to REF-FUEL. An agency is required to set forth its reasons for altering a prior course and without such an explanation, a reviewing court is unable to determine whether the agency had valid reasons for its actions (see, Matter of Field Delivery Serv. [Roberts], 66 NY2d 516, 520). Even if the record contains substantial evidence to support the determination, this court may not substitute what it deems to be the appropriate basis (see, supra; see also, Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424, 441, supra). The determination should therefore be modified by annulling so much thereof as determined that the 1986 LRAC should apply and the matter should be remitted to the PSC for further proceedings on this issue. In so doing, we emphasize that the PSC’s use of the 1986 figures was not necessarily irrational; however, to permit proper judicial review, the PSC should explain its reasoning for the departure from Opinion 86-8 with regard to an updated LRAC.
As a final matter, we reject LILCO’s suggestion to consider in the "interest of justice” an interim policy statement issued by the PSC subsequent to the parties signing the contract wherein the PSC acknowledges that actual avoided costs of utilities are currently running below the statutory 6 cent/KWH minimum. The policy statement specifically enunciated its prospective only nature. At the time the contract was signed, the pricing cone was a rational approach to the dual policy of encouraging cogeneration and protecting ratepayers. Additionally, the contract not only protects REF-FUEL from too precipitous a drop in oil prices, it also protects LILCO against a dramatic increase in such prices.
Weiss, Levine, Harvey and Mercure, JJ., concur.
Judgment modified, without costs, by reversing so much thereof as dismissed the petition; remit the issue of why the 1986 LRAC was followed to respondent Public Service Commission for clarification of its reasons for doing so; and, as so modified, affirmed.
. Congress enacted PURPA to encourage the development of alternate energy sources in order to decrease this country’s dependency on fossil fuels. PURPA required electric utilities to sell and purchase electric energy to and from those Federal facilities found qualified for such treatment under PURPA’s rules. Thereafter, this State passed Public Service Law § 66-c, (n. cont’d) *208which had the same goals as PURPA. This statute also required electric utilities to both purchase and sell power produced by State qualifying facilities. A more detailed discussion of PURPA is found in Federal Energy Regulatory Commn. v Mississippi (456 US 742) and American Paper Inst, v American Elec. Power (461 US 402), while a more thorough explanation of Public Service Law § 66-c is provided in Matter of Consolidated Edison Co. v Public Serv. Commn. (63 NY2d 424, appeal dismissed 470 US 1075).
. Although not applicable to this case, we take note of the Federal Energy Regulatory Commission’s recent ruling that States cannot impose a rate exceeding avoided cost on purchase of power. Its decision was issued April 14, 1988 and specifically noted that its application was prospective only (1988 FERC Order on Petition for Declaratory Order, No. EL87-53-000, at 23).
. We also reject the claim that the PSC’s reliance on a "sensitivity analysis” performed by its staff was improper since it was not part of the record. This analysis was only an evaluation of the effect of depressed oil prices on LRAC estimates and PSC staff informed LILCO that its evaluation would take into account these lower prices. This information was available to LILCO and the PSC’s decision to conduct an independent analysis was not improper (see, Matter of ADT Co. v Public Serv. Commit., 128 AD2d 1, 4-5).
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