IN THE MATTER OF ROBERT O. (ANONYMOUS), APPELLANT,
v. RUSSELL K. (ANONYMOUS) ET AL., RESPONDENTS.
80 N.Y.2d 254, 604 N.E.2d 99, 590 N.Y.S.2d 37 (1992).
October 27, 1992
2 No. 191
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Donald E. Grossfield, for Appellant.
Frederick J. Magovern, for Respondents.
John Francis Phelan, law guardian.
Catholic Adoptive Parents Association, Inc., amicus curiae.
Robert Abrams, Attorney General of the State of New York, amicus curiae.
Petitioner, an unwed father, seeks to vacate a final order approving the adoption of his son. He contends that the mother or the State had a duty to ensure he knew of the birth and that their failure to do so denied him his constitutional rights. Inasmuch as petitioner failed to take any steps to discover the pregnancy or the birth of the child before first asserting his parental interest 10 months after the adoption became final, we conclude he was neither entitled to notice nor was his consent to the adoption required. We, therefore, affirm.
The courts below found the following facts.
In December 1987, petitioner Robert O. and Carol A. became engaged and petitioner moved into Carol's home. Disagreements arose, however, and in February 1988, petitioner moved out and terminated all contact with Carol. At that time Carol was pregnant but she did not tell petitioner, apparently because she believed he would feel she was trying to coerce him into marriage. Over the next few weeks, Carol approached her friends, respondents Russell K. and his wife Joanne K., and procured their agreement to adopt her child. On October 1, 1988, Carol gave birth to a boy, who was delivered to respondents upon her discharge from the hospital. Carol later executed a judicial consent and, in May 1989, the adoption was finalized.
Carol was never asked by the adoption court to identify the father. She did sign a statement indicating, accurately, that there was no one entitled to notice of the adoption under Domestic Relations Law § 111-a or whose consent was required under Domestic Relations Law § 111.
Between the time Carol and petitioner separated in March 1988 and January 1990, petitioner made no attempt to contact Carol although she continued to live in the same house and, as the courts below found, did nothing to conceal her whereabouts or her pregnancy. In January 1990, petitioner and Carol reconciled and subsequently married. In March 1990 -- nearly 18 months after the birth and 10 months after the completed adoption -- Carol informed petitioner that the child had been born. In a belated effort to meet the statutory requirements for notice and consent, petitioner reimbursed Carol for her medical expenses, filed with the Putative Father Registry, and commenced this proceeding to vacate the adoption (see, Domestic Relations Law §§ 111 and 111-a).
Family Court rejected petitioner's claim that there had been either fraud or concealment of a material fact in the adoption. In addition, it concluded that petitioner had no constitutional right to notice of the adoption proceedings or to veto or consent to the adoption. The Appellate Division unanimously affirmed.
Petitioner's first claim is that the adoption was procured by fraud through the deception or concealment of Carol and respondents. The courts below found that there was no deception or concealment, and inasmuch as these factual findings are fully supported by evidence in the record, we are bound by them (see, Humphrey v State of New York, 60 NY2d 742, 743-744).
Petitioner concedes that the applicable statutes do not require notice to one in his position or require his consent to the adoption. Domestic Relations Law § 111-a(2) provides the father of a child born outside wedlock can qualify for notice of an adoption proceeding in any one of several ways: by having been adjudicated to be the father, by filing a timely notice of intent to claim paternity, by living openly with the mother and child and holding himself out as the father, by having been named the father in a sworn statement by the mother, by having married the mother subsequent to the birth, or by filing with the Putative Father Registry. As petitioner notes, these actions generally presume that the father knows he has a child before the adoption is finalized and he had no such knowledge.
Domestic Relations Law § 111(1)(e), the consent statute relevant here because the child was younger than six months at the time he was placed for adoption, did not require the petitioner's consent because he had not held himself out as the father or met the other statutory requirements.[n 1]
Petitioner contends that because these New York laws fail to require notice and consent from a father in his position, they deny biological fathers a constitutional liberty interest. He maintains that before an adoption is finalized, the courts must be required to resolve the factual issue of who the biological father is and determine whether he has had sufficient opportunity to establish a relationship with the child, in part by requiring the mother to testify as to paternity.
The nature of the constitutional interest possessed by unwed fathers has been addressed previously by both the Supreme Court and this Court.
The Supreme Court, beginning with Stanley v Illinois (405 US 645), has recognized that some unwed fathers, by their conduct in relation to their children, enjoy parental rights protected by the Federal Constitution (see, Quilloin v Walcott, 434 US 246; Caban v Mohammed, 441 US 380; Lehr v Robertson, 463 US 248). The guiding principle has been that the biological connection between father and child is not sufficient, in and of itself, to create a protected interest for the father. Only if the unwed father "grasps the opportunity" to form a relationship with his child will the inchoate right created by biology blossom into a protected liberty interest under the Constitution. The Lehr Court stated it thus: "When an unwed father demonstrates a full commitment to the responsibilities of parenthood...his interest in personal contact with his child acquires substantial protection under the Due Process Clause....But the mere existence of a biological link does not merit equivalent constitutional protection" (Lehr v Robertson, supra, at 261).
We subsequently followed this reasoning to hold that the unwed father of a newborn infant has a right to veto an adoption if he manifests a willingness to assume full custody of the child (Matter of Raquel Marie X., 76 NY2d 387). In making that determination of willingness, courts are to consider such factors as whether the father paid the medical bills related to the pregnancy, whether he held himself out as the father, and, "perhaps most significantly", whether his manifestations of willingness took place promptly (id., at 408). Like the notice statute, the standards set forth in Raquel Marie presuppose that the father knows he is a father.
Manifestly, the unwed father of an infant placed for adoption immediately at birth faces a unique dilemma should he desire to establish his parental rights. Any opportunity he has to shoulder the responsibility of parenthood may disappear before he has a chance to grasp it, no matter how willing he is to do so. Accordingly, we have acknowledged that in some instances the Constitution protects an unwed father's opportunity to develop a relationship with his infant son or daughter (id., at 401-402). This constitutional right to the opportunity to develop a qualifying relationship does not extend to all unwed fathers or arise from the mere fact of biology. The right exists only for the unwed father who manifests his willingness to assume full custody of the child and does so promptly.
Petitioner asks us to extend Raquel Marie's protection to him -- i.e., to find that the Constitution also protects the custodial opportunity of the "unknowing" unwed father who does nothing to manifest his parental willingness before placement because he is unaware of the child's existence. His claim necessarily supposes the existence of some liberty interest that he has and that the State has improperly denied. Absent such interest, our inquiry is finished and we need inquire no further into the constitutional adequacy of New York's adoption procedures.
Petitioner finds evidence that this liberty interest exists from a statement in Lehr and our holding in Matter of Baby Girl S. (the companion case to Raquel Marie). In Lehr, a New York unwed father who had not been actively involved in his child's life commenced a paternity action in one county, unaware that the mother and her husband had initiated adoption proceedings in another. The adoption court, though aware of the paternity action, proceeded to finalize the adoption. The Supreme Court rejected the unwed father's argument that he was entitled to notice, noting that he could have guaranteed his right to notice by registering with the Putative Father Registry (Lehr v Robertson, supra, at 264). The Court stated in passing, and petitioner seizes this as central to his argument, "if qualification for notice were beyond the control of an interested putative father, [New York's statutory scheme] might be thought procedurally inadequate" (id., at 264).[n 2]
In Raquel Marie, we followed that theme, finding that the father in a companion case, Matter of Baby Girl S. (see, 141 Misc 2d 905), had gained a protected liberty interest, even though he failed to meet the statutory requirements of Domestic Relations Law § 111(1)(e), because he had done "everything possible to manifest and establish his parental responsibility" (Matter of Raquel Marie X., supra, at 409). His failure to meet the statutory requirements promptly was due not to his own failings but to the concerted actions of the mother and the adopting parents to frustrate his efforts. Under those circumstances, we held that "a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship" (id., at 403).
Petitioner analogizes his situation to that of the father in Baby Girl S.. In his rendering of the events, as soon as he became aware of the child's existence, he manifested his willingness to assume full parental responsibility by taking those steps available to get legal custody of the child. Petitioner correctly reads Lehr and Raquel Marie to stand for the proposition that an unwed father who has promptly done all that he could to protect his parental interest is entitled to constitutional protection. His argument falters, however, in its conclusion that he has met that standard.
We made clear in our decision in Raquel Marie that the timing of the father's actions is the "most significant" element in determining whether an unwed father has created a liberty interest (see, Matter of Raquel Marie X., supra, at 408). States have a legitimate concern for prompt and certain adoption procedures and their determination of the rights of unwed fathers need not be blind to the "vital importance" of creating adoption procedures possessed of "promptness and finality," promoting the best interests of the child, and protecting the rights of interested third parties like adoptive parents (Lehr v Robertson, supra, at 263-266, 266 fn 25). Recognizing those competing interests -- all of which are jeopardized when an unwed father is allowed to belatedly assert his rights -- we stressed in Raquel Marie that the period in which the biological father must manifest his parental interest is limited in duration: if the father's actions are untimely, the State can deny a right of consent. In Raquel Marie we limited the period in which the father must act to the six continuing months immediately preceding the child's placement for adoption (Matter of Raquel Marie X., supra, at 408).
To conclude that petitioner acted promptly once he became aware of the child is to fundamentally misconstrue whose timetable is relevant. Promptness is measured in terms of the baby's life not by the onset of the father's awareness. The demand for prompt action by the father at the child's birth is neither arbitrary nor punitive, but instead a logical and necessary outgrowth of the State's legitimate interest in the child's need for early permanence and stability. The competing interests at stake in an adoption -- and the complications presented by petitioner's position -- are clearly illustrated here: Nearly a year and a half after the baby came to live with the adoptive parents, and more than 10 months after they were told by the court that the baby was legally theirs, petitioner sought to rearrange those lives by initiating his present legal action.
During the first months of his son's life, petitioner's only connection to the infant was biological. That he now asserts that he was willing to be a custodial parent, had he only known, adds nothing to his argument, even if we accept the dubious proposition that a willingness so abstract and amorphous has some legal significance. Something more than an assertion of custody is required (Matter of Raquel Marie X., 76 NY2d 387, at 408, supra). There must be manifestation through action on the part of the unwed father. Absent that, the biological link of the father is insufficient to create a constitutionally protected interest (Lehr v Robertson, supra, at 261), and petitioner's Due Process claim fails.
Petitioner's argument confuses the meaning of the constitutionally protected "opportunity" we recognized in Raquel Marie. The opportunity at issue there, and the one we found constitutionally protected, was the opportunity "to develop a qualifying relationship with the infant" (Matter of Raquel Marie X., supra, at 401). That opportunity arose and became protected only after the father had manifested his willingness to be a custodial parent. The opportunity petitioner seeks to protect is different and quite separate. It is the opportunity to manifest his willingness. No one, however, let alone any State actor, prevented petitioner from finding out about Carol's pregnancy. His inaction, however regrettable and with whatever unfortunate consequences, was solely attributable to him. Nothing in Raquel Marie or the Supreme Court decisions on which it rests suggests that the protections of constitutional due process must or should be extended to him under these circumstances.
The concurrence analyzes the case somewhat differently. It takes what the Court has referred to as an "opportunity" (ante, p 7) and re-labels it an "interest." While conceding that it is an interest arising exclusively from the father's biological connection to the child, the concurrence believes that in some instances this "interest" would nonetheless warrant constitutional protection under its due process analysis (concurring opn at 7, fn 1). It concludes that the biological father must lose in this case because of the "sensitive balancing" of interests entailed in a due process inquiry. However, a due process analysis properly begins by defining the nature of the liberty interest claimed (Lehr v Robertson, 463 US 248, supra, at 256). Here there is only the biological connection. Whether that gives rise to an "opportunity" or a "parental interest," the cases make clear that when the State decides to finalize the adoption the father has no right that requires balancing. While the outcome is the same in this case, the implication of the concurrence's analysis is that under other circumstances, where the balance is different, the State may be compelled under due process principles to extend protection to the biological father. That result would run counter to the established principle that biology alone is not enough to warrant constitutional protection. But what is more troubling, despite the concurrence's assurances to the contrary, is that a holding that this "right" requires due process recognition would logically and inevitably lead to inhibiting a state's interest in prompt and efficient efforts to finalize adoption proceedings and limiting a mother's right to privacy (see, Matter of Jessica XX., 54 NY2d 417, 433 fn 2 [Cooke, C.J., dissenting]; Matter of Adoption of Christopher L., 113 Misc 2d 904; see also, Planned Parenthood of Southeastern Pennsylvania v Casey, 112 S Ct 2791, 2830-31). Indeed, even if it were constitutionally permissible to compel disclosure, the State has not chosen to do so and the Constitution does not compel it.
Finally, the Court's decision is not, as the concurrence maintains, contrary to the holding in Raquel Marie (slip opn at p 7), fn 1). The Court does not hold today that the biological father's ability to assert an interest was "completely extinguished once the State acted by proceeding with the adoption" (concurring opn at 7, fn 1). Had petitioner promptly manifested his willingness to take on parental responsibilities, he, like the unwed father in Baby Girl S., would have enjoyed the protection of the Constitution even though the State had begun adoption proceedings. The concurrence similarly errs when it attempts to read Raquel Marie as holding that "where a child is placed for adoption before any real realtionship can exist, an unwed father has some continuing interest" (concurring opn at 7, fn 1). It overlooks the fact that the interest being spoken of in the relevant portion of Raquel Marie (supra, at 401-402) is nothing more than the "biological parental interest" -- i.e., the opportunity, of limited duration, to manifest a willingness to be a parent. As Raquel Marie made clear, and we reaffirm today, that opportunity becomes protected only if grasped.
Petitioner's Equal Protection claim also fails for it is settled that the existence or nonexistence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child (Lehr v Robertson, supra, at 266-67). Nothing in the Clause precludes the State from withholding the privilege of vetoing an adoption from an unwed father who has never come forward to participate in the rearing of his child (Caban v Mohammed, 441 US 380, 392, supra). That "unknowing" unwed fathers may be treated differently under the statute than other unwed fathers is not dispositive. Our Equal Protection inquiry "does not focus on the abstract 'fairness' of a state law but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment" (Lalli v Lalli, 439 US 259, 272-273). In his attack, petitioner has not met the burden of showing a lack of rationality in either the notice or the consent provisions of New York law.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
F O O T N O T E S
1. We struck down that section as unconstitutional in Matter of Raquel Marie X. (76 NY2d 387, 406-407), after this adoption became final, because the provision of § 111(1)(e) that premised the father's right to consent on his living with the mother was not sufficiently related to the State's legitimate interest in the quality of the relationship between the father and the child and it allowed the mother to block a willing father's attempt to assert his parental rights. By referring to that decision throughout the opinion, we do not mean to imply that Raquel Marie has any retrospective application to this case or to adoptions finalized before it was announced. It does not. Its reasoning, however, provides a useful starting point for analysis in the case before us.
2. Lehr dealt solely with the procedural issue of notice under Domestic Relations Law § 111-a and not with consent under § 111. Consequently, it is not clear that even had the father there succeeded in his argument he would have received anything more than the right to be heard on the best interest of the child at the adoption proceeding (see, Domestic Relations Law § 111-a(3).
TITONE, J. (concurring):
I agree that due process does not require the unraveling of a 10-month-old adoption at the behest of a biological father whose identity was unknown and unknowable at the time the adoption became final, but I cannot agree that, in all circumstances, "biology alone is not enough to warrant constitutional protection" (slip op., at 12). Additionally, I cannot agree with the majority's reliance on the purported fault of this biological father in "fail[ing] to take any steps to discover the pregnancy or birth of the child" until after the child was adopted. In my view, the adoption should be left undisturbed despite petitioner's competing interest in the child not because petitioner is blameworthy, but rather because the strong public policies favoring the finality of adoptions outweigh the interest of a biological father who, through no fault of his own, has been deprived of the opportunity to "manifest and establish his parental responsibility" toward the child (see, Matter of Raquel Marie X., 76 NY2d 387, 409, cert denied __ US __, 111 S Ct 517).
At the heart of my disagreement with the majority is the unrealistic burden that its rationale imposes on the multitude of men who, in this age of sexual permissiveness, have intimate relations with women to whom they are not married. Because of the biological characteristics of the parties to these relationships, it is the women, rather than the men, who are in the unique position to discover whether a pregnancy has resulted. Further, in most instances, it is the women, rather than the men, who hold the exclusive power to decide whether or not the other progenitor is to be informed of the pregnancy's existence. The man who has not been told of the pregnancy has few, if any, avenues of recourse.
Indeed, although the majority has not hesitated to assign blame to petitioner because of what it terms his "inaction," it has not even begun to identify just what it is that petitioner might have done to fulfill his responsibilities in these circumstances. Does the majority mean to suggest that all men who engage in sexual intercourse with women to whom they are not married must remain in regular contact with them even after their relationships have terminated in order to ascertain whether there has been a pregnancy? Must they also make inquiries in the community or pursue alternative sources of information in order to definitively rule out the possibility that the relationship may have produced a child?
I would submit, most respectfully, that a rule which places the onus on the man to investigate whether a woman with whom he is no longer intimate has become pregnant is simply out of step with modern mores and the realities of contemporary heterosexual liaisons. In this age of readily accessible birth control devices, men have greatly diminished reason, in most circumstances, to suspect that a woman with whom they have been intimate has become pregnant. Accordingly, there is little to prompt them to pursue their former lovers to satisfy themselves on that point. Moreover, a rule that requires men to foist continued contact on women with whom they are no longer involved overlooks women's interest in preserving their own privacy after the relationship has been terminated.
Contrary to the majority's suggestion my conclusion that the law should not hold petitioner accountable for failing to discover his former fiancee's pregnancy does not lead me to the further conclusion that "the protections of constitutional due process must or should be extended to him under these circumstances" (slip op., at 11). Although petitioner is innocent of any untoward neglect and, in fact, had a constitutionally cognizable interest in a parental relationship with his biological child (see, Matter of Raquel Marie, supra, at 401-402), that interest does not outweigh the State's countervailing interest in ensuring the finality of adoptions and, thus, it was not entitled to constitutional protection.
The central importance of finality in the adoption process has been recognized by both the Legislature and the courts (see, e.g., Matter of Sarah K., 66 NY2d 223; 1972 NY Legis Ann, at 202-203; Memorandum from Office of Senate Temporary President, Bill Jacket, L 1972, ch 639). While the State must make every effort to protect the rights of biological parents in adoption proceedings (see, e.g., Lehr v Robertson, 463 US 248; Caban v Mohammed, 441 US 380), there also must come a point where the matter is deemed irrevocably closed, so that the parties can go forward with their lives, secure in the certainty that their legal and familial status can no longer be disturbed.
The importance of finality in the lives of the children involved in the adoption process is so obvious as to require little elaboration. One of the most crucial elements of a healthy childhood is the availability of a stable home in which each family member has a secure and definite place. In addition to the stake of the adopted child, the adoptive family is unquestionably "adversely affect[ed] by any lingering uncertainty about the permanence of the adoption" (1972 NY Legis Ann, supra, at 202). As one commentator has observed, "[t]he bond, the love, the intense emotion between adoptive parents and the child placed in their home, is created the very moment their dream is fulfilled and a child comes through the door" (Memorandum from Office of Senate Temporary President, supra). Lastly, society has an independent interest in the finality of adoptions, since the adoptive relationship implicates many legal rights of the parties, including the right to inherit and the right to receive certain governmental benefits.
If petitioner's position were to be embraced by the Court, the critical goal of finality could never be achieved for the substantial number of children whose biological fathers have not been apprised of their existence. Such children -- as well as their adoptive families -- would be forever relegated to a state of legal limbo in which their familial relationship would remain subject to the possibility that their biological fathers might suddenly learn of their birth and appear to reclaim them. Clearly, such a result is one that cannot be tolerated in a legal system that concerns itself with humane values.
While due-process principles may give unmarried fathers the right to an opportunity to develop relationships with their biological children (see, Stanley v Illinois, 405 US 645; Matter of Raquel Marie X., supra), there is nothing in the State or federal Constitutions that compels states to protect that right at all costs. To the contrary, the due-process inquiry necessarily entails a sensitive balancing of the biological parents' interests against "[t]he legitimate state interests in facilitating the adoption of young children and having the adoption proceeding completed expeditiously" (Lehr v Roberts, supra, at 265).
In situations such as this one, the interests of the biological father are relatively slight, since he has not developed a relationship with the child. On the other hand, his interests cannot simply be disregarded or deemed extinguished, since, unlike the biological fathers in Lehr v Robertson (supra) and Quillon v Walcott (434 US 246), petitioner had no realistic opportunity to manifest his parental commitment and, accordingly, cannot be treated as though he knowingly relinquished that opportunity.
Nonetheless, petitioner's interest is not entitled to constitutional protection, since it simply cannot be accommodated without sacrificing the paramount state interest in finality. When the slender interest petitioner has is compared to this very weighty competing interest of the state, we are duty bound to opt for a legal rule that promotes the former, even though that rule may well omit many potentially responsible fathers in petitioner's position (see, Lehr v Robertson, supra, at 264).[n 1]
Contrary to the majority's assertion, there is nothing in the foregoing analysis that implicates "a mother's right to privacy" or suggests that disclosure of the biological father's identity may be compelled in these circumstances (see, slip op., at 12-13; cf., Planned Parenthood v Casey, 112 S Ct 2791). Indeed, I would argue that no law could, or should, be written to prevent women such as Carol A. from making the very personal and human choice to withhold information about their pregnancies from the men whom they know are the biological fathers. Furthermore, in view of these women's legitimate privacy interests, I would certainly not require the establishment of institutional mechanisms, such as a mandatory notice or disclosure requirement, as means of accommodating the interests of biological fathers. Those interests are simply not substantial enough to warrant such extreme measures.
The third societal interests that the majority identifies (slip op., at 12) -- efficiency -- stands on an entirely different footing. While perhaps desirable, efficiency is simply not, by itself, the kind of goal that warrants the solicitude we might give to the privacy rights of unwed mothers or the finality of adoptions. Accordingly, I would willingly acknowledge that, as the majority has accurately observed, I might well conclude that, in the proper circumstances, efficiency in the system alone is not a sufficiently important end to overcome a biological tie.
In sum, petitioner's situation is an unfortunate one, since, through no real fault of his own, he has been deprived of "the blessings of the parent-child relationship" and even the opportunity of developing such a relationship (Lehr v Robertson, supra, at 262). However, his dilemma was created not by any institutionalized mechanism or unrealistic legal barrier imposed by the State, but rather by Carol A.'s personal -- and perfectly understandable -- decisions to keep her pregnancy secret from him and to surrender their child without disclosing his identity. In these circumstances, the interests petitioner may have had in his role as a biological father are more than outweighed by society's overriding interest in ensuring the finality of his child's adoption. For that reason, and that reason alone, I conclude that petitioner's interests are not entitled to due-process protection, and, accordingly, I concur in the Court's decision to affirm.
F O O T N O T E
1. The difference between the majority's position and my own is not simply a matter of how the biological father's "interest" is characterized or labelled (see, slip op., at 11-12). Rather, we differ on the more fundamental question of whether the father's interests arising from his biological connection, however they are characterized, were completely extinguished once the State acted by proceeding with the adoption. The majority's conclusion that they were seems at odds with the Court's statement in Matter of Raquel Marie X. (supra, at 401-402) that "where a child is placed for adoption before any real relationship can exist," an unwed father has some continuing interest, although that interest "can be lost entirely, or greatly diminished in constitutional significance, by failure to timely exercise it or by failure to take the available legal steps to substantiate it." As the Supreme Court has recognized on several occasions (e.g., Lehr v Robertson, 463 US 248; Quillon v Walcott, 434 US 246; Stanley v Illinois, 405 US 645), the question is not whether the biological father has a constitutionally cognizable interest, but rather whether, by virtue of his conduct in relation to the child as well as the other relevant circumstances, his interest has become sufficiently weighty as to be deserving of constitutional protection. Like the majority, I would answer that question in the negative here, where adoption proceedings had already begun and, in fact, been finalized before petitioner learned of the child's existence and came forward. However, unlike the majority, I would not go so far as to assert the sweeping conclusion that biology alone can never be enough to warrant some constitutional protection, regardless of the context or the consequences (slip op., at 12). There is simply nothing in the relevant case law that requires such an extreme position.
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Order affirmed, with costs. Opinion by Judge Simons. Chief Judge Wachtler and Judges Kaye, Hancock and Bellacosa concur. Judge Titone concurs in result in an opinion. Judge Smith took no part.