chop_here="076_0172.htm" Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172 (1990)

PAUL BROWN ET AL., RESPONDENTS, v. TWO EXCHANGE PLAZA PARTNERS, DEFENDANT, AND GEORGE A. FULLER COMPANY, RESPONDENT, v. HEYDT CONTRACTING CORP., ET AL., RESPONDENTS, A & M WALLBOARD CO., APPELLANT, v. WALTER F. UMLA, INC. ET AL., RESPONDENTS.
76 N.Y.2d 172, 556 N.E.2d 430, 556 N.Y.S.2d 991 (1990).
June 7, 1990

1 No. 122

Decided June 7, 1990

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Anthony J. McNulty, Dudley M. Thompson, NY City, for Appellant A & M.
Ignatius J. Melito, S. Dwight Stephens, NY City, for Respondent Fuller.
Theodore H. Rosenblatt, NY City, for Respondent Heydt.
Joseph D. Ahearn, Joseph W. Conklin, NY City, for Respondent Central Furring.

SIMONS, J.:

The general contractor in this building construction case has been held liable to a worker injured in the performance of a subcontractor's work solely by reason of Labor Law § 240(1). The subcontractor had agreed to indemnify the contractor for such liability and the issue submitted is whether General Obligations Law § 5-322.1 bars enforcement of that provision in their contract. We hold that the indemnification agreement is enforceable under these circumstances, in which there has been no finding of negligence on the part of the general contractor, and therefore affirm the order of the Appellate Division.

I

Plaintiff Paul Brown was an employee of Central Furring & Dry Wall Company, a subcontractor working on the lobby/atrium of an office building under construction in Manhattan. He was injured when the scaffold on which he was standing collapsed. The building was owned by defendant Two Exchange Plaza Partners who hired defendant George A. Fuller Company as general contractor. Fuller in turn subcontracted with Heydt Contracting Corporation for erection of the scaffold, to be used by all of the subcontractors in the lobby/atrium, and with A & M Wallboard Company to erect the walls and ceilings of the building. A & M hired plaintiff's employer to install the suspension system for the ceiling. The present dispute concerns the indemnity clause in the contract between Fuller and A & M.

Plaintiffs commenced this action against Fuller and Two Exchange Plaza Partners seeking to recover for Brown's injuries and his wife's derivative damages. Fuller impleaded Heydt, A & M and Central Furring and those third party defendants asserted cross-claims against each other and counterclaims against Fuller and Two Exchange Plaza.[n 1] The evidence at trial failed to establish why the scaffold collapsed. Nonetheless, at the close of the evidence, the court directed a verdict against Fuller based on Labor Law § 240(1) and submitted the question of damages to the jury.

Fuller then moved for a directed verdict on its third-party claims against Heydt, A & M and Central Furring contending that each was liable to it as a statutory agent under Labor Law § 240(1), that each was negligent and thus liable to it for contribution, and that Heydt and A & M were liable to it under indemnification clauses in their subcontracts. The trial court ruled that none of the third party defendants were Fuller's statutory agents and dismissed those claims. It dismissed Fuller's claims for contribution against A & M and Central Furring, holding that there was no evidence of negligence on their part to submit to the jury. It submitted the question of Heydt's negligence for the jury and reserved decision on Fuller's claim for indemnification from A & M and Heydt.

In submitting the question of Heydt's negligence to the jury, the court denied Heydt's request to charge the jury that fault could be apportioned between Fuller and Heydt and instructed it to render an "all or nothing" verdict. The jury returned a verdict against Fuller in the amount of $2,350,000 for plaintiff and $500,000 for his wife.[n 2] It found that Heydt was not negligent and, therefore, not liable to Fuller. The court then took under advisement the question previously reserved, Fuller's right to judgment against A & M and Heydt based on the contractual indemnity provisions in their respective contracts, and directed the parties to prepare written submissions.[n 3] It subsequently denied the motion, holding Fuller's application untimely, but stated its belief that indemnity was not available unless the subcontractor was "in some way negligent" and that in any event the clause was unenforceable under General Obligations Law § 5-322.1 because Fuller was liable under Labor Law § 240(1).

Only Fuller appealed. The Appellate Division found the motion for indemnification timely and modified Supreme Court by awarding Fuller judgment over against A & M. The court reasoned that A & M's contractual indemnification liability encompassed the situation here, where Fuller was sued by an employee of A & M's subcontractor for injuries suffered while performing A & M's work. It held further that General Obligations Law § 5-322.1 did not preclude enforcement of the indemnification clause even though A & M was not negligent and Fuller was liable under Labor Law § 240(1). The court affirmed the remainder of Supreme Court's judgment, rejecting Fuller's claim for indemnification from Heydt and A & M's claims that it was entitled to indemnification from Central Furring and that there should be a new trial on damages. We now affirm.

II

The indemnification clause in the contract between Fuller and A & M is written in broad terms. In it, A & M agreed to assume liability incurred by Fuller for personal injuries "or any other claim arising out of, in connection with or as a consequence of the performance of the Work and/or any acts or omission of the Subcontractor or any of its...subcontractors..." (emphasis added). Thus, A & M was to indemnify Fuller in either of two situations: (1) where a claim arose out of, in connection with or as a consequence of the performance of A & M's work (see, O'Connor v Serge Elevator Co., 58 NY2d 655, 657) or (2) where a claim arose out of the "acts or omission[s]" of A & M. Manifestly, the purpose of the clause was to broaden A & M's liability under common law rules of implied indemnity (cf. Mas v Two Bridges Associates, ___NY2d___, dec. 5/3/90; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 567-568). It provides for indemnification when the claim arises out of the subcontractor's work even though the subcontractor has not been negligent. By its terms the clause applies in this case in which plaintiff, an employee of the subcontractor hired by A & M, was injured while performing work called for in A & M's contract with Fuller. Therefore, although there is no evidence of negligence on A & M's part, the indemnification agreement requires A & M to indemnify Fuller (see, Walsh v Morse Diesel, Inc., 143 AD2d 653, 654-655).

III

A & M contends, nonetheless, that the indemnification clause is unenforceable because of the provisions of General Obligations Law § 5-322.1. That section declares void agreements purporting to indemnify contractors against liability for injuries "contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part...."[n 4] A & M argues that Fuller's liability under Labor Law § 240(1) is, for purposes of General Obligations Law § 5-322.1, the legal equivalent of a finding of negligence and bars indemnification here. We disagree.

The legislative purpose underlying Labor Law § 240(1) was to place "'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor'" (Bland v Manocherian, 66 NY2d 452, 459, quoting 1969 NY Legis Ann, at 407) instead of on workers, who "are scarcely in a position to protect themselves from accident" (Koenig v Patrick Constr. Corp., 298 NY 313, 318). To that end, the Legislature determined that owners or contractors shall be liable for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure. Liability is not predicated on fault: it is imputed to the owner or contractor by statute and attaches irrespective of whether due care was exercised and without reference to principles of negligence (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521-522; Crawford v Leimzider, 100 AD2d 568, 569). A violation of the statute is not the equivalent of negligence and does not give rise to an inference of negligence.

During trial Heydt, A & M and Central Furring had the opportunity, and every incentive, to defend themselves against Fuller's claims by presenting evidence of Fuller's negligence. They failed to establish a jury question on that issue, however, and the cause of the accident was not resolved. Liability was imposed on Fuller only because of the absolute liability provisions of Labor Law § 240(1). Without a finding of negligence on the part of Fuller, General Obligations Law § 5-322.1's prohibition against indemnifying a contractor for its own negligence is inapplicable (see, Walsh v Morse Diesel, 143 AD2d 653, 655, supra) and Fuller is entitled to judgment over against A & M under the terms of their agreement.[n 5]

The result is consistent with the purpose and history of General Obligations Law § 5-322.1 and our prior holdings. The section was enacted in 1975 to prevent a practice prevalent in the construction industry of requiring contractors and subcontractors to assume liability by contract for the negligence of others. The Legislature believed that such "coercive" bidding requirements restricted the number of contractors able to obtain or afford the necessary hold harmless insurance and that it unfairly imposed liability on a contractor or subcontractor for the fault of others over whom it had no control. Moreover, such insurance raised the costs of construction unnecessarily, since the cost of the insurance was added to the bid price, and it also resulted in double coverage in many cases by requiring both hold harmless insurance and protective liability insurance (see, mem of Assemblyman Brown, NY Legis Ann, 1975, at 311; and cf. Kinney v Lisk, ___NY2d___, dec. herewith).

As originally enacted, the statute provided that any agreement in a construction contract "purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee...is against public policy and is void and unenforceable" (emphasis added). In Quevedo v City of New York (56 NY2d 153), we held that since the statute spoke in terms of "sole negligence", indemnification clauses in construction contracts were invalid only to the extent they purported to indemnify a party for damages it alone had caused. Nothing prevented indemnification in cases of joint fault (id. 56 NY2d at 156; see also, County of Onondaga v Penetryn Systems, 84 AD2d 934, 935, affd 56 NY2d 726).

In 1981 the Legislature amended section 5-322.1 to prohibit indemnity agreements in which owners or contractors sought to pass along the risks for their own negligent actions to other contractors or subcontractors, even if the accident was caused only in part by the owner's or contractor's negligence (see, mem of Assemblyman Goldstein in support of the proposed amendment, 1981 Legis Ann at 502). Thus, the 1981 amendment eliminated the "sole negligence" language and substituted a prohibition on agreements to indemnify for injuries "caused by...negligence of the promisee...whether such negligence be in whole or in part" (General Obligations Law § 5-322.1).

Because there was no evidence of any fault on the part of Fuller in this case, neither the wording nor intent of the statute is violated by allowing it to allocate responsibility for this unexplained accident through an indemnification provision. Nor will the decision here encourage carelessness by contractors, as A & M implies, because a contractor who is guilty of negligence will be barred from recovering contractual indemnity by virtue of the General Obligations Law provision.

IV

A & M argues further that if it is held liable to Fuller for indemnification, Central Furring should be held answerable to it under the indemnification clause in their subcontract. We agree with the Appellate Division's determination that the clause does not apply under these facts. Since there is no evidence of actual negligence on the part of Central Furring, as required under the indemnification agreement between the parties, the clause does not apply.

We have considered A & M's remaining arguments and conclude they are without merit.

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

F O O T N O T E S

1. The action against Two Exchange Plaza Partners was discontinued prior to trial.

2. Fuller eventually settled the plaintiffs' claims for $1,243,855.66 without the concurrence of the third party defendants.

3. The clause in its entirety provides:

Subcontractor hereby agrees, to the extent permitted by law, to assume the entire responsibility and liability for and defense of and to pay and indemnify the Owner and Contractor against any loss, cost, expense, liability or damage and will hold each of them harmless from and pay any loss, cost, expense, liability or damage (including, without limitation, judgments, attorney's fees, court costs and the cost of appellate proceedings), which the Owner or Contractor incurs because of injury to or death of any person or on account of damage to property, including loss of use thereof, or any other claim arising out of, in connection with, or as a consequence of the performance of the Work and/or any acts or omission of the Subcontractor or any of its officers, directors, employees, agents, subcontractors or anyone directly or indirectly employed by Subcontractor for whom it may be liable as it relates to the scope of this Contract, whether such injuries to person or damage to property are due to any negligence of the Owner, the Contractor, its or their employees or agents or any other person. Subcontractor will purchase and maintain such insurance as will protect it including contractual coverage (emphasis added).

4. General Obligations Law § 5-322.1 provides in relevant part:

"A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, * * * purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable; * * *"

5. A & M claims a new trial is required to decide Fuller's negligence but we agree with the Appellate Division that to the extent General Obligations Law § 5-322.1 calls Fuller's negligence into issue, a new trial is not needed to resolve it because Fuller's negligence was litigated fully and the accident remains unexplained.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs. Opinion by Judge Simons. Chief Judge Wachtler and Judges Kaye, Alexander, Titone, Hancock and Bellacosa concur. chop_here="076_0215.htm" Kinney v. G. W. Lisk Co., 76 N.Y.2d 215 (1990)

CALVIN W. KINNEY ET AL., PLAINTIFFS, v. G. W. LISK COMPANY, INC. ET AL., THIRD-PARTY RESPONDENTS, v. HUDSON STEEL FABRICATORS & ERECTORS, INC., THIRD-PARTY APPELLANT.

76 N.Y.2d 215, 556 N.E.2d 1090, 557 N.Y.S.2d 283 (1990).
June 7, 1990

4 No. 123
Decided June 7, 1990

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Bohdan Wenglowskyj, Marcella Seaberg, Rochester, for third-party Appellant.
Glen E. Pezzulo, Audrey P. Peartree, Rochester, for third-party Respondents.

PER CURIAM

Cromwell Construction, Inc., a general contractor, hired Hudson Steel Fabricators & Erectors, Inc., to perform certain work on a building project on property owned by G.W. Lisk Co., Inc. After an employee of Hudson suffered injuries on the job and obtained a settlement against Cromwell and Lisk, a jury apportioned liability in negligence against Cromwell (12 percent) and Hudson (88 percent). The trial court granted summary judgment to Cromwell in its third-party action against Hudson on the ground that Hudson had failed to procure insurance coverage for Cromwell against personal injury claims as the two had agreed in their subcontract. On Hudson's appeal, the Appellate Division affirmed, holding that the contractual provision requiring Hudson to maintain insurance for Cromwell did not violate General Obligations Law § 5-322.1. We agree.

Paragraph 6.4 of the subcontract between Cromwell and Hudson provides that the "Subcontractor [Hudson] shall maintain such insurance policies * * * as will protect both the Contractor [Cromwell] and the Subcontractor [Hudson] * * * from claims for damages because of bodily injury * * * which may arise both out of and during the performance under this agreement or after completion thereof (emphasis added)". We have previously upheld similar agreements against challenges that they violate other sections of the General Obligations Law which, like section 5-322.1, prohibit agreements intended to free certain promisees from liability for their own negligence (see e.g., Board of Education v Valden Assocs, 46 NY2d 653, 657 [building owner's agreement to obtain liability coverage for contractor and subcontractors not violative of GOL § 5-323]; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 160 [commercial tenant's agreement to maintain liability insurance for landlord not violative of GOL § 5-321]). For reasons analogous to those that governed our decisions in those cases, we uphold the agreement at issue here.

General Obligations Law § 5-322.1 renders void and unenforceable any provision or agreement in connection with building construction "purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injuries to persons * * * contributed to, caused by or resulting from the negligence of the promisee, his agents or employees (emphasis added)". By its terms, the statute addresses only agreements to indemnify or hold harmless. It makes no reference to agreements to purchase or maintain insurance such as that contained in the subcontract here, and there is no basis for construing the statute's narrow and unambiguous prohibition to cover such agreements. An agreement to procure insurance is not an agreement to indemnify or hold harmless, and the distinction between the two is well recognized (see, Roblee v Corning Com. Col., 134 AD2d 803 lv denied 72 NY2d 803; Grant v U.S., 271 F2d 651, 655-656 [2nd Cir]). Whereas the essence of an indemnification agreement is to relieve the promisee of liability, an agreement to procure insurance specifically anticipates the promisee's "continued responsibility" for its own negligence for which the promisor is obligated to furnish insurance (Hogeland v Sibley, Lindsay & Curr, Co., supra at 161; see also, Board of Educ v Valden Assocs, supra at 657; Appleman, 4 Insurance Law and Practice § 2261).

Moreover, this particular distinction is what renders indemnification, but not insurance-procurement, agreements violative of the public policies underlying General Obligations Law § 5-322.1. While an agreement purporting to hold an owner or a general contractor free from liability for its own negligence undermines the strong public policy of placing and keeping responsibility for maintaining a safe workplace on those parties (see e.g., Labor Laws §§ 200, 240), the same cannot be said for an agreement which simply obligates one of the parties to a construction contract to obtain a liability policy insuring the other (see, Board of Educ. v Valden Assocs., supra at 657; Hogeland v Sibley, Lindsay & Curr Co., supra at 161).

Indeed, the legislative history of section 5-322.1 unambiguously reveals that insurance-procurement agreements were intended to survive the statute's proscriptions. The Legislature's particular purpose in enacting the statute was to invalidate "so-called 'broad form hold-harmless' clauses", then prevalent in the construction industry, which "caus[ed] contractors and subcontractors to assume liability for the negligence of others" (Assembly Sponsor's Supporting Memorandum, Assembly Bill A 862-B, L 1975, ch 408 [emphasis added]). The Legislature anticipated that the statute would effect substantial savings in the cost of construction projects specifically because it had found that liability protection insurance, which contractors and subcontractors could still be required to procure, was considerably less expensive than hold-harmless coverage, which they would no longer need to purchase (id.; Senate Sponsor's Supporting Memorandum, Senate Bill S. 946-B [A. 862-B]; see also, New York State Thruway Authority, Letter in Opposition, June 9, 1975; Metropolitan Thruway Authority, Letter in Opposition, June 20, 1975; cf. Brown v Two Exchange Plaza, __NY2d__, dec. herewith). Hence, the Legislature not only distinguished between hold-harmless and insurance-procurement agreements, but also fully expected that the latter would continue to be incorporated into construction contracts.

Finally, because Hudson breached its agreement to procure liability insurance covering Cromwell, it is liable for the resulting damages, including Cromwell's liability to plaintiff (see, Roblee v Corning Com. Col., supra at 805; Appleman, 4 Insurance Law and Practice, § 2269; Robinson v Janay, 253 A2d 816, 819 [NJ]).[n 1]

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

F O O T N O T E

1. To the extent that Patenude v General Elec. Co. (147 AD2d 335) is to the contrary, it should not be followed.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs. Opinion Per Curiam. Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock and Bellacosa concur. chop_here="076_0747.htm" Matter of Lionel F. (Anonymous), 76 N.Y.2d 747 (1990)

IN THE MATTER OF LIONEL F. (ANONYMOUS), APPELLANT.

76 N.Y.2d 747, 558 N.E.2d 30, 559 N.Y.S.2d 228 (1990).
June 7, 1990

2 No. 117
Decided June 7, 1990

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

Henry Weintraub, Lenore Gittis, NY Legal Aid, for Appellant. Victor A. Kovner, NYC Corporation Counsel (Patrick L. Taylor, Pamela Seider Dolgow of counsel) for Respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

Respondent, a juvenile, was charged with acts which, if committed by an adult, would have constituted the crimes of criminal possession of stolen property in the fourth degree, attempted grand larceny in the fourth degree, criminal mischief in the fourth degree, unauthorized use of a vehicle in the third degree, and possession of burglar's tools. At the fact-finding hearing held October 14, 1987, after the Presentment Agency rested its case, respondent moved to dismiss the petition for failure to establish prima facie a requisite element of the offense charged, i.e., that the car in which respondent was found was stolen. Family Court reserved decision and recessed for a few minutes. Upon reconvening, the court orally granted respondent's motion to dismiss on four counts, and reserved decision on the fifth, possession of burglar's tools. In doing so, it stated that but for the Presentment Agency's failure to prove the car was stolen it would have denied the motion in its entirety because all other elements of a prima facie case had been established. The court then recessed for lunch. After lunch the court denied respondent's motion to dismiss the fifth count. It also entertained the Presentment Agency's further argument that it reconsider its ruling with respect to the other four counts. Upon reconsideration, the court vacated its earlier ruling and reserved decision as to all counts in order to afford the parties an opportunity to submit written briefs on the issue.

On November 6, the court granted respondent's motion to dismiss as to the first (criminal possession of stolen property) and second (attempted grand larceny) counts, but let stand the lesser included charge of attempted larceny as to the second count. The court invited respondent to proceed with his case but when he rested without calling witnesses, it found him guilty of the charges of criminal mischief, unauthorized use of a vehicle and possession of burglar's tools.

The Appellate Division held respondent had not been placed twice in jeopardy by Family Court's reconsideration and vacatur of its original decision to dismiss certain counts. It modified the fact-finding order, however, by deleting the finding that respondent committed an act which, if committed by an adult, would have constituted the crime of criminal mischief in the fourth degree. While we agree with the Appellate Division that Family Court's actions did not expose respondent to double jeopardy, we do so for different reasons.

There is no constitutional impediment to a court's power to modify its decisions, provided such a modification does not subject an individual to double jeopardy (United States v LoRusso, 695 F2d 45, 54 [2nd Cir], cert denied 460 US 1070). In this case the court's actions did not result in a violation of respondent's constitutional rights. At the time the court vacated its earlier ruling, the proceeding was still pending before it. The court had not decided respondent's motion in its entirety. It entertained reargument while part of the motion to dismiss remained under advisement and before the evidence was closed. Under the circumstances, the court's original decision was not an acquittal for purposes of double jeopardy and its immediate vacatur of its earlier ruling did not subject respondent to a second trial (United States v LoRusso, supra, at 53-54; Rowe v Grizzard, 591 F Supp 389).

In reaching our conclusion, we do not suggest that the entry of a formal order was necessary to terminate the prosecution but merely emphasize the inchoate nature of the court's decision, made in the context of a continuing proceeding, and without the Presentment Agency offering additional evidence after the court vacated its dismissal (see, People v Tardbania, 130 AD2d 954, affd on other grounds 72 NY2d 852). Manifestly, the action of the trial court did not implicate those principles underlying the Double Jeopardy Clause which protect an individual from being subjected to "embarrassment, expense and ordeal and compel[led] * * * to live in a continuing state of anxiety and insecurity" (Green v United States, 355 US 184, 187-188).

Respondent relies upon Smalis v Pennsylvania (476 US 140) but that matter involved a prosecutor's appeal from an order of dismissal in a trial long since concluded. The order had been entered and was clearly final. The Supreme Court held that reversal and retrial were foreclosed by double jeopardy. In this case, in which the court's original ruling was followed promptly by its vacatur and the continuation of proceedings, we conclude that respondent's right to be free from double jeopardy was not violated.

ALEXANDER, J. (dissenting in part):

I vote to modify the Appellate Division order by vacating the adjudication on the fourth count in the petition in this juvenile delinquency proceeding because the further prosecution of that count, as well as the other counts dismissed by the trial court for legal insufficiency, was prohibited by the Double Jeopardy Clause. The rule implicit in the majority writing hinges this constitutional protection upon the formalism of entry of the order of dismissal and thereby elevates form over substance and, as occurred in this case, permits the presentment agency to reargue a factual adjudication in respondent's favor. As a result the majority has allowed precisely the evil which the Double Jeopardy Clause was intended to prevent. Therefore I respectfully dissent.

I

The constitutional prohibition of double jeopardy protects individuals from repeated attempts by the State to obtain a conviction for the same offense (Grady v Corbin, __ US __ [Decided May 29, 1990]; Green v United States, 355 US 184, 187). The prohibition prevents the State, with its greater resources and power, from subjecting an accused, as a result of such repeated efforts, "to embarassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty" (Green v United States, 355 US at 187-188, supra; see also Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St L J 799, 804-805 [describing other policies served by the Clause]). These concerns are so valued in our jurisprudence that an acquittal, even if erroneous, is an absolute bar to subsequent factfinding proceedings on the same offense (United States v Ball, 163 US 662).

Unquestionably, a dismissal for legal insufficiency is an "acquittal" for the purposes of double jeopardy and thus bars both a second trial or "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the crime charged" (Smalis v Pennsylvania, 476 US 140, 145-146, quoting United States v Martin Linen Supply Co, 430 US 564, 570; see also Sanabria v United States, 437 US 54; Burks v United States, 437 US 1; compare United States v Scott, 437 US 82 [dismissal on legal grounds unrelated to the sufficiency of the evidence is not an acquittal for purposes of double jeopardy]; Matter of Pastrana v Baker, 55 NY2d 315). In Smalis, the Supreme Court concluded that such a dismissal is an adjudication of the facts in the defendant's favor and therefore an acquittal which terminated jeopardy (Compare Richardson v United States, 468 US 317 [hung jury does not terminate jeopardy]). In so holding, the Court specifically rejected the State's argument that jeopardy was not terminated by a ruling made at the close of the prosecution's case because resumption of the trial proceedings would constitute only "continuing jeopardy" (476 US at 145, supra).

Despite the clear import of Smalis, the majority seeks to avoid the application of that rule to this case by characterizing Family Court's dismissal of the first four counts of the petition as "inchoate" and not "clearly final" (Memorandum at 3,4). Despite its disclaimer, the Court's decision appears, ultimately, to turn on the fact that Family Court's order of dismissal had not been entered before it was vacated (Memorandum at 4). The record clearly demonstates, however, that Family Court rendered an adjudication of the facts in respondent's favor and the only distinction between this case and Smalis is the fact that Family Court's order was not entered. That distinction, in my view, cannot be material because a rule which makes the protections of the Double Jeopardy Clause dependent upon the entry of the order of dismissal is inconsistent with the Supreme Court's double jeopardy jurisprudence and signifcantly undermines the policies served by the Clause.

II

I turn first to the majority's characterization of Family Court's order as "inchoate' and not "clearly final", a characterization which, in my view, finds no support in the record.

After the presentment agency rested its case, respondent moved to dismiss all five counts of the petition, arguing that the presentment agency had failed to establish a prima facie case because it offered no proof that the car in which respondent was apprehended was the same car owned by the complainant. The presentment agency opposed the motion, arguing that the complainant's testimony as to where her car was parked and the police testimony as to the location and type of car in which respondent and his alleged accomplices were apprehended "would provide such link to the respondents and the owner of the car to establish that the respondents were in [sic] attempting to steal the car owned by [the complainant]." After a brief recess, Family Court unequivocally granted the motion as to the first four counts, stating:

The Court has made notes of the testimony of the police officer and the testimony of the owner of the car. There is not a sufficient indicia of the incidentals in terms of the description of the vehicle by the police officer that would establish that the vehicle as observed by the police officer is in point and fact the same vehicle as identified by the complaining witness, the owner of the vehicle. For all the Court knows in terms of this record they are different vehicles. There is not sufficient indicia of the nature of the vehicle. I would point out, for example, there is no description as far as the Court can recollect by the police officer as to the make, model, or year of the vehicle in question. There is no testimony by the police officer as to license plate number. There is no testimony as to vehicle identification number by the police officer. There is also insufficient indicia that the vehicle that the police officer observed the respondents in is in point of fact the vehicle as testified to by the owner of the vehicle as the vehicle that she did not give respondents permission to be in that vehicle, [a] 1981 Mazda.

Accordingly, the prima facie motion join[ed] in by respondents' counsel is granted. The presentment agency has an exception on the record and if appeal was taken and they say this Court was insufficient and to go to me as the finder of fact they will reserve it. But I can only go on the record as made. I would simply note for the record the record is what the Court must go by. I cannot, since I was not called to take judicial notice of anything else or fact to hoard [sic] the record in which facts were taken and since the presentment agency rested I cannot make out the presentment agency's case for them.

* * * *

I find [sic] the first four counts of the petition they failed to make out a prima facie case. (Deft's Appx at 61-64).

While the court initially suggested that the motion was granted as to all five counts, it immediately clarified its ruling to reserve decision on the fifth count until after lunch.

After the luncheon recess, the court repeated its ruling dismissing the first four counts, and denied the motion with respect to the fifth count. Nevertheless, on the presentment agency's motion, Family Court then granted "reargument", and permitted the agency to introduce additional legal authority for its position that the circumstantial evidence introduced on the agency's case was legally sufficient to establish a prima facie case. That Family Court viewed its original order of dismissal as completed is evident from the fact that the court deemed it necessary to "vacate[] its ruling on [the] prima facie motion and reinstate[] the prima facie motion on behalf of both respondents and reserve[] decision" (Deft's Appx at 69). The court then set a three week adjourned date "for continued factfinding and resolution of the prima facie motion". On the adjourned date, after reviewing briefs submitted by the presentment agency and by respondent, the court again decided the motion to dismiss for failure to establish a prima facie case -- the first two counts of the petition, charging criminal possession of stolen property and attempted grand larceny were dismissed, but the motion was denied as to the third, fourth and fifth counts, charging, respectively, criminal mischief, unauthorized use of a vehicle, and possession of burglar's tools. The court also denied the motion to dismiss the act of attempted petty larceny which is a lesser included act of the grand larceny count. Respondent has appealed Family Court's determination that he committed the acts described in the fourth and fifth counts of the petition.

In light of this record, there can be no question that Family Court, which was also the trier of fact, rendered a factual adjudication in respondent's favor. The court intentionally and unequivocally dismissed the first four counts of the petition because, in its view, the evidence was legally insufficient to make out the presentment agency's case. This oral order was in no sense "inchoate" and the fact that it was rendered at the close of the presentment agency's case and therefore "in the context of a continuing proceeding" (Memorandum at 4) is irrelevant for the purposes of double jeopardy (Smalis v Pennsylvania, 476 US at 145, supra). Nor does the applicability of the protections of the Double Jeopardy Clause turn upon the timing of the challenge to the acquittal. It is of no moment that the presentment agency sought reargument of the dismissal order after a relatively brief luncheon recess. The court's order of dismissal either was or was not an "acquittal" at the time it was made, notwithstanding what happened afterwards. Similarly, the fact that in this case, the presentment agency did not introduce any new evidence after the issuance of the order of dismissal (Memorandum at 4) also is not dispositive because reconsideration of the motion to dismiss was itself subsequent factfinding. Thus, the only possibly meaningful distinction between this case and Smalis is the fact that unlike the order in Smalis, Family Court's order of dismissal was not formally entered before it was vacated.

III

The issue therefore, is whether application of the Supreme Court's holding in Smalis v Pennsylvania (supra) that a dismissal for legal insufficiency is an acquittal barring any further factfinding proceedings is dependent upon whether the order of dismissal was formally entered. Although it contends otherwise, the majority appears to have concluded that formal entry of the order is necessary to implement the protections of the Double Jeopardy Clause,[n 1] as is evident from the reliance placed upon United States v LoRusso (695 F2d 45 [2d Cir], cert denied 460 US 1070 [prior to entry of judgment and before discharge of the jury, oral dismissal was not an acquittal for purposes of double jeopardy]) and Rowe v Grizzard, 591 F Supp 389 [following LoRusso]). I disagree. In Smalis v Pennsylvania (supra), the issue of whether a dismissal for legal insufficiency is an "acquittal" reached the Court in the context of whether the prosecution could appeal from such an order of dismissal. While the challenged order in that case had been entered, that fact was not material to the Court's decision. Rather, the Court emphasized that a ruling that the State's evidence is legally insufficient is an "acquittal" because it is an adjudication of the facts and therefore, like a jury verdict of acquittal, the dismissal terminates jeopardy and bars any subsequent factfinding proceedings on the same offense (Smalis v Pennsylvania, 476 US at 144-145, supra). Significantly, the Court's decision gives no indication that an acquittal by reason of dismissal is to be treated differently than any other acquittal.

Historically, it is in the area of acquittals that the Supreme Court has most stringently applied the mandates of the Double Jeopardy Clause. Thus, unlike double jeopardy issues arising from convictions or declarations of mistrial prior to verdict, where a criminal defendant has been acquitted, the Court has repeatedly refused to balance countervailing State interests in determining the scope of the protections of the Clause (see generally Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St. L. J. 799). It has long been the law that the Double Jeopardy Clause is an absolute bar to further factfinding proceedings after an acquittal (United States v Ball, 163 US 662, 671). This is true whether the acquittal is by jury verdict (id.), verdict rendered at the conclusion of a bench trial (Kepner v United States, 195 US 100), directed verdict in a jury trial (Green v United States, 355 US 184; Fong Foo v United States, 369 US 141) or, dismissal at the close of the People's evidence for failure to establish a prima facie case (Smalis v Pennsylvania, supra). The policies underlying this rule are so cherished that even an acquittal "based upon an eggregiously erroneous foundation" bars subsequent factfinding proceedings (Fong Foo v United States, 369 US at 143, supra).

Moreover, the Court has repeatedly held of entry of judgment of acquittal is unnecessary for jeopardy to be complete. In United States v Ball (163 US at 671, supra), the Court held that a jury verdict of acquittal barred retrial notwithstanding that the verdict had not been reduced to judgment, stating:

The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy and thereby violating the Constitution. However it may be in England, in this country a verdict of acquittal, although not followed by any judgment, is a bar to subsequent prosecution for the same offense.

The Court reiterated this rule in the context of a verdict orally rendered, but not entered, in a non-jury trial:

It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered, although no judgment be entered on the verdict, and it was found upon a defective indictment (Kepner v United States, 195 US at 130, supra [emphasis added]).

Since a dismissal for legal insufficiency is every bit as much an acquittal as a verdict of acquittal, there is no principled basis for making the protections of the Double Jeopardy Clause dependent upon a formal entry of judgment of dismissal where such entry is not required for verdicts of acquittal. The fact that review of a dismissal does not neccessitate new trial, but rather a continuation of a trial already begun is answered by the Supreme Court's holding in Smalis; the Double Jeopardy Clause bars postacquittal factfinding proceedings, whether those proceedings be a second trial or simply the resumption of a trial already commenced (476 US at 145-146, supra). Accordingly, I agree with those courts holding that the Double Jeopardy Clause bars reconsideration of a trial order of dismissal, whether or not the order has been formally entered (People v Lerner, 128 AD2d 641; People v Warren, 80 AD2d 905; Pugh v State, 271 Md 701, 319 A2d 542 [Md Ct App]; State of new Jersey v C.K., 198 NJ Super 290, 486 A2d 1284 [App Div]; see also Matter of Frank K., 87 AD2d 1003).

Additionally, the facts of this case illustrate the fallacy of imposing a technical "entry" requirement before giving an acquittal by dismissal its full constitutional effect. Notwithstanding that the presentment agency had rested its case and that Family Court had intentionally and unequivocally ordered the dismissal of the first four counts against petitioner, he was subjected to a second attempt to convict him for those same offenses. The presentment agency had a full opportunity first to present its evidence and second to oppose respondent's motion to dismiss. If it sensed that it might not succeed on the motion, the agency could easily have sought an adjournment to conduct further research or otherwise shore up its argument. The agency failed to do so and yet had an opportunity to reargue the motion to dismiss both after a luncheon recess and, ultimately, after a three week adjournment during which it was able to find more authority supporting its original position. It is precisely this evil of repeated efforts to obtain a conviction that the Double Jeopardy Clause prohibits (Green v United States, 355 US at 187-188, supra).

Moreover, the pernicious nature of the rule implicit in today's decision will, I fear, be even more evident in future cases. Here, of course, the presentment agency's motion for reargument came within a relatively short time after the court issued is dismissal order. If however, as the majority apparently concludes, such an order was not an "acquittal" at the time it was rendered, the presentment agency, or any prosecuting authority in a criminal case, would be free to seek reargument of a dismissal weeks and even months later, so long as the order had not been entered. This concern cannot be answered by pointing to the prompt nature of the presentment agency's challenge in this case. Simply put, a dismissal order intentionally and unequivocally issued either is or is not an acquittal at the time it is made, notwithstanding the timing of a subsequent challenge.

Finally, there is no policy to be served by adopting such a grudging construction of the Double Jeopardy Clause. While trial courts certainly have the power to correct or modify their rulings, that power is limited by the Double Jeopardy Clause as well as our own jurisprudence (see e.g., People v Carter, 63 NY2d 530 [trial court who renders guilty verdict after nonjury trial is without power to reassess the facts and change the verdict]). Furthermore, in this case, as in the case of most rulings on defense motions to dismiss for failure to establish a prima facie case, the concerns and consequences of the Double Jeopardy Clause would not even be implicated if only the prosecuting authority and the trial judge had exercised a bit more prudence. As already noted, the presentment agency could have sought an adjournment to better prepare its opposition to defendant's motion before the court rendered a final decision. When it was apparent that the trial court might grant the motion, the court could have easily adjourned the matter on its own, to seek more complete argument of the motion and to deliberate more thoroughly before granting the motion, given the double jeopardy consequences of such a ruling. In the case of jury trials, of course, the preferred practice of reserving on the motion until after the jury verdict avoids double jeopardy concerns entirely (United States v Wilson, 420 US 332; People v Key, 45 NY2d 120). Thus a bright-line rule that an order of dismissal for legal insufficiency constitutes an acquittal barring subsequent factfinding serves the policies underlying the Double Jeopardy Clause, provides guidance to the courts below and is easily administered. The technical rule implicit in the Court's decision today has none of those virtues.

Accordingly, I dissent.

F O O T N O T E

1. This conclusion is not only contrary to Supreme Court caselaw, as discussed infra, it is inconsistent with our decisions holding that the People's time to appeal from a trial court's oral order modifying a defendant's conviction runs from the time the order is made and sentence immediately imposed thereon, rather than the time of entry of the order (see People v Coaye, 68 NY2d 857; see also People v Singleton, 72 NY2d 845).

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Order affirmed, without costs, in a memorandum. Chief Judge Wachtler and Judges Simons, Kaye, Hancock and Bellacosa concur. Judge Alexander dissents in part and votes to modify in an opinion in which Judge Titone concurs. chop_here="076_0446.htm" People v. Ortiz, 76 N.Y.2d 446 (1990)

THE PEOPLE &C., RESPONDENT, v. ROJELIO ORTIZ, APPELLANT.

76 N.Y.2d 446, 560 N.E.2d 162, 560 N.Y.S.2d 186 (1990).
June 7, 1990

1 No. 120
Decided June 7, 1990

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Carol Grumbach, Philip L. Weinstein, NY Legal Aid, for Appellant.
Robert T. Johnson, DA, Bronx County (Tierney M. Carlos, Susan L. Valle, of counsel) for Respondent.

ALEXANDER, J.:

Defendant, convicted of criminal sale of a controlled substance in the third degree, assigns error to the trial court's refusal to instruct the jury as to the agency defense. We conclude that such instruction was not warranted because no reasonable view of the evidence would support a finding that defendant, who directed a potential purchaser to a seller of narcotics, was acting as an agent of that purchaser.

Defendant was arrested in the course of a "buy and bust" operation conducted on Morris Avenue in the Bronx on January 6, 1986. According to the trial testimony, Undercover Officer Jacqueline Cortes approached defendant's co-defendant Salvador Cedano and asked for "coke". Cedano told her to "wait around" and entered an apartment building at 1921 Morris Avenue. While waiting, Officer Cortes struck up a conversation with a woman standing outside the building and learned the price of the cocaine. During this time, Cortes observed two or three people approach defendant, who was standing in front of the building a few feet away. Cortes testified that when individuals approached defendant, he would converse with them and point to the building; she could not, however, hear their conversations. Cortes and the woman from whom she had learned the price of the cocaine walked over to defendant and Cortes asked, in Spanish, for cocaine. According to Cortes, defendant said "go right in, go straight in" and pointed to the building. The other woman also asked for cocaine and was told to follow Cortes.

Cortes went into the front hallway of the building where four to six other individuals were standing in line waiting to purchase cocaine from Cedano. When it was her turn, Cortes purchased two vials of cocaine for ten dollars in pre-recorded buy money. Cedano gave the money to another man, who assisted in the sales and whom the police did not apprehend. After the purchase, Cortes left the building and radioed a description of Cedano and defendant to her back-up team. While waiting in front of the building for the back-up to arrive, Cortes watched defendant direct an unspecified number of people into the building. Cedano and defendant were subsequently arrested, but the pre-recorded buy money was not recovered. A small amount of marijuana and cocaine was found on defendant.

Defendant was tried on charges of possession and sale of controlled substances, but the possession counts were dismissed before the case was submitted to the jury. Supreme Court denied defendant's request for an instruction on the agency defense and defendant was convicted, on a theory of accessorial liability, of criminal sale of a controlled substance in the third degree (see Penal Law §§ 220.39[1]; 20.00). The Appellate Division affirmed the conviction without opinion and a Judge of this Court granted leave to appeal. We now affirm.

In reviewing defendant's request for an instruction on the agency defense, the trial court was required to view the trial evidence in the light most favorable to the defendant and to give the instruction if "some evidence, however, slight, [] support[s] the inference that the supposed agent was acting, in effect, as an extension of the buyer" (People v Arbigay, 45 NY2d 45, 55; see People v Padgett, 60 NY2d 142, 144; People v Roche, 45 NY2d 78, 86, cert denied 439 US 958; People v Watts, 57 NY2d 299, 301). Where, however, no reasonable view of the evidence supports a finding of the defense, the issue need not be submitted to the jury (People v Watts, 57 NY2d at 301, supra).

As we have often noted, the theory of the agency defense is that one who acts solely as an agent for the buyer of narcotics cannot be convicted of the crime of selling those narcotics, notwithstanding that the act of transferring drugs to another falls within the statutory definition of "Sell" (People v Lam Lek Chong, 45 NY2d 64, 72, cert denied 439 US 935; People v Arbigay, 45 NY2d at 53-54, supra; People v Sierra, 45 NY2d 56, 60; see Penal Law § 220.00[1]). This is because our penal statutes are directed primarily at the sellers rather than the buyers of narcotics and, in all but the largest sales, impose more severe penalties upon a seller of drugs than upon a buyer who possesses them (People v Lam Lek Chong, 45 NY2d at 72-73, supra; see generally, Penal Law article 220). The agency defense is consistent with the Legislative scheme because it requires that one who acts solely as an agent for a buyer of narcotics should incur no greater criminal liability than that of the buyer (People v Lam Lek Chong, 45 NY2d at 73-74, supra).

The agency defense is not susceptible of meticulous definition (People v Roche, 45 NY2d at 87 [Breitel, Ch J., Jones and Wachtler, JJ., concurring]) and whether a particular defendant has acted only as an agent for the buyer is a factual question for the jury, which may consider such factors as

the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant had drug dealings with this or other buyers and sellers, and, of course, whether the defendant stood to profit from the transaction (People v Lam Lek Chong, 45 NY2d at 75).

Thus the question of whether a defendant was entitled to an instruction on the agency defense turns on whether, under all the circumstances, the defendant can be said to have acted solely on behalf of the buyer such as to be a mere extension or instrumentality of the buyer.

Defendant argues that, viewed in the light most favorable to him, there is a reasonable view of the trial evidence to support the conclusion that he acted as an agent of the buyer by directing her to the seller of cocaine. He argues that he did not overtly peddle the cocaine or otherwise promote its sale, that there was no evidence that he profited from the transaction and that at best, the People's proof established only that he was familiar with a drug establishment in the neighborhood and good-naturedly provided a tip to the buyer.

Even this generous view of the trial evidence, however, does not permit the inference that defendant acted on behalf of the buyer as the buyer's agent. Defendant's only contact with the buyer was his response to a single question as to where to purchase cocaine; defendant concedes that he had no relationship with the buyer prior to directing her to the seller and had, in fact, provided the same service to several other potential buyers. Defendant did not procure the drugs for the buyer nor arrange or participate in the sale. Therefore, the agency instruction was properly denied.

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

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Order affirmed. Opinion by Judge Alexander. Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock and Bellacosa concur. chop_here="076_0758.htm" Segrue v. City of Schenectady, 76 N.Y.2d 758 (1990)

IN THE MATTER OF JAMES M. SEGRUE, RESPONDENT, v. CITY OF SCHENECTADY, NEW YORK, APPELLANT.

76 N.Y.2d 758, 558 N.E.2d 37, 559 N.Y.S.2d 235 (1990).
June 7, 1990

3 No. 131
Decided June 7, 1990

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

James W. Roemer, Jr., Victor M. DeBonis, Albany, for Appellant. Harold D. Gordon, Schenectady, for Respondent.

MEMORANDUM.

The order of the Appellate Division should be reversed and respondent's determination of dismissal reinstated.

In a prior article 78 proceeding challenging petitioner's dismissal from his position as purchasing agent for respondent City of Schenectady, the Appellate Division sustained respondent's determination that petitioner had improperly altered or permitted to be altered a bid for the purchase of City property (see Matter of Segrue v City of Schnectady, 132 AD2d 270). That court found substantial evidence to support the determination of the hearing officer, as adopted by respondent's Mayor, that a bid submitted by petitioner's friend in the amount of $55.21 had been deliberately altered to read $155.21, so that the friend would be the highest bidder for a particular auctioned item (id. at 275). The court annulled the other counts of misconduct sustained by the Mayor, however, and remitted the matter to the Mayor for imposition of an appropriate penalty. The Mayor subsequently rendered a determination reimposing the original penalty of dismissal and this article 78 proceeding ensued.

Contrary to petitioner's contention, the record reveals that the Mayor did not improperly base the challenged determination of dismissal on prior unestablished allegations of misconduct in petitioner's personnel file. The record indicates that the Mayor notified petitioner that she would consider his personnel file and also gave him an opportunity to respond to it (see Matter of Bigelow v Bd of Trustees, 63 NY2d 470). Nevertheless, although the Mayor did in fact review the file, her decision makes clear that it was the sustained count of misconduct and not any allegations in petitioner's personnel file that was the basis of her determination. The decision discusses the sustained count at length, making only passing reference to the personnel file, and noting that the fact that the prior allegations in the file were from administrators of petitioner's own political party refuted his claim that the current disciplinary proceeding was purely political.

Thus the only issue before us is the propriety of dismissal as a penalty for the one sustained count of misconduct. In this connection, judicial review of the Mayor's discretionary determination is limited to whether the penalty of dismissal was so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness (Matter of Garayua v New York City Police Dept, 68 NY2d 970, 972; Matter of Pell v Bd of Educ, 34 NY2d 222, 233). Petitioner's position accorded him unsupervised discretion in awarding public contracts of up to $5000, totalling in excess of $1,000,000 annually. Given the favoritism and breach of public trust involved, the imposed penalty is not shockingly disproportionate to petitioner's misconduct, and it therefore must be upheld.

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Order reversed, with costs, and the determination dismissing petititoner from his position reinstated in a memorandum. Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock and Bellacosa concur.