Almost 50 years have elapsed between my first and most recent appearance before the New York Court of Appeals and a recent LEXIS search shows I appeared in 117 cases in that court, arguing about 80 of them.

My maiden appellate argument was in 1963 in Seagirt Realty v. Chazanof.¹ Apart from nervousness I still feel before any argument, I was completely at ease standing at the lectern in that beautiful and familiar courtroom where I spent countless hours during the years I was a law clerk to Judge Charles Froessel, learning the fundamentals of appellate advocacy. The case allowed me to use what I had learned about the court's limited scope of review when confronted with affirmed findings of fact. They are binding upon it.²

In 1934, Jacob Landau, sole stockholder and alter ego of the plaintiff, caused it to convey certain property to his son, Alfred, without consideration, to fraudulently conceal it from creditors. In 1945, Jacob filed for bankruptcy, swearing he had no interest in real property. In 1950, Alfred, at his father's request conveyed the property, without consideration, to Jacob's son-in-law, defendant Chazanof, who orally promised to convey it to plaintiff. Defendant executed and delivered a deed to Jacob, which was not recorded and subsequently lost. When defendant refused to execute a replacement deed, plaintiff brought an action to impress a trust on the property and compel defendant to execute and deliver another deed.

Supreme Court entered judgment for plaintiff finding the lost deed had been executed and delivered by defendant and the doctrine of clean hands is limited to the transaction at issue. It stated:

The court will not refuse its aid to a man merely because he has been guilty at some previous time of misconduct unconnected with the matter in litigation. A court of equity is not an avenger at large.

In the instant case, if Jacob was defrauding creditors in 1934 or concealing assets in bankruptcy in 1945, he had already accomplished his purpose. The transfer to the defendant in 1950 was not made to defraud creditors and defendant cannot avoid fulfilling his obligations merely because Jacob may at some time some five to 16 years earlier have been guilty of a fraudulent scheme. The property did not become contraband so that Jacob could never deal with it again.³

A divided Appellate Division reversed on the law and the facts and dismissed the complaint, stating: "Equity will not afford relief where, as here, the real party in interest—the father, through the medium of his corporate entity—comes into court with unclean hands. Were a court of equity to do otherwise it would lend its aid in bringing a fraudulent scheme to fruition."⁴ The crucial finding, that defendant had executed and delivered a deed to Jacob which was not recorded and mislaid, was affirmed.

I was retained by plaintiff to take the case to the Court of Appeals and saw that the affirmed findings of fact allowed us to present the case without having to refer to the fraudulent conveyance. Plaintiff was simply asking the court to direct defendant to perform a ministerial act—execute and deliver a replacement deed. The majority, over two strong dissents agreed, stating:

When equitable relief is sought, not to enforce an executory obligation arising out of an illegal transaction, but to protect a status of legal ownership, wrongs done by Jacob Landau to creditors in respect of the property at some time prior to the acquisition of the title now in issue may not now be raised by this defendant to defeat otherwise available relief.⁵

In 1963, I also collaborated in writing the brief for appellant in People v. Post Standard,⁶ an important and novel freedom of press case in which the publisher of a daily newspaper in Syracuse, was indicted for criminal contempt of court for falsely publishing an alleged statement made by a person in a judicial proceeding in County Court. The statement was that a sergeant on the District Attorney's staff beat a man while another policeman put the barrel of a cocked gun in his ear. The indictment charged that the official minutes of the proceedings showed no accusations had been made concerning the sergeant. County Court found that, in order to constitute a crime under the statute, the publication must not only be false or grossly inaccurate but it must also intentionally assail the dignity and authority of the court. It sustained a demurrer dismissing the indictment.

While the indictment did not allege an intent to make a false or grossly inaccurate publication or to deny the dignity and authority of the court, the People argued that since the indictment was in the language of the statute, it was not susceptible to a demurrer. The Appellate Division agreed.

The Court of Appeals reversed. The majority noted that, "Ordinarily this is the rule…, but the rule is not fixed and invariable where circumstances dictate otherwise. The court found, "Mere errors in reporting, where no willfulness is alleged, are not usually considered a sound basis for contempt proceedings… The inaccuracy charged here would seem to fall within that classification."

In view of its reversal, the court did not "think it necessary to reach the issue of whether the decision below might be construed as an unjustified restriction on the freedom of the press." It made clear, however, that "if the views of the Appellate Division were to prevail such an issue would lurk in the far-reaching consequences of such a decision."

Criminal Appeals

My first criminal appeal was People v. LoCicero.⁷ The Court of Appeals assigned its former law clerks to represent indigent criminal defendants pro bono, and such assignments were eagerly sought by fledgling appellate lawyers. In private practice, they might not get an opportunity to argue a case before the Court of Appeals for many years. This case presented a novel question of double jeopardy.

LoCicero and two codefendants were indicted in federal court in Brooklyn for the crime of obstructing by robbery the movement of goods in interstate commerce. They hijacked a truck and left the driver tied to a tree. Before trial of the federal indictment, LoCicero was indicted in County Court, Kings County, on four counts arising out of the same transaction. After he was acquitted in federal court, he moved to dismiss the state indictment on the ground of double jeopardy. County Court granted the motion, but the Appellate Division reversed.

The then controlling statutes⁸ provided: "When an act charged as a crime is within the jurisdiction of another state, territory or country, as well as within the jurisdiction of this state, a conviction or acquittal thereof in the former, is a bar to a prosecution or indictment therefor in this state." The People argued that since the federal government is not "another state, territory or country," the acquittal in federal court does not bar prosecution in New York, even though based on the same acts.

The Court of Appeals could "think of no reason why the considerations underlying the admitted immunity predicated on a former judgment of a sister State or a foreign country are less compelling in regard to the Federal jurisdiction; nor have any been called to our attention by the People." It interpreted the statutory reference to "another state, territory or country" not as "deliberately excluding the Federal jurisdiction, but as a general reference to sovereigns other than New York." The United States was held to come within the definition of "another state or country" as used in the two relevant statutes. LoCicero still faced the charge of kidnapping because the Federal prosecution did not include that separate offense.

I was assigned as counsel in People v. Moll,⁹ a murder case in which my client, Moll, one of three robbers of a supermarket safe, was convicted of first-degree felony murder of a police officer who intercepted them as they were running to their getaway car. Moll carried a sawed-off, double-barreled shotgun. He shot the officer and, as the officer lay on the ground mortally wounded, Moll shot him a second time.

Of hundreds of briefs I have written and edited, this is the only one without a statement of facts. I could say nothing about the facts of the crime that would have aided Moll. I began with a jurisdictional statement, followed by the opinion of the court below and then went directly into my legal arguments, including therein the relevant facts. My arguments for a new trial included that defendant's constitutional right to counsel was violated by interrogation after his request for counsel was denied and the jury's verdict convicting Moll of felony murder was inconsistent with its acquittal of his codefendants on the same evidence. A divided court affirmed the convictions, without opinion.¹⁰

The dissenters would have granted a new trial to all three defendants because they did not believe the trial court "was free to reject defendant Moll's uncontradicted testimony as to the denial of counsel before his confession was obtained. The People had available numerous witnesses who would have been able to rebut this testimony, if in fact Moll's claim was false."

Brother's Lawyer

I consider that the most important appeal I ever handled is People v. Newman,¹¹ a 1973 pro bono case in which I successfully represented my brother,¹² Robert G. Newman, a doctor and director of the New York City Methadone Maintenance Treatment Program, who was sentenced to 30 days in jail for contempt of court for refusing to comply with a grand jury subpoena "requiring him to produce photographs of Negro males between the ages of 21 and 35 who were patients at" one of the city's methadone clinics. The District Attorney sought these photographs in a murder investigation because a witness to the shooting told police that she believed she had previously seen the killer in the waiting room of a methadone clinic where she was a patient. My motion to quash the subpoena on the ground that federal legislation and New York law prohibited production of the photographs was denied. The Appellate Division affirmed.

My argument that the photographs were confidential information whose disclosure would be a breach of the physician-patient privilege and cause irreparable harm to an essential public program that had enrolled thousands of patients, fell on deaf ears.

None of the justices accepted the uncontradicted opinion of experts in the field of drug addiction that the ordered disclosure would destroy the trust and confidence of patients in their physicians and counselors, vital for this type of treatment to be effective, and would discourage a large number of prospective patients from seeking treatment. They all rejected my plea that the public interest was best served by strengthening and expanding drug abuse treatment programs which were enrolling and successfully rehabilitating tens of thousands of hard-core heroin addicts, each of whom while remaining on the streets untreated posed as great a threat to society as the one man so assiduously sought by the prosecutor and grand jury. They also ignored the fact that the police had other investigative tools at their disposal. They could have set up a hidden camera outside the clinic and photographed every person entering and leaving.

One month after the decision of the Appellate Division affirming Dr. Newman's contempt conviction, the Attorney General of the United States, in a letter to Dr. Newman, granted absolute confidentiality to patient records in his New York Methadone Maintenance Treatment Program.¹³This was based on regulations promulgated under the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970.

A little more than a week after the Attorney General had granted absolute confidentiality to Dr. Newman's methadone program, the White House's Special Action Office for Drug Abuse Prevention¹⁴ prepared, in consultation with the Department of Justice and the Department of Health, Education and Welfare, an interpretative regulation to deal comprehensively with the confidentiality of drug treatment patients' records.¹⁵ "'If society is to make significant progress in the struggle against drug abuse,' the regulation read, the directors of 'drug abuse treatment programs' must be able 'to assure patients and prospective patients of anonymity.'"¹⁶

When the case was argued in the Court of Appeals, the majority adhered to the rule that the court will give effect to the law as it exists at the time of decision and "review defendant's conviction in light of the law as it presently exists."¹⁷The majority felt the "construction thus given to the legislation by the very agencies charged with its administration, supervision and enforcement is entitled to considerable weight." The court reversed and vacated the adjudication of contempt. Certiorari was denied.

Representing Insurers

I also represented insurers asking the court to weigh in on important issues of policy interpretation that had divided the highest courts in states throughout the United States.

In Technicon Electronics v. American Home Assur.,¹⁸ the court held that since the phrase "sudden and accidental" in the exception to a pollution exclusion in a comprehensive general liability policy "is expressed in the conjunctive, both requirements must be met for the exception to become operative. Stated conversely, discharges that are either non-sudden or non-accidental block the exception from nullifying the pollution exclusion."

The court rejected Technicon's argument that its discharge of toxic waste was "accidental" because it allegedly did not intend to cause environmental harm or the specific injuries claimed by the plaintiffs.

That argument fails because the pollution exclusion clause, by its own terms, does not distinguish between intended or unintended consequences of intentional discharges; rather, it excludes from coverage liability based on all intentional discharges of waste whether consequential damages were intended or unintended. If the discharge was intentional, the disqualifying exclusion clause is operative and there is no coverage because the exception clause lacks its springboard. Inasmuch as the underlying complaint alleges and Technicon's answer concedes that its dumping of wastes was deliberate, the occurrence cannot be "accidental" within the meaning of the policy. To accept Technicon's interpretation of the pollution exclusion clause would otherwise render that clause meaningless in context.¹⁹

Consolidated Edison of N.Y. v. Allstate Ins.,²⁰ arose out of environmental damage to a site in Tarrytown, at which Con Ed's corporate predecessors owned and operated a manufactured gas plant for over 60 years. As Chief Judge Kaye described it in her opinion for the court, "This case presents something of a time capsule in that nineteenth century technology polluting twentieth century properties will have significant twenty-first century financial ramifications."²¹

Con Ed commenced a declaratory judgment action against 24 insurers that had issued general liability policies to it between 1936 and 1986, seeking indemnification for its cleanup costs. A jury trial against three of those insurers resulted in a verdict finding there was property damage at the site during the years that the three defendants' policies were in effect, but that the property damage was not the result of an "accident" or "occurrence." Thus, there was no coverage. Con Ed appealed, arguing that the court erred in assigning it the burden of establishing that the property damage was the result of an "accident" or "occurrence."

The court held that "the requirement of a fortuitous loss is a necessary element of insurance policies based on either an 'accident' or 'occurrence.' The insured has the initial burden of proving that the damage was the result of an 'accident' or 'occurrence' to establish coverage where it would not otherwise exist?. Once coverage is established, the insurer bears the burden of proving that an exclusion applies."²²

Especially in the environmental pollution context, such a result "provides the insured with an incentive to strive for early detection that it is releasing pollutants into the environment"? In addition, it "appropriately places the burden of proof on the party having the better and earlier access to the actual facts and circumstances surrounding the discharge," including information about its own intentions and expectations.²³

Another important issue, one of first impression, was where "an alleged continuous harm spans many years and thus implicates several successive insurance policies, courts have split as to whether each policy is liable for the entire loss, or whether each policy is responsible only for a portion of the loss." This is the debate between "all sums" and "joint and several" or "pro rata" allocation of the loss.²⁴

Con Edison urged it should be permitted to collect its total liability ("all sums") under any policy in effect during the 50 years that the property damage occurred, up to that policy's limit. The indemnifying insurer could then seek contribution from other insurers who also provided coverage during the relevant period. The insurers argued for "pro-rata allocation," relying on the policy wording that they were only liable for injury or damage "during the policy period."

The court agreed with the insurers, finding, "Although more than one policy may be implicated by a gradual harm?joint and several allocation is not consistent with the language of the policies providing indemnification for 'all sums' of liability that resulted from an accident or occurrence 'during the policy period.'" The court noted that while pro rata allocation was not explicitly mandated by the policies, its application under the facts presented "is consistent with the language of the policies. Most fundamentally, the policies provide indemnification for liability incurred as a result of an accident or occurrence during the policy period, not outside that period? Con Edison's singular focus on 'all sums' would read this important qualification out of the policies. Proration of liability among the insurers acknowledges the fact that there is uncertainty as to what actually transpired during any particular policy period."

The court recognized, as did the trial court, that "there are different ways to prorate liability among successive policies. Here, the court prorated liability based on the amount of time the policy was in effect in comparison to the overall duration of the damage." The court noted that its decision was not meant to be "the last word on proration."

Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). The regular coauthor for this column, Steven J. Ahmuty Jr., did not take part in this column only and will return next time.

Notes

1. 13 N.Y.2d 282 (1963).
2. Mahoney v. Adirondack Publishing, 71 N.Y.2d 31, 39 (1987).
3. 35 Misc.2d 211, 213 (Sup. Ct. Queens Co. 1962).
4. 18 A.D.2d 1080 (2d Dept. 1963).
5. 13 N.Y.2d at 287.
6. 13 N.Y.2d 185 (1963).
7. 14 N.Y.2d 374 (1964).
8. Penal Law §33 and Code of Criminal Procedure, §139.
9. 21 N.Y.2d 706 (1967).
10. In those days, the Court of Appeals would affirm judgments without any opinion or memorandum. That changed in 1974 when Charles Breitel became chief judge. Today, there is a writing in every case setting forth the reasons for the court's decision.
11. 32 N.Y.2d 379 (1973), cert. den., 414 U.S. 1163 (1974).
12. That's what older brothers are for. Dr. Newman was then a city employee who, ordinarily, would have had to be represented by the Corporation Counsel's office, which thought he should turn over the photographs. However, because he had been convicted and sentenced to prison, he was free to select his own counsel to contest the conviction.
13. "The letter read this way: 'I hereby authorize you to withhold the names and other identifying characters of persons who are the subjects of research conducted pursuant to and in conformity with this research project. You may not be compelled in any Federal, State, or local civil, criminal, administrative, legislative, or other proceeding to identify the subjects of such research.'" 32 N.Y.2d at 386.
14. SAODAP was an executive agency created in June 1971 by President Richard Nixon within the Executive Office of the President.
15. The two individuals who deserve the credit for implementing the confidentiality regulations are Grasty Crews II, then general counsel of SAODAP, and Peter Barton Hutt, then general counsel for the Food and Drug Administration. We also received a great deal of support from Jeremiah S. Gutman, who filed an amicus curiae brief for the New York Civil Liberties Union, and from Louise Lander, who filed an amicus curiae brief for MFY Legal Services Inc.
16. 32 N.Y.2d at 386-387.
17. People v. Loria, 10 N.Y.2d 368, 370 (1961).
18. 74 N.Y.2d 66 (1989).
19. 74 N.Y.2d at 75.
20. 98 N.Y.2d 208 (2002).
21. 98 N.Y.2d at 215.
22. 98 N.Y.2d at 218-219..
23. 98 N.Y.2d at 219. In policies that defined "accident" or "occurrence" as "unintended or unexpected," courts were divided on whether the insured bears the burden of proving that the damage was unintended, or whether the insurer has the burden of proving that the damage was intended and is thus excluded.
24. See Ostrager & Newman, Allocation of Liability, §9.04[a] and [b], pp. 755-787.

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