text:
    William Kobylack, Appellant, v Nancy Kobylack, Respondent.
    Argued May 4, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      Marshall S. Goldman for appellant.
    I. The Appellate Division should not have given the wife an additional $20,031.77 from the husband’s Thrift Fund after the Supreme Court, upon carefully reviewing all of the facts and circumstances of the case, gave the wife nothing from said Thrift Fund. (.Rodgers v Rodgers, 98 AD2d 386; Arnold v Arnold, 52 AD2d 546; McKay v McKay, 78 AD2d 676; Jolis v Jolis, 111 Mise 2d 965; Damiano v Damiano, 94 AD2d 132; Majauskas v Majauskas, 110 Mise 2d 323.) II. The court below granted the wife a percentage of the total Thrift Fund when, in fact, plaintiff-husband will never receive the full amount of said Thrift Fund. (Rodgers v Rodgers, 98 AD2d 386; Lentz v Lentz, 117 Mise 2d 78; Majauskas v Majauskas, 110 Mise 2d 323.)

      Joseph M. Buderwitz and Joseph J. Buderwitz, Jr., for respondent.
    I. The facts as found by Special Term and affirmed by the Appellate Division limit this court’s power of review. (Felt v Olson, 51 NY2d 977; Schubtex, Inc. u Allen Snyder, Inc., 49 NY2d 1; Matter of Hofbauer, 47 NY2d 648.) II. The evidence establishes as a matter of law that appellant’s Thrift Fund is marital property subject to equitable distribution. {Majauskas v Majauskas, 110 Mise 2d 323, 94 AD2d 494.) III. Regardless of what portion of the Thrift Fund appellant will eventually receive, the court below did not abuse its discretion by increasing respondent’s distributive award based upon 28% of the total unallocated balance of that Fund. {Duffy v Duffy, 94 AD2d 711; Damiano v Damiano, 94 AD2d 132; Rodgers v Rodgers, 98 AD2d 386; Lind u Lind, 58 NY2d 965.)
   OPINION OF THE COURT

Per Curiam.

Special Term granted plaintiff-husband a divorce and directed distribution on a 72 to 28 ratio of the marital premises, household furnishings and automobile, but concluded that neither party was entitled to any share of the pension rights of the other. The facts and reasoning on which the distribution provisions of the judgment were based are reported at 110 Misc 2d 402.

In a memorandum and order, both of which stated that its disposition was “on the law,” the Appellate Division modified. Despite the statement that its disposition was on the law, however, the memorandum stated that “[pjlaintiff admitted at trial that he had explained to defendant that the money in the Thrift Fund was intended for the couple’s retirement. Thus, it is clear that defendant, as well as plaintiff, had the expectation of the future enjoyment of the savings contained therein upon plaintiff’s retirement”. (96 AD2d, at p 832.) On that apparently factual basis it modified Special Term’s judgment by directing that defendant be paid a distributive award of 28% of plaintiff’s Thrift Fund account, but made no mention of the defendant’s pension rights.

On appeal to this court plaintiff argues that the Appellate Division’s modification was in the exercise of discretion and constituted an abuse of discretion as a matter of law and that in any event it erred on the law in holding that the same percentage must be applied to all marital assets, and in failing to take into account the tax consequences of the distribution it ordered. The Appellate Division’s order failed to state, as required by CPLR 5712 (subd [c], par 1), whether Special Term’s findings of fact were affirmed. That requirement should not be disregarded for, as the Legislature recognized in imposing it, intelligent review of the Appellate Division’s order is hampered if we are not made aware of how it dealt with the facts. The omission does not, however, as it would have prior to adoption of the CPLR (see Rugg v State of New York, 303 NY 361), require us in every case to remit to the Appellate Division. Under CPLR 5612 (subd [a]) we may now “look to any order of the Appellate Division and to its opinion” to determine whether it resolved factual issues or acted in the exercise of discretion in reaching its conclusion (Second Preliminary Report, Advisory Committee on Practice and Procedure [NY Legis Doc, 1958, No. 13], p 362; Matter of Nassau Educational Ch. of Civ. Serv. Employees Assn. v Great Neck Union Free School Dist., 57 NY2d 658, 660).

The difficulty in the present instance is that it is not possible to discern from the memorandum why defendant’s pension rights were disregarded, or whether in ordering a distributive award to defendant of 28% of plaintiff’s Thrift Fund it was acting in the exercise of discretion or, as plaintiff argues, on the basis that as a matter of law the same percentage award was to be applied to all marital assets. It is, therefore, necessary to remand to the Appellate Division so that it may comply with CPLR 5712, or may exercise its discretion, if it be so advised. In the latter connection we note that, as we have recently held in Majauskas v Majauskas (61 NY2d 481), the authority of the Appellate Division to determine whether marital property shall be distributed or a distributive award shall be made in lieu of, or to supplement, facilitate or effectuate a distribution of marital property is as broad as that of the Trial Judge, but that when it substitutes its discretionary determination for that of Special Term it is required by section 236 (part B, subd 5, par g) of the Domestic Relations Law to “set forth the factors it considered and the reasons for its decision”.

For the foregoing reasons, the order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings in conformance with this opinion.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order reversed, with costs, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Peter T. Leonard, Appellant.
    Argued May 7, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      John L. Perticone, Acting Public Defender (Kenneth Ira Krigstein of counsel), for appellant.
    I. The trial court erred by failing to dismiss the information on the ground that the order banishing appellant from the State University of New York at Binghamton (SUNY-Binghamton) campus was unlawful because SUNY-Binghamton does not have the power to issue such an order and because such an order violates appellant’s constitutional right to travel freely. (Kent v Dulles, 357 US 116; United States v Guest, 383 US 745; Loughran v Codd, 432 F Supp 259; Matter of Jacobs, 98 NY 98; Aptheker v Secretary of State, 378 US 500; People v De Clemente, 110 Mise 2d 762; People v Nunez, 106 Mise 2d 236; People v Wolf, 63 Mise 2d 178; Matter ofFloretteD., 58 Mise 2d 1093; People u Rose, 82 Mise 2d 429.) II. The trial court erred in its ruling on appellant’s motion for a bill of particulars, its pretrial evidentiary ruling, its rulings on appellant’s motions for trial orders of dismissal, and its verdict, because an order of banishment from the SUNY-Binghamton campus, unless preceded by notice and a hearing and based on a good reason, violates due process and is therefore unlawful. (Board of Regents Roth, 408 US 564; Perry v Sindermann, 408 US 593; Kent v Dulles, 357 US 116; People v De Clemente, 110 Mise 2d 762; Matter of Jacobs, 98 NY 98; Goss v Lopez, 419 US 565; Mullane v Central Hanover Trust Co., 339 US 306; Anti-Fascist Committee v McGrath, 341 US 123; Morrissey v Brewer, 408 US 471; Wolff v McDonnell, 418 US 539.) III. The condition imposed on appellant at sentencing was unlawful.

      Patrick H. Mathews, District Attorney (James P. Maxwell of counsel), for respondent.
    I. The State University has the authority to exclude appellant from its campus. {Matter of Hanger v State Univ. of N. Y., 39 AD2d 253; Matter of Florette D., 58 Mise 2d 1093; People v Licata, 28 NY2d 113; People v Meadow, 101 Mise 2d 203.) II. The “persona non grata” letter does not violate appellant’s right to travel. {People v Rose, 82 Mise 2d 429; People v Nunez, 106 Mise 2d 236; People.v Wolf, 63 Mise 178; Kent v Dulles, 357 US 116; People v De Clemente, 110 Mise 2d 762.) III. The “persona non grata” letter does not violate appellant’s right to due process. {Board of Regents v Roth, 408 US 564.) IV. Appellant’s sentence was lawful.
   OPINION OF THE COURT

Chief Judge Cooke.

An individual who has been issued a “persona non grata” letter by a State University president, that banishes the individual from that part of the university campus normally “open to the public”, may not be convicted of trespassing for entering the campus when no proof is adduced to show that the banishment order was lawful. To sustain the burden of showing the order’s lawfulness, the People must demonstrate that, given the nature and purpose of the property, the particular exercise of the power to exclude had a legitimate basis. The purpose would not be legitimate if, for example, its enforcement unduly infringed upon an independent statutory or constitutional right of the defendant to be present on the property.

Defendant was an enrolled student at the State University of New York at Binghamton (SUNY-Binghamton) from time to time over the past 10 years. On February 23, 1981, when defendant was no longer a student, the president of SUNY-Binghamton issued an order banishing him from campus by declaring him “persona non grata”. This letter informed defendant that he would be subject to arrest if he returned to the campus.

SUNY-Binghamton law enforcement personnel discovered defendant at the Campus Pub on October 23, 1981. The Pub is located in the University Union building on the SUNY-Binghamton campus. Defendant was arrested and charged by information with criminal trespass in the third degree (Penal Law, § 140.10) for his allegedly unlawful presence on campus.

A nonjury trial was held in Vestal Town Court on October 19, 1982. Prior to trial, defendant and the People stipulated that: in February, 1981, defendant received a letter from SUNY-Binghamton’s president declaring him “persona non grata”; defendant was not a student, faculty member, or employee at the school at that time; notwithstanding this warning, defendant was present on the campus in October, 1981; and “[a]t all times pertinent to this case, the State University of New York at Binghamton, the University Union building, and the Campus Pub were ‘open to the public’ within the meaning of Penal Law Section 140.00 [5].” At the request of the People, and over defendant’s objection, the court found “as a matter of law” that an order of banishment “can be lawful, even if said school did not have any reason to issue it.” Additionally, at the People’s request, the court declined to consider any evidence on the issue of the order’s lawfulness. Based on these findings and the stipulated facts, the People rested. Defendant moved to dismiss the information on the grounds that SUNY-Binghamton was powerless to issue orders of permanent exclusion, that the order was issued in violation of defendant’s right to due process as he was accorded no hearing, and that the proof offered by the People as to the lawfulness of the order was insufficient. This motion was denied and defendant was convicted of the charged crime. The conviction was upheld by the County Court.

This court now reverses.

A prosecution for criminal trespass in the third degree may be maintained against a person who “knowingly enters or remains unlawfully in a building or upon real property” (Penal Law, §140.10). Generally, a person will be deemed to “[e]nter or remain unlawfully” on property when he or she does so without license or privilege (Penal Law, § 140.00, subd 5). When the property is “open to the public” at the time of the alleged trespass, however, the accused is presumed to have a license and privilege to be present (id.). In such a case, the People have the burden of proving that a lawful order excluding the defendant from the premises issued, that the order was communicated to the defendant by a person with authority to make the order, and that the defendant defied that order (id.; see People v Brown, 25 NY2d 374, 377).

At the outset, we reject defendant’s claim that SUNY-Binghamton is not generally empowered to exclude persons from the university campus. Article 129-A of the Education Law governs the regulation of college campuses and other college property used for educational purposes. Beyond a mere grant of power, it requires “[t]he trustees or other governing board of every college chartered by the regents or incorporated by special act of the legislature” to “adopt rules and regulations for the maintenance of public order on college campuses and other college property” (Education Law, § 6450, subd 1). It additionally provides that “[t]he penalties for violations of such rules and regulations shall be clearly set forth therein and shall include provisions for the ejection of a violator from such campus and property” (id.).

Pursuant to this statutory directive, the Board of Trustees of the State University of New York promulgated rules intended to “prevent abuse of the rights of others and to maintain * * * public order appropriate to a college or university campus” (8 NYCRR 535.1; see, generally, 8 NYCRR part 535). Among the authorized penalties that may be imposed for a violation of the rules of conduct (see 8 NYCRR 535.5) is to have the offending person’s “authorization to remain upon the campus or other property withdrawn” and to direct that person to “leave the premises” (8 NYCRR 535.5 [a]). Failure to voluntarily comply with such a directive will subject the person to ejection (id.). It is clear, therefore, that administrators of SUNY-Binghamton have the general power to exclude from the campus persons who do not abide by the rules of conduct. A reasonable and practicable means of effectuating that policy could be to advise an individual that, due to past conduct, he or she is no longer welcome on the campus and will be subject to arrest for trespassing upon return. Exclusion is a natural concomitant to the power to withdraw a person’s authorization to remain on the college campus.

There is also no merit to defendant’s argument that any order of exclusion would be unlawful, as violative of due process, absent the holding of a hearing prior to its issuance. Although the campus at SUNY-Binghamton may be open generally for the enjoyment of the public, defendant, who concededly is not a student or employee at the campus, has identified no “property” or “liberty” interest in being present on campus grounds that he could be lawfully deprived of only after being accorded a hearing (cf. Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 82-84; Board of Regents v Roth, 408 US 564, 568-572). Indeed, defendant claims only that the issuance of a “persona non grata” letter unlawfully inhibits his constitutional right to travel (see, e.g., Califano v Aznavorian, 439 US 170; Shapiro v Thompson, 394 US 618; United States v Guest, 383 US 745). It cannot be said that excluding from college campuses individuals who have flouted basic rules of order implicates the broad concept of freedom of movement embraced in this constitutional right (see Shapiro v Thompson, 394 US 618, 629, supra).

That SUNY-Binghamton may enjoy the general right to exclude persons from its campus and that it may do so in some cases without first holding a hearing is not determinative of this appeal, however. It is a wholly different question whether the People have satisfied their burden of proving every element of the charged offense. The required proof in this case includes the component that the particular order of exclusion was lawful and, hence, that defendant’s defiance of that order, after notice, would subject him to criminal liability for trespass.

In this case, defendant and the People stipulated that the SUNY-Binghamton campus was at all times “open to the public” within the meaning of section 140.00 of the Penal Law (see, also, People v Taylor, 114 Misc 2d 680), that defendant was served with an order issued by SUNY-Binghamton’s president declaring defendant “persona non grata” on the campus and that defendant, by returning to the campus, defied that order. Solely at issue, therefore, is whether there was sufficient evidence to establish that the particular order was lawful.

Although, as administrators of SUNY-Bing-hamton have broad power and great flexibility in maintaining order and securing the safety of others on the school campus (see People v Meadow, 101 Misc 2d 203), that power is not absolute. The power to exclude does not sanction orders based “directly or indirectly” on “the race, creed, color, national origin, sex, or disability or marital status” of the person sought to be excluded (see Executive Law, § 296, subd 2, par [a]). Moreover, when the public enjoys broad license to utilize certain property, State trespass laws may not be enforced solely to exclude persons from exercising First Amendment or other protected conduct in a manner consistent with the use of the property (Food Employees v Logan Val. Plaza, 391 US 308, 319-320, citing Marsh v Alabama, 326 US 501; compare Prune-Yard Shopping Center v Robins, 447 US 74). Therefore, a decision to exclude that is predicated on or impermissibly inhibits a constitutionally or a statutorily protected activity will not be lawful (see, e.g., People v Bush, 39 NY2d 529, 538, and at pp 538-543 [Cooke, J., dissenting; labor picketing]; People v De Clemente, 110 Misc 2d 762 [restricting travel right by exclusion from airport terminal]; People v Rewald, 65 Misc 2d 453 [freedom of press]).

To satisfy its burden of proof with respect to the element of the crime that a “lawful order not to enter” the property issued, the People must demonstrate that the particular order of exclusion had a legitimate basis and that, considering the nature and use of the subject property, its enforcement did not unlawfully inhibit or circumscribe the defendant from engaging in constitutionally or statutorily protected conduct. When, as in this case, the subject property is publicly owned and maintained, the People may not satisfy their burden of proof on this issue by relying on a presumption that the public official authorized to maintain order on campus discharged his or her responsibility, in the particular instance, in a lawful manner (see People v Session, 34 NY2d 254, 256; People v Richetti, 302 NY 290, 298). A “mandatory” or “conclusive” presumption, which operates to require the finder of fact to hold against the defendant in the absence of some showing by the defendant to the contrary, may never be applied in a criminal case with respect to one of the elements of the crime being prosecuted. Shifting the burden of production or persuasion to the defendant under such circumstances would impermissibly relieve the People of their burden of proving every element of the crime beyond a reasonable doubt (see Sandstrom v Montana, 442 US 510, 514-524; People v Leyva, 38 NY2d 160, 165, 167; McCormick, Evidence [2d ed], § 346, p 831; see, generally, Matter of Winship, 397 US 358, 364).

In the instant case, the People offered no evidence at trial to demonstrate that the issuance of the particular “persona non grata” letter to defendant, banishing him from the SUNY-Binghamton campus, was lawful. There is no evidence in the record thát would indicate that the order to remain off the property had a legitimate purpose, rationally related to the power to maintain order on the campus, or that its enforcement in this case violated no independent right of defendant. The People only suggest, and the trial court found, that because the president of SUNY-Bing-hamton has the general power to exclude individuals from the campus, this and any other particular order would be deemed lawful without a showing of any reason underlying its issuance. In so finding, the trial court could not properly rely on a presumption that the president of SUNY-Bing-hamton acted lawfully as that would unconstitutionally shift the People’s burden of proving that the particular order was lawful.

Accordingly, the order of the County Court should be reversed, the conviction vacated, and the information dismissed.

Judges Jasen, Wachtler, Meyer, Simons and Kaye concur; Judge Jones taking no part.

Order reversed, etc.


author: Jasen, J.

text:
    In the Matter of Jane Drexler, as Successor in Interest to John Ciardullo and Another, Appellant, v Town of New Castle et al., Respondents.
    Argued May 3, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      James M. Coogan for appellant.
    I. The New York State Department of Environmental Conservation has exclusive jurisdiction over the freshwater wetlands area of which appellant’s property constitutes a part. II. Appellant’s property does not constitute part of freshwater wetlands and, therefore, appellant was not required to obtain a permit at any time. III. Respondents failed to comply with the act because they did not file a proper map designating the freshwater wetlands in the Town of New Castle. (Town of Monroe v Carey, 96 Mise 2d 238, 46 NY2d 847; Keeney v Village ofLeRoy, 22 159; Matter of Off Shore Rest.

      Corp. v Linden, 30 NY2d 160; People v Bondi, 104 Mise 2d 627.) IV. The act, by its terms, is vague and, accordingly, unenforceable. (Malerba v Warren, 108 Mise 2d 785; Trio Distr. Corp. v City of Albany, 2 NY2d 690.) V. Respondent’s designation of appellant’s property as a wetland was an unreasonable act unsupported by any evidence. (Matter of Cowan v Kern, 41 NY2d 591.)

      Lawrence Dittelman, Town Attorney, for respondents.
    I. Not only is there no basis in the record to support Drexler’s claim that subject wetlands are under jurisdiction of the State Department of Environmental Conservation, the evidence is just to the contrary. II. Neither State law nor due process require the filing of a local wetlands map by a municipality to regulate wetlands not shown on the State map. (Town of North Hempstead v Exxon Corp., 53 NY2d 747; Spears v Berle, 48 NY2d 254; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324; Matter of Society for Ethical Culture v Spatt, 51 NY2d 449; Matter ofTri Cities Ind. Park v Commissioner of Dept, of Environmental Conservation, 76 AD2d 232.) III. There is a rational factual basis in the record to support the findings and conclusions of the Planning Board. (Matter of Society for Ethical Culture v Spatt, 68 AD2d 112, 51 NY2d 449; Matter of Cowan v Kern, 41 NY2d 591; Corter v Zoning Bd. of Appeals, 46 AD2d 184; Brick Hill Constr. Corp. v Zoning Bd. of Appeals, 74 AD2d 810, 53 NY2d 621; Matter of Miller v Ward, 72 AD2d 565, 51 NY2d 887; Matter of Fuhst v Foley, 45 NY2d 441; Matter v Zoning Bd. of Appeals, 75 AD2d 435.)

      Robert Abrams, Attorney-General (.Kathleen Liston Morrison, Peter H. Schiff and James A. Sevinsky of counsel), pro se, and for Commissioner of the New York State Department of Environmental Conservation, amicus curiae.

    I. A local government may regulate wetlands which are not designated on the State Freshwater Wetlands map because they are less than 12.4 acres in size without filing or promulgating a local wetlands map. II. A local government may regulate wetlands smaller than 12.4 acres prior to the filing of a State wetlands map.
   OPINION OF THE COURT

Jasen, J.

The central issue on this appeal is whether a town may regulate the use of wetlands which are not designated on the State Freshwater Wetlands map, without filing or promulgating a map identifying such local wetlands. This is the first occasion that this court has been asked to delineate the role of a local government under the Freshwater Wetlands Act. (Environmental Conservation Law [ECL], art 24.) The material facts are not in dispute, and only a brief recitation is necessary to illustrate the question thus presented.

In July, 1979, prior to taking title to the subject property, petitioner’s predecessors applied to the respondent Planning Board of the Town of New Castle for a wetlands permit to construct a septic tank, system for the proposed residence. Following a public hearing, the permit was granted. In October, 1981, a second permit was sought to construct a tennis court. This time, however, the Town Conservation Board recommended denial and, following hearings before the Board, the latter denied the request finding that the construction of a tennis court on the premises and the anticipated resulting deterioration of the wetlands would be “in direct violation of the spirit, intent and purpose” of the local wetlands law.

Thereupon, petitioner’s predecessors commenced this article 78 proceeding. Special Term vacated the Board’s denial and directed reconsideration of the merits of the application. The court held that the respondents lacked statutory authority to implement a local wetlands law without first adopting and filing a local wetlands map. The Appellate Division unanimously reversed, finding that petitioner’s predecessors had actual notice that a portion of the subject property was regulated and, therefore, they suffered no prejudice from the town’s failure to file a local wetlands map. We now affirm for the reasons that follow.

The Freshwater Wetlands Act, enacted in 1975, establishes a comprehensive scheme for the regulation of freshwater wetlands designed to strike a balance between preservation and protection on the one hand, and reasonable economic use and development on the other. (Spears v Berle, 48 NY2d 254, 261.) Under its provisions, the Commissioner of the State Department of Environmental Conservation became empowered to identify wetlands which were to be subjected to strict regulation. But the statutory provisions are not applicable to every wetland throughout the State. Rather, certain limitations are explicitly stated outside of which the statutory requirements are not imposed.

The statute defines “freshwater wetlands” as only those lands and waters “shown on the freshwater wetlands map” (ECL 24-0107, subd 1), and it defines the “freshwater wetlands map” as that “promulgated by the [Department [of Environmental Conservation] pursuant to section 24-0301”. (ECL 24-0107, subd 2.) In turn, the referenced section 24-0301 mandates that the Commissioner undertake a study for the purpose of preparing a tentative wetlands map (subd 2), and ultimately promulgating a final one (subd 5), identifying those wetlands which either have “an area of at least twelve and four-tenths acres or more” or, if smaller, have, in the discretion of the Commissioner, “unusual local importance” (subd 1; emphasis added). Consequently, only those lands or waters satisfying either the size or the importance criterion are shown on the State-prepared map and constitute “freshwater wetlands” within the meaning of the statute.

Once these wetlands have been identified and a final map prepared, promulgation is consummated by the Commissioner’s filing a copy of the promulgation order, “together with a copy of such map or relevant portion thereof * * * in the office of the clerk of each local government in which each such wetland or a portion thereof is located”. (ECL 24-0301, subd 5.) Upon the filing of this State-prepared wetlands map, a local municipality has the option of enacting and implementing its own regulations to govern the identified wetlands. (ECL 24-0501.) In pertinent part, the statute provides that: “On or after September 1, 1975, each local government may adopt, amend, and, upon the filing of the appropriate freshwater wetlands map, implement a freshwater wetlands protection law or ordinance in accordance with this article to be applicable to all freshwater wetlands wholly or partially within its jurisdiction.” (ECL 24-0501, subd 1; emphasis added.) Thereby, the statute permits a local government to exercise jurisdiction over the State-mapped wetlands within its boundaries by adopting local protective legislation.

With regard to other wetlands, however, which do not qualify as a “freshwater wetland” under the statute, because they are neither large enough nor deemed to be unusually important and which, therefore, have not been identified by the Commissioner on the “freshwater wetlands map”, the statute reserves entire and exclusive jurisdiction in the local governments. Section 24-0507 provides, in part, that: “Except as provided in this article, jurisdiction over all areas which would qualify as freshwater wetlands except that they are not designated as such on the freshwater wetlands map pursuant to section 24-0301 of this article because they are less than twelve and four-tenths acres in size and are not of unusual local importance is reserved to the city, town or village in which they are wholly or partially located”. (Emphasis added.) Likewise, section 24-0509 reasserts the authority of local governments over non-State-mapped wetlands by emphasizing that: “No provision of this article shall be deemed to remove from any local government any authority pertaining to the regulation of freshwater wetlands under the county, general city, general municipal, municipal home rule, town, village, or any other law.”

These provisions make clear that any wetlands which are less than 12% acres and are not considered by the Commissioner to be of unusual local importance are indeed not “freshwater wetlands” within the purview of the statute and will not be identified on the requisite “freshwater wetlands map”. Such nonqualifying wetlands fall outside the mandates of the statutory scheme and are subject only to local regulations. (See Memorandum of State Department of Environmental Conservation, McKinney’s Session Laws of NY, 1977, pp 2394, 2395-2396; 1976 Opns Atty Gen 51.)

In this case, a portion of petitioner’s property lies in the wetland in question. The record indicates that the wetland is only approximately five acres in size and has not been determined by the Commissioner to be unusually important. Accordingly, it does not constitute a “freshwater wetland” under the statutory definition, does not appear on the State-prepared map for the local area, and is not governed by the statutory requirements.

“[e]recting any building or structure * * *

“[a]ny form of pollution, including but not limited to installing a septic tank * * *

“[and] [a]ny other activity which substantially impairs any of the several functions served by wetlands, water bodies and water courses or the benefits derived therefrom”. (New Castle Town Code, § 137-3.)

It establishes procedures for applying for a permit and standards for granting one. The local law does not, however, require that the wetlands to which it applies be designated on a locally filed map and, in fact, no such map has been prepared.

Contrary to the petitioner’s contention, nothing in the State statutory scheme mandates the local preparation or filing of a map identifying the subject wetland. As previously outlined, the provisions of the statute are explicitly applicable only to the “freshwater wetlands” defined therein in terms of size or considered importance. The wetland which lies partly on petitioner’s property satisfies neither of those criteria and has not been included on the State-prepared “freshwater wetlands map” which has been filed locally. In short, the wetland falls outside the mandates of the statute, including the requirement for designation on a wetlands map. It is true that a local government’s authority to regulate a statutorily qualifying wetland is subject to “the filing of the appropriate freshwater wetlands map”. (ECL 24-0501, subd 1.) But the clear language of the statutory provisions, especially those which give a restrictive meaning to “freshwater wetlands map” as one identifying only statutorily qualifying wetlands (ECL 24-107, subd 2) and which unequivocally reserve in the local governments exclusive jurisdiction over all other wetlands (ECL 24-507, 24-509), establishes that nonstatutorily qualifying wetlands are excluded from the mapping requirements of sections 24-0301, 24-0501 and elsewhere in the statute. Accordingly, inasmuch as the wetland in question does not qualify under the statutory scheme for designation on a “freshwater wetlands map”, it is subject to the exclusive authority of the local government which is not required, under either the State statute or the local law, to file a map identifying the wetlands regulated solely by local law.

Moreover, with regard to petitioner’s argument regarding the absence or inadequacy of notice that the subject property was subject to local regulations by reason of its not being identified on a wetlands map, it need only be noted that the factual finding of the Appellate Division, that petitioner’s predecessors had actual notice that the property was subject to local wetlands regulations, is supported in the record which shows that they expressly acknowledged the existence of wetlands on the property when they applied for the prior wetlands permit. In view of the foregoing, it need not be decided whether the notice requirements of due process would otherwise be satisfied.

Finally, the denial of the permit to construct a tennis court was rational and supported by evidence that the premises does contain a wetland and that the proposed construction would create further risk of erosion and deterioration than that already caused by the building allowed under the first permit. (Cf. Spears v Berle, 48 NY2d 254, 261, supra.)

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

Judges Jones, Wachtler, Meyer, Simons and Kaye concur; Chief Judge Cooke taking no part.

Order affirmed, with costs.

       The present party-petitioner is the successor in interest in the subject premises to the parties who originally instituted this article 78 proceeding. On an unopposed motion, the Appellate Division substituted Jane Drexler as the petitioner-respondent in that court and amended the caption of this proceeding accordingly.


text:
    Subcontractors Trade Association et al., Respondents, v Edward I. Koch, as Mayor of the City of New York, et al., Appellants.
    Argued May 2, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel CMi-chael Gage, and Michael S. Adler of counsel), for appellants.
    I. Executive Order No. 53 and the implementing regulations promulgated by the Bureau of Labor Services are in all respects legal. This court should accordingly direct that a judgment be entered so declaring. CMatter of Broidrick v Lindsay, 39 NY2d 641; Matter of Fullilove v Beame, 48 NY2d 376; Matter of CUNY-Hostos Community Coll, v State Human Rights Appeal Bd., 59 NY2d 69; Youngstown Co. v Sawyer, 343 US 579; Matter of Lorie C., 49 NY2d 161; Board of Educ. v Nyquist, 57 NY2d 27; Harris v McRae, 448 US 297; Dandridge v Williams, 397 US 471; Matter of Quinton A., 49 NY2d 328; Fullilove v Klutznick, 448 US 448.) II. Assuming, arguendo, that this court cannot declare in favor of defendants, it should reinstate the order of Special Term. For, Special Term did not abuse its discretion in refusing to entertain this declaratory judgment action, and the court below therefore erred in overturning Special Term’s determination. {Board of Educ. v Nyquist, 50 NY2d 889; Bruno v Codd, 47 NY2d 582.) III. Assuming, arguendo, that this court can neither declare in favor of defendants nor reinstate the order of Special Term, it should vacate the declaration issued by the court below and remand to Special Term. For, the court below exceeded its jurisdiction or at least abused its discretion in issuing a declaration against defendants when defendants had not been afforded even an opportunity to answer the complaint. (Stukuls v State of New York, 42 NY2d 272; Metropolitan Package Store Assn, v Koch, 89 AD2d 317; Topiwala v New York Life Ins. Co., 95 AD2d 746; Rovello v Orofino Realty Co., 40 NY2d 633.)

      Irwin M. Taylor and Dena Sklarin for respondents.
    I. Executive Order No. 53 violates the express mandates of the Court of Appeals as set forth in Matter of Broidrick v Lindsay and Matter ofFullilove v Beame. {Matter of Broid-rick v Lindsay, 39 NY2d 641; Matter ofFullilove v Beame, 48 NY2d 376; Matter ofNatilson v Hodson, 289 NY 842.) II. Executive Order No. 53 is invalid because the Mayor has exceeded his statutory authority and entered into a legislative area reserved for the City Council by the City Charter. {Prentis v Atlantic Coast Line, 211 US 210; Rapp v Carey, 88 Mise 2d 428, 58 AD2d 918, 44 NY2d 157; People v Tremaine, 252 NY 27.) III. Executive Order No. 53 is illegal and in violation of subdivision b of section 343 of the New York City Charter. IV. Executive Order No. 53 violates section 103 of the General Municipal Law. {Matter of Signacon Controls v Mulroy, 32 NY2d 410; Matter of District Council No. 9 v Metropolitan Transp. Auth., 115 Mise 2d 810; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187; Matter of New York State Assn, of Plumbing-Heating-Cooling Contrs. v Egan, 86 AD2d 100, 56 NY2d 1030.) V. Executive Order No. 53 is invalid because it is in contravention of section 100-a of the General Municipal Law. VI. Executive Order No. 53 violates constitutional rights to equal protection under the law. {School Crossing Guards Assn, v Beame, 438 F Supp 1275; Matter of Green-burgh No. 11 Federation of Teachers v Helsby, 41 AD2d 329; Uberman v Lasner, 55 Mise 2d 1027.) VII. In a declaratory judgment action, a motion to dismiss for failure to state a cause of action raises the question of whether the jurisdiction of the court is properly invoked to render a declaratory judgment. In a proper case, such as the one at bar, the court may then reach the merits of the case and declare the rights of the parties. {Plaza Health Clubs v City of New York, 76 AD2d 509; Abbott v City of Poughkeepsie, 98 Mise 2d 601; New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272; Boulevard Gardens Tenants Action Committee v Boulevard Gardens Housing Corp., 88 Mise 2d 98; Hallock v State of New York, 39 AD2d 172, 32 NY2d 599; De Milia v State of New York, 96 Mise 2d 77, 72 AD2d 536, 447 US 922; King v Power Auth., 44 AD2d 74, 38 NY2d 756; Board ofEduc. v Nyquist, 50 NY2d 889; Civil Serv. Forum v New York City Tr. Auth., 4 AD2d 117.)

      Lois Waldman and Marc D. Stern for American Jewish Congress, amicus curiae.

    I. The challenged order and regulations do not impose racial quotas or preferences and are not violations of this court’s decisions in Broidrick and Fullilove. (Matter of Fullilove v Beame, 48 NY2d 376; Matter of Broidrick v Lindsay, 39 NY2d 641.) II. The challenged order and regulations rest on legitimate economic and social factors wholly consistent with existing State policy. III. The purposes of the mayoral order are well within the legitimate concerns and responsibilities of municipal government and the means selected are appropriate and efficacious.
   OPINION OP THE COURT

Jasen, J.

The principal question before us is whether the Mayor of the City of New York, by Executive Order, may lawfully mandate that a 10% share of all construction contracts awarded by the city be given to “locally based enterprises”.

Defendants place heavy emphasis on the socioeconomic circumstances which purportedly gave rise to the issuance of the order. However, the issue presented for our determination is not what prompted the Mayor to issue the order or whether the order seeks to accomplish a desirable objective, but whether the Mayor was legally empowered to issue the order at all.

In an effort to promote the development of business and employment opportunities in economically depressed areas of New York City, the Mayor issued Executive Order No. 53 to “ensur[e] that small enterprises conducting business in such areas, or employing economically disadvantaged persons, receive a greater share of all construction contracts awarded by the City of New York.” (Executive Order No. 53, § 1.)

Among other things, the order requires all agency heads to “seek to ensure that not less than ten percent of the total dollar amount of all contracts awarded for construction projects during each fiscal year shall be awarded to locally based enterprises [LBE].” (Executive Order No. 53, § 3.)

Pursuant to authorization contained in the order, the Bureau of Labor Services, a mayoral agency, adopted implementing rules and regulations. (See City Record, March 6, 1981, p 507, cols 3 and 4.) In large part, the rules are simply definitional and do not alter the thrust of the policy objectives sought to be advanced by the order.

In September, 1981, plaintiffs, 17 trade associations, commenced a declaratory judgment action seeking invalidation of the Executive Order and the promulgated regulations. Defendants, Mayor Koch and the City of New York, responded by moving, before answer, pursuant to CPLR 3211 (subd [a], par 7), to dismiss the complaint for failure to state a cause of action. Special Term granted the motion and dismissed the complaint, with leave to replead, holding that plaintiffs failed to demonstrate the existence of a justiciable controversy. A divided Appellate Division reversed and declared the order and regulations to be “unconstitutional, unlawful and unenforceable”.

Preliminarily, we note that plaintiffs are subject to and directly affected by Executive Order No. 53 and, therefore, have standing to bring this action. (See Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; see, also, Matter of Fullilove v Beame, 48 NY2d 376; Rapp v Carey, 44 NY2d 157; Matter Broidrick v Lindsay, 39 NY2d 641.) As to defendants’ claim that no actual controversy exists which the courts may pass on, we disagree. Plaintiffs, who have a stake in the outcome of this action, challenged the legality of an Executive Order purporting to have the force of law. There being no factual questions to be confronted in deciding whether the Mayor had the authority to issue the Executive Order, an actual controversy is presented which the courts have power to resolve in a declaratory judgment action without the need to conduct a trial. (See Matter of Morgenthau v Erlbaum, 59 NY2d 143, 150; O’Hara v Del Bello, 47 NY2d 363; New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272, 276; Rovello v Orofino Realty Co., 40 NY2d 633.)

We begin our analysis of the substantive issues presented by recognizing that the underlying structure of our representative system of government consists of three branches in which all governmental power is distributed — the executive, legislative and judicial (NY Const, art III, § 1; art IV, § 1; art VI; see, also, NY City Charter, ch 1, § 3; ch 2, § 21.) Respect for this structure and the system of checks and balances inherent therein requires that none of these branches be allowed to usurp powers residing entirely in another branch. (Youngstown Co. v Sawyer, 343 US 579; Matter of Nicholas v Kahn, 47 NY2d 24, 30-31.) In the case before us, we are called upon to decide, as we were in Matter of Fullilove v Beame (48 NY2d 376, supra), Rapp v Carey (44 NY2d 157, supra) and Matter of Broidrick v Lindsay (39 NY2d 641, supra), at what point an exercise of executive power becomes an unlawful infringement upon the legislative function.

In New York City, the City Council is the body vested with legislative power. (NY City Charter, ch 2, § 21.) The Mayor, as chief executive officer, is empowered to implement and enforce legislative pronouncements emanating from the Council, but in doing so the Mayor “may not go beyond stated legislative policy and prescribe a remedial device not embraced by the policy”. (Matter of Broidrick v Lindsay, supra, at pp 645-646.)

Plaintiffs contend that the Mayor has legislated by fiat a policy for which there is no grant of legislative power and that the principles espoused in Matter of Fullilove v Beame (supra) and Matter of Broidrick v Lindsay (supra) require that the order be declared unconstitutional and invalid. It is also contended that the Mayor’s action is inconsistent with long-standing legislative pronouncements making competitive bidding, rather than size, location or financial status of the employees of the company seeking the contract, the sole criterion, with certain exceptions not relevant here, for awarding public construction contracts.

Defendants, on the other hand, argue that the Mayor had authority to issue Executive Order No. 53. They further assert that the order is only directory and that it cannot, therefore, be deemed to be inconsistent with legislation requiring competitive bidding.

Since we agree with plaintiffs that Executive Order No. 53 represents an unconstitutional usurpation of legislative power, we need not and do not address plaintiffs’ alternative argument that the Executive Order is inconsistent with existing law relative to competitive bidding. The order of the Appellate Division should, therefore, be affirmed.

It is true, as defendants point out, that the New York City Charter gives the Mayor broad powers. He is empowered to create or abolish individual positions or entire bureaus within his executive office (NY City Charter, § 3) and he may appoint department heads and commissioners not elected by the people (NY City Charter, § 6). The Mayor also possesses the city’s residual powers (NY City Charter, § 8, subd a) and is empowered to enter into contracts on behalf of the city (Matter of Bauch v City of New York, 21 NY2d 599, 605). We note, however, that the general power to enter into contracts which is bestowed upon the executive branch of government ordinarily cannot serve as a basis for creating a remedial plan for which the executive never received a grant of legislative power. (See Matter of Fullilove v Carey, 91 Misc 2d 531, 533, affd 62 AD2d 798, affd 48 NY2d 826.) Furthermore, subdivision e of section 228 of the Charter authorizes the Mayor to “issue directives and adopt rules and regulations in regard to the execution of capital projects”.

Plaintiffs do not challenge these general powers but, rather, assert that what the Mayor did by way of Executive Order No. 53 goes well beyond his executive powers and actually creates, without having been granted authority to do so, a program at odds with existing legislative policy. We agree. In two similar cases, Matter of Fullilove v Beame (48 NY2d 376, supra) and Matter of Broidrick v Lindsay (39 NY2d 641, supra), we struck down executive action which went beyond enforcement of legislative enactments by prescribing remedial devices not embraced by stated legislative policy. In those cases, the Executive Orders promulgated purported to enforce legislative enactments prohibiting discrimination in employment. However, because the executives lacked a grant of legislative authority to adopt affirmative action plans, the orders requiring affirmative action were declared invalid.

The same result must follow in this case. Where, as here, the executive adopts a plan specifying that a certain percentage of city construction contracts are to be allotted to a particular group or category of business enterprise, he has gone beyond his function of implementing general Charter-conferred powers. Such action constitutes an exercise of legislative power. (See Matter of Fullilove v Beame, supra; Matter of Broidrick v Lindsay, supra.) In order for the executive to lawfully mandate the award of construction contracts to a particular group or category of business enterprise, the legislature must specifically delegate that power to him and must provide adequate guidelines and standards for the implementation of that policy. (See Rapp v Carey, 44 NY2d 157, 162, supra; Packer Coll. Inst. v University of State of N. Y., 298 NY 184.) There has been no such specific legislative authority granted to the Mayor in this case. General Charter-conferred powers and City Council resolutions upon which defendants rely in no way purport to authorize the Mayor to issue Executive Order No. 53. However desirable the ostensible purpose may be, there is simply no legislative authority permitting the Mayor to unilaterally initiate this type of program or the means for effectuating it. In the absence of such specific authority, the executive action must be deemed an unlawful usurpation of the legislative function. (Matter of Fullilove v Beame, 48 NY2d 376, Matter of Broidrick v Lindsay, 39 NY2d 641, supra.)

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

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs.

      .. A locally based enterprise is defined as “a business enterprise which: (i) earned gross receipts of $500,000 or less during the appropriate period; and (ii) (A) earns a substantial amount of its gross receipts in an economic development area; or (B) employs a substantial number of economically disadvantaged persons.” (Executive Order No. 53, § 2, subd h.)

      . It is irrelevant to the legal issue presented here that the remedial devices created by executive action in Matter of Fullilove v Beame (48 NY2d 376) and Matter of Broidrick v Lindsay (39 NY2d 641) were affirmative action programs establishing racial quotas while the device at issue here is a procedure for awarding a greater number of city construction contracts to LBE’s. The legal issue is the same in all three cases — whether the executive usurped the legislature’s function.


text:
    In the Matter of Park West Village, Appellant, v Barbara Lewis, Respondent.
    Argued May 7, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      Gary M. Rosenberg, Robert A. Jacobs and Mark D. Graham for appellant.
    I. Under the “totality of factors”, the tenant has violated a substantial obligation of the tenancy. {Matter of Park East Land Corp. v Finkelstein, 299 NY 70; Park WestMgt. Corp. u Mitchell, 47 NY2d 316; CopartInds. v Consolidated Edison Co., 41 NY2d 564; Rumiche Corp. v Eisenreich, 40 NY2d 174; Pollack v Greene Constr. Corp.,
      40 AD2d 996, 32 NY2d 720.) II. The covenant to use a premises for only residential purposes constitutes a substantial obligation of the tenancy, which the tenant has violated by engaging in a business use involving traffic flow. (930 Fifth Corp. v King, 40 AD2d 140, 31 NY2d 1046; East Riv. Housing Corp. v Matonis, 34 AD2d 937; Matter of Park East Land Corp. v Finkelstein, 299 NY 70; Park West Mgt. Corp. v Mitchell, 47 NY2d 316.)

      Mark P. Denbeaux, Risa G. Dickstein, Scott A. Felcher and Barbara Dixon for respondent.
    I. As a matter of law, a residential use clause does not prohibit nonresidential uses which do not injure the property or alter its residential character. (Matter of Park East Land Corp. v Finkelstein, 299 NY 70; Nissen v Wang, 105 Mise 2d 251; 420 East 80th Co. v Chin, 115 Mise 2d 195; Bell v Gitlitz, 65 Mise 2d 998; Vittorio Props, v Alprin, 67 Mise 2d 439; Phillipse Towers v Ortega, 61 Mise 2d 539; Schnibbe v Glenz, 245 NY 388.) II. Sound public policy supports a functional test for determining the application of the restrictive covenant in this case. (Park West Mgt. Corp. v Mitchell, 47 NY2d 316.) III. Landlord’s “bargain theory”, its “totality of factors” test and section 53 of the Rent Stabilization Code do not support landlord’s position. (Park West Mgt. Corp. v Mitchell, 47 NY2d 316; Matter of Park East Land Corp. v Finkelstein, 299 NY 70; Nissen v Wang, 105 Mise 2d 251; Vittorio Props, v Alprin, 67 Mise 2d 439; Bell v Gitlitz, 65 Mise 2d 998.) IV. Restrictive covenants in leases are disfavored and are always to be strictly construed against the landlord. (Nor-rington v Wright, 115 US 188; Helgar Corp. v Warner’s Features, 222 NY 449; O’Meara Co. v National Park Bank, 239 NY 386; Jacob & Youngs vKent, 230 NY 239; Vittorio Props, v Alprin, 67 Mise 2d 439.) V. In the absence of a showing of “actual harm” to the demised premises by tenant’s minimal use of residence to conduct counseling sessions, tenant cannot be evicted from her residence. (Matter of Park East Land Corp. v Finkelstein, 299 NY 70; Vittorio Props, v Alprin, 67 Mise 2d 439; Bell v Gitlitz, 65 Mise 2d 998; 420 East 80th Co. v Chin, 115 Mise 2d 195; Piankay Realties v Romano, 271 App Div 104, 296 NY 920; 930 Fifth Corp. v King, 40 AD2d 140, 31 NY2d 1046; East Riv. Housing Corp. v Matonis, 34 AD2d 937; Nissen v

      Wang, 105 Mise 2d 251; Rumiche Corp. v Eisenreich, 40 NY2d 174; Souveran Fabrics v Virginia Fibre Corp., 32 AD2d 753; Matter of Wilco Props. Corp. v Department of Environmental Conservation, 39 AD2d 6.)
   OPINION OF THE COURT

Jasen, J.

The issue presented on this appeal is whether a significant violation of a substantial obligation of a lease occurs when a tenant who agreed to use her apartment solely for residential purposes also uses the apartment as a counseling office where she conducts her entire professional psychotherapy practice.

Respondent tenant, Dr. Barbara Lewis, a doctor in clinical psychology, rented an apartment in a rent-stabilized building located in New York City from petitioner landlord. The lease, which was entered into by both parties on June 16, 1969, provides, inter alia, that: “Tenant shall not use or occupy the apartment or allow the apartment to be used or occupied for any purpose other than as and for a private dwelling-place, nor by any party other than Tenant, the members of tenant’s immediate family as stated in the most recent Information Form Concerning Applicant and any children hereafter born to or adopted by Tenant. Landlord hereby advises Tenant that the character of the occupancy of the apartment and the use thereof, as in this case restricted, is a special consideration and inducement for the making of this lease by Landlord.”

Despite the unambiguous use and occupancy restriction contained in the lease, tenant, as a professional psychotherapist began counseling patients in her apartment. Sometime after the landlord learned of this, it served tenant with a 10-day notice to cure, stating that “[i]t has come to your landlord’s attention that you are in violation of Article 2 of your lease, and of the terms and conditions of your lease in that you are using your apartment for purposes other than residential” purposes, to wit, for the professional practice of psychology * * * I wish to advise you that it will be necessary for you to desist from continuance of this illegal occupancy within ten (10) days from the receipt of this notice. Should you fail to comply with the terms of this notice within the time required, then it will be necessary to commence legal proceedings to terminate your lease and occupancy.” When tenant refused to comply with the notice, landlord served her with a notice terminating the tenancy.

Shortly thereafter, tenant commenced a declaratory judgment action against the owner seeking a declaration that her use of the apartment was not a violation of a substantial obligation of her tenancy within the meaning of subdivision A of section 53 of the Code of the Rent Stabilization Association of New York City, Inc. (Rent Stabilization Code).

On July 23, 1981, the parties entered into a stipulation discontinuing the declaratory judgment action and permitting the landlord to proceed with a holdover proceeding provided that, if landlord were awarded a final judgment of possession, tenant would be permitted to cure the default within 60 days thereafter by discontinuing the practice of psychotherapy in her apartment. It was further agreed that in the event landlord was successful at the holdover proceeding, tenant could remain in possession of the apartment during the pendency of an appeal, provided that she discontinue her practice of psychotherapy on the premises.

Landlord commenced a summary holdover proceeding against tenant in the Civil Court of the City of New York. After trial, possession of the apartment was awarded to landlord. On appeal, the Appellate Term reversed, holding that “it was not demonstrated that tenant’s ‘business activities’ in her apartment were so substantial as to warrant termination of her twelve-year stabilized tenancy.” A sharply divided Appellate Division affirmed. Landlord’s appeal is before us pursuant to leave granted by the Appellate Division. We now reverse.

The subject lease contained a restrictive covenant limiting the tenant’s use and occupancy of the apartment exclusively to residential purposes — “Tenant shall not use or occupy the apartment or allow the apartment to be used or occupied for any purpose other than as and for a private dwelling-place”. Tenant concedes that she used the apartment for other than residential purposes by conducting her entire psychotherapy practice there. She correctly argues, however, that subdivision A of section 53 of the Rent Stabilization Code prevents a landlord from evicting a tenant in a rent-stabilized apartment unless “[t]he tenant is violating a substantial obligation of [her] tenancy”. (Emphasis supplied.)

Thus, we turn our attention to the question whether tenant violated “a substantial obligation” of the lease. Tenant again concedes, as she must, that the lease provision limiting use and occupancy of the apartment to residential purposes is a substantial obligation of her tenancy. Indeed, by the express terms of the lease, the residential character and limited use of the apartment “is a special consideration and inducement for the making of this lease by Landlord”. Although we find that tenant has violated “a substantial obligation” of her tenancy, this does not end our inquiry, for the problems associated with the acute shortage of residential housing in New York City demand that tenants be afforded more protection than would be available under an unduly restrictive interpretation of subdivision A of section 53.

We need not expound at length upon the crisis existing in the housing market in New York City. Suffice it to say, in 1969 the city council issued a declaration of emergency, concluding that “unless residential rents and evictions continue to be regulated and controlled, disruptive practices and abnormal conditions will produce serious threats to the public health, safety and general welfare”. (Administrative Code of City of New York, § YY51-1.0 [findings and declaration of emergency reaffirmed March 30,1982].)

In view of the legislative recognition of the plight of residential tenants residing in New York City, we do not believe that subdivision A of section 53 of the Rent Stabilization Code should be given a restrictive construction. Instead, in addition to requiring proof that a tenant violated a substantial obligation of the lease, we hold that a landlord must also demonstrate that the violation of such obligation was a significant one — i.e., not a technical or a de minimis violation.

We note that the standard we adopt today was foreshadowed by this court 35 years ago. In Matter of Park East Land Corp. v Finkelstein (299 NY 70, 73), this court was called upon to decide the exact question presented on the instant appeal — whether a tenant violated “a substantial obligation of his tenancy”. While most of the court’s discussion focused on the substantiality of the obligation which was violated, Judge Fuld, writing for a unanimous court, imposed upon the landlord the additional requirement of establishing a “significant departure” from a substantial obligation of the tenancy. {Id., pp 75-76.)

Inasmuch as the housing crisis in New York City has not abated over the past 35 years (Administrative Code of City of New York, § YY51-1.0.1; 8200 Realty Corp. v Lindsay, 27 NY2d 124, 136), we see no reason to give a more restrictive construction to the current Rent Stabilization Code than was given to the New York City Eviction Law in 1949. Furthermore, we do not believe that the city council, in authorizing the adoption of the present Rent Stabilization Code, intended that de minimis violations of substantial lease obligations should serve as a basis for the eviction of tenants from their rent-stabilized homes. (Cf. Matter of Park East Land Corp. v Finkelstein, supra; 420 East 80th Co. v Chin, 97 AD2d 390.) To hold otherwise would render meaningless the protections intended to be afforded by law to such persons, for it will be the rare case where there are no minor technical violations of a lease which under a strict interpretation of subdivision A of section 53 would allow landlords to evict their tenants. We note that even petitioner landlord does not urge that we read the Code so rigidly.

In this case, we hold that by conducting her entire professional counseling practice in the apartment, tenant has significantly departed from a substantial obligation of her tenancy. The apartment complex in which tenant’s apartment is located consists of 2,521 units, all but one of which is leased exclusively for residential purposes. Tenant, however, conducts a psychotherapy practice in her apartment and has constructed a fioor-to-ceiling partition to provide a separate area in her living room in which to counsel patients. Tenant concedes that she counsels approximately two to four patients each day or 15-22 patients per week at the apartment and that the apartment serves as her sole place of business. Tenant derives a substantial portion of her income from this practice. Certainly, the landlord upon signing the lease could reasonably expect that tenant would use the apartment for residential purposes and not conduct a full-time clinical psychology practice on the premises. This is especially so in light of the fact that tenant’s apartment is merely one of 2,520 such apartments in landlord’s residential housing complex. It cannot be seriously disputed that tenant’s use of the apartment as the sole situs of her psychotherapy practice is completely at odds with the character of the complex as a whole.

Consequently, tenant’s counseling practice cannot be characterized as a technical or de minimis violation of the restrictive covenant. The covenant was concededly a substantial obligation of the tenancy and tenant’s extensive professional use of the premises constitutes a significant violation of that obligation. As a result, possession of the apartment should be awarded to landlord subject only to the parties’ stipulation.

Accordingly, the order of the Appellate Division should be reversed, with costs, and possession of the subject premises be awarded to petitioner, subject to any stipulation entered into by the parties.

Chief Judge Cooke and Judges Jones Wachtler, Meyer, Simons and Kaye concur.

Order reversed, etc.

      . Subdivision A of section 53 of the Rent Stabilization Code provides, in full, that:
      “SECTION 53. GROUNDS FOR EVICTION
      “Except where the tenant fails to pay the stabilization rent, an action or proceeding to recover possession of any dwelling unit shall be maintainable in a court of competent jurisdiction only upon one or more of the grounds specified in the Real Property Actions and Proceedings Law or on one of the following grounds as determined by such court:
      “A. Violation of tenancy. The tenant is violating a substantial obligation of his tenancy other than the obligation to surrender possession of such dwelling unit and has failed to cure such violation after written notice by the owner that the violation cease within ten days; or within the three-month period immediately prior to the commencement of the proceeding the tenant has willfully violated such an obligation inflicting serious and substantial jnjury upon the owner”.

      . One ground floor apartment is specifically leased for professional purposes.

      . As to tenant’s reliance upon Matter of Park East Land Corp. v Finkelstein (299 NY 70) for the proposition that the landlord must demonstrate “actual harm”, we note simply that proof of actual harm or lack thereof was only one of the many factors that was considered by the court in that case.


author: Per Curiam.

text:
    In the Matter of the Arbitration between Douglas S. Liebhafsky et al., Appellants, and Comstruct Associates, Inc., Respondent.
    Decided July 5, 1984

      APPEARANCES OF COUNSEL

      Steven M. Barna and Barbara Robbins for appellants.

      Warren D. Wynshaw for respondent.
   OPINION OF THE COURT

Per Curiam.

The question presented on this appeal is whether a contractor, whose services have been terminated by the property owner for substantial breach of the contract, must submit his claim for “change order adjustments” to the architect as a condition precedent to arbitration under the “General Conditions of the Contract for Construction” of the American Institute of Architects incorporated in the construction contract. The Supreme Court held that submission to the architect was not required and denied the owner’s application to stay arbitration. The Appellate Division affirmed, with two Justices dissenting. The owners have appealed as of right on the basis of the dissent.

This case involves a variation on the issue decided in Matter of County of Rockland (Primiano Constr. Co.) (51 NY2d 1). In Primiano we held that under the “General Conditions”, the “authority of the architect is centered on the operational phases of construction” and thus a “claim * * * for delay damages, asserted some two years after substantial completion of the project and occupation of the building” need not be submitted to the architect as a condition precedent to arbitration (51 NY2d, p 11). The variation presented by the case now before us is whether the same principle should apply when the contractor’s services have terminated, not because of substantial completion of the contract, but on the ground that the contractor has substantially violated its terms.

Under article 2 of the General Conditions of the Contract for Construction, the architect’s role as mediator, to whom all disputes “relating to the execution or progress of the Work or the interpretation of the Contract Documents shall be referred initially”, is but one aspect of the architect’s general responsibility to supervise the contract in order to expedite its completion. The essence of our decision in Matter of County of Rockland (Primiano Constr. Co.) (supra) is that this role terminated once the architect is no longer responsible for supervising the contractor’s performance. Whether the contractor’s services have terminated because of substantial completion of the work or on the ground that he has substantially violated the terms of the contract is not controlling. In either instance the architect’s responsibility to supervise the contractor’s performance and, by extension initially mediate his disputes, is at an end.

The obligation imposed on the architect pursuant to section 14.2.1 is essentially unrelated to this problem. That section simply imposed on the architect the residual responsibility of certifying the amount, if any, to be paid to the discharged contractor or the owner as a result of the work done prior to the contractor’s discharge. It does not expressly require the architect to resolve disputes or assume the role of an on-the-spot mediator for discharged contractors in order to help expedite completion of the project. Indeed under the terms of article 14 such a calculation would not be made until the project has been completed. There is therefore no basis for concluding that the calculation to be performed by the architect pursuant to section 14.2.2 was intended to serve as a condition precedent to arbitration.

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

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in Per Curiam opinion.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs.


author: Wachtler, J.

text:
    Ronald Koerner, Appellant, v State of New York, Pilgrim Psychiatric Center et al., Respondents.
    Argued June 5, 1984;
    decided June 29, 1984

      POINTS OF COUNSEL

      Alan J. Azzara and David Baram for appellant.
    I. The Court of Appeals has jurisdiction over this appeal. II. The court below incorrectly upheld the dismissal of the complaint as untimely. (Murphy v American Home Prods. Corp., 58 NY2d 293; Cheselka v Eastern Air Lines, 93 Mise 2d 219; Matter of State Dept, of Correctional Servs. v State Div. of Human Rights, 88 AD2d 1061.) III. The courts below incorrectly dismissed appellant’s cause of action for lack of subject matter jurisdiction. (Bowen v State Bd. of Social Welfare, 55 AD2d 235, 45 NY2d 402; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Board ofEduc. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673; Matter of Board Educ. v Carter, 14 NY2d 138; State Div. of Human Rights v State Dept, of Mental Hygiene, 85 AD2d 915; Matter of Silverman v Comptroller of State ofN. Y., 40 AD2d 225.)

      Robert Abrams, Attorney-General {John Q. Driscoll and Peter H. Schiff of counsel), for respondents.
    Civil actions against the State in the Supreme Court alleging wrongful termination or refusal to hire and demanding restoration with back pay, are subject to the time limitations of CPLR 217. Monetary damages, other than recovery of lost wages and expenses, are not recoverable against the State in such action. CMurphy u American Home Prods. Corp., 58 NY2d 293; Cheselka v Eastern Air Lines, 93 Mise 2d 219; Matter of State Dept, of Correctional Serus. v State Div. of Human Rights, 88 AD2d 1061; State Div. of Human Rights v State Dept, of Mental Hygiene, 85 AD2d 915; State Div. of Human Rights v Commissioner of State Dept, of Civ. Serv., 57 AD2d 699; Schaffer v Evans, 86 AD2d 708, 57 NY2d 992; Bank of N. Y. v Tully, 84 AD2d 704; Seidelman v State of New York, 202 Mise 817; Matter ofSchatzel v Connelie, 91 AD2d 1123; Matter of Miller v Ravitch, 60 NY2d 527.)

      Roberto Albertorio and Ann Thacher Anderson for State Division of Human Rights, amicus curiae.

    I. The court below erred in upholding dismissal of the complaint as untimely. {Murphy v American Home Prods. Corp., 58 NY2d 293; Matter of Board of Higher Edue. v Carter, 14 NY2d 138; Matter of Burke v Sugarman, 35 NY2d 39.) II. The court below erred in concluding that discrimination by the State in barring or discharging a worker from employment is privately actionable only under CPLR article 78. {Matter of Board of Higher Edue. v Carter, 14 NY2d 138; Murphy v American Home Prods. Corp., 58 NY2d 293; Alexander v Gardner-Denver Co., 415 US 36.) III. The court below erred in holding Supreme Court to lack jurisdiction over the complaint. {State Div. of Human Rights v State Dept, of Correctional Servs., 90 AD2d 51.)
   OPINION OF THE COURT

Wachtler, J.

This appeal concerns the nature of the procedural limitations applicable to civil actions brought against the State pursuant to the Human Rights Law (Executive Law, art 15). Specifically, we are asked to determine what Statute of Limitations is applicable to such claims, and whether the plaintiff in such actions must pursue a claim for monetary relief in the Court of Claims.

Plaintiff applied for a position as a food service worker at the Pilgrim State Psychiatric Center, a facility under the jurisdiction of the New York State Department of Mental Hygiene. He alleges that he was hired in that capacity in April of 1981, but that his employment was immediately terminated as a result of a medical examination which he failed because of his poor vision. Claiming that his medical condition would not impair his ability to work, plaintiff commenced this action by service of a summons and complaint in February of 1982 seeking reinstatement, back pay, and damages for embarrassment, humiliation and mental and emotional distress. The complaint alleges that defendants improperly terminated plaintiff on the basis of his physical disability, in violation of the Human Rights Law (Executive Law, § 296).

Defendants moved to dismiss the complaint on the grounds that the four-month Statute of Limitations (CPLR 217) applicable to plaintiff’s action had expired, and that the court was without subject matter jurisdiction over a claim for monetary relief against the State which can only be sued for in the Court of Claims. Special Term granted the motion, holding that the four-month Statute of Limitations is applicable, inasmuch as the determination challenged by plaintiff is reviewable in an article 78 proceeding, and that plaintiff’s action was thus time barred. The court also concluded that plaintiff’s claim for money damages could only be pursued in the Court of Claims, because the State had not consented to suit elsewhere. The Appellate Division affirmed, without opinion. The appeal is before us by leave of this court.

The State Division of Human Rights (Division), created by section 293 of the Executive Law, is empowered to receive, investigate, and pass upon complaints alleging violations of the Human Rights Law (Executive Law, § 295, subd 6). The procedure governing the administrative handling of such complaints expressly provides that filing must take place “within one year after the alleged unlawful discriminatory practice” (Executive Law, § 297, subd 5). In addition to establishing an administrative forum to redress unlawful discriminatory practices, the Legislature provided the aggrieved person with a cause of action “in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate” (Executive Law, § 297, subd 9). Although the statute specifies no time frame within which such a cause of action must be commenced, we recently addressed that very question in Murphy v American Home Prods. Corp. (58 NY2d 293). We held that the institution of a civil action to recover damages pursuant to the Human Rights Law for discriminatory discharge by a private employer is governed by the three-year Statute of Limitations contained in CPLR 214 (subd 2), inasmuch as the action was one to recover upon a liability created by statute (id., at p 307).

The State defendants contend that our decision in Murphy does not state the appropriate Statute of Limitations for an unlawful discrimination action against the State. Fully conceding the applicability of the Human Rights Law to it (Matter of State Dept. of Correctional Servs. v State Div. of Human Rights, 88 AD2d 1061; State Div. of Human Rights v State Dept. of Mental Hygiene, 85 AD2d 915; see City of Schenectady v State Div. of Human Rights, 37 NY2d 421 [“public employers” are not excluded from sanctions under the Human Rights Law]; Board of Educ. v State Div. of Human Rights, 42 AD2d 49, affd on opn below 35 NY2d 673 [same]), the State nevertheless asserts that the Legislature never intended to place the State as an employer upon the same footing as private employers for purposes of litigation under the Human Rights Law. Relying on the cases of Solnick v Whalen (49 NY2d 224) and Press v County of Monroe (50 NY2d 695), the State urges that the four-month Statute of Limitations applicable to a proceeding against a body or officer (CPLR 217) must be applied to the present action.

The cases cited, however, do not support the theory propounded by the State. Both cases involved efforts to have reviewed, by way of declaratory judgment action, determinations of governmental entities. As there is no specific Statute of Limitations for a declaratory judgment action, plaintiffs sought to obtain the benefit of the six-year period of CPLR 213 (subd 1) (action for which no limitation is specifically prescribed by law). The rule announced in those cases is that the limitations period applicable to a declaratory judgment action is that applicable to the alternative form of proceeding, if any, available for resolution of the rights sought to be adjudicated in the action. Thus, where the declaratory judgment action was brought to challenge the Commissioner of Health’s retroactive adjustment of Medicaid reimbursement rates (Solnick v Whalen, 49 NY2d 224, supra), or the county legislature’s adoption of the assessment rolls of a sewer district (Press v County of Monroe, 50 NY2d 695, the determinations sought to be reviewed were capable of resolution by way of article 78 proceeding, and the four-month limitations period was applicable. Because such a time limitation was prescribed, plaintiffs could not avail themselves of the six-year period provided by CPLR 213 (subd 1), which is applicable only when no other period is specifically provided.

The rule set forth in Solnick and Press does not require, as the State seems to argue, that all proceedings challenging State actions be commenced within four months. When a specific limitations period is clearly applicable to a given action, there is no need to ascertain whether another form of proceeding is available for resolution of the dispute. As we held in Murphy, a judicial action for discriminatory discharge commenced pursuant to the Human Rights Law is governed by a three-year Statute of Limitations; we need look no further to determine whether a shorter period might be applicable had plaintiff attempted to have his rights adjudicated by some other procedure.

Nor do we find any merit in the State’s contention that the Legislature intended to afford more favorable treatment to the public employer where a claim of unlawful discrimination is concerned. Indeed, the Legislature, in enacting the Human Rights Law, specifically found that “the state has the responsibility to act to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care, not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants” (Executive Law, § 290, subd 3). Clearly, the elimination of discrimination in the provision of basic opportunities is the predominant purpose of this legislation; all the more invidious is such discrimination when it is practiced by the State. We cannot discern any intent on the part of the Legislature to subject the injured person to a shorter limitations period when the wrong was committed by the State. Thus, the courts below erred in dismissing plaintiff’s complaint as time barred, as the action was commenced well within the applicable three-year Statute of Limitations.

Defendants also urge as a ground for dismissal that Supreme Court is without subject matter jurisdiction over plaintiff’s claim for monetary relief against the State. When the State waives its immunity to suit, it may, of course, limit the right to maintain that suit to a given forum (Breen v Mortgage Comm., 285 NY 425). For the most part, this State’s waiver of immunity as to actions for money damages is limited to actions commenced in the Court of Claims (Court of Claims Act, §§ 8, 9). The question in the present case is whether the Legislature intended to limit the injured party to prosecuting a damages claim for unlawful discrimination in the Court of Claims. Defendants point out that the statute itself contains no express waiver of the requirement and urge that the mere creation of a cause of action should not be viewed as consent to suit in another forum.

As noted above, the State is clearly subject to the provisions of the Human Rights Law. It has been held, moreover, that the State Division of Human Rights may award compensatory damages against the State as employer, and that such an award may be enforced without recourse to the Court of Claims (State Div. of Human Rights v State Dept. of Correctional Servs., 90 AD2d 51; Matter of State Dept. of Correctional Servs. v State Div. of Human Rights, 88 1061, supra; State Div. of Human Rights v State Dept. of Mental Hygiene, 85 AD2d 915, supra; 1980 Opns Atty Gen 35). In granting the Division power to award compensatory damages against an employer (Executive Law, § 297, subd 4, par c), the Legislature must be deemed to have waived both the State’s immunity to suit and the requirement that it be sued in the Court of Claims. That being so, we can find no justification for concluding that a different rule should be applicable to judicial actions commenced against the State. In light of the Legislature’s admonition that the provisions of the Human Rights Law must be construed liberally for the accomplishment of their purposes (Executive Law, § 300; see New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316, 324; City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 428, supra), we conclude that the Legislature has provided implicit consent that the State be sued in a forum other than the Court of Claims. Inasmuch as the Court of Claims has no power to order such equitable relief as reinstatement (e.g., Psaty v Duryea, 306 NY 413, 416-417), a contrary conclusion would lead to the manifestly unfair result of requiring the person against whom the State has unlawfully discriminated to institute separate lawsuits to fully redress the wrong committed. Given the broad, ameliorative purposes of the Human Rights Law, we cannot ascribe such an intent to the Legislature.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye concur.

Order reversed, etc.