author: Simons, J.

text:
    New York State Public Employees Federation, AFL-CIO, by its President Rand Condell, et al., Respondents, v City of Albany et al., Appellants. (And Another Action.)
    Argued May 31, 1988;
    decided June 30, 1988

      POINTS OF COUNSEL

      Vincent J. McArdle, Jr., Corporation Counsel (Madeleine D. Maney of counsel), for appellants.
    I. The City of Albany is authorized by the Vehicle and Traffic Law to enact a residential prepaid permit parking system. (Matter of Blindless Headlight Protector v Harnett, 138 Misc 127; Merritt Manor Estates v Village of Elmsford, 30 Misc 2d 935; Wakeman v Wilbur, 147 NY 657; Lyman v Village of Potsdam, 228 NY 398; Arlington County Bd. v Richards, 434 US 5; Friedman v Beame, 558 F2d 1107; Matter of Scime v County Legislature, 90 Misc 2d 764; People v Gilbert, 307 NY 773; People v Kraushaar, 195 Misc 487.) II. The decision of the court below curtails a municipality’s power under the Vehicle and Traffic Law to regulate traffic as local conditions require. (Matter of Blindless Headlight Protector v Harnett, 138 Misc 127; People v President & Trustees of Vil. of Ossining, 238 App Div 684, 264 NY 574; People v City of Buffalo, 152 Misc 375.) III. The classifications in the City’s ordinance are reasonably related to a legitimate governmental interest. (Arlington County Bd. v Richards, 434 US 5; Good Humor Corp. v City of New York, 290 NY 312; People v Finch, 88 Misc 2d 581.) IV. A residential restriction is limited in that it is determined by a standard relative to public safety. V. Legislative history and inaction may not be resorted to in statutory interpretation of Vehicle and Traffic Law § 1640 (a) (15). (Matter of Smathers, 309 NY 487; Matter of Shea v Falk, 10 AD2d 142, 8 NY2d 1071; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.)

      Rebecca L. Caudle and Richard E. Casagrande for New York State Public Employees Federation, AFL-CIO, and others, respondents.
    I. The City of Albany ordinance violates section 1604 of the Vehicle and Traffic Law. (People v De Jesus, 54 NY2d 465; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327, 12 NY2d 998; City of New York v Rice, 198 NY 124; People v Grant, 306 NY 258; People v City of Hornell, 256 App Div 113, 282 NY 555; People v Randazzo, 60 NY2d 952; Farrell v City of Syracuse, 137 Misc 472; Gilsey Bldgs. v Incorporated Vil. of Great Neck Plaza, 170 Misc 945, 258 App Div 901; People v Kerr, 27 NY 188.) II. The court below correctly determined that Vehicle and Traffic Law § 1604 (a) (15) does not authorize the City of Albany to establish a residential prepaid parking permit system. (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Roth v Michelson, 55 NY2d 278; Rankin v

      Shanker, 23 NY2d 111; Pajak v Pajak, 56 NY2d 394.) III. The court below correctly determined that Vehicle and Traffic Law § 1640 (a) (6) and (16) do not authorize the challenged ordinance. (People v Grant, 306 NY 258; People v Randazzo, 60 NY2d 952; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471.) IV. Whether the ordinance is reasonable or unconstitutional is irrelevant to the issue of whether statutory authority exists for the ordinance. (Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 106 AD2d 830, 66 NY2d 444; Arlington County Bd. v Richards, 434 US 5; Persky v Bank of Am. Natl. Assn., 261 NY 212.)

      Jeffrey Armstrong and Marjorie E. Karowe for C. Allen Mead and another, respondents.
    I. Defendants’ enactment of Ordinance No. 5.11.86 is illegal and without any authority under the Vehicle and Traffic Law. (People v Grant, 306 NY 258; People v Randazzo, 60 NY2d 952; City of New York v Rice, 198 NY 124; Farrell v City of Syracuse, 137 Misc 472; Gilsey Bldgs. v Incorporated Vil. of Great Neck Plaza, 170 Misc 945.) II. No constitutional argument is at issue herein. (Arlington County Bd. v Richards, 434 US 5.)

      Louis N. Kash, Corporation Counsel (Jeffrey Eichner of counsel), for City of Rochester, amicus curiae.

    The Vehicle and Traffic Law does authorize residential parking programs. (People v Grant, 306 NY 258; People v Randazzo, 60 NY2d 952; Bakery Salvage Corp. v City of Lackawanna, 24 NY2d 643, 1025; White Plains Automotive Supply Co. v City of Peekskill, 68 NY2d 933; People v George, 280 NY 843; Matter of Barton Trucking Corp. v O’Connell, 7 NY2d 299; Lighthouse Shores v Town of Islip, 41 NY2d 7; Town of N. Hempstead v Exxon Corp., 53 NY2d 747; Arlington County Bd. v Richards, 434 US 5; Friedman v Beame, 558 F2d 1107.)
   OPINION OF THE COURT

Simons, J.

Plaintiffs challenge the validity of Albany City Ordinance No. 5.11.86 which creates a program allowing residents of certain areas of the City of Albany who purchase permits to park in their neighborhoods for periods of unlimited duration but restricts nonresident parking in such areas during weekday business hours to 90 minutes. The ordinance patently discriminates against nonresidents and violates statutory and common-law rules which, we conclude, the City could not modify under existing authority. The ordinance is therefore ultra vires and void.

I

Albany residents have for some time complained about parking problems created by the influx of nonresident State employees who work in the downtown area. The situation has been particularly troublesome during business hours when employees sought free parking in residential districts to avoid parking lot charges and by doing so prevented residents from parking near their homes. Residents were also concerned about safety, noting that the shortage of parking space had become so exacerbated that there was a competitive scramble between drivers for spaces in their neighborhoods.

Responding to these complaints, the City enacted Ordinance No. 5.11.86 (Albany City Code, ch XXV, div 9, §§ 25-114 — 25-118) vesting discretion in the Albany Chief of Police to designate areas as "prepaid parking permit areas”. It is clearly based upon the Arlington County, Virginia, statute which withstood constitutional challenge in Arlington County Bd. v Richards (434 US 5, reh denied 434 US 976). The ordinance provides that residents of parking permit areas may purchase two permits per household for an annual fee of $17.50 each entitling them to unlimited parking in their neighborhoods. They may also obtain permits for their guests, free of charge if they purchased a permit for themselves, or for $2.50 if they did not. Nonresidents, on the other hand, may park in designated areas only for 90 minutes Monday through Friday between the hours of 7:00 a.m. to 6:00 p.m. (excluding holidays) and are subject to a $15 fine for overtime parking.

After the ordinance was passed, plaintiffs, two public employee unions, and several of their individual members, commenced this action to enjoin enforcement of the ordinance and to have it declared void. Supreme Court upheld the ordinance but the Appellate Division reversed, concluding that because it discriminated against nonresidents, the statute was invalid. We granted leave to appeal and now affirm.

II

The general delegation of power to localities allowing them to regulate the highways within their boundaries is contained in article IX, § 2 (c) (6) of the New York Constitution, Municipal Home Rule Law § 10 and Vehicle and Traffic Law § 1604. The Legislature retains ultimate control over the highways, however, and these provisions are expressly made subject to its power to restrict localities and ensure uniform highway regulation throughout the State. Pertinent here are sections 1600 and 1604 of the Vehicle and Traffic Law, which prohibit localities from excluding persons from free use of the highways except to the extent such limitations are expressly authorized by statute. Case law makes clear the types of exclusions foreclosed by these statutes and reveals that in the absence of specific authorization from the Legislature, restrictions on highway use based upon residency — such as that found in the contested ordinance — are prohibited.

Historically, English highways were said to be the King’s and impeding their use was proscribed for his right was one of passage for himself and for his subjects (see, Town of Galen v Clyde & Rose Plank Rd. Co., 27 Barb 543, 551; see also, Cohen v Mayor of City of N. Y., 113 NY 532, 536). Tailoring the English rule to democratic concepts, the common law in New York has restricted local regulation by impressing a public trust upon the streets. The right to use of the highways is said to rest with the whole people of the State, not with the adjacent proprietors or the inhabitants of the surrounding municipality (People v Kerr, 27 NY 188, 199; accord, City of New York v Rice, 198 NY 124, 128). This public right is " 'absolute and paramount’ ” (Cities Serv. Oil Co. v City of New York, 5 NY2d 110, 115, rearg denied 5 NY2d 1041, cert denied 360 US 934; Deshong v City of New York, 176 NY 475, 484). Thus, in People v Grant (306 NY 258, 262), we struck down an ordinance which prohibited transient or through traffic in the Village of New Hyde Park, reasoning that from the common-law proscription it "follows that residents of a particular area in a town or village do not possess and cannot be granted proprietary rights to the use of the highways therein in priority to or exclusive of use by the general public” (see also, People v Randazzo, 60 NY2d 952; Wiggins v Town of Somers, 4 NY2d 215, 218, remittitur amended 4 NY2d 1045, rearg denied 4 NY2d 1046; Atlantic Beach Prop. Owners’ Assn. v Town of Hempstead, 3 NY2d 434, 440, rearg denied 3 NY2d 942).

Noting that our decisions have generally involved traffic restrictions, the City maintains that the common-law rule should only be construed as prohibiting distinctions between residents and nonresidents for matters involving travel; that distinctions may be drawn for parking matters. Neither the case law nor the Vehicle and Traffic Law is so limited, however; both proscribe restrictions on highway "use”, which includes use for parking as well as travel purposes. The general rule is clear: residents of a community have no greater right to use the highways abutting their land— whether it be for travel or parking — than other members of the public and Albany City Ordinance No. 5.11.86, which confers special parking advantages to residents of certain neighborhoods, violates this proscription. The Legislature is free to create exceptions to the general rule or delegate the power to do so to the localities (see, Vehicle and Traffic Law § 1604; see also, Mobil Oil Corp. v Incorporated Vil. of Roslyn Harbor, 69 Misc 2d 79, 84 [Meyer, J.]) but we conclude that it did neither here.

Ill

The City contends that any of three provisions of the Vehicle and Traffic Law supersede the general rule and authorized its enactment of this ordinance. It relies on subdivision (a) (6), (15) and (16) of section 1640. None of them authorize Ordinance No. 5.11.86.

Paragraph (6) generally authorizes local parking restrictions such as the 90-minute time limit found in the contested ordinance. It does not, however, permit discrimination between residents and nonresidents, a distinction forbidden at common law (see also, Vehicle and Traffic Law § 1200 [indicating parking restrictions should be applied to "persons” generally, and containing no authorization to treat residents and nonresidents differently]). Nor should the power to do so be implied for it is apparent that when the Legislature has intended to authorize exceptions to the general rule, it has done so expressly (see, e.g., § 1640 [a] [17] [sanctioning special parking privileges for handicapped persons]).

Nor does paragraph (15) serve as a basis for the ordinance. It empowers the City of Albany to enact a prepaid parking permit program, but not one which confers preferred status to those in the community. The language of the statute makes no mention of a distinction between residents and nonresidents and the legislative history reveals that the purpose of the statute was simply to allow Albany to phase out parking meters in favor of a permit plan because meters are costly, interfere with refuse and snow removal and are often vandalized (see, e.g., Mem in support of legislation, Bill Jacket, L 1979, ch 435).

The City’s reliance upon the catchall or omnibus provision contained in paragraph (16) is similarly misplaced. Paragraph (16) authorizes enactment of "reasonable” local highway regulations but local restrictions generally are deemed reasonable only if they pertain to matters of public safety (7 McQuillin, Municipal Corporations §24.610 [3d rev ed]). More importantly, the authority conferred under paragraph (16) is expressly made "subject to the limitations contained in the various laws of this state” and our decisions have narrowed its scope even further.

In People v Grant (306 NY 258, supra) we considered a similar omnibus clause in section 90 (4) of the predecessor statute. The prior statute, like the modern version, prohibited exclusions limiting the People’s right to use the streets unless the exclusion was specifically authorized. We expressed concern in Grant that if all "reasonable” regulations were authorized by the catchall, the proscription against excluding persons from using the highways could be swallowed by the omnibus clause. In that case the challenged ordinance precluded nonresidents from traveling through the Village of New Hyde Park. In a broad sense the ordinance fostered the reasonable purpose of ensuring tranquility within the village, but this "reasonable” restriction was the very type at which the proscription against exclusionary rules was directed. To prevent the omnibus clause from overriding the paramount purpose of the statute, we indicated the "reasonableness” of local enactments would be judged "by comparing them with the particular powers that were delegated expressly [to the localities] by the other subdivisions” of the Vehicle and Traffic Law (id., at 263). Doing so, we held that excluding nonresidents from traveling through New Hyde Park was not "reasonable” within the meaning of the omnibus provision because it was a "more drastic” restriction than those specifically permitted (People v Grant, supra). From the Grant analysis both the majority and dissenting members of this court concluded in People v Randazzo (60 NY2d 952, 953, supra) that the omnibus provision only authorizes rules which are "reasonable and nondiscriminatory” ([emphasis added] citing 7 McQuillin, Municipal Corporations, op. cit., § 24.618).

These judicial limitations of the omnibus paragraph defeat the City’s reliance upon it here. Paragraph (16) does not authorize regulations at odds with the laws of the State and our common law forbids according local residents priority in the use of the public streets. Moreover, no provision in section 1640 differentiates between residents and nonresidents, and such a "drastic” distinction should not be upheld based upon the omnibus provision. Finally, because the ordinance patently excludes nonresidents it violates the prohibition against discriminatory restrictions.

IV

Two of the City’s remaining contentions require comment.

First, the City stresses the similarities between its plan and that upheld against constitutional challenge by the Supreme Court in Arlington County Bd. v Richards (434 US 5, supra). However, whether the contested plan could be enacted consistent with the Federal Constitution is not at issue here. The question is one of power. While the Legislature could delegate to the localities power to enact such a plan, it has not done so and the ordinance is ultra vires.

The City also relies upon People ex rel. Village of Larchmont v Gilbert (137 NYS2d 389) and White Plains Automotive Supply Co. v City of Peekskill (115 AD2d 728, affd 68 NY2d 933, appeal dismissed 481 US 1026). Gilbert involved the designation of off-street parking for residents, and thus, unlike this case did not entail use of the public streets. White Plains Automotive upheld a traffic ordinance restricting access to residential streets to vehicles under 27 feet in length because the ordinance was reasonable under the facts of that case and, more importantly, because Vehicle and Traffic Law § 1640 (a) (5) specifically authorizes excluding trucks from local highways. Such specific authorization is lacking here.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

       Vehicle and Traffic Law § 1640 (a) (6), (15) and (16) provide:
      "(a) The legislative body of any city or village, with respect to highways * * * in such city or village * * * may by local law, ordinance, order, rule or regulation:
      "6. Prohibit, restrict or limit the stopping, standing or parking of vehicles * * *
      "15. Provide for the establishment, operation, policing and supervision of a prepaid parking permit system, establishing parking time limits for such permits and fix and require the payment of fees applicable to parking where such a prepaid permit parking system is in operation * * * The provisions of this paragraph shall only be applicable for the city of Albany.
      "16. Adopt such additional reasonable local laws, ordinances, orders, rules and regulations with respect to traffic as local conditions may require subject to the limitations contained in the various laws of the state.”


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    Blanche B. Rainbow, Respondent, v Gerald W. Swisher, Appellant.
    Argued June 1, 1988;
    decided July 6, 1988
    POINTS OF COUNSEL

      David P. Martin for appellant.
    I. The stipulation of settlement is unenforceable since the parties intended it to merge in the divorce decree. (Jensen v Jensen, 110 AD2d 679; Jaeckel v Jaeckel, 179 Misc 994; McMains v McMains, 15 NY2d 283; Matter of Moller, 157 Misc 338; Matter of Hall v Hall, 82 Misc 2d 814, 55 AD2d 752; Nicoletti v Nicoletti, 43 AD2d 699; Matter of Fishman v Fisher, 77 AD2d 596; Avella v Avella, 74 AD2d 592; Matter of Lynch v Pierce, 60 AD2d 930; Matter of Boden v Boden, 42 NY2d 210.) II. Appellant may collaterally attack the divorce decree. (Nopper v Nopper, 50 NY2d 1009; Kleila v Kleila, 50 NY2d 277; MacDonald v MacDonald, 73 AD2d 958; Goldman v Goldman, 69 AD2d 758; Chanin v Chanin, 59 AD2d 671.) III. The divorce decree should be corrected to provide that the stipulation merged with the decree, and thus, did not survive the decree. (Crain v Crain, 109 AD2d 1094; Fehlhaber Corp. v State of New York, 64 Misc 2d 167, 40 AD2d 881.)

      Barry R. Hill for respondent.
    I. Where an ambiguity exists between a clause in a stipulation of settlement and a provision in a judgment of divorce, the remedy is appeal and the judgment cannot be collaterally attacked. (Chanin v Chanin, 59 AD2d 671; Goldman v Goldman, 69 AD2d 758; MacDonald v MacDonald, 73 AD2d 958; Nopper v Nopper, 72 AD2d 827, 50 NY2d 1009.) II. Whether the parties intended the stipulation of separation to merge and not survive or not merge and survive in the judgment of divorce was an issue resolved by the trial court in favor of plaintiff for nonmerger and survival. (Arnold v State of New York, 108 AD2d 1021; Strauf v Ettson Enters., 106 AD2d 737; Matter of McCarthy v Braiman, 125 AD2d 572; Sureau v Sureau, 305 NY 720; Tamas v Tamas, 47 AD2d 686.) II. The conflict of whether or not the stipulation of settlement shall survive or not survive the judgment of divorce must be construed against defendant. (Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342.) IV. Defendant’s position at the time of trial that the stipulation of settlement shall be merged in the judgment of divorce is totally inconsistent with his prior positions. V. Defendant is estopped from seeking to disregard the terms of the judgment of divorce. (Horn v Bennett, 253 App Div 630; Tamas v Tamas, 47 AD2d 686.) VI. The ambiguity existing between the stipulation of settlement and judgment of divorce is not a mistake, defect or irregularity to warrant a correction via CPLR 5019 (a). (Herpe v Herpe, 225 NY 323.)
   OPINION OF THE COURT

Kaye, J.

A judgment of divorce entered by a court with subject matter and personal jurisdiction is not, in the circumstances presented, open to later collateral attack on the ground that the judgment erroneously failed to embody the terms of the parties’ settlement agreement regarding merger of the agreement into the decree. Given the nature of the alleged error and the parties’ long reliance on the judgment, defendant husband cannot now challenge its accuracy.

After 23 years of marriage and six children, plaintiff began an action in Supreme Court for divorce, which was contested by defendant. Before trial actually commenced, on May 3, 1978 the parties — both represented by counsel — signed a stipulation of settlement, whereby defendant withdrew his answer and agreed to allow plaintiff to obtain a judgment of divorce. The agreement settled the rights of the parties with respect to child custody, visitation, child support, alimony, property division and other economic incidents of the marriage, including health and life insurance. The final paragraph provided that it "shall be submitted to the Justice presiding at the matrimonial action part and that such Stipulation and Agreement shall become incorporated into and shall merge into any Judgment of Divorce granted to the parties herein.” Nevertheless, the judgment of divorce issued by Supreme Court some five weeks later provided, in one of its decretal paragraphs, "that the terms of the written stipulation of settlement, dated May 3, 1978, relating to custody, visitation, support and alimony, and signed by the parties shall be incorporated, but shall not merge, in this decree.” Neither party made any objection to the judgment or took an appeal. Indeed, in subsequent proceedings against each other in New York and in Connecticut, both parties relied on the judgment without questioning its validity or accuracy.

In 1983, plaintiff commenced the present breach of contract action to recover arrears in child support and alimony due under the settlement agreement. Defendant’s answer, dated February 1984, contained denials and affirmative defenses, but in no way disputed the judgment itself. Two years later, in response to plaintiffs amended complaint claiming additional arrears through February 1986, defendant for the first time asserted, as an affirmative defense, that the intent of the parties, as expressed in the stipulation of settlement, was to merge the agreement into any subsequent divorce decree, and that the agreement therefore did not survive the decree as a separately enforceable contract. Following a bench trial, Supreme Court awarded judgment against defendant, concluding that the present action could be maintained under the terms of the settlement agreement. Rejecting defendant’s argument that the agreement was unenforceable by its own terms, the court held that the judgment of divorce provided otherwise, that the divorce court had jurisdiction over the parties, and that its ruling on the effect of the settlement agreement was final and binding. The Appellate Division affirmed, without opinion, and this court granted leave to appeal. We now affirm.

The settlement agreement upon which the present action is based states that it was to merge into any judgment of divorce later granted to these parties. If merged, the agreement would cease to exist as a separately enforceable contract (see, McMains v McMains, 15 NY2d 283, 287; Jaeckel v Jaeckel, 179 Misc 994, 997; 2 Foster and Freed, Law and the Family, New York § 28:53, at 462-463 [1966]). If not merged, the agreement may survive as a basis for suit, independent of other available procedures for enforcing the decree (see, Merl v Merl, 67 NY2d 359, 362; Goldman v Goldman, 282 NY 296; see also, 1 Tippins, New York Matrimonial Law and Practice § 8:06, at 20 [1986]).

Supreme Court apparently viewed the merger issue as one of fact. The court found, after trial, that there was "insufficient evidence” to warrant a finding that it was the parties’ intent to merge the settlement agreement into any subsequent judgment of divorce. Plaintiff urges that this finding, affirmed by the Appellate Division and supported by the record, alone compels affirmance (see, Humphrey v State of New York, 60 NY2d 742, 743-744). We disagree. The settlement agreement is a contract subject to principles of contract interpretation (Clayburgh v Clayburgh, 261 NY 464, 469; Matter of Baker v Baker, 33 AD2d 812). Where, as here, the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence (Nichols v Nichols, 306 NY 490, 496; see also, Chimart Assocs. v Paul, 66 NY2d 570). There being no ambiguity in this contract with respect to the intent of the parties that the settlement agreement should merge into the divorce decree, we proceed to consider the legal question whether the judgment is subject to collateral attack by defendant based on the divorce court’s alleged error in reciting that the agreement did not merge into the judgment.

In general, a final judgment of divorce issued by a court having both subject matter and personal jurisdiction has the effect of determining the rights of the parties with respect to every material issue that was actually litigated or might have been litigated (see, Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307; Marinelli v Marinelli, 88 AD2d 635, 636; D’Auria v D’Auria, 200 Misc 939, 942; 1 Foster, Freed and Brandes, Law and the Family, New York § 6:38, at 512 [2d ed 1987]). Consequently, where there is a conflict between a settlement agreement and the decretal provisions of a later divorce judgment, the judgment will govern (see, e.g., Greschler v Greschler, 51 NY2d 368, 376; Lynn v Lynn, 302 NY 193, 201-203, cert denied 342 US 849; Okun v Okun, 66 Misc 2d 241, 242). Moreover, absent unusual circumstances or explicit statutory authorization, the provisions of the judgment are final and binding on the parties, and may be modified only upon direct challenge (D’Auria v D’Auria, supra; 47 NY Jur 2d, Domestic Relations, § 1218, at 855).

Applying these general principles, defendant’s failure to seek modification of, or to appeal, the judgment of divorce bound him to its terms, including the provision for survival of the settlement agreement (MacDonald v MacDonald, 73 AD2d 958, 959; Nopper v Nopper, 72 AD2d 827, affd on other grounds 50 NY2d 1009). True, a divorce judgment may be subject to collateral attack in cases where a divorce court is without competence to entertain the matter (Lacks v Lacks, 41 NY2d 71, 74-76; see also, Foster and Freed, 1977 Survey of New York Law, Family Law, 29 Syracuse L Rev 569, 574-575 [discussing Lacks]; Meyer, Some Thoughts on Statutory Interpretation with Special Emphasis on Jurisdiction, 15 Hofstra L Rev 167, 180-182 [1987]). But that exception does not apply here. The judgment was rendered by a court plainly vested with subject matter and personal jurisdiction. Its error — if indeed error— did not go to competence to adjudicate the dispute, but to a matter readily correctable upon timely application for modification or appeal (Lacks v Lacks, supra; see also, Nuernherger v State of New York, 41 NY2d 111, 115-118; Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166).

Finally, the circumstances of this case preclude a contrary conclusion. To rewrite a judgment of divorce which has been relied on by both parties for 10 years would defeat the plaintiffs reasonable expectation that the judgment was valid as entered, and would subvert the policy of upholding settled domestic relations that underlies the doctrine of equitable estoppel in divorce cases (see generally, Krause v Krause, 282 NY 355, 359-360; Clark, Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale LJ 45 [1960]).

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

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.


text:
    Mario Feliberty, Appellant, v Mason D. Damon et al., Defendant, and Medical Malpractice Insurance Association, Respondent.
    Argued May 24, 1988;
    decided July 6, 1988

      POINTS OF COUNSEL

      Edward G. Galian and Sidney Siller for appellant.
    I. Insurer’s nondelegable duty to defend renders it liable for the negligence of its assigned counsel. (Scott v Curtis, 195 NY 424; Schwartz v Merola Bros. Constr. Corp., 290 NY 145; Johnson v Artkraft Strauss Sign Corp., 45 AD2d 482; Smoot v State Farm Mut. Auto. Ins. Co., 299 F2d 525; Cornwell v Safeco Ins. Co., 42 AD2d 127.) II. The duty to defend may include the duty to appeal. (Grand Union Co. v General Acc. Fire & Assur. Corp., 254 App Div 274, 279 NY 638; Kaste v Hartford Acc. & Indem. Co., 5 AD2d 203; McAlleen v Massachusetts Bonding & Ins. Co., 73 App Div 100, 219 NY 563.) III. Settlement of the underlying case without prior notice or consent of insured constituted fraud and malice. (Schumm v Long Is. Light. Co., 56 Misc 2d 913; State Farm Mut. Auto. Ins. Co. v Walker, 382 F2d 548.) IV. Settlement of the action without insured’s knowledge or consent was improper. (Knobloch v Royal Globe Ins. Co., 38 NY2d 471.) V. Respondent and attorneys are liable for compensatory and punitive damages. (Cornwell v Safeco Ins. Co., 42 AD2d 127.)

      Andrew D. Merrick and Judith Treger Shelton for respondent.
    I. Plaintiffs complaint does not state a cause of action for bad faith against respondent. (Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427; United States Fid. & Guar. Co. v

      Copfer, 63 AD2d 847, 48 NY2d 871; Garrity v Lyle Stuart, Inc., 40 NY2d 354; LTS Contrs. v Hartford Ins. Co., 99 AD2d 644.) II. Respondent may not be held vicariously liable to plaintiff for the alleged negligence of independent retained counsel. (Trieber v Hopson, 27 AD2d 151; Jackson v Trapier, 42 Misc 2d 139; Uppington v City of New York, 165 NY 222; Hexamer v Webb, 101 NY 377; Hogan v Comac Sales, 271 NY 562; Schwartz v Merola Bros. Constr. Corp., 290 NY 145; Stubley v Allison Realty Co., 124 App Div 162; Hawke v Brown, 28 App Div 37; People v Gaydica, 122 Misc 31; National Farmers Union Prop. & Cas. Co. v O’Daniel, 329 F2d 60.) III. Respondent properly settled the underlying action. (Knobloch v Royal Globe Ins. Co., 38 NY2d 471; Orion Ins. Co. v General Elec. Co., 129 Misc 2d 466.) IV. Respondent was not obligated to appeal the verdict in the underlying action. (Kaste v Hartford Acc. & Indem. Co., 5 AD2d 203.) V. Plaintiff’s third cause of action for punitive damages for alleged fraud was properly stricken as a matter of law. (Eccobay Sportswear v Providence Washington Ins. Co., 585 F Supp 1343; Halpin v Prudential Ins. Co., 48 NY2d 906; Philips v Republic Ins. Co., 108 AD2d 845, 65 NY2d 1000; Hubbell v Trans World Life Ins. Co., 50 NY2d 899.)
   OPINION OF THE COURT

Kaye, J.

This appeal, in an action by an insured against his insurer, concerns two issues relating to an insurer’s duty to defend litigation brought by a third party against the insured: first, settlement of the litigation by the insurer, and second, responsibility for malpractice of counsel retained for the insured. As to both, we conclude that on this record the complaint against the insurer was correctly dismissed.

On April 26, 1977, plaintiff — Mario Feliberty — a Buffalo physician, for the first time was consulted by Thomas Michaels. Michaels, an ironworker, complained of recurring throat pain and lumps in his neck. Noting that Michaels had been exposed to heavy amounts of dust in his work, plaintiff examined him for about 10 minutes, during which time he observed slight redness of his throat and small lumps in his neck, and then advised Michaels to have his chest X-rayed and return if the condition worsened. Michaels did not again consult plaintiff. On October 12, 1979, plaintiff was served with a summons and complaint alleging that he had committed medical malpractice by failing to diagnose at an early, easily treatable stage, what was ultimately discovered to be lymphoma. Plaintiff forwarded the papers to his insurance carrier, defendant Medical Malpractice Insurance Association, which in turn retained a Buffalo law firm to represent him in the malpractice action. The insurer also advised plaintiff that he was free to consult his own attorney, at his expense, to protect his personal interests.

After a medical malpractice panel unanimously concluded that plaintiff had committed malpractice, the case proceeded to trial, resulting in a verdict of $1,239,000. Plaintiff was assessed 60% of the fault, or $743,000 of the damages, a sum within policy limits. Plaintiff demanded of his attorneys and the insurer that they appeal this verdict, but before judgment was entered — and allegedly without plaintiff’s knowledge — the insurer settled the claim for $700,000. Plaintiff then brought this action for legal malpractice against the law firm, contending that the firm’s negligence and the publicity following the verdict had destroyed his practice and ultimately forced him to leave the area. He also sought compensatory and punitive damages from defendant insurer, alleging fraud and breach of contract in connection with the settlement, and liability for the legal malpractice of the attorneys it had retained to defend him.

In particular, in his complaint against the law firm plaintiff charged that his attorneys had not advised him of the meeting of the malpractice panel; had not consulted with him throughout the proceedings; and that they investigated, pleaded and prepared inadequately, failed to make obvious objections, conduct reasonable examination of witnesses, introduce favorable evidence at trial, properly sum up or make written submissions. Plaintiff complained that after trial, counsel had failed to move for a mistrial or reduction of the verdict, omitted to have the settlement sealed, and disregarded his requests to appeal. Plaintiff repeated these same allegations against the insurer, contending that the malpractice of retained counsel constituted a failure on the part of the insurer to provide a proper legal defense. Additionally, he complained that the insurer neither consulted him before settling nor advised him of his rights concerning appeal.

Supreme Court granted the insurer’s motion to dismiss the complaint against it, holding that it had an absolute right to settle under the policy, and that it had no vicarious liability for the alleged negligence of independent counsel retained for its insured. The Appellate Division affirmed, and we granted leave to appeal.

Two contentions lie at the heart of plaintiffs appeal: first, that the insurer breached its contract and was guilty of bad faith when it settled the case without his consent and failed to take an appeal, and second, that the insurer stands liable for the legal malpractice of counsel it retained to represent him. We agree with both Supreme Court and the Appellate Division that neither contention has merit, and therefore conclude that the complaint was properly dismissed.

Both courts correctly dismissed plaintiff’s claims of wrongdoing regarding the settlement. While the settlement was within policy limits and plaintiff therefore technically suffered no out-of-pocket loss, he is understandably concerned about protecting a different interest — his professional reputation. This insurance contract, however, specifies that the "company may make such investigation and such settlement of any claim or suit as it deems expedient.” Unlike bargained-for, and presumably costlier, policy provisions contemplating the insured’s consent to settlement (see, 7C Appleman, Insurance Law and Practice § 4711, at 55 [1988 Supp]), here the parties’ contract unambiguously gave the insurer the unconditioned right to settle any claim or suit without plaintiff’s consent.

Nor, on this record, can plaintiff succeed in his contention that, in settling, the insurer violated any implied obligation or acted in bad faith. An insurer "is obliged in most circumstances to respond accurately to requests from its insured with reference to the progress of any settlement negotiations.” (Knobloch v Royal Globe Ins. Co., 38 NY2d 471, 479.) But plaintiff has alleged no failure to respond accurately to requests regarding settlement offers. His discontent centers instead on the insurer’s settlement without his knowledge or consent, as it had the right to do under the policy, instead of taking an appeal.

Moreover, the obligation articulated in Knobloch rested on the fairness in that case of providing the insureds sufficient information, in response to their direct inquiry regarding settlement offers, so that they could protect themselves against liability that exceeded their coverage. The insureds in Knobloch might have chosen to increase the carrier’s settlement offer with their own funds had they been apprised of the progress of the settlement talks. Instead, the insurer denied them the requested information, the case went to trial, and the verdict greatly exceeded their coverage. Here, by contrast, plaintiff’s request that an appeal be taken did not put the insurer on notice that he wished to be informed of any contemplated settlement so that he could protect against personal exposure, and the settlement the insurer negotiated was well within policy limits. Thus, we agree with Supreme Court and the Appellate Division that, in the present circumstances, no fraud or breach of contract claim was stated against the insurer in connection with its settlement of the medical malpractice action.

Similarly, the complaint fails to state a cause of action against the insurer for the second, independent basis of liability — the alleged malpractice of retained counsel.

When an insured has been sued, the insurer does not satisfy its duty to defend merely by designating independent counsel to defend the litigation (see generally, 7C Appleman, Insurance Law and Practice § 4687). This appeal, however, does not call upon us to set out all the parameters of the insurer’s duty to defend in litigation because it presents a limited issue. Plaintiff does not allege that the insurer designated incompetent or conflicted counsel (see, e.g., Cornwell v Safeco Ins. Co., 42 AD2d 127); and he does not allege that the insurer ignored complaints regarding counsel’s incompetence, or indeed that he expressed any dissatisfaction to the insurer about counsel’s services. His sole contention is that, in its day-to-day conduct of his defense, the law firm performed inadequately, and that, for this malpractice, the insurer stands vicariously liable.

We begin with the basic proposition that liability in negligence is normally premised on a defendant’s own fault, not the wrongdoing of another person. The doctrine of vicarious liability, which imputes liability to a defendant for another person’s fault, rests in part on the theory that — because of an opportunity for control of the wrongdoer, or simply as a matter of public policy loss distribution — certain relationships may give rise to a duty of care, the breach of which can indeed be viewed as the defendant’s own fault (Kavanaugh v Nussbaum, 71 NY2d 535, 546).

It was early postulated that a master had the ability, and the obligation, to control its servant, and would be liable for torts committed by the servant in the course of employment (see generally, Harper and Kime, The Duty to Control the Conduct of Another, 43 Yale LJ 886 [1933-1934]). The common-law distinction between “servants” and “independent contractors,” whose wrongdoing generally gave rise to no liability on the part of those who hired them, is comparatively recent (Prosser and Keeton, Torts §71, at 509 [5th ed]). The reason most commonly advanced for the distinction is that an employer cannot control the manner in which work is performed by an independent contractor as it can the work of a servant; in these circumstances, the contractor itself is properly chargeable with preventing, bearing and distributing the attendant risks. (See, Restatement [Second] of Torts § 409, comment a.) The principle that an employer is not liable for the acts of independent contractors remains the general rule today, albeit with growing public policy exceptions; the Restatement lists approximately 20 exceptions to the rule (see, Restatement, op. cit., §§ 410-429; see also, Comment, Risk Administration in the Marketplace: A Reappraisal of the Independent Contractor Rule, 40 U Chi L Rev 661 [1973]).

Plaintiff does not seriously dispute that the law firm retained by defendant to represent him was an independent contractor; he does not claim that, in the conduct of his defense, the law firm was subject to defendant’s actual direction and control. The question is simply whether the facts of this case fall within one of the recognized exceptions to the general rule that an employer is not liable for the acts of an independent contractor, and if not, whether a new exception should be recognized.

Plaintiff urges that the insurance company’s contractual duty to defend him was a nondelegable duty, thus bringing his claim within an exception to the general rule of nonliability. A nondelegable duty has been described as one that the employer is not free to delegate to a contractor and "requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted.” (Restatement, op. cit., Introductory Note, at 394.) In large part, whether a duty — or, perhaps more accurately, whether liability — is "nondelegable” turns on policy considerations. A duty is nondelegable when "the responsibility is so important to the community that the employer should not be permitted to transfer it to another.” (Prosser and Keeton, Torts § 71, at 512 [5th ed].)

A nondelegable duty has been found, for example, when the work contracted for was inherently or abnormally dangerous (McDonald v Shell Oil Co., 20 NY2d 160, 165-166); when services, though in reality rendered by an independent contractor, were accepted by a third party after assurance that they were being supplied by its employer (Miles v R & M Appliance Sales, 26 NY2d 451, 454); or when the duty was created by statute (Allen v Cloutier Constr. Corp., 44 NY2d 290, 300). Because the employer knew that the work for which it had contracted posed particular danger to others, or because it knew that another person reasonably looked only to it for the performance of services (contrast, Kavanaugh v Nussbaum, 71 NY2d 535, 547-549, supra), or because of a statutory obligation of care, a duty can fairly be said to run from the employer to those third parties.

We have not previously recognized an insurer’s obligation to defend its insured in the conduct of a litigation as a "nondelegable duty,” and we decline to do so in this case.

In Smoot v State Farm Mut. Auto. Ins. Co. (299 F2d 525)— involving an insurer’s failure to settle within policy limits — a Federal Court of Appeals concluded that an insurer’s duty to defend is subject to vicarious liability, noting that the duty is "an important and frequently distinguishable part of the insurance contract” and that the insurer therefore stands liable for the agents it selects to execute its promises (id., at 530; see also, Continental Ins. Co. v Bayless & Roberts, 608 P2d 281 [Alaska]; Highway Ins. Underwriters v Lufkin-Beaumont Motor Coaches, 215 SW2d 904 [Tex]). The California Court of Appeal, in Merritt v Reserve Ins. Co. (34 Cal App 3d 858, 881-882, 110 Cal Rptr 511, 526-527), reached the contrary conclusion: that the remedy for negligence of trial counsel in the actual conduct of an insured’s defense in a litigation should lie in an action against counsel for malpractice and not a suit against the insurer based solely on vicarious liability. For the following reasons, we conclude that Merritt poses the better rule.

First, the duty to defend an insured is by its very nature delegable, as all the parties must know from the outset, for in New York — as in California — an insurance company is in fact prohibited from the practice of law (Judiciary Law § 495). Accordingly, the insurer necessarily must rely on independent counsel to conduct the litigation. Second, the paramount interest independent counsel represents is that of the insured, not the insurer. The insurer is precluded from interference with counsel’s independent professional judgments in the conduct of the litigation on behalf of its client (Trieber v Hopson, 27 AD2d 151, 153; American Employers Ins. Co. v Globe Aircraft Specialties, 205 Misc 1066, 1075; see also, Code of Professional Responsibility EC 5-17, 5-21, 5-23). Vicarious liability thus produces an untenable situation here: on the one hand an insurer is prohibited from itself conducting the litigation or controlling the decisions of the insured’s lawyer, yet on the other hand it is charged with responsibility for the lawyer’s day-to-day independent professional judgments in the "nuts and bolts” of representing its client. Finally, in determining whether a new exception should be recognized, we note that an insured is not otherwise left without a remedy for a law firm’s claimed incompetence, and a law firm is not insulated from liability for wrongdoing; indeed, in the case before us, plaintiff has sought full recovery for his damages in a legal malpractice claim against the firm.

Thus, given the insurer’s inability to provide or control the legal services in issue, and the existence of a remedy for incompetence against counsel, we conclude that the imposition of vicarious liability in the circumstances is unwarranted.

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

Chief Judge Wachtler and Judges Simons, Alexander, Titone and Bellacosa concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs.

      . This appeal concerns only the case against the insurer. The record does not disclose the status of plaintiff’s action against the law firm.

      . As the court noted, even the insurer’s refusal to respond to the insureds’ direct inquiry regarding settlement "was relevant on the issue of bad faith, although we would attach little significance to it, standing alone.” (id.)

      . Plaintiffs request that an appeal be taken did not even foreclose the possibility that he would have been satisfied by a settlement on more favorable terms than the $1,239,000 verdict. There is no suggestion in the record that plaintiff at the time expressed fear of injury to his reputation and wished to assume personal responsibility for the appeal.


text:
    Asian Americans for Equality et al., Appellants. v Edward I. Koch, as Mayor of the City of New York and Chairman of the Board of Estimate, et al., Respondents.
    Argued June 1, 1988;
    decided July 7, 1988

      POINTS OF COUNSEL

      Frank J. Barbaro, Earle R. Tockman, Stephen Dobkin, Geoffrey D. H. Smith, Richard Sussman and Ann L. Detiere for appellants.
    I. Plaintiffs’ allegations that the Special Manhattan Bridge District zoning regulations are exclusionary states a cause of action under New York law. (Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 450 US 1042; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122; Group Hous. v Board of Zoning & Appeals, 45 NY2d 266; Matter of Golden v Planning Bd., 30 NY2d 359; Berenson v Town of New Castle, 38 NY2d 102; Udell v Haas, 21 NY2d 463; Guggenheimer v Ginzburg, 43 NY2d 268; Russell v Trask Co., 125 AD2d 136.) II. The court below failed to apply the correct standard for pretrial motions to dismiss. (Guggenheimer v Ginzburg, 43 NY2d 268; Kaufman v Lilly & Co., 65 NY2d 449; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Goldsmith v Sternberg, 125 AD2d 365; Bryant Ave. Tenants’ Assn. v Koch, 127 AD2d 470; Rovello v Orofino

      Realty Co., 40 NY2d 633; Four Seasons Hotels v Vinnik, 127 AD2d 310; Business Assn. v Landrieu, 660 F2d 867; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Berenson v Town of New Castle, 38 NY2d 102.) III. The court below misapplied the requirements of Berenson v Town of New Castle to the Special Manhattan Bridge District. (Berenson v Town of New Castle, 38 NY2d 102; Euclid v Ambler Co., 272 US 365; Village of Belle Terre v Boraas, 416 US 1; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122.) IV. Plaintiffs’ cause of action is not barred by the Statute of Limitations. (Matter of Voelckers v Guelli, 58 NY2d 170; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Lutheran Church v City of New York, 27 AD2d 237; Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184; De Luca v Kirby, 83 AD2d 621; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Golden v Planning Bd., 37 AD2d 236, 30 NY2d 359.) V. Plaintiffs seek relief consistent with traditional principles of judicial review. (Udell v Haas, 21 NY2d 463; Berenson v Town of New Castle, 67 AD2d 506; Matter of Golden v Planning Bd., 30 NY2d 359; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338.) VI. Plaintiffs are entitled to appeal as of right. (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Lighting Horizons v Kahn & Co., 120 AD2d 648; Leonhart v McCormick, 395 F Supp 1073; Federal Sav. & Loan Ins. Corp. v Director of Revenue, 650 F Supp 1217; Sherry v New York State Educ. Dept., 479 F Supp 1328; Guggenheimer v Ginzburg, 43 NY2d 268; Garvin v Garvin, 306 NY 118; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 450 US 1042; Berenson v Town of New Castle, 38 NY2d 102.)

      Peter L. Zimroth, Corporation Counsel (Edward F. X. Hart and Leonard Koerner of counsel), for Edward Koch and others, respondents.
    Since plaintiffs’ constitutional challenge is not directed to the City’s Zoning Resolution but solely to an amendment affecting a small area which already contains primarily low-income housing and since plaintiffs’ challenge to the amendment is premised upon an assumption that the New York State Constitution requires a municipality affirmatively to provide for low-income housing, it fails to state a cause of action cognizable under the Constitution or laws of this State. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Voelckers v Guelli, 58 NY2d 170; Town of Hunting

      ton v Park Shore Country Day Camp, 47 NY2d 61; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338; Marcus Assocs. v Town of Huntington, 45 NY2d 501; Euclid v Ambler Co., 272 US 365; Rogers v Village of Tarrytown, 302 NY 115; Matter of Mahoney v O’Shea Funeral Homes, 45 NY2d 719; Shepard v Village of Skaneateles, 300 NY 115.)

      Ronald J. Offenkrantz and Michael H. Smith for Henry Partners, respondent.
    I. These proceedings were instituted more than four months after creation of the Special Manhattan Bridge District and more than four months after issuance of the special use permit. Affirmance of the order appealed from is required because this proceeding is untimely. (Matter of Jackson v New York Urban Dev. Corp., 67 NY2d 400; Town of Orangetown v Gorsuch, 718 F2d 29, cert denied sub nom. Town of Orangetown v Ruckelshaus, 465 US 1099.) II. Plaintiffs do not state a claim under Berenson. (Berenson v Town of New Castle, 38 NY2d 102; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122.) III. This action is not moot insofar as Henry Street Partners is concerned; while the special use permit may have been invalidated the constitutional attack on its issuance has not been withdrawn. IV. Plaintiffs may not be entitled to appeal as of right. (Gillies Agency v Filor, 32 NY2d 759.)

      Leslie Salzman, Shirley Traylor, Esmeralda Simmons, Andrew Scherer, Jocelyne Martinez and Roger Wareham for Ansonia Tenants Coalition, Inc., and others, amici curiae.

    I. New York City is experiencing an extreme shortage in the availability of decent, affordable housing for low- and moderate-income people. (McCain v Koch, 117 AD2d 198, 70 NY2d 109.) II. The housing crisis currently prevailing in New York City is creating and exacerbating serious social and medical problems. III. Given New York City’s housing crisis and the impact of that crisis, the challenged zoning resolution violates the City’s obligation to assure that the housing needs of low-income people are met. (Euclid v Ambler Co., 272 US 365; Berenson v Town of New Castle, 38 NY2d 102; Udell v Haas, 21 NY2d 463; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122; Tucker v Toia, 43 NY2d 1; McCain v Koch, 117 AD2d 198, 70 NY2d 109; Matter of Jones v Berman, 37 NY2d 42; Matter of LaPorte v Berger, 57 AD2d 425; Matter of

      Rosenfeld v Blum, 82 AD2d 559; Matter of Lee v Smith, 43 NY2d 453.)

      Kalman Finkel, Helaine Barnett, Arthur J. Fried, John E. Kirklin and Lynn M. Kelly for The Legal Aid Society of New York, amicus curiae.

    The challenged zoning resolution violates New York constitutional and statutory requirements that it be part of a well-considered plan to promote the public health, safety and general welfare. (McCain v Koch, 70 NY2d 109; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338; Berenson v Town of New Castle, 38 NY2d 102; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122; Euclid v Ambler Co., 272 US 365; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193.)

      . Plaintiffs contend that the amendment violates their rights under the New York State Constitution. Their claims rest on due process and equal protection grounds. They have standing to raise these issues (see, Suffolk Hous. Servs. v Town of Brookhaven, 63 AD2d 731, 109 AD2d 323, affd 70 NY2d 122; Long Is. Region N.A.A.C.P. v Town of N. Hemsptead, 102 Misc 2d 704, affd 75 AD2d 842; cf., Warth v Seldin, 422 US 490; see generally, Tribe, American Constitutional Law § 3-18, at 132-134 [2d ed]).

   OPINION OF THE COURT

Simons, J.

Plaintiffs instituted this action to challenge an amendment to the New York City Zoning Resolution which established the Special Manhattan Bridge District in Chinatown. Plaintiffs either live or work in Chinatown or represent those who do and the gist of their complaint is that the new zoning will displace residents who require low-income housing because it will eliminate some of the existing housing without providing sufficient incentives for the development of affordable new housing to replace it. They seek judgment (1) declaring the Special Manhattan Bridge District amendment unconstitutional because it was not enacted pursuant to a well-considered plan and (2) imposing a mandatory injunction compelling the City to create a zoning plan for the District "which provides for and mandates a realistic opportunity for the construction of low income housing”. A divided Appellate Division dismissed the complaint finding the first and second causes of action failed to state a claim and the third cause of action, seeking to enjoin development of Henry Street Towers, moot after our decision in Chinese Staff & Workers Assn. v City of New York (68 NY2d 359). On this appeal, plaintiffs seek reinstatement of their first and second causes of action. They contend in their complaint that the amendment results in exclusionary zoning and, referring specifically to Southern Burlington County N.A.A.C.P v Township of Mount Laurel (92 NJ 158, 456 A2d 390 [Mount Laurel II]), they seek affirmative relief similar to the relief fashioned in that decision. On appeal to this court they have modified their argument, however, placing principal reliance on our decision in Berenson v Town of New Castle (38 NY2d 102).

I

Plaintiff Asian Americans for Equality is a not-for-profit corporation engaged in supporting the rights of men and women of all races for improved housing, job opportunities and working conditions. The individual plaintiffs are now or formerly were residents of the area known as Chinatown, a center of Chinese culture and services in New York City where persons of Chinese and Asian ancestry reside. The individual plaintiffs allege either that they live in substandard housing there or that they were compelled to leave because of their inability to find suitable housing. They are persons of low income and none own property in Chinatown. Defendants are the City of New York, various officers and agencies of the City and a private developer.

The Special Manhattan Bridge District was created in 1981 by amendment to the City’s Zoning Resolution. The District encompasses 14 blocks in the area of the Manhattan Bridge and includes a part, but by no means all, of Chinatown. One area south of Monroe and Madison Streets and west of St. James Place, was excluded from the District because it had been redeveloped with public or publicly assisted housing. Others were excluded because they were commercial.

The amendment was preceded by a study of the Manhattan Bridge area which confirmed that Chinatown contains a substantial proportion of high density, substandard housing occupied by low-income groups who work there in the garment, tourist and related industries. The amendment sought to correct these housing conditions by encouraging construction of new residential facilities, the rehabilitation of existing structures and the expansion of community facilities. To achieve those aims, it authorized development of mixed-income housing on land vacant or substantially vacant at the time the amendment was enacted. The amendment provides that new construction must be authorized by special permit and regulated by a system of bonus points permitting increased density in new housing units for those developers who agree to do one or a combination of the following: (1) donate space for community facilities such as senior citizen or day care centers, educational facilities, or a combination of these; (2) construct low-income dwelling units; or (3) rehabilitate existing substandard housing. Defendant Henry Street Partners obtained a permit to build mixed-income housing with a greater floor area than otherwise permitted on vacant land on condition that it provide community facility space on the first floor and contribute $500,000 to help fund low-income housing in the District.

Recognizing that the stated goals of the City’s study of the Manhattan Bridge area and the amendment creating the District are "very similar” to their own, plaintiffs nevertheless contend that the amendment is invalid because the means adopted to achieve them are inadequate. They charge that the bonuses awarded to permit high density housing favor moderate and high-income development and do not provide sufficient incentive to encourage construction of low-cost housing. They ask the court to require defendants to (1) improve existing housing in the Special Manhattan Bridge District, (2) provide more affordable low-income housing, (3) minimize the adverse affects of rehabilitation and (4) assure that the present residents who wish to stay in Chinatown are able to do so.

Defendants assert that the complaint fails to state claims for legal relief because (1) the amendment creating the Special Manhattan Bridge was in accord with a well-considered plan for the City of New York and (2) the City has no obligation to zone specific areas for low-income housing nor any constitutional obligation to affirmatively provide substantive guarantees of low-income housing in Chinatown.

II

Zoning, as first devised, was a means of dividing the whole territory of a municipality into districts and imposing restrictions on the uses permitted in them. Restrictions on size and density of construction to control fire and traffic hazards, for example, or to eliminate offensive uses from residential districts were deemed a reasonable exercise of the police power (see, Euclid v Ambler Co., 272 US 365). Such traditional zoning is both restrictive and passive, providing minimum encouragement for development of the municipality as a whole.

Special district zoning — exemplified by the Manhattan Bridge District questioned here — represents a significant departure from this traditional Euclidian zoning concept. It is based on the idea that zoning can be used as an incentive to further growth and development of the community rather than as a restraint. It is one of several imaginative legislative schemes intended to encourage, or even coerce, private developers into making the City a more pleasant and efficient place to live and work. Incentive zoning is based on the premise that certain uneconomic uses and amenities will not be provided by private development without economic incentive. The economic incentive frequently used, and the one used in the Manhattan Bridge District amendment, is the allowance of greater density within a proposed building, more floor area than permitted under general zoning rules, if developers provided certain amenities for the community. The amendment awards bonus points which entitle developers to expand their construction in return for increased construction of other, uneconomic projects such as low-cost housing, slum rehabilitation or public facilities. The bonus awarded for each amenity must be carefully structured, however, to make the cost-benefit equation favorable enough to induce the developer to provide the desired uneconomic benefit to the city but sufficiently limited to avoid a windfall to it.

New York City has used these special district incentive programs to develop uneconomic but necessary uses since 1961. By means of them they have encouraged the preservation and redevelopment of the Broadway Theatre District, protected a major investment in the Special Lincoln Square District, preserved historic shopping areas such as Fifth Avenue and provided relocation housing in the Lower Third Avenue District (see generally, Elliott and Marcus, From Euclid to Ramapo: New Directions in Land Development Controls, 1 Hofstra L Rev 56; Marcus and Groves, The New Zoning: Legal, Administrative, and Economic Concepts and Techniques, at 200 et seq. [1970]; 2 Rathkopf, Zoning and Planning § 17.06 [2] [4th ed]). The districts created are not traditional zoning districts, narrowly limited to particular uses, but broad-based plans intended to preserve and enhance troubled areas of the City which, because of their singular characteristics, are important to its wealth and vitality. The Special Manhattan Bridge District was created to protect a badly deteriorated part of the unique area of New York City known as Chinatown.

ra

A

In plaintiffs’ first cause of action, they allege that the Special Manhattan Bridge District enactment is "piecemeal” legislation. Piecemeal zoning exists when only part of the land within a municipality is regulated by the zoning laws (see, 1 Anderson, New York Zoning Law and Practice §§ 5.03, 5.10 [3d ed]). However, the entire City of New York is zoned; indeed, New York City enacted the first comprehensive zoning law in the Nation in 1916. The litigation before us simply relates to one of many amendments to it. Manifestly, it is not "piecemeal” legislation.

Plaintiffs further allege in the first cause of action that the amendment is "not comprehensive in outlook” and that the study on which it is based is not part of a well-considered plan. The pleadings refer to the amendment only in this one conclusory assertion; the remaining several paragraphs of the cause of action challenge the planning study which preceded it. The plan is attacked as "not well considered”, based upon insufficient information, "not related” to the District, "limited”, and not addressed to the community. The validity of the amendment is not dependent solely upon the adequacy of the study of the Manhattan Bridge area, however, but on all the City’s zoning policies and plans (see, Udell v Haas, 21 NY2d 463) and nowhere in the complaint have plaintiffs alleged that the City has failed to plan for the balanced and well-ordered development of the community or that it has neglected to zone the City to provide for the needs of its inhabitants or those in the region. Accordingly, the first cause of action does not state a legal claim for relief.

Moreover, plaintiffs have not only failed to plead a cause of action based upon the City’s failure to follow a well-considered plan but it is clear that under established law they have none (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Foley v D’Agostino, 21 AD2d 60, 64-65).

The power to zone is derived from the Legislature and must be exercised in the case of towns and villages in accord with a "comprehensive plan” (see, Town Law § 263; Village Law § 7-704) or in the case of cities in accord with a "well considered plan” (General City Law § 20 [25]). The requirement of a plan is based on the premise that "zoning is a means rather than an end” (1 Anderson, New York Zoning Law and Practice § 5.03, at 158 [3d ed]). The function of land regulation is to implement a plan for the future development of the community (Berenson v Town of New Castle, 38 NY2d 102, 109, supra). Its exercise is constitutional only if the restrictions are necessary to protect the public health, safety or welfare. The requirement of a comprehensive or well-considered plan not only insures that local authorities act for the benefit of the community as a whole but protects individuals from arbitrary restrictions on the use of their land (see, Udell v Haas, 21 NY2d, supra, at 469; see, Note, Comprehensive Plan Requirement in Zoning, 12 Syracuse L Rev 342).

A well-considered plan need not be contained in a single document; indeed, it need not be written at all. The court may satisfy itself that the municipality has a well-considered plan and that authorities are acting in the public interest to further it by examining all available and relevant evidence of the municipality’s land use policies (Udell v Haas, supra, at 470-472). Zoning legislation is tested not by whether it defines a well-considered plan but by whether it accords with a well-considered plan for the development of the community. When a zoning ordinance is amended, the court decides whether it accords with a well-considered plan in much the same way, by determining whether the original plan required amendment because of the community’s change and growth and whether the amendment is calculated to benefit the community as a whole as opposed to benefiting individuals or a group of individuals (see, Randolph v Town of Brookhaven, 37 NY2d 544, 547; Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178, 187-188, rearg denied 34 NY2d 668).

Because zoning is a legislative act, zoning ordinances and amendments enjoy a strong presumption of constitutionality and the burden rests on the party attacking them to overcome that presumption beyond a reasonable doubt (Matter of Town of Bedford v Village of Mount Kisco, supra, at 186; Shepard v Village of Skaneateles, 300 NY 115, 118). In claims such as this, the analysis follows traditional due process rules: if the zoning ordinance is adopted for a legitimate governmental purpose and there is a " 'reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end’ ”, it will be upheld (see, McMinn v Town of Oyster Bay, 66 NY2d 544, 549, quoting French Investing Co. v City of New York, 39 NY2d 587, 596, rearg denied 40 NY2d 846, appeal dismissed 429 US 990). An amendment which has been carefully studied, prepared and considered meets the general requirement for a well-considered plan and satisfies the statutory requirement (Randolph v Town of Brookhaven, supra, at 547; Matter of Town of Bedford v Village of Mount Kisco, supra, at 188-189; see, 1 Anderson, New York Zoning Law and Practice § 5.03, at 161-162 [3d ed]). The court will not pass on its wisdom (see, Matter of Voelckers v Guelli, 58 NY2d 170, 177).

Manifestly, this legislation was reasonably related to its goals: the development of needed housing and the rehabilitation of existing housing in one area of Chinatown. There is no allegation that it was not consistent with the City’s general planning or that the City had failed to make provision for low-cost housing. That being so, and inasmuch as the amendment was enacted after study and consideration (see, Lai Chun Chan Jin v Board of Estimate, 62 NY2d 900 [reciting the preenactment procedures of the present legislation]), it met the requirements for a well-considered plan set forth in Randolph v Town of Brookhaven (supra) and Matter of Town of Bedford v Village of Mount Kisco (supra).

B

Plaintiffs’ second cause of action seeks a mandatory injunction compelling the City to amend the Special Manhattan District Zoning to create greater opportunity for the construction of low-income housing. Plaintiffs do not attack the purpose of the amendment but rather the adequacy of the legislative scheme. They claim that the incentives offered will not provide sufficient low-cost housing because the rewards for doing so are too low compared to the rewards the amendment authorizes for other amenities. As pleaded, the cause of action seeks relief from exclusionary zoning similar to that granted in Southern Burlington County N.A.A.C.P v Township of Mount Laurel (67 NJ 151, 336 A2d 713, appeal dismissed 423 US 808 [Mount Laurel I]; 92 NJ 158, 456 A2d 390 [Mount Laurel II], supra): a mandatory injunction compelling the City to correct the problem. On appeal plaintiffs rely primarily on the rule in Berenson v Town of New Castle (38 NY2d 102, supra), a decision of this court which held that a zoning ordinance would be annulled if it did not include districts for multiple housing when community and regional needs required such housing. Berenson did not mandate affirmative relief, nor have we had occasion to do so since that decision (see, Anderson & Mayo, Land Use Control, 35 Syracuse L Rev 485, 488-489; see also, Blitz v Town of New Castle, 94 AD2d 92, 98-99; see generally, Nolon, A Comparative Analysis of New Jersey’s Mount Laurel Cases with the Berenson Cases in New York, 4 Pace Env L Rev 3).

Exclusionary zoning may occur either because the municipality has limited the permissible uses within a community to exclude certain groups (see, e.g., Dowsey v Village of Kensington, 257 NY 221), or has imposed restrictions so stringent that their practical effect is to prevent all but the wealthy from living there (see, Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269; and see generally, Annotation, Exclusionary Zoning, 48 ALR3d 1210). It is a form of racial or socioeconomic discrimination which we have repeatedly condemned (see, e.g., Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 345; Berenson v Town of New Castle, supra; Matter of Golden v Planning Bd., 30 NY2d 359, appeal dismissed 409 US 1003). If the party attacking the ordinance establishes that it was enacted for an exclusionary purpose or has an exclusionary effect, then the ordinance will be annulled (see Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, supra).

In Berenson we reviewed an ordinance which made no provision for low- or moderate-income housing in undeveloped areas of the municipality. We held that there must be a legitimate basis for such exclusions; limitations on development will be permitted only if the ordinance satisfies the needs of the community and also reflects a consideration of regional needs and requirements. We stated, however, that our concern was not "whether the zones, in themselves, are balanced communities, but whether the town itself, as provided by its zoning ordinances, will be a balanced and integrated community” (Berenson v Town of New Castle, supra, at 109). Constitutional principles are not necessarily offended if one or several uses are not included in a particular area or district of the community as long as adequate provision is made to accommodate the needs of the community and the region generally (see, Town of Pompey v Parker, 53 AD2d 125, 127, affd 44 NY2d 805).

Applying these decisions plaintiffs’ second cause of action does not state a claim of exclusionary zoning. New York City does not now nor has it ever excluded low-cost housing in Chinatown or in the City generally. Low-income families now live in the District and will continue to live there, hopefully in rehabilitated or newly constructed low-cost housing, if the purposes of the amendment are fulfilled.

Plaintiffs nevertheless contend that the amendment must be annulled because its effect will be exclusionary. They assert that not only will presently available sites be limited to luxury housing but they predict that new development will force them from their homes and, because the change in zoning favors construction of mixed-income apartments, present structures will be replaced by living accommodations they cannot afford. They note that the constitutional validity of zoning rests on the exercise of the police power for the general welfare and that the general welfare is no more abused by zoning which excludes the poor from a community than by zoning which forces them out of the community. Thus, their complaint seeks an order of the court compelling the City to provide low-cost housing, relief similar to that afforded in the Mount Laurel cases. Having failed to sustain that argument in the Appellate Division, they have adopted in this court the position of the Appellate Division dissenters that the Berenson rule prohibiting exclusionary zoning must be modified to define the "community” for zoning purposes as the 14-block area of the Special Manhattan Bridge District.

Berenson cannot reasonably be extended to the facts presented here. The City is the governing authority, not the District and this action challenges its laws. When enacting them, City officials must address the needs of the broader community and must act not only for benefit of the District and its residents, but for the benefit of the City as a whole. Requiring City planners to include particular uses in every district may be truly obnoxious to the City’s over-all development, however, and applying the Berenson rule to a district as small as this 14-block area could defeat the intended purpose of special district zoning. The interpretation plaintiffs seek also runs counter to the rationale underlying the Berenson decision. That holding was deemed necessary to avoid the parochialism of elected local officials in communities which excluded minorities and socioeconomic groups from undeveloped areas of their municipalities to cater to a favored constituency. But here the question of exclusion relates to a Special District in the most highly developed municipality in the Nation, one which already has made extensive allowance for a variety of housing opportunities within its boundaries.

Nor have plaintiffs stated a claim for affirmative relief. The Mount Laurel decisions (supra), which they rely upon, addressed a substantially different problem, the zoning of a suburban township approximately 20 miles from centers of employment in Camden and Philadelphia. The New Jersey Supreme Court held that the township’s zoning systematically excluded poor and middle-income persons from the community by means of artificially strict, cost-generating zoning restrictions (e.g., minimum lot sizes, prohibition against mobile homes and multiple housing) and that it therefore violated the Equal Protection Clause of the State Constitution (67 NJ 151, 336 A2d 713, supra). The township responded to this decision by rezoning for low-cost housing three small, widely scattered areas (less than .25% of its land) suffering from swampy soil conditions, high noise levels and proximity to industrial uses. On a subsequent appeal the court ordered Mount Laurel to amend its ordinance to "create realistic opportunities” for low-cost housing in the township by means of government subsidies and inclusionary zoning. The court acknowledged that it was acting legislatively in determining the use appropriate to the area, and imposing a remedy (92 NJ, supra, at 243), but considered the action necessary because of the failure of the local government to address the problem. In doing so, it noted that the Legislature had directed establishment of a Statewide blueprint for the use and development of the land in New Jersey and that State planners had prepared a master plan in response to the statute, the State Development Guide Plan, designating Mount Laurel Township as a "growth” area. The affirmative relief granted by the court was consistent with the planners’ classification of the Mount Laurel Township (see, 92 NJ 158, 220-248, 456 A2d 390, 421-435, supra).

Both Mount Laurel and Berenson examined the limits expanding suburban communities could impose on the type of growth within their boundaries. This action, however, concerns a densely developed area in New York City with substantial low-cost housing, deteriorating to be sure, but bordering on an area of Chinatown containing modern public housing and in a City containing much more. Plaintiffs seek not to overcome exclusionary practices or to correct some past inequity by implementing an existing lawful State-wide legislative policy, as in Mount Laurel, but to overturn the considered decision of the executive and legislative branches of New York City’s government because they believe the City’s chosen remedy for this established area will prove inadequate.

We recognize plaintiffs’ concerns over displacement and gentrification in the Chinatown area. Indeed, in a prior appeal involving the Special Manhattan Bridge District, we granted summary judgment annulling the special permit to Henry Street Partners and directed that construction could not commence until the City addressed the potential displacement of inhabitants and businesses before authorizing the work to progress (see, Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, supra). But plaintiffs’ attack on the zoning laws, seeks much broader relief, a rewriting of the ordinance itself.

In our prior decisions we have not compelled the City to facilitate the development of housing specifically affordable to lower-income households; a zoning plan is valid if the municipality provides an array of opportunities for housing facilities (see, Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122, supra). We conclude that we should not extend that rule in this case. Those charged with the duty of addressing the problems of Chinatown chose to rezone the Manhattan Bridge area and provide housing incentives they deemed most suitable. They have attempted to use incentive zoning to provide realistic housing opportunities which include new apartments for the poor. Nothing in the legislative plan suggests that it will fail its purpose and plaintiffs do not allege that the solution is arbitrary or capricious or undertaken for an improper purpose, only that they would have zoned the area differently, or better, to avoid a potential future problem. Their allegations fail to state a cause of action entitling them to judicial relief.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . A site is substantially vacant if less than 10% of the zoning lot contains residential buildings. New construction may not be authorized for such sites, however, until the developer submits an approved relocation plan and unless it affirms that it has not harassed the tenants to relocate.


author: Bellacosa, J.

text:
    In the Matter of Industrial Liaison Committee of the Niagara Falls Area Chamber of Commerce et al., Appellants, v Henry G. Williams, as Commissioner of Environmental Conservation, Respondent, and Hudson River Sloop Clearwater, Inc., et al., Intervenors-Respondents. (And Another Related Proceeding.)
    Argued May 31, 1988;
    decided July 12, 1988

      POINTS OF COUNSEL

      John Hanna, Jr., and Philip H. Dixon for appellants.
    I. The Department of Environmental Conservation denied the public any opportunity for meaningful comment on the proposed regulations. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Weyerhaeuser Co. v Costle, 590 F2d 1011; Connecticut Light & Power Co. v Nuclear Regulatory Commn., 673 F2d 525; Kennecott v United States Envtl. Protection Agency, 780 F2d 445; National Assn. of Metal Finishers v Environmental Protection Agency, 719 F2d 624, revd on other grounds sub nom. Chemical

      Mfrs. Assn. v NRDC, 470 US 116; United States v Nova Scotia Food Prods. Corp., 568 F2d 240; Portland Cement Assn. v Ruckelshaus, 486 F2d 375, 417 US 921; National Crushed Stone Assn. v Environmental Protection Agency, 601 F2d 111, 449 US 64.) II. DEC violated the State Environmental Quality Review Act. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359.)

      Robert Abrams, Attorney-General (Francis J. Keehan, O. Peter Sherwood, Peter H. Schiff and Douglas H. Ward of counsel), for respondent.
    I. DEC fully complied with the substantive and procedural requirements of SEQRA. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 60 NY2d 805; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862; Aldrich v Pattison, 107 AD2d 258; Matter of Niagara Recycling v Town Bd., 83 AD2d 335, 56 NY2d 859; Sierra Club v Morton, 510 F2d 813; Township of Lower Alloways Creek v Public Serv. Elec. Gas Co., 687 F2d 732; Vermont Yankee Nuclear Power Corp. v NRDC, 435 US 519; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215.) II. DEC complied with the relevant provisions of the State Administrative Procedure Act. (Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of Rostlee Assocs. v Amelkin, 121 AD2d 725; Matter of Frishman v Schmidt, 96 AD2d 1043, 61 NY2d 823; Connecticut Light & Power Co. v Nuclear Regulatory Commn., 673 F2d 525.)

      Philip Weinberg for intervenors-respondents.
    I. Appellants’ challenges based on the State Administrative Procedure Act, mostly not raised by them at Special Term, are hypertechnical and without substance. The Department of Environmental Conservation fully met the requirements of the State Administrative Procedure Act, and appellants’ familiarity with the Technical and Operational Guidance Series, essentially similar to these standards, totally undermines their claimed lack of notice or opportunity to comment. (Carples v Cumberland Coal & Iron Co., 240 NY 187; Segar v Youngs, 45 NY2d 568; Gilmour v Colcord, 183 NY 342; Lustfogel v Bodek, 264 App Div 702, 265 App Div 991, 290 NY 931; Hecht v City of New York, 60 NY2d 57; Matter of Arbor Oaks Civic Assn. v Zoning Bd. of Appeals, 112 AD2d 988, 66 NY2d 604; Matter of City School Dist. v Tonawanda Educ. Assn., 64 NY2d 645; Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791; Golden

      v Metropolitan Transp. Auth., 126 AD2d 128.) II. Appellants, whose interests are economic, lack standing to challenge the Department’s compliance with SEQRA. In any event the impact statement conscientiously discussed the consequences of, and alternatives to, those standards. There was nothing arbitrary or capricious in its consideration of those elements, and, as both courts below properly held, the statement amply satisfied the mandate of the act. (County of Franklin v Connelie, 95 Misc 2d 189, 68 AD2d 1000; Matter of New York State Bldrs. Assn. v State of New York, 98 Misc 2d 1045; Seawall Assocs. v City of New York, 134 Misc 2d 187; Matter of United Petroleum Assn. v Williams, 102 AD2d 491, 65 NY2d 708; Aldrich v Pattison, 107 AD2d 258; Matter of Schiff v Board of Estimate, 122 AD2d 57; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Sigety v Ingraham, 29 NY2d 110; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 60 NY2d 805.)
   OPINION OF THE COURT

Bellacosa, J.

This case is about the State regulating the quality of its waters and preventing direct pollution of those waters by industrial users and dischargers. A wave of environmental acronyms and jargon, and the "high tech” complexity of this matter, could easily becloud the fundamental issue: Did the Department of Environmental Conservation (the Department), in its procedures for and promulgation of amended regulations as to water quality standards, violate statutory requirements of notice and of meaningful opportunity to be heard? We agree with the lower courts, but for different reasons, that the Department should prevail and we affirm.

Appellant Industrial Liaison Committee (the Committee) is an unincorporated association of approximately 25 self-described "significant industrial dischargers” into the Niagara Falls Wastewater Treatment Plant and into the surface waters of the State. The Committee, with two of its industrial members, instituted an article 78 proceeding seeking to annul the Department’s amendments to 6 NYCRR parts 701 and 702 as violative of the requirements of the State Administrative Procedure Act, State Environmental Quality Review Act (SEQRA), and the Environmental Conservation Law (ECL).

This controversy concerns ambient water quality standards which are used on a substance specific basis to determine effluent limitations in permits issued under the State Pollutant Discharge Elimination System (SPDES). The permits, on an applicant specific basis, set water-quality-based-discharge limitations for regulated substances. Prior to the promulgation of the water quality standards at issue in this case, the Department had on a case-by-case basis utilized numerical criteria contained in a nonpromulgated Technical and Operational Guidance Series (TOGS) to set effluent discharge limits in SPDES permits. When the Department initially proposed and considered formal regulations, it intended that they should reflect the methodology used in calculating ambient water quality standards and that the existing TOGS numerical guidance criteria for approximately 200 toxic substances be issued as an appendix to 6 NYCRR part 701.

Public meetings, conferences, seminars and workshops on water quality standards were held throughout the State for more than six months prior to the publication of the notice of proposed rule making. Notice of proposed rule making containing the public hearing dates was filed with the Secretary of State on September 11, 1984 and published in the State Register on September 26, 1984 (State Administrative Procedure Act § 202 [1] [f] [ii]). On September 14, 1984, the Department published a notice of public hearing in accord with ECL 17-0301 (4) which also provided information on how to obtain copies of the Draft Generic Environmental Impact Statement (DGEIS), the proposed amendments, the Regulatory Impact Statement (RIS), and the Regulatory Flexibility Analysis. Legal notice of the public hearing dates was published in newspapers of general circulation on September 25, direct mailed to some 6,000 interested individuals, industry representatives and municipalities, and published in the Department’s Environmental Notice Bulletin on October 3,1984.

Due to the technical nature of the proposed rule amendments, the Department made available 183 "fact sheets” containing aquatic based and human health based background data for the numerical water quality standards on the 95 enumerated chemical and metallic substances which were included in the finally promulgated regulations. It withdrew from the proposed rule amendments the balance of the substances for which fact sheets were not provided; it also withdrew any proposed toxic substances for which the originally proposed numerical standard varied by a factor of plus or minus 20% from its fact sheet. Public hearings were held in November 1984 on five different dates in separate locations around the State. The comment period was twice extended so it did not close until three months after the last of the public hearings and five weeks after the last set of fact sheets was made available. There was extensive public comment on the proposed amendment which was responded to in a "Responsiveness Summary” made part of the final generic environmental impact statement (FGEIS). The ambient water quality standards which were finally adopted retained the exact TOGS numerical limits for the substantial majority of the substances. For 5 of the 95 substances, the amendments were more stringent than the ambient water quality standards which had existed under the TOGS criteria.

The article 78 proceeding was disposed of by the Supreme Court rejecting, on the merits, each of the technical and legal claims advanced by the Committee and dismissing the petitions. The Appellate Division unanimously affirmed and we granted leave to appeal.

We hold that statutory requirements for public notice, for meaningful comment and for opportunity to be heard were satisfied in this case. The Department’s proposal of regulations formalizing specific scientific standards already in use by the administrative agency and disclosure of the scientific basis for all finally adopted standards complied with statutory prerequisites under all the facts, circumstances and history attending this particular rule amendment process. When a new regulatory provision adopts existing standards which predate the enactment of State Administrative Procedure Act § 202-a and results in no new significant economic changes for the regulated community, it is not error to fail to provide a detailed administrative explication in a Regulatory Impact Statement of the economic impacts of the promulgation of those parts. Similarly, it is not arbitrary and capricious or a violation of existing law for the agency, when it takes its "hard look” and makes its "reasoned determination” under SEQRA, to ignore speculative environmental consequences which might arise under the new or amended regulation.

We note at the outset that the Appellate Division employed the incorrect standard of review concerning the Department’s compliance with the State Administrative Procedure Act. Regulatory promulgation consistent with the provisions of the State Administrative Procedure Act is not a matter which rests within the particular and specialized expertise of the Department. Interpretation of the State Administrative Procedure Act is not dependent on an understanding of technical data or underlying operational practices. The statute outlines uniform administrative procedures that State agencies must follow in their rule making, adjudicatory and licensing processes and that courts review in their usual de novo adjudicative function. Thus, the legislative direction to these agencies is compliance, not implementation. As specialized knowledge is not necessarily implicated, the courts use their own competence to decide issues of law raised, since those questions are of ordinary statutory reading and analysis (see, Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 66 NY2d 722, 724). Our reasoning does not mean that an agency’s special expertise will never be relevant or specially respected as to a question arising under the State Administrative Procedure Act (see, Vermont Yankee Nuclear Power Corp. v NRDC, 435 US 519), but that the principle of deference should be applied only where such expertise is relevant. It is not in this case.

At the time these regulations were proposed, the State Administrative Procedure Act provided that ”[u]nless a different time is specified by statute, the notice of proposed rule making must appear in the state register at least thirty days prior to * * * the first public hearing on a proposed rule” (State Administrative Procedure Act § 202 [1] [a] [ii]). Copies of the complete text of the proposed rule, the RIS, and the Regulatory Flexibility Analysis are to be made available to the public on the date notice is first given (State Administrative Procedure Act § 202 [1] [e]). If the complete text of the proposed rule, RIS, or Regulatory Flexibility Analysis exceeds 2,000 words, the notice shall include a summary of that item (State Administrative Procedure Act § 202 [1] [f] [iii], [iv], [v]). The promulgation of a new rule must be done in substantial compliance with the State Administrative Procedure Act’s provisions (State Administrative Procedure Act § 202 [8]).

The Department provided notice of its intention to promulgate the amendments to the regulations more than five weeks before the first public hearing, alerted the public (including, of course, these affected petitioners) to the fact that "[t]he proposed revisions describe methodologies and protocol used to develop numeric standards for toxic substances in New York State water for the protection of human health, fish and wildlife”, and provided a synopsis of the RIS, Regulatory Flexibility Analysis and the proposed amendments. The last set of fact sheets on the standards actually promulgated was made available to the public, although not required as a condition of the notice under the State Administrative Procedure Act, more than a month before the close of the hearing comment period. This notice complied with the State Administrative Procedure Act requirements and was adequate to provide a timely opportunity for meaningful comment.

On these facts, the RIS also adequately provided "[a] statement indicating the projected costs (i) for the implementation of, and continuing compliance with, the rule” (State Administrative Procedure Act § 202-a [3] [c]), by setting forth the additional expenditures required by the amendments. The Department concluded that the majority of the ambient water quality standards would have no significant economic impact due to the fact that the numerical values were not sufficiently different from those used for deriving effluent limitations under the TOGS’ criteria as to have a fiscal impact on holders of SPDES’ permits. Thus, the Department furnished projected costs only for those standards which replaced existing TOGS criteria with more stringent ambient water quality standards resulting in additional costs to regulated entities. Insofar as the TOGS standards were informally adopted prior to the enactment of the RIS requirement (L 1983, ch 344 [eff Jan. 1, 1984]), the economic impact associated with the introduction of TOGS arose before economic impact analysis was mandated and the Department’s decision not to discuss the impacts at the time of regulatory enactment is not an attempt at impermissible bootstrapping as the Committee argues.

The Committee’s primary procedural complaint flows from what it claims the Department failed to do in providing timely notice and disclosure of the background data upon which the Department relied in setting the ambient water quality standards. ECL 17-0301 (4) provides that "[t]he department, after proper study, and after conducting public hearings upon due notice, shall adopt and assign standards of quality and purity for each such classification necessary for the public use or benefit contemplated by such classification” (emphasis supplied). The notice of public hearing issued in accord with ECL 17-0301 (4) provided notice of the proposed hearing dates, which were commenced at least 15 days after the filing of notice of completion of the DGEIS but within 60 days thereof (see, ECL 8-0109 [5]; 6 NYCRR 617.8 [d] [2]). Thus, the Department did all it was supposed to do.

Nothing in the statute or regulations governing environmental impact statements requires an agency to make the raw data upon which its environmental impact statement is based available to the public (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 422). Also persuasive is that the Department, on its own initiative and consistent with our view that the public comment purpose of SEQRA is best served by broad disclosure (id., at 422), made the fact sheets available to the public and only promulgated those regulations, for which it had allowed at least five weeks to comment on, after the release of the fact sheets.

Substantively, the Department addressed the significant nonspeculative environmental impacts which could be anticipated as a consequence of the promulgation of the amendments in the relevant DGEIS and FGEIS (see, Matter of Jackson v New York State Urban Dev. Corp., supra, at 417; Aldrich v Pattison, 107 AD2d 258, 266; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 491, affd 60 NY2d 805; 6 NYCRR 617.14 [c] [need only discuss impacts which can be reasonably anticipated]). It took a hard look at the need for the numerical standards and their purpose, explained the methodology employed, the benefits the standards would produce, and the alternatives to the methods used. Insofar as the amendments would require a decrease in toxic discharges, the Department found that they had a positive environmental effect and that there were no adverse effects to be minimized.

The protagonists in respective briefs characterized this case as "the most important administrative law case of the 1980’s” (appellant’s brief, at 21) or "a run-of-the-mill Article 78” (intervenor’s brief, at 12). It is neither. Important principles of rule making by the principal environmental administrative agency were at work in a critical regulatory area. We conclude that the governing statutes were satisfied by the Department in the complex interplay and over-all history of procedural developments in this case based on ordinary rules of judicial review and interpretation of applicable statutory bodies of law like the State Administrative Procedure Act.

The remaining issues presented by the parties have also been considered and are without merit.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs.