author: Gabrielli, J. Jasen, J.

text:
    City of Buffalo, Appellant, v Cargill, Incorporated, Respondent. County of Erie, Appellant, v Cargill, Incorporated, Respondent.
    Argued January 12,1978;
    decided February 16,1978

      POINTS OF COUNSEL

      Leslie G. Fosehio, Corporation Counsel (Charles S. Desmond and Hugh B. Scott of counsel), for appellant in the first above-entitled action.
    I. The decision of the court below in holding that the city taxes were "paid” when the city in theory of law "purchased” its own tax liens is erroneous in fact and in law. (Matter of Ueck, 286 NY 1; Strong v Reeves, 280 App Div 301, 306 NY 666; Schenck v State Line Tel. Co., 238 NY 308; Smith v Kirkpatrick, 305 NY 66; Matter of Tate v Dickens, 276 App Div 94; Matter of Gelbin v Metro Goldwyn Mayer Pictures, 261 App Div 196, 1010.) II. The policy of New York State, as expressed in the Real Property Law and other statutes and in the common law, as well as the necessities of local government, and reason and fairness, and the very language of the present controlling statutes, require a holding that defendant, a resident corporate owner, remains liable in personam for unpaid city realty taxes, regardless of whether the tax liens are "deemed” to have been "sold” to the city itself. (Williams v Townsend, 31 NY 411; Smith v Cornell, 111 NY 554; Village of Lynbrook v Otto, 266 NY 308; Village of Massapequa Park v Massapequa Park Villa Sites, 278 NY 28; Seabury v Bowen, 3 Bradf 207; Griswold v Griswold, 4 Bradf 216; Milwaukee County v White Co., 296 US 268.) III. The court below erred in holding that Matter of Ueck (286 NY 1) requires dismissal here, since (a) not only are there factual differences between this case and Ueck, but the statutes on which Ueck is based have been changed since Ueck so that they now clearly impose, under circumstances like those in this case, personal liability on a corporation having a place of business in the city, for unpaid city taxes; (b) this court held in Matter of County of Nassau (Gelb — Siegel) (24 NY2d 621) as did the dissenting opinion in the court below in the present case, that the Ueck language is no longer applicable since under the modern statutes, the city or county does not, by "purchasing” at its tax sale, become the owner of the realty, nor are the taxes "paid”. (Town of Amherst v County of Erie, 260 NY 361; City of Buffalo v Dankner, 48 AD2d 572, 38 NY2d 826; Sharkey v Thurston, 268 NY 123; Riggs v Palmer, 115 NY 506; Surace v Danna, 248 NY 18; Motor Vehicle Acc. Ind. Corp. v Eisenberg, 18 NY2d 1; Kauffman & Sons Saddlery Co. v Miller, 298 NY 38; County of Nassau v Lincer, 254 App Div 746.)

      Alexander C. Cordes, Gerard R. Haas, John K. McCormick and Paul F. Jones for respondent in the first above-entitled action.
    I. The annual tax sales held by the city extinguished whatever real estate tax liability Cargill may have had for the period 1970-1971 through 1974-1975. (Matter of Ueck, 286 NY 1; Canino v Engelstein, 86 Misc 2d 1066, 58 AD2d 981; Empire Lien Corp. v Young Transp., 59 Misc 2d 782; Matter of Van Korb, 266 App Div 1041; Matter of Wood, 187 Misc 972, 273 App Div 937; Matter of Schmitt, 187 Misc 988; Matter of Martin, 187 Misc 980; Matter of County of Nassau [Gelb—Siegel], 24 NY2d 621; Seligman v Friedlander, 199 NY 373; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60.) II. The city, having commenced an in rem foreclosure action against the Cargill properties and others, and having failed to sever the Cargill properties therefrom, upon notice and in accordance with the statute, could not thereafter maintain this inconsistent separate action to impose personal liability. (Selzer v Baker, 295 NY 145; American Woolen Co. of N. Y. v Samuelsohn, 226 NY 61.)

      Thaddeus J. Szymanski, County Attorney (Jan P. Egger of counsel), for appellant in the second above-entitled action.
    I. Cargill is personally liable for real property taxes as a matter of law. (Village of Massapequa Park v Massapequa Park Villa Sites, 278 NY 28; City of New York v McLean, 57 App Div 601, 170 NY 374; Goergen v Maar, 2 AD2d 276; Matter of Schmitt, 187 Misc 988; City of Buffalo v Dankner, 48 AD2d 572.) II. Matter of Ueck is not controlling because it is distinguishable from the present circumstances both on its law and its facts. (Matter of Ueck, 286 NY 1; Matter of Nassau County [Gelb—Siegel], 24 NY2d 621; Town of Amherst v County of Erie, 260 NY 361; City of Buffalo v Dankner, 38 NY2d 826; Matter of Grifenhagen v Ordway, 218 NY 451.) III. The acquisition by the county of tax sale certificates representing its tax liens on the subject property does not extinguish Cargill’s personal liability, because the tax debt owed to the county remains unpaid. (Village of Massapequa Park v Massapequa Park Villa Sites, 278 NY 28; People v Gates, 56 NY 387; Antinora v Nationwide Life Ins. Co., 76 Misc 2d 599.) IV. The election of remedies doctrine does not support Cargill’s motion to dismiss. (Matter of Wood, 187 Misc 972; Strong v Reeves, 280 App Div 301, 306 NY 666; Riviera Congress Assoc, v Yassky, 48 Misc 2d 282, 25 AD2d 291, 18 NY2d 540; Rennie v Rennie, 261 App Div 587, 287 NY 86; Saso v State of New York, 20 Misc 2d 826; Vitarelli v Brunson Constr. Corp., 235 App Div 804; Schenck v State Line Tel. Co., 238 NY 308; Smith v Kirkpatrick, 305 NY 66; Abramson v Leo, 240 App Div 343; Matter of Tate v Dickens, 276 App Div 94.) V. Matter

      of Ueck, upon which the court below relied, should be overruled or limited to the facts upon which it was determined.

      Alexander C. Cordes, Gerard R. Haas, John K. McCormick and Paul F. Jones for respondent in the second above-entitled action.
    I. The annual tax sales held by the county extinguished whatever real estate tax liability Cargill may have had for the years in which the sales were held. (Matter of Ueck, 286 NY 1; Canino v Engelstein, 86 Misc 2d 1066, 58 AD2d 981; Empire Lien Corp. v Young Transp., 59 Misc 2d 782; Matter of Van Korb, 266 App Div 1041; Matter of Wood, 187 Misc 972, 273 App Div 937; Matter of Schmitt, 187 Misc 988; Matter of Martin, 187 Misc 980; Matter of County of Nassau [Gelb—Siegel], 24 NY2d 621.) II. The county, having commenced an in rem foreclosure action, against the Cargill properties and others, and having failed to sever the Cargill properties therefrom, upon notice and in accordance with the statute, could not thereafter maintain this inconsistent separate action to impose personal liability. (Selzer v Baker, 295 NY 145; American Woolen Co. of N. Y. v Samuelsohn, 226 NY 61.)
   OPINION OF THE COURT

Gabrielli, J.

The issue on these appeals is whether the acquisition of a tax sale certificate by a taxing district as the result of a tax sale held pursuant to established statutory procedures, extinguishes the right of that taxing district to thereafter impose personal liability for the unpaid taxes in a separate action against the taxpayer. The Appellate Division, relying on this court’s decision in Matter of Ueck (286 NY 1), held that the taxpayer’s personal liability was extinguished when the tax district acquired the tax sale certificates at a duly authorized tax sale. We affirm.

Cargill, Inc., a Delaware corporation with an office and place of business in the City of Buffalo, was the owner in fee of three parcels of real property located in the City of Buffalo, County of Erie, when it ceased paying real property taxes to the city in 1970 and the county in 1971. Cargill failed to pay its taxes in each subsequent year as well, and following these delinquencies the city proceeded to conduct tax sales covering the property. Since no sufficient bids were entered for these properties, the city bid in those parcels, as provided by section 612 of the City Charter and subdivision 2 of section 1160 of the Real Property Tax Law. Following these sales the city issued to itself certificates of sale authorized by section 614 of the City Charter and section 1160 of the Real Property Tax Law. Likewise the county, at its tax sales in which similar procedures were followed, purchased tax certificates for each year of tax default pursuant to Erie County Tax Law (L 1942, ch 812, as amd by L 1969, ch 682).

The city and county commenced these actions to collect personally from the defendant for unpaid property taxes under section 926 of the Real Property Tax Law. The city seeks $677,319, including interest and penalties, for unpaid taxes and alleges that if it is relegated to collect only from the property it will engage in a losing proposition since the value of the property is exceeded by the outstanding taxes plus the cost of demolition of the existing abandoned structures now situated on the property. The county seeks $218,963.71. Section 926 of the Real Property Tax Law provides, in pertinent part:

"1. The owner of real property, or of an interest therein, if a resident of the city or town in which such property or interest therein is assessed and if his name is correctly entered on the roll, shall be personally liable for the taxes levied thereon. The term 'resident’ shall include a corporation having within such city or town a place for the regular transaction of business or in actual possession of real property therein.
"2. After the thirty-first day of January, the collecting officer may call on any person personally liable for unpaid taxes listed on the roll and demand payment thereof. If any such person refuses to pay the taxes demanded, the collecting officer may levy upon any personal property in the county belonging to or in the possession of such person and, unless the taxes are paid prior thereto, cause the same to be sold at public auction for the purpose of paying the taxes due and the expense of levy and sale.”

Cargill, relying on Matter of Ueck (286 NY 1, supra), moved to dismiss the complaints in both actions, contending that its personal liability for unpaid taxes was extinguished when the city and county made their purchases at the annual tax sales. In Matter of Ueck (supra) the decedent, Alfred Ueck, had owned parcels of real property in the City of Buffalo, on which real property taxes had not been paid from 1926 to 1937. Tax sales had been held by the city and county respectively and, following statutory procedures for the sale of the property for the payment of unpaid taxes, they each obtained certificates of sale. Following Ueck’s death the taxing districts sought to impose personal liability upon his estate for the real property taxes. This court held that the personal liability of the taxpayer for the taxes was discharged when the taxing districts acquired the tax certificates at a sale held pursuant to the appropriate real property tax law, stating that "[t]he policy of the State and of the political subdivisions affected indicates clearly that when the decedent’s real estate was sold and bid in by the city of Buffalo or the county of Erie for non-payment of taxes, there was payment and discharge of such taxes and that the purchaser, whether city or county, became the inchoate titleholder of the land, evidenced by the tax sale certificate” (Matter of Ueck, 286 NY 1,17-18, supra).

The city charter provisions before this court in Ueck are essentially the same provisions before us now. The charter provides that the collection of every tax remaining unpaid "may be enforced by a sale of the real estate” (§ 610) after appropriate notice which shall state that the real estate will "be sold at public auction to the highest bidder, to pay the taxes” (§ 611). If no bid is made in "an amount sufficient to pay the taxes” the assessor "shall bid in for the city” such parcels since no land can be sold for less than the outstanding taxes and charges (§ 612). After sale, a tax certificate is issued which describes the real estate and states "that the same was sold for unpaid taxes and assessments” (§ 614). The purchaser, whether the city or some other person, was still required to "pay” for its purchases (§ 614). During certain proscribed periods of time the owner of the land may redeem the property by paying the amount of the tax, plus charges and fees (§§ 613, 618-621). If no redemption is made, the holder of the certificate (whether the city or another) may apply for and receive a "conveyance of the real estate so sold, which conveyance shall vest in the grantee an absolute estate in fee” (§ 623).

Emphasizing the statutory language as noted above, which declared that the tax certificate is exchanged in satisfaction of the unpaid taxes, this court held that, under this statutory scheme, the tax liability as it affects the taxpayer personally, had been extinguished. The issue was not whether the taxes had actually been paid but whether they are considered paid as far as the taxpayer is concerned (Matter of Ueck, 286 NY 1, 6, supra). Indeed, the city charter itself declares that the real estate will be sold "to pay the taxes” (§ 611). The evidence of the payment of the taxes and extinguishment of any personal liability is the tax certificate. The city charter provides that the certificate shall state that it was "sold for unpaid taxes” (§ 614). Whether this provision amounts to a declaration that an actual or theoretical payment has occurred, the result is that a payment as a matter of law has been effectuated and the personal liability for the taxes is extinguished by that payment.

Prior to a tax sale, the tax district may seek payment for overdue real estate taxes from either the property or the taxpayer, personally. However, when the taxing district acquires a tax sale certificate it, in essence, exchanges its prior rights for the rights which attach, by virtue of law, to the certificate. Personal liability is not one of those rights (see Empire Lien Corp. v Young Transp., 59 Misc 2d 782). Nowhere in the charter nor in any statute or regulation does the holder of a tax certificate acquire the right to seek payment on that certificate from the taxpayer personally. This is not to say that a tax certificate does not provide significant benefits for the holder. The holder may, after the period of redemption has been extinguished, take possession of the property, by eviction if necessary (§ 617) or he may obtain an administrative conveyance of an absolute estate in fee (§ 623). These simplified procedures for obtaining possession or title attach only to the holder of the tax certificate.

Under these statutory provisions the court in Ueck determined, and properly so, that the tax sale extinguished the taxpayer’s personal liability and, further, that the holder of a tax certificate may not sue the taxpayer on a claim of personal liability. The charter provisions before the court in this case are essentially the same as those considered in Ueck and, absent a clear legislative intent to abrogate the effect of Ueck, it must control.

The city urges that the effect of the charter provisions has been changed by the adoption of title 3 of article 11 of the Real Property Tax Law (Resolution 185, Proceedings of the Council, City of Buffalo, 1970, Part II, p 2042). Title 3 merely provides that a taxing district, holding its own tax certificates, may pursue a simplified in rem foreclosure procedure. Section 1120 of the Real Property Tax Law (the first provision in title 3) provides that:

"1. Whenever it appears that a tax district owns a tax lien which has been due and unpaid for a period of at least four years from the date on which the tax or other legal charges represented thereby became a lien, such tax lien, except as otherwise provided by this title, shall be summarily foreclosed by the tax district in the manner provided in this title notwithstanding the provisions of any general, special or local law and notwithstanding any omission to hold a tax sale prior to such foreclosure.
"2. Ownership of a tax lienor of a tax sale certificate or of any other instrument evidencing such tax lien by the tax district issuing the same shall be evidence of the fact that the tax or other legal charges represented thereby have not been paid to the tax district or assigned by it.”

This section provides a rule of evidence that a tax district holding its own tax sale certificate may avail itself of the in rem foreclosure proceedings; and this rule expands the rights that attach to the tax certificate when held by a taxing district to include the availability of the simplified in rem proceedings. It does not expand the rights under a tax certificate to encompass personal liability. Indeed, a personal judgment cannot be entered under the in rem proceedings (Real Property Tax Law, § 1124, subd 1).

The adoption of title 3 by the city in no way altered the basic tax provisions applicable here but merely expanded the city’s available remedies. Likewise, this additional remedy did not alter the effect of the city charter provisions which, interestingly, remained the same as those considered in Ueck. Thus, there can be no doubt that Ueck is dispositive of the city’s claim and the purchase by the city of the tax sale certificates extinguished the taxpayer’s personal liability.

The position advanced by the county in this case is likewise unconvincing. The Erie County Tax Law (L 1942, ch 812, as amd by L 1969, ch 682) provides for substantially the same procedures and rights as those embodied in the Buffalo City Charter as already considered above. When real estate taxes remain unpaid the county shall hold a tax sale to "sell tax certificates upon such real estate for the payment of such tax” (§ 7-1.0) and the notice of such sale shall state that the tax sale is being held "to satisfy the taxes, fees, penalties interest and charges which may be due” (§ 7-2.0); and, of importance, a tax certificate may be sold only for a sum sufficient to pay all the taxes and charges due (§ 7-5.0). By statutory declaration, when the county purchases at such a sale it shall obtain the same rights as an individual purchaser (§ 7-7.0); and similar redemption rights are provided (§§ 7-13.0, 8-1.0 — 8-7.0). Upon failure to redeem within the specified time the holder of a tax certificate may obtain an administrative conveyance of an absolute fee (§§ 8-8.0, 8-11.0).

Although the statute considered in Ueck and the provisions before us now are essentially the same, the county urges that the amendment in 1969 (L 1969, ch 682) embodied significant changes which evidenced a legislative intent to overturn the effect of Ueck as it applied to the county. The county argues that under the controlling tax law at the time of Ueck "property” was sold, whereas presently only a "tax lien” is sold. The 1969 amendment effected a change in language but any reliance on this change ignores the fact that the focus in Ueck was not on the nature of what was sold but on the purpose and effect of the sale. For example, the amended statute still provides that the tax sale is being held "to satisfy the taxes” (§ 7-2.0) and thus by operation of law the taxes have been paid when the county purchases the tax certificate, just as the taxes would have been paid in full if the certificate were purchased by a private party. Whether the statutes state that it is the "property” or a "tax lien” which is being sold, the effect remains the same. By acquiring the tax sale certificate the tax district obtains the special rights which attach to it but at the same time the right to collect from the taxpayer personally is extinguished because the tax has been paid as a matter of law.

As with the city, the county can point to no legislative history or any other bill or statute which even faintly suggests that the Legislature intended to overturn the holding of Ueck as it affects the county. Nor does the county point to any provisions of law establishing that the holder of a tax certificate may collect personally from the taxpayer. The tax laws are creatures of the Legislature and changes in these laws or the establishment of specific rights under these laws may not be inferred but must be made in clear and express terms (County Securities v Seacord, 278 NY 34, 37; see People v Cook, 34 NY2d 100, 110). The inference of legislative intent suggested here is particularly weak in view of the fact that the basic tax collection scheme found in the city charter and the county law is essentially unchanged. Had the Legislature, at any time, intended that personal liability would survive a tax sale or would attach to a tax sale certificate, it would have been a simple matter to so declare. The Legislature could have easily amended section 926 of the Real Property Tax Law to extend personal liability. But no such declaration has been made and Ueck has been law since 1941. When the Legislature has refrained from changing the rule for 37 years it would be presumptuous of us to attempt to do so now. To reach a contrary result, this court would be remodeling the law on a scale which is well beyond our judicial power (see F. T. B. Realty Corp. v Goodman, 300 NY 140, 148).

A number of property owners, especially in large cities, are finding that the value of their property has decreased to such an extent that continued ownership is no longer profitable or desirable, particularly in view of the ever increasing real property tax liability. Consequently, some owners have ceased paying taxes, realizing that title to the property will eventually vest in another person or the taxing district. The taxing districts in certain instances, on the other hand, may not only lose income but may also become the owners of some of this unwanted real property, which the previous owners can no longer maintain. In some instances the district must assume the additional burden of demolishing dangerous and dilapidated structures. Perhaps a part of this problem lies in an increasing tax burden and our tax statutes which provide for a variety of foreclosure procedures for the collection of unpaid real property taxes. The solution to this dilemma, having ramifications beyond the problem posed by these cases, is one which rests with the Legislature.

We find nothing of substance which distinguishes the present cases from Ueck. Since Ueck has been consistently followed by the courts of this State (see Matter of Van Korb, 266 App Div 1041; Matter of Wood, 187 Misc 972 [Witmer, J], affd 273 App Div 937; Empire Lien Corp. v Young Transp., 59 Misc 2d 782, supra) and in view of the nature of the Ueck rule we deem the doctrine of stare decisis of no small importance. The doctrine is particularly compelling in cases such as these involving property rights and property dispositions (see People v Hobson, 39 NY2d 479, 489; Matter of Eckart, 39 NY2d 493, 500). Likewise, precedents involving statutory interpretation should be accorded great reliability (Matter of Schinasi, 277 NY 252, 265-266) since the Legislature is readily able to make any appropriate change (see People v Hobson, supra; Matter of Eckart, supra, p 499). Adherence to precedent is particularly applicable to interpretations of tax statutes which may effect and influence major decisions that taxpayers must make. Because of the nature of the question in issue here the doctrine of stare decisis is appropriate and the rule announced in Ueck is to be followed.

A contrary result is not dictated by Matter of County of Nassau (Gelb—Siegel) (24 NY2d 621), which is in no wise dispositive of the issue before us. The issue in that case was whether ownership in condemned real property lies with the owner of record at the time of condemnation or with the holder of a tax certificate who obtains a title deed after the condemnation. Intimating that the reference in Ueck to the holders of tax sale certificates as "inchoate titleholders” was dicta, the Nassau court held that under the statute applicable in that case the purchaser of the tax certificate obtained only a lien interest which was extinguished by the condemnation. In determining who had valid ownership at the time of condemnation, the court did not address or consider what effect the purchase of a tax sale certificate has on the personal liability of a taxpayer, which remains the basic and sole issue in these cases. Thus, there is nothing in Matter of County of Nassau to suggest that Ueck is not applicable nor controlling in the present cases.

Accordingly, the orders of the Appellate Division, so far as appealed from, should be affirmed, with costs.

Jasen, J.

(dissenting). Today, this court holds that the acquisition of tax sale certificates by Erie County and the City of Buffalo "purchased” at a tax sale extinguished the defendant taxpayer’s personal liability for delinquent real property taxes. I do not agree.

Critical to the court’s determination in Matter of Ueck (286 NY 1), which the majority finds dispositive of this case, was the court’s interpretation of the language employed in the Erie County Tax Law and the Buffalo City Charter to describe a tax sale conducted to collect delinquent taxes. Interpreting this language literally, the Ueck court held that purchase of a tax sale certificate resulted in the transfer to the purchaser of inchoate title to the underlying property.

At the outset, I view Ueck as having been wrongly decided. By literally interpreting the statutory language contained in the Erie County Tax Law and the Buffalo City Charter, the Ueck court clothed a tax sale wih the legal effectiveness of an immediate transfer of title from the taxpayer to the tax district. Because of the transfer of what it termed "inchoate” title, the Ueck court held that a taxpayer’s personal liability for delinquent real property taxes was discharged upon the tax district’s purchase of a tax sale certificate. (286 NY, at pp 17-18.) In reality, however, the tax district’s purchase of a tax sale certificate had no such effect.

No passage of title, choate or inchoate, occurred upon this event. Certainly no one would contend that the tax district which purchased a tax sale certificate had the power to convey the affected property to a third party. Both the Erie County Tax Law and the Buffalo City Charter afforded the taxpayer a period of time in which to redeem the property "purchased” at the tax sale. As a result, it is clear that the delinquent taxpayer’s property encumbered by a tax lien and "purchased” at a tax sale by the tax district remained the property of the taxpayer until expiration of the redemption period and foreclosure of the lien. (Matter of Ueck, 286 NY, at pp 21, 22 [Lewis, J., dissenting opn].) In essence, the tax sale resulted merely in the assignment of the tax lien. (Williams v Townsend, 31 NY 411.) This event, in my view, is insufficient to extinguish a delinquent taxpayer’s personal liability.

As a practical matter, the majority’s holding permits an owner of real property to reap the commercial benefits of such ownership and yet avoid its accompanying tax consequences. In the present case, defendant Cargill failed to pay its real estate taxes for the years 1970-1974 — a sum amounting to more than $700,000. During this entire period, Cargill continued in possession and control of the property, and its grain elevators located on this property did a gross business in excess of $3,000,000. After having avoided payment of its delinquent taxes for these years, Cargill began, in 1974, to abandon the property, taking with it much of its valuable equipment. To hold as the majority does that the purchase of tax sale certificates extinguishes a delinquent taxpayer’s personal liability leaving the purchasing tax district with recourse only against the now abandoned and commercially worthless property defies both logic and equity. I would overrule Matter of Ueck.

Short of overruling Ueck, I believe that, today, a literal interpretation of the Erie County Tax Act and the Buffalo City Charter no longer requires the result reached by this court over 35 years ago in Ueck.

In the years since this court’s decision in Ueck, the Erie County Tax Law has been amended, resulting in significant changes in its provisions. (L 1942, ch 812, as amd by L 1969, ch 682.) For example, in regard to the nature of a tax sale, the county law formerly provided: "In the event that there is no purchaser for any parcel of land so offered for sale * * * such premises shall be deemed to have been sold to and purchased by the county of Erie.” (§ 7-7.0 [emphasis added].) In contrast, it now utilizes the term tax certificate in place of the terms parcel of land and premises. (§ 7-6.0.)

Similarly, the county law interpreted by this court in Ueck provided for the issuance of "certificates of sale of all lands so bid in by or sold to the county, describing the lands purchased”. (§ 7-8.0 [emphasis added].) As amended, this section now speaks in terms of tax certificates, rather than land sold to the county (§ 7-7.0), and of tax certificates which describe the land affected rather than purchased. (§ 7-7.0.) Although the county law once provided that a purchaser at a tax sale purchases real estate (§ 7-12.0), it now provides that it is a tax lien which is purchased, and not real estate. (§ 7-11.0.)

Finally, in regard to redemption, while the predecessor of today’s Erie County Tax Act considered in Ueck provided that if land sold was not redeemed the purchaser would be issued a deed (§ 7-8.0), the act now provides for issuance of a deed "[i]f the amount of taxes on the land so affected by the sale of a tax certificate shall not be paid”. (§ 7-7.0 [emphasis added].) The right of redemption itself, having been formerly characterized as existing in real estate sold for taxes (§ 7-14.0) is now spoken of as existing in real estate affected by tax certificates sold. (§ 7-13.0.)

In light of these amendments, even a literal interpretation of the present Erie County Tax Act no longer necessitates a holding that a taxpayer’s personal liability for delinquent taxes is extinguished upon a tax district’s acquisition of a tax sale certificate. It is abundantly clear from the present statutory language that a purchaser of such a certificate is intended to receive only a lien as opposed to inchoate title to the affected property. This conclusion is in accord with our recent unanimous decision in Matter of County of Nassau (Gelb—Siegel) (24 NY2d 621), in which we, distinguishing the statutory language considered in Ueck, held that, pursuant to the Real Property Tax Law, a purchaser of a tax sale certificate "acquired only a lien interest in the subject property.” (Id., at p 626.) I conclude, therefore, that a delinquent taxpayer’s personal liability should not be extinguished upon the "purchase” by the county of a tax sale certificate.

With respect to the Buffalo City Charter, although many of the provisions interpreted by this court in Ueck remain the same, the city has since that time adopted title 3 of article 11 of the Real Property Tax Law. (Resolution 185, Proceedings of the Council, City of Buffalo, 1970, Part II, p 2042.) This title, which establishes an in rem foreclosure procedure for tax districts holding their own tax sale certificates, provides in its first section: "Ownership of a tax lienor of a tax sale certificate or of any other instrument evidencing such tax lien by the tax district issuing the same shall be evidence of the fact that the tax or other legal charges represented thereby have not been paid to the tax district or assigned by it.” (Real Property Tax Law, § 1120, subd 2 [emphasis added].)

Although as the majority states the purpose of this section is an evidentiary one, its language indicates a recognition of the true nature of the real property interest purchased by a tax district at a tax sale. A tax certificate merely evidences the existence of a tax lien; it does not evidence ownership of title, whether choate or inchoate. While it is true that the provisions of title 3 as adopted by the City of Buffalo do not supersede any of the city’s charter provisions (Real Property Tax Law, § 1104), I believe the adoption of this title by itself is sufficient to preclude the result reached in Ueck — a result reached by a literal interpretation of the city’s charter.

For this reason, as in the case of the present Erie County Tax Act, I would hold that the language contained in the Buffalo City Charter, as supplemented by title 3 of the Real Property Tax Law, sufficiently demonstrates the intent of the tax district to view the purchase of a tax sale certificate as the purchase of a tax lien and not as the purchase of the property itself with its resultant discharge of the delinquent taxpayer’s personal liability.

Accordingly, I would reverse the order of the Appellate Division and grant summary judgment in favor of the City of Buffalo and the County of Erie against Cargill, Inc.

Chief Judge Breitel and Judges Jones and Wachtler concur with Judge Gabrielli; Judge Jasen dissents and votes to reverse in a separate opinion in which Judge Cooke concurs; Judge Fuchsberg taking no part.

In each case: Order affirmed, etc.

       The adoption of title 3 did not supersede any of the charter provisions but merely added a new in rem foreclosure proceeding to the city’s available remedies (Real Property Tax Law, § 1104).


source: Caselaw Access Project

author: Cooke, J. Wachtler, J.

license: Public Domain

text:
    Binghamton Civil Service Forum, Appellant, v City of Binghamton, Respondent.
    Argued January 3,1978;
    decided February 22,1978

      POINTS OF COUNSEL

      Frederick P. Conte for appellant.
    I. The court below erred in finding the arbitrator’s award violative of the public policy established by section 30 of the Public Officers Law. (Lawrence Constr. Corp. v State of New York, 293 NY 634; People v Clampitt, 34 Misc 2d 766; Matter of People ex rel. Sherwood v State Bd. of Canvassers, 129 NY 360; Matter of Haller v Carlson, 42 AD2d 829; Matter of Dawson, 231 App Div 490.) II. The award of the arbitrator was not in contravention of public policy; the arbitrator decided the submitted issue. (People v Moore, 85 Misc 2d 4; Local 453, Int. Union of Elec., Radio & Mach. Workers, AFL-CIO v Otis Elevator Co., 314 F2d 25; International Assn, of Machinists, Dist. No. 8, AFL-CIO v Campbell Soup Co., 406 F2d 1223; Matter of Associated Gen. Contrs., N. Y. State Ch. [Savin Bros.], 45 AD2d 136, 36 NY2d 957; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Matter of Western Union Tel. Co. [American Communications Assn.], 299 NY 177; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Matter of Howard & Co. v Daley, 27 NY2d 285; Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380.) III. The policy of the Federal and State government is to encourage voluntary arbitration. (Steelworkers v Warrior & Gulf Co., 363 US 574; Steelworkers v American Mfg. Co., 363 US 564; Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Amer., 37 NY2d 91; Matter of Weinrott [Carp], 32 NY2d 190.) IV. Arbitrators are granted broad powers and the court has limited rights of review of arbitration awards. (Steelworkers v Enterprise Corp., 363 US 593; Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274; Matter of S & W

      Fine Foods [Office Employees Int. Union, Local 153, AFL-CIO], 8 AD2d 130, 7 NY2d 1018; Matter of Wenger & Co. v Propper Silk Hosiery Mills, 239 NY 199; Fudickar v Guardian Mut. Life Ins. Co., 62 NY 392; Matter of Granite Worsted Mills [Aaronson Cowen, Ltd.], 25 NY2d 451; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578.) V. The matter herein was arbitral and the award is binding on the parties. (United Buying Serv. Int. Corp. v United Buying Serv. of Northeastern N. Y., 38 AD2d 75; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Gulf States Tel. Co. v Local 1692, Int. Brotherhood of Elec. Workers, AFL-CIO, 416 F2d 198; Matter of Overseas Distrs. Exch. [Benedict Bros. & Co.], 5 AD2d 498.) VI. The decision of the court below creates disparate treatment. (Matter of Merrin v Town Bd. of Town of Kirkwood, 48 AD2d 992.)

      Patrick J. Raymond, Corporation Counsel (John W. Park of counsel), for respondent.
    I. The award of the arbitrator herein is contrary to the public policy of the State of New York and should therefore be vacated. (Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Matter of Western Union Tel. Co. [American Communications Assn.], 299 NY 177; Matter of Publishers’ Assn, of N. Y. City, 280 App Div 500; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614.) II. The arbitrator’s award addresses a subject which could not have been negotiated by the parties and therefore he exceeded his authority under the contract. (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Exercycle Corp. [Maratta], 9 NY2d 329.) III. Arbitration of discharge and discipline of civil service employees is prohibited by law. (Washington Life Ins. Co. v Clason, 162 NY 305.)
   OPINION OF THE COURT

Cooke, J.

The question presented in this appeal is whether the award of an arbitrator, based upon issues submitted to him by the parties to a collective bargaining agreement, is required to be vacated as violative of the public policy of this State. The arbitrator found that there was no just cause for the discharge of a municipal employee, who admitted receiving unlawful gratuities, and modified the penalty imposed, directing that the employee make restitution to the city-employer of the gratuities received and ordering him suspended for six months without pay.

During the criminal trial of a salesman, who solicited business from the City of Binghamton, Richard Cornwell, a city building and maintenance superintendent, admitted, under a grant of immunity, that he received gifts from the defendant. As a result of this and additional testimony by other city employees, the salesman was convicted of bribery in the second degree (Penal Law, § 200.00). Upon the conclusion of the trial, Cornwell was summarily discharged by the Mayor of Binghamton for "bribe-receiving” based upon admissions made by him at the trial of the salesman.

The Binghamton Civil Service Forum, the duly organized representative of city employees, filed a grievance under the collective bargaining agreement then in force which provided that "[n]o employee shall be disciplined or discharged without just cause.” The agreement further provided a four-step grievance procedure culminating in arbitration in which any dispute between the parties, including one concerning the meaning or interpretation of the collective bargaining agreement, was to be resolved.

With no further action being taken by either party, an arbitrator was chosen and the Forum and the city stipulated the following issue for resolution: "Was Richard Cornwell discharged for just cause pursuant to [the collective bargaining agreement]?” At the conclusion of the hearing, in which each party fully participated, the arbitrator made an award which found that Cornwell’s discharge was not for just cause pursuant to the terms of the agreement and reduced the penalty imposed to a six-month suspension without pay.

Upon motion to confirm the award, the city cross-moved to vacate, claiming for the first time outside of the arbitral forum, that by modifying the penalty imposed the arbitrator exceeded his powers, rendered an award on a matter which was not a term and condition of employment and that the award was contrary to the expressed public policy of this State. The Appellate Division, reversing the determination of the Supreme Court which had confirmed the award, vacated the award holding it violative of public policy on the ground that "municipal authorities [may] not be restricted in their power to discharge employees who participate in criminal acts in the absence of a clear and express waiver of that power.” (Matter of Binghamton Civ. Serv. Forum [City of Binghamton], 57 AD2d 27, 29). We reverse.

As we recently stated in Matter of Acting Superintendent of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.) (42 NY2d 509), any challenge to the submission of a dispute to arbitration between an employer and employee in the public sector necessarily involves a two-part inquiry into the question of whether there is a valid agreement to arbitrate a grievance (CPLR 7503, subd [a]). Under the Liverpool approach, it must first be determined that the submitted grievance is one permissible for resolution by arbitration. Manifestly, some matters, such as the decision to grant tenure to probationary teachers, are indefeasibly vested in executive authorities by law and, hence, may not be resolved in the arbitral forum (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774). It is well settled, however, that disputes relating to whether the necessary predicate exists for taking disciplinary action against a public employee and the proper penalty to be imposed if that predicate exists are terms and conditions of employment under the Taylor Law (Civil Service Law, § 204, subd 1), and as such, may be agreed by a public employer and employee to be resolved by arbitration (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122, 131-132).

The second level of the Liverpool inquiry focuses on whether the authority to submit the dispute to arbitration was in fact exercised by the parties to the arbitration agreement (Matter of Acting Superintendent of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.] 42 NY2d 509, 513, supra). The collective bargaining agreement between the parties here expressly provided that resolution of whether there was just cause for the discharge or other discipline of an employee was to be resolved in a four-step grievance procedure, culminating in arbitration. Indeed, the parties here also stipulated orally on the record to submit this very issue of just cause to the arbitrator. Having so agreed, and having so stipulated, neither party may now be heard to complain that the dispute submitted to the arbitrator did not encompass an arbitrable term and condition of employment, for once the issue is properly before the arbitrator, questions of law and fact are merged in the award and are not within the power of the judiciary to resolve (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582-583; Matter of Associ ated Gen. Contrs., N. Y. State Ch. [Savin Bros.], 36 NY2d 957, 958-959). The city’s exclusive remedy in this regard is afforded by statute (CPLR 7503), and if no objection is made to the submission of the dispute, it is deemed to be waived. This restriction may not later be obviated, upon a motion to confirm an award, by blanket allegations that the arbitrator lacked the power to resolve the very issue which was submitted to him by the parties.

Inasmuch as the arbitrator had the power to determine whether the grievant had been discharged for just cause, the only question remaining is whether the arbitrator, in reducing the penalty imposed upon the grievant, did violence to the expressed public policy of the State which would require vacating an award not otherwise reviewable for errors of law and fact. Separate and apart from the otherwise broad power of public employers and employees to agree to resolve disputes arising from terms and conditions of employment by arbitration (see Syracuse Teachers Assn, v Board of Educ., 35 NY2d 743, 744), a small number of areas, interlaced with strong governmental or societal interests, restrict the power of an arbitrator to render an otherwise proper award (Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617). In the public sector, this public policy limitation has arisen with respect to school matters and is derived from the statutory scheme implicit in the Education Law (see, e.g., Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266). The discipline imposed upon a miscreant public employee, however, is not so limited so long as there has been a clear expression of intention to arbitrate the matter.

The public policy of this State, as evidenced by statutory and decisional law, is devoid of any indication that a bribe-receiving public employee must be discharged so as to justify the refusal of a court to give effect to the award of the arbitrator. Thus, section 805-a of the General Municipal Law which prohibits a municipal officer from accepting a gift under circumstances where the inference could be drawn that the gift was intended to influence the performance of his official duties does not inflexibly mandate the discharge of an employee in violation of its proscriptions. There being no statutory bar to imposition of a lesser sanction than outright discharge (cf. Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137, 144), there is nothing in the award which would render it irrational as a matter of law or violative of public policy. Similarly, section 30 of the Public Officers Law, which provides for the vacatur of a public office when its incumbent is convicted of a felony, is inapplicable to the case at bar, there being no conviction supplied necessary for its application.

Having bargained to arbitrate whether there was just cause for the discipline or discharge of a municipal employee, and having submitted that very issue to the arbitrator, the city is bound by the determination of the tribunal to which the dispute was submitted. The fact that a different result might have been reached had the dispute been resolved in the courts is of no moment and does not empower a court to substitute its judgment for that of the arbitrator. The fact that we may disagree with the wisdom and advisability of the arbitration award, gives us no license, as a court of law, to impose what we may feel is a more appropriate remedy. The bargain, having been struck, must now be honored.

Accordingly, the order of the Appellate Division should be reversed and the order of the Supreme Court, confirming the award of the arbitrator, reinstated, without costs.

Wachtler, J.

(dissenting). Responsibility for setting the moral tone in civil service should not be wrested from local government by labor arbitrators. Recognizing this basic principle, the city objected in no uncertain terms when the arbitrator distended the notion of "just cause” by asserting a contractual as well as inherent authority to rule on the severity of a disciplinary penalty imposed by the municipal employer. While it is clear under present standards that the city should have moved to stay grievance proceedings rather than simply object to this usurpation of executive prerogative (see Matter of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578), the ultimate award reducing the disciplinary penalty was nonetheless a nullity.

Overriding public policy considerations demand this conclusion. Municipal authorities may neither bargain away their duty to establish ethical standards for public officers and employees (see General Municipal Law, § 806, subd 1) nor be restricted in their power to enforce those standards by discharging those who participate in criminal acts (see Public Officers Law, § 30; Civil Service Law, § 75; cf. Board of Educ. v Areman, 41 NY2d 527; Matter of Cohoes Cent. School Dist. v Cohoes Teachers Assn., 40 NY2d 774).

The city’s Mayor initially exercised this responsibility when a local public works supervisor, in exchange for immunity from criminal prosecution, testified during a bribery trial that he had taken gratuities from the defendant, a salesman who regularly solicited business from the city. These admissions led to the salesman’s conviction. Although the city employee was immunized against a similar fate, regaining his job would require his union’s resort to a strained construction of the grievance procedures worked out with the city.

The arbitrator of course could not ignore the grievant’s public admissions of criminal complicity. Indeed, the arbitrator acknowledged that a "city official receiving a gratuity from a Vendor is inviting discharge. He is in fact constructively signing a blanket resignation.” But despite these findings, the arbitrator ruled that the penalty imposed by the city was too severe and that temperance compelled the employee’s reinstatement.

This amounted to nothing less than a usurpation of the most fundamental obligation of municipal government: the duty to maintain uncompromised integrity within its ranks. It can hardly be questioned that an elected official deprived of his ability to oust dishonest employees will be hard pressed to fulfill this obligation, let alone deal effectively with comparatively minor infractions or untoward incompetence.

Having acknowledged the discharged employee’s admitted misconduct and violation of public trust, the arbitrator should not, by either logic or law, be permitted to invade a province properly reserved to those who alone must account to the public for the effects of that conduct (see Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; cf. Matter of Associated Gen. Contrs. [Savin Bros.], 36 NY2d 957). The basic tenor and direction of ethical standards governing conduct in municipal government should neither be molded by the pressures of collective bargaining nor left to the discretion of individual arbitrators. Accordingly, the order of the Appellate Division vacating the arbitrator’s award should be affirmed.

Chief Judge Breitel and Judges Jones and Fuchsberg concur with Judge Cooke; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judges Jasen and Gabrielli concur.

Order reversed, etc.

       For example, in the context of this case the city’s contention that the arbitrator exceeded his power by modifying the penalty imposed could only have been raised prior to the commencement of the arbitration proceedings (CPLR 7503, subd [b]). By its active participation in the selection of an arbitrator, the city waived any objection it may have had on the ground that there was no contract to arbitrate the issue of severity of the penalty (see, e.g., Matter of National Cash Register Co. [Wilson], 8 NY2d 377, 383; Matter of Yonkers Public Lib. [Landolfe Elec. Corp.], 27 AD2d 575, 576).


author: Cooke, J.

text:
    The People of the State of New York, Respondent, v Charles A. Buxton, Appellant.
    Argued January 10, 1978;
    decided February 22, 1978

      POINTS OF COUNSEL

      Donald L. Austin, Public Defender (Frank E. Blando of counsel), for appellant.
    Appellant’s statements to the police should have been suppressed because they were obtained after appellant had clearly told the police of his intention to talk to his lawyer and the police made no attempt to honor his request. (Miranda v Arizona, 384 US 436; People v Arthur, 22 NY2d 325; People v Robles, 27 NY2d 155; People v Wooden, 31 NY2d 753; People v Pellicano, 40 AD2d 169; People v

      Hobson, 39 NY2d 479; People v Jackson, 22 NY2d 446; People v Jackson, 41 NY2d 146.)

      Richard D. Enders, District Attorney, for respondent.
    The trial court’s findings of fact support its conclusion that appellant’s statements were voluntary, that he was fully advised of his rights and that he knowingly waived his rights. (People v Jackson, 41 NY2d 146; People v Jackson, 22 NY2d 446.)
   OPINION OF THE COURT

Cooke, J.

The issue presented in this case is whether statements made by defendant are inadmissible because he had requested and was not provided with an attorney prior to questioning. After County Court denied defendant’s motion to suppress, he was convicted, upon a plea of guilty, of attempted rape in the first degree and two counts of sexual abuse in the first degree. The Appellate Division affirmed the judgment of convictions. We reverse.

On January 11, 1973, at about 3 o’clock in the afternoon, police entered upon the grounds of the Masonic Home in Utica, New York, to "pick up” defendant, who worked there and who was a suspect in a rape investigation. After identifying themselves, the policemen asked defendant to accompany them .to police headquarters to talk with them concerning a case in which he was a suspect, but they did not advise him of the specific charges. When defendant refused to enter the police car, the officers attempted to force him into the vehicle. In the course of this struggle, defendant called out words to the effect that someone should call his lawyer.

After getting one handcuff on the defendant, who continued to struggle, the officers agreed to let him speak with his supervisor. There, as testified by an officer, in his presence defendant requested the supervisor to "Call my wife and call my lawyer.” Then, apparently satisfied at having been permitted to have this conversation, defendant did not resist being placed in the police car and was taken away.

Upon arrival at police headquarters, defendant was informed of the nature of the charges against him and was advised of his rights as required by Miranda v Arizona (384 US 436). What occurred thereafter is in dispute, defendant claiming that he continued to request a lawyer and the police testifying otherwise. This factual issue was resolved against defendant by County Court which found that, after being advised of his Miranda rights and prior to being questioned, defendant made no request to call his wife or a lawyer. Nevertheless, despite this determination, the need for our further inquiry is manifested by other findings.

The record reveals that shortly after 3 o’clock on the same day that he was apprehended and immediately upon his arrival at the police station, the police secured a Miranda waiver and began to question defendant. At the same time, complainants were brought to the station to view defendant and between 4 and 5 o’clock of the afternoon of his arrest, after having been told by the police that he had been identified by at least one of the complainants, defendant made both oral and written statements concerning the crimes for which he was charged. Thus, within a period of two hours, a recalcitrant suspect, who accompanied the police without a struggle only after he has been able to request that someone go about obtaining a lawyer for him, is questioned and gives written statements concerning crimes, without the presence of counsel.

The facts present two questions: the first, the effect to be given to defendant’s request, made in the presence of police, that a third party take steps to obtain a lawyer for him; the second, the legal significance of a finding of a waiver of the right to, and in the absence of, an attorney within an hour of an indication by defendant that he desired such right to be honored.

As to the initial issue, the People assert that defendant’s first and only request for an attorney was not made to the police but to his employer, and hence there is lacking from this case a specific and clear request to the interrogating officers that defendant did not wish to speak with them until he had consulted with an attorney. This argument is without merit.

It is established that if a suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning” (Miranda v Arizona, 384 US 436, 444-445, supra). That defendant’s request was made to a third party is of little significance, since the request was made in the presence of police. Under these circumstances, it would be an absurd formality to hold that defendant had not sufficiently indicated his desire for a lawyer. Therefore, we conclude initially that, having been apprised of defendant’s request for counsel, the police violated his constitutional rights by questioning him, in the absence of an attorney, within less than an hour of his request (see People v Jackson, 22 NY2d 446, 452-453; see, also, People v Noble, 9 NY2d 571; cf. Escobedo v Illinois, 378 US 478, 485-486).

There remains the question of the legal effect of the success of the police in obtaining defendant’s subsequent waiver of the right to counsel. In this respect, it is recognized that "[a]ny statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence” (Miranda v Arizona, 384 US 436, 478, supra). Moreover, that a suspect has once asserted his right to remain silent does not, per se, prohibit his later being asked to speak upon reiteration of the requisite warnings, provided that the subsequent statement is not the product of "continued importunity or coercive interrogation in the guise of a request for reconsideration” (People v Gary, 31 NY2d 68, 70). However, as contrasted with a mere assertion of the right to remain silent, "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present” (Miranda v Arizona, 384 US 436, 474, supra; see Michigan v Mosley, 423 US 96, 104, n 10; see, also, concurring opn [White, J.] 423 US, at pp 109-110; United States v Kinsman, 540 F2d 1017).

Once an attorney has been requested, interrogation must cease, but this rule does not render inadmissible all statements made after a request for counsel. The defendant may make a spontaneous admission or simply change his mind and voluntarily make a statement (see United States v Grant, 549 F2d 942, 946, cert den 432 US 908; United States v Hodge, 487 F2d 945). The Miranda decision was designed to prevent further interrogation, and thus a statement is admissible if volunteered — even if an attorney is on the way (see Biddy v Diamond, 516 F2d 118, 123, cert den 425 US 950; see, also, Cobbs v Robinson, 528 F2d 1331, 1342, cert den 424 US 947).

In the matter before us, there was no spontaneous statement or admission. Even before defendant was advised of his rights under Miranda (supra), he requested an attorney. Nevertheless, immediately upon his arrival at the police station, without any attempt to honor his request for counsel, the police obtained a form waiver of his rights and commenced questioning. Indeed, the lapse of time was only the period necessary to transport defendant from his employment to police headquarters (see Michigan v Mosley, 423 US 96, 105-107, supra; People v Chappie, 38 NY2d 112). We have previously held that "once the defendant has asserted his right * * * a subsequent waiver of that right is ineffective where * * * it is obtained only after continued and unbroken harassment” (People v Jackson, 41 NY2d 146, 152; cf. Brewer v Williams, 430 US 387). For the same underlying reason — that a waiver must be voluntary — we now hold that when a suspect makes known his desire for an attorney at the time of his arrest, upon reaching the station house the police may not immediately and actively seek a waiver of this right and then proceed to interrogate him in the absence of counsel.

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted, the plea vacated, and the matter remitted to County Court for further proceedings on the indictment.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, etc.

       The findings of the hearing Judge recite in part:
      “5. Upon being taken into custody, defendant requested Donald Beekman, an Assistant Superintendent at the Masonic Home, to call-defendant’s wife by telephone and ask that she contact an attorney for defendant.
      "6. Defendant resisted being taken into custody until he made his request to Beekman and then he consented to accompany the officers to police headquarters.”


author: Jasen, J.

text:
    Max Mitzner, Respondent, v James J. Jarcho et al., Constituting the Joint Plumbing Industry Board, et al., Appellants.
    Argued January 10, 1978;
    decided February 22, 1978

      POINTS OF COUNSEL

      Abraham Wilson and Walter M. Colleran for appellants.
    I. Respondent’s right under the pension plan is a contractual one and is limited by the provisions of the eligibility rules. (Pasternack v Diamond, 3 AD2d 422, 5 NY2d 770; Menke v Thompson, 140 F2d 786; Gaydosh v Lewis, 410 F2d 262; Giler v Board of Trustees of Sheet Metal Workers Pension Plan of Southern Cal., 509 F2d 848; Roark v Lewis, 401 F2d 425; Lee v Nesbitt, 453 F2d 1309; Connell v United States Steel Corp., 516 F2d 401.) II. The filing of an application for early retirement was not an application for normal retirement. (Moglia v Geoghegan, 403 F2d 110, 394 US 919; American Bridge Co. v State of New York, 245 App Div 535; Cicero Ind. Dev. Corp. v Roberts, 63 Misc 2d 565; Kapplow v Abelard Schuman, Ltd., 21 Misc 2d 306; Yoshida v Liberty Mut. Ins. Co., 240 F2d 824; Upper Columbia Riv. Towing Co. v Maryland Cas. Co., 313 F2d 702; Ryan v Trustees of Ice Cream Ind. Drivers & Ice Cream Employees Unions Pension Fund, 35 AD2d 893, 30 NY2d 643.) III. In a nonvested pension plan the trustees have the right to amend the eligibility rules before the rights of a participant have fully matured. (Matter of Typo-Publishers Outside Tape Fund v New York Times Co., 478 F2d 374; Hauser v Farwell, Ozmun, Kirk & Co., 299 F Supp 387; Elgin, J. & E. Ry. Co. v Burley, 325 US 711, 327 US 661; Sarnow v Moving Picture Mach. Operators’ Union of Greater N. Y, Local 306, 24 NY2d 505; Berger v Iroquois China Co., 41 AD2d 1018.)

      Harold Skovronsky and Steven M. Bernstein for respondent.
    I. The 1966 amendment is arbitrary and capricious as applied to respondent in that: (a) there is no rational relationship between the amendment and the purposes of the pension plan; and (b) the divestiture of respondent’s pension credits is unreasonable and contrary to law. (Blankenship v Boyle, 329 F Supp 1089; Toensing v Brown, 528 F2d 69; Insley v Joyce, 330 F Supp 1228; Lewis v Seanor Coal Co., 256 F Supp 456; Daniel v International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer., 410 F Supp 541, 561 F2d 1223; Moch v Durkin, 31 AD2d 995; Craig v Bemis Co., 517 F2d 677; Collins v United Mine Workers of Amer. Welfare & Retirement Fund of 1950, 298 F Supp 964; Patterson v United Mine Workers of Amer. Welfare & Retirement Fund of 1950, 346 F Supp 11; Giler v Board of Trustees of Sheet Metal Workers Pension Plan of Southern Cal., 509 F2d 848.) II. A valid application for normal pension was in effect when respondent reached age 65.
   OPINION OF THE COURT

Jasen, J.

In 1950 the Association of Contracting Plumbers of the City of New York and Local Union No. 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (union) entered into a collective bargaining agreement. The agreement established the Joint Plumbing Industry Board which was to administer a Pension and Welfare Fund (fund) in accordance with applicable Federal law, the revenues of which were to be derived from employer contributions.

The fund was formally created in 1952 by an agreement and declaration of trust (trust agreement) for the benefit of journeymen plumbers and apprentices. The trust agreement contained the usual provisions with respect to the investment and fiscal management of the assets of the fund and conferred on the trustees "power to make, amend and repeal such rules and regulations, not inconsistent with the terms thereof, as they may deem necessary or proper to carry out the provisions of this Agreement”. Exercising this power, the trustees promulgated "The Plumbing Industry Pension Fund, Rules and Regulations for Pension Plan” (plan) which prescribed the following eligibility requirements for fund benefits: (a) attainment of age 65; (b) 15 years’ union membership, from 1939, five consecutive years of which immediately precede the date of application for retirement; (c) 1,250 days’ employment at the plumbing trade; and (d) employment of any duration with a contributing employer in each of the two years directly preceding the date of application for retirement.

A 1960 amendment to the pension plan provided eligibility for disabled employees after age 50, and in 1963 the plan was further amended to delete union membership as a condition of eligibility. Instead, employment with a contributing employer, regardless of union membership, qualified one for fund benefits.

In 1966 the pension plan was again amended to provide for early retirement at age 60. Additionally, benefit claimants were now required to have accumulated 15 consecutive years of employment and 1,250 working days with a contributing employer immediately preceding the application for benefits. This amendment, adopted by the trustees in the exercise of their power to amend the plan, gave rise to the present litigation.

Respondent Max Mitzner, born July 15, 1904, entered the plumbing trade in 1922 and joined the union at its inception in 1939. He labored in this trade during his entire working life, except that a one-year hiatus occurred in 1961 during which he was employed by Intercity Plumbing and Heating, a corporation in which he owned stock, as an officer.

Based on a physical disability, respondent, at age 62, applied for early retirement pension benefits on November 17, 1966. Informing respondent that he had not satisfied the 1,250 day employment requirement, the board of trustees in a letter dated February 17, 1967, disapproved the application. This rejection prompted respondent to resume employment with contributing employers through 1968 when he had amassed the requisite number of days.

During this period, respondent repeatedly communicated with the board of trustees concerning his eligibility for pension benefits. Finally, on October 15, 1969, the respondent, accompanied by his attorney, attended a meeting of the board at which the application was reviewed and rejected because respondent had not complied with the 15-year requirement of continuous employment, the "break in service” having occurred in 1961 when respondent had been an officer for Intercity Plumbing and Heating Corporation.

The principal issue posed in this case is whether the 1966 amendment, requiring 15 years continuous employment with contributing employers immediately prior to retirement was arbitrarily and capriciously applied by the fund’s trustees to deprive respondent of pension benefits. We hold, under the circumstances here presented, that the trustees did arbitrarily apply the 1966 amendment and, therefore, that respondent’s application for pension benefits should have been approved.

The law governing the administration of pensions is a hybrid born of a marriage of contract and trust principles. Over the years both fields of law have vied for the dominant role. At first, courts fastened on the contractual nature of pensions. Because pensions presumably represented nothing more than agreements between employees or their unions and employers, an overwhelming demonstration of an improper denial of benefits was required before trustees would be judicially compelled to provide pension benefits to rejected applicants. (Menke v Thompson, 140 F2d 786.) Later cases, however, have accorded increasing weight to the fiduciary obligations borne by the trustees for the benefit of the employees. (Lee v Nesbitt, 453 F2d 1309; Norton v I. A. M. Nat. Pension Fund, 553 F2d 1352.) Even where the trustees are vested, by the terms of the trust indenture, with sole authority on matters relating to employees’ rights to receive pension benefits, a denial of benefits will be judicially set aside if the "board’s ruling was motivated by bad faith, or arrived at by fraud or arbitrary action.” (Gitelson v Du Pont, 17 NY2d 46, 49; Smith v Stewart, 45 AD2d 853, affd 38 NY2d 747; Connell v United States Steel Corp., 516 F2d 401.)

This gradual shift in emphasis derives from the burgeoning role served by pension plans in our society and from the growing awareness that potential recipients are all too often deprived of the benefits on which they had relied for security during retirement. Regrettably, "the degree of retirement protection in private pension plans varies widely and in many cases remains quite inadequate.” (President’s Committee on Corporate Pension Funds and Other Private Retirement and Welfare Programs, Public Policy and Private Pension Programs: A Report to the President on Private Employee Retirement Plans, Jan., 1965, p 39.) To avert potential tragedies, the House Committee on Education and Labor expressed support for the view that pension trustees be impressed with the highest standard of fiduciary duty. (1974 US Code Cong and Admin News, p 4659.)

But it is not enough merely to declare that such trustees are charged with the most unremitting fiduciary standards, for the nature of their duty, to preserve the trust fund and to provide benefits for retired employees, is twofold (Lamb v Carey, 498 F2d 789, cert den sub nom. Carey v Davis, 419 US 869) and the demands of the two interests which they must so scrupulously protect may at times pinion them between irreconcilably opposite duties. Thus, although trustees may not arbitrarily and capriciously deny benefits (Roark v Lewis, 401 F2d 425; Pasternack v. Diamond, 3 AD2d 422, affd 5 NY2d 770), their actions must be measured by balancing the duty owed to the retired members — to provide benefits — against the duty owed to the fund — to safeguard it from depletion for the benefit of active members who will apply for benefits in the future. (Roark v Boyle, 439 F2d 497.)

The conflict between these fiduciary obligations is often encountered where entitlement to trust funds is conditioned on a specified period of continuous employment. Such a requirement deprives applicants who experienced a "break-in-service” before qualifying for a pension from receiving pension benefits. Harsh results brought by such rules impelled the House Committee on Education and Labor to condemn break-in-service provisions: "Despite the recognized and acknowledged need for pension plans to provide for vesting of earned benefits * * * [t]he difficulties and hardships resulting from non-existent or inadequate plan provisions for vesting of benefits have been vividly established”. (1974 US Code Cong and Admin News, p 4644.) Recognizing that break-in-service rules may preserve pension funds from financial ruin, we do not hold such rules arbitrary per se. (Pasternack v Diamond, 3 AD2d 422, affd 5 NY2d 770, supra; Burroughs v Board of Trustees, 542 F2d 1128, cert den 429 US 1096; Giler v Board of Trustees, 509 F2d 848; Gaydosh v Lewis, 410 F2d 262.) However, even where reasonable on its face, a break-in-service rule might nevertheless be arbitrarily, and thus improperly, applied. (Connell v United States Steel Corp., 516 F2d 401, supra; Lee v Nesbitt, 453 F2d 1309, supra.) One factor tending to indicate arbitrariness is where a rule is retroactively applied to deny benefits, or where an applicant is not given notice of changes in eligibility requirements. (Burroughs v Board of Trustees, 542 F2d 1128, cert den 429 US 1096, supra; Wilson v Board of Trustees, 564 F2d 1299.)

Turning to the case before us, we conclude that the trustees withheld benefits from respondent arbitrarily. Respondent had worked in the plumbing trade from 1922 until 1968, and he was clearly an intended beneficiary of the trust fund. Because of a break-in-service in 1961, a retroactively applied amendment to the trust agreement stripped him of credit for 21 years of service dating from 1939, the year he joined the newly created union. Moreover, respondent was not informed of the break-in-service rule until 1968, two years after the rule had been promulgated, and two years after he had initially applied for early retirement benefits. Such a showing by respondent satisfied his prima facie burden of proof that his application had been arbitrarily denied (Gitelson v Du Pont, 17 NY2d 46, supra), and the Appellate Division was therefore correct in remanding the case to Supreme Court for a hearing to afford the trustees the opportunity to rebut.

On remand, it was established that prior to the 1966 amendment one could qualify for a full pension, having worked for contributing employers for only a very brief period. The purpose of the 1966 amendment was to prevent such occurrences. Because the express purpose of the 1966 amendment was to preserve the fund from invasion by claimants manifestly undeserving of its benefits, and because the amendment advanced this purpose, it is reasonable on its face. (Sarnow v Moving Picture Mach. Operators’ Union, 24 NY2d 505.)

However, on the record now before us, we can only conclude that, in retroactively applying this rule to this respondent, who had worked for contributing employers for many years, the trustees acted unreasonably. It must be noted in this regard that no showing was made that sound actuarial practice required that this claimant be denied benefits, nor was there evidence that the amendment was adopted to avert pending financial distress. Where an otherwise valid rule, which serves to safeguard a pension fund from depletion, is used as a scythe to raze claims which stand well beyond the compass of the rule’s avowed purpose, the law must halt the blade’s reckless sweep.

Appellants raise the additional contention that respondent is not entitled to the retirement benefits sought because no formal application was ever filed for such benefits, the only application ever made by respondent having been for early retirement benefits. Not only do we find no merit in this argument, but we note how uncommendable these fiduciaries act in contriving to shirk their responsibilities by advancing so vapid a contention. The application originally filed by respondent for early retirement benefits is titled "APPLICATION FOR PENSION”. After respondent reached 65, the age of regular retirement, this application was reconsidered and rejected. Respondent was never advised that a separate application was required for regular retirement benefits, nor does any rule of the pension plan so state. Under such circumstances, a manifest injustice would result if this application were not now deemed one for regular retirement benefits.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

      . (Taft-Hartley Act, US Code, tit 29, § 186, subd [c], par [5].)

      . To the extent that these were amendments to the plan itself, there is a factual difference from those cases in which trustees have unilaterally exercised an administrative authority conferred on them in the plan to make rules and determinations to carry out the provisions of the particular plan.

      . According to House Report No. 93-533, in 1940 approximately 4 million workers were covered by private pension plans. By 1960 this number had soared to over 21 million, and by 1976 to over 30 million, nearly half the nonfarm labor force.

      . Congress, aware of the inequities that have deprived workers of pension benefits, enacted the Employee Retirement Income Security Act (ERISA) (US Code, tit 29, § 1001 et seq.) in 1974, which acknowledges the conflicting fiduciary obligations imposed on pension trustees. (ERISA was not given retroactive application [US Code, tit 29, § 1061, subd (a)].)
      "[A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—
      "(A) for the exclusive purpose of:
      "(i) providing benefits to participants and their beneficiaries; and "(ii) defraying reasonable expenses of administering the plan:
      "(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims”. (US Code, tit 29, § 1104.)

      . Congress has established strict minimum vesting standards which preclude the harsh results wrought by break-in-service rules. (US Code, tit 29, § 1053.).


author: Chief Judge Breitel.

text:
    Bay Ridge Air Rights, Inc., Respondent, v State of New York, Appellant.
    (Claim No. 59365.)
    Argued February 16, 1978;
    decided March 23, 1978

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Douglas L. Manley and Ruth Kessler Toch of counsel), for appellant.
    I. Contribution based on Dole apportionment is sufficiently different from traditional pre-Dole indemnity to justify a departure from the rule governing accrual of such a traditional pre-DoZe cause of action for indemnity. (Gates-Chili Cent. School Dist. v State of New York, 55 AD2d 44; McFall v Compagnie Maritime Beige [Lloyd Royal] S. A., 304 NY 314; Rock v Reed-Prentice, Div. of Package Mach. Co., 39 NY2d 34; Rogers v Dorchester Assoc., 32 NY2d 553; Bush Term. Bldgs. Co. v Luckenbach S. S. Co., 9 NY2d 426; Dole v Dow Chem. Co., 30 NY2d 143.) II. Delaying the accrual and assertion of claims for Dole apportionment against the State until final adjudication and satisfaction of liability in the primary actions against the Dole claimants, often years after such actions were commenced and even longer after the accidents or other torts from which they arose, would deprive the State of any notice for so long as to completely vitiate and destroy the salutary policy of the jurisdictional time limitations, and could even invite fraudulent or collusive litigation. (Chergotis v State of New York, 259 App Div 369; Andriola v State of New York, 53 AD2d 966; Barry v Niagara Frontier Tr. System, 35 NY2d 629.) III. Determination of time of accrual and choice of statutory time limit, particularly in these circumstances, are most appropriately a judicial, rather than a legislative function. (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Flanagan v Mt. Eden Gen. Hosp., 24 NY2d 427; Schmidt v Merchants Despatch Transp. Co., 270 NY 287; Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340; Sears, Roebuck & Co. v Enco Assoc., 54 AD2d 13; Western Elec. Co. v Brenner, 41 NY2d 291; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669; Satta v City of New York, 272 App Div 782; Basso v Miller, 40 NY2d 233.) IV. Since it is now well established that as soon as an alleged tort-feasor is sued and thus exposed to liability, he may assert any claims against others for contribution by impleading them in third-party actions, there is no longer any sound objection to an independent action against the State for contribution, its adjudication similarly to await adjudication of the primary action. Indeed the most just, practical and appropriate time for accrual of a claim for Dole contribution is as soon as the Dole claimant himself is sued, when he is represented by counsel and thereafter has all of the time limited for asserting his claim for contribution. (Flanagan v Mt. Eden Gen. Hosp., 24 NY2d 427; Leibowitz v State of New York, 82 Misc 2d 424; O’Sullivan v State of New York, 83 Misc 2d 426; Berlin & Jones v State of New York, 85 Misc 2d 970; Dole v Dow Chem. Co., 30 NY2d 143; Liebman v County of Westchester, 41 AD2d 756; Blum v Good Humor Corp., 57 AD2d 911; Keyes v Mc Laughlin, 49 AD2d 974; Milstein v City of Troy, 272 App Div 625; McCabe v Queensboro Farm Prods., 22 NY2d 204.)

      William F. McNulty, Harold M. Foster and Anthony J. McNulty for respondent.
    The court below properly modified the order of the Court of Claims, "on the law and the facts”, so as to provide for the dismissal of the claim herein "without prejudice to the filing of a new claim for contribution and/or indemnification when and if such claim should accrue”. (O’Sullivan v State of New York, 83 Misc 2d 426; Rogers v Dorchester Assoc., 32 NY2d 553; Dole v Dow Chem. Co., 30 NY2d 143; Klinger v Dudley, 41 NY2d 362; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340; Barry v Niagara Frontier Tr. System, 35 NY2d 629; Flanagan v Mt. Eden Gen. Hosp., 26 NY2d 427; Schmidt v Merchants Despatch Transp. Co., 270 NY 287.)
   OPINION OF THE COURT

Chief Judge Breitel.

Claimant building owner, defendant in a wrongful death action arising out of the killing of a tenant by the building custodian, brings an independent action against the State, in whose hospitals the custodian had received psychiatric care, for indemnification and apportionment of damages if they should eventuate. The Court of Claims dismissed the claim for untimeliness (see Court of Claims Act, § 10). A unanimous Appellate Division, holding that the claim was premature, modified the dismissal to be without prejudice to the filing of a new notice of claim, should the claim accrue. The State appeals.

At issue is the accrual date of a claim for apportionment of damages under Dole v Dow Chem. Co. (30 NY2d 143) and CPLR article 14. Put more precisely, the issue is whether a claim for apportionment of damages accrues on the date of the injury for which the party seeking contribution may be held liable, the date action is brought against that party, or the date judgment or settlement is recovered.

The order of the Appellate Division should be affirmed. Like a claim for indemnification, a claim for apportionment of damages does not generally accrue until payment is made by the party seeking apportionment. Hence, under the general rule, until claimant has made payment to the estate of the tenant, it need not serve notice of claim upon the State, nor, on that theory, has the Statute of Limitations on its claim started to run. Relief from possible prejudice caused the State by a delayed accrual date because of the contingency of the claim is for the Legislature, not the court.

On July 2, 1972, a custodian employed by claimant building owner Bay Ridge Air Rights killed a tenant. The victim’s estate, having learned that the custodian had been under the psychiatric care of State hospitals, sued Bay Ridge in Federal court for negligently hiring the custodian. That action was begun on April 1, 1974.

In a December, 1974 letter to the Attorney-General, Bay Ridge advised that it would seek an apportionment of damages from the State "in the event of a recovery” in the Federal action. A third-party impleader complaint against the State for prematurely releasing the custodian was, however, on motion of the Attorney-General, dismissed by the Federal court, for lack of jurisdiction.

On June 3, 1975, within two months of the dismissal, but some three years after the killing, notice of intention to file a claim, as well as a proposed claim, were served on the State. For obvious reasons, no dollar amount could be specified. Instead, a general demand for indemnity and apportionment of damages for "any judgment that may be sustained” in the pending Federal action was included.

Relying on section 10 of the Court of Claims Act, which provides various time periods within which a claim or notice of intention to file a claim must be filed, the State, in response to a motion by Bay Ridge for an examination before trial, moved to dismiss for untimeliness. The Court of Claims held that the cause of action for apportionment accrued on the date of the killing, and granted the State’s motion to dismiss. The Appellate Division, on the other hand, held that the claim over accrues when there is recovery against the party seeking apportionment, and thus modified the dismissal to add that it be without prejudice to filing a new claim if such claim should accrue.

CPLR 1007 permits a defendant to implead a third party "who is or may be liable to him for all or part of the plaintiff’s claim against him”. Hence, a party seeking indemnification or contribution ordinarily need not await the ripening of his claim to protect his right to proceed against a third party (see, generally, Matter of Valstrey Serv. Corp. v Board of Elections, 2 NY2d 413, 416; Occhialino, Contribution, Nineteenth Ann Report of NY Judicial Conference, 1974, p 230). Where, however, indemnification or contribution is sought from the State, the claim may only be brought in the Court of Claims, and the various notice requirements of section 10 of the Court of Claims Act must be met (see McCorkle v Degl, 74 Misc 2d 611). In this situation, as well as in like instances where an independent action for indemnity or contribution is necessary, identifying the date of accrual assumes significance.

Subdivisions 3 and 4 of section 10 of the Court of Claims Act provide:

"3. A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor, in which event the claim shall be filed within two years after the accrual of such claim.
* * *
"4. A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed within six months after the accrual of such claim, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after such accrual.”

It is generally said that a cause of action for indemnity accrues on the date payment is made by the party seeking indemnity (see, e.g., Musco v Conte, 22 AD2d 121, 125-126 [Hopkins, J.]; 28 NY Jur, Indemnity, § 20; When Statute of Limitations Commences to Run for Contribution or Indemnity, Ann., 57 ALR3d 867, 883-884). In contrast, the date on which a claim for contribution accrues has been debated (see 2A Weinstein-Korn- Miller, NY Civ Prac, par 1403.05, p 38 [1977 Supp]; 50 St John’s L Rev 801).

There is not enough to support the view, taken by the Court of Claims below, that a claim for contribution accrues at the time of the underlying injury, in this case the date the tenant was killed. Under a date-of-injury rule, a defendant might lose his claim against the State altogether. For unless he is sued before the applicable 90-day or 6-month time period, he may be unaware of any right he has against the State. Even the Attorney-General does not press for so harsh a rule. Moreover, it does not fit the traditional conceptual analysis of accruals of causes of action if it be true that there is no right to recovery until the claimant has suffered a judgment against him or has paid it.

The State, instead, urges that onset of the main action should trigger the statutory time limitations. Postponement of accrual, it is cogently argued, often forces the State to investigate and defend claims many years after the occurrence. When the main action is brought the potential claimant knows that he is exposed to liability and is likely to be represented by counsel (see Occhialino, Contribution, Nineteenth Ann Report of NY Judicial Conference, 1974, pp 231-232).

The excellent extensive analysis presented in the State’s brief is appealing, and the evil attendant upon a delayed accrual date substantial. Yet, as observed by Mr. Justice Larkin at the Appellate Division, there is nothing in either Dole v Dow Chem. Co. (30 NY2d 143, supra) or CPLR article 14 on contribution that justifies in this respect distinguishing claims for apportionment from those for indemnity. (Accord Berlin & Jones v State of New York, 85 Misc 2d 970, 973-977; cf. Hard v Mingle, 206 NY 179, 184; United States Lines v United States, 470 F2d 487, 489.) To be sure, in circumstances arising from intentional or inadvertent legislative gaps courts have expanded time strictures on an injured party’s right to recover (see, e.g., Becker v Huss Co., 43 NY2d 527, 541-542). It is not the role of the court, however, without benefit of legislative authority, to cut off abruptly a cause of action good until then under conventional law.

In this particular case, the State is not hopelessly disadvantaged by the delayed accrual. Claimant’s December, 1974 letter to the Attorney-General and the attempt, albeit unsuccessful, to serve an impleader complaint in the Federal action put the State on notice of its potential liability. In other instances, however, the State might have to wait years after the occurrence to learn that it should have investigated a claim. But the remedy, again, is not with the courts. It is the Legislature, and the matter is urgent, that could best explore the possible alternatives, such as establishing an earlier accrual date, at least for notice of claim purposes, or perhaps, much better yet, allowing the State to be impleaded as a third party in the main action when the action is brought in the State courts. With CPLR 1007 available to implead the State, all claims could be tried in a single action, and potential claimants thereby encouraged to involve the State in anticipation of its liability. More important, the State would not be forced to defend claims which, if not as a technical matter, are, as a practical matter, stale.

Under conventional principles, therefore, no judgment in the Federal action against Bay Ridge having been entered, let alone paid, its claim for indemnity and contribution has not yet accrued (Klinger v Dudley, 41 NY2d 362, 369). Hence, whether the 6-month general period of limitation or the 90-day tort period applies need not be reached.

A determination that the claim has not yet accrued, however, would not necessarily end the matter. Another question is whether the Appellate Division correctly dismissed the claim as premature. A so-called "premature” action, better described as anticipatory, in which the plaintiff is not yet certain of his damages has, on occasion, been permitted (see Grant Co. v Uneeda Doll Co., 19 AD2d 361, 363-364, affd 15 NY2d 571). So, too, filings in the Court of Claims in advance of technical accrual have been held effective to preserve a party’s rights against the State (Atlantic Mut. Ins. Co. v State of New York, 50 AD2d 356, 358, affd 41 NY2d 884; Matter of Johnson v State of New York, 49 AD2d 136, 137-138). Because Bay Ridge does not appeal from the dismissal, however, that question also need not be reached.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.