author: Jones, J. Chief Judge Cooke

text:
    In the Matter of the Claim of Elizabeth La Mountain et al., Appellants. Westport Central School District, Respondent. Philip Ross, as Industrial Commissioner, Respondent. In the Matter of the Claim of Tina Williams, Appellant. Ithaca City School District, Respondent. Philip Ross, as Industrial Commissioner, Respondent. In the Matter of the Claim of Claire W. Hess, Appellant. Baldwinsville Central School District, Respondent. Philip Ross, as Industrial Commissioner, Respondent.
    Argued October 8, 1980;
    decided November 20, 1980

      POINTS OF COUNSEL

      J. Michael Eadry and Bernard F. Ashe for Elizabeth La Mountain and others, appellants.
    I. Individual contracts are not applicable to members of a collective bargaining unit. II. The unilateral notices do not constitute enforceable contracts. (Rubin v Dairymen’s League Co-op. Assn., 284 NY 32, 816; Baum v Beacon Feeds, Beacon Div. of Textron, 31 AD2d 734; Petterson v Pattberg, 248 NY 86; Kovacs v Countess Mara, 275 App Div 970, 301 NY 805; Cowan v De Witt, 205 Misc 130, 284 App Div 998; Ivor B. Clark, Inc. v Boston Rd. Shopping Center, 24 Misc 2d 84; Valentino v State of New York, 48 AD2d 15.) III. The "Triborough Doctrine” has been misapplied. (Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753; Matter of Board of Educ. [Malone Cent. Teachers Assn.], 53 AD2d 417; Matter of Board of Educ. [Poughkeepsie Public School Teachers Assn.], 75 Misc 2d 931, 44 AD2d 598; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614.) IV. The court below improperly engaged in judicial legislation. (Board of Educ. v Licata, 42 NY2d 815; Matter of Jerry v Board of Educ., 35 NY2d 534; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 30 AD2d 447, 23 NY2d 483; Perkins v Merchants Mut. Ins. Co., 82 Misc 2d 157, 50 AD2d 1070, 41 NY2d 394.)

      Janet Axelrod and Paul E. Klein for Tina Williams, appellant.
    I. Unionized noninstructional school district employees may be denied unemployment benefits at the close of the school year under subdivision 11 of section 590 of the Labor Law only if a collective bargaining agreement exists, guaranteeing continued employment for the following school year.
      (Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196; Davis v State of New York, 54 AD2d 126; People v Mobil Oil Corp., 48 NY2d 192; Matter of Albano v Kirby, 36 NY2d 526.) II. An expired collective bargaining agreement cannot satisfy the requirement of subdivision 11 of section 590 of the Labor Law for a "written contract” guaranteeing employment. (Board of Educ. [Yonkers Federation of Teachers], 40 NY2d 268; Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753; Matter of Board of Educ. [Poughkeepsie Public School Teachers Assn.], 44 AD2d 598; Matter of Corbin v County of Suffolk, 54 AD2d 698; Matter of Board of Educ. [Malone Cent. Teachers Assn.], 53 AD2d 417.) III. The notice of continuing employment sent to claimant by the employer is not an enforceable "written contract” under subdivision 11 of section 590 of the Labor Law. (Rubin v Dairymen’s League Co-op. Assn., 284 NY 32; Valentino v State of New York, 48 AD2d 15; Baum v Beacon Feeds, Beacon Div. of Textron, 31 AD2d 734; Austin Instrument v Loral Corp., 29 NY2d 124.)

      James Featherstonhaugh and Williams F. Reynolds for Claire W. Hess, appellant.
    I. Appellant, being a member of a collective bargaining unit, does not have a written contract which continues her services. (Local 456 Int. Brotherhood of Teamsters v Town of Cortlandt, 68 Misc 2d 645; People v Women’s Christian Assn. of Jamestown, 56 AD2d 101; Matter of Schrider v National Distillers & Chem. Corp., 51 AD2d 1068; People v Meikrantz, 77 Misc 2d 892; Gaden v Gaden, 29 NY2d 80.) II. The court below misconstrued the subject statute, and, in so doing, rewrote the language of the same. (Matter of Howard v Wyman, 28 NY2d 434; Matter of Klein [Levine], 42 AD2d 640; People v Shafer, 30 AD2d 213; Perkins v Merchants Mut. Ins. Co., 82 Misc 2d 157, 50 AD2d 1070, 41 NY2d 394; People v Women’s Christian Assn. of Jamestown, 56 AD2d 101; Matter of Schrider v National Distillers & Chem. Corp., 51 AD2d 1068; Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196; Matter of Malpica-Orsini, 36 NY2d 568; Davis v State of New York, 54 AD2d 126; Board of Educ. v Licata, 42 NY2d 815.) III. The legislative history of the statute shows that a collective bargaining agreement guarantee of continued employment is necessary to deny benefits. (Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196.) IV. The notice sent to claimant does not constitute an enforceable "individual contract”. (Valentino v State of New York, 48 AD2d 15; Baum v Beacon Feeds, Beacon Div. of Textron, 31 AD2d 734; Scott v Motor Lodge Props., 35 Misc 2d 869.)

      Robert Abrams, Attorney-General (Frederick M. Paola, Shirley Adelson Siegel and Paul S. Shemin of counsel), for Philip Ross, respondent in each of the proceedings.
    Appellants’ weeks of employment and remuneration as nonprofessional employees of an educational institution were properly excluded pursuant to subdivision 11 of section 590 inasmuch as appellants, as members of a collective bargaining unit, had written enforceable contracts continuing their services for both of two successive academic years. (Matter of Malpica-Orsini, 36 NY2d 568; Matter of Klipp v New York State Civ. Serv. Comm., 42 Misc 2d 35, 22 AD2d 854, 15 NY2d 880; Travelers Ins. Co. v Padula Co., 224 NY 397; Johanns v Ficke, 224 NY 513; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639; Matter of Fisher [Levine], 36 NY2d 146.)

      Harry T. Shaw for Westport Central School District, respondent.
    I. The appeal board properly construed the Triborough Doctrine requirement that the status quo of a bargaining agreement be preserved during negotiations for continuance of the agreement, as being the equal of a written contract which continues the services of appellants during the time in issue. (Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY 2d 753; Matter of Board of Educ. [Connetquot Teachers Assn.], 74 Misc 2d 336; Professional Staff Congress/Cuny v Board of Higher Educ., 83 Misc 2d 900; Matter of Betts [Hoosic Val. Teachers’ Assn.], 86 Misc 2d 964.) II. The letters exchanged by the Westport Central School District and each of appellants, concerning continuation of employment for the following school term, constituted bilateral contracts between the parties. (Valashinas v Koniuto, 283 App Div 13; Matter of Lord, 175 Misc 921; Antonucci v Stevens Dodge, 73 Misc 2d 173.) III. According to the most reasonable construction of subdivision 11 of section 590, any claimant is ineligible for benefits if he has a written contract which continues his services for the succeeding academic year. (Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Williams v Williams, 23 NY2d 592; Matter of Fenton v Randolph, 92 Misc 2d 514; Matter of Aquilina v New York Tel. Co., 62 AD2d 1096; Matter of Sellers [J. W. Mays, Inc.—Catherwood], 13 AD2d 204; Deverho Constr. Co. v State of New York, 94 Misc 2d 1053; Matter of Sabot v Lavine, 42 NY2d 1068; Town of Cairo v Cairo Fair Grounds, 46 AD2d 566.) IV. The reasonable expectation of employment for the succeeding term, which appellants had by the virtue of the letters from the district and the Triborough Doctrine, should be deemed to satisfy the requirements of a "contract” under subdivision 11 of section 590. (Chicago Teachers Union, Local No. 1 AFT/AFL/CIO v Johnson, 421 F Supp 1261.)

      Thomas J. Grooms and Joseph R. Cook for Ithaca City School District, respondent.
    I. The decision of the Unemployment Insurance Appeal Board may be sustained, as a rational interpretation of the statute, on a number of different grounds. II. The legislative histories and judicial precedent from multiple jurisdictions confirm that, for unemployment insurance purposes, "contract” is to be equated with "reasonable assurance”. (Matter of Klein [Levine], 42 AD2d 640; Matter of Sherwin [Levine], 48 AD2d 733; Matter of Nierenberg [Levine], 48 AD2d 729; Matter of Di Cerbo [Levine], 45 AD2d 933; Matter of McCarroll [Ross], 64 AD2d 992; Chicago Teachers Union, Local No. 1 AFT/AFL/CIO v Johnson, 421 F Supp 1261.) III. The public policy behind the statute and the interpretation of the agency responsible for administering the statute support the decision below. IV. The decision of the Unemployment Insurance Appeal Board is based on a rational interpretation of the statute and must therefore be affirmed by a reviewing court. (Matter of Fisher [Levine], 36 NY2d 146; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Howard v Wyman, 28 NY2d 434; Matter of Marsh [Catherwood7, 13 NY2d 235; Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398.) V. Alternatively, there existed a written bilateral contract between the district and appellant continuing her services as a school bus driver for the 1978-1979 academic year. VI. Appellant’s argument that a written collectively bargained agreement between the union and the employer guaranteeing employment is necessary to satisfy subdivision 11 of section 590 of the Labor Law is totally without merit. (Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753; Matter of Burke v Bowen, 40 NY2d 264.)

      Edward J. Moses for Baldwinsville Central School District, respondent.
    I. In enacting subdivision 11 of section 590, the Legislature intended the uniform and nondiscriminatory treatment of nonprofessional educational employees. (Davis v Supreme Lodge, Knights of Honor, 165 NY 159; American Airlines v State Comm. for Human Rights, 29 AD2d 178; People v McNair, 78 Misc 2d 341; People v Dethloff, 283 NY 309; Matter of Burke v Bowen, 40 NY2d 264; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; People v Ryan, 274 NY 149.) II. The requirement of a "contract” continuing services is satisfied by the written notice served upon claimant herein. (Matter of McCarroll [Ross], 64 AD2d 992; Matter of Klein [Levine], 42 AD2d 640; Matter of Di Cerbo [Levine], 45 AD2d 933; Feder v Caliguira, 8 NY2d 400; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Howard v Wyman, 28 NY2d 434.) III. The Hess notice estopped the district from terminating appellants employment or abolishing her position in the fall. (City of New York v State of New York, 40 NY2d 659; Werking v Amity Estates, 2 NY2d 43; Horne v Radiological Health Servs., 83 Misc 2d 446; Gratton v Dido Realty Co., 89 Misc 2d 401.) IV. Even assuming, arguendo, that this court holds the "individual contract” provision in subdivision 11 of section 590 inapplicable to appellant, the district’s notice satisfied the "written contract” provision thereof. (J. I. Case Co. v Labor Bd., 321 US 332.)

      Beverly Gross and Carlin Meyer for District Council 37, AFSCME, amicus curiae in the first above-entitled proceeding.
    The decision of the court below is incorrect and should be reversed.

      Harvey Mandelkern for New York State School Board Association, Inc., amicus curiae in the first above-entitled proceeding.
    I. The court below, having correctly limited its scope of review of the Unemployment Insurance Appeal Board’s construction of the statute to irrationality or unreasonableness, correctly affirmed the appeal board. (Matter of Howard v Wyman, 28 NY2d 434; Matter of Marsh [Catherwood], 13 NY2d 235; Matter of Deitchman [Catherwood], 34 AD2d 718; Matter of Peak [North Colonie Cent. School Dist.—Ross], 72 AD2d 854; Matter of Incorporated Vil. of Lynbrook v New York State Public Employment Relations Bd., 48 NY2d 398; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.) II. The New York State law must be read in pari materia with the Federal law, since the purpose of the New York law is to conform to the Federal statute. (Matter of Theurer [Trustees of Columbia Univ. in City of N. Y.—Ross], 59 AD2d 196; County of Los Angeles, Cal. v Marshall, 442 F Supp 1186.) III. Where a word (in this case "contract”) has received a judicial construction, it will almost invariably be given the same meaning where it is again used by the Legislature in connection with the same subject. (Matter of Klein [Levine], 42 AD2d 640; Matter of Sherwin [Levine], 48 AD2d 733; Matter of Nierenberg [Levine], 48 AD2d 729; ABKCO Inds. v Apple Films, 39 NY2d 670; Matter of McCarroll [Ross], 64 AD2d 992; Matter of Di Cerbo [Levine], 45 AD2d 933.) IV. Subdivision 11 of section 590 of the Labor Law does not mandate that the written contract (which is required for members of collective bargaining units) be a job security clause solely with the collective bargaining unit to the exclusion of individual contracts with members of such unit. (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Yonkers Federation of Teachers v Board of Educ., 44 NY2d 752; Retail Clerks v Lion Dry Goods, 369 US 17; Santos v District Council of N. Y. City & Vicinity of United Brotherhood of Carpenters & Joiners of Amer., AFL-CIO, 547 F2d 197; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Engle v Talarico, 33 NY2d 237.)
   OPINION OF THE COURT

Jones, J.

A determination by the Unemployment Insurance Appeal Board that a nonprofessional employee of a school district is ineligible for unemployment benefits in weeks between academic years will not be disturbed when the employee, who is a member of a collective bargaining unit, has received a written notice that his or her employment will be continued during the following year, although no provision assuring such employment following the summer recess is included in the collective bargaining agreement previously entered into by the school district.

Each of the claimants in these three cases was employed in a nonprofessional capacity by a public school district during the 1977-1978 academic year — La Mountain, White and Brant as cafeteria workers and Bunning as a nurse by the Westport Central School District, Williams as a bus driver by the Ithaca City School District, and Hess as a cafeteria worker by the Baldwinsville Central School District. Collective bargaining agreements that had been in effect with respect to the West-port and Ithaca school districts expired on June 30, 1978 and, although contract negotiations were then under way, no successor agreements had been signed when the named employees of those districts sought unemployment benefits. A collective bargaining agreement to which the Baldwinsville district was a party covered the period from July 1, 1977 through June 30, 1979, but neither that agreement nor the expired agreements with the other two districts contained any provision assuring claimants that they would be employed for the school year commencing in September, 1978. However, on June 20, 1978 or June 23, 1978 each claimant was sent a letter or notice by her school district informing her that she would be continued in her position during the school year or term that would begin the following September and requesting that she indicate her intention to resume her duties by signing and returning a copy of the letter or notice from the school district. Each of the claimants, with the exception of Hess, communicated her written acceptance of the continuation.

Shortly after the 1977-1978 school year had ended, and after the above notices had been received, each of the several employees filed a claim for unemployment benefits for the summer recess period between the 1977-1978 and the 1978-1979 school years; the claims were rejected and benefits denied by respondent appeal board however, on the ground that each claimant came within the proviso clause of subdivision 11 of section 590 of the Labor Law. That subdivision, in pertinent part, provides: "Benefits based on non-professional employment with certain educational institutions. If a claimant was employed in other than an instructional, research or principal administrative capacity by an educational institution which is not an institution of higher education, the following shall apply to any week commencing during the period between two successive academic years or terms provided the claimant as a member of a collective bargaining unit has a written contract which continues his services in such capacity for any such institution or institutions for both of such academic years or terms or an individual contract to perform services for such period if he is not a member of a bargaining unit” (emphasis added).

With respect to the claims filed by employees of the West-port and Ithaca school districts, the appeal board found that the collective bargaining agreements with those districts which expired on June 30, 1978 (the provisions of which it considered as continuing in effect during negotiation of successor agreements), taken with the notices of employment for the school year or term beginning in September, 1978 distributed to the claimants in June, 1978, constituted written contracts within subdivision 11 of section 590 of the Labor Law. With respect to claimant Hess of the Baldwinsville school district, the board found that she was covered by the collective bargaining agreement between the district and the union representing its employees effective from July 1, 1977 through June 30, 1979 and had been notified that her services were to be continued for the school year 1978-1979, so that she was similarly rendered ineligible for benefits by the statute.

The Appellate Division, at which the appeals in these cases were argued together, affirmed the decisions by the Unemployment Insurance Appeal Board, concluding that claimants were ineligible for benefits for the period between the 1977-1978 and 1978-1979 school years by reason of subdivision 11 of section 590 of the Labor Law. We reach the same result but for a reason different from that of the court below.

With respect to ineligibility of nonprofessional employees of educational institutions for benefits under the Unemployment Insurance Law (Labor Law, art 18) during periods between successive academic years or terms of their employer institutions, the Appellate Division distinguished (correctly in our view) two groups of employees — those who are members of a collective bargaining unit and those who are not. A member of a collective bargaining unit is ineligible for benefits if he or she has a written contract which "continues his services * * * for both of such academic years or terms”. An employee who is not a member of a bargaining unit is ineligible if he or she has "an individual contract to perform services for such period”. The court below concluded that, because either no collective bargaining agreement assuring employment of the claimants during the school year beginning in September, 1978 was in effect or because (in the case of claimant Hess) the agreement which was in effect failed to assure Hess’ employment during that school year, claimants did not fall within the first group excluded from benefits by subdivision 11 of section 590, and that ineligibility, if it existed, must be based on the existence of "personal contracts” of employment —the critical factor in the case of employees who were not members of a bargaining unit. (The court took this position notwithstanding that it was satisfied that claimants had not ceased to be members of a bargaining unit on the expiration of the collective bargaining agreements of their units.) It then found that the notices of employment for the 1978-1979 year or term sent to each of the claimants constituted such "personal contracts”, and the determination of ineligibility followed.

We agree that claimants are not entitled to unemployment benefits for the 1978 school summer recess period but predicate this conclusion on the appeal board’s finding that claimants had written contracts within the meaning of subdivision 11 of section 590, which were sufficient to disqualify them, as members of a bargaining unit, from benefits between the school years in question. At the core of the controversy between the parties is the question whether, to disqualify a claimant who is a member of a collective bargaining unit, his or her written contract for continued employment must be contained and expressed in an applicable collective bargaining agreement. Claimants strenuously urge that the statute requires such incorporation and that no written contract outside a collective bargaining agreement will suffice; the Industrial Commissioner does not read the statute to lay down any such exclusive mandate. If that issue be resolved in favor of the commissioner and it is determined that a written contract outside the collective bargaining agreement may satisfy the statute, there remains the subsidiary question whether these claimants are disqualified in consequence of any such written contracts.

The contention that the written contract with the individual employee must be embodied in a collective bargaining agreement overlooks the fact that nowhere in subdivision 11 of section 590 is there any reference to a collective bargaining agreement; what the statute requires for ineligibility in the case of a member of a collective bargaining unit is a "written contract” and, in the case of a nonmember, an "individual contract”. The objective of the statute is apparent on its face —to render ineligible for school summer recess unemployment benefits nonprofessional school employees of one year who have been assured that their employment will continue when the next academic year resumes in the fall. In the case of an-employee who is a member of a collective bargaining unit the necessary evidence of the required assurance is a "written contract” — something on which the individual employee can rely. Nothing in the language of the statute or in the circumstances existing at the time of its enactment suggests the restriction for which claimants argue — namely, that the employee is to be deprived of benefits only if the written assurance of continuing employment is incorporated in a collective bargaining agreement. Indeed, quite the contrary may be concluded from counsel’s concession on oral argument that it was not the prevailing practice of educational institutions in labor relations at the time subdivision 11 of section 590 was adopted to include individual contracts of hire in collective bargaining agreements. As the Supreme Court of the United States has observed: "Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone.” (J. I. Case Co. v Labor Bd., 321 US 332, 334-335.) That being so, to regard the statute as applicable only to those instances in which the hiring contracts of the employees were included in a collective bargaining agreement would serve in practical consequence to emasculate the legislation and to ascribe to the Legislature an intent to adopt an ineffectual statute.

Claimants place unwarranted emphasis in their argument on the inclusion of the phrase "as a member of a collective bargaining unit” in subdivision 11 when they assert that the only way in which a claimant as a member of a collective bargaining unit may have a written contract which continues his services is that the contract continuing his services be included in a collective bargaining agreement. The phrase serves only to define the group to which the requirement of a written contract applies; it contrasts with the description of an employee falling within the second group (viz., an employee who "is not a member of a bargaining unit”), nothing more.

The question that remains in determining whether claimants, as members of a bargaining unit, were ineligible for benefits is whether the appeal board’s finding that they had written contracts continuing their services for the school year or term commencing in September, 1978 was irrational or unreasonable. If it was neither, it must be upheld (Matter of Howard v Wyman, 28 NY2d 434, 438), for the question, involving policy considerations relating to the intended scope of the statute, "is one to the determination of which the Appeal Board may bring to bear its own special competence in carrying out the supervisory authority conferred on it by the Legislature” (Matter of Fisher [Levine], 36 NY2d 146, 150).

We find no irrationality or unreasonableness in the board’s conclusion, which was based — as well it might be — on two items. First, there were the June, 1978 notices that their employments would be continued when school resumed, containing definite dates of the terms of employment, which were sent to claimants and, but for claimant Hess who will be mentioned subsequently, by them agreed to in a writing returned to the employer. Coupled with these notices, which extended individual employment offers to the recipients, was the fact of the continuation, under what has become known as the Triborough Doctrine (see Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753), of the terms and conditions of employment incorporated in the collective bargaining agreements that had expired on June 30, 1978. In light of those two factors assuring claimants of an opportunity of employment in the coming fall and defining the terms of the employment, it was not irrational for the appeal board to conclude that claimants had written contracts disqualifying them from summer recess unemployment benefits under the provision of subdivision 11 of section 590 of the Labor Law. Relevant again is language from J. I. Case Co. v Labor Bd. (321 US 332, 334, supra): "Contract in labor law is a term the implications of which must be determined from the connection in which it appears.” That precept finds application in the determination by the appeal board and makes inapplicable the multitude of cases from the body of general contract law, giving a restricted meaning to the term, cited by claimants.

Subdivision 11 of section 590 was enacted by chapter 675 of the Laws of 1977, the purpose of which chapter was to conform the unemployment insurance provisions of our State’s Labor Law to Federal unemployment compensation legislation. This latter legislation permitted States to disqualify nonprofessional employees of educational institutions from receiving summer recess unemployment insurance benefits if the employees had a "reasonable assurance” of continued employment following the recess (US Code, tit 26, § 3304, subd [a], par [6], cl [A], subcl [ii]). The appeal board also had available to it ample precedent in decisions from other jurisdictions, applying disqualifying provisions in Federal unemployment statutes barring benefits during summer recess to school professional employees with "contracts” for continued employment in the following academic year, that the term "contract” is not always to be given a strict construction and that a reasonable expectation of employment will serve (e.g., Hyduchak v Commonwealth of Pa., Unemployment Compensation Bd. of Review, 35 Pa Commw Ct 575; Harvey v Director of Dept. of Employment Security, — RI —, 385 A2d 1057 [RI]; Robinson v Administrator, Dept. of Employment Security, 356 So 2d 477 [La]; Williamson v Mississippi Employment Security Comm., 347 So 2d 978 [Miss]), in reaching these results it has been of no significance, for this consideration, that an employee to whom a notice of continued employment has been extended has failed — as had claimant Hess — to signify his acceptance of the continuation. A contract, within the meaning of an unemployment benefits ineligibility statute, may exist without a commitment on the part of the employee (see Matter of McCarroll [Ross], 64 AD2d 992). In substance, what is required is to establish that an employee of one academic year will be continued in employment by the educational institution in the following academic year. Evidence on which such a substantive conclusion may properly be predicated may be of differing sorts; the Federal statute specifies proof of a "reasonable assurance”, while subdivision 11 of our State statute calls for a "written contract” or an "individual contract”. That it is the substance of the assurance of continued employment rather than the form of its manifestation is confirmed when in subdivision 8 of our State statute "reasonable assurance” is employed and defined to require evidentiary proof in the form of a "written contract” (§ 590, subd 8).

Similarly, we reject the argument advanced by claimants that, because by enactment of chapter 675 of the Laws of 1977 the Legislature amended subdivision 10 of section 590 (disqualifying professional employees of educational institutions from summer recess benefits who had contracts for continued employment) by adding as a disqualifier a "reasonable assurance” of employment to the prior requirement of a "contract”, but adopted subdivision 11 (covering nonprofessionals) prescribing only a "written contract” or an "individual contract” as disqualifies, a much more stringent ineligibility test— namely, the existence of a formal contract — was being adopted for the latter class of school employees. We do not believe the conclusion claimants would draw is warranted. Rather, it would appear that the addition of the phrase "reasonable assurance” in subdivision 10 resulted from the fact that in 1976 Congress had made a similar addition to the Federal unemployment legislation to which the State Legislature was explicitly seeking to conform (Unemployment Compensation Amendments of 1976, Public L 94-566, § 115, subd [c]; 90 US Stat 2670-2671). Because there was no requirement for conformity by the State with Federal legislation as to nonprofessional employees, however, there was no need to include the phrase "reasonable assurance” in subdivision 11, which covered such employees. Its omission loses significance entirely if it be noted that the addition of the phrase in the Federal legislation applicable to professional employees, as to whom the disqualifying factor had theretofore been stated in terms of a "contract” only, was merely a "technical adjustment” (Harvey v Director of Dept. of Employment Security, — RI —, 385 A2d 1057, 1060 [RI], supra).

We are satisfied that the Industrial Commissioner in the case of each of the claimants now before us was warranted in determining that the mandate of the statute with respect to the existence of a "written contract” had been satisfied.

In each of the appeals the order of the Appellate Division should be affirmed.

Chief Judge Cooke

(dissenting). The majority today disregards the Legislature’s express provision of different standards governing unemployment eligibility for professional and nonprofessional public school employees. Because of this strained reading of section 590 of the Labor Law, I must dissent.

The issue in these cases concerns the eligibility of nonprofessional public school employees who are members of collective bargaining units for unemployment benefits during the summer recesses. The statute provides that such an employee, who is usually paid on an hourly basis, should be disqualified only when as a member of a collective bargaining unit he has a written contract for continued employment in the fall. The majority, however, applies the broader grounds of disqualification applicable to professional employees, who are generally employed through annual contracts that frequently take into account the summer recess. In so doing, the majority wipes away the requirement of a collective bargaining contract and allows revocable offers and assurances that do not rise to the status even of individual contracts to suffice.

Subdivision 11 of section 590 establishes two distinct categories of nonprofessional employees — those who are members of collective bargaining units and those who are not. Those who are members are ineligible for unemployment benefits "provided the claimant as a member of a collective bargaining unit has a written contract which continues his services in such capacity” after the summer recess (emphasis added). An employee who is not a member is ineligible if he or she has "an individual contract to perform services” after the recess. The majority correctly recognizes that the claimants here fall into the first category. But it errs in finding that to require a collective bargaining contract to disqualify employees in the first category places "unwarranted emphasis” on the statutory language. To require a collective bargaining agreement does no more than recognize the distinction drawn by the Legislature and accord the language its plain meaning. This is especially so because the second part of the subdivision speaks of "individual contracts” for nonmembers but makes no such reference regarding members of collective bargaining units. "When different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended” (Matter of Albano v Kirby, 36 NY2d 526, 530).

There is an important reason to require a collective bargaining, rather than an individual, contract to disqualify members of collective bargaining units from unemployment benefits. When members of a bargaining unit select appropriate bargaining representatives those agents "shall be the exclusive representatives of all the employees in the appropriate unit for the purposes of collective bargaining” (Labor Law, § 705, subd 1). Public employees, under the Taylor Law, have the right to collectively bargain through representatives, and it is improper practice for an employer to interfere with this representation (Civil Service Law, §§ 202, 203, 208, 209-a). Thus, there can be no individual contracts between an employer and members of a collective bargaining unit. The majority disregards this fundamental principle.

Even if subdivision 11 could be read as allowing contracts other than the collective bargaining unit’s agreement, however, there would be no such contracts here. The majority finds it reasonable for the Unemployment Insurance Appeal Board to have constructed some form of "contract” out of two factors. When each of its two components is scrutinized, however, this "contract” evaporates. First, the board relied upon the "Triborough Doctrine”, which has been formulated by the Public Employment Relations Board (Matter of Triborough Bridge & Tunnel Auth. [Dist. Council 37 & Local 1396], 5 PERB 3064). The doctrine prevents an employer from unilaterally changing terms or conditions of employment that are mandatory subjects of bargaining when a bargaining agreement has expired and a new one is still being negotiated (see Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd., 41 NY2d 753). The majority reasons that if an employee individually reached agreement to work in the fall, the Triborough Doctrine could be used to define the terms of the employment and thus create a contract. The flaw with this reasoning, however, is that it would permit an employer to in effect negotiate separately with an individual employee and reach an individual "contract” that touched even on subjects of mandatory bargaining. This would run roughshod over the principle that the bargaining representative is the exclusive bargaining agent for the unit. If employers can negotiate with individual members, there is no "collective” bargaining. A second flaw with this reasoning is that in at least some of the cases here there was no binding obligation by the school district to rehire the employee: In one case the claimant never responded to the district’s letter. In a second the response was arguably conditional, and in a third the union has alleged that the acceptances were coerced. Absent such acceptance, the offers of continued employment were revocable and not binding (Rubin v Dairymen’s League Co-op. Assn., 284 NY 32; Petterson v Pattberg, 248 NY 86).

Considering these impediments to finding the existence of a contract here, it is not surprising that the majority concludes that "a reasonable expectation of employment will serve” to bar claimants (p 331). What the majority in effect does is read the more liberal disqualification standards for professional employees, contained in subdivision 10 (of section 590), into subdivision 11.

Subdivision 10 makes professional employees ineligible for summer unemployment compensation if they have either a "contract” or a "reasonable assurance” of continued employment for the following fall. Subdivision 11, in stark contrast, does not contain the alternative of a "reasonable assurance,” showing that the Legislature intended to distinguish teachers and other professional employees from nonprofessionals.

The alternative "reasonable assurance” was added to subdivision 10 by the Legislature in 1977, at the same time that it created subdivision 11. The majority argues that the different wording of the two sections has no significance because the Legislature was simply adopting changes required by Congress as a condition for continued Federal reimbursement. This argument misses the point. Congress amended the Federal statute (US Code, tit 26, § 3304, subd [a], par [6], cl [A], subcls [i], [ii]) in 1976 to require that States provide that "compensation shall hot be payable” to professional employees "if there is a contract or reasonable assurance” of continued employment (emphasis added). For nonprofessional employees, the Federal amendment said only that States could provide that "compensation * * * may be denied to any individual” who has a reasonable assurance of employment in the fall (emphasis added). The House Conference Report makes clear that this distinction was a conscious one (H Rep No. 94-1745).

Thus, Congress gave the Legislature no choice but to adopt legislation denying compensation to professional employees who had a reasonable assurance of continued work. It gave the States a choice as to whether to deny compensation to nonprofessionals who had only a reasonable assurance of reemployment, however, and this State’s Legislature opted not to deny compensation to these workers. The distinction drawn by Congress and the Legislature between a "contract” and a "reasonable assurance” is thus a lucid and conscious one. To conflate the two terms guts the legislation of its plain meaning.

In support of its position, the majority cites several cases that loosely interpreted the "contract” requirement. to bar school employees from recovering unemployment compensation. These cases dealt with professional employees, however, not nonprofessionals. At the time of these cases, neither the Federal statute nor this State’s Labor Law excluded nonprofessionals from receiving benefits over the summer, regardless of whether they had a contract for renewed employment in the fall. Indeed, in Robinson v Administrator, Dept. of Employment Security (356 So 2d 477 [La]), the court noted this different treatment and found that "the different functions and characteristics between teachers and other employees of the school system” provided a rational basis for excluding teachers from summer unemployment compensation when they had guarantees of continued employment while allowing nonprofessional employees to receive compensation even though they had formal contracts (id., at p 482). If there was a rational basis for this sharp difference in treatment prior to the 1976 Federal amendments, there is certainly a basis for the slight distinction made under current law.

The majority also bases its decision in part on deference to the unemployment appeal board’s interpretation of the term "contract” in subdivision 11. This determination should carry no weight. Where "the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

There thus is- nothing to support the majority’s finding of a contract or its reading of "contract” and "reasonable assurance” — two distinct concepts — as meaning the same thing. This interpretation wipes out the different treatment that the Legislature established for professional and nonprofessional school employees regarding eligibility for unemployment compensation, in effect merging subdivisions 10 and 11 of section 590 of the Labor Law. Only the Legislature should undertake such action.

The orders of the Appellate Division should be reversed.

Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur with Judge Jones; Chief Judge Cooke dissents and votes to reverse in a separate opinion.

In each case: Order affirmed, with costs.

      . None of the collective bargaining agreements now before us included any provisions for employment of claimants La Mountain, White, Brant, Bunning, Williams or Hess. We have been informed that the cases now before us were selected to serve as precedents and that numerous other cases are being held in abeyance pending the outcome of these appeals. Nowhere is it suggested that an individual contract of hire has been found in any collective bargaining agreement.

      . Frequent references in the briefs of claimants’ counsel to the absence of a "job security clause” in the collective bargaining agreements to which these school districts were parties during the 1977-1978 school year appear to suggest that such a clause, if included, might serve as a contract of employment within the agreements. Whether or not that is so is not now necessary to decide in view of our disposition of these appeals. It should not be overlooked however that the present claimants were employed during the 1977-1978 school year for a fixed term coincident with the school year, at the end of which their employment under those contracts ceased by reason of expiration of term. A “job security clause” which mandated only the continuance of particular positions would not necessarily assure the present incumbents of continued employment.

      . In the case of the BaMwinsville district, continuation was not a factor because the collective bargaining agreement ran to June 30, 1979.


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    Robert E. Kurzius, Inc., et al., Respondents, v Incorporated Village of Upper Brookville, Appellant.
    Argued October 6, 1980;
    decided November 20, 1980

      POINTS OF COUNSEL

      Joseph L. Tobin, Jr., for appellant.
    I. The holding of the court below that defendant’s five-acre zoning is "exclusionary” is neither supported by proof in the record nor by the decisions of this court. (Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359; Berenson v Town of New Castle, 38 NY2d 102.) II. The zoning ordinance is not discriminatory as applied to plaintiffs’ property. (Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431.) III. The zoning ordinance, as applied to the subject property, is consonant with the comprehensive plan. (Albright v Town of Manlius, 28 NY2d 108; Rogers v North Amer. Philips Co., 37 Misc 2d 923, 19 AD2d 838; Twenty-one White Plains Corp. v Village of Hastings-on-Hudson, 14 Misc 2d 800, 9 AD2d 934; Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178.) IV. The zoning ordinance is not confiscatory as applied to plaintiffs’ property. (Gates of Woodbury Co. v Town of Oyster Bay, 29 AD2d 943; Koff v Incorporated Vil. of Flower Hill, 29 AD2d 655, affd sub nom. Chase Manhattan Bank v Incorporated Vil. of Flower Hill, 28 NY2d 694.)

      John M. Armentano, George J. Farrell, Jr., and Robert V. Guido for respondents.
    I. The five-acre minimum area requirement in the Upper Brookville zoning ordinance is illegal because it is neither a necessary nor reasonable response to the purposes for which a village may impose land use restrictions under the village law. II. The five-acre minimum area requirement is unconstitutional because it is, in purpose and effect, a community attempt at immunization and exclusion. III. The court below properly applied the traditional substantive due process analysis in striking down the five-acre zoning. (Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269; Westwood Forest Estates v Village of South Nyack, 23 NY2d 424; French Investing Co. v City of New York, 39 NY2d 587; Steel Hill Dev. v Town of Sanbornton, 469 F2d 956.) IV. The Upper Brookville ordinance is unconstitutional because it was not enacted pursuant to a comprehensive plan as required by section 7-704 of the Village Law, (Udell v Haas, 21 NY2d 463; Rogers v North Amer. Philips Co., 37 Misc 2d 923, 19 AD2d 838; Twenty-one White Plains Corp. v Village of Hastings-on-Hudson, 14 Mise 2d 800, 9 AD2d 934; Town of North Hemp-stead v Village of North Hills, 38 NY2d 334; Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178.) V. The Upper Brookville zoning ordinance as applied to the Kurzius property is discriminatory and therefore void. VI. The rezoning of plaintiffs’ property is confiscatory in that it has rendered it unmarketable. (McGowan v Cohalan, 41 NY2d 434; French Investing Co. v City of New York, 39 NY2d 587; Williams v Town of Oyster Bay, 32 NY2d 78.) VII. As to the contention of the amici curiae, neither the "regional development plan” and the "north shore area plan” nor the Adirondack Park Agency Act and the cases cited by amici curiae furnish a justification for the zoning under review. (Wambat Realty Corp. v State of New York, 41 NY2d 490; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269.)

      Gus Bauman for National Association of Home Builders and others, amici curiae.

    Large-lot zoning (here, five acres) has the demonstrable effect, if not also the purpose of so increasing housing costs as to be exclusionary, thereby unconstitutionally violating the police power standard of protecting the public health, safety or general welfare. (Berenson v Town of New Castle, 38 NY2d 102; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 409 US 1003.)

      William H. Mathers for Village of Cove Neck, amicus curiae.

    I. The North Shore Area Plan (NSAP) which calls for low density zoning is compatible with and supported by other regional plans. II. The concept of exclusionary zoning must only be examined within the framework of regional needs and practical considerations. (Euclid v Ambler Co., 272 US 365; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Wulfsohn v Burden, 241 NY 288; Berenson v Town of New Castle, 38 NY2d 102.) III. Five-acre zoning does not stop growth if it is compatible with regional plans which direct where proper growth should take place. (Village of Belle Terre v Boraas, 416 US 1.)

      Edward N. Costikyan and Steven S. Honigman for North Shore Area Mayors Joint Municipal Survey Committee, amicus curiae.

    I. The ordinance accomplishes a legitimate public purpose by preserving open space. (Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359; Village of Belle Terre v

      Boraas, 416 US 1.) II. The ordinance is not exclusionary. (Matter of Fulling v Palumbo, 21 NY2d 30; Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221; Connolly v Incorporated Vil. of East Hills, 26 NY2d 801; Gardner v Le Boeuf, 24 Misc 2d 511, 15 AD2d 815.)
   OPINION OF THE COURT

Gabrielli, J.

Plaintiffs, in this action for a declaratory judgment, attack a zoning ordinance of the defendant Village of Upper Brookville which creates, in certain areas of the village, minimum lot requirements of five acres. The ordinance in question was adopted some 20 years ago and, while plaintiffs originally attacked the ordinance on various grounds, the Appellate Division by its holding and the plaintiffs, in this court by their briefs and argument, have narrowed the law issues to the sole contentions that the ordinance is constitutionally void and also invalid because not enacted in compliance with section 7-704 of the Village Law. The Appellate Division sustained plaintiffs’ claim of constitutional invalidity and struck down the ordinance. We reverse and sustain the ordinance.

The Village of Upper Brookville, located on the north shore of Long Island, enacted a zoning ordinance in 1960 which required a minimum lot size of at least two acres in some portions of the village, and at least five acres in other portions. At that time the village contained a number of relatively peaceful and rural areas. The ordinance was enacted by the village some two months after its approval and adoption of a comprehensive master plan involving the entire 2,737 acre area of the village. This plan was the culmination of an 18-month study conducted under the direction of Francis Dodd McHugh, an architect and professional planner engaged by the village. The master plan as finally adopted was the product of intensive studies made by both the village planning board and the board of trustees, and was subjected to and widely discussed at several announced public hearings.

In 1968, the corporate plaintiff purchased a 60-acre tract of land within the village. Pursuant to the provisions of the ordinance adopted some eight years prior to plaintiffs’ purchase of his acreage, 10 acres of this land were zoned for 2-acre lot development, and the remaining land was in a zone requiring a minimum lot size of 5 acres. A short time later, the corporate plaintiff received subdivision approval for five 2-acre lots to be placed on the 10-acre parcel, and subsequently erected and sold five houses on these lots. Plaintiffs later commenced an action attacking the 5-acre minimum lot requirement on their remaining 50 acres alleging, among other things, that the ordinance was unconstitutional as an unreasonable and improper exercise of the police power. It remains undisputed that the subject property lies within a coherent area characterized by estate-type development and is generally bounded by properties developed on a large lot basis.

In general, the enactment of a zoning ordinance is a valid exercise of the police power if its restrictions are not arbitrary and they bear a substantial relation to the health, welfare and safety of the community (Euclid v Ambler Co., 272 US 365, 395). In New York, the Legislature has delegated zoning power to village boards pursuant to section 7-700 of the Village Law. Such delegation is not, of course, "coterminous with stated police power objectives and has been considered less inclusive traditionally” (Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 370, app dsmd 409 US 1003). Section 7-704 of the Village Law provides that these zoning regulations must be made in accordance with a comprehensive plan, and may be made only for certain enumerated purposes, including the promotion of health and the general welfare of the village. Thus, both the constitutional and statutory validity of a zoning ordinance depend "on the facts of the particular case and whether it is 'really designed to accomplish a legitimate public purpose’ ” (Berenson v Town of New Castle, 38 NY2d 102, 107, quoting Matter of Wulfsohn v Burden, 241 NY 288, 299).

A zoning ordinance will be invalidated on both constitutional and State statutory grounds if it was enacted with an exclusionary purpose, or it ignores regional needs and has an unjustifiably exclusionary effect (Matter of Golden v Planning Bd. of Town of Ramapo, supra; Berenson v Town of New Castle, supra). However, in this case, because there was insufficient and, indeed, a complete absence of proof of regional needs or a discriminatory purpose and no proof that the zoning ordinance in question has excluded or will exclude persons having a need for housing within the municipality or within the region, the issues are narrowed to the questions of whether five-acre zoning is exclusionary per se and an impermissible exercise of the police power, and whether the village acted within the ambit of section 7-704 of the Village Law.

As legislative acts, zoning ordinances carry a presumption of constitutionality (Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61, 65; Marcus Assoc. v Town of Huntington, 45 NY2d 501, 505). We have stated on several occasions that this presumption is rebut-table, but that unconstitutionality must be demonstrated beyond a reasonable doubt (e.g., Marcus Assoc. v Town of Huntington, supra). This burden has not here been met. As Judge Fuld stated in Rodgers v Village of Tarrytown (302 NY 115, 121): "[T]he power of a village to amend its basic zoning ordinance in such a way as reasonably to promote the general welfare cannot be questioned. Just as clearly, decision as to how a community shall be zoned or rezoned, as to how various properties shall be classified or reclassified, rests with the local legislative body; its judgment and determination will be conclusive, beyond interference from the courts, unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed upon him who asserts it. In that connection, we recently said (Shepard v. Village of Skaneateles, 300 N. Y. 115, 118): 'Upon parties who attack an ordinance * * * rests the burden of showing that the regulation assailed is not justified under the police power of the state by any reasonable interpretation of the facts. "If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 388; see, also, Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167, 169, 170; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 296-297.)’ ”

The zoning power, when properly used, is an effective means to promote the public welfare. Large-lot zoning has also been used to achieve this end, and minimum acre lot restrictions have been upheld on several occasions for varying reasons (see 1 Anderson, New York Zoning Law and Practice [2d ed], § 7.11) including, most recently, the preservation of open-space land and the protection of a municipality’s residents from the ill-effects of urbanization (Agins v Tiburon, 447 US 255, 261-262). We realize, of course, that large-lot zoning may also be used as a means to exclude persons of low or moderate income; and as we have stated before, we will not countenance community efforts at exclusion under any guise (Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 378, app dsmd 409 US 1003, supra).

The tests for determining when large-lot zoning has been used in an impermissible manner are suggested by our decision in Berenson v Town of New Castle (38 NY2d 102, supra). In that case we dealt with the validity of an ordinance excluding multifamily housing as a permitted use. There we expressed our concern for balanced and integrated communities, as well as our concern that regional needs be met. These concerns gave rise to a two-part test. First, the local board is required to provide a properly balanced and well-ordered plan for the community. Secondly, in enacting the zoning ordinance, consideration must be given to regional needs and requirements. This portion of the test was fashioned to meet the demands of both the Constitution and New York’s statutory scheme, because under either basis the regulation must promote the regional welfare (see Developments in the Law— Zoning, 91 Harv L Rev 1427, 1638). It requires a "balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met” (Berenson v Town of New Castle, supra, p 110). In this regard we there noted that "[s]o long as the regional and local needs for such housing were supplied by either the local community or by other accessible areas in the community at large, it cannot be said, as a matter of law, that such an ordinance had no substantial relation to the public health, safety, morals or general welfare” (supra, p 111).

Generally then, a zoning ordinance enacted for a statutorily permitted purpose will be invalidated only if it is demonstrated that it actually was enacted for an improper purpose or if it was enacted without giving proper regard to local and regional housing needs and has an exclusionary effect. Once an exclusionary effect coupled with a failure to balance the local desires with housing needs has been proved, then the burden of otherwise justifying the ordinance shifts to the defendant (see Developments in the Law — Zoning, 91 Harv L Rev 1427, 1641). Such is not, however, the case before us.

In the instant case, plaintiffs attempted to show that the enactment of the village ordinance was motivated by an improper purpose by pointing to a portion of the testimony of the architect retained by the village board. In his testimony he stated that he had consulted with people within the village including, of course, large landowners. This testimony does not and cannot sustain the plaintiffs’ burden of proving an exclusionary purpose, nor does it demonstrate any such purpose, particularly when coupled with the other evidence presented in this case. The record shows clearly that the purpose of the ordinance was to preserve the open-space areas of the village, which may be a legitimate goal of multiacre zoning (see Agins v Tiburon, 447 US 255, supra). Additionally, plaintiffs have not demonstrated that the ordinance in question was not enacted in accordance with, a comprehensive master plan, or that pressing regional needs were ignored in formulating the oridance. There was no proof that persons of low or moderate incomes were foreclosed from housing in the general region because of an unavailability of properly zoned land. In fact, there was no showing of need in the village for lots of less that five acres. Thus, plaintiffs failed to prove that the two-pronged Berenson test had not been met. Absent a showing by plaintiff of an exclusionary purpose behind a zoning ordinance, or that the zoning authority had failed to meet the criteria set forth in Berenson, the presumption of constitutionality which accompanies the legislative act must prevail unless the ordinance is without a doubt facially invalid. Based upon the record before us, we cannot say that the ordinance in question was an unreasonable and improper exercise of the police power, or beyond the power delegated by section 7-704 of the Village Law.

Although some courts have assertedly found multiacre zoning to be per se exclusionary and thus invalid (Developments in the Law—Zoning, 91 Harv L Rev 1427, 1641), we do not so hold because of what we perceive to be legitimate purposes of such zoning (see Agins v Tiburon, 447 US 255, supra; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269). In regard to a related question, the Supreme Court has noted that “[a] quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addresed to family needs” (Village of Belle Terre v Boraas, 416 US 1, 9). Although enviromental factors may justify large-lot zoning, we do not hold that this type of zoning is permissible without qualification, because minimum lot requirements may involve exclusionary practices.

We recognize that area zoning of this nature might in some circumstances not here present tend to prevent some individuals from making use of zoned land, just as any zoning ordinance tends to prevent certain other desired uses. Therefore, in order to withstand a claim of the potential for an exclusionary effect, these ordinances must be motivated by a proper purpose. The contrary has not here been demonstrated.

In Berenson we pointed out the anomaly of a court’s being required to perform the tasks of a regional planner, since zoning and regional planning are essentially legislative acts (Berenson v Town of New Castle, 38 NY2d 102, 111, supra). Since that time several comprehensive plans for the region have been developed. However, because these studies were not part of the record on appeal, they could not be considered by the court (see Matter of Levine v New York State Liq. Auth., 23 NY2d 863). Nonetheless, they illustrate the approach to regional zoning problems which was favored in Berenson.

Upon the record before us, plaintiffs have not met their burden of proving an exclusionary purpose or noncompliance with the Berenson criteria. They have thus failed to overcome the presumption of constitutionality which attaches to the village ordinance in question, and have failed to demonstrate that the ordinance did not meet the requirements of the Village Law. We also find the other arguments put forth by plaintiffs to be without merit.

Accordingly, the order should be reversed, with costs, and the judgment of Supreme Court, Nassau County, declaring the ordinance to be valid, reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and the judgment of Supreme Court, Nassau County, reinstated.

       Although regional needs may presently be met, this does not foreclose a zoning ordinance from all future inquiry. As population patterns shift and the demand for housing in a given region necessarily increases, a re-examination of an existing zoning scheme may be warranted (see County Comrs. of Queen Anne’s County v Miles, 246 Md 355; see, also, Steel Hill Dev. v Town of Sanbornton, 469 F2d 956).


author: Jasen, J.

text:
    In the Matter of the Arbitration between Franklin Central School, Appellant, and Franklin Teachers Association et al., Respondents. In the Matter of the Arbitration between Franklin Central School, Respondent, and Franklin Teachers Association, Appellant.
    Argued October 6, 1980;
    decided November 25, 1980

      POINTS OF COUNSEL

      Edward J. Sarzynski for appellant in the first above-entitled proceeding.
    I. The union has failed to meet its burden of proving that the parties agreed to have arbitration resolve disputes concerning the civil service position of school nurse. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 59 AD2d 1042, 49 NY2d 732; Matter of Abdallah v Board of Educ., 61 AD2d 1096; Matter of Board of Educ. v Barni, 49 NY2d 311.) II. The positions of school nurse and school nurse-teacher are different, since the former is under the Civil Service Law and the latter is under the Education Law. (Matter of Bork v City School Dist. of City of North Tonawanda, 60 AD2d 13; Matter of Abdallah v Board of Educ., 61 AD2d 1096; Matter of Mills v Nyquist, 63 AD2d 1060.) III. The school district had the right to create the new position of school nurse, and to set a rate for that position. It also had the right to make that new position part of the bargaining unit for negotiations purposes only, and to allow terms and conditions for that position to be negotiated. IV. An evidentiary hearing, at the very least, is required to determine what the parties intended and agreed to regarding the terms and conditions of employment for the newly created position of school nurse. (Matter of Board of Educ. [Malone Cent. Teachers Assn.], 53 AD2d 417.)

      Janet Axelrod and Paul E. Klein for respondents in the first above-entitled proceeding.
    I. A valid agreement to arbitrate the grievance in question exists. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Board of Educ. v Barni, 49 NY2d 311; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669; Matter of Board of Educ. v Roosevelt Teachers Assn., 47 NY2d 748; Mineola Union Free School Dist. v Mineola Teachers Assn., 46 NY2d 568; Board of Educ. v New Paltz United Teachers, 44. NY2d 890; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 NY2d 521; Matter of Board of Educ. [Bedford Teachers Assn.], 67 AD2d 474; Matter of Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35, 38 NY2d 740.) II. The "dissimilarity” of the positions of school nurse and school nurse-teacher under section 2510 of the Education Law is irrelevant in this proceeding to stay arbitration. (Board of Educ. v Lockport Educ. Assn., 64 AD2d 1027.) III. Alleged abstract "rights” of the district are not relevant in determining whether the parties have agreed to arbitrate the instant dispute. Arbitration is a proper forum to contest the district’s actions.

      Janet Axelrod and Paul E. Klein for appellant in the second above-entitled proceeding.
    A valid agreement exists to arbitrate the grievance in question. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Antinore v State of New York, 49 AD2d 6, 40 NY2d 921; Matter of Auburn Police Local 195, Council 82, Amer. Federation of State, County & Municipal Employees, AFL-CIO v Helsby, 62 AD2d 12, 46 NY2d 1034; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Board of Educ. v Barni, 49 NY2d 311; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 49 NY2d 669; Matter of Board of Educ. v Roosevelt Teachers Assn., 47 NY2d 748; Mineola Union Free School Dist. v Mineola Teachers Assn., 46 NY2d 568; Board of Educ. v New Paltz United Teachers, 44 NY2d 890; Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136.)

      Edward J. Sarzynski for respondents in the second above-entitled proceeding.
    I. The parties did not agree to have arbitration resolve disputes concerning the civil service position of school nurse. (Steele v Board of Educ., 40 NY2d 456; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Oneonta City School Dist. [Oneonta Teachers Assn.], 59 AD2d 797; Matter of Acting Supt. of Schools of Liverpool Gent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Board of Educ. v Barni, 49 NY2d 311; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Matter of Abdallah v Board of Educ., 61 AD2d 1096.) II. The positions of school nurse and school nurse-teacher are different, since the former is under the Civil Service Law and the latter is under the Education Law. (Matter of Bork v City School Dist. of City of North Tonawanda, 60 AD2d 13, 44 NY2d 647; Matter of Abdallah v Board of Educ., 61 AD2d 1096, 45 NY2d 710; Matter of Mills v Nyquist, 63 AD2d 1060, 47 NY2d 809.) III. The school district had the right to create the new position of school nurse. It also had the right to make that new position part of the bargaining unit for negotiations purposes only, and to allow terms and conditions for that position to be negotiated. (Matter of Mills v Nyquist, 63 AD2d 1060, 47 NY2d 809.) IV. An evidentiary hearing at the very least is required to determine what the parties intended and agreed to regarding the coverage of the arbitration clause of the Taylor Law contract. (Matter of Board of Educ. [Malone Cent. Teachers Assn.], 53 AD2d 417; Matter of Board of Educ. v Pearl Riv. Teachers Assn., 71 AD2d 654, 48 NY2d 830.)
   OPINION OF THE COURT

Jasen, J.

In each of the cases before us, the Franklin Teachers Association demanded arbitration of a grievance filed by one of its members, Ruth Laing. Petitioner Franklin Central School seeks, in two separate proceedings, to stay both arbitrations. The issues presented on these appeals are whether a nonteaching civil service school employee who has become, by agreement, part of the collective bargaining unit comprised of noncivil service teaching employees should be afforded the benefit of a broad arbitration clause contained within the teachers’ collective bargaining agreement and whether arbitration is the proper forum in which to test such nonteaching employee’s potential entitlement to other substantive terms of the collective bargaining agreement.

Ruth Laing was employed by petitioner Franklin Central School (hereinafter "the school district”) as a "school nurse-teacher”. During her employment in this noncivil service teaching position, Laing became a member of respondent Franklin Teachers Association (hereinafter "the teachers association”). On May 18, 1977, the board of education abolished the position of school nurse-teacher, effective June 30, 1977, and created in its stead a new nonteaching civil service "school nurse” position. Upon learning of the abolition of this teaching position, the teachers association filed an "improper practice” charge with the Public Employment Relations Board alleging that the school district’s "unilateral elimination” of the school nurse-teacher position was improper. At a prehearing conference between the school district and the teachers association, the improper practice charge was settled. Among the conditions of that settlement were that the newly created civil service position of school nurse would be offered to Ms. Laing on a probationary basis and that the new position would be "a part of the teaching unit for the purpose of negotiations under the provisions of the Civil Service Law.” Shortly after this settlement was achieved, the new school year began and Ms. Laing started her new position as school nurse at a salary substantially less than she had received as a school nurse-teacher.

In October, 1977, the teachers association filed a grievance against the school district alleging that Ms. Laing was "a member of the [collective] bargaining unit and [was] being paid improperly.” At root of this grievance is the notion that Laing, as a member of the collective bargaining unit, is entitled to the benefits of the previously negotiated collective bargaining agreement. After completion of the preliminary grievance procedures in the agreement, the teachers association demanded arbitration on February 24, 1978. The school district responded by- instituting a judicial proceeding pursuant to CPLR 7503 seeking a stay of the proposed arbitration upon the ground that the collective bargaining agreement was applicable only to teachers and not to a civil service school nurse.

Before any resolution could be reached on the merits of the above salary grievance and, indeed, before the proceeding to stay was commenced, a second dispute between the parties arose. On March 6, 1978, shortly after the teachers association had demanded arbitration of the "salary grievance”, the school district terminated Ms. Laing’s employment as school nurse on the basis of alleged "unsatisfactory service”. The teachers association filed a grievance upon this issue as well, contending that under the terms of the teachers’ collective bargaining agreement Ms. Laing could not be terminated without "just cause” and again demanded arbitration. The school district in a separate proceeding sought a stay of arbitration, this time upon the ground that the "just cause” provision in the agreement applied only to tenured teachers and not to a civil service school nurse.

Supreme Court, Delaware County, denied the school district’s motion for a stay of arbitration of the "salary grievance”, holding that the school district’s agreement to expand the bargaining unit to include the school nurse gave Ms. Laing the right, as a member of such unit, to seek arbitration of any grievance arising under the collective bargaining agreement. The court, however, granted the stay of arbitration of the so-called "just cause grievance” upon the ground that the "just cause” provision of the collective bargaining agreement "obviously” applies only to tenured teachers. Thus, since Ms. Laing was not a "tenured teacher”, the court concluded that she "clearly is not entitled to the benefits of [the 'just cause’ provision].”

The Appellate Division affirmed both orders of Supreme Court. The court agreed with Special Term that although Ms. Laing was a member of the collective bargaining unit and was, therefore, able to arbitrate her salary dispute, she could not arbitrate her "just cause grievance” because that provision of the contract applied only to tenured employees. We cannot agree. In our view, both of the disputes in issue should be submitted to the arbitrator. We therefore affirm the order of the Appellate Division allowing arbitration of the salary dispute and reverse the order precluding arbitration of the "just cause” dispute.

A threshold question on this appeal is whether the collective bargaining agreement and the arbitration provisions contained therein apply at all to the position of school nurse. Inasmuch as this question involves only a determination of whether an agreement to arbitrate exists and has nothing whatever to do with the merits of the dispute sought to be arbitrated, it is a question for the court to decide. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509.) Both of the courts below held that the settlement arrived at between the school district and the teachers association on the original "improper practice” charge, whereby the school district agreed to expand the scope of the teachers’ bargaining unit to include the school nurse, brought Ms. Laing, as a school nurse, within the scope of the collective bargaining agreement. We see no reason to disturb that holding. Having expressly agreed to include the position of school nurse in the teachers’ bargaining unit in settlement of an administrative claim of impropriety, it ill becomes the school district now to assert that this agreed change in status does not afford the school nurse the same contractual rights applicable to all other members of the bargaining unit.

This conclusion, however, does not end our inquiry. Once it is determined that the teachers association may invoke the collective bargaining agreement containing an arbitration clause on behalf of Ms. Laing, it remains to be determined whether the disputes in issue are arbitrable. The scope of judicial review on this question is, of course, very limited. In determining whether a public employee dispute is arbitrable, a court can only concern itself with two questions, to wit: (1) whether arbitration of the subject matter of the dispute is permissible under the Taylor Law (Civil Service Law, art 14) and is allowable as a matter of public policy; and (2) whether the parties agreed by the terms of their arbitration clause to submit such disputes to arbitration. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 513, supra.) If it is determined that the arbitration clause is broad enough to encompass the subject matter of the dispute, any question whether a substantive portion of the agreement in issue entitles the grievant to the relief sought is for the arbitrator to decide. (Board of Educ. v Barni, 49 NY2d 311, 314-315.) Applying these standards to the case before us, we conclude that both the "salary grievance” and the "just cause grievance” are arbitrable.

There appears to be no question that both a salary dispute and a dispute over the propriety of the termination of a probationary civil service employee are matters which the Taylor Law would not require to be excluded from arbitration. The school district cannot seriously contend otherwise. Thus, this first prong of the Liverpool test is satisfied.

It also seems clear that the disputes in issue fall within the extremely broad ambit of the arbitration clause. Article 29 of the collective bargaining agreement between the teachers association and the school district provides that after some preliminary procedures have been completed, all "grievances” are arbitrable. The agreement defines the term "grievance” in the broadest possible terms, including, inter alia, "any claimed violation, misinterpretation, mis-application or inequitable application” of the substantive terms of the agreement.

Thus, the teachers association’s claim that the school nurse is being improperly paid is, in our view, arbitrable, for it presents only the question whether one of the substantive terms of the collective bargaining agreement — the salary schedule — is being properly applied by the school district. The same may be said of the so-called "just cause grievance”. This grievance calls into question the applicability of article 27 of the agreement which states in full: "No teacher granted tenure will be dismissed without just cause.” The school district’s argument that it is clear that a probationary civil service school nurse is not a "tenured teacher” within the meaning of the agreement does not change the fact that the dispute involves a question of contractual interpretation which must be left to the arbitrator. Since the parties agreed to submit the merits of their disputes to arbitration, the courts should not stay arbitration upon the ground that a claim is meritless for it is precisely that issue which the arbitrator is to decide.

Indeed, we have only recently stated that no stay of arbitration is available where "the parties’ agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract.” (Board of Educ. v Barni, 49 NY2d 311, 314-315, supra; see, also, Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669; Matter of Board of Educ. v Roosevelt Teachers Assn., 47 NY2d 748.) Thus, where, as here, the grievant has shown that the substance of the dispute in issue is within the scope of the arbitration clause, arbitration should not be stayed upon the ground that the substantive merits of the claim are weak.

Accordingly, the order of the Appellate Division affirming Special Term’s denial of a stay of arbitration of the "salary grievance” should be affirmed, and the order of the Appellate Division affirming Special Term’s grant of a stay of arbitration on the "just cause grievance” should be reversed, with costs, and appellant’s cross motion to compel arbitration granted.

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

In the first above-entitled proceeding: Order affirmed, with costs.

In the second above-entitled proceeding: Order reversed, with costs, and appellant’s cross motion to compel arbitration granted.

       The contractual provision defining the term "grievance” provides in full: "1) A Grievance is a claim by any teacher or group of teachers in the negotiating unit based upon any event or condition affecting their welfare and/or terms and conditions of employment, including, but not limited to, any claimed violation, misinterpretation, misapplication or inequitable application of law, rules, or regulations having the force of law, this Agreement, policies, rules, by-laws, regulations, directions, orders, work rules, procedures, practices or customs of the Board of Education and administration.” Although, by its terms, the agreement refers only to claims "by any teacher or group of teachers in the negotiating unit”, as noted earlier, we believe the expansion of the negotiating unit to include the school nurse brought Ms. Laing, as school nurse, within the ambit of the agreement. Having decided that the arbitration clause is applicable to Ms. Laing, the only question remaining is whether the substance of the dispute falls within the scope of the arbitration clause.


text:
    George Cohen Agency, Inc., Plaintiff, v Donald S. Perlman Agency, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents. Continental Casualty Company, Third-Party Defendant-Appellant, et al., Third-Party Defendant.
    Argued October 15, 1980;
    decided November 25, 1980

      POINTS OF COUNSEL

      James A. Gallagher, Jr., and Robert A. Faller for third-party defendant-appellant.
    I. The relief requested from Continental is not the appropriate subject of a third-party action. (Carroll Sheet Metal Works v Mechanical Installations, 201 Misc 689; Victory Painters & Decorators v Miller, 198 Misc 196; Gleason v Sailer, 203 Misc 227; Howarth v Brown, 60 Misc 2d 587; Horn v Ketchum, 27 AD2d 759; Funt v Ruiz, 58 AD2d 801; Lawrence Constr. Corp. v State of New York, 293 NY 634; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Glasser v Price, 35 AD2d 98; Norman Co. v County of Nassau, 63 Misc 2d 965.) II. The action against Continental is removable to Federal court. (Strawbridge v Curtiss, 3 Cranch [7 US] 267; American Fire & Cas. Co. v Finn, 341 US 6; U. S. Inds. v Gregg, 348 F Supp 1004, 540 F2d 142, 433 US 908; Gallagher v Continental Ins. Co., 502 F2d 827; Twentienth Century-Fox Film Corp. v Taylor, 239 F Supp 913.)

      Joseph L. Forstadt and William J. Robbins for defendants and third-party plaintiffs-respondents.
    I. The relief requested from Continental is the appropriate subject of a third-party action and thus the Appellate Division properly affirmed the Supreme Court’s denial of Continental’s motion to dismiss. (Wilson v New York State Elec. & Gas Corp., 23 AD2d 915; Braun v City of New York, 17 AD2d 264; De Lilli v Niagara Mohawk Power Corp., 11 AD2d 839; Taft v Shaffer Trucking, 52 AD2d 255; Norman Co. v County of Nassau, 63 Misc 2d 965; Lazarow, Rettig & Sundel v Castle Capital Corp., 63 AD2d 277; Holloway v Brooklyn Union Gas Co., 50 AD2d 603.) II. Assuming arguendo that the relief requested from Continental is not the appropriate subject of a third-party action, the third-party action should still not be dismissed". (Geller v Ticktin, 6 Misc 2d 16; Simplex Plumbing Supply Co. v Bonded Heat & Power Corp., 20 Misc 2d 652; Wheeler v Meadowbrook Transp. Corp., 3 AD2d 763; Halpern v Rodway, 3 AD2d 941; Ellenberg v Sydharv Realty Corp., 41 Misc 2d 1078.) III. Continental is not prejudiced by the decision of the court below or by consolidation. (Town of Freedom, Okla. v Musko

      gee Bridge Co., 466 F Supp 75; Littlefield v Continental Cas. Co., 475 F Supp 887; People v Muka, 440 F Supp 33; Perrin v Walker, 385 F Supp 945; Holloway v Gamble-Skogmo, Inc., 274 F Supp 321; Douglass v Park City Assoc., 331 F Supp 823; Union Planters Nat. Bank of Memphis v CBS, Inc., 557 F2d 84; Paxton v Weaver, 553 F2d 936; City of New York v New York Jets Football Club, 429 F Supp 987; American Fire & Cas. Co. v Finn, 341 US 6.)
   OPINION OF THE COURT

Jasen, J.

The significant issues on this appeal are whether CPLR 1007 permits a third-party plaintiff to seek damages in excess of the amount demanded by plaintiff in the main action and whether a third-party claim is maintainable in the face of a simultaneous contention that the third-party plaintiff is completely free from liability to the plaintiff in the main action.

This matter arises out of the transfer of a "portfolio” of insurance business, from one insurance agency to another. At issue are the relative rights and liabilities of the buyer, seller, insurance carrier (whose underwriting potential was the stuff transferred) and the attorney who arranged the sale. The instant procedural web was spun about these parties as follows: Plaintiff George Cohen Agency, Inc., the seller, agreed to transfer to defendant-respondents Donald S. Perlman Agency, Inc., and Donald S. Perlman, a specified "portfolio” of insurance business consisting of certain policies issued by Continental Casualty Company. The Perlman Agency and Perlman himself executed promissory notes in payment. These notes, however, were not honored when due. Perlman asserted that the Continental policies were no longer salable because they contravened certain New York Insurance Department regulations and that no payment need be made for the spoiled portfolio. Cohen then sued Perlman for $52,528 on the notes. This is the main action.

In the answer to this main action, and in a counterclaim against Cohen, it was asserted that Cohen, either individually or in concert with Continental and attorney-broker I. Edward Pogoda, attempted to defraud defendants by knowingly inducing them to purchase the worthless package of insurance business. The counterclaim sought rescission or reformation of the contract of sale or, in the alternative, compensatory damages in the amount of $545,000, punitive damages in the amount of $2,500,000, an unspecified amount of money allegedly paid to Cohen, and over $25,000 in attorney’s fees.

The same elements of legal damages, as well as indemnity and contribution for any potential liability of Perlman to Cohen, were demanded in third-party actions brought by Perlman against Continental and attorney Pogoda. These third-party actions, brought pursuant to CPLR 1007, were grounded upon the third-party defendants’ alleged complicity in a conspiracy to defraud Perlman and upon third-party defendant Pogoda’s alleged malpractice and breach of duty as an attorney.

Continental moved to dismiss Perlman’s third-party action, contending: (1) that CPLR 1007 does not permit a third-party plaintiff to demand damages in excess of those demanded in the main action; (2) that no third-party action is maintainable where the third-party plaintiff alleges facts which negate liability on the main action; and (3) that recognition of a third-party action would, in the circumstances of this case, prejudice Continental by impeding its ability to "remove” the case to Federal court. Special Term denied Continental’s motion to dismiss. The Appellate Division unanimously affirmed, as do we.

The law has long recognized the need for a procedure whereby one whose responsibility for an alleged legal wrong is to be tested in a lawsuit may bring before the court another who is claimed by the defendant to have a share in that responsibility so that all claims can be resolved in the one forum. The first procedural device commonly used to achieve this end was the common-law method of preserving one’s indemnity claim against a third party known as "vouching in” or "vouching to warranty”. (See, generally, Hartford Acc. & Ind. Co. v First Nat. Bank & Trust Co. of Hudson, 281 NY 162; Twelfth Ann Report of NY Judicial Council, 1946, pp 197-199; Siegel, New York Practice, § 168, p 207; Comment, Third-Party Practice in New York, 37 Cornell LQ 721-723.) This device, acknowledged to be the forerunner of modern third-party practice, allows a party to bind a potential indemnitor to the result reached in the main action by simply notifying him of the pendency of the action and offering him control of the litigation. No direct judgment is available against the third party when this device is used. However, the procedure at least insures that, under principles of res judicata, the issue of defendant’s liability to plaintiff need not be relitigated in a subsequent suit against the third-party indemnitor. Although still available today, this device is little used, for a much more comprehensive device — impleader — has been created by the Legislature.

The first impleader statute appeared in New York in 1922 as section 193 of the former Civil Practice Act. (L 1922, ch 624.) The basic language of the impleader statute, with minor changes, has been' carried forward to the present day and currently appears as CPLR 1007. Although the basic structure of the statute has changed little over the years, the interpretation of the statute and, thus, its scope has changed greatly.

Early on, the statute was construed narrowly, requiring that a defendant (third-party plaintiff in the jargon of the statute) demonstrate that his third-party claim was identical to the claim upon which he was being sued by plaintiff in the main action. (See, e.g., Nichols v Clark, MacMullen & Riley, Inc., 261 NY 118.) This interpretation, as might be expected, severely limited the utility of the device. Indeed, it was not until 1946 when the statute was amended that the effect of this restrictive interpretation was alleviated.

The 1946 amendment (L 1946, ch 971) added the following language to the statute: "The claim against such person, hereinafter called the third-party defendant, must be related to the main action by a question of law or fact common to both controversies, but need not rest upon the same cause of action or the sáme ground as the claim asserted against the third-party plaintiff.” (Former Civ Prac Act, § 193-a.) This change signaled the end of the so-called "identity” rule. Interestingly, when the impleader statute was transferred to its present place in CPLR 1007, the above sentence was once again deleted. This amendment, however, did not require a return to the old "identity” rule. Rather, the second operative clause of the above sentence was deleted because practice had so changed that it was now "unnecessary” and the first clause was deleted because, if read literally, it narrowed rather than expanded third-party practice — a result not intended by the revisors. (See Sixth Report of Senate Finance Committee Relative to Revision of Civil Practice Act, NY Legis Doc, 1962, No. 8, p 159; Norman Co. v County of Nassau, 63 Misc 2d 965 [Meyer, J.].) Thus, a review of the history of third-party practice in this State seems to disclose a trend toward liberalization and expansion of the availability of impleader. Recognition of this general trend, however, serves only as a starting point for our inquiry, for the scope of the statute remains unclear.

Indeed, the precise questions raised by this appeal — whether a third-party complaint may seek damages in excess of those sought on the main claim and whether such a claim may be maintained where the third-party plaintiff alleges facts which negate liability — have not yet been addressed by this court. They have been addressed by the lower courts in a way which, while it may not be truly inconsistent, certainly evinces a certain difference of opinion on these issues.

On the issue of "excess” damages, many lower courts have limited third-party practice solely to indemnity claims which do not exceed the amount of the main claim. (See, e.g., Carroll Sheet Metal Works v Mechanical Installations, 201 Misc 689, 690; Victory Painters & Decorators v Miller, 198 Misc 196.) Others have focused upon not only the amount, but also the nature of a third-party claim and the literal language of the statute and have noted that a third-party claim, if it is to be limited to "all or part of the plaintiff’s claim against [a third-party plaintiff]” must "rise from” or be conditioned upon or be otherwise based upon the liability to the plaintiff in the main action. (Cleveland v Farber, 46 AD2d 733; Horn v Ketchum, 27 AD2d 759.) This narrow view of the purpose of the statute would lead, of course, to the conclusion that no "excess” may be claimed.

On the other hand, there has been expressed in some lower courts a more liberal view of third-party practice generally. (See, e.g., Lazarow, Rettig & Sundel v Castle Capital Corp., 63 AD2d 277, 287, revd on other grounds 49 NY2d 508; Funt v Ruiz, 58 AD2d 801; Mallis v Kates, 56 AD2d 818; Norman Co. v County of Nassau, 63 Misc 2d 965, supra.) Such holdings, while they, do not speak directly to the issue of excess recovery, do appear to recognize that although third-party practice has its origins in strict indemnity, it has grown beyond its early limitations and should now be seen primarily as a tool for economical resolution of interrelated lawsuits. We agree with this broad view of the practice.

The current New York impleader statute, although it retains the familiar language limiting a third-party plaintiff to recovery against "a person not a party who is or may be liable to him for all or part of the plaintiff’s claim against him”, should not be read as allowing recovery solely for claims sounding in strict indemnity. While it is true that the doctrine of impleader has its roots in strict indemnity, the history and development of impleader and the language of the current statute indicate that the device is no longer wedded to this single theory of recovery. The language of CPLR 1007 serves only to identify the persons against whom a third-party claim may be brought. It places no limit upon the amount which may be recovered or upon the legal theories which may be asserted as a basis for the claim. Indeed, a narrower reading would subvert the purpose of the statute. It has long been clear that one of the main purposes of third-party practice is " 'the avoidance of multiplicity and circuity of action, and the determination of the primary liability as well as the ultimate liability in one proceeding, whenever convenient’.” (Krause v American Guar. & Liab. Ins. Co., 22 NY2d 147, 153; Eleventh Ann Report of NY Judicial Council, 1945, p 58; see, also, B. M. C. Mfg. Corp. v Tarshis, 278 App Div 266.) In our view, this salutary goal can best be achieved by allowing a third-party plaintiff to plead and prove his entitlement to excess recovery over and above his liability to plaintiff, subject to the trial court’s discretionary power to sever any claim which, in the circumstances of a particular case, appears unduly burdensome. (CPLR 1010.)

The soundness of such a rule becomes apparent upon an examination of the case before us. In the instant case, Perl-man claims that Continental’s acts and omissions caused him to enter into a transaction which may result in a finding that Perlman is liable to Cohen. Inasmuch as Perlman claims that Continental is responsible in part for any potential liability to Cohen, Perlman may implead Continental, making the insurer a party to the suit. Having successfully brought the new third-party defendant into the lawsuit to answer for its alleged wrongdoing, it would seem absurd to limit recovery for such wrongdoing to the amount demanded by plaintiff in the main action, for to do so can only result in an incomplete resolution of the dispute between the parties. Surely, if Perlman is successful on his "idemnity” claim, he will want to recover all the damages caused by the wrongdoing which formed the basis of that claim, including those which exceed the amount demanded by Cohen. If CPLR 1007 is narrowly construed to encompass only strict indemnity, Perlman would be required to commence a separate lawsuit in order to do so. Such a lawsuit would involve precisely the same factual issues as were involved in the main claim and counterclaim and, if brought separately, perhaps out of fear of "splitting” the cause of action (see Siegel, New York Practice, § 220, p 264), would cause an unnecessary drain upon judicial resources and create a risk of inconsistent results.

It is possible, of course, that such a second separate action could be consolidated or tried jointly with the main action. (CPLR 602.) This could provide the same conservation of judicial resources as would a claim for excess damages in a third-party suit. The availability of another procedural remedy is, however, not a reason to narrowly construe the impleader statute. Indeed, it would seem contrary to the modern spirit of liberal pleading to forego one commonsense rule in favor of a needless procedural dance which will arrive at the same result. Thus, we conclude that CPLR 1007 should not be construed as precluding a third-party suit for damages in excess of those demanded in the main action.

Continental also contends that the instant third-party claims should be dismissed because the facts pleaded in the third-party complaint negate any liability of Perlman to Cohen. (See Scivetti v Niagara Mohawk Power Corp., 33 AD2d 884.) We disagree. As noted by the Appellate Division, the facts alleged do not necessarily preclude liability on Perlman’s part. The pleadings, in fact, allege many claims in the alternative, including a claim for indemnity. This type of alternative pleading is clearly permissible and should not result in a dismissal of the third-party complaint.

Finally, Continental contends that Perlman’s third-party complaint should be dismissed because it somehow impedes Continental’s right, as a foreign corporation, to "remove” the case to Federal court pursuant to subdivision (c) of section 1441 of title 28 of the United States Code. This contention is without merit. The doctrine of "removal” is uniquely a Federal power to be exercised by Federal courts, applying Federal law. We see no reason to alter the civil practice of the State of New York to either encourage or discourage the exercise of that power. Thus, while a litigant may well believe that the exercise by the Federal court of its removal power would be beneficial in a particular case, his remedy is merely to seek such removal in Federal court, taking State procedure as he finds it.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

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

Order affirmed, etc.

       CPLR 1007 states:
      "§ 1007. When third-party practice allowed.
      "After the service of his answer, a defendant may proceed against a person not a party who is or may be liable to him for all or part of the plaintiffs claim against him, by serving upon such person a summons and third-party complaint and all prior pleadings served in the action. A defendant serving a third-party complaint shall be styled a third-party plaintiff and the person so served shall be styled a third-party defendant. The defendant shall also serve a copy of such third-party complaint upon the plaintiffs attorney.”