author: Simons, J.

text:
    Rochester Gas and Electric Corporation, Appellant, v Public Service Commission of the State of New York, Respondent.
    Argued January 7, 1988;
    decided February 11, 1988

      POINTS OF COUNSEL

      Richard N. George, Robert L. Daileader, Jr., and Jeffrey R. Clark for appellant.
    I. The court below failed to recognize that the forced conversion of the company into a common carrier of natural gas is a violation of due process. (Egan Real Estate v McGraw, 40 AD2d 299; Matter of City of New York [A. & W. Realty Corp.], 1 NY2d 428; Matter of Penn-York Natural Gas Corp. v Maltbie, 164 Misc 569; Matter of Public Serv. Commn. v Jamaica Water Supply Co., 42 NY2d 880; Matter of Brooklyn Union Gas Co. v Public Serv. Commn., 101 AD2d 453; Lee v Consolidated Edison Co., 98 Misc 2d 304; United States v Delaware, Lackawanna & W. R. R., 238 US 516; Smith v Cahoon, 283 US 553; Frost Trucking Co. v Railroad Commn., 271 US 583; Michigan Commn. v Duke, 266 US 570.) II. The court below incorrectly held that the Commission’s action in Opinion No. 85-6 does not affect a taking of the company’s property in violation of due process. (Kaiser Aetna v United States, 444 US 164; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Midwest Video Corp. v Federal Communications Commn., 571 F2d 1025, 440 US 689; New York Tel. Co. v Town of N. Hempstead, 41 NY2d 691; Munn v Illinois, 94 US 113; Matter of Utica Tr. Corp. v Feinberg, 277 App Div 464; Interstate Commerce Commn. v Oregon-Washington R. R. Co., 288 US 14; People v Adirondack Ry. Co., 160 NY 225, 176 US 335; Pocantico Water Works Co. v Bird, 130 NY 249.)

      Lawrence G. Malone and Robert A. Simpson, for respondent.
    I. The company’s franchise agreements do not restrict its distribution responsibilities to company-owned gas, and, in any event, franchise agreements cannot be read to limit the State’s power to regulate utilities. (Armour Packing Co. v Edison Elec. Illuminating Co., 115 App Div 51; Puget Sound Traction Co. v Reynolds, 244 US 574; Matter of Rochester Gas & Elec. Corp. v Public Serv. Commn., 71 AD2d 185, 49 NY2d 1014, 51 NY2d 703; American Rapid Tel. Co. v Hess, 125 NY 641; Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424; Bell Tel. v Federal Communications Commn., 503 F2d 1250; American Tel. & Tel. Co. v Federal Communications Commn., 422 US 1026; United Gas Pipeline v FPC, 385 US 83; New England Power Co. v Federal Power Commn., 349 F2d 258; MCI Telecommunications Corp. v Federal Communications Commn., 561 F2d 365, 434 US 1040.) II. Section 66-d (2) does not result in a "taking” of RG&E’s distribution facilities. (American Paper Inst. v American Elec. Power, 461 US 402; MCI Telecommunications Corp. v Federal Communications Commn., 561 F2d 365, 434 US 1040; Matter of Utica Tr. Corp. v Feinberg, 277 App Div 464; PruneYard Shopping Center v Robins, 447 US 74; Troy Ltd. v Renna, 727 F2d 287; Keystone Bituminous Coal Assn. v DeBenedictis, 581 F Supp 511; Rochester Gas & Elec. Corp. v Public Serv. Commn., 66 AD2d 509, 49 NY2d 930; Matter of Rochester Gas & Elec. Corp. v Public Serv. Commn., 71 AD2d 185, 49 NY2d 1014.)
   OPINION OF THE COURT

Simons, J.

Plaintiff Rochester Gas & Electric Corporation (RG&E) challenges the constitutionality of Public Service Law § 66-d (2) (L 1984, ch 519, § 2, as amended by L 1985, ch 790, § 2), as applied to it by Opinion No. 85-6 of defendant Public Service Commission (PSC). The statute authorizes the PSC to require certain utilities to transport nonowned natural gas through their pipelines if the utility has excess capacity, receives reasonable compensation for doing so and if transportation of the nonowned gas will not burden the utility or its ratepayers or impair the over-all quality of service to customers. Plaintiff is a utility selling gas to customers in Rochester and seven surrounding counties and. it contends that the statute and implementing order contained in Opinion No. 85-6 violate its due process rights and effect an unconstitutional taking of its property (see, US Const 5th and 14th Amends; NY Const, art I, §§ 6, 7). The courts below upheld the statute and the opinion finding that they were a valid exercise of the State’s police power and did not result in an impermissible taking of plaintiff’s property. The appeal is before us as of right (see, CPLR 5601 [b] [1]) and we now affirm.

I

Section 66-d (2) was designed to stimulate production of natural gas indigenous to New York State thereby benefiting local producers, diversifying the State’s energy supplies and increasing competition within the natural gas industry by providing an economical means for local gas to be marketed (see generally, Public Service Law § 66-d, Legislative Findings, L 1984, ch 519, McKinney’s Cons Laws of NY, Book 47, 1988 Cum Ann Pocket Part, at 101-102; Mem of State Executive Department, 1984 McKinney’s Session Laws of NY, at 3336-3337). It was a legislative response to the Commission’s finding that significant quantities of New York natural gas, which is less expensive than gas transported from other areas of the country, remained untapped because local producers were unable to transport their fuel to potential customers. Local producers had little bargaining power compared to the large interstate suppliers and these out-of-State suppliers used their leverage to negotiate long-term "take-or-pay” agreements with many utilities requiring that the utilities pay for fixed quantities of gas whether or not they take the bargained-for amount. As a result, the utilities tended to rely exclusively on their interstate suppliers in order to avoid paying for gas never received (id.; see generally, Roland, Take or Pay Provisions: Major Problems for the Natural Gas Industry, 18 St Mary’s LJ 251 [1986]). Local producers, denied the means of transportation, were "shutin”, unable to sell their gas to the utilities or deliver it to customers.

To ameliorate this problem, the Legislature amended the Public Service Law to authorize the Public Service Commission to require gas utilities having excess capacity to transport gas directly from local producers to consumers throughout the utility’s pipelines. In essence, the legislation allowed consumers to purchase gas still in the ground and compelled utilities to transport it to them. Unlike the typical transaction — in which the utility bought gas from the producer, and then transported and sold it to the customer — the new legislation required the utility to transport to the consumer gas it already owned if the consumer paid for the use of the utility’s pipelines.

The Legislature first attempted to open markets for local gas producers in 1983 when it enacted Public Service Law § 66 (12-b) (b) (L 1983, ch 626). This subdivision authorized utilities, with PSC approval, to contract with consumers to transport from producers gas already purchased by the customer. However, this enactment only opened markets to local producers if a utility was willing to enter into a transportation contract with its customer. Seeking to provide further benefits to local producers, the Commission considered mandating that utilities transport customer-owned gas and solicited comments on the issue. In 1984, while those proceedings were pending, the Legislature enacted Public Service Law § 66-d (2) authorizing the PSC to order gas utilities to transport New York customer-owned gas under stated circumstances. As originally enacted, Public Service Law § 66-d (2) only authorized participation by consumers who used large quantities of gas (at least 25,000 decatherms yearly). The statute was amended in 1985, however, to require utilities to ship customer-owned gas to all consumers, regardless of the customer’s yearly gas consumption. Public Service Commission Opinion No. 85-6, also challenged by plaintiff, was adopted pursuant to section 66-d (2)* and ordered plaintiff to file a tariff establishing rates for transportation of nonowned gas.

Plaintiff thereafter commenced this action contending that Public Service Law § 66-d (2) and PSC Opinion No. 85-6 are unconstitutional because they: (1) substantially interfere with plaintiff’s right to conduct its business, in violation of its substantive due process rights; and (2) force plaintiff to provide public access to its property, resulting in a taking without "just compensation”. The substance of its claim, under both theories, is that the statute and the opinion require it to engage in a business it is not authorized to engage in and to use its property in a way it has neither agreed nor desires to use it.

II

Analysis starts by recognizing that legislative enactments are presumed valid and that one who challenges a statute bears the burden of proving the legislation unconstitutional beyond a reasonable doubt (see, 41 Kew Gardens Rd. Assocs. v Tyburski, 70 NY2d 325, 333; Trump v Chu, 65 NY2d 20, 25, appeal dismissed 474 US 915; Maresca v Cuomo, 64 NY2d 242, 250-251, appeal dismissed 474 US 802). Additionally, this action involves economic legislation and modern substantive due process principles require that the judiciary give great deference to the Legislature in that area (Exxon Corp. v Governor of Md., 437 US 117, 124, reh denied sub nom. Shell Oil Co. v Governor of Md., 439 US 884; Ferguson v Skrupa, 372 US 726, 731; see also, Montgomery v Daniels, 38 NY2d 41, 67). When reviewing such legislation the courts may not concern themselves with its ultimate wisdom; the legislation must be sustained if it has any reasonable relation to the State’s legitimate interests (see, Exxon Corp. v Governor of Md., supra).

A

Plaintiff claims first that section 66-d (2) has fundamentally changed the nature of its business and compels it to use its distribution system to operate in ways contrary to the provisions of the Transportation Corporations Law, under which it was incorporated, and its franchises. It contends that RG&E was chartered as a "gas corporation” (see, Transportation Corporations Law § 10), not as a "pipeline corporation” (see, Transportation Corporations Law § 80) and it maintains that as such it is only obliged to transport and sell its own gas. It asserts that only pipeline corporations are obliged to carry gas on behalf of third parties and that the statute by imposing duties upon it not reflected in its certificate of incorporation, forces it to provide services it is not authorized to perform.

The short answer, of course, is that the Legislature has defined the powers of corporations and it can redefine them by statutory amendment to promote the public interest. But more to the point, plaintiff is not being compelled to offer service greater or different than authorized by its original charter. Gas corporations are charged with the duty of supplying gas for public use (see, Transportation Corporations Law § 10; see also, Public Service Law § 65) and none of the statutes regulating plaintiff indicate that duty is to be fulfilled only by selling its own gas (see, e.g., Public Service Law § 2 [10], [11]; §§ 64, 65). The transportation of customer-owned gas also results in gas being supplied to members of the public and is thus consistent with the general duties imposed upon gas corporations. The statute may force plaintiff to do something which, as a matter of form, differs from what it has customarily done because it no longer has title to all the gas in its pipelines. The substance of the transactions is the same, however; the company provides gas to the community, something it has always done and is obliged to do.

Plaintiff also contends that its franchises limit it to transporting its own gas. It appears, however, that of plaintiff’s more than 60 franchises only one arguably provides that plaintiff shall deliver company-owned gas. But whether the franchises specify the gas is to be owned by the franchisee or not, their terms may not be used to limit the State’s lawful exercise of its police powers (see, Puget Sound Traction Co. v Reynolds, 244 US 574, 578-579; American Rapid Tel. Co. v Hess, 125 NY 641; cf., Matter of Rochester Gas & Elec. Corp. v Public Serv. Commn., 71 AD2d 185, 190, appeal dismissed 49 NY2d 1014). They are no more than commitments by various local governments to plaintiff to use public property in exchange for supplying a public service and the State may revoke or modify them to impose new service obligations on the franchisee to promote the public good (American Rapid Tel. Co. v Hess, supra, at 645).

Accordingly, there is nothing in the Transportation Corporations Law or plaintiff’s franchises which inhibit defendant from implementing the statute or enforcing its order. To the extent Public Service Law § 66-d (2) may compel RG&E to provide a service it did not anticipate and does not want to provide, the statute must be examined under traditional due process principles.

Under our form of government the use of property and the making of contracts are normally matters of private, not public, concern. Neither property rights nor contract rights are absolute, however, for government could not exist if a citizen had the unfettered right to use property to the detriment of others, or exercise his freedom of contract to work them harm. Thus, equally fundamental with the private right is the right of the public to regulate it in the common interest through the exercise of a police power to promote the general welfare. The Federal and State Due Process Clauses condition government regulation by requiring that it not be unreasonable, arbitrary or capricious, and that the means selected have a reasonable relation to the object sought to be attained.

More particularly, the Constitution does not guarantee citizens the unrestricted privilege of conducting or engaging in business as they please. The State may, in the reasonable exercise of its police power, condition or restrict private businesses or prohibit the operation of some businesses entirely to further its policies (Nebbia v New York, 291 US 502, 527-528; see also, New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151, remittitur amended 10 NY2d 814). Plaintiff, moreover, is not an ordinary corporation — it is a public utility. It operates pursuant to government license and with the advantage of municipally awarded franchises and it has thus become "clothed with a public interest” (see, Munn v Illinois, 94 US 113, 126; People ex rel. Delaware & Hudson Co. v Stevens, 197 NY 1, 9; see also, Wolff Co. v Industrial Ct., 262 US 522, 535-536). As a consequence, it is "under an obligation to discharge duties which affect the community at large [and] the legislature may [amend such duties] in furtherance of the public interest” (New York Cent. & Hudson Riv. R. R. Co. v Williams, 199 NY 108, 117, affd sub nom. Erie R. R. Co. v Williams, 233 US 685; see also, American Rapid Tel. Co. v Hess, 125 NY 641, 645, supra).

Public Service Law § 66-d (2) does no more than compel the utility to provide access to its pipelines to New York State gas producers on occasions when it will not be burdensome to the utility or its remaining customers and upon payment of reasonable compensation. It is a reasonable regulation consistent with the public interest in developing the State’s resources, furthering competition and controlling the cost of natural gas in the retail market (cf., Federal Energy Regulatory Commn. v Mississippi, 456 US 742; Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424, 431). Accordingly, the Legislature acted well within constitutional limitations when it modified the manner in which plaintiff was required to satisfy its public obligations declaring that the public must be afforded reasonable access to the utility’s pipeline network in the manner specified (cf., American Paper Inst. v American Elec. Power, 461 US 402 [sustaining Federal legislative and agency action requiring interconnection between electric utilities and private cogeneration facilities to encourage power production]; accord, Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424, appeal dismissed 470 US 1075, supra; Kansas City Power & Light Co. v State Corp. Commn., 238 Kan 842, 715 P2d 19).

B

RG&E supports its claim that Public Service Law § 66-d (2) forces it to operate its business in ways it does not choose to operate by contending that the statute changes its status from a private carrier to a common carrier. It cites in support of its position a line of United States Supreme Court cases (see, Smith v Cahoon, 283 US 553; Frost Trucking Co. v Railroad Commn., 271 US 583; Michigan Commn. v Duke, 266 US 570; and Producers Transp. Co. v Railroad Commn., 251 US 228), and a decision from this court relying upon those Supreme Court authorities (Matter of Motor Haulage Co. v Maltbie, 293 NY 338).

These carrier cases are no longer controlling. They were decided during the Lochner era (see, Lochner v New York, 198 US 45) in which the Supreme Court used the substantive due process doctrine to void economic or social legislation aimed at private companies, deemed at the time not to be affected with a public interest, which the court believed unreasonably infringed upon the liberty to contract (2 Rotunda, Nowak and Young, Constitutional Law, Substance and Procedure § 15.3, at 41 [1986]; see, e.g., Lochner v New York, supra [invalidating legislation limiting the number of hours employees could work per week]; see also, Tribe, American Constitutional Law § 8-4, at 570-574 [2d ed 1988]). That theory of substantive due process was "relegated to obscurity in Nebbia v New York (291 US 502)” (Montgomery v Daniels, 38 NY2d 41, 67, supra; see also, West Coast Hotel Co. v Parrish, 300 US 379; 2 Rotunda, Nowak and Young, op. cit., § 15.3, at 48-49; Tribe, op. cit., § 8-7, at 581-586). After Nebbia, even private corporations may be deemed affected with a public interest and subjected to reasonable regulation under the State’s police power.

Thus, plaintiff’s status as public or private carrier is largely irrelevant under modern substantive due process rules. The inquiry is not whether the statute alters plaintiff’s business or interferes with its management prerogatives — all economic regulations have that effect, the dispositive question is whether the governmental exercise of its police powers is reasonable. We find that it is.

Nevertheless, even under the rationale of plaintiff’s authorities — including this court’s decision in Matter of Motor Haulage Co. v Maltbie (293 NY 338, supra) — section 66-d (2) would be valid because those cases involved private corporations and, in deciding them, the courts emphasized that public duties should only be borne by corporations affected with a public interest. Plaintiff is a public utility affected with such an interest and under either old or current notions of substantive due process public duties manifestly can be imposed on it.

m

Plaintiff further contends that Public Service Law § 66-d (2) effects an unconstitutional taking of its property without just compensation (US Const 5th and 14th Amends; NY Const, art I, § 7; see also, 2 Rotunda, Nowak and Young, Constitutional Law, Substance and Procedure § 15.6, at 76-77). While it is clear that government regulation may permissibly effect economic interests or expectations, if the regulation goes too far the government’s action will be treated as a public taking for which just compensation is required (see generally, Pennsylvania Coal Co. v Mahon, 260 US 393, 415; de St. Aubin v Flacke, 68 NY2d 66, 76-77; French Investing Co. v City of New York, 39 NY2d 587, 593-595, appeal dismissed and cert denied 429 US 990). Governmental action short of acquisition or occupation will result in a taking if the effects of the action are so complete as to deprive the owner of all or most of its interest in the property (United States v General Motors Corp., 323 US 373, 378).

The determination of whether the government’s action constitutes a taking inevitably requires an ad hoc factual inquiry but the Supreme Court formalized some factors which may be considered to resolve that question in Connolly v Pension Benefit Guar. Corp. (475 US 211). It found three of "particular significance”: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action (id., at 225; see also, Penn Cent. Transp. Co. v New York City, 438 US 104, 123-128, reh denied 439 US 883). Applying those considerations, we find that Public Service Law § 66-d (2) and PSC Opinion No. 85-6 do not result in a "taking” of plaintiff’s property.

First, there appears to be little economic impact on plaintiff. The statute requires a utility to transport nonowned gas only when it has excess capacity, the customer pays for the service and if access does not overly burden the utility or the utility’s customers, by requiring higher rates, for example.

Next, it does not appear that the State’s action had any adverse affect on plaintiff’s investment-backed expectations (see, Ruckelshaus v Monsanto Co., 467 US 986, 1005-1014). Indeed, plaintiff has not attempted to prove that it would. Plaintiff undertook its business and developed its plant with the knowledge that it was a public utility. Thus, its general investment expectations included the knowledge that it was subject to extensive regulation. The current statutory scheme cannot have frustrated its reasonable expectations. Plaintiff continues its business as before subject only to transporting obligations to third parties for a fee if its pipelines are available.

Third, the government’s action involves only minimal, intermittent access to plaintiff’s pipelines, under circumstances which will not interfere with plaintiff’s regular business. No permanent appropriation of plaintiff’s property rights is involved (cf., Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Kaiser Aetna v United States, 444 US 164).

Conceivably, plaintiff’s sales may decline if consumers are enabled to buy their own gas from producers. Plaintiff has no vested right to sell gas to specific customers, however, and in any event it will receive reasonable compensation, in the form of transportation charges, from those to whom it formerly sold fuel. Moreover, as a regulated utility, it is protected by its continuing right to charge rates which permit a reasonable return on investment (see, Public Service Law § 72; Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 69 NY2d 365, 369). Thus, the interference with plaintiff’s property is minimal. As Justice Holmes stated when faced with a similar issue in The Pipe Line Cases (234 US 548, 561): "the statute practically means no more than they must give up on requiring a sale to themselves before carrying the [gas] that they now receive. The whole case is that [plaintiff] if [it] carr[ies] must do it in a way [it does] not like. There is no taking” (see also, Kansas City Power & Light Co. v State Corp. Commn., 238 Kan 842, 715 P2d 19, supra [finding legislation mandating that electric utilities interconnect their facilities with those of private cogenerators did not effect a taking]).

Finally, plaintiff contends its property has been taken because even though it has not been deprived of its use plaintiff has been forced to undertake a new venture. The argument essentially restates contentions raised in support of plaintiff’s substantive due process claim but in this branch of its appeal plaintiff relies upon Matter of Utica Tr. Corp. v Feinberg (277 App Div 464). In Utica Tr., the court recognized the general rule that governmental regulation forcing a carrier to extend its operation into previously unserviced area, beyond its commitment, is a taking. Nevertheless, the court upheld a Commission order which required the carrier to extend its bus service within its service area, finding that requiring a new service under those circumstances did not result in a taking (see also, Matter of Rochester Gas & Elec. Corp. v Public Serv. Commn., 71 AD2d 185, 190, supra). Our decision here is consistent with that holding. Public Service Law § 66-d (2) and PSC Opinion No. 85-6 provide that in some cases, instead of purchasing gas, transporting it and then selling it, the utility will only transport the fuel. As in Matter of Utica Tr., the company is not being forced to provide services beyond its original commitment. It is being required to make some of the services it has always provided, transportation of gas, available to others.

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

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

Order affirmed, with costs.

      . Public Service Law § 66 (12-b) (b) provides: "The commission may also authorize utility corporations to contract with existing or prospective industrial and commercial customers to wheel or deliver electricity or gas purchased directly by such customers, provided that the commission finds that such arrangements are in the overall best interest of the rate payers of the corporation, and that the rates and fees for the services provided adequately compensate the corporation for the use of its facilities.”

      . Public Service Law § 66-d (2) presently reads as follows: "The commission, upon its own initiative or upon application by a natural gas producer or a consumer of natural gas in any year and after notice and hearing shall, upon such terms and subject to such conditions as the commission considers just and reasonable, have the authority, to order any gas corporation to transport or contract with others to transport gas under contract for sale by such producer or owned by such consumer provided that, the commission finds that the gas corporation has available capacity, that no undue burden shall be placed upon the gas corporation or its ratepayers and that the ability of the gas corporation to render adequate service to its customers is not impaired.”


source: Caselaw Access Project

author: Chief Judge Wachtler. Bellacosa, J.

license: Public Domain

text:
    Anheuser-Busch, Inc., Respondent, v Robert Abrams, as Attorney-General of the State of New York, Appellant. In the Matter of Subpoenas Duces Tecum Served by the Attorney-General of the State of New York, Upon the New York State Beer Wholesalers Association, Inc., et al., Respondents; Attorney-General of the State of New York, Appellant. In the Matter of G. Heileman Brewing Company, Inc., Respondent, v Robert Abrams, as Attorney-General of the State of New York, Appellant. In the Matter of Miller Brewing Company, Respondent, v Robert Abrams, as Attorney-General of the State of New York, Appellant. In the Matter of Stroh Brewery Company, Respondent, v Robert Abrams, as Attorney-General of the State of New York, Appellant. In the Matter of Forbee Bros. Corporation et al., Respondents, v Robert Abrams, as Attorney-General of the State of New York, Appellant.
    Argued January 6, 1988;
    decided February 11, 1988

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Alan Pfeffer, O. Peter Sherwood, Lloyd Constantine, Katherine L. Frank, Elizabeth M. O’Neill, Richard M. Weinberg and Alice Mclnemey of counsel), for appellant.
    I. Exclusive territorial vertical restraints are covered by the Donnelly Act. (Columbia Gas v New York State Elec. & Gas. Corp., 28 NY2d 117; State of New York v Glen & Mohawk Milk Assn., 61 NY2d 705; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Continental T. V. v GTE Sylvania, 433 US 36; State of New York v Mobil Oil Corp., 38 NY2d 460; People v Roth, 52 NY2d 440; LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583; Lafayette v Louisiana Power & Light Co., 435 US 389; Big Top Stores v Ardsley Toy Shoppe, 64 Misc 2d 894, 36 AD2d 582;, Alexander’s Dept. Stores v Ohrbach’s, Inc., 266 App Div 535, 291 NY 707.) II. The Attorney-General is authorized to investigate all restraints of competition. (Sanders v Winship, 57 NY2d 391; Matter of Smathers, 309 NY 487; Eiberger v Sony Corp. of Am., 622 F2d 1068; State of New York v Mobil Oil Corp., 38 NY2d 460; Matter of Freeman, 34 NY2d 1; People v Hobson, 39 NY2d 479; Big Top Stores v Ardsley Toy Shoppe, 64 Misc 2d 894, 36 AD2d 582; Columbia Gas v New York State Elec. & Gas Corp., 28 NY2d 117; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88.)

      Thomas H. Milch, Jerome I. Chapman, Wayne C. Holcombe, David Rees Davies, Adeeb Fadil, Terrence Sheehy, Peter Moll, Roxann Henry, William Pelster, David Elkind, David Beck-with, Michael Fischer, Gary Hoppe, Eugene D’Ablemont, Robert Getman, Robert Crotty, Ernest Gellhorn, Adrian WagerZito, Hugh Latimer, Robert Skitol, Richard Nash, Henry B. Gutman, Douglas Richards, Richard C. Stein and Matthew

      Feigenbaum for respondents.
    I. The Attorney-General lacks authority to investigate vertical territorial arrangements because such restraints are legal under New York law. (Matter of Kates v Lefkowitz, 28 Misc 2d 210; Stemmerman v Kelly, 150 App Div 735, 220 NY 756; Dawn to Dusk v Brunckhorst Co., 23 AD2d 780; Revlon Prods. Corp. v Bernstein, 204 Misc 80, 285 App Div 1139; People v Roth, 52 NY2d 440; Marsich v Eastman Kodak Co., 244 App Div 295, 269 NY 621; Port Chester Wine & Liq. Shop v Miller Bros. Fruiterers, 253 App Div 188, 281 NY 101; Matter of Jackson, 57 Misc 1; Bradford v New York Times Co., 501 F2d 51; Matter of Davies, 168 NY 89.) II. The per se legality of vertical exclusive territories requires that the subpoenas be quashed. (Matter of Kates v Lefkowitz, 28 Misc 2d 210.) III. The Attorney-General’s Federal lawsuit vitiates any legitimate purpose the subpoenas might have had. (People v Anaconda Wire & Cable Co., 45 Misc 2d 151, 23 AD2d 823, 16 NY2d 871; Dellwood Foods v Abrams, 109 Misc 2d 263.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The petitioners — four brewers, several beer wholesalers and a beer wholesalers’ trade association — brought these proceedings to quash subpoenas duces tecum and interrogatories served upon them by the Attorney-General pursuant to an investigation into marketing practices in the beer industry which the Attorney-General alleges may violate the State’s antitrust laws. The central issue posed by this appeal, here by leave of the Appellate Division, is whether that court properly granted the applications on the ground that the focus of the investigation is an activity which is per se legal under State law and therefore beyond the scope of the Attorney-General’s investigatory powers.

We hold that General Business Law § 343 authorizes the Attorney-General to investigate the practice in question and that it was error, therefore, to quash the subpoenas and interrogatories.

I.

The subpoenas and interrogatories now challenged were issued to the petitioners beginning in May 1985 as part of an investigation by the Attorney-General into the pervasive use in the beer industry of exclusive territorial distributorships. The Attorney-General alleges — and petitioners do not dispute for purposes of these proceedings — that since 1982 brewers and wholesaler distributors have entered into agreements establishing exclusive territorial rights to sell each brewer’s products to retail outlets. According to the Attorney-General, under this scheme, the brewer agrees to sell its products to only one designated wholesaler in a given territory and that wholesaler, in turn, agrees not to sell the brewer’s products outside that territory or to anyone inside the territory who would resell the products elsewhere. The aim of these agreements, allegedly, is to eliminate intrabrand competition by "transshippers”, independent wholesalers who, prior to the advent of these agreements, could buy beer from a franchised wholesaler in one territory and sell it in another territory, in competition with another franchised wholesaler.

The parties agree that, to the extent that this arrangement results in a restraint of trade, it is a "vertical” restraint — that is, one imposed by an agreement between noncompetitors who occupy different levels in the distribution chain — as opposed to a "horizontal” restraint, which results from an agreement among competitors at the same level of distribution. The Attorney-General contends that, although such vertical restraints are not per se illegal under New York’s antitrust law (the Donnelly Act; General Business Law § 340 et seq.), they may be found to be illegal if, under all the circumstances, they impose an unreasonable restraint on competition. Petitioners concede that the "rule of reason” analysis urged by the Attorney-General would be employed to determine if the practice violates Federal antitrust law (see, e.g., Continental T. V. v GTE Sylvania, 433 US 36), but they argue that the courts of this State have ruled that such vertical restraints are per se legal under the Donnelly Act. Accordingly, they conclude, the Attorney-General lacks authority to conduct an investigation designed to facilitate a rule of reason analysis of the brewing industry practice.

II.

An application to quash a subpoena should be granted "[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious” (Matter of Edge Ho Holding Corp., 256 NY 374, 382) or where the information sought is " 'utterly irrelevant to any proper inquiry’ ” (Matter of La Belle Creole Intl., S. A. v Attorney-General of State of N. Y, 10 NY2d 192, 196, quoting Matter of Dairymen’s League Coop. Assn. v Murtagh, 274 App Div 591, 595, affd 299 NY 634). In defending his inquiry, the Attorney-General enjoys a presumption that he is acting in good faith (Matter of Ryan v Lefkowitz, 26 AD2d 604, affd 18 NY2d 977) and must show only that the materials sought bear "a reasonable relation to the subject matter under investigation and to the public purpose to be achieved” (Carlisle v Bennett, 268 NY 212, 217; see also, Virag v Hynes, 54 NY2d 437, 442; Matter of Goldin v Greenberg, 49 NY2d 566, 572; Matter of La Belle Creole Intl., S. A. v Attorney-General of State of N. Y, supra, at 196).

Thus, the precise question presented by these proceedings is brought into focus. The question is not whether all vertical restraints of this type should, in the context of these proceedings, be declared legal per se or, on the other hand, subject to a rule of reason analysis. Instead, the question is whether the Attorney-General has authority under the Donnelly Act to issue the subpoenas and interrogatories challenged here, a question which must be answered in the affirmative unless the legality of the brewers’ marketing practice is so well established, either by the plain language of the statute or by existing judicial interpretation, as to be free from doubt. If the legality of the brewing industry’s vertical restraints is arguable, then the subpoenas issued pursuant to the Attorney-General’s broad powers to investigate possible violations of the Donnelly Act (see, General Business Law § 343) must be sustained (see, Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597, 610-611).

Petitioners effectively concede as much, because the focus of their argument is not that we should announce a rule of per se legality, but rather that such a rule has already been established by "seven decades of unanimous precedent” and that the Legislature has acquiesced in such an interpretation of the Donnelly Act by failing to amend the statute to overrule those decisions. We conclude, however, that the cases cited by petitioners do not conclusively establish, either singly or in combination, a rule of per se legality for vertical territorial arrangements. Nor does the statutory language foreclose the Attorney-General’s position that such arrangements, if shown to result in an unreasonable restraint of trade under the circumstances, are prohibited.

III.

The Donnelly Act declares, among other things, that "[e]very contract, agreement, arrangement or combination whereby * * * [competition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service in this state is or may be restrained [is] against public policy, illegal and void” (General Business Law § 340 [1]). This language is clearly broad enough, on its face, to encompass the vertical restraints in issue. There is no dispute for present purposes that the target of the Attorney-General’s investigation — exclusive territorial distributorships — restricts intrabrand competition in the beer industry.

We recognize that neither the Donnelly Act nor the Sherman Act, after which it was modeled, has been interpreted as prohibiting every agreement that has the effect of restraining trade, no matter how minimal. Instead, as construed by State and Federal courts, the antitrust laws prohibit only "unreasonable” restraints on trade (see, Northern Pac. Ry. Co. v United States, 356 US 1, 5; Atkin v Union Processing Corp., 90 AD2d 332, affd 59 NY2d 919, cert denied 465 US 1038). Even in light of this general judicial gloss, however, the statutory language easily accommodates the Attorney-General’s position that petitioners’ practice may be prohibited if it can be shown to be unreasonable.

Petitioners’ efforts to extract a rule of per se legality from the case law dealing with vertical territorial arrangements are unavailing for several reasons. First, the issue of per se legality of all vertical territorial arrangements was not presented in the cases cited by petitioners. In Dawn to Dusk v Brunckhorst Co. (23 AD2d 780 [2d Dept]), Stemmerman v Kelly (150 App Div 735 [1st Dept], judgment after remand affd no opn 163 App Div 892, affd no opn 220 NY 756), and Revlon Prods. Corp. v Bernstein (204 Misc 80, affd no opn 285 App Div 1139 [1st Dept]), the issue before the courts was the legality, under specific circumstances, of specific arrangements. The courts decided no more than that those arrangements did not constitute unreasonable restraints of trade.

For example, in Stemmerman (supra), the Appellate Division held that the trial court had erred in declaring the contract void without allowing the plaintiff to introduce proof tending to show the limited impact of the territorial restriction on the asphalt market — evidence relevant to a rule of reason analysis. Thus, the decision did not establish a rule of per se legality; it simply rejected the trial court’s rule of per se illegality. The Revlon Prods, (supra) decision is open to a similar interpretation (see, Robinson, Restraints on Trade and the Orderly Marketing of Goods, 45 Cornell LQ 254, 261, n 32; 263, n 40) and, in any event, was colored by the defendant’s concession that the restriction in question did not restrain trade (see, 204 Misc, at 81, supra).

In addition, this court, the final arbiter of questions of State law, did not issue or pass directly upon any of the decisions cited for the proposition advanced by petitioners. Nor do these isolated decisions from two judicial departments represent the kind of unanimous judgment of the intermediate appellate courts deserving of similar weight (cf., Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151). Thus, even if the cited decisions unequivocally supported petitioners’ contention, we would not be persuaded that legislative inaction should be interpreted as acquiescence (see, Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, 9-10).

Finally, such a tenuous inference is even less compelling in this case, because it would result in an interpretation of the Donnelly Act at odds with the settled interpretation of its Federal counterpart. Although we do not move in lockstep with the Federal courts in our interpretation of antitrust law (see, People v Roth, 52 NY2d 440), the Donnelly Act — often called a "Little Sherman Act” — should generally be construed in light of Federal precedent and given a different interpretation only where State policy, differences in the statutory language or the legislative history justify such a result (see, State of New York v Mobil Oil Corp., 38 NY2d 460, 463; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 626; Givens, Practice Commentaries, McKinney’s Cons Laws of NY, Book 19, General Business Law § 340, 1988 Cum Ann Pocket Part, at 182). Thus, we should not be eager to find that a contrary State rule has been established by a combination of equivocal pronouncements from the lower courts and legislative inaction in response to such decisions.

IV.

We conclude, therefore, that no rule of per se legality must inexorably be gleaned from the case law or the statutory language. In the absence of such a rule, we hold that the Attorney-General is authorized to conduct an investigation to test the legality of petitioners’ practices. In addition, we find no merit to petitioners’ alternative argument that the subpoenas must be quashed because the Attorney-General has commenced a civil action in Federal court, charging them with violations of the Sherman and Donnelly Acts. Section 343 specifically provides that the Attorney-General’s subpoena power does not abate by reason of any action or proceeding brought by him (see, Matter of Grandview Dairy v Lefkowitz, 76 AD2d 776, 777; State of New York v Mobil Oil Corp., 40 AD2d 369, affd 33 NY2d 627).

Accordingly, the order of the Appellate Division should be reversed and the judgments of Supreme Court reinstated.

Bellacosa, J.

(dissenting). I vote to affirm. The investigatory and enforcement powers of the Attorney-General under the Donnelly Act should not be expanded by judicial construction to include vertical restraints, as that is a policy choice and authorization uniquely reserved to the legislative branch (compare, Boreali v Axelrod, 71 NY2d 1).

The Donnelly Act (General Business Law § 340 et seq.) does not expressly declare illegal or prohibit vertical restraint agreements establishing exclusive territorial distributorships between noncompetitors in different positions in the distribution chain, nor does it vest authority in the Attorney-General to investigate and prosecute such commercial arrangements. The courts of this State have never, up to now, found such a prohibition or power even by implication in the provisions of the act. Indeed, the opposite has prevailed over many years. Moreover, the Legislature has evidenced its acquiescence in these decisions by repeatedly refusing to adopt legislation sought by the Attorney-General restricting vertical restraints and granting that office such enforcement powers. Most pertinently, the Legislature has even specifically refused to adopt legislation prohibiting vertical distribution agreements between brewers and beer wholesalers.

The determination of the issue as to whether the Attorney-General has the authority to issue the subpoenas and interrogatories which respondents seek to quash necessarily hinges upon whether vertical restraint agreements creating exclusive territorial distributorships are prohibited or illegal under the Donnelly Act, not whether the legality of such arrangements is "arguable”, as suggested by the majority. Such a tenuous predicate for the issuance of formal, duplicative and burdensome investigatory process by the chief law enforcement officer of the State should not be countenanced by this court.

General Business Law § 340, "[t]he determinative provision of the Donnelly Act” (State of New York v Mobil Oil Corp., 38 NY2d 460, 462), provides that "[ejvery contract, agreement, arrangement or combination whereby * * * [a] monopoly * * * is or may be established or maintained, or whereby [cjompetition * * * is or may be restrained * * * is hereby declared to be against public policy, illegal, and void”. The act authorizes the Attorney-General to bring actions "to restrain and prevent the doing in this state of any act herein declared to be illegal” or prohibited (General Business Law § 342). In the performance of these enforcement responsibilities, the Attorney-General is empowered to investigate any person or business enterprise who is or is about to be engaged in any act "by this article prohibited or declared to be illegal”; who "assisted or participated” in any such act; or "whenever he believes it to be in the public interest that an investigation be made” (General Business Law § 343). The investigation provisions of section 343 do not create new categories of illegal or prohibited acts, but merely provide when and how an investigation should be effectuated.

In Marsich v Eastman Kodak Co. (244 App Div 295, affd 269 NY 621), this court affirmed a decision upholding the right of a producer and its dealers to refuse to sell their product to one who violated a price scale established by the producer. The court distinguished that situation from one where the agreement was between several manufacturers or producers which would be covered under General Business Law § 340. It stated that "[t]he soundness of the economic theories embodied in such a statute is a legislative question, and the courts may not obtrude their economic theories into a statute under the guise of interpreting it” (id., at 296 [emphasis supplied]). Similarly, in Stemmerman v Kelly (150 App Div 735, affd 220 NY 756), we affirmed a decision upholding a vertical restraint agreement establishing a sole source distributorship within an exclusive territory. The court there noted that "there may lawfully be a partial restraint of trade, sufficient to protect the interests of a party and not so great as to interfere with the interests of the public” (id., at 738; see also, Alexander’s Dept. Stores v Ohrbach’s, Inc., 266 App Div 535, appeal dismissed 291 NY 707).

The most direct and recent pronouncement on the legal propriety under State law of vertical restraint agreements concerning exclusive territorial distributorships arose in Dawn to Dusk v Brunckhorst Co. (23 AD2d 780). The manufacturer’s exclusive distributor and the exclusive subdistributor within a designated area refused to sell to the plaintiff because the latter refused to deal solely through the subdistributor. Relying upon General Business Law § 340, the court noted that "[n]ot every agreement or combination which is in restraint of trade is proscribed by the statute” (id., at 781), and specifically held "[a]n agreement or arrangement among parties in a vertical relationship, which restricts the territory within which the buyer, here the defendant jobber Vaccaro, may resell the goods in question does not violate section 340 of the General Business Law” (id., at 781 [citations omitted]).

Against the backdrop and long history of the statute and cases interpreting it, the court now discerns an implied power for the Attorney-General to investigate and litigate against vertical restraints. Recently, we rejected just such an analysis seeking to create by implication a private action under the Martin Act (see, CPC Intl. v McKesson Corp., 70 NY2d 268, 276-277). In direct contradiction of our past opinions on the Donnelly Act that a "ruling of a Federal court interpreting a Federal statute has no direct bearing upon a State court’s analysis of an analogous provision enacted by the State Legislature” (People v Roth, 52 NY2d 440, 447; see also, State of New York v Mobil Oil Corp., 38 NY2d 460, 463, supra; and Marsich v Eastman Kodak Co., 244 App Div 295, affd 269 NY 621, supra), the majority relies upon Federal court precedents interpreting the Sherman Antitrust Act and borrows their "rule of reason” analysis from that quite different and explicit statute. Surely, had the New York State Legislature deemed that our State court "decisions gave to the statute [Donnelly Act] a meaning or scope different from that [originally] intended, it would have amended the statute as to give it the effect intended”, especially since it was specifically importuned to do so (Marsich v Eastman Kodak Co., 244 App Div 295, 297, affd 269 NY 621, supra). In fact, the Attorney-General has made the effort to align the requirements of the Donnelly Act with those of the Sherman Antitrust Act and "has sought to obtain procedural tools comparable to those available under federal law” because of "the absence of a state per se rule and * * * vertical restraints” (Givens, Practice Commentaries, McKinney’s Cons Laws of NY, Book 19, General Business Law § 340, 1988 Cum Ann Pocket Part, at 187). He is even in this very matter litigating the same subject under Federal law in the Federal courts.

At least seven recent bills would, in varying degrees, have restructured the Donnelly Act (see, Bill No. S. 8399 [introduced 1986]; Bill No. A. 5835 [introduced 1985]; Bill No. A. 1876 [introduced 1985]; Bill No. S. 420 [introduced 1985]; Bill No. A. 6055 [introduced 1984]; Bill No. S. 5121 [introduced 1984]; and Bill No. S. 1591 [introduced 1984]). New and modified provisions directly relevant to this case would have mandated that State courts "give due consideration and great weight” to the Federal courts’ interpretations of Federal antitrust statutes specifically including the Sherman and Clayton Antitrust Acts, and "to the per se doctrine to restraints of trade” (see, e.g., Bill No. S. 8399 [introduced 1986]). Other changes would have provided the Attorney-General greater investigatory and enforcement powers and would have made it a specific violation to allocate customers or markets functionally or geographically. Five bills directly and particularly regulating vertical restraints in the malt beverage industry, explicitly declaring such agreements unlawful and empowering the Attorney-General to investigate and litigate such restraints, were rejected (Bill No. A. 5754 [introduced 1985]; Bill No. A. 4077 [introduced 1985]; Bill No. S. 2325 [introduced 1985]; Bill No. A. 4284 [introduced 1983]; Bill No. S. 2668 [introduced 1983]).

All extant judicial construction of General Business Law § 340 refused to prohibit vertical restraint agreements; yet, the Legislature on no less than 12 occasions refused to change that and rejected bills to give the Attorney-General the very power now conferred.

In Matter of Knight-Ridder Broadcasting v Greenberg (70 NY2d 151), this court used the unanimity of precedents in all four Appellate Divisions construing the Shield Law statute (Civil Rights Law § 79-h) as protecting only confidential news sources, coupled with subsequent failed legislative efforts to amend the statute to broaden the privilege, as "compellingly persuasive evidence” (id., at 159) that the Legislature did not intend that such a broad privilege should exist. The court said that legislative history must be "reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted” that decisional law (id., at 157, citing Arbegast v Board of Educ., 65 NY2d 161, 169; Hammelburger v Foursome Inn Corp., 54 NY2d 580, 588; Engle v Talarico, 33 NY2d 237, 242). Building on this reasoning, in Boreali v Axelrod (71 NY2d 1, supra) the court relied, in part, upon negative legislative history, resulting from some 40 failed efforts to expand the prohibitions against smoking in public places (see, Public Health Law art 13-E), as evidence that the New York Public' Health Council had exceeded the scope of its broad authority to protect the public health by promulgating regulations limiting smoking in certain public places.

If the executive branch, under the separation doctrine, must respect the legislative branch prerogatives and history in a particular area, so must the judicial branch. Conflicting and selective applications of recently announced principles by this court do not well serve the judicial process and its purposes. I would affirm and quash the subpoenas.

Judges Simons, Alexander, Titone and Hancock, Jr., concur with Chief Judge Wachtler; Judge Bellacosa dissents and votes to affirm in a separate opinion; Judge Kaye taking no part.

Order reversed, with costs, and the judgments of Supreme Court, New York County, reinstated. Certified question not answered as unnecessary.

      . The Appellate Division also certified the following question: "Was the order of this Court, which reversed the six judgments (denominated orders) of the Supreme Court, properly made?” Because the order appealed from finally determines these special proceedings (see, Matter of Abrams [Anonymous], 62 NY2d 183, 192), the certified question was unnecessary and need not be answered.

      . Pertinent language from General Business Law § 343, the provision which confers investigatory powers on the Attorney-General, illustrates the broad scope of that authority. The statute authorizes an investigation "[wjhenever it shall appear to the attorney general * * * that any person or persons, partnership, corporation, company, trust or association shall have engaged in or engages in or is about to engage in any act or practice by this article [the Donnelly Act] prohibited or declared to be illegal, or * * * has assisted or participated in any plan, scheme, agreement or combination of the nature described herein, or whenever he believes it to be in the public interest that an investigation be made”. That such an investigation may include the use of subpoenas and interrogatories is not disputed here.

      . Thus, the dissent’s major premise — that the Donnelly Act does not expressly declare the brewers’ practice to be illegal — is flawed. The Act, by its very broad terms, declares all restraints on trade to be illegal'; it is only by judicial interpretation that some practices have been held to be outside the act’s scope. And, as noted above (supra, at 332, n 2), the Attorney-General’s investigatory powers are equally broad. Thus, our decision to allow this investigation to proceed does not, as the dissent suggests, depend on the kind of extrapolation of legislative intent that we resisted in CPC Intl, v McKesson Corp. (70 NY2d 268).


text:
    In the Matter of D. S. Alamo Associates, Respondent, v Commissioner of Finance of the City of New York et al., Appellants.
    Argued January 5, 1988;
    decided February 17, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Edith I. Spivack, Joseph I. Lauer and Regina Feder of counsel), for appellants.
    RPTL 421-a provides a tax exemption to encourage residential construction and includes within the exemption incidental space used for the benefit of the residents. A commercial condominium, used solely for the benefit of its commercial owner, does not fall into the category of such incidental space. The decisions below, which nevertheless equate it with that space, misconstrue the pertinent statutes and unjustifiably stretch the exemption far beyond the legislative intent. (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539; Hewlett Assocs. v City of New York, 57 NY2d 356; Teleon Realty Corp. v City of New York, 88 Misc 2d 767, 68 AD2d 858, 50 NY2d 824; Metropolitan St. Ry. Co. v New York, 199 US 1; Matter of City of Lackawanna v State Bd. of Equalization & Assessment, 16 NY2d 222; County of Herkimer v Village of Herkimer, 251 App Div 126, 279 NY 560; Matter of John P. v Whalen, 54 NY2d 89; Matter of Slattery Assocs. v Tully, 79 AD2d 761, 54 NY2d 711; Matter of Great Lakes Dredge & Dock Co. v Department of Taxation & Fin., 39 NY2d 75; Matter of Young v Bragalini, 3 NY2d 602.)

      Kevin L. Smith, Paul E. Breene and Lauren G. Klein for respondent.
    I. RPTL 421-a requires that the building be fully exempt from taxation except for the mini tax. II. Appellants’ tortured arguments find no support in applicable precedent or legislative history and cannot overcome the clear language of the statute. (Hewlett Assocs. v City of New York, 57 NY2d 356; Teleon Realty Corp. v City of New York, 88 Misc 2d 767, 68 AD2d 858, 50 NY2d 824.) III. Appellants exceeded their authority and jurisdiction by refusing to implement the prior determination of the Department of Housing Preservation and Development. (Park Tower Assocs. v City of New York, 116 Misc 2d 1059; Matter of Temporary State Study Commn. v Greenidge, 40 AD2d 601, 31 NY2d 691.)
   OPINION OF THE COURT

Simons, J.

Petitioner is the owner and developer of a newly constructed multiple dwelling in New York City and entitled to the tax exemption authorized by section 421-a of the Real Property Tax Law. The owners of such properties pay only a minimum or "mini tax” which is calculated not on the assessed value of the new improvement but by applying the current tax rate to the assessed value of the property in the year before construction began. The full benefit of the exemption may be claimed during the period of construction and for two years after construction is completed. Thereafter, it is phased out in increments of 20% every two years (RPTL 421-a [2] [a] [i]-[v]).

Petitioner’s building is a 32-story mixed-use condominium building: it contains 223 residential units and 5 nonresidential units consisting of a parking garage, a drug store, a fruit and vegetable store, a bakery/pastry cafe and a children’s clothing store. The commercial space in the building comprises less than 12% of the aggregate floor area of the entire building. Thus, petitioner contends that under the plain meaning of RPTL 421-a, the entire building, including its commercial condominium space, is eligible for the full range of tax benefits granted by the statute and that the proper assessed value for the building during construction and for two years after its completion was $757,000, the mini tax assessed value on the property prior to construction.

The city determined, however, that only the residential condominium units in the building should be accorded the 421-a tax exemption and assessed the building at $1,621,691. It arrived at this assessment by apportioning the amount of the mini tax assessment, $757,000, between the residential and commercial units. Inasmuch as the residential units comprised 92.41% of the common interest of the building, 92.41% of the mini tax assessment, or $699,575, was allocated to them. A transitional assessment of $12,156,000 was applied to the whole property, however, and 7.59% of that assessment, or $922,116, representing the aggregate common interest of the commercial units which the city considered nonexempt, was added to the residential portion of the mini tax assessment. The resulting 1983/1984 assessment of the premises thus became $1,621,691, the sum of $699,575 (residential) + $922,116 (commercial), rather than the $757,000 mini tax assessment claimed by petitioner.

Petitioner, contending that the city erred by applying the exemption to the individual units rather than on a building-wide basis, commenced this article 78 proceeding seeking to annul respondents’ determination, to compel them to assess the building at $757,000 for the year 1983/1984 and to refund excess taxes paid for that year. Special Term granted the petition (134 Mise 2d 303) and the Appellate Division affirmed on the opinion at Special Term. There should be an affirmance.

Respondents’ position is that entitlement to a tax exemption is never to be presumed; the taxpayer’s right to the benefit must appear by clear and unambiguous statutory language (see, Matter of Mobil Oil Corp. v Finance Adm’r, 58 NY2d 95, 99; County of Herkimer v Village of Herkimer, 251 App Div 126, 127, affd 279 NY 560). They maintain that the provisions of section 421-a are not clear and unambiguous. Accordingly, they assert that their interpretation of the statute should be given deference because they are the parties charged with implementing it (see, Matter of John P. v Whalen, 54 NY2d 89, 95; Matter of Slattery Assocs. v Tully, 79 AD2d 761, affd 54 NY2d 711). They support their claim of ambiguity by (1) reference to previous decisions of this court dealing with the exemption (see, Hewlett Assocs. v City of New York, 57 NY2d 356; Teleon Realty Corp. v City of New York, 88 Misc 2d 767, mod 68 AD2d 858, affd on opn below 50 NY2d 824), (2) the alleged inconsistency of petitioner’s claim to an exemption calculated on a building-wide basis, rather than a unit-by-unit basis, with Real Property Law § 339-y and RPTL 580 and 581, relating to individual assessment of condominiums, and (3) the contention that the primary purpose of the statute, encouraging residential building, will not be furthered if the exemption is applied to commercial condominiums. Respondents note that residential units in rental and cooperative properties benefit by reduced rents if the exemption is applied building-wide, but no similar benefit accrues to residential condominium owners if commercial condominiums receive a tax benefit by receiving the exemption. However, the provisions of section 421-a apply to "new multiple dwellings” which the statute defines as a dwelling occupied as a residence or home by three or more families "whether such dwelling is rented or owned as a cooperative or condominium” (RPTL 421-a [1] [c]). Thus, for purposes of according the tax exemption, it directs that no distinction is to be made based upon the nature of the building’s ownership.

As originally enacted in 1971 (as RPTL 421, L 1971, ch 1207), the statute left unclear the extent to which nonresidential space in new buildings qualified for RPTL 421-a tax benefits. The city interpreted this section to authorize exemption for accessory uses necessary to the residential units but not commercial uses, and the obligation of identifying which space was actually accessory or incidental to the residential units was left to the agencies charged with implementing the statute (see, Hewlett Assocs. v City of New York, 57 NY2d 356, 367-371, supra). A typical question was whether a parking garage designed primarily for the building’s tenants, but open to members of the general public, was incidental to the residential units. In 1975 the Legislature clarified the matter by amending the statute to provide that in any multiple dwelling entitled to exemption: "in the event that the aggregate floor area of commercial, community facility and accessory use space exceeds twelve per cent of the aggregate floor area * * * there shall be a diminution of such tax exemption in an amount equal to the ratio of floor area of commercial, community facility and accessory use space in excess of twelve per cent of the aggregate floor area”. (RPTL former 421 [2] [now RPTL 421-a (2) (d)].)

Thus, although the original 1971 statute was silent with respect to commercial uses, community facilities or accessory uses in mixed-use buildings, thereby inviting interpretation, the amended statute, which applies to petitioner, explicitly recognizes that such uses are entitled to the exemption and establishes a fixed formula, based upon the ratio of aggregate floor area devoted to each use, to establish the maximum commercial use which may be incorporated in the building without impairing the exemption. It further provides that even if the commercial use exceeds the maximum 12% of the aggregate floor area allowed the exemption is not lost but only diminished pro tanto by the area exceeding 12%. Thus, it appears that, far from disqualifying commercial uses from the benefit of the exemption, the Legislature expressly recognized their limited entitlement to it by the 1975 amendment.

Respondents’ interpretation of the statute — that it must be applied on a unit-by-unit basis excluding commercial condominiums — would not only run counter to the express provisions of the statute but it would also exclude all condominium property from the tax exemption of RPTL 421-a because individual units could never qualify as "multiple dwellings” housing three or more families. We are obliged to read the words of the statute in their natural and most obvious sense (McKinney’s Cons Laws of NY, Book 1, Statutes § 94) and when we do so it appears that the Legislature intended all properties, regardless of the type of ownership, to receive the benefit of the exemption. If all the statute’s parts are to be harmonized, and given meaning, as they should be (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 98, 231), then the exemption is to be applied to the building as a whole, to the extent permitted, and not to parts of it. In the case of condominium units that means the mini tax assessment must be applied to the entire building and the assessment then apportioned on a unit-by-unit basis as required by Real Property Law § 339-y. The failure to do so effectively excises from the statute buildings held in condominium ownership and applies the exemption differently depending on the type of ownership.

Respondents contend further that commercial uses are entitled to the benefit of the exemption only to the extent that they are "incidental” to the residential use. Nothing in the statute supports that view. They contend, however, that such an interpretation is warranted by this court’s decisions in Hewlett Assocs. v City of New York (57 NY2d 356, supra) and Teleon Realty Corp. v City of New York (68 AD2d 858, affd on opn below 50 NY2d 824, supra).

The pertinent issue in Teleon was whether the minimum tax required under the statute could be discharged by the commercial portion of the premises without tax liability on the residential units. The Appellate Division held that it could not, that residential portions of the building must pay their proportionate share of the mini tax, and that it was error to apply the 1975 amendment of the statute to property constructed before the amendment was enacted (68 AD2d 858, 860, supra). We affirmed on the Appellate Division decision. Manifestly, that holding has no bearing on the present case.

In Hewlett Assocs. v City of New York (supra), the dispute concerned accessory use space; petitioner did not challenge the city’s practice of excluding commercial space from the exemption before 1975. After examining the history and purposes of the statute in some detail, we overruled Teleon to the extent of holding that the 1975 amendment applied to buildings constructed before its enactment and subsequent to the original statute in 1971. Passing on the accessory use claim, we held that whereas the city had previously granted the exemption to all accessory use space or space incidental to residential uses, the 1975 amendment limited the exemption to no more than 12% of the combined total accessory use and commercial space. Our comments, in dictum, on the reasonableness of the city’s interpretation of the pre-1975 statute, in a case which did not address the application of the exemption to mixed-use properties, does not imply acceptance of the city’s interpretation of the present statute amended specifically to address the allowable portion of commercial and accessory use footage which may benefit from the statutory exemption. In short, the ambiguities existing because the statute did not address the subject before 1975 were removed by the express provisions of the 1975 amendment. Inasmuch as the statutory language is clear, we must implement it as written and may not defer to an interpretation made by the agency charged with enforcement of the statute (see, Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

Nor do we agree with respondents that such an interpretation defeats the purpose of the legislation. The statute was enacted principally to correct a shortage of affordable housing by encouraging new construction of regulated residential units by awarding them tax benefits. Its purposes were far broader than residential development, however. They included promoting construction of new buildings, greater employment in the construction industry and the long-range increase and stabilization of the city’s tax base (see, Sponsor’s Mem, 1975 NY Legis Ann, at 303-304; see, Bill Jacket, L 1975, ch 857, Mem of Leonard E. Yoswein, Legislative Representative of City of New York, dated July 11, 1975 [outlining the reasons for supporting the amendment]). Those broad purposes are not impaired by granting a pro rata benefit of the exemption to a limited amount of commercial space in mixed-use condominiums. Thus, the language of the statute is consistent with the conclusion that the Legislature thought that more multiple dwellings, and thus more residential units, would be built if the developers were permitted to develop the ground floor of the building to its highest and best use in New York City— typically commercial development — without losing the benefit of the full exemption.

Finally, this interpretation is not inconsistent with Real Property Law § 339-y or RPTL 580 and 581 which deal with the imposition of taxes on condominium units. The purpose of article 9-B of the Real Property Law (Condominium Act), in which section 339-y is found, was to establish broad rules of law encouraging and regulating condominium development generally. The purpose of section 339-y was to insure that owners of individual condominium units would be insulated from responsibility for taxes due by owners of other units within their buildings by requiring separate tax accounts for each unit (see, Mem of Assn of Bar of City of NY, Committee on Real Property Law recommending adoption of Real Property Law art 9-B [Condominium Act], 1964 NY Legis Ann, at 356, 357). The purpose of RPTL 581 was to insure that owners of condominium and cooperative properties would be taxed fairly compared to rental properties held in single ownership and not penalized because of the type of ownership involved in their multiple dwellings (see, Matter of Marks v Pelcher, 58 AD2d 812, affd 49 NY2d 954). A similar purpose is manifested in the definition of multiple dwelling found in RPTL 421-a (1) (c). This purpose would be defeated, however, if the city’s interpretation of the statute were applied, segregating condominium units, and implementing the statutory exemption on the basis of the use of the units involved. Indeed, condominium units, residential or commercial, would never qualify for the exemption because, once segregated, they could not meet the definition of multiple dwellings. If the application we adopt offers an unfair tax advantage to commercial condominiums over other business properties, as respondents suggest, that is a matter for the New York City Council, which by local law can restrict, limit or condition the eligibility of benefits under this section (see, RPTL 421-a [2] [i]) or the State Legislature.

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

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

Order affirmed, with costs.

       The section has since been modified further without relevant change.


author: Chief Judge Wachtler.

text:
    Mario M. Cuomo et al., Respondents, v Long Island Lighting Company, Appellant.
    Argued January 5, 1988;
    decided February 17, 1988

      POINTS OF COUNSEL

      K. Dennis Sisk, W. Taylor Reveley, III, James N. Christman and Kathy E. B. McCleskey for appellant.
    I. The statutes cited in the complaints do not prohibit LILCO’s proposed activities in response to an emergency. (Matter of Tammy M., 108 Misc 2d 376; People v Offen, 96 Misc 2d 147; People v Longo, 71 Misc 2d 385; People v Traynham, 95 Misc 2d 145; People v Vogel, 116 Misc 2d 332.) II. The State’s police power does not prohibit LILCO from acting to protect public health and safety in a radiological emergency. (People v Bielmeyer, 54 Misc 2d 466; Matter of City of Utica v Water Pollution Control Bd., 6 AD2d 340, 5 NY2d 164; Yonkers Community Dev. Agency v Morris, 37 NY2d 478, 423 US 1010; Long Is. Light. Co. v County of Suffolk, 628 F Supp 654; Koch v Yunich, 533 F2d 80.)

      Martin B. Ashare, County Attorney (David A. Brownlee, Michael J. Lynch, Kenneth M. Argentieri, Herbert H. Brown and Lawrence C. Lanpher of counsel), for County of Suffolk, respondent; Robert Abrams, Attorney-General (John W. Corwin and Mary M. Gundrum of counsel) and Fabian G. Palomino for Mario M. Cuomo, respondent; John F. Shea, III, and
      Stephen B. Latham for Township of Southampton, respondent.
    I. Under its Emergency Plan, LILCO would assume responsibility for basic governmental functions that fall within the State’s historic police powers. (Guard v Nuclear Regulatory Commn., 753 F2d 1144; People v Nebbia, 262 NY 259, 291 US 502; East N. Y Bank v Hahn, 326 US 230; Teeval v Stern, 301 NY 346, 340 US 876; American Consumer Indus. v City of New York, 28 AD2d 38; People v Ford Motor Co., 271 App Div 141; Kelley v Johnson, 425 US 238; Adler v Deegan, 251 NY 467; Yonkers Community Dev. Agency v Morris, 37 NY2d 478, 423 US 1010; Silvian v Shang, 70 AD2d 704.) II. The governmental functions LILCO seeks to perform are exclusively reserved to the State and its duly authorized political subdivisions. (Matter of Bon-Air Estates v Building Inspector, 31 AD2d 502; Incorporated Vil. of Brookville v Paulgene Realty Corp., 24 Misc 2d 790, 14 AD2d 575, 11 NY2d 672; Matter of Combs v Lipson, 44 Misc 2d 467; Matter of County of Erie v Williams, 114 AD2d 661; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Beacon Syracuse Assocs. v City of Syracuse, 560 F Supp 188; Matter of Fink v Cole, 302 NY 216; Brandon Shores v Incorporated Vil. of Greenwood Lake, 68 Misc 2d 343; Milchman v Rivera, 39 Misc 2d 347, 13 NY2d 1123.) III. Private corporations are creatures of the State law and have only those powers conferred upon them by their State of incorporation. (State of New York v Abortion Information Agency, 37 AD2d 142, 30 NY2d 779; State of New York v Saksnit, 69 Misc 2d 554.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The plaintiffs, involved in a licensing dispute before a Federal agency, have asked the courts of this State to answer a question of State law which may be of use in the pending administrative proceeding. Plaintiffs here seek nothing more than an advisory opinion for possible use by a Federal agency —relief beyond the judicial function, and inconsistent with the constitutional mandate of this court. Neither the Federal agency nor the Long Island Lighting Company (LILCO) can by agreement confer subject matter jurisdiction upon this court where there is none.

I

In the aftermath of the Three Mile Island nuclear accident, as part of the Nuclear Regulatory Commission Authorization Act for fiscal year 1980 (Pub L 96-295), Congress made the existence of an adequate Emergency Response Plan (Emergency Plan) a prerequisite to the issuance of an operating license to a nuclear facility. Section 109 (b) (1) (B) (i) (II) of that act provides that a State, local or utility Emergency Plan may be adequate to satisfy the statute if it "provides reasonable assurance that public health and safety is not endanger ed by operation of the facility concerned.”

It is well known that in the case of LILCO Shoreham nuclear facility, the State and local governments have refused to submit an Emergency Plan, and maintain that no plan would provide adequate protection in the case of a nuclear accident; LILCO, therefore, has devised its own Emergency Plan. Briefly stated, the version of the LILCO Emergency Plan in the record before the court calls for formation of a private local emergency response organization (LERO), made up of LILCO employees and volunteers, to implement the Emergency Plan. The plan envisions six general activities to be performed by LERO in the case of an emergency: (1) accident assessment; (2) notification of the public; (3) recommendation of protective measures within a 10-mile "plume exposure pathway emergency planning zone”; (4) recommendation of protective action within a 50-mile "ingestion exposure pathway”; (5) recommendation of steps and procedures for reentry and recovery after the accident; and (6) facilitation of the flow of traffic if evacuation is necessary. The plan also provides that if Government authorities take action to protect the public "these actions will take precedence over LERO actions.”

The dispute in this case between plaintiffs Governor Cuomo, the County of Suffolk, and the Town of Southampton (together, the Government) and defendant LILCO finds its roots in a pending Nuclear Regulatory Commission (NRC) proceeding in which LILCO is seeking an operating license for its Shoreham facility. During the initial licensing proceeding before the Atomic Safety and Licensing Board, the Government argued that LILCO was without authority under New York State law to implement the proposed Emergency Plan. The Atomic Safety and Licensing Board then requested that the parties go to New York State court to find out the answer.

The present actions were then brought in Supreme Court, with each plaintiff alleging, in essence, that LILCO was without authority under State law to implement the Emergency Plan, and that implementation would be an illegal usurpation of the Government’s police power. The actions were consolidated, LILCO moved to dismiss, and the Government cross-moved for summary judgment. The trial court, after first holding that a justiciable controversy was presented, granted partial summary judgment to the Government, agreeing that LILCO was without authority under State law to implement the plan, and that to do so would be a usurpation of the Government’s police power. The Appellate Division affirmed, and subsequently certified to this court the question of whether the order of affirmance was properly made.

Following the decision in Supreme Court, the Atomic Safety and Licensing Board held that the Emergency Plan did not meet agency regulations, because LILCO had not shown that the plan could be lawfully implemented. The Atomic Safety and Licensing Appeal Board affirmed. The NRC then reversed, however, and remanded the case to the Atomic Safety and Licensing Board with instructions to consider what has become known as the "realism doctrine.” This doctrine, which was made part of recently promulgated amendments to NRC regulations, states that: "In making its determination on the adequacy of a utility plan, the NRC will recognize the reality that in an actual emergency, state and local government officials will exercise their best efforts to protect the health and safety of the public. The NRC will determine the adequacy of that expected response, in combination with the utility’s compensating measures, on a case-by-case basis * * * [I]t may be presumed that in the event of an actual radiological emergency state and local officials would generally follow the utility plan [if no government plan exists]” (10 CFR 50.47 [c] [1] [iii] [B]). Additionally, in its comments on the new regulations the NRC instructed that: "The presiding Licensing Board should not hesitate to reject any claim that state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency. In actual emergencies, state, local, and federal officials have invariably done their utmost to protect the citizenry, as two hundred years of American history amply demonstrates” (52 Fed Reg 42085 [Nov. 3, 1987]).

Finally, upon remand, and after the present case was argued in this court, the Atomic Safety and Licensing Board again held that the Emergency Plan could not be safely implemented. This decision has not yet been appealed to the Atomic Safety and Licensing Appeal Board.

II

The courts of New York do not issue advisory opinions for the fundamental reason that in this State "[t]he giving of such opinions is not the exercise of the judicial function” (Matter of State Indus. Commn., 224 NY 13, 16 [Cardozo, J.]). The role of the judiciary is to " 'give the rule or sentence’ ” (Matter of Richardson, 247 NY 401, 410), and thus the courts may not issue judicial decisions that "can have no immediate effect and may never resolve anything” (New York Pub. Interest Research Group [NYPIRG] v Carey, 42 NY2d 527, 531). It is therefore settled law that an action "may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur” (e.g., American Ins. Assn. v Chu, 64 NY2d 379, 385; NYPIRG v Carey, 42 NY2d 527, 531, supra; Matter of State Indus. Commn., 224 NY 13, 16, supra). This rule not only prevents dissipation of judicial resources, but more importantly, it prevents devaluation of the force of judicial decrees which decide concrete disputes.

Applying these principles in American Ins. Assn. v Chu (supra) and NYPIRG v Carey (supra), the court held that where the injury to the plaintiff was contingent upon the enactment of legislation in the future, the dispute was not justiciable. In Matter of State Indus. Commn. (supra), the same rule was applied in an administrative context, and the court refused to rule on the legality of regulations under consideration but not yet promulgated by the State Industrial Commission.

In the present case, Government argues that LILCO’s implementation of the Emergency Plan would usurp Government’s police power. However, this potential encroachment can occur only if the NRC approves the plan, which it has not yet done and which it may never do. In addition the Emergency Plan has been revised six times during the pendency of this litigation alone — once after the case was argued before this court. Therefore, even if a plan is at some point approved, it certainly cannot be known at this point whether any final version of the plan would pose the threat that Government objects to here. Thus the potential for encroachment of which Government complains is contingent upon unfinished Federal administrative decisions, and presents a nonjusticiable dispute under Matter of State Indus. Commn. (supra), American Ins. Assn. v Chu (supra), and NYPIRG v Carey (supra).

Nor does the distinction drawn in NYPIRG v Carey, between a bare challenge to the legality of a statute, and a challenge incidental to a dispute "as to whether the proposition should be placed or remain on the ballot” (id., at 531), find application here, although apparently relied upon by the lower courts in this case. As explained in NYPIRG v Carey (supra), the latter situation, in which a court may rule albeit "with reluctance” on pending legislation, does not call for an advisory opinion because: "The effect of the court’s determination in those cases does not depend on the outcome of the election. On the contrary, those orders have the immediate and practical effect of determining whether the proposition should be submitted to the voters”. (Id., at 532; see also, Matter of Cantrell v Hayduk, 45 NY2d 925, 926 [a court’s decision that a proposition should be stricken from the ballot has an "immediate effect”].)

The present case does not fall within the NYPIRG v Carey exception for at least two fundamental reasons. First, in every case relied on in NYPIRG v Carey, an order was sought which, if granted, would indeed have had the real and immediate effect of striking the complained-of proposition from the ballot (see, Matter of McCabe v Voorhis, 243 NY 401; Matter of Tierney v Cohen, 268 NY 464; Matter of Osborn v Cohen, 272 NY 55; Matter of Mooney v Cohen, 272 NY 33; Johnson v Etkin, 279 NY 1; Matter of Stroughton v Cohen, 281 NY 343; Matter of Astwood v Cohen, 291 NY 484). In contrast, here the court is not requested to order that the Emergency Plan be stricken from the record before the NRC, or for an order that LILCO withdraw it. Nor would such orders in practice be anything more than hortatory. The NRC is not a party in this court. An order that LILCO withdraw the Emergency Plan would not require that the NRC allow withdrawal — it could simply refuse LILCO’s request. This case, therefore, is not analogous to the "striking from the ballot” cases distinguished in NYPIRG v Carey (supra, at 532); when the court spoke there of the real and immediate effect of a judicial decision, it in no sense referred to the possible result of a nonbinding request made to a Federal administrative agency.

Second, even where the court has allowed a challenge to a proposition before it has been enacted, the court could be satisfied that it was assessing the final form of the document (e.g., Matter of McCabe v Voorhis, supra; Matter of Astwood v Cohen, supra). There certainly is no assurance that what will be the final version of the Emergency Plan is under review here; in fact, the Emergency Plan has again been revised since this case was argued before the court. Nor can it be known to what extent the NRC will finally apply the realism doctrine to the Emergency Plan. It is unknown, therefore, what part of the Emergency Plan LILCO would really be expected by the NRC to carry out. To analogize this case to the cases distinguished in NYPIRG v Carey (supra), it is as if the court here was asked to issue a nonbinding request that a proposition be stricken from the ballot, while the precise language of the proposition — indeed, even the substance — was still being negotiated. This case, therefore, in no manner fits within the "strike from the ballot” exception explained in NYPIRG v Carey, and this dispute is nonjusticiable due to its dependence upon as yet uncertain decisions of a third party, the NRC.

It is equally important that, apart from the pendency of the NRC proceedings and the demonstrated mutability of the Emergency Plan, this case squarely implicates Chief Judge Cardozo’s remonstrance that the New York courts "are not adjuncts or advisors * * * of other agencies of government”, and his warning that the traditional judicial function "may be destroyed by turning the power to decide into a pallid opportunity to consult and recommend” (Matter of Richardson, 247 NY, at 410, 411, supra). Thus the court held in Matter of Richardson (supra), that a Judge could not properly be empowered to give "mere advice to the Governor, who may adopt * * * modify * * * or reject * * * altogether” the Judge’s findings on whether a public official should be removed from office (id., at 410).

Similarly, in Matter of State Indus. Commn. (224 NY 13, supra), the court held that it was without jurisdiction to resolve a dispute within the State Industrial Commission. In that case the members of the Commission, "debating their powers among themselves” regarding the legality of a proposed regulation requiring insurance companies to make payments into a certain State fund, asked the court to resolve the issue. The court refused, holding that the Commission was seeking an advisory opinion that would bind "no one and settl[e] nothing” (id., at 16). Stating that it was outside the judicial function to "tender * * * advice which may be accepted or rejected” (id., at 17), the court held that it was impermissible for Judges to act, " 'not as a court, but as the constitutional advisors of the other departments’ (Opinion of Justices, 126 Mass. 557, 563 * * *)” (id.).

In the case now before us it was a subdivision of the NRC that originally suggested that the Government and LILCO go to State court to determine whether LILCO could implement the plan consistently with State law. The NRC, however, is not a party to the action in this court. It is not bound by any determination made here. For this and numerous other reasons, the court could not enjoin the NRC from considering the present Emergency Plan, or from approving it. Thus upon inspection no decision here could prevent the NRC from simply disregarding this court’s interpretation of State law.

There can be no doubt that the substantive question of whether any Emergency Plan for the Shoreham nuclear power plant is feasible and implementable presents highly important and emotional issues of public policy and safety. As to all aspects of this question, however, it is the NRC, subject to judicial review in the Federal courts, who will speak "the rule or sentence”; any decision in the present case, while it may provide guidance and indeed be helpful to the NRC, would in the end bind "no one and settl[e] nothing” (see, Matter of State Indus. Commn., supra, at 16). What the parties request, therefore, is a nonbinding advisory opinion for the edification of the NRC. This is not an exercise of the judicial function and is outside the subject matter jurisdiction of this court.

Accordingly, the order of the Appellate Division should be reversed, the certified question answered in the negative, and the complaints dismissed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, without costs, certified question answered in the negative and complaints dismissed.

      . In both the trial court and at the Appellate Division, LILCO urged nonjusticiability. In this court it abandoned that argument.

      . The Atomic Safety and Licensing Board is part of the NRC. Atomic Safety and Licensing Board decisions are appealable to the Atomic Safety and Licensing Appeal Board, whose decisions are in turn reviewable by the Commission itself.

      . NY Constitution, article VI, § 3 (b) (9) in certain instances allows this court to answer questions certified to it by the United States Supreme Court, United States Courts of Appeals, or the appellate courts of last resort of another State when those answers would be determinative of actions pending before them. This constitutional provision does not apply here.

      . Among them are the fact that the Federal Courts of Appeals have exclusive jurisdiction over most final NRC decisions involving the licensing of nuclear reactors (28 USC § 2342 [4]; 42 USC § 2239), and, in any event, because the NRC has not yet reached a decision on the implementability of the Emergency Plan, it is unlikely that any NRC decision is ripe for review (see, Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510).

      . Nor would this court’s decision bind the NRC upon judicial review in Federal court of its decision on whether to license Shoreham, again because the NRC is not a party here.