text:
    [672 NE2d 135, 649 NYS2d 115]
    Peggy Juarez, an Infant, by Her Mother and Natural Guardian, Noemi Juarez, et al., Respondents, v Wavecrest Management Team Ltd., Defendant, and Mayaghor Realty, Inc., Appellant.
    Argued April 24, 1996;
    decided July 2, 1996

      POINTS OF COUNSEL

      Skadden, Arps, Slate, Meagher & Flom, New York City (Sheila L. Birnbaum, Barbara Wrubel and David J. Abrams of counsel), and Milton M. Witchel, P. C. (Larry J. Bonchonsky of counsel), for appellant.
    I. The court below erred in affirming summary judgment to plaintiffs despite the owner’s lack of notice as to either of the two conditions — a child six or younger in residence and the presence of a dangerous lead paint condition — necessary to trigger obligations under Administrative Code of the City of New York § 27-2013 (h). (Piacquadio v Recine Realty Corp., 84 NY2d 97; Appleby v Webb, 186 AD2d 1078; Garcia v New York City Hous. Auth., 183 AD2d 619; Mahlmann v Yelverton, 109 Misc 2d 127; Brown v Marathon Realty, 170 AD2d 426; Alharb v Sayegh, 199 AD2d 229; Miller v Beaugrand, 169 AD2d 537, 77 NY2d 810; Hayes v Hambruch, 841 F Supp 706, 64 F3d 657; Morris v Snappy Car Rental, 84 NY2d 21; B & F Bldg. Corp. v Liebig, 76 NY2d 689.) II. Imposition of a duty on owners to inspect for the presence of children six or younger and for a dangerous lead paint condition was not intended by the City Council nor is it a necessary element of Local Law 1. (Jiggetts v Grinker, 75 NY2d 411; Matter of Malpica-Orsini, 36 NY2d 568, appeal dismissed sub nom. Orsini v Blasi, 423 US 1042; Matter of Albano v Kirby, 36 NY2d 526; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of McDermott v Berolzheimer, 210 AD2d 559; Duva v Flushing Hosp. & Med. Ctr., 108 Misc 2d 900; People v Mobil Oil Corp., 48 NY2d 192; Matter of Honeoye Cent. School Dist. v Berle, 72 AD2d 25, 51 NY2d 970; New York City Coalition To End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404; Connally v General Constr. Co., 269 US 385.) III. The decision of the court below imposes such onerous and unbounded obligations on building owners as to impede rather than effectuate the public interest. (Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114; Southold Sav. Bank v Gilligan, 76 Misc 2d 30.) IV. Violation of Administrative Code § 27-2013 (h) does not constitute negligence per se. (Long v Forest-Fehlhaber, 55 NY2d 154, 56 NY2d 805; Barnes v Stone-Quinn, 195 AD2d 12; McGowan v Kennedy & Co., 158 AD2d 420; Permuy v City of New York, 156 AD2d 174; Bjelicic v Lynned Realty Corp., 152 AD2d 151, 75 NY2d 947; Rothstein v City Univ. of N. Y., 148 Misc 2d 911, 194 AD2d 533; Major v Waverly & Ogden, 7 NY2d 332; Schulman v Consolidated Edison Co., 85 AD2d 186; Nielsen v City of New York, 38 AD2d 592, 30 NY2d 568; Dutan v Des Bel Realty Corp., 202 AD2d 550.) V. Plaintiffs did not submit expert medical evidence of causation necessary to prevail on their motion for summary judgment. (Armstrong v State of New York, 214 AD2d 812, 86 NY2d 702; Kracker v Spartan Chem. Co., 183 AD2d 810; Fane v Zimmer, Inc., 927 F2d 124; Macey v Hassam, 97 AD2d 919; Jacques v State of New York, 127 Misc 2d 769; DeCicco v

      Roberts, 202 AD2d 165; Mortensen v Memorial Hosp., 105 AD2d 151.)

      Richard H. Bliss, New York City, and Michael Stewart Frankel for respondents.
    I. Appellant is absolutely liable for its violation of Local Law 1. (Utica Mut. Ins. Co. v Mancini & Sons, 9 AD2d 116; Van Gaasbeck v Webatuck Cent. School Dist., 21 NY2d 239; Koenig v Patrick Constr. Corp., 298 NY 313; Amberg v Kinley, 214 NY 531; Dashinsky v Santjer, 32 AD2d 382; Runkel v City of New York, 282 App Div 173; Mullen v Zoebe, Inc., 86 NY2d 135; Lombardi v Stout, 80 NY2d 290; Juarez v Wavecrest Mgt. Team., 212 AD2d 38; Union Pac. Ry. Co. v McDonald, 152 US 262.) II. Alternatively, appellant’s violation of Local Law 1 constituted negligence per se. (Dance v Town of Southampton, 95 AD2d 442; Adler v Warren, 104 AD2d 476; Aranzullo v Seidell, 96 AD2d 1048; Rainbow v Elia Bldg. Co., 79 AD2d 287, 56 NY2d 550; Long v Forest-Fehlhaber, 55 NY2d 154, 56 NY2d 805; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Chatopeg, Inc. v Bullowa, 291 NY 70.) III. The court below correctly concluded that Local Law 1 imposes a duty of inspection upon appellant. (Emigrant Indus. Sav. Bank v One Hundred Eight W. Forty-Ninth St. Corp., 255 App Div 570, 280 NY 791; Altz v Leiberson, 233 NY 16; Becker v Manufacturers Trust Co., 262 App Div 525, 263 App Div 810; Willis v Young Men’s Christian Assn., 28 NY2d 375; Smulczeski v City Ctr., 3 NY2d 488; Rothstein v City Univ. of N. Y., 148 Misc 2d 911, 194 AD2d 533; Reider v Whitebrook Realty Corp., 23 AD2d 691; Abrash v Long Is. Univ., 22 AD2d 940; Watson v City of New York, 184 AD2d 690; Zuckerman v State of New York, 209 AD2d 510.) IV. Neither the legislative history of Local Law 1 nor settled rules of statutory construction support the restrictive reading of the statute advanced by appellant. (Earley v New York State Thruway Auth., 1 NY2d 374; Jensen v General Elec. Co., 82 NY2d 77; Matter of Daniel C., 99 AD2d 35, 63 NY2d 927; Psota v Long Is. R. R. Co., 246 NY 388; Giblin v Nassau County Med. Ctr., 61 NY2d 67; Arbegast v Board of Educ., 65 NY2d 161; Van Gaasbeck v Webatuck Cent. School Dist., 21 NY2d 239; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Trimarco v Klein, 56 NY2d 98; Kavanagh v New York, Ontario & W. Ry. Co., 196 App Div 384, 233 NY 597.) V. Local Law 1 suffers from no constitutional infirmity. (People v Martin, 50 NY2d 1029; 41 Kew Gardens Rd. Assocs. v Tyburski, 70 NY2d 325; Lighthouse Shores v Town of Islip, 41 NY2d 7; Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358; Grayned v City of Rockford, 408 US 104; United

      States v Schneiderman, 968 F2d 1564; Foss v City of Rochester, 65 NY2d 247; Matter of Nicholas v Kahn, 47 NY2d 24; People v Byron, 17 NY2d 64.) VI. Respondents established their entitlement to summary judgment. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921; Daggett v Keshner, 284 App Div 733, 6 AD2d 503, 7 NY2d 981; Jacondino v Lovis, 186 AD2d 109; Pagano v Kingsbury, 182 AD2d 268; Andre v Pomeroy, 35 NY2d 361; Whitely v Lobue, 59 Misc 2d 755, 30 AD2d 552, 24 NY2d 896.)

      Paul A. Crotty, Corporation Counsel of New York City (Cheryl Payer and Stephen J. McGrath of counsel), for City of New York, amicus curiae.

    The court erred in holding that violation of a local law is negligence per se rather than merely evidence of negligence. (Long v Forest-Fehlhaber, 55 NY2d 154, 56 NY2d 805; Major v Waverly & Ogden, 7 NY2d 332; Shaw v Kull, 141 AD2d 813; Teller v Prospect Hgts. Hosp., 280 NY 456; Conte v Large Scale Dev. Corp., 10 NY2d 20; Young v Wyman, 76 NY2d 1009; Zimmer v Chemung County Performing Arts Ctr., 65 NY2d 513, 1054; Ferrer v Harris, 55 NY2d 285; Martin v Herzog, 228 NY 164; Knupfle v Knickerbocker Ice Co., 84 NY 488.)

      Anderson Kill Olick & Oshinsky, P. C., New York City (Howard E. Cotton, Irene C. Warshauer, Amalia G. Pena, Amy Borress Glass and Wendy L. Rapp of counsel), for Rent Stabilization Association of N. Y. C., Inc., amicus curiae.

    I. The court below erred in holding that a violation of Administrative Code § 27-2013 (h), an ordinance, constitutes negligence per se rather than merely some evidence of negligence. (Brown v Marathon Realty, 170 AD2d 426; Mahlmann v Yelverton, 109 Misc 2d 127; Alharb v Sayegh, 199 AD2d 229; Appleby v Webb, 186 AD2d 1078; Garcia v New York City Hous. Auth., 183 AD2d 619; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Long v Forest-Fehlhaber, 55 NY2d 154; Barnes v Stone-Quinn, 195 AD2d 12; McGowan v Kennedy & Co., 158 AD2d 420.) II. The court below erred in construing Administrative Code § 27-2013 (h) as imposing an affirmative and continuing duty on multiple dwelling owners to inspect for the presence of paint with lead pigment and for the presence of children six years of age or under. (Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Watson v City of New York, 184 AD2d 690; Willis v Young Men’s Christian Assn., 28 NY2d 375; Cunningham v L.P.T.G. Farragut Realty Corp., 200 AD2d 651; Constanzo v New York City Hous. Auth., 158 AD2d 576; Ramos v 600 W. 183rd St., 155 AD2d 333; Park W. Mgt. Corp. v Mitchell,
      47 NY2d 316; Suarez v Rivercross Tenants’ Corp., 107 Misc 2d 135; Westway Plaza Assocs. v Doe, 179 AD2d 408; Baxter v Captain Crow Mgt., 128 Misc 2d 254.) III. The court below erred in imposing an affirmative and continuing duty to inspect so broad and vague as to deprive multiple dwelling owners of their right to due process under the United States and New York State Constitutions. (Connally v General Constr. Co., 269 US 385; Foss v City of Rochester, 65 NY2d 247; Nik-O-Lok Co. v Carey, 52 AD2d 375, 40 NY2d 1089; Goldberg v Corcoran, 153 AD2d 113, 75 NY2d 945; Dennis v United States, 341 US 494; Courtsey Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379, 375 US 78; Arnett v Kennedy, 416 US 134; Matter of Petterson v Daystrom Corp., 17 NY2d 32.)

      Hodgson, Russ, Andrews, Woods & Goodyear, LLP, Buffalo (Benjamin M. Zuffranieri, Jr., Michael P. Murphy and Michael V. McLaughlin of counsel), for Nationwide Insurance Company, amicus curiae.

    I. The decision below is unsupported by the language, structure, and legislative history of the Administrative Code, introduces confusion and inconsistency into the law, and should be reversed. (Jiggetts v Grinker, 75 NY2d 411; Segar v Youngs, 45 NY2d 568; Matter of Connor v Deer Park Union Free School Dist., 195 AD2d 216; Duva v Flushing Hosp. & Med. Ctr., 108 Misc 2d 900; Berger v City of New York, 260 App Div 402, 285 NY 723; McGowan v Mayor of City of N. Y., 53 NY2d 86; Mahlmann v Yelverton, 109 Misc 2d 127; Basso v Miller, 40 NY2d 233; Brown v Marathon Realty, 170 AD2d 426; Alharb v Sayegh, 199 AD2d 229.) II. Violation of a local ordinance is merely evidence of negligence, not negligence per se. (Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Schumer v Caplin, 241 NY 346; Major v Waverly & Ogden, 7 NY2d 332; Long v Forest-Fehlhaber, 55 NY2d 154, 56 NY2d 805; Conte v Large Scale Dev. Corp., 10 NY2d 20; Teller v Prospect Hgts. Hosp., 280 NY 456; Smulczeski v City Ctr., 3 NY2d 488; Permuy v City of New York, 156 AD2d 174.) III. The court’s conclusion that peeling paint is a "significant structural defect” is in error. (Quinones v 27 Third City King Rest., 198 AD2d 23; Levy v Daitz, 196 AD2d 454; Manning v New York Tel. Co., 157 AD2d 264.)

      Howell, Gately, Whitney & Carter (David A. Carter and Una M. Perez, of the Maryland Bar, admitted pro hac vice, of counsel), for American Insurance Association, amicus curiae.

    I. The lead paint provisions of the New York City Housing Maintenance Code do not supersede or abrogate the requirement that the tort liability of a landlord out of possession depends upon notice of a lead paint hazard and a reasonable opportunity to correct it. (Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Czerkas v Jonre Realty Co., 200 AD2d 821; Oquendo v Mid Mem Corp., 103 AD2d 705; Mahlmann v Yelverton, 109 Misc 2d 127; Worth Distribs. v Latham, 59 NY2d 231; Alharb v Sayegh, 199 AD2d 229; Carpenter v Smith, 191 AD2d 1036; City of New York v Candelario, 156 Misc 2d 330; Park W. Mgt. Corp. v Mitchell, 47 NY2d 316.) II. Despite its attempted disavowal of absolute liability, the court below has imposed strict liability upon landlords for violations of Local Law 1, thereby encroaching upon the prerogatives of the Legislature. (Alharb v Sayegh, 199 AD2d 229; Carpenter v Smith, 191 AD2d 1036.) III. The effects of abrogating the notice requirement by implying a duty to inspect and then abate results in a bad public policy and encroaches upon the legislative prerogative of balancing competing interests. (Jiggetts v Grinker, 75 NY2d 411.)

      Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Paul J. Bottari, Nina Cangiano and Angelo Rios of counsel), for New York City Housing Authority, amicus curiae.

    I. The court below exceeded its constitutional authority and assumed the role of the Legislature when it effectively amended Administrative Code § 27-2013. (Basso v Miller, 40 NY2d 233; Matter of Motor Vehicle Acc. Indem. Corp. [Holley], 33 Misc 2d 567; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516, 52 NY2d 895; Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114; Matter of State of New York v Ford Motor Co., 74 NY2d 495.) II. Violation of a local law, if it occurs at all, is not negligence per se but merely some evidence of negligence. (German v Federal Home Loan Mtge. Corp., 885 F Supp 537, 896 F Supp 1385.) III. Even if there was some evidence to justify the court below’s concern that owners of multiple dwellings would attempt to remain ignorant of potentially hazardous lead conditions, the solution proposed is unnecessary in light of extensive rules and regulations intended to insure compliance. (New York City Coalition To End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404.) IV. In order to recover for injuries arising out of exposure to lead, plaintiff must demonstrate that the owner had either actual or constructive notice of the defective condition. (Nussbaum v Lacopo, 27 NY2d 311; Fischer v Battery Bldg. Maintenance Co., 135 AD2d 378; Williamson v Brown, 15 NY 354; Appleby v Webb, 186 AD2d 1078; Parker v Conner, 93 NY 118;
      Claflin v Lenheim, 66 NY 301; Birdsall v Russell, 29 NY 220; Hudson v Union Free School Dist., 55 AD2d 1003; Bierzynski v New York Cent R. R. Co., 31 AD2d 294, 59 Misc 2d 315, 29 NY2d 804, 30 NY2d 790; Gordon v American Museum, 67 NY2d 836.)

      Landman Corsi Ballaine & Ford P. C., New York City (William G. Ballaine and Kenneth J. Rubinstein of counsel), for Federal Home Loan Mortgage Corporation and another, amici curiae.

    I. The Juarez decision makes bad public policy. II. The Juarez decision is legally flawed. (Long v Forest-Fehlhaber, 55 NY2d 154; Barnes v Stone-Quinn, 195 AD2d 12; Major v Waverly & Ogden, 7 NY2d 332; Permuy v City of New York, 156 AD2d 174; Schulman v Consolidated Edison Co., 85 AD2d 186; Monroe v City of New York, 67 AD2d 89; McGowan v Kennedy & Co., 158 AD2d 420; Bjelicic v Lynned Realty Corp., 152 AD2d 151; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Gantz v Kurz, 203 AD2d 240.)

      Peltz, Walker & Dubinsky, New York City (Bhalinder L. Rikhye of counsel), for Calvert Insurance Company, amicus curiae.

    I. Administrative Code of the City of New York § 27-2013 (h) does not impose a duty to inspect. (Ferres v City of New Rochelle, 68 NY2d 446; Finger Lake Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; People v Davis, 195 AD2d 1, 83 NY2d 871; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; People ex rel. Neufeld v McMickens, 117 AD2d 243, 70 NY2d 763; Matter of Thomas v Bethlehem Steel Corp., 95 AD2d 118; People v Cypress Hills Cemetery, 208 AD2d 247; Sega v State of New York, 60 NY2d 183, rearg denied sub nom. by Cutway v State of New York, 61 NY2d 670.) II. Local Law 1 is not violated until an owner fails to remove a confirmed lead hazard, or rebut its existence, pursuant to a notice to abate. (Pajak v Pajak, 56 NY2d 394.)

      Lucy Billings, Bronx, and Matthew J. Chachere for New York City Coalition to End Lead Poisoning and others, amici curiae.

    I. Landlords are required to take affirmative measures to prevent the poisoning of children residing in the landlords’ dwellings, regardless of any notice of noncompliance from another party. (McGowan v Mayor of City of N. Y., 53 NY2d 86; Parker v Conner, 93 NY 118; Williamson v Brown, 15 NY 354; Hudson v Union Free School Dist., 55 AD2d 1003; German v

      Federal Home Loan Mtge. Corp., 885 F Supp 537; New York City Coalition To End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404, 170 AD2d 419; People v Di Lorenzo, 154 Misc 2d 485; Gantz v Kurz, 203 AD2d 240; Alharb v Sayegh, 199 AD2d 229; Mahlmann v Yelverton, 109 Misc 2d 127.) II. Violation of the Administrative Code of the City of New York § 27-2013 (h) constitutes negligence per se. (Guzman v Haven Plaza Hous. Dev. Fund, 69 NY2d 559; Matter of Young v Gerosa, 11 AD2d 67; Bittroloff v Ho’s Dev. Corp., 77 NY2d 896; Hart v City Theatres Co., 215 NY 322; Bressler v Amsterdam Operating Corp., 194 Misc 76; Worth Distribs. v Latham, 59 NY2d 231; Gantz v Kurz, 203 AD2d 240; Phelan v Yellin, 122 Misc 2d 807; Long v Forest-Fehlhaber, 55 NY2d 154; Permuy v City of New York, 156 AD2d 174.) III. The court below’s decision assists appellant’s amicus City of New York in handling its duties and supports the City’s interests. (New York City Coalition To End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404, 170 AD2d 419; German v Federal Home Loan Mtge. Corp., 885 F Supp 537; Ashton v Pierce, 541 F Supp 635, 716 F2d 56; Wright v Roanoke Redevelopment & Hous. Auth., 479 US 418; Hurt v Philadelphia Hous. Auth., 806 F Supp 515.) IV. The court below’s decision assists appellant’s amicus New York City Housing Authority (NYCHA) in handling its duties, supports NYCHA’s interests, and imposes no new duties on NYCHA as landlord. (German v Federal Home Loan Mtge. Corp., 885 F Supp 537; New York City Coalition To End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404; McNeill v New York City Hous. Auth., 719 F Supp 233; Hurt v Philadelphia Hous. Auth., 806 F Supp 515; Ashton v Pierce, 716 F2d 56; Gomez v Housing Auth., 805 F Supp 1363; Henry Horner Mother’s Guild v Chicago Hous. Auth., 780 F Supp 511; Concerned Tenants Assn. v Pierce, 685 F Supp 316; Simon v Eastern Ky. Welfare Rights Org., 426 US 26; MacDonnell v Immigration & Naturalization Serv., 693 F Supp 1439.) V. Appellant and appellant’s amici cannot seriously contend that this Court perform the uniquely legislative function of weighing the policy alternatives that might be substituted for current law. (Jiggetts v Grinker, 75 NY2d 411; Federal Home Loan Mtge. Corp. v New York State Div. of Hous. Community & Renewal, 87 NY2d 325.)
   OPINION OF THE COURT

Chief Judge Kaye.

This case, brought on behalf of a child suffering from lead poisoning, presents our first opportunity to consider the liability of a landlord who has allegedly failed to comply with the lead abatement provision of the Administrative Code of the City of New York. That provision, Local Law 1, requires the owner of a multiple dwelling to "remove or cover” paint containing specified hazardous levels of lead in any apartment in which a child six years of age or younger resides (Administrative Code of City of NY § 27-2013 [h]). We are asked: does Local Law 1 obligate building owners to ascertain whether such a child resides in any of the dwelling units and then to inspect those units for dangerous lead conditions?

We hold that to establish liability plaintiffs must demonstrate that the building owner had actual or constructive notice that a child six years of age or under was living in one of its residential units. Under the statutory scheme, a landlord who has such notice is chargeable with notice of any hazardous lead condition in that unit.

Here, defendant landlord has failed to contest plaintiffs’ allegations that a lead hazard existed in the apartment and that defendant made no attempt to remedy it. Defendant has also failed to rebut plaintiffs’ prima facie showing of causation. Thus, no triable issues exist regarding defendant’s constructive notice of the hazard, the reasonableness of abatement efforts or causation — these issues were all correctly resolved against the landlord. There remains for resolution only the disputed question whether defendant had notice of the residency of a child under seven.

Facts

Defendant Mayaghor Realty obtained title to the building at 2295 Morris Avenue in the Bronx in September 1984. The tenant of record in apartment 4C at that time was Julio Ortiz. The lease between Mayaghor and Ortiz prohibited the tenant from subletting all or part of the apartment. Nevertheless, in October 1987, plaintiff Noemi Juarez and her two infant daughters sublet part of apartment 4C from Ortiz. Juarez paid Ortiz $150 per month to rent a bedroom and for use of the kitchen and bathroom. This arrangement continued until October 1991.

According to Juarez, peeling paint from the outset pervaded the apartment, with paint chips on the window, pipes, radiator and falling from the ceiling. On several occasions, she observed both daughters with paint dust on their hands and found them eating paint chips. At no time during their residency did anyone paint the apartment. Although Juarez complained to Ortiz about this problem, she never spoke to anyone connected with the owner.

After approximately a year, two-year-old plaintiff Peggy Juarez began complaining of stomach pain and exhibiting behavioral problems. In 1988, she was diagnosed as having lead poisoning. She received treatment at Montefiore Hospital and subsequently underwent outpatient chelation therapy.

On September 16, 1988, a New York City Department of Health sanitarian took 39 samples of paint from apartment 4C, and 38 of those samples tested positive for lead paint. A "Lead Poisoning Investigation Checklist” completed by the sanitarian that day indicates that Peggy had been seen eating paint chips, that there were defective surfaces and peeling paint in every area of the apartment, and that no other environmental conditions indicating a different source of lead were present.

Five days later, the Department of Health issued an Order to Abate Nuisance to the managing agent of the building, Wavecrest Management Team Ltd. The Order explained that a child with a specified high blood level of lead resided in apartment 4C, which was identified as a nuisance. The Order further stated that an inspection of the apartment had revealed paint containing levels of lead in violation of New York City Health Code § 173.13 (c) and (d) and detailed numerous lead contamination violations in seven areas of the apartment.

A principal of Mayaghor acknowledged during his deposition testimony in February 1992 that the corporation learned from Wavecrest that the City had discovered a lead poisoning problem in apartment 4C. Nevertheless, a subsequent Health Department inspection report showed that, as of October 19, 1988, the problem had not been corrected. Finally, on or about November 2, 1988, a construction company hired by the City commenced repairs but failed to eliminate the problem. A Department of Health sanitarian conducted another inspection of the apartment in December 1988 and issued a notice of remaining violations in January 1989. A Department of Health document established that the lead violations continued as late as February 1989.

Consequently, when Peggy returned from the hospital, her toys remained covered with dust and she continued to put her dust-covered hands into her mouth. Blood tests conducted in December 1988 revealed that, notwithstanding the treatment and therapy, her lead level had increased, and it remained high in early 1989.

Plaintiffs subsequently brought this action against defendants Mayaghor, Wavecrest and the successor owner of the building (2295 Morris Associates), alleging that Peggy suffered injury as a result of the defendants’ negligence. In their bill of particulars, plaintiffs claimed that defendants violated various provisions of the Administrative Code, the City Health Code and other State and Federal health regulations.

Plaintiffs moved for summary judgment as to liability, arguing that landlords have an affirmative duty to inspect multiple dwelling units for dangerous lead conditions. Although the trial court rejected this argument, it granted plaintiffs’ motion nonetheless, concluding that defendants had acquired notice of the lead condition and that a child was living in the apartment upon receiving the Department of Health Order. The court further found that there was no evidence that defendants took any steps to alleviate the dangerous condition.

On appeal, the Appellate Division concluded that summary judgment should have been denied against Wavecrest, since plaintiffs failed to submit evidence that Wavecrest had complete and exclusive control of the building. The court also denied summary judgment against the successor owner, finding an issue of fact as to the infant plaintiff’s continued exposure to a lead condition after 2295 Morris Associates assumed ownership of the premises. As to defendant Mayaghor, the Appellate Division affirmed the grant of summary judgment, holding that Local Law 1 imposes an affirmative duty of inspection on landowners irrespective of notice, and granted Mayaghor leave to appeal.

We conclude that liability does not attach under Local Law 1 unless a landlord has actual or constructive notice that a child under seven resides in the apartment, but that landlords with such knowledge may be charged with notice of dangerous lead conditions within their buildings. Because a material issue of fact exists here as to whether defendant had notice prior to receipt of the Order to Abate Nuisance that a child under seven was living in apartment 4C, we remit for further proceedings on that limited issue.

Legal Analysis

Background of Local Law 1

The serious health hazard posed to children by exposure to lead-based paint is by now well established. Children under the age of six, whose nervous systems are still developing, are particularly vulnerable to the damage caused by lead poisoning. High blood lead levels can produce brain damage, coma or death, and even relatively low levels can lead to significant nervous system damage (see, 1995 Report of Lead-Based Paint Hazard Reduction and Financing Task Force, Putting the Pieces Together: Controlling Lead Hazards in the Nation’s Housing, at 3; Oct. 1991 Statement by Centers for Disease Control and Prevention, Preventing Lead Poisoning in Young Children, at 7-10 [4th rev]).

While the use of lead-based paint on interior building surfaces has been prohibited since January 1960 (see, NY City Health Code § 173.13), such paint continues to cover the walls of two out of three City dwellings (see, 1993 Final Report of Mayor’s Advisory Comm to Prevent Childhood Lead-Paint Poisoning, at 1). Its widespread use thus renders lead poisoning a continuing threat to the health of young children in New York City, especially those in older and poverty-ridden neighborhoods (see, New York City Coalition To End Lead Poisoning v Koch, 138 Misc 2d 188, 189, affd 139 AD2d 404; 1995 Report of Lead-Based Paint Hazard Reduction and Financing Task Force, Putting the Pieces Together: Controlling Lead Hazards in the Nation’s Housing, at 3). Indeed, "[c]hildhood lead-paint poisoning may be the most significant environmental disease in New York City, in terms of the numbers of cases, the severity of the medical damage created, and the personal, social, and economic costs it imposes” (1993 Final Report of the Mayor’s Advisory Comm to Prevent Childhood Lead-Paint Poisoning, at 1).

Abatement of lead-based paint is an expensive process (see, Coyne, Lead Paint Abatement: Who Should Pay?, 2 Wis Envtl LJ 113, 115, n 9 [Winter 1995] [estimating abatement costs to range from 20 cents to $130.96 per square foot]; Miceli, Pancak and Sirmans, Protecting Children From Lead-Based Paint Poisoning: Should Landlords Bear the Burden?, 23 BC Envtl Aff L Rev 1, 8 [Fall 1995]). With nearly two million apartments in New York City built before lead-based paint was banned in 1960, addressing this problem therefore requires a weighing of policy interests, a responsibility that rests with Federal, State and local legislative bodies.

At issue here is the lead abatement legislation adopted by the New York City Council in 1982 and contained in the Housing Maintenance Code, Local Law 1. It provides:

"The owner of a multiple dwelling shall remove or cover in a manner approved by the department any paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter or greater or containing more than 0.5 percent of metallic lead based on the non-volatile content of the paint or other similar surface-coating material on the interior walls, ceilings, doors, window sills or moldings in any dwelling unit in which a child or children six (6) years of age and under reside” (Administrative Code § 27-2013 [h] [1]).

Paragraph (2) establishes a rebuttable presumption that, in any unit within a multiple dwelling erected prior to 1960 in which a child six years of age or under resides, any peeling paint or similar surface-coating material contains more than the specified level of lead. Paragraph (3) classifies the existence of paint or other substance containing the designated level of lead in an apartment with a child six years of age or younger to be a class C immediately hazardous violation, which must be corrected within 24 hours (see, Administrative Code § 27-2115 [c]).

Plaintiffs argue that the failure to keep a residential unit free of lead-based paint, in violation of Local Law 1, gives rise to absolute liability. Alternatively, they urge that defendant negligently failed to maintain the premises in a reasonably safe condition by failing to comply with Local Law 1. Defendant counters that it cannot be liable for plaintiff’s injuries because, prior to receiving the Health Department Order, it had no notice that the infant plaintiff resided on the premises or of the dangerous lead condition.

Resolution of these questions requires a brief review of some general principles of premises liability.

Premises Liability

Generally, a landlord may be held liable for injury caused by a defective or dangerous condition upon the leased premises if the landlord is under a statutory or contractual duty to maintain the premises in repair and reserves the right to enter for inspection and repair (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565-566; Worth Distribs. v Latham, 59 NY2d 231, 238). Additionally, the burden is on the plaintiff to prove not only that a dangerous condition existed on the premises but also that the landlord had notice of that condition and a reasonable opportunity to repair it (Madrid v City of New York, 42 NY2d 1039; Putnam v Stout, 38 NY2d 607, 612; Eddy v Tops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692).

At common law landlords had no duty to maintain leased premises, other than common areas, in good repair (Altz v Leiberson, 233 NY 16, 17; see, Prosser and Keeton, Torts § 63, at 434 [5th ed]; 2 Rasch, New York Landlord and Tenant— Summary Proceedings 18:1, at 30-31 [3d ed]). This was changed by adoption of the Tenement House Act (L1901, ch 334). Its successor, the Multiple Dwelling Law, directs that "[e]very multiple dwelling * * * and every part thereof and the lot upon which it is situated, shall be kept in good repair” (§ 78 [1]). This statute thus imposes upon a landlord “a duty to persons on its premises to maintain them in a reasonably safe condition” (Mas v Two Bridges Assocs., 75 NY2d 680, 687; see also, Altz v Leiberson, 233 NY at 17-18, supra). New York City landlords are further charged under the Administrative Code with the responsibility for safe maintenance of their buildings and facilities (Administrative Code §§ 27-127, 27-128; see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 566, supra).

In addition to these general obligations to remedy any defective condition on the premises, Local Law 1 imposes a specific duty to ameliorate hazardous levels of lead-based paint. Correlative with the specific obligation to abate a hazardous lead condition, Local Law 1 implicitly grants landlords the right of entry to effectuate such repairs (see, Gildea v Harris Fine Realty & Constr. Co., 249 App Div 775; see also, Administrative Code § 27-2008 [giving owner right to enter premises to make repairs required by the code]). Local Law 1 thus vests landlords with sufficient control over leased premises to sustain liability (see, Worth Distribs. v Latham, 59 NY2d at 238, supra). The nature of the liability imposed by Local Law 1 is the subject to which we next turn.

Liability Under Local Law 1

We reject plaintiffs’ argument that violation of Local Law 1 results in absolute liability, under which "[n]o excuse is recognized, and neither reasonable ignorance nor all proper care will avoid liability” (Prosser and Keeton, Torts § 36, at 227 [5th ed]). Unlike lead paint measures adopted in some other jurisdictions, Local Law 1 does not establish a statutory cause of action for civil remedies (compare, Mass Gen Laws Ann ch 111, § 199). Furthermore, while Local Law 1 is unquestionably intended to protect a definite class of persons from a particular hazard they are incapable of avoiding themselves, examination of the Administrative Code provisions at issue does not reveal an intent to impose liability without regard to fault (see, Trimarco v Klein, 56 NY2d 98, 108; Van Gaasbeck v Webatuck Cent. School Dist., 21 NY2d 239, 244).

Indeed, Local Law 1 does not itself create an additional standard of care. Rather, Local Law 1 defines a particular hazardous condition — the presence of specified levels of lead-based paint in an apartment occupied by a child six years of age or under — to which a landlord’s general duty to repair applies. That is, Local Law 1 simply obligates landlords to remedy a specific dangerous defect. Breach of a landlord’s general statutory duty to maintain leased premises in a safe condition, moreover, does not impose liability without fault, but requires a showing of those elements comprising common-law negligence (see, Altz v Leiberson, 233 NY at 18, supra; Collins v Noss, 258 App Div 101, affd 283 NY 595).

Consequently, we agree with the Appellate Division that Local Law 1 imposes "a standard of reasonableness” that allows a landlord to "persuade the fact finder that the existence of a lead paint hazard existed despite his diligent and reasonable efforts to prevent it” (212 AD2d 38, 48) (emphasis in original). Local Law 1 places a duty on landlords to abate a lead hazard. Where, however, a landlord establishes that it exercised due care, it will not be held liable. To avoid liability, a landlord must prove that, even though it violated Local Law 1, it was acting reasonably under the circumstances.

That liability turns on the reasonableness of a landlord’s efforts to ameliorate or prevent a dangerous lead condition is supported by the regulatory scheme. Tellingly, Local Law 1 does not provide how the abatement of a hazardous lead condition is to be accomplished or provide its own safety measures but states that the defect shall be removed or covered "¿n a manner approved by the department” (Administrative Code § 27-2013 [h] [1] [emphasis added]). Local Law 1 expressly defers to the rule-making authority of the Department of Housing Preservation and Development to establish the requisite safeguards. Chapter 11 of title 28 of the Rules of the City of New York sets forth the precise methods by which a landlord must abate paint containing excessive amounts of lead (see, 28 RCNY 11-04).

Thus, although Local Law 1 establishes that landlords have a duty to remedy a hazardous lead condition, the specific contours of that duty are dictated by City regulation. It has long been the rule in this State that a regulation of an administrative agency is merely some evidence to be considered on the question of a defendant’s negligence (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522; Major v Waverly & Ogden, 7 NY2d 332, 336; Schumer v Caplin, 241 NY 346). It follows, then, that the adequacy of a landlord’s efforts to discharge its duty to remedy a hazardous lead condition is to be governed by a standard of reasonableness.

Notwithstanding its determination that Local Law 1 allows landlords to avoid liability where they demonstrate reasonable care, the Appellate Division also reached the inconsistent conclusion that all violations of Local Law 1 constitute negligence as a matter of law. In doing so, it relied on the fact that the landlord’s duty is "fixed by statute” (212 AD2d at 46). While we have held that Administrative Code provisions imposing a specific duty have the force of statute (see, Bittrolff v Ho’s Dev. Corp., 77 NY2d 896, 899; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 566, supra), whether a court determining the tort consequences arising from their breach should treat Administrative Code provisions as State legislative enactments that may give rise to negligence per se — rather than as local ordinances amounting to some evidence of negligence — is a separate question. Given our conclusion that the particular Administrative Code provision before us incorporates a standard of reasonableness, however, we need not resolve this broader question.

Here, there is no issue as to the reasonableness of defendant’s abatement efforts — defendant did not allege in opposition to plaintiffs’ motion for summary judgment that it took any steps whatsoever to remedy the hazardous lead condition. Defendant’s only argument was that it could not be held liable for the infant plaintiffs injuries because it lacked notice of both the existence of lead-based paint exceeding the stated threshold and the residency of a child.

Notice

It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected (see, e.g., Piacquadio v Recine Realty Corp., 84 NY2d 967, 969; Worth Distribs. v Latham, 59 NY2d at 238, supra; see also, Putnam v Stout, 38 NY2d at 612, supra). In construing Local Law 1, which creates a basis of landlord liability not recognized under the common law, we must presume that the City Council was aware of the common-law rule and abrogated it only to the extent indicated by the clear import of its enactment (Morris v Snappy Car Rental, 84 NY2d 21, 28; B & F Bldg. Corp. v Liebig, 76 NY2d 689, 693).

Under Local Law 1, lead-based paint constitutes a hazard when two conditions are present: first, lead in an amount exceeding the stated threshold and second, a child six years of age or under residing in the apartment. Manifestly, neither Local Law 1 itself nor the regulations promulgated thereunder expressly eliminate the common-law notice requirement as to either element (see, Administrative Code § 27-2013 [h]; 28 RCNY 11-01 — 11-07). To the contrary, the regulatory scheme explicitly provides for notice to the landlord of the presence of hazardous levels of lead-based paint in an apartment occupied by a child (see, 28 RCNY 11-06) and allows the landlord an opportunity to remedy the condition after receiving notice (see, Administrative Code § 27-2115 [c]). To be liable for injuries caused by the lead hazard, then, a landlord must have actual or constructive notice of both the hazardous lead condition and the residency of a child six years of age or younger.

Nor does Local Law 1 require landlords affirmatively to ascertain whether children six years of age or under reside in their buildings. The absence of language charging landlords with such a duty of inspection is particularly telling when the lead abatement scheme is compared to the regulatory provisions requiring landlords to install window guards in multiple dwellings (see, Administrative Code § 17-123; 24 RCNY 12-03 [c]). Under the window guard law, a landlord is explicitly required to deliver an annual notice to each residential unit explaining the obligation to install window guards and inquiring whether children 10 years of age or younger reside in the apartment (see, Administrative Code § 17-123; 24 RCNY 12-03 [a], Appendix B). "When a tenant fails to return this annual notice, ''the landlord or his agent shall at reasonable times inspect the dwelling unit to ascertain whether a child 10 years of age or younger resides in the dwelling and if so, whether approved window guards are properly installed and maintained” (24 RCNY 12-03 [c]).

Given the absence of similar inspection provisions under Local Law 1, we conclude that the City Council did not intend to charge landlords with the responsibility of determining whether young children reside in any of their dwelling units. For the reasons that follow, however, we hold that where a landlord has notice that a child under the specified age is residing in an apartment, Local Law 1 provides for constructive notice of the hazardous lead condition.

Local Law 1 places a specific duty on landlords to abate lead paint in leased premises where children under the specified age reside (see, Administrative Code § 27-2013 [h]). It further establishes a presumption that, in any building erected prior to 1960, peeling paint in a dwelling unit occupied by a child six years of age or under comprises a hazardous lead condition (see, Administrative Code § 27-2013 [h] [2]). Local Law 1 thus gives landlords authority to enter dwelling units occupied by such children for the very purpose of inspecting for and repairing a lead paint defect (see also, Administrative Code § 27-2008 [granting right of entry to repair and inspect premises in order to comply with code]).

We have held, moreover, that a building owner may be charged with constructive notice of defects in those parts of the building into which it has authority to enter (see, e.g., Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 565-566, supra; Tkach v Montefiore Hosp., 289 NY 387, 389-390, supra). Thus, retention in the lease of the right to enter the interior of an apartment to inspect the premises has sufficed to charge an out-of-possession landlord with constructive notice of a defect within the apartment (see, Tkach v Montefiore Hosp., 289 NY at 389-390). Likewise, the right of entry conferred by Local Law 1 gives a landlord constructive notice of any lead paint hazard within an apartment that the landlord knows is occupied by a child of the specified age.

Here, defendant acknowledges that, as of the date it received the Order to Abate Nuisance, it had actual notice both that a child under the requisite age was residing in apartment 4C and that the apartment contained hazardous levels of lead. Plaintiffs concede that, prior to that date, a material issue of fact exists as to whether defendant had notice that apartment 4C was occupied by children under the age of seven. Noemi Juarez admitted in her deposition testimony that she never informed anyone at Mayaghor of her prohibited agreement with Ortiz, and defendant disputes her allegation that its agent, the building superintendent, saw her family move into the building.

If, however, defendant had knowledge that a child under seven resided in the apartment, it may be charged with notice of the lead hazard prior to receipt of the Order. Defendant had a right of entry under Local Law 1 as well as the lease and failed to contest plaintiffs’ allegation of a long-standing, manifest peeling paint condition.

Causation

As a final matter, we determine that plaintiffs established causation as a matter of law.

Plaintiffs’ proof sufficed to establish prima facie causation. In particular, they produced evidence that the apartment contained hazardous levels of lead-based paint, that Peggy Juarez was observed ingesting paint chips and dust and had elevated blood levels of lead, that Peggy was never out of her mother’s custody for any substantial period of time and that she did not complain of stomach pains or manifest certain behavioral changes prior to moving into this apartment.

In response, defendant submitted speculative assertions by its attorney as to other possible sources of the lead poisoning and Peggy’s behavioral disorders. The bare allegations of counsel, who lacked personal knowledge of the underlying facts, do not constitute competent evidentiary proof sufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562-563). The only other proof offered was an affidavit by Dr. Robert M. Gordon, an expert physician who evaluated Peggy. Although he did not dispute the diagnosis of lead, poisoning and even agreed that it may have contributed to Peggy’s deficiencies, Dr. Gordon speculated that they may also have been the result of her bilingual background and parents’ education level. Such surmise, however, is insufficient to raise a triable issue of fact.

Conclusion

In sum, we conclude that Local Law 1 does not impose on landlords a continuous and affirmative duty to inspect for the residence of children under seven. The law, however, does allow landlords to be charged with notice of dangerous lead conditions in their building. Whether a landlord has satisfied its duty to remedy a hazardous lead condition is governed by a standard of reasonableness. Here, defendant had constructive notice of the hazardous lead condition in apartment 4C; there is no issue as to the reasonableness of its abatement efforts — it made none; and no triable issue of fact exists as to causation. Only the narrow question of notice of the residency of a child under seven remains open for determination.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiffs’ cross motion for partial summary judgment as to liability with respect to defendant Mayaghor Realty, Inc., denied and the certified question answered in the negative.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ci~ parick concur.

Order reversed, etc.

       Section 11-04 of those Rules authorizes the following "Methods of Removal and Covering of Paint”: "The paint or other similar surface coating material in § 11-01 above shall be covered by applying dry wall construction; however, in the alterative, the paint or other similar surface coating material may be removed by scraping all loose paint and providing plaster weld or other bonding agent with the existing surface and applying two (2) coats of paint. Where the condition is recurring, and there is evidence of continued moisture, the alternative method will not be acceptable” (28 RCNY 11-04).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [672 NE2d 581, 649 NYS2d 356]
    The People of the State of New York, Respondent, v Hector Batista, Appellant.
    Argued September 4, 1996;
    decided October 15, 1996

      POINTS OF COUNSEL

      Culleton, Marinaccio & Foglia, Great Neck (Howard R. Birnbach of counsel), for appellant.
    The seizure of the gun was unconstitutional and the weapon should have been suppressed. (People v Diaz, 81 NY2d 106; Matter of Gregory M., 82 NY2d 588; People v Brewer, 200 AD2d 579; People v Williams, 160 AD2d 397; Ybarra v Illinois, 444 US 85; People v Johnson, 54 NY2d 958; People v Robbins, 83 NY2d 928; People v Howell, 49 NY2d 778; People v Banks, 85 NY2d 558.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Elizabeth F. Bernhardt, Billie Manning and Allen H. Saperstein of counsel), for respondent.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. (People v Owens, 74 NY2d 677; People v Meadows, 64 NY2d 956, 474 US 820.) II. The hearing court properly denied appellant’s motion to suppress physical evidence. (People v Iannelli, 69 NY2d 684, 482 US 914; Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57; People v Sierra, 83 NY2d 928; People v Hollman, 79 NY2d 181; People v Hicks, 68 NY2d 234; People v McRay, 51 NY2d 594; People v Boodle, 47 NY2d 398; People v De Bour, 40 NY2d 210; Terry v Ohio, 392 US 1; People v Smith, 59 NY2d 454.)
   OPINION OF THE COURT

Smith, J.

The issue on this appeal relates to the defendant’s right to be free from an illegal search and seizure (US Const 4th, 14th Amends; NY Const, art I, § 12). A police officer, after lawfully stopping a cab in which defendant was a passenger, had his suspicions aroused by his personal observation of defendant’s movements and false response to an inquiry. At this point, the officer touched defendant’s sweatshirt covering a bulletproof vest and, subsequently, discovered a weapon. Under the circumstances presented, we agree with both lower courts that the officer’s action in touching defendant’s sweatshirt was reasonable. The order of the Appellate Division should be affirmed.

At about 3:00 a.m., on February 20, 1992, two uniformed police officers, Officer Ronda and Officer Caban, were patrolling in a marked police car in the Bronx. Seeing a livery cab go through a red light on the Grand Concourse, the officers pulled the cab over. As the police car came to a stop, both officers noticed defendant — the sole passenger in the cab — shift from his seat behind the driver to the middle of the backseat. Defendant’s movement drew the attention of both officers who thought it was "unusual.”

Although the street was brightly lit, it was 3:00 a.m. and Officer Ronda carried a flashlight. While the cab driver was handing over his paperwork, Officer Ronda shone his light into the cab, to see the occupants’ hands, paying "special attention” to defendant.

Officer Ronda then noticed that defendant was "wearing a large object protruding from his chest.” Defendant wore a sweatshirt and an unbuttoned leather coat over what Officer Ronda believed to be a bulletproof vest, the outline of which was visible. Officer Ronda was familiar with the appearance of bulletproof vests because he wore one every day and had observed his fellow officers wearing them. As the officer later testified, he knew "what a vest looks like when it’s sitting up on somebody’s chest.”

The rear windows of the cab were closed. Opening the cab’s left rear door, Officer Ronda leaned his head in and asked, "What do you got on there? What do you got on there?” Defendant twice replied, "I don’t have anything on.” Defendant’s evasive denials raised Officer Ronda’s suspicions since he still believed the defendant was wearing a bulletproof vest. As the officer later testified on cross-examination:

"Q: It was only after touching the vest when he drops his hands that you then fear for your safety?
"A: Well, it was after I asked him the questions and he said — and he said that he wasn’t wearing anything, that’s when my suspicion was arisen.”

Believing that defendant was "avoiding” him, Officer Ronda then touched defendant on the chest, where he believed the bulletproof vest to be, and felt a very heavy "Kevlar” vest. At this moment, defendant "tensed up” and threw his hands to his sides with his palms down on the seat. His attention drawn to where the defendant had suddenly pressed his hands, Officer Ronda looked down and saw a bulge in the right-hand pocket of appellant’s leather coat which lay flush on the seat. At that point, fearing for his safety, the officer grabbed the pocket, felt a gun, and called to his partner for assistance.

Officer Caban grabbed defendant’s arm while Officer Ronda removed a loaded, nickel-plated .380 caliber semiautomatic handgun from appellant’s coat pocket. It was later discovered that this same gun was the weapon used to kill Mark Santiago, a 16-year-old male, about three weeks earlier on February 1, 1992. At that time, Officers Ronda and Caban were unaware that defendant had previously been identified by two witnesses in connection with an investigation into the murder of Mark Santiago.

Defendant was convicted, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. On appeal, the Appellate Division unanimously affirmed the conviction and held that Officer Ronda’s touching of the sweatshirt was "justified by the taxi having run a red light, defendant’s movements in the back seat, the officer’s observation that defendant appeared to be wearing a bulletproof vest, and defendant’s refusal to answer the officer’s question as to what he was wearing” (216 AD2d 174, 175). The Appellate Division also stated that defendant’s hand movements, throwing "his hands to his sides in an attempt to conceal a bulge in his coat,” gave Officer Ronda "a reasonable concern for his safety,” and thus justified the subsequent search of the defendant’s pocket (216 AD2d, at 175).

The touchstone of any analysis of a governmental invasion of a citizen’s person under the "Fourth Amendment and the constitutional analogue of New York State is reasonableness.” (People v Chestnut, 51 NY2d 14, 22, n 7; People v Moore, 32 NY2d 67, 69.) A determination of reasonableness turns upon the facts of each case (Chestnut, 51 NY2d, at 22). Since the livery cab had gone through a red light, there is no question that the stop was appropriate (People v Ingle, 36 NY2d 413). Under the facts here, the frisk of the defendant was also appropriate.

A "frisk,” defined as a "pat-down” of the outer clothing of a suspect, may be justified on less than what would be required for an arrest. (People v Rivera, 14 NY2d 441, 446; People v Moore, 32 NY2d 67, 70, supra.) As this Court explained in Rivera:

"If we recognize the authority of the police to stop a person and inquire concerning unusual street events we are required to recognize the hazards involved in this kind of public duty. The answer to the question propounded by the policeman may be a bullet; in any case the exposure to danger could be very great. We think the frisk is a reasonable and constitutionally permissible precaution to minimize that danger.” (14 NY2d, at 446.)

Yet the propriety of a frisk is not automatic. The officer must have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety (see, People v Carney, 58 NY2d 51; see also Terry v Ohio, 392 US 1). The question remains whether the circumstances in this case support a reasonable suspicion that defendant was armed or dangerous. We think the lower courts were correct that they do.

The facts giving rise to the constitutionally permissible intrusion by the officer are not negated by the officer’s testimony that, at the point leading up to the touching, he did not fear for his safety. As this Court noted in People v Moore:

"[W]e attach no significance to the fact that at the suppression hearing the arresting officer did not articulate any feeling of fear for his own safety or for the safety of others at the time of the search. There was in this situation good cause for such fear and that alone may be sufficient in a proper case.” (32 NY2d, at 72; see also, People v Clee, 89 AD2d 188, 191, appeal dismissed 61 NY2d 899.)

While the officer here did not indicate that he had a specific fear that the defendant was armed and dangerous, he expressly testified that he became suspicious based upon the facts he had observed.

For example, the officer clearly testified that he felt that the defendant’s movement in the rear seat immediately following the traffic stop was "unusual” causing the officer to pay "attention” to defendant. When the livery cab was stopped by the police, the defendant, who was sitting in the backseat directly behind the driver, shifted over to the middle of the backseat. The officer further testified that his "suspicion was arisen” when the defendant denied that he was wearing a bulletproof vest when the officer was convinced that the opposite was true. The officer’s conclusion was based upon his years of experience in wearing a bulletproof vest every day and observing his fellow officers also wearing protective vests.

Generally, a bulletproof vest is designed to prevent the penetration of bullets (Penal Law § 270.20 [2]; cf., Linegar v Armour of Am., 909 F2d 1150, 1154 [8th Cir 1990]). Although wearing a bullet proof vest is not, itself, illegal, this Court has expressly noted the inherent linkage between a vest and possession of a firearm. In People v Smith (59 NY2d 454), we held that while defendant’s crime (passing through a subway gate without paying) "was not one suggestive of the presence of a weapon, the fact that defendant was wearing a bullet-proof vest certainly was, and was enhanced by his denial of the fact” (59 NY2d, at 459). Consequently, we held that the search of defendant’s briefcase was permissible.

Although a bulletproof vest is properly linked to the inference that the wearer might be carrying a gun, more is usually required to justify a frisk of the suspect (People v De Bour, 40 NY2d 210, 216 ["innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand”]). Here, the frisk was undertaken only after defendant’s unusual movement immediately following the valid traffic stop, the defendant’s evasive denials about his bulletproof vest and the officer’s observation of what his personal experience taught him was a bulletproof vest on a person.

Accordingly, the order of the Appellate Division upholding the defendant’s conviction should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed.


text:
    [672 NE2d 584, 649 NYS2d 359]
    Theresa Albright, Individually and as Parent and Guardian of Donald Albright, an Infant, Appellant, v Harlen W. Metz, Jr., et al., Respondents, et al., Defendant.
    Argued September 12,1996;
    decided October 17, 1996

      POINTS OF COUNSEL

      LaFave & Associates, Delmar (Patrick J. Higgins of counsel), for appellant.
    I. The landfill and mine are not entitled to the immunity of General Obligations Law § 9-103 on public policy grounds or under the Iannotti test adopted by this Court. (Iannotti v Consolidated Rail Corp., 74 NY2d 39; Testani v Northshore Equestrian Ctr., 156 Misc 2d 1031; Smith v State of New York, 124 AD2d 296; Ferres v City of New Rochelle, 68 NY2d 446; Bragg v Genesee County Agric. Socy., 84 NY2d 544; Baisley v State of New York, 163 AD2d 502; McGregor v Middletown School Dist. No. 1, 190 AD2d 923; Ackermann v Town of Fishkill, 201 AD2d 441; Pulis v T. H. Kinsella, Inc., 156 Misc 2d 499, 204 AD2d 976; Wiggs v Panzer, 187 AD2d 504.) II. The Court below erred when it expanded the definition of an occupant under General Obligations Law § 9-103 to include Metz Contracting, an entity which merely performed services at the landfill and mine, and had no attributes of ownership or control of the landfill and mine. (Morris v Snappy Car Rental, 84 NY2d 21; Iannotti v Consolidated Rail Corp., 74 NY2d 39; Adams v Rochester Gas & Elec. Corp., 191 AD2d 960; Bowles v Kawasaki Motor Corp. USA, 179 AD2d 299.) III. Issues of fact bar summary judgment dismissing appellant’s negligence claims against Metz Contracting.

      James E. Conway, Albany, and Robert A. Murphy, Jr., for Harlen W. Metz, Jr., respondent.
    I. Defendant-respondent, Harlen W. Metz, Jr., is entitled to the immunity afforded by General Obligations Law § 9-103. (Bragg v Genesee County Agric. Socy., 84 NY2d 544; Iannotti v Consolidated Rail Corp., 74 NY2d 39; McGregor v Middletown School Dist. No. 1, 190 AD2d 923; Reid v Kawasaki Motors Corp., 189 AD2d 954; Dean v Glens Falls Country Club, 170 AD2d 798; Hinchliffe v Orange & Rockland Utils. Co., 216 AD2d 528; Wiggs v Panzer, 187 AD2d 504; Fenton v Consolidated Edison Co., 165 AD2d 121; Hoffman v Joseph R. Wunderlich, Inc., 147 AD2d 807.) II. Plaintiff-appellant has failed to demonstrate a private cause of action based on statutory violations separate from his negligence claim. (Barker v Kallash, 63 NY2d 19.)

      Donohue, Sabo, Varley & Armstrong, P. C., Albany (Christine D. Hanlon of counsel), for H.W. Metz General Contracting, Inc., respondent.
    I. Defendant-respondent, H.W. Metz General Contracting, Inc., is entitled to immunity in accordance with General Obligations Law § 9-103. (Iannotti v Consolidated Rail Corp., 74 NY2d 39; Ferres v City of New Rochelle, 68 NY2d 446; Dean v Glens Falls Country Club, 170 AD2d 798; Baisley v State of New York, 163 AD2d 502; Meyer v County of Orange, 129 AD2d 688; Reid v Kawasaki Motors Corp., 189 AD2d 954; Wiggs v Panzer, 187 AD2d 504; McGregor v Middletown School Dist. No. 1, 190 AD2d 923; Hoffman v Joseph R. Wunderlich, Inc., 147 AD2d 807, 74 NY2d 612; Pulis v T. H. Kinsella, Inc., 156 Misc 2d 499, 204 AD2d 976.) II. There is no evidence that Metz Contracting either owned the property in question or created a dangerous condition thereon. (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Garlock v Penn Cent. Transp. Co., 53 AD2d 1006; Barnaby v Rice, 75 AD2d 179, 53 NY2d 720; Monroe v City of New York, 67 AD2d 89; Goslin v La Mora, 137 AD2d 941; Hesch v Seavey, 188 AD2d 808; Robinson v Burlingame, 177 AD2d 848; Herman v State of New York, 63 NY2d 822; Walter v State of New York, 150 Misc 2d 352, 185 AD2d 536.) III. The sole proximate cause of plaintiff’s injuries was his own actions and/or assumption of risk. (Nieves v Holmes Protection, 56 AD2d 914; Sewar v Gagliardi Bros. Serv., 51 NY2d 752; Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 46 NY2d 770; Nadboy v Kaplan, 162 AD2d 666; Wogcicki v Elbert Enters., 153 AD2d 481, 75 NY2d 955; Maddox v City of New York, 66 NY2d 270; Franco v Zingarelli, 72 AD2d 211; Lamey v Foley, 188 AD2d 157; Turcotte v Fell, 68 NY2d 432.)
   OPINION OF THE COURT

Smith, J.

Plaintiff was injured when he fell some 35 feet while riding his motorbike. The central issue in this case is the suitability of the property for motorbiking. If the property was suitable, defendants would be immune from liability for ordinary negligence as provided by General Obligations Law § 9-103. We conclude that the land was suitable for motorbiking and affirm the order of the Appellate Division.

In 1976, defendant Harlen W. Metz, Jr., purchased over four acres of property adjacent to Spawn Hollow Road in Bethlehem, New York. It is undisputed that Metz utilized the property exclusively as a gravel mine prior to 1988. The mining activity during this period resulted in the creation of earthen slopes above the pit which ran along the perimeter of the property. A similar earthen path, or berm, had previously existed on the northern boundary of the property.

In April of 1988, Metz was issued a permit by the New York State Department of Environmental Conservation (DEC) to use the property as a gravel mine and as a "solid waste management facility,” or landfill, in accordance with 6 NYCRR part 360. Although active mining or excavation of the property was discontinued in approximately 1989 or 1990, gravel from the property was stockpiled and later used to cover the landfill material. .

In April of 1991, the plaintiffs son rode his motorized dirt bike up the road from his home and entered the northwest corner of the Metz landfill as he had done many times before, including the previous day, without incident. As he reached the top of the path that ran up the earthen berm, his bike suddenly plunged into thin air before plummeting almost 35 feet into the bed of the landfill.

Plaintiff filed this personal injury action against defendants Metz and H.W. Metz General Contracting, Inc. Metz and Metz Contracting subsequently moved for summary judgment dismissing plaintiffs complaint based upon General Obligations Law § 9-103. By cross motion, plaintiff sought to dismiss defendants’ affirmative defense premised on General Obligations Law § 9-103. In opposition to defendants’ motion, plaintiff argued that many people in the area had ridden motorbikes in and around the landfill for years and that defendants were grossly negligent for not restricting entry into the area and for failing to warn of the alleged danger. Supreme Court granted defendants’ summary judgment motion, concluding that the property was suitable for motorbiking and that General Obligations Law § 9-103 provided defendants with immunity from liability.

The Appellate Division affirmed. It found "abundant evidence of prior public recreational use of the Metz landfill” (217 AD2d 123, 127) and held:

"Based upon the undisputed evidence of the past public recreational use of the Metz landfill to ride dirt bikes and other motorized vehicles to demonstrate the suitability of the property for such use, and in the absence of any evidence to demonstrate that the landfill operation actually detracted from the property’s suitability for recreational purposes, we conclude that the property is suitable for the recreational use in which plaintiff’s son was engaged when he was injured” (id., at 127-128).

On appeal, plaintiff contends a court must examine the legal suitability of property under General Obligations Law § 9-103 by assessing the land’s general characteristics and physical attributes rather than past public use for recreational purposes. Plaintiff also contends that General Obligations Law § 9-103 should not be extended to protect owners of regulated and restricted lands such as the waste disposal site at issue here. Finally, plaintiff contends that the mere presence of defendant Metz Contracting on the property is insufficient to trigger the statute. Under plaintiff’s theory, only those entities and individuals with the indicia of ownership and control may rely on General Obligations Law § 9-103. Defendants oppose each of plaintiff’s contentions which were all rejected by the Appellate Division.

Our previous rulings in Bragg v Genesee County Agric. Socy. (84 NY2d 544) and Iannotti v Consolidated Rail Corp. (74 NY2d 39) are dispositive of the primary issue on the instant appeal.

General Obligations Law § 9-103 "grants immunity for ordinary negligence to landowners who permit members of the public to come on their property to engage in several enumerated recreational activities, including motorbiking” (Bragg, supra, 84 NY2d, at 546-547). In Bragg, this Court stated that "the statute properly applied when (1) the plaintiff is engaged in one of the activities identified in section 9-103 and (2) the plaintiff is recreating on land suitable for that activity” (Bragg, supra, 84 NY2d, at 551-552).

Here, it is undisputed that plaintiff was engaged in an activity included within section 9-103 when he was injured — motorbiking (Iannotti, supra, 74 NY2d, at 42, n 1). Thus, the first prong of the test is satisfied.

The statute protects landowners against claims of ordinary negligence and, as the lower courts determined, there is no evidence of willful or malicious failure on the part of Metz or Metz Contracting (General Obligations Law § 9-103 [2] [a]). Thus, in this case, our inquiry must focus on whether the property might be deemed suitable for the recreational use in which plaintiff’s son was participating when his accident occurred.

In Iannotti (74 NY2d 39, supra), this Court articulated the elements a court must consider to determine the suitability of property for application of General Obligations Law § 9-103: whether the premises are the "type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation” (id., at 45).

A substantial indicator that property is "physically conducive to the particular activity” is whether recreationists have used the property for that activity in the past; such past use by participants in the sport manifests the fact that the property is physically conducive to it (see, Iannotti, supra, 74 NY2d, at 46-47; see also, Bragg, supra, 84 NY2d, at 547). It is clear that motorbikers used this property for a long period of time before the accident here. Thus, as to the first element of the Iannotti test, plaintiff’s "abundant evidence” of past recreational use of the Metz landfill for motorbiking clearly evinces that the property is physically conducive to that activity.

Despite such evidence here, however, plaintiff contends that the Metz landfill was never suitable for motorbiking because the regulation of the landfill by the DEC precludes a finding that the property was appropriate for such recreational use. Thus, plaintiff argues that the second prong of the test for suitability set forth in Iannotti (74 NY2d 39, supra) is not satisfied. We do not agree.

As stated in the permit issued to Metz by the DEC, the "[s]ite shall be secured against entry when owner or operator are not present.” Fencing of the site was not required however. Although a "site” is defined under the regulations as "the geographically contiguous property of a solid waste management facility and includes the land area of that facility and its access roads, appurtenances and land buffer areas” (6 NYCRR 360-1.2 [b] [154]), the DEC regulations regarding public access to areas around landfills have little to do with restricting recreational use.

The purpose of 6 NYCRR part 360 "is to regulate solid waste management facilities” (see, 6 NYCRR 360-1.1 [a]). The "Operational requirements for all solid waste management facilities,” as set forth at 6 NYCRR 360-1.14, provide that "[p]ublic access to facilities and receipt, of solid waste may occur only when an attendant is on duty” (6 NYCRR 360-1.14 [c]). Access to and use of the facilities may be controlled by "natural barriers or other suitable means” (6 NYCRR 360-1.14 [d]). The regulations further require a facility owner or operator to establish a "control program” to "assure that only solid waste authorized by the department to be treated, disposed of or transferred at the facility is being treated, disposed of or transferred at that facility” (6 NYCRR 360-1.14 [e] [1]).

These access regulations are clearly targeted at unauthorized dumping in the facility rather than banning potential public recreational use of natural barriers, access roads or land buffer areas which are distinct and apart from the landfill itself. We further note that even the guidelines governing the regulation of hazardous waste management facilities refer to the prevention of unknowing and/or unauthorized entry into "the active portion” of the facility (6 NYCRR 373-2.2 [f] [1]) defined as "that portion of a facility where treatment, storage or disposal operations are being or have been conducted” (6 NYCRR 370.2 [b] [5]). Of course, the Metz landfill does not fall into the latter "hazardous” category since it was only authorized to accept bricks, concrete, soil, rocks, lumber, trees, brush and stumps.

To the extent plaintiff argues that the land’s suitability must be judged by its "general characteristics” and that the general characteristic of the property at issue is landfill, plaintiff ignores the fact that portions of Metz’s land were not used as landfill and it was in these other areas that plaintiff’s son injured himself while motorbiking. Moreover, while the parties dispute whether the property had been altered during a 24-hour period to create a cliff where none had existed, such a change would not vary the result here. It is the general suitability of the property that governs. In Bragg we stated:

"The statute removes any obligation on the landowner 'to keep the premises safe * * * [and] to give warning of any hazardous condition * * * to persons entering for [recreational] purposes’ (General Obligations Law § 9-103 [1] [a]). If this language is to have any force, suitability must be judged by viewing the property as it generally exists, not portions of it at some given time. Any other test, which requires the owner to inspect the land, to correct temporary conditions or locate and warn of isolated hazards as they exist on a specific day, would vitiate the statute by reimposing on the owner the common-law duty of care to inspect and correct hazards on the land” (Bragg, supra, 84 NY2d, at 552).

When interpreting statutory language, " 'the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle’ ” (Ferres v City of New Rochelle, 68 NY2d 446, 451 [emphasis in original, quoting People v Ryan, 274 NY 149, 152]). As this Court explained:

''The premise underlying section 9-103 is simple enough: outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; more places will be made available if property owners do not have to worry about liability when recreationists come onto their land” (Bragg, supra, 84 NY2d, at 550; see also, Ferres v City of New Rochelle, 68 NY2d 446, 451, supra).

Here, plaintiff’s son was injured while motorbiking on an earthen berm above the Metz landfill pit. Applying General Obligations Law § 9-103 to the facts of this case is consistent with the legislative purposes underlying that statute and the regulations of the DEC.

Plaintiffs remaining contention is that the statute does not protect Metz Contracting from negligence claims arising from its maintenance of the property. The statute reaches "owner[s], lessor[s] or occupant[s]” (General Obligations Law § 9-103 [1]). Thus, three different levels of property interests may be protected against common-law negligence claims arising from injuries to recreationists on real property when the statute applies. Nevertheless, the statute does not protect those who may not be classified as owners, lessors or occupants.

Metz Contracting submitted uncontested proof that it did not own the property and neither party has argued that the company was a lessor. Thus, General Obligations Law § 9-103 is only properly applied to Metz Contracting if it can be deemed an "occupant” under the statute. Plaintiff contends that Metz Contracting is not an occupant since it did not control access to the land or hold the right to exclude people from the property.

Metz’s DEC permit required him to establish procedures to control dumping, disposal and mining in the facility. There is no argument that Metz Contracting, owned and controlled by Metz, functioned as his work crew and agent in managing the property in accordance with the DEC regulations. Thus, Metz Contracting’s authorized presence on the premises was sufficient to bring it within the meaning of occupant in the statute. The record here fully supports the Appellate Division’s determination that General Obligations Law § 9-103 encompasses Metz Contracting.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed, with costs.

      . Section 9-103 of the General Obligations Law provides in pertinent part:
      "1. Except as provided in subdivision two,
      "a. an owner lessee or occupant of premises, whether or not posted as provided in section 11-2111 of the environmental conservation law, owes no duty to keep the premises safe for entry or use by others for * * * motorized vehicle operation for recreational purposes * * * or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes * * *
      "2. This section does not limit the liability which would otherwise exist

        "a. for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.”

      . We note that General Obligations Law § 9-103 applies even "to those who seek to prevent others from using their lands by posting them pursuant to ECL 11-2111” (Bragg, supra, at 551).

      . Compare, Hoffman v Joseph R. Wunderlich, Inc., 147 AD2d 807, lv denied 74 NY2d 612 (no liability when plaintiff was injured riding in the suitable portion of the property that had been used for recreational riding for over 10 years), with Pulis v T. H. Kinsella, Inc., 156 Misc 2d 499, affd on opn below 204 AD2d 976 (liability when plaintiff was injured while driving ATV in an unsuitable portion of the property, the excavation pit).

      . We further note that plaintiff’s son and the rest of her family have received the benefits of the statute through years of recreational use over Metz’s property. Nevertheless, "the statute implicitly contemplates a trade off for the public use: recreationists, if permitted to use the lands of others, must assume the risks of doing so” (Bragg, supra, 84 NY2d, at 550).


author: CIPARICK, J.

text:
    [672 NE2d 589, 649 NYS2d 364]
    Evan R. Dawson, Respondent, v White & Case et al., Appellants.
    Argued September 4, 1996;
    decided October 17, 1996

      POINTS OF COUNSEL

      Hoguet Newman & Regal, LLP, New York City (Laura B. Hoguet of counsel), Winthrop, Stimson, Putnam & Roberts (Edwin J. Wesely of counsel), and White & Case (Thomas McGanney, Claire M. Gallagher and Richard A. Nessler of counsel), for appellants.
    I. The award of goodwill to Dawson was error. (Siddall v Keating, 8 AD2d 44, 7 NY2d 846; Morgan v Schuyler, 79 NY 490; Matter of Silverberg [Schwartz], 75 AD2d 817; Masters v Brooks, 132 App Div 874; Mendelsohn v Equitable Life Assur. Socy., 178 Misc 152, 264 App Div 731; Smith v Posner, 85 Misc 2d 934; Read v Mackay, 47 Misc 435; Weiner v Weiner, 88 Misc 2d 920; Spaulding v Benenati, 57 NY2d 418; Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375.) II. The accounting should include defendant’s unfunded pension liability.

      Morrison Cohen Singer & Weinstein, LLP, New York City (Leslie D. Corwin and Arthur J. Ciampi of counsel), for respondent.
    I. Dawson — like the current partners of White & Case— was entitled to share in the goodwill of White & Case. (Siddall v Keating, 8 AD2d 44, 7 NY2d 846; Litman v Litman, 93 AD2d 695, 61 NY2d 918; Harmon v Harmon, 173 AD2d 98; Stolowitz v Stolowitz, 106 Misc 2d 853; Burns v Burns, 84 NY2d 369; Levitt Corp. v Levitt, 593 F2d 463; Weiner v Weiner, 88 Misc 2d 920; Mendelsohn v Equitable Life Assur. Socy., 178 Misc 152; Spaulding v Benenati, 57 NY2d 418; Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112.) II. White & Case— which was dissolved on June 30, 1988 — had no unfunded pension liability. (Garfield v Greenbaum, Wolff & Ernst, 103 AD2d 709.)
   OPINION OF THE COURT

CIPARICK, J.

In 1988, the law firm of White & Case dissolved and then re-formed without one of its partners, Evan R. Dawson. This appeal presents two questions arising from an accounting pursuant to Partnership Law § 74 of Dawson’s interest in White & Case: (i) whether the law firm possesses goodwill that can be distributed in an accounting proceeding; and (ii) whether the law firm’s unfunded pension plan is a liability of the firm. Based on the facts presented, we conclude that, for purposes of the White & Case partnership accounting, goodwill was not a distributable asset of the partnership and the pension payments were not a partnership liability.

I.

Plaintiff Evan R. Dawson was a partner at the Manhattan law firm of White & Case for nearly 20 years. Sometime before 1988, the firm commenced negotiations with Dawson to persuade him to withdraw as a partner. When the talks reached an impasse, White & Case voted to dissolve the partnership and re-form without Dawson, effective July 1,1988.

Dawson commenced this action against the partnership in dissolution and successor firm, alleging he was wrongfully terminated. In an amended complaint, Dawson asserted causes of action for an accounting, interference with prospective economic advantage, breach of fiduciary duty, conversion, trespass, invasion of privacy, and breach of contract. Dawson moved by order to show cause for a preliminary injunction to prohibit White & Case from interfering with his office and files. White & Case cross-moved to dismiss the accounting cause of action, contending that article sixth of the partnership agreement provided a mechanism for the distribution of Dawson’s interest, and further moved for summary judgment on two of the tort causes of action.

Supreme Court, in granting Dawson’s motion in part and denying White & Case’s cross motion, enjoined White & Case from impeding Dawson’s access to his client files and ruled that summary judgment on the tort causes of action was premature. In addition, the court ordered an accounting pursuant to Partnership Law § 74, concluding that article sixth was not controlling with respect to Dawson’s financial entitlement because it dealt only with the voluntary withdrawal, death or retirement of a partner, not to a partner’s expulsion.

After a hearing, the Special Referee valued the assets of White & Case, including the firm’s goodwill as an asset and excluding the present value of unfunded pension plan benefits as a liability of the dissolved firm. Supreme Court confirmed the report and entered judgment in Dawson’s favor. White & Case subsequently entered a partial satisfaction of judgment, reflecting payment to Dawson of the uncontested portion of the judgment, which consisted of Dawson’s capital account plus interest.

The Appellate Division affirmed, concluding that the partnership possessed distributable goodwill (see, Dawson v White & Case, 212 AD2d 385). The Court noted: "Indeed, that defendant’s remaining partners, after dissolving defendant in order to exclude plaintiff as a partner, immediately reconstituted themselves as a new firm using the same name, address, facilities and client list as the dissolved firm, evidences that defendant in fact had good will to distribute” (id., at 385). The Court also affirmed the exclusion of the pension payments as a liability because "the pension payments were operating expenses for the successor firm contingent upon its profitability. The purported multi-million dollar liability never appeared in any of defendant’s financial statements and was never assessed against either defendant or any of its partners for accounting purposes” (id., at 386). This Court granted White & Case’s motion for leave to appeal and, for the reasons that follow, we now modify.

II.

Before turning to the specific issues on appeal, it is useful to review certain elemental principles of partnership law. Foremost among these, indeed "at the heart of the partnership concept,” is "the principle that partners may choose with whom they wish to be associated.” (Gelder Med. Group v Webber, 41 NY2d 680, 684). In recognition of this principle, we have held that a partnership agreement may contain a termination provision or some other mechanism by which to remove a partner (see, id., at 683). Absent such a mechanism, however, the removal of a partner can be accomplished only through dissolution of the firm, defined as a "change in the relation of the partners caused by any partner ceasing to be associated in the carrying on * * * of the business” (Partnership Law § 60). The White & Case partnership agreement did not contain an express termination provision, and so, in order to remove Dawson, the partners voted to dissolve the firm and then to immediately re-form without him.

This act of dissolution conferred on Dawson the "right to an account of his interest * * * as against the * * * partnership continuing the business” (Partnership Law § 74; see, Partnership Law § 52). When, as in this case, the partnership business is continued after dissolution, the accounting is performed by computing the firm’s assets less its liabilities, with the balance hypothetically apportioned among the partners to fix the former partner’s share of the partnership (see, Partnership Law § 71 [c]; see generally, 2 Bromberg and Ribstein, Partnership § 7.13 [b], at 7:121). At issue on appeal is whether, in the White & Case partnership accounting, goodwill was properly included as an asset of the firm and the pension payments were properly disallowed as a partnership liability.

A.

The first issue is whether White & Case possessed goodwill that was capable of distribution upon dissolution. When applied to law firms, the term "goodwill” refers to the "ability to attract clients as [a] result of [the] firm’s name, location, or the reputation of [its] lawyers” (Black’s Law Dictionary 695 [6th ed]). We conclude that the Special Referee erred in including goodwill as an asset of White & Case in the partnership accounting.

Analysis begins with the statutory instruction that "[i]n settling accounts between the partners after dissolution, * * * subject to any agreement to the contrary * * * [t]he assets of the partnership” include the "partnership property” (Partnership Law § 71 [a] [I] [emphasis added]). By statute, then, the partners are free to exclude particular items from the class of distributable partnership property, and such an agreement will be enforced in an accounting proceeding. Thus, even if a given partnership might be said to possess goodwill, the courts will honor an agreement among partners — whether express or implied — that goodwill not be considered an asset of the firm (see, Matter of Brown, 242 NY 1, 6-7). Elucidating this principle, Judge Cardozo explained:

"Good will, when it exists as incidental to the business of a partnership, is presumptively an asset to be accounted for like any other by those who liquidate the business. * * * The course of dealing, however, can stamp it with a different quality. Partners may contract that good will, though it exist, shall not 'be considered as property or as an asset of the co-partnership’ * * *. The contract may 'be expressly made,’ or it may 'arise by implication, from other contracts and the atits and conduct of the parties’ ” (id., at 6 [citations omitted]).

In Brown, the issue was whether a brokerage company was obligated to account to a former partner for the company’s goodwill even though goodwill was not mentioned in the partnership agreement or in the company’s books, incoming members paid nothing for goodwill, and a recently retired partner did not receive compensation for goodwill. The Court concluded that the trier of fact might infer "from the course of dealing between the partners when new members came in and old ones went out that by tacit understanding there was to be no accounting for good will” (id., at 7). The same conclusion was reached in the context of a law firm dissolution in the case of Siddall v Keating (8 AD2d 44, affd 7 NY2d 846).

The pertinent facts of this case are similar to those of Brown and Siddall: new White & Case partners never paid anything for goodwill; departing partners never received a payment for goodwill; and goodwill was not listed as an asset in the firm’s financial statements. Indeed, the partners’ intention not to credit goodwill is even more apparent in this case than in either Brown or Siddall. The White & Case partnership agreement contained the following provisions: "It is expressly understood and agreed that no consideration has been or is to be paid for the Firm name or any good will of the partnership, as such items are deemed to be of no value” (art fourth [c]); and "The computation of the amount with which a Former Partner shall be charged or credited * * * shall exclude any value for the good will of the partnership or the Firm name, as such items are deemed to be of no value” (art sixth [d]).

Dawson attempts to avoid these provisions by claiming they are inapplicable. He contends that article fourth relates solely to White & Case’s 1978 "sale and purchase” arrangement by which the partners reallocated their partnership percentages and that article sixth only applies in the event of a partner’s withdrawal, retirement or death, not to this expulsion situation. We disagree and find that the partnership agreement reflects the binding written expression of the terms under which these partners assented to associate with each other and evinces their intention that goodwill be deemed "of no value.” Its provisions reinforce our holding that, for purposes of this partnership accounting, White & Case lacks distributable goodwill.

We note that the holding in this case is based on the specific facts presented, and should not be construed as a prohibition against the valuation, in the appropriate case, of law firm goodwill (see, e.g., Harmon v Harmon, 173 AD2d 98, 105-107 [value of goodwill includable in marital estate for purposes of equitable distribution award]; cf., Burns v Burns, 84 NY2d 369, 374-375 [for equitable distribution award, value of legal practice not limited to capital account]). In addition, the existence of law firm goodwill has been recognized in conjunction with the recent promulgation of Code of Professional Responsibility DR 2-111 (A), which authorizes the sale of "a law practice, including good will,” by a "lawyer retiring from a private practice of law, [or] a law firm one or more members of which are retiring from the private practice of law with the firm” (see, 22 NYCRR 1200.15-a [a]).

To the extent that dictum in Siddall stands for the proposition that a professional business, as a matter of law, cannot have any goodwill apart from the goodwill of its constituent members, we note that this rationale has been rejected by this Court in a different context (see, Spaulding v Benenati, 57 NY2d 418, 422-424, supra [enforcing sale of dentistry practice goodwill]; see generally, Pratt, Reilly and Schweihs, Valuing Small Businesses and Professional Practices, at 409-415 [2d ed]) and has been superseded by the economic realities of the contemporary practice of law, illustrated by attorney advertising, internationalization of law firms, and other professional developments (see, Spayd v Turner, Granzow & Hollenkamp, 19 Ohio St 3d 55, 61-62, 482 NE2d 1232, 1237-1238). In short, the ethical constraints against the sale of a law practice’s goodwill by a practicing attorney no longer warrant a blanket prohibition against the valuation of law firm goodwill when those ethical concerns are absent.

B.

Lastly, we hold that the future pension payments pursuant to White & Case’s unfunded pension plan were properly disallowed as a partnership liability. White & Case never included the unfunded pension plan as a liability in the firm’s financial statements. In addition, under the terms of the partnership agreement, pension payments could be made only out of partnership profits and could not exceed 15% of profits. Based on these facts, we agree with the Appellate Division that the pension payments were not a liability of the firm in dissolution, but "were operating expenses for the successor firm contingent upon its profitability” (Dawson v White & Case, supra, 212 AD2d, at 386).

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be modified, without costs, and the case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

Judges Simons, Titone, Bellacosa and Smith concur; Chief Judge Kaye and Judge Levine taking no part.

Judgment appealed from and order of the Appellate Division brought up for review modified, etc.

      . While partners are statutorily empowered to dissolve the partnership at any time (see, Partnership Law § 62 [2]), wrongfully dissolving partners may be liable to the expelled partner for breach of the partnership agreement when the partnership is not at will (see, Partnership Law § 69 [2]; Napoli v Domnitch, 18 AD2d 707, 708, affd 14 NY2d 508). Whether such a breach occurred in this case is not raised on appeal.

      . The term "goodwill” represents an elusive concept, but is broadly defined as "the advantage or benefit, which is acquired by an establishment, beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patronage and encouragement, which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices” (Story, Partnership § 99, at 170, quoted in Spaulding v Benenati, 57 NY2d 418, 424, n 3).