author: Smith, J.

text:
    [623 NE2d 6, 603 NYS2d 285]
    Advanced Refractory Technologies, Inc., et al., Appellants, Michael C. O’Laughlin, Plaintiff, v Power Authority of the State of New York, Respondent.
    Argued September 1,1993;
    decided October 12, 1993

      POINTS OF COUNSEL

      Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo (Victor T. Fuzak, Richard F. Campbell and Kevin M. Kearney of counsel), and Douglas J. Crowley, Corporation Counsel of Niagara Falls (Thomas M. O’Donnell of counsel), for appellants.
    I. The dismissal of appellants’ plenary action is in clear contravention of controlling law. (Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1; Matter of First Natl. City Bank v City of New York Fin. Admin., 36 NY2d 87; Matter of Golornb v Board of Educ., 92 AD2d 256; Long Is. Coll. Hosp. v Axelrod, 118 AD2d 177; Press v County of Monroe, 50 NY2d 695; International Paper Co. v Sterling Forest Pollution Control Corp., 105 AD2d 278; Matter of Allied Sanitation v Aponte, 142 AD2d 511, 72 NY2d 810; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400.) II. The dismissal of appellants’ breach of contract causes of action is patently erroneous. (Dolman v United States Trust Co., 2 NY2d 110; Matter of Havemeyer, 17 NY2d 216; Taylor v Muss, 13 AD2d 245, 11 NY2d 685; Arrigoni v Consolidated Rail Corp., 155 AD2d 357, 75 NY2d 1004; Kasen v Morrell, 6 AD2d 816; New York Higher Educ. Assistance Corp. v Woods, 43 AD2d 763, 38 NY2d 831.) III. The dismissal of appellants’ contract claims is directly contrary to previous decisions of the Fourth Department itself involving these parties and this contract. (Airco Alloys Div., Airco, Inc. v Niagara Mohawk Power Corp., 65 AD2d 378; New Era Elec. Range Co. v Serrell, 252 NY 107.) IV. The dismissal of the promissory estoppel claims was erroneous and is in conflict with established law. (Planet Constr. Corp. v Board of Educ., 7 NY2d 381; Matter of Carney v Newburgh Park Motors, 84 AD2d 599; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; La Porto v Village of Philmont, 39 NY2d 7; Safeway Steel Prods. v Craft Architectural Metals Corp., 183 AD2d 452; Matter of Rudey v Landmarks Preservation Commn., 182 AD2d 61; Eden v Board of Trustees, 49 AD2d 277; Matter of 1555 Boston Rd. Corp. v Finance Adm’r, 61 AD2d 187; Matter of Young v Supervisor of Town of Lloyd, 159 AD2d 828, 76 NY2d 761.) V. The order dismissing the plenary action should be reversed and judgment granted that the charge for replacement power must be cost limited. VI. The mandate of Niagara Redevelopment Act is clear. (Perrin v United States, 444 US 37; Reiter v Sonotone Corp., 442 US 330; Ferres v City of New Rochelle, 68 NY2d 446; People v Ryan, 274 NY 149; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Metropolitan Transp. Auth. v Federal Energy Regulatory Commn., 796 F2d 584; Matter of Association of Surrogates & Supreme Ct. Reporters v Evans, 102 Misc 2d 883, 86 AD2d 870; Matter of Schinasi, 227 NY 252; Shoreham-Wading Riv. Cent. School Dist. v Town of Brookhaven, 107 AD2d 219.) VII. In peremptorily adopting the erroneous Occidental decision, the Fourth Department violated elemental principles of statutory interpretation. (Occidental Chem. Corp. v Power Auth., 786 F Supp 316; City of New York v New York City Ry. Co., 193 NY 543; Shoreham-Wading Riv. Cent. School Dist. v Town, of Brookhaven, 107 AD2d 219, 65 NY2d 990; Power Auth. of State of N. Y. v Federal Energy Regulatory Commn., 743 F2d 93; Matter of Bliss v Bliss, 66 NY2d 382; New York State Bridge Auth. v Moore, 299 NY 410; Allen v Stevens, 161 NY 659; Orange & Rockland Utils, v Amerada Hess Corp., 59 AD2d 110; Matter of Anderson v Board of Educ., 46 AD2d 360, 38 NY2d 897; Matter of Capital Cities Communications v State Tax Commn., 65 AD2d 25.) VIII. Without analysis, reason or response to appellants’ arguments, the Fourth Department summarily held section 1005 (5) of the Public Authorities Law to be inapplicable.

      Arthur T. Cambouris, Charles M. Pratt, Sarah J. Berger, Ann M. Quigley and Michael A. Oxman, New York City, for respondent.
    I. The Court below correctly found that the Niagara Redevelopment Act does not mandate that replacement power be sold at cost. (Occidental Chem. Corp. v Power Auth., 786 F Supp 316; Sega v State of New York, 60 NY2d 183; People ex rel. Harris v Sullivan, 74 NY2d 305; Power Auth. of State of N. Y. v Federal Energy Regulatory Commn., 743 F2d 93; People v Boston, 75 NY2d 585; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; Garcia v United States, 469 US 70; Zuber v Allen, 396 US 168; Consumer Prod. Safety Commn. v GTE Sylvania, 447 US 102.) II. The Court below correctly found that Public Authorities Law § 1005 (5) does not mandate a replacement power rate set at cost. (Auer v Dyson, 110 Misc 2d 943, 125 Misc 2d 274, 112 AD2d 803.) III. The Fourth Department’s nonfinal order of March 8, 1991 does not "necessarily affect” the final judgment of that Court and is not reviewable by this Court under CPLR 5501 (a) (1). (People ex rel. Vega v Smith, 66 NY2d 130.) IV. The Court below properly found that any rights petitioners may have stem from statute rather than contract. (Lupinski v Village of Ilion, 59 AD2d 1050; Shields v School of Law of Hofstra Univ., 77 AD2d 867; Dolman v United States Trust Co., 2 NY2d 110; Airco Alloys Div., Airco, Inc. v Niagara Mohawk Power Corp., 65 AD2d 378.) V. Petitioners’ challenge to the Authority’s rates was cognizable in and properly converted to a CPLR article 78 proceeding. (Press v County of Monroe, 50 NY2d 695; Long Is. Coll. Hosp. v Axelrod, 118 AD2d 177; Matter of First Natl. City Bank v City of New York Fin. Admin., 36 NY2d 87; Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1; Matter of Krumsiek v Regan, 91 AD2d 1134.) VI. The causes of action for promissory estoppel were correctly dismissed because the Authority was acting in its governmental capacity when it modified the replacement power rate and two essential elements of an estoppel claim have not and cannot be demonstrated. (D’Angelo v Triborough Bridge & Tunnel Auth., 111 Misc 2d 231, 106 AD2d 128, 65 NY2d 714; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Granada Bldgs. v City of Kingston, 58 NY2d 705; Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Parochial Bus Sys. v Board of Educ., 60 NY2d 539; Matter of Nationwide Cellular Serv. v Public Serv. Commn., 180 AD2d 24; Murray, Hollander, Sullivan & Bass v HEM Research, 111 AD2d 63.)
   OPINION OF THE COURT

Smith, J.

The primary issue on this appeal is whether 16 USC § 836 (the Niagara Redevelopment Act) and the contracts entered into pursuant to that act, as well as Public Authorities Law § 1005 (5), require the Power Authority of the State of New York (PASNY) to sell 445,000 kilowatts of replacement power produced by the Niagara Project at the cost of producing that power. We hold that nothing in the plain language of the Niagara Redevelopment Act, the contracts entered into pursuant to that act, or Public Authorities Law § 1005 (5) compels PASNY to sell that replacement power at cost.

Pursuant to a 1909 treaty between the United States and Canada, it was agreed that the United States could divert some of the flow of the Niagara River waters for the purpose of generating electric power. By its terms, that 1909 treaty was valid until 1971. Pursuant to a Federal Power Commission (FPC) license, the Niagara Falls Power Company, the predecessor to the Niagara Mohawk Power Corporation (Niagara Mohawk), used that flow for a power project development, Project 16, at Niagara Falls. Project 16 consisted of the Schoellkopf and Adams stations and related facilities, which, together, produced approximately 445,000 kilowatts of power. The Niagara Falls Power Company, and later, Niagara Mohawk, sold the power produced by Project 16 to industries in the western New York area.

Another treaty between the United States and Canada made additional flow of the Niagara River waters available for use by the United States for power production. In 1941, the FPC granted the Niagara Falls Power Company the right to use that additional flow at the Project 16 facilities.

In 1950, the United States and Canada entered into yet another treaty with respect to the use of the flow of the Niagara River waters. That treaty authorized the diversion of additional flow by each country for the production of electric energy. Based on the provisions of the various treaties between the United States and Canada, the Niagara Falls Power Company sold approximately 445,000 kilowatts of hydroelectric power generated at Project 16 to various industries in the BufFalo-Niagara Falls area.

On June 7, 1956, the cliff face above the Schoellkopf station of Project 16 collapsed, causing a rockslide that substantially destroyed that station. All hydroelectric generation at Project 16 was interrupted and many of the industries lost their primary source of inexpensive power. The next year, in an attempt to redevelop the Niagara River water flow for generation purposes, Congress enacted the Niagara Redevelopment Act.

The Niagara Redevelopment Act authorizes the Federal Energy Regulatory Commission, formerly the FPC, to issue a license to PASNY to construct and operate a power project to replace the 445,000 kilowatts of power produced by Niagara Mohawk prior to the destruction of the Schoellkopf station. As a condition of issuing the license, and in order to restore low-cost power to western New York industries, the act provides:

"The licensee shall contract * * * to sell to the licensee of Federal Energy Regulatory Commission project 16 * * * four hundred and forty-five thousand kilowatts of the remaining project power * * * in order as nearly as possible to restore low power costs to such industries and for the same general purposes for which power from project 16 was utilized” (16 USC § 836 [b] [3]).

Pursuant to that authorization, on February 10, 1961, PASNY constructed generating facilities on the Niagara River and entered into Contract NS-1 with Niagara Mohawk. PASNY agreed to sell to Niagara Mohawk 445,000 kilowatts of replacement power to restore the 445,000 kilowatts that Niagara Mohawk once produced at Project 16 and sold to the western New York industries.

Contract NS-1 incorporates the Niagara Redevelopment Act by reference and authorizes Niagara Mohawk to resell the replacement power to industrial customers, including appellants, under separate resale agreements between Niagara Mohawk and those industrial customers. Part E of Schedule NP-S1 of the contract states further that "[t]he rate schedules * * * shall be subject to successive modification by the Authority through the promulgation of superseding rate schedules.” The resale agreements between Niagara Mohawk and appellant industrial customers incorporate this rate provision.

On September 26, 1989, citing the declining value of the dollar, PASNY proposed to gradually increase the rate for the replacement power over a seven-year period. On December 21, 1989, PASNY resolved to increase the rates for replacement power for the years 1990 and 1991. On April 27, 1993, PASNY resolved to further increase the rates for replacement power for the remaining years.

Appellants and others commenced an action challenging the rate increases, alleging breach of contract and promissory estoppel causes of action. Appellants argued that the increased rates exceeded PASNY’s operating costs, and, thus, violated the Niagara Redevelopment Act and the contracts entered into pursuant that act. Appellants also argued that Public Authorities Law § 1005 (5) prohibited PASNY from charging rates which generate revenue in excess of the cost of producing the replacement power. Supreme Court denied PASNY’s motion to dismiss the action. The Appellate Division determined that estoppel was not available here against a government entity, and dismissed the promissory estoppel causes of action; the Court also dismissed the contract causes of action, concluding that the proper remedy for challenging PASNY’s act of rate-making was a CPLR article 78 proceeding (171 AD2d 1031). Accordingly, the Appellate Division converted so much of the action as alleged breach of contract to an article 78 proceeding with leave to the parties to serve an appropriate petition. This Court dismissed, as nonfinal, appellants’ motion for leave to appeal (see, 78 NY2d 949).

Appellants served their article 78 petition, maintaining that the Niagara Redevelopment Act, the contracts issued pursuant thereto, and Public Authorities Law § 1005 (5) require PASNY to sell the replacement power to them at cost, without a profit. Supreme Court determined that PASNY is obligated by the act to sell replacement power at cost, and is prohibited by section 1005 from charging rates which produce revenue in excess of cost. The court ordered a hearing to determine the cost to PASNY of producing replacement power. The Appellate Division reversed, on the law, and dismissed the petition, concluding that the Niagara Redevelopment Act does not require PASNY to sell replacement power at cost, and that Public Authorities Law § 1005 (5) creates no rate protection for industrial consumers (187 AD2d 1027). This Court granted leave to appeal, bringing up for review both Appellate Division orders (81 NY2d 704), and we now affirm.

At the outset, appellants contend that the Appellate Division erred in dismissing their breach of contract and promissory estoppel claims. Appellants assert that since Contract NS-1 and subsequent settlement agreements between PASNY and Niagara Mohawk incorporate by reference the terms of the Niagara Redevelopment Act, and the resale agreements incorporate the terms of Contract NS-1, PASNY breached those agreements by fixing new rates in excess of cost. Appellants argue further that their promissory estoppel claims should not have been dismissed because by selling replacement power pursuant to a contract, respondent was not engaged in a governmental function. We disagree.

The Appellate Division properly dismissed appellants’ promissory estoppel causes of action. Absent an unusual factual situation, "estoppel is not available against a governmental agency engaging in the exercise of its governmental functions” (D’Angelo v Triborough Bridge & Tunnel Auth., 65 NY2d 714, 715-716; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33). PASNY is a governmental agency existing pursuant to Public Authorities Law § 1002. "[A]n authority, in setting * * * charges for the use of its facilities, [is] engaged in a governmental function” (Carey Transp. v Triborough Bridge & Tunnel Auth., 38 NY2d 545, 551). In setting rates for the sale of hydroelectric power, PASNY was engaged in a governmental function. We discern no unusual factual situation that would warrant a different result. Thus, we conclude that the doctrine of estoppel is not available in this case.

As for the claims originally alleged in contract, the Appellate Division correctly determined that they should be resolved in a proceeding commenced under CPLR article 78 (see, Press v County of Monroe, 50 NY2d 695, 701-702). The provisions of a Federal act, when incorporated by reference into a contract between the parties, are part of the agreement and, indeed, are controlling to the extent inconsistent with other provisions of the contract (Rodriguez & Co. v Moore-McCormack Lines, 32 NY2d 425, 433, n 2; see generally, 22 NY Jur 2d, Contracts, § 226). Appellants allege a violation of the Niagara Redevelopment Act, incorporated by reference into Contract NS-1 and subsequent agreements, but the act requires only "low power costs.”

Appellants’ reliance on Airco Alloys Div., Airco, Inc. v Niagara Mohawk Power Corp. (65 AD2d 378) is misplaced. In that case, the plaintiffs, major industrial facilities in western New York and purchasers of electric power from Niagara Mohawk, sought a mandatory injunction and money damages arising from Niagara Mohawk’s alleged breach of Contract NS-1 between Niagara Mohawk and PASNY. The plaintiffs claimed rights as third-party beneficiaries under the terms of the contract, which incorporated by reference the Niagara Redevelopment Act, and alleged that Niagara Mohawk breached that contract by failing to sell to them all or part of approximately 110,000 kilowatts of replacement power that had been refused by other industries. Holding that New York State courts had jurisdiction over the matter, the Appellate Division stated:

"The language of the complaint describes violations of plaintiffs’ rights under the Act as well as the contract, but the main thrust of the complaint is in contract, which is the basis for the primary relief sought. * * * The claims relating to the contract are the only grounds alleged which would sustain an injunction and money damages, and mere references in the complaint to the Federal act do not divest the State court of its jurisdiction” (id., at 384-385).

Here, however, the focus of the controversy is on an agency’s alleged violation of a Federal statute, not on a breach of an express contractual right, making article 78 an appropriate avenue of redress.

As to the merits of their article 78 proceeding, appellants contend that the plain meaning of the Niagara Redevelopment Act, its legislative history, and PASNY’s actions in keeping the rates for replacement power equivalent to the cost of production for over 30 years require PASNY to limit the rates charged for replacement power to the actual cost of production. Appellants argue further that Public Authorities Law § 1005 (5) prohibits PASNY from generating excess revenue from the sale of the replacement power.

"When [a statute’s] language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of its words” (People ex rel. Harris v Sullivan, 74 NY2d 305, 309). Here, nothing in the plain language of the Niagara Redevelopment Act requires PASNY to sell the power at the cost of production. The statute provides only that PASNY should attempt to restore "low power costs” to industrial consumers in the Niagara Falls area. Similarly, the unambiguous language in the contract between PASNY and Niagara Mohawk and the resale agreements, issued pursuant to the Niagara Redevelopment Act, impose no such requirement. Rather, the contracts authorize PASNY to "successively] modif[y]” the schedule of rates charged for the replacement power through the promulgation of superseding rate schedules.

Nor does the plain language of Public Authorities Law § 1005 (5) prohibit PASNY from charging rates for replacement power which produce revenue in excess of PASNY’s cost of producing that power. Section 1005 (5) provides, in part, that operation of the Niagara and Saint Lawrence hydroelectric projects "shall be considered primarily as for the benefit of the people of the state as a whole and particularly the domestic and rural consumers * * * to secure a sufficiently high load factor and revenue returns * * * at the lowest possible rates.” No similar provision is made for industrial consumers. Moreover, although paragraph (f) provides that PASNY should set rates based on "accurate cost data” and paragraph (h) permits PASNY to change rates based on variations in "operating costs and fixed charges”, nowhere does the statute mandate the sale of replacement power to industrial consumers at the cost of producing that power.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    [623 NE2d 11, 603 NYS2d 290]
    In the Matter of Branford House, Inc., et al., Appellants, v Felice Michetti, as Commissioner of Housing Preservation and Development of the City of New York, et al., Respondents.
    Argued September 8, 1993;
    decided October 12, 1993

      POINTS OF COUNSEL

      Szold & Brandwen, P. C., New York City (Alan G. Blumberg, Eric J. Weisberg and Robert I. Goodman of counsel), for appellants.
    I. The courts of this State have the power to correct an inadvertent clerical error contained in the text of legislation and to implement the true legislative intent by construing the legislation as if the inadvertent clerical error had not been made. (People ex rel. French v Lyke, 159 NY 149;
      McKee Land & Improvement Co. v Williams, 63 App Div 553, 173 NY 630; People ex rel. Fitch v Lord, 9 App Div 458; Matter of Murray, 151 Misc 7, 241 App Div 761; People v Capitol Fuels, 170 Misc 763, 281 NY 728; Grant Co. v Srogi, 71 AD2d 457, 52 NY2d 496; National Org. for Women v Metropolitan Life Ins. Co., 131 AD2d 356, 70 NY2d 939.) II. The legislative history of chapter 803 of the Laws of 1961, and the amendments to the Limited-Profit Housing Companies Law enacted in the years 1959 through 1962, demonstrate conclusively that the word "state” was reinserted in the exemption clause of Private Housing Finance Law § 35 (3) as a result of an inadvertent clerical error. (Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377.) III. Private Housing Finance Law § 35 (3) should be construed as if the clerical error had not been made. Branford is therefore exempt from the requirement that, on dissolution, its surplus, if any, must be paid to the City of New York. IV. If the surplus requirement of Private Housing Finance Law § 35 (3) applied to Branford, its mortgage debt should have been deducted in making the surplus calculation. (New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Matter of Patrolmen’s Benevolent Assn. v City of Buffalo, 50 AD2d 101; May v Washington Cemetery, 29 Misc 2d 1046, 16 AD2d 931; Matter of Powhatan Democratic Club v Curran, 206 Misc 960; Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588.)

      O. Peter Sherwood, Corporation Counsel of New York City (Timothy J. O’Shaughnessy and Kristin M. Helmers of counsel), for
    respondents. I. The language and structure of the Private Housing Finance Law make plain that a limited-profit housing company’s debt to the housing finance agency or municipality is not considered in calculating its surplus. (Sanders v Winship, 57 NY2d 391; Matter of Long v Adirondack Park Agency, 76 NY2d 416; Matter of Friedman-Kien v City of New York, 92 AD2d 827, 61 NY2d 923; Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114; Matter of Johnson v Joy, 48 NY2d 689; Matter of Tommy & Tina v Department of Consumer Affairs, 95 AD2d 724, 62 NY2d 671; Matter of Howard v Wyman, 28 NY2d 434.) II. The word "state” in- Private Housing Finance Law § 35 (3)’s exemption from the surplus requirement was not inserted in the statute by a clerical error and Branford plainly is not within the exemption for recipients of a "state loan”. (Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662;
      Sega v State of New York, 60 NY2d 183; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Murphy v Board of Educ., 104 AD2d 796, 64 NY2d 856; McKee Land & Improvement Co. v Williams, 63 App Div 553, 173 NY 630.)
   OPINION OF THE COURT

Hancock, Jr., J.

This proceeding involves a limited-profit (or Mitchell-Lama) housing company, which voluntarily dissolved by prepaying its subsidized mortgage in order to remove the housing project from City regulation and "go private”. The parties dispute the application and interpretation of Private Housing Finance Law § 35. Section 35 provides that, except for projects aided by a State loan, upon dissolution, any surplus in the housing company’s treasury, after accounting for various expenses, obligations and the housing company’s profit, must be paid to the municipality that granted the housing company a tax exemption.

Petitioners raise two arguments. First, despite the limiting language in section 35 (3) indicating that only projects aided by a State loan are exempt from the surplus requirement, they contend that their project, which was aided by a non-State loan, is exempt from the surplus requirement because the limiting word "state” was accidentally inserted into section 35 when it was recodified in 1961. Second, petitioners argue that, even if they are not exempt from the surplus requirement, section 35 should be construed so as to permit them to deduct the prepayment of their mortgage debt in calculating their surplus, thereby eliminating any surplus they might have been required to repay. For the reasons that follow, we reject petitioners’ contentions.

I.

In 1963, petitioner Branford House, Inc. (Branford), now dissolved, became a limited-profit housing company under article II of the Private Housing Finance Law. As such, it received a 50-year, low-interest loan from the New York City Board of Estimate and a 30-year exemption from local and municipal taxes for a 159-unit apartment building to be constructed in the Bronx to provide low-rental housing for middle income families. In exchange for the receipt of these financial advantages, Branford promised to remain a limited-profit housing company in the Mitchell-Lama program for a minimum of 20 years before filing for dissolution. In 1989, after being notified of Branford’s intention to dissolve, respondent New York City Department of Housing Preservation and Development informed Branford that it was required to pay a surplus of $377,074 pursuant to section 35 (3).1 Branford prepaid its mortgage balance of $2,471,095.74 due to the City and conveyed the property to petitioner New Branford, Inc. Petitioners also paid the surplus to respondents under protest. They then commenced this proceeding.

Supreme Court concluded that petitioners owed the surplus. The Appellate Division unanimously affirmed, and rejected petitioners’ claim that the word "state” had been inadvertently inserted into section 35 (3). The Court also concluded that there was no merit to petitioners’ position that the mortgage should be considered when calculating the surplus (187 AD2d 380, 382). We granted petitioners leave to appeal and now affirm.

II.

We first address petitioners’ contention that it is exempt from application of the surplus requirement because the word "state” was inadvertently inserted into Private Housing Finance Law § 35 (3). That section exempts from the surplus requirement those housing companies that were "aided by a state loan made after” May 1, 1959 (emphasis added). Bran-ford’s project was aided by a loan, made after May 1, 1959, by the City, not the State. Thus, the City’s loan to Branford does not fall within the express language of the statutory exemption from the surplus requirement. Petitioners argue, however, that the insertion of the limiting word "state” before the word "loan” in the 1961 recodification of the Limited-Profit Housing Companies Law was an inadvertent clerical error, and that section 35 (3) should be applied as if the clerical error had not been made. If the statute is read without the limiting word "state”, inasmuch as the project was aided by "a loan” made after May 1, 1959, it would be exempt from the surplus requirement.

Generally, a court may not assume the existence of legislative error and change the plain language of a statute to make it conform to an alleged intent. However, a court may apply a statute by disregarding a clerical error in legislation so as to make the corrected statute conform to the Legislature’s true intent, if it is established unquestionably that (1) the true legislative intent is contrary to the statutory language, and (2) the mistake is due to inadvertence or clerical error (McKinney’s Cons Laws of NY, Book 1, Statutes § 362; see, People ex rel. French v Lyke, 159 NY 149, 152-153; McKee Land & Improvement Co. v Williams, 63 App Div 553, 561, affd 173 NY 630; Matter of Deuel, 116 App Div 512, 514-515; People ex rel. Fitch v Lord, 9 App Div 458).

We first hold that petitioners have failed to meet their burden of establishing without question that the Legislature in the 1961 recodification of section 35 (3) did not intend to restrict the scope of the exemption from the surplus requirement to projects aided by a State loan. On the contrary, the legislative history of section 35 (3) supports equally the conclusion that limiting the surplus exemption to State-aided projects was a considered decision of the 1961 Legislature. Indeed, the Legislature in 1959 so limited the surplus exemption. Although in 1960 it expanded the exemption to projects aided by any loan, in 1961 it again limited the exemption to State-aided projects, just as it had done in 1959.* * Petitioners do not offer any persuasive reason why the Legislature’s 1961 amendment should be considered any less deliberate than the ones in 1959 and 1960. Petitioners argue that because the insertion of the word "state” in 1961 was a substantive change contrary to the 1961 legislative history’s statements that the recodification was intended to be without substantive change, the 1961 amendment should not be given effect. But, such a general statement of legislative intent is not sufficient to meet petitioners’ heavy burden of establishing that the Legislature’s intended meaning was contrary to the plain language of a statute, especially where that language has been left unchanged by the Legislature for over 30 years.

We also conclude that petitioners have failed to establish that the insertion of the word "state” in the 1961 amendment was a clerical error. The claimed error is not the typical mistake in drafting — i.e., a typographical error, misspelling or a transposition of letters or numerals. Rather, the purported error is in the inclusion of a substantive word in the statute. Nothing has been shown about the circumstances surrounding the incorporation of this word that would suggest that it was due to a clerical error in drafting or printing (cf., People ex rel. French v Lyke, 159 NY 149, 152-153, supra [omission of the word "or”]; McKee Land & Improvement Co. v Williams, 63 App Div 553, affd 173 NY 630, supra [reference to chapter 744 rather than chapter 774]). The parties agree that no documentary evidence exists that accounts for the alleged mistake, and petitioners’ attempt to explain it is wholly speculative. Furthermore, the inclusion of the word "state” in section 35 (3) does not create any anomaly in the statute or result in a statutory scheme that is not entirely reasonable (cf., Matter of Deuel, 116 App Div 512, 514-515, supra; People ex rel. Fitch v Lord, 9 App Div 458, supra). On the contrary, without the inclusion of the limiting word "state”, the exemption would apply to all loans made after May 1, 1959 regardless of source, and thus, in effect, eliminate the surplus requirement. A court should certainly not attribute such a far-reaching result to an alleged clerical error without stronger evidence than petitioners have provided.

III.

Given our conclusion that the surplus requirement of Private Housing Finance Law § 35 (3) applied to Branford, we now address petitioners’ alternative argument that Branford’s mortgage debt should have been included as part of "indebtedness” under section 35 (3) and, thus, should have been deducted in making the surplus calculation. The parties agree that if Branford’s mortgage debt is so deducted, no surplus exists. Section 35 (2), provides, in pertinent part, that a limited-profit housing company may voluntarily dissolve upon payment in full of its mortgage debt. Section 35 (3) further states that before such dissolution, "payment shall be made of all current operating expenses, taxes, indebtedness and all accrued interest thereon and the par value of and accrued dividends on the outstanding stock of such company.” After making such payments, any surplus remaining in the treasury of the housing company shall be paid to the municipality which granted the company a tax exemption.

Petitioners’ claim that its mortgage debt should have been deducted in making the surplus calculation is not persuasive. Read sequentially so as to give section 35 "a sensible and practical over-all construction” (Matter of Long v Adirondack Park Agency, 76 NY2d 416, 420), subdivision (2) first requires, for a housing company to be eligible for voluntary dissolution, that the mortgage be paid, and subdivision (3) thereafter provides that the surplus be calculated based upon, in part, the payment of any current indebtedness. Petitioners’ contention that the mortgage debt referred to in subdivision (2) is merely one component of the indebtedness referred to in subdivision (3) fails to recognize the different purposes of the two subdivisions. Subdivision (2) establishes the basic criteria which must be met for a housing company to qualify for voluntary dissolution. Subdivision (3) addresses the distinct requirement of calculating any surplus to be paid to the municipality after dissolution and conveyance of the project. If the unpaid mortgage of subdivision (2) constituted "indebtedness” under subdivision (3), as petitioners assert, the requirement of subdivision (3) that all indebtedness be paid before dissolution would render subdivision (2) superfluous to the extent that it requires the unpaid mortgage to be paid before dissolution. A construction rendering statutory language superfluous is to be avoided (see, Sanders v Winship, 57 NY2d 391, 396; McKinney’s Cons Laws of NY, Book 1, Statutes § 98).

Moreover, petitioners’ interpretation of section 35 would subvert the carefully balanced bargain between the investors and the governmental entities created by the statutory scheme of the Private Housing Finance Law: i.e., the investors agree to a 6% per year limit on the profit they may earn and to be subject to rent regulation while operating as a limited-profit housing company in return for receiving long-term, low-interest government loans and real estate tax exemptions. Typically after 20 years of providing low-rental housing, the company may "go private” pursuant to section 35 by paying off its mortgage debt and dissolving as a limited-profit housing company. It then may "cash in” its equity in the property by selling, leasing or renting it and thereby realize whatever profit the market will provide (see, Matter of Columbus Park Corp. v Department of Hous. Preservation & Dev., 80 NY2d 19, 23-24).

In accordance with the statutory scheme, section 35 (2) offsets a housing company’s long-term mortgage debt against its equity in the property and section 35 (3) separately offsets the housing company’s operating expenses, including "indebtedness”, against its rental income, with any surplus beyond the 6% profit limit to go to the municipality that granted the tax exemption. By claiming that the mortgage debt referred to in section 35 (2) is part of the surplus calculation in section 35 (3), petitioners are, in effect, seeking to use any surplus achieved as a limited-profit housing company to pay off the mortgage debt, thereby increasing the investors’ equity in the property. Because surplus represents operating profits beyond the 6% limit, if investors were allowed to retain the surplus in the form of increased equity, they would be exceeding the 6% limit on profits. This would be contrary to the statute’s purpose (see, Matter of Long v Adirondack Park Agency, 76 NY2d 416, 420, supra).

In sum, in view of the language, structure and purpose of section 35 of the Private Housing Finance Law, we conclude that a limited-profit housing company’s long-term mortgage debt is not to be considered in calculating the surplus to be repaid under section 35 (3).

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

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

Order affirmed, with costs.

      . Section 35 (3) states: "Upon such dissolution, title to the project may be conveyed in fee to the owner or owners of its capital stock or to any corporation designated by it or them for the purpose, or the company may be reconstituted pursuant to appropriate laws relating to the formation and conduct of corporations, provided, however, that prior to any such dissolution and conveyance or reconstitution, payment shall be made of all current operating expenses, taxes, indebtedness and all accrued interest thereon and the par value of and accrued dividends on the outstanding stock of such company. If after making such payments, and after conveyance of the project, a surplus remains in the treasury of the company, such surplus, except in the case of a project aided by a state loan made after May first, nineteen hundred fifty-nine, shall upon dissolution, be paid into the general fund of the municipality which granted tax exemption. After such dissolution and conveyance, or such reconstitution, the provisions of this article shall become and be inapplicable to any such project and its owner or owners and any tax exemption granted with respect to such project pursuant to section thirty-three hereof shall cease and terminate” (emphasis added).

      . Section 35’s predecessor originally did not exempt any projects from the surplus requirement (L 1956, ch 877, § 22). In 1959 the Legislature created an exemption to the surplus requirement and that exemption was limited to projects aided by a State loan (L 1959, ch 675, § 3). Then in 1960 the Legislature expanded the exemption from the surplus requirement to projects aided by "a loan” (L 1960, ch 669, § 4). In 1961, the Legislature recodified the subject statute as Private Housing Finance Law § 35, providing that the exemption from the surplus requirement applied only to "a project aided by a state loan made after” May 1, 1959 (L 1961, ch 803).

      . Section 35 (2) provides: "A company aided by a loan made after May first, nineteen hundred fifty-nine, may voluntarily be dissolved, without the consent of the commissioner or of the supervising agency, as the case may be, not less than twenty years after the occupancy date upon the payment in full of the remaining balance of principal and interest due and unpaid upon the mortgage or mortgages and of any and all expenses incurred in effecting such voluntary dissolution.”

      . Section 35 (3), by providing that the par value of, and all accumulated dividends on, the company’s stock be paid before any remaining surplus is paid to the municipality, tries to insure that the investors receive both their original investment and 6% per year profit upon dissolution. In other words, the housing company’s operating profit goes to insuring that the investors receive their original investment, plus 6% per year on that investment, before it goes to the municipality as surplus (see, Private Housing Finance Law §24 [1]; § 27 [2]; § 28 [1]).

      . The City later recomputed the amount as $337,191, and later it was reduced to $298,107.


text:
    [623 NE2d 15, 603 NYS2d 294]
    In the Matter of Frank J. Russo, Jr., Appellant, v Nassau County Community College et al., Respondents. State University of New York et al., Intervenors-Respondents.
    Argued August 31,1993;
    decided October 14, 1993

      POINTS OF COUNSEL

      Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City (Robert F. Van Der Waag and Michele Traboscia of counsel), for appellant.
    I. Under the plain language of the Freedom of Information Law, respondents are an "agency” and the materials sought constitute "records”. (Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Buff alo Broadcasting Co. v New York State Dept. of Correctional Servs., 174 AD2d 212; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Lipsman v Bass, 67 AD2d 654; Matter of Harris v City Univ. of N. Y., 114 AD2d 805; Matter of Kryston v Board of Educ., 77 AD2d 896; Matter of Scott, Sardano & Pomeranz v Records Access Officer, 65 NY2d 294.) II. There are no constitutional questions involved. (SHAD Alliance v Smith Haven Mall, 66 NY2d 496; Richmond Newspapers v Virginia, 448 US 555; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Civil Serv. Commn. v Carriers, 413 US 548; Laird v Tatum, 408 US 1, 409 US 901, 479 US 911; United Pub. Workers v Mitchell, 330 US 75; Department of Justice v Tax Analysts, 492 US 136; Sweezy v New Hampshire, 354 US 234; Uphaus v Wyman, 360 US 72.)

      Proskauer Rose Goetz & Mendelsohn, New York City (Gregg M. Mashberg and Andr G. Castaybert of counsel), for respondents.
    I. The Court below correctly held that college course materials are not agency records within the purview of FOIL. (Public Citizen v Department of Justice, 491 US 440; DeBartola Corp. v Florida Gulf Coast Trades Council, 485 US 568; NLRB v Catholic Bishop of Chicago, 440 US 490; People v Cintron, 75 NY2d 249; Matter of Sarah K, 66 NY2d 223, cert denied sub nom. Kosher v Stamatis, 475 US 1108; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143; People v Barber, 289 NY 378; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575.) II. Alternatively, if course materials are deemed records under FOIL, they are nonetheless exempt from disclosure under FOIL’S exemption for intraagency materials. (Matter of Xerox Corp. v Town of Webster, 65 NY2d 131; Matter of Town of Oyster Bay v Williams, 134 AD2d 267; Matter of McAulay v Board of Educ., 61 AD2d 1048, 48 NY2d 659; Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176.)

      Katherine A. Levine and James R. Sandner, New York City, for Nassau Community College Federation of Teachers, Local 3150, intervenor-respondent.
    I. The college, when it engages in its educational function, does not constitute an agency under FOIL. (Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Krauss v Nassau Community Coll., 122 Misc 2d 218; Matter of Cline v Board of Trustees, 76 Misc 2d 536; Equal Empl. Opportunity Commn. v Franklin & Marshall Coll., 775 F2d 110; NLRB v Yeshiva Univ., 444 US 672; National Labor Relations Bd. v Florida Mem. Coll., 820 F2d 1182; University of Cal. Regents v Bakke, 438 US 265; Wieman v Updegraff, 344 US 183.) II. Compelled disclosure of the requested material would violate both the college’s and faculty’s right to academic freedom as protected under the First Amendment and the Equal Protection Clause. (Keyishian v Board of Regents, 385 US 589; Sweezy v New Hampshire, 354 US 234; Regents of Univ. of Mich, v Ewing, 474 US 214; Parate v Isibor, 868 F2d 821; Widmar v Vincent, 454 US 263; Dow Chem. Co. v Allen, 672 F2d 1262; Kunda v Muhlenberg Coll., 621 F2d 532; Finley v National Endowment for the Arts, 795 F Supp 1457.) III. Alternatively, this Court can find that the college course materials are exempt from disclosure under FOIL’S exemption for intra-agency memoranda. (Environmental Protection Agency v Mink, 410 US 73; Stokes v Brennan, 476 F2d 699; Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176.)

      Robert Abrams, Attorney-General, Hauppauge (Susan B. Blum and Jerry Boone of counsel), for State University of New York, intervenor-respondent.
    I. The court below was correct in not applying FOIL to the materials sought by petitioner. (Regents of Univ. of Mich. v Ewing, 474 US 214; Board of Curators, Univ. of Mo. v Horowitz, 435 US 78; Matter of Olsson v Board of Higher Educ., 49 NY2d 408; Matter of Susan M. v New York Law School, 76 NY2d 241; Hamburger v Cornell Univ., 204 App Div 664, 240 NY 328; Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Lipsman v Bass, 67 AD2d 654; Matter of Harris v City Univ. of N. Y., 114 AD2d 805; Matter of Kryston v Board of Educ., 77 AD2d 896.) II. The academic arms of universities and colleges have been and can be treated differently without compromising the broad disclosure goals of FOIL. (Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees, 184 AD2d 508, 80 NY2d 757; Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees, 79 NY2d 927; Miller v State of New York, 62 NY2d 506; Tedeschi v Wagner Coll., 49 NY2d 652; Matter of Mary M. v Clark, 100 AD2d 41; Babigian v Evans, 104 Misc 2d 140, 97 AD2d 992.) III. The application of FOIL to curricular materials raises serious constitutional questions concerning the academic freedom of the institution and its faculty members under the First Amendment. (Matter of Sarah K, 66 NY2d 223; Keyishian v Board of Regents, 385 US 589; Sweezy v New Hampshire, 354 US 234; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143; Childs v Childs, 69 AD2d 406, 446 US 901.)

      Helen D. Irvin, of the District of Columbia Bar, admitted pro hac vice, and Ralph S. Brown, New York City, for American Association of University Professors, amicus curiae.

    I. Forced disclosure of classroom materials violates academic freedom. (Keyishian v Board of Regents, 385 US 589; Sweezy v New

      Hampshire, 354 US 234; Perry v Sindermann, 408 US 593; Speiser v Randall, 357 US 513; Regents of Univ. of Mich, v Ewing, 474 US 214; Baggett v Bullitt, 377 US 360; N. A. A. C. P. v Button, 371 US 415; United States v Associated Press, 52 F Supp 362; Ashwander v Valley Auth., 297 US 288.) II. Classroom teaching materials are exempt from public disclosure under the Freedom of Information Law. (Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176; Ingram v Axelrod, 90 AD2d 568; Matter of McAulay v Board of Educ., 61 AD2d 1048, 48 NY2d 659; Matter of Kheel v Ravitch, 62 NY2d 1.)

      Ira Michael Shepard, of the District of Columbia Bar, admitted pro hoc vice, for Association of Community College Trustees, amicus curiae.

    Established principles of constitutionally protected academic freedom insulate a public institution of higher education from compelled disclosure of course materials pursuant to New York’s Freedom of Information Law. (Sweezy v New Hampshire, 354 US 234; Regents of Univ. of Mich. v Ewing, 474 US 214; Keyishian v Board of Regents, 385 US 589; University of Cal. Regents v Bakke, 438 US 265; Griswold v Connecticut, 381 US 479; Wieman v Updegraff, 344 US 183; Shelton v Tucker, 364 US 479; University of Pa. v Equal Empl. Opportunity Commn., 493 US 182; N. A. A. C. P. v Alabama, 357 US 449.)

      Arthur N. Eisenberg, New York City, Lankenau, Kovner & Kurtz (Wayne N. Outten of counsel), and Michael A.

      Simon for New York Civil Liberties Union and another, amici curiae. The constitutional right of academic freedom embraces the right to be free from inquisition and intrusion into the content of course material. In order to avoid a conflict between the Freedom of Information Law and constitutional rights of academic freedom, this Court should fashion an "academic freedom” exemption to New York’s FOIL and should uphold the College’s refusal to disclose the materials at issue here. (Sweezy v New Hampshire, 354 US 234; Keyishian v Board of Regents, 385 US 589; University of Cal. Regents v Bakke, 438 US 265; Board of Curators, Univ. of Mo. v Horowitz, 435 US 78; Regents of Univ. of Mich. v Ewing, 474 US 214; University of Pa. v Equal Empl. Opportunity Commn., 493 US 182; Boyd v United States, 116 US 606; Buckley v Valeo, 424 US 1; Brown v Socialist Workers '74 Campaign Comm., 459 US 87; Federal Election Commn. v Hall-Tyner Election Campaign Comm., 678 F2d 416.)

      Mark Goodman, Michael Hiestand, Jane E. Kirtley, Eric P. Robinson and Leena Soni, of the District of Columbia Bar, admitted pro hac vice, for Student Press Law Center, Inc., and another, amici curiae.

    I. Nassau County Community College, including its academic departments, is an "agency” under the New York Freedom of Information Law. (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Russo v Nassau Community Coll., 147 Misc 2d 179; Matter of Lipsman v Bass, 67 AD2d 654; Matter of Harris v City Univ. of N. Y., 114 AD2d 805; Matter of Kryston v Board of Educ., 77 AD2d 896; Matter of Gabriel v Turner, 50 AD2d 889; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Capital Newspapers v Whalen, 69 NY2d 246.) II. Teaching materials owned by Nassau County Community College, such as films and filmstrips, are "records” under FOIL. (Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234.) III. No exemption under FOIL applies to the records requested. (Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825; Matter of Russo v Nassau Community Coll., 147 Misc 2d 179; Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176; Michael v Communications Workers, 130 Misv 2d 424; Department of Justice v Tax Analysts, 492 US 136.) IV. The College has no competing academic freedom right that conflicts with the requirements of FOIL. (Thomas v Collins, 323 US 516; University of Pa. v Equal Empl. Opportunity Commn., 493 US 182; Sweezy v New Hampshire, 354 US 234; Keyishian v Board of Regents, 385 US 589; Adler v Board of Educ., 342 US 485; University of Cal. Regents v Bakke, 438 US 265; Matter of Russo v Nassau County Community Coll., 185 AD2d 982.)
   OPINION OF THE COURT

Smith, J.

The issue here is whether a film and filmstrips used by a professor in a course given in a public college constitute "agency records” subject to Freedom of Information Law (FOIL) disclosure. We hold that the items sought are subject to disclosure under FOIL. Accordingly, we reverse the order of the Appellate Division.

Respondent Nassau County Community College is chartered under Education Law article 126. Nassau County sponsors the institution which is also partially funded by special County appropriations. The College’s operations, however, are governed by its own Board of Trustees (see, Education Law §§ 6304, 6306, 6310).

Petitioner, a Nassau County resident, requested that the College produce, for his inspection, a specified film and film strips used in a course entitled "Family Life and Human Sexuality” and listed as "PED 251.” Petitioner made several written requests for access to the course film entitled "Sexual Intercourse” pursuant to New York’s Freedom of Information Law (Public Officers Law §§ 84-90). Sean A. Fanelli, the president of the College, and the College attorney both denied petitioner’s requests, indicating that because the film sought was part of a course curriculum, it was not a "record” as contemplated by the Freedom of Information Law.

Petitioner exchanged correspondence with Fanelli concerning Fanelli’s assertion that copyright difficulties constituted an additional reason for the College’s denial, apparently prompting petitioner to request copies of the contracts involved in the purchase of the film, filmstrips, and any other "sexually explicit” visual aids for the course. Petitioner subsequently limited his request to the opportunity to "inspect” the specified items. In addition to petitioner’s written requests to the College’s officials, petitioner, along with other individuals, attended public meetings of the institution’s Board of Trustees seeking permission to review the items, but to no avail.

Fanelli denied petitioner’s subsequent appeals (see, Public Officers Law § 89 [4] [a] [delineating appeal procedures for persons denied access to records]) and referred the matter to the Committee on Open Government (see, id., § 89 [1] [b] [ii] [requiring the committee to "furnish to any person advisory opinions or other appropriate information regarding (FOIL)”]). The executive director of the committee responded to petitioner by letter (dated Dec. 21, 1988) concluding that the PED 251 film, filmstrips and contracts were "records” for FOIL purposes, but that copyright restrictions barred respondents from allowing petitioner to view them.

Petitioner commenced this CPLR article 78 proceeding (see, Public Officers Law § 89 [4] [b] [authorizing article 78 review for person denied disclosure after appeal]) seeking to compel respondents to grant him access to the PED 251 specified items. Supreme Court agreed with petitioner that the items constitute "agency records” under FOIL’S (Public Officers Law § 86 [4]) broad definition of the term and rejected respondents’ additional contentions that (1) the items were also protected from public disclosure because they were inter- and/or intraagency materials that were not final policy determinations pursuant to Public Officers Law § 87 (2), and (2) the release of the items would promote a "chilling effect” upon the College’s academic freedom in violation of respondent’s First Amendment rights. That court directed the College "forthwith to permit the petitioner to inspect the [items].” The Appellate Division reversed, declining to reach the intra/inter-agency/ final policy and constitutional issues. The Court held, as a matter of law, that the items requested did not constitute "agency records” within the meaning of FOIL. This Court granted leave to appeal and now reverses.

The Legislature unequivocally set forth its policy regarding the purpose of the Freedom of Information Law. The Legislative Declaration (Public Officers Law § 84) states, in part, "The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.” In Governor Wilson’s Approval Memorandum to the FOIL bills, he stressed the view that open and accessible government is a hallmark of a free society, engendering public understanding and participation (see, Governor’s Mem approving L 1974, chs 578, 579, 580, 1974 NY Legis Ann, at 392). He further noted, "The bills that I am today approving expressly affirm these principles and the beliefs which I have long held — that government is the people’s business and that the people have a right to know the processes by which government decisions are made” (id.; see generally, Note, New York’s Freedom of Information Law, Disclosure Under the CPLR, and the Common-Law Privilege for Official Information: Conflict and Confusion Over “the People’s Right to Know”, 33 Syracuse L Rev 615 [1982]; Marino, The New York Freedom of Information Law, 43 Fordham L Rev 83 [1974-1975]).

In Matter of Capital Newspapers v Whalen (69 NY2d 246), this Court noted the Legislature’s policy that "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” (id., at 252; Public Officers Law § 84; see also, Matter of Prisoners’ Legal Servs. v New York State Dept. of Correctional Servs., 73 NY2d 26; Matter of Washington Post Co. v New York State Ins. Dept. 61 NY2d 557, 564; Matter of Fink v Lefkowitz, 47 NY2d 567, 571). In Whalen, we held that the personal correspondence of a former Albany Mayor, commingled with official government documents and "kept” or "held” by a governmental entity, constituted "records” under FOIL. That the Mayor’s papers concerned matters of a personal nature did not change their public nature and susceptibility to FOIL. The focus of our inquiry under FOIL in that case, as here, was the underlying principle of granting "maximum access to the records of government” (Matter of Capital Newspapers v Whalen, 69 NY2d 246, 252, supra). It is within the framework of this declared policy that we address the specific contentions before us.

First, we reject the position of the intervenor-respondent Nassau Community College Federation of Teachers that the College is not an "agency” within the scope of FOIL when it engages in its educational function. Public Officers Law § 86 (3) defines an "agency” as "any * * * governmental entity performing a governmental or proprietary function.” Intervenor claims that the doctrine of "academic abstention” and statutory construction compel the conclusion that the Legislature did not intend to "extend FOIL’S definition of an agency to a college’s faculty committees and academic components when they perform educational functions.” To the extent that intervenor’s argument is an invitation for us to delineate distinctions between the parameters of educational, proprietary and governmental functions, we decline to do so. We do hold that for the purposes of petitioner’s FOIL inquiry, this public College constitutes an "agency.” Nothing in the statute or legislative history requires a contrary holding, and the statutory language should be interpreted consistent with "its natural and most obvious” meaning (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 94; Price v Price, 69 NY2d 8, 15-17). Moreover, as we held in Matter of Westchester Rock-land Newspapers v Kimball (50 NY2d 575, 581), FOIL’S scope should not be restricted to "the purpose for which a document was produced or the function to which it relates” (see also, Matter of Capital Newspapers v Whalen, 69 NY2d 246, 253, supra).

Petitioner argues, and we hold only, that Public Officers Law § 86 (4) entitles him to the PED 251 films. The statute defines a "record” as:

"any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes” (Public Officers Law § 86 [4] [emphasis supplied]).

The breadth of the statutory language, in conjunction with the purpose of FOIL, compels us to hold that the items petitioner seeks to inspect — a film and filmstrips from a college-level course taught in a public college and provided by the college — undoubtedly fall within the scope of the Public Officers Law § 86 (4) definition. To hold otherwise would frustrate the goal of liberal disclosure under FOIL and employ an extremely restricted view of what constitutes a "record,” especially when applying settled principles of statutory construction (McKinney’s Cons Laws of NY, Book 1, Statutes § 94; see, Matter of Capital Newspapers v Whalen, 69 NY2d 246, 251, supra; Price v Price, 69 NY2d 8, 15-17, supra).

Respondents contend that even if we hold that the definition of "record” under FOIL encompasses the specified items for PED 251, we should exclude them from public disclosure pursuant to the statute’s exemption for "inter-agency or intra-agency materials” (Public Officers Law § 87 [2] [g]). While the term "inter-agency materials” is not defined under the FOIL statute, New York’s courts have construed this term to mean "deliberative material,” i.e., communications exchanged for discussion purposes not constituting final policy decisions (Matter of Xerox Corp. v Town of Webster, 65 NY2d 131). Respondents contend that the classroom environment in which the films are used is one of "deliberation” — not "final determinations.” We disagree with respondents’ characterizations of the items. Recognizing that the College has used them in the course for years, there is no valid reason to hold that the items used do not constitute "final agency policy or determinations.” Although respondents argue that the classroom environment is one of "deliberation,” that in itself does not alter the status of the items used in the classroom. Respondents have not shown that the items petitioner seeks rest "squarely within the ambit of one of [the] statutory exemptions,” thereby justifying respondents’ refusal to disclose them to petitioner (Matter of Fink v Lefkowitz, 47 NY2d 567, 571, supra).

We have examined respondents’ and intervenors’ remaining contentions and find them to be without merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition granted in accordance with this opinion.

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

Order reversed, etc.

      . Public Officers Law § 86 ("Definitions”) states, in part: " 'Agency’ means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”

      . Subdivision (2) (g) (iii) of Public Officers Law § 87 ("Access to agency records”) states, in part: "Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that * ** * (g) are inter-agency or intra-agency materials which are not * * * final agency policy or determinations”.


author: Kaye, J.

text:
    Walter Dreger et al., Appellants, v New York State Thruway Authority, Respondent. Patricia Charbonneau, as Administratrix of the Estate of Roland Charbonneau, Deceased, Appellant, v State of New York, Respondent. Janet Dalton, as Administratrix of the Estate of Jackson C. Dalton, Deceased, Appellant, v State of New York, Respondent.
    Argued October 14, 1992;
    decided December 16, 1992

      APPEARANCES OF COUNSEL

      Lewis & Stanzione, Catskill (Ralph C. Lewis, Jr., of counsel), for Walter Dreger and another, appellants in the first above-entitled action.

      Saperston & Day, P. C., Buffalo (Thomas F. Segalla and Peter L. Powers of counsel), for Patricia Charbonneau and another, appellants in the second and third above-entitled actions.

      Robert Abrams, Attorney-General, Albany (Michael S. Buskus, Jerry Boone and Peter H. Schiff of counsel), for New York State Thruway Authority and another, respondents in the first, second and third above-entitled actions.
   OPINION OF THE COURT

Memorandum.

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

In each of these actions a claim against the State or the Thruway Authority was dismissed for failure to serve a copy of the claim on the Attorney-General in the manner prescribed by Court of Claims Act § 11. In Dreger, the claimant served the Thruway Authority but neglected to serve the Attorney-General. In Charbonneau and Dalton, copies of the claims were mailed to the Attorney-General but were not sent by certified mail as the statute requires. Because of these failures, the actions were subsequently dismissed and are now time-barred. Pursuant to Court of Claims Act § 10 (6) and CPLR 205 (a), however, a party whose "timely commenced” action has been dismissed and is now time-barred may apply to the court for permission to recommence the action, provided the action was not dismissed for failure to prosecute or under other circumstances not relevant here. The question on appeal is whether these claimants failed to meet the statutory timely commencement requirement because of their failure to serve the Attorney-General properly.

The Court of Claims Act contains no recommencement provision of its own, but section 10 (6) expressly incorporates the time limitations and tolling provisions of CPLR article 2, and section 9 (9) requires that Court of Claims practice follow Supreme Court practice, unless other provisions are expressly made. Thus, these actions may be recommenced if they qualify for recommencement under CPLR 205 (a). Claimants rely on our decision in Finnerty v New York State Thruway Auth. (75 NY2d 721), where we held that the requirement of service on the Attorney-General could not be waived by the State because it implicated subject matter jurisdiction. They contend that it has long been the rule that recommencement under CPLR 205 (a) or its predecessor is possible when a lack of subject matter jurisdiction was the basis for the dismissal of the prior action (George v Mt. Sinai Hosp., 47 NY2d 170; Gaines v City of New York, 215 NY 533). Inasmuch as Finnerty stated that failure to serve the Attorney-General resulted in a loss of subject matter jurisdiction, they contend they are entitled to seek recommencement of their actions.

Resolution of these cases does not turn on whether proper service on the Attorney-General is characterized as a matter of subject matter jurisdiction, personal jurisdiction or a condition precedent. CPLR 205 (a) allows recommencement only where the prior action was "timely commenced.” Accordingly, we look not to the characterization of the grounds for dismissal, but to the narrow question of what constitutes timely commencement. We have consistently held that, for purposes of CPLR 205 (a) actions prior to the 1992 CPLR amendments (see, L 1992, ch 216, §§ 2, 4), timely commencement requires literal compliance with the relevant statutes governing notice (Parker v Mack, 61 NY2d 114, 117; Markoff v South Nassau Community Hosp., 61 NY2d 283, 288; see, CPLR 304 et seq.).

Court of Claims Act § 11 establishes a notice requirement in addition to that which may be applicable under other statutes: serving a copy of the claim or notice of intention on the Attorney-General, either personally or by certified mail with a return receipt requested (see, MacFarland-Breakell Bldg. Corp. v New York State Thruway Auth., 123 Misc 2d 307, affd 104 AD2d 139 [governmental entity separate from State must be served in addition to Attorney-General]). Under section 11, both filing with the court and service on the Attorney-General must occur within the applicable limitations period, and there is no basis for believing that the Legislature intended filing to independently constitute commencement. Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed (Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d 849). Accordingly, where, as here, claimants have not met the literal requirements of Court of Claims Act § 11, their actions are not timely commenced, and relief under CPLR 205 (a) is not available.

Kaye, J.

(dissenting). As this Court has long recognized, a CPLR 205 (a) request to recommence a dismissed action must be liberally viewed: "[t]he statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction” (Gaines v City of New York, 215 NY 533, 539 [Cardozo, J.]). Today’s decision ignores that mandate.

CPLR 205 (a) allows recommencement of "timely commenced” actions that are later dismissed. As an action brought under the CPLR prior to July 1, 1992 could only be "commenced * * * by service of a summons” (CPLR 304), a defect in service meant the action had never been commenced and therefore could not be recommenced under CPLR 205 (a) (see, e.g., Markoff v South Nassau Community Hosp., 61 NY2d 283). This result, compelled by the explicit language of CPLR 304, constitutes a limited exception to the broad sweep of CPLR 205 (a). CPLR 205 (a) does not, however, require "literal compliance with the relevant statutes governing notice” (majority mem, at 723) but rather, only requires compliance with the statutes specifically governing commencement. To require anything more would abrogate the utility of CPLR 205 (a) as a remedial savings statute.

The Court of Claims Act has no analogue to CPLR 304. Nor does Court of Claims Act § 10 (6) — which allows claimants to seek to file their claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” — incorporate the CPLR definition of commencement of an action, found in article 3. Thus, in contrast to the CPLR, the Court of Claims Act does not specify when an action is "commenced.”

Indeed, nothing compels the Court to conclude that because filing and service on the Attorney-General are conditions for bringing a suit in the Court of Claims, both are necessary to "timely commence” an action for the purposes of CPLR 205 (a). Absent such a requirement, we should refrain from "frittering] away” the broad and liberal purpose of CPLR 205 (a). In keeping with the ameliorative reach of CPLR 205 (a), it would better serve the purposes of that section to treat an action in the Court of Claims as commenced upon filing, and service on the Attorney-General as simply a necessary condition for subject matter jurisdiction (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 723). While failure to satisfy the service requirements will provide a basis for dismissal, such dismissal should not deprive claimants of the opportunity to renew the actions pursuant to CPLR 205 (a).

In the CPLR, the Legislature chose to prescribe when an action is commenced, and those requirements must be literally satisfied before relief can be allowed under CPLR 205 (a). The Legislature may well choose a parallel course for the Court of Claims Act. Unless and until it does so, however, this Court should not itself impose requirements that deny plaintiffs the intended benefit of CPLR 205 (a).

We respectfully dissent.

Acting Chief Judge Simons and Judges Titone, Hancock, Jr., and Smith concur; Judge Kaye dissents and votes to reverse in an opinion in which Judge Bellacosa concurs.

In each case: Order affirmed, with costs, in a memorandum.


author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v John May, Appellant.
    Argued October 16, 1992;
    decided December 16, 1992

      APPEARANCES OF COUNSEL

      De Nice Powell, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Hector Gonzalez and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress granted and the indictment dismissed.

On March 8, 1989, at about 2:30 a.m., defendant and a female companion were seated in a parked Oldsmobile on a deserted street known for criminal activity. Two police officers, patrolling in a marked car, drove up behind them to investigate. As the officers approached, with the patrol car’s red turret lights and spotlight on, defendant started the engine of the Oldsmobile and slowly pulled away. At this point, one of the officers, using the police car’s loudspeaker, ordered the car to pull over. Defendant did so.

The officers approached the Oldsmobile and asked defendant to produce his license, registration or insurance card and as the officers waited for him to do so, they noticed that a towel was draped over the steering wheel column. They called in the car’s license plate number and were advised that the car was stolen. The officers then placed defendant under arrest. A body search revealed three vials of crack cocaine in his pocket, and when the towel was removed from the steering column the officers discovered that the column had been broken and rewired.

Defendant moved the trial court to suppress the crack and the police pictures subsequently taken of the stolen car as the fruits of an illegal stop and seizure. The motion was denied.

We preliminarily note that, despite the fact that defendant was seated in a stolen car, the police stopped him personally and he consequently has standing to challenge the legality of that stop (see, People v Millan, 69 NY2d 514, 520-521). Turning to the merits, we hold that when the police, using red turret lights, a spotlight and a loudspeaker, ordered defendant to pull the car over, defendant was effectively "seized” (see, People v Sobotker, 43 NY2d 559, 563; People v Ingle, 36 NY2d 413, 418; see also, People v Cantor, 36 NY2d 106, 111). Consequently, the stop was proper only if the officers had a reasonable suspicion of criminal activity (see, People v Sobotker, 43 NY2d, at 563, supra; People v De Bour, 40 NY2d 210, 223).

Under the circumstances existing, the police officers here could not have entertained a reasonable suspicion that a crime had been or was about to be committed. They knew only that defendant and another person were sitting in a car parked on a desolate street, a fact which provided them with no information regarding criminal activity. Moreover, defendant’s action in moving the car slowly away as the police approached could not serve to create a reasonable suspicion of criminality given defendant’s right "to be let alone” and to refuse to respond to police inquiry (see, People v Howard, 50 NY2d 583, 590-591, cert denied 449 US 1023 [quoting Olmstead v United States, 277 US 438, 478]). The police could have followed the car, to keep it under observation while they checked on its plates to determine if it was stolen (see, People v Sobotker, 43 NY2d, at 564, supra), but they had no legal basis to stop the car when they did.

Nothing said here should be construed as holding that the police may not make a common-law inquiry of those in a vehicle based upon a founded suspicion and, as suggested by the dissent, the officers here had grounds to do so. The police may not forcibly detain civilians in order to question them, however, without a reasonable suspicion of criminal activity and once defendant indicated, by pulling away from the curb, that he did not wish to speak with the officers, they should not have forced him to stop without legal grounds to do so (see, People v Martinez, 80 NY2d 444 [decided today]). Any other rule would permit police seizures solely if circumstances existed presenting a potential for danger.

Accordingly, the evidence should have been suppressed (see, Wong Sun v United States, 371 US 471, 485; People v Ingle, 36 NY2d, at 418-419, supra).

Bellacosa, J.

(dissenting). I respectfully dissent and vote to affirm the order of the Appellate Division.

People v Martinez (80 NY2d 444), in which I fully concur, applies New York’s common-law governing framework for police-civilian street encounters in a People v Howard (50 NY2d 583, cert denied 449 US 1023) context. Martinez focuses on the third level of People v De Bour (40 NY2d 210), the forcible stop and detention, and makes an important clarification of Howard. The instant case deals with the second level, the common-law right of inquiry in an analogous police-civilian street encounter involving a vehicle.

Here, the police officers pulled up in a police radio car behind a parked car sometime after 2:30 a.m. on a deserted street in Manhattan known for criminal drug activity. They had turned on their turret lights and spotlight. The parked car then started to pull away from the curb, with the officers following for 10 to 20 feet. By loudspeaker, the officers directed defendant to "[p]ull the vehicle over”. The officers approached the car and simply asked defendant for his license, registration and insurance card. The police kept their weapons bolstered. The vehicle was soon determined to have been stolen in Queens a few weeks before.

As the Court stated in De Bour, the common-law right of inquiry is "activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a police [officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v De Bour, 40 NY2d, at 223 supra). I agree that at the point in time when the police used the loudspeaker to order defendant to pull the car over, they had only a founded suspicion that criminal activity might be afoot and, therefore, only the common-law right of inquiry was activated. I believe, however, that the order "to pull over” and the brief, ordinary inquiry addressed to the motorist was "short of a forcible seizure” under our pertinent precedents for the purposes of the issue to be decided in this case. The conduct of the officers, among the range of options available in the given circumstances, did not violate the "overriding requirement of reasonableness” (see, id., at 218). Moreover, reversal in this case may engender new confusion and squeeze the commonsense meaning out of the common-law right to inquire where the individual to be inquired of happens to be in a vehicle. I would, therefore, affirm the order of the Appellate Division.

To be sure, People v Ingle (36 NY2d 413) and People v Sobotker (43 NY2d 559) establish the rule that where the police stop a car moving freely in traffic on a highway, that stop will constitute a "limited seizure within the meaning of constitutional limitations” (People v Ingle, supra, at 418 [emphasis added]). However, those cases are distinguishable from this situation and do not purport to govern or resolve the precise question presented by this case. In significant contrast to those cases, the officers here lawfully and appropriately approached defendant’s car while it was standing still. When it started to move away, the officers followed for only a few feet. One is left to wonder what the result in this case would be if, instead of the standard "pull over” direction, the officers had politely announced, "Please don’t pull away. We wish only to conduct a common-law inquiry and not effect even a partial seizure” (compare, People v Hollman, 79 NY2d 181, 191).

Given the significant distinguishing features between this case and Sobotker (43 NY2d 559, supra), the Court appears to be embellishing the "limited” Sobotker/Ingle principle. An unlimited, bright line test emerges as the key feature of this case that whenever and in whatever circumstances the police attempt to circumscribe the movement of a vehicle, the police action constitutes a "seizure” for all purposes. The lesser common-law right to inquire consequently decomposes into fossilized lifelessness.

At the very least, this latest twist of the operating principle in this environment thrusts the common-law right to inquire into confusion with respect to police-civilian street encounters involving vehicles. Indeed, the practical implementation compelled by this case is likely to produce results which conflict paradoxically with parallel situations involving foot chases, as in People v Howard (50 NY2d 583, supra), which the Court seeks to regularize today in Martinez (see, 80 NY2d 444, 447-448, supra).

In sum, I agree with the majority at the Appellate Division that the police owed a duty to the public to initiate a common-law inquiry in this case. The officers did nothing unlawful, unreasonable, uncalled for or unconstitutional. The police should have the right to reasonably, peacefully and safely secure a potentially very dangerous situation like this while they do their jobs (see, e.g., People v Torres, 74 NY2d 224, 232, 235-236 [dissenting opn]). The circumstances here were certainly suspicious and the police were attempting to conduct a concededly permissible standard motorist inquiry. An artificial, unrealistic ritual that frustrates their authorized work and forces them instead to allow a vehicle to accelerate and proceed into a potentially more dangerous and volatile high-speed chase or other encounter by possibly joining other vehicular and pedestrian traffic is not within the rule of reason or this Court’s precedents.

Acting Chief Judge Simons and Judges Kaye, Titone and Hancock, Jr., concur in memorandum; Judge Bellacosa dissents and votes to affirm in an opinion; Judge Smith taking no part.

Order reversed, etc.


text:
    Juan Pedrero, Also Known as Juan Rivera, an Infant, by His Mother and Natural Guardian, Patricia Rivera, Respondent, v Antoine C. Moreau et al., Appellants.
    Argued November 17, 1992;
    decided December 16, 1992
    APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Stephen J. McGrath, Leonard Koerner and Janice Kabel of counsel), for appellants.

      Katz, Katz & Bleifer, New York City (Roy A. Kuriloff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendants’ motion for summary judgment granted, and the certified question answered in the negative.

Plaintiff, born June 3, 1970 at Morrisania Hospital in New York City, commenced this malpractice action against six physicians for injuries allegedly sustained as a result of a negligently induced premature birth. Morrisania was operated by the City of New York until July 1, 1970, when control was transferred to the New York City Health and Hospitals Corporation (HHC).

In 1982, a notice of claim was served upon the Comptroller of the City of New York, and in 1983 Supreme Court permitted plaintiff to serve HHC with a late notice of claim. The notice served on the City was untimely, having been served more than 10 years after plaintiff’s birth. Thus if such notice was a prerequisite to this action, Supreme Court properly dismissed the complaint.

In June 1970, when the cause of action accrued, General Municipal Law § 50-d (1) required every "municipal corporation” to assume liability for, and save harmless, physicians who treat persons "without receiving compensation from such person in a public institution maintained in whole or in part by the municipal corporation.” No action could be commenced against such physicians unless the notice of claim procedure was followed (General Municipal Law former § 50-d [2]), which plaintiff concededly failed to do in this case.

Although the Appellate Division divided over the employment status of the physicians on June 3, 1970, resolution of that issue is unnecessary to our disposition. Rather, the proper inquiry is whether (i) the hospital was "maintained in whole or in part” by the City on June 3, 1970; and (ii) the physicians performed services without being compensated by the patient (see, General Municipal Law former § 50-d [1]; Norr v Spiegler, 56 AD2d 389, 392-393, affd 44 NY2d 809). If both prongs are satisfied, then the vicarious liability, indemnity and notice of claim provisions of General Municipal Law former § 50-d apply, regardless of the technical employment status of the physicians.

Inasmuch as it is undisputed that the City of New York maintained Morrisania on June 3, 1970, and the physicians did not charge plaintiffs mother for their services, a timely notice of claim was required. Accordingly, Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiffs remaining contentions are without merit.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith taking no part.

Order reversed, etc.


text:
    Robert Applebaum et al., Respondents, v Town of Oyster Bay et al., Appellants.
    Argued October 20, 1992;
    decided December 16, 1992

      APPEARANCES OF COUNSEL

      Marino, Bernstein & La Marca, P. C., Oyster Bay (Anthony J. La Marca and Robert L. Brusca of counsel), for appellants.

      Siegel Fenchel & Peddy, P. C., Garden City (William D. Siegel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The appellant Town of Oyster Bay imposes a "special ad valorem levy,” as defined by section 102 of the Real Property Tax Law, on real property owned by plaintiffs within the Town. These owners are not serviced by the Town’s garbage collection district. Plaintiffs own property in a development which was formed as a homeowners association. As a condition for zoning and planning approval by the Town of Oyster Bay and the County of Nassau, the predecessor in title to plaintiffs’ properties entered into a declaration of covenants and restrictions which, among other things, required plaintiffs to "provide at their own cost and expense for the disposition of garbage, ashes, debris or other waste material.” The declaration also stated that "the Town of Oyster Bay shall not be requested or petitioned to provide for any such services.” Pursuant to that declaration, plaintiffs retained a private company to collect their garbage. The Town of Oyster Bay continues to impose the ad valorem levy for Garbage Collection District No. 1 on plaintiffs’ properties.

Plaintiffs commenced this action seeking an order declaring the imposition of the levy invalid. Supreme Court, Nassau County, declared the levy "illegal, invalid and in violation of Section 198 (9) (b) of the Town Law” by reason of the waiver of garbage collection services by plaintiffs’ predecessor in title. The Appellate Division, Second Department, affirmed, holding that "[wjhere property is excluded from garbage collection services, the imposition of a garbage collection tax is invalid” (176 AD2d 773). Leave to appeal was granted by this Court.

This Court has allowed a property owner to recover ad valorem levies paid to a Town’s garbage district for garbage collection services where the petitioner did not have the benefit of that Town’s garbage collection service (see, Matter of Sperry Rand Corp. v Town of N. Hempstead, 53 Misc 2d 970, affd 29 AD2d 968 [no opn], affd on opn at Special Term 23 NY2d 666). There, the owner of a large industrial plant situated partly within the Town of North Hempstead, sought to recover a special levy paid by it to the Town’s garbage district prior to receiving garbage collection services from the Town. The Town Board had resolved to collect "all garbage and rubbish in the * * * District and [to] dispose of the same by incineration.” However, the Town limited the volume of garbage and rubbish that it would collect from commercial and industrial establishments to 40 pounds three times a week. Generating approximately 4,500 pounds of garbage and refuse daily, the commercial owner engaged a private garbage collection contractor to service the entire plant.

This Court affirmed the Appellate Division order, which upheld Supreme Court’s holding that:

"Since petitioner has not had the benefit of collection and disposal service, it is entitled to a refund of that portion of the tax levy paid by it * * * [up] to the date on which complete service is rendered” (53 Misc 2d, at 973 [emphasis in original]).

In the instant case, the Town of Oyster Bay does not provide and does not intend to provide the residential property owners with the benefit of garbage collection services. We hold, therefore, that this ad valorem levy imposed by the Town for garbage collection services, where the owners do not receive the benefit of that service, is invalid.

This ruling is consistent with Landmark Colony at Oyster Bay Homeowners’ Assn. v Town of Oyster Bay (145 AD2d 542). There, the plaintiff, a homeowner’s association of a condominium complex, sought a judgment declaring the imposition of garbage collection taxes on its property invalid and ordering the Town to refund all the taxes paid. In order to secure approval for the construction of the condominium, the developer of the condominium complex had entered into an agreement with the Town Board that the condominium unit owners would be solely responsible for garbage collection without any obligation on the part of the Town of Oyster Bay. The Second Department held that "where * * * a plaintiff is precluded from receiving any garbage collection services there is no basis for the town to impose a garbage collection tax on its property” (id., at 544).

Here, although the restrictive covenant between plaintiffs’ predecessor in title and the Town of Oyster Bay does not expressly condition the grant of favorable zoning conditions on the owners’ agreement to provide their own garbage collection services, it does preclude the owners from receiving any garbage collection services from the Town. Because plaintiffs do not receive the pertinent benefit, no basis exists in these circumstances for the imposition of this ad valorem garbage collection levy (see, RPTL 102 [14]).

The appellant Town of Oyster Bay argues further that the waiver of the garbage collection services cannot serve as a basis to invalidate the ad valorem levy, and the municipal garbage district cannot be diminished unless statutory requirements, including a public hearing, are satisfied (see, Town Law § 202-c). This argument is not persuasive. The declaration between the predecessor in title and the Town of Oyster Bay expressly made garbage collection the sole responsibility of the property owners and prohibited them from petitioning the Town to provide such services. In return, the Town of Oyster Bay allowed favorable zoning conditions to the predecessor in title to plaintiffs’ properties. We do not construe the declaration as a waiver by successor property owners to object to the imposition of an ad valorem levy for garbage collection services where the property owners do not receive those services.

We have examined the Town of Oyster Bay’s remaining contentions and conclude that they are also without merit.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of 400 East 64/65th Street Block Association et al., Petitioners, and Coalition to Save City and Suburban Housing, Inc., et al., Respondents, v City of New York et al., Appellants, and Kalikow 78/79 Company, Intervenor-Appellant, et al., Respondent.
    Submitted October 19, 1992;
    decided December 16, 1992
   Motions for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Estate of Berwick v State of New York, 76 NY2d 884).


text:
    In the Matter of 400 East 64/65th Street Block Association et al., Petitioners, and Coalition to Save City and Suburban Housing, Inc., et al., Respondents, v City of New York et al., Appellants, and Kalikow 78/79 Company, Intervenor-Appellant, et al., Respondent. City Council of the City of New York, Proposed Intervenor-Appellant.
    Submitted October 19, 1992;
    decided December 16, 1992
   Motion for leave to appeal dismissed upon the ground that movant New York City Council is not a party to this proceeding. Motion for leave to intervene denied.


text:
    Nickrouz Ghazibayat, Also Known as Bayat N. Ghazi, Appellant, v State of New York, Respondent.
    Submitted October 26, 1992;
    decided December 16, 1992
   Motion for reconsideration of this Court’s September 22, 1992 order of dismissal denied [see, 80 NY2d 923]; motion for leave to appeal denied.


text:
    Gilbert Litchhult, as Administrator of the Estate of Larae M. Litchhult, Deceased, Appellant, v Winold T. Reiss et al., Defendants, and Valley Central School District, Appellant, and County of Orange, Respondent. (And Two Other Related Actions.)
    Submitted September 28, 1992;
    decided December 16, 1992
   Motion by plaintiff Litchhult for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]). Motion by defendant Valley Central School District for leave to appeal denied. Motion by plaintiffs Flanagan and Soltis for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v Roberto Cruz, Also Known as Jose Rodriguez, Appellant.
    Argued November 20, 1992;
    decided December 17, 1992
    APPEARANCES OF COUNSEL

      William B. Carney, New York City, and Philip L. Weinstein, for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Daniel S. Ratner and Susan L. Valle of counsel), for respondent, and for New York State District Attorneys Association, amicus curiae.

      Anthony J. Ferrara, New York City, for Association of the Bar of the City of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

The trial court improperly conducted a Sandoval hearing (People v Sandoval, 34 NY2d 371) in defendant’s absence, requiring a new trial (see, People v Dokes, 79 NY2d 656; People v Gebrosky, 80 NY2d 995). It is therefore unnecessary to consider defendant’s remaining contention.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith taking no part.

Order reversed, etc.


text:
    In the Matter of Juan J., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued November 19, 1992;
    decided December 17, 1992

      APPEARANCES OF COUNSEL

      Raymond E. Rogers, New York City, and Lenore Gittis, for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Elizabeth I. Freedman and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

Respondent was charged with committing acts which, if committed by an adult, would constitute the crimes of second degree robbery (Penal Law § 160.10 [1]), second degree assault (Penal Law § 120.05 [2], [6]) and third degree assault (Penal Law § 120.00 [1]). The charges arose out of an incident in which respondent and three others accosted a man and woman on a subway platform, abused them verbally and then attacked the man, beating him while one of their number held him down. During the attack one of the assailants used a chain to beat the victim and two held him down while another took his wallet from his pocket. On the basis of the evidence, including the testimony of the victim and an eyewitness, the Family Court adjudicated respondent a juvenile delinquent and placed him in the custody of the New York State Division for Youth.

Contrary to respondent’s contentions on this appeal from the Appellate Division order affirming the Family Court’s dispositional order, these circumstances, coupled with the evidence that respondent and his companions fled within moments after the wallet was taken, provided a sufficient basis for the hearing court to find that respondent was not only aware of the robbery, but acted with the intention of aiding in its commission. Unlike the facts in People v De Jesus (123 AD2d 563), on which respondent relies, there was nothing surreptitious or hidden here about the theft of the victim’s wallet, which was removed from the victim’s pocket openly and in plain sight of an eyewitness standing several feet away. Similarly, regardless of whether respondent was initially aware that one of his companions was armed with a chain, his continued participation in the beating, which involved the repeated use of a chain by one of the assailants over an extended period, was sufficient to support the conclusion that he intentionally aided in an assault with a dangerous instrument (see, Penal Law § 120.05 [2]; see also, People v Allah, 71 NY2d 830, 832).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, without costs, in a memorandum.