author: Chief Judge Kaye.

text:
    [657 NE2d 269, 633 NYS2d 274]
    In the Matter of Pasquale De Petris, Appellant, v Union Settlement Association, Inc., Respondent.
    Argued September 12, 1995;
    decided October 24, 1995

      POINTS OF COUNSEL

      Karen Wohlforth, New York City, for appellant.
    I. The article 78 petition states a valid cause of action to review the procedures followed by the employer in the termination of an employee. (Matter of Gray v Canisius Coll., 76 AD2d 30; Matter of Carr v St. John’s Univ., 17 AD2d 632, 12 NY2d 802; Matter of Bonwitt v Albany Med. Ctr. School of Nursing, 77 Misc 2d 269; Matter of Barone v Adams, 39 Misc 2d 227; People ex rel. Cecil v Bellevue Hosp. Med. Coll., 60 Hun 107; Tedeschi v Wagner Coll., 49 NY2d 652; Matter of Weidenfeld v Keppler, 84 App Div 235; Matter of Auer v Dressel, 306 NY 427.) II. An at-will employee who alleges that he was terminated in violation of two procedures outlined in an employees’ manual may bring an article 78 proceeding against a not-for-profit corporate employer for violations of the procedures outlined in the Manual. (Porras v Montefiore Med. Ctr., 185 AD2d 784; Sabetay v Sterling Drug, 69 NY2d 329; Weiner v McGraw-Hill, Inc., 57 NY2d 458; D’Avino v Trachtenburg, 149 AD2d 401, 74 NY2d 611; Matter of Fiammetta v St. Francis Hosp., 168 AD2d 556.) III. The court below erred in this case, where it is at best substantiated, and in the least a question of fact for a trier of fact, that the employer violated the rules in the employees’ manual in the termination of petitioner. (Matter of Mitchell v Dowdell, 172 AD2d 1032; Matter of Sines v Opportunities For Broome, 156 AD2d 878.) IV. It was error for the court below to affirm by dicta that the procedures manual was not violated. (Matter of Mitchell v Dowdell, 172 AD2d 1032.)

      Sullivan & Cromwell, New York City (Stephanie G. Wheeler, D. Stuart Meiklejohn and Theodore O. Rogers, Jr., of counsel), for respondent.
    I. The dismissal of the petition should be affirmed because the Manual is not an express limitation on the right to terminate at-will employees and petitioner did not detrimentally rely on the Manual. (Matter of Hanchard v

      Facilities Dev. Corp., 85 NY2d 638; Sabetay v Sterling Drug, 69 NY2d 329; Charyn v National Westminster Bank, 204 AD2d 676; Patrowich v Chemical Bank, 98 AD2d 318, 63 NY2d 541; Manning v Norton Co., 189 AD2d 971; Brooks v Key Pharms., 183 AD2d 1011; Porras v Montefiore Med. Ctr., 185 AD2d 784; Matter of Fiammetta v St. Francis Hosp., 168 AD2d 556; DiCocco v Capital Area Community Health Plan, 159 AD2d 119, 77 NY2d 802.) II. The court below correctly held that Union Settlement substantially followed the Manual’s procedures. (Matter of Hanchard v Facilities Dev. Corp., 85 NY2d 638.)
   OPINION OF THE COURT

Chief Judge Kaye.

At issue on this appeal is whether a discharged employee’s CPLR article 78 petition, claiming wrongful termination for failure to comply with procedures set out in an employee manual, was correctly dismissed. We conclude, as did the Appellate Division, that it was.

In 1972, petitioner, Dr. Pasquale De Petris, joined the James Weldon Johnson Counseling Center, a provider of outpatient mental health services in East Harlem, as a staff psychologist. He continued to hold that position when in 1982 respondent, Union Settlement Association, a private nonprofit corporation, assumed responsibility for the Center. Petitioner was made assistant administrative director of the Center in 1986 and two years later became its administrative director.

Among petitioner’s duties as administrative director was overseeing the Center’s finances which, beginning in 1990, became a source of friction between petitioner and respondent. According to respondent, the Center under petitioner’s direction operated at a deficit and the overspending continued. Between December 1991 and April 1992, respondent’s executive director, Eugene Sklar, and its associate executive director, Gina Rusch, several times in writing and in meetings expressed concern to petitioner regarding his oversight of the Center’s finances. In response to these communications, petitioner proposed various measures for reducing expenditures and increasing revenues but on April 2, 1992 Rusch wrote him that she saw no indication that corrective measures were actually being implemented.

At a meeting on April 14, 1992, respondent’s Board of Directors discussed the Center’s financial straits and when petitioner thereafter failed to act to remedy the situation, on April 20 respondent terminated his employment effective that day. The next day, petitioner wrote Rusch that the termination letter did not comply with respondent’s personnel manual in that it gave no reason for the firing and afforded none of the warnings that must precede termination, and he threatened legal action. Sklar offered to meet with petitioner to discuss the matter but petitioner insisted on written reasons for his termination, which Sklar did not provide.

The procedures to which petitioner referred were set forth in a "Personnel Policies and Practices Manual” first distributed by respondent to its employees in 1978. The stated purpose of the Manual was "to acquaint each employee with the personnel policies and practices of the Settlement so that you may know what to realistically expect.” The Manual set out respondent’s hiring practices, including that each employee at the time of hiring would receive a letter of employment specifying salary, work hours, duties, supervision and any special conditions of employment. Petitioner never received such a letter and has no written employment contract with respondent.

As explained in the introductory section of the Manual:

"We fully expect that the provisions and information in this Manual will change from time to time due to revision and/or change of policy of Union Settlement or changes which are mandated by legislation. It may not be possible at times to inform staff of such changes, however, every effort will be made to keep the Manual current. At all times, precedence will be given to the most current information over that which may be in the Manual and out of date.”

Respondent claims it stopped distributing the Manual in December 1991 and told employees, including petitioner, that the handbook was being revised.

In asserting his claim, petitioner pointed particularly to a section of the Manual entitled "Termination of Employment,” which provided that "[e]mployees may be discharged for just cause” and would be "informed in writing of the problems in job performance and given a period of time to improve. * * * Upon completion of this period, the employee shall be notified whether he passed or failed the trial, and if failed, the reason thereof.” Employees dismissed for gross misconduct, according to the Manual, could be terminated immediately but would then be entitled to a hearing.

Petitioner brought an article 78 proceeding seeking reinstatement and back pay, charging that respondent acted arbitrarily and capriciously by failing to follow its stated procedures for terminating his employment. The trial court held that article 78 relief was available in a proceeding brought against a private corporation for violation of its internal rules but dismissed the petition on the ground that mere existence of the Manual did not limit the employer’s right to terminate an at-will employee and that petitioner had failed to establish the elements necessary to bind his employer. The Appellate Division affirmed, concluding that article 78 was the appropriate vehicle to challenge respondent’s actions but that there was "no indication that the manual procedure has been violated.” (209 AD2d 180, 181.) We now affirm the Appellate Division order, but on different grounds.

Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party (Sabetay v Sterling Drug, 69 NY2d 329, 333). This State neither recognizes a tort of wrongful discharge nor requires good faith in an at-will employment relationship (Murphy v American Home Prods. Corp., 58 NY2d 293, 297; Ingle v Glamore Motor Sales, 73 NY2d 183, 188). An employee may recover, however, by establishing that the employer made the employee aware of its express written policy limiting its right of discharge and that the employee detrimentally relied on that policy in accepting the employment (see, Weiner v McGraw-Hill, Inc., 57 NY2d 458, 465-466). Where these elements are proved, the employee in effect has a contract claim against the employer.

Mere existence of a written policy, without the additional elements identified in Weiner, does not limit an employer’s right to discharge an at-will employee or give rise to a legally enforceable claim by the employee against the employer.

Petitioner, indisputably an at-will employee, openly acknowledges that he cannot prove the Weiner elements. He was already employed by the Center when respondent assumed responsibility and offers no evidence of detrimental reliance on the Manual. He cannot point to any provision limiting respondent’s right to terminate his at-will employment or obligating it to follow the personnel procedures (see, e.g., Manning v Norton Co., 189 AD2d 971; Patrowich v Chemical Bank, 98 AD2d 318, 322-323). Indeed, respondent expressly reserved the right to revise the Manual and, at the time of petitioner’s discharge, was in the process of updating it.

Petitioner claims, however, that the Weiner elements are inapposite to an article 78 proceeding which alleges solely a failure to abide by the stated procedure for termination and not any breach of substantive rights. Petitioner is in error both as to the nature of his claim and as to the law.

Though he seeks to distance himself from Weiner and its progeny, and thereby avoid the well-established requirements for stating a wrongful discharge cause of action, petitioner’s claim at bottom echoes the claims of unsuccessful plaintiffs in those cases: that an employer’s right to terminate his at-will employment is curtailed by the existence of provisions contained in an employee handbook. Whether provisions relating to just cause or provisions relating to termination procedures, the essential question — the employer’s limitation of its right to discharge an at-will employee — can be no different. Nor does the procedural vehicle chosen for pursuit of that claim determine substantively what the proof must show. The elements of a cause of action against a private corporation based on violation of an employee manual must remain the same whether the claim is portrayed as one for breach of contract or as one technically under article 78 alleging arbitrary and capricious conduct in circumstances where an employee can establish a legal right to rely on provisions of the employee handbook.

Though no decision of this Court stands as precedent for petitioner’s claim, he points to a body of "university” cases as analogous and authoritative. Petitioner relies both on cases where this Court has considered article 78 petitions brought by students challenging private universities’ disciplinary actions (see, e.g., Tedeschi v Wagner Coll., 49 NY2d 652; Matter of Carr v St. John’s Univ., 17 AD2d 632, affd 12 NY2d 802; People ex rel. Cecil v Bellevue Hosp. Med. Coll., 60 Hun 107, affd 128 NY 621), and on Appellate Division decisions granting article 78 relief to academics challenging their employers’ failure to follow personnel rules (see, e.g., Gray v Canisius Coll., 76 AD2d 30).

Whether resting on implied contract with students or faculty, or on the law of voluntary associations, or on other grounds, cases involving educational institutions are distinguishable from the corporate at-will employment question presented by this appeal. "Consistent with the policy of ensuring that academic credentials truly reflect the knowledge and skills of the bearer, the courts have indicated that they will intervene if an institution exercises its discretion in an arbitrary or irrational fashion.” (Olsson v Board of Higher Educ., 49 NY2d 408, 413-414.) Clearly, these cases do not support the proposition that the technical availability of article 78 could circumvent the well-settled law of this State that the existence of a private employer’s written policy does not, in and of itself, limit the right to discharge an at-will employee.

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.

       Neither the present case nor Matter of Hanchard v Facilities Dev. Corp. (85 NY2d 638), where the employer conceded that its right of discharge was limited by the employee manual, calls upon us to delineate the bounds of article 78 relief against private corporations. Though narrowly available here, article 78 is generally not a means for seeking private relief against private corporations.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [657 NE2d 483, 633 NYS2d 462]
    In the Matter of North Shore University Hospital, Respondent, v Margarita Rosa, as Commissioner of the New York State Division of Human Rights, Appellant.
    Argued September 12, 1995;
    decided October 24, 1995

      POINTS OF COUNSEL

      Michael K. Swirsky, New York City, and Lawrence Kunin for appellant.
    I. The Court below displayed undue deference to North Shore’s disparate treatment of Martell based upon the fact that it was a provider of medical services, a standard that threatens the proper enforcement of the Human Rights Law in cases involving discrimination against persons with HIV disease. (School Bd. of Nassau County v Arline, 480 US 273; Matter of Bayport-Blue Point School Dist. v Division of Human Rights, 131 AD2d 849; Elaine W. v Joint Diseases N. Gen. Hosp., 81 NY2d 211; Glanz v Vernick, 756 F Supp 632; Miller v Spicer, 822 F Supp 158; Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 159 AD2d 417; Mayberry v Von Valtier, 843 F Supp 1160.) II. Although the Commissioner’s order was supported by substantial evidence, particularly with respect to her findings on North Shore’s humiliation of Mr. Martell and the implausibility of its defense of medical justification, the Court below erroneously substituted its judgment for that of the Commissioner. (Matter of Comfort v New York State Human Rights Appeal Bd., 101 AD2d 663; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72; State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276; Matter of Club Swamp Annex v White, 167 AD2d 400, 77 NY2d 809; Petri v Bank of N. Y, 153 Misc 2d 426; Ashker v International Bus. Machs. Corp., 168 AD2d 724; Hudson Tr. Lines v State Human Rights Appeal Bd., 47 NY2d 971; Hornick v Noyes, 708 F2d 321, 465 US 1031, 466 US 946.) III. This Court’s decision in Matter of General Motors Corp. v Rosa (82 NY2d 183) may affect this case. (Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 207 AD2d 587; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 207 AD2d 585; Matter of State Div. of Human Rights v Dorik’s Au Natural Rest., 203 AD2d 163; Matter of Corning Glass Works v Ovsanik, 84 NY2d 619.)

      Winston & Strawn, New York City (Anthony J. D’Auria and Anthony DiSarro of counsel), for respondent.
    I. The Court below correctly concluded that the use of additional infection control measures in 1985 was consistent with prevailing medical opinions and practices. (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937; Matter of Pace Coll, v Commission on Human Rights, 38 NY2d 28; Matter of Maloff v Commission on Human Rights, 46 NY2d 908; Matter of State Div. of Human Rights v Oneida County Sheriff’s Dept., 70 NY2d 974; McDonnell Douglas Corp. v Green, 411 US 792; Texas Dept. of Community Affairs v Burdine, 450 US 248; St. Mary’s Honor Ctr. v Hicks, 509 US 502; Barth v CBIS Fed., 849 F Supp 864; Tyler v Bethlehem Steel Corp., 958 F2d 1176; Matter of Syracuse Community Health Ctr. v Wendi A. M., 198 AD2d 830, 83 NY2d 752.) II. The Court below appropriately deferred to petitioner’s medical judgment. (School Bd. of Nassau County v Arline, 480 US 273; Youngberg v Romeo, 457 US 307; Doe v University of Md. Med. Sys. Corp., 50 F3d 1261; Bradley v University of Tex., 3 F3d 922; Leckelt v Board of Commrs. of Hosp. Dist., 909 F2d 820; Elaine W. v Joint Diseases N. Gen. Hosp., 81 NY2d 211; Miller v Spicer, 822 F Supp 158; Glanz v Vernick, 756 F Supp 632; Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 159 AD2d 417.) III. The Commissioner’s order violates due process and improperly awards damages which are grossly excessive. (Matter of General Motors Corp. v Rosa, 82 NY2d 183; Matter of State Div. of Human Rights v Dorik’s Au Natural Rest., 203 AD2d 163; Matter of Corning Glass Works v Ovsanik, 84 NY2d 619; Matter of Syracuse Community Health Ctr. v Wendi A. M., 198 AD2d 830; Matter of New York City Tr. Auth. v State Div. of Human Rights, 160 AD2d 874; Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442; Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 207 AD2d 585; Matter of Horgan v New York State Div. of Human Rights, 194 AD2d 674; Matter of

      Empbanque Capital Corp. v White, 158 AD2d 686; Matter of Domino Supermarket v New York State Div. of Human Rights, 147 AD2d 417.)
   OPINION OF THE COURT

Smith, J.

The primary issue here is whether the State Human Rights Law (Executive Law § 296 [2] [a]) was violated when a medical facility used heightened precautionary measures while treating a patient perceived to be at risk for carrying the AIDS virus. Because the Appellate Division correctly determined that the procedures employed by respondent were supported by sound medical judgment and prevailing medical consensus at that time, we affirm.

In 1985, respondent North Shore University Hospital had an infectious disease protocol in effect at its dental clinic. In an effort to minimize the risk of infection to the patient, the staff and other patients, the treatment of particular patient populations was governed by respondent’s infectious disease protocol. These precautions were defined within respondent’s "strict isolation techniques.” Covered by these infection control measures were persons testing positive for the AIDS virus, hepatitis B, intravenous drug abusers, patients who had received multiple blood transfusions, hemodialysis patients, persons suffering from mononucleosis or tuberculosis, homosexual men and prostitutes.

Although the quality of the dental treatment given to patients covered by the infection protocol was no different from that given other patients, in accordance with the clinic’s strict isolation techniques, special precautions were taken in the rendering of treatment to patients in the populations covered by the infectious disease protocol. Included in these precautions was the marking of the examination room with a small letter "x,” draping the contents of the room with plastic to reduce the risk of contamination from the splatter of saliva or blood, and outfitting physicians and staff with masks, additional gloves, protective eyewear such as goggles instead of regular eyewear, caps and full-body garments such as disposable gowns or scrub suits.

In 1985, the knowledge of medical professionals regarding the contraction and transmission of AIDS was by all accounts limited. Indeed, the first cases of AIDS were not reported in the United States until 1981 (see, Surgeon General’s Rep on AIDS, US Dept of Health and Human Services [1987]; see also, Preventing the Transmission of Hepatitis B, AIDS, and Herpes in Dentistry, US Dept of Health and Human Services [1985]). Further, in the early to mid 1980s, the perception was that simply being a member of specific groups or classes was a tell-tale sign that an individual was at a greater risk of contracting and transmitting the disease (id., at 4). Subsequent research, however, revealed that life-style and behavior patterns played a substantial role in an individual’s contracting the AIDS disease (see, Surgeon General’s Rep on AIDS, op. cit., at 680).

Authorities in the medical community responded by recommending guidelines to prevent the spread of the AIDS virus (see, Infection Control in the Dental Office, 97 J of Am Dental Assn 673 [Oct. 1978]). Although the American Dental Association issued guidelines regarding infection control recommending universal precautions as early as 1977, the widespread AIDS epidemic did not occur until the early 1980s (Surgeon General’s Rep on AIDS, op. cit.). There was no evidence that these guidelines were used to prepare North Shore’s protocol, which was prepared some time around 1983. However, there was evidence that sources from the American Dental Association, Council on Dental Therapeutics of the American Dental Association and the Centers for Disease Control were used in the preparation of North Shore’s protocol. Further, the Centers for Disease Control (CDC) did not issue its "Recommended Infection Control Practices for Dentistry” until April 1986. Prior to the release of the CDC recommendations, health care workers and institutions employed procedures designed to limit the transmission of AIDS as well as balance the protection of patients with the protection of staff similar to procedures used to treat patients with other infectious diseases.

On three occasions in 1985, the complainant, David Martell, visited respondent hospital’s dental clinic. On October 30, 1985, Martell sought emergency dental treatment for a root canal problem from respondent hospital and was treated by a member of respondent’s staff without incident. A follow-up appointment was scheduled for November 15, 1985. Some time between Martell’s first appointment and his follow-up appointment, his treating physician at respondent hospital developed the belief that Martell was a homosexual and consequently might be at a higher risk for AIDS. At his follow-up appointment on November 15, 1985, Martell was questioned about his sexual orientation, any history of intravenous drug use and other subjects, to determine his level of risk of infection with HIV (the AIDS virus), related viruses or contagious diseases. The complainant became upset as a result of the doctor’s questions and left the clinic without receiving treatment. On November 22, 1985, however, Martell returned for a third visit, and was treated in accordance with the clinic’s "strict isolation technique” under its infectious disease protocol. The physicians treating Martell wore masks, two sets of gloves, goggles, full-body disposable gowns, and caps. Additionally, sheets of plastic covered some of the equipment in the room in which Martell received treatment and a small "x” was taped over the door of the treating room.

On December 6, 1985, complainant Martell filed a complaint with the New York State Division of Human Rights (DHR), alleging that because he was perceived as being a member of a high-risk group, he had been denied equal privileges at a public accommodation on the basis of a perceived disability in violation of the Human Rights Law (Executive Law § 296 [2] [a]). The matter was referred for a hearing after a determination was made by DHR that probable cause existed. A hearing was conducted before an Administrative Law Judge (ALJ) at which it was determined that respondent unlawfully discriminated against complainant because of his perceived disability, that the "isolation treatment” caused complainant unnecessary embarrassment and humiliation, and that the hospital’s infectious disease protocol constituted an illegal discriminatory practice.

The Commissioner of DHR determined that the complainant had been subjected to illegal discrimination and had suffered mental anguish as a result. Adopting a number of the ALJ’s proposed findings, the Commissioner ordered respondent hospital to "cease and desist” discriminating because of actual or perceived disability, compensate complainant in the amount of $25,000, cease using a dental protocol dictating different treatment depending on the patient’s "race, color, national origin, marital status, sex or perceived disability,” establish a program providing education to its staff on the transmission of AIDS/HIV, and incorporate universal infection control guidelines for all patients.

In a CPLR article 78 proceeding, respondent hospital sought judicial review pursuant to Executive Law § 298, and, in accordance with the provisions of CPLR 7804 (g) and 7803 (4), the matter was transferred from Supreme Court to the Appellate Division.

The Appellate Division annulled the determination and dismissed the complaint. Citing Executive Law § 296 (2) (a) and Elaine W. v Joint Diseases N Gen. Hosp. (81 NY2d 211), the Appellate Division found that the complainant was provided the dental treatment he required and was not denied any accommodations, advantages, facilities or privileges. The Court held that respondent hospital’s protocol, as part of a bona fide effort to protect both patients and staff, was reasonable, based on prevailing medical consensus at the time.

Appellant, DHR, argues that based on the perception that Martell was infected with HIV, respondent discriminated against complainant by providing disparate treatment. Complainant maintains that he was neither HIV positive nor homosexual. Complainant argues further that respondent’s treatment was humiliating and its defense of medical justification entitled to no deference, as such defense was merely a pretext for discrimination. Respondent argues that the procedures used were supported by sound medical judgment and consistent with the state of medical knowledge on AIDS as of 1985.

The standard for review of administrative action is whether there was substantial evidence to support the finding, in this case, that respondent hospital discriminated against complainant by its disparate treatment. We hold that the administrative agency’s finding of improper discriminatory treatment was not supported by substantial evidence.

Here the burden was on the complainant to establish a prima facie case of discrimination. Complainant alleges that respondent’s treatment of him was discriminatory. Specifically, complainant complains of treatment in an isolated room located at the end of a dark hallway, with all of the equipment draped in plastic, a small "x” on the door and the treating physician and staff outfitted in protective clothing. Upon this showing the burden shifted to North Shore to rebut the presumption of discrimination by putting forth legitimate, nondiscriminatory reasons for the difference in treatment. North Shore did this by showing that at the relevant time, its protocol was reasonable, medically warranted and consistent with its desire to protect patients and staff from the spread of infectious diseases (see, Elaine W. v Joint Diseases N. Gen. Hosp., 81 NY2d, at 217, supra). Once the presumption of discrimination had been rebutted, the complainant had to establish that the reasons proffered " 'were not [the] true reasons, but were a pretext for discrimination.’ ” (See, Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 939, citing McDonnell Douglas Corp. v Green, 411 US 792; and Texas Dept. of Community Affairs v Burdine, 450 US 248; Matter of Maloff v City Commn. on Human Rights, 46 NY2d 908; St. Mary’s Honor Ctr. v Hicks, 509 US 502.)

As to whether a legitimate, nondiscriminatory reason for the difference in treatment has been proffered or merely a pretext for discrimination, respondent hospital established that its decision to treat complainant under its disease protocol was based on prevailing medical knowledge. The perception of the medical professionals that complainant may have presented a greater risk to hospital staff and other patients of infection with a contagious disease, in this case AIDS, supported respondent’s decision to treat Martell with additional infection control precautions. The evidence shows that infection control practices similar to respondent’s were widespread in dental offices in the early 1980s. Clearly, respondent’s disease protocol was consistent with accepted medical practice in 1985 for treatment of patients known or perceived to be at high risk of infection of the then recently discovered, contagious and fatal disease and not a pretext for discrimination. Contrary to the Commissioner’s conclusion, respondent was not limited to the minimum precautions necessary but could take additional precautions which were warranted based on prevailing medical perceptions at the time.

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

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

Judgment affirmed, with costs.


author: Bellacosa, J.

text:
    [657 NE2d 486, 633 NYS2d 465]
    In the Matter of Joseph E. Torre, Appellant, v County of Nassau et al., Respondents.
    Argued September 12, 1995;
    decided October 24, 1995

      POINTS OF COUNSEL

      Hinman, Straub, Pigors & Manning, P. C., Albany (Bartley J. Costello, III, of counsel), for appellant.
    I. The doctrine of legislative equivalency prohibits termination of petitioner in the manner effected by respondents. (Matter of Gallagher v Regan, 42 NY2d 230; Timpano v Hanna, 77 Misc 2d 874, 44 AD2d 912; Matter of Collins v City of Schenectady, 256 App Div 389; Poillucci v Pattison, 95 AD2d 288; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Fullilove v Beame, 48 NY2d 376; Matter of Broidrick v Lindsay, 39 NY2d 641; Koenig v Morin, 56 AD2d 254, 43 NY2d 737.) II. There is no legislative history to support the contention that the Legislature mandated layoffs and the abolition of positions. III. The County Board of Supervisors cannot delegate those powers to abolish petitioner’s position to a department head. (Packer Coll. Inst. v University of State of N. Y. 298 NY 184; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164; Rapp v Carey, 44 NY2d 157; Suffolk County Assn. of Mun. Empls. v County of Suffolk, 175 AD2d 202; Matter of Nicholas v Kahn, 47 NY2d 24; People v Klinck Packing Co., 214 NY 121.) IV. The abolishment of a position is necessary prior to the termination of a permanent employee in the competitive class for reasons of economy. (Koenig v Morin, 56 AD2d 254; Matter of Saur v Director of Creedmoor Psychiatric Ctr., 41 NY2d 1023.) V. In terminating petitioner, the department head not only acted without authority but in bad faith. (Matter of County of Oneida v Berle, 49 NY2d 515; Matter of Moran v La Guardia, 270 NY 450; Matter of Levine v Whalen, 39 NY2d 510.) VI. The budget as adopted by Nassau County is improper in relation to the termination of petitioner. (People v Tremaine, 281 NY 1; Saxton v Carey, 44 NY2d 545.) VII. The Legislature cannot effectively abolish petitioner’s position in the 1993 budget. This is without effect. (Matter of Brayer v Lapple, 58 AD2d 1020; Matter of White v Harrell, 239 App Div 604; Matter of Folkes v Hushion, 283 NY 536; Matter of Roulett v Town of Hempstead, 71 Misc 2d 477, 40 AD2d 611.)

      Snitow & Pauley, New York City (Charles D. Cunningham, William H. Pauley III and William S. Norden of counsel), and Owen B. Walsh, County Attorney of Nassau County, Mineóla, for respondents.
    The Board of Supervisors delegated to the County Executive the authority to abolish appellant’s position. (Matter of Saur v Director of Creedmoor Psychiatric Ctr., 41 NY2d 1023; Matter of Piekielniak v Axelrod, 92 AD2d 968, 59 NY2d 603; Matter of Gallagher v Regan, 42 NY2d 230; Poillucci v Pattison, 95 AD2d 288; Matter of Terrible v County of Rockland, 81 AD2d 837; Matter of Moran v La Guardia, 270 NY 450; Matter of O’Rourke v Graul, 261 App Div 87, 285 NY 755; Matter of Collins v City of Schenectady, 256 App Div 389; Timpano v Hanna, 77 Misc 2d 874, 44 AD2d 912; Matter of Citizens for Orderly Energy Policy v Cuomo, 78 NY2d 398.)

      Gaba & Stober, P. C, Mineola (Louis D. Stober of counsel), and Nancy Hoffman for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.

    I. The 1991-1992 deficit situation was handled improperly and inconsistently by Nassau County. (People v Tremaine, 281 NY 1; Matter of Cioci v Mondello, 153 Misc 2d 312; Matter of County of Oneida v Berle, 49 NY2d 515.) II. Appellant’s position was not properly abolished by the Board of Supervisors. (Matter of Gallagher v Regan, 42 NY2d 230; Matter of O’Rourke v Graul, 261 App Div 87, 285 NY 755; Timpano v Hanna, 77 Misc 2d 874, 44 AD2d 912; Matter of Collins v City of Schenectady, 256 App Div 389; Poillucci v Pattison, 95 AD2d 288; Matter of Brayer v Lapple, 58 AD2d 1020, 44 NY2d 741; Koenig v Morin, 56 AD2d 254.) III. The Board of Supervisors is not permitted to delegate its legislative powers. (People v Klinck Packing Co., 214 NY 121; Matter of O’Rourke v Graul, 261 App Div 87, 285 NY 755.)
   OPINION OF THE COURT

Bellacosa, J.

This case involves a Nassau County Probation Department attorney who was fired as part of the County’s effort to deal with a major revenue shortfall by enactment in December 1991 of its 1992 budget. The attorney sued to regain his job and this Court granted him leave to appeal from an Appellate Division order dismissing his case.

The central issue the employee raises is whether Nassau County violated the doctrine of legislative equivalency (Matter of Gallagher v Regan, 42 NY2d 230) by attempting to delegate the authority to abolish a position of employment originally created by County ordinance. Under the Nassau County Charter and governing precedents, only the Board of Supervisors possesses the power to abolish this employee’s position. Because established procedures were not followed with respect to the 1991 effort to cut this job from the County’s roster, we now reverse.

The Nassau County Charter was enacted by the State Legislature in 1936 pursuant to article 4 of the Municipal Home Rule Law (see, L 1936, ch 879). On November 12, 1991, the Nassau County Executive prepared the proposed budget for the ensuing fiscal year and submitted it to the Board of Supervisors for approval (see, Nassau County Charter §§ 202, 302). On December 16, 1991, the County Board of Supervisors enacted ordinance No. 519-A-1991 as the 1992 Nassau County Budget.

Due largely to a lack of growth in sales tax revenues in 1991, County officials were struggling with an estimated budget deficit of approximately $115 million. To avoid tax increases, the Board sought to impose substantial reductions in payroll appropriations for all County agencies, which included the Probation Department. The reductions reflected proposals from the County Executive.

As enacted, the 1992 budget listed separate line item appropriations for each position within the County Probation Department, for a total of $4,533,001. A separate line item for appellant’s position, along with a listing of its annual salary, remained in the budget ordinance. The summary, however, of the line item listings reflected an unspecified lump-sum $1,229,060 salary reduction from appropriations for the Probation Department. Its total appropriation was thus to be reduced to $3,303,941.

Unlike prior years’ practice, the Board of Supervisors did not enact in 1992 a separate salary ordinance which specifically listed all continued and abolished County positions. Rather, the County alleges that the 1992 budget ordinance merged the salary specifications in a single budget appropriatians ordinance. For this first time, the Board argues that it delegated to the Director of the Department of Probation, through the County Executive, the responsibility for allocating the particular salary reductions and, in effect, cutting the particular jobs to balance with the total reduced departmental appropriation (see, Nassau County ordinance No. 519-A-1991).

Torre started as an employee in Nassau County’s Probation Department in June 1968. Ten years later, in 1978, after qualifying and passing an open competitive examination, he was promoted to the position of "Probation Attorney II.” In 1979, due to a County budget shortfall, his job was targeted for elimination but he successfully litigated the cut and was reinstated. Torre received the written dismissal notification at issue here on February 5, 1992, from the Director of the Nassau County Department of Probation. No issue of misconduct is involved, only budgetary payroll considerations (compare, Civil Service Law §§ 75, 80).

Torre sued once again to keep his job. Supreme Court, Suffolk County, granted his petition and ordered him reinstated with back pay and benefits. The Appellate Division reversed, on the law, and dismissed the petition, holding, in part, that the Board, through passage of ordinance No. 519-A-1991, "authorized the abolition of the petitioner’s position, by directing the department head to reduce the budget, and by investing the department head with the authority to effectuate layoffs” (208 AD2d 850, 851). We now reverse and basically reinstate the Supreme Court judgment.

On the state of this record and the submissions of the parties, the back pay and other benefits for petitioner-appellant Torre in connection with this reinstatement to his position should be limited to the 1992 budget year. Inasmuch as Torre’s job was incontrovertibly eliminated as of 1993, we are satisfied that Matter of Brayer v Lapple (58 AD2d 1020, affd 44 NY2d 741) is distinguishable under the circumstances of this case, and that the back-pay remedy of that case should not be available in this proceeding.

The parties do not dispute the fact that Torre’s position was created by County ordinance. Appellant focuses his argument on the fact that the County did not comply with the doctrine of legislative equivalency because it failed to abolish his position by County ordinance. Moreover, he argues, that even in an equivalent ordinance, the Board of Supervisors could not legally delegate ultimately to the agency head the authority to terminate a competitive civil service position created by prior separate ordinance.

The County responds that the 1992 budget was an ordinance that satisfied the doctrine of legislative equivalency (see, Poillucci v Pattison, 95 AD2d 288; Matter of Terrible v County of Rockland, 81 AD2d 837), and that the Board properly gave the County Executive the broad authority to work with the agency heads to abolish positions, including the one at issue here.

County Law § 204 empowers the legislative arm of a county government to establish and abolish positions of employment and provides: "The establishment and abolition of such positions may be by local law, by resolution or by the adoption of the budget.” In Matter of Gallagher v Regan (42 NY2d 230, supra), this Court articulated the checks-and-balances principle for such controversies, known as the doctrine of legislative equivalency. It applies to the operation of County Law § 204.

Legislative equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act (see, Matter of New York Pub. Interest Research Group v Dinkins, 83 NY2d 377, 385; Matter of Moran v La Guardia, 270 NY 450, 452; Noghrey v Town of Brookhaven, 214 AD2d 659; 3 McQuillin, Municipal Corporations § 12.121, at 564 [3d ed]). Recently, this Court instructively ruled that a budget resolution of the City of New York could not abolish an office created by the City Charter (see, Matter of New York Pub. Interest Research Group v Dinkins, 83 NY2d 377, supra). Earlier guideposts teach that a statute may not be repealed by concurrent resolution of the Legislature (Matter of Moran v La Guardia, 270 NY 450, supra), and that a position created by resolution adopted by a City Council may not be abolished by a City Commissioner (Matter of O’Rourke v Graul, 261 App Div 87, 90, affd 285 NY 755).

A key ingredient of the rationale in Matter of Gallagher v Regan (42 NY2d 230, supra) is that positions established by a budgetary process may not be extinguished by legislative adoption of a subsequent budget resolution that withdraws or lessens the County Executive’s checks-and-balance authority exercised, for example, through line item veto power applicable to the budgetary process (id., at 234). Thus, the Court held that the legislative act in Gallagher did not accomplish what would have operated as an amendment of the Erie County Charter and Administrative Code by abolishing offices previously created (id., at 234). Similarly, in Matter of Moran v La Guardia (270 NY 450, 452, supra), the Court summarized the principle this way: "To repeal or modify a statute requires a legislative act of equal dignity and import.”

Article 1 of the Nassau County Charter designates the Board of Supervisors as the governing body of the County and grants the Board "all the powers and duties of the county together with all the powers and duties which now are, or may hereafter be conferred or imposed on boards of supervisors by laws applicable to such county” (Nassau County Charter § 102). Nassau County Charter § 103 (1) provides that the Board has the power to "create, organize and abolish departments, bureaus, offices and employments.” Charter § 105 authorizes the Board to act by ordinance, resolution and local law.

Pursuant to these sections, the Board of Supervisors created Torre’s position by County ordinance through adoption of the budget with a salary line for Probation Attorney II. The ordinance that first created the petitioner’s position, and those that continued it each year thereafter, were explicit in "lining in” the position with its effective date and salary. By formally creating and continuing the position by County ordinance, the Board circumscribed its own authority to abolish the position by a legislative act of less dignity and import (see, Matter of Gallagher v Regan, supra; Matter of Moran v La Guardia, supra). Nothing less than another County ordinance would suffice to strike this job from the rolls, as was concededly effectuated at the end of 1992 for the 1993 budget year.

The 1992 budget constituted a County ordinance. The 1992 budget ordinance plainly carried Torre’s job along with his annual salary, indicating a legislative intent not to execute the painful act of abolishing the job. The County takes the position that the budget’s total salary reduction line, construed with the provisions of the Nassau County Charter (see, Nassau County Charter §§ 103, 204), authorized the County Executive to subsequently pinpoint positions for elimination. At best, this would create an ambiguous and uncertain state of authority, hardly satisfying the doctrine of legislative equivalency. But the more profound defect in this part of the County’s reasoning is the delegation feature.

Nassau County Charter § 103 (1) gives the Board alone the power to "create, organize and abolish departments, bureaus, offices and employments.” Nassau County Charter § 204 does contain a delegation power flowing from the Board of Supervisors to the County Executive. It states that: "The board of supervisors may by ordinance devolve upon the county executive the exercise or performance of any of its powers and duties, except those which it must exercise or perform by ordinance, as provided in this act or any other law of this state, and except other powers and duties of a distinctly legislative character” (emphasis added).

Thus, the County Charter itself expressly prohibits the Board from delegating to the County Executive a duty "which it must exercise or perform by ordinance.” This syllogism should help to answer the controversy: (1) under County Charter § 103, the Board of Supervisors created Torre’s position by enacting a County ordinance; (2) under the doctrine of legislative equivalency, the Board may abolish the position only by the passage of a County ordinance, or its legislative equal; (3) ordinance No. 519-A-1991 does not qualify or comply, because the Nassau County Charter prohibits the delegation of acts that must be performed by ordinance; and (4), ergo, the Board of Supervisors could not accomplish the bottom line elimination of Torre’s job by diverting its authority and responsibility to the County Executive, who, in turn, apparently tried to delegate the undesirable burden to an agency head. In this case, the purported delegation is twice removed from the singular entity charged by law with explicitly executing its heavy impact affecting public employees’ livelihoods. The County Charter does not permit the Board of Supervisors to ship its power that far down the chain of responsibility.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated in accordance with this opinion.

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

Order reversed, etc.


author: Titone, J.

text:
    [657 NE2d 769, 633 NYS2d 754]
    Marilyn G. Scott, Appellant, v Massachusetts Mutual Life Insurance Company et al., Respondents.
    Argued September 13, 1995;
    decided October 19, 1995

      POINTS OF COUNSEL

      Nira T. Kersmich, Rochester, for appellant.
    I. Executive Law § 296 (13) applies to independent contractors. (Mehtani v New York Life Ins. Co., 145 AD2d 90; Holly v Pennysaver Corp., 98 AD2d 570.) II. Plaintiff was an employee of defendants. (Mehtani v New York Life Ins. Co., 145 AD2d 90, 74 NY2d 835, Matter of 12 Cornelia St. [Ross], 56 NY2d 895; Matter of Sirotkin Travel [Ross], 63 AD2d 1095; Rosenberg v Equitable Life Assur. Socy., 79 NY2d 663; Matter of Goldstein [Roberts], 61 NY2d 937.)

      Nixon, Hargrave, Devans & Doyle, Rochester (Marion Blankopf of counsel), for Massachusetts Mutual Life Insurance Company, respondent.
    The courts below correctly held that plaintiff failed to state a claim for discrimination under the Human Rights Law because she was not a Massachusetts Mutual employee. (Mehtani v New York Life Ins. Co., 145 AD2d 90, 74 NY2d 835, 85 NY2d 806; Jews for Jesus v Jewish Community Relations Council, 79 NY2d 227; International Bus. Machs. Corp. v Jennifer-Ashley Co., 872 F Supp 1256; Holly v Pennysaver Corp., 98 AD2d 570; Matter of Engel v Calgon Corp., 114 AD2d 108, 69 NY2d 753; Frishberg v Esprit De Corp., 778 F Supp 793, 969 F2d 1042; Krijn v Simone Real Estate Co., 752 F Supp 102, 930 F2d 910; Nationwide Mut. Ins. Co. v Darden, 503 US 318; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725.)

      Phillips, Lytle, Hitchcock, Blaine & Huber, Rochester (Mark L. Suher and Gerald L. Paley of counsel), for G. James Blatt, respondent.
    I. The Court below properly found that Executive Law § 296 (13) provides no cause of action for discrimination in connection with the cancellation of a contract unrelated to a commercial boycott or blacklist. (International Bus. Machs. Corp. v Jennifer-Ashley Co., 872 F Supp 1256; Mehtani v New York Life Ins. Co., 145 AD2d 90, 74 NY2d 835, 85 NY2d 806; Holly v Pennysaver Corp., 98 AD2d 570; Harvey v NYRAC, Inc., 813 F Supp 206; West v Mohawk Commercial Carpets, 183 AD2d 182.) II. The Court below properly found that, as an independent contractor, plaintiff failed to state a cause of action for employment discrimination under section 296 (1) (a) of the Human Rights Law. (Mehtani v New York Life Ins. Co., 145 AD2d 90, 74 NY2d 835, 85 NY2d 806; Frishberg v Esprit De Corp., 778 F Supp 793, 969 F2d 1042; Matter of Engel v Calgon Corp., 114 AD2d 108, 69 NY2d 753; Matter of 12 Cornelia St. [Ross] 56 NY2d 895; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725.)
   OPINION OF THE COURT

Titone, J.

Plaintiff insurance agent brought a discrimination claim against defendant insurance company for termination of her agency contract allegedly on the basis of her gender, age and marital status. The question before us is whether the suit may be predicated on Executive Law § 296 (1) (a), which prohibits discrimination in employment, or under section 296 (13), which prohibits discrimination in commerce or trade. For the following reasons, we affirm the holdings of the courts below that plaintiff could not avail herself of the protections of either section under the circumstances of this case.

Defendant G. James Blatt runs a "general agency” through which he markets the insurance products of defendant Massachusetts Mutual Life Insurance Company. In 1981, defendant Blatt hired plaintiff Marilyn Scott as an insurance agent under a career contract. In 1987, plaintiff became a district manager responsible for running a separate agency for defendant at a new location and for recruiting insurance agents to expand the company’s markets. The agreement contained in the career contract executed by the parties in 1981 stated that "[njothing in this contract shall be construed as creating the relationship of employer and employee between” defendants and plaintiff. Both the career contract and the district manager contract were terminable at will by either party.

Defendant Blatt terminated plaintiff’s career contract and series 6 license to sell certain mutual funds and annuities in June 1992. Plaintiff then commenced this action in December 1992 against both defendants pursuant to New York State’s Human Rights Law (Executive Law § 290 et seq.). Plaintiff alleged that defendant Blatt discriminated against her in employment by refusing to promote her, and by terminating her agency contract and her series 6 license, on the basis of her gender, age and marital status, and that defendant Massachusetts Mutual is liable as Blatt’s employer for his acts, which it ratified. Defendants moved for summary judgment dismissing the complaint, contending that, as an independent contractor, plaintiff was not entitled to bring a claim under the Human Rights Law. In response, plaintiff contended that she was defendants’ employee, and could proceed pursuant to Executive Law § 296 (1) (a), and alternatively that Executive Law § 296 (13) covers discrimination against independent contractors in these circumstances.

Supreme Court granted defendants’ motion and dismissed the complaint. The court concluded that plaintiff was an independent contractor not eligible for protection under Executive Law § 296 (1) (a) and had failed to raise a triable issue of fact concerning her claimed status as an "employee.” The court also rejected plaintiffs claim that the suit could be brought pursuant to Executive Law § 296 (13), holding that "that subdivision * * * is aimed at curbing discrimination in a wide range of commercial activity, such as commercial boycotts and blacklisting.” The Appellate Division affirmed, without opinion. We granted plaintiffs motion for leave to appeal, and now affirm.

Plaintiff first seeks to pursue her discrimination claim under Executive Law § 296 (1) (a). That section provides that "[i]t shall be an unlawful discriminatory practice * * * [f|or an employer * * * because of the age, race, creed, color, national origin, sex, or disability, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

Proceeding from the position that this section governs discrimination only in traditional employer/employee relationships, and not in the employment of independent contractors, plaintiff contends only that dismissal of her claim pursuant to Executive Law § 296 (1) (a) on summary judgment was improper because she has raised a triable issue concerning whether she was, in fact, defendant Massachusetts Mutual’s employee rather than an independent contractor. We disagree.

It is by now well settled that "a determination that an employer-employee relationship exists may rest upon evidence that the employer exercises either control over the results produced or over the means used to achieve the results” (Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726). Minimal or incidental control over one’s work product without the employer’s direct supervision or input over the means used to complete it is insufficient to establish a traditional employment relationship (id.).

Here, the parties’ submissions on defendants’ summary judgment motion establish that plaintiff was responsible for financing her own operating expenses and support staff, was paid by performance rather than a salary, did not have Federal, State or local taxes withheld from her pay, could sell competitors’ products and had agreed by contract to operate as an independent contractor. Although plaintiff alleges that she was required to recruit and train agents according to defendant Massachusetts Mutual’s guidelines, that was true only for agents whose hiring was financed by defendant and not by plaintiff, and, in any event, reflects only minimal control over plaintiff’s own work. Additionally, the facts that plaintiff was compelled to attend regular company meetings and was asked to draw up a job description for her position are not inconsistent with her status as an independent contractor. Rather, the submissions establish, at most, that defendants exercised minimal control over plaintiff’s own daily work product.

The only conclusion to be drawn from these facts is that plaintiff operated her office with a high degree of independence not found in a traditional employer/employee relationship (see, Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897-898). Thus, because plaintiff has failed to raise a material issue of fact concerning her employment status or the degree of control defendants exercised over the means she used to perform her work, the motion to dismiss her claim under Executive Law § 296 (1) (a) was properly granted (see, Mehtani v New York Life Ins. Co., 145 AD2d 90, 94).

Plaintiff alternatively argues that, even assuming she was an independent contractor, her discrimination claim may proceed under Executive Law § 296 (13). Plaintiff has failed to allege any facts that bring her claim within this provision.

Executive Law § 296 (13) provides, in full, that "[i]t shall be an unlawful discriminatory practice (i) for any person to discriminate against, boycott or blacklist, or to refuse to buy from, sell to or trade with, any person, because of the race, creed, color, national origin or sex of such person, or of such person’s partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers or customers, or (ii) for any person willfully to do any act or refrain from doing any act which enables any such person to take such action. This subdivision shall not apply to: (a) Boycotts connected with labor disputes; or (b) Boycotts to protest unlawful discriminatory practices” (emphasis added).

Apparently unable to allege that defendants engaged in a formal boycott or blacklisting of females or persons of plaintiff’s age or marital status, plaintiff instead submits that her claim, which alleges general discrimination by defendants against her, falls within the conduct covered by section 296 (13) when the statutory language italicized above is isolated from the remainder of the section’s terms. This contention does not withstand scrutiny.

Under settled precepts of statutory construction, the italicized language should not be read in isolation, but within the context of the entire statute, giving relative meaning and effect to each of the section’s remaining terms (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 98). The statute’s specific reference to boycotts, blacklisting and refusals to deal indicates that this subdivision of the Human Rights Law is directed at curbing, in particular, types of business practices that involve the concerted use of economic means to disadvantage the trade or commercial activities of a member of a targeted group (see, Black’s Law Dictionary [6th ed], definitions of boycott and blacklist; see also, Holly v Pennysaver Corp., 98 AD2d 570, 572). Since the term "discriminate” immediately precedes the list of terms including boycott, blacklisting and refusals to trade, that term should be construed to refer to similar types of commercial activity.

Indeed, were we to accept plaintiffs approach and conclude that the statute outlaws general discrimination by “any person” against "any person,” there would be no need for the numerous remaining subdivisions of the statute, which prohibit particular discriminatory practices in certain well-defined areas, such as in residential rental leases (see, e.g., Executive Law § 296 [2-a]), in places of public accommodation or amusement (id., § 296 [2] [a]), in defining membership on a real estate board (id., § 296 [5] [d]) or in referral services provided to applicants by an employment agency (see, id., §296 [1] [b]). Accordingly, we decline to adopt an interpretation of the intended scope of section 296 (13) which would render the statute’s remaining provisions mere surplusage.

In any event, any ambiguity in the scope of conduct prohibited by the statute is quickly dissipated by reference to its legislative history, which reveals the single-minded purpose of the new law. Enacted in 1975, and commonly referred to as the "Arab Boycott Law” (see, Mehtani v New York Life Ins. Co., 145 AD2d 90, 95, supra), section 296 (13) was designed specifically to address such then-prevalent evils as the use by Arab OPEC nations of their "new-found economic strength * * * to discriminate against and boycott certain religious and ethnic groups” (Bill Jacket, L 1975, ch 662, Cosponsor Anderson’s Mem in Support), as well as apartheid practices employed in South Africa and Rhodesia (id., Mem of Cosponsor Steingut).

While the enactment found its impetus in the Arab boycott of Jewish businesses, it was drafted more broadly to prohibit not only boycotts imposed by foreign entities, but any business tactics, utilized in New York State or against a New York resident or corporation, which are driven by "religious or racial bigotry” (Governor Carey’s Mem of Approval, 1975, NY Legis Ann, at 442, 443) or other prohibited discriminatory animus (see, Holly v Pennysaver Corp., 98 AD2d 570, 572, supra). Thus, although a liberal reading of this type of remedial statute is warranted for the accomplishment of its purposes (see, City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 428), the reading plaintiff advances would not promote the purpose of this section, which is to curb types of "economic warfare” used as part of a scheme to injure a New York resident or domestic corporation in national or international business because of ethnicity, gender or other protected status (Bill Jacket, L 1975, ch 662, Budget Report on Assembly Bill No. 7640-B; see also, id., State Div of Human Rights Letter to Governor’s Counsel [the bill "is intended to deal with boycotts in connection with business and not with personal matters, such as the activities of individuals who prefer to buy their food from persons of their own race or creed * * * or who wish to boycott grapes to support the United Farm Workers Union”]).

Importantly, the absence of evidence of a formal boycott or blacklisting campaign will not be fatal to a discrimination claim under section 296 (13). For example, evidence establishing that a defendant engaged in a pattern of conduct that commercially disadvantaged only members of a protected class may be sufficient to defeat a summary judgement motion (see, e.g, Harvey v NYRAC, Inc., 813 F Supp 206 [ED NY 1993] [claim that defendant’s refusal to rent luxury car was racially motivated rather than residence-based survived motion for summary judgment where plaintiff submitted proof that defendant’s stated policy of declining to rent to residents of a certain borough was not applied to all residents of borough]).

Applying those principles to this case, we conclude that plaintiff’s discrimination claim under Executive Law § 296 (13) was properly dismissed. Assuming that the termination of plaintiffs agency contract qualifies as business conduct or, more specifically, a refusal to trade within the statute’s scope, plaintiff has otherwise failed to submit sufficient proof to establish that the contract termination was propelled by or a result of defendants’ desire to collectively discriminate against a protected class that includes plaintiff (see, West v Mohawk Commercial Carpets, 183 AD2d 182, 183). Plaintiff has not shown that the termination was the result of a blacklisting or commercial boycott of women, or of persons of her age or marital status (Mehtani v New York Life Ins. Co., 145 AD2d, at 95, supra; cf., Holly v Pennysaver Corp., 98 AD2d 570, supra). Nor has she alleged any facts to establish that the contract cancellation was part of a larger pattern of dealing or policy instituted by defendants in a concerted effort to disadvantage females economically. Plaintiffs bare allegations that no other women had achieved district manager status in defendant’s company, without some other proof establishing, for example, a policy or pattern of rejection of qualified females who had applied for such posts, is insufficient to defeat defendants’ motion for summary judgment.

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

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

Order affirmed, with costs.


author: Ciparick, J.

text:
    [657 NE2d 773, 633 NYS2d 758]
    Thomas F. Hartnett, as Commissioner of Labor of the State of New York, Appellant, v New York City Transit Authority, Respondent. Thomas F. Hartnett, as Commissioner of Labor of the State of New York, Appellant, v New York City Transit Authority, Respondent.
    Argued September 12, 1995;
    decided October 26, 1995

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, New York City (M. Patricia Smith, Victoria A. Graffeo, Peter H. Schiff and James M. Williams of counsel), for appellant in the first above-entitied action.
    The Court below incorrectly applied a three-year limitations period to public employee safety and health discrimination actions. (Olcott v Tioga R. R. Co., 20 NY 210; Marshall v Intermountain Elec. Co., 614 F2d 260; Donovan v Square D Co., 709 F2d 335; Baker v Board of Educ., 70 NY2d 314; Curry v Chollette, 57 AD2d 604; Mencher v Richards, 256 App Div 280; Sears, Roebuck & Co. v Eneo Assocs., 43 NY2d 389; Mayfield v First Natl. Bank, 137 F2d 1013; Eberhard v Aetna Ins. Co., 134 Misc 386.)

      Evelyn Jonas, Brooklyn, and Albert C. Cosenza for respondent in the first above-entitled action.
    This action is barred by the three-year Statute of Limitations pursuant to CPLR 214 (2). (Guaranty Trust Co. v United States, 304 US 126; Cerio v Charles Plumbing & Heating, 87 AD2d 972; Connell v Hayden, 83 AD2d 30; Vastola v Maer, 48 AD2d 561, 39 NY2d 1019; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Solnick v Whalen, 49 NY2d 224; Press v County of Monroe, 50 NY2d 695; Lenihan v City of New York, 58 NY2d 679; Bryden v Wilson Mem. Hosp., 136 AD2d 843; Murphy v American Home Prods. Corp., 58 NY2d 293.)

      Dennis C. Vacco, Attorney-General, New York City (M. Christina Norum, Victoria A. Graffeo, Peter H. Schiff and M. Patricia Smith of counsel), for appellant in the second above-entitled action.
    The Court below erred in holding that the 30-day time period for filing a public employee safety and health discrimination complaint with the Department is not waivable by the Commissioner. (Matter of Hartnett v Village of Ballston Spa, 152 AD2d 83; Matter of Bernstein v Toia, 43 NY2d 437; Securities Commn. v Chenery Corp., 332 US 194; Donovan v Hahner, Foreman & Harness, 736 F2d 1421; Donovan v Peter Zimmer Am., 557 F Supp 642; Donovan v Diplomat Envelope Corp., 587 F Supp 1417, 760 F2d 253; Munoz v Aldridge, 894 F2d 1489; Boyd v United States Postal Serv., 752 F2d 410; Oaxaca v Roscoe, 641 F2d 386; Huntley v Department of Health, Educ. & Welfare, 550 F2d 290.)

      Edward F. Zagajeski, Brooklyn, and Albert C. Cosenza for respondent in the second above-entitled action.
    The 30-day period for filing complaints pursuant to the Public Employee Safety and Health Act is a Statute of Limitations, and this action based on a complaint filed beyond the 30-day period is time-barred. (Donovan v Hahner, Foreman & Harness, 736 F2d 1421; Donovan v Peter Zimmer Am., 557 F Supp 642; Powell v Globe Indus., 431 F Supp 1096; Greenwald v City of N. Miami Beach, Fla., 587 F2d 779, 444 US 826; Electrical Workers v Robbins & Myers, 429 US 229; Matter of Cordero v Corbisiero, 80 NY2d 771; Matter of J. D. Posillico, Inc. v Department of Transp., 160 AD2d 1113; Donovan v Diplomat Envelope Corp., 587 F Supp 1417, 760 F2d 253; Matter of Bliss v Bliss, 66 NY2d 382; Orange & Rockland Utils, v Amerada Hess Corp., 59 AD2d 110.)
   OPINION OF THE COURT

Ciparick, J.

These combined appeals present two issues: the appropriate Statute of Limitations applicable to actions commenced under Labor Law § 27-a, the Public Employee Safety and Health Act (PESHA), and whether the Commissioner of Labor is precluded from bringing a lawsuit under PESHA where the complaining employee failed to file a complaint with the Commissioner within the 30-day time period prescribed in Labor Law § 27-a (10) (b). The action in Hartnett I should be dismissed as time-barred since the three-year Statute of Limitations of CPLR 214 (2) applies to PESHA actions. In Hartnett II, we hold that the 30-day filing requirement is not a Statute of Limitations and may be waived by the State Commissioner of Labor. Nonetheless, the Hartnett II action should also be dismissed because it was not commenced within the limitations period of CPLR 214 (2).

Hartnett I

According to the complaint, on March 31, 1987, defendant New York City Transit Authority assigned four track workers to do outdoor work under allegedly hazardous conditions. The workers, fearing for their safety, refused to perform the work and requested reassignment to a less dangerous worksite. The supervisor sent the track workers home. They lost the day’s pay and were suspended for three days as a result of the incident. On April 29, 1987, the Transport Workers’ Union, Local 100, filed a complaint with the New York State Department of Labor, alleging that defendant suspended the workers for refusing to work under hazardous conditions, and seeking an order finding that defendant discriminated against the workers in violation of PESHA, awarding them back pay, and expunging the incident from the workers’ personnel file. More than three years later, in May 1990, the Commissioner referred the complaint to the Attorney-General, who commenced this action in May 1991, seeking back pay and injunctive and declaratory relief. Defendant moved to dismiss the complaint as untimely under the three-year Statute of Limitations of CPLR 214 (2). Supreme Court denied the motion, agreeing with the Commissioner that the complaint sought an equitable remedy and was therefore subject to a six-year Statute of Limitations. The Appellate Division reversed on the law, granted defendant’s motion and dismissed the complaint, concluding that because the Legislature enacted PESHA to create "a newly cognizable cause of action to protect employees who complained about unsafe working conditions” (200 AD2d 27, 29), actions brought under PESHA are governed by CPLR 214 (2), which provides for a three-year limitations period in "an action to recover upon a liability, penalty or forfeiture created or imposed by statute.” This Court granted the Commissioner’s motion for leave to appeal.

Hartnett II

On August 28, 1986, defendant assigned a 16-member crew to open and lay out bundles of railroad ties as part of the installation of new rails and ties on a local track. Twelve of the workers refused to perform this task because of slippery conditions and the presence of water in close proximity to a live third rail. The next day each of the 12 workers was charged with insubordination and suspended for 10 days. The workers and Local 100 appealed the disciplinary charges pursuant to the grievance procedures of the collective bargaining agreement and the suspension was reduced to three days. On October 31, 1986, 63 days after the workers were suspended, Local 100 filed a complaint on their behalf with the Department of Labor. The Department investigated the complaint and determined that defendant had discriminated against the 12 workers in violation of PESHA. The complaint was referred to the Attorney-General, who commenced this action on March 21, 1991.

Defendant moved to dismiss the action as barred by the 30-day limitation period for filing employee complaints with the Department of Labor under Labor Law § 27-a (10), as well as by CPLR 214 (2)’s three-year Statute of Limitations. Supreme Court granted the motion to dismiss the complaint based on failure to file the complaint with the Commissioner within the 30-day limitations period. The Appellate Division affirmed. Relying on Federal decisions interpreting the United States Occupational Safety and Health Act (29 USC § 651 et seq.) (OSHA), upon which PESHA is based, the Appellate Division concluded that the 30-day period is mandatory, rather than directory, and that an action based on a complaint not filed within that time period must be dismissed. The Court declined to reach the CPLR Statute of Limitations issue. This Court granted the Commissioner’s motion for leave to appeal.

PESHA

The Legislature enacted PESHA in 1980 to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA (see, Governor’s Approval Mem, 1980 NY Legis Ann, at 285). Under PESHA, public employers must provide employees with workplaces that are free of recognized hazards likely to cause serious physical injury and which reasonably and adequately protect their lives, safety and health (Labor Law §27-a [3] [a]). Section 27-a (5) encourages employees and their representatives to report violations of health and safety standards, while subdivision (10) makes it unlawful to discharge, discipline or in any manner discriminate against any employee "because of the exercise by such employee on behalf of himself or others of any right afforded by this section.” Furthermore, "[a]ny employee who believes that he has been discharged, disciplined, or otherwise discriminated against by any person in violation of this subdivision may, within thirty days after such violation occurs, file a complaint with the commissioner” (Labor Law § 27-a [10] [b]). PESHA does not expressly provide victims of discrimination with a private right of action, nor does it specify the Statute of Limitations applicable to actions brought under its provisions.

Hartnett I

The issue in Hartnett I is whether a three-year (CPLR 214 [2]) or six-year (CPLR 213 [1]) Statute of Limitations applies. Resolution of this issue is determinative of the case because the suit is timely only under the six-year Statute of Limitations.

It is the Commissioner’s position that since PESHA does not specify a limitations period, and a PESHA action seeks relief of an equitable nature, the appropriate limitation period is six years under CPLR 213 (1), the "residual” Statute of Limitations which governs actions in equity. The Commissioner concedes that PESHA is a creature of statute unknown at common law, but argues that CPLR 214 (2) is nonetheless inapplicable because an action under PESHA cannot be considered one to "recover upon a liability” within the meaning of that rule. Instead, the Commissioner urges this Court to ascribe dispositive significance to the fact that PESHA’s remedies are equitable in nature.

At the outset, we note that CPLR 213 (1) is not necessarily or automatically applicable simply because PESHA does not specify a limitations period. Rather, in the absence of a limitation period specifically governing the claim at issue, "it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought” (Solnick v Whalen, 49 NY2d 224, 229; see, Press v County of Monroe, 50 NY2d 695). Such an examination here reveals that the rights created, and duties imposed, exist only by virtue of PESHA, which prohibits discrimination against public employees who assert their rights under that statutory scheme.

Furthermore, it is settled that in determining the applicability of CPLR 214 (2), the pertinent inquiry is whether the statute creates a liability "for wrongs not recognized in the common or decisional law,” and which would not exist but for the statute (State of New York v Cortelle Corp., 38 NY2d 83, 86; see, Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175; State of New York v Stewart’s Ice Cream Co., 64 NY2d 83, 88; Murphy v American Home Prods. Corp., 58 NY2d 293, 307; Siegel, NY Prac § 35, at 41 [2d ed]). As noted, it is undisputed that Labor Law § 27-a (10) creates a cause of action unknown in the common law.

It is the Commissioner’s contention, however, that CPLR 214 (2) is inapplicable because the term "liability,” as it is used in that rule, refers only to obligations measurable in money damages. We reject this overly restrictive construction of the phrase "recover upon a liability * * * created or imposed by statute” (CPLR 214 [2]). As the Appellate Division aptly observed, "liability,” as a legal term, has an appreciably broader meaning than pecuniary obligations. Black’s Law Dictionary, for instance, defines liability as a "broad legal term” having "the most comprehensive significance, including almost every character of hazard or responsibility” (1990, at 914 [6th edj). Furthermore, courts have rejected the proposition that "liability” means money damages only (see, Krenger v Pennsylvania R. R. Co., 174 F2d 556, 558-559 [2d Cir]; Mayfield v First Natl. Bank, 137 F2d 1013, 1019 [6th Cir]). In Bevelander v Town of Islip (10 AD2d 170, 172), the Court expounded upon the term "liability” as it was used in Civil Practice Act § 48 (2), one of the three sections of the Civil Practice Act consolidated into what is now CPLR 214 (2): "A proper test of whether a particular liability is one that was created by statute is to determine whether the liability is 'a governmental statutory denouncement of a human action heretofore undenounced’ ” (quoting Fratt v Robinson, 203 F2d 627, 635). Applying these definitions, this PESHA action is manifestly one to recover upon a liability created by statute, to which CPLR 214 (2) clearly applies. This action was properly dismissed as untimely.

We note that Baker v Board of Educ. (70 NY2d 314) does not aid the Commissioner here, inasmuch as the question of CPLR 214 (2)’s applicability was not before the Court in that case. Finally, the Commissioner’s argument that a three-year limitations rule impermissibly or improperly conflicts with the rule applied in antidiscrimination cases under OSHA, where only the equitable doctrine of loches bars stale claims, is unpreserved for our review, as the issue was not raised in Supreme Court.

Hartnett II

In Hartnett II we address the question whether the 30-day time period for filing a PESHA discrimination complaint with the Commissioner of Labor pursuant to Labor Law § 27-a (10) (b) is waivable by the Commissioner. The courts below dismissed the action as time-barred on the ground that the Transport Workers’ Union, Local 100, filed the complaint of discrimination with the Commissioner 63 days after the workers were suspended.

Under PESHA, workers who believe they have been subjected to discrimination for protesting unsafe working conditions "may, within thirty days after such violation occurs, file a complaint with the commissioner alleging such discrimination” (Labor Law § 27-a [10] [b]). The Commissioner must accept for such investigation "as he deems appropriate” all such timely filed complaints (id.). As to late filings, however, it is the Commissioner’s position that the 30-day period is waivable by him, "when circumstances justify it,” in order to preserve and further the remedial purposes of PESHA. The Commissioner asserts that his interpretation of the 30-day time period is consistent with OSHA and its implementing regulations.

In language virtually identical to PESHA, OSHA provides that private sector employees who have been discriminated against have 30 days within which to file a complaint (29 USC § 660 [c] [2]). The Secretary of Labor, unlike the Commissioner, has promulgated regulations implementing OSHA. These regulations, as they pertain to the issue at bar, provide:

"(2) A major purpose of the 30-day period in this provision is to allow the Secretary to decline to entertain complaints which have become stale. Accordingly, complaints not filed within 30 days of an alleged violation will ordinarily be presumed to be untimely. (3) However, there may be circumstances which would justify tolling of the 30-day period on recognized equitable principles or because of strongly extenuating circumstances, e.g., where the employer has concealed, or misled the employee regarding the grounds for discharge or other adverse action; or where the discrimination is in the nature of a continuing violation. The pendency of grievance-arbitration proceedings or filing with another agency, among others, are circumstances which do not justify tolling the 30-day period. In the absence of circumstances justifying a tolling of the 30-day period, untimely complaints will not be processed” (29 CFR 1977.15 [d] [1][3]).

The Commissioner’s position that the 30-day period is intended for his benefit is thus supported by OSHA’s implementing regulations, which permit tolling of the time period based on "recognized equitable principles” or "extenuating circumstances.” However, Federal courts have interpreted the 30-day language as a Statute of Limitations which is subject to equitable tolling principles (see, e.g., Donovan v Hahner, Foreman & Harness, 736 F2d 1421, 1423-1424 [10th Cir]; Donovan v Peter Zimmer Am., 557 F Supp 642, 650).

The Commissioner’s authority as it relates to the 30-day filing requirement in PESHA is not restricted by Federal regulations or case law implementing and interpreting OSHA. The statutory scheme differs, as OSHA regulates private sector employers, whereas PESHA applies to State public sector employers. Consequently, the Commissioner may rationally adopt a different interpretation of the 30-day filing requirement as a means of effectuating the remedial purpose of the statute (see, Labor Law § 27-a [4] [b] [ii]). As the Commissioner aptly points out, the 30-day period is extremely short in the context of a statutory scheme where uncounseled laypeople often initiate the investigatory process. Nor is a strict, technical construction of the 30-day filing requirement necessary to protect employers, since they already benefit from CPLR 214 (2)’s three-year Statute of Limitations. In view of the statute’s intent to benefit employees, it would be anomalous to recognize a second, shorter Statute of Limitations favoring employers.

Contrary to respondent’s contention, the Commissioner’s discretion to decide which late filings he will decline to accept for investigation is not unrestrained. Importantly, the Commissioner’s actions remain subject to judicial scrutiny for arbitrary and abusive exercise of discretion. The Commissioner is bound to interpret and administer PESHA’s 30-day filing mechanism in a consistent and predictable manner which will provide guidance to litigants and promote stability in the law (see, Matter of Field Delivery Serv. [Roberts], 66 NY2d 516, 519-520). In addition, the Commissioner can promulgate regulations to insure these objectives.

Respondent argues that the Commissioner is precluded from using grievance-arbitration proceedings under a collective bargaining agreement as a basis for excusing a late filing, relying on the OSHA regulation which excludes the "pendency of grievance-arbitration proceedings” as a circumstance justifying a toll of the 30-day period (see, 29 CFR 1977.15 [d] [3]). This language was added in 1985 to conform the rule to the United States Supreme Court’s decision in Electrical Workers v Robbins & Myers (429 US 229), where it was held that the statutory period for filing a title VII claim with the Equal Employment Opportunity Commission was not tolled during the pendency of grievance-arbitration proceedings under a collective bargaining agreement (see, 50 Fed Reg 32844).

Cases interpreting title VII of the Civil Rights Act of 1964 provide guidance for courts interpreting OSHA provisions since the employment discrimination statutes are analogous (see, Marshall v N.L. Indus., 618 F2d 1220, 1222 [7th Cir]). However, as stated earlier, the Federal precedents are not binding in interpreting a State statute such as PESHA, and we conclude that a sound State basis exists for interpreting PESHA differently from the Supreme Court’s interpretation of title VII’s filing requirements in Robbins & Myers (supra). In Robbins & Myers, the Supreme Court rejected arguments for tolling the title VII filing period during the pendency of grievance-arbitration procedures under the collective bargaining agreement based on " 'congressional emphasis upon the * * * independence of the two remedies’ ” (429 US, at 237). Here, by contrast, no such mutual exclusivity concern is implicated; indeed employee resort to grievance-arbitration proceedings in collective bargaining agreements is favored in this State (see, Matter of Board of Educ. v Ambach, 70 NY2d 501, 509-510). Furthermore, we note that title VII allows 180 days for filing a claim with the Equal Employment Opportunity Commission, whereas PESHA’s unusually short 30-day period weighs in favor of a liberal construction of the time requirement which permits the Commissioner to waive or toll late filings on a case-by-case basis.

Although we conclude that the complainants’ failure to comply with PESHA’s 30-day filing requirement in this case does not operate as a time bar to an action brought by the Commissioner, this action should nonetheless be dismissed because it was commenced after expiration of the three-year Statute of Limitations of CPLR 214 (2).

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

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

In each case: Order affirmed, with costs.


author: Levine, J.

text:
    [657 NE2d 1301, 634 NYS2d 18]
    Frances Consorti, Individually and as Executrix of John Consorti, Deceased, Plaintiff, v Owens-Corning Fiberglas Corp., Defendant.
    Argued September 13, 1995;
    decided October 24, 1995

      POINTS OF COUNSEL

      Siff Rosen, P. C., New York City (William G. Ballaine, Lisa S. Rabinowitz and Phyllis M. Wrann of counsel), for defendant.
    There is no valid claim for loss of consortium when the disease is the latent effect of premarital exposure to a toxic substance. (Anderson v Lilly & Co., 79 NY2d 797; Metauro v Abbott Labs., 146 Misc 2d 537; Matter of Roberts v Coughlin, 165 AD2d 964; Du Bois v Community Hosp., 150 AD2d 893; Mehtani v New York Life Ins. Co., 145 AD2d 90, 74 NY2d 835; Briggs v Butterfield Mem. Hosp., 104 AD2d 626; Rademacher v Torbensen, 257 App Div 91; Seymour v Brookdale Hosp. Med. Ctr., 145 Misc 2d 450; Miller v Davis, 107 Misc 2d 343; Fleishman v Lilly & Co., 62 NY2d 888, 469 US 1192.)

      Levy Phillips & Konigsberg, L. L. P., New York City (Steven J. Phillips, Alani Golanski, Moshe Maimon and Stephenie Lannigan of counsel), for plaintiff.
    Since decedent was not injured at the time of his marriage, plaintiff’s loss of consortium claim is valid. (Anderson v Lilly & Co., 79 NY2d 797; Mehtani v New York Life Ins. Co., 145 AD2d 90, 74 NY2d 835; Rademacher v Torbensen, 257 App Div 91; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Snyder v Town Insulation, 81 NY2d 429; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; Jacobus v Colgate, 217 NY 235; Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 271 NY 531; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 1073, 374 US 808; Martin v Edwards Labs., 60 NY2d 417.)
   OPINION OF THE COURT

Levine, J.

Under settled New York law, because consortium represents each marital partner’s interest in the continuance of the marital relationship as it existed at the inception of the marriage, a loss of consortium cause of action by the spouse of an injured person "does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage” (Anderson v Lilly & Co., 79 NY2d 797, 798). The United States Court of Appeals for the Second Circuit has certified a question to us regarding the application of that principle to a case where a toxic substance was introduced into the injured person’s body before the marriage, but did not bring about the onset of a particular disease until many years after the marital relationship began.

As related in the Second Circuit’s decision (Consorti v Owens-Coming Fiberglas Corp., 45 F3d 48, 49), plaintiff’s decedent, John Consorti, was continuously exposed to asbestos which he inhaled during the course of his employment between 1960 and 1970. He and plaintiff Frances Consorti married in 1976. Mr. Consorti was diagnosed as having plural mesothelioma, an incurable cancer of the lining of the lungs, in 1992. The Consortis commenced suit in the Federal District Court, Southern District of New York, against defendant, the manufacturer of the asbestos. They introduced at the trial, which had been consolidated with several other asbestos exposure cases, essentially uncontested evidence that mesothelioma is caused by the inhalation of asbestos, but that the disease does not develop until 25-30 years after exposure. Defendant conceded that Mr. Consorti did not have mesothelioma when he married. The question certified to us is "whether a cause of action lies for loss of consortium where, prior to the marriage, the plaintiff’s spouse was exposed to, and ingested, a substance that remained in his body and eventually caused illness, but the illness did not occur until after the marriage” (id., at 49). We answer the certified question in the negative.

Plaintiff’s contrary argument is that the injury to her spouse giving rise to her loss of consortium claim was his mesothelioma and that the time when that injury occurred was a factual question, resolved in her favor as happening after the marriage and, therefore, beyond the power of this Court to review. We disagree.

The issue of date of injury in toxic substance exposure cases in the New York courts has most often been presented in the context of the application of the Statute of Limitations. Much the same considerations apply in determining the date of injury for purposes of a loss of consortium claim, and neither party here disputes that the holdings of those cases are the controlling precedents for the disposition of the instant case. Concededly, as noted by the Second Circuit, there is language in our earlier toxic substance exposure decisions which may be read as basing the operative date of injury on " 'when there is some actual deterioration of a plaintiff’s bodily structure’ ” (id., at 50, quoting Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 217, remittitur amended 12 NY2d 1073, cert denied 374 US 808). Nonetheless, the true holdings of these early cases (and the results reached) point to the rejection of a fact-based date of medical injury test. That rejection was made for practical and policy reasons articulated in the developing case law, that is, the need to provide manufacturers, employers and other economic actors who are potential defendants with a degree of certainty or predictability in assessing the risk of liability and to avoid stale claims which often turn on questions of credibility or disputed medical judgments. Therefore, a bright line, readily verifiable rule was adopted in which, as a matter of law, the tortious injury is deemed to have occurred upon the introduction of the toxic substance into the body. Thus, in Schmidt v Merchants Desp. Transp. Co. (270 NY 287, rearg denied 271 NY 531), a case where the claim arose out of plaintiffs inhalation of silicone dust, subsequently resulting in his contracting pneumoconiosis, this Court rejected plaintiffs claim that the injury giving rise to his cause of action occurred "not at the time he inhaled the dust * * * but at the time when the dust, so inhaled, resulted in a disease of the lungs and that date, it is said, can be determined only by medical testimony” (id., at 300 [emphasis supplied]). Instead, the Court in Schmidt held that

”[t]he injury to the plaintiff was complete when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust. For that injury, including all resulting damages the defendant was then liable. The disease of the lungs was a consequence of that injury. Its result might be delayed or, perhaps, even by good fortune averted; nevertheless, the disease resulted naturally, if not inevitably, from a condition created in the plaintiffs body through the defendant’s alleged wrong” (id., at 301 [emphasis supplied]).

In Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212, supra), this Court, albeit not without some reluctance (see, id., at 217-218), adhered to Schmidt in holding, as a matter of law, that the injury to the plaintiff occurred in 1944, when a chemical was injected into his sinuses to make them perceptible in X rays, rather than 13 years later when a consequential cancer of the eye was detected. In Thornton v Roosevelt Hosp. (47 NY2d 780), a differently constituted Court was asked to revisit and overrule the Schmidt doctrine in a case also involving the injection of a dye into the sinuses for X-ray purposes which subsequently caused cancer. The Court was urged to adopt, as one alternative test for the time of occurrence of tortious injury, "the date when, regardless of whether [the plaintiff] then became aware of it, the injury process first started to work on her body” (47 NY2d, at 783, supra [Fuchs-berg, J., dissenting] [emphasis supplied]). Adoption of that criterion would have required reversal for a resolution of the open question of fact as to when the injury process actually started (id. [Fuchsberg, J., dissenting]). Nevertheless, the Court held that "when chemical compounds are injected into a person’s body, the injury occurs upon the drugs introduction” (id., at 781).

Even more to the point for purposes of the instant case, in Matter of Steinhardt v Johns-Manville Corp. (54 NY2d 1008, remittitur amended 55 NY2d 802, appeal dismissed and cert denied 456 US 967), this Court affirmed summary judgment dismissing as time-barred the cause of action for a plaintiffs mesothelioma, caused by earlier inhalation of asbestos, the same etiology on which Mrs. Consorti’s loss of consortium cause of action is based. In doing so, the Court found irrelevant plaintiffs medical proof which is indistinguishable from that relied upon here by the District Court to sustain Mrs. Consorti’s loss of consortium claim: "that the properties of particles of asbestos are such that their inhalation will not necessarily result in the contraction of the disease; * * * that, even if a cancerous tumor later forms, it will not have begun to do so at the time of exposure; that, before such an event will occur, the asbestos may lay dormant for years” (id., at 1013 [Fuchsberg, J., dissenting]). Thus, according to the dissent in Steinhardt summary judgment was precluded because a question of fact was presented as to the date of injury, that is, "when the damaging disease came into existence” (id.). Here, the District Court resolved that same issue of fact in plaintiffs favor, determining on the basis of the medical proof that "Consorti was not injured (i.e., he did not have mesothelioma) prior to his marriage” (In re New York Asbestos Litig., 847 F Supp 1086, 1104). Thus, the District Court’s decision here is in irreconcilable conflict with the result in Matter of Steinhardt.

Nor do our more recent cases offer support for plaintiffs position. Once again, in Fleishman v Lilly & Co. (62 NY2d 888, remittitur amended 63 NY2d 1017, 1018, cert denied 469 US 1192), a majority of this Court refused to depart from the Schmidt doctrine equating injury with exposure to the toxic substance, that is, its introduction into the body, despite the urging of the dissent that "at the very least, a true date of medical-injury should be adopted for the accrual of the causes of action” (62 NY2d, at 892, supra [Cooke, Ch. J., dissenting]). Most recently, in Snyder v Town Insulation (81 NY2d 429), we again expressed our adherence to the rule that the tortious injury is deemed to have taken place upon introduction of the toxic substance into the body. In Snyder, we quoted from our decision and that of the Appellate Division in Matter of Steinhardt v Johns-Manville Corp. (54 NY2d 1008, supra): "[in Steinhardt], we 'reaffirmed] the principle announced in Schmidt and followed in Schwartz’ * * *. That principle had been stated correctly in the decision of the Appellate Division, the order which we affirmed in Steinhardt: ' "The injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues” ’ (78 AD2d 577, quoting Schmidt, and citing Thornton and Schwartz)” (Snyder v Town Insulation, 81 NY2d, at 434-435, supra).

Thus, through succeeding generations of Judges composing this Court, over some 60 years, the Schmidt rule fixing the occurrence of tortious injury as the date when the toxic substance invades or is introduced into the body, has been reconsidered and reaffirmed, despite importunings that adoption of a medical date-of-injury standard would achieve more just results. Nothing has been presented here to warrant departure from Schmidt and the resultant destabilizing of what is now a settled, certain principle of New York tort law. It follows that, as a matter of law, Mr. Consorti’s tortious injury occurred when he was exposed to and inhaled asbestos during the 1960s, before his marriage, and that Mrs. Consorti has no viable loss of consortium claim.

Accordingly, the certified question should be answered in the negative.

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

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.