author: Fuchsberg, J. Chief Judge Breitel

text:
    The People of the State of New York, Respondent, v Walter Sakow, Appellant.
    Argued May 3, 1978;
    decided June 15, 1978

      POINTS OF COUNSEL

      Copal Mintz for appellant.
    I. Due service of the fire department orders in accordance with the provisions of the applicable statute is indispensable to a prosecution for noncompliance. II. Indeed, there was no service whatsoever on defendant. (Hirsch v Badler, 3 AD2d 921; Loeb v Star & Herald Co., 187 App Div 175; McDonald v Ames Supply Co., 22 NY2d 111; Isaf v Pennsylvania R. R. Co., 32 AD2d 578; Farmingdale Steer-Inn v Steer Inn Realty Corp., 20 AD2d 819; Chernoff v Sunshine Packing Corp. of Pa., 14 AD2d 525.) III. The holding of the court below is unsupportable. Moreover a conviction may not be affirmed on a basis different from the ingredients of the indictment, information or complaint or different from the basis of the trier’s determination. (Farr v Newman, 14 NY2d 183; McDonald v Ames Supply Co., 22 NY2d 111; People v Wakelee, 302 NY 307; People v Weiss, 290 NY 160.) IV. The evidence failed to establish that defendant was a proper person to be served or charged. (People v North Riv. Sugar Refining Co., 121 NY 582; Jenkins v Moyse, 254 NY 319; Walkovszky v Carlton, 18 NY2d 414; Leader v Dinkier Mgt. Corp., 20 NY2d 393; People v Artrol Corp., 67 Misc 2d 1087; People v Goodman, 31 NY2d 262; People v Alrich Rest. Corp., 53 Misc 2d 574; People v Matherson, 64 Misc 2d 680.) V. Three years’ probation and fines of $2000 plus $500, plus other payments, are unauthorized.

      Robert M. Morgenthau, District Attorney, (Brian Rosner and Robert M. Pitler of counsel), for respondent.
    I. Sakow was proved guilty beyond a reasonable doubt. (Walkovszky v Carlton, 18 NY2d 414; Berkey v Third Ave. Ry. Co., 244 NY 84; Mead, Johnson & Co. v Rosen, 16 AD2d 337; Mangan v Terminal Transp. System, 247 App Div 853; Bangor Punta Operation v Bangor & Aroostook R. R. Co., 417 US 703; Anderson v Abbott, 321 US 349; Bartle v Home Owners Coop., 309 NY 103; DeWitt Truck Brokers v Flemming Fruit Co., 540 F2d 681; Halsted v Globe Ind. Co., 258 NY 176.) II. Sakow was tried and convicted of the crimes charged in the accusatory instrument. (People v Wakelee, 302 NY 307; People v Weiss, 290 NY 160; United States v Garguilo, 554 F2d 59.) III. Sakow received a legal sentence.
   OPINION OF THE COURT

Fuchsberg, J.

After a nonjury trial in the Criminal Court of the City of New York, appellant Walter Sakow was convicted on two counts of violation of the fire code, section 488-1.0 of the Administrative Code of that city, in that he willfully neglected and refused to comply with violation orders issued by the fire department directing the correction of hazards in the twin buildings located at 154-160 East 91st Street in Manhattan. The judgment has been upheld by the Appellate Term, First Department.

On the present appeal, aside from questions he raises about the propriety of the sentence, his argument revolves about two assertions: (1) that he could not be held criminally liable because title to the buildings was not held in his name but in that of corporations of which he was merely a stockholder and (2) that delivery of the violation orders had not been effected in a manner consistent with the requirement of the Administrative Code. On the ensuing analysis, we find these contentions without merit.

At the outset, we note that the existence of the violations covered by the fire department orders appears to have been incontestable. The largely unoccupied buildings had been the scene of at least a dozen fires, in one of which two fatalities had occurred. Their dilapidated and dangerous condition clearly posed a risk to public safety. Nevertheless, despite the violation orders, and in the face of a plea of guilty accepted on an earlier charge in which a corporation was permitted to be substituted for Sakow as the pleading defendant, the conditions had remained uncorrected.

It is also scarcely open to serious dispute that, in the context of this prosecution, the trial court could conclude, as it did, that Sakow was the owner of the property on May 29, 1975, when the violation orders were issued, and on December 26, 1975 and January 10, 1976, when further inspection by the fire department indicated that they had been ignored. During the trial, at which he did not take the stand, there was adequate proof from which it could be inferred that, during the years 1972 through 1975, he was the active manager and dominant controlling force in a group of corporations among whom title to the buildings was shuffled — "Wama Property, Inc.”, "Mawash Realty Corp.”, "Justin Property, Inc.”, and "Lescal Realty Corp.” In each he was also principal and, at times, sole shareholder. Whenever Sakow acted for the corporations, he did so in the absence of minutes and without a meeting of the board of directors; for three corporations, minute books and stock certificates had not even been issued at the time of formation. Moreover, the court had before it both an agreement dated February 13, 1975, by the terms of which the "joint venturer”, with whom the appellant previously had shared his corporate stock interest in the buildings, transferred his holdings to Sakow. There was also evidence of such continued ownership by Sakow at the time of trial and nothing to controvert the plain implication that on all the intermediate dates this interest had remained unchanged.

Section 20.25 of the Penal Law provides that "[a] person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf.” It follows that the corporate barriers on which the appellant relies need not have been accepted as an effective screen behind which Sakow could succeed in shielding himself from culpability for omission to take safety precautions necessary for the welfare of the buildings’ remaining residents and visitors, the occupants of neighboring structures, jeopardized firefighters and others within the range of danger (see People v Dean, 48 AD2d 223; People v Alrich Rest. Corp., 53 Misc 2d 574; cf. People v Trapp, 20 NY2d 613; People v Knapp, 206 NY 373).

It goes without saying that a web of obscurity woven by the interplay of a number of corporations is no more impervious to penetration by the law than is a facade-like single corporation. For, under a statute enforcing the State’s police power to protect life and property, the concern is with substance not form. And, since the essence of the offense here charged was the appellant’s failure to correct hazards after being ordered to do so by the fire department, his culpability was not dependent on affirmative conduct (see Penal Law, § 15.00, subd 4).

The alternate prop on which appellant posits his prayer that his conviction be overturned is his argument that unless the delivery of the violation orders was made in conformity with the requirements of section 491al-2.0 of the code, no conviction could result from his failure to eradicate the conditions they described. The pertinent portions of this section provide that "[ojrders of the department * * * shall be addressed to the owner or owners, lessees or occupants of the building * * * affected thereby. It shall be unnecessary to designate such owner or owners, lessees or occupants, by name * * * but the premises shall be designated in the address, so that the same may be readily identified. Service of any such order may be made by delivery of a copy thereof to the owner or any one of several owners, to a lessee or any one of several lessees, or to any person of suitable age and discretion in charge or apparently in charge of the premises, or if no person be found in charge of the premises then by affixing a copy of such order prominently upon the premises” (emphasis added).

Appellant insists that section 491al-2.0 constitutes a service of process statute whose terms must be strictly complied with before a criminal prosecution may be commenced. We do not so read it. It is obvious that the purpose of the provision for issuing violation orders is to effect prompt prevention of conflagrations which may be precipitated by delay in the removal of the known hazards rather than to lay a foundation for criminal prosecution. This may be readily inferred from the code’s concern for the specification of the address rather than the identity of the individuals involved, its inclusion of service upon "any person * * * apparently in charge of the premises” and its provision, as one of the alternative forms of service, for the affixing of a copy to the building. Indeed, as the word "may” indicates, the enumerated forms of service are not necessarily exclusive. Its options for service on those whose relationship to the property, though not an ownership interest, is likely to cause them to act swiftly to ameliorate the condition is not lost on us. To read its language as though validity of service under it is dependent on the minutiae of the listed forms of notice runs counter to its intendment. In short, section 491al-2.0 is to be viewed as a permissive notice section from the service of which other than criminal consequences could flow, such as, for example, direct action by the Fire Commissioner to remove the hazards (§ 491a2-1.0). It is not a condition precedent to prosecution.

Needless to say, the notice could help to establish a defendant’s actual knowledge of the violations of which it complains and whose elimination it seeks. Once brought to his personal attention, it tends to establish the willfulness of a defendant’s conduct. On that subject, the facts relating to the service of the violation orders involved in this case are most instructive.

On May 29, 1975, Edwin Frederick, an attorney, was in the Manhattan Criminal Courts Building representing Sakow and some of the corporations in a related case involving fire violations in the same buildings. Sakow was not present. At that time Frederick had a discussion with Captain Richard Travis, who commanded the fire company responsible for the area where the property was located. The record indicates that, during this discussion, Frederick stated that Sakow wished to clear up the fire department’s complaints, but that he did not have a current list of the violations. Travis thereupon had one of his subordinates compile such a list; these were embodied in the three violation orders on which the present prosecution was predicated.

As permitted by section 491al-2.0, the front of the violation order forms named "Mawash” as "Owner” of the property; on their backs were listed, as "Name of person who received this order”. "Mr. Edwin Frederick for Walter Sakow”. "Owner/ Agent/ Occupant’ ’. It is conceded that Frederick did not delay in reading the orders to Sakow over the telephone. Thus, while the code’s notice provision is largely one allowing for constructive notice, in this case in fact there was actual notice.

For that matter, Frederick’s role did not have to be regarded as simply that of an attorney at law representing a client. Among other things, he had organized the corporations, had been designated as the person (and his office as the place) to whom, service of process on the corporations was to be sent by the New York Secretary of State, had at Sakow’s instance handled the business transactions involved in securing financing for the buildings and had played an active part in shifting the title from corporation to corporation. Where, as here, it was difficult to ascertain who, if anyone, had been put in charge of the buildings, and where efforts to serve Sakow as owner at his listed place of business had been unavailing, in the spirit of the code provision it could be held that Frederick was the person other than the appellant himself most closely approximating one "apparently in charge of the premises”. Though his self-description as one authorized to receive the notice and relay it to Sakow did not constitute proof of that authorization, the fact that he made that representation and that he actually did report it to Sakow forthwith would be further proof consistent with being "apparently in charge” (cf. duPont, Glore Forgan & Co. v Chen, 41 NY2d 794). The code itself contemplates exactly such a communication, going so far as to provide that, if such report is not rendered, the one served is liable to indemnify the owner for the consequences (§ 491al-3.0).

This is not to say that criminal liability is to be imposed on a landlord simply because violation orders have come to his attention. Such liability can, under these sections, only fall on one "who shall wilfully, violate, or neglect, or refuse to comply” (Administrative Code, § 488-1.0). In the present case the facts with regard to the service of the violation orders were relevant to willfulness because at trial these constituted proof on which prior knowledge in Sakow could be grounded. However, since their existence was not a condition precedent to the successful prosecution of the appellant, we are not called upon to decide whether the fashion in which the orders here were served through Frederick was within the scope of the code provisions. Nor is it necessary for us to say whether the Trial Judge’s conclusion that Frederick was actually Sakow’s agent was borne out by the record; for the reasons already indicated, such a finding was unnecessary to the court’s decision.

Finally, having determined that there was a sound legal and factual basis for the conviction, some comments on the sentence are in order. On each count, the court imposed three years’ probation, conditioned on payment of a $1,000 fine and a $250 penalty, correction of the violations and resolution of the appellant’s outstanding traffic summonses. The challenge to these sanctions is based in the main on reiteration of the already rejected argument that “wilfulness” was not established and the sentence was, therefore, illegal. The answer is to be found in the statutes themselves. The Administrative Code denominates the offenses in this case misdemeanors, but it does not specify “the classification thereof or * * * the sentence therefor”. In these circumstances, each is "deemed a Class A misdemeanor” (Penal Law, § 55.10, subd 2, par [b]). One convicted of a class A misdemeanor may be sentenced to three years’ probation and fined $1,000 (Penal Law, § 65.00, subd 3, par [b]; § 80.05). In addition, section 488-1.0 of the Administrative Code authorizes the imposition of a $250 penalty each time a person “knowingly” fails to obey a fire department order. The sentences therefore are within the compass of the law.

For all these reasons, the order of the Appellate Term should be affirmed.

Chief Judge Breitel

(dissenting). There is no disagreement in the court with the issues discussed in the majority opinion other than with the threshold issue: whether the prescribed manner of serving a violation order of the New York City Fire Commissioner is indispensable to conviction for the misdemeanor of willful refusal to comply with the order (Administrative Code of City of New York, § 488-1.0). Assuming service as prescribed is required, also at issue is whether defendant’s lawyer was his agent for accepting service of the order.

The prescribed manner of service of the order is indispensable, and there was insufficient proof to establish that defendant’s lawyer was his agent for accepting service. I therefore dissent and vote for reversal and dismissal of the complaints.

It is not willful failure to correct fire hazards that amounts to a misdemeanor under the Administrative Code. The conduct penalized is willful noncompliance with a fire department violation order. Unless proper service of the order is established, actual notice notwithstanding, it cannot be said that defendant committed the offense.

Defendant landlord, evidently in the business of rebuilding and rehabilitating run-down tenements, appeals from a unanimous affirmance by Appellate Term of his conviction, after a nonjury trial in the Criminal Court of the City of New York, of willful noncompliance with orders of the Fire Commissioner (Administrative Code, § 488-1.0).

The fire department violation orders, issued after a number of inspections in early 1975, direct defendant to correct specified hazards existing in twin multistory apartment buildings located on the upper east side of Manhattan. Defendant, for all practical purposes, became sole operator of the buildings in February, 1975, at which point title was in Mawash Realty, one of a number of close corporations in which defendant had an interest. By the end of 1975 at least a dozen fires in the buildings were reported, and by 1976 only three of 120 apartments were still occupied.

Defendant was ordered, among other things, to remove accumulations of inflammable rubbish from all floors and the cellar, to maintain the cellar floors clean of waste oils, and to provide covered receptacles for rubbish. It is not disputed that the orders, for the most part, went unheeded.

Service of the orders was not made on defendant personally or by the alternative substituted service authorized by the Administrative Code (§ 491al-2.0). Instead, on May 29, 1975, the papers were given to defendant’s lawyer, Frederick. Frederick, together with three members of the fire department, was in court that day in relation to other charges against defendant, not involved on this appeal, stemming from noncompliance with still other orders to correct violations in the Manhattan twin buildings.

Frederick assertedly told Captain Travis of the fire department that defendant wished to comply with the outstanding violation orders, but that he did not have a list of the violations. According to Travis, Frederick asked for duplicates, stating, in response to Travis, that he was authorized to accfept the orders on his client’s behalf. Frederick, on the other hand, denies having claimed authorization to accept the orders for defendant Sakow. While Travis’ men went outside to obtain a violation order book, Frederick complained to Travis about the prohibitive cost of making the repairs and Sakow’s unsuccessful efforts to evict the few remaining tenants. Upon return of the firemen, copies of the existing violation orders were made, at the bottom of each "Mr. Edwin Frederick for Walter Sakow” was written, and the orders were handed to Frederick.

Frederick testified that either later that day or the following he read the violations to Sakow over the telephone.

By June, 1975 title to the twin buildings had been transferred from Mawash to Justin Properties and Lescal Realty, corporations formed by Frederick at defendant’s request and in which defendant was a shareholder. The violations, as noted however, went uncorrected. Finally, in two complaints sworn to in early 1976, Sakow was charged, under section 488-1-.0 of the Administrative Code, with willful failure to comply with the orders given to Frederick the previous May. The complaints were based on inspection of the buildings in December, 1975 and January, 1976.

The complaints were consolidated for trial together with a third later dismissed with the prosecutor’s consent. Defendant waived a jury trial and did not testify. Following conviction, he was fined and sentenced to three years’ probation. Except for the requirement that the fire hazards be corrected, a requirement stayed pending this appeal, the conditions of the probation apparently have been satisfied.

To ensure compliance with the laws the fire department is charged with enforcing, the Administrative Code authorizes the issuance of orders directing building owners or occupants to correct violations (§ 491al-1.0). Directly following the code section authorizing issuance of violation orders is a section captioned "Service of orders”: "Service of any such order may be made by delivery of a copy thereof to the owner or any one of several owners, to a lessee or any one of several lessees, or to any person of suitable age and discretion in charge or apparently in charge of the premises, or if no person be found in charge of the premises then by affixing a copy of such order prominently upon the premises.” (§ 491al-2.0.)

Failure to comply with violation orders may result not only in civil fines and penalties, but in criminal liability as well (Administrative Code, § 488-1.0). Thus, "[a]ny person who shall wilfully violate, or neglect, or refuse to comply with any provision or requirement of this chapter or any regulation, order or special direction duly made thereunder, shall also be guilty of a misdemeanor” (§ 488-1.0).

The violation orders were not delivered to Sakow personally. They were not delivered to one of the remaining tenants. There is no proof that Frederick was responsible for operation of the buildings; he was not found on the premises; and hence by no stretch of the statutory language in context can he be treated as "apparently in charge of the premises”. Most important, no finding below was made or can support the view that Frederick was "apparently in charge”. Nor were the violation orders affixed to the twin buildings. It is argued that the orders may serve as a predicate for a misdemeanor conviction nonetheless, for it was proved that Sakow had actual notice of the outstanding violations.

True, Frederick admitted reading the list of violations to Sakow shortly after he received them from Captain Travis. But, especially in treating with a penal sanction, the fact of actual notice should not be substituted for the prescribed manner of serving the underlying violation order. The service provision in the Administrative Code was, undoubtedly, designed to ensure actual notice as a prerequisite to criminal culpability. It does not follow, however, that proof of actual notice may replace the required service (cf. McDonald v Ames Supply Co., 22 NY2d 111, 114-115).

Nowhere in the Administrative Code does it state that actual notice of the order may replace proper service. Actual notice may be difficult to prove. The proof offered to establish actual notice may not be reliable. In the instant case it is the testimony of Frederick, the unofficial communicator of the order, not that of defendant himself, upon which the People rely to prove notice. To avoid uncertainty and unreliability, and to encourage careful practice, the code sets forth how service shall be made. Willful noncompliance with an order, therefore, is not the whole of the crime; it must be proved, beyond a reasonable doubt, that the order and the notice it contains was one properly served.

The majority concedes that criminal liability is not "to be imposed on a landlord simply because violation orders have come to his attention” (p 138). The statement is nullified, however, if actual notice may supplant the statutory service requirements.

It is significant, too, that the service provisions at issue have been on the statute books for over 40 years. They were enacted as part of the 1937 restatement and codification of the Administrative Code, and have remained unaltered since (see L 1937, ch 929; see, generally, 1936 Report of the New York City Charter Revision Commission, ch 19). Yet, no case has been discovered diluting the mandated service provisions with the less stringent actual notice substitute now sanctioned by the majority.

Of course, if there is a fire hazard in violation of the Administrative Code, the imposition of civil penalties is appropriate. Civil penalties, however, are not at issue in this case. Involved instead is a criminal sanction, and, it bears repeating, unless it is proved beyond a reasonable doubt that defendant’s willful noncompliance was with an order properly served, he may not stand convicted of the crime.

Nor does the record, contrary to the Trial Judge’s conclusion, sustain the People’s assertion that Frederick was defendant’s agent for accepting service of the violation orders. Even Frederick’s purported assertion of authority, as testified to by Captain Travis, is to no avail. An agency may not be self-proving (e.g., Taylor v Commercial Bank, 174 NY 181, 191; 2 NY Jur, Agency, § 29). That Frederick was designated to accept service of process for Lescal Realty and Justin Properties, and that as a lawyer he may have acted for defendant in a number of commercial transactions, including some relating to the twin buildings, does not establish a general authorization to accept service of the violation orders for defendant.

In sum, service on Frederick is not equivalent to service on defendant. No proper service having been made, the charges of willful noncompliance cannot stand. The nature of defendant’s business, that of an entrepreneur who profits from the rehabilitation of almost empty decayed buildings, some of them in conditions as dreadful as these twin buildings were, should not impel a court to disregard the traditional distinctions between notice, service of process, and the basis for criminal punishment for willful disobedience of orders requiring affirmative action. The remedy is so easy: correct service of notices and orders upon those who may suffer penal sanctions.

Even if defendant be a malevolent owner of decayed buildings, to deprive him of the due process mandated by statute, or to gloss over or deviate from the statutory requirements applicable to building owners, would not be justified. It appears, however, that this defendant’s activities are not wholly without social benefit. He performs, albeit for his own profit, a useful function in rehabilitating properties neglected by others, a task he cannot undertake until the buildings are vacated by lingering tenants, in this case the occupants of two or three apartments out of 120. Whether slumlord or rehabilitator, an owner most certainly should be prosecuted if in willful noncompliance of violation orders he permits dangerous conditions to continue while even one tenant lawfully occupies an apartment. On the other hand, since defendant must live by the letter of the law, he should not be condemned in disregard of the law. The result in this case would allow just that.

Accordingly, I dissent and vote to reverse the order of the Appellate Term and dismiss the complaints.

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

Order affirmed.

> H CITY OF NEW YORK FIRE DEPARTMENT DIVISION OF FIRE PREVENTION VIOLATION OKBER 15A-160 East 91st Street Manhattan Addréea of 1’remiaee tioro Walter Sakow . Sum.35-017888-3' Ret.Date 1/22/76 A-16 <5/74) No. F02L007 Mawash_ Neme of Owner, Leasee, Occupant, etc. ._AJi____FLD.__ llnom No. or Floor Typ- of Occupancy Account No. ItrmNo. ItrmNo. VIOLATION ORDER FP-1-2 Provide / Refill fire pails of sand/wntcr at Total FP-3-4 Provide / Refill for) recharge approved fire evtinguishers at KP- 7 Provide properly covered fireproof receptacles for inflammable rubbish at FP-11 Provide “No Smoking" signs at Total FP-12 Remove all accumulations of inflammable rubbish from and maintain all parts of premises free from such accumulations at all times {Comply FORTHWITH) FP-13 Reduce height of stock to not less than 18 inches of ceiling or sprinklers at FP-15 Discontinue storage, sale, or use of volatile flammable liquids. FP-17 Discontinue use of open flame at FP-20 Remove empty containers of flammable liquids from premises. FP-21 Maintain floors clean of waste oils. FP-25-26 Provide Exit signs/Red lights over exit signs at Total FP-27 Maintain adequate aisle space not less than 36 inches at FP-28 Remove all obstructions to meuns of egress at FP-30 Remove grease, paint, or other accumulations from hoods or ducts on FP-42 Replace missing or defective hose on standpipe outlet at FP-&6 Remove all obstructions to sprinkler control valve at FP-60 Seal sprinkler control valves “open” with approved seals at SP-12 Arrange (scuttlc/bulkhcad door) to be readily opened from the inside without the use of a key. SP-15, 16.17, &10 Provide that door of (public hall/dumbwaiter/roof bulkhead/rubbish chutc/laundry chute hopper/kitchen/ incinerator chute hopper/garage/garage vcstibule/stairway/storc room/rubbish room/incinerator room/ boiler room/maintenancc room) located at be. self closinp/nlaced in good operating condi lion/maintained closed. SP-19 Maintain adequate light in (public hall way/public stairway) at SP-34 Properly scrape and paint with two coats of paint the (fire escape/exterior screened stairway) on (front/rnar/ side) of building. SP,35 Properly replace all defective portions of the (fire escape,■'exterior screened stairway) at the side of the building. All windows and doors which open upon the course of the (fire escape/cxtcrior screened stairway) are to be repaired and all work showing corrosion is to be scraped and painted with at least two coats of paint. SP-38 Provide that the self-closing (door/wtndow) opening on the course of the (fire escape/exterior screened stairway) on the side of the building on the storv. be (placed in ennd operating condition/ maintained closed). SP-39 Provide that the door serving as reouired means of egress at be. readily openablc from both sides without the use of a key. SP-42 Store (paint/paint drop cloths) in approved storage (area/room/cabinet) at SP-53 Replace (used/damaged/missing) sprinkler head at SP-63 Remove electric current cube taps being used at SP-64 Discontinue use of temporary wiring being used in place of fixed wiring ul SP-80 Properly store (mattresscs/furniture/paints/insecticides) in approved storage (compartment/room) at\ SP-81 Provide temporary protection of unused dumbwaiter shafts by means of nailing doors closed and scaling of unprotected openings on all floors, including cellar, (skylights shall remain) pending compliance with the requirement of the Department of Buildings. 1 FO-2 Provide two (2) round bottom sand nail a os one annroved hand Fire extinguisher suitable for oil Fires to be made available at each boiler or furnace. 2 F0-8 Label remote control or Fuel Oil svstem with sien "REMOTE CONTROL FOR OIL BURNER". If this order has not been complied with, in days of the issuance date (or forthwith for those violations designated “comply FORTHWITht'3’). a summons will be served for violation of Chapter 19 of the Administration Code of the City of This is to certify that I huve made on inspection of said premises and have issued the above order to: Ftte Commissioner Mr. Edwin Frederick For Walter Sakow Fr. Connolly 5/29/75 Name of person who tn rived this urde Importan I: See instructions on reverse side. Owner/A sent/Occupant Inspector Dale For informnlion, inspection or dismissal contact inspection unit; _ ..... Unit Telephone_

      It may be noted that, as distinguished from the violation orders, the present criminal cases were initiated by due service of a summons upon Sakow personally. They were based on accusatory instruments filed against him on January 16, 1976 and February 3, 1976.

      The order itself both provides notice of the violations and orders their correction. A copy of one of the orders involved is annexed as an appendix.


source: Caselaw Access Project

author: Cooke, J.

license: Public Domain

text:
    Tenavision, Inc., Appellant, v Carl H. Neuman, Individually and Doing Business as James Square Nursing Home, et al., Resondents.
    Argued May 5, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      David J. Mandel and Joseph H. Muraskin for appellant.
    I. After repudiation by a buyer of goods, a seller of goods is not required to tender delivery. Since the record here shows repudiation by respondents — and no breach by appellant — it was error for the court below to have granted judgment to respondents. Moreover, the proof of appellant’s ability to perform is ample. (American Broadcasting-Paramount Theatres v American Mfrs. Mut. Ins. Co., 48 Misc 2d 397, 24 AD2d 851, 17 NY2d 849, 385 US 931; Mugler Co. v A. C. Mgt. Corp., 29 AD2d 548; Bahnsen & Co. v Gerst, 235 NY 426.) II. Since defendants had a full opportunity to offer evidence of damages and failed utterly to do so, the remand of the court below for hearing on the issue of damages was erroneous.

      Abraham Hecht and Morris Ehrlich, P. G, for respondents.
    I. The court below was correct in holding there was one agreement. II. Appellant failed to prove it could perform the contract without secondary financing. (Collins v Kingsberry Homes Corp., 243 F Supp 741; Maddaloni Olive Oil Co. v Acquino, 191 App Div 51.) III. The determination of the court below dismissing the complaint was correct. (Geer v New York

      City Ry. Co., 50 Misc 517; Putnam v United States, 162 US 687; MacRae v Chelsea Fibre Mills, 145 App Div 588; Wilkins v Earle, 44 NY 172; Matter of Prentice, 110 Misc 456; Karstens v Karstens, 29 App Div 229; Hanna v Stedman, 230 NY 326; Niehoff-Schultze Grocer Co. v Gross, 205 App Div 67, 237 NY 509.) IV. Appellant’s appeal as to the counterclaim is moot.
   OPINION OF THE COURT

Cooke, J.

By three agreements dated May 13, 1970, plaintiff agreed to lease 140 black and white and four color television sets to James Square Nursing Home, which was referred to in the contracts as a "trade name” for defendant Carl H. Neuman. Although the demised term was for 60 months, the lessee was given an option to purchase the equipment at the expiration of this period for one dollar per set. The agreements were never carried out and this action ensued with both sides claiming breach by the other and seeking damages.

In its complaint, plaintiff alleged four causes of action relating to the agreement. Special Term granted summary judgment to plaintiff on the first, wherein plaintiff sought the reasonable value of its services and for materials furnished to install a remote control wiring system for use of the television sets, and severed it from the other three causes of action. The second is for loss of profits under the agreements and the third and fourth are, respectively, for counsel fees and for recovery on a guarantee of the contracts by defendant Continued Care Facilities, Inc. Defendant Neuman counterclaimed for damages, alleging that plaintiff had breached the contracts.

At the trial without a jury, an officer and director of plaintiff testified that he made numerous telephone calls concerning delievery to the nursing home, which is located in Syracuse, New York, and that he was advised that the sets were not needed. Although the equipment was not shipped to the nursing home, plaintiff’s officer then wrote to an officer of defendant Continued Care Facilities, Inc., regarding the refusal to accept delivery. In the letter, an offer was made by plaintiff to cancel two of the contracts covering approximately 95 televisions, if the agreement calling for delivery of 35 sets was accepted. This offer was not accepted.

A part of the dispute centered around a provision in the agreements which stated: "The Lessor [plaintiff] agrees not to file or cause to be filed a UCC-1 form covering the agreement.” At trial, defendant Neuman testified that, despite this assurance in the contracts, an officer of plaintiff told him that plaintiff could not deliver the television sets at all unless Neuman executed a number of UCC-1 forms which would then be filed as part of plantifFs financing of the arrangement. Plaintiff conceded that there had been a request for the documents for filing, but countered this assertion by attempting to show that although it wanted to finance the transaction, it would have had the ability to ship the goods even though its request was denied. Defendant further asserted that plaintiff failed to make a tender of any type in accordance with the contract, or as required under the Uniform Commercial Code.

Based on the testimony and other evidence, the trial court found that plaintiff had tendered delivery, allowed recovery with respect to 35 of the sets, and dismissed the counterclaim. The Appellate Division unanimously reversed, on the law, concluding that plaintiff had failed to prove at trial that it was able to supply the goods without the secondary financing evidenced by the filing of UCC-1 forms. The court also charged plaintiff with breach of contract and remanded for a hearing to determine the extent of damages on defendant Neuman’s counterclaim.

There should be a reversal. Although it was conceded by plaintiff at trial that it requested UCC-1 forms from defendants, the mere asking for these statements would not constitute a repudiation of the agreements. This request was not complied with and thereafter plaintiff sought to make arrangements to deliver the televisions, but was advised that the ordered sets were no longer needed. An officer of plaintiff testified regarding his numerous offers to deliver the equipment, and it is notable that there was no showing that these offers were conditioned on the signing or filing of any of the forms. Significantly, this testimony was expressly credited by the trial court. Hence, in these circumstances, the Appellate Division erred in its emphasis on whether plantiff could prove that it was able to supply the goods. Regardless of how plaintiff desired to finance the transaction, it unequivocally sought to deliver the sets. Therefore, defendants were not at liberty to refuse the goods simply because requests to prepare these forms had been made and denied.

It is also held that under these circumstances plaintiff was not obligated to make a tender. While ordinarily a tender of the goods is required (see Uniform Commercial Code, §§ 2-301, 2-503), the repudiation of a contract by the buyer eliminates the need for further performance by the seller (see Uniform Commercial Code, § 2-610, subd [c]). Referred to as an anticipatory repudiation, a disavowal of the contract can be determined to have occurred whenever there is an "overt communication of intention” not to perform (see Official Comment 2 to Uniform Commercial Code, § 2-610). However, for these principles to operate, it should be shown that the announcement of an intention not to perform was positive and unequivocal (see White & Summers, Uniform Commercial Code, § 6-2, p 172).

In this case, the repudiation was more than amply demonstrated by the communication to plaintiff by an administrator and a purchasing agent of defendant nursing home that the sets were no longer needed and that delivery would not be accepted. This was shown by testimony, credited by the trial court and virtually unimpeached, of an officer of plaintiff who related that he made numerous telephone calls and forwarded at least one item of correspondence in this regard, but that he received negative answers and sometimes no response at all. In similar circumstances, involving pre-Uniform Commercial Code cases, it was held that a seller was relieved of the obligation to make a tender where the buyer stated that he would not receive or pay for the goods (Windmuller v Pope, 107 NY 674; see, also, Nichols v Scranton Steel Co., 137 NY 471, 485). The same result should obtain here. Therefore, in these circumstances, as a matter of law, defendants may not escape liability by asserting a failure to tender by the seller.

In conclusion, it is noted that the Appellate Division correctly treated the three agreements under consideration as one contract. Accepting this approach would ordinarily suggest that the case be remitted to Supreme Court for assessment of damages on two of the agreements since that court allowed recovery as to only one of three "leases”. However, since plaintiff did not appeal to the Appellate Division from the trial court’s decision to limit damages to those suffered with respect to 35 of the 144 television sets, this court may not grant greater relief to plaintiff on this appeal (see Matter of Segall, 287 NY 52, 60-61; see, also, Cohen and Karger, Powers of the New York Court of Appeals, § 94, pp 404-405).

Accordingly, the order of the Appellate Division, insofar as it dismissed the complaint, should be reversed, the judgment of Supreme Court, New York County, should be reinstated, and the appeal from the order of the Appellate Division, insofar as it remanded for trial of the counterclaim on the issue of damages, although academic in light of this court’s decision, should be dismissed, upon the ground that the order in that respect does not finally determine the .action within the meaning of the Constitution, all with costs to plaintiff in all courts.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order insofar as it dismissed the complaint reversed, judgment of Supreme Court, New York County, reinstated, and the appeal from the order insofar as it remanded for trial of the counterclaim on the issue of damages dismissed, with costs to plaintiff in all courts.

      It should be noted that although the agreements in question are styled "leases”, at trial plaintiff characterized them as "in essence a purchase agreement”. Defendants’ arguments also indicate that they viewed the transaction as a sale covered by article 2 of the Uniform Commercial Code. In any event, based on a reasonable view of the arrangement, in particular that the lessee was given the option to purchase the televisions for one dollar per set at the expiration of the agreement, it is appropriate to treat this dispute as governed by the sales of goods provisions of the Uniform Commercial Code (see Uniform Commercial Code, § 1-201, subd [37]; see, also, 1 Williston, Sales [4th ed], § 6-8, pp 177-179; White & Summers, Uniform Commercial Code, § 22-3, pp 759-765).


author: Cooke, J. Jasen, J.

text:
    Joan Sharrock, Individually and on Behalf of All Others Similarly Situated, Respondent, v Dell Buick-Cadillac, Inc., et al., Appellants. Louis J. Lefkowitz, Attorney-General, Intervener.
    Argued April 26, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      James K. Levin and Daniel G. Levin for appellants.
    The statutory provisions of New York law provide respondent with ample due process. (Blye v Globe-Wernicke Realty Co., 33 NY2d 15; Parks v "Mr. Ford”, 556 F2d 132; Fuentes v Shevin, 407 US 67.)

      Martin A. Schwartz and Alan Steiner for respondent.
    I. Section 200 of the Lien Law violates the due process clause of the Fourteenth Amendment because it authorizes a garage-man to sell a bailed automobile without affording its owner an opportunity for a hearing. (Blye v Globe-Wernicke Realty Co., 33 NY2d 15; Hernandez v European Auto Collision, 487 F2d 378; Sniadach v Family Fin. Corp., 395 US 337; Parks v "Mr. Ford”, 556 F2d 132; Tedeschi v Blackwood, 410 F Supp 34; Ceasar v Kiser, 387 F Supp 645; Cockerel v Caldwell, 378 F Supp 491; Mason v Garris, 360 F Supp 420; Straley v Gassaway Motor Co., 359 F Supp 902.) II. The sale provision of the garageman’s lien law violates the due process clause of section 6 of article I of the New York Constitution. (People v Hobson, 39 NY2d 479; People v Donovan, 13 NY2d 148; People v Witenski, 15 NY2d 392; Michigan v Mosley, 423 US 96; San Antonio Ind. School Dist. v Rodriguez, 411 US 1; Antinore v State of New York, 79 Misc 2d 8, 49 AD2d 6; Matter of Ryan v Hofstra Univ., 67 Misc 2d 651; Dorsey v Stuyvesant Town Corp., 299 NY 512; People v Bush, 39 NY2d 529; Food Employees v Logan Plaza, 391 US 308.)

      Louis J. Lefkowitz, Attorney-General (A. Seth Greenwald, Samuel A. Hirshowitz and John Farrar of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. Enforcement of a garageman’s lien pursuant to sections 200-202 and 204 of the Lien Law, analogous to the remedy of sale without judicial process available to a pledgee of personal property, does not encompass "State action” as the lienor did not seize the property but came into possession of it lawfully by the choice and consent of the owner, and the property was auctioned by an auctioneer who is not a State officer. (Blye v Globe-Wernicke Realty Co., 33 NY2d 15; Melara v Kennedy, 541 F2d 802; IDS Leasing Corp. v Hansa Jet Corp., 51 AD2d 536; Matter of Kiamie, 309 NY 325; Toplitz v Bauer, 161 NY 325; Dininny v Reavis, 100 Misc 316, 178 App Div 922; First Trust & Deposit Co. v Potter, 155 Misc 106; Gandy v Collins, 160 App Div 525, 214 NY 293; Jones v National Chautauqua County Bank, 272 App Div 521.) II. The statutory provisions coupled with the accessibility of counsel and of legal remedies to respondent, provide her with ample due process. (Mathews v Eldridge, 424 US 319; Arnett v Kennedy, 416 US 134; Melara v Kennedy, 541 F2d 802; Matter of Liamie, 309 NY 325; Dininny v Reavis, 100 Misc 316, 178 App Div 922; Jacobs v National Bank of Far Rockaway, 208 Misc 923; Smith v O'Brien, 46 Misc 325; Magro v Lentini Bros. Moving & Stor. Co., 338 F Supp 464, 460 F2d 1064, 406 US 961; Jackson v

      Metropolitan Edison Co., 419 US 345; Jackson v Statler Foundation, 420 US 927.)
   OPINION OF THE COURT

Cooke, J.

Challenged here as violative of the due process clauses of the State Constitution (NY Const, art I, § 6) and the Fourteenth Amendment of the Federal Constitution is the statutory authorization afforded a garageman to foreclose his possessory statutory lien for repair and storage charges (Lien Law, § 184), by means of a public sale of the vehicle in his possession. We hold that sections 200, 201, 202 and 204 of the Lien Law, insofar as they empower a garageman to conduct an ex parte sale of a bailed automobile, fail to comport with traditional notions of procedural due process embodied in the State Constitution, as they deprive the owner of the vehicle of a significant property interest without providing any opportunity to be heard.

On October 12, 1975, plaintiff’s husband took her 1970 Cadillac to Dell Buick-Cadillac, Inc. (Dell), for installation of a replacement engine he had purchased elsewhere. The husband signed a work authorization wherein it was agreed that Dell was to remove the defective engine and install its replacement for the sum of $225. The affidavits of plaintiff and her husband recite that the work authorization form contained no provisions with respect to storage charges which were subsequently unilaterally imposed by Dell. Approximately one week later, plaintiff’s husband offered to pay the $225 to Dell, but was advised by its service manager to withhold payment until the engine was installed.

Unfortunately, the replacement engine proved to be defective and had to be removed. Delivery of a replacement engine was then arranged. When the new replacement engine arrived, Dell informed plaintiff’s husband that it would not be installed until Dell was paid the $225 due for the installation of the original defective engine. Although he agreed to pay this sum, plaintiff’s husband did not have that amount of money with him at the time and soon thereafter was hospitalized, rendering him incapable of continuing his business dealings with Dell.

On January 14, 1976 plaintiff received a "Notice of Lien and Sale” by certified mail, informing her that pursuant to section 184 of the Lien Law Dell had imposed a possessory lien against the Cadillac in the amount of $304.95. That notice further advised that if plaintiff did not tender this sum within 30 days, the automobile would be sold at public auction on March 15, 1976 (see Lien Law, § 200). Plaintiff was subsequently informed by one of the auctioneers listed on the notice of sale that, her belief to the contrary notwithstanding, included in the lien was the sum of $79.95, representing storage charges. However, the auctioneer did agree to contact Dell in order to ascertain whether they would "take off” the storage charge from the amount due.

Several days later, the auctioneer informed plaintiff that Dell refused to waive its storage charge and that the amount now due had been increased to $545. He also advised her that since the book value of the car was appreciably greater than $545, it would be to plaintiff’s advantage to pay the charges since Dell "had her over a barrel” because her husband had taken the car there for repair. On the day of the auction, March 15, 1976, Dell again modified its claim and informed plaintiff that the amount due had been reduced to $502. Later that day, plaintiff’s 1970 Cadillac, having an established resale value of between $1,200 and $1,400, was sold to Dell for the sum of $502.

Plaintiff then commenced the instant action for declaratory and injunctive relief, as well as damages, claiming that the sale provisions of the Lien Law are violative of her due process rights as they authorize public sale of her automobile without affording the opportunity for a hearing. Plaintiff’s motion for summary judgment was denied by Special Term on the ground that the affidavits submitted presented triable issues of fact. The Appellate Division modified, granting judgment to plaintiff declaring sections 200, 201, 202 and 204 of the Lien Law unconstitutional and granted leave to appeal to this court, certifying the following question for our review: "Was the order of this court, dated March 28, 1977, properly made?” We affirm, and answer the certified question in the affirmative.

The threshold question in any judicial inquiry into conduct claimed to be violative of the due process clause of the Fourteenth Amendment is whether the State has in some fashion involved itself in what, in another setting, would otherwise be deemed private activity (see US Code, tit 42, § 1983; Jones v Mayer Co., 392 US 409, 422-424). That much is made plain by the express terms of the amendment which specifies that "nor shall any State deprive any person of life, liberty, or property without due process of law” (emphasis added). Purely private conduct, however egregious or unreasonable, does not rise to the level of constitutional significance absent a significant nexus between the State and the actors or the conduct (see Civil Rights Cases, 109 US 3, 11). This nexus has been denominated "State action” and is an essential requisite to any action grounded on violation of equal protection of the laws or a deprivation of due process of law. Further, it is settled that where the impetus for the allegedly unconstitutional conduct is private, the State must have "significantly involved itself’ in order for that action to fall within the ambit of the Fourteenth Amendment (Reitman v Mulkey, 387 US 369, 380).

Despite its outward simplicity as a concept, State action is in fact an elusive principle, one which cannot be easily discerned by resort to ritualistic incantations or precise formalisms (see Burton v Wilmington Parking Auth., 365 US 715, 722). Instead, a number of factors must be considered in determining whether a State is significantly involved in statutorily authorized private conduct. These factors include: the source of authority for the private action; whether the State is so entwined with the regulation of the private conduct as to constitute State activity; whether there is meaningful State participation in the activity; and whether there has been a delegation of what has traditionally been a State function to a private person (Melara v Kennedy, 541 F2d 802, 805). As the test is not simply State involvement, but rather significant State involvement, satisfaction of one of these criteria may not necessarily be determinative to a finding of State action.

We need not address plaintiff’s contention that the actions taken by Dell are attributable to the State of New York for purposes of the due process clause of the Fourteenth Amendment. Recently, in Flagg Bros. v Brooks (436 US 149), the Supreme Court rejected the argument that a private sale of property subject to a warehouseman’s possessory lien pursuant to section 7-210 of the Uniform Commercial Code constitutes State action. The similarities between section 7-210 and the statutes at issue here might preclude any contrary finding by this court.

But the mere fact that an activity might not constitute State action for purposes of the Federal Constitution does not perforce necessitate that the same conclusion be reached when that conduct is claimed to be violative of the State Constitution (see Ives v South Buffalo Ry. Co., 201 NY 271, 317; Oregon v Hass, 420 US 714, 719; Sibron v New York, 392 US 40, 60-61; Minnesota v National Tea Co., 309 US 551, 556-557). Indeed, on innumerable occasions this court has given our State Constitution an independent construction, affording the rights and liberties of the citizens of this State even more protection than may be secured under the United States Constitution (see, e.g., People v Isaacson, 44 NY2d 511; People ex rel. Walsh v Vincent, 40 NY2d 1049; People v Hobson, 39 NY2d 479, 483-484; People v Donovan, 13 NY2d 148, 151; Ives v South Buffalo Ry. Co., 201 NY 271, 317, supra). This independent construction finds its genesis specifically in the unique language of the due process clause of the New York Constitution as well as the long history of due process protections afforded the citizens of this State and, more generally, in fundamental principles of federalism (see Johnson v Louisiana, 406 US 356, 376; New State Ice Co. v Liebmann, 285 US 262, 311 [Brandeis, J., dissenting]).

In contrast to the due process clause of the Fourteenth Amendment, which is phrased in terms of State deprivation of life, liberty or property, section 6 of article I of the New York Constitution guarantees that "[n]o person shall be deprived of life, liberty or property without due process of law.” Conspicuously absent from the State Constitution is any language requiring State action before an individual may find refuge in its protections. That is not to say, of course, that the due process clause of the State Constitution eliminates the necessity of any State involvement in the objected to activity (see Stuart v Palmer, 74 NY 183, 188). Rather, the absence of any express State action language simply provides a basis to apply a more flexible State involvement requirement than is currently being imposed by the Supreme Court with respect to the Federal provision.

The historical differences between the Federal and State due process clauses make clear that they were adopted to combat entirely different evils (see Schwartz, The Bill of Rights: A Documentary History, pp 161, 165, 387, 855-856). Prior to the Civil War, the Federal Constitution had as its major concern governmental structures and relationships. Indeed, prior to the enactment of the Fourteenth Amendment, the Bill of Rights delimited only the power of the National Government, imposing few restrictions on State authority and offering virtually no protections of individual liberties (see Barron v Mayor & City Council of Baltimore, 7 Pet [32 US] 243). The Fourteenth Amendment was a watershed — an attempt to extend and catalogue a series of national privileges and immunities, thereby furnishing minimum standards designed to guarantee the individual protection against the potential abuses of a monolithic government, whether that government be national, State or local (see Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last”?, 1972 Wash U LQ 405; Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489, 501). In contrast, State Constitutions in general, and the New York Constitution in particular, have long safeguarded any threat to individual liberties, irrespective of from what quarter that peril arose. Thus, as early as 1843, Justice Bronson, in speaking of the due process clause of our State Constitution, noted: "The meaning of the section then seems to be, that no member of the state shall be disfranchised, or deprived of any of his rights and privileges, unless the matter be adjudged against him upon trial and according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him” (Taylor v Porter, 4 Hill 140, 146; see, also, Wynehamer v People, 13 NY 378, 394 [1856]).

Examination of the indicies of State participation in nonjudicial foreclosure pursuant to the provisions of the Lien Law at issue here compels the conclusion that New York has so entwined itself into the debtor-creditor relationship as to constitute sufficient and meaningful State participation which triggers the protections afforded by our Constitution.

The garageman’s lien is a statutory declaration of the common-law artisan’s lien. At common law, a workman who by his labor enhanced the value of a chattel, obtained a lien upon it for the reasonable value of the work performed. That lien endowed the artisan with the exclusive right to possession of the repaired article until his charges were satisfied (1 Jones, Law of Liens, §§ 731, 749; Brown, Personal Property [2d], § 107, pp 505-511). The possessory nature of the garage-man’s lien is not in issue here, and in any event, does not constitute State action (see IDS Leasing Corp. v Hansa Jet Corp., 51 AD2d 536, affg 82 Misc 2d 741). For State action purposes, there is a fundamental distinction between a statute which, in regulating previously lawful conduct, does nothing more than merely acknowledge its lawfulness (Adams v Southern Cal. First Nat. Bank, 492 F2d 324, 333, n 24, cert den 419 US 1006), and one which authorizes otherwise impermissible or unconstitutional conduct (Tedeschi v Blackwood, 410 F Supp 34, 41-42 [three-Judge court]).

As noted, common law afforded the garageman only the right to possession; it was the State which authorized enforcement of the lien by means of ex parte sale of the vehicle without first affording its owner an opportunity to be heard (see L 1909, ch 38, as amd). Thus, New York has done more than simply furnish its statutory imprimatur to purely private action. Rather, it has entwined itself into the debtor-creditor relationship arising out of otherwise regular consumer transactions. The enactment of substantive provisions of law which authorize the creditor to bypass the courts to carry out the foreclosure sale encourages him to adopt this procedure rather than to rely on more cumbersome methods which might comport with constitutional due process guarantees. Indeed, not only does the State encourage adoption of this patently unfair procedure, it insulates the garageman from civil or criminal liability arising out of the sale and requires one of its agencies, the Department of Motor Vehicles, to recognize and record the transfer of title (see Vehicle and Traffic Law, § 401), thus enabling the garageman to transfer title to a vehicle he would not otherwise be deemed to own (Adams v Department of Motor Vehicles, 11 Cal 3d 146, 150-151; cf. Caesar v Kiser, 387 F Supp 645; Barber v Rader, 350 F Supp 183; Dielen v Levine, 344 F Supp 823).

Even more fundamentally, the underlying purpose of the sale provisions of the Lien Law — that of conflict resolution— has always been deemed one of the essential attributes of sovereignty. Absent consent of the debtor, the power to fashion the means to order legally binding surrenders of property has always been exclusively vested in the State. Implementation of dispute settlement, irrespective of the strength of the competing interests of the parties, is the function of the judiciary, and is not dependent "on custom or the will of strategically placed individuals, but on the common-law model” (Boddie v Connecticut, 401 US 371, 375). But by permitting the possessory lienor to take those steps necessary to foreclose his lien in a nonjudicial setting where the power of sale is premised on possession alone, the State has permitted the garageman to arrogate to himself the exclusive power of the sovereign to resolve disputes. However strong the interest of the garageman in the vehicle may be, his power of foreclosure has no vitality until it is sanctioned by the State. It follows, then, that such a person vested by the State with the power to resolve unilaterally an otherwise judicially cognizable controversy, is nothing more than a delegate of an exclusively governmental function (cf. North Ga. Finishing v Di-Chem, 419 US 601, supra; Fuentes v Shevin, 407 US 67, 93, supra). For this reason, the debtor must be provided with that measure of due process as would be afforded in a court of law.

Additionally, as we held in Blye v Globe-Wernicke Realty Co. (33 NY2d 15, 20), the execution of a lien, the sale of the property affected thereby and the conclusiveness of the sale, has endowed private individuals with the same authority as has been traditionally vested with the Sheriff. This grant of power to a private individual to perform a public function is attributable to the State in these circumstances (cf. Parks v "Mr. Ford”, 556 F2d 132, 141; Hall v Garson, 430 F2d 430, 439; Ann., 64 ALR3d 814). The instant sale was made under the provisions of the Lien Law, the absence of which would have required Dell to go into court to prove both the validity of its lien and the charges due thereunder. Instead, by permitting the garageman to hold the sale ex parte, "the state has delegated the traditional roles of judge, jury and sheriff to [Dell] without providing for any judicial supervision or other safeguards” (Cox Bakeries of N. D. v Timm Moving & Stor., 554 F2d 356, 358).

Having determined that enforcement of the garage-man’s lien constitutes meaningful State participation inasmuch as New York has delegated to private parties functions traditionally associated with sovereignty, we therefore reach the substantive constitutional question. Fundamental notions of procedural due process require that before the State may deprive a person of a significant property interest in aid of a creditor, that person be given notice and an opportunity to be heard prior to deprivation of that interest (Wynehamer v People, 13 NY 378, 392-393, supra; Stuart v Palmer, 74 NY 183, 191, supra; Memphis Light, Gas & Water Div. v Craft, 436 US 1; Armstrong v Manzo, 380 US 545, 552). Tested by this requirement, the statutes do not pass muster in light of the due process standards articulated in analogous circumstances by the Supreme Court. Sniadach v Family Fin. Corp. (395 US 337, supra) and Fuentes v Shevin (407 US 67, supra) teach that even a temporary deprivation of property is entitled to due process protection. Although the implications of these holdings were left somewhat in doubt after Mitchell v Grant Co. (416 US 600), in North Ga. Finishing v Di-Chem (419 US 601, supra), the Supreme Court made clear that it was the peculiar features of the Louisiana sequestration statutes that insulated them from due process infirmity. Viewed in this context, enforcement of the garageman’s lien is as objectionable as the remedies struck down in Sniadach, Fuentes and North Ga. Finishing because it is executed without even a modicum of judicial intervention or supervision.

Moreover, the statutes challenged here display none of the "saving characteristics” (North Ga. Finishing v Di-Chem, supra, at p 607) of the provisions sustained in Mitchell. Twenty-four days after notice of sale is served, the garageman may proceed with the sale without having even approached a court or consulted the debtor, without filing a bond or affidavit, and without affording the owner a hearing in which he may contest the amount due. Even more objectionable is the fact that the statutes at issue here result in a permanent deprivation of what is today a necessity of life, not a temporary deprivation as would be occasioned by attachment, sequestration or replevin.

While the owner of a vehicle ordinarily understands that a garageman expects payment upon completion of the work, the contested provisions of the Lien Law afford him little redress to the garageman’s retention and ex parte sale if the charges demanded exceed the previous estimate or there is a dispute as to the quality of workmanship. Instead, pursuant to his statutory grant of authority, a garageman may sell any vehicle, no matter how valuable, to satisfy any lien, no matter how small (Parks v "Mr. Ford”, 556 F2d 132, 143, supra). To be sure, it is a reasonable exercise of the State’s police power to give the garageman a security interest in vehicles which he has enhanced in value. However, it is unreasonable and constitutionally impermissible to provide absolutely no safeguards against unauthorized or unnecessary repairs or storage charges which may underlie the whole transaction, especially where an ownership interest hangs in the balance. By permitting a creditor to hold and sell a debtor’s property unless his demands are met, the State empowers the garageman to engage in conduct which is tantamount to blackmail. In these circumstances, it is essential that the debtor be provided a forum to air his defenses.

Notwithstanding these patent inequities, it is urged that the vehicle owner may still enjoin an impending sale (CPLR art 63), maintain an action for a judgment declaring the charges imposed unreasonable (CPLR 3001) or initiate a replevin action to recover the vehicle (CPLR art 71; see Dininny v Reavis, 100 Misc 316, affd 178 App Div 922). However, when viewed from the standpoint of the persons involved this suggestion borders on the ludicrous (cf. Matter of B. T. Prods. v Barr, 44 NY2d 226, 233, n 2). Not only does it ask us to adopt a holding specifically rejected by the Supreme Court (Fuentes v Shevin, 407 US 67, 83, and n 13, supra), it fails to take into account the delays and uncertainties inherent in any judicial proceeding and the fact that one whose automobile is subject to an impending sale is frequently poor, unrepresented by an attorney and unschooled in legal niceties. Moreover, as replevin and injunction are extraordinary remedies, they lack the certainty necessary to insure a hearing prior to permanent deprivation (see Caesar v Kiser, 387 F Supp 645, 649, supra). Even assuming that these procedures could be deemed effective, the creditor’s duty to afford the debtor an opportunity to be heard prior to the deprivation of a significant property interest would not be abrogated. The point is that by requiring a hearing prior to sale there would be assurance that all will have the opportunity to assert their claims.

Nor may the summary sale here be justified on the ground that the initial retention of the vehicle arose out of a voluntary transaction. At most, voluntary delivery of the automobile created a bailor-bailee relationship, which relationship could not divest the bailor of his continuing interest and title, irrespective of whether the bailee has a possessory lien on the bailed chattel (Hernandez v European Auto Collision, 487 F2d 378, 385 [concurring opn]). Since that possessory lien is merely a security interest, the State may not constitutionally permit a garageman to extinguish the owner’s interest without adherence to minimum due process standards. To be rejected also is the assertion that the statutes here may be justified because of the extraordinary circumstances present. The property of a debtor may be summarily seized or sold only in a truly unusual situation and only "to secure an important governmental or general public interest or where the need for prompt action is paramount” (Blye v Globe-Wernicke Realty Co., 33 NY2d 15, 21, supra). But, as the Supreme Court has noted, where "no more than private gain is directly at stake” (Fuentes v Shevin, supra, at p 92), the opportunity to be heard is an indispensable bulwark against an arbitrary, and final, deprivation of property.

It must be concluded, therefore, that the sale provisions of sections 200, 201, 202 and 204 of the Lien Law violate the due process clause of the New York Constitution inasmuch as they fail to provide the owner of a vehicle an opportunity to be heard prior to permanent deprivation of a significant property interest. The garageman’s right to retain his possessory lien is unaffected by this decision, but he may not sell the vehicle to satisfy his claim unless and until a method is devised, consistent with due process, of affording the owner some opportunity to be heard.

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

Jasen, J.

(dissenting). The majority holds today that the private sale on notice to the owner of a vehicle to satisfy a garageman’s lien, as regulated by statute (Lien Law, §§ 200, 201, 202, 204), is violative of the due process clause of the State Constitution. I disagree and would sustain the constitutionality of the challenged statutes on the ground that the statutory scheme does not involve State action and, therefore, may not properly be measured against due process standards applicable only when State action is present.

Confronted by a controlling decision of the United States Supreme Court, the majority declines, as indeed it must, to hold these statutes violative of the due process clause of the Federal Constitution. In Flagg Bros. v Brooks (436 US 149), the argument was rejected that a private sale of goods subject to a warehouseman’s lien as authorized by section 7-210 of the Uniform Commercial Code, a statute strikingly similar to those challenged in this case, constitutes State action. The court observed that it is immaterial that a warehouseman’s lien is statutory, emphasizing that the statute does not encourage the warehouseman to engage in any activity. "Here”, the court said, "the State of New York has not compelled the sale of a bailor’s goods, but has merely announced the circumstances under which its courts will not interfere with a private sale.” (Flagg Bros. v Brooks, supra, at p 166.) The court concluded that the realm of private commercial transactions is inappropriate for an expansive application of the sovereign function doctrine of State action.

Particularly paradoxical is that the present overturning of commercial legal principles occurs in a court noted throughout its history for its sensitivity and leadership in the commercial field. In doing so, the majority refers to the State action doctrine, the ground for its holding, as an "elusive principle” at p 158). Significant, too, is that the principles now being applied so hastily and with such novelty will proliferate similar litigation and by analogy propagate similar applications in parallel commercial lien transactions. This hasty embrace of novel doctrine follows on the heels of the rejection of the same attempted extension of the State action doctrine by the very court which gave initial impetus to the doctrine in more appropriate contexts. Moreover, this rejection by the Supreme Court undermines the reasoning and the authorities upon which the Appellate Division relied and respondent also relied until their repudiation by the Supreme Court.

I believe the analysis in Flagg applies with equal force to the statutes challenged today. Not only is a private commercial transaction involved here, but the interest of the garage-man in a chattel, having stored it and having enhanced its value, is more substantial than the interest of a warehouseman, who merely stores a chattel.

The majority, however, asserts that "the mere fact that an activity might not constitute State action for purposes of the Federal Constitution does not perforce necessitate that the same conclusion be reached when that conduct is claimed to be violative of the State Constitution.” (At p 159.) Particularly in a case such as this involving commercial transactions, I would be reluctant to hold, as the majority does, that State and Federal due process protections are not coextensive. "The clauses”, we said in Central Sav. Bank v City of New York (280 NY 9, 10), "are formulated in the same words and are intended for the protection of the same fundamental rights of the individual and there is, logically, no room for distinction in definition of the scope of the two clauses.” There is little difference of constitutional dimension for State action purposes between the two clauses. Both clauses are aimed directly at limiting the ability of State government to deal unfairly with its citizens. Clearly, then, the due process clauses are limited in their operation to situations where there is State involvement. This emphasis on State action ensures that citizens are protected from arbitrary and capricious action by the State.

Apparently the majority concedes that under the State Constitution due process may not be invoked absent "State involvement”. I would add that the State involvement must be significant, rather than incidental. Traditionally, an inquiry into whether the State is significantly involved in private activity has focused on the nexus between the government and the private conduct. A close entwinement between the two has resulted in a finding of State action. Thus, where the State reaps some benefit from the private conduct (Phillips v Money, 503 F2d 990, cert den 420 US 934), or where the State encourages the private activity (Reitman v Mulkey, 387 US 369), State action has been found. To be sure, participation of government agents or officials may signal the presence of State action (Fuentes v Shevin, 407 US 67; Sniadach v Family Fin. Corp., 395 US 337).

But the presence or absence of State action may not be determined simply by tallying the number of connections between the State and a particular private activity. Nor can it be said that the mere statutory authorization of an activity signals that the State has become a participant or has encouraged the activity. (Flagg Bros. v Brooks, 436 US, at pp 164-166, supra; Moose Lodge No. 107 v Irvis, 407 US 163; Davis v Richmond, 512 F2d 201.) A fundamental role of government is to provide rules for private persons in private transactions which will lend guidance to those whose private interests are in conflict. Such is the mechanism for preserving an orderly and viable society. Exercise of this governmental regulatory and rule-making power alone in an otherwise free society, does not necessarily manifest State action, for of paramount concern is how the acts of government impact on the ordering of private rights and interests. Vindication of a substantial private interest by law may not constitute State action, while State action is more readily found in a law which propels an insubstantial interest of one individual over a more substantial interest of another. (Note, State Action and the Burger Court, 60 Va L Rev 840, 841; Burke and Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 47 S Cal L Rev 1, 52.) Application of the concept of State action by the courts indicates the validity of this approach. The concept was originally developed and greatly expanded in racial discrimination cases involving denials of equal protection, an area of intense judicial concern and substantive constitutional interest. (Shelly v Kraemer, 334 US 1, 23.) Where racial discrimination has not been at issue, however, courts have construed the State action concept more narrowly. (Adams v Southern Cal. First Nat. Bank, 492 F2d 324, 333, cert den 419 US 1006; Coleman v Wagner Coll., 429 F2d 1120, 1127 [Friendly, J., concurring].)

Since the garageman’s lien (Lien Law, § 184) is merely a modern statutory codification of the ancient artisan’s lien, a proper application of the indices of State action to the case before us may be made only after reviewing the common-law artisan’s lien. At common law, a workman who, with the consent of the owner, enhanced the value of a chattel, obtained an artisan’s lien on the chattel for the reasonable value of the work performed. (Morgan v Congdon, 4 NY 552, 553; 1 Jones, Liens [2d ed], § 731, p 480.) The equity of this fundamental principle of law is readily grasped, for a workman having invested his labor, time and materials in repairing or maintaining another’s personal property must be extended some means of securing just compensation. (Brown, Personal Property [3d ed], § 13.2, p 398.) No one contends in this case, nor could one seriously contend, that the common-law creation of the artisan’s lien involved State action. Such a lien reflected the legal mechanism fashioned to accommodate the competing interests of the artisan and the owner of personal property. Both the private nature of the interests and the lack of governmental participation in the resolution of the conflict removed the artisan’s lien from the ambit of State action. Likewise, statutory codification of the common-law lien is equally unsuited to State action classification, legislative enactments having altered merely the form, rather than the substance, of the artisan’s lien. (IDS Leasing Corp. v Hansa Jet Corp., 51 AD2d 536, affg 82 Misc 2d 741; Melara v Kennedy, 541 F2d 802; see Lien Law, §§ 180, 184, 185, 186.)

While the challenged statutory scheme authorizes more than a mere possessory lien, permitting the lienor to conduct a foreclosure sale of the chattel (Lien Law, § 200) subject to strict notice requirements (Lien Law, §§ 201, 202), such an expansion of rights is merely an exercise of the State’s regulatory powers to provide guidelines for the resolution of legitimate divergent interests. The garageman, having enhanced the value of the chattel, has obtained a significant property interest in it. This interest served as the springboard for the creation of the common-law artisan’s lien, and it similarly supports statutory authorization for the lienor to foreclose the lien. Indeed, a mere possessory lien without the right to sell would offer little benefit to the garageman who might ultimately bear the expense and inconvenience of storage of the vehicle indefinitely. Such a burden could defeat the very purpose sought to be achieved by the lien. The right to foreclose, upon proper prior notice to the owner, is therefore both a reasonable and necessary means of insuring that the lien will serve its intended purpose. By contrast, the rights of the owner of the chattel are affected only minimally by the sale, since the lienor’s right to possession continues indefinitely until satisfied. The substantial interests of the garageman in the chattel, and the lesser impact that these statutes have on the interests of the owner, compel the conclusion that these statutes have not worked a significant reordering of the interests involved. The challenged private conduct should therefore not be attributed to the State.

Moreover, the other indices of State action are not present to any significant degree. No benefit inures to the State by operation of these statutes, nor is the State encouraging the lienor to take any action whatever; the initiative rests with the lienor. As to governmental participation, it cannot be argued persuasively that the purely incidental involvement of a licensed auctioneer, who conducted the sale, or of the Department of Motor Vehicles, which transfers title of vehicles, rises to the level of State action, any more than that the use of the post office to mail the notice of sale constitutes Federal action. Indeed, the majority agrees that the State involvement must be more than just that and that it must be a "rather significant State involvement.” (At p 158.)

In concluding that no State action is present in this case, I am mindful that in Blye v Globe-Wernicke Realty Co. (33 NY2d 15), we found that the seizure of property by an innkeeper pursuant to section 181 of the Lien Law constituted State action. The rationale of that decision was that the innkeeper, in seizing a guest’s property, has executed his own seizure under the lien. This procedure resembles a seizure in satisfaction of a judgment, a traditional function of the Sheriff. But in Blye, we did not hold that the performance of any governmental function is necessarily State action. Implicit in that decision we recognized the nature of the competing interests of the parties. The interest of the guest to be free from the forcible seizure of his personal property was exalted above the interest of the innkeeper to satisfy a lien for use of premises and incidental services, by seizing property bearing no relationship to the lien. The statutes challenged today stand in a significantly different posture, since the property subject to the lien, having been voluntarily delivered to the garageman, is seized by neither the lienor nor the Sheriff. Moreover, in contrast to the innkeeper, the garageman, in enhancing the value of the chattel, has acquired a substantial interest in the detained property.

The majority, however, strains to reject this analysis so that it may nullify the challenged Lien Law provisions. However laudable the intentions of the majority may be, its ruling can only glut the commercial realm with pointless and trivial litigation. Surely, in the vast majority of cases where a garageman’s lien goes unsatisfied, the value of the lien is uncontested and insufficient to warrant litigation. Our Legislature, apparently aware of this problem, enacted the statutes in question merely to extend to all lienors the right of sale, recognized at common law in a pledge of personal property, with certain added stringent provisions as to notice of the impending sale to the owner inserted for his protection. These notice requirements were imposed to insure that the owner of the vehicle is informed of the proposed sale and has ample opportunity to take action to protect his interests. We should not interfere with this reasonable regulation of private conduct.

The majority opinion states that "[a]bsent consent of the debtor, the power to fashion the means to order legally binding surrenders of property has always been exclusively vested in the State” (at p 162). I assume that the majority refers, among other things, to the classic pledge of personal property in which the pledgor expressly or impliedly "consents” to private sale of the pledged chattel in the event of default. The distinction, if that it be, from the statutory right to private sale in the event of a default in the obligation which gave rise to the lien is verbalistic. It is just as correct to say that the owner who gives possession of property for purposes of repair or other enhancement consents to the statutory right to execute the lien. He certainly does so impliedly, in the same way that innumerable other private transactions imply, as a matter of law, statutory obligations and conditions which affect property interests. (E.g., insurance policies, negotiable instruments [especially if collateralized], leases of real property, powers of attorney, general releases, covenants not to sue, rights of entry and rights to notice of termination in leaseholds [whether for a term or at will], contracts of employment, and the like.) The shallowness of the distinction is exposed by the fact that any garageman who, at the behest of a lawyer, added a pledge of the vehicle to secure the service charges for repair or storage would avoid what the court today holds to be a violation of constitutional due process.

Moreover, the court has severely afflicted the sphere of private commercial transactions, for this ruling applies equally to the numerous other liens on personal property which were enforceable by the provisions now declared unconstitutional. (Lien Law, § 180 [artisan’s lien on personal property]; § 183 [veterinarians and bailees of animals]; § 185 [manufacturers and throwsters of silk goods]; § 188 [persons engaged in the business of a motion picture film laboratory]; § 186 [jewelers who perform work on watches or jewelry]; § 187 [truckmen and draymen].) Thus, a shoemaker with a lien on a pair of shoes he has repaired or a tailor with a lien on a jacket he has mended will have to seek judicial sanction before satisfying his lien for services performed, even though the debtor has voluntarily relinquished possession of the goods in question and agreed to pay the lienor for the services rendered. In addition, should section 7-210 of the Uniform Commercial Code, the very warehouseman’s lien foreclosure provision recently upheld by the Supreme Court in Flagg Bros. v Brooks (436 US 149, supra) be challenged in State court, stare decisis impels that we declare it unconstitutional. A constitutional attack on section 7-308 of the Uniform Commercial Code, which similarly provides for the foreclosure of a carrier’s lien without a prior judicial hearing, must now likewise be successful. Such results would be particularly distressing where commercial dealings between merchants are involved. Transactions of this nature, essential to the economic vitality of our State, should be free from a judicially inflicted procedural quagmire.

Troublesome, too, is that this court’s ruling, applicable only in this State, will affect the uniformity of commercial lien law as it exists in most of the States. To the extent it may affect the Uniform Commercial Code, it undermines a part of that statute on the basis of a single State’s constitutional vagary in interpretation. Quite a different matter would have been presented if the Supreme Court had accepted, rather than rejected, the novel extension of the State action doctrine.

Due process of law is a constitutional mandate, not an excuse for the imposition of one’s predilections. Rejecting sound analysis, the majority insists on voiding a reasonable statutory framework in the name of due process, when this decision will deal another blow to the economic welfare of the State. I cannot concur in such a result, and vote for reversal of the order of the Appellate Division.

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

Order affirmed, etc.

      . In the series of cases in which the Supreme Court has imposed the requirements of procedural due process in situations in which a creditor sought to deprive a debtor of a significant property interest (Sniadach v Family Fin. Corp., 395 US 337; Fuentes v Shevin, 407 US 67; Mitchell v Grant Co., 416 US 600; North Ga. Finishing v Di-Chem, 419 US 601), State action was manifest since the seizure was effected by officers of the State or by judicial process. In contrast, here the involvement of the State is concededly less direct (see Burke & Reber, State Action, Congressional Power and Creditors’ Rights: An Essay on the Fourteenth Amendment, 47 S Cal L Rev 1, 53; Note, Procedural Due Process — Post-Fuentes Constitutionality of Garagemen’s Liens, 54 BU L Rev 542, 550-551).

      .There are, of course, substantial differences between the private sale of goods authorized by the warehouseman’s lien law and the private sale authorized by sections 200, 201, 202 and 204 of the Lien Law. Critical to the determination in Flagg Bros, that the private sale did not constitute State action was the "total absence of overt official involvement” (436 US, at p 157). Here, that overt governmental involvement absent in Flagg Bros, is present to some degree. In this State, title to an automobile cannot be transferred, and thus a sale cannot be accomplished under the Lien Law, without registration of the vehicle by the Department of Motor Vehicles and its issuance of a certificate of title (Vehicle and Traffic Law, §§ 401, 420, 2104, 2107, 2113-2115, 2117). Thus, the fact that initiation of the sale stems from a private source does not detract from the necessity that the garageman invoke both the power of the sovereign and the participation of public officials to bring about the involuntary transfer of title. The power of the State utilized to implement the involuntary transfer of title pursuant to the Lien Law may be sufficiently analogous to the issuance of a writ by a court clerk in Sniadach v Family Fin. Corp. (395 US 337), Fuentes v Shevin (407 US 67) and North Ga. Finishing v Di-Chem (419 US 601) to support a finding of overt State involvement in the garagemen’s sale. However, in view of our determination that the challenged provisions of the Lien Law are violative of the due process clause of the State Constitution, it is unnecessary for us to decide that question.

      .It is true, as the Attorney-General and others have suggested, that the facts in Blye are distinguishable from those involved here. Blye involved the constitutionality of New York’s innkeeper’s lien (Lien Law, § 181), which permitted the summary seizure of the property of a guest. In contrast, the possessory lien of a garageman (Lien Law, § 184), arises out of a voluntary bailment by the owner of the vehicle, and in any event is not in issue here. Whatever the relative interests of the garageman or the innkeeper might be, the fact remains that whether the debtor’s property is summarily seized or is sold ex parte, the individual doing so is performing the traditional functions of the Sheriff and his actions are attributable to the State for purpose of section 6 of article I of the New York Constitution.

      .The statutory scheme relating to the garageman’s lien and its foreclosure is relatively simple. Section 184 of the Lien Law grants a garageman a possessory lien against a motor vehicle for charges incurred in connection with its maintenance, repair or storage. The constitutionality of the possessory lien was upheld by the Appellate Division in IDS Leasing Corp. v Hansa Jet Corp. (51 AD2d 536, affg 82 Misc 2d 741), and is not in issue here. Section 200 of the Lien Law permits the possessory lien of the garageman to be satisfied by the ex parte sale of the vehicle. Section 201 provides that prior to the sale of the vehicle, the garageman shall serve a notice of sale upon the owner. Section 202 specifies that the sale of the vehicle take place at a previously advertised public auction. Finally, section 204 provides that the garageman shall retain an amount sufficient to satisfy his lien and the expenses incurred in connection with the sale from the proceeds; any balance remaining to be held by the garageman subject to the demand of the now-former owner of the vehicle.

      .In reaching this conclusion, we do not write on a clean slate. A significant number of courts have reached and decided the merits of procedural due process challenges to garageman’s lien foreclosure acts, striking down statutes virtually indistinguishable from those at issue here (see Parks v "Mr. Ford", 556 F2d 132; Hernandez v European Auto Collision, 487 F2d 378; Caesar v Kiser, 387 F Supp 645; Mason v Garris, 360 F Supp 420, mod 364 F Supp 452; Straley v Gassaway Motor Co., 359 F Supp 902; Cockerel v Caldwell, 378 F Supp 491; Ford v Dean’s O.K. Tire Store, CCH Poverty L Rep, par 16,856; Adams v Department of Motor Vehicles, 11 Cal 3d 146, supra; Whitmore v New Jersey Div. of Motor Vehicles, 137 NJ Super 492; Ann., 64 ALR3d 814; cf. Blye v Globe-Wernicke Realty Co., 33 NY2d 15, supra; Cox Bakeries of N. D. v Timm Moving & Stor., 554 F2d 356, supra; Culbertson v Leland, 528 F2d 426; Johnson v Riverside Hotel, 399 F Supp 1138; Ragin v Schwartz, 393 F Supp 152; Isbel v County of Sonoma, 21 Cal 3d 61; Barry Props. v Frick Bros. Roofing Co., 277 Md 15). Although the holdings of a number of the Federal cases cited above have been undermined by the "State action” determination of the Supreme Court in Flagg Bros. v Brooks (436 US 149, supra), their substantive determinations remain unimpaired, viz., that ex parte foreclosure of an artisan’s lien is constitutionally infirm inasmuch as it affords no opportunity to be heard prior to the final deprivation of a significant property interest.

      .We are not unmindful of the stake that a garageman has in the prompt enforceability of his lien. However, this interest should not be deemed inconsistent with the vehicle owner’s right to be afforded the opportunity for some sort of prior judicial determination of the existence and scope of the lien. In this regard, we do not pass on the form of the hearing which the due process clause requires (see Friendly, Some Kind of Hearing, 123 U of Pa L Rev 1267, 1275). As the Supreme Court has aptly noted, "we deal here only with the right to an opportunity to be heard. Since the issues and facts decisive of rights * * * may very often be quite simple, there is a likelihood that many defendants would forgo their opportunity, sensing the futility of the exercise in the particular case. And, of course, no hearing need be held unless the defendant, having received notice of his opportunity, takes advantage of it” (Fuentes v Shevin, supra, at pp 92-93, n 29).

      .There are a number of statements in the dissenting opinion which merit comment. Most importantly, we do not hold or even intimate that the statutes at issue here are not violative of the due process clause of the Federal Constitution (dissenting opn, at p 168). Rather, when tested by the dictates of the State due process clause, the statutes fail to pass constitutional muster thus rendering any inquiry of State action for purposes of the Fourteenth Amendment wholly academic (at pp 158-160, and n 2). Noticeably, the dissenters do not address the issue of whether the deprivation of a motor vehicle under the questioned statutes accords with fundamental concepts of justice and fairness.
      Also disturbing is the dissent’s suggestion that our holding is afflicted with "hasty embrace” or "novelty” or of a single State court (dissenting opn, at p 168). This is so, especially in view of the number of well-respected courts of other jurisdictions, notably those of commercially active States such as California and New Jersey, which have struck down statutes similar to those in issue here (see n 5, supra). This case was argued over two months ago and the subject has been before courts for years (see Ann., 64 ALR3d 814).
      Moreover, it is difficult, if not impossible, to imagine that the lengthy list of horribles posed by the dissenters (dissenting opn, at p 172), will relegate the economy of this State into a Brobdingnagian "quagmire”. For all that appears, no disastrous aftermath followed in those States whose courts saw fit to invalidate similar statutes. Even assuming that the dire consequences which so alarm the dissenters could somehow come to pass, to exalt economic considerations over the rights of our citizens is nothing more than abdication of this court’s constitutional responsibility (cf. Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90). This is not a case involving merchants where commercial considerations might necessitate a greater degree of deference to legislative judgment (cf. Uniform Commercial Code, § 2-104). Involved here are consumers, frequently poor and unrepresented by counsel, who cannot be deemed to have forfeited their constitutional rights simply because they have engaged the services of someone in the commercial sector. We hold only that a garageman with a possessory lien on a repaired motor vehicle must afford its owner an opportunity to be heard before his ownership interest may be extinguished. The dissenters’ concerns notwithstanding, this court has yet to shirk its responsibility and deprive persons of their constitutional rights because of unwarranted fears of overburdened court calendars. Moreover, nothing prevents the garage-man from securing the owner’s knowing waiver of his opportunity for a hearing when possession is initially transferred as many artisans and merchants are wont to do.
      Nor have we expressed any opinion as to the constitutionality of statutes not here in issue. It may very well be that in some instances the significance of the property interest involved does not rise to cdnstitutional proportions. However, we do not fall back from our position that where a garageman, with the blessing of the State, purports to deprive a person of an economic necessity such person be afforded an opportunity to be heard.

      .In Jones v Gordon (76 Civ 1430, US Dist Ct, EDNY, June 21, 1978), the court held that the Flagg decision precludes a finding that sections 200-202 and 204 of the Lien Law involve State action since they are functionally and conceptually identical to section 7-210 of the Uniform Commercial Code, the statute challenged in Flagg.

      .It is noteworthy that no decision, including those mentioned in footnote 5 of the majority opinion, which invalidated statutes similar to those at issue here, relied strictly on State, as opposed to Federal, due process grounds. Because all these cases preceded Flagg, their continued viability is questionable.