text:
    [645 NE2d 720, 621 NYS2d 287]
    In the Matter of Cathy Allen, Appellant, v Elin M. Howe, as Commissioner of the Office of Mental Retardation and Developmental Disabilities, et al., Respondents. In the Matter of Diane Spiegel, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, Respondent.
    Argued October 20, 1994;
    decided December 21, 1994

      POINTS OF COUNSEL

      Paul S. Bamberger, Albany, and Nancy E. Hoffman for appellant in the first above-entitled proceeding.
    I. The termination of petitioner’s employment must be reviewed using "strict scrutiny” analysis under the Equal Protection Clauses of the Federal and State Constitutions. (Shapiro v Thompson, 394 US 618; Cleveland Bd. of Educ. v Loudermill, 470 US 532; Board of Regents v Roth, 408 US 564; Matter of Prue v Hunt, 78 NY2d 364; Logan v Zimmerman Brush Co., 455 US 422; Harper v Virginia Bd. of Elections, 383 US 663; Griffin v Illinois, 351 US 12.) II. Even if the "rational basis” test is applied in this case, respondents have violated Equal Protection Clauses of the Federal and State Constitutions. (Matter of McDermott v Forsythe, 188 AD2d 173; Frontiero v Richardson, 411 US 677; Matter of Abrams v Bronstein, 33 NY2d 488; Metropolitan Life Ins. Co. v Ward, 470 US 869; Cleburne v Cleburne Living Ctr., 473 US 432.) III. The legislative history of Civil Service Law § 71 compels the conclusion that section 71 provides for a continuous one-year leave of absence. (Smith v People, 47 NY 331; Chase v Lord, 77 NY 1; People ex rel. Bockes v Wemple, 115 NY 302; Matter of Duncan v New York State Dev. Ctr., 93 AD2d 242, 63 NY2d 128.) IV. Respondents ignored and misinterpreted current State regulations in making the decision to deny petitioner a continuous year leave of absence. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Grace v Board of Educ., 19 AD2d 637; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Schampier v Office of Gen. Servs., 73 AD2d 1011, 52 NY2d 746; Matter of County of Oneida v Berle, 91 Misc 2d 694.)

      G. Oliver Koppell, Attorney-General, Albany (Daniel Smirlock, Jerry Boone and Peter H. Schiff of counsel), for respondents in the first above-entitled proceeding.
    I. The civil service rules permitting discharge of an employee after a cumulative absence of one year due to an occupational injury are reasonable. (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128; Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Matter of England v Commissioner of Educ. of State of N. Y, 169 AD2d 868, 77 NY2d 956; Matter of Pascal v Board of Educ., 100 AD2d 622; O’Dea v School Dist. of City of Niagara Falls, 122 AD2d 553; Matter of Grace v Board of Educ., 19 AD2d 637.) II. The termination of petitioner’s employment after a cumulative absence of one year did not violate her equal protection rights. (Matter of Abrams v Bronstein, 33 NY2d 488; Lovelace v Gross, 80 NY2d 419; Dandridge v Williams, 397 US 471; Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; Cleveland Bd. of Educ. v Loudermill, 470 US 532; Winkler v Spinnato, 72 NY2d 402, 490 US 1005; Maresca v Cuomo, 64 NY2d 242, 474 US 802; Cass v State of New York, 58 NY2d 460; Matter of Tolub v Evans, 58 NY2d 1, 460 US 1076; Logan v Zimmerman Brush Co., 455 US 422.)

      Paul S. Bamberger, Albany, and Nancy E. Hoffman for appellant in the second above-entitled proceeding.
    I. The termination of petitioner’s employment violated the Equal Protection Clauses of the Federal and State Constitutions. (Shapiro v Thompson, 394 US 618; Cleveland Bd. of Educ. v Loudermill, 470 US 532; Board of Regents v Roth, 408 US 564; Matter of Prue v Hunt, 78 NY2d 364; Logan v Zimmerman Brush Co., 455 US 422; Harper v Virginia Bd. of Elections, 383 US 663; Griffin v Illinois, 351 US 12; Matter of McDermott v Forsythe, 188 AD2d 173; Frontiero v Richardson, 411 US 677; Matter of Abrams v Bronstein, 33 NY2d 488.) II. The legislative history of Civil Service Law § 71 compels the conclusion that section 71 provides for a continuous one-year leave of absence. (Smith v People, 47 NY 331; People ex rel. Bockes v Wemple, 115 NY 302; Matter of Duncan v New York State Dev. Ctr., 93 AD2d 242, 63 NY2d 128.) III. Respondents ignored and misinterpreted current State regulations in making the decision to deny petitioner a continuous year leave of absence. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Grace v Board of Educ., 19 AD2d 637; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Schampier v Office of Gen. Servs., 73 AD2d 1011, 52 NY2d 746; Matter of County of Oneida v Berle, 91 Misc 2d 694.)

      G. Oliver Koppell, Attorney-General, Albany (Daniel Smirlock, Jerry Boone and Peter H. Schiff of counsel), for respondent in the second above-entitled proceeding.
    I. The civil service rules permitting discharge of an employee after a cumulative absence of one year due to an occupational injury are reasonable. (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128; Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Matter of England v Commissioner of Educ. of State of N. Y. 169 AD2d 868, 77 NY2d 956; Matter of Pascal v Board of Educ., 100 AD2d 622; O'Dea v School Dist. of City of Niagara Falls, 122 AD2d 553; Matter of Grace v Board of Educ., 19 AD2d 637.) II. Petitioner may not raise her constitutional argument for the first time on appeal. (Sega v State of New York, 60 NY2d 183; Smith v Smith, 116 AD2d 810; Constantini v Benedetto, 181 AD2d 301; Brahm v Hatch, 169 AD2d 263.) III. The termination of petitioner’s employment after a cumulative absence of one year did not violate her equal protection rights. (Matter of Abrams v Bronstein, 33 NY2d 488; Lovelace v Gross, 80 NY2d 419; Dandridge v Williams, 397 US 471; Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; Cleveland Bd. of Educ. v Loudermill, 470 US 532; Winkler v Spinnato, 72 NY2d 402, 490 US 1005; Maresca v Cuomo, 64 NY2d 242, 474 US 802; Cass v State of New York, 58 NY2d 460; Matter of Tolub v Evans, 58 NY2d 1, 460 US 1076.)
   OPINION OF THE COURT

Ciparick, J.

Civil Service Law § 71 entitles an employee disabled by an occupational injury to a leave of absence for at least one year, unless the injury permanently disables the employee from the performance of work duties. Respondents have promulgated regulations construing this provision to mean that an employee who is absent due to an occupational disability for a cumulative period of one year is subject to termination if physically or mentally unable to return to work. We conclude that respondents’ interpretation of Civil Service Law § 71 should be upheld and that it advances the State’s substantial interest in the productive and economically efficient operation of its civil service, and does not abridge equal protection or due process guarantees. Therefore, we now affirm the orders of the Appellate Division.

I.

Petitioners, two State employees who were discharged following cumulative one-year absences occasioned by occupational injuries, commenced separate CPLR article 78 proceedings challenging respondents’ termination decisions as arbitrary and capricious and violative of Civil Service Law § 71, and seeking reinstatement to their former positions. Both petitioners received letters in advance of termination advising that each was subject to discharge upon the completion of one cumulative year of absence pursuant to section 71 and 4 NYCRR 5.9. Throughout their absences, petitioners received workers’ compensation benefits.

Petitioners maintain that section 71 does not authorize respondents to terminate an employee disabled in the course of employment until such employee has been absent for a continuous one-year period, not for an aggregate one-year period as calculated by respondents. Petitioners contend that the one-year period should be construed as a consecutive period of 365 days rather than a cumulative period totalling 365 days. Petitioner Allen additionally alleges that her termination resulted in a denial of equal protection in that a similarly situated employee suffering from an ordinary, nonoccupational injury is subject to termination under Civil Service Law § 73 only after a continuous one-year absence. According to petitioner Allen, respondents’ divergent interpretations of Civil Service Law §§71 and 73 result in disparate treatment of similarly situated civil service employees. Moreover, petitioner Allen claimed that respondents’ termination procedure violated her due process rights.

Supreme Court dismissed the petitions, and upheld respondents’ interpretation of Civil Service Law §71 as rational, rejecting petitioner Allen’s equal protection and due process claims. In each case, the Appellate Division affirmed, with one Justice dissenting (see, Matter of Allen v Howe, 194 AD2d 1; Matter of Spiegel v Perales, 198 AD2d 727).

Petitioner Allen appeals as of right (CPLR 5601 [b] [1]). This Court granted petitioner Spiegel leave to appeal.

n.

Initially, we reject petitioners’ contention that the Civil Service Department’s construction of Civil Service Law § 71 is irrational (see, Howard v Wyman, 28 NY2d 434, 438). A comparison of section 71 and section 73, which uses the term "continuous” in connection with measurement of leaves of absence, supports the agency’s construction. Similarly, the legislative history of the leave of absence provisions indicates that the Legislature did not amend section 71 to add the element of "continuous” absence when it adopted section 73, thereby demonstrating its preference for differential treatment. In this regard, petitioners’ reference to General Construction Law § 58, which defines the term year to mean 365 days, in support of their claim that respondents misconstrued the intent of section 71, is misguided. General Construction Law § 58, like Civil Service Law § 71, does not specify how the 365 days should be counted.

We also reject petitioners’ equal protection claim. Civil Service Law §§ 71 (L 1958, ch 790) and 73 (L 1965, ch 508, renum § 73 by L 1969, ch 225, § 1) were adopted to address the difficult situation created by the prolonged absence of a civil service employee (see, Bill Jackets, L 1958, ch 790; L 1965, ch 508). Prior to the enactment of these provisions, a civil service employer was unable to fill the vacancy created by the absent, disabled employee, short of the employee’s resignation, unless the employer instituted a disciplinary proceeding alleging incompetency or incapacity to perform, and the employee was dismissed after a hearing adjudging such "incompetency.” From the perspective of the State governmental employer, resort to a disciplinary proceeding was not viewed as a practical or appropriate response to the void created by the absent employee, and the stigma associated with a disciplinary proceeding obviously prejudiced the employee’s future civil service career.

By establishing the point at which injured civil servants may be replaced, sections 71 and 73 strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability (see, Matter of Economico v Village of Pelham, 50 NY2d 120, 126; Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 134-135). Respondents’ determination to discharge employees absent due to occupational injuries after a cumulative one-year period, rather than a consecutive one-year period, reflects the fact that such employees are categorically different from employees absent because of ordinary disabilities.

Where, as here, neither a fundamental right is affected nor a suspect classification is created under section 71 or its implementing regulations, 4 NYCRR 5.9, 21.8, 28-1.8, the standard of review is rationality, which tests whether the challenged distinction bears a reasonable relationship to some legitimate legislative objective (see, Alevy v Downstate Med. Ctr., 39 NY2d 326, 332; Maresca v Cuomo, 64 NY2d 242, 250, appeal dismissed 474 US 802). We conclude that because categorically different treatment of injured civil servants promotes an efficient civil service in a fiscally sound manner, it is rationally related to the State’s interest in employing productive civil servants. Moreover, the regulations promulgated by the Department of Civil Service, as implemented by respondents, represent a legitimate interpretation of section 71 that does not offend equal protection guarantees.

Sections 71 and 73 distinguish absences occasioned by occupational injuries from absences due to those injuries sustained outside the scope of employment for purposes of reinstatement to the civil service after an employee has exhausted disability leave and the employment is terminated. An employee who sustains an occupational injury is automatically entitled to a leave of absence for one year under section 71, and after the one-year separation from service has the right to apply for reinstatement to the same position, or any similar position, or be placed on a preferred eligible list in the event there is no vacancy (see, 4 NYCRR 5.9 [b]). In addition, such employee is entitled to a hearing to contest a finding of unfitness for reinstatement (see, 4 NYCRR 5.9 [b]). Section 73 only addresses termination of the employee absent for a continuous one-year period due to an ordinary injury, not necessarily on an authorized leave (see, Civil Service Law §72), with reinstatement and eligible list status limited to the former position or a similar or lower grade position in the same occupational field in the former agency.

We, therefore, reject as unfounded petitioners’ contention that respondents’ calculation of the one-year period under section 71 as an accumulation of 365 days, rather than a continuous one-year period as explicitly specified in section 73, is unlawful. Indeed, for individuals like petitioners, who sustained occupational injuries, section 71 affords greater procedural protections and opportunities for reinstatement, undermining their claims of unfairness and inequality.

Petitioner Allen’s further attempt to erode the legitimacy of the distinction between occupational and ordinary injuries in regard to termination from and reinstatement to civil service positions by arguing such distinction is impermissibly motivated solely by fiscal concerns is belied by the legislative history. It is well established that in matters concerning the public fisc, equal protection does not require every distinction be made with mathematical precision (see, Matter of Tolub v Evans, 58 NY2d 1, 8).

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

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

Order affirmed, with costs.

      . Civil Service Law § 71 provides, as pertinent, "Where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the [workers’] compensation law, he shall be entitled to a leave of absence for at least one year, unless his disability is of such a nature as to permanently incapacitate him for the performance of the duties of his position.” Section 71 is implemented by 4 NYCRR 21.8 (a), which prescribes how the one-year period is to be calculated and authorizes extensions of that time.

      . Civil Service Law § 73 provides, as relevant: "When an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the [workers’] compensation law, his employment status may be terminated and his position may be filled by a permanent appointment.”

      . See, e.g., Mem of Dept of Civil Service, Bill Jacket, L 1958, ch 790, at 18-23; Mem of Dept of Civil Service, Bill Jacket, L 1965, ch 508, at 1-2; Mem of Dept of Social Welfare, Bill Jacket, L 1965, ch 508, at 20; Mem of Conservation Dept, Bill Jacket, L 1965, ch 508, at 22.

      . See, e.g., Mem of Dept of Civil Service, Bill Jacket, L 1958, ch 790, at 22; Mem of Counsel, Public Service Commn, Bill Jacket, L 1965, ch 508, at 14; Mem of Dept of Correction, Bill Jacket, L 1965, ch 508, at 24; Mem of Dept of Motor Vehicles, Bill Jacket, L 1965, ch 508, at 25; Mem of Div of Parole, Bill Jacket, L 1965, ch 508, at 26.


source: Caselaw Access Project

author: Simons, J. Ciparick, J.

license: Public Domain

text:
    [645 NE2d 724, 621 NYS2d 291]
    In the Matter of Nicola S. Brusco, Respondent, v Richard F. Braun, as Civil Court Judge, Appellant, et al., Respondent.
    Argued November 29, 1994;
    decided December 22, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General, New York City (Barbara A. Mehlman, Jerry Boone and Sanford M. Cohen of counsel), for appellant.
    Mandamus does not lie to compel Judge Braun to render judgment without an inquest because the act of rendering judgment involves judicial discretion. (Klostermann v Cuomo, 61 NY2d 525; Matter of Crain Communications v Hughes, 74 NY2d 627, 843; Vogel v Edwards, 283 NY 118; Evarts v Kiehl, 102 NY 296; Matter of Park Holding Co. v Arber, 145 Misc 2d 39; Matter of Voccola v Shilling, 88 Misc 2d 103, 57 AD2d 931; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Geer, Du Bois & Co. v Scott & Sons Co., 25 AD2d 423; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568; Rokima Opt. Co. v Camera King, 63 NY2d 728.)

      Nicholas E. Brusco, respondent pro se.

    I. The law imposes a clear duty upon appellant to render judgment on petitioner’s nonpayment petition, verified on personal knowledge, without requiring oral testimony of witnesses where respondent tenant has defaulted. (Matter of Corbin v Hillery, 74 NY2d 279, affd sub nom. Grady v Corbin, 495 US 508; Carteret Sav. Bank v East-West Assocs. Ltd. Partnership, 143 AD2d 612, 73 NY2d 918, 74 NY2d 651; Matter of Great E. Mall v Condon, 36 NY2d 544; Matter of Kuhl v Hubbard, 93 Misc 2d 1058; Hanover Estates v Finkelstein, 194 Misc 755; Velazquez v Thompson, 451 F2d 202; Cotignola v Lieber, 34 AD2d 700; Sanders v Winship, 57 NY2d 391; Matter of Hurowitz v Board of Elec

      tians, 53 NY2d 531; Evarts v Kiehl, 102 NY 296.) II. The legislative history of RPAPL 732 (3) shows that routine inquests are not authorized upon default in nonpayment proceedings. III. The defaulting respondent tenant has no substantive right to an inquest nor does the inquest provide any substantive right. (Velazquez v Thompson, 451 F2d 202; Matter of Farnham v City of New York, 139 AD2d 579; East Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Corp. v Serrano, 153 Misc 2d 776; C. I. Planning v Weeks, 112 AD2d 854; Brandt v Kosenko, 57 Misc 2d 574; Klostermann v Cuomo, 61 NY2d 525; Seawall Assocs. v City of New York, 74 NY2d 92, cert denied sub nom. Wilkerson v Seawall Assocs., 493 US 976.) IV. Mandamus is proper to compel appellant to render judgment without inquest. (Matter of Knight v Howell, 262 App Div 759; Klostermann v Cuomo, 61 NY2d 525; People ex rel. Allen v Murray, 2 Misc 152, 138 NY 635.)

      MFY Legal Services, Inc., New York City (Stephen Myers and Andrew Goldberg of counsel), Legal Services for New York City (Andrew Scherer and David Robinson of counsel) and The Legal Aid Society (Scott A. Rosenberg and Barbara Q. Gray of counsel), for Metropolitan Council on Housing and others, amici curiae.

    I. CPLR 3215 applies in summary nonpayment proceedings. (Sanders v Winship, 57 NY2d 391.) II. RPAPL 732 is not inconsistent with CPLR 3215. (Evarts v Kiehl, 102 NY 296.) III. Mandamus does not lie since the scheduling of an inquest is a matter of discretion. (Spring Realty Co. v New York City Loft Bd., 69 NY2d 657, 482 US 911; Klostermann v Cuomo, 61 NY2d 525; Matter of Grisi v Shainswit, 119 AD2d 418; Matter of Morgenthau v Roberts, 65 NY2d 749; Matter of Royal Globe Ins. Co. v Nanas, 90 AD2d 518.) IV. Due process would be violated if Judges were denied the discretion to hold inquests prior to rendering judgments of possession. (Matter of City of Buffalo [Carlton St.], 78 NY 362; Vanderbilt v Schreyer, 81 NY 646; Ladd v Stevenson 112 NY 325; Matter of Pepsi-Cola Metro. Bottling Co. v Miller, 50 Misc 2d 40; Mountbatten Equities v Tabard Press Corp., 87 Misc 2d 865; 203 E. 13th St. Corp. v Lechycky, 67 Misc 2d 451; Canigiani v Deptula, 59 Misc 2d 401; Matter of Joseph v Cheeseboro, 42 Misc 2d 917; New York Univ. v Arnold, 133 Misc 2d 1040; Howard Oil Co. v Morris, 90 Misc 2d 713.) V. In rendering a default judgment, the court may hold an inquest or take other legally acceptable proof of the facts constituting the claim, the default and the amount due. (Joosten v Gale, 129 AD2d 531; Silberstein v

      Presbyterian Hosp., 96 AD2d 1096; Wine Antiques v St. Paul Fire & Mar. Ins. Co., 40 AD2d 657; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568; Matter of Park Holding Co. v Arber, 145 Misc 2d 39; Howard Oil Co. v Morris, 90 Misc 2d 713; Teitelbaum Holdings v Gold, 48 NY2d 51; Matter of City of Buffalo [Carlton St.], 78 NY 362; Barry v Mutual Life Ins. Co., 53 NY 536.)

      Horing & Welikson, P. C., Forest Hills, for Black & Latino Property Owners Coalition and another, amici curiae.

    I. By repeatedly rejecting proposed bills mandating inquests as conditions precedent to the granting of judgments on default in summary nonpayment proceedings, the New York State Legislature has evinced its intent that such procedure is unwarranted. II. The uniform rules for trial courts specify those instances wherein inquests are required, none of which pertain to obtaining a default judgment in a summary nonpayment proceeding. (People v Hollingsworth, 46 Misc 2d 1017; People v Martinez, 43 Misc 2d 94; Matter of Abrams v LaGuardia, 174 Misc 421; Regan v Heinbach, 91 AD2d 71, 58 NY2d 610.) III. CPLR 3215 is not applicable to summary nonpayment proceedings. IV. CPLR 3215 is in conflict with RPAPL 732 (3) and is thus not applicable to summary nonpayment proceedings. V. CPLR 3215, if found applicable to a summary nonpayment proceeding, does not require the automatic scheduling of inquests. VI. Statutorily mandated procedures provide appropriate protection for defaulting tenants.

      Komstein Veisz & Wexler, New York City (Laura Gilbert of counsel), Paula Galowitz and Jonathan Lang for the Association of the Bar of the City of New York, amicus curiae.

    I. The Court below incorrectly deprived Judges of the discretion to hold inquests before rendering judgment in nonpayment eviction cases. (People v Douglass, 60 NY2d 194; Matter of Morgenthau v Gold, 117 AD2d 386, 69 NY2d 735; Matter of Crain Communications v Hughes, 74 NY2d 627; Evarts v Kiehl, 102 NY 296; Klostermann v Cuomo, 61 NY2d 525; People ex rel. Francis v Common Council, 78 NY 33; Matter of Park Holding Co. v Arber, 145 Misc 2d 39; Teitelbaum Holdings v Gold, 48 NY2d 51; Barry v Mutual Life Ins. Co., 53 NY 536.) II. Since Judges exercise discretion in rendering judgment, mandamus was improper. (Klostermann v Cuomo, 61 NY2d 525; Matter of Gimprich v Board of Educ., 306 NY 401; People ex rel Hammond v Leonard, 74 NY 443; Matter of Crain Communications v Hughes, 74 NY2d 627.) III. The decision should be reversed because evictions contribute to homelessness, and inquests prevent illegal or unwarranted evictions. (Matter of Park Holding Co. v Arber, 145 Misc 2d 39; Matter of Blackgold Realty Corp. v Milne, 69 NY2d 719; MSG Pomp Corp. v Doe, 185 AD2d 798; East Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Corp. v Serrano, 153 Misc 2d 776.)
   OPINION OF THE COURT

Simons, J.

Petitioner Brusco is the owner of residential property in New York County. He commenced a summary proceeding against his tenant alleging that the tenant had defaulted in paying $3,626.04 rent due from December of 1991 through March of 1992 and seeking a judgment for the arrears, interest and attorney’s fees, a judgment awarding possession of the premises to petitioner and the issuance of a warrant to remove the tenant from the premises. Notwithstanding the tenant’s default in appearing, respondent Civil Court Judge refused to enter a judgment without an inquest. Petitioner instituted this CPLR article 78 proceeding seeking an order of mandamus directing him to sign a judgment in his favor without further proceedings, contending that the provisions of RPAPL 732 (3) require the court to "render judgment” upon default without an inquest. We agree and therefore affirm.

The summary proceeding was brought in the Housing Part of the New York City Civil Court, pursuant to the provisions of RPAPL article 7. A notice of petition was issued by the clerk of the Civil Court on March 13, 1992, and the notice and the petition were personally served upon the tenant on March 16. The notice advised the tenant that she must, within five days after service, appear before the clerk of the court or serve an answer upon petitioner. The tenant defaulted in appearing and on March 27, petitioner requested final judgment and a warrant evicting the tenant. She was advised that petitioner’s request had been placed on the "Judgment and Warrant Residential Default Applications Calendar” of April 13.

On the adjourned date, petitioner’s attorney appeared for the calendar call presided over by respondent. After petitioner’s case had been called twice without the tenant’s appearance, petitioner’s attorney asked the court to render a judgment, noting that the petition had been verified by the petitioner on personal knowledge and that an attorney had personally served it on the tenant. The court denied petitioner’s request and, following respondent’s general practice, scheduled the matter for an inquest on May 1, 1992. This article 78 proceeding followed.

Supreme Court dismissed the petition, holding that the scheduling of an inquest is within respondent’s discretion. On appeal, the Appellate Division, with one Justice dissenting, modified by granting so much of the petition as requested mandamus directing respondent to enter judgment of possession and rent due in favor of petitioner. The Appellate Division certified the following question to the Court of Appeals: "Was the order of this Court, which modified the judgment of the Supreme Court, properly made?”

It is well settled that the remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion (see, Matter of County of Fulton v State of New York, 76 NY2d 675, 678; Matter of Mullen v Axelrod, 74 NY2d 580, 583; Klostermann v Cuomo, 61 NY2d 525, 539; Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). A party seeking mandamus must show a "clear legal right” to relief (County of Fulton, supra, at 678, citing Matter of Legal Aid Socy. v Scheinman, supra). The availability of the remedy depends "not on the [petitioner’s] substantive entitlement to prevail, but on the nature of the duty sought to be commanded — i.e., mandatory, nondiscretionary action” (Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88, 97). Thus, the dispositive question on this appeal is whether respondent Braun retains any discretion to withhold a judgment pursuant to RPAPL 732 (3) when a petition proper in form and substance demonstrates grounds for relief and the supporting papers establish proper service on the tenant. We hold that he does not.

RPAPL article 7 sets forth the jurisdictional and procedural requirements for summary proceedings to recover possession of real property. Section 732 of the article, the section at issue in this appeal, defines "Special Provisions” that are applicable when the proceeding is grounded on the tenant’s failure to pay rent, provisions which the regulations make applicable in the New York City Civil Court (see, 22 NYCRR 208.42 [d]). The statute provides that if the tenant answers the petition, the clerk of the court is required to "fix a date for trial or hearing” (RPAPL 732 [2]). However, "[i]f the [tenant] fails to answer within five days from the date of service, as shown by the affidavit or certificate of service of the notice of petition and petition, the judge shall render judgment in favor of the petitioner” (RPAPL 732 [3]).

The plain language of the statute establishes two factual predicates to be determined by the court: whether petitioner has submitted an affidavit or certificate of service of the notice of petition and petition, and whether the tenant has failed to respond within five days of the date of service. If both conditions are met, the statute requires that "the judge shall render judgment in favor of the petitioner” (RPAPL 732 [3] [emphasis supplied]). The statute not only commands an action; it dictates the result. Where, as here, petitioner has proven service of the notice of petition and petition and the tenant has failed to appear, respondent has no discretion; judgment in favor of petitioner must be granted and mandamus lies to compel respondent to do that which the statute requires (see, People ex rel. Allen v Murray, 2 Misc 152, affd 138 NY 635).

Notwithstanding this unambiguous language, respondent maintains, and the dissent agrees, that the court may hold an inquest to look behind the default. "Rendering” judgment is a judicial act, he maintains, not subject to mandamus. He relies on dicta in Evarts v Kiehl (102 NY 296). In Evarts, a surety sought a judgment against the estate of a deceased Judge because, after hearing all the evidence and taking the case under advisement, the Judge failed to render judgment and enter it in the docket book. The determination of disputed facts is a judicial function and manifestly the court could not be compelled to decide the case, nor could entry of judgment be compelled when the case had not been decided. That, however, is substantially different from the posture of this summary proceeding pursuant to a statute which provides that issues of fact shall be resolved against the tenant upon the tenant’s default (compare, People ex rel. Allen v Murray, supra). We agree with the majority at the Appellate Division that as the term is used in section 732 (3), there is no substantive difference between "rendering judgment” and "awarding” or "granting” judgment and that mandamus lies to compel judgment "in favor of the petitioner” on the facts of this case.

Respondent asserts further that the provisions of CPLR 3215 (b), which permit an “assessment” when a plaintiff is required to apply to the court for a default judgment, authorize him to conduct an inquest. However, CPLR 3215 and RPAPL 732 (3) address the same subject matter — default judgments — and are inconsistent. The RPAPL does not provide for fact finding in the case of a defaulting tenant in a nonpayment proceeding (compare, RPAPL 731 [requiring hearing in all summary proceedings except those brought for nonpayment under RPAPL 732]) while the broader CPLR 3215 (b), permits fact-finding proceedings prior to the rendering of a default judgment. The CPLR provision does not apply because it has been abrogated by the more specific RPAPL 732 (see, CPLR 101 [CPLR “shall govern the procedure in civil judicial proceedings * * * except where the procedure is regulated by inconsistent statute”]; McKinney’s Cons Laws of NY, Book 1, Statutes § 397 ["A special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies”]).

Petitioner has complied with all the procedural requirements of RPAPL article 7: the petition was verified upon personal knowledge of the landlord (RPAPL 721, 741) and the notice of petition and petition were personally served upon the tenant (RPAPL 735). Inasmuch as there was no question regarding the sufficiency of the petition or the service and the tenant failed to answer, respondent was required by RPAPL 732 (3) to render judgment in favor of petitioner.

Article 7 represents the Legislature’s attempt to balance the rights of landlords and tenants to provide for expeditious and fair procedures for the determination of disputes involving the possession of real property (see, Cotignola v Lieber, 34 AD2d 700, 701). The statute attempts to protect a landlord’s right to recover premises occupied by a nonpaying tenant promptly but also to ensure that tenants are not unjustly evicted from their homes. Tenants are protected by multiple notice provisions and by the continuing jurisdiction of the Civil Court over the landlord/tenant disputes. Thus, RPAPL article 7 and the rules of court require the tenant to be notified at least three separate times before the return date: (1) as a predicate to commencement of the proceeding, a demand must be made upon the tenant for payment of rent or possession of the premises (RPAPL 711); (2) the notice of petition may be issued only by an attorney, Judge or clerk of the court and service of the notice of petition and petition must be made personally, by leaving them with a person of suitable age and discretion at the premises or by affixing it to a conspicuous place (RPAPL 731, 735); and (3) upon filing of the notice of petition with proof of service, the clerk promptly mails a postcard informing the tenant of the summary proceeding and the possibility of eviction (22 NYCRR 208.42 [i]). There are also judicial remedies available to tenants. Even after a default, the court may stay the issuance of the warrant of eviction up to 10 days (RPAPL 732 [3]), after issuance of the warrant, the tenant is entitled to at least 72 hours notice before execution (RPAPL 749 [2]), and prior to the execution of the warrant, the court retains jurisdiction to vacate the warrant for good cause shown (RPAPL 749 [3]). Finally, the Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed (see, Solack Estates v Goodman, 78 AD2d 512). These safeguards ensure adequate notice and judicial oversight of tenants’ rights. The statute does not authorize the Judges to fashion additional, individualized protections upsetting the legislative scheme.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered on the ground that the order appealed from is final and thus the certified question is unnecessary.

Ciparick, J.

(dissenting). I respectfully dissent.

The dispositive issue on this appeal is the interpretation of the phrase "the judge shall render judgment” as used in RPAPL 732 (3). The fact that the instant petition was verified by the landlord and proper service was established does not detract from the Judge’s exercise of judgment and discretion to "render” a judgment, a distinct judicial process not subject to mandamus and wholly distinguishable from a command to perform a ministerial act, which can be the subject of a mandamus proceeding (see, Klostermann v Cuomo, 61 NY2d 525, 539). The majority, however, eliminates the judicial process from RPAPL 732 (3) by construing the Judge’s function as the performance of a mere ministerial duty — the entry of judgment.

It has long been the law in this State that to render judgment is judicial and to enter it is ministerial (see, Evarts v Kiehl, 102 NY 296, and discussion in dissenting mem below Matter of Brusco v Braun, 199 AD2d 27, 35-36). CCA 1401 provides that the Civil Court "shall have power to render any judgment that the supreme court might render in a like case” within the limits of its jurisdiction, whereas section 1402 states that a "judgment by default may be entered as provided in CPLR § 3215” (emphasis provided). These provisions, likewise govern judgments of the Housing Part of the Civil Court.

I disagree with the majority’s finding that RPAPL 732 (3) is inconsistent with the provisions of CPLR 3215 rendering section 3215 inapplicable in summary nonpayment proceedings. Rather the provisions of CPLR 3215 should be read to enhance the provisions of RPAPL 732 (3) and should be harmonized rather than read in conflict, unless CPLR 3215 provides otherwise (see, e.g., CPLR 3215 [g] [3] [iii]; [4] [iii] [exclusions of summary nonpayment proceedings from notice provisions]). Thus, absent an express exclusion by the Legislature, CPLR 3215 (a) and (b) are applicable to summary proceedings in the Housing Part.

No purpose would be served by the Judge presiding over the nonpayment proceeding if all that is contemplated by RPAPL 732 (3) is a mechanical act that could be administered by a clerk. Indeed, given what is at risk in a nonpayment proceeding — the tenant’s home — it is incongruous to read RPAPL 732 (3) as inconsistent with CPLR 3215, and in a manner that strips the Judge of all discretion.

Even the Court below admits that a Judge must evaluate the sufficiency of the landlord’s pleadings and that, in certain cases, has the discretion to require and consider additional proof before entering judgment. This leads me to conclude that some discretion was intended to be afforded Civil Court Judges. Neither RPAPL 732 (3) nor CPLR 3215 is intended to serve simply as a rubber stamp once it appears that the court has jurisdiction over the matter and failure to appear is shown. It is only in an action for a sum certain where there is no dispute as to the amount due that the entry of a default judgment is a mere ministerial act. A nonpayment proceeding is at its core an equitable proceeding, only secondarily does it concern the recovery of a sum certain. Thus, some measure of proof of liability is required to satisfy the court of the prima facie validity of the cause of action (see, 4 Weinstein-KornMiller, NY Civ Prac If 3215.03). The measure of such proof is a uniquely judicial function, and in a RPAPL 732 action is often measured by the Judge’s firsthand confirmation of the facts.

In cases like the instant one, the inquest serves this purpose and is consistent with the inherent power of the court and the discretion vested in the Judge. Therefore, respondent Braun’s order directing an inquest comports with RPAPL 732 (3), as well as falling within the inherent power of the court (see, CCA 201, 212, 1401). The court, in calendaring the inquest need not do violence to the expeditious resolution of the matter. This is certainly preferable to subsequent litigation to stay and/or vacate execution of a warrant of eviction.

Certainly, in this proceeding, mandamus does not lie, as it is an extraordinary remedy requiring a showing of a clear right to the relief sought (Spring Realty Co. v New York City Loft Bd., 69 NY2d 657). Petitioner has failed to establish the existence of such a clear right in this case.

Accordingly, I would deny mandamus and reverse the order of the Appellate Division.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith and Levine concur with Judge Simons; Judge Ciparick dissents and votes to reverse in a separate opinion.

Order affirmed, etc.

      . The Appellate Division held that the imposition of attorney’s fees was the proper subject of a hearing in the underlying summary proceeding and the parties raise no argument with respect to that part of its order.

      . The record indicates that the practice of Civil Court Judges sitting in the Housing Part is inconsistent. Some hold inquests and others do not. Thus, the process to which a petition is subjected depends, arbitrarily, on the Judge presiding.


author: Bellacosa, J. Simons, J.

text:
    [645 NE2d 1195, 621 NYS2d 497]
    Bocre Leasing Corporation, Plaintiff, v General Motors Corporation (Allison Gas Turbine Division), Defendant.
    Argued October 18, 1994;
    decided January 10, 1995

      POINTS OF COUNSEL
    Gilman, Pangia & Balsamo (Michael J. Pangia and Barry C. Hansen, of the District of Columbia Bar, admitted pro hac vice, of counsel) and Joseph W. Ryan, Jr., Uniondale, for plaintiff.
    I. New York holds that a manufacturer should be held accountable in tort for foreseeable losses caused to the product itself. (East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858; Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282; Aris Helicopters v Allison Gas Turbine, 932 F2d 825; Alaskan Oil v Central Flying Serv., 975 F2d 553; Mississippi Power & Light Co. v Branson Aircraft Corp., 979 F Supp 871; Kaiser Aluminum & Chem. Corp. v Westinghouse Elec. Corp., 981 F2d 136; Nature’s Share v Kutter Prods., 752 F Supp 371; Trustees of Columbia Univ. v Gwathmey Siegel & Assocs. Architects, 192 AD2d 151; Syracuse Cablesystems v Niagara Mohawk Power Co., 173 AD2d 138; Sommer v Federal Signal Corp., 79 NY2d 540.) II. Bocre is entitled to a remedy for foreseeable losses caused by Allison. (Butchkosky v Enstrom Helicopter Corp., 784 F Supp 882; Sommer v Federal Signal Corp., 79 NY2d 540; Trustees of Columbia Univ. v Gwathmey Siegel & Assocs. Architects, 192 AD2d 151.)

      Katten Muchin & Zavis, New York City (John N. Romans of counsel), for defendant.
    Products liability law should apply only to actions for personal injury and for damage to other property; concerning damage to the product itself, sophisticated commercial parties should be held to the terms of their agreement. (MacPherson v Buick Motor Co., 217 NY 382; Scandinavian Airlines Sys. v United Aircraft Corp., 601 F2d 425; East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858; Rocky Mtn. Helicopters v Bell Helicopter Textron, 24 F3d 125; Hininger v Case Corp., 23 F2d 124; Winchester v Lester’s of Minn., 983 F2d 992; Miller’s Bottled Gas v Borg-Warner Corp., 955 F2d 1043; Miller v United States Steel Corp., 902 F2d 573; Betancourt v Schock Corp., 907 F2d 1251; Laurens Elec. Coop. v Altec Indus., 889 F2d 1323.)
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff, a four-times-removed-downstream purchaser of a helicopter, may not recover from the original engine manufacturer under either strict products liability or negligence theories. Judge Wexler correctly applied governing New York law in dismissing the diversity action brought by plaintiff in the United States District Court for the Eastern District of New York. We conclude that the reasoning of East Riv. S. S. Corp. v Transamerica Delaval (476 US 858) persuasively explains and points to the resolution of the policy determination underlying this dispute and point of law. Plaintiff thus has no cause of action in tort against the remote manufacturer for contractually based economic losses, including to the product itself, occasioned by the failure of the product which was the subject of plaintiff’s arm’s length, negotiated purchase from a subsequent owner.

L

Defendant, in 1972, manufactured a jet engine and sold it to Bell Helicopter, Inc., which installed the engine in one of its helicopters. Several months later, Petroleum Helicopters Inc. acquired the helicopter and operated the aircraft for over 12,000 hours. After 14 years of ownership, in mid-1986, Petroleum Helicopters sold the helicopter to Edwards & Associates, a brokerage firm dealing in used aircraft. Plaintiff purchased the helicopter late in 1986 from Edwards & Associates.

Plaintiff and the seller, Edwards & Associates, negotiated the terms of their purchase agreement. The particularity of their transaction is evinced by several amendments made to the standard language of their agreement, which include provisions for: (1) risk of loss, under which the risk would be shifted to the purchaser after purchaser’s acceptance of the aircraft; (2) warranties of title and against encumbrances; and (3) a condition precedent to purchaser’s acceptance of the aircraft — namely, a satisfactory "test flight, functional test of all equipment, [and] a mechanical inspection.” Additionally, the purchase agreement stated that plaintiff expressly agreed to accept the 14-year-old helicopter in "AS IS” condition, for a price of $214,000. Plaintiff insured the aircraft for $275,000.

Later, plaintiff, which was engaged in the aircraft leasing business, leased the subject helicopter to a number of entities. In May 1989 (almost three years after plaintiffs purchase and 17 years after the manufacture of the engine), the helicopter experienced a power loss, allegedly due to a failed engine compressor blade. Despite the loss of power and the resulting "auto rotation,” the helicopter landed safely, sustaining only minor property damage to the helicopter itself, with no damage whatsoever to persons or other property.

To move the helicopter from the initial "accident” site to its hanger in Farmingdale, the aircraft was loaded by a truck driver onto a truck. En route to Farmingdale, the truck with helicopter atop struck a highway overpass. The helicopter sustained significant damage. Although the driver attempted to correct the loading problems, the efforts proved unsuccessful, and the helicopter smashed into a second overpass, resulting in more property damage to the helicopter.

Subsequent to these incidents, plaintiff received a total of $371,600 — $275,000 from its insurer and $96,600 from the insurer of the truck. Plaintiff, either directly or for subrogation purposes, seeks recovery in tort against the manufacturer in the amount of $450,000 for losses, including the cost of repairs and lost profits.

The sound reasoning provided by the United States Supreme Court in East Riv. supports the bright line rule as compelling in this case, too (see, 476 US 858, 870-875, supra). Both generally and specifically under the facts of this case, cogent policy considerations militate against allowing tort recovery for contractually based economic losses in this kind of commercial dispute (id.).

IL

A purchaser enjoys the contractual control and choice to protect itself with insurance and UCC warranties (see, 10A Couch, Insurance 2d §§ 42:385-42:401, 42:414-42:417, at 496-508, 520-524 [rev ed 1982]; East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 872-873, supra). The particular seller and purchaser are in the best position to allocate risk at the time of their sale and purchase, and this risk allocation is usually manifested in the selling price (id., at 873). Allowing the purchaser to recover in tort for what is, in sum and substance, a commercial contract claim, as is the case here, would grant the purchaser more than the "benefit of [the] bargain” to which the purchaser agreed (see, id., at 873 [stating that "expectation damages available in warranty for purely economic loss give a plaintiff the full benefit of its bargain by compensating for foregone business opportunities”]; see also, Rocky Mtn. Helicopter v Bell Helicopter Tex-tron, 24 F3d 125, 129, 130 [10th Cir] [applying Texas law]). This serves no cognizable tort public policy purpose (see, Scandinavian Airlines Sys. v United Aircraft Corp., 601 F2d 425, 429).

Having foregone protecting itself with UCC warranties, plaintiff should not be permitted to "fall back on tort when it has failed to preserve its * * * remedies” (Rocky Mtn. Helicopter v Bell Helicopter Textron, 24 F3d 125, 130, supra; see also, East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 871-872, 874, supra [stating that "(d)amage to a product itself is most naturally understood as a warranty claim” and that "both the nature of (such an) injury and the resulting damages indicate it is more natural to think of injury to a product itself in terms of warranty”; also stating that injury to a product itself is a loss that can be insured]).

In purchasing a 14-year-old helicopter, plaintiff could have negotiated a UCC-seller’s warranty (see, id., at 872-873). Instead, plaintiff chose to purchase the helicopter in "AS IS” condition. Plaintiff eschewed the very protections which are specifically designed to shelter a purchaser from the particular type of losses at issue in this Federal diversity lawsuit (see, generally, 1 White and Summers, Uniform Commercial Code, at 501-526 [Practitioner’s 3d ed 1988] [suggesting that UCC warranties are designed to protect buyer from the cost of a bad bargain and to provide the buyer with the value of the goods as warranted]). Undoubtedly, the lack of a seller’s or manufacturer’s warranty was reflected in the purchase price (see, East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 873, supra). Notably, plaintiff insured the helicopter in the amount of $275,000, $61,000 greater than the purchase price, further suggesting that plaintiff’s failure to demand a seller’s warranty was proportionately reflected in the selling price.

Because the allocation of risk was fixed by the parties at the time of purchase, plaintiff should be deemed to have assumed that risk of loss. Courts should not later modify plaintiff’s commercial contractual risks by interposing a belated tort benefit or potentiality (see, Hininger v Case Corp., 23 F3d 124, 127 [stating that, in a commercial context, the purchaser should not be allowed " 'to reach back up the production and distribution chain, thereby disrupting the risk allocations that have been worked out in the transactions comprising that chain’ ”]).

Public policy considerations do not mandate a different result and realistically and cogently support the view we propound. Holding manufacturers of dangerous products liable in tort to downstream purchasers who are personally injured by those products is precedentially sound and unassailable. MacPherson v Buick Motor Co. (217 NY 382) marks a jurisprudential breakthrough and common-law development at its best, by extending a manufacturer’s duty of care beyond immediate purchasers. The instant case, however, does not qualify for such treatment, because to recognize tort responsibility in these circumstances would create more problems than it would solve.

Public policy objectives reflected in tort principles are not advanced by allowing downstream purchasers recovery in a case such as this (see, East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 871, supra). The approach urged by plaintiff would unjustifiably crisscross the appropriately discrete lines of tort and contract by allowing a strict products liability claim for all contractually based economic losses in settings involving only unduly dangerous products. Asserting public policy, the partial dissent would allow tort recovery in this case, but only for those damages to the property itself and not for the consequential economic losses. Under either approach, the tendered justification is simply a generalized hope that permitting tort recovery would serve as an incentive for manufacturers to use the safest possible practices. In East Riv., the United States Supreme Court refutes that idealized expectation:

"When a product injures only itself the reasons for imposing a tort duty are weak and those for leaving the party to its contractual remedies are strong.
"The tort concern with safety is reduced when an injury is only to the product itself. When a person is injured, the 'cost of an injury and the loss of time or health may be an overwhelming misfortune,’ and one the person is not prepared to meet. Escola v. Coca Cola Bottling Co., 24 Cal. 2d, at 462, 150 P. 2d, at 441 (opinion concurring in judgment). In contrast, when a product injures itself, the commercial user stands to lose the value of the product, risks the displeasure of its customers * * *, or, * * * experiences increased costs in performing a service. Losses like these can be insured.” (East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 871-872, supra.)

Contrary to the urgings of the partial dissent, damages relating to the safety of persons and property are simply not in issue in this case. These consumer safety concerns are accounted for by holding manufacturers ultimately liable, as— New York law amply does — for those kinds of personal or property injuries and losses which are outside the scope of the contractually based economic losses, attendant to the particular commercial transaction and subject matter (see, Scandinavian Airlines Sys. v United Aircraft Corp., 601 F2d 425, 429, supra). Since any product put into the stream of commerce has the theoretical potential to injure persons and property, the incentive to provide safe products is always present (id.). Plaintiff and the partial dissent would answer the Second Circuit Court of Appeals’ certified question essentially in the affirmative, on the theory that some heightened safety incentive or exhortation, underpinned by broadened tort responsibility imposed by the courts into commercial transactions, will buttress the social policy. Particularly in light of the comparatively astronomic liability associated with personal injury, as contrasted to contractually based economic losses, which are at issue here — whether resulting from injury to the contracted-for property or the consequential losses flowing from that injury — the generalized safety incentive rationale propping up the affirmative response result dissolves.

Allowing plaintiffs recovery in tort for losses of the type at issue here, but only in cases where an allegedly "unduly hazardous” product is the source of the commercial contract and dispute, interjects uncertainty in law and commercial transactions risk allocation by bifurcating the legal universes (East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 870, supra). Such an approach would contradict in a sense the certified question procedure, which is designed and employed to provide certainty to and settlement of State law issues (Court of Appeals Rules of Practice [22 NYCRR] § 500.17; see, Banque Worms v Bankamerica Intl., 928 F2d 538, 540-541). A special niche would be unduly carved for such purchasers, allowing them to forego traditional commercial protections and instead to rely on inappropriate, noncommensurate tort lawsuits down the transactional road. For "inherently dangerous” products, purchasers would be granted an incentive to roll the dice, hope nothing happens, and initially reap the financial benefits of a low purchase price or low (or no) insurance premiums. If something untoward were to happen to the product itself, however far down the road, ultimate purchasers of unduly hazardous products could still reach all the way back through however-many intervening transactions to sue the original manufacturers in tort. This boomerang effect is not prudent common-law development and policy.

Additionally, the affirmative response to the certified question would create an anomaly which would disserve the public interest. A natural, undesirable result would be that manufacturers would find it difficult "to take into account the expectations of persons downstream who may encounter [their] product^]” (East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 874, supra). The case at hand, with the double overpass crashes, is a dramatic illustration. Here, the manufacturer would be held liable to (1) a plaintiff who is a four-times-removed purchaser, for (2) damages with respect to a product that is 17 years old, and (3) for damages virtually entirely contractual in nature and really attributable to other parties. Such a rule would transform manufacturers into insurers, only under New York law, with unlimited tort liability, which they could neither reasonably predict nor properly insure against (id., at 874; contra, Emerson G.M. Diesel v Alaskan Enter., 732 F2d 1468, 1474, and n 8 [9th Cir]).

The consuming public ultimately suffers when manufacturers are prevented from properly managing and reliably predicting the consequences of their business transactions. In essence, all consumers would subsidize or "pay premiums” for purchasers of assertedly "unduly dangerous” products (see, Casa Clara Condominium Assn. v Toppino & Sons, 620 So 2d 1244, 1247 [Fla] [questioning whether, in cases where only economic losses are involved, the " 'consuming public as a whole should bear the cost of economic losses sustained by those who failed to bargain for adequate contract remedies’ ”]). The public at large would receive no real benefit, since tort liability (personal injury and other property damage) is already generally present (see, Scandinavian Airlines Sys. v United Aircraft Corp., 601 F2d 425, 429, supra). That long-standing liability exposure reasonably serves as a more than adequate social policy disincentive against manufacturers floating unsafe products into the stream of commerce (id.).

Additionally and contrary to the partial dissent’s view, we can discern no compelling rationale to distinguish between different types of typical contractually related losses and devise disparate rules of recovery. Property damage to the helicopter itself and lost profits (lost rentals and air time) are classic contractual-type economic damages, and plaintiff could have protected itself from both types of losses via UCC warranties and insurance. Thus, the rationale that would preclude recovery for one should also preclude recovery for the other. Moreover, if the partial dissent’s deterrence rationale is to be accepted, then, again, there is no basis to distinguish between these types of economic losses and have a different recovery rule for each. Under the dissent’s rationale, the higher the potential for liability, the greater will be the deterrence effect; thus, that deterrence rationale supports treating the two types of contractual economic harms identically for purposes of the certified question. Consequently, we reject creating a bifurcated rule of recovery within the contractual loss universe. Given the reality of already existing, ample deterrents to manufacturers injecting unsafe products into the commerce stream, and the resultant lack of a substantive public policy purpose to be furthered by imposing additional tort liability in these circumstances, no tort recovery can be had against the manufacturer for contractually based economic loss, whether due to injury to the product itself or consequential losses flowing therefrom.

Finally, our previous rulings in Schiavone Constr. Co. v Elgood Mayo Corp. (56 NY2d 667, revg 81 AD2d 221 [adopting dissent]) and Bellevue S. Assocs. v HRH Constr. Corp. (78 NY2d 282) do not counterindicate the adoption here of the East Riv. approach. Because of the claims at issue, which did not involve unduly hazardous products, we found it "unnecessary to accept or reject [the] invitation to adopt East River as a matter of State law” (Bellevue S. Assocs. v HRH Constr. Corp., 78 NY2d 282, 293, supra). We expressly reserved there the question we squarely face here, as a result of our accepting the certification request from the Second Circuit Court of Appeals.

III.

In sum, New York should join the majority of jurisdictions that have recognized the cogency of the East Riv. analysis and approach, at least in situations such as are presented here. New York would thus be in the mainstream, where it belongs in such matters, with respect to the regulation and resolution of controversies of this kind (see, e.g., Rocky Mtn. Helicopters v Bell Helicopter Textron, 24 F3d 125, 130, and n 2 [10th Cir], supra; Hininger v Case Corp., 23 F3d 124, 126-127 [5th Cir] [applying Texas law], reh denied 32 F3d 568, supra; Winchester v Lester’s of Minn., 983 F2d 992, 996 [10th Cir] [applying Kansas law]; Miller’s Bottled Gas v Borg-Warner Corp., 955 F2d 1043, 1049-1050 [6th Cir] [applying Kentucky law]; Casa Clara Condominium Assn. v Toppino & Sons, 620 So 2d 1244, 1246, and n 2, 1247-1248 [Fla], supra; Aloe Coal Co. v Clark Equip. Co., 816 F2d 110, 117).

Tort recovery in strict products liability and negligence against a manufacturer should not be available to a downstream purchaser where the claimed losses flow from damage to the property that is the subject of the contract. Transforming manufacturers into insurers, with the empty promise that they can guarantee perpetual and total public safety, by making them liable in tort for all commercial setbacks and adversities is not prudent or sound tort public policy. In such instances, no directly related or commensurate public interest is served or protected by holding manufacturers liable. Tort law should not be bent so far out of its traditional progressive path and discipline by allowing tort lawsuits where the claims at issue are, fundamentally and in all relevant respects, essentially contractual, product-failure controversies. Tort law is not the answer for this kind of loss of commercial bargain.

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

Simons, J.

(concurring in part and dissenting in part). The majority hold that the plaintiff has no remedy in this action because the damages are only "economic” and in that circumstance the risk of loss is best allocated between the parties by contract. In fact, there are two types of damages sought here: property damages for injury to the helicopter itself and the consequential loss of income and incidental expenses resulting from the destruction of the helicopter. I would allow a tort recovery for the former but not the latter.

As we have recognized, the fundamental distinction between tort and contract arises from " 'the nature of the interests protected. Tort actions are created to protect the interest in freedom from various kinds of harm. The duties of conduct which give rise to them are imposed by the law, and are based primarily upon social policy, and not necessarily upon the will or intention of the parties’ ” (Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 401 [quoting, Prosser, Torts § 92, at 613 (4th ed)]). The majority, focusing exclusively upon plaintiff’s apparent choice not to protect itself by contract provisions, repudiates any consideration of the duty of the manufacturer. It would agree with the Supreme Court that in commercial settings the manufacturer’s ability "easily to structure their business behavior” is the paramount concern (East Riv. S. S. Corp. v Transamerica Delaval, 476 US 858, 870). But this Court in a long line of decisions has resolved the question of public policy in favor of imposing a tort duty of care on manufacturers to protect consumers from dangerous and defective products (see, e.g., Thomas v Winchester, 6 NY 397; Devlin v Smith, 89 NY 470; MacPherson v Buick Motor Co., 217 NY 382; Codling v Paglia, 32 NY2d 330; Micallef v Miehle Co., 39 NY2d 376). Our law holds that if a manufacturer distributes a product which is unreasonably dangerous, one injured as a result of using the product may maintain an action in strict products liability. The duty of care is properly placed on the manufacturer, we have said, because in today’s society the manufacturer is in the best position to recognize and cure defects in its product which may cause injury and because it is in the best position to spread the cost for its failure to remedy such risks (see, Codling v Paglia, 32 NY2d 330, 341, supra).

Thus, a legal duty was imposed on defendant to avoid distributing a dangerously defective product at the time the product left its hands. If defendant breached that duty and plaintiff’s pilot was subsequently injured or the property of others damaged, defendant would be answerable in tort under accepted law. There is no good reason why tort recovery should not be similarly permitted when the defective product injures only itself. The damage to the helicopter is a direct and foreseeable harm proximately caused by the manufacturer’s breach of duty to market a product that was not dangerously defective and the manufacturer should not be cloaked with immunity merely because the resultant damage was fortuitously limited to the helicopter itself (see, Dudley Constr. v Drott Mfg. Co., 66 AD2d 368 [Hancock, Jr., J.]; Krzys v American Honda Motor Co., 124 AD2d 947, 948; Trustees of Columbia Univ. v Mitchell/Giurgola Assocs., 109 AD2d 449, 455; see also, Star Furniture Co. v Pulaski Furniture Co., 171 W Va 79, 297 SE2d 854; Russell v Ford Motor Co., 281 Ore 587, 575 P2d 1383; Cloud v Kit Mfg. Co., 563 P2d 248 [Alaska]; Vulcan Materials Co. v Driltech, Inc., 251 Ga 383, 306 SE2d 253). Whatever property is injured by the accident, the damage resulted from the same tortious conduct by the manufacturer in supplying a product that was dangerous. The well-developed considerations of public policy favoring recovery in the case of damage to property other than the product are no more compelling than those favoring recovery of resultant damages to the helicopter itself. One purpose of strict liability in tort is "to prevent a manufacturer from defining the scope of his responsibility for harm caused by his products” (Seely v White Motor Co., 63 Cal 2d 9, 17, 403 P2d 145, 150), and to reassign the risk of defective manufacture to the consumer for some property damages but not others undermines settled New York policy supporting the law of products liability.

I agree with the majority, however, that consequential damages for lost profits and incidental expenses suffered by plaintiff are not recoverable in tort. The distinction between property damage and economic injuries resulting from property damage is not arbitrary but recognizes the conceptual differences in tort and contract remedies and the various risks and obligations undertaken between a manufacturer and a consumer. Lost profits and other similar damages, unlike property damage, are properly cognizable as contract or warranty damages for which the consumer can bargain. The manufacturer should not be subjected to liability for the unlimited, unpredictable, and unforeseeable economic damages that may occur as a result of the particular use of the product by an attenuated commercial consumer (see, East Riv., 476 US, at 874, supra). On the other hand, the manufacturer may be held liable for the foreseeable damage to property resulting from a dangerous defect in the product. Former Chief Justice Traynor explained the distinction in this way:

"[the manufacturer] can appropriately be held liable for physical injuries caused by defects by requiring his goods to match a standard of safety defined in terms of conditions that create unreasonable risks of harm. He cannot be held for the level of performance of his products in the consumer’s business unless he agrees that the product was designed to meet the consumer’s demands. A consumer should not be charged at the will of the manufacturer with bearing the risk of physical injury when he buys a product on the market. He can, however, be fairly charged with the risk that the product will not match his economic expectations unless the manufacturer agrees that it will” (Seely v White Motor Co., 63 Cal 2d 9, 18, 403 P2d 145, 151, supra).

Finally, the majority’s decision appears to be driven by a number of irrelevant concerns. First, it observes that the consumer is fully capable of insuring against the loss. Presumably, all plaintiffs can insure against loss, whether resulting from injury to person or property, but that has no bearing on tort remedies and to hold that it does eviscerates tort law. Nor is it significant that this is a subrogation claim. Second, neither the passage of time, the relationship of the parties or the subsequent, additional damage to the helicopter effect the existence of the manufacturer’s duty and plaintiff’s right to recover for the property damage caused by the breach of that duty. After reading the majority opinion, however, one might wonder if the result would be different if plaintiff had purchased the helicopter directly from defendant shortly after its manufacture and a few days before the accident. Finally, the fact that plaintiff purchased the helicopter in "as is” condition does not alter the duty imposed on the manufacturer. That provision may limit the scope of the manufacturer’s or seller’s warranties, but it cannot diminish the manufacturer’s duty to refrain from injecting dangerously defective products into the stream of commerce.

Accordingly, I would hold that plaintiff may recover in tort for damages to the helicopter itself.

Chief Judge Kaye and Judges Titone, Smith, Levine and Ciparick concur with Judge Bellacosa; Judge Simons dissents in part in a separate opinion.

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


author: Levine, J. Bellacosa, J.

text:
    [646 NE2d 438, 622 NYS2d 217]
    In the Matter of Louis Harris and Associates, Inc., Appellant, v Dennis deLeon, as Commissioner of the New York City Commission on Human Rights, et al., Respondents.
    Argued October 19, 1994;
    decided December 13, 1994

      POINTS OF COUNSEL

      Nixon, Hargrave, Devans & Doyle, Garden City (Thomas G. Dignan, Karen B. Rabinowitz and David P. Ford of counsel), for appellant.
    I. The Commission’s seven-year delay in processing the complaint has prejudiced Harris as a matter of law and as a matter of fact. (Matter of Syquia v Board of Educ., 80 NY2d 531; Board of Educ. v State Div. of Human Rights, 53 AD2d 1043, 42 NY2d 862; Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816; State Div. of Human Rights v Bethlehem Steel Corp., 86 AD2d 977.) II. The Commission incorrectly held that the burden of proof to show that Leventhal could not be reasonably accommodated is on Harris. (Matter of Reiniger v New York State Div. of Lottery, 105 AD2d 902; Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937; Russello v United States, 464 US 16; Prewitt v United States Postal Serv., 662 F2d 292; Matter of Jones v Berman, 37 NY2d 42; Ohio Pub. Empls. Retirement Sys. v Betts, 492 US 158.)

      Paul A. Crotty, Corporation Counsel of New York City (Alan G. Krams and Kristin M. Helmers of counsel), for respondents. I.
    The Court below correctly rejected petitioner’s claim that the Commission’s determination should be set aside based solely on administrative delay, without regard to whether petitioner was prejudiced by the passage of time. (Weiss v Mayflower Doughnut Corp., 1 NY2d 310; Matter of Barabash, 31 NY2d 76; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 476 US 1115; Matter of Elmira Bus. Inst. v New York State Dept. of Educ., 116 AD2d 133, 70 NY2d 758; Matter of Syquia v Board of Educ., 80 NY2d 531; Board of Educ. v State Div. of Human Rights, 53 AD2d 1043, 42 NY2d 862; Matter of Rochester-Monroe County Ch. v Kramarsky, 73 AD2d 841; Equal Empl. Opportunity Commn. v Great Atl. & Pac. Tea Co., 735 F2d 69, 469 US 925.) II. The Commission acted properly when it imposed the burden of proof on petitioner to establish that Leventhal could not have been reasonably accomodated. (Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464; Concrete Pipe & Prods. v Construction Laborers Pension Trust, 508 US —, 113 S Ct 2264; Noseworthy v City of New York, 298 NY 76; United States v New York, New Haven & Hartford R. R. Co., 355 US 253; National Labor Relations Bd. v Mastro Plastics Corp., 354 F2d 170, 384 US 972; Gilbert v Frank, 949 F2d 637; Wood v Omaha School Dist., 985 F2d 437; Prewitt v United States Postal Serv., 662 F2d 292; Hall v United States Postal Serv., 857 F2d 1073; Jasany v United States Postal Serv., 755 F2d 1244.)
   OPINION OF THE COURT

Levine, J.

On October 17, 1984, respondent Jay Leventhal filed a complaint with the New York City Commission on Human Rights alleging that petitioner Louis Harris and Associates, Inc. (Harris) and its personnel director John Holden had discriminated against him on the basis of his blindness in violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.). Leventhal’s complaint arose out of his interview with Harris in August 1984 for a part-time position to conduct public opinion telephone polls during the 1984 presidential race. Although Leventhal had experience in conducting telephone interviews and in writing, coding and editing opinion surveys, and notwithstanding Leventhal’s suggestions at the interview of possible accommodations that Harris could make to enable him to perform the tasks required, approximately four days after the interview Holden informed Leventhal that he could not be offered the position because Harris could not make reasonable accommodations for his disability.

After Harris filed a response to Leventhal’s complaint on or about November 14, 1984, Harris heard nothing from the Commission until February 1988 when it received a letter from the Commission’s Law Enforcement Bureau (Bureau) stating that the investigative stage of the proceeding was substantially complete. In May 1989, Harris was served with a subpoena requesting production of documents and that Holden be produced for questioning. Harris produced the documents and upon informing the Bureau that it no longer employed Holden, the Bureau subpoenaed Holden and ultimately deposed him on February 2,1990.

On September 18, 1990, almost six years after Leventhal’s complaint was initially filed, the Bureau issued a notice of probable cause determination and referred the complaint to the Commission Hearings Division for an evidentiary hearing, which was conducted in March 1991. In a recommended decision and order dated May 23, 1991, the Administrative Law Judge (ALJ) held that Harris had unlawfully discriminated against Leventhal, finding, inter alla, that Harris had failed to meet its burden of showing that it was unable to reasonably accommodate Leventhal or that Leventhal’s proposals for accommodation would impose an undue hardship. The ALJ, however, dismissed the complaint as against Holden on the ground that the record demonstrated that he personally had made a reasonable and good-faith effort to accommodate Leventhal. By decision and order dated December 10, 1991 — a full seven years after the filing of the complaint — the Commission adopted the ALJ’s recommended decision and order in all but de minimis part.

Harris commenced this special proceeding pursuant to section 8-123 of the Administrative Code seeking to annul the Commission’s determination arguing, inter alla, that the Commission’s excessive delay in investigating the complaint prejudiced it as a matter of law and fact, and that the ALJ erred in placing the burden on Harris to prove that it was unable to reasonably accommodate Leventhal. Supreme Court dismissed the petition. The Appellate Division affirmed (199 AD2d 78), holding that Harris had failed to establish substantial prejudice due to the delay, and that the burden of proof regarding reasonable accommodation was properly placed on the employer. This Court granted Harris leave to appeal, and we now affirm.

Harris initially argues on this appeal that the Commission’s excessive delay in processing Leventhal’s complaint— almost six years before a probable cause determination was made and over seven years before a final determination was rendered — should be held to have prejudiced it as a matter of law, mandating dismissal of the complaint without any inquiry into actual prejudice resulting therefrom. We, however, have previously rejected the claim that lapse of time in rendering an administrative determination can, standing alone, constitute prejudice as a matter of law (see, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 177-178, cert denied 476 US 1115). We have reaffirmed that proposition in our decision today in Matter of Corning Glass Works v Ovsanik (84 NY2d 619 [decided today]; see also, Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816, 818 ["While the length of the delay in processing a complaint is certainly relevant to the determination whether a particular respondent has suffered substantial prejudice from that delay, the mere passage of time normally will not constitute substantial prejudice in the absence of some showing of actual injury to the respondent”]).

Harris directs the Court’s attention to Administrative Code former § Bl-8.0 (2), applicable at the time of the filing of the instant complaint, which provided that "[a]fter the filing of any complaint, the commission shall make prompt investigation in connection therewith”, and argues that the Commissian’s lack of compliance with this statutory directive is sufficient to justify judicial vacatur of the administrative determination. Its reliance on this provision is unavailing, however. This Court has previously construed identical language pertaining to discrimination complaints under the State Human Rights Law (see, Executive Law §297 [2] [a] ["After the filing of any complaint, the division shall * * * make prompt investigation in connection therewith”]) as being directory only, noncompliance with which being insufficient to terminate the agency’s jurisdiction absent a showing of substantial prejudice (Matter of Sarkisian Bros. v State Div. of Human Rights, supra, at 817-818; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371, 380-381; see also, Matter of Cortlandt Nursing Home v Axelrod, supra, at 177 [rejecting similar claim premised upon State Administrative Procedure Act § 301 (1) directing that parties in adjudicatory proceedings be afforded a hearing "within reasonable time”]).

We find nothing in the statutory language of Administrative Code former § Bl-8.0 (2), and petitioner has pointed to no legislative history, which would indicate that the directive was intended to be anything other than "for the benefit of complainants and others benefited and [thus] cannot be held to shelter those charged with violation of the statute” without a showing of substantial prejudice (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., supra, at 380-381; see, Matter of Syquia v Board of Educ., 80 NY2d 531, 535-536; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 172).

In Matter of Cortlandt Nursing Home v Axelrod (supra), we delineated the factors, pertinent here, to be weighed in assessing the reasonableness of administrative delay:

"(1) the nature of the private interest allegedly compromised by the delay; (2) the actual prejudice to the private party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by governmental regulation” (id., at 178).

The Cortlandt factors do not weigh in Harris’ favor. The statutorily defined public policy advanced by New York City’s antidiscrimination laws is one of utmost importance, not only to the affected parties but also to all persons and institutions, and the public interest in redressing discriminatory acts is one of great significance (see, Administrative Code § 8-101 ["there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants”]). While the Commission acknowledges that Harris was not responsible in any manner for the administrative delay (see, Matter of Cortlandt Nursing Home v Axelrod, supra, at 182), there is also no evidence here of "repetitive, purposeless and oppressive” action against Harris on the part of the Commission (id., at 181), and "[a] court should be extremely reluctant to hold agency inaction unreasonable where the delay is attributable to a lack of resources” (id., at 181). The only private interest identified by Harris as having been impacted by the delay here is its ability to mount an adequate defense to the discrimination charges. That interest has only been compromised, however, to the extent that Harris has suffered substantial, actual prejudice generated by the protracted delay, the remaining, "critical” (id., at 180) Cortlandt factor to be considered.

We conclude that substantial prejudice to Harris has not been established on this record. Harris’ claim of actual prejudice focuses on its witness Holden’s inability at the hearing to recall certain details of his efforts to investigate means of accommodating Leventhal, including the names of experts with whom he had consulted, as well as the substance of those conversations and others which transpired with Harris personnel. Significantly, though, the Commission’s ultimate finding of discrimination on the part of Harris was not based at all on the inadequacy of Holden’s efforts at pursuing means of accommodation. Rather, it was premised on the conduct of Harris’ former vice-president for operations Stacpole, Harris’ employee with the authority to order that accommodations be made for Leventhal, whom the Commission found made a hasty and unsubstantiated decision not to hire Leventhal without considering or pursuing any accommodation options. The record reflects that Holden, after his consultations, met with Stacpole and outlined and recommended one or more of the options for accommodation which Leventhal had suggested in his interview. Thus, it is entirely speculative for Harris to suggest that the experts with whom Holden consulted before recommending such accommodation would have supported Harris’ refusal to make any accommodations for Leventhal. Further, Stacpole was not called as a witness by Harris and there was no showing of her unavailability to testify at the hearing. Thus, similarly, there is no support in the record for Harris to claim that she relied on the same experts in refusing to make any accommodations for Leventhal’s disability.

Moreover, Harris’ claim of prejudice due to Holden’s lack of memory is undermined by the fact that it was put on notice of the substance of Leventhal’s allegations when it received the complaint from the Commission shortly after its decision not to hire Leventhal, and could have taken diligent steps to preserve evidence and testimony (see, Occidental Life Ins. Co. v Equal Empl. Opportunity Commn., 432 US 355, 372; Matter of Elmira Bus. Inst. v New York State Dept. of Educ., 116 AD2d 133,137, affd for reasons stated below 70 NY2d 758). We thus conclude that insufficient proof of substantial prejudice due to the delay exists on this record to justify vacatur of the administrative determination.

In so holding, we must express our serious concern over the inordinate delay which transpired in the administrative process in this matter. Whether caused by inadequate resources or otherwise, the lack of repose in human affairs and disputes affecting the public interest as in this case occasioned by such lengthy delays in the administrative process is disquieting, and should be a matter of grave concern to all branches of government as it may well have become a common phenomenon. Justice long delayed cannot only impair the actual fairness, but also the public perception of the evenhandedness of administrative adjudications. When faced with such excessive delays in the administrative process as occurred in this case, courts should closely scrutinize the record for substantial prejudice to a party due to the delay. Having found no such prejudice here, however, we must decline to invalidate the agency’s determination.

Harris’ final contention on this appeal is that the Commission erred when it placed the burden on Harris to show that it was unable to reasonably accommodate Leventhal or that Leventhal’s proposals for accommodation would impose an undue hardship. At the time pertinent to this complaint, the Administrative Code provided that it was unlawful to refuse to hire an "otherwise qualified person” because of the person’s disability (Administrative Code former §§ Bl-7.1, Bl-7.0 [1] [a]), an "otherwise qualified person” being defined as "a handicapped person, who, with reasonable accommodation can satisfy the essential requisites of the job or benefit in question” (Administrative Code former § Bl-2.0 [16] [e]). The statute was silent as to the placement of the burden on the issue of reasonable accommodation.

Under such circumstances, the practical construction of the statute by the agency charged with implementing it, if not unreasonable, is entitled to deference by the courts (see, Matter of Lezette v Board of Educ., 35 NY2d 272, 281). The reasonableness of the Commission’s interpretation here in allocating the burden to the employer to prove undue hardship is supported by its accord with the prevailing allocation of the ultimate burden on this issue under analogous Federal antidiscrimination laws (see, e.g., Wood v Omaha School Dist., 985 F2d 437, 439 [8th Cir]; Gilbert v Frank, 949 F2d 637, 642 [2d Cir]; Prewitt v United States Postal Serv., 662 F2d 292, 310 [5th Cir]). Moreover, it is clearly rational to place the ultimate burden of proving undue hardship on the employer who is in the better position to assess the feasibility of possible accommodations and to know how they will impact its business operations (see, Gilbert v Frank, 949 F2d, at 642, supra).

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

Bellacosa, J.

(concurring): While I join in Judge Levine’s opinion for the Court, I write separately to emphasize my concerns with the rule that judicially adds a "substantial prejudice” component to the resolution of delay aspects in this type case, apparently no matter the length of the official, administrative delay (see, e.g., Matter of Syquia v Board of Educ., 80 NY2d 531, 535; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 180, cert denied 476 US 1115; Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816, 817). The state of the record and the governing law is such that there is no basis for the courts to reverse or substitute the pertinent administrative agency findings with respect to the determination of unlawful discrimination or the delay.

This New York City case and its governmental twin at the State Division of Human Rights level (Matter of Coming Glass Works v Ovsanik, 84 NY2d 619 [decided today] [involving the application of the time schedules in Executive Law § 297]) merit prompt legislative attention. Prompt, efficient and fair adjudication of claims appears to have been lost in the precedents that characterize the timeliness feature as some merely "directory” technical rule. For all practical purposes, the word "prompt” in Administrative Code of the City of New York former § Bl-8.0 (2) has been drained of all functional meaning and the purport of its inclusion in the statute has been set aside as essentially irrelevant.

This is not prudent methodology in statutory interpretation since the Court’s responsibility includes providing meaning to all words in statutes (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 231). While I agree that the instant cases concern matters of "utmost importance”, other overarching jurisprudential values are at stake as well. The very enactment of the word "prompt” proclaims the legislative judgment that only claims that can be fairly and legitimately tested and resolved ought to fall within the administrative jurisdictional ambit. The fact that no Statute of Limitations as such has been legislated in these matters, should not mean that reasonable and fair repose to controversies should be foregone. That value and goal serves the best interests of parties and the common good of society for the proper administration of this executive agency adjudication segment of the justice system.

Apparently, by all indications, the magnitude of this problem and the number of such very troublesome cases are not rare. Our previous cases exposed the tip of the iceberg (see, Matter of Cortlandt Nursing Home v Axelrod, supra; Matter of Geary v Commissioner of Motor Vehicles, 59 NY2d 950, 952; Board of Educ. v State Div. of Human Rights, 42 NY2d 862). The instant cases show how much more deeply the problem lies. Indeed, the deplorable situation was forthrightly acknowledged on oral argument in each case, respectively by the New York City Assistant Corporation Counsel and the New York State Assistant Attorney-General (see also, Kilborn, Backlog of Cases Overwhelms Federal Jobs-Bias Commission, New York Times, Nov. 26, 1994, at 1). Both government lawyers acknowledged that the resources for their City and State agencies are "shrinking”, their jurisdiction and case loads are “growing, growing, growing” and the expanding delay problems "will not get better” and "will happen again”. These frank utterances, stated in lawyerly euphemisms, demonstrate that the problem is systemic and growing worse.

Claimants and employers with legitimate claims or defenses and the common weal are ill served when the courts, even with limited administrative agency purview power, countenance this justice delayed-justice denied syndrome, especially in this special universe of cases and controversies. Considerations of fairness, prudence and social tranquility require that a time should come after which any entity charged with wrongdoing should not be subject to inquiry and punishment. One reason is that the adjudication system in such circumstances cannot reasonably assure that greater miscarriages of justice will not be generated. Actually and perceptually, the quality of justice and fragile respect for its administration suffers seriously when lengthy delays are tolerated. Without legislative reform, this fundamental goal of due process and fairness, as applied in these statutory procedural delay cases, is lost not only as to those accused of discriminatory conduct, but also as to claimants who suffer discrimination and the commitment to redress harms against them. In the present state of the law, everyone loses.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur with Judge Levine; Judge Bellacosa concurs in a separate opinion in which Judge Titone also concurs.

Order affirmed, with costs.

      . Administrative Code § 8-109 (g), applicable to complaints filed on or after September 1, 1991, now provides: "[T]he commission shall commence proceedings with respect to the complaint, complete the investigation of the allegations of the complaint and make a final disposition of the complaint promptly and within the time periods to be prescribed by rule of the commission. If the commission is unable to comply with the time periods specified for completing its investigation and for final disposition of the complaint, it shall notify the complainant, respondent, and any necessary party in writing of the reasons for not doing so.”

        . In 1991 the Administrative Code was amended to explicitly place the burden of proving inability to make reasonable accommodation on the employer, providing: "The term 'reasonable accommodation’ means such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business. The covered entity shall have the burden of proving undue hardship” (Administrative Code § 8-102 [18]).