text:
    [634 NE2d 183, 611 NYS2d 811]
    Jane Hope et al., on Behalf of Themselves and All Others Similarly Situated, et al., Respondents, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants. Alma Poindexter, Intervenor-Respondent.
    Argued January 13, 1994;
    decided May 5, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General, New York City (Judy E. Nathan, Jerry Boone and Howard L. Zwickel of counsel), for appellants.
    I. Prenatal Care Assistance Program (PCAP) satisfies the requirements of the New York State Constitution. (Planned Parenthood of Southeastern Pa. v Casey, 505 US —, 112 S Ct 2791; Harris v McRae, 448 US 297; Maher v Roe, 432 US 464; Cooper v Morin, 49 NY2d 69, cert denied sub nom. Lombard v Cooper, 446 US 984; Planned Parenthood Fedn. v Agency for Intl. Dev., 915 F2d 59; Klostermann v Cuomo, 61 NY2d 525; Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486; D’Angelo v Cole, 67 NY2d 65; Health Ins. Assn. v Hartnett, 44 NY2d 302; Hymowitz v Lilly & Co., 73 NY2d 487, 493 US 944.) II. The order, if otherwise affirmed, should be modified to provide the Legislature with a reasonable time to address the defect in the statute. (People v Liberta, 64 NY2d 152; Klostermann v Cuomo, 61 NY2d 525; State Div. of Human Rights [Geraci] v New York State Dept. of Correctional Servs., 90 AD2d 51.)

      Catherine Weiss, New York City, Donna Lieberman, Yueh-ru Chu, Robert M. Levy, Louise Melling, Cleary, Gottlieb, Steen & Hamilton (Deborah M. Buell, Donna Costa, Ayala Deutsch, Stephanie Cotsirilos, Anne H. Erskine and Marcia L. Narine of counsel), Janet Benshoof, Catherine Albisa and Hollyer, Brady, Smith, Troxell, Barrett, Rockett, Hines & Mone (Laurie R. Rockett of counsel), for respondents. I.
    The court below properly held that the New York Constitution provides broad and independent protection for reproductive choice as a fundamental right. (Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; People v Onofre, 51 NY2d 476, 451 US 987; Cooper v Morin, 49 NY2d 69, cert denied sub nom. Lombard v Cooper, 446 US 984; Rivers v Katz, 67 NY2d 485; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Thornburgh v American Coll, of Obstetricians & Gynecologists, 476 US 747; Planned Parenthood of Southeastern Pa. v Casey, 505 US —, 112 S Ct 2791; Matter of Klein, 145 AD2d 145, 73 NY2d 705; Steinhoff v Steinhoff, 140 Misc 2d 397; Matter of Mary P., 111 Misc 2d 532.) II. The court below properly held that the exclusion of medically necessary abortions from coverage under chapter 584 violates the fundamental State constitutional right of reproductive choice. (Matter of City of New York v Wyman, 30 NY2d 537; People ex rel. Arcara v Cloud Books, 65 NY2d 324; Humphrey v State of New York, 60 NY2d 742; Zuckerman v City of New York, 49 NY2d 557; Indig v Finkelstein, 23 NY2d 728; Sable Communications of Cal. v Federal Communications Commn., 492 US 115; Rivers v Katz, 67 NY2d 485; Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486; Williamson v Lee Opt. Co., 348 US 483.) III. The court below properly held that the exclusion of medically necessary abortions from coverage under chapter 584 violates the Equal Protection Clause of the New York Constitution. (Phelan v City of Buffalo, 54 AD2d 262; Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981; Golden v Clark, 76 NY2d 618.) IV. The court below properly held that the exclusion of medically necessary abortions from coverage under chapter 584 violates article XVII of the New York Constitution. (Tucker v Toia, 43 NY2d 1; Matter of Jones v Blum, 101 AD2d 330, 64 NY2d 918; Matter of Bernstein v Toia, 43 NY2d 437; Co-Pilot Enters, v Suffolk County Dept. of Health, 38 Misc 2d 894; Matter of Conlon v Marshall, 185 Misc 638.) V. The court below properly held that extension is the appropriate remedy for chapter 584’s underinclusiveness. (People v Liberta, 64 NY2d 152; Matter of Jessie C., 164 AD2d 731, 78 NY2d 907; Soto-Lopez v New York City Civ. Serv. Commn., 755 F2d 266, affd sub nom. Attorney-Gen. of N. Y. v Soto-Lopez, 476 US 898; People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, cert denied sub nom. State Tax Commr. v People ex rel. Alpha Portland Cement Co., 256 US 702; People v Mancuso, 255 NY 463; Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191; Doyle v Suffolk County, 786 F2d 523, 479 US 825; United States v Jackson, 390 US 570; Alliance of Am. Insurers v Chu, 77 NY2d 573; Flushing Natl. Bank v Municipal Assistance Corp., 40 NY2d 731.)

      Michael P. Tierney, New York City, for intervenor-respondent.
    I. No one has a greater stake in the outcome of this appeal than Ms. Alma Poindexter. (Matter of Ginsberg v Lomenzo, 23 NY2d 94; Loretto v Teleprompter Manhattan CATV Corp., 53 NY2d 124; Perl v Aspromonte Realty Corp., 143 AD2d 824; Matter of Village of Spring Val. v Village of Spring Val. Hous. Auth., 33 AD2d 1037; Matter of Norstar Apts. v Town of Clay, 112 AD2d 750; Vantage Petroleum v Board of Assessment Review, 61 NY2d 695; Matter of Dumbleton v Reed, 40 NY2d 586; Harrison v Bain Estates, 2 Misc 2d 52, 2 AD2d 670.) II. There is no fundamental right to abortion under the New York State Constitution. (Matter of City of New York v Wyman, 30 NY2d 537; Byrn v New York City Health & Hosps. Corp., 31 NY2d 194; Matter of Gloria C. v

      William C., 124 Misc 2d 313; Khan v Hip Hosp., 127 Misc 2d 1063; Planned Parenthood of Southeastern Pa. v Casey, 505 US —, 112 S Ct 2791; Webster v Reproductive Health Servs., 492 US 490; Harris v McRae, 448 US 297, 917; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Barie v Lavine, 40 NY2d 565.) III. The lower courts exceeded their power in purporting to cure an alleged constitutional defect in PCAP by rewriting the act to provide funding for abortions. (People v Dietze, 75 NY2d 47; Matter of Smiley, 36 NY2d 433; Bright Homes v Wright, 8 NY2d 157; People v Liberta, 64 NY2d 152, 471 US 1020; People v Strassner, 299 NY 325; Matter of Tormey v La Guardia, 278 NY 450; Childs v Childs, 69 AD2d 406, 446 US 901.) IV. The decisions of the courts below directing funding of abortions under PCAP are barred by the Supremacy Clause of the United States Constitution. (Lewis v Grinker, 794 F Supp 1193, 965 F2d 1206; International Paper Co. v Ouellette, 479 US 481; Environmental Encapsulating Corp. v New York City, 855 F2d 48.)

      John J. O’Brien, Menands, for New York State Right to Life Committee, Inc., amicus curiae.

    I. The Due Process Clause of the New York State Constitution does not require the State to fund abortions. (Maher v Roe, 432 US 464; Harris v McRae, 448 US 297; State of New York v Bowen, 690 F Supp 1261, affd sub nom. State of New York v Sullivan, 889 F2d 401; Planned Parenthood Fedn. v Agency for Intl. Dev., 915 F2d 59; Maresca v Cuomo, 64 NY2d 242; Wiggins v Town of Somers, 4 NY2d 215; Byrn v New York City Health & Hosps. Corp., 31 NY2d 194.) II. PCAP does not violate the Equal Protection Clause of the New York State Constitution. (Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981; Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; Maresca v Cuomo, 64 NY2d 242; Golden v Clark, 76 NY2d 618.)

      John D. Murnane, New York City, and Joseph W. Dellapenna, of the Pennsylvania Bar, admitted pro hac vice, for the
    American Academy of Medical Ethics, amicus curiae.

    I. New York’s constitutional guarantees of due process and equal protection embody values discoverable from the history and traditions of the people of New York. (Ginsberg v Purcell, 51 NY2d 272; New York Pub. Interest Research Group v Steingut, 40 NY2d 250; McCulloch v Maryland, 4 Wheat [17 US] 316; Bowers v Hardwick, 478 US 186; Michael H. v Gerald D., 491 US 110; Burnham v Superior Ct. of Cal., 495 US 604; Moore v City of E. Cleveland, 431 US 494; People v Molina, 121 Misc 2d 483; City of New York v Wyman, 66 Misc 2d 402, 37 AD2d 700, 30 NY2d 537; Byrn v New York City Health & Hosps. Corp., 38 AD2d 316, 31 NY2d 194.) II. Claims of a constitutionally protected right to abortion are based upon erroneous notions of the historical status of abortion under the common law and represent a sharp break with long-established traditions and values expressed in the common law and New York’s Constitution. (Evans v People, 49 NY 86; Byrn v New York City Health & Hosps. Corp., 38 AD2d 316, 31 NY2d 194.) III. The Legislature and the people are the proper fora for resolving the competing claims of mothers and their offspring. (Akron v Akron Ctr. for Reproductive Health, 462 US 416.)

      Michael L. Costello, Albany, Richard E. Barnes, Clarke D. Forsythe, Paul Benjamin Linton, Alan J. Placa, Mildred A. Shanley, William J. Toohy and Eileen M. White for the New York State Catholic Conference, amicus curiae.

    I. The PCAP meets the compelling need of New York’s low-income mothers and their children to receive adequate prenatal care, the unavailability of which has resulted in New York having one of the worst infant and maternal health records in the United States. II. The Due Process Clause of the New York Constitution (art I, § 6) does not encompass a right to a publicly funded abortion. (Byrn v New York City Health & Hosps. Corp., 31 NY2d 194; Matter of City of New York v Wyman, 30 NY2d 537; Cooper v Morin, 49 NY2d 69; People v Scott, 79 NY2d 474; Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; Turner v Safley, 482 US 78; Rivers v Katz, 67 NY2d 485.) III. PCAP does not violate the Equal Protection Clause of the New York Constitution (art I, § 11) because it does not burden a fundamental right or discriminate against a protected class of persons. (Under 21 v City of New York, 65 NY2d 344; Matter of Esler v Walters, 56 NY2d 306; Matter of Long Is. Light. Co. v Assessor of Town of Brookhaven, 154 AD2d 188; Golden v Clark, 76 NY2d 618; Matter of Davis, 57 NY2d 382; Dandridge v Williams, 397 US 471.) IV. PCAP is consistent with New York’s duty to care for the needy and to protect the public health under article XVII, §§ 1 and 3 of the New York Constitution. (Tucker v Toia, 43 NY2d 1; Matter of Lee v Smith, 43 NY2d 453; Matter of Bernstein v Toia, 43 NY2d 437; Jiggetts v Grinker, 148 AD2d 1, 75 NY2d 411; Boreali v Axelrod, 71 NY2d 1.) V. The lower courts exceeded their authority in rewriting PCAP to include abortion funding. (Childs v Childs, 69 AD2d 406, 446 US 901.)

      Berle, Kass & Case, New York City (Jean M. McCarroll and Deborah Goldberg of counsel), for the American Ethical Union and others, amici curiae.

    I. New York has a long tradition of commitment to religious liberty. (Matter of Engel v Vitale, 10 NY2d 174; Matter of Rivera v Smith, 63 NY2d 501; Holland v Alcock, 108 NY 312; Matter of O’Neill v Hubbard, 180 Misc 214; Matter of Brown v McGinnis, 10 NY2d 531; Smith v Donahue, 202 App Div 656; People v Lewis, 115 AD2d 597, 68 NY2d 923; Overton v Department of Correctional Servs., 131 Misc 2d 295, affd sub nom. Overton v Coughlin, 133 AD2d 744, 72 NY2d 838; Matter of Fosmire v Nicoleau, 75 NY2d 218.) II. New York’s tradition of religious liberty requires protection of the right of reproductive choice.

      Vladeck, Waldman, Elias & Engelhard, P. C, New York City (Denny Chin and Anne L. Clark of counsel), for Amalgamated Clothing & Textile Workers Union and others, amici curiae.

    I. Chapter 584 violates article XVII, § 1 of the New York State Constitution. (Tucker v Toia, 43 NY2d 1; Minino v Perales, 168 AD2d 289, 79 NY2d 883.) II. Chapter 584 violates article XVII, § 3 of the New York State Constitution. (Tucker v Toia, 43 NY2d 1; Matter of Conlon v Marshall, 185 Misc 638, 271 App Div 972; Co-Pilot Enters, v Suffolk County Dept. of Health, 38 Misc 2d 894; Matter of Levine v Whalen, 39 NY2d 510.)

      Arnold & Porter, New York City (Peter G. Neiman of counsel), and Martha F. Davis for the NOW Legal Defense and Education Fund and others, amici curiae.

    I. The Equal Protection Clause of the New York State Constitution is stronger than its Federal counterpart. (Hope v Perales, 150 Misc 2d 985, 189 AD2d 287; People v Scott, 79 NY2d 474; Cooper v Morin, 49 NY2d 69, cert denied sub nom. Lombard v Cooper, 446 US 984; People v Barber, 289 NY 378; People ex rel. Arcara v Cloud Books, 68 NY2d 553; Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981; People v Bing, 76 NY2d 331; Burnett v Coronada Oil & Gas Co., 285 US 393; People v Harris, 77 NY2d 434.) II. Chapter 584’s abortion exclusion violates the Equal Protection Clause of the New York Constitution. (Geduldig v Aiello, 417 US 484; General Elec. Co. v Gilbert, 429 US 125; Elaine W. v Joint Diseases N. Gen. Hosp., 81 NY2d 211; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371; Board of Educ. v New York State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673; People v Santorelli, 80 NY2d 875; Greschler v Greschler, 71 AD2d 322, 51 NY2d 368; Thaler v Thaler, 89 Misc 2d 315, 58 AD2d 890; People v Moss, 80 Misc 2d 633.)

      Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, New York City (Marvin E. Frankel and Jeffrey S. Trachtman of counsel), Haywood Bums, Janet Gallagher, George Wheeler Madison, Katherine Kennedy, Alesia Selby Regan, Sandra C. Katz and Bonnie S. Edwards for Association of the Bar of the
    City of New York and others, amici curiae.

    I. This Court should analyze the New York constitutional right of reproductive choice independently of Federal constitutional guarantees. (People v Kohl, 72 NY2d 191; Barron v Mayor & City Council of Baltimore, 7 Pet [32 US] 243; People v Scott, 79 NY2d 474; Ives v South Buffalo Ry. Co., 201 NY 271; People v West, 81 NY2d 370; People v Skinner, 52 NY2d 24; People v Alvarez, 70 NY2d 375; People ex rel. Arcara v Cloud Books, 68 NY2d 553; People v Barber, 289 NY 378; People v Harris, 77 NY2d 434.) II. The New York Constitution provides a right of reproductive choice more protective than the corresponding Federal right. (People v P. J. Video, 68 NY2d 296; People v Harris, 77 NY2d 434; Rivers v Katz, 67 NY2d 485; Immuno AG. v Moor-Jankowski, 11 NY2d 235; Matter of Doe v Coughlin, 71 NY2d 48, 488 US 879; Olmstead v United States, 277 US 438; Cooper v Morin, 49 NY2d 69, cert denied sub nom. Lombard v Cooper, 446 US 984; People v Hollman, 79 NY2d 181; People v Onofre, 51 NY2d 476; Thoreson v Penthouse Inti., 149 Misc 2d 150, 179 AD2d 29.) III. The funding exclusion of chapter 584 impermissibly burdens a woman’s fundamental State right of reproductive choice. (People v Harris, 11 NY2d 434; Rivers v Katz, 67 NY2d 485; Cooper v Morin, 49 NY2d 69; Brown v Board of Educ., 347 US 483; O’Neill v Oakgrove Constr., 71 NY2d 521.)

      Paul A. Crotty, Corporation Counsel of New York City (Lama Bade Goodman and Meredith Anne Feinman of counsel), for the City of New York, amicus curiae.

    I. Reproductive choice is a fundamental right which is protected in New York by State constitutional principles of privacy and bodily autonomy. (Rivers v Katz, 67 NY2d 485; Cooper v Morin, 49 NY2d 69; People v Onofre, 51 NY2d 476; Byrn v New York City Health & Hosps. Corp., 31 NY2d 194; Harris v McRae, 448 US 297.) II. Chapter 584’s abortion exclusion violates due process by unconstitutionally burdening a woman’s fundamental right to reproductive freedom. (Harris v McRae, 448 US 297; Cooper

      v Morin, 49 NY2d 69; Rivers v Katz, 67 NY2d 485; Tucker v Toia, 89 Misc 2d 116, 43 NY2d 1.) III. Chapter 584’s abortion exclusion violates the Equal Protection Clause of the New York State Constitution. (Memorial Hosp. v Maricopa County, 415 US 250; Phelan v City of Buffalo, 54 AD2d 262.)

      Michelle Oberman, of the Illinois Bar, admitted pro hac vice, for AIDS Community Services of Western New York and others, amici curiae.

    Chapter 584’s discriminatory abortion exclusion impermissibly pressures women eligible for PCAP’s services to carry to term even at the expense of their health and lives. (Harris v McRae, 448 US 297.)
   OPINION OF THE COURT

Chief Judge Kaye.

At issue is the validity, under the State Constitution, of New York’s Prenatal Care Assistance Program (PCAP) (Public Health Law § 2520 et seq.). Plaintiffs claim that the statute is facially unconstitutional by reason of underinclusiveness, for its failure to include medically necessary abortions in a prenatal care public funding scheme for women with incomes up to 85% over the Federal poverty level (meaning annual income for a single pregnant woman of between $9,840 and $18,204). We now reverse the Appellate Division order and declare the statute constitutional.

The Statute in Issue

New York’s PCAP statute is best understood against the backdrop of related programs.

Medicaid was created by Congress in 1965 to provide Federal reimbursement to participating States for a portion of the cost of all medically necessary services for qualified individuals. Medicaid eligibility is determined by financial need, ultimately assessed by reference to the Federal poverty level— currently annual income below $9,840 for a single pregnant woman. Federal Medicaid reimbursement is available for abortion only in cases of rape or incest, or to save the life of the mother (see, Pub L 103-112, §509). States may, however, at their own option and expense, offer services additional to those reimbursed under Medicaid, and New York has consistently included all medically necessary abortions in its State Medicaid program (Social Services Law § 365-a [2], [5] [b]; 18 NYCRR 505.2 [e]).

In 1987, Congress created PCAP to afford Federal reimbursement to States providing prenatal care and related services for needy pregnant women with household incomes exceeding the Medicaid eligibility standard (see, Omnibus Budget Reconciliation Act of 1987, Pub L 100-203, § 4101). Every State must offer PCAP to women with incomes at or below 133% of the poverty level, and may extend eligibility up to 185% of the poverty level, without regard to other resources these women may have (see, 42 USC § 1396a [l] [2] [A]).

Effective January 1, 1990, New York amended its Public Health and Social Services Laws to participate in PCAP, offering the maximum coverage for which Federal reimbursement is authorized (L 1989, ch 584). Thus, in New York, a single pregnant woman with annual income between $9,840 and $18,204 is eligible for PCAP, which covers enumerated pregnancy-related services: prenatal risk assessment, prenatal care visits, laboratory services, parental health education, referrals for pediatric care and nutrition services, mental health and related social services, transportation to and from appointments, labor and delivery, postpregnancy services such as family planning, inpatient care, dental services, emergency room services, home care and pharmaceuticals (Public Health Law § 2522 [1] [a]-[o]).

PCAP does not provide funding for an abortion, or transportation to or from an abortion. An eligible woman who elects to have an abortion, however, may receive all other covered pregnancy and postpregnancy services. PCAP coverage continues, without regard to a change in income, for 60 days after the month in which the pregnancy terminates, even if by abortion (see, Public Health Law § 2521 [3]).

While Medicaid eligibility generally depends upon verificatian of the application (see, Social Services Law § 366-a [2]), a pregnant woman applying for PCAP is immediately presumed eligible upon a preliminary showing to a qualified provider that her household income falls below 185% of the poverty level (see, Public Health Law § 2529 [2]). Similarly, Medicaid applicants are required to exhaust certain household resources for eligibility (see, Social Services Law § 366 [2]), while PCAP applicants need only satisfy the income requirement (see, Public Health Law § 2521 [3]; Social Services Law § 366 [4] [o] [2]). These differences are rooted in the exigencies attendant upon the need for prenatal care.

As was made explicit at the time of New York’s adoption of PCAP, the available benefits are tailored to the statutory objective of combatting the State’s "unacceptably high rate of low birthweight and infant mortality” — reportedly higher than the national average — and increasing healthy births by ensuring adequate prenatal care to pregnant women who, although not indigent, are deemed less likely to spend their available resources to obtain good prenatal care (see, Mem of State Exec Dept, 1989 McKinney’s Session Laws of NY, at 2218). Studies have documented the correlation between infant mortality and neurological abnormalities on the one hand, and low birthweight and premature birth on the other —conditions ameliorated by proper care throughout pregnancy, which can be costly (see, e.g., House Report No. 99-727 to Pub L 99-509, at 99, reprinted in 1986 US Code Cong & Admin News 3689). PCAP unquestionably is highly effective in meeting its objective.

Proceedings Below

In September 1990, plaintiffs, led by PCAP-eligible women Jane Hope and Jane Moe, commenced this action against the Commissioners of Social Services and Health seeking a preliminary injunction against implementation of the PCAP program to the extent it excludes funding for medically necessary abortions, and a declaration that PCAP-eligible women are entitled to such funding.

Citing evidence that abortions in New York cost between $200 and $3,500 (depending on the facility and the stage of pregnancy), plaintiffs alleged that PCAP-eligible women are otherwise unable to afford abortions. Jane Hope, age 19, was then a PCAP-eligible pregnant woman advised by her doctor that an abortion was medically necessary, and unable to afford the procedure on her earnings of $230 per week. Jane Moe was income eligible under PCAP and, although not pregnant at that time, is a carrier of a fatal genetic defect that would compel her to have an abortion if she were to become pregnant.

Defendants cross-moved for summary judgment declaring the constitutionality of chapter 584. Supreme Court granted the injunction, holding that PCAP violates the Due Process (NY Const, art I, § 6), Equal Protection (NY Const, art I, § 11), Aid to the Needy (NY Const, art XVII, § 1) and Public Health (NY Const, art XVII, § 3) Clauses of the State Constitution by affirmatively and impermissibly pressuring women to choose childbirth over abortion. The court considered and rejected plaintiffs’ additional argument that PCAP impinges upon the free exercise of religion under the State Constitution (NY Const, art I, § 3), a holding not challenged on appeal. Instead of invalidating PCAP as underinclusive, Supreme Court enlarged the beneficial statute to include medically necessary abortions, staying its order pending appellate review. The Appellate Division affirmed (the Presiding Justice dissenting), agreeing with the trial court that the statute was unconstitutional because it coerced, steered or pressured low-income women into choosing childbirth, thus abridging their fundamental right to choose.

Because a substantial constitutional question is directly involved, defendants appeal as of right (see, CPLR 5601 [b] [1]). We granted leave to intervenor-respondent Alma Poindexter, a PCAP recipient.

Analysis

Analysis begins by articulating the common ground. Plainly, PCAP satisfies Federal constitutional standards (see, Harris v McRae, 448 US 297, 316-318, and n 19; Maher v Roe, 432 US 464, 474-475). Only the State Constitution is in issue. Moreover, no one disputes that, as every enactment of a coequal branch of government, PCAP is entitled to a strong presumption of constitutionality, and that plaintiffs bear the heavy burden of establishing the contrary beyond a reasonable doubt (see, Matter of Klein [Hartnett], 78 NY2d 662, 666, cert denied — US —,. 112 S Ct 1945). It is not the role of the courts to pass upon the wisdom of the Legislature’s policy choice, even though there may be differences of views about the decision to exclude a medically necessary service from an otherwise comprehensive prenatal care program.

Similarly, it is undisputed by defendants that the fundamental right of reproductive choice, inherent in the due process liberty right guaranteed by our State Constitution, is at least as extensive as the Federal constitutional right (see, Roe v Wade, 410 US 113, 153-154; Rivers v Katz, 67 NY2d 485, 493; see also, Planned Parenthood of Southeastern Pa. v Casey, 505 US —, —, 112 S Ct 2791, 2816-2817). Nor do defendants challenge New York’s long-standing commitment to fund abortions for poor women under the Medicaid program (see, Social Services Law § 365-a [2], [5] [b]; see also, Matter of City of New York v Wyman, 30 NY2d 537, revg on dissent below 37 AD2d 700).

Finally, plaintiffs do not contend that the statute imposes any direct burden, that it makes abortions any less accessible or less affordable for PCAP-eligible women (see, Golden v Clark, 76 NY2d 618, 626; Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234, 240). PCAP-eligible women (who have income above the poverty level and need not exhaust other resources to establish eligibility) are presumptively able to afford abortion, a legislative premise not rebutted on the record before us. As defendants point out, PCAP may even make abortion more affordable for these women as — irrespective of pregnancy outcome — the statute offers free testing for fetal abnormalities that may early in pregnancy indicate the need for (and thereby reduce the cost of) an abortion, mental health and social services, family planning and 60-day postpartum care.

Instead, the heart of plaintiffs’ challenge is that by funding certain childbirth services for these women, but not abortion, the Legislature has violated an obligation under the Due Process Clause not to influence the exercise of a fundamental right. Plaintiffs recognize that the fundamental right of reproductive choice does not carry with it an entitlement to sufficient public funds to exercise that right, and that the State is not required to remove burdens, such as indigence, not of its creation. They urge, however, that by failing to include abortions among PCAP entitlements, the statute creates an impermissible inducement for women to carry their pregnancies to term and relinquish their fundamental right of choice.

Plaintiffs have failed to establish their contention that PCAP even indirectly infringes the right of reproductive choice. There is no evidence that eligible women are coerced, pressured, steered or induced by PCAP to carry pregnancies to term. Thus, even if we were to recognize a governmental obligation to stand neutral — an issue we need not and do not reach in this case — no violation of such a requirement has been demonstrated here.

Plaintiffs’ contention that a selective allocation of public funds in favor of childbirth over abortion can be an indirect burden on the fundamental abortion right arises from the dissenting opinions of the United States Supreme Court concerning Medicaid funding (see, Harris, 448 US, at 330 [Brennan, J., dissenting] [the "denial of funds for medically necessary abortions plainly intrudes upon this constitutionally protected (abortion) decision, for both by design and in effect it serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have”]; see also, Maher, 432 US, at 484 [Brennan, J., dissenting]). Put succinctly, "[i]t matters not that * * * the Government has used the carrot rather than the stick” (see, Harris, 448 US, at 334 [Brennan, J., dissenting]).

This principle has been embraced by several States as a matter of State constitutional law, invalidating Medicaid funding schemes that exclude medically necessary abortions from comprehensive medical care for the indigent (see, Moe v Secretary of Admin. & Fin., 382 Mass 629, 654-655, 417 NE2d 387, 402 [1981]; Committee to Defend Reproductive Rights v Myers, 29 Cal 3d 252, 270, 284-285, 172 Cal Rptr 866, 876, 885-886, 625 P2d 779, 789, 798-799 [1981]; Right to Choose v Byrne, 91 NJ 287, 307, n 5, 450 A2d 925, 935, n 5 [1982]; Women’s Health Ctr. v Panepinto, 446 SE2d 658, 661 [W Va]).

The case before us is significantly different. Unlike an indigent woman, whose option to choose an abortion is arguably foreclosed by her lack of resources, the PCAP-eligible woman — not ordinarily a recipient of State assistance — presumptively has the financial means to exercise her fundamental right of choice. That the Legislature in these circumstances elects to subsidize certain prenatal services cannot, in and of itself, be deemed coercive, and no showing has been made that such a woman would be influenced by PCAP to carry a child to term.

Nor does the statute impermissibly penalize women for exercising their right to choose. In Regan v Taxation with Representation of Wash. (461 US 540, 545), for example, the Supreme Court upheld Congress’ refusal to extend a tax deduction to charitable contributions made for lobbying activities, concluding that a mere failure to subsidize the exercise of plaintiffs’ right of free speech, even though the deduction was available to those who did not lobby, was constitutionally permissible. Like the regulation in Regan, PCAP simply fails to subsidize abortion. Eligibility for the program does not terminate if a participant aborts her pregnancy, nor does the statute require reimbursement for any services received before abortion. PCAP does not penalize the exercise of the right of choice, as it does not deny eligibility for any benefit to which participants choosing to abort would otherwise be entitled.

We thus conclude that PCAP does not in any sense burden a fundamental right, and accordingly the statute is valid if it bears a rational relationship to the State’s interest in providing much-needed prenatal care to low-income women (see, Golden v Clark, 76 NY2d, at 624, supra). Because plaintiffs concede the laudable goals and effectiveness of PCAP in ameliorating infant mortality and morbidity, we conclude that it does satisfy the rational relationship test.

We briefly address plaintiffs’ remaining constitutional claims, which arise from the Aid to the Needy (NY Const, art XVII, § 1) and Public Health (NY Const, art XVII, § 3) Clauses of the State Constitution. Plaintiffs urge that PCAP violates those provisions by excluding coverage for medically necessary abortions without regard to the financial or medical need of the participants. This contention fails because, as discussed previously, we are bound to accept the legislative determination that PCAP-eligible women are not indigent or in need of public assistance to meet their medical needs. We cannot infer the contrary from the mere fact that PCAP — aimed neither at the protection of public health nor at the support of the needy —was enacted (see, Tucker v Toia, 43 NY2d 1, 8 [art XVII, § 1 imposes affirmative obligation on the Legislature to aid "those whom it has classified as needy”]).

Moreover, both clauses expressly accord to the Legislature discretion to promote the State’s interest in aiding the needy and promoting public health "in such manner, and by such means as the legislature may from time to time determine” (NY Const, art XVII, §§ 1, 3). We cannot say beyond a reasonable doubt that, by not including abortion funding in PCAP, the Legislature has transgressed its powers.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring valid chapter 584 of the Laws of 1989.

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

Order reversed, etc.

      . Used throughout are the 1994 Federal poverty figures (59 Fed Reg 6277). Monthly income for PCAP-eligible single women would thus range from $820 to $1,517.

      . PCAP replaced New York’s pilot Prenatal Care Assistance Program, created in 1987, which authorized the Commissioner of Health to provide grants of State funds to prenatal care service providers (see, L 1987, ch 822). PCAP is funded and administered through the Medicaid program (see, Social Services Law § 366 [4] [n], [o]; § 368-a [1] [,l]).

      . In conjunction with PCAP, New York expanded its Medicaid program to provide Medicaid coverage for pregnant women with incomes at or below the Federal poverty level (see, Social Services Law § 366 [4] [m]).

      . New York City, at its own expense, provides abortions free of charge to PCAP-eligible women.

      . The other plaintiffs are four obstetricians/gynecologists, a nurse-midwife, seven health care clinics serving low-income women, four reproductive rights advocacy organizations and two members of the clergy. Supreme Court determined that Moe and the clergy members lacked standing to bring this action, a conclusion not challenged on appeal.

      . [2] While plaintiffs also assert a denial of equal protection, equal protection is at the core of their due process argument, and both challenges fail for much the same reasons.

      . This principle may be traced to Sherbert v Verner (374 US 398, 404), in which the Supreme Court invalidated a State provision denying unemployment benefits based on the refusal of a Seventh-day Adventist to accept Saturday work, holding that "the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” The Supreme Court itself has limited the neutrality obligation recognized in Sherbert to regulations that infringe on rights arising under the Establishment and Freedom of Religion Clauses of the First Amendment (see, Maher v Roe, 432 US, at 475, n 8).


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [634 NE2d 189, 611 NYS2d 817]
    Linda C. Palka, Appellant, v Servicemaster Management Services Corporation, Respondent.
    Argued March 22, 1994;
    decided May 5, 1994

      POINTS OF COUNSEL

      De Lorenzo, Gordon, Pasquariello, Weiskopf & Harding, P. C., Schenectady (Susan E. Beaudoin and Thomas E. De Lorenzo of counsel), for appellant.
    I. Defendant-respondent violated its duty to exercise reasonable care in the performance of its tasks to prevent foreseeable harm to plaintiff. (Wells v Finnegan, 177 AD2d 893; Bourk v National Cleaning, 174 AD2d 827; Moch Co. v Rensselaer Water Co., 247 NY 160; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Strauss v Belle Realty Co., 65 NY2d 399.) II. Plaintiff-appellant is an intended beneficiary of the contract between defendant-respondent and Ellis Hospital. (Fish v Waverly Elec. Light & Power Co., 189 NY 336; White v Guarente, 43 NY2d 356; Hall v United Parcel Serv., 76 NY2d 27; Dickerhof v Port Auth. of N. Y. & N. J., 174 AD2d 506; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Bourk v National Cleaning, 174 AD2d 827; Raffa v Stilloe Roofing & Siding, 182 AD2d 901; Moch Co. v Rensselaer Water Co., 247 NY 160; Lawrence v Fox, 20 NY 268; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314.) III. Servicemaster had constructive notice of the defect in the fan which struck plaintiff. (Rabat v GNAC Corp., 180 AD2d 540; Di Marco v Westinghouse Elec. Corp., 170 AD2d 760.)

      Hinshaw & Culbertson (Carlton D. Fisher and Stephen R. Swofford of counsel, of the Illinois Bar, admitted pro hac vice), and Donahue, Sabo, Varley & Armstrong, P. C, Albany (Fred J. Hutchison of counsel), for respondent.
    I. Servicemaster assumed no duty, either in contract or in tort, with respect to the fans. (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Bourk v National Cleaning, 174 AD2d 827; Andreaccio v Unique Parking Corp., 158 AD2d 222; Public Adm’r of County of N. Y. v Fifth Ave. Dev. Corp., 180 AD2d 473; Dickerhof v Port Auth. of N. Y. & N. J., 174 AD2d 506; Fish v Waverly Elec. Light & Power Co., 189 NY 336; Hall v United Parcel Serv., 76 NY2d 27.) II. The intended beneficiary analysis has nothing to do with this case. (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; White v Guarente, 43 NY2d 356; Strauss v Belle Realty Co., 65 NY2d 399; Raffa v Stilloe Roofing & Siding, 182 AD2d 901.) III. Servicemaster cannot be held liable because there is no evidence that it had notice of any defect in the fan which struck plaintiff. (Rabat v GNAC Corp., 180 AD2d 540; Grier v Macy & Co., 173 AD2d 238; Di Marco v Westinghouse Elec. Corp., 170 AD2d 760; Cheeseman v Inserra Supermarkets, 174 AD2d 956.)
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff-appellant Palka, a registered nurse employed by Ellis Hospital in the City of Schenectady, was injured in 1987 while performing her nursing duties. An oscillating wall-mounted fan fell on her from its wooden mount as she attended to a patient. The nurse’s negligence action against defendant Servicemaster Management Services Corporation derives from that company’s contractual obligations to the hospital, for a biweekly payment of $91,207, to develop and implement a maintenance program for the hospital premises, among other specified functions. The question framed within the boundaries of this record is whether Servicemaster should be answerable to Palka for tortiously inflicted personal injuries arising from defendant’s negligent or failed performance of the contractual obligations to Ellis Hospital in the first instance. We conclude it should be.

L

Two years before the accident, Servicemaster contracted with Ellis Hospital to provide management services, which included, in part, the duty to "train, manage and direct” all support service employees of the hospital, expressly including the hospital’s maintenance department. Defendant did not install the preexisting wall-mounted fans. From 1982 through 1985, the hospital supervised its own maintenance department and employees, and included a safety inspection of the fans and mountings in all rooms in its operations. Room fan inspections ceased when Servicemaster assumed maintenance responsibilities for the hospital premises in 1985.

At the conclusion of the liability portion of plaintiff’s case, tried before a jury which answered questions on a special verdict, defendant moved for a directed verdict. It argued that it owed no duty to plaintiff. Supreme Court denied the motion and let the jury’s verdict stand in plaintiffs favor. On defendant’s appeal, the Appellate Division reversed and by a vote of 3 to 2 dismissed the complaint. Relying principally on Eaves Brooks Costume Co. v Y.B.H. Realty Corp. (76 NY2d 220), that Court’s majority held that "defendant neither owed a cognizable duty to plaintiff nor assumed a duty to act in this instance” (195 AD2d 638, 639). The dissenting Justices would have upheld the jury verdict. Under the circumstances and evidence adduced in this case, we conclude that Servicemaster assumed a duty to act. Negligent failure to perform it may thus render Servicemaster liable to plaintiff. Accordingly, the order of the Appellate Division, appealed as of right by plaintiff on the two-Justice dissent, should be reversed and the judgment based on the jury verdict on liability in plaintiffs favor should be reinstated.

II

In particular, Servicemaster denies that its contractual responsibilities to Ellis Hospital encompassed inspection of the wall-mounted fans. Their contract, entitled "General Services and Plant Operations and Maintenance,” delineated defendant’s duties into three separate categories: Housekeeping Services, Quality Control, and General Services. Servicemaster agreed to furnish all coordinating management, training and technical personnel needed to accomplish the support services; train, manage, supervise and direct all support service employees in the performance of their respective duties; perform all administrative duties relating to support service employees; supply materials for housekeeping; pay all direct operating costs and expenses required in the performance of the support services; and provide and maintain the daily work and project schedules, standard operating procedures and training manuals. Ellis Hospital paid Servicemaster $91,207 biweekly for taking charge of these functions. In addition, Servicemaster agreed to indemnify and hold Ellis Hospital harmless as to any liability which may be imposed against the hospital by reason of any acts or omissions of Servicemaster.

The contract makes no specific mention of fan maintenance and contains no provision requiring a general inspection program. Paul Brown, the Director of Plant Operations for Servicemaster, testified at trial, however, that part of Service-master’s general duties was "to create a clean and safe environment” for employees and patients, to reduce safety hazards and to engage in "preventative maintenance and casualty control or casualty prevention,” defined as "primarily one of inspection and checking to see if something needs repairing before it falls” (emphasis added). Brown added that it was Servicemaster’s responsibility to provide leadership necessary for the effective coordination of plant maintenance and to run a program of inspection and preventative maintenance. He further testified that it was Servicemaster’s responsibility to instruct Ellis Hospital’s maintenance department employees on how and when to perform maintenance on all electrical and mechanical equipment. In furtherance of its contractual duty to provide "preventative maintenance,” Servicemaster directed the hospital’s floor mechanics to speak with each head nurse with respect to necessary repairs.

This evidence, coupled with the specifications of the contract itself, belie Servicemaster’s denial of any contractual responsibility to supervise a preventative maintenance program, which particularly included the inspection and repair of the wall-mounted hospital fans. Plainly, its extensive privatization arrangement displaced entirely the hospital’s prior in-house maintenance program and substituted an exclusive responsibility in Servicemaster to perform all of Ellis Hospital’s pertinent nonmedical, preventative, safety inspection and repair service functions.

¡IL

Servicemaster’s responsibility to Ellis Hospital to inspect and repair, however, does not automatically make it liable in tort for this noncontracting plaintiffs injuries. That issue requires an examination of whether Servicemaster’s duties extend beyond its relationship with Ellis Hospital, and if so, how far out and on what policy and analytical bases.

We start this part of the analysis with the proposition that a duty of reasonable care owed by a tortfeasor to an injured party is elemental to any recovery in negligence (see, Eiseman v State of New York, 70 NY2d 175, 187; Turcotte v Fell, 68 NY2d 432, 437; Akins v Glens Falls City School Dist., 53 NY2d 325; Pulka v Edelman, 40 NY2d 781). Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration (see, Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226, supra; Waters v New York City Hous. Auth., 69 NY2d 225, 229; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 1055). Common-law experience teaches that duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. These sources contribute to pinpointing and apportioning of societal risks and to an allocation of burdens of loss and reparation on a fair, prudent basis (see, De Angelis v Lutheran Med. Ctr., supra; Micallef v Miehle Co., 39 NY2d 376, 385; Codling v Paglia, 32 NY2d 330, 340).

Chief Judge Cardozo sagely instructed all who have continued to search for this shimmering line of duty in endless fact patterns and juridical relationships with the now familiar axiom that "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344 [emphasis added]). It has been said, with additional words, that " 'whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he [or she] did not use ordinary care and skill in his [or her] own conduct with regard to the circumstances he [or she] would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger’ ” (Havas v Victory Paper Stock Co., 49 NY2d 381, 386, quoting Heaven v Pender, 11 QBD 503, 509, Brett, MR [1883]). Thus, we have come to recognize that while the existence of a duty involves scrutiny of the wrongfulness of a defendant’s action or inaction, it correspondingly necessitates an examination of an injured person’s reasonable expectation of the care owed and the basis for the expectation and the legal imposition of a duty (see, Turcotte v Fell, 68 NY2d 432, 437, supra).

All persons entering Ellis Hospital surely hold a reasonable expectation that someone is in charge of and responsible for basic safety inspections and maintenance of equipment and the premises. Defendant untenably disclaims responsibility in this regard on this record. Yet, its contract and its manager demonstrably point to its singular obligation to carry out and carry on with these essential functions. We do not countenance the view that no one has these duties and we conclude that Servicemaster undertook them.

The interwoven question then is to whom the duty to use reasonable care in the performance of these duties is owed. In this case, this is not solely a matter between the parties to the contract. The arrangements between Servicemaster and Ellis Hospital plainly affect the safety of all users of the premises who are entitled to rely on the nonnegligent maintenance services and repair responsibilities imposed by the contract (see, White v Guarente, 43 NY2d 356; Dickerhof v Port Auth. of N. Y. & N. J., 174 AD2d 506, 507).

Not uncommonly, parties outside a contract are permitted to sue for tort damages arising out of negligently performed or omitted contractual duties (see, Glanzer v Shepard, 233 NY 236; MacPherson v Buick Motor Co., 217 NY 382; Fish v Waverly Elec. Light & Power Co., 189 NY 336; see also, Hall v United Parcel Serv., 76 NY2d 27, 32). Additional guidance is again provided by that vast resource, Judge Cardozo: "There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use” (MacPherson v Buick Motor Co., supra, at 393).

On the other hand, the boundaries of duty are not simply contracted or expanded by the notion of foreseeability, for if it were, "[ejvery one making a promise having the quality of a contract will be under a duty to the promisee by virtue of the promise, but under another duty, apart from contract, to an indefinite number of potential beneficiaries when performance has begun” (Moch Co. v Rensselaer Water Co., 247 NY 160, 168; see, Beck v FMC Corp., 42 NY2d 1027, affg 53 AD2d 118; Tobin v Grossman, 24 NY2d 609). Courts traditionally and as part of the common-law process fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.

To limit an open-ended range of tort duty arising out of contractual breaches, injured noncontracting parties must show that the "performance of contractual obligation [between others] has induced detrimental reliance [by them] on continued performance and inaction would result not 'merely in withholding a benefit, but positively or actively in working an injury’ ” (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226, supra, citing Moch Co. v Rensselaer Water Co., 247 NY 160, 167, supra). The nexus for a tort relationship between the defendant’s contractual obligation and the injured noncontracting plaintiff’s reliance and injury must be direct and demonstrable, not incidental or merely collateral (see, Strauss v Belle Reality Co., 65 NY2d 399; White v Guarente, 43 NY2d 356, supra; Ultramares Corp. v Touche, 255 NY 170).

IV.

The foregoing precedents and principles point the way to our determination of whether Servicemaster’s duty extends to plaintiff-appellant Palka. We conclude it should because she proved not only that Servicemaster undertook to provide a service to Ellis Hospital and did so negligently, but also that its conduct in undertaking that particular service placed Palka in an unreasonably risky setting greater than that, had Servicemaster never ventured into its hospital servicing role at all (see, Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, supra, citing Moch Co. v Rensselaer Water Co., 247 NY 160, 167).

We are convinced that the Appellate Division majority in this case overextended the precise rationale of Eaves Brooks Costume Co. v Y.B.H. Realty Corp. (supra) by its ruling limiting the duty range here. First, the property damages categorization of Eaves Brooks does not automatically carry over to personal injury claims where other public policies, factors and analytical considerations are in play, as has been explained. As the Court recently observed in Hall v United Parcel Serv. (76 NY2d 27, 32, supra), had plaintiff "sustained physical injury from the test * * *, there would be no question of his right to maintain a cause of action against the examiner, notwithstanding the absence of a relationship of privity.”

Further, with respect to Eaves Brooks, the plaintiff was a commercial tenant who sought to recover property damage sustained when a fire sprinkler system malfunctioned and flooded the leased premises, destroying the plaintiff’s retail merchandise. The tenant sued New York Automatic Sprinkler Service Co., which was under contract to inspect the sprinkler system at a yearly cost of $120. The tenant also sued Wells Fargo Alarm Services, which contracted to install and maintain a central station fire alarm system for an annual fee of $660. Following the restrictions imposed by Glanzer and Moch, the Court stated that whether the defendants should be held liable in tort based on a contractual breach turned on "whether the defendant has assumed a duty to exercise reasonable care to prevent foreseeable harm to the plaintiff” (76 NY2d, at 226, supra). Our holding in Eaves Brooks denying the plaintiff a right to recover in tort against the contracting defendants emphasizes that "a contractual obligation, standing alone” in the "ordinary case” will not extend duties beyond the contracting parties (id., at 226 [emphasis added]). The Court then relied on policy considerations to foreclose liability, for example, the plaintiff’s right to seek damages directly from the building’s owners; the building’s owners being in a better position to insure against any property loss in the building; and the limited scope of defendants’ undertaking reflected in the minimum annual services fee arrangement of $120 and $660, respectively. Those factors and policy considerations do not apply in this case and the contractual obligation does not stand alone here (contrast, Raffa v Stilloe Roofing & Siding, 182 AD2d 901, 902). Here, the traditional, complex and particularized analytical path previously described well supports the result we reach on this record, for unlike Eaves Brooks where the Court emphasized a limited contractual undertaking, Servicemaster’s agreement was comprehensive and exclusive. It required Servicemaster to train, manage, supervise and direct all support services employed in the performance of daily maintenance duties (compare, Boyle v Anderson Fire Fighters Assn., 497 NE2d 1073 [Ind]; Devine v Kroger Grocery & Baking Co., 349 Mo 621, 162 SW2d 813; West Ky. Coal Co. v Hazel’s Adm’x, 279 Ky 5, 129 SW2d 1000; Stanolind Oil & Gas Co. v Bunce, 51 Wyo 1, 62 P2d 1297; Sloss-Sheffield Steel & Iron Co. v Wilkes, 231 Ala 511, 165 So 764; Lough v Davis & Co., 30 Wash 204, 70 P 491; Mayer v Thompson-Hutchison Bldg. Co., 104 Ala 611, 16 So 620). Consistent with the rationale of Eaves Brooks (supra), the legal duty is not created solely by the contract but is imposed on a defendant for additional reasons. Moreover, defendant contracted with an owner or possessor to maintain, manage and inspect property and, thus, defendant "does or ought to foresee the likelihood of physical harm to third persons as a result of reasonable reliance by the owner on [it] to discover or repair dangerous conditions” (Prosser and Keeton, Torts § 93, at 670 [5th ed]).

Notably, too, unlike our decisions in Moch Co. v Rensselaer Water Co. (supra) and Strauss v Belle Realty Co. (supra), the instant case presents this array of factors: reasonably interconnected and anticipated relationships; particularity of assumed responsibility under the contract and evidence adduced at trial; displacement and substitution of a particular safety function designed to protect persons like this plaintiff; and a set of reasonable expectations of all the parties. These factors, taken together, support imposition of liability against this defendant in favor of this plaintiff.

Here, the functions to be performed by Servicemaster were not directed to a faceless or unlimited universe of persons. Rather, a known and identifiable group — hospital employees, patients and visitors — was to benefit and be protected by safety maintenance protocols assumed and acquired exclusively by Servicemaster. It cannot reasonably claim that it was unaware or that it was entitled to be unaware that individuals would expect some entity’s direct responsibility to perform maintenance services with ordinary prudence and care (see, Prosser and Keeton, Torts § 93, at 670 [5th ed]; contrast, Bourk v National Cleaning, 174 AD2d 827, lv denied 78 NY2d 858). In fact, the very "end and aim” of the service contract was that Servicemaster was to become the sole privatized provider for a safe and clean hospital premises (see, Glanzer v Shepard, 233 NY 236, 239, supra).

V.

This record supports the conclusion that Servicemaster undertook a duty and breached the duty to inspect and manage the repair of wall-mounted fans. Nurse Palka was injured as a result of Servicemaster’s negligent performance or nonperformance of that tort duty arising out of its extensive, exclusive maintenance contract. We hold that when a party contracts to inspect and repair and possesses the exclusive management and control of real or personal property which results in negligent infliction of injury, its assumed duty extends to noncontracting individuals reasonably within the zone and contemplation of the intended safety services. The defendant’s obligation in a case such as this is circumscribed, therefore, not merely by the contract but also in light of the duty imposed by law based on the interrelationship of all the parties, as framed by the evidentiary record.

Accordingly, for these reasons, the order of the Appellate Division should be reversed, with costs, and the judgment based on the jury verdict of liability in plaintiff’s favor should be reinstated.

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

Order reversed, with costs, and judgment of Supreme Court, Saratoga County, reinstated.


author: Ciparick, J.

text:
    [634 NE2d 195, 611 NYS2d 823]
    In the Matter of Weil, Gotshal & Manges et al., Respondents, v Carol O’Cleireacain, as Commissioner of Finance of the City of New York, Appellant. In the Matter of LeBoeuf, Lamb, Leiby & MacRae et al., Respondents, v Carol O’Cleireacain, as Commissioner of Finance of the City of New York, Appellant.
    Argued March 17, 1994;
    decided May 5, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Amy F. Nogid, Edith I. Spivack and Edward F. X. Hart of counsel), for appellant in the first and second above-entitled proceedings.
    The City’s Unincorporated Business Income Tax statute limits the partnership’s exemption to the amount of its income which is included in its corporate partners’ net income allocable to the City for General Corporation Tax purposes. It does not extend the exemption to the amount of the alternative tax base, even if that is the method on which the corporate partners pay their General Corporation Tax. (Matter of Richmond Constructors v Tishelman, 61 NY2d 1; People ex rel. Barcalo Mfg. Co. v Knapp, 227 NY 64; Matter of Fischbach & Moore v State Tax Commn., 36 NY2d 605; Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588; Matter of Lowitz v Graves, 261 App Div 715, 287 NY 613; Matter of Varsity Tr. v Department of Fin., 157 AD2d 620; Parochial Bus Sys. v Department of Fin., 104 AD2d 1059, 64 NY2d 607; Matter of Mobil Oil Corp. v Finance Adm’r, 58 NY2d 95; Matter of Grace v New York State Tax Commn., 37 NY2d 193; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393.)

      Weil, Gotshal & Manges, New York City (Michael K. Stanton, Gordon D. Henderson, Bonnie Garone and Andrew Cadel of counsel), for respondents in the first above-entitled proceeding.
    The courts below correctly concluded that the City Unincorporated Business Income Tax provides an exemption for the amount of a corporate partner’s net income, allocable to New York City, that is subject to tax under the General Corporation Tax. (People ex rel. Tower v State Tax Commn., 282 NY 407; Matter of Richmond Constructors v Tishelman, 61 NY2d 1; Matter of Fischbach & Moore v State Tax Commn., 36 NY2d 605; Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 149 Misc 2d 571, 183 AD2d 521, 80 NY2d 657; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588.)

      LeBoeuf, Lamb, Leiby & MacRae, New York City (Hugh T. McCormick, John S. Kinzey, Margaret A. Keane and Douglas W. Killip of counsel), for respondents in the second above-entitled proceeding.
    I. The City’s regulation clearly results in double taxation. II. The plain meaning of the Unincorporated Business Income Tax statute, and all relevant authorities, support the lower courts’ interpretation of the exemption. (Matter of Richmond Constructors v Tishelman, 61 NY2d 1; People ex rel. Tower v State Tax Commn., 282 NY 407.) III. The City urges this Court to apply the wrong standard of review. (Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 183 AD2d 521, 80 NY2d 657; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)
   OPINION OF THE COURT

Ciparick, J.

In both of these CPLR article 78 proceedings brought by law firms, some of whose partners are professional corporations, the issue presented involves the computation of the exemption allowed by Administrative Code of the City of New York § 11-510 (2).

I.

Weil, Gotshal & Manges and LeBoeuf, Lamb, Leiby & MacRae are partnerships engaged in the practice of law in New York City and as such are subject to taxation under the Unincorporated Business Income Tax (UBT) (Administrative Code § 11-501 et seq.). Some of the law firms’ partners are professional corporations for the tax years ending January 31, 1984 and January 31, 1985 and December 31, 1983 and December 31, 1984 respectively. These corporate partners were likewise subject to tax on their income under the General Corporation Tax (GCT) (Administrative Code § 11-602 et seq.).

In computing the UBT liability for the years in question, the law firms took an exemption pursuant to Administrative Code § 11-510 (2), based on an alternative used in determining GCT liability which created the greater net income base, i.e., the higher tax for GCT purposes and the lower UBT. The City maintained that the alternative was unavailable to the taxpayers and only the formula which computes the GCT on the corporation’s entire income, could be used in computing the exemption under section 11-510 (2). The City issued deficiencies recomputing the tax based on the use of this entire income formula. The law firms unsuccessfully petitioned for a redetermination of deficiencies.

To resolve the conflict over the proper interpretation of Administrative Code § 11-510 (2), each firm commenced an article 78 proceeding. In the decisions from which the City appeals, both Supreme Court and the Appellate Division held that the City’s interpretation of Administrative Code § 11-510 (2) as set forth in Unincorporated Business Tax Regulation § 9-2 (c) (4), was erroneous. The Appellate Division granted the City’s motion for leave to appeal to this Court and certified the following question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?”

II.

By imposing both a corporate income tax (GCT) on the net business income of corporations and a tax on the net business income earned by unincorporated entities (UBT), the City proposed to obtain revenue from business activities which would otherwise escape taxation because of their noncorporate nature. Thus, here, the law firm partners that incorporated became subject to the GCT, the partnerships remaining subject to the UBT but entitled to reduce their UBT income to avoid double taxation pursuant to the exemption provision under section 11-510 (2).

The sole issue here is how to calculate the partnerships’ exemption under the UBT for that portion of their income that becomes subject to taxation as corporate income under the GCT once that income is distributed to the individual incorporated partners. The City argues that the exemption should be calculated as entire net income of the corporations, while the partnerships contend that they should be allowed to use an alternative method of calculating the net income. The alternative method results in a higher tax liability for the incorporated partner under the GCT but, accordingly, also results in a greater exemption for the partnership under the UBT. More significantly, the City requires the incorporated partner to use the alternative method in calculating GCT liability. Thus, the partnerships are seeking to exempt from their UBT liability the amount of income actually subject to the GCT for each partner. The City’s. interpretation, on the other hand, requires that the higher amount (the alternative method) be used by a partner when figuring GCT liability and the lower amount (the entire net income method) be used by the partnership when calculating its UBT exemption. The partnerships contend that the City’s interpretation results in double taxation because the amount subject to taxation under the GCT is not fully excludable under the UBT. Specifically, any dollar subject to GCT taxation but not excludable from UBT taxation is being taxed twice, the law firms contend— once as corporate income to the individual partner and again as unexcluded partnership income for the law firm.

The courts below found that the City’s interpretation of this exemption provision and its regulation interpreting the statute is erroneous and results in double taxation. We agree. The Appellate Division found that to the extent that a corporate partner is subject to tax based upon the alternative tax calculation, it accords with the purpose of the statute to permit a corresponding exemption from the UBT, so as to avoid double taxation, citing this Court’s decision in Matter of Richmond Constructors v Tishelman (61 NY2d 1). Although the alternative method of determining income for GCT purposes was not at issue in that case, it did, however, stand for the principle that the UBT’s exemption provisions should be construed in a way that avoids double taxation under the UBT and GCT.

Furthermore, the plain language of the statute and the legislative history which preceded its enactment further support petitioner’s position that the purpose of the statute was to reach only income not taxed under the GCT and was not intended to tax the same business income twice. It thus appears clear that the UBT is intended to apply only where the GCT does not (see, Bill Jacket, L 1939, ch 408, as it relates to the State UBT, the model to the present City UBT exemption statute).

We find persuasive the New York State Tax Commission decision of Matter of M.L. Weiss & Co. (TSB-H-87-[5]-I) which interpreted the same exemption language by the State Tax Commission specifically finding that double taxation would frustrate the intent of the statute.

Since we find the regulation at issue in clear conflict with the conceded legislative intent, we need not reach the question of deference.

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

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

In each case: Order affirmed, etc.

      . Administrative Code § 11-510 (2) provides: "if a partner in an unincorporated business is taxable under this chapter or under any local law imposed pursuant to section one of chapter seven hundred seventy-two of the laws of nineteen hundred sixty-six, an exemption for the amount of the partner’s proportionate interest in the excess of the unincorporated business gross income over the deductions allowed under sections 11-507 and 11-509 of this chapter, but this exemption shall be limited to the amount which is included in the partner’s unincorporated business taxable income allocable to the city, or included in a corporate partner’s net income allocable to the city.”

      . The City’s regulation interpreting the statute, section 9-2 (c) (4) (codified at 19 RCNY 28-09 [b] [3] [iv]), states: "The additional exemption allowed an unincorporated business with respect to a corporate partner is limited to the corporate partner’s net income allocable to the City even though the corporate partner does not pay a New York City general corporation tax measured by allocated net income because one of the alternative measures of the general corporation tax produces a higher tax.”

      . Notably, the City shifted its position in 1985, when it promulgated the regulation at issue. Prior thereto, the City’s position was consistent with that of petitioners herein (see, Mem of Commissioner of Finance Harry S. Tishelman, dated Apr. 7, 1980).


text:
    [634 NE2d 938, 612 NYS2d 337]
    In the Matter of Ian Dawes, Respondent, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Appellant.
    Argued March 16, 1994;
    decided May 3, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General, Albany (Martin A. Hotvet, Jerry Boone and Peter H. Schiff of counsel), for appellant.
    The rules invoked by the court below make no sense as applied to this case and conflict with applicable authority in this Court, the other Appellate Divisions and the Federal courts. (People ex rel. Vega v Smith, 66 NY2d 130; Matter of Preston v Coughlin, 164 AD2d 101; Matter of Rosario v Seksky, 162 AD2d 939; Wolff v McDonnell, 418 US 539; Holt v Board of Educ., 52 NY2d 625; Scott v Kelly, 962 F2d 145; Matter of Rivera v Smith, 63 NY2d 501; Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Sostre v McGinnis, 442 F2d 178, cert denied sub nom. Sostre v Oswald, 404 US 1049; Matter of Laureano v Kuhlmann, 75 NY2d 141.)

      Karen L. Murtagh-Monks, Albany, David C. Leven and Tom Terrizzi for respondent.
    I. The original administrative decision was final and the review officer had no authority to reconsider the matter. (Matter of Preston v Coughlin, 164 AD2d 101; Matter of Gonzalez v Jones, 115 AD2d 849; Matter of Rahman v Coughlin, 112 AD2d 591; Matter of Hutton v Ford Motor Co., 3 AD2d 169; Matter of Seidner v Town of Colonie, 79 AD2d 751, 55 NY2d 613; Matter of Lake Placid Club v Abrams, 6 AD2d 469, 6 NY2d 857; Holt v Board of Educ., 52 NY2d 625;
      Matter of Coleman v Coombe, 65 NY2d 777; Matter of Murray v Scully, 170 AD2d 829; Matter of Hartje v Coughlin, 70 NY2d 866.) II. Expungement is the only appropriate remedy where there has been a violation of established constitutional rights. (Wolff v McDonnell, 418 US 539; Matter of Barnes v LeFevre, 69 NY2d 649; Matter of Maier v Coughlin, 193 AD2d 1015; Matter of Codrington v Mann, 174 AD2d 868; Matter of Torres v Coughlin, 166 AD2d 793; Matter of Taylor v Coughlin, 158 AD2d 881; Matter of Williams v Coughlin, 145 AD2d 771; Matter of Santana v Coughlin, 90 AD2d 947; Matter of Burke v Coughlin, 97 AD2d 862; Matter of Tolden v Coughlin, 90 AD2d 929.)
   OPINION OF THE COURT

Ciparick, J.

At issue in this case is whether respondent Commissioner possesses the authority to reconsider a prior determination when requested to do so by the petitioner inmate. We conclude that respondent acted properly in entertaining the supplementary appeal to petitioner’s pro se administrative appeal and in granting the relief requested therein.

I

In January 1991, petitioner, a prisoner in the Great Meadow Correctional Facility, was charged in three separate misbehavior reports with disobeying the facility rules prohibiting assault (two counts) and refusing a direct order. Petitioner was found guilty of all charges at a Tier III hearing and received a penalty of 545 days in Special Housing with the loss of privileges and recommended loss of good time credit for that period.

Petitioner filed an administrative appeal pursuant to 7 NYCRR 254.8. He claimed, among other things, that he was denied the right to be present at his hearing. The determination was reviewed and affirmed by respondent on March 18, 1991. On March 21, 1991, respondent’s designee, Donald Selsky, Director of Special Housing/Inmate Discipline, received a letter denominated a "supplementary appeal” from John Charles, Managing Attorney of the Albany office of Prisoners’ Legal Services of New York. The letter was dated March 18th and urged "consideration as to the issue of Mr. Dawes’ presence at the hearing.” Mr. Charles argued for reversal of the hearing determination on procedural grounds, noting that petitioner’s request for preservation of a videotape had been denied and petitioner allegedly needed the tape to prove that he had not refused to attend his hearing. The remedy sought in the letter was a new hearing.

On March 25, 1991, Mr. Selsky reconsidered the appeal, administratively reversed the determination, and ordered a new hearing, stating: "Inmate’s refusal to attend hearing was not clearly established. Also, witness refusal to testify was questionable, especially in view of the fact that the inmate allegedly refused to attend hearing.”

A second hearing was held in April 1991 and petitioner was again found guilty. On administrative appeal, the penalty was modified to 365 days in Special Housing and 12 months recommended loss of good time.

Petitioner commenced this proceeding challenging respondent’s determination and the March 25, 1991 reconsideration and order for a rehearing, and seeking expungement of the proceedings from his record. Supreme Court, initially unaware of respondent’s March 18, 1991 determination, dismissed the petition on the ground that administrative agencies possess inherent authority to reconsider prior nonfinal determinations tainted by procedural improprieties.

Petitioner moved for reconsideration, pointing out that respondent had originally affirmed the hearing disposition on March 18, 1991. Supreme Court granted petitioner’s motion, vacated its prior decision and judgment dismissing the petition, granted the petition, annulled respondent’s determination of March 25, 1991 and the rehearing conducted pursuant thereto, and directed respondent to expunge all records arising out of petitioner’s disciplinary proceeding from his institutional parole and disciplinary file. Supreme Court concluded that respondent "lacked the authority to reconsider, sua sponte, its final decision of March 18, 1991, * * * and to order a rehearing for the purposes of curing alleged procedural defects.” Furthermore, petitioner was entitled to expungement in light of respondent’s denial of petitioner’s fundamental right to be present during his hearing and to call witnesses.

The Appellate Division affirmed, stating: "Respondent, in administratively reversing the determination, effectively found that petitioner was denied, his right to call witnesses and to be present at the hearing. Given these facts, we agree with Supreme Court’s finding that expungement was the proper remedy in this case (see, Matter of Preston v Coughlin, 164 AD2d 101; Matter of Rosario v Seksky, 162 AD2d 939).” (193 AD2d 1047-1048.)

II

Prisoners have the right to appeal disciplinary hearing determinations to the Commissioner under 7 NYCRR 254.8. No provision exists, however, concerning reconsideration of the Commissioner’s decisions. Notwithstanding the absence of explicit statutory or regulatory authority permitting respondent to reconsider an apparently final prior determination, we conclude that respondent acted properly in this case. As we have previously recognized, "this is a new area of the law in which some experimentation] must be expected and tolerated before workable rules are formulated” (Matter of Laureano v Kuhlmann, 75 NY2d 141, 149). In the absence of statutory or regulatory guidance, respondent is entitled to exercise some discretion in fashioning appropriate remedies (see, Arteaga v State of New York, 72 NY2d 212, 217 ["the Legislature has granted the Commissioner of Correctional Services broad discretion in the formulation and implementation of policies relating to security and to the disciplining of inmates”]).

We can discern no purpose that would be served by denying respondent the authority to reconsider its prior determination and to order a new hearing when the petitioner or the petitioner’s attorney expressly requests such relief. Moreover, there is no bar to the exercise of such authority. Respondent should not be discouraged from entertaining attorney requests to supplement pro se inmate appeals, as the participation of an attorney in the appeals process enhances the quality of advocacy and thereby assists respondent in efficiently identifying and correcting errors. Moreover, recognition of respondent’s authority to grant a new hearing at a petitioner’s express request provides for a moderate, practical alternative to either reversing and expunging or testing close cases in the courts. Such a rule comports with common sense and promotes judicial economy (cf., Holt v Board of Educ., 52 NY2d 625, 633 [common sense dictates that between extremes of permissiveness and strictness a more moderate option should be available in the administrative context]).

In this case, respondent’s reconsideration resulted in petitioner’s being afforded a full and fair opportunity to attend his hearing and to have his witnesses called. Any doubt as to petitioner’s refusal to attend the first hearing was resolved in his favor, thus obviating the need for further investigation into the alleged refusal to attend, a potentially difficult and time-consuming endeavor given the failure to preserve the videotape. Having received the relief he requested, petitioner cannot now be heard to complain.

Ill

We also disagree with the conclusion of the courts below that expungement was the required remedy in this case. Although remittal for a new hearing is not permitted where the record lacks substantial evidence to sustain a charge, in a case such as this one, where the petitioner expressly opted for reconsideration and a new hearing as the means of relief, expungement is not necessary.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

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

Order reversed, etc.