author: Titone, J.

text:
    [662 NE2d 773, 639 NYS2d 293]
    Federal Home Loan Mortgage Corporation, Plaintiff, v New York State Division of Housing and Community Renewal, Defendant.
    Argued November 30,1995;
    decided December 28, 1995

      POINTS OF COUNSEL

      Christopher P. Spera, of the Virginia Bar, admitted pro hac vice, and Fischbein, Badillo, Wagner, Itzler, New York City (Richard S. Fischbein, Kenneth G. Schwarz and Pamela A. Phillips of counsel), for plaintiff.
    I. The relevant statutes clearly show that the Rent Stabilization Law was never intended to apply to cooperatives. (8200 Realty Corp. v Lindsay, 27 NY2d 124; La Guardia v Cavanaugh, 53 NY2d 67; Fuentas v Shevin, 407 US 67; Rutherford v Greene’s heirs, 2 Wheat [15 US] 196; United States v Fisher, 2 Cranch [6 US] 358; De Kovessey v Coronet Props. Co., 69 NY2d 448; Seligman v Friedlander, 199 NY 373; Matter of Allen v Adami, 39 NY2d 275; FGL & L Prop. v City of Rye, 66 NY2d 111; Matter of Temkin v Karagheuzoff, 43 AD2d 820, 34 NY2d 324.) II. Division of Housing and Community Renewal’s construction of the Rent Stabilization Law should not be adopted because such a construction would raise significant constitutional questions. (FGL & L Prop. v City of Rye, 66 NY2d 111; United States v Delaware & Hudson Co., 213 US 366; Nollan v California Coastal Commn., 483 US 825; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Seawall Assocs. v City of New York, 74 NY2d 92, 493 US 976; C. G. Swackhamer, Inc. v P. F. L. Constr. Corp., 285 App Div 841; Matter of State Tax Commn. v Shor, 84 Misc 2d 161, 53 AD2d 814, 43 NY2d 151; Manocherian v Lenox Hill Hosp., 84 NY2d 385.)

      Dennis C. Vacco, Attorney-General, New York City (Gary R. Connor, Victoria Graffeo and Peter H. Schiff of counsel), for defendant.
    I. New York’s Rent Stabilization Law and Code apply to units in foreclosed cooperatives. (Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 NY2d 205; Ferres v City of New Rochelle, 68 NY2d 446; Matter of Hotel Assn. v Weaver, 3 NY2d 206; Manocherian v Lenox Hill Hosp., 84 NY2d 385; Matter of McMurray v New York State Div. of Hous. & Community Renewal, 135 AD2d 235, 72 NY2d 1022; Landreth Timber Co. v Landreth, 471 US 681; Chevron U. S. A. v National Resources Defense Council, 467 US 837; Minton v Domb, 63 AD2d 36; Rent Stabilization Assn. v Higgins, 83 NY2d 156.) II. Division of Housing and Community Renewal’s construction of the Rent Stabilization Law does not create a constitutional issue. (FGL & L Prop. Corp. v City of Rye, 66 NY2d 111; Yee v Escondido, 503 US 519; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Manocherian v Lenox Hill Hosp., 84 NY2d 385; Seawall As

      socs. v City of New York, 74 NY2d 92; Rent Stabilization Assn. v Higgins, 83 NY2d 156; Kaiser Aetna v United States, 444 US 164; Sheehan v County of Suffolk, 67 NY2d 52; Molina v Games Mgt. Servs., 58 NY2d 523.)

      Thacher Proffitt & Wood, New York City (Joseph Phillip Forte and Jean E. Burke of counsel), and William E. Cumberland, of the District of Columbia Bar, admitted pro hac vice, for Mortgage Bankers Association of America, amicus curiae.

    I. The New York City Council could not have intended the exemption from rent stabilization for cooperatives to expire after a foreclosure sale because such an interpretation would destroy the economic viability of the cooperative housing market and thereby undermine a fundamental purpose of the Rent Stabilization Law. (Ferres v City of New Rochelle, 68 NY2d 446; Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 82 NY2d 342; Milbrandt v Green Refractories Co., 79 NY2d 26; Matter of Long Is. Pine Barrens Socy. v Planning Bd., 78 NY2d 608; Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 NY2d 206; 8200 Realty Corp. v Lindsay, 27 NY2d 124.) II. Division of Housing and Community Renewal’s (DHCR) regulation does not have a rational basis and, therefore, is not a reliable guide for construing the Rent Stabilization Law. (Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657; Matter of Teachers Ins. & Annunity Assn. v City of New York, 82 NY2d 35; New York State Assn. of Counties v Axelrod, 78 NY2d 158.) III. DHCR’s interpretation of the Rent Stabilization Law is not entitled to deference because DHCR’s regulation is ultra vires. (Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; Two Assocs. v Brown, 127 AD2d 173, 70 NY2d 792; Matter of Jones v Berman, 37 NY2d 42; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Boreali v Axelrod, 71 NY2d 1; Matter of Picone v Commissioner of Licenses, 241 NY 157; Chiropractic Assn. v Hilleboe, 12 NY2d 109; Matter of Cornerstone Baptist Church v Rent Stabilization Assn., 55 AD2d 952; Perth Realty Co. v Dovoll, 79 Misc 2d 514.)

      Paul A. Crotty, Corporation Counsel of New York City {Pamela Seider Dolgow and John Hogrogian of counsel), for the City of New York, amicus curiae.

    A rental housing unit to which the Rent Stabilization Law applied before its conversion to cooperative ownership reverts to rent-stabilized status once it ceases to be held in cooperative ownership. 9 NYCRR 2520.11
      (1) explicitly requires that result. That regulation is consistent with the Administrative Code of the City of New York § 26-504, its authorizing statute. (Rent Stabilization Assn. v Higgins, 83 NY2d 156; Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Matter of Salvati v Eimicke, 72 NY2d 784; De Santis v White Rose Assocs., 152 Misc 2d 567.)

      Wolf Haldenstein Adler Freeman & Herz LLP, New York City (Stuart M. Saft of counsel), for Council of New York Cooperatives, amicus curiae.

    I. The facts in this case do not support plaintiffs position. II. The Rent Stabilization Law permits the DHCR to regulate rents in buildings regardless of whether they were once owned by cooperative housing corporations. (Lau Ow Bew v United States, 144 US 47; Minton v Domb, 63 AD2d 36; Matter of Vindigni v Altman, 40 AD2d 707; De Santis v White Rose Assocs., 152 Misc 2d 567.) III. The DHCR has the authority to issue regulations on postforeclosure rents. (Festa v Leshen, 145 AD2d 49; Matter of Legra v Division of Hous. & Community Renewal, 194 AD2d 677; Matter of Krakower v State of New York, Div. of Hous. & Community Renewal, 137 AD2d 688; Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Rent Stabilization Assn. v Higgins, 83 NY2d 156; Matter of Ansonia Residents Assn. v Division of Hous. & Community Renewal, 75 NY2d 206; Matter of Salvati v Eimicke, 72 NY2d 784; Boreali v Axelrod, 71 NY2d 1.)

      Sandra Russo, New York City, David Robinson and White & Case (William A. Schoneman of counsel), for Legal Services for New York City and others, amici curiae.

    Rent stabilization clearly applies to foreclosed cooperatives. (Matter of Smathers, 309 NY 487; Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114; Sega v State of New York, 60 NY2d 183; De Santis v White Rose Assocs., 152 Misc 2d 567; De Kovessey v Coronet Props. Co., 69 NY2d 448; Rent Stabilization Assn. v Higgins, 83 NY2d 156; Manocherian v Lenox Hill Hosp., 84 NY2d 385; Yee v Escondido, 503 US 519; Nollan v California Coastal Commn., 483 US 825; C. G. Swackhamer, Inc. v P. F. L. Constr. Corp., 285 App Div 841.)
   OPINION OF THE COURT

Titone, J.

On a question certified to this Court from the Second Circuit Court of Appeals, we are asked to determine whether a multiple dwelling exempt from the Rent Stabilization Law by virtue of its cooperative ownership reverts to its former rent-regulated status upon foreclosure. Relying on the plain language of the Rent Stabilization Law, we answer that question in the affirmative, and reject plaintiffs claims that reversion to regulated rent constitutes an unconstitutional physical or regulatory taking or a due process deprivation.

I

Plaintiff, the Federal Home Loan Mortgage Corporation (FHLMC), is a Federal corporation chartered as part of the Emergency Home Finance Act of 1970 (12 USC §§ 1451-1459). Its statutory mission is to foster home ownership by increasing the amount of financing available to the residential mortgage market. To achieve this goal, FHLMC generally purchases investment-quality mortgages from primary lenders, and sells them to investors as securities packages. Defendant, the New York State Division of Housing and Community Renewal (DHCR), is the State agency charged with administering and enforcing the rent-regulatory laws of New York City and State.

In July 1986, plaintiff became the assignee of a $1.45 million mortgage on an 83-unit multiple dwelling located in Brooklyn, New York. There is no dispute that at that time the building was a rental housing accommodation subject to regulation under the New York City Rent Stabilization Law (RSL) (see, Administrative Code of City of NY § 26-501 et seq.).

The building was subsequently converted to cooperative ownership, and title to the building passed from the sponsor to a cooperative apartment corporation. Although FHLMC had the right to demand that its mortgage be satisfied upon the conversion, it elected not to do so, and approved the conversion. In compliance with the Martin Act (see, General Business Law § 352-eeee), a cooperative offering plan setting forth the terms of the offering was submitted to and approved by the New York State Department of Law, was accepted for filing by the Attorney-General, and was also provided to all tenants who occupied the building. Existing tenants were given the option to purchase the shares allocated to their respective units, and tenants who chose to purchase were issued long-term proprietary leases that superseded their existing leases. The offering plan was expressly made subject to the underlying mortgage held by plaintiff and a wrap-around mortgage of $2 million held by the sponsor.

Of the building’s 83 units, 3 were purchased by existing tenants, and 17 were purchased by outsiders. Because the offering plan was a "non-eviction plan” as defined in the Martin Act (see, General Business Law § 352-eeee [1] [b]), the rents of the 63 apartments occupied by existing tenants who declined the purchase option remained regulated by the RSL. These units are not the subject of this appeal.

The cooperative apartment corporation defaulted on the mortgage and FHLMC foreclosed and purchased the property at a public foreclosure sale. Upon foreclosure, the proprietary leases were cancelled. The purchasers ceased ownership of their allocable shares, but remained liable on the personal loans acquired to purchase those shares.

Since the foreclosure sale, FHLMC has failed to collect rent and has declined to provide renewal leases to the former purchasers and to tenants who took occupancy after the conversion. FHLMC cites its lack of expertise in operating a multiple dwelling and inability to ascertain the proper rent to charge for the units as justification for those omissions.

Plaintiff commenced this declaratory judgment action in Federal District Court, seeking a ruling as to whether, upon dissolution of the cooperative corporation, the units of former purchasers and tenants who moved in after the conversion are subject to rent regulation. Ruling in defendant’s favor on the parties’ cross motions for summary judgment, the court declared that "upon the demise of the cooperative, the building reverted to rent regulatory status.” (854 F Supp 151, 165.) In so holding, the District Court concluded that section 2520.11 (l) of the Rent Stabilization Code, which provides that cooperatives are exempt from regulation under the RSL "so long as they maintain [cooperative] status” (9 NYCRR 2520.11 [l]), is consistent with the RSL’s exemption of cooperatively-owned multiple dwellings, which is lost when the property returns to rental status. Relying on this Court’s holding in Rent Stabilization Assn. v Higgins (83 NY2d 156), the court concluded that plaintiff’s acquiescence in the use of the building as a multiple dwelling defeated the claim that return of the units to regulated status constituted an unconstitutional physical taking. Finding a " 'sufficiently close nexus’ between New York’s interest in protecting the former proprietary lessees from potentially unconscionable rent increases and the regulation at issue” (854 F Supp, at 163), the court found that the statute advanced a legitimate State interest, and thus did not effect an unconstitutional regulatory taking. The court also rejected plaintiff’s claim that the statute and regulation were unconstitutionally vague, reiterating that the statute and regulation alike clearly notify a person of ordinary intelligence that "the exemption from rent regulation applies only to buildings 'not owned as a cooperative’ 'for so long as’ the buildings maintain that status.” (854 F Supp, at 164.)

On appeal, the Second Circuit certified the following question to this Court: "[W]hether, in light of [Federal Home Loan Mortgage Corporation’s] challenge to 9 N.Y.C.R.R. 2520.11 ([l]), units in a rent stabilized building that was converted to cooperative ownership revert to units subject to the Rent Stabilization Law, upon the foreclosure of the cooperative’s underlying mortgage and the return of the building to operation as rental housing”? We accepted the question, which is case-determinative and not controlled by precedent (see, Rules of Court of Appeals 22 NYCRR 500.17), and now answer in the affirmative.

II

Our point of departure is the RSL (Administrative Code §§ 26-50126-520), which governs the regulation of rents for eligible housing units in New York City. The RSL was originally enacted in response to "a severe housing shortage following World War II” and has been "periodically extended” by the Legislature as it perceives a continuing need (Rent Stabilization Assn. v Higgins, 83 NY2d 156, 164-165, cert denied — US —, 114 S Ct 2693, supra). "The central, underlying purpose of the [Rent Stabilization Law] is to ameliorate the dislocations and risk of widespread lack of suitable dwellings” that accompany a housing crisis (Manocherian v Lenox Hill Hosp., 84 NY2d 385, 395-396). Noting their remedial nature, this Court has repeatedly interpreted laws regulating rents broadly to effectuate their intended purpose (see, e.g., Braschi v Stahl Assocs. Co., 74 NY2d 201, 208; Matter of McMurray v New York State Div. of Hous. & Community Renewal, 72 NY2d 1022, 1024).

By its terms, the Rent Stabilization Law applies to "Class A multiple dwellings not owned as a cooperative * * * containing six or more dwelling units which * * * were completed after February [1, 1947]” (Administrative Code § 26-504 [emphasis added]). Defendant DHCR, the agency that has been delegated the "broad mandate to promulgate regulations in furtherance of the rent control and rent stabilization laws” (Higgins, 83 NY2d, at 168, supra), has provided in the Rent Stabilization Code (the Code) that its protections apply to all housing accommodations regulated under the RSL except "housing accommodations contained in buildings owned as cooperatives” "/or so long as they maintain [cooperative] status” (9 NYCRR 2520.11 [l] [emphasis added]). The clear import of this regulation is that once a cooperative reverts to rental status, it is again subject to the RSL’s provisions.

Accordingly, the initial question raised here is whether 9 NYCRR 2520.11 (1), promulgated by defendant DHCR under its rule-making authority, is consistent with the RSL’s exemption for cooperatives. More specifically, plaintiff contends that the absence of any express provision in the RSL directing that the units of a cooperative revert to regulated status upon foreclosure entitles the units to continue to enjoy the benefits of the cooperative exemption. Accordingly, plaintiff argues that the language of DHCR’s regulation limiting the exemption for cooperatives for only "so long as” that type of ownership is maintained impermissibly restricts what is designed to be a permanent statutory exemption for cooperatively owned units.

The plain language of the RSL defeats plaintiff’s proffered analysis. The RSL provides in clear terms that a building otherwise eligible for rent stabilization is exempt from such regulation if "owned as a cooperative.” It follows from the terms of this exemption "that as soon as a multiple dwelling is no longer owned as a cooperative, the Rent Stabilization Law and Code again automatically become applicable to it” (De Santis v White Rose Assocs., 152 Misc 2d 567, 571). In other words, a dissolved cooperative is not a cooperative and thus is not entitled to an exemption under the RSL.

Indeed, upon foreclosure, the condition that warranted the exemption — cooperative ownership — was removed. The statute again has ready application to the building, which is presently a rental property that meets all of the other requirements for regulation. There is no indication that the statute seeks to regulate the building based on anything other than its current status. The statute’s silence on the effect of a foreclosure on a formerly exempt cooperative does not change the analysis. Nothing in the statute’s language suggests that the temporary existence of a condition that qualifies the building for exemption operates to permanently remove the building from regulatory oversight and forever relinquish the rights of tenants to the protections of the emergency rent laws. Consistent with the treatment of other regulatory exemptions, once the reason for the exemption expires or is removed, the building should be treated as all other like buildings subject to regulation (cf., Wilson v One Ten Duane St. Realty Co., 123 AD2d 198, 201 [building formerly exempt from regulation because not used as housing accommodation became subject to regulation after rehabilitated to contain seven housing units]; Matter of Vindigni v Altman, 40 AD2d 707 [exemption for single-family use lost upon resumption of multifamily use]; Gandler v Rosado, 138 Mise 2d 740 [increase from five to six units in loft building subjects building to rent stabilization]). Indeed, such a construction would be inconsistent with the overarching goal of the regulatory scheme, which is to protect tenants — who would otherwise be vulnerable to New York City’s housing crisis— from eviction and spiraling rents. Accordingly, the RSL and the challenged regulation are uniform in effect — the building is exempt for "so long as” it maintains cooperative status — and defendant has not exceeded its rule-making authority in promulgating the regulation.

Ill

Plaintiff urges that serious constitutional takings and due process concerns arise if the units of a foreclosed cooperative revert under the RSL and the Code to regulated status. We perceive no such constitutional infirmities.

We are unpersuaded by plaintiff’s argument that renewed application of the RSL forces it to accept rent-regulated tenants and thus violates the Constitution’s prohibitions against physical takings. An unconstitutional physical taking is effectuated where *'[governmental action * * * compels an owner to endure a permanent physical occupation of its property” (Rent Stabilization Assn. v Higgins, 83 NY2d 156, 171, supra; Yee v Escondido, 503 US 519, 522-524). In Higgins, this Court ruled that, notwithstanding the fact that rent regulations enlarging the class of family members entitled to rent protection may have potentially required the owner to rent to a stranger, no new use of the property was being forced upon the owner, and thus no physical occupation of the property had occurred (id., at 172).

Similarly, here, plaintiff FHLMC voluntarily purchased the occupied building and acquiesced in its use as rental housing. Plaintiff chose not to demand full payment of its loan upon conversion of the premises to noneviction cooperative ownership, although it had the option to do so. At that time, the RSL and Code provisions were in effect and gave clear notice that upon loss of cooperative status the building would be subject to rent regulation. Plaintiff again acquiesced in this use of the property when it bought the building at foreclosure with knowledge that it was occupied and to be operated as a rental accommodation. Indeed, the essence of plaintiffs dispute is not that it is being forced to use the property in a new or undesirable manner, but that the rent it charges and terms of the rental leases should be market-based and not subject to regulation under the RSL. Under these circumstances, no new use of the property has been forced upon plaintiff, and no unconstitutional physical taking has been effectuated (cf., Seawall Assocs. v City of New York, 74 NY2d 92).

Nor will a regulatory taking result. The legal framework for finding a regulatory taking is well settled in this State. As we recently reiterated in Manocherian v Lenox Hill Hosp. (84 NY2d 385, supra), regulation of private property rises to the level of an unconstitutional taking if the regulation (1) denies the owner all economically viable use of the property or (2) does not substantially advance a legitimate State interest (id., at 392, quoting Seawall Assocs. v City of New York, 74 NY2d 92, supra). Focusing on the second prong of the test, plaintiff contends that no legitimate State interest is substantially served by granting the protections of the RSL to former proprietary lessees of a failed cooperative corporation. Specifically, plaintiff equates this "special treatment” of the former shareholders to the special protections granted to hospitals that this Court found objectionable in Manocherian (supra). No such analogy should be made.

The statute at issue in Manocherian operated to protect hospitals, who were nonoccupying tenants of record, by granting the hospitals renewal leases based on the occupancy of subtenants, who were hospital employees. This legislation resulted in near-perpetual occupation of the property by the hospitals and provided no true eviction protection to the real tenants, who could be effectively evicted upon termination of their employment with the hospital. The Court concluded that this scheme did not substantially advance a legitimate State interest because in aiding hospitals to give a fringe benefit — housing — to its employees, it directly contravened two of the key goals of rent regulation — "occupant protection and eventual market redemption” (84 NY2d, at 394).

Here, the RSL and the Code do not purport to give former shareholders of failed cooperative corporations special treatment. Regardless of prior status, upon foreclosure the building is simply treated in the same manner as other New York City housing accommodations that are regulated under the RSL and former proprietary lessees become renters in a market that is plagued by a housing emergency. They are given no further protections than other similarly situated tenants threatened with the loss of their homes, and the same legitimate State interests served by application of the RSL in a housing shortage — "preventing eviction and resulting vulnerability to homelessness of the identified beneficiaries” — are advanced here {Higgins, 83 NY2d, at 174). Indeed, we perceive no reason why these tenants should be penalized because of their prior status as shareholders in a failed cooperative.

Given our conclusion that the RSL and the Code have plain and uniform application to a cooperative upon its demise, there is also no merit to plaintiffs contention that the law is unconstitutionally vague because it gives no notice to lenders that reversion to rent-regulated status is possible. Plaintiff claims that no such reversion was ever intended by the Legislature because no precise regulatory provision explains how rents are to be calculated for such units upon reversion to rent-regulated status. Contrary to plaintiffs contention, the regulations provide several viable mechanisms for setting the initial rent, including a "catchall” or default provision, which applies the "rent reserved in the last effective lease” where no other specific measure applies (Administrative Code § 26-512 [b] [3]). Should that formula prove unworkable, section 2522.6 of the Code provides that where the rent to be charged is unknown, DHCR may make such determination upon written request (see, 9 NYCRR 2522.6 [a]). In any event, the absence of an express provision detailing the method for setting the initial rent after foreclosure of a cooperative does not negate the otherwise clear application of the RSL and Code to this now noncooperatively owned building.

Nor does reversion to rent stabilization lead to an absurd or unworkable result, as plaintiff contends. The prospective lender, having clear notice of the regulatory impact, is capable of governing its methods of financing cooperatives accordingly to factor in the possibility of reversion to rent regulation upon foreclosure. Indeed, present application of the RSL to this building is sound. Cooperatives and condominiums are exempted from this type of rent regulation because they are not operated for profit and thus do not give rise to the same need for tenant protections (Minton v Domb, 63 AD2d 36, 39). Once the building is no longer so operated, and profit is restored as the owner’s goal, the threats justifying regulation in a housing shortage are revived. Thus, application of the rent regulatory laws to the currently eligible units of this building is necessitated by the fact that a housing emergency has been deemed to exist in New York City and tenants are eligible for protections from spiraling rents (Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 NY2d 206, 216).

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

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

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 affirmative.

      . Pursuant to 12 USC § 1452 (f), the United States District Courts have original jurisdiction over civil actions in which FHLMC is a party.

      . An exception for cooperatives has been included in the Rent Stabilization Law since its inception in 1969 (see, Administrative Code, former ch 51, tit YY).

      . Section 2522.6 (a) provides that "[w]here the legal regulated rent or any fact necessary to the determination of the legal regulated rent is in dispute between the owner and the tenant, or is in doubt, or is not known, the DHCR at any time upon written request may issue an order in accordance with the applicable provisions of this Code determining the facts, including the legal regulated rent.”

      . Plaintiff contends that lenders generally rely on the enhanced value afforded cooperatives by virtue of their exclusion from rent regulation in valuing them for financing purposes and that the possibility of reversion to rent-stabilized status will cause a loss of incentive to invest in such properties. According to plaintiff, foreclosure "is precisely when the value of the lender’s collateral becomes relevant.” While the problems identified by plaintiff are not to be underestimated, such policy considerations must be addressed to the Legislature. Indeed, an equally compelling argument can be made on behalf of the tenants, who, as a result of the foreclosure, not only remain obligated to pay their rents, but also must repay the money they borrowed to purchase their units.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    [662 NE2d 779, 639 NYS2d 299]
    In the Matter of Andrew P. DeTroia et al., Appellants, v Joseph Schweitzer et al., Constituting the Zoning Board of Appeals of the Village of Farmingdale, Respondents.
    Argued October 17, 1995;
    decided January 16, 1996

      POINTS OF COUNSEL

      Anthony B. Tohill, P. C., Riverhead (Anthony B. Tohill of counsel), for appellants.
    I. The subject parcel is entitled on this record to a building permit as of right. (Matter of Allen v Adami, 47 AD2d 922, 39 NY2d 275; Matter of Mandalay Constr. v Eccleston, 9 AD2d 918; Matter of Bexson v Zoning Bd. & Appeals, 28 AD2d 848; Matter of Dittmer v Epstein, 34 AD2d 675; Matter of Mackay v Mayhall, 92 Misc 2d 868; Modular Homes Corp. v Combs, 115 AD2d 527; Matter of Kast v Casey, 129 AD2d 641; Matter of Freihofer v Lake George Town Bd., 147 AD2d 865; Matter of M.E.F. Bldrs. v Siegel, 162 AD2d 533; Matter of Pateman v Zoning Bd. of Appeals, 191 AD2d 568.) II. Respondent Zoning Board’s interpretation of the exceptions clause is irrational and unreasonable. (Appelbaum v Deutsch, 66 NY2d 975; Jennings v Kern, 134 Misc 2d 590; Euclid v Ambler Co., 272 US 365; Matter of Van Perlstein v Oakley, 203 AD2d 853; McDermott v Rose, 148 AD2d 615; Matter of Long Is. Land Research Bur. v Young, 7 Misc 2d 469; Matter of Mandalay Constr. v Eccleston, 9 AD2d 918; Matter of Ellington Constr. Corp. v Zoning Bd., 77 NY2d 114.)

      James L. Breen, Farmingdale, for respondents.
    I. Notwithstanding the fact that petitioners’ lot was held in "single and separate” ownership, petitioners are not entitled to a building permit as a matter of right. (Matter of Allen v Adami, 39 NY2d 275; Matter of Tommy & Tina v Department of Consumer Affairs, 117 Misc 2d 415, 95 AD2d 724, 62 NY2d 671; Matter of Huntington TV Cable Corp. v State of New York Commn. on Cable Tel., 94 AD2d 816, 61 NY2d 926; Taylor v Foley, 122 AD2d 205; Matter of Readers Digest Assn. & Subsidiaries v State Tax Commn., 103 AD2d 926; Matter of Elm St. Assocs. v Sniado, 159 AD2d 570; Matter of Charles v Ryan, 126 Misc 2d 333; Matter of Fuhst v Foley, 45 NY2d 441; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309.) II. Respondents’ decision denying petitioners’ application for a building permit was not arbitrary and capricious and was supported by substantial evidence. (Matter of Gonzales v LeFevre, 105 AD2d 909; Matter of Scharaga v Board of Zoning Appeals, 175 AD2d 209; Matter of Fischer v Markowitz, 166 AD2d 444; Stengel v Woodstock Zoning Bd. of Appeals, 155 AD2d 854; Matter of Cohen v Hahn, 155 AD2d 969; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Burgos v Coughlin, 108 AD2d 194; Matter of Stork Rest. v Boland, 282 NY 256; Matter of Miller v Kling, 291 NY 65; Matter of Testa v Wickham, 51 Misc 2d 968, 28 AD2d 780.)
   OPINION OF THE COURT

Levine, J.

Appellants are the owners of a vacant lot situated in a residence AA zoning district in the Village of Farmingdale, Nassau County. The lot has remained in an individual ownership, separate from any adjoining lots, at least since 1899, and had that status on December 7, 1942, when the first Farmingdale Zoning Ordinance was enacted. The Zoning Ordinance, as amended in 1959 and 1988, provided for building restrictions on dimensionally substandard lots in an AA zoning district as follows:

"Lot area.
"No principal building and accessory buildings shall be erected upon a lot that has a street frontage and minimum lot width at the front and rear wall of the principal building of less than seventy-five (75) feet and a lot area of less than seven thousand five hundred (7,500) square feet (Code of Village of Farmingdale § 105-39).”

The Zoning Ordinance, however, contains a "single and separate ownership” clause (see, 1 Anderson, New York Zoning Law and Practice § 9.43, at 473 [3d ed]) providing for the relief of lots which became substandard as a result of the subsequent adoption of zoning restrictions:

"Existing nonconforming lots.
"Any plot smaller in area than herein required in which the ownership at the time of the adoption of this ordinance differs from the ownership of all adjoining plots may be improved with buildings which shall comply so far as practicable with the provisions of this ordinance (Code of Village of Farmingdale § 105-154).”

Appellants’ lot has a frontage and width of 63.55 feet and an over-all area of 10,804 square feet. In March 1991, they applied for a building permit to construct a single-family residence on their property. Their lot is subject to various covenants and restrictions preventing any development of the property other than construction of a single-family residence. Appellants claimed entitlement to a building permit without applying for and being granted a variance from the dimensional requirements of Village Code § 105-39 under the single and separate ownership exemption of the Zoning Ordinance. However, the Village Zoning Board of Appeals (ZBA), to whom the matter was referred, denied their permit application without explanation. After appellants commenced this proceeding to challenge that determination, the ZBA rendered a decision that the single and separate ownership exemption only applied to lots substandard in total square footage area, not as to width and frontage. The ZBA, thus, ruled that, since the total area of appellants’ lot exceeded the minimum of 7,500 square feet in section 105-39, they were not entitled to the exemption, notwithstanding that the lot was rendered substandard by subsequently enacted minimum frontage and width restrictions.

Supreme Court rejected the ZBA’s restrictive interpretation of the single and separate ownership exemption and annulled its denial of appellants’ building permit application. The Appellate Division reversed, on the ground that the ZBA’s determination had a rational basis (206 AD2d 370). We now reverse, concluding that the ZBA’s narrow construction of the single and separate ownership exemption in the Zoning Ordinance is unsupportable.

As quoted above, the ordinance sets forth all minimum dimensional requirements (frontage, width and square footage) for building lots under the generic heading "Lot area”. The ZBA’s interpretation violates the canon of construction that "a term of greater comprehension includes a lesser term. The axiom that the whole includes all of its parts is properly applied in the construction of statutes” (McKinney’s Cons Laws of NY, Book 1, Statutes § 237, at 403). Under that canon of construction, the reference to a "plot smaller in area” (Code of Village of Farmingdale § 105-154 [emphasis supplied]) in the single and separate ownership exemption, rather than specifying an exemption based solely in terms of square feet, should be interpreted as subsuming all of the dimensional restrictions included in "Lot area” under section 105-39.

The ZBA’s confined interpretation also manifestly undermines the purpose of the single and separate ownership exemption and gives rise to arbitrary and inconsistent applications of it. The purpose of single and separate ownership exception clauses to zoning amendments is to protect long-term property owners from amendments that render useless their previously conforming property, thus preventing restrictive zoning ordinances from having a possible unconstitutional confiscatory effect. These exemptions are a part of most zoning codes, and they serve an important and fair purpose (see, 1 Anderson, New York Zoning Law and Practice § 9.43, at 472-479 [3d ed]). Farmingdale’s exception provision is typical. Indeed it is indistinguishable from the "representative provision” cited by Anderson (op. cit., at 473) insofar as both that provision and Farmingdale’s Code § 105-154 use the generic inclusive term "area” rather than merely specify particular components of area. Under such typical provisions "when the frontage or area restrictions become effective * * * the owner of a substandard lot need not seek a variance. He is entitled as of right to an exception” (Anderson, op. cit., at 473 [emphasis supplied]).

Here, the ZBA’s narrow interpretation of the exception provision frustrates the ameliorative purpose of the ordinance. Lots rendered substandard as to width or frontage by a zoning ordinance are deprived of value in the same way as ones rendered deficient as to square footage. Under the Board’s interpretation, however, the exception clause is only effective to prevent restrictive zoning amendments from having a possible confiscatory effect if the land is deficient in square footage; property owners whose land is sufficient in square footage but deficient in other components of area, i.e., width and or frontage, are unprotected. No rational purpose is served, and none is cited by the ZBA, by giving lots rendered nonconforming as to frontage and width and square footage automatic exemptions, but excluding previously conforming lots rendered nonconforming only as to width or frontage. Thus, the ZBA’s interpretation arbitrarily forces landowners such as petitioners into litigation to protect their rights, despite an ordinance designed to protect them as a matter of course. The ordinance should be interpreted to avoid this objectionable, absurd, anomalous and unjust result (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 141, 143,145, 146).

Finally, the ZBA’s interpretation violates the rule of construing zoning ordinances enunciated by this Court, which we have already applied in construing a single and separate ownership exception provision: "Any ambiguity in the language used in such regulations must be resolved in favor of the property owner” (Matter of Allen v Adami, 39 NY2d 275, 277). Thus, the ZBA incorrectly construed the meaning of the term area— whether it means only square footage or the dimensional components of length and width in addition to square footage — against the landowner. Because the ZBA’s construction arbitrarily undermines the purpose of the clause, promotes unconstitutional takings, and violates established rules of construction, it should not stand.

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

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

Order reversed, etc.


author: Smith, J.

text:
    [662 NE2d 782, 639 NYS2d 302]
    In the Matter of Shahid U. Khan, Respondent, v Zoning Board of Appeals of the Village of Irvington et al., Appellants.
    Argued October 17, 1995;
    decided January 16, 1996

      POINTS OF COUNSEL

      Plunkett & Jaffe, P. C., White Plains (Kevin J. Plunkett and
      Elizabeth S. Torkelsen of counsel), for appellants.
    I. Petitioner is not entitled to an exemption. (Matter of Pateman v Zoning Bd. of Appeals, 191 AD2d 568, 82 NY2d 735.) II. The Court below erred in concluding that respondent had a vested right to use the subject parcel for residential purposes. (Shepard v Village of Skaneateles, 300 NY 115; Reichenbach v Winward at Southhampton, 80 Mise 2d 1031, 48 AD2d 909, 38 NY2d 912; People v Miller, 304 NY 105; Town of Lloyd v Kart Wheelers Raceway, 28 AD2d 1015; Matter of Budget Estates v Roth, 203 AD2d 287; Matter of Licari v Scheyer, 193 AD2d 604; Matter of Wiggin v Kern, 161 AD2d 716; Matter of Sakrel, Ltd. v Roth, 176 AD2d 732, 182 AD2d 763; Matter of Hansen v Zoning Bd. of Appeals, 158 AD2d 689.)

      Richard T. Blancato, Tarrytown, for respondent.
    I. The Zoning Ordinance fails to adequately protect the owners of substandard lots. (Matter of Dittmer v Epstein, 34 AD2d 675; Matter of Long Is. Land Research Bur. v Young, 7 Misc 2d 469; Matter of Mandalay Constr. v Eccleston, 9 AD2d 918; Matter of Craig v Zoning Bd. of Appeals, 50 AD2d 887, 41 NY2d 832; Matter of Mackay v Mayhall, 92 Misc 2d 868.) II. Respondent is entitled to a variance as a matter of right. (Modular Homes Corp. v Combs, 115 AD2d 527; Matter of M.E.F. Bldrs. v Siegel, 162 AD2d 533; Matter of Ewers v Zoning Bd. of Appeals, 165 AD2d 873; Matter of Pateman v Zoning Bd. of Appeals, 191 AD2d 568, 82 NY2d 735.) III. Even assuming, arguendo, that respondent is required to show proof of significant economic injury, he has submitted ample proof of same. (Matter of Fuhst v Foley, 45 NY2d 441; Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105; Matter of Bullock v Zoning Bd., 168 AD2d 730; Matter of Siciliano v Scheyer, 150 AD2d 460.)
   OPINION OF THE COURT

Smith, J.

Respondent Khan sought to construct a residence on property that was made subject to environmental zoning regulations soon after he bought it. The primary issue in this case is whether a separate ordinance which provides an exemption from zoning regulations for property held in single and separate ownership gave respondent a right to build in spite of the new environmental zoning regulations. Because we determine that the ordinance providing the exemption here does not apply to the zoning regulation at issue designed to protect property from the effects of floods, we reverse.

Respondent, Shahid U. Khan, seeks, pursuant to CPLR article 78, to vacate and annul a decision by appellant, Zoning Board of Appeals of the Village of Irvington (hereinafter ZB A), which denied respondent’s request for issuance of a building permit or, in the alternative, a variance. Respondent is the owner of two parcels (both improved and unimproved) of real property (Tax Map Sheet 10B, Block 229, Lots 83, 84, 85 and portions of 81 and 82) located in the Village of Irvington, Westchester County, New York. The two parcels were purchased on January 27, 1989, under a single contract of sale with two separate deeds. No apportionment of the purchase price was made between the two parcels by the parties or the contract. However, the valuation of the two parcels for transfer tax purposes was $270,000 for the improved parcel and $10,000 for the unimproved parcel. Respondent acquired the unimproved parcel in his name only and acquired the parcel improved with a single-family dwelling jointly with his wife. The improved parcel is not in issue here. Both parcels were held by the previous owners as one lot. Respondent divided the parcels in order to build on the unimproved property and sell it.

Both parcels are located in a single-family zoning district requiring that lots have a minimum area of 5,000 square feet. The unimproved parcel has 5,202 square feet. Under the Village’s zoning ordinance, the transfer of the subject property, as divided, created a legal building lot separate from the adjoining parcel without the requirement of subdivision approval (Village of Irvington Zoning Ordinance § 47-52), as each lot had the required frontage on an existing improved public street.

On January 30, 1989, after the purchase and division of the two parcels, respondent applied for a building permit to construct a house on the unimproved parcel. Respondent was informed that because the subject property was located in a "flood plain area,” before a building permit could be issued, he had to apply for a development permit or variance from the Village Board of Trustees under chapter 19 of the Village Code.

On February 28, 1989, approximately one month after respondent purchased the subject property, the Board of Trustces amended the Village of Irvington Zoning Ordinance with the enactment of the "Resource Protection” regulations. The purpose of these regulations was to protect environmentally sensitive areas such as wetlands, watersheds and flood plains. The Resource Protection regulations limited development and restricted new construction on environmentally sensitive areas within the Village. Included within the regulations are all land located on a flood plain, wetlands, watershed land and steep slopes. Under the Resource Protection regulations, the Village’s Planning Board determines the "net buildable site area” by subtracting the "base site area” from the "resource protection land”.

The Planning Board determined that respondent’s "net buildable site area” under the Resource regulation’s formula was "zero” as the entire parcel was located in a flood plain (record on appeal, at 45). On March 29, 1989, respondent applied to the ZBA (1) for a favorable interpretation of the zoning ordinance applicable to single and separate ownership (Village Zoning Ordinance § 47-5.D) or (2) for an area variance. At the May 23, 1989 meeting of the ZBA, respondent appeared with his attorney and his architect. Respondent contended that he had a constitutional right to build a residence on the property, that he would add fill to prevent flooding, and that the property with a house would have a value of $100,000 and without a house, a value of only $10,000. Opposition to the application included assertions of a risk of increased flooding to nearby properties caused by the new construction, destruction of the aesthetic value of the area and an increase in traffic congestion.

On August 15, 1989, after additional argument, the ZBA concluded that section 47-5.D was inapplicable to the facts here because it applied only to upzoning, that is, to the size requirements for building on property. It concluded further that because the subject property was, before and after the enactment of the Resource regulations, located entirely within a flood plain area, a variance under chapter 19 of the Village’s prior zoning regulations was required. In addition, the ZBA stated that because respondent had failed to demonstrate practical difficulties, no variance was warranted.

Respondent commenced an article 78 proceeding seeking annulment of the ZBA’s determination and an order directing issuance of a building permit or variance. Supreme Court dismissed the petition, concluding that the ZBA properly denied petitioner’s request for a favorable interpretation of section 47-5.D, as that section was enacted to protect owners of property in single and separate ownership from the consequences of "upzoning.” The court found the Resource regulations were not part of the minimum width and area requirements of the zoning ordinance. The court further found the ZBA’s denial of respondent’s request for a variance a reasonable exercise of its discretion and supported by the record. The Supreme Court rejected respondent’s argument of an unconstitutional taking, finding respondent failed to offer proof of the property’s market value when it was acquired as compared to the value after enactment of the ordinance.

The Appellate Division reversed, annulled the determination of the ZBA and directed the ZBA to grant respondent’s application and issue a variance. The Appellate Division held that since respondent owned the subject property in single and separate ownership prior to enactment of the ordinance rendering it nonconforming, respondent had a vested right to use the property for residential purposes.

Appellant ZBA argues that respondent is not entitled to an exemption under section 47-5.D of the Zoning Ordinance and that the Appellate Division erred in concluding that respondent has a vested right to use the subject parcel for residential purposes.

Some of the courts of this State have recognized a common-law right to an exemption from minimum area ordinances where the property was held in single and separate ownership before an ordinance’s adoption and was rendered substandard as a result of the ordinance (see, Matter of Bateman v Zoning Bd. of Appeals, 191 AD2d 568, appeal dismissed 82 NY2d 735; Matter of Morin v Zoning Bd. of Appeals, 163 AD2d 389; Matter of M.E.F. Bldrs. v Siegel, 162 AD2d 533; Cange v Scheyer, 146 AD2d 594; Modular Homes Corp. v Combs, 115 AD2d 527; Matter of Mackay v Mayhall, 92 Misc 2d 868; see also, Matter of Ewers v Zoning Bd. of Appeals, 165 AD2d 873; Matter of Scavone v Volz, 34 AD2d 966). Based on constitutional concerns about confiscatory takings and using concepts borrowed from the nonconforming use doctrine (see, Matter of Dittmer v Epstein, 34 AD2d 675; Matter of Bexson v Board of Zoning & Appeals, 28 AD2d 848, affd 21 NY2d 961; Matter of Mandalay Constr. v Eccleston, 9 AD2d 918; see also, Matter of Long Is. Land Research Bur. v Young, 7 Misc 2d 469), the "single and separate ownership” doctrine that has been applied in the lower courts holds that when certain criteria are satisfied, the owner of what was once a buildable lot is entitled to use it for residential purposes notwithstanding a contrary area restriction and that, accordingly, the owner must be issued a variance as a matter of right and without regard to economic injury, self-imposed hardship or the possibility of a sale (see, Matter of Pateman v Zoning Bd. of Appeals, supra; Matter of M.E.F. Bldrs. v Siegel, supra; Modular Homes Corp. v Combs, supra). Significantly, the doctrine has never been explicitly recognized by this Court.

Having examined the case law, we now conclude that there is no need for a common-law rule to protect landowners who possess parcels in "single and separate ownership” situations, and, accordingly, we decline to adopt such a rule. A municipality may in the reasonable exercise of its police powers change its zoning to control land use and development. A municipality that chooses to make such changes may, but need not, exempt existing owners of substandard lots from the changes’ more onerous effects. As one of several ways to accomplish this, a municipality may provide through its ordinance for exemptions for property that is held in single and separate ownership. In the usual case, such exemptions are self-executing and no application to the local Zoning Board of Appeals is necessary. In contrast, where the municipality has not created an exemption as a matter of legislative grace, the property owner can ordinarily utilize the local provisions for obtaining a variance. Failing that, an owner who perceives himself or herself aggrieved can bring a judicial proceeding alleging an unconstitutional taking or some governmental arbitrariness in the denial of a variance. Since the owner’s constitutional rights are amply protected by the availability of such proceedings, there is no legal basis for overriding the municipality’s legislative choice by creating a separate common-law right that would automatically exempt property owners from area restrictions without an individualized assessment of hardship.

In this case, the single and separate ownership exemption found in Irvington Village Zoning Ordinance § 47-5.D is inapplicable. The ordinance limits an exemption by its terms and provides that nonconforming or substandard property may be exempt from minimum lot or area regulations where its ownership was different from that of any adjoining land on the effective date of the ordinance and is still so owned at the time of the request for a building permit. As such, it is similar to ordinances generally used for property held in "single and separate ownership” or "grandfather-clause” type provisions for zoning regulations involving substandard lots (see, 1 Anderson, New York Zoning Law and Practice § 9.43, at 472-479 [3d ed]). The ordinance relates to area and width and has no application here where Resource Protection regulations were designed to protect property against floods.

Thus, in order to prevail, respondent would have to show entitlement to a variance almost as a matter of law since a Zoning Board’s determination must be upheld if it is rational and supported by substantial evidence (Matter of Fuhst v Foley, 45 NY2d 441, 444; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314).

Respondent’s burden turns on whether a use or area variance is at issue. Generally, a use variance will allow use of land as a matter of discretion in circumstances when the desired exceptional use has been proscribed by the zoning regulations (Consolidated Edison Co. v Hoffman, 43 NY2d 598, 606-607). The applicant must make a showing of unnecessary hardship (see, Matter of Sasso v Osgood, 86 NY2d 374; Matter of Otto v Steinhilber, 282 NY 71).

Here, respondent is seeking an area variance. "Generally speaking, an area variance involves no change in the essential character of the zoned district” (Matter of Wilcox v Zoning Bd. of Appeals, 17 NY2d 249, 254; see also, Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449), nor does it seek to change the essential use of the land (Matter of National Merritt v Weist, 41 NY2d 438, 441). Thus, an area variance involves "matters such as setback lines, frontage requirements, lot-size restrictions, density regulations, and yard requirements” (2 Anderson, op. cit., § 23.06).

In Matter of Sasso v Osgood (supra) this Court interpreted the parallel provisions of Town Law § 267-b (3) and held that the Zoning Board, before granting an area variance, must engage in a balancing test, considering the factors outlined in the statute and weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community. The applicant need no longer establish practical difficulties in the use of his land. That interpretation and analysis applies to section 7-712-b (3) (b), the Village Law provision relevant here.

Applying that test in this case, we conclude that the Zoning Board acted appropriately and within its powers in denying the variance.

Finally, respondent’s argument that denial of a variance and permit amount to a confiscatory taking is rejected. Respondent failed to offer proof of the value of the property before and after the regulation went into effect (Matter of Kransteuber v Scheyer, 176 AD2d 724, affd 80 NY2d 783).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.

      . Chapter 19 was adopted on October 16, 1978 to comply with Federal regulations concerning comprehensive programs for low-cost flood insurance to homeowners to regulate development in flood plains. "Flood plain areas” are based on a Flood Insurance Rate Map and a Federal study prepared by the Federal Emergency Management Agency.

      . Section 47-5.D (renum § 243-7.D [1990]) ("single and separate ownership” provision) provides:
      "D. The minimum lot width or area regulations shall not apply to any lot with an area and/or width of less than that prescribed herein provided that:
      "1. Such lot was under different ownership from that of any adjoining land on the effective date of this ordinance and is still so owned at the time of application for a building permit; and
      "2. Such lot shall be subject to all other applicable regulations prescribed by this ordinance.”

      . The requirements for a showing of hardship are now set forth in Town Law § 267-b and Village Law § 7-712-b.


author: ClPARICK, J.

text:
    [662 NE2d 787, 639 NYS2d 307]
    The People of the State of New York, Appellant, v Milburn J. Perry, Jr., Respondent.
    Argued January 3, 1996;
    decided February 8, 1996

      POINTS OF COUNSEL

      Richard J. Shay, District Attorney of Cortland County, Cortland (David J. Adinolfi II of counsel), for appellant.
    I. An appearance letter cannot constitute an arraignment as the term is defined in CPL 1.20 (9). II. Absent personal appearance or compliance with CPL 170.10 and/or Vehicle and Traffic Law § 1806, an attorney’s appearance letter cannot commence the 30-day period referred to in CPL 100.25 for service of a supporting deposition. (People v Di Gioia, 98 Misc 2d 359.) III. In any event, the People should be put on notice of the request for a supporting deposition. (People v Branchinelli, 146 Misc 2d 73; People v Schlosser, 129 Misc 2d 690.)

      Milburn J. Perry, Jr., respondent pro se, precluded.
   OPINION OF THE COURT

ClPARICK, J.

The question on appeal is whether an appearance letter sent by defense counsel more than 48 hours after defendant had been charged with a trafile infraction triggered the People’s obligation to furnish a supporting deposition under CPL 100.25 (2). We conclude that defense counsel’s appearance letter neither constituted nor dispensed with the need for an arraignment and therefore hold that the People were under no statutory obligation to furnish a supporting deposition.

On March 20, 1994, defendant was charged with failing to yield to an emergency vehicle, a traffic infraction proscribed by Vehicle and Traffic Law § 1144. By an "appearance letter” dated April 12, 1994, defendant’s lawyer notified Town Court that defendant was entering a not guilty plea and requested a supporting deposition from the complaining police officer.

After more than 30 days had elapsed from the mailing of the appearance letter, defendant moved to dismiss the simplified traffic information based on the People’s failure to timely furnish a supporting deposition. Town Court dismissed the simplified information for "lack of prosecution.” On appeal, County Court modified the dismissal on the law to clarify that the simplified information was rendered insufficient on its face by the People’s failure to furnish the requested supporting deposition (see, CPL 100.40 [2]) and, as so modified, affirmed the dismissal of the simplified information. A Judge of this Court granted leave and we now reverse.

CPL 100.25 (2) provides that a "defendant arraigned upon a simplified information is, upon a timely request, entitled as a matter of right to have filed with the court and served upon him, or if he is represented by an attorney, upon his attorney, a supporting deposition of the complainant police officer * * * providing reasonable cause to believe that the defendant committed the offense or offenses charged.” If properly requested, a supporting deposition must be served on the defendant or his counsel within 30 days from the date the court receives the request or at least five days before trial, whichever is earlier (see, id.). The People’s failure to timely supply the supporting deposition renders the simplified information insufficient on its face (see, CPL 100.40 [2]) and warrants its dismissal (see, CPL 170.30 [1] [a]; 170.35 [1] [a]).

However, the statute expressly provides that a defendant is only entitled to a supporting deposition after he has been "arraigned upon a simplified information.” Therefore, we must determine whether the attorney’s appearance letter in this case constituted, or obviated the need for, an arraignment. An arraignment is defined as "the occasion upon which a defendant against whom an accusatory instrument has been filed appears before the court in which the criminal action is pending for the purpose of having such court acquire and exercise control over his person with respect to such accusatory instrument and of setting the course of further proceedings in the action” (CPL 1.20 [9]). Before the arraignment, the court lacks jurisdiction over defendant and is therefore unable to set the course of further proceedings. Accordingly, a defendant who has not properly submitted to the court’s jurisdiction is not entitled to request a supporting deposition and any such request is a nullity.

Although the general rule is that a defendant must personally appear in court for arraignment, the Legislature has carved out two exceptions whereby a defendant charged in a simplified information may be arraigned without a court appearance (see, CPL 170.10 [1] [a], [b]).

The first exception, set forth in CPL 170.10 (1) (a), applies when an alternative provision of law dispenses with the need for an arraignment or defendant’s personal appearance. The only alternative provision of law arguably applicable to this case is Vehicle and Traffic Law § 1806, which enables a defendant charged with a traffic infraction to enter a not guilty plea "by mailing to the court of appropriate jurisdiction the ticket making the charge and a signed statement indicating such plea.” However, the statute imposes two conditions: "Such plea must be sent: (a) by registered or certified mail, return receipt requested or by first class mail; and (b) within forty-eight hours after receiving such ticket” (Vehicle and Traffic Law § 1806). In this case, defendant did not comply with the plea-by-mail provision of Vehicle and Traffic Law § 1806. Not only did defendant fail to send the ticket along with his plea, his lawyer’s appearance letter was sent more than three weeks after he received the simplified information, well beyond the 48-hour period prescribed by the statute.

The second exception, which permits defense counsel to enter an appearance in lieu of defendant (CPL 170.10 [1] [b]), is also inapplicable. Even assuming that the appearance letter of April 12th would qualify as an appearance by counsel within the meaning of the statute — a question we need not reach— defendant has failed to make any showing of "good cause,” rendering this statutory exception unavailable.

In view of the inapplicability of either exception of CPL 170.10 (1), we conclude that defendant was not arraigned on a simplified information and his request for a supporting deposition therefore failed to trigger the People’s statutory obligation under CPL 100.25 (2). Accordingly, the order of County Court should be reversed and the simplified traffic information reinstated.

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

Order reversed, etc.


author: Simons, J.

text:
    [662 NE2d 1066, 639 NYS2d 776]
    The People of the State of New York, Respondent, v Christopher Johnson, Appellant.
    Argued and submitted January 3, 1996;
    decided February 13, 1996

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Kathleen McDonough and Brian Shiffrin of counsel), for appellant.
    I. The trial court’s instruction, despite a request to the contrary, that the jury need not consider the offense charged in one count and all of the charged lessers of that count before considering the inconsistent count constituted reversible error. (People v Gallagher, 69 NY2d 525; Heard v Cuomo, 80 NY2d 684; People v Robinson, 145 AD2d 184, 75 NY2d 879; People v Mezon, 80 NY2d 155; Matter of Albano v Kirby, 36 NY2d 526; People v Anderson, 66 NY2d 529; Dougherty v Equitable Life Assur. Socy., 266 NY 71; People v Bethea, 67 NY2d 364; People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Commrs., 174 NY 417; People v Register, 60 NY2d 270.) II. The trial court improperly refused to charge manslaughter in the second degree as a lesser included offense of intentional murder, requiring reversal. (People v Murray, 40 NY2d 327, 430 US 948; People v Green, 56 NY2d 427; People v Stanfield, 36 NY2d 467.) III. Penal Law § 125.25 (2), depraved indifference murder, is impermissibly vague in violation of both the New York State and United States Constitutions. (People v Cole, 85 NY2d 990; People v Poplis, 30 NY2d 85; People v Swartz, 130 AD2d 288; People v Nelson, 69 NY2d 302; Young v American Mini Theatres, 427 US 50; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; People v Berck, 32 NY2d 567; People v Pagnotta, 25 NY2d 333; People v Byron, 17 NY2d 64.)

      Howard R. Relin, District Attorney of Monroe County, Rochester (Elizabeth Clifford of counsel), for respondent.
    I. The lower court’s charge regarding the consideration of the charges was correct. (People v Gallagher, 69 NY2d 525; People v Harrison, 85 NY2d 891; People v Willson, 109 NY 345; People v Barnett, 206 AD2d 862.) II. The court’s decision to charge the jury on the charge of manslaughter in the second degree as a lesser included of the second count of the indictment was appropriate, and, even if error, harmless error. (People v Rogers, 166 AD2d 23, 78 NY2d 1129.) III. The trial court properly found the depraved indifference murder statute constitutional. (People v Cole, 85 NY2d 990; People v Taylor, 151 AD2d 1029; People v Gray, 206 AD2d 883; People v Patterson, 39 NY2d 288, 432 US 197; People v Gomez, 65 NY2d 9; People v Register, 60 NY2d 270, 466 US 953; People v Poplis, 30 NY2d 85; People v Nixon, 33 AD2d 403.)
   OPINION OF THE COURT

Simons, J.

During an altercation in a parking lot, defendant shot Revaine Pratt with a shotgun, causing Pratt’s death. Defendant was charged in a two-count indictment for intentional murder (Penal Law § 125.25 [1]) and reckless murder under circumstances evincing a depraved indifference to human life (Penal Law § 125.25 [2]). For each of the murder counts, a lesser included offense was submitted to the jury — manslaughter in the first degree (Penal Law § 125.20 [1]) was submitted as a lesser included offense of intentional murder; manslaughter in the second degree (Penal Law § 125.15 [1]) was submitted as a lesser included offense of depraved mind murder.

Defendant requested that the jury be instructed to consider the intentional murder count and its lesser included offense before going on to consider the second count of depraved mind murder. In accordance with the People’s request, however, the court instructed the jury to consider the charges in the following order: intentional murder under the first count; if not guilty, then depraved mind murder under the second count; if not guilty, then manslaughter in the first degree under the first count; and, if not guilty, then manslaughter in the second degree under the second count. The court instructed the jury that it should cease deliberations upon finding defendant guilty of one of the crimes submitted. The jury found defendant not guilty of intentional murder, but guilty of depraved mind murder, at which point the jury ceased its deliberations and returned with its verdict. The Appellate Division has affirmed the judgment entered on the verdict.

Counts one and two (and their respective lesser included offenses) are inconsistent counts and defendant acknowledges that the court properly instructed the jury to consider them in the alternative (see, People v Gallagher, 69 NY2d 525; CPL 300.30 [5]). He contends error was committed, however, when the court instructed the jury to "blend” its consideration of the inconsistent counts by "jumping back and forth” between them.

CPL 300.30 (1) defines "submission of a count of an indictment” as submission in the alternative of the count charged and any lesser included offenses. Section 300.10 (4) requires the court to submit to the jury the counts and offenses to be considered, to define each offense, and to instruct the jury to render a verdict upon each count. Defendant contends that because these provisions address the "count” of the indictment as a whole for the purposes of submission of charges to the jury and rendition of the jury’s verdict, the jury must consider the various greater and lesser offenses of each count as a whole. Nothing contained in article 300 of the Criminal Procedure Law, however, directs the order in which the jury should consider the various offenses submitted to it. Its provisions neither authorize nor proscribe the manner in which the jury here was instructed to consider the inconsistent greater and lesser included offenses and we conclude the jury could permissibly consider the offenses in alternating order during their deliberations.

Sanctioning the procedure used by the court in this case also avoids a possible miscarriage of justice. If the jury must consider and render a verdict on every offense submitted under the first count before considering any other count, it could find defendant guilty of manslaughter as a lesser included offense under the first count submitted, before reaching the inconsistent offense of depraved mind murder under the second count. It could be forced to convict defendant of a lesser crime than his conduct actually warranted. In the context of inconsistent counts, the jury’s consideration of first the greater and then the lesser offenses properly allows the jury to consider the offenses in decreasing levels of culpability. That procedure allows a realistic accommodation between the rule requiring the trial court to submit a lesser included offense upon defendant’s request where a reasonable view of the evidence would support it (see, CPL 300.50 [2]), the rule requiring that the inconsistent counts be considered in the alternative (CPL 300.30 [5]; see, People v Gallagher, 69 NY2d 525, supra), and the fundamental principle that the jury should be permitted to render a verdict that fully reflects defendant’s culpability. We have previously acknowledged the propriety of the jury’s consideration of the offenses in this manner (see, People v Harrison, 85 NY2d 891, 894; and see, People v Rogers, 166 AD2d 23, 26-27, lv denied 78 NY2d 1129).

We also reject defendant’s contention that Penal Law § 125.25 (2), the statute under which he was convicted, is unconstitutionally vague. In People v Cole (85 NY2d 990), we upheld Penal Law § 125.25 (4) against a vagueness challenge, noting that conduct with depraved indifference to human life is well understood (id., at 992; see also, People v Poplis, 30 NY2d 85, 88). No different result follows when the offense is applied in the context of reckless conduct directed at an adult rather than a child.

Finally, defendant contends that the court erred in failing to submit manslaughter in the second degree as a lesser included offense under the intentional murder count. Having found defendant guilty of reckless murder the jury did not reach the offense of manslaughter in the first degree, and thus we need not decide whether the court erred in failing to submit the more remote offense of manslaughter in the second degree (see, People v Boettcher, 69 NY2d 174, 180-181).

Defendant’s remaining contention is not preserved.

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

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

Order affirmed.


author: Ciparick, J.

text:
    [662 NE2d 1068, 639 NYS2d 778]
    Philip R. Bartoo, Appellant, v Robert O. Buell, Respondent. Dennis E. Pangburn, Appellant, v Robert O. Buell, Respondent. Allen Skiver, Jr., et al., Appellants, v Robert O. Buell, Defendant and Third-Party Plaintiff-Respondent. General Roofing & Heating Co., Inc., Third-Party Defendant-Respondent. Thomas F. Anderson, Appellant, v Mary Flanagan, Respondent.
    Argued January 11,1996;
    decided February 13, 1996

      POINTS OF COUNSEL

      Embser & Woltag, P. C., Wellsville (G. William Gunner of counsel), for appellants in the first and second above-entitled actions.
    The single-family dwelling exemption from Labor Law § 240 (1) is not available for work on a detached barn where the barn is utilized for the commercial purpose of renting space to a number of unrelated individuals over an extended period of time. (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Haimes v New York Tel. Co., 46 NY2d 132; Van Amerogen v Donnini, 78 NY2d 880; Khela v Neiger, 202 AD2d 641; Lombardi v Stout, 80 NY2d 290; Cannon v Putnam, 76 NY2d 644; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Becker v Royce, 170 AD2d 974; Gernstl v Edwards, 162 AD2d 966; Balduzzi v West, 144 AD2d 1036.)

      Dwyer & Black, P. C, Olean (Joseph C. Dwyer of counsel), for appellants in the third above-entitled action.
    An owner, who elects to commercially rent multiple golf cart spaces in a barn 50 feet from his residence, should not be entitled to Labor Law immunity, when a scaffold collapses during repairs to the roof of the barn. (Bohnhoff v Fischer, 210 NY 172; Lombardi v Stout, 80 NY2d 290; Mullen v Karas, 144 Misc 2d 840; Gernstl v Edwards, 162 AD2d 966; Becker v Royce, 170 AD2d 974; Cannon v Putnam, 76 NY2d 644; Van Amerogen v Donnini, 78 NY2d 880; Krukowski v Steffensen, 194 AD2d 179; Balduzzi v West, 141 Misc 2d 944, 144 AD2d 1036; Zahn v Pauker, 107 AD2d 118.)

      Alfred J. Heilman, Rochester, for appellant in the fourth above-entitled action.
    I. The dwelling exemption to liability under Labor Law § 240 should be narrowly construed and not extended to defendant’s business operation. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Lombardi v Stout, 80 NY2d 290; Van Amerogen v Donnini, 78 NY2d 880; Krukowski v Steffensen, 194 AD2d 179.) II. Because defendant made regular and substantial commercial use of her dwelling, she was obliged to provide the worker a safe place to work. (Zahn v Pauker, 107 AD2d 118; Krukowski v Steffensen, 194 AD2d 179; Cannon v Putnam, 76 NY2d 644.)

      Shane & Franz, Olean (J. Michael Shane of counsel), for respondent in the first and second above-entitled actions and for defendant and third-party plaintiff-respondent in the third above-entitled action.
    The premises of defendant Buell qualify as a single-family residence exempt from the provisions of Labor Law § 240 (1). (Cannon v Putnam, 76 NY2d 644; Pigott v Church of Holy Infancy, 179 AD2d 161, 80 NY2d 759; Van Amerogen v Donnini, 78 NY2d 880; Becker v Royce, 170 AD2d 974; Gernstl v Edwards, 162 AD2d 966; Mascia v Immaculate Heart of Mary R. C. Church, 178 AD2d 1023; Zahn v Pauker, 107 AD2d 118; Balduzzi v West, 144 AD2d 1036; Yelland v Weissman, 177 AD2d 874.)

      Chamberlain, D Amanda, Oppenheimer & Greenfield, Rochester (Henry R. Ippolito of counsel), for third-party defendant-respondent in the third above-entitled action.
    The owner of a barn adjacent to his one-family dwelling comes within the exemption from strict liability under sections 240 and 241 of the Labor Law for owners of one- and two-family dwellings who contract for but do not direct or control the work, despite his allowing some of his golfing buddies to store their golf carts in the barn and receiving payments of $25 annually from some of them. (Zahn v Pauker, 107 AD2d 118; Balduzzi v West, 141 Misc 2d 944, 144 AD2d 1036; Gernstl v Edwards, 162 AD2d 966; Becker v Royce, 170 AD2d 974; Cannon v Putnam, 76 NY2d 644; Van Amerogen v Donnini, 78 NY2d 880; Yelland v Weissman, 177 AD2d 874; Pigott v Church of Holy Infancy, 179 AD2d 161, 80 NY2d 759; Khela v Neiger, 85 NY2d 333; Lombardi v Stout, 80 NY2d 290.)

      Zicari, McConville, Cooman, Morin & Welch, P. C., Rochester (Kevin S. Cooman, John J. Considine, Jr., and J. Michael Wood of counsel), for respondent in the fourth above-entitled action.
    I. The one- and two-family dwelling exception to Labor Law § 240 exempts defendant from absolute liability. (Gordon v Eastern Ry. Supply, 82 NY2d 555; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Lombardi v Stout, 80 NY2d 290; Salzler v New York Tel. Co., 192 AD2d 1104; Haimes v New York Tel. Co., 46 NY2d 132; Cannon v Putnam, 76 NY2d 644; Khela v Neiger, 85 NY2d 333; Enderby v Keppler, 184 AD2d 1058; Van Amerogen v Donnini, 78 NY2d 880; Mandelos v Karavasidis, 86 NY2d 767.) II. Absolute liability under the Labor Law for residential day-care providers would be inconsistent with the Legislature’s policy of protecting day-care providers. (People v Town of Clarkstown, 160 AD2d 17.) III. Defendant falls within the class of persons entitled to the dwelling-owner exemption under both the plain language of the exemption and the legislative history of the exemption. (Van Amerogen v Donnini, 78 NY2d 880; Rivera v Revzin, 163 AD2d 896, 79 NY2d 760; Lombardi v Stout, 80 NY2d 290; Pigott v Church of Holy Infancy, 179 AD2d 161, 80 NY2d 759; Haimes v New York Tel. Co., 46 NY2d 132; Cannon v Putnam, 76 NY2d 644.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented by these separate appeals is whether the homeowner exemption of Labor Law § 240 (1) and § 241 (6) applies to a structure jointly used for residential and commercial purposes. We conclude that defendants, owners of one-family dwellings who did not direct or control the work, are entitled to the protection of the homeowner exemption, notwithstanding the presence of some commercial activity on their properties.

I.

A. Bartoo v Buell

Fifty feet from defendant Robert Buell’s residence in Allegany County is a barn in which he stores personal belongings, including a boat and miscellaneous equipment, as well as a neighbor’s sailboat and car. In a separate portion of the barn, Buell leases space to nine individuals to store their golf carts for a $25 annual storage fee..

When the barn roof developed a leak, Buell contracted with General Roofing & Heating, Inc. to repair and paint the roof. During the course of the repair work, three of General Roofing & Heating’s employees, plaintiffs Philip Bartoo, Dennis Pang-burn, and Allen Skiver, Jr., were severely injured when a scaffold platform on which they were working collapsed. Bartoo and Pangburn together commenced one action, and Skiver and his wife commenced a separate action, both sets of plaintiffs asserting claims for, among other things, violations of Labor Law § 240 (1) and § 241 (6).

After the two actions were consolidated, Supreme Court granted plaintiffs’ separate motions for summary judgment and held that the homeowner exemption of Labor Law § 240 (1) and § 241 (6) did not exempt Buell from liability because the barn had been used in part for commercial purposes. In separate orders, the Appellate Division, with two Justices dissenting, reversed and granted summary judgment in Buell’s favor dismissing plaintiffs’ Labor Law § 240 (1) and § 241 (6) causes of action, holding that the homeowner exemption applied to the facts of this case (see, Bartoo v Buell, 198 AD2d 819). Subsequently, a judgment of Supreme Court was entered dismissing plaintiffs’ remaining causes of action. Plaintiffs filed this appeal as of right pursuant to CPLR 5601 (a) and (d).

B. Anderson v Flanagan

Defendant Mary Flanagan, who operates a children’s daycare center in her East Rochester home five days each week, decided to add a bedroom to the first floor of her two-story home. She entered into a contract with Mark Halliman to construct the downstairs bedroom and to install a sliding glass door leading from the bedroom to the backyard.

Halliman’s employee, plaintiff Thomas Anderson, sustained injuries when, in attempting to get down from the roof, he missed a stepladder and fell to the ground. Anderson commenced suit against Flanagan for, among other things, a violation of Labor Law § 240 (1). Supreme Court held that Flanagan, the owner of a one-family dwelling who did not direct or control the work, was exempt from liability under Labor Law § 240 (1) and granted summary judgment dismissing that cause of action against Flanagan. The Appellate Division unanimously affirmed for the reasons stated by Supreme Court (see, Anderson v Flanagan, 210 AD2d 955) and we granted leave to appeal.

II.

In 1980, the Legislature amended Labor Law §§ 240 and 241 to exempt "owners of one and two-family dwellings who contract for but do not direct or control the work” from the absolute liability imposed by these statutory provisions. The amendments, intended by the Legislature to shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law, reflect the legislative determination that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection (see, Cannon v Putnam, 76 NY2d 644, 649). As stated by the Law Revision Commission, "an exemption for one and two family dwelling owners is needed” because "the theory of dominance of the owner over the subcontractor or worker breaks down at this level” (Recommendation of NY Law Rev Commn, reprinted in 1980 McKinney’s Session Laws of NY, at 1659).

Mindful of this history and remedial purpose, we have avoided an overly rigid interpretation of the homeowner exemption and have employed a flexible "site and purpose” test to determine whether the exemption applies. For example, in Cannon, we concluded that the homeowner was exempt from liability, even though some commercial activity occurred on the property, where the work had been "undertaken solely in connection with defendant’s residential use of the property” (76 NY2d, at 650, supra; see also, Khela v Neiger, 85 NY2d 333).

In keeping with our pragmatic interpretation of the homeowner exemption, we have declined to apply the exemption where a building, though structurally a one-family dwelling, was used by its owner exclusively for commercial purposes (see, Van Amerogen v Donnini, 78 NY2d 880). The exemption, we held, is not designed to protect homeowners "who use their one or two-family premises entirely and solely for commercial purposes and who hardly are lacking in sophistication or business acumen such that they would fail to recognize the necessity to insure against the strict liability imposed by the statute” (id., at 882; see also, Lombardi v Stout, 80 NY2d 290).

The question posed by these cases is how to apply the site and purpose test when a single structure is used for both residential and commercial purposes. Unlike the situation where a one- or two-family dwelling serves only commercial purposes, in which case the dwelling is "more accurately considered [a] commercial enterprise[ ]” (Lombardi, supra, at 297), a residence that houses a business may nevertheless retain its character as a home. As we noted in Cannon, a "homeowner who hires someone to paint his own living-room ceiling should be afforded the benefit of the statutory exemption from liability even if he also maintains a business on the property. In terms of the legislative purpose, such a homeowner is no more or less likely to 'know about, or provide for the responsibilities of absolute liability’ for home-improvement-related injuries than is a similarly situated homeowner who happens to conduct a business on a separate parcel of land” (76 NY2d, at 650, supra [citation omitted]).

Accordingly, we conclude that when an owner of a one- or two-family dwelling contracts for work that directly relates to the residential use of the home, even if the work also serves a commercial purpose, that owner is shielded by the homeowner exemption from the absolute liability of Labor Law §§ 240 and 241.

III.

Applying these principles to the cases now on appeal, we conclude that the work in each case directly related to the residential use of the property and that each defendant, an owner of a one-family dwelling who did not direct or control the work, is exempt from liability under Labor Law § 240 (1) and § 241 (6).

In Buell, the repair work on the roof was undertaken to preserve the structural integrity of the barn itself and to protect Buell’s own possessions and those of his neighbor which he stored at no charge, as well as the golf carts stored for a fee. Though the repair work served the commercial purpose of protecting the stored golf carts from weather damage, any commercial benefit was ancillary to the substantial residential purpose served by fixing the leaking barn roof. Finally, the fact that the work was performed on the barn and not on the residential home itself does not alter the analysis; the barn, located on Buell’s property and used in part for personal storage purposes, is akin to a garage and should be considered an extension of the dwelling within the scope of the homeowner exemption.

Similarly, in Anderson, we conclude that the addition of the bedroom was directly related to the residential use of the home and that Flanagan is exempt from the absolute liability of Labor Law § 240. Flanagan decided to add the bedroom because, although two bedrooms were located on the second floor of her home, no bedroom was located on the first floor. Although a commercial purpose may also be served by the bedroom addition, the record shows that Flanagan uses the downstairs bedroom for her own residential purposes.

Accordingly, in Bartoo, the judgment appealed from and the orders of the Appellate Division brought up for review should be affirmed, with costs, and in Anderson, the order of the Appellate Division should be affirmed, with costs.

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

In Bartoo v Buell: Judgment appealed from and orders of the Appellate Division brought up for review affirmed, with costs.

In Anderson v Flanagan: Order affirmed, with costs.