author: Kaye, J. Simons, J.

text:
    Carl Kamhi, Respondent, v Town of Yorktown, Appellant.
    Argued September 12, 1989;
    decided October 26, 1989

      POINTS OF COUNSEL

      Michael J. Grace, Town Attorney, for appellant.
    I. Local Law No. 6 is not inconsistent with the provisions of the Town Law. (Riegert Apts. Corp. v Planning Bd., 57 NY2d 206.) II. Local Law No. 6 is a valid enactment under Municipal Home Rule Law § 10 (1) (ii) (d) (3) notwithstanding whether same is inconsistent with the Town Law. (Matter of Sherman v Frazier, 84 AD2d 401; Klebetz v Town of Ramapo, 109 Misc 2d 952; Rozler v Franger, 61 AD2d 46; Weinstein Enters. v Town of Kent, 135 AD2d 625; North Bay Assocs. v Hope, 116 AD2d 704; Turnpike Woods v Town of Stony Point, 70 NY2d 735; Matter of Golden v Planning Bd., 30 NY2d 359; Matter of Kamhi v Planning Bd., 59 NY2d 385; Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492; Council For Owner Occupied Hous. v Koch, 119 Misc 2d 241.) III. The Riegert decision does not specifically prohibit the act allowed by Local Law No. 6. IV. Condominium and/or cooperative apartment developments may be made subject to the subdivision regulations of the Town Law. (Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 79 Misc 2d 438, 48 AD2d 681, 39 NY2d 1029; Ronning v Thompson, 126 Misc 2d 761; Matter of Golden v Planning Bd., 30 NY2d 359.)

      Charles A. Bradley for respondent.
    I. A town is not authorized to impose a recreation fee as a condition of site plan approval. (Matter of Kamhi v Planning Bd., 59 NY2d 385;
      Riegert Apts. Corp. v Planning Bd., 57 NY2d 206.) II. Local Laws, 1982, No. 6 is not effective to supersede sections 274-a or 277 of the Town Law. (Turnpike Woods v Town of Stony Point, 70 NY2d 735.) III. Respondent should be awarded costs.

      James T. Potter for the New York State Builders Association, Inc., amicus curiae.

    I. The Town has no power to supersede article 16 of the Town Law. (Matter of Kamhi v Planning Bd., 59 NY2d 385; FGL & L Prop. Corp. v City of Rye, 66 NY2d 111; Riegert Apts. Corp. v Planning Bd., 57 NY2d 206; Matter of Golden v Planning Bd., 30 NY2d 359; Town of Greenburgh v Bobandal Realties, 10 NY2d 414; Matter of Allen v Adami, 39 NY2d 275; Turnpike Woods v Town of Stony Point, 70 NY2d 735; Matter of Leach v Kenyon, 146 Misc 571; Matter of Yeoman, 131 Misc 669; Matter of Barker v Switzer, 298 App Div 151.) II. Article 16 of the Town Law preempts local legislation. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; New York State Club Assn. v City of New York, 69 NY2d 211; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; Matter of Golden v Planning Bd., 30 NY2d 359.) III. The recreation fee is not authorized under Town Law § 274-a. (Riegert Apts. Corp. v Planning Bd., 57 NY2d 206.)
   OPINION OF THE COURT

Kaye, J.

At issue on this appeal is the validity of a local law of the Town of Yorktown conditioning site plan approval for a multifamily residential development on the provision of parkland or its money equivalent. We conclude that while in substance the Town may exercise its supersession authority to adopt such a law, in form the enactment before us was properly declared invalid.

The subject property is a 43-acre parcel in Yorktown’s zone R-3, which permits multifamily residential use of up to 12 units per acre. Plaintiff, the property owner, planned a condominium development, "Villas on the Lake,” and to this end sought site plan approval from the Town Board.

Following submission of revised plans, environmental impact statements, reports of various Town agencies and public hearings, the Town Board approved plaintiff’s plan on condition that he pay a "recreation fee” of $47,550. That condition was imposed pursuant to Local Laws, 1982, No. 6 of Town of Yorktown, which pertains to site plan approval for R-3 developments. In relevant part Local Law No. 6 reads:

"The developer shall provide a suitably improved playground/play area. Each such playground/play area shall have a minimum area of 1,200 square feet and a maximum distance of 1,000 feet from the units to be served.
"In addition to the above, the developer shall also set aside ten percent (10%) of the site for the provision of park and/or recreational facilities. If the provision of such facilities is impractical because of the particular layout of the development or for other reasons, a recreation fee of $350.00 per unit shall be submitted prior to approval of the application.”

Plaintiff paid the fee under protest and commenced this action for money had and received. He then sought summary judgment, contending that the Town was not authorized under Town Law § 274-a to impose a recreation fee as a condition of site plan approval, citing Riegert Apts. Corp. v Planning Bd. (57 NY2d 206). In response, the Town cross-moved for summary judgment dismissing the complaint. The Town’s position was that, notwithstanding section 274-a, the recreation fee was validly imposed pursuant to Local Law No. 6 which it was empowered to enact under section 10 of the Municipal Home Rule Law.

Supreme Court granted the Town’s motion and dismissed the complaint, holding that an action for money had and received was an inappropriate vehicle for review of the Town’s determination, and that the challenge to the Board’s action should have been by way of an article 78 proceeding, which was time-barred. The Appellate Division reversed. Converting the action into one for a declaratory judgment, the Appellate Division concluded that Local Law No. 6 was invalid under Riegert. We granted the Town’s motion for leave to appeal and now affirm the Appellate Division order, but on a different ground.

In general, towns have only the lawmaking powers the Legislature confers on them. In particular, they have no inherent power to impose conditions on site plan approval. Without legislative grant, an attempt to exercise such authority is ultra vires and void (see, Matter of Kamhi v Planning Bd., 59 NY2d 385; Matter of Golden v Planning Bd., 30 NY2d 359, 369-370, appeal dismissed 409 US 1003). Thus, our task is to determine whether the Legislature empowered the Town to enact a local law conditioning site plan approval on the delivery of parkland or its money equivalent.

That authority is not found in the provisions of Town Law article 16, the enabling legislation in the Town Law for local lawmaking in the area of zoning and planning. As we held in Riegert Apts. Corp. v Planning Bd. (57 NY2d 206, supra), Town Law § 274-a ("Planning board approval of site plans and certain uses”) sets forth the elements a town planning board may require for site plan approval, and significantly does not authorize a demand of parkland or its money equivalent. The Town urges, nevertheless, that its grant of authority lies in Municipal Home Rule Law § 10. This contention, which was not before us in Riegert, puts in issue the scope of authority municipalities have under their home rule powers.

Municipal Home Rule Law Authority

Municipal home rule in this State has been a matter of constitutional principle for nearly a century. Article IX of the State Constitution declares that effective local self-government and intergovernmental cooperation are purposes of the people of this State, and it directs the Legislature to provide for the creation and organization of local governments so as to secure the rights, powers, privileges and immunities granted by the Constitution (see, NY Const, art IX, § 1). As several commentators have noted, the path of home rule over the century has been unsettled and tortuous, which reflects the "difficult problem of furthering strong local governments but leaving the State just as strong to meet the problems that transcend local boundaries, interests and motivations.” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 498; Matter of Town of Islip v Cuomo, 64 NY2d 50, 54-56.)

In 1964, a home rule package was adopted, comprising article IX of the State Constitution (with a "Bill of rights for local governments”) and various implementing statutes, including the Municipal Home Rule Law and the Statute of Local Governments, both of which must be "liberally construed.” (Municipal Home Rule Law § 51; Statute of Local Governments §20 [5].) In structure, these reforms continued the earlier two-part model for home rule: limitations on State intrusion into matters of local concern and affirmative grants of power to local governments (Rozler v Franger, 46 NY2d 760, affg on opn at 61 AD2d 46, 55 [Hancock, Jr., J.]). This case involves the Legislature’s affirmative grant of power to towns, and not any limitation on State lawmaking powers.

The Municipal Home Rule Law affirmatively grants authority to towns — "[i]n addition to powers granted in the constitution, the statute of local governments or in any other law” — to adopt local laws relating to their "property, affairs or government,” provided that such legislation is not inconsistent with the Constitution or any general law (NY Const, art IX, § 2 [c] [i]; Municipal Home Rule Law § 10 [1] [i]). The statute further authorizes towns to adopt local laws in 14 enumerated instances, so long as those enactments are not inconsistent with general law or prohibited by State law (NY Const, art IX, § 2 [c] [ii] [1]; Municipal Home Rule Law § 10 [1] [ii]; Matter of Marcus v Baron, 57 NY2d 862, revg on dissent of Hopkins, J., 84 AD2d 118, 134-139).

Neither of these grants of power encompass Local Law No. 6, however, because — as the Appellate Division correctly held —the local law is inconsistent with Town Law § 274-a, which defines planning board powers in connection with site plan approval. As we concluded in Riegert, there is no express authority in the Town Law for planning boards to impose parkland-or-money conditions for site plan approval, as there is for subdivision plat approval under Town Law § 277. Moreover, because of the Legislature’s evident choice in omitting that authority for site plan approval while including it for subdivision plat approval, the power cannot be implied in Town Law § 274-a (Riegert Apts. Corp. v Planning Bd., supra).

Thus, in view of the inconsistency between Local Law No. 6 and Town Law § 274-a, authority cannot be found for the local law in Municipal Home Rule Law § 10 (1) (i) or (ii).

Supersession Authority

Although local laws that are inconsistent with State laws are generally invalid, a limited exception exists for local laws that fall within Municipal Home Rule Law § 10 (1) (ii) (d) (3)— the supersession authority. The section provides that a town may amend or supersede, in its local application, "any provision of the town law relating to the property, affairs or government of the town or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law.” The statute goes on to specify matters as to which supersession is not authorized by the section — for example, with respect to a special or improvement district or an improvement area — but those restrictions are not in issue in this case.

When municipalities act within their supersession authority, even local laws that are inconsistent with the Town Law may be valid. Indeed, inconsistency is a premise of the super-session authority, for there is otherwise little need of the power to amend or supersede State law (Rozler v Franger, 61 AD2d 46, 52-53, supra). Local lawmaking power under the supersession authority is of course in all instances subject to the State’s transcendent interest where the Legislature has manifested such interest by expressly prohibiting a local law (Municipal Home Rule Law § 10 [1] [ii] [d] [3]), or where a local law is otherwise preempted by State law (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372 [decided today]).

By thus carving out a narrow, well-demarcated area of purely local concern where towns can within their Municipal Home Rule Law § 10 authority amend and even override provisions of the Town Law in their local applicability, the Legislature has recognized that situations may arise where laws of State-wide application are appropriately tailored by municipalities to fit their own peculiarly local needs (see, Rice, 1988 Survey of New York Law: Zoning and Land Use, 40 Syr L Rev 641, 642 [1989]; Cole, Municipal Home Rule Law and Local Zoning Power, 3 Mun Law 2 [Nov./Dec. 1986]). Such a situation is before us today.

Application of Supersession in this Case

In the abstract, no one questions the legitimacy of a municipal reservation of parkland or its money equivalent as a condition of residential land development (see, e.g., Jenad, Inc. v Village of Scarsdale, 18 NY2d 78, 84; 2 Anderson, New York Zoning Law and Practice §§ 21.18-21.19, at 94-99 [3d ed 1984]). It is long settled that such a condition may be imposed so long as there is a sufficient nexus between the property and problem being redressed (see, Matter of Golden v Planning Bd., 30 NY2d 359, 371, n 5, supra; Note, Municipal Development Exactions, The Rational Nexus Test, and the Federal Constitution, 102 Harv L Rev 992 [1989]; Delaney, Gordon and Hess, The Needs-Nexus Analysis: A Unified Test for Validating Subdivision Exactions, User Impact Fees and Linkage, 50 L & Contemp Prob 139 [Winter 1987]). Indeed, no challenge has been made to the reasonableness of Local Law No. 6; although the local law does not so specify, plaintiff apparently assumes for present purposes that the "recreation fee” would benefit his development.

Nor can there be question about the uniquely local impact of the condition in issue. We have long recognized that a town’s planning needs with respect to its neighborhood parks and playgrounds are "distinctively” matters of local concern (see, Adler v Deegan, 251 NY 467, 484-485 [Cardozo, Ch. J., concurring]; see also, Aunt Hack Ridge Estates v Planning Commn., 160 Conn 109, 273 A2d 880; 4 Anderson, American Law of Zoning § 25.39, at 392 [3d ed 1986]). The Legislature, similarly, has long recognized the uniquely local nature of parkland-or-fee requirements by expressly authorizing town planning boards to condition approval of subdivision plats on "a payment to the town of a sum to be determined by the town board, which sum shall constitute a trust fund to be used by the town exclusively for neighborhood park, playground or recreation purposes including the acquisition of property.” (Town Law § 277.) The Legislature made clear that it does not consider that there is a need for uniformity, or other paramount State interest, in the imposition of such a condition.

Our conclusion in Riegert that the express statutory authority found in Town Law § 277 could not, by implication, be extended to site plan approvals rested on a general over-all distinction between site plans and subdivision plats: a site plan usually involves the proposed development of a single lot intended to remain as such, while a subdivision plat involves the division of a parcel into smaller, ultimately individually owned lots (Riegert Apts. Corp. v Planning Bd., 57 NY2d, at 210-212, supra). Permitting towns to impose a parkland-or-money condition on site plan approval, we explained in Riegert, would enable them "to exact a toll twice from the same development: once when the developer seeks approval of the plat; the second time when individual lot owners seek approval of the building plans for their homes. There would, of course, be no real justification for a planning board to demand from the individual lot owners land or money for parks when the developer’s contribution has already been received. By expressly providing for public park dedication in section 277 plat approval and by omitting any reference to parks in section 274-a, the Legislature intended that the burden of major community concerns such as parks be placed on the developer, not the individual lot owner.” (Id., at 212.)

But when Town Law § 274-a is specifically applied to plaintiffs R-3 condominium development in the Town of Yorktown, this legislative design is defeated. As the Town points out,, its condominium housing developments generally do not require subdivision approval. Site plan approval is the significant — if not only — approval for such multifamily developments. In such instances, the concern about imposing a double toll on a property owner therefore becomes inapposite. Equally relevant, when Town Law § 274-a is specifically applied to these developments in Yorktown, the legislative objective we identified in Riegert of placing "the burden of major community concerns such as parks * * * on the developer” can be wholly circumvented. A developer of high-density, multifamily projects — while adding significantly to the demand for neighborhood recreation space — can avoid any contribution to supplying such space by structuring a project in the form of cooperatives or condominiums within Yorktown’s R-3 district, rather than in a form requiring subdivision approval (see generally, 5 Ziegler, Rathkopf s Zoning and Planning § 64.03 [2] [b], at 64-29 — 64-30). The supersession authority permits the Town to correct this anomaly.

A town can amend or supersede a provision of the Town Law only "in relation to which and to the extent to which” it is authorized to adopt local laws by section 10 of the Municipal Home Rule Law (Municipal Home Rule Law § 10 [1] [ii] [d] [3]). In the circumstances presented, we hold that permitting the Town to supersede Town Law § 274-a in its local application — so that the purpose of the statute will be promoted rather than defeated within this community — fits comfortably within section 10 (see, Matter of Torsoe Bros. Constr. Corp. v Architecture & Community Appearance Bd. of Review, 120 AD2d 738; 1982 Opns Atty Gen [Inf Opns] No. 84, at 227 [distinguishing Riegert]; 5 Rohan, Zoning and Land Use Controls § 33C.02 [2] [1989]; Rice, 1988 Survey of New York Law: Zoning and Land Use, 40 Syr L Rev 641, 641-644 [1989]; Cole, Home Rule Law and Local Zoning Power, 3 Mun Law 2 [Nov./ Dec. 1986]).

Municipal Home Rule Law § 10 (1) (ii) (a) (12) vests towns with the police power to enact laws relating to the "government, protection, order, conduct, safety, health and well-being of persons or property therein.” Although this provision is not a delegation of the entire police power of the State and is limited to matters of an inherently local nature, it affords a basis for local "land use controls to meet the increasing encroachments of urbanization on the quality of life.” (Town of Islip v Caviglia, 73 NY2d 544, 550; see also, Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96; People v Cook, 34 NY2d 100, 105-110; Good Humor Corp. v City of New York, 290 NY 312, 316-318.) Municipal Home Rule Law § 10 (1) (ii) (a) (14), moreover, permits a town to adopt local laws to exercise "[t]he powers granted to it in the statute of local governments.” The Statute of Local Governments § 10 (6) in turn gives towns the power to "adopt, amend and repeal zoning regulations.” This provision also affords a limited field for local lawmaking in the area of planning and zoning.

To deny the Town’s authority in this case — as the concurrence urges — would be to give little force to the independent grants of power specified in the Municipal Home Rule Law and the Statute of Local Governments; it would ignore the Legislature’s direction that these statutes be liberally construed; and it would significantly diminish the long-heralded constitutional and statutory home rule reforms. As Chief Judge Cardozo observed, the home rule laws "adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts * * * ignore the new spirit that dictated their adoption.” (Matter of Mayor of City of N. Y. [Elm St.] 246 NY 72, 76.)

We therefore must reject the concurrers’ view that — while the intended purpose of the supersession authority is to permit localities to fashion delegated powers to suit local needs, and while some authority for lawmaking in the area of zoning and planning can be found in Municipal Home Rule Law § 10 —that authority can go no further than structuring the organization and administration of town government (concurring opn, at 438). No such limitation is apparent from the plain language of section 10 (1) (ii) (d) (3), which refers not only to "the property, affairs or government of the town” but also to "other matters in relation to which and to the extent to which [a town] is authorized to adopt local laws by this section.” (See also, n 2, supra.) Moreover, we find nothing in the Bill Jacket that compels such a cramped construction of the section; indeed, the Bill Jacket reflects a recognition, voiced as a criticism, that the legislation could "enable drastic changes and lead to unusual innovations in local government which cannot be foreseen.” (Mem of Division of Housing and Community Renewal, Governor’s Bill Jacket, L 1976, ch 365.)

We conclude that the Town had the power to adopt a local law requiring parkland-or-money exactions in connection with site plan approval for R-3 developments. This is hardly license for an "arrogation of undelegated power” or a "profound change * * * giv[ing] municipalities virtually unconstrained authority to act” (concurring opn, at 436, 442). Rather, our conclusion represents a faithful application of the dictates of the Municipal Home Rule Law, which — within narrow confines— permits the Town of Yorktown to adjust a provision of the Town Law so that in its local application it will have exactly the effect intended by the Legislature.

Noncompliance with Formal Requisites

While a town might enact a local law requiring parkland or its money equivalent for site plan approval, the Appellate Division declaration of invalidity nonetheless must be sustained because the local law in issue does not comply with the formal requirements of the Municipal Home Rule Law.

A town’s authority to amend or supersede can be exercised only upon substantial adherence to the procedures set forth in Municipal Home Rule Law § 22 (1) (Turnpike Woods v Town of Stony Point, 70 NY2d 735). That provision requires a municipality invoking its supersession authority to state its intention with definiteness and explicitness — hardly an insignificant matter, in that there is otherwise no way of knowing what the locality intends, or what law governs. A clear statement avoids "the confusion that would result if one could not discern whether the local legislature intended to supersede an entire State statute, or only part of one — and, if only a part, which part.” (Turnpike Woods v Town of Stony Point, supra, at 738; Bareham v City of Rochester, 246 NY 140, 150 [interpreting predecessor provision City Home Rule Law § 12]; see also, County of Rensselaer v City of Troy, 102 AD2d 976, 977; Stone v Village of Baldwinsville, 138 Misc 2d 164.)

Local Law No. 6 does not expressly amend or supersede Town Law § 274-a, nor does it contain any declaration of intent to do so. "Nowhere does it define by reference to chapter and section number, or by reference to title, or by replication of actual text, the particular provision(s) of the Town Law to which it purports to apply.” (Turnpike Woods v Town of Stony Point, supra, at 738.) While section 22 provides that failure to comply punctiliously with every specification requirement will not invalidate a local law, here the local law reveals nothing of the Town’s intention to amend or supersede and consequently must be declared invalid.

We thus need not consider whether this local law is additionally invalid for its failure to specify that use of the fees would be limited to parkland benefiting the development (cf., Jenad, Inc. v Village of Scarsdale, 18 NY2d 78, 84, supra; Connors & High, The Expanding Circle of Exactions: From Dedication to Linkage, 50 L & Contemp Prob 69, 71 [Winter 1987] ["A properly drafted ordinance must specify that the use of the fees is limited to the eventual acquisition of a park * * * that will primarily, although not exclusively, benefit the residents of the new development.”]), or for its failure explicitly to exempt property owners whose land is part of a subdivision previously approved on condition that land or money be set aside for park purposes (see, 1982 Opns Atty Gen [Inf Opns] No. 84, at 227).

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

Simons, J.

(concurring). I agree with the majority that the order should be affirmed and Local Laws, 1982, No. 6 of the Town of Yorktown declared invalid because the Town of Yorktown did not comply with the requirements of Municipal Home Rule Law § 22 (1). I do not agree that the Town may reenact the local law, or one similar to it, after complying with section 22 (1), and thereby condition site plan approval on a contribution of parkland or money equivalent by the owners. It is fundamental that municipalities are creatures of the State and that, as such, they have only those powers delegated to them. The decision in this case violates that rule. The majority have found a general law in which the Legislature has, by choice, withheld local power to act (Town Law § 274-a) and a local law exercising the power withheld (Local Law No. 6). They then characterize the local law as “inconsistent” with general law and hold it is valid because the Town is authorized to amend or supersede inconsistent State laws (see, Municipal Home Rule Law § 10 [1] [ii] [d] [3]). The statutes cannot correctly be interpreted as permitting the Town’s supersession power to supplement or augment the powers delegated to it in substantive areas of law and doing so works a profound change in the home rule principles by which this State is governed. Accordingly, I cannot join in the court’s opinion.

The majority determines that the power to enact Local Law No. 6 is to be found in Municipal Home Rule Law § 10 (1) (ii) (d) (3). That provision authorizes a town to amend or supersede, in its local application, “any provision of the town law relating to the property, affairs or government of the town or to other matters”. By its plain terms, however, the subdivision permits exercise of the power only "to the extent to which it is authorized to adopt local laws by this section” (emphasis added). Thus, the inquiry must be whether the Legislature has delegated to the Town the power to act on the subject. Absent such independent authority, the Town may not amend or supersede under section 10 (1) (ii) (d) (3) and Local Law No. 6 is ultra vires and void.

Analysis begins with an understanding of the statutory scheme. Section 10 (1) of the Municipal Home Rule Law authorizes municipalities to adopt local laws relating to their "property, affairs or government” (Municipal Home Rule Law § 10 [1] [i]) and in 14 other enumerated areas “whether or not they relate to the property, affairs or government of such local government” (§ 10 [1] [ii]). Both paragraphs specify, however, that the municipalities may not adopt local laws “inconsistent with the provisions of the constitution or * * * any general law” (§ 10 [1] [i], [ii]).

Section 10 (1) (ii) (d) (3) and section 10 (1) (ii), on which the majority rely, are patently inconsistent. Reading the sections literally, a town may amend or supersede the general laws but not in a way inconsistent with the general laws. That construction deprives the statute of any meaning. Thus, we have approved an interpretation that the limitation on the power to adopt laws contained in paragraphs (i) and (ii) — that they must be consistent with the Constitution and general laws— does not operate in those situations in which the Legislature has authorized municipalities to amend or supersede general laws (see, Rozler v Franger, 46 NY2d 760, affg on opn of Justice Hancock at App Div 61 AD2d 46). In Rozler, Justice Hancock, as he then was, explained when analyzing parallel provisions of the Village Law, the words " 'not inconsistent with any general law’ ” found in section 10 (1) (i) and (ii) must be read as "impliedly subject to an exception where ** * * the inconsistency has been specifically authorized by the Legislature in the same section as the limitation.” (61 AD2d, at 52.)

As so interpreted, the threshold question when applying the statute is not whether the local law is inconsistent with a general law or addresses a matter of local concern, as the majority reasons, but whether the Town has power to act on the subject. Unless power has been delegated to the Town by the Constitution or other general law, the local legislation is invalid. An examination of the statute reveals that the power to adopt Local Law No. 6 has not been delegated to respondent by the Municipal Home Rule Law or any other general law of the State.

It is helpful to remember that the Municipal Home Rule Law was passed in 1964 following approval of a new article IX, §2 of the State Constitution. It was enacted with the Statute of Local Governments to implement the constitutional amendment by replacing the former City Home Rule Law, the Village Home Rule Law and various home rule provisions found in the County and Town Laws. The Legislature’s purpose was to consolidate the powers previously granted by these provisions into one new chapter called the Municipal Home Rule Law, to make the grants of power to various subdivisions of government uniform to the extent possible and to facilitate uniform construction (see, Analysis of Municipal Home Rule Law, L 1963, ch 843, Mem of Office for Local Governments, McKinney’s Cons Laws of NY, Book 35C, at XIII; Purpose and Scope of Municipal Home Rule Law, op. cit., at IX). Although the Municipal Home Rule Law originally authorized other municipalities to amend or supersede general laws, section 10 (1) (ii) (d) (3), conferring that power on towns, was not contained in section 10 as originally adopted (see, L 1964, ch 78). It was added by chapter 365 of the Laws of 1976. Documents iñ the Bill Jacket make clear that the amendment was intended to enable towns to structure the organization and administration of their government to meet local concerns (see, Bill Jacket, L 1976, ch 365; see, e.g., Sponsors’ Mem, Assemblyman Robach and Senator Eckert; Letter of Senator Eckert to Governor Carey, July 21, 1975; Letter from Association of Towns, May 28, 1976). The purpose was not to expand the towns’ substantive powers but to implement powers the towns already possessed by giving them the same authority to supersede or amend general laws enjoyed by other local governments. This power was explained in Rozler where the court stated that the legislative intent was to enable local governments to adopt and amend local laws "for the purpose of fully and completely exercising the powers granted to them” under the Constitution and general laws of the State (Rozler v Franger, 61 AD2d 46, 54, affd 46 NY2d 760, supra).

New York municipalities have been granted broad powers to regulate and limit property uses to discourage some uses through restrictive zoning and to encourage others through devices such as incentive zoning (see generally, Matter of Town of Islip v Caviglia, 73 NY2d 544; Asian Ams. for Equality v Koch, 72 NY2d 121, 128-129; Maldini v Ambro, 36 NY2d 481). They enjoy latitude because the Legislature has granted them power to supersede certain general laws to adapt the powers to local concerns and achieve effective government for the community. Using the cases cited by the majority as illustrations, the courts have approved local legislation passed pursuant to section 10 (1) (ii) (d) (3) transferring certain review powers to a board other than the one authorized to perform review functions by the Town Law (see, Matter of Torsoe Bros. Constr. Corp. v Architecture & Community Appearance Bd. of Review, 120 AD2d 738; Matter of Sherman v Frazier, 84 AD2d 401), changing certain voting requirements of a Town Board from a vote of three quarters of the membership to a simple majority (see, North Bay Assocs. v Hope, 116 AD2d 704, lv denied 68 NY2d 603) or amending filing requirements established in general laws (Matter of Schilling v Dunne, 119 AD2d 179). As these cases illustrate, section 10 (1) (ii) (d) (3) properly construed, is an effective means for localities to tailor delegated powers in a way best suited to meet local conditions. There is nothing in the language of section 10 (1) (ii) (d) (3), however, or the history of its adoption which supports the majority’s conclusion that the amendment was intended to supplement towns’ specifically delegated powers. Therefore, I cannot accept the majority’s conclusion that the supersession power it authorizes constituted a delegation of authority to enact Local Law No. 6.

In my view, the question presented in this appeal was decided in Riegert Apts. Corp. v Planning Bd. (57 NY2d 206). On facts strikingly similar, we held that towns had no express or implied power to condition site approval on contributions of parkland or equivalent money payments, that Town Law § 277, which authorizes such exactions, dealt exclusively with approval of subdivision plats and that the Legislature had "carefully exclude[d]” similar authorization from Town Law § 274-a, which deals with site plan approval (see, Riegert Apts. Corp. v Planning Bd., supra, at 211). Moreover, we refused to imply the power even though section 274-a provided broadly that when reviewing site plans Town Planning Boards could consider the "impact of the proposed use on adjacent land uses and such other elements as may reasonably be related to the health, safety and general welfare of the community” (supra, at 212).

Notwithstanding this decision, the majority hold that the Municipal Home Rule Law allows the Town to exercise power the Legislature has denied it. The majority recognizes that under Riegert the Town has not been delegated the power to exact parkland or equivalent money payments as a condition of site plan approval, but they hold that the two provisions are merely inconsistent and therefore section 274-a may be superseded. The local law is valid, they hold, because the supersession authority in Municipal Home Rule Law § 10 (1) (ii) (d) (3) augments the substantive powers delegated to the Town and authorizes the local legislation if some source of authority may be found in section 10 (1) (ii). They find such delegation in section 10 (1) (ii) (a) (12), dealing with police powers and (14), referring to powers contained in the Statute of Local Governments. The reference to the Statute of Local Governments contained in subclause (14) refers to provisions which authorize towns to "adopt, amend and repeal zoning regulations” (Statute of Local Governments § 10 [6]) and perform "comprehensive or other planning work relating to its jurisdiction” (§ 10 [7]).

The general grant of police powers contained in section 10 (1) (ii) (a) (12) cannot expand zoning power beyond that expressly addressed in the general laws or the Statute of Local Governments (see generally, Matter of Bon-Air Estates v Building Inspector of Town of Ramapo, 31 AD2d 502, 504; 5 Rohan, Zoning and Land Use Controls §§ 35.01, 35.02 [3] [1989]). Insofar as the reference in section 10 (1) (ii) (a) (14) to the Statute of Local Governments is concerned, the power identified there (§ 10 [6], [7]) authorizes adoption of zoning "regulations” and performance of "planning work”. The authorization to adopt zoning "regulations”, not local laws, suggests that the Legislature contemplated no more than enabling municipalities to individualize delegated powers to address local concerns. Moreover, section 10 of the Statute of Local Governments severely restricts the authority granted in its opening paragraph, providing that it is "at all times * * * subject to such purposes, standards and procedures as the legislature may have heretofore prescribed or may hereafter prescribe”. Considering the language of subdivision (6) and the limitation on the powers delegated by the section, subdivision (6) does not materially add to the powers of local governments in the zoning area beyond those already delegated in the Town Law (see, 1 Anderson, New York Zoning Law and Practice § 2.05 [3d ed]; Note, Home Rule Law and the New York Constitution, 66 Colum L Rev 1145, 1154).

In sum the majority finds that there is some undefined power delegated by section 10 (1) (ii) (d) (3) and section 10 (1) (ii) which authorizes Local Law No. 6. But if the power to adopt Local Law No. 6 is not to be found in the language of section 274-a because the Legislature "carefully exclude[d]” it, it seems clear the power cannot be extracted from the general language of the Municipal Home Rule Law. The majority cite no authority to support their analysis but merely urge that the construction promotes the purposes of section 274-a of the Town Law (see, majority opn, at 432). Rather than "promoting” the purposes of section 274-a, this decision completely overrides them permitting the Town to do precisely that which the Legislature chose to prevent it from doing.

The majority also rely upon the local impact of the problem to sustain their result. Surely, parks and playgrounds, and the cost and availability of land for them, are matters of local concern. But zoning and planning powers, as we have noted many times, have ramifications that transcend local interests and geographical boundaries (Riegert Apts. Corp. v Planning Bd., supra, at 213; Berenson v Town of New Castle, 38 NY2d 102, 111; see also, Matter of Town of Bedford v Village of Mt. Kisco, 33 NY2d 178, 192 [Breitel, J., dissenting]; Matter of Golden v Planning Bd., 30 NY2d 359, 383 [Breitel, J., dissenting]). As Chief Judge Cooke stated in Riegert when addressing this specific issue: "No reason is proffered why respondents here should have greater power to impose conditions on site plan approval than the other municipalities in the State. Such power would conflict with the legislative intent of providing a State-wide uniform scheme. Consequently, at least to the extent they conflict with the Town Law, respondents’ site regulations should be deemed negated by the legislation enacting section 274-a” (57 NY2d, at 213).

The Town can purchase land and set it aside or it can zone land for park purposes in accordance with the powers delegated to it. But it cannot satisfy its parkland needs by conditioning site plan approval on donations of land or money from developers until the Legislature authorizes such action. If the Town can now impose this fee upon condominium developers, there is no logical reason why the town could not impose it on the apartment developers in Riegert or for that matter why a town could not impose such fees as a condition for site plan approval of single residences in the future.

The exercise of power delegated to municipalities without restriction to satisfy local needs is a matter of little concern to the State as a whole but the arrogation of undelegated power is quite another matter. When a State-wide interest has been established by a general law, a local government may not interfere with its operative effect (see, Matter of Marcus v Baron, 84 AD2d 118, 134-139 [dissent], reversed on dissenting opn 57 NY2d 862). The interpretation placed upon the Municipal Home Rule Law by the majority in this case not only interferes with State law on site plan approval, it gives municipalities virtually unconstrained authority to act on matters in which the State has granted them no authority. The local legislation need only be "inconsistent” with silent general laws on the subject and have local implications.

Accordingly, I concur in the court’s opinion for the reasons stated.

Chief Judge Wachtler and Judges Alexander, Titone and Bellacosa concur with Judge Kaye; Judge Simons concurs in a separate opinion in which Judge Hancock, Jr., concurs.

Order affirmed, with costs.

      . See, Cole, Constitutional Home Rule in New York: "The Ghost of Home Rule”, 59 St John’s L Rev 713 (1985); Note, Home Rule and the New York Constitution, 66 Colum L Rev 1145 (1966); Hyman, Home Rule in New York 1941-1965: Retrospect and Prospect, 15 Buffalo L Rev 335 (1965); Comment, Home Rule: A Fresh Start, 14 Buffalo L Rev 484 (1965); Asch, Municipal Home Rule in New York, 20 Brooklyn L Rev 201 (1954); Richland, Constitutional City Home Rule in New York, 54 Colum L Rev 311 (1954).

      . Plaintiff urges that the Legislature has expressly prohibited the adoption of such a local law as Local Law No. 6. This contention merits little discussion. There is no express prohibition here.

      . We note that other authorities have reached a similar conclusion (see, e.g., Matter of Sherman v Frazier, 84 AD2d 401, 409; Weinstein Enters. v Town of Kent, 135 AD2d 625, 626, lv denied 72 NY2d 801; North Bay Assocs. v Hope, 116 AD2d 704, 706, lv denied 68 NY2d 603; 1987 Opns Atty Gen [Inf Opns] No. 85, at 170; 1987 Opns Atty Gen [Inf Opns] No. 22, at 71; 1986 Opns Atty Gen [Inf Opns] No. 49, at 105; 1984 Opns Atty Gen [Inf Opns] No. 50, at 150; 1982 Opns Atty Gen [Inf Opns] No. 84, at 227; 1 Anderson, New York Zoning Law and Practice § 4.02, at 106-108 [3d ed]; Rice, 1988 Survey of New York Law: Zoning and Land Use, 40 Syr L Rev 641, 641-644; Rice, Municipal Home Rule Impact on Town and Village Zoning, NYLJ, Mar. 16, 1988, at 26, col 1; Cole, Home Rule Law and Local Zoning Power, 3 Mun Law 2 [Nov./Dec. 1986]; see also, Village of Savona v Soles, 84 AD2d 683 [Simons, J. P., and Hancock, Jr., J., participating]; and 1976 Opns Atty Gen 127 [finding power to zone in Municipal Home Rule Law § 10 (2)]).

      . The pertinent provisions of Municipal Home Rule Law § 10 (1) provide:

        "1. In addition to powers granted in the constitution, the statute of local governments or in any other law,
      "(i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government and,
      "(ii) every local government, as provided in this chapter, shall have power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to the following subjects, whether or not they relate to the property, affairs or government of such local government
      * * *
      "d. A town:
      * * *
      "(3) The amendment or supersession in its application to it, of any provision of the town law relating to the property, affairs or government of the town or to other matters in relation to which and to the extent to which it is authorized to adopt local laws by this section, notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited the adoption of such a local law.” (Emphasis added.)

      . The Statute of Local Governments was conceived as a vehicle to grant power to local governments other than those relating to "property, affairs or government” found in Municipal Home Rule Law § 10 (1) (i) (i.e., those enumerated in section 10 [1] [ii]) and to stabilize the grant by requiring two years to amend or repeal enumerated powers (see, Statute of Local Governments § 12). It has been said the statute achieved "no significant change in preexisting” law (see, Note, Home Rule and the New York Constitution, 66 Colum L Rev 1145,1152).

      . "(a) A county, city, town or village:
      * ** *
      "(12) The government, protection, order, conduct, safety, health and well-being of persons or property therein. This provision shall include but not be limited to the power to adopt local laws providing for the regulation or licensing of occupations or businesses provided, however, that:
      * * *
      "(14) The powers granted to it in the statute of local governments.”


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    In the Matter of Robert J. Rubinstein, as Executor of Judith Kaye, Deceased, Appellant, v 160 West End Owners Corp. et al., Respondents.
    Argued October 11, 1989;
    decided November 16, 1989

      POINTS OF COUNSEL

      Richard Jankell and Robert J. Rubinstein for appellant pro se.

    I. An estate having possession and the right to possession of an apartment under a valid unexpired lease on the date the cooperative conversion plan is accepted for filing by the Attorney-General is a "tenant in occupancy” under section 352-eeee of the General Business Law. (Consolidated Edison Co. v 10 W. 66th St. Corp., 61 NY2d 341; People v National Trust Co., 82 NY 283; De Christoforo v Shore Ridge Assocs., 116 AD2d 123; Cooper v 140 E. Assocs., 27 NY2d 115; Manolovici v 136 E. 64th St. Assocs., 70 NY2d 785; Chusid v Wright, 138 AD2d 291; New York City Hous. Auth. v Colon, 66 Misc 2d 654; De Kovessey v Coronet Props. Co., 69 NY2d 448; Festa v Leshen, 145 AD2d 49.) II. A tenant’s reason for exercising a right to purchase is not material or relevant in determining "tenant in occupancy” status. (Manolovici v 136 E. 64th St. Assocs., 70 NY2d 785; De Kovessey v Coronet Props. Co., 69 NY2d 448; Consolidated Edison Co. v 10 W. 66th St. Corp., 61 NY2d 341.) III. Actual use and possession is not a requirement for "tenant in occupancy” status by a tenant under a lease. (Consolidated Edison Co. v 10 W. 66th St. Corp., 61 NY2d 341; Manolovici v 136 E. 64th St. Assocs., 70 NY2d 785.) IV. In an appeal from an order on a CPLR 3211 (a) (7) motion which is not converted to a motion for summary judgment under CPLR 3211 (c), the pleadings must be construed in favor of the pleader. (Barr v Wackman, 36 NY2d 371; Rovello v Orofino Realty Co., 40 NY2d 633.)

      C. Daniel Chill, Elaine M. Reich and John P. Sheridan for respondents.
    I. The estate is not a tenant in occupancy that has a right to purchase created by General Business Law § 352-eeee; it utterly fails to meet the two-pronged test of De Kovessey. (De Kovessey v Coronet Props. Co., 69 NY2d 448; Rosefan Constr. Corp. v Salazar, 114 Misc 2d 956; Joint Props. Owners v Deri, 113 AD2d 691; Wishod v Kibel, 115 AD2d 735; Remford Corp. v Rosenfeld, 274 App Div 769; Lomnitz v 61 E. 86th St. Equities Group, 129 Misc 2d 157; Tagert v 211 E. 70th St. Co., 63 NY2d 818; Sullivan v Brevard Assocs., 66 NY2d 489.) II. The decision of the court below advances the legislative policy underlying General Business Law § 352-eeee. (People v Ryan, 274 NY 149; Ferres v City of New Rochelle, 68 NY2d 446; Matter of Petterson v Daystrom Corp., 17 NY2d 32.) III. The principles of De Kovessey apply equally to rent-controlled and rent-stabilized tenancies. (8200 Realty Corp. v Lindsay, 27 NY2d 124; State Div. of Human Rights v Xerox Corp., 102 AD2d 543, 65 NY2d 213.) IV. Consolidated Edison, Cooper and Manolovici are at one with De Kovessey. (Cooper v 140 E. Assocs., 27 NY2d 115; Consolidated Edison Co. v 10 W. 66th St. Corp., 61 NY2d 341; Manolovici v 136 E. 64th St. Assocs., 70 NY2d 785.) V. The estate’s arguments, such as they are, are unavailing.
   OPINION OF THE COURT

Bellacosa, J.

The question is whether an estate can count among its assets the "insider’s price” of its decedent’s apartment. The deceased tenant of record died before the apartment was offered for sale under the subsequently accepted cooperative conversion plan. Controlling precedent and the relevant statute therefore compel a negative answer to the question posed.

Decedent was the sole occupant and tenant of record on the lease of a rent-stabilized apartment owned by respondents and located on the Upper West Side of Manhattan. She died on August 22, 1986 with 10 months left on her lease. The estate, which continued the obligated rent payments, used the apartment for storing decedent’s personal property. In December 1986, with six months left on the lease, respondents’ offering plan to convert their apartment building to cooperative ownership was accepted by the Attorney-General. Respondents’ sale offer included special advantages for "Tenant-Purchasers”. The estate purported to accept the offer as a "Tenant-Purchaser” for the shares allocated to its decedent’s apartment. Respondents refused the tender and the estate started a proceeding in Surrogate’s Court to compel the sale. While the Surrogate ruled in favor of the estate, the Appellate Division reversed, dismissing the petition. We granted leave to appeal and now affirm the order of the Appellate Division.

The controlling statute makes "tenants in occupancy” eligible for an insider’s purchase option (General Business Law § 352-eeee [2] [d] [ix]). We have said that a " 'tenant in occupancy’ must be in actual possession and occupying the unit at the time the conversion plan is accepted for filing in order to qualify at all” (De Kovessey v Coronet Props. Co., 69 NY2d 448, 457). At the time of the offering in this case, neither the tenant of record, by then deceased, nor the successor in limited interest, the estate (not a named entity on the lease), was "occupying” the apartment at issue within the contemplation of the statute and of De Kovessey (id.). The landlord-tenant relationship, of course, was fundamentally changed by the decedent-tenant’s death, and the estate’s successory entitlements in respect to the apartment were for winding-up purposes only and certainly entailed no right of "occupancy” of the apartment after the end of the lease term (see, Real Property Law § 236).

The purpose of the rent laws, as they pertain to cooperative conversions, is to protect dwellings for entitled persons or entities (see, e.g., Administrative Code of City of New York § 26-501; see, Manolovici v 136 E. 64th St. Assocs., 70 NY2d 785, 787-788; De Kovessey v Coronet Props. Co., 69 NY2d 448, supra; Consolidated Edison Co. v 10 W. 66th St. Corp., 61 NY2d 341). Appellants acknowledge this underlying rationale by their attempt to fashion the facts to fit it. They allege "actual occupancy” of the apartment by an estate agent or part-time employee who concededly resides elsewhere and only occasionally visits the prized premises. Indeed, appellants, to assuage respondents’ suspicions that the "agent” was an unauthorized subtenant, have on the record represented that she did not legally or actually occupy decedent’s apartment.

Our interpretations and applications of the governing statute should not, unwisely in our view, provide a legal inducement to estates, possessing limited windup responsibilities as to apartments of their decedents, to hoard potential dwellings from the market in the hope of a quick flip asset enhancement arising from a possibly forthcoming cooperative conversion plan. This "reverse warehousing” consequence in these instances would be inconsistent with the tenant protection scheme of General Business Law § 352-eeee.

Consolidated Edison Co. v 10 W. 66th St. Corp. (61 NY2d 341, supra) does not suggest a different result. There, we ruled that a corporation — the actual party to the lease, unlike the instant case — was a "tenant in occupancy” of an apartment which was actually occupied and maintained for the use of the corporate-lessee’s "directors, officers and guests” (id., at 345), not just for storage. In further contrast to the continuing corporate entity in Con Edison (id.), the entity at issue here, an estate, by its nature is transitory.

Another of our precedents, Manolovici v 136 E. 64th St. Assocs. (70 NY2d 785, 787-788, supra), also recognized in an exceptional set of circumstances that a would-be cooperative purchaser, who did not reside full time in the disputed premises, could nevertheless enjoy the special benefits of "tenant-purchaser” status. However, key to that case was the party’s "sufficient connection to the apartment” and that the apartment was actually being used "for the purpose of raising and sheltering [the plaintiffs] family”.

In sum, the prong of De Kovessey’s (69 NY2d 448, supra, at 457) conjunctive qualifying definition, that a tenant be "occupying the unit”, is unfulfilled in this case because the apartment here has no "tenant in occupancy” as legally contemplated under the statute. It is unnecessary to reach the question whether the other De Kovessey prong, that of "actual possession”, was met. Also, we need not now try to visualize the exceptional circumstances under which an estate "entity” might qualify for the exercise of an option to purchase at an insider’s price.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed, with costs.


author: Bellacosa, J. Hancock, Jr., J.

text:
    In the Matter of Marine Midland Bank, N. A., as Successor to Chautauqua National Bank and Trust Company of Jamestown, as Trustee under a Trust Created by Carl V. E. Gustafson, Deceased.
    Submitted September 7, 1989;
    decided November 21, 1989

      POINTS OF COUNSEL

      Richard V. Slater and Douglas A. Spoto for Daniel L. Gustafson, Jr., and another, appellants.
    I. The intent of the testator, demonstrated by the language of the will, justice and reason all support an interpretation of the term children of a deceased brother to include grandchildren. (Prowitt v Rodman, 37 NY 41; Matter of Weil, 151 Misc 841, 271 NY 608; Matter of Blodgett, 286 NY 602; Matter of Villalonga, 6 NY2d 477; Matter of McNeil, 18 AD2d 170; Matter of Keogh, 126 App Div 285.) II. In the alternative, the decision of the Surrogate should be affirmed.

      Samuel P. Price for Matthew William Gustafson, appellant.
    I. Matthew William Gustafson is entitled to a share as one of the issue of E. Leonard Gustafson. (Prowitt v Rodman, 37 NY 41; Matter of Weil, 151 Misc 841, 245 App Div 822, 271 NY 608; Matter of Brown, 93 NY 295; Matter of Blodgett, 286 NY 602; Matter of Paton, 111 NY 480; Matter of McNeil, 18 AD2d 170; Matter of Johnson, 33 Misc 2d 643; Matter of Hart, 185 Misc 791; Matter of Stecher, 190 Misc 502; Matter of Villalonga, 6 NY2d 477.) II. In the alternative, Matthew William Gustafson is entitled to a share because his grandfather, Leonard Gustafson, had a vested remainder. III. In the alternative, Matthew William Gustafson is entitled to a share as a distributee of Daniel L. Gustafson who had a vested remainder.

      Roger E. Hammer for Elizabeth Gustafson Elias, appellant.
    I. The will shows an over-all plan of distribution to pass the estate ultimately to the testator’s two brothers and their children and families. (Matter of Larkin, 9 NY2d 88; Matter of Fabbri, 2 NY2d 236.) II. An interest once vested will be divested only under the exact terms of the divestments. (Matter of Krooss, 302 NY 424.) III. Designation of a gift as class gift does not solve the problem. (Matter of Sweazey, 2 AD2d 292.) IV. The dicta of the Gautier case does not govern this case. (Matter of Gautier, 3 NY2d 502.) V. Rules of construction applied in doubtful cases involving the survivorship issue indicate that the use of the words "surviving child or children” be correlated with the use of the word "issue”. (Matter of Bogart, 62 Misc 2d 114; Matter of Sweazey, 2 AD2d 292.)

      Philip A. Erickson and Paul V. Webb, Jr., for Jacqueline Gustafson Lanphere, respondent.
    I. The remainder under this will was subject to a requirement of survival until the death of the life tenant. (Matter of Lockwood, 127 AD2d 973; Matter of Gautier, 3 NY2d 502; Paget v Melcher, 156 NY 399; Matter

      of Crane, 164 NY 71; Matter of Vander Roest, 175 App Div 941, 220 NY 664; Bryer v Finnen, 178 App Div 671; Matter of Daniell, 12 Misc 2d 359; Matter of Bostwick, 236 NY 242; New York Life Ins. & Trust Co. v Winthrop, 237 NY 93; Matter of Silsby, 229 NY 396.) II. Upon the death of the life tenant, the remainder vested in Jacqueline Lanphere as the only surviving child of Leonard Gustafson. (Matter of Villalonga, 6 NY2d 477; Matter of Welles, 9 NY2d 277; Matter of Keogh, 126 App Div 937, 293 NY 602; Palmer v Horn, 84 NY 516; Matter of Beuchner, 226 NY 440; Matter of Barnum, 29 AD2d 945.) III. This will shows an intent to benefit surviving immediate offspring only. (New York Life Ins. & Trust Co. v Phelps, 106 Misc 687; Matter of Durant, 109 Misc 62; Brown v Tanz, 176 App Div 795; Matter of McKim, 115 Misc 720; Palmer v Horn, 84 NY 516; Matter of Barnum, 29 AD2d 945; Matter of Vander Roest, 175 App Div 941, 220 NY 664; Herzog v Title Guar. & Trust Co., 177 NY 86; Tillman v Ogren, 227 NY 495; Banzer v Banzer, 156 NY 429; Roseboom v Roseboom, 81 NY 356.) IV. The arguments of the claimants under Daniel find no support in the terms of the will. (Matter of Silsby, 229 NY 396; Matter of Villalonga, 6 NY2d 477; Palmer v Horn, 84 NY 516.)
   OPINION OF THE COURT

Bellacosa, J.

In concluding that appellants are not entitled to inherit under the relevant gift provision of this disputed will, we reaffirm two basic principles governing the adjudication of decedents’ estates by courts: our primary function is to effectuate the testator’s intent and the words used to express that intent are to be given their ordinary and natural meaning.

Testator executed his will in 1955 and it was admitted to probate in 1959. At issue is clause (c) of paragraph fifth, which bequeaths part of the residuary of one of two trusts to the "surviving child or children” of testator’s brother Leonard, who predeceased the trust’s life tenant, testator’s widow, Elsie. A "surviving child” of Leonard, Jacqueline, is respondent before us and claims entitlement to the whole of that residuary portion. Appellants are the widow and children of Leonard’s other child, Daniel (Jacqueline’s brother), who, like his father, predeceased the life tenant. Daniel’s children, as appellants, strive to take under paragraph fifth’s gift provision and urge the courts to construe the word "children” to include grandchildren so that the collateral descendants of the testator, i.e., the grandnephews and grandnieces, can partake of the testamentary plan. Since they are faced with the fundamental proposition that the word "children” will be given its ordinary and natural meaning unless the will as a whole shows an unmistakable intent that different or remoter persons or classes should be included, they argue that the onetime use of the word "issue” in a different, inoperative clause of the will creates ambiguity and warrants forsaking the general rule of construction. Daniel’s widow, as separate appellant, seeks to inherit on an argument that his inchoate share vested in him prior to the death of the life tenant, Elsie.

We affirm the order of the Appellate Division because a construction which would substitute for the testator’s chosen word a broader, judicially applied definition is unwarranted and would be unsettling to the law of descent and distribution. Further, the relevant vesting date can be only the death of the life tenant.

Carl V. E. Gustafson was 59 years old, married and childless when he died in 1959. He disposed of virtually his entire estate through two trusts of equal size with an integrated, complementary residuary plan. The trust established in paragraph sixth provided that testator’s brothers, Leonard and Roy, were to be equal income beneficiaries, and upon the death of either of them his one-half interest in the trust (that is, a one-fourth interest in the residuary) would pass to "his child or children”. When Leonard died in 1978, his children, Jacqueline and Daniel, took equally of Leonard’s share in this trust. Roy continues his life tenancy in the other portion of this trust. The half of testator’s estate reflected in this trust is not involved in this case.

This case and appeal revolve around the trust created in paragraph fifth of the will, in which Elsie, testator’s widow, held a life estate. Upon her death, testator’s will directed the corpus of this trust be paid as follows:

"(a) One-half to my brother, E. Leonard Gustafson.

"(b) One-half to my brother, Roy L. Gustafson.

"(c) If a brother predeceases Elsie Warren Gustafson, then his share of this Trust shall be paid over to his surviving child or children, share and share alike.

"(d) If one of my brothers shall predecease Elsie Warren Gustafson, without issue surviving, then his part of this Trust shall be paid over to his surviving brother.” Roy survived Elsie and took his share pursuant to clause (b). This, too, is not involved in the case.

At issue then is only the portion that would have been Leonard’s one-quarter residuary share under clause (a), which, because of Leonard’s predeceasing Elsie, must pass through clause (c). Leonard’s son, Daniel, having also predeceased Elsie, leaves a widow and children who now seek to take a share of the residuary through this clause, though they are not "surviving child or children”.

Courts construing donative instruments are governed by a threshold axiom: a testator’s intent, as ascertained "from the words used in the will * * * according to their everyday and ordinary meaning”, reigns supreme (Matter of Walker, 64 NY2d 354, 357-358; Matter of Cord, 58 NY2d 539, 544; see also, 4 Page, Wills § 30.7, at 44). In Matter of Villalonga (6 NY2d 477, 484), the natural and ordinary meaning of the word at issue here was held and applied as follows: “ '[c]hildren’ means immediate offspring, and we reiterate the rule of the [Matter of] Schaufele [252 NY 65, 67] case that it will never be held to include grandchildren 'unless the will as a whole shows that unmistakable intent.’ ” (Emphasis added.) The will before us cannot clear that high hurdle.

The order of testator’s priorities is straightforwardly expressed in paragraph fifth. First, he provided for his widow as long as she lived. Then, upon her death, his brothers would benefit (para fifth [a], [b]). If his brothers) predeceased his widow, then the focus of testator’s beneficial intent shifted to the "surviving child or children” of his brothers) (para fifth [c]), a generation proximate to himself. The final subdivision of this paragraph provides that if a brother dies "without issue surviving”, the surviving brother takes all. Thus, if neither issue nor children survived one brother, the other brother (or his children or his issue) would take to prevent a lapse. Accordingly, from the four corners of the will’s relevant gift provision, assigning to each word its ordinary meaning, the testamentary scheme is reasonably discernible. Carl Gustafson wanted to benefit: (1) his widow while she lived; (2) his brothers who survived his widow; and (3) if a brother did not survive his widow, then the brother’s children) who did so survive. Those preferences of the testator as to the order and distribution of his property are not "incoherent”, "inequitable”, "inconsistent” or "anomalous”, but even if they were, testators are privileged to act in any way they see fit to displace the State’s otherwise mandated, homogenous distribution by intestacy, so long as they are compos mentis. Courts, on the other hand, are not privileged to put contrary or even additional words into a testator’s actual written expression in order retrospectively to effectuate their own notions of "fair” or "equitable” distribution of estates.

Prowitt v Rodman (37 NY 41 [1867]) does not support a different result. There, an exception to the plain meaning of "children” was allowed because "the testator intended that the remote descendants should be takers * * * if there should be a failure of the immediate offspring of [the trust life tenant]” (id., at 54 [emphasis added]; see also, Matter of Welles, 9 NY2d 277, 280 ["It seems to us that the only possible occasion justifying a more inclusive meaning (of 'children’) would be to avoid failure of the estate.”]). There is no failure of an estate here, which is the only justification for the exception to the paramount plain meaning rule of construction.

Nor is this case about the testator’s intention to disinherit unknown, collateral descendants two generations removed from him. The law of decedents’ affairs recognizes no rule requiring a testator to manifest an intent to disinherit in such circumstances. Rather, our rules relate to the testator’s intent to bestow a gift and to whom. In that respect, he was plain, precise and orderly, and appellants’ claim to a gift in this trust remainder by implication would wrongly extend the plainly expressed and universally understood words. Our ruling, therefore, is natural, not "narrow”, and a faithful application of the holding of the governing precedent, not an "extension” of it. Simply put, children means children in the judicial construction of this will.

The nongifted parties also weave a number of speculative scenarios designed to splice themselves into this will and into this testamentary plan. The problem, however, is that none of their hypotheses materialized and are therefore neither materially helpful nor relevant to the disposition of this controversy.

We must also address the vesting date with respect to the remainder of the trust at issue. The death of the testator’s life tenant, his widow, controls. Rather than "happenstance”, this is the common measuring device for the orderly transferences of decedents’ assets, a rule providing specificity, not serendipity. The vesting date here is arrived at by an application of well-settled principles of the law of future interests. The language of paragraph fifth (c) created a requirement of survival (see, 2A Powell, Real Property fl 328, at 763). When the first devisee or legatee takes a life estate, words of survivorship tend to " 'establish the time of the termination of all preceding interests as the time to which survival is required’ ” (Matter of Gautier, 3 NY2d 502, 509, quoting Restatement of Property § 251, at 1266). Here, the preceding interest terminated only upon the death of testator’s widow, Elsie, in 1986. Daniel’s predecease in 1981 is irrelevant in this respect and precludes his heirs from asserting that any entitlements inchoately vested in him before Elsie’s death to accrue later to their benefit.

As we have consistently held, the plain meaning of the testamentary language itself is the surest path to the judicial discernment of a testator’s donative intent. Expanding the application of exceptions to that sound general proposition would soon swallow the rule and render less secure the effectuation of testators’ relied upon, expressed intentions. Indeed, to create a new exception out of something called "paramount intent”, different from the intent clearly expressed on the face of a will and in its only relevant donative provision, would be seriously unsettling because it would sacrifice predictability, an especially crucial element in the field of decedents’ estates where "settled rules are necessary and necessarily relied upon” (Matter of Eckart, 39 NY2d 493, 500).

Accordingly, the order of the Appellate Division should be affirmed, with costs to all parties filing briefs payable out of the residuary trust at issue.

Hancock, Jr., J.

(dissenting). I would modify the order of the Appellate Division and hold that the term "children” in paragraph fifth (c) of the will includes grandchildren and, therefore, that Leonard’s share must be divided equally between his son Daniel’s surviving children, collectively, and his daughter, Jacqueline.

In my view, construing "children” narrowly here and, thereby, disinheriting the lineal descendants of one of the testator’s brothers is unwarranted and represents a distinct— and unfortunate — extension of the "unmistakable intent” rule. In Matter of Villalonga (6 NY2d 477), where we applied that rule and declined to read "children” broadly, we emphasized that: (1) the will there was "a simple one * * * and not afflicted with the weakness of ambiguity” (id., at 481), (2) "[t]here [was] no interchangeable use made of the terms 'children’ and 'issue’ ” (id., at 481), and (3) "[n]or [did] the general distributive scheme disclose a testamentary purpose to benefit children of predeceased immediate offspring together with surviving immediate offspring” (id.). Those very factors— the absence of which led our court to construe "children” narrowly in Villalonga — are present in this case.

The will here is ambiguous. The ambiguity arises, in part, from the interchangeable use of the terms "children” and "issue” in paragraph fifth. Also, the use of "issue” in paragraph fifth (d) manifests a clear intention to benefit a predeceasing brother’s surviving lineal descendants — not just the brother’s immediate offspring as a narrow reading of "children” in paragraph fifth (c) suggests. Moreover, the intent of the testator as indicated by the language and structure of the entire will seems straightforward: to make gifts to his brothers or their respective family lines, treating them equally. Indeed, there is nothing in the testamentary scheme to suggest that the testator wanted to disinherit the family of his brother’s son (Daniel’s family), in favor of that brother’s other child (Jacqueline), on the seemingly unrelated and meaningless contingency of his brother’s son predeceasing his widow.

Significantly, the Villalonga court itself reaffirmed the well-established exception to the rule it applied, viz., that where uncertainty exists, "children” should be given a broad construction to avoid an inequitable result (id., at 482-483). Quoting Matter of Paton (111 NY 480, 486), our court reiterated that, "[o]f course, if the language employed 'is equally susceptible of one or another interpretation, we should, on every principle of right, and within the spirit of the authorities, give it that which is most equitable and consonant with the dictates of justice’ ” (6 NY2d, at 484 [emphasis added]; see also, id., at 486 [Desmond, J., dissenting]; Matter of Blodgett, 286 NY 602, affg 250 App Div 324 and 261 App Div 878; Matter of Brown, 93 NY 295, 295-299; Prowitt v Rodman, 37 NY 42, 54, 58; Guernsey v Guernsey, 36 NY 267, 271; Mowatt v Carow, 7 Paige 328; 4 Kent’s Com 419, n). Accordingly, we should construe "children” in paragraph fifth (c) as "issue” and, thereby, avoid an incoherent interpretation of paragraph fifth (c) and (d) and, at the same time, avoid the patent inequity which otherwise results.

The majority’s attempt to reconcile paragraph fifth (c) and (d) avoids neither problem. Nor does it withstand scrutiny. Paragraph fifth (d) cannot fairly be read — as the majority contends — as providing that, "if neither issue nor children survived one brother, the other brother (or his children or his issue) would take to prevent a lapse.” (Majority opn, at 453 [emphasis added].) Plainly, the language of paragraph fifth (d) does not so provide. It does no more than give the share of the estate in question to the "surviving brother” if the other dies "without issue surviving”. There is no language in paragraph fifth (d) itself that directs or permits "issue” (or "children”) to take. Only paragraph fifth (c) can be read as providing for that, and then, only if "children”, as used by the testator, is construed to mean "issue”.

Indeed, the majority’s contention, that paragraph fifth (d) permits a devise to a brother’s "issue” under certain circumstances, plainly undercuts their position and supports the view taken here. Their contention necessarily recognizes the basic point that "issue” (i.e., children of deceased children) were intended to be beneficiaries in some situations. But because, as noted, such a disposition cannot be effected under paragraph fifth (d), it follows that it can only be made under paragraph fifth (c) — i.e., by construing "children” in paragraph fifth (c) broadly as permitting "issue” to take.

Similarly, other provisions in the will either make little sense or run counter to the testator’s over-all design if "children” is narrowly construed. For example, the distribution under paragraph sixth, providing for the direct gifts to the testator’s two brothers, would have failed if one of them had died with grandchildren or other issue, but with no surviving immediate offspring. And the very same would be true for paragraph eighth — which was explicitly intended to cover any bequest elsewhere in the will that might fail. Under that paragraph, as under paragraphs fifth and sixth, if "children” is read narrowly, there would be no provision for the very real contingency of a brother dying with no surviving sons or daughters, but with grandchildren or other lineal descendants still alive. Thus, paragraph eighth, intended to avoid intestacy, would actually have permitted intestacy if read strictly.

I would resolve the ambiguities, and avoid the otherwise resulting inconsistencies and anomalies in the will, by broadly construing "children” to mean "issue”. Such a construction would, in my view, yield the most reasonable and fair result— i.e., permitting Leonard’s son’s family (Daniel’s family) as well as Leonard’s daughter (Jacqueline) to share in the estate— and, thereby, avoid the certainly unintended inequity of depriving Daniel’s children on the mere happenstance that their father died before their great uncle’s widow. Finally, construing "children” broadly would, thus, give effect to the testator’s paramount intent.

Chief Judge Wachtler and Judges Alexander and Titone concur with Judge Bellacosa; Judge Hancock, Jr., dissents in part and votes to modify in a separate opinion in which Judges Simons and Kaye concur.

Order affirmed, etc.

      . Paragraph sixth (e) provides: "If a brother predeceases me, then his share of the Trust provided hereby shall be paid over to his child or children, share and share alike.”

      . Paragraph eighth provides: "If any Trust or Legacy hereunder shall be voided; or, if any intestacy develops * * * then such legacy or intestacy shall be * * * paid over to my brothers * * * or to the child or children of a deceased brother, share and share alike.”


author: Chief Judge Wachtler.

text:
    In the Matter of Thomas De Mayo, Claimant, v Rensselaer Polytech Institute et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers’ Compensation Board, Respondent.
    Argued October 18, 1989;
    decided November 21, 1989

      POINTS OF COUNSEL

      Morris N. Lissauer for appellant.
    The Workers’ Compensation Board erred as a matter of law in holding that the Special Fund for Reopened Cases under Workers’ Compensation Law § 25-a was subject to the penalty provisions of Workers’ Compensation Law §25 (3) (former [c]). (Matter of Capital Newspapers v Whalen, 69 NY2d 246; Price v Price, 69 NY2d 8; Matter of Collins v National Aniline Div., 8 AD2d 900; Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150; Matter of Howard v Wyman, 28 NY2d 434; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Scheib v Herman Mgt., 91 AD2d 794, 59 NY2d 606.)

      Robert Abrams, Attorney-General (Pico Paul Ben-Amotz, O. Peter Sherwood, Peter H. Schiff, Jane Lauer Barker and Theresa E. Wolinski of counsel), for Workers’ Compensation Board, respondent.
    The Board properly found that the Special Fund’s failure to make a timely payment of an award warranted a penalty under the provisions of Workers’ Compensation Law § 25 (3) (former [c]). (New York Cent. R. R. Co. v White, 243 US 188; Matter of Jensen v Southern Pac. Co., 215 NY 514, 244 US 205; Matter of Hart v Perkins, 258 NY 61; Matter of Surdi v Premium Coal & Oil Co., 71 AD2d 964, 52 NY2d 860; Matter of Devito v Imbriano, 39 AD2d 796, 33 NY2d 757; Matter of Dennett v Dennett Refrig. Equip., 38 AD2d 659; Matter of Scalesse v Printing Adv. Corp., 36 AD2d 335, 30 NY2d 234; Matter of Berlinski v Congregation Emanuel, 29 AD2d 1036; Matter of Tipton v Lang’s Bakery, 250 App Div 696, 275 NY 572; Matter of Scheib v Herman Mgt., 91 AD2d 794, 59 NY2d 606.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Thomas De Mayo, the claimant here, injured his right ankle and knee in August of 1974 while he was working for Rensselaer Polytechnic Institute in Troy. The Workers’ Compensation Board (Board) awarded the claimant benefits for the period between August 9, 1974 and November 4, 1974, and in 1982, the case was closed. In January of 1983, however, based on a medical report that indicated that claimant might be suffering from bursitis and that he was neither working nor able to do his usual work, the Board reopened his case. In a decision filed August 6, 1985, the Workers’ Compensation Law Judge awarded the claimant a 30% schedule loss of the use of his right leg. Because the case was reopened more than seven years from the date of the accident and more than three years since the last payment of compensation, the employer’s insurance carrier was discharged and liability for payment of the award shifted to the Special Fund for Reopened Cases (Special Fund) pursuant to section 25-a of the Workers’ Compensation Law. Claimant received his award on August 24, 1985, 18 days after the Board’s decision was filed.

The question presented by this appeal is whether the Special Fund is subject to liability under Workers’ Compensation Law § 25 (3) (former [c]) (now § 25 [3] [d]), which provides for the assessment of a 20% penalty against an employer or insurance carrier that fails to pay or appeal an award within 10 days. Following claimant’s request that the Board assess the statutory penalty, the Workers’ Compensation Law Judge conducted a hearing and determined that the Special Fund was liable to the claimant for the amount of the penalty. A three-member panel of the Board affirmed this determination. The Special Fund applied for appeal of the panel’s determination by the full Board. The full Board rescinded the Board’s earlier decision and referred the case back to the panel for further consideration. The panel again upheld the imposition of the penalty. On appeal to the Appellate Division, the Special Fund claimed that the Board had erred as a matter of law in holding the Special Fund subject to the penalty provision since the Special Fund was not an employer and did not fall within the statutory definition of an insurance carrier contained at section 2 (12) of the Workers’ Compensation Law. The Appellate Division affirmed the Board’s determination, holding that "[t]he omission of the Special Fund from the general statutory definition of a carrier does not * * * evince any clear legislative intent to immunize it from the obligation to make timely payment of awards for which it is liable.” (144 AD2d 740, 741.)

As a preliminary matter, we would note that the Appellate Division need not have accorded deference to the construction of the Workers’ Compensation Law adopted by the Board in this matter (see, Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150, 154). "Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data or inferences to be drawn therefrom,” the standard of review is indeed the rationality of the agency determination (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; see also, Matter of Howard v Wyman, 28 NY2d 434, 438). The case now before us, however, involves a "question * * * of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” (Kurcsics v Merchants Mut. Ins. Co., supra, at 459; see also, Matter of Thomas v Bethlehem Steel Corp., supra, at 154). For that reason, "there is little basis to rely on any special competence or expertise” of the Board and, accordingly, no need to defer to its findings (Kurcsics v Merchants Mut. Ins. Co., supra, at 459). Thus, it would appear that the Appellate Division erred in reviewing the rationality of the Board’s determination and according great weight to the Board’s interpretation of the statutory penalty provision.

Despite the misapprehension of the proper standard of review, the Appellate Division nonetheless reached the correct result in this case. Liability for payment of a compensation award under section 25-a shifts from the insurance carrier to the Special Fund simply by virtue of the passage of the requisite period of time (see, Workers’ Compensation Law § 25-a [1]; see also, Matter of Dennett v Dennett Refrig. Equip., 38 AD2d 659, 660; Matter of Scalesse v Printing Adv. Corp., 36 AD2d 335, 338, revd on other grounds 30 NY2d 234; Matter of Berlinski v Congregation Emanuel, 29 AD2d 1036, 1037). Once section 25-a (1) has been triggered, the insurance carrier has no further interest in payment of the claim. This statutory scheme contemplates that the Special Fund will step into the shoes of the insurance carrier and succeed to its rights and responsibilities. It is illogical to suppose that the Special Fund succeeds only to the carrier’s duty to pay an award and not to the statutory requirements that relate to the timing of such payment. We conclude, therefore, that the Special Fund has a responsibility to pay claimants promptly and that it should be fully subject to the 20% penalty contained in section 25 (3) (former [c]) whenever it fails to make a payment within 10 days (compare, Matter of Scheib v Herman Mgt., 91 AD2d 794, lv denied 59 NY2d 606).

In reaching this conclusion, we find the language of section 25-a (2) instructive. This section states in relevant part that "[t]he provisions of this chapter with respect to procedure and the right to appeal shall be preserved to the claimant and to the employer originally liable for the payment of compensation and to such fund through its representative as hereinafter provided.” This subdivision ensures that a claimant has the same set of procedural rights when the Special Fund is responsible for payment of an award as when an insurance carrier is responsible. It follows from the language of this subdivision that a claimant should be entitled to request assessment of the statutory late penalty against the Special Fund since assessment of this penalty is one of the procedural rights available to a claimant against a responsible insurance carrier.

Our holding today is consistent with the policy of ensuring that compensation payments are received promptly by those injured workers who are entitled to them (see, Workers’ Compensation Law § 25 [1]; see also, Matter of Hart v Perkins, 258 NY 61, 65; Matter of Deas v New York City Hous. Auth., 74 NY2d 914 [decided today]). The statutory penalty provides strong motivation to all responsible entities to see that payments are timely made. Our reading of the statute is also consistent with the practice of construing the Workers’ Compensation Law liberally to advance its economic and humanitarian purposes (see, Matter of Holcomb v Daily News, 45 NY2d 602, 607; Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145).

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

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.