text:
    Jeanne Bertuna, Appellant, v Greatway Import-Export Company, Respondent.
    Submitted January 3,1995;
    decided January 17, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed the judgment of Supreme Court dismissing plaintiff’s complaint, denied; motion, insofar as it otherwise seeks leave to appeal, etc., dismissed upon the ground that it does not lie.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Jose Hernandez, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Submitted October 24,1994;
    decided January 17, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of George Jemzura et al., Appellants, v Carl J. Mugglin, as Justice of the Supreme Court, Respondent.
    Submitted December 27, 1994;
    decided January 17,1995
   Motion for reconsideration of December 1, 1994 order of dismissal, insofar as it is made by George Jemzura purportedly on behalf of Raymond Jemzura, dismissed upon the ground that George Jemzura is not Raymond Jemzura’s authorized legal representative; motion for reconsideration otherwise denied. Motion for poor person relief dismissed as academic. [See, 84 NY2d 977.]


text:
    In the Matter of Jeremy TT. and Others, Children Alleged to be Abandoned. Broome County Department of Social Services, Respondent; Glenn TT., Appellant.
    Submitted November 21,1994;
    decided January 17, 1995
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Alan Kassebaum, Appellant, v Ali al-Rahman, Respondent.
    Submitted December 19,1994;
    decided January 17, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Angelina Libardi, Respondent, v City of New York, Appellant, Steven Kogel, Respondent, et al., Defendants.
    Submitted October 11,1994;
    decided January 17, 1995
   Motion, insofar as it seeks renewal of the motion for leave to appeal from the Appellate Division order, denied [see, 84 NY2d 850]; motion, insofar as it is treated as a motion for leave to appeal from the final judgment in the action pursuant to CPLR 5602 (a) (1) (ii), dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


author: Titone, J.

text:
    [647 NE2d 732, 623 NYS2d 520]
    Joseph Petito, Respondent, v Alice-Mary Piffath, as Administratrix of the Estate of Ralph P. Piffath, Appellant, et al., Defendants.
    Argued October 25, 1994;
    decided December 13, 1994

      POINTS OF COUNSEL

      Horn & Horn, Huntington (Jeffrey S. Horn of counsel), for appellant.

      Sharon Weintraub Dashow, Brooklyn, for respondent.
   OPINION OF THE COURT

Titone, J.

This case presents the question whether under General Obligations Law §§ 17-101, 17-105 (1) or §17-107 (2) (b) a stipulation settling a foreclosure action could properly be construed as a written acknowledgment of the underlying mortgage debt, a promise to pay or a part payment of that debt sufficient to revive an otherwise time-barred claim based upon the mortgage. Under the circumstances presented in this somewhat idiosyncratic case, we hold that plaintiff’s stale claim on the mortgage was not revived.

Defendant’s decedent, Ralph Peter Piffath, initially borrowed approximately $200,000 from Roslyn Savings Bank (Roslyn) in order to purchase real property located at 35 Gilpin Ave., Hauppauge, New York. In exchange for the loan, he executed a note and a mortgage whose terms required monthly payments for a period of 10 years, with a balloon payment of the remaining principal to be paid on April 1, 1980. Piffath evidently failed to make the balloon payment on time. He and his wife did make a payment of $1,932 on August 7, 1980, but this payment left a substantial balance outstanding. Accordingly, Roslyn instituted foreclosure proceedings.

These proceedings terminated in a settlement that was embodied in a stipulation executed on June 24, 1981. The stipulation provided that the action was settled "upon the following terms and conditions”:

"1. That defendant, ralph peter piffath, shall pay to the plaintiff the sum of * * * $197,455.57. That in consideration for said payment and subject to collection, [Roslyn] shall deliver an assignment of mortgage in recordable form to defendant’s designee, Gerald piffath [Ralph Piffath’s brother]. The aforesaid assignment shall be without recourse or warranty of any kind * * *.
"2. [Roslyn’s] attorneys agree to make application to the Court for an order vacating the judgment of foreclosure and sale, discontinuing the action and cancelling the notice of pendency of action without cost to either party.”

It is undisputed that Roslyn was paid the $197,455.57 specified in the stipulation, that the foreclosure action was discontinued and that the mortgage was, in fact, assigned to Piffath’s brother. It is also undisputed that Piffath decided to have the mortgage assigned to his brother rather than satisfied and extinguished because he wanted to preserve it as a means of preventing his other lien creditors from levying against his property.

Shortly after this transaction was completed, the mortgage was used as collateral to secure a $50,000 loan made by Marine Midland Bank to Hydrodyne Industries, a corporation that was then controlled by Piffath and his brother. As a result of Hydrodyne’s continuing financial difficulties, the Piffaths entered into an arrangement with plaintiff Petito in 1982 under which plaintiff agreed to refinance Hydrodyne’s debt and the mortgage on Piffath’s Hauppauge property was assigned to plaintiff (subject to the pledge to Marine Midland).

In October of 1986, Piffath commenced an RPAPL 1501 (4) proceeding for a declaration that the mortgage no longer had any legal effect because its enforcement was barred by the six-year Statute of Limitations (see, CPLR 213 [4]). In response, plaintiff commenced a plenary foreclosure action in Suffolk County in February 1987. The Supreme Court, Suffolk County (Friedenberg, J.), consolidated the two cases for trial in Queens County, and a bifurcated hearing was held before a Judicial Hearing Officer (JHO).

With regard to the enforceability of the mortgage, the JHO held that Piffath should be equitably estopped from asserting the Statute of Limitations as a defense because of his conduct in keeping the mortgage alive as a means of "defrauding” his creditors. The JHO also concluded that Piffath was properly held responsible because he had intentionally placed the mortgage in "the field of commerce” when he assigned it to his brother. With regard to the amount owed, the JHO determined that the sum of $183,586.45 was due and that, with interest, costs and disbursements, plaintiff was entitled to recover the sum of $351,486.18. A judgment for that amount was entered against Piffath.

On cross appeals by plaintiff and Piffath’s administratrix, the Appellate Division modified by changing the last date for the assessment of interest and otherwise affirmed. The Court rejected the JHO’s conclusion that Piffath was equitably es-topped from asserting the Statute of Limitations because of his intent to "defraud” his creditors, since "there [was] no evidence that * * * Piffath misled the plaintiff” (199 AD2d 252, 253). Nonetheless, the Court held that enforcement of the mortgage was not barred by the Statute of Limitations. In the Court’s view, Piffath’s 1981 stipulation with Roslyn "amounted to a promise to pay a mortgage debt * * * thereby causing the Statute of Limitations to run anew” (id., at 253, citing General Obligations Law § 17-105; Aleci v Tinsley’s Enters., 102 AD2d 808). Plaintiff’s 1987 foreclosure action was therefore timely under CPLR 213 (4). Piffath’s administratrix now appeals by permission of this Court, challenging the latter aspect of the Appellate Division’s analysis.

At the outset, we note our agreement with the Appellate Division’s conclusion that Piffath’s administratrix cannot be estopped from asserting the Statute of Limitations because of Piffath’s so-called "fraudulent” conduct. Although this Court has held that a party may be estopped from pleading the Statute of Limitations as a defense where a "defendant’s affirmative wrongdoing * * * produced the long delay [in bringing suit]” (General Stencils v Chiappa, 18 NY2d 125, 128; see, Simcuski v Saeli, 44 NY2d 442), that principle has no application where, as here, the decedent’s "fraudulent” conduct was not aimed at the plaintiff and did not in any way prevent the plaintiff from commencing a timely action.

The remaining substantive issue, however, is not so easily resolved. Whether an unadorned agreement to pay a sum of money to settle an action on a debt constitutes an acknowledgement of the debt sufficient to renew the running of the Statute of Limitations for enforcement of the debt itself has not been squarely addressed by this or any other appellate court in this State. The issue is squarely presented here because, unlike in most situations in which an action is settled, the settlement in this case did not result in an extinguishment of the underlying instrument evidencing the debt, i.e., the Roslyn mortgage. Instead, because of Piffath’s desire to obstruct his other creditors, the settlement with Roslyn was structured so as to preserve the enforceability and legal effect of that instrument.

Resolution of this controversy depends on the proper application of General Obligations Law §§ 17-101, 17-105 (1) and § 17-107 (2) (b). Section 17-101 provides that "[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the [CPLR].” Under General Obligations Law § 17-105 (1), "a [written] promise to pay the mortgage debt, if made after the accrual of a right of action to foreclose the mortgage * * *, either with or without consideration” makes the time limited for the commencement of the action "run from the date of the * * * promise.” Finally, under General Obligations Law § 17-107 (2) (b), a partial payment "on account of the indebtedness secured by a mortgage,” is effective to revive an action to recover such indebtedness in favor of the mortgagee "or his assignee” or any other party who subsequently succeeds to an interest in the mortgage’s enforcement.

Plaintiff, the assignee of Roslyn’s mortgage, argues that Piffath’s 1981 agreement to pay Roslyn the sum of $197,455.57 constituted either an acknowledgment of the outstanding mortgage debt within the meaning of General Obligations Law § 17-101 or a new promise to pay within section 17-105 (1). Alternatively, plaintiff argues that Piffath’s payment of the amount specified in the settlement agreement constituted a partial payment "on account of the indebtedness secured by a mortgage” within General Obligations Law § 17-107 (2) (b) and was therefore sufficient to recommence the running of the six-year Statute of Limitations governing such debts. However, the application of the debt-acknowledgment and partial-payment statutory provisions to these facts is not so clear.

Piffath’s agreement to pay Roslyn $197,455.57 contains neither an express acknowledgment of his indebtedness nor an express promise to pay the mortgage debt per se. Rather, the agreement contained only a promise to pay Roslyn a specific sum in exchange for Roslyn’s agreement to forego prosecution of its foreclosure action and assign the mortgage to Piffath’s nominee. The facts in this case are thus analogous to those in Morris Demolition Co. v Board of Educ. (40 NY2d 516), in which this Court held that an executed stipulation partially settling a contractor’s claim for payment for work performed did not constitute an acknowledgment of a larger debt or partial payment of that debt within the meaning of General Obligations Law § 17-101, because the writing "did not recognize an existing debt” (id., at 521; see also, Connecticut Trust & Safe Deposit Co. v Wead, 172 NY 497). A fortiori, the stipulation in this case, which was followed by actual payment of an outstanding debt that arose pursuant only to that stipulation, cannot be deemed an acknowledgment of an outstanding debt sufficient to restart the running of the Statute of Limitations under General Obligations Law § 17-101.

Plaintiffs argument predicated on the provisions of General Obligations Law § 17-105 (1) regarding "a [written] promise to pay the mortgage debt” is no more persuasive. The promise to pay $197,455.57 that is contained in the settlement agreement represents Piffath’s undertaking of a new obligation in exchange for Roslyn’s promises to terminate the foreclosure action and assign the mortgage to Piffath’s brother. As such, it is not a “promise to pay the mortgage debt” and consequently does not suffice to satisfy the statute.

For similar reasons, Piffath’s payment of $197,455.57 cannot be deemed a partial payment “on account of the indebtedness secured by a mortgage” under General Obligations Law § 17-107 (2) (b). The defect in plaintiff’s claim under section 17-107 (2) (b) is no different from that of his claim under section 17-105 (1): both the promise to pay and the “part payment” on which plaintiff relies are referable not to the mortgage debt that plaintiff seeks to enforce, but rather to the agreement between Piffath and Roslyn, as to which plaintiff has no rights at all.

Moreover, Piffath’s payment to Roslyn did not satisfy the long-standing rule under section 17-107 (2) (b)’s predecessor that ”[i]n order to make a money payment a part payment within the statute, the burden is upon the creditor to show that it was * * * accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due” (Crow v Gleason, 141 NY 489, 493). The rule is a natural corollary of the principle that there must be sufficient basis "as [would] warrant a jury in finding an implied promise to pay the balance” (id., at 493). Manifestly, such a showing cannot be made where, as here, the payment was pursuant to a settlement intended to put the outstanding monetary obligations between the parties to rest.

In short, neither the settlement agreement nor the payment Piffath made pursuant thereto provides a cognizable basis for ruling that the Statute of Limitations on Piffath’s mortgage debt began to run anew in 1981. Thus, by 1986 — the first time that the courts were called upon to consider the enforceability of the debt — it was time-barred. It follows that the courts below erred in granting plaintiff judgment on that debt.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the Petito complaint dismissed and, on the Piffath complaint, judgment granted declaring that all claims under the bond and mortgage are barred by the Statute of Limitations.

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

Order reversed, with costs, the Petito complaint dismissed and, on the Piffath complaint, judgment granted in accordance with the opinion herein.

      . The $50,000 had been borrowed to enable Piffath to pay Roslyn the full amount of the agreed-upon settlement.

      . Further proceedings for a foreclosure sale had been rendered unnecessary, because, by agreement of the parties, the Hauppauge property securing the mortgage had been sold and the proceeds secured by a bond to provide a fund against which any judgment in the foreclosure action could be enforced. The parties’ actions in this regard thus resulted in a de facto conversion of the foreclosure action to one for a money judgment alone.

      . The Appellate Division remitted to Supreme Court for a ministerial "recalculation of interest” in accordance with its conclusion that interest should be computed to July 12,1990 rather than May 24,1990.

      . The parties to this appeal have not made any arguments regarding the applicability of General Obligations Law § 17-101’s debt-acknowledgment provisions to a situation where the claimed "acknowledgment” was made to a third-party rather than to the person seeking to enforce the debt. We have thus not considered the degree to which plaintiff’s rights under the statute may have been affected by the fact that Piffath’s purported "acknowledgment” was made to Roslyn and not to him (see generally, Matter of Kendrick, 107 NY 104; DeFreest v Warner, 98 NY 217; cf., General Obligations Law § 17-107 [2] [b]).


text:
    [647 NE2d 736, 623 NYS2d 524]
    William J. Burke et al., Respondents, v Matthew T. Crosson, as Chief Administrator of the Courts of the State of New York, and as Representative of the Administrative Board of the Judicial Conference of the State of New York, et al., Appellants.
    Argued January 5, 1995;
    decided February 9, 1995

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Frank K. Walsh, Jerry Boone and Peter H. Schiff of counsel), for Edward Regan and another, appellants.

      Michael Colodner, New York City, John Eiseman and John J. Sullivan for Matthew T. Crosson, appellant.

      Julian & Pertz, P. C., Utica (Robert F. Julian of counsel), for respondents.
   OPINION OF THE COURT

Titone, J.

Plaintiffs, three Onondaga County Court Judges, commenced this action, inter alla, to challenge the disparity that exists between their salary and the salary of their counterparts in 13 other counties. Defendants seek appellate review of a Supreme Court decision that dismissed most of plaintiffs’ claims but granted them summary judgment on their first cause of action. The critical threshold issue on this appeal by defendants from the final Supreme Court judgment awarding attorneys’ fees is whether, in a prior appeal, the Appellate Division erred in declining to consider the merits of this determination on the ground that it was embodied in an earlier judgment that was final and therefore not reviewable under CPLR 5501 (a) (1). We now hold that the Appellate Division misapprehended the principles governing the finality of judgments and that, accordingly, its refusal to review the issue defendants proffered was error.

A brief summary of this case’s procedural history is necessary to an understanding of the finality problem its facts present. Plaintiffs’ complaint for declaratory and monetary relief set forth 16 causes of action, all relating to the difference between plaintiffs’ salaries and the higher salaries paid to County Court Judges in other counties. A 17th cause of action concerned the difference between plaintiffs’ salaries and the salaries paid to Court of Claims Judges. The gist of plaintiffs’ complaint was that the pay discrepancies violated their constitutional rights to equal protection because there was no rational economic or judicial basis for the disparate treatment. In addition to seeking a favorable declaration, plaintiffs’ complaint sought a judgment for back pay retroactive to October 1, 1978 and an incidental award of attorneys’ fees under 42 USC § 1988.

The Supreme Court agreed with plaintiffs that the discrepancy between their salaries and those of Albany County Court Judges was not rationally based. Accordingly, on November 15, 1991, the Supreme Court granted plaintiffs’ motion for summary judgment on their first cause of action and awarded them the back pay they sought. The court also granted plaintiffs counsel fees pursuant to 42 USC § 1988, but it postponed assessment of the amount pending a hearing. Plaintiffs’ 16 other causes of action were dismissed as either moot or lacking in substantive merit.

Plaintiffs appealed from the Supreme Court’s dismissal of their remaining 16 causes of action. Defendants, however, did not take a cross appeal at that time. Instead, they proceeded directly to the hearing in which the question of the amount of attorneys’ fees was to be litigated. Following that hearing, the trial court awarded $13,125 in attorneys’ fees and a judgment for that amount was entered against defendants on May 7, 1992. Defendants then took an appeal from that judgment, asserting that the appeal brought up for review the Supreme Court’s November 15, 1991 order disposing of the pay disparity issue.

The Appellate Division simultaneously decided both parties’ appeals. On plaintiffs’ appeal, the Appellate Division affirmed the result in the Supreme Court, concluding that the dismissal of 16 of the 17 causes of action was proper. Additionally, it held that the November 15, 1991 disposition against defendants was a "final” judgment under the doctrine of implied severance and that it therefore "cannot be brought up for review on appeal from the [subsequent] order [assessing attorneys’ fees]” (191 AD2d 997, 998, citing Crystal v Manes, 130 AD2d 979; Acres v Hitchcock, 77 AD2d 744). That view was also implicitly incorporated into the Court’s decision on defendants’ appeal from the attorney-fee award, in which the Appellate Division reversed and remitted for further proceedings on the attorney-fee assessment question alone without addressing the merits of the underlying determination on the pay disparity question.

On remand, Supreme Court reduced plaintiffs’ attorneys’ fees award to $9,185.69, and judgment to that effect was entered on January 20, 1994. Defendants then successfully moved this Court for leave to appeal from this judgment (denominated an "order”), seeking review of "so much of the prior nonfinal [Appellate Division] order * * * as affirmed [the] nonfinal order of Supreme Court, entered November 15, 1991 * * * granting plaintiffs summary judgment on their first cause of action and awarding back pay.” Defendants’ appeal requires us to decide the correctness of the Appellate Division’s threshold determination that review of the November 15, 1991 Supreme Court disposition was not authorized by CPLR 5501 (a) (1), the reviewability provision applicable to defendants’ appeal.

Under CPLR 5501 (a) (1), an appeal from a final judgment brings up for review "any non-final judgment or order which necessarily affects the final judgment * * * provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken.” Since this provision authorizes review only of prior judgments and orders that are nonfinal, the classification of a particular judgment or order as final or nonfinal is critical to the statute’s proper application. We note that, contrary to plaintiffs’ argument here, the concept of finality as used in CPLR 5501 (a) (1) is identical to the concept of finality that is routinely used to analyze appealability under article VI, § 3 (b) (1), (2) and (6) of the State Constitution and the related statutory provisions (see, CPLR 5601, 5602).

The concept of finality is a complex one that cannot be exhaustively defined in a single phrase, sentence or writing (see generally, Cohen and Karger, Powers of the New York Court of Appeals § 9, at 39; Scheinkman, The Civil Jurisdiction of the New York Court of Appeals: The Rule and Role of Finality, 54 St John’s L Rev 443). Nonetheless, a fair working definition of the concept can be stated as follows: a "final” order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters (see generally, Cohen and Karger, op. cit., §§ 10, ll). Under this definition, an order or judgment that disposes of some but not all of the substantive and monetary disputes between the same parties is, in most cases, nonfinal. Thus, a nonfinal order or judgment results when a court decides one or more but not all causes of action in the complaint against a particular defendant or where the court disposes of a counterclaim or affirmative defense but leaves other causes of action between the same parties for resolution in further judicial proceedings (see, e.g., Marna Constr. Corp. v Town of Huntington, 31 NY2d 854).

An exception to these general principles exists in situations where the causes of action or counterclaims that have been resolved may be deemed to be "impliedly severed” from those that have been left pending. Where implied severance is available, the order resolving a cause of action or counterclaim is treated as a final one for purposes of determining its appealability or reviewability.

The "implied severance” doctrine has had a checkered history and our past articulations of the rule have been somewhat difficult to reconcile (see, e.g., Associated Coal Sales Corp. v Hughes, 46 NY2d 1071; Orange & Rockland Utils. v Howard Oil Co., 46 NY2d 880; Ratka v St. Francis Hosp., 44 NY2d 604; Lizza Indus, v Long Is. Light Co., 36 NY2d 754; Behren v Papworth, 30 NY2d 532; Rose v Bailey, 28 NY2d 857; Kelly v Bremmerman, 21 NY2d 195; Sirlin Plumbing Co. v Maple Hill Homes, 20 NY2d 401). However, as may be discerned from a close review of our contemporary decisions on the point, the "implied severance” doctrine has now evolved into a very limited exception to the general rule of nonfinality.

Under this approach to implied severance, an order that disposes of some but not all of the causes of action asserted in a litigation between parties may be deemed final under the doctrine of implied severance only if the causes of action it resolves do not arise out of the same transaction or continuum of facts or out of the same legal relationship as the unresolved causes of action (see, Heller v State of New York, 81 NY2d 60, 62, n 1; Lizza Indus. v Long Is. Light. Co., supra). Thus, for example, an order dismissing or granting relief on one or more causes of action arising out of a single contract or series of factually related contracts would not be impliedly severable and would not be deemed final where other claims or counterclaims derived from the same contract or contracts were left pending. Similarly, where a negligence cause of action has been dismissed but there remain other claims for relief based on the same transaction or transactions, the doctrine of implied severance is not available, even though the underlying legal theories may be very different. Finally, implied severance is not applied where the court’s order "decides some issues of relief but leaves pending between the same parties other such issues[, thereby] in effect dividing] a single cause of action” (Sontag v Sontag, 66 NY2d 554, 555).

Viewed against these principles, the November 15, 1991 order granting plaintiffs summary judgment on their first cause of action and dismissing the others cannot be deemed final. Although all of the substantive issues between the parties were resolved, the order was facially nonfinal, since it left pending the assessment of attorneys’ fees — a matter that plainly required further judicial action of a nonministerial nature.

Moreover, implied severance was not available under these facts as a means of converting that facially nonfinal order to a theoretically final one. The resolved causes of action for declaratory and monetary relief were based on the same continuum of facts as the unresolved 42 USC § 1988 attorney-fee claim, i.e., the enactment of a judicial salary scheme that, in plaintiffs’ view, violated their right to equal protection of the laws. Without that legislative act and the surrounding circumstances that plaintiffs allege rendered the act unlawful, there was no predicate for either a substantive cause of action or a claim for the attorneys’ fees incurred in vindicating plaintiffs’ rights.

Indeed, plaintiffs’ request for attorneys’ fees was made in the form of a demand for "costs,” which was included in the boilerplate portion of the complaint seeking "[s]uch other, further and different relief which the Court may deem just and proper.” As such, the request for attorneys’ fees was an integral part of each of the asserted causes of action rather than a separate cause of action of its own. It has previously been said that a request for back pay and a request for attorneys’ fees arising from the same wrong are "but a single cause of action” and that "one cannot divide a single cause of action” by "dividing the damage” in this manner (Manko v City of Buffalo, 294 NY 109, 111). So too, in this case — where plaintiffs have asserted 17 causes of action based on the same legislative enactment and have requested attorneys’ fees as an item of damages integral to each of those causes of action— the pending request for attorneys’ fees could not have been divided from the otherwise resolved causes of action and implied severance was necessarily unavailable (Sontag v Sontag, supra).

Inasmuch as the November 15, 1991 order was not final and was not capable of being made final under the doctrine of implied severance, it should have been treated as a prior "non-final” order subject to review on defendants’ appeal from the final May 7, 1992 judgment pursuant to CPLR 5501 (a) (1). Further, since the order presents a question of law and CPLR 5501 (a) (1) also applies to the reviewability of prior orders in this Court, the correctness of the November 15, 1991 order is technically before us on this appeal. We conclude, however, that under the circumstances a remittal to the Appellate Division for a review of the order’s underlying merits is the better course.

The Supreme Court granted plaintiffs summary judgment on the theory that there was no rational basis for paying them less than their counterparts in Albany County are paid. This determination was based on the relative equivalence of the cost of living in the two counties, as well as the similarities in the County Court Judges’ caseloads and duties. In finding these factors dispositive, Supreme Court rejected defendants’ contention that it was rational to pay Onondaga County Court Judges less than their Albany County peers because the cost of purchasing a home is significantly greater in Albany County than in Onondaga County. The correctness of the Supreme Court’s determination depends, at least in part, on an analysis of the legal significance of the detailed facts set forth in the parties’ submissions. It also rests on an understanding of regional economic conditions and local judicial practices. The case should thus be remitted for the Appellate Division’s consideration of the pay disparity question.

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be reversed and the case remitted to the Appellate Division for further proceedings in accordance with this opinion.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.

      . Of course, this definition has no bearing on the entirely separate question of when a posijudgment order may be deemed final (see, e.g., Cohen and Karger, op. cit., §§ 29, 36, 43, 44).

      . The discussion that follows concerns only the doctrine of "implied severance.” Cases where a cause of action or counterclaim has been expressly severed are analyzed under a different set of principles.

      . To the extent that this Court’s prior decisions, including Sirlin Plumbing Co. v Maple Hill Homes (supra), Orange & Rockland Utils, v Howard Oil Co. (supra) and Ratka v St. Francis Hosp. (supra), indicate the contrary, they should not be followed.

      . In Manko v City of Buffalo (supra), the Appellate Division had dismissed the claim for attorneys’ fees, denominated a second "cause of action,” without resolving the so-called "first cause of action” for back pay. Under modem jurisdictional principles, the resulting order would be deemed nonfinal and not subject to implied severance for the very reasons set forth in the Manko opinion, i.e., that the dismissed claim and the pending claim were but a single, indivisible cause of action. Accordingly, an appeal presented in the precise posture of the Manko appeal would no longer be entertained in this Court.

      . It is noteworthy that under these circumstances, any attempt expressly to sever the pending attorneys’ fee claim from the resolved substantive claims (see, n 2, supra) would be ineffectual, since items of relief within a single cause of action cannot be expressly or impliedly severed.


author: Chief Judge Kaye.

text:
    [647 NE2d 741, 623 NYS2d 529]
    Oswego Laborers’ Local 214 Pension Fund et al., Appellants, v Marine Midland Bank, N. A., Respondent.
    Argued January 5, 1995;
    decided February 14, 1995

      POINTS OF COUNSEL

      Blitman & King, Syracuse (Donald D. Oliver and Charles E. Blitman of counsel), for appellants.

      Hancock & Estabrook, Syracuse (Janet D. Callahan of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal by two union funds from dismissal of their action against a bank focuses on the meaning of the phrase "[deceptive acts and practices” as used in General Business Law § 349. We conclude that there are questions of fact as to whether the bank’s acts constituted conduct prohibited by the statute.

According to the undisputed facts, plaintiffs Pension Fund and Welfare Fund are not-for-profit associations that administer pension benefits and health insurance for union members and their beneficiaries. Both Funds had dealt with defendant Marine Midland Bank since the 1960’s, when the Bank became their corporate trustee, and since at least 1973 the Bank had been investment advisor for the Welfare Fund.

On May 19, 1976, Robert Bradshaw, administrator of both Funds, met with Bruce Whitney, Marine’s vice-president and branch manager of the East Side Oswego office. Whitney had attended meetings of the Funds’ trustees and was known to Bradshaw. Bradshaw told Whitney that he wanted to open an interest-bearing savings account for the Pension Fund, which at the time had moneys in non-interest-bearing checking accounts at Marine.

Marine offered two types of savings accounts — one for individuals, another for commercial entities. For commercial entities, Federal Regulation Q (12 CFR 217 et seq.) capped the principal upon which interest could be paid — a maximum of $100,000 through 1979, and a maximum of $150,000 thereafter. Not-for-profit entities were exempt from this regulation. To effectuate its own compliance with Regulation Q, Marine used blue signature cards for for-profit commercial customers and green cards for nonprofit commercial entities. In opening the savings account for the Pension Fund with an initial deposit of $10,000, Whitney without explanation gave Bradshaw a blue signature card. Although the card was designated "Commercial Savings,” it did not indicate that it was for profit-oriented entities, nor did it reveal that interest would not be paid on deposits in excess of $100,000.

The signature card stated that the account was subject to the Bank Rules Governing Commercial Savings Deposits with Marine Midland Bank. These rules, which were not printed on the signature card itself, governed "every savings deposit * * * by a corporation, partnership or other association operated for profit * * * or by the United States, any State or any county, municipality or political subdivision thereof.” The Bank rules continued:

"d. Applicable to commercial Depositors only and not to governmental-unit Depositors: Under Federal regulations, the amount of Depositor’s Savings Deposit or Deposits with Bank may not exceed $100,000. Accordingly, no interest will be earned on any amount in Depositor’s Deposit account or accounts in excess of $100,000, and such excess amount shall be deemed to be a demand deposit.”

Nearly a year later, in March 1977, Bradshaw, this time acting for the Welfare Fund, opened a second savings account with Marine. Again, Whitney provided him with a blue, for-profit account, signature card. In total, four of the Funds’ trustees executed blue signature cards for the two accounts. The parties differ as to whether Bradshaw was furnished a copy of the Bank rules in connection with the opening of either account.

Roughly seven years after the accounts were opened, in January 1984, Whitney advised the Funds that Marine had not been paying interest on principal in either account exceeding the cap, which allegedly resulted in lost interest of $30,060.26. Plaintiffs commenced this action against the Bank for the lost interest, claiming in their single cause of action that the Bank’s actions were deceptive acts and practices within General Business Law § 349 (a). Defendant moved and plaintiffs cross-moved for summary judgment. Supreme Court granted defendant’s motion for summary judgment, stating in its order that the "conduct complained of does not, as a matter of law, rise to the level of a deceptive business practice within the meaning of Section 349 (a) of the General Business Law,” and the Appellate Division affirmed. We now modify the order to deny defendant’s summary judgment motion.

Section 349 (a) of the General Business Law declares as unlawful "[deceptive acts and practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state,” with no further elaboration of the prohibited conduct. As enacted in 1970, the statute entrusted sole enforcement power to the Attorney-General. A decade later, the Legislature added a private right of action for "any person who has been injured by reason of any violation of this section,” allowing injunctive relief and damages, as well as reasonable attorney’s fees (General Business Law § 349 [h]; see also, Note, New York Creates a Private Right of Action to Combat Consumer Fraud: Caveat Venditor, 48 Brook L Rev 509).

As shown by its language and background, section 349 is directed at wrongs against the consuming public. General Business Law article 22-A, of which section 349 is a part, is entitled “Consumer Protection from Deceptive Acts and Practices.” The structure of the law, with the Attorney-General initially wielding sole enforcement power in the name of the State, speaks to its public focus. Finally, the Governor’s Memorandum approving the bill (L 1970, ch 43) lauds its consumer-protective purpose:

“Consumers have the right to an honest market place where trust prevails between buyer and seller. The power to obtain injunctions against any and all deceptive and fraudulent practices will be an important new weapon in New York State’s long standing efforts to protect people from consumer frauds” (Mem of Governor Rockefeller, 1970 NY Legis Ann, at 472).

Thus, as a threshold matter, plaintiffs claiming the benefit of section 349 — whether individuals or entities such as the plaintiffs now before us — must charge conduct of the defendant that is consumer-oriented.

Consumer-oriented conduct does not require a repetition or pattern of deceptive behavior. The statute itself does not require recurring conduct. Moreover, the legislative history makes plain that this law was intended to “afford a practical means of halting consumer frauds at their incipiency without the necessity to wait for the development of persistent frauds” (see, Mem of Governor Rockefeller, 1970 NY Legis Ann, at 472-473). Plaintiff, thus, need not show that the defendant committed the complained-of acts repeatedly — either to the same plaintiff or to other consumers — but instead must demonstrate that the acts or practices have a broader impact on consumers at large. Private contract disputes, unique to the parties, for example, would not fall within the ambit of the statute (see, e.g., Genesco Entertainment v Koch, 593 F Supp 743, 752 [negotiation for rental of Shea Stadium was a " 'single shot transaction’ ”, not a typical consumer transaction and therefore not covered by section 349]).

Proof that defendant’s acts are directed to consumers, however, does not end the inquiry. A prima facie case requires as well a showing that defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof (Varela v Investors Ins. Holding Corp., 81 NY2d 958, 961; Givens, Practice Commentaries, McKinney’s Cons Laws of NY, Book 19, General Business Law § 349, at 565). Although it is not necessary under the statute that a plaintiff establish the defendant’s intent to defraud or mislead, proof of scienter permits the court to treble the damages up to $1,000 (General Business Law § 349 [h]). By the same token, while the statute does not require proof of justifiable reliance, a plaintiff seeking compensatory damages must show that the defendant engaged in a material deceptive act or practice that caused actual, although not necessarily pecuniary, harm.

In explicating the legislative objective behind section 349, we are mindful of the potential for a tidal wave of litigation against businesses that was not intended by the Legislature. That possibility is avoided — while furthering the statutory purposes — by our adoption of an objective definition of deceptive acts and practices, whether representations or omissions, limited to those likely to mislead a reasonable consumer acting reasonably under the circumstances. Such a test, which may be determined as a matter of law or fact (as individual cases require), complements the definition applied by the Federal Trade Commission to its antifraud provision (15 USC § 45) upon which the New York statute is modeled (Givens, Practice Commentaries, McKinney’s Cons Laws of NY, Book 19, General Business Law § 349, at 565; Note, op. cit., 48 Brook L Rev 509, 520).

In the case of omissions in particular — the subject of the present case — the statute surely does not require businesses to ascertain consumers’ individual needs and guarantee that each consumer has all relevant information specific to its situation. The scenario is quite different, however, where the business alone possesses material information that is relevant to the consumer and fails to provide this information.

Applying these principles to the case at hand, we first conclude that the acts of defendant fall within the "consumer-oriented” ambit of General Business Law § 349. The record indicates that defendant Bank dealt with plaintiffs’ representative as any customer entering the bank to open a savings account, furnishing the Funds with standard documents presented to customers upon the opening of accounts. The account openings were not unique to these two parties, nor were they private in nature or a " 'single shot transaction’ ” (Genesco, 593 F Supp 743, 752, supra). Thus, plaintiffs have satisfied the threshold test in that the acts they complain of are consumer-oriented in the sense that they potentially affect similarly situated consumers.

The record is, however, inconclusive as to whether a reasonable consumer in plaintiffs’ circumstances might have been misled by the Bank’s conduct. The parties differ as to whether Bradshaw was given the Bank rules or other documentation that would have informed the Funds about the limitation on interest for their accounts. It is also disputed whether the Bank rules themselves convey the information regarding the different treatment of profit and nonprofit entities. Thus, the Bank’s liability under the statute will depend, in part, on whether plaintiffs possessed or could reasonably have obtained the relevant information they now claim the Bank failed to provide.

Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendant’s motion for summary judgment and, as so modified, affirmed.

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

Order modified, etc.


author: Bellacosa, J.

text:
    [647 NE2d 746, 623 NYS2d 534]
    In the Matter of Varrington Corporation, Formerly Varrington Corporation, N.V., Appellant, v City of New York Department of Finance et al., Respondents.
    Argued January 10, 1995;
    decided February 14, 1995

      POINTS OF COUNSEL

      Curtis, Mallet-Prevost, Colt & Mosle, New York City (Michelle A. Rice and Turner P. Smith of counsel), for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Frances J. Henn and Edward F. X. Hart of counsel), for respondents.
   OPINION OF THE COURT

Bellacosa, J.

This CPLR article 78 proceeding comes to this Court from a judgment of the Appellate Division which ruled in favor of the New York City taxing authority against the petitioner taxpayer, Varrington Corporation. The judgment confirmed a determination of the City Commissioner of Finance finding that petitioner was subject to a general corporation tax deficiency for years 1984, 1985, and 1986 in the sum of $338,043, including interest. The issues are whether the Tax Commissioner’s determination imposing retroactive effect to Rules of the Commissioner of Finance Relating to the New York City General Corporation Tax § 1-5 (a) is justified and supported by substantial evidence.

During the tax years 1984 through 1986, Varrington Corporation was a Netherlands Antilles company and a limited partner in Richfield Investment Company, Ltd. (Richfield), a New York limited partnership which owned a commercial building in New York City. The investment in Richfield was Varrington’s sole business activity in New York, in which it held a 97.5% interest. For each of the tax years in question, Varrington filed general corporation tax returns and paid corporate taxes of $31,225, $31,778 and $34,962 for the tax years 1984, 1985 and 1986, respectively, calculating its liability based on the average fair market value of its investment and business capital allocated to New York City, as provided in Administrative Code of the City of New York § 11-604 (1) (E).

Varrington’s tax liability was based on a 1954 State Attorney-General opinion. It declared that a limited partner of a limited partnership doing business in New York was itself doing business in the forum for tax purposes (see, 1954 Opns Atty Gen 221). On April 19, 1988, the New York State Department of Taxation and Finance issued an advisory opinion (TSB-A-88 [10]C) concluding that the rationale of the 1954 opinion was unsound and not to be followed. The advisory opinion declared that foreign corporate limited partners should not be deemed to be doing business or employing capital in New York State for corporation tax purposes. On June 3, 1988, the Department of Finance of the City of New York, following the State’s interpretation, ruled in an individual taxpayer Finance Letter Ruling (not Varrington) that an "alien corporation[ ], whose sole contact with New York City is the holding of passive limited partnership interests in a partnership doing business in New York City, will not be subject to the General Corporation Tax” (Finance Letter Ruling 67).

In August 1988, Varrington, aware of and expressly alluding to the Finance Letter Ruling 67, applied for and received a refund of all City corporate taxes which it had paid for tax years 1984 through 1986. On July 16, 1990, however, the New York City Department of Finance reversed its field once again and adopted General Corporation Tax Rules § 1-5, which ruled in pertinent part:

"[A] corporation shall be deemed to be doing business in the City if it owns a limited partnership interest in a partnership that is doing business, employing capital, owning or leasing property, or maintaining an office in the City” (codified at 19 RCNY 11-06 [a]). The Commissioner’s explanation accompanying the promulgation of the regulation in the City Record acknowledged that ”[t]his amendment reflects a change in the Department’s position regarding the taxability of corporations that are limited partners in limited partnerships doing business in New York City” (emphasis added).

Subsequently, on July 21, 1990, the Department sought to recoup the refund it had paid to Varrington in 1988. The City issued a Notice of Determination to Varrington, which asserted a general corporate tax deficiency for the years at issue, based exclusively on section 1-5, that Varrington was doing business in the City because it was a limited partner in Richfield. The Commissioner sustained the determination, stating that the Department’s policy since 1954 was to apply the general corporation tax to foreign corporate limited partners in limited partnerships doing business in New York City. The Commissioner also stated that the 1988 Letter Ruling, relied upon by Varrington and acted on by the City in making the refund, was binding only as to those to whom the ruling was directed.

Varrington commenced this article 78 proceeding seeking to annul the Commissioner’s determination. The Appellate Division denied the petition and confirmed the Commissioner’s determination as supported by substantial evidence (201 AD2d 282, 283-284). We granted leave to appeal and now affirm.

Retroactive tax legislation may be treated as valid, unless it reaches so far into the past or so unfairly as to constitute a deprivation of property without due process (see, Matter of Lacidem Realty Corp. v Graves, 288 NY 354, rearg denied 289 NY 675; United States v Hemme, 476 US 558; United States v Darusmont, 449 US 292; Welch v Henry, 305 US 134). Varrington argues that section 1-5, adopted in 1990, can only be applied prospectively because (1) section 1-5 constituted a significant, additional change in the pertinent, promulgated tax policy of 1988, and (2) Varrington detrimentally relied on the settled policy. Varrington also argues that the Commissioner abused her discretion applying section 1-5 retroactively because Varrington was given no notice of the Department’s additional change in taxing policy.

As to Varrington’s detrimental reliance point, it posits that it relied on the City’s Letter Ruling and the State’s 1988 Technical Services Bureau advisory opinion when it amended its tax returns and filed for a refund. Varrington claims that the City made the refund in response to that reliance and it is plainly detrimental for the City to roll that refund back.

Varrington’s reliance claim is misplaced because it shifts the analytical focus of this issue to the tax refund rather than, as it should be, on the underlying taxing event which gives rise to the tax liability in the first instance. Undeniably, Varrington paid the corporate tax in 1984, 1985 and 1986, believing that the tax was legally owed. There was certainly no detrimental reliance at that point. It was only in 1988 that Varrington came to believe that it might garner a refund. The fact that it must now return the refund does not support the detrimental reliance theory. Since tax legislation is not a governmental promise, Varrington has no vested or actionable right in these circumstances to the benefit of a tax statute or regulation. Varrington, therefore, cannot claim that it was unjustifiably prejudiced by the retroactive application of the regulation in the detrimental reliance sense (compare, United States v Carlton, 512 US —, —, 114 S Ct 2018, 2023).

As to retroactivity itself, we held that retroactivity of a tax statute, for a short period, is generally permitted (Clarendon Trust v State Tax Commn., 43 NY2d 933, 934, cert denied 439 US 831; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 404; United States v Carlton, 512 US —, —, 114 S Ct 2018, 2022, supra; Helvering v Reynolds Co., 306 US 110). The question turns on a "balancing of equities” by looking to see if there are any potentially harsh effects of applying the law retroactively to the taxpayer (Clarendon Trust v State Tax Commn., supra, at 934-935). "Retroactivity” is permitted in the area of taxation because:

"Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process, and to challenge the present tax it is not enough to point out that the taxable event, the receipt of income, antedated the statute” (Welch v Henry, 305 US 134, 146-147, supra).

The Administrative Code of the City of New York § 11-603 (1) imposes a general corporation tax "[f]or the privilege of doing business, or of employing capital, or of owning or leasing property in the city in a corporate or organized capacity, or of maintaining an office in the city.” From 1954, when the Attorney-General issued the initial opinion, to 1988, foreign corporations which owned a limited partnership interest in partnerships doing business in New York were subject to tax pursuant to section 11-603. The 1988 Technical Services Bureau advisory opinion was the first statement by either the City or State to question the efficacy of the 1954 opinion. The City followed the State’s advisory opinion, issuing Finance Letter Ruling 67, in which the City concluded that a foreign limited partner would not be subject to the General Corporation Tax. Thus, New York City’s tax policy as to foreign limited partners remained firmly settled and consistent from 1954 to 1988.

Notwithstanding the clear import of these facts, Varrington argues that well before the 1988 ruling the City followed a policy of not taxing foreign limited partners. The taxpayer’s reliance on Lynn v Cohen (359 F Supp 565) is misplaced. In Lynn, the Federal District Court for the Southern District of New York held in 1973 that a nonresidential limited partner who invested in a partnership that produced movies in New York was not "doing business in New York”. Lynn fails to support Varrington’s claim for two important reasons. First, Lynn was not a tax case. The issue in Lynn was whether New York’s long-arm statute, CPLR 302 (a), provided a basis for the Federal court to exercise jurisdiction over a foreign limited partner. In addition, even though the State cited to Lynn in its 1988 Technical Services Bureau advisory opinion, there is no record support to assume that New York’s taxing authorities adopted the reasoning of Lynn and applied it to New York’s tax policy from 1973 onward. Indeed, Varrington’s own accountants stated in a letter to the City that it was their understanding that the 1988 Letter Ruling and the State’s Technical Services Bureau advisory opinion represented a significant change from prior taxing policy.

Varrington also relies on a 1980 City Finance Bulletin to support its claim that New York had a well-defined policy of not taxing foreign limited partners prior to the issuance of the 1988 Letter Ruling. The 1980 Bulletin, however, dealt with the taxation of foreign corporations that own stock in companies conducting business in New York. The Bulletin failed to mention the City’s policy of taxing foreign limited partners acting as limited partners of a partnership doing business in New York, which is the subject of this proceeding. This record is thus devoid of evidence to support Varrington’s claim that New York had a long-established policy of not taxing foreign limited partners prior to 1988. Indeed, all of the evidence points in the opposite direction that New York’s policy of taxing foreign limited partners as doing business in New York remained consistent from 1954 to 1988.

The Finance Letter Ruling 67 is the blip on the screen. This is demonstrated by Varrington’s own acts at first of filing and paying the tax in 1984, 1985 and 1986, the very years Varrington claims that the City did not tax foreign limited partners. The payment of the tax — and not under protest— establishes without question Varrington’s own clear understanding of the City’s extant and long-standing policy of applying the general corporate tax to foreign corporate limited partners.

Since there was no cognizable detrimental reliance on the temporarily altered, long-standing tax policy, and since the 1990 regulation was justifiably applied in relation to the challenged taxing event, we affirm the dismissal of the petition.

We have considered Varrington’s other arguments and conclude that they are without merit.

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

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

Judgment affirmed, with costs.


text:
    [647 NE2d 749, 623 NYS2d 537]
    Katherine Hartog, Appellant, v Albert Hartog, Respondent.
    Argued January 11, 1995;
    decided February 14, 1995

      POINTS OF COUNSEL

      Squadron Ellenoff Plesent Sheinfeld & Sorkin, New York City (Stanley Plesent, Neal M. Goldman and Stanley D. Heisler of counsel), for appellant.

      Herman Harris Tarnow, New York City, Gretchen Leitzell Johnston and Scheinkman, Fredman & Kosan, White Plains (Alan D. Scheinkman of counsel), for respondent.

      Sandra W. Jacobson, New York City, for The Women’s Bar Association of the State of New York, amicus curiae. I.
   OPINION OF THE COURT

Bellacosa, J.

This equitable distribution case, reflecting its unique characteristics of the economic partnership aspect of a 23-year marriage relationship, presents a multifaceted puzzle of issues. The solutions lie in the evidence adduced, in the statutory framework, language and policies, and in their discernment, application and harmonization in the respective levels of judicial review and authority.

I.

Plaintiff wife appeals, pursuant to leave granted by this Court, from an order of the Appellate Division, which modified a judgment of Supreme Court, New York County, dissolving the parties’ marriage and distributing property. The wife was granted a divorce on abandonment grounds. Afterwards, a trial was held to determine her maintenance and equitable distribution rights. Both parties appealed conflicting aspects to the Appellate Division. The wife now specifies numerous dissatisfactions about parts of the Appellate Division ruling.

She seeks relief from the Appellate Division determinations (1) that the appreciation in value of the husband’s separate property businesses was not marital property; (2) that his bonus, earned prior to but paid after commencement of marital proceedings, was not marital property; (3) that the trial court had no authority to order the husband to obtain life insurance for her benefit to secure maintenance payments; (4) that the trial court had no authority to impose a lien on the husband’s estate in the event of a shortfall in the ordered life insurance; (5) that maintenance of five-year duration was appropriate in the instant case instead of lifetime maintenance as directed by the trial court; and (6) that tax consequences to the husband of the equitable distribution award should have been considered.

A lead issue for us to decide is whether the husband’s limited involvement during the marriage in businesses that appreciated in value qualified as active participation to transmute the appreciation of that otherwise separate property into marital property subject to equitable distribution. We conclude, as the Supreme Court did, that the record supports the view that the husband’s involvement was sufficient to convert a proportionate share of the appreciated value of these businesses into marital property. We also agree with Supreme Court that the bonus is marital property subject to equitable distribution. Further, we hold that by not considering the predivorce standard of living, the Appellate Division erred both in its articulation and application of the proper standard to be used in determining maintenance awards.

On the other hand, while courts have statutory authority to order a spouse to maintain life insurance for the other spouse’s benefit, we agree with the Appellate Division that such relief is inappropriate in the instant case. Moreover, there is no general inherent judicial authority to interpose liens against estates as alternative financial or legal security measures. Finally, we conclude that the Appellate Division did not abuse its discretion by considering the tax consequences to the husband and by reducing the wife’s distributive award accordingly.

IL

The parties were married in November 1968. When they divorced, she was 51 and he was 61. Two children were born of the marriage, both emancipated at the time of the divorce. When they married, the wife was 28 and working for an advertising agency. She left this position shortly before the birth of their first child in 1969. With the exception of some freelance work in June 1969, she did not return to work outside the home until May 1980. From May 1980 through 1985, she worked full time at an advertising firm, earning a maximum of $27,500. In 1990, she started a song writing business, from which she earned nothing, but due to which she incurred $5,000 in expenses. During the marriage, she was a traditional homemaker, serving in roles of spouse, parent, housekeeper and hostess. The husband engaged in various business enterprises during the marriage.

When they married, the husband was 38 and worked in a family jewelry business, F. Staal, Inc. He was also a shareholder and director of another family business, Hartog Trading Corporation (Trading). He owns 50% of the stock in F. Staal and Trading, and 25% of the stock of Hartog Foods International, Inc. (Foods), a spin-off company of Trading. He worked long hours at F. Staal six days per week until 1985 and five days a week thereafter. He was director of Trading throughout the marriage and was its secretary/treasurer from 1969. He was a director and secretary of Foods from the time of its incorporation in 1969. However, his brother or others had primary responsibility for the day-to-day management and operation of Trading and Foods.

F. Staal, Trading and Foods each deducted a salary for the husband as a business expense, and he participated in their respective profit-sharing plans. The corporate tax returns of Trading and Foods list him as a part-time employee, and the corporate minutes note his presence at meetings and his power to sign checks. Testimony at trial indicated that the husband and his brother conferred at times regarding business matters concerning Trading and Foods, the two entities at issue in this case.

On the respective personal health side of their lives, the wife was diagnosed with breast cancer in 1985. She underwent mastectomies in 1985 and 1986, and her health appears stabilized as of the time of the litigation. The husband was more recently diagnosed with prostate cancer.

III

Supreme Court granted the wife a divorce and distributed the marital property. The court outlined various options for the wife, dependent on whether she chose to sell or retain two marital residential properties. Each option also set forth the distributive award to which the wife would be entitled. She ultimately opted to sell both residences, resulting in a distributive award of $1,692,237.09. This aspect is not in dispute on this appeal.

With respect to the rest of the distributive award, the trial court found the following to be marital property: (1) 100% of the increased value of husband’s 50% share in F. Staal ($412,500); (2) 25% of the appreciation of husband’s 50% share of Trading ($575,000); and (3) 25% of the appreciation of husband’s 25% share of Foods ($686,875). The court also declared the husband’s annual bonus to be marital property.

As for maintenance, the court awarded the wife spousal support in the amount of $2,816.66 per month until her death. The court also ordered the husband to maintain a $1 million life insurance policy for his wife’s benefit and provided that in the event the policy was not in effect on his death, the amount of the insurance would constitute a pro rata lien against his estate.

The Appellate Division modified, on the law and on the facts and in the exercise of discretion, to provide: (1) the distributive award to the wife be reduced by (i) the share awarded the wife in the appreciated value of Trading and Foods ($630,937.50, representing one half of 25% of the increased value of the husband’s interest in Trading and Foods [she would thus receive nothing in this category]), (ii) the share awarded the wife in the husband’s bonus ($59,998, representing one half of the total bonus paid), and (iii) a portion of the tax liability attributed to the husband resulting from the sale of marital assets; (2) that the distributive award include an additional $197,585, representing one half of the husband’s Thomas McKinnon brokerage account (not in issue here); (3) that the award of spousal maintenance in the amount of $650 per week be limited to five years from the date of judgment, retroactive to July 13, 1992; and (4) that the provisions directing the husband to maintain a $1 million life insurance policy for the wife’s benefit and establishing a conditional $1 million lien on the husband’s estate should he fail to maintain the policy be deleted. As so modified, the judgment was affirmed.

IV.

The wife asserts that because the husband had some active involvement in Trading and in Foods, then the appreciation in value of those businesses, at least in some degree, is marital property subject to equitable distribution. She argues that the Appellate Division imposed a substantial nexus condition requiring a significant connection between the titled spouse’s activity and the appreciation of the operating business assets. The wife argues that this (1) is contrary to legislative intent, which meant for the term "marital property” to be broadly construed, and (2) is contrary to this Court’s holding and rationale in Price v Price (69 NY2d 8), that a titled spouse’s "active” contribution to the separate asset during the marriage transforms at least some portion of the appreciated value into marital property.

The husband counters, claiming that his activities amounted to "paper participation” only, and that this type of pro forma involvement had no actual impact on the appreciation in the value of the businesses. The husband asserts that absent some concrete showing by the wife of how his meager involvement actually benefitted the businesses’ value, the appreciation in those businesses remains separate property in its entirety. In effect, the husband urges that absent a showing by the wife of a definitive and direct nexus between the husband’s activities and the appreciation at issue, the entire amount of the appreciation should be viewed as having been "passively” accumulated and, hence, separate property beyond the reach of the courts’ equitable distribution power (see, Domestic Relations Law § 236 [B] [1] [c], [d]; [5] [b], [c], [d]; Price v Price, 69 NY2d 8, supra).

We conclude that requiring a nontitled spouse to produce a substantial, almost quantifiable, connection between the titled spouse’s efforts and the appreciated value of the asset would be (1) contrary to the letter and spirit of the relevant statutes (see, Domestic Relations Law § 236 [B] [1] [c], [d] [3]; [5] [c], [d] [6]); (2) inconsistent with legislative intent (Governor’s Mem approving L 1980, ch 281, reprinted in 1980 McKinney’s Session Laws of NY, at 1863; Sponsor’s Mem L 1980, ch 281, 1980 NY Legis Ann, at 129-130); and (3) at odds with the purport of this Court’s precedents construing the Legislature’s directives (Price v Price, 69 NY2d 8, supra). Thus, we agree with the wife’s argument and the Supreme Court’s resolution of this issue (see, id., at 16-18; Zelnik v Zelnik, 169 AD2d 317, 330; but see, Feldman v Feldman, 194 AD2d 207; Elmaleh v Elmaleh, 184 AD2d 544).

When a nontitled spouse’s claim to appreciation in the other spouse’s separate property is predicated solely on the nontitled spouse’s indirect contributions, some nexus between the titled spouse’s active efforts and the appreciation in the separate asset is required (see, Price v Price, 69 NY2d 8, 17-18, supra; contra, Robinson v Robinson, 166 AD2d 428, 430, lv denied 77 NY2d 807). Applying Price’s nuanced principles to this case, we hold that the weight of the adduced evidence favors the fact-finding trial court’s conclusion that the titled spouse actively participated to some degree regarding the separate nonpassive asset and that the appreciation in the asset is, to that proportionate extent, marital property.

Domestic Relations Law § 236 (B) (1) (d) (3) expressly provides that appreciation in separate property remains separate property, "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (emphasis added). Moreover, Domestic Relations Law § 236 (B) (5) (d) (6) explicitly recognizes that indirect contributions of the nontitled spouse (e.g., services as spouse, parent and homemaker, and contributions to the other party’s career or career potential) are relevant in the equitable disposition calculations just as direct contributions are. Thus, to the extent that the appreciated value of separate property is at all "aided or facilitated” by the nontitled spouse’s direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution (Price v Price, 69 NY2d 8, 18, supra; see, Domestic Relations Law § 236 [B] [1] [c]; [5] [c], [d]). Consequently, while some connection between the titled spouse’s effort and the appreciation must be discernible from the evidence, neither the statutory language nor its legislative history justifies the Appellate Division’s and the husband’s exacting causation prerequisite.

Legislative history of the watershed Equitable Distribution Law (L 1980, ch 281) demonstrates the bill’s salutary purpose —namely, to treat marriage in one respect as an economic partnership and, in so doing, to recognize the direct and indirect contributions of each spouse, including homemakers (Governor’s Mem approving L 1980, ch 281, reprinted in 1980 McKinney’s Session Laws of NY, at 1863; Assembly Mem, 1980 NY Legis Ann, at 129-130; see also, O’Brien v O’Brien, 66 NY2d 576, 584-585). Adopting the Appellate Division’s view on this issue in this case would undermine this enlightened progress.

We must realistically come to grips with the fact that when the titled spouse has only limited, yet active, involvement concerning a separate asset of nonpassive character, it may be difficult, if not impossible, to link limited, specific efforts to quantifiable, tangible results. The valuation of an asset, such as an ongoing business, may vary due to a combination of and interaction among numerous active and passive forces — activities of workers, decisions of management and operational personnel, advice and activities of consultants, inflation and market forces, among others. Given these complex variables and especially when a party’s active involvement in a business is limited, it would be insuperably difficult to prove a direct causal link between the activity and the resulting appreciation.

The causation requirement urged by the husband would, therefore, result in an all-or-nothing contest, as the Appellate Division ruled, and would defeat a central calibrating feature of Price and the Domestic Relations Law. That absolutist approach would often procedurally exempt appreciation from being considered marital property even when the titled spouse’s active efforts substantively contributed to the appreciation to some degree. This would allow the titled spouse a windfall retention and, contrary to legislative intent, would nullify the indirect effort the nontitled spouse contributed to the circumstances, allowing for appreciation to that asset (see, Price v Price, 69 NY2d 8, 14-15, supra; Majauskas v Majauskas, 61 NY2d 481, 489, 490). We thus reject this approach and instead give effect to the Legislature’s intent that a nontitled spouse be permitted to share in the "indirect” fruits of his or her labor, even if the connection between the titled spouse’s activity and the appreciation is not established with mathematical, causative or analytical precision (see, Domestic Relations Law § 236 [B] [5] [d] [6]).

Moreover, our precedents support the analysis and result we adopt today in this respect in this case (see, Price v Price, 69 NY2d 8, supra). In Price v Price, this Court set forth the "active/passive” test, which established the guidelines for determining whether the appreciation in a titled spouse’s separate property has been transmuted into marital property based on the indirect contributions of the nontitled spouse (69 NY2d 8, supra; Domestic Relations Law § 236 [B] [1] [d] [3]; [5] [d] [6]). Explicitly noting the Legislature’s intent to have the term marital property broadly construed (Price v Price, supra, at 15), and emphasizing the economic partnership theory of marriage (id., at 14, 16), we held that the dispositive inquiry of ”[w]hether [indirect] assistance of a nontitled spouse * * * can be said to have contributed 'in part’ to the appreciation of an asset depends primarily upon the nature of the asset and whether its appreciation was due in some measure to the time and efforts of the titled spouse” (id., at 17-18 [emphasis added]). Thus, in Price, we required that both the nature of the asset and the efforts of the titled spouse be considered in the inquiry (id.). Price is silent, however, as to quantifying the threshold "causal link” necessary to trigger the classification of the appreciation of separate property, in whole or in part, as marital property.

While we articulated the need for some connection and left the calibration of that standard for another day, the inevitable implication of Price was rejection of the "all or nothing” approach that would be interposed by adopting a particularized causative nexus requirement. We were careful to note that the totality of the appreciation retained its separate property character only where the appreciation was "not due, in any part, to the efforts of the titled spouse,” but, rather, was due in its entirety "to the efforts of others or to unrelated factors” (id., at 18 [emphasis added]). That is not this case.

Elaborating on these principles and remaining true to statutory language and intent, we conclude that where an asset, like an ongoing business, is, by its very nature, nonpassive and sufficient facts exist from which the fact finder may conclude that the titled spouse engaged in active efforts with respect to that asset, even to a small degree, then the appreciation in that asset is, to a proportionate degree, marital property. By considering the extent and significance of the titled spouse’s efforts in relation to the active efforts of others and any additional passive or active factors, the fact finder must then determine what percentage of the total appreciation constitutes marital property subject to equitable distribution (see, Domestic Relations Law § 236 [B] [1] [c]; [5] [d] [6]; Price v Price, 69 NY2d 8, 17-18, supra). Supreme Court correctly did that here.

Applying these principles to the case at bar, we conclude that the Appellate Division mistakenly undid what Supreme Court wrought. The Appellate Division should not have deemed the total amount of the appreciation in Trading and Foods to be the husband’s separate property. The trial court’s findings, as accepted by the Appellate Division, demonstrate that the husband engaged in limited, active involvement in the two companies. The husband’s activities consisted of (1) attendance at Board meetings; (2) holding officers’ positions within the close corporations; (3) being listed as a salaried employee; (4) discussing and conferring on business matters; (5) signing checks on occasion; and (6) participating in the companies’ profit-sharing plans. While infrequent and perhaps not central to the businesses’ day-to-day operations, these efforts did constitute an "active” involvement and management role. Through the husband’s attendance at Board meetings and business discussions with family members, particularly during times of crisis, a reasonable finder of fact could determine that this active involvement contributed to the appreciated value of the businesses. Thus, the Supreme Court’s findings are supportable, and the Appellate Division’s pinched application of the Price test is not.

Accordingly, we reinstate the Supreme Court’s determination that 25% of the appreciated value of the husband’s interests in Trading and in Foods is marital property.

V.

The husband’s bonus, earned during the course of the marriage but paid after commencement of marital dissolution proceedings, is marital property subject to equitable distribution (see, Majauskas v Majauskas, 61 NY2d 481, 485-486, supra; Cappiello v Cappiello, 110 AD2d 608, 609, affd 66 NY2d 107). The Appellate Division rationale and conclusion fail to heed our precedents and the generous reading which the Legislature intended to be accorded the term marital property in this respect (see, Majauskas v Majauskas, supra; Cappiello v Cappiello, supra; see also, Governor’s Mem approving L 1980, ch 281, reprinted in 1980 McKinney’s Session Laws of NY, at 1863; Sponsor’s Mem, 1980 NY Legis Ann, at 129-130; Price v Price, 69 NY2d 8, 16, supra).

VL

Under Domestic Relations Law § 236 (B) (8) (a), the courts have the general authority to "order a party to purchase, maintain or assign a policy of insurance on the life of either spouse.” The plain language of the statute expressly provides that life insurance may be used as a means to secure maintenance and child support payments, so that dependent spouses and children will be adequately protected. Thus, notwithstanding the proviso that the beneficiary’s interest "shall cease upon the termination of [the payor spouse’s] obligation to provide maintenance” (Domestic Relations Law § 236 [B] [8] [а] ), and despite the fact that responsibility for maintenance payments ceases upon the payor spouse’s death (Domestic Relations Law § 236 [B] [6] [c]), the statute authorizes discretionary security-type financial protection in the form of life insurance. Domestic Relations Law § 236 (B) (8) (a) does not impermissibly conflict with Domestic Relations Law § 236 (B) (б) (c) (see, Burns v Burns, 84 NY2d 369, modfg on other grounds 193 AD2d 1104, 1105).

The Appellate Division came to a correct result based on the particular facts and circumstances of this case, although it misstated the general rule and the power of the court. In the instant case, the trial court erred by ordering the husband to obtain a life insurance policy. Due to his serious illness, the husband is uncontestedly uninsurable, and the proof at trial establishes the lack of any extant life insurance available when the relief was directed in the judgment. Consequently, the Appellate Division correctly found an abuse of discretion in the trial court’s ordering the husband to maintain the $1 million policy.

The Appellate Division also correctly held that the courts have no inherent authority to order a lien on a spouse’s estate in lieu of insurance. There is no statutory authority or suggestion in the legislative history that the courts were meant to exercise such broad-reaching power to create a lien on an estate for a payor spouse’s failure to maintain life insurance (see, Domestic Relations Law § 236 [B] [8] [a]; Bill Jacket, L 1980, ch 281; see also, Pajak v Pajak, 56 NY2d 394).

VII.

Consideration of the predivorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award to be accorded a spouse (see, Domestic Relations Law § 236 ¡B] [6] [a]; Sponsor’s Mem, L 1986, ch 884, 1986 NY Legis Ann, at 356-357). The Appellate Division erred in failing to consider the wife’s predivorce standard of living in determining the propriety of the maintenance award ordered by the trial court (see, Domestic Relations Law § 236 [B] [6] [a]; Sponsor’s Mem, L 1986, ch 884, op. cit.).

Domestic Relations Law § 236, as amended in 1986 (ch 884), directs that when the court is considering an award of maintenance, it must "hav[e] regard for the standard of living of the parties established during the marriage” (Domestic Relations Law § 236 [B] [6] [a]). The 1986 amendment altered the prior law by removing the predivorce standard of living from a lengthy list of enumerated factors and according it separate priority within the primary structure of section 236 (B) (6) (a) (compare, L 1980, ch 281, with L 1986, ch 884). Legislative history makes clear that the purpose of the amendment was to ”require[ ] the court to consider the marital standard of living” in making maintenance awards (Sponsor’s Mem, L 1986, ch 884, 1986 NY Legis Ann, at 356, 357 [emphasis added]).

To be sure, generally the lower courts’ failure to analyze each of the statutory maintenance factors (Domestic Relations Law § 236 [B] [6] [a] [1]-[11]) will not alone warrant appellate alteration of the award (see, Cappiello v Cappiello, 66 NY2d 107, 110, supra). With respect to these enumerated factors, we have held that it suffices for a court to set forth the factors it did consider and the reasons for its decision (id.). The "factor” at issue in this case — the predivorce standard of living — has been placed by the Legislature in a markedly distinct category, rendering the general rubric inapplicable.

When the Legislature has acted to achieve a particular objective and has given a clear indication of its intent, we are bound to give effect to that purpose. On the issue of the predivorce standard of living, both the history and plain wording of the statute unequivocally demonstrate the Legislature’s intention that the predivorce standard of living be a mandatory factor for the court’s consideration in determining the amount and the duration of maintenance awards (see, Domestic Relations Law § 236 [B] [6] [a]; Sponsor’s Mem, L 1986, ch 884, op. cit.).

Additionally, the Appellate Division’s assertion of the wife’s ability to become self-supporting with respect to some standard of living (194 AD2d 286, 295) in no way (1) obviates the need for the court to consider the predivorce standard of living; and (2) certainly does not create a per se bar to lifetime maintenance. Correspondingly, a predivorce "high life” standard of living guarantees no per se entitlement to an award of lifetime maintenance. The lower courts must consider the payee spouse’s reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in their discretion, fashion a fair and equitable maintenance award accordingly (see, Domestic Relations Law § 236 [B] [6] [a] [1]-[11]). That is precisely what Supreme Court did, and the Appellate Division’s significant alteration of that award for the reason it advanced is not warranted. We therefore modify in this respect as well and reinstate the trial court’s determination awarding lifetime maintenance in the amount of $2,816 per month.

VIII.

Finally, we are satisfied that the Appellate Division acted properly in considering the tax consequences to the husband and reducing plaintiff wife’s distributive award by her equitable share of the tax liability (see, Majauskas v Majauskas, 61 NY2d 481, 493-494, supra). Given the nonliquid nature of the assets, the Appellate Division did not abuse its discretion in making the wife responsible for an equitable share of the tax consequences (see, id.; Domestic Relations Law § 236 [B] [5] [d] [10]; see also, De La Torre v De La Torre, 183 AD2d 744; Teitler v Teitler, 156 AD2d 314, appeal dismissed 75 NY2d 963).

Accordingly, the order of the Appellate Division should be modified, without costs, and the judgment of Supreme Court should be reinstated to the extent indicated in accordance with this opinion and, as so modified, the order of the Appellate Division should be affirmed.

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

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.


text:
    [647 NE2d 758, 623 NYS2d 546]
    The People of the State of New York, Respondent, v David S. Finnegan, Appellant.
    Argued January 12, 1995;
    decided February 16, 1995

      POINTS OF COUNSEL

      Kunstler & Kuby, New York City (William M. Kunstler of counsel), for appellant.

      R. Michael Tontillo, District Attorney of Ontario County, Canandaigua (John G. Herriman of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Prior to his jury trial in the Town Court of Victor, defendant moved to suppress the otherwise valid results of a consensual breathalyzer test, claiming that his statutory right to an additional, independent test was violated. Defendant had been arrested for driving while intoxicated. After being transported to the police station, he consented to a breathalyzer test being administered and requested an additional blood test upon being advised of his statutory right.

The issue on this appeal is whether Vehicle and Traffic Law § 1194 (4) (b), which promulgates the defendant’s right to an independent chemical test, also imposes an affirmative duty on the police to assist an arrested individual in obtaining an independent chemical test. We conclude that defendant’s statutory right to the opportunity to obtain an independent test was not violated. Thus, we affirm the County Court order upholding defendant’s conviction in the Town Court.

At approximately 2:30 a.m. on July 4, 1991, an Ontario County Deputy Sheriff, responding to a call of criminal mischief, observed a vehicle on Willis Hill Road in the Town of Victor. The officer testified that the car’s headlights were not on and its right-hand tires "were just off the curb onto the stone.” When the officer stopped to check out the situation, he noticed defendant walking toward the vehicle. Defendant told the officer that he had driven the car and parked it at that spot in order "to put something in his friend’s mailbox.” When the officer placed his hand near the radiator of defendant’s parked car, that part of the car felt "hot.” The officer concluded that the car had recently been driven. Defendant was questioned and admitted to drinking a beer and driving the car.

Because the officer smelled alcohol on defendant’s breath and noticed that his eyes were bloodshot, the officer asked defendant to perform a series of field sobriety exercises. Defendant failed four basic skills. After making further observations of defendant’s demeanor and appearance, the officer concluded that defendant was intoxicated and placed him under arrest for driving while intoxicated. Defendant was handcuffed and taken in a police vehicle to the police station. After being read his Miranda rights, defendant next agreed to provide a breathalyzer sample. Before administering that test, the officer informed defendant of his right also to "have an independent blood test at his own expense.” The official breathalyzer test was performed by a certified operator and reflected a .15% alcohol level in defendant’s blood. The test was conducted at 3:42 a.m., within the two-hour time period required by statute (see, Vehicle and Traffic Law § 1194 [2] [a] [1]; People v McGrath, 135 AD2d 60, 61, 63, affd 73 NY2d 826). Because defendant repeatedly stated to the police that he intended to leave the jurisdiction, he was immediately arraigned and bail was set at $500 cash or $1,000 bond. Defendant was unable to post bond until the afternoon of July 4.

Two weeks prior to trial, defendant submitted an affidavit to the Town of Victor Court in which he stated that: "After I submitted to the breathalyzer test I requested that the police permit me to obtain an independent blood test from a physician of my choosing. * * * The police did not assist me in arranging for an independent blood test, and I was unable to obtain such a test within a reasonable and relevant period of time.” The trial court denied defendant’s request for a pretrial hearing with respect to his motion to suppress the consensual, official breathalyzer test results. Defendant was tried and convicted by a jury of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [2]). Ontario County Court, as the intermediate appellate court, affirmed the conviction and held that the police had no affirmative duty to arrange for or implement defendant’s request for an independent chemical test or to transport the defendant to a person or place where an independent test could be performed. A Judge of this Court granted leave to appeal.

Defendant claims that the otherwise unchallenged official breathalyzer test results should have been suppressed because he was denied his statutory right to secure an independent blood test. Specifically, defendant asserts that the police have affirmative duties, which are concomitant with defendant’s statutory right to seek an independent test (see, Vehicle and Traffic Law § 1194 [4] [b]). He would add an official obligation to assist defendant in obtaining an independent blood test. He charges that the enlarged duty was breached in this case (citing People v Batista, 128 Misc 2d 1054). We note that there appears to be no dispute that defendant was advised of the statutory right and, thus, find it unnecessary to decide whether the advisory prong should be added by judicial interpretative mandate. We proceed also on the assumption (though there is some factual, evidentiary dispute) that defendant asked generally to secure the independent test and for police assistance.

The whole of Vehicle and Traffic Law § 1194 (4) (b) is: "Right to additional test. The person tested shall be permitted to choose a physician to administer a chemical test in addition to the one administered at the direction of the police officer.” Defendant asks that the Court interpretatively add to these words requirements for the police to assist defendant in obtaining an independent test, if one is requested. Defendant specifies at least three additional obligations not expressly prescribed in the statute: (1) the police must give notice of the right to the independent test; (2) the police must transport defendant to the doctor or hospital where the additional test would be performed or presumably arrange for an independent physician or technician to make a precinct call; and (3) the police must obtain the independent test within two hours of defendant’s arrest. Failure to comply with these interpretive add-ons, defendant argues further, should result in suppression of the unchallenged, consensual, valid and untainted breathalyzer test results.

The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory "language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words” used (People ex rel. Harris v Sullivan, 74 NY2d 305, 309, citing Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). Equally settled is the principle that courts are not to legislate under the guise of interpretation (see, People v Heine, 9 NY2d 925, 929; see also, Bright Homes v Wright, 8 NY2d 157, 162).

The simple, straightforward declaration of Vehicle and Traffic Law § 1194 (4) (b) is that defendants are entitled to their own additional chemical test. The statute is starkly silent as to any implementary duties imposed on the law enforcement personnel as to notice or to direct assistance in obtaining an independent chemical test.

We have firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended (People v Tychanski, 78 NY2d 909, 911; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665-666; see also, Pajak v Pajak, 56 NY2d 394, 397; McKinney’s Cons Laws of NY, Book 1, Statutes § 74). Indeed, the omission of the substantive elements defendant would have us add to this fully integrated and comprehensive driving while intoxicated protocol compellingly suggests that the Legislature intended no such additional obligations. The statutory right is the defendant’s and so is the responsibility to take advantage of it.

We hold, therefore, that law enforcement personnel are not required to arrange for an independent test or to transport defendant to a place or person where the test may be performed (see, People v Miller, 199 AD2d 692, 694-695, lv denied 82 NY2d 928; People v Cegelski, 142 Misc 2d 1023, 1024-1025, lv denied 74 NY2d 846; People v Sauve, 129 Misc 2d 666, 668). Of course, the police should not impede arrested individuals from exerting or accomplishing their statutory prerogative. The authorities should even assist persons in custody with appropriate advice and communication means, e.g., a telephone call opportunity. On the other hand, we have settled the general question that the police have no affirmative duty to gather or help gather evidence for an accused (see, People v Alvarez, 70 NY2d 375).

Moreover, we disagree with defendant’s assertion that assistance for the independent test must be speedily undertaken so that it, too, is administered within two hours of the arrest. Vehicle and Traffic Law § 1194 (2) (a) (1), which mandates that the breathalyzer test be performed within a two-hour time period following arrest, applies only to the official test. That prerequisite is not referenced to the accused’s independent test option nor is it controlling with respect to the private, personal test (see, People v McGrath, 135 AD2d 60, affd 73 NY2d 826, supra). Nothing in the unambiguous language of Vehicle and Traffic Law § 1194 (4) (b) indicates that the Legislature intended to cross-reference or incorporate the official test time limitation into obtaining the independent test.

This is a case involving a purely statutory right and statutory construction only. We conclude that under the circumstances presented here, there was no violation and the request for and right to the independent chemical test have no bearing on the reliability of the official breathalyzer test evidence, consensually acquired for eventual trial. Indeed, Vehicle and Traffic Law § 1195, which deals with the admissibility of chemical test results, provides only that such results shall be admissible in evidence if the test was administered in accordance with Vehicle and Traffic Law § 1194 (see, Vehicle and Traffic Law § 1195). The official test complied with the statutory prescriptions in all respects, and the defendant’s right to an independent one was not transgressed. Defendant’s other contentions lack merit and require no further explication.

Accordingly, the order of the County Court should be affirmed.

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

Order affirmed.