author: Levine, J.

text:
    [651 NE2d 1249, 628 NYS2d 230]
    In the Matter of John Scoglio, Respondent, v County of Suffolk, Appellant.
    Argued May 3, 1995;
    decided June 7, 1995

      POINTS OF COUNSEL

      Robert J. Cimino, County Attorney of Suffolk County, Hauppauge (Thomas M. Merritt of counsel), for appellant.

      Leland Stuart Beck, Garden City, for respondent.
   OPINION OF THE COURT

Levine, J.

Petitioner is the owner of a parcel of real property in West Babylon which, until 1980, abutted in its entirety County Road 96 in Suffolk County. At that time, the respondent County, through condemnation proceedings, acquired certain lands along County Road 96 for the purpose of rerouting the road. The rerouting project resulted in a parcel of real property, the subject of this proceeding, situated between petitioner’s property and the new roadway, which parcel had constituted the former roadbed and had been acquired from owners other than petitioner. As a consequence of the rerouting, petitioner was deprived of over half of his former frontage on the highway, although he retained approximately 200 feet of continuous frontage on the new County Road 96. Upon completion of the project, the subject parcel was declared to be surplus property, and in July 1987 petitioner began to lease the parcel from the County. However, the County subsequently proceeded to have the parcel appraised and scheduled a public auction to sell it.

Petitioner commenced this CPLR article 78 proceeding seeking an order prohibiting respondent from offering the parcel for sale or public auction to any other person, firm or corporation and requiring respondent to convey the parcel to petitioner. Supreme Court dismissed the petition in its entirety, but the Appellate Division modified, relying on Highway Law § 125, by granting so much of the petition as sought to prohibit respondent from offering the parcel for sale or auction to anyone other than petitioner (204 AD2d 555). This Court granted respondent leave to appeal, and we now affirm.

The Appellate Division properly construed Highway Law § 125 as requiring that if respondent elects to sell the subject surplus parcel at all, it must sell it to petitioner, an abutting landowner within the contemplation of the statute (see, Griefer v County of Sullivan, 246 App Div 385, affd 273 NY 515). Highway Law § 125 provides in pertinent part:

"The governing body may, where it has acquired land by purchase or condemnation as a right-of-way for a county road, sell, convey, grant or lease to the owner or owners of property adjoining the same, so much thereof as may be unnecessary for such highway purposes * * * provided such sale, conveyance, grant or lease will give said adjoining owner or owners of land a frontage immediately in front of their respective premises upon the new highway and right-of-way when completed.”

The evident intent of the statute is to protect the abutting landowner and prevent the abridgement or extinguishment of the rights traditionally attaching to lands adjoining a highway (see, Griefer v County of Sullivan, supra, at 386-387). An owner of land adjoining a highway or street possesses, as an incident to such ownership, easements of light, air and access, from and over the highway in its entirety to every part of his or her land, regardless of whether the owner owns the fee of the highway or street itself (id., at 386; Donahue v Keystone Gas Co., 181 NY 313, 318-319; Kane v New York El. R. R. Co., 125 NY 164, 180). When respondent acquired the parcel in question solely for highway purposes, it became part of the right-of-way of the new highway, and thus remained burdened with the usual rights, including access, of the abutting owner (Regan v Lanze, 40 NY2d 475, 483; Griefer v County of Sullivan, supra, at 386-387). By requiring that, when the new highway is completed, any surplus properties may only be conveyed to an abutting owner who will thereby gain frontage on the new highway, Highway Law § 125 serves to preserve these preexisting, appurtenant rights.

The Appellate Division further correctly recognized, however, that section 125 is permissive as to whether the property is to be sold by the County in the first instance (Griefer v County of Sullivan, supra, at 387; see also, Friedman v County Executive of County of Nassau, 58 AD2d 591). The statute provides only that the County "may” lease or convey surplus property deemed unnecessary for highway purposes in the manner provided, and cannot be read to require the County to do so. Therefore, the Appellate Division properly affirmed the denial of petitioner’s prayer to compel the County to convey the parcel to him on this basis.

Respondent’s contention that section 125 should be construed as granting only a right of first refusal to petitioner to purchase the surplus parcel is untenable. It is highly significant that the Legislature saw fit to amend the statute in 1937 to include such a right of first refusal for adjoining landowners only as to certain surplus lands in Wayne County (L 1937, ch 529). The legislative history of that amendment reveals that the legislation was deemed necessary because "the adjacent property owners [did] not care to exercise their rights to buy” (Letter from Wayne County Highway Superintendent, Bill Jacket, L 1937, ch 529, at 3). This provision of a right of first refusal confined to certain specific lands referred to in the statute strongly suggests that the Legislature had not intended only to confer such a restricted remedy on abutting landowners under section 125 as a general rule.

No more persuasive is respondent’s argument that petitioner falls outside the purview of Highway Law § 125 because he has not established compensable consequential damages as a result of the relocation of County Road 96. After setting forth the general authority of the County to lease or convey surplus property to abutting landowners in the language quoted above, Highway Law § 125 further provides that "[t]he governing body may make such sale, conveyance, grant or lease to such owner or owners of real property for the purpose of compensating such owner or owners for damages sustained by reason of the change of the location of such highway and in full settlement thereof” (emphasis supplied). This provision unambiguously refers to abutting landowners who are eligible for compensatory damages as a result of the highway relocation and permits the County to avoid payment thereof by a lease or conveyance of surplus properties. A construction of section 125 as limiting the rights thereunder to only this narrow class of landowners who have suffered compensable damages would render the preceding general provision surplusage, violating a settled tenet of statutory construction that effect and meaning must be given, if possible, to every part and word of a statute (Sanders v Winship, 57 NY2d 391, 396; McKinney’s Cons Laws of NY, Book 1, Statutes § 98).

Finally, respondent’s reliance on Bopp v State of New York (19 NY2d 368) and Selig v State of New York (10 NY2d 34) in support of this contention is misplaced. Although those cases hold that consequential damages resulting from a mere interference with access of an abutting owner by reason of a highway relocation are damnum absque injuria and noncompensable where other suitable access is available to the landowner, neither addressed the sale of surplus property under Highway Law § 125.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    [651 NE2d 1251, 628 NYS2d 232]
    In the Matter of the Estate of Ilse Herz, Deceased. York Winter, Appellant, v American Parkinsons Disease Association, Inc., et al., Respondents.
    Argued April 25, 1995;
    decided June 7, 1995

      POINTS OF COUNSEL

      Walter, Conston, Alexander & Green, P. C., New York City (Stephen S. Hart of counsel), for appellant.

      Perlman & Perlman, New York City (Clifford Perlman of counsel), and Zimet, Haines & Friedman, New York City (Nina Krauthamer of counsel), for American Parkinsons Disease Association, Inc., and another, respondents.
   OPINION OF THE COURT

Simons, J.

Petitioner York Winter is the grandnephew of Ilse Herz and a coexecutor and beneficiary of her will. At the time of the testatrix’s death, he was domiciled in the Federal Republic of Germany. The issue in this proceeding is whether the German Erbschaftsteuer, a tax imposed by the German government on his inheritance, should be paid by Winter or testatrix’s general estate to the ultimate detriment of the residual beneficiaries. We construe the will as evidencing testatrix’s intent to have the tax paid from the general estate as a cost of administration, and therefore reverse the order of the Appellate Division.

Ilse Herz executed her last will and testament on November 20, 1988. By paragraph sixth, she devised all of her personal and household effects to petitioner, leaving to others whatever he did not want. Paragraph seventh provided that petitioner should determine where her personal effects should be delivered and directed that all shipping expenses were to be paid as a cost of the administration of her estate.

In paragraph eleventh of the will, testatrix set forth the following bequest to petitioner:

"I give and bequeath the sum of two hundred fifty thousand ($250,000.00) Dollars to my sister’s grandson, york winter, Brucker Weg 3, 8520 Erlangen, West-Germany, on the condition that he keeps these funds for himself and does not give them to his parents or sisters or brother and keeps them outside of Germany [emphasis in original].
"It is my request that york winter take one hundred fifty thousand ($150,000.00) Dollars of the above mentioned bequest to him directly for his own personal use and fifty thousand ($50,000.00) Dollars should be used for storage of the furniture, for the cleaning and polishing of same, and the remaining fifty thousand ($50,000.00) Dollars should be used for the upkeep of the graves of my parents and sister, the arrangement of which york winter is familiar with. If there are any remaining funds from this bequest, then they are to go directly to york winter.”

In addition to these gifts to petitioner, testatrix made specific bequests, none larger than $50,000, to a church and various in-laws and friends. She bequeathed the remainder of her estate to respondents American Parkinsons Disease Association, Inc., Visiting Nurse Service of New York, and the Arthritis Foundation, "as a memorial to [her] beloved husband.”

In paragraph thirteenth testatrix directed:

"All estate, inheritance, and other death taxes, payable by reason of my death, shall be paid out of my estate as an expense of administration without apportionment or proration. This clause covers all testamentary and non-testamentary property whether passing before, on or after my death.”

Testatrix died in August of 1990. At the time, petitioner was a resident of Germany and his legacy was subject by German law to an Erbschaftsteuer — literally translated as an "inheritance tax” — in the amount of $115,372. He asserted a claim against the decedent’s estate for payment of the Erbschaftsteuer. When the residuary beneficiaries objected, petitioner instituted this proceeding, as a beneficiary, seeking judicial construction of paragraph thirteenth of the will and demanding that the estate pay the German tax.

The Surrogate determined that the Erbschaftsteuer was imposed on petitioner’s legacy solely because he was domiciled in a foreign country, and that absent an express statement in the will relieving beneficiaries from paying that foreign tax, petitioner should pay it. Finding nothing in the will unambiguously stating that petitioner should take his legacy free of the foreign tax, the Surrogate concluded testatrix did not intend that the Erbschaftsteuer be paid from the general estate. A divided Appellate Division affirmed, and the matter is before us as of right (see, CPLR 5601 [a]).

Petitioner contends that the Erbschaftsteuer is an inheritance tax within the terms of paragraph thirteenth of the will and that it should be a cost of the administration of the estate. He contends further that even if the paragraph is ambiguous with respect to foreign taxes, the will, when read as a whole, clearly reveals testatrix’s intent that the Erbschaftsteuer should not be paid from his legacy. Respondents rely on several earlier decisions from the Surrogate’s courts in which the Erbschaftsteuer has been denominated an "acquirer tax” and hold that a beneficiary will not be exonerated from paying it absent a specific direction in the will addressing foreign taxes. Further, respondents contend that the statutorily expressed policy of protecting residuary beneficiaries requires the will to be construed against beneficiaries who choose to subject themselves to foreign taxes. Finally, respondents maintain that even if the Erbschaftsteuer is an inheritance tax within the meaning of paragraph thirteenth, the testatrix’s instruction that petitioner keep the bequeathed funds outside of Germany reveals her intent that the people of Germany should not benefit from her death and therefore, her general estate should not be required to pay the German tax.

Analysis begins with the general rules of will construction which provide that a court is to determine and effectuate the intent of the testator and that in doing so, it must construe his or her words according to their ordinary and natural meaning (Matter of Walker, 64 NY2d 354, 357-358; Matter of Cord, 58 NY2d 539, 544; Matter of Wilhelm, 60 AD2d 32, 36, affd 46 NY2d 947). A testator who possesses testamentary capacity may dispose of property as he or she wishes and so long as the disposition is not contrary to law or public policy, a court may not undo the will merely because the testator’s desire does not comport with others’ notions of fairness and equity (Matter of Pepper, 307 NY 242, 249; see also, Matter of Walker, 64 NY2d, at 357, supra).

In paragraph thirteenth, testatrix stated that her estate, as a cost of its administration, shall pay "[a]ll estate, inheritance, and other death taxes, payable by reason of my death.” The language could not be clearer: all taxes — estate, inheritance, or other death taxes — payable by reason of her death were to be paid by her general estate. As one Surrogate stated, the word "means exactly what it imports * * * all and nothing less than all” (Matter of Greenwald, 186 Misc 654, 657). Such provisions exonerate preresiduary testamentary gifts from estate taxes (see, Matter of Shubert, 10 NY2d 461, 467) and we conclude that this clause operates to exonerate preresiduary testamentary gifts — such as the bequest to petitioner — from inheritance taxes as well. The words clearly and unambiguously reflect the testatrix’s intent that her preresiduary beneficiaries, including petitioner, are to take their specific bequests free of all inheritance taxes, no matter where or by whom those taxes were imposed.

Respondents contend, however, that the Erbschaftsteuer is an "acquirer tax,” not an inheritance tax, and that it should be paid by petitioner as the recipient of the legacy.

The Erbschaftsteuergesetz — the Inheritance Tax Law — was enacted by Germany on August 22, 1925 (see, Gumpel, Taxation in Federal Republic of Germany § 4/2.1, at 605, n 1 [1969, 2d ed]). In the earliest cases involving the Erbschaftsteuer and tax exoneration clauses contained in the wills of New York testators, Surrogates did not characterize it as an "acquirer tax.” Rather, they looked to the language in the wills to determine if the testator intended that the legatee bear the burden of the tax collected by the German government (see, Matter of Muller, NYU, Nov. 14, 1929, at 801, col 2; Matter of Damschinsky, NYU, Mar. 6, 1930, at 2837, col 3; Matter of Brock, NYU, Apr. 2, 1930, at 32, col 1; Matter of Nordlinger, NYU, July 30, 1936, at 284, col 1). In each case, the Surrogates found language revealing an intention that the beneficiary should not pay the Erbschaftsteuer; indeed, in one case, the Surrogate gleaned that intent from a testator’s direction, similar to Mrs. Herz’s, that "all inheritance taxes” be paid by his estate (see, Matter of Damschinsky, supra).

In 1934, the Westchester County Surrogate’s Court was asked to construe a will which directed that the residuary estate pay " 'any * * * inheritance * * * tax which shall become payable under any present or future law’ ” (Matter of Gotthelf, 152 Misc 309, 310). The Surrogate found this clause to be ambiguous and received extrinsic evidence to determine the testatrix’s intention regarding payment of "the tax demanded under the German Reich law taxing the passing of property to nationals in Germany” (id.). The evidence revealed that the testatrix had begun drafting her will in 1924 — prior to the 1925 enactment of the Erbschaftsteuergesetz — but did not execute it until 1926. Apparently, testatrix and her draftsman had not discussed German taxes while the will was being prepared or when it was executed. The Surrogate concluded from this that the testatrix intended to exonerate legatees from the payment of taxes assessed only by the laws of this State or country, not those of a foreign country. In dicta, he arbitrarily designated the Erbschaftsteuer as an "acquirer tax,” describing it as "a tax against the person who takes the gift. It is not a true inheritance or legacy tax” (id., at 311). From then on, Surrogates have referred to the Erbschaftsteuer as an "acquirer tax” and required wills to "clearly express * * * intent on the part of the testator to charge his general estate with the distinctive form of the German tax” before a foreign domiciliary would be exonerated from payment (Matter of Baer, 161 Misc 797, 799; see, Matter of Jandorf, 41 Misc 2d 712; see also, Matter of Williams, 60 Misc 2d 952, 953).

Thus, the ipse dixit characterization of the Erbschaftsteuer as an "acquirer tax” in Matter of Gotthelf (supra) had, by subsequent application of Surrogates, evolved into the rule applied by the Surrogate in this case — that the Erbschaftsteuer will not be paid from the general estate unless the testatrix has expressly stated that it should be. That rule was generally followed by Surrogates but this appears to be the first time the appellate courts have addressed the question.

We have stated that an inheritance tax is "a tax on the privilege of receiving property on the death of another” (Matter of Vanderbilt, 281 NY 297, 311, affd sub nom. Whitney v Tax Commn., 309 US 530). It is "laid upon the transfer of particular property to a particular person” and the amount and rate of the taxation may reasonably be determined by such factors as the amount which passes to the transferee and his relationship to the decedent (Farmers’ Loan & Trust Co. v Winthrop, 238 NY 488, 496, cert denied 266 US 633).

Under the Erbschaftsteuergesetz, the transfer of property to a legatee is a taxable event (see, 2 R ster, Business Transactions in Germany § 32.12 [2] [1991]; Gumpel, op. cit., § 4/2.3 [a]). The Erbschaftsteuer is assessed against the inheritance or, as one authority has described it, the "enrichment” of the beneficiary (see, Killius, 962 T.M., Business Operations in Germany § XTV.A [1992]; see also, 2 R ster, op. cit., § 32.12 [1]; Gumpel, op. cit., § 4/2.1). The rate of taxation is graduated according to the net value of the property transferred and the degree of relation between the decedent and the beneficiary (see, 2 R ster, op. cit, § 32.12 [3], [4] [a]; Gumpel, op. cit, §§ 4/ 2.1, 4/2.4, 4/2.5). Manifestly, then, the Erbschaftsteuer meets our definitions of an inheritance tax and it should be treated as such.

Respondents’ primary objection to doing so appears to rest upon the fact that the foreign tax, and the liability of the estate for it, is based on the beneficiary’s domicile and, absent a rule providing that the testator must expressly exonerate beneficiaries from foreign taxes, residuary beneficiaries will be adversely affected by the personal and unpredictable decisions of legatees who decide to live in foreign jurisdictions that impose onerous inheritance taxes on domiciliaries. But testators can easily protect their residuary beneficiaries from the uncertainty of foreign taxes, if they so choose, by limiting the exoneration clause to domestic taxes (see, e.g., Matter of Pepper, 307 NY 242, 244, supra [preresiduary dispositions exonerated from all taxes " 'imposed by any Commonwealth or State of the United States or Government of the United States’ ”]). In this case, testatrix knew petitioner lived in Germany and directed that her general estate pay all inheritance taxes. She did not limit that directive to domestic taxes, although she certainly could have done so if she wished, and it matters not that the drafter used "boilerplate” language in the will if such language clearly and unambiguously expressed her intention.

Next, respondents contend that a rule requiring specific exoneration from foreign taxes is in accord with this State’s public policy of protecting residuary beneficiaries, usually the natural objects of the testator’s bounty, as expressed in EPTL 2-1.8. That provision directs equitable apportionment of estate and other death taxes unless the testator’s will directs against apportionment (see, Matter of Shubert, 10 NY2d 461, 471, supra). But, the general policy furthered by EPTL 2-1.8 is subordinated to the wishes of the testator who directs otherwise in his or her will (see, EPTL 2-1.8 [a]; Matter of Cord, 58 NY2d 589, 545, supra). Moreover, the public policy of this State does not control the construction of a will, so long as the will is not contrary to public policy (see, Matter of Walker, 64 NY2d 354, supra). Here, the testatrix expressed her intent as the statute permits; thus, the exoneration clause in her will is not contrary to a public policy (compare, Matter of Walker, supra [devisees of personal property, which included adoption decrees, could not use will provisions to escape the restrictions of statute that sealed adoption records]).

Moreover, the residuary beneficiaries in this case — charitable organizations all — are not immediate family members of the decedent, the "usual” residuary beneficiaries that the Legislature intended to protect by enacting a tax apportionment statute (see, Matter of Pepper, 307 NY 242, 245, supra; see also, Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 2-1.8, at 143). Although we have declined to adopt different rules of construction depending on the character or relationship of the particular residuary beneficiary to the testator (see, Matter of Shubert, 10 NY2d, at 474, supra), these residuary beneficiaries can hardly suggest that the tax should fall on petitioner because they, not he, are the natural objects of Ilse Herz’s bounty.

Finally, even if we were to conclude that paragraph thirteenth is ambiguous, construction of the will as a whole reveals the testatrix’s intent that the tax be paid as a cost of administration (see, Matter of Carrner, 71 NY2d 781, 785-786; Matter of Thall, 18 NY2d 186, 192). Although the bequests in the residuary clause were made as a memorial to testatrix’s husband, petitioner was the only blood relative to take under the will and his was, by far, the most substantial legacy. Testatrix bequeathed him $250,000 and instructed him to keep $150,000 "for his own personal use” while directing that he use the remaining $100,000 to attend to her personal desires. If any funds remained after he did so, he was to keep them. Testatrix also gave petitioner all of her personal effects, including her "furniture, pictures, books, jewelry, wearing apparel, all photos, china, wine glasses, silver and carpets,” and she directed that her estate bear the expense of shipping the personalty to him. Finally, testatrix entrusted him with the upkeep of the graves of her parents and sister and she ensured that petitioner could attend to these special, personal testamentary provisions at no expense to himself.

The clearly expressed intent that petitioner receive at least $150,000 free and clear is not undermined or diminished, as respondents contend, by the unexplained instruction that he keep the bequeathed funds outside of Germany; the Erbschaftsteuer would be imposed no matter where the funds were located (see, Gumpel, op. cit., § 4/2.2).

In sum, we conclude that the petition should be granted because the Erbschaftsteuer is an inheritance tax, the testamentary instruction regarding "all” inheritance taxes includes the foreign inheritance tax, and thus paragraph thirteenth of the will of Use Herz unambiguously reflects her intent that the Erbschaftsteuer imposed on petitioner York Winter by virtue of his German domicile be paid by the testatrix’s estate as an expense of administration.

Accordingly, the order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the matter remitted to Surrogate’s Court, Bronx County, for further proceedings in accordance with this opinion.

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

Order reversed, etc.

      . Petitioner does not contend that the Erbschaftsteuer is an "other” tax payable by reason of the testator’s death, and concluding as we do that the Erbschaftsteuer is an inheritance tax, we need not address whether the German tax should otherwise be considered within paragraph thirteenth of the will.

      . Cases such as this, in which testatrix expressed her intent to shift all liability for the taxes on preresiduary bequests to her general estate, are to be distinguished from cases in which the residuary beneficiaries have disputed the effect of the antiapportionment clause upon their various residuary bequests (see, Matter of Shubert, supra; Matter of Pepper, 307 NY 242, 246-247, supra; Matter of McKinney, 101 AD2d 477). In the latter situation, we have stated that a testator’s antiapportionment intent must he unambiguously stated to clearly reflect the testator’s intent on the effect of spousal or charitable tax exemptions enjoyed by one of the residuary beneficiaries.


author: Titone, J.

text:
    [651 NE2d 1257, 628 NYS2d 238]
    In the Matter of National Union Fire Insurance Company of Pittsburgh, Pa., Respondent, v Eland Motor Car Company, Inc., et al., Appellants.
    Argued May 1, 1995;
    decided June 7, 1995

      POINTS OF COUNSEL

      Robert G. Cucinell, White Plains, and Fred C. Russcol for appellants.

      Granik Silverman Sandberg Campbell Nowicki Resnick Hekker, New City (David W. Silverman of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

The question presented on this appeal is whether a garage owner’s personal performance of certain nonrepair services for an automobile owner precluded the garage from asserting a lien on the vehicles pursuant to Lien Law § 184 (1) for the amount owed to the garage strictly for vehicle maintenance, repair and storage. Because we conclude that defendant garage owner’s additional services for the car owner did not operate to defeat the garage’s right to assert such a lien, we reverse and remand for a determination of the amount of the lien.

I

International Automobiles, Ltd. was a company engaged in the sale and purchase of "collectors’” cars. In 1975, International employed respondent Eland Motor Car Company, a registered automotive repair shop, and its principal, respondent Andrew Bach, to restore, repair, maintain and store its collection of vehicles. Bach received a monthly fee of $4,000 for overseeing the collection as well as a 10% finder’s fee for any cars he located for International and an additional 10% commission, both to be paid to Bach at the time of the sale of any such car. Over time, International ceased paying Eland and Bach for their services. In 1988, Eland asserted a garage owner’s lien pursuant to Lien Law § 184 (1) on the International vehicles still in its possession for the portion of the outstanding debt pertaining solely to the garage services.

Eland arranged to conduct a garage keeper’s lien sale in November 1988 to sell several of International’s cars remaining in its possession to satisfy International’s unpaid repair and storage bills. Eland duly served International with notices of lien and sale (see, Lien Law § 201). International preliminarily obtained a stay against the sale, but its action against Eland for conversion which challenged the validity of the lien was subsequently dismissed with prejudice.

Meanwhile, in separate and unrelated Federal actions, petitioner National Union Fire Insurance Company became a Federal money judgment creditor of International’s for over $500,000. National filed the money judgments in the Westchester County Clerk’s office in 1989. Subsequently, Eland and National Union sought to satisfy their competing interests against International by acquiring the rights to the proceeds of the sale of five of International’s cars that remained in Eland’s physical custody.

Petitioner National Union commenced this proceeding against Eland pursuant to CPLR 5225 (b) to compel Eland to turn over the cars in its possession. International moved to intervene, but its application was dismissed after International’s counsel withdrew and the company failed to respond to notices of the impending proceedings. Eland conducted a sale of the vehicles on June 7, 1990 pursuant to Supreme Court order and deposited the sums received with the clerk of the court. Supreme Court later granted National Union’s petition, concluding that National Union’s interest as a judgment creditor was superior to Eland’s interest in the cars. The court directed that National Union satisfy its judgments from the proceeds of the sale of the vehicles in Eland’s possession, with any amount realized from the sale in excess of those judgments payable to Eland up to a maximum of $139,244 — the amount Eland claimed it was owed for the garage services performed on the cars minus the amount claimed for the damaged Porsche. The court reasoned that Eland was not entitled to a priority lien on the cars pursuant to Lien Law § 184 (1) because Eland and International had been engaged in a joint enterprise. As a result of that conclusion, the court did not determine the amount Eland was owed for repair and storage services, although the court did conclude that Eland was owed "appreciable amounts.”

The Appellate Division affirmed. The Court rejected the trial court’s conclusion that a joint venture existed between Eland and International. Nonetheless, the Court concluded that because the transactions between the two entities constituted much more than the traditional garage owner/car owner relationship, Lien Law § 184 was inapplicable. In so holding, the Court noted that Eland and Bach collectively oversaw the purchase and sale of the vehicles in exchange for 10% of the purchase and sale price and managed the car collection for a monthly fee. Accordingly, the Court concluded that petitioner’s interest in the vehicles as a judgment creditor was superior to Eland’s interest as a garage keeper. For the following reasons, we now reverse and remand for further proceedings in accordance with this opinion.

II

CPLR 5225 (b) permits a judgment creditor to seek satisfaction of the debtor’s obligation by commencing a special proceeding against a third person in possession of money or personalty in which the judgment debtor has an interest. Rival claimants to the assets or funds may be joined in that proceeding so that the court may prioritize the competing interests (CPLR 5227, 5239; see also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5239:l, at 443-444). Here, petitioner National Union Fire Insurance Company, as a judgment creditor of International Automobiles, seeks to satisfy International’s debt by having Eland turn over all of the proceeds of the sale of International’s automobiles that remained in respondent Eland’s possession. To obtain such relief under CPLR 5225 (b), petitioner must establish that its right to the proceeds of the sale of the vehicles is superior to respondent Eland’s interest therein.

Respondent Eland claims that it has a superior interest in the proceeds of the sale of the International automobiles at issue because it has a garage keeper’s lien on the property pursuant to Lien Law § 184. That section, pertaining to the lien of a bailee of motor vehicles, provides in pertinent part that a person keeping a registered motor vehicle repair shop or garage "and who in connection therewith tows, stores, maintains, keeps or repairs any motor vehicle * * * at the request or with the consent of the owner * * * has a lien upon such motor vehicle * * * for the sum due for such [services] * * * and may detain such motor vehicle * * * at any time it may be lawfully in his possession until such sum is paid” (Lien Law § 184 [1], [4]). The purpose of the enactment is "to accord a form of security for personal credit extended by the vendor of service and supplies enhancing the value of the specified vehicle” (Slank v Dell’s Dodge Corp., 46 AD2d 445, 448).

Lien Law § 184 was an outgrowth of the artisan’s lien recognized at common law, whereby a worker "who by his labor enhanced the value of a chattel, obtained a lien upon it for the reasonable value of the work performed. That lien endowed the artisan with the exclusive right to possession of the repaired article until his charges were satisfied” (Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 161). Under settled commercial principles, when, in the ordinary course of business, an artisan or repair person furnishes services or materials with respect to goods subject to a security interest, a statutory lien upon the goods remaining in that person’s possession takes priority over even a perfected security interest therein, unless the statute authorizing the lien provides otherwise (Motor Discount Corp. v Scappy & Peck Auto Body, 12 NY2d 227; UCC 9-310, Comments 1, 2). The garage keeper’s superior lien "is a specific one attaching only to [the] certain motor vehicle” that was the subject of the unpaid charges (New York Yellow Cab Co. Sales Agency v Laurel Garage, 219 App Div 329, 334).

The statute clearly inures to the benefit of a garage owner who can establish the following elements: (1) the garage is the bailee of a motor vehicle (see, Slank v Dell’s Dodge Corp., 46 AD2d 445, 448, supra); (2) it has performed garage services or stored the vehicle with the vehicle owner’s consent (cf., id.); (3) there was an agreed-upon price or, if no agreement on price had been reached, the charges are reasonable for the services supplied (see, New York Yellow Cab Co. Sales Agency v Laurel Garage, 219 App Div 329, 333, supra); and (4) the garage is a duly registered motor vehicle repair shop as required under article 12-A of the Vehicle and Traffic Law (see, Lien Law § 184 [4]). The parties do not dispute that respondent Eland is a properly registered repair shop or that Eland repaired, restored and garaged International’s cars.

Petitioner here attempts to defeat Eland’s garage keeper’s lien by arguing primarily that the business arrangement between Bach, Eland and International was beyond that of a traditional garage keeper and vehicle owner. In essence, petitioner is claiming that Eland was not a true bailee of the vehicles deposited by International in its shop for repairs. To support this argument, petitioner points to the arrangement whereby Bach would receive a 10% commission on the purchase price and sale price of each car acquired or sold in exchange for his general management of the car collection, as well as to the fact that Eland was paid by International on a monthly basis for garage services rather than on an invoice-by-invoice basis. This claim does not withstand scrutiny.

A bailment was undeniably established here by International’s voluntary relinquishment to Eland of the cars it owned for repairs, servicing and storage (see, Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 166, supra). The record does not support the conclusion that Eland had any ownership interest in the vehicles, that Eland was a partner by virtue of any profit- or loss-sharing, or that Eland and International were engaged in a joint enterprise — business relationships that might otherwise defeat Eland’s claim that it was the bailee of the vehicles as required for the assertion of such a lien. Accordingly, the Appellate Division’s conclusion that no joint venture existed between Eland and International more nearly comports with the record evidence than Supreme Court’s contrary factual finding. Critically, even if Bach’s arrangement with International gave him a personal interest in the vehicles beyond that of a bailee, Eland separately seeks to recover only for the reasonable value of the repairs and storage it performed, and Bach’s uncontroverted testimony provides that the management fees to be paid to him by International were entirely separate from those sums being sought by Eland for the garage services.

Notwithstanding the ongoing business arrangement between Bach, personally, and International, no reason can be articulated to deprive Eland of the means established by Lien Law § 184 (1) for recouping just compensation for the garage and storage services which enhanced the value of the collectible cars. No language is contained in the statute or the case law which would indicate that a garage owner should be penalized simply because the shop was also engaged in a continuing business relationship with the owner of multiple vehicles. Similarly, the fact that International may have paid Eland on a monthly basis for its garage services rather than on an invoice-by-invoice basis does not preclude the garage from asserting the lien, so long as the garage establishes the amount of the outstanding fees for services rendered with respect to each particular car that is the subject of a garage keeper’s lien.

Because the courts below erroneously determined that the nature of the business contacts between Eland and International negated Eland’s right to assert a garage owner’s lien pursuant to Lien Law § 184, they failed to reach any determination on the amount of the outstanding debt owed by International to Eland for the restoration, repair and storage of the vehicles in question. Accordingly, on remand, the court must determine the amount of the outstanding debt owed by International for each particular vehicle (see, New York Yellow Cab Co. Sales Agency v Laurel Garage, 219 App Div 329, 333, supra). Respondent Eland holds a superior lien for that amount against each vehicle, and petitioner National Union will be entitled to any excess up to the amount of its unsatisfied money judgments.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Order, insofar as appealed from, reversed, etc.

      . These cars included a 1984 Ferrari, a 1979 Mercedes Benz, a 1981 Mercedes Benz, a 1982 Porsche, and a 1977 Jaguar.

      . Respondent Eland purchased three of the vehicles at the sale for a total of $24,000. The fourth vehicle had a title defect and could not be purchased at the sale. The fifth vehicle, the Porsche, was apparently damaged by Eland’s employees while in transit, and is the subject of a pending insurance claim.

      . This subdivision, entitled "Property not in the possession of judgment debtor,” provides, in relevant part: "Upon a special proceeding commenced by the judgment creditor, against a person in possession or custody of money or other personal property in which the judgment debtor has an interest, or against a person who is a transferee of money or other personal property from the judgment debtor, where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor’s rights to the property are superior to those of the transferee, the court shall require such person to pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff’.


author: Per Curiam. Titone, J.

text:
    [651 NE2d 1261, 628 NYS2d 242]
    Sean Ganess, an Infant, by His Parents and Natural Guardians, Nelson Ganess et al., Appellant, v City of New York et al., Respondents.
    Argued May 2, 1995;
    decided June 7, 1995

      POINTS OF COUNSEL

      Pegalis & Wachsman, P. C., Great Neck (Gilbert Spencer, Steven E. Pegalis and Sanford S. Nagrotsky of counsel), for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Elaine R. Rothenberg and Larry A. Sonnenshein of counsel), for respondents.
   OPINION OF THE COURT

Per Curiam.

Plaintiff was born on August 6, 1973 at Elmhurst General Hospital, Queens County, with a medical condition known as Erb’s palsy, which affects his left shoulder and arm. Beginning shortly after his birth, plaintiff visited doctors at the Hospital’s Pediatric Neuromuscular Rehabilitation Clinic where his condition was monitored and his parents received instruction in a therapeutic program of home exercises.

At a meeting with his parents when plaintiff was 3 Vi years old, the doctors at Elmhurst explained that plaintiff’s injuries were likely to be permanent. At that meeting, plaintiff’s mother discussed with the doctors whether plaintiff’s delivery by Gsection might have prevented the condition.

On May 18, 1984, nearly 11 years after his birth, plaintiff filed a notice of claim against defendants alleging negligence by the medical personnel involved in his 1973 delivery.

Since a notice of claim in any medical malpractice action against defendants must be filed within 90 days after the claim arises (General Municipal Law § 50-e; McKinney’s Uncons Laws of NY § 7401 [2] [New York City Health and Hospitals Corporation Act § 20 (2); L 1969, ch 1016, § 1, as amended]), and plaintiff indisputably failed to file such a notice until nearly 11 years after the alleged negligence, the only question before the Court is whether plaintiff can invoke the continuous treatment doctrine to excuse his delay (see, Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 633).

Under the continuous treatment doctrine, the time in which a plaintiff must bring an action alleging malpractice is stayed "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v City of New York, 12 NY2d 151, 155). As this Court has stated: "[t]he policy underlying the continuous treatment doctrine seeks to maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure. * * * Implicit in the policy is the recognition that the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so” (McDermott v Torre, 56 NY2d 399, 408 [citations omitted]). Thus, it is "essential to the application of the doctrine * * * that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit. * * * [N]either the mere 'continuing relation between physician and patient’ nor 'the continuing nature of a diagnosis’ is sufficient” (Nykorchuck v Henriques, 78 NY2d 255, 258 [citations omitted]).

Despite the trial court and Appellate Division writings in the present case, neither individuals suffering from chronic conditions, nor patients being "monitored” for a specific medical condition to ensure that it improves or at least does not deteriorate (as opposed to a general physical examination), are necessarily outside the doctrine (see, Richardson v Orentreich, 64 NY2d 896, 899).

Here, however, plaintiff failed to show that the treatment rendered was continuous for the entire 11-year period now alleged. The last notation on plaintiff’s medical chart is dated September 21, 1983. Plaintiff’s primary physician treating the Erb’s palsy, Dr. Beatrice Kaplan, testified that she last saw plaintiff in August 1983. Plaintiff’s father, in an affidavit submitted in opposition to defendants’ motion for summary judgment, claimed merely that he and his wife continued to take plaintiff to the hospital clinic "once a year” after 1983, yet provided no concrete information as to the dates of such visits or the treatment (if any) rendered. The conclusory assertion of the supposedly continuous nature of plaintiff’s treatment was insufficient, as a matter of law, to rebut the documentary and testimonial evidence to the contrary and thus to establish plaintiff’s entitlement to the doctrine (see, Curdo v Ippolito, 63 NY2d 967).

Given the above, we need not and do not address a potentially intriguing idiosyncrasy of this case — namely, that the negligence was allegedly committed by an obstetrician at plaintiff’s birth, whereas the ensuing 11 years of admittedly nonnegligent treatment were provided by an entirely different set of doctors with a different medical specialty (see, Pierre-Louis v Ching-Yuan Hwa, 182 AD2d 55, 57; Dundon v United States, 559 F Supp 469, 472; but see, Ulrich v Veterans Admin. Hosp., 853 F2d 1078, 1080). Nor is there any claim that the infancy toll provisions of CPLR 208 read in accordance with General Municipal Law § 50-e (5) would serve to remedy the untimeliness problem here as plaintiff failed to file his notice of claim within 10 years, 90 days of the alleged malpractice (compare, LaBello v Albany Med. Ctr. Hosp., 85 NY2d 701 [decided today], with Daniel J., supra).

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

Titone, J.

(concurring). I agree with the majority that plaintiff failed to establish that he was continuously treated by neuromuscular specialists affiliated with defendant Elmhurst General Hospital for the entire 11-year period in issue. I write separately only to emphasize my own serious questions as to whether the most fundamental requirement of the continuous-treatment doctrine —i.e., an unbroken course of treatment by a particular practitioner or closely affiliated group of practitioners — was satisfied here.

The Statute of Limitations on a medical malpractice claim is tolled when "there is continuous treatment for the same illness, injury or condition which gave rise to the * * * act, omission or failure [complained of].” (CPLR 214-a.) The policy underlying the doctrine "seeks to maintain the physician-patient relationship in the belief that the most efficacious medical care will be maintained when the attending physician remains on a case from onset to cure” (McDermott v Torre, 56 NY2d 399, 408; see, Borgia v City of New York, 12 NY2d 151).

This Court has repeatedly held that where the continuing treatment is provided by someone other than the practitioner alleged to have been negligent, there must be " 'an agency or other relevant relationship’ ” between the two (Meath v Mishrick, 68 NY2d 992, 994, quoting McDermott v Torre, supra, at 403; see, Florio v Cook, 48 NY2d 792, affg 65 AD2d 548). Further, we have explicitly rejected the notion that the practitioners’ common affiliation with a hospital is sufficient to constitute the requisite "relevant relationship” (Meath v Mishrick, supra; see also, Ruane v Niagara Falls Mem. Med. Ctr., 60 NY2d 908). Finally, this Court has held that the necessary relationship is not established by a mere referral from the purportedly negligent practitioner to another practitioner who is to furnish ongoing treatment (Floria v Cook, supra; see also, Meath v Mishrick, supra, at 995 [overruling Fonda v Paulsen, 46 AD2d 540]).

These holdings demonstrate that the application of the "continuing treatment” toll to the present case is, at best, dubious. The alleged malpractice here was committed by practitioners affiliated with the obstetrical clinic operated by Elmhurst General Hospital. The "continuous treatment” on which plaintiff’s claim for a statutory toll is predicated, however, is that provided by Dr. Kaplan and the entirely separate pediatric neuromuscular clinic operated by Elmhurst. Accordingly, if the continuous-treatment doctrine is to be applied on these facts, plaintiff must be able to identify a nexus between the two clinics that could be deemed a "relevant relationship.”

The fact that the two sets of practitioners are both affiliated with Elmhurst is clearly not a sufficient "relevant relationship” under the case law (see, Meath v Mishrick, supra). Further, the fact that the allegedly negligent obstetrical practitioners referred plaintiff to the neuromuscular clinic for ongoing treatment cannot establish the requisite relationship, because "no master-servant or principal-agent relationship” exists (Floria v Cook, 65 AD2d, at 548, supra). The only remaining reason for applying the continuous-treatment rule to these facts would be that both treating clinics were operated by the same umbrella entity, Elmhurst General Hospital —the entity that was named as a party defendant.

However superficially appealing this factor may be, it cannot be accepted uncritically as a basis for applying the continuous-treatment rule. First, treating the hospital as a unitary provider for purposes of the continuous-treatment doctrine is questionable because it could lead to circumvention of the Meath v Mishrick (supra) principle that the practitioners’ common affiliation with a particular hospital cannot furnish the necessary continuity. Second, the approach is troubling because it would lead to the application of the continuous-treatment toll in cases where its purposes would not necessarily be advanced. A hospital may fairly be held liable for the negligent acts of its clinics under the traditional respondeat superior principles. However, a hospital is an impersonal entity that can provide medical care only in the abstract sense and is certainly not capable of forming the intimate one-on-one physician-patient relationship that the continuing-treatment doctrine was designed to protect (see, Nykorchuck v Henriques, 78 NY2d 255, 258). Finally, permitting use of the continuous-treatment toll where the injured patient has been treated by separate clinics that happen to be operated by the same large medical institution would inevitably lead to differential treatment for those who rely on such institutions as their primary health-care providers and those who rely on private providers operating individually or in small, professionally homogenous groups. Whether such differential treatment is a sensible and legally acceptable outcome is a weighty question that requires considerably more thought and analysis.

Unfortunately, the posture in which this case has reached us prevents the Court from considering the legal viability of plaintiffs continuous-treatment-by-an-institution theory. The issue is outside of the Court’s reviewing sphere for the simple reason that defendants have elected not to raise it. I would hope that, notwithstanding this inexplicable choice by these litigants, the Court’s opinion in this case will not be read as an endorsement of plaintiffs continuous-treatment theory. Rather, the Court’s decision should be read for what it is: a narrow determination that, even assuming the rule’s theoretical applicability, the facts necessary to establish treatment during the entire relevant period were not sufficiently alleged. Because I agree with that narrow conclusion, I concur in both the rationale and the result.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion; Judge Titone concurs in a separate concurring opinion.

Order affirmed, with costs.

       Plaintiffs approach could also have implications for those who receive their health care through health maintenance organizations.


text:
    [651 NE2d 1264, 628 NYS2d 245]
    In the Matter of Lynn J. Levy, Respondent, v City Commission on Human Rights, Also Known as New York City Commission on Human Rights, et al., Respondents. In the Matter of New York City Transit Authority, Appellant, v New York City Commission on Human Rights, Respondent.
    Argued May 2, 1995;
    decided June 8, 1995

      POINTS OF COUNSEL

      Eugene Freidus, Brooklyn, Albert C. Cosenza, Martin B. Schnabel and George S. Grupsmith for appellant.

      Rose M. Morgan, Long Island City, Arnold S. Cohen, Suzanne King and Donna Lise Dambrot for Lynn J. Levy, respondent.

      Paul A. Crotty, Corporation Counsel of New York City (Michael S. Adler and Francis F. Caputo of counsel), for New York City Commission on Human Rights, respondent.
   OPINION OF THE COURT

Simons, J.

As this appeal comes to us, the only issue presented is whether the New York City Transit Authority is subject to the jurisdiction of the New York City Commission on Human Rights. We hold that it is, and therefore affirm the order of the Appellate Division.

In September 1987 petitioner Lynn Levy filed a complaint with the New York City Commission on Human Rights, alleging discrimination by her former employer, the New York City Transit Authority. Levy complained that she had been subject to sexual harassment, and that the termination of her probationary employment with the Transit Authority was the direct result of her refusal to go on dates with her supervisor. The Commission awarded her relief, and the Transit Authority instituted this CPLR article 78 proceeding challenging the Commission’s jurisdiction.

The Administrative Code of the City of New York vests in the New York City Commission on Human Rights the authority and jurisdiction to eliminate and prevent discrimination within the City of New York (see generally, Administrative Code of City of NY tit 8). It provides further that it shall be illegal for an employer to discharge or otherwise discriminate against an employee on the basis of gender (Administrative Code § 98-107 [1] [a]). The jurisdiction of the City Commission over matters of discrimination within New York City is concurrent with the jurisdiction of the New York State Division of Human Rights (General Municipal Law § 239-s).

At the time petitioner Levy filed her complaint against the Transit Authority, the Commission was authorized to:

"receive, investigate and pass upon complaints and to initiate its own investigations of: * * * [discrimination * * * whether practiced by private persons, associations, corporations and, after consultation with the mayor, by city officials or city agencies” (Administrative Code § 8-105 [4] [b]).

Respondent contends that this statutory provision authorizes proceeding only against private corporations and not against it because it is a public benefit corporation (see, Public Authorities Law § 1201 [1]). However, the Administrative Code’s definition of the term "person[s]” includes corporations and the term "private” cannot be read to modify the separate reference to "corporations” without making that separate reference redundant (see, Administrative Code § 8-102 [1]). We therefore determine that Administrative Code § 8-105 (former [4]) includes public corporations. The Transit Authority does not otherwise dispute that the Commission may entertain this claim: the Transit Authority is an employer within the meaning of the Administrative Code and the matters at issue occurred within the geographical scope of the City Commission’s jurisdiction. Accordingly, we conclude the Transit Authority is subject to the jurisdiction of the New York City Commission on Human Rights.

The Authority seeks to avoid this result by claiming that it is an independent and autonomous public authority created by the Legislature and that the City Commission may exercise jurisdiction over it only if the Legislature has expressly authorized such local regulation and control. We have indeed recognized that public authorities are corporate bodies which, although created by the State, "are independent and autonomous, deliberately designed to be able to function with a freedom and flexibility not permitted to an ordinary State board, department or commission” (Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 423; see also, Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84, 88; Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361, 369). Thus, where the provisions of the Public Authorities Law vested the New York State Thruway Authority with the specific and detailed power required to construct and maintain a thruway system, we concluded that the Thruway Authority, when transacting its own business affairs, was not subject to the public bidding requirements which are imposed on other boards or departments of the State pursuant to State Finance Law § 135 (see, Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., supra). Similarly, we held that contracts awarded by the State University Construction Fund — a public benefit corporation created to receive and administer moneys available for the construction of facilities of the State University — were not subject to a statute permitting adjustment of contracts awarded "by the state” (see, Grace & Co. v State Univ. Constr. Fund, supra). And we determined that the Manhattan and Bronx Surface Transit Operating Authority — a public authority that is a subdivision of the New York City Transit Authority — was not a civil division of the State and that the Legislature did not violate the civil service provision of the State Constitution when it expressly exempted that public authority from the requirements of the Civil Service Law (see, Collins v Manhattan & Bronx Surface Tr. Operating Auth., supra).

The general theme of these decisions is that public authorities and other public benefit corporations are created to accomplish a specific purpose or mission and are endowed with the freedom and flexibility necessary to achieve that mission. They are "independent and autonomous” to the extent that they should be free from requirements imposed on other State agencies that would interfere with the accomplishment of the public corporation’s purpose (see, Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., supra, at 423).

The purpose of the New York City Transit Authority is to acquire and operate transit facilities (see, Public Authorities Law § 1202 [1]). It cannot be seriously contended — nor does the Transit Authority press such an argument — that compliance with the prohibitions against employment discrimination would interfere with its function and purpose, particularly where employment practices are tangential to the Transit Authority’s mission (cf., Matter of Maloff v City Commn. on Human Rights, 38 NY2d 329, 333-334, supra; Matter of Board of Higher Educ. v Carter, 14 NY2d 138).

Further, we cannot accept the contention that specific legislative authority is required for the Commission’s oversight of the Transit Authority (compare, Matter of New York Post Corp. v Moses, 10 NY2d 199 [private tollpayer or citizen could not inspect the books of a public authority in the absence of statutory authority]). The Commission’s jurisdiction over the Authority obtains from the Commission’s authority to investigate complaints of employment discrimination, the Transit Authority’s status as a corporation, and its conduct as an employer in the City of New York. The Legislature has expressly declined to restrict the scope of the City Commission’s jurisdiction and authority (see, General Municipal Law § 239-s), and there is no provision in the Public Authorities Law which appears to preclude the City Commission’s jurisdiction over the New York City Transit Authority (compare, e.g., Public Authorities Law § 1307 [7] [the Capital District Transportation Authority is not subject to the jurisdiction of local governments unless specifically provided]).

Finally, the Transit Authority contends that the jurisdiction of the Commission is precluded by statutory and constitutional municipal home rule provisions. It asserts that the City of New York lacks the power "to adopt local laws which impair the powers of any other public corporation” (Municipal Home Rule Law § 10 [5]). But the Transit Authority does not, and cannot, contend that its powers as an employer (see, Public Authorities Law § 1204 [6]; § 1210) include the right to discriminate on the basis of gender. Indeed, by conceding the jurisdiction of the State Division of Human Rights, the Transit Authority acknowledges that limitation on its powers, and thus the identical local proscription against sex discrimination cannot be construed as an impairment of the Transit Authority’s powers. Nor can the jurisdiction of the New York City Commission on Human Rights be viewed as a violation of the constitutional home rule provision, which limits a locality’s authority to the adoption of local laws "not inconsistent with the provisions of * * * any general law” (NY Const, art IX, § 2 [c] [i]). The City’s adoption of local laws on human rights is a valid exercise of the City’s broad police power, which, we have said, is restricted to the extent that the local law may not be inconsistent with general law and may not intrude into an area which the Legislature has preempted (see, New York State Club Assn. v City of New York, 69 NY2d 211, 217; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105). Administrative Code § 8-107 (1) (a) is not inconsistent with article 15 of the State Executive Law or article 5, title 9 of the Public Authorities Law, and manifestly, the Legislature has not preempted the area of human rights because it has expressly recognized the concurrent jurisdiction of the City Commission on Human Rights with respect to matters in New York City (General Municipal Law § 239-s).

In sum, we conclude that the New York City Commission on Human Rights had jurisdiction to hear and determine petitioner Levy’s complaint against the New York City Transit Authority, and that the status of the Transit Authority as a State-created public authority does not exempt it from the Commission’s jurisdiction.

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

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

Order affirmed, with costs.

      . Unless otherwise noted, all references to the New York City Administrative Code are to the provisions in effect at the time of petitioner Levy’s complaint (see, 1986 NY City Charter; 1986 Administrative Code of City of NY).

      . General Municipal Law § 239-s recognizes that both agencies may each exercise their authority over illegal discrimination within the City of New York; we have held that the possession of authority and jurisdiction of one does not preclude the exercise of authority and jurisdiction by the other (see, Matter of Maloff v City Comma, on Human Rights, 38 NY2d 329, 333). We reject the Commission’s contention that this provision operates to vest the Commission with jurisdiction over the Transit Authority because the State Division of Human Rights enjoys such jurisdiction (compare, Executive Law § 295 [16] [State Division enjoys concurrent jurisdiction with the City Commission "over the administration and enforcement” of certain provisions of the Administrative Code]).

      . Administrative Code § 8-105 (4) currently provides the Commission with the authority to investigate "Discrimination against any person or group of persons, provided, however, that with respect to discrimination alleged to be committed by city officials or city agencies, such investigation shall be commenced after consultation with the mayor” (§ 8-105 [4] [a] [ii]).


author: Chief Judge Kaye.

text:
    [651 NE2d 1268, 628 NYS2d 249]
    In the Matter of Bonnie B. Zechmann, as Executrix of Anna Angel, Deceased, Claimant, v Canisteo Volunteer Fire Department et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers’ Compensation Board, Respondent.
    Argued April 25, 1995;
    decided June 8, 1995

      POINTS OF COUNSEL

      Morris N. Lissauer, New York City, for appellant.

      Dennis C. Vacco, Attorney-General, New York City (Howard B. Friedland, Victoria A. Graffeo, Peter H. Schiff, Jane Lauer Barker and Theresa E. Wolinski of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

The New York workers’ compensation statute, like many across the country, provides for continuing jurisdiction over cases and authorizes the reopening of closed cases. In addition, New York’s statute includes a unique feature: a fund set up especially to administer and pay claims arising from the reopening of closed cases. Supported by assessments against employers and their carriers, the Special Fund for Reopened Cases balances the need for continuing jurisdiction in order to insure fairness to injured workers — for example, where injury first manifests itself long after a case has been closed — with the practical difficulties inherent in adjudicating matters that may be decades old (3 Larson, Workmen’s Compensation Law § 81.61, at 15-1194.169 [1995]).

By this appeal, we are asked to determine whether a claim by a surviving spouse for death benefits traceable to a 1951 injury suffered by a workers’ compensation beneficiary is time-barred. We conclude, as did the Workers’ Compensation Board and the Appellate Division, that the claim is not barred and the Special Fund is liable.

The facts of this case began nearly 44 years ago, on August 8, 1951, when Gerald Angel was kicked in the head while participating in a game of donkey baseball as a fund-raising event for the Canisteo Volunteer Fire Department. Pursuant to the Volunteer Firemen’s Benefit Law, Angel received approximately 77 weeks of workers’ compensation payments totaling $2,490 for a temporary disability. The last payment was made in 1955, when the case was closed without a finding of permanent injury.

Angel died on November 11, 1986 following a stroke, and on October 28, 1987, his surviving spouse (and her estate after her death) brought a workers’ compensation claim for death benefits against the Fire Department. Her claim was supported by a medical report that the death was related to the 1951 accident. The Fire Department’s self-insurance plan controverted liability on the basis that the death was not causally related to the original injury, but that defense was rejected by an Administrative Law Judge (ALJ). The finding of causal relation was not appealed.

In a series of decisions following hearings, the ALJ found Workers’ Compensation Law § 123 (relating to the jurisdiction of the Board to reopen cases) and section 25-a (establishing the liability of the Special Fund) inapplicable, held the Fire Department’s carrier liable for the death claim and awarded a lump-sum payment. The Fire Department sought review by the Workers’ Compensation Board claiming that section 25-a was applicable and that the Special Fund was liable. The Board modified the ALJ’s order, finding that the claim fell within the provisions of section 25-a, transferred the previously established liability to the Special Fund and otherwise affirmed the decision that the claim was not time-barred under section 123. The Special Fund appealed naming the claimant, the Fire Department and the Workers’ Compensation Board as respondents. The Appellate Division affirmed, as do we.

On its appeal, the Special Fund argues that three provisions of the Workers’ Compensation Law bar the claim as untimely. As the ensuing discussion shows, none of these arguments has merit.

The Time-Bar of Section 123

Section 123 provides the Workers’ Compensation Board with authority to reopen closed cases, subject to the time limitation that no awards shall be made against the Special Fund or against an employer where the application is made "after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation” (Workers’ Compensation Law § 123; see, 3 Larson, Workmen’s Compensation Law § 81.10, at 15-1045 [1995] [discussing administrative burden in reopening cases]). This "eighteen- and eight”-year time limitation applies only to cases which have been closed and are being reopened, but would not bar a new claim or continuing consideration of an open case (see, e.g., Matter of Fletcher v Weil Chevrolet Corp., 135 AD2d 964, 965).

The first question we must answer, then, is whether a claim for benefits arising from a death causally related to a covered injury is a new claim or a reopening of the original case subject to the time limitations of section 123. Although we have not spoken specifically to the issue, it is generally accepted that a claim for death benefits — often, as here, involving the quite different question of whether the injury was causally related to the death — is a separate and distinct legal proceeding brought by the beneficiary’s dependents and is not equated with the beneficiary’s original disability claim (2 Larson, Workmen’s Compensation Law § 64.11, at 11-195 [1995]). This principle has been recognized since the early days of workers’ compensation law (see, e.g., 1934 Atty Gen [Inf Opns] 509, 510; see also, Matter of Keenholts v Bayer Co., 263 NY 77, 78 [implying legal distinction in granting claimant both death benefits and disability payments accrued to date of death]; Matter of Lutz v Huffman & Co., 231 NY 622; Matter of Iannone v Radory Constr. Corp., 285 App Div 751, 755 ["rights of dependents to death benefits are created by law and not derived from any right conferred upon a deceased employee”], affd 1 NY2d 671; Donoho v Atlantic Basin Iron Works, 210 App Div 535, 536). It comports as well with the structure of the workers’ compensation statute, which provides separately for disability benefits (Workers’ Compensation Law § 15) and death benefits (Workers’ Compensation Law §16).

We therefore agree with the ALJ, the Board and the Appellate Division that section 123 — which focuses exclusively on the Board’s authority to reopen closed cases — is not applicable here. Thus, contrary to the argument of the Special Fund, the "eighteen- and eight”-year time limitation contained in that provision does not bar the new claim for death benefits. Of course, a claim for death benefits still must be filed within the two-year limitations period prescribed by Workers’ Compensation Law § 28.

The Time-Bar of Section 25-a (1)

The Special Fund next argues that section 25-a, governing its liability, incorporates the time limitations of section 123.

The primary purpose of section 25-a (1) is to transfer liability for awards from employers and carriers to the Special Fund where, as here, death resulting from the injury occurred more than seven years from the date of the injury and more than three years after the last payment of compensation (Workers’ Compensation Law § 25-a [1] [3]; see also, Minkowitz, Practice Commentaries, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law § 25-a, at 358). The Special Fund has conceded its liability under this section, if the award is not time-barred (see also, Matter of Riccardi v Dellwood Dairy Co., 38 AD2d 666, 666-667).

Section 25-a (1) (3) specifies that it is subject to the provisions of section 123, which the Special Fund argues makes the "eighteen- and eight”-year limitation applicable to this case. Incorporation of section 123 into section 25-a, however, does not alter the scope of section 123, which applies only to reopened cases, not new claims for death benefits. The claimant here had not previously filed a claim for death benefits and therefore her claim is new, falling outside section 123 even as incorporated into section 25-a.

As section 123’s "eighteen- and eight”-year time limitation does not apply to the claim, the mere transfer of liability for the death benefit award to the Special Fund cannot create a bar to an otherwise valid claim.

The Time-Bar of Section 25-a (6)

Finally, the Special Fund argues that the claim is barred by the time limitation contained in section 25-a (6), which reads identically to the "eighteen- and eight”-year time limitation in 123. Just as section 123 restricts the Board’s jurisdiction to reopen cases, section 25-a (6) restricts the Board’s authority to award claims against the Special Fund or employers after the time period has elapsed (Minkowitz, Practice Commentaries, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law § 25-a, at 359). The Special Fund asserts that the accrual date for this Statute of Limitations is the date of injury, not the date of death, thereby extinguishing the claim for death benefits in 1969, 17 years before the death.

Once again, however, the status of the claim for death benefits determines the dilemma. As the claim for death benefits is a new legal right, the accrual date necessarily must be the date of the death giving rise to claim. Clearly, the cause of action for death benefits could not accrue prior to the death and surely could not expire before the death.

Applying these principles to the facts before us, the claim for death benefits — a new claim legally separate and distinct from the closed disability claim — does not constitute the reopening of a closed case. Therefore, section 123 and its time bar are not applicable, either independently or as incorporated into section 25-a. The date of death begins the running of the limitations period of section 25-a (6). To be entitled to benefits, the claimant had only to prove that the death was causally related to the injury, which she did; that determination is uncontested. The claimant having brought the claim for death benefits within two years of the date of death, the claim was timely filed.

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.


text:
    [651 NE2d 1272, 628 NYS2d 253]
    Robert P. Michaels, as Administrator of the Estate of John Michaels, Plaintiff, v City of Buffalo, Defendant, and Memorial Ambulance Service, Inc., Defendant and Third-Party Plaintiff-Appellant. Lumbermen’s Mutual Casualty Company, Third-Party Defendant-Respondent.
    Argued April 25, 1995;
    decided June 8, 1995

      POINTS OF COUNSEL

      Volgenau & Basse, Buffalo (Diane F. Bosse and Randall H. Endo of counsel), for defendant and third-party plaintiff-appellant.

      Hurwitz & Fine, P. C., Buffalo (Dan D. Kohane and Paula M. Eade Newcomb of counsel), for third-party defendant-respondent.
   OPINION OF THE COURT

Levine, J.

On January 12, 1986, an ambulance was called to assist plaintiff’s decedent, John Michaels, who was having trouble breathing. After he was attended to, he was placed inside the ambulance. Unfortunately, the ambulance could not be restarted. A new ambulance was summoned and arrived on the scene minutes later. Decedent was then transported by the second ambulance to a hospital where he died about 20 minutes later.

Decedent’s estate brought suit alleging, among other things, that the failure of the first ambulance to start was due to negligent maintenance of the vehicle and that the delay caused or contributed to the death. Memorial, the ambulance company, holds a "business auto policy” which provides that the insurer will "pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto” (emphasis added). The insurance policy also provides that the insurance carrier has the right and duty to defend any suit asking for these damages.

The insurer was given timely notice of the claim against its insured, but disclaimed coverage and a duty to defend on the ground that the loss was not "caused by an accident” as the term was used in the policy. Memorial then commenced a third-party action against the insurance company alleging that the policy required it to defend and indemnify the insured. The insurer brought a motion for summary judgment seeking a declaration that it did not have a duty to defend or indemnify the insured. Memorial, the insured, cross-moved for summary judgment.

Supreme Court found for Memorial, reasoning that the term "accident” as used in the policy should not be read to mean "collision”, but in its broader sense of unintended consequence. The Appellate Division reversed and granted the insurer’s motion on the ground that delay caused by mechanical failure was not an unusual, unexpected or unforeseen event (201 AD2d 117). Two Justices dissented holding that a mechanical breakdown of an ambulance constituted an accident. Memorial appealed to this Court as of right, and we now affirm.

When interpreting the multifaceted term "accident” in an insurance policy, "we must construe the word 'accident’ as would the ordinary [person] on the street or ordinary person when he [or she] purchases and pays for insurance” (Johnson Corp. v Indemnity Ins. Co., 7 NY2d 222, 227 [emphasis added]), or, in a case such as this one involving a policy issued to a business, by examining the "reasonable expectation and purpose of the ordinary business [person] when making an ordinary business contract” (Bird v St. Paul Fire & Mar. Ins. Co., 224 NY 47, 51). The term "is not given a narrow, technical definition by the law. It is construed, rather, in accordance with its understanding by the average [person] * * * who, of course, relates it to the factual context in which it is used” (Miller v Continental Ins. Co., 40 NY2d 675, 676 [emphasis supplied]).

Thus in Miller, we held that a death caused by an apparently inadvertent heroin overdose was properly found to be the result of "an accident” as the term was used in a life insurance policy because the death was " 'an unexpected, unusual, and unforeseen’ ” casualty (id., at 677). However, Miller does not, as plaintiff would have it, stand for the proposition that any unexpected event is an accident. In other cases, we have focused on whether the casualty, although unexpected, was "catastrophic or extraordinary” (see, Matter of Connelly v Hunt Furniture Co., 240 NY 83, 86 [Cardozo, J.] [accident under the workers’ compensation statute]). Thus we distinguished cases where a disease is caught when germs are "absorbed into the system through normal channels of entry” from those caught "when the channel of infection is abnormal or traumatic” with the latter fairly construed as "something catastrophic or extraordinary * * * an accident” (id., at 85-86; see also, Matter of Lerner v Rump Bros., 241 NY 153, 155).

In this case, we must determine if mechanical failure and consequent delay is an accident within the meaning of the term as used in the policy. We conclude it is not.

In our view, the average person purchasing automobile insurance for a business vehicle for injuries or property damage caused by an accident would not presume that damages arising from mechanical failure and delay would be insured against. The term "accident” as used in automobile insurance policies refers to an event involving some trauma, violence, or casualty, or application of external force in which the auto is involved. Such a construction is consistent with the way the courts have construed the term "accident” in other contexts (see, e.g., Jackson v Employers’ Liab. Assur. Corp., 139 Misc 686, 689, affd 234 App Div 893, affd 259 NY 559 [in a general liability policy "(t)he word 'accident’ * * * conveys a sudden and instant happening * * * assignable to 'something catastrophic or extraordinary’ ”]; Matter of Connelly v Hunt Furniture Co., supra [workers’ compensation]; Matter of Lerner v Rump Bros., supra [same]; see also, 10 Couch, Insurance § 41:10, at 15 [2d ed] [as used in health and accident insurance " 'in the term "accident” some violence, casualty, or vis major is necessarily involved’ ”]). It is also consistent with the interpretation of the word accident in automobile insurance policies by other State courts (see, Employers’ Commercial Union Ins. Co. v Danches, 311 So 2d 758 [Fla Dist Ct App], cert denied 327 So 2d 32 [Fla]; Macon-Bibb County Hosp. Auth. v Continental Ins. Co., 196 Ga App 399, 396 SE2d 50, cert denied 1990 Ga LEXIS 544). This customary concept of accident, as defined in this policy, was enlarged in only one respect, i.e., "accident” was defined to expressly include "continuous or repeated exposure to the same conditions resulting in bodily injury or property damage.”

The mechanical failure and resulting delay of the ambulance in this case did not amount to an accident under either the customary definition of accident or the policy’s expanded definition. Specifically, there was none of the extraordinary factors that distinguish accidents from other merely unexpected events, i.e., trauma, violence, casualty, suddenness, or an application of external force in which the auto was involved, and there was no continuous or repeated exposure.

We recognize, of course, that to the decedent the timing of the breakdown was indeed unexpected, unforeseen and unfortunate. However, the determination whether it was an accident should not be made by reference to the injured victim. "Because an injury is always fortuitous to a non-consenting victim, if its accidental character were to be judged in relation to such a victim, virtually all instances of compensable injury would also be instances of accident, and nothing would be accomplished by determining coverage in relation to occurrence rather than injury alone. Thus the general rule for applying 'accident’ * * * causation coverage looks to the insured defendant to determine whether the causal event was fortuitous or not” (Vermont Mut. Ins. Co. v Malcolm, 128 NH 521, 523, 517 A2d 800, 802 [Sauter, J.]).

In sum, the stalling and resulting delay of the covered vehicle was merely a series of routine, foreseeable, yet unfortunate events. However, it was not an "accident” within the meaning of the business auto policy. Consequently, there is no coverage required by the policy, and therefore, no duty to defend.

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

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

Order affirmed, with costs.


author: Ciparick, J.

text:
    [651 NE2d 1275, 628 NYS2d 256]
    In the Matter of Leonard Spodek, Appellant, v New York State Commissioner of Taxation and Finance et al., Respondents.
    Argued May 2, 1995;

    decided June 8, 1995

      POINTS OF COUNSEL

      Herrick, Feinstein, New York City (Darlene Fairman and Harvey S. Feuerstein of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Patrick Barnett-Mulligan, Victoria A. Graffeo and Peter H. Schiff of counsel), for New York State Commissioner of Taxation and Finance, respondent.
   OPINION OF THE COURT

Ciparick, J.

The issue presented is whether the CPLR’s commencement-by-filing provisions apply to a Tax Law § 2016 proceeding originating in the Appellate Division. We conclude that they do and that the Statute of Limitations was tolled in this case when the notice of petition and petition were filed with the Clerk of the Appellate Division. Nonetheless, we affirm the judgment of the Appellate Division on the ground that petitioner failed to effect proper service on the respondents in this proceeding, an issue that was never reached by the Appellate Division, since the petition was dismissed as time-barred.

In August 1988, the Department of Taxation and Finance (Department) assessed petitioner $58,877 in transfer gains tax based on his transfer of two apartment buildings. Petitioner paid the tax and applied for a refund. After a conciliation conference resulted in a partial refund, petitioner received a hearing on his claim for a full refund. An Administrative Law Judge (AU) ruled in petitioner’s favor, but the Tax Appeals Tribunal modified the ALJ’s determination and denied the refund request by decision dated November 19, 1992.

On March 19, 1993, the day the four-month Statute of Limitations expired, petitioner filed with the Clerk of the Appellate Division a notice of petition and petition for review of the determination of the Tax Appeals Tribunal. Apart from filing, however, there was a total failure of service, as it is undisputed that petitioner did no more than mail copies of the notice of petition and petition to the Law Bureau of the Department of Taxation and Finance, the Tax Appeals Tribunal, and the Attorney-General’s office. Petitioner failed completely to comply with the rules governing personal service upon the State respondents or the Attorney-General (see, CPLR 307, 312-a, 403 [c]; 7804 [c]), and failed to further meet the requirements of CPLR 306-b providing that he file proof of service with the clerk’s office within 15 days after the expiration of the four-month period.

Respondent Commissioner moved to dismiss the proceeding as time-barred. The Appellate Division initially denied the motion without prejudice to the issue "being raised upon argument of the proceeding.” A hearing was held arid thereafter the Court dismissed the petition for failure to serve respondents before the expiration of the Statute of Limitations. The Court rejected petitioner’s argument that the proceeding was timely commenced when the notice of petition was filed with the Court on the day the Statute of Limitations expired. The Appellate Division concluded that the filing system only applies to actions or special proceedings commenced in Supreme Court, County Court and Surrogate’s Court, since the statutes implementing the filing system refer to procedures (filing with the County Clerk, obtaining an index number and paying the fee required by CPLR 8018 [a]) that have no relevance to proceedings with original jurisdiction in the Appellate Division.

Prior to July 1, 1992, actions and special proceedings were commenced in New York by service of process. In 1992, the Legislature amended CPLR 304 and changed the method for commencing actions and proceedings to a "commencement by filing” system (see, L 1992, ch 216). As a result, service of process on the defendant no longer marks interposition of a claim for Statute of Limitations purposes. Instead, it is the "filing [of] a notice of petition or order to show cause and a petition with the clerk of the court in the county in which the special proceeding is brought” which constitutes the crucial date for determining whether the Statute of Limitations is satisfied (see, CPLR 304; see also, CPLR 203 [c] [1]; 105 [b]). However, service continues to mark commencement in the lower courts, i.e., New York City Civil Court, District, City, Town, and Village Courts. Petitioner argues that the commencement-by-filing amendments were intended to apply to all actions and proceedings, except those specifically excluded by the Legislature, and the failure to address proceedings originating in the Appellate Division was simply a legislative oversight. Respondents point to CPLR 304 and counter that the procedures described in that rule have no relevance with regard to proceedings originating in the Appellate Division, whose clerks do not assign index numbers or collect filing fees. Consequently, they argue, petitioner is relegated to service of the initiatory papers as the means of tolling the Statute of Limitations.

We conclude that the filing of the notice of petition and petition with the Clerk of the Appellate Division was sufficient to toll the Statute of Limitations in this case. Under Tax Law §2016, a proceeding seeking review of a decision of the Tax Appeals Tribunal must be commenced within four months of the time the decision is served on the petitioner by the tribunal. Section 2016 provides that the proceeding should be commenced in "the appellate division of the supreme court, third department,” "in the manner provided by article seventy-eight of the civil practice law and rules” (Tax Law § 2016). Thus, section 2016 does not mandate or suggest that commencement by service is still required. Rather, the statute provides simply that proceedings are to be commenced in the same manner as under CPLR article 78. By reason of the 1992 amendments as indicated above, CPLR 304 now provides that the proceeding be commenced by the filing of a notice of petition and a petition with the clerk of the court in the county in which the proceeding is brought.

In our view, petitioner reasonably read Tax Law § 2016 in combination with the CPLR to require the filing of his petition with the Clerk of the Court of the Appellate Division, Third Department — the Clerk of the only Court with jurisdiction over this matter and in which his petition could be heard. It would be unreasonable to expect petitioner to file the petition with Supreme or County Court when those courts do not have original jurisdiction over this matter. Nor are we persuaded that the obvious conclusion upon reading Tax Law § 2016 is that the service of process requirement continues to survive with respect to proceedings challenging determinations of the Tax Appeals Tribunal.

Respondents correctly observe that the new filing provisions specifically refer only to proceedings commenced in Supreme Court and County Court and establish certain procedures and requirements which would tend not to be applicable or practicable in a proceeding originating in the Appellate Division. However, this irregularity alone does not compel the conclusion that the Legislature intended to exclude these proceedings from the scope of CPLR 304. Nowhere in the commencement-by-filing amendments and the corresponding legislative history is there a distinction between special proceedings originating in Supreme or County Court and those originating in the Appellate Division. Moreover, while the Legislature specifically excluded certain lower courts (New York City Civil Court, City Courts, District Courts, and Justice Courts) from the operation of CPLR 304 by contemporaneously amending the statutes regulating the procedure in those courts, it took no such action with regard to proceedings originating in the Appellate Division (see, Alexander, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C304:l, 1995 Pocket Part, at 43).

In 1994, the Legislature amended several statutes to clarify that "filing” rather than "service” commenced the special proceedings regulated by those statutes (see, L 1994, ch 563). Among the statutes amended were Real Property Tax Law § 704 (1) and § 702 (3), which govern proceedings to review real property tax assessments. Trial court decisions held that the CPLR filing requirements were inapplicable to the RPTL provisions because they contained specific references to "service” (see, Matter of Baker, NYLJ, Apr. 21, 1993, at 26, col 1; Matter of McDonald’s Corp. v Assessor for Town of Hancock, 159 Misc 2d 335). The Legislature, in response, removed the "service” references, thus clarifying that filing now marks commencement.

Here, by contrast, no inconsistency exists between Tax Law § 2016 and CPLR 304 (see, CPLR 101 [the CPLR "shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute”]). True, the 1994 "corrective” amendments did not address special proceedings originating in the Appellate Division; however, we find them indicative of the Legislature’s intent that all actions and proceedings not specifically excluded should come under the operation of the 1992 commencement-by-filing act (see, 22 Siegel’s Prac Rev 2 [Aug. 1994] [Legislature hoped that 1994 amendments would correct all statutes containing language that conflicts with the intention to have special proceedings commenced upon filing]).

In attempting to effectuate the Legislature’s intent in this case we note that "when the Legislature by the use of general language has given an act a general application, the failure to specify particular cases which it shall cover does not warrant the court in inferring that the Legislature intended their exclusion”, especially where, as here, the Legislature could easily have made its intention plain and actually did so in excluding New York’s lower courts only (McKinney’s Cons Laws of NY, Book 1, Statutes § 74, at 158). This maxim is especially forceful here in light of the potential for confusion inherent in having two different commencement rules for article 78 proceedings depending on whether they originate in Supreme Court or the Appellate Division (id., at 158-159 ["when the construction claimed is inconvenient, absurd, or leads to other objectionable consequences, the argument is especially sound that, if the Legislature had intended legislation resulting in such consequences, it would have said so in explicit language”]). We note that special proceedings originating in the Appellate Division are few in number (e.g., Education Law § 6510; CPLR 506 [b]; Labor Law § 220 [8]; Public Health Law § 230-c [5]) and may not have been within the Legislature’s contemplation when it converted New York’s civil practice system from a commencement-by-service to commencement-by-filing method.

In this case, petitioner reasonably attempted to satisfy the new filing requirements by filing with the Clerk of the Third Department, the Clerk of the only Court in which the instant proceeding could be heard. The safest practice, unquestionably, would have been to file and serve within the applicable limitations period. However, we are satisfied based on our examination of the intent and history of the commencement-by-filing act that the Legislature did not intend to exclude the instant proceeding from the operation of CPLR 304. Therefore, we hold that the instant proceeding was timely commenced on March 19, 1993 when petitioner filed the notice of petition and petition with the Clerk of the Appellate Division, Third Department.

We note that our construction and interpretation attempts to effectuate the Legislature’s intent in the absence of explicit guidance therefrom. The problem raised by this case may be worthy of legislative attention.

Finally, while we conclude that the proceeding was timely commenced, the petition should nevertheless be dismissed based on petitioner’s failure to properly effect service and acquire personal jurisdiction over respondents.

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

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

Judgment affirmed, with costs.