author: Bellacosa, J.

text:
    [674 NE2d 268, 651 NYS2d 338]
    In the Matter of Jose Baez, Respondent-Appellant, v Mary Jo Bane, as Commissioner of the New York State Department of Social Services, et al., Appellants-Respondents. In the Matter of Cesar Cespedes, Respondent-Appellant, v Mary Jo Bane, as Commissioner of the New York State Department of Social Services, et al., Appellants-Respondents. In the Matter of Dorothy Linton, Respondent-Appellant, v Michael J. Dowling, as Commissioner of the New York State Department of Social Services, et al., Appellants-Respondents. In the Matter of Virgen Ayala, Respondent-Appellant, v Michael J. Dowling, as Commissioner of the New York State Department of Social Services, et al., Appellants-Respondents.
    Argued September 10, 1996;
    decided October 10, 1996

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Alan G. Krams, Kristin M. Helmers and Pamela Beider Dolgow of counsel), for Commissioner of the New York City Department of Social Services, appellant-respondent in the four above-entitled proceedings.

      Dennis C. Vacco, Attorney-General, New York City (Steven M. Connolly, Victoria A. Graffeo and Ronald P. Younkins of counsel), for Commissioner of the New York State Department of Social Services, appellant-respondent in the four above-entitled proceedings.

      Jill Ann Boskey, Wayne G. Hawley, New York City, Susan Bondurant, Arnold Cohen, Long Island City, Cherie Howard and Cherie Gaines, Brooklyn, for respondents-appellants in the four above-entitled proceedings.
   OPINION OF THE COURT

Bellacosa, J.

The common question in these appeals is whether appellants, New York City and New York State Department of Social Services, forfeit all reimbursement with respect to Supplemental Security Income (SSI) retroactive benefit checks because of administrative delays of one to seven days, beyond the statutorily prescribed 10-day period, in forwarding excess benefit refunds to recipients. In the four cases before us, the Appellate Division held that the City and State lost reimbursement as to the entire sums of interim home relief benefits previously paid by them to the petitioners, because the excess amounts, ultimately transmitted by the Federal Government, were not refunded within the statutorily prescribed 10 working days (42 USC § 1383 [g] [4]). Petitioners, as cross appellants, also sought counsel fees, which the Appellate Division denied.

The Appellate Division granted cross applications for leave to appeal, and we now modify to dismiss the petitions in each case. We hold that forfeiture is not an authorized or appropriate remedy and, therefore, need not reach the counsel fee question.

Matter of Baez

Petitioner applied for Federal Supplemental Security Income disability benefits in September 1980. That application was denied in October 1984. He reapplied in October 1988, and in September 1989, the Social Security Administration issued a determination that he was disabled as of June 10, 1986, and was entitled to SSI benefits from that date. Baez appealed the Administration’s determination on the ground that his disability had begun prior to the date determined.

While his applications for SSI benefits were pending, Baez applied for and received interim home relief benefits from the City. As a condition to receiving the interim payments, he was required to complete a written authorization allowing the Social Security Administration to remit SSI benefits later determined to be due to him to the New York City Department of Social Services (see, Social Services Law § 158 [a]). The Social Security Administration eventually sent the City Department of Social Services two checks constituting the initial retroactive SSI payment to Baez. The City received the first check in the amount of $8,953.65, on December 12, 1989, and six working days later notified Baez that it was retaining the entire amount of the check as partial reimbursement for the $11,379.67 of interim assistance it had paid to him during the period from June 10, 1986, through December 29, 1989. The City received the second check on December 20, 1989, in the amount of $8,827.19, for the balance of initial retroactive SSI benefits due Baez. Eleven working days later on January 8, 1990, the City notified Baez that it was also retaining the entire proceeds of the second check as reimbursement for previously paid interim home relief. On February 7, 1990, the Department corrected its calculations and sent Baez a check for $6,407.90 as excess proceeds from the second check, along with notices of explanation. Only these payments are in issue, although others were challenged below and are no longer relevant under this Court’s decision in Matter of Rodriguez v Perales (86 NY2d 361).

By letter dated July 1, 1992, Baez requested a fair hearing before the New York State Department of Social Services concerning the recovery of amounts in the SSI checks sent to the City in 1989 and early 1990 — the only ones still at issue. The State rejected Baez’s argument that the City lost the opportunity to seek any reimbursement for amounts of interim assistance it had paid because of its failure to remit to him the balance of SSI benefits in excess of the reimbursable amount within 10 working days (18 NYCRR 353.2 [c] [4]). Baez commenced this CPLR article 78 proceeding seeking to annul the State’s determination. Supreme Court granted the petition, annulled the determination and ordered the City to return all but the initial retroactive SSI benefit check (159 Mise 2d 838).

Matter of Cespedes

Petitioner applied for SSI disability benefits in May 1988, and his application was approved by the Social Security Administration in March 1992, with benefits payable retroactive to May 1988. On May 15, 1992, the City received a check for $6,399.03 in retroactive SSI benefits and on May 19, 1992, the City received a second check for $8,076.82 constituting the balance of retroactive SSI benefits due Cespedes. On June 9, 1992, 17 working days after receiving the first check and 13 working days after receiving the second check, the City gave notice to Cespedes that the entire balance of the first check and all but $390.85 of the second check would be retained as reimbursement for $14,085 in interim assistance the City had paid him during the period September 1988 to May 1992. The State Department of Social Services essentially ruled in favor of the City on Cespedes’ fair hearing application. Cespedes initiated this article 78 proceeding. The trial court held that the City was required to refund the entire amount of retroactively refunded interim relief which it had held more than 10 working days.

Matter of Linton

Petitioner applied for SSI disability benefits in December 1990, and her application was approved in September 1992, with benefits payable retroactive to the date of her application. On November 10, 1992, the City received a SSI benefits check on her behalf for $508 and on November 30, 1992, 12 working days later, gave notice that it was retaining the entire amount of the check as partial reimbursement for the $6,291.25 in interim home relief it had paid her. On December 15,1992, the City received a second SSI benefit check for $9,713.49 and on December 31, 1992, 11 working days later, it notified Linton that it deducted $5,783.25 from this check and refunded to her the excess balance of $3,930.24.

Linton requested a fair hearing in January 1993. She challenged the City’s right to any reimbursement from the first check which she claimed was not subject to levy because it was not a retroactive payment. She also asserted that the City did not have any right to reimburse itself from the proceeds of the second check because it did not comply with the applicable 10-day limit. The State determined that the City was not required to turn over the entire amount of SSI benefits received just because of the slight delay in payment beyond the prescribed 10 days.

Linton initiated this article 78 proceeding seeking annulment of the State’s determination and a refund of all proceeds the City withheld from the retroactive reimbursement on the ground that its delay beyond the statutory period barred the retention of any amount of previously paid interim assistance. Supreme Court denied the petition holding that she was not entitled to a duplicative recovery based solely on the City’s slight delay in processing the reimbursement.

Matter of Ayala

Petitioner received interim home relief benefits from July 1989 through June 1992, during which time her application for SSI disability benefits was pending. Following approval of her application for SSI benefits retroactive to July 1989, the Social Security Administration forwarded two SSI benefit checks to the City. The first check, for $6,977, was received on September 22, 1992, and the second check, for $9,720.55, representing the balance of retroactive SSI benefits, was received on September 28, 1992.

On October 15, 1992, 17 working days after receiving the first check and 13 working days after receiving the second check, the City notified Ayala that the home relief payments advanced to her during the pendency of her application for Federal benefits totaled $11,601.78, and that she was entitled to a refund of $5,095.77 as an excess payment from the two SSI checks. Ayala requested a fair hearing seeking a refund of the entire SSI reimbursement benefits retained by the City due to its failure to refund the excess benefits within 10 working days. The State rejected the argument. Ayala commenced this article 78 proceeding seeking to annul the State’s determination. Supreme Court dismissed the petition holding that there was no statutory authorization for forfeiting the City’s right to reimbursement based merely on its failure to make the partial refund within 10 working days.

I.

Following the trial court determinations in these four matters, a consolidated appeal was heard and decided by the Appellate Division (220 AD2d 166). Relying heavily on the Second Circuit Court of Appeals decision in Rivers v Schweiker (692 F2d 871 [1982], cert denied sub nom. Rivers v Blum, 460 US 1088), the Appellate Division held that the City lost reimbursement to any sums when it failed to comply with the 10-working-day limitation in 42 USC § 1383 (g) (4) (220 AD2d, at 173). It also denied the petitioners’ applications for attorney’s fees. The Appellate Division noted that although the Second Circuit did not order forfeiture as a remedy, the City’s continuing failure to comply prospectively with the Rivers limited decree during the ensuing 10-year period demonstrated a bureaucratic lapse justifying the forfeiture remedy (220 AD2d, at 172-173).

With respective certified questions, the Appellate Division granted motions for leave to appeal by the City and State as to the grant of the petitions with the forfeiture remedy, and also granted the petitioners’ motions to cross-appeal with respect to the denial of attorney’s fees. We now modify the order of the Appellate Division by dismissing the petitions in all four cases, thus obviating any need to address the attorney’s fees issue.

II.

The City and State concede that they are statutorily required to remit excess refundable SSI benefit payments to SSI recipients within 10 working days. They assert, however, that their failure to do so does not legally effect a forfeiture of the right to appropriate reimbursement for interim home relief payments, actually and already paid to recipients.

The SSI program provides that where a State grants "interim assistance” to applicants awaiting SSI benefits rulings who are later determined to be entitled retroactively to such benefits, the State may be reimbursed from the eventual Federal payment of SSI benefits for the amounts of State-City paid interim assistance during the application period (42 USC § 1383 [g]). To accomplish this protection against what would otherwise constitute double payments, the State must enter into an agreement with the Social Security Administration. The arrangement allows the Social Security Administration to make payments to the State or its political subdivision (New York City in these cases) as reimbursement for the paid interim assistance. When the Federal check is greater than the amount of State interim assistance paid to the recipient, "the State (or political subdivision) shall pay to the individual the balance of such payment in excess of the reimbursable amount as expeditiously as possible, but in any event within ten working days or a shorter period specified in the agreement” (42 USC § 1383 [g] [4] [A] [emphasis added]; see, 20 CFR 416.1910 [b] [1]). The initial SSI benefit payment may be sent directly to the State or local agency upon written authorization from the beneficiary (42 USC § 1383 [g] [1]).

Social Services Law § 211 (5) authorizes the New York State Department of Social Services to enter into agreements with the Federal Government, and such agreements were in effect in these cases. As a condition of eligibility for interim home relief benefits from the State, recipients are required to sign an authorization allowing the Federal agency to pay initial SSI payments directly to the local social services district and allowing the district to recoup any reimbursable interim home relief benefits previously paid to the recipient (Social Services Law § 158 [a]). The petitioners in these cases completed this authorization and the Social Security Administration forwarded the initial SSI payments to the City as previously described.

The petitioners assert that the clear words and policy of this temporal feature of the statute dictate that the City’s failure to refund the excess SSI benefits within 10 working days causes a forfeiture of any reimbursement of any portion of these checks. We conclude that they misread the purport and effect of this aspect of the statute.

The SSI Interim Assistance Reimbursement program was enacted by Congress in 1974 (42 USC § 1383 [g], added by Pub L 93-368 § 5) in response to the Supreme Court’s decision in Philpott v Essex County Welfare Bd. (409 US 413). It construed the Social Security Act’s antiattachment provision (42 USC § 407 [a]; see, 42 USC § 1383 [d] [1]) as barring States from recouping payments out of retroactive SSI payments. The purpose of the 1974 amendment was to allow the Federal Government to reimburse States for emergency assistance provided to SSI recipients during the frequently extended Federal application review process (see, 120 Cong Rec 20,968 [1974] [statement by Senator Taft]). In commenting upon legislation, two years later, to make the reimbursement program permanent (Pub L 94-365), the Congressional Budget office noted that "[i]n the absence of this reimbursement provision, no State would have the incentive to make interim payments” (HR Rep No. 1296, 94th Cong, 2d Sess 3-5, reprinted in 1976 US Code Cong & Admin News 1726, 1729-1730).

This legislative history demonstrates that the plain thrust of the Interim Assistance Reimbursement program was to induce States to provide temporary assistance to SSI recipients while their benefit applications were being reviewed by Federal administrators (see, Moore v Colautti, 483 F Supp 357, 363, n 6 [ED Pa 1979], affd 633 F2d 210). Petitioners concede the lack of any express statutory penalties against State and municipal agencies for failing to timely remit excess reimbursements to SSI beneficiaries within the 10-working-day limitation. Indeed, such a drastic remedy as forfeiture of reimbursement of once-already paid benefits would discourage States from providing interim assistance. Thus, neither the governing statutory language nor the purpose and policy of the statute support petitioners’ argument and the Appellate Division holding. These are highly technical, fiscally nuanced, interlocking programs. Courts should not, in effect, create and promulgate such a remedy for bureaucratic lapses concerning this kind of statutory timing mechanism, when the legislation itself has specified no sanction and certainly none of this breadth and consequence (see, United States v James Daniel Good Real Prop., 510 US 43, 63-64).

III.

Petitioners also argue that after the statutory 10-day period has passed, the full SSI retroactive benefit checks "vest” in them. They build this argument on their perception of the holding in Rivers v Schweiker (692 F2d 871, supra). They urge that Rivers stands for the proposition that forfeiture against municipal agents can be an appropriate penalty at this point in the history and administration of this statute and its long-contested entanglements. This argument finds no support in Rivers and takes its holding and meaning too far beyond sustainable statutory and juridical limits.

In Rivers, members of a class of SSI beneficiaries who had applied for and received interim assistance benefits from the State, challenged, among other practices, the failure of the City and State to make timely refunds of excess SSI benefits over those used to account for dollar-to-dollar reimbursement (Rivers v Schweiker, 523 F Supp 783, 785 [SD NY 1981], affd 692 F2d 871, cert denied sub nom. Rivers v Blum, 460 US 1088, supra). The District Court found that the statute was clear and ordered the City and State to process refund checks within the statutory period (Rivers v Schweiker, supra, 523 F Supp, at 788-789). In reaching its conclusion, the court noted that the record showed that in December 1979, the average processing time for retroactive SSI checks was over 16 days and that only a little over 1% of checks were processed in a timely fashion (id., at 788).

Contrary to petitioners’ assertion in these four appeals, nothing in the District Court holding in Rivers suggests that 42 USC § 1383 (g) (4) was intended to create a "vested right” in SSI beneficiaries to the entire proceeds of retroactive SSI benefits checks upon the mere passage of 10 working days, following their receipt by the City, without payment of the excess nonreimbursable amounts. The very fact that the court in Rivers did not deprive the City of reimbursement, as it would have been required to do if it had found that title to the benefits had legally transferred to and vested in the recipients, serves to defeat petitioners’ legal reasoning in this argument. Pointedly, the court instead limited its decree to requiring the City to fulfill its obligation to timely process SSI checks (Rivers v Schweiker, supra, 523 F Supp, at 789). On appeal, the Second Circuit also rejected the vesting argument now proffered (Rivers v Schweiker, 692 F2d 871, 874, supra).

Petitioners lastly urge that the Second Circuit’s affirmance in Rivers (692 F2d 871, supra) impliedly acknowledges the existence and propriety of the forfeiture remedy. We find no persuasive support or basis for this remedial leap. The court in its decision did not hold or imply that forfeiture was an available remedy under 42 USC § 1383 (g), but rather stated that the plaintiffs in that case had an available remedy under the Federal Rules of Civil Procedure if the City and State are found to be deficient in complying with the District Court order (Rivers v Schweiker, supra, 692 F2d, at 874). The court noted that there was a "reasonable basis” for the limited injunctive relief granted by the District Court and, therefore, the Federal trial court decision was not disturbed (id., at 874).

Our decision today that the forfeiture remedy granted by the Appellate Division in these cases is unavailable does not mean that petitioners and similarly situated, entitled and aggrieved recipients of public aid are without legal recourse should circumstances not now before us develop and warrant. As the City and State concede, the 10-day time prescription in 42 USC § 1383 (g) (4) is mandatory and should be satisfied. We note also that the City has represented, without contradiction from petitioners’ counsel, that it has been meeting its obligation to refund excess SSI retroactive benefit amounts within the 10-day period. That compliance should continue.

Rivers remains cogently instructive and precedentially viable. There, the record evidence demonstrated that there was a consistent failure on the part of the City to make refunds to SSI beneficiaries within the 10-day period. Based on that evidence, the court was able to find that the City had failed systemically and egregiously to comply with the statute. It fashioned a remedy which took into account the interests of all class members, while still giving effect to the statutory purpose (Rivers v Schweiker, 523 F Supp 783, 788-789, supra).

The four petitioners here, on the other hand and in effect, seek windfall damages in addition to entitlement benefits. Such extraordinary relief was not granted in Rivers and we are satisfied that it is not warranted on these records. Since the other branches of government have not enacted and directed such a remedy, neither should the courts within this statutory regime and in these circumstances. The finite public purse should not have to suffer such double debits.

Accordingly, the order of the Appellate Division should be modified, without costs, and the petitions dismissed in their entirety and, as so modified, affirmed. The respective certified questions need not be answered as the Appellate Division order is final.

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

Order modified, without costs, by dismissing the petitions in their entirety and, as so modified, affirmed. Certified questions not answered upon the ground that the order appealed from in each proceeding is final and the certified questions are thus unnecessary.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    [674 NE2d 274, 651 NYS2d 344]
    In the Matter of Dennis W. Cahill, Respondent, v Margarita Rosa, as Commissioner of the State Division of Human Rights, Appellant. In the Matter of Lloyd M. Lasser et al., Respondents, v Margarita Rosa, as Commissioner of the State Division of Human Rights, Appellant.
    Argued September 3, 1996;
    decided October 15, 1996

      POINTS OF COUNSEL

      Michael K. Swirsky, New York City, and Lawrence Kunin for appellant in the first above-entitled proceeding.

      Barry V. Pittman, Bay Shore, for respondent in the first above-entitled proceeding.

      Patterson, Belknap, Webb & Tyler LLP, New York City (Robert W. Lehrburger and David M. Levin of counsel), Marc E. Elovitz, Matthew Coles, Ruth E. Harlow, Christopher Dunn and Norman Siegel for Disability Rights Education and Defense Fund, Inc., and others, amici curiae in the first above-entitled proceeding.

      Michael K. Swirsky, New York City, and Lawrence Kunin for appellant in the second above-entitled proceeding.

      Robert Irving Miller, Jr., Poughkeepsie, and James A. Stein-berg for respondents in the second above-entitled proceeding.

      Lance R. Plunkett, Albany, for The Dental Society of the State of New York, amicus curiae in the first and second above-entitled proceedings.
   OPINION OF THE COURT

Simons, J.

In separate proceedings, petitioners, dentists in private practice, have been found guilty of an unlawful discriminatory practice because they failed to treat patients who were known or suspected to be HIV positive. The question presented is whether private dental offices are "placets] of public accommodation” within the definition of the Human Rights Law and subject to its provisions (see, Executive Law § 292 [9]).

In Cahill, complainant alleged that he went to petitioner’s office, without appointment, for treatment of a cracked tooth. He stated that the dental assistant told him the dentist would see him immediately but that when he informed the assistant that he had been exposed to AIDS and was awaiting test results to determine if he was HIV positive, he was told by her that the treatment would have to await the result of the test and that he would be treated only if the test result was negative. The complaint against Dr. Lasser and the Newburgh Dental Group was filed by a patient who had been treated by Dr. Lasser previously but who alleged that he refused to treat her after she became HIV positive.

Following administrative proceedings, the charges against the dentists were sustained and complainants were awarded compensatory damages for mental anguish. The dentists petitioned for judicial review of those determinations pursuant to Executive Law § 298.

The Appellate Division concluded that petitioners’ dental practices could not be considered places of public accommodation within the meaning of the Human Rights Law because "dental offices” are not listed in the statute (Executive Law § 292 [9]), and because the dental practice of each petitioner operated in privately owned premises and by "appointment-only.” Accordingly, it granted the petitions and annulled the determinations of the Commissioner. We granted the Commissioner’s motions for leave to appeal, and now reverse the judgments of the Appellate Division.

The Human Rights Law (Executive Law art 15) provides that it shall be "an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the * * * disability* * * of any person * * * to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof’ (Executive Law § 296 [2] [a] [emphasis added]). The definition of the italicized phrase is set forth in Executive Law § 292 (9), which lists places which are and which are not places of public accommodation. Inasmuch as the statute does not expressly cite "dental offices” within either the included or exempt categories, our task is to determine in which category such facilities fall.

Analysis starts by recognizing that the provisions of the Human Rights Law must be liberally construed to accomplish the purposes of the statute (Executive Law § 300; see, Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401, 411-412, rearg dismissed 60 NY2d 682, 702; City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 428, rearg denied 38 NY2d 856). Those purposes, the Legislature has stated, are to ensure that every person in this State has "an equal opportunity to enjoy a full and productive life”, expressly citing the opportunity to obtain adequate health care as one of the protected benefits of a full and productive life (see, Executive Law § 290 [3]). As a general proposition, therefore, it can be said that the Legislature intended to include health care providers within the Human Rights Law. The narrower question is whether offices of dentists, sometimes colloquially referred to as "private”, are "placets] of public accommodation” within the meaning of the Human Rights Law.

Petitioners assert three reasons why they are not. First, petitioners note that the statute does not expressly include dental offices in its list of public accommodations and they maintain that under those circumstances the doctrine of ex-pressio unius est exclusio alterius requires a finding that the Legislature must have intended such facilities to be excluded from the statutory definition. Next they contend that the phrase "wholesale and retail” modifies the phrase "stores and establishments dealing with goods or services of any kind” and that dental offices are not "wholesale or retail establishments.” Lastly, petitioners assert that the only statutory reference that might incorporate dental offices is "clinics,” but that they are not clinics because they are located in private premises and do not treat walk-in patients.

The prefatory sentence of Executive Law § 292 (9) states that "[t]he term 'place of public accommodation, resort or amusement’ shall include, except as hereinafter specified, all places included in the meaning of such terms as” (emphasis added). This is broad and inclusive language, and the statutory list that follows it is illustrative, not specific (see, Matter of United States Power Squadrons v State Human Rights Appeal Bd., supra, 59 NY2d, at 409). Moreover, because we must determine whether dentists’ offices are "included in the meaning” of the enumerated places, the doctrine of expressio unius est exclusio alterius has no application. Indeed, we are guided in the opposite direction because the Legislature has repeatedly amended the statute to expand its scope. Significantly, the Legislature amended the statute in 1960 to delete a limiting phrase appearing in the earlier version (compare, L 1952, ch 285, § 4, with L 1960, ch 779; see also, L 1962, ch 370; L 1969, ch 388). This history provides a clear indication that the Legislature used the phrase place of public accommodation "in the broad sense of providing conveniences and services to the public” and that it intended that the definition of place of accommodation should be interpreted liberally (Matter of United States Power Squadrons v State Human Rights Appeal Bd., supra, 59 NY2d, at 410).

Petitioners contend, and the Appellate Division agreed, that the phrase "establishments dealing with goods or services of any kind” cannot be construed to include dental offices because that phrase is modified by "wholesale and retail” thus limiting the meaning of "establishments” to something akin to stores (citing Matter of Sattler v City of New York Commn. on Human Rights, 180 AD2d 644, lv denied 81 NY2d 701). The language of the statute is ambiguous at best and the ambiguity is unresolved by legislative history. We have previously noted that the statute generally applies to "establishments” of any kind, implicitly interpreting that phrase as separate from and not modified or limited by the phrase "wholesale and retail” (see, Matter of United States Power Squadrons v State Human Rights Appeal Bd., supra, 59 NY2d, at 411). We adopt that interpretation here.

Dentists’ offices come within this definition of places of public accommodation because they provide services to the public. Though they may be conducted on private premises and by appointment, such places are generally open to all comers. Patients may be drawn to the office by an advertisement or telephone book listing, upon referral by other health care providers, or, as in the case of Dr. Cahill’s patient, by a sign displayed on the premises. Indeed, in the Cahill case, the complainant walked into the office as a new patient without an appointment and originally was accepted for treatment.

Nor are dentists’ offices one of the places of public accommodation exempt from the provisions of the statute. The narrow and restrictive language identifying such places and limiting the exemption stands in contrast to the expansive language identifying those included within the definition of a "place of public accommodation.” Section 292 (9) states that only those places that are "hereinafter specified” are not included in the statutory definition. It then identifies as exempt certain educational institutions and "any institution, club or place of accommodation which is in its nature distinctly private.” Thus, while the Legislature intended that the inclusive list be broadly construed, it specified that exemptions were to be narrowly construed.

Petitioners do not claim that they are among the educational institutions specifically exempted by Executive Law § 292 (9) and to the extent they argue that their practices are places of accommodation that are "distinctly private,” the evidence in the records does not support those arguments.

The hallmark of a "private” place within the meaning of the Human Rights Law is its selectivity or exclusivity, and persons seeking the benefit of the exemption have the burden of establishing that their place of accommodation is "distinctly” private (see, Matter of United States Power Squadrons v State Human Rights Appeal Bd., supra, 59 NY2d, at 412; see also, Matter of Castle Hill Beach Club v Arbury, 2 NY2d 596; see also, Executive Law § 292 [9], as amended by L 1994, ch 262).

Petitioners have failed to sustain the burden of proving they are exempt. Dr. Cahill established only that the premises in which his office was located was privately owned and that patients were generally required to make appointments to be seen; Dr. Lasser offered no relevant evidence. Neither dentist offered evidence that his patient roster was selective or exclusive, or that his practice was not generally held open to the public.

The construction of the statute we adopt advances the statutory policy of protecting the civil rights necessary to enjoy a full and productive life. To hold otherwise would impute to the Legislature approval of legal discrimination by dentists (and other health care providers) on the basis of disability, race, gender, or any other protected classifications. Finding a categorical exemption in this context would signify that the Legislature intended that persons with disabilities should be free from discrimination in such places as ice cream parlors and skating rinks, but that dental and medical providers could lawfully deny health care to them solely on the basis of their disability, a result wholly inconsistent with the purposes of the Human Rights Law.

Examining the question from a broader perspective, Executive Law § 296 (2) (a) deems it unlawful discrimination if a place of public accommodation denies its accommodations to any person on the basis of "race, creed, color, national origin, sex, or disability or marital status.” No case has been drawn to our attention in which a private health care provider claimed that its practice was not a place of public accommodation within the meaning of the Human Rights Law until the advent of HIV and AIDS. Though it may be that a complaint was never before filed against a private health care provider, it is inconceivable that a dentist would challenge the application of the statute if a patient complained that she was denied dental treatment because she was a woman, a member of a distinct racial group, or had been disabled by the amputation of an extremity. Though we recognize that potentially contagious bloodborne conditions may raise specific concerns among the health care community, the statute does not discriminate between types of disabilities — the very essence of the Human Rights Law is that persons within the reach of the statute may not pick and choose those against whom they discriminate.

Nor do we perceive any conflict between our interpretation of the statute and modern dental and medical practice. The National Institute for Occupational Safety and Health in collaboration with the Center for Infectious Diseases and Centers for Disease Control have published "Guidelines for the Prevention of Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Health-Care and Public-Safety Workers,” and all licensed health care workers in this State are required to use "universal precautions” in all situations in which there is potential for the transmission of viruses (see, e.g., 8 NYCRR 29.2 [a] [13] [member of a health care profession engages in unprofessional conduct by failing to use appropriate scientifically accepted infection prevention techniques]). Indeed, Drs. Cahill and Lasser both testified that they and their staffs routinely employed universal precautions. Moreover, both the American Dental Association and the American Medical Association take the position that it is unethical conduct to refuse to treat an HIV positive patient solely because of that diagnosis (see, ADA Principles of Ethics and Code of Professional Conduct, Principle § 1-A, Advisory Opinion [1996]; AMA Code of Medical Ethics, Ethical Opinion 9.131 [1992]). In sum, the health care professions are generally in accord with the Human Rights Law with respect to the issue of treatment of HIV positive patients — such persons may not be denied treatment solely because they have that disability.

Our resolution of these matters does not interfere with a provider’s ability to prescribe treatment or refer patients elsewhere for treatment. They may do so for any legitimate, nondiscriminatory reason, subject only to the condition that if such reasons are suspect they may be tested under the usual rules (see, Matter of North Shore Univ. Hosp. v Rosa, 86 NY2d 413, 419-420; see also, Matter of Laverack & Haines v New York State Div. of Human Rights, 88 NY2d 734 [decided today]; Matter of Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125).

Accordingly, in each case, the judgment of the Appellate Division should be reversed, with costs, and the matter remitted to that Court for consideration of issues raised but not considered on the appeal to that Court.

Levine, J. (dissenting). In our view, the majority’s construction of the key Human Rights Law jurisdictional phrase, "place of public accommodation, resort or amusement” (Executive Law § 292 [9]), to cover, in words or substance, any provision of goods or services to any members of the public (see, majority opn, at 21), empties the phrase of any substantive content and will result in an explosive increase in the jurisdiction of the State Division of Human Rights. There is no justification in either the language or legislative history of the statute or its amendments to support or compel this overly expansive interpretation.

The majority does not dispute that, prior to the 1960 amendment to Executive Law § 292 (9)’s definition of a place of public accommodation, resort or amusement (L 1960, ch 779), a typical private dental practice would not have been considered a place of public accommodation, nor indeed would any other professional private practice as commonly conducted. This was so despite the presence in the statute of a liberal construction provision (Executive Law § 300). Prior to 1960, Executive Law § 292 (9) both defined and at the same time limited the meaning of a place of public accommodation by reference to "all places included in the meaning of such term as it appears in section forty of the civil rights law,” and by providing that "it is intended hereby to limit the procedures and jurisdiction of the commission [against discrimination] to such places” (see, L 1952, ch 285 [adding subdivision (9) of section 292]).

In turn, Civil Rights Law § 40 defines a place of public accommodation "to include” a lengthy enumeration of specific kinds of establishments. Undeniably, that list of categories of such places was the product of a gradual expansion from the original roll of places of public accommodation — innkeepers, common carriers, theaters and other places of public amusement — contained in New York’s first Civil Rights Act of 1873 (see, Gibbs v Arras Bros., 222 NY 332, 335-336, rearg denied 223 NY 559).

Under Civil Rights Law § 40, all categories of public lodging are designated places of public accommodation, as are all places serving food and drink to the public, health care dispensaries, clinics and hospitals, and places providing public entertainment, education, recreation and athletics and sports activities. Most of the same facilities and establishments are now incorporated in the definition of a place of public accommodation in Executive Law § 292 (9). All share common characteristics, having roots in the common-law principle that certain callings, such as that of innkeeper or common carrier, have " 'a quasi public character’ ” (Ness v Pan Am. World Airways, 142 AD2d 233, 238 [quoting de Wolf v Ford, 193 NY 397, 401]), with concomitant privileges and obligations to serve the public nondiscriminately (see, Avins, What is a Place of "Public” Accommodation?, 52 Marq L Rev 1, 4-6). All of the places on the statutory list are types of establishments the general public is without any exception invited to patronize and in which the public has an interest because they are " 'devoted to the general advantage, comfort or benefit’ ” of the citizenry (Ness v Pan Am. World Airways, supra, at 239 [quoting Gibbs v Arras Bros., supra, at 336-337]).

The list of such quasi-public establishments has, of course, been legislatively expanded to reflect changing public attitudes as to what services are " 'essential or directly auxiliary to the prosperity, health, development or happiness of the citizen’ ” (id., at 239 [quoting Gibbs v Arras Bros., supra, at 336-337]). However, the essential character of these places of public accommodation for purposes of civil rights legislation has remained the same. These establishments offer important amenities and hold themselves out as " 'facilities ostensibly open to the general public’ ” (Daniel v Paul, 395 US 298, 307-308 [quoting HR Rep No. 914, 88th Cong, 1st Sess 18 in construing the public accommodation provisions of title II of the Civil Rights Act of 1964 (42 USC § 2000a et seq.)]). Thus, the Kansas Supreme Court included among places of public accommodation "those places of business which are held open to the general public and where members of the general public are invited to come for business purposes” (Seabourn v Coronado Area Counsel, Boy Scouts of Am., 257 Kan 178, 199, 891 P2d 385, 399). (See also, Delany v Central Val. Golf Club, 28 NYS2d 932, affd 263 App Div 710, affd on other grounds 289 NY 577; Sellers v Philip’s Barber Shop, 46 NJ 340, 345, 217 A2d 121, 123 [place of public accommodation is an "establishment which caters to the public or by advertising or other forms of invitation induces patronage generally”]; Lerman and Sanderson, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 NYU Rev L & Soc Change 215, 242-243.)

Although the professional private practice of dentistry, or medicine, is important to the public, traditionally it lacks that openness of access by the general public that has been an essential characteristic of a place of public accommodation. That explains why, among health providers, only dispensaries, clinics and hospitals are included in the statute as places of public accommodation. Thus, when Executive Law § 292 (9) defined a place of public accommodation, resort or amusement by reference to. the list of such places under Civil Rights Law § 40, counsel for the State Commission Against Discrimination opined that the office of "the privately practicing dentist, who may specialize or limit his practice in any way he sees fit,” is not a place of public accommodation, in contrast to a clinic or dispensary "which treats, if not all comers absolutely, at least all comers within an identifiable group” (State Commission Against Discrimination, 1959 Report of Progress, at 73).

The majority here, in broadly construing Executive Law § 292 (9) to include as a place of public accommodation all occupations providing a service availed of by members of the public, has eliminated the "quasi-public character” (de Wolf v Ford, supra) traditionally and up to now generally considered inherent in the concept of a place of public accommodation. One can hardly conceive of any gainful enterprise that does not directly or indirectly serve members of the public. Thus, the majority has essentially written this jurisdictional prerequisite out of the statute and fashioned its own statute of general applicability. "By restricting anti-discrimination laws to places of 'public accommodation,’ the legislatures of the various states obviously did not intend to include all businesses since otherwise the statutes would have said so, as does the law of California now” (Avins, op. cit., 52 Marq L Rev, at 32). The majority has essentially replicated the California statute, without the benefit of a legislative enactment.

The majority purports to find the legislative basis for this drastically expansive substantive change in the commonly understood meaning of a place of public accommodation in the 1960 and 1962 amendments to Executive Law § 292 (9) (L 1960, ch 779; L 1962, ch 370; see, majority opn, at 21). To be sure, as the majority points out, the 1960 amendment had a liberalizing effect. In addition to transferring almost all of the listed types of establishments from Civil Rights Law § 40, it eliminated the restrictive language limiting the jurisdiction of the statute to just those categories of places of public accommodation. Yet, the 1960 amendment left intact the statutory catchall phrase in the definition of a place of public accommodation, resort or amusement: "all places included in the meaning of such terms” (L 1960, ch 779 [emphasis supplied]).

Thus, while the 1960 amendment to Executive Law § 292 (9) removed strict literal limitations as to the places of "public accommodation, resort or amusement” subject to the law’s jurisdiction, the Legislature retained the basic concept of a place of public accommodation — jurisdiction was still limited to those "places” which fell within "the meaning of such terms,” that is, according to the common understanding of a place of public accommodation, resort or amusement. Surely, this does not evince any legislative intent to depart so significantly from the traditional concept of a place of public accommodation.

Likewise, the 1962 amendment to Executive Law § 292 (9) does not support the majority’s extreme substantive change in the meaning of a place of public accommodation. That amendment added eight new specific categories of places of public accommodation, including motels, laundries, airline terminals and travel agencies. It also modified an already existing category, "retail stores and establishments,” by inserting thereafter the phrase "dealing with goods or services of any kind” (L 1962, ch 370). Contrary to the majority’s interpretation, the Legislature by the latter modification did not intend to create a new, free-standing category of place of public accommodation consisting of " 'establishments dealing with goods or services of any kind’ ” (see, majority opn, at 21). First, prior to the 1962 amendment, the category in question undeniably read "retail stores and establishments,” set off by commas, as were each of the other listed types of places of public accommodation (see, L 1960, ch 779; cf., Civil Rights Law § 40). To make any sense at all, "retail” had to modify both "stores” and "establishments.” The 1962 amendment merely added a further modifying phrase to that category. The insertion of "dealing with goods or services of any kind” was made in the same clause, without any additional punctuation, and there is no reason to believe that it was not intended to refer to both antecedents (i.e., retail stores and retail establishments) in that clause (see, Randall v Bailey, 288 NY 280, 287; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 253, 254). Moreover, had the Legislature intended by this amendment to create a separate new category of "establishments dealing with goods and services of any kind” (as the majority suggests), adding in the same amendment such additional specific places of public accommodation as motels, laundries and travel agencies, would have been entirely superfluous, since each would have constituted a service establishment covered by the more general language of the majority’s interpretation of the amendment. The notion that a separate general category of establishments providing all kinds of goods and services was intended, is also contradicted by the legislative history of the 1962 amendment. In the Executive Program Bill memorandum in support of the amendment (Bill Jacket, L 1962, ch 370, at 13), the proposed legislation is described as amending the definition of a place of public accommodation "by expressly including the following within such definition:

"(a) motels;
"(b) those retail stores and establishments which deal with goods or services of any kind” (emphasis supplied).

In short, there is simply no support in the language or legislative history of Executive Law § 292 (9) or its amendments for the majority’s all-encompassing interpretation of a place of public accommodation to include every person who provides a service to any member of the public. Although a place of public accommodation is not a static concept, it takes its essential meaning from well understood, traditional uses of the phrase and from the kinds of establishments specifically named in the statute. To the extent that any vagueness exists in the legislation, the ejusdem generis canon of construction is especially appropriate here in giving the statute certainty and predictability of application (see, People v Shapiro, 50 NY2d 747, 764; People v Illardo, 48 NY2d 408, 416; People v Bell, 306 NY 110, 115; McKinney’s Cons Laws of NY, Book 1, Statutes § 239 [bj). The majority purports to recognize the applicability of ejusdem generis in describing the statutory list of specific categories of places of public accommodation as "illustrative” (majority opn, at 21). As we have shown, tradition and the itemized specific statutory categories point in the same direction, toward only those providers of important benefits and advantages at essentially public places which, "ostensibly,” are completely accessible to the general public (Daniel v Paul, supra, 395 US, at 307-308). A private dental practice, where patients are customarily seen and treated "by appointment only,” does not share that common characteristic of the places of public accommodation listed in the statute. In fact, not one of the statutory categories of public accommodation establishments or facilities is helpfully "illustrative” in this case, as being analogous to a typical private dental practice.

Finally, we are of the view that Matter of United States Power Squadrons v State Human Rights Appeal Bd. (59 NY2d 401), is not controlling and is tellingly distinguishable from the instant cases. Critical to the decision in Power Squadrons was the determination that "the principal function of the organization” was its "oifer[ing] courses in boat handling and safety * * * to approximately 70,000 people a year” (59 NY2d, at 410), and its widespread promotional activities "to solicit public interest and participation in its courses” {id., at 411). Thus, the respondent organization in Power Squadrons offered valuable educational courses for a large clientele, and unquestionably held itself out as an enterprise ostensibly open indiscriminately to the general public (see, Daniel v Paul, supra).

For all of the foregoing reasons, we would affirm the orders of annulment in the instant cases.

Chief Judge Kaye and Judges Smith and Ciparick concur with Judge Simons; Judge Levine dissents and votes to affirm in a separate opinion in which Judges Titone and Bellacosa concur.

In each case: Judgment reversed, etc.

      . Executive Law § 292 (9) states: "The term 'place of public accommodation, resort or amusement’ shall include, except as hereinafter specified, all places included in the meaning of such terms as: inns, taverns, road houses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants, or eating houses, or any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectionaries, soda fountains and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises; wholesale and retail stores and establishments dealing with goods or services of any kind, dispensaries, clinics, hospitals, bath-houses, swimming pools, laundries and all other cleaning establishments, barber shops, beauty parlors, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors; garages, all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls and public elevators of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants. Such term shall not include public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of the regents of the state of New York; any such public library, kindergarten, primary and secondary school, academy, college, university, professional school, extension course or other education facility, supported in whole or in part by public funds or by contributions solicited from the general public; or any institution, club or place of accommodation which is in its nature distinctly private.” (Emphasis added.)
      In 1994, the Legislature amended this subdivision, narrowing and further defining the organizations that may be considered "distinctly private” and imposing on those who seek that exemption the burden of proving their distinctly private nature (L 1994, ch 262, § 1).

      . The dissenter refers to an informal opinion of counsel contained in the 1959 Report of Progress of the Commission Against Discrimination (at 73) which stated that the office of a " 'privately practicing dentist, who may specialize or limit his practice in any way he sees fit’ ” is not a place of public accommodation (see, dissenting opn, at 27). The opinion interpreted a statute which has since been amended to broadly expand its applicability and it relied heavily on the distinctions between a profession and a business, a distinction less clear today than it was 40 years ago. Significantly, too, petitioners here do not claim that their practices were limited in any way.

      . In light of our conclusion that dentists’ offices are generally places of public accommodation because they are "included in the meaning of * * * establishments dealing with goods or services of any kind” we need not consider whether they are included in the meaning of "clinics”.

      . At the least, the majority’s holding clearly would make all of the practitioners of all of the professions places of public accommodation. These would include some 570,000 professionals licensed by the State Education Department (1994-1995 Ann Report of Office of Professions, State Educ Dept, at 18), plus some 164,000 attorneys registered to practice in the State (State of New York, Office of Court Administration).

      . California Civil Code § 51 (providing for "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever” [emphasis supplied]).

      . In 1969, the Legislature amended this category in the definition to include "wholesale”, as well as retail, stores and establishments (L 1969, ch 388).


author: Levine, J.

text:
    [674 NE2d 282, 651 NYS2d 352]
    Kenneth H. Guice, Respondent, v Charles Schwab & Co., Inc., Appellant. Frank J. Evangelist, Jr., Respondent, v Fidelity Brokerage Services, Inc., Appellant.
    Argued September 11, 1996;
    decided October 17, 1996

      POINTS OF COUNSEL

      Morgan, Lewis & Bockius LLP\ New York City (Catherine A. Ludden, John E. Failla, Thomas R. Stritter and Elizabeth A. Cronin of counsel), for appellant in the first above-entitled action.

      Milberg Weiss Bershad Hynes & Lerach LLP, New York City (Richard M. Meyer and Stephen H. Schwartz of counsel), for respondent in the first above-entitled action.

      O’Melveny & Myers LLP (Donald T. Bliss, Bruce A. Hiler, Joseph C. Lombard, James H. Bolin, Jr., and Brian P. Brooks, of the District of Columbia Bar, admitted pro hac vice, of counsel), and Stuart J. Kaswell, of the District of Columbia Bar, admitted pro hac vice, for Securities Industry Association, amicus curiae in the first above-entitled action.

      Brown & Wood, New York City (A. Robert Pietrzak and Robert C. Reuland of counsel), for appellant in the second above-entitled action.

      Milberg Weiss Bershad Hynes & Lerach, New York City (Richard M. Meyer and Stephen H. Schwartz of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Levine, J.

The plaintiffs in these appeals are former retail customers of defendants Charles Schwab & Co., Inc. (Schwab) and Fidelity Brokerage Services, Inc. (Fidelity). Schwab and Fidelity are "discount” stock brokerage houses, operating nationwide, who charge reduced commissions for effecting securities transactions for their clientele and hold themselves out as offering quicker executions of orders on behalf of customers who have already decided upon what securities to buy or sell. Plaintiffs have brought these class actions on behalf of all similarly situated (unrestricted by geographical location) clients of the defendants who used their brokerage services during the 1990-1994 putative class period.

In their respective complaints, which are identical in all pertinent respects, plaintiffs seek a return of commissions, compensatory and punitive damages, an accounting and injunctive relief based on common-law theories of breach of fiduciary duty and conversion arising out of the agent/principal relationships between defendants and the putative class members, and upon alleged statutory violations.

All of the plaintiffs’ causes of action arise out of defendants’ receipt of what is known in the securities industry as "order flow payments.” The practice of order flow payment consists of remuneration in the form of monetary or other benefits given to retail securities broker-dealers for routing customers’ orders for execution to wholesale dealers or other market makers in the subject securities. Paying for order flow originated many years ago in the over-the-counter (OTC) market, when regional broker-dealers were paid a fee by wholesale market makers in the OTC security bought or sold, for directing orders to them for execution. With the advent of computer technological advances capable of providing an entirely automated market system independent of the floor of any stock exchange (such as the National Association of Securities Dealers Automated Quotation System), and automated trading systems permitting accelerated execution of orders by regional exchange specialists, OTC market makers and member firms of the regional stock exchanges could compete for orders in listed stocks with the national New York and American Stock Exchanges. Thus, routing orders in listed stocks to OTC market makers and regional exchange specialists has more recently become a major source of order flow payments to retail broker-dealers.

Plaintiffs’ complaints allege that the defendants’ acceptance of order flow payments breached the fiduciary relationship between them and their customers in the plaintiff member classes under common-law agency principles. Plaintiffs also allege that the acceptance of order flow payments itself is illegal and actionable because it violates a broker’s duty to obtain the "best execution” (i.e., execute the transaction under the most favorable possible terms) of its customers’ orders. They also allege illegality of the acceptance of order flow payments as a form of commercial bribery (citing Penal Law § 180.05) and a violation of State securities law (the Martin Act) (citing General Business Law § 352-c).

Schwab and Fidelity moved to dismiss the complaints on grounds, inter alia, that enforcing plaintiffs’ State common-law and statutory causes of action would violate the United States Constitution’s Commerce Clause (US Const, art I, § 8) and Supremacy Clause {id., art VI, cl [2]), and interfere with the primary jurisdiction of the Securities and Exchange Commission (SEC). In each case, the complaint was dismissed by Supreme Court under the Supremacy Clause, on the ground that plaintiffs’ causes of action were preempted by the Securities Exchange Act of 1934, as amended, and the SEC regulations promulgated thereunder.

The Appellate Division modified in each case (Guice v Schwab & Co., 214 AD2d 53; Evangelist v Fidelity Brokerage Servs., 224 AD2d 211). The Court in Guice noted that plaintiff "as limited by his brief, does not seek to bar totally the practice of payments for order flow, 'except where, as here, "full and frank disclosure” has not been made’ ” (214 AD2d, at 55). The Court concluded that, upon that basis, plaintiff Guice’s causes of action were not preempted by Federal law and that the primary jurisdiction doctrine was not a bar. Accordingly, the Court reinstated all of plaintiff’s causes of action (except that based upon the Martin Act) and remitted to Supreme Court to determine the remaining grounds for defendant’s motion to dismiss. The subsequent decision of the Appellate Division in Evangelist largely followed the reasoning of the Court in Guice. The Appellate Division granted Schwab and Fidelity leave to appeal in each case upon the certified question of whether its order of modification was properly made.

We reverse, concluding that the plaintiffs’ remaining common-law causes of action, even as limited by plaintiffs as being based solely on inadequate or absent disclosure of receipt of order flow payments, are preempted by the 1975 amendments to the Securities Exchange Act and implementing SEC regulations.

The Supremacy Clause of the United States Constitution, directing that Federal laws "shall be the supreme Law of the Land * * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” (US Const, art VI, cl [2]), thereby vests in Congress the power to supersede not only State statutory or regulatory law but common law as well (see, Freightliner Corp. v Myrick, 514 US 280, 286-287; International Paper Co. v Ouellette, 479 US 481, 496). The preemption question is ultimately one of congressional intent (see, Barnett Bank of Marion County v Nelson, 517 US —, —, 116 S Ct 1103, 1107; California Fed. Sav. & Loan Assn. v Guerra, 479 US 272, 280). As recapitulated most recently in Barnett Bank (supra, 517 US, at —, 116 S Ct, at 1107-1108), congressional preemptive intent may be shown from express language in the Federal statute; it may also be established implicitly because the Federal legislation is so comprehensive in its scope that it is inferable that Congress wished fully to occupy the field of its subject matter ("field preemption”), or because State law conflicts with the Federal law. Implied conflict preemption may be found when it is impossible for one to act in compliance with both the Federal and State laws, or when "the state law * * * 'stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ ” (id., 517 US, at —, 116 S Ct, at 1108, quoting Hines v Davidowitz, 312 US 52, 67; City of New York v Job-Lot Pushcart, 88 NY2d 163, 170).

Moreover, Federal administrative agency regulations, promulgated pursuant to congressional delegation of discretionary quasi-legislative authority to effectuate congressional purposes, may also preempt State law (see, Capital Cities Cable v Crisp, 467 US 691, 699-700). "When the administrator promulgates regulations intended to pre-empt state law, the court’s inquiry is * * * limited: Tf [h]is choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned’ ” (Fidelity Fed. Sav. & Loan Assn. v De la Cuesta, 458 US 141, 154, quoting United States v Shimer, 367 US 374, 383 [brackets in the original]).

The potential collision here of plaintiffs’ State law causes of action with Federal law arises out of the 1975 amendments to the Securities Exchange Act of 1934 (see, Pub L 94-29, 89 US Stat 97, codified at 15 USC § 78a et seq.) and the implementing regulations of the SEC. The 1975 amendments were enacted in response to a congressional perception of "the securities industry’s languor in the face of great change and great opportunity” (Sen Rep No. 94-75, Senate Comm on Banking, Housing and Urban Affairs, 94th Cong, 1st Sess 1, reprinted in 1975 US Code Cong & Admin News 179, 180 [summarizing the 1973 Securities Industry Study Report of the Subcommittee on Securities]). Congress identified the causes of that languor to include "price fixing [of] commission rates; artificial * * * [and] unjustified barriers to access to markets and market makers; opposition to market integration from powerful vested interests, * * * [and] the absence of effective control of market developments and operations by the Securities and Exchange Commission” (id.).

Thus, Congress concluded that new legislation was necessary whereby "the SEC is granted broad and flexible authority to shape a new market system adequate to the needs of investors in this country and around the world” (Sen Rep No. 94-75, op. cit., at 2, reprinted in 1975 US Code Cong & Admin News 180 [emphasis supplied]). The bill was designed to give the SEC power to "eliminate all unnecessary or inappropriate burdens on competition,” "pursue the goal to centralized trading of securities” and "provide leadership for the development of a more coherent and rational regulatory structure to correspond to and to police effectively the new national market system” (Sen Rep No. 94-75, op. cit., at 2, reprinted in 1975 US Code Cong & Admin News 181 [emphasis supplied]).

Accordingly, to the original Securities Exchange Act’s enumerated reasons for requiring regulation of the securities industry, the 1975 amendments added the necessity "to remove impediments to and perfect the mechanisms of a national market system for securities and a national system for the clearance and settlement of securities transactions” (Pub L 94-29, § 2, 89 US Stat 97, codified at 15 USC § 78b). Congress made specific findings that it was in the public interest to assure "economically efficient execution of securities transactions; [and] fair competition among brokers and dealers, among exchange markets, and between exchange markets and markets other than exchange markets” (Pub L 94-29, § 7, 89 US Stat 111-112, codified at 15 USC § 78k-l [a] [1] [C] [i], [ii]).

Under the 1975 amendments, the SEC was "directed, therefore, having due regard for the public interest, the protection of investors, and the maintenance of fair and orderly markets, to use its authority under this chapter to facilitate the establishment of a national market system for securities * * * and to carry out the objectives set forth in paragraph (1) of this subsection [15 USC § 78k-l (a) (1), quoted above]” (Pub L 94-29, § 7, 89 US Stat 112, as codified at 15 USC § 78k-l [a] [2]).

Congress also authorized implementing regulations to "assure the prompt, accurate, reliable, and fair collection * * * [and] distribution * * * of information with respect to * * * transactions in such securities and the fairness and usefulness of the form and content of such information” (Pub L 94-29, § 7, 89 US Stat 115, codified at 15 USC § 78k-l [c] [1] [B] [emphasis supplied]).

Acting under the foregoing legislative directions and delegation of authority, in 1977 the SEC adopted rule 10b-10, regarding information to be disclosed on customers’ confirmation statements upon the execution of customers’ orders. The disclosure requirements of rule 10b-10 were proposed by the SEC as "a uniform rule applicable to all who wish to effect transactions for or with investors” (Securities Confirmations, Proposed Rule, Securities Exchange Act Release No. 34-12806 [Sept. 16, 1976], reprinted in 41 Fed Reg 41432 [emphasis supplied]). The SEC decided the nature and extent of such disclosure by "adjust[ing] regulatory requirements to eliminate those for which compliance costs appear to be disproportionate to the practical benefits of investor protection thereby obtained” (id.). Thus, as originally adopted, rule 10b-10 contained a requirement that on a customer’s confirmation statement the broker-dealer disclose "whether any other remuneration [other than the amount received from the customer and certain specified sources] has been or will be received and that the source and amount of such other remuneration will be furnished upon written request” (Securities Confirmations, Securities Exchange Act Release No. 34-13508 [May 5, 1977] [announcing adoption of rule 10b-10], reprinted in 42 Fed Reg 25318, 25323, codified as amended at 17 CFR 240.10b-10 [a] [7] [iv]).

Federal Regulation of Order Flow Payments

The SEC has monitored and studied securities industry assessments of the practice of order flow payments for over a decade (Securities Exchange Act Release No. 34-33026, 58 Fed Reg 52935). The agency conducted a round table discussion on the subject in 1989 (id.). The SEC consistently applied the confirmation statement remuneration disclosure mandate of the original rule 10b-10 to order flow payments (Securities Exchange Act Release No. 34-33026, 58 Fed Reg, at 52936-52937 ["Thus, Rule 10b-10 currently requires a broker-dealer to indicate specifically if it is receiving payment for order flow in connection with a particular customer trade.”]). It is uncontested that Schwab and Fidelity complied with the applicable disclosure requirements of then rule 10b-10 on the confirmation statements they sent to all of the putative plaintiff class members here.

In 1993, the SEC proposed to amend and add to its disclosure regulations in order to address with more particularity the practice of order flow payments (Securities Exchange Act Release No. 34-33026, op. cit.). The SEC’s decision-making process entailed the same interest balancing and cost/benefit analysis as was utilized in initially adopting rule 10b-10. The SEC reviewed the potential detrimental effects of order flow payments, including potential conflicts of interest between customer and broker (Securities Exchange Act Release No. 34-33026, 58 Fed Reg 52936), possible breach of duty of best execution of orders under common-law agency principles and possible commission of commercial bribery under Federal and State law (id., 58 Fed Reg 52937-52939, 52941). Thus, the agency recognized that there were critics who advocated drastic restrictions on order flow payments, if not outright elimination of the practice (id., 58 Fed Reg 52941).

Conversely, the SEC’s 1993 proposed rule making on order flow payments recognized that the securities industry gained economic advantages from the practice, which ultimately benefitted the investor public (id., 58 Fed Reg 52939-52940).

The SEC rejected any extreme approach in favor of a proposed rule to expand disclosure of the receipt of order flow payments. The agency proposed to amend rule 10b-10: (1) to include a broad definition of the practice itself, that would also cover various commonly employed forms of nonmonetary remuneration; and (2) to require confirmation statement disclosure of the receipt of order flow payments and the specific dollar "amount of any monetary payment, discount, rebate or reduction of fee” received (Securities Exchange Act Release No. 34-33026, 58 Fed Reg 52940). Additionally, the SEC proposed a new rule llAcl-3 to require disclosure on each new customer’s account statement and annually thereafter as to the broker-dealer’s policies concerning the receipt of order flow payments and annual disclosure of the aggregate dollar amount of such payments, rebates, etc. {id., 58 Fed Reg 52940). The agency invited comment on its proposal and upon more drastic alternative regulation of order flow payments, including outright elimination of the practice or requiring dealers to pass onto customers the order flow payment received {id., 58 Fed Reg 52941-52942).

Approximately a year later, the SEC announced adoption of its final rule for regulation of order flow payments (Payment For Order Flow, Securities Exchange Act Release No. 34-34902 [Oct. 27, 1994], reprinted in 59 Fed Reg 55006). It explained that it rejected elimination of order flow payments entirely because the practice did not necessarily violate a broker-dealer’s best execution obligation, and that the practice benefit-ted the securities industry in lowering execution costs, in facilitating technological advances in retail customer order handling practices and in enhancing competition among broker-dealers and the various exchange and nonexchange securities markets and, thus, also worked to the advantage of investors {id., 59 Fed Reg 55007-55011). The SEC also noted the serious enforcement problems that elimination of the practice would entail and the drastic impact that an outright ban would have on the securities industry {id., 59 Fed Reg 55011).

The SEC’s 1994 final rule regulating the practice of order flow payments largely followed the disclosure requirements it had proposed a year earlier. However, the agency — again employing cost/benefit analysis — eliminated the proposed disclosure requirements that confirmation statements and annual account statements show dollar amounts received for order routing. The SEC was apprehensive that mandatory disclosure of specific monetary receipts might be "unworkable” {id., 59 Fed Reg 55010) and would, at the least, impose "an extreme burden” upon broker-dealers "to determine the amount of order flow received for each order in time for a confirmation” and would entail expenses disproportionately high in relation to the potential benefits to customers {id., 59 Fed Reg 55010, n 39).

Preemption Analysis As Applied to Plaintiffs Common-Law Agency Causes of Action

Preemption analysis must begin with a description of the nature of plaintiffs’ causes of action and whether they represent colorable claims from which liability could be imposed. In this Court, as before the Appellate Division, plaintiffs have abandoned their statutory and common-law claims based on the per se illegality of defendants’ receipt of order flow payments. Instead, plaintiffs rely exclusively on allegations in their identical complaints that Schwab and Fidelity violated their common-law agency relationships with customers comprising the putative plaintiff classes. Specifically, they allege that Schwab and Fidelity breached their common-law duties, owed to each member of the plaintiff classes, of undivided loyalty under which they were limited to acting in any stock transaction solely in the interest of each firm’s principal.

Plaintiffs allege that the acceptance by defendants of order flow payments, which they characterize as "kickbacks,” violated the agency relationship with each class member because customers’ orders were accepted and routed "without full and frank disclosure” of each defendant’s dual role in the transaction, which disclosure "to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance” (Complaints 8). Plaintiffs aver that defendants’ disclosures to the members of the class were inadequate (rendering their dual role and self-dealing actionable) in failing to inform the "class members prior to the execution of any transaction that [defendants] would be receiving a kickback, let alone the amount thereof’ (Complaints 9 [emphasis added]). They allege that the disclosure on the customers’ confirmation statements (in compliance with then rule 10b-10 [a] [7] [iii]), that remuneration was received and would be further described upon request, "falls far short of the full and frank disclosure required by law” (id.).

Plaintiffs’ allegations of the standard of disclosure which must be made by an agent, having a personal interest in the principal’s transaction prior to the execution of the transaction, has support in New York agency law precedents. Indeed, plaintiffs plead verbatim this Court’s articulation of an agent’s obligation to make a full and complete disclosure of any conflict of interest in a transaction conducted for the principal:

"Disclosure * * * indefinite and equivocal does not set the agent free to bargain for his own account or for the account of a corporation which acts through him alone. If dual interests are to be served, the disclosure to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance” (Wendt v Fischer, 243 NY 439, 443 [Cardozo, J.] [emphasis supplied]; see also, TPL Assocs. v Helmsley-Spear, Inc., 146 AD2d 468).

In such conflict of interest situations, the Restatement (Second) of Agency states that advance disclosure by the agent is required of "all facts which the agent knows or should know would reasonably affect the principal’s judgment” whether to consent to the agent’s dual role (Restatement [Second] of Agency § 390, and comment a, at 208-209). Thus, facially, plaintiffs have pleaded actionable claims under New York common-law agency principles, and similar claims could have been brought in the courts of other States who subscribe to the views of the Restatement (Second) of Agency. And a jury could have found against Schwab or Fidelity under these principles because no specific pretransaction disclosure of defendants’ receipt of order flow payments was made, nor of the dollar amounts of such payments to be received in the transaction, which disclosure might have affected the judgment of the customers.

Upon the basis of the legislative history of the 1975 amendments to the Securities Exchange Act and the history of SEC’s implementing regulations applicable to order flow payment disclosure, we are convinced that permitting the courts of each State to enforce the foregoing common-law agency standards of disclosure on the practice of order flow payments in civil damage actions would unavoidably result in serious interference with the "accomplishment and execution of the full purposes and objectives of Congress” (Hines v Davidowitz, supra, 312 US, at 67), in enacting the 1975 amendments, and would directly conflict with SEC regulations limiting the disclosure requirements regarding receipt of order flow payments to less exacting, posttransaction information on customer confirmation statements and disclosure of general policies of the broker on initial and annual customers’ account statements.

As we have shown, the 1975 amendments to the Securities Exchange Act were intended to give the SEC the power administratively to develop a "coherent and rational regulatory structure to correspond to and to police effectively the new national market system” (Sen Rep No. 94-75, at 2, op. cit, 1975 US Code Cong & Admin News 181). Among the goals of Congress in that legislation was to spark the creation of such a national market system for security trading, which would assure more "economically efficient execution of securities transactions” and promote greater competition among all securities industry players, including competition "between exchange markets and markets other than exchange markets” (Pub L 94-29, § 7, 89 US Stat, at 111-112, codified at 15 USC § 78k-l [a] [1] [C]). The SEC was directed administratively to promote those goals. Congress also recognized that its objectives would require SEC regulation of disclosures regarding security transactions, including "the fairness and usefulness of the form and content of such information” (id., 89 US Stat, at 115, codified at 15 USC § 78k-l [c] [1] [B]).

Acting pursuant to that delegated authority, the SEC fashioned customer disclosure requirements applicable to the receipt of order flow payments in 1977 under the original rule 10b-10, and in 1994 by amendments to rule 10b-10 and the adoption of new rule llAcl-3. In each instance, the agency determined the nature and extent of the disclosure require-, ments, based on an interest-weighing, cost/benefit analysis. In applying the former rule 10b-10 disclosure requirements to order flow payments and in specifically addressing the practice in its 1994 rule making on the subject, the SEC recognized that order flow payments further the purposes of Congress by enhancing more efficient and less costly execution of customers’ orders and by promoting competition for order executions among all markets, with demonstrated beneficial results for individual investors.

Permitting the courts of each State to impose civil liability on national securities brokerage firms, such as Schwab and Fidelity, for failure to meet more stringent common-law agency standards of disclosure of receipt of order flow payments (rather than the Federally mandated uniform specific disclosure on posttransaction confirmation statements and general disclosure on new customer account statements and annual statements, under the SEC’s amended rule 10b-10 and rule llAcl-3) would inevitably defeat the congressional purpose of enabling the SEC to develop and police that "coherent regulatory structure” for a national market system. Securities broker-dealers, confronted with the risk of nationwide class action civil damage liability, including restitution of commissions and punitive damages — as plaintiffs seek here — would be impelled to tailor their disclosures to each State’s common-law agency jurisprudence, and the carefully crafted SEC disclosure requirements would have little, if any, influence. Surely, "[i]t is unlikely — to say the least — that Congress intended to establish such a chaotic regulatory structure” (International Paper Co. v Ouellette, supra, 479 US, at 497).

When, thus, a State’s regulation, through the imposition of common-law tort liability or otherwise, adversely affects the ability of a Federal administrative agency to regulate comprehensively and with uniformity in accordance with the objectives of Congress, "then the state law may be pre-empted even though 'collision between the state and federal regulation may not be an inevitable consequence’ ” (Schneidewind v ANR Pipeline Co., 485 US 293, 310, quoting Northern Gas Co. v Kansas Commn., 372 US 84, 91-92).

State civil actions based upon common-law agency doctrine would thwart the objectives of Congress in a second respect. As already noted, the SEC determined that the practice of order flow payments brings about constructive results furthering the goals of Congress in the 1975 amendments to the Securities Exchange Act. It also found that stricter disclosure requirements than those ultimately adopted under its rules might be unworkable or costly out of all proportion to possible benefits to investors. Thus, the SEC rejected proposals for more exacting disclosure, anticipating that, at the least, the increased cost of such disclosure would be passed onto customers in higher commissions or to market makers in higher fees for order routing — outcomes clearly counterproductive to congressional objectives of economically efficient execution of orders, lower execution costs and vigorous competition among OTC and exchange markets. At worst, onerous stricter disclosure costs plus the threat of lawsuits all around the country, based on breach of common-law agency relationships, would likely result in many brokerage firms abandoning acceptance of order flow payments altogether, an even more drastic undermining of congressional objectives. Thus, for these reasons, we agree With the Minnesota Supreme Court’s conclusion in Dahl v Charles Schwab & Co. (545 NW2d 918, 925, cert denied — US —, 117 S Ct 176 [Oct. 7, 1996]), that these likely deleterious if not ruinous effects upon a securities industry practice the SEC, under its delegated securities industry supervisory powers has determined will further the policies of Congress, are alone sufficient to require preemption (see, Capital Cities Cable v Crisp, 467 US 691, 707-708, supra). Put another way, the SEC, acting reasonably within its rule-making authority, adopted a policy, incorporated in regulations, of permitting the practice of order flow payments and not unduly inhibiting the practice by oppressive disclosure requirements. These goals and policies of the SEC are "antithetical to threshold limitations placed” on order flow payment practices in the form of severely, if not prohibitively, burdensome additional disclosure requirements imposed by application of each State’s common-law of agency in civil damage actions (Doctor’s Assocs. v Casarotto, 517 US —, —, 116 S Ct 1652, 1657 [May 20,1996]).

We reject plaintiffs’ contention that there is no preemption here because compliance with State common-law disclosure standards under agency doctrine would not prevent compliance with SEC regulatory disclosure requirements, and because greater disclosure promotes the same investor-protection purposes of the Federal regulations. Even if the goals of Federal and State law are the same, "[a] state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach this goal” (International Paper Co. v Ouellette, 479 US, at 494, supra). The stricter standards of order flow payment disclosure which may be required under State common-law agency principles inevitably will supplant the disclosure rules of the SEC on the same subject and come to dominate the relationship between broker and customer, since the broker would not be able to avoid civil liability for acceptance of order flow payments merely by complying with Federal regulations.

Unquestionably, however, State common-law standards for disclosure when an agent has a financial stake in a transaction effected on behalf of a principal are set generally, and would be applied to broker-dealer receipt of order flow payments, without engaging in the policy choices and balancing of the competing legitimate interests of investors, exchange and non-exchange markets and other participants in the securities industry, that the SEC was charged by Congress to perform and that are involved in regulation of order flow payments. Thus, although both State common-law actions and Federal regulations may promote broker-dealers’ disclosure to customers, State enforcement of agency law standards of disclosure cannot help but upset the policy-based delicate balance Congress directed the SEC to achieve in the regulatory regime envisaged under the 1975 amendments to the Securities Exchange Act. Here, as in International Paper Co. v Ouellette (supra) (where State common-law nuisance actions also threatened to upset a Federally designed, legislative/regulatory interest-weighing cost/benefit approach), "[i]t would be extraordinary for Congress, after devising an elaborate [balanced regulatory] system that sets clear standards, to tolerate common-law suits that have the potential to undermine this regulatory structure” (id., 479 US, at 497; see also, Gordon v New York Stock Exch., 422 US 659, 688-690; Darling v Mobil Oil Corp., 864 F2d 981, 987-988).

The Effect of Securities Exchange Act § 28 (a) on the Preemption Issue

Plaintiffs contend that any inference of preemptive intent by Congress under the 1975 amendments to the Securities Exchange Act is negated by the "savings” clauses incorporated in the statute by section 28 (a) of the Act (15 USC § 78bb [a]). That section provides that the Exchange Act’s rights and remedies are "in addition to any and all other rights and remedies that may exist at law or in equity,” and that the Act does not "affect the jurisdiction of [State securities regulatory bodies] over any security or any person insofar as it does not conflict with the provisions of this title or the rules and regulations thereunder” (emphasis supplied). We conclude that section 28 (a) does not foreclose the implied conflict preemption we find here. First, the legislative history of section 28 (a) indicates that its purpose was to "leave the States with as much leeway to regulate securities transactions as the Supremacy Clause would allow them in the absence of such a provision,” and particularly, "to save state blue-sky laws from pre-emption” (Leroy v Great W. United Corp., 443 US 173, 182, n 13 [describing the testimony of the principal draftsman of the Exchange Act in Senate hearings on the legislation]).

Substantially similar savings clauses have been interpreted as only negating implied field preemption, but not conflict preemption, leaving the courts to determine when any given State regulation is impliedly preempted because it prevents compliance with the Federal law or the full achievement of congressional, objectives (International Paper Co. v Ouellette, supra, 479 US, at 492-494; see also, Edgar v MITE Corp., 457 US 624, 631 [plurality opinion construing Securities Exchange Act § 28 (a)]).

Finally, the Supreme Court in Freightliner Corp. v Myrick (514 US 280, supra), held that inclusion of an express provision in a Federal statute dealing with the preemption issue may support an inference negating implied preemption, but this "does not mean that the express clause entirely forecloses any possibility of implied pre-emption” (id., 514 US, at 288). Any inference negating implied preemption was completely overcome here because, as we have demonstrated, enforcement of State common-law duties of disclosure under its agency jurisprudence not only would have "the potential,” but would inevitably "undermine [the finely crafted and balanced Federal] regulatory structure” (International Paper Co., supra, 479 US, at 497).

Accordingly, in each action the order of the Appellate Division should be reversed, the complaint dismissed, and the certified question answered in the negative, with costs.

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

In each action: Order reversed, etc.

      . At the time Supreme Court dismissed each of these actions, neither had yet been certified as a class action.

      . Payment For Order Flow, Securities Exchange Act Release No. 34-33026 (Oct. 6, 1993), reprinted in 58 Fed Reg 52934, 52935-52936; Facciolo and Stone, Avoiding the Inevitable: The Continuing Viability of State Law Claims in the Face of Primary Jurisdiction and Preemption Challenges Under the Securities Exchange Act of 1934,1995 Colum Bus L Rev 525, 640 (hereinafter cited as "Facciolo and Stone”).

      . Securities and Exchange Commission Division of Market Regulation, Market 2000: An Examination of Current Equity Market Developments, at 8-9 (1994).

      . Securities Exchange Act Release No. 34-33026, op. cit., 58 Fed Reg 52936.

      . Thus, similarly, all of Evangelist’s causes of action except the Martin Act claim were reinstated.

      . In pertinent part the final rule added a new subdivision (e) (9) (defining payment for order flow), added a new subdivision (a) (7) (iii) (governing disclosure of order flow payment at confirmation), and added a new rule llAcl-3 (governing disclosure on customer account statements). These changes were codified respectively at 17 CFR 240.10b-10 (e) (9) (now 17 CFR 240.10b-10 [a] [9]); (a) (7) (iii), and 17 CFR 240.11Acl-3. Additionally, former subdivision (a) (7) (iii) of rule 10b-10 — the original confirmation statement remuneration requirement — was redesignated subdivision (a) (7) (iv).

        . Securities industry representatives expressed to the SEC their apprehension of exposure to liability if common-law agency principles were allowed to prevail over SEC uniform disclosure requirements (see, e.g., Letter to Secretary, SEC from Andrew M. Klein, Schiif Hardin & Waite [July 5, 1990]), quoted in Facciolo and Stone, op. cit., 1995 Colum Bus L Rev, at 657, n 410; see also, Securities Exchange Act Release No. 34-33026, 58 Fed Reg 52938-52939).