author: Titone, J.

text:
    [649 NE2d 1167, 626 NYS2d 23]
    Ronald Zanghi et al., Appellants, v Niagara Frontier Transportation Commission et al., Defendants, and Greyhound Bus Lines, Inc., Respondent. Frank P. Raquet et al., Appellants, v Carol Braun et al., Respondents. Frank P. Raquet et al., Appellants, v Clifford A. Zane et al., Defendants, and Leonard J. Zane, Respondent. Robert Ruocco et al., Appellants, v New York City Transit Authority, Respondent.
    Argued February 8, 1995;
    decided March 30, 1995

      POINTS OF COUNSEL

      Grosse, Chelus, Herdzik & Speyer, P. C., Buffalo (Thomas J. Speyer and Gregory V Pajak of counsel), for appellants in the first above-entitled action.

      Gibson, McAskill & Crosby, Buffalo (Brian P. Crosby and David W. Kloss of counsel), for respondent in the first above-entitled action.

      Sullivan & Liapakis, P. C., New York City (Michael N. Block, Marshall M. Kolba and Stephen C. Glosser of counsel), for New York State Trial Lawyers’ Association, amicus curiae, in the first above-entitled action.

      Dreyer, Boyajian & Tuttle, Albany (James B. Tuttle of counsel), for Police Conference of New York, Inc., amicus curiae, in the first above-entitled action.

      Paul A. Crotty, Corporation Counsel of New York City (Pamela Seider Dolgow and Linda H. Young of counsel), for City of New York, amicus curiae, in the first above-entitled action.

      Renaldo, Myers, Regan & Palumbo, P. C., Buffalo (James I. Myers, of counsel), for appellants in the second above-entitled action.

      Lustig & Brown, Buffalo (Melinda W. Ebelhar of counsel), for Carol Braun and others, respondents in the second above-entitled action.

      Quinn, McGarry & Caffery, P. C., Buffalo (David C. Quinn of counsel), for Leonard J. Zane, respondent in the second above-entitled action.

      Maloney, Gallup, Roach, Brown & McCarthy, P. C., Buffalo (J. Mark Gruber of counsel), for Benito Olivieri, respondent in the second above-entitled action.

      William V. O’Leary, Albany, for New York State Association of Fire Chiefs, Inc., amicus curiae, in the second above-entitled action.

      Edward M. Cooke, Monticello, for Firemen’s Association of the State of New York, amicus curiae, in the second above-entitled action.

      Sullivan & Liapakis, P. C., New York City (Michael N. Block, Marshall M. Kolba and Stephen C. Glosser of counsel), for Uniformed Firefighters’ Association and another, amici curiae, in the second above-entitled action.

      Lombardi, Reinhard, Walsh & Harrison, P. C., Albany (Paul E. Davenport of counsel), for New York State Professional Firefighters Association, amicus curiae, in the second above-entitled action.

      Paul A. Crotty, Corporation Counsel of New York City (Pamela Seider Dolgow and Linda H. Young of counsel), for City of New York, amicus curiae, in the second above-entitled action.

      Monsour, Winn, Kurland & Warner, Lake Success (B. Jennifer Jaffee of counsel), for appellants in the third above-entitled action.

      Lawrence Heisler, Brooklyn, Albert C. Cosenza and Lawrence A. Silver for respondent in the third above-entitled action.

      Sullivan & Liapakis, P. C., New York City (Michael N. Block, Marshall M. Kolba and Stephen C. Glosser of counsel), for New York State Trial Lawyers’ Association, amicus curiae, in the third above-entitled action.

      Paul A. Crotty, Corporation Counsel of New York City (Pamela Seider Dolgow and Linda H. Young of counsel), for City of New York, amicus curiae, in the third above-entitled action.
   OPINION OF THE COURT

Titone, J.

In Cooper v City of New York (81 NY2d 584), we held that, pursuant to the firefighter rule, police and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment. These three appeals require us to determine the scope of this bar to recovery. We conclude that the firefighter rule precludes a police officer or firefighter from recovering in tort when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury. Applying that test in each of these cases before us, we hold that all three plaintiffs are barred from recovering on their common-law negligence claims. In Raquet v Braun, however, we hold that the plaintiff firefighters’ statutory claims pursuant to General Municipal Law § 205-a should be reinstated.

I. Background

In Zanghi v Niagara Frontier, plaintiff Police Officer Zanghi, who had been assigned to the Greyhound Bus Terminal during a bus driver strike, was injured when he slipped and fell on a snow-covered metal plate as he was approaching a picketer who was packing snowballs, presumably to throw at departing buses. Plaintiff, and his wife derivatively, sued defendants Niagara Frontier Transportation Commission, Niagara Frontier Transit Authority, the owner of the property, and Greyhound, its tenant, on a negligence theory, alleging specifically that defendants failed to protect him from a "hidden hazard” on the premises — the metal plates rendered slippery by the snow.

In Raquet v Braun, Volunteer Firefighter Mitchell Spoth died and Volunteer Firefighter Frank Raquet was paralyzed from injuries sustained when the canopy roof on a building addition and a portion of the addition’s masonry wall collapsed during a blaze in November 1984. Alleging common-law and statutory negligence claims, the Raquet and Spoth plaintiffs sued defendants Leonard Zane, the owner of the building, and the contractors Zane had hired in 1972 to design and construct the addition, including defendants Carol Braun, a professional engineer, J.M. Braun Builders, the contractor who erected the canopy roof, and defendant Benito Olivieri, individually and doing business as Mason Construction, Inc., the mason who constructed the addition’s exterior wall. Specifically, plaintiffs alleged that all defendants were negligent because the building was not constructed in compliance with the approved plans and standard procedure. According to plaintiffs, the resulting defects in the structure caused the building to abnormally collapse outward instead of inward, leading to the death and injury of the two firefighters who were positioned on the street. The statutory claims were brought pursuant to General Municipal Law § 205-a, based on all defendants’ alleged violations of the State Building Construction Code and the Town of Clarence Code. Included in the General Municipal Law cause of action was the allegation that defendant Leonard Zane failed to obtain a certificate of occupancy for the expanded building as required by the building permit (see, Town of Clarence Code § 30-78 [A]).

In the third case, Ruocco v New York City Tr. Auth., two police officers, plaintiffs Robert Ruocco and Michael Falcone, were injured when they fell while rushing down a flight of stairs leading into the subway in response to a radio call for assistance from another officer. After they fell, the officers noticed that the stairs were wet and that an employee of the New York City Transit Authority (NYCTA) was standing at the bottom of the stairs with a mop and pail of water. Plaintiffs, and Josephine Falcone derivatively, sued defendant NYCTA in common-law negligence. Specifically, plaintiffs alleged that defendant failed to properly maintain the subway stairway, "which was cracked, worn, uneven, dirty and wet” at the time of the accident, and failed to warn of the danger.

All three sets of defendants moved to dismiss the respective complaints against them on the ground that the common-law negligence action was barred by the "firefighter rule.” In each of the cases, the respective trial courts denied the defendants’ motions, citing the "separate and apart” exception to the firefighter rule, which would permit a common-law negligence action to go forward if the conduct causing the injury was independent of the conduct for which the officers and firefighters had been summoned. In Raquet, the trial court additionally declined to dismiss the statutory claims, specifically rejecting the argument of defendants Braun, J.M. Braun Builders, and Olivieri that General Municipal Law § 205-a claims could only be brought against owners or occupants of the premises, and not against architects or contractors who worked on the premises years prior to the fire and collapse of the structure.

The rulings on the common-law claims were reversed by the Appellate Division in each case on the ground that the "separate and apart” exception had been rejected by this Court in Cooper v City of New York (81 NY2d 584, supra). The uniform conclusion was that all of the common-law negligence claims were barred by the firefighter rule because the injuries were caused by the particular types of risks that the respective police officers and firefighters had assumed as part of their duties. Additionally, in Raquet v Braun, the Appellate Division dismissed the statutory claims against all defendants, holding that violations of building codes do not give rise to liability pursuant to General Municipal Law § 205-a because they do not " 'create hazards additional to those that firefighters already face in their profession’ (Kenavan v City of New York, [70 NY2d 558,] 567).” (201 AD2d, at 911.)

We affirm the dismissal of the negligence claims in all three cases. We modify in Raquet by reversing and reinstating the statutory claims against defendant Leonard Zane, and otherwise affirm the dismissal of the common-law negligence claims.

II. Common-Law Negligence Claims

The "firefighter’s rule,” a product of this State’s long-standing common law, precludes firefighters and police officers from recovering damages for injuries caused by "negligence in the very situations that create the occasion for their services” (Santangelo v State of New York, 71 NY2d 393, 397). The rule is applied to bar common-law negligence claims where "the injury sustained is related to the particular dangers which police officers [and firefighters] are expected to assume as part of their duties” (Cooper v City of New York, 81 NY2d 584, 590, supra).

The rationale for applying the firefighter rule has evolved from the initial theory that public safety officers, as licensees entering upon the land, took the property as they found it. With that rationale undermined by Basso v Miller (40 NY2d 233), subsequent cases retained the firefighter rule by reliance on the doctrine of assumption of risk — i.e., that persons who accept employment as firefighters or police assume the risks of fire-related or crime-fighting-related injuries, including the risk that property owners and occupants may negligently maintain their premises (McGee v Adams Paper & Twine Co., 26 AD2d 186, 190, affd 20 NY2d 921). Continued application of the bar is presently grounded on the public policy against awarding damages to firefighters and police for hazards "that create a need for their services” and which they are hired, specially trained and compensated to confront (Santangelo v State of New York, 71 NY2d, at 397, supra).

In an apparent effort to abate the harsh effects of the firefighter rule, some courts in this State created an exception to the bar of common-law negligence claims where the negligent act causing the injury was "separate and apart” from the act occasioning the need for the officer’s services (see, e.g., Starkey v Trancamp Contr. Corp., 152 AD2d 358, 361). As the Appellate Division in each of the cases before us correctly stated, however, that exception was rejected by this Court in Cooper v City of New York (81 NY2d 584, 590, supra).

In Cooper, this Court explained that the "determinative factor” in applying the firefighter rule’s bar is "whether the injury sustained is related to the particular dangers which police officers [and firefighters] are expected to assume as part of their duties” (id., at 590). In these three cases we are essentially asked to define when the requisite "connection” exists between the plaintiff’s injury and the special hazards associated with police and fire duties (see, id., at 591). We hold that that necessary connection is present where the performance of the police officer’s or firefighter’s duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury. In other words, where some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common-law negligence. By contrast, a common-law negligence claim may proceed where an officer is injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving that injury. For example, if a police officer who is simply walking on foot patrol is injured by a flower pot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the acts undertaken in the performance of police duties placed him or her at increased risk for that accident to happen. On the other hand, if an officer is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery in tort because the officer is specially trained and compensated to confront such dangers.

Applying the pertinent principles to the cases before us, we conclude that the common-law negligence claims in all three cases were properly dismissed. In Zanghi, which involved the police officer who slipped on the snow-covered metal plate, the officer’s own trial testimony established that he was focused solely on quickly reaching the picketer who was packing the snowball. Thus, the emergent circumstances exposed plaintiff Zanghi to the risk of injury from slipping on the plate concealed by patches of snow — a risk similar to that faced by the police officers in Cooper, who drove in excess of the speed limit and without regard for the attendant weather and lighting conditions. Accordingly, the risk of slipping while approaching the strikers was one of the particular risks of employment that plaintiff Zanghi was compensated to confront.

Likewise, injury to a firefighter due to the collapse of a burning building is one of the particular risks firefighters are asked to brave by their employment. Without doubt, the performance of the firefighting duties by plaintiffs Spoth and Raquet in Roquet v Braun increased the risk of being injured by the collapse of the roof and exterior wall.

Also, police officers are commonly called to render assistance to other officers, and may respond in a variety of ways. The primary goal of the officers is to reach the fellow servant quickly and to render assistance; care and caution in the steps taken to reach that location are naturally compromised. The risk that an officer may be injured during the response, due to the loss of footing, a blow out on a tire, or a car collision at an intersection is inherent in police duties. Thus, the officers in Ruocco, who were rushing down stairs to reach a co-worker in need of assistance, were at an increased risk of injury precisely because of the nature of the duty they were performing —responding to a call for backup — and are barred from recovering damages for common-law negligence by the firefighter rule.

III. General Municipal Law § 205-a Claims

General Municipal Law § 205-a creates a right of action for firefighters or representatives of deceased firefighters where the "negligence of any person * * * in failing to comply with the requirements of any of the statutes, ordinances, [or] rules * * * of the federal, state * * * or [local] governments” directly or indirectly caused the firefighter’s injury or death during the discharge of his or her duty. The statute provides that "the person or persons guilty of said * * * negligence at the time of such injury or death shall be liable to pay” the firefighter or surviving heirs a specified sum of money (id. [emphasis supplied]). This remedial section of the General Municipal Law was enacted to ameliorate the harsh effects of the firefighter rule’s bar to recovery in common-law negligence by imposing "liability in any case where there is any practical or reasonable connection between a [statutory or code] violation and the injury or death of a fire[fighter]” (McGee v Adams Paper & Twine Co., 26 AD2d 186, 195, affd 20 NY2d 921, supra). To fall within the protective scope of the statute and defeat a motion to dismiss, a plaintiff seeking recovery under General Municipal Law § 205-a must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the firefighter was injured, and set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm to the firefighter (Brophy v Generoso, 137 AD2d 478, 479).

The Raquet and Spoth plaintiffs allege that they are entitled to recover under General Municipal Law § 205-a because defendants’ violations of the State and Town of Clarence Building Codes resulted in structural defects in the addition, which in turn caused its canopy roof and masonry wall abnormally to collapse outward onto the firefighters who were stationed in the street approximately 15 feet from the building. According to plaintiffs’ expert, had the canopy roof on the addition been properly connected to the roof of the main building, the canopy would have collapsed inward along with the main roof, which had collapsed approximately 20 minutes earlier.

Specifically, plaintiffs allege that defendant owner and contractors violated New York State Building Construction Code § C 304-5 (now State Uniform Fire Prevention and Building Code 9 NYCRR 803.5) because the addition did not resist the overturning force created by the improper attachment of the canopy roof to the masonry wall without connecting it to the main roof. Plaintiffs also allege that defendant owner and defendant contractors, as agents of the owner, violated New York State Building Construction Code § C 304-9 (b) (now 9 NYCRR 803.9 [b]) (minimal impact requirements); § C 401-8 (now 9 NYCRR 770.7) (excessive extension of canopy); and § C 401-9 (now 9 NYCRR 770.8) (improper use of combustible materials in canopy). Citing defendant contractors’ failure to adhere to the building plans, plaintiffs claim that the owner and his contracting agents violated the Town of Clarence Building Code § 30-77 (A) and (B), which together require that a building permit be issued prior to construction and provide that the failure to build in accordance with the approved plans renders the permit null and void. Plaintiffs claim that defendant Zane, as owner of the premises, and the Carpet Factory defendants, as tenants, violated Town of Clarence Code § 30-78 (A) by occupying the building without a certificate of occupancy. In sum, plaintiffs contend that they have properly pleaded a claim pursuant to General Municipal Law § 205-a because the violations of the aforementioned codes created the danger of outward collapse which in turn resulted in the injury and death of the respective firefighters. We agree.

The Appellate Division erred in dismissing the section 205-a claims on the grounds that the alleged building code violations "relate[ ] only tangentially, if at all, to fire prevention” and would not " 'create hazards additional to those that firefighters already face in their profession’ ”. (201 AD2d, at 912.) First, this Court has already rejected the conclusion, implicit in the Appellate Division’s holding, that only violations of fire-preventive statutes or ordinances trigger section 205-a liability. In Kenavan v City of New York (70 NY2d 558, supra), we traced the history of the statute and concluded that it provided a remedy for the negligent "fail[ure] to comply with the requirements of some statute, ordinance, or rule respecting the maintenance and safety of such premises” (id., at 567 [emphasis added]). The Court rejected the theory— improperly revived by the Appellate Division in this case— that the statutory relief is limited solely to "violations of fire preventive regulations” and explained that the statute authorizes a damage award for firefighters injured in "premises harboring violations of safety provisions that create hazards additional to those that firefighters already face in their profession” (id. [emphasis added]).

Additionally, our statement in Kenavan that safety violations "create hazards additional to those that firefighters already face in their profession” (70 NY2d, at 567, supra) was not intended to create an additional pleading requirement for a plaintiff firefighter seeking to establish a section 205-a claim. Rather, through that language we merely meant to point out that safety violations, by their nature, increase the hazards that firefighters would normally face in buildings harboring no such violations. Accordingly, the Appellate Division erred in dismissing the section 205-a cause of action on the ground that the building code violations did not create any dangers for the firefighters beyond those they would traditionally confront.

Contrary to the Appellate Division’s conclusion, the alleged building code violations may indeed create firefighting hazards upon which section 205-a liability may be based. The courts of this State have long recognized the relationship between the need for structural integrity of buildings and the prevention of fire or collapse (People ex rel. Duryea v Wilber, 198 NY 1; People ex rel. Van Beuren v Miller, 161 App Div 138). In fact, in enacting the Uniform Fire Prevention and Building Code, the Legislature declared that it is the policy of this State to "recognize that fire prevention and fire prevention codes are closely related to the adequacy of building construction codes, that the greatest portion of a building code’s requirements are fire safety oriented, and that fire prevention and building construction concerns should be the subject of a single code” (Executive Law § 371 [2] [b] [2]). Clearly, violations of building codes designed, for example, to avert a collapse, to slow the spread of fire, or to ensure safe passage create hazards that are equally threatening to firefighters as those violations relating to fire prevention codes. So long as the plaintiff also establishes the necessary connection between the violation and the injury (see, McGee v Adams Paper & Twine Co., 26 AD2d 186, 195, affd 20 NY2d 921, supra), violations of building code safety provisions provide a sound predicate for General Municipal Law § 205-a liability.

The Roquet plaintiffs have met their burden of defeating a motion for summary judgment dismissing the statutory claims. The affidavit of plaintiffs’ expert establishes that the building’s outward collapse allegedly caused by defendants’ failure to comply with the aforementioned New York State and Town of Clarence Building Codes enhanced the risk of injury from collapse for the firefighters, who were stationed outside the burning building at a distance apparently considered reasonably safe by industry standards. Since the structural defects may have caused the abnormal collapse, which in turn caused the injury and death of the respective firefighters, the necessary nexus between the violation and the injury has been sufficiently established to defeat defendants’ motion for summary judgment.

IV. Those Liable Under General Municipal Law § 205-a

Having concluded that the building code violations alleged were of the type contemplated by General Municipal Law § 205-a, we are left to determine which classes of defendants may be held liable. Noting that General Municipal Law § 205-a provided a remedy for premises-related liability, in Kenavan v City of New York (70 NY2d 558, supra), this Court concluded that section 205-a liability may be properly asserted only against property owners or others having control of the premises where the firefighting takes place, despite the broad language in the statute referring to the negligence of "any person or persons” which directly or indirectly causes injury to a firefighter.

That the Legislature intended section 205-a liability to be asserted only against those having control over the premises is supported by the legislative history accompanying the enactment of General Municipal Law § 205-e and its amendments, which established the statutory counterpart for police officers injured by the negligent failure to comply with State or local statutes or ordinances. According to a memorandum of the State Executive Department issued when section 205-e was enacted in 1989 (L 1989, ch 346), the purpose of the bill was to give police officers the same right of action enjoyed by firefighters "where injury is the result of negligent non-complionce with * * * regulation^] that apply to the maintenance of premises * * * [and] impose clear duties on property owners [that] are intended to benefit firefighters, police officers and any other person who may enter upon premises subject to regulation” (1989 McKinney’s Session Laws of NY, at 2140, 2141 [emphasis added]). In 1992, section 205-e was amended, however, to permit police officers to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed by the police commissioner” (L 1992, ch 474, §2 [amended by addition of emphasized language]). The statement of legislative intent accompanying the bill states that liability pursuant to this section should no longer "be limited to violations pertaining to the safe maintenance and control of premises. Since our police officers are required to confront dangerous conditions under many and varied circumstances, there is a need to ensure that a right of action exists regardless of where the violation causing injury or death occurs” (L 1992, ch 474, § 1, reprinted in McKinney’s Cons Laws of NY, Book 23, General Municipal Law § 205-e, Historical and Statutory Notes, 1995 Cum Ann Pocket Part, at 43; see also, New York State Senate Mem in Support, Bill Jacket, L 1992, ch 474). Because no similar amendment to section 205-a has been effected, it can be inferred that the Legislature has decided to retain the traditional premises-based liability under the General Municipal Law § 205-a right of action for firefighters.

Thus, while defendant Zane, as the owner of the premises, may clearly be held directly liable under General Municipal Law § 205-a for the building code violations, defendant contractors may be held similarly liable only if they were in control of the premises "at the time of [the firefighter’s] injury” (General Municipal Law § 205-a). Under the terms of the statute, a contractor may be held liable if employed on the premises or engaged in maintaining or repairing it at the time of the firefighter’s injury (see, e.g., Carroll v Roman Catholic Diocese, 26 AD2d 552, affd 19 NY2d 658; Andreaccio v Unique Parking Corp., 158 AD2d 222; cf., Furch v General Elec. Co., 142 AD2d 8, 14). Since defendant contractors Braun, J.M. Braun Builders and Olivieri had no control over the premises at the time of the injury to the firefighters, having completed their engagements some 12 years prior to that date, the firefighters’ statutory causes of action against them were properly dismissed (see, Furch v General Elec. Co., 142 AD2d 8, 14, supra).

Accordingly, in Zanghi v Niagara Frontier Transp. Commn., the order of the Appellate Division should be affirmed, with costs; in Roquet v Braun, the order of the Appellate Division should be modified in accordance with the opinion herein, with costs to appellants as against respondent Leonard Zane, and, as so modified, affirmed, with costs to the other defendants-respondents as against appellants; and, in Ruocco v New York City Tr. Auth., the order of the Appellate Division should be affirmed, with costs.

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

In Zanghi v Niagara Frontier Transp. Commn: Order affirmed, with costs.

In Raquet v Braun: Order modified in accordance with the opinion herein, with costs to appellants as against respondent Leonard Zane, and, as so modified, affirmed, with costs to the other defendants-respondents as against appellants.

In Ruocco v New York City Tr. Auth.: Order affirmed, with costs.

      . Supreme Court dismissed plaintiffs complaint against Niagara Frontier Transportation Commission on the ground that it was not a party to the lease agreement with Greyhound. The complaint against Niagara Frontier Transit Authority was dismissed as time-barred.

      . Although the Carpet Factory defendants, as tenants in possession at the time of the fire, were parties in control of the premises against whom liability may be asserted under section 205-a, no disposition of their motion to dismiss the complaint against them was made by Supreme Court, and they appeared neither in the Appellate Division nor before this Court. Accordingly, we make no disposition as to those defendants.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    [649 NE2d 1176, 626 NYS2d 32]
    In the Matter of M. John Hosley, Jr., Respondent, v James T. Curry, Individually and as Hamilton County District Attorney, Appellant.
    Argued March 23, 1995;
    decided April 4, 1995

      POINTS OF COUNSEL

      Hancock & Estabrook, Syracuse (Alan J. Pierce and Patrick M. Connors of counsel), for appellant.

      Lustberg and Ferretti, Glens Falls (Joan M. Ferretti of counsel), for respondent.
   OPINION OF THE COURT

Levine, J.

Petitioner commenced this proceeding seeking an order disqualifying respondent from acting in the capacity of Hamilton County District Attorney for failing to satisfy the residency requirements of Public Officers Law §§ 3 and 30. A hearing was held at which petitioner produced three witnesses. The first testified that he had served respondent with the subject petition in the evening at a residence in Warren County, and that respondent was in his nightclothes at the time. The second witness, a Town Justice of the Town of Wells, testified that he kept respondent’s phone numbers in his address book, which included two numbers in Warren County.

Respondent was then called and examined as to his residency. He testified that he was raised in the Town of Indian Lake, Hamilton County, until he left the area in 1960 to attend private school in Lenox, Massachusetts, and college at Cornell University, during which period he claimed Hamilton County as his residence. In 1968, respondent joined a Jesuit religious order in Massachusetts, and thereafter studied at the New England School of Law in Boston from 1974 through 1978. Respondent first registered to vote in Hamilton County in 1969, and voted in the 1970 and 1971 elections. During part of the period he was in Massachusetts, respondent registered and voted in that State.

In 1978, after graduating from law school, respondent moved back to Indian Lake in Hamilton County and reenrolled as a registered voter there. In 1980, respondent secured employment in Saratoga Springs and lived at home with his wife in Glens Falls, Warren County, while maintaining his voter registration at Indian Lake. In 1981, respondent successfully ran for Hamilton County District Attorney for the first time, and the next year he and his wife rented a house on Blue Mountain Lake, Hamilton County, at which time respondent changed his registration to this new address. When his first marriage broke up, respondent resigned from office in 1985 and physically moved to Rensselaer County, changing his registration back to the Indian Lake address. In 1989, respondent moved back to Blue Mountain Lake with his second wife and changed his registration from Indian Lake to Blue Mountain Lake.

In 1990, respondent and his wife purchased a home in Warren County, and began to live there with their daughter. At that time, respondent again changed his registration to the home in Indian Lake, and continued to vote in Hamilton County. In 1992, respondent was again elected Hamilton County District Attorney. Prior to that election, the Hamilton County Board of Elections rejected a challenge to respondent’s voter registration, finding him to be a resident of Hamilton County for voting purposes.

For the years 1976 through 1990, respondent and his mother jointly owned the Indian Lake home. In 1990, the home was deeded to respondent by his mother, subject to her life tenancy. Respondent testified that he frequently visits and periodically stays overnight at the Indian Lake residence with his mother, who is quite ill and in need of care, and that he keeps some personal items there. Respondent also owns a vacant lot in Blue Mountain Lake and has maintained his driver’s license, car registration, notary public commission and Office of Court Administration registration in Hamilton County. He testified that he always intended that the Indian Lake residence be his legal residence for the period in questian, and expressed an intent to eventually return to live full time in Hamilton County.

Supreme Court denied the petition, concluding that petitioner had not met the burden of proof necessary to establish respondent as a nonresident of Hamilton County for purposes of Public Officers Law §§ 3 and 30. The Appellate Division reversed, on the law and the facts, holding that respondent was not a resident of Hamilton County for purposes of the Public Officers Law, and declared a vacancy in the office of District Attorney (207 AD2d 116). This Court granted leave to appeal, and we now reverse.

Public Officers Law § 3 (1) provides that "[n]o person shall be capable of holding a civil office who shall not * * * [be] a resident of the political subdivision v * * of the state for which he shall be chosen”. Public Officers Law § 30 (1) (d) further provides that "[e]very office shall be vacant upon * * * [the incumbent’s] ceasing to be an inhabitant * * * of the political subdivision * * * of which he is required to be a resident when chosen”. The terms "resident” and "inhabitant” in these provisions are properly understood to be synonymous with domicile (see, Matter of Aiello v Power, 9 Misc 2d 523, affd 4 AD2d 833, affd 3 NY2d 892; Matter of Larkin v Herbert, 185 AD2d 607; see also, 1974 Opns Atty Gen 213; cf., Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36, 47 ["residence” in Election Law also treated as synonymous with domicile]).

For a change to a new domicile to be effected, there must be a union of residence in fact and an "absolute and fixed intention” to abandon the former and make the new locality a fixed and permanent home (Matter of Newcomb, 192 NY 238, 250-251; see also, Matter of Palla v Suffolk County Bd. of Elections, supra, at 47). "Mere change of residence although continued for a long time does not effect a change of domicile, while a change of residence even for a short time with the intention in good faith to change the domicile, has that effect” (Matter of Newcomb, supra, at 250). Indeed, "[m]otives are immaterial, except as they indicate intention” (id., at 251). An existing domicile, whether of origin or selection, continues until a new one is acquired, and a party, as petitioner here, alleging a change in domicile has the burden to prove the change by clear and convincing evidence (id., at 250-251; Matter of Aiello v Power, 9 Misc 2d, at 527, supra; Matter of Larkin v Herbert, supra, at 608).

We conclude that petitioner has failed to satisfy this heightened burden in the instant case. As noted above, evidence of respondent’s move to Warren County alone is insufficient to extinguish his domicile (and, therefore, his "residence” for purposes of Public Officers Law §§ 3 and 30) in Hamilton County. Rather, it was incumbent on petitioner to present clear and convincing evidence of respondent’s present, definite and honest purpose to abandon the Hamilton County domicile and make the Warren County residence his fixed and permanent home (see, Matter of Newcomb, supra). The evidence was insufficient for this purpose. On the contrary, the evidence— including respondent’s continuous voting record in Hamilton County since 1978 — demonstrated his long-standing and continuous connection with Hamilton County, bespeaking an intent to maintain the Indian Lake residence as his fixed and permanent residence for all purposes (see, Matter of Gallagher v Dinkins, 41 AD2d 946, affd 32 NY2d 839).

Indeed, even if petitioner is correct in asserting that respondent’s motive is to maintain his connection with Hamilton County for political purposes, that fact would support rather than detract from his professed intention to retain his Hamilton County domicile (see, Matter of Newcomb, supra, at 251; Matter of Larkin v Herbert, supra, at 608). Moreover, the Board of Elections’ prior determination, statutorily deemed presumptive evidence of respondent’s residence for voting purposes (Election Law § 5-104 [2]; see, Matter of Bressler v Holt-Harris, 37 AD2d 898, affd for reasons stated below 30 NY2d 529), is entitled to weight in this context. On the basis of this record, we conclude that Supreme Court’s determination that petitioner failed to sustain his burden more nearly comports with the weight of the evidence (see, Matter of Ferguson v McNab, 60 NY2d 598).

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring respondent to be a resident of Hamilton County for purposes of Public Officers Law §§ 3 and 30 and reinstating him to the position of District Attorney of of Hamilton County.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Ciparick concur with Judge Levine; Judge Smith dissents and votes to affirm for reasons stated in the opinion by Justice Karen K. Peters at the Appellate Division (207 AD2d 116).

Order reversed, etc.


author: Bellacosa, J.

text:
    [649 NE2d 1179, 626 NYS2d 35]
    In the Matter of Shaida W. and Others, Children Alleged to be Neglected. Frances W., Respondent; Commissioner of Social Services of the City of New York, Respondent; Lenore Gittis, as Law Guardian, Appellant.
    Argued March 29, 1995;
    decided April 27, 1995

      POINTS OF COUNSEL

      Marcia Egger, New York City, Carol Sherman and Patricia Nevergold for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Jane S. Earle and Leonard Koerner of counsel), for Commissioner of Social Services of the City of New York, respondent.

      Farber, Segall & Pappalardo, White Plains (John A. Pappalardo of counsel), for Frances W., respondent.

      Mitchell Wendell and Diana L. Fogle, of the District of Columbia Bar, admitted pro hoc vice, for Association of Administrators of the Interstate Compact on the Placement of Children, amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

This case implicates the scope of Family Court’s authority to terminate New York State’s financial assistance, official custodial and over-all supervisory responsibilities with respect to five children placed in the temporary foster care of their maternal grandmother. They all moved to California in 1992.

The legal question presented narrows to whether Family Court’s dismissal of petitions from the New York City Social Services Commissioner for extension of foster care placements, based solely on the recommendation of a California caseworker in that receiving State, violates the Interstate Compact on the Placement of Children (L 1960, ch 708; codified as Social Services Law § 374-a [1]).

We conclude that it does and that an authorized "discharge” of New York’s jurisdiction was not effected under Social Services Law § 374-a (1), article V (a). We further conclude that Family Court’s consequent severance of New York’s responsibility for these children does not satisfy the safety net protections of article V (a) of the Interstate Compact (Social Services Law § 374-a [1], art V [a]). Since none of the "discharging” events specified by the statute occurred, Family Court lacked a basis to terminate New York’s jurisdiction and jettison the responsibility for these children (see, Social Services Law § 374-a [1], art V [a]).

In 1989, petitioner New York City Commissioner of Social Services commenced neglect proceedings on behalf of Shaida W., Kamar S., Asha W., Alyssa W., and Maila W. Family Court, Bronx County, found their mother, respondent Frances W., guilty of neglect based on her drug use. The Family Court also ordered the children placed in the Commissioner’s care and custody for up to 18 months pending the mother’s completion of a residential drug treatment program. The Commissioner subsequently placed the children in foster care with their maternal grandmother, Alma W., who lived in the Bronx at that time.

In 1990, respondent gave birth to another child, Keenan W., who tested positive for cocaine. New neglect petitions were filed. After making new findings of neglect in 1991, Family Court extended the placement of the five children with the petitioner Commissioner for 12 months. Keenan W. was discharged to Alma W. in July 1992 and is not involved in this appeal.

In January 1992, Alma W. moved to San Diego, California. The Commissioner officially authorized the children to remain with Alma W. in California as New York protected foster children. The San Diego Department of Social Services child welfare authorities undertook local supervision subject to the legal responsibility of the New York authorities. The California caseworker was required to report to a New York City Child Welfare Administration caseworker (see, NY City Child Welfare Admin Report to Judge Weinstein, at 1 [July 30, 1992]).

In April 1992, when Family Court found grounds for permanent neglect, it extended placement for another 12 months and ordered the Commissioner to file a petition for termination of parental rights within 90 days. A 90-day report, prepared by the New York City Child Welfare Administration caseworker pursuant to Family Court Act § 1055 (b) (vi), noted that steps to initiate termination of the mother’s parental rights had begun. The report added that, according to a San Diego caseworker report, the mother had also moved to San Diego and appeared to be making progress towards rehabilitation.

A March 1993 letter to the New York City caseworker from the San Diego caseworker described the improving condition of the mother and "recommend[ed]” that New York "terminate dependency over the minors” based upon the mother’s alleged willingness to resume caring for the children (County of San Diego Dept of Social Servs Letter to NY City Child Welfare Admin [Mar. 15, 1993]). That same month, New York City’s Commissioner filed petitions for extension of placements for the five children, stating that the children would need continued services and support from New York until their mother was ready to resume care or until their grandmother, Alma W., adopted them.

At a March 31, 1993 hearing on the petitions before Family Court, the New York City caseworker recommended a 12-month extension. This recommendation was based on further conversations with the San Diego caseworker, which raised questions concerning the mother’s ability and willingness to undertake the care of the five children. Contrary to the New York City caseworker’s recommendation, the Family Court indicated its preference that the proceedings be terminated and that New York State’s jurisdiction be relinquished. Family Court relied substantially on the San Diego caseworker’s recommendation that New York conclude its role over the children, since "the family” was in California. The Family Court then adjourned the proceedings until April 12, so that the Law Guardian might follow up with the San Diego caseworker.

At the April 12, 1993 hearing, the court dismissed the petitions, notwithstanding the Law Guardian’s insistence that long-term planning for the children had not been completed and that failure to extend the placements would be contrary to the children’s best interests. Family Court commented that it was "ridiculous” for New York to be paying benefits for individuals who had been residing in another State for more than two years. The court further opined that should the family need public benefits, it could apply in California.

The Law Guardian obtained a stay of the Family Court order from the Appellate Division and filed an appeal. Petitioner Commissioner did not appeal separately, but filed an affirmation ratifying the Law Guardian’s position. Assigned counsel for the respondent mother initially filed a brief supporting the Family Court determination that the children should be discharged from foster care. That brief was later withdrawn with an indication that the mother did not want the children discharged to her at that time. The Appellate Division affirmed, finding the limitations on termination under Social Services Law § 374-a (1), article V (a) inapplicable, by virtue of an exception in Social Services Law § 374-a (1), article VIII (a).

We granted the Law Guardian leave to appeal to this Court from the Appellate Division order. The Commissioner again stands by the Law Guardian’s position on behalf of the children. The case is thus in the unusual procedural posture of having no one supporting the determinations of the courts below. Also, we take judicial notice that since the Appellate Division issued its determination, respondent mother’s circumstances appear to have deteriorated, as she has been incarcerated and must undergo another six-month drug rehabilitation program.

The Interstate Compact (L 1960, ch 708), codified in Social Services Law § 374-a, was designed to promote cooperation among States in providing each child with "the maximum opportunity to be placed in a suitable environment * * * with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree [and type] of care” (Carrieri, Practice Commentaries, McKinney’s Cons Laws of NY, Book 52A, Social Services Law § 374-a, at 461-462; see also, Mem of Joint Legis Comm on Interstate Cooperation, Bill Jacket, L 1960, ch 708). The enacted Compact was designed to give a receiving State opportunity to ascertain the circumstances of a proposed change of legal placement, thus promoting compliance with applicable requirements by a sending State for a child’s protection (Mem of Joint Legis Comm on Interstate Cooperation, Bill Jacket, L 1960, ch 708). One of the purposes behind the statute was to promote "appropriate jurisdictional arrangements for the care of the children involved” (Mem of Jud Conf of State of NY, Bill Jacket, L 1960, ch 708) and to put proper procedural safeguards into effect (see, Mem of Joint Legis Comm on Interstate Cooperation, Bill Jacket, L 1960, ch 708). The Interstate Compact was designed to prevent States from unilaterally "dumping” their foster care responsibilities on other jurisdictions.

At issue here are article V (a) and article VIII (a) of the Interstate Compact, which prescribe, respectively, (1) the framework for the sending State’s continued responsibilities for a child sent elsewhere; and (2) exceptions to the applicability or continuance of the Interstate Compact’s limitations.

Article V (a) of the Compact contains explicit conditions under which a sending State’s and agency’s responsibilities for a child may cease and be transferred. It provides, in pertinent part:

"The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency’s state, until the child is adopted, reaches majority, becomes self-supporting or is discharged with the concurrence of the appropriate authority in the receiving state. * * * The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement” (Social Services Law § 374-a [1], art V [a] [emphasis added]).

"Sending agency” is defined as a "party state, officer or employee thereof; a subdivision of a party state, * * * or other entity which sends, brings, or causes to be sent or brought any child to another party state” (Social Services Law § 374-a [1], art II [b]). "Receiving state” is defined as "the state to which a child is sent, brought, or caused to be sent or brought” (Social Services Law § 374-a [1], art II [c]).

Article VIII (a) articulates exceptions to the strictures of the Interstate Compact. It specifies that the Compact shall not apply to "[t]he sending or bringing of a child into a receiving state by his [or her] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his [or her] guardian and leaving the child with any such relative or non-agency guardian in the receiving state” (Social Services Law § 374-a [1], art VIII [a]).

The controversy in this case, thus, splits into two interrelated inquiries: (1) whether article V (a) of the Interstate Compact is applicable, given that the children went to San Diego with their grandmother (see, Social Services Law § 374-a [1], art VIII [a]); and (2) whether the San Diego caseworker’s “recommendation” constitutes a “discharge[ ] with the concurrence of the appropriate authority in the receiving state,” which might qualify for relinquishment of New York’s supervisory and financial obligations towards these foster children.

Regarding the first inquiry, we conclude that the limitations of the Interstate Compact are operative with respect to New York’s continuing role. The Appellate Division failed to appreciate that the children were not legally “sent” to California by their grandmother (see, Social Services Law § 374-a [1], art VIII [a]). The official custodian of these children was petitioner, Department of Social Services of New York City. It authorized the children to be “sent,” as that statutory word of art is used, to California with their grandmother. New York’s Department of Social Services alone is the “sending agency” within the meaning of the statute. When the children relocated to California, they were in the “custody” of the New York City Department of Social Services pursuant to a Family Court order (contrast, "guardianship]” under Social Services Law § 374-a [1], art VIII [a]). The Department of Social Services was the agency that was still responsible for their care, and it authorized the transfer in cooperation with San Diego officials. The Department of Social Services, therefore, “sent” the children to California with their grandmother, as New York foster children, to be supervised by the San Diego Department of Social Services child welfare authorities. The California officials were legally obligated to report back to New York City child welfare authorities. Consequently, the Compact applies to the relocation at issue here and protects these foster children.

As to the second prong of the problem, Family Court erred in the substantive termination of New York’s jurisdictian over these children. Social Services Law § 374-a (1), article V (a) expressly provides that only upon the occurrence of specified events will the sending State be deemed released from responsibility — financially and in ultimate supervisory respects — for its foster children. The pertinent triggering event at issue here — concurrence by the appropriate authority —was never achieved. An informal “recommendation” from a caseworker in the receiving State, with respect to which the caseworker later also equivocated, cannot serve as the official authorized concurrence contemplated by the statute. This recommendation was never ratified by the responsible officials of the California child welfare agency, and California never officially accepted responsibility for these children. These five children were thus placed in a bureaucratic limbo with New York’s relinquishment and California’s nonacceptance. The Compact does not allow that crevice to be carved and instead builds a bridge across such a divide.

Allowing the Appellate Division’s affirmance of Family Court’s determination to stand in this case would transgress and undermine the objectives of the Interstate Compact to (1) ensure adequate and maximum opportunity of care for children; (2) promote cooperation between States by providing receiving States with complete information and a full opportunity to assess the situation before deciding whether to undertake the responsibility (see, Mem of Joint Legis Comm on Interstate Cooperation, Bill Jacket, L 1960, ch 708); and (3) preclude sending States from “dumping” their responsibility for children on receiving States without a legally reliable authentication chain (see, Compact Administrator’s Manual, at 3.90).

We have considered the other arguments and conclude that they are without merit under the circumstances presented in this case.

Accordingly, the Appellate Division order should be reversed, without costs, and the petitions for the extension of foster care placements should be reinstated and remitted to Family Court for further proceedings in accordance with this opinion.

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

Order reversed, without costs, petitions reinstated and remitted to Family Court, Bronx County, for further proceedings in accordance with the opinion herein.


author: Simons, J.

text:
    [649 NE2d 1183, 626 NYS2d 39]
    LMWT Realty Corp., Doing Business as Triangle Realty, Respondent, v Davis Agency Inc. et al., Defendants and Third-Party Plaintiffs, et al., Third-Party Defendant. City of New York, Appellant.
    Argued March 23, 1995;
    decided April 27, 1995

      POINTS OF COUNSEL

      Paul Crotty, Corporation Counsel of New York City (Linda H. Young, Pamela Seider Dolgow, Gary F. Morton and Claire Barone of counsel), for appellant.

      Jaroslawicz & Jaros, New York City (David Jaroslawicz and Robert J. Tolchin of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Plaintiff LMWT Realty Corporation is the owner of two adjacent buildings on Manhattan Avenue in the City of New York. The buildings were extensively damaged in a 1990 fire and plaintiff submitted a claim to its insurer, defendant First Central Insurance Company, seeking indemnification for the loss. When the carrier disputed the claim, plaintiff retained the law firm of Jaroslawicz and Jaros on a one-third contingency basis to recover the fire insurance proceeds. The action was settled on the eve of trial for $130,000 but the insurer refused to issue the settlement check because the City of New York had previously served and filed certificates of lien for unpaid property taxes and other charges against the proceeds of the policy pursuant to General Municipal Law § 22.

The attorneys do not dispute the City’s right to the bulk of the fire insurance proceeds under the statute; they contend, however, that the amount of the City’s recovery should be reduced by the amount of their charging lien. We agree with the attorneys that without their efforts, there would be no proceeds against which the City could enforce its special tax lien, because the City has no right of action against the insurer. Equitable considerations thus persuade us that the attorneys’ charging lien should be given priority. Accordingly, we affirm the order of the Appellate Division, which awarded them their attorneys’ fees and expenses.

I

General Municipal Law § 22 (2) authorizes tax districts to file claims for unpaid taxes and assessments against the proceeds of a policy of fire insurance insuring an owner of real property in the district. The claim constitutes a lien against the policy proceeds, which, the statute provides, "shall * * * be prior to all other liens and claims except the claim of a mortgagee of record named in such policy”. The mechanics for perfecting the lien are spelled out in section 331 of the Insurance Law.

Soon after the statute was enacted, the City of New York filed a Notice of Intention to Claim Against Fire Insurance Proceeds with the State Superintendent of Insurance, as the Insurance Law provides, and adopted a resolution enabling the City’s tax enforcement officer to assert its claims for unpaid taxes against the proceeds of a fire insurance policy (see, Administrative Code of City of NY § 11-2801). Thus, when the City was notified by defendant insurer of plaintiff’s claim to insurance proceeds on June 5, 1990, it served the insurer’s adjuster with two certificates of special lien for unpaid taxes and other charges related to the fire-damaged properties, one in the amount of $81,415.43 against 240 Manhattan Avenue and the other in the amount of $43,906.94 against 246 Manhattan Avenue. Thereafter, the City issued amended certificates periodically while plaintiff’s litigation against defendant insurer was pending. By August 1992, shortly after the underlying claim was settled, the unpaid liens totalled $219,841.21.

During this time, plaintiff retained Jaroslawicz and Jaros to pursue an action against the insurer. The agreement setting forth a contingent fee arrangement was signed and the action commenced on September 5, 1990. Just prior to jury selection, defendant made a settlement offer of $130,000, which was orally accepted by plaintiff and memorialized in a proposed stipulation of discontinuance and a release on June 2, 1992. After defendant insurer received these documents, it notified plaintiff’s attorneys that the City had previously served a timely certificate of lien against the proceeds of plaintiff’s fire insurance policy, and refused to issue the settlement check. Plaintiff’s attorneys also learned of the existence of separate, on-going litigation begun in March 1989 between plaintiff and the City regarding the imposition and amount of the tax liens.

Plaintiff then moved for an order compelling defendant insurer to turn over, to its attorneys the amount of their fees and expenses, and to place the balance of the proceeds into an escrow account pending determination of the litigation between plaintiff and the City. The City had not been made a party to the action but it appeared on the return date of the motion and consented to jurisdiction. Supreme Court ultimately granted plaintiff’s motion and directed payment of the attorneys’ fees and disbursements, but ordered that the balance of the proceeds be paid to the City in partial satisfaction of its lien. The Appellate Division affirmed.

II

The City relies on the language of General Municipal Law § 22 (2), which states that the taxing district’s lien is "prior to all other liens and claims except the claim of a mortgagee of record named in [the fire insurance] policy.” By explicitly providing an exception for the mortgagee, the City contends, the Legislature manifested its intent to recognize no other exceptions to the City’s priority. Indeed, even if it be claimed that the language of the statute impliedly excepts the attorney’s lien by defining a lien in section 22 (1) (c) as a "charge imposed upon real property” — which an attorney’s lien is not —the attorneys’ fee still comes within the statutory language, for subdivision (2) makes it clear that once the City’s tax lien against the property is perfected it has priority over "all other liens and claims” against the proceeds (emphasis added). The attorney’s lien constitutes a claim against the proceeds, within the scope of the statute, and the statute provides that it is superseded by the claim of the taxing entity. Thus, the City asserts it is entitled to all the settlement proceeds.

An attorney’s charging lien, however, has not historically been characterized in such a limited manner. Under the common law, the attorney was only entitled to a lien upon the judgment, but the scope of the charging lien was extended by statute to give the attorney a lien upon the client’s cause of action as well. The lien comes into existence, without notice or filing, upon commencement of the action or proceeding (see, Matter of Heinsheimer, 214 NY 361, 367; Fischer-Hansen v Brooklyn Hgts. R. R. Co., 173 NY 492; Judiciary Law § 475). In Matter of City of New York (United States — Coblentz) (5 NY2d 300, 307-308, cert denied sub nom. United States v Coblentz, 363 US 841), we stated that because a cause of action is a species of property, an attorney acquires a "vested property interest” in the cause of action at the signing of the retainer agreement and thus a "title to 'property and rights to property’ ”. Accordingly, the charging lien does not merely give an attorney an enforceable right against the property of another, it gives the attorney an equitable ownership interest in the client’s cause of action. The client’s property right in his own cause of action is only what remains after transfer to the attorney of the agreed-upon share upon the signing of the retainer agreement (Matter of City of New York, supra). Similarly, in People v Keeffe (50 NY2d 149, 156), we noted that with the signing of a retainer agreement that expressly assigns a portion of the proceeds of a cause of action to the attorney, the attorney "acquires * * * a vested property interest which cannot subsequently be disturbed by the client or anyone claiming through or against the client.” Manifestly, then, an attorney’s charging lien is something more than a mere claim against either property or proceeds; an attorney’s charging lien "is a vested property right created by law and not a priority of payment” (Matter of City of New York, 5 NY2d 300, 306, supra).

The City asserts that under the common law a claim may nevertheless supersede an attorney’s lien if the claim is both prior in time and a charge against the specific fund upon which the attorney’s lien attaches, not merely a general indebtedness asserted against the client (see, Bacon v Schiesinger, 171 App Div 503, 504-505 [stating the rule], affd without opn 224 NY 690). Because the City served its certificates of lien on June 15, 1990, and the attorney’s lien did not vest until September 5, 1990, when the retainer agreement was signed, the City has chronological priority and because its lien is specifically against the proceeds of the fire insurance policy, the City maintains, it is entitled to assert that priority.

However, there is an additional equitable factor which is dispositive here: the attorney’s services created the fund at issue, and under those circumstances the attorney’s charging lien must be given effect, even though a prior lien against the specific fund exists. Neither in Bacon v Schiesinger, nor in the handful of cases invoking the rule it stated, was the disputed fund created through the litigation giving rise to the attorney’s lien (see, e.g., Effective Communications W. v Board of Coop. Educ. Servs., 84 AD2d 941).

Our reasoning was foreshadowed in Matter of Herlihy (State Tax Commn.) (274 App Div 342). In that case, the Federal Government had perfected liens for unpaid income taxes against all "property and rights to property” belonging to the plaintiff (id., at 344). When the plaintiff subsequently recovered a sizable settlement as a result of a number of actions brought by his attorney against the plaintiff’s insurance carriers, the Government asserted its right to the entire proceeds of the settlement. In according the attorney’s lien priority, the court ruled that the Government’s liens attached only to the extent of the plaintiff’s right to the proceeds, and that right had been diminished to the extent of the attorney’s charging lien. The rule stated in Bacon v Schiesinger was not at issue in Herlihy because the Government’s tax liens were general in nature; however, the Court specifically noted that because the attorney’s services were "indispensably instrumental” in producing the funds upon which the tax liens attached, it would be in any event inequitable to apply the entire proceeds to the tax payment, particularly since the Government had acquiesced in the litigation and knew — as did the City here — that an attorney’s services were necessary to procure the plaintiffs recovery from his insurers (id., at 346-347).

This result furthers the legislative intent of General Municipal Law § 22. Although the immediate impetus for the statutory enactment was to discourage the owners of dilapidated and tax-delinquent buildings from the increasingly prevalent practice of burning the buildings and pocketing the insurance proceeds, leaving the taxing district with unpaid taxes and only a value-depleted property upon which to foreclose, the statute has in fact a two-fold purpose — to provide for "direct, accelerated and nondiscounted payment” of the fire insurance proceeds to the municipal lienholder, as well as to prevent arson fraud (see, Insurance Co. v City of New York, 71 NY2d 983, 985; Letter of Assemblyman G. Oliver Koppell [initial Assembly cosponsor] to Governor, dated July 28, 1977, Bill Jacket, L 1977, ch 738; Mem of Secretary of State to Governor’s Counsel, id.).

The City has, at best, only a potential and inchoate right to the fire insurance proceeds which can never — in the absence of any statutory authorization for a taxing entity to bring its own suit against the insurer — ripen into recovery in cases such as this, where the carrier refuses to make payment under the policy and does so eventually only because the insured has brought suit. To allow the City to recover the entire fund created by the attorney’s efforts would be inequitable. The charging lien was created by the common-law courts as a device to protect an attorney by "disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained” (see, Goodrich v McDonald, 112 NY 157, 163; see also, Matter of Heinsheimer, 214 NY 361, 365, supra). Although the City is not, of course, the client of the firm of Jaroslawicz and Jaros, the same equitable principle applies.

Finally, the City contends that any inequity can be avoided if an attorney, prior to accepting an insured’s claim against its insurer, rationally evaluates whether the plaintiff is reasonably likely to recover a sum sufficient to satisfy the tax obligation and to pay the attorney’s fee as well. Given the crowded civil dockets of the courts and the often protracted nature of litigation, it is, in practical terms, virtually impossible for an attorney to predict with any degree of certainty the size to which the tax lien, with attendant penalties and interest, may have burgeoned by the time the proceeds of the policy are actually in hand. The end result of the position urged by the City would be frustration, not furtherance, of the legislative purpose of General Municipal Law §22. Understandably, few, if any, attorneys would be willing to pursue the fire insurance claims of tax-delinquent insureds on a contingency basis. Because the deteriorating buildings that are most often the objects of liens imposed pursuant to General Municipal Law § 22 are also often owned by shell corporations with no other assets, the City would in the end be unable to recover a meaningful portion of its outstanding taxes.

We conclude the purpose of the statute and the considerations of equity are both best served by according priority to an attorney’s charging lien when the attorney’s efforts have produced a fund subject to a taxing entity’s special lien imposed on fire insurance proceeds pursuant to General Municipal Law § 22.

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.


text:
    [649 NE2d 1188, 626 NYS2d 44]
    In the Matter of the Claim of Michael Neacosia, Appellant, v New York Power Authority et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued March 21, 1995;
    decided April 27, 1995

      POINTS OF COUNSEL

      Hancock & Estabrook, Syracuse (Robert A. Small of counsel), for Michael Neacosia, appellant.

      Dennis C. Vacco, Attorney-General, New York City (Iris A. Steel, Jerry Boone, Peter H. Schiff, Jane Lauer Barker and Theresa E. Wolinski of counsel), for Workers’ Compensation Board, appellant.

      James J. Fehrer, Rochester, and Raymond C. Green, New York City, for respondents.
   OPINION OF THE COURT

Simons, J.

Claimant Michael Neacosia was employed as a security officer by respondent New York State Power Authority at a nuclear power plant located near Oswego, New York. On May 17, 1991, Neacosia completed his shift at 1:00 p.m. and left the plant in his car. He stopped to deliver his uniforms to Karpinski’s, a dry cleaner in Oswego. The cleaner was one of several recommended by respondent as part of an arrangement by which it provided its guards with uniforms, and required that the uniforms be kept clean and presentable. Although the uniform labels indicated that they could be machine washed, respondent assumed the expense of dry cleaning and maintained and paid directly accounts at the dry cleaning establishments. Alternatively, employees could use other establishments than those recommended and submit receipts to the employer for reimbursement.

After leaving some uniform shirts and trousers at Karpinski’s, claimant headed home along his usual route. During the trip he was involved in an automobile accident and sustained severe injuries. The issue before the Court, broadly stated, is whether his injuries arose out of and in the course of his employment.

Neacosia submitted a claim for workers’ compensation benefits contending that he was injured while "completing a work related trip.” The employer denied liability claiming Neacosia was involved in an accident with his personal vehicle on a public highway outside of work hours. The Law Judge concluded upon stipulated facts that claimant’s travel had a dual purpose which served to extend the scope of his employment, and accordingly awarded him workers’ compensation benefits. Upon review by the Workers’ Compensation Board the award was affirmed.

Respondent and its insurance carrier then appealed to the Appellate Division. A divided Appellate Division reversed, the majority concluding that in the absence of evidence that Neacosia was required to have his uniforms dry cleaned, the Board’s finding was not supported by substantial evidence. The two dissenters believed the employer’s policies with respect to claimant’s uniforms and their maintenance established the requisite nexus between claimant’s employment and his errand to support the claim. Neacosia and the Workers’ Compensation Board appeal to this Court as of right (see, CPLR 5601 [a]).

I

An injury sustained by an employee is compensable under the Workers’ Compensation Law if it "aris[es] out of and in the course of the employment” (see, Workers’ Compensation Law § 10 [1]; § 2 [7]). The general rule is that injuries sustained during travel to and from the place of employment do not come within the statute (see, Matter of Lemon v New York City Tr. Auth., 72 NY2d 324, 327; see also, Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322, 325; Matter of Ousted v Seneca Steel Serv., 41 NY2d 140, 142; Van Gee v Korts, 252 NY 241, 244; 1 Larson, Workmen’s Compensation § 15.00). There are exceptions to this "going and coming” rule, however. For example, an outside employee, such as a travelling salesperson who does not have a fixed worksite, may be compensated for injuries sustained in the course of travel between home and appointments (see, e.g., Matter of Bennett v Marine Works, 273 NY 429), an employee who has engaged in travel for dual purposes — both business and personal — may sustain compensable injuries during travel (see, e.g., Matter of Mahoney v Stern & Co., 9 NY2d 931, revg 9 AD2d 843), and an employee whose home serves as an additional place of employment may also be compensated (see, e.g., Matter of Fine v S.M.C. Microsystems Corp., 75 NY2d 912; Matter of Hille v Gerald Records, 23 NY2d 135).

Claimant relies upon yet another, the "special errand” exception, which provides that when the employee’s travel serves a purpose of the employer, injuries sustained during that travel may be compensable (see, e.g., Matter of Teles v Westbury S & S Concrete, 40 NY2d 902, affg 50 AD2d 954; Matter of Love v N. Y. S. Craig School, 34 NY2d 680, affg 42 AD2d 796; Matter of Watson v American Can Co., 18 NY2d 758, affg 23 AD2d 423; see also, Matter of Bump v Central School Dist. No. 3, 34 NY2d 577, affg on opn below 40 AD2d 243; see generally, 1 Larson, Workmen’s Compensation § 16.10, at 4-204; cf., Matter of Lemon v New York City Tr. Auth., supra; Matter of Broich v New York State Union Coll. of Optometry, 117 AD2d 868, 869). The question on this appeal is whether the special errand exception applies only if, as the Appellate Division held, the employer has expressly required or directed the employee to perform the errand.

A.

The test for determining whether specific activities are within the scope of employment or purely personal is whether the activities are both reasonable and sufficiently work related under the circumstances (Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 249; see, Matter of Capizzi v Southern Dist. Reporters, 61 NY2d 50). Given the remedial nature of the Workers’ Compensation Law, the courts have historically construed this requirement liberally to effectuate the statute’s economic and humanitarian purposes (Matter of Lemon v New York City Tr. Auth., 72 NY2d, at 326, supra; see also, Matter of Smith v Tompkins County Courthouse, 60 NY2d 939, 941; Matter of Holcomb v Daily News, 45 NY2d 602, 607).

Respondents urge us to apply the bright-line rule adopted by the majority at the Appellate Division to find compensable injury only when the employer expressly requires the employee to engage in the particular errand. However, the unpredictable and varied nature of work-related incidents render such claims unsuitable for any arbitrary rule. To attempt to apply a bright-line rule could produce results that are both inconsistent with our existing precedents and with the policy of liberally construing the statute.

Past decisions addressing exceptions to the "going and coming” rule have exhibited a common theme in which the courts have broadly applied considerations involving the nature of the employee’s off-premises travel, whether it inured to the benefit of the employer, and whether the employer encouraged the employee’s conduct. For example, in Matter of Love v N Y. ,S. Craig School (supra) a hospital attendant on a paid leave of absence was injured in an automobile accident while commuting to the nursing school she was attending. Although the claimant obtained an obvious personal benefit from the schooling, the court held that her attendance arose out of her employment because the employer induced her attendance by granting a fully paid leave of absence for education. Moreover, the employer stood to benefit from claimant’s improved skills and knowledge because she had given a commitment to return to work following the schooling. Similarly, a high school teacher involved in a fatal auto accident on his way home from an off-premises night course he attended voluntarily was covered by compensation in Matter of Bump v Central School Dist. No. 3 (supra). Although the teacher was not required to attend the course, his supervisors had approved his attendance, the employer contributed part of the cost, and both employer and employee stood to benefit from the schooling because the employee would acquire knowledge that he could apply to the development of a new curriculum for the school.

Other illustrations can be found in cases involving employee conduct with mixed purposes while off the employer’s premises during the lunch hour, a time when an employee is normally outside the scope of his or her employment (see, e.g., Matter of Watson v American Can Co., 18 NY2d 758, affg 23 AD2d 423, supra). In that case, the employee’s injury was compensable because the employer facilitated the employee’s errand — cashing her paycheck — by making arrangements with the bank to expand its hours and employ extra tellers during lunchtime on paydays, encouraged the errand by "looking the other way” if an employee returned from the bank a few minutes late, and benefitted from the errand because the employer no longer wished to use a cash payroll. In Matter of Goldberg v Gold Medal Farms (18 AD2d 951), it was established that the employer paid for and benefitted from employees taking lunch at a designated restaurant; thus injuries sustained while returning to work from that restaurant were compensable. In Matter of Younger v Motor Cab Transp. Co. (260 NY 396), compensation was awarded to a cabdriver, who divided his fares with his employer, when he parked his cab at an advantageous location and returned to the garage to pick up his paycheck and was fatally injured while returning to his cab. Notably, in the Watson, Goldberg, and Younger cases, none of the claimants were directed or required to perform the particular errand from which they were returning when injured, and each claimant had other options available to accomplish the task undertaken. In each, however, there was encouragement or inducement by the employer for conduct which benefitted the employer.

We have also followed this analysis to both affirm compensation and deny it in cases in which the employer facilitated the employee’s travel between work and home and the employee sustained injuries during the trip (see, Matter of Holcomb v Daily News, 45 NY2d 602, supra; and cf., Matter of Lemon v New York City Tr. Auth., 72 NY2d, at 329, supra; see also, Matter of Murphy v New York City Tr. Auth., 33 NY2d 878, affg 38 AD2d 346; Tallon v Interborough R. T. Co., 232 NY 410).

The rule to be derived from these decisions is that an employee who engages in a work-related errand while travel-ling between work and home, and is injured during that trip, sustains injuries that arise out of and in the course of his or her employment if the employer both encouraged the errand and obtained a benefit from the employee’s performance of the errand. Application of this two-part test assures the legitimacy of the claim that the employee was engaged in the service of his or her employer, as distinguished from having undertaken a personal errand that had some incidental work-related purpose. That the employer obtains some benefit from the employee’s errand will not alone sustain the claim; there must be evidence of affirmative conduct by the employer soliciting or encouraging the errand.

B.

Because the determination whether an injury is compensable turns on the facts of a given case, the Workers’ Compensation Board is afforded "wide latitude” in deciding whether the employee was engaged in a special errand (see, Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 249, supra). Here, the record supports the Board’s conclusion that claimant was engaged in a special errand. He was required by his employer to wear a uniform and to keep it clean and was subject to discipline if he failed to do so. Although the employee could choose various means to clean his uniforms, the employer was not indifferent to how and where the cleaning was done. It encouraged guards to dry clean their uniforms by paying for dry cleaning services and by establishing accounts at selected establishments, such as Karpinski’s. This not only induced employees to use the particular establishments but enabled them to receive free cleaning without the inconvenience of paying cash and submitting receipts for reimbursement. The benefit to the employer is equally apparent. Its security officers presented a neat and clean appearance and claimant’s patronage at Karpinski’s provided the employer with the extra benefit of consolidated accounting, because the employer was saved the inconvenience of reimbursing claimant for cash expenditures.

II

The question remains whether claimant’s employment had terminated prior to the occurrence of the accident, thus foreclosing application of the special errand exception. Respondents contend that once Neacosia left Karpinski’s and started home by his usual route he was no longer engaged in the service of his employer. However, the fact that the employee’s injury occurs on the way home after having completed the work-related errand does not necessarily mean that the employee’s travel is no longer within the scope of employment (see, e.g., Matter of Mahoney v Stern & Co., 9 NY2d 931, revg 9 AD2d 843, supra). Once an employee engages in the performance of a special errand, he or she is considered to be acting within the scope of employment during travel between the place of employment and home (see, Matter of Gray v Lyons Transp., 179 AD2d 985, 986; Matter of Charak v Leddy, 23 AD2d 437, 438; see also, Matter of Weinstein v 16 E. 58th St. Corp., 92 AD2d 678; Matter of Respole v Schorr, 25 AD2d 581; cf., Matter of Oehley v Syracuse Boys Club, 151 AD2d 825). The premise of the rule is that the errand for the employer has altered the usual geographical or temporal scheme of travel, thereby altering the risks to which the employee is usually exposed during normal travel.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.

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

Order reversed, etc.

       The "special errand” exception and the "dual purpose” exception to the general rule of noncompensability of injuries sustained while travelling are to be distinguished. As noted above, the special errand exception may be invoked when an employee, travelling to or from home, has engaged in a work-related errand. The dual purpose exception may apply when an employee is injured in transit to or from a location off the employer’s premises when the employee’s presence at that location served both a business and personal purpose (see, Matter of Hille v Gerald Records, 23 NY2d 135, supra [employee’s home could be considered a place of employment]; Matter of Mahoney v Stem & Co., 9 NY2d 931, revg 9 AD2d 843, supra [out-of-State trip served both personal and business purposes]; see also, Matter of McDonagh v Troyman Chartering, 50 AD2d 301).