author: Chief Judge Wachtler.

text:
    In the Matter of Mobil Oil Corporation, Appellant, et al., Petitioners, v Syracuse Industrial Development Agency et al., Respondents. (And Another Proceeding.)
    Argued June 5,1990;
    decided July 5, 1990

      POINTS OF COUNSEL

      William D. Eggers for appellant.

      Albert M. Ferlo, Jr., and C. Frank Harrigan, Corporation Counsel (Kathleen Joy Callahan of counsel), for respondents.
   OPINION OF THE COURT

Chief Judge Wachtler.

In this article 78 proceeding, we again consider the issue of standing in the context of the State Environmental Quality Review Act (SEQRA) (ECL art 8). The petitioner, Mobil Oil Corporation, brought this proceeding to challenge the adequacy of the environmental review undertaken by respondent, Syracuse Industrial Development Agency (SIDA), in connection with the construction of a shopping mall and to annul SIDA’s approval of the project. SIDA argues that Mobil is without standing to assert a claim based on SEQRA. We agree with SIDA that under the facts present in this case, Mobil lacks standing to contest SIDA’s approval of the project or to argue that its review under SEQRA was incomplete. Accordingly, the order of the Appellate Division should be affirmed.

Oil City, a 750-acre region in the respondent City of Syracuse (City), is located north of the downtown business area and is bounded by Onondaga Lake to the north and by interstate highways to the east, south and west. Mobil owns real property in Oil City and has placed petroleum tanks and distribution terminals there. In the summer of 1987, the Pyramid Company of Onondaga (Pyramid), a private developer that is not a party to this proceeding, announced plans to undertake the redevelopment of Oil City. Pyramid issued a "Lake Development Master Plan” that set forth a scheme for introducing retail, cluster and multiple-family housing and light industrial uses to Oil City. In September of 1987, Pyramid applied to SIDA for the issuance of $120 million in taxable bonds to fund the construction of a 1.4 million square foot shopping mall called Carousel Center. Carousel Center would be located on a 50-acre parcel on the south end of Onondaga Lake, two miles from the central business district of Syracuse.

For purposes of compliance with SEQRA, SIDA undertook the responsibility of acting as lead agency (see, ECL 8-0111 [6]; 6 NYCRR 617.2 [v]). SIDA determined that the construction of Carousel Center was a Type I action under SEQRA, that is, that it was likely to have a significant effect on the environment and could require the preparation of an environmental impact statement (see, ECL 8-0109; 6 NYCRR 617.2 [ii]; 617.11-617.12). Pyramid prepared a draft environmental impact statement (DEIS), which SIDA accepted in November of 1987. SIDA scheduled a public hearing for November 30, 1987, and established a deadline of December 14, 1987, for the submission of written comments on the DEIS. In response to objections raised at the public hearing, SIDA had Pyramid prepare a supplemental DEIS, which SIDA accepted as complete on January 5, 1988. SIDA extended the period for public comment until February 8, 1988. On March 23, 1988, SIDA issued an 11-volume final environmental impact statement that consisted of more than 2,800 pages of text and technical material. On April 12, 1988, SIDA issued a statement of findings and gave its final approval to the Carousel Center project.

In June of 1988, SIDA and the City entered into an agreement with Pyramid for a payment in lieu of taxes (PILOT). In addition to providing a detailed schedule of payments that was tied to the completion and operation of Carousel Center, the PILOT agreement obligated SIDA to use PILOT funds to construct a series of improvements that would lead to the redevelopment of the harbor and marina areas of Oil City. The PILOT agreement also provided for the financing of infrastructure improvements in the Franklin Square district within Oil City, as part of a separate redevelopment project that is itself the subject of SEQRA review. This June 1988 agreement was superseded by a second PILOT agreement that became effective on August 24,1989.

On July 20, 1988, Mobil, along with Sun Refining & Marketing Company and Citgo Petroleum Corporation, commenced an article 78 proceeding against SIDA and the City in which they sought to annul: (1) SIDA’s resolution approving Pyramid’s request for funding of Carousel Center; (2) SIDA’s statement of findings with respect to Carousel Center; (3) SIDA’s review of the Carousel Center project under SEQRA; and (4) any action undertaken by SIDA or the City in connection with the Carousel Center project. In an amended petition, the petitioners additionally sought to set aside Ordinance No. 380 of 1988, which was adopted by the City’s Common Council in connection with the project, and to annul the June 1988 PILOT agreement. Permission was granted to add the Belcher Company of New York as a petitioner on one of the causes of action and to add the members of the Common Council as respondents.

The petitioner’s principal argument was that SIDA had improperly truncated its review of the Carousel Center project by failing to consider the secondary and cumulative effects of future development in Oil City. The petitioners contended that the construction of Carousel Center was merely the first step in what was an extensive plan for redevelopment of the entire area. Further, the petitioners alleged that Pyramid’s plans for the redevelopment of Oil City had been facilitated by the respondent Common Council’s adoption of enabling legislation and by the signing of the June 1988 PILOT agreement. According to the petitioners, SIDA’s review of the Carousel Center project should have considered the other plans for Oil City development that were already in existence, and SIDA’s failure to do so was an improper segmentation of the SEQRA review process.

The respondents countered that the petitioners’ allegations of harm were speculative because redevelopment of Oil City was in a conceptual stage and there were no formal proposals for future action before SIDA or any other agency. The respondents argued that to the extent that the petitioners’ allegations of harm related to development that was still in its planning stages and not to Carousel Center specifically, there was no showing of injury in fact for purposes of according the petitioners standing to challenge SIDA’s review and approval of the Carousel Center project.

Supreme Court, Onondaga County, granted the respondents’ motion to dismiss. Taking the petitioners’ allegations that SIDA had improperly segmented the SEQRA review process as true for purposes of the motion to dismiss (see, e.g., Matter of Burke v Sugarman, 35 NY2d 39, 42), the court nonetheless held that Mobil lacked standing to challenge SIDA’s compliance with SEQRA because Mobil had not demonstrated that it had suffered injury in fact. The court held that the other three oil companies also lacked standing because they had not exhausted their administrative remedies. A second article 78 proceeding seeking similar relief, brought by Citizens’ League for an Environmentally Acceptable Northeast, Inc., was also dismissed at this time. Mobil alone appealed, and the Appellate Division, Fourth Department, affirmed for the reasons stated at the Supreme Court. We now affirm.

In Matter of Dairylea Coop. v Walkley (38 NY2d 6), we set forth a two-part test for determining when a party has standing to contest administrative action. As we held in that case, a petitioner needs to "show that the administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute.” (Id., at 9.) In Matter of Sun-Brite Car Wash v Board of Zoning & Appeals (69 NY2d 406), we discussed the requirement of injury in fact and noted that "something more than the interest of the public at large is required to entitle a person to seek judicial review — the petitioning party must have a legally cognizable interest that is or will be affected by the * * * determination” (id., at 413). Although we noted in that case that certain petitioners with an especially close relationship to property affected by agency action are presumptively aggrieved by such action and do not have to plead special damages or in-fact injury, we stated as a general principle that "[a]ggrievement warranting judicial review requires a threshold showing that a person has been adversely affected by the activities of defendants (or respondents), or — put another way — that it has sustained special damage, different in kind and degree from the community generally” (id., at 413).

Under the facts present in this case, we believe that Mobil, although a nearby property owner, is not presumptively aggrieved by the Carousel Center project and that it must demonstrate that it has suffered special injury before it can be accorded standing to challenge SIDA’s review of the project. To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature (see, Matter of Niagara Recycling v Town Bd., 83 AD2d 335, 341 [Hancock, Jr., J.], affd 56 NY2d 859; see also, Waebster Assocs. v Town of Webster, 112 Misc 2d 396, 402, affd 85 AD2d 882, revd on other grounds 59 NY2d 220). We agree with the lower court that Mobil has not alleged that it will suffer any specific environmental harm as a result of the redevelopment of Oil City and that Mobil therefore lacks standing to challenge the adequacy of SIDA’s review of the Carousel Center project.

In reaching this conclusion, we need only look at the allegations contained in Mobil’s petition. The injuries pleaded by Mobil, which are classified as "secondary and cumulative impacts of the Lakefront Development Master Plan,” include "the cost to the City of Syracuse of acquiring the Oil City parcels through condemnation, the cost of relocating the tanks currently located in Oil City, the increased cost of fuel to residential, commercial and industrial users resulting from the relocation of the tanks, the adverse effect of these increased fuel costs on the commercial and industrial sectors of the City, and possible loss of employment resulting from increased costs to competitive industries.” Mobil repeats these basic allegations, with some elaboration, in its amended petition dated August 15, 1988. Mobil makes absolutely no showing in its petition that it would suffer any environmental injury as a result of the proposed development; rather, the petition cites only the economic costs to Mobil and to local taxpayers and consumers if Mobil’s facilities are relocated. Mobil’s additional allegation that construction of the mall will adversely affect the downtown business district will not suffice to give Mobil standing either, since there is no showing as to how Mobil, a property owner in Oil City, would be affected by a change in the economic climate of the downtown business district, which is located two miles from Oil City. Finally, we would simply note that, even taking Mobil’s allegations as true, as we must, the economic injuries alleged by Mobil are not related to the Carousel Center project specifically, but rather to a broader plan for redevelopment that, while likely to occur, has not yet been formally submitted to SIDA or any other agency for consideration or approval.

Our recent decision in Matter of Har Enters. v Town of Brookhaven (74 NY2d 524) is consistent with the result we reach today. In Har, we held that a property owner whose land was targeted for rezoning had a "legally cognizable interest in being assured that the town satisfied SEQRA” and that the owner consequently had standing to bring a SEQRA challenge, even absent a showing of specific environmental harm (id,., at 529). Based on our holding in Sun-Brite that a property owner, by virtue of an especially close relationship to the subject property, may have standing to seek judicial review absent a showing of special damages, we stated in Har that "if any party should be held to have a sufficient interest to object [to an inadequate SEQRA review] — without having to allege some specific harm — it is an owner of property which is the subject of a contemplated rezoning.” (Matter of Har Enters. v Town of Brookhaven, supra, at 529.) Indeed, we noted in that case that to deny standing would insulate planning and zoning decisions of the kind involved in Har from judicial review, which would clearly be inimical to the public interest (id.). Here, there is not the same close nexus that was present in Har.

Finally, as to Mobil’s standing to contest the execution of the June 1988 PILOT agreement and the Common Council’s adoption of Ordinance No. 380 of 1988, we agree with the lower court that Mobil has failed to allege that it has suffered any injury as a result of these actions and that Mobil consequently lacks standing to challenge them as well.

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

Judges Simons, Kaye, Alexander, Titone and Bellacosa concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    Leon Da Silva, Respondent, v Antonio Musso et al., Defendants, and Sun Place Realty Corp., Appellant.
    Argued April 26,1990;
    decided June 12, 1990

      POINTS OF COUNSEL

      Samuel Kirschenbaum, Ira Levine and John C. O’Malley for appellant. I.

      Thomas G. Sherwood, Joseph A. Fiore and Benjamin Vinar for respondent.

      Antonio Musso et al., defendants, precluded.
   OPINION OF THE COURT

Titone, J.

This appeal concerns the rights of the parties and the operation of the notice of pendency procedures prescribed by CPLR article 65 after an action seeking to "affect the title to, or the possession, use or enjoyment of, real property” has terminated in a final judgment or order dismissing the claimant’s complaint. Specifically, we are asked to decide whether a purchaser for value who has actual notice that the unsuccessful claimant has appealed may nonetheless take clear title to the property where the claimant’s previously filed notice of pendency was canceled pursuant to CPLR 6514 (a). After considering both the statutory language and the underlying policies, we hold that the purchaser’s actual knowledge of a pending appeal is not legally significant and that, in the absence of an outstanding valid notice of pendency, the owner’s ability to transfer clear title to the disputed property remains unimpaired.

The facts underlying this dispute are fully discussed in our prior opinion (Da Silva v Musso, 53 NY2d 543, 546-547). In brief, in 1978 defendants Musso and Partridge entered into an agreement to sell plaintiff an apartment building located in Queens County. When they reneged on this agreement, plaintiff filed a notice of pendency pursuant to CPLR article 65 and commenced an action for, inter alia, specific performance. This action initially resulted in a judgment directing specific performance, but the Appellate Division subsequently reversed the judgment and dismissed the complaint, holding that specific performance was too drastic a remedy under the circumstances (76 AD2d 879). Plaintiff promptly appealed to the Court of Appeals, but did not obtain a CPLR 5519 stay. Consequently, on motion made under CPLR 6514 (a), his notice of pendency was canceled.

Shortly thereafter, Musso and Partridge contracted to sell the property to defendant Ross Howard Realty Corp., which, in turn, assigned the contract to defendant Uzi Realty Corp., the agent for defendant Sun Place Realty Corp. (Sun Place). It is undisputed that all concerned had actual knowledge of plaintiffs pending appeal. Nonetheless, the transaction was consummated and the property was conveyed to Sun Place on September 1, 1981, some nine days before plaintiffs appeal was scheduled to be argued. The argument went forward as scheduled and on October 20, 1981, this court handed down its decision reversing the Appellate Division order and reinstating the trial court judgment (53 NY2d 543, supra).

Plaintiff subsequently commenced the present action seeking, among other things, a declaration that the deed conveying the property to Sun Place was void in light of the Court of Appeals decision. In response, defendants argued that the cancellation of plaintiffs notice of pendency freed the property from further claims by plaintiff, enabling its owners to convey clear title. The trial court rejected defendants’ argument and granted plaintiff a declaration invalidating Sun Place’s deed. The Appellate Division upheld this result, reasoning that, notwithstanding the cancellation of the notice of pendency, Sun Place took title "subject to” the outcome of plaintiffs appeal because of its actual knowledge of that appeal. We now reach the contrary conclusion and reverse.

Under well-established common-law principles, a purchaser of real property is bound by the consequences of a lawsuit of which he has actual knowledge (see, e.g., Dingley v Bon, 130 NY 607; Patterson v Brown, 32 NY 81; Skeel v Spraker, 8 Paige Ch 182; 7A Weinstein-Korn-Miller, NY Civ Prac If 6501.12, at 65-31-65-32). Additionally, CPLR 6501 authorizes a party who has commenced an action "in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property” to file a notice of pendency against the property and thereby bind a subsequent purchaser to the outcome of the action "to the same extent as if he were a party.” Once the litigation has terminated in a final judgment dismissing the complaint, the status of the notice of pendency is governed by CPLR 6514 (a), which provides for its mandatory cancellation, "upon motion of any person aggrieved,” when either the time for appealing has expired or, notwithstanding the pendency of a timely taken appeal, the enforcement of the adverse judgment or order has not been stayed pursuant to CPLR 5519.

Our analysis begins with the principles governing the effect of final judgments and orders. It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties’ substantive rights, unless and until it is overturned on appeal. Furthermore, while an appeal from a final judgment or order may leave an inchoate shadow on the rights defined therein, those rights are nonetheless fully enforceable in the absence of a judicially issued stay pending disposition of the appeal (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C5519:l, at 184-185; see also, 5 W einstein-Kor n-Miller, op. cit, jf 5011.03, at 50-86-50-87 ["(t)he pendency of an appeal does not render an otherwise final judgment interlocutory”]). Since the ability to transfer clear title is a natural incident of ownership, it follows that when a complaint involving title to or the right to possess and enjoy real property has been dismissed on the merits and there is no outstanding notice of pendency or stay, the property owner has a right to transfer or otherwise dispose of the property unrestricted by the dismissed claim.

This principle is reflected in CPLR 5523, which furnishes the primary remedy for the successful appellant when an unstayed judgment or order that has been wholly or partially enforced during pendency of an appeal is subsequently reversed or modified (see, Siegel, Practice Commentaries, op. cit, C5523:l, at 417). Under that provision, an appellate court "may order restitution of property or rights lost by [enforcement of a] judgment or order, except that where the title of a purchaser in good faith and for value would be affected, the court may order the value or the purchase price restored” (emphasis supplied). The italicized language clearly limits the court’s options to monetary relief in cases where the owner has exercised his rights under the unstayed judgments and transferred the property to a "good faith” purchaser for value. The provision’s effect is to insulate the title of a person who purchased after entry of final judgment from the effects of an appellate reversal, at least in the absence of an outstanding notice of pendency.

Plaintiff does not quarrel with these basic principles, but instead takes the position that a purchaser who has actual knowledge of a pending appeal affecting title to the property does not qualify as one acting with "good faith” within the meaning of CPLR 5523. The argument is belied, however, by the holding in Revelone, Inc. v Arlind Realty Corp. (274 App Div 656, affd 299 NY 667), in which sections 586 and 587 of the Civil Practice Act, the predecessors to CPLR 5223 and 6514 (a), were construed. In that case, the court held in circumstances analogous to these that a purchaser with actual knowledge of a claimant’s pending appeal nonetheless acquired clear title where the conveyance occurred at a time when there was no outstanding notice of pendency. Although, as the courts below noted, the statutory language relied on in Revelone was altered when the CPLR was adopted, no substantive change in the principle established in Revelone was intended or wrought. To the contrary, the Advisory Committee Report to the Legislature specifically cited the Revelone decision and stated with respect to CPLR 5523 that "Although the wording of section 587 is shortened, no other change is intended” and that "[t]he words 'purchaser in good faith and for value’ have been retained verbatim in order to leave unaltered existing case law interpreting them” (Second Preliminary Report of NY Advisory Comm on Practice and Procedure, 1958 NY Legis Doc No. 13, at 342 [emphasis supplied]). Thus, the conclusion is inescapable that, under both the former and the present statutory provisions, the "good faith” of a purchaser who has acquired the property for value during the pendency of a claimant’s appeal is not vitiated by the purchaser’s actual knowledge of the appeal.

Notably, this conclusion comports with sound policy, as well as with the language of the applicable statutes. It is true, as the Appellate Division suggested, that the primary purpose of the notice of pendency procedure set forth in CPLR article 65 is to furnish a substitute for actual notice of pending litigation. However, the specific statutorily prescribed mechanisms for implementing this provisional remedy — as well as the provisions for staying enforcement of judgments and orders pending appeal — were designed with a view toward balancing the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title. The latter interest should not lightly be cast aside, since the claim on which the notice of pendency is based need not necessarily be a meritorious one (see, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C6501:2, at 439) and the existence of an outstanding notice of pendency unquestionably impairs the owner’s ability to sell the property for its full market value.

Thus, CPLR 6501 permits a plaintiff who has commenced an action potentially affecting title to or the use and enjoyment of real property to file a notice of pendency, and thereby impair its marketability, as a matter of right; but CPLR 6515 gives the court the discretionary power, in certain defined instances, to order the plaintiff to give an undertaking to secure the defendant against "the damages that he may incur” by virtue of the outstanding notice of pendency. CPLR 6514 (a) serves an analogous function for postjudgment litigation. The statute authorizes the continuance of the notice of pendency even though the plaintiff’s claim has initially been rejected; but it conditions the plaintiff’s right to impair the marketability of the property during the pendency of an appeal upon the issuance of a discretionary CPLR 5519 (c) stay. Thus, both before and after judgment, there exists statutory provision for judicial oversight to protect the property owner’s legitimate interests.

To adopt the position plaintiff advocates would be to sanction the circumvention of these protective procedures. If, as plaintiff argues, a purchaser’s actual notice of a pending appeal constitutes a lack of "good faith” within the meaning of CPLR 5523, there would be no need for an unsuccessful claimant to take the necessary steps to preserve his notice of pendency by obtaining a stay of the adverse judgment during the pendency of his appeal. Instead, the same result could be achieved by simply ascertaining the identity of potential purchasers and notifying them that an appeal was pending. In this manner, despite having lost on the merits in the court below, the appealing claimant could interfere with the marketability of the defendant owner’s property without experiencing the inconvenience and practical difficulties of having to obtain a judicial stay and, quite possibly, having to give an undertaking to secure the owner against loss. Neither the relevant statutes nor the common-law rules governing the parties’ póstjudgment rights may be invoked to require such an unjust conclusion.

In summary, once a final judgment or order dismissing the plaintiffs complaint has been entered, the plaintiff has no further right to restrain the free transfer of the property that was the subject of the complaint unless he has followed the statutorily prescribed procedures for continuing the previously filed notice of pendency. In cases where a postjudgment motion to cancel the notice of pendency has been made, the plaintiff must satisfy the conditions of CPLR 6514 (a) by showing either that the time for appealing has not yet expired or that an order staying the judgment’s enforcement has been issued under CPLR 5519. If neither of these conditions is met and the notice of pendency is canceled, as the statute mandates, the plaintiff can claim no further interest in the property itself and cannot acquire any such interest by virtue of the purchaser’s actual knowledge of the pending appeal. Such a plaintiff must content itself with the remedies afforded by CPLR 5523, i.e., restoration of the value or purchase price already paid, in the event of an appellate reversal.

Here, although plaintiff took a timely appeal from the adverse Appellate Division order, he neglected to obtain a CPLR 5519 stay pending appeal. As a result, his notice of pendency was properly canceled and his right to claim a direct interest in the property that was the subject of the appeal was lost. Consequently, he cannot now complain because this court’s order restoring the trial court’s judgment for specific performance can no longer be enforced and he is relegated to other remedies that are less satisfactory to him.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted in favor of defendant declaring that (1) the deed transferring ownership of the subject real property to defendant Sun Place Realty Corp. is valid and (2) plaintiff has no claim to the ownership, possession or use of the property.

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

Order reversed, with costs, and judgment granted declaring in favor of defendant-appellant.

      . This filing procedure was adopted to mitigate the harshness of the former common-law rule, which bound the purchaser to the outcome of litigation pending at the time of the purchase, regardless of whether the purchaser had actual knowledge of, or even the practical means to discover, the existence of the pending action (see, Murray v Ballou, 1 Johns Ch 566, 576; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C6501:l, at 438; see also, 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313, 318-319).

      . Section 586 of the former Civil Practice Act provided that when a judgment dismissing a complaint seeking specific performance of a contract to convey real property has been dismissed, the defendant owner "shall have the same right to sell [the property] as though no appeal had been taken, unless the appellant shall file * * * a written undertaking in a sum fixed by the court * * * to the effect that the appellant, in case the judgment appealed from shall be affirmed, will pay to such owner such damages as he may suffer by reason of such appeal * * *. Such undertaking may be filed at any time during the appeal, but any sale of such real estate * * * in good faith and for a valuable consideration, after said judgment and before the filing of such undertaking, shall be as valid as if such undertaking had not been filed.”

      . Section 587 provided generally that an appellate court could order "restitution of property, or of a right, lost by means of [an] erroneous judgment or order * * * but not so as to affect the title of a purchaser in good faith and for value. When property has been sold, the court may compel the value or the purchase price to be restored”. (Emphasis added.)

      . Section 586 of the former Civil Practice Act (see, n 3, supra) had a similar effect, in that it required the unsuccessful claimant to take some further action in order to preserve his notice of pendency until final resolution of the appeal. The practical operation of this statute, however, was somewhat different from its modern counterparts, CPLR 6514 (a) and 5519 (c). Under section 586, the plaintiff had a right to the continuance of the notice of pendency, presumably without regard to the appeal’s merit, as long as he posted the judicially mandated bond. Concomitantly, the giving of an undertaking in some amount was an absolute, statutorily mandated condition precedent to the continuance of the notice of pendency. The present statutes contemplate a more flexible approach. Rather than specifically requiring an undertaking, CPLR 6514 (a) merely requires that the appellant obtain a CPLR 5519 stay. Since the appellant in these cases will ordinarily not be able to rely on any of the grounds for “automatic” stays set forth in CPLR 5519 (a), he is relegated to seeking a discretionary stay under CPLR 5519 (c) (but see, Marat Corp. v Abrams, 41 Misc 2d 965 [erroneously relying on an extrastatutory procedure based upon CPLR 5519 (a) (2)]). Under that provision, there is no entitlement to a stay and, indeed, the court considering the stay application may consider the merits of the appeal (see, Wilkinson v Sukiennik, 120 AD2d 989; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C5519:4, at 188). Further, although the court may order that an undertaking be filed to secure the respondent against damages in the event of an affirmance (see, Lancaster v Kindor, 64 NY2d 1013; Kager v Brenneman, 52 App Div 446, affd 165 NY 674), it need not do so. Nonetheless, the property owner’s rights are adequately protected, since the court entertaining the application is duty-bound to consider the relative hardships that would result from granting (or denying) a stay (see, Siegel, Practice Commentaries, op. cit., C5519:4, at 188).

      . We reject plaintiffs alternative argument that defendants Musso and Partridge had no power to convey the property to Sun Place because they had previously filed an executed deed with the Queens County Clerk as security for a proposed stay pending their own appeal to the Appellate Division. Since the deed was never accepted by the court as adequate and proper security, it cannot be deemed binding on defendants under the facts of this case.


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Rojelio Ortiz, Appellant.
    Argued April 24,1990;
    decided June 7, 1990
    POINTS OF COUNSEL

      Carol Grumbach and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Tierney M. Carlos and Susan L. Valle of counsel), for respondent.
   OPINION OF THE COURT

Alexander, J.

Defendant, convicted of criminal sale of a controlled substance in the third degree, assigns error to the trial court’s refusal to instruct the jury as to the agency defense. We conclude that such instruction was not warranted because no reasonable view of the evidence would support a finding that defendant, who directed a potential purchaser to a seller of narcotics, was acting as an agent of that purchaser.

Defendant was arrested in the course of a "buy and bust” operation conducted on Morris Avenue in the Bronx on January 6, 1986. According to the trial testimony, Undercover Officer Jacqueline Cortes approached defendant’s codefendant Salvador Cedeno and asked for "coke”. Cedeno told her to "wait around” and entered an apartment building at 1921 Morris Avenue. While waiting, Officer Cortes struck up a conversation with a woman standing outside the building and learned the price of the cocaine. During this time, Cortes observed two or three people approach defendant, who was standing in front of the building a few feet away. Cortes testified that when individuals approached defendant, he would converse with them and point to the building; she could not, however, hear their conversations. Cortes and the woman from whom she had learned the price of the cocaine walked over to defendant and Cortes asked, in Spanish, for cocaine. According to Cortes, defendant said "go right in, go straight in” and pointed to the building. The other woman also asked for cocaine and was told to follow Cortes.

Cortes went into the front hallway of the building where four to six other individuals were standing in line waiting to purchase cocaine from Cedeno. When it was her turn, Cortes purchased two vials of cocaine for $10 in prerecorded buy money. Cedeno gave the money to another man, who assisted in the sales and whom the police did not apprehend. After the purchase, Cortes left the building and radioed a description of Cedeno and defendant to her backup team. While waiting in front of the building for the backup to arrive, Cortes watched defendant direct an unspecified number of people into the building. Cedeno and defendant were subsequently arrested, but the prerecorded buy money was not recovered. A small amount of marihuana and cocaine was found on defendant.

Defendant was tried on charges of possession and sale of controlled substances, but the possession counts were dismissed before the case was submitted to the jury. Supreme Court denied defendant’s request for an instruction on the agency defense and defendant was convicted, on a theory of accessorial liability, of criminal sale of a controlled substance in the third degree (see, Penal Law § 220.39 [1]; § 20.00). The Appellate Division affirmed the conviction, without opinion, and a Judge of this court granted leave to appeal. We now affirm.

In reviewing defendant’s request for an instruction on the agency defense, the trial court was required to view the trial evidence in the light most favorable to the defendant and to give the instruction if "some evidence, however slight * * * supports] the inference that the supposed agent was acting, in effect, as an extension of the buyer.” (People v Argibay, 45 NY2d 45, 55; see, People v Padgett, 60 NY2d 142, 144; People v Roche, 45 NY2d 78, 86, cert denied 439 US 958; People v Watts, 57 NY2d 299, 301.) Where, however, no reasonable view of the evidence supports a finding of the defense, the issue need not be submitted to the jury (People v Watts, 57 NY2d, at 301, supra).

As we have often noted, the theory of the agency defense is that one who acts solely as an agent for the buyer of narcotics cannot be convicted of the crime of selling those narcotics, notwithstanding that the act of transferring drugs to another falls within the statutory definition of "sell” (People v Lam Lek Chong, 45 NY2d 64, 72, cert denied 439 US 935; People v Argibay, 45 NY2d, at 53-54, supra; People v Sierra, 45 NY2d 56, 60; see, Penal Law § 220.00 [1]). This is because our penal statutes are directed primarily at the sellers rather than the buyers of narcotics and, in all but the largest sales, impose more severe penalties upon a seller of drugs than upon a buyer who possesses them (People v Lam Lek Chong, 45 NY2d, at 72-83, supra; see generally, Penal Law art 220). The agency defense is consistent with the legislative scheme because it requires that one who acts solely as an agent for a buyer of narcotics should incur no greater criminal liability than that of the buyer (People v Lam Lek Chong, 45 NY2d, at 73-74, supra).

The. agency defense is not susceptible of meticulous definition (People v Roche, 45 NY2d, at 87 [Breitel, Ch. J., Jones and Wachtler, JJ., concurring]) and whether a particular defendant has acted only as an agent for the buyer is a factual question for the jury, which may consider such factors as "the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction.” (People v Lam Lek Chong, 45 NY2d, at 75.) Thus the question of whether a defendant was entitled to an instruction on the agency defense turns on whether, under all the circumstances, the defendant can be said to have acted solely on behalf of the buyer such as to be a mere extension or instrumentality of the buyer.

Defendant argues that, viewed in the light most favorable to him, there is a reasonable view of the trial evidence to support the conclusion that he acted as an agent of the buyer by directing her to the seller of cocaine. He argues that he did not overtly peddle the cocaine or otherwise promote its sale, that there was no evidence that he profited from the transaction and that at best, the People’s proof established only that he was familiar with a drug establishment in the neighborhood and good naturedly provided a tip to the buyer.

Even this generous view of the trial evidence, however, does not permit the inference that defendant acted on behalf of the

buyer as the buyer’s agent. Defendant’s only contact with the buyer was his response to a single question as to where to purchase cocaine; defendant concedes that he had no relationship with the buyer prior to directing her to the seller and had, in fact, provided the same service to several other potential buyers. Defendant did not procure the drugs for the buyer nor arrange or participate in the sale. Therefore, the agency instruction was properly denied.

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

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

Order affirmed.


author: Hancock, Jr., J.

text:
    In the Matter of Steuben County Department of Social Services, Appellant, v Gregory E. Deats, Respondent.
    Argued June 5,1990;
    decided July 2, 1990

      POINTS OF COUNSEL

      Frederick H. Ahrens, Jr., County Attorney (Mary Hope M. Benedict of counsel), for appellant.

      Amy L. Christensen for respondent.

      Robert Abrams, Attorney-General (Clifford A. Royael, O. Peter Sherwood and Peter H. Schiff of counsel), in his statutory capacity under section 71 of the Executive Law.
   OPINION OF THE COURT

Hancock, Jr., J.

Two questions are presented concerning the responsibility of an unwed father for medical expenses incurred in connection with the birth of his child: (1) whether an unwed father may be required to reimburse the Department of Social Services for the expenses paid on behalf of the mother, and (2) whether an unwed father’s liability for the expenses paid on behalf of the child depends upon the father’s ability to pay at the time those expenses were incurred.

Following an order of filiation declaring respondent to be the father of a child born out of wedlock, the Steuben County Department of Social Services sought reimbursement from him for the Medicaid payments it made for the medical care of both the mother and the child in connection with the birth. Pursuant to the parties’ stipulation of facts, the matter was submitted to a Family Court Hearing Examiner who directed respondent to reimburse the department in full. Thereafter, Family Court denied respondent’s objections except to correct a minor monetary miscalculation.

On appeal, the Appellate Division unanimously reversed with regard to payments on behalf of the mother (147 AD2d 943). The court held that Federal law did not permit recoupment of such expenses from an unwed father because he is not a relative of the mother. The court also held that respondent’s liability for his child’s birth expenses was contingent upon his ability to pay at the time, and it remanded the question to Family Court for a factual determination. On remand, Family Court determined that respondent was unable to pay for those expenses when incurred and, therefore, in accord with the Appellate Division’s direction, it held that respondent was not liable for them. Because we agree with the Appellate Division with regard to the child’s expenses, but not the mother’s, we now modify.

I

Medicaid, a joint Federal-State program designed to provide medical care for persons "whose income and resources are insufficient to meet the costs” (42 USC § 1396), imposes conditions upon participating States as set forth in the Social Security Act (42 USC § 1396 et seq.). A State must "take all reasonable measures, to ascertain the legal liability of third parties * * * to pay for care and services available under the plan” (42 USC § 1396a [a] [25] [A]), and, whenever medical assistance is provided to an eligible recipient, the State must "seek reimbursement” from such third parties (42 USC § 1396a [a] [25] [B]). In fact, every person seeking Medicaid assistance is required to assign to the State his or her rights to medical expenses from any "third parties” and to cooperate with the State in seeking recoupment of those expenses from them (42 USC § 1396k [a] [1] [A], [B]; see also, Social Services Law § 366 [4] [h]).

These provisions reflect a congressional policy of keeping Medicaid "the payer of last resort” — i.e., insuring that all "other available resources * * * be used before Medicaid pays for the care of an individual enrolled in the Medicaid program” (Sen Rep No. 146, 99th Cong, 1986 US Code Cong & Admin News, at 279; see also, 55 Fed Reg 1423-1424; New York State Dept. of Social Seros, v Bowen, 846 F2d 129, 133). Hence, "third-party” liability under the Social Security Act is intended to secure recovery of the medical expenses paid for eligible recipients whenever "someone else has fiscal liability” (Sen Rep No. 744, 90th Cong, 1967 US Code Cong & Admin News, at 3022). The relevant Federal regulations, consistent with that objective, define "third party” to include "any individual * * * that is or may be liable to pay all or part of the expenditures for medical assistance furnished under a State plan” (42 CFR 433.136 [3]). And in this State, by statute, an unwed father is such a "third party”.

Family Court Act § 514 specifically makes a "father”, whether or not wed to the mother, "liable to pay the reasonable expenses of the mother’s confinement and recovery and * * * reasonable expenses in connection with her pregnancy”. Similarly, Family Court Act § 545 authorizes a court that has made an order of filiation to direct the father — or the mother or both parents — of an out-of-wedlock child to pay such expenses. There is no dispute among the parties here that these provisions generally permit the recovery from an unwed father of the mother’s medical expenses. But respondent argues that sections 514 and 545 cannot apply to such expenses when paid under Medicaid, because Federal statutory and regulatory law governing that program does not permit it. We disagree.

Specifically, respondent contends that, as a matter of Federal law, an unwed father is not a "responsible relative” of the mother from whom Medicaid expenditures paid on her behalf, in connection with the birth of their out-of-wedlock child, may be recovered. Respondent relies on a Federal statutory provision governing the determination of an applicant’s Medicaid eligibility (42 USC § 1396a [a] [17] [D]) and on a regulation limiting the class of individuals who can be required to reimburse State agencies for the Medicaid expenditures paid on behalf of their relatives (42 CFR 435.602). Contrary to respondent’s contention, neither of these provisions precludes the operation of the New York statutes in question.

Under 42 USC § 1396a (a) (17) (D), a State Medicaid plan must provide medical assistance to an otherwise eligible person regardless of "the financial responsibility of any individual for [that person,] unless [that person] is such individual’s spouse or such individual’s child who is under age 21 or * * * blind or * * * disabled”. The implementing regulation, 42 CFR 435.602, entitled "Limitation on the financial responsibility of relatives”, elaborates on the statutory scheme. It provides that, "[e]xcept for a spouse of an individual or a parent for a child who is under age 21 or blind or disabled”, the State may not "[c]onsider income and resources of any relative * * * nor * * * [c]ollect reimbursement from any relative [emphasis added]”. The purpose of these provisions, particularly evident from the language of the regulation, is to prevent a State from requiring contributions for medical assistance, solely on the basis of familial relationship, other than from the spouse or parent of the Medicaid recipient. It was the view of Congress in enacting 42 USC § 1396a (a) (17) (D) that, although a State could properly place financial responsibility for medical care upon an available spouse or parent, "[b]eyond such degree of relationship * * requirements imposed are often destructive and harmful to the relationships among the members of the family group” (Sen Rep No. 404, 89th Cong, 1965 US Code Cong & Admin News, at 2018 [emphasis added]).

To conform New York’s law to these Federal limitations, the Legislature narrowed the class of "responsible relatives” who could be compelled under the Social Services Law* to contribute to the support of an individual in need of medical assistance or to reimburse the State for medical assistance already provided to that individual. Social Services Law § 101, governing the liability of relatives to provide support, was amended in 1966 to exempt all but the spouse of a public assistance recipient and, where the recipient is a minor, his parent (see, L 1966, ch 256, § 18). The Governor’s message in support of the amendment echoed the congressional purpose in limiting the scope of familial-based liability: "These far reaching limitations on the financial responsibility of relatives for support of the needy would lift an often heavy burden on those obligated to pay for assistance under existing State laws. Experience has shown that the financial responsibility of a broad class of relatives, imposed by statute, is more often a destructive, rather than cohesive, factor in family unity” (1966 NY Legis Ann, at 327 [emphasis added]).

It is undisputed that respondent is not related to the mother in this case; the two have never been married. Respondent cannot, therefore, be required, as a "responsible relative” within the meaning of the foregoing Federal and State provisions, to pay for the mother’s medical expenses. But the department is not seeking reimbursement from him on that basis, and there is nothing in those Federal or State provisions that precludes recovery from an unwed father on some other legitimate ground. The statutory and regulatory restrictions relied on by respondent do no more than narrow the class of individuals on whom familial-based liability can be imposed. They in no way negate the liability of other "third parties” from whom the States must, as Medicaid participants, seek reimbursement (see, 42 USC § 1396a [a] [25] [A], [B]; § 1396k [a] [2] [A], [B], discussed, supra). And nothing in those provisions precludes a State from statutorily declaring a father— whether or not wed to the mother — to be such a "third party” with regard to the mother’s pregnancy and childbirth expenses. That is all this State does under sections 514 and 545 of the Family Court Act — the authority under which the department has sought reimbursement from respondent.

Moreover, if the Federal and State provisions were read as respondent urges, important policies underlying the Medicaid program would not be served. Categorically exempting unwed fathers from liability for the mother’s birth expenses would not further the policy of relieving most relatives — qua relatives — of an otherwise familial burden. Also, contrary to the unmistakable intent of Congress and this State’s Legislature, exempting unwed fathers would free such statutorily recognized "third parties” from any liability for medical expenses for which they, in fact, share responsibility. There, thus, appears no reason to believe that the liability imposed on unwed fathers under Family Court Act §§514 and 545 is precluded by Federal law.

II

With regard to the birth expenses provided on behalf of the child, we agree with the Appellate Division that an unwed father’s liability to make reimbursement for such expenses depends upon his ability to pay at the time of the birth. Although as a "responsible relative” of the child, a father is liable under both Federal and State law for his child’s medical expenses (see, 42 USC § 1396a [a] [17] [D]; Social Services Law §§ 101, 366 [2] [b]), recovery of those medical expenses from him is permitted under State statute only if he had sufficient means to pay for them when they were incurred.

Social Services Law § 366 (3) (a) directs the Department of Social Services to furnish medical assistance to an applicant, even if he or she has a "responsible relative with sufficient income and resources to provide medical assistance”, in any case where the "responsible relative” is either absent or refuses or fails to help. In those situations, "the furnishing of such assistance [to the applicant] shall create an implied contract with such relative”, obligating the relative to reimburse the department for its expenses. On the other hand, no such "implied contract” is created under section 366 (3) (a) where the "responsible relative” is without sufficient income and resources at the time the department furnishes the assistance to his child (see, Matter of Dabney, 104 AD2d 678, 679; Forman v Forman, 96 AD2d 880, 881; Matter of Hackett v Haynes, 70 AD2d 1051, 1052; Matter of Colon, 83 Misc 2d 344, 348, 351).

To be sure, as the department argues, it cannot consider, the income and resources of an unwed, nonadjudicated father when determining the Medicaid eligibility of his child at birth. But that has no bearing on the father’s ultimate liability for his child’s birth expenses or on the department’s authority to recover them from him once fatherhood has been adjudicated (see, 42 USC § 1396a [a] [17] [D]; 42 CFR 435.602; Social Services Law §§ 101, 366 [2]). Likewise, it has no bearing on when the "implied contract” for reimbursement is created under Social Services Law § 366 (3) (a). That contract is created, if at all, when the department furnishes assistance to a child and, at the same time, the father has sufficient income and resources to provide assistance himself.

Finally, that the father’s ability to contribute to the costs of the child’s birth care may subsequently increase is of no moment under section 366 (3) (a). The statutory obligation of a father to reimburse the department for Medicaid expenditures on behalf of his child is expressly established upon the "furnishing of such assistance” — in this case, at the time of the child’s birth. Inasmuch as it was determined below that, at that time, respondent did not have "sufficient income and resources” under Medicaid eligibility standards (see, Social Services Law § 366 [3] [a]; see also, § 366 [2] [b]; 18 NYCRR 360-4.7, 360-4.8), no "implied contract” was created obligating him to pay the department for the birth expenses of his child.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review, should be modified, without costs, by reinstating so much of the original order of Family Court as directed respondent to reimburse petitioner for benefits paid on behalf of the mother and, as so modified, affirmed.

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

Judgment appealed from and order of the Appellate Division brought up for review modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

        See, Social Services Law § 366 (3), which provides, in part:
      "(a) Medical assistance shall be furnished to applicants in cases where, although such applicant has a responsible relative with sufficient income and resources to provide medical assistance as determined by the regulations of the department, the income and resources of the responsible relative are not available to such applicant because of the absence of such relative or the refusal or failure of such relative to provide the necessary care and assistance. In such cases, however, the furnishing of such assistance shall create an implied contract with such relative, and the cost thereof may be recovered from such relative * * *
      "(b) The provisions of this subdivision shall not be construed to diminish the authority of a social services official to bring a proceeding * * * (1) to compel any responsible relative to contribute to the support of any person receiving or liable to become in need of medical assistance, or (2) to recover from a recipient or a responsible relative the cost of medical assistance not correctly paid.” (Emphasis added.)


author: Hancock, Jk., J.

text:
    In the Matter of Bayswater Realty & Capital Corp., Appellant, v Planning Board of the Town of Lewisboro, Respondent.
    Argued June 6, 1990;
    decided July 10, 1990

      POINTS OF COUNSEL

      Henry M. Hocherman, Robert F. Davis and Geraldine N Lewis for appellant.

      Charles B. McGroddy for respondent.

      Terry Rice for New York Planning Federation, amicus curiae.

   OPINION OF THE COURT

Hancock, Jk., J.

Must a Town Planning Board in approving a cluster subdivision plat accept the open spaces created by the clustering process in satisfaction of its requirement that the developer either provide recreational land or pay a fee in lieu thereof? We hold that the Planning Board’s authority is not so limited and that — provided it makes the determinations called for by Town Law § 277 (1) to the effect that additional recreational land is, in fact, needed in the town and that such need will not be met by open lands created within the plat itself— the Board may demand the substitutional monetary payment pursuant to Town Law § 277 (1) even though, under the authority of Town Law § 281 (d), it is also requiring the developer to set aside the open lands resulting from the cluster.

In this case, the Appellate Division properly rejected petitioner’s contention that the open space reserved under the terms of the Planning Board’s approval of its cluster subdivision under section 281 (d) necessarily satisfies any recreational land or "in lieu” payment condition which the Planning Board could impose under section 277 (1). The court, therefore, correctly held that the Planning Board was not precluded from requiring both a permanent reservation of the open space under section 281 (d) and a recreation fee under section 277 (1) (see, Matter of Bayswater Realty & Capital Corp. v Planning Bd., 149 AD2d 49, 55). Because the Planning Board did not make the determinations called for by section 277 (1) before imposing the recreation fee, however, there must be a remand to the Planning Board for further consideration and, if appropriate, for required findings.

I

Petitioner owns a 227-acre parcel of land in the Town of Lewisboro, New York. In 1984, it sought approval from the Town Planning Board of a proposed conventional subdivision plat for the parcel showing 142 lots. As a result of several discussions between petitioner and the Planning Board, it was eventually determined that the applicable density requirements would permit a conventional subdivision of no more than 115 lots. Neither petitioner’s original proposal nor any of the subsequent revisions made provision for land to be reserved for park, playground or other recreational use.

Thereafter, petitioner submitted a proposal for approval of the parcel as a cluster subdivision pursuant to the authority granted by the Lewisboro Town Board to the Planning Board to modify the applicable provisions of the town zoning ordinance pursuant to Town Law § 281 in approving residential subdivision plats. The number of lots (115) for the 227 acres under the revised proposal was the same. Although the proposed cluster plat still complied with the prevailing density restrictions in the town zoning ordinance, the area of each lot was reduced below the minimum required for a conventional subdivision under the governing minimum area standards. The resulting open space (60.2 acres), generated by the reduction in lot size, was shown within the proposed plat on seven noncontiguous parcels of open lands. Ninety percent of the site’s wetlands were in these open spaces where, it appears, the development’s storm water retention basins and other drainage facilities were to be located. The open spaces, in greater part, consisted of either wetlands or steep slopes.

On July 21, 1987, the Planning Board gave final approval to petitioner’s proposed cluster plat. Under the conditions of the approval resolution, petitioner became bound by a declaration of covenants and restrictions to provide for the perpetual reservation of the 60.2 acres of open space including a foot trail system affording access to portions of the open space to town residents. Condition No. 25 of the approval resolution requires that petitioner pay a "recreation fee” in accordance with the Lewisboro Land Development Regulations.

None of the recitations or other provisions in the Town Board’s final approval resolution contains a finding that the proposed subdivision presents a "proper case” for requiring a park or parks suitably located for playgrounds or other recreational purposes within the town or that the open spaces set aside in the proposal are not of sufficient size or of the character to fulfill such requirement (see, Town Law § 277 [1]).

On August 27, 1987, petitioner commenced the instant CPLR article 78 proceeding seeking to annul that part of the Planning Board’s approval resolution requiring payment of the recreation fee. Supreme Court agreed with petitioner’s argument that the open lands set aside as part of its approved cluster subdivision satisfied any obligation to pay a recreation fee. The court accordingly annulled condition No. 25, holding, on the authority of Matter of Kamhi v Planning Bd. (89 AD2d 111, 127, revd on other grounds 59 NY2d 385) and Kanaley v Brennan (119 Misc 2d 1003, 1012, affd 120 AD2d 974), that the Planning Board could not impose a fee where it also required the permanent reservation of open lands as a condition of its approval of the subdivision under Town Law § 281. The Supreme Court adhered to this reasoning in denying respondent’s motion for renewal and reargument. Because it concluded that the Planning Board lacked any authority to impose a recreation fee, Supreme Court did not address questions relating to the characteristics of the 60.2 acres of open space or to the Planning Board’s failure to make findings as a prerequisite to its imposition of a recreation fee under Town Law § 277 (1).

The Appellate Division unanimously reversed and dismissed the petition. It reasoned that, while the "open land which invariably remains after clustering has been accomplished may result in the preservation of esthetically compelling natural surroundings * * * the framers of the Town Law sought to confer upon municipalities the flexibility to require —within the parameters imposed by section 277 — the reservation of land which furthers the particular recreational needs of the community in question.” (149 AD2d 49, 56.) With respect to petitioner’s proposal, the court concluded that the 60.2 acres of " 'open space’ resulting from the present clustering process [could not] be perceived as a viable substitute for the reservation of suitable parklands within the meaning of Town Law § 277.” (Id., at 56.)

The Appellate Division dismissed petitioner’s alternative argument that the resolution imposing the recreation fee under section 277 (1) was deficient because of the Planning Board’s failure to make the findings required under that section. It theorized that the Planning Board’s "conclusion that a fee was due and owing clearly signifie[d] its intent” (149 AD2d, at 56, n 3) to make such findings and obviated any need for remittal.

We now modify by remitting the matter to Supreme Court with directions to remand to the Planning Board for further consideration.

II

Before addressing petitioner’s argument that the Planning Board was without power to impose the recreation fee, we observe that the powers which the Town Board is authorized to grant to the Planning Board to modify zoning restrictions under section 281 were intended to be used with and to supplement the powers given to the Planning Board in approving subdivisions under other sections of article 16 of the Town Law (see, Matter of Kamhi v Planning Bd., 59 NY2d 385, 390-392, supra). Cluster development is an optional planning technique permitting Planning Boards to exercise greater flexibility in subdivision approval for the purpose of achieving more efficient use of land containing unusual features (e.g., the wetlands and steep slopes in petitioner’s land), for facilitating economical provision for streets and utilities, as well as for preserving the natural and scenic qualities of open lands (Town Law § 281; see, Matter of Kamhi v Planning Bd., 59 NY2d 385, 390, supra; see generally, 5 Rathkopf, Zoning and Planning § 65.04 [1990]). Under the section 281 clustering process, the Planning Board may, in its discretion, in order to further such purposes, permit deviation from applicable minimum area, side and rear yard, depth, and frontage requirements. But the Board may not permit any deviation from over-all density requirements (see, Town Law § 281 [b]) or from other applicable statutory and zoning ordinance standards including use restrictions (see, Matter of Kamhi v Planning Bd., supra, at 390).

We have specifically noted that the Planning Board, in approving a plat under section 281, may exercise powers granted in other sections of article 16 of the Town Law, including section 277 (see, Matter of Kamhi v Planning Bd., supra, at 391). Thus, we dismiss any suggestion — implicit in petitioner’s argument and its citation of Matter of Kamhi v Planning Bd. (89 AD2d 111, 127, supra) and Kanaley v Brennan (119 Misc 2d 1003, 1006-1007, affd 120 AD2d 974, supra)— that merely because section 281 does not contain a provision specifically authorizing the requirement of a recreation fee payment, the Planning Board lacked the power to impose such a requirement in this case.

The essence of petitioner’s argument that there was no authority to impose a fee requirement in the circumstances here is this: because the Planning Board, in approving the cluster subdivision, exercised its authority to require petitioner to reserve "lands available for park, recreation, open space, or other municipal purposes” under section 281 (d), it could not, in addition, condition its approval on payment of a recreation fee in lieu of requiring "a park or parks suitably located for playground or other recreational purposes” under section 277 (1). Petitioner argues, in effect, that the 60.2 acres of open space required to be set aside by the Planning Board under section 281 (d) are, as a matter of law, the equivalent of "a park or parks suitably located for playground or other recreational purposes” which the Board is empowered to require under section 277 (1). Therefore, petitioner maintains, by setting aside the 60.2 acres it satisfied whatever obligation for recreation or playground areas the Board could properly impose under section 277 (1).

But the power of the Planning Board to require that a plat show park, playground or recreational areas under section 277 (1) is not equivalent to the power it possesses under section 281 (d) to attach conditions to the ownership, use or maintenance of open lands when exercising discretion to modify minimum lot area standards in the clustering process. While both section 277 (1) and section 281 (d) are intended to serve the general aim of fostering the preservation of open lands, the provisions are designed to address different societal needs. While they may be employed simultaneously, they operate independently.

Section 277 (1) gives the Planning Board an additional planning control device to be used as a means of reserving lands needed by the broader community for park and recreational purposes (see, Jenad, Inc. v Village of Scarsdale, 18 NY2d 78, 83-85). The section represents a legislative reaction to the threatened loss of open land available for park and recreational purposes resulting from the process of development in suburban areas and the continuing demands of the growing populations in such areas for additional park and recreational facilities (see, Jenad, Inc. v Village of Scarsdale, supra, at 84; see generally, 2 Anderson, New York Zoning Law and Practice §§21.18, 21.19 [3d ed]). The park and recreational needs which section 277 (1) is designed to meet are those of the town or the community at large — not the isolated needs within the subdivision, itself.

In exercising its powers under section 277 (1), the Planning Board, in approving a conventional subdivision, may, in a proper case, require that the plat itself show parklands suitable for playground or other recreational use. When, however, a particular subdivision does not have land of sufficient size or of the proper character to be set off and committed for the town’s recreation and playground requirements, section 277 (1) provides that the developer may be directed to pay a sum of money in lieu of such commitment (see, Riegert Apts. Corp. v Planning Bd., 57 NY2d 206, 210). It is significant that if such "in lieu” payment is permitted, the statute specifies that the sum paid "shall constitute a trust fund to be used by the town exclusively for neighborhood park, playground or recreation purposes including the acquisition of property” (Town Law § 277 [1] [emphasis added]). From this provision, it is evident that the primary concerns addressed by section 277 (1) are the present and anticipated future requirements of the town or broader community, not the subdivision alone.

In contrast, the conditions which the Planning Board is empowered by the Town Board to attach under section 281 (d) relate to the open space inside the subdivision resulting from the exercise of the Planning Board’s authority to modify the conventional subdivision plat by reducing the minimum area and other requirements for individual lots. The concern is with assuring that the open lands thus created within the proposed plat through clustering are preserved as such and not built upon and that if any of such lands are available "for park, recreation, open space, or other municipal purposes directly related to the plat” (§ 281 [d] [emphasis added]), that they be kept open and maintained for such purposes.

The authority granted under section 281 (d) gives the Planning Board a means of establishing permanent control over the open lands generated by the clustering process by attaching "conditions on [their] ownership, use, and maintenance” in return for the Planning Board’s discretionary relaxation of the zoning restrictions which makes the clustering possible. Not surprisingly, since the focus of section 281 (d) is on the preservation of open lands within the subdivision and not with meeting the present and future requirements of the broader community, the Planning Board is not authorized under section 281 (d) (as contrasted with section 277 [1]) to allow payment of money in lieu of setting aside the open space created by the cluster (see, Matter of Kamhi v Planning Bd., 89 AD2d 111, 127, revd on other grounds 59 NY2d 385, supra). Obviously, if it were otherwise and the statute permitted the Planning Board to accept money in return for freeing the open lands for development by waiving any controls or restrictions it might otherwise impose under section 281 (d), the Board could increase the permitted density of the subdivision in contravention of section 281 (b).

Thus, we conclude that the Planning Board’s powers under section 281 (d) to attach conditions to open lands and to require under section 277 (1) that a plat show parklands available for playground or other recreation purposes are not mutually exclusive (cf, Riegert Apts. Corp. v Planning Bd., 105 Misc 2d 298, 301-302, affd 78 AD2d 595, revd on other grounds 57 NY2d 206, supra). In a "proper case”, where it has made the necessary findings, the Planning Board is not precluded from exercising its powers under both sections 277 (1) and 281 (d) with respect to the same subdivision.

Ill

The question remains whether condition No. 25, requiring the payment of the recreation fee, must be annulled, in any event, because the Planning Board did not make the findings necessary to trigger its authority to require a payment in lieu of setting aside park or recreation lands under section 277 (1). Petitioner argues that the Appellate Division erred in holding that the Planning Board’s action imposing the payment requirement "signifies its intent to so find” (149 AD2d, at 56, n 3), thereby making findings unnecessary. We agree with petitioner.

The Planning Board made no findings as required by section 277 (1), although the language is mandatory. Manifestly, the Legislature could not have intended to give Planning Boards unrestricted power to impose at whim on developers the requirement that they set aside lands or pay money in lieu thereof. Indeed, such unlimited authority would conflict with the basic rule that there must be a showing of a sufficient nexus between the imposition of such a financial burden on a private party and the public benefit to be achieved therefrom (see, Kamhi v Town of Yorktown, 74 NY2d 423, 430).

Before the Planning Board may exercise its authority to impose a payment requirement in lieu of setting aside lands under section 277 (1), it must make two determinations with respect to the proposed plat: (1) that a "proper case” exists for requiring the developer to show on the plat "a park or parks suitably located for playground or other recreational purposes”, and (2) "that a suitable park or parks of adequate size [to meet the requirement] can not be properly located in any such plat or is otherwise not practical” (§ 277 [1]).

In the ordinary situation where a conventional subdivision plat is submitted, the Planning Board first determines whether there is a "proper case” for requiring the developer to show parklands "suitably located for playground or other recreational purposes” (§ 277 [1]) within the boundaries of the subdivision. Such determination requires an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth to which, of course, the particular subdivision development will contribute.

Assuming that- it finds that the town needs additional park and recreation space, the Planning Board must then decide whether to make the developer provide such space within the proposed plat (thus reducing the number of permitted lots in the subdivision) or pay money as a substitute. This determination necessarily entails an assessment of the size and suitability of any areas within the subdivision plat which could be possible locations for park and recreation facilities as well as the consideration of practical factors including whether there is a need for additional facilities in the immediate neighborhood.

Where, as here, the Planning Board has acceded to the request of the developer that it modify lot size requirements to permit a cluster subdivision, the considerations, except for one, are the same. There may be areas within the open spaces created by the clustering process which are suitable for park, playground or other recreational purposes. If so, the Planning Board must consider the potential contribution of these areas to the town’s recreation needs in determining whether additional recreational land is required (§277 [1]). If, despite the contribution of the open spaces created through the clustering process, the Planning Board finds that additional recreational land is still needed, the town is not precluded — contrary to the implication in the Appellate Division decision (149 AD2d, at 54-55, n 2) — from requiring, pursuant to section 277 (1), that the developer provide additional land or pay a fee in lieu thereof.

Accordingly, the order of the Appellate Division should be modified, with costs to petitioner, by remitting the matter to Supreme Court with directions to remand to the Planning Board for further consideration in accordance with this opinion, and, as so modified, affirmed.

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

Order modified, etc.

      . Town Law § 281, insofar as pertinent here, provides:
      "Approval of plats; conditions for changes in zoning provisions "The town board is hereby empowered by resolution to authorize the planning board, simultaneously with the approval of a plat or plats pursuant to this article, to modify applicable provisions of the zoning ordinance, subject to the conditions hereinafter set forth and such other reasonable conditions as the town board may in its discretion add thereto. * * * The purposes of such authorization shall be to enable and encourage flexibility of design and development of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provision of streets and utilities, and to preserve the natural and scenic qualities of open lands.”
      By resolution dated September 4, 1973, the Lewisboro Town Board authorized the Planning Board to modify applicable provisions of the town zoning ordinance pursuant to section 281, simultaneously with the approval of residential subdivision plats, subject to the conditions in section 281 and to the conditions set forth in the resolution.

      . The imposition of such a restriction on the open lands created through the clustering process is one of the conditions specifically authorized under Town Law § 281 (d), which, in pertinent part, provides: "In the event that the application of this procedure results in a plat showing lands available for park, recreation, open space, or other municipal purposes directly related to the plat, then the planning board as a condition of plat approval may establish such conditions on the ownership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes.”

      . Land Development Regulations §§ 44.11 (general standards for reservations for parks and playgrounds) and 44.15 (fee in lieu of reservation) grant authority to the Planning Board to require reservation of land for park or playground purposes or payment of a fee in lieu thereof. Land Development Regulation §44.11 essentially tracks Town Law §277 (1) which, in pertinent part, provides: "Before the approval by the planning board of a plat showing lots, blocks or sites, with or without streets or highways, or the approval of a plat already filed in the office of the clerk of the county wherein such plat is situated if such plat is entirely or partially undeveloped, such plat shall also show in proper cases and when required by the planning board, a park or parks suitably located for playground or other recreational purposes. If the planning board determines that a suitable park or parks of adequate size can not be properly located in any such plat or is otherwise not practical, the board may require as a condition to approval of any such plat a payment to the town of a sum to be determined by the town board, which sum shall constitute a trust fund to be used by the town exclusively for neighborhood park, playground or recreation purposes including the acquisition of property” (emphasis added).
      Land Development Regulation §44.15 provides that the amount of the fee in lieu of land reservation is to be determined by the Town Board. Pursuant to section 44.15, the Town Board had fixed the amount of the fee for the type of land involved here at $5,000 per lot. The total fee for petitioner’s subdivision, as presently computed, is $570,000: $5,000 for each of the 114 lots added by virtue of the subdivision to petitioner’s original one lot (see, brief of petitioner-appellant, at 2, n 3).


text:
    The People of the State of New York, Appellant, v Peter Menchetti, Respondent.
    Argued June 1,1990;
    decided September 19, 1990

      POINTS OF COUNSEL

      Kevin M. Dillon, District Attorney (Louis A. Haremski and John J. DeFranks of counsel), for appellant.

      Vincent F. Gugino, Linda S. Reynolds and Barbara Davies Eberl for respondent.
   OPINION OF THE COURT

Alexander, J.

This appeal requires us to consider the circumstances under which a criminal defendant may waive indictment consistent with the requirements of article I, § 6 of the State Constitution and article 195 of the Criminal Procedure Law. We conclude that because a defendant is held for the action of a Grand Jury on both the offense charged in the felony complaint as well as its lesser included offenses, a waiver of indictment by plea to a superior court information charging only a lesser included offense comports with the constitutional and statutory requirements and therefore that defendant’s waiver of indictment was effective.

I

After an incident in which defendant fired a gun during an altercation on a public street, he was charged in a felony complaint with criminal possession of a weapon in the third degree. At his arraignment before a Supreme Court Justice, sitting as a local criminal court, defendant waived a felony hearing on the charge and was held for the action of a Grand Jury. In accordance with plea negotiations that day, defendant executed a waiver of indictment and agreed to be prosecuted by superior court information charging criminal possession of a weapon in the fourth degree. Such an information was filed, defendant pleaded guilty to that charge and was sentenced.

The Appellate Division reversed and dismissed the superior court information, reasoning that the information was jurisdictionally defective because it did not charge the same offense as the offense charged in the felony complaint. A Judge of this court granted the People leave to appeal.

II

On this appeal, defendant challenges the superior court information to which he pleaded, arguing that it is defective because it charged an offense different from that in the felony complaint. Specifically, the felony complaint charged defendant with third degree criminal possession of a weapon and the information charged fourth degree criminal possession of a weapon. Alternatively, defendant argues that even if the information may properly charge a lesser included offense of that charged in the complaint, the information in this case is defective because fourth degree criminal possession of a weapon is not a lesser included offense of third degree possession. The Appellate Division, relying on People v Heme (110 Misc 2d 152) held the information jurisdictionally defective because, in its view, both article I, § 6 of the Constitution and CPL 195.20 require that the information charge the same offense as that charged in the felony complaint (People v Menchetti, 154 AD2d 886). We disagree and conclude that the Constitution and statute require only that the information charge an offense for which the defendant was held for Grand Jury action, and that such an offense includes a lesser included offense of one charged in the felony complaint.

In 1974, article I, § 6 of the State Constitution was amended to provide a single exception to the constitutional requirement that a person charged with an infamous offense be prosecuted by indictment. As amended, section 6 provides that "a person held for the action of a grand jury upon a charge for [an infamous] offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his counsel.”

To implement this constitutional amendment, the Legislature enacted CPL article 195 (L 1974, ch 467). Consistent with the language of the Constitution, the statute provides that waivers of indictment are permissible only when a local criminal court has held the defendant for Grand Jury action, the defendant has not been charged with a class A felony, and the District Attorney consents (CPL 195.10 [1]). CPL 195.10 (2) provides that the waiver must occur in either "(a) the local criminal court in which the order was issued holding the defendant for action of the grand jury, at the time such order is issued; or (b) the appropriate superior court, at any time prior to the filing of an indictment by the grand jury.” CPL 195.20, in accordance with article I, § 6, provides that the waiver of indictment must be evidenced by a written instrument which lists the offenses to be charged in the superior court information. Moreover, the statute further provides that "[t]he offenses named may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith” (CPL 195.20).

The purpose of both the constitutional amendment and the implementing statute is "to allow a defendant who wishes to go directly to trial without waiting for a grand jury to hand up an indictment to do so” (Mem of State Executive Dept, 1974 McKinney’s Session Laws of NY, at 2006, 2007; see also, 1973 NY Legis Ann, at 6). In so doing, the defendant can obtain a speedier disposition of the charges against him and the State is spared the time and expenses of unnecessary Grand Jury proceedings (Mem of State Executive Dept, 1974 McKinney’s Session Laws of NY, at 2007; see, People v D’Amico, 76 NY2d 877 [decided today]). Thus although the constitutional requirement of prosecution by indictment implicates the personal rights of the defendant as well as a fundamental public right (People v Boston, 75 NY2d 585; Matter of Simon- son v Cahn, 27 NY2d 1; People ex rel. Battista v Christian, 249 NY 314), it was hoped that this waiver procedure would "speed disposition of serious cases and help to clear congested court calendars, without infringing upon the defendant’s basic rights or the right of society to adequate protection” (1971 Public Papers of Gov Rockefeller, at 49, 1151, 1152 [1971 Ann Message to Legislature]).

Contrary to defendant’s contentions, nothing in article I, § 6 mandates that the superior court information charge each and every offense in the felony complaint; rather, that section permits "a person held for the action of a grand jury upon a charge” of an infamous offense to waive indictment and "consent to be prosecuted on an information filed by the district attorney” (emphasis added). In fact, section 6 contemplates that the offenses charged in the information may not mirror those in the complaint and thus requires that the written waiver expressly state the charges to be included in the information (NY Const, art I, § 6). The plain language of the amendment does not require that the information contain the precise "charge” for which the defendant was held even though the waiver of indictment is necessarily a waiver of indictment on that charge.

Moreover, CPL 195.20, in describing the offenses to be charged in the information, provides that they "may include any offense for which the defendant was held for action of a grand jury” (emphasis added). Since a defendant is held for the action of the Grand Jury on the lesser included offenses as well as a greater offense charged in the felony complaint (see, CPL 190.65, 210.20 [1] [b]; 210.30 [1]), CPL 195.20 plainly permits waiver upon an information charging only a lesser included offense of the offense charged in the felony complaint (see, People v Humiston, 145 Misc 2d 28; compare, People v Smith, 86 Misc 2d 1032 [holding jurisdictionally defective an information charging a greater offense than that charged in the felony complaint]).

Defendant argues however, that notwithstanding the plain language of CPL 195.20, to permit waiver of indictment by a plea to an information charging only a lesser included offense to that charged in the felony complaint might contravene the plea-bargaining restrictions in CPL 220.10 and permit CPL 195.20 to operate as a means to avoid those restrictions (see generally, People v Heme, 110 Misc 2d, at 156, supra). We need not address this issue because here the plea to the information did not in any way violate the restrictions of CPL 220.10.

Finally, we reject defendant’s alternative contention that the information in this case is jurisdictionally defective in any event because the offense it charged is not a lesser included offense of the offense charged in the felony complaint. Penal Law § 265.02 (4) provides that the offense charged in the felony complaint, criminal possession of a weapon in the third degree, is committed when one "possesses any loaded firearm” in a place other than his home or business. A person commits criminal possession of a weapon in the fourth degree, the offense charged in the information, when "he possesses any firearm” (Penal Law § 265.01 [1]). Because it is impossible to commit third degree possession without also committing fourth degree possession (People v Glover, 57 NY2d 61, 64) fourth degree possession is a lesser included offense of third degree possession (People v Weeden, 89 AD2d 814; compare, People v Ali, 36 NY2d 880).

We conclude, therefore, that the information charging defendant with a lesser included offense of the offense charged in the felony complaint properly charged an offense for which he was held for Grand Jury action. Thus the information contained no jurisdictional defect and defendant’s waiver of indictment was effective.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts (CPL 470.40 [2] [b]; 470.25 [2] [d]).

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

Order reversed, etc.

       This argument may be reviewed on appeal because, as we have recently noted, an infringement upon the right to prosecution by indictment is jurisdictional and cannot be waived by guilty plea (People v Boston, 75 NY2d 585, 587; see also, People v Patterson, 39 NY2d 288, 295, affd 432 US 197).