author: Chief Judge Kaye.

text:
    [644 NE2d 272, 619 NYS2d 690]
    T.C. Ziraat Bankasi, Appellant, v Standard Chartered Bank, Respondent.
    Argued October 20, 1994;
    decided December 1, 1994

      POINTS OF COUNSEL

      Zeichner Ellman & Krause, New York City (Michael T. Sullivan and Mark G. Hanchet of counsel), for appellant.
    I. Because Standard Chartered Bank was not a "collecting bank or other intermediary,” it breached its warranties pursuant to UCC 7-507. (People v Cruz, 48 NY2d 419, 446 US 901; People v Shapiro, 50 NY2d 747; Barsh v Town of Union, 126 AD2d 311; Matter of Koner v Procaccino, 45 AD2d 551, 39 NY2d 258; Matter of Memory Gardens [Cemetery Bd.], 91 AD2d 1163; People v Darryl M., 123 Misc 2d 723; Weisbart & Co. v First Natl. Bank, 568 F2d 391; People v Bourne, 139 AD2d 210; People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Commrs., 174 NY 417; Ellis v County of Broome, 112 Misc 2d 19.) II. The fact that Ziraat Bankasi has not paid under the standby credit does not preclude summary judgment in its favor. (Northway Mall Assocs. v Bernlee Realty Corp., 90 AD2d 739.)

      Otterbourg, Steindler, Houston & Rosen, P. C., New York City (Stanley L. Lane, Jr., and Diane B. Kaplan of counsel), for respondent.
    I. Standard Chartered Bank is entitled to summary judgment because Ziraat Bankasi has not made payment under its standby credit and has, therefore, incurred no actual damages. (S. Leo Harmonay, Inc. v Binks Mfg. Co., 597 F Supp 1014, 762 F2d 990; Dinermen v National Bank, 89 Misc 2d 164; Cicci v Lincoln Natl. Bank & Trust Co., 46 Misc 2d 465.) II. Standard Chartered Bank is not liable to Ziraat Bankasi for breach of implied warranty because Standard Chartered Bank acted as a mere intermediary in delivering the Narahami bill of lading to Ziraat Bankasi. (Archibald & Lewis Co. v Banque Internationale de Commerce, 216 App Div 322; Springs v Hanover Natl. Bank, 209 NY 224; Jacobs v Banque Pour Le Commerce et L’industries, 131 Misc 162; Shaw v Railroad Co., 101 US 557; First Trust & Sav. Bank v Fidelity-Philadelphia Trust Co., 214 F2d 320, 348 US 856; Matter of Riefberg, 58 NY2d 134; Grace v Sterling, Grace & Co., 30 AD2d 61.)
   OPINION OF THE COURT

Chief Judge Kaye.

UCC 7-507 provides that the transferor of a document of title warrants the genuineness of the document except as provided in UCC 7-508, which exempts from this duty a mere “intermediary.” Defendant bank, which unknowingly accepted a fraudulent bill of lading as security for a loan and, upon satisfaction of the loan, transferred the document to plaintiff bank, claims that it was entitled to the exemption provided by UCC 7-508. We agree with the Appellate Division that, in the transaction at issue, defendant was an intermediary entitled to the UCC 7-508 exemption and therefore affirm dismissal of the complaint.

In September 1991, defendant Standard Chartered Bank established a $5 million line of credit in favor of its customer, Red Rock Commodities, Ltd., for use in purchasing steel billets for export to Israel. At Red Rock’s request, on December 19, 1991, Standard issued an irrevocable letter of credit in the amount of $2,107,000 against Red Rock’s account in favor of Narahami, Inc., a Swiss steel merchant, for purchase of the billets.

To obtain payment under the terms of the letter of credit, on January 6, 1992 Narahami presented Standard with a negotiable bill of lading issued December 21, 1991 for the shipment of 10,520.4 metric tons of steel billets "clean on board” the motor vessel Szombierki in Szczecin, Poland, bound for Ashdod, Israel. Standard made payment to Narahami and debited Red Rock’s account $2,261,886, apparently intending to hold the bill of lading until redeemed by the purchaser, Ram Metals and Building Industries, Inc., by payment in full upon arrival of the shipment in Israel.

When several months later Ram Metals had not made payment to Standard, Red Rock sought to free its line of credit. At Red Rock’s urging, Ram Metals borrowed $2.5 million from the Park Avenue Bank, N. A., to pay the debt owed to Standard, in exchange for a promissory note payable February 26, 1993. That loan was backed by a standby letter of credit in the amount of $2.5 million issued by plaintiff T.C. Ziraat Bankasi (Ziraat) in favor of Park Avenue Bank. By its terms, the standby letter of credit was payable on or after March 6, 1993 upon presentation of a sight draft drawn on Ziraat accompanied by a statement by Park Avenue Bank that Ram Metals had defaulted on the promissory note. On June 30, 1992, Park Avenue Bank transferred the proceeds of the loan to Standard in satisfaction of Red Rock’s debt.

The next day, at Red Rock’s request, Standard endorsed and transferred the bill of lading to Ziraat to collateralize the standby letter of credit. Standard and Ziraat had a total of three communications. The first was a brief telephone conversation between the banks’ vice-presidents on June 24 regarding Red Rock’s need for credit. The other two were by letter— one dated June 30, 1992 reciting in language suggested by Red Rock that "We undertake that upon receipt of these funds from Park Avenue Bank, we will endorse the original Bills of Lading to T.C. Ziraat Bankasi and deliver said Bills of Lading to your Bank,” and the other actually transmitting the bill on July 1.

By December 1992, Red Rock had disclosed to Ziraat that the bill of lading was fraudulent — the steel billets never existed, and the Szombierki was not even in port at Szczecin on the date of the bill’s issuance. Standard was apparently unaware of the fraud. In January 1993, Ram Metals was placed in liquidation in Israel.

Ziraat commenced this action against Standard for breach of warranty in transferring the fraudulent bill of lading, and Standard asserted as a defense that it was a mere intermediary, not responsible for the genuineness of the document. Supreme Court granted Standard summary judgment dismissing the complaint, the Appellate Division affirmed for the reasons stated in the comprehensive opinion of Justice Myriam Altman, and we granted leave to appeal.

During the pendency of the State court proceedings, on March 8, 1993, Park Avenue Bank presented Ziraat with the required sight draft and statement under the standby letter of credit. After Ziraat disclaimed liability and refused payment, Park Avenue Bank commenced suit in the United States District Court for the Southern District of New York to compel Ziraat to honor the standby letter of credit (see, Park Ave. Bank v Ziraat Bankasi, 1994 US Dist LEXIS 3433, 1994 WL 97039 [Mar. 24, 1994, Keenan, J., 93 Civ 1483]). That action is pending.

I.

Lacking a definition of "intermediary” in the Uniform Commercial Code, we look to the rationale underlying UCC 7-507 and 7-508, in which the term appears (see, UCC 1-102; Note, How Appellate Opinions Should Justify Decisions Made Under the U.C.C., 29 Stan L Rev 1245 [1977]). UCC 7-507 provides:

"Where a person negotiates or transfers a document of title for value otherwise than as a mere intermediary under the next following section, then unless otherwise agreed he warrants to his immediate purchaser only in addition to any warranty made in selling the goods "(a) that the document is genuine; and "(b) that he has no knowledge of any fact which would impair its validity or worth; and "(c) that his negotiation or transfer is rightful and fully effective with respect to the title to the document and the goods it represents.”

A "mere intermediary” warrants only its own good faith and authority to transfer the document, as set forth in UCC 7-508:

"A collecting bank or other intermediary known to be entrusted with documents on behalf of another or with collection of a draft or other claim against delivery of documents warrants by such delivery of the documents only its own good faith and authority. This rule applies even though the intermediary has purchased or made advances against the claim or draft to be collected.”

A collecting bank — which Standard concedes it was not — is "any bank handling the item for collection except the payor bank” (UCC 4-105 [d]), in other words, a bank that transfers an item between principals. An "other intermediary” is necessarily broader but still, like a collecting bank, is essentially a go-between with no real stake in the underlying transaction, which is the common understanding of the common word "intermediary.”

UCC 7-507 warranties are owed to the "immediate purchaser only” of the document of title, signalling that the section contemplates a transaction in the nature of a sale. Indeed, the section goes on to provide that the warranties as to the document are in addition to "any warranty made in selling the goods.” The drafters noted that the warranties described in UCC 7-507 "derive from the contract of sale and not from the transfer of the documents” (UCC 7-507, Comment 1). The section 7-508 exemption, by contrast, applies to "delivery of documents” entrusted to the transferor "on behalf of another.”

Thus, the purpose underlying UCC 7-508’s exemption appears to be protection of the reasonable commercial expectation of a transferor who merely forwards — and does not itself sell — a document of title. While a seller may be held accountable for the quality of what it sells, one who merely transfers on behalf of another — an intermediary — is generally not expected to know or represent its quality. The UCC 7-507 warranty is therefore properly imposed in transactions more in the nature of a sale than transfer of documents on behalf of another.

This reading is supported as well by the history of the sections, which may be traced back to the Personal Property Law and the common law before it. Personal Property Law former § 221, with which UCC 7-507 is "generally in accord” (see, UCC 7-507, New York Annotations), imposed a warranty of genuineness only upon sale of a bill of lading. Personal Property Law former § 223 — the predecessor of UCC 7-508 (see, UCC 7-508, New York Annotations) — exempted transactions in which the pledgee of the bill of lading transferred the bill upon payment of the underlying debt. Applying those provisions to facts similar to this case, the Appellate Division concluded in Archibald & Lewis Co. v Banque Internationale de Commerce (216 App Div 322, 327) that endorsement and transfer of a fraudulent bill of lading upon satisfaction of a debt was not a sale subject to the warranty of genuineness (see also, Springs v Hanover Natl. Bank, 209 NY 224 [transferor of fraudulent bill of lading for collection of accompanying draft not liable to transferee at common law]).

II.

The trial court and Appellate Division correctly applied these principles to the facts at hand. Had Standard, upon satisfaction of the debt, simply transferred the collateral to Red Rock, plainly no warranty of genuineness would have arisen. No different result should follow on Standard’s transfer of the collateral, for Red Rock’s benefit and at its direction, to Ziraat.

When Standard accepted the bill of lading as security for its customer’s debt, it presumably did its own evaluation of the collateral, assuming the risk that the bill of lading might be fraudulent (see, 2 White and Summers, Uniform Commercial Code § 22-5, at 235 [Practitioner’s 3d ed] [pledgee of document of title bears risk that document is fraudulent]). Upon satisfaction of the debt and relinquishment of the collateral, Standard no longer bore that risk. Having sought possession of the bill of lading as security for its standby letter of credit — generally collateralized only at the issuer’s request — Ziraat should not be permitted to rely on Standard’s prior acceptance of the document as a warranty of its genuineness. Standard may, for its own business reasons, have been satisfied to accept the collateral offered by its customer, but that should not relieve Ziraat of the responsibility to conduct its own investigation.

Two additional points bear mention. First, we reject Ziraat’s claim that it was a purchaser of the bill entitled to a warranty of genuineness because Standard received value— repayment of its loan — in the transaction. Standard merely relinquished its collateral upon satisfaction of the Red Rock loan, a transaction that cannot properly be deemed a sale in these circumstances (see, Archibald & Lewis Co., supra, at 327; First Trust & Sav. Bank v Fidelity-Philadelphia Trust Co., 214 F2d 320, 323, cert denied 348 US 856).

Second, we likewise reject Ziraat’s contention that Standard’s June 30, 1992 letter — reflecting Standard’s agreement to deliver the bill of lading to Ziraat upon satisfaction of the underlying debt — conferred a warranty of genuineness. Standard sent the letter at Red Rock’s request "as per the exact enclosed draft” provided by Red Rock. By its terms, the letter expressed Standard’s obligation — owed to Red Rock — to forward the document. Nothing in the letter alters the nature of the transfer or Standard’s role as an intermediary. Nor by endorsing the bill of lading did Standard incur any obligation to Ziraat (see, UCC 7-505).

III.

Finally, we find significant that our holding is consistent with the express provisions of the Federal Bills of Lading Act (FBLA) (49 USC § 80101 et seq.), a statute that would have controlled here had the bill of lading not reflected shipment of goods entirely outside the United States (see, 49 USC § 80102; UCC 7-103).

Like UCC 7-507, the FBLA imposes a warranty of genuineness on the transferor of a bill of lading (see, 49 USC § 80107 [a]). However, "[a] person holding a bill of lading as security for a debt and in good faith demanding or receiving payment of the debt from another person does not warrant by the demand or receipt — (1) the genuineness of the bill; or (2) the quantity or quality of the goods described in the bill” (49 USC § 80107 [b]). But for the fortuity of the situs of the shipment, Standard — a holder of the bill of lading as security for a debt —would under the Federal statute have been exempt from warranting the genuineness of the document. Uniformity of the law among the various jurisdictions is of course among the objectives of the Uniform Commercial Code (UCC 1-102 [2] [c]).

As Ziraat does not dispute that Standard satisfied its warranties of good faith and authority as an intermediary under UCC 7-508, the complaint for breach of warranty was properly dismissed.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [644 NE2d 277, 619 NYS2d 695]
    In the Matter of Buffalo News, Inc., Respondent, v Buffalo Enterprise Development Corporation, Appellant.
    Argued October 19, 1994;
    decided December 6, 1994

      POINTS OF COUNSEL

      John P. Lane, Williamsville, for appellant.
    I. The Buffalo Enterprise Development Corporation is not an "agency” subject to the provisions of the Freedom of Information Law. (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Price v Price, 69 NY2d 8; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Public Citizen Health Research Group v Department of Health, Educ., & Welfare, 449 F Supp 937; Matter of Fink v Lefkowitz, 47 NY2d 567; Hawkins v Kurlander, 98 AD2d 14; Irwin Mem. Blood Bank v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 539 F2d 174; Lombardo v Handler, 397 F Supp 792, 546 F2d 1043, 431 US 932.) II. The order of the Court below should be reversed.

      Jaeckle, Fleischmann & Mugel, Buffalo (Andrea R. Moore of counsel), for respondent.
    The determination of agency status must be made based upon function. (Matter of Capital News

      papers v Whalen, 69 NY2d 246; Matter of Fink v Lefkowitz, 47 NY2d 567; Hawkins v Kurlander, 98 AD2d 14; Soucie v David, 448 F2d 1067; Rocap v Indiek, 539 F2d 174; Dixson v United States, 465 US 482; People v Confoy, 110 Misc 2d 252; Matter of Onondaga County Dist. Attorney’s Off., 92 AD2d 32; Matter of Burns v Quinones, 68 NY2d 719; Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361.)
   OPINION OF THE COURT

Bellacosa, J.

The question in this case is whether appellant Buffalo Enterprise Development Corporation (BEDC) is an "agency” within the meaning of the Freedom of Information Law (FOIL) (see, Public Officers Law § 86 [3]). The controversy relates solely to statutory interpretation of an aspect of FOIL. We agree with the Appellate Division that appellant is an agency for FOIL purposes and that petitioner, Buffalo News, is entitled to financial information contained in appellant’s files.

As a corporation created under the Not-For-Profit Corporation Law, the BEDC is a local development corporation "performing an essential governmental function” (Not-For-Profit Corporation Law § 1411 [a]). The BEDC was created "to lessen the burdens of government” and to administer loan programs and encourage, through incentive loans, the development of local growth-oriented manufacturing companies and other small businesses. Its certificate of incorporation states that its purposes are "to relieve and reduce unemployment, to promote and to provide for additional and maximum employment, to better and to maintain job opportunities * * * [to] encourag[e] [ ] development * * * in the community * * * and to lessen the burdens of government and to act in the public interest.” BEDC is subject to regulation by the United States Small Business Administration and its entire source of funding is through that Federal agency, the United States Department of Housing and Urban Development, and other State and Federal governmental entities. Since its creation in 1978, the BEDC has assisted hundreds of Buffalo-based businesses to retain and create thousands of new jobs for the community, and has channeled financing for the construction of scores of new buildings.

Membership in the BEDC is limited to individuals or entities residing in or doing business in the City of Buffalo. The BEDC maintained, until recently, offices in a public building. It is managed by a Board of Directors which, according to its bylaws, consists of the following permanent directors: the Mayor of the City of Buffalo; the Commissioner of Community Development for the City of Buffalo; the President of the BEDC; a representative of the River-Rock Resurgence Corporation and a representative of the Grant-Ferry LDC. The Board of Directors designated the original members of the corporation, and, at the time this proceeding was commenced, a member of the City of Buffalo’s Common Council was one of the appointed members of the Board.

Petitioner is the publisher of Buffalo’s daily newspaper. In February 1990, Thomas Dolan, a reporter, filed a FOIL request with the BEDC, requesting access to financial records pertaining to nonperforming loans made by the BEDC which had been discharged or forgiven. The BEDC provided "The News” with a limited compilation of delinquent borrowers, but refused to grant access to records concerning discharged or forgiven loan obligations. When the Mayor of Buffalo, as Chairperson of the Board of Directors of the BEDC, continued to refuse access to the records, "The News” commenced this CPLR article 78 proceeding to compel disclosure of the documents.

Supreme Court denied the petition, holding that the BEDC does not fit within the definition of "agency” (see, Public Officers Law § 86 [3]). The Appellate Division, with two Justices dissenting, reversed, on the law, concluding that the BEDC acts as a governmental agency and is thus subject to FOIL’S disclosure requirements (173 AD2d 43). It remanded to the Supreme Court for an in camera inspection of the disputed documents to determine if they fell within any exemption from disclosure and for a determination whether "The News” should be awarded attorneys’ fees and costs. Supreme Court conducted the in camera inspection, identified certain materials subject to the FOIL privacy exemptions, otherwise ordered disclosure, and denied "The News” attorneys’ fees. This is an appeal as of right on the predicate two-Justice dissent (CPLR 5601 [d]), and the final judgment brings up for review the prior nonfinal Appellate Division order, ruling that the BEDC is an "agency” for FOIL purposes.

The Legislature declared "that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government” (Public Officers Law § 84, added by L 1977, ch 933). FOIL was enacted to provide the People with the means to access governmental records, to assure accountability and to thwart secrecy (see, Matter of Weston v Sloan, 84 NY2d 462, 466 [decided today]). All records of a public agency are presumptively open to public inspection, without regard to need or purpose of the applicant. Consistent with these laudable goals, this Court has firmly held that " 'FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government’ ” (Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 697, quoting Matter of Capital Newspapers v Whalen, 69 NY2d 246, 252; Matter of Federation of N. Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92, 96; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564; Matter of Fink v Lefkowitz, 47 NY2d 567, 571). In Russo, we held that the term "agency” under FOIL must be given " 'its natural and most obvious’ meaning” and must be " 'liberally construed’ ” to further the general purpose of FOIL (81 NY2d, at 697, 698, supra [citing McKinney’s Cons Laws of NY, Book 1, Statutes § 94]; see also, Matter of Capital Newspapers v Whalen, 69 NY2d 246, 251, 252, supra).

The BEDC, a not-for-profit local development corporation, channels public funds into the community and enjoys many attributes of public entities. It should therefore be deemed an "agency” within FOIL’S reach in this case.

Public Officers Law § 86 (3) defines an "agency” as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof ’ (emphasis added). The BEDC seeks to squeeze itself out of that broad multipurposed definition by relying principally on Federal precedents interpreting FOIL’S Federal counterpart, the Freedom of Information Act (5 USC § 552). The BEDC principally pegs its argument for nondisclosure on the feature that an entity qualifies as an "agency” only if there is substantial governmental control over its daily operations (see, e.g., Irwin Mem. Blood Bank v American Natl. Red Cross, 640 F2d 1051; Rocap v Indiek, 539 F2d 174). The Buffalo News counters by arguing that the City of Buffalo is "inextricably involved in the core planning and execution of the agency’s [BEDC] program”; thus, the BEDC is a "governmental entity” performing a governmental function for the City of Buffalo, within the statutory definition.

The BEDC’s purpose is undeniably governmental. It was created exclusively by and for the City of Buffalo to attract investment and stimulate growth in Buffalo’s downtown and neighborhoods. As a city development agency, it is required to publicly disclose its annual budget. The budget is subject to a public hearing and is submitted with its annual audited financial statements to the City of Buffalo for review. Moreover, the BEDC describes itself in its financial reports and public brochure as an "agent” of the City of Buffalo. In sum, the constricted construction urged by appellant BEDC would contradict the expansive public policy dictates underpinning FOIL. Thus, we reject appellant’s arguments.

Although we agree with the persuasive reasoning in Presiding Justice Denman’s opinion in reaching our determination to affirm the Appellate Division’s order on traditional statutory interpretation analysis, we note that the advisory opinions of the Committee on Open Government are "neither binding upon the agency nor entitled to greater deference in an article 78 proceeding than is the construction of the agency” (Matter of John P. v Whalen, 54 NY2d 89, 96).

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

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

Judgment of Supreme Court appealed from and order of the Appellate Division brought up for review affirmed, with costs.


author: Titone, J.

text:
    [644 NE2d 988, 620 NYS2d 297]
    Vicky L. Saarinen, Respondent, v Christopher A. Kerr, Respondent, and Village of Massena, Appellant.
    Argued September 19, 1994;
    decided December 1, 1994

      POINTS OF COUNSEL

      Leonard, Mellon & Gebo, Ogdensburg (A. Michael Gebo of counsel), for appellant.
    I. The Court below erred in reversing Supreme Court. (Patella v State of New York, 141 AD2d 999; Mehra v Bentz, 529 F2d 1137; Johnson v Tschiember, 7 AD2d 1029; Pisano v S. S. Benny Skou, 220 F Supp 901, 346 F2d 993, 382 US 938; Olsen v St. Margaret of Scotland R. C. Church, 21 AD2d 827; Strobel v State of New York, 36 AD2d 485, 30 NY2d 629; Thain v City of New York, 35 AD2d 545, 30 NY2d 524; Dugan v Longo, 169 AD2d 872; Kerwin v County of Broome, 134 AD2d 812, 71 NY2d 802; Mitchell v State of New York, 108 AD2d 1033, 64 NY2d 611.) II. The Court below granted Village of Massena’s motion for summary judgment. (Strobel v State of New York, 36 AD2d 485; Mitchell v State of New York, 108 AD2d 1033; Dugan v Longo, 169 AD2d 872; Kalinowski v Ryerson & Son, 242 App Div 43, 270 NY 532.)

      Lockwood & Golden, Utica (Stephen L. Lockwood of counsel), for Christopher A. Kerr, respondent.
    I. The Supreme Court erred in finding, as a matter of law, that plaintiff failed to establish a prima facie case of negligence on the part of defendant Village of Massena. (Simmen v State of New York, 81 AD2d 398, 55 NY2d 924; Stanton v State of New York, 29 AD2d 612, 26 NY2d 990; Zulaufv State of New York, 119 Misc 2d 135; Strobel v State of New York, 36 AD2d 485, 30 NY2d 629; People v Rosen, 40 Misc 2d 583; Meighan v Wehnau, 17 AD2d 879; Brennan v City of Albany, 284 App Div 997; Tompkins County v Day, 29 AD2d 709; People v Bisig, 46 Misc 2d 299; County of Broome v Binghamton Taxicab Co., 276 App Div 438; Abood v Hospital Ambulance Serv., 30 NY2d 295.) II. The Supreme Court erred in finding, as a matter of law, that the actions of Village of Massena Police Officer Ted McGown were not the proximate cause of the accident which injured plaintiff. (Derdiarian v Felix Contr. Corp., 51 NY2d 308; Luis v Church of St. Angela Merici, 52 AD2d 352; Lein v Czaplinski, 106 AD2d 723; Sewar v Gagliardi Bros. Serv., 69 AD2d 281, 51 NY2d 752; Holtz v Niagara Mohawk Power Corp., 147 AD2d 857; Terry v Ohio, 392 US 1; Myers v Town of Harrison, 438 F2d 293; Mercado v Vega, 161 AD2d 365, 77 NY2d 918; Selkowitz v County of Nassau, 58 AD2d 888.)

      John A. Piasecki, Malone, for Vicky L. Saarinen, respondent.
    I. Summary judgment should be denied on this record. (Rotuba Extruders v Ceppos, 46 NY2d 223; 175 Check Cashing Corp. v Chubb Pac. Indent. Group, 95 AD2d 701; Walski v Forma, 54 AD2d 776; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Weiss v Garfield, 21 AD2d 156; Russell v A. Barton Hepburn Hosp., 154 AD2d 796; LaGrega v Farrel Lines, 156 AD2d 205; Garcia v Modragon, 159 AD2d 481; Sachs v Nassau County, 151 AD2d 558; Mertsaris v 73rd Corp., 105 AD2d 67.) II. Special Term erred in imposing a superstandard burden of proof upon plaintiff. (Palella v State of New York, 141 AD2d 999; Strobel v State of New York, 36 AD2d 485; Stanton v State of New York, 26 NY2d 990; Simmen v State of New York, 81 AD2d 398, 55 NY2d 924; Zulauf v State of New York, 119 Misc 2d 135.) III. Special Term ignored the independent-non-Vehicle and Traffic Law § 1104 negligence of the Village of Massena. (Clarke v City of New York Tr. Auth., 174 AD2d 268; Cincotta v Johnson, 130 AD2d 539; Barr v County of Albany, 50 NY2d 247; Meistinsky v City of New York, 285 App Div 1153, 309 NY 998; V. Weglarz, Inc. v City of Cohoes, 102 AD2d 953; Mercado v Vega, 77 NY2d 918.)
   OPINION OF THE COURT

Titone, J.

Drivers of emergency vehicles have a primary obligation to respond quickly to preserve life and property and to enforce the criminal laws. Consequently, in recognition of these drivers’ special needs, the Legislature enacted Vehicle and Traffic Law § 1104, which qualifiedly exempts them from certain traffic laws when they are "involved in an emergency operation.” At issue in this appeal are the meaning and effect of the statute’s provisions for civil liability in the event of an accident (Vehicle and Traffic Law § 1104 [e]). Consistent with its language and purpose, we hold that Vehicle and Traffic Law § 1104 (e) precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness.

The accident underlying this action occurred on a public road in the Village of Massena on March 4, 1988. According to plaintiff’s submissions, Officer McGown, a seven-year veteran of the Village police force, was sitting in his patrol car at about 10:00 p.m. when he observed a dark colored van that fish-tailed and squealed its tires as it made a turn onto a Village street. Having decided almost immediately to stop the vehicle, McGown followed it and watched its driver, subsequently identified as defendant Kerr, run a stop sign at a speed of approximately 30 m.p.h. and then proceed into a nearby shopping center parking lot.

At that point, McGown activated his patrol car’s red emergency lights. Rather than stopping, the van pulled away. McGown pursued the van behind the shopping center’s stores and turned on his vehicle’s siren. The van continued out onto a public road and drove into the lane for oncoming traffic, passing a red traffic light at the intersection. Concluding that the van was not going to stop in response to his show of authority, McGown reached for his radio with the intention of calling headquarters for help. His efforts were interrupted by the sound of a crash as Kerr’s van collided with a vehicle driven by plaintiff. Subsequent tests revealed that Kerr had been drinking on the night of the accident.

Plaintiff, who was seriously injured as a result of the accident, brought the present action against Kerr and the Village of Massena. With respect to her claim against the Village, plaintiff contended that it should be held vicariously liable for McGown’s lack of due care in pursuing Kerr’s vehicle and liable for its own negligence in failing adequately to train McGown or to adopt an adequate pursuit policy.

Following discovery, the Village moved for summary judgment dismissing plaintiff’s complaint and defendant Kerr’s cross claims against it. In opposition to the motion, plaintiff and defendant Kerr relied principally on the evidence gleaned from McGown’s deposition and testimony at Kerr’s criminal trial. According to McGown’s testimony, he had been driving at a rate of approximately 60 m.p.h. by the time the chase terminated in the accident. The posted speed limit in the area was 35 m.p.h. The night was clear, but the roads were wet. McGown observed no traffic on the road until he approached the intersection at which the accident took place. However, there were several fast food restaurants and a V.F.W. meeting hall in the vicinity, and all but one of the restaurants were open. The entire pursuit lasted no more than one or two minutes.

After reviewing the parties’ submissions, Supreme Court granted the Village’s motion and dismissed the complaint and cross claims against it. The court concluded that "recklessness” was the proper standard for assessing the officer’s conduct and that plaintiff and defendant Kerr had "failed to raise any inference of reckless disregard for the safety of others by Officer McGown.” The court also noted that plaintiff had failed to show how any of the alleged inadequacies in the Village’s training of officers was proximately related to this accident. Indeed, the court held, there was no proof that it was McGown’s conduct in pursuing Kerr rather than Kerr’s own erratic and illegal driving that was the proximate cause of the accident.

On appeal, the Appellate Division reversed and reinstated the complaint and cross claims against the Village. The Court stressed the fact that the pursued Kerr vehicle had been traveling toward a "highly populated area” at the time of the accident (199 AD2d 724, 725). Further, the Court noted, there was a possibility at that relatively early evening hour that there would be traffic on the road. Finally, the Appellate Division cited an affidavit by plaintiff’s expert, which stated, in substance, that the Village’s policies regarding police pursuits were inadequate and that allowing officers to engage in vehicular pursuit without proper training is "inherently dangerous and unsafe.” Accordingly, the Court held, over a dissent by two Justices, there was sufficient evidence to raise questions of fact as to whether McGown had acted with "reckless disregard for the safety of others” (id., at 725) and whether the Village’s pursuit policy and training methods were adequate. The Court then granted the Village leave to appeal to this Court, certifying the following question of law for our resolution: "Did this court err as a matter of law in reversing the order of Supreme Court granting defendant Village of Massena’s motion for summary judgment dismissing the complaint and cross claims against it and denying said motion?”

With respect to the Village’s vicarious liability for Officer McGown’s conduct, the initial critical question is what standard should be applied in evaluating the culpability of that conduct. The touchstone for our analysis is Vehicle and Traffic Law § 1104, which permits the driver of an "authorized emergency vehicle” (see, Vehicle and Traffic Law §§ 101, 114-b) to proceed past red traffic lights and stops signs, exceed the speed limit and disregard regulations regarding the direction of traffic, as long as certain safety precautions are observed (Vehicle and Traffic Law § 1104 [b] [l]-[4]). The privileges afforded by the statute are circumscribed by section 1104 (e), which provides that "[t]he foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” This statute establishes the standard for determining an officer’s civil liability for damages resulting from the privileged operation of an emergency vehicle.

Because the statute makes reference to both "due regard” and "reckless disregard” for the safety of others, the courts of this State have had some difficulty articulating the precise test for determining a driver’s liability for injuries resulting from the operation of an emergency vehicle. In recent years, the Third Department has adhered to the more exacting standard of "recklessness” (Dugan v Longo, 169 AD2d 872; Kerwin v County of Broome, 134 AD2d 812, lv denied 71 NY2d 802; Mitchell v State of New York, 108 AD2d 1033, appeal dismissed 64 NY2d 1128, lv denied 64 NY2d 611; Selkowitz v State of New York, 55 AD2d 709; Dunn v State of New York, 34 AD2d 267; see also, Palella v State of New York, 141 AD2d 999; Stanton v State of New York, 29 AD2d 612, affd 26 NY2d 990). The courts, however, have from time to time also used such terms as "unreasonable under the circumstances” (Simmen v State of New York, 55 NY2d 924, 926; Rightmyer v State of New York, 108 AD2d 1047; Zulauf v State of New York, 119 Misc 2d 135, affd 110 AD2d 1042; see also, Strobel v State of New York, 36 AD2d 485, affd 30 NY2d 629; cf., Mercado v Vega, 161 AD2d 365, 366, revd on other grounds 77 NY2d 918 [want of "due care”]) and "negligent” (Stanton v State of New York, 26 NY2d 990, 992, supra; Thain v City of New York, 35 AD2d 545, affd 30 NY2d 524; Murphy v City of New York, 16 AD2d 678; Wrubel v State of New York, 11 Misc 2d 878; see also, Myers v Town of Harrison, 438 F2d 293, cert denied 404 US 828), either alone or interchangeably with "recklessness,” to describe the level of culpability that will support liability under Vehicle and Traffic Law § 1104 (e). Likewise, courts of other jurisdictions have struggled with the meaning and effect of identically or similarly worded statutes (e.g., Ruth v Rhodes, 66 Ariz 129, 185 P2d 304; Lucas v Los Angeles, 10 Cal 2d 476, 75 P2d 599; Sacramento v Hunger, 79 Cal App 234, 249 P 223; Archer v Johnson, 90 Ga App 418, 83 SE2d 314; Martin v Rossignol, 226 Md 363, 174 A2d 149; Goddard, v Williams, 251 NC 128, 110 SE2d 820; see also, Duran v Mission Mortuary, 174 Kan 565, 258 P2d 241).

Faced squarely with this question of statutory interpretation for the first time, we hold that a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others. This standard demands more than a showing of a lack of "due care under the circumstances” — the showing typically associated with ordinary negligence claims. It requires evidence that "the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow” and has done so with conscious indifference to the outcome (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Restatement [Second] of Torts § 500).

The use of this higher standard is compelled by the plain language of Vehicle and Trafile Law § 1104 (e). Indeed, the Legislature’s specific reference to "the consequences of [the driver’s] reckless disregard for the safety of others” (emphasis supplied) would be unnecessary and, in fact, inexplicable if the conventional criterion for negligence — reasonable care under the circumstances — were the intended standard.

Notably, the common law has long recognized that an emergency situation which leaves little or no time for reflection "itself may be a significant circumstance which * * * should enter into the determination of the reasonableness of the choice of action pursued” (Ferrer v Harris, 55 NY2d 285, 292). Thus, Vehicle and Trafile Law § 1104 (e)’s mention of "the duty to drive with due regard for the safety of all persons” would have sufficed if the more "flexible” reasonable person standard for conduct in the face of an emergency were all that was contemplated (see, id., at 292). The fact that the Legislature went beyond that formulation and invoked the "reckless disregard” terminology demonstrates beyond question that something more exacting than that traditional inquiry was intended. Accordingly, the only way to apply the statute is to read its general admonition to exercise "due care” in light of its more specific reference to "recklessness.”

Such an approach also comports with the purposes of Vehicle and Traffic Law § 1104. The statute represents a recognition that the duties of police officers and other emergency-personnel often bring them into conflict with the rules and laws that are intended to regulate citizens’ daily conduct and that, consequently, they should be afforded a qualified privilege to disregard those laws where necessary to carry out their important responsibilities. Where the laws in question involve the regulation of vehicular traffic, the exercise of this privilege will inevitably increase the risk of harm to innocent motorists and pedestrians. Indeed, emergency personnel must routinely make conscious choices that will necessarily escalate the over-all risk to the public at large in the service of an immediate, specific law enforcement or public safety goal.

Measuring the "reasonableness” of these choices against the yardstick of the traditional "due care under the circumstances” standard would undermine the evident legislative purpose of Vehicle and Traffic Law § 1104, i.e., affording operators of emergency vehicles the freedom to perform their duties unhampered by the normal rules of the road. As a practical matter, use of the undemanding ordinary negligence test — or even the more "flexible” common-law negligence test that is applied in emergency situations (see, e.g., Ferrer v Harris, supra; Rossman v La Grega, 28 NY2d 300) — would lead to judicial "second-guessing” of the many split-second decisions that are made in the field under highly pressured conditions. Further, the possibility of incurring civil liability for what amounts to a mere failure of judgment could deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants. The "reckless disregard” test, which requires a showing of more than a momentary judgment lapse, is better suited to the legislative goal of encouraging emergency personnel to act swiftly and resolutely while at the same time protecting the public’s safety to the extent practicable (see generally, Campbell v City of Elmira, 84 NY2d 505 [decided today]).

Cases such as this involving vehicular pursuits of lawbreakers demonstrate the soundness of utilizing the "reckless disregard” standard. Having observed erratic and dangerous driving on the part of defendant Kerr, Officer McGown was duty-bound to investigate, using all reasonable means, including pursuit, to stop the lawless vehicle’s forward progress. Contrary to the Appellate Division’s suggestion, the conduct McGown observed was far more serious than a series of minor traffic infractions. Kerr’s actions, which included fish-tailing, squealing of brakes and disregard of traffic signs and signals, plainly suggested that the van’s driver was out of control or perhaps even intoxicated. Even if Kerr was not impaired, it is clear that his driving posed a threat to the public safety. Under these circumstances, the officer should have the right to use whatever means are necessary, short of the proscribed recklessness, to overtake and stop the offending driver.

Measured against the prescribed standard of "reckless disregard for the safety of others,” it is evident that, as a matter of law, Officer McGown’s pursuit of Kerr did not overstep the limits of the statutory qualified privilege. It is true that McGown exceeded the posted speed limit, but that conduct certainly cannot alone constitute a predicate for liability, since it is expressly privileged under Vehicle and Traffic Law § 1104 (b) (3). The other circumstances on which plaintiff and defendant Kerr rely — the wet condition of the road, the possibility of other vehicular traffic in the vicinity, the over-all speed of McGown’s vehicle and McGown’s purported delay in calling his headquarters — are similarly unpersuasive, particularly in the context of an inquiry based on the "reckless disregard” standard.

Officer McGown’s maximum speed of 60 m.p.h. was hardly a "breakneck” pace for a police pursuit on relatively empty, nonresidential streets (cf., Mercado v Vega, supra). The wet condition of the roads and the possibility of vehicular traffic in the vicinity undoubtedly augmented the risk involved in the course of conduct McGown undertook, but the risk was one that McGown was entitled to take in the interest of stopping a motorist whose conduct on the road presented a clear and immediate threat to public safety. Finally, McGown’s failure to call in to his headquarters until after the chase was underway is hardly surprising in view of the rapidly unfolding flow of events and the extremely short time frame in which the entire incident occurred.

The allegations in the complaint and cross claims with respect to the Village’s liability for its own purported misconduct are equally flawed. Plaintiff and codefendant Kerr alleged that the Village’s procedures for training its officers in the art of pursuit were inadequate, but neither was able to show how any changes in the Village’s training program might have altered the course of events in this case.

Plaintiff’s and Kerr’s alternative argument is that the Village’s policy on pursuit gave its officers too much latitude. This argument is based on plaintiff’s expert’s affidavit, which cites various articles and studies and indicates that pursuit policies based primarily on the field officer’s discretion are disfavored among law enforcement professionals. However, the Village’s choice to adopt a "discretionary” rather than a more "restrictive” or "discouraging” model to govern its police pursuits is a matter of governmental policy that "may not be reviewed in a personal injury action founded on negligence,” at least in the absence of irrationality (McCormack v City of New York, 80 NY2d 808, 811; see, Haddock v City of New York, 75 NY2d 478, 484; Mon v City of New York, 78 NY2d 309, 313; Tango v Tulevech, 61 NY2d 34). Thus, all of plaintiff’s and Kerr’s claims against defendant Village should have been dismissed.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant Village of Massena’s motion for summary judgment dismissing the complaint and cross claims against it granted, and the certified question answered in the affirmative.

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

Order reversed, etc.

      . Neither plaintiff nor Kerr had any independent recollection of the events leading up to the accident.

      . In neither Stanton v State of New York (26 NY2d 990, supra) nor Simmen v State of New York (55 NY2d 924, supra) was the Court called upon to define the precise contours of the duty of care established in Vehicle and Traffic Law § 1104 (e), since in both cases we concluded as a matter of law that the plaintiffs proof failed under even the less demanding "negligence” standard.

      . The characterization of the conduct McGown had observed is significant because the Village’s own policy specifically provides that "[a] traffic infraction alone does not justify the risks of a high-speed pursuit.” A violation of this policy, if in fact it occurred, would be an important, although not dispositive, factor in determining whether McGown had acted recklessly (cf., Patella v State of New York, 141 AD2d 999,1000, supra).


author: Bellacosa, J. Titone, J.

text:
    [644 NE2d 993, 620 NYS2d 302]
    Mark W. Campbell, Respondent, v City of Elmira, Appellant.
    Argued September 20, 1994;
    decided December 1, 1994

      POINTS OF COUNSEL

      Levene, Gouldin & Thompson, Vestal (John L. Perticone of counsel), for appellant.
    I. The judgment should be reversed because there is no evidence that the City firefighters acted with reckless disregard for the safety of others. (Dugan v Longo, 169 AD2d 872; McCummings v New York City Tr. Auth., 81 NY2d 923; Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821; Matter of Jenson v Fletcher, 277 App Div 454, 303 NY 639; Pavia v State Farm Mut. Auto. Ins. Co., 83 NY2d 779; Kirk v Magee, 1 AD2d 452; Garrett v City of Schenectady, 268 NY 219.) II. The Court below’s decision should be reversed because it is based upon an erroneous resolution of an evidentiary question. (Loschiavo v Port Auth. of N. Y. & N. J., 58 NY2d 1040; Fitzgibbons Boiler Co. v National City Bank, 287 NY 326; Matter of Roge v Valentine, 280 NY 268; Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518; Matter of City of Rochester v BSF Realty, 59 AD2d 1035;
      Egleston v Kalamarides, 89 AD2d 777, 58 NY2d 682.) III. The finding of the jury that plaintiff was free from fault was erroneous as a matter of law. (County of Broome v Binghamton Taxicab Co., 276 App Div 438; Bull v Drew, 286 App Div 1138; Olsen v Baker, 112 AD2d 510, 66 NY2d 604; Martin v Herzog, 228 NY 164.) IV. If the Court does not reverse the judgment and dismiss the complaint, the matter should be returned to the Court below to apply the correct standard of review. (Cohen v Hallmark Cards, 45 NY2d 493; Kozlowski v City of Amsterdam, 111 AD2d 476.)

      David J. Clegg, Kingston, for respondent.
    I. The finding of the jury that defendant, through its employees, acted with reckless disregard for the safety of others is supported by sufficient evidence. (Cohen v Hallmark Cards, 45 NY2d 493; Randolph v City of New York, 69 NY2d 844; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Middleton v Whitridge, 213 NY 499; Gordon v City of New York, 70 NY2d 839; Klayman v City of New York, 130 AD2d 551; Matter of Remillard v City of Watervliet, 124 AD2d 912; Tompkins County v Day, 29 AD2d 709; Myers v Town of Harrison, 438 F2d 293.) II. The finding of the jury that plaintiff was free from fault is supported by sufficient evidence. (Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Nelson v Nygren, 259 NY 71; Thain v City of New York, 35 AD2d 545, 30 NY2d 524; Ferrer v Harris, 55 NY2d 285; Plowden v Maganiello, 138 AD2d 243; Felice v Gershkon, 34 AD2d 1008; County of Broome v Binghamton Taxicab Co., 276 App Div 438; Bull v Drew, 286 App Div 1138; Sadowski v Long Is. R. R. Co., 292 NY 448.) III. The Court below applied the correct standard of review. (People v Bleakley, 69 NY2d 490.)
   OPINION OF THE COURT

Bellacosa, J.

The issue on this appeal is whether any rational view of the trial evidence supports the jury verdict that the City of Elmira’s fire truck driver acted with reckless disregard of the safety of others (Cohen v Hallmark Cards, 45 NY2d 493, 499; Vehicle and Traffic Law § 1104 [e]). Plaintiff, a motorcyclist, won a jury verdict based on proof of defendant’s driver’s failure to satisfy the statutory standard of care. The Appellate Division affirmed the verdict and judgment in that material respect. Defendant appeals on a two-Justice dissent predicate. It argues that plaintiff’s proof is insufficient as a matter of law to support the verdict. We conclude that the Appellate Division order should be affirmed because the jury had a rational evidentiary basis to find that the City of Elmira, through its driver, acted with reckless disregard of the safety of others.

L

In the late morning on August 4, 1986, plaintiff Campbell sustained personal injuries when his motorcycle struck defendant’s fire truck in the intersection of Clemens Center Parkway and East Second Street in the City of Elmira. Plaintiff was travelling in the left passing lane of Clemens Center Parkway. Defendant’s yellow pumper fire truck was proceeding on East Second Street in response to a general alarm at the county jail. The accident occurred when defendant’s truck proceeded through the intersection at a speed of 10 to 15 miles per hour against a red light. Plaintiff, approaching with a green light in his favor, collided with the rear wheel well of the fire truck after he unsuccessfully attempted to stop his motorcycle upon noticing the fire truck entering the intersection. Plaintiff claims that he engaged his brake as soon as he saw the fire truck, prior to his reaching the intersection. His motorcycle left a skid mark of 44 feet 5 inches. Plaintiff testified that he did not hear any horns, sirens or warning sounds.

The evidence at trial revealed numerous disputed issues of fact and credibility regarding the parties’ sharply differing versions of the happening of the accident. Notably, conflicting testimony and inferences emerged regarding whether the fire truck driver ever looked towards the lane and direction that plaintiff was travelling on Clemens Center Parkway before the defendant’s driver entered the intersection; whether defendant’s driver accelerated or decelerated once in the intersection; whether any emergency soundings were heard; and whether defendant’s driver even knew the color of the light when he entered the intersection. The emergency truck driver acknowledged at trial that he had a statutory duty to check the color of the light prior to proceeding into and through the intersection because that would affect the level of care he was obligated to satisfy in going forward, even with an emergency right of way.

After presentation of evidence by both sides, the jury deliberated and returned a plaintiff’s verdict. The City, through its driver employee, was found responsible for recklessly disregarding the safety of others in the operation of the fire truck and proximately causing serious injuries to plaintiff. The jury found no comparative fault against plaintiff and awarded him damages.

The Appellate Division, appropriately evaluating the evidence after a jury verdict and allowing, as required, for the inferences in the light most favorable to a plaintiff in such procedural circumstances, essentially affirmed, finding the verdict rationally supported by the evidence (Campbell v City of Elmira, 198 AD2d 736). On an aspect not in dispute on this appeal, the Appellate Division reduced the award by $55,000 as duplicative damages and, as so modified, affirmed. Two Justices dissented, voting to reverse the judgment and dismiss the complaint on the ground, in their view, that the evidence was insufficient as a matter of law to support a verdict of reckless disregard of the safety of others. The dissenting Judges in this Court essentially take that view of the case as well.

IL

The resolution of the pivotal evidentiary question starts with a consideration of the governing Vehicle and Traffic Law statute. After reciting the privileges of an emergency vehicle driver, Vehicle and Traffic Law § 1104 (e) states in its entirety: "The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.” Under the procedural circumstances presented, that standard must be factored within the well-settled confines of the narrowly restricted level of appellate review governing "insufficiency-as-a-matter-of-law” challenges, especially as to affirmed jury verdicts (Cohen v Hallmark Cards, 45 NY2d 493, 499, supra; contrast, Zuckerman v City of New York, 49 NY2d 557, 562 [discussing summary judgment review standard]).

We have recently reiterated that the "relevant inquiry [is] whether 'there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial’ ” (Mirand v City of New York, 84 NY2d 44, 48-49 [emphasis added] [citing Cohen v Hallmark Cards, 45 NY2d 493, 499, supra]; see also, Shante D. v City of New York, 83 NY2d 948; McCummings v New York City Tr. Auth., 81 NY2d 923, 926, cert denied — US —, 114 S Ct 548). When it can be said that "it would not be utterly irrational for a jury to reach the result it * * * determined * * *, the court may not conclude that the verdict is as a matter of law not supported by the evidence” (Cohen v Hallmark Cards, supra, at 499 [emphasis added]). Based on these rigorous standards under our governing precedents, the jury verdict and finding in this case — that defendant is liable because its emergency vehicle violated the defined boundaries of Vehicle and Traffic Law § 1104 (e) — satisfy the minimal "not utterly irrational” appellate review test (id.).

Ill

We begin our substantive consideration of the merits with the particular statutory description of the reckless disregard standard (Vehicle and Traffic Law § 1104 [e]). The analysis partakes of a precise statutory formulation, a general intentionality concerning the alleged wrongdoer’s actions, and other customary features of recklessness, i.e., disregard of a known or obvious risk so great as to make it highly probable that harm would follow and done with conscious indifference to the outcome (see, Vehicle and Traffic Law § 1104 [e]; see also, Prosser and Keeton, Torts § 34, at 212-214 [5th ed]; compare, Saarinen v Kerr, 84 NY2d 494, 501 [decided today]; compare also, Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453; Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824).

This Court’s efforts to provide uniformity and understanding of the operative standard of care do not occur in a vacuum, any more than our struggle to apply the agreed-upon standard to varied fact patterns in different procedural settings does. We should not overlook the fact, for example, that the simple word, recklessness, has a long and multisourced history. The variety of sources of authority should appropriately be tapped to help inform our analysis and articulation. We should recognize, too, that the application of the adopted formulation must accord with the appropriate procedural context in which standards of proof and appellate review modalities must be aligned and have relevance, be they preponderance of evidence, as in the instant case, or as a matter of law on a summary judgment nonevidentiary record (Zuckerman v City of New York, 49 NY2d 557, 562, supra).

We are in total agreement that parties may be found to

have acted in violation of the statutory formulation when they consciously — and, thus, with general intentionality, not necessarily with intent to cause particular injury — disregard known serious risks of harm. The decision to ignore a grave risk, which is likely to result in harm to others, may satisfy the intentional aspect sufficient to impose liability (see, Prosser and Keeton, op. cit., at 212-214; see also, Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453, supra; see also, Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824, supra).

We apply the Vehicle and Traffic Law civil statutory standard, based on a fusion of the variety of sources of authority. Our decision that the evidence at this trial rationally supports the jury’s conclusion respects the jury’s deliberations in weighing and resolving disputed fact and credibility questions, and in arriving at its judgment that defendant’s driver acted intentionally, while aware of a grave risk which he consciously disregarded and knowingly ignored in a circumstance of high probability that harm would ensue. From evidentiary rooted findings, the jury could rationally have concluded that the experienced fire truck operator intentionally violated the statutory mandate when he recklessly flaunted the risks of proceeding in an emergency setting into an intersection against a red traffic light, indifferently and in disregard of any modicum of statutorily required attentiveness (see also, Vehicle and Traffic Law § 1104 [b] [2]; § 1144 [b]).

Defendant’s claims and the dissenting opinion’s assertions notwithstanding, this is not a case where the fire truck driver fulfilled his corresponding part of the statutorily imposed obligations to take nonreckless safety and due care precautions for others, in order to avail himself of the emergency right-of-way dispensation from observing usual traffic controls. This is not simply a case of a driver running a red light and committing mere negligence. This case is about the jury’s consideration and resolution of defendant driver’s more flagrant, nuanced and complex, conscious violation of Vehicle and Traffic Law § 1104 (e). Our disagreement with our dissenting colleagues in this case, thus, turns essentially, indeed solely, on the application of the particular statutory standard of care.

IV.

By contrast, in Saarinen v Kerr (84 NY2d 494, supra), the Court is unanimous with respect to the result and application of the rule and concludes that no triable issues of fact are presented. The Court in that case could discern no triable or reasonable view of the record to support a possible violation of the statutory standard of care in a municipal emergency context in the summary judgment procedural mode in which that case comes to us for review. Moreover, Saarinen v Kerr (84 NY2d 494, supra) presents a once-more removed vicarious liability setting in that the pursued driver, and not the pursuing officer, was the actor who crashed into and injured the plaintiff in that case. It is important to emphasize, too, the cautiously progressive series of actions taken by the police officer in Saarinen in pursuing a manifestly dangerous drunk driver. Because no triable issues of fact are presented, unlike the instant case, we agree that defendant in that case is plainly entitled to summary judgment. The record there satisfies us that the officer acted in accordance with the statute as a matter of law (Saarinen v Kerr, 84 NY2d 494, supra).

Notably, the instant case involves very different facts and was tried before a jury because of sharply disputed facts and inferences, and resulted in a plaintiff’s jury verdict and an affirmance by the Appellate Division. While some of our colleagues would upset those results by applying the governing standard of recklessness differently because they see no material variations from Saarinen v Kerr (id.), we respectfully disagree for the reasons we have stated.

V.

Moreover and importantly, the Legislature’s choice of words in Vehicle and Traffic Law § 1104 (e) reflects a carefully calibrated standard. Subdivisions (a) through (d) relieve emergency vehicle personnel and their municipal employers of ordinary traffic observance responsibilities. We are unanimous, however, that subdivision (e) attaches a qualification to the exemption from liability.

On the one hand, the more rigorous standard before allowing for municipal liability arising out of emergency circumstances accommodates the realities of the dangerous conditions encountered by officers in performing their municipal duties with necessary dispatch and dispensation from ordinary care. On the other hand, though, the Legislature retains and recognizes the potential for liability as a protection for the general public against disproportionate, overreactive conduct. Conduct measured against such a calibrated formulation is not always or easily resolvable as a matter of law without some appropriate fact-finding forum and process, any more than simple negligence usually is. The more rigorous statutory test before allowing liability thus retains some incentives for moderating and deescalating the already dangerous situations when emergency personnel are engaged in their valiant and important services. Thus, while the Legislature shields municipalities from simple negligence and mere errors in judgment, it also protects innocent victims and the general public by expressly not relieving emergency operators and their municipal employers of all reasonable care (see, Vehicle and Traffic Law § 1104 [e] [employing reckless disregard, and not intentional harm, standard for imposing liability]; see also, Vehicle and Traffic Law § 1104 [b] [2] [under emergency conditions, emergency vehicle driver may proceed past red light "only after slowing down as may be necessary for safe operation”]; Vehicle and Traffic Law § 1144 [b] [while emergency vehicle operator has right of way, emergency driver is not relieved of duty to drive with reasonable care for all persons using the highway]).

The narrow scope of appellate evidentiary review, when factual and credibility issues are in such dispute, supports giving prudent deference to the traditional, trusted jury process, so long as the required rationality minimum of evidence is adduced to show that the statutory standard of care has been violated. In affirming the Appellate Division’s decision which upheld the jury verdict, the Court in this case fulfills its assigned function by faithfully applying these well-established evidentiary rules of care and appellate review.

We have considered appellant’s additional points on appeal and conclude that they are without merit.

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

Titone, J.

(dissenting). The undisputed facts of this case reveal that the driver of defendant’s fire engine was responding to a general fire alarm at the county jail at the time of the accident with plaintiff. The driver of the apparatus was travelling at no more than 10 to 15 miles per hour with his sirens blaring and lights flashing when he proceeded past a red light signal at an intersection, pursuant to a statutory right of way granted to emergency vehicles. The fire truck was struck in the rear by plaintiff’s motorcycle when plaintiff failed to yield the right of way to the pumper, despite his observation that all other surrounding traffic had come to a stop. The majority astonishingly concludes that this record provides sufficient evidence to support the jury’s finding that the driver of defendant’s emergency apparatus was reckless. Because the majority fails to appreciate the level of culpability required to hold the driver of an emergency vehicle liable for abuse of the statutory right-of-way privilege and because no rational view of the evidence supports the finding that the fire truck driver’s conduct was reckless, we respectfully dissent and vote to reverse and dismiss the complaint.

Vehicle and Traffic Law § 1104 (a) (2) provides that, when involved in an emergency operation, the driver of an emergency vehicle has the privilege to "[p]roceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation.” Other motorists faced with an approaching emergency vehicle which is operating its lights and sirens "shall yield the right of way and shall immediately drive to a position * * * clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed” (Vehicle and Traffic Law § 1144 [a] [emphasis added]). These two provisions jointly operated to give defendant’s emergency vehicle a preemptive right of way, regardless of whether it faced a signal to stop.

No dispute exists here that defendant’s driver was operating an authorized emergency vehicle in response to a legitimate emergency or that the driver’s flashing lights and sirens gave notice of the truck’s approach that was "loud enough to be heard and given soon enough to be acted upon — so as to avoid a collision” (Abood v Hospital Ambulance Serv., 30 NY2d 295, 299). Thus, to the extent that the majority’s holding rests on the pumper truck driver’s purportedly improper conduct in passing the red light and on the presence of a green light in plaintiff’s favor, it is fundamentally at odds with the statute.

Having complied with all the other statutory prerequisites for exercise of the right-of-way privilege, defendant could be held liable for plaintiff’s injuries only if the fire truck driver’s conduct evinced a "reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]; Saarinen v Kerr, 84 NY2d 494, 501 [decided today]). As we announced in Saarinen, a showing of "lack of due care under the circumstances” or a "momentary judgment lapse” will not suffice to establish the municipality’s vicarious liability (id., at 501, 502). Rather, to prevail against the driver of an emergency vehicle, the plaintiff must prove that the actor has " 'disregarded] * * * a known or obvious risk that was so great as to make it highly probable that harm would follow’ ” (id., at 501 [emphasis added], quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]).

In granting the right of way to emergency vehicles in contravention of normal traffic flow rules, the Legislature apparently recognized that some increased "risk of harm to innocent motorists and pedestrians” at intersections would have to be tolerated to further the public safety goals associated with the need for an immediate response to emergencies (Saarinen, supra, at 502). Indeed, we need not belabor the obvious dangers to public safety and order presented to defendant’s firefighters by the general alarm at the county jail — a call which, by one firefighter’s account, could be "smoke”, "fire” or "almost anything”.

Slight or momentary departures from traffic safety rules "made in the field under [such] highly pressured conditions” (Saarinen, supra, at 502) and pure judgment calls attendant to driving under emergent circumstances are not the types of actions to which liability for recklessness can reasonably be attached (see, Mitchell v State of New York, 108 AD2d 1033, 1035 [brief failure of patrol car to operate sirens and lights during chase not reckless]; see also, Garrett v City of Schenectady, 268 NY 219, 224, supra [no liability attached where fire truck driver turned his head first to the right and then to the left to scan traffic where a turn to the left first may have forewarned him of an accident]). In fact, the Legislature was aware that the driver of an emergency vehicle deliberately creates a risk to the public every time he or she exceeds the speed limit, passes a red traffic light or disobeys traffic flow rules pursuant to the statutory privileges. Thus, to rise to the level of recklessness within the context of the exercise of this emergency privilege, something greater than the deliberate risks normally associated with the suspension of the usual right-of-way rules must have been contemplated (e.g., Abood v Hospital Ambulance Serv., supra, at 299 [failing to give an audible warning while crossing an intersection against stop signal]). Otherwise, the privilege afforded by Vehicle and Traffic Law § 1104 (a) (2) would have no meaning.

A comparison of these facts with those in Abood v Hospital Ambulance Serv. (30 NY2d 295, supra) is instructive. In that case, an "unreasonable risk” was created — and the statutory privilege forfeited — because the ambulance driver failed to sound his siren while crossing through an intersection against a stop signal. No such similar risk was created or ignored by the pumper’s driver in this case where the vehicle’s siren was sounded and the flashing lights were activated.

The majority strains to uphold the jury’s conclusion that defendant’s driver was aware of a serious risk which he consciously disregarded (majority opn, at 511). To reach this result, the majority relies on the fact that the driver of the apparatus was unsure of the color of the traffic light governing his entry into the intersection, and on other judgment calls he made while driving — i.e., that he accelerated "once in” the intersection, failed to properly scan all lanes of traffic and never saw plaintiff (id., at 508).

The majority’s focus on the wisdom of defendant’s driver’s split-second decision-making in driving is improper (see, Saarinen, supra, at 502; Garrett v City of Schenectady, supra) and obscures what really transpired here. The driver of the apparatus, responding to a potentially life-threatening fire alarm, approached an intersection at 10 to 15 miles per hour with his lights flashing and sirens blaring to warn other motorists to yield the right of way. By all accounts, he gave a blast of the air horn prior to entering the intersection.

The fire truck driver was entitled to rely on the fact that all other drivers are required by law to heed the warnings and clear the intersection. Based on the uncontroverted proof that plaintiff failed to yield the right of way to the pumper, and that plaintiff slammed into the rear wheel well of defendant’s truck, the jury’s conclusion that plaintiff was free of comparative fault is not supportable, and, indeed, is bewildering. By plaintiff’s own admission, over a dozen other vehicles on the road had pulled to the side and stopped to permit the emergency vehicle to pass.

While the risk did exist that someone would not hear the sirens, that possibility was remote. The fact that road noise may have rendered defendant’s sirens and air horn inaudible to a motorcyclist such as plaintiff (see, majority opn, at 508) did not require the fire truck driver to change or order his conduct in anticipation of that slight risk. We are instructed by "a long line of railroad and other cases depending on audible warning, that the rule has to be, not whether the signal was heard, but whether it was given” (County of Broome v Binghamton Taxicab Co., 276 App Div 438, 443). Thus, the failure of the pumper truck’s driver to accommodate the motorcyclist’s unwitting and unfortunate approach did not render his conduct reckless. Had plaintiff’s vehicle been large and yellow and equipped with flashing lights and sirens, defendant’s driver’s failure to notice him would have been more inexcusable.

Under the facts of this case, little significance should be placed on the defendant’s driver’s failure to know the color of the light when he entered the intersection. Even if he had known the light was red, he was "not bound by the usual command of the red light” (County of Broome v Binghamton Taxicab Co., 276 App Div 438, 439, supra), and was statutorily privileged to proceed so long as he fulfilled his obligations to slow down before crossing the intersection and to warn other drivers of his approach. Furthermore, the likelihood that the outcome would have been different if he had observed the color of the light is slight, since the undisputed testimony establishes that prior to entering the intersection the driver was travelling at approximately 10 to 15 miles per hour. Realistically, defendant could not have gone much slower without coming to a stop — a result that would effectively eviscerate the privilege to proceed past a red light after appropriate deceleration.

Similarly, the wisdom and adequacy of defendant’s driver’s other actions, such as how and when he chose to turn his head to view approaching traffic, the timing of his application of pressure to the gas pedal and his failure to know the color of the light — which he had a privilege to pass — were judgment calls which "must be weighed in the light of the [emergent] circumstances” as they unfolded, not in retrospect (Stanton v State of New York, 29 AD2d 612, 614, affd 26 NY2d 990, 991). Although these actions may have constituted, at most, a momentary lapse in judgment, something more than that is required to demonstrate the type of culpable conduct that rises to the level of reckless disregard for the safety of others within the contemplation of Vehicle and Traffic Law § 1104 (e) (see, Saarinen v Kerr, 84 NY2d 494, 502, supra; Mitchell v State of New York, 108 AD2d 1033, 1034, supra).

Indeed, the result reached by the majority in this case is virtually irreconcilable with this Court’s holding in Saarinen, and the majority is guilty of applying "the governing standard of recklessness differently” (majority opn, at 512). In Saarinen, we rejected the plaintiffs contention that a police officer acted recklessly within the meaning of Vehicle and Traffic Law § 1104 (e) in pursuing an offending driver at 60 m.p.h. on a wet roadway in a zone where the posted speed limit was half that rate. No material distinction can be discerned between the degree of culpability evidenced by the acts of the municipal agents in these two cases.

Here, the defendant’s driver’s undisputed use of the required visual and audible warning devices, coupled with his slow rate of speed and his failure to violate any other traffic rule or departmental policy were actions consistent with the statutory mandate that an emergency vehicle driver proceed in a nonreckless manner (cf., Abood v Hospital Ambulance Serv., 30 NY2d 295, 299). Thus, the facts "show[ ] at most a pure accident” (Garrett, 268 NY, at 224, supra) and the complaint against defendant municipality should be dismissed.

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

Order affirmed, with costs.


author: Smith, J. Titone, J.

text:
    [644 NE2d 1001, 620 NYS2d 310]
    Rodger A. Padula, Appellant, v Lilarn Properties Corporation, Respondent.
    Argued October 25, 1994;
    decided December 1, 1994

      POINTS OF COUNSEL

      Calli & Calli, Utica (Richard J. Reittinger of counsel), for appellant.
    The applicable laws of the State of New York and more particularly New York’s Labor Law should apply to accidents, which occur outside New York’s borders when plaintiff and defendant are domiciliaries of New York State. (Calla v Shulsky, 148 AD2d 60; Viera v Uniroyal, Inc., 142 Misc 2d 1099; Salsman v Barden & Robeson Corp., 164 AD2d 481; Brewster v Baltimore & Ohio R. R. Co., 167 AD2d 908; Kilberg v Northeast Airlines, 9 NY2d 34.)

      Felt, Hubbard & Bogan, Utica (James R. Griffith of counsel), for respondent.
    I. By its own terms, article 10 of the Labor Law limits its application to New York worksites. (Salsman v Barden & Robeson Corp., 164 AD2d 481.) II. New York’s general principles of statutory construction limit the geographic scope of the Labor Law to New York. (Brewster v Baltimore & Ohio R. R. Co., 167 AD2d 908; Babcock v Johnson, 12 NY2d 473.) III. Massachusetts has a greater interest in the rules governing conduct at worksites in Massachusetts than New York does. (Schultz v Boy Scouts, 65 NY2d 189; Cooney v Osgood Mach., 81 NY2d 66; Salsman v Barden & Robeson Corp., 164 AD2d 481; Fiske v Church of St. Mary, 802 F Supp 872; Zangiacomi v Hood, 193 AD2d 188; Calla v Shulsky, 148 AD2d 60.)
   OPINION OF THE COURT

Smith, J.

Plaintiff is a resident of New York and defendant is a corporation incorporated under the laws of New York. Defendont owns property in Massachusetts, at which plaintiff was working, under a subcontracting agreement. Plaintiff sustained injuries when he fell from a scaffold while performing work on a construction project in Massachusetts. Plaintiff brought this action for damages, alleging violations of sections 200, 240 (1) and 241 (6) of the New York Labor Law and the rules and regulations thereunder. The issue here is the applicability of these sections of the Labor Law to this accident.

Defendant’s motion for partial summary judgment dismissing plaintiff’s causes of action alleging violations of the New York State Labor Law and various rules and regulations thereunder was granted by Supreme Court and affirmed by the Appellate Division. Supreme Court thereafter granted defendant’s motion for summary judgment dismissing the remainder of plaintiff’s complaint. This Court granted leave from the Supreme Court judgment to bring up for review the prior nonfinal Appellate Division order (CPLR 5602 [a] [1] [ii]).

We reject plaintiff’s contention that New York law should apply here. New York’s choice-of-law principles govern the outcome of this matter. In the context of tort law, New York utilizes interest analysis to determine which of two competing jurisdictions has the greater interest in having its law applied in the litigation. The greater interest is determined by an evaluation of the " 'facts or contacts which * * * relate to the purpose of the particular law in conflict’ ” (Schultz v Boy Scouts, 65 NY2d 189, 197). Two separate inquiries are thereby required to determine the greater interest: (1) what are the significant contacts and in which jurisdiction are they located; and, (2) whether the purpose of the law is to regulate conduct or allocate loss (id., at 198).

As to the first inquiry concerning the significant contacts and the jurisdiction in which they are located, both the plaintiff employee and the defendant owner of the Massachusetts property are domiciliaries of New York State. The other relevant actors are not parties to this lawsuit. They include the plaintiff’s employer (a subcontractor which is a New York domiciliary), the tenant of the property (a Massachusetts domiciliary who contracted with the general contractor), and the general contractor (a domiciliary of Vermont). The tort occurred in Massachusetts.

As to the second inquiry, a distinction must be made between a choice-of-law analysis involving standards of conduct and one involving the allocation of losses (Schultz v Boy Scouts, 65 NY2d 189, 198, supra). In the former case the law of the place of the tort governs. As we stated in Schultz:

"Thus, when the conflicting rules involve the appropriate standards of conduct, rules of the road, for example, the law of the place of the tort 'will usually have a predominant, if not exclusive, concern’ * * * because the locus jurisdiction’s interests in protecting the reasonable expectations of the parties who relied on it to govern their primary conduct and in the admonitory effect that applying its law will have on similar conduct in the future assume critical importance and outweigh any interests of the common-domicile jurisdiction.” (Schultz, 65 NY2d, at 198; see also, Cooney v Osgood Mach., 81 NY2d 66, 72.)

Conduct-regulating rules have the prophylactic effect of governing conduct to prevent injuries from occurring. "If conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders” (Cooney v Osgood Mach., 81 NY2d 66, 72, supra).

Loss allocating rules, on the other hand, are those which prohibit, assign, or limit liability after the tort occurs, such as charitable immunity statutes (e.g., Schultz v Boy Scouts, supra), guest statutes (e.g., Dym v Gordon, 16 NY2d 120), wrongful death statutes (e.g., Miller v Miller, 22 NY2d 12), vicarious liability statutes (e.g., Farber v Smolack, 20 NY2d 198), and contribution rules (e.g., Cooney v Osgood Mach., supra). Where the conflicting rules at issue are loss allocating and the parties to the lawsuit share a common domicile, the loss allocation rule of the common domicile will apply (see, Cooney v Osgood Mach., supra, at 73 [setting forth the three Neumeier rules (Neumeier v Kuehner, 31 NY2d 121) which address the "common domicile” situation in rule No. 1]).

Thus, the fundamental question in this case, where the parties share a common domicile, is whether Labor Law §§240 and 241 are primarily conduct-regulating or loss-allacating. The relevant Labor Law provisions, sections 240 and 241, embody both conduct-regulating and loss-allocating functions requiring worksites be made safe (conduct-regulating) and failure to do so results in strict and vicarious liability of the owner of the property or the general contractor. We hold however, that sections 240 and 241 of the Labor Law are primarily conduct-regulating rules, requiring that adequate safety measures be instituted at the worksite and should not be applied to the resolution of this tort dispute arising in Massachusetts. Thus, Massachusetts law was properly applied.

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Titone, J.

(concurring). I vote to affirm in this case for the simple reason that the Labor Law, by its terms, is inapplicable to conduct occurring outside the State. My conclusion is based on Labor Law § 242, which provides that "the provisions of [article 10] and the rules issued thereunder shall be applicable * * * throughout the state.” By its terms, the statute makes no provision for extraterritorial application of either article 10 or the Labor Commissioner’s regulations. Moreover, under our State’s rules of statutory construction, there is no basis for inferring extraterritorial effect in the face of legislative silence on the question (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 149 ["all laws are co-extensive, and only coextensive, with the political jurisdiction of the lawmaking power; and every statute in general terms is construed as having no extraterritorial effect”]).

In view of the foregoing, the choice-of-law "interest” analysis delineated in the writing is irrelevant (cf., Fried v Seippel, 80 NY2d 32 [deeming "interests” analysis irrelevant in the face of clear statutory language limiting provision’s territorial effect]). Regardless of the nature or classification of the interests involved, Labor Law §§200, 240 and 241 can have no effect outside of New York in the absence of any indication of a legislative intent to extend the statute’s reach in that manner.

Finally, even if New York’s Legislature or its Commissioner did attempt to extend the reach of those provisions to out-of-State jobsites, I would have a serious question as to whether such efforts would be effective. As a matter of common sense, it would be unreasonable for New York’s Labor Commissioner to establish safety rules for jobsites in Massachusetts. Indeed, the Appellate Division was right when it opined that " '[t]he New York Legislature is without authority to impose standards of conduct on contractors, owners and agents relating to a worksite located in a foreign jurisdiction’ ” (198 AD2d 916, quoting Brewster v Baltimore & Ohio R. R. Co., 167 AD2d 908).

In sum, since there can be no liability under Labor Law §§ 200, 240 and 241 without a violation of the statutory and regulatory standard and since those standards are inapplicable in Massachusetts, there is no basis for invoking those provisions in this litigation, regardless of whether their purpose is to regulate conduct or allocate loss. Accordingly, I would eschew use of the choice-of-law Schultz v Boy Scouts (65 NY2d 189) analysis that the majority adopted in favor of a more direct approach based solely on the fact that plaintiff’s causes of action depend on a regulatory scheme designed solely for use in New York. On that basis, I would affirm.

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

Judgment of Supreme Court appealed from and order of the Appellate Division brought up for review affirmed, with costs.

       The statute provides, in full, that article 10 and its related regulations "shall be applicable exclusively throughout the state.” (Emphasis added.) The term "exclusively” creates some ambiguity. On the one hand, it could be intended to mean that article 10 and the related regulations apply only in New York State. On the other hand, it could also be intended to mean that article 10 and the related rules furnish the exclusive source of regulation over the subject matter covered by the statute. Because of this ambiguity, I place no reliance on the quoted term.