text:
    [653 NE2d 1173, 629 NYS2d 1003]
    The People of the State of New York, Appellant, v Robert L. Allen, Respondent.
    Argued June 8, 1995;
    decided July 6, 1995

      POINTS OF COUNSEL

      Robert M. Winn, District Attorney of Washington County, Fort Edward (NancyLynn S. Ferrini of counsel), and Valerie Friedlander, Albany, for appellant.
    I. The decision and order of the court below erroneously shifts the burden of persuasion at a Batson hearing from the person alleging intentional discrimination to the People, in direct contradiction of the Court of Appeals ruling in People v Hernandez (75 NY2d 350, affd 500 US 352). (Batson v Kentucky, 476 US 79; People v Dabbs, 192 AD2d 932, 82 NY2d 707.) II. The decision of the court below erroneously requires the People to meet a new, higher burden of disproving under "enhanced scrutiny” and the "inherently suspect” classification, a subjective, "unconscious” state of mind in direct contradiction of the Court of Appeals ruling in People v Hernandez (75 NY2d 350, affd 500 US 352). (Batson v Kentucky, 476 US 79.) III. The decision of the court below unjustifiably eviscerates the peremptory challenge by creating a rule requiring such challenges to be exercised consistently with regard to juror characteristics. (People v Dixon, 202 AD2d 12; People v Manuel, 182 AD2d 711; People v Kern, 75 NY2d 638.) IV. The decision and order of the court below erroneously subjects the People to a new and higher burden of proof without articulation of a procedure whereby such standard can be met.

      Gregory V. Canale, Glens Falls, and William V. Canale for respondent.
    I. The People failed to meet their burden because the gender-neutral reasons offered to explain their peremptory challenges were pretextual. (People v Hernandez, 75 NY2d 350, 500 US 352; Batson v Kentucky, 476 US 79; People v Simmons, 79 NY2d 1013; People v Bessard, 148 AD2d 49; J.E.B. v Alabama ex rel. T.B., 511 US —, 128 L Ed 2d 89; People v Bolling, 79 NY2d 317; People v Jenkins, 75 NY2d 550.) II. The neutral reasons proffered were not record based, nor susceptible to any verification. (People v Hernandez, 75 NY2d 350, 500 US 352; Batson v Kentucky, 476 US 79.) III. The Appellate Division has the authority to make an independent evaluation of the reasons proffered by the prosecutor and to find those reasons insufficient to satisfy her burden. (Batson v Kentucky, 476 US 79; People v Hernandez, 75 NY2d 350, 500 US 352; People v Alvaranga, 84 NY2d 985.) IV. A lesser degree of deference should be given to the trial court’s findings because the prosecutor based her reasons on information outside of the record and no attempt was made to verify those reasons. (People v Hernandez, 75 NY2d 350; Batson v Kentucky, 476 US 79.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Hauppauge (Gregory C. Pavlides and Steven J. Chananie of counsel), for New York State District Attorneys Association, amicus curiae.

    The decision of the court below ignores fundamental rules of preservation and imposes a new and inappropriate burden upon a party who, upon a prima facie showing of discriminatory intent, must otherwise provide only a facially neutral reason for peremptory strikes. (Batson v Kentucky, 476 US 79; People v Stephens, 84 NY2d 990; People v Scott, 70 NY2d 420; People v Green, 181 AD2d 693; People v Campanella, 176 AD2d 813; People v Duncan, 177 AD2d 187;
      People v Narayan, 54 NY2d 106; People v Martin, 50 NY2d 1029; People v Bolling, 79 NY2d 317.)
   OPINION OF THE COURT

Chief Judge Kaye.

Determining whether a party has exercised peremptory challenges to strike potential jurors for reasons that implicate equal protection concerns is described as a three-step process (Batson v Kentucky, 476 US 79, 96-98; Hernandez v New York, 500 US 352, 358, affg 75 NY2d 350). First, the defendant must allege sufficient facts to raise an inference that the prosecution has exercised peremptory challenges for discriminatory purposes. Second, if the requisite showing has been made, the burden shifts to the prosecution to articulate a neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the proffered reasons are pretextual (Hernandez, 500 US, at 358-359).

In this appeal, defendant alleges that the People failed to meet their burden under step two because they did not show that the neutral reasons they advanced for striking some men were consistently applied to women jurors who were seated. The Appellate Division, in concluding that the People were obligated to make such a showing as part of step two, applied an incorrect legal standard.

Facts

During voir dire at defendant’s trial for incest and sexual abuse, the prosecutor exercised 14 of her 15 peremptory challenges against male jurors and defense counsel exercised all 15 peremptory challenges against female jurors. The jury ultimately consisted of five men and seven women.

Defendant moved for a mistrial, alleging that the prosecutor’s peremptory challenges had been used in a discriminatory manner, to strike potential jurors solely because of their gender. The People offered to provide neutral explanations for their challenges, but the trial court summarily denied defendant’s motion. On appeal, the Appellate Division held that defendant had established a prima facie case of discrimination under Batson v Kentucky (476 US 79, supra), that the burden shifted to the People to provide gender-neutral explanations, and that the trial court erred in summarily denying a mistrial without requiring the People to offer neutral reasons. The matter was remanded to afford that opportunity (see, People v Allen, 199 AD2d 781).

The hearing, held before the original Trial Judge nearly two years after verdict, was limited to the inquiry identified by the Appellate Division: permitting the prosecutor to provide gender-neutral reasons for her challenge to the 14 men. All parties, and the court, had reviewed the voir dire minutes. Defense counsel was allowed, after each explanation, to state any challenges to the reason given. As to 12 of the 14, defense counsel either expressed no quarrel with the reason given or questioned only the reasonableness of the prosecutor’s belief that the juror harbored bias.

As to four of the 12, the prosecutor explained that their responses to inquiries revealed actual bias against children as credible witnesses in a case involving child sexual abuse. One, for example, stated his belief that children could provoke their own sexual abuse. Another showed sympathy toward sexual offenders as suffering from an illness that caused their conduct. A third stated that children often "blow out of proportion” sexual experiences with adults. The fourth believed child sexual abuse was a "family problem,” only rarely a criminal matter.

Another four, according to the prosecutor, revealed personal circumstances that caused her concern about possible bias in favor of defendant or against children. One juror was childless, a circumstance the prosecutor said she believed would make it difficult for him to assess a case involving a relationship between father and daughter. Another was estranged from his own children. A third was involved in a bitter divorce and custody dispute; the prosecutor said that in her view false allegations of child sexual abuse most frequently arose in that context. The fourth was a school bus driver and custodian, and while he had never actually been the target of complaints, the trial court agreed that he showed skepticism about the veracity of children’s complaints against adults.

Four more of the potential jurors, according to the prosecutor, had hostile associations with the Assistant District Attorney or friendly associations with defense counsel or his relatives. A thirteenth was a neighbor of the defendant. A fourteenth potential juror was struck because he did not seem, in the prosecutor’s view, to be sufficiently assertive. The last peremptory was used against a woman whose son was being prosecuted by the District Attorney’s office.

As to two of the explanations given by the prosecutor — the insufficiently assertive male juror and a juror who was in a bowling league with defense counsel — defense counsel argued that the prosecutor had failed to strike female jurors with similar characteristics. To both of those challenges, the prosecutor responded with additional reasons why she had retained the female jurors. Unlike the soft-spoken women jurors identified by defense counsel, the unassertive male juror was in line to be foreperson. The woman who ultimately became foreperson was, according to the prosecutor, assertive and confident in her answers.

Counsel also disputed whether a prior association with his office had been evenly invoked as a reason for striking venirepersons, claiming "many” women on the panel knew defense counsel but had been seated. The prosecutor disputed this characterization, stating only one female juror fell into that category, a woman who said that defense counsel had represented her. That woman, however, was also a neighbor of a member of the District Attorney’s staff, who had told the trial assistant he thought she would be a good juror. Defendant identified no other women seated as jurors despite an association with defense counsel or defendant.

For each of the strikes, the court found that the prosecutor had given a gender-neutral reason, concluding that defendant had failed to demonstrate discrimination by the prosecutor in exercising peremptory challenges.

On appeal, defendant contended that "a number” of the reasons advanced by the prosecution were pretextual, and he had therefore "carried his burden of proving discrimination.” The Appellate Division articulated the following standard of review:

"Although the 'gender neutral’ (or 'race neutral’) reason for exercising a peremptory challenge need not rise to the level of a challenge for cause (see, People v Hernandez, 75 NY2d 350, 357, affd 500 US 352), it must be legitimate and not merely a pretext for discrimination (see, J.E.B. v Alabama ex rel. T.B., [511] US —, 128 L Ed 2d 89, 107). To determine whether the stated reasons are, in fact, legitimate and sufficient to rebut defendant’s prima facie showing, the trial court must 'undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available” ’ (Batson v Kentucky, supra, at 93, quoting Arlington Hgts. v Metropolitan Hous. Dev. Corp., 429 US 252, 266), including information gleaned from the voir dire conducted of other prospective jurors with respect to whom challenges were not exercised.” (206 AD2d 593.)

The court concluded that, in order to rebut a defendant’s prima facie showing, the People were required to demonstrate not only that gender-neutral reasons existed for the challenged male jurors but also that those same neutral reasons had been evenly applied to female jurors who exhibited the purportedly objectionable characteristic. Failure to provide an explanation for such a discrepancy was "a strong indication that the reason furnished was not the true basis for the strike” (206 AD2d, at 593).

In considering defendant’s claim that the prosecutor’s gender-neutral reasons were not applied equally to women, and were therefore pretextual, the Appellate Division reviewed both the evidence adduced at the Batson hearing and the voir dire minutes. On its own reading the court discerned that

"the prosecutor claimed to have struck one male juror because he was unmarried and had no children, yet she failed to use a peremptory challenge to remove a young woman who was also unmarried and apparently childless. Another man was purportedly removed because he knew the defense attorney, and a third because of his familiarity with an attorney (Robert Douglas) who had been associated with the prosecutor’s office and because his cousin was an attorney.
"Challenges were not, however, exercised to strike women, despite their associations with Douglas or the defense attorney — one woman who was ultimately seated on the jury had employed defendant’s attorney just three years previously — and despite the fact that they admitted having lawyers as close relatives. And finally, although a male was removed solely because he was divorced, one of the women on the panel, who had stated that she was not married but had children, was not even questioned as to her marital status and went unchallenged by the People.” (206 AD2d, at 594.)

From this perceived uneven application of the People’s stated rationale for striking the male jurors while seating females, the Appellate Division concluded, "it must be presumed that these factors were simply employed to mask a true intention to exclude from the jury as many men as possible.” The defendant’s ultimate burden of proving discriminatory intent was met because the People, in response to a prima facie showing of discrimination, did not give satisfactory explanations for challenges that appeared to have been based on gender.

Two Justices dissented, concluding that the majority had improperly imposed a new standard of proof for the second stage of the Batson hearings. We agree and therefore reverse.

Analysis

Jury service — a privilege and duty of citizenship — is a civil right established by our Constitution (NY Const, art I, §§ 1, 11; Civil Rights Law § 13) and a fundamental means of participating in government (People v Kern, 75 NY2d 638, 651-652, supra). While generalizing about people’s traits in order to predict their bias as jurors may be integral to the art of jury selection, there are limits to that practice. Elimination of a potential juror because of generalizations based on race, gender or other status that implicates equal protection concerns is an abuse of peremptory strikes (Batson v Kentucky, 476 US 79, supra; J.E.B. v Alabama ex rel. T.B., 511 US —, 128 L Ed 2d 89).

The Criminal Procedure Law permits both sides to challenge, for cause, the selection of a potential juror if it can be shown that bias may prevent that juror from deciding the case impartially (CPL 270.20 [1] [a]-[f|). A peremptory challenge, in contrast, "is an objection to a prospective juror for which no reason need be assigned” (CPL 270.25 [1]). The number of peremptory strikes afforded the parties is determined by statute, based upon the degree of the crime charged (CPL 270.25 [2]). In this case both defendant and the People were entitled to 15 peremptory challenges for regular jurors and two for alternates (CPL 270.25 [2] [b]).

We begin by setting out the legal standards for assessing a claim of discrimination under Batson.

Since a party need give no reason at all for exercise of a peremptory challenge, the initial burden logically falls on the party opposing the strike to make out a prima facie case that a juror has been excused for an impermissible reason — step one of the Batson inquiry. As the Appellate Division concluded in defendant’s first appeal, defendant here met that burden when he protested the prosecutor’s use of 14 peremptory challenges to strike men (see, 199 AD2d 781). The burden of going forward then shifted to the People to overcome the inference of purposeful discrimination — step two of the inquiry.

At this stage, if the prosecutor offers no explanation, the defendant has succeeded in meeting the ultimate burden of establishing an equal protection violation. If, however, the prosecutor offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome (Batson, 476 US, at 96-98). Determination whether the People’s proffered reasons meet their burden is a question of law: assuming the proffered reasons for the peremptory challenges are true, do the challenges violate the Equal Protection Clause? (See, Hernandez, 500 US, at 359.)

The explanation offered need not rise to the level for sustaining a challenge for cause (Batson, 476 US, at 97). As the Supreme Court recently held as a matter of Federal constitutional law, step two is met by offering any facially neutral reason for the challenge — even if that reason is ill-founded— so long as the reason does not violate equal protection (Purkett v Elem, 514 US —, 131 L Ed 2d 834 [May 15, 1995] [challenge based on unkempt hair of juror a neutral reason]). The second step "does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral’ ” (Purkett, 131 L Ed 2d, at 839, supra, quoting Hernandez, 500 US, at 360).

When defendant challenges as pretextual the People’s explanation as to a particular juror, the inquiry has become factual in nature and moves to step three. Unlike step two, step three permits the trial court to resolve factual disputes, and whether the prosecutor intended to discriminate is a question of fact (Hernandez, 500 US, at 364-365). If after inquiry the trial court concludes that a proffered reason is pretextual, defendant has met his or her ultimate burden of proving intentional discrimination (Hernandez, 500 US, at 363-364).

Applying these legal principles here, we conclude that the Appellate Division erred in concluding the prosecution failed to satisfy its burden of going forward under step two.

As to each of the challenged male jurors, the People offered reasons that were gender neutral, reasonably specific and trial related (Batson, 476 US, at 98). Bias against children or preconceptions about child sexual abuse were reasons to strike potential jurors in this case. Familiarity with either the defense or prosecution was, similarly, a facially neutral reason for striking jurors. If credited, these reasons did not violate equal protection, and were therefore sufficient as a matter of law to rebut the threshold showing of discrimination (Hernandez, 500 US, at 359).

Defendant’s claim that these reasons were pretextual rests on his allegation that the gender-neutral reasons offered at the Batson hearing were not applied equally to exclude women from the jury who exhibited the same characteristic. That circumstance is among the factors we have identified as raising an inference of discrimination (People v Bolling, 79 NY2d 317, 324, supra). Apparently uneven application of neutral factors may not always indicate pretext, however, but simply an incomplete understanding of the full reasons for the prosecutor’s decision to seat some jurors while challenging others. For that reason, where counsel has perceived something suggesting a discriminatory motive in the questioning of a prospective juror, we require that those concerns be fully articulated to the trial court during its factual inquiry (People v Childress, 81 NY2d 263, 269).

Here, however, defendant failed during the Batson colloquy to articulate the basis for his present claim. At the outset of the hearing, the parties recognized that its purpose was to afford the prosecution an opportunity to come forward with gender-neutral reasons for its peremptory strikes (step two of the process). That step does not as a rule require the People to state reasons why jurors were seated, only why certain jurors were challenged. As a matter of law, the People’s explanations were sufficient to meet their burden under step two and defendant made no allegation that those reasons were pretextual, except in two instances: the soft-spoken juror, and the juror who had been represented by defense counsel. For each of those persons, the prosecutor responded with additional reasons why, despite the shared characteristic, other factors had led her to believe the seated juror in question would be a good juror.

Because defendant raised no claim of pretext (as now alleged) with respect to any other juror, no fact question ever arose and the trial court properly ruled that defendant’s ultimate burden of proof was not satisfied. The procedure defendant espouses, and the Appellate Division applied — requiring the People at step two to state neutral reasons for its strikes as well as for seated jurors who might have similar qualities — improperly placed the burden on the People to show that they did not engage in intentional discrimination. That legal standard was error.

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

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

Order reversed and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

      . For ease of reference, this writing assumes that the defendant is the party claiming the People’s abuse of peremptory challenges, as was the fact in the case before us, though the analysis applies as well to the People’s claim of abuse (see, e.g., People v Kern, 75 NY2d 638).

      . Controversy continues about whether peremptory strikes — a creature of statute and the source of considerable recent litigation — should be reduced in number (see, Report of The Jury Project, at 65-66 [Mar. 31, 1994]) or abolished altogether (see, e.g., Batson, 476 US, at 106-108 [Marshall, J., concurring]; People v Bolling, 79 NY2d 317, 325 [Bellacosa, Wachtler and Titone, JJ., concurring]). At least for now, they remain part of the strategic arsenal of trial lawyers.

      . The fact that defendant himself used all his peremptory challenges against women would not justify retaliatory strikes against men by the People (People v Mitchell, 80 NY2d 519, 530). The proper response to abuse of peremptory challenges is an objection (People v Kern, 75 NY2d, at 643).


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [653 NE2d 1179, 629 NYS2d 1009]
    Graubard Mollen Dannett & Horowitz, Respondent, v Irving Moskovitz, Appellant, et al., Defendants.
    Argued June 7, 1995;
    decided July 6, 1995

      POINTS OF COUNSEL

      Herrick, Feinstein, L. L. P., New York City (Christopher J. Sullivan, Harvey S. Feuerstein and Geri S. Krauss of counsel), for appellant. I.
    The court below erred by imposing a strict rule against preresignation "solicitations” by a withdrawing or retiring attorney. (Solow v Grace & Co., 83 NY2d 303; Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375; Cohen v Lord, Day & Lord, 75 NY2d 95; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Dunay v Ladenburg, Thalmann & Co., 170 AD2d 335, 78 NY2d 851; Matter of Silverberg [Schwartz], 81 AD2d 640.) II. The court below erred in enforcing a provision in a partnership agreement which required an attorney to attempt to "institutionalize” or "integrate” a client into the firm. (Missan v Schoenfeld, 111 Misc 2d 1022, 95 AD2d 198; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84, 962.) III. The court below erred in holding that plaintiff has stated a cause of action for fraud. (Kamyr, Inc. v Combustion Eng’g, 198 AD2d 44; Green v Dolphy Constr. Co., 187 AD2d 635; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403; Spellman v Columbia Manicure Mfg. Co., Ill AD2d 320; Sabo v Delman, 3 NY2d 155; Keenan v Artintype Inc., 145 Misc 2d 90.) IV. The court below erred in finding that genuine issues of material fact exist. (Security Pac. Bus. Credit v Peat Marwick Main & Co., 79 NY2d 695; Schiraldi v U.S. Min. Prods., 194 AD2d 482; Tobron Off. Furniture Corp. v King World Prods., 161 AD2d 355; Perma Research & Dev. Co. v Singer Co., 410 F2d 572; Downey v General Foods Corp., 31 NY2d 56; Trails W. v Wolff, 32 NY2d 207; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Gordon v De Laurentiis Corp., 141 AD2d 435.)

      Graubard Mollen Horowitz Pomeranz & Shapiro, New York City (Scott E. Mollen, Gary S. Mayerson and Y. David Scharf of counsel), respondent pro se.

    I. The partnership should have been awarded partial summary judgment on the issue of defendants’ liability for breach of fiduciary duty. (Meinhard v Salmon, 249 NY 458; Latta v Kilbourn, 150 US 524; Matter of Rothko, 43 NY2d 305; Matter of Ryan, 291 NY 376; Newburger, Loeb & Co. v Gross, 563 F2d 1057, 434 US 1035; Ellenberg Morgan Corp. v Hard, Rock Cafe Assocs., 116 AD2d 266; Madison Pictures v Pictorial Films, 6 Misc 2d 302; May v Hettrick Bros. Co., 181 App Div 3, 226 NY 580; Brown v Leach, 189 App Div 158; Himoff Indus. Corp. v Srybnik, 19 NY2d 273.) II. The court below correctly affirmed the denial of defendant Moskovitz’s third motion for summary judgment seeking the dismissal of the partnership’s fraud claims. (Cherchio v Alley, 111 AD2d 541; Kirchoff v International Harvester Co., 138 AD2d 820; Ginsberg v Ginsberg, 104 AD2d 482; Matter of Ahmad v Purcell, 82 AD2d 802; Matter of Beiny, 132 AD2d 190, 71 NY2d 994; Foley v Roche, 68 AD2d 558; Silverman v Leucadia Inc., 159 AD2d 254; James v Nestor, 120 AD2d 442; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403; Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954.) III. Defendant Moskovitz is not entitled to summary judgment dismissing any aspect of the complaint. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Millerton Agway Coop, v Briarcliff Farms, 17 NY2d 57; Assaf v Ropog Cab Corp., 153 AD2d 520; Norgate Homes v Central State Bank, 82 AD2d 849; Falk v Goodman, 7 NY2d 87; Coley v Michelin Tire Corp., 99 AD2d 795; Raycarr Sales Corp. v Rynveld’s Son Corp., 1 AD2d 952; Forward Indus. v Rolm of N. Y. Corp., 123 AD2d 374; Robbins v Ogden Corp., 490 F Supp 801.)
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal focuses on a modern-day law firm fixture: the revolving door. With charges of faithless deserting partners and countercharges of a vindictive abandoned firm, the key question becomes whether departing partners can "solicit” clients of the firm. Here we decide only that plaintiff law firm’s allegations of breach of fiduciary duty, breach of contract and fraud are sufficient to withstand summary dismissal, which was the conclusion also reached by the trial court and Appellate Division.

The following factual account is drawn largely from the assertions of plaintiff law firm, the nonmovant, and denied in material part by defendants. As alleged in the amended complaint, defendant-appellant Irving Moskovitz, along with Seymour Graubard, in 1949 founded plaintiff law firm. Over the next 40 years, the firm grew to 35 lawyers, with four senior partners — Graubard, Moskovitz, Raymond Horowitz and Emmanuel Dannett. Defendant Peter Schiller joined the firm in 1949 and became a partner in 1956; defendant John Young arrived in 1964 and became a partner in 1971. Control of the firm, however, was centered in the four seniors (who initiated most of the business), especially Moskovitz, the firm’s managing partner for 33 years, until 1982.

In 1959, Moskovitz brought into the firm as a client F. Hoffman LaRoche & Co., Ltd. and affiliates (Roche), a worldwide pharmaceutical group headquartered in Switzerland. Legal services for Roche were mainly in the area of international taxation, Moskovitz’s specialty, although the firm also handled corporate and litigation matters for the client. In the late 1980s, billings to Roche exceeded $1 million per year.

Concerned with developing a plan both for transition of management to the junior partners and for retirement of the seniors, the firm in 1981 retained an outside consultant and in 1982 adopted a "Phasing Out and Retirement Program.” The agreement provided for a three-year "phase-down” during which the four senior partners were to receive decreasing compensation percentages and a return of their capital, and then annual benefits for five years after their retirement. The retirement agreement included the following "Clarifications,” reading:

” 3. It is the spirit of the program that, during retirement, and even afterward, each of the retirees will not do anything to impair the firm’s relationship with its existing clients and business.
"4. The partners recognize that efforts towards institutionalization of the business of the firm is essential to the firm’s continuing prosperity. In particular, the partners approaching phase-down and retirement will integrate, to the extent possible, relationships between the firm’s clients and the other partners.”

At the time the agreement was presented, according to plaintiff, Moskovitz additionally assured the junior partners that the seniors would do all they could to secure the firm’s future and to institutionalize clients, particularly key clients, by integrating them with other partners in the firm. Some time after the agreement was approved in April 1982, however, Moskovitz approached Graubard and suggested starting a new partnership with Horowitz, a proposal Graubard rejected. Soon thereafter, the firm signed a $1.5 million lease on new office space and moved into its new quarters.

At the end of the three-year phase-down, having received back his capital as well as compensation exceeding that provided in the retirement agreement, Moskovitz — then 73 years old — became "of counsel” to the firm. However, he soon became unhappy with the law firm and contacted legal search consultants (Alan Roberts & Associates) regarding a possible move, with his tax partners Schiller and Young, to another law firm. Moskovitz told Roberts that his client Roche would accompany him if it approved the new firm. On November 30, 1987 Roberts put Moskovitz in touch with LeBoeuf Lamb Leiby & MacCrae, a New York based firm, and a four-month negotiation ensued, culminating on April 29, 1988 in defendants’ announced resignation from plaintiff law firm to join LeBoeuf.

According to plaintiff, LeBoeuf would not finalize any arrangement with defendants unless Roche approved the transfer of its business. Moskovitz likewise wanted to ensure that he would continue to represent Roche if he moved to LeBoeuf. In March 1988 Moskovitz asked Roche’s tax director whether the company had any objection to representation by LeBoeuf if he were to move there. Defendants’ meetings with Roche and with LeBoeuf became nearly contemporaneous: on March 4, defendants met with LeBoeuf partners at the Metropolitan Club and later that same week, Moskovitz met with Roche’s domestic general counsel. On at least one occasion, in April 1988, Moskovitz arranged for the head of LeBoeufs tax department to meet with Roche’s general counsel. Furthermore, plaintiff firm was engaged in settlement negotiations of a tax audit matter for Roche from late 1987 and continuing into the first quarter 1988 with potentially serious financial consequences. Moskovitz asked for and received assurances from a Roche executive that he would continue to handle the matter if he joined LeBoeuf.

Defendants had planned to remain at the firm for two months beyond their announced resignation, continuing to draw their compensation, but one week later — on May 6 — the firm locked them out of their offices and sued them for fraud, breach of fiduciary duty, breach of contract and unjust enrichment, seeking damages exceeding $10 million based upon lost revenues of the Roche account and $30 million in punitive damages. Defendants, consequently, began their association with LeBoeuf on May 9 and Roche immediately had its files transferred there.

In late 1989, defendants moved for summary judgment and plaintiff cross-moved for summary judgment on its breach of fiduciary duty claim. The court denied the motions (149 Misc 2d 481), except to dismiss any claim which could be construed to be based on representations that Moskovitz would "guarantee the retention” of certain clients or on assertions that defendants did not have the right to leave the firm and to hold plaintiffs cross motion in abeyance pending further discovery. On renewal in 1992 the trial court denied summary judgment finding that there were material questions of fact. The Appellate Division affirmed and granted leave to appeal to this Court on a certified question. Only Moskovitz appeals; plaintiff has not pursued a cross appeal from the denial of summary judgment on its breach of fiduciary duty claim.

Analysis

Urging that he be granted summary judgment, Moskovitz posits three issues: first, as a matter of public policy, is there a breach of fiduciary duty when a withdrawing partner, prior to announcing his resignation, "solicits” firm clients; second, is a contractual requirement that an attorney try to "integrate” or "institutionalize” clients into the firm legally enforceable; and third, is a cause of action for fraud stated by alleging that a promisor, at the time of making certain representations, lacked any intention to perform them. For the reasons that follow, we answer all three questions in the affirmative.

Breach of Fiduciary Duty

Both sides acknowledge the principle that law partners, no less than any other business or professional partners, are bound by a fiduciary duty requiring "the punctilio of an honor the most sensitive” (Meinhard v Salmon, 249 NY 458, 464; see also, Duane Jones Co. v Burke, 306 NY 172, 188-189). Both sides acknowledge as well the principle that an attorney stands in a fiduciary relation to the client (Matter of Kelly v Greason, 23 NY2d 368, 375).

Translating principles into practice, however, presents a far greater problem.

Moskovitz insists that the venerable principle of fiduciary duty among law partners must in today’s marketplace give way to the higher value of attorney responsibility to clients: keeping them informed of matters that affect them, allowing them counsel of their choice, and incident to that choice assuring unrestricted attorney mobility. He emphasizes that he had a direct, personal relationship with Roche, as its lawyer, for more than 30 years and therefore had not simply a right but actually an affirmative obligation to tell Roche, particularly in the midst of a serious tax matter he was handling for the client, that he was considering joining another law firm and ascertain whether it might have a conflict of interest there — and he did no more than that.

It is unquestionably difficult to draw hard lines defining lawyers’ fiduciary duty to partners and their fiduciary duty to clients. That there may be overlap, tension, even conflict between the two spheres is underscored by the spate of literature concerning the current revolving door law firm culture (see generally, Krane, Ethical and Professional Issues Associated with Departing Attorneys, printed in Employment Law and Human Resource Issues in Law Firms and Professional Partnerships, at 473 [1993]; Hillman, Law Firms and their Partners: The Law and Ethics of Grabbing and Leaving, 67 Tex L Rev 1 [1988]; Johnson, Solicitation of Law Firm Clients by Departing Partners and Associates: Tort, Fiduciary and Disciplinary Liability, 50 U Pitt L Rev 1 [1988]; Comment, Lateral Moves and the Quest for Clients: Tort Liability of Departing Attorneys for Taking Firm Clients, 75 Cal L Rev 1809 [1987]; Withdrawal, Retirement and Disputes: What You and Your Firm Need to Know [Berger ed 1986]).

One respected commentator opines that, while a departing partner’s preresignation negotiations with firm clients in most businesses would probably constitute breach of the common-law obligation of loyalty to the firm, in the case of law practice, "the public policy favoring client freedom of choice in legal representation should override the firm’s proprietary interest in holding its clientele” (Hazard, Ethical Considerations in Withdrawal, Expulsion, and Retirement, printed in Withdrawal, Retirement and Disputes, op. cit., at 36).

We agree with the trial court and Appellate Division, however, that as a matter of principle, preresignation surreptitious "solicitation” of firm clients for a partner’s personal gain — the issue posed to us — is actionable. Such conduct exceeds what is necessary to protect the important value of client freedom of choice in legal representation, and thoroughly undermines another important value — the loyalty owed partners (including law partners), which distinguishes partnerships (including law partnerships) from bazaars.

What, then, is the prohibited "solicitation”? As the trial court recognized, in classic understatement, the answer to that question is not "self-evident” (149 Misc 2d, at 486).

Given the procedural posture of the case before us, plainly this is not an occasion for drawing the hard lines. Factual variations can be crucial in determining whether an attorney’s duties have been breached, and we cannot speculate as to what conclusions will follow from the facts yet to be found in the case before us. We can, however, set out certain broad parameters, as the trial court did.

At one end of the spectrum, where an attorney is dissatisfied with the existing association, taking steps to locate alternative space and affiliations would not violate a partner’s fiduciary duties. That this may be a delicate venture, requiring confidentiality, is simple common sense and well illustrated by the eruption caused by defendants’ announced resignation in the present case. As a matter of ethics, departing partners have been permitted to inform firm clients with whom they have a prior professional relationship about their impending withdrawal and new practice, and to remind the client of its freedom to retain counsel of its choice (New York County Lawyers Assn. Ethics Opn 679 [1991]; Assn of Bar of City of NY, Ethics Opn 80-65 [1982]; see also, Johnson, Solicitation of Law Firm Clients by Departing Partners and Associates: Tort, Fiduciary and Disciplinary Liability, 50 U Pitt L Rev, at 99-106). Ideally, such approaches would take place only after notice to the firm of the partner’s plans to leave (see, Davis and Glen, Practical Issues of Professional Responsibility: Musical Chairs: Key Issues When A Lawyer Makes a Lateral Employment Move, NYLJ, Nov. 26, 1990, at 1, col 1 [part I] and Dec. 20, 1990, at 1, col 2 [part II]; Withdrawal and Termination No. 129, printed in ABA/BNA Lawyers’ Manual on Professional Conduct, at 91:720 [1993]).

At the other end of the spectrum, secretly attempting to lure firm clients (even those the partner has brought into the firm and personally represented) to the new association, lying to clients about their rights with respect to the choice of counsel, lying to partners about plans to leave, and abandoning the firm on short notice (taking clients and files) would not be consistent with a partner’s fiduciary duties (see, Matter of Silverberg [Schwartz], 81 AD2d 640, 641; Meehan v Shaughnessy, 404 Mass 419, 535 NE2d 1255; Adler, Barish, Daniels, Levin & Creskoff v Epstein, 482 Pa 416, 393 NE2d 1175, appeal dismissed and cert denied 442 US 907).

Although the trial court harbored the belief that discovery would facilitate resolution of this dispute as a matter of law, and therefore invited renewal of plaintiff’s cross motion for summary judgment, the volumes of depositions and affidavits have not in fact clarified the issues. With Moskovitz pointing to evidence that his preresignation conduct was nothing more than appropriate client informational service, and plaintiff law firm pointing to evidence that he was engaged in improper solicitation of Roche for his own benefit, no conclusion can be drawn at this juncture as to where on the spectrum this case falls. Plainly Moskovitz’s summary judgment motion was correctly denied.

Breach of Contract

Having concluded that there is an issue of fact with respect to the alleged breach of fiduciary duty, the same result follows as to the breach of contract claim, where the core of appellant’s legal challenge before us — that the supervening public policy favors client freedom of choice — is essentially the same. The retirement agreement provision in issue in no way compromised the freedom of clients to choose their counsel or the freedom of appellant to practice law. The provision simply obliged the firm’s senior partners to use their "best efforts” to expose firm clients to the work of other attorneys in the firm, as they deemed appropriate, in the hope that, with retirement of the seniors on the horizon, such familiarity would breed longevity in the relationship.

Given Moskovitz’s insistence that the client looked only to him, and would never have remained with the firm after his departure, whether the promised "best efforts” were in fact used is a disputed issue that must be determined at trial.

Fraud

Plaintiff’s cause of action for fraud — alleging that Moskovitz made false representations to the partnership prior to its approval of the retirement agreement with no intention of complying with those representations — similarly states a claim that survives summary judgment.

A cause of action for fraud may arise when one misrepresents a material fact, knowing it is false, which another relies on to its injury (see, Ochs v Woods, 221 NY 335, 338). A false statement of intention is sufficient to support an action for fraud, even where that statement relates to an agreement between the parties (Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954, 956; Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407; Sabo v Delman, 3 NY2d 155, 160; Prosser and Keeton, Torts § 109, at 763 [5th ed]).

Plaintiff charges that Moskovitz represented orally to the partnership that he and the other seniors would act to ensure the future of the firm by integrating and institutionalizing the clients when he never intended to do so and indeed was even considering the formation of a new partnership. Although (as the Trial Judge recognized) plaintiff may ultimately have difficulty persuading a fact finder of its assertions by clear and convincing evidence, a cause of action has been stated. And as with the claims for breach of fiduciary duty and breach of contract, material fact issues preclude summary judgment.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.

      . Moskovitz points out that the Roche business sent to LeBoeuf quickly dwindled below the aggregate compensation paid defendants. By 1993, all three defendants had left LeBoeuf.

      . While plaintiff now urges that this Court grant it summary judgment, we neither grant affirmative relief to a nonappealing party (see, Hecht v City of New York, 60 NY2d 57, 61-62) nor have the power of the Supreme Court to search a record and award summary judgment (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 111).

      . Against challenges based on vagueness of the promise, the trial court concluded that, as a matter of contract law, a meaningful contractual promise of this kind could be made. That conclusion is not challenged before us.


author: Bellacosa, J.

text:
    [654 NE2d 86, 630 NYS2d 265]
    In the Matter of Coalition Against Lincoln West, Inc., et al., Appellants, v City of New York et al., Respondents.
    Argued June 7, 1995;
    decided June 29, 1995

      POINTS OF COUNSEL

      Philip Pierce, New York City, Marshall C. Berger, Norman Marcus and John Van Der Tuin for appellants.
    I. Associates’ applications were neither "complete” nor "ready to proceed through” Uniform Land Use Review Procedure (ULURP) without the 1992 restrictive declaration and, hence, their approval violated ULURP. (Falbros Realty v Michetti, 200 AD2d 85; Connor v Cuomo, 161 Misc 2d 889; Matter of Long v Adirondack Park Agency, 76 NY2d 416; Community Bd. 7 v Schaffer, 84 NY2d 148; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539.) II. The late delivery of the 1992 restrictive declaration violated the specific terms of the 1982 restrictive declaration. (Republic Natl. Bank v Zimmcor U.S.A. Corp., 203 AD2d 107; Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248; Eagle Enters, v Gross, 39 NY2d 505; Church v Town of Islip, 8 NY2d 254; Cohalan v Lechtrecker, 84 AD2d 775, 56 NY2d 861; Matter of Flushing Prop. Owners Assn. v Planning Commn., 43 AD2d 515.) III. The 1992 restrictive declaration is at variance with the rationale for all respective declarations. (Church v Town of Islip, 8 NY2d 254; Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594; Cohalan v Lechtrecker, 84 AD2d 775, 56 NY2d 861; Matter of Flushing Prop. Owners Assn. v Planning Commn., 43 AD2d 515; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406; Crady v Newcomb, 142 AD2d 940.) IV. The 1992 environmental impact statement on disposal of the project’s sewage concealed, rather than identified, the impact of sewage by misrepresenting the capacity of the North River sewage treatment plant. (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Glen Head— Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484.) V. The failure of the 1992 environmental impact statement to disclose the 1982 restrictive declaration’s $31.5 million commitment to mitigate the project’s impact on neighboring subway stations precluded it from determining the "maximum practicable mitigation” of such impact. VI. The failure of the 1992 environmental impact statement to disclose the project’s finances precludes it from determining the "maximum practicable mitigation” of its environmental impact. (Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400.)

      Paul A. Crotty, Corporation Counsel of New York City (Jane S. Earle, Pamela Seider Dolgow and Terri Feinstein Sasanow

    of counsel), for City of New York and others, respondents.
    I. There is no statutory authority for petitioners’ claim that community boards are entitled to drafts of restrictive declarations at the start of their 60-day ULURP review period, or, for that matter, at any time during the ULURP period. Moreover, this claim was recently laid to rest by this Court in a case brought by the same Community Board that petitioners here argue was entitled to receive a draft of the 1992 restrictive declaration. In any event, since the Community Board in this case was, indeed, provided with a draft of the 1992 restrictive declaration months before its execution by the developer, the Board had more than ample time to review and comment upon the document. (Community Bd. 7 v Schaffer, 84 NY2d 148; Starhurst Realty Corp. v City of New York, 125 AD2d 148, 70 NY2d 605; Mauldin v New York City Tr. Auth., 64 AD2d 114; Lai Chun Chan Jin v Board of Estimate, 92 AD2d 218, 62 NY2d 900.) II. Restrictive declarations have no land use impact separate and apart from the underlying zoning and land use actions which they are designed to ameliorate (which actions are subject to full ULURP review). The terms of the 1982 restrictive declaration are inapplicable here because that restrictive declaration was executed in conjunction with the previously approved Lincoln West project which was never built. The 1992 restrictive declaration, executed in connection with the new and entirely different Riverside South project at issue in this case involved new zoning and land use actions, which triggered, anew, full ULURP review. The 1982 restrictive declaration was thus superseded by the new ULURP process out of which the 1992 restrictive declaration was born. In any event, even if the 1982 restrictive declaration applied, the procedural requirements of its article X were not violated here. III. The terms of the 1992 restrictive declaration are in all respects lawful, reasonable and proper. (Matter of Friends of Shawangunks v Knowlton, 64 NY2d 387; Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594; Church v Town of Islip, 8 NY2d 254; Cohalan v Lechtrecker, 84 AD2d 775, 56 NY2d 861; Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406; Matter of Saks v Petosa, 184 AD2d 512; Matter of Young v Town of Huntington, 121 AD2d 641; Matter of Perazzo v Lindsay, 30 AD2d 179, 23 NY2d 764; Matter of Flushing Prop. Owners Assn, v Planning

      Commn., 43 AD2d 515, 33 NY2d 520.) IV. The City Planning Commission’s and the City Council’s approvals of the Riverside South project fully complied with the substantive requirements of SEQRA, and were rationally based. (Matter of WEOK Broadcasting Corp. v Planning Bd., 79 NY2d 373; Akpan v Koch, 75 NY2d 561, 76 NY2d 846; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Aldrich v Pattison, 107 AD2d 258; Matter of Schiff v Board of Estimate, 122 AD2d 57, 69 NY2d 604; Matter of Neville v Koch, 79 NY2d 416; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Residents for More Beautiful Port Wash, v Town of N. Hempstead, 153 AD2d 727, 75 NY2d 703; Matter of Sutton Area Community v Board of Estimate, 165 AD2d 456, 78 NY2d 945.)

      Howard, Darby & Levin, New York City (Philip K. Howard and J. Jay Lobell of counsel), Sive, Paget & Riesel, P. C. (David Paget of counsel), and Rosenman & Colin (Jeffrey L. Braun of counsel), for Penn Yards Associates, respondent.
    I. The lower courts correctly rejected petitioners’ challenges to the ULURP applications and the restrictive declaration. (Starburst Realty Corp. v City of New York, 125 AD2d 148, 70 NY2d 605; West 97th-W. 98th Sts. Block Assn. v Volunteers of Am., 190 AD2d 303; Community Bd. 7 v Schaffer, 84 NY2d 148; Matter of Park E. Land Corp. v Finkelstein, 299 NY 70; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of 440 East 102nd St. Corp. v Murdock, 285 NY 298; Appelbaum v Deutsch, 66 NY2d 975; Matter of Frishman v Schmidt, 61 NY2d 823; Matter of People for Westpride v Board of Estimate, 165 AD2d 555, 78 NY2d 855; Matter of Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480.) II. The courts below correctly concluded that the Riverside South final environmental impact statement complies with all applicable standards. (Aldrich v Pattison, 107 AD2d 258; Akpan v Koch, 75 NY2d 561; Matter of WEOK Broadcasting Corp. v Planning Bd., 79 NY2d 373; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Schiff v Board of Estimate, 122 AD2d 57, 69 NY2d 604; Residents for More Beautiful Port Wash, v Town of N. Hempstead, 153 AD2d 727, 75 NY2d 703; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222.)

      Edward N. Costikyan, New York City, and David Nissenbaum for Municipal Art Society of New York and others, amici

      curiae.

    Riverside South reflects broad-based consensus about the character and environment of the Upper West Side.

      Martin Gallent, Jackson Heights, for Metro Chapter of the American Planning Association and another, amici curiae.

    If the decisions of the courts below are not overruled, the restrictive declaration will be removed as a medium to arrive at a reasonable consensus that the parties could rely upon and the State of New York will loose a valuable planning tool.
   OPINION OF THE COURT

Bellacosa, J.

This Court granted petitioners permission to appeal an order of the Appellate Division, which affirmed a judgment of Supreme Court, dismissing their CPLR article 78 petition. The New York City Council granted special use permits to respondent developer, Penn Yards Associates, and amended the City Map and the Zoning Map to allow for construction of the Riverside South project, a large scale mixed-use development on a 74-acre parcel located on the west side of Manhattan along the Hudson River. The petitioners seeking to invalidate the three authorizing resolutions of the New York City Council include Coalition Against Lincoln West, a corporation of tenants residing on Manhattan’s West Side, as well as other cooperative apartment corporations and tenant associations.

The primary issues concern the scope and timing of local Community Board 7 review and involvement under both the Uniform Land Use Review Procedure (ULURP) and a restrictive declaration entered into by the City with other parties in 1982. Specifically, petitioners claim that: (1) under ULURP, a land use application may not be deemed "complete” by the Department of City Planning if the application does not contain the proposed superseding restrictive declaration of 1992; (2) the modification/cancellation restrictions of the 1982 restrictive declaration run with the land and accord the local community board a 30-day review period which is linked to the 60-day ULURP review period; and (3) late delivery of the 1992 restrictive declaration denied Community Board 7 this 30-day review opportunity.

We agree with the courts below that ULURP contains no legal requirement for a superseding restrictive declaration to be included in order to deem an application "complete,” and that the City Planning Department’s "completeness” determination is rational and not arbitrary or capricious (see, Matter of Frishman v Schmidt, 61 NY2d 823, 825). Moreover, the 30-day review period established in the 1982 restrictive declaration is independent of the 60-day ULURP review period and, in any event, the Community Board had ample time to review the superseding restrictive declaration before the City Council finally acted. Consequently, we affirm the order of the Appellate Division.

The subject property consists of a cluster of parcels covering 74 acres, bordered by the Hudson River on the west, 72nd Street on the north, a vertical embankment near West End Avenue on the east, and 59th Street on the south. In the early 1980s, Lincoln West, the former owners of the property, had planned a large-scale development project. In 1982, the developers executed a restrictive declaration containing a combination of promises, proposed agreements and covenants in exchange for the required approvals, zoning changes and permits from City and State agencies. The plans and preliminary work on the Lincoln West project collapsed in 1984. The permits also lapsed and alterations to the City Map were never filed. The acreage was then acquired by respondent developer, Penn Yards Associates, an affiliate of the Trump Organization. In conjunction with various organizations and City agencies, Penn announced an agreement to develop the somewhat scaled back multiuse Riverside South project, the 74-acre assemblage at issue in this lawsuit.

In December 1991, Penn applied for an amendment to the City Map pursuant to ULURP. In February 1992, Penn filed an application for an amendment to the City Zoning Map and an application for special use permits. On May 15, 1992, the Department of City Planning and the Department of Environmental Protection, acting as co-lead agencies under the State Environmental Quality Review Act (SEQRA), issued a notice of completion of the draft environmental impact statement (DEIS). The DEIS had been prepared by Penn’s consultant, and the substantive content was framed by scoping documents prepared by the co-lead agencies (see, 6 NYCRR 617.10 [c]; see also, 6 NYCRR 617.7, 617.8, 617.9).

On May 19, 1992, respondent Department of City Planning, pursuant to ULURP, certified the application "complete” and forwarded it, together with the DEIS, to Community Board 7 for review and advisory comment. At that point, a superseding restrictive declaration had neither been filed with Penn’s application to the Department of City Planning, nor forwarded to the Community Board. On July 10, 1992, the Community Board received the draft superseding restrictive declaration. After numerous public hearings, on July 27, 1992, Community Board 7 issued its 71-page report analyzing the project. In a 17-page resolution, it recommended disapproval of the Riverside South project by a 35-to-l vote.

Additional public hearings on the ULURP application were held in August and September 1992. Public hearings on the DEIS were held in September, with the co-lead agencies issuing a notice of completion of the 2,500-page final environmental impact statement in October 1992. After the relevant parties reached agreement as to appropriate and practicable mitigative measures, in December 1992, the City Council approved the final conditions on the project. These conditions were incorporated into the 1992 superseding restrictive declaration.

Penn’s application for the project, together with applicable restrictions and necessary authorizations, were thereafter officially approved and adopted in three City Council resolutions. The official resolutions (1) approved changes in the City Map; (2) amended the Zoning Map to allow for the project’s development; and (3) approved special use permits for the project and incorporated modifications to the prior restrictive declaration, including sewage output limitations and payment of $10 million for local subway system improvements.

Petitioners sued to annul the three resolutions on grounds that: (1) the ULURP application could not be deemed "complete” because the superseding restrictive declaration was not included; (2) delivery of the 1992 restrictive declaration to the Community Board with only 18 days remaining of the 60-day ULURP review period violated the 30-day review period of the 1982 restrictive declaration’s modification provision; (3) the 1992 restrictive declaration was illegal because it denied petitioners’ members enforcement rights; and (4) SEQRA had been violated.

Supreme Court dismissed the lawsuit. It found that the restrictive declaration "is not one of the documents required under sec[tian] 197-c [of the New York City Charter]” for a completeness determination. The court also accorded "great weight” to the City Planning Commission’s decision not to include the restrictive declaration as a necessary component of a "complete” application. The court further concluded that the modification/cancellation provisions of the 1982 restrictive declaration did not run with the land and, therefore, had no impact on the approval of developer Penn’s land use application and the superseding restrictive declaration. Finally, Supreme Court concluded that there was no infirmity with respect to the legality of the 1992 restrictive declaration or the adequacy of the SEQRA process. The Appellate Division affirmed (208 AD2d 472), essentially reiterating the reasoning of Supreme Court.

We, too, reject petitioners’ arguments and conclude that (1) the superseding restrictive declaration is not a legal prerequisite to a municipal determination of application "complete[ness]” under ULURP (New York City Charter § 197-c [a], [b], [c]), and (2) under the facts presented here, the City agencies acted rationally and within their discretionary authority in making the "complete[ness]”-of-application determination (see, Appelbaum v Deutsch, 66 NY2d 975, 977 [applying deferential "irrational, unreasonable” judicial review standard to decisions by agency charged with administering zoning resolution]; accord, Matter of Frishman v Schmidt, 61 NY2d 823, 825, supra). Neither the New York City Charter provisions (§ 197-c [a], [b], [c], [i]) nor the implementing regulations (62 RCNY 2-02 [a] [5] [iv], [v]) make the filing of a superseding restrictive declaration a prerequisite to a municipal entity’s deeming an application complete for ULURP notification and processing purposes. Moreover, the City determined that given the nature of a restrictive declaration, which would evolve to definiteness over the course of project discussions and negotiations, it would not be feasible to officially fix or set a superseding restrictive declaration at the initial application stage of the process. Therefore, the City agencies reasonably concluded that the superseding restrictive declaration was not a necessary component of a "complete” application. We, thus, uphold the City’s determination in this respect as correct and neither arbitrary nor capricious.

Petitioners hypothesize that if the superseding restrictive declaration is not required at the initial application phase, then the Department of City Planning is, in essence, exercising "unfettered discretion” in determining "complete[ness]” of a land use application. They argue further that this theorem produces an irrational and unreasonable result because it would eviscerate meaningful Community Board advisory involvement in the ULURP process. These contentions are unavailing.

The New York City Charter directs that "the department of city planning shall be responsible for certifying * * * [ULURP] applications complete and ready to proceed” in accordance with other express statutory provisions (§ 197-c [c]). These provisions (1) specify with particularity the indispensable minimum inclusions for a ULURP application (see, NY City Charter § 197-c [b]); and (2) direct the City Planning Commission to promulgate regulations concerning what constitutes a complete application for ULURP purposes (NY City Charter § 197-c [i]). These regulations were indeed promulgated and, like the authorizing statute, they do not require inclusion of a restrictive declaration for completeness-of-application certification (see, 62 RCNY 2-02 [a] [5] [iv], [v]).

The regulations are, themselves, reasonable, as is the City’s application of them in the instant case. The regulations comprehensively define the required components of a complete application as: (1) a standard application form (62 RCNY 2-02 [a] [5] [i]); (2) accompanying documents, maps, plans, and drawings (62 RCNY 2-02 [a] [5] [ii]); (3) jurisdictional information (62 RCNY 2-02 [a] [5] [iii]); (4) completed reviews, reports, and sign-offs by involved State and City agencies (62 RCNY 2-02 [a] [5] [iv]); and (5) a determination of negative declaration or notice of acceptance of a DEIS (62 RCNY 2-02 [a] [5] [v]). Under the implementing regulations, then, an application cannot be deemed "complete” until all potential negative environmental impacts have been identified and are, thus, brought to the attention of all interested parties for meaningful review and comment. That was done and followed to the letter in this case. The municipal respondents and the land use developer applicant met the prescriptions of the statute and the regulations. Consequently, the City officials cannot be said to have acted beyond their powers and authority, and there is, thus, no basis for the courts to nullify their resolutions.

We are fortified in our view and analysis of this case by Community Bd. 7 v Schaffer (84 NY2d 148). There, we held that the Community Board lacked capacity to challenge the Department of City Planning’s action in denying the Community Board’s demand, under the Freedom of Information Law, for a draft restrictive declaration and related correspondence concerning a different project — Trump City — which was later abandoned (id., at 152, 157-159). The reasoning of that case is cogently apt in that we noted the Community Board’s "limited role in the land use planning process” (id., at 157). Our analysis was also rooted in the relevant express statutory and regulatory requirements (id., at 159). Significantly, in concluding that the Community Board’s advisory mission could be accomplished without its having access to the restrictive declaration, this Court relied on the fact that the New York City Charter and the attendant regulations were silent as to restrictive declarations being part of the ULURP application review process (id., at 159; see, NY City Charter § 197-c [b], [i]; 62 RCNY 2-02 [a] [5] [i]-[v]). The Schaffer dispositional analysis is telling in the resolution of the instant controversy.

Next, we find unavailing petitioners’ arguments that the 30-day modification/cancellation provisions of the 1982 restrictive declaration (art X) are relevant here and that they were violated. Article XI, § 11.05 of the 1982 restrictive declaration provides:

"Except for the purpose of amending, cancelling, or modifying this Declaration pursuant to Article X [which accords the local community board 30 days to review the proposed modification], references * * * to 'Declarant’ shall be deemed to include Declarant’s heirs, successors, assigns and legal representatives in respect of the Subject Property” (emphasis added).

Thus, while other provisions of the 1982 restrictive declaration may run with the land, the modification/cancellation provisions of article X do not, by virtue of its explicit exception.

Even were the 30-day period applicable to Community Board 7’s review of the superseding restrictive declaration, petitioners’ argument still falters. Nothing in the 1982 restrictive declaration links its 30-day window to the 60-day ULURP application review period. So long as Community Board 7 had 30 days in which to consider the superseding restrictive declaration prior to the City’s final action on it, the 30-day provision of the 1982 restrictive declaration is satisfied. That opportunity was available to Community Board 7. It received the superseding restrictive declaration on July 10, 1992. The City did not act to accept and adopt the new restrictive declaration in final form under the pertinent resolution until December 1992. Community Board 7 held several public hearings after receiving the draft superseding restrictive declaration. In its advisory report, it included extensive commentary on the superseding restrictive declaration and Riverside South as a whole, concluding with its negative recommendation that the project should not be built. Nothing is found in the record showing that the City failed to accept any Community Board input on the new restrictive declaration during the entire preapproval period, which far exceeded the 30-day review window. Consequently, petitioners’ asserted procedural violation, based on the Community Board’s receipt of the 1992 restrictive declaration at a point in time when only 18 days remained on its 60-day ULURP application review period, is of no legal or practical import. The legality of the municipal approval processes has been tested and found satisfied in all the courts. No further legal impediments, within the framework of this litigation, would appear to block Riverside South being built.

We have considered petitioners’ remaining contentions and conclude that they are without merit. Accordingly, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs.


author: Levine, J.

text:
    [654 NE2d 90, 630 NYS2d 269]
    Felix T. Mullen, Respondent, et al., Plaintiff, v Zoebe, Inc., et al., Defendants, and Li-Var Realty Corp., Sued Herein as Li-Var Realty, Appellant.
    Argued June 8, 1995;
    decided June 29, 1995

      POINTS OF COUNSEL

      Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Nina Cangiano, Steven L. Young and Joseph F. Muratore of counsel), for appellant.
    The conclusion of the Court below that comparative negligence is not a defense to a cause of action asserted under General Municipal Law § 205-a violates the spirit and intent of CPLR article 14-A. (Arbegast v Board of Educ., 65 NY2d 161; Lippes v Atlantic Bank, 69 AD2d 127; Barker v Kallash, 91 AD2d 372; Sullivan v Held, 81 AD2d 663; Kenavan v City of New York, 70 NY2d 558; Santangelo v State of New York, 71 NY2d 393; McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921; Lusenskas v Axelrod, 183 AD2d 244; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494.)

      Barry, McTiernan & Moore, New York City (Roger P. Mc-Tiernan, William E. Fay, III, and Laurel A. Wedinger of counsel), for respondent.
    I. General Municipal Law § 205-a creates a statutory cause of action which is based on a specific public policy of the State of New York for the benefit and protection of firefighters. (Sicolo v Prudential Sav. Bank, 5 NY2d 254; Kenavan v City of New York, 70 NY2d 558; Santangelo v State of New York, 71 NY2d 393; Nykanen v City of New York, 14 NY2d 697; Carroll v Roman Catholic Diocese, 26 AD2d 552, 19 NY2d 658; McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921; Sullivan v Held, 81 AD2d 663; Johnson v Riggio Realty Corp., 153 AD2d 485, 74 NY2d 945.) II. Actions brought pursuant to General Municipal Law §§ 205-a and 205-e are not the type of actions to be subjected to the defense of comparative negligence under CPLR article 14-A. (Arbegast v Board of Educ., 65 NY2d 161; MacNair v Salomon, 199 AD2d 170; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Putnam Rolling Ladder Co. v Manufacturers Hanover Trust Co., 74 NY2d 340; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; Dole v Dow Chem. Co., 30 NY2d 143; Grcic v City of New York, 139 AD2d 621.)

      Paul A. Crotty, Corporation Counsel of New York City (Alan Beckoff and Stephen J. McGrath of counsel), for City of New York, amicus curiae.

    The Court below incorrectly analogized General Municipal Law § 205-a to Labor Law § 240 (1), to which comparative negligence has been held inapplicable. The proper analogous statute is Labor Law §241 (6), which this Court has held is subject to the defense of comparative negligence. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Long v Forest-Fehlhaber, 55 NY2d 154; Rocovich v Consolidated Edison Co., 78 NY2d 509; Tuohey v Gainsborough Studios, 183 AD2d 636; Johnson v Riggio Realty Corp., 153 AD2d 485, 74 NY2d 945; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 1054; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423; Del Casino v City of New Rochelle, 176 AD2d 282.)

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

    The Court below correctly held that comparative negligence is not a defense to an action under General Municipal Law § 205-a where (1) both the legislative history and case authority show that General Municipal Law § 205-a is a statute of strict liability; (2) as such, it is akin to Labor Law § 240, a statute in which comparative negligence does not apply; (3) should comparative negligence be deemed a defense, General Municipal Law § 205-a would become indistinguishable from a statutory form of common-law negligence; and (4) it would be contrary to public policy for the jury to examine judgments made by firefighters under extreme and emergency conditions of fighting a fire in order for a plaintiff to recover under the statute. (Kenavan v City of New York, 70 NY2d 558; Santangelo v State of New York, 71 NY2d 393; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423; McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921; Cotter v Spear, 139 AD2d 555; Lyden v Rasa, 39 AD2d 716; Gerhart v City of New York, 56 AD2d 790, 42 NY2d 819; Nykanen v City of New York, 14 NY2d 697; Carroll v Pellicio Bros., 44 Misc 2d 832, affd sub nom. Carroll v Roman Catholic Diocese, 26 AD2d 552, 19 NY2d 658.)

      Edward M. Cooke, Monticello, and O’Connell and Aronowitz, Albany (Cornelius D. Murray and Kathleen M. Treasure of counsel), for Firemen’s Association of the State of New York, amicus curiae.

    I. An action brought pursuant to General Municipal Law § 205-a is not an "action” within the meaning of CPLR article 14-A. (Sicolo v Prudential Sav. Bank, 5 NY2d 254; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Howell v Mills, 53 NY 322.) II. The minimum recoveries established for successful claimants suing under General Municipal Law § 205-a are inconsistent with defendant-appellant’s theory that comparative negligence applies to such actions. (Sicolo v Prudential Sav. Bank, 5 NY2d 254.) III. The concepts of comparative negligence and/or culpable conduct do not apply to General Municipal Law § 205-a in which proximate cause is not an issue. (McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921.) IV. Even if this Court were to hold that CPLR article 14-A applies to this case, involving a paid firefighter, its opinion should be narrowly written so as not to apply to volunteer firefighters. (Rosner v Paley, 65 NY2d 736.)
   OPINION OF THE COURT

Levine, J.

Plaintiff, a uniformed firefighter in the Fire Department of the City of New York, incurred a serious back injury while responding to a fire at defendant’s two-story building in Rock-away Park, Queens County. The first floor of the building was occupied by two commercial establishments and the second floor by illegal single-room occupancies. The fire was well in progress upon the arrival of plaintiff’s ladder company. An advanced fire was found on the second floor, blowing out one side of the building and igniting the siding of the building. Screams were heard of someone trapped on the second floor. Plaintiff and Firefighter Richard Sullivan climbed stairs to the second floor and attempted to open the door to a room from which the screams seemed to have emanated. They were unable to force entrance because the door opened inward and was blocked by furniture. Sullivan, therefore, hunched over and plaintiff climbed on his shoulders to enter the room through a small elevated window he smashed open. Upon entering through the window, he fell to the floor and felt his body hit something during the fall. He experienced spasms and severe pain in his leg and lower back, but was able to help in moving the furniture so that the door to the room could be opened. He was then carried out and removed from the scene by ambulance.

It is conceded that defendant’s building contained numerous violations of fire prevention and safety provisions contained in Multiple Dwelling Law § 248 (governing single-room occupancy buildings) and of the Administrative Code of the City of New York, including the absence of fire alarms, smoke detectors and a sprinkler system.

Plaintiff sued on several theories, among which was a cause of action under General Municipal Law § 205-a. The trial court denied defendant’s request to charge the jury on comparative fault as between plaintiff and defendant pursuant to CPLR 1411 on plaintiffs General Municipal Law § 205-a cause of action, and the jury returned a substantial verdict in plaintiffs favor. On appeal, the Appellate Division upheld the trial court’s refusal to charge comparative fault, but modified to reduce the damages awarded, directing a new trial unless plaintiff stipulated to the reduction, in which event the judgment as so modified was affirmed (205 AD2d 598). Plaintiff so stipulated, and we granted defendant leave to appeal to address the issue of whether comparative fault under CPLR article 14-A applies in an action based upon General Municipal Law § 205-a. We agree with the courts below that the culpability of an injured or deceased firefighter in contributing to the happening of the injury-producing accident may not be invoked by a defendant property owner or occupier to reduce damages claimed under General Municipal Law § 205-a. Thus, we affirm the Appellate Division.

As authoritative, earlier decisions involving General Municipal Law § 205-a explain, that section, enacted originally some 60 years ago (L 1935, ch 800), "created a [new] statutory cause of action — where none existed at common law” (Kenavan v City of New York, 70 NY2d 558, 567), and did not merely define a statutory standard of care to be applied in a common-law negligence action (id.; see also, McGee v Adams Paper & Twine Co., 26 AD2d 186, 194-195, affd 20 NY2d 921).

General Municipal Law § 205-a was enacted to benefit a specific class — firefighters—in two ways. First, "to ameliorate the harsh effects of the firefighter rule’s bar to recovery in common-law negligence by imposing 'liability in any case where there is any practical or reasonable connection between a [statutory or code] violation and the injury or death of a fire[fighter]’ ” (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441 [quoting McGee v Adams Paper & Twine Co., 26 AD2d, at 195, supra] [brackets in original]).

The firefighter’s rule, as we have described it, bars recovery by firefighters against real property owners and occupiers for "negligence in the very situations that create the occasion for their services” (Santangelo v State of New York, 71 NY2d 393, 397). We have recently further refined the rule to give landowners immunity from liability from their own negligence causing injuries to firefighters when "the performance of the * * * firefighter’s duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury” (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d, at 439, supra [emphasis in original]).

When General Municipal Law § 205-a was first enacted and until recently, the dominant rationale for the firefighter’s rule was that, when firefighters enter the profession, they are expected to assume, as part of their duties, the risks of fire-related injuries, including the risk of negligence by property owners and occupiers in maintaining their premises (see, Raymond v Republic Light, Heat & Power Co., 262 NY 498, 499 [1933]; see also, McGee v Adams Paper & Twine Co., 26 AD2d, at 190, supra). In Santangelo v State of New York (supra), we expressed a preference for a policy-based justification for denying recovery: that firefighters (and police officers) should not be awarded damages for the very hazards that create the need for the performance of their duties, i.e., dangers which they are especially "trained and compensated to confront” (id., 71 NY2d, at 397). In creating a right of recovery under General Municipal Law § 205-a for an injury to or the death of a firefighter connected with violations of fire safety or prevention statutes, codes or rules, the Legislature determined that firefighters should not be expected to assume the risks of additional hazards arising out of such violations (see, McGee v Adams Paper & Twine Co., 26 AD2d, at 195, supra; see also, Zanghi v Niagara Frontier Transp. Commn., 85 NY2d, at 443, supra). Thus, to that degree, the harsh results of the firefighter’s rule are obviated by General Municipal Law § 205-a.

The second benefit the Legislature sought to confer specifically on firefighters by enacting General Municipal Law § 205-a was protection through encouragement of property owners and occupiers to comply with fire safety and prevention codes. By imposing liability (including statutory minimum awards) in the case of injury or death of a firefighter related to safety violations, section 205-a "affords firefighters protection from those premises harboring violations of safety provisions” (Kenavan v City of New York, 70 NY2d 558, 567, supra [emphasis supplied]). "The Legislature, in creating [a cause of action under General Municipal Law § 205-a] in the interests of protecting fire[fighters] against the hazards of such violations * * * intended to impose liability in any case where there is any practical or reasonable connection between a violation and the injury or death of a fire[fighter]” (McGee v Adams Paper & Twine Co., 26 AD2d, at 195, supra [emphasis supplied]). Thus, section 205-a reflects the Legislature’s awareness that, by the very nature of their duties, firefighters are incapable of avoiding the additional hazards at fires resulting from fire safety and prevention code violations on the premises.

Applying comparative fault as between a code-violating property owner and an injured or deceased firefighter is incompatible with and undermines the protective purposes of General Municipal Law § 205-a. As we have described in relating the history of General Municipal Law § 205-a, it was intended to carve out an exception to the dominant rationale of the firefighter’s rule that firefighters assume the risk of hazards created by ordinary negligence encountered in the performance of their duties. Underlying this statutory exception to the firefighter’s rule was the Legislature’s determination that fire professionals as a class should be protected from the additional dangers of fire safety and prevention code violations, and that assumption of risk doctrine should not apply when a firefighter is injured or killed as a result of exposure to such additional hazards because such additional dangers are unavoidable if safety violations exist on premises to which firefighters must respond in case of a fire. Comparative fault diminishing a firefighter’s recovery would undermine the legislative goal to fully protect them from code violation hazards, and would subvert the law’s deterrent effect.

Solid judicial doctrine supports our unwillingness to apply comparative fault to an injured or deceased firefighter’s statutory cause of action here. Thus, the Restatement (Second) of Torts provides that, although a plaintiff’s contributory negligence is generally a defense to a negligence action based upon a statutory violation, such is not the case when "the effect of the statute is to place the entire responsibility for such harm as has occurred upon the defendant” (Restatement [Second] of Torts § 483 [emphasis supplied]). The statute should be given that effect, of placing full responsibility upon the defendant, "particularly where it is enacted in order to protect a certain class of persons against their own inability to protect themselves” (id., at comment c).

The foregoing rule of the tortfeasor’s full responsibility for injuries to a protected class member resulting from a statutory safety violation has been applied to remove the defense of contributory negligence (see, Karpeles v Heine, 227 NY 74, 80; Stern v Great Is. Corp., 250 App Div 115, 116), and the defense of assumption of risk (see, Texas & Pac. Ry. Co. v Rigsby, 241 US 33, 43). Our rejection in Nykanen v City of New York (14 NY2d 697) of contributory negligence as a complete defense in a General Municipal Law § 205-a action, before enactment of CPLR article 14-A, is completely consistent with that Restatement rule imposing full responsibility.

The Restatement rule remains equally appropriate to General Municipal Law § 205-a actions now that comparative fault has supplanted contributory negligence and assumption of risk as complete defenses. As we have demonstrated, section 205-a was intended to protect firefighters as a class from the unavoidable hazards of violations of fire safety and prevention statutes and codes. Thus, "the effect of [General Municipal Law § 205-a] is to place the entire responsibility for such harm as has occurred [because of the safety statute or code violation] upon the defendant” (Restatement [Second] of Torts § 483).

That General Municipal Law § 205-a was intended to impose the entire responsibility for injuries due to safety code violations on the property owner, undiminished by any contributing negligence of, or assumption of risk by, the plaintiff firefighter, is also supported by the statutory imposition of a minimum recovery of $10,000, in the case of a firefighter’s injury, and $40,000, in the case of a firefighter’s death, against the offending real property owner or occupier.

Moreover, neither the language nor the legislative history of CPLR article 14-A mandates the application of comparative fault to diminish a plaintiff’s recovery in an action under General Municipal Law § 205-a. Although comparative culpability of a plaintiff and defendant applies "[i]n any action to recover damages for personal injury, injury to property, or wrongful death” (CPLR 1411), we have already rejected its application in a suit by an injured worker based upon a violation of Labor Law § 240 (1) (see, Bland v Manocherian, 66 NY2d 452, 461). Significantly, suits to recover damages for "personal injuries” are treated distinctly under the Civil Practice Law and Rules with respect to the Statute of Limitations, from personal injury claims (such as those under General Municipal Law § 205-a) where "liability [is] imposed by statute” (see, CPLR 214 [2]; cf., CPLR 214 [5]; see, Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 303-305; see also, Sicolo v Prudential Sav. Bank, 5 NY2d 254, 257-258).

Even more importantly, application of comparative fault doctrine as between the plaintiff and defendant in suits under General Municipal Law § 205-a manifestly would not further the predominant purpose of CPLR article 14-A. That purpose, according to the Chair of the Judicial Conference CPLR Advisory Committee which formulated and proposed adoption of article 14-A, was to achieve "equitable apportionment of damages among those whose culpable conduct produced the injury” (Hamburger, The 1975 New York Judicial Conference Package: Class Actions and Comparative Negligence, 25 Buffalo L Rev 415, 433-434 [1976] [emphasis supplied]). But, despite enactment of CPLR article 14-A, the firefighter’s rule prevents such equitable apportionment of damages as between injured firefighters and property owners and occupants. As we have seen, if the culpability of the property owner or occupier consists solely of ordinary negligence, CPLR article 14-A notwithstanding, the property owner is immunized from liability under the rule and the injured firefighter must bear the entire loss. Thus, applying CPLR article 14-A to a firefighter’s action under General Municipal Law § 205-a will not achieve complete "equitable apportionment” of damages according to the proportionate culpability of the firefighter and the property owner or occupier. Imposition of comparative fault would only enhance the advantage real property owners and occupiers already enjoy in the allocation of responsibility for fire-related injuries under the firefighter’s rule. Contrariwise, imposition of full responsibility upon the property owner or occupant in an action under General Municipal Law § 205-a serves to redress in part the imbalance in apportionment of damages according to relative culpability caused by the firefighter’s rule.

For all the foregoing reasons, we reject the application of comparative fault under CPLR article 14-A to diminish a plaintiffs recovery in an action brought pursuant to General Municipal Law § 205-a.

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

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

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

      . CPLR 1411 provides: "In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”

      . General Municipal Law § 205-a provides in pertinent part: "In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments * * * the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance of any duty imposed by the * * * fire department * * * a sum of money, in case of injury to person, not less than ten thousand dollars, and in case of death not less than forty thousand dollars”.

      . Section 483 of the original Restatement of Torts similarly provided: "If the defendant’s negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute.”