text:
    Theodore H. Sheldon et al., Respondents, v Town of Highlands, Appellant, et al., Respondents.
    Argued February 8, 1989;
    decided March 28, 1989

      POINTS OF COUNSEL

      Myron I. Mandel for appellant.
    I. There was no constitutional mandate to the Town of Highlands to hold a public hearing prior to requesting the New York State Legislature to adopt a home rule law changing the boundaries of the Fort Montgomery Sewer Improvement Area. (Valley Farms Co. v City of Yonkers, 193 App Div 433, 231 NY 558, affd sub nom. Valley Farms Co. v Westchester, 261 US 155; New York Cent. & Hudson Riv. R. R. Co. v City of Rochester, 129 App Div 805, 198 NY 570; Stuart v Palmer, 74 NY 183; People ex rel. Scott v Pitt, 169 NY 521; People v Turner, 145 NY 451; People ex rel. Simpson v Wells, 181 NY 252; Matter of City of New York [801 —815 E. N. Y. Ave.], 290 NY 236; New York Cent. & Hudson Riv. R. R. Co. v City of Yonkers, 238 NY 165; Baldwin v City of Buffalo, 6 NY2d 168; Amico v Erie County Legislature, 36 AD2d 415, 30 NY2d 729.) II. New York State Laws of 1983 (ch 755) was duly requested and enacted in accordance with all applicable laws and the statutes.

      Samuel W. Eager, Jr., for Theodore H. Sheldon and another, respondents.
    I. The Town of Highlands proceeded illegally in acting to add petitioners-respondents’ property to the Fort Montgomery Sewer Improvement Area. II. Chapter 755 of the Laws of 1983 is unconstitutional. (People ex rel. Scott v Pitt, 169 NY 521; New York Cent. & Hudson Riv. R. R. Co. v City of Rochester, 129 App Div 805; Chesebro v Los Angeles County Dist, 306 US 459; Browning v Hooper, 269 US 396; Matter of Floyd-Jones v Town Bd., 249 NY 398.) III. There were other improprieties in the assessment of petitioners-respondents’ land.

      Robert Abrams, Attorney-General (Julie S. Mereson, O. Peter Sherwood and Peter H. Schiff of counsel), in his statutory capacity under section 71 of the Executive Law.
    The Town was not required by either the New York State Constitution or dictates of due process in either the New York State or United States Constitutions to hold a public hearing before it made a home rule request to the Legislature. (Chesebro v Los Angeles County Dist., 306 US 459; Browning v Hooper, 269 US 396; Matter of Floyd-Jones v Town Bd., 249 NY 398; New York

      Cent. & Hudson Riv. R. R. Co. v City of Rochester, 129 App Div 805, 198 NY 570.)
   OPINION OF THE COURT

Kaye, J.

In 1983, in response to a special home rule request, the Legislature enacted a law redefining the boundaries of an established sewer improvement district within the Town of Highlands. Petitioners, whose property was affected by the statute, contend that they were denied due process of law because there was no notice or hearing prior to the Town’s request for the special legislation or the Legislature’s adoption of it. We conclude that petitioners were not entitled to notice or a hearing, and therefore reject their contention.

Pursuant to Town Law § 209-q, in August 1981 the Town of Highlands established the Fort Montgomery Sewer Improvement Area for the purpose of constructing a sanitary sewer system within its boundaries. After affording the public an opportunity to inspect a map, plan and report of an engineering consultant and conducting a public hearing, the Town Board on August 31, 1981 approved the project. The resolution recited the maximum amount to be expended, the anticipated financing, and the boundaries of the benefited area. Nearly two years later, in Spring 1983, while preparing advertisements for construction bids, it became apparent to the Town that the boundaries had been incorrectly drawn: they ran across certain lots rather than along property lines. As a result, only a portion of those properties could be assessed the benefit charges even though the whole lots would enjoy the improvements.

The Town set about correcting its error. While the Town Law itself provides a mechanism for changing boundaries of a proposed improvement area (see, Town Law § 209-q [4]), that mechanism was unavailable because of the passage of time, and the Town was of the view that it lacked power to effect the necessary change. By its chief executive officer, with the concurrence of a majority of the membership of the local legislative body, the Town submitted a request to the Legislature for a "special” or "home rule” law (see, NY Const, art IX, § 2 [b] [2]; Municipal Home Rule Law § 40), representing in its request that it did not have the power to enact such legislation by local law. The memorandum submitted in support of the bill describes the Town’s error and recites as justification for the proposed law that certain property owners would otherwise "reap the benefit of the municipal sewer for their property but the Town will not be able to assess benefit charges against the whole parcel of property.” (Assembly Mem in Support of Legislation, Governor’s Bill Jacket, L 1983, ch 755.) By chapter 755 of the Laws of 1983, the Legislature complied with the Town’s request, enacting a statute that simply describes the property included within the improvement area. Petitioners’ property, previously only partly within the district, thus was brought wholly within it.

Public hearings ensued regarding cost and assessments. Thereafter, on November 12, 1985 the Town Board increased the amount proposed to be expended for the improvements, adopted a system designed to spread the charges among the benefited properties, and approved the proposed assessment roll.

Petitioners commenced the present article 78 proceeding against the Town to invalidate the assessment on grounds that the legislation was invalid and the assessment disproportionate to the benefit received. Supreme Court dismissed the petition, concluding that there was no support for either challenge. After converting the proceeding to a declaratory judgment action (CPLR 103 [c]), the Appellate Division reversed and declared the statute unconstitutional. Relying upon Stuart v Palmer (74 NY 183 [1878]), the court concluded that petitioners had been denied due process of law under the State and Federal Constitutions because they did not have notice or an opportunity to be heard prior to enactment of the statute. On the Town’s appeal, we now reverse.

The right of landowners to notice and a hearing before the boundaries of an improvement district are fixed so as to include their property generally depends upon whether the act of creating the district is in the nature of a "legislative” or "judicial” proceeding (see, Withnell v Ruecking Constr. Co., 249 US 63, 68-69; New York Cent. & Hudson Riv. R. R. Co. v City of Rochester, 198 NY 570, affg on opn at 129 App Div 805; see also, Parsons v District of Columbia, 170 US 45, 52-56; 70A Am Jur 2d, Special or Local Assessments, § 145, at 1248-1249 [1987]).

In a "legislative” proceeding, district boundaries are established by statute, as an incident of the Legislature’s power to determine that a public improvement should be made and to define the district to be benefited. In such instances, a landowner is not entitled to notice or a hearing prior to the creation of a district that includes its property (see, Chesebro v Los Angeles County Dist., 306 US 459, 463-464; Valley Farms Co. v Westchester, 261 US 155, 164, affg 231 NY 558, affg sub nom. Valley Farms Co. v City of Yonkers, 193 App Div 433; Hancock v City of Muskogee, 250 US 454, 457; Wagner v Baltimore, 239 US 207, 219; New York Cent. & Hudson Riv. R. R. Co. v City of Rochester, 129 App Div 805, 807, supra). The Legislature is deemed "to have made proper inquiry, and to have finally and conclusively determined the fact of benefits to the land included in the district, and the citizen has no constitutional right to any other or further hearing upon that question.” (Fallbrook Irrigation Dist. v Bradley, 164 US 112, 174-175; Chesebro v Los Angeles County Dist., supra, at 464-465.) "A legislative act of this nature can be successfully called in question only when it is so devoid of any reasonable basis as to be essentially arbitrary and an abuse of power.” (Embree v Kansas City Rd. Dist., 240 US 242, 250-251; Spencer v Merchant, 100 NY 585, 587-588, affd 125 US 345.)

By contrast, where the Legislature does not itself fix the boundaries of the local improvement district but instead authorizes that power to be exercised by a subordinate body, something more in the nature of a judicial-type inquiry is indicated; the owners of land affected by the improvement must at some stage of the proceeding be accorded notice and an opportunity to be heard as to the property benefited by the improvement (Matter of Floyd-Jones v Town Bd., 249 NY 398, 405 [citing Stuart v Palmer, 74 NY 183; Browning v Hooper, 269 US 396, 405]; Londoner v City & County of Denver, 210 US 373, 378).

The distinction is brought into bold relief by the history of Stuart v Palmer, the case relied on by the Appellate Division. That case involved a challenge to the Laws of 1869 (ch 217, §4), whereby the Legislature empowered a Commission of three persons to regulate, grade and prepare an avenue for travel, and for that purpose to take such land as was requisite, "estimate the value thereof, [and] assess the amount of the award upon the lands benefited by the opening of the avenue, in proportion to benefits.” (74 NY, at 185.) The statute did not require notice to the owners of the assessed property. The Commissioners assessed all the lands which in their judgment would be benefited by the improvement, including plaintiff’s. Plaintiff thereupon challenged the assessment on due process grounds and this court agreed, declaring the statute unconstitutional because it did not provide plaintiff with notice or an opportunity to be heard in regard to the assessment (74 NY, at 188-190).

Shortly after the decision, however, the Legislature passed a statute directing that a sum equal to so much of the first assessment as had not been paid, with interest, and a proportionate part of the expenses of that assessment, be assessed upon and apportioned among the lots upon which the former assessment had not been paid. This statute, too, was challenged on due process grounds, in Spencer v Merchant (100 NY 585, affd 125 US 345). But in Spencer we upheld the statute, reasoning:

"The act of 1881 determines absolutely and conclusively the amount of tax to be raised, and the property to be assessed and upon which it is to be apportioned. Each of these things was within the power of the legislature whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason. The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but is not bound to do so, and may settle both questions for itself; and when it does so its action is necessarily conclusive and beyond review.
* * *
"The precise wrong of which complaint is made appears to be that the land-owners now assessed never had an opportunity to be heard as to the original apportionment, and find themselves now practically bound by it as between their lots and those of the owners who paid. But that objection becomes a criticism upon the action of the legislature and the process by which it determined the amount to be raised and the property to be assessed. Unless by special permission that is a hearing never granted in the process of taxation. The legislature determines expenditures and amounts to be raised for their payment, the whole discussion and all questions of prudence and propriety and justice being confined to its jurisdiction.” (100 NY, at 587-589 [citations omitted].)

Thus, petitioners’ reliance on Stuart v Palmer (74 NY 183, supra) is misplaced. Stuart involved not a legislative act establishing district boundaries — as here — but an authorization to a subordinate body of Commissioners who both staked out the improvement area and determined the assessments to be imposed. Insofar as the Legislature in the present case itself established the district boundaries, "there was an authorized exercise of the legislative power of the State, which, according to repeated decisions of this court, was not wanting in due process of law because of the mere fact that there was no previous notice to the property owners or opportunity to be heard.” (Hancock v City of Muskogee, 250 US 454, 457, supra; see also, Valley Farms Co. v City of Yonkers, 231 NY 558, supra; Spencer v Merchant, 100 NY 585, supra.)

Petitioners nonetheless urge that, whatever may be true of legislative acts generally, this statute is unconstitutional because of the Town Board action that preceded it.

Petitioners do not question that the prescribed procedures were followed by the Town in lodging its request. The request was made by the Town’s chief executive officer, concurred in by a majority of the total membership of the local legislative body, and it relates to property, affairs or government of the Town which did not in terms and effect apply alike to other towns (Municipal Home Rule Law § 40). But Municipal Home Rule Law § 40 further requires that every request of a local government for enactment of a special law "declare that a necessity exists for the passage of such bill by the legislature and shall recite the facts establishing such necessity.” Petitioners claim that the facts presented by the Town Board to the Legislature to establish the requisite necessity were "illicitly conjured up,” and the request was therefore ultra vires and void.

Petitioners’ contention that there was no genuine basis for the Town Board’s request is expressly foreclosed by statute. Municipal Home Rule Law § 40 provides that "[t]he validity of an act passed by the legislature in accordance with * * * a [special home rule] request shall not be subject to review by the courts on the ground that the necessity alleged in the request did not exist or was not properly established by the facts recited.” Similarly, Legislative Law § 56 provides that the enactment of a special law pursuant to NY Constitution, article IX, § 2 (b) (2) "shall be conclusive as to the facts that (1) a necessity as set forth in the request existed at the time of enactment and (2) that sufficient facts were set forth in such request to establish such necessity.” Given these provisions, which are unchallenged, we must accept that the Legislature by its own act of adopting chapter 755 "has certified that all requisite steps necessary for the passage of the law * * * were properly carried out.” (Matter of Ferdon v Rogers, 43 Misc 2d 676, 679, affd 23 AD2d 851.)

Finally, petitioners challenge the fairness of the assessment rate, claiming it is disproportionate to any benefit they may receive. That issue, however, was not considered by the Appellate Division, and it is not properly before us for review. Accordingly, the order of the Appellate Division should be reversed, with costs, chapter 755 of the Laws of 1983 should be declared constitutional, and the matter should be remitted to the Appellate Division for consideration of issues not previously reached.

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

Order reversed, with costs, chapter 755 of the Laws of 1983 declared constitutional, and matter remitted to the Appellate Division, Second Department, for consideration of issues not reached on the appeal to that court.


source: Caselaw Access Project

author: Mollen, J.

license: Public Domain

text:
    Kenford Company, Inc., Respondent, v County of Erie et al., Appellants.
    Argued January 11, 1989;
    decided February 21, 1989

      POINTS OF COUNSEL

      John H. Stenger, Joseph M. Finnerty and Mitchell J. Bañas, Jr., for appellants.
    I. The 1985 decision and order of the court below erred in failing to dismiss Kenford’s claim for lost profits from land appreciation. (Globe Ref. Co. v Landa Cotton Oil Co., 190 US 540; Czarnikow-Rionda Co. v Federal Sugar Ref. Co., 255 NY 33; Lowes Glove Co. v Acme Fast Frgt., 54 Misc 2d 429; Chapman v Fargo, 223 NY 32; Kerr S. S. Co. v Radio Corp., 245 NY 284; Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205; Witherbee v Meyer, 155 NY 446; Cramer v Grand Rapids Show Case Co., 223 NY 63; Perma Research & Dev. Co. v Singer, 402 F Supp 881, 542 F2d 111, 429 US 987; Veeder v State of New York, 2 Misc 2d 696.) II. The courts below erred in denying judgment to defendants on the issue of liability because the agreement is void and unenforceable. (New York, New Haven & Hartford R. R. Co. v Village of New Rochelle, 29 Misc 195; Brick Presbyt. Church v Mayor of City of N. Y., 5 Cow 538; Whitney v Mayor of N. Y., 6 Abb NC 329; People ex rel. New York Elec. Lines Co. v Squire, 107 NY 593, 145 US 175; Matter of Village of Canastota [Queensboro Farm Prods.] 44 AD2d 276, 36 NY2d 793; Seif v City of Long Beach, 286 NY 382; Dickinson v City of Poughkeepsie, 75 NY 65; City of Troy Unit of Rensselaer County Ch. of CSEA v City of Troy, 36 AD2d 145, 30 NY2d 549; Riggs v Palmer, 115 NY 506; Parsa v State of New York, 64 NY2d 143.) III. The court below erred in affirming Special Term’s order granting summary judgment of liability to Kenford. (Andre v Pomeroy, 35 NY2d 361; Bradt v John Hancock Mut. Life Ins. Co., 98 AD2d 886; Manufacturers & Traders Trust Co. v Cottrell, 71 AD2d 538; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065;
      Zuckerman v City of New York, 49 NY2d 557; Neuman v Greenstein, 99 AD2d 1018; Guzzardi v Perry’s Boats, 92 AD2d 250; Vasquez v O’Brien, 85 AD2d 791; Alvarez v Prospect Hosp., 68 NY2d 320; Oían v Farrell Lines, 64 NY2d 1092.) IV. The 1988 decision and order of the court below erred in affirming the lost profits damages awarded to Kenford on retrial. (Matter of City of New York [Clearview Expressway], 9 NY2d 439; Matter of City of New York [Shorefront High School — Rudnick], 25 NY2d 146; Crammond v State of New York, 33 AD2d 861; Matter of City of New York [Dexter Motors —Wilson], 21 AD2d 652, 16 NY2d 814; Triple Cities Shopping Center v State of New York, 26 AD2d 744, 22 NY2d 683; Matter of City of Rochester [Smith St. Bridge Widening], 234 App Div 583; Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535; Matter of Rochester Urban Renewal Agency v Lee, 83 AD2d 770; Raichle v State of New York, 57 AD2d 1071; Lorig v State of New York, 58 AD2d 734, 42 NY2d 1101.)

      Victor T. Fuzak and Allen H. Beroza for respondent.
    I. The 1985 decision and order of the court below holding that Kenford is entitled to lost land value damages was correct. (Barnes v Brown, 130 NY 372; Manniello v Dea, 92 AD2d 426; Adams v Lindblad Travel, 730 F2d 89; C. & C. Blaschka, Inc. v Frazer, 32 AD2d 774; 437 Fifth Co. v Barton Realty Corp., 23 AD2d 168; Czarnikow-Rionda Co. v Federal Sugar Ref. Co., 255 NY 33; American Std. v Schectman, 80 AD2d 318; Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205; Lexington Prods. v B. D. Communications, 677 F2d 251; Gurney Indus. v St. Paul Fire & Mar. Ins. Co., 467 F2d 588.) II. By wholly unrebutted and indeed unquestioned proof on both trials, Kenford established that the lost land appreciation was the natural and probable consequence of the breach and was both reasonably and actually foreseen and contemplated. III. The 1988 order of the court below was correct: Kenford’s retrial testimony is precisely in accordance with Appellate Division guidelines and accepted appraisal methodology. (Matter of General Elec. Co. v Town of Salina, 69 NY2d 730; Matter of Adirondack Mountain Reserve v Board of Assessors, 64 NY2d 727; Matter of Seagram & Sons v Tax Commn., 14 NY2d 314; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 79 AD2d 371; Matter of Broadway-Saranac Lake Corp. v Board of Assessors, 43 AD2d 649; Sparkill Realty Corp. v State of New York, 254 App Div 78, 279 NY 656; Grant Co. v Srogi, 52 NY2d 496;
      Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1; Heiman v Bishop, 272 NY 83; Village of Lawrence v Greenwood, 300 NY 231.) IV. The retrial court’s evidentiary rulings were proper. (People v Davis, 43 NY2d 17; Radosh v Shipstad, 20 NY2d 504; Fassett v Fassett, 101 AD2d 604.) V. The amount of the verdict was correctly calculated, and the trial court correctly exercised its discretion in fixing the date for commencement of interest on Kenford’s damages. (Arvantides v Arvantides, 106 AD2d 853; Knob Bros. v Town of Lewiston, 58 AD2d 1016; Perrin Constr. Co. v Johnson, 42 AD2d 834; Smirlock Realty Corp. v Title Guar. Co., 63 NY2d 955; Murphy v Erie County, 60 Misc 2d 954.) VI. The resolution contract has correctly been held to be valid and enforceable in accordance with its terms. (Schwartz v Public Adm’r, 24 NY2d 65; Last Chance Min. Co. v Tyler Min. Co., 157 US 683; Lowe v City of New York, 240 App Div 484, 265 NY 583; Matter of Wa-Wa-Yanda v Dickerson, 18 AD2d 251; Ward v City of New Rochelle, 20 Misc 2d 122, 9 AD2d 911, 7 NY2d 1026, 8 NY2d 895; Bergan Beach Land Corp. v City of New York, 108 Misc 70, 192 App Div 884.) VII. Summary judgment dismissing the pleaded defenses as being insubstantial and frivolous was properly granted. (Steingart Assocs. v Sandler, 28 AD2d 801; Zuckerman v City of New York, 49 NY2d 557; Shapiro v Health Ins. Plan, 7 NY2d 56; De Fren v Russell, 71 AD2d 416; Koch v Haven-Busch Co., 41 AD2d 774; Indig v Finkelstein, 23 NY2d 728; Gibbons v Hantman, 58 AD2d 108; Prudential Westchester Corp. v Tomasino, 5 AD2d 489, 6 NY2d 824; Wilson Sullivan Co. v International Paper Makers Realty Corp., 307 NY 20.)
   OPINION OF THE COURT

Mollen, J.

This appeal arises out of breach of contract litigation spanning 18 years and involving the proposed construction and operation of a domed stadium facility in the County of Erie. The issue is whether the plaintiff Kenford Company, Inc. (Kenford) is entitled to recover damages against the defendant County of Erie (County) for the loss of anticipated appreciation in the value of the land which Kenford owned in the periphery of the proposed stadium site. Under the circumstances of this case, we conclude that Kenford is not entitled to recovery on this claim since there is no evidence to support a determination that the parties contemplated, prior to or at the time of the contract, assumption by the County of liability for these damages.

By way of background, the County of Erie adopted enabling legislation in May 1968 authorizing it to finance and construct a domed sports stadium in the vicinity of the City of Buffalo. The County, simultaneously, adopted a resolution authorizing a $50 million bond resolution for the purpose of financing the construction of the proposed stadium. In December 1968, Kenford, through its president and sole shareholder, Edward H. Cottrell, submitted an offer to the County with regard to the stadium project. By its terms, Kenford, which had acquired options on various parcels of land located in the Town of Lancaster in Erie County, proposed to sell a portion of that land to the County as a site for the stadium facility. Although the County initially expressed interest in Kenford’s proposal, it eventually declined the offer. Kenford, however, pursued the matter and thereafter engaged the services of Judge Roy Hofheinz, who had been instrumental in the development of the Houston Astrodome. Kenford then approached the County with a new offer. By its terms, Kenford was to donate to the County the land upon which the stadium was to be built, in exchange for which the County was to permit Hofheinz and Cottrell, who had formed the management company of Dome Stadium, Inc. (DSI), to lease or manage the proposed stadium facility.

In June 1969, the County adopted a resolution accepting Kenford’s new offer, after which the parties engaged in contract negotiations. During this period of time, Cottrell, as agent for Kenford, exercised his options on several parcels of land located in the Town of Lancaster. On August 8, 1969, the County, Kenford and DSI executed a contract which provided, in pertinent part, that Kenford would donate 178 acres of land located in the Town of Lancaster to the County for use in construction of the stadium and necessary access roadways. In consideration therefor, the County agreed to commence construction of the stadium within 12 months. The County also agreed to negotiate a 40-year lease with DSI for the operation of the facility which was to provide, inter alia, that the County would receive, as its consideration, lease revenues of not less than $63.75 million over the 40-year term to be comprised of (1) all tax revenues received by the County generated by the operation of the stadium site area; (2) rental payments from DSI; and (3) increased real property taxes resulting from increased assessments and other tax revenues received from or generated by "the peripheral lands and development thereof’. The term "peripheral lands” was defined as "those lands presently owned, contracted for or hereinafter acquired by Edward H. Cottrell or Kenford, and located within the area of the Town of Lancaster”. If a mutually satisfactory lease could not be agreed upon within three months of the contract signing, the County and DSI were to execute a 20-year management agreement which was annexed to the contract.

Following execution of the contract, the County solicited construction bids for the proposed stadium. The bids received by the County indicated that the proposed project would cost approximately $72 million which was $22 million in excess of the County’s prior bond resolution. Although efforts were made to seek an increase in the appropriation for the stadium, those efforts were unsuccessful and, in January 1971, the County adopted a resolution terminating the contract with Kenford and DSI. Kenford’s subsequent attempts to procure alternate financing for the proposed stadium facility proved futile.

In June 1971, Kenford and DSI instituted the instant breach of contract action and sought specific performance thereof, or, in the alternative, damages in the amount of $90 million. Following the award of summary judgment in favor of the plaintiffs on the issue of liability (see, Kenford Co. v County of Erie, 88 AD2d 758, lv dismissed 58 NY2d 689), the matter was set down for a trial on the issue of damages. The damage trial lasted approximately nine months and resulted in a jury award to Kenford in the sum of $18 million for its lost appreciation in the value on its property located on the periphery of the proposed stadium site and an award of over $6 million in out-of-pocket expenses. DSI was awarded $25.6 million in lost profits under the parties’ 20-year management contract.

On appeal, the Appellate Division, while affirming the major portion of the $6 million jury award for Kenford’s mitigation and reliance damages, reversed the award to DSI for loss of profits as well as a portion of the award to Kenford for out-of-pocket expenses and directed a new trial on the damage award for loss of anticipated appreciation in the value of Kenford’s peripheral lands (108 AD2d 132). On this latter point, the majority of the Appellate Division determined that Kenford’s loss of land appreciation was both a foreseeable and certain damage for which it was entitled to recover. The majority, however, found that the award was based upon improper appraisal evidence provided by the Kenford’s expert who assumed that the property in question would be improved with, among other things, a theme park, office buildings and a golf course. The court ruled that the proper measure of damage was the value of the land as raw acreage following the construction of the proposed stadium less the value of the land when purchased (108 AD2d 132, 139, supra). Two Justices dissented on the issue of Kenford’s right to recover damages for anticipated land appreciation and took the position that these damages were not foreseeable and, in any event, were inherently speculative and, therefore, not recoverable.

DSI subsequently sought review of the Appellate Division’s dismissed of its breach of contract claim against the County. This court, addressing itself solely to the denial of DSI’s right to recover its loss of profits under the 20-year management contract, affirmed that portion of the Appellate Division’s decision. Therein, we determined that those damages were not recoverable on the twofold basis that the County’s liability for DSI’s loss of profits was not in the contemplation of the parties at the time of the execution of the contract and, secondly, the damages were too speculative and, thus, did not satisfy the legal requirements of proof with reasonable certainty (67 NY2d 257).

Thereafter, in accordance with the prior Appellate Division decision, the retrial on the issue of damages for Kenford’s loss of anticipated land appreciation ensued and the jury awarded Kenford the sum of $6.5 million. The Appellate Division affirmed the jury award, although two Justices concurred with the result solely on the basis that that court’s prior decision regarding the recoverability of these damages constituted law of the case (138 AD2d 946). The County has appealed the Appellate Division’s affirmance of the jury award in favor of Kenford. The appeal from the Appellate Division’s 1988 order brings up for review so much of that court’s prior nonfinal 1985 order as determined that Kenford was entitled to recover damages for lost anticipated appreciation in the value of its peripheral lands, since the 1985 order necessarily affected the consequent final determination (see, Cohen and Karger, Powers of the New York Court of Appeals § 79, at 345 [rev ed]).

It is well established that in actions for breach of contract, the nonbreaching party may recover general damages which are the natural and probable consequence of the breach. "[I]n order to impose on the defaulting party a further liability than for damages [which] naturally and directly [flow from the breach], i.e., in the ordinary course of things, arising from a breach of contract, such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting” (Chapman v Fargo, 223 NY 32, 36; see also, Czarnikow-Rionda Co. v Federal Sugar Ref. Co., 255 NY 33; Kerr S. S. Co. v Radio Corp., 245 NY 284; Booth v Spuyten Duyvil Rolling Mill Co., 60 NY 487; Baldwin v United States Tel. Co., 45 NY 744; Leonard v New York, Albany & Buffalo Elec. Magnetic Tel. Co., 41 NY 544; Hadley v Baxendale, 9 Exch 341, 156 Eng Rep 145; McCormick, Damages § 138, at 562). In determining the reasonable contemplation of the parties, the nature, purpose and particular circumstances of the contract known by the parties should be considered (see, Mortimer v Otto, 206 NY 89, 91; 36 NY Jur 2d, Damages, § 40), as well as "what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to suppose that it assumed, when the contract was made” (Globe Ref. Co. v Landa Cotton Oil Co., 190 US 540, 544 [Holmes, J.]; see also, Kenford Co. v County of Erie, 67 NY2d 257, 262, supra).

In the case before us, it is beyond dispute that at the time the contract was executed, all parties thereto harbored an expectation and anticipation that the proposed domed stadium facility would bring about an economic boom in the County and would result in increased land values and increased property taxes. This expectation is evidenced by the terms of the provision of the parties’ contract requiring the County and DSI to undertake negotiations of a lease which would provide for specified revenues to be derived from, inter alia, the increased taxes on the peripheral lands. We cannot conclude, however, that this hope or expectation of increased property values and taxes necessarily or logically leads to the conclusion that the parties contemplated that the County would assume liability for Kenford’s loss of anticipated appreciation in the value of its peripheral lands if the stadium were not built. On this point, our decision in the prior appeal regarding DSI’s right to recover damages for lost profits under the 20-year management contract is particularly instructive: "Initially, the proof does not satisfy the requirement that liability for loss of profits over a 20-year period was in the contemplation of the parties at the time of the execution of the basic contract or at the time of its breach (see, Chapman v Fargo, 223 NY 32; 36 NY Jur 2d, Damages, §§39, 40, at 66-70). Indeed, the provisions in the contract providing remedy for a default do not suggest or provide for such a heavy responsibility on the part of the County. In the absence of any provision for such an eventuality, the commonsense rule to apply is to consider what the parties would have concluded had they considered the subject. The evidence here fails to demonstrate that liability for loss of profits over the length of the contract would have been in the contemplation of the parties at the relevant time” (67 NY2d 257, 262, supra [emphasis added]).

Similarly, there is no provision in the contract between Kenford and the County, nor is there any evidence in the record to demonstrate that the parties, at any relevant time, reasonably contemplated or would have contemplated that the County was undertaking a contractual responsibility for the lack of appreciation in the value of Kenford’s peripheral lands in the event the stadium was not built. This conclusion is buttressed by the fact that Kenford was under no contractual obligation to the County to acquire or maintain ownership of any land surrounding the 178 acres it was required to donate to the County. Although the County was aware that Kenford had acquired and intended to further acquire peripheral lands, this knowledge, in. and of itself, is insufficient, as a matter of law, to impose liability on the County for the loss of anticipated appreciation in the value of those lands since the County never contemplated at the time of the contract’s execution that it assumed legal responsibility for these damages upon a breach of the contract. As this court noted in Booth v Spuyten Duyvil Rolling Mill Co. (60 NY 487, 494, supra) "bare notice of special consequences which might result from a breach of contract, unless under such circumstances as to imply that it formed the basis of the agreement, would not be sufficient [to impose liability for special damages]” (see also, Czarnikow-Rionda Co. v Federal Sugar Ref. Co., 255 NY 33, supra [the defendant supplier of sugar was not made aware at the time of the contract that the plaintiff purchaser could not acquire sugar on the open market and, therefore, was not liable for the plaintiff’s special damages arising out of the breach of contract]; Baldwin v United States Tel. Co., 45 NY 744, supra [the defendant telegraph company was not liable for special damages caused by delay in delivery of message since it was without notice or information indicating that extraordinary care or speed of delivery was necessary]; Hadley v Baxendale, 9 Exch 341, 156 Eng Rep 145, supra [the common carrier was not liable for the loss of profits at the plaintiffs’ flour mill since the carrier, who knew that the mill was closed, was not aware that the mill’s continued operation was dependent solely on prompt delivery of the mill’s broken shaft]).

Undoubtedly, Kenford purchased the peripheral lands in question with the hope of benefiting from the expected appreciation in the value of those lands once the stadium was completed and became operational. In doing so, Kenford voluntarily and knowingly assumed the risk that, if the stadium were not built, its expectations of financial gain would be unrealized. There is no indication that either Kenford or the County reasonably contemplated at the time of the contract that this risk was assumed, either wholly or partially, by the County. To hold otherwise would lead to the irrational conclusion that the County, in addition to promising to build the domed stadium, provided a guarantee that if for any reason the stadium were not built, Kenford would still receive all the hoped for financial benefits from the peripheral lands it anticipated to receive upon the completion of the stadium. According to Kenford’s version of the facts, Kenford was to realize all of its anticipated gains with or without the stadium. Clearly, such a result is illogical and without any basis whatsoever in the record.

Thus, the constant refrain which flows throughout the legion of breach of contract cases dating back to the leading case of Hadley v Baxendale (9 Exch 341, 156 Eng Rep 145, supra) provides that damages which may be recovered by a party for breach of contract are restricted to those damages which were reasonably foreseen or contemplated by the parties during their negotiations or at the time the contract was executed. The evident purpose of this well-accepted principle of contract law is to limit the liability for unassumed risks of one entering into a contract and, thus, diminish the risk of business enterprise (see, McCormick, Damages § 138, at 566-567, supra). In the case before us, although Kenford obviously anticipated and expected that it would reap financial benefits from an anticipated dramatic increase in the value of its peripheral lands upon the completion of the proposed domed stadium facility, these expectations did not ripen or translate into cognizable breach of contract damages since there is no indication whatsoever that the County reasonably contemplated at any relevant time that it was to assume liability for Kenford’s unfulfilled land appreciation expectations in the event that the stadium was not built. Thus, under the principles set forth in Hadley v Baxendale (supra) and its progeny of cases in this State (see, e.g., Kenford Co. v County of Erie, 67 NY2d 257, supra; Czarnikow-Rionda Co. v Federal Sugar Ref. Co., 255 NY 33, supra; Kerr S. S. Co. v Radio Corp., 245 NY 284, supra; Chapman v Fargo, 223 NY 32, supra), Kenford is not entitled to recovery, as a matter of law, for its lost appreciation in the value of its peripheral lands caused by the County’s breach of the parties’ contract.

Accordingly, the March 4, 1988 order of the Appellate Division insofar as appealed from and the April 12, 1985 order of the same court insofar as brought up for review should be reversed, with costs, and the award for loss of anticipated profits from appreciation in the value of peripheral lands stricken.

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

March 4, 1988 order of the Appellate Division insofar as appealed from and April 12, 1985 order of the same court insofar as brought up for review, reversed, etc.

       Designated pursuant to NY Constitution, article VI, § 2.

      . Despite extensive negotiations, the County and DSI never agreed upon a satisfactory 40-year lease agreement.

      . The plaintiffs were later granted permission to increase the ad damnum clause to $495 million (see, Kenford Co. v County of Erie, 93 AD2d 998).

      . Other orders sought to be reviewed are not reviewable on this CPLR 5601 (d) appeal (see, Gilroy v American Broadcasting Co., 46 NY2d 580).


author: Alexander, J.

text:
    In the Matter of Jay Block, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents. In the Matter of Norman M. Ackerman, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, Respondent.
    Argued February 14, 1989;
    decided March 30, 1989

      POINTS OF COUNSEL

      Carmen J. Valvo for appellant in the first above-entitled proceeding.
    I. Petitioner was deprived of adequate notice guaranteed under the Federal and State Constitutions as applied to State administrative hearings. (Sharkey v Thurston, 268 NY 123; Matter of Atlantic Ins. Co., 133 Misc 464; Matter of Bender v Board of Regents, 262 App Div 627; Matter of Benjamin v State Liq. Auth., 13 NY2d 227; Matter of Kern v LaGuardia, 264 App Div 627, 289 NY 776; Matter of Hecht v Monaghan, 307 NY 461; Matter of Evans v Monaghan, 306 NY 312; People v Morris, 61 NY2d 290.) II. Guilt was not found by a preponderance of evidence and the findings were arbitrary and capricious and against the weight of the evidence. (Matter of Huss, 126 NY 537; Petrogradsky Mejdunarodny Kommerchesky Bank v National City Bank, 253 NY 23; Bornhurst v Massachusetts Bonding & Ins. Co., 21 NY2d 581; Scanlon v Flynn, 465 F Supp 32; Matter of McWilliams v Haveliwala, 61 AD2d 1032.) III. Section 301 (2) (d) of the State Administrative Procedure Act is unconstitutional insofar as it arbitrarily denies judicial review with respect to the sufficiency of the notice given of an adjudicatory proceeding. (Matter of Schutt v Macduff, 205 Misc 43; Mass v Blum, 112 Misc 2d 898.) IV. The State Education Department had no jurisdiction over the third specification of professional misconduct.

      Robert Abrams, Attorney-General (John J. O’Grady and O. Peter Sherwood of counsel), for respondents in the first above-entitled proceeding.
    I. The court below correctly held that the notice provided to petitioner was sufficient to enable him to prepare and present a defense. (Labor Bd. v Mackay Co., 304 US 333; Matter of Cassiliano v Steisel, 64 NY2d 674; Matter of Fitzgerald v Libous, 44 NY2d 660; Matter of Kiejfer v New York State Thruway Auth., 135 AD2d 1017; Matter of Bahouth v Sardino, 125 AD2d 990; Central Ark. Auction Sale v Bergland, 570 F2d 724, cert denied sub nom. Central Ark. Auction Sale v Department of Agrie., 436 US 957; Celia v United States, 208 F2d 783, 347 US 1016; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of O’Keefe v Murphy, 38 NY2d 563; Matter of Gattner v Whalen, 71 AD2d 712, 48 NY2d 608.) II. There is substantial evidence in this record to support the finding that petitioner was guilty of professional misconduct. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Pfeffer v Parkside Caterers, 42 NY2d 59; Matter of Berenhaus

      v Ward, 70 NY2d 436; Matter of Purdy v Kreisberg, 47 NY2d 354; Matter of Hotel Assn. v Weaver, 3 NY2d 206; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Ciccone v Waterfront Commn., 52 NY2d 913; Matter of Ragazzino [Ross], 52 NY2d 858; Matter of Cerminaro v Board of Regents, 120 AD2d 262; Matter of Melone v State of New York Educ. Dept., 115 AD2d 854.) III. Respondents’ revocation of petitioner’s license was clearly warranted and was not an abuse of discretion. (Kostika v Cuomo, 41 NY2d 673; Matter of Butterly & Green v Lomenzo, 36 NY2d 250; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Purdy v Kreisberg, 47 NY2d 354; Matter of Rudner v Board of Regents, 105 AD2d 555; Matter of Nisnewitz v Board of Regents, 95 AD2d 950; Matter of Domino v Board of Regents, 124 AD2d 271; Matter of Cerminaro v Board of Regents, 120 AD2d 262; Matter of Melone v State of New York Educ. Dept., 115 AD2d 854.)

      Anthony Z. Scher for appellant in the second above-entitled proceeding.
    I. The notice requirements of due process are not satisfied by vague charges and testimony that improprieties were committed sometime over a seven-year span. (Matter of Hecht v Monaghan, 307 NY 461; People v Morris, 61 NY2d 290; Matter of Melone v State of New York Educ. Dept., 115 AD2d 854.) II. In a misconduct proceeding, a physician has the right to full cross-examination and this right includes the right to inquire into prior statements made by complaining witnesses. (People v Rosario, 9 NY2d 286; Garabedian v New York State Liq. Auth., 33 AD2d 980; Matter of Doe v Axelrod, 123 AD2d 21, 71 NY2d 484; People v Le Grand, 67 AD2d 446.) III. Appellant was not involved with the complainants as their physician. Accordingly, even if their allegations were true, no misconduct occurred. (Schorr v Bernarr Macfadden Found., 5 AD2d 151.)

      Robert Abrams, Attorney-General (Darren O’Connor, O. Peter Sherwood and Lawrence S. Kahn of counsel), for respondent in the second above-entitled proceeding.
    I. The designation of specific time periods during which the repeated acts of misconduct occurred was not challenged at the hearing and, in any event, provided petitioner with sufficient notice of charges. (Matter of Klapak v Blum, 65 NY2d 670; Matter of Gonzalez v State Liq. Auth., 30 NY2d 108; Matter of Leogrande v State Liq. Auth., 19 NY2d 418; Matter of Murray v Murphy, 24 NY2d 150; Labor Bd. v Mackay Co., 304 US 333; Citizens State Bank v Federal Deposit Ins. Corp., 751 F2d 209; Aloha Air

      lines v Civil Aeronautics Bd., 598 F2d 250; Matter of Fitzgerald v Libous, 44 NY2d 660; Matter of Benjamin v State Liq. Auth., 13 NY2d 227.) II. Petitioner was provided with all documentation of the patients’ prior statements and had a full opportunity to cross-examine the witnesses against him. (Matter of Damino v Board of Regents, 124 AD2d 271; Matter of Doe v Axelrod, 123 AD2d 21, 71 NY2d 484; Matter of Grattan v People, 65 NY2d 243; Matter of Fenimore Circle Corp. v State Liq. Auth., 27 NY2d 716; People v Poole, 48 NY2d 144; People v Malinsky, 15 NY2d 86; People v Rosario, 9 NY2d 286, 368 US 866.) III. Substantial evidence supports the findings that a physician-patient relationship existed between petitioner and patients A, B and D. (Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Shephard v Ambach, 68 AD2d 984.)
   OPINION OF THE COURT

Alexander, J.

The primary issue presented by these appeals is whether the charges of misconduct underlying these administrative disciplinary proceedings against petitioners satisfied the notice requirement of due process, notwithstanding that the specific dates of misconduct were not alleged. We conclude that in the circumstances of these administrative proceedings, the requirements of due process were satisfied because sufficient notice of the charges was given to each petitioner to enable each to adequately prepare and present a defense. Accordingly, we affirm the judgments of the Appellate Division in both cases.

I

Matter of Block v Ambach

A 16-year-old female who had attempted suicide was admitted to Marcy Psychiatric Center (MPC) in 1981 and remained a patient at the facility until her discharge in June 1982. During that time, petitioner Block was employed at MPC as a licensed practical nurse and a registered professional nurse. In October 1984, based on complaints made by the former patient, petitioner was charged by the Office of Professional Discipline of the Education Department with professional misconduct in violation of Education Law § 6509 (9) and 8 NYCRR 29.1 (b) (5) for having had a sexual relationship with the complainant while she was hospitalized and after her discharge. Specifically, petitioner was charged with engaging in sexual intercourse with complainant on five or more occasions during a four-month period while she was an inpatient at the facility and engaging in sexual intercourse with her during a five-month period after she had been discharged. The charges also alleged that petitioner committed professional misconduct by verbally harassing complainant to induce her to cooperate by threatening, in November 1981, to "fix it” so that she would never leave the facility (Education Law §6509 [9]; 8 NYCRR 29.2 [2]). Finally, petitioner was charged with gross negligence in failing to provide the requisite nursing care to complainant (Education Law § 6509 [9]; 8 NYCRR 29.1 [b] [1]).

Petitioner’s contention, inter alia, that these charges were insufficiently specific because of the excessively vague time periods alleged was rejected by the Hearing Panel of the Department of Education and he was found guilty of each of the charges. Respondent Commissioner of Education adopted these findings and revoked petitioner’s licenses to practice nursing.

Petitioner instituted this article 78 proceeding in the Appellate Division (see, Education Law § 6510 [5]), seeking annulment of respondent’s determination and a determination that State Administrative Procedure Act § 301 (2) (d) is unconstitutional because it deprives the courts of jurisdiction to determine whether administrative charges satisfy due process. The Appellate Division confirmed respondent’s determination and dismissed the petition (140 AD2d 814).

Matter of Ackerman v Ambach

Petitioner Ackerman was licensed to practice medicine in New York in 1948. In the late 1950’s, he cofounded the Association for Counseling and Therapy (ACT) and served as its psychiatrist and director. Between 1969 and 1975, under the pretense of providing psychiatric treatment at ACT, petitioner allegedly engaged in numerous sexual acts with patients and encouraged lewd and lascivious conduct during both individual and group therapy sessions. As a result of complaints filed by several of the individuals who had been involved in these activities, the State Board for Professional Medical Conduct charged petitioner with professional misconduct and instituted disciplinary proceedings. He was charged with the fraudulent practice of medicine (Education Law § 6509 [2]) in inducing two of his patients (A and B) to engage in sexual intercourse with him, to engage in lewd conduct and to use inappropriate drugs during time periods covering 26 months, 78 months, 46 months and 53 months. Petitioner was also charged with gross negligence or incompetence in his practice of the profession (Education Law § 6509 [2]), in that at various times during a 78-month time period he displayed guns to A, verbally harassed and abused her and induced her to participate in group sexual activity and to use illicit drugs. The charges further alleged gross negligence in that petitioner engaged in essentially the same conduct with B over a 39-month time period. Additionally, petitioner was charged with practicing negligently on more than one occasion (Education Law § 6509 [2]) as well as with moral unfitness to practice (Education Law §6509 [9]), the latter based on his patent moral unfitness and his abuse of A and B.

Thirty-five witnesses, including A, B and a third complainant, D, testified before a Hearing Panel of the State Board for Professional Medical Conduct. At this hearing, which continued over a period of some six years, petitioner denied that A, B and D were his patients or that he had engaged in sexual activity with any of them. Instead, he claimed that the group sessions he led were merely gatherings of people engaged in the discussion of a variety of topics and did not involve any form of psychotherapy treatment. The Panel found, inter alia, that A and B were petitioner’s patients; that petitioner had conducted private sessions with A "on or about the year 1973”, and "on numerous occasions” instigated and participated in sexual activities involving that patient; that he had sexual relations with her on a particular day when petitioner’s wife was engaged in a radio broadcast; and that A had sexual intercourse and oral sex with petitioner "on approximately 25 occasions”. With only minor exceptions, the Panel sustained the charges against petitioner and recommended permanent revocation of his license and a $25,000 fine. After reviewing the Panel’s report, the Commissioner of Health recommended to the Board of Regents that the Panel’s findings of fact, conclusions of law and recommendation of license revocation be accepted in full.

The Regents Review Committee rejected the Panel’s determination to sustain the specification charging moral unfitness (Education Law § 6509 [9]) and modified other conclusions, not relevant here, but nevertheless recommended that petitioner’s license be revoked. Respondent accepted the Committee’s recommendations and ordered revocation of petitioner’s license.

Petitioner instituted this article 78 proceeding in the Appellate Division (see, Education Law § 6510-a [4]), seeking to annul respondent’s determination. As it had in Block, the Appellate Division confirmed respondent’s determination and dismissed the petition (142 AD2d 842).

On these appeals, both petitioners argue that the administrative determinations must be annulled as unsupported by substantial evidence and because the statement of charges in each case failed to adequately specify the dates of their alleged misconduct and therefore violated due process. They argue that the standard of specificity constitutionally required of criminal indictments should be applied in these administrative proceedings.

Block complains that he was deprived of an opportunity to present meaningful defenses of alibi and impossibility because the charges spanned a time period of some 13 months and were vague as to the number of incidents, their locations, and the precise dates of the occurrences. He argues that under the authority of our decision in People v Morris (61 NY2d 290), the charges should have been dismissed because the notice requirement of due process was not satisfied.

Ackerman similarly argues that the charges against him cannot be sustained because he was deprived of due process in that the charges spanned a period of more than six years without indicating any specific dates of the alleged misconduct, and, moreover, no witness was able to testify as to any specific dates on which any of the alleged acts took place. He contends that he was thus deprived of the ability to assert an alibi defense or to produce contrary evidence.

For the reasons that follow we reject these contentions.

II

It is axiomatic that due process precludes the deprivation of a person’s substantial rights in an administrative proceeding because of uncharged misconduct (Matter of Gelfand, 70 NY2d 211, 216; Matter of Murray v Murphy, 24 NY2d 150, 157) and it necessarily follows, therefore, that a respondent in such a proceeding is entitled to fair notice of the charges against him or her so that he or she may prepare and present an adequate defense and thereby have an opportunity to be heard (Matter of Fitzgerald v Libous, 44 NY2d 660, 661; Matter of Shapiro v Board of Regents, 16 NY2d 783, 784; Matter of Hecht v Monaghan, 307 NY 461, 470). Indeed, Education Law § 6510 (1) (c) provides that charges of professional misconduct brought by the Education Department "shall state concisely the material facts” underlying the charges. Similarly, the State Administrative Procedure Act requires that a statement of administrative charges contain "a short and plain statement of the matters asserted” (State Administrative Procedure Act § 301 [2] [d]).

It does not follow, however, that the due process requirements for the specificity of an indictment in a criminal proceeding are to be imported and fully applied in administrative proceedings. Unlike the provisions of the Education Law and the State Administrative Procedure Act, the Criminal Procedure Law requires that "[a]n indictment must contain * * * [a] statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time” (CPL 200.50 [6]). Moreover, CPL 200.30 (1) requires that "[e]ach count of an indictment * * * charge one offense only”.

While it is true, as we have said, that in order to satisfy the requirements of due process an indictment "must provide the accused with fair notice of the nature of the charges against him, and of the manner, time and place of the conduct underlying the accusations, so as to enable him to answer to the charges and to prepare an adequate defense” (People v Keindl, 68 NY2d 410, 416; People v Morris, 61 NY2d 290, 293, supra; People v Iannone, 45 NY2d 589, 594; People v Bogdanoff, 254 NY 16) and somewhat similar provisions regarding charges of professional misconduct are contained in the Education Law, the consequences of a criminal proceeding are palpably more grave and justify a requirement of greater specificity. Moreover, criminal indictments must also be sufficiently specific to allow the accused, if convicted, to assert the defense of double jeopardy in subsequent prosecutions for the same conduct (People v Keindl, 68 NY2d, at 416, supra). Because administrative proceedings entail neither the dire consequences of criminal prosecutions nor the considerations of double jeopardy, there is generally no need to import the strict requirements of the criminal law and criminal trials into administrative proceedings (Matter of CBS, Inc. v State Human Rights Appeal Bd., 54 NY2d 921, 923; Matter of Berenhaus v Ward, 70 NY2d 436, 444; Matter of Hecht v Monaghan, 307 NY 461, 470, supra). We hold, therefore, that in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him (Matter of Hecht v Monaghan, 307 NY, at 470, supra) and to allow for the preparation of an adequate defense (Matter of Fitzgerald v Libous, 44 NY2d, at 661, supra; Matter of Cassiliano v Steisel, 64 NY2d 674, 676).

In the circumstances of these administrative proceedings therefore, we reject petitioners’ contentions that the general time periods alleged in the administrative charges against them violate due process under People v Keindl (68 NY2d, at 419-420, supra) and People v Morris (61 NY2d, at 295, supra). The allegations of general time periods rejected in Keindl were deemed facially excessive as the basis of charges of sexual abuse and sodomy, crimes which, as defined in the Penal Law punish the performance of a single act, and which, in the context of a criminal prosecution, implicate consequences and constitutional considerations not present here (People v Keindl, 68 NY2d, at 420, supra; see also, Penal Law §§ 130.50, 130.65).

Morris (61 NY2d 290, supra) and Keindl (68 NY2d 410, supra), also establish that when an alleged time period is not facially unreasonable, the required degree of specificity is to be determined by reference to factors such as whether the People knew or should have known of a more precise date, the age and intelligence of the victims and witnesses, and the nature of the offense, including whether it is likely to occur at a specific time or be discovered immediately (People v Morris, 61 NY2d, at 295-296, supra; People v Keindl, 68 NY2d, at 419, supra). It is also clear from our holding in Keindl that a general allegation of an extended time period may be appropriate for an offense which "by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time” (People v Keindl, 68 NY2d, at 421, supra). Thus in Keindl we retained counts of endangering the welfare of a child (Penal Law § 260.10 [1]) based on a pattern of behavior during a two-year period (People v Keindl, 68 NY2d, at 421-422).

As was the case with respect to the charge of endangering the welfare of a child in Keindl, much of the misconduct charged in both Block and Ackerman was capable of being committed through either a single act or multiple acts and therefore may properly be characterized as continuing offenses. Petitioner Block was charged with "conduct * * * evidencing] moral unfitness to practice the [nursing] profession” (8 NYCRR 29.1 [b] [5]; Education Law § 6509 [9]) and gross negligence (8 NYCRR 29.1 [b] [1]) arising out of his sexual relationship with a patient over specified periods of four and five months. Similarly, petitioner Ackerman was charged with continuing misconduct in that he fraudulently practiced medicine, was grossly negligent or incompetent and practiced negligently on more than one occasion, all in violation of Education Law § 6509 (2).

Furthermore, the other relevant circumstances in each case indicate that the general time periods alleged afforded both petitioners reasonable notice of the charges against them and enabled them to prepare and present adequate defenses. In Block, there is no evidence in the record to support petitioner’s contention that the agency acted in bad faith in failing to specify more precise dates; the age and psychiatric illness of the patient make it unlikely that she could recall more precise dates of petitioner’s contact with her. This fact, and petitioner’s admitted subsequent relationship with this patient support the conclusion that the relatively short time periods alleged sufficiently apprised petitioner of the charges against him.

In Ackerman, although the alleged time periods are much longer than in Block, they also sufficiently apprised petitioner of the charges of continuing misconduct. Petitioner admitted conducting the group sessions during which much of the misconduct was alleged to have occurred and never sought to interpose an alibi defense for any particular incident. Instead, he denied the allegations of improper conduct and also contended that he could not be subject to discipline because the complainants were not his patients. Petitioner advanced these defenses at a comprehensive hearing which lasted over six years and entailed the testimony of 35 witnesses. In these circumstances, we cannot say that he was denied due process.

Ill

We also reject petitioner Block’s contention that the Commissioner was without authority to discipline him for his relationship with a former patient after her discharge from MFC. Under these circumstances, where the Commissioner already found that petitioner engaged in an improper sexual relationship with a 16 year old, with suicidal tendencies, while she was a patient, a reasonable inference could be drawn that petitioner’s influence extended after her discharge. Thus, this charge constituted a proper basis for the Commissioner’s determination of professional misconduct (see, Education Law § 6509 [9]; 8 NYCRR 29.1 [b] [5]) and he rationally concluded that petitioner exploited a relationship of trust and confidence petitioner developed with his patient, while she was a patient.

We further conclude that the administrative determinations in both Block and Ackerman are supported by substantial evidence. In Block, the complainant’s testimony amply supports respondent’s determination. Although petitioner Block argues to us that the complainant’s testimony against him was unreliable, her credibility was a matter for the Hearing Panel to resolve and judicial review of the agency’s determination is limited to the question of whether there is substantial evidence in the record to support that determination (Matter of Berenhaus v Ward, 70 NY2d 436, 443, supra; Matter of Pell v Board of Educ., 34 NY2d 222, 230). Similarly, in Ackerman, the testimony of A, B and D, as well as independent evidence that petitioner was paid for his professional services provide substantial evidence to support respondent’s determination that they were petitioner’s patients and that he engaged in the alleged misconduct.

Petitioners’ remaining contentions are without merit.

Accordingly, the judgment of the Appellate Division in Matter of Block v Ambach should be affirmed, with costs, and the judgment of the Appellate Division in Matter of Ackerman v Ambach should be affirmed, with costs.

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

In each case: Judgment affirmed, with costs.

      . An additional charge that petitioner also engaged in sexual intercourse with the complainant while she was an outpatient during a seven-month period in 1982 was withdrawn at the hearing.

      . For convenient reference and consistent with the way in which they are identified in the record, the three principal complainants will be referred to as A, B and D.

      . Contrary to respondent’s argument, petitioner Ackerman has adequately preserved his challenge to the sufficiency of the notice afforded in the statement of charges against him. The record indicates that petitioner challenged the specificity of the allegations both in his answer to the statement of the charges and in a motion to dismiss the charges made at the hearing.


author: Per Curiam.

text:
    In the Matter of Robert T. Rowe, a Suspended Attorney and Counselor-at-Law, Appellant.
    Decided April 6, 1989
    APPEARANCES OF COUNSEL

      William M. Brooks for appellant.

      Mark F. DeWan and Robert H. Straus for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner is an attorney-at-law admitted to the New York State Bar in 1956. He is presently under a 1978 order of the Appellate Division, Second Department, indefinitely suspending him from practice because of mental disability (see, 22 NYCRR 691.13 [a]). The suspension followed petitioner’s acquittal of criminal charges by reason of mental disease or defect. Following the verdict, the court declared petitioner incompetent and remanded him to the custody of the Commissioner of Mental Hygiene pursuant to CPL 330.20. After he had been confined two years in mental health facilities, the Supreme Court directed petitioner’s discharge on the condition that he receive out-patient psychotherapy and abide by the prescribed treatment.

In November of 1985 petitioner sought reinstatement and in support of his petition he submitted affidavits of seven individuals detailing his commendable efforts at recovery and readjustment. The Appellate Division denied petitioner’s application, without hearing or opinion. We affirmed, holding that the Appellate Division did not abuse its discretion in view of the fact that petitioner was still receiving court-ordered psychiatric care and the affidavit of his own psychiatrist was not sufficient to raise an issue of fact in support of his mental fitness to practice law (69 NY2d 757).

In February 1988 Supreme Court unconditionally discharged petitioner from mandated psychiatric care and the following May he moved again for reinstatement. Counsel to the Grievance Committee recommended denial of the application because petitioner had failed to establish prima facie that the cause for suspension, his mental disability, had been removed. On December 15, 1988, the Appellate Division denied this second application without a hearing and without written decision. We granted leave to appeal and now reverse.

The rules of the Appellate Division, Second Department, relating to suspension for medical disability provide: "Reinstatement upon termination of disability. (1) Any attorney suspended under the provisions of this section shall be entitled to apply for reinstatement at such intervals as this court may direct in the order of suspension or any modification thereof. Such application shall be granted by this court upon a showing by clear and convincing evidence that the attorney’s disability has been removed and he is fit to resume the practice of law. Upon such application, this court may take or direct such action as it deems necessary or proper for a determination as to whether the attorney’s disability has been removed, including the direction of an examination of the attorney by such qualified medical experts as this court shall designate.” (22 NYCRR 691.13 [e] [1].) The burden of proof in a proceeding seeking an order terminating suspension rests with the suspended attorney (22 NYCRR 691.13 [f]).

Petitioner’s showing includes evidence that he was unconditionally discharged from all court-ordered psychiatric care on February 16, 1988 and affidavits by three doctors, his personal psychiatrist, the executive director of the New York State Office of Mental Health and the psychiatrist retained by the District Attorney in the 1988 proceeding that discharged petitioner from court-ordered psychiatric care, all stating that petitioner no longer suffers from mental illness. The affidavit of his personal psychiatrist also states that "he is psychologically fit to resume the practice of law.”

It is settled that a State cannot exclude a first time applicant from the practice of law in a manner that contravenes due process. When the criteria for admission have been met, an application should not be rejected upon charges of unfitness without an opportunity by notice for a hearing and an answer (Willner v Committee on Character (373 US 96, 102-103). In contrast, an attorney once admitted but subsequently disbarred for professional misconduct or commission of a felony cannot claim a similar right to reinstatement. The disbarred attorney has been granted the right to practice law but has been proven unfit because of some violation of the public trust. He or she has no right to a hearing on reinstatement, therefore, and approval or denial of the application is a matter wholly within the discretion of the Appellate Division.

An attorney suspended because of mental disability does not fit within either of these categories. The suspension is not a punishment or sanction; it is a necessary precaution taken by the court to protect the public and further its confidence in and reliance upon the integrity and responsibility of the legal profession. In addition, unlike a disbarred attorney, an attorney suspended because of medical disability retains a protected property interest in his license during the period of suspension.

Inasmuch as petitioner was suspended because of his disability and his application for reinstatement presents prima facie proof, by clear and convincing evidence, that the disability has been removed, due process requires a hearing to resolve that question of fact, and to enable the court to determine on the whole record whether he is fit to practice law.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted for further proceedings in accordance with this opinion.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Titone taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.


text:
    In the Matter of 172 East 122 Street Tenants Association et al., Respondents, v Frederick A. O. Schwarz, Jr., as Corporation Counsel of the City of New York, et al., Appellants.
    Argued February 8, 1989;
    decided April 6, 1989

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Pamela Seider Dolgow and Leonard Koerner of counsel), for F. A. O. Schwarz, Jr., appellant.
    I. Petitioners lack standing to maintain the instant proceeding. Petitioners are not included in the "zone of interest” established by the statutory scheme and have not been injured by the City’s decision to release its interest in the subject properties. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406; Matter of Sheehan v Ambach, 136 AD2d 25; Garzo v Maid of Mist Steamboat Co., 303 NY 516; Matter of MFY Legal Servs. v Dudley, 67 NY2d 706; Matter of Brindisi v University Hosp., 131 AD2d 667; Matter of Guild of Admin. Officers v County of Suffolk, 126 AD2d 725.) II. The Corporation Counsel’s approval of PRF’s application as to form, timeliness and eligibility was proper in all respects. Even after dissolution, PRF was eligible to seek release of the City’s interest in the subject properties, expressly qualifying under the terms of the release statute, and as part of the winding up of its affairs permitted to dissolved corporations pursuant to sections 1005 and 1006 of the Business Corporation Law. (Solomon v City of New York, 94 AD2d 283; Filby v Brooks, 105 AD2d 826, 66 NY2d 640; Jennings v High Farms Corp., 28 AD2d 693; Sutain, Ltd. v Montgomery Ward & Co., 22 AD2d 607, 17 NY2d 776; Expomotion, Ltd. v Heidepriem-Santandrea, Inc., 101 Misc 2d 593; Bowditch v 57 Laight St. Corp., 111 Misc 2d 255; Northern Props. v Kuf Realty Corp., 30 Misc 2d 1.)

      Stuart M. Fischman, Bruce N. Roberts, Alan Lescht and Jill F. Hunter for 420-172 East Associates, and Herbert Kahn for P.R.F. Realty Corp., appellants.
    I. PRF was eligible to apply for the in rem release, even though PRF was a dissolved corporation. (Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 94 AD2d 79; Northern Props. v Kuf Realty

      Corp., 30 Misc 2d 1; Jennings v High Farms Corp., 28 AD2d 693; Bowditch v 56 Laight St. Corp., 111 Misc 2d 255; Independent Investor Protective League v Time, Inc., 50 NY2d 259.) II. The court below erred in relying upon Matter of Lewis v Schwartz (119 AD2d 116) as being dispositive of this case. III. Respondents’ article 78 proceeding should have been dismissed based upon the doctrine of laches. (Matter of Eberhart v La Pilar Realty Co., 45 AD2d 679; Stevenson v Stevenson, 32 AD2d 675; Cortelyou v Dinger, 62 Misc 2d 1007.) IV. Appellants were denied due process of law, because appellants were deprived of the opportunity to have a full evidentiary hearing. (Goldberg v Kelly, 397 US 254.) V. Respondents’ petition should have been dismissed, because respondents lacked standing to maintain the article 78 proceeding. (Matter of Dairylea Coop, v Walkley, 38 NY2d 6; Garzo v Maid of Mist Steamboat Co., 303 NY 516.)

      William J. Borner, David W. Weschler and Gloria Quinones for respondents.
    I. PRF, a corporation dissolved after years of tax delinquency, was ineligible to apply for reconveyance of the buildings and exceeded the Business Corporation Law’s limitation on "winding up.” (Matter of Lewis v Schwartz, 119 AD2d 116; Solomon v City of New York, 94 AD2d 283; Matter of Dwyer v Lindsay, 23 NY2d 562; Golden v Koch, 49 NY2d 690; Patrolmen’s Benevolent Assn. v City of New York, 41 NYld 205; Old Dutch Lands v City of New York, 55 Misc 2d 384, 32 AD2d 649, 26 NY2d 984; Neiman v City of New York, 133 AD2d 743; Matter of Valente v Culver, 124 AD2d 950, 69 NY2d 611; Lorisa Capital Corp. v Gallo, 119 AD2d 99.) II. East Associates was ineligible to make payments to the City to satisfy the requirements of PRF’s application for reconveyance. (Matter of Dwyer v Lindsay, 23 NY2d 562; City of New York v Nelson, 309 NY 94, 352 US 103; Pajak v Pajak, 56 NY2d 394; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Aaron v SEC, 446 US 680; Marcus Assocs. v Town of Huntington, 45 NY2d 501; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205.) III. All procedural requirements were satisfied in the lower court proceeding. (Matter of Dairylea Coop, v Walkley, 38 NY2d 6; Matter of Morgenthau v Cooke, 56 NY2d 24; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; National Org. for Women v State Div. of Human Rights, 34 NY2d 416; Boryszewski v Brydges, 37 NY2d 361; Matter of Bradford Cent. School Dist. v Arnbach, 56 NY2d 158; Matter of Feight v Lesser, 58 NY2d 101; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436.)
   OPINION OF THE COURT

Alexander, J.

The issue presented on this appeal is whether a corporation dissolved by proclamation of the Secretary of State (Tax Law § 203-a) may, consistent with the provisions of the Business Corporation Law that restrict the activities of dissolved corporations, apply under section 11-424 of the Administrative Code of the City of New York (former § D17-25.0) for the release of property it owned prior to dissolution but which was subsequently foreclosed in an in rem tax foreclosure action brought by the City of New York. We conclude that the remedy of release provided in the Administrative Code for parties who possessed an interest in foreclosed property at the time of its acquisition by the City is available to such a dissolved corporation so as to permit the reacquisition of property owned by it prior to dissolution.

I

172 East 122 Street (172 East) and 174 East 122 Street (174 East) are adjoining multiple dwellings that previously were owned by respondent P.R.F. Realty (PRF). It appears that PRF abandoned these buildings in October 1981. In June of the following year the New York City Finance Commissioner filed an in rem tax foreclosure action against these properties. PRF defaulted and a judgment of foreclosure in favor of the City was entered on July 31, 1985. In December of 1982, during the pendency of the in rem foreclosure proceedings but prior to entry of the judgment of foreclosure, PRF was dissolved by the Secretary of State for failure to pay corporate franchise taxes (see, Tax Law § 203-a).

Within four months following the City’s foreclosure, PRF— by then a dissolved corporation — filed an application for release of the City’s interest in the foreclosed property pursuant to section 11-424 of the Administrative Code which authorizes the City to release its interest in property acquired by in rem tax foreclosure "on the application of any party who had an interest in said property as either owner, mortgagee, lienor or encumbrancer at the time of the city’s acquisition thereof’ (Administrative Code § 11-424 [a]). Where a release application is filed within four months from the date of foreclosure, the application "shall be granted providing the corporation counsel approves the application as to form, timeliness and eligibility of the applicant and providing the applicant has paid all [required] amounts” (§ 11-424 [f] [emphasis added]).

On March 5, 1986, the Corporation Counsel conditionally approved PRF’s application pending the payment of $85,058.01 in real estate tax deficiencies and penalties by April 4, 1986. Before these conditions had been satisfied, PRF executed a quitclaim deed conveying the parcels to 420-172 East Associates (East Associates). The purchase price tendered to PRF included a check in the amount of $85,058.01 payable to the City of New York with which PRF made the required payment on April 4 to obtain release of the parcels. The Corporation Counsel then took the necessary steps to release the City’s interest in the properties and an order vacating the City’s title to the properties was formally entered in Supreme Court on April 17, 1986.

Petitioners are the tenants associations of the subject buildings. The tenants at 172 East formed an association in 1981 to maintain the building after PRF abandoned it. One of their number was appointed administrator by the Housing Court (see, RPAPL art 7-A) and was made responsible for managing the building and collecting rents. At 174 East, the current tenants took occupancy after the former tenants were forced to leave because of a lack of heat and hot water and extensive structural damage to the building. In November 1985, the "Vesting Unit” of the Department of Housing Preservation and Development assumed management of the building and provided the current tenants with leases to their apartments.

After the City foreclosed, petitioners sought to purchase their buildings under the Tenant Interim Lease Program, a program instituted by the City to assist tenants in the purchase and management of dilapidated and abandoned buildings acquired by the City through in rem tax foreclosure proceedings. While the applications were pending, however, the City approved the release of the properties to PRF and the foreclosure deed to the City was vacated. Petitioners then instituted this article 78 proceeding to vacate the release and to void the transfer of title from PRF to East Associates.

Relying on Matter of Lewis v Schwartz (119 AD2d 116), Supreme Court granted the petition to the extent of declaring the transfer between PRF and East Associates void, vacating the approval of PRF’s release application, and revesting title to the buildings in the City. Consistent with its holding in Matter of Lewis, a divided Appellate Division affirmed. The court noted that a dissolved corporation is prohibited from carrying on any business "except for the purpose of winding up its affairs” (Business Corporation Law § 1005 [a] [1]) and thus possesses only limited power "to fulfill or discharge its contracts, collect its assets, sell its assets for cash at public or private sale, discharge or pay its liabilities, and do all other acts appropriate to liquidate its business” (Business Corporation Law § 1005 [a] [2]). The court concluded that upon completion of the in rem foreclosure proceedings title vested in the City and any property interest PRF had was extinguished, leaving it with no corporate asset to "sell” or "collect”. Additionally, the court determined that the release provision in the Administrative Code does not "perpetuate or revive property interests that have already been terminated” (136 AD2d 370, 374). The majority thus reasoned that PRF was "ineligible” to apply for release of its former property and that its application should have been denied.

The dissenters concluded that Matter of Lewis was wrongly decided because it rested on an erroneous determination that property owned at the time of the City’s acquisition and as to which a party may properly seek release under the Administrative Code is not an "asset” within the meaning of the Business Corporation Law. The majority’s reasoning was rejected by the dissenters, who were of the view that the mandatory release provision in the code enabled PRF to collect its principal asset owned at the time of foreclosure and to sell it to East Associates for the purpose of discharging its outstanding tax liabilities. The dissenters determined that this sale was accomplished in connection with the liquidation of PRF’s business as expressly authorized by the Business Corporation Law.

This appeal is before us as of right pursuant to CPLR 5601 (a). We now reverse and dismiss the petition.

II

At the outset, we reject respondents’ contention that petitioners lack standing to maintain this article 78 proceeding. As indicated, petitioners are would-be purchasers of the foreclosed buildings under the Tenant Interim Lease Program. One of the purposes of section 11-424 clearly is to determine the ultimate ownership of the foreclosed property — if a release application is approved, the property is returned to the former owner but if such application is disapproved, the property remains with the City and may be disposed of pursuant to various City programs providing for the management and purchase of foreclosed properties. Thus, petitioners, as potential owners of the properties, arguably fall within the zone of interest of the statute. Additionally, petitioners have not only been affected as potential buyers, their interest, as tenants, in the future status of their homes also is at issue here. Moreover, respondents do not contend that there is any legislative intent to preclude review of the City’s decision in this case (see generally, Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Dairylea Coop. v Walkley, 38 NY2d 6).

¡II

We turn then to the issue of whether a corporation dissolved by proclamation pursuant to Tax Law § 203-a is "eligible” to seek release of its formerly owned property pursuant to section 11-424 of the Administrative Code. It is clear from the language of the code that a release application must be granted where it has been filed within four months from the date of foreclosure provided that the Corporation Counsel has approved the application "as to form, timeliness and eligibility” and the applicant has paid the required sums (Administrative Code § 11-424 [f]). It is the City’s contention that the Corporation Counsel’s interpretation of the eligibility requirement specified in section 11-424 (f) as referring exclusively to whether an applicant possessed an interest in the foreclosed property at the time of acquisition by the City is rational and that, since it is undisputed that PRF owned the buildings in question at the time of foreclosure, no further inquiry by the Corporation Counsel into "eligibility” was required. The majority at the Appellate Division held, however, that, at a minimum, the Corporation Counsel was required to review PRF’s release application in order to ensure that granting the relief requested would not violate other statutory mandates. That interpretation would require the Corporation Counsel in the present case to determine whether the provisions of the Business Corporation Law applicable to dissolved corporations rendered PRF ineligible to apply for release thereby requiring the denial of PRF’s application.

Although the term "eligibility” is not defined in the Administrative Code, there appears to be no express requirement that the Corporation Counsel survey State and local laws to determine whether an applicant otherwise eligible by virtue of an interest in the property at the time of foreclosure, might be nonetheless precluded from applying for release of its former property. The requirements for release of foreclosed property enumerated in section 11-424 are that the applicant must have had an interest in the property "as either owner, mortgagee, lienor, or encumbrancer” at the time of the City’s foreclosure and that this interest must have been recorded (Administrative Code § 11-424 [a], [b]). When these requirements are satisfied, and the application together with the necessary documentation are filed within four months from the date of foreclosure, the application must be granted provided the Corporation Counsel otherwise approves the application "as to form, timeliness and eligibility” and the applicant pays all required amounts (Administrative Code § 11-424 [f]). Here, it is undisputed that PRF owned the buildings in question at the time of foreclosure and that its release application was otherwise valid and proper. Thus, applying the familiar standard of review that the "[interpretation of a statute by the agency charged with its enforcement is, as a general matter, given great weight and judicial deference so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute” (Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166, 173), we conclude that the Corporation Counsel’s interpretation of "eligibility” under the statute and his approval of the application were neither arbitrary nor irrational merely because the application was not checked against the provisions of the Business Corporation Law pertaining to dissolved corporations. In any event, the determination of PRF’s eligibility and the approval of the release application in this case were entirely proper and in no way violated the provisions of the Business Corporation Law.

Business Corporation Law § 1005 (a) (1) states that a dissolved corporation "shall carry on no business except for the purpose of winding up its affairs”. The statute defines "winding up” as the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets (Business Corporation Law § 1005 [a] [2]). The majority at the Appellate Division concluded that by applying for release of its former property and arranging for the transfer of that property to East Associates, PRF violated the statute by carrying on new business unrelated to the collection or sale of existing assets. The court reasoned that PRF could not dispose of an asset it did not possess and that once title to the properties vested in the City those properties ceased to be corporate assets (see, Matter of Lewis v Schwartz, 119 AD2d 116, supra).

It is, of course, true that once the City foreclosed on the buildings it obtained an estate in fee simple absolute, thereby cutting off any property rights once held by PRF (Administrative Code § 11-412 [b]). The analysis does not end there, however. The City’s retention of title to the properties is expressly made subject to the provisions of section 11-424 which permit a former property owner to recover foreclosed property by filing a release application with the City (Administrative Code § 11-412 [b]). Thus, the release provision provided PRF with a remedy permitting it to recover those properties from the City.

Business Corporation Law § 1006 (b) provides that "[t]he dissolution of a corporation shall not affect any remedy available to or against such corporation * * * for any right or claim existing * * * before such dissolution”. Thus, under this provision, PRF was entitled to pursue any remedy available to it in respect to the reacquisition of property it owned prior to its dissolution (cf., Independent Investor Protective League v Time, Inc., 50 NY2d 259, 264 [under Business Corporation Law § 1006 (b), "rights and remedies of the shareholders existing prior to dissolution are viewed as if the dissolution never occurred”]). PRF’s ability to reclaim its property does not depend on whether that property presently may be characterized as a corporate asset; it is sufficient for purposes of the Business Corporation Law that a remedy exists permitting PRF to recapture a property right it possessed prior to its dissolution. Administrative Code § 11-424 grants such a remedy.

Finally, the challenge to the manner in which the back taxes were paid, i.e., by check of East Associates drawn to the City of New York as part of the consideration due PRF for the conveyance, is without merit. No provision of the Administrative Code expressly prohibits payment in this manner and allowing such payment comports with the essential purpose of the release provision — to enable the City to collect past due real estate taxes while relieving it of the burden of managing unwanted properties obtained through in rem foreclosure proceedings. As we conclude the petition must be dismissed, we need not address the contention of East Associates that it was wrongly denied a full evidentiary hearing by the trial court.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.

       Respondents PRF and East Associates also assert the equitable defense of laches, contending that petitioners were aware as early as January 30, 1986 that PRF had applied for release but unreasonably waited until July to institute an article 78 proceeding. This contention is meritless. Approval of the release application was not given until April 8, 1986; the original notice of petition is dated July 18, 1986 — thus, the instant proceeding was brought well within the four-month limitations period provided in CPLR 217.