author: Levine, J.

text:
    [676 NE2d 847, 654 NYS2d 85]
    City of New York et al., Respondents, v Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Appellants, and New York State Public Employment Relations Board et al., as Necessary Party Respondents; Dennis C. Vacco, as Attorney-General of the State of New York, Intervenor-Appellant.
    Argued and submitted November 13, 1996;
    decided December 19, 1996

      POINTS OF COUNSEL

      Lysaght, Lysaght & Kramer, P. C., Lake Success (James J. Lysaght and Elliot I. Susser of counsel), for appellants.

      Dennis C. Vacco, Attorney-General, New York City (Thomas D. Hughes, Barbara Gott Billet and Lucia M. Valente of counsel), intervenor-appellant pro se.

      Paul A. Crotty, Corporation Counsel of New York City (Marilyn Richter, Pamela Seider Dolgow, Alan M. Schlesinger and Linda H. Young of counsel), for respondents.

      Gary Johnson, Albany, for New York State Public Employment Relations Board, necessary party respondent.

      Victoria A. Donoghue, New York City, and Wendy E. Patitucci for Board of Collective Bargaining of the City of New York and another, necessary party respondents.
   OPINION OF THE COURT

Levine, J.

The issue presented by this appeal is whether chapter 13 of the Laws of 1996 is unconstitutional because it was not enacted in compliance with the home rule requirements of article IX, § 2 of the State Constitution. We conclude that because this "special law,” which relates to the "property, affairs or government” of New York City, was not enacted to further a matter "of sufficient importance to the State generally” (Matter of Kelley v McGee, 57 NY2d 522, 538), its enactment without a home rule message from New York City renders the chapter law unconstitutional and unenforceable.

Under Civil Service Law § 209, public employers and the collective bargaining representatives of public safety employees may invoke the assistance of the Public Employment Relations Board (PERB) when they believe an impasse has been reached during collective bargaining negotiations and, if mediation fails to effect a settlement, a binding arbitration panel will resolve the dispute (Civil Service Law § 209 [4]). However, when the binding arbitration procedures were first added to section 209 in 1974, New York City’s collective bargaining law already provided for binding arbitration supervised by the City’s Board of Collective Bargaining (BCB), the City’s "mini-PERB,” when an impasse was reached between the City and any of its employees, including its police and firefighters (Administrative Code of City of NY § 12-311 [enacted as 1173-7.0 in 1967, amended 1972]). In recognition of that existing impasse arbitration mechanism, when initially enacted PERB’s binding arbitration procedures for public safety employees specifically exempted members of New York City’s police and fire departments (L 1974, ch 725 [police]; L 1974, ch 724 [firefighters]).

The City’s earlier establishment of its own procedures for the resolution of bargaining impasses was pursuant to authority which has existed since the enactment of Civil Service Law § 212 in the original Taylor Law (L 1967, ch 392, § 2). That section permits a local government to opt out of certain provisions of the Taylor Law pertaining to PERB’s jurisdiction, including the impasse procedures of section 209, by enacting through local law, procedures which are "substantially equivalent” to the corresponding procedures of the Taylor Law (Civil Service Law § 212 [1]).

While all other local governments must submit their local procedures to PERB for prior approval (id.), New York City’s procedures are deemed effective "unless and until * * * found by a court of competent jurisdiction, in an action brought by [PERB] * * * not to be substantially equivalent” to the procedures of the Taylor Law (Civil Service Law § 212 [2]). Although the BCB’s binding arbitration procedures differ in a number of respects from those of Civil Service Law § 209, because PERB has never judicially challenged the variations of the New York City impasse procedures, it must be assumed that PERB has determined that the City’s impasse procedures nonetheless remain substantially equivalent to those set forth in subdivision (4) of Civil Service Law § 209.

The collective bargaining agreement (CBA) between the City and defendant Patrolmen’s Benevolent Association (PBA), the bargaining representative for New York City police officers, expired on March 31, 1995, and the parties were unable to reach an agreement with respect to a successor CBA. In January 1996, under the then applicable procedures, the City requested that the BCB appoint an impasse arbitration panel (see, Administrative Code § 12-311). Also at that time, the bill which was to become chapter 13 and which purported to give PERB exclusive jurisdiction over negotiation impasses between the City and the New York City police, passed both houses of the State Legislature. In February 1996, the Governor vetoed the bill, but it was enacted into law by an override vote shortly thereafter.

Following passage of chapter 13, the PBA sought to transfer to PERB the City’s impasse panel request pending before the BCB and have PERB declare an impasse in negotiations between the City and the PBA. The City objected and commenced this action seeking, inter alia, a declaration that chapter 13 of the Laws of 1996 is unconstitutional because it was passed without a home rule message in violation of New York Constitution, article IX, § 2. PERB and the BCB were joined as necessary parties and the actions of both boards with respect to the impasse requests before them were stayed pending the outcome of this litigation.

On cross motions for summary judgment, Supreme Court declared chapter 13 of the Laws of 1996 unconstitutional, and the Appellate Division affirmed (231 AD2d 422). The appeal is before us as of right on constitutional grounds.

Article IX, § 2 of the State Constitution grants significant autonomy to local governments to act with respect to local matters. Correspondingly, it limits the authority of the State Legislature to intrude in local affairs, by giving it "the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only * * * on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership” (NY Const, art IX, § 2 [b] [2] [emphasis supplied]). Thus, a special law which relates to the property, affairs or government of New York City violates this constitutional provision unless enacted upon a home rule message from the City.

Chapter 13 of the Laws of 1996 is entitled "[a]n act to amend the civil service law in relation to providing jurisdiction to [PERB] to enter disputes which reach an impasse in the course of collective negotiations between the public employer and the New York city police.” Section 1 states further:

"Notwithstanding any other provision of law to the contrary, the public employment relations board may invoke procedures to be followed in the event of disputes which reach an impasse in the course of collective negotiations between the public employer and the New York city police” (L 1996, ch 13, § 1).

Section 2 amends Civil Service Law § 209 to remove the exemption of the New York City police and fire department members from PERB’s binding arbitration impasse procedures.

Although chapter 13 did not amend Civil Service Law § 212 in so many words, manifestly the act’s expressly stated purpose — to provide PERB with jurisdiction over the impasse arbitration procedures previously vested in the City’s BCB— can only be achieved if section 1 creates an exception for "negotiations between the public employer and the New York city police” with respect to the statutory authority of all other local governments, under Civil Service Law § 212, to completely opt out of PERB’s jurisdiction over impasse procedures. That is, under section 1 of chapter 13, "notwithstanding” the existence of BCB jurisdiction over impasses between the City and its employees’ bargaining representatives (because of the City’s enactment by local law of its mini-PERB and local procedures), an impasse between the City and the PBA would be governed by Civil Service Law § 209 and PERB.

It would, thus, appear to be indisputable that chapter 13, an act "in relation to * * * collective negotiations between the [City] and the New York city police,” is a special law because it applies only to New York City (see, NY Const, art IX, § 3 [d] [4] [defining "special law” as "(a) law which in terms and in effect applies to one or more, but not all * * * cities”]; City of New York v State of New York, 76 NY2d 479; Matter of Town of Islip v Cuomo, 64 NY2d 50, 52; cf., City of Amsterdam v Helsby, 37 NY2d 19, 27 [amendment to Civil Service Law § 209 providing for binding arbitration when an impasse is reached between public employer and public safety employees is a general law because it applies to all public employers]). By virtue of chapter 13, only New York City, among all units of local government throughout the State, is prohibited from providing for a local public employment relations board with jurisdiction over binding arbitration procedures when an impasse is reached in negotiations with its police force.

Moreover, the proposition that chapter 13 relates to the "property, affairs or government” of New York City cannot be seriously contested, as it regulates the bargaining process between the City and its police department members and thus relates to the terms and conditions of employment of this local public safety force (see, Matter of Osborn v Cohen, 272 NY 55 [personnel structure and hours of employment of City’s fire department is a matter of local, concern]).

Thus, there is little question but that chapter 13 of the Laws of 1996 is a special law relating to New York City triggering the home rule procedural requirements of the Constitution. We have, however, recognized an exception to those requirements if "the subject matter of the statute is of sufficient importance to the State generally to render it a proper subject of State legislation” (Matter of Kelley v McGee, 57 NY2d, at 538, supra).

The PBA argues that the State interest exception applies here and that the general presumption of constitutionality that attaches to legislative enactments (see, City of New York v State of New York, 76 NY2d, at 485, 487, supra; Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358, 370) requires application of the "any conceivable legitimate objective” standard applicable under minimal scrutiny equal protection rational basis analysis (see, Maresca v Cuomo, 64 NY2d 242, 251 [when applying the equal protection rational basis test "a court may even hypothesize the motivations of the State Legislature to discern any conceivable legitimate objective promoted by the provision under attack”], appeal dismissed 474 US 802). We disagree.

First, the equal protection rational basis standard, applied generally to attacks on State social or economic regulation and which validates measures reasonably related to any conceivable legitimate State interest, is not an appropriate analogy to the sensitive balancing of State and local interests required in resolving home rule issues under our State Constitution. As is the case when the rational basis standard is applied to constitutional litigation in the equal protection context, judging the constitutionality of special State local legislation will almost invariably result in upholding the statute over home rule objections, if it is sufficient for its validity that the law merely bears some relationship to some conceivable State interest.

In recognition of the competing constitutional values involved when State legislation impinges on and overlaps with local concerns and that, therefore, a more substantive nexus should be required if home rule is to remain a vital principle of fundamental law, Chief Judge Cardozo framed the issue as follows:

"The question to be faced is this, has the State surrendered the power to enact local laws by the usual forms of legislation where subjects of State concern are directly and substantially involved, though intermingled with these, and perhaps identical with them, are concerns proper to the city?” (Adler v Deegan, 251 NY 467, 489-490 [concurring opn] [emphasis supplied], rearg denied 252 NY 574, remittitur amended by 252 NY 615.)

The Court in Adler answered that question in the negative, rejecting the views of the dissenting Judges that would have even more restrictively limited the authority of the State to legislate in relation to local matters. The standard which has been accepted as appropriately balancing State and local interests was first formulated by Chief Judge Cardozo in his concurring opinion in Adler v Deegan (supra):

"The test is rather this, that, if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality” (251 NY, at 491 [emphasis supplied]).

Thus, where State concern is involved "to a substantial degree, in depth or extent,” the State may freely legislate notwithstanding the legislation’s impact on local concerns (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494 [emphasis supplied]).

Therefore, for the State to enact a special law on local affairs without complying with home rule requirements, its interest in the subject matter must be substantial. Moreover, and as a corollary to the constitutional balancing of overlapping local and State interests requiring that the "subjects of State concern [must be] directly and substantially involved” (Adler v Deegan, supra, 251 NY, at 490 [Cardozo, Ch. J., concurring] [emphasis supplied]), the enactment must bear a reasonable relationship to the legitimate, accompanying substantial State concern. Otherwise, "[interference in such a degree would be intrusion upon a concern or interest of the city without a compensating offset in the advancement of a concern or interest of the [SJtate” (Adler v Deegan, supra, at 486 [Cardozo, Ch. J., concurring] [emphasis supplied]). Thus, State legislation impacting especially on a locality is only valid if "it can be stated that the statutes in question 'serve a supervening State concern’ ” (Town of Monroe v Carey, 96 Misc 2d 238, 242 [emphasis supplied] [quoting Wambat Realty Corp. v State of New York, 41 NY2d, at 495, supra], affd on opn at Sup Ct 46 NY2d 847), and "relate to life, health, and the quality of life [of the People of the State]” (Wambat Realty Corp. v State of New York, supra, 41 NY2d, at 495 [emphasis supplied]).

Finally, the substantial State concern which will be permitted to trump constitutional home rule requirements regarding a particular enactment cannot be derived, as the PBA suggests, purely from speculative assertions on possible State-wide implications of the subject matter, having no support in the language, structure or legislative history of the statute. Again, it would be absolutely inconsistent with the sensitive balancing of State and local interests that has been our tradition in home rule litigation to allow the State to justify legislation inimical to the constitutional values of the home rule article based purely on considerations having no apparent role in its enactment, no matter how plausibly conceived as an afterthought. Thus, in Matter of Osborn v Cohen (272 NY 55, supra), the legislation at issue directed a New York City referendum on regulating the hours and shifts of City firefighters. Supreme Court had upheld the constitutionality of the statute on the ground that restricting working hours of firefighters would increase their efficiency and thereby enhance the safety and health of the City’s large population of residents and transients — matters already identified as legitimate subjects of State concern. This Court in Osborn rejected that rationale "so drily logical drawn from asserted facts without foundation in the record” (272 NY, at 59, supra [emphasis supplied]). To the contrary, our precedents have consistently relied upon the stated purpose and legislative history of the act in question to find, or reject, a substantial State concern (see, e.g., Matter of Town of Islip v Cuomo, 64 NY2d, at 53-54, supra; Matter of Kelley v McGee, 57 NY2d, at 539, supra; Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d, at 369, 374, supra; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 566, affd 61 NY2d 652; Town of Monroe v Carey, 96 Misc 2d, at 241, supra).

Assessing chapter 13 of the Laws of 1996 by the foregoing criteria, we come to the same conclusion as Supreme Court and the Appellate Division, that this legislation cannot be upheld under any substantial State interest exception to the requirements of article IX, § 2 of the Constitution. Since chapter 13 itself does not expressly identify any State concern motivating its enactment, we turn to its legislative history. Contrary to the PBA’s assertions on appeal, the legislative history of chapter 13 simply does not evidence that the Legislature enacted it out of serious public safety concerns. Rather, the legislative record discloses that the reason for chapter 13’s introduction and passage most consistently and unequivocally expressed was to create State-wide uniformity with respect to impasse procedures available to police department members under Civil Service Law § 209, the lack of uniformity under then existing law being described as "a glaring inequity” (Sponsor’s Mem to L 1996, ch 13; see, Assembly Debate on Assembly Bill A 8482/S 5779, Jan. 24, 1996, at 13, 47, 50, 72 [statements of Assembly Sponsor Crowley, and Members Weisenberg and Becker]; Senate Debate on Senate Bill S 5779, Jan. 24, 1996, at 563 [statement of Senate Sponsor Trunzo]; Assembly Debate on Vote to Override Governor’s Veto of Senate Bill S 5779, Feb. 12, 1996, at 79 [statement of Assemblymember Weisenberg]; Senate Debate on Vote to Override Governor’s Veto of Senate Bill S 5779, Feb. 12, 1996, at 1220-1221, 1222 [statements of Senators Waldon and Oppenheimer]).

The Legislature was also prompted by the belief that the binding arbitration procedures of Civil Service Law § 209 under PERB’s neutral jurisdiction would provide a fairer forum for the New York City police than the more parochial, existing local impasses procedures (see, e.g., Sponsor’s Mem, op. cit.; Assembly Debate, Jan. 24, 1996, op. cit, at 14, 22, 36, 51 [statements of Assembly Sponsors Crowley and Vitaliano and Member Lopez]; Assembly Debate, Feb. 12, 1996, op. cit., at 80 [statement of Assemblymember Townsend]). There were also expressions in the debate by some individual members of the Legislature that Civil Service Law § 209’s procedures would likely result in greater parity between the salaries of New York City police and those in other large metropolitan areas of the State (see, e.g., Senate Debate, Feb. 12, 1996, op. cit., at 1221, 1224 [statements of Senators Waldon and Abate]).

To whatever degree the foregoing set of expressed purposes for enacting chapter 13 might represent matters of legitimate, substantial State concern, the statute bears no reasonable relationship to those goals. The act does not and cannot accomplish the most clearly expressed legislative objective, of achieving State-wide uniformity in impasse arbitration procedures, because all other jurisdictions but the City retain the right under Civil Service Law § 212 to opt out of PERB’s impasse procedures by creating local mini-PERBs and, indeed, many large metropolitan units of local government have chosen that alternative. Thus, rather than creating an impasse arbitration procedure uniformly available to all police State-wide, chapter 13 singles out the New York City police for different treatment.

. To the extent that the legislative purpose in enacting chapter 13 was based on the assumptions that fairer, more economically favorable procedures would be achieved by replacing the City’s local mini-PERB with the State Board, resulting in the elimination of salary disparities with other metropolitan police departments, these assumptions are refuted by the unchallenged substantial equivalency PERB has determined exists with respect to its own impasse arbitration procedures and those used by the other mini-PERB’s created under the authority of Civil Service Law § 212, New York City’s BCB included. In this regard, it is particularly noteworthy that many of the police departments in nearby metropolitan localities cited in the legislative record to demonstrate the disparate salary treatment of New York City police are subject to impasse arbitration procedures supervised by local mini-PERB’s, not the State PERB.

Thus, chapter 13 of the Laws of 1996 does not serve to advance nor is it reasonably related to the professed State concerns which prompted its enactment. It follows that the constitutional infirmity of this special law unquestionably "related] to the property, affairs or government” (NY Const, art IX, § 2 [b] [2]) of New York City, for which no home rule message was ever sent, cannot be cured under the substantial State interest exception.

Nor can we accept the PBA’s alternative argument that we should strike down as unconstitutional only section 1 of chapter 13 and leave standing section 2, which does no more than remove the specific exemption for New York City police and fire department members from the impasse procedures of Civil Service Law § 209 if and when applicable. In the absence of evidence that the Legislature would have intended that section 2’s amendment of Civil Service Law § 209 remain effective if the primary purpose of the act — to provide PERB with jurisdiction over an impasse between the City and its police force— could not be given effect, there is no basis to sever chapter 13 and uphold section 2 (see, Association of Surrogates & Supreme Ct. Reporters v State of New York, 79 NY2d 39, 47-48 [quoting People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60, rearg denied 231 NY 516, cert denied sub nom. State Tax Commr. v People ex rel. Alpha Portland Cement Co., 256 US 702]).

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

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

Order affirmed, with costs.

      . While the arbitrators supervised by PERB may issue a determination effective for no more than two years, the effect of the recommendation of the BCB’s impasse panel is not limited to a two-year period (compare, Civil Service Law § 209 [4] [c] [vi], with Administrative Code § 12-311). Additionally, under Civil Service Law § 209, the arbitrators’ determination is subject only to limited judicial review (Civil Service Law § 209 [4] [c] [vii]), while the BCB may review the merits of the impasse panel’s recommendation upon appeal of either party (Administrative Code § 12-311 [c] [4] [c]).

      . With the exception of New York City, the Legislature may also enact a special law relating to the locality’s property, affairs or government on a message of necessity from the Governor in which two thirds of the members of each house concur (NY Const, art IX, § 2 [b] [2]).

      . The parties do not dispute Supreme Court’s judicial notice that, in addition to New York City, the Counties of Nassau, Suffolk and Westchester, and the Town of Hempstead and the Syracuse City School District have also opted to create their own mini-PERBs under Civil Service Law § 212.

      . Constitutional scholar Laurence H. Tribe characterizes the rational basis level of equal protection scrutiny as an exercise of "remarkable deference” and "largely toothless” judicial review (Tribe, American Constitutional Law, at 1443, 1601 [2d ed]).


source: Caselaw Access Project

license: Public Domain

text:
    [676 NE2d 854, 654 NYS2d 92]
    In the Matter of Cayuga-Onondaga Counties Board of Cooperative Educational Services, Appellant, v John E. Sweeney, as Commissioner of Labor of State of New York, et al., Respondents.
    Argued November 20, 1996;
    decided December 20, 1996

      POINTS OF COUNSEL

      Bond, Schoeneck & King, LLP, Syracuse (Thomas J. Grooms and Sharon M. Sulimowicz of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, New York City (Jennifer S. Brand, Barbara G. Billet, Peter H. Schiff, Daniel F. De Vita and M. Patricia Smith of counsel), for respondents.

      Donna M. C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

      Jay Worona, Albany, and Cheryl Randall for New York State School Boards Association, Inc., amicus curiae.

   OPINION OF THE COURT

Levine, J.

The facts of this controversy are essentially undisputed. In 1992, petitioner Cayuga-Onondaga Counties Board of Cooperative Educational Services (BOCES) entered into an agreement with one of its member school districts, the Auburn City School District, to provide the labor for a lighting improvement project consisting of changing the ballasts in the fluorescent lighting to more energy efficient ballasts at all school buildings throughout the district. BOCES hired 41 full-time employees of the Auburn school district to work after hours in performing the installation. BOCES applied to the Cayuga County Civil Service Commission and obtained a civil service classification of these workers as temporary, seasonal laborers of BOCES. Their BOCES pay rates were the same as they received from the Auburn school district, but they were not compensated at overtime rates, which they would have received had they performed the work directly for the school district. The Auburn City School District reimbursed BOCES for its payments to the workers on the ballast replacement project.

After receiving informal complaints from workers in the ballast replacement project, an official of the area’s electrical workers union (which did not represent the workers involved) filed a formal complaint with the State Department of Labor averring that BOCES was required to pay the prevailing wage rate for electricians to its employees on the project. Following a Department field investigation, the Commissioner of Labor issued a notice of hearing to BOCES in March 1994 on allegations that BOCES failed to pay the prevailing wages and supplements to 41 of its employees on the Auburn school district lighting project, in violation of Labor Law § 220.

At the conclusion of the hearing, the Hearing Officer issued a report and recommendation. The Hearing Officer found that the arrangement between the Auburn City School District and BOCES was made to avoid the school district’s liability for payment of overtime wages to its employees working on the project; that BOCES was acting in the capacity of a general contractor for the school district on the project; and that the type of work performed by the 41 BOCES employees was generally performed by electricians. The Hearing Officer determined that the ballast replacements constituted a public work project and that BOCES violated Labor Law § 220 in failing to pay its workers prevailing electricians’ wage rates. She further ruled, that BOCES was not exempt from the requirements of Labor Law § 220 by reason of its employees’ civil service classifications as temporary seasonal laborers.

The Commissioner of Labor adopted the Hearing Officer’s report in all respects and ordered a further hearing for the purpose of determining the amount of underpayment, any civil penalty and willfulness. The Appellate Division confirmed the determination and dismissed the petition (224 AD2d 989). We granted BOCES permission to appeal.

BOCES’ primary grounds for reversal are that the Commissioner of Labor lacked jurisdiction to make the determination herein because a timely notice of claim against BOCES in compliance with Education Law § 3813 (1) was never filed by the Department of Labor and because the Commissioner failed to commence formal proceedings against it through the service of notice of hearing until after the one-year Statute of Limitations of Education Law § 3813 (2-b) had expired. We find these arguments unpersuasive.

In determining the applicability of the three-month notice of claim requirement of Education Law § 3813 (1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services, as well as parallel notice of claim requirements when such proceedings involve other municipal units of government, our Court has distinguished between proceedings "which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter” (Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371, 380, rearg denied 36 NY2d 807).

Thus, in Union Free School Dist. No. 6 (supra), the issue was the validity of a provision of a collective bargaining agreement mandating inferior treatment of pregnancy and child birth absences from absences based on other physical or medical disabilities, challenged as illegal sex discrimination. We held that although the "proceeding was triggered by the complaint of this one teacher”, and the monetary relief granted would benefit the complainant and teachers similarly situated, those "advantages * * * flow[ed] as an appropriate and intended consequence of the vindication by the division, acting on behalf of the public, of the public’s interest in the elimination of discrimination based upon sex — a public interest duly declared by legislative enactment” (35 NY2d, at 380).

Contrastingly, in Mills v County of Monroe (59 NY2d 307, 312, cert denied 464 US 1018) a plenary civil damage action authorized under State and Federal antidiscrimination statutes seeking only personal redress for "allegations of actionable conduct on the part of the county refer[able] only to conduct that relates to [the plaintiff],” the filing of a notice of claim, as generally required under County Law § 52 (1), was held to be a condition precedent to the suit.

The instant proceeding initiated by the Commissioner of Labor to enforce prevailing wage payment requirements for public work projects under section 220 of article 8 of the Labor Law falls well within the vindication of a public interest category, for which statutory notice of claim requirements are inapposite.

First, the mandate that laborers, workers and mechanics employed in public work projects be paid the wages "prevailing” in their trade or occupation in the locality is not merely of statutory derivation but has its underlying basis in article I, § 17 of the State Constitution. The prevailing wage requirement was first enacted in legislative form in 1894 (L 1894, ch 622; see, Report of Temp St Commn on Constitutional Convention of 1967, Housing, Labor and Natural Resources, at 80). In response to this Court’s decision in People ex rel. Rodgers v Coler (166 NY 1), which partly invalidated the 1894 law, the State Constitution was amended in 1905 to authorize prevailing wage legislation (Report of Temp St Commn on Constitutional Convention of 1967, op. cit, at 80).

The prevailing wage/public work requirement was retained as a constitutional imperative in its present form in the 1938 State Constitution. Constitutional Convention Delegate (and State Senator) Dunnigan, a proposer of its retention, argued that inclusion of the prevailing wage mandate in the Constitution was necessary because "it has become a fixed principle in our society, which should be embodied in our organic law so as to insure its continuance [and] * * * because it should assume constitutional proportions so that this policy of state may be manifest to labor and industry as a principle of state” (3 Revised Record, 1938 Constitutional Convention, at 2204).

Labor Law § 220, in content, structure and purpose confirms that a proceeding such as this, brought by the Commissioner of Labor to enforce the statutory and constitutional mandate, has as its overriding goal the vindication of a public interest rather than just to provide a forum in a particular case for the adjudication of a claimed personal statutory right, as in Mills v County of Monroe (supra) (see also, Board of Educ. v New York State Div. of Human Rights [Arluck], 44 NY2d 902, 904, rearg denied 45 NY2d 838; Matter of Board of Educ. [Wager Constr. Corp.], 37 NY2d 283). Section 220 has been characterized as "an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen, and mechanics” (Austin v City of New York, 258 NY 113, 117 [Cardozo, Ch. J.] [emphasis supplied]).

The statutory procedures, powers and duties of the Commissioner and available remedies and sanctions under section 220 and the other provisions of article 8 of the Labor Law all have the earmark of a powerful administrative mechanism for the enforcement of a strong public policy, over which a private complainant has no control. Except for New York City’s public work projects, the Commissioner of Labor is required to ascertain prevailing wage rates on all public work performed in the State, irrespective of whether affected workers have complained of a violation of the statute (Labor Law § 220 [3]). The Commissioner is riot limited to responding to a formal, verified complaint of an "interested person” employed in the performance of a public work, but "may [as in the instant case] on his [or her] own initiative cause a compliance investigation to be made” (Labor Law § 220 [7] [emphasis supplied]). The Commissioner determines whether to hold a formal statutory hearing to adjudicate any violation preliminarily disclosed through the compliance investigation (Labor Law § 220 [8]). The Commissioner must investigate "the willfulness of the alleged violation” (Labor Law § 220 [7-a]) — obviously an issue entirely independent of the resolution of the claims of individual workers to additional remuneration up to the appropriate prevailing wage rate. A willful violation carries criminal sanctions (Labor Law § 220 [3]), and a second administrative adjudication of a willful violation within a six-year period renders the violator ineligible for any award of a public work contract for five years (Labor Law § 220-b [3] [b]). Moreover, even in the absence of a willful violation, upon a determination of a prevailing wage rate violation, the Commissioner is authorized not only to grant remedial relief to affected workers, but may also impose a civil penalty of up to 25% of the total additional wages and supplements due, payable to the State (Labor Law § 220 [8]).

All of the foregoing potent tools available to the Commissioner of Labor under section 220 and other provisions of Labor Law article 8 to enforce the public policy of the State, for the payment of prevailing wages on all public work projects, may be exercised independently of the position or even existence of a private complainant. Thus, proceedings under section 220 are the antithesis of proceedings for the enforcement of private rights, statutory or otherwise. Subjecting the Commissioner’s jurisdiction under section 220 and companion sections of Labor Law article 8 to the three-month notice of claim requirements of Education Law § 3813 (1) would drastically weaken the Commissioner’s ability to enforce the strong prevailing wage policy of the State against school districts. Thus, prevailing wage enforcement proceedings under Labor Law § 220 constitute instances where the public "interests in their resolution on the merits override [a school district’s or BOCES’] interest in receiving timely notice before commencement of an action” (Mills v County of Monroe, supra, 59 NY2d, at 311), and the Commissioner’s failure to file a notice of claim under Education Law § 3813 (1) is not preclusive.

Likewise, in enforcement proceedings under Labor Law § 220 or other provisions of article 8 of that statute, the Commissioner of Labor is not bound by the one-year Statute of Limitations of Education Law § 3813 (2-b). All of the public policy considerations for finding that Education Law § 3813’s notice of claim requirement is inapplicable to these proceedings are equally valid with respect to the Statute of Limitations set forth in that section. We have already held that a procedural bar to the suit of a private individual may not preclude a State administrative agency from enforcement proceedings "vindicating] a public right to protection against conduct which the Legislature has found is inimical to the welfare of the People of the State” (Matter of New York State Labor Relations Bd. v Holland Laundry, 294 NY 480, 495 [litigation between employer and employees not a res judicata bar against State Labor Relations Board action covering the same subject matter], rearg denied 295 NY 568).

Moreover, applying either the notice of claim or Statute of Limitations provisions of Education Law § 3813 to prevailing wage law enforcement proceedings would conflict with (1) the three-year period given the Commissioner of Labor within which to initiate enforcement proceedings under Labor Law § 220-b (2) (for withholding amounts due the contractor or subcontractor); (2) the authority of the Commissioner of Labor to docket an administrative order determining liability for failure to pay prevailing wages as a money judgment, without commencing a plenary action (Labor Law § 220 [8]; § 220-b [2] [f]); and (3) various periods of limitation contained in Labor Law article 8 for the commencement of civil actions against violators to recover the deficiencies in payment of prevailing wages, all of which are measured from the date of the final administrative determination of a prevailing wage violation by the Commissioner of Labor (such as challenged here) after the completion of judicial review, if any (see, Labor Law § 220 [8]; § 220-b [3] [a]; Bucci v Village of Port Chester, 22 NY2d 195, 203-204 [the municipal notice of claims statutes have no "relevancy or application to actions brought pursuant to subdivision 8 of section 220”]). Since notice of claim requirements have no relevance to article 8 civil actions (Bucci v Village of Port Chester, supra), a fortiori they have no relevance to the Commissioner’s enforcement proceedings (as in the instant case) upon which the civil actions are based.

In equating this enforcement action with the private damages action at issue in Mills, the dissent ignores the breadth of the statutory enforcement tools available to the Commissioner, the independent limitations periods for administrative enforcement actions contained in the Labor Law, the limitations periods for statutory civil actions which are dependent on the administrative determination, and the controlling precedential effect of Bucci (supra) here, that since notice of claims requirements are not applicable to these Labor Law civil actions they cannot, a fortiori, be applicable to the administrative enforcement proceedings upon which those actions depend.

We also reject BOCES’ alternative argument for reversal, that because the 41 Auburn school district employees hired by BOCES to perform the ballast replacements were classified by the Cayuga County Civil Service Commission as temporary seasonal employees of BOCES, they fall within the common-law exemption from the statutory prevailing wage rate mandate for classified and graded public employees (see, Matter of Corrigan v Joseph, 304 NY 172, rearg denied 304 NY 759, cert denied sub nom. Remelius v Joseph, 345 US 924; Matter of Buffalo Bldg. Trades Council v Board of Educ., 36 NY2d 782; Wood v City of New York, 274 NY 155). Because the 41 workers were ungraded employees of BOCES, awarding them increases in remuneration to the level of prevailing wage rates would not effectively grant them a promotion to above-grade salary levels. Hence, no violation of Civil Service Law principles of merit and fitness promotions are implicated by application of Labor Law § 220 here, and the exemption does not apply (see, Matter of Gaston v Taylor, 274 NY 359, 363; cf., Matter of Corrigan v Joseph, supra).

All other issues raised here were unpreserved and have not been considered.

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

Ciparick, J. (dissenting). Because we conclude that a notice of claim should have been served on petitioner pursuant to Education Law § 3813 (1), we would reverse the order of the Appellate Division. Therefore, we respectfully dissent.

Respondent, Commissioner of Labor, initiated the underlying proceeding pursuant to Labor Law § 220 (7) to determine whether petitioner, Cayuga-Onondaga Counties Board of Cooperative Educational Services (BOCES), paid 41 employees of the Auburn City School District and Moravia Central School District (collectively, Auburn) prevailing wages for the ballast replacement work performed in school buildings in those districts.

The Hearing Officer designated by the Commissioner found, as a matter of fact, that the "[e]mployees hired by [petitioner] received the civil service classification of laborer [and a]ll of the 41 employees were appointed by the Cayuga County Civil Service Commission as seasonal laborers employed by BOCES.” The Hearing Officer ruled, as a matter of law, that since BO-CES was acting as a contractor by performing work for a legal entity other than itself, the "State Constitution (Art I, § 17) and Labor Law § 220 require that workers engaged on such public work receive prevailing wages.” Thus, the Hearing Officer concluded that Auburn "used BOCES to avoid paying overtime wages and benefits to its employees” and that BO-CES, by hiring the Auburn employees as seasonal workers, did not pay the prevailing rate of wages. The Hearing Officer directed BOCES to pay the prevailing wage rates or provide supplements in accordance with Labor Law § 220 (8). Respondent Commissioner adopted and confirmed the Hearing Officer’s factual findings and conclusions of law, and ordered a further hearing to determine (1) the amount of underpayments, (2) whether to impose a civil penalty and (3) the willfulness of the Labor Law violations. The Appellate Division confirmed respondent’s determination (see, Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 224 AD2d 989).

We do not quarrel with the majority’s analysis that the principles embodied in Labor Law § 220, derived from article I, § 17 of our State Constitution, reflect the State’s policy and strong public interest that laborers, workers and mechanics employed in public work projects be paid "prevailing wages.” However, we disagree that an enforcement action brought pursuant to the administrative procedures outlined in Labor Law § 220 (7) and (8) excuses the Education Law’s express statutory notice of claim requirement which enjoins the prosecution or maintenance of any "action or special proceeding, for any cause whatever * * * relating to * * * the rights or interests of any district or any such school * * * against any * * * board of cooperative educational services * * * unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim” (Education Law § 3813 [1] [emphasis added]; see, Mills v County of Monroe, 59 NY2d 307, 309, cert denied 464 US 1018).

In Mills (supra), the Court determined that plaintiffs failure to comply with the pertinent notice of claim requirement was fatal to her employment discrimination suit. While recognizing the narrow, judicially crafted exception to notice requirements in actions brought to vindicate an important public interest, generally applied in the context of civil rights violations, the Mills Court drew an important, distinguishing line. There, plaintiff alleged that defendant, County of Monroe, impermissibly terminated her employment based on race and national origin in contravention of Executive Law § 296 and 42 USC § 1981, statutes which provide administrative remedies for individuals aggrieved by violations of both the State and Federal public policy outlawing discriminatory conduct. Faced with a motion for summary judgment for failure to file a notice of claim pursuant to County Law § 52, plaintiff Mills argued that the notice requirement was inconsistent with the remedial and deterrent policies of the civil rights laws (see, id., at 309).

Rejecting plaintiff’s argument, the Court determined that the State’s notice requirements were not antithetical to the policy underlying the civil rights laws since notice provisions themselves serve an important State interest — protecting municipalities and public corporations against fraudulent and stale claims (see, id., at 310-311) — and neither the public policy barring discriminatory conduct nor that intended to provide governmental entities xwith timely notice of a claim preempted or outweighed the other. The Court concluded that even though plaintiff was seeking to vindicate the right to be free of discriminatory employment practices — an important public interest embodied in both Federal and State statute — and she alleged that the County engaged generally in unlawful discriminatory practices, "her action seeks relief only for her termination [emphasis in original], which she alleges resulted from her opposition to the county’s discriminatory practices and her race and national origin. The relief she seeks is money damages for her loss of wages and damage to her reputation. Inasmuch as the disposition of plaintiff’s claim was not intended to nor could it directly affect or vindicate the rights of others, her action is properly characterized as one seeking the enforcement of private rights” (id., at 312 [emphasis added]; see also, 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 493, cert denied 481 US 1008; Board of Educ. v New York State Div. of Human Rights [Arluck], 44 NY2d 902, 904, rearg denied 45 NY2d 838; Matter of Saranac Lake Cent. School Dist. v New York State Div. Of Human Rights, 226 AD2d 794; Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 197 AD2d 276, 278-279, lv denied 84 NY2d 803; Matter of Harder v Board of Educ., 188 AD2d 783, 784; accord, Ruocco v Doyle, 38 AD2d 132, 134; cf., Matter of New York State Labor Relations Bd. v Holland Laundry, 294 NY 480, 495-496).

This reasoning applies with equal force to the instant appeal, which, distilled to its essence, is an action to recover lost wages. While any action brought to enforce a right protected by statute can be said to serve the public interest in some manner, Mills establishes that an action brought to vindicate a right — even a statutorily protected right generally categorized as one in the public interest — does not excuse an applicable notice requirement when the remedy sought inures strictly to the personal benefit of the aggrieved claimants.

The majority’s heavy reliance on Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd. (35 NY2d 371, rearg denied 36 NY2d 807) — decided nearly 10 years before Mills — to support its proposition that the underlying proceeding was one to vindicate a public right is misplaced. In that case, unlike Mills or the instant case, plaintiff’s action truly vindicated the important right to equal treatment in the workplace, which the Court concluded would inure to the benefit of a similarly situated class, by establishing that pregnant women possess rights equivalent to individuals who avail themselves of leaves of absences for other disabilities. That a statutory mechanism provides the method for aggrieved claimants to vindicate their personal economic interest in a recognized right does not transmute an action for alleged underpayment of wages to 41 employees into one to vindicate a public right, a point central to our disagreement with the majority’s holding.

Tracing the genesis of Labor Law § 220 (7) and (8), it is evident that these enforcement provisions were adopted for the purpose of providing workers on the job with an effective administrative remedy, not "to provide a method of enforcing the prevailing rate of wages statute generally” (Matter of Yerry v Goodsell, 4 AD2d 395, 398, affd 4 NY2d 999), which is what the majority holds. The predecessor sections to Labor Law § 220 (7) were penal in nature dictating criminal prosecution of violators but providing no remedy for the exploited worker to recover lost wages (see, Labor Law of 1909, § 3, as amended by L 1916, ch 152; see also, Matter of Gaston v Taylor, 274 NY 359, 361-362; Matter of Yerry v Goodsell, supra, 4 AD2d, at 398). The 1927 amendment to section 220 created the administrative procedure essentially in place today by which workers who claim to be aggrieved because they performed public work at a rate lower than the prevailing wage have the right to file a verified complaint with the Commissioner of Labor for an administrative determination of the prevailing wage rate (see, Labor Law § 220 [7] [originally added by L 1927, ch 563]). Contrary to the majority’s holding, it does not follow from this that every proceeding instituted to adjudicate a prevailing wage claim constitutes an action to vindicate a public interest which justifies discarding the statutory notice of claim requirement governing actions or special proceedings commenced against certain public corporations, such as a BOCES or a Board of Education (accord, Mills, 59 NY2d, at 312, supra). While it has been said that the complaint procedure set forth in Labor Law § 220 (7) "was designed solely for the purpose of enabling the employees on the job to obtain effective relief’ (Matter of Yerry v Goodsell, supra, 4 AD2d, at 399), to construe Labor Law § 220 (7) as the majority does effectively abolishes the prerequisite that a notice of claim be filed in an action for lost wages simply because there is a statutory scheme that invests a public official with investigatory and enforcement powers regarding a matter of public interest.

Moreover, the fact that Education Law § 3813 (1) specifically requires a notice of claim in contract actions places it outside the general rule restricting such requirement to claims against a municipality or public corporation to those sounding in tort (see generally, General Municipal Law §§ 50-e, 50-i; Administrative Code of City of NY § 7-201 [a]; see also, H&J Floor Covering v Board of Educ., 66 AD2d 588). The majority does not advance — nor is there — any valid or rational justification to exempt an action under Labor Law § 220 from this requirement or from the one-year Statute of Limitations (cf., Board of Educ. of Katonah-Lewisboro School Dist. v Board of Educ. of Carmel Cent. School Dist., 174 AD2d 704, 705 [public interest exception does not permit commencement of actions against school district after expiration of one-year Statute of Limitations provided in Education Law § 3813 (2-b)]) given that thé ultimate relief sought by claimants imposes a financial liability on BOCES, a component part of the school district, which financial award does not inure to the benefit of the members of a similarly situated class. The inclusion of a notice of claim requirement in Education Law § 3813 for contract actions is strong evidence of the legislative intent that a notice of claim is a condition precedent to the maintenance of an action by or on behalf of workers to collect purported underpayments of wages, regardless whether the "action” is brought in a court or an administrative tribunal. Certainly, if the Legislature intended to exempt Labor Law § 220 from these statutory prerequisites it would have done so in explicit terms. Thus, we conclude that the Commissioner’s failure to file a notice of claim mandates that the petition be granted.

The majority’s comment that we have ignored the breadth of the enforcement tools available to the Commissioner by suggesting that the limitations periods set forth in Education Law § 3813 (2-b), and the notice of claim requirement of Education Law § 3813 (1), apply to actions seeking to recover underpayments overlooks our point: it is the gravamen of the claim against BOCES — or a Board of Education — that controls the applicability of the statutory prerequisite of a notice of claim or limitations period, not the procedural posture in which the claim was initially pursued. The bald statement in Bucci v Village of Port Chester (22 NY2d 195, 203-204) that the notice of claim requirement has no relevancy to actions brought under Labor Law § 220 (8) contravenes an express statutory requirement by creating a judicially crafted exception without sufficient justification.

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

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

Order affirmed, with costs.


author: Chief Judge Kaye.

text:
    [676 NE2d 862, 654 NYS2d 100]
    In the Matter of Toys ”R” Us, a New York Limited Partnership, Respondent, v Gaston Silva, as Chairman of City of New York Board of Standards and Appeals, Appellant, et al., Respondent; Colette Coffman et al., Intervenors-Appellants.
    Argued November 20, 1996;
    decided December 20, 1996

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Janet L. Zaleon, Barry P. Schwartz and Robin Binder of counsel), for appellant.

      Bachner, Tally, Polevoy & Misher LLP, New York City (Norman Marcus of counsel), and Jack L. Lester for intervenorsappellants.

      Fischbein Badillo Wagner Harding, New York City (Richard S. Fischbein, Howard B. Hornstein, Donald N. David and Andrew B. Messite of counsel), for Toys "R” Us, respondent.

      Edward N. Costikyan, New York City, for Municipal Art Society of New York, Inc., amicus curiae.

      Gallent & Aumand, Jackson Heights (Martin Gallent of counsel), for Metro Chapter of the American Planning Association, amicus curiae.

   OPINION OF THE COURT

Chief Judge Kaye.

The New York City zoning laws prohibit continuation of a nonconforming use if, during a two-year period, "the active operation of substantially all the non-conforming uses * * * is discontinued” (New York City Zoning Resolution § 52-61). This case presents a novel question of statutory construction: what is the appropriate legal standard to determine whether a nonconforming use has been discontinued under the Zoning Resolution? Contrary to the trial court and Appellate Division, we conclude that substantial — rather than complete— discontinuation of the active, nonconforming activity forfeits the nonconforming use, and that the good faith of the owner is irrelevant to that determination.

Here, the Board of Standards and Appeals (BSA) on the facts found minimal warehouse activity following the complete stoppage of operations for 20 months, which failed to preserve nonconforming use status, and it revoked the building permit allowing petitioner to maintain a nonconforming use on the premises. Because the BSA determination was supported by substantial evidence, we reverse the trial court and Appellate Division decisions reinstating the building permit.

1. Facts

At issue here is a portion of a 16-story building located at the northeast corner of Third Avenue and East 80th Street in Manhattan. Built in 1926, the entire premises were situated in a retail zoning district and, in compliance with the certificate of occupancy and applicable zoning regulation, served as a storage and warehouse facility. When Morgan Manhattan Storage and Warehouse Company purchased the building in 1956, it continued to use the structure exclusively as a warehouse.

The 1961 New York City Zoning Resolution changed the neighborhood from a retail zoning district to residential districts overlaid with strips of commercial districts on the avenue (rather than street) blocks. As a result, that portion of the building on Third Avenue presently remains in a commercial (Cl-9) zoning district. The portion fronting on 80th Street, however, is now in a residential (R8B) zone. Because warehouse use is no longer permitted as of right in either the commercially or the residentially zoned areas (see, Zoning Resolution art II; §§ 32-00, 32-25), use of the building as a warehouse could continue under the Zoning Resolution only as a nonconforming use (see, Zoning Resolution §§ 12-10, 52-11).

Morgan continued to use the building as a warehouse until August 1989, when it contracted to sell the premises to a real estate developer. At that time, Morgan emptied the building and for the next 20 months ceased all warehouse operations. The sale fell through, and in April 1991 Morgan transferred a limited amount of goods stored in its other warehouses to the 80th Street facility and assigned a property manager there, in an effort to resume nonconforming warehouse use and thereby maintain the value of its property.

In June 1992, Chase Manhattan Bank acquired the premises from Morgan by way of deed in lieu of foreclosure. In response to a request by Chase for advice as to whether nonconforming warehouse use was permissible, the New York City Department of Buildings (DOB) issued an informal opinion that the nonconforming use at the premises had been re-established in April 1991 and could lawfully continue.

Petitioner Toys "R” Us purchased the basement, first and second floors of the building from a subsidiary of Chase in March 1994. Three months later, petitioner filed an application with DOB to convert the purchased premises into a retail toy store. DOB approved the application and in September 1994 issued a building permit authorizing the conversion.

The 38,000 square foot premises occupy both commercially and residentially zoned space. A toy store is permitted as of right in the commercially zoned portion of the premises on Third Avenue but not in the residentially zoned section fronting on 80th Street, which includes the building’s loading docks (see, Zoning Resolution art II; §§ 32-00, 32-15). The instant dispute arises out of the DOB authorization to develop and operate this latter segment of the property situated in the residential zoning district as a retail toy store — a nonconforming use.

Respondent-intervenor "Neighbors-R-Us,” a coalition of neighborhood and block associations, objected to the building permit and sought its revocation. In October 1994, DOB denied the request. Respondent-intervenor then challenged the issuance of the building permit by way of an administrative appeal to the BSA. It urged that the nonconforming warehouse use had been discontinued during the two-year period from August 1989 to July 1991 and, therefore, the Zoning Resolution only allowed the property to be developed in furtherance of a permitted use.

The BSA held public hearings during a five-month period concerning the nature and extent of warehouse operations during the period between April and July 1991 and conducted a site inspection of the building and the surrounding area.

After reviewing hundreds of pages of documents and hearing testimony from all sides, the BSA, "based on the totality of the evidence presented,’’ found the warehouse activity between April and July 1991 minimal. Concluding that the Zoning Resolution did not require complete cessation of the nonconforming use as a precondition to termination, the BSA determined that the insignificant level of warehouse activity during that period failed to perpetuate the nonconforming warehouse use. Deeming Morgan’s clear intent to resume warehouse operations insufficient to preserve the nonconforming use, the BSA revoked petitioner’s building permit.

Petitioner commenced a CPLR article 78 proceeding seeking to reinstate the permit. Supreme Court held that the storage of some goods in the warehouse during April to July 1991, coupled with the absence of any bad faith or fraud by Morgan, sufficiently continued the nonconforming use. It thus granted the petition and annulled the BSA determination, allowing petitioner to maintain a nonconforming retail use in the residentially zoned space.

The Appellate Division affirmed, one Justice dissenting. Like the trial court, the Appellate Division applied a good-faith standard and concluded that the concededly minimal storage activity from April to July 1991 sufficed to preserve nonconforming use status under the Zoning Resolution. The Appellate Division granted leave to appeal to this Court, and we now reverse.

2. Analysis

A use of property that is no longer authorized due to rezoning, but lawfully existed prior to the enactment of the existing zoning ordinance, is a nonconforming use {see, 1 Anderson’s American Law of Zoning § 6.01, at 481-482 [Young 4th ed]; see also, Zoning Resolution § 12-10). Nonconforming uses are necessarily inconsistent with the land-use pattern established by an existing zoning scheme.

Due to constitutional and fairness concerns regarding the undue financial hardship that immediate elimination of nonconforming uses would cause to property owners, however, courts and municipal legislators have adopted a "grudging tolerance” of such uses (Matter of Pelham Esplanade v Board of Trustees, 77 NY2d 66, 71). The law nevertheless generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York State and elsewhere is aimed at their reasonable restriction and eventual elimination (Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278, 284; Matter of Harbison v City of Buffalo, 4 NY2d 553, 559-560; see, 1 Anderson’s American Law of Zoning §§ 6.06, 6.69, at 500, 695 [Young 4th ed]).

This policy disfavoring nonconforming uses was expressly incorporated into New York City’s 1961 Zoning Resolution. The purposes of the Zoning Resolution were to encourage "the development of desirable residential, commercial, and manufacturing areas with appropriate groupings of compatible and related uses and thus to promote and to protect public health, safety, and general welfare” (Zoning Resolution § 51-00). Nonconforming uses, while generally allowed to continue (see, Zoning Resolution § 52-11), were considered antagonistic to those goals and thus "subject to certain limitations” (Zoning Resolution § 51-00). As explained in the Statement of Legislative Intent, "[t]he regulations governing non-conforming uses * * * are therefore adopted in order to provide a gradual remedy for existing undesirable conditions resulting from such incompatible non-conforming uses, which are detrimental to the achievement of such purposes” (id.).

One such restriction placed on the perpetuation of nonconforming uses is contained in Zoning Resolution § 52-61, which provides for the elimination of any nonconforming use that is discontinued for two years. Under section 52-61:

"If, for a continuous period of two years, * * * the active operation of substantially all the nonconforming uses in any building or other structure is discontinued, such land or building or other structure shall thereafter be used only for a conforming use. Intent to resume active operations shall not affect the foregoing” (emphasis omitted).

Whether petitioner can use the residential portion of the premises at issue here for nonconforming toy store use depends on whether its predecessor, Morgan, discontinued its nonconforming warehouse operations for two years within the meaning of section 52-61. This Court has never considered the proper legal standard for determining when a nonconforming use is abandoned under this zoning ordinance. In revoking petitioner’s building permit, the BSA construed section 52-61 as requiring substantial discontinuation, rather than complete cessation, of the nonconforming use by the property owner for two consecutive years, irrespective of any intent to preserve nonconforming use status.

The BSA, comprised of five experts in land use and planning, is the ultimate administrative authority charged with enforcing the Zoning Resolution (see, NY City Charter §§ 659, 666). Consequently, in questions relating to its expertise, the BSA’s interpretation of the statute’s terms must be "given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute” (Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545; see, Appelbaum v Deutsch, 66 NY2d 975, 977). Its determination, moreover, must be sustained if it has a rational basis and is supported by substantial evidence (see, Appelbaum v Deutsch, 66 NY2d at 977, supra; Matter of Fuhst v Foley, 45 NY2d 441, 444). Where, however, the question is one of pure legal interpretation of statutory terms, deference to the BSA is not required (see, Matter of Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35, 41-42).

Here, we must resolve two questions. First, we must determine the appropriate legal standard for abandonment under Zoning Resolution § 52-61 — a pure legal question that does not mandate deference to the BSA. We must then decide whether the BSA’s conclusion that Morgan abandoned nonconforming warehouse use was supported by substantial evidence.

(a) The Legal Standard Under Zoning Resolution § 52-61

Petitioner argues that the relevant inquiry under Zoning Resolution § 52-61 is whether nonconforming operations have completely ceased, and that any nonconforming use — however minimal — precludes a finding of abandonment. The trial court and Appellate Division majority agreed, concluding that Morgan’s use of the premises for some actual warehouse activity sufficed to preserve the nonconforming use.

According to petitioner, New York courts have uniformly required proof that the entire nonconforming use was discontinued as a precondition to termination. Petitioner points to Matter of Marzella v Munroe (69 NY2d 967) in support of this contention. In Marzella, the property owner used a parcel of land that had been rezoned to permit only one two-family structure to house four families in two dwellings. When one house remained vacant for 15 years, so that three families rather than four resided on the property, the local zoning board concluded that nonconforming use of the property for four families had been abandoned. This Court disagreed, finding insufficient evidence to establish that the entire nonconforming use had been abandoned (id., at 968).

In doing so, we explained that "[abandonment does not occur unless there has been a complete cessation of the nonconforming use” (id., at 968). Notably, however, the local zoning ordinance in Marzella broadly prohibited resumption of any "nonconforming use which has been abandoned” (see, Village of Dobbs Ferry Code § 300-8IB). The term "abandoned” was not qualified in any way; the statute therefore gave no indication that anything less than complete discontinuation of the nonconforming use would suffice to surrender it.

Similarly, in Town of Islip v P.B.S. Marina (133 AD2d 81), also relied upon by petitioner, the relevant zoning ordinance contained absolute terms, providing that "discontinuance of any non[-]conforming use for a period of one year or more terminates such non-conforming use.” The Appellate Division thus concluded that " 'discontinuance connotes a complete cessation * * * so that a minimal nonconforming function, of itself, would not constitute an abandonment’ ” (id,., quoting Baml Realty v State of New York, 35 AD2d 857). Indeed, in each of the cases cited by petitioner adopting the complete cessation standard, the statutes spoke exclusively in terms of discontinuance, failing to qualify that requirement in any way (see, e.g., Baml Realty v State of New York, 35 AD2d 857, supra; City of Binghamton v Gartell, 275 App Div 457, 459).

Unlike the statutes in these prior cases, however, Zoning Resolution § 52-61 explicitly equates abandonment with something less than discontinuation of the entire nonconforming use. Section 52-61 specifically terminates any further nonconforming use when "the active operation of substantially all the non-conforming uses * * * is discontinued” for a continuous two-year period (emphasis added). To construe this statute as requiring the property owner to discontinue all nonconforming operations — as the courts below did — simply ignores the plain language of the ordinance requiring that the owner merely cease "substantially” all of the nonconforming use. Allowing the slightest nonconforming function to preserve the nonconforming use, moreover, would eliminate the specific language requiring "active” operations to avoid termination.

The carefully chosen words of section 52-61 thus impose a standard of substantial rather than complete cessation. The language of the statute also contradicts the conclusion of both the trial court and Appellate Division that section 52-61 implicitly contains a good-faith standard, allowing nonconforming activity to continue upon a showing that a property owner, in the absence of bad faith or fraud, intended to resume nonconforming use.

Generally, abandonment of a nonconforming use requires both an intent to relinquish and some overt act or failure to act, indicating that the owner neither claims nor retains any interest in the subject matter of the abandonment (see, 1 Anderson’s American Law of Zoning § 6.65, at 678 [Young 4th ed]). In New York, however, the inclusion of a lapse period in the zoning provision removes the requirement of intent to abandon — discontinuance of nonconforming activity for the specified period constitutes an abandonment regardless of intent (see, Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657-658).

Zoning Resolution § 52-61 provides a specific lapse period— two years — thereby rendering the owner’s intent irrelevant to abandonment. Indeed, section 52-61 goes even one step further, expressly stating that "[i]ntent to resume active operations shall not affect” the determination whether a nonconforming use has been discontinued.

Notwithstanding the unique language of this particular zoning provision, petitioner urges that section 52-61 must be interpreted in its favor as the landowner. To be sure, zoning restrictions, being in derogation of common-law property rights, should be strictly construed and any ambiguity resolved in favor of the property owner (see, Matter of Allen v Adami, 39 NY2d 275, 277). Zoning Resolution § 52-61, however, is not ambiguous — its clear language prohibits additional nonconforming activity when "substantially all” of the "active” nonconforming operations are discontinued, and deems the owner’s intent irrelevant. Furthermore, public policy specifically supports termination of nonconforming uses, and the Zoning Resolution itself seeks to achieve "a gradual remedy” for "incompatible” nonconforming uses (Zoning Resolution § 51-00). As we have stated in a related context:

"It has been said in New York that a zoning ordinance must be 'strictly construed’ in favor of the property owner * * * .By way of counterpoint, however, it has been said, with equal conviction, that the courts do not hesitate to give effect to restrictions on nonconforming uses * * *. It is because these restrictions flow from a strong policy favoring the eventual elimination of nonconforming uses” (Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160, 164).

Thus, the interpretation of section 52-61 adopted by the BSA and Appellate Division dissenter — requiring only substantial, rather than complete, discontinuation to terminate a nonconforming use, regardless of the owner’s good faith — gives effect to all of the ordinance’s terms (see, Matter of Bliss v Bliss, 66 NY2d 382, 388-389 [courts must, where possible, give meaning and effect to every word of a statute]) and also comports with the policy underlying the Zoning Ordinance.

The Appellate Division’s concern that anything less than complete cessation under section 52-61 will lead to arbitrary results warrants comment. Section 52-61 imposes an objective, not subjective, standard: substantial discontinuation of active, nonconforming operations. Stated otherwise, section 52-61 terminates a nonconforming use when only minimal nonconforming activity continues. Whether this standard has been satisfied will, of course, turn on the peculiar facts of each case. All zoning cases are by their nature fact specific, and as a leading authority recognizes, the right to a nonconforming use must necessarily be decided "on a case-by-case basis” (1 Anderson’s American Law of Zoning § 6.23, at 553 [Young 4th ed]). Certainly, the DOB and BSA, comprised of qualified experts, are capable of making these determinations.

(b) Application of the Legal Standard to the Facts

It is undisputed that Morgan’s warehouse use from 1961 to August 1989 was permitted as a nonconforming use, and that Morgan completely ceased all nonconforming warehouse operations for 20 months between August 1989 and April 1991. The only question before the courts below and this Court is whether Morgan’s warehouse activity during the four-month period from April to July 1991 sufficed to preserve nonconforming use status under Zoning Resolution § 52-61. If not, petitioner is prohibited from operating a nonconforming retail toy store in the residentially zoned portion of the subject premises. Either way, of course, petitioner’s store may be developed in that segment of the property situated in a commercial zoning district, where a toy store is permitted as of right.

The BSA’s determination that Morgan substantially discontinued nonconforming warehouse use of the property for 24 months must be confirmed if it has a rational basis and is supported by substantial evidence (Matter of Cowan v Kern, 41 NY2d 591, 598). And where substantial evidence exists, a reviewing court may not substitute its judgment for that of the BSA — even if the court might have decided the matter differently (Matter of Cowan v Kern, 41 NY2d at 599, supra; Matter of Collins v Codd, 38 NY2d 269, 270). In reaching its conclusion, moreover, the BSA had de novo review power and was not bound by the findings of the DOB (see, Zoning Resolution § 72-11).

The BSA’s review of warehouse logs for the contested four-month period revealed only eight customer accounts, compared to the 1,500 accounts previously maintained by the company. It further revealed that approximately 19 crates were shipped to the warehouse at that time, which would have occupied only one-tenth of one percent of the entire volume of the building. This extremely low level of activity was corroborated by testimony of the following: an Enviropact employee who, after examining every lobby floor and 75% of the storage lockers, saw only 12 to 15 crates and a few cardboard files; a Chase loan officer who walked through the building and observed about 20 large storage crates; various neighborhood residents who noticed that the building was vacant and unused; and a local real estate agent who found the warehouse to be completely empty, unheated, unlit and infested with pigeons. Based on this evidence, the BSA rejected the testimony of Morgan’s president, Jeffrey Morgan, that five percent of the building was used to maintain 40 to 50 customer accounts from April to July 1991.

The BSA’s conclusion, however, was premised on more than the drastic reduction in the volume of storage activity. The BSA specifically noted the absence of any standard evidence for the critical four-month period typically available to document a legitimate business operation, such as insurance records, tax documents, advertisements, liability coverage, customer records, employee records, certain directory listings, telephone records or sales receipts. Jeffrey Morgan even acknowledged that the company failed to renew the requisite Department of Consumer Affairs license after it expired in April 1991.

The BSA thus properly considered objective factors regarding the nature and degree of nonconforming warehouse use, and its determination that Morgan’s level of warehouse operations from April to July 1991 was too insignificant to preserve nonconforming use status under section 52-61 was supported by substantial evidence. That conflicting inferences may have been drawn from this evidence is of no moment. "[T]he duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists” (Matter of Stork Rest. v Boland, 282 NY 256, 267).

Finally, petitioner’s contention that the BSA departed from its own precedent is unavailing. In Matter of 4702/4712 Clarendon Rd., Brooklyn (BSA Resolution, Mar. 23, 1993), the question was also whether nonconforming commercial operations were abandoned under Zoning Resolution § 52-61. After reviewing various business records attesting to the continuous commercial use of the property, the BSA determined that the active operation of substantially all the nonconforming use at the premises had not been discontinued for two years. In reaching the opposite conclusion here, the BSA noted the failure to produce similar business documents. Clarendon, therefore, is not inconsistent with the instant case.

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

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

Order reversed, etc.

      . Tellingly, the drafters of section 52-61 rejected a proposed termination provision that omitted the qualifying language "substantially all.” In a Zoning Resolution submitted to the City Planning Commission pursuant to a contract with the City of New York, a special planning staff of architects suggested the following regarding termination of nonconforming uses: "If a non-conforming use discontinues active or continuous operations for a continuous period of one year, the building or other structure or tract of land where such non-conforming use previously existed shall thereafter be occupied and used only for a conforming use. Intent to resume active operations shall not affect the foregoing” (Voorhees, Walker, Smith and Smith, Report to NY City Planning Commn, Proposed Zoning Resolution § 51-31 [Aug. 1958] [emphasis added]).

      . Petitioner alternatively urges that, because section 52-61 refers to discontinuation of "substantially all the non-conforming uses” — emphasizing the plural "uses” — discontinuation should be measured by whether a majority of the number of nonconforming uses is maintained, regardless of the level of activity devoted to each use. Petitioner, however, overlooks the basic rule of statutory construction that "[wjords in the singular number include the plural, and in the plural number include the singular” (General Construction Law § 35).


text:
    [676 NE2d 1178, 654 NYS2d 335]
    James Dunham, Appellant, v Hilco Construction Company, Inc., Respondent, et al., Defendants. (And Two Third-Party Actions.)
    Submitted November 14, 1996;
    decided December 19, 1996

      POINTS OF COUNSEL

      Steven Wildstein, Greak Neck, for appellant.

      Ahmuty Demers & McManus, Albertson (Frederick B. Simpson of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

This personal injury action calls upon us to define the extent to which a court can search the record pursuant to CPLR 3212 (b) and award summary judgment to a nonmoving party. Here, by itself granting defendant summary judgment on an issue that was not presented in the motion papers, the Appellate Division exceeded its statutory power. We therefore reverse the Appellate Division’s dismissal of plaintiff’s negligence claim and remit the matter to the trial court for further proceedings.

According to the complaint, on March 31, 1989, plaintiff, an employee of subcontractor Louis Calhoun, was working at a construction site in Queens. Plaintiff began unloading a concrete reinforcement bar (rebar) with an employee of Hilco Construction Company, another subcontractor. As the Hilco employee — who was standing — lifted his end of the 15-foot-long rebar, plaintiff, then in a squatting position, grasped his end and started to stand. The Hilco employee suddenly "snatched” the rebar, causing plaintiff to lose his balance, stumble to his knees and injure his back.

Plaintiff commenced a damages action against a number of parties — Marc, Howard, Joel and Maxine Beige, the premises owners; Salk Construction Corporation, the general contractor; and Hilco — on a common-law negligence theory. Salk and Hilco impleaded Calhoun. Plaintiff then amended his complaint, asserting one cause of action against Salk and Hilco for negligence on the part of their employees, and a second against the Beiges and Salk for common-law negligence and associated violations of Labor Law §§ 200, 240 and 241 (6). Salk sought summary judgment, and the Beiges and Calhoun each cross-moved for summary judgment. Neither Hilco nor plaintiff asked for summary judgment.

On consent of plaintiff, the trial court dismissed the complaint as to Salk and the Beiges under Labor Law §§ 200 and 240, but it denied summary judgment on plaintiff’s Labor Law § 241 (6) claim finding triable issues of fact. The court also denied Calhoun’s motion for summary judgment on the third-party complaints. Urging that Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494) (decided after the trial court’s order) changed the law with regard to plaintiff’s Labor Law § 241 (6) claim, Salk and Calhoun moved to renew or reargue. The trial court granted reargument but, upon reargument, adhered to its determination.

On appeal by Salk and Calhoun, the Appellate Division reversed, dismissed the actions against them, and on searching the record also dismissed the complaint against the Beiges and Hilco. The court stated that "because the plaintiff previously consented to the dismissal of his causes of action under Labor Law § 200 and because Labor Law § 200 is merely a codification of an owner’s and general contractor’s common-law duty to provide workers with a safe place to work * * * the plaintiff’s common-law negligence cause of action as against all the defendants should * * * be dismissed” (221 AD2d 586, 587).

Plaintiff contends that the Appellate Division erred in dismissing his common-law negligence claim against Hilco. He urges that the Appellate Division wrongly construed his consent to dismissal of his Labor Law § 200 claims against the Beiges and Salk as an abrogation of his common-law negligence claim against Hilco. By doing so, asserts plaintiff, the Appellate Division inappropriately granted summary judgment to Hilco, a nonmovant, on an issue not addressed in the motion papers. We agree.

As plaintiff argues, consent to dismissal of the Labor Law § 200 claims against the Beiges and Salk did not foreclose a common-law negligence claim against Hilco.

Labor Law § 200 essentially "codifies landowners’ and general contractors’ common-law duty to maintain a safe workplace” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505). When, after depositions, it became apparent that plaintiff’s Labor Law § 200 claims against the Beiges and Salk lacked merit, plaintiff consented to a dismissal of those statutory claims. In that plaintiff’s negligence claims against those parties were predicated on the same theory — that they had failed to provide plaintiff with a safe workplace — those common-law claims were also dismissed.

Plaintiff’s theory of liability as to Hilco, however, was different. Plaintiff’s claim against Hilco was based on the negligence of its employee, attributable to Hilco under the doctrine of respondeat superior. Consent to dismissal of the Labor Law § 200 claim against the Beiges and Salk therefore did not also carry with it plaintiff’s common-law claim against Hilco.

We agree with plaintiff, moreover, that the Appellate Division lacked authority to award Hilco, a nonmovant, summary judgment on an issue not presented by the motions.

Resolution of this issue turns on our reading of CPLR 3212 (b), which states that if "it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” As we held in Merritt Hill Vineyards v Windy Hgts. Vineyard (61 NY2d 106), the Appellate Division has the authority to grant summary judgment in favor of a nonmoving party even in the absence of a cross appeal by that party. That reading of CPLR 3212 (b) is consistent with the laudatory purposes of summary judgment, which promotes efficient case resolution.

The Appellate Division’s power to search the record and afford a nonmoving party summary relief is not, however, boundless (see generally, Siegel, NY Prac § 282, at 412 [2d ed]; 4 Weinstein-Korn-Miller, NY Civ Prac 3212.08, at 32-187 to 32-189). Recognizing that "[a] motion for summary judgment must be addressed to one or more specific causes of action or defenses” (Conroy v Swartout, 135 AD2d 945, 947), the Appellate Divisions have uniformly held that a court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court (see, e.g., Frank v City of New York, 211 AD2d 478, 479 [1st Dept]; Mercedes-Benz Credit Corp. v Dintino, 198 AD2d 901, 902 [4th Dept]; Marshall v New York City Health & Hosps. Corp., 186 AD2d 542, 543-544 [2d Dept]; Conroy v Swartout, supra [3d Dept]).

The need for such a limitation is obvious. Apart from considerations of simple fairness, allowing a summary judgment motion by any party to bring up for review every claim and defense asserted by every other party would be tantamount to shifting the well-accepted burden of proof on summary judgment motions (see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967-968 [a moving party must assert some basis in support of its summary judgment motion before an opposing party has the burden of producing contrary evidence]). In light of the good sense underlying the unanimous support in the Appellate Divisions for a restriction on a court’s power to award summary judgment in favor of a nonmoving party on an issue unaddressed in the summary judgment motions, we adopt that limitation as our own.

Here, the record demonstrates that the Labor Law and associated negligence claims were litigated on the motions for summary judgment by the Beiges, Salk and Calhoun. The question whether Salk and Calhoun could be held liable under common law for the acts of subcontractor Hilco’s employee was also addressed. However, the issue regarding Hilco’s common-law liability arising from the alleged negligence of its employee was not before the court, and should therefore not have precipitated summary dismissal of the complaint.

Accordingly, the Appellate Division’s order, insofar as appealed from, should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with the opinion herein.

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

Order, insofar as appealed from, reversed, etc.


text:
    [677 NE2d 276, 654 NYS2d 705]
    In the Matter of Kerrie L. Haggerty, on Behalf of Herself and Others, et al., Respondents, v Larry M. Himelein, as Cattaraugus County Court Judge, Respondent, and Michael P. Nevins, as Cattaraugus County District Attorney, et al., Appellants.
    Argued January 8, 1997;
    decided February 6, 1997

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, New York City (Edward D. Saslaw, Christine Duisin and Jill Gross Marks of counsel), for Dennis C. Vacco and another, appellants pro se.

      Michael P. Nevins, District Attorney of Cattaraugus County, Little Valley, appellant pro se.

      Joel L. Daniels, Buffalo, and Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, Buffalo (Cheryl Meyers of counsel), for respondents.

      Francis D. Phillips, II, Goshen, David J. Fried, Brooklyn, and Michael Gore for New York State District Attorneys Association, amicus curiae.

   OPINION OF THE COURT

Levine, J.

Kevin King died October 23, 1994 during what eyewitnesses described as a mob attack outside a pizzeria in the City of Olean, Cattaraugus County. The matter was submitted to a Grand Jury by the Cattaraugus County District Attorney. Some four months after the occurrence, the Grand Jury returned a no true bill. The Grand Jury’s failure to indict the persons allegedly involved in King’s death evoked a bitter public protest by the victim’s family that the case had been mishandled. The ensuing local community outcry prompted a resolution of the County Legislature, endorsed by the District Attorney, requesting the assistance of the State Attorney-General.

The Attorney-General accepted the invitation to assist in the King matter. On that basis, he and four Assistant Attorneys-General were appointed by the District Attorney as Assistant District Attorneys for Cattaraugus County. One of those assistants then prepared and submitted, in his capacity as an Assistant District Attorney, an application for permission to represent the matter to another Grand Jury pursuant to CPL 190.75 (3). After respondent Larry M. Himelein, Cattaraugus County Judge, granted the application, the King fatality was again presented to a Grand Jury by one of the newly appointed prosecutors from the Attorney-General’s staff. The Grand Jury handed up a 42-count indictment charging petitioners with various offenses against King, including depraved mind murder, manslaughter, criminally negligent homicide and first and second degree assaults.

In addition to moving to dismiss the indictment in the criminal action in County Court, petitioners brought this CPLR article 78 proceeding before the Appellate Division seeking a writ of prohibition against respondents. The gravamen of their claim is that, in the absence of an Executive Order of superseder issued by the Governor pursuant to Executive Law § 63 (2), the Attorney-General and his staff were and remain without jurisdictional authority to assume any prosecutorial role in this local criminal matter. The relief requested was an order enjoining the County Judge and District Attorney, as well as the Attorney-General and members of his staff, from proceeding further in prosecuting the case, and dismissing the indictment.

The Appellate Division agreed with petitioners that the sole basis for the Attorney-General’s office to intervene in this criminal prosecution was by superseder ordered by the Governor pursuant to Executive Law § 63 (2) (221 AD2d 138). The Court concluded that the absence of an Executive Order was a fatal jurisdictional defect preventing all respondents from proceeding to trial on the indictment. Accordingly, the Appellate Division granted the petition in all respects, except for the request to dismiss the indictment — a matter found to be not properly before that Court (id.). We granted the motions of the Attorney-General and District Attorney for leave to appeal, and now reverse.

As this Court recently reiterated in Matter of Pirro v Angiolillo (89 NY2d 351, 355, 356), the extraordinary remedy of prohibition is only available to prevent a judicial or quasi-judicial body or officer from proceeding or threatening to proceed without or in excess of its jurisdiction, and then only if a clear legal right to that relief has been established. Prohibition may lie against a prosecutor (as well as against a court) in performing the quasi-judicial role of "representing] the public in bringing those accused of crime to justice” (Matter of Schumer v Holtzman, 60 NY2d 46, 51; see also, Matter of Forte v Supreme Ct. of State of N. Y., 48 NY2d 179, 185; Matter of Dondi v Jones, 40 NY2d 8, 13). Prohibition may also be available against the Attorney-General when exercising or threatening to exercise an ultra vires prosecutorial function (see, Matter of B. T. Prods. v Barr, 44 NY2d 226).

We have held that the Attorney-General’s prosecutorial authority is strictly limited to the specific statutory grants of such authority (see, Della Pietra v State of New York, 71 NY2d 792, 796-797). Nonetheless, petitioners have failed to establish here that the Attorney-General or his staff have acted or threatened to act without or in excess of duly prescribed jurisdiction. Indeed, the essential deficiency in petitioners’ proof is the absence of any evidence that the Attorney-General was purporting to exercise the prosecutorial authority of that office in the instant case.

As is plainly provided in Executive Law § 63 (2), in those instances when the Attorney-General exercises prescribed superseder authority to assume the prosecutorial function, that office then acquires "all the powers and perform[s] all the duties in respect of such actions or proceedings [before a court or Grand Jury], which the district attorney would otherwise be authorized or required to exercise or perform.” Similar language is contained in most other provisions granting the Attorney-General prosecutorial authority over specific categories of criminal offenses, with or without direction from the Governor (see, e.g., Executive Law § 70-a [7]; ECL 71-2105 [4]; General Business Law §§ 358, 692; Real Property Law § 442-e [2]; § 446-h [2]).

Had the Attorney-General’s office asserted authority in this local criminal matter to "exercise all the powers and perform all the duties * * * which the district attorney would otherwise be authorized or required to exercise or perform,” the absence of an Executive Order would have rendered the intervention jurisdictionally defective, even if requested and agreed to by the District Attorney. As we explained in Matter of Schumer v Holtzman (supra), the essence of a District Attorney’s constitutional, statutory and common-law prosecutorial authority is the "discretionary power to determine whom, whether and how to prosecute [a criminal] matter” (60 NY2d, at 52), the responsibility and accountability for which is not freely transferable to anyone else, and that includes the Attorney-General.

The record in this case does not show any transfer of the fundamental and ultimate responsibility of the Cattaraugus District Attorney to the Attorney-General or his Assistant Attorneys-General. To the contrary, the uncontradicted sworn statements of the District Attorney and the Chief of the Attorney-General’s Criminal Prosecutions Bureau bespeak a clear understanding by all parties that the District Attorney retained the ultimate prosecutorial authority involving the King homicide. Moreover, the record is devoid of any proof of any appearance by the Attorney-General in any of the criminal proceedings in this case, either personally or on his behalf. Nor is there any evidence of his intention to personally participate in the prosecution as the case progresses to its final disposition.

Thus, the record in this prohibition proceeding is devoid of any evidentiary refutation of the sworn ássertion that the Attorney-General had "simply agreed to assist the district attorney by furnishing Assistant Attorneys-General to work with him and under his direction.”

Moreover, petitioners have pointed to no provision of law, nor have we found any in our research, prohibiting the Attorney-General from providing the services of Assistant Attorneys-General to aid a county District Attorney in the prosecution of a criminal matter {compare, Executive Law § 63-d). Nor have we been shown any jurisdictional bar to the appointment of a member of the Attorney-General’s staff as an Assistant District Attorney to perform prosecutorial duties under the direction of the District Attorney.

As noted, the Attorney-General has not personally appeared or otherwise acted pursuant to his appointment as an Assistant District Attorney in this case, or evinced any intention to personally participate in the prosecution of the indictment. Thus, we are not called upon to answer the separate question, of first impression, whether, because of the very nature of the Attorney-General’s position as a State-wide constitutional officer, such officer should be prohibited by implication from exercising the incongruous position of a subordinate prosecuting officer under the direction and control of a local District Attorney. To whatever extent this feature of the case may have jurisdictional implications, petitioners have failed to show that the Attorney-General personally has proceeded or threatened to proceed in violation of a clear legal bar in that manner (cf., Matter of Schumer v Holtzman, 60 NY2d, at 51, supra).

Accordingly, the judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

Chief Judge Kaye and Judges Bellacosa, Smith and Ciparick concur; Judges Titone and Wesley taking no part.

Judgment reversed, etc.

       To the extent that the appointments to the position of Assistant District Attorney, Cattaraugus County here may implicate residency requirements of Public Officers Law § 3 (1), we have previously held that such eligibility features are not jurisdictional in nature (see, People v Dunbar, 53 NY2d 868, 871; see also, People v Carter, 77 NY2d 95, 103).