text:
    Harry A. Gair et al., Respondents, v. David W. Peck et al., Individually and as Justices of the Appellate Division of the Supreme Court of the State of New York in and for the First Judicial Department, Appellants.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Respondents contended that the promulgation and threatened enforcement of rule 4 of the Special Rules of the Appellate Division, First Judicial Department, of the Supreme Court of the State of New York deprived and continue to deprive respondents of liberty and property without due process of law and denied and continue to deny respondents the equal protection of the laws, all in violation of the Fourteenth Amendment of the Constitution of the United States. The Court of Appeals held that there was no such deprivation or denial. [See 6 N Y 2d 97.]


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Board of Education of Union Free School District No. 3 of the Town of Oyster Bay, Nassau County, et al., Appellants, against James E. Allen, Jr., as Commissioner of Education of the State of New York, Respondent.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will he amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Appellants contended that section 1801 of the Education Law was unconstitutional in that it allegedly deprived taxpayers of their property without due process of law in violation of the Fourteenth Amendment. The Court of Appeals held that said section was constitutional and that appellants’ constitutional rights were not violated. [See 6 N Y 2d 871.]


text:
    Howard Gooch, Appellant, v. Ronald Shapiro et al., Respondents. (Action No. 1.) Jane Holinko et al., Appellants, v. Ronald Shapiro, Respondent. (Action No. 2.) Adam Orzuchowski, Appellant, v. Ronald Shapiro, Respondent. (Action No. 3.)
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion by appellant Gooch for leave to prosecute appeal as a poor person and for assignment of counsel granted and Irving Nitzberg, Esq., of 1440 Broadway, New York City, assigned as counsel to appellant on the appeal herein.

Motion by appellants Holinko to have their appeal heard upon seven copies of the record before the Appellate Division and to dispense with the printing of certain exhibits granted.


text:
    In the Matter of Emanuel J. Payton, Appellant, against New York City Transit Authority, Respondent.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to have appeal heard upon the original record and legible typewritten briefs granted.


text:
    The People of the State of New York, Respondent, v. Anthony S. Bai, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.

Motion to have appeal heard upon one legible typewritten copy of the record below and legible typewritten briefs granted.


text:
    The People of the State of New York, Appellant, v. Herman Christ, Respondent.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Thomas G. Daniel, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to amend remittitur granted. Return of remittitur, requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there, was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Whether the admission in evidence of statements made by defendant of an incriminatory nature violated the rights of defendant under the Fourteenth Amendment. The Court of Appeals held that the statements were properly received in evidence and that defendant’s constitutional rights were not violated. [See 6 N Y 2d 821.]


text:
    The People of the State of New York, Respondent, v. Carmine Di Biase, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals,


text:
    The People of the State of New York, Respondent, v. Frank Costello, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States as follows: Appellant contended that he was deprived of his liberty without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States in that (1) he was required to answer questions despite his claim that he was subject to investigation by Federal authorities and was entitled to claim his privilege against self incrimination as guaranteed by the Fifth Amendment; and (2) that he was required to answer questions with respect to a paper illegally seized by the police in violation of his rights under the Fourth Amendment. The Court of Appeals held that there was no such deprivation of his liberty. [See 6 N Y 2d 761.]


text:
    The People of the State of New York, Respondent, v. Henry Flakes and Walter T. Green, Appellants.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motions for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Albert Grossman, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Ira Kaplan, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Abe Linzer and Aaron Linzer, Appellants.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion by appellant Aaron Linzer for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.

Motion by appellant Aaron Linzer to have appeal heard upon the original record granted.


text:
    The People of the State of New York, Respondent, v. Raymon Lopez, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Daniel John Mancini and Robert Ralph Romano, Appellants.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motions to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there were presented and necessarily passed upon questions under the Constitution of the United States, viz.: Defendants contended that (1) the admission into evidence of a .45 automatic, which was not mentioned in the indictment of this case, deprived them of a fair trial; (2) the attempt of the prosecutor to establish that defendants were bound to produce alibi witnesses named in their bill of particulars deprived them of a fair trial; (3) the admission of a statement made before arraignment and claimed to have been made under duress deprived them of a fair trial, and (4) testimony concerning a conviction in another robbery case, which was reversed after this conviction, was instrumental in obtaining the conviction herein and thus deprived them of a fair trial in violation of their constitutional rights. The Court of Appeals held that appellants were not denied due process under the Fourteenth Amendment. [See 6 N Y 2d 853.]


text:
    The People of the State of New York, Respondent, v. Frederick Foss McElroy, Appellant.
    Submitted May 25, 1959;
    decided July 8, 1959.
   Application for assignment of counsel granted and Robert H. Jones, III, Esq., of 90 State Street, Albany 7, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v. Benjamin Englese, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to have appeal heard upon the original record and legible typewritten briefs granted.

Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Marvin Pariser, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and Miss Florence M. Kelley of 100 Centre Street, New York City, assigned as counsel to appellant on the appeal herein.

Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Herbert Peetz, Jr., Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. George Perez and John Mangi, Appellants.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Walter Raymond Smart, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for enlargement of time granted and case set down for argument during the October, 1959 session of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Pablo Vargas, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Application for assignment of counsel granted and Arthur H. Schwartz, Esq., of 19 East 70th Street, New York City, and Thomas F. Grimes, Esq., of 16 Court Street, Brooklyn, New York, assigned as counsel to appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Charles Stephen St. Andrews, Appellant, against Walter B. Martin, as Warden of Attica Prison, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to have appeal heard upon the original record and for assignment of counsel granted and William H. Emerson, Esq., of Rochester, New York, assigned as counsel to appellant on the appeal herein.


text:
    Ritchie Construction Co., Inc., Appellant-Respondent, v. Max E. Hoffman, Respondent-Appellant, and Wood Sanitation Co., Inc., et al., Respondents, et al., Defendants.
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion to have appeal heard upon seven copies of the record before the Appellate Division together with the required number of copies of printed additional papers and printed briefs granted.


text:
    George Zarillo, Individually and as Guardian ad Litem of Margaret Zarillo, an Infant, Appellants, v. State of New York, Respondent.
    (Claim No. 33339.)
    Submitted July 6, 1959;
    decided July 8, 1959.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted and Irving A. Scheinberg, Esq., of 66 Court Street, Brooklyn, New York, assigned as counsel to appellants on the appeal herein.


text:
    In the Matter of Oswego Transportation Lines, Inc., Appellant, against Benjamin F. Feinberg et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Submitted May 25, 1959;
    decided July 8, 1959.

      Kent H. Brown for motion.
    No one opposed.
   Motion granted and appeal dismissed upon the ground that no substantial constitutional question is presented.


text:
    The People of the State of New York, Respondent, v. Leonard J. Lo Verde, Appellant.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Julian Hanley, District Attorney, for motion.

      Charles J. McDonough opposed.
   Motion denied.


text:
    Marjorie Cromer, as Administratrix of the Estate of Philip Cromer, Deceased, Appellant, v. Andrew Gull Corporation et al., Respondents.
    Argued May 18, 1959;
    decided July 8, 1959.

      Alfred S. Julien, Benjamin H. Siff and Sidney B. Siben for motion.

      Lillian E. Guff and Hobart B. Marvin opposed.
   Application granted and appeal dismissed, with $20 costs and necessary printing disbursements. •


text:
    Emil Morton et al., Appellants, v. State of New York, Respondent.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Louis J. Lefkowitz, Attorney-General (Julius L. Sackman of counsel), for motion,

      Bernard L. Bermant opposed.
   Motion granted and appeal dismissed upon the ground that no substantial constitutional question is presented.


text:
    Public Administrator of the County of New York, as Administrator of the Estate of George H. Pierre, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 30337.)
    Submitted July 6, 1959;
    decided July 8, 1959.

      Louis J. Lefkoivitz, Attorney-General (Jerome Lefkowitz of counsel), for motion.
    No one opposed.
   Motion denied.


text:
    Angela Zappala, Appellant, v. Upwood Realty Corp., et al., Respondents.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Thomas F. Cohalan and John J. Gallione for motion.
    No one opposed.
   Motion granted; but see Cohen and Karger, Powers of the New York Court of Appeals, pages 588 and 590.


text:
    Irving Arnold, Respondent, v. National Plastikwear Fashions, Inc., et al., Defendants, and Harry I. Green et al., Appellants.
    Submitted May 11, 1959;
    decided July 8, 1959.

      Edwin W. Tucker for motion.

      Nathan W. Shapiro and Morris B. Gerstenhaber opposed.
   Motion denied. On the court’s own motion, appeal dismissed upon the ground that no appeal lies as of right from the orders of the Appellate Division (Civ. Prac. Act, § 588, subd. 1, par. [a]).


text:
    Nathan Baidach, Respondent, v. Charles A. Togut, Doing Business as Linden General Hospital, Appellant, et al., Defendants.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Stanley Tessel and Bernard Turkewits for motion.

      Caspar B. Ughetta, William C. Mattison and Mario Matthew Cuomo opposed.
   Motion denied.


text:
    Metallic Flowers, Inc., Appellant, v. City of New York et al., Respondents.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Botris M. Komar for motion.

      Charles H. Tenney, Corporation Counsel (Alfred Weinstein of counsel), opposed.
   Motion denied (see Betzag v. Gulf Oil Corp., 300 N. Y. 576; Lipton v. Bruce, 4 N Y 2d 870, 975; Erbe v. Lincoln Rochester Trust Co., 4 N Y 2d 921, 5 N Y 2d 886).


text:
    William C. Oursler et al., Respondents, v. April O. Armstrong et al., Individually and as Executors of Grace Oursler, Deceased, et al., Appellants.
    Submitted July 6, 1959;
    decided July 8, 1959.

      Irving Brown, H. Donald Sills and Karl S. Lowenthal for motion to dismiss appeal and opposed to motion for stay.

      Woodson D. Scott opposed to motion to dismiss appeal and for motion for stay.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion for a stay denied,


text:
    In the Matter of Theresa Quinn et al., Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, Respondents, and Louis S. Upshur et al., Appellants.
    Argued September 11, 1959;
    decided September 11, 1959.

      Mary Johnson Lowe and George M. Fleary for appellants.

      Abraham J. Gellinoff, Philip Zichello, Robert B. Brady, Nelson Kantor and Blossom G. Saxe for respondents.
   Order affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Froessel, Foster, Bookstein and MacApper.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Judges Fuld, Van Voorhis and Burke.


text:
    In the Matter of Bernard M. Bloom et al., Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Manuel J. Steinberg et al., Appellants.
    Argued September 11, 1959;
    decided September 11, 1959.

      Norman J. Steinberg and Lewis Abrahams for appellants.

      Harold L. Fisher for petitioners-respondents.
   Order affirmed; no opinion.

Concur: Chief Judge Conway and Judges Desmond, Dye, Froessel, Foster, Bookstein and MacAfeer.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Judges Fuld, Van Voorhis and Burke.


author: Meyer, J.

text:
    In the Matter of the Liquidation of Consolidated Mutual Insurance Company. Arcade Cleaning Contractors, Inc., Appellant; Superintendent of Insurance, as Liquidator of Consolidated Mutual Insurance Company, Respondent.
    Argued May 31, 1983;
    decided June 30, 1983

      POINTS OF COUNSEL

      Robert Long, Theodore M. Wolkof and Jack J. Albert for appellant.
    I. Arcade’s general liability policy which contained a contractual indemnity provision is not a policy of subdivision 15 of section 46 of the Insurance Law; that section applies only to policies which insure employers against direct claims by employees. (Buckley v City of New York, 56 NY2d 300; Payne v New York, Susquehanna & Western R.R. Co., 201 NY 436; Kleps v Bristol Mfg. Co., 189 NY 516; Whispell v Millman, 18 AD2d 751; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Insurance Co. of North Amer. v Dayton Tool & Die Works, 57 NY2d 489; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, 52 NY2d 701; Rankin v Shanker, 23 NY2d 111; Civil Serv. Employees Assn. v County of Oneida, 78 AD2d 1004.) II. Special Term was not required to accept the administrative determination of the Superintendent of Insurance in contravention of statute. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Regan v Crime Victims Compensation Bd., 57 NY2d 190.)

      Herbert Rubin, William F. Jerome, Edward L. Birnbaum and David B. Hamm for respondent.
    I. The inclusion within subdivision 15 of section 46 of the Insurance Law of contractual indemnification liability of an employer for injuries to his employees (the type of insurance involved herein), comports with the plain words of that subdivision and the design and purpose of the statute as a whole; since it is included within subdivision 15 of section 46, it is excluded from subdivision 2 of section 334 of the Insurance Law and thus is not payable from the Security Fund. (Matter of Professional Ins. Co. of N. Y. [Superintendent of Ins. of State of N. Y.], 67 AD2d 850,49 NY2d 716; Matter of Allcity Ins. Co. [Kondak], 66 AD2d 531; Matter of Interstate Ins. Co. [Murphy Pacific Mar. Salvage Corp. (Merritt Div.)], 47 NY2d 909; Fitzgerald v Sanitation Dist. No. 6 of Town of Hempstead, 116 Misc 2d 325; Meltzer v Koenigsberg, 302 NY 523; Quevedo v City of New York, 56 NY2d 150; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551.) II. Appellant’s contentions are palpably unsupported. (Rood v Nelson, 14 Misc 2d 859; London Guar. & Acc. Co. v Marine Repair Corp., 120 Misc 596; Cardinal v State of New York, 304 NY 400; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 58 AD2d 397, 45 NY2d 551; Insurance Co. of North Amer. v Dayton Tool & Die Works, 57 NY2d 489; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; 67 Wall Co. v Franklin Nat. Bank, 37 NY2d 245.) III. Inasmuch as the superintendent’s interpretation of subdivision 15 of section 46 of the Insurance Law was neither “irrational” nor “unreasonable”, it was properly confirmed by the court below. (Ostrer v Schenck, 41 NY2d 782; Breen v Cunard Lines, S. S. Co., 33 NY2d 508; Matter of Howard v Wyman, 28 NY2d 434; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Matter of Professional Ins. Co. of N. Y. [Superintendent of Ins. of State of N.Y.], 67 AD2d 850; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)

      Joseph F. Donley and Lawrence G. Goodman for Millar Elevator Industries, Inc., amicus curiae.

    I. The legislative history of section 334 of the Insurance Law indisputably demonstrates that the Security Fund was created to cover all types of property and liability insurance. (Dutchess & Columbia Coop. Ins. Co. v State of New York, 81 Misc 2d 402, 43 AD2d 769, 36 NY2d 835.) II. The texts of sections 334 and 46 of the Insurance Law indicate that coverage is appropriate in Arcade’s case. III. Dole v Dow Chem. Co. (30 NY2d 143) and its progeny hold that claims for contribution and indemnification form separate and distinct bases of liability. (Dole v Dow Chem. Co., 30 NY2d 143; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Insurance Co. of North Amer. v Dayton Tool & Die Works, 57 NY2d 489; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136.) IV. The superintendent’s views on section 334 of the Insurance Law are not entitled to deference. (Matter of Surdi v Premium Coal & Oil Co., 52 NY2d 860; Servomation Corp. v State Tax Comm., 51 NY2d 608; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)
   OPINION OF THE COURT

Meyer, J.

The determination of the Superintendent of Insurance that the Security Fund established by section 334 of the Insurance Law does not cover an insured’s claim against its insolvent liability insurer resulting from the insured’s contractual or common-law liability to indemnify a third party held responsible for injury to the insured’s employee is neither contrary to the clear wording of the Insurance Law nor unreasonable. The Appellate Division’s order, which upheld the superintendent’s determination, should, therefore, be affirmed.

I

Claimant Arcade Cleaning Contractors, Inc. (Arcade), contracted with the New York Daily News Syndicate (Daily News) to perform cleaning work. Under the contract Arcade obligated itself to indemnify the Daily News against liability “on account of injury to persons * * * arising out of, or in any manner connected with, the performance of this Contract” including injury to an Arcade employee.

Jeanne Gerard, an Arcade employee, sued the Daily News for injuries allegedly sustained in an elevator on its premises in the course of her employment with Arcade. The Daily News claimed over against Arcade, seeking indemnification based on both the contract clause and common-law principles. Arcade carried general liability insurance with Consolidated Mutual Insurance Company (Consolidated) under a policy which covered both the contractual and common-law indemnification claims. Its workers’ compensation coverage was with the State Insurance Fund.

Consolidated undertook the defense of the third-party claim over on behalf of Arcade, but in May, 1979, was placed in liquidation by the Superintendent of Insurance. Defense of the claim over was thereafter provided by the Insurance Department’s Liquidation Bureau, but Arcade was notified that the New York State Property and Liability Insurance Security Fund (Security Fund) was not empowered to pay any judgment that might eventuate against Arcade on the claim over.

In January, 1981, the Gerard action was settled for $2,500 of which $1,000 was to be paid by the Daily News and $1,500 by Arcade, without prejudice, however, to Arcade’s claim against the Security Fund for reimbursement of its $1,500 payment. Supreme Court, Kings County, in which the Consolidated liquidation proceeding had been brought, referred Arcade’s claim to a referee, who concluded that the claim was not covered by the Security Fund and recommended its disallowance. Supreme Court, however, on the superintendent’s motion to confirm, reasoning that only a direct compensation claim and not a third-party indemnification claim was outside the scope of section 334 of the Insurance Law, denied the motion and allowed the claim. The Appellate Division reversed in turn.

II

Section 334, which established the Security Fund for use in paying property and liability claims remaining unpaid by reason of the insurer’s insolvency, details in subdivision 2 the kinds of claims payable from the fund. Of importance to the determination of the present controversy is that clause (a) of paragraph (ii) includes insurance specified in subdivision 13 but not that specified in subdivision 15 of section 46 of the Insurance Law. Subdivision 13’s definition* * of personal injury liability insurance as “insurance against legal liability * * * arising out of the death or injury of any person” is clearly broad enough to include a claim over for contribution or indemnification, but expressly excludes “any kind of insurance specified in subdivision fifteen.” However, subdivision 15, which defines “workmen’s compensation and employer’s liability insurance” to mean “insurance against the legal liability, whether imposed by common law or by statute or assumed by contract, of any employer for the death or disablement of, or injury to, his or its employee” (emphasis supplied) is also, as the italicized words establish, phrased broadly enough to include contribution and indemnification claims. We are, thus, required to review the superintendent’s determination in light of the Legislature’s intent with respect to coverage by the Security Fund when it included subdivision 13 claims but excluded subdivision 15 claims.

In view of the ambiguity evident from a reading of the relevant statutory provisions, the superintendent’s determination does not run “counter to the clear wording of a statutory provision” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). He is, moreover, vested by sections 10 and 21 of the Insurance Law “with broad power to interpret, clarify, and implement the legislative policy” embodied in that law (Ostrer v Schenck, 41 NY2d 782, 785; Breen v Cunard Lines S.S. Co., 33 NY2d 508, 511) whether by regulation or by a ruling such as is involved in the instant case. His determination will be upheld, therefore, unless irrational or unreasonable (Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Markets, 58 NY2d 1097; Matter of Howard v Wyman, 28 NY2d 434).

That the superintendent’s conclusion is neither irrational nor unreasonable becomes evident when the provisions of the Insurance Law and the Workers’ Compensation Law are more closely examined. Evident from a review of subdivision 2 of section 334 is that claims within subdivision 15 were not intended to be paid from the Security Fund it established, not only because clause (a) of paragraph (ii) omitted that subdivision from its list of included risks but also because clause (b) of paragraph (ii) and paragraph (iv) by specifically including other risks covered by the Workers’ Compensation Law made it clear that the omission was intentional. There is, moreover, no irreconcilable inconsistency between subdivisions 13 and 15 of section 46. Subdivision 15 is limited to claims, whether original or third party, for injury or death of an employee, while subdivision 13 covers claims, whether original or third party, arising out of injury or death of any person other than an employee, as its final clause makes indelibly clear. The exclusion from subdivision 13 of insurance specified in subdivision 15 and the omission of subdivision 15 from subdivision 2 of section 334 necessarily excludes from the security fund established by section 334 the insurance against liability “assumed by contract, of any employer for * * * injury to, his or its employee” which is authorized by subdivision 15.

III

Arcade and amicus argue, nevertheless, that the Security Fund covers Arcade’s claim because (1) subdivision 15 covers only an employee’s direct claim against his employer, (2) it is inconsistent to assess a subdivision 13 insurer such as Consolidated for contribution to the Security Fund but exclude a claim under that policy from coverage by the fund, and (3) the legislative history shows that the fund was intended to protect policyholders and claimants in all lines of property and liability insurance. None of those contentions furnishes a basis for overturning the superintendent’s determination.

The direct claim argument is based in part upon the distinction between claims for indemnity and for injury to an employee and in part on the fact that an employer may contract to provide compensation or employer’s liability coverage to persons not protected by the Workers’ Compensation Law and the Employer’s Liability Law. The short answer to the first is that the cases relied upon (Insurance Co. of North Amer. v Dayton Tool & Die Works, 57 NY2d 489; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551, supra; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, mot for lv to app den 52 NY2d 701) construed the contractual indemnity exclusion in an insurance policy whereas we are construing a statutory exclusion from the Security Fund of claims for death of or injury to an employee whether liability is “imposed by common law or by statute or assumed by contract”. Not only are the governing rules of construction entirely different, but also the language being construed and the context in which it was used differs materially in the two situations. As for the second contention it is enough to note that the words “assumed by contract” are broad enough to encompass not only contracts that fill gaps in the two laws referred to but also a contract of indemnity such as is here involved.

The absence of provision for proration of assessment to exclude so much of Consolidated’s premium as was allocable to a third-party claim resulting from injury to an insured’s employee is no greater help to Arcade. The Security Fund does not cover risks located or resident in States other than New York or claims in excess of $1,000,000 or claims by a person owning more than 10% of the insolvent carrier (Insurance Law, § 334, subd 2; Matter of Interstate Ins. Co. [Murphy Pacific Mar. Salvage Corp. (Merritt Div.)], 47 NY2d 909), but no provision is made for proration as to such risks. Indeed the only limitations upon the “net direct written premiums” on which assessment is based are that it be for the kinds of insurance enumerated in section 334 (subd 2, par [ii]) and that insurance within the motor vehicle liability Security Fund established by section 333 be excluded. Therefore, the failure to prorate for such third-party indemnity claims affords no basis for inferring a legislative intent to require payment of them from the Security Fund.

The legislative history to which claimant and amicus point contains statements that support the contention that all property-liability policyholders would be protected after establishment of the Security Fund. Thus the Executive Department memorandum which presented the bill to the Legislature stated (McKinney’s Session Laws of NY, 1969, p 2394): “Although few insurers doing business in New York have become insolvent in the past thirty years, it is impossible to eliminate insolvencies altogether. Where insolvency occurs, however, the policyholder or claimant should not have to bear the loss. Legislation recognizing this principle has already been adopted with respect to life, workmen’s compensation and automobile liability insurance. This bill would extend such protection to policyholders in the other property-liability lines. The bill would make New York the only state to provide its residents with an effective guarantee against loss due to insurance company insolvency in all property liability lines” and an equally strong statement appears in the Governor’s message on the approval of the bill (McKinney’s Session Laws of NY, 1969, p 2544). Based on these statements it is argued that subdivision 15 was omitted from the subdivision 2 listing only because the direct claims it embraced were already covered by other security funds established by sections 76, 107 and 109-d of the Workers’ Compensation Law.

The argument proves too much. Also omitted from subdivision 2 of section 334 as originally enacted was any reference to subdivision 3 of section 46 of the Insurance Law which defines “accident and health insurance” to include “insurance providing disability benefits pursuant to article nine of the work[er]’s compensation law.” Not until the 1980 amendment of section 334 (L 1980, ch 784) were disability benefit insurance claims covered by the section 334 Security Fund. Moreover, although the stock workmen’s (sic) compensation security fund created by section 107 of the Workers’ Compensation Law and the mutual workmen’s (sic) compensation security fund created by section 109-d of the Workers’ Compensation Law cover only claims for “compensation and benefits provided by” the compensation law (i.e., direct claims), subdivision 1 of section 76, which creates the State Insurance Fund, as already noted, covers not only direct claims but also claims based upon “liability other than liability assumed by contract imposed upon employers by reason of a suit or claim brought against the employer * * * to recover the amount of damages obtained from such other by an employee of the employer for injuries or * * * death sustained by such employee arising out of and in the course of his employment” (i.e., third-party claims for indemnification or contribution other than those assumed by contract), and has included such claims since 1951 or before. Further, even with respect to covered lines the Security Fund does not cover all claims: risks located or resident out of State, those exceeding $1,000,000 and those of major investors in the insurance carrier are expressly left unprotected (Insurance Law, § 334, subd 2; see Matter of Professional Ins. Co. of N. Y. [Superintendent of Ins. of State of N. Y.], 49 NY2d 716, affg on opn below 67 AD2d 850; Matter of Interstate Ins. Co. [Murphy Pacific Mar. Salvage Corp. (Merritt Div.)], 47 NY2d 909, supra).

The discrepancies between claimant’s thesis and the statute as enacted make it evident that at most we are dealing with a legislative omission that should not be supplied by us (Matter of McNerney v City of Geneva, 290 NY 505, 511; McKuskie v Hendrickson, 128 NY 555, 558; McKinney’s Cons Laws of NY, Book 1, Statutes, § 363). The superintendent’s determination is, thus, neither arbitrary nor unreasonable. The Appellate Division’s order should, therefore, be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur.

Order affirmed, with costs.

      . Not in issue here is Arcade’s right to claim in the liquidation proceeding as a general creditor of Consolidated. Nor is any question raised before us concerning the effect of section 5-322.1 of the General Obligations Law, on Arcade’s contractual obligation (see Quevedo v City of New York, 56 NY2d 150, mot for rearg den 57 NY2d 674).

      . The subdivision reads as follows: “The property and liability insurance security fund shall be used in the payment of allowed claims remaining unpaid, in whole or in part, by reason of the inability due to insolvency of an authorized insurer to meet its insurance obligations under policies (i) on account of claims from motor vehicle accidents as defined in subdivision one of section three hundred thirty-three, (ii) (a) in all of the kinds of insurance specified in subdivisions four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, sixteen, seventeen, nineteen, twenty and twenty-one of section forty-six with respect to coverage of property or risks located or resident in this state, and (b) in the kind of insurance providing disability benefits pursuant to article nine of the workers’ compensation law issued by an authorized insurer licensed under article ten, eleven-A or eleven-B, or a reciprocal insurer licensed under article twelve of this chapter, with respect to coverage of risks located or resident in this state, (iii) in the insurance provided by the medical malpractice insurance association, (iv) in the insurance provided pursuant to subdivision two-a of section seventy-six of the workers’ compensation law if and when operative and (v) including any obligation for the return of unearned premiums on any policy specified in clauses (i), (ii), (iii) and (iv). No such payment from the property and liability insurance security fund shall, however, be made to any person who owns or controls ten per cent or more of the voting securities of the insolvent insurer and no payment on any one claim shall exceed one million dollars.”

      . The subdivision reads: “ ‘Personal injury liability insurance,’ meaning insurance against legal liability of the insured, and against loss, damage or expense incident to a claim of such liability, and including an obligation of the insurer to pay medical, hospital, surgical and disability benefits to injured persons, and funeral and death benefits to dependents, beneficiaries or personal representatives of persons who are killed, irrespective of legal liability of the insured, arising out of the death or injury of any person, or arising out of injury to the economic interests of any person as the result of negligence in rendering expert, fiduciary or professional service, but not including any kind of insurance specified in subdivision fifteen.”

      . That conclusion makes it unnecessary to consider the superintendent’s arguments based upon the powers granted him by subdivision 24 of section 46 and by subdivisions 3, 4 and 5 of section 334.

      . The more is this so in view of the fact that as originally enacted by chapter 189 of the Laws of 1969, subdivision 2 included only so much of the present subdivision as is contained in paragraph (i) and clause (a) of paragraph (ii). The rest of the subdivision, including the provisions referred to in the text, was added by chapter 109 of the Laws of 1975, chapter 615 of the Laws of 1976, and chapter 784 of the Laws of 1980.

      . That the standard compensation policy issued when section 334 was adopted excluded liability assumed by contract “because such assumed liability is not liability imposed by law” (Millus & Gentile, Workers’ Compensation Law and Insurance, p 313) is irrelevant. Subdivision 15 authorizes compensation insurers to cover “liability, whether imposed by common law or by statute or assumed by contract” and it is insurance of the kind specified in subdivision 15, not what the carriers issue under that authorization, that is excluded from subdivision 13 and, therefore, from the Security Fund created by section 334. Likewise unpersuasive is the fact that, for reasons as to which its legislative history provides no insight, chapter 306 of the Laws of 1951, which made clear the right of the State Insurance Fund to continue writing coverage for the third-party liability of employers specifically excluded from that authorization “liability assumed by contract” (Workers’ Compensation Law, § 76, subd 1). At most these are factors creating ambiguity in the statutes construed by the superintendent, and his interpretation not being irrational or unreasonable is to be upheld (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

      . “The bill extends insolvency protection to policyholders and claimants in all lines of property and liability insurance. New York thus becomes the first state to guarantee its residents against loss due to insurance company insolvency in all property-liability lines”. (See, also, Report of the Insurance Department to Governor Rockefeller [Jan. 7, 1969]: The Public Interest Now in Property and Liability Insurance Regulations, p 15; Statement by Superintendent of Insurance, Richard E. Stewart, before the Joint Legislative Committee on Insurance Rates and Regulation, pp 4-5; Report of Joint Legislative Committee on Insurance Rates, Regulation and Recodification of the Insurance Law and Related Statutes, Legis Doc [1969] No. 9A, 44.)

      . Our affirmance on the opinion at the Court of Claims (81 Misc 2d 402) in Dutchess & Columbia Coop. Ins. Co. v State of New York (36 NY2d 835) is not to the contrary, for that case concerned no contraindicative statutes and upheld as not unreasonable or irrational the superintendent’s construction of section 334 as covering co-operative fire insurance companies and thus requiring that they contribute to the Security Fund.


author: Wachtler, J.

text:
    In the Matter of Board of Visitors — Marcy Psychiatric Center et al., Appellants-Respondents, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents-Appellants.
    Argued July 5, 1983;
    decided July 7, 1983

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General {James A. Sevinsky and Peter H. Schiff of counsel), for respondents-appellants.
    I. The Commissioner of Correctional Services properly issued a declaration of emergency and fully complied with the State Environmental Quality Review Act. (Matter of Pell v Board of Educ., 34 NY2d 222; Lincoln Bldg. Assoc. v Barr, 1 NY2d 413; Matter of Cohalan v Carey, 88 AD2d 77, 57 NY2d 602; Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41; Devitt v Heimbach, 58 NY2d 925; Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474, 55 NY2d 747, 56 NY2d 985; Matter of Schenectady Chems. v Flacke, 83 AD2d 460; Matter of Town of Henrietta v Department of Environmental Conservation of State of N. Y., 76 AD2d 215.) II. Placement of a medium security correctional facility on a portion of the Marcy Psychiatric Center does not require amendment of the Mental Hygiene Law or reconsideration by the Legislature. (Semple v Miller, 38 AD2d 174; Goodman v State of New York, 37 AD2d 703; Matter of Howard v Wyman, 28 NY2d 434; Saxton v Carey, 44 NY2d 545.)

      Donald, E. Keinz for appellants-respondents.
    I. Colocation without legislative authority violates the Mental Hygiene Law. (Matter of David M., 77 Misc 2d 491; Ball v State of New York, 41 NY2d 617.) II. Appellants-respondents are in violation of the State Environmental Quality Review Act. (Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41; Devitt v Heimbach, 58 NY2d 925; Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474; Matter of Town of Henrietta v Department of Environmental Conservation of State of N. Y., 76 AD2d 215; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222.)
   OPINION OF THE COURT

Wachtler, J.

On this appeal we are asked to consider whether State officials should be prevented from taking immediate action on an emergency plan to convert an unused portion of a State mental institution (Marcy Psychiatric Center) into a correctional facility. Two issues are presented for review. First it is argued that the proposed plan would violate subdivision (b) of section 7.11 of the Mental Hygiene Law which prohibits the Commissioner of Mental Hygiene from discontinuing this particular facility. Secondly it is urged that no action may be taken on the project until an environmental impact statement has been filed and reviewed pursuant to ECL 8-0109 (SEQRA).

The Supreme Court granted relief against the State on both grounds. The Appellate Division found that only the second point had merit and modified the order accordingly. Both sides have appealed to this court. The petitioners’ appeal has been taken as a matter of right on the basis of the modification. The State officials have appealed by leave of this court.

We have concluded that the order of the Appellate Division should be further modified by dismissing the petition. In our view neither of the arguments asserted provides any basis for granting the relief requested.

The record shows, and indeed it is a matter of common knowledge, that there is a critical shortage of correctional facilities in this State. Although the problem has existed for some time, it has become particularly acute in recent years. The adoption by the Legislature of stricter rules requiring mandatory sentences for those convicted of major offenses has dramatically increased the prison population. However, there has not been a comparable increase in the funds necessary to provide additional correctional facilities. The resulting overcrowded conditions have, on several occasions, prompted the Federal courts to intervene by directing State officials to make additional facilities available for the proper treatment of prisoners. On occasion the tensions created by overcrowding have also led to violence, most notably at Attica and Ossining.

The ultimate solution undoubtedly may well be for the State to construct additional correctional institutions. That, however, would require considerable time to implement and additional tax levies. In the interim the newly elected Governor has decided to alleviate the crisis by employing existing State facilities which were originally constructed for other purposes but are presently being underutilized. In February the Governor identified the Marcy Psychiatric Center (Marcy) as one suitable for this purpose. In March the Legislature appropriated the funds necessary to convert a portion of that facility into a medium security correctional institution.

The planned project involves two phases. Phase I provides for the housing of 300 inmates at Marcy. Phase II contemplates the transfer of an additional 900 inmates to Marcy. This latter phase, however, would require additional legislative funding and approval and is not scheduled to begin until 1985.

The Commissioner of Correctional Services, charged with the implementation of the project, issued a “positive declaration” on May 9, recognizing that the proposed conversion could have an impact on the environment. Accordingly he made known his intention of filing an environmental impact statement as required by ECL 8-0109. Although that statute generally prohibits a governmental agency from taking any action until the environmental impact statement has been filed and reviewed (see, e.g., Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41), the applicable regulations contain an exception for actions “immediately necessary on a limited emergency basis for the protection or preservation of life, health, property or natural resources” (6 NYCRR 617.2 [o] [6]). Pursuant to that regulation the Commissioner of Correctional Services also issued on May 9 a “Declaration of Emergency”, designating the Marcy project as an emergency action “because immediate action must be undertaken and there is insufficient time, to commence and complete SEQRA Review prior to the commencement of the action.”

The present suit, originally brought as an action for an injunction, was converted by the Supreme Court into an article 78 proceeding because it challenges the authority or jurisdiction of the various State officials involved in the Marcy project. As noted, the court agreed with the petitioners that the contemplated action would violate subdivision (b) of section 7.11 of the Mental Hygiene Law which provides that certain facilities, including Marcy, “may not be discontinued by the commissioner [of Mental Hygiene]”. In reaching this conclusion the court noted that section 1.03 of the Mental Hygiene Law defined a “facility” as including a “building”, and that under Phase I of the project “5 buildings will be discontinued”. The court also held that the project did not involve an emergency within the meaning of 6 NYCRR 617.2 (o) (6) because “these efforts indicate an ongoing process, not an emergency” and there is no “immediate” need to convert this particular facility to correctional uses. Thus the court held the State could not proceed without additional authorization from the Legislature to “discontinue” the facility, and even then could not take any action until an environmental impact statement had been filed and reviewed.

The Appellate Division on the other hand found no violation of subdivision (b) of section 7.11 of the Mental Hygiene Law noting that Phase I of the project only involved the conversion of 5 of the 35 buildings at the center. “The remaining 30 buildings will continue in use as a psychiatric facility”. The Appellate Division agreed with the Supreme Court, however, that implementation of Phase I did not constitute an exempt emergency action under 6 NYCRR 617.2 (o) (6) because it is part of a “permanent conversion of all or part” of the facility into a medium security prison.

On the appeal by the petitioners we conclude, as the Appellate Division did, that the project does not represent a discontinuance of the facility. Section 1.03 of the Mental Hygiene Law defines a facility as “any place in which services for the mentally disturbed are provided and includes but is not limited to a psychiatric center, developmental center, institute, clinic, ward, institution, or building”. Although it is clear that under this definition a building may constitute a facility, it is equally clear that the Legislature viewed a facility as a separate entity which may range in size from a portion of a building, as is often the case with a ward or clinic, to a multibuilding complex such as a psychiatric center or institute. In the latter case the closing or conversion of a single building could not reasonably be considered a discontinuance of the facility.

In addition, and more significantly, section 7.11 of the statute does not prohibit the commissioner in all cases from discontinuing a facility. On the contrary, it specifically authorizes him to “continue, establish, discontinue, expand, and contract facilities under his jurisdiction”, with the exception of certain facilities set forth in section 7.17 which “may not be discontinued by the commissioner”. One of these “facilities” designated in that section is the “Marcy Psychiatric Center”. Thus it is evident that the Legislature itself considers this particular center as a “facility” which may be contracted, but not discontinued. That is precisely what would occur under the plan now before us. The center would be contracted, by converting a number of unused buildings to other purposes, but even under Phase II a core of buildings would continue to serve the needs of the mentally ill.

On the appeal by the Commissioner of Correctional Services, and other State officials, we do not agree with the courts below that all action must be postponed on the project until an environmental impact statement has been filed and reviewed. In reaching their conclusions the courts below appear to have applied the incorrect standard of judicial review of the determination by the commissioner that the actions now at issue are “immediately necessary on a limited emergency basis” and thus exempt under 6 NYCRR 617.2 (o) (6). The standard of review is not whether we or the courts below would conclude that a limited emergency exists; it is rather whether the determination by the Commissioner of Correctional Services that such an emergency exists was irrational or arbitrary or capricious. In our view the commissioner could reasonably find that the Marcy project represents emergency action within the meaning of the applicable regulation, sufficient to provide some dispensation from the requirements generally governing environmental statements.

The petitioners urge that the regulation was only “intended to allow immediate steps to be taken during a limited emergency such as blocking off a water source when a dam breaks”. Concededly the case now before us does not present the classic example where immediate action is required to meet an emergency in which the effect of the action may be immediately realized. There is apparently no quick solution which will immediately eliminate the problems of overcrowded jails. But that doés not mean that there is no crisis or that there is no need to take immediate action to lay the foundation for a program which may provide relief in the near future. State officials confronted with an ever increasing influx of inmates into a prison system, already filled to well over 100% of capacity, can hardly be said to be acting irrationally if they conclude that some action must be taken immediately to avert in the future the violence which has occurred in the past.

Neither can it be said that the decision to take immediate action at this time is unreasonable because prison overcrowding is a problem of long standing in this State. Emergencies are often precipitated by the failure to take needed action in the past despite adequate warning. Certainly in the example provided by the petitioners no one would suggest there was no emergency and that public officials would be required to file an environmental impact statement before they could divert a water source in the face of a bursting dam if the potential defect in the dam had long been a matter of common knowledge.

The Appellate Division apparently was more concerned with the fact that the Marcy project appears to be a permanent measure and not the type of temporary response typically associated with emergencies. This, of course, would be an important consideration if the State were seeking complete exemption from all the requirements of the SEQRA. But here the State has recognized its obligation to file an environmental impact statement, submit to the review required by the statute and take all action necessary to minimize the impact of the project prior to completion. It only urges dispensation from the general requirement that no action be taken on the project prior to the filing and subsequent review proceedings.

All the State has done so far, and intends to do in the next few months, is refurbish several of the buildings at the facility by restoring masonry, painting, improving fire safety apparatus and the like. No action will be taken irrevocably referable to the conversion of the buildings for correctional uses. Neither will any prison inmates be transferred to the facility prior to November, 1983. Thus the only actions at issue on this appeal are limited to steps immediately necessary to cope with the emergency and therefore permissible under the regulation (6 NYCRR 617.2 [o] [6]).

Accordingly, the order of the Appellate Division should be modified by dismissing the petition.

Chief Judge Cooke and Judges Jasen, Jones, Meyer and Simons concur.

Order modified, with costs to respondents-appellants in accordance with the opinion herein and, as so modified, affirmed.

       Prior to oral argument we were informed that the statement was prepared and filed and is now awaiting review.


author: Jones, J. Chief Judge Cooke Jasen, J.

text:
    Gladys V. Shine, as Administratrix of the Estate of William J. Shine, Jr., Deceased, Appellant, v Duncan Petroleum Transport, Inc., Respondent, and Consolidated Petroleum Terminal, Inc., et al., Appellants. (Action No. 1.) Helen W. Rittenhouse, Individually and as Administratrix of the Estate of Charles W. Rittenhouse, Jr., Deceased, Appellant, v Consolidated Petroleum Terminal, Inc., et al., Appellants, and Duncan Petroleum Transport Corp., Respondent. (Action No. 2.)
    Argued June 1, 1983;
    decided July 12, 1983

      POINTS OF COUNSEL

      Alan J. Firestone and Donald L. Marcovitz for Gladys V. Shine, appellant.
    The question of the workers’ compensation defense should have been determined by the trial court and it was error to stay the trial and refer the issue of the availability of the workers’ compensation defense to the Workers’ Compensation Board. (O’Rourke v Long, 41 NY2d 219; Bradford v Air La Carte, 79 AD2d 553; Daiserna v Co-Op. G.L.F. Holding Corp., 26 AD2d 594; Vaughn v City of New York, 108 Misc 2d 994, 89 AD2d 944.)

      Edgar T. Schleider for Helen W. Rittenhouse, appellant.
    The validity of the workers’ compensation-employer defense, first asserted by Duncan on the day of trial of this action, and based on a piercing by Duncan of its own corporate veil, should be tried by the court and jury in the pending action, and not severed and submitted to the Workers’ Compensation Board for determination. ?(O’Rourke v Long, 41 NY2d 219; O’Connor v Midiria, 55 NY2d 538; Daiserna v Co-Op. G. L. F. Holding Corp., 26 AD2d 594; Bradford v Air La Carte, 79 AD2d 553; Poppenberg v Reliable Maintenance Corp., 89 AD2d 791.)

      Jerome J. Margolies and Raymond Green for Five Boro Fuel Transport, Inc., appellant.
    The issue of employment of plaintiffs’ decedents has already been decided by the Workers’ Compensation Board arid it was error to stay the trial. (O’Rourke v Long, 41 NY2d 219.)

      Robert F. Van der Waag for Consolidated Petroleum Terminal, Inc., and others, appellants.
    Whether respondent was the employer of plaintiffs should be decided and tried by the court and jury in the pending civil action. The previous workers’ compensation claims by plaintiffs have already been decided by the workers’ compensation panel and their decision is final. (O’Rourke v Long, 41 NY2d 219; Weber v State of New York, 104 Misc 2d 947; Bradford v Air La Carte, 79 AD2d 553; Daiserna v Co-Op. G. L. F. Holding Corp., 26 AD2d 594; Morey v City of Rochester, 274 App Div 969; Vaughn v City of New York, 108 Misc 2d 994; Takacs v Food Stop Markets, 61 AD2d 917; O’Connor v Midiria, 55 NY2d 538; Werner v State of New York, 53 NY2d 346; Newland v Goelz, 35 Misc 2d 29.)

      Wade T. Dempsey and Edward J. Hart for respondent.
    The Workers’ Compensation Board is the proper forum to determine if plaintiffs were employees of Duncan Petroleum Transport, Inc. (O’Rourke v Long, 41 NY2d 219; Weber v State of New York, 104 Misc 2d 947.)
   OPINION OF THE COURT

Jones, J.

Although the Workers’ Compensation Board has primary jurisdiction to determine the applicability of the Workers’ Compensation Law when an employee brings an action against one who may be his employer, in the unusual circumstances of this case it was an abuse of discretion on the part of the trial court to grant the employer a stay of the trial of the common-law action brought on behalf of the employees pending reference of their claims to the Workers’ Compensation Board.

Appellants’ decedents, William H. Shine, Jr., and Charles W. Rittenhouse, Jr., suffered fatal injuries in an explosion and fire which occurred on April 28, 1976 at a gasoline terminal in Setauket, Long Island, while gasoline was being transferred to a tanker-trailer. Rittenhouse died May 6 and Shine, May 7, 1976.

Claims were submitted by appellants administratrices under the Workers’ Compensation Law on the theory that at the time of the explosion the decedents were employees of Five Boro Fuel Transport, Inc. The Workers’ Compensation Board determined that both decedents were employees of Five Boro and made awards with respect to both decedents, as to Rittenhouse on December 29, 1976 and as to Shine on July 5, 1977. Based on the determinations of the Workers’ Compensation Board the court dismissed the present common-law action as to Five Boro by order dated November 14, 1978.

In July, 1981, on the morning when jury selection was to begin in this action, Duncan Petroleum Transport, Inc., another defendant, moved for a stay of all judicial proceedings pending a determination by the Workers’ Compensation Board whether the decedents were also employees of Duncan as it asserted, in which event the Workers’ Compensation Law would likewise constitute a bar to the common-law action against Duncan. By order dated September 3, 1981 Special Term granted the motion for a stay pending determination by the Workers’ Compensation Board. The Appellate Division affirmed, without opinion. We now reverse, holding that in the circumstances disclosed in this record it was an abuse of discretion to have granted the stay.

In an affidavit submitted in support of the motion for a stay it was asserted categorically that at the time of the explosion there were two corporations, Duncan and Five Boro, “whose stockholders were identical, whose management was identical, and whose offices were identical”. In his affidavit, also submitted in support of the application, Wesley Charles Wright stated that he was president of both corporations, that “for all intents and purposes the firms were considered a single entity”, and that the decedents were “considered employees of both corporations, or perhaps more correctly, the corporations were considered a single entity that employed all of the involved employees”. Wright had been examined before trial in the present action on October 13, 1978 and then raised no question as to the bar of workers’ compensation; indeed he testified at that time that neither of the decedents was an employee of Duncan.

We held in O’Rourke v Long (41 NY2d 219), as acknowledged by both courts below, that the Workers’ Compensation Board, as the administrative agency to which the Legislature had entrusted the responsibility, has primary jurisdiction to determine the applicability of the Workers’ Compensation Law. Thereafter, we recognized in Murray v City of New York (43 NY2d 400, 407) that, while the defense of workers’ compensation could be waived, leave to amend pleadings to include such defense should be freely granted, even in midtrial, in the absence of operative prejudice (id., at p 405). In the present instance, however, we conclude that it was an abuse of discretion to grant the stay of the common-law proceedings pending referral to and determination by the Workers’ Compensation Board of the claims arising out of the event of which this common-law action is grounded/

In this case, by its own admission, the officers and management of Duncan were the same as those of Five Boro; indeed it is unqualifiedly asserted that the two corporations constituted a single entity. Duncan’s alter ego-in-form participated in the workers’ compensation proceedings in 1976 and 1977 in which the employment status of the decedents was at issue. Thereafter Duncan was served with the original complaint in the present action in March, 1977 and with the amended complaint a year later, to which latter it served an answer in May, 1979. For it, having been fully acquainted with the factual and legal aspects of each of the two claims arising out of the explosion of April, 1976, to have waited more than two years longer and until the jury was about to be drawn in the common-law action to seek a stay and then for the first time to assert the primary jurisdiction of the Workers’ Compensation Board is unacceptable. Appellants, having prepared and being ready to proceed promptly to trial of the common-law action, suffered the “operative prejudice” to which we referred in the context of a motion to amend the pleadings in Murray v City of New York (43 NY2d 400, 405, supra). In these circumstances it was an abuse of discretion for the trial court to have granted the stay of proceedings.

Accordingly, the order of the Appellate Division should be reversed, with costs, the motion for a stay denied, and the. case remitted to Supreme Court for trial.

Chief Judge Cooke

(concurring). I concur in the majority’s reasoning and result. There is an additional ground for reversal, however. Five Boro was already determined by the Workers’ Compensation Board to be the decedents’ employer. Duncan Petroleum claims that it was a coemployer because it and Five Boro were merely alter egos. Thus, the only question to be resolved is the relationship between the two companies: if alter egos, then Duncan Petroleum is an employer; if not alter egos, then Duncan Petroleum is not an employer. In short, the issue here is not “the availability of [workers’] compensation” as such (O’Rourke v Long, 41 NY2d 219, 228), but rather the legal identity of two corporations. Deciding whether companies are alter egos, so that it is appropriate to pierce the corporate veil, is a task for which the courts are well suited, and as to which there is no need for mandatory deferral to the board in the circumstances here.

Jasen, J.

(dissenting). The court holds today, almost casually, that both courts below had abused their discretion, as a matter of law, in staying further proceedings in this action pending a determination by the Workers’ Compensation Board as to whether plaintiffs’ decedents were employees of defendant Duncan Petroleum Transport, Inc., at the time they suffered injuries resulting in theindeaths. Because I cannot agree that the courts below abused their discretion, especially in light of our clear pronouncements in Murray v City of New York (43 NY2d 400) and O’Rourke v Long (41 NY2d 219), I must dissent.

In O’Rourke v Long (supra, at p 221), we stated: “The initial question to be resolved whenever a defense of workmen’s compensation is presented is whether the plaintiff has a right to bring a plenary action. If the right to sue the employer has been stripped away by workmen’s compensation coverage, it is an arrogation of jurisdiction to consider a tort complaint on its merits.” This clear language conveyed to the Judges below that preliminary factual questions, such as we have here, which will determine whether the Workers’ Compensation Board or the courts are the proper forum to adjudicate a claim should be resolved prior to any plenary trial. Thus, we held that whether the potential plaintiff was an employee was usually a question of fact for the Workers’ Compensation Board (O'Rourke v Long, supra, at p 224, citing Matter of Gordon v New York Life Ins. Co., 300 NY 652, 654), and the proper course in deciding whether the plenary action could proceed would be to “await a conclusive determination by the Workmen’s Compensation Board.” (O’Rourke v Long, supra, at p 224.) For a court below to disregard such a positive and fixed rule of law would have been not only an abuse of discretion, but also a mistake of law.

We recognized in our ORourke holding that the Legislature had chosen to make workers’ compensation an employee’s exclusive remedy against the employer. The policy embodied in this legislative determination was that both the employer and employee should have a forum within which to seek a swift resolution of any claim between them. The Workers’ Compensation Board additionally supplies a sure source of benefits for the employee while assuring the employer that the cost will be regulated and stable. But perhaps most significantly, particularly in today’s complex business world, the Workers’ Compensation Board provides the expertise necessary to properly and uniformly administer this technically based program and assure that the Legislature’s goals are fulfilled. These policy reasons support beyond cavil our fixed rule of law that the Workers’ Compensation Board, and not a civil jury, is the proper body to determine whether the defendant in this case was an employer of the decedents.

The majority appears to agree to the extent that they believe primary jurisdiction exists in the Workers’ Compensation Board, but in this case they would allow a jury to decide the factual question of whether defendant is an employer within the meaning of the Workers’ Compensation Law because of what they term defendant’s unacceptable conduct in waiting until the eve of trial to assert the “defense” of workers’ compensation. I cannot agree that this delay, even if it was shown to be attributable to the defendant, should effectively remove what has previously unequivocally been held to be the exclusive jurisdiction of the Workers’ Compensation Board. The assertion by the defendant that it is an employer raises a factual question which should properly be resolved by the Workers’ Compensation Board. This is particularly true because the factual question is not whether the defendant is an employer as that term is defined in the common law, but rather whether defendant is an employer within the meaning of the Workers’ Compensation Law. (Workers’ Compensation Law, § 2, subd 3.) As the agency established to interpret these statutes in order to effectuate the legislative policy in a uniform manner, the Workers’ Compensation Board is the proper forum for the resolution of this issue. This is especially so when the resolution of the factual question potentially involves a complex employment relationship such as the one alleged to have existed in this case.

It may be argued, as the majority appears to, that despite the strong policy favoring a deferential policy on the part of the courts to the Workers’ Compensation Board, and absent a showing of prejudice, it is, in some manner, unfair to allow the defendant to raise this jurisdictionally critical issue immediately before trial. The short answer to that argument is that in Murray v City of New York (43 NY2d 400, supra), we unanimously reversed the Appellate Division for holding that “the trial court improvidently granted the city’s motion to conform the pleadings to the proof at the late stage [during trial, as opposed to before trial in this case] at which the workmen’s compensation defense was first interposed.” (Murray v City of New York, 54 AD2d 942, 943.) In that case, we adhered to the rationale of O’Rourke v Long (supra) and held that the pleadings could be amended at any time prior to the entry of a final judgment to raise a defense of workers’ compensation coverage and that any motion to amend should be viewed liberally by the courts below in exercising their discretion. (CPLR 3025, subd [b].) In addition, we clearly restated the O’Rourke rule that “[w]orkmen’s compensation is an exclusive remedy as a matter of substantive law and, hence, whenever it appears or will appear from a plaintiff’s pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff.” (Murray v City of New York, 43 NY2d 400, 407, supra.)

It follows logically that it is within the court’s discretion, to be exercised liberally, to stay the proceeding until such time as the Workers’ Compensation Board has resolved that particular question of fact. While this may work some hardship in a case where the trial has begun, I cannot agree with the majority (at p 27) that plaintiffs in this case have necessarily suffered the “‘operative prejudice’” referred to in Murray v City of New York (supra, at p 405). In this case, there was no finding of prejudice to the plaintiff and it is beyond our power to make such a finding. Furthermore, greater prejudice may result to both sides if after going through the time-consuming and expensive process of trial it is determined by the trial jury that defendant is an employer and the plenary action is barred. (O’Rourke v Long, supra, at p 221.)

Finally, whether a stay should have been granted is, particularly in these circumstances, a question of discretion. We previously indicated that discretion should be exercised liberally to allow amendments to the pleadings and I believe the standard for the granting of a stay should be as liberal to avoid conducting what may be determined to be a useless trial. By holding that the Trial Judge and the Appellate Division in this case abused their discretion •as a matter of law, the majority is in reality merely substituting its own discretion for that of the courts below. I cannot agree that given the strong policy behind the Workers’ Compensation Law, as we have made clear in our O’Rourke and Murray decisions, it was an abuse of discretion to grant the stay pending resolution by the Workers’ Compensation Board of a question which is clearly within their mandated authority and technical expertise.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Meyer and Simons concur with Judge Jones; Chief Judge Cooke concurs in a concurring memorandum; Judge Jasen dissents and votes to affirm in a separate opinion; Judge Wachtler taking no part.

Order reversed, with costs, motion for a stay denied and case remitted to Supreme Court, Suffolk County, for trial. Question certified answered in the negative.

       There is a distinction between a motion to amend the pleadings to raise the defense of workers’ compensation and a motion to stay a trial pending determination of the availability of that defense by the Workers’ Compensation Board. In the former case, if the motion to amend is granted, trial of the common-law action may proceed in normal course and the availability of the bar of workers’ compensation will be decided in that action (as was the case in Murray v City of New York 43 NY2d 400); not having sought a stay of the common-law action in addition to an amendment of the pleadings the asserting employer may be held to have waived its right to urge the primary jurisdiction of the Workers’ Compensation Board. In the latter case, if the motion for a stay is granted on the ground of primary jurisdiction, trial of the common-law action must be interrupted and postponed.


text:
    In the Matter of Symphony Space, Inc., Appellant, v Harry S. Tishelman, as Commissioner of Finance of the City of New York, et al., Respondents.
    Decided July 12, 1983

      APPEARANCES OF COUNSEL

      Daniel M. Abuhoff, Jonathan A. Small and John H. Hall for appellant.

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (Judith R. Greenwald, of counsel), for respondents.

      Robert L. Beebe and Deborah R. Herbach for State Board of Equalization and Assessment, amicus curiae.

      Robert Abrams, Attorney-General (<Jonathan J. Silbermann of counsel), for Robert Abrams, amicus curiae.

   OPINION OF THE COURT

Wachtler, J.

In this proceeding, petitioner seeks to have certain of its real property, a theatre, tax exempt pursuant to section 420-a of the Real Property Tax Law.

The Symphony Space, Inc., was formed in 1978 under the New York Not-For-Profit Corporation Law to engage in various musical, theatrical, artistic and academic activities. Its certificate of incorporation states its purposes to be “exclusively charitable, educational and in support of the moral and mental improvement of men, women and children.” In August, 1978 it received a tax exemption from the Internal Revenue Service. In December, 1978 it purchased the property which is the subject of this proceeding located at Broadway and 95th Street, Manhattan, a portion of which consists of the Symphony Theatre. It applied for a tax exemption for the theatre property only pursuant to section 420-a of the Real Property Tax Law under the general categories of “charitable, educational and in support of the moral and mental improvement of men, women and children”. The Tax Commissioner denied petitioner’s application. Petitioner then commenced this proceeding pursuant to article 7 of the Real Property Tax Law to have the Commissioner of Finance and the Tax Commission of the City of New York remove its theatre property from the tax rolls and compel the granting of tax exemption. The trial court confirmed the Tax Commission’s determination and dismissed the petition. The Appellate Division affirmed and we granted leave to appeal.

Symphony Space is involved in a broad range of activities. It offers facilities and instruction free to both public and private schools and struggling artists lacking money and experience to perform commercially. It provides 30 hours a week of free rehearsal time. Neighborhood groups can use its facilities for little or no charge and the audience pays little or no admission. As noted by the trial court, Symphony Space is a haven for theatre and dance companies that otherwise would have no place to perform and is “community oriented, stimulating performing groups and new audiences that would otherwise remain untapped.” The majority of its expenses are funded by foundations, corporations and government agencies. It also performs for and conducts lectures and demonstrations for school audiences and permits schools to rehearse and perform at the the theatre. Students at Rockland Community College, S.U.N.Y., earn credits working at the theatre. Lighting, staging, promotion and publicity are taught and petitioner conducts lectures, discussions, workshops and commentary which are integrated with the performances.

Because we believe that the purposes for which Symphony Space was organized are exempt and the activities in which it engages fall within the general categories of “charitable, educational and the moral and mental improvement” under section 420-a of the Real Property Tax Law, we reverse the order of the Appellate Division and grant the petition. The decisions of the Tax Commission and the lower courts give the terms “charitable, educational and moral or mental improvement” an overly narrow interpretation in light of recent decisions by this court (see Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328; Matter of North Manursing Wildlife Sanctuary [City of Rye], 48 NY2d 135; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476). While exemption statutes should be construed strictly against the taxpayer seeking the benefit of the exemption, an interpretation so literal, and narrow that it defeats the exemption’s settled purpose is to be avoided.

In Mohonk Trust (supra, at p 484) we held that lands used for environmental and conservation purposes which are necessary to the public good and which are open to and enjoyed by the public are lands used “primarily for an assortment of ‘charitable * * * educational, [and] moral improvement of men, women or children’ purposes” and thus qualify for a tax exemption pursuant to section 421 (subd 1, par [a]) of the Real Property Tax Law. Similarly, we held that this same statutory tax exemption applies to a wildlife sanctuary (Matter of North Manursing Wildlife Sanctuary [City of Rye], 48 NY2d 135, supra) and to an arboretum (Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328, supra) used for a combination of purposes, the most predominant of which were conservation, preservation, instruction, recreation and ecological study.

In contrast with the approach taken by this court, Trial Term, in the present case, has taken a narrow and fragmentary view of the exemption. In rejecting petitioner’s argument that it was organized for educational purposes, the court focused on the fact that Symphony Space was not approved by the Commissioner of Education, was not chartered by the Board of Regents, and does not have faculty or student enrollment. The court similarly rejected the exemption under the “moral or mental improvement” category, reasoning that the exemption is meant to cover only YMCA types of organizations and was not intended to cover the performing arts. However, this court has not made such requirements necessary before an institution qualifies for a tax exemption under those categories (Matter of North Manursing Wildlife Sanctuary [City of Rye], 48 NY2d 135, supra; see Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476, supra). In fact, rather than dissecting each exempt purpose, this court has indicated that the statute may encompass property used primarily for various and varied charitable and educational purposes and the moral or mental improvement of the citizenry (.Mohonk Trust v Board of Assessors of Town of Gardiner, supra, at- p 484).

The trial court, in distinguishing this case from Mohonk Trust {supra), held that the performing arts, unlike environmental and conservation concerns, are, by implication, removed from the general category of charitable, educational or mental and moral improvement facilities under section 420-a of the Real Property Tax Law because they are provided for separately under section 424 of the Real Property Tax Law (institutes of arts and sciences which maintain academies of music), section 426 of the Real Property Tax Law (opera houses) and section 427 of the Real Property Tax Law (performing arts buildings). However, Trial Term has misapplied a statement made by this court in Mohonk Trust (supra) which refers to the 1971 amendment separating the tax-exempt categories within section 421 (renum § 420, L 1981, ch 105, § 1) into a mandatory and a permissive class and which had nothing to do with sections 424, 426, 427. There is nothing in the statute which would indicate that property used for the performing arts is excluded from an absolute tax exemption if it otherwise qualifies under the general categories of subdivision 1 of section 420-a of the Real Property Tax Law (see Matter of Little Theatre of Watertown v Hoyt, 7 Misc 2d 907, affd 4 AD2d 853).

Finally, the trial court reasoned that because petitioner rents its theatre to outside groups on different rental or license bases and often charges admission, there is a commercial patina which tends to negate the application of the charitable and educational categories in that it is not organized or conducted exclusively for an exempt purpose. In determining whether the real property of a corporation is used exclusively for the exempt purpose, the word “exclusive” has been held to connote “principal” or “primary” (Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476, 483, supra). A “commercial patina” alone is not enough to defeat tax-exempt status especially when such rentals are merely incidental or auxiliary to the main-exempt purpose and do not realize a profit but are used to cover petitioner’s costs (see Matter of Stuyvesant Sq. Thrift Shop v Tax Comm. of City of N. Y., 54 NY2d 735; Sisters of St. Joseph v City of New York, 49 NY2d 429; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143). Moreover, restrictions placed on the use of or public access to the property do not strip the property of its tax-exempt character which requires that it be “open to and enjoyed by the public”, as long as the restrictions imposed are not inconsistent with the public purpose for which the property is being used (see Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328, 337, supra).

From the record, it is clear that Symphony Space is not organized for the purpose of making a profit or competing commercially with other theatres. Its focus is on community participation and on community service. Symphony Space provides the general public with access, otherwise limited, to the various aspects of the performing arts, including the unique opportunity to create, perform, learn and otherwise be involved in the wide spectrum of activities that are housed in the theatre. The theatre property used for the purpose of exploring these various aspects of the performing arts is as necessary to the public good and is as open to and enjoyed by the public as is property used for environmental and conservation purposes.

Accordingly, the order of the Appellate Division should be reversed and the petition for tax exemption should be granted.

Chief Judge Cooke and Judges Jasen, Jones, Meyer and Simons concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and the petition granted.

      . The theatre comprises approximately 58% of the total square footage of floor space. Petitioner has not requested tax-exempt status for the remaining part of the property which is used by a tenant and subtenants for a variety of commercial purposes.

      . This section was renumbered section 420-a (L 1981, ch 919).

      . The mandatory class as defined by subdivision 1 of section 420-a of the Real Property Tax Law have absolute exemption while the permissive class as defined by subdivision 1 of section 420-b of the Real Property Tax Law have a qualified exemption and may be taxed by local municipalities (see Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328, 333-334).

      . The Tax Commission took note of the fact that such rents and contributions did not exceed its expenditures for the year 1978.


author: Per Curiam.

text:
    In the Matter of T. Garry Burns, as City Clerk of the City of Albany, Appellant, v Raymond J. Kinley et al., Constituting the Board of Elections of the County of Albany, Respondents, and George P. Scaringe, as Chairman of the Republican Party of the County of Albany, Intervenor-Respondent.
    Argued August 31, 1983;
    decided September 1, 1983
    POINTS OF COUNSEL

      Vincent J. McArdle, Jr., Corporation Counsel, for appellant.
    Subdivision 1 of section 2-a of the General City Law is unconstitutional under section 3 of article XIII of the Constitution. (Matter of Ross v Cohen, 283 NY 388; Matter of Burke v Cohen, 265 NY 210; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559.)

      Robert G. Lyman, County Attorney, for respondents. Section 2-a of the General City Law is constitutional.

      Thomas J. Spargo for intervenor-respondent. The scheduling of an election in November, 1983 would work a disenfranchisement of enrolled Republican voters in the City of Albany contrary to the provisions of the New York State Constitution and the Election Law.
   OPINION OF THE COURT

Per Curiam.

Subdivisions 1 and 2 of section 2-a of the General City Law are not unconstitutional in consequence of the provisions of section 3 of article XIII of the New York State Constitution. Accordingly, no vacancy in the offices of Mayor or President of the Common Council of the City of Albany requiring election before the fall of 1985 will exist by reason of the death of former Mayor Erastus Corning, 2nd.

Petitioner City Clerk of the City of Albany instituted this proceeding in the nature of mandamus to compel respondents, constituting the Albany County Board of Elections, (1) to accept his certificate that the offices of Mayor and President of the Common Council of the city are to be voted for at the general election to be conducted on November 8, 1983, and (2) to cause such election for those offices to be held. The demand is predicated on the city clerk’s claim that section 2-a of the General City Law, by which the duties of those offices devolved on the then President and President Pro Tempore of the Common Council, respectively, and they became Mayor and President of the Common Council, at the death of former Mayor Erastus Corning, 2nd, on May 28, 1983, is violative of the State Constitution insofar as it results in the present incumbents remaining in those offices beyond December 31,1983. As alternative relief, the city clerk asked, in the event that it should be determined that the mandamus proceeding does not lie, that it be converted to a declaratory judgment action and that judgment be granted declaring that the statute is void as unconstitutional.

Special Term, treating the litigation as an action for a declaratory judgment but otherwise denying the relief requested, declared that section 2-a of the General City Law is constitutional and applicable to the offices in question and that there are no vacancies in such offices requiring an election prior to the fall of 1985. A direct appeal from that judgment has been taken to this court by petitioner pursuant to CPLR 5601 (subd [b], par 2).

Critical to our decision is a careful reading of the statute and the constitutional provision that we are called on to consider. Section 2-a of the General City Law, titled “Succession to certain city offices”, insofar as relevant states:

“1. In every city in which the mayor and president or presiding officer of the local legislative body are elected at the same time and for the same term by the electors of the entire city, in case of the removal from office of the mayor, his death, inability to discharge the powers and duties of the office, resignation or absence from the city, the powers and duties of the office shall devolve upon such president or presiding officer for the residue of the term or until the disability shall cease. When the powers and duties of the office of mayor shall devolve upon such president or presiding officer for the residue of the term, he shall serve as and be the mayor.

“2. In every such city, in case of the removal from office of the president or presiding officer, his death, inability to discharge the powers and duties of the office, resignation, absence from the city or when he shall serve as and be the mayor as provided in subdivision one, the powers and duties of the office shall devolve upon the president pro tempore or vice-chairman for the residue of the term or until the disability shall cease. When the powers and duties of the office of president or presiding officer shall devolve upon such president pro tempore or vice-chairman for the residue of the term, he shall serve as and be the president or presiding officer. The provisions of this subdivision shall apply to cities in which the president or presiding officer of the local legislative body is elected at the same time and for the same term as the member selected by such body to be its president pro tempore or vice-chairman.”

Section 3 of article XIII of the Constitution, relating to “Vacancies in office”, provides: “The legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy”.

As an examination of these provisions discloses, the constitutional proscription in section 3 of article XIII has no relation to the statutory prescriptions of subdivisions 1 and 2 of section 2-a of the General City Law. The former addresses the filling of vacancies in public office; the latter, the automatic and instantaneous devolution of powers and duties of certain specified public offices to the end that there shall be no vacancies in those offices. The design of the statute is calculated to obviate a void and thus the possibility of any paralysis of municipal executive authority, however brief, which would attend the necessity for independent action to accomplish replacement. The Legislature has understandably deemed the importance of the uninterrupted availability of executive authority so urgent as to eliminate the potential risks and exposure of even a temporary hiatus in the office of Mayor or President of the Common Council.

Even if the words “filling vacancies in office” as found in the constitutional provision were to be interpreted as referring generally to succession in public office, the proscription of the Constitution would not be applicable to the provisions of the statute. The former relates only to “appointment”, a method of selection quite distinct from “election”. The differentiation between appointment and election of public officers is evident and of very great political and practical significance. The constitutional provision imposes a restriction on the term of office only of persons appointed to office. By contrast the statutory provisions address the powers and duties of elective offices.

Additionally, it is significant to recognize that the concept embodied in the statute is markedly different from that of the constitutional provision. The Constitution contemplates the discretionary choice of a person; the statute, the devolution or transfer of powers and duties to the present holder of a particular office. The person in whom the powers and duties vest pursuant to the mandate of the statute has already been identified — and by the process of election. Indeed when the voters chose the President of the Common Council in November, 1981, the choice was of one to succeed to the office of Mayor of the City of Albany in the event of the death of the then elected Mayor. Thus, the designation of the successor was mandatorily ex officio, wholly free from exposure to the practical and human risks which inevitably attend any exercise of a power of appointment or to the possible frustration of the wishes of the electorate. The successor Mayor exercises the authority and responsibilities of his office with the imprimatur of the electorate, a political base recognizably different in kind as well as dimension from that of an appointed official.

In consequence then of the dictates of the express language of section 3 of article XIII of the Constitution and of section 2-a of the General City Law, as well as in furtherance of the governmental polity undergirding both provisions, it must be concluded that nothing by way either of explicit provision or surrounding principle warrants the conclusion that subdivisions 1 and 2 of section 2-a are unconstitutional.

Accordingly, the judgment of Supreme Court declaring that subdivisions 1 and 2 of section 2-a of the General City Law are constitutional and that no vacancy in the offices of Mayor or President of the Common Council of the City of Albany requiring election before the fall of 1985 will exist in consequence of the death of Mayor Corning, should be affirmed, without costs.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur in Per Curiam opinion; Chief Judge Cooke taking no part.

Judgment affirmed, without costs.

      . The terms to which Mayor Corning and the President of the Common Council were elected in November, 1981 will continue through December 31, 1985. The President Pro Tempore was selected by the council in January, 1982 and had been elected to the council for a term expiring December 31, 1985.

      . We are not unaware of section 1 of article XIII of our State Constitution providing for the swearing in of public officers. Compliance with this provision, however, lies within the immediate reach of a Mayor or a President of a Common Council who succeeds to office by virtue of section 2-a.

      . In this perspective we note that the authority for the Legislature’s enactment of subdivisions 1 and 2 of section 2-a of the statute does not stem from any delegation under section 3 of article XIII of the Constitution but rather derives from the constitutional grant of legislative power in section 1 of article III, the source of its authority for the enactment of the General City Law.