author: Bellacosa, J.

text:
    J. L. Ivey, Jr., Respondent, v State of New York, Appellant.
    Argued November 18,1992;
    decided December 16, 1992

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Frank K. Walsh, Jerry Boone and Peter H. Schiff of counsel), for appellant.
    I. It was the intent of the Legislature to bar all claims for unjust conviction and imprisonment where claimant’s conviction was not reversed on a ground specified in Court of Claims Act § 8-b (3) (b) (ii). (Ferrer v State of New York, 136 Misc 2d 218, 136 AD2d 487; Ivey v State of New York, 138 AD2d 963; Gordon v State of New York, 141 Misc 2d 242; Forest v State of New York, 150 AD2d 214; Heiss v State of New York, 143 AD2d 67; Stewart v State of New York, 133 AD2d 112, 72 NY2d 807; Ferres v City of New Rochelle, 68 NY2d 446; New York State Bankers Assn, v Albright, 38 NY2d 430; Williams v Williams, 23 NY2d 592; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807.) II. The reversal of claimant’s conviction on the ground of prosecutorial misconduct does not constitute reversal on a ground specified in Court of Claims Act § 8-b (3) (b) (ii). (Ivey v State of New York, 138 AD2d 963; Coakley v State of New York, 150 Misc 2d 903; Llaveras v State of New York, 136 Misc 2d 171; People v Friedgood, 58 NY2d 467; Gordon v State of New York, 141 Misc 2d 242; People v Robertson, 12 NY2d 355; People v Grice, 100 AD2d 419.) III. The evidence at trial was insufficient to sustain claimant’s burden of proving by clear and convincing evidence that he did not commit any of the acts charged in the indictment. (Alexandre v State of New York, 168 AD2d 472; Solomon v State of New York, 146 AD2d 439; Rossi v Hartford Fire Ins. Co., 103 AD2d 771; Addington v Texas, 441 US 418; Ausch v St. Paul Fire & Mar. Ins. Co., 125 AD2d 43, 70 NY2d 610; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Moses v State of New York, 137 Mise 2d 1081; Reed v State of New York, 78 NY2d 1; Fudger v State of New York, 131 AD2d 136, 70 NY2d 616; Berger v City of New York, 260 App Div 402, 285 NY 723.) IV. The courts below erroneously concluded that claimant sustained his burden of proving, by clear and convincing evidence, that he did not, by his own conduct, cause or bring about his conviction. (Stevenson v State of New York, 137 Misc 2d 313; Ausderau v State of New York, 130 Misc 2d 848, 127 AD2d 980, 69 NY2d 613; Reed v State of New York, 78 NY2d 1; Lanza v State of New York, 130 AD2d 872.)

      Pusatier, Sherman & Abbott, Kenmore (Stephen F. Pusatier and Richard G. Abbott of counsel), for respondent.
    I. Ivey’s retrial and acquittal qualifies him to present a claim under the Act. (Ferrer v State of New York, 136 Misc 2d 218, 136 AD2d 487; Klemm v State of New York, 170 AD2d 438; Gordon v State of New York, 141 Mise 2d 242; Rivers v State of New York, 130 Misc 2d 544; Ausderau v State of New York, 130 Misc 2d 848, 127 AD2d 980, 69 NY2d 613; Reed v State of New York, 78 NY2d 1.) II. Ivey’s conviction was reversed due to prosecutorial misrepresentation and duress, a ground enumerated in Court of Claims Act § 8-b (3) (b) (ii). (People v Fried-good, 58 NY2d 467; People v Qualls, 70 NY2d 863; Mott v State of New York, 138 Misc 2d 916; People v Lindsay, 42 NY2d 9; People v Griffin, 29 NY2d 91; People v Coffey, 11 NY2d 142; People v Alicea, 37 NY2d 601; People v Rosario, 9 NY2d 286; People v Hawa, 13 NY2d 718; People v Consolazio, 40 NY2d 446.) III. The affirmed finding that Ivey is innocent is supported by evidence in the record. (Humphrey v State of New York, 60 NY2d 742; Reed v State of New York, 78 NY2d 1; Amend v Hurley, 293 NY 587; People v Sangamino, 258 NY 85; United States v Wade, 388 US 218; Simmons v United States, 390 US 377.) IV. The trial court properly determined that claimant sustained his burden of proving by clear and convincing evidence that he did not, by his own conduct, cause or bring about his own conviction. (Reed v State of New York, 78 NY2d 1; Lanza v State of New York, 130 AD2d 872; Coakley v State of New York, 150 Misc 2d 903; People v Ferrer, 99 AD2d 459; People v McLaughlin, 104 AD2d 829; Ausderau v State of New York, 130 Misc 2d 848, 127 AD2d 980, 69 NY2d 613; Moses v State of New York, 137 Misc 2d 1081; Stevenson v State of New York, 137 Misc 2d 313; Weiss v United States, 95 F Supp 176.)
   OPINION OF THE COURT

Bellacosa, J.

Claimant Ivey was a defendant who had been convicted after a jury trial of murder and robbery. The Appellate Division reversed and ordered a new trial, at which Ivey was acquitted. He then sued the State and won a judgment under the Unjust Conviction and Imprisonment Act (Court of Claims Act § 8-b). The Appellate Division affirmed and this Court granted leave to appeal. We also affirm, rejecting the State’s argument that Ivey is ineligible to recover under the Act because his criminal conviction had not been reversed on one of the enumerated grounds in the proviso clause of section 8-b. We hold that the limitations of the proviso clause do not deprive claimants of their day in the Court of Claims where, as here, the conviction was reversed and was followed by an acquittal after retrial.

THE CRIMINAL PROCEEDINGS

In 1976, Ivey was convicted of three counts of murder in the second degree and two counts of robbery in the first degree stemming from a late night holdup of a Buffalo gas station. The Appellate Division concluded that numerous instances of prosecutorial misconduct deprived Ivey of a fair trial. The second criminal trial, at which the testimony of a key new witness supported the inference that another individual was the culprit, ended in a jury verdict of acquittal on all charges. Ivey, having been imprisoned for approximately six years, was then released.

The new witness, Sandra Knight, had telephoned Ivey’s criminal defense attorney with information possibly helpful to Ivey on the night before summations were to be made in the first trial. The record discloses that Ivey’s defense counsel informed the trial prosecutor of Knight’s telephone call and sought assistance in investigating Knight’s story. Nothing came of this eleventh hour overture and defense counsel did not seek an adjournment or a reopening of the case to call Knight as a defense witness.

At the second criminal trial, Knight recounted the activities of her former boyfriend, Donald Brailsford, on the night of the crimes for which Ivey had been tried and convicted. Specifically, she testified that Brailsford left her apartment between 9:00 and 10:00 p.m., phoned her about 45 minutes later and asked her to bring a change of clothes, a coat and a hat to his cousin’s home, which faces the side of the gas station where the crimes occurred. According to Knight, Brailsford was out of breath when he called her. When she arrived at his cousin’s apartment, Brailsford changed his clothes. He then gave her a pizza box and the clothes he had been wearing and asked her to get her car, which he had borrowed. The car was parked behind the gas station. He told her to put the green Army jacket that was in the car underneath the back seat. Knight complied. She added that Brailsford appeared nervous while they were driving back to her apartment. Upon entering the apartment, Brailsford shaved off his moustache, took a gun out of the pizza box and cleaned it. He asked Knight for a piece of luggage in which he placed the gun, the clothes he had been wearing earlier that evening and the Army jacket. He then left the apartment and returned 5 to 10 minutes later without the luggage. The jury rendered a verdict of acquittal and Ivey was freed.

THE COURT OF CLAIMS PROCEEDING

In March 1985, Ivey sued the State pursuant to Court of Claims Act § 8-b seeking damages for unjust conviction and imprisonment. The Court of Claims denied the State’s motion for summary judgment and dismissal of the complaint, rejecting the State’s argument that a claim under section 8-b may be maintained only where a claimant’s original conviction is reversed on one of the grounds specified in the proviso clause of the statute. The Court of Claims also found, after trial, that Ivey had proven by clear and convincing evidence that he had not committed the crimes for which he was originally charged, tried, convicted and imprisoned. Finally, the court concluded Ivey had not brought about his own conviction. In affirming the judgment in favor of Ivey and against the State, the Appellate Division stated: "[i]t is not necessary that claimant’s conviction has been reversed on one of the grounds specifically enumerated in section 8-b (3) (b) (ii) of the Court of Claims Act where, as here, there was a retrial and an acquittal” (138 AD2d 963).

ANALYSIS

Section 8-b of the Court of Claims Act was enacted to provide redress to innocent persons who prove by clear and convincing evidence that they were unjustly convicted and imprisoned (Court of Claims Act § 8-b [1]). It states, in pertinent part, that a claimant may be eligible to seek relief under this statute when the

"judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the [enumerated grounds]” (Court of Claims Act § 8-b [3] [b] [ii] [emphasis added]).

In enacting section 8-b, the Legislature sought to strike a balance between the goals of compensating innocent individuals who had been unjustly convicted and imprisoned, and foreclosing frivolous suits against the State (1984 Report of NY Law Rev Commn to Governor on Redress For Innocent Persons Unjustly Convicted and Subsequently Imprisoned, 1984 NY Legis Doc No. 65, reprinted in 1984 McKinney’s Session Laws of NY, at 2928). This effort was reflected to some extent by the Legislature’s tacking on the proviso clause to section 8-b (3) (b) (ii). The explicit limitations in the proviso clause were added despite the absence of a recommendation to do so by the Law Revision Commission (Report of NY Law Rev Commn, 1984 McKinney’s Session Laws of NY, at 2928-2930).

As noted by the Law Revision Commission, the "linchpin” of the statute is innocence (Report of NY Law Rev Commn, 1984 McKinney’s Session Laws of NY, at 2930). Although an acquittal is not, ipso facto, equivalent to a determination of innocence, generally or for purposes of this remedial statute (Reed v State of New York, 78 NY2d 1, 7), it is a useful and relevant indicator of innocence, just as the grounds enumerated in the proviso clause are (see, Ferrer v State of New York, 136 Misc 2d 218, 223, affd 136 AD2d 487). Indeed, as noted by the Court of Claims in Ferrer, even the Law Revision Commission acknowledged that "none of the grounds for reversal or vacatur under State law exactly correlate with innocence” (136 Misc 2d, at 223, supra).

The heart of the State’s case, after all, is the proviso clause. The State argues that the enactment of the proviso clause after submission of the Law Revision Commission’s report and its location as a trailer to subdivision (3) (b) (ii) are indicative of the Legislature’s intent that the proviso clause should apply to all avenues of relief, including where there has been a reversal, retrial and acquittal. This argument does not survive well-settled statutory construction analysis and is also not dispositive, standing alone, in the application of this structurally complicated statute to this case.

The State acknowledges that its tendered interpretation requires that we ignore the phrase in the proviso clause, "and the accusatory instrument [was] dismissed”. That phrase, contends the State, would otherwise render the statute internally contradictory and would lead to absurd results if left operative and if given effect. The State must simultaneously recognize, however, that splicing the statute together in its proffered version would transgress the well-established precept that every part of a statute is to be given effect and meaning, and no word may be excised by the courts in such a way as to deprive it of meaning and effect (see, Sanders v Winship, 57 NY2d 391, 396; Smith v State of New York, 181 AD2d 227; Ferrer v State of New York, 136 Misc 2d 218, 221, affd 136 AD2d 487, supra; see also, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98 [a]; § 231 [1971]). In essence, the State is asking the Court to rewrite, not just interpret, the statute. This we may not do.

The awkward location and punctuation of the proviso clause contribute to the difficulty of discerning and understanding its proper and intended meaning. However, since the clause within the proviso "and the accusatory instrument [was] dismissed” is set off by commas, basic rules of grammar and punctuation might suggest that the proviso requires that both the reversal and the dismissal be based on one of the grounds specified in the proviso (see, Tyrrell v Mayor of City of N. Y., 159 NY 239, 242; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 253, 254). But "dismissal”, as that important term of art is employed here, is a technically and theoretically alien notion where a new trial is ordered and held and results in an acquittal. Plainly then, the State’s proposed re-section of the statutory parts would excise a substantive clause and render it meaningless and useless. The State has conceded as much and, if that were not a high enough hurdle in statutory construction, such an approach appears also to clash with the underlying purpose of the statute — providing a remedy for recompense of innocent victims of State prosecutorial power.

We hold, therefore, that the grounds enumerated in the proviso do not exclude claimants who have won a reversal of a conviction and an acquittal after retrial. Thus, there is not a per se disqualification in such a situation. We note, correspondingly, that neither is there a per se entitlement to recovery. Claimants must still prove innocence by clear and convincing evidence, and that their convictions were not caused by their own conduct.

We believe that our interpretation is consistent with the legislative intent of section 8-b (Report of NY Law Rev Commn, 1984 McKinney’s Session Laws of NY, at 2901 et seqj. We draw additional sustenance for our view from the reasoning of the First and Second Departments on this issue, as well as that of the Fourth Department, which we here affirm (see, Ferrer v State of New York, 136 Misc 2d 218, affd 136 AD2d 487, supra; Klemm v State of New York, 170 AD2d 438; see also, Dozier v State of New York, 134 AD2d 759).

Our holding that the proviso clause does not control where, as here, there has been a retrial and an acquittal, renders it unnecessary to address or decide claimant Ivey’s fallback argument that the prosecutorial misconduct which resulted in reversal of his conviction constituted the kind of fraud or duress that is within the enumerated grounds of section 8-b (3) (b) (ii).

Ivey has also satisfied the remaining requirements of section 8-b. Notably, evidence presented by Ivey in the Court of Claims included the "other culprit” testimony of Knight, Ivey’s alibi testimony and the supporting testimony of his alibi witnesses. Added to that are the discrepancies between the pretrial descriptions and the trial testimony of the eyewitnesses, the differences between Ivey’s appearance and the description of the perpetrator given by the eyewitnesses, and the testimony of four disinterested witnesses that Ivey had been totally bald on the day of the crimes, while the perpetrator was described as having long hair. This record evidence provides support for the conclusions of the fact-finder court and the intermediate appellate court that Ivey did not commit the crimes charged. Thus, the affirmed findings are beyond our review and cannot be disturbed by this Court (Humphrey v State of New York, 60 NY2d 742).

The State’s final argument that Ivey caused his original criminal conviction, due to his attorney’s failure to seek an adjournment or to call Knight as a witness in the first trial, is unavailing. Claimant Ivey, under the circumstances of this case, may not be found to have personally done something which caused the original conviction. Moreover, this case and record do not rise to the level of the potentially more difficult situation where the acts of a claimant may be intertwined with the conduct of others as the proximate cause of conviction, perhaps constituting the personal involvement prohibited by the statute. However, we need not and do not decide that question.

In sum, we conclude that our interpretation of this statute is supported by traditional statutory construction principles, basic rules of statutory organization and history, and the underlying purposes of the remedial statute. This approach renders claimant eligible at least to maintain a claim and to attempt to satisfy the other relevant requirements. If, as the State urges, the Legislature intended more restrictive threshold eligibility requirements for this remedial statute, it failed to accomplish that goal in this enactment. The State’s remedy in such circumstances is to petition the Legislature with its concerns for future redress. The present award against the State is properly rooted in the remedy, as prescribed.

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

Judges Kaye, Titone, Smith and Weiss concur; Acting Chief Judge Simons and Judge Hancock, Jr., taking no part.

Order affirmed, with costs.

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


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    Timothy J. Sherman, an Infant, by His Parent and Natural Guardian, Laura Sherman, et al., Appellants, v David J. Robinson, an Infant, by His Parent and Natural Guardian, James Robinson, et al., Defendants, and Alaskan Oil, Inc., Doing Business as AOK Store, Respondent.
    Argued November 18,1992;
    decided December 21, 1992

      POINTS OF COUNSEL

      Hancock & Estabrook, Syracuse (Michael A. Oropallo of counsel), for appellants.
    I. In a personal injury action, premised on sections 11-100 and 11-101 of New York’s General Obligations Law, which is to be read in conjunction with section 65 of New York’s Alcoholic Beverage Control Law, a viable cause of action is set forth for an "indirect” sale of alcohol beverages to a minor. (Powers v Niagara Mohawk Power Corp., 129 AD2d 37; Montgomery v Orr, 130 Misc 2d 807; Patton v Camrike, 510 F Supp 625; Matter of Beverly Lanes v Rohan, 12 AD2d 156, 11 NY2d 909; Matter of Sheibar v New York State Liq. Auth., 4 AD2d 442, 4 NY2d 984; Matter of James G. Karas, Inc. v Hostetter, 29 AD2d 947; Matter of Maniccia v State Liq. Auth., 5 AD2d 929; People v Griesebacker, 6 AD2d 679; Pantote Big Alpha Foods v Schefman, 121 AD2d 295; Matalavage v Sadler, 77 AD2d 39.) II. This Court should adopt the reasoning articulated in a majority of States, that recognize a cause of action in common-law negligence, particularly as it applies to minors. (Hayes v Phelan, 4 Hun 733; Sheehy v Big Flats Community Day, 73 NY2d 629; D’Amico v Christie, 71 NY2d 76; Allen v County of Westchester, 109 AD2d 475; Dynarski v U-Crest Fire Dist., 112 Misc 2d 344; Matter of Beverly Lanes v Rohan, 12 AD2d 156.) III. The failure of a vendor of alcohol to follow their internal procedures for preventing the sale of alcohol to minors, constitutes a viable cause of action in common-law negligence. (Ward v Newfield Cent. School Dist. No. One, 66 AD2d 968; Danbois v New York Cent. R. R. Co., 12 NY2d 234; Haber v Cross County

      Hosp., 37 NY2d 888; Pollock v Collipp, 124 AD2d 647; Mertsaris v 73rd Corp., 105 AD2d 67.)

      Sugarman, Wallace, Manheim & Schoenwald, Syracuse (Laura A. Alderman of counsel), for respondent.
    I. To assert a cause of action predicated on violation of General Obligations Law §§ 11-100 or 11-101, the tortfeasor and the purchaser or recipient of the alcohol must be one and the same. (D'Amico v Christie, 71 NY2d 76; MacGilvary v Denino, 149 AD2d 571; Delamater v Kimmerle, 104 AD2d 242; Wright v Sunset Recreation, 91 AD2d 701; Powers v Niagara Mohawk Power Corp., 129 AD2d 37; Lee v Holloway, 146 Misc 2d 455; Stambach v Pierce, 136 AD2d 329; Smith v Guli, 117 AD2d 1017.) II. AOK had no affirmative duty to investigate the circumstances surrounding Relf s purchase of alcohol, and alleged internal policies or procedures did not create such duty. (Matter of Maniccia v State Liq. Auth., 5 AD2d 929; Wright v Sunset Recreation, 91 AD2d 701; Schirmer v Yost, 60 AD2d 789; Paul v Hogan, 56 AD2d 723; Danbois v New York Cent. R. R. Co., 12 NY2d 234.)
   OPINION OF THE COURT

Kaye, J.

This appeal asks whether a convenience store selling alcoholic beverages may be held liable, under statutory or common law, for personal injuries resulting from an indirect sale of alcohol to a minor. We answer that question in the negative, as did the motion court and Appellate Division.

On the evening of June 17, 1988, Michael Relf, a minor, presenting a driver’s license he had found, purchased a quantity of beer and wine coolers from a convenience store operated by defendant AOK. Relf allegedly purchased the alcoholic beverages with money pooled from several other teenagers— including David Robinson and plaintiff Timothy Sherman— who waited in a car parked in the lot outside the store. There was evidence that after the purchase, the boys parked at the side of a road for a half hour, then proceeded to a drive-in movie, and later attended a party. In the early morning hours of June 18, with Robinson driving and Sherman a passenger, the car was involved in an accident, severely injuring Sherman. At the time of the accident, Robinson had an elevated blood-alcohol level, allegedly due to his consumption of the beer purchased by Relf.

Plaintiffs contend that AOK’s sale of alcoholic beverages to Relf renders AOK liable for Sherman’s injuries under statutory or common law because by selling beer to Relf (a minor) AOK caused or permitted the sale of beer to Robinson (also a minor), who caused Sherman’s injuries. We agree with the comprehensive writing of Justice Hurlbutt, affirmed by the Appellate Division, which dismissed the complaint against AOK on summary judgment.

We first consider plaintiffs’ claims under General Obligations Law §§ 11-100 and 11-101, which are an exception to the common-law rule that a person consuming alcoholic beverages is solely responsible for injuries caused by his or her own intoxication (see, D’Amico v Christie, 71 NY2d 76, 83).

More than a century ago, the Legislature enacted the Dram Shop Act to provide a private right of action against a seller of alcohol for injuries caused by intoxication resulting from such sale (L 1873, ch 646). In its current incarnation, the Act provides a cause of action for injuries caused by "any intoxicated person” against a person who unlawfully sells alcoholic beverages to or unlawfully assists in procuring alcoholic beverages for "such intoxicated person.” (General Obligations Law § 11-101 [l].) The Dram Shop Act applies only to the commercial sale of intoxicating liquors (D’Amico v Christie, supra).

In 1983, the Legislature supplemented the Dram Shop Act by imposing responsibility on any provider unlawfully furnishing alcoholic beverages to minors, or unlawfully assisting in procuring such beverages for them, when "such [minor person’s] intoxication” causes plaintiff’s injury (General Obligations Law § 11-100 [l]; see also, Sheehy v Big Flats Community Day, 73 NY2d 629). This statute, "intended to parallel those [provisions] contained in New York’s Dram Shop Statute” (Letter from Senator William T. Smith explaining Senate Bill S 6502-B, July 22, 1983, Governor’s Bill Jacket, L 1983, ch 641), extended dram-shop-type liability without the necessity of a commercial sale.

One additional provision completes the statutory setting. Liability under sections 11-100 and 11-101 attaches only in the event of an "unlawful” sale or delivery of alcohol. That term is defined in Alcoholic Beverage Control Law § 65 (1): "No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to * * * [a]ny person, actually or apparently, under the age of twenty-one years.” Irrespective of knowledge or intent, under section 65 (1) a licensee may suffer administrative sanctions, such as suspension of its liquor license, for furnishing alcohol to minors (see, e.g., Matter of Erin Wine & Liq. Store v O’Connell, 283 App Div 443, 447, affd 307 NY 768). However, the regulatory provision does not create a private right of action (Moyer v Lo Jim Cafe, 19 AD2d 523, affd 14 NY2d 792). That right is found — and circumscribed— in General Obligations Law §§ 11-100 and 11-101.

Plaintiffs urge that the three statutes, read together, establish a legislative purpose to prevent the sale of alcoholic beverages to minors that should encompass the present situation. But plaintiffs’ argument overlooks the express language of the General Obligations Law defining the private right of action which, as an exception to the common law, must be read narrowly and not enlarged beyond its borders (D’Amico v Christie, 71 NY2d, at 83, supra).

Most notably, the General Obligations Law — unlike the regulatory provision — is explicit in limiting liability for injuries caused by an intoxicated minor to the unlawful supply of alcoholic beverages to that person (General Obligations Law § 11-100 [1]; § 11-101 [1]). The plain language of the enactments specifies that the individual who by reason of intoxication causes injury must be the very person to whom defendant furnished the alcoholic beverages, or for whom they were procured.

Additionally, unlike the Alcoholic Beverage Control Law provision, liability under General Obligations Law § 11-100 may be imposed only on a person who knowingly causes intoxication by furnishing alcohol to (or assisting in the procurement of alcohol for) persons known or reasonably believed to be underage. While section 11-101 does not explicitly refer to knowledge, that same requirement must be inferred because the legislative history makes plain that section 11-100 was intended to parallel the Dram Shop Act (Letter from Assemblyman John F. Duane explaining Senate-Assembly Bill S 6502-A, A 7236-A, July 10, 1983, Governor’s Bill Jacket, L 1983, ch 641).

Here it is undisputed that defendant did not knowingly sell, furnish or assist in procuring alcoholic beverages to or for Robinson, the intoxicated tortfeasor; the transaction was with Relf. Nor were there facts or circumstances from which the requisite knowledge could reasonably be inferred — for example, Robinson and Relf appearing together at the check-out counter, with Relf taking money from Robinson or handing him the beer (see, Dudley v Parker, 132 NY 386; Stewart v Taylor, 167 AD2d 846, lv denied 77 NY2d 805; Lee v Holloway, 146 Misc 2d 455, 459).

Plaintiffs nonetheless insist that the sale to Relf was in effect a sale to Robinson because of the quantity of alcoholic beverages purchased by Relf. According to plaintiffs, that fact alone made it likely that the alcohol was to be consumed by more than one person, and had defendant investigated the parking lot, it would have discovered the other teenagers, including Robinson, in the car. That argument is premised on cases seeking administrative sanctions under Alcoholic Beverage Control Law § 65, for on-premises activity, where conduct constituting the alleged delivery of alcohol to a minor was "open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented.” (Matter of 4373 Tavern Corp. v New York State Liq. Auth., 50 AD2d 855, 856; see also, Matter of Beverly Lanes v Rohan, 12 AD2d 156, revd on dissenting opn 11 NY2d 909; Matter of Sheibar v New York State Liq. Auth., 4 AD2d 442, affd 4 NY2d 984.)

Those cases are immediately distinguishable from the present action seeking damages under General Obligations Law §§ 11-100 and 11-101 and involving activity that occurred off the premises. Nothing in the General Obligations Law imposed upon defendant a duty, merely because a quantity of alcoholic beverages was purchased, to investigate possible ultimate consumers in the parking lot beyond its doors.

Relief under the common law is similarly unwarranted. "|T]n order for plaintiffs to prevail on [a] claim of common-law negligence, there must first be a legal duty owed by defendant to them. Foreseeability of harm is alone not enough.” (D’Amico v Christie, 71 NY2d, at 87, supra.) The legal duty that a store selling alcoholic beverages owes to a third party is limited by General Obligations Law § 11-101 and did not include a duty to investigate possible indirect sales. While plaintiff cites several decisions from other jurisdictions recognizing liability in similar situations, those jurisdictions either do not have dram shop statutes or their enactments are materially different from General Obligations Law §§ 11-100 and 11-101. In this State, " 'the very existence of a Dram Shop Act constitutes a substantial argument against expansion of the legislatively-mandated liability.’ ” (Id., at 86 [quoting Kelly v Gwinnell, 96 NJ 538, 554].) Given the Legislature’s choice not to provide liability for the indirect sale in this case, we decline to expand the common law to impose such liability.

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

Acting Chief Judge Simons and Judges Titone, Bellacosa and Smith concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs.

      . The subdivision reads in full: "Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawfully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.”

      . This subdivision reads in full: "Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.”

      . We reject plaintiffs’ argument that defendant’s company manual created a separate duty of care. Violation of a company’s internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence (Longacre v Yonkers R. R. Co., 236 NY 119,125).


author: Hancock, Jr., J.

text:
    Marjorie L. Thoreson, Also Known as Anneka DiLorenzo, Appellant-Respondent, v Penthouse International, Ltd., et al., Respondents-Appellants.
    Argued November 17,1992;
    decided December 21, 1992

      POINTS OF COUNSEL

      Murray Schwartz, New York City, and Davida S. Perry for appellant-respondent.
    I. In addition to the language alone being adequate, the type of broad language in section 297 (9) of the Executive Law has been interpreted by New York courts and other courts to permit punitive damages, although not specifically provided for in the statutes interpreted. (New York State Bankers Assn, v Albright, 38 NY2d 430; Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114; Murphy v American Home Prods. Corp., 58 NY2d 293; Matter of Albano v Kirby, 36 NY2d 526; Department of Welfare v Siebel, 6 NY2d 536, 361 US 535; Matter of McNerney v City of Geneva, 290 NY 505; Price v Price, 69 NY2d 8; Matter of Bath & Hammondsport R. R. Co. v New York State Dept, of Envtl. Conservation, 73 NY2d 434; Green v Fischbein Olivieri Rozenholc & Badillo, 119 AD2d 345; Matter of Di Brizzi [Proskauer], 303 NY 206.) II. Principles of statutory construction compel a finding that section 297 (9) of the Executive Law authorizes an award of punitive damages. (Surace v Danna, 248 NY 18; People v Ahearn, 196 NY 221; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Matter of Capone v Weaver, 6 NY2d 307; Matter of Meyer, 209 NY 386; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Sanders v Winship, 57 NY2d 391; People v Ryan, 274 NY 149; Ferres v City of New Rochelle, 68 NY2d 446; People v White, 73 NY2d 468.) III. Common-law tort remedies available to victims of sexual harassment are cumulative and were intended by the Legislature to be subsumed within section 297 (9) of the Executive Law. (Matter of Ziegler v Cassidy’s Sons, 220 NY 98; People v King, 61 NY2d 550; Hechter v New York Life Ins. Co., 46 NY2d 34; Micari v Mann, 126 Misc 2d 442.)

      Proskauer Rose Goetz & Mendelsohn, New York City (Bettina B. Plevan and Myron D. Rumeld of counsel), and Carb, Luria, Glassner, Cook & Kufeld, New York City (Jeffrey H. Daichman of counsel), for respondents-appellants.
    I. The evidence did not support a finding of sexual harassment under the New York State Human Rights Law. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709, 109 AD2d 1111; Watts v New York City Police Dept., 724 F Supp 99; Carrero v New York City Hous. Auth., 890 F2d 569; Koster v Chase Manhattan Bank, 687 F Supp 848; Downes v Federal Aviation Admin., 775 F2d 288; Jones v Flagship Inti., 793 F2d 714, 479 US 1065; Reichman v Bureau of Affirmative Action, 536 F Supp 1149; Manno v Mutual Benefit Health & Acc. Assn., 18 Misc 2d 80; Austin Instrument v Loral Corp., 35 AD2d 387, 29 NY2d 124; Meritor Sav. Bank v Vinson, 477 US 57.) II. The award of compensatory damages is not supported by the evidence. (Matter of Empbanque Capital Corp. v White, 158 AD2d 686; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207; Batavia Lodge No. 196 v New York State Div. of Human Rights, 35 NY2d 143; Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442.) III. Punitive damages are not available under the New York Human Rights Law. (Tyler v Bethlehem Steel Corp., 958 F2d 1176; Conan v Equitable Capital Mgt. Corp., 774 F Supp 209; Drinkhouse v Parka Corp., 3 NY2d 82; de Minicis v 148 E. 83rd St., 20 AD2d 236, 15 NY2d 432; Brody v Leamy, 90 Misc 2d 1; Broughton v Dona, 101 AD2d 897; Murphy v American Home Prods. Corp., 58 NY2d 293; Matter of State Div. of Human Rights v Luppino, 35 AD2d 107; Raymond Concrete Pile Co. v Federation Bank & Trust Co., 288 NY 452; People ex rel. Capalongo v Howard, 87 AD2d 242.)

      George W. Madison, New York City, Herbert Semmel and Ellen M. Saideman for Association of the Bar of the City of New York, amicus curiae.

    I. Judicial awards of punitive damages are a necessary and integral part of the broad remedies authorized by the Legislature to assure equal opportunity and the elimination of sexual harassment and other forms of discrimination. (Sabol & Rice v Poughkeepsie Galleria Co., 175 AD2d 555; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Walker v Sheldon, 10 NY2d 401; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392; Dias v Sky Chefs, 919 F2d 1370; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207; Matter of Consolidated Edison Co. v New York State Div. of Human Rights, 77 NY2d 411; Matter of Lutheran Social Servs. v State Div. of Human Rights, 142 AD2d 950, 74 NY2d 824; Matter of New York State Dept, of Correctional Servs. v McCall, 109 AD2d 953; Kathleen Foley, Inc. v Gulf Oil Corp., 12 AD2d 644, 10 NY2d 859.) II. Punitive damages in judicial enforcement of the Human Rights Law are consistent with the statutory scheme of separate enforcement mechanisms through the courts and the Division of Human Rights. (Murphy v American Home Prods. Corp., 58 NY2d 293; Matter of New Jersey Fid. & Plate Glass Ins. Co. v Van Schaick, 236 App Div 223, 261 NY 521; Seitzman v Hudson Riv. Assocs., 143 Misc 2d 1068.)

      Dorchen A. Leidholdt, New York City, and Wendy C. Lecker for Women’s Bar Association of the State of New York and another, amici curiae.

    I. The Court below correctly sustained the trial court’s finding of quid pro quo sexual harassment. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709; Tomkins v Public Serv. Elec. & Gas Co., 568 F2d 1044; Barnes v Costle, 561 F2d 983; Watts v New York City Police Dept., 724 F Supp 99; Henson v City of Dundee, 682 F2d 897; Foster v Chase Manhattan Bank, 687 F Supp 848; Hicks v Gates Rubber Co., 833 F2d 1406; Chamberlin v 101 Realty, 915 F2d 777; Lipsett v University of Puerto Rico, 864 F2d 881; Barbetta v Chemlawn Servs. Corp., 669 F Supp 569.) II. The record supports a finding that defendant subjected plaintiff to a sexually hostile work environment. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709; Meritor Sav. Bank v Vinson, 477 US 57; Bundy v Jackson, 641 F2d 934; Lopez v S.B. Thomas, Inc., 831 F2d 1184; Bennett v New York City Dept, of Corrections, 705 F Supp 979; Danna v New York Tel. Co., 752 F Supp 594; Ellison v Brady, 924 F2d 872; Snell v Suffolk County, 782 F2d 1094; Rogers v Equal Empl. Opportunity Commn., 454 F2d 234; Andrews v City of Philadelphia, 895 F2d 1469.) III. Plaintiff provided sufficient evidence that defendant’s harassment was unwelcome. (Meritor Sav. Bank v Vinson, 477 US 57; Bundy v Jackson, 641 F2d 934; Henson v City of Dundee, 682 F2d 897; Snell v Suffolk County, 782 F2d 1094; Campbell v Kansas State Univ., 780 F Supp 755; Hicks v Gates Rubber Co., 833 F2d 1406; Babcock v Frank, 729 F Supp 279; Barbetta v Chemlawn Servs. Corp., 669 F Supp 569; Rabidue v Osceola Ref. Co., 805 F2d 611; Price Waterhouse v Hopkins, 490 US 228.) IV. Plaintiff did not "assume the risk” of a sexually hostile workplace. (Bennett v Corroon & Black Corp., 845 F2d 104; Walker v Ford Motor Co., 684 F2d 1355; Robinson v Jacksonville Shipyards, 760 F Supp 1486.) V. The compensatory damage award should be affirmed. (Claridge Gardens v Menotti, 160 AD2d 544; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207; Batavia Lodge No. 196 v New York State Div. of Human Rights, 35 NY2d 143; Cullen v Nassau County Civ. Serv.

      Commn., 53 NY2d 492; Matter of Club Swamp Annex v White, 167 AD2d 400; Matter of Board of Educ. v McCall, 108 AD2d 855; Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442; Matter of Northern Orchard Co. v State Div. of Human Rights, 161 AD2d 846.)

      Nadine Taub, of the New Jersey Bar, admitted pro hac vice, for Women’s Rights Litigation Clinic of Rutgers Law School-Newark and another, amici curiae.

    I. The trial court’s findings of sexual harassment, affirmed by the Court below, must be upheld by this Court. (Rudow v New York City Commn. on Human Rights, 123 Misc 2d 709, 109 AD2d 1111, 66 NY2d 605; Matter of Salvatore v New York State Div. of Human Rights, 118 AD2d 715; Matter of State Univ. of New York v State Human Rights Appeal Bd., 81 AD2d 688, 55 NY2d 896; Claridge Gardens v Menotti, 160 AD2d 544; Simon v Electrospace Corp., 28 NY2d 136; Padula v State of New York, 48 NY2d 366.) II. Plaintiff’s ultimate compliance with defendants’ sexual demands in no way diminishes her right to recover. (Meritor Sav. Bank v Vinson, All US 57; Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492; Micari v Mann, 126 Misc 2d 422; Roy v Hartogs, 85 Misc 2d 891; Laurie Marie M. v Jeffrey T. M, 159 AD2d 52.) III. Interpretations of the New York Executive Law that deny compensation to victims of sexual harassment who have engaged in previous sexual activity are based on archaic stereotypes and must be rejected. (Meritor Sav. Bank v Vinson, All US 57; Bums v McGregor Elec. Indus., 955 F2d 559; People v Crawford, 143 AD2d 141; Bundy v Jackson, 641 F2d 934.)
   OPINION OF THE COURT

Hancock, Jr., J.

This appeal presents a question of statutory construction which we have not addressed: whether a person aggrieved by a discriminatory practice in violation of the Human Rights Law may recover punitive damages in a court action brought pursuant to Executive Law § 297 (9). Based on our analysis of the statutory language and the relevant legislative history, we conclude that such damages are not recoverable.

I

Plaintiff — alleging sexual harassment in violation of the Human Rights Law — brought an action in Supreme Court pursuant to Executive Law § 297 (9) against her former employer, Penthouse International, Ltd., and its chairman and principal shareholder, Robert Guccione, the publisher of Penthouse Magazine. After a nonjury trial, the court found that defendants had exploited plaintiff as an employee by, among other things, coercing her, as an implicit condition of her employment, into having sexual liaisons with two of Guccione’s business associates. The court granted plaintiff $60,000 for compensatory and $4,000,000 for punitive damages.

A majority at the Appellate Division found sufficient evidence in the record to support the conclusion of Supreme Court that plaintiff was the victim of quid pro quo sexual harassment and, with one Justice dissenting, affirmed the award of compensatory damages (see, Thoreson v Penthouse Intl., 179 AD2d 29, 31). The Appellate Division, however, held unanimously that punitive damages were not recoverable and vacated that part of the award. Both plaintiff and defendants have appealed to this Court by leave of the Appellate Division.

We agree with the majority at the Appellate Division that " 'the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses’ ” (id., at 31 [quoting Claridge Gardens v Menotti, 160 AD2d 544, 544-545]). Based on our review of the record, we hold, as did the Appellate Division majority, "that the totality of the circumstances, as perceived by the Trial Justice from the testimony, [permits] the conclusion that plaintiff was the victim of quid pro quo sexual harassment” (id., at 31) and that "it cannot be said that the amount of the compensatory damages awarded by the Trial Justice is without foundation” (id., at 31). We, therefore, affirm the compensatory damages award. Further discussion on this point is unnecessary.

The only question to be addressed is whether punitive damages are permissible in a statutory action under Executive Law § 297 (9). For reasons which follow, we concur with the Appellate Division that such damages are not permitted and, accordingly, affirm that portion of the order also.

II

In approaching the subject of punitive damages in a court action for Human Rights Law violations, it must be understood that we are discussing an action to enforce substantive legal rights and duties created solely by statute. When it enacted Executive Law § 297 (9) to provide a judicial remedy for discriminatory practices in addition to the existing administrative remedies, the Legislature created a new statutory cause of action not previously cognizable at common law (see, Murphy v American Home Prods. Corp., 58 NY2d 293, 307; Matter of State Div. of Human Rights v Luppino, 35 AD2d 107, 112 [Hopkins, J., dissenting in part], revd sub nom. State Comma, for Human Rights v Speer, 29 NY2d 555).

Thus, to determine whether punitive damages are legally permissible in a court action we look to the statute — not to whether the nature of the wrong alleged would permit recovery under traditional concepts of punitive damages in tort law (see, e.g., Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 203-204). It is settled that if an aggrieved person seeks relief for discriminatory practices before the State Division of Human Rights rather than in a court of law, punitive damages are not allowed (see, Executive Law § 297 [4] [c]; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207,. 216). The precise question before us, then, is: did the Legislature, in creating the cause of action in Executive Law § 297 (9), intend that an aggrieved person could recover punitive damages in a court action when, if that person had chosen the administrative alternative, such damages could not be recovered?

In searching for the legislative intent we, of course, first examine the words of the statute both for their meaning as used in the specific section and in their context as part of the statutory scheme (see, Price v Price, 69 NY2d 8, 13). Here, the particular language to be interpreted is:

"Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter” (Executive Law § 297 [9] [emphasis added]).

From the statutory language, it is evident that the word "damages” relates to one of the "remedies” for which a person "aggrieved by” an unlawful practice "shall have a cause of action”. Nothing in the statute indicates that the Legislature, in making legal remedies available in a judicial proceeding, contemplated that the courts would grant relief for a purpose other than alleviating or rectifying the harm done to the person aggrieved by the discrimination. Certainly, no language suggests that the Legislature intended to authorize punitive relief in the nature of a fine for the purpose of punishing the wrongdoer or deterring similar conduct by others. Punitive damages, it has been held, are to:

"serve as a warning to others. They are intended as punishment for gross misbehavior for the good of the public and have been referred to as 'a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine’. Punitive damages are allowed on the ground of public policy and not because the plaintiff had suffered any monetary damages for which he is entitled to reimbursement; the award goes to him simply because it is assessed in his particular suit. The damages may be considered expressive of the community attitude towards one who wilfully and wantonly causes hurt or injury to another” (Reynolds v Pegler, 123 F Supp 36, 38 [SD NY 1954], affd 223 F2d 429 [2d Cir 1955], cert denied 350 US 846 [quoted in Toomey v Farley, 2 NY2d 71, 83]; see, Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 203-204, supra).

In administrative proceedings before the State Division, the purpose of the permissible remedies is solely to right the wrong done to the aggrieved person, not to punish the wrongdoer. This is reflected in the statute itself which limits the relief available to the aggrieved person to measures which will remedy the injurious effect of the discriminatory practice such as requiring that the practice cease (Executive Law § 297 [4] [c] [i]), or that an aggrieved employee be rehired or upgraded (§ 297 [4] [c] [ii]), or that "compensatory damages” be awarded (§ 297 [4] [c] [iii]).

That the Legislature has consistently been concerned with rectifying the wrong to the injured party caused by the discriminatory practice — not punishing the transgressor — is borne out by the relevant history of the Human Rights Law from the time of its original enactment in 1951 (L 1951, ch 800). For example, the report of the Governor’s committee recommending the adoption of the 1968 amendment authorizing aggrieved persons to bring court actions (Executive Law § 297 [9]) makes it plain that the measure was designed to give aggrieved persons "a right of action in a court of competent jurisdiction for damages caused by such discriminatory practice” (emphasis added) as an alternative to a proceeding before the Division. Significantly, in 1982 the Legislature rejected the recommendation of the State Assembly Subcommittee on Human Rights that it adopt an amendment empowering the State Division “to award exemplary damages for willful and persistent conduct to prevailing complainants in human rights cases” (In the Pursuit of Justice, Report of NY State Assembly Subcommittee on Human Rights [Mar. 25, 1982], at 10).

"Recommendation: Aggrieved persons should have a private cause of action for damages or equitable relief as an alternative to a proceeding before the Division.
"The Committee recommends that any individual subjected to a discriminatory practice should have a right of action in a court of competent jurisdiction for damages caused by such discriminatory practice or other appropriate relief, including the relief set forth in the proposed Human Rights Law. Although we would expect most aggrieved persons to use the less formal administrative procedures of the Division or a local human rights agency, they should not be required to do so” (Governor’s Committee Report, op. cit., at 41).

Finally, in a development which confirms that the Legislature never contemplated punitive damages as an appropriate remedy, in 1991 it amended the Human Rights Law (L 1991, ch 368, § 6) to add a specific provision for the award of punitive damages not to exceed the amount of $10,000, in cases of housing discrimination only (Executive Law § 297 [4] [c] [iv]). The logical inference, of course, from the Legislature’s action in expressly permitting punitive damages in housing cases is that such damages were not then recoverable for discrimination in other areas including employment (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 240 [expressio unius est exclusio alterius]). Indeed, from the legislative history it appears that the inference is justified. The amendment was adopted at the instance of the State Division of Human Rights so as to bring the Human Rights Law into compliance with the applicable Federal Fair Housing Amendments Act (see, 42 USC § 3601 et seq.). In its memorandum recommending adoption of section 297 (4) (c) (iv), the State Division, in commenting on existing law, noted: "At present the Human Rights Law * * * [p]ermits only compensatory damages to aggrieved persons” (1991 McKinney’s Session Laws of NY, at 2030, 2031 [emphasis added]).

We thus conclude that permitting an aggrieved person to recover punitive damages in a court action would be incompatible with the nature of the remedial relief which the Legislature has consistently deemed appropriate for violations of the Human Rights Law. It would seem highly improbable that the Legislature in adopting Executive Law § 297 (9) could have intended to permit the recovery of punitive damages in a court proceeding when that relief is expressly excluded in a proceeding before the State Division. Such a construction of the statute would inevitably encourage aggrieved persons to avoid the administrative channel before the State Division and to bring their complaints instead in court proceedings where they might collect punitive damages. No reason has been suggested as to why the Legislature would have intended this consequence; on the contrary, the history surrounding the addition of section 297 (9) indicates that this was not its purpose and that it was expected that after its adoption "most aggrieved persons [would continue] to use the less formal administrative procedures of the Division or a local human rights agency” (Governor’s Committee Report, op. cit., at 41).

In sum, we agree with the Appellate Division that punitive damages are not permitted in a court action pursuant to Executive Law § 297 (9) (accord, Tyler v Bethlehem Steel Corp., 958 F2d 1176, 1190-1191 [2d Cir 1992]; Conan v Equitable Capital Mgt. Corp., 774 F Supp 209, 211 [SD NY 1991]).

The order of the Appellate Division should be affirmed, without costs.

Acting Chief Judge Simons and Judges Titone, Bellacosa and Smith concur; Judge Kaye taking no part.

Order affirmed, without costs.

       The Report of the Governor’s Committee to Review New York Laws and Procedures in the Area of Human Rights (Mar. 27,1968) part V (A), entitled "Remedies Available to Complainants” states:


author: Titone, J.

text:
    In the Matter of Long Island Pine Barrens Society, Inc., et al., Respondents, v Planning Board of the Town of Brookhaven et al., Appellants, and Planning Board of the Town of Southampton et al., Respondents. Breskel Shopping Center Associates et al., Intervenors-Appellants.
    Argued October 22,1992;
    decided November 24, 1992

      POINTS OF COUNSEL

      Richard A. Ehlers, Riverhead, for Planning Board of the Town of Riverhead, appellant.
    I. Petitioners-respondents have not stated a cause of action under ECL article 55. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193.) II. ECL article 57 does not provide an integrated plan mandating cumulative impacts. III. Petitioners-respondents have not stated a cause of action pursuant to CPLR article 78. (Matter of Save the Pine Bush v Planning Bd., 83 AD2d 741.) IV. There is no legal nexus between the two decisions of respondent Riverhead Planning Board and the other 224 unrelated projects named in the petition. (Matter of East Side Studios v Ross, 191 Misc 815.) V. There is no law permitting the Riverhead Planning Board to refer the Rinzo and Podolsky subdivisions to the Towns of Brookhaven or Southampton. VI. SEQRA does not designate Brookhaven or Southampton as possible lead agencies for the decisions of the Riverhead Planning Board. VII. The Riverhead Planning Board has no authority to consider county acquisition.

      Patricia C. Moore, Town Attorney of Town of Riverhead (William D. Moore of counsel), for Town Board of the Town of Riverhead and another, appellants.
    I. The Court below has improperly expanded this Court’s holding in Matter of Save the Pine Bush v City of Albany (70 NY2d 193). (Akpan v Koch, 75 NY2d 561.) II. The policies set forth in ECL articles 55 and 57 do not constitute an integrated plan requiring cumulative impact analysis. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Akpan v Koch, 75 NY2d 561; Matter of WEOK Broadcasting Corp. v Planning Bd., 79 NY2d 373.)

      Robert J. Cimino, County Attorney of Suffolk County, Hauppauge (Robert H. Cabbie, Arlene S. Zwilling and Derrick J. Robinson of counsel), for Department of Health Services of the Suffolk County Health District, appellant.
    I. SEQRA and 6 NYCRR 617 do not require cumulative effects review of all pending, proposed and reasonably foreseeable actions within Zone III before any single action may be approved. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359; Matter of Village of Westbury v Department of Transp., 75 NY2d 62; Akpan v Koch, 75 NY2d 561; Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 157 AD2d 1, 77 NY2d 970; Matter of Cahn v Planning Bd., 157 AD2d 252; Matter of Orange Envt. v Jorling, 161 AD2d 1069.) II. There exists no legal mechanism by which the Suffolk County Health Services Department may conduct a cumulative effects analysis. (Matter of Williams & Everley v MacLeod, 58 AD2d 984, 44 NY2d 973; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; People v De Jesus, 54 NY2d 465; Matter of Ames v Smoot, 98 AD2d 216.)

      Denise F. Molia, Town Attorney of Town of Brookhaven, Medford (Garrett W. Swenson, Jr., of counsel), for Planning Board of the Town of Brookhaven and others, appellants.
    I. Consideration of cumulative impacts of the 238 development projects challenged is not mandated by SEQRA. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Residents for More Beautiful Port Wash, v Town of N. Hemp-stead, 149 AD2d 266; Horn v International Bus. Machs., 110 AD2d 87; Matter of Village of Westbury v Department of Transp., 75 NY2d 62; Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 157 AD2d 1; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359; Klostermann v Cuomo, 61 NY2d 525; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; Matter of City of Schenectady v Flacke, 100 AD2d 349, 63 NY2d 603; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400.) II. SEQRA does not mandate that public acquisition of the site of the proposed action be considered as an alternative to the action. (Matter of Residents for More Beautiful Port Wash, v Town of N. Hempstead, 149 AD2d 266; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 60 NY2d 805; Aldrich v Pattison, 107 AD2d 258; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Vermont Yankee Nuclear Power Corp. v National Resources Defense Council, 435 US 519; Webster Assocs. v Town of Webster, 59 NY2d 220; Life of the Land v Brinegar, 485 F2d 460, 416 US 961; Matter of Environmental Defense Find v Flacke, 96 AD2d 862; Matter of Schodack Concerned Citizens v Town Bd., 148 AD2d 130.)

      Leon D. Lazer, Melville, Certilman, Balin, Adler & Hyman, East Meadow, and Mars, Sloane & Conlon, Hauppauge, for Breskel Shopping Center Associates and others, intervenorsappellants.
    I. The Court below was mistaken in its holding that an announcement of governmental policy is the equivalent of an integrated project sufficient to mandate cumulative effects study under 6 NYCRR 617.11 and this Court’s Pine Bush holding. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Akpan v Koch, 75 NY2d 561; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359; Matter of Village of Westbury v Department of Transp., 75 NY2d 62;
      Matter of Stewart Park & Reserve Coalition v New York State Dept of Transp., 77 NY2d 970; Matter of Orange Envt. v Jorling, 161 AD2d 1069; Matter of Cahn v Planning Bd., 157 AD2d 252.) II. As the Legislature’s own definition demonstrates, ECL article 55 does not constitute an "integrated plan or program” within the meaning of 6 NYCRR 617.11 (b) and the 1990 amendments to the ECL make it clear that special Environmental Impact Statement requirements are dependent on certification of a comprehensive management plan by the DEC Commissioner. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193.) III. The "rule of reason” governing substantive obligations under SEQRA precludes the relief the petition demands. (Akpan v Koch, 75 NY2d 561; Matter of WEOK Broadcasting Corp. v Planning Bd., 79 NY2d 373; Matter of Har Enters, v Town of Brookhaven, 74 NY2d 524; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Orchards Assocs. v Planning Bd., 114 AD2d 850.) IV. The relief demanded by the petition would constitute impermissible judicial legislation. (Klostermann v Cuomo, 61 NY2d 525; National Org. for Women v Metropolitan Life Ins. Co., 131 AD2d 356, 70 NY2d 939; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807; Matter of Wilson v Board of Educ., 39 AD2d 965; Murphy v Board of Educ., 104 AD2d 796, 64 NY2d 856; Matter of WEOK Broadcasting Corp. v Planning Bd., 79 NY2d 373.) V. The mandamus to compel sought by the petition is unavailable because the acts sought to be compelled are discretionary and would cause disorder and public confusion. (Matter of Hamptons Hosp. & Med. Ctr. v Moore, 52 NY2d 88; Matter of County of Fulton v State of New York, 76 NY2d 675; Klostermann v Cuomo, 61 NY2d 525; Matter of Jang v Brown, 161 AD2d 49; Matter of Andresen v Rice, 277 NY 271; Matter of Ahern v Board of Supervisors, 7 AD2d 538, 6 NY2d 376; Matter of St. Regis Mohawk Dev. Corp. v Nemier, 166 AD2d 861.)

      Mars, Sloane & Conlon, Hauppauge (Theodore D. Sklar of counsel), for Greenwood Village Associates and others, intervenors-appellants.
    I. SEQRA does not require identification and consideration of the cumulative environmental impacts of unrelated projects that are not part of any integrated plan for development. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359; Matter of Village of Westbury v Department of Transp., 75 NY2d 62; Akpan v Koch, 75 NY2d 561;
      Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 77 NY2d 970; Matter of Orange Envt. v Jorling, 161 AD2d 1069; Matter of Strathmore Hills Civic Assn, v Town of Huntington, 146 AD2d 783, 74 NY2d 614; Matter of Residents for More Beautiful Port Wash, v Town of N. Hempstead, 149 AD2d 266.) II. ECL article 55 and the amalgam of studies and enactments cited by the majority do not constitute a "plan” within the meaning of SEQRA. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Prospect v Cohalan, 65 NY2d 867; Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398; Matter of Programming & Sys. v New York State Urban Dev. Corp., 61 NY2d 738; Housing Justice Campaign v Koch, 164 AD2d 656, 78 NY2d 858; Matter of Essex County v Executive Dept., 172 AD2d 970, 78 NY2d 857; Matter of Magee v Rocco, 158 AD2d 53; Matter of Schiff v Board of Estimate, 122 AD2d 57.) III. The 1990 amendments to ECL article 8 do not change existing law and do not require the preparation of a cumulative impact study. (Akpan v Koch, 75 NY2d 561.)

      Esseks, Hefter & Angel, Riverhead (William W. Esseks and John M. Wagner of counsel), for Hampton Hills Associates and others, intervenors-appellants. Respondent and respondent-oppellant agencies are not required to consider the cumulative impacts of all 224 projects challenged in the proceeding on appeal in their SEQRA review for any one of those projects.

      (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359; Akpan v Koch, 75 NY2d 561; Matter of Village of West-bury v Department of Transp., 75 NY2d 62; Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 157 AD2d 1; Matter of Cahn v Planning Bd., 157 AD2d 252; Matter of Orange Envt. v Jorling, 161 AD2d 1069.)

      Berle, Kass & Case, New York City (Michael B. Gerrard and Philip Weinberg of counsel), for Long Island Pine Barrens Society, Inc., and others, respondents.
    I. SEQRA mandates consideration of the cumulative impact of a series of projects within the critical aquifer protection area designated in Federal, State, county and local laws to safeguard Long Island’s sole source aquifer. (Matter of Rye Town/King Civic Assn, v Town of Rye, 82 AD2d 474, 56 NY2d 985; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601, 72 NY2d 807; Matter of Martin v Koppelman, 124 AD2d 24; Matter of Wilson v Board of Educ., 39 AD2d 965; Matter of Industrial

      Commr. v Five Comers Tavern, 47 NY2d 639; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359; Matter of Village of Westbury v Department of Transp., 75 NY2d 62; Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 157 AD2d 1, 77 NY2d 970; Matter of Sutton Area Community v Board of Estimate, 78 NY2d 945; Matter of Cahn v Planning Bd., 157 AD2d 252.) II. Practicable mechanisms already exist to perform and finance a cumulative impact review of reasonable scope. (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674; Matter of Save the Pine Bush v Planning Bd., 96 AD2d 986, 61 NY2d 668; Matter of Pearson Kent Corp. v Bear, 28 NY2d 396; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Town of Poughkeepsie v Flacke, 105 Misc 2d 149, 84 AD2d 1.)

      Joel Richard Kupferman, Huntington, for Assembly Members of the New York State Legislative Commission on Water Resource Needs of Long Island, amicus curiae.

    I. The New York State Legislature enacted the Sole Source Aquifer Protection Act and amended SEQRA in 1990 to require that cumulative impacts be addressed in special groundwater protection areas. II. Current regulatory programs inadequately address the significant cumulative impacts of land use on groundwater quality. Even though each of the 224 actions has potential adverse impacts on the environment, there has not been a sufficient "hard look” taken to address the cumulative impacts of all the actions together.

      Sarah J. Meyland, Massapequa, for Citizens Campaign for the Environment, amicus curiae.

    The Court below was correct in holding that a cumulative impact analysis is required in this case because of the existence of a plan or policy to balance competing interests in a critical environmental area. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193.)

      Carolyn Zenk, Bridgehampton, and Neal Lewis, Massapequa, for Group for the South Fork and others, amici curiae.

    I. The SEQRA regulations require a "hard look” or thorough analysis of the cumulative impacts 224 development projects will have on the Long Island Pine Barrens. (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222; Matter of Tehan v Scrivani, 97 AD2d 769; Matter of Save the Pine Bush v Planning Bd., 96 AD2d 986; Coalition Against Lincoln W. v City of New York, 94 AD2d 483; Onondaga Landfill Sys. v

      Flacke, 81 AD2d 1022; Matter of Rye Town/King Civic Assn, v Town of Rye, 82 AD2d 474.) II. The Pine Bush cases control the outcome of this case. (Matter of Save the Pine Bush v City of Albany, 117 AD2d 267, 70 NY2d 193.) III. The facts in this case are more compelling than in Pine Bush in warranting a cumulative assessment. IV. Prevention of environmental degradation via a cumulative assessment of development projects is cost effective. V. A cumulative review of development in the Pine Barrens carries out the intent of the SEQRA. (Matter of Meschi v New York State Dept, of Envtl. Conservation, 114 Misc 2d 877; Aldrich v Pattison, 107 AD2d 258; Matter of Board of Visitors — Marcy Psychiatric Ctr. v Coughlin, 119 Mise 2d 279.)

      Howard I. Fox, of the District of Columbia Bar, admitted pro hac vice, for the Sierra Club and others, amici curiae.

    I. The National Environmental Policy Act (NEPA) requires that the analysis of cumulative impacts in an Environmental Impact Statement include consideration of other actions within the same region or ecosystem, regardless of whether the proposed action and such other actions are part of a regional development plan or policy. (Andrus v Sierra Club, 442 US 347; Natural Resources Defense Council v Callaway, 524 F2d 79; Town of Huntington v Marsh, 859 F2d 1134; D'Agnillo v United States Dept, of Hous. & Urban Dev., 738 F Supp 1454, 923 F2d 17; Natural Resources Defense Council v Hodel, 865 F2d 288; Akers v Resor, 443 F Supp 1355; Natural Resources Defense Council v Grant, 355 F Supp 280.) II. NEPA requires that an agency consider the cumulative impacts of a proposed action in determining whether it must prepare an EIS. (Firiofson v Alexander, 772 F2d 1225; Sierra Club v United States Forest Serv., 843 F2d 1190; National Wildlife Fedn. v United States Forest Serv., 592 F Supp 931; Mantee County v Gorsuch, 554 F Supp 778; People ex reí. Van de Kamp v Marsh, 687 F Supp 495; United States v 27.09 Acres of Land, 760 F Supp 345.)

      Robert Abrams, Attorney-General, New York City (James A. Sevinsky, Jerry Boone and Leslie Allan of counsel), for the State of New York, amicus curiae.

    The Court below correctly determined that SEQRA mandates assessment of the cumulative impacts of the many land use projects proposed for the Central Pine Barrens, a special groundwater protection area. (Matter of Schenectady Chems. v Flacke, 83 AD2d 460; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Matter of Rye

      Town/King Civic Assn, v Town of Rye, 82 AD2d 474, 57 NY2d 775; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601; H.O.M.E.S. v New York State Urban Dev. Corp., 69 NY2d 222; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Abrams v Love Canal Area Revitalization Agency, 134 AD2d 885; Environmental Defense Fund v Costle, 439 F Supp 980; Matter of Town of Islip v Cuomo, 64 NY2d 50; Town of Islip v Williams, 126 AD2d 276, 70 NY2d 602.)
   OPINION OF THE COURT

Titone, J.

The Central Pine Barrens is an area of Long Island that once encompassed approximately 250,000 acres in central Suffolk County but has now been reduced to some 100,000 acres of relatively undeveloped land. The Pine Barrens is an indispensable component of the aquifer system that is the sole natural source of drinking water for over two and a half million inhabitants of Long Island. Indeed, because of its critical ecological significance, the Pine Barrens has been the subject of protective legislation at all levels of government. The specific issue presented here is whether the State Environmental Quality Review Act (SEQRA) and its accompanying regulatory scheme should be construed to require the preparation of a cumulative impact statement in connection with the more than 200 development projects that are currently proposed for the Central Pine Barrens region. Contrary to the holding of the Appellate Division, we conclude that the statutory and regulatory criteria for mandatory cumulative impact statements cannot, and should not, be stretched to cover this unique problem. Accordingly, there should be a reversal.

L

The sole natural source of drinking water for much of Long Island is its aquifer system, which is comprised of three subsoil water-bearing layers known as the Upper Glacial Aquifer, the Magothy Aquifer and Lloyd Sands. The system is regularly replenished by precipitation, which infiltrates the land surface in the Pine Barrens region, enters the system through the Upper Glacial Aquifer and percolates downward to the lower layers through a hydrological phenomenon known as "deep flow recharge.” Because the Pine Barrens’ soils are highly porous, the region provides an excellent vessel for the storage and distribution of precipitation. Further, the precipitation that enters the system through the soil in the Pine Barrens radiates out to the north, south and east, feeding the entire aquifer and diluting the contaminants that may have entered the system from other sources.

Unfortunately, the same characteristics that make the Central Pine Barrens an ideal source of recharge also make it especially vulnerable to the risk of pollution, since its permeable soil is not readily capable of filtering or degrading contaminants. As is indicated by at least one study, once the deep recharge system in this area becomes contaminated, it would take centuries to flush it sufficiently to return it to clean groundwater quality. Thus, as a practical matter, contamination would be irreversible. Moreover, because precipitant entering through the Pine Barrens region radiates outward into the rest of the aquifer system, any contamination originating in this area would have serious consequences for the entire Long Island groundwater supply. It is thus apparent that the protection of the Pine Barrens region from sources of pollution is vital to the health of Long Island’s human population.

The Pine Barrens also has unique ecological significance because of its unusually high concentration of species that have officially been classified as endangered, rare or subject to the protection of Federal law (see, 16 USC § 1531 et seq.; see also, ECL 11-0535; 6 NYCRR part 182). The Pine Barrens contains over 300 species of vertebrate animals, 1,000 species of plants and 10,000 species of insects and other invertebrate animals, many of them rare and restricted to Pine Barrens or other similar areas. Among the more important species inhabiting the Pine Barrens are the tiger salamander, the red-shouldered hawk, the northern harrier and the mud turtle (see, 6 NYCRR 182.6). The Pine Barrens’ singular geological and meteorological history, as well as its highly unusual soil, vegetation and water levels, make it particularly hospitable to a wide variety of life forms whose survival could well be threatened by development. The need for caution in this area is especially acute because development in one part of the region could have unforeseen consequences in another, as migratory routes are disrupted, food supplies are destroyed, alien species are given berth to develop and environmentally crucial wetlands are permitted to dry up. Furthermore, development may encourage extinguishment of the ecologically necessary wildfires that periodically burn through the region.

II

In recognition of the ecological importance and fragility of the Long Island Pine Barrens, laws and policies have been adopted at all government levels to protect the area from unbridled development. In 1978, the Federal Environmental Protection Agency designated the underlying Long Island aquifer a "sole source aquifer” after noting that the aquifer system is the principal source of drinking water for Nassau and Suffolk Counties and is highly vulnerable to contamination (43 Fed Reg 26611 [June 21, 1978]; see, 42 USC § 300h-3 [e]). Additionally, pursuant to the Federal Water Pollution Control Act (33 USC § 1288), the Long Island Regional Planning Board released a comprehensive waste treatment plan (the 208 study), which mapped Hydrogeologic Zone III as an area virtually coextensive with the Central Pine Barrens and declared that it should be protected from contamination through land use restrictions and other controls.

In 1974, the New York State Legislature adopted the first in what was to become a series of enactments designed to protect the Pine Barrens by amending the Environmental Conservation and Public Health Laws to provide for special review of business, commercial and industrial uses in Suffolk County with a view toward preserving the purity of the groundwater (L 1974, ch 802). Ten years later, the Legislature adopted the Landfill Law, which prohibits the placement of new landfill sites in Zone III and most of the Central Pine Barrens (L 1983, ch 299; see also, Matter of Town of Islip v Cuomo, 64 NY2d 50). The same Legislature authorized the Department of Environmental Conservation (DEC) to prohibit land uses involving hazardous wastes in certain portions of Long Island because of the "direct relationship [that] exists between land use activities and the quality of the groundwater reservoir beneath” (L 1983, ch 951, § 1). In 1984, a State-wide framework for water resource planning was established and, pursuant to the new statute, the DEC issued a report, the Long Island Ground Water Management Plan, which singled out the Long Island Pine Barrens for protection (L 1984, ch 509; see, ECL art 15).

The centerpiece of the State legislation affecting the Pine Barrens is the Sole Source Aquifer Special Groundwater Protection Areas Law (L 1987, ch 628), which is codified at ECL article 55 and specifically includes the Central Pine Barrens in the Suffolk County Towns of Brookhaven, Riverhead and Southampton as one of the nine listed Special Groundwater Protection Areas (see, ECL 55-0113 [1] [g]). The statute contemplates the creation of a comprehensive management plan to govern development within the designated areas (see, ECL 55-0115). The goals underlying article 55 have also been reflected in subsequent State legislation, including the Long Island Pine Barrens Maritime Reserve Act (L 1990, ch 814, codified at ECL art 57), several amendments to strengthen both article 55 and the Maritime Reserve Act (L 1991, ch 238; L 1992, ch 271) and, finally, an amendment to SEQRA requiring every Environmental Impact Statement concerning a project affecting the Pine Barrens to discuss the "effects of any proposed action on, and its consistency with, the comprehensive management plan” (L 1990, ch 219, adding ECL 8-0109 [2] [i]; [9]).

At the local level, the Suffolk County Legislature has adopted laws encouraging towns and villages within the Pine Barrens Zone to develop "unified policies” with regard to land use within that zone (Local Laws, 1984, No. 7 of County of Suffolk), designating the Central Pine Barrens as a Critical Environmental Area pursuant to SEQRA (Local Laws, 1987, No. 24; see, 6 NYCRR 617.4 [former (j)] [now subd (h)]), creating a Pine Barrens Wilderness and a Water Protection Preserve (Local Laws, 1987, No. 40) and establishing funding mechanisms for projects to protect the drinking water (Local Laws, 1988, No. 35). Specialized land use management plans to protect the drinking supply have also been advocated in local legislation adopted in the Towns of Southampton (Local Laws, 1984, No. 1), Brookhaven (Resolution No. 10, adopted June 20, 1989; see also, Brookhaven Town Code ch 80) and Riverhead (Zoning Code art XXXII).

III

At issue in this appeal are some 224 discrete proposed development projects that are scattered throughout the Central Pine Barrens area in the Towns of Brookhaven, River-head and Southampton. Some of these projects have already received local approval, while others are still awaiting review.

Petitioners, consisting of an incorporated society and several individuals interested in the preservation of the Pine Barrens, commenced the present proceeding to invalidate the approvals that have already been given and to enjoin respondents from taking any further action in relation to the pending proposals without first complying with SEQRA. Specifically, petitioners claim that SEQRA has been and is being violated here because no consideration has been given to the cumulative environmental impact of all pending development projects in the Central Pine Barrens area.

Relying on the fact that the comprehensive management plan mandated by ECL article 55 has not yet been adopted at any level of government, the trial court ruled that the municipal respondents were not obliged to consider the cumulative impact of all of the pending projects within the region. The Appellate Division reversed this aspect of the trial court’s ruling. Citing Matter of Save the Pine Bush v City of Albany (70 NY2d 193) and other cases in which the use of cumulative impact statement has been required, the Court concluded that, by virtue of their presence in the legislatively protected Central Pine Barrens area, the 224 projects in issue are sufficiently "related” to fall within the mandatory cumulative impact rule of 6 NYCRR 617.11 (a) (11) and (b). After its decision, the Appellate Division granted respondents leave to appeal, certifying the following question of law: "Was so much of the opinion and order of this court dated [March] 9,1992, as modified the order and judgment of the Supreme Court, Suffolk County, entered March 28, 1991, properly made?”

IV.

SEQRA requires the preparation of an Environmental Impact Statement for any government-sponsored or government-approved "action” that may have "a significant effect” on the environment (see, ECL 8-0109 [2]). One criterion for the "significant effect” determination is the existence of "two or more related actions * * * none of which has * * * a significant effect * * * but when considered cumulatively would meet one or more of the [other regulatory significant effect] criteria” (6 NYCRR 617.11 [a] [11]). For purposes of determining whether an action meets any of those regulatory criteria, "the lead agency must consider reasonably related long-term, short-term and cumulative effects, including other simultaneous or subsequent actions which are: (1) included in any long-range plan of which the action under consideration is a part; (2) likely to be undertaken as a result thereof; or (3) dependent thereon” (6 NYCRR 617.11 [b] [emphasis supplied]). In all other circumstances, consideration of the cumulative effects of projects other than the one immediately proposed is permissible but not mandatory (see, Matter of Save the Pine Bush v City of Albany, supra, at 205; see also, 6 NYCRR 617.15 [a] [1]).

In a series of recent decisions, this Court has considered the circumstances in which a cumulative impact study is required pursuant to the foregoing rules (Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 77 NY2d 970, affg 157 AD2d 1; Matter of Village of Westbury v Department of Transp., 75 NY2d 62; Akpan v Koch, 75 NY2d 561; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, supra; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359). Although 6 NYCRR 617.11 (a) (11) speaks in terms of "related actions,” this Court has held that common ownership of the pending projects is not necessarily a prerequisite for a mandatory cumulative impact study. Rather, in some circumstances, the "relatedness” element may be satisfied if "the project at issue * * * is * * * part of a larger plan designed to resolve conflicting specific environmental concerns in a subsection of a municipality with special environmental significance” (Matter of Save the Pine Bush v City of Albany, supra, at 206; accord, Chinese Staff & Workers Assn, v City of New York, supra).

Relying on this flexible formulation, petitioners contend that the 224 projects at issue in this case are "related” because they all involve property within the Central Pine Barrens region, an area that is both ecologically sensitive and subject to a large body of protective legislation. However, petitioner’s argument misconstrues our holdings by equating the notion of a general governmental policy of protecting a particular region with the idea of a governmental plan. The distinction is significant because, as will be discussed below, the existence of a broadly conceived policy regarding land use in a particular locale is simply not a sufficiently unifying ground for tying otherwise unrelated projects together and requiring them to be considered in tandem as "related” proposals pursuant to 6 NYCRR 617.11 (a) (11) and (b).

The distinction may best be illustrated by comparing the circumstances presented here with those presented in Matter of Save the Pine Bush v City of Albany (supra) and Chinese Staff & Workers Assn, v City of New York (supra), on which petitioners rely. In each of those cases, the municipality had enacted a local ordinance containing a plan to set aside a discrete development district without destroying the district’s existing character. In Chinese Staff, the municipality had created a special urban zoning district with seven specific building sites to encourage new residential development while preserving the well-defined community’s unique ethnic and architectural characteristics. Similarly, in Save the Pine Bush (supra), which also involved "pine barrens” land, the municipality had implemented its desire to expand commercial development while preserving the area’s environmental integrity by creating a 550-acre zone in which single-story office buildings or other similar projects would be permitted. In addition to establishing this special development district, the municipality had prescribed a set of site-review procedures and delineated criteria to be used in determining which proposed projects should be approved.

It was in those contexts, which both entailed actual municipal development plans, that this Court noted the applicability of 6 NYCRR 617.11 (a) (11) and (b) and held that the "lead agencies” were required to consider the cumulative impact of other pending proposals within the special districts before deciding to approve the individual applications before them. Despite the absence of common ownership or functional connection, we concluded that the requisite "relatedness” among the projects was established because the municipalities’ plans, in and of themselves, provided a sufficiently cohesive framework for mandatory cumulative impact review. In other words, the decisive factor in both Chinese Staff and Save the Pine Bush was the existence of a "larger plan” for development (see, 70 NY2d, at 206, supra), not the proposed projects’ common geographical base or the existence of a generally stated governmental policy to protect the region from unbridled development.

Here, despite the myriad of legislative initiatives involving the Long Island Pine Barrens, there is no plan analogous to the ordinance establishing a special urban zoning district in Chinese Staff or the local statute creating a special light-industry district in Save the Pine Bush. Rather, there is merely a host of Federal, State and local statutes designating the region as an ecologically sensitive one and mandating the development of adequate land-use controls. Consequently, there is no cohesive framework for relating the 224 projects in issue to each other. The only element they share — their common placement in the Central Pine Barrens — is an insufficient predicate under the present set of administrative regulations for mandatory cumulative impact analyses as preconditions to a myriad of local land use determinations.

Moreover, there exists an even more fundamental reason why requiring a cumulative impact study would not be an appropriate solution to the very grave environmental and political problems presented by development proposals within the Central Pine Barrens. The cumulative impact assessment that petitioners envision would be, in essence, a vehicle for the many involved "lead agencies” to engage in comprehensive and long-range planning for the development of this vast area of land which has been designated for special protection. While such an exhaustive and thorough approach to evaluating projects affecting this region is unquestionably desirable and, indeed, may well be essential to its preservation, petitioners’ suggestion that it be accomplished through the processes mandated by SEQRA is inconsistent with the very legislation on which petitioners rely.

Under SEQRA, the individual agency having the primary authority to approve or disapprove a particular project application is responsible for making the environmental impact assessment (see, ECL 8-0105 [7]; 8-0109, 8-0111). With regard to the Central Pine Barrens, in contrast, the Long Island Regional Planning Board is designated as the over-all "planning entity” (ECL 55-0113 [5]). Acting with the advice of the statutorily mandated Special Groundwater Protection Area Advisory Council (ECL 55-0113 [6]), the Regional Planning Board is responsible for devising a "comprehensive management plan” that includes "specific watershed rules and regulations,” "detailed boundaries] of the special groundwater protection area,” "[a] resource assessment [of] * * * the amount and type of human development and activity which the ecosystem can sustain,” "[p]roposal[s] of limits on land uses that might have an adverse impact on water quality and/or recharge capabilities,” "specific techniques [such as] clustering, large lot zoning * * * and other innovative measures * * * to achieve the objectives of this [statute],” and, most significantly, "[a] program for local governmental implementation of the comprehensive management plan” (ECL 55-0115 [3]-[5], [8], [9], [11]). Thus, the Legislature plainly contemplated a centralized approach to planning in this area, rather than individual decision-making by the various "lead agencies,” acting in accordance with their own local policies and priorities. While the Regional Planning Board lacks the authority to require local planning entities to follow its plan, the Legislature expressly charged it with finding a mechanism to implement a regional plan. That charge plainly belies petitioners’ argument that the Legislature intended implementation of regional planning to occur piecemeal through the actions of individual lead agencies and cumulative impact studies under SEQRA or, for that matter, through the unfeasible "cooperative venture” that petitioners espouse. Likewise, the functions that might otherwise be served by the completion and use of a cumulative Environmental Impact Statement, i.e., acquiring an overview of impending land development proposals, appreciating the totality of the potential environmental consequences and avoiding the pitfalls of piecemeal decision-making (see generally, Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 157 AD2d 1, 9-10, affd 77 NY2d 970, supra) — are, in this instance, to be served by a comprehensive management plan that the Regional Planning Board is responsible for preparing.

Finally, the facts in this case demonstrate the need for centralized planning by a single regional agency, as mandated by ECL article 55. The Central Pine Barrens area spans three separate townships within Suffolk County and affects the aquifer system on which much of Long Island depends. The 224 projects that are at issue in this litigation involve a diverse range of activities requiring approvals by a wide number of agencies at different levels of government. As Justice Thomas Sullivan observed in his dissenting opinion below (178 AD2d 18, 47-48), there currently exists no legislatively prescribed mechanism for these agencies to pool their information or share their respective decision-making prerogatives. Thus, as the Legislature foresaw, the existing system of land-use planning in the region is plainly not equal to the massive undertaking that effective long-range planning would require, and some other system devised by a larger planning entity must be substituted.

Petitioners would have us effect this substitution by mandating the preparation of a cumulative impact study, designating the Suffolk County Health Department as "lead agency,” recommending the use of a "Generic Environmental Impact Statement” where feasible (see, 6 NYCRR 617.15), and directing that the required studies be funded principally by imposing the cost on the applicants pursuant to ECL 8-0109 (7) (a) (see, 6 NYCRR 617.17 [a]). However, even if this proposal were sufficient to overcome the many existing hurdles — a propositian that is itself subject to doubt, we could not adopt this course of action for the simple reason that it would be in direct conflict with the choice that the Legislature has already made to give the Regional Planning Board the authority to design "[a] program for local governmental implementation of the comprehensive management plan” (ECL 55-0115 [11]).

For similar reasons, we reject petitioners’ contention that a legislative intent to mandate cumulative impact review under SEQRA may be inferred from ECL 8-0109 (9), which provides that an Environmental Impact Statement for projects affecting the Central Pine Barrens "shall meet the requirements of the most detailed environmental impact statement required by this section or by any * * * rule or regulation promulgated pursuant to this section.” This general directive certainly was not intended to mandate the substitution of SEQRA’s methods for the comprehensive, bicounty planning process contemplated by article 55.

Petitioners have expressed frustration because of the prolonged delay in the creation of the comprehensive management plan that was mandated by ECL 55-0113 (5) and 55-0115. Although article 55 was adopted in 1987, it was apparently not until August of 1991 that the Regional Planning Board produced a preliminary draft for informal circulation (see, 178 AD2d, at 42, n 1, supra [Sullivan, J., dissenting]), and it remains unclear when a final plan will be ready for submission to the Department of Environmental Conservation (see, ECL 55-0117). In view of the gravity of the risk of irreversible harm to the environment, as well as the urgency of the problem (as demonstrated by the pendency of at least 224 development projects affecting the region), such a leisurely pace is clearly counterproductive, particularly in light of the protective values long espoused by the Legislature. We in the judiciary are not free to piece together statutes and regulations that were never meant to address a problem of this magnitude in order to fill the gap left by the responsible planning entity’s inaction. As was noted by the dissenter in the Court below, the cumulative impact statement requirement of 6 NYCRR 617.11 (a) (11) and (b) is not fairly applicable in these circumstances, and, further, is not an adequate substitute for the specific ameliorative measures that the Legislature has expressly prescribed. To the extent that those measures have proven deficient, the solution must be devised by the Legislature, which is responsible for crafting sensible deadlines and mandating prompt action by the designated planning bodies to address this matter of urgent public concern (see, ECL 57-0115).

Accordingly, the order of the Appellate Division should be reversed, with costs, the order and judgment of the Supreme Court reinstated, and the certified question answered in the negative.

Acting Chief Judge Simons and Judges Kaye, Hancock, Jr., Bellacosa and Smith concur.

Order reversed, etc.

       Petitioners also argued below that SEQRA requires the locality to consider public acquisition as an alternative to approving proposals to build on land within the Central Pine Barrens (see, 6 NYCRR 617.14 [¶] [5]). Both the trial court and the Appellate Division rejected this argument, and the issue is not before us on this CPLR 5602 (b) (1) appeal by respondents.