text:
    The People of the State of New York, Respondent, v Juan Robles, Appellant. The People of the State of New York, Respondent, v Thomas Murray, Appellant.
    Argued November 21, 1988;
    decided December 15, 1988

      POINTS OF COUNSEL

      Harold V. Ferguson, Jr., and Philip L. Weinstein for appellant in the first above-entitled action.
    The deliberate delay of appellant’s arrest for the express purpose of circumventing his right to counsel requires the suppression of his oral, written and videotaped statements. (People v Bartolomeo, 53 NY2d 225; People v Wilson, 56 NY2d 692; People v Edgerton, 115 AD2d 257; People v Cooper, 101 AD2d 1; People v Brinsko, 115 AD2d 859; People v Dobranski, 112 AD2d 541; People v Williams, 112 AD2d 259; People v Bernacet, 108 AD2d 921; People v Hawkins, 55 NY2d 474.)

      Robert M. Morgenthau, District Attorney (Carol Gette and Amyjane Rettew of counsel), for respondent in the first above-entitled action.
    The postponement of defendant’s arrest until his unrelated case had concluded did not deprive defendant of his State constitutional right to counsel or any other right. (People v Rogers, 48 NY2d 167; People v Colwell, 65 NY2d 883; People v Coaxum, 126 Misc 2d 122, 124 AD2d 1075, 69 NY2d 825; People v Margolies, 125 Misc 2d 1033; People v Carl, 46 NY2d 806; People v Ermo, 47 NY2d 863; People v Whitaker, 75 AD2d 111; People v Marshall, 98 AD2d 452; People v Hilderbrandt, 122 Misc 2d 622; People v St. Clair, 124 Misc 2d 746.)

      James B. McCarthy for appellant in the second above-entitled action.
    I. The court erred in not suppressing statements made by defendant when it was established that defendant made the statements in the absence of counsel after the premature dismissal of a pending charge against him in which he was represented by counsel which dismissal was for the purpose of allowing police to question defendant in the absence of counsel in the present case. (People v Bartolomeo, 53 NY2d 225; People v Rogers, 48 NY2d 167; People v Mann, 60 NY2d 792; People v Pelchat, 62 NY2d 97; People v Albro, 52 NY2d 619; People v Winchell, 64 NY2d 826; People v Coaxum, 126 Misc 2d 122; People v Osgood, 52 NY2d 37; Wong Sun v United States, 371 US 471.) II. Defendant did not knowingly and voluntarily waive his Miranda rights because flagrant police misconduct which purposely tricked defendant out of appreciating the gravity of his legal situation at the time of his supposed waiver negated its validity. (Miranda v Arizona, 384 US 436; United States v Rubio, 526 F Supp 171; Carvey v LeFevre, 611 F2d 19; Davis v Bara, 542 F Supp 743.) III. The trial court’s charge that defendant has the burden of proof on the affirmative defense to felony murder was so unclear it denied defendant due process of law because it implied defendant must present witnesses to meet his burden of proof. (People v Coates, 64 AD2d 1.)

      Robert M. Morgenthau, District Attorney (Norman Barclay and Amyjane Rettew of counsel), for respondent in the second above-entitled action.
    I. Once the shoplifting case had been dismissed, defendant’s right to counsel on that charge no longer prevented him from waiving his right to counsel and agreeing to speak to the police about the unrelated murder investigation. (People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225; People v Mann, 60 NY2d 792; People v Coaxum, 126 Misc 2d 122, 124 AD2d 1075, 69 NY2d 825; People v Osgood, 52 NY2d 37; People v Di Falco, 44 NY2d 482; People ex rel. Lewisohn v O’Brien, 176 NY 253; Bruton v United States, 391 US 123; Hoffa v United States, 385 US 293.) II. The courts below properly found that defendant made a knowing decision to waive his rights before making his statement to the police. (People v Winchell, 64 NY2d 826; People v Robles, 27 NY2d 155; People v Pereira, 26 NY2d 265; Moran v Burbine, 475 US 412; United States v Mohabir, 624 F2d 1140; Carvey v LeFevre, 611 F2d 19; People v Settles, 46 NY2d 154; People v Bevilacqua, 45 NY2d 508.) III. Defendant has not preserved his attack on the court’s charge about the affirmative defense to felony murder, which, in any event, did not imply in any way that defendant had to present witnesses to meet his burden of proof.
   OPINION OF THE COURT

Chief Judge Wachtler.

In each of these unrelated cases, the defendant came under suspicion for murder and other offenses while being prosecuted for less serious, unconnected crimes. Each defendant was represented by counsel in the pending prosecutions. The investigating authorities, knowing that they could not subject the suspects to custodial interrogation in the absence of counsel while the prior charges remained pending (see, People v Rogers, 48 NY2d 167; see also, People v Bertolo, 65 NY2d 111, 116), did not arrest or question the defendants until after disposition of the prior charges. Then, after the required preinterrogation warnings, but in the absence of counsel, each defendant made inculpatory statements.

The common question presented by these appeals is whether those inculpatory statements should be suppressed on the ground that they were obtained in violation of the defendants’ right to counsel. We hold that the right to counsel derived from their representation on the prior charges expired with the disposition of those charges and, accordingly, that the defendants’ suppression motions were properly denied.

I.

People v Robles

Defendant Robles was convicted, upon a guilty plea, of second degree murder and several counts of first and third degree robbery. The murder charge and one of the robbery charges arose out of the stabbing death of a woman in a stairwell of the Waldorf-Astoria Hotel on September 22, 1982. In the victim’s handbag the police found a card bearing a bloody fingerprint. For the next two months, the investigation was fruitless, but on November 23, the fingerprint was matched to defendant. A check of police records and further investigation revealed that Robles had a pending indictment in New York County, that he was represented by counsel on that charge, that he was then free on bail and was scheduled to appear in court on November 29.

On the scheduled date, the investigators attended court in order to establish surveillance of defendant, but he did not appear. They learned, however, that his case had been adjourned until December 6 and they observed him as he attended court on that and two consecutive dates. At the third appearance, defendant entered a guilty plea in satisfaction of the pending charges and the case was adjourned until January 11, 1983 for sentencing.

Although defendant remained free on bail, the investigators made no attempt to arrest him on the homicide matter. The detectives acknowledged at the suppression hearing, and the suppression court found, that the decision not to arrest defendant was prompted in part by the investigators’ knowledge that they could not question defendant in a custodial setting in the absence of counsel because he was represented by an attorney on the pending charges.

On January 4, the investigators learned of another robbery at the Waldorf-Astoria Hotel committed the day before by a man fitting defendant’s description. The detectives soon connected defendant with at least 10 robberies of a similar nature and defendant’s photo was selected from an array by a number of the victims. The detectives immediately sought to arrest defendant, but they could not locate him until he appeared for his sentencing on January 11. Because he was remanded into custody at that time, however, they decided not to arrest him in connection with the murder and robberies until he completed his sentence on the prior charges.

When defendant was released from Hikers Island three months later, he was immediately arrested, given Miranda warnings and questioned, without counsel present, about the murder and robberies. Defendant made oral, written and videotaped confessions. His subsequent motion to suppress the statements was denied, he entered a guilty plea, and his conviction was affirmed by a unanimous Appellate Division. A Judge of this court granted defendant’s application for leave to appeal.

People v Murray

Defendant Murray was convicted after a jury trial of second degree murder and first degree robbery. He had participated in the robbery of a man in the victim’s Greenwich Village apartment, during which, according to the prosecution theory, defendant’s accomplice stabbed the victim to death. The vietim was discovered on June 2, 1983, a day or two after his death.

Detectives first connected defendant to the crime several weeks later through information provided by an acquaintance of defendant, Frank Bruno, who was in custody at Hikers Island in connection with unrelated charges. During a July 9 interview, Bruno told the detectives that Murray had told him of his participation in a robbery in the Greenwich Village vicinity that had "gone sour”. Murray had told Bruno that the victim had tried to flee, Murray’s accomplice had grabbed the victim, and the two had fled the apartment with "blood in the hallway and blood all over the place”.

The investigators obtained a set of Murray’s fingerprints from police in New Jersey, where defendant lived, but due to the poor quality of the prints were unable to determine if they matched an unidentified print found in the victim’s apartment. Several months went by, apparently with few further developments.

On October 26, 1983, defendant was arrested in Manhattan for shoplifting. He was arraigned the following day and a Legal Aid attorney was assigned to represent him. The detectives conducting the homicide investigation learned of this arrest and monitored the progress of the case. Defendant did not appear at the first scheduled date in the shoplifting proceeding but later surrendered on a bench warrant and the case was adjourned to December 6. On December 5, Assistant District Attorney (ADA) Kitsis, who was assigned to the shoplifting case, had a discussion with the ADA in charge of the homicide investigation. Kitsis learned that the police wished to speak to Murray about the homicide and that they could not do so while the shoplifting charge remained pending, although it is not clear from the record that Kitsis knew that Murray was a suspect in the case. In any event, the following day Kitsis successfully moved to dismiss the shoplifting charge, citing "a broad range of factors”.

As the defendant left the courtroom, the homicide detectives approached and asked to talk to him at the station house. He complied and when they arrived at the station, defendant was taken to an interview room, read Miranda warnings and questioned. He quickly confessed to his participation in the robbery and was placed under arrest for murder.

Although the suppression court found that the dismissal of the shoplifting charge was for the purpose of permitting the police to question defendant about the homicide without an attorney present, defendant’s suppression motion was denied. A divided Appellate Division affirmed and one of the dissenting Justices granted defendant permission to appeal to this court.

II.

Defendants contend and the People concede that during the pendency of the prior charges on which defendants were represented by counsel, and of which the investigating authorities were aware, defendants could not have been questioned while in custody, in the absence of counsel, about any of the charges (see, People v Rogers, supra). Defendants further claim that this right was somehow violated because the police attempted to avoid the Rogers proscription by awaiting or prompting the disposition of the pending charges before interrogating them.

To the extent that defendants’ argument assumes that the Rogers right to counsel survived the disposition of the pending charges, it is foreclosed by People v Mann (60 NY2d 792), where we held that uncounseled interrogation on new charges was permissible after the dismissal of prior charges for which the defendant was represented. Similarly, in People v Colwell (65 NY2d 883), we held that, once the pending charge had resulted in a conviction and the defendant was represented only for purposes of an appeal, Rogers did not preclude questioning on unrelated charges.

Defendants claim, however, that these cases must be treated differently than Mann and Colwell because here the police and prosecutors made a conscious decision to refrain from questioning defendants during the period of Rogers protection. This deliberate attempt to "circumvent” Rogers, according to defendants, violated their right to counsel. We disagree.

The right to counsel during pretrial interrogation, one aspect of our State’s constitutional right to counsel (NY Const, art I, § 6), is governed by a core principle: once the right has attached, "the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel” (People v Arthur, 22 NY2d 325, 329; see also, People v Hobson, 39 NY2d 479; People v Donovan, 13 NY2d 148). Many of our decisions in this area have been devoted to determining when this "indelible” right to counsel attaches and have generally been grouped into two distinct lines (see, People v Cunningham, 49 NY2d 203, 208-209).

The first, beginning with People v Di Biasi (7 NY2d 544), holds that questioning the accused in the absence of counsel is precluded, without regard to whether counsel has been retained or assigned, upon the commencement of formal adversary proceedings, either by indictment (People v Settles, 46 NY2d 154; People v Waterman, 9 NY2d 561), arraignment (People v Meyer, 11 NY2d 162) or the filing of a felony complaint (People v Samuels, 49 NY2d 218). The second line of cases extends the right to the earlier, investigatory stage, if the suspect has invoked the right to counsel, either because an attorney has entered the proceeding (People v Hobson, 39 NY2d 479, supra) or because the suspect unequivocally states a desire to consult with an attorney before speaking to the police (People v Cunningham, 49 NY2d 203, supra).

From its inception, however, the rule prohibiting uncounseled interrogation was subject to one well-recognized exception relevant here — the attachment of the right to counsel on one charge, whether by actual representation or by the formal commencement of adversary proceedings, did not preclude questioning of the suspect with respect to unrelated charges (see, People v Taylor, 27 NY2d 327; People v Hetherington, 27 NY2d 242; People v Stanley, 15 NY2d 30). In those cases, the attachment of the right to counsel was considered case-specific, without any effect on other charges.

Thus, we held in People v Taylor (supra) that the entry of an attorney in one proceeding did not cause the right to counsel to attach to unrelated charges, stating: "[T]he thrust of our prior decisions is that once the police learn that an attorney has entered the proceeding, it is offensive to our system of justice, in the absence of a waiver, to permit further questioning by representatives of the People. Implicit in this rationale is the concept that the rule does not obtain unless and until the police or prosecutor learn that an attorney has been secured to assist the accused in defending against the specific charges for which he is held” (id., at 332 [emphasis in original]).

The Taylor exception, however, proved difficult to apply and was soon riddled with its own exceptions. Thus, we suppressed the fruits of uncounseled interrogation on unrelated charges where, for example, the otherwise permissible questioning was tainted by "exploitation” because the police also questioned the defendant about a charge on which he was represented by counsel (People v Ermo, 47 NY2d 863). And in People v Carl (46 NY2d 806, 808), we held that, although the crimes were different, uncounseled interrogation on the second was precluded because it was "sufficiently related” to the charge for which the defendant had been assigned counsel (see also, People v Ramos, 40 NY2d 610 [questioning prohibited where it was unclear whether attorney on pending charge had undertaken to represent defendant on second, unrelated crime]; People v Vella, 21 NY2d 249 [questioning impermissible where crimes, though separate, arose from same transaction and counsel had been assigned on the pending charge]; see generally, People v Whitaker, 75 AD2d 111, 116-117 [Titone, J.]).

Finally, in People v Rogers (48 NY2d 167, supra), we embraced a bright-line rule precluding custodial questioning on any matter in the absence of counsel once a defendant is represented by an attorney, because we recognized "the obvious difficulty encountered in drawing the subtle distinctions necessitated by the interaction of the Hobson and Taylor rules” (id., at 171).

It is important to note, in determining whether the Rogers rule was violated in the cases now before us, that our primary concern in Rogers was that questioning on unrelated charges might interfere with the attorney-client relationship that existed with respect to the pending charges. We noted, for example, that the common thread running through the cases in which we had found the Taylor exception inapplicable (e.g., People v Ermo, supra; People v Carl, supra; People v Ramos, supra) was that in each case the defendant had been represented by an attorney at the time of the questioning (People v Rogers, supra, at 172-173). Most significantly, we stated that the rule was required, in part, because "it is the role of defendant’s attorney, not the State, to determine whether a particular matter will or will not touch upon the extant charge” (id., at 173).

The Rogers decision did not signal a wholesale rejection of the fundamental premise underlying the Taylor exception— that the attachment of the right to counsel on one charge does not create an independent right to counsel with respect to other charges. Rogers created a bright-line rule, not because the Taylor premise was fundamentally flawed, but because it was difficult to apply in cases where questioning on unrelated charges might compromise the right to counsel on the pending charges. Thus the right to counsel recognized in Rogers is not independent, but is instead derived from the existing attorney-client relationship, and is accordingly limited in scope.

For example, in People v Kazmarick (52 NY2d 322), we held that Rogers did not preclude questioning on unrelated charges where the defendant’s right to counsel had attached in a pending case by virtue of the commencement of formal adversary proceedings, but he was not, in fact, represented by counsel on the pending charge. This holding implicitly recognized both the continuing validity of the Taylor premise and the fact that Rogers was concerned with protection of an existing attorney-client relationship with respect to pending charges.

Our decision in People v Colwell (65 NY2d 883, 885, supra) also demonstrates that the Rogers rule is limited in scope to situations in which questioning on unrelated charges could interfere with the right to counsel on pending charges. In holding that Rogers did not apply after the pending charge had resulted in a conviction, we noted that "[a] primary concern underlying Rogers was that a defendant could incriminate himself on the pending charge, on which he is represented, even though the questions ostensibly concern unrelated charges.”

It is clear from these decisions and from the background in which it was decided that Rogers established a derivative and accordingly limited right with respect to unrelated charges in order to protect the direct and full-fledged right to counsel in the pending proceeding. In light of this rationale, a decision by investigators to refrain from questioning a suspect until he or she is no longer represented by counsel on unrelated charges protects the interests with which we were concerned in Rogers as fully as a decision to question the suspect in the presence of counsel while the prior charges are pending.

In addition, we consider that the rule advocated by the defendants would present difficulties in application at least equal to those that prompted us to adopt the bright-line rule of Rogers. It would require police officers, before questioning a suspect, to ascertain whether at any point during the investigation the suspect was represented by counsel on unrelated charges and, if so, whether someone involved in the investigation made a conscious decision to refrain from questioning the suspect at such time in order to "circumvent” the defendant’s right to counsel. Such a requirement would seriously impede investigations and would only benefit those with the longest arrest records.

Similar difficult questions of motive and timing would be presented to suppression courts. In resolving these questions, the courts would find themselves second-guessing, and inevitably interfering with, the prosecutorial prerogative to dismiss a case or delay an arrest. The rules we have adopted and applied here, which focus on the suspect’s status at the time of the interrogation, not only fully protect the interests with which we were concerned in Rogers, but also avoid these problems by providing an objective measure to guide law enforcement officials and the courts.

We note, however, that we are not confronted with the situation hypothesized in People v Osgood (52 NY2d 37, 45, n 2) and alluded to in People v Mann (60 NY2d 792, 794, supra). In Osgood, we held that, for purposes of CPL 30.30, an indictment did not commence a new criminal proceeding, separate from the proceeding earlier commenced by a felony complaint, when the felony complaint had been dismissed for failure to prosecute. We noted that a contrary holding would arguably allow prosecutors to "disattach” the right to counsel under People v Samuels (49 NY2d 218, supra) by temporarily dismissing the charges, only to be reinstated after an uncounseled interrogation (People v Osgood, supra, at 45, n 2). That footnote was later cited in People v Mann (supra, at 794), where we noted that no evidence of such prosecutorial "manipulation” was apparent.

Defendant Murray contends that the dismissal of the shoplifting charges against him was the result of the kind of manipulation we warned about in Osgood but found lacking in Mann. The situation here, however, differs in at least two significant respects from the scenario posited in Osgood. First, in the case before us, the interrogation related to a matter concerning which the right to counsel had never independently attached. Second, there is no indication that the shoplifting charges against Murray were, or could have been, resurrected. Thus, the dismissal of the charges was not the kind of ploy to effect a temporary suspension of the right to counsel which we sought to prevent by our ruling in Osgood. We need not and do not decide what effect such a temporary abandonment of a prosecution would have either on the right to counsel with respect to the dismissed charges or on the derivative right to counsel concerning unrelated matters.

For these reasons, we conclude that the procedures employed by the investigators in these cases did not violate the defendants’ right to counsel and that the suppression motions were properly denied.

Accordingly, in each case the order of the Appellate Division should be affirmed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

In each case: Order affirmed.

       Defendant Murray raises two other points, one concerning the voluntariness of his waiver of rights preceding his confession and the other concerning an alleged error in the trial court’s charge to the jury. To the extent that these arguments are preserved for review, we find them to be without merit.


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    Antoine El Gemayel, Respondent, v Loretta Seaman, Appellant.
    Argued November 17, 1988;
    decided December 20, 1988

      POINTS OF COUNSEL

      Linda M. Cook for appellant.
    I. The giving of legal advice by a foreign attorney, not admitted to practice in New York, to a New York resident and citizen, constitutes the illegal practice of law. (Matter of New York County Lawyers Assn. [Roel], 4 Misc 2d 728, 3 AD2d 742, 3 NY2d 224; Spivak v Sachs, 16 NY2d 163; Finnerty v Siegal, 168 Misc 476; Ginsburg v Fahrney, 45 Misc 2d 777; Blumenberg v Neubecker, 12 NY2d 456; Pugatch v David’s Jewelers, 53 Misc 2d 327; Cheshire Academy v Lee, 112 Misc 2d 1076.) II. As a matter of law, respondent’s testimony as to the identity of his client which was rebutted by appellant was insufficient to meet his burden of proof. (Levess v Goldblum, 23 Misc 2d 234; Paulsen v Halpin, 74 AD2d 990; Matter of Schanzer, 7 AD2d 275, 8 NY2d 972; Matter of Howell, 215 NY 466; Gibson & Chushman Dredging Corp. v Halliburton Co., 111 AD2d 741; Builders Affiliates v North Riv. Ins. Co., 91 AD2d 360; Matter of Hurewitz, 174 Misc 182; Brenner v Miller, 121 Misc 2d 1; Kiser v Bailey, 92 Misc 2d 435; Rees v Gair, 144 App Div 294.) III. An attorney does not meet his burden of proof in an action for quantum meruit when he fails to produce any records. (Jacobson v Sassower, 66 NY2d 991; Miller v Maryland Cas. Co., 114 Misc 2d 713; Jordan v Freeman, 40 AD2d 656; Bordonaro Bros. Theatres v Paramount Pictures, 113 F Supp 196; Matter of Tillman, 259 NY 133; Matter of Mildeberger, 122 Misc 743, 241 NY 528; Reehil v Fraas, 129 App Div 563, 197 NY 64; Noce v Kaufman, 2 NY2d 347; Williams v Dodge, 8 Misc 317; Matter of Jackson, 120 AD2d 309, 69 NY2d 608.) IV. When an attorney withholds records, his testimony should be stricken. (Smith v Malarczyk, 118 AD2d 934; People ex rel. Lombardozzi v McClosky, 17 Misc 2d 1067; Hyosung [America] v Woodcrest Fabrics, 106 AD2d 298, 64 NY2d 934; Matter of Dallal, 31 AD2d 442; Matter of Dougherty, 7 AD2d 163.)

      Donald L. Nicholas and Louise A. Magnarelli for respondent.
    I. Plaintiff did not engage in the unauthorized practice of New York law. (Matter of New York County Lawyers Assn. [Roel], 3 NY2d 224, 355 US 604; Finnerty v Siegal, 168 Misc 476; Spivak v Sachs, 16 NY2d 163; Gonzalez y Barredo v Schenck, 287 F Supp 505, 428 F2d 971; People v Weil, 237 App Div 118; People v Goldsmith, 249 NY 586.) II. The lower courts properly found that a contract existed between plaintiff and defendant. (Paulsen v Halpin, 74 AD2d 990; Carter v Katz, Shandell, Katz & Erasmous, 120 Misc 2d 1009; Ahern v South

      Buffalo Ry. Co., 303 NY 545, 344 US 367; Allegheny Coll. v National Chautauqua County Bank, 246 NY 369; People v Dunbar Contr. Co., 215 NY 416; Carbo v United States, 314 F2d 718; People v Lynes, 49 NY2d 286; Walker Discount Corp. v Sapin, 48 Misc 2d 277; People v Strollo, 191 NY 42; Marcraft Recreation Corp. v Devlin Co., 506 F Supp 1081.) III. Plaintiff is entitled to recover his fees against defendant under the theory of quantum meruit. (Bernstein v Lispenard Realty Co., 53 Misc 273; Matter of Peerless Sales Corp., 104 AD2d 892.) IV. Plaintiff did not willfully withhold evidence from the court. (Azzu v Sherman, 117 AD2d 768.)
   OPINION OF THE COURT

Alexander, J.

The question presented for our review is whether services rendered by plaintiff to defendant in connection with a Lebanese legal matter constituted the unlawful practice of law in New York such that the contract for such services is illegal and therefore unenforceable (Spivak v Sachs, 16 NY2d 163). We agree with the courts below that plaintiffs conduct did not constitute the unlawful practice of law in New York within the meaning of Judiciary Law § 478 and that, therefore, the contract is not void on this ground.

I

The undisturbed factual determinations of the trial court demonstrate that plaintiff, an attorney admitted to practice in Lebanon but not in any jurisdiction in the United States, resides in Washington, D.C., and maintains an office at Georgetown University where he serves as a Middle Eastern law consultant. In April 1982, defendant’s granddaughter Jeneane Aoude was abducted by her natural father from her home in Newton, Massachusetts, in violation of a Massachusetts decree awarding custody to Jeneane’s mother, and defendant’s daughter, Mary Aoude. Jeneane was subsequently located in Lebanon. Referred by the pastor of Mary’s church, defendant and Mary Aoude, then residing together in Phoenix, New York, sought plaintiffs advice on whether Lebanese courts would honor the Massachusetts custody decree. Plaintiff, in a letter addressed to Mary in Massachusetts, rendered his legal opinion that Lebanese courts would honor that Massachusetts decree. He billed Mary $2,000 for this service and was paid in full.

Defendant and Mary Aoude remained in regular contact with plaintiff after he rendered this opinion and, as the trial court found, he subsequently agreed to assist them in getting the child back, while defendant agreed to pay his fee and expenses. The bulk of plaintiff’s services were performed in Lebanon, where he confirmed the child’s exact location, instituted four separate court actions against Mary’s ex-husband, and ultimately assisted Mary in spiriting the child out of Lebanon and back to the United States. Plaintiff’s activities in the United States included the commencement of investigations through his Beirut office, accompanying Mary and her Massachusetts attorney to a Massachusetts court to obtain a copy of the judgment awarding Mary custody which would be recognized in Lebanon, authenticating documents so that they might be used in Lebanon, helping Mary complete a power of attorney form, and assisting her in applying for a Lebanese visa. Plaintiff’s only contacts with New York during this time, however, were his frequent phone calls to Mary arid defendant in Phoenix, New York, to report on and discuss the progress of the case. Additionally, after Mary returned from Lebanon with Jeneane, plaintiff made a single visit to Phoenix to return luggage Mary had left in Lebanon. While in Phoenix, he also discussed his bill with defendant. Plaintiff subsequently mailed a bill for his services to defendant in New York.

When defendant failed to pay the bill, plaintiff commenced this action, asserting causes of action in contract and quantum meruit. Defendant asserted three affirmative defenses: that defendant did not contract with plaintiff as Mary was his client; that enforcement of any contract between the defendant and plaintiff was barred by the Statute of Frauds as there was no signed writing evidencing defendant’s intent to answer for the debt of another (General Obligations Law § 5-701 [a] [2]); and that inasmuch as plaintiff had engaged in the unlawful practice of law (Judiciary Law § 478), any contract for his services was unenforceable. Special Term denied defendant’s motion for summary judgment on the three asserted defenses, but granted partial summary judgment to defendant, limiting plaintiff’s possible recovery to the agreed 75% reduction in his fee such that his maximum recovery would not exceed $22,350 plus $6,000 disbursements. In granting judgment for plaintiff, the trial court held that Special Term’s earlier decision was the law of the case as to the unlawful practice defense, but also independently determined that plaintiffs conduct did not constitute the unlawful practice of law in New York. The court also found that defendant had personally and independently contracted with plaintiff for his services. The Appellate Division modified the judgment to give defendant credit for $5,500 she had previously paid to plaintiff, and as so modified, affirmed. We now affirm.

II

On this appeal, defendant continues to argue that she never contracted with plaintiff and that any contract she may have made with plaintiff is unenforceable absent a signed writing evidencing her intention to pay her daughter’s debt (General Obligations Law § 5-701 [a] [2]). The trial court’s factual finding that defendant personally and independently contracted with plaintiff is dispositive of both these issues. That finding, undisturbed by the Appellate Division and having support in the record, is beyond our review (Loughry v Lincoln First Bank, 67 NY2d 369, 376; Bliss v Ach, 56 NY2d 995, 998; see generally, Cohen and Karger, Powers of the New York Court of Appeals § 108 [rev ed]). Defendant’s contention that plaintiff may not sue to enforce a contract for legal services in New York because plaintiffs conduct in New York constituted the unlawful practice of law in violation of Judiciary Law § 478 is likewise without merit.

Judiciary Law § 478 provides: "It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner * * * without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath.” Its purpose is to protect the public in this State from "the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions” (Spivak v Sachs, 16 NY2d, at 168, supra [construing former Penal Law § 270, the predecessor of Judiciary Law § 478]). As a matter of public policy, a contract to provide services in violation of the statute is unenforceable in our State courts (Spivak v Sachs, 16 NY2d, at 168, supra; see also, McConnell v Commonwealth Pictures Corp., 7 NY2d 465). Moreover, violation of Judiciary Law § 478 is a misdemeanor (Judiciary Law § 485) and its provisions also may be enforced in civil actions by the Attorney-General or a bar association formed in accordance with the laws of this State (Judiciary Law § 476-a).

It is settled that the "law” contemplated by Judiciary Law § 478 includes foreign as well as New York law (Matter of New York County Lawyers Assn. [Roel], 3 NY2d 224). In Roel, we held that former Penal Law § 270, the predecessor of Judiciary Law § 478, prohibited the activities of a Mexican attorney who admittedly practiced foreign law in his New York office by advising members of the public on Mexican law (Matter of New York County Lawyers Assn. [Roel] 3 NY2d, at 230, supra). The practice of Lebanese law likewise falls within the purview of the statute. The issue, however, is whether plaintiff’s activities in New York appropriately can be considered the "practice” of Lebanese law.

The "practice” of law reserved to duly licensed New York attorneys includes the rendering of legal advice as well as appearing in court and holding oneself out to be a lawyer (Spivak v Sachs, 16 NY2d, at 166, supra; People v Alfani, 227 NY 334). Additionally! such advice or services must be rendered to particular clients (Matter of New York County Lawyers Assn. v Dacey, 21 NY2d 694, revg on dissenting opn below 28 AD2d 161 [publishing a book on "How to Avoid Probate” does not constitute the unlawful "practice” of law]) and services rendered to a single client can constitute the practice of law (Spivak v Sachs, 16 NY2d 163, supra).

Spivak held that a California attorney engaged in the unlawful practice of law by assisting an acquaintance in New York with her divorce. In so doing, the California attorney became substantially involved in the client’s New York affairs —spending 14 days in New York attending meetings, reviewing drafts of a separation agreement, discussing the client’s financial and custody problems, recommending a change in New York counsel and, based on his knowledge of New York and California law, rendering his opinion as to the proper jurisdiction for the divorce action and related marital and custody issues (id., at 167). While holding that these activities plainly constituted the "practice” of law, we also recognized that the statute (then Penal Law § 270) should not be construed to prohibit "customary and innocuous practices.” We noted that: "recognizing the numerous multi-State transactions and relationships of modern times, we cannot penalize every instance in which an attorney from another State comes into our State for conferences or negotiations relating to a New York client and a transaction somehow tied to New York” (Spivak v Sachs, 16 NY2d, at 168, supra [citations omitted]).

Here, unlike Spivak, plaintiffs contacts with New York were, as Supreme Court found, incidental and innocuous. Although plaintiff engaged in substantial litigation in Lebanon, where he was licensed, and even arguably provided legal services while in Washington, D.C., and Massachusetts, his contact with New York consisted entirely of phone calls to defendant and her daughter Mary in New York in which they discussed the progress of the legal proceedings in Lebanon. There was but a single visit to Phoenix, New York, after the successful completion of his legal services. We conclude that, in the circumstances of this case, phone calls to New York by plaintiff, an attorney licensed in a foreign jurisdiction, to advise his client of the progress of legal proceedings in that foreign jurisdiction, did not, without more, constitute the "practice” of law in this State in violation of Judiciary Law § 478. (Accord, Gonzalez y Barredo v Schenck, 287 F Supp 505, 525, revd on other grounds 428 F2d 971.) To adopt a per se rule such as advanced by defendant would impair the ability of New York residents to obtain legal advice in foreign jurisdictions on matters relating to those jurisdictions since the foreign attorneys would be unable to recover for their services unless they were licensed both in New York as well as in the foreign jurisdiction.

We do not have occasion to decide, however, whether a contract for legal services, rendered in a foreign jurisdiction to a New York client and which constitute the illegal practice of law in that foreign jurisdiction, is enforceable in this State. Although it is undisputed that plaintiff is not a licensed attorney in either Washington, D.C., or Massachusetts, defendant has failed to allege or prove that plaintiffs conduct in either place was unlawful under the law of that jurisdiction.

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

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

Order affirmed, with costs.


author: Titone, J. Bellacosa, J.

text:
    In the Matter of Lee Pokoik, Respondent, v Department of Health Services, County of Suffolk, et al., Appellants.
    Argued November 15, 1988;
    decided December 20, 1988

      POINTS OF COUNSEL

      E. Thomas Boyle, County Attorney (Derrick J. Robinson of counsel), for the Department of Health Services, County of Suffolk, appellant.
    The court below improperly interpreted Public Health Law § 1340 (2) (a) when it concluded that the subject statute contained no exemption for municipalities. (Matter of McCormick v Axelrod, 91 AD2d 1144; Matter of 121-129 Broadway Realty v New York State Div. of Human Rights, 43 AD2d 754; Munro v State of New York, 223 NY 208; Williams v Williams, 23 NY2d 592; New York State Bankers Assn. v Albright, 38 NY2d 430; United States v American Trucking Assns., 310 US 534; Corning v McCullough, 1 NY 47; Rankin v Shanker, 23 NY2d 111; Matter of Horchler, 37 AD2d 28, 30 NY2d 725.)

      Frank A. Isler for the Village of Ocean Beach, appellant.
    I. In light of its statutory history and the applicable rules of statutory construction, the court below erred in holding that a major change of prior law was intended when title 6 was recodified. (Curcio v City of New York, 275 NY 20; Giblin v Nassau County Med. Center, 61 NY2d 67; Grant Co. v Srogi, 52 NY2d 496; Matter of Horchler, 37 AD2d 28, 30 NY2d 725; Matter of Brooklyn Union Gas Co. v Commissioner of Dept. of Fin., 67 NY2d 1036; Schneider v Schneider, 17 NY2d 123.) II. The court below erred in finding that mere provision of lifeguards at an otherwise natural beach constitutes operation of a "bathing establishment” under the statute. (Sanders v Winship, 57 NY2d 391; State Div. of Human Rights v Genesee Hosp., 50 NY2d 113.) III. Section 1340 has been preempted by Federal law and regulation. (United States v Certain Lands, 476 F Supp 1031; Matter of Marino v Town of Ramapo, 68 Misc 2d 44.) IV. Section 1340 of the Public Health Law would have to be harmonized with ECL article 8. (Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 62 NY2d 965.)

      Irving N. Selkin for respondent.
    I. Section 1340 of the Public Health Law contains no exemption for any municipality. (United States v American Trucking Assns., 310 US 534; Matter of Barton v Lavine, 38 NY2d 785; Giblin v Nassau County Med. Center, 61 NY2d 67; People v Graham, 55 NY2d 144; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of Brooklyn Union Gas Co. v Commissioner of Dept. of Fin., 67 NY2d 1036; Matter of Horchler, 37 AD2d 28, 30 NY2d 725.) II. Appellant Village operates a bathing establishment or bathing beach or bathing place. (Economic Power & Constr. Co. v City of Buffalo, 195 NY 286; Gaynor v Village of Port Chester, 231 NY 451.) III. Section 1340 of the Public Health Law has not been preempted by Federal law. (Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291; Ripley v Storer, 309 NY 506.) IV. The intent of former section 312 of the Public Health Law was not to grant an exemption to a municipality with respect to the construction of sanitary facilities. (Metropolitan Life Ins. Co. v Durkin, 301 NY 376; Flynn v Prudential Ins. Co., 207 NY 315.) V. The construction of mandated toilet facilities has nothing to do with the requirements of the environmental quality review provisions of the Environmental Conservation Law.

      Barry L. Katz for Fire Island Association, Inc., amicus curiae.

    I. The decision of the court below will result in a loss of public access to waterfronts, or at a minimum, the loss of publicly supplied lifeguards. II. Federal preemption is complete on land use issues on Fire Island.
   OPINION OF THE COURT

Titone, J.

The Village of Ocean Beach, which is located on Fire Island, is a small community containing several publicly accessible beaches within its borders. Although access to the Village is limited because motor vehicles are not generally permitted, nonresidents, who may arrive by ferry or boat, often visit the Village’s beaches. Aware that its beaches are used by the public, the Village furnishes lifeguard protection for bathers at the taxpayers’ expense. However, no other facilities for beachgoers are maintained. It is undisputed that there are no toilet or other sanitary facilities available for the use of nonresident beachgoers.

Petitioner commenced the present article 78 proceeding to compel respondent, the Suffolk County Department of Health Services, to enforce Public Health Law § 1340 (2) (a) by requiring the respondent Village to provide toilet facilities for beachgoers. The trial court dismissed the petition after concluding that the statute’s history indicated that municipalities that maintain public bathing places free of charge were intended to be exempt from the requirements of the statute. The Appellate Division disagreed, holding that the absence of an express exemption in the statute is dispositive. Accordingly, the court reinstated the petition and remitted for further development of the record on the question whether toilet facilities that are "conveniently accessible” to beachgoers (10 NYCRR former 6.15 [a]) may be constructed on the Village’s beaches, some of which are included within a Federally designated "Dune District” (see, 36 CFR 28.3 [c]; 28.4 [b] [2]), without running afoul of the Fire Island National Seashore Act (16 USC § 459e). Following its determination, the Appellate Division granted respondents leave to appeal and certified the following question of law: "Was the order of this court dated March 21, 1988, properly made?”

We agree with the Appellate Division that the Village is not exempt from the requirements of Public Health Law § 1340 (2) (a). That statute imposes a duty upon the owner of "any bathing establishment of any kind” to "provide separate toilet rooms * * * constructed in a manner approved by the local board of health * * * and in such a way as not to contaminate the waters used by the bathers”. Although Public Health Law § 1341, which deals with safety requirements at bathing establishments, exempts municipally maintained bathing establishments from its terms (see, Public Health Law § 1341 [5]), Public Health Law § 1340, which deals with the entirely separate area of sanitary requirements, contains no analogous provision for a municipal exemption. Similarly, while subdivision (1) of Public Health Law § 1340, which prohibits the maintenance of "bathing establishments” within 500 feet of a sewer connection, applies only to bathing establishments operated "for pay, or any consideration,” subdivision (2) of that same section is expressly made applicable to "any bathing establishment of any kind”. Thus, the plain language of the statute belies any claim that the beach facilities at issue here are exempt from the "toilet room” requirement because they are owned by a municipality and made available to the public without any charge.

It is well established that "[t]he fact that an act contains no exception or saving clause creates a strong presumption that the Legislature intended none” (McKinney’s Cons Laws of NY, Book 1, Statutes § 213, at 374; see also, § 74). This presumption is even stronger where, as here, the precise exceptions that are claimed to be implicit are explicitly provided for elsewhere in the statute (McKinney’s Statutes § 240; see, Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340).

The presumption that no exemptions for municipalities or beaches operated without charge were intended, which flows quite naturally from the absence of any exempting language in the statute, is not overcome in this case by an analysis of the statute’s history. Before the Public Health Law was recodified in 1953 (L 1953, ch 879), the rules governing both sanitary and safety requirements for "bathing establishments” were all collected in former Public Health Law § 312. The first requirement of that lengthy provision was made applicable only to "bathing establishments” operated "for pay, or any consideration,” and subsequent references in the statute to "such bathing establishments” made clear that the rest of its requirements were similarly limited in effect. Further, the last sentence of the statute explicitly exempted municipalities from all of the statute’s requirements (L 1905, ch 454, § 1, as amended by L 1942, ch 456; see, Curcio v City of New York, 275 NY 20).

When section 312 was reenacted under the recodified Public Health Law, it was placed under title 6 and divided into two substantive sections (Public Health Law §§ 1340 [sanitary requirements], 1341 [safety requirements]), and a third section dealing with enforcement (§ 1342). The exemption for municipalities was carried over into the substantive sections dealing with safety requirements, but no similar exemption was included in the section dealing with sanitary requirements. Additionally the "for pay” limitation was retained in the subdivision addressing the location of sewer connections but was omitted from the subdivision requiring the erection of toilet facilities (Public Health Law § 1340 [1], [2] [a]).

Relying upon this history and a routine statement by the recodification’s drafters that "[n]o substantive changes in the existing law were reflected in the new recodified law” (State Health Dept Mem, 1953 NY Legis Ann, at 202), respondents would have us conclude that these rather significant omissions were simply the products of legislative oversight that may be corrected by judicial construction. We decline this invitation to "correct” a legislative enactment to make it correspond to respondents’ belief as to what the Legislature probably meant. Although it has been stated that, absent a clear expression of legislative intent, minor changes in verbiage appearing in recodifications should not be construed as working a substantive change in a long-standing rule (see, e.g., Matter of Brooklyn Union Gas Co. v Commissioner of Dept. of Fin., 67 NY2d 1036, 1039; Schneider v Schneider, 17 NY2d 123, 127), such statements have no application in a case such as this, where an entire sentence of a predecessor statute containing a single, integrated concept (i.e., an exemption for municipalities) has been omitted and the statute as a whole has been completely recast. "If some parts of a statute are omitted upon its revision, it is not the function of the courts to supply such parts; on the contrary, those parts are considered as repealed” (McKinney’s Cons Laws of NY, Book 1, Statutes § 422, at 596).

By urging that we take the drafters’ declaration of "no intended change” literally, respondents are, in effect, asking us to ignore all of the legislatively drawn distinctions and to rewrite the law to conform to its prerevision form. Neither the case law nor the rules of statutory construction permits such extensive judicial redrafting (see, Matter of Barton v Lavine, 38 NY2d 785, 787).

Respondents’ remaining arguments are unpersuasive. The contention that the Village is not operating a "bathing establishment” within the meaning of Public Health Law § 1340 lacks merit. The contention is based upon a purported distinction between "bathing establishments” and "bathing beaches”, terms which are used in the disjunctive elsewhere in article 13, title 6 of the Public Health Law (Public Health Law § 1341 [5]). However, while the body of Public Health Law § 1340 refers only to "bathing establishments”, the section is entitled "[bjathing places; sanitary requirements,” providing at least some indication that the Legislature used the terms interchangeably. In the absence of a definitive showing that the Legislature considered "bathing establishments” and "bathing beaches” to have different characteristics and that the Village’s beaches fall only within the latter category, we must conclude that the Village’s beaches are within section 1340’s intended coverage.

Respondents’ alternative argument — that requiring the construction of toilet facilities on the Village’s beaches would violate the Federal rules for "Dune Districts” under the Fire Island National Seashore Act (16 USC § 459e; see, 36 CFR part 28) — cannot be resolved on the present record. Although most of the Village’s beaches are located in a designated "Dune District”, within which construction is absolutely prohibited (see, 36 CFR 28.3 [c]; 28.4 [b] [2]), a question of fact remains as to whether there are locations that are within the Village but outside of the "Dune District” where a toilet facility available to beachgoers may be erected. Further, the possibility that portable toilet facilities may be installed without bringing the Village into conflict with the "Dune District” rules has yet to be explored. Thus, the Appellate Division’s decision remitting for further proceedings was appropriate.

Finally, to the extent that there may be fiscal or practical consequences to requiring municipal bathing establishments to conform to the Public Health Law’s strictures concerning toilet facilities, those concerns are more appropriately addressed to the Legislature, which may weigh the costs against the public health interests involved. Indeed, the record before us is devoid of evidence to support the dissenters’ contentions that constructing and maintaining toilet facilities pose "a costly and onerous burden among the various statutory requirements” (dissenting opn, at 718). Moreover, the dissenters’ exclusive emphasis on the supposed high cost and difficulty of maintaining toilet facilities ignores the competing value of expanding the public’s use of the Village’s beaches by making them practically more accessible to the nonresidents who might wish to use them. In the final analysis, issues such as whether the Legislature could sensibly require noncommercial beach owners to provide toilet facilities while exempting them from other sanitary requirements and whether the other safety and sanitary requirements of the statute "are equally salutary and important from a public health perspective” (see, id.) are judgments that only the Legislature should make.

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

Bellacosa, J.

(dissenting). Because I believe the Village’s public beaches are not and were not intended to be "bathing establishments” within the words or purview of this regulatory provision (Public Health Law § 1340), I dissent and vote to reverse the order of the Appellate Division and reinstate the judgment of the Supreme Court dismissing the petition.

The Village of Ocean Beach — part of Fire Island, Suffolk County — is a small residential community bordered on the south by the Atlantic Ocean and on the north by the Great South Bay. The Village, within the Federally protected Fire Island National Seashore (16 USC § 459e), enjoys publicly accessible open beaches for which it has furnished some lifeguard protection since 1921 at Village taxpayers’ expense. No other services or facilities are provided or are available at the beaches. There are no admission fees, restrictions, or other considerations imposed for anyone to use the Village’s beaches.

Petitioner, a Village resident, seeks to compel the Suffolk County Department of Health to enforce section 1340 (2) of the Public Health Law by requiring the Village to provide toilet facilities for the use of beachgoers. Respondents in the article 78 proceeding — appellants here — moved for summary judgment asserting that the Village beach is not required to provide toilet facilities because (1) the Public Health Law expressly exempts municipal beaches from the safety and sanitary requirements; and (2) the statute is only applicable to commercial, fee-generating "bathing establishments”. I agree that the claimed municipal exemption is unavailing. However, the Village should prevail on the second ground that the toilet facilities requirement is not applicable at all to its noncommercial untariffed beaches because it is not a "bathing establishment” just because it happens to provide a lifeguard.

The sanitary and safety requirements for public "bathing establishments” are prescribed in title 6 of the State Public Health Law, enacted in its present form as part of a recodification of the entire Public Health Law (L 1953, ch 879). Prior to the recodification, the pertinent requirements were found in former Public Health Law § 312, which provided in part: "It shall be unlawful for any person to maintain, either as owner or lessee, any bathing establishment of any kind, in this state, for the accommodation of persons, for pay, or any consideration, at a point less than five hundred feet from any sewer connection * * * it shall be the duty of such owner or lessee [emphasis added] to provide separate toilet rooms * * * it shall be the duty of every person maintaining, as owner or lessee, any bathing establishment of any kind along the seashore of this state for the accommodation of persons for pay, to provide, for the safety of such bathers * * * Nothing in this section shall be construed in any way to affect any bathing establishments, in any city or municipality, or any bathing establishments or bathing beaches operated by a regional state park commission, at which there is maintained at public expense a life-saving guard” (added L 1909, ch 49, amended L 1942, ch 456 [emphasis added]).

Under this predecessor version, the Village’s beaches and bathing establishments that were untariffed enjoyed a compíete and express exemption from the sanitary and safety requirements imposed on tariffed bathing establishments. In the 1953 recodification, the sanitary and safety requirements applicable to tariffed bathing establishments were relocated in three separate sections. The recast Public Health Law § 1340 (1) and its counterpart Public Health Law § 1341 continued to exempt from the sewage and safety requirements all bathing establishments that were free of charge. The "municipal exemption” was recast in section 1341 (5) to specify the exemption of municipal bathing establishments and beaches operated by the State Park Commission only as to the safety requirements of the statute.

The rearranged subdivision relating to toilet facilities, Public Health Law § 1340 (2) (a) — the key provision at issue— omitted the formerly qualifying and referencing word "such” and prescribed in pertinent part as follows:

"2. It shall be the duty of the owner, lessee or any other person maintaining any bathing establishment of any kind:

"(a) to provide separate toilet rooms, with water-closets properly provided with sanitary plumbing, constructed in a manner approved by the local board of health of the health district wherein the bathing establishment is located, and in such a way as not to contaminate the waters used by the bathers” (emphasis added).

Quite simply, petitioner contends — and the majority agrees with him — that the plain wording of the recodified statute as it relates to toilet facilities no longer exempts municipal bathing beaches that are untariffed, and that by omitting the word "such” from the first sentence of Public Health Law § 1340 (2), the Legislature intended to rescind that separate long-established exemption. I disagree.

To be sure, the general rule of construction is that a statute is to be construed according to the ordinary meaning of its words (Matter of Capital Newspapers v Whalen, 69 NY2d 246, 251; Sega v State of New York, 60 NY2d 183, 190-191; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 111, at 225). We have also said, complementarily, that a literal interpretation of the words used will not be accorded where to do so would produce an absurd result (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675; Zappone v Home Ins. Co., 55 NY2d 131; Matter of Chamberlain Trust v Litke, 73 NY2d 824, 826; Matter of Town of New Castle v Kaufmann, 72 NY2d 684, 686 [decided today]; McKinney’s Cons Laws of NY, Book 1, Statutes § 111, at 233-234). Courts look to a statute as a whole so as to construe it in a manner consistent with the presumption that unreasonable results are not intended by the Legislature (see, New York Pub. Interest Research Group v Town of Islip, 71 NY2d 292, 302; McKinney’s Cons Laws of NY, Book 1, Statutes § 143).

We have also approached the general "plain meaning” rule from another angle when a minor change in statutory language emerges from a recodification of the entire statutory framework. In that instance, the presumption is against any substantive change in the law, absent clear expression of legislative intent to effect same. Thus, a meaning and effect contrary to the predecessor version will not be imported (Matter of Brooklyn Union Gas Co. v Commissioner of Dept. of Fin., 67 NY2d 1036, 1039; see also, Schneider v Schneider, 17 NY2d 123, 127; McKinney’s Cons Laws of NY, Book 1, Statutes § 422).

These specific approaches to the general "plain meaning” rule make good sense and good law here. First, it is clear that title 6 of the Public Health Law was originally enacted to impose certain minimum safety and sanitary requirements on commercial, fee-generating bathing establishments. It is inexplicable that the Legislature would have intended to require noncommercial (in this case municipal) beach owners to provide and pay for the construction and maintenance of toilet facilities — a costly and onerous burden among the various statutory requirements — while continuing to exempt these same establishments from the other safety and sanitary requirements of the statute. The latter are equally salutary and important from a public health perspective and could be more easily and more inexpensively implemented. Yet, that is the effect of the majority’s slavish application of the recodified Public Health Law as it pertains to sanitary facilities.

The most remarkable aspect of all is that we are asked to ascribe this critical changeover in the statute and in its policy implications with severe municipal consequences in defiance of the recodifiers’ unequivocal statement that "[n]o substantive changes in the existing law were reflected in the new recodified law” (see, State Health Dept Mem, 1953 NY Legis Ann, at 202).

Finally, petitioner’s view prevails that the Village has become a "bathing establishment” within the meaning of this statute because it provided lifeguard protection. That then triggers the toilet facilities requirement. Apparently, all the Village has to do to unilaterally exempt itself from this newly declared Public Health Law regulatory responsibility is to discontinue or withdraw the lifeguard protection. It makes no sense to encourage this new risk to the public safety. Moreover, important legislative prerogatives should not be so unnecessarily sacrificed or facilely transferred to the unilateral disposal of the regulatee.

In my view, the trial court properly determined that there was no clear legal right to article 78 relief compelling the County and the Village to do something so dubious and arguable under the Public Health. Law provision, and the petition was properly dismissed.

Judges Simons, Alexander and Hancock, Jr., concur with Judge Titone; Judge Bellacosa dissents and votes to reverse in a separate opinion in which Chief Judge Wachtler and Judge Kaye concur.

Order affirmed, etc.

      . The dissenters also rely on the drafters’ "no substantive changes” declaration, as well as on the presumption that language changes resulting from recodifications do not lead to substantive changes in the absence of a clear legislative expression to the contrary (dissenting opn, at 718). However, the dissenters acknowledge that the recodification of the Public Health Law resulted in at least one substantive change, i.e., the elimination of municipalities’ automatic exemption from the toilet facility requirement in Public Health Law § 1340 (2) (a) (see, dissenting opn, at 716, 717). Thus, even under the dissenters’ analysis, neither the drafters’ "no substantive changes” declaration nor the "presumption” on which they rely furnishes an ironclad rule.

      . The Appellate Division’s remand for a determination as to whether toilet facilities "conveniently accessible” to beachgoers could be erected was based upon a provision of the Sanitary Code that was in force at the time of its decision (10 NYCRR 6.15 [a]). In March of 1988, the provision on which the Appellate Division relied was replaced with a provision requiring the construction of toilet facilities on all bathing beaches unless such facilities are already available within 300 feet of the beach (10 NYCRR 6-1.15). Thus, in addition to determining whether toilet facilities can be built, or portable facilities installed, without running into conflict with the Federal "Dune District” rules, the court on remand will have to determine whether already existing toilet facilities within a 300-foot radius obviate the need for the Village to take action.

      . Contrary to the dissenters’ expressed concern, we do not believe that our decision in this case will prompt wholesale abandonment by municipalities of the lifeguard services they now provide. Municipal governments are, by and large, highly responsible entities, and it should not be assumed that they would willingly expose the bathers who will inevitably use their beaches to increased safety risks simply to avoid constructing toilet facilities.


author: Simons, J.

text:
    Herzog Brothers Trucking, Inc., Also Known as Herzog Brothers, Inc., et al., Appellants, v State Tax Commission et al., Respondents.
    Argued November 17, 1988;
    decided December 22, 1988

      POINTS OF COUNSEL

      Joseph E. Zdarsky and Guy J. Agostinelli for appellants.
    Defendant’s new regulations, insofar as they relate to Herzog’s sales to Indians on Indian reservations, are preempted by Federal law. (Warren Trading Post v Tax Commn., 380 US 685; Central Mach. Co. v Arizona Tax Commn., 448 US 160; Free v Bland, 369 US 663; Montana v Blackfeet Tribe, 471 US 759; McClanahan v Arizona State Tax Commn., 411 US 164; Washington v Confederated Tribes, 447 US 134; California Bd. of Equalization v Chemehuevi Tribe, 474 US 9.)

      Robert Abrams, Attorney-General (Lew A. Millenbach, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
    When viewed in the light of defendants’ new regulations, and of controlling Federal case law, the State’s "pass on and collect” taxation scheme is a proper exercise of the State’s regulatory authority and should be upheld. (Moe v Salish & Kootenai Tribes, 425 US 463; Washington v Confederated Tribes, 447 US 134; Warren Trading Post v Tax Commn., 380 US 685; Central Mach. Co. v Arizona Tax Commn., 448 US 160; Kerr-McGee Corp. v Navajo Tribe, 471 US 195; White Mountain Apache Tribe v Bracker, 448 US 136.)

      Thomas C. Brady and Douglas B. L. Endreson for the Seneca Nation of Indians, amicus curiae.

    I. Federal law bars the application of the State regulations to Indian tribes and Indian rétailers. (United States v Wheeler, 435 US 313; Worcester v State of Georgia, 6 Pet [31 US] 515; Cherokee Nation v State of Georgia, 5 Pet [30 US] 1; New Mexico v Mescalero Apache Tribe, 462 US 324; McClanahan v Arizona State Tax Commn., 411 US 164; Warren Trading Post v Tax Commn., 380 US 685; United States v Kagama, 118 US 375; White Mountain Apache Tribe v Bracker, 448 US 136; Montana v Blackfeet Tribe, 471 US 759; County of Oneida v Oneida Indian Nation, 470 US 226.) II. Alternatively this case should be remanded to the trial court to permit the parties an opportunity to develop a factual record. (Moe v Salish & Kootenai Tribes, 425 US 463; New Mexico v Mescalero Apache Tribe, 462 US 324; Ramah Navajo School Bd. v Bureau of Revenue, 458 US 832; Central Mach. Co. v Arizona Tax Commn., 448 US 160.)
   OPINION OF THE COURT

Simons, J.

This appeal questions whether the State may require the corporate plaintiff, a wholesale distributor of motor fuel to Seneca Indian retailers on the Allegany and Cattaraugus Reservations, to prepay taxes on motor fuel delivered to the retailers for resale to Indian and non-Indian consumers. We first considered the question in May 1987 on appeal by plaintiffs (69 NY2d 536). At that time, we held that the Federal Indian trader laws preempted State regulation of the corporate plaintiff and that the Appellate Division erred, therefore, in denying its application for an order preliminarily enjoining defendant from proceeding against it. The State Tax Commission then petitioned the Supreme Court of the United States for a writ of certiorari to review our decision. The Supreme Court granted the writ, vacated the judgment and remanded the case to us "for further consideration in light of proposed regulations” published by this State’s Commissioner of Taxation and Finance effective November 30, 1988 (20 NYCRR 414.6, 414.7) and applicable to sales made after January 1, 1989 (see, State Tax Commn. v Herzog Bros. Trucking, — US —, 108 S Ct 2861). Now, upon reargument following remand, we adhere to our prior determination.

Plaintiff Herzog Brothers Trucking, Inc. is a Pennsylvania corporation engaged in the wholesale and retail distribution and sale of motor fuels. In 1984 and 1985 it distributed motor fuels to the Seneca Nation of Indians by selling wholesale to authorized Indian retail establishments located on the Allegany and Cattaraugus Reservations. Those transactions constituted Herzog’s only sales in this State.

New York subjects sales of motor fuel to both sales and motor fuel excise taxes. Under prior law the sales tax was collected at the time motor fuels were sold to the ultimate consumer and the motor fuel tax was collected upon the first sale by the distributor (see, Tax Law former arts 12-A, 28). Indian retailers claimed exemption from State taxation, however, and refused to collect or pay either tax. Because of this the taxes were being avoided by non-Indians purchasing untaxed motor fuels on the reservation. Accordingly, the Legislature amended the statute on June 1, 1985 (L 1985, ch 44, § 20, adding Tax Law § 1102) to impose motor fuel and sales taxes on the importation of motor fuels by the distributor of such fuels at the time the fuel is imported or first sold (Tax Law § 284 [1]; § 1102 [a] [i], [ii]). Under the statutory scheme, both taxes are then passed through to the retailer, ultimately to be borne by the retail consumer (see, Tax Law § 289-c [1], [2]; § 1102 [d]; § 1132 [a]; § 1133 [a]). The statute also provides that all motor fuel sold in the State is presumed to be subject to the motor fuel tax (Tax Law § 285-a). Only non-Indians are subject to the taxes, however; Indian consumers are exempt by Federal law. Accordingly, the statute allows the distributor a refund of previously paid taxes on fuel sold to Indians.

In 1984 and 1985 defendant imposed an assessment of approximately $480,000 against Herzog for taxes due from sales to the Indian retailers. Herzog filed petitions challenging these assessments, claiming exemption because all their sales were to Indians on Indian reservations. In November 1985, while administrative proceedings were pending, plaintiffs instituted this action seeking a declaration of unconstitutionality of the taxes and the procedures employed to collect them. They moved for a preliminary injunction to restrain defendants from taking any action to impose or collect the taxes. Supreme Court granted the motion but the Appellate Division reversed and denied the motion. It thereafter granted leave to appeal to this court on a certified question and we reversed its order (69 NY2d 536, supra).

Our determination in favor of the plaintiff rested upon our conclusion that Herzog was a "trader” within the meaning of the Federal Indian trader laws, i.e., "[a]ny person desiring to trade with the Indians on any Indian reservation” (25 USC § 262), and that under Federal statutes, and the Supreme Court decisions construing them, the State’s action imposed an impermissible burden upon trade with reservation Indians, an area preempted by Federal law (69 NY2d, at 544-546, supra). Upon granting certiorari, the Supreme Court invited the Solicitor General of the United States to submit a brief amicus curiae. In his brief, the Solicitor General agreed with this court that plaintiff was an Indian trader and that insofar as the statutory scheme required it to prepay taxes on fuel that would ultimately be sold to Indian retail customers on the reservation, in effect requiring the routine payment of an invalid tax, it imposed an impermissible burden under the Indian trader statutes. He believed, however, that we interpreted the language of the statutes and the cases construing them too broadly. He contended that cases permitting the imposition of minimal burdens of collection on Indian retailers would justify the imposition of similar burdens on Indian traders, parties one step further removed from the taxable event in the chain of distribution. He suggested vacatur of the judgment and remand so that we might review the statutes as applied under new regulations proposed by New York’s Commissioner of Taxation and Finance but not yet adopted. The cases relied upon by the Solicitor General were fully considered by us in our earlier opinion. They rest on an analysis of the permissible limits of State interference with the sovereignty of Indian nations. Our decision rested on the Supremacy Clause and the preemption by the Federal Government of the regulation of Indian traders (see, Central Mach. Co. v Arizona Tax Commn., 448 US 160; Warren Trading Post v Tax Commn., 380 US 685). In the absence of a reversal by the Supreme Court, we assume that our interpretation of those decisions and our application of them to the facts before us represents the present state of the law on the subject.

The Supreme Court order vacating the judgment remanded the case to us, however, for an opportunity to reconsider our decision in light of new regulations proposed by the Commissioner of Taxation and Finance not before us on the prior appeal but effective November 30, 1988. Defendant also requests us to address them, noting that the statutes are effective only insofar as collection of the taxes imposed is not precluded "by reason of the United States constitution and of laws of the United States enacted pursuant thereto” (Tax Law § 284 [1]; § 1102 [a]). Thus, while the tax collection scheme, and the regulations implementing it, applied to the 1984 and 1985 sales may have been unconstitutional, it is defendant’s contention that the statutes as implemented by these new regulations impose no unconstitutional burden on Indian traders and they ask us to modify our earlier decision accordingly.

The new regulations apply only to sales of motor fuels after January 1, 1989 and it is not apparent from the record that plaintiff will continue to sell to the Indians. Thus, even assuming there were no factual issues to be determined when applying them, a decision on their validity upon the present record would constitute an advisory opinion involving hypothetical future transactions of unknown parties. It could "have no immediate effect and may never resolve anything” because defendant may not have occasion to assess tax payments against the corporate plaintiff or any other distributor under the circumstances presented by this appeal (see, New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531; see also, Cuomo v Long Is. Light. Co., 71 NY2d 349). Indeed, the briefs before the court indicate that the State and the Indians are presently attempting to negotiate a different solution to the tax collection problem. We express no opinion, therefore, on whether the statutes as implemented by the new regulations generally meet constitutional standards.

Finally, the Attorney-General asks us to consider the validity of the assessments in light of the Hayden-Cartwright Act (4 USC § 104) which permits States to tax motor fuels sold on "United States military or other reservations”. This statute was not cited by defendant on the prior appeal to this court, not urged as a ground for reversal before the Supreme Court, and not identified by the Supreme Court as a matter for our consideration on remand. In that the subject is now before us for the first time, we decline to consider it (see, 22 NYCRR 500.11 [g] [3]).

Accordingly, upon reargument following remand from the Supreme Court of the United States, this court adheres to its May 7, 1987 decision of reversal (69 NY2d 536, supra).

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

Upon reargument, following remand from the Supreme Court of the United States, this court adheres to its May 7, 1987 decision of reversal (69 NY2d 536), without costs.

       Our order remitted the matter to the Appellate Division for consideration of undetermined questions. Upon remand, the Appellate Division determined that plaintiff had established its likely success on the merits and affirmed the trial court’s prior grant of a preliminary injunction (132 AD2d 809). That subsequent decision is not affected by the matter now before the court because of our decision on this reargument.


author: Kaye, J.

text:
    Kalisch-Jarcho, Inc., Respondent, v City of New York, Appellant.
    Argued November 22, 1988;
    decided December 22, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Barry P. Schwartz, Fay Leoussis and John F. Grubin of counsel), for appellant.
    The court below erred in affirming the Supreme Court’s declaration that plaintiff is not contractually obligated to perform certain work. The entertaining of plaintiff’s application for, much less the granting of, such relief prior to the completion of the parties’ contract, is contrary to the express terms of that agreement and public policy, is inappropriate under the circumstances of this case, and is unnecessary since plaintiff has an adequate remedy at law. (Board of Educ. v Nyquist, 50 NY2d 889; Automated Ticket Sys. v Quinn, 90 AD2d 738, 58 NY2d 949; Walsh v Andorn, 33 NY2d 503; Frasca v Frasca, 129 AD2d 766; Anonymous v Axelrod, 92 AD2d 789; Slatt v Slatt, 64 NY2d 966; Matter of Western Union Tel. Co. [American Communications Assn.], 299 NY 177; Matter of Doniger v Rye Psychiatric Hosp. Center, 122 AD2d 873, 68 NY2d 611; Mandel v 201 W. 16 Assocs., 121 AD2d 910; Fiore v Fiore, 46 NY2d 971.)

      David E. Montgomery and Frederick R. Rohn for respondent.
    I. Since the work in question is clearly beyond the limits of Kalisch-Jarcho’s contract, Kalisch-Jarcho properly refused to perform. (Borough Constr. Co. v City of New York, 200 NY 149; Weil Plumbing Corp. v State of New York, 294 NY 6; Seglin Constr. Co. v State of New York, 262 App Div 782; Van Valkenburgh, Nooger & Neville v Hayden Publ. Co., 30 NY2d 34.) II. The City’s officials violated section 6-110 of the New York City Administrative Code in ordering Kalisch-Jarcho to perform the work in question. III. Declaratory judgment was a proper form of relief on the facts of this case. (City of Rochester v Vanderlinde Elec. Corp., 56 AD2d 185; Matter of Morgenthau v Erlbaum, 59 NY2d 143; Wollard v Schaffer Stores Co., 272 NY 304; Walsh v Andorn, 33 NY2d 503; Frasca v Frasca, 129 AD2d 766.)
   OPINION OF THE COURT

Kaye, J.

This appeal centers on a New York City contract provision requiring a contractor during a construction project to perform disputed work directed by the City and postpone any claim for additional compensation until after completion of the work. While the contractor urges that this provision violates the public policy articulated in Borough Constr. Co. v City of New York (200 NY 149), which protects against collusive claims for extra work, we conclude that the concern expressed in Borough is inapplicable here. The contractual procedure for resolving disputed work claims should have been honored in this case, and the contractor’s midstream request for a declaration of contract rights during the project denied.

In March 1985, the City solicited bids for four prime contracts involved in constructing a new broom depot and salt storage building for the Department of Sanitation. Kalisch-Jarcho, with a bid of $999,547, received the plumbing contract. Separate contracts were awarded for the general construction work; the heating, ventilation and air conditioning; and the electrical work.

At a meeting the day Kalisch-Jarcho was awarded the plumbing contract — and even before contract-signing — a dispute surfaced regarding the concrete pads to be installed below the underground fuel tanks. While Kalisch-Jarcho was required to install the tanks and concrete casing around them, at that meeting it expressed the view that the excavation for and installation of the concrete pads below the tanks was the responsibility of the general construction contractor; the City representatives replied that the responsibility was Kalisch-Jarcho’s. Shortly after work began, the project architect, relying on contract diagrams and other contract provisions, notified Kalisch-Jarcho that it was required to excavate for and install the concrete pads. After several fruitless exchanges, the matter was submitted for resolution to the Commissioner of the Department of Sanitation, pursuant to the procedure set forth in article 27 of the contract. The Commissioner determined that it was "clearly evident that the intent of the contract documents was to require the Plumbing Contractor to perform the subject items of work”, and he directed Kalisch-Jarcho to proceed with the disputed work, adding that it could, by filing a written protest, preserve its right to claim additional compensation after contract completion.

The contractor, however, refused and instead commenced this action for a declaratory judgment that it was not contractually obligated to perform the disputed work. Citing Borough Constr. Co. v City of New York (supra), it pleaded that declaratory relief was justified as the disputed work was clearly outside the contract and under Borough would therefore not be compensable even if performed under protest. In opposition to Kalisch-Jarcho’s motion for summary judgment, and in support of its own motion to dismiss, the City relied on article 27 of the contract, contending that even if declaratory relief could be sought for disputed work clearly outside the agreement, here the work was at least arguably within the contract. Both the project architect and the Commissioner had reasonably determined that the subject work was plaintiffs contractual responsibility, and that conclusion, in the City’s view, should be final and binding.

The trial court granted Kalisch-Jarcho’s summary judgment motion, concluding that it was not contractually obligated to perform the work before seeking judicial relief. The court found that the Commissioner was clearly wrong in his determination that the issue was at least fairly debatable, and that under Borough the contractor could not have recovered the value of the work had it complied with the Commissioner’s direction.

By a divided vote, the Appellate Division affirmed, holding that under Borough Kalisch-Jarcho was not required to perform the disputed work before seeking judicial resolution of the question whether the work was clearly beyond the limits of the contract (135 AD2d 262). While acknowledging that article 27 served an important public interest, the court nonetheless concluded that it failed to accord the City protection, as does Borough, against conspiracies between a contractor and a municipal employee to obtain payment for additional work not contemplated by contract. The court then agreed with the trial court that the disputed work was not Kalisch-Jarcho’s contractual responsibility, and that the contractor was not obligated to perform it. In dissent, the late Justice Leonard H. Sandler concluded that article 27 was not violative of Borough or the public policy that motivated it, and that the disputed work was not clearly beyond the contract but rather the subject of honest dispute (135 AD2d, supra, at 269). We are in essential agreement with the dissent, and now reverse.

A declaratory judgment action may be an appropriate vehicle for settling justiciable disputes as to contract rights and obligations (see, Matter of Public Serv. Commn. v Norton, 304 NY 522, 529; see also, Restatement [Second] of Contracts § 345, comment d, at 107-108; 5 Corbin, Contracts § 991, at 4-5; 4 Williston, Contracts § 601, at 316-317 [3d ed]). But parties to an agreement may not seek a declaration of their contract rights when their agreement specifies a different, reasonable means for resolving such disputes (see, e.g., Rifkin v Rifkin, 118 NYS2d 322 [Sup Ct], affd 281 App Div 1035; 16 Williston, Contracts § 1919A, at 155-156). A declaratory judgment in. such circumstances may be unnecessary (see, Walsh v Andorn, 33 NY2d 503, 507; James v Alderton Dock Yards, 256 NY 298, 305), and could also enable parties to circumvent their contractual undertakings (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3001:14, at 364-365).

Article 27 of the contract delineates the agreed procedure to be followed for resolving disputes arising during the project as to whether certain work is or is not within the contract. When, as the last step in the process, the Commissioner determines that the disputed work is contract work and so notifies the contractor, the contractor has specifically undertaken an obligation to perform that work and postpone any claim for additional compensation until after contract completion. In view of the agreed procedure for resolving disputed work claims, and in view of the nature of the disputed work here, we conclude that the Appellate Division abused its discretion by affirming the declaratory judgment.

Kalisch-Jarcho does not contest the applicability of the contract provision to which it agreed, or argue that this was anything but an arm’s-length bargain between sophisticated parties (see, Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384). Nor does it dispute the City’s assertion that article 27 was designed to protect the public interest in avoiding costly, disruptive delays during public works projects. The nub of the contractor’s contention is that the contract provision cannot control because it violates the public policy articulated in Borough Constr. Co. v City of New York (supra). We disagree. The public policy concerns defined in Borough are not implicated here, and the contract should be honored.

In Borough, a contractor sought recovery for extra work and materials in the construction of a large sewer for the City of New York. The City engineer in charge ordered the contractor to lay a portion of the sewer in a more expensive cement than agreed, and also to furnish an elevator to lower automobiles into the sewer, clean up the sewer and illuminate it with candles for what this court characterized as a "so-called inspection trip of the city officials”. (200 NY 149, 152, supra.) (Judge Learned Hand later described the work as making access "more genial for those attending the festivities incident to the opening” of the sewer [Todd Dry Dock Eng’g & Repair Corp. v City of New York, 54 F2d 490, 491 (2d Cir)].) The contractor protested that the order was outside the contract, but did as it was ordered and then sued.

The court first recognized that a contractor ordered by a municipal representative to furnish services or materials as covered by the contract, which the contractor believes are outside the contract, may under protest do as directed and later recover damages for breach of contract, even though it turns out that the contractor was actually right and the official had no right to call on it for such labor and materials (Borough Constr. Co. v City of New York, supra, at 153). Thus, as an abstract principle, the value of extra work — work that is ultimately found to be outside a contract — may unquestionably be recoverable by a contractor as breach of contract damages. But aware of the potential for abuse — municipal representatives and contractors collusively could saddle a municipality with uncontemplated liabilities — the court recognized a limitation on that principle: where the municipal representative’s demand is flagrantly beyond the scope of the contract, the contractor may not even under protest do the work and recover for it. Applying this test, the court concluded that the more expensive cement was work "not dreamed of by the parties” (id., at 153) and technically outside the contract, but because the engineer’s demand could be sustained under a literal interpretation of the contract, the contractor was justified in complying with the directive and could therefore recover for the work. By contrast, there could be no recovery for the other work because those demands were "so preposterous that there could be no reasonable doubt that [they] exceeded the obligations of the contract and that a refusal to comply with it would, not work a breach of contract.” (Id., at 158.)

The Borough test remains sound (see, e.g., Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389; Weil Plumbing Corp. v State of New York, 294 NY 6; Seglin Constr. Co. v State of New York, 22 NYS2d 94 [Ct Cl], affd 262 App Div 782, rearg denied 262 App Div 797; see also, City & County of San Francisco v Transbay Constr. Co., 134 F2d 468, 473 [9th Cir], cert denied 320 US 749; Todd Dry Dock Eng’g & Repair Corp. v City of New York, 54 F2d 490, 491, supra; 13 McQuillin, Municipal Corporations § 37.160, at 403 [3d rev ed]; 3 Yokley, Municipal Corporations § 444, at 42; 65 Am Jur 2d, Public Works and Contracts, § 188). Yet nothing in Borough detracts from application of article 27 in this case.

The first material distinction between this case and Borough may be characterized as procedural. The litigation procedure and the contract procedure here both differ from Borough. Borough was a breach of contract action brought after completion of the work, and the focus of the case was whether a contractor could recover at all for the additional work in a breach of contract action. The contract in Borough provided that the City engineer was to be the final, binding authority on all questions relating to the work, but it did not explicitly preserve the contractor’s right to claim compensation for extra work. Thus, the essential question in Borough was whether the contractor could sue the City for what it claimed was extra work; here the essential question is not whether but when.

On this very subject, moreover, the parties before us expressly agreed upon a step-by-step procedure which preserves the City’s bargained-for right to have a multicontractor project proceed to conclusion without actual or threatened costly litigation interruptions — the present action is already three years old — and at the same time preserves the contractor’s right to seek judicial resolution of claims for additional compensation for work it believes falls outside the contract. As Justice Sandler observed, "[t]he principle is surely fundamental that a rule developed to govern a situation not addressed in the parties’ contract does not ordinarily preclude parties from agreeing in a contract to resolve the problem in a different manner from the rule that would otherwise apply. Indeed, it is a matter of common experience that contractual provisions are frequently designed to alter a rule that would apply in the absence of such a provision.” (135 AD2d, at 272, supra.)

A second significant distinction lies in the substance of the Borough test. Both in articulating the test and in applying it, Borough drew sharp lines between what might be compensable though technically outside the contract, and what was so preposterous as to suggest collusion, bad faith or similar circumstances demanding protection of the public fisc. In the latter circumstances, according to Borough, a contractor would not be justified in doing the work, and would not be compensated for it; the contractor could only refuse to comply, though it might be subjected to "annoyance or even unjust litigation” for its refusal to obey the directive (Borough Constr. Co. v City of New York, supra, at 158; see also, Todd Dry Dock Eng’g & Repair Corp. v City of New York, 54 F2d 490, supra). Expensive cement — while technically beyond the terms of the contract — still fell within the range of the City’s apparent good faith, reason, doubt and debate, but the other work was so frivolous, so palpably and manifestly outside the contract, that there could not even be a reasonable doubt that the contractor would prevail in a breach of contract action if it refused to comply with the City’s directive. Collins v State of New York (259 NY 200) and Weil Plumbing Corp. v State of New York (294 NY 6, supra) are further applications of that same dichotomy; as illustrated by those cases, the public interest is protected by Borough’s requirement that the City’s directive be supported by an honest dispute over the terms of a contract, a fairly debatable question, color of right on both sides of the issue.

In the present case, the excavation for and installation of concrete pads below the underground fuel tanks was work shown on the contract drawings and undisputedly an essential part of the project; there is no question of saddling the municipality with unnecessary, uncontemplated costs arising from preposterous additions to a contract. The only dispute was whether that work fell to the general construction contractor or the plumbing contractor. From day one the City, relying on the contract drawings and other contract provisions, took the position that the work was Kalisch-Jarcho’s contractual responsibility, which was the judgment of the project architect and ultimately the Commissioner of the Department of Sanitation.

Circumstances can surely be imagined where the concerns articulated in Borough would preclude recovery by a contractor — for example, "where the evidence established that the contractor and the responsible city officials in fact colluded either to enlarge the city’s liabilities, or for some other clearly improper purpose.” (135 AD2d, at 275, supra.) And even apart from the concerns expressed in Borough, it is conceivable that a directive to do disputed work could be "so irrational and arbitrary, and the effect of enforced compliance by the contractor so onerous and damaging to the contractor, that the result of compliance with the literal language of the contractual provisions would be unconscionable.” (135 AD2d, at 275, supra.) Such extraordinary demands were envisaged in Borough as situations where "there could be no reasonable doubt that [the demand] exceeded the obligations of the contract and that a refusal to comply with it would not work a breach of contract”, despite a risk of baseless litigation (200 NY, supra, at 158).

But this is plainly not such a case. The City’s direction to Kalisch-Jarcho to excavate for and install the concrete pads as embraced within the contract was not so preposterous, so manifestly beyond the limits of the agreement, as to suggest a threat to any public interest.

Finally, for much the same reason, we reject the contractor’s argument that, in ordering it to perform the work in question, City officials violated Administrative Code of the City of New York § 6-110 and article 25 of the contract, which prohibit the Commissioner from ordering extra work that would increase the price to be paid by more than 10% of the contract price. Those limitations apply only in the case of extra work orders and not, as here, where the Commissioner reasonably determines that the work was required by the contract.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted in favor of the City declaring that Kalisch-Jarcho is obliged to comply with article 27 of the contract.

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

Order reversed, etc.

      . Article 27, "disputed work, determination or order”, reads:
      "If the Contractor is of the opinion (1) that any work ordered to be done as contract work by the Commissioner [of the New York City Department of Sanitation], the Engineer or the Resident Engineer, is extra work and not contract work, or (2) that any determination or order of the Commissioner, Engineer or Resident Engineer violates the terms and provisions of this contract, he must promptly, and before proceeding with such work or complying with such determination or order, or simultaneously therewith notify the Commissioner in writing of the reasons for his opinion with respect thereto, and request a final determination thereon. Such determination shall be rendered within a reasonable time.
      "If the Commissioner determines that the work in question is contract work and not extra work, or that the determination or order complained of is proper, he will so notify the Contractor to proceed, and the Contractor must promptly comply. However, in order to reserve his right to claim compensation for such work or damages resulting from such compliance, the Contractor must, within five days after receiving notice of the Commissioner’s determination and direction, notify the Commissioner in writing that the work is being performed, or that the determination and direction is being complied with, under protest.”
      Additionally, article 53 of the contract provides that after the contractor performs the work under protest, it has until one year after filing its final payment voucher with the City’s Comptroller to bring a lawsuit based upon the protested work.

      . Declaratory judgment actions were first introduced in New York after Borough, as section 473 of the Civil Practice Act (1921), which may well have provided an incentive for the contractual procedure set forth in article 27 delaying the resolution of disputed work claims until after contract completion.