author: Chief Judge Cooke. Wachtler, J.

text:
    William O’Connor et al., Respondents, v City of New York, Appellant. Consolidated Edison Co. et al., Respondents, et al., Defendants.
    Argued January 3, 1983;
    decided February 23, 1983

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Alfred Weinstein, Leonard Koerner and Bernard Abel of counsel), for appellant. I.
    Liability may not be predicated upon Gould’s negligent inspection, since it violated no duty to plaintiffs as individuals distinguished from the public at large. (Motyka v City of Amsterdam, 15 NY2d 134; Rivera v City of Amsterdam, 5 AD2d 637; Garrett v Town of Greece, 55 NY2d 774; Sanchez v Village of Liberty, 42 NY2d 876, 44 NY2d 817; Infosino v City of New York, 37 Misc 2d 563, 25 AD2d 841,18 NY2d 583; Messineo v City of Amsterdam, 17 NY2d 523; Gordon v Holt, 65 AD2d 344; Young v Abdella, 84 AD2d 890; Stranger v New York State Elec. & Gas. Corp., 25 AD2d 169; Reid v City of Niagara Falls, 29 Misc 2d 855; Meadows v Village of Mineola, 190 Misc 815.) II. There was no evidence of justifiable reliance upon the issuance of the blue card as an assurance that it was safe to turn on the gas prior to connection of the piping and meters and final inspection by Con Edison. (International Prods. Co. v Erie R.R. Co., 244 NY 331; Smullen v City of New York, 28 NY2d 66; Glanzer v Shepard, 233 NY 236; Courteen Seed Co. v Hong Kong & Shanghai Banking Corp., 245 NY 377; White v Guarente, 43 NY2d 356; Ultramares Corp. v Touche, 255 NY 170; Lang v City of New York, 28 NY2d 601.) III. Under the charge it was a condition of liability that the jury find that “the city gave affirmative assurance that the piping system was safe and that it was all right for gas to flow through the system”. Since there was no evidence to support such a finding, the complaint should be dismissed. (Buckin v Long Is. R. R. Co., 286 NY 146; Leonard v Home Owners’ Loan Corp., 297 NY 103; Martin v City of Cohoes, 37 NY2d 162; Fein v Board of Educ., 305 NY 611; Smulczeski v City Center of Music & Drama, 3 NY2d 498; Durham v Metropolitan Elec. Protective Assn., 27 AD2d 818; Torrogrossa v Townmotor Co., 56 AD2d 558, 44 NY2d 709; Singer v Walker, 39 AD2d 90, 32 NY2d 786.) IV. The charge with respect to “Murphy’s Law”, “if anything can go wrong, it will go wrong”, broadened the basis of negligence liability far beyond that of reasonable foreseeability. (Johnson v Blaney, 198 NY 312.)

      Herman Schmertz for William O’Connor and another, respondents.
    I. Actionable municipal negligence was definitively established in the form of Inspector Gould’s culpable prevention of crucial safeguards against explosion. (Smullen v City of New York, 28 NY2d 66; Florence v Goldberg, 44 NY2d 189; Moch Co. v Rensselaer Water Co., 247 NY 160; Sanchez v Village of Liberty, 42 NY2d 876;
      Derdiarian v Felix Contr. Corp., 51 NY2d 308; Quinlan v Cecchini, 41 NY2d 686; Willis v Young Men’s Christian Assn. of Amsterdam, 28 NY2d 375; Monell v City of New York, 84 AD2d 717; Snyder v Moore, 72 AD2d 580; Tucci v Bossert, 53 AD2d 291.) II. The court’s instructions on foreseeability were eminently fair to defendant city. Every conceivable jury issue as to its responsibility was comprehensively charged in a manner fully protective of its rights. (Kalish v Krieger, 42 AD2d 955, 35 NY2d 864.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal presents the question whether a municipality may be held liable for its inspector’s failure to discover a leak in a gas system that ultimately caused an explosion. Inasmuch as there was no special relationship between the injured parties and the municipality, the municipality may not be held liable to plaintiffs for damages resulting from the explosion. The order of the Appellate Division, therefore, should be reversed and the complaint should be dismissed as against the City of New York.

On the afternoon of December 11, 1970, a gas explosion leveled a three-story building in lower Manhattan, killing 12 persons, injuring many others, and virtually obliterating the commercial establishments in the building. Forty-three actions were brought against the City of New York, Consolidated Edison Company of New York, Inc., the plumbers who had installed the new gas system, and various other defendants. The actions were tried jointly to a jury on the issue of liability, and the city was found 65% liable, Consolidated Edison was found 10% liable, and Otto Schlink and Albert Bold, the plumbers, were each found 12.5% liable. The Appellate Division reversed and ordered a new trial with respect to the liability of the city and a new apportionment of damages (Gannon Personnel Agency v City of New York, 57 AD2d 538).

At the second trial, a jury again found the city liable. It apportioned damages 80% against China Dynasty Enterprises, Inc., a defunct corporation that had opened a restaurant in the building, 11% against Schlink, 1% against Bold, and 4% each against Consolidated Edison and the city. Supreme Court denied the city’s motion to set aside the verdict against it (103 Misc 2d 60), and the Appellate Division affirmed.

The basis for imposing liability on the city was the action, or lack thereof, of the city inspector who visited the building nine days before the explosion. Expanded gas service had been necessitated by the conversion of the top two stories of the building to a Chinese restaurant. A new pipe was laid from the gas main under the street to the building. Schlink and Bold were responsible for connecting the piping inside the building to the incoming gas pipe in the basement. In doing so, they failed to install a shut-off valve at the point where the gas line entered the building, although such a valve was required by city regulations. In addition, a gas pipe leading to another room in the basement was left uncapped so that, if the system was put into operation, gas would flow out the pipe into the basement. There also may have been another gap in the piping where the restaurant’s new meter was to be installed. Consolidated Edison had given its permission for the installation of a temporary pipe to close the gap where the meter was to be placed.

Before renewed gas service to the building could be authorized, the new installation had to be inspected by both the city and Consolidated Edison. The city inspector twice visited the site while work was in progress. On December 2, 1970, the city’s inspector viewed the installation for the third and final time. Despite the presence of the open-ended pipe and the lack of the shut-off valve, the inspector told the plumber, Schlink, that he had done a “good job”, and that a “blue card” would be issued. The blue card, issued by the city building department, was required before Consolidated Edison could install the new meter for the restaurant and resume gas service. The card stated, “This is to certify that the Gas Pipes of premises known as 7-11 Ann Street in the Borough of Manhattan conform to the rules and regulations of this Department”. As noted, however, the gas piping system did not conform to the relevant rules and regulations.

After obtaining the blue card, the proprietor of the China Dynasty Restaurant took the card to Consolidated Edison’s offices on Thursday, December 10,1970. The utility scheduled a final check by its employees of the new gas piping system for the following Monday, with resumption of gas service if the system was approved. Unfortunately, Consolidated Edison never had the opportunity to conduct its final inspection. Anxious to have the restaurant open for business over the weekend, the proprietor apparently made independent arrangements for the gas to be turned on. On Friday afternoon, two men, one of whom resembled the proprietor, were observed opening a sidewalk curb valve outside the building. This incoming gas escaped through the uncapped pipe inside the building. The strong odor of gas was soon detected, and the devastating explosion followed a short time later.

It is beyond dispute that the city inspector should not have authorized issuance of the blue card. City regulations required that every part of a new or altered gas piping system be inspected (Administrative Code of City of New York, § C26-1606.1). Such an examination surely should have disclosed the open-ended pipe. In addition, such an inspection should have revealed that the required interior shut-off valve was absent (Administrative Code, RS-16, PI 15.2, subd [a]). Although the Consolidated Edison employees presumably would have observed these defects in their final inspection and demanded that they be remedied before gas service was resumed, the fact remains that the city inspector, during his December 2 inspection, either failed to observe the defects or failed to insist upon their correction.

Nonetheless, the City of New York may not be held liable to the plaintiffs here for the omissions of its inspector. It is well established that “[ajbsent a special relationship creating a municipal duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failure to enforce a statute or regulation” (Sanchez v Village of Liberty, 42 NY2d 876, 877-878, dsmd on other grounds 44 NY2d 817). In Sanchez, the survivors of a fire in a multiple dwelling in the Village of Liberty brought wrongful death actions against a village and its building inspector, among others, in connection with the deaths of their spouses and children. The plaintiffs alleged that the village and its inspector knew that the building violated various regulations in that it was a firetrap without fire escapes or other adequate means of emergency egress. This court dismissed the complaint against the village and inspector because of the lack of any special relationship. The court stated that “the statutes and ordinances involved in the case at bar create no such special relationship” (id., at p 878).

Sanchez is consistent with well-established principles limiting municipal liability for breach of a general statutory duty. In Motyka v City of Amsterdam (15 NY2d 134), a city fire captain’s knowledge that a defective heater had previously caused a fire and the city’s failure to see that the heater was repaired or removed were asserted as a basis of liability after the faulty heater caused a second fire. This court held that the complaint was properly dismissed, stating that municipal “tort liability has been held to exist where there has been some relationship on the part of the defendant to the plaintiff creating a duty to use care for the benefit of particular persons or classes of persons * * * but we have never gone so far as to hold that a general liability exists to the public for civil damage in event of failure to supply adequate police or fire protection” (id., at p 139 [citation omitted]; see, also, Garrett v Town of Greece, 55 NY2d 774; Messineo v City of Amsterdam, 20 AD2d 626, affd 17 NY2d 523; Steitz v City of Beacon, 295 NY 51; Moch Co. v Rensselaer Water Co., 247 NY 160).

Just as the housing regulations in Sanchez were designed to protect the safety of residents of multiple dwellings, so were the gas piping regulations in this case designed, at least in part, to protect persons from death, injury or property damage. The regulations were intended to benefit the injured persons, but in the broad sense of protecting all members of the general public similarly situated. This, alone, is insufficient to form a basis for municipal liability. Here, as in Sanchez, there has been shown no special relationship as would establish a municipal duty to these particular plaintiffs.

The sharp contrast with Smullen v City of New York (28 NY2d 66) is noteworthy. There, a city sewer construction inspector assured a worker that an 11-foot-deep trench with unshored earthen walls was safe to work in. The walls, which by regulation should have been shored up, collapsed a few moments later, and killed the worker. It was held that the city could be held liable for its inspector’s negligence. In doing so, the court relied on the presence of the inspector at the site and his power to prevent the worker from entering the unsafe trench, stating that the inspector’s unsolicited opinion as to the trench’s safety “could easily be interpreted as more than acquiescence in decedent’s descent, and as an exercise of control by the only person in authority then present” (id., at p 73).

In this case, however, no such direct personal supervision or exercise of direction or control has been shown. In authorizing issuance of the blue card, the inspector did not in any sense direct, or even acquiesce, in the restaurant proprietor’s unauthorized opening of the sidewalk valve nine days later. And even this remote connection is absent between the city and the other persons who sustained injuries as a result of the explosion.

In Steitz v City of Beacon (supra), the city charter provisions involved there required maintenance of a fire department. This court stated “these provisions were not in terms designed to protect the personal interest of any individual and clearly were designed to secure the benefits of well ordered municipal government enjoyed by all as members of the community” (295 NY 51, 55, supra). The same conclusion is appropriate here. The gas piping regulations are designed to benefit the plaintiffs as members of the community, but the regulations do not create a duty to the plaintiffs as individuals. To hold otherwise would be to subject municipalities to open-ended liability of enormous proportions and with no clear outer limits. The imposition of such liability, in addition to posing a crushing financial burden, might well discourage municipalities from undertaking activities to promote the general welfare. It could also impede municipal officials from allocating resources where they would most benefit the public, by making the prime concern the avoidance of tort liability rather than the promotion of the public welfare. The courts should not take it upon themselves to, in effect, reorder municipal priorities (see Riss v City of New York, 22 NY2d 579, 582).

The arguments for extending municipal liability that are articulated by the dissent have been raised before and rejected. It is true that some individuals will suffer substantial hardship as a result of their inability to recover for their injuries from a municipality that negligently fails to enforce its own regulations. The deleterious impact that such a judicial extension of liability would have on local governments, the vital functions that they serve, and ultimately on taxpayers, however, demands continued adherence to the existing rule. All the more is this so when there has been reliance for decades on this doctrine for purposes of municipal fiscal planning. If liability to individuals is to be imposed on municipalities for failure to enforce statutes or regulations intended for the general welfare, that imposition should come from the Legislature.

In conclusion, it has long been the rule in this State that, in the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation. No such special relationship exists here.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the complaint dismissed as against the appellant.

Wachtler, J.

(dissenting). A plaintiff’s right to recover for negligently inflicted injury should not depend upon whether the plaintiff belongs to a legally accepted “special class”. This judicially created caste system represents an indefensible exception to the basic principle of negligence law that a plaintiff is entitled to compensation when he has been injured by the defendant’s failure to observe standards of reasonable care under the circumstances. In addition, efforts to decide tort liability by placing, or attempting to fit litigants into rigid categories breeds exceptions and often produces incongruous, unfair and arbitrary results.

Similar concerns recently prompted this court to overrule its long-standing distinction between business invitees, licensees and trespassers in cases involving suits against negligent landowners (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433). It was noted that these “rigid status classifications” were a heritage of feudalism and that, they had generated confusing and artificial distinctions and refinements (Basso v Miller, supra, at pp 240, 242). “ ‘Through this semantic morass the common law has moved, unevenly and with hesitation, towards “imposing on owners and occupiers a single duty of reasonable care in all the circumstances” ’ ” (Kermarec v Compagnie Gen., 358 US 625, 631, quoted in Basso v Miller, supra, at p 240). These same considerations call for an abandonment of the special class limitations when recovery is sought for injuries suffered by members of the public as a result of a municipality’s negligent approval of a dangerous condition it had a duty to inspect and correct.

The need for reform in this area has been noted in the past by other members of this court. Former Chief Judge Desmond persistently dissented against the rule which generally relieves the State and its subdivisions of liability for negligent performance of governmental duties (Steitz v City of Beacon, 295 NY 51, 57-60; Motyka v City of Amsterdam, 15 NY2d 134,140-141). Recognizing the rule, with its peculiar exceptions, as one of the “vestiges of governmental immunity” (at p 141) he stated in his dissent in the Motyka case (at p 140): “Any court-created tort immunity rule should be forthrightly abandoned when its injustice and its unreality are so evident as to produce exceptions, interpretations and inconsistencies galore”.

Judge Keating dissenting in Riss v City of New York (22 NY2d 579, 583, 585), observed “It is not a distortion to summarize the essence of the city’s case here in the following language: ‘Because we owe a duty to everybody, we owe it to nobody.’ Were it not for the fact that this position has been hallowed by much ancient and revered precedent, we could surely dismiss it as preposterous.” He too urged that the government, in carrying out its responsibilities to the public, should be held responsible for the negligent acts of its employees as would a private employer, and felt that our cases “indicate how, step by step, New York courts are moving” in that direction. (Supra, at p 590; see, also, Evers v Westerberg, 32 NY2d 684, where former Chief Judge Fuld dissented from the application of the current rule.) In recent years minor erosions of this judicially resurrected governmental immunity have produced additional exceptions and special categories underscoring the continuing need for broader reform.

This problem can be resolved by the courts without the aid of the Legislature. As in Basso v Miller (40 NY2d 233, supra), the special status requirements created by the courts can be abolished by the courts when experience has shown they are unworkable and unfair.

Applying the ordinary rules of tort liability to governmental entities should produce more just results in cases such as the one now before us. When a city has undertaken the duty of approving gas installations in buildings it should not be allowed to escape liability if its inspector overlooks a blatant defect and in fact declares the dangerous installation safe by affirmatively authorizing its use, simply because the persons killed or injured do not fit neatly into any special class and are unable to shoyv some special relationship with the city. Abandonment of these status requirements in favor of the traditional tort concepts should not produce intolerable results in other cases. All that would be required is that the government, in its dealings with the public, exercise reasonable care under the circumstances (cf. Basso v Miller, supra, at pp 240-241). That of course would take into account the practicality of performing the duty to the extent asserted (cf. De Witt Props. v City of New York, 44 NY2d 417), and the availability of personnel to accomplish the task (cf. Florence v Goldberg, 44 NY2d 189). In addition as Judge Keating observed in his dissent in Riss (supra, at pp 592-593): “No doubt in the future we shall have to draw limitations just as we have done in the area of private litigation, and no doubt some of these limitations will be unique to municipal liability because the problems will not have any counterpart in private tort law. But if the lines are to be drawn, let them be delineated on candid considerations of policy and fairness and not on the fictions or relics of the doctrine of ‘sovereign immunity’ It is, to say the least, anomalous to hold that the duty owed the general public does not include an obligation to a member of the general public and thus to thrust upon that one member, or his family, the often catastrophic loss which rightfully should, and much more readily can, be borne by the general public.

In short, abandonment of the special status requirements will not, as the majority suggests, “subject the municipalities to open-ended liability of enormous proportions and with no clear outer limits”. On the contrary it will simply mean that the municipalities like all individuals and corporations will be liable for damages if they neglect to act with reasonable care; and that is precisely what the statutory waiver of governmental immunity was intended to accomplish (Court of Claims Act, § 12-a [L 1929, ch 467, § 1], now § 8; Bernadine v City of New York, 294 NY 361, 365).

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

Judges Jasen, Jones and Simons concur with Chief Judge Cooke; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judges Fuchsberg and Meyer concur.

Judgment appealed from and the order of the Appellate Division brought up for review reversed, etc.

       (See, e.g., Florence v Goldberg, 44 NY2d 189, child whose parent relied on a crossing guard being at a certain location qualifies as a member of a “special class” and can recover for injuries occurring when the municipal authorities neglected to provide a guard; see, also, Garrett v Holiday Inn, 58 NY2d 253.)


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Maurice Matthews, by Richard Greenberg, Appellant, v New York State Division of Parole et al., Respondents.
    Argued January 10, 1983;
    decided February 15, 1983

      POINTS OF COUNSEL

      Allen E. Burns, William E. Hellerstein and Roger Brazill for appellant.
    I. By forcing appellant to defend against parole violations charges before being tried, and perhaps acquitted, on identical criminal charges, the hearing officer unjustifiedly deprived appellant of a possible claim of collateral estoppel and severely devalued his right to remain silent, thus violating due process and committing an abuse of discretion as a matter of law. (People ex rel. Dowdy v Smith, 48 NY2d 477; People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76; Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445; Ryan v State of Montana, 580 F2d 988; People ex rel. Knowles v Smith, 54 NY2d 259; People ex rel. Menechino v Warden, Green Haven State Prison, 27 NY2d 376; People ex rel. Wentsley v

      Dillon, 85 AD2d 927.) II. The Parole Board’s requirement that appellant serve three years before reconsideration for parole was illegal. (People ex rel. Donohoe v Montanye, 35 NY2d 221.)

      Robert Abrams, Attorney-General (Betsy Broder and Peter H. Schiff of counsel), for respondents.
    I. Since appellant did not have good cause to justify an adjournment of the parole revocation hearing, the hearing officer’s denial of the adjournment request was entirely, proper. (People ex rel. Dowdy v Smith, 48 NY2d 477; Standlee v Rhay, 557 F2d 1303; United States ex rel. Carrasquillo v Thomas, 527 F Supp 1105, 677 F2d 225; Lewis v United States Parole Comm., 448 F Supp 1327; People ex rel. Froats v Hammock, 83 AD2d 745; People ex rel. Singletary v Dalsheim, 84 AD2d 553, 55 NY2d 603; Ashe v Swenson, 397 US 436; Matter of McGrath v Gold, 36 NY2d 406; People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76; United States v Sullivan, 274 US 259.) II. Section 259-i (subd 3, par [f], cl [x]) of the Executive Law permits the Parole Board to fix any date for consideration for rerelease on parole. In fixing that date three years from the revocation, the Parole Board acted in accordance with the unequivocal meaning and intent of the statute. (Matter of Industrial Comrs. of State of N. Y. v Five Corners Tavern, 47 NY2d 639; People ex rel. Donohoe v Montanye, 35 NY2d 221; People ex rel. Coleman v Smith, 75 AD2d 706, 50 NY2d 804; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69.)
   OPINION OF THE COURT

Jasen, J.

On this appeal, we are asked to decide whether the denial of petitioner’s request that his final parole revocation hearing be adjourned until such time as the criminal charges pending against him were disposed of was an abuse of discretion or deprived petitioner of his right to due process.

On July 18,1980, petitioner was released on parole after serving approximately 6 years of a 6½- to 13-year sentence for robbery in the second degree. Petitioner was arrested in Kingston, New York, on September 8, 1980 and charged with second degree assault, resisting arrest and unlawful possession of marihuana. The same day, a parole violation warrant was issued against him, charging him with violating his parole on the basis of the criminal charges brought against him and because he did not have written permission to leave New Jersey, the State which was supervising his parole.

Probable cause that petitioner had violated the terms of his parole was found to exist at a preliminary hearing held on September 23,1980. The final parole revocation hearing began on December 16, 1980. In the interim, the Ulster County Grand Jury had referred the criminal charges to Kingston City Court for prosecution as misdemeanors.

At the final parole revocation hearing, petitioner’s counsel requested an adjournment until such time as the criminal charges against his client were tried. In support of this request, he cited People ex rel. Dowdy v Smith (48 NY2d 477), arguing that if the defendant was acquitted of the charges in City Court, the Parole Board would be collaterally estopped from pursuing a parole revocation proceeding on the basis of those charges. The hearing officer, indicating that he read People ex rel. Dowdy v Smith (supra) to be limited to those cases where the defense intended to raise an affirmative defense at trial, inquired as to whether counsel so intended in this case. In response, counsel indicated that he did not know whether an affirmative defense would be raised because discovery motions were still pending in City Court, but that he believed that even if defendant offered no defense but merely put the People to their burden of proof and was acquitted, under People ex rel. Dowdy v Smith (supra) the Parole Board would be collaterally estopped from proceeding with the parole revocation hearing. Thus, petitioner’s counsel argued that an adjournment should be granted on the general proposition that it would be improper to proceed until the results of the criminal trial were known. The hearing officer denied the request, finding that defendant failed to show that he intended to raise an affirmative defense at trial, which the officer concluded was a prerequisite to People ex rel. Dowdy v Smith (supra) being applicable and because defendant failed to raise any other point that might require an adjournment.

During the hearing, testimony was taken from the complaining witness regarding the events leading up to the assault. She identified the petitioner as the person who had beaten her. Petitioner’s defense consisted of attacking the witness’ credibility and of petitioner testifying that he had not attacked her, but rather had run into the parking lot where the assault had occurred to hide from several other youths who had attempted to attack him. At no point during the hearing did petitioner raise any affirmative defense, challenge the admissibility of any evidence or raise any other constitutional claim.

The hearing officer dismissed the charges of possession of marihuana and being away from New Jersey without written permission, but found that petitioner had violated his parole by assaulting a woman and by resisting arrest. The charges against the defendant were subsequently dismissed on the District Attorney’s motion because “the extent of time he would be required to serve in State prison [made] prosecution of the misdemeanor charge [szc] no longer in the community interest.”

Petitioner then commenced this proceeding by filing a writ of habeas corpus. After a hearing, Supreme Court dismissed the petition, finding that the failure to grant the adjournment did not result in a deprivation of petitioner’s right to due process.

The Appellate Division affirmed, holding that petitioner was not denied due process since he could have raised any defense or could have sought to suppress either physical evidence or the witness’ identification at the hearing but did not do so. Furthermore, the Appellate Division found that there was no infringement of his Fifth Amendment protection against self incrimination because the decision as to whether or not one would testify is made separately in and for each proceeding. That court also specifically noted that People ex rel. Dowdy v Smith (48 NY2d 477, supra) was limited to situations in which the defendant would raise an affirmative defense at trial. Since this petitioner had not indicated to the hearing officer that he intended to raise an affirmative defense, the officer properly exercised his discretion in not granting the adjournment on that ground.

We agree with the Appellate Division that on the facts of this case petitioner failed to raise adequate claims to require an adjournment of his parole revocation hearing until such time as the criminal charges against him were decided. This is not to say that we would so conclude in all cases where an adjournment was sought. Indeed, this court has long recognized the necessity of conducting parole revocation hearings in such a manner that the parolee’s due process rights are afforded the utmost protection. (Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445; People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76.) The basic decision, however, as to whether or not to grant an adjournment remains a matter for the. hearing officer’s discretion. (Cf. 9 NYCRR 8005.17 [c] [1].)

Thus, this court must decide whether or not this officer abused his discretion as a matter of law or exercised it in a manner which infringed on petitioner’s due process rights. We conclude that he did not.

Petitioner raised only one argument to the hearing officer: that the adjournment was required as a matter of law because if the result of the criminal trial was a dismissal of the charges or an acquittal, the Parole Board would be estopped from pursuing the parole revocation hearing. In making this argument to the hearing officer, petitioner’s counsel indicated that he felt this would be the result required under this court’s holding in People ex rel. Dowdy v Smith (supra) whether defendant presented a defense or merely stood mute.

This argument misconstrues our holding in People ex rel. Dowdy v Smith (supra) and impermissibly expands its scope. In People ex rel. Dowdy v Smith (supra), we held that the Parole Board would be collaterally estopped from revoking a defendant’s parole on the basis of criminal charges to which he had raised a successful affirmative defense. After noting that both sides appeared to agree that it was the affirmative defense of entrapment which resulted in defendant’s acquittal in that case, the court held that the doctrine of collateral estoppel would be applicable in the subsequently held parole revocation hearing despite the fact that one proceeding was punitive in nature and the other remedial if the necessary elements to apply the doctrine of collateral estoppel existed. Stating that there was no difficulty in concluding that the same parties were involved in the two proceedings, we examined whether the issue involved before the Parole Board would be the same as that previously litigated at the trial on the criminal charges. In that case, the charge was that the petitioner had violated his parole by possessing narcotics. Whether or not the defendant had possessed narcotics was also a material element of the criminal charges brought against him. In defense, he had asserted the affirmative defense of entrapment (Penal Law, § 40.05): that his possession of the narcotics was induced by law enforcement officials. It is important to again note that both sides agreed it was this affirmative defense which resulted in the acquittal. Thus, we concluded that collateral estoppel was appropriate because by succeeding in obtaining an acquittal, the defendant had established by a fair preponderance of the evidence that he was in possession of narcotics only due to the officer’s conduct and that the People’s failure to disprove that affirmative defense meant that they were bound by the criminal court’s acceptance of the affirmative defense. Finally, we noted that we were not deciding whether collateral estoppel would be applicable in all cases because in People ex rel. Dowdy v Smith (supra), “the comparison of the burdens of proof [was] in the relator’s favor.” (People ex rel. Dowdy v Smith, supra, at p 484.)

Our holding in that case depends on an analysis of the burdens of proof applicable in the different types of proceedings. The burden at the parole revocation hearing is on the People to show a violation of the conditions of parole by a preponderance of the evidence (9 NYCRR 8005.19 [e]), while at trial the People must meet the higher burden of proving the crimes charged beyond a reasonable doubt. If, however, the defendant raises an affirmative defense, the burden is on the defendant either at trial or at the hearing to establish that affirmative defense by a preponderance of the evidence. Thus, if he is successful at trial, he necessarily has met the burden of proof he would have been put to at the hearing. The inverse, of course, is not true because an acquittal on any basis which does not involve the defendant bearing part of the burden of proof merely stands for the proposition that the People have failed to meet the higher standard of proof required at the criminal proceeding. The People’s burden of proof being less at the parole revocation hearing, they would be entitled to an opportunity to meet that burden except in cases like People ex rel. Dowdy v Smith (supra) where the defendant had already precluded the issue by having it resolved at trial on the basis of a clear preponderance of the evidence.

People ex rel. Dowdy v Smith (48 NY2d 477, supra), therefore, would be limited in application for the purposes of deciding whether or not an adjournment was required in those situations where success by the defendant at trial would require him to establish by a preponderance of the evidence an issue which was the basis of the charge or charges before the Parole Board. Clearly, this applies to an affirmative defense as the defendant is required by statute to establish an affirmative defense by a preponderance of the evidence. (Penal Law, § 25.00, subd 2.)

This same principle has led us to conclude that other situations in which the defendant is affirmatively raising an issue may require an adjournment of the parole revocation hearings until the issue is resolved. Thus, in People ex rel. Piccarillo v New York State Bd. of Parole (48 NY2d 76, supra), we noted that when the parolee seeks to suppress evidence at a parole revocation hearing which is already the basis of a motion before Special Term, an adjournment until such time as that issue was decided would be proper. Of course, if the People felt they could proceed without using the evidence that was the subject of the suppression motion, the revocation proceeding could continue. In so holding, we extended the exclusionary rule to parole revocation hearings because we reasoned that the deterrent effect of the rule would be compromised if illegally obtained evidence could be used at an administrative hearing. (People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76, 81, supra.)

The underlying rationale is, of course, to insure that the parolee’s constitutional rights are protected. Primary among these rights is the right to due process in the course of the parole revocation hearing. Because the revocation of parole has the effect of depriving a person of his liberty, albeit a restricted form of liberty, he has a substantial enough interest to justify some form of due process although not the full panoply of rights due a defendant in a criminal proceeding. (Morrissey v Brewer, 408 US 471,480-484.) Affording a parolee some form of due process prior to revoking his parole protects not only his interest in the liberty he enjoys by virtue of his parole, but also society’s interest in “restoring him to [a] normal and useful life within the law.” (Morrissey v Brewer, supra, at p 484.) The Supreme Court, in Morrissey v Brewer, recognized certain procedural devices such as a revocation hearing to assure the parolee the required due process.

So, too, our Legislature has devised a statutory scheme (Executive Law, § 259-i) which assures that the parolee’s due process rights are protected. This requires that he be given notice of the charges and the opportunity to defend against those charges at a prompt hearing before an impartial hearing officer. Similarly, we have held that a parolee is entitled to be represented by counsel at his hearing. (Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445, 447, supra.)

Turning then to the case before us, we must decide whether the due process rights to which the petitioner was clearly entitled were violated by the denial of an adjournment of the parole revocation hearing. While it is not inconceivable that due process would require a hearing officer to grant an adjournment, we cannot conclude on the record before us that an adjournment was required in this case. It is the petitioner’s obligation to raise issues meriting the adjournment to the hearing officer. In this case, petitioner did no more than argue that People ex rel. Dowdy v Smith (supra) would require dismissal of the proceeding if his criminal trial resulted in an acquittal or dismissal. If petitioner felt any other of his constitutionally protected rights were being jeopardized by the parole revocation hearing being held prior to the criminal trial, it was his obligation to raise these claims to the hearing officer. Not only did petitioner fail to do so, but at no point in the hearing did he raise any claim which would indicate that any of his constitutionally protected rights were being jeopardized by the manner in which the hearing was being conducted.

In deciding whether or not to grant an adjournment, a hearing officer must weigh the necessity of a speedy revocation hearing against the need to defer to the criminal courts until such time as issues involving the parolee’s constitutional rights are resolved. Such a weighing must, of course, be done on a case-by-case basis, but it remains the parolee’s obligation to alert the hearing officer to any potential conflicts existing because of the interrelationship of the two proceedings. In this case, petitioner failed to do so.

Petitioner also challenges the legality of the Parole Board’s order that he be held for three years before being given another parole hearing. He argues that no order of reincarceration can be for a period greater than two years. (People ex rel. Donohoe v Montanye, 35 NY2d 221, 226.) No such limitation is imposed on the Parole Board by section 259-i of the Executive Law. (See subd 3, par [f], cl [x].)

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

Chief Judge Cooke and Judges Jones, Wachtler, Fuchsberg, Meyer and Simons concur.

Order affirmed, without costs.


author: Chief Judge Cooke. Jasen, J.

text:
    Eliza M. Goncalves, Also Known as Eliza G. M. Salles, Appellant, v Regent International Hotels, Limited, Doing Business as Mayfair Regent, et al., Respondents. (Action No. 1.) Sarah Cecconi, Appellant, v Regent International Hotels, Limited, Doing Business as Mayfair Regent, et al., Respondents. (Action No. 2.)
    Argued January 5, 1983;
    decided February 17, 1983

      POINTS OF COUNSEL

      A. Richard Golub for Eliza M. Goncalves, appellant.
    I. Special Term erred in its interpretation of section 200 of the General Business Law. (Ramaley v Leland, 43 NY 539; Epp v Bowman-Biltmore Hotels Corp., 171 Misc 338; Psota v Long Is. R. R. Co., 246 NY 388; Kemp v Rockland Leasing, 51 Misc 2d 1073; Shaine v S. Jacobson, Inc., 121 Misc 590; Wilkins v Earle, 44 NY 172; Honig v Riley, 244 NY 105; Zaldin v Concord Hotel, 48 NY2d 107; Spiller v Barclay Hotel, 68 Misc 2d 400; Bean v Ford, 65 Misc 481.) II. Defendants have not complied with a statute which is in derogation of the common law and, therefore, must be strictly construed. (Zaldin v Concord Hotel, 48 NY2d 107; City of New York v Interborough R. T. Co., 257 NY 20; People ex rel. Trustees of Masonic Hall & Asylum Fund v Miller, 164 Misc 726, 253 App Div 672, 279 NY 137; People v Nowacki, 180 Misc 100; Steward v Katcher, 283 App Div 50.) III. Special Term failed to recognize defendants’ liability for breach of a separate agreement with plaintiff to improve its security, and protect plaintiff’s valuables. (Chatillon v Co-operative Apt. Co., 90 Misc 108.) IV. The principle of equitable estoppel bars the assertion of statutory defense. (Mitsuya v Croydon Mgt. Co., 448 F Supp 811; Gray v Met Contr. Corp., 4 AD2d 495.) V. Plaintiff was a “boarder” or “tenant”. (Crapo v Rockwell, 48 Misc 1; Chawla v Horch, 70 Misc 2d 290.) VI. Special Term’s interpretation of the statute is against public policy. (Matter of Smidt v McKee, 262 NY 373; Seagram & Sons v Hostetter, 45 Misc 2d 956, 23 AD2d 933, 16 NY2d 47.) VII. Defendant innkeeper may not limit his liability in tort by a document that is (a) not between the parties, (b) inadmissible into evidence according to the CPLR, (c) is invalid to exculpate defendant from tort liability and against public policy, and (d) was not counterexecuted. (Lorillard v Clyde, 122 NY 498; Karczag Pub. Co. v Shubert Theatrical Co.,
      181 App Div 529; Reynolds v Van Beuren, 155 NY 120; Gross v Sweet, 49 NY2d 102; Udell v Hamburg-American Line, 141 Misc 754; Holmes v North German Lloyd S. S. Co., 184 NY 280; Adams v New Jersey Steamboat Co., 151 NY 163; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407; Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57; Boll v Sharpe & Dohme, 281 App Div 568.) VIII. The robbery was foreseeable and as such the hotel is liable.

      Robinson B. Lacy, Michael W. Weir and James H. Carter for Sarah Cecconi, appellant.
    I. Defendants’ first affirmative defense, based on section 200 of the General Business Law, should be dismissed (Zaldin v Concord Hotel, 48 NY2d 107; Wilkins v Earle, 44 NY 172; Millhiser v Beau Site Co., 251 NY 290; Purvis v Coleman, 21 NY 111; Ramaley v Leland, 43 NY 539; Epp v Bowman-Biltmore Hotels Corp., 171 Misc 338; Psota v Long Is. R. R. Co., 246 NY 388; Kemp v Rockland Leasing, 51 Misc 2d 1073; Hyman v South Coast Hotel Co., 146 App Div 341; Shaine v S. Jacobson, Inc., 121 Misc 590.) II. Defendants’ second and third affirmative defenses, based on an alleged agreement between the parties, should be dismissed. (Udell v Hamburg-American Line, 141 Misc 754; Gross v Sweet, 49 NY2d 102; Straus & Co. v Canadian Pacific Ry. Co., 254 NY 407; Boll v Sharpe & Dohme, 281 App Div 568, 307 NY 646; 67 Wall St. Corp. v Franklin Nat. Bank, 37 NY2d 245.)

      Franklin D. Tell and Solomon M. Cheser for respondents.
    I. The language of section 200 is plain and unambiguous. It should, therefore, be applied as written with no need for interpretation. (Zaldin v Concord Hotel, 48 NY2d 107; Hyatt v Taylor, 42 NY 258; Rosenplaenter v Roessle, 54 NY 262.) II. The complaints were properly dismissed even were section 200 subject to construction and interpretation. (Weinberg v D-M Rest. Corp., 53 NY2d 499; Zaldin v Concord Hotel, 48 NY2d 107; Town of Islip v Powell, 78 Misc 2d 1007; Ely v Charellen Corp., 120 F2d 984.) III. The conclusion suggested by Zaldin v Concord Hotel confirms parallel conclusions set forth in Millhiser v Beau Site Co. (251 NY 290). (Hyatt v Taylor, 42 NY 258; Rosenplaenter v Roselle, 54 NY 262.) IV. The Cecconi brief to the contrary notwithstanding, the preponderance of authority holds that statutes such as section 200 limit a hotel’s liability even if its negligence contributed to the loss. (Shaine v S. Jacobson, Inc., 121 Misc 590; Hyman v South Coast Hotel Co., 146 App Div 341; Chatillon v Co-operative Apt. Co., 90 Misc 108, 171 App Div 910; Kaplan & Sons v Pensacola Hotel Co., 153 F Supp 31; Link-Simon, Inc. v Muehlebach Hotel, 374 F Supp 789.) V. Defendants provided a “safe” within the meaning of section 200. (Carlton v Beacon Hotel Corp., 4 NY2d 789.) VI. The “Safe Deposit Box Receipt” which underlies defendants’ second and third affirmative defenses is a valid agreement binding on plaintiffs. VII. Plaintiffs were guests of the hotel and not boarders or tenants. (Lefkowitz v Lebensfeld, 51 NY2d 442; Unitron Graphics v Mergenthaler Linotype Co., 75 AD2d 783; National Grange Mut. Ins. Co. v Cervantes, 25 AD2d 471; Moses v City of New York, 15 AD2d 534.) VIII. The second cause of action set forth in the Goncalves’ third amended complaint and the argument at point III of her brief are insufficient in law. (Chapparelli v Baker, Kellogg & Co., 252 NY 192; Frankenberger v Schneller, 258 NY 270.) IX. Section 200 expresses the public policy of this State with regard to the obligations between innkeepers and their guests.

      Jack P. Jefferies, Stephen J. Crimmins and John J. Murphy for the New York State Hotel & Motel Association, Inc., and another, amici curiæ.

    I. Section 200, by its plain terms, provides a $500 limitation of liability, and plaintiffs cannot rewrite the statute to include a proviso that the hotel be free from any negligence. (Weinberg v D-M Rest. Corp., 53 NY2d 499; Honig v Riley, 244 NY 105.) II. Legislative intent demonstrates that section 200’s $500 limitation of liability is applicable regardless of the existence of any negligence by the hotel. (Millhiser v Beau Site Co., 251 NY 290; Carlton v Beacon Hotel Corp., 3 AD2d 28, 4 NY2d 789; Federal Ins. Co. v Waldorf-Astoria Hotel, 60 Misc 2d 996; Link-Simon, Inc. v Muehlebach Hotel, 374 F Supp 789.) III. The preponderance of authority holds that section 200’s statutory limitation of liability applies to cases in which plaintiff alleges negligence by the hotel. (Carlton v Beacon Hotel Corp., 3 AD2d 28, 4 NY2d 789; Millhiser v Beau Site Co., 251 NY 290; Federal Ins. Co. v

      Waldorf-Astoria Hotel, 60 Misc 2d 996; Adler v Savoy Plaza, 279 App Div 110; Zaldin v Concord Hotel, 48 NY2d 107; Weinberg v D-M Rest. Corp., 53 NY2d 499; Honig v Riley, 244 NY 105; Spiller v Barclay Hotel, 68 Misc 2d 400; De Paemelaere v Davis, 77 Misc 2d 1, 79 Misc 2d 800; Kalpakian v Oklahoma Sheraton Corp., 398 F2d 243.) IV. Upholding section 200’s limitation of liability in cases in which plaintiff alleges negligence by a hotel accords with sound public policy. (Link-Simon, Inc. v Muehlebach Hotel, 374 F Supp 789; Honig v Riley, 244 NY 105; Weinberg v D-M Rest. Corp., 53 NY2d 499.)
   OPINION OF THE COURT

Chief Judge Cooke.

A hotel will not be availed of limited liability provided by section 200 of the General Business Law for the loss or destruction of a guest’s property delivered to it for safekeeping unless the hotel establishes that it provided a “safe” within the meaning of that section. The hotel may be charged with its failure to provide an adequate facility.

Plaintiffs in these two consolidated cases were guests in late November, 1979, at the Mayfair Regent, a Manhattan luxury hotel owned and operated by defendants. Each plaintiff was traveling with an extensive jewelry collection allegedly worth $1,000,000. As required by law, notices were posted in the hotel that a safe was available in the office for the secure storage of money, jewels, and other valuable items. Plaintiffs each delivered their jewelry over to the management for deposit. In doing so, they signed a “Safe Deposit Box Receipt” which set forth certain terms and conditions.

The security device provided by defendants consisted primarily of rows of safe-deposit boxes that required two keys — one held by the guest — to open. The safe-deposit boxes were housed in a room built of plasterboard with access controlled only by two hollow-core wood doors, one of which had an ordinary residential tumbler lock and the second of which had no lock at all. Plaintiffs claim that this room was unlocked, unattended, and open to the general public. Also, it is alleged that the card file, showing which guest was using each box and when property had been deposited and removed, was exposed to public scrutiny.

On November 25, 1979, thieves entered the hotel and broke into a limited number of safe-deposit boxes, including those used by plaintiffs. The boxes were emptied of their valuables.

Plaintiffs independently commenced these actions to recover for the theft of their jewelry. Plaintiff Goncalves stated four theories for relief in her third amended complaint: (1) gross negligence in providing security; (2) breach of contract by defendants’ failure to fulfill an earlier promise to install a secure area for their safe-deposit boxes; (3) breach of duty as a bailee; and (4) breach of section 200 of the General Business Law by defendants’ failure to provide a safe as required by that statute. Plaintiff Cecconi relied on two theories: (1) breach of duty as a bailee; and (2) negligence in providing security. Each plaintiff prayed for damages in the amount of $1,000,000.

Defendants denied plaintiffs’ allegations and raised three affirmative defenses in their answers. First, they relied on section 200 of the General Business Law as limiting plaintiffs’ recovery to $500. Defendants also claimed breaches of the safe-deposit agreements occasioned by plaintiffs’ deposit of goods worth more than $500. Last, defendants relied on the agreement to limit their liability to $500.

The two actions were consolidated and defendants moved to dismiss the complaints or, in the alternative, have judgment entered against them in the amount of $500. Plaintiffs cross-moved to strike defendants’ affirmative defenses and for summary judgment. Special Term directed entry of judgment of $500 against defendants in favor of each plaintiff. The cross motions to strike and for summary judgment were denied. The Appellate Division unanimously affirmed. This court granted leave to appeal (57 NY2d 601). The order below is now modified.

The centerpiece of this appeal is section 200 of the General Business Law, which places a limitation on the absolute liability for the loss or destruction of a guest’s property to which a hotelkeeper was subject at common law. That statute provides:

“§200. Safes; limited liability

“Whenever the proprietor or manager of any hotel, motel, inn or steamboat shall provide a safe in the office of such hotel, motel or steamboat, or other convenient place for the safe keeping of any money, jewels, ornaments, bank notes, bonds, negotiable securities or precious stones, belonging to the guests of or travelers in such hotel, motel, inn or steamboat, and shall notify the guests or travelers thereof by posting a notice stating the fact that such safe is provided, in which such property may be deposited, in a public and conspicuous place and manner in the office and public rooms, and in the public parlors of such hotel, motel, or inn, or saloon of such steamboat; and if such guest or traveler shall neglect to deliver such property, to the person in charge of such office for deposit in such safe, the proprietor or manager of such hotel, motel, or steamboat shall not be liable for any loss of such property, sustained by such guest or traveler by theft or otherwise; but no hotel, motel or steamboat proprietor, manager or lessee shall be obliged to receive property on deposit for safe keeping, exceeding five hundred dollars in value; and if such guest or traveler shall deliver such property, to the person in charge of such office for deposit in such safe, said proprietor, manager or lessee shall not be liable for any loss thereof, sustained by such guest or traveler by theft or otherwise, in any sum exceeding the sum of five hundred dollars unless by special agreement in writing with such proprietor, manager or lessee.”

Several issues requiring the explication of section 200 are raised. Plaintiffs argue that the statute limits absolute liability only, but does not exonerate a hotelkeeper whose negligence is the proximate cause of the loss of the goods delivered for safekeeping. Alternatively, plaintiffs propose thát a hotelkeeper who does not provide a “safe” within the meaning of the statute may not claim the benefits of section 200. Defendants argue that section 200 limits their liability no matter what the cause of loss and that they provided a “safe” as required. Defendants further posit that the statute does not require a safe, but that “[an]other convenient place” will satisfy the conditions for invoking the section.

At common law, an innkeeper was an insurer of goods delivered into his or her custody by a guest, and so was absolutely liable for the loss or destruction of such goods “unless caused by the negligence or fraud of the guest, or by the act of God or the public enemy.” (See Hulett v Swift, 33 NY 571, 572.) The practical root of this rule lay in the days when travel was perilous, highway robbers abounded, and the only safe sanctuary at night usually was an inn (see Hulett v Swift, supra, at pp 572-573; Browne, Bailments [1896], pp 81-83; Edwards, Bailments [2d ed, 1878], § 462, pp 335-336; Schouler, Bailments [3d ed, 1897], § 274, pp 276-278; 43A CJS, Inns, Hotels, and Eating Places, § 36, p 880; 9 ALR2d 818). The obligation encompassed not only goods actually delivered into the innkeeper’s possession, but also property in the guest’s room (see Ramaley v Leland, 43 NY 539; cf. Bendetson v French, 46 NY 266). “Undoubtedly an innkeeper, by the common law, is held responsible, in this capacity of exercising a public vocation, for whatever personal property of the guest the latter may have brought infra hospitium. Not only the guest’s animals and private equipage may thus claim protection, his wearing apparel and personal jewelry, his baggage and travel-ling necessaries, but, indeed, money and valuables to an unlimited amount.” (Schouler, Bailments [3d ed, 1897], § 283, p 288.)

The common-law rule placed a heavy burden on the hotelkeeper, who could be held liable for a guest’s loss although not having any culpability for the property’s theft or destruction (see Edwards, Bailments [2d ed, 1878], § 463, pp 336-337; see, also, Browne, Bailments [1896], pp 83-84; 2B Warren’s Negligence [3d ed], Hotelkeepers, § 5.01). The New York Legislature early acted to restrict the innkeeper’s exposure by providing a statutory exception to the common-law rule. In 1855, the predecessor statute to section 200 of the General Business Law was enacted (L 1855, ch 421, § 1). Another law limiting the innkeeper’s liability for loss by fire came into being 11 years later (L 1866, ch 658; see, also, General Business Law, § 202). And the Legislature also limited the innkeeper’s financial responsibility for guests’ property such as clothing and other items that could not be expected to be placed in a safe (L 1883, ch 227, § 2; see, also, General Business Law, § 201).

Being in derogation of the common law, section 200 is to be strictly construed (see Ramaley v Leland, 43 NY 539, 541, supra). Moreover, to obtain its protection, the hotel-keeper must strictly adhere to its provisions (see Millhiser v Beau Site Co., 251 NY 290, 295-296 [limitation not available when innkeeper’s posted notices do not include information about limitation on liability]; see, also, Zaldin v Concord Hotel, 48 NY2d 107, 113-114).

Given this statutory framework, negligence by the hotelkeeper may arise in two ways. First, the hotelkeeper may be negligent in such a way that he or she fails to satisfy the conditions of the statute. Second, the hotel-keeper may fulfill the statute’s conditions, but by some other negligent act cause the loss of property. The former may be charged against the hotelkeeper and the benefits of section 200 denied, but the latter does not remove the protection of the limited liability accorded to the hotel-keeper by the statute.

Assuming that the proprietor meets the requirements of section 200, the statutory scheme limits his or her liability for general negligence. The terms of section 200 make no exception for loss caused by the negligence of the hotel-keeper. In contrast, sections 201 and 202 of the General Business Law each limit liability unless the loss occurs through the fault or negligence of the hotelkeeper. The Legislature has maintained these distinctions for at least 100 years (compare L 1855, ch 421, § 1, with L 1866, ch 658, and with L 1883, ch 227). They should not be disturbed now.

A sound basis for the statutory distinctions can be divined. Section 200 is concerned with property — “money, jewels, ornaments, bank notes, bonds, negotiable securities or precious stones” — which items tend to have a value disproportionate to their size and are easily stored in facilities to protect them against theft or destruction. The statute’s message to hotelkeepers is clear: If you provide a facility that will protect such property against theft or destruction, then your absolute liability will be limited (unless you expressly agree to assume greater financial responsibility). This is economically sensible as well, as it encourages a hotel to initially invest in the construction of a secure receptacle, but permits long-term savings through lower insurance premiums and lower payments if losses do occur.

The premise underlying this discussion is that an adequate facility is available to the guest. Section 200 requires that the proprietor “provide a safe” as one of the conditions for receiving the protection of the statute. As recently noted in Zaldin v Concord Hotel (48 NY2d 107,113, supra), the hotel is free to determine the extent to which it “provides” a safe, but there must be strict conformity with the terms of section 200 in order to obtain the benefit of the statute. In Zaldin, it was held that a hotel could not deny access to its safe during certain hours and then claim the circumscribed liability of section 200 at all times. Analogously, a hotel that effectively fails to provide any safe at all, whether intentionally or because the receptacle is negligently constructed, also cannot claim the protection.

What, then, is a “safe” within the meaning of section 200 of the General Business Law? The Legislature has provided no definition. And while other sources provide guidance (see, e.g., Black’s Law Dictionary [5th ed], p 1199 [“(a) metal receptacle for the preservation of valuables”]; Webster’s Third New International Dictionary [unabridged], p 1998 [“a metal box or chest sometimes built into a wall or vault to protect money or other valuables against fire or burglary”]), their terms lack the perspective necessary to determining whether any particular receptacle is adequate. Nor is the question one that may be answered by prescribing uniform technical specifications and measurements. A large, luxury hotel has far different security needs than a small, low-priced motel catering to a different clientele. It would be inappropriate for this court, with its lack of expertise, to specify a single safe that must be used by all hotels and motels, not only because of their varying needs but also because of the flexibility that is left to the proprietor (see Zaldin v Concord Hotel, 48 NY2d 107, 113-114, supra; see, also, Akins v Glens Falls City School Dist., 53 NY2d 325, 331).

In determining an appropriate definition of a “safe”, there must be taken into account the risks that commonly threaten the type of property covered by section 200. Fire and theft, of course, come immediately to mind. Other dangers may also exist. To come within the contemplation of section 200 of the General Business Law, therefore, a “safe” should be a receptacle that, under the circumstances, provides adequate protection against fire, theft, and other reasonably foreseeable risks. In deciding this question, all aspects of a hotel’s security system may be considered.

Section 200 is an affirmative defense (see Zaldin v Concord Hotel, supra, at p 115; Faucett v Nichols, 64 NY 377, 380; Ramaley v Leland, 43 NY 539, supra), and so the burden of proof lies on the defendant (see Faucett v Nichols, supra). Whether a “safe” was provided is a question of fact (cf. Friedman v Schindler’s Prairie House, 224 App Div 232, 236-237, affd no opn 250 NY 574 [whether establishment was “hotel” within scope of General Business Law a question of fact for jury]; Peters v Knott Corp., 191 Misc 898 [adequacy of posting of notices required by General Business Law a question of fact for jury]). This, of course, does not mean that the issue must always be submitted to the jury. As with any factual issue, a Judge will make a determination on the evidence as a matter of law if there is no real controversy as to the facts (see Basso v Miller, 40 NY2d 233, 241-242; see, also, Licari v Elliott, 57 NY2d 230, 237-238; Akins v Glens Falls City School Dist., 53 NY2d 325, 332, supra).

The dissent confuses the operations of construing statutes and of applying statutes. It is agreed that declaring the meaning of a statute is solely within the province of the court, as this constitutes part of its function to enunciate the law applicable in a case. The application of the statute, however, is a different matter. When there exists conflicting evidence, determination of the controversy is left to the fact finder (see, generally, 75 Am Jur 2d, Trials, §§ 319-321; cf. Winchell v Town of Camillus, 109 App Div 341, affd no opn 190 NY 536 [error to submit interpretation of statute to jury, and undisputed defect one not within scope of statute]). The court today does no more than construe section 200 of the General Business Law by providing a standard where the Legislature has not, leaving application of that standard to the fact finder. Indeed, under the approach urged by the dissent, it would appear that all statutory rights would be removed from the fact finder’s scrutiny.

In the present case, it was improper to award summary-judgment. Plaintiffs submitted an affidavit by an expert having 29 years’ experience in the design, installation, and sale of safes and vaults. This witness expressed his opinion that defendants’ facilities were inadequate, stating that safe-deposit boxes can be invaded in less than 30 seconds and that they should be housed in a vault, not a room of plasterboard and wooden doors. Defendants relied on the existence and operation of the safe-deposit boxes. Under the circumstances, there exists a material issue of fact as to whether defendants’ safe-deposit boxes constituted a “safe” within the meaning of section 200.

Defendants, relying on the language in the first clause requiring “the proprietor * * * [to] provide a safe in the office * * * or other convenient place” (General Business Law, § 200), argue that a safe per se is not required by the statute. Defendants propose that this authorizes the hotel to provide a safe or another convenient place for storing valuables. This is not persuasive. Such an interpretation would allow a box or a bag kept behind the counter or a common coat closet to be interchangeable with a state-of-the-art steel vault. Clearly, this would defeat the policy underlying the statute, as discussed above. In addition, it is contrary to the long-standing comprehension that “other convenient place” refers only to the location of the safe, and not to the nature of the receptacle itself (see Edwards, Bailments [2d ed, 1878], § 467, p 341). To put it another way, the words “other convenient place”, relate to “the office”, not to the “safe”; both the “office” and the “convenient place” specify the area in which the “safe” is to be located. Finally, it is noted that the statute itself is entitled “Safes; limited liability”; it does not refer to “safes or other convenient places”. This may be taken as some indication that the Legislature intended that a safe, and nothing else, would suffice as a security device (see McKinney’s Cons Law of NY, Book 1, Statutes, § 123, subd a, p 246).

As the matter must be returned for further proceedings, the court shall address the contention that defendants should not be allowed to take advantage of the agreements that were signed by the plaintiffs when they obtained the use of the safe-deposit boxes. Defendants assert that plaintiffs breached these contracts or, alternatively, that the agreements establish a maximum value of $500 for the property left in the boxes.

The enforceability of the agreements can be decided without first determining whether defendants met the requirements of section 200. Assuming first that defendants did provide a “safe” within the contemplation of the statute and met the other prerequisites for obtaining the benefits of that law, there is no need to present the agreements as they are merely cumulative to the protection afforded by the statute. More important, however, is the contracts’ unenforceability under traditional precepts of contract law. The agreement recites: “In consideration of the privilege herewith granted me by mayfair house whereby I am allowed the sole use of an individual safe deposit box”. The contract is manifestly void for failure of consideration. To obtain the $500 limitation, the proprietor is required by statute to provide a safe to the guest. This statutory obligation cannot be transformed into a contractual performance, nor may the guest’s statutory right be transformed into a contractual privilege. A promise to perform an existing legal obligation is not valid consideration to provide a basis for a contract (see Ripley v International Rys. of Cent. Amer., 8 NY2d 430, 441).

Assuming that defendants did not provide the security required by section 200, then the agreements are unenforceable as against public policy. Allowing such agreements to be enforced would encourage hotels to provide lesser protection than is required by the statute. In addition, the present agreements result in a guest’s waiver of rights without warning. Certainly, when the guest is justified in believing that the facilities are constructed to provide adequate protection against fire or theft or other reasonably foreseeable risk, the hotel should not be allowed to obtain a waiver of rights without revealing that it is actually proffering a lesser security (cf. Gross v Sweet, 49 NY2d 102, 108-110).

In summary, defendants may not invoke the protection of section 200 of the General Business Law without proving that it provided a “safe” within the meaning of that law. There exists a material question of fact as to whether defendants supplied a receptacle that, under the circumstances, provided adequate protection against fire, theft, and other reasonably foreseeable risks. The safe-deposit box receipts, signed by each plaintiff, are unenforceable agreements and so may not be relied on by defendants in their defense.

The parties’ other contentions have been considered and are found to be without merit.

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiffs, by denying defendants’ motion for summary judgment and by granting plaintiffs’ cross motions to dismiss defendants’ affirmative defenses to the extent of dismissing the second and third affirmative defenses, and, as so modified, affirmed.

Jasen, J.

(dissenting). The majority today holds that a jury and not a court must decide what constitutes a “safé” within the meaning of section 200 of the General Business Law. Since I believe that it is a well-established principle of law, based upon sound policy considerations, that it is for the court, rather than a jury, to construe the meaning of words contained in a statute, I am compelled to dissent from the majority holding.

What is involved here is simply a question of pure statutory construction. The issue presented is whether or not a bank of individually locked metal safe-deposit boxes enclosed in a separate sheetrock room constitutes a “safe”, as that term is used in section 200 of the General Business Law.

The New York Legislature enacted chapter 421 of the Laws of 1855, the predecessor to current section 200 of the General Business Law, for the purpose of protecting hotels from “undisclosed excessive liability”. (Millhiser v Beau Site Co., 251 NY 290.) In order to avail itself of the statutory limitation of liability, a hotel is required, inter alia, to make a safe available to guests who wish to safeguard their valuables. The Legislature, however, did not define the term “safe”, nor did it provide a list of the different types of facilities which would be encompassed by that term. Instead, as lawmakers often do when it is impossible to spell out in advance every contingency in which the statute could apply (see People v Illardo, 48 NY2d 408, 416), the Legislature left it to the courts to give content to the word “safe”. This long-standing practice is embodied in well-established rules of statutory construction and precedents of this and other courts.

It is a fundamental principle of our system of administering justice that the jury decides questions of fact while the Judge decides questions of law. It is equally basic that the construction of a statute is a question of law to be resolved by the court. (McKinney’s Cons Laws of NY, Book 1, Statutes, § 77; 56 NY Jur, Statutes, § 106). “[Q]uestions in regard to the interpretation, construction or effect of written documents are for the court alone, and for the judge to submit such questions to the jury is error. This rule applies to all written laws, constitutional provisions, statutes, etc.” (Bush v Delaware, Lackawanna & Western R. R. Co., 166 NY 210, 226.) It is too plain for argument that “[tjhough the terms used in a statute are technical or unusual, or are ambiguous, the judge should not leave their meaning to the jury.” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 77 [emphasis supplied].) The cases adhering to this fundamental principle are legion.

Thus, it would seem to me that it is for the court to give each word or phrase of a statute its appropriate meaning. In doing so, the court must look primarily to the intent of the Legislature. (McKinney’s Cons Laws of NY, Book 1, Statutes, § 230.) As we recently stated, “the provisions [of a statute] must be interpreted as a whole, giving the words a meaning which serves rather than defeats the over-all legislative goals.” (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 820.) “It is fundamental that a statute must be read with the legislative goal in mind, so that controversies generated by ambiguities or gaps in the law may be resolved in accordance with the legislative scheme. (See 1 Kent Commentaries 462.)” (Matter of Pell v Coveney, 37 NY2d 494, 496; see, also, Matter of Kelly v Sugarman, 12 NY2d 298.) That the court, rather than a jury, should be the proper body to construe the meaning of words contained in a statute in accordance with the intent of the Legislature cannot be seriously disputed, for if the meaning of a word contained in a statute, such as the term “safe” as used in section 200 of the General Business Law, were to be decided on an ad hoc basis by a jury rather than the courts, the availability to hotels of the statutory limitation of liability would be subject to the vagaries of a body of lay individuals possessing no training or expertise in the task of discerning and applying legislative intent so as to effectuate the purposes and policies underlying the statute. The adoption of such a procedure will bring about widely divergent results which are in no way based on what the lawmakers intended to accomplish when they enacted the statute. Indeed, under the majority’s view, a bank of safe-deposit boxes contained in a sheetrock room in a Buffalo hotel could be determined by a Buffalo jury to be a “safe” within the meaning of the statute, thus limiting the hotel’s liability to $500, while the identical facility installed by an Albany hotel might be found by an Albany jury not to be a “safe” within the meaning of the statute, in which case the unfortunate Albany hotel would not be afforded the protection of the statute and would be subject to unlimited liability for losing a guest’s valuables, the válue of which was never disclosed.

In my opinion, based upon the conceded purpose of the statute, such a result could not have been intended by the Legislature. Consequently, recognizing that legislative intent is the keystone to statutory construction, I believe it imperative that the court, not a jury, construe the term “safe” in such a way as to give a meaning to the term “which serves rather than defeats the over-all legislative goals.” (Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 820, supra.) Until today, we have, almost without exception, zealously adhered to this rule. (See Matter of Mobil Oil Corp. v Finance Administrator of City of N. Y., 58 NY2d 95 [“maintenance” does not include cleaning services within the meaning of subdivision 6 of section L46-1.0 of the Administrative Code of the City of New York]; Weinberg v D-M Rest. Corp., 53 NY2d 499, 506 [“fee” as used in section 201 of the General Business Law does not include a tip]; Zaldin v Concord Hotel, 48 NY2d 107 [hotel did not “provide” a safe within the meaning of section 200 of the General Business Law]; Matter of Smith [Great Amer. Ins. Co.], 29 NY2d 116 [no “physical contact” between two vehicles within the meaning of section 617 of the Insurance Law]; MVAIC v Eisenberg, 18 NY2d 1 [there was “physical contact” between two vehicles within the meaning of section 617 of the Insurance Law]; Matter of Kelly v Sugar-man, 12 NY2d 298, supra [31-year-old man with intelligence of a child was “crippled” within the meaning of subdivision 2 of section 16 of the Workers’ Compensation Law].)

Certainly, in a common-law negligence action, the question of whether a person is crippled or whether there was physical contact between two vehicles or whether a hotel provided a safe could present factual questions calling for resolution by a jury. (See Akins v Glens Falls City School Dist., 53 NY2d 325.) A critical distinction, which the majority fails to perceive, must be drawn, however, where the Legislature has used such terms in a statute, in which case a purely legal question is presented, requiring the court, rather than a jury, to construe their meaning. Adopting a rule, as the majority does today, whereby a jury of lay persons is charged with the responsibility of giving content to statutory language, overrules well-established law without any justification for the change. Moreover, the new rule will destroy the confidence which lawmakers heretofore have had that the terms of their statutes will be construed and applied by the court in a uniform manner in accordance with the purposes sought to be achieved. Indeed, the wholly unacceptable result of the majority’s holding will be that, as a practical matter, in every case where the plaintiff alleges that no “safe” was provided within the meaning of the statute, the question will have to be submitted to a jury.

The highest courts of three other States have addressed the same issue presented here and have unequivocally held that the question as to what constitutes a “safe”, as that term was used in various statutes, is a question of law. In State v Stoner (473 SW2d 363 [Mo]), the Supreme Court of Missouri held that a coin receptacle in a pay phone is a “safe” within the meaning of a statute prohibiting possession of tools commonly used to break into safes. The court recognized that the content given such a term depended upon the intent of the Legislature in enacting the statute. Similarly, in Smith v Mine & Smelter Supply Co. (32 Utah 21, 25-26), the Utah Supreme Court held that whether or not a facility constituted a “vault or safe” within the meaning of a statute regulating the storage of explosives is a question of law. Finally, in a case on point with the instant case, the Ohio Supreme Court held that the trial court properly charged the jury that a bank of metal safe-deposit boxes constituted a “metal safe” as a matter of law. (Chase Rand Corp. b Pick Hotels Corp. of Youngstown, 167 Ohio St 299.)

It is abundantly clear, therefore, based on the aforementioned cases and long-established principles of statutory construction, that the question whether or not the facility provided by defendant for the storage of its guests’ valuables is a “safe”, as that term is used in section 200 of the General Business Law, is a pure question of law to be decided by this court.

Turning to the case before us, I would hold that the subject facility is a “safe” within the meaning of the statute. In arriving at this conclusion, it is necessary to first consider “the context of the statute, the purpose and spirit of it, the surrounding circumstances, and — above all — the intention of the lawmakers.” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 235, citing Mangam v City of Brooklyn, 98 NY 585; People ex rel. Lichtenstein v Langan, 196 NY 260; and People v City of Buffalo, 57 Hun 577.)

As previously stated, the principal purpose underlying the enactment of the statute before us was to protect hotels from undisclosed excessive liability by requiring guests who wished to have hotels safeguard property worth in excess of $500 to disclose the value of such property so that the hotel could take whatever steps necessary, based upon the value of the property, to assure its protection. (Millhiser v Beau Site Co., 251 NY 290, supra.) The majority, however, appears to be of the view that the statute is primarily concerned with insuring the protection of guests’ valuables. This misperception is apparent in the majority’s assertion that (at p 217) “[a] large, luxury hotel has far different security needs than a small, low-priced motel catering to a different clientele. It would be inappropriate for this court, with its lack of expertise, to specify a single safe that must be used by all hotels and motels, not only because of their varying needs but also because of the flexibility that is left to the proprietor”.

The Legislature, in sharp contrast to the majority’s position, made it clear that the differences between various types of hotels catering to different clienteles were no longer relevant with respect to an innkeeper’s liability. This was done by requiring all hotels desiring to avail themselves of the statutory limitation of liability to provide a safe. By limiting a hotel’s liability to $500 per guest, it should be abundantly clear that the Legislature envisioned that hotels would provide a safe of a type that would be adequate to safeguard $500 worth of property. It would be manifestly illogical to state, as one of the plaintiff’s affiants did, that the Legislature intended to require a hotel, as a prerequisite to reliance on section 200, to install the same type of safes and vaults used by banks and other institutions that are responsible for safeguarding valuables worth millions of dollars merely to safeguard $500 worth of property. Indeed, the statute is designed to require guests to reveal the value of property they want the hotel to store so that the hotel can, if it chooses to by agreeing in writing, make arrangements elsewhere to provide the type of protection which may be unavailable at the hotel, but which is necessary to safeguard property worth significantly more than $500. Furthermore, the fact that some patrons frequenting a “large, luxury hotel” have different security needs than those patronizing “a small, low-priced motel” was precisely the reason why the Legislature enacted section 200. The type of safe provided is of secondary importance to the need of the hotel to be made aware of the value of such property. If value is undisclosed, the hotel is justified, under the express language of the statute, in assuming that the property so entrusted is worth $500 or less. Consequently, if a “safe” which is adequate to protect $500 worth of valuables is provided, the limitation of liability provided by section 200 is available. As the Supreme Judicial Court of Maine cogently observed in construing a similar statute: “The hotelkeeper is not a banker; and he is not in the business of operating a safe deposit vault except as an incident to operating a hotel. It is not, therefore, unreasonable to restrict his liability for such incidental services rendered to his guests within such limits as will meet their ordinary needs. Those who carry with them large amounts of money or jewelry must take other measures for their protection. The added cost to the hotelkeeper of providing for such protection even as against the willful act or negligence of an employee, is in the last analysis one of his costs of operation reflected in the rates charged to all. Why should those guests who do not need such protection pay for the cost of those who do?” (Levesque v Columbia Hotel, 141 Me 393, 398.)

While it would go too far to say that the Legislature cared nothing for the security of property belonging to the guests of a hotel, especially since the Legislature required that a safe be provided, it is imperative that the statute be construed in light of the fact that the primary concern of the lawmakers in enacting section 200 was to “protect the hotel from an undisclosed excessive liability”. (Millhiser v Beau Site Co., 251 NY 290, 294, supra; Zaldin v Concord Hotel, 48 NY2d 107, 112, supra.)

In light of the conceded purpose of the statute, I believe that the facility provided by the defendant here clearly falls within the meaning of the term “safe” as it is used in section 200, since it was more than sufficient to safeguard $500 worth of property per guest. This conclusion finds support in both the plain meaning of the term and the decisions in other jurisdictions that have addressed the issue.

To assist a court in properly construing a term contained in a statute, resort may be had to definitions provided by lexicographers. (Quotron Systems v Gallman, 39 NY2d 428; McKinney’s Cons Laws of NY, Book 1, Statutes, § 234.) Black’s Law Dictionary defines a safe as “[a] metal receptacle for the preservation of valuables.” (Black’s Law Dictionary [5th ed], p 1199.) The identical definition is given in Bouvier’s Law Dictionary and in Words and Phrases (38 Words & Phrases, “Safe”, 1982 Cum Ann Pocket Part, citing Buntin v State, 117 Ga App 813). Webster’s Dictionary defines a safe as “a place or receptacle to keep articles (as provisions or valuables) safe.” (Webster’s Seventh New Collegiate Dictionary, p 757.) Finally, the term “safe” is defined once again in Words and Phrases as, inter alia, “a receptacle in which valuables are placed to complete their safety.” (38 Words & Phrases, “Safe”, p 9, citing Columbia Cas. Co. v Rogers Co., 157 Ga 158, 160-161.) The individually locked metal safety-deposit boxes, enclosed in a sheetrock room, which were provided by defendant, fall within all of these commonly accepted definitions of the term “safe”.

In addition to the afore-mentioned definitions and the intent of the Legislature to protect hotels from excessive undisclosed liability, our holding finds further support in the decisions of at least two other States that have addressed the issue. A Federal District Court in Michigan held that a defendant hotel provided a “metal safe or a suitable vault” within the meaning of a Michigan statute similar to New .York’s where it had made available safety-deposit boxes which contained a locking apparatus that could be released only upon the simultaneous application of two keys, one of which was held by the guest while the other was in the possession of the hotel. (Oppenheimer v Morton Hotel Corp., 210 F Supp 609, affd 324 F2d 766.) The court reasoned that since these boxes were similar to the kind employed in banks, they constituted a “safe” within the contemplation of the statute. The defendant in this case provided an identical facility.

In a similar case, Chase Rand Corp. v Pick Hotels Corp. of Youngstown (167 Ohio St 299, 305, supra), which the Oppenheimer court relied on, the Ohio Supreme Court held that “as a matter of law the bank of metal safe deposit boxes constituted ‘a metal safe,’ and that such boxes complied with [the Ohio statute].”

There can be little doubt that the defendant’s safe-deposit box facility was a “safe” as that term is commonly defined, as it has been construed by .other courts and, most especially, as the New York Legislature intended it to be construed. Nor is it insignificant that in the century and a quarter that this statute has been on the books, there is nothing in the reported cases to suggest, until now, that the availability of the statutory protection might turn on the type of “safe” provided by the innkeeper.

Finally, some mention should be made as to the enforceability of the agreements signed by plaintiffs limiting the hotel’s liability to $500.1 agree that the agreements signed by the parties purporting to limit the hotel’s liability to $500 do not operate to achieve any such limitation of liability in the cases before us, but I reach this conclusion for quite different reasons than does the majority. I cannot agree that the agreements were unenforceable for lack of consideration. The promise of the hotels to provide safekeeping facilities would support their guests’ promises to limit the liability of the hotels. (See 1 Corbin, Contracts, § 136, p 579; Restatement, Contracts 2d, § 74.) To suggest that the promise of the hotels could not serve as consideration because it merely restated their statutory obligation is incorrect. Section 200 imposes no obligation on a hotel to provide a safe for storage of valuables; the statute merely conditions the limitation of the hotels’ liability to $500 on the provision of such a safe.

These agreements, however, would not serve to limit the liability of the hotels in the circumstances of these cases. As contracts of exoneration, rather than of indemnity, they would not serve to exculpate the hotels for liability for their own negligence in the absence of an explicit reference to exoneration for such liability. (Gross v Sweet, 49 NY2d 102.)

For the reasons stated, I would hold that defendant’s liability is limited to $500 and affirm the order of the Appellate Division awarding both plaintiffs said sum.

Judges Wachtler, Fuchsberg and Meyer concur with Chief Judge Cooke; Judge Jasen dissents and votes to affirm in a separate opinion in which Judges Jones and Simons concur.

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

      . The full text of the agreement reads as follows: “In consideration of the privilege herewith granted me by mayfair house whereby I am allowed the sole use of an individual safe deposit box for the keeping of my valuables and whereby I am given possession of the sole key of said box during the period of my use thereof, I hereby agree that the liability of mayfair house for loss or damage to the contents, at any time, of such safe deposit box, by theft, burglary, or otherwise, is and shall be limited at all times to a total amount of $500, and, for the purpose of determining any liability of mayfair house for any such loss or damage to the contents of such safe deposit box, I hereby agree that the value of the contents of said box shall never exceed at any one time the sum of $500.1 further agree to use this safe deposit box only for my personal property and that of my immediate family and for such a period only as I may occupy an apartment in mayfair house. As the only key to said box is herewith delivered to me, I hereby release mayfair house from any liability whatever arising from the loss of this key or the presentation thereof by a person other than myself. Should the key be lost, I authorize mayfair house to have the box forcibly or otherwise opened at my expense and I agree to be present or have a duly authorized representative present when requested. It is understood that access to the box is to be allowed to me only upon my signature and upon my giving up the use of the box, I agree to return the key to mayfair house and to execute the release or receipt hereto annexed.”

      . It is worth noting, however, that the term “safe” has long enjoyed a similar definition. Thus, the 1940 edition of Bouvier’s Law Dictionary defines the word as follows: “A place for keeping things in safety. Specifically, a strong and fireproof receptacle (as a movable chest of steel, etc., or a closet or vault of brickwork) for containing money, valuable papers, or the like.” A similar definition is employed in the 1900 edition of Webster’s American Dictionary of the American Language.

      . Nor are the cases cited from other jurisdictions persuasive. In State v Stoner (473 SW2d 363 [Mo]), the court held that a pay telephone’s coin collection box was a “safe” for the purposes of a broad statute prohibiting the possession of burglar tools for breaking into railroad cars, boats, houses, stores, or the “door, shutter or window of a building of any kind” as well as safes. The Missouri court was not concerned with whether the receptacle was adequate to protect jewelry and papers. In Smith v Mine & Smelter Supply Co. (32 Utah 21), the court did not hold “that whether or not a facility constituted a ‘vault or safe’ within the meaning of a statute regulating the storage of explosives is a question of law.” (Dissenting opn, at p 225.) Rather, the Utah Supreme Court declared that a brick room with an unobstructed opening leaving powder caps exposed to other explosives, was not “a vault or safe such as was clearly contemplated by the ordinances.” (32 Utah, at p 26.) As indicated by the court’s reference to uncontroverted testimony (id., at p 25), the court was simply determining the factual question as a matter of law. Finally, that an Ohio court in another situation found a particular facility to be a “safe” within the meaning of another statute (see Chase Rand Corp. v Pick Hotels Corp. of Youngstown, 167 Ohio St 299) does not compel this court to do so now.

      . Plaintiffs contend that the agreements are consumer contracts that are neither legible nor printed in adequately sized typeface, and so are not admissible into evidence by virtue of CPLR 4544. The record includes an affidavit by a printer establishing that the type is of an adequate size and a review of the forms reveals their legibility. The agreements are not barred from being entered into evidence on this ground.

      . (See, also, Matter of Sigety v Hynes, 38 NY2d 260, cert den 425 US 974; Rankin v Shanker, 23 NY2d 111; State v Union Tank Car Co., 281 Ala 246; Bodinson Mfg. Co. v California Employment Comm., 17 Cal 2d 321; United Presbyt. Assn, v Board of County Comrs. of County of Jefferson, 167 Col 485; Pascale v Board of Zoning Appeals of City of New Haven, 150 Conn 113; Lime-Cola Bottling Co. v Atlanta & West Point R.R. Co., 34 Ga App 103; Barnett v Reed, 93 Idaho 319; Howes v Nathan, 15 Ill App 2d 48; Miller Oil Co. v Abrahamson, 252 Iowa 1058; Smith v Wilson, 269 SW2d 255 [Ky]; Emery v Asher, Jr. & Sons, 196 Md 1; Aikens v Department of Conservation, 387 Mich 495; Sobrio v Cafferata, 72 Nev 145; State ex rel. Department of Health v City of Hoboken, 130 NJ Eq 564; Booze v District Ct. of Lincoln County, 365 P2d 589 [Okla]; Crouch v Craik, 369 SW2d 311 [Tex]; State ex rel. Humiston v Meyers, 61 Wn 2d 772.)

      . (See Armstrong Co. v Nu-Enamel Corp., 305 US 315; Watkins v National Elec. Prods. Corp., 165 F2d 980; Smith v Hobart Mfg. Co., 194 F Supp 530, revd on other grounds 302 F2d 570; Salinas v Kahn, 2 Ariz App 181, mod on other grounds reh den 2 Ariz App 348; Seybert v Imperial County, 162 Cal App 2d 209; Crosby Aeromarine v Hyde, 115 Ga App 836; Howes v Nathan, 15 111 App 2d 48; Tillotson v Abbott, 205 Kan 1QQ-, Falcone v Palmer Ford, 242 Md487; Schroeder v O’Neill, 166 SC 515; Henrie v Rocky Mountain Packing Corp., 113 Utah 444; Breiby v Department of Admin., 55 Wis 2d 16.)

      . This is all the more so in a case such as this where both plaintiffs signed an agreement that they would not deposit more than $500 worth of property in their safety-deposit boxes and that they would not hold the defendant liable for more than $500 in the event their property was lost or stolen.

      . The record reveals that -defendant provided individually locked metal safety-deposit boxes for the use of its guests. The guest and the hotel each held a key to the guest’s box. The safety-deposit boxes were housed in a separate room with sheetrock walls. Access to the room could be had only by passing through two-inch thick wooden doors, at least one of which was secured by an iron tumbler-type lock.