author: Hancock, Jr., J.

text:
    Dean Ferres et al., Respondents, v City of New Rochelle, Appellant.
    Argued October 6, 1986;
    decided November 25, 1986

      POINTS OF COUNSEL

      Jules J. Ravo for appellant.
    I. General Obligations Law § 9-103 requires dismissal of the complaint. (Sega v State of New York, 60 NY2d 183; Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82; Riegert Apts. Corp. v Planning Bd., 57 NY2d 206; People v Graham, 55 NY2d 144; Giblin v Nassau County Med. Center, 61 NY2d 67; O’Keefe v State of New York, 104 AD2d 43.) II. Defendant is immune from liability for placing a chain across the entranceway to the municipal park and the position of the chain cannot constitute a proximate cause of the accident, in any event. (Weiss v Fote, 7 NY2d 579; Sheehan v City of New York, 40 NY2d 496.)

      William H. Bave, Jr., for respondents.
    I. Defendant has waived its right to seek dismissal of the complaint pursuant to General Obligations Law § 9-103. (Sega v State of New York, 60 NY2d 183.) II. General Obligations Law § 9-103 does not apply to the instant case. (Sega v State of New York, 60 NY2d 183; Russo v City of New York, 116 AD2d 240; Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82; Basso v Miller, 40 NY2d 233.) III. Defendant is not immune from liability for placing a chain across the entrance to Hudson Park and that chain was a proximate cause of the accident involved here. (Alexander v Eldred, 63 NY2d 460; Caldwell v Village of Is. Park, 304 NY 268; Jacques v Village of Lake Placid, 39 AD2d 163; McDonald v Metropolitan St. Ry. Co., 167 NY 66; Loewinthan v Le Vine, 299 NY 372; Wessel v Krop, 30 AD2d 764; Middleton v Whitridge, 213 NY 499; Cohen v Hallmark Cards, 45 NY2d 493; Fotiu v Ewing, 90 AD2d 602.)

      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for the State of New York, amicus curiae.

    The recreational use statute, having been definitively construed in Sega v State of New York (60 NY2d 183), should not be judicially rewritten to add exceptions to tort immunity which the Legislature did not enact. (Sega v State of New York, 89 AD2d 412, 60 NY2d 183; Russo v City of New York, 116 AD2d 240; Bush v Village of Saugerties, 114 AD2d 176; O’Keefe v State of New York, 104 AD2d 43; Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82.)
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiff rode his bicycle into a chain strung across Hudson Park Road at the entrance of a municipal park in the City of New Rochelle, supervised by its Department of Recreation. He has recovered a jury verdict against the city for his injuries, based on its negligence in the act of placing the chain and in failing to give adequate warnings of the hazardous condition created by its presence. There is no claim that the city was guilty of any willful or malicious conduct or omission. In its appeal the city contends that the trial court erred in refusing to dismiss plaintiff’s complaint under General Obligations Law § 9-103, which exempts an owner or possessor of premises from liability to anyone coming on the premises for the purpose of engaging in one of several enumerated activities (including bicycle riding) except for a “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.”

The area in issue is a suburban, regulated park, with a Recreation Supervisor and approximately 24 employees. It includes a public parking area, guard house, beach, park for sitting and lounging, several pavilions, and a place to eat.

We agree with the decision of the trial court and the Appellate Division in its affirmance and, for reasons stated hereafter, hold that General Obligations Law § 9-103 does not apply to a claim of the type presented: one based on the failure of a municipality to fulfill its duty in the operation and maintenance of a supervised public park and recreational facility such as the one here.

I

Under General Obligations Law § 9-103: “an owner * * * of premises, whether or not posted as provided in * * * the environmental conservation law, owes no duty to keep the premises safe for entry or use by others for hunting, fishing * * * canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes” (General Obligations Law § 9-103 [1] [a]; emphasis added).

The statute further provides that an owner of premises who permits any of the above activities does not thereby: "(1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.”

The statute’s effect in limiting liability is not total. As noted, it does not absolve the owner for a "willful or malicious” act or omission (General Obligations Law § 9-103 [2] [a]). Nor does it apply in a "case where permission to pursue any of the activities enumerated in this section was granted for a consideration”. (General Obligations Law § 9-103 [2] [b].) Because neither of these exemptions is relevant, we are concerned with a clear-cut issue of statutory construction: whether General Obligations Law § 9-103 applies to a claim based on a breach of duty by a municipality in the operation of a supervised park like the one here.

Before addressing the statute’s applicability, we consider plaintiff’s contention that defendant should be precluded from relying on General Obligations Law § 9-103 because it failed to plead it as an affirmative defense or to move for dismissal or summary judgment prior to trial. General Obligations Law § 9-103 is not an affirmative defense that must be pleaded (CPLR 3018 [b]; see, 3 Weinstein-Korn-Miller, NY Civ Prac If 3018.13). If the statute is applicable, its sole effect is to establish the substantive law defining the extent of the duty owed to plaintiff, and the facts, which arguably bring the case within the statute, are what plaintiff, himself, asserts — that he was injured at the entrance of the park while engaged in one of the included activities, bicycling. While it would have been better practice to raise the legal issue earlier by way of motion, defendant’s failure to do so did not, contrary to plaintiff’s contention, result in a waiver. We turn then to a discussion of the statute.

II

General Obligations Law § 9-103, for claims within its reach, effectively immunizes the landowner from suit, except for a willful or malicious act or omission. As we stated in Sega v State of New York (60 NY2d 183, 192), if the "statute applies, plaintiff must prove that the defendant willfully or maliciously failed to guard or to warn against a dangerous condition, use, structure, or activity. The defendant’s negligence, if any, is immaterial”.

In construing General Obligations Law § 9-103, we must, of course, carefully examine the language of the statute and its underlying purpose to determine its intended effect. But we may also look beyond the words of the statute, to the history surrounding its original enactment as part of the former Conservation Law (L 1956, ch 842) and the several subsequent amendments to it (see, New York State Bankers Assn. v Albright, 38 NY2d 430, 434, 436, 437; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 91, 92, 96, 111, 124, 141, 143, 146). We are mindful that in "the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle” (People v Ryan, 274 NY 149, 152; see, Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38; emphasis added).

From its wording and an analysis of the statutory scheme, the sole purpose of General Obligations Law § 9-103 is evident — to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities. General Obligations Law § 9-103 offers two inducements to the property owner to give such permission: (1) the broad grant of immunity from liability conferred in subdivision (1) (a) (absolving the owner of the "duty to keep the premises safe for entry or use by others” and of the duty "to give warning of any hazardous condition”) and (2) the assurance provided in subdivision (1) (b) (that by giving permission to use his property the owner does not, by that act, assure "that the premises are safe” or "constitute the person to whom permission is granted an invitee to whom a duty of care is owed”). It would be contrary to reason to assume that the Legislature could have intended that the statute apply in circumstances where neither the basic purpose of the statute, nor, indeed, any purpose could be served — as in the case of the supervised park here where the municipality has already held its recreational facility open to the public and needs no encouragement to do so from the prospective immunity offered by the statute.

Moreover, subdivision (1) (b) — to have any meaning and effect — could not have been intended to apply here. Subdivision (1) (b) provides an additional incentive to the property owner by assuring him, among other things, that in giving permission for use of his property he does not "constitute the person to whom permission is granted an invitee to whom a duty of care is owed” (General Obligations Law § 9-103 [1] [b]; emphasis added). The Legislature can hardly have intended to grant this additional assurance afforded by subdivision (1) (b) where it would be superfluous and could serve no purpose, i.e., where the owner, like defendant here, has already encouraged public use and assumed the duty of reasonable care in the operation of its park (see, Preston v State of New York, 59 NY2d 997, 998; Caldwell v Village of Is. Park, 304 NY 268, 273; Leone v City of Utica, 66 AD2d 463, 466, affd 49 NY2d 811).

That the statute’s sole purpose was, and continues to be, to encourage landowners to allow their properties to be used by the public for a limited number of outdoor recreational activities is confirmed by an analysis of the history surrounding its enactment and subsequent amendments. When first adopted, the statute was entitled "No duty to keep premises safe for hunters, trappers or fishermen or for acts of such persons” and encompassed only the activities of hunting, trapping, fishing and the training of dogs (Conservation Law § 370, as added by L 1956, ch 842). The Bill Jacket refers to "the anxiety of owners, lessees and occupants of premises suitable for hunting, fishing and trapping that unless they exclude sportsmen, they may be held liable for injuries suffered by such person” (Bill Jacket, L 1956, ch 842, at 18, Mem of Law Rev Commn). After the statute was recodified as General Obligations Law § 9-103 (L 1963, ch 576), subsequent amendments expanded its scope to include new activities such as hiking, horseback riding, snowmobiling and hang gliding. The memorandum accompanying the amendment to include cross-country skiing (L 1978, ch 187) states: “Amending section 9-103 of the general obligations law will open up vast areas of private Adirondack land for ski touring. This proposal protects the private landowner[s] by greatly limiting their liability, and encourages these property owners to open their lands to the general public for recreational use” (1978 NY Legis Ann, at 150). With respect to the amendment concerning cutting and gathering firewood (L 1979, ch 336), the legislative memorandum reads: “Owners of wood lots * * * may be reluctant to permit their neighbors to cut and gather firewood because of the possibility of lawsuits. Were liability limited, there would be greater opportunities to use this form of energy for home heating” (1979 NY Legis Ann, at 207).

From its context in the Conservation Law when first enacted and the nature of the activities then covered, we can reasonably conclude that the statute was originally envisioned as applying to undeveloped or wilderness areas of the type that would ordinarily be frequented by sportsmen engaged in the four listed activities — hunting, trapping, fishing and training of dogs (Conservation Law § 370, as added by L 1956, ch 842). Whether the type of property contemplated by the statute has been broadened by the various amendments adding other activities less suggestive of wilderness areas we need not now decide, for the statute remains unchanged in one significant respect: it does not provide immunity to a municipality, which, irrespective of any inducement contained in General Obligations Law § 9-103, already operates and maintains a supervised facility, such as defendant’s, for use by the public. Nothing in the wording of General Obligations Law § 9-103 or its history supports defendant’s construction which results in a drastic reduction in a municipality’s responsibility in the operation and maintenance of its supervised parks, and serves no discernible public interest, certainly not one consistent with the stated aim of section 9-103: encouraging a landowner to permit persons to come upon his property for the purpose of hunting, fishing and other outdoor recreational activities (see, Russo v City of New York, 116 AD2d 240, 244, 245; Bush v Village of Saugerties, 114 AD2d 176, 178-180; O’Keefe v State of New York, 104 AD2d 43).

We note, moreover, that when General Obligations Law § 9-103 is applied, for example, to a person hunting or fishing in open or wilderness areas pursuant to the owner’s permission granted under the statute, there is a quid pro quo — permission to hunt or fish in return for the statutory immunity from liability. But for the inducement to the owner of the liability protection, the person presumably would not have been permitted on the property. This is clearly not the case when someone is injured in a city park like the one here where the public is already encouraged to engage in recreational activities of all kinds. Then, the city has already undertaken the higher duty that the law imposes on municipalities in the operation and maintenance of supervised park facilities (see, Preston v State of New York, 59 NY2d 997, supra; Scurti v City of New York, 40 NY2d 433, 437; Caldwell v Village of Is. Park, 304 NY 268, 274, supra). If the statute is applied in such case, the result is an immediate reduction of this higher duty to one which requires the municipality to do no more than refrain from a malicious act or omission. The municipality would give up nothing but gain immunity. And this immunity would depend solely on a factor which bears no relationship to the risk of harm or the municipality’s ability to prevent it, i.e., whether the activity for which the person entered the premises happened to be one of those mentioned in the statute. Whether plaintiff was in the park for bicycling or roller skating, the duty of care owed by the city should be the same, for it would be an absurdity to suggest that the Legislature intended that the claim of a person using a supervised city park should be barred in one case but not the other. The broad reading of the statute urged by defendant which produces such an unreasonable result should be avoided (Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38, supra; People v Ryan, 274 NY 149, 152, supra; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 141, 143, 146).

Our consideration of the legislative history of General Obligations Law § 9-103 is not contrary to our decision in Sega. There, we noted that the question whether General Obligatians Law § 9-103 may be read to include State-owned lands did not require an examination of legislative history, because the wording of the statute on the point was unambiguous and the meaning plain (Sega v State of New York, supra, at pp 190-191). That fact does not preclude our examination of legislative history to decide the answer to quite a different question, one not clearly answered by the words of the statute: whether General Obligations Law § 9-103 applies to afford immunity to a municipality in the maintenance of a supervised public park and recreational facility such as the one here (see, New York State Bankers Assn. v Albright, 38 NY2d 430, 434, 436, 437, supra).

We have considered defendant’s other arguments and find them to be without merit. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed, with costs.

      . There are two plaintiffs, Dean Ferres, who was injured, and his wife, Susan Ferres, who has a derivative cause of action. Both are respondents here. In using the word "plaintiff,” hereafter, we refer only to Dean Ferres.

      . The statute in subdivisions (1) (a) and (1) (b) includes an "owner, lessee or occupant of premises”. Because defendant is the owner of the premises, we refer hereafter to the statute as though it applied only to an "owner”.

      . Although the precise issue was not before us in Sega v State of New York (60 NY2d 183), we inferentially held that section 9-103 is not waived by failing to plead it or to raise it by motion (id., at p 190, n 2). In Sega, defendant referred to section 9-103 for the first time in the Appellate Division as a basis for urging affirmance of Court of Claims finding of no liability. We held that defendant was not precluded from relying on section 9-103 by its failure to raise it earlier.

      . In Sega we held that the intended effect of the statute, when originally enacted in 1956 as part of the former Conservation Law (L 1956, ch 842), was to limit the extent of the duty of a landowner to a person using his land for a permitted activity to that owed a trespasser under then existing rules, since abolished (Basso v Miller, 40 NY2d 233), i.e., merely to refrain from "a willful or malicious failure to warn” (Sega v New York, 60 NY2d, at p 191). We specifically rejected the argument, in Sega, that the Legislature intended to fix this statutory duty at the higher pre-Basso standard then owed to a licensee, stating at p 191): "Indeed, the statute is contrary to the common law existing in New York in 1956. At that time, the occupier of premises was not liable to a licensee unless the occupier knew of the dangerous condition, realized that it involved an unreasonable risk, believed that the guest would not discover the condition or comprehend the risk, and then failed to exercise reasonable care in warning of the condition or risk (see Higgins v Mason, 255 NY 104, 109-110). In contrast, section 9-103 and its predecessors impose liability only if there is a willful or malicious failure to warn”. (Emphasis added.) In Sega, the references to these now abolished distinctions were solely for the purpose of depicting the legal context in which the statute was written and passed. We by no means suggested in Sega and do not suggest now that these abolished distinctions have been resurrected either in the common law or in General Obligations Law § 9-103.

      . The statute, it should be noted, still contains a reference to the former Conservation Law (see, General Obligations Law § 9-103 [1] [a], [c]) by providing that it applies to premises "whether or not posted as provided in section 11-2111 of the environmental conservation law”.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    Henry Modell and Co., Inc., Appellant, v Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent.
    Argued October 15, 1986;
    decided November 25, 1986

      POINTS OF COUNSEL

      David Rosenberg and Walter Feldesman for appellant.
    I. As a matter of law, Modell is an assignee, pro tanto. (New Amsterdam Cas. Co. v National Union Fire Ins. Co., 266 NY 254; Stewart v Long Is. R. R. Co., 102 NY 601; Murray Hill Mello Corp. v Bonne Bouchee Rest., 113 Misc 2d 683; Shumer v Hurwitz, 49 Misc 121; Davis v Morris, 36 NY 569; Gillette Bros. v Aristocrat Rest., 239 NY 87; Woodhull v Rosenthal, 61 NY 382; Herzig v Blumenkrohn, 122 App Div 756; Bradley v General Store Equip. Corp., 183 Misc 199, 268 App Div 852.) II. As assignee, pro tanto, Modell effectively exercised the renewal option. (New Amsterdam Cas. Co. v National Union Fire Ins. Co., 266 NY 254; Gilbert v Van Kleeck, 284 App Div 611; Leibowitz v Bickford’s Lunch Sys., 241 NY 489; Kolasky v Michels, 120 NY 635; Bradley v General Store Equip. Corp., 183 Misc 199, 268 App Div 852; Damainville v Mann, 32 NY 196; Astor v Miller, 2 Paige Ch 68; Piggot v Mason, 1 Paige Ch 412; Lenane v Mayer, 18 Misc 454.) III. The issues are preserved for this court’s review. (Gerzoff v Gulotta, 57 AD2d 821; Echo Bay Waterfront Corp. v City of New Rochelle, 275 App Div 672; Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788; Jones v Gianferante, 305 NY 135; Barak v 28 E. 6262 Realty Corp., 70 AD2d 543; De Vita v Pianisani, 127 Misc 611; Armstrong v Shapiro, 207 App Div 304; Simon v Schmitt, 137 App Div 625.)

      Philip L. Graham, Jr., and Robert B. Calihan for respondent.
    I. If this court reaches the merits of plaintiff’s claim, the lower court’s dismissal of Modell’s complaint should be affirmed. (Loudave Estates v Cross Roads Improvement Co., 28 Misc 2d 54, 20 AD2d 864; New Amsterdam Cas. Co. v National Union Fire Ins. Co., 266 NY 254; Spencer Operating Corp. v Spencer Hotel Corp., 17 Misc 2d 887; Ganson Tifft, 71 NY 48; Collins v Hasbrouck, 56 NY 157; Post v Kearney, 2 NY 394; Murdock v Fishel, 67 Misc 122; Shumer v Hurwitz, 49 Misc 121; Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121; Bradley v General Store Equip. Corp., 183 Misc 199.) II. ModelTs claims are barred by principles of res judicata. (Israel v Wood Dolson Co., 1 NY2d 116; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; Becker & Assoc. v State of New York, 79 AD2d 599; O’Brien v City of Syracuse, 54 NY2d 353; Smith v Russell Sage Coll., 54 NY2d 185; 930 Fifth Corp. v King, 42 NY2d 886; Marks Music Corp. v Continental Record Co., 222 F2d 488, 350 US 861; Housing & Dev. Admin. v Community Hous. Improvement Program, 83 Misc 2d 977, 59 AD2d 773; Einhorn v Perma Realty Corp., 207 Misc 1123.) III. Modell is collaterally estopped from asserting the factual predicates to its claims against the church. (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Statter v Statter, 2 NY2d 668; Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143; Matter of International Ribbon Mills [Arjan Ribbons] 36 NY2d 121; Schwartz v Public Administrator, 24 NY2d 65.) IV. RPAPL 747 does not bar the application of res judicata and collateral estoppel to Modell’s claims against the church. (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Johnson v Anderson, 15 NY2d 925; Matter of Kaulman, 66 AD2d 688; Parkhurst v Berdell, 110 NY 386; Sullivan v Ringler & Co., 69 App Div 388; Stigwood Org. v Devon Co., 91 Misc 2d 723; Matter of Village of Highland Falls v Town of Highlands, 110 Misc 2d 130; Mc-Cracken v Flanagan, 141 NY 174; Saul v Mutual Redevelopment Houses, 79 AD2d 566.) V. Considerations of equitable estoppel should bar this eleventh-hour assertion of a new legal theory.
   OPINION OF THE COURT

Titone, J.

This appeal concerns the application of RPAPL 747 (2), which modifies the common-law principles governing the preclusive effects of judgments, to a case in which the losing defendant in a summary holdover proceeding has commenced a new action to recover possession on the basis of a theory not asserted in the first proceeding. Because plaintiff did not commence its second action within 60 days after entry of the Civil Court judgment, as RPAPL 747 (2) requires, it cannot now invoke the remedial provisions of the statute. Accordingly, plaintiff is foreclosed from raising its present claim that, as an assignee pro tanto, it is entitled to a renewal lease for the premises it has been occupying.

Plaintiff was a long-term tenant occupying the commercial ground-floor and basement space in a building located at 198 Broadway in Manhattan. In 1959, the building’s owner entered into a 21-year lease, to expire at 12:00 noon on January 15, 1980, with Arthur Bienenstock. Bienenstock, in turn, entered into a sublease with plaintiff for the ground-floor and basement premises, for a term coinciding with the term provided in his prime lease. Both the prime lease and the sublease between Bienenstock and plaintiff contained an option to renew for an additional 21-year term.

Between December of 1965 and February of 1966, defendant, the Reformed Protestant Dutch Church (Church), purchased the building, and its wholly owned subsidiary acquired Bienenstock’s leasehold interest. The subsidiary thereafter elected not to exercise its option to renew the lease for the entire premises and, as a consequence, notified plaintiff that it was not entitled to renew its sublease for the ground-floor and basement portion of the building.

When plaintiff refused to surrender possession of the premises on January 15, 1980, the date its sublease expired, the Church commenced a holdover proceeding in Civil Court to recover possession. Among the defenses asserted by plaintiff in that proceeding was that the Church and its subsidiary were so closely allied that their interests in the property had merged and the Church was therefore bound to honor plaintiff’s renewal option. The Church’s motion for summary judgment was denied by the Civil Court but granted on appeal to Appellate Term.

Following Appellate Term’s decision, a judgment awarding the Church possession was entered by the clerk of the court on October 30, 1981. The Appellate Term order was subsequently affirmed by the Appellate Division (Minister, Elders & Deacons v 198 Broadway, 88 AD2d 511) and by this court (59 NY2d 170). In affirming, we specifically held that, as a subtenant, plaintiff had no right to renew its sublease for a portion of the premises when the prime tenant, its sublessor, had elected not to renew its lease for the entire building (59 NY2d, at pp 175-176).

In the course of a barrage of litigation to recover its right of possession, plaintiff commenced the present Supreme Court action in July of 1983 for declaratory and injunctive relief. The gist of plaintiff’s claim was that it was an assignee pro tanto of the portion of the prime lease covering the ground floor and basement of the building, because the term of its sublease was coextensive with the term of the prime lease and its sublessor had neglected to reserve any reversionary interest in the sublet premises. Consequently, plaintiff contended, it was entitled to exercise the renewal option in the prime lease to the extent that it pertained to the premises plaintiff occupied.

The Supreme Court dismissed plaintiff’s complaint on two alternative grounds. First, the court held that the claim was barred under traditional res judicata principles. Second, the court determined that the claim was without legal merit because the renewal right of the prime tenant, plaintiff’s sublessor, was indivisible and therefore could not be assigned pro tanto to a subtenant whose sublease covered only a portion of the entire premises. The Appellate Division subsequently affirmed, without opinion (114 AD2d 751), and we granted plaintiff leave to appeal to this court (67 NY2d 609).

On this appeal, plaintiff argues, as it did in the courts below, that it became an assignee pro tanto of the prime lease by virtue of the sublessor’s failure to reserve any reversionary interest in the ground-floor and basement premises (see, New Amsterdam, Cas. Co. v National Union Fire Ins. Co., 266 NY 254). Since an assignee pro tanto is ordinarily entitled to enforce against the landlord those covenants that run with the land (see, Gilbert v Van Kleeck, 284 App Div 611, appeal dismissed 308 NY 882) and a renewal option is generally deemed a covenant that runs with the land (see, Leibowitz v Bickford’s Lunch Sys., 241 NY 489), plaintiff contends, the court should draw the conclusion that plaintiff is entitled to exercise the prime lease’s option to renew, even though its leasehold interest covers only a portion of the entire premises. We have no occasion to consider the merits of plaintiff’s claim, however, because we agree with the trial court that its assertion in the present action is barred under well-established principles of claim preclusion.

It is elementary that, under the common-law doctrine of res judicata, a tenant who has been adjudged not entitled to possession in an action brought by the landlord cannot subsequently bring an action to recover possession on the basis of claims that could have been asserted in the first action. While New York does not have a compulsory counterclaim rule (see, CPLR 3011), a party is not free to remain silent in an action in which he is the defendant and then bring a second action seeking relief inconsistent with the judgment in the first action by asserting what is simply a new legal theory (see, Israel v Wood Dolson Co., 1 NY2d 116, 118; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307; Siegel, NY Prac § 447, at 591-592; § 452, at 598-599; cf. Batavia Kill Watershed Dist. v Charles O. Desch, Inc., 83 AD2d 97, affd 57 NY2d 796; see also, O’Brien v City of Syracuse, 54 NY2d 353; Smith v Russel Sage Coll., 54 NY2d 185). Underlying this rule is the recognition that "it is to the interest of the State that there should be an end to litigation” (Israel v Wood Dolson Co., supra, p 118). Indeed, even a default judgment awarding possession to the landlord has been held to preclude litigation of subsidiary issues necessary to establish the tenant’s subsequent claim for separate equitable relief, despite the fact that the equitable claim could not have been resolved in a counterclaim in the first action because of limitations on the court’s jurisdiction (Reich v Cochran, 151 NY 122).

Plaintiff’s present claim falls squarely within these principles. In the prior Civil Court holdover proceeding, the landlord sought to recover possession, and plaintiff defended, in part, by asserting a right of possession arising from the renewal clause in its sublease. Plaintiff’s present claim, although technically based on the renewal clause in the prime lease, is really nothing more than a resuscitated assertion of a right to possession recast in terms of a new legal theory. As such, the claim, which could have been raised as a defense in the first action (see, RPAPL 743) and which now seeks to destroy or impair the "rights * * * established by the first [action]” (see, Schuylkill Fuel Corp. v Nieberg Realty Corp., supra, p 307), is barred.

Plaintiff does not seriously dispute the preclusive effect of common-law res judicata principles to its current claim. Instead, plaintiff relies on RPAPL 747 (2), which was enacted, at least in part, to overrule the harsh effects of those principles in the limited situation where the restrictions on the Civil Court’s jurisdiction prevent a party from seeking affirmative equitable relief in the context of a summary holdover proceeding (see, Seventh Ann Report of NY Judicial Council, 1941, at 457-458). The operative language of this statute provides that the judgment in a summary proceeding to recover possession under RPAPL article 7 "shall not bar an action, proceeding or counterclaim, commenced or interposed within sixty days of entry of the judgment, for affirmative equitable relief which was not sought by counterclaim in the proceeding because of the limited jurisdiction of the court.” It is plaintiff’s contention that its current claim falls under this provision’s remedial umbrella because, as a request for declaratory and injunctive relief, the claim could not have been placed before the Civil Court in the summary holdover proceeding.

Whatever the merits of this contention (cf. RPAPL 743; CCA 905) or the proper scope of the statute’s reach, it is plain that plaintiff cannot invoke the statute as a means of overcoming the common-law bar against the assertion of its present claim. Since plaintiff failed to commence its Supreme Court action "within sixty days of entry of the [Civil Court] judgment,” it did not meet the express requirements of the statute and, as a consequence, cannot benefit from its provisions.

Nor can plaintiff avoid the effect of the statute’s timeliness requirement by asserting, as it does, that the Supreme Court action was actually commenced within 60 days if that period is measured from the date plaintiff was served with notice of entry of the Civil Court judgment. The statutory language clearly and unambiguously measures the time for commencing the action from entry of judgment and not from service of notice of entry. Although plaintiff argues that use of the latter date would be fairer, we decline to rewrite the statute to add language that the Legislature did not see fit to include (see, Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208).

We note that, in this instance, it certainly cannot be said that the use of entry of judgment, rather than service of notice of entry, as the triggering point for the timeliness requirement was purely the result of a legislative oversight that might be corrected through judicial interpretation (cf. People v Morse, 62 NY2d 205). To the contrary, because the Judicial Council’s original recommendation that the 60-day period run from service of notice of the judgment’s entry was deleted when the predecessor to RPAPL 747 (2) was enacted by the Legislature (compare, Seventh Ann Report of NY Judicial Council, 1941, at 455, with Civ Prac Act § 1445, as amended L 1942, ch 286), we must assume that the Legislature’s choice of entry of judgment as the triggering point was a deliberate one. Moreover, it may be assumed that the omission of a "service of notice of entry” rule was not accidental, since the Legislature has previously used such terminology in connection with other limitations period (see, e.g., CPLR 5513 [a]) and would presumably have used it here if that had been its intention.

Finally, there exists a sound basis in policy for restricting actions under RPAPL 747 (2) to those brought within 60 days of entry of the prior judgment. Adopted to modify the common law, the statute permits the assertion of claims affecting the right to possess real property even after the parties’ possessory rights have been adjudicated and embodied in a final judgment. As a result, the availability of the statute leads to a degree of uncertainty in an area of law where certainty has particular importance. Given the statute’s effect, it is not difficult to discern why the Legislature would choose to establish a limitations provision that is both short and precisely bounded (see, CCA 1401) rather than one whose length is dependent on the parties’ diligence in serving notice of entry. Indeed, were service of the notice of entry the critical point from which the 60-day limitations period in RPAPL 747 (2) is measured, the oversight of a party could well leave the possessory rights to property unsettled for an indefinite period of time. Since there is a strong public interest in the finality and certainty of judgments affecting possessory interests, the Legislature’s use of a fixed triggering point, such as entry of judgment, to mark the beginning of the statute’s limitations period was certainly a rational one which we cannot and would not disturb.

Hence, plaintiff’s present action, commenced more than 60 days after the entry of the Civil Court judgment against it, cannot be saved under the terms of the statute from the bar of the common-law res judicata doctrine. Accordingly, the dismissal of its complaint by the trial court was entirely proper, and the order of the Appellate Division affirming that dismissal should be affirmed, with costs.

Chief Judge Wachtler and Judges Meyer, Simons and Hancock, Jr., concur; Judges Kaye and Alexander taking no part.

Order affirmed, with costs.

      . Plaintiffs first Supreme Court action for declaratory relief against the Church was commenced in February 1980, after the Church had brought its summary holdover proceeding. That action was dismissed on the ground that the issues could be resolved in the Civil Court. Following this court’s unfavorable decision on its appeal from the Civil Court judgment, plaintiff successfully moved to vacate the judgment on grounds of newly discovered evidence. The judgment was reinstated on the Church’s appeal to Appellate Term. According to the parties’ briefs, a second such motion is now pending before the Civil Court.

      . The absence of a compulsory counterclaim rule in New York (see, Siegel, NY Prac § 452, at 598-599) does not affect this analysis. Our permissive counterclaim rule may save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed in the parties’ prior action (see, Batavia Kill Watershed Dist. v Charles 0. Desch, Inc., 83 AD2d 97, affd 57 NY2d 796). It does not, however, permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action.

      . Contrary to plaintiff’s alternative argument, its time to commence a second action under RPAPL 747 (2) did not begin to run anew when the Civil Court judgment was temporarily vacated on its "newly discovered evidence” motion.


text:
    Pennsylvania General Insurance Company, as Subrogee of Anthony J. Krupa, Plaintiff, v Austin Powder Company et al., Appellants-Respondents, et al., Defendants, and Bison Ford Truck Sales, Respondent-Appellant.
    Argued October 7, 1986;
    decided November 25, 1986

      POINTS OF COUNSEL

      Sheldon Hurwitz and Dan D. Kohane for respondent-appellant.
    I. Where the public is protected and the parties to a contract agree to allocate the risk of loss through insurance, there should be no objection to subrogation against one’s own insured. (Beck v Renahan, 46 Misc 2d 252, 26 AD2d 990;
      Vescera v Dancy, 52 Misc 2d 830; Transport Trailer Serv. v Upjohn Co., 506 F Supp 442; Schwartz v Lipkin & Son, 76 AD2d 141; Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., 93 AD2d 337, 61 NY2d 569; Insurance Co. v Dayton Tool & Die Works, 57 NY2d 489; Penn Aluminum v Aetna Cas. & Sur. Co., 61 AD2d 1119; Tishman Co. v Carney & Del Guidice, 36 AD2d 273, 34 NY2d 941; Extaza of 34th St. v City Stores Co., 62 NY2d 919; Hertz Corp. v Dahill Moving & Stor. Co., 79 AD2d 589, 54 NY2d 619.) II. Harmonizing the contractual terms between the parties does not affect Bison’s right to indemnity against Austin Powder. In no event, however, should Austin Powder be able to exclude more than $50,000, the primary lease coverage, from Bison’s right to indemnity. (Amata v Our Lady of Peace R. C. Church, 56 NY2d 999; Allstate Ins. Co. v Travelers Ins. Co., 39 NY2d 784; Motor Vehicle Acc. Indem. Corp. v Continental Natl. Am. Group Co., 35 NY2d 260.) III. Subrogation comports with the public policy to allow the ultimate economic burden to be borne by the party causing the loss in the first place. (Pittsburgh-Westmoreland Coal Co. v Kerr, 220 NY 137; Gerseta Corp. v Equitable Trust Co., 241 NY 418; Memphis & Little Rock R. R. v Dow, 120 US 287; Employers Mut. Liab. Ins. Co. v Indemnity Ins. Co., 37 Misc 2d 421.)

      Peter J. Murrett, III, for appellants-respondents.
    I. The established rule is that an insurer has no right of subrogation against its insured under the same policy. (Schwartz v Lipkin & Son, 76 AD2d 141; Leaseway of Cent. N. Y. v Climax Mfg. Co., 81 AD2d 1038, 54 NY2d 822.) II. Arguments advanced by respondent-appellant do not warrant creation of an exception to the established rule that an insurer has no right of subrogation against its insured under the same policy. (Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551.) III. Authorities cited by respondent-appellant do not support an exception to the established rule at issue herein. (Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., 61 NY2d 569; Penn Aluminum v Aetna Cas. & Sur. Co., 61 AD2d 1119; Tishman Co. v Carney & Del Guidice, 36 AD2d 273, 34 NY2d 941; Chrysler Leasing Corp. v Public Administrator, 85 AD2d 410; Extaza of 34th St. v City Stores Co., 62 NY2d 919; Hertz Corp. v Dahill Moving & Stor. Co., 79 AD2d 589; Liberty Mut. Ins. Co. v Prudential Prop. & Cas. Ins. Co., 93 AD2d 814, 59 NY2d 1021; Allstate Ins. Co. v Dailey, 47 AD2d 375; Tom Sawyer Country Day School v Providence Washington Ins. Co.,
      108 AD2d 810.) IV. The court below erred to the extent it inferentially may have limited the rule at issue herein only to primary coverage. (Motor Vehicle Acc. Indem. Corp. v Continental Natl. Am. Group Co., 35 NY2d 260; Allstate Ins. Co. v Travelers Ins. Co., 39 NY2d 784.) V. If the indemnity agreement is held enforceable, the matter should be remitted for a hearing as to the amount of damages, if any, recoverable pursuant to the indemnity agreement.
   OPINION OF THE COURT

Titone, J.

An insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered. This rule applies even where the insured has expressly agreed to indemnify the party from whom the insurer’s rights are derived and has procured separate insurance covering the same risk. Inasmuch as the cross claim for indemnification in this case sought relief inconsistent with these principles, the Appellate Division was correct in affirming its dismissal.

Defendant Austin Powder Company rented a truck from defendant Bison Ford Truck Sales under a rental contract in which Bison Ford agreed to obtain primary insurance coverage in certain stated amounts and Austin Powder agreed to indemnify Bison Ford for liability arising out of Austin Powder’s use of the vehicle. Bison Ford had insured the vehicle with both a Basic Automobile Policy and a Comprehensive Automobile Liability excess policy issued by Liberty Mutual Insurance Company. Austin Powder, in turn, had a policy providing excess coverage for nonowned business vehicles and a second Comprehensive General Liability Policy covering contractual liability, both issued by Aetna Insurance Company.

On April 23, 1979, the truck, which was being used by Austin Powder to transport dynamite and blasting caps, exploded while it was parked outside of the Lancaster quarry. It is alleged that the accident occurred because defendant Leonard Rinker, Austin Powder’s employee, overloaded the truck, causing the wheels and wheel wells to overheat from friction. The explosion caused approximately one million dollars in property damage.

In a prior declaratory judgment action, the Appellate Division held that defendants Austin Powder and Rinker were "additional insureds” under the Basic Automobile Policy issued by Liberty Mutual. The court further found that policy applicable to the losses sustained as a result of the explosion (Aetna Cas. & Sur. Co. v Liberty Mut. Ins. Co., 91 AD2d 317). Although it adjudicated the priority of the various automobile insurance policies, the Appellate Division declined to address Bison Ford’s or Liberty Mutual’s right to recover from Austin Powder under the indemnification provisions in the rental contract. Inasmuch as none of the underlying claims had yet been resolved and neither the fact nor extent of Bison Ford’s loss had been determined, the court concluded that a declaratory judgment on the indemnification issue would be premature. Neither of the parties sought to appeal from the court’s order.

Subsequently, Pennsylvania General Insurance Co., suing as subrogee for Anthony Krupa, brought an action against Austin Powder, Rinker and Bison Ford, among others, to recover for the damage to Krupa’s automobile that had been sustained as a result of the explosion. Liberty Mutual paid $2,252.35 in settlement of that property damage claim, obtaining a release only on behalf of Bison Ford. With the fact of an actual loss thereby established, Bison Ford then interposed a cross claim for indemnification against Austin Powder.

The indemnification claim was upheld by Special Term, but the Appellate Division reversed and dismissed the cross claim in its entirety. The court first attempted to harmonize the insurance and indemnification clauses in the rental contract by reasoning that Bison Ford’s obligation was to provide primary coverage, while Austin Powder had undertaken only to indemnify for excess loss (115 AD2d 243, 245). The court noted that this analysis was consistent with its ranking of the insurance policies’ priorities in the prior declaratory judgment action, as well as with the rule precluding an insurer from being subrogated to a claim against its own insured for the very liability the insured’s policy covers. Recognizing that Austin Powder had an unranked insurance policy covering contractual liability, the court nonetheless declined to comment on "the possible involvement” of that policy, since the $2,252 claim before it fell far short of the limits of the primary coverage. Following the Appellate Division’s ruling, Bison Ford appealed from the order of reversal, and Austin Powder, along with its employee Leonard Rinker, appealed from so much of the Appellate Division’s decision as determined Austin Powder’s obligation to indemnify for excess loss.

We agree with the Appellate Division to the extent that court determined that the indemnification claim should be dismissed. Our analysis, however, differs somewhat from that used by the Appellate Division, which looked primarily to the parties’ rental agreement as a basis of allocating liability. Because the public policies governing insurers’ subrogation rights are implicated in this case, it is those overriding policies, rather than the parties’ agreement, that must guide our analysis.

Initially, we note that Bison Ford has no indemnification claim in its own right against Austin Powder. As its motion papers acknowledge, Bison Ford has not and will not sustain any actual out-of-pocket loss as a result of the property damage claim asserted in this action, since the action has been settled and payment has been made on its behalf by its insurer, Liberty Mutual. Thus, to the extent Bison Ford is seeking indemnification, its cross claim must be regarded as one asserted on behalf of the insurer, the real party in interest here. Viewed in that light, the cross claim cannot be sustained because it represents, in effect, an attempt by an insurer to recover from its other insured, Austin Powder, for the very loss for which Austin Powder was supposed to be covered. Such an unseemly result would not be consistent with the equitable principles that govern subrogation claims.

The insurer’s right of subrogation, long recognized as a matter of equity, has traditionally been applied to claims against third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse (see, e.g., Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 47; 16 Couch, Cyclopedia of Insurance Law § 61:133, at 310 [Anderson 2d ed]; see also, Wager v Providence Ins. Co., 150 US 99; Home Ins. Co. v Pinski Bros., 160 Mont 219, 500 P2d 945, 949). A third party, by definition, is one to whom the insurer owes no duty under the insurance policy through which its loss was incurred (16 Couch, op. cit., at 310; see, Home Ins. Co. v Pinski Bros., supra, p 949). On the other hand, it has often been said that an insurer may not be subrogated to a claim against its own insured, at least when the claim arises from an incident for which the insurer’s policy covers that insured (see, e.g., Chrysler Leasing Corp. v Public Administrator, 85 AD2d 410; Beck v Renahan, 26 AD2d 990, affg 46 Misc 2d 252; 16 Couch, op. cit. §§ 61:133, 61:134; see also, Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., 61 NY2d 569). The principal, although alluded to in our prior decisions (Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., supra, p 573), has never been formally addressed by this court. Having considered the relevant authorities, we now conclude that the rule is a sound one. To allow the insurer’s subrogation right to extend beyond third parties and to reach its own insured would permit an insurer, in effect, "to pass the incidence of the loss * * * from itself to its own insured and thus avoid the coverage which its insured purchased” (Home Ins. Co. v Pinski Bros., 160 Mont 219, 226, 500 P2d 945, 949, supra).

Bison Ford does not dispute this premise, but rather argues that it is inapplicable here because, although Austin Powder is an "additional insured” under Liberty Mutual’s Basic Automobile Policy, it was Bison Ford, rather than Austin Powder, that paid for the coverage. This argument, however, is unrealistic in that it overlooks the very likely possibility that Bison Ford’s insurance costs were passed along to Austin Powder in the form of an increased vehicle rental price. More importantly, the argument is unpersuasive because it ignores one of the primary considerations militating against allowing subrogation in these circumstances.

The rule against allowing subrogation claims against an insured is based, in part, on the potential for conflict of interest that is inherent in these situations (see, e.g., Chrysler Leasing Corp. v Public Administrator, supra; Home Ins. Co. v Pinski Bros., supra, p 949). Here, for example, the interests of the insured indemnitor, Austin Powder, can only be fully protected through the vigorous defense of the indemnitee, Bison Ford. Yet, if indemnification from Austin Powder could be had for losses sustained on Bison Ford’s behalf, Liberty Mutual would have less incentive to defend Bison Ford from claims made against it. As a consequence, allowing indemnification might sanction an indirect breach of the insured’s obligation to defend its insured Austin Powder. Furthermore, it would sanction a direct breach of the primary obligation the insurer undertook — the obligation to indemnify Austin Powder from loss (see, Home Ins. Co. v Pinski Bros., supra, p 949).

Since allowing Liberty Mutual to claim indemnification here would, directly or indirectly, place the insurer’s own interests at variance with those of its insured, we are not persuaded by Bison Ford’s argument that an exception to the rule should be created, because of the mere fortuity that Austin Powder had separate insurance covering the same loss and had expressly agreed to indemnify. Indeed, the public interest in assuring integrity of insurers’ relations with their insureds and in averting even the potential for conflict of interest in these situations must take precedence over the parties’ private contractual arrangements.

Having determined that the cross claim against Austin Powder and Rinker was properly dismissed by the Appellate Division, it remains for us to dispose of the appeals purportedly taken by those defendants. In that regard, we note that dismissal is required because Austin Powder and Rinker were not aggrieved by the Appellate Division order, which gave them all the relief they sought on this motion (see, CPLR 5511). That the Appellate Division’s memorandum may contain language or reasoning which those parties deem adverse to their interests does not furnish them with a basis for standing to take an appeal (Cohen and Karger, Powers of the New York Court of Appeals § 91, at 394-395 [rev ed]).

We further note, however, that, as the Appellate Division duly observed, the claim that court had before it in this appeal did not exceed the limits of Austin Powder’s primary coverage under the Liberty Mutual Basic Automobile Policy. Accordingly, to the extent that the court discussed Austin Powder’s potential obligation to provide indemnification for losses in excess of the primary coverage, its conclusion is not binding in subsequent proceedings.

Furthermore, in the present posture of this case, it is unclear whether Austin Powder may be deemed an "additional insured” under the Comprehensive Automobile Liability excess policy issued to Bison Ford by Liberty Mutual. Since, under our analysis, Liberty Mutual’s right to be subrogated to an indemnification claim against Austin Powder for loss in excess of its basic coverage would be affected by the resolution of that question, any attempt to delineate the full scope of Liberty Mutual’s subrogation rights within the context of the present motion would be premature.

Accordingly, on the appeal taken by defendant Bison Ford Truck Sales, the order of the Appellate Division should be affirmed, with costs. The appeals taken by defendants Austin Powder Company and Leonard Rinker should be dismissed, without costs, on the ground that those parties are not aggrieved by the Appellate Division order (CPLR 5511).

Chief Judge Wachtler and Judges Meyer, Kaye and Alexander concur; Judges Simons and Hancock, Jr., taking no part.

On appeal by defendant Bison Ford Truck Sales, order affirmed, with costs.

Appeal by defendants Austin Powder Co. and Leonard Rinker, dismissed, without costs.

      . The Appellate Division did not include Austin Powder’s Comprehensive General Liability Policy with Aetna in its analysis of the insurers’ obligations.

      . It is elementary that, absent a clear contractual expression to the contrary, a cause of action for indemnification does not arise until the indemnitee has actually sustained a loss (see, Bay Ridge Air Rights v State of New York, 44 NY2d 49). Of course, a party who has not yet been cast in damages or sustained actual loss may assert an anticipatory claim for common-law or contractual indemnification (see, McDermott v City of New York, 50 NY2d 211, 218, n 3). Here, however, the averments in Bison Ford’s own motion papers negate even the possibility that it will suffer loss as a result of this action.

      . CPLR 1004 allows an insurer’s subrogation claim to be prosecuted in the name of the insured, where the insured has "executed to his insurer either a loan or subrogation receipt, trust agreement, or other similar agreement”. The insurance policy issued to Bison Ford by Liberty Mutual expressly provides that the insured on whose behalf a payment is made "must transfer” any rights of recovery it might have to the insurer. It is unclear from the present record, however, whether an appropriate instrument has in fact, been executed. It is therefore impossible for us to determine whether Bison Ford is pursuing the indemnification claim on its own behalf or on behalf of its insurer, under CPLR 1004. However, our resolution of the substantive question here, makes such a determination unnecessary.

      . We note that we do not necessarily adopt the Appellate Division’s view that Austin Powder’s promise in the rental agreement to indemnify was limited to reimbursement for excess loss.

      . It is undisputed that as an employee of Austin Powder, Rinker was also an "additional” insured under Liberty Mutual’s Basic Automobile Policy. Hence, our reasoning is equally applicable to the cross claim asserted against him.


author: Meyer, J.

text:
    423 South Salina Street, Inc., Appellant, v City of Syracuse et al., Respondents.
    Argued October 16, 1986;
    decided November 20, 1986

      POINTS OF COUNSEL

      Justin L. Vigdor, James S. Grossman and David M. Dollinger for appellant.
    I. Plaintiff’s complaint, the allegations of which must be assumed to be true, states causes of action for violation of plaintiff’s substantive due process rights and for a taking without just compensation. (Monell v New York City Dept. of Social Servs., 436 US 658; Gomez v Toledo, 446 US 635; First Broadcasting Corp. v City of Syracuse, 78 AD2d 490; Owen v City of Independence, 445 US 622; Sterling v Constantin, 287 US 378; Kansas City S. Ry. Co. v Road Improvement Dist. No. 6, 256 US 658; Morton Salt Co. v City of S. Hutchinson, 159 F2d 897; Ampco Printing-Advertisers’ Offset Corp. v City of New York, 14 NY2d 11, 379 US 5; Fulton Mkt. Cold Stor. Co. v Cullerton, 582 F2d 1071, 439 US 1121.) II. Overriding public policy considerations governing "standing” in a section 1983 action prevent the City of Syracuse from escaping liability for its predatory conduct by the simple expedient of labeling plaintiff a "speculator”. (Eisen v Eastman, 421 F2d 560, 400 US 841; Data Processing Serv. v Camp, 397 US 150; Barlow v Collins, 397 US 159; Citizens Council on Human Relations v Buffalo Yacht Club, 438 F Supp 316; Evers v Dwyer, 358 US 202; Meyers v Pennypack Woods Home Ownership Assn., 559 F2d 894; Coggins v Carpenter, 468 F Supp 270.) III. The decision of the court below improperly relied on this court’s decision in Grant Co. v Srogi which dealt only with the issue of a preliminary injunction; the preclusive principle of prior adjudication has no application herein. (Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; Sylvander v Farmers & Traders Life Ins. Co., 21 AD 2d 851; Grant Co. v Srogi, 52 NY2d 496; Matter of Crichton, 20 NY2d 124; Eastern Air Lines v Trans Caribbean Airways, 29 AD2d 379, 23 NY2d 709.)

      C. Frank Harrigan, Corporation Counsel (James L. Gelormini of counsel), for City of Syracuse, respondent.
    I. Plaintiff’s failure to file a notice of claim bars this action. (Mills v County of Monroe, 59 NY2d 307; Cardo v Lakeland Cent. School Dist., 592 F Supp 765; Phelps Steel v City of Geneva, 89 AD2d 652; Wilson v Garcia, 471 US 261; Fields v Board of Higher Educ., 63 NY2d 817; Burnett v Grattan, 468 US 42; Board of Regents v Tomanio, 446 US 478; Johnson v Railway Express Agency, 421 US 454; Thomann v City of Rochester, 256 NY 165; Ponsrok v City of Yonkers, 254 NY 91.) II. The complaint is time-barred. (Fields v Board of Higher Educ., 94 AD2d 202, 63 NY2d 817; Wilson v Garcia, 471 US 261; Duffy v Horton Mem. Hosp., 66 NY2d 473; Mills v County of Monroe, 59 NY2d 307.) III. Count I fails to state a violation of plaintiff’s constitutional rights. (Grant Co. v Srogi, 52 NY2d 496; O'Malley v Brierley, 477 F2d 785; Magnano v Hamilton, 292 US 40; Commonwealth Edison Co. v Montana, 453 US 609; Pittsburgh v Alco Parking Corp., 417 US 369; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Penn Cent. Transp. Co. v New York City, 438 US 104; Goldblatt v Hempstead, 369 US 590; Pennsylvania Coal v Mahon, 260 US 393; PruneYard Shopping Center v Robins, 447 US 74.) IV. Plaintiff does not have equitable standing to seek vacatur of the tax deed. (Grant Co. v Srogi, 52 NY2d 496; Matter of American Ins. Co. [Messinger], 43 NY2d 184; Ryan v New York Tel. Co., 62 NY2d 494; Matter of Reilly v Reid, 45 NY2d 24; Holdeen v Rinaldo, 28 NY2d 947; Haskins v Thomajan, 99 AD2d 463; Slater v Slater, 208 App Div 567; Duggan v Platz, 263 NY 505.) V. Count II fails to state a violation of plaintiff’s constitutional rights. (Nelson v City of New York, 352 US 103;
      Balthazar v Mari Ltd., 301 F Supp 103, 396 US 114; Mandarelli v City of Auburn, 419 US 810; Sheehan v County of Suffolk, 67 NY2d 52; Pittsburgh v Alco Parking Corp., 417 US 369.)

      William L. Allen, Jr., for Metropolitan Development Foundation of Central New York, Inc., and another, respondents.
    I. No cause of action was stated under section 1983 against defendants Metropolitan Development Foundation or Amlea because no participation by those defendants was alleged in any acts of taking that are set forth in the counts of this complaint. (Buck v Board of Elections, 536 F2d 522; Stearns v Smith, 551 F Supp 32; Light v Blackwell, 472 F Supp 333; Brooks v Peters, 322 F Supp 1273; Rios v Marshall, 530 F Supp 351; Kalmanash v Smith, 291 NY 142; Raitport v Provident Natl. Bank, 451 F Supp 522; Lifshutz v Adams, 285 NY 180; Newton v Livingston County Trust Co., 231 App Div 355.) II. Since the statute itself teaches only one who "deprives” or "causes” a person to be deprived of civil rights shall be liable, this complaint as to Metropolitan and Amlea was properly dismissed because it fails to show they caused plaintiff to be deprived of anything. (Batista v Rodriguez, 702 F2d 393; Dobson v Camden, 725 F2d 1003; Whiteside v State of Washington, 534 F Supp 744; Kolko v City of Rochester, 93 AD2d 977; Glatzer v Scappatura, 99 AD2d 505; Halperin v Lieberman, 271 App Div 878.) III. The necessary showing that defendants Metropolitan and Amlea acted "under color of law” is absent here, so no cause of action was stated as to these private parties. (Rios v Marshall, 530 F Supp 351; Sanabria v Village of Monticelli, 424 F Supp 402; Webb v Thalenberg, 81 AD2d 665.) IV. Appellant South Salina Street, Inc. baldly asserted below that Metropolitan and Amlea are necessary parties. Appellant cites no authority for that claim. Both the statute, CPLR 6501, and case law establish that those defendants are not necessary parties. Dismissal of the suit as against those parties was plainly proper. (Kindberg v Freeman, 39 Hun 466, 109 NY 653; Westchester Fed. Sav. & Loan Assn. v H.E.W. Constr. Corp., 29 AD2d 670; Grid Realty Corp. v Winokur, 58 AD2d 824, 43 NY2d 956.)
   OPINION OF THE COURT

Meyer, J.

Although plaintiff, 423 South Salina Street, Inc., lacked standing necessary to enjoin the City of Syracuse (City), from transferring real property taken by the City for nonpayment of taxes, it has standing to maintain an action pursuant to the Federal Civil Rights Act of 1871 (42 USC § 1983) for damages resulting from the City’s alleged misuse of its taxing power. Moreover, its complaint states a cause of action under that section which, being governed as to limitations by CPLR 214 (5), was timely brought. The action is, however, barred by plaintiff’s failure to serve a notice of claim as required by General Municipal Law § 50-i, which failure likewise barred any claim based upon violation of the New York State Constitution. The order of the Appellate Division should, therefore, be affirmed, with costs.

I

In September 1976, plaintiff purchased from the University of Rochester (University), property which the University had leased to the W. T. Grant Company in 1944. Grant constructed a five-story building on the property which it then sold to and leased back from the University. The lease required Grant to pay an annual rent of $77,322.32 and all taxes, utility charges, insurance and maintenance costs.

The City assessed the property for each year since 1964 at $1,135,700. Assessment review proceedings for the years 1971-1976 were begun, but Grant’s tenancy ended in 1976 when it went bankrupt and vacated the premises.

The University then sold the property to plaintiff for $25,000, plaintiff agreeing to assume liability for the unpaid 1976 taxes, penalties and interest on the property, which brought the total consideration to $175,774.32. Plaintiff, however, neither paid those taxes, nor the taxes for ensuing years 1977-1979, nor when tax sales were conducted for the 1976-1978 arrearages did it seek to redeem the property within a year after the sale as permitted by Real Property Tax Law § 1010. On April 9, 1979, the City of Syracuse took a tax deed to the property, but in the following month plaintiff obtained a preliminary injunction restraining the City from transferring title to the property until completion of the 1976-1979 assessment review proceeding.

That proceeding ended on April 9, 1981 with our affirmance of the Appellate Division’s modification of the property assessments for the years 1971-1976, in an opinion which noted the "aggravated pattern of misuse of the taxing power” by the City (Grant Co. v Srogi, 52 NY2d 496, 518). The order affirming the grant of the preliminary injunction was, however, reversed. The opinion held that there is equitable power to enjoin collection of a tax when there is a clear showing of intentional overassessment tantamount to fraud and the taxpayer was without relief from the imminent deprivation of his property. It concluded, however, that while Grant may have been entitled to such an injunction, plaintiff, by reason of its failure to pay the 1976-1979 taxes, lacked "equitable standing to assert the aggravated pattern of tax abuse to which its predecessor in interest was subject as the basis for injunctive relief’ (52 NY2d, at p 518).

On April 2, 1982 plaintiff commenced a section 1983 action in Federal court as to which a lis pendens was recorded. That action was, however, dismissed on grounds of comity (566 F Supp 484) and that dismissal was affirmed by the Second Circuit (724 F2d 26) on December 14, 1983. Plaintiff then commenced the present action on an essentially identical complaint, well within the six-month period allowed by CPLR 205 (a) (Gross v Newburger Loeb & Co., 85 AD2d 709; 1 Weinstein-Korn-Miller, NY Civ Prac j[ 205.09) and promptly thereafter recorded a lis pendens as to it. On November 22, 1983 the City conveyed the property to defendant Metropolitan Development Foundation and on December 19, 1983 the Foundation conveyed the property to defendant Amlea (New York), Inc.

All three defendants moved to dismiss the complaint, the City upon the grounds that the plaintiff lacked standing, that the complaint failed to state a cause of action and that the action was barred by plaintiff’s failure to serve a notice of claim within the applicable Statute of Limitations; defendants Metropolitan and Amlea on the grounds that the complaint stated no cause of action against them and that any action was barred by limitations. Special Term dismissed the complaint holding the action barred as to the City by plaintiff’s failure to comply with the notice of claim provisions of the City Charter and by the one-year 90-day limitation provision of General Municipal Law § 50-i (1) (c), and as to defendants Foundation and Amlea that no cause of action was stated against them. On appeal to the Appellate Division that court affirmed, concluding, in light of our prior holding in Grant Co. v Srogi (52 NY2d, at p 518, supra), that plaintiff "was not the one subjected to this unlawful conduct”, that the City had not violated plaintiff’s civil rights and that, therefore, the complaint failed to state a cause of action (112 AD2d 745). Plaintiff’s appeal to this court was dismissed on the ground that no substantial constitutional question was directly involved (66 NY2d 914), but its motion for leave to appeal, thereafter made, was granted (67 NY2d 605).

Before us plaintiff argues that it has standing to maintain the action, that the complaint states a cause of action, that the applicable Statute of Limitations is three years, that the notice of claim provision is inapplicable but in any event was substantially complied with, and that the courts below abused their discretion in failing to grant it leave to replead its State constitutional claims. We conclude that plaintiff has standing to seek damages from the City, but not against the Foundation and Amlea, that the complaint states a cause of action to which the three-year statute applies, but that both the present action and any action that could be pleaded under the State Constitution are barred by plaintiff’s failure to give the required notice of claim. We, therefore, affirm.

II

The Appellate Division erred in extending our holding in Grant Co. v Srogi (supra) beyond the facts on which it was based (see, Preston Corp. v Fabrication Enters., 68 NY2d 397 [decided herewith]). As the language quoted above from the Grant opinion makes clear, we held only that plaintiff "lacks equitable standing to assert the aggravated pattern of tax abuse to which its predecessor in interest was subject as the basis for injunctive relief.” But as the discussion preceding that conclusion evidences, the factual basis of the claimed abuse of the taxing power set forth in the papers before the court was "quite compelling” (52 NY2d, at p 517) and might have been sufficient to justify restraining the City from transferring the Grant property, notwithstanding that restraints on enforcement of revenue collection are, and must be if government is to continue to function, the exception rather than the rule. Grant of the injunction was reversed not alone because plaintiff’s predecessor, rather than plaintiff, had been "subjected to this unlawful conduct” (52 NY2d, at p 518), but also because plaintiff, having purchased the property with the understanding that it would assume all tax liability then owing, had never paid the taxes. Thus, it was not a lack of likelihood of success on the merits, but a balancing of the equities, which favored the City rather than plaintiff, that was the basis for the conclusion that plaintiff was without standing to obtain equitable relief.

It was not, however, a holding that plaintiff had no standing to sue for damages or had not sufficiently stated a cause of action for damages. Notwithstanding CPLR 103 (a) and its predecessor provisions, "the distinctions between law and equity * * * are still very much with us” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 103, p 14). A section 1983 plaintiff who, because he has not demonstrated irreparable injury is not entitled to injunctive relief, is not thereby barred from recovery of damages in the action (City of Los Angeles v Lyons, 461 US 95, 111-113). Likewise, as a matter of State procedure we have long recognized that " 'a court of equity * * * may order a sum of money to be paid to the plaintiff and give him a personal judgment therefor when that form of relief becomes necessary in order to prevent a failure of justice and when it is for any reason impracticable to grant the specific relief demanded’ ” (Doyle v Allstate Ins. Co., 1 NY2d 439, 443; Ungewitter v Toch, 26 NY2d 687, affg 31 AD2d 583; Kaminsky v Kahn, 23 AD2d 231, 237).

Thus, plaintiff has standing to maintain its cause of action for damages. It does not, however, have standing to obtain equitable relief in the form of vacatur of the deed taken by the City, of the City’s deed to the Foundation and of the Foundation’s deed to Amlea. We need not consider whether the public policy upon which the lis pendens provisions of CPLR 6501 is based is overborne by the policy discussed in Grant Co. v Srogi (supra) against impeding the right of the municipality to collect revenues, or the res judicata effect of our reversal of the preliminary injunction granted in the prior assessment review proceeding (cf. Preston Corp. v Fabrication Enters., supra), for plaintiff has offered no explanation for its failure to pay the taxes found due in that prior proceeding. Its failure to pay those taxes was at least in part a predicate for the 1979 tax deed. Moreover, plaintiff has made no offer in this proceeding to pay taxes due on the property for any of the open years, notwithstanding the long-standing rule that it is a condition precedent to a plaintiff’s obtaining equitable relief that the plaintiff himself do equity (Duggan v Platz, 263 NY 505, 507).

Because plaintiff is without standing to seek vacatur of the deed, dismissal of so much of the complaint as sought that relief was proper, and, defendants Foundation and Amlea having been joined as defendants only with respect to that relief, dismissal of the complaint as to them was also correct.

Ill

There remains for discussion whether plaintiff’s cause of action against the City for damages is sufficient and, if so, whether it is barred either by limitations or by the failure to file a notice of claim. We conclude that a cause of action is stated and that the action was timely brought, but that the failure to file a notice of claim is fatal to the action.

A

The City’s insistence that no cause of action is stated is predicated on its contentions that plaintiff seeks to recover for injury to others, that the exercise of the taxing power cannot constitute a taking, and that plaintiff has an adequate State remedy. As to the first, plaintiff responds that it acquired from the University not only the property but all of the University’s rights incident thereto, including its interest in pending tax proceedings. While plaintiff may be able to prove at trial that it in fact succeeded to the University’s rights with respect to constitutional violations antedating September 1976, nothing in the record establishes its acquisition of more than the property itself. That does not conclude the matter, however, for plaintiff was directly involved as the taxpayer as to the 1976-1980 assessments, during which period the pattern of overassessment in each year, notwithstanding prior decisions reducing by some two-thirds the prior assessments imposed, continued, culminating in the City’s deeding the property to itself in 1979.

Thus the gravamen of plaintiff’s complaint is not just that the taxes imposed were excessive but that it has been the victim of "an aggravated pattern of misuse of the taxing power,” begun against its predecessor and continued as to it, which sought to require it to pay excessive taxes on the property involved despite rulings that prior assessments "were unlawful by reason of overvaluation” (52 NY2d, at p 518). That such an abuse of the taxing power may constitute a denial of due process was declared long ago by this court (Gordon v Cornes, 47 NY 608, 612). And that the facts alleged in the complaint sufficiently describe an abuse tantamount to constitutional violation appears from the description of the "pattern of misuse”, which operated against the University prior to 1976 and continued after plaintiffs acquisition of the property in 1976 to operate against it, set forth in the Appellate Division’s Grant opinion (71 AD2d 457, 474): "It is not difficult to sort out the considerations at work here. The city’s constitutional debt limit and the amount of important financial aid it receives are computed by the total assessed value of the real property in the city. An important segment of any municipal assessment roll is the commercial properties of its downtown shopping area. These properties not only contribute high values to the assessment roll, but downtown property owners represent a relatively innocuous part of the city constituency. Thus, there is much to win and little to risk by keeping downtown assessments high.” Although plaintiff did not pay the taxes for 1976 and thereafter, its complaint alleges that it was unable to do so because "all potential lessees and purchasers ultimately refused to rent or buy because of the onerous and unlawfully excessive taxes.” A section 1983 cause of action for damages resulting from the City’s alleged violation of plaintiffs constitutional rights is sufficiently stated.

Moreover, the fact that plaintiff may have a State remedy in inverse condemnation (see, Matter of Keystone Assoc. v Moerdler, 19 NY2d 78; Ferguson v Village of Hamburg, 272 NY 234; Gordon v Cornes, supra) does not require dismissal of its section 1983 cause of action. The Supreme Court "has not interpreted § 1983 to require a litigant to pursue state judicial remedies prior to commencing an action under this section” (Board of Regents v Tomanio, 446 US 478, 491). The City’s argument to the contrary is predicated upon cases such as Hudson v Palmer (468 US 517) and Collier v City of Springdale (733 F2d 1311, cert denied 469 US 857) considering whether, in light of Parratt v Taylor (451 US 527), a due process violation could be found to exist if the State provides a meaningful postdeprivation remedy. But, as the Sixth Circuit held in Wilkerson v Johnson (699 F2d 325, 329), to apply Parratt outside the prisoners’ rights context is inconsistent with Supreme Court decisions, beginning with Monroe v Pape (365 US 167), holding that a section 1983 plaintiff is not barred by the availability of a State court remedy. In any event, Hudson and Parratt were concerned with whether there had been a due process violation when a postdeprivation hearing had been provided, not whether, as is here alleged, a municipality may, having provided due process for the determination of a tax assessment, obtain for itself a taxpayer’s property by repeatedly and for an impermissible purpose refusing to abide by the assessment determination, with the result that the property can neither be rented nor sold and is eventually taken by the City for nonpayment of the excessive taxes thus imposed. The due process violation for which plaintiff seeks recompense is, thus, not related to determination of the tax assessment, but to the City’s refusal to abide by the determination made in plaintiff’s favor. In that context, "the remedy provided in § 1983 [is] independently enforceable whether or not it duplicates a parallel state remedy” (Wilson v Garcia, 471 US 261, 279).

B

The present action, having been commenced within six months after the Second Circuit’s affirmance of the dismissal of the prior Federal action, is timely if that action was timely brought (CPLR 205 [a]; Wooster v Forty-Second St. & Grand St. Ferry R. R. Co., 71 NY 471; Buchholz v United States Fire Ins. Co., 269 App Div 49, appeal dismissed 294 NY 807). The City rightly contends that after the Supreme Court’s decision in Wilson v Garcia (471 US 261, supra) our holding in Fields v Board of Higher Educ. (63 NY2d 817, affg 94 AD2d 202) that CPLR 214 (2) governing liability created by statute applies to section 1983 actions is no longer good law. We disagree, however, with its argument that the one-year 90-day period established by General Municipal Law § 50-i (1), rather than the three-year period governing actions for damages for personal injuries (CPLR 214 [5]), applies under the Wilson rationale.

Wilson held that uniformity within each State was consistent with the borrowing principle contained in 42 USC § 1988 and that that statute should, therefore, be "construed as a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims” (471 US, at p 275). Although it was argued that the action before it, for personal injuries resulting from an assault by a New Mexico State Police officer, was barred by New Mexico’s two-year statute covering "[ajctions against a governmental entity or a public employee for torts”, the Supreme Court held that the three-year statute applicable generally to actions for injury to the person had been correctly applied. It reasoned that section 1983 conferred a general remedy for injuries to personal rights and rejected the shorter statute applicable to tort actions against public employees because (471 US, at p 279): "we are satisfied that Congress would not have characterized § 1983 as providing a cause of action analogous to state remedies for wrongs committed by public officials. It was the very ineffectiveness of state remedies that led Congress to enact the Civil Rights Acts in the first place. Congress therefore intended that the remedy provided in § 1983 be independently enforceable whether or not it duplicates a parallel state remedy. The characterization of all § 1983 actions as involving claims for personal injuries minimizes the risk that the choice of a state statute of limitations would not fairly serve the federal interests vindicated by § 1983.” (Footnote and citations omitted.)

That reasoning answers as well the City’s suggestion that the three-year provision of CPLR 214 (5) should not be applied because to do so will, in light of General Municipal Law § 50-e (5), also extend to three years the time to apply for permission to serve a late notice of claim. That the shorter one-year 90-day provision of General Municipal Law § 50-i would limit the permissible extension as to a notice of claim relating to a personal injury claim against a municipality is simply irrelevant under Wilson’s reasoning. If the shorter statute governing public employee torts is not to be applied to bar the action altogether, it should not be applied to bar an application for extension of time to file a notice of claim. The more particularly is this so in light of the factors which General Municipal Law § 50-e (5) requires the court to consider when presented with an extension application.

Finally as to limitations, it is only necessary to note that the culmination of the City’s alleged abuse of the tax assessment process was the transfer by the City to itself of plaintiffs property on April 9, 1979, less than three years before the Federal action was begun. The City argues, in an apparent effort to obtain dismissal of count I of the complaint, that that count excludes the taking of the April 9, 1979 deed as an element. Dismissal would be improper, however, because paragraph 26 of the complaint specifically alleges the taking of the tax deed by the City and attaches a copy of the deed to the complaint. That allegation is realleged as part of count I in paragraph 71 and the allegations of count I are realleged as part of count II. Whether and, if so, to what extent acts of the City antedating April 2, 1979 should be excluded would, were we not dismissing for other reasons, be for the Trial Judge to pass upon at trial, but dismissal of count I on limitations grounds would, at this point, be premature.

C

Dismissal of the complaint is, however, required by reason of plaintiffs failure to file the notice of claim called for by the General Municipal Law or to apply for an extension of time to do so within the three-year limitations period. Plaintiff argues that our decision in Mills v County of Monroe (59 NY2d 307, cert denied 464 US 1018) should be repudiated as a matter of Federal supremacy, that the Syracuse City Charter notice of claim provision is preempted by State law, that the present action is within Mills’ public interest exception, and that it has, in any event, substantially complied with the requirement.

1.

The applicability to a section 1983 action of a State notice of claim provision, involving as it does construction of 42 USC § 1988, is a matter of Federal law, but when, as here, there is neither a decision of the Supreme Court nor uniformity in the decisions of the lower Federal courts, a State court required to interpret a Federal statute is not bound to follow the decision of the Federal courts or precluded from exercising its own judgment (Flanagan v Prudential-Bache Sec., 67 NY2d 500, 506, cert denied — US —, 107 S Ct 402).

In Chardon v Soto (462 US 650, 657) the Supreme Court identified the policies governing whether a local procedural rule should be borrowed as "deterrence, compensation, uniformity, or federalism.” In concluding in Mills that the notice of claim provision of County Law § 52 applied to a section 1983 cause of action, we pointed out that such provisions serve an important State interest in that the governmental subdivision is allowed a meaningful opportunity to investigate the claim in a timely manner and thus protect itself against fraudulent claims and that General Municipal Law § 50-e authorizes a court to extend the time to file such a notice to the full limitations period upon a finding that the delay has not caused the municipality substantial prejudice. That authority, we reasoned, and the fact that the statute is not applied to an action to vindicate a public interest give the statute a flexibility such that it could not be said to offend the Federal policy underlying the Civil Rights Act section there involved (42 USC § 1981). Furthermore, the opinion noted, such a provision is not inconsistent with Federal law merely because it may cause the plaintiff to lose (citing Board of Regents v Tomanio, 446 US 478, 488, supra, quoting Robertson v Wegmann, 436 US 584, 593).

The policy considerations favoring application have also been discussed in Cardo v Lakeland Cent. School Dist. (592 F Supp 765) and by the dissenting Judges in Brown v United States, 742 F2d 1498, cert denied 471 US 1073). Cardo, referring to Mills’ State interest reasons, added that the two principal policies embodied in section 1983 were deterrence and compensation and, adopting the reasoning of the Supreme Court in Tomanio, 446 US, at p 488, supra) with respect to the Statute of Limitations there involved, concluded that "[njeither of these policies is significantly affected by the notice of claim requirement, since plaintiffs can readily enforce their claims, thereby recovering compensation and fostering deterrence, simply by filing a timely notice of claim” (592 F Supp, at p 773).

The Brown dissent answered the majority’s contention that Federal law was to be considered deficient only if it did not supply a universally familiar procedural aspect of litigation by pointing to Robertson v Wegmann (436 US 584, supra), in which the court borrowed a State survivorship statute which caused the action to abate, finding no inconsistency in so doing, and to cases applying local rules which preclude tolling of limitations while an independent action is being pursued (Board of Regents v Tomanio, supra) and start the running of limitations anew when a tolling period ends (Chardon v Soto, supra).

More importantly, however, the dissent pointed to the ubiquity of notice of claim provisions and to the facts that they serve many of the same policies as do Statutes of Limitations, that they go to the remedy in the same way that a limitations statute does, that the wide range of services provided by a municipality makes it more likely that it may cause injury without knowing that it has done so, that the notice of claim required to be filed does not require the kind of preparation necessary for litigation and leaves the claimant with an additional two and one-half years to investigate, negotiate, settle or sue. It noted also that none of the four policies identified by the Supreme Court in Chardon v Soto (supra) would be offended by a notice of claim provision: deterrence and compensation for the same reason advanced in Tomanio and Cardo (supra); uniformity because, as Robertson v Wegmann stated (436 US, at p 594, n 11), "reliance on state law obviously means that there will not be nationwide uniformity on these issues”, and federalism because a notice of claim statute ensures freshness of evidence, helps prevent unreasonable claims and promotes justice.

With respect to deterrence, we add that because a municipal official can never know in advance whether an injured party will file a timely notice of claim or be granted leave to file a late notice of claim, the effect of the provision is practically nil (cf. Robertson v Wegmann, 436 US, at p 592, supra). And with respect to the purposes served by a notice provision, we note the not inconsiderable benefit in reducing the burden on courts, both State and Federal, when the notice results in negotiation and settlement of claims rather than litigation.

The considerations against applying a notice of claim provision have been discussed by the Brown majority, and in Williams v Allen (616 F Supp 653) and Burroughs v Holiday Inn (106 F Supp 629, on reh 621 F Supp 351). The reasoning of the Brown majority was that borrowing is to be indulged in only when there is a deficiency in the Federal scheme and not to do so is inconsistent with Federal policy, that the borrowing of State procedural rules has been limited to rules that "clearly establish the point at which a cause of action ends” (742 F2d, at p 1505), that a notice of claim provision has a purpose quite distinct from Statutes of Limitation, tolling provisions and survival rules, that the application of a local procedural rule "that would significantly inhibit the ability to bring federal actions” (742 F2d, at p 1507) was not reasonable, and that the notice of claim provision was a condition precedent to accrual of a right against the municipality and had its roots in sovereign immunity which is antithetical to the Federal scheme. Mills was distinguished by the majority because of "the unusual flexibility of the relevant New York provision; it was subject to waiver by the court if to waive would promote equity or the action would vindicate 'the public interest’ ” (742 F2d, at p 1509, n 6).

Williams, like the Brown majority opinion, reasoned that application of notice of claim provisions would effectively extinguish an important Federal right and found a potential for confusion and inequity in the public interest exception referred to in Mills, which would result in barring an individual claimant who failed to give notice and sued for himself alone rather than in the public interest. And the Burroughs court found no void or deficiency in the Federal statute that made it incomplete without resort to State law, and on reconsideration read Wilson’s refusal to apply the State limitations statute applicable to governmental torts as inconsistent with application of a notice of claim provision.

We are persuaded that application in Federal civil rights actions of the notice of claim requirements of General Municipal Law § 50-i as limited by General Municipal Law § 50-e is proper. Whatever may be the situation with respect to the statutes of other States, it cannot be said that the provisions of section 50-i interpose an added element in the Federal cause of action. The cause of action arises when the conduct involved occurs and will only be barred if the claimant neither gives notice within 90 days, nor within the next two years and nine months seeks an extension of the right to do so. Moreover, such an application for leave to serve a late notice "shall not be denied on the ground that it was made after commencement of an action” (General Municipal Law § 50-e [5]). The provision is, therefore, essentially the same as a Statute of Limitations, balancing the same interests as does such a statute, but adding a notice procedure that is not difficult to comply with (cf. Burnett v Grattan, 468 US 42, 50). More importantly, in view of the opportunity afforded by section 50-e (5) of applying for leave to file a late notice, the failure to file such a notice within the 90-day period prescribed in section 50-e (1) (a) is not necessarily fatal to plaintiffs case. Compliance will, as noted above, have no practical effect on deterrence at all and will affect compensation only as to those who have, as did the present plaintiff, slept on both the right to give the required warning of impending suit to the municipality and the right to obtain leave of court, at any time during the full three-year limitation period, to give notice late. Nor in our view does the public interest exception for State agency enforcement proceedings, or for class action type proceedings normally involving a private Attorney-General type of action, militate against application of section 50-e to an individual claim for damages such as is here involved.

In light of the foregoing analysis and bearing in mind that the Supreme Court has yet to consider the question, we conclude that General Municipal Law § 50-i is applicable to this action.

2.

Plaintiffs contentions that the action is within the public interest exception and that it has substantially complied with section 50-e may be more quickly answered. Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd. (35 NY2d 371, 380) involved enforcement by the State Division of Human Rights of an order made by it acting in the public interest. But as we later made clear in Board of Educ. v New York State Div. of Human Rights (44 NY2d 902, 904), notice of claim provisions do apply to proceedings before the Division when " 'only enforcement of private rights’ ” is sought. Mills stated the scope of the exception as "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group” (59 NY2d, at p 311 [emphasis supplied]). As in Mills, so here, although plaintiff avers that the City has engaged in unlawful practices affecting others than plaintiff, the relief sought was limited to enforcement of plaintiffs private rights rather than the vindication of rights of similarly situated downtown property owners as a class.

Nor can plaintiffs application in the tax assessment proceeding for a preliminary injunction or the notice of claim filed under the Eminent Domain Procedure Law constitute substantial compliance with General Municipal Law § 50-e. Neither set forth any claim under the Civil Rights Act (Alaxanian v City of Troy, 69 AD2d 937; see, Davidson v Bronx Mun. Hosp., 64 NY2d 59). The EDPL notice was not filed within the required 90 days after the City took the tax deed, and, as already noted, plaintiff never sought leave to file a late notice as permitted by General Municipal Law § 50-e (5). Nor, no notice of claim having been filed, was there any basis for the exercise by the lower courts of the discretion vested in them by General Municipal Law § 50-e (6).

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Alexander and Titone concur; Judges Kaye and Hancock, Jr., taking no part.

Order affirmed, with costs.

      . Although our notice of claim holding is a sufficient basis for affirmance and we would, therefore, normally find it unnecessary to consider the other grounds, we deem it appropriate to do so in the present case because they are directly raised by the motions to dismiss.

      . Overruled on an unrelated issue Daniels v Williams (474 US —, 106 S Ct 662).

      . Overruled on an unrelated issue Monell v New York City Dept. of Social Servs. (436 US 658, 663).

      . General Municipal Law § 50-e (5) provides that: “Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits. An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation.”

        . In the present action the City relies upon both Syracuse City Charter § 8-115 (2) and General Municipal Law § 50-i. Plaintiffs argument that the City Charter is a local law is incorrect, the Charter having been adopted by general statute (L 1885, ch 26) and amended to include the notice of claim provision by like statutes (L 1905, ch 682). Plaintiff also contends that General Municipal Law § 50-i (2) makes its provisions applicable rather than the City Charter section. We do not find it necessary to decide whether the Charter’s broader coverage makes it inconsistent with section 50-i, for Wilson v Garcia (471 US 261), having characterized section 1983 actions as involving claims for personal injury, such "constitutional tort” actions (Pauk v Board of Trustees, 654 F2d 856, 866, cert denied 455 US 1000) are within the notice of claim requirements of section 50-i, although for the reasons above stated (at pp 486-487) not within its one-year 90-day limitation period. For like reason such claim as the complaint asserts based on the State Constitution is also barred by reason of the failure to give notice of claim (Phelps Steel v City of Glens Falls, 89 AD2d 652), and we, therefore, need not consider plaintiff’s suggestion that it should have been granted leave to replead to flesh out that claim.

      . Brown concerned a "constitutional tort” action brought under Bivens v Six Unknown Fed. Narcotics Agents (403 US 388), section 1983 not having been made applicable to the District of Columbia at the time of the incident involved in Brown (742 F2d 1498, 1500, nn 1, 2). The considerations involved are, however, essentially the same. Indeed, the opinions rely on a number of section 1983 cases. Brown was decided en banc by the Court of Appeals for the District of Columbia Circuit, the court dividing 7 to 4 against application of a District notice of claim provision.

      . Fuchilla v Layman (210 NJ Super 574, 510 A2d 281) distinguished Mills on this basis also.

      . Cases refusing to apply a notice of claim statute are in the majority, but except for the three above discussed advance no reason, other than precedent, for the conclusion (Rosa v Cantrell, 705 F2d 1208, 1221, cert denied 464 US 821; Brandon v Board of Educ., 635 F2d 971, 973, n 2, cert denied 454 US 1123; May v Enomoto, 633 F2d 164, 167; Doty v Rochester City Police Dept., 625 F Supp 829; Williams v Allen, 616 F Supp 653; Burroughs v Holiday Inn, 606 F Supp 629, on reh 621 F Supp 351; Altaire Bldrs. v Village of Horseheads, 551 F Supp 1066; Glover v City of New York, 401 F Supp 632; Carrasco v Klein, 381 F Supp 782; Láveme v Corning, 316 F Supp 629; Williams v Horvath, 16 Cal 3d 834, 548 P2d 1125; Overman v Klein, 103 Idaho 795, 654 P2d 888; Fuchilla v Layman, 210 NJ Super 574, 510 A2d 281; Doe v Ellis, 103 Wis 2d 581, 309 NW2d 375). Cases applying such a provision to a section 1983 action, in addition to Mills and Cardo discussed above, are Deary v Three Un-named Police Officers (746 F2d 185) and Indiana Dept. of Public Welfare v Clark (478 NE2d 699, cert denied — US —, 106 S Ct 2893).