author: Alexander, J.

text:
    In the Matter of John A. Matt, Sr., Respondent, v James L. Larocca, as Commissioner of the New York State Department of Transportation, Appellant.
    Argued November 13, 1987;
    decided December 21, 1987

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (John Q. Driscoll, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.
    I. Since petitioner was not compelled to waive immunity from prosecution, his refusal to answer relevant questions about his official actions warrants his dismissal. The Fifth Amendment does not preclude this determination. (Uniformed Sanitation Men Assn. v Commissioner of Sanitation, 426 F2d 619, 406 US 961; Gardner v Broderick, 392 US 273; Sanitation Men v Sanitation Commr., 392 US 280; Matter of Mountain v City of

      Schenectady, 100 AD2d 718; Garrity v New Jersey, 385 US 493; Weston v U.S. Dept. of Hous. & Urban Dev., 724 F2d 943; Matter of Altieri [Roberts — County of Dutchess], 92 AD2d 1028; Dolan v Kelly, 76 Misc 2d 151; People v Avant, 33 NY2d 265; Matter of McGrath v Kirwan, 32 AD2d 700.) II. Since petitioner’s Fifth Amendment privilege against self-incrimination, duly invoked, would not protect him from termination of his employment for refusal to answer relevant questions in an official inquiry, the failure of counsel to advise him of his immunity from criminal prosecution had no bearing on his eventual termination. (People v Rappaport, 47 NY2d 308; People v Masiello, 28 NY2d 287; People v Mulligan, 29 NY2d 20; People v Tramunti, 29 NY2d 28; Matter of Anonymous Attorneys, 41 NY2d 506; Greco v Board of Examiners, 91 AD2d 1108, 60 NY2d 709; Matter of Tanico v McGuire, 80 AD2d 297.)

      William F. Sheehan for respondent.
    I. Petitioner was never advised that his answers would not be used against him criminally and he was therefore entitled to stand on his right against self-incrimination. (Kastigar v United States, 406 US 441; Gardner v Broderick, 392 US 273; Lefkowitz v Cunningham, 431 US 801; Garrity v New Jersey, 385 US 493; Matter of Mountain v City of Schenectady, 100 AD2d 718, 64 NY2d 607; Spevack v Klein, 385 US 511; Uniformed Sanitation Men Assn. v Commissioner of Sanitation, 392 US 280; Stevens v Marks, 383 US 234; Raley v Ohio, 360 US 423; People v Rappaport, 47 NY2d 308.) II. Petitioner’s conduct was not willful and does not constitute misconduct or insubordination. (Matter of Griffin v Thompson, 202 NY 104; Matter of Kubus [Ross], 62 NY2d 534; Matter of Mountain v City of Schenectady, 100 AD2d 718; Matter of Koutnik v Murphy, 25 AD2d 197.) III. Petitioner’s conduct did not warrant the termination of his employment. (Matter of Miller v Kling, 291 NY 65; Matter of Ryan v New York State Liq. Auth., 273 App Div 576; People ex rel. Long v Whitney, 143 App Div 17; Matter of Griffin v Thompson, 202 NY 104; People ex rel. Kennedy v Brady, 166 NY 44.)
   OPINION OF THE COURT

Alexander, J.

Petitioner, a supervisory employee with the Waterways Division of the Department of Transportation where he had been employed for 34 years, was dismissed in November 1984 for refusing to answer questions directly relating to the performance of his official duties. In early 1984, the Department commenced an initial investigation apparently in response to reports of misconduct involving the unauthorized absence of employees in petitioner’s section and the use of State property and facilities for the personal benefit of employees under petitioner’s supervision. In the early stages of this investigation, petitioner cooperated by submitting to an interview by his superiors and answering numerous questions. Following this interview, petitioner was served with disciplinary charges pursuant to Civil Service Law § 75, alleging several breaches of his supervisory responsibilities as well as violations of various sections of the Penal Law. At that time, petitioner was suspended for 30 days.

As a result of the Department turning over information related to these charges, petitioner also became the target of a criminal investigation conducted by the Oneida County District Attorney’s office. It does not appear, however, that petitioner was ever questioned by the District Attorney’s office in connection with the criminal investigation.

Before a hearing was held on petitioner’s disciplinary charges, the Commissioner of Transportation instituted an investigation of the misconduct in petitioner’s division pursuant to section 61 of the Public Officers Law and requested that petitioner appear to testify under oath as to matters under his jurisdiction. Petitioner refused. The Commissioner thereafter served him with a subpoena duces tecum requiring him to appear and be examined under oath and to produce a diary maintained by him during the time periods relevant to the misconduct (Public Officers Law § 61). When petitioner again refused, apparently on advice of counsel, a court order compelling his appearance was obtained. Although petitioner appeared with counsel in compliance with that court order, he did not produce his work-related diary. Moreover, he refused to answer questions pertaining to his duties as supervisor, and on the advice of counsel, repeatedly invoked his Fifth Amendment privilege against self-incrimination. Notwithstanding that he was told that a refusal to answer questions in the face of a direct departmental order would be considered insubordination, petitioner persisted in refusing to answer questions that directly related to the performance of his duties as a supervisory employee. Petitioner was not informed by the Commissioner, or the Commissioner’s counsel at the section 61 proceeding, that he was entitled by operation of law to immunity from the use of his answers in any subsequent criminal prosecution.

New charges of insubordination were preferred against petitioner as a result of his failure to respond to questions and his failure to produce his diary. At a hearing held on those additional charges only, petitioner contended that because the criminal investigation was still pending, and because he had not been offered immunity from prosecution should he answer the questions posed at the section 61 proceeding, he invoked— on his counsel’s advice — his privilege against self-incrimination. The Hearing Officer concluded that, notwithstanding petitioner’s claim that he had acted on counsel’s advice, petitioner had willfully refused to answer questions and to produce his diary and that disciplinary action is permitted for the willful refusal to answer pertinent questions — even in the face of self-incrimination. He recommended a two-month suspension without pay. The Commissioner accepted the Hearing Officer’s determination, but rejected the recommended sanction and instead ordered petitioner discharged, finding that he "had the benefit of constitutionally sufficient use immunity” and "must bear the responsibility for his action in thwarting the Department’s orderly process of investigation and administration of the State’s business”.

Thereafter, petitioner instituted this article 78 proceeding challenging the Commissioner’s determination. He asserted that his discharge violated his constitutionally guaranteed right against self-incrimination, that the finding of willful misconduct is not supported by the record, and that the penalty of dismissal after 34 years of faithful and competent service is so disproportionate as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233).

Addressing only the issue of whether petitioner was entitled to notice of the automatic receipt of immunity, a majority at the Appellate Division, in purported reliance on our decision in People v Masiello (28 NY2d 287), granted the petition. The majority held that "[a]n employee should be accurately and adequately apprised of the immunity conferred in return for answering potentially incriminating work-related questions as a matter of fundamental fairness” (Matter of Matt v Larocca, 117 AD2d 151, 153). Two Justices dissented, finding Masiello inapposite since here "the immunity conferred * * * attached automatically by operation of law.” (Matter of Matt v Larocca, 117 AD2d, at 154.) We now reverse.

It would of course offend the guarantee against self-incrimination to require a public servant to answer questions — even those relating to the performance of such servant’s official duties — upon the threat of dismissal, and to make use of the incriminating statements in a subsequent criminal prosecution (People v Avant, 33 NY2d 265, 271; see, Lefkowitz v Turley, 414 US 70, 78-79; Gardner v Broderick, 392 US 273, 276-277; Garrity v New Jersey, 385 US 493, 500; Uniformed Sanitation Men Assn. v Commissioner of Sanitation, 426 F2d 619, 624, cert denied 406 US 961). Indeed, we have held that answers " 'elicited upon the threat of the loss of employment are compelled and inadmissible in evidence’ ” (People v Avant, 33 NY2d, at 271, supra, quoting Lefkowitz v Turley, 414 US 70, 85, supra; see, Shales v Leach, 119 AD2d 990). The Supreme Court has held that when a public employee is compelled to answer questions or face removal upon refusing to do so, the responses are cloaked with immunity automatically, and neither the compelled statements nor their fruits may thereafter be used against the employee in a subsequent criminal prosecution (see, Lefkowitz v Turley, 414 US 70, 78-79, supra; Gardner v Broderick, 392 US 273, 276-277, supra; Garrity v New Jersey, 385 US 493, 500, supra; see also, People v Avant, 33 NY2d 265, 271, supra). The resulting immunity that attaches when a witness is ordered to answer such questions, therefore, flows directly from the Constitution, attaches by operation of law, and is not subject to the discretion of the employer.

It is settled, however, that the State "may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence” (People v Avant, 33 NY 2d 265, 271, supra; see also, Gardner v Broderick, 392 US 273, supra; Uniformed Sanitation Men Assn. v Commissioner of Sanitation, 426 F2d 619, supra; Shales v Leach, 119 AD2d 990, supra). Public employees, charged with a public trust, do not have an absolute right to refuse to account for their official actions and at the same time retain their employment. "To require a public body to continue to keep an officer or employee who refuses to answer pertinent questions concerning his official conduct, although assured of protection against use of his answers or their fruits in any criminal prosecution, would push the constitutional protection beyond its language, its history or any conceivable purpose of the framers of the Bill of Rights” (Uniformed Sanitation Men Assn. v Commissioner of Sanitation, 426 F2d 619, 626, supra). As the Supreme Court observed in Gardner v Broderick (392 US 273, 278, supra), where a public servant (there a policeman) refuses "to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself * * * the privilege against self-incrimination would not [be] a bar to his dismissal”.

Thus, what is proscribed as unconstitutional is to condition public employment upon a waiver of the privilege against self-incrimination (Gardner v Broderick, 392 US 273, 278, supra). Hence, a public employer may not demand that its employee waive immunity in exchange for continued employment, and may not dismiss that employee for refusing to do so (Gardner v Broderick, 392 US 273, 278, supra). Here petitioner does not contend that he was ordered to waive his right to immunity. Rather, he argues that at the time of the Public Officers Law § 61 proceeding, he was unaware that he would be entitled to immunity automatically upon answering the questions posed. Thus, although petitioner now concedes in his brief to us that immunity would have attached to his compelled answers by operation of law, he nevertheless argues that, as a matter of "fundamental fairness”, he should have been explicitly advised of this immunity, and that the burden was upon the Commissioner to assure him that his answers would not be used against him in the criminal prosecution. Finally, petitioner maintains, because he was not so advised, his resulting dismissal was in violation of his privilege against self-incrimination, citing People v Masiello (28 NY2d 287, supra).

Petitioner, however, misapplies our holding in Masiello (28 NY2d 287, supra). There, the issue was whether a purported grant of immunity to a witness who appeared before a Grand Jury but refused to testify, was a sufficient foundation upon which to base a criminal contempt conviction. The witness had refused to testify notwithstanding having been notified that the Grand Jury had voted, under section 619-c of the former Code of Criminal Procedure, to confer immunity. The notice given to the witness provided for only testimonial or "use” immunity, however, and not the full transactional immunity afforded by the statute. The witness therefore would have proceeded to testify under the misconception that the scope of the immunity he received was less than that to which he was actually entitled by statute. We held that the witness could not thereafter be prosecuted for refusing to testify under those circumstances because "fundamental fairness” required that a witness not be misadvised — indeed that a witness be accurately informed — concerning the scope of immunity conferred by a Grand Jury (People v Masiello, 28 NY2d 287, 291, supra). Thus, Masiello held only that a witness appearing before a Grand Jury must be apprised of the extent of the immunity conferred by statute before a criminal contempt conviction may be had for the witness’s refusal to testify (see also, People v Rappaport, 47 NY2d 308, 313).

The circumstances here are very different from those in Masiello. Petitioner did not appear before a Grand Jury investigating criminal charges; rather, his appearance was at a civil proceeding convened to investigate disciplinary charges of work-related misconduct. He was neither requested to waive his privilege against self-incrimination, nor was he faced with a possible criminal contempt conviction for refusing to testify; he stood only to be dismissed from his employment on charges of insubordination should he refuse to answer the questions posed by his employer. These questions specifically related to the performance of petitioner’s official duties: wrongfully permitting an employee to be paid for time spent doing outside work for private individuals; approving time sheets he knew to be inaccurate; and allowing his subordinates to use State-owned materials and equipment for their personal benefit. Moreover, unlike Masiello where the scope of the immunity conferred depended upon the discretionary action of the Grand Jury, here the immunity attached automatically by operation of law. Indeed, the immunity protecting petitioner flows directly from the Constitution, and neither the Commissioner, nor counsel representing the Commissioner at the investigatory proceeding, had the power either to confer the immunity or to define or alter its breadth.

These critical distinctions persuade us that Masiello does not require the result urged by petitioner, and the State was not obligated to inform petitioner that immunity attached before ordering him to answer questions. As the Commissioner’s representative at the investigatory proceeding did not have the power to confer immunity, or to modify the immunity to which petitioner was entitled, there is no basis for concluding that he nonetheless had an affirmative obligation to inform petitioner of the automatic attachment of immunity. It is true that the State is required to inform a witness appearing before a Grand Jury of the fact that immunity will be received, even though, under current law, such witnesses are conferred transactional immunity automatically by operation of law (see, CPL 190.40; People v Rappaport, 47 NY2d 308, 313, supra). The consequences, however, of refusing to testify before a Grand Jury — criminal prosecution for contempt — are more serious than those of refusing to answer questions in a Public Officers Law § 61 proceeding — dismissal from public employment. Furthermore, a witness testifying before a Grand Jury ordinarily does not have a right to have an attorney present, which is a crucial factor underlying the State’s obligation to inform the witness of the immunity conferred in the Grand Jury context. On the other hand, in this civil proceeding petitioner was assisted and advised by counsel present throughout the hearing, a situation which does not implicate the danger faced by a witness testifying before a Grand Jury, who does not have immediate access to counsel, of unwittingly forfeiting its privilege against self-incrimination.

We conclude therefore that insofar as petitioner was not requested to waive his right to immunity before answering questions specifically, directly and narrowly relating to his official duties, his dismissal did not violate fundamental fairness or his privilege against self-incrimination. Moreover, there is substantial evidence in the record to support the Commissioner’s determination that petitioner willfully refused to answer the questions posed, and dismissal under the circumstances is not " ' "so disproportionate to the offense * * * as to be shocking to one’s sense of fairness” ’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233, supra).

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the determination of respondent Commissioner reinstated. Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

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

      . Petitioner was advised on three separate occasions by counsel for the Department that "[his] refusal to answer these questions will be considered further acts of insubordination” — that "the question is a direct order for an answer” — and "that it is the Department’s position that your failure to answer that question in the face of a direct order constitutes insubordination.”

      . In granting the petition the Appellate Division directed petitioner’s reinstatement with back pay and all benefits lost. The parties having stipulated to a judgment awarding petitioner $50,789.75 in back pay and benefits, the Commissioner appeals to us as of right (CPLR 5601 [d]) bringing up for review the order of the Appellate Division.


source: Caselaw Access Project

author: Kaye, J. Simons, J.

license: Public Domain

text:
    In the Matter of Helene E. McCann et al., Appellants, v John V. Scaduto, as Treasurer of Nassau County, et al., Respondents. In the Matter of Harriet D. Rinaldo, Individually and as Executrix of Agnes M. Ahman, Deceased, Appellant, v Shirley Stone et al., Respondents.
    Argued October 5, 1987;
    decided December 23, 1987

      POINTS OF COUNSEL

      Bernard S. Meyer, Michael A. Ciaffa and Kenneth L. Gartner for Helene E. McCann, appellant in the first above-entitled proceeding.
    I. The provisions of the Nassau County Administrative Code which require notice of the sale of tax liens only by publication violate due process. (North Laramie Land Co. v Hoffman, 268 US 276; Leigh v Green, 193 US 79; Bell’s Gap R. R. Co. v Pennsylvania, 134 US 232; Botens v Aronauer, 32 NY2d 243, 414 US 1059; Longyear v Toolan, 209 US 414; Fuentes v Shevin, 407 US 67; Boodie v Connecticut, 401 US 371; Goldberg v Kelly, 397 US 254; Sniadach v Family Fin. Corp., 395 US 337; Mennonite Bd. of Missions v Adams, 462 US 791.) II. Mrs. McCann was constitutionally entitled to notice of and an opportunity for a hearing before she could be finally deprived of title to her home. (King v Mullins, 171 US 404; Kentucky Union Co. v Kentucky, 219 US 140; Chapman v Zobelein, 237 US 135; Botens v Aronauer, 32 NY2d 243; Sheehan v County of Suffolk, 67 NY2d 52; Fuentes v Shevin, 407 US 67; Blye v Globe-Wernicke Realty Co., 33 NY2d 15; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; Wolff v McDonnell, 418 US 539; Logan v Zimmerman Brush Co., 455 US 422.) III. The language of the notice of redemption was not reasonably calculated to apprise Mrs. McCann of the information constitutionally required. (Mullane v Central Hanover Trust Co., 339 US 306; Mennonite Bd. of Missions v Adams, 462 US 791; Covey v Town of Somers, 351 US 141; Memphis Light, Gas & Water Div. v Craft, 436 US 1; Matter of Palmer v Mann, 206 App Div 484, 237 NY 616; Matter of Ryan, 291 NY 376; Village of Larchmont v Sutton, 30 Misc 2d 245; Reigh v Schleigh, 784 F2d 1191; Dionne v Bouley, 757 F2d 1344; Finberg v Sullivan, 634 F2d 50.)

      Edward T. O’Brien, County Attorney (Joshua A. Elkin of counsel), for John V. Scaduto, respondent in the first above-entitled proceeding.
    I. The constitutional proscription against taking of property without due process of law is not violated by the procedure set forth in the Nassau County Administrative Code concerning the giving of notice of tax lien sales by publication. (Sheehan v County of Suffolk, 67 NY2d 52; Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418; Mullane v Central Hanover Trust Co., 339 US 306; Botens v Aronauer, 32 NY2d 243, 414 US 1059; Matter of City of New York [801-815 E. N. Y. Ave.], 290 NY 236; Mennonite Bd. of Missions v Adams, 462 US 791; Moss Estate v Town of Ossining, 268 NY 114; Baker v Springer, 270 App Div 639; Matter of Socci v Stone, 120 AD2d 531; Matter of Lichtenstein v Rocchio, 64 Misc 2d 701.) II. Assuming arguendo that Mennonite Bd. of Missions v Adams requires more than notice of a tax lien sale by publication under the Nassau County Administrative Code, it cannot be applied in the matter at bar. (Chevron Oil Co. v Huson, 404 US 97; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; Goldstein v Helvetia Constr. Corp., 73 AD2d 749.) III. The Due Process Clause does not require that a property owner be afforded an opportunity for a hearing and notice of such opportunity before final loss of property in a proceeding to enforce the collection of real property taxes. (Matter of City of New York [801-815 E. N. Y. Ave.], 290 NY 236; Botens v Aronauer, 32 NY2d 243; Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418; Sheehan v County of Suffolk, 67 NY2d 52.) IV. The language of the notice to redeem was reasonably calculated to convey the required information under the facts and circumstances herein.

      Steven Wimpfheimer for Shirley Stone, respondent in the first above-entitled proceeding.
    I. The court need not reach the constitutional issue as the Nassau County Administrative Code and New York Real Property Tax Law must be read together and when so read there is full compliance with due process. (Hirson v United Stores Corp., 263 App Div 646, 289 NY 564; Matter of Socci v Stone, 120 AD2d 531; Botens v Aronauer, 32 NY2d 243, 414 US 1059; Sheehan v County of Suffolk, 67 NY2d 52.) II. The recently decided case of Sheehan
      is controlling. (Sheehan v County of Suffolk, 67 NY2d 52; Mennonite Bd. of Missions v Adams, 462 US 791.) III. Appellant’s reliance on the Mennonite decision is misplaced. (Carl A. Morse, Inc. v Rentar Indus. Dev. Corp., 85 Misc 2d 304, 56 AD2d 30, 43 NY2d 952, 439 US 804; Texaco, Inc. v Short, 454 US 516; Truax v Corrigan, 257 US 312; Preston Co. v Funkhouser, 261 NY 140, 290 US 163; Jamaica Sav. Bank v Toomey, 77 Misc 2d 887; Bucho Holding Co. v Temporary State Hous. Rent Commn., 11 NY2d 469.) IV. In this case and under these circumstances the language of the notice to redeem was reasonably calculated to convey the required information. (Covey v Town of Somers, 351 US 141; Melahn v Hearn, 60 NY2d 944; Fresh Pond Rd. Assocs. v Estate of Schacht, 120 AD2d 561.) V. The court below abused its discretion in granting reargument and there is no basis for this appeal. (McCarthy v Volkswagen of Am., 55 NY2d 543; Eisenbach v Metropolitan Tr. Auth., 62 NY2d 973; Melahn v Hearn, 60 NY2d 944; Lefkowitz v Lebensfeld, 51 NY2d 442; Matter of State of New York v Avco Fin. Servs., 50 NY2d 383; Fresh Pond Rd. Assocs. v Estate of Schacht, 120 AD2d 561.)

      Bernard S. Meyer and Kenneth L. Gartner for appellant in the second above-entitled proceeding.
    Reversal is required for the reasons set forth in the brief of petitioners-appellants in the case of Matter of McCann v Scaduto, to be argued herewith.

      Edward T. O’Brien, County Attorney (Joshua A. Elkin of counsel), for John V. Scaduto and another, respondents in the second above-entitled proceeding.
    The order of the court below should be affirmed for all of the reasons set forth in the brief of respondent County Treasurer in the companion Matter of McCann v Scaduto case, to be argued herewith.

      Eugene R. Hurley, Jr., for Shirley Stone, respondent in the second above-entitled proceeding.
    I. The premise upon which appellant bases her argument is critically flawed. Issuance of a tax deed does not "deprive” an owner of possession, use, title or the ability to convey. A "final deprivation” can occur only from inaction over a six-year period on the part of the fee owner or a judgment in favor of the tax deed holder after an "opportunity to be heard”; and under New York law there is no "immediate deprivation” when either a lien is sold or a tax deed issued. (Melahn v Heran, 60 NY2d 944; O’Donnell v McIntyre, 118 NY 156; Roseth Realty Co. v Brighton & Ben

      sonhurst Elec. R. R. Co., 228 App Div 390, 254 NY 505; Intercounty Operating Corp. v County of Nassau, 267 App Div 957, 323 US 764, 293 NY 688, 326 US 761, 762; Memphis Light, Gas & Water Div. v Craft, 436 US 1.) II. In footnote 2 of the decision in McCann v Scaduto (123 AD2d 111, 114), the court below erred. Section 5-37.0 of the Nassau County Administrative Code is exclusive only as to RPTL 1002 (1). RPTL 1002 (4) has no counterpart in the Code nor does it contradict any other provisions of that special statute. Section 2006 of the RPTL is not to the contrary. (People ex rel. Empire Mtge. Co. v Cantor, 190 App Div 512; Town of Guilford v Board of Supervisors, 13 NY 143; Baker v Springer, 270 App Div 639; Strauch v Town of Oyster Bay, 263 App Div 833; Town of Irondequoit v County of Monroe, 158 Misc 123, 254 App Div 933, 279 NY 658; Moss Estate v Town of Ossining, 268 NY 114; Matter of Magnotta v Gerlach, 301 NY 143; Matter of Driscoll v Troy Hous. Auth., 6 NY2d 513; Matter of Whitman, 225 NY 1; Matter of Marcellus, 165 NY 70.) III. The decision in Mennonite Bd. of Missions v Adams (462 US 791 [1983]) was based on facts not applicable to the current controversy. There property was sold. Here it was not. There a lien could soar in value. Here it could not. There the "tax sale” could result in an "immediate deprivation”. Here it could not. (Mullane v Central Hanover Trust Co., 339 US 306.) IV. Whether the language in the notice to redeem is reasonably calculated to inform the uninformed and the unassisted is, at best, a subjective evaluation. The notice said what was required by the statute. In any event, its tenor and phrasing are of little moment when the ultimate result from its use — the tax deed — does not deprive a party of any right previously possessed and still grants he, she or them an "opportunity to be heard”.
   OPINION OF THE COURT

Kaye, J.

Each of these article 78 proceedings challenges the forfeiture of petitioner’s home under the former real estate tax collection enforcement provisions of the Nassau County Administrative Code (the Code) *111on the ground that the Code’s procedures violated the Federal constitutional guarantee of due process of law. We agree with petitioners that the Code’s failure to provide property owners with actual notice of tax lien sales was a deprivation of due process.

Summary of the Relevant Code Provisions

At the core of both proceedings are the former provisions of the Nassau County Administrative Code pertaining to real estate tax collection enforcement procedures.

The Code provided that each year the Nassau County Treasurer would compile a list of properties for which taxes had not been paid in the previous year. These taxes became a tax lien against each property (Code § 5-24.0 [4]). The County Treasurer then set a date for a sale of these tax liens (Code §§ 5-37.0, 5-39.0 [a]). The list of tax liens, together with a notice to property owners that the liens would be sold unless the outstanding charges were paid by a certain date, had to be published three times in a newspaper of general circulation (Code § 5-37.0 [a], [c]). The only provision in the Code for notice to the property owner of the tax lien sale was by publication; there was no provision for actual notice. The tax liens for which payment was not made by the date specified :in the published notice were then sold at public auction to the bidders willing to accept the lowest rate of interest on the outstanding balance (Code § 5-37.0 [c]; § 5-39.0 [a]; § 5-40.0).

The sale triggered a two-year redemption period. During that time a property owner could satisfy the lien by making payment to the County Treasurer of the outstanding taxes, together with interest, penalties and expenses (Code §§ 5-48.0, 5-50.0). Prior to the tax lien sale, the annual interest rate was 12% on overdue taxes. After the sale, however, the Code provided the following maximum interest and penalties. To satisfy the lien in the first six months after the tax lien sale, a property owner had to pay the overdue taxes and accrued interest plus a penalty equivalent to a percentage of the lien purchase price (the lesser of 10% or the interest rate agreed to by the purchaser). To redeem in the second six-month period, a second identical penalty was imposed; a third and fourth penalty were added for successive periods (Code § 5-40.0). In addition to satisfying the back taxes, interest and penalties, the owner had to reimburse the County and the lien purchaser for their expenses (Code § 5-50.0).

At any time after the expiration of 21 months from the tax lien sale, the purchaser of the tax lien had to serve a three-month notice to redeem by certified mail, return receipt requested, upon the record owner and other specified parties (Code § 5-51.0). The notice informed the recipient that title to the property was to be conveyed to the lienholder unless the lien was redeemed by the end of the redemption period (Code § 5-51.0 [former b] [4]). If the owner failed to redeem in the specified period, the lienholder either had to commence a foreclosure proceeding to obtain title, or simply apply to the County Treasurer for a deed of conveyance (Code § 5-51.0 [former b]). If the lienholder chose the latter option, the County Treasurer, upon receipt of the notice to redeem and proof of service, simply issued a deed of conveyance to the lienholder (Code § 5-51.0 [e]; § 5-53.0), vesting absolute title in the lienholder (Code §§ 5-53.0, 5-54.0 ¡b]).

The Code Provisions as They Were Applied to Petitioners

Petitioner Helene McCann lost her 30-year residence worth approximately $175,000 for a tax debt of $864.50; in Rinaldo a home worth more than $90,000 was sold because of unpaid taxes of $463.92. In both cases the tax lien sales — at which respondent Shirley Stone acquired her interest in each property — set in motion the process ending two years later in the transfer by respondent John Scaduto, Nassau County Treasurer, of absolute title to both homes to respondent Stone, upon her demand. No actual notice of the tax lien sale was shown to have been furnished to either owner, although at all times their names and addresses were known to the County. Instead, in accordance with the Code, notice of the tax lien sale was published in a newspaper of general circulation. The only actual notice provided to each petitioner before the conveyance of title to her home was a notice to redeem served by certified mail three months before the redemption period expired. There was no foreclosure proceeding; the property owners were afforded no right to a hearing and no right to return of the very substantial surplus over their indebtedness.

In both cases, the lien was not redeemed within the two-year period and the property was conveyed to respondent Stone. Each homeowner then instituted an article 78 proceeding seeking an order vacating the deed and directing the County to accept payment necessary to satisfy the tax liens. They contended that they had been denied due process because they had not received actual notice of the tax lien sales, because they had been denied any hearing before conveyance of the property, and because the notice they did receive was inadequate to inform them of the situation. In McCann, Special Term dismissed the petition and the Appellate Division affirmed. In Rinaldo, Special Term granted the petition and the Appellate Division reversed. Upon reargument the Appellate Division adhered to its dispositions.

Concluding that the failure to provide petitioners with actual notice of the tax lien sales in the circumstances deprived them of due process of law, we now reverse the Appellate Division orders. In view of this disposition, we do not reach the additional two grounds tendered in support of reversal.

Development of the Concept of Due Notice in Proceedings Affecting Property

The central meaning of procedural due process has long been clear. "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified” at a reasonable time and in a reasonable manner (Baldwin v Hale, 1 Wall [68 US] 223, 233, quoted in Fuentes v Shevin, 407 US 67, 80). But the actual requisites of proper notice have not been static. Historically, the reasonableness of notice depended on whether a proceeding was characterized as in personam or in rem. Generally, :if in personam, due process required personal service or its equivalent (see, e.g., Hamilton v Brown, 161 US 256; Pennoyer v Neff 95 US 714); but if in rem, notice by publication was good enough (see, e.g., Longyear v Toolan, 209 US 414; Ballard v Hunter, 204 US 241; Leigh v Green, 193 US 79).

Several justifications were commonly advanced for the sufficiency of constructive notice in in rem proceedings. First, nonresident landowners — who themselves could not be served —often had local caretakers to watch over their land and advise them of published notices affecting their property (see, e.g., Ballard v Hunter, 204 US 241, 254-255, supra; Huling v Kaw Val. Ry., 130 US 559, 563-564). Second, all landowners were charged with a duty to keep informed about the status of their land and presumed to know the consequences of nonpayment of taxes (see, e.g., Longyear v Toolan, 209 US 414, 418, supra). Third, in in rem proceedings, only "the land itself’ was in issue; affected individuals did not have to be present (see, e.g., Ballard v Hunter, 204 US 241, 258, supra). Finally, costly notice requirements impeded the State’s vital interest in collecting its revenues quickly and inexpensively, making constructive notice a reasonable balance of the competing interests (see, e.g., Leigh v Green, 193 US 79, 89, supra; see also, Comment, Mennonite Board of Missions v Adams: Insufficient Notice Under the New York In Rem Statutes, 33 Buffalo L Rev 389, 392-393).

While continuing to retain some validity today, the concept that publication affords due notice in all in rem proceedings has been markedly eroded over time.

In Mullane v Central Hanover Trust Co. (339 US 306)— decided nearly 40 years ago — the Supreme Court concluded that the rigid distinction between in personam and in rem proceedings could no longer be justified as a basis for denying property owners meaningful notice of proceedings affecting their property interests. (Id., at 312-313.) Instead, the court embraced a flexible standard: an "elementary and fundamental requirement of due process * * * is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Id., at 314.) The "means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” (Id., at 315.) Whether the proceeding involved person or property, due process required a balancing of the State’s interests and the individual’s interest in actually being informed of proceedings affecting rights or property. (Id., at 314-315.)

In Mullane itself, published notice of an action to settle the accounts of a common trust fund was held insufficient to inform the beneficiaries — whose names and addresses were known — of the pending action. (Id., at 320.) Notice by publication was inadequate because "under the circumstances it [was] not reasonably calculated to reach those who could easily be informed by other means at hand.” (Id., at 319.) Following Mullane, constructive notice of condemnation proceedings has been recognized as inadequate to notify a landowner whose identity was known to the City (Walker v City of Hutchinson,. 352 US 112); publication and posting were held insufficient to apprise a property owner of condemnation proceedings when his name and address were readily ascertainable from public records (Schroeder v City of New York, 371 US 208); and posting of a summons on an apartment door was found inadequate to provide notice in forcible entry and detainer actions (Greene v Lindsey, 456 US 444).

Such decisions marked a departure from the early justifications underlying the conclusion that published notice was due notice, and a recognition that the "caretaker” theory, the presumption that every landowner read every newspaper of general circulation, and the notion that only "the land itself’ was affected, had become increasingly unrealistic. Measured against these fictions supporting constructive notice, the simple act of mailing notice to a known property owner — actual notice — emerged from the succession of Supreme Court decisions as minimal "due process.” As succinctly stated in Schroeder v City of New York (371 US 208, 212-213, supra): "The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question.”

In Botens v Aronauer (32 NY2d 243, appeal dismissed 414 US 1059), this court addressed the question whether notice by publication was adequate in the case of a tax sale — where the State’s vital interest in collecting revenues remains a central concern — and we concluded that there was no requirement of actual notice either of a tax lien sale or of the redemption period; constructive notice sufficed. We distinguished Mullane on the ground that the property holder there had no reason to expect that its property interest was being affected, while in the case of a tax sale, the taxpayer had notice of its obligation to pay taxes and of the consequences flowing from nonpayment. Even in Botens (supra, at 249), however, we recognized the progression of the law from the time when "land ownership was much more parochial and there was a less mobile populace than now.” We invited the Legislature to "address itself to this problem [and reexamine the statutes in issue] with the view that owners of property be afforded notice reasonably calculated to better apprise them of the pendency of either a tax sale or of the final date of redemption.” (32 NY2d 243, 249-250, supra.) The Legislature indeed accepted the court’s invitation, and promptly amended the Real Property Tax Law to require personal service upon the property owner of both the notice of sale of the tax lien and the notice to redeem, a requirement which would be applicable as well when municipal laws contained no specific provision for notice (Real Property Tax Law § 1002 [4]; § 1014 [3]; § 2006).

In Mennonite Bd. of Missions v Adams (462 US 791), the Supreme Court thereafter specifically applied Mullane’s balancing test to real property tax proceedings. In Mennonite, an Indiana county sued a property owner for nonpayment of taxes, complying with statutory notice requirements by mailing notice to the owner, by publication, and by posting the notice of tax sale. The property was sold at the tax sale and, at the close of a two-year redemption period, the county sent the landowner an additional notice stating that title would pass to the tax-sale purchaser if the taxes were not paid. The landowner ignored the notice. Upon expiration of the redemption period, the county issued a tax deed to the tax-sale purchaser vesting all title in him free and clear of all liens or encumbrances — including the interest of a mortgagee who had never been given actual notice of the tax sale or pending title transfer. The Supreme Court concluded that the notice provided to the mortgagee was not "due process.”

A mortgagee, the Supreme Court reasoned, has a substantial property interest that is significantly affected by a tax sale and is therefore entitled to notice reasonably calculated to apprise it of the event. Notice by publication and posting is unlikely to reach those who, although they have an interest in the property, do not make unusual efforts to stay abreast of such notices. A county’s use of these indirect forms of notice is not reasonable where there are inexpensive and efficient direct alternatives — such as personal delivery or mailing. "Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” (Id., at 800.) This court subsequently applied Mennonite in Congregation Yetev Lev D’Satmar v County of Sullivan (59 NY2d 418), a case involving a tax lien sale. Although the facts there supported the adequacy of constructive notice, we recognized that actual notice must be given to "all parties readily ascertainable who have a substantial interest in the property.” (Id., at 425.)

What seems plain from this progression of the case law is that where the interest of a property owner will be substantially affected by an act of government, and where the owner’s name and address are known, due process requires that actual notice be given. To the extent that Botens holds that actual notice of tax sale proceedings need not be given a known property owner, it has already been implicitly overruled by Mennonite and Congregation Yetev Lev D’Satmar, and should not be followed.

Application of the Developed Concept of Due Notice to These Facts

In an effort to distinguish Mennonite, the court below and the dissent in this court point to several factual differences between the Indiana tax sale and the Nassau County tax lien sale. Of course there are factual differences. What is common to both the Indiana statute and the Nassau County Administrative Code, however, is the fact that the sales create immediate, substantial adverse consequences for the property holder. The Nassau County tax lien sale is the event that moves the Sword of Damocles directly over the head of a property owner. The tax lien sale commences enforcement proceedings that may terminate 24 months later in forfeiture upon the mere request of the tax lien purchaser, without any requirement or opportunity for a hearing or any court intervention. The tax lien sale is a condition precedent to the transfer of title.

Moreover, substantial interest, penalties and expenses accrue upon that sale. Beginning 18 months from the tax lien sale, for example, a property owner seeking to redeem property may have to pay not only the taxes and interest but also a penalty approximating 40% of the lien purchase price, and reimburse both the Town and the lien purchaser for their actual expenses. These costs cannot be shrugged off as insignificant consequences, particularly for persons such as petitioner McCann subsisting on Social Security payments and a weekend job delivering magazines, and particularly when measured against the negligible cost and burden that would be imposed on the County if it were required to mail a notice to her.

Our dissenting colleagues apparently do not dispute the statement of the law set forth in this opinion, but disagree that the consequences of the tax lien sale are substantial, and they therefore conclude that constructive notice to petitioners was good enough. We conclude that the tax lien sale, in the context of this Code, creates "momentous consequences” for the homeowner (123 AD2d 111, 126) and that — balanced against these consequences — requiring that a notice be mailed to a person whose name and address are known imposes a minimal burden on the County. Actual notice is therefore required.

Nor can the Nassau County statutory scheme withstand constitutional scrutiny because — unlike Mennonite, where there was no provision for actual notice at all — the Code requires mailing of the notice to redeem to the property owner three months before the deed is conveyed to the purchaser of the tax lien. We recognize that what is reasonable for purposes of notice is usually a legislative policy determination; however, whether legislative choice passes constitutional muster is a decision for the courts. It is significant here that the Nassau County legislators did not design a scheme providing for only three months to redeem. The mechanism designed by the legislators to provide what they deemed was adequate notice to property owners contemplated that before automatic forfeiture, there would be a 24-month redemption period. It is their failure to provide due process notice of the tax lien sale that has shrunk that period to a mere three months and defeated the legislative intention. We thus cannot agree with the court below that we should now redesign the legislative scheme by substituting three months for 24 as the redemption period. Moreover, notice which does not afford a realistic opportunity to produce the funds necessary to avoid forfeiture of the title or sell the encumbered property does not afford due process. The truncated three-month period would in any event be troubling as satisfying the due process notice requirement, particularly where very large surpluses are at stake.

To uphold a statutory scheme permitting substantial impairment of a known property owner’s title to her home without actual notice to her would ignore the clear import of Mennonite and signal a return to the fictions of landownership appropriate to an earlier time. The realities of our complex, mobile society are fundamentally inconsistent with a statutory scheme premised on constructive notice as the means of informing known property owners of events which hasten the ultimate forfeiture of their homes, with no opportunity for court intervention, when they can so easily and inexpensively be advised by letter.

Accordingly, in each case, the order of the Appellate Division should be reversed, with costs. The proceedings should be converted to declaratory judgment actions, the former real estate tax collection enforcement provisions of the Nassau County Administrative Code under which respondent Stone obtained Treasurer’s deeds should be declared unconstitutional, the deeds declared a nullity, and petitioners permitted to redeem their properties. Recognizing that our declaration could have broad, unsettling effect on the marketability of otherwise settled titles to property, we conclude that our decision in these cases is to have no general retroactive application and shall apply only to cases where tax titles are " 'still in the normal litigating process’ ” (see, Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 191, quoting Gager v White, 53 NY2d 475, 483).

Simons, J.

(dissenting). Under the provisions of the Nassau County Administrative Code (Code), property may not be sold by the County for nonpayment of taxes until expiration of a two-year redemption period. The Code also provides that property owners, and certain other interested parties, must receive actual notice at least three months before expiration of the redemption period that a deed will issue unless the taxes are paid. The majority holds such notice is inadequate; that the Code must provide actual notice to the property owner when the tax lien is sold, at the beginning of the two-year period. Accordingly, it holds that Nassau County has deprived these property owners of their property without due process of law under the Fourteenth Amendment to the United States Constitution. Because this holding is neither compelled by the United States Supreme Court’s decision in Mennonite Bd. of Missions v Adams (462 US 791), on which the majority relies, nor supported by our precedents, I dissent.

Since the majority has chosen to emphasize the impact of the Code provisions on these individual litigants it should be noted that neither has ever denied that they received their tax bills during the two years in question or claimed that they paid the taxes due and neither has suggested that they were unaware of the consequences of failing to do so. Indeed, petitioner McCann had some familiarity with tax proceedings because on three prior occasions she failed to pay her taxes, experienced the sale of tax liens on her premises and was forced to redeem the property before a deed issued. Moreover, there is evidence in the record which would indicate that she was sent actual notice of the tax lien sale in this case, the same notice which the majority says was required, and thus that she should not be entitled to relief even if the rule adopted by the majority is applied to her. Finally, even after petitioners received actual notice to redeem, more than four months elapsed before a deed was issued for the Rinaldo property and more than nine months elapsed before a deed was issued for the McCann property. Petitioners did nothing during that time to avoid forfeiture and waited several months more before instituting these proceedings.

Turning to the merits, I have no disagreement with the majority’s holding that Botens v Aronauer (32 NY2d 243, appeal dismissed 414 US 1059) has been implicitly overruled by Mennonite Bd. of Missions v Adams (462 US 791, supra) and Congregation Yetev Lev D’Satmar v County of Sullivan (59 NY2d 418). To the extent that Botens holds that a property owner need not receive actual notice before transfer of his property, it can no longer be followed. Neither Mennonite nor Congregation Yetev Lev D’Satmar, however, compels the conclusion that actual notice must be given to a property owner prior to the sale of a tax lien for the owners property. What Mennonite does hold is that a property owner must receive actual notice before his rights are "significantly affected” (id., at 798).

The question is then at what point were the property interests of these petitioners "significantly affected” by the County’s actions. Under the circumstances in the Mennonite case that occurred when the tax lien was sold. Therefore, the court required actual notice before the sale. These cases differ substantially and in my view the taxpayers’ property interest was not significantly affected until the period of redemption expired. Accordingly, constitutional due process required actual notice only before that date. Whether the notice was sufficient because sent only three months in advance of expiration is another question, one best answered by the Legislature absent clear abuse, but under the facts of these cases petitioners certainly have no basis to complain.

Analysis starts with the Mennonite case. That action was brought by a mortgagee of premises in default for unpaid taxes which was not notified of the tax proceedings, other than by publication, before expiration of the two-year redemption period. It did not receive the tax bills on the property, as did the petitioners in these cases, and it had no reason to presume that the owner was not paying the taxes on the real property because even after the tax lien was sold the property owner continued to make the mortgage payments. Two questions were before the Supreme Court: the first was whether the Indiana statutes conformed with due process insofar as they failed to afford mortgagees with actual notice prior to the sale of the tax lien. The second was whether the Indiana statutes were unconstitutional insofar as they failed to give a mortgagee notice prior to the expiration of the redemption period. The Supreme Court answered the first question, thus rendering the second question academic (see, 462 US, at 800, n 6, supra). For purposes of this litigation, however, it is important to explain why the Supreme Court decided as it did.

Under the Indiana’s statutory scheme some of the incidents of ownership are transferred at the time of the tax sale. Thus, the successful bidder is permitted to record the equivalent of a lis pendens (Indiana Code § 6-1.1-24-1), the statute refers to sale of the property rather than sale of a lien (Indiana Code § 6-1.1-24-9 [a]) and it specifies that the certificate of sale delivered to the successful bidder must contain a description of the property and the name of the "former owner” (Indiana Code § 6-1.1-24-9 [a] [2]; § 6-1.1-25-6). Moreover, under Indiana law, the Statute, of Limitations for actions contesting the tax proceedings runs from the date of the certificate of sale given immediately after the tax sale (Indiana Code § 6-1.1-24-9 [a]; § 6-1.1-24-11 [b]). Indeed, there appears to be authority that the purchaser, by acquiring the certificate of sale in an Indiana tax sale, is entitled to immediate possession of the premises and may commence proceedings to obtain it (Ethel v Batchelder, 90 Ind 520; Barton v McWhinney, 85 Ind 481).

The most significant factor in the Mennonite case, however, was that under the Indiana statutes before the court, tax liens were sold at public auction to the bidder willing to pay the highest price. Because the successful bid constituted a prior claim on the property, the consequence of a tax lien sale was the immediate subordination of the mortgagee’s interest and, if the bid price substantially exceeded the tax and penalties due, the sale might result in diminution or even extinguishment of the mortgagee’s interest (Indiana Code § 6-1.1-24-9 [a]; § 6-1.1-24-9 [b]; § 6-1.1-25-6 [a] [7]). Thus, the mortgagee’s security for its loan was immediately and drastically affected by the sale under the Indiana statute because redemption required not only the payment of taxes and penalties, but potentially of some additional sum paid by the successful bidder which, depending on the amount, might adversely affect the mortgagee’s security interest in the property. Thus, it is quite understandable that the Supreme Court found in Mennonite that the mortgagee’s rights were "significantly affected” by sale of the tax lien and required that mortgagees be afforded notice and the opportunity to protect their rights before tax lien sales took place.

The consequences of the sales of tax liens in these cases are quite different. The Nassau County Administrative Code, unlike the Indiana statute, makes clear that all incidents of ownership remain with the taxpayer until the redemption period expires and that a purchaser at a tax sale acquires no more than a lien for the delinquent taxes, penalties and interest. Thus, after a tax lien is sold in Nassau County title unquestionably remains with the owner until expiration of the redemption period, no lis pendens is filed against the property before or after the sale and the certificate of sale does not give the lien buyer any claim to ownership or possession (Nassau County Administrative Code § 5-52.0). Moreover, the Statute of Limitations does not commence to run until the tax deed, issued by the County Treasurer after the redemption rights have expired, has been recorded (Nassau County Administrative Code § 5-54.0 [b] [3]).

Most importantly, however, under the Nassau County Administrative Code the successful bid is measured by the lowest rate of interest the bidder is willing to receive for paying the delinquent taxes, not the highest price he is willing to pay. The lien for delinquent taxes may be repurchased and satisfied by payment of the taxes plus penalties and interest due to the County to the date of the tax lien sale. No greater amount is ever included in the tax lien sale price in Nassau County (Nassau County Administrative Code §§ 5-33.0, 5-35.0 [a] [2], [3]; § 5-36.0 [c]). Additional penalties, computed by the interest bid, are imposed after the lien is sold, however, to compensate the bidder for the use of his money during the redemption period (Code § 5-40.0). The owner may redeem the property by paying the accumulated taxes, interest and penalties, the costs of the sale and the interest penalty due the bidder (Code § 5.50).

In sum, the sale of the tax lien by Nassau County starts the time for redemption running, requires the taxpayer to reimburse the County for the costs of the tax lien sale and adds interest and penalties. The effect of the tax sale has little more effect on the owner’s interest than increasing the interest and penalties due because of the passage of time and adding a penalty in the form of interest to the successful bidder for the use of the bidder’s money to satisfy the taxes past due. These charges do not jeopardize the owner’s title or possession any more than adding interest for late payment of taxes 30 days after the payments are first due, except in amount, and no one would seriously contend actual notice must be given to the taxpayer before that is done. The lien purchaser does not acquire anything at the sale which prevents the owner, by his own act, from fully using and exploiting his property if only the taxes are paid. Under the Indiana statutory scheme before the court in Mennonite (supra), by contrast, the mortgagee might pay the taxes in full with interest and penalties, even though it was not required to, and still not recover its security interest in the property. Thus, the effect of a tax sale in Nassau County on an owner’s property rights are substantially different from the consequences the Indiana statutes imposed on the mortgagee which caused the Supreme Court to determine in Mennonite that the tax sale triggered the mortgagee’s due process right to notice.

Nevertheless, petitioners and the majority contend that title is significantly affected at the tax sale because the cost of redemption is increased after the tax lien is sold. They argue the mere cumulation of interest and penalties, legally imposed, is enough to significantly affect the taxpayer’s interest in his property for due process purposes. In response, it should be noted first that it is not clear that the issue is properly before us. Petitioners are not claiming that they failed to redeem their properties because of the increased sums that they had to pay as a result of the sale of the lien. They seek only to recover title to the property, even though they acknowledge they were afforded actual notice by certified mail more than three months prior to the date when their property interest could be extinguished. All that they lost because actual notice was given at a later, rather than an earlier, date was money in the form of increased tax penalties. Yet they cite to no authority which requires personal notice prior to an event which is followed by an increase in monetary penalties (contra, Township of Montville v Block 69, Lot 10, 74 NJ 1, 7-8, 376 A2d 909, 912 ["applicability of the Due Process Clause is not affected by the municipality’s sale of the property for unpaid taxes and issuance of a certificate to the purchaser”; actual notice need only be provided when the owner’s redemption period will expire]).

Moreover, the increased costs that the sale of the lien imposed on the taxpayers should have come as no surprise. Our decisions both before and after Mennonite (supra) have consistently adhered to the principle that an owner of real property is charged with knowledge of the statutory provisions affecting the control or disposition of his or her property (Sheehan v County of Suffolk, 67 NY2d 52, 58, cert denied sub nom. MacKechnie v County of Sullivan, 478 US 1006; Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423, supra; see also, United States v Locke, 471 US 84, 108; Texaco, Inc. v Short, 454 US 516, 531). When, as here, property owners are afforded both notice and an opportunity to be heard with respect to the assessment of their property and the imposition of taxes on it and actual notice prior to final expiration of the redemption period, individual notice of an increased interest and penalties is not required. Taxpayers are under an obligation to pay their taxes and they are presumed to know the consequences of nonpayment. While other historical justifications for sustaining the adequacy of notice by publication are no longer recognized the principle that a landowner, like any other citizen, is presumed to know the law retains its continued validity after Mennonite and Mullane (see, United States v Locke, supra, at 108, citing favorably North Laramie Land Co. v Hoffman, 268 US 276, 283).

In sum, it is the issuance of the deed to the lien purchaser which significantly affects the owner’s interest in his property under the Code and the Code requires that the owner receive actual notice of that future event. The sale of the tax lien is neither "the event that moves the Sword of Damocles directly over the head of a property owner”, nor is it the sole "condition precedent” to the transfer of title as the majority opinion suggests (majority opn, at 176). Rather, the actual condition precedent to the transfer of title is the filing by the lien purchaser of affidavits proving that he or she served the property owner and all other interested parties notifying them of the need to redeem the property within three months (Nassau County Administrative Code § 5-51.0 [e]; § 5-53.0 [4]). It is then that the provisions of the Code set in motion procedures which lead inexorably to the loss of title unless the property is redeemed and it is then that petitioners’ property interests were significantly affected (Mennonite Bd. of Missions v Adams, supra, at 798).

Finally, the majority suggest that the three-month notice prescribed by the Nassau County Administrative Code will not withstand constitutional analysis because the time period is too short.

The purpose of the notice, of course, is to give owners an opportunity to act, either by paying the delinquent taxes or selling the property subject to the tax lien, to protect their equity. What is reasonable for that purpose is usually a legislative policy determination not subject to overcall by the courts unless clearly erroneous. In reviewing the legislative determination, it must be noted that the period of redemption is two years, not three months. In no event may title pass before the two years has expired and notwithstanding the sale of the lien, the taxpayer may redeem his property at any time during the two years before title is transferred by satisfying the tax lien. Furthermore, before personal notice is made several things occur which bring home the fact of delinquency to the taxpayer. There is the knowledge of universal tax liability imputed to owners of real property (see, Sheehan v County of Suffolk, 67 NY2d 52, cert denied sub nom. MacKechnie v County of Sullivan, 478 US 1006, supra; Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, supra), annual tax bills are mailed to owners indicating nonpayment of past taxes, and the fact that delinquency is published by notice of the sales of tax liens in the newspaper. Moreover, the shorter time specified between notice and the expiration of the redemption period may be justified because the sums of money necessary for redemption under the Nassau County bidding scheme are relatively small.

Accordingly, I must dissent and vote to affirm the order of the Appellate Division.

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

In each case: Order reversed, with costs, proceeding converted to a declaratory judgment action and judgment granted in favor of petitioners in accordance with the opinion herein.

      . "[Prompted in part by the outcry caused by the extreme results” of the McCann case and other cases, as the dissenters below noted (123 AD2d 111, 119), the Code has been amended, effective November 17, 1986, substantially changing the provisions applicable to these appeals (Local Laws, 1986, No. 13 of County of Nassau). We do not consider the constitutionality of the new procedures.

      . Respondents urge us to avoid the constitutional issue by reading into the Code the notice provisions of the Real Property Tax Law (RPTL 1002)— which require mailed notice to owners of impending tax sales — and presuming that the statutory requirement was satisfied (see, e.g., Matter of Driscoll v Troy Hous. Auth., 6 NY2d 513). We agree with the court below (123 AD2d 111, 114, n 2), however, that since the Code contains its own specific provision for notice, the RPTL notice provision does not apply (see, RPTL 2006; Matter of Stevens Med. Arts Bldg. v City of Mount Vernon, 72 AD2d 177).
      The dissent (at 179) speaks of evidence in the record indicating that petitioner McCann was sent actual notice, in effect mooting the constitutional issue. Petitioner denied that she received notice. As the Appellate Division found on the facts, the County failed to establish that actual notice had been given to petitioner.

      . Respondent’s assertion that Mennonite can be applied only prospectively from June 1983, and not retroactively to these prior tax lien sales, is without basis. Mennonite did not establish new law, but rather carried forward a principle of fair notice made clear in Mullane; moreover, application of the rule to these sales will further, not undermine, its salutary purpose (see, Chevron Oil Co. v Huson, 404 US 97, 106-107). Even where a new principle has only prospective application, the party who has successfully challenged existing law may have the benefit of its reversal (see, e.g., Stovall v Denno, 388 US 293, 301).

       For example neither the "caretaker” theory (see, e.g., Huling v Kaw Val. Ry., 130 US 559, 563-564) nor the "in rem” justification (see, Ballard v Hunter, 204 US 241, 258) for holding that notice by publication is constitutionally valid retains validity after the Supreme Court’s decisions in International Shoe Co. v Washington (326 US 310) and Shaffer v Heitner (433 US 186). (See generally, Mennonite Bd. of Missions v Adams, 462 US 791, 796-797, n 3.)


author: Titone, J. Bellacosa, J.

text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v Department of Environmental Conservation et al., Appellants.
    Argued November 13, 1987;
    decided January 7, 1988

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Ezra I. Bialik, O. Peter Sherwood, Peter H. Schiff and Peter G. Crary of counsel), for appellants.
    I. The Department of Environmental Conservation (DEC) had statutory authority to amend its part 610 regulations to include petroleum storage and handling requirements for major facilities. II. DEC’s statutory authority to amend its part 610 regulations for major facilities was not curtailed by the 1983 Act. (Matter of Wilson v Board of Educ., 39 AD2d 965; Hennessy v Walker, 279 NY 94; Rector, Church Wardens & Vestrymen v Committee to Preserve St. Bartholomew’s Church, 84 AD2d 309; People v Newman, 32 NY2d 379, 414 US 1163; Matter of Johnson v Joy, 48 NY2d 689; Matter of Bernstein v Toia, 43 NY2d 437.) III. In any event, the remand should have been limited to part 610 of the regulations.

      Brent L. Brandenburg and Sara Schoenwetter for respondent.
    I. The department’s attempts to apply its proposed new petroleum bulk storage regulations to major facilities cannot be reconciled with either the 1977 or 1983 legislation. (Servomation Corp. v State Tax Commn., 51 NY2d 608; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Matter of Jones v Berman, 37 NY2d 42; Matter of Bates v Toia, 45 NY2d 460; Trade Commn. v Bunte Bros., 312 US 349; New York State Bankers Assn. v Albright, 38 NY2d 430.) II. In addition to excluding major facilities, the 1983 legislation specified that existing nonmajor facilities were to be "grandfathered”. III. The decision of the court below is entirely consistent with well-accepted principles of statutory construction. (Matter of Board of Educ. v Allen, 6 NY2d 127; People v Newman, 32 NY2d 379; East End Trust Co. v Otten, 255 NY 283; Hastings v Byllesby & Co., 293 NY 413.) IV. The department’s repeated, unsuccessful attempts before the Legislature to amend the 1977 and 1983 legislation are compelling evidence of both DEC’S construction of its existing authority and the Legislature’s intent that major facilities and existing nonmajor facilities be excluded from code coverage. (New York State Bankers Assn. v Albright, 38 NY2d 430; D’Angelo v Cole, 67 NY2d 65; Matter of Kleefeld, 55 NY2d 253; Parochial Bus Sys. v Board of Educ., 60 NY2d 539; Bright Homes v Wright, 8 NY2d 157.)

      Davison W. Grant for Central Hudson Gas & Electric Corporation and others, amici curiae.

    I. The exclusion of major facilities licensed under article 12 and existing nonmajor facilities from coverage under the code promulgated pursuant to the 1983 Act was the product of legislative compromise. (Matter of Jones v Berman, 37 NY2d 42; Matter of Bates v Toia, 45 NY2d 460.) II. Application of the bulk storage code to major facilities is superfluous in light of the Federal SPCC program and the EPA’s underground storage tank regulations. III. The excessive and unnecessary costs required to comply with the bulk storage code, if sustained, may result in facility closure and transfer of operations out of State. IV. The department’s unsuccessful attempts to obtain additional statutory authority from the Legislature contradict its assertions of present authority and confirm the legislative intent in both article 12 and the 1983 Act. (New York State Bankers Assn. v Albright, 38 NY2d 430.)
   OPINION OF THE COURT

Titone, J.

The issue presented on this appeal is whether the broad power of the Department of Environmental Conservation (DEC) and the Commissioner of Environmental Conservation (Commissioner) to regulate the bulk storage of petroleum was superseded by the Oil Spill Prevention, Control and Compensation Act of 1977 and the 1983 Control of the Bulk Storage of Petroleum Act. We hold that the 1977 and 1983 Acts did not revoke DEC’s otherwise broad power to regulate the bulk storage of petroleum. Consequently, DEC acted within its statutory authority in promulgating a new bulk petroleum storage code.

In an effort to protect the environment from oil pollution, the Legislature enacted the Oil Spill Prevention, Control and Compensation Act of 1977 (L 1977, ch 845, § 2, codified at Navigation Law § 170 et seq) (1977 Act) aimed at controlling the storage and transfer of petroleum. The 1977 Act expressly applied to only major petroleum bulk storage facilities and empowered DEC to promulgate regulations governing cleanup and removal of impermissible petroleum discharges. The Act also required major facilities to comply with the EPA’s Federal Spill Prevention, Control and Countermeasure Plans (SPCC Plans) (see, Navigation Law § 176 [4]; 33 USC § 1251 et seq.; 40 CFR part 112; 6 NYCRR 610.4 [a] [4] [i]). Pursuant to the SPCC Plans, major facility owners and operators must develop plans for the prevention and control of spills and leaks that are specifically tailored to the particular facility as well as detailed regulations governing the cleanup and removal of petroleum pollution. In 1978, DEC promulgated regulations pursuant to the 1977 Act that required major facilities to comply with Federal standards in order to receive an operating license (see, Navigation Law §§ 174, 176; 6 NYCRR part 610).

The Legislature subsequently recognized that a serious regulatory gap existed, since smaller storage facilities, a significant source of petroleum pollution, were not subject to any regulation. In response to this problem, the 1983 Control of the Bulk Storage of Petroleum Act (L 1983, ch 613, codified at ECL 17-1001 et seq.) (1983 Act) was passed. The 1983 Act applied only to new or substantially modified nonmajor facilities. It directed DEC to promulgate a State petroleum bulk storage code aimed at the prevention of petroleum discharge as well as the containment, cleanup and removal of petroleum pollution (see, ECL 17-1001, 17-1005, 17-1007, 17-1009, 17-1015). However, the 1983 Act expressly exempted major facilities and preexisting nonmajor facilities from the requirements of the new bulk storage code.

In 1984, DEC promulgated a petroleum bulk storage code (the Code) that required petroleum storage facilities to meet certain State-wide minimum standards and addressed leak detection, corrective action, registration and access to records and facilities. Most importantly, despite the specific exemptions contained in the 1983 Act, the Code applied to preexisting nonmajor facilities, as well as those that were new or substantially modified (see, 6 NYCRR parts 612-614). Further, DEC also amended the regulations adopted pursuant to the 1977 Act (6 NYCRR part 610) to require all major facilities to comply with the Code, even though these facilities were already subject to Federal SPCC Plans under the 1977 Act (see, 6 NYCRR 610.4 [a] [4] [vi]; 610.5 [a] [4]; [d] [4], [7]). DEC relied on its general regulatory power over major facilities (see, Navigation Law § 191) and its general regulatory power to prevent liquid pollution (see, ECL 3-0301 [1] [m]; 3-0303 [3]) as its authority for subjecting these facilities, exempt under the 1983 Act, to coverage under the Code. Respondent, Commissioner of the Department of Environmental Conservation, approved the Code on November 27, 1985.

Petitioner Consolidated Edison Company of New York, Inc. (Con Edison) is a utility company engaged in the production, distribution and sale of electric energy and steam to over 2,700,000 customers in New York City and Westchester County. It maintains both major and nonmajor petroleum bulk storage facilities in the State in order to fuel its electric generating and steam sendout facilities. Con Edison commenced this article 78 proceeding seeking to annul those portions of the Code that required major facilities and nonmajor facilities that are not new or substantially modified to comply with the new regulations. The Supreme Court granted the petition, concluding that the 1977 and 1983 Acts superseded any other authority DEC may have had to regulate those major facilities subject to the 1977 Act and those non-major, preexisting facilities that were exempt from coverage under the 1983 Act. The Appellate Division affirmed, without opinion. We now reverse.

An administrative agency possesses all the powers expressly delegated to it by the Legislature and such a delegation of authority will be upheld so long as the Legislature has "limited] the field in which that discretion is to operate and provides standards to govern its exercise” (Matter of Levine v Whalen, 39 NY2d 510, 515; accord, Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89, 92; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164, 168-169). However, it is not always necessary that the Legislature provide precise guidelines to an agency charged with carrying out the policies embodied in a legislative delegation of power. In certain technical areas, where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient if the Legislature confers broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details (Matter of City of Utica, supra, at 169). The Legislature need only furnish an agency standards or guides "in so detailed a fashion as is reasonably practicable in the light of the complexities of the particular area to be regulated, since necessity fixes a point beyond which it is unreasonable and impracticable to compel the Legislature to prescribe detailed rules” (Matter of Levine v Whalen, supra, at 515).

There are limits, of course, on what an agency may do even when it operates under a valid grant of authority from the Legislature. As we recently held in Matter of Boreali v Axelrod (71 NY2d 1, 6), "the scope of [an agency’s] authority under its enabling statute must be deemed limited by its role as an administrative, rather than a legislative, body.” In Boreali we held that, under the separation of powers doctrine, the Public Health Council went beyond its lawfully delegated authority when it promulgated comprehensive regulations governing tobacco smoking in areas open to the public. We determined that the Council had usurped the role of the Legislature when, rather than employing its public health expertise in making technical determinations so as to implement legislative policies, the Council engaged in a balancing of political, social and economic factors and drew up a "code embodying its own assessment of what public policy ought to be” (supra, at 9).

However, this case poses an entirely different question. The issue before us is not whether DEC and the Commissioner have strayed from the administrative into the legislative field. Indeed, it appears that the regulations at issue are well within the traditional agency role of applying technical expertise to implement legislative goals in situations too complex and detailed to be dealt with individually by the Legislature. Our concern is not with the nature of DEC’s actions as legislative or administrative, but whether the Legislature, by the 1977 and 1983 Acts, intended to limit its previous grant of broad regulatory powers to DEC so as to leave DEC without authority to promulgate the petroleum storage regulations now at issue.

The Environmental Conservation Law was enacted to protect the quality of our environment by controlling "water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state” (ECL 1-0101 [1]; see also, ECL 17-0101 [public policy of the State is "to maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof’]). Consistent with this declaration of legislative policy, ECL 3-0301 (1) (m) empowered DEC and the Commissioner to "[prevent pollution through the regulation of the storage, handling and transport of solids, liquids and gases which may cause or contribute to pollution”. A similar broad grant of authority is found in ECL 17-0303 (2), which provides that DEC "shall have administrative jurisdiction to abate and prevent the pollution of’ State waters. More specifically, ECL 17-0303 (3) permits DEC to: "make, amend and repeal rules and regulations for the storage of liquids likely to pollute the waters of the state including, but not limited to, standards for the construction, installation, maintenance, protection and diking of tanks used to store any such liquids and their associated structures, piping, valves, fittings, fixtures and outlets, in conjunction with the promulgation of which, the commissioner shall consider codes and practices of industries concerned with the handling and storage of such liquids and the time required for persons engaged in such industries to conform with such rules and regulations.” These statutes empower DEC to regiilate the storage of petroleum and other liquids, regardless of the type of facility involved.

These are unquestionably legitimate goals of the State and the Legislature has set forth the power of DEC with sufficient specificity, given the complexities involved in preventing and abating water pollution (Matter of City of Utica v Water Pollution Control Bd., 5 NY2d, supra, at 170-171). Since it is undisputed that petroleum is a liquid that is likely to pollute State waters, DEC was acting within the permissible ambit of its delegated authority under the Environmental Conservation Law in promulgating regulations governing the bulk storage of petroleum in a wide range of facilities, unless that power had been revoked by the 1977 and 1983 Acts.

As we noted in Matter of Boreali v Axelrod (supra, at 14-15), the mere fact that the Legislature has enacted specific legislation in a particular field does not necessarily lead to the conclusion that broader agency regulation of the same field is foreclosed. The key question in all cases is what did the Legislature intend?

There is nothing contained in the 1977 or 1983 Acts that evinces a legislative intent to narrow DEC’s broad grant of authority to promulgate regulations that will prevent petroleum pollution. In addition, the 1977 Act, the 1983 Act and the Code "have a common underlying policy objective”— namely, preventing environmental pollution caused by the discharge of petroleum. Indeed, the 1977 Act is actually a source of DEC’s regulatory authority over major facilities.

Among the goals of the 1977 Act was the control of petroleum storage within the State (Navigation Law § 170) in order "to ensure a clean environment * * * by preventing the unregulated discharge of petroleum * * * by authorizing [DEC] to respond quickly to such discharges and effect prompt cleanup and removal” (Navigation Law § 171). Con Edison construes this enabling legislation as limiting DEC’s regulatory power over major facilities to the cleanup, containment and removal of petroleum pollution only and not to the storage or prevention phases of bulk petroleum storage. However, we conclude that such a restrictive reading is unwarranted in light of other provisions contained in the 1977 Act.

The 1977 Act also provides that: "As a condition precedent to the issuance or renewal of a license [DEC] shall require satisfactory evidence that the applicant has implemented or is in the process of implementing state and federal plans and regulations for control of discharges of petroleum, and the containment and removal thereof when a discharge occurs.” (Navigation Law § 174 [3] [emphasis added].) This provision expressly requires that an owner or operator must satisfy State, as well as Federal, standards regarding both the control and prevention of petroleum pollution and the cleanup of impermissible discharges. The reasonable implication of this provision is that the Legislature intended to leave the door open for future State regulation over petroleum pollution prevention, not only pollution cleanup, as Con Edison posits.

Further, under the 1977 Act, the Legislature conferred upon the Commissioner the power to adopt such regulations as he deems "necessary to accomplish the purposes” of the Act (Navigation Law § 191). The stated policy goals of the 1977 Act — to ensure a clean environment by preventing unregulated petroleum discharges — could hardly be accomplished if the agency charged with fulfilling these goals was without power to regulate the prevention of petroleum pollution. Such a regulatory authority would appear to be a power "required by necessary implication” (Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89, 92, supra; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471). Thus, we conclude that the Commissioner did have the power to regulate major facilities. This power is derived from the 1977 Act itself and from DEC’s general grants of authority to regulate liquid pollution (ECL 3-0301 [1] [m]; 17-0303 [3]) which were neither expressly nor impliedly repealed by the 1977 Act (see, Alweis v Evans, 69 NY2d 199).

Con Edison also contends that since the 1983 Act expressly exempted major facilities and preexisting nonmajor facilities from coverage under the Code, it effectively repealed DEC’s broad power to regulate the storage of bulk petroleum. However, there was no express modification of DEC’S broad regulatory powers contained in the Environmental Conservation Law or the 1977 Act. Although the 1983 Act provided that the Code "shall not include” major facilities covered by the 1977 Act or preexisting nonmajor facilities (ECL 17-1001, 17-1003 [1]), it did not expressly repeal or modify DEC’s power to regulate. Indeed, such statutory language is entirely consistent with the position taken by DEC and the Commissioner that the Legislature sought to direct the agency to address a specific problem area that had not previously been regulated, rather than to effect a modification or repeal of DEC’s power. This view is further supported by the legislative history, which indicates that a serious leakage problem in smaller storage facilities was the main justification behind the 1983 Act (see, L 1983, ch 613, Bill Jacket, Legis Mem, at 0009).

Repeal or modification of legislation by implication is not favored in the law. Absent an express manifestation of intent by the Legislature — either in the statute or the legislative history — the courts should not presume that the Legislature has modified an earlier statutory grant of power to an agency (Alweis v Evans, 69 NY2d 199, 204, supra; People v Newman, 32 NY2d 379, 389-390, cert denied 414 US 1163). Generally, a statute is not deemed impliedly modified by a later enactment " 'unless the two are in such conflict that both cannot be given effect. If by any fair construction, a reasonable field of operation can be found for [both] statutes, that construction should be adopted’ ” (People v Newman, 32 NY2d 379, 390, cert denied 414 US 1163, supra; see also, Alweis v Evans, supra, at 204; Ball v State of New York, 41 NY2d 617, 622; Matter of Board of Educ. v Allen, 6 NY2d 127, 141-142; Cimo v State of New York, 306 NY 143, 148-149; Peterson v Martino, 210 NY 412, 418; McKinney’s Cons Laws of NY, Book 1, Statutes § 391). "These principles apply with particular force to statutes relating to the same subject matter, which must be read together and applied harmoniously and consistently” (Alweis v Evans, supra, at 204; Matter of Guardian Life Ins. Co. v Chapman, 302 NY 226, 231).

The statutes at issue on this appeal do not conflict in any way. The 1983 Act confers on DEC the power to promulgate regulations governing new and substantially modified nonmajor facilities. The 1977 Act empowers DEC to regulate major facilities in the State. ECL 3-0301 (1) (m) and 17-0303 (3) permit the agency to regulate in those areas of bulk petroleum storage where the other legislation has left a gap. All of the applicable statutory provisions can operate in harmony without interfering or conflicting with each other in any way. Under such circumstances, it cannot be said that the 1983 Act impliedly repealed DEC’s broad regulatory authority over petroleum storage. Since DEC’s power has not been shown to be either expressly or impliedly repealed, we find that DISC and the Commissioner were acting within their statutory authority in promulgating the Code.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Bellacosa, J.

(concurring). I concur only in the result. Proper statutory construction and appropriate administrative implementation of legislatively delegated authority to the Department of Environmental Conservation (DEC) support reversal. I cannot ascribe, however, to the effort in the majority opinion to distinguish Boreali v Axelrod (71 NY2d 1).

An analytical and precedential inconsistency with Boreali emerges from the assertion in this case that the broad power delegated to "experts” to regulate the bulk storage of petroleum is valid and survives two foursquare legislative constricting amendments. Moreover, the asserted distinction that DEC possesses expertise in the oil spill/fuel storage area but that the Public Health Council (PHC) lacked parallel public health expertise concerning the health and life threat from smoking is at the very least questionable.

Nor can Boreali be so easily sidestepped on the ground that there the delegated regulatory authority for the PHC to protect the public health was held to have been overbroadly exercised as contrasted to here where a similarly broad grant of regulatory authority to DEC is held not to have been narrowed by specific subsequent legislation. In Boreali, the analogously delegated regulatory power, which had never been narrowed or preempted during its 75-year history and had additionally enjoyed the universal approbation of this court, was found overbroadly exercised and violative of the separation of powers doctrine, the key distinction emphasized by the majority. Of course, the separation doctrine is not raised or directly involved in the instant case, but that facile categorical distinction is not decisive.

The result in the instant case runs counter to the multipronged rationale of Boreali. Ironically, this court used failed legislative efforts to effect a smoking ban as a decisive weight in countermanding an existing statute in Boreali. Conversely in this case, two direct and successful legislative amendments are construed, not without some difficulty, to maintain the subject regulations. In sum, the majority differentiates the two cases as resting on the intent of the Legislature.

I believe, however, that the court sows confusion when it reaches sharply opposing results in proximately decided cases, in one of which failed legislative efforts are decisive and in the other of which relevant enactments are swept aside. While the desire to avoid Boreali simply on separation of powers versus statutory construction grounds may be understandable, such a neat categorization fails to come to grips with the interwoven analytical thrust of Boreali. Because problems concerning the delegation of administrative law authority will persist, I concur in the result only.

Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur with Judge Titone; Judge Bellacosa concurs in result in a separate opinion; Judge Hancock, Jr., taking no part.

Order reversed, etc.

      . Major petroleum bulk storage facilities are defined as "[fjacilities with total combined above-ground or buried storage capacity of’ at least 400,000 gallons (Navigation Law § 172 [11]).

      . Under the 1983 Act, a nonmajor facility is defined as one in which over 1,100 gallons of petroleum are stored at the same site, but expressly excludes major facilities licensed under the 1977 Act — i.e., those facilities that store 400,000 or more gallons of petroleum (ECL 17-1003 [1]).

      . We cannot agree with the concurrence that in Boreali the court reached a "sharply opposing” result. Here, the Legislature delegated authority to DEC to abate and prevent water pollution and set out guidelines for the agency as to how that might be accomplished, including particularly guidelines with respect to regulations "for the storage of liquids likely to pollute the waters of the state” (ECL 17-0303 [3]). By contrast, in Boreali there was no similar legislation authorizing the Public Health Council to regulate smoking in public places. The Public Health Council was therefore left to make policy choices which are appropriately for the Legislature.

      . To support its position that the Legislature intended to modify DEC’s power, Con Edison points to a November 27, 1985 letter from Senator John R. Dunne, the Senate sponsor of the 1983 Act, to DEC, which stated that "[i]t was not the intent of the Legislature that the Code regulate facilities already covered under” the 1977 Act. This letter was prepared some two years after the 1983 Act was passed and such postenactment history, even by a bill’s sponsor, is not a reliable indication of what the legislative body as a whole intended (Zuber v Allen, 396 US 168, 186; Duplex Co. v Deering, 254 US 443, 474; People v Newman, 32 NY2d 379, 389, n 7, cert denied 414 US 1163; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60, 67).