author: Jones, J.

text:
    In the Matter of the Town of Arietta et al., Respondents, v State Board of Equalization and Assessment et al., Appellants. (And 10 Other Proceedings.)
    Argued May 3, 1982;
    decided June 17, 1982

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Vernon Stuart and Shirley Adelson Siegel of counsel), for appellants.
    I. A municipality may not challenge by way of a CPLR article 78 proceeding the method of computation of a transition assessment by the State Board of Equalization and Assessment under section 545 of the Real Property Tax Law. (City of Buffalo v State Bd. of Equalization & Assessment, 26 AD2d 213; City of Albany v McMorran, 16 AD2d 1021; Matter of Neddo v Schrade, 270 NY 97; Matter of Conklin v Town Bd. of Town of Warwick, 59 AD2d 532, 43 NY2d 642; City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960; Matter of Town of Arietta v State Bd. of Equalization & Assessment, 37 AD2d 431.) II. In any event, it was error to grant petitioners summary judgment; petitioners’ claim of entitlement the highest effective assessment of State-owned lands, rather than the assessment at the 1960 “freeze” date, is a plain misreading of the statute and legislative history.

      Earle C. Bastow and Francis C. Steates for respondents.
    I. The relief sought in the 1968 proceeding was not the review of a transition assessment but the judicial interpretation of the statute (L 1968, ch 802) mandating respondent-appellant, State Board of Equalization, to establish total effective assessments of State-owned land on the 1968 assessment rolls of petitioning towns in such amount as would equal the total effective amounts of State-owned lands on the assessment rolls of said towns completed in the year 1967. (Barrencotto v Cocker Saw Co., 266 NY 139; Farrington v Pinckney, 1 NY2d 74; City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960; Consolidated Edison Co. of N. Y. v State Bd. of Equalization & Assessment, 98 Misc 2d 491.) II. The provision in subdivision 4 of section 545 of the Real Property Tax Law that transition assessments “shall be treated for all purposes as taxable assessed valuation on such [assessment] roll” has no relevancy to the issues presented herein. (Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Cunningham v Cassidy, 17 NY 276; City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960.) III. The court below properly granted petitioners summary judgment. (Matter of Morris v County Bd. of Assessors of Nassau County, 35 NY2d 624; Matter of Howard v Wyman, 28 NY2d 434; Matter of Lockport Union-Sun & Journal v Preisch, 8 NY2d 54.)
   OPINION OF THE COURT

Jones, J.

A CPLR article 78 proceeding is the appropriate procedure by which affected tax districts may obtain judicial review of the establishment by the State Board of Equalization of transition assessments under section 545 of the Real Property Tax Law. In this proceeding it was not error to grant summary judgment to the petitioning towns directing the State board to establish transition assessments with respect to the 1968 assessment rolls in such amounts as will provide them with total effective assessments of State-owned lands in amounts equaling the corresponding total effective assessments on their respective assessment rolls for the year 1967.

The Towns of Arietta, Benson and Lake Pleasant in Hamilton County and their taxpaying supervisors commenced 11 article 78 proceedings, one for each of the years 1968 through 1978, to review annual determinations made by the New York State Board of Equalization and Assessment as to the amounts of transition assessments of State-owned forest lands. The State board moved under CPLR 7804 (subd [f]) in each proceeding to dismiss the petition on the ground that as a matter of law it failed to state facts sufficient to entitle petitioners to the relief sought. The towns and their supervisors cross-moved in the 1968 proceeding for summary judgment.

Special Term denied the cross motion for summary judgment in the 1968 proceeding and granted the State board’s motion to dismiss the petitions in each of the 11 proceedings. On appeal the Appellate Division reversed in the 1968 proceeding, reinstated the petition, granted the towns’ cross motion for summary judgment, and remitted the matter to Supreme Court for further proceedings not inconsistent with its opinion (80 AD2d 956). In each of the other 10 proceedings, the Appellate Division reversed and reinstated the petition; summary judgment was not granted in any of these proceedings inasmuch as no motion had been made for such relief. The State board has now appealed as of right in the 1968 proceeding. We affirm.

The controversy between the parties relates to the determination by the State board of transition assessments of forest lands owned by the State. Such lands located within the forest preserves, as are those here in question, are subject to local real property taxation under section 532 of the Real Property Tax Law. Assessments with respect to such properties are first made by the local assessors but are then subject to the approval of the State board. In anticipation of the completion and application of a comprehensive reappraisal by the State board, section 545 was added to the Real Property Tax Law in 1960 to provide for “transition assessments”, designed to protect affected tax districts against substantial reductions in total assessments of State-owned lands within the district. A transition assessment was required to be established in the first year in which there was a reduction in assessment on taxable State lands which would prevent any loss of taxable assessed valuation on the assessment roll. The addition of the transition assessment to the initial, board-approved regular assessments would result in total effective assessment of State-owned lands equal to the corresponding assessments on the roll of the preceding year. Originally these transition assessments were scheduled to be tapered off at the rate of 2% of the total taxable assessed valuation for each year after the first year beginning with the year 1962. Questions arose, however, with respect to the use by the State board of a new computerized formula, and legislation was enacted in 1962 prohibiting the State board from reducing the transition assessments in 1962 by requiring it to treat 1962 rather than 1961 as the first year of reduction. Thereafter, similar annual enactments deferred the tapering of transition assessments through the year 1972.

There are substantial State-owned lands within the Towns of Arietta, Benson and Lake Pleasant which have been subject to taxation under section 532, the regular local assessments of the individual parcels being subject to approval by the State board. In 1961 the State board did not approve the assessments made by the local assessors as it had in previous years, but instead approved assessments in substantially smaller amounts in most instances, thereby activating the statutory provisions for transition assessments.

In their 1968 proceeding the towns asserted that after adhering to the legislative scheme for several years, the State board approved transition assessments for 1968 in amounts less than those prescribed in section 545, in consequence of which each of the towns suffered a loss of tax revenues and a lowering of tax and debt limits. An order was sought directing the State board to establish transition assessments in accordance with the statutory prescription.

A similar proceeding was thereafter commenced by one or more of four towns in Hamilton County, with their respective taxpaying supervisors, as to each of the years 1969 through 1978, in which relief in the same form was sought. Pursuant to stipulation these proceedings with respect to subsequent years have been held pending the outcome of this 1968 proceeding.

Section 545 as applicable here provides in pertinent part: “1. Whenever the state or an agency of the state acquires real property which becomes exempt as a result of such acquisition and which constitutes two per cent or more of the total taxable assessed valuation of the latest preceding assessment roll or there is a reduction in assessments on taxable state lands, the state board shall establish a ‘transition assessment’ which will in effect prevent any loss of taxable assessed valuation on the assessment roll for the first year affected by such occurrence or occurrences. For each succeeding year, the state board shall establish a transition assessment which will in effect limit to two per cent of the total taxable assessed valuation on the latest preceding assessment roll the loss in taxable assessed valuation on such roll as a result of such occurrence or occurrences, and (i) further acquisitions by the state or an agency of the state, or (ii) further reductions in assessments on taxable state lands, or (iii) both (i) and (ii).”

Two principal issues are tendered for resolution on the appeal in our court. The first, a procedural question, is whether the towns may maintain a CPLR article 78 proceeding to challenge the method of calculation of transition assessments by the State board under section 545. The second, a substantive question, is whether, assuming the availability of an article 78 proceeding, the transition assessments here were correctly calculated.

We conclude that a proceeding instituted under CPLR article 78 is the appropriate vehicle to obtain judicial review of the performance by the State board of the duties imposed on it by the Legislature under section 545. At the outset we observe that, although placed in the statutory setting of assessment procedures, in function and objective the legislatively created transition assessment is in essence, as the title of section 545 manifests, a form of State aid to tax districts whose assessment rolls contain forest lands owned by the State. That the statute prescribes that transition assessments “shall be, and shall be treated for all purposes as, taxable assessed valuation on such roll” (§ 545, subd 4), does not alter their essential character but serves to provide the means by which the State aid plan is to be implemented and State aid to be distributed to the tax districts entitled thereto. The establishment of transition assessments involves no judgment as to the valuation of particular parcels of real property — the normal grist of the customary assessment process; rather it is related directly to the total municipal tax base and is designed to sustain and cushion the loss of tax revenues in the face of reduction of assessments of individual parcels by the State board. The legislative pattern in the enactment of section 545 and of the annual deferrals of the 2% tapering-off provision confirms that the legislative objective was the assurance of financial assistance, not the introduction of a supplemental procedure for assessment of individual properties.

Responsibility for the administration and execution of this State aid program was vested in the State board. No component of judgment or administrative discretion is involved. The critical issue in the administration of the plan, as it turns out, is the interpretation of the statute; when that issue is resolved it remains only for the State board to perform ministerial acts, the making of arithmetic reckonings. Article 78 proceedings are the familiar procedural means by which judicial scrutiny may be had of the performance by administrative agencies of legislatively imposed duties (see 8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.02). The present case is no exception.

Coming then to the issue of substantive law presented, we agree with respondents towns and their supervisors, as did the Appellate Division, that the reckoning of transition assessments for 1968, the year here in question, should have been based on the year 1967, 1968 being the first year of a reduction. The deferral or “freeze” of the initial 2% tapering-off provisions of section 545 was first enacted in 1962 (L 1962, ch 269, § 3) and provided that where a transition assessment (for a first year of reduction) had been established for a 1961 assessment roll, transition assessments for subsequent years were to be established as if 1962 were the first year of reduction (i.e., there would be no 2% tapering in 1962). Subsequent annual enactments, cast in mandatory form, similarly deferred the contemplated tapering off through 1972 and provided that each of the subsequent benefited years was to be considered the first year of reduction. The transition assessments with respect to the 1968 assessment rolls should, therefore, be established in such amounts as will provide total effective assessments of State-owned lands for that year equaling the corresponding total effective assessments for the year 1967.

The only issues presented being issues of law and not of fact, it was not error for the Appellate Division to grant petitioners’ cross motion for summary judgment in this 1968 proceeding.

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

Chief Judge Cooke and Judges Jasen, Gabriele Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . The State board moved for leave to appeal in all 11 proceedings. The motion was denied as to the 1968 proceeding on the ground that an appeal lay as of right and dismissed in the other 10 proceedings on the ground that the orders sought to be appealed from were nonfinal (54 NY2d 604, 786). It is also noted that an order of Supreme Court granting a prior motion by the State board to dismiss the 1968 proceeding had been reversed at the Appellate Division and the proceeding remanded to Supreme Court (37 AD2d 431, app dsmd 30 NY2d 771).

      . We agree with the Appellate Division that our decision in City of Mount Vernon v State Bd. of Equalization & Assessment (44 NY2d 9601 does not call for a different result. That case presented questions in the mainstream of the normal process for the regular assessment of individual properties and as such fell within the proscriptive scope of section 700 of the Real Property Tax Law.

      . (L 1962, ch 269; L 1963, ch 965; L 1964, ch 739; L 1965, ch 1068; L 1966, ch 277; L 1967, ch 723; L 1968, ch 802; L 1969, ch 1148; L-1970, ch 990; L1971, ch 1111; L1972, ch 909.) The relevant amendment with respect to this 1968 proceeding, which is illustrative, is chapter 802 of the Laws of 1968:
      “Section 1. Section three of chapter two hundred sixty-nine of the laws of nineteen hundred sixty-two, entitled ‘An act to amend the real property tax law, in relation to providing state aid to tax districts on account of loss in taxable assessed valuation of state lands,’ as last amended by chapter seven hundred twenty-three of the laws of nineteen hundred sixty-seven, is hereby amended to read as follows:
      “§ 3. Notwithstanding any other provision of this act, where a transition assessment, for the first year of a reduction in assessment on state lands, has been established for a town assessment roll completed in nineteen hundred sixty-one or for a village assessment roll completed in nineteen hundred sixty-two, transition assessments for the next six seven subsequent assessment rolls of such town or village shall be established as if each of such next six seven subsequent assessment rolls were the first year of such reduction and transition assessments shall hereafter be established (i) for towns as if the assessment roll completed in nineteen hundred sixty-seven sixty-eight were the first year of such reduction; and (ii) for villages as if the assessment roll completed in nineteen hundred sixty-eight sixty-nine were the first year of such reduction. All terms used in this section and section two of this act shall have the same meanings as used in section five hundred forty-five of the real property tax law, as added by this act.
      “§ 2. This act shall take effect immediately.”
      (Changes or additions in text are indicated by underline deletions by strikeouts.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Willard H. Harris, Jr., as a Judge of the City Court, City of Lockport, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued June 7, 1982;
    decided June 17, 1982
    POINTS OF COUNSEL

      Robert S. Roberson for petitioner.
    I. The Court of Appeals has broad power when reviewing matters involving alleged judicial misconduct, and, therefore, has jurisdiction to rule on all matters contained herein. (Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386; Matter of

      Dixon v State Comm. on Judicial Conduct, 47 NY2d 523; Matter of Lonschein, 50 NY2d 569; Matter of Rogers v State Comm. on Judicial Conduct, 51 NY2d 224; Matter of Shilling, 51 NY2d 397.) II. The commission violated the due process rights of petitioner herein. (Withrow v Larkin, 421 US 35; Matter of Jones, 47 NY2d [mmm]; Matter of Cooley, 53 NY2d 64.) III. The Lockport City Court and Lockport Police Court have always been separate courts, and remain separate courts to this day. (Matter of Babchak v Sabers, 54 Misc 2d 150.) IV. The charter provisions of the City of Lockport are the legal authority regulating the practice of law by part-time Judges and Judges pro tempore in the City of Lockport. (Matter of Farrell v Board of Health of City of Oswego, 243 App Div 332; Schuster v Raflowitz, 245 App Div 248.) V. The canons of judicial ethics regulating the practice of law by part-time Judges and Judges pro tempore authorize the practice of law by the part-time Judges and Judges pro tempore of the courts of the City of Lockport as it has occurred since the adoption of the city charter.

      Gerald Stern for respondent.
    I. The Lockport City Charter cannot exempt petitioner from restrictions on the practice of law imposed by State law and well-established standards of ethics. (Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327, 12 NY2d 998; Kindermann Fireproof Stor. Warehouses v City of New York, 39 AD2d 266.) II. Petitioner’s failure to respond to six letters of the State Commission on Judicial Conduct constitutes serious misconduct and compounds his other misconduct. (Matter of Cooley, 53 NY2d 64.) III. The commission’s combination of investigative and adjudicative functions is valid under the United States Constitution. (Withrow v Larkin, 421 US 35; Halleck v Berliner, 427 F Supp 1225; Hortonville Dist. v Hortonville Educ. Assn., 426 US 482; Trade Comm. v Cement Inst., 333 US 683; Friedman v State of New York, 24 NY2d 528, 397 US 317; Matter of Sarisohn, 21 NY2d 36.)
   OPINION OF THE COURT

Per Curiam.

This appeal challenges a unanimous determination of the State Commission on Judicial Conduct that petitioner, a Judge of the City Court of Lockport, violated sections 16, 42 and 471 of the Judiciary Law, sections 33.1, 33.2 (a), 33.3 (b) (3) and 33.5 (f) of the Rules Governing Judicial Conduct (22 NYCRR 33.1, 33.2 [a], 33.3 [b] [3], 33.5 [f]) and canons 1, 2 and 3B (3) of the Code of Judicial Conduct. Upon review, we accept the determination made by the commission.

The charges brought against the petitioner alleged that on numerous occasions he or his law partners appeared in Lockport City Court during the period petitioner served as a Judge of that court. Additionally, petitioner was alleged to have allowed temporarily appointed Lockport City Court Judges and their law partners to appear before him.

As a defense, petitioner asserted that under the Lockport City Charter, there were two separate City Courts. The court designated City Court had sole jurisdiction over civil matters (art 15) and the Police Justice Court (art 14) was limited to criminal matters. Petitioner maintains that as a Judge in Police Justice Court, he, as well as his law partners, could continue to appear as counsel in civil matters heard in City Court.

The fallacy of petitioner’s argument is that the two courts established for Lockport in 1911 (L 1911, ch 870) were consolidated in 1964 under the provisions of the Uniform City Court Act. (UCCA, § 2300, subd [c].) It was thus improper and a violation of sections 16 and 471 of the Judiciary Law for petitioner to appear in Lockport City Court, or to have allowed his partners to have appeared in either division of that court.

As to those charges that petitioner acted improperly by allowing temporarily appointed City Court Judges and their law partners to appear before him in City Court, we agree with the commission that “public confidence in the integrity and impartiality of the courts is diminished when a part-time judge acts as a lawyer in a proceeding in his own court before one of his judicial colleagues.” Furthermore, such conduct violates those canons of Judicial Conduct which require a Judge to studiously avoid all taint of impropriety. (Code of Judicial Conduct, canon 2.)

Accordingly, we accept the determination of the commission that petitioner be removed from judicial office.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Willard H. Harris, Jr., is removed from the office of Judge of the City Court of the City of Lockport.


author: Jasen, J.

text:
    In the Matter of J. A. Green Construction Corp. et al., Appellants, et al., Petitioners, v Finance Administrator of the City of New York et al., Respondents. Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Argued May 11, 1982;
    decided June 17, 1982

      POINTS OF COUNSEL

      Hubert J. Brandt, Peter H. Brandt and Richard A. Steinberg for J. A. Green Construction Corp., appellant.
    I. The decision of the court below should be reversed since the statutes upon which that decision was based have expired pending this appeal. (Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533; Matter of Slewett & Farber v Board of Assessors of County of Nassau, 54 NY2d 547; Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494; Gilpin v Mutual Life Ins. Co. of N. Y., 299 NY 253; Matter of Kahn [National City Bank of N. Y.], 284 NY 515; United States v Schooner Peggy, 1 Cranch [5 US] 103.) II. Legislative action taken in December, 1981 to restrict the use of the State Board of Equalization and Assessment rate does not apply as a final judgment had previously been entered herein. (Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533; Matter of Slewett & Farber v Board of Assessors of County of Nassau, 54 NY2d 547.)

      Donald N. David for National Bank of North America, appellant.
    I. This case must be decided upon the law in effect at the time of this appeal. (Matter of Tartaglia v McLaughlin, 297 NY 419; Gilpin v Mutual Life Ins. Co. of

      N. Y., 299 NY 253; Quaker Oats Co. u City of New York, 295 NY 527; Lane v Johnson, 283 NY 244; People ex rel. Clark v Gilchrist, 243 NY 173; Robinson v Robins Dry Dock & Repair Co., 238 NY 271; Matter of Slewett & Farber v Board of Assessors of County of Nassau, 54 NY2d 547; Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533.) II. The recent enactment of chapter 1056 of the Laws of 1981 has no applicability to these proceedings. (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 54 NY2d 547; People ex rel. Central New England Ry. Co. v State Tax Comm., 261 App Div 416; Bank of Utica v Wormuth, 58 AD2d 182; Simonson v International Bank, 14 NY2d 281.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Reed G. Schneider and Leonard Olarsch of counsel), for respondents.
    Regardless of whether the law in effect at the time of trial or the law now in effect applies herein, subdivision 3 of section 720 of the Real Property Tax Law bars use of the State rate in New York City. Even if expiration and reenactment of subdivision 3 of section 720 of the Real Property Tax Law in 1981 constitute a change of law, then the statute in effect at the time of trial applies to this appeal and the city properly relied thereon. (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 78 AD2d 403, 80 AD2d 186, 54 NY2d 547; Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533; Wahle-Phillips Co. v Fitzgerald, 225 NY 137; Matter of Berkovitz v Arbib & Houlberg, 230 NY 261; Simonson v International Bank, 14 NY2d 281; Geneva & Waterloo Ry. Co. v New York Cent. & Hudson Riv. R. R. Co., 163 NY 228; Cole v Fall Brook Coal Co., 159 NY 59.)

      Robert Abrams, Attorney-General (John M. Farrar and Peter H. Schiff of counsel), intervenor-respondent.
    I. Respondent was entitled to the benefit of the procedural provisions embodied in subdivision 3 of section 720 of the Real Property Tax Law in effect during the trial of this proceeding. (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 54 NY2d 547; Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533; Gilpin v Mutual Life Ins. Co. of N. Y., 299 NY 253; Matter of Tartaglia v McLaughlin, 297 NY 419; Lane v Johnson,
      283 NY 244; People ex rel. Clark v Gilchrist, 243 NY 173; Robinson v Robins Dry Dock & Repair Co., 238 NY 271; Quaker Oats Co. v City of New York, 295 NY 527; Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494; Matter of Kahn [National City Bank of N. Y.], 284 NY 515.) II. Subdivision 3 of section 720 of the Real Property Tax Law (as amd by L 1981, ch 1056) is clearly applicable prospectively in the event this court remands the matter for a new trial. (Gugel v Hiscox, 216 NY 145; Lefkowitz v Resnick, 196 Mise 661; Matter of Colt Inds. v Finance Administrator of City of N. Y., 54 NY2d 533; Simonson v International Bank, 14 NY2d 881.)
   OPINION OF THE COURT

Jasen, J.

Petitioner J. A. Green Construction Corp., owner of a shopping center located in Brooklyn, New York, initiated this proceeding along with several of the lessees of that property to challenge the property’s assessed valuation for the tax years 1971-1972 through 1979-1980. The grounds for the objections are stated in the petitions as “overvaluation and inequality”. As further clarification, several of the petitions included a rider which states: “The tentative assessed valuation of the property herein above referred to seems to be made at a higher rate than the assessed valuation of all of the other property in the borough wherein the property is situated * * * The said assessment against the subject property is unequal, disproportionate and erroneous by reason of inequality”. The challenges raised by petitioners were thus whether the assessments were based on a proper valuation of the property and whether the proper ratio between fair market value and assessed value was used in determining the assessments.

This type of a challenge requires a two-part proceeding. In the first part of the proceeding, the court must establish the proper ratio of assessed value to full value. During the second part of the proceeding, the court will determine the fair market value of the property in question. The validity of the assessments is then ascertained by merely applying the proper ratio against the fair market value established by the court.

At trial, in order to establish the proper ratio of assessed value to fair market value, petitioners sought to prove the validity of and to enter as proof the equalization rate formulated by the State Board of Equalization and Assessment (SBEA). The city objected to testimony being taken on the State equalization rate on the ground that subdivision 3 of section 720 of the Real Property Tax Law limited the admissible proof on the issue of whether an assessment is unequal to selected parcels or comparable sales.

The trial court found that the amended version of subdivision 3 of section 720 of the Real Property Tax Law, which became effective May 22, 1979, was applicable to this proceeding in which the trial was commenced on May 13, 1980. The court then considered whether the amended version of the statute was constitutional. Petitioners apparently challenged its validity on the ground that it violated their rights to due process and equal protection because it was unreasonably retroactive and was designed, by barring the use of the equalization rate, to divest them of their remedy against illegally formulated assessments. The trial court reserved decision but allowed petitioners to present evidence on the method used to formulate the State equalization rate and on what the State board had found to be the proper ratio of full value to assessed value. The city raised no challenges to the SBEA rate, except for arguing that the rate was inadmissible. The trial then proceeded to the second stage during which both the petitioners and the city presented evidence concerning the fair market value of the property.

In its decision, the court reviewed the history of subdivision 3 of section 720 of the Real Property Tax Law and held that the statute, as amended, violated the petitioners’ rights to due process and equal protection because its retroactive character “would deprive the petitioners of the right to be refunded the excess payment of taxes that accrued at the time the tax was paid”. Having declared the amended statute which barred the use of the State equalization rate unconstitutional, the court held that the State equalization rates for the years in question were proper proof of the ratio between full value and assessed value. The court then established the fair market value of the property and by applying the State equalization rate determined the proper assessment for petitioners’ property. On the basis of those computations, a judgment was entered ordering the assessments reduced.

The Appellate Division reversed, dismissed the petitions and sustained the assessments. That court’s opinion indicates that it did so on the basis of its prior holding in Matter of Slewett & Farber v Board of Assessors of County of Nassau (78 AD2d 403) which declared subdivision 3 of section 720 to be constitutional.

Section 720 of the Real Property Tax Law governs this type of proceeding to challenge an assessment. Subdivision 3 of section 720 determines what is admissible to prove that an assessment is unequal. In 1961, the statute was amended to authorize the introduction of State equalization rates formulated for the tax rate in question. In Matter of O’Brien v Assessor of Town of Mamaroneck (20 NY2d 587), this court held that, despite that statutory authorization, the equalization rate could not be the exclusive means of proving that the challenged assessment was unequal. The statute was again amended in 1969. On the basis of that amendment, this court held that the State formulated equalization rate could be the exclusive proof used to establish that an assessment was unequal. (Guth Realty v Gingold, 34 NY2d 440, 450.)

In response to the physical re-evaluations which were required by this court’s decision in Matter of Hellerstein v Assessor of Town of Islip (37 NY2d 1), the Legislature again amended subdivision 3 of section 720 and passed new legislation codified as sections 307 and 721 of the Real Property Tax Law. Those provisions suspended the applicability of section 306 (Real Property Tax Law, former § 307), mandating that all property should be assessed at full value and restricted the admissible proof in a proceeding to challenge an assessment to selected parcels or comparable sales except for residential property of no more than three units (Real Property Tax Law, former § 720, subd 3; former § 721). Use of State equalization rates as proof that property was unequally assessed was thus greatly restricted in those areas undergoing re-evaluation.

Testimony taken at trial established that the City of New York was undergoing such a re-evaluation and, accordingly, the statutes, as amended, were properly found by the trial court to be applicable to this case. That court, however, declared the statutory bar on the use of the equalization rates to be unconstitutional, applied this court’s holding in Guth Realty v Gingold (supra) and permitted petitioners to introduce the State equalization rates as proof that the assessment of their property was unequal. The reversal at the Appellate Division was based on its prior holding that subdivision 3 of section 720 was constitutional, making the use of the SBEA rates improper.

The constitutional validity of subdivision 3 of section 720 and of sections 307 and 721 was previously raised in this court in Matter of Slewett & Farber v Board of Assessors of County of Nassau (54 NY2d 547). In that case, the Appellate Division declared sections 721 and subdivisions 3, 4 and 5 of section 307 unconstitutional, but found section 720 to be constitutional. Prior to this court having heard that appeal, all three statutes expired and were not re-enacted by the Legislature. We, therefore, did not pass on the question of their constitutionality and further stated that “in consequence of their expiration these enactments have no application to the case as it stands before [this court] on the present appeal.” (Matter ofSlewett & Farber v Board of Assessors of County of Nassau, supra, at p 554.)

Additionally, in order to clearly determine the status of the law at the time of our decision, we considered the applicability of the newly enacted version of subdivision 3 of section 720. As enacted effective December 3, 1981, subdivision 3 of section 720 was limited to prospective application. Thus, by its own terms it is not applicable to cases in which a judgment had been entered prior to its enactment.

Turning then to the facts of this case, we note that subdivision 3 of section 720 as enacted on December 3, 1981 has no applicability to the case now before this court. A judgment was entered in that case well before the present statute was enacted. Similarly, the former statutes, having expired during the pendency of this appeal, are not applicable to this case as it is presently before this court. Because the former statute has expired and no new provision has been enacted which is applicable to the case before us, we turn to the common law.

On the basis of Guth Realty v Gingold (34 NY2d 440, supra), and 860 Executive Towers v Board of Assessors of County of Nassau (53 AD2d 463, affd sub nom. Matter of Pierre Pellaton Apts. v Board of Assessors of County of Nassau, 43 NY2d 769), we hold that the State equalization rates are proper proof in this proceeding. Furthermore, we hold that the SBEA rates were properly admitted at trial after the trial court found subdivision 3 of section 720, which barred their use, to be unconstitutional. The Appellate Division reversal was predicated solely on its determination that subdivision 3 of section 720, now expired, was constitutional. Though the kind of proof admissible to establish value is normally a procedural question to be determined by the law in effect at the time of trial (Simonson v International Bank, 14 NY2d 281, 289-290; Cole v Fall Brook Coal Co., 159 NY 59, 68-69; see 4 NY Jur 2d 501, Appellate Review, § 400), we think the history of legislation on this issue and the differentiation by the Legislature between New York City and Nassau on the one hand and the rest of the State on the other, based as it is upon the economic effect of the differentiation, so imbues this normally procedural issue with substantive effect that we should not apply the usual rule. For that reason and because section 720 no longer bars proof which in Guth Realty (supra) this court recognized as relevant and competent, we conclude that its constitutionality is not a proper question for our consideration. Thus, the order of the Appellate Division should be reversed.

The opinion of the Appellate Division indicates that that court did not pass on the validity of the trial court’s determination of the property’s fair market value or its computation of the proper assessments. Thus, the case must be remitted to the Appellate Division to pass on those factual determinations.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for further proceedings in accordance with this opinion.

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

Order reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

      . On petitioners’ motion, the proceeding for the tax year 1979-1980 was severed because the State board had not yet formulated equalization rates for that tax year.

      . Subdivision 3 of section 720 of the Real Property Tax Law was amended by the Laws of 1969 (ch 302, § 1) to provide that the equalization rates could be the sole proof of unequal assessment. That statute was upheld in Guth Realty v Gingold (34 NY2d 440). The statute was amended in 1977 (L 1977, chs 888, 890) to allow the use of equalization rates by property type. In 1978, that provision was codified as section 307 of the Real Property Tax Law and the reference to property type was deleted from section 720. (L 1978, ch 476.) Section 307 of the Real Property Tax Law was to be effective only until December 31, 1980. Subdivision 3 of section 720 was then further amended in 1979 (L 1979, ch 126) to eliminate the use of the equalization rate in any proceeding commenced on or after January 1, 1974 and not finally determined as of May 22, 1979. At the same time, section 721 of the Real Property Tax Law was added to allow the use of equalization rates by certain residential property owners. The retroactivity provision of subdivision 3 of section 720 was immediately amended to read “proceeding commenced on or after” January 1, 1970 and was made effective only until December 31, 1980. (L 1979, ch 127.) The expiration date for section 307 of the Real Property Tax Law was extended to May 15, 1981. (L 1980, ch 880.) The expiration date for subdivision 3 of section 720 and section 721 of the Real Property Tax Law also was extended to May 15, 1981. (L1981, ch 3.) By the Laws of 1981 (ch 259), the expiration dates of section 307 and subdivision 3 of section 720 were extended to October 30, 1981. A new version of subdivision 3 of section 720 of the Real Property Tax Law was passed over the Governor’s veto on December 3, 1981. (Matter ofSlewett & Farber v Board of Assessors of County of Nassau, 54 NY2d 547.)


text:
    The People of the State of New York, Respondent, v James F. Sullivan, Jane R. Liebman and Mark L. Guido, Appellants.
    Argued June 8, 1982;
    decided June 23, 1982

      POINTS OF COUNSEL

      Thomas J. O’Connor for James F. Sullivan, Stephen A. Coffey for Jane A. Liebman, and Dennis Schlenker for Mark L. Guido, appellants.
    I. A search warrant issued without support by oath or affirmation is constitutionally and statutorily defective. (People v Bromley, 85 Misc 2d 988; People v Bartolomeo, 53 NY2d 225; People v Brown, 40 NY2d 183; United States v Harris, 403 US 573; People v Wheatman, 29 NY2d 337.) II. The unsworn statement of the informant does not constitute a declaration against penal interest sufficient to establish probable cause for issuance of the search warrant. (Aguilar v Texas, 378 US 108; People v Settles, 46 NY2d 154; United States v Harris, 403 US 573; People v Brown, 26 NY2d 88; People v Piazza, 48 NY2d 151; People v Maerling, 46 NY2d 289; United States v Seyfried, 435 F2d 696, 402 US 912; People v Bromley, 85 Misc 2d 988; People v Polk, 100 Misc 2d 435; People v Hicks, 38 NY2d 90.) III. Where a magistrate expresses “concern” over the supporting statement of an informant, and thereafter engages in an unsworn discussion with the police officer applicant in which he is advised in conclusory terms of the informant’s prior reliability and in which he receives gratuitous assurances concerning the informant’s reliability, a search warrant issued thereupon is constitutionally defective. (Johnson v United States, 333 US 10; People v Hansen, 38 NY2d 17; Rugendorf v United States, 376 US 528; People v Brown, 40 NY2d 183.)

      Sol Greenberg, District Attorney (llene R. Bergman of counsel), for respondent.
    I. The search warrant and its attached statement were not constitutionally defective. (People v Hicks, 38 NY2d 90.) II. The reliability of the informant was adequately established and probable cause existed. (People v Hanlon, 36 NY2d 549; People v Vaccaro, 39 NY2d 468; People v Marshall, 13 NY2d 28; People v McRay, 51 NY2d 594; Aguilar v Texas, 378 US 108; People v Hicks, 38 NY2d 90; Andresen v Maryland, 427 US 463; Spinelli v United States, 393 US 410; People v Rodriguez, 52 NY2d 483.) III. The procedure utilized in this case was proper. (People v Potwora, 48 NY2d 91; People v Hanlon, 36 NY2d 549.)
   OPINION OF THE COURT

Jasen, J.

Under both the State and Federal Constitutions, no warrant can be issued except upon probable cause “supported by oath or affirmation”. (NY Const, art I, § 12; US Const, 4th Arndt.) We are asked to decide on this appeal whether a warrant issued on the basis of a statement which, while not sworn to, contained a form notice to the effect that false statements are punishable under section 210.45 of the Penal Law satisfies the “oath or affirmation” aspect of this constitutional requirement. We conclude that it does.

On April 18, 1979, Officer J. A. Liptak of the New York State Police appeared before a Police Court Justice of the City of Cohoes and applied for a warrant to search the residence of defendant Mark Guido. In support of this application, Officer Liptak submitted his own sworn affidavit which recited, among other things, that Liptak had received information from a confidential informant that defendant Guido possessed and sold marihuana in his house. Liptak’s affidavit then referred to the attached, typewritten statement of an informant by the name of Anthony Colarusso. This statement was dated April 18, 1979 and disclosed Colarusso’s name, address and present place of employment. At the time, Colarusso was under indictment for the felonious possession of cocaine.

Colarusso’s statement recited that he had met defendant Guido two years earlier, that he had “partied” with Guido, and that he had “gotten some pot off” Guido on a few occasions. The statement then made specific reference to Colarusso’s observations while at Guido’s house on the night of April 17,1979. Colarusso asserted that he “noticed a lot of marijuana in cardboard boxes” and that one box was “in the closet” and another was “in the living room”. Colarusso estimated that “there was maybe 60-70 pounds of grass” on the premises. Although unsworn, Colarusso’s statement included the following warning: “False statements made herein are punishable as a Class A Misdemeanor pursuant to section 210.45 of the Penal Law.” Colarusso signed the statement below the warning and his signature was witnessed by Liptak and a second officer.

Before issuing the warrant, the Police Court Justice engaged Officer Liptak in an off-the-record, unsworn conversation concerning Colarusso’s past reliability as an informant. This discussion was summarized in a memorandum prepared by the Police Court Justice for his own file and which is included in the record on appeal. The substance of this memorandum indicates that Officer Liptak had known Colarusso for one and one-half years and that the information provided by Colarusso in the past had been accurate.

The warrant was then issued and, upon execution, approximately 130 pounds of marihuana, over $15,000 in currency and a quantity of pills were found at Guido’s residence. The defendants were thereafter indicted for criminal possession of marihuana in the first degree. (Penal Law, § 221.30.) After their motion to suppress was denied, defendants pleaded guilty to a reduced charge of attempted criminal possession of marihuana in the second degree and each was sentenced to five years probation. On appeal, a unanimous Appellate Division affirmed defendants’ convictions (82 AD2d 997), and leave to appeal was granted by an Associate Judge of this court.

Defendants contend that the search warrant was statutorily and constitutionally defective because it was issued on the basis of a statement by Colarusso which was unsupported by “oath or affirmation.” Additionally, defendants assert that the papers submitted in support of the warrant application did not establish the reliability of Colarusso as an informant and, therefore, the warrant was issued on less than probable cause. There should be an affirmance.

At the outset, it should be noted that the Criminal Procedure Law offers no guidance in resolving the particular issue presented on this appeal. CPL 690.35 requires that an application for a search warrant “be in writing” and “be made, subscribed and sworn to by a public servant”. (CPL 690.35, subd 1.) The application must contain “[ajllegations of fact” that establish “reasonable cause to believe” that contraband may be found on the premises to be searched. (CPL 690.35, subd 2, pars [b], [c].) These allegations of fact may be based either “upon personal knowledge of the applicant or upon information and belief, provided that in the latter event the sources of such information and the grounds of such belief are stated.” (CPL 690.35, subd 2, par [c].) In addition, the applicant for a search warrant is permitted to submit “depositions of other persons containing allegations of fact supporting or tending to support those contained in the application”. (CPL 690.35, subd 2, par [c] [emphasis supplied].) While authorizing the use of such supporting “depositions” in connection with an application for a search warrant, the Legislature has provided no definition of that term; nor has the form of or the method for verifying such “depositions” been statutorily prescribed. (Cf. CPL 100.20, 100.30 [providing definition, form and methods for verification of “supporting deposition” filed with certain accusatory instruments].)

The constitutional mandate similarly is phrased in a general manner: an application for a search warrant must be “supported by oath or affirmation”. (NY Const, art I, § 12; US Const, 4th Arndt.) There is no constitutional prescription as to the particular form of the “oath or affirmation” or the exact manner in which it is to be administered. In the usual case, there will be a formal swearing before a notary to the truth of the information provided, and any written statements submitted in support of the warrant application generally will contain the traditional jurat. This does not mean, however, that such procedural formality is a sine qua non of the “oath or affirmation” requirement. Indeed, a method of verification by which the maker of the statement is first alerted to the criminal consequences of knowingly providing false information in connection with a warrant application and then voluntarily acknowledges his acceptance of those consequences should suffice for purposes of the constitutional mandate that a warrant be issued upon proof “supported by oath or affirmation”.

While Colarusso’s supporting statement was not executed under formal oath, his statement did contain a warning that any false statements made by him would be punishable as a class A misdemeanor under section 210.45 of the Penal Law. We believe this statutorily authorized form notice served as the procedural and functional equivalent of the more traditional type of oath or affirmation. Therefore, the use of Colarusso’s statement in determining whether there was probable cause to issue the warrant was not constitutionally proscribed.

The form notice provision presently embodied in section 210.45 of the Penal Law was specifically enacted by the Legislature in order to provide a convenient method of assuring the truthfulness of documents without resort to the often cumbersome procedure of requiring an oath before a notary. (See Governor’s Memorandum, NY Legis Ann, 1964, p 517.) Verification by means of a form notice has been sanctioned in a variety of contexts. (See, e.g., Judiciary Law, former §§ 595, 600.) In particular, use of the form notice is an authorized method by which to verify a variety of accusatory instruments which often form the predicate for the issuance of an arrest warrant. (See CPL 100.30, subd 1, par [d]; 120.20.) Most importantly, a person signing a statement containing a form notice clearly is alerted to the very real and significant possibility of criminal prosecution should the information he provides prove to be false. (See People v Hicks, 38 NY2d 90, 94; see, also, People v Brown, 40 NY2d 183,188.) Indeed, the form notice may provide a greater practical assurance against intentional misstatements of fact than the more mechanical and oft times routine procedure of swearing before a notary.

In short, the form notice authorized by section 210.45 of the Penal Law is a more than adequate procedural safeguard against the rendition of perjury. Although perhaps less formal in nature than the more traditional methods of verification, a statement containing such a warning is, practically as well as theoretically, no different than a statement under oath. It follows that a subscribed statement which contains a warning to the effect that knowingly providing false information is punishable under section 210.45 of the Penal Law may be relied upon by a magistrate when determining probable cause without violating the constitutional mandate that warrants only be issued upon proof “supported by oath or affirmation”.

Having concluded that Colarusso’s statement was properly relied upon to establish the existence of probable cause warranting a search of defendant Guido’s residence, it is not necessary to reach the question whether Colarusso’s reliability as an informant was adequately established under the test of Aguilar v Texas (378 US 108). Suffice it to say that Colarusso’s statement was based on his own personal observations of the defendant’s premises and, on its face, set forth factual information sufficient to establish probable cause to believe that a large quantity of marihuana could be found there. Under such circumstances, the Aguilar standard is inapplicable since the issuing magistrate was justified in concluding, solely on the basis of the documents presented, that there was probable cause to conduct a search. (People v Bartolomeo, 53 NY2d 225, 233-234; People v Hicks, 38 NY2d 90, 93-94, supra.) True, the Police Court Justice may have entertained some doubt as to Colarusso’s reliability since he engaged Officer Liptak in an off-the-record, unsworn discussion on the matter. There is, however, no indication that this conversation revealed anything that would raise a doubt concerning Colarusso’s reliability as an informant. In fact, the issuing Justice’s memorandum is to the contrary. Although the better practice would have been to put the information in a supplemental affidavit, there is, under the particular circumstances of this case, no basis for disturbing the finding made below that there was probable cause to support the issuance of the warrant.

For these reasons, we hold that defendants’ motion to suppress was properly denied and, therefore, the orders of the Appellate Division should be affirmed.

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

Orders affirmed.

       Section 210.45 of the Penal Law provides: “A person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable.”


text:
    Macmillan, Inc., Respondent, v CF Lex Associates et al., Appellants, et al., Defendants.
    Argued June 8, 1982;
    decided June 23, 1982

      POINTS OF COUNSEL

      Adlai S. Hardin, Jr., and Charles G. Berry for Campean Corporation (U.S.), Inc., and Charles H. Miller and Lois N. Rosen for CF Lex Associates and another for appellants.
    I. Macmillan cannot be a “party in interest”. (Newport Assoc.

      v Solow, 30 NY2d 263, 410 US 931; Wicks v Monihan, 130 NY 232; People v Hawkins, 157 NY 1; United States v General Motors Corp., 323 US 373; Sylvander v Taber, 19 Misc 2d 1005, 9 AD2d 1019, 8 NY2d 835, 1038, app dsmd sub nom. Sylvander v Farmers & Traders Life Ins. Co., 364 US 629; Eubank v Richmond, 226 US 137; Seattle Trust Co. v Roberge, 278 US 116; Matter of Concordia Coll. Inst, v Miller, 301 NY 189; Janas v Town Bd. of Town of Fleming, 51 AD2d 473.) II. The court below has misconstrued the phrase “tract of land”. III. The court below has misconstrued the phrase “adversely affected” as used in clause (Y). IV. The decision of the court below reflects anomalies which demonstrate the fundamental error of its reasoning.

      Walter M. Volpi, Terence F. Gilheany, Donald G. Glascoff, Jr., Kathy H. Chin and H. Peter Haveles, Jr., for respondent.
    I. The legislative history and purposes of the zoning resolution establish that Macmillan is a “party in interest” within the meaning of the zoning resolution. (Newport Assoc. v Solow, 30 NY2d 263, 410 US 931; People ex rel. McClelland v Roberts, 148 NY 360; Matter of Sigety v Hynes, 38 NY2d 260; Kent Nursing Home v Office of Special State Prosecutor for Health & Social Servs., 425 US 974; Matter of Lorie C., 49 NY2d 161; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Golden v Koch, 98 Misc 2d 972, 73 AD2d 575, 49 NY2d 690.) II. Macmillan qualifies as a party in interest under both clauses (X) and (Y) of the “party in interest” definition. (City Bank of Bayonne v Hocke, 168 App Div 83.) III. Appellants’ constitutional arguments are not reviewable by this court and, in any event, are without merit. (Barber v Dembroski, 54 NY2d 648; Nod-Away Co. v Carroll, 240 NY 252; Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104; Welsh v Swasey, 214 US 91; Goldblatt v Hempstead, 369 US 590; Gorieb v Fox, 274 US 603; Seattle Trust Co. v Roberge, 278 US 116; Eubank v Richmond, 226 US 137.)
   OPINION OF THE COURT

Jones, J.

“Tract of land” as used in the New York City Zoning Resolution refers to surface land only and does not include buildings erected thereon. Accordingly, even a very substantial space tenant is not a party in interest whose consent is required for an effective declaration of zoning lot restrictions and the attendant zoning lot merger under the resolution.

Plaintiff is a space tenant in the Macmillan Building, a 31-story building located at 866 Third Avenue in the Borough of Manhattan, New York City. Under its lease as amended which, subject to the tenant’s exercise of options, runs until 2008, plaintiff occupies 100% of the usable area of the building above the first floor and 95% of the usable area of the building as a whole.

The Macmillan Building occupies the eastern third of the block bounded by Third Avenue on the east, 52nd Street on the south, Lexington Avenue on the west, and 53rd Street on the north. Adjoining the Macmillan Building to the west are two smaller buildings, an eight-story garage to the north (156 East 53rd Street) and a nine-story apartment building on the south (155-161 East 52nd Street). In the western half of the block, facing on Lexington Avenue, is the proposed development lot which is the genesis of the present litigation.

In July, 1981 Campeau Corporation (U.S.), Inc., purchased the Macmillan Building from The John Hancock Mutual Life Insurance Company, thereby succeeding Hancock as plaintiff’s landlord. On September 30, 1981, Campeau, CF Lex Corp. (a general partner of CF Lex Associates, the entity which held title to the development lot), and others, being the holders of separate fee titles to all the underlying land in the block, executed a declaration of zoning lot restrictions to effect a zoning lot merger with respect to the block pursuant to the provisions of the New York City Zoning Resolution as amended. On the same day CF Lex Corp. purchased from Campeau the “air rights” associated with the land on which the Macmillan Building stands for $5,060,000. The objective of the zoning lot merger and the acquisition of these air rights was to enable CF Lex Corp. to erect a larger building on the development lot than could otherwise have been constructed.

In anticipation of these transactions, plaintiff instituted the present action in August, 1981 seeking a declaration that the transfer of air rights by a zoning lot merger of the properties in the block could not be effected without first obtaining the written consent thereto of plaintiff. The contention was that its consent was required because it was a “party in interest” under the zoning resolution.

Defendants moved under CPLR 3211 to dismiss the complaint for failure to state a cause of action, on the ground that plaintiff was not a “party in interest” within the contemplation of the zoning resolution. Supreme Court granted the motions and denied as academic applications by defendants for other relief and cross motions of plaintiff. The Appellate Division reversed the determinations of Supreme Court, reinstated the complaint, temporarily enjoined defendants from proceeding with construction pursuant to the zoning lot merger and the purchase of air rights, and remitted the case to Supreme Court for further proceedings. Defendants appealed to our court pursuant to leave granted by the Appellate Division. We now reverse.

Under the New York City Zoning Resolution as amended in 1977, before a tract of land may be treated as a single zoning lot, a written declaration consenting to the zoning lot merger must be executed by each party in interest, unless such a party has waived its right with respect thereto. Once the separate parcels have been so “merged”, the maximum bulk of a building permissible under the zoning resolution is calculated on the basis of the merged zoning lot. Thus, by this means excess square footage associated with an existing building can be made available for use on an adjoining parcel. An “air rights” transfer can thus be effected, making permissible construction on the adjoining parcel of a larger building than would otherwise have been allowable under the resolution. By recourse to these procedures in the present case, defendants sought to acquire air rights associated with the land on which the Macmillan Building stood to enable the construction on the development lot of a larger building than would otherwise have been permissible.

The controversy between the parties is whether plaintiff is a “party in interest” within the prescription of the zoning resolution — if so, the declaration without its participation is unavailing to effect the desired zoning lot merger; if not, the merger is effective and the transfer of the air rights will make possible the desired construction on the development lot. Section 12-10 (subd [d], par [iv] [“zoning lot”] of the zoning resolution provides: “A ‘party in interest’ in the portion of the tract of land covered by a Declaration shall include only (W) the fee owner or owners thereof, (X) the holder of any enforceable recorded interest in all or part thereof which would be superior to the Declaration and which could result in such holder obtaining possession of any portion of such tract of land, (Y) the holder of any enforceable recorded interest in all or part thereof which would be adversely affected by the Declaration, and (Z) the holder of any unrecorded interest in all or part thereof which would be superior to and adversely affected by the Declaration and which would be disclosed by a physical inspection of the portion of the tract of land covered by the Declaration.” Plaintiff asserts that it is a party in interest under one or both of clauses (X) and (Y). This, in turn, depends for present purposes on what is intended by the phrase, “tract of land”. If it refers only to the underlying surface land, plaintiff, having no cognizable interest in the land itself, is not a party in interest; on the other hand if it comprehends the buildings and improvements on the land, plaintiff is the holder of a substantial recorded interest therein and thus is a party in interest.

We conclude that the phrase “tract of land” refers only to the underlying surface land and does not embrace buildings on that land. After remarking that the phrase “tract of land” is not defined in the zoning resolution, we base our conclusion on several convergent considerations. In the first place, the denotation of the word “tract” is “a region or stretch (as of land) that is usu. indefinitely described or without precise boundaries”, or “a precisely defined or definable area of land” (Webster’s Third New International Dictionary) and the word “land” means “the solid part of the surface of the earth in contrast to the water of oceans and seas” (id.). Neither alone nor in combination do these words in their lexigraphic sense connote buildings or improvements. Moreover it is significant that the draftsmen of the resolution chose not to use the familiar and readily available “land and improvements”. Second, as used elsewhere in the zoning resolution we find nothing to suggest that a broader connotation was intended to be attached to the phrase. The words “tract” and “lot” are used to refer to equivalent concepts (see, e.g., § 12-10, “zoning lot”, subds [b], [c]) and it would be a strained interpretation to include buildings and structures.

Finally, it would ill serve the achievement of the objective of the zoning resolution to hold that each party having an interest in a building on the land must join in execution of the declaration. Although it may be acknowledged that in the case before us plaintiff has a very substantial interest in the building, nothing in the phrase “tract of land” would permit a quantum differentiation. To require the consent of every space tenant with a recorded interest in the building, and thus to bestow on each such tenant a power of veto, would be so to encumber the procedure for zoning lot merger as to make it of questionable practical utility. Any such consequence would be inconsistent with the purposes of the zoning resolution, one of which is stated to be, “[t]o promote the most desirable use of land and direction of building development in accord with a well-considered plan, to promote stability of commercial development, to strengthen the economic base of the City” (§ 31-GO, subd [k]).

Moreover, air rights, at the heart of the concept of zoning lot merger, have historically been conceived as one of the bundle of rights associated with ownership of the land rather than with ownership of the structures erected on the land. Air rights are incident to the ownership of the surface property — the right of one who owns land to utilize the space above it. This right has been recognized as an inherent attribute of the ownership of land since the earliest times as reflected in the maxim, “[c]ujus est solum, ejus est usque ad coelum et ad inferos” [“to whomsoever the soil belongs, he owns also to the sky and to the depths”] (Butler v Frontier Tel. Co., 186 NY 486, 491; 2 Blackstone’s Comm, p 18; see Ball, Vertical Extent of Ownership in Land, 76 U of Pa L Rev 631 in which the maxim is attributed to the early 14th century scholar Cino da Pistoia).

For the reasons stated, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for entry of a declaratory judgment in accordance with this opinion.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and case remitted to Supreme Court, New York County, for entry of a declaratory judgment in accordance with the opinion herein. Question certified answered in the negative.

      . A memorandum of the original lease and subsequent amendments and modifications have been recorded in the office of the City Register.

      . Plaintiff’s motion to dismiss the appeal for mootness was denied (56 NY2d 855).

      . The assertion of plaintiff that air rights owe their origin to the New York City Zoning Resolution must be rejected. The zoning resolution provides sophisticated procedures to facilitate the functional transfer of air rights. In so doing it treats of property rights long antedating the enactment of the resolution.


author: Gabrielli, J.

text:
    Casimir Pajak, Respondent, v Marlene Pajak, Appellant.
    Argued June 7, 1982;
    decided June 23, 1982

      POINTS OF COUNSEL

      David Gerald Jay for appellant.
    Cruel and inhuman treatment implies intentional acts. (Rathbun v Rathbun, 40 How Prac 328; Goodale v Lawrence, 88 NY 513; Anonymous v Anonymous, 37 Misc 2d 773; Laudo v Laudo, 188 App Div 699; Horn v Horn, 142 App Div 848; Rios v Rios, 34 AD2d 325, 29 NY2d 840; Sirote v Sirote, 54 AD2d 694; Anonymous v Anonymous, 166 Misc 861; Pierone v Pierone, 57 Misc 2d 516; Serota v Serota, 20 Misc 2d 184.)

      Paul M. Michalek for respondent.
    Subdivision (1) of section 170 of the Domestic Relations Law, in establishing cruel and inhuman treatment as a ground for divorce, considers the effect on the aggrieved spouse of his partner’s conduct to be of controlling significance. (Bishop v Bishop, 62 Misc 2d 436; Hoops v Hoops, 292 NY 428; Ray v Ray, 62 Misc 2d 652; Mohrmann v Kob, 264 App Div 209, 291 NY 181; Powell v Powell, 282 App Div 99; Biamonte v Biamonte, 57 AD2d 1052; Rossouw v Rossouw, 70 AD2d 910; Ackerman v Ackerman, 200 NY 72; Cohen v Cohen, 200 Misc 19.)
   OPINION OF THE COURT

Gabrielli, J.

Subdivision (1) of section 170 of the Domestic Relations Law provides that a spouse may maintain an action for divorce on the ground of “[t]he cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.” The issue on this appeal is whether the defendant’s claimed mental illness may be asserted as a defense in an action of this nature.

The parties to this appeal were married in 1964 and in 1980 the plaintiff husband brought this action for divorce on the ground of cruel and inhuman treatment. Defendant wife, alleging that her actions resulted from her mental illness, sought to assert her claimed affliction as an affirmative defense.

The trial court found that in 1979 the wife began to engage in certain behavior which was detrimental to the welfare of the plaintiff. She directly threatened her husband with physical harm on several occasions, threatened to assault him with dangerous instruments while he was asleep, and told others that the couple’s two younger children were not the husband’s children, but were conceived by artificial insemination. As a result of his wife’s behavior, plaintiff experienced gastrointestinal disorders, sleeping difficulties and other maladies which affected his physical well-being, his vitality and his work.

Based on these factual findings, the trial court concluded that defendant wife’s conduct endangered her husband’s physical and mental well-being and rendered it unsafe for him to cohabit with her. In granting plaintiff a divorce, the court refused to accept the wife’s assertion that her claimed mental illness constituted a legal defense to her husband’s cause of action.

The Appellate Division affirmed, by a divided court, agreeing with the trial court that “while mental illness by itself would not constitute cruel and inhuman treatment an attempt to explain or excuse conduct otherwise evincing actionable cruelty because of alleged mental illness is unavailing in an action for divorce” (85 AD2d 923). Because of the statutory framework, we must agree with this conclusion and hold that mental illness is not a defense to an action for divorce brought on the ground of cruel and inhuman treatment.

Initially, we note that the jurisdiction of the courts to grant a divorce exists only by virtue of statute (Hoops v Hoops, 292 NY 428; Ackerman v Ackerman, 200 NY 72). The issue of whether mental illness is a defense in an action for divorce on the ground of cruel and inhuman treatment therefore involves strictly a matter of statutory construction.

As the Appellate Division majority observed, the statutory framework at issue does not provide that mental illness is a defense to an action for divorce on the ground of cruel and inhuman treatment. Instead, subdivision (1) of section 170 of the Domestic Relations Law focuses exclusively upon the effect of the conduct complained of and makes no mention of its cause. Moreover, while section 171 of the Domestic Relations Law establishes several defenses to an action for divorce on the ground of adultery, no defenses are established for divorce on the ground of cruel and inhuman treatment. This provides strong indication that the failure of the Legislature to specify the defense of mental illness in an action for divorce of this nature was not a matter of mere legislative oversight. The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended (McKinney’s Cons Laws of NY, Book 1, Statutes, § 74).

Other considerations also compel a strict construction of the statute in question. Both the plaintiff and defendant on this appeal present compelling cases — the plaintiff seeks to escape the cruelty of his spouse through the remedy of divorce and the defendant seeks to avoid the rigors of a fault divorce through her claim that she was not ultimately responsible for her actions. The rule of law which should apply in this instance must take into consideration both of these competing interests. The intention of the Legislature, of course, must govern here. We must assume, in light of the competing interests involved, that the Legislature chose to place primary focus upon the party seeking to obtain the divorce. The failure of the Legislature to provide that mental illness is a valid defense in an action for divorce based upon the ground of cruel and inhuman treatment must be viewed as a matter of legislative design. Any other construction of the statute would amount to judicial legislation.

It is a fundamental canon of statutory construction that courts “do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its actions on matters within its powers” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 73). We thus decline to accept defendant’s invitation to construe the statute in question as providing that mental illness is a valid defense. The potentially harsh aspects of the statute as applied to the present situation might, however, indicate a fertile area for legislative examination.

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

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

Order affirmed.


author: Chief Judge Cooke. Jasen, J.

text:
    Catherine McDermott, Respondent, v Douglas Torre et al., Appellants, et al., Defendant.
    Argued May 11, 1982;
    decided June 15, 1982

      POINTS OF COUNSEL

      William, W. Haury, Jr., and George van Setter for Douglas Torre, appellant.
    I. The court below erred as a matter of law in adopting the Fonda v Paulsen definition of continuous treatment. (Florio v Cook, 65 AD2d 548; Merced v New York City Health & Hosps. Corp., 44 NY2d 398; Weber v Scheer, 58 AD2d 520; Cooper v Edinbergh, 75 AD2d 757; Feigelson v Ryan, 108 Misc 2d 192; Davis v City of New York, 38 NY2d 257; Fonda v Paulsen, 46 AD2d 540; Schiffman v Hospital for Joint Diseases, 36 AD2d 31, 29 NY2d 483; Kossick v United States, 330 F2d 933; Borgia v City of New York, 12 NY2d 151.) II. The practical effect of the Fonda v Paulsen decision could result in an indefinite extension of the Statute of Limitations. (Fonda v Paulsen, 46 AD2d 540; Borgia v City of New York, 12 NY2d 151.) III. Frew v Hospital of Albert Einstein Coll. of Medicine Div. of Montefiore Hosp. & Med. Center is inapposite to this appeal. (Frew v Hospital of Albert Einstein Coll, of Medicine Div. of Montefiore Hosp. & Med. Center, 76 AD2d 826.) IV. Plaintiff’s affidavit is insufficient to defeat a motion for summary judgment. (Di Sabato v Soffes, 9 AD2d 297; Starbo v Ruddy, 66 AD2d 950; Banks v Auerbach, 56 AD2d 819; Indig v Finkelstein, 23 NY2d 728; Doyon v Bascum, 38 AD2d 645; Brush v Olivo, 81 AD2d 852; McKnight v New York City Health & Hosps. Corp., 70 AD2d 587; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.) V. In the alternative, a hearing should be held solely on the issue of the nature of the office visit so as to determine whether there was a continuing course of treatment or merely separate acts of medical malpractice. (Matter of Hurd v County of Allegany, 39 AD2d 499; Dunn v Mager, 47 AD2d 919.)

      Alfred K. Kestenbaum, Matthew H. Ross and Betsy F. Woolf for Central Health Laboratories, Inc., and others, appellants.
    I. As a matter of law, the biopsy report by defendant Laboratories did not constitute continuous treatment. (Fonda v Paulsen, 46 AD2d 540; Davis v City of New York, 38 NY2d 257; McQuinn v St. Lawrence County Lab., 28 AD2d 1035, 21 NY2d 644; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 1073, 374 US 808; Borgia v City of New York, 12 NY2d 151; Schiffman v Hospital for Joint Diseases, 36 AD2d 31, 29 NY2d 483; Florio v Cook, 65 AD2d 548, 48 NY2d 792; Charalambakis v City of New York, 46 NY2d 785.) II. There was no continuous treatment by defendant physicians; even if there were, such treatment was not imputable to defendant Laboratories. (Borgia v City of New York, 12 NY2d 151; Renda v Frazer, 100 Misc 2d 511, 75 AD2d 490.) III. In any event, plaintiff’s complaint is barred by the two- and one-half year Statute of Limitations under CPLR 214-a. IV. The decision below will result in unwarranted higher costs to the public for health services by clinical laboratories and other health care providers.

      David S. Gould and Gerald J. Mondora for respondent.
    I. The Statute of Limitations did not begin to run until the termination of respondent’s continuous treatment by appellant Torre. (Wear v State of New York, 33 AD2d 886; Borgia v City of New York, 12 NY2d 151; Fonda v Paulsen, 46 AD2d 540; Miller v Wells, 58 AD2d 954; Florio v Cook, 65 AD2d 548, 48 NY2d 792; Renda v Frazer, 100 Misc 2d 511, 75 AD2d 490; Holdridge v Heyer-Schulte Corp. of Santa Barbara, 440 F Supp 1088; Szajna v Rand, 75 AD2d 617; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Dickey v County of Nassau, 65 AD2d 780.) II. The three-year Statute of Limitations should apply in this case. (Frew

      v Hospital of Albert Einstein Coll, of Medicine Div. of Montefiore Hosp. & Med. Center, 76 AD2d 826; Szajna v Rand, 75 AD2d 617.) III. The continuous treatment rendered by Dr. Torre should be imputed to Laboratories for the purpose of tolling the Statute of Limitations against it. (Holdridge v Heyer-Schulte Corp. of Santa Barbara, 440 F Supp 1088; Graddy v New York Med. Coll., 19 AD2d 426; Fonda v Paulsen, 46 AD2d 540; Florio v Cook, 65 AD2d 548.) IV. Public policy considerations dictate that the decision below be affirmed. (Topel v Long Is. Jewish Med. Center, 55 NY2d 682; Centeno v City of New York, 48 AD2d 812, 40 NY2d 932; Schiffman v Hospital for Joint Diseases, 36 AD2d 31; Roginsky v Richardson-Merrell, Inc., 378 F2d 832.)

      Hope S. Foster, of the District of Columbia Bar, admitted pro hac vice, for the American Clinical Laboratory Association, amicus curiae.

    I. Application of the continuing treatment doctrine would be contrary to the law of this State. (Fonda v Paulsen, 46 AD2d 540; McQuinn v St. Lawrence County Lab., 28 AD2d 1035; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 1073, 374 US 808; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Borgia v City of New York, 12 NY2d 151.) II. Application of the continuing treatment doctrine to the independent laboratory would be inappropriate and unwise as a matter of policy.
   OPINION OF THE COURT

Chief Judge Cooke.

In an action for medical malpractice arising from a negligent act occurring before July 1, 1975 and where there has been continuous treatment extending beyond that date, the three-year Statute of Limitations applies rather than the shorter period of CPLR 214-a. The continuing treatment by the physician, however, cannot be imputed to an independent laboratory in the absence of an agency or other relevant relationship between the laboratory and doctor or some relevant continuing relation between the laboratory and the patient.

On May 10, 1974, plaintiff consulted defendant Torre, a dermatologist, and requested that he examine a dark mole on her left ankle. Torre excised the mole and submitted a specimen to defendant Central Health Laboratories, Inc. (Laboratories), for a pathology report. About one week later, Torre informed plaintiff that the laboratory report was negative and “therefore nothing further had to be done”.

Plaintiff saw Torre at least eight more times between May 10,1974 and September 13,1976. During that period, plaintiff sought medical attention for various other ailments, but also complained about continued pain and a grayish color in her ankle. Torre re-examined the ankle several times and referred to the earlier biopsy report at least once. On each occasion, and even at plaintiff’s last visit, Torre reassured her that there was no cause for concern.

In May, 1977, plaintiff consulted defendant Ju, a plastic surgeon. He assured her that her ankle was healed and free of disease.

Later developments proved the earlier diagnosis to be wrong. In May, 1978, plaintiff discovered a lump in her groin. She immediately consulted a surgeon, who discovered a malignant melanoma after an operation on May 18. Further surgery in June, 1978 included removing another malignant melanoma from the site where Torre had excised the mole some four years earlier. Plaintiff was required to undergo further, radical surgery and extensive physical therapy. She has a severe limp and other permanent, debilitating injuries.

Plaintiff commenced this suit for medical malpractice in 1979. Torre was served on July 5; Laboratories on August 17. Laboratories successfully moved to dismiss the complaint on the ground that the action was time-barred by the three-year Statute of Limitations (CPLR 214, subd 6). Subsequently, Torre moved for summary judgment on the same basis, and, alternatively, that if continuous treatment were found, then the action was barred by the two- and one-half year limitation of CPLR 214-a. Plaintiff opposed the motion by arguing that continuous treatment had occurred, but that the three-year period was nonetheless applicable. Torre’s motion was granted.

The Appellate Division unanimously reversed (82 AD2d 152). That court held that the continuous treatment doctrine could not be determined on the record as a matter of law and that the three-year Statute of Limitations was applicable. It also ruled that Torre’s continuous treatment could be imputed to Laboratories. Defendants were granted leave to appeal by the Appellate Division on a certified question. The order of the Appellate Division should be modified by dismissing the action as to Laboratories.

Initially, attention must be directed to whether the continuous treatment doctrine is applicable in the present case. Under that rule, the time in which to bring a malpractice action is stayed “when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v City of New York, 12 NY2d 151, 155). The concern, of course, is whether there has been continuous treatment, and not merely a continuing relation between physician and patient.

As a starting point, continuous treatment does not contemplate circumstances where a patient initiates return visits merely to have his or her condition checked (see id.). The Statute of Limitations may begin to run “once a hospital or physician considers the patient’s treatment to be completed and does not request the patient to return for further examination” (1 Weinstein-Korn-Miller, NY Civ Prac, par 214-a.03, p 2-321; cf. Davis v City of New York, 38 NY2d 257). This is not to say, however, that a complete discharge by a physician forever bars a finding of continuing treatment. Included within the scope of “continuous treatment” is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment. Thus, there will be continuing treatment when a patient, instructed that he or she does not need further attention, soon returns to the doctor because of continued pain in that area for which medical attention was first sought.

Contrary to plaintiff’s position, the continuing nature of a diagnosis does not itself amount to continuous treatment. Fonda v Paulsen (46 AD2d 540), upon which plaintiff relies, does not stand for that proposition. There, a pathologist’s misdiagnosis of a biopsy resulted in the patient’s not receiving treatment, notwithstanding the patient’s repeated complaints of pain. Critical in Fonda was that the patient had returned to the doctor, albeit because of another injury, seeking treatment for tenderness at the spot where the biopsy excision had been made, and did so in a timely manner.

Properly read, Fonda does support plaintiff’s claim of continuous treatment. As in Fonda, plaintiff returned to her doctor for other reasons, but she allegedly requested him also to examine her ankle because of continuing pain. Issues of fact exist on this record as to whether plaintiff’s concern about her ankle was one of the purposes for her subsequent visits. Thus, it cannot be determined at this stage that plaintiff’s relation with Torre did or did not amount to continuous treatment. The existence of these factual questions preclude granting summary judgment at this juncture (see Ugarriza v Schmieder, 46 NY2d 471).

Assuming that continuous treatment did occur in the present case, the appropriate Statute of Limitations must be determined. The initial misdiagnosis occurred in May, 1974, at which time the period for bringing a medical malpractice action was three years (see CPLR 214, subd 6). Effective July 1, 1975, while plaintiff’s treatment was continuing, the period was reduced to two and one-half years (see CPLR 214-a, added L 1975, ch 109, § 6). If section 214-a governs, then plaintiff’s action is time-barred, more than 32 months having elapsed between plaintiff’s last visit and service of summons.

Resolution of this question depends on whether the continuous treatment doctrine delays the action’s accrual or only tolls the running of the Statute of Limitations. If the former, then plaintiff’s action is barred. Although the cases speak of the doctrine in terms of when the action “accrues” (see, e.g., Greene v Greene, 56 NY2d 86, 93-95; Davis v City of New York, 38 NY2d 257, 259, supra; Borgia v City of New York, 12 NY2d 151,155, supra), that term in this context is not strictly accurate. Section 214-a speaks to computing the limitation period in terms of “the act, omission or failure complained of”, not of the entire course of treatment. And, there is a certain illogic in stating that no action is ripe — i.e., it does not “accrue” — until after treatment ends. Continuous treatment has nothing to do with the initial act of negligence. While such treatment itself may be negligent, that would give rise to a different cause of action and would not actually affect the original “act, omission, or failure complained of”. Rather than define the action’s accrual in terms of the doctrine, it is defined in terms of when the original negligent act occurred. Continuous treatment serves simply as a toll — the action may be brought at any time, but the patient will not be compelled to initiate judicial proceedings so long as the physician continues to treat the injury (see Borgia v City of New York, supra).

The action having accrued in 1974, the three-year Statute of Limitations then in effect attached. Torre’s continuing treatment of plaintiff, if any, served to toll the running of the statute, but not to truncate it by imposing the lesser time limit of section 214-a. Thus, whenever treatment of plaintiff is found to have ended, a three-year time period for bringing suit should be imposed.

Finally, it must be determined whether the continuous treatment doctrine can be applied to Laboratories. In essence, this would require imputing Torre’s continuing treatment, if any, to Laboratories, which performed a single, discrete act in May, 1974. Under the circumstances of this case, there is no justification for imputing the continuous treatment.

The policy underlying the continuous treatment doctrine seeks to maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure (see Borgia v City of New York, supra). Implicit in the policy is the recognition that the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so.

These considerations do not apply to an independent laboratory. In this context, the inquiry necessarily must be directed to the nature of a laboratory’s relationship to the patient (see McQuinn v St. Lawrence County Lab., 28 AD2d 1035,1036, mot for lv to app den 21 NY2d 644). Generally, a laboratory neither has a continuing or other relevant relationship with the patient nor, as an independent contractor, does it act as an agent for the doctor or otherwise act in relevant association with the physician. A laboratory does not have the opportunity to discover an error in a report. Instead, it must rely on the treating physician to discover any diagnostic mistake. Therefore, the policy underlying the continuous treatment doctrine generally will not apply to the independent laboratory.

Here, the record is devoid of any evidence introduced by plaintiff to justify departing from this general rule. Nothing in the record shows that Laboratories was other than an independent contractor with no continuing relation to plaintiff or that there was any agency relation with Torre. Its misdiagnosis occurred in May, 1974. Under the Statute of Limitations then in effect, suit must have been commenced by May, 1977. Plaintiff did not serve Laboratories until August, 1979. Having been brought too late, her action against Laboratories should be dismissed.

Accordingly, the order of the Appellate Division should be modified, with costs to the corporate defendants against plaintiff and to plaintiff against defendant Torre, in accordance with this opinion and, as so modified, affirmed. The question certified should be answered in the negative.

Jasen, J.

(dissenting in part). While I agree that the action against the defendant Laboratories should be dismissed and that the plaintiff’s action is governed by the three-year Statute of Limitations contained in CPLR 214 (subd 6), I would hold that, upon the circumstances disclosed in this record, the plaintiff is precluded, as a matter of law, from invoking in this malpractice action the doctrine of “continuous treatment” (Borgia v City of New York, 12 NY2d 151). Therefore, as to defendant Torre, I vote to reverse and to dismiss plaintiff’s action as barred by the three-year Statute of Limitations.

According to plaintiff’s affidavit in opposition to the defendants’ motion to dismiss the complaint, plaintiff had been under the care of defendant Torre, a dermatologist, for a variety of skin disorders. On May 10, 1974, Torre removed a d.ark mole from plaintiff’s ankle. One week later, plaintiff was advised by Torre that a pathology report based on a specimen from the mole “was negative, and, therefore nothing further had to be done.” (Emphasis supplied.,)

Over the next two years, plaintiff consulted with Torre on at least eight occasions, the last visit apparently being on September 13, 1976. Although these visits were in connection with other ailments, plaintiff complained to Torre about a grayish color and inflammation in the area where the mole had been removed. On each occasion, Torre, after re-examining the ankle, assured plaintiff that there was no reason to worry.

In May of 1978, plaintiff discovered a lump in her groin that was later determined to be a malignant melanoma. In June of 1978; plaintiff underwent further surgery to remove another malignancy from the area where Torre had removed the mole four years earlier. As a result of yet another operation, plaintiff has been left with a variety of permanent injuries, including a severe limp.

The gist of plaintiff’s action is that defendant Torre misdiagnosed her condition and was negligent in removing the mole from her ankle. Defendant Torre was served with the summons and complaint on July 5, 1979. Because the action was commenced more than five years after the initial misdiagnosis and negligent removal of the mole, plaintiff has invoked the “continuous treatment” doctrine so as to toll the running of the applicable three-year limitations period until September 13,1976, the date of her last visit with defendant Torre.

A majority of this court has concluded that questions of fact exist concerning the applicability of the “continuous treatment” doctrine to this case. In support of this conclusion, the majority states,.without citation of authority, that a “complete discharge” of a patient by a physician does not preclude a finding of “continuous treatment” in situations where the discharged patient, without being requested by the physician to do so, makes “a timely return visit * * * to complain about and seek treatment for a matter related to the initial treatment.” (At p 406.) I cannot agree.

The general rule is that an action for malpractice accrues and the Statute of Limitations begins to run on the date of the alleged act of malpractice. In Borgia v City of New York (12 NY2d 151, supra), this court recognized an exception to this rule in instances where “the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.” (12 NY2d, supra, at p 155 [emphasis supplied].) In Borgia, however, the court readily acknowledged that the “continuous treatment” doctrine had its limitations. Indeed, “continuous treatment” was carefully defined to mean “treatment for the same or related illness or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship.” (12 NY2d, supra, at p 157 [emphasis supplied].) Thus, to invoke the doctrine successfully so as to avoid the otherwise applicable Statute of Limitations, a plaintiff must demonstrate: (1) that “treatment” subsequent to the malpractice was, in fact, rendered; and (2) that there was no disruption in the course of treatment from when the malpractice originally occurred.

The continuity aspect of the doctrine was clarified and, in a sense, amplified in Davis v City of New York (38 NY2d 257). In Davis, the decedent was examined by a city cancer detection center in connection with a lump on her breast on February 26, 1968. Decedent was advised at that time “that there was nothing to be concerned about and to return in two years.” (38 NY2d, supra, at p 259.) A year later, in February of 1969, decedent returned to the center for further examination in response to a mail communication from the center. In December of 1969, after being advised by her family physician to consult a surgeon regarding the condition of her breast, decedent telephoned the center and was told by a receptionist that she would be called back for further examination in February or March of 197Q. Subsequently, a letter was sent by the center scheduling an appointment on February 17, 1970. Decedent underwent a radical mastectomy on January 22, 1970, which disclosed the widespread presence of cancer. A notice of claim was served on the city on April 13,1970. In dismissing the action for failing to file a timely notice of claim, this court determined, as a matter of law, that the decedent was not under the “continuous treatment” of the diagnostic center because the medical services rendered by the center were “intermittent rather than continuous”. (38 NY2d, supra, at p 260.) Specifically, it was held that “the medical services rendered by the center in February, 1968 in legal contemplation were discrete and complete. The same was true of any medical service rendered the following February.” (Id.)

In the present case, it can be assumed that the periodic re-examinations of plaintiff’s ankle undertaken by defendant Torre at plaintiff’s behest in the two years following the alleged malpractice constituted “treatment”. Nevertheless, plaintiff, as a matter of law, has failed to demonstrate that this treatment was “continuous”. According to her own affidavit, plaintiff was advised by defendant Torre after the removal and testing of the mole that “nothing further had to be done.” Thus, Torre considered plaintiff’s treatment to be complete and he did not request plaintiff to return for further examinations in connection with the ankle. Rather, it was plaintiff’s complaints which caused Torre to re-examine her ankle during subsequent visits to his office in connection with other ailments. However, the initial “treatment”, out of which arose the alleged acts of malpractice, having been completed, these later examinations were no different than was the treatment rendered to the decedent in Davis, to wit: “discrete and complete” services in legal contemplation and, therefore, “intermittent rather than continuous” in nature.

In view of our decision in Davis, the majority’s reliance on Fonda v Paulsen (46 AD2d 540) for purposes of determining whether there has been continuity in treatment is misplaced. Fonda was decided prior to Davis, and the Fonda court itself acknowledged that “[t]here is no New York case which supplies an adequate definition of the term ‘continuous’ as it applies to treatment in a malpractice case”. (46 AD2d, supra, at p 543.) That jurisprudential gap having since been filled by our decision in Davis, Fonda, to the extent that it is to the contrary, is not an accurate statement of the law in this area.

In my view, whether treatment has been “continuous” for purposes of a medical malpractice action should not be determined from the perspective of a discharged patient’s desire to have his physician conduct a re-examination concerning a matter for which treatment already has been completed. (See, e.g., Florio v Cook, 65 AD2d 548, affd 48 NY2d 792.) Rather, whether there has been continuity in treatment should depend upon the medical services actually rendered. (See Davis v City of New York, supra.) Indeed, the policy underlying the “continuous treatment” doctrine is that it would be “absurd” to require a malpractice victim to interrupt ongoing, corrective treatment by commencing a lawsuit against the negligent physician. (Borgia v City of New York, 12 NY2d 151,156, supra.) That policy, however, is not advanced where, as here, the treatment is completed and the patient is specifically informed that “nothing further had to be done.” Once treatment has ended and the patient has been discharged, later complaints about the same ailment should not serve to revive the expired course of treatment and thereby delay further the commencement of the statutorily prescribed limitations period. Statutes of repose such as CPLR 214 seek to finally put to rest stale claims. The view adopted by the majority today will only frustrate that purpose.

Since the plaintiff has failed to demonstrate, by a sufficient evidentiary showing, that the “continuous treatment” exception should be applied, I would dismiss the action against defendant Torre.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur with Chief Judge Cooke; Judge Jasen dissents in part and votes to reverse in a separate opinion.

Order modified, etc.

      . The other defendant laboratories — National Health Laboratories, Inc., and National Health Laboratories, Inc. (a Delaware corporation) — are the successors to Central Health Laboratories, Inc. Defendant Revlon Corporation is the parent company of the Delaware corporation. All four entities will be referred to by the single term “Laboratories”.

      . Although nothing properly in the record reflects the exact dates of plaintiff’s consultations, this court accepts for the purpose of this appeal that September 13, 1976 was the date of plaintiff’s last visit.

      . Ju is not a party to this appeal.

      . Plaintiff later commenced a contract action against Laboratories. Special Term dismissed this as being essentially a malpractice action and, hence, time-barred. The Appellate Division affirmed and plaintiff apparently has abandoned the cause before this court.

       As to claims for malpractice with respect to acts, omissions and failures occurring after June 30, 1975, CPLR 214-a provides that “the term ‘continuous treatment’ shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition.” Although not applicable to plaintiff’s action, it is doubtful whether a series of examinations, without more, even constitutes “treatment” under CPLR 214-a.