author: Gabrielli, J.

text:
    Hewlett Associates et al., Appellants, v City of New York et al., Respondents. Hewlett Associates, et al., Appellants, v Finance Director of the City of New York, Respondent. (And Another Proceeding.)
    Argued October 14, 1982
    decided November 16, 1982

      POINTS OF COUNSEL

      Charles G. Moerdler, Alan Kolod and Amy S. Klein for appellants.
    I. The 1971 version of section 421-a of the Real Property Tax Law grants tax exemption to the entirety of section 421 multiple dwellings and not merely to residential space within those multiple dwellings. (Rosario v Koss, 26 AD2d 561, 590; Reynolds v Village of Nyack, 258 App Div 667; People v Barfs Rest. Corp., 42 Misc 2d 1093; Matter of Capone v Weaver, 6 NY2d 307; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Matter of Manhattan Cable TV Serv., Div. of Sterling Information Servs. v Freyberg, 49 NY2d 868; Matter of Burnham, 112 Misc 560, 196 App Div 948, 232 NY 506.) II. The 1975 amendment to section 421-a of the Real Property Tax Law vindicated the exempt status of accessory use space in all multiple dwellings constructed under the section 421-a program. (Teleon

      Realty Corp. v City of New York, 68 AD2d 858, 50 NY2d 824; Auswin Realty Corp. v Kirschbaum, 270 App Div 334; Schieffelin v Craig, 183 App Div 515; Matter of Button v Slater, 198 Misc 1.)

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (Gary Schuller and Edith I. Spivack of counsel), for respondents.
    I. Real property tax assessments cannot be collaterally attacked in a plenary action; certiorari provides the sole and exclusive remedy for the relief sought by appellants. (Young Women’s Christian Assn. of City of N. Y. v City of New York, 217 App Div 406, 245 NY 562; Sikora Realty Corp. v City of New York, 262 NY 312; Stabile v Half Hollows Hills Cent. School Dist. of Huntington & Babylon, 83 AD2d 945; Cablevision Systems Dev. Co. v Board of Assessors of County of Nassau, 69 AD2d 828,49 NY2d 866; Matter of Alwalt Realty Corp. v Boy land, 5 Misc 2d 1061, 4 AD2d 940; Cedzich v City of New York, 19 Misc 2d 572; Slater v Gallman, 38 NY2d 1; Thompson-Starrett Co. v City of New York, 5 Misc 2d 576; Dun & Bradstreet v City of New York, 276 NY 198; Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 41 NY2d 816.) II. Dismissal of these actions was proper inasmuch as Teleon Realty is stare decisis on the issues sought to be raised herein. Moreover, even if this were not the case, appellants’ construction of section 421-a of the Real Property Tax Law is infirm on the merits. (People v Hobson, 39 NY2d 479; People ex rel. Hatch v Reardon, 184 NY 431, 204 US 152; Matter of De Mott v Notey, 3 NY2d 116; Matter of 140 Riverside Dr. v Murdock, 276 App Div 550; Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 41 NY2d 816; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; Bronx Garment Center v City of New York, 199 Misc 513, 279 App Div 1048; Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222; County of Herkimer v Village of Herkimer, 251 App Div 126, 279 NY 560.)
   OPINION OF THE COURT

Gabrielli, J.

This appeal involves the application of a 1975 amendment to section 421-a of the Real Property Tax Law to multiple dwellings built before the amendment’s effective date. Although a prior decision of this court has apparently-determined this issue (see Teleon Realty v City of New York, 50 NY2d 824, affg on mem below 68 AD2d 858), appellants question the correctness of that holding. We conclude that the 1975 amendment is applicable to appellants’ buildings and overrule our prior decision in Teleon Realty to the extent that it may conflict with our holding herein.

In 1971, the Legislature, responding to the serious housing shortage in New York City, enacted section 421-a of the Real Property Tax Law. As originally enacted, this statute provided that new multiple dwellings, on which construction commenced after July 1, 1971 and before January 1, 1973 and was completed no later than December 31, 1974, “shall be exempt from taxation for local purposes” (L 1971, ch 1207, § l). To be eligible for exemption, construction was to be undertaken on vacant or underutilized land or on land improved with a nonconforming use. So that the city would suffer no loss of revenue, the statute required that taxes still be paid in an amount equal to the taxes paid on the vacant or underutilized land in the year preceding construction (the so-called “mini-tax” provision). In exchange for the tax exemption, rents to be charged upon initial occupancy were to be set at least 15% less than the prevailing rents for comparable units and were thereafter to be subject to rent stabilization laws. The exemption afforded under the statute has been extended periodically to multiple dwellings on which construction began in later years.

The intent behind the exemption is clear. The Legislature hoped to encourage the construction of new, generally available, multiple-unit residential buildings on previously underutilized property. The city determined, however, that this goal was not furthered by extension of the exemption to what is termed “accessory use space” — those areas of a multiple dwelling, such as parking areas, laundry rooms and community facilities, which are considered merely incidental to the residential space. Accordingly, from July 1, 1971 until July 1, 1975, the city refused to exempt that portion of the multiple dwelling’s floor area devoted to such uses. As regards mixed-use structures (i.e., those buildings having both commercial and residential floor space), the city denied exemption to the commercial space.

On August 9, 1975, the amendment to section 421-a, which is the subject of this appeal, was approved (L 1975, ch 857, § 1). This amendment, in addition to defining the term “multiple dwelling” for purposes of this statute for the first time and enacting numerous additional provisions not here relevant, provided that as of July 1, 1975, if the aggregate floor area of commercial, community facility and accessory use space exceeds 12% of the aggregate floor area of “any multiple dwelling granted tax exemption pursuant to this section on or subsequent to July [1,1971], there shall be a diminution of such tax exemption” in an amount equal to the excess of such space over 12%, “provided that no such exemption for commercial, community facility and accessory use space shall be applicable prior to July [1, 1975].” The city interpreted this amendment as . affording a 12% exemption of the area described for all multiple dwellings which were qualified to receive the section 421-a exemption, making no distinctions based upon the time that construction on the building commenced. Thus, from July 1,1975 until March 13,1980, the city granted the 12% exemption to all qualified section 421-a multiple dwellings, including those owned by appellants.

In March of 1980, however, the Appellate Division rendered its decision in Teleon Realty Corp. v City of New York (68 AD2d 858, 859, supra), and, in the course of its memorandum decision, commented that the “1975 amendment is by its terms not applicable to properties where construction was begun before January, 1975”, citing section 3 of the amending legislation. In apparent response to this statement, the city determined that it had incorrectly granted the 12% exemption to pre-1975 multiple dwelling owners and notified those owners, including appellants herein, that the 12% exemption would no longer be afforded their multiple dwellings.

Appellants then commenced the present article 78 proceeding and declaratory judgment action challenging this determination by the city. Appellants argued strenuously that the statements in Teleon Realty regarding the 1975 amendment’s applicability amounted to dicta, because the issue was never presented to the Appellate Division, which commented upon it gratuitously. Special Term determined, however, that notwithstanding the fact that the issue decided in Teleon Realty was unnecessary to the disposition of that case, the statements were intended as a guide for future conduct and as such could not be disregarded as dicta. Thus, the court held that appellants were not entitled to the 12% exemption afforded by the 1975 amendment.

The Appellate Division noted that appellants had argued persuasively that its statements in Teleon Realty may have been incorrect. In reaching that earlier decision, it had not had the benefit of the analysis presented on the instant appeal, nor had it been made aware of the fact that the city had itself interpreted the 1975 amendment to be applicable to pre-1975 multiple dwellings. The court, although apparently agreeing with the merits of appellants’ arguments, nevertheless felt constrained by our court’s affirmance of its decision in Teleon Realty “for reasons stated in the memorandum at the Appellate Division” (50 NY2d 824, 826, supra). Appellants were then granted leave to appeal to this court.

Preliminarily, it must be determined whether appellants may properly obtain the relief they seek by way of an article 78 proceeding or declaratory judgment action, or if they must, as respondents urge, pursue their claims by way of a tax certiorari proceeding (Real Property Tax Law, art 7; New York City Charter, §§ 163-165; Administrative Code of City of New York, § 166-1.0). Appellants press two arguments on this appeal: first, appellants contend that the city has wrongfully denied a full exemption for accessory use space in qualified multiple dwellings afforded by the initial version of section 421-a, and that the exemption is not limited by the 1975 amendment; and, second, appellants argue alternatively that the 1975 amendment affords them a 12% exemption for their combined commercial, community facility and accessory use space.

It is well recognized that where a challenge is made to the taxing authority’s jurisdiction over the subject property, the settled rule that review of a tax assessment may be obtained only by way of the statutory certiorari procedures is not applicable (Dun & Bradstreet v City of New York, 276 NY 198, 206; Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, affd on opn below 41 NY2d 816). Thus, if the claim is made that the subject property is wholly exempt from taxation, review by way of collateral proceedings is appropriate. Appellants argue that, insofar as they claim an entire exemption for their accessory use space, their case falls within this rule. We disagree with this contention, for even if appellants were granted the entire exemption for accessory use space that they seek, the property would still be subject to taxation by virtue of the “mini-tax” provision of section 421-a. Thus, inasmuch as the property is subject to some degree of taxation, the taxing authority has jurisdiction over it.

Such a challenge to jurisdiction, however, is not the only situation in which a taxpayer may properly forego the statutory procedure and mount a collateral attack on the taxing authority’s action. Although it has been stated frequently that taxpayers seeking partial exemption are relegated to tax certiorari proceedings for review of their assessment (e.g., Young Women’s Christian Assn. of City of N. Y. v City of New York, 217 App Div 406, 410, affd 245 NY 562; Cablevision Systems Dev. Co. v Board of Assessors of County of Nassau, 49 NY2d 866, 867), we have recognized that, at least under some circumstances, judicial review may be sought by other means. Thus, in Matter of Watchtower Bible & Tract Soc. of N. Y. v Lewisohn (35 NY2d 92), we held an article 78 proceeding to be an appropriate method of challenging the taxing authority’s action in withdrawing a previously afforded exemption, notwithstanding the fact that if the tax exemption were restored, it would only be a partial exemption. We noted that, under these circumstances, the matter did not involve a review of a tax assessment on grounds of partial exemption, for the apportionment between the taxable and exempt portions of the property had been previously determined and had not been challenged. The only relief sought was to have the taxing authority remove from the tax rolls property previously held to be exempt.

To the extent that appellants herein seek restoration of the 12% exemption for combined commercial, community facility and accessory use space, which exemption was previously granted but later withdrawn by the taxing authority, the case falls squarely within the holding of Watchtower Bible & Tract, and resort to tax certiorari proceedings was not required. Although appellants’ alternative claim to total exemption for accessory use space, which was never granted by the city, does not fall within that holding, we nevertheless conclude that, under the circumstances presented in this case, the relief sought may be pursued in the manner in which appellants have proceeded. Appellants are seeking only a legal interpretation of an exemption statute as to which no factual question is presented, and that interpretation is sought in connection with a claim properly brought by way of article 78 proceeding or declaratory judgment action. In this limited situation, we hold that appellants are not relegated to tax certiorari proceedings to seek review of the city’s alleged wrongful denial of the accessory use space exemption.

We turn, then, to the substantive issues raised on the appeal. Appellants, in seeking an interpretation of section 421-a and its 1975 amendment which would afford them a tax exemption for accessory use space, urge us to disregard certain statements made in Teleon Realty Corp. v City of New York (68 AD2d 858, affd on mem below 50 NY2d 824, supra), which are contrary to their position, as dicta. At issue in Teleon Realty was the proper method of computation of the “mini-tax” required by section 421-a. As noted previously, during the period of exemption, taxes must be paid on the property at least in an amount equal to that paid in the tax year preceding construction. The building involved, a pre-1975 multiple dwelling, contained 22 floors of commercial space and 30 floors of residential space, which were separately owned as part of a condominium plan. Plaintiffs and the city apparently agreed that the commercial and residential portions of the building should be separately assessed for purposes of computation of the mini-tax. Plaintiffs argued, however, that no taxes need be paid on the residential portion of the premises so long as the taxes paid on the commercial portion exceeded the mini-tax. Special Term, assuming the applicability of the 12% exemption afforded by the 1975 amendment, as did the parties, held that for the exemption period following the effective date of the amendment (July 1, 1975), the mini-tax should be computed as follows: the entire building should be assessed as a single unit; the normal tax established; the exemption diminished by the percentage of commercial floor area in excess of 12% of the aggregate floor area; and where, as in that case, there were separate owners of the commercial and residential areas, the net exemption should be apportioned between them and deducted from the respective taxes due.

The Appellate Division, in a memorandum subsequently adopted by this court, agreed that the exemption statute could not reasonably be interpreted as permitting taxes paid on the commercial space to discharge the obligation to pay the minimum tax, but stated that this did not mean that the residential portion should be assessed for the entire minimum tax. The court held that the commercial and residential portions of the property should be separately assessed and the minimum tax on the residential portion should be its appropriate portion of the dollar tax paid on the whole property for the base year. In reaching this conclusion, the Appellate Division expressly stated that the 1975 amendment granting the limited exemption to 12% of commercial space “is by its terms not applicable to properties where construction was begun before January, 1975” (68 AD2d, at p 859), and thereafter noted that, given the inapplicability of the exemption, it made no practical difference whether the trial court’s approach of assessing the building as a single unit or its own approach of assessing the two portions separately, were followed (68 AD2d, at p 860).

Notwithstanding appellants’ argument herein that the Appellate Division was never asked to pass upon the question of the general applicability of the 1975 amendment to pre-1975 multiple dwellings, inasmuch as its applicability was never disputed, we agree with the courts below that the statements may not be disregarded as dicta, because they contributed to the fixing of tax liabilities. We believe it important, however, that neither the Appellate Division nor this court was squarely presented with that question and that neither court had the benefit of the adversary presentation necessary to the proper resolution of so complex an issue. Indeed, the particular issue was in no way raised, briefed or addressed on oral argument in our court. Given this, and notwithstanding the critical importance of the role of precedent in our judicial system, we nevertheless conclude that a reassessment of the holding in Teleon Realty is warranted. Mindful of our obligation to properly interpret the terms of a statute and to effectuate legislative intent, we believe it proper to reevaluate the question passed upon in Teleon Realty in the context of the full adversary presentation now afforded us.

In interpreting the scheme of exemption provided by section 421-a and its amendments, we deal first with the scope of the exemption afforded under the original version of the statute (L 1971, ch 1207, § 1). The language of this initial enactment provided only that “[n]ew multiple dwellings * * * except hotels and structures containing less than ten dwellings units” shall be exempt from taxation for local purposes during a certain period. No definition of “multiple dwelling” was provided, nor was there any mention of either commercial space or accessory use space. That being so, we believe it proper to look to the definition of “multiple dwelling” contained in subdivision 7 of section 4 of the Multiple Dwelling Law: “a dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other”. “Dwelling” is defined in subdivision 4 of the same section of the Multiple Dwelling Law as “any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings”. The conception of the term “multiple dwelling” that arises out of these definitions fully supports appellants’ contention that the city improperly limited the scope of the exemption to strictly residential floor area. Areas customarily incidental to actual residential living area, such as laundry rooms, parking facilities, etc., should be considered as fully a part of the multiple dwelling as the living area itself. The cost of maintenance of such areas would ordinarily be an important factor in the establishment of rent. Thus, the Legislature’s goal of encouraging construction of affordable housing is furthered by the inclusion of such accessory use space within the scope of the exemption. Of course, this objective is not encouraged by extending the exemption to commercial areas, and the city quite properly interpreted the statute as excluding such space from tax exemption.

Our interpretation of the statute as affording exemption to accessory use areas in addition to living space is buttressed by the language of the 1975 amendment to section 421-a. The amendment provides that, as of July 1,1975, in the event that the aggregate floor area of commercial, community facility and accessory use space exceeds 12% of the aggregate floor area of a qualified section 421-a multiple dwelling, “there shall be a diminution of such tax exemption” in an amount equal to the excess of such space over 12% of the aggregate floor area (L 1975, ch 857, § 1 [emphasis added]). We believe that the language of diminution employed by the Legislature indicates its belief that at least some exemption of this nature had previously been afforded. Otherwise, there would be no need to speak in terms of diminution; rather, the exemption, if never previously granted, would more likely have been expressed in terms of an additional exemption.

Thus, we agree with appellants that the city has from the start improperly denied tax exemption to that space properly considered accessory use space. It remains to be determined, however, what effect, if any, the 1975 amendment has on the right of owners of pre-1975 multiple dwellings.

The amendment provides a 12% exemption for the commercial, community facility and accessory use space of “any multiple dwelling granted tax exemption pursuant to this section on or subsequent to July [1, 1971] provided that no such exemption * * * shall be applicable prior to July [1, 1975]”. If this were the only relevant language of the exemption’s applicability, we would have no difficulty in interpreting it as applicable to pre-1975 multiple dwellings, insofar as tax obligations arising after July 1, 1975 are involved. However, section 3 of chapter 857 of the Laws of 1975 further provides that: “This act shall take effect immediately and be retroactive to applications submitted for construction begun on or after January [1, 1975] provided, however, that this act shall not affect the rights and obligations imposed by section [421-a] upon construction begun before January [1, 1975] provided that such construction is completed prior to December [31, 1979]”. It is the latter part of this section which provides the seeming conflict and upon which the statements in Teleon Realty concerning applicability of the amendment are based.

Given this apparent conflict between two provisions of the same legislation, we must, if possible, resolve the conflict in a manner which effectuates the legislative intent, but which avoids rendering one of the provisions superfluous. Appellants urge that we resolve the conflict by holding that section 3 of chapter 857, the effective date provision, preserves the previous full exemption for accessory use space, while the exemption language grants an additional right to exemption of up to 12% of combined commercial, community facility and accessory use space (to the extent that the claimed accessory use space by itself does not exceed 12%). Although we agree with appellants that the 1975 amendment is applicable to pre-1975 multiple dwellings, we do not interpret the statutory scheme to grant an additional benefit to such multiple dwellings; rather, we conclude that the 1975 amendment was intended to limit the exemption previously afforded for accessory use space.

Our conclusion that the 1975 amendment is applicable to pre-1975 multiple dwellings rests upon the specific language of exemption employed therein. The 12% exemption is, by its terms, applicable to all multiple dwellings granted tax exemption pursuant to section 421-a on or subsequent to July 1, 1971. We decline to read the more general language of the effective date provision as rendering the 12% exemption afforded superfluous. To interpret the amendment as granting an additional exemption, as appellants suggest, however, would be to ignore that portion of the exemption language which provides that “there shall be a diminution of such tax exemption” to the extent that commercial and accessory use space is in excess of 12% of the aggregate floor area. Thus, we hold that appellants are entitled to the exemption set forth in the 1975 amendment, but are limited to the extent of exemption set forth therein.

Accordingly, the order of the Appellate Division should be reversed, with costs, the motions to dismiss denied, and the certified question answered in the negative.

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

Order reversed, etc.

      . The statute was originally numbered section 421 (L 1971, ch 1207, § 1), but was renumbered section 421-a by section 1 of chapter 110 of the Laws of 1977. For the sake of clarity, we refer to the statute solely by its current numbering.

      . Full exemption was granted during construction and for two years following completion of construction. Thereafter, the scope of the exemption was gradually reduced until, in the eleventh year following construction, the exemption was to be completely eliminated.

      . (L 1973, ch 480, § 1; L 1975, ch 857, § 1; L 1977, ch 560, 8 1; L 1981, ch 995, 8 1.) Additional provisions have been added to the statute through these several amendments.

        . “Multiple dwelling” is defined as: “A dwelling which is to be occupied or is occupied as the residence or home of three or more families living independently of one another, whether such dwelling is rented or owned as a cooperative or condominium”. This definition remains in the present law (Real Property Tax Law, § 421-a, subd 1, par c).

      . The Appellate Division decision was eventually affirmed by this court “for reasons stated in the memorandum at the Appellate Division” (50 NY2d 824, 826, supra).

      . The article 78 proceeding and declaratory judgment action are, in all relevant respects, identical in nature. Appellants have instituted both to ensure that they have pursued the proper procedural route to obtaining an interpretation of the 1975 amendment to section 421-a.
      Appellants also commenced a class action challenging the city’s failure to comply with sections 1510 and 1512 of the New York City Charter, in eliminating the 12% exemption after the close of the assessment rolls and without the required 10 days’ notice. Special Term granted appellants’ motion for summary judgment in this action. The Appellate Division affirmed this determination and denied respondents’ motion for leave to appeal to this court. Accordingly, the issues decided in the class action are not presented on this appeal.

      . The statute provides that taxes shall be paid during the period of exemption at least in the amount of taxes paid on the property during the tax year preceding the commencement of construction. In addition, although not set forth in the record on this appeal, appellants’ pre-1975 multiple dwellings are presumably subject to taxation by virtue of the phasing-out of the tax exemption during the 10 years following completion of construction.

      . We note that much of this definition was ultimately adopted by the Legislature for use in interpreting section 421-a. See footnote 4, supra.

      . As noted, we believe the exemption previously afforded was limited to accessory use space. It cannot be assumed that the Legislature intended to exempt commercial space under the original enactment.

      . Thus, we conclude that the statements in Teleon Realty to the contrary are erroneous and overrule the decision therein to that extent.

      . This interpretation does not, as appellants urge, necessarily render the effective date provision superfluous. Numerous other provisions were added to section 421-a by the amending legislation, and the general language regarding its effective date and the effect of the amendment upon owners of pre-1975 multiple dwellings presumably would apply to those provisions which do not contain specific language indicating a contrary intent.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v New York Trap Rock Corp., Appellant.
    Argued October 11, 1982
    decided November 16, 1982

      POINTS OF COUNSEL

      Jennifer L. Van Tuyl for appellant.
    I. The ordinance is unconstitutionally vague as applied to defendant. (Grayned v City of Rockford, 408 US 104; People v Smith, 55 NY2d 613; People v Cruz, 48 NY2d 419; People v Scott, 26 NY2d 286; People v Haff, 53 NY2d 997; People v Glubo, 5 NY2d 461; People v Byron, 17 NY2d 64; United States v Mazurie, 419 US 544; People v Pagnotta, 25 NY2d 333; Exxon Corp. v Bushbee, 644 F2d 1030.) II. As applied to defendant this ordinance is directly in conflict with the provisions of the State Penal Law. (People v Munoz, 9 NY2d 51; People v Wilkerson, 73 Misc 2d 895; People v Conte, 64 Misc 2d 573; People v Cook, 34 NY2d 100; People v Judiz, 38 NY2d 529; People v Lewis, 295 NY 42; People v Beach Med. Arts Lab., 85 Misc 2d 1078; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327, 12 NY2d 998; People v O’Neal, 93 Misc 2d 953; People v Monnier, 280 NY 77.) III. The conventional tools of statutory interpretation cannot avoid a declaration of unconstitutionality and certainly cannot sustain the conviction. (Lighthouse Shores v Town of Islip, 41 NY2d 7; Grayned v City of Rockford, 408 US 104; Coates v Cincinnati, 402 US 611; Phillips v Borough of Folcroft, Pa., 305 F Supp 766; People v Grogan, 260 NY 138; People v Hardy, 47 NY2d 500; People

      v Bakolas, 108 Misc 2d 74; Reeves v McConn, 631 F2d 377, 638 F2d 762; People v Thomas, 96 Misc 2d 574; People v Markovitz, 102 Misc 2d 575.) IV. The conviction violated the rules governing construction of penal enactments. (People v Mobil Oil Corp., 48 NY2d 192; Hoey v Gilroy, 129 NY 132; People v Marrero, 71 AD2d 346; People v O’Donnell, 61 Misc 2d 194; Matter of Asheroff v Parking Violations Bur. of Transp. Admin, of City of N. Y., 38 AD2d 474; People v Thomas, 96 Misc 2d 574.) V. The court improperly placed the burden of proof on defendant. (People v St. Agatha Home for Children, 47 NY2d 46; People v Scott, 26 NY2d 286; People v Markovitz, 102 Misc 2d 575; People v Harding, 37 NY2d 130; People v Kibbe, 35 NY2d 407; Haber v Paramount Ice Corp., 239 App Div 324, 264 NY 98; Boomer v Atlantic Cement Co., 26 NY2d 219.)

      David D. Hagstrom, Town Attorney {Anthony J. De Rosa of counsel), for respondent.
    I. The town has the authority to enact a noise ordinance. (Stoffel Seals Corp. v Village of Tuckahoe, 206 Misc 597; Matter of Fetsch v Police Justice Ct. of Vil. of Sands Point, 7 AD2d 854.) II. A noise ordinance may use reasonable terms to describe prohibited conduct. (People v Smith, 44 NY2d 613; People v Cruz, 48 NY2d 419; Matter of Mendes, 104 Misc 2d 357; Miller v California, 413 US 15; U. S. Labor Party v Pomerleau, 557 F2d 410; People v Lewis, 13 NY2d 180; People v Nappi, 18 NY2d 136; People v Di Raffaele, 100 Misc 2d 634; Rose v Locke, 423 US 48; People v Cook, 34 NY2d 100.) III. The town’s noise ordinance and the State criminal nuisance statute are consistent and complimentary. (People v Mann, 31 NY2d 253; People v Judiz, 38 NY2d 529; City of New York v Claflington, Inc., 40 Misc 2d 547; People v Conte, 64 Misc 2d 573; Sonmax, Inc. v City of New York, 43 NY2d 253; Town of Clifton Park v C. P. Enterprises, 45 AD2d 961; Belle v Town Bd. of Town of Onondaga, 61 AD2d 352.) IV. The words of the statute are commonly understood and the strong presumption of constitutionality has not been rebutted. (Lighthouse Shores v Town of Islip, 41 NY2d 7; People v Pagnotta, 25 NY2d 333; People v Harvey, 307 NY 588.) V. Defendant was proved guilty beyond any reasonable doubt.
   OPINION OF THE COURT

Fuchsberg, J.

In a misdemeanor prosecution tried without a jury in Justice Court, the defendant, New York Trap Rock Corporation, which operates a quarry in the Town of Poughkeepsie, has been found guilty and given a maximum fine of $100 for violating the town’s Unnecessary Noise Control Ordinance, a local law which, the Town Attorney tells us, was fashioned along guidelines provided by the State’s Department of Environmental Conservation. The Appellate Term having affirmed without further opinion, the case is now here by leave of a Judge of this court pursuant to CPL 460.20. On this appeal, the defendant presses, in the main, two questions: Is the ordinance pre-emptive of or inconsistent with State law? If not, does the ordinance offend the constitutional void-for-vagueness doctrine of due process? In the alternative, by way of trial error the defendant argues that, in effect, the Judge placed the burden of proof on the defendant instead of on the People.

FACTS

The defendant corporation owns and operates the quarry occupying Clinton Point, a 1,200 acre site on the east bank of the Hudson in the southwesterly portion of the town. The property, one of the Nation’s leading sources of crushed dolomitic stone, has been mined for this resource since at least the nineteenth century and, since the advent of land planning, is zoned in accordance with its prior use. As an integral part of defendant’s operation, the stone, as quarried, is trucked to an on-site plant for crushing.

In more recent times, a tract north of the defendant’s land was developed into a quarter-acre residential subdivision. Thereafter, to minimize whatever noise is produced in the regular course of the quarrying, as well as to provide a visual block, the corporation, at great expense, separated itself from the residential area by erecting a large sound-absorbing berm in the form of a 3,900 foot earthen wall, whose base ranges from 100 to 150 feet in width and whose 30-foot height is topped by a stand of trees; acting as additional buffers are a 250-foot strip of land and an adjacent area occupied by a power line easement.

Since 1965, the quarry has operated on two shifts, one from 7:00 a.m. to 3:30 p.m. and the other from 4:30 p.m. to 1:00 a.m. No drilling or blasting is conducted on the later shift, but, to meet normal market demand, loading of the stone produced during the earlier one continued through both. For decades, loading of the loosened precrushed stone has taken place at least 2,500 feet from the boundary of the nearest residential area, from where it is hauled to the crushing plant, itself located more than a mile from the nearest residence. This schedule and procedure the defendant followed uneventfully until July 18, 1980. It then learned for the first time that three of the residents of the subdivision had made criminal complaints on the basis of which three informations, each relating to the identical nighttime loading operations of June 26, 1980 (one as of “about 11:01 PM”, the second as of “about 11:05 PM” and the third as of “about 11:16 PM”) and each accusing the defendant of “loud and unnecessary noises”. After a joint trial of the informations, the trial court ruled that they comprised but “one single alleged criminal transaction”.

THE ORDINANCE

It was only some three years earlier that the town, in 1977, had adopted the ordinance with which we here are concerned. At its heart is its section 3.01, which, after a blanket provision that “[n]o person shall make * * * any unnecessary noise”, defines the last phrase, among other things, as “any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a person”.

Section 2 of the ordinance lists 10 “standards to be considered in determining whether unnecessary noise exists in a given situation”, while expressly stipulating that these are not to be exclusive. The 10 are as follows:

“(a) the intensity of the noise
“(b) whether the nature of the noise is usual or unusual
“(c) whether the origin of the noise is natural or unnatural
“(d) the volume and intensity of the background noise, if any
“(e) the proximity of the noise to sleeping facilities
“(f) the nature and the zoning districts of the area within which the noise emanates
“(g) the time of day or night in which the noise occurs
“(h) the time duration of the noise
“(i) whether the sound source is temporary
“(j) whether the noise is continual or of a periodic or impulsive character”.

As if to emphasize the nonexclusivity of this decalogue, it also is preceded by section 3.00, which consists of a single sentence reading: “Any act or violation of any of the provisions of this ordinance is deemed to be in violation of Section 3.01 * * * without in any way limiting the generality of the provisions of section 3.01”.

Next, its section 3.02, in referring to 17 acts which will violate the ordinance if they create “unnecessary noise”, qualifies these too by declaring that “any enumeration herein shall not be deemed to be exclusive”. Of the 17, defendant was charged with the violation of only one, subdivision (e), which, after mentioning “the loading or unloading of any vehicle * * * so as to create unnecessary noise at the adjoining property line”, adds that, “[wjithout limiting the above language, it shall be a violation * * * to load or unload any vehicle * * * between the hours of 11:00 P.M. and 7:00 A.M. within 300 feet of the boundary lines of a residential district”.

Defendant’s conviction was for violating the general provisions of section 3.01 and that part of subdivision (e) of section 3.02 which prohibits loading which creates “unnecessary noise at the adjoining property line”. The court found no evidence to support the violation of that part of subdivision (e) of section 3.02 which prohibits loading within 300 feet of a residential district. In announcing these decisions, it also overruled the defendant’s constitutional contention.

ISSUES

I

Defendant advances contentions, first, that the ordinance, “in imposing criminality without proof of any of the five elements required by Penal Law section 240.45, is unconstitutionally inconsistent with State law” and, second, that “in punishing ‘noises’ that offend individual persons, [the ordinance] has exceeded the delegated authority in Town Law Section 130 (11)”. The first, that of “pre-emption”, takes the tack that the town is utterly without any right to act at all. The second, that of “inconsistency”, asserts that, while local enactments on the subject of the ordinance are permissible, the present one is in conflict with existing State law. We reject both arguments.

There is nothing in section 240.45 of the Penal Law, the criminal nuisance statute, to indicate an intention by the Legislature, directly or indirectly, to restrict the town’s power to enact a noise ordinance. To the contrary, by section 10 (subd 1, par [ii], cl a, subcl [12]) of the Municipal Home Rule Law, local governments have been given broad authority to adopt ordinances governing the safety, health and well-being of those within their jurisdictions and, moving from the general to the particular as it affects this case, by subdivision 11 of section 130 of the Town Law, towns have received specific authority to regulate noise in their communities, the latter the surest indication that the State has not intended to restrict the regulation of noise to itself (see, also, NY Const, art IX, § 2, subd [c], par [ii], cl [10]).

These authorizations are not undermined by section 240.45. True it is that, in prohibiting conduct which unreasonably endangers the “safety or health of a considerable number of persons”, this statute, though it does not do so in so many words, may be applied in circumstances involving

excessive and unreasonable noise. However, the Municipal Home Rule Law, designed as it is to make government more responsive to the needs of particular localities, makes this possibility one of little moment, for, wherever practicable, it encourages reconciliation of State and local laws (see Municipal Home Rule Law, § 51)..

Thus, that an ordinance has some connection with a subject upon which a State statute exists does not automatically vitiate it on that account (People v Judiz, 38 NY2d 529, 531-532). It is, therefore, well settled that, if a town or other local government is otherwise authorized to legislate, it is not forbidden to do so unless the State, expressly or impliedly, has evinced an unmistakable desire to avoid the possibility that the local legislation will not be on all fours with that of the State (Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; People v Cook, 34 NY2d 100, 109).

In sum, unless one were to essay the narrowest of constructions, it cannot be said that the town’s antinoise ordinance, in any meaningful respect, allows what State law forbids or forbids what State law allows.

II

Turning then to the- void-for-vagueness doctrine, we begin our analysis by a brief review of the reasons why it at times has been called “the first essential of due process of law” (Connally v General Constr. Co., 269 US 385, 391).

As we have had occasion to reiterate in recent years, a prime purpose is to meet “the constitutional requisite that a statute be ‘informative on its face’ (People v Firth, 3 NY2d 472, 474) * * * to assure that citizens can conform their conduct to the dictates of the law” (People v Illardo, 48 NY2d 408, 413). To this end, nothing less than “adequate warning of what the law requires” will do (People v Cruz, 48 NY2d 419, 424, app dsmd 446 US 901).

Of equal concern is the prevention of “arbitrary and discriminatory enforcement by requiring ‘boundaries sufficiently distinct’ for police, Judges and juries to fairly administer the law” (People v Cruz, supra, at p 424, citing United States v Petrillo, 332 US 1, 7). “As common sense and experience both tell us, unless by its terms a law is clear and positive, it leaves virtually unfettered discretion in the hands of law enforcement officials (People v Illardo, supra, at pp 413-414).

These principles before us, we recognize that noise regulation poses special problems of draftsmanship and enforcement. The nature of sound makes resort to broadly stated definitions and prohibitions not only common but difficult to avoid. In an effort to accommodate the limitations of language and constitutional conformity, antinoise cases therefore have tended to find regulations valid when they apply within limited contexts which may convey what in Cruz was called “an accepted meaning” (48 NY2d, at p 428) to such otherwise imprecise words as “loud” or “excessive” (e.g., People v Byron, 17 NY2d 64 [“excessive or unusual” noise emanating from a muffler upheld because within ken of any ordinary motorist’s common knowledge]; Grayned v City of Rockford, 408 US 104 [“noise or diversion” which present “imminent threat of violence” adjacent to a school upheld]; State v Dorsett, 3 NC App 331 [“unreasonably loud, disturbing and unnecessary noise” upheld as applied to motorcycles]).

In contrast to limited context legislation, those in which there was no setting from which vague words could take on a reasonable degree of definitiveness have not survived (e.g., United Pentecostal Church v Steendam, 51 Mich App 323; City of Columbus v Becher, 173 Ohio St 197; Gardner v Ceci, 312 F Supp 516).

So measured, the Town of Poughkeepsie ordinance obviously is one drafted as broadly as possible, presumably in what no doubt was a well-intentioned attempt to cover every conceivable noise that a complainant or a law enforcement officer might decide it appropriate to pursue. It is precisely on this purposeful generality that the defendant would have us conclude that section 3.01 and subdivision (e) of section 3.02 of the ordinance are unconstitutionally vague as applied to it.

First, examining the seemingly more specific of these provisions, subdivision (e) of section 3.02, it is apparent that, while the defendant could readily identify with the loading and unloading verbiage, the only concrete thing to which it could look for a norm of expected conduct was the ensuing sentence, which specified that “unnecessary noise” was not to be created “within 300 feet of the boundary line of a residential district”. All well and good, but defendant, on reading this language, could hardly be expected to have noticed, as mandated by the first prong of the vagueness test, that, because the sentence starts with the unreasonably uninformative phrase “[w]ithout limiting the above language”, it would commit the charged crime even when its loading activity took place not merely 300 feet, but 2,400 feet from the boundary.

The picture this portrays is still more egregious when we consider that the identical conduct also resulted in conviction under section 3.01, which generally prohibited the making of “any unnecessary noise”. This section is permeated with vagueness. Among other things, for instance, the disjunctive definition of “unnecessary noise” as “any excessive or usually loud sound or any sound which * * * annoys * * * a person” (emphasis added) impermissibly would support a conviction on any sound which annoys another person, for it could rest solely upon the “malice or animosity of a cantankerous neighbor” (Miller v Valley Forge Vil., 43 NY2d 626, 632 [Cooke, J., dissenting]) or “boiling point of a particular person” (Ashton v Kentucky, 384 US 195, 200 [Douglas, J.], supra), situations which are the product, not only of imprecise standards, but of no standard at all (see, also, Gregory v Chicago, 394 US 111, 118, 124-125; Connally v General Constr. Co., 269 US 385, 391, supra).

The 10 “specific” standards by, which section 2 of the ordinance self-servingly suggests the presence of “unnecessary noise” may be unearthed fare no better. Nothing but abstract lines of inquiry, none of the 10 provides a guideline for the perplexed would-be noisemaker. From whose point of view are the “intensity”, “proximity”, “duration”, “time” and other subjective concepts which it would submit for consideration to be judged? How is a future defendant to know whether the “usual or unusual” prescription of the second of these “standards”, or the “natural or unnatural” one of the third, or the “continual” or “periodic” or “impulsive” character of the tenth is the alternative to be preferred? Moreover, what if one somehow can accord with all these “standards”, but still annoys another? Perhaps worst of all, since the “standards” to be applied are “not limited” to the listed ones, where does the defendant-to-be go from there?

Overall, in whole and in many of its parts, as indicated, the pervasive nature of its catchall effect makes the ordinance not only a ready candidate for ad hoc and discriminatory enforcement but one whose defects are not remediable by a narrowing construction (see Grayned v City of Rockford, 408 US 104, 111, supra).

CONCLUSION

The Unnecessary Noise Control Ordinance of the Town of Poughkeepsie is unconstitutional. The order of the Appellate Term should, therefore, be reversed and the informations dismissed.

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

Order reversed, etc.

      . (Bureau of Noise, NYS Dept of Env Cons, Local Noise Ordinance Handbook [1976].) We are also informed that the ordinance was patterned on a so-called Model Local Noise Ordinance drafted by the National Institute of Municipal Officers.

      . In pertinent part, section 240.45 of the Penal Law provides: “A person is guilty of criminal nuisance when: (1) By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly or recklessly creates or maintains a condition which endangers the safety or health of a considerable number of persons”.

      . “The town board * * * may enact * * * for the following purposes * * * 11. * * * preventing unreasonably loud or disturbing noises, determined by the board to be of a character, intensity or duration as to be detrimental to the peace, welfare or good order of the people”.

      . Our analysis of defendant’s vagueness contention is simplified by its concession that “(t)his is a non-first amendment case”. We therefore need not determine whether the ordinance is overbroad, a concept related to, but analytically distinct fropi, that of vagueness (see Tribe, American Constitutional Law, § 12-26, p 716), nor need we employ the vagueness doctrine as a “buffer zone of added protection at the peripheries of * * * Bill of Rights freedoms” (Note, Void-for-Vagueness Doctrine in the Supreme Court, 109 U of Pa L Rev, 67, 75), thereby more carefully scrutinizing the allegedly vague ordinance than if no First Amendment claim were involved (Ashton v Kentucky, 384 US 195, 200; People v Cook, 34 NY2d 100, 115). Although People v Illardo (48 NY2d 408) had First Amendment overtones, the speech involved there was determined to be unprotected and the case was, therefore, not decided on First Amendment grounds.


text:
    In the Matter of the Estate of Mary Davis, Deceased. Alameta Bergamon, as Executrix of Mary Davis, Deceased, Appellant; Ronald Hackett, as Commissioner of Cattaraugus County Department of Social Services, Respondent. In the Matter of the Estate of Mary Dann, Deceased. Richard C. Letson as Executor of Mary Dann, Deceased, Appellant; Ronald Hackett, as Commissioner of Cattaraugus County Department of Social Services, Respondent. In the Matter of the Estate of Eleanor F. Burke, Deceased. Margaret B. Murrellwright, as Executrix of Eleanor F. Burke, Deceased, Appellant; Monroe County Department of Social Services, Respondent.
    Argued August 30, 1982
    decided November 16, 1982

      POINTS OF COUNSEL

      Benjamin C. Perreault for appellants in the first and second above-entitled proceedings.
    I. There is no articulated legislative purpose for the recoupment provisions of section 369 (subd 1, par [b]) of the Social Services Law and such provisions appear to be a matter of legislative oversight. (Matter of Colon, 83 Misc 2d 344.) II. Needy persons 65 years of age and older who qualify for Medicaid and needy persons in the other categories who qualify for Medicaid are similarly situated with respect to recoupment of properly paid medical assistance. (Matter of Lee v Smith, 43 NY2d 453.) III. Under the New York State Constitution the intermediate level of scrutiny should be applied to the equal protection issue presented. (Tucker v Toia, 43 NY2d 1; Matter of Lee v Smith, 43 NY2d 453; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326; Board of Educ. v Nyquist, 83 AD2d 217.) IV. Under the traditional rational basis test of equal protection, section 369 (subd 1, par [b]) of the Social Services Law is unconstitutional. (Matter of Lee v Smith, 43 NY2d 453; Shapiro v Thompson, 394 US 618.)

      John W. Branch for appellant in the third above-entitled proceeding.
    I. Classification under section 369 (subd 1, par [b]) of the Social Services Law as to recoupment of medical assistance, depending on the age when aid was received has no reasonable basis and serves no legislative purpose. (Matter of Lee v Smith, 43 NY2d 453; Massachusetts Bd. of Retirement v Murgia, 427 US 307; May flower Farms v Ten Eyck, 297 US 266.) II. The arbitrary classification of recoupment rights from estates according to the age when the assistance was received is a denial of equal protection of the law. (Schlesinger v Wisconsin, 270 US 230.)

      Roger E. Pyle for respondent in the first and second above-entitled proceedings.
    I. Any challenge to the social services benefits provided the aged, blind or disabled persons must be judged by the “rational basis test.” (Massachusetts Bd. of Retirement v Murgia, 427 US 307; Dandridge v Williams, 397 US 471; Matter of Lee v Smith, 43 NY2d 453; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326.) II. There is a rational basis in the supplemental security income classification and the provisions of section 369 (subd 1, par [b]) of the Social Services Law. III. The New York State Constitution is not violated by section 369 (subd 1, par [b]). (Matter of Lee v Smith, 43 NY2d 453.) IV. The trial court’s decision correctly sustains the constitutionality of the statute in question.

      James A. Robinson and Milo I. Tomanovich for respondent in the third above-entitled proceeding.
    I. The executrix has failed to demonstrate beyond a reasonable doubt that section 369 (subd 1, par [b]) of the Social Services Law lacks any rational basis. (Matter of Malpica-Orsini, 36 NY2d 568; Montgomery v Daniels, 38 NY2d 41; McGowan v Maryland, 366 US 420; Board of Educ. v Nyquist, 57 NY2d 27; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Lee v Smith, 43 NY2d 453; Dandridge v Williams, 397 US 471; Shapiro v Thompson, 394 US 618; Tucker v Toia, 43 NY2d 1; Massachusetts Bd. of Retirement v Murgia, 427 US 307; Idaho Dept. of Employment v Smith, 434 US 100.) II. The statute herein (Social Services Law, § 369, subd 1, par [b]) does not limit or abridge any fundamental right of decedent or her heirs. (Schlesinger v Wisconsin, 270 US 230; Dandridge v Williams, 397 US 471.)

      Robert Abrams, Attorney-General {Alan W. Rubenstein and Peter H. Schiff of counsel), in his statutory capacity under section 71 of the Executive Law.
    Section 369 (subd 1, par [b]) of the Social Services Law, enacted to comply with the Federal Medicaid mandate, has a rational basis and is valid and constitutional; heightened scrutiny is neither necessary nor warranted. (Matter of Colon, 83 Misc 2d 344; Baker v Sterling, 39 NY2d 397; Harris v McRae, 448 US 297; Baxstrom v Herold, 383 US 107; Dandridge v Williams, 397 US 471; People v Ditniak, 28 NY2d 74; Matter of Posner v Rockefeller, 31 AD2d 352; McGowan v Maryland, 366 US 420; Carey Transp. v Triborough Bridge & Tunnel Auth., 38 NY2d 545, 429 US 830; Schweiker v Wilson, 450 US 221.)

      Toby Golick and Robert Freedman for Legal Services for the Elderly and Friends and Relatives of Institutionalized Aged, amicus curiae.

    Section 369 (subd 1, par [b]) of the Social Services Law unconstitutionally discriminates against persons 65 years old and older. (United States Dept. of Agric. v Moreno, 413 US 528; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326; Board of Educ. v Nyquist, 83 AD2d 217; Tucker v Toia, 43 NY2d 1; Matter of Lee v Smith, 43 NY2d 453.)
   OPINION OF THE COURT

Fuchsberg, J.

Given the large number of elderly citizens who qualify for Medicaid payments, the issue presented in common by these three appeals is one of broadsweeping application. It calls upon us to pass upon the constitutionality of section 369 (subd 1, par [b]) of our Social Services Law, New York’s implementation of title XIX of the Federal Social Security Act (US Code, tit 42, § 1396a, subd [a], par [18]). The provision at stake spells out the circumstances under which local social services agencies which actually disburse these payments may seek recoupment.

Title XIX, as relevant here, includes a scheme for funding medical assistance to persons over 65 who meet specified criteria. It also covers certain categories of needy persons under 65. To accomplish these goals, it provides grants-in-aid for State programs which meet Federal standards. Among these is a recoupment provision which, in each participating State, permits, but does not compel, post-65 payments to be recovered from a recipient’s estate, “and then only after the death of his surviving spouse, if any, and only at a time when he has no surviving child who is under age 21 or * * * is blind or * * * disabled” (US Code, tit 42, § 1396a, subd [a], par [18]). It is not disputed that these conditions are but minima, leaving a State free to adopt a plan which not only encompasses, but exceeds the Federal one (Matter of Cheng San Chen v Toia, 67 AD2d 1085, 1086, affd 50 NY2d 826).

Exercising this option," in New York our Social Services Law (§ 366) does more than undertake the obligations mandated by the Federal legislation. Among other things, it creates two additional categories of necessitous persons who are eligible for medical assistance. The first consists of persons under 65 with resources so limited that they are eligible for home relief (§ 366, subd 1, par [a], cl [1]). The second category is made up of persons under 65 who are compelled to incur medical costs because they are the victims of “catastrophic illness” (§ 366, subd 2, par [c]).

On the other side of the ledger, it activates title XIX’s permissive recoupment policy, which, as indicated, is applicable to post-65 payments alone (Social Services Law, § 369, subd 1, par [b]). All three of the proceedings before us bring this section into play. In each, the decedent received Medicaid benefits while over 65. And, upon the death of each, the Department of Social Services of the county through which the assistance had been disbursed sought recoupment. The claims having been rejected by the decedents’ personal representatives, in due course the question of their validity was adjudicated in the Surrogate’s Court. Overruling the petitioning estates’ contention that recoupment under section 369 (subd 1, par [b]) would constitute a denial of equal protection under both Federal and State Constitutions (US Const, 5th, 14th Arndts; NY Const, art I, § 11), the Surrogate in each case upheld the claim. Petitioners now appeal directly to this court as of right pursuant to article VI (§ 3, subd b, par [2]) of the State Constitution and CPLR 5601 (subd [b], par 2).

The equal protection claim is straightforward. Simply stated, petitioners contend that the statutory scheme, which, as authorized by title XIX and provided for in New York’s section 369, allows recoupment of Medicaid payments received by recipients at age 65, sets up an impermissibly discriminatory classification. The alleged discrimination is based on a comparison with those under 65, as to whom there is no such requirement, either in Federal or State law. For the reasons which follow, we disagree.

Preliminarily, and with what we think is more than a touch of realism, we observe, as did both Surrogate Horey and Surrogate Telesca in the course of deciding these cases below, that, in essence, the real parties in interest are not the three needy aged who received the Medicaid payments. No claim was or could be made against them during their lifetimes. Nor need they have been apprehensive about whether recoupment would exhaust their dependents’ inheritance, for section 369 is explicit in exempting the estate of a recipient who has left a widow or a surviving child who is blind, disabled or under 21. In most instances, then, only nondependent heirs, legatees or devisees could suffer disappointed expectations.

But, even if this insulation did not exist, the disparate recoupment to which petitioners point need not be found offensive to the Constitutions. For, “[i]n the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis’, it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality’” (Dandridge v Williams, 397 US 471, 485, quoting Lindsley v Natural Carbonic Gas Co., 220 US 61, 78; Board of Educ. v Nyquist, 57 NY2d 27; Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326, 332).

This doctrine is especially pertinent when, as here, two classes, though superficially alike in that the members of both are recipients of Medicaid, are circumstantially dissimilar in significant respects. For instance, to qualify for Medicaid a person under 65 must be totally and permanently disabled, suffer a catastrophic illness, be blind or in a public assistance status. In contrast, a recipient who is over 65 may qualify for Medicaid without falling into one of those categories. It seems obvious that this relaxation of eligibility requirements is designed to make it possible for those over 65 in any event to keep their homes and other specified assets when stricken with illness late in life (see Matter of McLane, 54 AD2d 1133, affd 42 NY2d 1057). Needless to say, this also tends to enhance personal dignity. To, in turn, exact an obligation of repayment only after death, and then only when no dependent survivor is likely to exist, is hardly disproportionate to these circumstances vis-a-vis those which attend Medicaid eligibility for all those under 65.

Moreover, without regard to classification, since the statute operates in the social and economic sphere, section 369 (subd 1, par [b]) need but be rationally related to the achievement of a legitimate State purpose in order to withstand an equal protection attack. True it is that exhaustive research has not disclosed any legislative history articulating the precise reason for applying the recoupment thrust of this statute to the one class and not the other. But a strong presumption of constitutionality attaches to every legislative act (Marcus Assoc. v Town of Huntington, 45 NY2d 501, 505; Lighthouse Shores v Town of Islip, 41 NY2d 7, 11; Matter of Van Berkel v Power, 16 NY2d 37, 40).

Further, a rational basis need not be an articulated one (Matter of Malpica-Orsini, 36 NY2d 568, app dsmd sub nom. Orsini v Blasi, 423 US 1042). Since a legislature may or may not choose to express its motivation and, yet, in fashioning a statute, may look to the past, present or future, its rationality can be justified by any reasonable known or conceivable state of facts (Neale v Hayduk, 35 NY2d 182, 186, app dsmd 420 US 915, reh den 420 US 1009; Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61, 68; see, generally, Tribe, American Constitutional Law, § 16-3, p 996). So it is that here the Legislature may well have reasoned, for example, that younger medical assistance beneficiaries, even those who have suffered a catastrophic illness or been reduced to home relief, in light of their longer life expectancy, would be more likely to recover their health and attain a state of self-sufficiency than would those over 65.

Indeed, in adopting section 369, the Legislature took no extraordinary step. Social services recoupment acts had by then become commonplace (e.g., Social Services Law, § 104, subd 1 [authorizes recovery of real or personal property for the “cost of * * * assistance or care”]; Social Services Law, § 104-b [welfare lien on a recipient’s recovery in actions for personal injuries]; Social Services Law, § 105 [claim on life insurance proceeds held by welfare recipient at the time of his death]).

Finally, we again reject the contention that the existence of a welfare article in our State Constitution (NY Const, art XVII) commands heightened scrutiny in all social services cases (Matter of Bernstein v Toia, 43 NY2d 437, 448, 449; cf. Board of Educ. v Nyquist, 57 NY2d 27, 43-44, supra).

Accordingly, in Matter of Davis and Matter of Dann the order should be affirmed, without costs, and in Matter of Burke, the decree should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur; Judge Gabrielli taking no part.

In Matter of Davis and Matter of Dann: Order affirmed.

In Matter of Burke: Decree affirmed.

      . Section 369 (subd 1, par [b]) provides, in pertinent part:
      “1. All provisions of this chapter not inconsistent with this title shall be applicable to medical assistance for needy persons and the administration thereof by the public welfare districts. Any inconsistent provision of this chapter or other law notwithstanding * * *.

        “(b) there shall be no adjustment or recovery of any medical assistance correctly paid on behalf of such individual under this title, except from the estate of an individual who was sixty-five years of age or older when he received such assistance, and then only after the death of his surviving spouse, if any, and only at a time when he has no surviving child who is under twenty-one years of age or is blind or permanently and totally disabled”.

      . Two of the three cases, Matter of Davis and Matter of Dann, were decided together by the Surrogate’s Court, Cattaraugus County (111 Misc 2d 279). Matter of Burke was decided in Surrogate’s Court, Monroe County (111 Misc 2d 296).

      . During the pendency of this appeal, the Federal statute permitting and regulating recoupment (US Code, tit 42, § 1396a, subd [a], par [18]) was amended by the “Tax Equity and Fiscal Responsibility Act of 1982” to, as the Attorney-General points out, allow participating States, at their pleasure, to install a practice of placing a lien on the real property of a resident of a long-term residential care facility without regard to age. We find nothing in it to alter the course of this decision.

      . Other jurisdictions are of the same mind (see Charleston v Wohlgemuth, 332 F Supp 1175, affd 405 US 970; Snell v Wyman, 281 F Supp 853, affd 393 US 323;Newland v Child, 73 Idaho 530; Lalic v Chicago, Burlington & Quincy R. R. Co., 263 F Supp 987; Beck v Buena Park Hotel Corp., 30 111 2d 343; Donoho v O’Connell’s, Inc., 18 111 2d 432; Dimke v Finke, 209 Minn 29; Wallberg v Utah Public Welfare Comm., 115 Utah 242). Of special note is it that, in the Snell case, one of the specific allegations was that the exclusion of Medicaid benefits for those under 65 from New York’s comprehensive recoupment legislation violated equal protection.


text:
    Martin Sanders et al., Appellants, v Frederick M. Winship et al., Defendants, and Mrs. Frederick M. Winship, Respondent.
    Argued October 12, 1982
    decided November 18, 1982

      POINTS OF COUNSEL

      Arthur Richenthal for appellants.
    I. The amended complaint states a cause of action against defendant, Mrs. Frederick M. Winship, as a conspirator and aider and abettor of acts committed in violation of section 19-a of the Civil Rights Law. (Dorsey v Stuyvesant Town Corp., 299 NY 512; Bachrach v 1001 Tenants Corp., 21 AD2d 662, 15 NY2d 718; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Arlinghaus v Ritenour, 622 F2d 629; Triple D & E v Van Buren, 72 Misc 2d 569, 42 AD2d 841; Fidler v Murphy, 203 Misc 51; United States v Price, 383 US 787; Adickes v Kress & Co., 398 US 144; Zatz v Hertz, Neumark & Warner, 262 F Supp 928; Superintendent of Ins. of State of N. Y. v Freedman, 443 F Supp 628, 594 F2d 852.) II. Defendant, Mrs. Winship, is a “cooperative tenant” within the meaning of subdivision 2 of section 19-a of the Civil Rights Law.

      Leon Brickman for respondent.
    I. Sections 19-a and 19-b of the Civil Rights Law did not authorize a cause of action against defendant Joanne Winship. (Weisner v 791 Park Ave. Corp., 6 NY2d 426; Bachrach v 1001 Tenants Corp., 21 AD2d 662, 15 NY2d 718; Jablon v City of New York, 177 Misc 838, 268 App Div 859; Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639.) II. There is no such cause of action as a conspiracy to commit a tort. (Katz v Thompson, 19 Misc 2d 848, 9 AD2d 951; Corris v White, 29 AD2d 470; United States v Price, 383 US 787;
      Adickes v Kress & Co., 398 US 144; Zatz v Hertz, Neumark & Warner, 262 F Supp 928; Superintendent of Ins. of State of N. Y. v Freedman, 443 F Supp 628, 594 F2d 852; Munzer v Blaisdell, 269 App Div 970; Arlinghaus v Ritenour, 622 F2d 629; Triple D & E v Van Buren, 72 Misc 2d 569, 42 AD2d 841.) III. Defendant Joanne Winship is not a tenant.
   OPINION OF THE COURT

Fuchsberg, J.

In a case of first impression, we are called upon to construe section 19-a of the Civil Rights Law, legislation designed to outlaw specified discrimination in the sale of cooperative real estate ownership interests. At issue at this stage of the case is whether the defendant Joanne Winship, sued herein as Mrs. Frederick M. Winship, who with her husband occupies a Manhattan cooperative apartment of which Mr. Winship is the “cooperative shareholder”, is herself a “cooperative tenant” within the compass of the statute. Mr. Winship is also president and a director of 417 Park Avenue Corporation, the cooperative entity which bears the address of and owns the building in which the Winship apartment is located.

The statute, as relevant here, reads as follows:

“§ 19-a. Prohibition against unreasonable withholding of consent.
“1. No corporation formed for the purpose of the cooperative ownership of real estate within the state shall withhold its consent to the sale or proposed sale of certificates of stock or other evidence of ownership of an interest in such corporation because of the race, creed, national origin, or sex of the purchaser.
“2. For the purpose of this section a ‘corporation’ shall include the cooperative management, cooperative tenants, cooperative shareholders, or any appointee or successor in interest of a corporation.”

The plaintiffs, Martin Sanders and Erika Sanders, husband and wife, bring this suit for compensatory and punitive damages against the corporation, the Winships and the other corporate directors. As set out in some detail in their pleadings, Mr. and Mrs. Sanders, American citizens of Jewish persuasion who formerly resided in Israel, after contracting with a cooperative stockholder for the purchase of an apartment in the building in question as a residence for their children and themselves, as was stipulated in the contract and required by the corporation, submitted to a personal interview at the Winship apartment, where they were interrogated by Mr. and Mrs. Winship and four others identified as members of the board.

The papers go on to assert that, during the course of this meeting, the Winships, directly and indirectly, made repeated references, “derogatory and demeaning in both content and tone”, to plaintiffs’ religion and to their Israeli background. Shortly thereafter, though all information required for demonstrating the purchaser’s financial ability and good character had been furnished, Mr. Sanders was informed, without reason, that consent to the proposed purchase was denied. Plaintiffs’ complaint concludes with the charge that, among other things, this rejection was grounded on plaintiffs’ creed, was induced at least in part by Mrs. Winship (who, it is claimed, is, in terms of section 19-a, a “cooperative tenant”) and was consistent with “a continual course of conduct of defendant corporation, defendant board members' and defendant Mrs. Winship over a period of many years of invidious discrimination against members of the Jewish faith and other minorities”.

The procedural posture in which the case is here arises from a CPLR 3211 motion made on behalf of Mrs. Winship to dismiss the complaint against her for failure to state a cause of action, most particularly on the legal argument that she was not a “cooperative tenant”. Whatever an ultimate trial may disclose as to the truth of the allegations, on such a motion, a court is to take them as true and resolve all inferences which reasonably flow therefrom in favor of the pleader. On this basis, Special Term, of the view that, since Mrs. Winship “occupies the premises with her husband and has a possessory right, whether by license or otherwise, to do so”, she was a cooperative tenant, proceeded to deny her motion. Nevertheless, the Appellate Division, in a brief memorandum, reversed, on the law, and dismissed the complaint against her. For the reasons which follow, we agree with the result reached by Special Term.

Our analysis may well start with the obvious fact that the statute, expressive of fundamental State policy (see, e.g., NY Const, art I, § 11) and expressly purposed to combat the specific discrimination quoted above, is to be regarded as remedial in nature and, therefore, liberally construed (McKinney’s Cons Laws of NY, Book 1, Statutes, § 341; cf. Executive Law, § 300; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183). Nor are we to assume that, in framing such a statute, the Legislature did not act with a consciousness that antidiscrimination edicts all too commonly are circumvented unless they are comprehensive in their application (see Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, supra; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 209-210).

Reading the statute in this light, we observe initially that, though it begins by forbidding only the cooperative corporation itself from discriminatorily withholding consent (subd 1), it goes on to provide an expansive series of definitions of “corporations” to include not only the “cooperative management” through which it acts, which would not be exceptional, but also such categories as “cooperative tenants” and “cooperative stockholders”, each of whom normally play no formal managerial, decisional or policy role.

As we have seen, subdivision 1 of section 19-a commands that a cooperative corporation not “withhold its consent” for the proscribed discriminations. Indeed, the withholding of such consent is the prohibition the statute institutes. Since subdivision 2 then goes on to include cooperative tenants and cooperative stockholders within its special definitions of “corporation”, in a literal sense cooperative tenants and stockholders are forbidden to withhold consent. But this produces a paradox, for how can such a tenant who, strictly speaking, has no consent to give, be able to effectively withhold consent? The answer lies within the embrace of the further construction principle that a statute is to be viewed as a whole. To this end, all parts thereof, if possible, are to be harmonized to achieve the legislative purpose (see People v Mobil Oil Corp., 48 NY2d 192; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 97, 98,130). Or, as Chancellor Kent long ago put it more pointedly, “In the exposition of a statute, the intention of the lawmaker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter” (Kent’s Comm [13th ed], p 462). In fine, a cooperative tenant is prohibited from conduct which may help bring about an interdicted withholding.

Moreover, since the “primary interest of every stockholder in a co-operative housing corporation is a long-term, proprietary lease” (19 NY Jur 2d, Condominiums, § 51; see Matter of State Tax Comm. v Shor, 43 NY2d 151, 154), it would not be reasonable to assume that the inclusion of “cooperative tenants” as a category distinct from that of “cooperative stockholders” in such a particularized statute was a mere redundancy. The more is this so since it is still another rule of statutory construction that “effect and meaning must, if possible, be given to the entire statute and every part and word thereof” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 98; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 58 AD2d 285, 293, mod on other grounds 45 NY2d 471). Clearly then, “cooperative tenant” must intend something else than “cooperative stockholder”.

In determining who falls within the umbrella of the separate “cooperative tenant” category, it would be expected that such individuals, though not stockholders, would meet a realistic and recognizable, if not a technical, definition of tenant. The goal of the statute in mind, such persons should also be ones in a position to exert a legitimate influence on the policies or practices of the cooperative, perhaps somewhat akin to that of those in the companion category of stockholder. Suffice it unto the purposes of this case to say that one who dwells in unity in a cooperative apartment with his or her tenant stockholder spouse (who, after all, in a strict sense, has no managerial control either) is such a cooperative tenant.

In the marital situation, it needs no great sociological insight to know that, as a practical matter, the home is a common vital concern, in the management of which quite often a significant influence is exerted by one other than its titular owner. Indeed, actual or inchoate rights related to the support of a spouse, to which a home is central, have run through our law from the days when dower dawned (see 1 Coke, Commentary on Littleton, p 30; 2 Blackstone’s Commentaries, p 130) to the contemporary coverage of New York’s Equitable Distribution Law (see, e.g., Domestic Relations Law, § 236, part B, subd c, par [3]; Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Domestic Relations Law, § 236, 1981 Supp, p 33). So, too, the term tenant at times denotes one who possesses property only in a broad sense (e.g., Kavanaugh v Cohoes Power & Light Corp., 114 Misc 590) and, surely in the vernacular, has long and universally included “occupant”, “inhabitant” and “dweller” (Webster’s New World Dictionary, Encyclopedic Edition [1951]; Webster’s International Dictionary [2d ed, unabridged] [1961]; Random House Dictionary of the English Language [1966]; Funk & Wagnalls, A Standard Dictionary of the English Language [1895]).

It follows that a spouse who, though but a “cooperative tenant”, most often will share the feelings of the spouse is the “cooperative stockholder” and thus will have a legitimate interest in influencing the actions of the elected officials or hired professionals who wield authority on behalf of the cooperative. And, that influence, representative of the opinions of those who ultimately will be affected by the decisions, as plaintiff alleges, was manifested by Mrs. Winship, when she not only actively displayed her displeasure but seized the opportunity to do so either by invitation or acquiescence of her husband and other directors. If so proved, it could be found to have been a participating or contributing cause of the withholding of consent.

Therefore, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and defendant Mrs. Frederick M. Winship’s motion to dismiss the complaint denied.

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

Order reversed, with costs, and respondent’s motion to dismiss the complaint denied.

       Section 19-b of the Civil Rights Law provides that a person aggrieved by defiance of section 19-a may seek equitable relief and damages.


author: Jones, J. Chief Judge Cooke.

text:
    In the Matter of John Short, Respondent-Appellant, v Board of Managers of the Nassau County Medical Center, Appellant-Respondent.
    Argued October 14, 1982
    decided November 18, 1982

      POINTS OF COUNSEL

      Peter J. Mastaglio for respondent-appellant.
    I. Mr. Short is entitled to obtain copies of the requested medical claim records with identifying details deleted. (Doe v Greco, 62 AD2d 498; People v Prim, 47 AD2d 409, 40 NY2d 946; Paine v Chick, 50 AD2d 686; Addie W. v Charles U., 44 AD2d 727; Matter of State of New York Div. for Youth v Horan, 56 AD2d 632; Matter of D’Elia v Philip C., 57 AD2d 836; Matter of Van Alstyne v Michael EE, 63 AD2d 800; Gourdine v Phelps Mem. Hosp., 40 AD2d 694; Matter of Williams v Buffalo Gen. Hosp., 28 AD2d 777; Matter of Hyman v Jewish Chronic Disease Hosp., 15 NY2d 317.) II. The memorandum from the Nassau County Medical Center to Mr. Tedone is neither absolutely privileged nor absolutely exempt from disclosure. (Matter of Dunlea v Goldmark, 54 AD2d 446, 43 NY2d 754; Bennett v Troy Record Co., 25 AD2d 799.)

      Edward G. McCab, County Attorney (William S. Norden of counsel), for appellant-respondent.
    The Nassau County Medical Center records as to claims for Medicaid reimbursement for abortions performed during the period of February, 1972 through April, 1972, bearing certain specifically identifiable file numbers described in respondent-appellant’s petition, are not subject to disclosure in toto or in part under section 89 of the Public Officers Law. (New York Teachers Pension Assn. v Teachers’ Retirement System of City of N. Y., 71 AD2d 250, 49 NY2d 701; King v O’Connor, 103 Misc 2d 607; Matter of Camperlengo v Blum, 83 AD2d 661, 56 NY2d 251; Matter of Youth Bldg. Corp. v Board of Assessors of County of Nassau, 56 NY2d 765; Matter of John P. v Whalen, 54 NY2d 89; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; Prink v Rockefeller Center, 48 NY2d 309; Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234; Cirale v 80 Pine St. Corp., 35 NY2d 113.)
   OPINION OF THE COURT

Jones, J.

The statutory authority to delete identifying details as a means to remove records from what would otherwise be an exception to the disclosure mandated by the Freedom of Information Law extends only to records whose disclosure without deletion would constitute an unwarranted invasion of personal privacy, and does not extend to records excepted in consequence of specific exemption from disclosure by State or Federal statute. Disclosure of the 29 medical records sought by petitioner, as well as of the interagency memorandum, except as to statistical or factual tabulations or data, is denied.

Pursuant to the provisions of the Freedom of Information Law (Public Officers Law, art 6), petitioner requested the Nassau County Commissioner of Social Services to furnish him with copies of 29 medical records of the Nassau County Medical Center relating to claims for Medicaid reimbursement for abortions performed during the period February through April, 1972, and a copy of a memorandum dated July 19, 1972 from the medical center to a Deputy County Attorney with regard to the performance of medically related abortions at the medical center during 1972. This request was forwarded to the medical center where it was denied. Petitioner thereupon instituted the present action pursuant to the provisions of the Freedom of Information Law to compel the medical center to furnish him with the records which he desired.

Supreme Court directed disclosure of the 29 medical records, but only after deletion of personal identifying details, the extent of such deletion to be determined by the medical center. Disclosure of the July 19, 1972 memorandum was denied. The medical center then appealed to the Appellate Division from so much of the judgment of Supreme Court as directed disclosure of the 29 medical records after deletion of all identifying details, and petitioner cross-appealed from so much of the judgment as denied disclosure of the July 19, 1972 memorandum. The Appellate Division affirmed the judgment of Supreme Court. On cross appeals to our court we now reverse that determination.

As to the 29 individual medical records there should be a reversal and denial of disclosure. Section 87 (subd 2, par [a]) of the Public Officers Law authorizes the agency to deny access to records that “are specifically exempted from disclosure by state or federal statute”. The medical center refers to various statutory and regulatory provisions which it contends bring the 29 medical records within this exception. For present purposes it suffices to cite the following provisions:

“Every patient shall have the right to have privacy in treatment and in caring for personal needs, confidentiality in the treatment of personal and medical records, and security in storing personal possessions” (Public Health Law, § 2803-c, subd 3, par f).
“The commissioner shall adopt such regulations as may be necessary to give effect to the provisions of this section and to preserve the confidentiality of medical, social, personal or financial records of patients” (Public Health Law, § 2805-g, subd 3).
“Any inconsistent provision of this chapter or other law notwithstanding, all information received by public welfare and public health officials and service officers concerning applicants for and recipients of medical assistance may be disclosed or used only for purposes directly connected with the administration of medical assistance for needy persons” (Social Services Law, § 369, subd 3).

Neither petitioner nor the courts below have seriously contended that the medical records sought do not initially come within the exception of section 87 (subd 2, par [a]). It has been the position of both and continues to be the position of petitioner, however, that the records sought are removed from that exception when all personal identifying data have been deleted. We cannot agree with this latter proposition.

The Legislature in amending and recasting the Freedom of Information Law in 1977 (L 1977, ch 933) has prescribed eight categories of records as to which agencies may deny public access (section 87, subd 2, pars [a]-[h]). The statute is framed to empower the agency to deny access to the specified records. Nothing in the Freedom of Information Law, however, restricts the right of the agency if it so chooses to grant access to records within any of the statutory exceptions, with or without deletion of identifying details (cf. Chrysler Corp. v Brown, 441 US 281).

One of the eight categorial exceptions, the second, prescribed in paragraph (b), is records or portions thereof that “if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article”. The exceptions to disclosure prescribed in the other paragraphs (a) and (c) to (h) are independent and may be invoked by agencies whether or not disclosure would constitute an unwarranted invasion of privacy; as to these, invasion of privacy is irrelevant. Phrased otherwise, the circumstance that it could be demonstrated in a particular instance that disclosure would involve no invasion of privacy would not serve to remove records from inclusion in any of these other seven categorial exceptions.

It is in subdivision 2 of section 89 — which treats of the category of unwarranted invasions of personal privacy — that provision is made for “deletion of identifying details”. This subdivision contains no reference to records excepted from mandatory disclosure under any of the other seven categories, and there is no counterpart to this subdivision in which provision for deletion is made with respect to records sheltered from disclosure under any of the other seven categories.

It thus appears that the Legislature made provision for deletion as a means to “sanitize” records only within the single specified category. Under familiar canons of construction, the explicit authorization of the deletion device with respect to this one category of records imports a legislative intention to restrict the deletion device to that single category. Had it been intended to authorize deletions to subject records in any of the other seven categorial exceptions to public disclosure the verbiage to achieve that result was readily available.

If there were doubt as to the significance to be attached for present purposes to this statutory design, all doubt is removed when attention is focused on the language of section 89 (subd 2, par [a]) (the paragraph which makes provision for the use of deletion). That paragraph explicitly is made applicable to the deletion of identifying details or withholding “of records otherwise available” under the statute to prevent unwarranted invasions of personal privacy. Thus, provision is made for deletion from records that would be open to public disclosure but for the fact that their disclosure (without deletion) would constitute an unwarranted invasion of personal privacy. What is intended and accomplished by subdivision 2 of section 89 is provision of a means by which the single obstacle to disclosure — the invasion of personal privacy — may be overcome, i.e., by deleting identifying details. This concept and operating principle of selective deletion can have no application, however, to the 29 medical records sought by petitioner here. They are not “otherwise available” inasmuch as they are “specifically exempted from disclosure by state or federal statute” (§ 87, subd 2, par [a]) wholly without reference to invasion of privacy.

The 29 medical records sought by petitioner, even if identifying details were to be deleted, would not cease to be “medical records” protected under sections 2803-c and 2805-g of the Public Health Law or “information” sheltered by section 369 of the Social Services Law; their classification would remain the same, bringing them squarely within the exception of section 87 (subd 2, par [a]) of the Public Officers Law. That an underlying purpose — that of preservation of individual confidentiality — may be served by deletion of identifying details is perhaps a predicate on which to ground an argument to the Legislature that the statute should be amended to extend the use of deletion to remove records from other categories of exception in addition to that for unwarranted invasion of personal privacy; it provides no basis, however, for judicial revision of the statute.

With respect to the memorandum of July 19, 1972, petitioner on appeal to us acknowledges that it falls within the exception of “inter-agency or intra-agency materials” prescribed in section 87 (subd 2, par [a]) and now limits his request to “statistical or factual tabulations or data” to be found in the memorandum which would be subject to disclosure under clause i of paragraph (g). The case should be returned to Supreme Court with directions to that court to conduct an in camera inspection of the memorandum and its four attachments to determine whether there are any such statistical or factual tabulations or data, and if so to order disclosure thereof to petitioner.

For the reasons stated, the order of the Appellate Division should be reversed, without costs, the request for disclosure of the 29 medical records denied, and the case returned to Supreme Court for an in camera inspection of the memorandum dated July 19, 1972 and order of disclosure, if appropriate.

Chief Judge Cooke.

(dissenting in part). I respectfully dissent from that part of the majority decision which denies the request for disclosure of the 29 medical records, and I vote to modify. The court has the discretionary power to order the patients’ records disclosed with identifying information deleted. This would protect the privacy of the individuals while serving the purpose of the Freedom of Information Law: to encourage “the understanding and participation of the public in government”, “to extend public accountability wherever and whenever feasible”, and to forestall thwarting “[t]he people’s right to know the process of governmental decision-making * * * by shrouding [the underlying documents and statistics] with the cloak of secrecy or confidentiality” (Public Officers Law, § 84). To deny such a power to the courts in this context is tantamount to granting to the agency an unlimited power to withhold records.

Judges Jasen, Gabrielli, Fuchsberg and Meyer concur with Judge Jones; Chief Judge Cooke dissents in part and votes to modify in a separate opinion; Judge Wachtler taking no part.

Order reversed, without costs, request for disclosure of 29 medical records denied, and matter remitted to Supreme Court, Nassau County, for further proceedings in accordance with the opinion herein.

      . Subdivision 2 of section 87 provides in full:
      “2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that:
      “(a) are specifically exempted from disclosure by state or federal statute;
      “(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;
      “(c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations;
      “(d) are trade secrets or are maintained for the regulation of commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise;
      “(e) are compiled for law enforcement purposes and which, if disclosed, would:
      “i. interfere with law enforcement investigations or judicial proceedings;
      "ii. deprive a person of a right to a fair trial or impartial adjudication;
      “iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or “iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures;
      “(f) if disclosed would endanger the life or safety of any person;
      “(g) are inter-agency or intra-agency materials which are not:
      “i. statistical or factual tabulations or data;
      “ii. instructions to staff that affect the public; or “iii. final agency policy or determinations; or
      “(h) are examination questions or answers which are requested prior to the final administration of such questions.”

      . Subdivision 2 of section 89 provides:
      “2. (a) The committee on public access to records may promulgate guidelines regarding deletion of identifying details or withholding of records otherwise available under this article to prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an agency may delete identifying details when it makes records available.
      “(b) An unwarranted invasion of personal privacy includes, but shall not be limited to: “i. disclosure of employment, medical or credit histories or personal references of applicants for employment;
      “ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;
      “iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes;
      “iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
      “v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.
      “(c) Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and (b) of this subdivision:
      “i. when identifying details are deleted;
      “ii. when the person to whom a record pertains consents in writing to disclosure;
      “iii. when upon presenting reasonable proof of identity, a person seeks access to records pertaining to him.”

      . Although it may reasonably be assumed that concern for protection of the privacy of individual patients was a major consideration behind the Legislature’s enactment of sections 2803-c and 2805-g of the Public Health Law and section 369 of the Social Services Law prescribing confidentiality of medical records it would be unwarranted on the record before us to assume that this was the exclusive motive for the legislation. To the extent that the Legislature may have had other concurrent objectives, we cannot, of course, determine whether such objectives would be frustrated by disclosure, notwithstanding deletion of identifying details.