text:
    Mark A. Dunlea et al., Appellants, v Warren Anderson, as Temporary President of the New York State Senate, et al., Respondents.
    Argued October 17, 1985;
    decided November 21, 1985
    POINTS OF COUNSEL

      Mark A. Dunlea, appellant pro se, and others, appellants.
    I. The lower court failed to apply the correct test in deciding the constitutionality of the challenged activity. (New York Public Interest Research Group v Steingut, 40 NY2d 250; Matter of Hotel Assn. v Weaver, 3 NY2d 206; Matter of Civil Serv. Employees Assn. v Levitt, 52 AD2d 100, 40 NY2d 250; Thompson v Hofstatter, 265 NY 54; Matter of Sherril v O’Brien, 188 NY 185; People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Commrs., 174 NY 417, 199 US 1; Matter of Van Berkel v Power, 16 NY2d 37; Good Humor Corp. v City of New York, 290 NY 312; People v Gillson, 109 NY 389; Matter of Brewster, 92 Misc 339.) II. The circumstances and practices which existed at the time of passage of the constitutional provision clearly show that the people and constitutional drafters sought to prohibit the challenged activity. III. In the years following the amending of article III, § 6, the Legislature denied that it had the authority to increase its compensation after members of a new term had already been elected. (New York Public Interest Research Group v Steingut, 40 NY2d 250.) IV. The objectives of article III, § 6 make it clear that the challenged activity is unconstitutional. (Union Free School Dist. v Town of Rye, 280 NY 469; Matter of Markland v Scully, 146 App Div 350, 203 NY 158; Matter of Dowling, 219 NY 44; Matter of Fay, 291 NY 198; Smith v People, 47 NY 330; Gautier v Ditmar, 204 NY 20; Baker v Marley, 8 NY2d 365.) V. The constitutional drafters inserted the words "and with respect to” into the existing constitutional phrase "during the term for which he shall have been elected” to make clear that a legislator’s salary could not be increased once he had been elected. (Finn v City of New York, 282 NY 153; Matter of Smith, 90 Hun 568; Matter of Sherril v O’Brien, 188 NY 185; Cherey v City of Long Beach, 282 NY 382.)

      Robert Abrams, Attorney-General (Wayne L. Benjamin, Robert Hermann and Peter H. Schiff of counsel), for respondents.
    Legislators serving in the 1984-1985 term did not violate NY Constitution, article III, § 6 when they voted an increase in legislative salaries and allowances effective upon the next legislative term, 1985-1986. (Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Anderson v Regan, 53 NY2d 356; Bender v Jamaica Hosp., 40 NY2d 560; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Miltzer v Koenigsberg, 302 NY 523; Matter of Budd v Valentine, 283 NY 508; Matter of Mularadelis v Haldane Cent. School Bd., 74 AD2d 248; People v Illardo, 48 NY2d 408; Matter of Malpica-Orsini, 36 NY2d 568.)
   OPINION OF THE COURT

Alexander, J.

The only question involved on this appeal concerns the constitutionality of the Laws of 1984 (ch 986), passed by the State Senate and Assembly on December 6, 1984, which, inter alla, increased the salaries of the members of the Legislature for the 1985-1986 term. The appeal is taken pursuant to CPLR 5601 (b) (2) directly from a judgment of Supreme Court, Albany County, declaring that sections 18 and 19 of chapter 986 are not violative of NY Constitution, article III, § 6. The latter section provides that "[n]either the salary of any [legislator] nor any other allowance * * * may be increased or diminished during, and with respect to, the term for which he shall have been elected”.

On November 6, 1984, the voters of this State elected the members of the 1985-1986 Legislature. On December 6, 1984, the members of the 1983-1984 Legislature approved Senate Bill 10162, which was signed into law the following day by Governor Cuomo as the Laws of 1984 (ch 986). This enactment amended the Judiciary Law, the Legislative Law, the New York City Civil Court Act, the County Law, the Executive Law and the State Finance Law to raise the salaries of members of the Legislature, judges and justices of the unified court system, New York City housing judges, and certain District Attorneys and State officers. The effective date of sections 18 and 19 of the new statute, which deal with legislative salaries and allowances, was January 1, 1985, the commencement date of the 1985-1986 legislative term.

Plaintiffs, the Committee Against Legislative Pay Increases, by its treasurer Mark A. Dunlea, and Edward Robinson, a New York State resident and taxpayer, commenced this action seeking a declaration that sections 18 and 19 of chapter 986 are unconstitutional; an injunction against further distribution of funds under those sections; and restitution of funds already paid out thereunder. Specifically, plaintiffs contend that because 144 of those members of the 1983-1984 Legislature who voted in favor of increasing salaries for the 1985-1986 term had already been elected to that term, the enactment of sections 18 and 19 violated the constitutional proscription against raising a legislator’s salary "during, and with respect to, the term for which he shall have been elected”.

Special Term granted defendants’ motion for summary judgment, declaring that the legislators whose terms of office were to expire on December 31, 1984 were entitled to approve an increase in legislative salaries and allowances to take effect upon the commencement of the next legislative term, and that sections 18 and 19 were validly enacted. We now affirm.

"Our deliberations must begin with an awareness of the respect due the legislative branch, which finds articulation in the precept that 'as a matter of substantive law every legislative enactment is deemed to be constitutional until its challengers have satisfied the courts to the contrary’ (Montgomery v Daniels, 38 NY2d 41, 54)” (New York Public Interest Research Group [NYPIRG] v Steingut, 40 NY2d 250, 257). In NYPIRG, we invalidated the then-prevalent practice by the Legislature of increasing legislator’s allowances on a year-by-year basis through annual budgetary appropriations. Because these allowances were appropriated during each term and were effective during the same term, it was clear that they violated the constitutional proscription against increasing a member’s allowance "during, and with respect to, the term for which he shall have been elected”. We also held, however, that "the Constitution lays no constraint on the authority of the Legislature by enactment of general law to make provision prospectively for allowances to be received by the officers and members of the two houses during a succeeding legislative term or terms” (New York Public Interest Research Group v Steingut, 40 NY2d, at p 261, supra [emphasis supplied]). The provisions of sections 18 and 19 raising salaries and allowances for members of the 1985-1986 Legislature are clearly prospective and thus do not violate NY Constitution, article III, § 6. That section does not prohibit one Legislature, subsequent to the elective designation of its successor body, from increasing the salaries of the next term’s members. Neither its language nor the intention of its drafters compel a contrary interpretation.

Until NY Constitution, article III, § 6 became effective in its present form on January 1, 1948, legislative salaries were fixed, primarily on a per diem basis, by the Constitution, and could be changed only by constitutional amendment. With the amendment of section 6, a legislator now "receivers] for his services a like annual salary, to be fixed by law” (NY Const, art III, § 6). The purpose of empowering the Legislature to determine its own compensation, "as is done in Congress”, was to avoid "repeating] the error of inflexibility” that had resulted from "fixing the compensation of legislators and legislative leaders in the Constitution, and thus fail[ing] to provide for changing conditions and circumstances” (New York State Joint Legislative Committee on Legislative Methods, Practice, Procedures and Expenditures, 1946 NY Legis Doc No. 31, at 170).

Until recent years, the Legislature was not normally in session during the period following the traditional November election, and thus it is unlikely that the drafters of section 6 intended to bar the enactment of a salary change after an election, but before the newly elected members have begun their term. The language of section 6 bears this out. The phrase "and with respect to” in section 6 qualifies the preceding word "during”. The ban on increasing a member’s salary "during, and with respect to, the term for which he shall have been elected” simply prohibits a particular Legislature, during its term, from raising its salary with respect to that term. "Relative and qualifying words or clauses in a statute are to be applied to the words or phrases immediately preceding, and are not to be construed as extending to others more remote” (McKinney’s Cons Laws of NY, Book 1, Statutes § 254; see, Matter of Budd v Valentine, 283 NY 508).

Our interpretation of section 6 is consistent with other States’ interpretations of somewhat similar, as well as critically different, provisions dealing with this subject. For example, in Holcomb v State ex rel. Coxey (126 Ohio St 496, 186 NE 99), the court upheld an enactment diminishing the salary of a Mayor, which was passed after the Mayor had been elected but prior to his taking office, where the relevant statute prohibited a change in a public official’s salary "during the term for which he was elected” (id., 126 Ohio St, at p 498, 186 NE, at p 100; see also, Romano v Aten, 323 Mich 533, 35 NW2d 701). By contrast, several State Constitutions specifically bar salary changes for public officials "after election” (e.g., Del Const, art XV, § 4; Pa Const, art 3, § 27; Wyo Const, art 3, § 32). Similarly, other States prohibit legislative salary changes from taking effect until the commencement of the legislative term following the next general election after enactment of the statute (Cal Const, art 4, § 4; NJ Const, art 4, § 4, fl 8; Tenn Const, art 2, § 23).

We determine, therefore, that the judgment of Supreme Court, Albany County, should be affirmed.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Titone concur; Judge Meyer taking no part.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    Elliot Maddox et al., Appellants, v City of New York et al., Defendants-Respondents and Third-Party Plaintiffs-Respondents. D. Reiner, Inc., Third-Party Defendant-Respondent; New York Yankees, Third-Party Defendant-Respondent and Fourth-Party Plaintiff-Respondent; The American League of Professional Baseball Clubs, Fourth-Party Defendant-Respondent. (Action No. 1.) Elliot Maddox, Appellant, v Thomas Crimmins Contracting Company et al., Respondents. (Action No. 2.)
    Argued October 17, 1985;
    decided November 21, 1985

      POINTS OF COUNSEL

      Emilio Nunez, Stephen C. Glasser, Harry H. Lipsig and Pamela Anagnos Liapakis for appellants in both actions.
    I. The court below erred as a matter of law in dismissing the complaints since, as to all cases decided after Basso v Miller (40 NY2d 233 [1976]), the "risk” assumed in the doctrine of assumption of risk must relate to a risk inherent and necessary in the play of the game and not, as here, to a risk created by an unreasonably dangerous condition on the playing field. (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Arbegast v Board of Educ., 65 NY2d 161; Curdo v City of New York, 275 NY 20; Luftig v Steinhorn, 21 AD2d 760, 16 NY2d 568; Schmerz v Salon, 26 AD2d 691, 19 NY2d 846; Scurti v City of New York, 40 NY2d 433; Carbone v Mackchil Realty Corp., 296 NY 154; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Akins v Glens Falls City School Dist., 53 NY2d 325; Paul v Kagan, 92 AD2d 988.) II. The court below further erred as a matter of law in dismissing the complaints since other elements necessary for the defense are, likewise, absent in the case at bar. (Hornstein v State of New York, 30 AD2d 1012; Jackson v Livingston Country Club, 55 AD2d 1045; Arnold v Schmeiser, 34 AD2d 568; Cole v New York Racing Assn., 24 AD2d 993, 17 NY2d 761; McEvoy v City of New York, 266 App Div 445, 292 NY 654; Broderick v Cauldwell-Wingate Co., 301 NY 182; Kaplan v 48th Ave. Corp., 267 App Div 272; Adler v Shell Transp. Corp., 26 AD2d 625; Porter v Alvis Contr. Corp., 57 AD2d 222; Larson v Nassau Elec. R. R. Co., 223 NY 14.) III. In addition to the absence of proof that centerfield in Shea Stadium was reasonably safe for its anticipated use, other questions of fact also exist on this record as to whether plaintiff assumed the risk or was contributorily negligent in continuing to play ball after observing the water conditions there. (Larson v Nassau Elec. R. R. Co., 223 NY 14; Wolf v City of New York, 47 AD2d 152, 39 NY2d 568; Levy v Cascades Operating Corp., 176 Misc 373, 263 App Div 882, 289 NY 714; Moshella v Archdiocese of N. Y., 48 AD2d 856, 52 AD2d 873; Buckley v Cunard S. S. Co., 233 App Div 361; Porter v Alvis Contr. Corp., 57 AD2d 222; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Wartels v County Asphalt, 29 NY2d 372; Rossman v La Grega, 28 NY2d 300.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (June A. Witterschein and Leonard Koerner of counsel), for City of New York, defendant-respondent and third-party plaintiff-respondent in action No. 1.
    Since Mr. Maddox continued to play baseball at Shea Stadium on the evening of June 13, 1975 knowing that the field was "wet, slippery, filling up with water and was muddy on the warning track”, he assumed the risk of any injury he incurred as a result of those conditions and thus is barred from recovering from defendants. (Arbegast v Board of Educ., 65 NY2d 161; Dillard v Little League Baseball, 55 AD2d 477, 42 NY2d 801; Murphy v Steeplechase Amusement Co., 250 NY 479; Dowd v New York, Ontario & W. Ry. Co., 170 NY 459; McGee v Board of Educ., 16 AD2d 99.)

      Marshall D. Sweetbaum for Metropolitan Baseball Club, Inc., defendant-respondent and third-party plaintiff-respondent in action No. 1.
    The order of the court below reversing the order of Special Term and granting summary judgment dismissing plaintiff’s complaint was wholly warranted based on all existing rules of law. (Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Luftig v Steinhorn, 21 AD2d 760, 16 NY2d 568; Arbegast v Board of Educ., 65 NY2d 161.)

      David T. Fowler, Philip Schlau and Abraham S. Altheim for D. Reiner, Inc., third-party defendant-respondent in action No. 1.
    I. Plaintiff Elliott Maddox’s action is barred since, as a matter of law, he assumed the risk of the injuries he purportedly sustained. (Lamphear v State of New York, 91 AD2d 791; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Luftig v Steinhorn, 21 AD2d 760, 16 NY2d 568; Murphy v Steeplechase Amusement Co., 250 NY 479; Diderou v Pinecrest Dunes, 34 AD2d 672; Jenks v McGranaghan, 32 AD2d 989; Akins v Glens Falls City School Dist., 53 NY2d 325; Dillard v Little League Baseball, 55 AD2d 477; McEvoy v City of New York, 266 App Div 445, 292 NY 654.) II. The doctrine of assumption of risk may be applied to the case at bar despite plaintiff’s claims of enhancement of the risk. III. Assumption of risk may be applied in the case at bar as there is no evidence that plaintiff’s actions were not voluntary. IV. Plaintiff need only have been aware of the general scope of the risk in order for the assumption of risk doctrine to apply. (Dillard v Little League Baseball, 55 AD2d 477; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Luftig v Steinhorn, 27 AD2d 760; Diderou v Pinecrest Dunes, 34 AD2d 672.) V. Grounds for appeal which have not been raised before at either Special Term or the court below may not be urged on this appeal for the first time. (Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Blue Grass Partners v Bruns, Nordeman, Rea & Co., 75 AD2d 791; Matter of Miller v Loewenberg, 75 AD2d 620; Matter of Belgrave v Ward, 72 AD2d 898; Pi Lambda Phi Fraternity v Seneca Beta Corp., 54 AD2d 1127.)

      Robert F. Saunderson for New York Yankees, third-party defendant-respondent and fourth-party plaintiff-respondent in action No. 1.
    The order of the court below granting summary judgment and dismissing plaintiff’s complaint by reason of plaintiff’s having assumed the risk of his injury was correct. (Arbegast v Board of Educ., 65 NY2d 161; McEvoy v City of New York, 266 App Div 445, 292 NY 624; Kimbar v Estix, 1 NY2d 399; Diderou v Pinecrest Dunes, 34 AD2d 672.)

      William R. Ahmuty, III, for The American League of Professional Baseball Clubs, fourth-party defendant-respondent in action No. 1.
    The order of the court below reversing the order of Special Term and granting summary judgment dismissing appellant’s complaint was wholly warranted based on all existing rules of law. (McEvoy v City of New York, 266 App Div 445, 292 NY 654; Curcio v City of New York, 275 NY 20; Diderou v Pinecrest Dunes, 34 AD2d 672; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Luftig v Steinhorn, 21 AD2d 760, 16 NY2d 568; Arbegast v Board of Educ., 65 NY2d 161; Fitsimmons v State of New York at Stonybrook, 42 AD2d 636, 33 NY2d 683, 34 NY2d 739.)

      Joanne Redden and John J. Wrenn for Thomas Crimmins Contracting Company, respondent in action No. 2.
    I. Thomas Crimmins Contracting Company is entitled to summary judgment regardless of the correctness of the decision of the court below. (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470; Fertico Belgium, S.A. v Phosphate Chems. Export Assn., 100 AD2d 165; Loral Realty Co. v Beauty Dev. Corp., 114 Misc 2d 541; Castro v Liberty Bus Co., 79 AD2d 1014; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56; Gelb v Bucknell Press, 69 AD2d 829; Di Sabato v Soffes, 9 AD2d 297; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Andre v Pomeroy, 35 NY2d 361; Celeste v State of New York, 15 AD2d 593.) II. The court below did not err in finding that plaintiff is barred by the doctrine of assumption of risk from maintaining the within action. (Arbegast v Board of Educ., 65 NY2d 161; McEvoy v City of New York, 266 App Div 445, 292 NY 654; Kimbar v Estix, 1 NY2d 399; Curdo v City of New York, 275 NY 20; Murphy v Steeplechase Amusement Co., 250 NY 479; Diderou v Pinecrest Dunes, 34 AD2d 672; Davidoff v Metropolitan Baseball Club, 92 AD2d 461, 61 NY2d 996; Dillard v Little League Baseball, 55 AD2d 477; McGee v Board of Educ., 16 AD2d 99, 19 AD2d 526, 12 NY2d 1100; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762.)

      James L. Fischer, Thomas W. Hyland and Thomas A. Leghorn for U.R.S. Madigan-Praeger, Inc., respondent in action No. 2.
    The court below correctly found that the doctrine of assumption of risk barred plaintiff from obtaining a recovery for any injuries sustained while playing professional baseball. (Magar v Hammond, 171 NY 377; Nucci v Warshaw Constr. Corp., 13 AD2d 699, 12 NY2d 16; Guzzi v New York Zoological Socy., 192 App Div 263, 233 NY 511; Jenks v McGranaghan, 65 Misc 2d 284, 37 AD2d 638, 30 NY2d 475; Kimbar v Estix, 1 NY2d 399; Diderou v Pinecrest Dunes, 34 AD2d 672; McGee v Board of Educ., 16 AD2d 99, 12 NY2d 1100; Scaduto v State of New York, 86 AD2d 682, 56 NY2d 762; Luftig v Steinhorn, 21 AD2d 760, 16 NY2d 568; Dillard v Little League Baseball, 55 AD2d 477.)
   OPINION OF THE COURT

Meyer, J.

The deposition testimony of plaintiff, a professional baseball player, that he was aware of the wet and muddy condition of the playing field on the night he was injured and of the particular puddle in which he fell, that he had during the game called the attention of the grounds keepers to the fact that there was puddling on the field and had previously commented a couple of times to the baseball club manager when the field was wet, established his awareness of the defect which caused his injury and of the risk involved. His continued participation in the game in light of that awareness constituted assumption of risk as a matter of law, entitling defendants to summary judgment. There should, therefore, be an affirmance, with costs, of the Appellate Division order.

I

Plaintiff, a member of the New York Yankees team, was injured on June 13, 1975, when he slipped and fell during the ninth inning of a night game with the Chicago White Sox. The game was played at Shea Stadium because Yankee Stadium was then being renovated. Plaintiff testified that he was playing centerfield and was fielding a fly ball hit to right centerfield, that he was running to his left and as he sought to stop running his left foot hit a wet spot and slid, but his right foot stuck in a mud puddle, as a result of which his right knee buckled. The knee injury required three separate surgical procedures and ultimately forced him to retire prematurely from professional baseball.

Plaintiff and his wife (hereafter collectively referred to as plaintiff) sued the city, as owner of Shea Stadium, and the Metropolitan Baseball Club, Inc., as lessee. In a separate action plaintiff sued the general contractor who built Shea Stadium and the architect and the consulting engineer. Both actions charge that the drainage system was negligently designed, constructed or maintained. Claims over by various defendants were made against the maintenance company for Shea Stadium, the New York Yankees and The American League of Professional Baseball Clubs, as employer of the umpires.

After consolidation of the actions and after depositions had been taken, four of the defendants and cross claim defendants moved for summary judgment dismissing the complaints on the ground that plaintiff had assumed the risk. Special Term denied the motions, holding that it could be inferred that plaintiff in continuing to play was acting under his superior’s instructions and that, therefore, there was an issue of fact to be tried. On appeal to the Appellate Division, that court reversed and dismissed both complaints and all claims over. Noting that plaintiff had admitted that the previous night’s game had been canceled because of the weather and poor field conditions, that he had during the game in question observed the centerfield to be "awfully wet” with "some mud” and standing water above the grass line, had reported that conditian to a ground crew member, and had presented no evidence of an order from a superior after making the condition known, it held that there remained no triable issue of fact as to plaintiff’s assumption of the risk.

Before us, plaintiff argues that he assumed the risks of the game, not of the playing field, which was in an unreasonably dangerous condition, that the risk had in any event been enhanced, that he had no choice but to continue to play, and that the evidence did not establish his subjective awareness that his foot could get stuck in the mud. For the reasons that follow we disagree with that analysis and, therefore, affirm.

II

In Arbegast v Board of Educ. (65 NY2d 161), we noted the common law’s distinction between express and implied assumption of risk and held that, notwithstanding the adoption in 1975 of CPLR 1411, the plaintiff in that case having admitted "that she had been informed both of the risk of injury and that 'the participants were at their own risk’ ” (id., at p 164), her participation in the games there involved constituted an express agreement on her part to assume the risk, entitling defendant to the direction of a verdict (id., at p 162). In the instant case we deal not with express assumption of risk, but with assumption of risk to be implied from plaintiff’s continued participation in the game with the knowledge and appreciation of the risk which his deposition testimony spelled out and which established his implied assumption as a matter of law.

Plaintiff suggests that our adoption in Basso v Miller (40 NY2d 233) of the single standard of reasonable care somehow transmogrified assumption of the risk into a defense that cannot be asserted until defendants (who, as movants for summary judgment, bear the burden of establishing prima facie their right to judgment) have established their own exercise of reasonable care. The suggestion finds no support in either footnote 2 to the Arbegast decision (at p 166) or in Scaduto v State of New York (56 NY2d 762, affg 86 AD2d 682), to both of which plaintiff refers. The Arbegast footnote cited Basso simply as an illustration of the confusion of assumption of risk with absence of duty in the pre-1975 cases, but made no change in the rule that a defendant seeking summary judgment by way of a complete defense in confession and avoidance, such as assumption of the risk or Statute of Limitations, bears no greater burden than the establishment of the defense. And the Appellate Division’s holding in Scaduto, notwithstanding the two sentences in its memorandum concerning assumption, was that the "State did not breach any duty of care to claimant” (86 AD2d, at p 683), which the records of this court show was the basis for our affirmance, without reaching the assumption issue.

No more helpful to plaintiff is our abandonment in Micallef v Miehle Co. (39 NY2d 376, 382-385) of the patent danger doctrine declared in Campo v Scofield (301 NY 468). In the first place, Campo denied recovery "if the dangerous character of the product can be readily seen, irrespective of whether the injured user or consumer actually perceived the danger” (39 NY2d, at p 384). More importantly, Micallef was based on the greater expertise and superior position of a manufacturer to recognize and cure defects over the user of his product injured by its defect, a consideration which, as the Appellate Division pointed out (108 AD2d, at p 45), can hardly be said to be present in relation to a professional athlete, who is both more highly trained and in a better bargaining position than persons injured by consumer products (see also, Turcotte v Fell, 123 Misc 2d 877). Notwithstanding that this is a pre-1975 case in which we would be at liberty to modify the common-law rules of assumption of the risk, just as Campo’s "open and obvious” rule was modified, we decline to take that step, perceiving no reasonable basis for doing so.

Nor does the case law sustain plaintiff’s efforts to avert dismissal of his action on the basis of assumption of the risk law. The risks of a game which must be played upon a field include the risks involved in the construction of the field, as has been held many times before. That the assumption doctrine "applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on” (Diderou v Pinecrest Dunes, 34 AD2d 672, 673) is borne out not only by that case but also by Hoffman v Silbert (19 NY2d 661, affg 24 AD2d 493 [window in close proximity to ping-pang table]); Luftig v Steinhorn (16 NY2d 568, affg 21 AD2d 760 [hole in a baseball field]); and Lobsenz v Rubinstein (283 NY 600, affg 258 App Div 164 [hole or depression in a tennis court]), cited in Diderou, as well as by Scaduto v State of New York (supra); and Schmerz v Salon (19 NY2d 846, affg 26 AD2d 691), involving, respectively, a drainage ditch near the third base line and a hole in the base path, in both of which assumption of risk was considered although the case was decided on another basis.

There is no question that the doctrine requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk (McEvoy v City of New York, 292 NY 654, affg 266 App Div 445; Larson v Nassau Elec. R. R. Co., 223 NY 14), but awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff (Dillard v Little League Baseball, 55 AD2d 477, 480), and in that assessment a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport (see, Heldman v Uniroyal, Inc., 53 Ohio App 2d 21, 36, 371 NE2d 557, 567; Turcotte v Fell, supra). In that context plaintiffs effort to separate the wetness of the field, which he testified was above the grass line, from the mud beneath it in which his foot became lodged must be rejected for not only was he aware that there was "some mud” in the centerfield area, but also it is a matter of common experience that water of sufficient depth to cover grass may result in the earth beneath being turned to mud (Benjamin v Deffet Rentals, 66 Ohio St 2d 86, 91, 419 NE2d 883, 887, holding denial of summary judgment improper because "[i]t is common knowledge, however, that such a [plastic diving board] surface can be slippery, especially when it becomes wet”; Restatement [Second] of Torts § 496D comment d; Prosser and Keeton, Torts § 68, at 488 [5th ed]). We do not deal here, as we did in Schmerz v Salon (supra), with a hole in the playing field hidden by grass, but with water, indicative of the presence of mud, the danger of which plaintiff was sufficiently aware to complain to the grounds keepers. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results. Nor do the enhancement cases to which plaintiff refers in arguing that the risk of water on the field was enhanced by the failure to install proper drainage facilities (Stevens v Central School Dist. No. 1, 21 NY2d 780, affg 25 AD2d 871; Cole v New York Racing Assn., 17 NY2d 761, affg 24 AD2d 993; Jackson v Livingston Country Club, 55 AD2d 1045; Arnold v Schmeiser, 34 AD2d 568; see, Hornstein v State of New York, 30 AD2d 1012) avail plaintiff, for in each of those cases the enhanced risk that resulted was unknown to the particular plaintiff, whereas here the resulting risk (mud) was evident to plaintiff as is shown by his observation of mud and water and his complaints to the grounds keepers concerning the presence of water to the grass line.

Finally, although the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury (Stevens v Central School Dist. No. 1, supra; Jackson v Livingston Country Club, supra), dismissal of a complaint as a matter of law is warranted when on the evidentiary materials before the court no fact issue remains for decision by the trier of fact (Hoffman v Silbert, 19 NY2d 661, supra; Luftig v Steinhorn, 16 NY2d 568, supra; Lobsenz v Rubinstein, 283 NY 600, supra; Dillard v Little League Baseball, 55 AD2d 477, supra; Maltz v Board of Educ., 282 App Div 888, affg 32 Misc 2d 492; Benjamin v Deffet Rentals, supra). We are satisfied that this is such a case for, on the basis of those parts of plaintiff’s deposition above set forth, the defense of assumption of risk was clearly established, and plaintiff has not, as it was his burden to do (Zuckerman v City of New York, 49 NY2d 557, 562) brought himself within the rule of cases such as Broderick v Cauldwell-Wingate Co. (301 NY 182) by presenting evidence in admissible form that he had no choice in the matter but to obey a superior’s direction to continue notwithstanding the danger. Indeed, nothing in plaintiff’s affidavit or in so much of his deposition as is contained in the record suggests that he acted under such an order or compulsion, nor can we agree, notwithstanding the dictum in Porter v Avlis Contr. Corp. (57 AD2d 222, 225) or the irascibility of some baseball owners or managers, that we should infer that such an order had been given or that plaintiff acted under the compulsion of an unspoken order.

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

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

Order affirmed, with costs.

      . It also held in response to plaintiffs argument that assumption of the risk is unavailable to an employer who violates the statutory duty imposed by Labor Law § 200 to provide a safe place to work, that plaintiff was not within the class of persons protected by that section. Before us plaintiff has abandoned that argument and we, therefore, do not consider it.

      . The risk of which she was informed prior to participation were contained in "the instructions given by Buckeye’s employee to the participants [and] included the statements that the donkeys do buck and put their heads down causing people to fall off ” (65 NY2d, at p 163).

      . Though the opinion does not so state, Porter’s inference suggestion may perhaps be explained on the basis that it was an action for wrongful death to which the rule of Noseworthy v City of New York (298 NY 76) applied.


author: Jasen, J.

text:
    In the Matter of Stanley N. Ausbrooks et al., Respondents, v Roderick G. W. Chu et al., Constituting the New York State Tax Commission, Appellants.
    Argued October 9, 1985;
    decided November 19, 1985

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow, Robert Hermann and Peter H. Schiff of counsel), for appellants.
    There is substantial evidence in the record to support the determination of the State Tax Commission that the Copem partnerships were not carrying on a business in New York State or City within the contemplation of Tax Law §§ 637 and 703 during the years under review. (Blodgett v Silberman, 277 US 1; Matter of Pardee v State Tax Commn., 89 AD2d 294; Matter of Vogt v Tully, 53 NY2d 580; People ex rel. Nauss v Graves, 283 NY 382; Matter of Burrell v Lynch, 274 App Div 347; Moller v United States, 721 F2d 810; Matter of Merrick v Tully, 68 AD2d 289; Matter of Todd v State Tax Commn., 90 AD2d 244.)

      Joseph H. Murphy and E. Parker Brown, II, for respondents.
    The New York State limited partnerships named Copem 71, Copem Marts, Copem 72, and Copem 73 each carried on a business in New York State and New York City. Thus, losses sustained by these partnerships, and petitioners-respondents’ distributive share of these losses, were derived from or connected with New York State and New York City sources under the terms of Tax Law § 632 (b) (1) (B) and of the Administrative Code of the City of New York. Accordingly, petitioners-respondents’ share of partnership losses was a permissible deduction on their New York State nonresident personal income tax returns and on their New York City earnings tax returns for the audit years. (Matter of Vogt v Tully, 53 NY2d 580.)
   OPINION OF THE COURT

Jasen, J.

The issue presented upon this appeal is whether losses of limited partnerships claimed upon petitioners’ personal income tax returns were properly disallowed by the Tax Commission on the basis that said partnerships were not carrying on a business with a fair measure of permanency and continuity in New York State and New York City and that, therefore, the partnership losses were not derived from or connected with New York sources.

During the years in question — 1971, 1972 and 1977 — petitioners Stanley N. Ausbrooks and Virginia Ausbrooks were nonresidents of New York State who filed joint New York State nonresident personal income tax returns for 1971 and 1972, and nonresident New York State and New York City-personal income tax returns for 1977. During said years, petitioner was a partner in the accounting firm of Peat, Marwick, Mitchell & Co. (PMM). On the New York State returns, petitioner reported as New York source income his distributive share of partnership income derived from PMM, to the extent that his distributive share of partnership income was allocated to New York State sources on PMM’s partnership returns. Also included in the computation of total New York income for the years at issue, and directly implicated upon this appeal, was petitioner’s distributive share of income or losses derived from a series of limited partnerships known as Copem 71, Copem 72, Copem Marts and Copem 73 (hereinafter collectively referred to as Copem partnerships). The Copem partnerships were devised to permit petitioner and other active partners in PMM to participate in investment opportunities without risking a breach of PMM’s strict conflict of interests policy, which virtually precluded investment in publicly held corporations.

As determined by the Tax Commission, the Copem partnerships were all limited partnerships formed in accordance with and pursuant to the provisions of the New York Partnership Law. Each of the Copem partnerships had three general partners. Copem 71 had a total of 155 limited partners; Copem 72 had a total of 173 limited partners; Copem Marts had a total of 240 limited partners; and Copem 73 had a total of 173 limited partners. Participation in the Copem partnerships, either as a general or limited partner, was restricted to active partners of PMM. The Copem partnerships were funded through capital contributions made by its general and limited partners. As each partnership was formed, all active partners of PMM were invited to participate and, if they elected to participate, to subscribe in units varying from $1,250 to $2,000. Copem 71, Copem 72, Copem Marts and Copem 73 started with capital contributions of $1,272,300, $2,120,000, $2,926,250 and $1,908,000, respectively.

The Copem partnerships functioned by becoming limited partners in other partnerships (second-tier partnerships). These second-tier partnerships were all non-New York partnerships generally engaged in the business of acquiring, owning, holding, leasing, improving, developing, operating and managing real property, including the construction of commercial, industrial and residential buildings. All of the real property owned, held or leased by the second-tier partnerships was located outside of the State of New York. The Copem partnerships generally held a 50% interest in the profits and losses of the second-tier partnerships in which they invested. The Copem partnerships did not own any real property.

James W. Cumpton, a general partner in all four Copem partnerships, was the de facto chief executive officer of the Copem partnerships. The other two general partners served as an investment committee. Once partnership capital was invested in the second-tier partnerships, Cumpton would monitor the financing arrangements and operations of the second-tier partnerships. When the general partners of the Copem partnerships attended to Copem partnership matters during normal business hours, PMM would bill the Copem partnerships for said time, at the standard rate per hour. The Copem partnerships operated primarily out of Cumpton’s PMM office, located in Manhattan, and paid fees to PMM for its use of office space, filing cabinets and support staff. There was no written contract between the Copem partnerships and PMM with respect to the use of office space and equipment or the rate of reimbursement to be paid by the Copem partnerships.

Petitioner received notices of deficiency for the years 1971, 1972 and 1977, challenging petitioner’s deduction of his distributive share of Copem partnership losses for said years, upon the ground that the Copem partnerships were not carrying on business in New York State and New York City. The notices of deficiency were adjusted and sustained by the State Tax Commission which determined that the Copem partnerships were not carrying on business in New York State and New York City within the meaning and intent of Tax Law § 637 (a) (1) and § 632 (b) (1) (B) and Administrative Code of the City of New York, title U, chapter 46, § U46-1.0 (f), but, rather, served as personal investment vehicles for the partners of PMM.

Petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination of the State Tax Commission which sustained personal income tax assessments for the years 1971, 1972 and 1977. Without disturbing the factual findings of the Commission, the Appellate Division annulled the legal determination of the Commission, concluding that it was "not supported by substantial evidence”. For the reasons that follow, the judgment of the Appellate Division should be reversed and the determination of the State Tax Commission reinstated.

Tax Law § 637 (a) (1) provides that "[i]n determining New York adjusted gross income of a nonresident partner of any partnership, there shall be included only the portion derived from or connected with New York sources of such partner’s distributive share of items of partnership income, gain, loss and deduction entering into his federal adjusted gross income, as such portion shall be determined under regulations of the tax commission consistent with applicable rules of section six hundred thirty-two”. Section 632 (b) (1) (B), insofar as is relevant to this appeal, defines income and deductions from New York sources as "[i]tems of income, gain, loss and deduction derived from or connected with New York sources shall be those items attributable to * * * a business, trade, profession or occupation carried on in this state”.

Whether income and deductions are derived from or connected with New York sources is determined by reference to Commission regulations. (Tax Law § 637 [a] [1].) 20 NYCRR 134.1 (a) provides that a nonresident partner shall include in New York income his distributive share of partnership income, gain, loss and deduction to the extent such items are derived from or connected with a business carried on in New York State, as determined pursuant to 20 NYCRR 131.4 (a). It is provided by 20 NYCRR 131.4 (a) (2) that: "A business, trade, profession or occupation (as distinguished from personal services as an employee) is carried on within New York State by a nonresident when he occupies, has, maintains or operates desk space, an office, a shop, a store, a warehouse, a factory, an agency or other place where his affairs are systematically and regularly carried on, notwithstanding the occasional consummation of isolated transactions without New York State. This definition is not exclusive. Business is carried on within New York State if activities within New York State in connection with the business are conducted in New York State with a fair measure of permanency and continuity. A taxpayer may enter into transactions for profit within New York State and yet not be engaged in a trade or business within New York State. If a taxpayer pursues an undertaking continuously as one relying on the profit therefrom for his income or part thereof, he is carrying on a business or occupation”.

Also implicated, with respect to petitioner’s New York City income tax returns, are the New York City Administrative Code and provisions of the Internal Revenue Code. Administrative Code, title U, chapter 46, § U46-1.0 (f) defines net earnings from self-employment as: "the same as net earnings from self-employment as defined in subsection (a) of section fourteen hundred two of the internal revenue code * * * However, 'trade or business’ as used in subsection (a) of section fourteen hundred two of such code shall mean the same as trade or business as defined in subsection (c) of section fourteen hundred two of such code”. Internal Revenue Code § 1402 (a) (26 USC), as permitted herein, defines net earnings from self-employment as an individual’s: "distributive share * * * of income or loss described in section 702 (a) (8) from any trade or business carried on by a partnership of which he is a member”. Internal Revenue Code § 1402 (c) provides that: "The term 'trade or business’, when used with reference to self-employment income or net earnings from self-employment, shall have the same meaning as when used in section 162 (relating to trade or business expenses)”.

In determining whether an enterprise is carrying on business in New York State and New York City, within the meaning and intent of Tax Law § 637 (a) (1) and § 632 (b) (1) (B) and Administrative Code § U46-1.0 (f), certain objective factors must be weighed, including: (1) whether the business is "systematically and regularly carried on” in New York (20 NYCRR 131.4 [a] [2]); (2) whether activities within the State in connection with the business are conducted in this State with a "fair measure of permanency and continuity” (20 NYCRR 131.4 [a] [2]); and (3) whether the management of partnership assets, located outside of the State of New York, is passive or active (Matter of Vogt v Tully, 53 NY2d 580). In sum, an enterprise is carrying on business in New York, for tax purposes, where there exists a reasonably systematic and continuous transactional nexus between this State and the enterprise. In this case, the Tax Commission correctly held that the Copem partnerships did not carry on business in New York.

The concept of carrying on a business, as utilized in tax statutes, connotes something more than investment and receipt of income. (People ex rel. Nauss v Graves, 283 NY 383, 386.) The Copem partnerships functioned by becoming limited partners in so-called second-tier partnerships. The second-tier partnerships were located outside of New York, and the real estate ventures engaged in by the second-tier partnerships were similarly located out-of-state. The Copem partnerships had no right to manage the property or aifairs of the second-tier limited partnerships. The Copem partnerships owned no real property. The commercial activity of the Copem partnerships, which, by necessity, was directly correlated to the situs of business conducted by the second-tier partnerships, was located outside of the State of New York. The general oversight exercised by the Copem partnerships of non-New York investments was not a "permanent and continuous” link between the business and this State (20 NYCRR 131.4 [a] [2]), but an incidental and ancillary function to the out-of-state commercial activity of the second-tier partnerships. Under these circumstances, it cannot be said that the out-of-state real estate ventures bore a "systematic or regular” connection to this State (20 NYCRR 131.4 [a] [2]). Inasmuch as operational control of the out-of-state real estate ventures rested exclusively with the second-tier partnerships, the Copem partnerships’ involvement in said ventures constituted a role of passive investment — not active management. Thus, the Copem partnership losses were not derived from or connected with New York sources, and deductions based thereon were properly disallowed by the Tax Commission.

Finally, the case of Matter of Vogt v Tully (79 AD2d 758, revd 53 NY2d 580, supra), relied upon by the Appellate Division is distinguishable from the case before us. In Matter of Vogt, the Endeavor Car Company (Endeavor), a New York limited partnership, purchased, financed and leased railroad tank cars. PPG Industries (PPG), an out-of-state corporation engaged in the production of glass, basic chemicals, coatings, and resins, used a large number of railroad tank cars to transport its products. Endeavor was formed to purchase used tank cars from PPG and new tank cars from their manufacturer, and thereafter lease the tank cars to PPG. Under the terms of its lease with Endeavor, PPG assumed liability and agreed to indemnify Endeavor against all obligations and claims relating to or arising out of the operation of the equipment, and also assumed maintenance and repair costs. Endeavor and PPG reflected an integrated operation. Endeav- or’s single commercial purpose, and contractual relationship with PPG, created a systematic and continuous connection with New York. Moreover, Endeavor maintained a direct proprietary interest in partnership assets — the railroad tank cars. It was due to this systematic transactional nexus between Endeavor and PPG that George R. Vogt, a limited partner in Endeavor, was permitted to deduct his distributive share of losses incurred by Endeavor. In contrast, the relationship between the Copem partnerships and the second-tier partnerships constituted a series of isolated investments, whereby the Copem partnerships derived no direct ownership interest in second-tier partnership assets. The transactional continuity and degree of integration which existed between PPG and Endeavor in Matter of Vogt is simply not present in this case.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission reinstated.

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

Judgment reversed, etc.

      . Petitioner Virginia Ausbrooks is involved in this proceeding solely by reason of filing joint income tax returns with Stanley N. Ausbrooks. Accordingly, the term "petitioner” hereinafter refers only to Stanley N. Ausbrooks.

      . Petitioner’s 1977 Nonresident Earnings Tax Return for New York City reported net earnings from self-employment.

      . Copem Partnership Second-Tier Partnership
      Copem 71 (1) Crow-71, Ltd.
      (2) Baker-Jones-Crow-71, Ltd.
      (3) El Dorado Vineyard, Co.
      Copem 72 (1) Calabassas Crest, Ltd.
      (2) Horizon Village Apartments
      (3) El Dorado Vineyard, Co.
      (4) Copem 72 — Mesa Petroleum, Co.
      (5) Cal Park Bldg., Ltd.
      (6) Copem Marts
      (7) Kyp Properties, Ltd.
      (8) McKinley Arms Apt., Co.
      (9) Santa Barbara Townhouse, Ltd.
      (10) 1617 Westcliff Dr., Ltd.
      (11) Ventura/Ojai, Ltd.
      Copem Marts (1) Rope Associates, Ltd.
      Copem 73 (1) Rospec Associates
      (2) Park Plaza II, Ltd.
      (3) Santa Clara Office Bldg.


author: Chief Judge Wachtler.

text:
    Flora A. Schrempf, as Executrix of Albert R. Schrempf, Deceased, Respondent, v State of New York, Appellant.
    Argued October 9, 1985;
    decided November 19, 1985

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter H. Schiff, Robert Hermann and Vernon Stuart of counsel), for appellant.
    I. The State of New York did not have a special relationship or special duty to the decedent and there was no basis for holding it liable even if the conclusions of medical malpractice or negligence had a legal basis. (Pulka v Edelman, 40 NY2d 781; Motyka v City of Amsterdam, 15 NY2d 134; Evers v Westerberg, 38 AD2d 751, 32 NY2d 684; Garrett v Town of Greece, 78 AD2d 773, 55 NY2d 774; Satiro v City of New Rochelle, 102 AD2d 821, 64 NY2d 614; Yearwood v Town of Brighton, 101 AD2d 498, 64 NY2d 667; De Long v County of Erie, 60 NY2d 296; Vitale v City of New York, 60 NY2d 861; Napolitano v County of Suffolk, 92 AD2d 931, 61 NY2d 863.) II. There was no warrant for the conclusions below that the State’s physician was guilty of malpractice and negligence essentially because she did not commit Evans as an involuntary inpatient or take steps to force him to take prescribed medication regularly while an outpatient. (Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Koenigsmark v State of New York, 80 AD2d 707, 55 NY2d 928; St. George v State of New York, 283 App Div 245, 308 NY 681; Taig v State of New York, 19 AD2d 182; Paradies v Benedictine Hosp., 77 AD2d 757; Centeno v City of New York, 48 AD2d 812, 40 NY2d 932.)

      Wilfred E. Hoffmann for respondent.
    I. The lone dissent has no legal support and is founded on facts not supported by the record. (Clark v State of New York, 99 AD2d 616; Miller v Albany Med. Center Hosp., 95 AD2d 977; Eady v Alter, 51 AD2d 991; Ranelli v Society of N. Y. Hosp., 295 NY 850; Semler v Psychiatric Inst., 538 F2d 121, cert denied sub nom. Folliard v Semler, 429 US 827; Lipari v Sears, Roebuck & Co., 497 F Supp 185; Hicks v United States, 511 F2d 407.) II. A review of claimant’s, as well as the State’s, testimony demonstrate the decision not to take the steps referred to in the trial court’s decision constituted malpractice as well as simple negligence. (Weihs v State of New York, 267 App Div 233; Williams v State of New York, 308 NY 548; Palsgraf v Long Is. R R. Co., 248 NY 339; Munsey v Webb, 231 US 150; Robert v United States Shipping Bd. Emergency Fleet Corp., 240 NY 474; Homere v State of New York, 48 AD2d 422; Hale v State of New York, 53 AD2d 1025; Miller v Albany Med. Center Hosp., 95 AD2d 977; Eady v Alter, 51 AD2d 991; Cameron v State of New York, 37 AD2d 46, 30 NY2d 596.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Claimant’s husband was stabbed and killed by Joseph Evans, a mental patient who had been released from a State institution and was still receiving outpatient care from that facility. In a suit for wrongful death the Court of Claims found the State liable for negligently failing to have the assailant committed as an inpatient sometime prior to the assault. The Appellate Division affirmed, with one justice dissenting.

On this appeal, the State of New York urges that the claim be dismissed for two reasons. First, it argues that the State cannot be held liable for failure to prevent a criminal act unless it had a special relationship with the victim, which concededly was not proven in this case. Second, it is urged that the decisions of the State psychiatrist fell within the area of professional medical judgment and thus cannot serve as a basis for a negligence or malpractice award. For the reasons that follow, we agree with the State’s second contention and reverse the Appellate Division’s order.

In December 1981 claimant’s husband, Albert Schrempf, was employed at Consolidated Industries of Greater Syracuse, Inc., a private nonprofit organization which provides vocational rehabilitation for outpatients from mental institutions. On December 9, 1981 he was stabbed to death at his place of employment by Joseph Evans, a 27-year-old outpatient from Hutchings Psychiatric Institute, a State mental facility.

Evans had been admitted for treatment at Hutchings on six occasions beginning in May 1979. The admissions usually followed violent altercations with members of his family and involved some property damage and attempted assaults, but not the infliction of personal injury. On these occasions he claimed that he was prompted by inner voices commanding him to act. He was generally diagnosed as a manic depressive hypomanic type or, more rarely, as a paranoid schizophrenic, which were described at trial as degrees of the same general condition. Three of the admissions involved commitments as an inpatient; three were on outpatient status. Several of the admissions were voluntary. Evans generally resented the involuntary commitments and sometimes responded with threats against staff members or resorted to violent resistance. On one occasion, he broke the jaw of another patient.

Evans’ condition was generally improved or stabilized by psychotherapy and medication which could be provided on an outpatient basis. However, he was a difficult outpatient because he had an erratic attendance record and did not regularly take prescribed medications. He was sensitive to, and had an adverse reaction to, certain drugs and sometimes stated that he would not take his medication because it was against his religion.

Evans’ last involuntary commitment as an inpatient ended in January of 1981. In the summer of that year, he broke windows in his mother’s house and subsequently pleaded guilty to criminal mischief. He was sentenced to probation and his probation officer suggested that he seek psychiatric treatment.

On September 28, 1981 he returned to Hutchings and was voluntarily admitted. He was examined on that occasion by the psychiatrist who had first admitted him in 1979 and who had also treated him on most of his subsequent admissions. She found that he was experiencing "persecutory delusions” that he was possessed and might be changing into a homosexual. However, she noted that he was calm and remained cooperative. Based on the examination and her knowledge of his psychiatric history, she determined that he was again suffering from manic depression and that at that time he did not pose a risk to himself or others. She placed him on outpatient status but assigned him to a special clinic for recalcitrant outpatients so that his use of the medication could be monitored.

In October Evans worked at a part-time job, without apparent incident. In November he was referred by his probation officer to Consolidated Industries for vocational rehabilitation. He participated in that program on a trial basis for approximately 10 days over the next three or four weeks.

Throughout this period his participation in the outpatient program diminished. In October he said he did not want to come any more because he had a job. He rarely met with his psychiatrist in October and did not see her after November 1. He did not regularly go to the clinic for his medication in October, and in November only appeared on two dates, November 9 and November 30.

His psychiatrist encouraged him to continue in the outpatient program and to take his medication. When he complained that the drugs made him drowsy at work, she reduced the dosage and directed him to take the medicine at night. On November 17 she informed his probation officer that he was not taking his medication. She also monitored his behavior through the probation officer and others and found no evidence that his condition was deteriorating. On the contrary, she was informed that he appeared to be polite and cooperative by all who observed him at the clinic, the probation office and Consolidated Industries. Indeed he was being considered for permanent membership at Consolidated at the time of the assault on December 9, 1981.

At the trial, the claimant urged that the State had been negligent in the care and treatment of Evans by releasing him and permitting him to remain on outpatient status in 1981, particularly after his psychiatrist had reason to believe he was not taking his medication as prescribed. The Court of Claims held that the decision to release Evans in January 1981 involved a medical judgment for which the State could not be held liable. However, the court concluded that the State was negligent in admitting Evans to outpatient care, instead of confining him as an inpatient in September 1981. The court also held that the State psychiatrist should have done "something more” when it became evident that the patient was not taking his prescribed medication.

The Appellate Division affirmed, without opinion. One justice dissented on the ground that the State, if negligent, should not be held liable for the assault on a third party under the facts of this case (107 AD2d 1042).

The claim should have been dismissed. As noted, the State’s first contention on this appeal is that the claim should have been dismissed because the claimant failed to establish a special relationship between the State and the injured party. The claimant concedes that such a relationship was not established, but argues that it is not necessary where it is alleged that the State’s negligent care and treatment of a mental patient has resulted in injury to a third party.

The State’s argument is based on the basic principle that the State cannot be held liable for negligent failure to perform governmental activities, such as providing police and fire protection or law enforcement generally, unless a special relationship had been established between the State and the person injured (De Long v County of Erie, 60 NY2d 296; O’Connor v City of New York, 58 NY2d 184; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Garrett v Town of Greece, 55 NY2d 774; Riss v City of New York, 22 NY2d 579). It is urged, that this principle is applicable here because the essence of the complaint is the State’s negligent failure to prevent Evans from criminally assaulting claimant’s husband. The rule, however, has no application in cases where the State engages in a proprietary function (Miller v State of New York, 62 NY2d 506; Bass v City of New York, 38 AD2d 407, affd no opn 32 NY2d 894), such as providing medical and psychiatric care (see, Riss v City of New York, supra, at pp 581-582). In those cases, the State is held to the same duty of care as private individuals and institutions engaging in the same activity (Miller v State of New York, supra, at p 511; Bernardine v City of New York, 294 NY 361; Court of Claims Act § 8; see also, Koenigsmark v State of New York, 55 NY2d 928; Cohen v State of New York, 51 AD2d 494, affd 41 NY2d 1086; St. George v State of New York, 283 App Div 245, affd no opn 308 NY 681; Daley v State of New York, 273 App Div 552, affd no opn 298 NY 880).

This latter standard has been consistently applied in cases where it is alleged that negligent care of a mental patient by the State or one of its subdivisions has produced injury to the patient or others (Koenigsmark v State of New York, supra, [attempted suicide by patient after escape]; Centeno v City of New York, 40 NY2d 932, affg on Per Curiam 48 AD2d 812 [suicide by patient after release]; Cameron v State of New York, 37 AD2d 46, affd no opn 30 NY2d 596 [assault on others after release]; Hirsch v State of New York, 8 NY2d 125 [suicide by patient in hospital]; Scolavino v State of New York, 297 NY 460 [assault on another patient]; Bell v New York City Health & Hosps. Corp., 90 AD2d 270 [patient suicide after release]; Homere v State of New York, 48 AD2d 422 [assault on others after release]; Curley v State of New York, 148 Misc 336, affd sub nom. Luke v State of New York, 253 App Div 783 [assault on visitor]; cf. Excelsior Ins. Co. v State of New York, 296 NY 40). "The State has frequently been held liable for the consequences of its breach of duty to protect others from the acts of the mentally ill confined to State institutions (Scolavino v. State of New York, 297 N. Y. 460; Weihs v. State of New York, 267 App. Div. 233; Jones v. State of New York, 267 App. Div. 254; Joachim v. State of New York, 180 Misc. 963; Curley v. State of New York, 148 Misc. 336, affd. sub nom. Luke v. State of New York, 253 App. Div. 783, and see Martindale v. State of New York, 269 N. Y. 554; Dow v. State of New York, 183 Misc. 674). In such cases, where the confinement is not in the nature of punishment, but rather of restraint and, where possible, cure, there is both a duty to the inmate to provide him with reasonable rehabilitational conditions under the circumstances and to the outside public to restrain the dangerous, or potentially dangerous, so that they may not harm others.” (Williams v State of New York, 308 NY 548, 554-555.) This duty has been recognized, not only in cases where the State has been negligent in permitting a mental patient to escape (Koenigsmark v State of New York, supra; Higgins v State of New York, 24 AD2d 147; Weihs v State of New York, 267 App Div 233; Jones v State of New York, 267 App Div 254; cf. Excelsior Ins. Co. v State of New York, supra), but also when it has been negligent in discharging a mental patient (St. George v State of New York, supra; Taig v State of New York, 19 AD2d 182; Cameron u State of New York, supra; Homere v State of New York, supra), or releasing him to outpatient care (Bell v New York City Health & Hosps. Corp., supra; Statini v State of New York, 202 Misc 689).

A physician’s duty is to provide the level of care acceptable in the professional community in which he practices (Toth v Community Hosp., 22 NY2d 255). He is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment (Pike v Honsinger, 155 NY 201; DuBois v Decker, 130 NY 325). The "line between medical judgment and deviation from good medical practice is not easy to draw” particularly in cases involving psychiatric treatment (Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 684).

Although in the past, the care of those suffering from mental infirmities was generally limited to confinement, the modern and more humane policy of the medical profession and the law contemplates returning the mental patient to society, if he does not pose an immediate risk of harm to himself or others (Excelsior Ins. Co. v State of New York, supra, at p 46; cf. Matter of Torsney, 47 NY2d 667). This, we have noted, requires a sensitive appraisal of competing interests: "(1) the State’s duty to treat and care for its mental defective wards, with an eye toward returning them to society more useful citizens, and (2) the State’s concern that the inmates in its institutions cause no injury or damage to the property of those in the vicinity.” (Excelsior Ins. Co. v State of New York, supra, at p 46). Because psychiatry is not an exact science, decisions with respect to the proper course of treatment often involve a calculated risk and disagreement among experts as to whether the risk was warranted or in accord with accepted procedures (Taig v State of New York, 19 AD2d 182 [Bergan, J.], supra; see also, Centeno v City of New York, supra). These circumstances necessarily broaden the area of professional judgment to include treatments tailored to the particular case, where the "accepted procedure” does not take into account factors which the treating physician could reasonably consider significant (Topel v Long Is. Jewish Med. Center, 55 NY2d 682, supra; Centeno v City of New York, supra; Taig v State of New York, supra; see also, Fiederlein v New York City Health & Hosps. Corp., 80 AD2d 821, affd 56 NY2d 573).

In the case now before us, the Court of Claims concluded that the State should have admitted Evans as an inpatient when he presented himself for treatment in September 1981, and that the failure to do so constituted a departure from accepted medical practice. The court recognized that one of the claimant’s experts rejected that view, but felt that the claimant’s other expert, Dr. Goldfarb, supported it. Although Dr. Goldfarb stated at one point that that was his opinion, he unequivocally stated in his subsequent testimony that he did not consider the treating physician’s decision to be wrong or negligent and that he was simply proposing an alternative. Because all of the experts agreed that the decision to place Evans on outpatient status in September 1981 was either proper or consistent with accepted standards of practice, the court’s findings that this constituted negligence cannot stand.

The only remaining question is whether the treating physician was negligent in failing to intervene in some manner once she had reason to believe that Evans was not taking his medication as prescribed. In view of the fact that Evans was a voluntary outpatient, the State’s control over him, and consequent duty to prevent him from harming others, is more limited than in cases involving persons confined to mental institutions. Even the claimant’s experts did not agree as to what should and could be done with such a patient. They variously proposed compelling or coercing him to resume medication, changing the medication to a drug with longer lasting effects, conducting a full reexamination of him, initiating involuntary commitment proceedings or threatening him with commitment if he did not cooperate. The court held that the treating psychiatrist should have done "something more”, and suggested that "at the very least, an in-depth psychiatric evaluation should have been conducted to determine Evans’ level of functioning.” The court did not indicate what should have been done had Evans refused to cooperate.

One point on which all the experts agreed was that the patient’s failure to take his medication did not necessarily mean that his condition was deteriorating or that he would become dangerous. That would largely depend on his behavior and, again, there was agreement that his outward appearance and behavior did not show any "warning signs” indicative of this kind of change. Although claimant’s experts ignored or discounted these factors, they played a significant role in the attending physician’s assessment. They indicated to her that there was a chance that his condition was improving as it appeared to be, and suggested a corresponding risk that intervention by resort to aggressive measures might disrupt the process. As noted, she knew from past experience that he resented involuntary treatment and often responded violently in that setting. Thus, there were risks either way. The treating physician, as she testified at trial, simply attached greater significance to those factors which seemed most promising and chose the course which appeared to offer the best opportunity for long-term rehabilitation. We know with hindsight that it was a mistaken impression. However, under the circumstances, it must be recognized as an exercise of professional judgment for which the State cannot be held responsible.

Accordingly, the order of the Appellate Division should be reversed and the claim dismissed.

Judges Jasen, Meyer, Kaye, Alexander and Titone concur; Judge Simons taking no part.

Order reversed, with costs, and claim dismissed.


text:
    In the Matter of Lower Manhattan Loft Tenants et al., Appellants, v New York City Loft Board et al., Respondents.
    Argued October 14, 1985;
    decided November 19, 1985

      POINTS OF COUNSEL

      Jeffrey S. Ween, Sara Brenner, Beatrice Lesser, Arthur Rhine and Richard Mayo for appellants.
    I. The court below applied an inappropriate standard in reviewing the propriety of an agency-promulgated rule. (Board v Hearst Pub., 322 US 111; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of Jones v Berman, 37 NY2d 42; Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Walter & Samuels v New York City Conciliation & Appeals Bd., 81 AD2d 212; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588.) II. The court below erred in failing to recognize the Legislature’s carefully balanced scheme to compel and effectuate legalization of substandard housing. (Axelrod Co. v Dixon Studio, 122 Misc 2d 770; Bright Homes v Wright, 8 NY2d 157; Sexauer & Lemke v Burke & Sons Co., 228 NY 341; Matter of MalpicaOrsini, 36 NY2d 568, appeal dismissed sub nom. Orsini v Blasi, 423 US 1042; Kaufman v American Electrofax Corp., 102 AD2d 140; Ancona v Metcalf, 120 Misc 2d 51; Shielcrawt v Moffett, 268 App Div 352, 294 NY 180; People v Kearse, 58 Misc 2d 277; People ex rel. Tipaldo v Morehead, 270 NY 233.) III. The Legislature did not delegate authority to the Loft Board to promulgate Regulation J (1) (a). (Haddad Corp. v Redmond Studio, 102 AD2d 730; Ancona v Metcalf, 120 Misc 2d 51; 465 Greenwich St. Assoc. v Schmidt, 116 Misc 2d 62.) IV. Having acted without the requisite legislative authority, the Loft Board’s promulgation of substantive rule regarding eviction was ultra vires and an unconstitutional usurpation of the legislative function. (Matter of Nicholas v Kahn, 47 NY2d 24; Darweger v Staats, 243 App Div 380, 267 NY 290; Brown v University of State of N. Y., 242 App Div 85, 266 NY 598; Matter of Levine v Whalen, 39 NY2d 510; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Matter of Bates v Toia, 45 NY2d 460; Ross v Arbury, 206 Misc 74, 285 App Div 886; Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Hudson v Sipprell, 76 Misc 2d 684; Civil Serv. Employees Assn. v County of Oneida, 78 AD2d 1004, 53 NY2d 603.) V. Assuming, arguendo, the propriety of the application by the court below of the Howard v Wyman standard, Regulatian J (1) (a) must be invalidated. (Matter of Howard v Wyman, 28 NY2d 434; Axelrod Co. v Dixon Studio, 122 Misc 2d 770; Dworkin v Duncan, 116 Misc 2d 853; Ancona v Metcalf, 120 Misc 2d 51; Kaufman v American Electrofax Corp., 102 AD2d 140.) VI. The plain meaning of the statutory language invalidates the Loft Board’s inharmonious and inconsistent regulation. (Kaufman v American Electrofax Corp., 102 AD2d 140.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Nanette Dembitz, Francis F. Caputo and Lisa S. J. Yee of counsel), for New York City Loft Board and others, respondents.
    I. The primary residence regulation is a valid exercise of the Loft Board’s authority to apply the Loft Law in accordance with its purpose and intent. (Matter of Barie v Lavine, 40 NY2d 565; Matter of Bates v Toia, 45 NY2d 460; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Lipkis v Pikus, 103 AD2d 682; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; Ostrer v Schenck, 41 NY2d 782; Chemical Workers v Pittsburgh Glass, 404 US 157; Red Lion Broadcasting Co. v FCC, 395 US 367; Matter of Howard v Wyman, 28 NY2d 434.) II. The primary residence requirement of the regulation is a valid implementation of the similar provision of the Emergency Tenant Protection Act of 1974, which act is incorporated by reference in the Loft Law. (Matter of Zeitlin v New York City Conciliation & Appeals Bd., 46 NY2d 992; Mandel v Pitkowsky, 102 Misc 2d 478, 76 AD2d 807; Lee v Gasoi, 113 Misc 2d 760; Sonmax, Inc. v City of New York, 43 NY2d 253; Matter of Anderson v Board of Educ., 46 NY2d 360, 38 NY2d 897.)

      Gary M. Rosenberg, Sherwin Belkin and Susan Rosenblum Lipp for 655 Realty Associates, respondent.
    I. Regulation J (1) (a) is in harmony with the underlying purposes and policies of Multiple Dwelling Law article 7-C. (Matter of Levine v Whalen, 39 NY2d 510; Matter of 241 E. 22nd St. Corp. v City Rent Agency, 33 NY2d 134; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Matter of Nicholas v Kahn, 47 NY2d 24; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Ostrer v Schenck, 41 NY2d 782; Matter of Jones v Berman, 37 NY2d 42; Matter of Huntington TV Cable Corp. v State of New York Commn. on Cable Tel., 94 AD2d 816, 61 NY2d 926.) II. The Loft Board properly promulgated Regulation J (2) of the Loft Board regulations.
   OPINION OF THE COURT

Meyer, J.

Regulation J (1) (a), issued by the New York City Loft Board, which permits the landlord of an interim multiple dwelling registered with the Board pursuant to article 7-C of the Multiple Dwelling Law to evict a residential occupant of a unit, who has no lease or rental agreement with the landlord, on the ground "that the unit is not the primary residence of such residential occupant,” was within the Board’s authority to issue under article 7-C and is valid. The order of the Appellate Division should, therefore, be affirmed, with costs.

Petitioners are a tenants’ association and five individuals who occupy loft space in buildings owned by respondents New York University, Chand Realty Associates and 655 Realty Associates. Each individual was served with a notice of termination by his or her landlord pursuant to Regulation J (1) (a). They and the Association then began an article 78 proceeding against the Loft Board and the landlords seeking to have the regulation declared ultra vires and invalid. In that proceeding they sought an order restraining the landlords from seeking possession. The papers submitted by petitioners on the latter application and in response to the landlords’ motion to dismiss include the depositions of petitioners Close and Eisenstein taken in prior proceedings between the parties and an affidavit filed in that prior litigation which establish that the space occupied by petitioners Close, Eisenstein and Molner is not his or her primary residence. Furthermore, the petition in the present proceeding contains no allegation as to any of the individuals that the space occupied is his or her primary residence.

Special Term’s order and judgment converted the proceeding to an action for declaratory judgment, declared the regulation "invalid as an exercise of legislative power,” declared the notices of termination void, and enjoined the landlords from prosecuting any proceeding for possession based upon Regulatian J (1) (a). On appeal by the Loft Board and the landlords, the Appellate Division modified, on the law, by striking all decretal paragraphs except that converting the proceeding, declared the regulation valid, and otherwise affirmed.

The essence of petitioners’ argument is that because article 7-C refers to a "residential occupant qualified for protection” but, unlike the Emergency Housing Rent Control Law (McKinney’s Uncons Laws of NY § 8582 [2] [1 ] [L 1946, ch 274, § 2, as amended]); the Local Emergency Housing Rent Control Act (McKinney’s Uncons Laws of NY § 8605 [L 1962, ch 21, as amended]); the Emergency Tenant Protection Act of 1974 (ETPA) (McKinney’s Uncons Laws of NY § 8625 [a] [ii] [L 1974, ch 576, § 4, as amended); the New York City-Rent and Rehabilitation Law (Administrative Code of City of New York § Y51-3.0 [e] [2] [i] [10]), and the New York City Rent Stabilization Law (Administrative Code § YY51-3.0 [a] [1] [f]), nowhere makes "primary residence” a qualification, and in defining an "interim multiple dwelling” refers to "residence or home,” the regulation constitutes an unauthorized extension of the statute. They argue also that to construe the article as did the Appellate Division is to frustrate the legislative purpose. For a number of reasons we disagree.

First, the argument is based upon a skewed view of the Legislature’s purpose in enacting the article. The legislative findings set forth in Multiple Dwelling Law § 280 begin with the statement "that a serious public emergency exists in the housing of a considerable number of persons * * * which emergency has been created by the increasing number of conversions of commercial and manufacturing loft buildings to residential use without compliance” with applicable laws and standards (emphasis supplied). It also contains the declaration "that as a consequence of the acute shortage of housing * * * the tenants in such buildings would suffer great hardship if forced to relocate”, and that governmental intervention is necessary "to establish a system whereby residential rentals can be reasonably adjusted so that residential tenants can assist in paying the cost of such legalization without being forced to relocate” (emphasis supplied). Thus, the emphasis is upon residential use and residential tenants being forced to undergo the hardship of relocation. Neither in the legislative findings nor in the other sections of the article is there any reference to protection of the tenant with respect to the commercial or work use of the premises. Yet if any residential use, however limited in time or space, is sufficient, the statute is effectively turned on its head.

The purpose of article 7-C comes into focus when one looks at former article 7-B of the Multiple Dwelling Law, now article 27 of the Arts and Cultural Affairs Law, which was enacted in 1964, some 18 years before article 7-C became law in 1982. As originally enacted, article 7-B contained in its section 275 the legislative finding that "persons regularly engaged in the visual fine arts generally find it financially impossible to maintain quarters for the pursuit of their artistic endeavors separate and apart from their places of residence” and that there existed buildings occupied in the past for commercial and manufacturing purposes suitable "for use by persons regularly engaged in the visual fine arts for the combined purposes of pursuit of their artistic endeavors and residences.” As amended by chapter 853 of the Laws of 1977 and now contained in article 27 of the Arts and Cultural Affairs Law, former article 7-B was expanded in purpose to cover "general residential occupancy of loft, commercial or manufacturing buildings,” and former section 275, now Arts and Cultural Affairs Law § 27.01, contains the further declaration that "legislation governing the alteration of such buildings to accommodate general residential use must of necessity be more restrictive than statutes heretofore in effect, which affected only joint living-work quarters for artists.”

Evident from the history of the enactment of article 7-C, which includes the previously existing more broadly purposed article 7-B, and from the legislative findings in section 280, is the legislative purpose to protect the residential aspect of occupancy of an interim multiple dwelling rather than to shield the tenant whose use is essentially commercial and only incidentally residential.

Secondly, petitioners, relying on the decision in Axelrod Co. v Dixon Studio (122 Misc 2d 770), the use in section 281 (1) of the phrase "residence or home,” the rule that a statute must be read to give meaning to each word in it (Matter of Smathers, 309 NY 487, 495; McKinney’s Cons Laws of NY, Book 1, Statutes § 98 [a]) and the distinction drawn between residence and domicile in the law of wills (Matter of Newcomb, 192 NY 238) and of venue (Siegel, NY Prac § 118, at 147-148), argue that article 7-C protects "all residential occupants” (emphasis in original) and that the regulation has in effect eliminated the word "residence” from the statute.

The fallacy of the argument lies in part in its analogy to case law construing statutes with purposes very different from that of article 7-C, but in the main in the selection of words from the statute upon which it is based. The word "or” between "residence” and "home” suggests a distinction between "residence” and "home” which completely disappears when used, as it is in section 281 (1) (iii), as part of the phrase "the residence or home” (emphasis supplied). "The”, as Webster’s Third New International Dictionary (at 2368) informs us, "refers to someone or something that is unique * * * or exists as only one at a time.” Ergo, "the residence or home” as used in section 281, cannot properly be construed to exclude primary residence as a measure of its protection.

Thirdly, petitioners’ argument that the reference to "primary residence” in the other rent control statutes and its absence from article 7-C mandates construction of the latter article to cover any residence, no matter how many other residences the occupant may have, overlooks the rule, recognized by us in Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach (39 NY2d 1029) in affirming on the opinion at Special Term (79 Misc 2d 438), that statutes in pari materia are to be construed together and "as intended to fit into existing laws on the same subject unless a different purpose is clearly shown” (79 Misc 2d, at p 444). Here, as in Delaware Midland, if article 7-C is read as petitioners would read it, "the priority of need” (id.) is indeed reversed and an absurd result produced. The progression from article 7-B’s initial protection of loft-tenant artists who lived and worked in the same space because they could not afford to do otherwise to the present provisions governing general residential use of loft space contained in article 7-C and Arts and Cultural Affairs Law article 27, evidences a greater legislative commitment to alleviation of the housing shortage by making more residential space available, yet article 7-C, according to petitioners, contains less authority to do so as concerns a multiresidenced loft tenant, provided only that he or she makes some residential use of some part of the space. If we ignore the statute’s use of "the residence” referred to above and concentrate only on the absence from article 7-C of the word "primary,” it is nevertheless true, as we declared in Abood v Hospital Ambulance Serv. (30 NY2d 295, 298), that effectuation of the Legislature’s purpose being the primary guide, "the literal language of the statute, where it does not express the statute’s manifest intent and purpose, need not be adhered to” (see, Loft Realty Co. v Aky Hat Corp., 123 Misc 2d 440). What petitioners seek by their construction is protection of commercial tenants who have separate residential space, a purpose not within the Legislature’s 1964, 1977 or 1983 findings and declarations of purpose and not suggested by any of article '7-C’s provisions.

Finally, as the Appellate Division noted (104 AD2d, at p 226), Multiple Dwelling Law § 286 (13) provides that "[t]he applicability of the emergency tenant protection act of nineteen seventy-four to buildings occupied by residential tenants qualified for protection pursuant to this article shall be subject to a declaration of emergency by the local legislative body”, such a declaration was made by Resolution No. 369, dated April 26, 1983, of the New York City Council and, as already noted, ETPA § 5 (A) (11) (McKinney’s Uncons Laws of NY § 8625 [a] [11]) contains a primary residence requirement. Petitioners point to the specific references to the ETPA in subdivisions 3 and 7 of section 286 and the requirement of subdivision 3 that upon approval by the Loft Board after conversion as to compliance with required standards, "each residential occupant qualified for protection” shall be offered a residential lease subject to the eviction provisions of the ETPA "except to the extent the provisions of this article are inconsistent with such act.” From that language they argue that the City Council’s declaration should not be deemed to bring into play a primary residence requirement until after a tenant has received the benefits of the ETPA in the form of a residential lease. To permit eviction of a nonprimary resident prior to that time would, they contend, frustrate the intent of the Legislature to encourage prompt legalization of substandard housing.

The argument proves too much. The last sentence of section 281 (3) establishes that even if a portion of a building is an interim multiple dwelling, nonresidential space in the building is exempt from article 7-C. Thus, the Legislature intended to encourage conversion to conforming residential use only to the extent that there was in fact residential use of the particular space within the meaning of the article, which, as we have seen, required that the space be occupied as "the residence or home” of the occupant (§ 281 [1]). To construe the statute as not imposing on the property owner the obligation of converting space which is used only incidentally or occasionally as housing by an occupant who has other housing can hardly be said to frustrate the Legislature’s intent to alleviate the acute shortage of housing. Moreover, petitioners’ construction would contravene the rule that a statute is to be construed so as to sustain its constitutionality (Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143, 148; McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [c]), for it would raise a serious question concerning the relationship of the burden imposed upon the property owner to alleviation of the housing shortage which, by enactment of the article, the Legislature sought to achieve.

For all of the foregoing reasons, we conclude that Regulation J (1) (a) is valid and that the order of the Appellate Division should, therefore, be affirmed, with costs.

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

Order affirmed, with costs.

      . The regulation, which is entitled Eviction of Residential Occupants, reads as follows:
      "1. The landlord of an IMD registered with the Loft Board may bring eviction proceedings against the residential occupant of a unit in a court of competent jurisdiction on any of the following grounds:
      "a. that the unit is not the primary residence of such residential occupant, except that where a lease or rental agreement is in effect between the landlord and such residential occupant, the landlord may not seek to evict such occupant until such lease or rental agreement is no longer in effect.”

      , Sic. Probably should be paragraph 11.

      . Indeed, petitioner Close has not one but two other residences, one in midtown Manhattan and the other in East Hampton.