author: Alexander, J. Simons, J.

text:
    Elmwood-Utica Houses, Inc., Respondent-Appellant, v Buffalo Sewer Authority, Appellant-Respondent. Diocese of Buffalo, N. Y., Council of Churches, et al., Intervenors-Appellants-Respondents; County of Erie, Intervenor-Respondent.
    Argued May 28, 1985;
    decided July 11, 1985

      POINTS OF COUNSEL

      James J. McLoughlin, Acting Corporation Counsel (Michael B. Risman of counsel), for appellant-respondent.
    I. The sewer rent formula utilized by the Buffalo Sewer Authority is authorized by Public Authorities Law § 1180. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of New Rochelle Water Co. v Public Serv. Commn., 31 NY2d 397; Silkman v Board of Water Commrs., 152 NY 327.) II. The court below misconstrued the language of chapter 862 of the Laws of 1981. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.) III. Chapter 862 of the Laws of 1981 is constitutional. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Lighthouse Shores v Town of Islip, 41 NY2d 7; Town of North Hempstead v Exxon Corp., 53 NY2d 747; Capelle v Makowski, 62 AD2d 1167; Cook v City of Binghamton, 48 NY2d 323; Adelman v Adelman, 58 Misc 2d 803; People ex rel. Best & Co. v Graves, 265 NY 431; Rutland v Tuthill, 187 App Div 20; People ex rel. Beck v Graves, 280 NY 405; Matter of McGlone, 284 NY 527.) IV. The challenge to the sewer rents levied for the years 1975 through 1981 is barred by the Statute of Limitations. (Press v County of Monroe, 50 NY2d 695; Solnick v Whalen, 49 NY2d 224.)

      Kevin Kennedy and Charles S. Desmond for intervenors-appellants-respondents.
    I. The court below, without citing any relevant authority, has stated a rule of law which nullifies the exemptions provided for in the amendment to section 1180 and also nullifies the comprehensive scheme of exemptions from local assessments established by the Legislature. (Matter of Van Berkel v Power, 16 NY2d 37; Matter of Taylor v Sise, 33 NY2d 357.) II. The court below has misread Public Authorities Law § 1180 as amended in 1981. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Walz v Tax Commn., 397 US 664; Welch v Henry, 305 US 134; People ex rel. Beck v Graves, 280 NY 405; Adelman v Adelman, 58 Misc 2d 803; Lacoste v Department of Conservation, 263 US 545.) III. The court below misconstrues Watergate II Apts. v Buffalo Sewer Auth. (46 NY2d 52). IV. The Legislature empowered the authority to adopt sewer rents which were equitable, not equal. V. Chapter 862 of the Laws of 1981 does not violate the equal protection and due process provisions of the Federal and State Constitutions.

      Richard T. Sullivan for respondent-appellant.
    I. The rent computation applied by the Buffalo Sewer Authority prior to the amendment to section 1180 was not authorized by law. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of City of New York, 228 NY 140; Brink v Village of Elmira Hgts., 139 Misc 818; Matter of Village of Canastota v Queensboro Farms Prods., 44 AD2d 276, 36 NY2d 793.) II. The July 1981 amendment to Public Authorities Law § 1180 could not retroactively vest the Buffalo Sewer Authority with power to exempt certain properties from the ad valorem component of sewer rent computations. (Dunkum v Maceck Bldg. Corp., 256 NY 275; Olds v City of Jamestown, 280 NY 281; Lane v Johnson, 283 NY 244; Welch v Henry, 305 US 134; People ex rel. Beck v Graves, 280 NY 405; Matter of Lacidem Realty Corp. v Graves, 288 NY 354; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493.) III. The 1981 amendment to Public Authorities Law § 1180 is unconstitutional. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of Rokowsky v Finance Administrator, 41 NY2d 574; Matter of Slewett & Farber v Board of Assessors, 80 AD2d 186.) IV. Elmwood-Utica’s claims relative to sewer/rents for the years 1975 through 1981 are not barred by the Statute of Limitations. (Press v County of Monroe, 50 NY2d 695; Solnick v Whalen, 49 NY2d 224; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; La Porto v Village of Philmont, 39 NY2d 7; Bender v New York City Health & Hosps. Corp., 38 NY2d 662.) V. The revised computations of the BSA are equitable insofar as they include all properties previously exempted from the ad valorem computation.

      Eugene F. Pigott, Jr., County Attorney (Alan P. Gerstman of counsel), for intervenor-respondent.
    I. The sewer rent formula devised by the Buffalo Sewer Authority complies with Public Authorities Law § 1180. II. The ad valorem sewer rent of the Buffalo Sewer Authority is in the nature of a special assessment. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; People ex rel. Griffin v Mayor of Brooklyn, 4 NY 419; Provident Inst. v Mayor of Jersey City, 113 US 506; Silkman v Board of Water Commrs., 152 NY 327.) III. It is within the power of the State Legislature to enact a special assessment to be raised by the Buffalo Sewer Authority. (Robertson v Zimmermann, 268 NY 52; Hassan v City of Rochester, 67 NY 528.) IV. The Legislature has authority to exempt certain properties from special assessments. (Matter of Mayor of N. Y., 11 Johns 77; Hassan v City of Rochester, 67 NY 528.) V. The Legislature acted constitutionally in enacting chapter 862 of the Laws of 1981. (Matter of Trustees of Union Coll., 129 NY 308; Matter of Mayor of N. Y., 11 Johns 77; McGowan v Maryland, 366 US 420.)

      Charles J. Tobin, Jr., and Joseph P. McCale for the Council of Churches of New York State and others, amici curiae.

    I. The definition of equity adopted by the court below in this case undermines long-standing public policy of the State and the very essence of the relationship between the government and religious, charitable and educational organizations. (Walz v Tax Commn., 397 US 664; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371.) II. The court below has misconstrued this court’s decision in Watergate II Apts, with respect to what constitutes an equitable basis upon which to determine sewer rents. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.) III. The authority’s interpretation of section 1180, as amended, was proper. The authority’s exemption of the property of religious, charitable and educational organizations from a portion of the sewer rent is not unconstitutional. (Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Madden v Kentucky, 308 US 525; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529; Shapiro v City of New York, 32 NY2d 96; Genet v City of Brooklyn, 99 NY 296; Gautier v Ditmar, 204 NY 20; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454; Matter of Small v Moss, 279 NY 288; County Secs. v Seacord, 278 NY 34; Society of Plastics Indus. v City of New York, 68 Misc 2d 366.)
   OPINION OF THE COURT

Alexander, J.

The Appellate Division has determined that section 1180 of the Public Authorities Law, as amended by section 1 of chapter 862 of the Laws of 1981, and section 2 of said chapter are constitutional, but that the method employed by defendant, Buffalo Sewer Authority (BSA), to determine sewer rents is unauthorized by that statute. We agree that the statute, as amended, is constitutional, but disagree that the method used by BSA to determine sewer rents is unauthorized.

BSA was created pursuant to chapter 349 of the Laws of 1935. This legislative act authorized BSA to “establish a schedule of rates, rentals or charges, to be called ‘Sewer rents,’ to be collected from all real property served by its facilities.” The statute further provided that “[s]uch sewer rents may be based upon either the consumption of water on premises connected with such facilities, making due allowances for commercial use of water, the number and kind of plumbing fixtures connected with such facilities, or the number of persons served by such facilities, or may be determined by the authority on any other equitable basis.” Since 1938, BSA has employed a two-part formula for the computation of sewer rents. One component is based on the water consumption of the premises serviced, the number and kind of fixtures connected to the facilities and the number of persons served. The other is based upon the assessed value of the real property served — an ad valorem component. Historically, BSA has exempted from this ad valorem component real property in the City of Buffalo that is exempt from real estate taxation. This exemption has not been granted, however, to real property exempted from taxation pursuant to the Private Housing Finance Law and the Public Housing Law.

Plaintiff, Elmwood-Utica Houses, Inc., is organized under article 2 of the Private Housing Finance Law and is granted a limited exemption from real estates taxes pursuant to that law (Private Housing Finance Law § 33). Thus, it is not exempted by BSA from the ad valorem component of the sewer rent.

Since 1975, Elmwood-Utica has withheld payment of the ad valorem portion of its sewer rent, claiming that BSA had no statutory authority to exempt any users of its facilities from sewer rentals. Elmwood-Utica’s claim in this regard found support in an opinion of Buffalo’s Corporation Counsel, issued in 1975 and reaffirmed in 1979, which advised BSA that it could not legally “exempt any property served by its facilities from all or part of its sewer rents”.

In order to clarify its authority to assess sewer rents in the manner it had employed for some 40 years and to obtain explicit authorization for that method, BSA took steps in 1979 to have the Legislature amend section 1180 of the Public Authorities Law. This purpose was accomplished in the enactment of chapter 862 of the Laws of 1981.

Section 1 of the amendment created a specific statutory exemption from the ad valorem component of the sewer rent assessment for those properties that are exempt from real property taxation pursuant to enumerated sections of article 4 of the Real Property Tax Law. They comprise the same class of properties that BSA had historically exempted from the ad valorem component of its sewer rents, but which nevertheless remained subject to the user component of the sewer rent assessment. In addition to creating an express statutory exemption in section 1, the Legislature provided in section 2 of the 1981 enactment that: “All actions heretofore taken and proceedings had by the Buffalo sewer authority in granting exemption from ad valorem sewer rents granted properties exempt from real property taxes are hereby legalized, validated, ratified and confirmed.”

Following notification by BSA of its delinquency, Elmwood-Utica commenced this article 78 proceeding in which it contended that chapter 862 of the Laws of 1981 is unconstitutional and that BSA’s method of computing the sewer rent is unauthorized. Special Term converted the proceeding into a declaratory judgment action, denied BSA’s summary judgment motion and ordered that discovery proceed. On appeal to the Appellate Division, all of Elmwood-Utica’s claims were rejected except the claim that BSA lacked statutory authority to exempt any property from sewer rent assessments prior to July 31, 1981, and that its actions in so doing were ultra vires.

The Appellate Division upheld the constitutionality of chapter 862 of the Laws of 1981, but found that BSA’s method of assessing sewer rents was unauthorized by section 1180. The court viewed the 1981 amendment as not requiring the use of an ad valorem component in computing sewer rents, but merely providing that if such component were used it could not be assessed against certain specified properties. The court held that the amendment did not affect “the requirement that sewer rents ‘be collected from all real property’ on an ‘equitable basis’, [and t]hus defendant is left free, as it was prior to the amendment, to determine sewer rent charges against serviced properties on any basis which is fair and equitable to all users” (96 AD2d, at p 179). BSA’s contention that section 2 of chapter 862 of the Laws of 1981 validated its long-established practice of charging tax-exempt properties only that component based upon water consumption was rejected. The court held that such a construction would render section 2 unconstitutional as sanctioning disproportionate sewer rents. The court found it unnecessary to determine the applicability of the Statute of Limitations to either Elmwood-Utica’s challenge to the sewer rent assessments or to the amendment’s constitutionality, citing CPLR 203 (c) and Press v County of Monroe (50 NY2d 695). Pursuant to leave granted by this court, BSA and intervenors, the Diocese of Buffalo, N. Y., Council of Churches and the Buffalo City Cemetery, Inc., appeal, and Elmwood-Utica cross-appeals, pursuant to CPLR 5601 (d), from the judgment entered in favor of BSA on its counterclaim.

We hold that section 1180 of the Public Authorities Law, as interpreted and applied by BSA, is not unconstitutional and that BSA’s method of assessing the ad valorem component of its sewer rents is authorized by that statute. Legislative enactments carry an exceedingly strong presumption of constitutionality, and while this presumption is rebuttable, one undertaking that task carries a heavy burden of demonstrating unconstitutionality beyond a reasonable doubt (Maresca v Cuomo, 64 NY2d 242, 250; Lighthouse Shores v Town of Islip, 41 NY2d 7, 11). Elmwood-Utica has failed to carry this burden.

Where a statute is challenged as denying equal protection, and a “fundamental interest” or a “suspect” classification is not involved, the standard by which the classification is measured to determine whether or not it will pass constitutional muster is the “reasonable basis” test. Where 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” ’ ” (Alevy v Downstate Med. Center, 39 NY2d 326, 332, quoting Dandridge v Williams, 397 US 471, 485). No argument is made, nor could any validly be made, that a “fundamental interest” or “suspect” classification is involved in BSA’s fixing of sewer rents. Consequently, Public Authorities Law § 1180, as amended, and BSA’s interpretation of the statute in classifying properties that are subject to or exempt from the ad valorem sewer levy are to be tested by “a rational basis standard of review * * * [and i]f any conceivable state of facts will support the classification, said provisions will not be held violative of the equal protection clause” (Maresca v Cuomo, 64 NY2d 242, 250, supra).

In Watergate II Apts. v Buffalo Sewer Auth. (46 NY2d 52), we acknowledged that “the Public Authorities Law allows [BSA] to fix charges only for such services as it actually provides its customers” (id., at p 59), and that the charges were in the nature of fees that “had to bear a direct relationship to the cost of furnishing the water services.” We recognized, however, that in fixing those charges there is the possibility that formulae more sophisticated than those criteria expressly enumerated in Public Authorities Law § 1180 might be adopted by BSA pursuant to the “equitable basis” provision of the statute. We noted that the essential services supplied to the people of Buffalo by BSA were far more extensive and complex than merely providing water for current and predictable use. The services involved, among other things, the construction and maintenance of effluent and storm sewer lines, sewage collection and treatment facilities. We concluded that the “cost of these activities is bound to bear only limited direct relationship to the volume of water utilized by [a] particular consumer” (id., at p 60). In providing these extensive services, BSA was providing a governmental service (Public Authorities Law § 1191). Thus, it was providing a public benefit to the entire community, as well as an exclusive benefit to the individual properties.

In approving BSA’s use of the assessed valuation of real property in Buffalo as a basis for assessment of a portion of the sewer rent to help defray the cost of providing the public benefit, despite that it was not specifically authorized by the statute, we recognized that “[e]xact congruence between the cost of the services provided and the rates charged to particular customers is not required” (id., at p 59), and therefore that the statute’s “equitable basis” provision did not necessarily mean “equal basis”. Rather, we held that the inquiry should be “whether [BSA’s] formulae reflect reasonable and nonarbitrary interpretations of the statute”, noting that “discrepancies may have to be endured * * * so long as there exists some rational underpinning for the charges levied” (id.).

Here the Legislature has conferred virtually unfettered power upon BSA to establish sewer rents, using the specific criteria enumerated in section 1180 and the general “other equitable basis” standards. In these circumstances, it is clear that the Legislature intended that BSA would fix sewer rents that, in its judgment, would best serve its economic and public policy goals, “including economic differentiations among its charges so long as there is not involved any of the invidious discriminations condemned by statute or Constitution, or some utterly arbitrary discrimination not related to economic considerations or some accepted public goal” (Carey Transp. v Triborough Bridge & Tunnel Auth., 38 NY2d 545, 550, remittitur amended 39 NY2d 806, cert denied 429 US 830). Rather than perceiving BSA’s long-standing policy of exempting the enumerated tax-exempt organizations from the ad valorem component of the sewer rents as an abuse of this discretion, the Legislature has specifically approved of the classification by including it in the amended statute.

We conclude that the classification employed here easily meets the rational basis test since entities that are tax exempt, such as governments and charitable and religious organizations, may properly be considered less able to pay for a sewer system, especially insofar as the system redounds to the common benefit of all property rather than to one specific parcel. This principle has been recognized often in the context of taxation and, although sewer rents are not taxes (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, supra), the same concerns are pertinent here. In addition, while all property values are enhanced by a sewer system, holders of tax-exempt properties may be in a different classification because generally they do not share the objective of commercial and residential property owners — the enjoyment of their property’s market appreciation and the realization of profit thereon upon resale.

For much the same reasons, we conclude that, as a matter of statutory interpretation, BSA’s long practice of exempting tax-exempt properties from the ad valorem component is a fair and rational application of the “equitable basis” test provided in section 1180. While classifications fixing different rates must relate to the benefits received (see, 11 McQuillin, Municipal Corporations § 31.30a, at 222 [3d rev ed]), here it cannot be said that governmental, charitable and religious institutions obtain the same value, in terms of over-all market appreciation, from the entire sewer system as commercial and residential property owners. Nor is it irrational to exempt them from those charges designed, to defray the costs of the public benefit services supplied by BSA’s system.

Having concluded that BSA properly applied Public Authorities Law § 1180, we need not reach the issues regarding validity of the 1981 amendments, which simply, and explicitly, carry forward BSA’s prior interpretation.

Accordingly, the judgment appealed from, and the order of the Appellate Division brought up for review, should be modified, with costs to defendant and interveners, to the extent of declaring BSA’s method of calculating sewer rents valid, granting BSA’s motion for summary judgment on its counterclaim, and remitting the matter to Supreme Court for a determination of the amount of the sewer rent deficiencies of Elmwood-Utica for the period July 1,1975 to June 30,1982, together with appropriate interest, and as so modified, affirmed.

Simons, J.

(dissenting). I would affirm the order of the Appellate Division.

The critical fact in this action is that it involves fees, not taxes. The difference is that fees, such as those charged defendant’s customers, are charges for benefits and are related to the value of the benefits received. Taxes, on the other hand, are assessed against all real properties located within the area of the taxing authority and are charges made to support government generally without relation to specific benefits received (see, Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Jewish Reconstructionist Synogogue v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 163-164; Silkman v Board of Water Commrs., 152 NY 327; Matter of Hanson v Griffiths, 204 Misc 736, affd 283 App Div 662; Carmichael v Southern Coal Co., 301 US 495). Although defendant may vary the fees charged for its water and sewer services depending on the user, e.g., commercial or residential, the statute requires that such charges be equitable and that requires that they be equitable in relation to the benefits to the user. Defendant may not adopt classifications fixing different rates unrelated to the benefits received (see, Watergate II Apts. v Buffalo Sewer Auth., supra; Jewish Reconstructionist Synogogue v Incorporated Vil. of Roslyn Harbor, supra; 11 McQuillin, Municipal Corporations § 31.30a, at 222 [3d rev ed]). To the extent that the rates vary from this standard they are discriminatory and constitute a tax to support the sewer system generally (see, Watergate II Apts. v Buffalo Sewer Auth., supra, at p 59; State ex rel. Waterbury Dev. Co. v Witten, 54 Ohio St 2d 412, 377 NE2d 505; Boynton v City of Lakeport Mun. Sewer Dist., 28 Cal App 3d 91, 94-95, 104 Cal Rptr 409, 410-412; Town of Taylorsville v Modern Cleaners, 34 NC App 146, 237 SE2d 484). As we noted when we passed on the constitutionality of the original section 1180 of the Public Authorities Law, the Legislature granted defendant the authority to charge fees to users “only on a basis of service rendered” (Robertson v Zimmermann, 268 NY 52, 64). Neither the original statute nor the statute as amended in 1981 grant defendant the power to tax.

Notwithstanding all of this, defendant has chosen to charge one fee to plaintiff for service to its apartment houses and a substantially lesser fee for service to tax-exempt properties such as hospitals, public office buildings or similar structures whose use of the facilities would appear comparable, solely because they are tax exempt. As a result, the fees assessed against similarly situated property owners are patently inequitable resulting in effect in an unlawful tax upon the nonexempt property owners ultra vires defendant’s statutory powers.

The fee charged by defendant is made up of two components; a charge paid on water use and an ad valorem charge based on assessed value. The chosen method of effecting the unequal treatment of defendant’s customers was to exempt some properties from paying one component of the fee charged as rent, the ad valorem levy, in effect, imposing an inequitable surtax for the extra cost on the remaining users of the system. That is precisely what we said defendant could not do when we rejected a challenge to these sewer fees in Watergate II Apts. v Buffalo Sewer Auth. (46 NY2d 52, supra).

In Watergate plaintiff claimed that the charge was a tax because it included not only a traditional user component but also an ad valorem component based on the assessed value of the property. In sustaining the validity of defendant’s fees, and specifically the ad valorem portion of them, we observed that fees may be established after considering a variety of factors, including in defendant’s case assessed values, but that fees collected by defendant must be “in the nature of fees which * * * bear a direct relationship to the cost of furnishing the water services” (Watergate II Apts. v Buffalo Sewer Auth., supra, at p 58). Because the ad valorem portion of the rents was a rough approximation of the cost of furnishing essential services such as effluent and storm sewer lines, sewage collection and treatment facilities, removal of industrial wastes, ensuring adequate firefighting networks and reserves for future development that would not be adequately reflected in water use, we found it was a reasonable part of an over-all sewer rent formula. The charge was equitably related to the benefit received, we held, and thus was a fee, not a tax, notwithstanding the use of ad valorem levies usually associated with taxes as a measure of computing the fee. The majority now turns on its head the reasoning of that decision and well-established rules concerning the distinction between fees and taxes. It sanctions defendant’s exemption of certain users from the ad valorem component by claiming that the ad valorem component relates to a public benefit although we held in Watergate II that it was permissible because it reflected a benefit to the user.

The majority concludes further that the practice is permissible because the properties are exempt from taxation. Taxation, or the exemption from taxation, has nothing to do with the matter, however. Properties may be exempt from taxes because the Legislature decides, for policy reasons, that the owners need not share fully in the costs of government generally but a discriminatory fee may not be charged for a specific service rendered property owners (see, 1 Priest, Principles of Public Utility Regulation, at 290; State ex rel. Waterbury Dev. Co. v Witten, 54 Ohio St 2d 412, 377 NE2d 505, supra; Boynton v City of Lakeport Mun. Sewer Dist., 28 Cal App 3d 91, 94-95, 104 Cal Rptr 409, 410-412, supra; Town of Taylorsville v Modern Cleaners, 34 NC App 146, 237 SE2d 484, supra). We expressly recognized that point in Watergate II when we stated that because defendant’s sewer rents are fees rather than taxes, “there is no less reason to apply the charges to * * * [tax] exempt * * * property than to that which [is] nonexempt” because the tax classification bears absolutely no relationship whatever to the “reality of the services and benefits actually rendered to property owners” by defendant (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 61, supra).

The consequence of these exemptions is that plaintiff’s charges for sewer service are 40% higher than what they would be if all property owners paid rents solely on the basis of services rendered as required under the rule of Watergate. This excess amounts to a tax on plaintiff’s property because it bears no relationship to the benefits and services plaintiff receives but is a general imposition to make up for those properties exempt from the ad valorem portion of the rents. Exempt properties receive benefits from sewer lines and sewage collection and treatment the same as other properties do. To say that the rates are equitable and that there is a rational basis for such distinctions because the market value of the exempt properties is not appreciably increased by the existence of sewer lines and services blinks reality. Although such properties are generally not held for investment purposes, a publicly owned hospital or office building is just as dependent for value upon the existence of an adequate sewage system, for example, as is plaintiff’s apartment building. Neither would exist or at least enjoy its present utility without it. Because the ad valorem component of the rent is specially tailored to reflect this need and value for the sewage connection (see, Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 60, supra), its expense should equitably be charged to the exempt properties.

Nor do I find persuasive Carey Transp. v Triborough Bridge & Tunnel Auth. (38 NY2d 545, remittitur amended 39 NY2d 806, cert denied 429 US 830). The statute involved in Carey granted the authority unconstrained power to set fees.

I accept the majority’s proposition that the statutory requirement that the rates be equitable does not mean that they must be equal. They must be fair though, and there is nothing fair about sewer rates which impose a surcharge of 40% above value received upon nonexempt owners to compensate for revenue losses resulting from services supplied to others paying substantially less than fair consideration for them.

The practice authorized results in the imposition of a tax, contrary to the authority of the statute and our decision in Watergate. I, therefore, dissent.

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

Judgment appealed from and order of the Appellate Division brought up for review modified, with costs to defendant and intervenors, and case remitted to Supreme Court, Erie County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . It appears that Elmwood-Utica was organized some time prior to the 1977 amendments to section 33 of the Private Housing Finance Law and thus was exempted from local and municipal taxes for a limited period of time and to a maximum of 50% of the value of its real property.

      . Section 1180, as amended, provides in part: “[T]he authority is authorized to establish a schedule of rates, rentals or charges, to be called ‘sewer rents,’ to be collected from all real property served by its facilities, except that no ad valorem sewer rent shall be assessed against real property exempt from real property taxes pursuant to subdivision one of section four hundred, sections four hundred four, four hundred six, four hundred twelve, four hundred eighteen, subdivision one of section four hundred twenty, sections four hundred forty-six, four hundred fifty-two, four hundred sixty-two and four hundred seventy-seven of the real property tax law” (amended language in italics).


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Michael Miller, Appellant.
    Argued May 29, 1985;
    decided July 11, 1985

      POINTS OF COUNSEL

      Peter Branti, Jr., Public Defender (Clare McCue and William K. Nelson of counsel), for appellant.
    I. The court’s failure to extend the Wade hearing to determine the propriety of a photographic identification of appellant was erroneous. (People v Ercole, 4 NY2d 617; People v Childers, 54 Misc 2d 752; People v Coffey, 11 NY2d 142; People v Loria, 10 NY2d 368; People v Porter, 37 Misc 2d 73; People v Pariser, 50 Misc 2d 727; People v Coleman, 42 NY2d 500.) II. The in-court identification of appellant was tainted by identification procedures that were so unnecessarily suggestive and conducive to a mistaken identification as to constitute a deprivation of due process. (People v Rahming, 26 NY2d 411; People v Ballott, 20 NY2d 600; United States v Wade, 388 US 218; Stovall v Denno, 388 US 293;
      Simmons v United States, 390 US 377; People v Gonzalez, 27 NY2d 53; United States ex rel. Phipps v Follette, 428 US 912; People v Tindal, 69 AD2d 58; People v Hall, 81 AD2d 644.) III. Appellant’s identity as the assailant was not proven beyond a reasonable doubt. IV. Appellant was denied due process of law when the court imposed a sentence that was more severe than the one imposed on his original conviction for the same offense. (People v Miller, 76 AD2d 576, 54 NY2d 616; North Carolina v Pearce, 395 US 711; People v Simone, 78 AD2d 685; People v Cwikla, 60 AD2d 40, 46 NY2d 434; United States v Hawthorne, 532 F2d 318; Blackledge v Perry, 417 US 21; Chaffin v Stynchcombe, 412 US 17; People v Yannicelli, 47 AD2d 911, 40 NY2d 598; United States v Floyd, 519 F2d 1031.) V. The court’s imposition of a greater sentence for the reason that the complainant was compelled to testify at trial violated appellant’s 6th Amendment right to confrontation. (Pointer v Texas, 380 US 400; Smith v Illinois, 390 US 129; California v Green, 399 US 149; Bruton v United States, 391 US 123; People v Nisonoff, 293 NY 597, 294 NY 696, 326 US 745; People v Lombardi, 39 AD2d 700, 33 NY2d 658.) VI. As the evidence presented at trial was insufficient to establish appellant’s guilt of the crime charged, the indictment must be dismissed. (Matter of Miranda v Isseks, 41 AD2d 176; Vailes v County Ct., 57 AD2d 589; People v Rao, 73 AD2d 88.) VII. The photographic identification evidence was incompetent and inadmissible for Grand Jury purposes and, therefore, legally insufficient to support the indictment. (People v Cioffi, 1 NY2d 70; People v Hagedorny, 272 App Div 830; People v Jung Hing, 212 NY 393; People v De Martini, 213 NY 203; People v Caserto, 19 NY2d 18; People v Lindsay, 42 NY2d 9; People v Griffin, 29 NY2d 91; People v Baker, 23 NY2d 307; People v Brewster, 100 AD2d 134; People v Coffey, 11 NY2d 142.)

      Kenneth Gribetz, District Attorney (John S. Edwards of counsel), for respondent.
    I. The court’s decision not to relitigate those suppression issues decided at an earlier Wade hearing was not erroneous. (People v Perez, 104 AD2d 454; People v Ball, 99 AD2d 785; People v Rodriguez, 64 NY2d 738; People v Adams, 53 NY2d 241; People v Miller, 101 AD2d 1016; Manson v Brathwaite, 432 US 98; United States v Wade, 388 US 218; People v Rice, 35 NY2d 656.) II. The identification procedures employed were not so unnecessarily suggestive or conducive to mistaken identification as to taint the subsequent in-court identification. (United States v Peterson, 524 F2d 167, cert denied sub nom. Smith v United States, 424 US 925; United States v Eatherton, 519 F2d 603, 423 US 987; United States v Bowie, 515 F2d 3;
      Fillippini v Ristaino, 585 F2d 1163; United States v Sheehan, 583 F2d 30; People v Di Pillo, 31 AD2d 632; People v Johnson, 32 NY2d 814.) III. Appellant’s identity was proven beyond a reasonable doubt, and the court, therefore, may not pass upon the sufficiency of the evidence adduced before the Grand Jury. (People v Contes, 60 NY2d 620; People v Murray, 97 AD2d 774; People v Waiters, 97 AD2d 356; People v Benzinger, 36 NY2d 29; People v Cohen, 223 NY 406; People v Stroman, 83 AD2d 370.) IV. There was no violation of appellant’s constitutional rights by reason of the court’s imposition of a greater sentence following trial than had been imposed upon his earlier plea of guilty. (North Carolina v Pearce, 395 US 711; Colten v Kentucky, 407 US 104; Moon v Maryland, 398 US 319; Blackledge v Perry, 417 US 21; Bordenkircher v Hayes, 434 US 357; United States v Goodwin, 457 US 368; Corbitt v New Jersey, 439 US 212; People v Pena, 50 NY2d 400.) V. The photographic evidence used to establish appellant’s identity before the Grand Jury was not inadmissible. In any event, the legal sufficiency of the evidence presented to the Grand Jury is not reviewable on appeal. (People v Hallett, 71 AD2d 815; People v Brewster, 63 NY2d 419; People v Ball, 89 AD2d 353.)
   OPINION OF THE COURT

Meyer, J.

That a heavier sentence is imposed following trial than was imposed following defendant’s earlier conviction, thereafter reversed, of first degree rape based on his guilty plea, involves no violation of defendant’s right to due process or to confront the witnesses against him, it having been stated during both sentencing proceedings that the lesser sentence following the guilty plea was imposed to spare the victim the necessity of recounting the experience at a public trial. Nor did the reversal of the guilty plea conviction entitle defendant to relitigate the issue of suggestiveness decided against him prior to that conviction, and the hearing judge’s finding of independent source, affirmed by the Appellate Division, was based upon sufficient evidence. The order of the Appellate Division should, therefore, be affirmed.

I

As the rape victim, a 21-year-old nursing student, turned into her driveway at 12:15 a.m., her car was hit in the rear by a vehicle driven by defendant. During the exchange of information that ensued, defendant abducted the victim at knifepoint and drove off with her in the car. For the next four hours defendant and his victim were together as he drove around at high speeds, ultimately found a seldom used road and, with the knife at her neck and head, forced her to remove her clothing and submit to intercourse with him, followed by further driving around until defendant finally left the vehicle.

About a month thereafter the District Attorney sought, but was denied, an order requiring defendant to appear in a lineup, in connection with which defendant was represented by the Public Defender. Indictment, about a year later, was followed by a combined Huntley-Wade hearing at which defendant argued that his statement to the police, having been made in the absence of counsel, should be suppressed and that the victim should not be permitted to make an in-court identification because the showing to her on five separate occasions of a photo array tainted the identification process.

The hearing judge refused to suppress defendant’s statement and ruled that the array was not suggestive and that the victim, having been with defendant for over four hours, clearly had an independent source and, therefore, would be permitted to make an in-court identification. Defendant then pleaded guilty to rape in the first degree, which carries a maximum sentence of 8V3 to 25 years. As part of the plea negotiations, sentence to an indeterminate term of 4 to 12 years was recommended by the prosecutor and agreed to, subject to the probation report, by the judge, both of whom indicated that the 4 to 12 year sentence was agreed to rather than require the victim to “recount the horror [she] went through.”

On appeal, the Appellate Division reversed and vacated the plea for failure to suppress the statement made by defendant in the absence of the Public Defender (76 AD2d 576), but held defendant’s identification contentions to be without merit (id., at p 586), and on appeal to this court we affirmed (54 NY2d 616). After a lineup was held the victim, whose responses to the prior photo array showings had been that the photograph of defendant looked like her assailant but that she could not be sure until she saw him, identified defendant positively. Defendant’s attorney then moved to suppress the lineup identification and prohibit in-court identification, once again advancing the argument that the repeated showing of the photo array to the victim tainted the lineup identification as well. The hearing judge limited the hearing to whether the lineup was suggestive and refused to consider the taint issues considered by the first hearing judge. He ruled that both lineup and in-court identifications were permissible.

Convicted after a jury trial of rape in the first degree, defendant was sentenced to an indeterminate term of 7 to 21 years. In imposing sentence the Trial Judge, a different judge than had imposed the earlier sentence after the plea, noted that the prior 4 to 12 year sentence had been agreed to “only because the [victim] would not have to testify at” a public trial and that the consideration failed when defendant, after his successful appeal, went to trial, compelling the victim to testify. On appeal to the Appellate Division, that court, one Justice dissenting, held that the imposition after trial of a heavier sentence involved no due process violation and that the other issues raised by defendant, so far as preserved, lacked merit.

The matter is before us by leave of a Judge of this court. Of the issues raised by defendant, only those relating to the sentence imposed, the second Wade hearing and the in-court identification warrant discussion, and on those issues we conclude that under the circumstances of this case the heavier sentence imposed after trial was constitutionally permissible, limitation of the scope of the second Wade hearing was proper and in-court identification by the victim was properly allowed.

II

Defendant’s arguments respecting sentence are predicated upon the due process clauses of the 14th Amendment to the United States Constitution and the State Constitution, article I, § 6 and the right to be confronted with the witnesses against him contained in the latter section of the State Constitution, in Civil Rights Law § 12 and in the 6th Amendment to the United States Constitution.

A

The due process argument is predicated largely on North Carolina v Pearce (395 US 711), which held that vindictiveness could play no part in resentencing, and particularly upon so much of it as required that a judge imposing a more severe sentence upon a defendant after a new trial, affirmatively state a reason for doing so “based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” (395 US, at p 726). In a series of cases decided after Pearce, the Supreme Court has sought to separate the situations which will give rise to a presumption of vindictiveness that must be rebutted by the prosecutor or sentencing authority from those which do not and, therefore, require the defendant affirmatively to establish actual vindictiveness. It has also sought to define the factors that a judge or other sentencing authority may consider, without violating the defendant’s constitutional rights, as justifying imposition of an increased sentence following retrial.

What triggers the presumption is the opportunity which the particular situation presents for vindictiveness and the reasonable likelihood that the prosecutor or sentencing authority is improperly motivated by what has occurred (United States v Goodwin, 457 US 368,375,381; Blackledge v Perry, 417 US 21, 27). Thus, a presumption is not warranted when the prosecutor increases the charge after routine pretrial motions have been made because it is unrealistic to assume that a prosecutor will seek to deter such motions by increasing the charge (United States v Goodwin, supra). But when a greater sentence is imposed following retrial after appeal than was imposed after the original trial, the opportunity to retaliate for the successful appeal and to deter others from similar appeals is present and the likelihood that retaliation or deterrence or both constitute the motivation for the additional time required to be served is sufficient to engage the presumption (Wasman v United States, 468 US_, 104 S Ct 3217, 3223; North Carolina v Pearce, supra; Blackledge v Perry, supra). Thus, the presumption applies in the present case.

It is, however, no more than a presumption and may be overcome by evidence that the higher sentence rests upon a legitimate and reasoned basis. The difficulty in evaluating the present case is that the Supreme Court cases involving an initial sentence after plea are distinguishable and the factor upon which the greater sentence is based results from, but is not itself, conduct of the defendant occurring after the original sentence.

Wasman v United States (supra), has, however, substantially clarified the meaning of the Pearce decision language upon which defendant lays so much stress. Although in Wasman, five Justices disagreed with the omission from the Chief Justice’s opinion for the court of reference to the necessity for protecting a defendant against reasonable apprehension of vindictiveness, all of the Justices agreed that the event there involved (conviction between initial trial and sentencing after retrial of an offense committed prior to initial trial) was an event that could properly be considered by the Trial Judge as a ground for enhancing sentence, and all but Justice Stevens concurred in that part of the Chief Justice’s opinion which stated that, “There is no logical support for a distinction between ‘events’ and ‘conduct’ of the defendant occurring after the initial sentencing insofar as the kind of information that may be relied upon to show a nonvindictive motive is concerned.” (468 US, at p_, 104 S Ct, at p 3225.)

The present case involves a similar event, resulting from conduct of the defendant, though not itself such conduct, occurring after the original sentencing — defendant’s election, after his successful appeal, of a jury trial which imposed upon the victim the trauma of publicly reliving the events of the attack. The Supreme Court has recognized in Chaffin v Stynchcombe (412 US 17), “that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process” (412 US, at p 25). Having accepted the exercise of discretion to lower the original sentence in return for a plea in order to protect the victim, the defendant should not be heard to complain that a higher sentence is imposed after conviction following a retrial at which, by requiring that the victim testify, he has removed from consideration the element of discretion involved (see, Morris v Slappy, 461 US 1, 14). In that sense he is “responsible for the conditions which brought about * * * a more severe sentence” (People v Williams, 34 NY2d 657, 658) for, as the judge who sentenced defendant after his jury trial put it, “the consideration for the bargain you received * * * failed when after a successful appeal you went to trial and [the victim was] compelled to testify.” To be borne in mind also is the fact that a different judge presided over the trial and sentencing after trial than took the original plea and imposed sentence on the basis of it, for under those circumstances there is less likelihood of self-vindication or recrimination (State v Sisneros, 101 NM 679, 687 P2d 736; see, Chaffin v Stynchcombe, supra; Colten v Kentucky, 407 US 104), and the chance of improper motivation is, accordingly, reduced.

Finally, as to the due process question, we note that though the issue we consider has not been passed upon by the Supreme Court, the result we reach accords with the weight of Federal and State cases that have considered the question (United States v Cunningham, 529 F2d 884; Thompson v State, 154 Ga App 704, 269 SE2d 474; Sweetwine v State, 288 Md 199, 421 A2d 60; State v Sisneros, 101 NM 679, 687 P2d 736, supra; State v Stubbendick, 110 Wis 2d 693, 329 NW2d 399; see, United States v Lippert, 740 F2d 457; United States v Derrick, 519 F2d 1; United States ex rel. Williams v McMann, 436 F2d 103, cert denied 402 US 914; State v Frank, 344 So 2d 1039 [La]; cf. United States v Whitley, 759 F2d 327; United States v Gilliss, 645 F2d 1269; United States v Floyd, 519 F2d 1031).

B

But, says defendant, so to conclude is inconsistent with the right to confront witnesses against him accorded him by Constitution and statute. The victim did in fact testify, so there has been no actual violation of defendant’s confrontation rights. His argument is, rather, that his right to confrontation is chilled by the apprehension that if, by going to trial after his successful appeal, he required the victim to testify a greater sentence may be imposed. A similar chilling effect argument can also be made with respect to the right, accorded by CPL 710.70 (2), to appeal denial of a motion to suppress after entry of a guilty plea. Five of the nine Justices having concurred in the Wasman disposition in opinions indicating that not only vindictiveness but reasonable apprehension of vindictiveness (i.e., chilling effect) remains a part of the equation, the argument cannot be lightly passed off.

We conclude, however, that there is no constitutional or statutory violation. The Supreme Court has recognized that it is not an unconstitutional burden upon the 6th Amendment right to a jury trial to provide that a defendant found guilty of felony murder after trial must be sentenced to life imprisonment, while a defendant pleading non vult or nolo contendere could be sentenced to either life imprisonment or a lesser sentence, in the discretion of the sentencing judge (Corbitt v New Jersey, 439 US 212). There the court held that “not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid” {id., at p 218). The acceptance of plea negotiation as a legitimate process, in the course of which a defendant may be discouraged from asserting trial rights and forced to choose between the certainty of leniency in return for a plea or a heavier penalty if those trial rights are asserted, involves no constitutional violation (United States v Goodwin, 457 US, at p 378, supra; Corbitt v New Jersey, 439 US, at pp 220-223, supra; Bordenkircher v Hayes, 434 US 357, 363-364; Chaffin v Stynchcombe, 412 US, at pp 31-32, supra). Defendant was made aware as part of the plea bargaining process that the leniency being accorded him involved foregoing both the right to trial and to confrontation of the victim. The possibility of a heavier sentence after trial following his successful appeal did not impermissibly burden his confrontation rights.

Ill

The contention that it was error not to consider at the suppression hearing held after reversal of the original conviction based on defendant’s plea issues litigated and decided during the first preplea suppression hearing and not reversed on appeal is based upon so much of CPL 710.60 (4) as calls for a hearing on a suppression motion, on that part of CPL 470.55 (2) which provides that, “Upon an appellate court order which reverses a judgment based upon a plea of guilty * * * the criminal action is, in the absence of express appellate court direction to the contrary, restored to its pre-pleading status”, and on cases construing Code of Criminal Procedure § 544, which provided that, “When a new trial is ordered, it shall proceed in all respects as if no trial had been had.”

There is no merit to the contention. CPL 710.60 (4) does not mandate reconsideration at the required hearing of issues the disposition of which was affirmed on the prior appeal (People v Rice, 35 NY2d 656, 657; People v Ball, 99 AD2d 785; People v Buthy, 38 AD2d 10, 13; cf. People v Blake, 35 NY2d 331, 334), and although CPL 710.40 (4) vests the trial court with discretion to reopen such a hearing on grounds previously unavailable to defendant (People v Cohen, 58 NY2d 844, affg 87 AD2d 77, 79; People v Fuentes, 53 NY2d 892), denial of such a motion under the circumstances of this case involves no abuse of discretion (People v Fuentes, supra).

CPL 470.55 (2) and Code of Criminal Procedure § 544, its predecessor provision, are of no greater help to defendant’s cause. The words “pre-pleading status” in the present provision can only be read to refer to the status of the case prior to the “plea of guilty” mentioned earlier in the same sentence and, as for the cases construing the predecessor section, examination of them discloses that although they permitted motions to be made on remand after appeal, none involved relitigation of an issue litigated and decided prior to reversal.

IV

The claim that in-court identification should not have been allowed because impermissibly tainted by the victim’s repeated viewings of the photo array was decided against defendant at the first suppression hearing and that determination was affirmed by the Appellate Division. Though not argued before us on the prior appeal, which was taken by the People, it is clear from the record that there was evidence to support the finding of independent source. Not only did the victim testify that she was able to get a good look at defendant’s face at various times during the four hours they were together, but also she testified that during the sexual assault his face was but a few inches from hers. The issue is, therefore, beyond our review.

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

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

Order affirmed.

      . Colten v Kentucky (407 US 104); Chaffin v Stynchcombe (412 US 17); Blackledge v Perry (417 US 21); Bordenkircher v Hayes (434 US 357); United States v Goodwin (457 US 368); Wasman v United States (468 US —, 104 S Ct 3217).

      . Simpson v Rice, considered together with North Carolina v Pearce (395 US 711), involved initial sentences after plea aggregating 10 years, set aside on coram nobis, followed by conviction after trial and imposition of sentences totaling 25 years, but the State offered no evidence whatsoever to justify the increase. Bordenkircher v Hayes (434 US 357) though it dealt at length with plea negotiations, and has important bearing on the result in this case, as hereafter discussed, dealt not with the judge’s imposition of a higher sentence but with the prosecutor’s increase of the charges against defendant, which increased the punishment potential.

      . Accord, Sweetwine v State (42 Md App 1, 13, 398 A2d 1262, 1269, affd 288 Md 199, 421 A2d 60, cert denied 449 US 1017): “In a nutshell, the Appellant, with his initial guilty plea, ‘bought’ leniency and then stopped payment on the check. His insistence that he be treated as if he had not stopped payment reeks of disingenuousness. Fundamental due process of law was not offended by [the enhanced] sentencing in this case.”

      . People v Coffey (11 NY2d 142); People v Loria (10 NY2d 368); People v Ercole (4 NY2d 617); People v Childers (54 Misc 2d 752); People v Pariser (50 Misc 2d 727); People v Porter (37 Misc 2d 73).


author: Alexander, J. Simons, J. Chief Judge Wachtler

text:
    Charles T. Zimmer, Jr., Appellant, v Chemung County Performing Arts, Inc., Respondent, and Elcon Contractors, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents. Mac-Dan Erectors, Inc., Third-Party Defendant-Respondent. John Hunt, Respondent, v Werner Spitz Construction Company, Inc., Defendant-Appellant and Third-Party Plaintiff-Appellant, et al., Defendant and Third-Party Plaintiff. Railing Supply Company, Inc., Third-Party Defendant-Appellant.
    Argued March 20, 1985;
    decided July 11, 1985

      POINTS OF COUNSEL

      Russell T. Quinlan, Paul William Beltz and C. A. Krenzer for appellant in the first above-entitled action.
    I. There was a violation of Labor Law § 240 (1) which was a proximate cause of plaintiff’s injuries, and plaintiff should have been allowed a directed verdict, and there should be a reversal as a matter of law. II. The majority opinion of the court below was incorrect. (Haimes v New York Tel. Co., 46 NY2d 132; Sarnoff v Charles Schad, Inc., 22 NY2d 180; Long v Murnane Assoc., 68 AD2d 166, 48 NY2d 776; Rea v Elia Bldg. Co., 79 AD2d 1102.) III. Section 240 applies in this case. (Smith v Hooker Chems. & Plastics Corp., 83 AD2d 199; Cardile v D’Ambrosia, 72 AD2d 544; Pereira v Herman Constr. Co., 74 AD2d 531; Haimes v New York Tel. Co., 46 NY2d 132; Brant v Republic Steel Corp., 91 AD2d 841; Rocha v State of New York, 77 Misc 2d 290.) IV. The failure of the court to charge the jury on the New York Code of Rules and Regulations issued by the Board of Standards and Appeals as they relate to the New York Labor Law was reversible error and accordingly the verdict should be set aside and a new trial ordered. (Larabee v Triangle Steel, 86 AD2d 289.) V. The trial court erred when it told the jury the New York State Labor Law was a general statute. (Larabee v Triangle Steel, 86 AD2d 289; Haimes v New York Tel. Co., 46 NY2d 132.)

      Kevin M. O’Shea for respondent in the first above-entitled action.
    I. The record at bar amply supports the jury verdict and the courts below properly refused to set it aside. (Koenig v Patrick Constr. Corp., 298 NY 313; Ryan v Cenci, 95 AD2d 963; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 58 NY2d 824; Haimes v New York Tel. Co., 46 NY2d 132; Allen v Cloutier Constr. Corp., 44 NY2d 290; Kluttz v Citron, 2 NY2d 379; Ryan v Morse Diesel, 98 AD2d 615; Larsen v Herald, 96 AD2d 1137; Cardile v D’Ambrosia, 72 AD2d 544; Sarnoff v Charles Schad, Inc., 22 NY2d 180.) II. The trial court correctly excluded consideration of both contributory fault and the administrative regulations when plaintiff withdrew his allegations under Labor Law §§ 200 and 241 (6). (Long v Forest-Fehlhaber, 55 NY2d 154; Martin v Herzog, 228 NY 164; Bland v Manocherian, 93 AD2d 689.) III. The charge to the jury was fair and accurate. (Paul v Kagan, 92 AD2d 988; Barry v Manglass, 55 NY2d 803; Krall v Shaker Ridge Country Club, 51 AD2d 481; Martin v Herzog, 228 NY 164.)

      Samuel M. Hall for Eicon Contractors, Inc., defendant and third-party plaintiff-respondent in the first above-entitled action.
    I. The court below was correct in upholding the decision of the trial court that, on the basis of the factual evidence presented at trial, Labor Law § 240 (1) and § 241 (4) were not applicable. (Duda v Rouse Constr. Co., 32 NY2d 405; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 58 NY2d 824; Phillips v Flintkote Co., 89 AD2d 724; Ryan v Cenci, 95 AD2d 963; Kahn v Gates Constr. Corp., 103 AD2d 438; Rea v Elia Bldg. Co., 79 AD2d 1102; Brant v Republic Steel Corp., 91 AD2d 841; Long v Murnane Assoc., 68 AD2d 166; Pereira v Herman Constr. Co., 74 AD2d 531; Glielmi v Toys “R” Us, 94 AD2d 663, 62 NY2d 664.) II. The court below was correct when it found no error in the trial court’s failure to instruct the jury on the applicable rules and regulations issued by the Board of Standards and Appeals because section 240 (1) and section 241 (4) are self-executing statutes. (Long v Forest-Fehlhaber, 55 NY2d 154; Martin v Herzog, 228 NY 164.) III. The court below was correct in finding no error in the court’s charge to the jury that Labor Law § 240 (1) and § 241 (4) are “general” statutes.

      Stephen D. Smyk for Elsand Steel, Inc., defendant and third-party plaintiff-respondent in the first above-entitled action.
    I. The complaint should properly have been dismissed as against respondent Elsand Steel, Inc. II. The charge by the trial court was fair and evenhanded, was not excepted to, and is the law of the case. (Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 58 NY2d 824; Employers Mut. Liab. Ins. Co. v Di Cesare & Monaco Concrete Constr. Corp., 9 AD2d 379.)

      Peter H. Bouman for Mac-Dan Erectors, Inc., third-party defendant-respondent in the first above-entitled action.
    I. Plaintiff was not entitled to a directed verdict or to a judgment notwithstanding the verdict on the issue of liability. (Cohen v Hallmark Cards, 45 NY2d 493; Caspersen v La Sala Bros., 253 NY 491; Martin v Siegfried Constr. Co., 16 AD2d 383; Mullin v Genesee Co. Elec. Light, Power & Gas Co., 202 NY 275; Salerno v Severino, 37 Misc 2d 777, 19 AD2d 946; Brant v Republic Steel Corp., 91 AD2d 841.) II. The trial court did not commit reversible error in its charge to the jury. (Long v Forest-Fehlhaber, 55 NY2d 154; Schumer v Caplin, 241 NY 346; Martin v Siegfried Constr. Co., 16 AD2d 383.) III. Public policy does not call for reversal.

      Merle M. Troeger for defendant-appellant and third-party plaintiff-appellant in the second above-entitled action.
    I. The legislative history of Labor Law § 240 (1) demonstrates it was intended to protect workers from injury caused by faulty construction equipment. (Wingert v Krakauer, 76 App Div 34; Caddy v Interborough R. T. Co., 195 NY 415; Koenig v Patrick Constr. Corp., 298 NY 313; Ploof v B. I. M. Truck Serv., 53 AD2d 750.) II. The scaffolding contemplated by Labor Law § 240 (1) was not required under the facts of this case. (Rocha v State of New York, 77 Misc 2d 290, 45 AD2d 633.) III. Labor Law § 240 (1) does not require the use of catch nets or safety belts and lines. (Kenny v Fuller Co., 87 AD2d 183; Franz v Dregalla, 94 AD2d 963; Ryan v Morse Diesel, 98 AD2d 615.) IV. If Labor Law § 240 (1) is expanded to include liability in the absence of a safety device, a reliable standard of judgment outside the statute must be used. (Peddle v Turner Constr. Co., 92 AD2d 530; Kenny v Fuller Co., 87 AD2d 183; Larabee v Triangle Steel, 86 AD2d 289; Brant v Republic Steel Corp., 91 AD2d 841; Van Slyke v Niagara Mohawk Power Corp., 93 AD2d 990.) V. Regulations promulgated by the Board of Standards and Appeals do not require scaffolding, safety nets or safety belts and lines under the facts of this case. (Long v Forest-Fehlhaber, 55 NY2d 154; Haimes v New York Tel. Co., 46 NY2d 132; Allen v Cloutier Constr. Corp., 44 NY2d 290.) VI. Regulations promulgated by the occupational safety and health administration do not require scaffolding, safety nets or safety belts and lines under the facts of this case. VII. Proof of industry custom and usage was properly permitted to show whether certain devices specified by plaintiff were required. (La France v Niagara Mohawk Power Corp., 89 AD2d 757; Bland v Manocherian, 93 AD2d 689.) VIII. Where a plaintiff has an adequate safety device available to him, but declines to use it, a jury may properly find that defendants are not liable under Labor Law § 240. (Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361; Phillips v Flintkote Co., 89 AD2d 724.) IX. “Proper protection” under Labor Law § 240 (1) is a question of fact for the jury. (Glielmi v Toys “R” Us, 94 AD2d 663, 62 NY2d 664; Bland v Manocherian, 93 AD2d 689; Phillips v Flintkote Co., 89 AD2d 724; Facteau v Cote, 85 AD2d 865; Kalofonos v State of New York, 115 Misc 2d 692; Duda v Rouse Constr. Corp., 32 NY2d 405; Hughes v Alvord & Swift, 55 AD2d 570; Struble v John Arborio, Inc., 74 AD2d 55; Lagzdins v United Welfare Fund-Security, 77 AD2d 585; Ryan v Cenci, 95 AD2d 963.) X. Where the trial court usurped the proper function of the jury, the jury’s verdict should be reinstated. (Olsen v Chase Manhattan Bank, 10 AD2d 539, 9 NY2d 829; Petrofsky v Drucks, 16 AD2d 690; Rudes v Walrath, 85 AD2d 914.) XI. Granting full relief to appellant, Werner Spitz Construction Co., Inc., necessarily entails granting relief to the nonappealing party, Kelview, Incorporated. (Hecht v City of New York, 60 NY2d 57; Cover v Cohen, 61 NY2d 261.)

      Charles A. Hall and Eileen E. Buholtz for third-party defendant-appellant in the second above-entitled action.
    I. Labor Law § 240 (1) has been improperly interpreted by the court below. (Brant v Republic Steel Corp., 91 AD2d 841; Wingert v Krakauer, 76 App Div 34; Caddy v Interborough R. T. Co., 195 NY 415; Kenny v Fuller Co., 87 AD2d 183; Franz v Dregalla, 94 AD2d 963; Ryan v Morse Diesel, 98 AD2d 615.) II. There is a division of opinion among the Appellate Divisions regarding the proper application of Labor Law § 240 (1). (Van Slyke v Niagara Mohawk Power Corp., 93 AD2d 990; DaBolt v Bethlehem Steel Corp., 92 AD2d 70; Carinha v Action Crane Corp., 58 AD2d 261; Tully v Roosevelt Props., 34 AD2d 786; Ploof v B.I.M. Truck Serv., 53 AD2d 750.) III. Whether an owner or contractor has provided an injured worker with “devices” which give “proper protection” is a question of fact for the jury to decide after it hears testimony regarding administrative safety rules and regulations and customs and usage of safety devices in the industry. (Koenig v Patrick Constr. Co., 298 NY 313; Bland v Manocherian, 93 AD2d 689; Struble v John Arborio, Inc., 74 AD2d 55;
      Kalofonos v State of New York, 115 Misc 2d 692; Glielmi v Toys “R” Us, 94 AD2d 663; Phillips v Flintkote Co., 89 AD2d 724; Hughes v Alvord & Swift, 55 AD2d 570; Facteau v Cote, 85 AD2d 865; Novell v Carney Elec. Constr. Corp., 123 Misc 2d 1089; McLean v L. P. W. Realty Co., 404 F Supp 711, 507 F2d 1032.) IV. Plaintiff had an adequate safety device (his own safety belt and line) available to him but refused to use it. Therefore, no liability under Labor Law § 240 (1) should attach. (Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361.)

      Wayne M. Harris and Melvin L. Olver for respondent in the second above-entitled action.
    I. Labor Law § 240 is an absolute liability statute, enacted for the express purpose of protecting workmen from injury, and breach of the duty imposed thereby renders contractors and owners absolutely liable for injuries suffered by workers as a result of such breach, without regard to contributory negligence, “custom and usage”, “rules and regulations” or other evidence relating to a negligence standard of due or reasonable care. (Stewart v Ferguson, 164 NY 553; Caddy v Interborough R. T. Co., 195 NY 415; People ex rel. Sheldon v Board of Appeals, 234 NY 484; Quigley v Thatcher, 207 NY 66; Koenig v Patrick Constr. Corp., 298 NY 313; Sarnoff v Charles Schad, Inc., 22 NY2d 180; Haimes v New York Tel. Co., 46 NY2d 132; Major v Waverly & Ogden, 7 NY2d 332; Larabee v Triangle Steel, 86 AD2d 289; Kenny v Fuller Co., 87 AD2d 183, 58 NY2d 603.) II. Upon the showing of a violation of Labor Law § 240 (1), which “violation is the proximate cause of the injury complained of, plaintiff is entitled to a directed verdict, as a matter of law, on the issue of liability. (Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361; Long v Forest-Fehlhaber, 55 NY2d 154; Monroe v City of New York, 67 AD2d 89; Larabee v Triangle Steel, 86 AD2d 289; Kenny v Fuller Co., 87 AD2d 183; Brant v Republic Steel Corp., 91 AD2d 841; Peddle v Turner Constr. Co., 92 AD2d 530; Franz v Dregalla, 94 AD2d 963; Long v Murnane Assoc., 68 AD2d 166, 48 NY2d 776; Cardile v DAmbrosia, 72 AD2d 544.)
   OPINION OF THE COURT

Alexander, J.

We are called upon on these appeals to determine the extent to which Labor Law § 240 (l) imposes liability upon an owner or contractor who has failed to provide any safety devices for workers at a building worksite, and the absence of such devices is the proximate cause of injury to a worker. Based on the clear language of the statute and its purpose as articulated by the Legislature, we hold that an owner or contractor under these circumstances is absolutely liable in damages for injuries sustained by such worker.

In Zimmer v Chemung County Performing Arts, plaintiff, an ironworker, was injured while working as a member of a crew erecting a steel skeleton for an addition to a building owned by defendant Chemung County Performing Arts. Plaintiff’s duties as a “connector” involved his assembling beams and columns that formed the skeleton. The accident occurred when plaintiff, in the manner usually employed by connectors in performing this task, scaled a 31-foot vertical column in order to direct a crane operator who was raising a horizontal beam to a position where plaintiff could reach it and effect the connection with the vertical column. In pulling himself over the top of the beam, plaintiff lost his grip and fell. He struck a horizontal beam in his descent and landed in an excavation outside of the structure’s perimeter.

Ladders were present at the worksite, but none had been erected for plaintiff’s specific task. In addition, it is uncontroverted that no safety devices were erected or provided to plaintiff. Defendants, the building owner and several contractors, presented evidence at trial that various devices, such as netting, metal decking and lifelines, normally are not used during the early stages of construction projects such as this where the steel skeleton has not yet been plumbed and securely bolted and that it would have been infeasible, even dangerous, to have used any such devices. At the close of the evidence, the trial court denied plaintiff’s motion for a directed verdict, and the jury returned a verdict in defendants’ favor. Plaintiff’s motions to set aside the verdict and for a new trial were denied.

The Appellate Division, with one Justice dissenting, affirmed, holding that questions of fact as to whether defendants had violated the provisions of the Labor Law were raised by the conflicting expert testimony concerning the utility and feasibility of safety devices at this early stage of the construction, which issues of fact were properly submitted to the jury and resolved adversely to plaintiff.

In Hunt v Spitz Constr. Co., the plaintiff ironworker sustained serious injuries when he fell 25 feet from the flat roof of a building on which he was welding corrugated decking. Plaintiff sought to recover damages from Kelview, Incorporated, the owner of the property, and Werner Spitz Construction Company, Inc., the general contractor, asserting their liability grounded both in negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). As in Zimmer, it is conceded that no safety device was furnished to plaintiff. Defendants introduced evidence of industry custom and usage in an attempt to establish that devices such as scaffolding, nets, safety lines and safety belts were never used on the type of building involved. They also presented evidence of various State and Federal regulations that require safety devices for work places, which they argue are either inapplicable to the situation here presented or were satisfied, thus negating any claimed violation that would constitute negligence.

Decision was reserved on plaintiff’s motion for a directed verdict made at the close of the evidence and the issue of defendants’ liability was submitted to the jury. The jury returned a verdict of no cause of action under either a negligence theory or violation of the Labor Law. The trial court granted plaintiff’s motion to set aside the verdict and for a directed verdict on liability, reasoning that in view of the uncontroverted proof that no safety devices were provided, there was no view of the evidence by which the jury could reasonably find that defendants’ failure to provide safety devices was not a contributory factor in bringing about plaintiff’s injuries and thus that there was a violation of Labor Law § 240 (1). Trial Term’s order and judgment were affirmed by the Appellate Division (99 AD2d 671) and the ensuing trial on damages resulted in a judgment of $450,000 for plaintiff. We granted defendants leave to appeal from the final judgment pursuant to CPLR 5602 (a) (1) (ii). We now reverse the Appellate Division’s order in Zimmer and affirm the order in Hunt.

We begin our analysis by again observing that the legislative history of the Labor Law, particularly sections 240 and 241, makes clear the Legislature’s intent to achieve the purpose of protecting workers by placing “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” (1969 NY Legis Ann, at 407), instead of on workers, who “are scarcely in a position to protect themselves from accident” (Koenig v Patrick Constr. Co., 298 NY 313, 318).

We gave early recognition to this legislative intent when we declared with respect to section 240, which was then substantially in its present form, that “this statute is one for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed” (Quigley v Thatcher, 207 NY 66, 68, quoted in Koenig v Patrick Constr. Co., supra, at p 319).

Thus, we held unavailable to a defendant owner charged with a violation of section 240 the defense of the worker’s contributory negligence, noting that “both sound reason and persuasive decisions, involving statutes whose content and purpose are similar to section 240, require the conclusion that that statute does not permit the worker’s contributory negligence to be asserted as a defense [citations omitted]” (Koenig, supra, at p 317). So, too, in Joyce v Rumsey Realty Corp. (17 NY2d 118,122), in considering the liability of a contractor for a violation of section 241 (1) as it existed prior to 1962, which required that the contractor complete the flooring as the building progresses, we cited Koenig in holding that “[t]he duty imposed by the statute and violated by defendant [contractor] was ‘a flat and unvarying’ one * * * ‘[F]or breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it’” (Joyce v Rumsey Realty Corp., supra, at p 122). We held that a violation of such a statute is conclusive evidence of negligence and conclusive evidence of negligence calls for a directed verdict (Joyce v Rumsey Realty Corp., supra; see, Major v Waverly & Ogden, 7 NY2d 332, 334).

Further support for the conclusion that the failure to provide any protective devices for workers at the worksite establishes an owner or contractor’s liability as a matter of law is found in our previous holdings regarding the defenses available to an owner or contractor charged with a violation of section 240 (1) and the first five subdivisions of section 241, as contrasted to those available where the charge is a violation of a rule or regulation promulgated pursuant to section 241 (6). In Long v Forest-Fehlhaber (55 NY2d 154), the issue was whether the contributory (now comparative) negligence of the plaintiff is a defense in an action based upon the violation of administrative rules adopted pursuant to the authorization of section 241 (6). We held that although the Legislature had placed the ultimate responsibility for safety practices at the worksite on the owner and general contractor where such responsibility actually belonged, the owner and general contractor’s “ultimate responsibility” or “ultimate liability” under section 241 (6) was “unavoidable” only in the sense that it could not be delegated to another and not in the sense that it precluded an owner or contractor from raising any defense to the imposition of liability. We held that because a “violation of the administrative rules adopted pursuant to the authorization of subdivision 6 of section 241 of the Labor Law cannot rise to the level of negligence as a matter of law, contributory negligence was, and comparative negligence now is, a defense to an action based on such a dereliction” (Long, at p 161).

We found this conclusion reinforced by the long-established principle that a rule of an administrative agency or an ordinance of a local government is merely some evidence to be considered on the question of a defendant’s negligence and lacks the force and effect of a substantive legislative enactment. Thus, “[u]nlike a violation of the explicit provisions of a statute proper, a breach of an administrative rule ** * * does not establish negligence as a matter of law, [thus it] does not render a plaintiff’s own negligence irrelevant and, therefore, unacceptable as a defense [citations omitted]” (Long v Forest-Fehlhaber, supra, at p 160). We further observed that subdivision 6, which “does no more than broadly provide that the owner and contractor see to it that the area where the work is to be performed is ‘so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety’ * * * does not in terms provide how these ends are to be met [and is] * * * but a reiteration of common-law standards” (id.; citations omitted). Finally, we observed that section 241 (6) is to be contrasted with the first five subdivisions of section 241, in which specific safeguards are set out, and with section 240, “a self-executing statute which, containing its own specific safety measures, does not defer to the rule-making authority of the board (Haimes v New York Tel. Co. [48 NY2d 132])” (id., at p 160; Brant v Republic Steel Corp., 91 AD2d 841; Kenny v Fuller Co., 87 AD2d 183, lv denied 58 NY2d 603; Larabee v Triangle Steel, 86 AD2d 289; France v Niagara Mohawk Power Corp., 89 AD2d 757; Monroe v City of New York, 67 AD2d 89, 105-106). Thus, a violation of section 240 (1) or the first five subdivisions of section 241 creates absolute liability. The failure to provide any safety devices is such a violation.

In Zimmer, the claimed violations were of sections 240 (1) and 241 (4) of the Labor Law. Thus, the Appellate Division correctly observed that there was no allegation of common-law negligence, and that there was no error in the trial court’s failure to instruct the jury on the applicable rules and regulations issued by the Board of Standards and Appeals. However, in light of the uncontroverted fact that no safety devices were provided at the worksite, it was error to submit to the jury for their resolution the conflicting expert opinion as to what safety devices, if any, should be used during the very early stages of the construction. Rather, a verdict of liability should have been directed in plaintiff’s favor. Conversely, in Hunt, in light of the uncontroverted fact that no safety devices were provided to plaintiff at the worksite, the jury’s verdict of no liability in respect to the claimed violation of section 240 (1) was unsupportable and was properly set aside.

As indicated above, where an owner or contractor fails to provide any safety devices, liability is mandated by the statute without regard to external considerations such as rules and regulations, contracts or custom and usage. Although in Hunt, evidence of custom and usage was admissible to determine the standard of care in a negligence context under the claimed violation of sections 200 and 241 (6), where injury is allegedly caused through a violation of section 240 (1), which establishes its own unvarying standard, evidence of industry practice is immaterial (cf. International Harvester Co. v Town of Ellery, 28 AD2d 1081 [“custom, usage and practice may not waive, or in effect avoid, a mandatory statute which is clear and unambiguous on its face”]). Neither section 241 (6), nor section 200, in contrast to section 240 (1), is self-executing, but rather, both require reference to outside sources to determine the standard by which a defendant’s conduct must be measured. As noted by the Second Department in Kenny v Fuller Co. (87 AD2d 183, lv denied 58 NY2d 603, supra), “[t]he primary distinction between sections 240 (subd 1) and 241 (subd 6) is that the latter requires a determination of whether the safety measures actually employed on a job site were ‘reasonable and adequate’, while the former is mandatory in its nature and imposes absolute liability for any injury arising from its breach. The question of * * * circumstantial reasonableness is therefore irrelevant under subdivision 1 of section 240” (id., at p 186 [citations omitted]).

To determine an owner or contractor’s liability for a violation of section 240 (1) by reference to whether safety devices customarily are used, and, if so, which ones give “proper protection” would allow owners and contractors to diminish their obligations under that statute and to set their own standard of care for the protection of workers at the worksite. This would clearly contravene the legislative purpose of placing “ultimate responsibility for safety * * * on the owner and general contractor” (1969 NY Legis Ann, at 407). As observed by Justice Mikoll, in her dissent in Zimmer, “[i]f the state of the building art is such that no devices have yet been devised to protect workers operating at such heights in dangerous work, it is illogical to conclude, given the purpose of the statute, that the responsibility of owners and contractors is then negated” (Zimmer v Chemung County Performing Arts, 102 AD2d 993, 995).

Appellants in Hunt and respondents in Zimmer contend that it is always an issue of fact whether “proper protection” has been provided under section 240 (1). However, when the evidence establishes the absence of any safety devices at the worksite, the statute’s clear dictates have not been met. The mere presence of ladders or safety belts somewhere at the worksite does not establish “proper protection”, leaving for the jury only the question whether the absence of safety devices was a proximate cause of the plaintiff’s injury (Brant v Republic Steel Corp., 91 AD2d 841, supra). Although the plaintiff is “required to show that the violation of section 240 of the Labor Law was a contributing cause of [his accident]” (Phillips v Flintkote Co., 89 AD2d 724, 725), and this issue should be determined by the jury, where there is no view of the evidence at trial to support a finding that the absence of safety devices was not a proximate cause of the injuries, the court may properly direct a verdict in the plaintiff’s favor (Rea v Elia Bldg. Co., 79 AD2d 1102; see, Duda v Rouse Constr. Corp., 32 NY2d 405, 410; Joyce v Rumsey Realty Corp., 17 NY2d 118, 122-123, supra; Heath v Soloff Constr., 107 AD2d 507, 512; Brant v Republic Steel Corp., supra). If proximate cause is established, the responsible parties have failed, as a matter of law, to “give proper protection.”

Accordingly, in Zimmer v Chemung County Performing Arts, we hold that the trial court erred in denying plaintiff’s motion for a directed verdict. The evidence established a breach of the statutory duty, and thus absolute liability, by defendants’ failure to provide any safety devices. There is no view of the evidence by which defendants’ violation of section 240 (1) could not have been a proximate cause of plaintiff’s injury. Thus, a new trial is required on the issue of damages only.

For the same reasons, in Hunt v Spitz Constr. Corp., we affirm the judgment appealed from and the Appellate Division order brought up for review which affirmed the granting to plaintiff of judgment notwithstanding the verdict.

Simons, J.

(concurring). I concur with the court’s holding that an owner or contractor is absolutely liable under sections 240 (1) and 241 (l)-(5) of the Labor Law for injuries caused to workers because of a failure to supply safety devices and see to their proper placement and operation.

I would add that Smith v Hooker Chems. & Plastics Corp. (89 AD2d 361, appeal dismissed 58 NY2d 824) relied on by defendants is distinguishable from the appeals before us. The plaintiff in that action was the on-site supervisor of a roofing subcontractor’s crew and sued the owner of the premises for injuries he sustained when he fell from the roof of a building under construction. He moved for partial summary judgment before trial contending that under section 240 (1) the owner was absolutely liable to him. The moving papers demonstrated, however, that there were two versions of how he sustained his injuries, plaintiff’s version that he fell when the safety equipment supplied him failed and the version of Toth, a coemployee, who alleged that plaintiff fell while working without safety equipment. Toth testified that it had been his job to repair the roof but that on the day of the accident he had refused to go onto the roof until plaintiff replaced the safety equipment which had been removed after completion of work the day before. Plaintiff refused to replace the equipment, Toth said, for what he considered a minor job and because Toth refused to go onto the roof without it plaintiff decided to perform the work himself. Thus, in the Smith case equipment was actually at the place it was to be used, it had been used the day before and the worker assigned to do the job had requested that it be put in place. Plaintiff, the subcontractor’s employee charged with supervising the crew’s work, was injured when he fell from the roof after deciding to risk doing the work without troubling to replace the equipment.

Arguing the motion, plaintiff claimed he was entitled to partial summary judgment on the issue of liability regardless of the version accepted because defendant was an insurer of the workers’ safety, obliged not only to supply and place the equipment but to compel him to use it.

The Appellate Division reversed Trial Term’s order granting plaintiff partial summary judgment, finding a factual issue on whether the injuries were caused by the failure to supply and properly place safety devices or by the refusal of the worker to use the devices supplied. In responding to plaintiff’s argument, the court distinguished section 240 (1) from the broader provisions of Labor Law § 202 which specifically mandate that employers and contractors must require employees to use available safety devices. Its ruling was a narrow one, that section 240 (1) does not impose a duty on an owner, as a matter of law, to compel a worker who refuses to use available satisfactory equipment to do so. That decision has no application to the facts of these cases in which those charged with responsibility for supplying safety devices deny the obligation or feasibility of doing so and rely alternatively upon evidence that there were ladders or safety belts available for use somewhere in the area of the construction site.

Chief Judge Wachtler

(dissenting). Nothing in either the legislative history of Labor Law §240 (1) or in our decisions construing that statute suggests that it contemplates holding contractors and owners responsible for providing safety devices where the proof establishes that no such devices were available or could be adapted to the situation in which the employee was injured. Although it is true, as the majority suggests, that the statute places responsibility for safety practices at construction sites on the owner and general contractor, it does not impose upon them insurers’ liability when they fail to do the impossible.

The majority relies primarily on the legislative intent underlying Labor Law § 240 (1) in support of its conclusion that the statute was intended to impose insurers’ liability upon those owners and contractors whose employees have been injured on the job. However, as I have noted, nothing in the available legislative history or in our prior decisions supports such a conclusion.

Read in its entirety, the memorandum of Senator Calandra and Assemblyman Amann (1969 NY Legis Ann, at 407) makes it clear that the 1969 amendments to section 240 (L 1969, ch 1108) were intended to effect an expansion only of who could be held liable under the statute, not an expansion of the bases for liability. Thus, as the majority suggests, the amendment “places ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” (at 407); it does so because the statute prior to amendment allowed subcontractors to “relieve the owner or general contractor of liability for safe work practices merely by securing the basic workmen’s compensation coverage” (id.). The amendment, intended to reestablish the exposure of general contractors and owners, changed those covered by its provisions from “A person employing or directing another to perform labor of any kind” to “All contractors and owners and their agents” (L 1969, ch 1108, § 1). The amendment only changed the parties liable, the “who” not “the what” of the statute (Haimes v New York Tel. Co., 46 NY2d 132; Allen v Cloutier Constr. Corp., 44 NY2d 290, rearg denied 45 NY2d 776; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 364, n 3, appeal dismissed 58 NY2d 824). We recognized that there were limits to the so-called “absolute” liability imposed by section 240 in Koenig v Patrick Constr. Corp. (298 NY 313, 319), where we noted that the legislative purpose was to require “the employer to safeguard the workers from injury caused by faulty or inadequate equipmenti” (emphasis added).

Nowhere in this account is there any indication that the Legislature intended to impose upon owners and contractors the responsibility for accidents they could not have prevented. The majority points to no case which has so held. I believe the imposition of such liability, predicated upon generalized expressions of legislative intent, taken out of context, is an unwarranted usurpation of the legislative function by this court with which I cannot concur.

In addition, proximate cause is a necessary element in an action based on Labor Law § 240 (Duda v Rouse Constr. Corp., 32 NY2d 405, 410) and, when the establishment of that element has turned on whether the missing safety devices, if provided, could have prevented the plaintiff’s injury, the question has been one for the jury (Glielmi v Toys “R” Us, 94 AD2d 663, affd 62 NY2d 664).

Because I read the statutory policy underlying Labor Law § 240 as encouraging owners and contractors to provide safety devices where possible, and not to provide insurance coverage to their employees (who are already covered by workers’ compensation), I respectfully dissent, and urge the Legislature to amend the statute to make this intent more clear. The imposition of insurers’ liability on owners and contractors will not further the goal of protecting workers, because the absent devices cannot protect them. It will, however, hurt the building industry and perhaps cost those already adequately protected workers their jobs. In Zimmer v Chemung County Performing Arts, therefore, the order of the Appellate Division should be affirmed, and in Hunt v Spitz Constr. Co., the judgment appealed from and order of the Appellate Division brought up for review should be reversed and the jury’s verdict reinstated.

Judges Meyer, Simons and Kaye concur with Judge Alexander; Judge Simons concurs in a separate concurring opinion; Chief Judge Wachtler dissents and votes to affirm in another opinion in which Judge Jasen concurs; Judge Titone taking no part.

In Zimmer v Chemung County Performing Arts: Order reversed, with costs, plaintiff’s motion for a directed verdict granted, and case remitted to Supreme Court, Tioga County, for a new trial on the issue of damages only.

In Hunt v Spitz Constr. Co.: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      . Labor Law § 240 (1) provides, in pertinent part: “1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

      . Labor Law § 241 (4) provides that:
      “All contractors and owners and their agents * * * when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
      * * *
      “4. If the floor beams are of iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work is being erected shall be thoroughly planked over, except spaces reasonably required for proper construction of the iron or steel work, for raising or lowering of materials or for stairways and elevator shafts designated by the plans and specifications.”

       Labor Law § 240 (1) provides, in pertinent part: “1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”