author: Chief Judge Kaye.

text:
    [629 NE2d 1040, 608 NYS2d 161]
    In the Matter of Jill ZZ., Respondent. Richard C. Surles, as Commissioner of the New York State Office of Mental Health, Appellant.
    Argued January 6, 1994;
    decided February 15, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General, Albany (Martin A. Hotvet, Jerry Boone and Peter H. Schiff of counsel), for appellant.
    The decision below that the County Court lacked jurisdiction to issue a modified order of conditions under CPL 330.20 is not consistent with the statutory scheme. (People v Stone, 73 NY2d 296; People ex rel. Thorpe v Von Holden, 63 NY2d 546; Jones v United States, 463 US 354; People v Flockhart, 96 AD2d 843; Matter of Zamichow, 176 AD2d 807, appeal dismissed sub nom. Matter of Lloyd Z., 79 NY2d 851.)

      Sheila E. Shea, Albany, Bruce S. Dix and David M. Le Vine

    for respondent.
    I. Appellant has failed to preserve its argument that the order appealed from is a modification of a timely issued order of conditions. (McMillan v State of New York, 72 NY2d 871; Matter of Hopkins v Blum, 58 NY2d 1011.) II. Criminal Term’s order of conditions regulating respondent’s release contravenes the statutory framework. (People v Flockhart, 96 AD2d 843; People ex rel. Thorpe v Von Holden, 63 NY2d 546; Town of Islip v Cuomo, 147 AD2d 56; People ex rel. Candella v Director of Marcy Psychiatric Ctr., 88 Misc 2d 44; People v Stone, 73 NY2d 296; Matter of Zamichow, 176 AD2d 807.) III. An interpretation of the statutory framework which subjects respondent to the conditional release provisions of CPL 330.20 would violate constitutional principles of due process and equal protection of the law. (Addington v Texas, 441 US 418; Jackson v Indiana, 406 US 715; Humphrey v Cady, 405 US 504; O’Connor v Donaldson, 422 US 563; People v Stone, 138 AD2d 4, 73 NY2d 296; People v Flockhart, 96 AD2d 843; Matter of Zamichow, 176 AD2d 807; Rovello v Orofino Realty Co., 40 NY2d 633; Condon v Associated Hosp. Serv., 287 NY 411; People v Gray, 71 AD2d 295.)
   OPINION OF THE COURT

Chief Judge Kaye.

The Criminal Procedure Law directs that, as to insanity acquittees found mentally ill but not dangerous, an order of conditions must be entered, which remains in effect for at least five years, preserving the court’s jurisdiction over defendant. This appeal calls upon us to determine the effect of a failure to follow the statutory procedure for entry of the order of conditions.

I.

On March 15, 1990, respondent was acquitted of burglary in the second degree, having been found not responsible by reason of mental disease or defect. The Criminal Procedure Law requires that such acquittees undergo a psychiatric examination, ordinarily to be completed within 30 days (see, CPL 330.20 [2]-[4]). The examiners’ findings and evaluations are then submitted to the convicting court for an initial hearing, to be conducted within 10 days of receipt of their reports, in order to assess the defendant’s current mental condition (see, CPL 330.20 [5]-[6]).

County Court, after the initial hearing, determined that respondent was "currently suffering from a mental illness but is not dangerous as a result of that disorder” and entered a civil order of commitment on August 17, 1990. Pursuant to that order, respondent was committed to the custody of the Commissioner of Mental Health to be placed in a nonsecure facility "for care and treatment pursuant to the applicable provisions of the Mental Hygiene Law” (see, CPL 330.20 [6], [7]).

That same day, respondent was admitted to the Capital District Psychiatric Center, and on February 12, 1991, she became a voluntary patient (see, Mental Hygiene Law § 9.23). The Office of Mental Health, with respondent’s participation, developed a written service plan for her release (see, Mental Hygiene Law § 29.15 [f]), which provided that she would reside at the Hearth Community Residence and attend specified treatment programs on a trial basis. On June 7 respondent received a discharge pass for that purpose, and on July 10, 1991 she was formally released (see, Mental Hygiene Law § 9.13 [b]).

On June 21, 1991, shortly before respondent’s formal release, the Commissioner submitted to County Court a proposed order of conditions to remain in effect for five years from date of entry. Paralleling the service plan, the proposed order placed conditions on respondent’s residence, parental visits and alcohol consumption, required her to attend various counselling sessions and programs, and ordered periodic reports of her mental condition.

On respondent’s behalf, the Mental Hygiene Legal Service moved to dismiss the Commissioner’s application on the sole ground that County Court lacked jurisdiction to entertain it, urging that Mental Hygiene Law § 29.15 provided for the conditional release of an involuntary patient only for the remainder of the authorized retention period, and of a voluntary patient only on consent. County Court rejected respondent’s argument and, on August 2, 1991 entered an order of conditions, effective for five years from the order of commitment. The Appellate Division, however, reversed and dismissed the Commissioner’s application, holding that an order of conditions may be entered no later than the expiration of a defendant’s period of involuntary commitment. We granted leave and now reverse, agreeing with County Court that, in the circumstances presented, entry of the order of conditions was permitted. No challenge is made to the appealability of County Court’s order (see, 184 AD2d 121, 123-124), or to the substance of the order of conditions. Only the trial court’s jurisdiction to enter an order of conditions several months after an order of commitment is before us.

II.

The Insanity Defense Reform Act of 1980 (L 1980, ch 548) significantly changed the postverdict procedures for defendants acquitted by reason of mental disease or defect (see, 1981 Report of NY Law Rev Commn, Appendix A, The Defense of Insanity in New York State, reprinted in 1981 McKinney’s Session Laws of NY, at 2251). The amendments were prompted by concern both that the convicting court lacked continuing supervision over the acquittee, and that once committed, acquittees are constitutionally entitled to essentially the same treatment as involuntary patients generally (see, 1981 Report of NY Law Rev Commn, Appendix A, The Defense of Insanity in New York State, reprinted in 1981 McKinney’s Session Laws of NY, at 2261-2266; Stokman and Heiber, The Insanity Defense Reform Act in New York State, 1980-1983, 7 Inti J L & Psychiatry 367, 368 [1984]; see also, Matter ofTorsney, 47 NY2d 667, 674-675).

CPL 330.20 now distinguishes defendants found upon initial examination to have a dangerous mental disorder ("track 1” defendants), from those who are mentally ill but not dangerous ("track 2”), and those who are neither dangerous nor mentally ill ("track 3”) (see, CPL 330.20 [6], [7]). Track 1 defendants, because they are dangerous, remain confined in a secure facility subject to continued judicial supervision pursuant to CPL 330.20 until adjudicated no longer dangerous (see, CPL 330.20 [1] [f]; [6], [8]; People v Stone, 73 NY2d 296, 301; Stokman and Heiber, op. cit, at 382). Track 3 defendants, neither dangerous nor mentally ill, must be immediately released (see, CPL 330.20 [7]). Track 2 defendants are subject to involuntary civil commitment under the Mental Hygiene Law and an order of conditions under the CPL (see, CPL 330.20 [7]). Respondent, found mentally ill but not dangerous, is a track 2 defendant.

As to track 2 defendants, CPL 330.20 (7) directs that, at the conclusion of the initial hearing, "the court must issue an order of conditions and an order committing the defendant to the custody of the commissioner.” An order of conditions— which is valid for five years and may be extended for good cause shown — is "an order directing a defendant to comply with this [sic] prescribed treatment plan, or any other condition which the court determines to be reasonably necessary or appropriate, and, in addition, where a defendant is in custody of the commissioner, not to leave the facility without authorization” (CPL 330.20 [1] [o]).

The statute contemplates that an order of conditions and an order of commitment will be issued simultaneously, at the conclusion of the initial hearing, though an order of conditions has a prescribed five-year term and an order of commitment has no specified term. This reading of the statute is buttressed by the two separate forms implementing the statute (see, 22 NYCRR subtit D, ch II, Form F [civil order of commitment refers to order of conditions "issued herewith”]; 22 NYCRR subtit D, ch II, Form N [order of conditions refers to civil order of commitment "issued on this date”]). Indeed, in the case before us, County Court commenced the five-year life of respondent’s order of conditions on August 17, 1990, which was the date of the order of commitment.

County Court having failed to enter an order of conditions, in writing or orally, at the time of the order of commitment, we must now decide whether the court could enter an order of conditions more than a year later, after respondent had become a voluntary patient. We conclude, in the circumstances presented, that it can.

The order of conditions allows courts to maintain a supervisory role over particular discharged criminal acquittees (Stone, 73 NY2d, at 300). At any time during the pendency of an order of conditions, the Commissioner may apply, on evidence that the defendant currently has a dangerous mental disorder, for an order recommitting the defendant pursuant to track 1 (see, CPL 330.20 [14]). Thus, in Stone, we held that a track 3 defendant, initially found not mentally ill and immediately released, remained subject to the court’s jurisdiction under the CPL for subsequent track 1 commitment so long as an order of conditions was in effect.

From this we conclude that the order of conditions is the vehicle by which the convicting court effectuates its continuing supervisory authority over the acquittee. Central to our conclusion is the statutory provision that the court must issue an order of conditions, thereby requiring the court to retain supervisory authority over all track 2 defendants, whether or not in the custody of the Commissioner (see, CPL 330.20 [7]). There is no discretion in this respect. In light of this directive, we cannot deem failure to seek entry of an order of conditions at the moment of commitment fatal to the court’s continuing authority to enter an order of conditions during the mandated term of the order. 3****Where, as here, no prejudice is claimed from postcommitment entry of an order of conditions — defendant was not charged, for example, with violation of an order of conditions without prior notice — the court had authority to enter the order nunc pro tune (see, Matter of Zamichow, 176 AD2d 807, 808).

Respondent tenders two arguments for dismissal of the order of conditions, both based on the language of CPL 330.20 (7) that "further retention, conditional release or discharge” of a track 2 defendant must be in accordance with the Mental Hygiene Law. She contends first, that County Court’s authority to subject her to an order of conditions expired not later than the end of her involuntary commitment and second, that the order would in any event terminate upon her release. Neither argument has merit.

An order of conditions is not subject to the Mental Hygiene Law, and was clearly intended to exist independent of the civil order of commitment authorizing confinement (see, CPL 330.20 [7]; Halpern, Rachlin and Portnow, New York’s Insanity Defense Reform Act of 1980: A Forensic Psychiatric Perspective, 45 Alb L Rev 661, 669 [1981]). A defendant’s release from commitment thus has no bearing on the order of conditions. Indeed, CPL 330.20 (1) (o) and CPL 330.20 (7) speak of orders of conditions whether or not the defendant is in the custody of the Commissioner pursuant to the Mental Hygiene Law.

Under the Mental Hygiene Law, "conditional release” is defined as "release subject to the right of the [facility] to return the patient to in-patient care” (Mental Hygiene Law § 1.03 [30]). County Court did not, by virtue of entry of the order of conditions, subject respondent to "conditional release.” We note, in addition, that the period of involuntary commitment for a track 2 defendant may be as brief as 72 hours (see, Mental Hygiene Law § 9.13 [b]; see also, Matter of Gene DD., 193 AD2d 147, 150). Respondent’s interpretation would render the statutory provisions for a mandatory five-year order of conditions essentially meaningless. Respondent’s remaining contentions are either unpreserved or without merit.

Accordingly, the Appellate Division order should be reversed, without costs, and the County Court order reinstated.

Judges Simons, Bellacosa, Smith and Ciparick concur; Judges Titone and Levine taking no part.

Order reversed, etc.

      . The order of commitment in this case, specifying that respondent was not to leave the facility without authorization, could of course also have itself constituted the substance of an order of conditions. However, it was not so labeled, and it did not recite that it was made pursuant to the CPL.

      . The legal issue of jurisdiction to enter an order of conditions under the Criminal Procedure Law plainly hinges on whether or not it must be entered at the time of the order of commitment. The fact that respondent thereafter remained in the facility involuntarily would not give rise to jurisdiction to enter an order of conditions, in that her commitment was pursuant to civil order, under the Mental Hygiene Law.

      . Reliance on People v Flockhart (96 AD2d 843, 844) in this regard is misplaced. That case did not address the court’s jurisdiction to enter an order of conditions — indeed, the order of conditions and order of commitment in that case were issued simultaneously (see, 96 AD2d, at 843). Rather, the court there invalidated certain conditions that subjected the track 2 defendant to a degree of judicial supervision warranted only as to track 1 defendants, and held that any such conditions imposed on remand "shall be effective only if defendant is involuntarily committed to the custody of the commissioner” pursuant to track 1 (96 AD2d, at 845; see also, Annotation, Validity of Conditions Imposed When Releasing Person Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity, 2 ALR4th 934).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [629 NE2d 1354, 608 NYS2d 396]
    Susan Joseph, as Parent and Natural Guardian of Randie Joseph, II, an Infant, Appellant, v City of Buffalo et al., Respondents. (And Another Action.)
    Argued January 13, 1994;
    decided February 17, 1994

      POINTS OF COUNSEL

      Miserendino, Krull & Foley, P. C., Buffalo (Philip Celniker, Michael R. Drumm and Joseph G. Krenitsky of counsel), for appellant.
    I. General Municipal Law § 50-j does not contravene or restrict applicable common-law principles of vicarious liability. (Kull v City of New York, 32 NY2d 951; Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Alifieris v American Airlines, 63 NY2d 370; Riviello v Waldron, 47 NY2d 297; Frazier v State of New York, 64 NY2d 802; Stavitz v City of New York, 98 AD2d 529; Wilson v City of New York, 173 AD2d 276; Clancy v County of Nassau, 142 AD2d 626; Mastroianni v Incorporated Vil. of Hempstead, 166 AD2d 560; Fuller v City of Yonkers, 100 AD2d 926.) II. The position of the City of Buffalo and the decisions of the Court below are inconsistent on the question of the existence of "factual issues” which preclude granting summary judgment.

      Napier, Fitzgerald & Kirby, Buffalo (Kenneth R. Kirby of counsel), for City of Buffalo, respondent.
    I. Based on the undisputed facts, the Court below properly granted the City of Buffalo’s motion for summary judgment. (Dinkins v Farley, 106 Misc 2d 593.) II. Whether analyzed pursuant to General Municipal Law § 50-j or under the doctrine of respondeat superior, as a matter of law, codefendant was not in the course and scope of employment at the time the gun discharged or when codefendant, after dozing allegedly stored the loaded, unlocked gun under his son’s bed before taking his children downstairs with him. (Lundberg v State of New York, 25 NY2d 467; Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Kull v City of New York, 40 AD2d 829, 32 NY2d 951.) III. General Municipal Law § 50-j (2) controls the result here, plaintiffs unpersuasive arguments notwithstanding. (Dinkins v Farley, 106 Misc 2d 593; Sanders v Winship, 57 NY2d 391; Matter of Evans v Berry, 262 NY 61; Berger v City of New York, 260 App Div 402, 285 NY 723; Breen v Mortgage Commn., 285 NY 425; Alifieris v American Airlines, 63 NY2d 370; Matter of Wilson v Board of Educ., 39 AD2d 965; Barasch v Micucci, 49 NY2d 594; People v Dethloff, 283 NY 309.) IV. Implicit in plaintiff’s argument is a collateral attack on a discretionary governmental function; for this reason, the doctrine of respondeat superior avails plaintiff not, for immunity attaches to such acts. (Mon v City of New York, 78 NY2d 309; Haddock v City of New York, 75 NY2d 478; Arteaga v State of New York, 72 NY2d 212; Desa v City of New York, 188 AD2d 313; Blatt v New York City Hous. Auth., 123 AD2d 591.) V. Plaintiff’s cases are either inapposite, neutral or favor respondent’s position. (Alifieris v American Airlines, 63 NY2d 370; Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Riviello v Waldron, 47 NY2d 297; Mott v Consumers’ Ice Co., 73 NY 543; Desa v City of New York, 188 AD2d 313, 81 NY2d 706; Shapiro v United Med. Serv., 15 NY2d 200; Dinkins v Farley, 106 Misc 2d 593; Frazier v State of New York, 64 NY2d 802.) VI. The cases cited by plaintiff which involved judgments for the municipality are not inconsistent with and do not require a different result here. (Garcia v City of New York, 104 AD2d 438; Fuller v City of Yonkers, 100 AD2d 926.) VII. Doctrine of "law of the case” was no bar to the result reached by the Court below. (Garcia v City of New York, 104 AD2d 438; Rogers v Decker, 131 NY 490; Smith v Town of Warwick, 71 AD2d 618.)

      Magavern & Magavem, Buffalo (George R. Rich of counsel), for Randie Joseph, respondent.
    I. Section 50-j of the General Municipal Law does not restrict common-law principles of respondeat superior and, in any event, defendant-respondent Joseph’s actions fell within the parameters of section 50-j. (Collins v City of New York, 11 Misc 2d 76, 8 AD2d 613, 7 NY2d 822; Garcia v City of New York, 104 AD2d 438, 65 NY2d 805; Stavitz v City of New York, 98 AD2d 529; Alifieris v American Airlines, 63 NY2d 370.) II. The prior decisions of the Court below on the question of the existence of factual issues as to whether defendant-respondent Joseph was acting within the scope of his employment are in conflict and by their very existence define an issue of fact.
   OPINION OF THE COURT

Smith, J.

The primary issue in this case is whether defendant City of Buffalo is entitled to summary judgment on the issue of its vicarious liability for the acts of defendant Joseph, an off-duty police officer, that resulted in severe injuries to his infant son.

On December 10, 1976, at approximately 8:00 a.m., defendant Randie Joseph, a police officer with the Buffalo Police Department, completed his eight-hour work shift and returned home carrying his loaded police service revolver. Defendant then went to the upstairs bedroom of his infant children, where he lay down on the bed of his three-year-old son, placed the unlocked, loaded revolver underneath the mattress, and observed his children as they played. As defendant later reclined downstairs on his living room couch, he heard the sound of a firearm being discharged. He ran upstairs to find his son underneath the mattress of his bed with a gunshot wound to his head. Defendant’s son had apparently rolled up the mattress and found defendant’s service revolver, which had discharged, injuring the infant.

Plaintiff, the child’s mother, commenced this personal injury action against the City of Buffalo alleging vicarious liability under the doctrine of respondeat superior. The City initiated a third-party action against Joseph for a judgment declaring that defendant was not acting within the scope of his employment when he placed the gun under his son’s mattress and when the accident occurred. Plaintiff moved for partial summary judgment against both defendants on the issue of liability. Plaintiff also joined Joseph’s motion for summary judgment on the issue of the City’s vicarious liability. Supreme Court granted plaintiff’s motion for partial summary judgment against Joseph on the issue of liability, and, citing Kull v City of New York (32 NY2d 951, revg 40 AD2d 829), denied defendant Joseph’s summary judgment motion against the City. The court concluded that whether Joseph’s negligence was attributable to the City of Buffalo could not be determined as a matter of law, but rather had to be left to the trier of fact. The Appellate Division affirmed, with two Justices dissenting (167 AD2d 830). While the majority declined to reach the issue of the vicarious liability of the municipality, the dissent determined that Supreme Court’s reliance on Kull v City of New York, which was decided prior to the enactment of General Municipal Law § 50-j, was misplaced because under section 50-j "[a] municipality [cannot] be held vicariously liable for the acts of an off-duty officer 'absent some evidence that [the officer] was at least arguably engaged in police business’ as opposed to a private matter” (id., at 832). Thus, the dissent concluded that summary judgment should be granted dismissing the action against the City since Joseph was not engaged in police business when he placed the gun under his son’s mattress and when the accident occurred.

Thereafter, Supreme Court granted plaintiff’s request for further discovery, denied in part defendant City’s cross motion for a protective order, and directed that the City’s motion for summary judgment be held in abeyance pending the completion of discovery and further submissions. The Appellate Division reversed, on the law, granted the City’s motion for summary judgment, and dismissed the complaint against that defendant (187 AD2d 946). The Court expressly adopted the analysis set forth in the dissent on the prior appeal and concluded that Joseph, at the time of the conduct in issue, was not engaged in any police business and that the City is not vicariously liable for his conduct (id., at 947). This Court granted plaintiff’s motion for leave to appeal.

Contrary to plaintiff’s assertion, section 50-j of the General Municipal Law does not preclude summary judgment in this case. That statute governs the ultimate responsibility for negligence in the performance of duties by police officers. Subdivision (1) provides, in part, that a city shall assume the liability for the negligent act or tort of a duly appointed police officer of such municipality "provided such police officer, at the time of the negligent act or tort complained of, was acting in the performance of his duties and within the scope of his employment.” A police officer is deemed to be acting in the discharge of duty "when engaged in the immediate and actual performance of a public duty imposed by law and such public duty performed was for the benefit of the citizens of the community * * * and the municipal corporation * * * derived no special benefit in its corporate capacity” (General Municipal Law § 50-j [2]).

Here, Joseph was not acting in the performance of his duties and within the scope of his employment when he placed the gun under his son’s mattress and when the accident occurred as he napped in his home. Rather, he had returned home from work, placed the unlocked, loaded revolver underneath his son’s mattress and gone downstairs to rest when his revolver accidentally discharged several hours later. Thus, it cannot be said that Joseph was engaged in the immediate and actual performance of a public duty imposed by law. The fact that rules 4.8.6 and 4.1.9 of Rules for the Government and Discipline of the Police Department of the City of Buffalo require police officers to carry their service revolvers while off duty, and to undertake the same responsibility for the suppression of disturbances and in the arrest of offenders when off duty as when on duty, does not warrant a different result. Furthermore, rule 4.8.3 states that police officers "shall be responsible for the security of their firearms at all times.”

We must examine Kull v City of New York (supra) and the impact, if any, of section 50-j. In Kull, a police officer was preparing to go on his tour of duty. He had just finished shaving and was walking toward his kitchen carrying his revolver. He placed the revolver on a television set in order to put on his shirt. Shortly thereafter, the infant plaintiff picked up the revolver and was injured when it accidentally discharged. That feature materially differentiates Kull from the present case, where the officer left his loaded service revolver unattended under his infant son’s mattress for several hours while he napped in his own home. That conduct is wholly unrelated to any duty involving his employment.

The Appellate Division majority in Kull determined that there was no evidence upon which a jury could find that the police officer was acting within the scope of his employment at the time of the accident (40 AD2d 829, supra). Noting that the Police Department’s regulations required the police officer to be available for duty at all times and to carry a revolver at all times, the dissent concluded that the issue of whether the police officer’s actions were "in furtherance of his employer’s interests” was a question of fact for the jury, and that it was error for the trial court to hold, as a matter of law, that any negligence on the part of the police officer was not attributable to the Police Department, the sole defendant (id., at 830). This Court reversed on the dissenting opinion at the Appellate Division (32 NY2d 951, supra).

Section 50-j was intended to extend the applicability of the previous General Municipal Law § 50-j, which was limited to the City of New York, "to all counties, cities, towns, villages, authorities and agencies to require them to assume the liability of and save harmless any duly appointed police officer for any negligent act committed in the performance of his duties and within the scope of his employment” (Mem of Dept of State, Bill Jacket, L 1975, ch 843). The purpose of the statute is to protect police officers from liability for their negligent acts while in the furtherance of their employers’ interests, or in the statutory words "in the immediate and actual performance of a public duty imposed by law” (General Municipal Law § 50-j [2]). This purpose does not affect the force of Kull v City of New York, our distinguishing it, or the applicable common-law principles of vicarious liability.

We have examined plaintiff’s remaining contentions and conclude that they are without merit.

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

Chief Judge Kaye and Judges Simons, Beliacosa, Levine and Ciparick concur; Judge Titone taking no part.

Order affirmed, with costs.

       Defendant Joseph’s cross motion for leave to appeal was dismissed as untimely.


author: Levine, J.

text:
    [629 NE2d 1356, 608 NYS2d 398]
    In the Matter of the Estate of Harry A. Cohen, Deceased. Joel Goldberg, Appellant-Respondent; Rae Cohen, Respondent-Appellant.
    Argued January 11, 1994;
    decided February 17, 1994

      POINTS OF COUNSEL

      Hatter, Donovan & McFaul, Mineóla (John M. McFaul and Robert E. Trop of counsel), for appellant-respondent.
    I. When a contract is used to enforce a joint or mutual will which provides that the collective property of both parties pass to ultimate beneficiaries, the survivor to the agreement receives a life estate in the assets and is deemed a trustee of the assets for the ultimate beneficiaries, who have a remainderman interest. (Schwartz v Horn, 31 NY2d 275; Rich v Mottek, 11 NY2d 90; Tutunjian v Vetzigian, 299 NY 315; Rastetter v Hoenninger, 214 NY 66; Di Lorenzo v Ciancio, 49 AD2d 756.) II. Since the decedent’s wife did not receive an outright bequest of the decedent’s residuary estate, the acting Surrogate properly imposed a constructive trust upon the decedent’s entire estate to insure that upon the death of the wife the residuary estate passes to the relatives of the husband and wife in accordance with their reciprocal wills. (Tutunjian v Vetzigian, 299 NY 315; Di Lorenzo v Ciando, 49 AD2d 756.)

      Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P. C, Uniondale (John R. Morken, John J. Barnosky and Elizabeth W. Cohen of counsel), and Friedman & Friedman, Brooklyn (Louis L. Friedman of counsel), for respondent-appellant.
    I. The majority of the Court below erred in imposing a constructive trust on any portion of the decedent’s estate because the contract was not enforceable in the absence of a valid and binding will. (Collyer v Collyer, 110 NY 481; Matter of Fox, 9 NY2d 400; Matter of Staiger, 243 NY 468; Matter of McDonald, 40 NY2d 995; Matter of Kennedy, 167 NY 163; Matter of Passuello, 169 AD2d 1007; Rastetter v Hoenninger, 214 NY 66; Glass v Battista, 43 NY2d 620; Schwartz v Horn, 31 NY2d 275; Rubenstein v Mueller, 19 NY2d 228.) II. The contract is unenforceable as a matter of law because the decedent’s own revocation of his will constituted either a breach of the contract, a waiver of his rights under the contract, or a failure of consideration. (Hermann v Ludwig, 186 App Div 287; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Croker v New York Trust Co., 245 NY 17; Rosenblatt v Birnbaum, 20 AD2d 556, 16 NY2d 212; 3301-3303 Hempstead Turnpike Beauty Salon v Oresti Salons, 60 NY2d 843; Levy v Lacey, 22 NY2d 271; Collins Tuttle & Co. v Ausnit, 95 AD2d 668; Greenspan v Amsterdam, 145 AD2d 535; Royce v Rymkevitch, 29 AD2d 1029; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175.) III. A finding that the contract was not canceled is legally inconsistent with a finding that the decedent’s will, to which the contract was affixed, was revoked. (Matter of Schwartz, 94 Misc 2d 1024; Matter of Griffiths, 38 Misc 2d 87; Matter of Kennedy, 167 NY 163; Collyer v Collyer, 110 NY 481; Matter of Passuello, 169 AD2d 1007; Whalen v Stuart, 194 NY 495, 195 NY 524; Perry v Inter-County Sav. Bank, 97 AD2d 655, appeal dismissed, mot granted sub nom. Perry v Costa, 61 NY2d 756, affd sub nom. Perry v Inter-County Sav. Bank, 62 NY2d 630; Lippes v Atlantic Bank, 69 AD2d 127; Toner v Constable, 61 Misc 2d 586, 591; Pangburn v Buick Motor Co., 211 NY 228.) IV. Even were the contract enforceable, the imposition of a constructive trust on any portion of the decedent’s estate was error absent a showing that decedent’s widow has acted in such a way as to defeat the contract. (Blackman v Estate of Battcock, 78 NY2d 735, 79 NY2d 915; Margulis v Teichman, 125 Misc 2d 729; Schwartz v Horn, 31 NY2d 275; Tutunjian v Vetzigian, 299 NY 315; Wagner v Wagner, 58 AD2d 7.) V. Even were the contract enforceable, under no circumstances should a constructive trust apply to that portion of decedent’s estate which passes outright to his widow. (Blackman v Estate of Battcock, 78 NY2d 735; Schwartz v Horn, 31 NY2d 275.) VI. The Court below erred by failing to rule on the acting Surrogate’s denial of the widow’s constitutional right to a trial by jury on the issue of whether the contract was canceled. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Cooper v Morin, 49 NY2d 69, 801, 446 US 984; Matter of Luria, 63 Misc 2d 675; Strychalski v Mekus, 54 AD2d 1068; Custen v Robison, 180 App Div 384; Parsons v First Trust & Deposit Co., 243 App Div 681, 269 NY 630; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Lord Constr. Co. v Edison Portland Cement Co., 234 NY 411; RWP Group v Resnick, 166 AD2d 514; Gallagher’s Stud v Fishman, 156 AD2d 50.)
   OPINION OF THE COURT

Levine, J.

The decedent, Harry Alexander Cohen, and respondent Rae Cohen, an elderly, childless married couple, executed mutual wills on April 15, 1982. Each will established a trust for the life of the surviving spouse consisting of that portion of the testator’s estate "equal to the largest amount that can pass free of Federal estate tax by reason of the unified credit and the State death tax credit”, with the corpus to be distributed upon the surviving spouse’s death among named relatives of the decedent and Mrs. Cohen in specified percentages, resulting in an equal division of the trust property between the decedent’s family and Mrs. Cohen’s family. Each will devised the residue of the testator’s estate to the surviving spouse, absolutely.

At the time they executed their wills, the decedent and Mrs. Cohen also entered into a written agreement making each of their wills irrevocable except upon the consent of the other spouse. The agreement recited that the parties had simultaneously executed wills effectively bequeathing their respective estates one half to the decedent’s relatives and one half to Mrs. Cohen’s relatives, and that they intended the wills to be permanently reciprocal so that the will of the survivor could not be changed after the first of them died. The agreement specifically provided that neither party could revoke or alter that party’s will without the written assent of the other and that any such unassented to (by both parties) revocation or alteration would not be effective as against the legatees named in that will. In another provision, the Cohens agreed that any inter vivas gift to a legatee by the surviving spouse was to be deemed an advancement on the legacy of that donee under the survivor’s will and that "every legatee [named in their wills] is hereby made a third party beneficiary of this Agreement”.

Decedent died in December 1986, survived by Mrs. Cohen. She applied for and was issued letters of administration, based upon her sworn statement that she was unable to find a will of decedent despite diligent search and inquiry. Petitioner, a nephew of decedent and a legatee, coexecutor and cotrustee under the decedent’s April 1982 will, then brought a proceeding to revoke the letters of administration and to probate a conformed copy of the decedent’s April 1982 will as a lost will or, in the alternative, to enforce specific performance of the Cohens’ agreement executed with that will.

After trial of the outstanding factual issues, Surrogate’s Court found that petitioner’s evidence was insufficient to overcome the presumption of revocation by the testator that attaches to a lost will (see, SCPA 1407; Matter of Fox, 9 NY2d 400, 407-408). Accordingly, the court refused to admit to probate the conformed copy of decedent’s April 1982 will. The Surrogate, however, rejected on credibility grounds Mrs. Cohen’s proof that the agreement executed by her and the decedent with that will had also been revoked. The court, therefore, held that the agreement was binding on the decedent’s estate, and imposed a constructive trust on the entire estate, which had been received by Mrs. Cohen in intestacy, for the benefit of the legatees named in the decedent’s 1982 will.

On Mrs. Cohen’s appeal to the Appellate Division, the entire Court agreed with Surrogate’s Court’s denial of probate to the copy of the decedent’s April 1982 will because of petitioner’s failure to overcome the presumption of revocation (187 AD2d 584). A three-Justice majority upheld Surrogate’s Court’s determination that the contemporaneous agreement between the decedent and Mrs. Cohen had not been revoked, and was enforceable in equity through the imposition of a constructive trust. The Appellate Division’s majority ruled, however, that the constructive trust could only be imposed on that portion of the decedent’s estate that would not have passed outright to Mrs. Cohen under his April 1982 will, and modified the decree accordingly. The two dissenters, while agreeing with the majority that the presumption of revocation of the decedent’s lost April 1982 will had not been overcome, would have dismissed the petition and denied imposing a constructive trust on any portion of the decedent’s estate. The dissenters reasoned that enforcement of the Cohens’ agreement was dependent on the valid existence of the decedent’s April 1982 will; to rule otherwise "allows the proponent of the [lost] will to do indirectly what cannot be done directly” (id., at 587). The Appellate Division granted leave to appeal to Mrs. Cohen and to petitioner on the certified question of whether its order of modification was correctly made. We reverse and answer the certified question in the negative.

Surrogate’s Court found, and the Appellate Division affirmed unanimously, that petitioner’s proof did not overcome the presumption that the decedent had duly revoked the April 1982 will. That finding is not contested and is, therefore, conclusive on these cross appeals. In our view, that finding, in effect, that decedent had revoked his April 1982 will, precludes enforcement of the Cohens’ contemporaneous agreement through the imposition of a constructive trust on all or any portion of the decedent’s estate — which Mrs. Cohen took, not through the decedent’s will, but as his sole heir in intestacy.

In each of our cases relied upon by Surrogate’s Court and the majority at the Appellate Division, in which the court’s equity power was invoked to enforce an express or implied agreement to make mutual or joint wills irrevocable (see, Glass v Battista, 43 NY2d 620; Schwartz v Horn, 31 NY2d 275; Rich v Mottek, 11 NY2d 90; Tutunjian v Vetzigian, 299 NY 315; Rastetter v Hoenninger, 214 NY 66), the first party to die had performed the agreement by not revoking the joint or mutual will before death. The surviving party to the agreement, however, reneged by later executing a new will or making an inter vivas gift effectively nullifying a specific bequest of the will the parties made irrevocable.

The basis in each of our cases for enforcing the agreement against the surviving party or the survivor’s estate by the imposition of a constructive trust is clearly that equity will not permit the surviving party to accept the benefits of the performance of the agreement by the first decedent and then to breach the agreement by disposing of the parties’ estates in a manner inconsistent with their agreement. Thus, in Tutunjian v Vetzigian (supra) we expressed the underlying rationale as follows: "[T]o permit the one who survives to gain the benefits of the joint will and then to flout its provisions in violation of the promise made to the other 'would be a mockery of justice’. (Mutual Life Ins. Co. v. Holloday, 13 Abb. N. C. 16, 24.)” (299 NY, at 319 [emphasis supplied].) And we have invoked that principle from Tutunjian in our subsequent decisions on the subject (see, Schwartz v Horn, 31 NY2d, at 280, supra; Rich v Mottek, 11 NY2d, at 94, supra). Imposing a constructive trust to prevent the surviving party from gaining the benefits of the agreement with the first decedent and then breaching that agreement is essentially a particularized application of the more general rule which recognizes unjust enrichment as a necessary element of any cause of action for a constructive trust (see, Simonds v Simonds, 45 NY2d 233, 242; Sharp v Kosmalski, 40 NY2d 119, 123).

In the instant case, the findings of the courts below that decedent’s will had been revoked establish that Mrs. Cohen did not reap the benefits of the decedent’s performance of their agreement to make their mutual wills irrevocable. Indeed, Mrs. Cohen’s taking of the decedent’s entire estate was as a result of the revocation of a will that had been covered by their agreement. Consequently, the affirmed findings in this case cannot support the conclusion that Mrs. Cohen would be unjustly enriched by having unrestricted discretion to dispose of her and her husband’s estate. Hence, there is no basis here for invoking a court’s equity power to control such discretion.

Our conclusion that a constructive trust may not be imposed upon the estate Mrs. Cohen took by intestacy is unaffected by the designation in the Cohens’ agreement of petitioner and the other legatees named in their wills as third-party beneficiaries of that agreement. In their agreement, the Cohens each reserved the right to revoke his or her will with the assent of the other spouse. There is no claim here of any detrimental reliance upon the agreement by any legatee. At the latest, Mrs. Cohen effectively manifested her assent to the revocation of the decedent’s April 1982 will when she applied for letters of administration of his estate, and thereby precluded the third-party beneficiaries from asserting any vested rights under the Cohens’ agreement (see, Salesky v Hat Corp., 20 AD2d 114, 116-117; see also, Robson v Robson, 514 F Supp 99, 103-104, affd without opn 681 F2d 820; Restatement [Second] of Contracts § 311 [2]). We are not called upon to decide here what remedies either Mrs. Cohen or the legatees named in the decedent’s April 1982 will might have had in the event that Mrs. Cohen had not acceded to the revocation of her husband’s will.

Accordingly, the order of the Appellate Division should be reversed, the petition dismissed, and the certified question answered in the negative, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Ciparick concur; Judge Titone taking no part.

Order reversed, etc.


author: Chief Judge Kaye. Bellacosa, J.

text:
    [630 NE2d 626, 608 NYS2d 930]
    Rent Stabilization Association of New York City, Inc., et al., Appellants, and Small Property Owners of New York, Intervenor-Appellant, v Richard L. Higgins, as Commissioner of the New York State Division of Housing and Community Renewal, Respondent, and Robert Wells et al., Intervenors-Respondents.
    Argued November 16, 1993;
    decided December 21, 1993

      POINTS OF COUNSEL

      Belkin Burden Wenig & Goldman, New York City (Sherwin Belkin, Martin J. Heistein and Magda L. Cruz of counsel), for appellants.
    I. The new regulations cause an unconstitutional taking of private property without just compensation. (Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; United States v Causby, 328 US 256; Lucas v South Carolina Coastal Council, 505 US —, 112 S Ct 2886; Agins v Tiburon, 447 US 255; Yee v Escondido, 503 US —, 112 S Ct 1522; Nollan v California Coastal Commn., 483 US 825; Penn Cent. Transp. Co. v New York City, 438 US 104; Seawall Assocs. v City of New York, 74 NY2d 92, 493 US 976; Pennsylvania Coal Co. v Mahon, 260 US 393; Zuckerman v City of New York, 49 NY2d 557.) II. The Division of Housing and Community Renewal (DHCR) has violated the doctrine of separation of powers. (Youngstown Co. v Sawyer, 343 US 579; Nixon v Administrator of Gen. Servs., 433 US 425; Matter of Nicholas v Kahn, 47 NY2d 24; Under 21 v City of New York, 65 NY2d 344; Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Fullilove v Beame, 48 NY2d 376; Rapp v Carey, 44 NY2d 157; Matter of County of Oneida v Berle, 49 NY2d 515.) III. DHCR has exceeded the permissible scope of administrative rulemaking. (Matter of Hernandez v Blum, 61 NY2d 506; Two Assocs. v Brown, 127 AD2d 173; Matter of Faith for Today v Murdock, 11 AD2d 718, 9 NY2d 761; Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588; Connally v General Constr. Co., 269 US 385; Festa v Leshen, 145 AD2d 49; East Four-Forty Assocs. v Ewell, 138 Misc 2d 235; Boreali v Axelrod, 71 NY2d 1; Matter of Council for Owner Occupied Hous. v Abrams, 125 AD2d 10.) IV. The new regulations do not comport with Braschi v Stahl Assocs. Co. (74 NY2d 201). (Haroust Corp. v Yuen Chung Chin, 155 AD2d 317; Sullivan v Brevard Assocs., 66 NY2d 489; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Two Assocs. v Brown, 127 AD2d 173; Da Silva v Musso, 53 NY2d 543; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; East 10th St. Assocs. v Estate of Goldstein, 154 AD2d 142.) V. The new regulations fail to comply with the State Administrative Procedure Act. (Matter of Joyce v Ortiz, 116 AD2d 70; 19th St. Assocs. v State of New York, 79 NY2d 434; Two Assocs. v Brown, 127 AD2d 173.)

      Ronald D. Hariri & Associates, P. C., New York City (Ronald D. Hariri of counsel), for intervenor-appellant.
    I. The challenged regulations unconstitutionally confiscate private property without just compensation in violation of the Takings Clause of the Constitution. (Yee v Escondido, 503 US —, 112 S Ct 1522; Lucas v South Carolina Coastal Council, 505 US —, 112 S Ct 2886; FCC v Florida Power Corp., 480 US 245; Nollan v California Coastal Commn., 483 US 825; Fresh Pond Shopping Ctr. v Callahan, 464 US 875; Seawall Assocs. v City of New York, 74 NY2d 92, 493 US 976; Nixon v United States, 978 F2d 1269; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Kaiser Aetna v United States, 444 US 164.) II. The regulations impose the social burden of housing selected classes of persons on individual landlords; this violates the constitutional due process requirement that public burdens be borne by the public rather than by haphazardly selected individuals. (Monongahela Nav. Co. v United States, 148 US 312; Armstrong v United States, 364 US 40; French Investing Co. v City of New York, 39 NY2d 587.) III. The award of succession rights to unrelated roommates is contrary to express legislative intent. (Youngstown Co. v Sawyer, 343 US 579; Under 21 v City of New York, 65 NY2d 344; Festa v Leshen, 145 AD2d 49.) IV. The challenged regulations do not comport with Braschi v Stahl Assocs. Co. (74 NY2d 201) and East 10th St. Assocs. v Estate of Goldstein (154 AD2d 142).

      Cullen S. McVoy, Dennis J. Saffran, Daniel E. Konig, Bronx, and Robert Abrams, Attorney-General, New York City (Jerry Boone and Harvey M. Berman of counsel), for respondent.
    I. The regulations are consistent with due process and do not effect a taking of property. (Seawall Assocs. v City of New York, 74 NY2d 92, 493 US 976; Barbier v Connolly, 113 US 27; Keystone Bituminous Coal Assn. v DeBenedictis, 480 US 470; Pennsylvania Coal Co. v Mahon, 260 US 393; Armstrong v United States, 364 US 40; United States v Willow Riv. Co., 324 US 499; Connolly v Pension Benefit Guar. Corp., 475 US 211; Pennell v San Jose, 485 US 1; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Rent Stabilization Assn. v Higgins, 164 AD2d 283.) II. The regulations properly apply the principles set forth by this Court in Braschi v Stahl Assocs. Co. (74 NY2d 201). (East 10th St. Assocs. v Estate of Goldstein, 154 AD2d 142.) III. It is well settled that DHCR has broad authority to promulgate regulations. (Matter of Versailles

      Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Festa v Leshen, 145 AD2d 49; Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Sullivan v Brevard Assocs., 66 NY2d 489; 520 E. 81st St. Assocs. v Roughton-Hester, 157 AD2d 199.) IV. The regulations do not constitute an unlawful incursion into the legislative domain. (Boreali v Axelrod, 71 NY2d 1; Sullivan v Brevard Assocs., 66 NY2d 489; Fourth Lenox Terrace Assoc. v Hawkins, 131 Misc 2d 662; East Four-Forty Assocs. v Ewell, 138 Misc 2d 235; Under 21 v City of New York, 65 NY2d 344.) V. There is no infirmity in the regulations due to DHCR’s modification of their coresidency requirements. (Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Quiala v Laufer, 180 AD2d 31.) VI. The regulations are not "void for vagueness”. (United States v Mazurie, 419 US 544; State of New York v Rutkowski, 44 NY2d 989; Hoffman Estates v Flipside, Hoffman Estates, 455 US 489; Matter of Carl N, 91 Misc 2d 738; Jordan v De George, 341 US 223; Quintará Assocs. v New York State Liq. Auth., 57 AD2d 462; People v Mancuso, 255 NY 463.) VII. The regulations were promulgated in full compliance with the State Administrative Procedure Act.

      Paris R. Baldacci, New York City, Jean T. Schneider, Jane E. Booth, Sandra R. Farber, Ruth E. Harlow, Beatrice Dohrn, Martin L. Price, Brooklyn, Diane Lutwak, Frank J. Barbaro and Melissa Cook for intervenors-respondents.
    I. DHCR’s regulations protecting families from eviction during a housing shortage do not effect an unconstitutional taking without just compensation, (de St. Aubin v Flacke, 68 NY2d 66; Kalikow 78/79 Co. v State of New York, 174 AD2d 7; Seawall Assocs. v City of New York, 74 NY2d 92, 493 US 976; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Yee v Escondido, 503 US —, 112 S Ct 1522; Lucas v South Carolina Coastal Council, 505 US —, 112 S Ct 2886; Festa v Leshen, 145 AD2d 49; Lesser v Park 65 Realty Corp., 140 AD2d 169, 72 NY2d 1042; Cohen v Berger, 153 AD2d 920, 75 NY2d 809; 520 East 81st St. Assocs. v Lenox Hill Hosp., 157 AD2d 138, 77 NY2d 944.) II. DHCR’s regulations protecting families from eviction during a housing shortage are a proper and reasonable exercise of DHCR’s broad rule-making authority. (Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Ostrer v Schenck, 41 NY2d 782; Festa v Leshen, 145 AD2d 49; Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Matter of Tener v New York State Div. of Hous.

      & Community Renewal, 159 AD2d 270; Claridge Gardens v Menotti, 160 AD2d 544; West 22nd St. Assocs. v Thomas, 144 Misc 2d 292; State of New York v Rutkowski, 44 NY2d 989; United States v Mazurie, 419 US 544; Grayned v City of Rockford, 408 US 104.)

      O. Peter Sherwood, Corporation Counsel of New York City (Jane S. Earle and Leonard Koerner of counsel), for City of New York, amicus curiae.

    I. The promulgation of regulations preventing the eviction of family members living in rent-regulated housing who are able to demonstrate financial, social and emotional commitment to and interdependence with the tenant of record was a proper exercise of DHCR’s administrative power. (Boreali v Axelrod, 71 NY2d 1; Clark v Cuomo, 66 NY2d 185; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Levine v Whalen, 39 NY2d 510; Ostrer v Schenck, 41 NY2d 782; Festa v Leshen, 145 AD2d 49; Matter of Association of Commercial Prop. Owners v New York City Loft Bd., 118 AD2d 312, 71 NY2d 915; Lesser v Park 65 Realty Corp., 140 AD2d 169, 72 NY2d 1042; Sullivan v Brevard Assocs., 66 NY2d 489.) II. The challenged "succession rights” regulations effect neither a physical nor a regulatory taking of plaintiffs’ property. (Seawall Assocs. v City of New York, 74 NY2d 92, 493 US 976; Dawson v Higgins, 154 Misc 2d 811; Pennell v San Jose, 485 US 1; Benson Realty Corp. v Beame, 50 NY2d 994, appeal dismissed sub nom. Benson Realty Co. v Koch, 449 US 1119; Yee v Escondido, 503 US —, 112 S Ct 1522; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; Lucas v South Carolina Coastal Council, 505 US —, 112 S Ct 2886.)

      Rosenberg & Estis, P. C., New York City (Gary M. Rosenberg and Jeffrey Turkel of counsel), for Community Housing Improvement Program, Inc., amicus curiae.

    I. DHCR’s 1987 succession regulations are out of harmony with substantive provisions of the Omnibus Housing Act; as such, DHCR’s 1990 succession regulations are also unlawful. (Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Boreali v Axelrod, 71 NY2d 1; Ostrer v Schenck, 41 NY2d 782; Matter of Jones v Berman, 37 NY2d 42; Bus Depot Holding Corp. v Valentine, 288 NY 115; Shapiro v Dwelling Mgrs., 92 AD2d 52; Vance v Century Apts. Assocs., 93 AD2d 701; Hudson View Props. v Weiss, 59 NY2d 733.) II. DHCR’s succession regulatians were promulgated in excess of the legislature’s extraordinary restrictions on DHCR’s rule-making authority. (Matter of Parkchester Mgt. Corp. v Rent Stabilization Assn., 56 AD2d 402, 44 NY2d 778; Mayer v City Rent Agency, 46 NY2d 139; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Matter of Capital Cities Communications v State Tax Commn., 65 AD2d 25; Grich v Wood & Hyde Leather Co., 74 AD2d 183; East Four-Forty Assocs. v Ewell, 138 Misc 2d 235; Festa v Leshen, 145 AD2d 49.) III. The court below’s determination was predicated on the rationale in its earlier determination in Festa v Leshen (145 AD2d 49); Festa was erroneously decided. (Braschi v Stahl Assocs. Co., 74 NY2d 201; East Four-Forty Assocs. v Ewell, 138 Misc 2d 235.)

      Kleo J. King, Jackson Heights, Jody Leight, Valerie Bogart, Nancy Morawetz, New York City, and Abby Abinante, of the California Bar, admitted pro hac vice, for Eastern Paralyzed Veterans Association and others, amici curiae.

    DHCR acted well within its discretion in revising its regulations to reflect the realities of family life. (Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325; Braschi v Stahl Assocs. Co., 74 NY2d 201.)

      Ronald A. Zumbrun, James S. Burling and R. S. Radford, of the California Bar, admitted pro hac vice, and Klein & Keenan, Yonkers (Carol S. Keenan of counsel), for Pacific Legal Foundation, amicus curiae.

    The succession regulation extinguishes a valuable property interest protected by the Takings Clause. (Chicago, Burlington R. R. v Chicago, 166 US 226; United States v General Motors Corp., 323 US 373; United States v Causby, 328 US 256; United States v Virginia Elec. Co., 365 US 624; Hodel v Irving, 481 US 704; Kaiser Aetna v United States, 444 US 164; 520 E. 81st St. Assocs. v Lenox Hill Hosp., 157 AD2d 138, 77 NY2d 944; Nollan v California Coastal Commn., 483 US 825; Monongahela Nav. Co. v United States, 148 US 312; Penn Cent. Transp. Co. v New York City, 438 US 104.)

      Carb, Luria, Glassner, Cook & Kufeld, New York City (Sydney A. Luria, Stephen J. Fallís and James E. Schwartz of counsel), for The Real Estate Board of New York, amicus curiae.

    DHCR’s succession regulations lack legitimate basis or authority and are therefore invalid. (Braschi v Stahl Assocs. Co., 74 NY2d 201; Sullivan v Brevard Assocs., 66 NY2d 489; Tagert v 211 E. 70th St. Co., 63 NY2d 818; Matter of Belmont

      E. Co. v Abrams, 123 Misc 2d 404; 25 W. 13th St. Corp. v Gerevitz, 128 Misc 2d 74; Clark v Lake Shore & Mich. S. Ry. Co., 94 NY 217; Erie R. R. Co. v Tompkins, 304 US 64; Matter of Walker v Furst, 64 Misc 2d 186, 35 AD2d 727, 27 NY2d 801; Robinson v Jewett, 116 NY 40; Mobil Oil Corp. v Rubenfeld, 48 AD2d 428, 40 NY2d 936.)

      Himmelstein, McConnell & Gribben, New York City (William Gribben, Kevin R. McConnell and Samuel J. Himmelstein of counsel), for New York State Tenant and Neighborhood Coalition Inc. and others, amici curiae. I.
    DHCR’s permanent regulations are consistent with the 46-year-old policy of the legislature and the courts to prevent the eviction of occupants, who along with the named tenant, comprise a family. (Braschi v Stahl Assocs. Co., 74 NY2d 201; East 10th St. Assocs. v Estate of Goldstein, 154 AD2d 142; Rent Stabilization Assn. v Higgins, 164 AD2d 283; Matter of Park E. Land Corp. v Finkelstein, 299 NY 70; Matter of Goodman v Ross, 274 App Div 811; Matter of Waltzman v McGoldrick, 20 Misc 2d 1085; Matter of Brighton Sixth St. Corp. v Finkelstein, 193 Misc 785; Festa v Leshen, 145 AD2d 49; Sullivan v Brevard Assocs., 66 NY2d 489; Two Assocs. v Brown, 127 AD2d 173, 70 NY2d 792.) II. DHCR’s regulations will protect the poor, the elderly and the disabled from the tragedy of eviction.
   OPINION OF THE COURT

Chief Judge Kaye.

Essentially two challenges are mounted by appellant property owners to regulations promulgated by respondent Division of Housing and Community Renewal (DHCR) enlarging the class of "family members” entitled to succeed to a rent-regulated apartment on the death or departure of the tenant of record. As did the Appellate Division, we conclude first that the regulations are within the agency’s rule-making authority, and second that no unconstitutional "taking” was effected.

I.

We begin with the background of the challenged regulations. In response to what was found to be a severe housing shortage following World War II, the legislature enacted laws providing for rent control and, later, rent stabilization. Perceiving that continuing need throughout the ensuing decades, the legislature has periodically extended rent regulation to the present day, most recently providing for deregulation only of apartments with monthly rents in excess of $2,000 (see, Rent Regulation Reform Act of 1993, L 1993, ch 253 [extending rent control and rent stabilization until June 15, 1997]).

The legislature in 1983 designated DHCR "the sole administrative agency to administer the regulation of residential rents” under the rent control and rent stabilization statutes (Omnibus Housing Act, L 1983, ch 403, § 3), and in 1985 additionally granted DHCR authority to amend the Rent Stabilization Code (a body of regulations previously administered by a private association of property owners) (see, L 1985, ch 888, § 2).

The rent control statutes accorded noneviction protection to a "tenant,” meaning that the tenant had the right to remain after expiration of the original tenancy (see, McKinney’s Uncons Laws of NY § 8585 [1] [Emergency Housing Rent Control Law § 5 (1)] [1946]; Administrative Code § 26-408 [a], formerly § Y51-6.0 [1962]). In the event of the tenant’s death, the rent control regulations promulgated under the statutes additionally prohibited eviction of the surviving spouse or a family member who had been living with the tenant (see, 9 NYCRR 2104.6 [d] [1964]; 2204.6 [d] [1984]). That protection was later extended to family members living with a tenant who voluntarily vacated the apartment (see, Matter of Herzog v Joy, 74 AD2d 372, 376, affd 53 NY2d 821).

The rent stabilization statute required that a renewal lease be offered to a "tenant” (see, Administrative Code former § YY51-6.0 [c] [4] [1969]), but nothing in the regulations elaborated upon the statutory language. Thus, unlike rent control, under rent stabilization only the tenant of record was entitled to a renewal lease (see, Sullivan v Brevard Assocs., 66 NY2d 489, 493). In 1987, however, DHCR amended the rent stabilization regulations to provide noneviction protection to "family member[s],” a term defined in the Code to include 24 specified blood-or-marriage relationships (see, 9 NYCRR 2520.6 [o] [1987]). Where the tenant of record died, family members who had resided in the unit for at least two years (one year if the tenant was elderly or disabled) were entitled to succeed to the tenancy; where the tenant of record voluntarily vacated the apartment, family members who had resided in the unit from the inception of the tenancy or commencement of the relationship were entitled to succeed to the tenancy (see, 9 NYCRR 2523.5 [b] [1987]).

DHCR’s amendments to the Rent Stabilization Code were sustained by the Appellate Division as an appropriate exercise of the agency’s authority (see, Festa v Leshen, 145 AD2d 49) and are not challenged on the present appeal.

This Court in 1989 determined that "family member” as used in the rent control regulations included the life partner of a deceased tenant who had resided with the tenant for many years in a familial-type relationship (see, Braschi v Stahl Assocs. Co., 74 NY2d 201, 211; see also, East 10th St. Assocs. v Estate of Goldstein, 154 AD2d 142 [extending holding in Braschi to rent stabilization regulations]). Months later, DHCR promulgated the regulations at issue on this appeal.

II.

The regulations were first issued by DHCR on November 8, 1989 as emergency regulations extending noneviction protection to qualified family members of a tenant of record in all rent-regulated housing where the tenant vacated the unit. The regulations were made permanent on March 20, 1990 after public hearings and became effective April 4, 1990.

The regulations enlarged the definition of "family member,” beyond blood or marriage, to include:

"Any other person residing with the tenant or permanent tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment, and interdependence between such person and the tenant or permanent tenant. Although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed, may include, without limitation, such factors as listed below. In no event would evidence of a sexual relationship between such persons be required or considered.”

The specified relevant factors are (i) longevity of the relationship; (ii) whether the parties share household expenses; (iii) intermingling of finances; (iv) whether they engage in family-type activities; (v) whether they have formalized legal obligations toward each other; (vi) whether they hold themselves out as family members; (vii) whether they regularly perform family functions; and (viii) any other pattern of behavior that evidences an intention to create a long-term, emotionally committed relationship. The amendments extend noneviction protection uniformly to family members whether the tenant dies or vacates voluntarily, so long as the family member has resided in the apartment for two years (one year where the tenant is elderly or disabled), or has resided with the tenant from the inception of the tenancy or the commencement of the relationship.

As the grounds for its action, DHCR specified New York’s chronic low rental vacancy rate for affordable units, increasing homelessness and poverty, the AIDS epidemic and the rise in nontraditional families (including same-sex couples, de facto marriages, single parent households and other living arrangements no longer exceptional). The regulations, according to DHCR, were "intended to clarify a non-traditional family member’s right to remain in his or her home, particularly at a time when a significant percentage of these households may be vulnerable to the AIDS epidemic.” In extending the protection to all qualified family members regardless of the reason for the tenant’s permanent departure, DHCR claimed that it redressed a situation that in its experience had led to illogical and unjust results.

In releasing the regulations, DHCR stated that New York’s crisis in affordable housing posed an immediate threat requiring emergency regulations because, with tenants dying or vacating apartments daily, landlords and remaining occupants needed guidance and some measure of consistency in determining who would be permitted to remain in rent-regulated housing and who could be evicted. In assessing the added burden on property owners, DHCR concluded that the average building’s rent rolls would be reduced by .045% due to fewer regulated apartments subject to a vacancy increase in any given year. DHCR further found the effect of the regulations directly proportional to the number of units owned, thus concluding that small property owners would not be disproportionately affected. Finally, DHCR noted that an owner’s right to collect the regulated rent and evict undesirable tenants would be unaffected by the new regulations.

Appellants sought a preliminary injunction and a declaration that the new regulations were unconstitutional and invalid, and Supreme Court temporarily restrained their implementation; the Appellate Division, however, deeming the TRO a preliminary injunction, reversed and vacated the restraint (164 AD2d 283). After Supreme Court granted respondents’ cross motions for a declaration that the regulations were within the proper exercise of DHCR’s authority, appellants sought a direct appeal to this Court, which we transferred to the Appellate Division on the ground that questions other than the constitutional validity of a statute were involved (see, CPLR 5601 [b] [2]). The Appellate Division upheld the regulations as a valid exercise of DHCR’s authority for the reasons set forth in its opinion vacating the preliminary injunction, adding that the regulations substantially advance a legitimate governmental interest under the most recent United States Supreme Court opinions addressing regulatory takings (see, Lucas v South Carolina Coastal Council, 505 US —, 112 S Ct 2886; Fee v Escondido, 503 US —, 112 S Ct 1522). Because a substantial constitutional question is directly presented, appeal to this Court lies as of right (see, CPLR 5601 [b] [1]).

III.

We first address appellants’ assertion that DHCR was without authority to adopt the challenged regulations.

Appellants recognize that the legislature has provided DHCR a broad mandate to promulgate regulations in furtherance of the rent control and rent stabilization laws that will " 'inevitably require some changes in the legal relationship between landlords and tenants’ ” (see, Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325, 328-329, rearg denied 76 NY2d 890), and indeed do not challenge earlier regulations providing for family succession to rent-regulated housing. They urge, however, that with the most recent regulations, DHCR has overstepped its mandate and invaded the province of the legislature, in violation of the constitutional separation of powers.

As an arm of the executive branch of government, an administrative agency may not, in the exercise of rule-making authority, engage in broad-based public policy determinations (see, Boreali v Axelrod, 71 NY2d 1, 9). In Boreali, we concluded that the difficult-to-demarcate line between administrative rulemaking and legislative policymaking had been transgressed, and invalidated regulations promulgated by the Public Health Council prohibiting indoor smoking in specified public areas on the ground that the regulatory scheme was improperly based upon policy considerations originating with the agency and not the legislature. We identified four "coalescing circumstances” indicating that the agency, in enacting the regulations, had usurped the role of the legislature in making public policy assessments.

First, the agency created exemptions from the smoking ban for particular indoor areas, such as trade shows, conventions and bars, or upon a showing of financial hardship, from which we concluded that the agency had improperly weighed competing health and public policy concerns. Exempting certain indoor areas from these regulations required consideration not of health concerns — the agency’s proper focus — but of competing social and political issues. Second, the agency enacted the smoking ban on a clean slate, exceeding its proper role of merely filling the interstices of a legislative mandate. Third, the legislature itself had repeatedly failed to reach agreement on indoor smoking, suggesting that the subject was one that required resolution of competing policy interests. Finally, the regulatory scheme — "a simple code describing the locales in which smoking would be prohibited and providing exemptions for various special interest groups” — did not require the agency’s particular competence in the field of public health (71 NY2d, at 14).

Such circumstances are not present in this case. Rather, in defining the persons to be afforded noneviction protection in an ongoing housing crisis, DHCR has acted within its competence and authority (see, Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186, 191-192; Matter of Nicholas v Kahn, 47 NY2d 24, 31).

Most significantly, DHCR has not acted on a clean slate— noneviction protection in rent-regulated housing was first created by the legislature in the rent control and rent stabilization laws (see, McKinney’s Uncons Laws of NY § 8585 [1] [Emergency Housing Rent Control Law § 5 (1)]; Administrative Code § 26-408 [a]; § 26-511 [c] [4]). This protection has in the past been enlarged by the agency, after which the legislature has voted to extend rent regulation without modifying those provisions.

The challenged regulations " 'fill in the interstices’ ” of the legislative mandate (see, Versailles Realty, 76 NY2d, at 329) by redefining the protected class of people to include those who, in DHCR’s experience as sole administrator of residential rent regulation and adjudicator of eviction disputes, are most in need of protection against loss of their homes in a continuing housing emergency. Adjustment of the existing scheme in light of the agency’s technical competence is well within the proper rule-making function of this agency. Moreover, unlike the Public Health Council in Boreali, DHCR has not enacted categorical exemptions reflecting accommodations to special interest groups.

Finally, although appellants point to 27 bills introduced in the legislature between 1986 and 1989 relating to succession rights, the legislature has not sought to alter succession rights in the years following DHCR’s emergency and later permanent regulations (see also, Festa, 145 AD2d, at 63). Of particular significance is the fact that the legislature this year made substantial reforms in rent regulation, including deregulation of luxury units, without addressing noneviction protection (see, Rent Regulation Reform Act of 1993, L 1993, ch 253). We cannot agree with appellants that, in these circumstances, the failed bills alone warrant the conclusion that the agency has exceeded its mandate (see also, Boreali, 71 NY2d, at 11).

Thus, we reject appellants’ contention that DHCR acted beyond its authority.

IV.

Appellants next urge that the challenged regulations are unconstitutional on their face because, without just compensation, they require owners of rent-regulated housing to suffer a permanent physical occupation of their property; deprive them of the beneficial use of their property; and fail to substantially advance a legitimate governmental objective (see, NY Const, art I, § 7 [a]; US Const 5th Amend).

This appeal does not put before us the question whether rent regulation itself constitutes a taking — a question that has excited recent scholarly interest (see, e.g., Radford, Regulatory Takings Law in the 1990’s: The Death of Rent Control?, 21 Sw U L Rev 1019 [1992]; Note, Bright Lines in the Big City: Seawall, Tenant Succession Rights, and the Jurisprudence of Takings, 91 Colum L Rev 609 [1991]; but see, Pennell v San Jose, 485 US 1, 12, n 6; Block v Hirsh, 256 US 135, 156; Loab Estates v Druhe, 300 NY 176, 180). Appellants challenge only the recent family-succession amendments to the rent control and rent stabilization regulations. We note, further, that in this facial challenge, appellants bear the heavy burden of overcoming the presumption of constitutionality that attaches to the challenged enactments (see, e.g., de St. Aubin v Flacke, 68 NY2d 66, 76; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 440). Appellants have failed to sustain that burden.

A. Physical Occupation

Governmental action that compels an owner to endure a permanent physical occupation of its property effects an unconstitutional taking per se (see, Yee, 503 US, at —, 112 S Ct, at 1526; Loretto, 458 US, at 434-435). Appellants claim that they are forced by the new regulations to accept strangers as tenants and that these tenancies, no longer restricted to blood- or-marriage relatives of the original tenant, will exist in perpetuity. Because the coresidency requirement in the case of a tenant who voluntarily vacates has been reduced to the shorter of two years (one year in the case of elderly or disabled tenants) or the inception of the tenancy or commencement of the relationship, appellants further complain that the new regulations make it easier to qualify for protection.

At the outset, we are unpersuaded by the argument that the new regulations have created perpetual tenancies. An owner’s right to evict an unsatisfactory tenant or convert rent-regulated property to other uses remains unaffected (see, 9 NYCRR parts 2104, 2204, 2504, 2524; Yee, 503 US, at —, 112 S Ct, at 1528-1529). That a rent-regulated tenancy might itself be of indefinite duration — as has long been the case under rent control and rent stabilization — does not, without more, render it a permanent physical occupation of property (see, Manheim, Tenant Eviction Protection and the Takings Clause, 1989 Wis L Rev 925, 991-993 [1989]).

Nor does the fact that an owner must offer a renewal lease to a departed tenant’s newly defined family member — potentially a stranger to the owner — give rise to such a physical occupation (see, Yee, 503 US, at —, 112 S Ct, at 1528). In Seawall Assocs. v City of New York (74 NY2d 92, 105, cert denied 493 US 976), we held that Local Law No. 9 of 1987, which required owners of single room occupancy housing accommodations to rehabilitate and rent out their units, forcing them "to subject their properties to a use which they neither planned nor desired,” constituted a physical taking per se. By contrast, in Yee, the Supreme Court held that requiring owners of mobile home parks to rent the "pad” beneath a mobile home at controlled rents to any purchaser of the mobile home did not constitute a physical occupation because the owners had "voluntarily open[ed] their property to occupation by others” and thus could not "assert a per se right to compensation based on their inability to exclude particular individuals” (Yee, 503 US, at —, 112 S Ct, at 1530).

The difference — dispositive here — between requiring an owner to accept a purported stranger as a tenant and compelling the owner to rent out single room occupancy accommodations is in the owner’s voluntary acquiescence in the use of its property for rental housing (see, Yee, 503 US, at —, 112 S Ct, at 1531; Federal Communications Commn. v Florida Power Corp., 480 US 245, 252-253; see also, Seawall, 74 NY2d, at 105). As we noted in Seawall, "[i]t is the forced occupation^] * * * not the identities of the new tenants or the terms of the leases, which deprives the owners of their possessory interests and results in physical takings” (Seawall, 74 NY2d, at 106). Indeed, once a property owner decides to rent to tenants, the antidiscrimination laws eliminate an owner’s unfettered discretion in rejecting tenants (see, Yee, 503 US, at —, 112 S Ct, at 1530; see also, Atlanta Motel v United States, 379 US 241; Manheim, Tenant Eviction Protection and the Takings Clause, 1989 Wis L Rev 925, 997-998).

In any event, a "family member” for noneviction purposes, applying all of the criteria established by DHCR, is no more likely to be a stranger to the owner than a family member as formerly defined. This is so because, under either definition, the family member entitled to noneviction protection must have occupied the apartment with the tenant of record in a long-term, committed relationship (to be determined on a case-by-case basis in accordance with the specified criteria). In fact, the challenged regulations additionally permit the owner to request, when offering a renewal lease, the names of all co-occupants and whether they qualify as family members (9 NYCRR 2104.6 [d] [2]; 2204.6 [d] [2]; 2503.5 [e]; 2523.5 [e]).

Because the challenged regulations may require the owner-lessor to accept a new occupant but not a new use of its rent-regulated property, we conclude that appellants have failed to establish their claim that, facially, a permanent physical occupation of appellants’ property has been effected.

B. Regulatory Taking

As an alternative facial challenge, appellants urge that the regulations effect an impermissible regulatory taking, which occurs when governmental action forces some people alone to bear burdens that, in fairness, ought to be borne by society at large (see, Seawall, 74 NY2d, at 107). Regulation of private property constitutes an unconstitutional taking if it denies an owner economically viable use of the property (a per se regulatory taking), or if it does not substantially advance legitimate State interests (Seawall, 74 NY2d, at 107; Lucas, 505 US, at —, 112 S Ct, at 2893; Nollan v California Coastal Comma., 483 US 825, 834).

Appellants claim, first, that the new regulations deprive them of both the benefit of rental increases that occur upon vacancy and the reversionary interest in their property. However, a regulation effects a per se regulatory taking only in the relatively rare situation where "the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave [the] property economically idle” (Lucas, 505 US, at —, 112 S Ct, at 2895). Here, the regulations do not affect the owner’s right to receive the regulated rents, unchallenged as a reasonable return. Moreover, because the tenancies are not perpetual (as discussed above), the owners are not deprived of their reversionary interest (compare, 520 E. 81st St. Assocs. v Lenox Hill Hosp., 157 AD2d 138, 150, revd on other grounds 77 NY2d 944). We thus conclude that the owners have not met their burden of showing the requisite deprivation of economically beneficial use of their property (see, Lucas, 505 US, at —, n 6, 112 S Ct, at 2893, n 6).

Alternatively, appellants maintain that DHCR has failed to demonstrate the challenged regulations substantially advance the concededly legitimate governmental objectives of prevention of unwarranted evictions and alleviation of homelessness (see, Seawall, 74 NY2d, at 111). The absence of a close causal nexus between a regulated use of the property and the problem sought to be ameliorated may invalidate a regulation (see, Nollan, 483 US, at 837). The owners insist that rent regulation perpetuates rather than alleviates the housing shortage in New York, citing evidence that, faced with a lower over-all return from a building, owners will invest less in repairs, hastening the building’s deterioration.

The question before us, however, is not the general wisdom or desirability of present rent regulation (the statutes and regulations combined) to address the State’s housing situation — that is a question for the legislature. Rather, the question we decide is whether there is a close causal nexus between the challenged regulations and the stated purpose of preventing the eviction and resulting vulnerability to homelessness of the identified beneficiaries (see, Nollan, 483 US, at 837; Seawall, 74 NY2d, at 112). We agree with the Appellate Division that there is.

People who would, absent the regulations, be threatened with eviction from their homes may now have the right to remain. In Seawall, on the other hand, forcing owners to let single room occupancy accommodations did not substantially advance the City’s interest in alleviating homelessness because those units would not necessarily have been rented to homeless or potentially homeless persons (Seawall, 74 NY2d, at 111, 112, n 11). The designation of classes of individuals to whom DHCR has extended noneviction protection — persons deemed by the agency to be threatened with loss of their homes, and therefore in need of such protection — is a matter that falls within the agency’s expertise (see, Matter of Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35, 40-41).

Thus, we conclude that no unconstitutional taking has been demonstrated.

V.

Appellants’ miscellaneous points are without merit. DHCR has complied with the State Administrative Procedure Act: appellants do not dispute that DHCR filed the proposed regulations with the Secretary of State, submitted a notice of adoption for publication in the State Register, issued appropriate regulatory impact statements and other analyses and held a public hearing (see, State Administrative Procedure Act §§202, 202-a). Nor do we agree that the regulations are impermissibly vague. The factors to be considered in determining the existence of a qualifying relationship are objective, detailed and specific, and provide ample guidance in identifying the commencement of the relationship despite the absence of a marriage certificate or other legal document. Appellants’ remaining contentions are without merit.

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

Bellacosa, J.

(concurring). Chief Judge Kaye’s opinion of the Court cogently distinguishes respondents’ regulations, challenged on this record, from the respective constitutional limitations on governmental actions found to have been violated in Boreali v Axelrod (71 NY2d 1) and Seawall Assocs. v City of New York (74 NY2d 92, cert denied 493 US 976). I therefore concur and join fully in her opinion. Because I perceive significant practical and governance concerns that merit close attention as an outgrowth of this decision, I add these observations.

In the distribution and delegation of governmental powers, it is quite momentous that any administrative agency should possess the potent public policy power to extend the durational and relational sweep of the plurality rationale of Braschi v Stahl Assocs. Co. (74 NY2d 201), including fully into the rent stabilization category and more widely than was allowed even in the rent control field of that case. The case-by-case application of this judicially approved regulatory initiative adds layers of great sensitivity and breadth to the implementation of this case. However high-purposed, well-intentioned and possessed of special expertise respondents’ agency is, the societal equation is delicately weighted with practical, legal and fiscal consequences on all sides. Thus, while I also agree with the Chief Judge’s acknowledgement of the primacy of legislative choices in the field (majority opn, at 174), I believe it useful to go farther and urge the Legislature to carefully assess the sweeping power it impliedly invested in this administrative agency in the execution of a unique human sheltering mission.

In a similar cautionary frame of thought with respect to ensuing judicial branch responsibilities, I also believe that as-applied controversies under the challenged regulations, in contradistinction to the facial challenge of this case, will be profound (Seawall Assocs. v City of New York, 74 NY2d 92, supra). Diminution of alienation and value of affected properties, examined under an as-applied microscope, are bound to seriously affect many people, landlords and tenants alike, and the availability of sufficient, appropriate and affordable dwelling places. It would seem that as-applied challenges will inevitably compel courts to examine tenancy sequences in potentially long and somewhat indefinite time lines and relationships. This will be complicated by the substantial administrative, quasi-adjudicative tasks necessarily implicated. It is virtually certain that long, successive successorships to rent-stabilized leaseholds will not be just theoretical possibilities because, markets being markets, they are likely to bloom as perennials, becoming functionally transformed into perpetual stakeholds. The Legislature should satisfy itself, as the courts will have to, that unwarranted de facto results from administrative quasi-judicial determinations do not constitute the functional equivalent of divestitures from landowners of reversionary rights to their properties without just compensation and due process.

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

Order affirmed, with costs.

      . See, Emergency Housing Rent Control Law (L 1946, ch 274, as amended [rent control outside New York City]); Local Emergency Housing Rent Control Act (L 1962, ch 21, as amended [rent control within New York City]); City Rent and Rehabilitation Law (Administrative Code of City of NY § 26-401 et seq. [rent control within New York City]); Rent Stabilization Law (Administrative Codé §§ 26-501 to 26-520, as amended [1969] [rent stabilization within New York City]); and Emergency Tenant Protection Act (L 1974, ch 576, § 4, as amended [rent stabilization outside New York City]).

      . See, Rent and Eviction Regulations (9 NYCRR 2104.6 [d] [3] [i] [rent control outside New York City]; 2204.6 [d] [3] [i] [rent control within New York City]); Emergency Tenant Protection Regulations (9 NYCRR 2500.2 [n]; 2503.5 [d] [rent stabilization outside New York City]); Rent Stabilization Code (9 NYCRR 2520.6 [o] [2]; 2523.5 [b] [rent stabilization within New York City]).

      . See, McKinney’s Uncons Laws of NY § 8584 (4) (a) (Emergency Housing Rent Control Law § 4 [4] [a]) (DHCR empowered to "adopt, promulgate, amend or rescind such rules, regulations and orders as it may deem necessary or proper to effectuate the purposes of’ rent control); Administrative Code §26-405 (g) (1) (same); McKinney’s Uncons Laws of NY § 8630 (Emergency Tenant Protection Act § 10) (DHCR authorized to implement "appropriate” rent stabilization regulations); Administrative Code § 26-511 (c) (1) (DHCR authorized to amend Rent Stabilization Code to "protect[ ] tenants and the public interest”).

      . As we noted in Seawall (74 NY2d, at 107, n 6), examination of the owners’ " 'reasonable investment backed expectations’ ” (see, Lucas, 505 US, at —, n 8, 112 S Ct, at 2895, n 8; Penn Cent. Transp. Co. v New York City, 438 US 104, 124) is not relevant to a facial challenge involving a per se regulatory taking. Were we to examine appellants’ expectations in assessing their broader facial challenge, we would conclude in any event that frustration of their asserted "expectation” — that the class of persons entitled to noneviction protection would not be enlarged — is insufficient to satisfy their burden in establishing a taking (see, Penn Cent., 438 US, at 136; see also, Manheim, Tenant Eviction Protection and the Takings Clause, 1989 Wis L Rev 925, 971).


text:
    [630 NE2d 636, 608 NYS2d 940]
    In the Matter of Suffolk County Department of Social Services, on Behalf of Michael V. and Another, Children Alleged to be Abused or Neglected, Respondent, v James M., Appellant.
    Argued January 6, 1994;
    decided February 15, 1994

      POINTS OF COUNSEL

      McNamee, Lochner, Titus & Williams, Albany (David J. Wukitsch of counsel), for appellant.
    I. The order of the Court below should be reversed because Family Court committed reversible error in issuing a dispositional order without first holding a hearing. (Matter of John S., 175 AD2d 207; Commissioner of Social Servs. of City of N. Y. [In re Delon S.], 149 AD2d 349; Matter of Marsha B. F., 110 AD2d 549; Matter of John G., 89 AD2d 704; Matter of Debbie W., 81 AD2d 642; Matter of Toni ”WW”, 52 AD2d 108; Matter of Fisher, 79 Misc 2d 905; Matter of Faith AA., 139 AD2d 22; Ponsrok v City of Yonkers, 254 NY 91; Matter of Blaine, 54 Misc 2d 248.) II. Family Court erred in awarding summary judgment to the Department of Social Services on the issue of whether appellant’s stepchildren were abused and/or neglected. (Matter of Princess CC., 120 AD2d 917; Gilberg v Barbieri, 53 NY2d 285; Kaufman v Lilly & Co., 65 NY2d 449; Matter of Rosie B., 154 AD2d 900; Matter of Denise J., 133 AD2d 687.)

      Robert J. Cimino, County Attorney of Suffolk County, Central Islip (Jeffrey A. Adolph of counsel), for respondent.
    I. Family Court’s decision to issue an order of protection without conducting a dispositional hearing was appropriate under the special circumstances of this case. (Matter of Nassau County Dept. of Social Servs. [Kimberly S.] v Denise S., 173 AD2d 830; Matter of Erin G., 139 AD2d 737; Matter of Jesse S., 152 AD2d 581; Matter of Shaune L., 150 AD2d 689.) II. Summary judgment was appropriate upon the criminal conviction of appellant. (S. T. Grand, Inc. v City of New York, 32 NY2d 300; Matter of Lambert, 119 Misc 2d 326; Matter of Rosie B., 154 AD2d 900, 75 NY2d 702; Matter of Denise J., 133 AD2d 687; Matter of Princess CC., 120 AD2d 917; People v Morrison, 188 AD2d 557, 81 NY2d 844; Matter of Rasheda S., 183 AD2d 770; Matter of Jason B., 117 Misc2d 480; Matter of Kenya G., 74 Misc 2d 606; Matter of C. Children, 183 AD2d 767.)

      Anthony DiSanti, Law Guardian, Central Islip, and Robert C. Mitchell for Michael V. and another.
    I. The order of the Court below should not be reversed because summary judgment was appropriate upon the criminal conviction of appellant. (People v Morrison, 188 AD2d 557, 81 NY2d 844; S. T. Grand, Inc. v City of New York, 32 NY2d 300; Matter of Lambert, 119 Misc 2d 326; Matter of Rasheda S., 183 AD2d 770; Matter of Jason, B., 117 Misc 2d 480.) II. The order of the Court below should be reversed because Family Court committed reversible error in issuing a dispositional order without first conducting a hearing. Matter of Nassau County Dept. of Social Servs. [Kimberly S.J v Denise S., 173 AD2d 830; Matter of Marsha B. F., 110 AD2d 549; Matter of John S., 175 AD2d 207.)
   OPINION OF THE COURT

Levine, J.

In proceedings pursuant to Family Court Act article 10, Nicholas V., born July 14, 1979, was adjudicated an abused child and Michael V., born October 6, 1980, was adjudicated a neglected child. In each instance, the adjudication was based upon Family Court’s grant of the motion for summary judgment of the petitioner Suffolk County Department of Social Services, in which the court determined that appellant, stepfather of the two children, had sexually abused Nicholas.

The motion for summary judgment was supported by documentary evidence that appellant had been convicted in Suffolk County Court after trial of 15 counts of sodomy in the first degree committed against Nicholas. Without holding a dispositional hearing, Family Court entered a dispositional order of protection (see, Family Ct Act § 1052 [a] [iv]) directing appellant to have no contact whatsoever with the children, including no telephone contact and no written communication of any kind. The order of protection provided that it was to remain in effect until each child attained his eighteenth birthday, the maximum period statutorily authorized (see, Family Ct Act § 1056 [4]).

The Appellate Division affirmed in all respects (188 AD2d 603). It ruled that Family Court, in granting summary judgment, properly applied appellant’s criminal conviction as "conclusive proof’ of sexual abuse of Nicholas, and that this in turn supported the finding that Michael V. was a neglected child. Largely because of appellant’s sentence to a term of imprisonment the minimum of which extended beyond the children’s respective minorities, the Appellate Division further held that a dispositional hearing would have been superfluous and, therefore, no reversible error was committed by Family Court in rendering its dispositional order, without a hearing.

Upon appeal pursuant to leave granted by this Court, appellant initially argues that Family Court should not have granted summary judgment adjudicating Nicholas an abused child and Michael a neglected child. We disagree. Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, the Act does provide that, in such cases, "the provisions of the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved” (Family Ct Act § 165 [a]). Summary judgment, of course, may only be granted in any proceeding when it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Summary judgment "does not deny the parties a trial; it merely ascertains that there is nothing to try” (Siegel, NY Prac § 278, at 407 [2d ed]). When properly employed, moreover, summary judgment is a highly useful device for expediting the just disposition of a legal dispute for all parties and conserving already overburdened judicial resources. As such, we see no reason why summary judgment is not an appropriate procedure in proceedings under Family Court Act article 10.

We further conclude that summary judgment was properly granted here. The Nicholas V. child abuse petition alleged that "on numerous occasions since 1986,” appellant committed acts of oral sodomy upon Nicholas. In support of the motion for summary judgment, petitioner submitted the indictment, certificate of conviction of 15 counts of the indictment and the sentencing minutes of appellant’s sentencing, establishing his commission of 15 acts of sodomy of Nicholas in a three-month period from March through May 1988. Thus, the acts of sodomy for which appellant was convicted fell within the broad allegations of the Nicholas V abuse petition, and petitioner satisfied its burden, as the proponent of applying collateral estoppel here, to establish the identicality of the issue of appellant’s sexual abuse of Nicholas in the instant child protective proceeding and the issues resolved against him in the criminal proceeding (see, S. T. Grand, Inc. v City of New York, 32 NY2d 300, 304; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71). Appellant has not disputed that he had a full and fair opportunity to litigate in the criminal proceedings the issue of his commission of sodomy upon Nicholas. Therefore, all of the requirements were satisfied for applying collateral estoppel to sustain the Nicholas V. sexual abuse petition (S. T. Grand, Inc. v City of New York, supra).

The establishment of appellant’s sexual abuse of Nicholas constituted admissible proof of his neglect of Michael (Family Ct Act § 1046 [a] [i]). This shifted the burden to appellant to submit admissible evidence to create a triable issue regarding neglect of Michael; appellant’s unexcused failure to do so justified Family Court in granting summary judgment on the petition involving Michael (Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, we affirm the order of the Appellate Division insofar as it upheld the grant of summary judgment adjudicating Nicholas V. an abused child and Michael V. a neglected child.

We conclude, however, that Family Court erred in failing to hold a dispositional hearing. The Family Court Act directs that a dispositional hearing be held as a condition precedent to the entry of a dispositional order such as the order of protection granted by Family Court here (see, Family Ct Act §§ 1045, 1047, 1052 [a]). Nor was such a hearing entirely superfluous in this case. By dispensing with a dispositional hearing, Family Court limited its ability to make an informed judgment as to the need for alternative or additional dispositional remedies in the children’s best interests (see, Family Ct Act § 1052 [a] [i]-[v]). A dispositional hearing might have disclosed, for example, the children’s need for further intervention through an order of supervision of the parent in whose custody they were released, subject to conditions entailing the provision of rehabilitative or other therapeutic services (see, Family Ct Act § 1052 [a] [ii]; § 1054 [b]).

This matter, therefore, must be remitted to the Family Court for a dispositional hearing. At the dispositional hearing, Family Court has ample inherent discretionary power to conduct the proceedings so as to protect the children from further traumatic contact with appellant, should this be necessary (see, Matter of Lincoln v Lincoln, 24 NY2d 270, 272; see also, Matter of Christina F. [Gary F.] 74 NY2d 532, 535; Besharov, 1992 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1046, 1994 Pocket Part, at 156-157).

Accordingly, the order of the Appellate Division should be modified by remitting the matter to Family Court for a dispositional hearing and, as so modified, affirmed, without costs.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Ciparick concur; Judge Titone taking no part.

Order modified, without costs, by remitting the matter to Family Court, Suffolk County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.