text:
    New York State Club Association, Inc., Appellant, v City of New York et al., Respondents.
    Argued January 5, 1987;
    decided February 17, 1987

      POINTS OF COUNSEL

      Angelo T. Cometa, Louis J. Lefkowitz, Alan Mansfield and Debra A. Roth for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Patricia A. O’Malley, Leonard Koerner and Caryn M. Hirshleifer of counsel), for respondents.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Suzanne M. Lynn, Elvia Rosales Arriola and Margarita Rosa of counsel), for the State of New York and another, amici curiae.

      Judith I. Avner, Beverly Gross and Lynn Hecht Schafran for Now Legal Defense and Education Fund and others, amici curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

Sensitive to the reality that business is often conducted and professional contacts initiated and renewed in private clubs, the City of New York in 1984 adopted Local Law No. 63. The law is intended to prohibit discrimination in those clubs which, in essence, provide benefits to business entities and to persons other than their own members, thereby assuming a sufficient public character that they should forfeit the "distinctly private” exemption of the City’s Human Rights Law. Today, we uphold Local Law No. 63 as a valid and constitutional exercise of the police power of the City of New York.

The New York City Human Rights Law (Administrative Code of City of New York tit 8) forbids invidious discrimination in "place[s] of public accommodation, resort or amusement” (Administrative Code § 8-107 [2]). It excludes from its definition of "public accommodation” "any institution, club or place of accommodation which * * * is in its nature distinctly private” (Administrative Code § 8-102 [9]). As it originally read, the City Human Rights Law did not amplify what it meant by the term "distinctly private”. On October 9, 1984, the City Council enacted Local Law No. 63, which states that a club "shall not be considered in its nature distinctly private if it [1] has more than four hundred members, [2] provides regular meal service, and [3] regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business” (Local Laws, 1984, No. 63 of City of New York, amending Administrative Code § 8-102 [9]).

The need for this legislation, according to the extensive findings of the City Council, was to realize the City’s "compelling interest in providing its citizens * * * regardless of race, creed, color, national origin or sex * * * a fair and equal opportunity to participate in the business and professional life of the city”. The City Council found that business activity pervades clubs which have more than 400 members and regularly provide meals during which business is conducted. The Council further recognized that employers often pay the dues and expenses of their employees because the activities at the clubs help to develop the employers’ own business. In these circumstances, the Council concluded, denial of access to club facilities constitutes a significant barrier to the professional advancement of women and minorities since business transactions are often conducted in such clubs, and personal contacts valuable for business purposes, employment and professional advancement are formed.

Immediately after the Mayor signed Local Law No. 63, plaintiff New York State Club Association, Inc., a consortium of some 125 private clubs — many of which, according to plaintiffs affidavit, "intentionally have been organized along national origin, religious, ethnic and gender lines” — commenced this action against various City defendants for a judgment declaring Local Law No. 63 unconstitutional.

Plaintiffs primary contention on this appeal is that Local Law No. 63 violates the "home rule” provision of the New York State Constitution (art IX, § 2 [c]) because it is inconsistent with the State Human Rights Law (Executive Law § 290 et seq.), as construed by this court, and, therefore, constitutes an invalid exercise of the City’s police power.

I.

A.

The constitutional home rule provision confers broad police power upon local government relating to the welfare of its citizens (see, People v De Jesus, 54 NY2d 465, 468). However, it places two firm restrictions on their use: (1) the local government (here, the City of New York) may not exercise its police power by adopting a local law inconsistent with constitutional or general law; and (2) the City may not exercise its police power when the Legislature has restricted such an exercise by preempting the area of regulation (Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105; People v Cook, 34 NY2d 100, 105-106). The legislative intent to preempt need not be express. It is enough that the Legislature has impliedly evinced its desire to do so and that desire may be inferred from a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area.

Similarly, with respect to inconsistency, we have stated that there need not be an express conflict between State and local laws to render a local law invalid (Consolidated Edison Co. v Town of Red Hook, 60 NY2d, at p 108, supra). Rather, inconsistency "has been found where local laws prohibit what would have been permissible under State law or impose 'prerequisite "additional restrictions” ’ on rights under State law, so as to inhibit the operation of the State’s general laws” (id., quoting F. T. B. Realty Corp. v Goodman, 300 NY 140, 147-148 [citations omitted]).

The issues have been narrowed by the parties with the plaintiff having made two concessions. First, plaintiff does not question the City’s underlying authority to exercise the police power it possesses in the area of human rights (cf. Wholesale Laundry Bd. v City of New York, 17 AD2d 327, 328-329, affd 12 NY2d 998 [local law challenged on grounds of lack of home rule authority and as inconsistent]). Also important, plaintiff acknowledges on this appeal that the State has not preempted the field of antidiscrimination legislation by enacting the human rights provisions of the Executive Law (§ 290 et seq.). Having made these concessions — especially the latter — plaintiff would have us attach no legal significance to them and seeks to focus instead on the purported inconsistency of Local Law No. 63. A finding of inconsistency alone would require invalidation of Local Law No. 63, but in this case the distinction between preemption and inconsistency plaintiff urges is not so neat. For "these two [alleged] infirmities are often interrelated” (Consolidated Edison Co. v Town of Red Hook, at p 105, supra; see also, Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683).

We turn, then, to an examination of the State statutory scheme, there being no serious question that the City may indeed regulate in this area so long as the regulation is consistent.

B.

The State Human Rights Law begins with the declaration that "[i]t shall be deemed an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state concerning civil rights” (Executive Law § 290 [2]). The State statute forbids certain invidious discrimination by "any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof’ (Executive Law § 296 [2] [a]). It defines "place of public accommodation” "inclusively and illustratively, not specifically” (Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401, 409, rearg dismissed 60 NY2d 682, 702), setting forth an extensive list of examples of facilities that fall within the ambit of the statute (Executive Law § 292 [9]). Notably, in language identical to that employed in the City’s Human Rights Law, the State law excludes from the definition of "public accommodation” "any institution, club or place of accommodation which is in its nature distinctly private” (Executive Law § 292 [9]). Unlike the City counterpart, the State Human Rights Law contains no legislative definition of the term "distinctly private”.

In the face of this omission and in the absence of any claimed or apparent legislative design to preempt the area of antidiscrimination legislation, the precise question presented is whether the police power to govern with respect to public welfare, health and peace — inherent in the State, yet also delegated to municipalities under the Constitution’s home rule provision — permits the City to define for itself when a club loses its "distinctly private” nature.

People v Judiz (38 NY2d 529) presented a comparable problem. A provision of the State’s Penal Law (§ 265.01 [2]) prohibited the possession of, among other things, any imitation pistol "with intent to use the same unlawfully against another” (id., at p 531). We upheld the defendant’s conviction of possession of a toy pistol painted to resemble a real Luger pistol under a City ordinance which, by contrast, prohibited the possession or use of any toy or imitation pistol or revolver which substantially resembled an actual pistol or revolver; specific intent to use the toy weapon was not an- element of the local law (id., at pp 530-531). We held, first, that the State had not preempted the field, and, second, that the local law was not impermissibly inconsistent, reasoning that the Penal Law failed to define the term "imitation pistol”: the State law "evince[d] an intent to cover, quite broadly, most of the possible categories of weapons for which it deem[ed] some sanction is necessary when these are used with illegal intent, [but] the city ordinance is aimed at the prevention of a more particular type of abuse” (id., at p 532; see also, Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241, 247, affd 61 NY2d 942).

Similarly, in the present case, the City possesses broad home rule power and the State concededly has not preempted the area of antidiscrimination. That the field has not been preempted must mean that the Legislature would permit the City, consistent with both the letter and spirit of the State Human Rights Law, to regulate on its own in the face of the more particular situation it has found in its private clubs (see, People v Cook 34 NY2d 100, 109, supra; People v Judiz, 38 NY2d 529, 532, supra). Indeed, the State’s failure to define the term "distinctly private” suggests a legislative intent to allow local governments to enact pursuant to the municipal home rule power definitions that are not inconsistent with the meaning of this broad term.

Plaintiff acknowledges that no impermissible inconsistency exists between the State statute itself and the definition provided by Local Law No. 63; rather, it urges that the City’s parochial view of what a "distinctly private” club is conflicts with the working definition we supplied for that term for purposes of the State Human Rights Law in Power Squadrons (59 NY2d 401, supra). There, we emphasized that whether a "distinctly private” club is a place of public accommodation is a question of fact (id., at p 412). We set forth — in permissive terms — five factors that may be considered in determining whether the statutory exemption applies (at pp 412-413): "[i]n determining the issue, the fact finder may consider whether the club (1) has permanent machinery established to carefully screen applicants on any basis or no basis at all, i.e., membership is determined by subjective, not objective factors; (2) limits the use of the facilities and the services of the organization to members and bona fide guests of members; (3) is controlled by the membership; (4) is nonprofit and operated solely for the benefit and pleasure of the members; and (5) directs its publicity exclusively and only to members for their information and guidance”. We in no way suggested that failure to meet these precise criteria would be the only way that a club could be found to be not "distinctly private”. Indeed, we derived those five factors from case law decided under the more liberal Federal civil rights statute (Wright v Cork Club, 315 F Supp 1143, 1153; 42 USC § 2000a [e]; see, Note, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 NYU Rev L & Soc Change 215, 251) that excludes from its purview "private clubs or other establishments not in fact open to the public” (42 USC § 2000a [e]). By contrast, the State Legislature’s very use of the adverb "distinctly” in its own statutory exemption for private clubs indicates a concerted attempt to narrow its application (see, Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d, at p 412, supra). In keeping with the State scheme, the City employs the same modifier (Administrative Code § 8-102 [9]) and limits its own private club exemption to those that do not provide "regular” meal service and do not "regularly” receive certain payments from nonmembers in furtherance of their business (Local Laws, 1984, No. 63 of City of New York).

C.

The hallmark of the private club, we said in Power Squad rons (supra, at p 412), was its "selectivity in its membership”. Plaintiff contends that its member clubs "steadfastly adhere to exacting standards in their admissions policies, governance and administration of their facilities”; that they therefore qualify as "distinctly private” under Power Squadrons (supra); and that Local Law No. 63 represents a radical departure from that decision. However, Local Law No. 63 does not prohibit the City fact finder from considering the test of selectivity or, indeed, any of the Power Squadrons factors. It merely establishes that a private club will be deemed to have lost the essential characteristic of selectivity and instead have become "affected with a public interest” when it meets the City’s three-prong test (Matter of United States Power Squadrons v State Human Rights Appeal Bd., at p 414, supra). Thus, Local Law No. 63 does not purport to define for purposes of the City Human Rights Law all circumstances in which a club may not be "distinctly private”. Rather, it merely spells out objectively in more concrete terms the circumstances when a club, because of its large size, "public nature,” and volume of business-related activities will be deemed to have lost the essential characteristic of, privateness — i.e., selectivity. It is not unreasonable to determine that a large club which receives substantial business-related income from nonmembers cannot be selective in its membership and use of its facilities. Therefore, Local Law No. 63’s definition of "distinctly private” is not inconsistent with the use of this term in Executive Law § 292 (9) as interpreted in Power Squadrons.

Indeed, plaintiff goes too far when it asserts, relying on Wholesale Laundry Bd. v City of New York (12 NY2d 998, affg 17 AD2d 327, supra), that Local Law No. 63 is inconsistent with Power Squadrons because activity which arguably would be permitted under State decisional law is prohibited by the local law. As we stated in People v Cook (34 NY2d 100, 109, supra): "This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory”. Rather, the general principle set forth in Wholesale Laundry applies only when the Legislature has "evidenced a desire that its regulations should pre-empt the possibility of varying local regulations” (id.; see, Consolidated Edison Co. v Town of Red Hook, 60 NY2d, at pp 107-108, supra [observing that inconsistency may exist where local laws "prohibit what would be permissible under State law * * * so as to inhibit the operation of the State’s general law”]) or when the State specifically permits the conduct prohibited at the local level (see, Matter of Kress & Co. v Department of Health, 283 NY 55, 59; 6 McQuillin, Municipal Corporations § 23.07, at 391 [3d ed]). As we have already noted, no preemption is claimed here or is discernible from the statutory scheme (see generally, Executive Law §§ 295, 300; General Municipal Law §§ 239-o, 239-s). Moreover, neither the State Human Rights Law itself nor Power Squadrons mandates exemption for a club that meets the three-prong test of Local Law No. 63 (see, People v Judiz, 38 NY2d 529, 531-532, supra).

Finally, we reject plaintiff’s contention that the local law impermissibly shifts the onerous burden of establishing exemption on the clubs (see, Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d, at p 412, supra). Any allocation of the burden of proof effected by the enactment bears a reasonable relationship to the police power and is reasonably calculated to achieve by objective means the legitimate purpose of ensuring that only "distinctly private” clubs be exempt (see generally, D’Angelo v Cole, 67 NY2d 65, 69; People v Cook, 34 NY2d 100, 107, supra).

II.

We next address plaintiff’s argument that Local Law No. 63 violates its members’ rights to privacy, free speech and association under the Federal Constitution. Using the formulation set forth by the Supreme Court in Roberts v United States Jaycees (468 US 609), we conclude that the law does not abridge the club members’ freedom of intimate association. The definition read into the City Human Rights Law under Power Squadrons (59 NY2d 401, 412-413, supra) of "distinctly private” and the three-prong test set forth in Local Law No. 63 itself, together adequately assess "objective characteristics” of the organizations at issue, including criteria such as their "size, purpose, policies, selectivity, congeniality, and other characteristics that in [this] particular case [are] * * * pertinent” (Roberts v United States Jaycees, 468 US, at p 620, supra). In keeping with these objective and permissive factors, the law in effect deems a club that is large and where "much of the activity central to the * * * maintenance of the association involves the participation of strangers to that relationship” to have lost any claimed protection of intimate association (Roberts v United States Jaycees, 468 US, at p 621, supra).

Plaintiff also argues that Local Law No. 63 violates its freedom of expressive association or the freedom to engage as a group in pursuit of a wide variety of "political, social, economic, educational, religious, and cultural ends” (Roberts v United States Jaycees, 468 US, at p 622, supra; see, Griswold v Connecticut, 381 US 479, 483; N. A. A. C. P. v Alabama, 357 US 449, 460-461). It is undisputed on this record that plaintiffs constituent members have been organized "to provide a comfortable and congenial social atmosphere * * * and to engage in political, academic, social and/or recreational interchange with one another on a regular and continual basis”. But compelling governmental interests, unrelated to the suppression of ideas — here the City’s strong public policy to eliminate discrimination against women and minorities (see, Legislative Declaration, Local Laws, 1984, No. 63 of City of New York § 1; Administrative Code § 8-101) — manifestly justify some infringement (Roberts v United States Jaycees, 468 US, at p 624, supra). Indeed, the City has a compelling interest in assuring to women and minorities equal access to "advantages” and "privileges” (Administrative Code § 8-107 [2]) such as " '[leadership skills, * * * business contacts and employment promotions’ ” (Roberts v United States Jaycees, 468 US, at p 626, supra; see generally, Burns, Exclusion of Women from Influential Men’s Clubs: The Inner Sanctum and the Myth of Full Equality, 18 Harv CR-CL L Rev 321 [1983]; Goodwin, Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, 13 Sw U L Rev 237, 280-284 [1982]).

Moreover, through Local Law No. 63, the City has employed the least restrictive means to achieve its ends (see, Roberts v United States Jaycees, 468 US, at p 626, supra.). The law evinces an intent not to dictate the selection policies or activities of the private clubs except to the extent necessary to ensure that they do not automatically exclude persons from membership or use of the facilities on account of invidious discrimination (Legislative Declaration § 1). Notably, plaintiff has made no showing that its members’ free speech rights will be abridged — either in altering the policies or functions of the various organizations (see, Roberts v United States Jaycees, 468 US, at p 626, supra; Hishon v King & Spalding, 467 US 69, 78), or in creating a chilling effect on the behavior of club members (see, Burns, Exclusion of Women from Influential Men’s Clubs: The Inner Sanctum and the Myth of Full Equality, 18 Harv CR-CL L Rev 321, 344-345 [1983]).

Finally, although plaintiff’s constituent members have a right to free speech and to association, they 1‘ack the right to practice invidious discrimination against women and minorities in the distribution of important business advantages and privileges (see, Roberts v United States Jaycees, 468 US, at p 628, supra; Runyon v McCrary, 427 US 160, 175-176; Norwood v Harrison, 413 US 455, 469). Any incidental intrusion on protected free speech rights accomplished by the local measure is no greater than is necessary to fulfill the State’s legitimate purpose in extending to them equal opportunity in employment (see, Roberts v United States Jaycees, 468 US, at pp 628-629, supra).

We have considered plaintiff’s other arguments and find them to lack merit. Accordingly, the order of the Appellate Division should be affirmed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      .See, Legislative Declaration, Local Laws, 1984, No. 63 of City of New York § 1.

      .NY Constitution, art IX, § 2 (c) provides in pertinent part: "In addition to powers granted in the statute of local governments or any other law * ** * (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government * * * The government, protection, order, conduct, safety, health and well-being of persons or property therein” (i.e., the police power).

      .Although plaintiff commenced this action on these theories under both State and Federal Constitutions, it now only claims violation of Federal law. Accordingly, we do not address any allegation of violations under analogous provisions of the State Constitution.
      Nor do we address plaintiff’s allegation below that Local Law No. 63 constitutes an unlawful bill of attainder (US Const, art I, § 10) because it has abandoned this argument as a ground for reversal.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    Simone Waters et al., Appellants, v New York City Housing Authority, Respondent.
    Argued January 14, 1987;
    decided February 17, 1987

      POINTS OF COUNSEL

      Stephen Levine for appellants.

      Robert L. Boydstun for respondent.
   OPINION OF THE COURT

Titone, J.

The issue in this appeal is whether the owner of an occupied urban building who has not kept the building’s security system in good repair may be held liable in tort solely because the building was used to complete a crime that began on a public street. Under the circumstances of this case, where neither the victim nor the crime were connected with the defendant’s building, we hold that plaintiff was not within the zone of foreseeable harm and that, as a consequence, liability cannot be imposed.

The complaint in this case was dismissed by Special Term on defendant Housing Authority’s summary judgment motion after affidavits were submitted and a hearing in which plaintiff gave sworn testimony was held. The alleged facts, briefly stated, are that at about 6:45 a.m. on July 25, 1982, 16-year-old Simone Waters was walking on a public street, just outside a public housing project, whén she was accosted by a man who displayed a knife and demanded that she walk with him to a building around the corner. Once inside the building, which was unlocked, the man forced her to the roof and, after taking her money, sodomized her. According to her bill of particulars, plaintiff suffered emotional trauma, as well as minor physical injuries, as a result of the incident.

An investigator’s affidavit submitted by plaintiff further alleged that the front door locks on the building, which was owned by defendant, had been either broken or missing for at least two years before the incident and that several tenants had registered complaints about the condition over that two-year period. According to the affidavit, the investigator’s inquiries also disclosed that there had been at least five criminal incidents in the building involving outsiders. Finally, the investigator stated, based on his experience, that "had the door locks on this building been in proper working order, this sexual attack would in all probability have not occurred.” This statement was supported by the additional allegation that because of the nature of the crime and the psychology of this type of criminal, crimes such as this one "almost invariably occur in secluded areas.”

Relying on Palsgraf v Long Is. R. R. Co. (248 NY 339), Special Term held that "it requires too much stretching of the imagination to hold defendant responsible” for plaintiff’s injuries and, as a consequence, the court granted defendant’s motion for summary judgment. The Appellate Division affirmed, with two Justices dissenting. On plaintiffs appeal from the Appellate Division order, we now affirm.

It is clear that when a governmental entity such as defendant acts in a proprietary capacity as a landlord, it may be held liable in tort to the same extent as is a private landlord (Miller v State of New York, 62 NY2d 506, 511). It is also now beyond dispute that a landlord, private or public, may have a duty to take reasonable precautionary measures to secure the premises if it has notice of a likelihood of criminal intrusions posing a threat to safety (see, Miller v State of New York, supra; Nallan v Helmsley-Spear, Inc., 50 NY2d 507). Finally, we have held that a building owner who breaches such a duty may be held liable to an individual who is injured in a reasonably foreseeable criminal encounter that was proximately caused by the absence of adequate security (Miller v State of New York, supra; Nallan v Helmsley-Spear, Inc., supra).

These basic principles, however, do not resolve the unusual problem presented here. Although plaintiff has made the necessary allegations of negligent security maintenance, notice of prior criminal intrusion and proximately caused injury, her case differs significantly from those in which the landowner’s liability for inadequate security has previously been upheld. Unlike the tenant in Miller v State of New York (supra) and the business guest in Nallan v Helmsley-Spear, Inc. (supra), plaintiff had no connection whatsoever to the building in which her injuries ultimately occurred. Accordingly, we must look beyond Nallan and Miller to determine whether defendant landlord’s duty should be extended to a person in plaintiff’s position.

It is often said that "[pjroof of negligence in the air * * * will not do” (Pollock, Torts, at 472 [10th ed]; Martin v Herzog, 228 NY 164, 170). What this maxim suggests, simply put, is that the concept of a duty of care, which is essential to the law of negligence, has meaning only when it is considered in relation to both the harm that the duty exists to prevent and the class of individuals to whom it is owed. "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension” that delimits the duty’s scope (Palsgraf v Long Is. R. R. Co., supra, p 344).

The question of the scope of an alleged tort-feasor’s duty is, in the first instance, a legal issue for the court to resolve. In this analysis, "not only logic and science, but policy play an important role” (De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055). The common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss. While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that "the legal consequences of wrongs [are limited] to a controllable degree” (Tobin v Grossman, 24 NY2d 609, 619; see, Pulka v Edelman, 40 NY2d 781; Ultramares Corp. v Touche, 255 NY 170).

With these principles in mind, we turn now to the question whether this plaintiff was within the orbit of duty imposed on the owner of the building in which her injuries occurred. Initially, we note that the duty that was allegedly breached— to maintain the front door locks in working condition — exists principally to protect the safety and possessions of the tenants and visitors inside the premises (see, Miller v State of New York, supra). The risk to be reasonably apprehended in this instance is that of intrusion by outsiders with criminal motive who might do harm to those who have a right to feel at least minimally secure inside a dwelling place. Although it is argued that the duty to keep occupied residential premises secure also encompasses the risk that an unsecured building might become a safe haven for crime begun on the street, we cannot agree that the scope of a landowner’s duty should be extended to embrace members of the public at large, with no connection to the premises, who might be victimized by street predators.

In this regard, our decisions in Strauss v Belle Realty Co. (65 NY2d 399) and Pulka v Edelman (supra) are instructive. In Pulka we noted, in a slightly different context, that two important factors in determining the scope of a duty are " 'the relationship between the defendant and the [third] person who threatens the harm’ ” on the one hand, and the " 'relationship between the defendant and the person exposed to harm’ ” on the other (40 NY2d, p 783). We stressed the latter factor in Strauss, noting that while the absence of a relationship of privity between the defendant and the injured party is not by any means dispositive, "[considerations of privity are not entirely irrelevant”, particularly when public policy is involved (65 NY2d, pp 402-403). Our concern in Strauss was with the need to place "controllable limits” on liability (id., p 405). A similar concern is operative here.

Although strict notions of privity are not dispositive in defining the scope of a landowner’s duty (see, Basso v Miller, 40 NY2d 233), in this case both logic and public policy weigh heavily in favor of confining the scope of defendant landowner’s duty to protect against criminal acts to tenants and others who might reasonably be expected to be on the premises. An important consideration in this context is the fact that the landowner has no control over either the acts of the primary wrongdoer or the conditions on the public byways that make such acts all too commonplace (see, 2 Speiser, Krause & Gans, American Law of Torts § 9:19, at 1084-1085 [1985]; cf. Pulka v Edelman, supra, p 784). Another significant factor is the virtually limitless liability to which defendant and other landowners would be exposed if their legal obligations were extended to plaintiff and to all others in her position (see, Strauss v Belle Realty Co., supra).

Finally, we note that the important public goals of minimizing crime and encouraging the maintenance of urban property would not materially be advanced by expanding the scope of landowners’ duties in the manner plaintiff suggests. The possibility of tort liability arising from injury to tenants or others on the premises provides a strong incentive to landlords to keep locks and other security systems in good repair. Moreover, it is unlikely that the incidence of street crime would be meaningfully affected, since the urban environment includes many nooks and crannies, other than unsecured dwellings, which afford malefactors the privacy they need to commit their misdeeds. Thus, the social benefits to be gained do not warrant the extension of the landowner’s duty to maintain secure premises to the millions of individuals who use the sidewalks of New York City each day and are thereby exposed to the dangers of street crime.

Because defendant landowner had no relationship at all to the as-yet-unidentified wrongdoer whose presence on the street posed a threat to plaintiff’s safety (cf. Pulka v Edelman, supra, ,p 784) and because this injured plaintiff had no association with the premises independent of the crime itself, the landowner’s duty to maintain the security of the building may not be deemed to extend to her. This conclusion alone is fatal to her claim, regardless of whether the ultimate harm could be found to be reasonably foreseeable (Pulka v Edelman, supra, p 785). Accordingly, the complaint was properly dismissed and the order appealed from should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      Plaintiff’s claim is based on the premise that the assailant’s apparent foreknowledge of the building’s existence was a substantial cause of his decision to commit this crime. Our conclusion that plaintiff was not within the zone of harm contemplated by the landowner’s duty to keep the premises secure makes it unnecessary for us to decide whether this theory would be a legally sufficient basis for a finding of proximate cause (cf. Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520-521).


author:
Chief Judge Wachtler.
      Simons, J.

text:
    In the Matter of the Grand Jury Subpoena Duces Tecum Dated December 14, 1984, Y., M. D., P. C., Respondent-Appellant, v Edward Kuriansky, as Deputy Attorney-General of the State of New York, Appellant-Respondent. In the Matter of the Grand Jury Subpoena Duces Tecum Dated December 14, 1984, X., M. D., Respondent-Appellant, v Edward Kuriansky, as Deputy Attorney-General of the State of New York, Appellant-Respondent.
    Argued January 6, 1987;
    decided February 19, 1987

      POINTS OF COUNSEL

      Edward J. Kuriansky, Deputy Attorney-General, pro se, and Robert Dublirer, Donald H. Zuckerman and Lawrence N. Gray for Edward J. Kuriansky, appellant-respondent.

      Gerald B. Lefcourt, Lawrence S. Goldman, Erica Horwitz, Joshua L. Dratel and Roger Parloff for respondents-appellants.

      Joel I. Klein, Paul M. Smith and JoAnn E. MacBeth for the New York Psychiatric Association, amicus curiae.

      Arthur G. Weinstein and David Wait for New York State District Attorneys Association, amicus curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

The physician-patient privilege originated in this State. It did not exist at common law and the first statute to recognize the privilege was adopted by the New York Legislature in 1828. This case tests that privilege against a Grand Jury subpoena.

Petitioners, two psychiatrists, have moved to quash subpoenas requiring them to produce records before a Grand Jury investigating complaints of Medicaid fraud. Their primary contentions are that compliance with the subpoenas will violate their Fifth Amendment rights, as well as the physician-patient privilege granted to their patients by statute (CPLR 4504). The trial court denied the motion but the Appellate Division modified, concluding that the physician-patient privilege applied, except as to matters necessary to the investigation, and ordered an in camera inspection to determine which portions of the records should be disclosed. Both sides have appealed by leave of the Appellate Division.

The Deputy Attorney-General in charge of the investigation argues that the physician-patient privilege does not apply to Medicaid fraud investigations and that the records should be produced without a showing of need. The petitioners, on their cross appeal, argue that the act of producing the records would constitute self-incrimination and therefore, the motion to quash should have been granted. In the alternative, they argue the modification was proper.

The petitioners are practicing psychiatrists with offices in the City of New York. Dr. X is a sole practitioner; Dr. Y has been practicing as a professional corporation since 1980. He is the sole shareholder, officer and employee of the corporation. Both doctors are Medicaid providers, who from 1981 to 1983 received considerable sums for services performed for Medicaid patients. They are also the subject of a Grand Jury investigation into allegations of Medicaid fraud, including a claim that each of them received Medicaid payments for services rendered to patients in New York while the doctors were actually out of the country.

On December 14, 1984 each of the petitioners was served with a subpoena, issued by the Deputy Attorney-General for Medicaid Fraud Control, requiring appearance before the Grand Jury and production of certain records covering a period from January 1, 1981 to December 31, 1983. Dr. X, the sole practitioner, was directed to produce "[s]uch records as [are] required by law to be kept, which reflect the evaluation and treatment * * * [and] which disclose fully the extent of care, services and supplies provided under the New York State Medicaid Program” to approximately 167 patients listed in an attached schedule. The subpoena served on Dr. Y ordered "[a]ny Officer, Director or Managing Agent” of the professional corporation to produce various corporate records, including "patient charts” for over 150 "Medicaid recipients listed in Schedule 'A’ annexed hereto.” There is no indication that any of the patients whose records were sought had executed waivers.

Each of the petitioners moved to quash the subpoenas principally on the grounds that requiring them to produce the records would violate their rights under the Fifth Amendment of the United States Constitution against self-incrimination and their patients’ statutory physician-patient privilege.

The trial court denied the motions. The court held that the Fifth Amendment privilege could not be asserted with respect to corporate records or records required to be kept by law. Relying on our decision in Matter of Camperlengo v Blum (56 NY2d 251), the court also concluded that the physician-patient privilege was abrogated when medical records are sought in an investigation of fraudulent Medicaid practices.

The Appellate Division modified. That court agreed that the Fifth Amendment provided no basis for quashing the subpoenas. However, also relying on our decision in Matter of Camperlengo, the court concluded that in a Medicaid investigation, the physician-patient privilege was abrogated only to the extent necessary to insure that Medicaid funds are being properly applied. The court concluded that this imposed "a requirement of particularized need before the production of medical records otherwise protected by the privilege may be required” (113 AD2d 49, 54). The court remitted to have the trial court conduct an in camera inspection to determine which portions of the records should be made available to the Grand Jury.

On this appeal the Deputy Attorney-General urges that the physician-patient privilege is completely inapplicable to Medicaid investigations and that in such cases those conducting the investigation should have unrestricted access to medical records of Medicaid patients, without having to make any showing of need for the particular record. He claims that this is required by the Federal law relating to Medicaid, by our own prior decisions and by the public policy against delaying Grand Jury investigations.

The statutory privilege protects confidential communications between patient and physician in order to protect the patient from "humiliation, embarrassment or disgrace” (Steinberg v New York Life Ins. Co., 263 NY 45, 48-49). The theory is that a person in need of medical attention should be encouraged to make full and candid disclosure of all matters necessary to treatment by being assured that what is disclosed to the doctor will not be revealed to others without the patient’s consent (3 Commission on Revision of Statutes of NY, at 737 [1836]). The privilege is personal to the patient but may be asserted by the physician in the absence of a waiver by the patient (Prink v Rockefeller Center, 48 NY2d 309, 314-315).

A number of exceptions have been recognized, but there is no exception for Grand Jury proceedings or criminal investigations generally (Matter of Grand Jury Investigation, 59 NY2d 130, 135-136). A physician, medical facility and others may assert the privilege before a Grand Jury, unless the patient was a victim of the one asserting the privilege (Matter of Grand Jury Investigation, supra, at p 135). However in Matter of Camperlengo v Blum (supra) we did recognize an exception for Medicaid investigations. In that case, involving a subpoena issued in connection with an administrative investigation by the Department of Social Services, we stated (at pp 255-256): "Although there is no express statutory exception to the privilege for Medicaid-related records, the Federal and State record-keeping and reporting requirements evidence a clear intention to abrogate the physician-patient privilege to the extent necessary to satisfy the important public interest in seeing that Medicaid funds are properly applied.”

The Deputy Attorney-General contends that this decision and the subsequent holding in Matter of Doe v Kuriansky (91 AD2d 1068, affd 59 NY2d 836) applying the exception to Grand Jury proceedings initiated by the Medicaid Fraud Unit establish a right of unrestricted access to medical records of Medicaid recipients in the case now before us. In Matter of Camperlengo (supra), the petitioner broadly contended that the privilege could be asserted to deny the investigators access to all medical records, and in Matter of Doe (supra), the petitioner made a contention, nearly as broad, that all patients’ names should be redacted from the medical records, and that all medical information should be deleted from certain nonmedical records. Although we rejected those contentions, we did not consider whether a more narrow assertion of the privilege, addressed to particularly sensitive matter apparently unnecessary to the investigation, would prove unavailing. Indeed in Matter of Camperlengo we noted that we had "no occasion to delineate the precise boundaries of the exception” because the petitioner there had abandoned any claim that the subpoena was overly broad (Matter of Camperlengo v Blum, supra, at p 256, n).

The Deputy Attorney-General contends that any rule denying Medicaid investigators unfettered access to medical records of Medicaid recipients is inconsistent with Federal law and would jeopardize this State’s right to receive Medicaid funds. Concededly a State participating in the Medicaid program must comply with the Federal statutes which require Medicaid providers to maintain and furnish to appropriate authorities "such records as are necessary fully to disclose the extent of the services provided.” (42 USC § 1396a [a] [27].) But the exception to the physician-patient privilege resulting from this requirement is "intended to be no broader than necessary for effective oversight of the Medicaid program” (Matter of Camperlengo v Blum, supra, at p 256). Thus Medicaid investigators have an unqualified right to review all records needed for the investigation, even though they may contain privileged, and extremely sensitive, material. It is only privileged matters not necessary to the Medicaid investigation which need not be disclosed (see, Commonwealth v Kobrin, 395 Mass 284, 479 NE2d 674). This minimal and occasional qualification of the investigators’ powers is consonant with Federal objectives and would not jeopardize the State’s Medicaid entitlements.

The Deputy Attorney-General’s objection to this rule is essentially procedural. He apparently claims no right to obtain records which are clearly unnecessary to the investigation. However, he contends that Medicaid investigations will be unduly delayed if investigators are generally required to appear in court and prove that subpoenaed records containing privileged material are necessary to the investigation. This is a legitimate concern, but we do not impose any such broad, generalized requirement on those conducting Medicaid investigations.

In most instances the information sought by Medicaid investigators is either not privileged, or of such a nature that its relevance to a Medicaid investigation is readily apparent. For instance, the identity of patients as well as the dates of treatment is not covered by the physician-patient privilege (Matter of Grand Jury Investigation, supra, at pp 134-135; Lorde v Guardian Life Ins. Co., 252 App Div 646). The diagnosis and the nature and extent of treatment are privileged (Matter of Grand Jury Investigation, supra, at p 135), but are obviously necessary for those investigating the validity of a claim, which has been submitted for payment, or paid out of Medicaid funds. Records of this nature should be routinely disclosed to those charged with making such investigations. Merely asserting the privilege is not enough; something more must be shown before court intervention would be warranted. It is only in the rare instance where the record sought contains highly sensitive matter having no apparent relevance to the Medicaid investigation, that a claim of privilege need be considered. In those instances the burden is on the person asserting the privilege to identify the particular record. If the court agrees that an explanation is warranted, then the burden would be on the investigator to show why disclosure of that record is necessary to the investigation.

The investigator’s response need not be burdensome or subject to dilatory abuses. He should not be obligated to show a "particularized need”, as would be required for disclosure of Grand Jury minutes (see, Matter of District Attorney, 58 NY2d 436, 444). Disclosure of medical records to Medicaid investigators is not public disclosure. Under both Federal and State law information obtained in that manner must remain confidential within the confines of the Medicaid investigation (Matter of Camperlengo v Blum, supra, at p 256). Thus a showing that the record sought, although unusually sensitive and otherwise privileged, reasonably and minimally comes within the scope of the investigation, should suffice to authorize limited disclosure to Medicaid investigators.

In the case now before us the subpoenas are so broadly worded as to require the psychiatrists to disclose all records relating to treatment, including consultation notes of all psychotherapeutic sessions with the patient. This, we have noted, is particularly sensitive matter (Cynthia B. v New Rochelle Hosp. Med. Center, 60 NY2d 452, 459). The nature of the record, however, is not alone sufficient to satisfy the custodian’s burden of demonstrating that a particular record or portion of a record contains highly sensitive material apparently bearing no relevance to the investigation. In this case, the custodians made no such showing, which generally would require the court to deny them any relief with respect to the subpoena. Remittal is appropriate here solely because the petitioners had no opportunity to meet the standard we now establish.

With respect to the petitioners’ cross appeal, the courts below properly held that compliance with the subpoenas would not infringe the petitioners’ Fifth Amendment rights. As noted, the subpoena served on Dr. X sought only records required to be kept by law, and the subpoena served on Dr. Y sought only corporate records, most of which are also required to be kept by law. It is settled that a corporation has no Fifth Amendment privilege and that a custodian of corporate records may not refuse to produce them even though they may incriminate him personally (Bellis v United States, 417 US 85, 88; Matter of Bleakley v Schlesinger, 294 NY 312). It is also settled that the Fifth Amendment privilege may not be asserted with respect to records required to be kept by law. (Shapiro v United States, 335 US 1; People v Doe, 59 NY2d 655).

Petitioners concede that the Fifth Amendment privilege does not apply to the content of these records. They contend, however, that the act of producing the records may be incriminatory because the petitioners would be admitting that the records exist, that they are in the petitioners’ possession and that they are accurate. They urge that recent Supreme Court decisions (United States v Doe, 465 US 605; Fisher v United States, 425 US 391) undermine the settled law and would now permit the custodians of corporate records and required records to refuse to produce them when the act of production would itself be incriminatory. These cases, however, did not expressly overrule the prior cases, and in the most recent case the Supreme Court noted that the rule announced "concerns only business documents and records not required by law to be kept or disclosed to a public agency.” (United States v Doe, supra, at p 607, n 3.)

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

Simons, J.

(dissenting). In my view, reinstatement of Supreme Court’s orders is compelled by three recent decisions of this court.

In Virag v Hynes (54 NY2d 437), we detailed the fundamental difference between Grand Jury subpoenas, which are presumptively valid, and office subpoenas, which are more readily subject to attack on relevancy grounds. We held that because of the presumption of validity, a prosecutor has no affirmative burden, when a motion is made to quash, to announce the scope or purpose of the Grand Jury’s investigation or to establish the relevancy of the materials sought by it. The Grand Jury is an arm of the court and " '[n]o witness may avoid obedience to the directions of the court without establishing by concrete evidence that the subpoena was issued in bad faith or that it is for some other reason invalid’ ” (id., at pp 442-443, quoting from Matter of Manning v Valente, 272 App Div 358, 361, affd 297 NY 681). Any other rule, we said, would result in needless delays of the Grand Jury’s deliberations while minitrials were held to test subpoenas and would thereby impose an intolerable burden on the investigation and prosecution of crime (id., at pp 442-445). In the absence of such "concrete evidence” of invalidity, the motion to quash must be denied.

Matter of Camperlengo v Blum (56 NY2d 251) involved a Medicaid fraud investigation by the Department of Social Services in which the Department issued an office subpoena seeking production of a psychiatrist’s records. The psychiatrist moved to quash the subpoena on the ground that the patients’ records were privileged. We denied the motion, holding that the statutory physician-patient privilege would not be recognized in Medicaid fraud investigations. Accordingly, we ordered production of the complete records of 35 Medicaid patients. Our decision was based upon the public’s strong interest in discovering and punishing such frauds, upon the relationship between the State and Federal Governments in Medicaid matters, and upon our determination that the statutory record-keeping requirements of the Federal Government superseded the State’s statutory privilege (for similar statutes superseding CPLR 4504 see, Family Ct Act § 1046 [a] [vii]; Public Health Law § 3373).

In Matter of Doe v Kuriansky (59 NY2d 836, affg for reasons stated below 91 AD2d 1068), a hospital sought to quash a subpoena seeking the names of patients and certain medical information concerning them contained, in nonmedical records. We applied the rules of Virag and Camperlengo and held that, when subpoenaed, a hospital under investigation for Medicaid fraud must produce complete and unredacted records. The decision expressly states the rule that the statutory privileges, including the physician-patient privilege, do not apply or restrict information subject to Grand Jury subpoena in Medicaid fraud investigations.

In this case, the Deputy Attorney-General investigating Medicaid fraud issued presumptively valid Grand Jury subpoenas seeking petitioners’ patient records. Petitioners moved to quash on constitutional grounds, a claim which the court finds to be without merit. They also asserted that the subpoenas should be quashed because of the physician-patient privilege, notwithstanding our earlier decisions in Camperlengo and Doe. Although petitioners make much of the point now, their moving papers before Special Term did not contain any claim, let alone the "concrete evidence” required by Virag, that the information sought was irrelevant or the subpoena overbroad, nor did they urge that the rule in Camperlengo was less than absolute or the decision in Doe reaffirming it, was wrong or, for any reason, inapplicable to these subpoenas.

Notwithstanding these decisions and the nature of petitioners’ claims at Special Term, the majority finds that over-breadth may indeed be found because of the physician-patient privilege unless the prosecutor justifies the need for the information sought. It does so because it interprets Camperlengo as holding that the exception to the privilege in Medicaid fraud investigations is not absolute and no broader than necessary for effective oversight of the Medicaid program (see, Matter of Camperlengo v Blum, 56 NY2d 251, 255-256, supra). That qualification was explained by the sentence immediately following it, however. The court made clear that the exception created by the Federal record-keeping requirement did not override the physician-patient privilege generally but only that no privilege could be asserted to permit withholding information "directly connected with administering the Medicaid program”. It elaborated on the point by citing statutes preventing disclosure to unauthorized parties or agencies, i.e., 42 USC § 1396a (a) (7); Social Services Law §§ 136, 367-b (4); § 369 (3) (id., at p 256). The court made clear that this "no broader than necessary” language was intended only to avoid disclosure of patients’ records to persons other than those charged with oversight of the Medicaid program. This was confirmed by our decision in Matter of Doe v Kuriansky (59 NY2d 836, supra) which granted the Grand Jury unrestricted access to patients’ records. Thus, Camperlengo did not create any obligation on the part of the Attorney-General to specify the need for each part of the records subpoenaed, rather it delineated the use to which the records could be put when subpoenaed.

This proceeding involves an on-going investigation of psychiatrists charged with fraudulent Medicaid billing, as did Camperlengo, a Grand Jury subpoena presumptively valid, as in Virag, and patient records subject to production without redaction, as in Doe. It would seem self-evident that at this stage of the proceedings the prosecutor cannot know, and should not be required to detail, the scope and purpose of his investigation or the need for the records. The Grand Jury will necessarily need the complete records because the nature and amount of the charges, to say nothing of their legitimacy, will depend on the patients’ complaints and the services rendered to treat them. Nevertheless, the majority, based upon motion papers which do not assert even an arguable basis for an overbreadth or relevancy claim, and citing Cynthia B. v New Rochelle Hosp. Med. Center (60 NY2d 452), a case which does not involve Medicaid fraud and is not in point, has required the prosecutor to establish the Grand Jury’s need for the records. Although petitioners have not alleged "the concrete evidence” required to warrant an inquiry into the validity of the subpoenas and do not now claim any irregularity in them, they are to be given an opportunity to fashion such an objection at a hearing at which the prosecutor must shoulder the burden of sustaining the Grand Jury’s requests for this information. In my judgment, this ruling realigns the presumption and burdens of proof established in Virag, misconstrues our decision in Camperlengo and overrules our holding in Doe. I, therefore, dissent in part and vote to modify the order of the Appellate Division by reinstating the orders of Supreme Court, New York County.

Judges Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur with Chief Judge Wachtler; Judge Simons dissents in part and votes to modify by reinstating the orders of Supreme Court, New York County, in a separate opinion.

Order affirmed, without costs. Question certified answered in the affirmative.

      [1] Contrary to the dissent, the question of the subpoenas’ overbreadth may be considered on the merits in this court. Unlike Matter of Camperlengo v Blum (56 NY2d 251) where the petitioners did not argue before our court that the subpoena is overbroad, the petitioners here have made such an argument on this appeal. The fact that the petitioners did not raise this point in the trial court does not preclude us from considering it here because the rights of third parties not before the court would be affected by the disclosure (Matter of Johnson Newspaper Corp. v Stainkamp, 61 NY2d 958).


author: Hancock, Jr., J.

text:
    In the Matter of Capital Newspapers, Division of the Hearst Corporation, Appellant, v Thomas M. Whalen, III, as Mayor of the City of Albany, et al., Respondents.
    Argued January 13, 1987;
    decided February 19, 1987

      POINTS OF COUNSEL

      Peter L. Danziger, Thomas F. Gleason and Mary O. Donohue for appellant.

      Vincent J. McArdle, Jr., Corporation Counsel (W. Dennis Duggan of counsel), for respondents.
   OPINION OF THE COURT

Hancock, Jr., J.

We hold that under the Freedom of Information Law (FOIL) (Public Officers Law art 6) personal or unofficial documents which are intermingled with official government files and are being "kept” or "held” by a governmental entity are "records” maintained by an "agency” under Public Officers Law § 86 (3), (4). Such records are, therefore, subject to disclosure under FOIL absent a specific statutory exemption.

The term "record” for purposes of FOIL is broadly defined and includes "any information kept, held, filed, produced or reproduced by, with or for an agency * * * in any physical form whatsoever” (Public Officers Law § 86 [4]). The definition of "agency” is equally inclusive, encompassing "any * * * public corporation * * * or other governmental entity” (Public Officers Law § 86 [3]).

At issue in this appeal by petitioner’s newspaper is whether two categories of documents in custody of respondent City of Albany should be held to be "records” under FOIL: correspondence of a former Mayor of Albany, the late Erastus Corning, II, concerning matters of a personal nature and correspondence concerning the activities of the Albany County Democratic Committee. The narrow question of statutory construction presented arises from respondents’ contention that although these papers are literally within the FOIL definitions as "record[s]” being "kept” or "held” by an "agency” (the City of Albany), they are, nonetheless, outside of the scope of FOIL because of the private nature of their contents. For reasons to be discussed, we disagree with respondents’ contention and conclude that there should be a reversal.

I

Erastus Corning, II, was the Mayor of Albany from 1942 until his death in 1983. During his tenure, Mayor Corning collected and stored more than 900,000 pages of documents (the Corning papers) at his office in City Hall. Included among the documents were letters and documents pertaining to Coming’s personal affairs and to his activities as Albany County Democratic Committee Chairman.

Following Mayor Coming’s death, some of his personal correspondence was turned over to his family. The rest of the documents were listed by title, given index numbers, packed in over 300 cartons and either stored "at Albany City Hall or transferred to the City and County Hall of Records”. On August 27, 1984, a reporter for petitioner’s Albany evening newspaper, The Knickerbocker News, was granted access to the Corning papers by respondent Thomas M. Whalen, III, Coming’s successor as Mayor of Albany. The reporter copied several documents which became the subject of news stories and in some cases appeared verbatim in The Knickerbocker News. Subsequently, respondents advised petitioner that further access would be denied until they had reviewed the Corning papers and removed the personal documents — which, in their opinion, were not covered by FOIL — and such other documents as were within one of FOIL’S specific exemptions. Respondents stated that access to Coming’s personal letters and to correspondence relating to his Albany County Democratic Committee activities was being denied, not because of any claimed FOIL exemption but solely because those documents were not written or received by Corning in his capacity as Mayor. Access to the remaining Corning papers, respondents advised, would be allowed once the sorting process was completed and the personal letters and the Albany County Democratic Committee papers removed.

After the city’s FOIL Appeals Officer denied petitioner’s appeal of respondents’ partial refusal of access (see, Public Officers Law § 89 [4] [a]), petitioner sought an advisory opinion from the State Committee on Open Government (see, Public Officers Law § 89 [1] [b] [ii]). The Committee’s opinion in reply was that all of the Corning papers, unless specifically exempt, were accessible under FOIL because the papers were within FOIL’S expansive definition of "record” and were "kept” by the city, an "agency” as defined in the statute.

In this proceeding to obtain its statutory remedy of court-ordered access (Public Officers Law § 89 [4] [b]), commenced by petitioner after receipt of the advisory opinion, it alleges that the Corning papers were "received, prepared, copied or stored * * * by employees of the City or County of Albany”, that the "services, materials, equipment and personnel used in receiving, preparing, copying and storing the Corning papers were paid for or provided by the City or County of Albany”, and that the papers are currently being stored at Albany City Hall or at the City or County Hall of Records. Petitioner subsequently amended its request for access by limiting it to documents "assembled” from January 1, 1980 until June 1, 1983. Special Term (126 Mise 2d 710, 713) granted petitioner’s amended request but provided that respondents could "articulate particularized and specific justifications for withholding” specific documents under FOIL’S enumerated exemptions (Public Officers Law § 87 [2]); any records claimed by respondents to be exempt were ordered to be furnished to the court for its in camera inspection.

On appeal to the Appellate Division, that court unanimously modified by striking the requirement of disclosure for papers of a personal nature and those relating to the Albany County Democratic Committee and it remitted the matter to Special Term for further proceedings. The Appellate Division held that the Legislature intended to subject to disclosure only those records which revealed the workings of government and that disclosure of private papers of a public officeholder would not further the purpose of FOIL. Moreover, because the papers were originally "kept” by Corning in his individual capacity, the court reasoned that they were not being "kept” by an "agency” for purpose of the FOIL request, even though the papers had, in the interim, come under the city’s custody. The appeal comes before us on a certified question: whether the Appellate Division erred as a matter of law, in modifying Special Term’s judgment with respect to the disclosure of the papers relating solely to Mayor Coming’s personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee. The question should be answered in the affirmative, the order of the Appellate Division reversed, and that of Special Term reinstated.

II

It is fundamental that in interpreting a statute, a court should look first to the particular words in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 NY2d 8, 15-17; McKinney’s Cons Laws of NY, Book 1, Statutes § 94, p 232). Here, if the terms "record” and "agency” are given their natural and obvious meanings, the Corning papers would fall within such definitions. The term "record” is defined as "any information kept [or] held * * * by, with or for an agency * * * in any physical form whatsoever” (Public Officers Law § 86 [4]). Unquestionably the Corning papers constitute "information * * * in [some] physical form” stored, "kept [or] held” by the city, a "governmental entity” and, as such, an "agency” for purposes of FOIL (see, Public Officers Law § 86 [3]).

Although the Corning papers thus come within the definition of "record”, respondents maintain that they should, nevertheless, not be held to be within the scope of FOIL. They argue that the Legislature intended that only records dealing with the governmental decision-making process should be subject to disclosure under FOIL not papers outside this category such as private papers of governmental employees. It is quite true, as respondents urge, that we are not bound to accord a literal interpretation to a statutory definition if to do so would lead to an unreasonable result or defeat the general purpose and manifest policy intended to be promoted (see, Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38), and that in the interpretation of statutes the "legislative intent is the great and controlling principle” (People v Ryan, 274 NY 149, 152). Here, however, we find nothing to suggest that the Legislature intended that the definitions of "record” and "agency” should be given anything other than their natural and obvious meanings. On the contrary, respondents’ narrow construction would be inimical to the public policy underlying FOIL and would conflict with the legislative intent which is apparent in the language of the statute as a whole and in the detailed procedures established in FOIL for designating documents which should properly be exempt. Moreover, the construction, if given effect, could, as a practical matter, frustrate the very purpose of the legislation.

It is settled that FOIL is based on the overriding policy consideration that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571). Indeed, in enacting FOIL the Legislature specifically declared: "that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.” (Public Officers Law § 84.) We have held, therefore, that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564, citing Matter of Fink v Lefkowitz, supra, at p 571). It is evident that the narrow construction respondents urge is contrary to these decisions and antagonistic to the important public policy underlying FOIL.

Nevertheless, respondents seek to read into the definitions of "record” and "agency” a requirement that, for documents to be within FOIL’S scope, their subject matter must evince some governmental purpose. There is, however, no language in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record”. On the contrary, we held in Matter of Westchester Rockland Newspapers v Kimball (50 NY2d 575, 581) that FOIL’S scope is not to be limited based on "the purpose for which the document was produced or the function to which it relates”. Such a limitation would be difficult to define, we explained, because of "the expanding boundaries of governmental activity” and because "in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same pérson or persons” (id.).

Moreover, respondents’ construction — permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL — would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL’S scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law § 87 [2]; § 89 [2], [3]). Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law § 89 (3) to prevent an unwarranted invasion of privacy (see, Public Officers Law § 89 [2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law § 87 [2]). A party seeking disclosure may challenge the agency’s assertion of an exemption by appealing within the agency pursuant to Public Officers Law § 89 (4) (a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law § 89 [4] [b]). Respondents’ construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action. Thus] respondents’ construction would render much of the statutory exemption and review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions (see, McKinney’s Cons Laws of NY, Book 1, Statutes §98).

Finally, as a practical matter, the procedure permitting an unreviewable prescreening of documents — which respondents urge us to engraft on the statute — could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request. There would be no way to prevent a custodian of records from removing a public record from FOIL’S reach by simply labeling it "purely private”. Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected (McKinney’s Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the question certified answered in the affirmative and the judgment of the Supreme Court reinstated.

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

Order reversed, etc.

      ."Record” is defined as follows: "any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes” (Public Officers Law § 86 [4]).

      ."Agency” is defined as follows: "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature” (Public Officers Law § 86 [3]).

      . The certified question is: "Did this court err, as a matter of law, in modifying Special Term’s judgment by reversing so much thereof as required disclosure of the papers of the late Erastus Corning, II, for the years 1980-1983 relating solely to his personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee, remitting the matter to Special Term for further proceedings, and, as so modified, affirming the judgment?”

      . Respondents argue that the Corning papers are not "record[s]” because the papers were kept by ex-Mayor Corning in his individual capacity, not as an officeholder, and, therefore, an "agency” did not keep or hold the documents. Petitioner did not, however, request disclosure of the Corning papers while they were being "kept [or] held” by Corning. Rather, disclosure is sought from the City of Albany, which now has custody of the papers and is storing them. Therefore, the only questions properly before us are whether the City of Albany is an "agency” and whether the Corning papers are "record[s]” for purposes of FOIL.

      .FOIL also allows a party to receive an advisory opinion from the Committee on Open Government (see, Public Officers Law § 89 [1] [b]).


text:
    Eleanor Cuffy et al., Respondents, v City of New York, Appellant.
    Argued January 12, 1987;
    decided February 19, 1987

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Margaret G. King and June A. Witterschein of counsel), for appellant.

      Arthur N. Seiff and Charles F. McGuire for respondents.
   OPINION OF THE COURT

Titone, J.

In a line of cases culminating in Sorichetti v City of New York (65 NY2d 461), we recognized a narrow right to recover from a municipality for its negligent failure to provide police protection where a promise of protection was made to a particular citizen and, as a consequence, a "special duty” to that citizen arose (cf. Florence v Goldberg, 44 NY2d 189). Essential to recovery is proof that the plaintiff relied on the promise and that his reliance was causally related to the harm he suffered. In this case, there was proof of a promise of protection made by an agent of the City, but, for a variety of reasons, the reliance element was not established by any of these three plaintiffs. Accordingly, we now reverse the order appealed from and hold that the complaint against the City should have been dismissed.

The violence that led to plaintiffs’ injuries originated in a landlord-tenant dispute between Joseph and Eleanor Cuffy, who occupied the upper apartment of their two-family house in The Bronx, and Joel and Barbara Aitkins, who had leased the ground-floor apartment from the Cuffys for approximately a year. Even before the incidents that are directly involved in this action, there had been episodes between the two couples which the police had been called to mediate. Eleanor Cuffy had previously filed a formal criminal complaint against the Aitkinses, and a prior effort at supervised informal dispute resolution had terminated in an arbitrator’s order directing Ms. Cuffy and the Aitkinses to avoid further contact. This history of repeated confrontation and police intervention forms the backdrop for the events at issue in the trial of the Cuffys’ claims against the City.

Viewed in the light most favorable to plaintiffs (see, Derdia rian v Felix Contr. Co. (51 NY2d 308, 312, n 1), the evidence at the trial showed that on July 27, 1981, the night immediately preceding the incident, Joel Aitkins physically attacked Eleanor Cuffy, tearing her blouse and bruising her eye. Officer Pennington, who had responded to reports of skirmishes between the Aitkinses and the Cuffys on two or three prior occasions, came to the house once again to investigate, but declined to take any specific action because, in his judgment, the offense was merely a matter of "harassment” between landlord and tenant and an arrest was not warranted.

In frustration, Joseph Cuffy, who had been to see the police four or five times before, went to the local precinct with a neighbor at about 11:00 that night to ask for protection for his family. Cuffy spoke with Lieutenant Moretti, the desk officer, and told him that the Aitkinses had threatened his family’s safety. According to both Cuffy and his neighbor, Cuffy specifically told Moretti that he intended to move his family out of its upper floor apartment immediately if an arrest was not made. In response, Moretti told Cuffy that he should not worry and that an arrest would be made or something else would be done about the situation "first thing in the morning.” Cuffy then went back to his family and instructed his wife to unpack the family’s valises, thereby signifying his intention to remain in the house. Despite Lieutenant Moretti’s assurances, the police did not, in fact, undertake any further action in response to Cuffy’s complaint.

At approximately 7:00 p.m. on the following evening, the Cuffys’ son Ralston, who did not live with his parents, came to their house for a visit. Immediately after Ralston alit from his car, Joel Aitkins accosted him and the two men had an altercation, which culminated in Ralston’s being struck with a baseball bat. Eleanor Cuffy, who observed the fight from her upstairs window, and another son, Cyril, rushed to Ralston’s rescue. Barbara Aitkins then joined in the attack, slashing at both Eleanor and Cyril with a knife. Joseph Cuffy, who had come home from work at about 6:30 and then gone to his neighbor’s house, arrived at the scene while the fight was in progress, but was not in time to avert the harm. By the time the fight was over, all three Cuffys had sustained severe injuries.

Eleanor, Cyril and Ralston Cuffy thereafter commenced this action against the City, alleging that the police had a "special duty” to protect them because of the promise that Lieutenant Moretti had made on the night preceding the incident (see, Sorichetti v City of New York, supra). The ensuing trial ended in a verdict awarding each of the plaintiffs substantial damages. The City appealed to the Appellate Division, which unanimously affirmed the judgment, without opinion. We conclude, however, that the judgment should have been reversed.

As a general rule, a municipality may not be held liable for injuries resulting from a simple failure to provide police protection (see, e.g., Weiner v Metropolitan Transp. Auth., 55 NY2d 175). This rule is derived from the principle that a municipality’s duty to provide police protection is ordinarily one owed to the public at large and not to any particular individual or class of individuals (Moch Co. v Rensselaer Water Co., 247 NY 160). Additionally, a municipality’s provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175, supra). Consequently, we have generally declined to hold municipalities subject to tort liability for their failure to furnish police protection to individual citizens.

There exists, however, a narrow class of cases in which we have recognized an exception to this general rule and have upheld tort claims based upon a "special relationship” between the municipality and the claimant (De Long v County of Erie, 60 NY2d 296, 304; see, e.g., Sorichetti v City of New York, supra; Florence v Goldberg, supra; Schuster v City of New York, 5 NY2d 75). The elements of this "special relationship” are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking (see, Shinder v State of New York, 62 NY2d 945, 946; see also, Sorichetti v City of New York, supra, p 469; cf. Nallan v Helmsley-Spear, Inc., 50 NY2d 507).

As was made clear in Yearwood v Town of Brighton (101 AD2d 498, affd 64 NY2d 667), the injured party’s reliance is as critical in establishing the existence of a "special relationship” as is the municipality’s voluntary affirmative undertaking of a duty to act. That element provides the essential causative link between the "special duty” assumed by the municipality and the alleged injury. Indeed, at the heart of most of these "special duty” cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him either to relax his own vigilance or to forego other available avenues of protection (see, De Long v County of Erie, supra, p 305; Florence v Goldberg, supra, p 197). On the other hand, when the reliance element is either not present at all or, if present, is not causally related to the ultimate harm, this underlying concern is inapplicable, and the invocation of the "special duty” exception is then no longer justified.

Another element of the "special duty” exception is the requirement that there be "some direct contact between the agents of the municipality and the injured party” (Sorichetti v City of New York, supra, p 469; see, Helman v County of Warren, 67 NY2d 799, affg 111 AD2d 560). This element, which is conceptually related to the reliance element, exists first as a natural corollary of the need to show a "special relationship” between the claimant and the municipality, beyond the relationship with government that all citizens share in common. In addition, the "direct contact” requirement serves as a basis for rationally limiting the class of citizens to whom the municipality’s "special duty” extends (cf. White v Guarente, 43 NY2d 356).

As a rule based partially on policy considerations, the direct contact requirement has not been applied in an overly rigid manner. Thus, in Sorichetti v City of New York (supra), a case involving a preexisting judicial order of protection, we allowed recovery for an infant’s injuries, although it was the infant’s distraught mother, and not the injured infant, who had the direct contact with the law enforcement officials. Our deviation from the "direct contact” requirement in that case, however, may be explained by the close relationship between the interests of the mother and those of the child, as well as by the fact that the mother’s contact with the police had been initiated solely for the purpose of obtaining protection for the child, who was herself helpless. Moreover, the presence of a judicial order of protection contributed to our conclusion in Sorichetti that an actionable relationship existed (see, 65 NY2d, p 469). In any event, what Sorichetti and similar "special duty” cases teach is that the proper application of the "direct contact” requirement depends on the peculiar circumstances of each case, all of which must be considered in light of the policies underlying the narrow "special duty” doctrine.

In this case, the requirement that there be some direct contact with an agent of the municipality is fatal to the cause of action asserted by plaintiff Ralston Cuffy, the older son who was not a member of Joseph and Eleanor Cuffy’s household and did not himself have any direct contact with the police. The absence of direct contact is dispositive of Ralston’s claim for two reasons. First, unlike in Sorichetti, none of the factors militating in favor of relaxing the "direct contact” requirement are present in his case. Since Ralston did not live in the Cuffy’s home, his interests were not tied to those of the rest of his family, and it cannot be said that the assurances of protection his father had received directly from Lieutenant Moretti were obtained on his behalf. Accordingly, Ralston’s connection to the official promises that form the basis of this action is simply too remote to support recovery.

Second, and perhaps more importantly, there was no indication that Ralston even knew of the promise of protection that his father had received. His presence at the house on the day of the incident was thus merely an unfortunate coincidence and, in any event, was certainly not the result of his own reliance on any promise of protection that the police might have made (see, Helman v County of Warren, supra; Yearwood v Town of Brighton, supra). In the absence of such reliance, his claim is insufficient as a matter of law.

The claims asserted against the City by Eleanor and Cyril Cuffy present a more complex problem. Although neither of those parties had "direct contact” with the public servant Who had promised to provide the family with protection, the "special duty” undertaken by the City through its agent must be deemed to have run to them. It was their safety that prompted Joseph Cuffy to solicit the aid of the police, and it was their safety that all concerned had in mind when Lieutenant Moretti promised police assistance. It would thus be wholly unrealistic to suggest that Eleanor and Cyril Cuffy were in no different position from any other citizen or that the City owed them no "special duty” simply because Joseph Cuffy, rather than they, had been the party who had "direct contact” with Lieutenant Moretti (cf. Sorichetti v City of New York, supra).

Nonetheless, Eleanor and Cyril Cuffy’s recovery is precluded for the entirely separate reason that, as a matter of law, their injuries cannot be deemed to have been the result of their justifiable reliance on the assurances of police protection that Joseph Cuffy had received. It is true that the evidence supported an inference that both of these plaintiffs remained in the house during the night of July 27, 1981 and throughout the following morning primarily because of their reliance on Lieutenant Moretti’s promise to Joseph that Joel Aitkins would be arrested or something else would be done "first thing in the morning.” However, Ms. Cuffy also testified that she had periodically looked out her front window throughout the day of the incident and had not seen any police cars pull up in front of her house and that she continued to be nervous about the situation. Thus, plaintiffs’ own evidence established that by midday on July 28th Ms. Cuffy was aware that the police had not arrested or otherwise restrained Mr. Aitkins as had been promised.

This evidence was sufficient, as a matter of law to defeat any colorable claim that Eleanor and Cyril Cuffy’s injuries were the result of any justifiable reliance on the lieutenant’s assurances. Although both of them knew or should have known by midday that the promised police action would not be forthcoming, they remained in the house hours after any further reliance on those assurances could reasonably be deemed justified. It was this continued presence in the house and the consequent continued exposure to danger that ultimately led to their participation in the melee, which was prompted, in the immediate sense, by Ralston’s arrival and his unfortunate confrontation with Aitkins.

In this regard, it is noteworthy that, according to the uncontradicted evidence, Ms. Cuffy had entertained relatives that day, her husband had been in and out of the house twice that very evening and the couple had plans to go out to dinner later that night. Thus, it certainly cannot be said that, having remained in the house overnight in reliance on the officer’s promise, the family was thereafter trapped and unable to take steps to protect itself when its members knew or should have known that police assistance would not be forthcoming.

It may well be that the police were negligent in misjudging the seriousness of the threat to the Cuffys that the Aitkinses’ continued presence posed and in not taking any serious steps to assure their safety. It may also be that the police had a "special duty” to Eleanor and Cyril Cuffy because of the promise that Lieutenant Moretti had made and those plaintiffs’ overnight, justifiable reliance on that promise. It is clear, however, that those plaintiffs’ justifiable reliance, which had dissipated by midday, was not causally related to their involvement in the imbroglio with the Aitkinses on the evening of July 28th. Thus, they too failed to meet the requirements of the doctrine allowing recovery for a municipality’s failure to satisfy a "special duty,” and their claims, like those of Ralston Cuffy, should have been dismissed.

For all of the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      Lieutenant Moretti had died before the trial of this action and was therefore unavailable to confirm Cuffy’s version of the conversation. However, Officer Pennington, who had returned from the field, was present at the precinct that night and was able to confirm that Cuffy had spoken to Moretti, although he never got close enough to overhear what was said.