author: Fuchsberg, J. Wachtler, J.

text:
    The People of the State of New York, Appellant, v Imogene Graham, Respondent.
    Argued January 4, 1982;
    decided February 18, 1982

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer, Robert M. Pitler and Bruce Allen of counsel), for appellant.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Parks, 41 NY2d 36.) The Trial Judge properly refused to submit to the jury a question of the “voluntariness” of one of defendant’s statements, based solely on defendant’s claim that she was not given proper Miranda warnings before she made that statement. (People v Kennedy, 159 NY 346; People v Weiner, 248 NY 118; People v Kazmarick, 52 NY2d 322; People v Palumbo, 49 NY2d 928; Dunaway v New York, 442 US 200; 35 Park Ave. Corp. v Campagna, 48 NY2d 813; People ex rel. Fitch v Lord, 9 App Div 458; People ex rel. Pintler v Transue, 74 Misc 504; People ex rel. French v Lyke, 159 NY 149.)

      William E. Hellerstein for respondent.
    The court below correctly held that the trial court’s belief that the Legislature had made a mistake did not authorize the trial court’s refusal to charge the jury on involuntariness, as required by the plain and unambiguous language of the statute. (Meltzer v Koenigsberg, 302 NY 523; McCluskey v Cromwell, 11 NY 593; Department of Welfare of City of N. Y. v Siebel, 6 NY2d 536, 361 US 535; Matter of Rathscheck, 300 NY 346; Allen v Minskoff, 38 NY2d 506; Lawrence Constr. Corp. v State of New York, 293 NY 634; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357; Zachary v Macy & Co., 39 AD2d 116, 31 NY2d 443; Triborough Bridge & Tunnel Auth. v Crystal & Son, 2 AD2d 37, 2 NY2d 961; People ex rel. Doctors Hosp. v Sexton, 267 App Div 736, 295 NY 553.)
   OPINION OF THE COURT

Fuchsberg, J.

We are called upon to decide whether the court of first instance in this case was free to refuse defendant’s request, made pursuant to CPL 60.45 and 710.70, that it submit the voluntariness of defendant’s incriminating statement to the jury when the attack on it was based solely on proof in support of a claim that the police officer to whom it was made failed to advise the defendant of her constitutional rights as required by Miranda v Arizona (384 US 436).

The defendant, Imogene Graham, was arrested in a tavern on Manhattan’s upper West Side by a police officer when a purse containing packets of heroin was found lying on the table at which she had been sitting. As pertinent here, the officer was to testify at trial that he had seen her abandon the purse; but, Ms. Graham, who previously had never been convicted of a crime, took the stand to swear that she had been unaware of the contents of the purse, that it belonged to another young woman, whose name, Teresa Black, was inscribed on the purse, and that it was Ms. Black who had left it on the table.

The officer also testified that, as he was taking Ms. Graham to the station house in his police car, he asked her, “Who are you holding the stuff for?” and that she answered, “No, no, he’ll kill me. He’ll kill me.” Although the officer stated that he had informed Ms. Graham of her other rights before he and she engaged in this colloquy, he also described how he had failed to advise her that she had a right to counsel before she answered any questions, the omission having occurred, as he explained it, because, having “informed her that the court would provide an attorney for her, I assumed she would know what that means”. For her part, defendant insisted that she received no warnings at all before the questioning in the police car and that the officer’s version of the statement she made was inaccurate.

On this record, at the close of defendant’s case, her counsel requested the court to charge the jury on the voluntariness of the statement. He also requested permission to argue the issue during summation. But, although the prosecutor agreed that the Criminal Procedure Law required such an instruction, the Trial Judge, who, in response to a pretrial motion to suppress the statement, earlier had ruled that defendant had knowingly waived her privilege against self incrimination, rejected both applications.

The procedural predicate for defendant’s requests is to be found in CPL 60.45 and 710.70. Together, these govern the admissibility of defendants’ confessions, admissions and other statements. Specifically, CPL 60.45 (subd 2, par [b], cl [ii]) says in so many words that a statement is involuntary when it is obtained from a defendant “by a public servant engaged in law enforcement activity * * * in violation of such rights as the defendant may derive from the constitution of this state or of the United States.” And, in interlocking fashion, CPL 710.70 (subd 3) not only allows a defendant, notwithstanding an adverse pretrial ruling, to attempt at trial to establish that the statement “was involuntarily made within the meaning of section 60.45”, but goes on to provide that “[i]n the case of a jury trial, the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made” (emphasis added).

In refusing to follow what he acknowledged was the “very literal language of the statute[s]”, the Trial Judge, who had been executive director of the State commission which drafted the Criminal Procedure Law, essentially took the position that the sufficiency of compliance with the dictates of Miranda v Arizona is a question of law, that therefore “the legislature never could have intended” that such an issue be litigated before a jury, that the statutory scheme contemplated only “traditional involuntariness in the sense of duress”, and that, in indicating otherwise, CPL 710.70 represents a “statutory defect”, “a statutory error of almost a typographical nature”.

The voluntariness issue having thus been kept from the jury, which thereafter found the defendant guilty of criminal possession of a controlled substance in the second degree (Penal Law, § 220.18), this was to be the overarching issue on which the judgment entered upon the conviction was reversed and a new trial granted by the Appellate Division. Other than to note the police officer’s concession with regard to the shortfall in his advice to the defendant on her right to counsel, the court’s memorandum for reversal centered on its holding that the statutory language was controlling. On the People’s appeal to us, here by leave of a Judge of this court (CPL 460.20), we now find the Appellate Division’s determination was correct. Our reasons follow.

At the outset, we observe that the enactment of CPL 60.45 on its face would appear to evince a legislative intent to expand the concept of “involuntary statement” beyond its traditional scope. Its predecessor, the old Code of Criminal Procedure (§ 395), excluded from evidence only confessions “made under the influence of fear produced by threats, or * * * made upon a stipulation of the district attorney, that [defendant] shall not be prosecuted therefor”. Assuming the Legislature had chosen to limit itself to these instances of “actual” involuntariness, it need only have enacted paragraph (a) and clause (i) of paragraph (b) of subdivision 2 of the present statute, which cover both the coercive and promissory elements of the code section it replaced. By enacting clause (ii) of paragraph (b), by which statements obtained “in violation of such rights as the defendant may derive from the constitution” were added, the Legislature brought the concept of involuntarily made statements beyond its traditional confines.

Moreover, that the expanded boundary included the kind of involuntariness within which the claim made by the present defendant falls is not without historical support. When CPL 60.45 was enacted in its present form in 1970, it followed two hardly unrelated legal events. One, in 1964, was the United States Supreme Court’s decision in Jackson v Denno (378 US 368), in response to which New York revolutionized its procedure for determining the voluntariness of a defendant’s confession (People v Huntley, 15 NY2d 72). The second, in 1966, was the emphasis the then newly prescribed Miranda warnings placed on deterrence of self incrimination which flows from a defendant’s ignorance of his constitutional rights (Miranda v Arizona, 384 US 436, 478-479, supra).

Significantly, even the Trial Judge in the present case, when he authored the practice commentary “which in 1970 accompanied the newly enacted CPL 60.45, opined that the statute had been rewritten to comprehensively blanket “not only all forms of actual voluntariness (e.g., physical force) but also all forms of what the United States Supreme Court has stamped involuntariness in a legal or constructive sense (e.g., failure to give Miranda warnings)” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A [1971], CPL 60.45, p 259). That this was no aberrational comment is certified by recourse to the 1968 draft of the proposed section. Its definition of involuntariness, instinct with sensitivity to Miranda, incorporated reference to statements obtained “without first effectively advising the defendant of and according him such rights as he may derive from the constitution of this state or of the United States with respect to the making of a statement” (Seventh Interim Report of NY Temporary Comm on Revision of Penal Law and Criminal Code [1968], p 51). In the end, of course, the Legislature chose not merely the more abbreviated but also the more comprehensive language of the present CPL 60.45 (subd 2, par [b], cl [ii]).

Nor is CPL 710.70 divorced from this history. It codified this court’s Huntley holding, by which, in the wake of Jackson v Denno (supra), New York adopted the so-called “Massachusetts procedure” for determining the voluntariness of a defendant’s confession. Under this procedure, the Trial Judge makes a full determination of voluntariness and submits the confession to the jury only if the statement is found voluntary; in that event, the jury is instructed not to give any weight to the statement unless it finds it voluntary (Jackson v Denno, supra, pp 378-379). More to the point, CPL 710.70’s reference to CPL 60.45 is without limitation or exception. It therefore would distort what it plainly says, were we to selectively apply it only to CPL 60.45 (subd 2, pars [a], [b], cl [i]). Put another way, as written, the statutes mandate that any issues of voluntariness set out in 60.45 may go to the jury.

Thus, even if the statutory history we have recounted were nonexistent, the clarity and unambiguity of the language of both CPL 60.45 and 710.70 would have made it inappropriate to delve into what at times is an ill-defined legislative intent (Department of Welfare of City of N. Y. v Siebel, 6 NY2d 536, 543; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 71, 76; but see New York State Bankers Assn. v Albright, 38 NY2d 430). This is all the more so because “there is no necessary correlation between what the draftsman of the text of a bill understands it to mean and what members of the enacting legislature understand” (2A Sutherland, Statutory Construction [4th ed, Sands], §§ 48.09, 48.12). When the Legislature enacted the statutes and when the Governor signed them into law, they stood for what their words manifested and not the inner thoughts of a draftsman or adviser. After all, it was the words, not the thoughts which were to “influence the conduct of others” (Gardiner, Speech and Language [Oxford, 1932], p 19). As F. Vaughan Hawkins put it in his classical work on statutory interpretation, while a legal act “originates in intention, it is perfected by expression” (Principles of Legal Interpretation, reproduced in Appendix C, at p 581 of Thayer, Preliminary Treatise on Evidence at the Common Law).

Nor do we deal here with a clerical or typographical error (e.g., People ex rel. French v Lyke, 159 NY 149 [omission of the word “or” rendering subsequent clause of statute meaningless]; People ex rel. Fitch v Lord, 9 App Div 458 [mistakenly referring to the unrelated statutory chapter number “329” instead of “339”]). It would be a matter of reductio ad absurdum to equate the unconfusing substantive mandate of CPL 710.70 with a mechanical inadvertence.

Not deterred by the defendant’s ready rebuttal of the arguments we already have reviewed, the People also press the view that an issue such as police compliance with constitutional rights is not one suitable for a lay jury to decide. Rejecting this denigration of the jury system, the defendant strongly suggests that, if, as in the case before us now, the question is whether a defendant was adequately advised of her rights, the jury can easily be instructed on what Miranda requires, just as it traditionally and regularly is instructed on an endless number of no less subtle legal propositions. Thus analyzed, the role of the jury, of course, is not to pass on rules of law, but merely to decide the questions of fact to which given rules are to be applied.

This is not to say that the present predelictions of the Trial Judge, of the People or of others who share their opinions are to be discounted. So, if they are unhappy with the statutory status quo, if the submission of issues which now go to the jury “seems unwise, unreasonable or undesirable, the argument for change is to be addressed to the Legislature, not to the courts” (People v Kupprat, 6 NY2d 88, 90). And, to this end, it well may be meet for those who subscribe to these criticisms to invite consideration of the subject by the Advisory Committee on Criminal Law and Procedure of the Chief Administrator of the Courts. But, until and unless the cogency of the arguments of those who would amend the statutes is accepted and acted upon by legislative and gubernatorial authority, the laws on the books now “ ‘must be read and given effect as [they were] written by the Legislature, not as the court may think it should or would have written [them]’ ” (Allen v Minskoff, 38 NY2d 506, 511, quoting Lawrence Constr. Corp. v State of New York, 293 NY 634, 639). In sum, ‘“[t]he office of interpretation is to bring sense out of the words used, and not bring a [different] sense into them.’ ’’ (Meltzer v Koenigsberg, 302 NY 523, 525, quoting McCluskey v Cromwell, 11 NY 593, 601-602; McKinney’s Cons Laws of NY, Book 1, §§71, 76; see, generally, Frankfurter, Some Reflections on the Reading of Statutes, 47 Col L Rev 527, 533.)

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

Wachtler, J.

(concurring). I agree that a literal reading of the two statutes requires the court to submit to a jury any question as to whether defendant’s confession was obtained in violation of his rights under Miranda v Arizona (384 US 436). I am troubled, however, by the fact that there does not appear to be any rational explanation for this requirement. The Supreme Court has never held that this is required under the Miranda decision. Nor is it mandated by our State Constitution, which only guarantees the defendant a right to a jury trial concerning his confession when he contends that it was involuntary in the traditional sense that he was coerced into making it. It appears that in codifying the procedure for truly involuntary confessions the Legislature inadvertently broadened it to include statements said to be “involuntarily made within the meaning of section 60.45” which includes Miranda issues. Nevertheless, if this is inadvertence, it can only be corrected by rewriting the statute (CPL 710.70, subd 3) and that is a matter solely within the Legislature’s control.

Chief Judge Cooke and Judge Meyer concur with Judge Fuchsberg; Judge Wachtler concurs in a separate opinion in which Judges Jasen and Gabrielli concur; Judge Jones taking no part.

Order affirmed.

      . The People also raise a harmless error argument, which we find to be without merit.

      . The full texts of CPL 60.45 and 710.70 are as follows:
      “§ 60.45 Rules of evidence; admissibility of statements of defendants
      “1. Evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made.

        “2. A confession, admission or other statement is ‘involuntarily made’ by a defendant when it is obtained from him:

      “(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or

      “(b) By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him:

        “(i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or

      “(ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States." (Emphasis added.)
      “§ 710.70 Motion to suppress evidence; orders of suppression; effects of orders and of failure to make motion
      “1. Upon granting a motion to suppress evidence, the court must order that the evidence in question be excluded in the criminal action pending against the defendant. When the order is based upon the ground specified in subdivision one of section 710.20 and excludes tangible property unlawfully taken from the defendant’s possession, and when such property is not otherwise subject to lawful retention, the court may, upon request of the defendant, further order that such property be restored to him.
      “2. An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.
      “3. A motion to suppress evidence made pursuant to this article is the exclusive method of challenging the admissibility of evidence upon the grounds specified in section 710.20, and a defendant who does not make such a motion before or in the course of a criminal action waives his right to judicial determination of any such contention.

        “Nothing contained in this article, however, precludes a defendant from attempting to establish at a trial that evidence introduced by the people of a pre-trial statement made by him should be disregarded by the jury or other trier of the facts on the ground that such statement was involuntarily made within the meaning of section 60.45. Even though the issue of the admissibility of such evidence was not submitted to the court, or was determined adversely to the defendant upon motion, the defendant may adduce trial evidence and otherwise contend that the statement was involuntarily made. In the case of a jury trial, the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made.” (Emphasis added.)

      . The inclusion of “undue pressure which impaired the defendant’s * * * ability to make a choice whether or not to make a statement” is a further indication of a concern that the defendant’s “choice” be an informed one. (CPL 60.45, subd 2, par [a].)

      . Under the “New York rule”, as it then was, the Trial Judge made a preliminary determination as to whether the evidence on involuntariness presented a factual conflict. If it did, the Judge received the confession and left it to the jury to decide on its voluntariness. In Jackson v Denno, the Supreme Court held the New York procedure violative of due process because of the danger that other matters pertaining to the defendant’s guilt would infect the jury’s finding on voluntariness. A third approach, the so-called “orthodox rule”, favored by Wigmore, calls upon the Trial Judge alone to decide on the voluntariness of the confession for purposes of admissibility, and, if it went in, allowed the jury to consider voluntariness only as affecting the weight or credibility of the confession (see 3 Wigmore, Evidence [Chadbourn rev, 1970], § 861; see Paone, New Trial Procedure on Confessions in New York, 50 Cornell LQ 461; Hagerty, An Analysis of the Procedures Used to Determine the Voluntariness of Confessions: and a Solution, 11 SD L Rev 70).


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    Ernest A. Long, Jr., Respondent, v Forest-Fehlhaber, Defendant-Appellant and Third-Party Plaintiff-Appellant. Walsh Corbetta Construction Company, Third-Party Defendant-Respondent.
    Argued January 6, 1982;
    decided February 18, 1982

      POINTS OF COUNSEL
    . William F. McNulty, Anthony J. McNulty and Frank J. Warner, Jr., for defendant-appellant and third-party plaintiff-appellant.
    I. The court below erred in holding that subdivision 6 of section 241 of the Labor Law, as amended in 1969, imposed an “absolute liability” on Forest-Fehlhaber which removed the issue of plaintiff’s own contributory negligence from the case. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Conte v Large Scale Dev. Corp., 10 NY2d 20; Major v Waverly & Ogden, 7 NY2d 332; Teller v Prospect Hgts. Hosp., 280 NY 456; Schumer v Caplin, 241 NY 346; Corbett v Brown, 32 AD2d 27; Monroe v City of New York, 67 AD2d 89; Lagzdins v United Welfare Fund-Security Div. Marriott Corp., 77 AD2d 585.) II. By conceding that contributory negligence was an issue in this case and failing to take due, timely and cognizant exception to the charge of Justice Pennock at the first trial, submitting the issue to the jury as one of fact, plaintiff has waived his right to claim — or at least should now be legally estopped from claiming — that his own contributory negligence is not an issue in this case. (Cullen v Naples, 31 NY2d 818; Davison v Klaess, 280 NY 252; Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34; MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824.)

      Martin Brickman for respondent.
    I. Forest-Fehlhaber’s violation of subdivision 6 of section 241 of the Labor Law establishes absolute liability. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Monroe v City of New York, 67 AD2d 89; Haimes v New York Tel. Co., 46 NY2d 132; Frattura v Cozzolino Constr. Corp., 63 AD2d 1098.) II. The issue of the applicability of subdivision 6 of section 241 of the Labor Law regardless of contributory negligence has been preserved for appeal. (Thomas v Kennedy Realty Corp., 279 App Div 216.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal calls upon us to say whether contributory negligence, as to pre-September, 1975 accidents, or comparative negligence, as to ones occurring since then, is a defense to an action premised on the violation of rules promulgated by the State Board of Standards and Appeals pursuant to subdivision 6 of section 241 of the Labor Law.

The issue arises in the following factual and procedural context: The plaintiff, Ernest A. Long, Jr., an experienced concrete finisher employed by the third-party defendant, Walsh Corbetta Construction Company, was injured at approximately 7:15 a.m. on February 3, 1975 at the construction site of the South Mall of the State Capitol in Albany. The occurrence took place when, while walking on the “pitch black” flooring of a temporary passageway which led to a shack in the area where he was to work, he tripped over an exposed electrical conduit. Long brought suit against the defendant, Forest-Fehlhaber, Joint Venture, the electrical contractor on the job, who, in turn, cross-complained against Walsh Corbetta. The case has now been tried twice.

At the first trial, the Judge sent the case to the jury essentially on the theory that, while Forest-Fehlhaber was at fault in failing to comply with Board of Standards and Appeals rule 23-1.30 (12 NYCRR 23-1.30), which governed illumination of the passageway involved, contributory negligence on the part of the plaintiff could be a Complete defense. Concordantly, the defendant had contended that Long, though he had every reason to expect midconstruction objects to be in his path, knowingly entered the yet unlit path on which he met with his injury some three quarters of an hour before the expected starting time for employees. The general verdict of the jury was for the defendant. But, the Appellate Division, deeming the charge on contributory negligence erroneous, modified, on the law, by reversing so much of the judgment as dismissed the cause of action grounded on a violation of subdivision 6 of section 241 of the Labor Law and dismissed the third-party compllaint and, as to each, ordered a new trial at which the sole liability issues were to be “(1) whether the defendant breached its duty under subdivision 6 of section 241 of the Labor Law ‘to provide reasonable and adequate protection and safety to the persons employed therein’ and (2) if such a breach be found, whether it proximately caused the plaintiff’s injuries” (74 AD2d 167, 172); Justice Staley filed a sole dissent.

It was on this theory, and under a specific instruction that Long’s own negligence would not be a defense, that the second trial ensued. On this occasion, the jury, its specific findings crystallized by special interrogatories submitted to it by the court, found that both defendant Forest-Fehlhaber and third-party defendant Walsh Corbetta had violated subdivision 6 and that, by way of apportionment under Dole v Dow Chem. Co. (30 NY2d 143), each was liable for one half of the damages to which the jury found the plaintiff was entitled.

On the present appeal by Forest-Fehlhaber, taken pursuant to CPLR 5601 (subd [d]) from the final judgment entered after the second trial, the nonfinal order by which the Appellate Division modified the judgment entered after the first trial is now before us for review. For the reasons which follow, we believe this order should be reversed.

We begin our analysis by noting that the Appellate Division, in holding contributory negligence alien to the case, expressly relied on an overliteral interpretation of the single use of the phrase “absolute liability” as it appeared in Allen v Cloutier Constr. Corp. (44 NY2d 290, 300) in a sentence stating that “the 1969 legislation [which amended section 241] fashions absolute liability upon an owner or contractor for a breach of the duties imposed by subdivisions 1 through 6 of section 241 irrespective of their control or supervision of the construction site”. In so construing these words, which, in the context of the Allen opinion, merely were intended to emphasize the nondelegable nature of the duties the newly enacted statute imposed on owners and contractors rather than to upgrade these duties, insufficient stress was laid on the remainder of the text, including, pertinently, the qualifying phrase “irrespective of their control or supervision” in the remainder of the very same sentence in which “absolute liability” appears. Indeed, not only had the immediately preceding sentence expressly referred to owners’ and contractors’ “nondelegable duty”, but the opening paragraph of the opinion defined the sole issue before the court to be “whether an owner or general contractor may be held to answer for the damages * * * absent a showing that they controlled, directed or supervised the work site”. Most decisively, Allen recognized that a violation of an administrative regulation, though promulgated by leave of a statute, is simply some evidence of negligence (Allen v Cloutier Constr. Corp., supra, at p 298).

Moreover, only some months later, in Haimes v New York Tel. Co. (46 NY2d 132, 136), after referring to the Legislature’s intent to place “ ‘ultimate responsibility for safety practices * * * where such responsibility actually belongs, on the owner and general contractor’ (NY Legis Ann, 1969, p 407)”, we stated that “[w]hatever doubt may have remained that it had succeeded in doing so as to section 241 was laid to rest by our recent decision in Allen v Cloutier Constr. Corp.”. In short, the thrust of Allen was that “ultimate responsibility” or “absolute liability” or “nondelegability” of the duty of an owner or general contractor under subdivision 6 of section 241, whatever the niceties of its articulation, was unavoidable only in the sense that it could not be delegated to another rather than, as the majority of the Appellate Division mistakenly assumed, that the owner or general contractor would not be allowed to raise any defense to the imposition of liability (see Monroe v City of New York, 67 AD2d 89, 103).

This, of course, is reinforced by the principle, long and firmly established in New York, that the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is “merely some evidence which the jury may consider on the question of defendant’s negligence” (Teller v Prospect Hgts. Hosp., 280 NY 456, 460). Unlike a violation of the explicit provisions of a statute proper, a breach of an administrative rule, because it does not establish negligence as a matter of law, does not render a plaintiff’s own negligence irrelevant and, therefore, unacceptable as a defense (Conte v Large Scale Dev. Corp., 10 NY2d 20, 29, citing Schumer v Caplin, 241 NY 346, 351).

That the case at bar cannot be regarded as one which arose from a statutory violation is evident. In contrast to the first five subdivisions of section 241, in which the Legislature set out specific safeguards on its own, subdivision 6 does no more than broadly provide that the owner and contractor see to it that the area where the work is to be performed is “so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety”. This language, which does not in terms provide how these ends are to be met, is, like subdivision 1 of section 200 of the Labor Law, but a reiteration of common-law standards (Allen v Cloutier Constr. Corp., supra, at p 299), the implementation of which is left to a subordinate body, the Board of Standards and Appeals. An illustrative contrast is available in section 240 of the Labor Law, a self-executing statute which, containing its own specific safety measures, does not defer to the rule-making authority of the board (Haimes v New York Tel. Co., supra).

In sum, since violation of the administrative rules adopted pursuant to the authorization of subdivision 6 of section 241 of the Labor Law cannot rise to the level of negligence as a matter of law, contributory negligence was, and comparative negligence now is, a defense to an action based on such a dereliction.

For all these reasons, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the case remitted to the Appellate Division for consideration of the facts.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

      . The effective date of New York’s comparative negligence law was September 1, 1975 (L 1975, ch 69, § 4).

      . Subdivision 6 of section 241 of the Labor Law provides:
      “Construction, excavation and demolition work. All contractors and owners and their agents, * * * when constructing or demolishing buildings or doing excavating in connection therewith, shall comply with the following requirements:

        * * *
      “6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The board [of Standards and Appeals] may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work *** shall comply therewith”.

      . Rule 23-1.30 reads as follows: “Illumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass”.
      Also charged to the jury was rule 23-1.7 (e) (12 NYCRR 23-1.7 [e]), which applied to “tripping and other hazards” and “passageways”.

      . The case was submitted to the jury under both subdivision 1 of section 200 and subdivision 6 of section 241 of the Labor Law. However, the Appellate Division’s modification was only as to the subdivision 6 of section 241 count. It affirmed the subdivision 1 of section 200 count, this section being merely a codification of the common-law duty to provide a safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299), thus bespeaking but a general norm of behavior.

      . CPLR 5601 (subd [d]) expressly states that a nonfinal order which is thus sought to be reviewed must be one which “necessarily affects” the final judgment from which the appeal is taken. In the present case, the alleged charge error at the first trial is one which, treating with whether contributory negligence is ever a permissible defense under subdivision 6 of section 241 of the Labor Law, presents an invariable law of the case issue whose determination for the appellant would eliminate a defense, which, as a practical matter, then would not, and should not, need to be reattended to at the new trial. Hence, the prior nonfinal order here may be said to have been one which “necessarily affected” or, as it also has been put, “vitally influenced” the judgment within the compass of CPLR 5601 (subd [d]) (Buffalo Elec. Co. v State of New York, 14 NY2d 453, 458).

      . Accordingly, Board of Standards and Appeals rule 23 (Industrial Code No. 23) does not even mention section 240, while section 240, correspondingly, says nothing of the board. On the other hand, subdivision 1 of section 200 states, in so many words, that “[t]he board may make rules to carry into effect the provisions of this section” and subdivisions 2 through 4 of that section place notice and enforcement authority in the hands of the State Industrial Commissioner to that end.


author: Fuchsberg, J. Meyer, J.

text:
    Country-Wide Insurance Company, Appellant, v Nieves Rodriguez, an Infant by Rosa Rodriguez, Her Mother and Natural Guardian, et al., Respondents.
    Argued January 5, 1982;
    decided February 18, 1982

      POINTS OF COUNSEL

      Bernard Samuels and Eric M. Alderman for appellant.
    I. North Carolina had no provision for minimum liability coverage of $15,000/$30,000 for a properly registered and insured New York automobile in compliance with New York Motor Vehicle and Traffic Law and, therefore, subdivision 5 of section 672 of the Insurance Law was not applicable to this case. II. Should this court agree with appellant’s position in point I that North Carolina law provided no basis for reformation of plaintiff’s New York insurance policy to any higher amount than was specified therein as being required pursuant to subdivision 5 of section 672 of the Insurance Law, it should nevertheless proceed to interpret that statute as an exception to the doctrine of mootness. In such event the statute should be construed as imputing and continuing the words “when applicable in accordance with New York law as opposed to those of another State”. (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Central Hanover Bank & Trust Co. v Commissioner of Internal Revenue, 159 F2d 167; Auten v Auten, 308 NY 155; Neumeier v Kuehner, 31 NY2d 121; Farber v Smolack, 20 NY2d 198; Miller v Miller, 22 NY2d 12; Wierbinski v State Farm Mut. Auto. Ins. Co., 477 F Supp 659; Mindell v Travelers Ind. Co., 46 AD2d 263.) III. Assuming arguendo that the coverage provisions of North Carolina law apply, the pertinent insurance contract provision is nothing more than a guarantee by the insurer of financial responsibility of its insured with a concomitant indemnity agreement running from the insured to the insurer. (MacArthur Bros. Co. v Kerr, 213 NY 360; Reitz v Mealey, 314 US 33; Kesler v Department of Public Safety, 369 US 153; Perez v Campbell, 402 US 637; Standard Acc. Ins. Co. of Detroit v Solomon, 195 Misc 48; Travelers Ins. Co. v Russo, 155 Misc 589; Stuyvesant Ins. Co. v Renaldo, 41 Misc 2d 285; Bakker v Aetna Life Ins. Co., 148 Misc 162, 240 App Div 880, 264 NY 150.)

      Seymour Berkowitz and Richard Godosky for respondents.
    Subdivision 5 of section 672 of the New York State Insurance Law and the purpose and intent of the Legislature in enacting the aforesaid legislation should be the determining factor in interpreting the legislation and dis-positive of the issue of the amount of the insurance coverage afforded under the policy issued by plaintiff-appellant. (Mindell v Travelers Ind. Co., 46 AD2d 263, 38 NY2d 815; Wierbinski v State Farm Mut. Auto. Ins. Co., 477 F Supp 659.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal calls upon us to construe subdivision 5 of section 672 of our Insurance Law, which mandates that the compulsory liability coverage required of the owner of every New York automobile include “insurance coverage for such motor vehicle at least in the minimum amount required for such vehicle by the laws of [any] other state or Canadian province” when the vehicle is “used or operated” in such foreign jurisdiction; in substance, Insurance Department regulations have implemented this provision by reading it into every owner’s policy (11 NYCRR 60.1 [e]). In applying subdivision 5 to the present case, of necessity we also must examine the pertinent laws of North Carolina, the State in which the events which led to this controversy arose.

The plaintiff, Country-Wide Insurance Company, is the liability carrier under a policy issued to defendant Louis Padilla on a passenger car registered to him in New York. The liability limits, broadly stated, are $10,000 for injuries to any one person and $20,000 for all persons injured in a single accident, the minima required by subdivision 2-a of section 167 of the Insurance Law. While the policy was in force, Padilla was driving his automobile in North Carolina when he was involved in a collision in which one of his passengers, Nieves Rodriguez, an infant, was injured. There followed a suit in Supreme Court, Bronx County, by young Rodriguez and her mother against Padilla and, as called for by the policy, defended by Country-Wide. It eventuated in the entry of a $100,000 judgment for the child.

In the present action, Country-Wide, joining the child, the mother and Padilla as defendants, seeks a declaration that the limit of its obligation is to pay $10,000 towards the satisfaction of the judgment and not $15,000, the minimum insurance limit generally provided for injury to one person under North Carolina’s compulsory statutory scheme (see NC Gen Stats, §§ 20-309, 20-279.1, subd [11]). By way of alternative relief, Country-Wide asks that, in the event of an unfavorable determination, Padilla indemnify it for the $5,000 differential.

On cross motions for summary judgment, Special Term granted defendants Rodriguez’ motion, dismissed CountryWide’s complaint, inclusive of its quest for indemnity, and declared that the policy afforded the $15,000 coverage (103 Misc 2d 906). The Appellate Division, one Justice dissenting, has since affirmed, essentially on the simple proposition that our statute “has chosen to adopt the North Carolina minimum” (80 AD2d 130, 133).

On Country-Wide’s further appeal, taken pursuant to CPLR 5601 (subd [a], par [i]), it presses its arguments, inter alia, that North Carolina exempts nonresident vehicles, i.e., those not registered in North Carolina, from its compulsory insurance requirements; that subdivision 5 of section 672 is concerned with financial security and not liability coverage; that, since the passengers and their host were all New York residents, whose relationships and expectations were determined in New York, and since their presence in North Carolina as they were passing through that State at . the time of the accident was fortuitous, the need to apply subdivision 5 of section 672 was obviated; that, in any event, since there was no proof that any sanctions, whether by way of the imposition of security or suspension of driving privileges or otherwise, were ever levied on Padilla by North Carolina as a consequence of the accident, that State’s minimum limits, assuming they were within the scope of subdivision 5 of section 672, never came into play; and that, though its assured, under the policy’s surety clause, would have to reimburse Country-Wide for any obligation it might undertake by using its New York minimum policy as proof of nonresidential financial responsibility, its obligation to make it available in the first instance constituted compliance with North Carolina law. For the reasons which follow, we nevertheless conclude that the result reached by the Appellate Division should be upheld.

Our analysis first focuses on subdivision 5 of section 672 of the Insurance Law, which was part of the complex of statutes which came into existence with the enactment of the New York “No-Fault Law” (L 1973, ch 13, § 1). These statutes, as did others of the same ilk which have proliferated in almost every State since the 1960’s, reflected a felt need to provide a more adequate and efficient system of financial responsibility for compensating victims of automobile accidents (see Montgomery v Daniels, 38 NY2d 41, 50). It therefore would be unthinkable to assume that our legislators were not conscious of and concerned with the hazards the owners and other occupants of New York automobiles would face when they ventured into States (or Canadian provinces) whose laws specified different, and perhaps higher, minimum liability levels (see, generally, Conrad, Morgan, Pratt, Jr., Voltz and Bombaugh, Automobile Accident Costs and Payments [Univ of Mich Press]).

Turning to the North Carolina statutes, we immediately observe that, as a prerequisite for registration of a motor vehicle, an owner must certify to financial responsibility (NC Gen Stats, “Vehicle Financial Responsibility Act of 1957”, § 20-309, subd [a]). Such certification requires proof either of a liability insurance policy or a qualitatively equivalent security deposit or self-insured status, each designed to meet the quantitative minimum liability limits of $15,000/$30,000 (NC Gen Stats, § 20-309, subd [b]; § 20-279.1, subd [11]).

True, New Yorkers driving through North Carolina do not have to meet the State’s registration requirements (see n 1, supra). But this is the beginning and not the end of possible penalties, sanctions and forfeitures to which other provisions of the North Carolina statutes expose them. For, in the event of an accident, a series of alternatives which can be most onerous for the nonresident owner or operator are set in motion. In such circumstances, article 9A of the Motor Vehicle Law of North Carolina, entitled “The Motor Vehicle Safety and Financial Responsibility Act of 1953”, mandates that the operating privileges of the nonresident owner or operator involved be suspended (NC Gen Stats, § 20-279.5, subd [b]; see, generally, Faizan v Grain Dealers Mut. Ins. Co., 254 NC 47). Unless the Commissioner of Motor Vehicles receives satisfactory evidence within 20 days after receipt of an accident report that a formal release, settlement or adjudication of nonliability has been obtained (no doubt a rare accomplishment in so short a time span), avoidance of suspension hinges on the ability of a driver to deposit such sum, up to $15,000 for one person’s injury or death or $30,000 for any one accident, as the commissioner finds sufficient to secure payment of judgments for any damages (see NC Gen Stats, § 20-279.5, subd [a]; and § 20-279.9).

Most significantly, possession of a liability policy circumvents all this license suspending and security posting, only “provided, however, every such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and cost, of not less than fifteen thousand dollars ($15,000) because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, to a limit of not less than thirty thousand dollars ($30,000) because of bodily injury to or death of two or more persons in any one accident” (NC Gen Stats, § 20-279.5, subd [c] [emphasis added]), such coverage, of course, being, to track our subdivision 5 of section 672, “the minimum amount required for such vehicle by xthe laws of [North Carolina]”. (See, also, NC Gen Stats, § 20-279.20, subd [a], par [2], which mandates that the nonresident’s certificate of financial responsibility provided by a carrier state that the policy “shall be deemed to conform with the laws of this State relating to the terms of motor vehicle liability policies issued herein”.)

As a practical matter then, the “exemption” of nonresident vehicles by North Carolina, while technically possible, is hardly short of illusory. For, the net result is that, although North Carolina, strictly speaking, does not require nonresidents to carry insurance in the limits prescribed by it ab initio, in the end the nature of its over-all plan is such that any State concerned with shielding its motorists, as New York obviously was when it adopted subdivision 5 of section 672, could hardly have failed to insist on the ultimate security of the North Carolina insurance limits within the out-of-State protection it mandated. It therefore would be unrealistic in the extreme to suppose, as the appellant here would have us do, that our Legislature intended instead to subject the hundreds of thousands of its motor vehicle owners who drive across State lines each year to the other burdens.

Also, in light of the overriding purpose of subdivision 5 of section 672, whether the potential liabilities óf the appellant stem from the financial security or compulsory insuranee sections of North Carolina law or from a combination of both, is, at best, a consideration of form rather than substance. And, as to the appellant’s surety clause contention, it seems especially inconsistent with the language of subdivision 5 of section 672 to suggest that our Legislature ever intended to impose ultimate personal liability on New York drivers for the differential between our minimum limits and those of foreign jurisdictions, be it $5,000 or even more.

Nor are we moved to any different determination in this case because, for unexplained reasons, be they intentional or inadvertent in character, the North Carolina Commissioner of Motor Vehicles here did not exercise the right to suspend or fix the amount of security. The obvious answer to this contention is that the risks contemplated by subdivision 5 of section 672 were those envisioned in prospect, not in retrospect.

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

Meyer, J.

(dissenting). Because the majority’s holding misconstrues both the New York and the North Carolina statutes, I respectfully dissent.

Subdivision 5 of section 672 of the Insurance Law requires that “Every owner’s policy of liability insurance issued in satisfaction of articles six or eight of the vehicle and traffic law shall also provide, when a motor vehicle covered by such policy is used or operated in any other state or in any Canadian province, insurance coverage for such motor vehicle at least in the minimum amount required for such vehicle by the laws of such other state or Canadian province.” In total disregard of the words “for such * * * vehicle” in that subdivision the Appellate Division majority stated that “North Carolina at the time of this accident required residents and nonresidents to be insured for an amount not less than $15,000” (80 AD2d 130, 131; italics supplied) and concluded that North Carolina’s law “imposes a requirement on the nonresident of conforming to the minimum amount of insurance coverage mandated by the laws of North Carolina” (80 AD2d 130, 134; italics supplied). Not only was that an incorrect application of the New York law but also it misinterprets the North Carolina statutes. The majority in this court, recognizing in part the Appellate Division’s error, admits that (p 168) “North Carolina, strictly speaking, does not require nonresidents to carry insurance in the limits prescribed by it ah initio,” but concludes that “the nature of [the] over-all plan is such that * * * New York * * * could hardly have failed to insist on the ultimate security of the North Carolina insurance limits”. Thus, though correctly conceiving what the North Carolina statute does, the majority nevertheless sustains the Appellate Division’s result, ignoring not only the phrase “for the vehicle” in our statute, but the word “required” (which relates not to what New York might have required but what North Carolina law required) in that statute as well.

The simple facts are that our statute does not say “in the minimum amount that would be required for such vehicle if it were registered in such other state,” and that North Carolina has not one but two financial responsibility acts, one (the 1957 act) relating to registration of vehicles and requiring a liability policy with a minimum of $15,000 (NC Gen Stats, § 20-309), and the other (the 1953 act) relating to the license of the operator or owner of a motor vehicle involved in “a motor vehicle accident within this State which has resulted in bodily injury or death or damage to the property of any one person in excess of two hundred dollars”, but which does not require the filing of security or other proof of financial responsibility until after such an accident (NC Gen Stats, § 20-279.5).

As the majority’s footnote 1 acknowledges, a passenger vehicle registered in New York is not required to be registered in North Carolina (NC Gen Stats, §§ 20-4.8, 20-51, subd [1]), unless its owner takes up permanent or temporary residence in that State extending beyond 30 days (NC Gen Stats, § 20-4.6; see § 20-313). The Padilla vehicle was, however, simply in transit through North Carolina on the way to Florida. Therefore, the $15,000 minimum provided for in the 1957 statute was not “required for such [Padilla’s] vehicle by the laws of” North Carolina within the meaning of subdivision 5 of section 672 of the Insurance Law.

The 1953 statute, on the other hand, while it does not require insurance coverage for any vehicle, does provide for the suspension of a nonresident’s privilege of operating a motor vehicle in North Carolina. Suspension can only occur, however, after the nonresident operator has had an accident and has failed to present to the commissioner evidence of a release from liability, a final adjudication of nonliability, or a written agreement for the payment of an agreed amount, or to deposit the amount of security the commissioner deems sufficient to satisfy any and all judgments for damages resulting from the accident (NC Gen Stats, § 20-279.5, subds [a], [b]; see, also, §§ 20-21, 20-22). The suspension provisions of the 1953 act do not apply, however, under the conditions stated in subdivision (c) of section 20-279.5 and section 20-279.6. One such condition is the existence of a liability policy or bond covering the vehicle or its owner or operator “to a limit, exclusive of interest and cost [sic], of no less than fifteen thousand dollars” (NC Gen Stats, § 20-279.5, subd [c]). Clearly, therefore, the 1953 act does not, either before or after an accident, require that a nonresident operator driving a vehicle registered in his State of residence, who has not resided in North Carolina for more than 30 days, be insured in any amount. All that it does is excuse such a nonresident driver from the suspension after an accident of his nonresident’s privilege of operating a vehicle in North Carolina on a number of bases, one of which is that at the time of the accident he had insurance with a $15,000 minimum. To be noted, furthermore, is the fact that suspension is in any event not immediate or automatic; section 20-279.5 does not authorize suspension until the expiration of 20 days after receipt of a report of the accident or permit a notice of suspension to become effective until not less than 10 days after it is sent to the operator or owner.

That the interpretation of the two acts above set forth is that accorded them by the North Carolina Supreme Court is made clear beyond dispute by Faizan v Grain Dealers Mut. Ins. Co. (254 NC 47), cited by the majority. The opinion in that case describes the two acts as follows (254 NC 47, 52-54):

“(a). The 1953 Act.

“This Act applies to those persons whose driver’s licenses have been suspended by reason of violations of motor vehicle statutes, failure to pay and discharge judgments for damages resulting from ownership or operation of motor vehicles, or failure to prove financial responsibility where damages have been occasioned by the ownership or operation of motor vehicles. It is provided that such persons, where they are otherwise entitled to restoration of driver’s licenses, must prove financial responsibility before such licenses may be restored. The financial responsibility must then be maintained for two years. One method of proving and maintaining financial responsibility is to obtain automobile liability insurance as defined by, and in compliance with, G.S. 20-279.21.

* * *

“(b). The 1957 Act.

“This Act requires proof of financial responsibility by all motor vehicle owners who apply to the Department for North Carolina registration certificates and plates. Financial responsibility may be shown by procurement of automobile liability insurance. Before a motor vehicle may be registered and registration plates obtained, a certificate of insurance coverage (FS-1) must be delivered by an insurer to the Commissioner.

* * *

“The 1953 Act applies to a limited class of motorists — those whose driver’s licenses have been suspended. These motorists must show financial responsibility as a condition precedent to restoration of their driver’s licenses. The 1957 Act applies to an unlimited class — all motor vehicle owners. Before obtaining periodic registration certificates and plates for vehicles, they must prove financial responsibility. One Act relates to restoration of driver’s license, the other to motor vehicle registration.”

Not only is the majority’s conclusion inconsistent with the statutes in both States, but also its policy rationale is difficult to understand. North Carolina can, if it sees fit to do so, impose upon the owners or drivers of vehicles registered in other States the obligation of carrying insurance in a stated and reasonable amount as a condition of the use of its highways in order to protect its residents (and itself if they be impecunious) against the expenses and other results of an accident within its borders (see Hess v Pawloski, 274 US 352; Leighton v Roper, 300 NY 434). It has not done so. New York’s interests in providing coverage under a policy issued in New York for an accident occurring in another State are (1) to protect the New York owner or New York operator from the criminal responsibility that may result from driving the vehicle in the other State without coverage in the amount required by the laws of that State and (2) as a matter of reciprocity, to protect the State where the accident occurred and the persons injured in that State against expenses and damages resulting from the injury to the same extent that the laws of that State require. A possible secondary purpose may be through the operation of reciprocity to obtain for New York residents injured by an out-of-State vehicle operated in New York the higher limit of coverage required by the other State, although that hardly seems probable because it would be most unusual for a policy issued in a higher limit State to provide that if the vehicle is operated in a lower limit State the coverage of the policy as to an accident there occurring would be reduced to the lower limit. In any event, none of those purposes has any bearing on the facts of this case, at least until an order of suspension of Padilla’s nonresident operating privilege has been issued by North Carolina, for until that time Padilla is not required by North Carolina law to have any insurance and cannot be subjected to any criminal responsibility. Neither New York nor North Carolina requires $15,000 coverage for a New York registered vehicle when operated in North Carolina for less than 30 days. Nor is it reasonable to interpret New York’s law, which requires only $10,000 coverage for the protection of a New York resident injured in a New York registered vehicle in an accident occurring in New York, as intended to require .$15,000 coverage for a New York resident’s injuries, simply because the injury to the New York resident in a New York registered vehicle occurred in a State which requires of its own registered vehicle owners but not of out-of-State vehicle owners, coverage of $15,000.

I would reverse and direct the entry of judgment declaring that the limit of Country-Wide’s obligation under the Padilla policy to Nieves Rodriguez is $10,000.

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

Order affirmed.

      . This point is based at least in part on the reciprocity inherent in the interplay of section 20-4.8 of the North Carolina General Statutes and subdivision 1 of section 250 of the New York Vehicle and Traffic Law. The North Carolina statute exempts from its registration requirements vehicles properly registered in another jurisdiction so long as the foreign jurisdiction grants like exemptions to vehicles registered in North Carolina. The New York statute does so provide.

      . As to the dissenter’s hypothetical query as to whether subdivision 5 of section 672 would reduce the coverage to a limit below that fixed by subdivision 2-a of section 167 of the Insurance Law when a New York automobile enters a State with lower limits, suffice it to say that subdivision 5 of section 672 does not so provide. Rather, since it specifies that the coverage shall be “at least in the minimum amount required [by the] other state”, the New York limits in any event would remain applicable.

       Thus, the 1957 act describes the 1953 act as “relating to proof of financial responsibility required of each operator and each owner of a motor vehicle involved in an accident, and relating to nonpayment of a judgment” (NC Gen Stats, § 20-314 [italics supplied]).


author: Meyer, J.

text:
    Ann G. Weiner, Respondent, v Metropolitan Transportation Authority, Defendant, and New York City Transit Authority, Appellant. Henrietta Shernov, Appellant, v New York City Transit Authority, Respondent.
    Argued January 13, 1982;
    decided February 18, 1982

      POINTS OF COUNSEL

      Eugene Freidus, Richard K. Bernard, John A. Murray and Lawrence Heisler for appellant in the first abovéentitled action.
    Appellant owed no special duty to respondent to prevent third-party criminal attacks. (Evers v Westerberg, 38 AD2d 751, 32 NY2d 684; Riss v City of New

      York, 22 NY2d 579; Messineo v City of Amsterdam, 17 NY2d 523; Steitz v City of Beacon, 295 NY 51; Roark v Hunting, 24 NY2d 470; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Amoruso v New York City Tr. Auth., 12 AD2d 11; Nicholson v Board of Educ., 36 NY2d 798; Blume v City of Newburgh, 265 App Div 965, 291 NY 739.)

      Daniel Ross for respondent in the first above-entitled action.
    I. Defendant, New York City Transit Authority acting in its proprietary capacity of operating a railroad, owed a duty of exercising reasonable vigilance to protect plaintiff, its passenger from the foreseeable criminal act and physical harm inflicted upon her by a third person. This duty was coextensive with that owing to a patron of a railroad operated in the private sector, including the obligation to take such reasonable precautions as were necessary to prevent such crime and injury. (Becker v City of New York, 2 NY2d 226; Bernardine v City of New York, 294 NY 361; Riss v City of New York, 22 NY2d 579; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Murrain v Wilson Line, 270 App Div 372, 296 NY 845; Caldwell v Village of Is. Park, 304 NY 268; Amoruso v New York City Tr. Auth., 12 AD2d 11; Farmer v City of New York, 23 AD2d 638.) II. The granting of summary judgment against plaintiff was clearly unwarranted. Many issues of material fact exist in this case which require the determination of a jury before a proper legal decision can be made as to whether the New York City Transit Authority fulfilled its obligation to use reasonable care toward plaintiff. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Phillips v Kantor & Co., 31 NY2d 307.) III. The cases cited by defendant-appellant either support plaintiff’s position or are inapposite and distinguishable. (Riss v City of New York, 22 NY2d 579; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Murrain v Wilson Line, 270 App Div 372, 296 NY 845; Sherman v Concourse Realty Corp., 47 AD2d 134; Loeser v Nathan Hale Gardens, 73 AD2d 187; Curcio v City of New York, 275 NY 20; Langer v City of New York, 9 Misc 2d 1002, 8 AD2d 709; New York City Tr. Auth. v Loos, 2 Misc 2d 733, 3 AD2d 740; Manhattan & Bronx Surface Tr. Operating Auth. v Quill, 48 Misc 2d 1021.)

      Harvey J. Michelman and Perry S. Reich for appellant in the second above-entitled action.
    I. The Transit Authority breached its duty to take reasonable precautions to protect its passengers. (Amoruso v New York City Tr. Auth., 12 AD2d 11; Prinz v City of New York, 98 Misc 2d 952; Riss v City of New York, 22 NY2d 579; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Watson v Adirondack Trailways, 45 AD2d 504.) II. The issue of proximate cause was properly submitted to the jury as a question of fact in the absence of exception. (Derdiarian v Felix Contr. Corp., 51 NY2d 308; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Watson v Adirondack Trailways, 45 AD2d 504; McManus v Edmunds, 11 AD2d 740; Holpp v Carafa, 8 AD2d 617; Murtha v Ridley, 232 NY 488.)

      Eugene Freidus and Richard K. Bernard for respondent in the second above-entitled action.
    I. Respondent owed no special duty to appellant to prevent third-party attacks. (Evers v Westerberg, 38 AD2d 751, 32 NY2d 684; Riss v City of New York, 22 NY2d 579; Messineo v City of Amsterdam, 17 NY2d 523; Motyka v City of Amsterdam, 15 NY2d 134; Steitz v City of Beacon, 295 NY 51; Roark v Hunting, 24 NY2d 470; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Amoruso v New York City Tr. Auth., 12 AD2d 11; Nicholson v Board of Educ., 36 NY2d 798; Curcio v City of New York, 275 NY 20.) II. The court below did not err in finding no proof of proximate cause. (Macauley v Theodore B. Starr, Inc., 194 App Div 643, 233 NY 601; Drew v Troy Fifth Ave. Bus Co., 9 AD2d 587, 701; Duner v Hudson & Manhattan R. R. Co., 264 App Div 229, 290 NY 849; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Taylor v Commercial Bank, 174 NY 181; State Bank of Brockton v Brockton Fruit Juice Co., 208 NY 492; Kaplan v City of New York, 10 AD2d 319; Gastel v City of New York, 194 NY 15.)
   OPINION OF THE COURT

Meyer, J.

The New York City Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the authority and the person assaulted. That a nongovernmental common carrier would be liable under the same factual circumstances is not determinative of the authority’s liability. Its immunity from such liability rests upon the same considerations as does the immunity of a municipality or other governmental body from liability for failure to provide adequate police protection, for the duty if one were recognized would necessarily implicate the Transit Authority police. Accordingly, the order of the Appellate Division, First Department, in the Weiner case should be reversed, and the order of the Appellate Division, Second Department, in the Shernov case should be affirmed, though on a rationale different from that of the Appellate Division.

In the Weiner case the authority moved for summary judgment. The papers on the motion establish that plaintiff entered the 25th Street end of the 23rd Street station of the Eighth Avenue subway at about 12:15 p.m. on December 4, 1973. There is a change booth at the 25th Street entrance but a sign at street level states that there is a clerk in the booth only between the hours of 2:55 p.m. and 7:30 p.m., and that anyone without a token must use the 23rd Street entrance at which a clerk is in attendance full time. Plaintiff proceeded from the street to the token booth level, paid her fare with a token and had begun to descend to the train level when she was accosted on the steps by a man who blocked her way. There was no one else on the stairway. The man slashed at her handbag with a knife, cutting through its strap, but at the same time cutting her wrist. Complaint reports of the transit police establish that during the period January 13 through October 23, 1973 13 separate incidents of robbery or assault occurred, 9 of them at the 25th Street end of the station when the token booth was closed and 8 of them at knifepoint.

Trial Term granted the authority’s motion and dismissed the complaint. The Appellate Division, however, reversed as to the Transit Authority, holding that its knowledge of the prior incidents while the entrance was unmanned presented a triable issue of fact as to negligence. The Transit Authority appeals on a certified question.

The Shernov case involved an assault upon and attempted rape of plaintiff in the New Utrecht Avenue station of the Sea Beach line. It too included evidence of prior such assaults, some in the same station and some elsewhere on the line. The psychological impact on plaintiff was sufficiently great that the case did not come to trial until almost 16 years after the incident. A Civil Court jury awarded plaintiff a $50,000 verdict, which was, however, reversed by the Appellate Term on the ground that the Transit Authority had no legal duty to protect its passengers from crime. The Appellate Division disagreed with respect to duty, but nonetheless affirmed on the ground that plaintiff’s evidence was insufficient to establish proximate cause. The appeal to us is on a question certified by the Appellate Division.

In each case the plaintiff argues that the Transit Authority is engaged in a proprietary function and subject to the same liability to protect its passengers from assault as is any common carrier (Green Bus Lines v Ocean Acc. & Guar. Corp., 287 NY 309, 312; see Gillespie v Brooklyn Hgts. R.R. Co., 178 NY 347; 1 NY PJI2d 419) or as is the owner of real property who is aware of criminal acts that have occurred on his premises (Nallan v Helmsley-Spear, Inc., 50 NY2d 507). The Transit Authority on the other hand contends that it performs a governmental function and is not under any greater duty to provide police protection than is any other municipality (Riss v City of New York, 22 NY2d 579; Bass v City of New York, 38 AD2d 407, affd 32 NY2d 894; see Garrett v Town of Greece, 55 NY2d 774; Ann., 46 ALR3d 1084), and, therefore, absent a special relationship such as existed in Florence v Goldberg (44 NY2d 189) and Schuster v City of New York (5 NY2d 75), cannot be held liable. The issue is one on which we have not passed (cf. Scalise v City of New York, 3 NY2d 951), but on which, in addition to the two cases now under consideration, the lower courts have spoken a number of times (Bardavid v New York City Tr. Auth., 82 AD2d 776; Amoruso v New York City Tr. Auth., 12 AD2d 11; Biniewski v City of New York, 267 App Div 108; Prinz v City of New York, 98 Misc 2d 952; Eisman v Port Auth. Trans Hudson Corp., 96 Misc 2d 678; see Moriarity v New York City Tr. Auth., 11 AD2d 654; Langer v City of New York, 9 Misc 2d 1002, affd 8 AD2d 709). We hold that there is no duty such as plaintiffs in these cases seek to enforce.

The Legislature has declared in subdivision 2 of section 1202 of the Public Authorities Law that the authority “shall be regarded as performing a governmental function in carrying out its corporate purpose and in exercising the powers granted by this title” and has authorized the authority to maintain a transit police force (Public Authorities Law, § 1204, subd 16) whose members are designated “police officers” for purposes of the Criminal Procedure Law (§ 1.20, subd 34, par [e]) and whose powers and duties as defined in section 1204, though geographically limited, are otherwise quite as broad as those of a municipal police officer. It has also in section 1212 of the Public Authorities Law decreed that the authority is responsible for the negligence of its employees in the operation of the subway system. However, nothing in the latter provision or in section 8 of the Court of Claims Act suggests any intention to abrogate with respect to the authority the rule, recognized in Riss v City of New York (22 NY2d 579, supra) that the allocation of police resources to protection from criminal wrongdoing is a legislative-executive decision for which there is no liability.

As Riss makes clear, before liability should be imposed in such a case “there should be a legislative determination that that should be the scope of public responsibility” (22 NY2d 579, 582). Were the issue simply one of a duty to provide police protection, therefore, there would be no question that no duty was owed plaintiffs. It is, however, complicated by the facts that the police department is part of the authority operating the subways, that a private property owner owes a duty of such protection though it has no police force, and that a privately owned common carrier operating a railway system such as does the authority can have designated employees appointed as policemen with the same powers that a city or village policeman has (Railroad Law, § 88).

None of those factors is controlling. It is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred (Bass v City of New York, 32 NY2d 894, supra; Woodhull v Mayor, 150 NY 450, 453; Pianka v State, 46 Cal 2d 208; Guidi v State, 41 Cal 2d 623; Rhodes v City of Palo Alto, 100 Cal App 2d 336; City of Macon v Powell, 133 Ga App 907; see Herilla v Mayor & City Council of Baltimore, 37 Md App 481; Crouch v Hall, 406 NE2d 303 [Ind App]).

The activities for which it is sought to hold the authority in the cases under consideration involve or grow directly out of the failure to allocate police resources — the absence of police surveillance at the entrance and the failure to warn of criminal activity in the area or close the entrance when police protection was not available. That the police and the common carrier activity (otherwise proprietary) are vested in the same entity will not lessen the crushing nature of the burden that would otherwise be imposed (Steitz v City of Beacon, 295 NY 51, 55) nor interfere less with the legislative-executive decision how to utilize such resources (see Riss v City of New York, 22 NY2d 579, supra). Nor should the fact that other carriers may have employees designated as policemen change the responsibility of the authority, for the allocation of such a carrier’s police resources involves no interference by the judiciary with the legislative-executive decision made by the authority (see Motyka v City of Amsterdam, 15 NY2d 134, 138; cf. Woodhull v Mayor, 150 NY 450, supra; Biniewski v City of New York, 267 App Div 108, supra).

Accordingly, in the Weiner case the order of the Appellate Division should be reversed, with costs, and the question certified answered in the negative, and in the Shernov case the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

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

In Weiner v Metropolitan Transp. Auth.: Order reversed, with costs, and the complaint dismissed as against defendant New York City Transit Authority. Question certified answered in the negative.

In Shernov v New York City Tr. Auth.: Order affirmed, with costs. Question certified answered in the affirmative.

      . The action was begun against both the Metropolitan Transit Authority and the New York City Transit Authority. The Appellate Division affirmed so much of Trial Term’s order as dismissed the action against MTA, plaintiff having conceded that MTA neither operated nor controlled any transit facility. MTA, therefore, is no longer in the case.

        . No such relationship is claimed in either of the cases under consideration.


author: Chief Judge Cooke.

text:
    Morris C. Gurnee, Appellant, v Aetna Life and Casualty Company, Respondent. Moshe Weinreich, Appellant, v State-Wide Insurance Company et al., Respondents, et al., Defendants.
    Argued January 12, 1982;
    decided February 18, 1982

      POINTS OF COUNSEL

      Willard M. Pottle, Jr., for appellant in the first above-entitled action.
    I. The court below is in error in dismissing the complaint under CPLR 3211. II. The Kurcsics case is retroactive. (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Chevron Oil Co. v Huson, 404 US 97.) III. Application of Kurcsics to other similarly situated claimants would not violate the New York State and United States Constitutions. (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Empire Mut. Ins. Co. [Konetsky], 92 Misc 2d 843, 55 AD2d 893, 43 NY2d 889; State Farm Mut. Auto. Ins. Cos. v Brooks, 101 Misc 2d 704; Welty v Brown, 57 AD2d 1000; Patterson v Carey, 41 NY2d 714; Mandels v

      Liberty Mut. Ins. Co., 45 NY2d 455; Becker v Huss Co., 43 NY2d 527.) IV. This motion should be given summary judgment treatment for plaintiff-appellants. (Hurd v City of Buffalo, 41 AD2d 402, 34 NY2d 628; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Adrico Realty Corp. v City of New York, 250 NY 29.)

      Lawrence Milberg and Jeremy M. Heisler for appellant in the second above-entitled action.
    I. Plaintiff is suing for breach of an insurance contract, the terms of which were mandated by the Insurance Law. Nonretroactivity and constitutional analysis or analysis grounded on equitable considerations, are not relevant to the instant frame of reference. (People v Broadway R. R. Co. of Brooklyn, 126 NY 29; Miller v Continental Ins. Co., 40 NY2d 675; Sturges Mfg. Co. v Utica Mut. Ins. Co., 37 NY2d 69; Kocak v Metropolitan Life Ins. Co., 237 App Div 780, 263 NY 518.) II. There is no constitutional barrier to recovery of payments the Court of Appeals has ruled are due to plaintiff and class members under the insurance contract. (Mariniello v Shell Oil Co., 511 F2d 853; Great Northern Ry. v Sunburst Co., 287 US 358; Patterson v Colorado, 205 US 454; Woodall v Keller, 337 F Supp 595; United States v Bensinger, 507 F2d 103; Cipriano v City of Houma, 395 US 701; Hurd v City of Buffalo, 41 AD2d 402.) III. Even assuming classic nonretroactivity analysis is applied, the equities in favor of plaintiff and other insureds outweigh the equities in favor of the insurance companies. (Chevron Oil Co. v Huson, 404 US 97; Montgomery v Daniels, 38 NY2d 41.) IV. The argument against nonretroactive application of Kurcsics cannot apply to any date after February 28, 1978, the date of the Kurcsics Supreme Court decision. (Peters v Wayne State Univ., 476 F Supp 1343; Los Angeles Dept. of Water & Power v Manhart, 435 US 702.) V. Special Term’s denial of plaintiff’s motion to determine class should be reversed and the motion granted on the merits. VI. General considerations favor class treatment of both plaintiff and defendant classes. (Friar v Vanguard Holding Corp., 78 AD2d 83; Gilman v Merrill Lynch, Pierce, Fenner & Smith, 93 Misc 2d 941.) VIL The prerequisites of CPLR 901 et seq. with respect to a plaintiff class action have been satisfied. (Friar v Vanguard Holding Corp., 78 AD2d 83;
      Contract Buyers League v F & F Inv., 300 F Supp 210; La Mar v H & B Novelty & Loan Co., 489 F2d 461; Ammon v Suffolk County, 67 AD2d 959; Evans v City of Johnstown, 96 Misc 2d 755.) VIII. The statutory provision for interest payments and attorneys’ fees do not support dismissal of the action. (Murphy v North Amer. Light & Power Co., 33 F Supp 567; Union Estates Co. v Adlon Constr. Co., 221 NY 183.) IX. A defendant class should have been certified by the court below. All criteria of CPLR 901 et seq. were satisfied. (Northwestern Tel. Co. v Western Union Tel. Co., 197 Misc 1075; Research Corp. v Pfister Associated Growers, 301 F Supp 497; Otero v New York City Housing Auth., 354 F Supp 941; Technograph Printed Circuits v Methode Electronics, 285 F Supp 714.)

      Charles Platto, William E. Hegarty, Kevin J. Burke and Ralph L. Halpern for respondent in the first above-entitled action. Charles Platto, William E. Hegarty and Kevin J. Burke for State-Wide Insurance Company, respondent in the second above-entitled action.
    I. Retroactive application
    of Kurcsics to other claimants would violate the New York State and United States Constitutions. (Great Northern Ry. v Sunburst Co., 287 US 358; Lemon v Kurtzman, 411 US 192; Mandels v Liberty Mut. Ins. Co., 60 AD2d 864, 45 NY2d 455; Patterson v Carey, 41 NY2d 714; Missouri Pacific Ry. v Nebraska, 164 US 403; Chicago, St. Paul, Minneapolis & Omaha Ry. v Holmberg, 282 US 162; Thompson v Consolidated Gas Corp., 300 US 55; Pennsylvania Coal Co. v Mahon, 260 US 393; Health Ins. Assn. of Amer. v Harnett, 44 NY2d 302; United States Trust Co. v New Jersey, 431 US 1; Allied Structural Steel Co. v Spannaus, 438 US 234.) II. Kurcsics may not be given retroactive application since the insurance carriers obeyed regulations of the Superintendent of Insurance. (Atlantic Coast Line v Florida, 295 US 301; Moss v Civil Aeronautics Bd., 521 F2d 298, cert den sub nom. Roberts v Civil Aeronautics Bd., 424 US 966; Incorporated Vil. of Northport v Guardian Fed. Sav. & Loan Assn., 87 Misc 2d 344, 54 AD2d 893; Daly v Eagan, 77 Misc 2d 279.) III. Kurcsics should not be given retroactive application as a matter of equity under the Chevron rule. (Chicot County Dist. v Bank, 308 US 371; Chevron Oil Co. v Huson, 404 US 97; Montgomery v Dan

      iels, 38 NY2d 41; Stevens v Califano, 448 F Supp 1313, 443 US 901; Matter of Granger v Urda, 44 NY2d 91; Grello v Daszykowski, 44 NY2d 894; Matter of Irish Int. Airlines v Levine, 48 AD2d 202; Rush v Savchuck, 444 US 320; Seider v Roth, 17 NY2d 111; New York Public Interest Research Group v Steingut, 40 NY2d 250; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Hurd v City of Buffalo, 41 AD2d 402, 34 NY2d 628.) IV. This is not a breach of contract case. (Jonneck v Metropolitan Life Ins. Co., 162 NY 574; Lloyd v North British & Mercantile Ins. Co. of London & Edinburgh, 174 App Div 371; Greenhaus v American Progressive Health Ins. Co., 33 Misc 2d 280, 18 AD2d 1076; Kocak v Metropolitan Life Ins. Co., 237 App Div 780, 263 NY 518; People v Broadway R. R. Co. of Brooklyn, 126 NY 29; Chicot County Dist. v Bank, 308 US 371.) V. The motion to dismiss was properly granted under CPLR 3211. (Matter of Wilco Props. Corp. v Department of Environmental Conservation of State of N. Y., 39 AD2d 6; People v Wiley, 59 Misc 2d 519; Matter of Siwek v Mahoney, 39 NY2d 159; O’Hara v Del Bello, 47 NY2d 363; Maybrown v Malverne Distrs., 57 AD2d 548; Franklin v Pee Dee Jay Amusement Co., 71 AD2d 866; City of Mount Vernon v East Hudson Parkway Auth., 45 Misc 2d 471, 23 AD2d 849.) VI. The retroactivity issue was not addressed in Kurcsics and is properly before this court. (Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; Empire Sq. Realty Co. v Chase Nat. Bank of City of N. Y., 181 Misc 752, 267 App Div 817; City of Buffalo v Cargill, Inc., 44 NY2d 7.) VII. The Finger Lakes, Gillead, Becker, Empire Mutual and Brooks cases are inapposite. (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Gillead [City of New York], 104 Misc 2d 1126; Becker v Huss Co., 43 NY2d 527; Matter of Empire Mut. Ins. Co. [Konetsky], 92 Misc 2d 843, 55 AD2d 893, 43 NY2d 889; Matter of Adams [Government Employees Ins. Co.], 52 AD2d 118; State Farm Mut. Auto. Ins. Cos. v Brooks, 101 Misc 2d 704.) VIII. Appellants’ motions for certification of plaintiff class and defendant class were properly denied. (Seligman v Guardian Life Ins. Co. of Amer., 59 AD2d 859; Rapp v Dime Sav. Bank of N. Y., 64 AD2d 964, 48 NY2d 658; Levine v Chesapeake & Ohio R.R. Co., 60 AD2d 246;
      People ex rel. Kaufmann v Goldman, 86 Misc 2d 776; Turner v Codd, 85 Misc 2d 483; Matter of Shook v Lavine, 49 AD2d 238; Evans v City of Johnstown, 96 Misc 2d 755; Spatz v Wide World Travel Serv., 70 AD2d 835; Matter of Knapp v Michaux, 55 AD2d 1025; Vallone v Delpark Equities, 95 Misc 2d 161.) IX. The claims for interest and attorneys’ fees were properly denied.

      Eugene A. Leiman for Maryland Casualty Company, respondent in the second above-entitled action.
    The order and decision below should be affirmed (Greenhaus v American Progressive Health Ins. Co., 33 Misc 2d 280, 18 AD2d 1076; American Paint Serv. v Home Ins. Co. of N. Y., 246 F2d 91; Goldman v Piedmont Fire Ins. Co., 198 F2d 712; Clark v Travelers Ind. Co., 313 F2d 160; Kisting v Westchester Fire Ins. Co., 290 F Supp 141, 416 F2d 967.)

      Sheldon V. Burman for Samuel Uretsky and others, amici curiae, in the first above-entitled action.
    I. Plaintiffs set forth legally sufficient causes of action which are improperly sought to be dismissed by the demurrer motions of defendants. (Abrams v Allen, 297 NY 52; Columbia Gas of N. Y. v New York State Elec. & Gas Corp., 28 NY2d 117; Guggenheimer v Ginzburg, 43 NY2d 268; Rovello v Orofino Realty Co., 40 NY2d 633; Stukuls v State of New York, 42 NY2d 272; Dolgow v Anderson, 438 F2d 825; Bradley v Richmond School Bd., 416 US 696; Albemarle Paper Co. v Moody, 422 US 405; Los Angeles Dept. of Water & Power v Manhart, 435 US 702; Becker v Huss Co., 43 NY2d 527.) II. The uniform insurance contracts and the statutory requirements of section 671 of the Insurance Law mandate payment of up to $1,000 per month for lost earnings. (Breed v Insurance Co. of North Amer., 46 NY2d 351; Miller v Continental Ins. Co., 40 NY2d 675; American Home Assur. Co. v Hartford Ins. Co., 74 AD2d 224; Patterson v Carey, 41 NY2d 714; Health Ins. Assn. of Amer. v Harnett, 44 NY2d 302; Allied Structural Steel Co. v Spannaus, 438 US 234; Pennsylvania Coal Co. v Mahon, 260 US 393; United States Trust Co. v New Jersey, 431 US 1; Mandels v Liberty Mut. Ins. Co., 45 NY2d 455.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and Robert S. Hammer of counsel), for Superintendent of Insurance of the State of New York, amicus curiae, in the second above-entitled action.
    The Kurcsics ruling should be applied prospectively to cases which arise after its decision. (Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 40 NY2d 731; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, 39 NY2d 920; Los Angeles Dept. of Water & Power v Manhart, 435 US 702; Lemon v Kurtzman, 411 US 192; New York Public Interest Research Group v Steingut, 40 NY2d 250; Chevron Oil Co. v Huson, 404 US 97; Matter of Jessica XX, 77 AD2d 381; Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 88 Misc 2d 1047; Incorporated Vil. of Northport v Guardian Fed. Sav. & Loan Assn., 87 Misc 2d 344; Matter of Government Employees Ins. Co. v Sparrow, 66 AD2d 782.)
   OPINION OF THE COURT

Chief Judge Cooke.

These cases present the „ question whether the holding of Kurcsics v Merchants Mut. Ins. Co. (49 NY2d 451) should be given retroactive effect. For the outlined reasons, this court holds that Kurcsics should be applied to all claims not barred by the Statute of Limitations.

In Kurcsics, the court construed the phrase “first party benefits”, contained in section 671 of the Insurance Law, as it related to no-fault insurance protection. The court held that under section 671, a covered person injured in a motor vehicle accident who sustained lost earnings of more than $1,000 per month can recover as first-party benefits 80% of his or her actual lost earnings up to a maximum of $1,000 per month. The court rejected the Superintendent of Insurance’s interpretation of section 671 as limiting recovery for lost earnings to a maximum of 80% of $1,000, or $800.

Morris Gurnee, plaintiff in one of the instant actions, was injured in November, 1977 while driving a car owned by an insured of Aetna Life and Casualty Company. He claimed lost wages of more than $3,200 per month. Aetna paid him $800 per month, in accordance with State Insurance Department regulations. After this court decided Kurcsics in February, 1980, Gurnee sued Aetna, claiming he was entitled to the maximum $1,000 per month for lost earnings. Supreme Court granted defendant’s motion to dismiss the complaint for failure to state a cause of action, holding that Kurcsics should not be applied retroactively. That court also denied as academic plaintiff’s motion to maintain the lawsuit as a class action. The Appellate Division affirmed.

Moshe Weinreich was injured in an accident in July, 1975 involving a vehicle insured by State-Wide Insurance Company. In the wake of Kurcsics, he sued State-Wide, alleging that it refused to pay him more than $800 per month in lost wages even though he was entitled to $1,000. Weinreich also moved for an order determining that the suit could be brought as a class action. Supreme Court granted defendant’s motion to dismiss for failure to state a cause of action, holding that Kurcsics was not retroactive, and denied the motion for class certification. Appellate Division affirmance followed.

In determining whether the holding of Kurcsics is applicable to other claims that arose before the decision was handed down, it is questionable whether retroactivity analysis is relevant with respect to the application of the first decision of the State’s highest court interpreting a new statute. Such analysis is traditionally used where there has been an abrupt shift in controlling decisional law. In Kurcsics, this court merely construed, at its first opportunity to do so, the language of a statute that had been in effect since 1974.

Even under what might be described as the traditional retroactivity analysis, however, it is clear that Kurcsics should be accorded full retroactive effect. Several principles provide guidance for such examination. First, it is well established that, “consonant with the common law’s policy-laden assumptions, a change in decisional law usually will be applied retrospectively to all cases still in the normal litigating process” (Gager v White, 53 NY2d 475, 483; see People v Pepper, 53 NY2d 213, 219-220; People v Morales, 37 NY2d 262, 267-269; Kelly v Long Is. Light. Co., 31 NY2d 25, 29, n 3; Knapp v Fasbender, 1 NY2d 212, 243). As an exception to this general rule, however, “where there has been such a sharp break in the continuity of law that its impact will ‘wreak more havoc in society than society’s interest in stability will tolerate’ ” a court may direct that the new pronouncement operate prospectively alone (Gager v White, supra, at pp 483-484, quoting Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: “Prospective Overruling” or “Sunbursting”, 51 Marq L Rev 254).

. In Chevron Oil Co. v Huson (404 US 97, 106-107), the Supreme Court outlined three factors to consider in determining if a ruling should be prospective only. “First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied * * * or by deciding an issue of first impression whose resolution was not clearly foreshadowed” (404 US, at p 106). Second, the prior history of the rule at issue and the impact of retroactive application upon its purpose and effect should be considered. Finally, the court should take into account any inequity that would be created by retroactive application (id.).

Turning to the instant cases, defendants argue that Kurcsics should not be applied retroactively because its result was not clearly foreshadowed. In this regard it is important to emphasize that Kurcsics did not “establish a new principle of law.” It merely construed a statute that had been in effect for a number of years. It is true that the Insurance Department had promulgated regulations based on a construction of section 671 contrary to that subsequently articulated by this court. A judicial decision construing the words of a statute, however, does not constitute the creation of a new legal principle. Additionally, the definitional language of section 671 itself foreshadowed the conclusion this court first had the opportunity to express in Kurcsics.

With respect to the second factor set forth in Chevron, defendants argue that the purposes of the legislation would not be furthered because retroactive application of Kurcsics would reduce neither insurance premium rates nor the number of law suits stemming from automobile accidents, both admittedly salutary goals of the no-fault scheme. In Montgomery v Daniels (38 NY2d 41, 55), however, this court stated that a crucial facet of the Legislature’s plan in enacting article 18 of the Insurance Law consisted of “guaranteeing prompt and full compensation of economic losses up to $50,000 without the necessity of recourse to the courts” (emphasis added). It is this right of an injured party to prompt and full compensation that offsets the no-fault law’s elimination of the ability to recover for pain and suffering for relatively minor injuries (see NY Legis Ann, 1973, p 298; 2 McKinney’s Session Laws of NY, 1973, p 2335). An important aspect of the no-fault scheme, then, was the provision of first-party benefits. “Full compensation” under the scheme includes the amount of lost earnings allowed by section 671. To argue that application of the correct interpretation of section 671 will not further the purposes of the no-fault legislation is to ignore these crucial benefits. Indeed, to deny Kurcsics application to these cases would directly contradict the legislative design.

The third factor cited in Chevron entails weighing relative burdens that would be imposed upon either party if Kurcsics were given retroactive effect. Defendants maintain that they based their premium rates upon the assumption that their liability for lost earnings would be limited to $800 per month. They assert that a determination that their maximum liability was $1,000 per month would create severe financial hardships. Whatever hardships may be suffered by insurers who erroneously believed that their maximum exposure was $800 per month for lost earnings, however, is more than outweighed by the hardship suffered by those injured individuals who received only $800 per month for lost earnings although entitled to a maximum of $1,000 per month. As this court observed in Montgomery v Daniels (38 NY2d 41, 55, supra), the no-fault legislation foreclosed recovery for pain and suffering by persons who had suffered relatively minor injuries in automobile accidents, but balanced this by providing a means of obtaining prompt and full recovery for certain economic losses. Plaintiffs were denied the ability to sue for pain and suffering, yet they were also denied the full recovery to which they were entitled under that scheme. The unfairness to such injured persons outweighs whatever financial burden may be imposed on insurers. With respect to this burden, it should be noted that the applicable six-year Statute of Limitations has already extinguished a portion of the insurers’ potential liability (see CPLR 213).

When all of the applicable criteria are considered, retroactive application of Kurcsics is mandated. In sum, that case established no new principle of law; it merely construed the language of a statute that was already in existence. Also, the purposes of the no-fault insurance legislation would be furthered by retroactive application of Kurcsics. And, finally, a balancing of the equities dictates that the injured parties not be made to bear the burden of foregoing part of the recovery to which they were statutorily entitled.

Defendants also raise constitutional challenges to retroactive application of Kurcsics. These arguments, however, are unpersuasive. Kurcsics merely construed the language of a statute governing certain provisions required of automobile insurance contracts. Such a judicial construction cannot, by its very nature, constitute a “Law impairing the Obligation of Contracts” (US Const, art I, § 10, par 1). Likewise, retroactive application of Kurcsics effects no unconstitutional taking of property without due process. Requiring defendants to pay covered persons according to the command of a statute governing their insurance policies and in effect when those policies were written simply is not a “taking”. There is thus no persuasive reason why this court’s construction of section 671 should not be held applicable to all claims that are not time-barred. To the contrary, equitable considerations and the nature of this court’s decision in Kurcsics require that Kurcsics be applied retroactively. Plaintiffs’ complaints therefore should not have been dismissed for failure to state a cause of action.

With respect to plaintiffs’ motions for orders determining that they could bring their suits as class actions, this court has no occasion at this point to address the merits.. The motions were denied as academic, in one case explicitly and in the other implicitly, in light of the dismissals of plaintiffs’ complaints for failure to state a cause of action. Given the inherently factual and discretionary nature of such determinations (see Ray v Marine Midland Grace Trust Co., 35 NY2d 147, 155; Siegel, New York Practice, § 147), the merits of the motions should first be explored and considered by the trial courts (see CPLR 901-909).

Accordingly, the orders of the Appellate Divisions should be reversed, with costs, and defendants’ motions to dismiss the complaints should be denied.

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

In Gurnee v Aetna Life & Cas. Co.: Order reversed, with costs, and defendant’s motion to dismiss the complaint denied.

In Weinreich v State-Wide Ins. Co.: Order reversed, with costs, and defendants’ motions to dismiss the complaint denied.