author: Wachtler, J.

text:
    Samuel Antone, Appellant, v General Motors Corporation, Buick Motor Division, Respondent.
    Argued October 15, 1984;
    decided November 29, 1984

      POINTS OF COUNSEL

      John Richard Streb for appellant.
    I. Plaintiff is a “resident” of New York for purposes of CPLR 202 where he has lived in New York continuously since 1969 except for an eight-month period, all his sentiments of a permanent home have been associated with New York, and where there is nothing in the record to indicate he ever intended to abandon his New York domicile in favor of one in Pennsylvania. (Korn v Merrill, 403 F Supp 377; Alex v Grande, 29 AD2d 616; Stafford v International Harvester Co., 668 F2d 142; Martin v Dierck Equip. Co., 52 AD2d 463; Jones v Greyhound Bus Lines, 73 Misc 2d 109; Bache Halsey Stuart v Namm, 446 F Supp 692; Matter of Shapiro v State Tax Comm., 67 AD2d 191, 50 NY2d 822; Matter of Bourne, 181 Misc 238, 267 App Div 876, 293 NY 785; Matter of Bodfish v Gallman, 50 AD2d 457; Matter of Chrisman, 43 AD2d 771.) II. The primary purposes of CPLR 202, to protect resident New York defendants and to prevent forum shopping, manifestly cannot be served in the case at bar where defendant is a nonresident and there is no forum shopping taking place. (Martin v Dierck Equip. Co., 52 AD2d 463; Sack v Low, 478 F2d 360; Stafford v International Harvester Co., 668 F2d 142; Lowell Wiper Supply Co. v Helen Shop, 235 F Supp 640; Chartener v Kice, 270 F Supp 432; Fullmer v Sloan’s Sporting Goods Co., 277 F Supp 995; National Sur. Co. v Ruffin, 242 NY 413; George v Douglas Aircraft Co., 332 F2d 73; Korn v Merrill, 403 F Supp 377; Pahmer v Hertz Corp., 36 AD2d 252.) III. The lower court, which explicitly stated it was not determining where plaintiff was domiciled, applied an incorrect legal standard when it erroneously found plaintiff was not a New York resident for purposes of CPLR 202. IV. Even if plaintiff is deemed a nonresident of New York, the New York limitations period should be applied under CPLR 202 where New York actually has a shorter limitations period than Pennsylvania, and where defendant has never proven the applicable law of Pennsylvania. (Knieriemen v Bache Halsey Stuart Shields, 74 AD2d 290; Daniels v Beryllium Corp., 227 F Supp 591.) V. Despite vigorous protestations by plaintiff’s counsel, defendant never substantiated its contention that Pennsylvania’s law would time-bar plaintiff’s action, and therefore its motion for summary judgment should have been denied. (Government Employees Ins. Co. v Sheerin, 65 AD2d 10; Atlas Fin. Corp. v Ezrine, 42 AD2d 256; Boutin v Cumbo, 259 F Supp 12; Onondaga Soil Testing v Barton, Brown, Clyde & Loguidiee, 69 AD2d 984; Gevinson v Kirkeby-Natus Corp., 26 AD2d 71; Knieriemen v Bache Halsey Stuart Shields, 74 AD2d 290.) VI. Defendant is estopped from asserting a Statute of Limitations because, despite its fiduciary relationship with plaintiff, it failed to timely disclose to him the obscure defects in his car. (Jordan v Ford Motor Co., 73 AD2d 422.) VII. Plaintiff should be permitted to amend his complaint to add a cause of action for fraud and concealment, where defendant had knowledge of defects in their Buick Skyhawks as early as 1976, yet made no disclosure of such defects to plaintiff until July of 1980. (Bilhorn v Farlow, 60 AD2d 755; Kuelling v Lean Mfg. Co., 183 NY 78; Torres v County of Erie, 64 AD2d 1020; Utica Sheet Metal Corp. v Schecter Corp., 25 AD2d 928.)

      Paul F. Jones, Joseph Ritzert, Elmer W. Johnson and George D. Kappus for respondent.
    I. The trial court’s finding that plaintiff had no New York residence is binding on this court. In any event, because that conclusion was supported by a fair interpretation of the evidence, it was properly left undisturbed. (Glaser v Glaser, 276 NY 296; Shohfi v Shohfi, 303 NY 370; Van Roo v Van Roo, 268 App Div 170, 294 NY 731; Mastin v Village of Lima, 86 AD2d 777; Amend v Hurley, 293 NY 587; McCall v Town of Middlebury, 52 AD2d 736; Whiting v Miller, 188 App Div 825; Oglesby v Cranwell, 250 App Div 720; Public Administrator v Curtiss-Wright Corp., 224 F Supp 236; Bache Halsey Stuart v Namm, 446 F Supp 692.) II. Because plaintiff had no New York residence, he could not have been a New York domiciliary; hence the court correctly declined to reach the issue of his subjective intentions. In any event, because of his lack of credibility, he could not have satisfactorily proven his intent even if it had been relevant. (Matter of Newcomb, 192 NY 238; Bache Halsey Stuart v Namm, 446 F Supp 692; Banasik v Reed Prentis Div., 34 AD2d 746,28 NY2d 770; Jones v Greyhound Bus Lines, 73 Misc 2d 109; Matter of Shapiro v State Tax Comm., 67 AD2d 191, 50 NY2d 822.) III. The “borrowing statute”, CPLR 202, applies regardless of the State of residence of defendant. (Stafford v International Harvester Co., 668 F2d 142; Sloman v Bennet, 139 Misc 508,235 App Div 607; Natural Resources Corp. v Royal Resources Corp., 427 F Supp 880; National Sur. Co. v

      Ruffin, 242 NY 413; Martin v Dierck Equip. Co., 52 AD2d 463, 43 NY2d 583; Jones v Greyhound Bus Lines, 73 Misc 2d 109; Boutin v Cumbo, 259 F Supp 12; George v Douglas Aircraft Co., 332 F2d 73, 379 US 904; Daigle v Leavitt, 54 Misc 2d 651.) IV. The court below was fully apprised of, and correctly applied, Pennsylvania’s two-year Statute of Limitations. (Gevinson v Kirkeby-Natus Corp., 26 AD2d 71; Hahn v Atlantic Richfield Co., 625 F2d 1095,450 US 981; Government Employees Ins. Co. v Sheerin, 65 AD2d 10; Atlas Fin. Corp. v Ezrine, 42 AD2d 256; Boutin v Cumbo, 259 F Supp 12.) V. Because plaintiff raised no issue concerning the applicability of any “discovery rule” in Pennsylvania, because no “discovery rule” in fact applies, and because in any event plaintiff knew all the facts necessary to bring his action and failed to exercise reasonable diligence to discover such additional facts as he may have wished, Special Term correctly found that plaintiff’s alleged cause of action accrued on September 12, 1977. (Matter of State of New York v Avco Fin. Serv., 50 NY2d 383; City of New York v State of New York, 39 NY2d 951; De Leon v New York City Tr. Auth., 50 NY2d 176; Halloran v Virginia Chems., 41 NY2d 386.) VI. Because defendant neither misrepresented nor concealed any fact, nor stood in any fiduciary relationship to plaintiff, the court was correct in refusing to hold it estopped from relying on the Statute of Limitations. (Jordan v Ford Motor Co., 73 AD2d 422; Wilson-Rich v Don Aux Assoc., 524 F Supp 1226; Martin v Edwards Labs., 60 NY2d 417; Matter of Steinhardt v JohnsManville Corp., 78 AD2d 577, 54 NY2d 1008, 456 US 967; Zuckerman v City of New York, 49 NY2d 557.) VII. Because his alleged cause of action is founded and based upon negligence and strict products liability, plaintiff’s attempt to circumvent the Statute of Limitations by amending his complaint to allege fraudulent concealment was properly denied. (Cover v Cohen, 61 NY2d 261; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 1073, 374 US 808; Stadtman v Cambere, 73 AD2d 501; Johnson v Gold, 71 AD2d 1056; Brick v Cohn-Hall-Marx Co., 276 NY 259; New York Seven-Up Bottling Co. v Dow Chem. Co., 96 AD2d 1051; Holdridge v Heyer-Schulte Corp., 440 F Supp 1088.)
   OPINION OF THE COURT

Wachtler, J.

Plaintiff has brought this product liability action against General Motors Corporation seeking damages incurred in a one-car accident on September 12,1977 in Punxsutawney, Pennsylvania. The principal question on this appeal is whether the plaintiff was a “resident” of New York at the time of the accident for purposes of CPLR 202, which applies the applicable Statute of Limitations of New York law to a cause of action which accrued in another State in favor of a resident but requires that a nonresident plaintiff’s action be timely under the applicable Statute of Limitations of both New York and the other State. Plaintiff asserts that he was a “resident” under CPLR 202 at the time of the accident because he was still then domiciled in New York. We agree with the lower courts that “residence” under CPLR 202 is distinct from “domicile”, and that the plaintiff was not a resident of New York on September 12, 1977.

Plaintiff Samuel Antone’s accident occurred while he v/as returning from dinner in his 1975 Buick Skyhawk to his place of employment, the Green Acres Nursing Home in Rossiter, Pennsylvania. Antone heard a loud grinding, felt the car shake violently, and then lost control as the car lurched suddenly to the left and struck a utility pole. Antone suffered serious injuries in the crash, including fractures of the pelvis and right hip, and was hospitalized for over one month.

Antone had purchased a used car on August 2,1976 from the Auto Shack, Inc., a car dealer in Jamestown, New York, which was not an authorized Buick dealer. Antone allowed his insurer to take title to the car following the accident and the insurer apparently sold it to a junkyard.

At the time of the accident Antone lived at the nursing home where he was employed. He had moved to Rossiter, Pennsylvania, from Olean, New York, in May 1977 when he began working for the nursing home. Prior to his move to Olean in 1972 he had lived in Jamestown, New York, for three or four years. During the five months prior to the accident Antone retained a post office box in Jamestown, New York, but did not maintain any place of residence in New York State.

For nearly three years following the accident Antone did not contact General Motors concerning his car and took no steps toward commencing a lawsuit. In June 1980 he received a letter from General Motors concerning a recall of 1975 Buick Sky-hawks due to possible problems with the wheel bearings which could lead to loss of control of the car. General Motors had concluded in late 1978 that a recall letter would be necessary, and it made efforts to determine who the owners were of the affected cars. Apparently because neither Antone nor the Auto Shack, Inc., notified General Motors of the change in ownership of Antone’s Buick, and because State records did not then indicate any such change, the recall letter was sent in February 1979 to the original owner of the car. Due to difficulties in reaching the original owner, the change in ownership did not become known to General Motors until mid-1980, at which time the recall letter was sent to Antone.

On August 27,1980 Antone commenced the present action by service of a summons and complaint. The complaint asserted claims sounding in negligence and strict liability and sought damages of $2,000,00o. General Motors answered and then moved for summary judgment dismissing the complaint as untimely. The motion was based on CPLR 202, the “borrowing statute”, which states: “An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.” General Motors’ contention is that plaintiff was not a “resident” of New York at the time of the accident and that the applicable Statute of Limitations in Pennsylvania, where the cause of action accrued, is two years, making Antone’s action untimely since it was commenced over two years after the accident.

Special Term, applying CPLR 202, ordered a hearing on the question of Antone’s residence. Following the hearing Trial Term found that Antone had not met his burden of proving that he was a resident of New York at the time of the accident. The court specifically noted that it was determining whether Antone had a residence in New York at the time of the accident and not whether he was then a domiciliary of New York. Special Term subsequently granted General Motors summary judgment dismissing the complaint.

On appeal, the Appellate Division unanimously affirmed, without opinion.

CPLR 202 is a reenactment, without substantive change, of section 13 of the Civil Practice Act which in turn substantially reenacted section 390-a of the Code of Civil Procedure, added in 1902 (L 1902, ch 193). The primary purpose of CPLR 202 and its predecessors is to prevent forum shopping by a nonresident seeking to take advantage of a more favorable Statute of Limitations in New York (National Sur. Co. v Ruffin, 242 NY 413, 417). Under all three provisions the Statute of Limitations of the State where the cause of action accrued is not “borrowed” where the cause of action accrued in favor of a resident of New York. Antone’s causes of action for negligence and strict products liability accrued in Pennsylvania, the State where the accident occurred (Martin v Dierck Equip. Co., 43 NY2d 583, 591). Thus, if he was not a resident of New York at the time of the accident his action must be dismissed unless it is timely under both New York and Pennsylvania law.

Plaintiff asserts that “resident” as used in CPLR 202 has the same meaning as “domiciliary” and claims that he remained domiciled in New York at the time of the accident. Establishment of a domicile in a State generally requires a physical presence in the State and an intention to make the State a permanent home (Rawstorne v Maguire, 265 NY 204, 208; Vernon, Conflict of Laws: Theory and Practice [2d ed, 1982], 3-84; Restatement, Conflict of Laws 2d, §§ 16, 18). The term residence, on the other hand, has been employed by Legislatures for a variety of purposes, often with a meaning which is different than that of domicile (see Reese and Green, That Elusive Word, “Residence”, 6 Vand L Rev 561; Restatement, Conflict of Laws 2d, § 11, Comment k).

New York has long recognized that “residence” and “domicile” are not interchangeable. In 1908 this court noted that the tvzo terms are not identical, recognizing, for example, that while a person can have but one domicile he can have more than one residence (Matter of Newcomb, 192 NY 238, 250). In 1925 the Legislature amended former section 182 of the Civil Practice Act, a venue provision, to provide that a person who maintained residences in more than one county would be deemed a resident of each county for venue purposes, thereby approving several Appellate Division decisions which distinguished “residence” from “domicile” for venue purposes (L 1925, ch 493; see 3 Weinstein-Kom-Miller, NY Civ Prac, par 503.02).

Thus, by the time the CPLR was enacted in 1962 it was well established that “domicile” and “residence” were not synonymous terms. The CPLR was the product of six years of work by the Advisory Committee on Practice and Procedure and two years of review by several legislative committees. In light of this extremely thorough drafting process it is difficult to imagine that the drafters would have retained the term resident if they meant domiciliary. Indeed, in none of the Reports which discussed the proposed section 202 was there any suggestion that resident should mean domiciliary (see Advisory Committee on Practice and Procedure, 2d Prelim Report, NY Legis Doc, 1958, No. 13, p 45; id., 5th Prelim Report, NY Legis Doc, 1960, No. 20, p 20; Senate Finance Committee, 6th Report, Civ Prac Act Revision, NY Legis Doc, 1962, No. 8, p 69). In contrast, various other sections of the CPLR contain some form of the term domicile (see, e.g., CPLR 302, subds [a], [b]; 313; 327; 2502, subd [a], par 2). Furthermore, several of these sections contain both “residence” and “domicile”, with the terms generally separated by the disjunctive “or” (see CPLR 302, subd [b]; 313; 327). It is apparent that the Legislature, in enacting and revising the CPLR, has been aware of the distinction between residence and domicile and has not hesitated to use the latter term where appropriate.

Thus, it may be presumed that when the term “residence” is employed in the CPLR it is not equivalent to domicile. This presumption could be rebutted if, for example, there were specific legislative intent to the contrary or if any meaning other than domicile would clearly be inimical to the purpose of the underlying provision (see Crampton, Currie, Kay, Conflict of Laws [1975], 48; Reese and Green, That Elusive Word, “Residence”, 6 Vand L Rev 561, 562; cf. Rawstorne v Maguire, 265 NY 204, 208, supra).

As discussed above, nothing in the legislative history of CPLR 202 indicates that resident was intended to mean domiciliary. Additionally, the purpose behind CPLR 202 of discouraging forum shopping by plaintiffs who have no significant contacts with New York is better served by focusing on whether the plaintiff has a residence in New York rather than on whether he is domiciled in this State. For example, an individual who maintains a “permanent place of abode” in New York and spends over one half of a taxable year in the State is subject to taxation as a “resident” even if he is not domiciled in New York (Tax Law, § 605, subd [a], par [2]). If, in fact, such an individual were domiciled elsewhere, and resident in CPLR 202 were interpreted as equivalent to domiciliary, this individual would be treated the same as someone with no contacts with New York, a result which would hardly be consistent with the statute’s purpose.

We thus hold that “resident” as used in CPLR 202 does not have the same meaning as “domiciliary”. Rather, the determination of whether a plaintiff is a New York resident, for purposes of CPLR 202, turns on whether he has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year (Matter of Newcomb, 192 NY 238; Hurley v Union Trust Co., 244 App Div 590; see Reese and Green, op. cit., 6 Vand L Rev, at p 563). Cases defining “resident” for purposes of venue under CPLR 503 are useful precedents (see, e.g., Siegfried v Siegfried, 92 AD2d 916; Hammerman v Louis Watch Co., 7 AD2d 817) because if an individual can show that he is a resident of a particular county in the State for venue purposes, he will also be a resident of the State itself for purposes of CPLR 202.

A review of the record here shows that the trial court used the proper meaning of “resident” in determining whether Antone was a resident of New York at the time of his accident. This determination was one of fact (Glaser v Glaser, 276 NY 296, 299), and as it was affirmed by the Appellate Division, and is supported by evidence in the record, it will not be disturbed by this court. Antone’s action must thus be timely under both the Pennsylvania and New York limitations periods.

As argued by General Motors to the trial court, Pennsylvania law contains a two-year limitations provision for personal injury causes of action of the type alleged by Antone. Antone’s accident occurred on September 12, 1977 and he did not commence this action until August 27, 1980. He now argues that even though his action was not commenced until more than two years after the accident, it is timely because Pennsylvania uses a “discovery” rule for actions to recover for personal injuries and he did not “discover” that he might have a cause of action against General Motors until he received the recall letter in 1980.

It is true that in “borrowing” a Statute of Limitations of another State, a New York court will also “borrow” the other State’s rules as to tolling (see Childs v Brandon, 60 NY2d 927; Martin v Dierck Equip. Co., 43 NY2d 583, 592, supra). Additionally, it does appear that Pennsylvania applies a “discovery” rule to limited classes of personal injury actions so as to create exceptions to the general rule that the two-year Statute of Limitations begins to run on the date of the plaintiff’s injury (see, generally, Anthony v Koppers Co., 496 Pa 119; Coyne v Porter-Hayden Co., 286 Pa Super Ct 1). Antone, however, did not raise the “discovery” rule argument before the trial court and thus that court had no occasion to determine whether facts existed to support application of the rule. Accordingly, Antone failed to preserve the issue and he cannot argue on appeal that the two-year Statute of Limitations did not begin to run on September 12, 1977.

Antone also claims that General Motors is equitably es-topped from asserting a Statute of Limitations alleging that General Motors deliberately concealed the need for the recall of 1975 Buick Skyhawks for several years, despite an obligation imposed on car manufacturers to notify purchasers of known safety-related defects.* **** Even if we were to accept Antone’s argument, for which he has cited no support, that this requirement in Federal law creates a fiduciary relationship between a car manufacturer and a secondhand purchaser, we find no evidence in the record that General Motors knew that there was a problem with the wheel bearings prior to the commencement of the recall campaign. Additionally, the delay in notification to Antone after the recall campaign began was not deliberate but was due, instead, to General Motors’ belief, based upon its own records and a check done with State motor vehicle offices, that the original purchaser of the car was still the owner.

Plaintiff’s final argument is that the trial court improperly denied his motion for leave to amend his complaint to add a cause of action for fraudulent concealment. There were, however, no facts presented to the trial court to support such a claim. Rather, it appears that he was attempting to circumvent the two-year Statute of Limitations in Pennsylvania by realleging as fraudulent concealment, causes of action properly based on negligence and strict products liability (see Cover v Cohen, 61 NY2d 261, 274-275; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 215-216; cf. Brick v Cohn-Hall-Marx Co., 276 NY 259, 263-264). Thus, it was not an abuse of discretion for the trial court to deny Antone leave to amend the complaint.

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye concur.

Orders affirmed, without costs.

      . The complaint also sets forth a cause of action denominated as breach of express and implied warranties. Even assuming that Antone could bring such a claim, despite the lack of privity and the presence of a claim for strict products liability (see Steckal v Haughton Elevator Co., 59 NY2d 628; Martin v Dierck Equip. Co., 43 NY2d 583; Uniform Commercial Code, § 2-318), he apparently does not contest defendant’s assertion that the cause of action is untimely under both New York and Pennsylvania law and thus its dismissal was proper.

      . Plaintiff’s argument that CPLR 202 applies only where the defendant is a resident of New York is not supported by either the language or history of the provision, and is contrary to the purpose of discouraging forum shopping by nonresident plaintiffs.

      . Neither party disputes that application of the borrowing statute turns on whether plaintiff was a resident when the cause of action accrued and not when the action was commenced (see Banasik v Reed Prentice Div., 34 AD2d 746, affd 28 NY2d 770; cf. United States Fid. & Guar. Co. v Smith Co., 46 NY2d 498, 505).

      . Our decision in Banasik v Reed Prentice Div. (28 NY2d 770, affg 34 AD2d 746) is not to the contrary. The Appellate Division opinion did appear to equate resident with domiciliary under CPLR 202. This court, however, affirmed, without opinion, and the facts as stated by the Appellate Division showed that there the plaintiff did not have a residence in New York at the time of her accident.

      . 12 Pa Stats Ann, § 34, which was in effect at the time of the accident, stated in pertinent part: “Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards”. 42 Pa Stats Ann, § 5524, which became effective on June 27,1978, states in pertinent part: “The following actions and proceedings must be commenced within two years * * * (2) An action to recover damages for injuries to the person * * * caused by the wrongful act or neglect or unlawful violence negligence of another”. As was stated explicitly in the former version of the statute, the general rule is that the two-year period begins to run at the time of the injury (see Hahn v Atlantic Richfield Co., 625 F2d 1095, 1100 [applying Pa law]; Coyne v Porter-Hayden Co., 286 Pa Super Ct 1, 5).

        Although not expressly provided in the statutes until" a 1982 amendment of 42 Pa Stats Ann, § 5524, strict products liability claims have been held to be governed by the two-year provision applicable to personal injury actions based on negligence (see Hahn v Atlantic Richfield Co., 625 F2d 1095, 1103-1106, supra; Salvador v Atlantic Steel Boiler Co., 256 Pa Super Ct 330, 341-344).

      . This statutory duty was enacted in the National Traffic and Motor Vehicle Safety Act of 1966 (Pub L 89-563, tit I, § 113), and as amended by the Motor Vehicle and Schoolbus Safety Amendments of 1974 (Pub L 93-492, tit I, § 102, subd [a]) is presently codified at 15 USC § 1411.

      . As with his argument as to equitable estoppel, Antone’s claim here is predicated upon the assertion that General Motors deliberately concealed knowledge of the defect in 1975 Buick Skyhawks.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Mortimer T. Burrows, Jr., et al., Respondents, v Board of Assessors for the Town of Chatham, Appellant, et al., Respondents, and Robert Abrams, as Attorney-General of the State of New York, Intervenor-Appellant. In the Matter of Walter C. Speanburg, Jr., et al., Respondents, v Susan F. McCarthy, as Assessor for the Town of Kinder-hook, Appellant, et al., Respondents, and Robert Abrams, as Attorney-General of the State of New York, IntervenorAppellant.
    Argued October 11, 1984;
    decided November 29, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Nancy A. Spiegel and Peter H. Schiff of counsel), for intervenor-appellant; Keith G. Flint for appellant in the first above-entitled proceeding, and Richard L. Mott, Town Attorney, for appellant in the second above-entitled proceeding.
    I. Subdivision 5 of section 458 of the Real Property Tax Law does not apply to tax districts, such as those in which petitioners reside, that were already assessing property at full value when the statute was enacted in 1979. Therefore, petitioners have no standing to challenge the constitutionality of the distinction made in section 458 (subd 5, pars [a], [b]) among tax districts changing to full value after 1979. (Syracuse Sav. Bank v Town of DeWitt, 56 NY2d 671; Matter of Dairylea Coop, v Walkley, 38 NY2d 6; Kelly v Yannotti, 4 NY2d 603; Matter of Slewett & Farber v Board of Assessors, 54 NY2d 547; Matter of Colt Inds. v Finance Administrator, 54 NY2d 533; Matter of Adams Co. v Nist, 72 AD2d 908; Matter of Grace v New York State Tax Comm., 37 NY2d 193; Matter of City of Lackawanna v State Bd. of Equalization & Assessment, 16 NY2d 222; Coffman v Coffman, 60 AD2d 181; Nicolette v Village of Clyde, 34 AD2d 202.) II. Subdivision 5 of section 458 of the Real Property Tax Law does not violate petitioners’ constitutional right to equal protection under the law. (Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358; Matter of Long Is. Light. Co. v State Tax Comm., 45 NY2d 529; Matter of Catapano v New York City Fin. Admin., 40 NY2d 1074, 431 US 910; Matter of Ames Volkswagen v State Tax Comm., 47 NY2d 345; Matter of American Bible Soc. v Lewisohn, 48 AD2d 308, 40 NY2d 78; Matter of Association of Bar v Lewisohn, 34 NY2d 143; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1.) III. Assuming,
      arguendo, that petitioners have standing and that the statute is defective, the court below directed the wrong remedy.

      Theodore Guterman II for respondents in the first and second above-entitled proceedings.
    I. Subdivision 5 of section 458 of the Real Property Tax Law is applicable to tax districts in which petitioners reside, which voluntarily went to full value assessment prior to 1979. II. Section 458 (subd 5, par [b]) is unconstitutional in violation of the equal protection clauses of the New York State and the United States Constitutions. (Matter of Vanderbilt, 281 NY 297; Cass v State of New York, 109 Misc 2d 107, 88 AD2d 305; Vlandis v Kline, 412 US 441; Elkins v Moreno, 435 US 647; Shapiro v Thompson, 394 US 618; Dunn v Blumstein, 405 US 330; Weissman v Evans, 56 NY2d 458.) III. The Supreme Court directed the proper remedy in order to eliminate the constitutional objections herein. (Weissman v Evans, 56 NY2d 458.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division, in each case, should be modified, with costs to appellants, by declaring invalid not only section 458 (subd 5, par [b]) of the Real Property Tax Law, but also section 458 (subd 5, par [a]) of the Real Property Tax Law, and, as so modified, the order of the Appellate Division should be affirmed.

Subdivision 5 of section 458 of the Real Property Tax Law is unconstitutional as violative of the equal protection clauses of the New York Constitution (NY Const, art I, § 11) and the United States Constitution (US Const, 14th Arndt). While recognizing that the Legislature is accorded broad latitude in the establishment of tax classifications (Madden v Kentucky, 309 US 83, 88; Shapiro v City of New York, 32 NY2d 96), and that a discriminatory tax classification will pass constitutional muster if any conceivable state of facts will support the classification (Matter of Catapano Co. v New York City Fin. Admin., 40 NY2d 1074,1075, app dsmd 431 US 910, citing Carmichael v Southern Coal Co., 301 US 495, 509), we conclude that a statute should nevertheless be declared unconstitutional if the difference in treatment constitutes invidious discrimination or is palpably arbitrary (Allied Stores v Bowers, 358 US 522, 530). For the reasons stated in the opinion by Justice Casey at the Appellate Division, we agree with the courts below that the disparate treatment of similarly situated veterans resulting from the classification created by subdivision 5 of section 458 of the Real Property Tax Law lacks a rational basis.

Subdivision 5 of section 458 of the Real Property Tax Law must be invalidated in its totality since paragraphs (a) and (b) together constitute a single expression of legislative policy regarding the increase of veterans’ real property tax exemptions. The unity of purpose which exists between paragraph (a) and paragraph (b) precludes the severance of paragraph (b) from the statute so as to grant all veterans, irrespective of local policy preference, mandatory increases in real property exemptions. (McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, subd d.) The policy decision to grant or deny increases in veterans’ real property tax exemptions properly rests within the discretion of the local and State Legislatures.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

In each case: Order modified, with costs to appellants, in accordance with the opinion herein and, as so modified, affirmed.

       The enactment of chapter 525 of the Laws of 1984, which is not applicable to this proceeding, eliminates the form of disparate treatment accorded to veterans in the instant case. The availability of veterans’ real property tax exemptions is now clearly a policy matter for local governments.


author: Jones, J.

text:
    Donald J. Markwica et al., Respondents, v Dorothy Davis, Appellant.
    Argued November 15, 1984;
    decided December 18, 1984

      POINTS OF COUNSEL

      Michael B. Infantino and John S. Hall, Jr., for appellant.
    I. Questions of fact exist as to whether the policy in effect at the decedent’s death was the policy in effect and owned at the time of the separation agreement. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Moskowitz v Garlock, 23 AD2d 943; Westhill Exports v Pope, 12 NY2d 491.) II. The complaint should be dismissed as it fails to state a cause of action. (Wiseman v Knaus, 24 AD2d 869; Zaldin v Concord Hotel, 48 NY2d 107; Sharp v Kosmalski, 40 NY2d 119.) III. The insolvency of the decedent’s estate is a condition precedent to the intervention of equity; a question of fact exists as to whether the decedent’s estate was insolvent. (Simonds v Simonds, 45 NY2d 233; Lewis v City of Lockport, 276 NY 336; Empire Eng. Corp. v Mack, 217 NY 85; O’Hagan v Kracke, 165 Misc 4, 253 App Div 632.) IV. The complaint should be dismissed, as the court should not proceed in the absence of a person who should be a party. (Simonds v Simonds, 45 NY2d 233; Bomeisler v Forster, 154 NY 229.) V. Defendant/appellant should be given the opportunity to raise the affirmative defenses of laches and the Statute of Limitations. (Glenesk v Guidance Realty Corp., 36 AD2d 852.)

      James P. Dawson for respondents.
    I. In reversing Special Term, the court below did not expressly or impliedly find new facts. II. The solvency of decedent’s estate is irrelevant. (Simonds v Simonds, 45 NY2d 233; Blank v La Montagne, Chapman Co., 123 Misc 238; Lengel v Lengel, 86 Misc 2d 460.) III. The complaint states a cause of action. IV. All necessary parties are joined in this action. (Matter of Castaways Motel v Schuyler, 24 NY2d 120; Matter of Figari v New York Tel. Co., 32 AD2d 434.) V. The general denials are insufficient to raise triable issues. (Dahlstrom v Gemunder, 198 NY 449; Kirschbaum v Eschmann, 205 NY 127.)
   OPINION OF THE COURT

Jones, J.

Where as an incident of a separation agreement a decedent husband has agreed to continue his children as beneficiaries of a policy of insurance on his life, a constructive trust for their benefit will be impressed on the proceeds of such insurance in the hands of the decedent’s second wife to whom they had been paid under a change of beneficiary designation.

On June 9, 1970, John and Carol Markwica entered into a separation agreement, paragraph 6 of which provided: “The husband agrees that he shall continue the children as beneficiaries on any and all life insurance policies he now owns.” At that time John was insured in the amount of $10,000 under a group life insurance policy by virtue of his employment with Republic Steel Corporation.

On April 22,1971, John and Carol were divorced. On April 26, 1975 John married Dorothy Davis, defendant in this action, and on May 10, 1975 named her as beneficiary of his group life insurance policy. John died on June 22, 1980, and the proceeds of the life insurance policy were paid to Dorothy on July 11, 1980. No proof is tendered to show that she had had any knowledge of the provisions of paragraph 6 of the 1970 separation agreement.

The present action was instituted by and on behalf of John and Carol’s children on August 6,1982 to recover the proceeds of the life insurance policy. Supreme Court denied the children’s motion for summary judgment, but the Appellate Division reversed and granted the motion. We affirm.

On appeal before us defendant argues that there are questions of fact which require a trial, thus precluding summary judgment, in particular whether the $10,000 policy of life insurance at issue was in existence at the time of the execution of the separation agreement and if so whether it was within the description, “life insurance policies he now owns”. As to the former question it is alleged in paragraph 8 of the complaint that the $10,000 policy was in existence at the time of execution of the separation agreement, and in her bill of particulars defendant stated that she had received the sum of $11,000 plus interest on account of “a certain group life insurance policy referred to in paragraph ‘8’ of Plaintiffs’ Complaint.” We read that as an implicit admission that the $10,000 policy was then in existence; moreover, no proof is tendered that it did not then exist.

With respect to the issue of “ownership”, it is not contested that John was the insured and that he possessed the right to change beneficiaries, the exercise of which right gave rise to the present lawsuit. In the absence of tender, on the motion for summary judgment, of evidentiary proof that John and Carol intended some other meaning for the word “owns”, we conclude that the group life insurance policy of which John was the insured and as to which he retained' the right to change the beneficiary falls within the scope of paragraph 6 of their separation agreement. (Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172.)

Defendant next asserts that the failure to establish that John’s estate was insolvent (and thus unable to respond in damages in an action brought against the estate for breach of his contract to continue the children as beneficiaries on the policy) is fatal to their recovery in this action, and that, in any event, the estate is a necessary party to this action. There is no merit to either contention. The present action is grounded in principles of the law of restitution for unjust enrichment. Defendant, having furnished no consideration for the receipt of the proceeds of the life insurance policy, has received a gratuitous benefit and would be unjustly enriched in the eyes of the law were she to retain those proceeds against the claims of the children for breach by their father of his agreement to continue them as beneficiaries of the policy (Restatement, Restitution 2d, Tent Draft No. 1 [1983], § 1). That the children might also have a breach of contract claim against their father’s estate is of no moment so far as the liability of defendant to the children is concerned. (Cf. Lengel v Lengel, 86 Misc 2d 460 [constructive trust imposed on insurance proceeds in hands of second wife without reference to any claim against decedent’s estate]; Appelman v Appelman, 87 Ill App 3d 749 [constructive trust impressed on proceeds of replacement policy without reference to liability or insolvency of decedent’s estate]; McKissick v McKissick, 93 Nev 139 [constructive trust impressed on insurance proceeds in action in which decedent’s estate was a party and was solvent]; Sinsel v Sinsel, 47 Ore App 153 [constructive trust impressed on insurance proceeds; claim against decedent’s estate not exclusive remedy]; see, also, Ehrlich v Cohn, 1 AD2d 1004, affd 2 NY2d 886 [insurer ordered to pay proceeds of life insurance policy to children where decedent had promised to designate them as beneficiaries and continue policy in force]; Locomotive Engrs. Mut. Life & Acc. Ins. Assn. v Locke, 251 App Div 146, affd 277 NY 584 [insurer ordered to pay first wife the proceeds of a policy he promised to maintain in her favor]; Salinas v Salinas, 187 Misc 509 [in action for insurance proceeds based on decedent’s promise, plaintiff held not limited to action for breach of contract].) This is not an instance in which alternative remedies may be available as against the same defendant (see Restatement, Restitution 2d, Tent Draft No. 1 [1983], § 9). By similar reasoning, the decedent’s estate is not a necessary party to the present action.

Finally, although not pleaded in her answer, defendant sought by conclusory assertions in her papers in opposition to the children’s motion for summary judgment, to raise affirmative defenses of laches and prior dissipation of the life insurance proceeds received by her (see Augustine v Szwed, 77 AD2d 298, 301-302). In the Appellate Division she applied for leave to amend her answer to set up these defenses. By necessary implication, the Appellate Division denied that application. There is no basis in the record for a reversal by our court of that determination (Bardere v Zafir, 63 NY2d 850).

In sum the children have established on the record that their father promised to continue them as beneficiaries of the $10,000 group life insurance policy on his life, that in violation of that promise he changed the beneficiary designation in favor of his second wife, and that she received the proceeds of the policy without giving consideration therefor or for the designation in her favor. The children have accordingly proved a restitutional claim for unjust enrichment for which the remedy, equitable in origin, of imposition of a constructive trust in their favor on the insurance proceeds is a proper form of relief in the circumstances.

For the reasons stated, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs.


text:
    James C. Benjamin, an Infant, by His Mother and Natural Guardian, Dorothy Benjamin, et al., Appellants, v City of New York, Respondent.
    Argued November 19, 1984;
    decided December 18, 1984

      POINTS OF COUNSEL

      Ignatius John Melito, Thomas R. Newman and Terry D. Horner for appellants.
    I. Plaintiffs made out a prima facie case since the evidence established that the City breached its duty to keep its property, which it permitted to be used as a public park and playground, in a reasonably safe condition. (Caldwell v Village of Is. Park, 304 NY 268; Nicholson v Board of Educ., 36 NY2d 798; Collentine v City of New York, 279 NY 119; Cappel v Board of Educ., 40 AD2d 848; Mayer v Temple Props., 307 NY 559; Rhabb v New York City Housing Auth., 41 NY2d 200; Parks v City of New York, 111 App Div 836,187 NY 555; Weber v City of New York, 18 Misc 2d 590,13 AD2d 823; Matter of Wade v City of New York, 65 AD2d 534.) II. The City’s negligence was a proximate cause of plaintiffs’ injuries. (Derdiarian v Felix Contr. Corp., 51 NY2d 308; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Kush v City of Buffalo, 59 NY2d 26.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John R. Hupper, Jr., of counsel), for respondent.
    I. No reasonable jury could fail to find that the City exercised reasonable care in its maintenance of the lot; in the alternative, the weight of the evidence showed that the City had exercised reasonable care. (Basso v Miller, 40 NY2d 233; Smith v Arbaugh’s Rest., 469 F2d 97, 412 US 939; Greene v Sibley, Lindsay & Curr Co., 257 NY 190; United States v Busic, 587 F2d 577, 446 US 398; Jenkins v Bierschenk, 333 F2d 421; People ex rel. MacCracken v Miller, 291 NY 55; Pretto v Leiwant, 80 AD2d 579; Celani v Interstate Motor Frgt. Systems, 30 AD2d 772; Goldstein v Lentino Constr. Corp., 8 AD2d 274; Cavadi v New York City Tr. Auth., 7 AD2d 299.) II. Any alleged negligence by the City did not cause plaintiffs’ injuries. (Sheehan v City of New York, 40 NY2d 496; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Martinez v Lazaroff, 48 NY2d 819; Ventricelli v Kinney System Rent A Car, 45 NY2d 950; Rivera v City of New York, 11 NY2d 856; Saugerties Bank v Delaware & Hudson Co., 236 NY 425; Cohan v Milano, 79 AD2d 579, 55 NY2d 926; Ohman v Board of Educ., 300 NY 306;
      Kulaga v State of New York, 37 AD2d 58, 31 NY2d 756; Mack v Altmans Stage Light. Co., 98 AD2d 468.) III. Infant plaintiffs’ contributory negligence bars plaintiffs’ recovery. (Dominquez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528; Camardo v New York State Rys., 247 NY 111; Herron v High Ground Dairy Co., 153 App Div 338.)
   OPINION OF THE COURT

Per Curiam.

During the afternoon of June 17, 1974, plaintiffs and other children were playing softball on a vacant, City-owned lot between two buildings. One of the other boys obtained a can of lacquer from a nearby van, poured the lacquer into a metal pipe, and then started a fire. As plaintiffs gathered to watch, an explosion occurred and plaintiffs were seriously burned. They commenced this action for damages against the City, alleging that it breached its duty to keep the lot reasonably safe by failing to take adequate precautions to minimize the danger to children posed by rubbish fires which, according to some witnesses, occurred from time to time on the property and were on occasion extinguished by City fire fighters. The jury returned a verdict in plaintiffs’ favor but the Appellate Division unanimously reversed, on the law, and dismissed the complaint, holding that the evidence established neither a duty nor proximate cause.

A municipality’s duty to maintain its parks in reasonably safe condition includes not only physical care of the property but also prevention of ultrahazardous and criminal activity of which it has knowledge (Rhabb v New York City Housing Auth., 41 NY2d 200, 202). Accordingly, we have recognized a duty to prevent the foreseeable continuation of activity such as the discharge of fireworks (Caldwell v Village of Is. Park, 304 NY 268, 275; see, also, Nicholson v Board of Educ., 36 NY2d 798). Even if we were to assume that the vacant lot involved here can be likened to a park in view of its use by children for play, the condition complained of cannot be analogized to the ultrahazardous, illegal activity necessary for imposition of a duty on a municipality. Occasional rubbish fires on a vacant lot, the scope of which is readily observable even to school-age children, are not of such a nature as to require the City to provide supervision or construct a locked fence, as suggested by plaintiffs. Finding no duty, we do not reach the issue of causation.

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

Chief Judge Cooke (dissenting). Because I cannot agree that, as a matter of law, the City met its duty to keep the lot in a reasonably safe condition, I respectfully dissent.

The pivotal issue before this court is whether the Appellate Division correctly concluded that the verdict in favor of plaintiffs was not supported by sufficient evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 497). On this review, then, the evidence must be viewed in the light most favorable to plaintiffs to determine if there was any rational basis upon which the jury could have found liability (see id., at p 499; Rhabb v New York City Housing Auth., 41 NY2d 200, 202).

There is evidence in the record that would support the following: (1) plaintiff was injured on a vacant lot owned by the City, which was used as a park or playground for neighborhood children; (2) although children may not have been expressly invited to play there, the jury could have found an implied invitation from evidence that defendant was aware that children often played there and failed to take measures to exclude them from the area (see Nicholson v Board of Educ., 36 NY2d 798, 799-800); (3) the lot had been cleared by a neighborhood association with the help of equipment from the City Sanitation Department; (4) defendant permitted a sign on its property describing the lot as “the Future Home of a Park for the Community Children. Keep it Clean — Curb Dogs”; (5) when garbage accumulated on the lot, it was removed by Sanitation Department workers upon the request of neighborhood residents; (6) several witnesses indicated that rubbish fires occurred on the lot as frequently as every two weeks or more and that the City Fire Department had extinguished these fires many times; and (7) in addition, patrolling police officers had been observed warning youths to put such fires out and to clear away from the area.

Defendant does not seriously contest that it knew that children played on the lot. Rather, it stresses that the property was maintained in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Basso v Miller, 40 NY2d 233; 241). Defendant claims that the probability of serious injury was extremely low, that the financial burden of supervising the lot would have been excessive and that fencing in the area would have been ineffective. Defendant admits its failure to exclude playing children from the lot but, surprisingly, justifies this general practice as a social good providing children with an additional playing area off the streets.

Although defendant’s practice may very well be socially useful, that fact does not, as a matter of law, excuse defendant from any duty of care (cf. Sheehan v North Country Community Hosp., 273 NY 163, 165-166). When the City knows that children are playing on one of its vacant lots, the conduct required to fulfill its duty to maintain its property in reasonably safe condition may rationally be found to require more action than if the lot was vacant and unused by anyone. Similarly, less may be required of the City when it has no notice of the children’s activity.

The question narrows to whether the lot was maintained in a reasonably safe condition (see Kush v City of Buffalo, 59 NY2d 26, 31; Rhabb v New York City Housing Auth., 41 NY2d 200, 202, supra). As the majority states, defendant’s duty would include prevention of known ultrahazardous or criminal activities (see Nicholson v Board of Educ., 36 NY2d 798, 799, supra). Its obligation, however, is not limited to those situations which rise to the level of ultrahazardous or illegal activities (see Basso v Miller, 40 NY2d 233, 240-241, supra). The duty is to exercise that degree of care against all foreseeable dangers which would be reasonable under the circumstances (see id.; Kush v City of Buffalo, 59 NY2d 26, 30, supra; Caldwell v Village of Is. Park, 304 NY 268, 274).

There was sufficient proof for a rational juror to conclude that defendant had actual or constructive notice of the occurrence of rubbish fires (see Rhabb v New York City Housing Auth., 41 NY2d 200, 202, supra). The fact that the scope of a fire is “readily observable even to school-age children” (majority opn, at p 46) is in no way a final determinant of its dangerous nature. The hazardous nature of open, uncontrolled garbage fires in a children’s play area seems obvious, or certainly, it would not be utterly irrational for a juror to consider such a condition dangerous. For example, children could be burned by getting too close to the fire or by throwing additional material on the fire; it could spread unexpectedly beyond its original confines; or there could be certain explosive substances in the garbage, such as aerosol cans, which could shoot out of the general area of the fire.

Whether defendant exercised the degree of care necessary to protect children on the lot from injury due to uncontrolled fires was a question of fact for the jury (see Caldwell v Village of Is. Park, 304 NY 268, 274, supra; Larusso v City of New York, 282 NY 760, 762). It cannot be said that, as a matter of law, the jury erred in finding that the City’s failure to take some protective measure was a breach of that duty (see Kush v City of Buffalo, 59 NY2d 26, 31, supra; Caldwell v Village of Is. Park, 304 NY 268, 274, supra) which proximately caused plaintiffs’ injuries (see Kush v City of Buffalo, supra, at p 33; Meizlik v Benderson Dev. Co., 51 AD2d 676, 677).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for a 0 consideration of the facts.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion; Chief Judge Cooke dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.


author: Meyer, J.

text:
    In the Matter of Town of Islip et al., Respondents, v Mario M. Cuomo, as Governor of the State of New York, et al., Appellants.
    Argued November 15, 1984;
    decided December 18, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Stuart Miller, Robert Hermann, Peter H. Schiff, James A. Sevinsky and Ezra I. Bialik of counsel), for appellants.
    ECL 27-0704 addresses a matter of State concern and therefore does not violate the home rule provisions of the State Constitution. (Adler v Deegan, 251 NY 467; Matter of Kelley v McGee, 57 NY2d 522; Wambat Realty

      Corp. v State of New York, 41 NY2d 490; Town of Monroe v Carey, 96 Misc 2d 238, 46 NY2d 847; Town of Junius v Flacke, 71 AD2d 423, 53 NY2d 616; Town of Hempstead v Flacke, 82 AD2d 183; Matter of Vim Constr. Co. v Board of Assessors, 82 AD2d 537; Environmental Defense Fund v Costle, 439 F Supp 980.)

      Guy W. Germano, Islip Town Attorney (Christine C. Hilgendorff and Doris E. Roth of counsel), and Richard Ehlers, River-head Town Attorney (Bernard E. Gegan of counsel), for respondents.
    The enactment of the land burial law as a special law violates the home rule provisions of the State Constitution. (Adler v Deegan, 251 NY 467; Wambat Realty Corp. v State of New York, 41 NY2d 490; Matter of Mayor of City of N. Y. [Elm St.], 246 NY 72; Mehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190; Floyd v New York State Urban Dev. Corp., 33 NY2d 1; Farrington v Pinckney, 1 NY2d 74; Sun Print. & Pub. Assn. v Mayor, 152 NY 257; Matter of McAneny v Board of Estimate & Apportionment, 232 NY 377; Matter of Kelley v McGee, 57 NY 2d 522; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85.)
   OPINION OF THE COURT

Meyer, J.

The limitation upon the power of the Legislature to act by special law in relation to the property, affairs or government of a local government contained in article IX (§ 2, par [b], cl [2]) of the New York Constitution must be read together with section 3 (par [a], cl [3]) of the same article, which declares that, “Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to: * * * Matters other than the property, affairs or government of a local government.” So read the limitation applies only to a special law which is directly concerned with the property, affairs or government of a local government and unrelated to a matter of proper concern to State government. Although ECL 27-0704, which limits disposal of solid waste by landfill in Nassau and Suffolk Counties, is a special law which affects town property (the continued use of existing landfills and the use of presently owned town property for new landfills) its purpose is the protection of the sole source aquifer for Nassau, Suffolk and part of Queens from pollution, a matter of State concern. It was, therefore, within the power of the Legislature under article IX (§ 3, par [a], cl [3]) to enact the Environmental Conservation Law section without the request or message of necessity referred to in section 2 (par [b], cl [2]) of that article. The judgment of Special Term, Suffolk County, should be reversed, with costs, and the matter remitted to that court with directions to enter partial judgment declaring ECL 27-0704 not to violate article IX (§ 2, par [b], cl [2]) of the Constitution, and for further proceedings on the remaining causes of action.

I

Begun by order to show cause and petition, this proceeding, in seven causes of action, seeks both review of administrative action and a declaratory judgment. Special Term, without passing on other issues, held that ECL 27-0704 had been enacted in violation of article IX (§ 2, par [b], cl [2]) of the State Constitution and that Michael A. LoGrande had been added to the amended petition as a party in violation of CPLR 401, and entered judgment declaring the statute invalid and ineffective and ordering LoGrande deleted as a party to the proceeding. The matter is before us on direct appeal by respondents pursuant to CPLR 5601 (subd [b], par 2).

The bill which became ECL 27-0704 was a Governor’s Program Bill. The memorandum submitted to the Legislature stated the purpose of the bill to be “to phase out landfilling as a solid waste management practice and to accelerate the transition to resource recovery on Long Island. This measure is essential to protect the integrity of Long Island’s sole source aquifer” (1983 McKinney’s Session Laws of NY, p 2502). In support of the bill it also noted that, “Landfilling on Long Island has imperiled the integrity of its sole source aquifer. Continuation of these practices threatens to permanently pollute the drinking water supply for Long Island. Technology for resource recovery exists but implementation, has proven difficult. This bill is designed to provide cut off dates beyond which landfilling will b e reduced to an essential minimum’’ (id., p 2502).

The bill was enacted as chapter 299 of the Laws of 1988. Entitled as an act to amend the Environmental Conservation Law “in relation to land burial and disposal of solid waste in the counties of Nassau and Suffolk,” the act contained in its section 1 legislative findings that: “the land burial and disposal of domestic, municipal and industrial solid waste poses a significant threat to the quality of groundwater and therefore the quality of drinking water in the counties of Nassau and Suffolk. This threat is particularly dangerous since the potable water supply for the counties is derived from a sole source aquifer. Scientific evidence and analysis have identified the incapacity of land burial and disposal to isolate leaching chemicals and gases from the surrounding environment over the long term. Resource recovery of these wastes poses minimal threats to groundwater quality.”

The order to show cause by which the proceeding was commenced sought judgment pursuant to CPLR article 78 and article 30 for the relief sought in the complaint. Respondents cross-moved for summary judgment. Special Term, noting that the act was specific in referring only to Nassau and Suffolk Counties and that its legislative findings contained no statement that its subject was of State-wide concern, and concluding that prior cases which had held enactments not in violation of article IX of the Constitution, or predecessor provisions, had involved statutes State-wide in application or which could be characterized as “ordinary” legislation, held the section invalid because unconstitutionally enacted. We now reverse.

II

Provisions intended to provide some degree of autonomy to some or all local governments have been included in the Constitution of the State of New York since 1894, and all but one have framed the attempt to divide functions between State and local governments in terms of “property, affairs or government.” That the effort seeks to divide what is essentially indivisible by any scientific method of classification and has been productive of a great deal of uncertainty is attested by both academic writings (Asch, Municipal Home Rule in New York, 20 Brooklyn L Rev 201, 236; McBain, New York Proposal for Municipal Home Rule, 37 Political Sci Q 655, 661-663, 668; Richland, Constitutional City Home Rule in New York, 54 Col L Rev 311, 55 Col L Rev 598, passim; New York State Constitutional Convention Committee, 1938, Problems Relating to Home Rule and Local Government, vol XI, pp 4-5) and the number of cases dealing with the issue presented to this court.

The pertinent provisions of the present Constitution are article IX (§ 2, par [b], cl [2]) and article IX (§ 3, par [a], cl [3]; pars [c], [d], els [1], [4]). Section 2 provides in pertinent part that:

“(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:

* * *

“(2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, or (b), except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in his judgment constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two-thirds of the members elected to each house of the legislature.”

Section 3 (par [a], cl [3]) makes clear, however, that:

“(a) Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to:

* * *

“(3) Matters other than the property, affairs or government of a local government.” Section 3 (par [d], cl [1]) defines “general law,” clause (4) defines “special law,” and paragraph (c) of that section directs that, “Rights, powers, privileges and immunities granted to local governments by this article shall be liberally construed.”

The difficulty and uncertainty arises from the fact that laws not directly related to the “property, affairs or government” of a local government may nonetheless affect such property, affairs or government. The liberal construction provision of paragraph (c) of section 3 is of little help in that connection for it is not the breadth of the power of local government over its own property, affairs or government, but the limitation imposed on the power of the State over matters other than the property, affairs or government of a local government which is in question, and as to that, paragraph (a) of section 3 flatly declares that no restriction or impairment is intended.

Attempts at solution of the conundrum have concerned the purpose or function involved, the area covered and the form of the enactment. With respect to purpose or function, the question, as Chief Judge Cardozo (as he then was), concurring in Adler v Deegan (251 NY 467, 489-490), put it, is “has the State surrendered the power to enact local laws by the usual forms of legislation where subjects of State concern are directly and substantially involved, though intermingled with these, and perhaps identical with them, are concerns proper to the [local government]?” His answer was “that if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality” (id., at p 491), and the opinions of other Judges in the majority either essentially accepted that test (id., at p 475) or would have invalidated only a law which related “exclusively to the property, affairs or government of a city” (id., at p 481).

As it has evolved in later cases, the rule is that if “the subject matter of the statute is of sufficient importance to the State generally to render it a proper subject of State legislation * * * the State may freely legislate, notwithstanding the fact that the concern of the State may also touch upon local matters” (Matter of Kelley v McGee, 57 NY2d 522, 538; accord Matter of Radich v Council of City of Lackawanna, 61 NY2d 652, 654; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85, 90). Indeed, legislation on matters of State concern “even though of localized application and having a direct effect on the most basic of local interests does not violate the constitutional home rule provisions” (Matter of Board of Educ. v City of New York, 41 NY2d 535, 542; accord Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358, 373; Town of Monroe v Carey, 46 NY2d 847, affg 96 Misc 2d 238; Wambat Realty Corp. v State of New York, 41 NY2d 490).

Here, the State concern is the protection of the drinking water for a substantial portion of the State’s population and in an area which encompasses a substantial portion of the State’s commerce and industry. Our Constitution enjoins the Legislature to include in the protection of natural resources “adequate provision for the abatement of * * * water pollution” (art XIV, § 4). Legislation protecting the water supply of the City of Rochester has been upheld against the contention that it violated our constitutional home rule provisions (Matter of Board of Supervisors v WaterPower & Control Comm., 255 NY 531, affg 227 App Div 345-348) because it affected “the health and safety not only of the residents of Rochester, but of persons temporarily there * * * [and did] not deal solely with the ‘property, affairs or government’ of Rochester” (227 App Div, at pp 348-349; see also, Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164, 168). Legislation establishing a Sewer Authority for the City of Buffalo has been upheld against like challenge on the ground that protection of the city’s water supply against pollution by untreated sewage was “designed to remedy conditions affecting the public generally, though imposing restrictions or obligations upon a particular municipality as a means of affecting the larger purpose” (Robertson v Zimmermann, 268 NY 52, 59). Legislation related to health has been upheld in other contexts as well: in Pero v City of Batavia (63 NY2d 971, affg 99 AD2d 668) to invalidate a local law of the city establishing its own examining board of plumbers because inconsistent with section 40-a of the General City Law, a special law; in Town of Junius v Flacke (53 NY2d 616, affg 71 AD2d 423) to uphold State regulation of the town’s solid waste management facility. It follows that, as concerns the function or purpose of ECL 27-0704, the fact that it directly affects the right of the towns to continue use of existing landfill or of other property owned by it as a landfill does not invalidate the enactment.

No more determinative is the form in which ECL 27-0704 was enacted or the limitation of its coverage to Nassau and Suffolk Counties. The constitutional definition, quoted in footnote 5 above, of a special law as one which in terms and in effect applies to one or more, but not all, counties and the specific limitation of ECL 27-0704 to the Counties of Nassau and Suffolk leave no doubt that the section is in form a special law and applies only to a limited territory. Neither has, however, been cause for invalidation of statutes dealing with a matter of State concern. Salzman v Impellitteri (203 Misc 486, 508-509, affd 281 App Div 1023,1024, mod 305 NY 414) upheld the amendment to the Public Authorities Law which established the New York City Transit Authority and authorized the city to contract with it for operation of its transit properties, notwithstanding that it was a special law and limited to New York City. Robertson v Zimmermann (268 NY 52, supra) held the establishment of the Buffalo Sewer Authority by chapter 349 of the Laws of 1935 valid although it dealt with a particular municipality and interfered with its property. City of New York v Village of Lawrence (250 NY 429,434) upheld an act “undoubtedly, special or local in its terms and in its effect” which changed the boundary between the city and Nassau County because related to a matter of public concern, notwithstanding that it affected the property, affairs or government of the city (see, also, Pero v City of Batavia, 63 NY2d 971, supra; Metropolitan Transp. Auth. v County of Nassau, 28 NY2d 385, 391; Matter of Board of Supervisors v Water Power & Control Comm., 255 NY2d 531, supra).

We conclude that though ECL 27-0704 is limited territorially and as enacted was a special law in its form, its subject is a matter of general State concern, and that, therefore, respondents are entitled to partial summary judgment declaring it not to be in violation of article IX (§2, par [b], cl [2]) of the Constitution. Accordingly, the judgment of Special Term is reversed with directions to enter such a partial summary judgment and for further proceedings on the remaining causes of action.

Chief Judge Cooke and Judges Jasen, Jones, Simons and Kaye concur; Judge Wachtler taking no part.

Judgment reversed, with costs, and matter remitted to Supreme Court, Suffolk County, with directions to enter partial summary judgment and for further proceedings in accordance with the opinion herein.

      . The deletion of LoGrande as a party is of importance only in that the seventh cause of action of the amended petition, which alleged that ECL 27-0704 was a constitutionally invalid special law, was stated to be brought solely on LoGrande’s behalf. We consider the constitutional issue, nevertheless, because the first cause of action by its reference to section 12 of the Statute of Local Governments, which in turn refers to article IX of the Constitution, may be deemed to have sufficiently raised the question, because Special Term may be deemed implicitly to have allowed amendment of the seventh cause of action to state it as one on behalf of the town petitioners, and because paragraph 9 of the affidavit in support of respondent’s cross motion recognized that petitioners had asserted that the statute “violates the home rule provisions of the * * * State Constitution.” The issue was, therefore, fully briefed below and before us and was the basis of Special Term’s decision and judgment. No useful purpose would be served, therefore, by remanding for clarification of the judgment and order.

      . The memorandum summarized the provisions of the bill as follows:
      “The bill mandates a phase-out of landfills in the deep flow recharge zone of Long Island. This phase-out will proceed in accordance with the operation plans, for each landfill, as approved by the Commissioner. No new landfills will be permitted in the deep flow recharge zone.
      “The bill also provides for a seven year phase out of existing landfill operations outside the recharge zone except in those landfills where specific operating conditions can be met. New landfill facilities may be constructed only in conformance with the specifications provided in the bill.

        “The Commissioner of DEC is given authority to grant variances from those requirements where a municipality is proceeding in good faith towards resource recovery and where measures to minimize the adverse impacts of continued landfilling have been taken.
      “The bill permits the continued landfilling of clean fill materials that cannot be composted or pro~~ssed in a resource recovery facility.”

      . The exception, the Constitution of 1907, spoke of “property, affairs of government” (emphasis added). Whether intentional or inadvertent, the change apparently went unnoticed by the courts and the next revision (1924) reverted to the original phrase (Richland, Constitutional City Home Rule in New York, 54 Col L Rev 311, 324).

      . “(1) ‘General law.’ A law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.”

      . “(4) ‘Special law.’ A law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages.”


text:
    Arthur T. Davidson, Respondent, v Bronx Municipal Hospital et al., Appellants.
    Argued November 15, 1984;
    decided December 20, 1984

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ellen B. Fishman and Leonard Koerner of counsel), for appellants.
    Where plaintiff never sought leave to file a late notice of claim and the time for making such an application had expired, Special Term had no discretion to allow plaintiff to file a notice of claim nunc pro tunc. Accordingly, it was improper for Special Term to relieve plaintiff from compliance with the applicable statutes by deeming his summons and complaint to be a notice of claim and permitting a new action to be instituted. (Giblin v Nassau County Med. Center, 61 NY2d 67; Pierson v City of New York, 56 NY2d 950; Matter of Gelpi v New York City Health & Hosps. Corp., 90 AD2d 503; Gaynor v Town of Hoosick, 85 AD2d 844, 58 NY2d 699; Silbernagel v City of New York, 85 AD2d 586, 57 NY2d 691; Matter of Stoute v City of New York, 91 AD2d 1043; Fraccola v City of Utica, 77 AD2d 161; Perry v State of New York, 64 AD2d 799; Pierce v New York City Housing Auth., 43 AD2d 842; Brennan v City of New York, 88 AD2d 871, 59 NY2d 791.)

      Arthur T. Davidson, respondent pro se.

    I. A summons and complaint served within a 90-day notice of claim period had been uniformly held by the Appellate Court to be in complete satisfaction of the requirement of subdivision 1 of section-50-e of the General Municipal Law and section 7401 of McKinney’s Unconsolidated Laws of the State of New York. (Quintero v Long Is. R.R., 31 AD2d 844; Hines v City of Buffalo, 79 AD2d 218; Matter of Phaler v Hicks, 71 AD2d 820; Barber-Scotia Coll, v City of New York, 390 F Supp 525; Moskol v Sood, 404 F Supp 916.) II. The purpose of providing short terms of filing claims and actions against municipalities is to allow for prompt investigation to be made and for defenses to be prepared before it is too late to do so efficiently. (Teresta v City of New York, 304 NY 440; Leone v City of Utica, 66 AD2d 463, 49 NY2d 811.) III. The Legislature never intended the notice of claim to be used as a device to defeat the rights of people with legitimate claims. (Hopkins v East Syracuse Fire Dept., 49 Misc 2d 197; Matter of Greguski v Town of Oyster Bay, 19 Misc 2d 763.)
   OPINION OF THE COURT

Per Curiam.

On January 17, 1980, plaintiff’s violin was allegedly stolen from his automobile which was parked in a lot owned by Bronx Municipal Hospital. Plaintiff served a summons and complaint on the New York City Health and Hospitals Corporation on January 22,1980, a summons and complaint on the Corporation Counsel of the City of New York on January 28, 1980, and a notice of claim on the Comptroller of the City on May 5, 1980, 115 days after the theft.

Defendants moved for dismissal on the ground that plaintiff failed to comply with the statutory requirements for timely service of notices of claim prior to bringing suit. Special Term, deeming plaintiff’s service of a summons and complaint upon each defendant legally sufficient to constitute a valid notice of claim, granted defendants’ motion to a limited extent only. The court dismissed the action without prejudice to the institution of a new one, pursuant to CPLR 205 (subd [a]), by service of a proper complaint containing the required allegation, not included in the initial complaint, that a notice of claim had been served at least 30 days earlier (General Municipal Law, § 50-i; New York City Health and Hospitals Corporation Act, § 20, subd 1 [L 1969, ch 1016, as amd], McKinney’s Unconsolidated Laws of NY, § 7401, subd 1). The Appellate Division unanimously affirmed the order of Special Term, without opinion, and granted defendants leave to appeal. We agree with defendants’ argument that plaintiff’s summons and complaint did not constitute a valid notice of claim, and consequently that no timely notices of claim were ever served. We therefore modify the Appellate Division order to dismiss the complaint with prejudice.

Service of a notice of claim — the contents of which are prescribed by section 50-e of the General Municipal Law and section 7401 of McKinney’s Unconsolidated Laws of NY — is a condition precedent to a lawsuit against a municipal corporation. Plaintiff must not only plead in his complaint that he has served a notice of claim, but must also allege that the notice was served at least 30 days prior to commencement of the action and that in that time defendants neglected to or refused to adjust or to satisfy the claim (Giblin v Nassau County Med. Center, 61 NY2d 67, 73-74; General Municipal Law, § 50-i, subd 1; McKinney’s Unconsolidated Laws of NY, § 7401, subd 1). Failure to comply with provisions requiring notice and presentment of claims prior to the commencement of litigation ordinarily requires dismissal (Republic of Argentina v City of New York, 25 NY2d 252, 265; see, also, Parochial Bus Systems v Board of Educ., 60 NY2d 539, 548). The mandatory 30-day period between service of the notice of claim and the summons and complaint serves the salutary purpose of allowing municipal defendants to conduct an investigation and examine the plaintiff with respect to the claim (see General Municipal Law, § 50-h; McKinney’s Unconsolidated Laws of NY, § 7401, subd 2), and to determine whether the claims should be adjusted or satisfied before the parties are subjected to the expense of litigation (see Arol Dev. Corp. v City of New York, 59 AD2d 883; Devon Estates v City of New York, 92 Misc 2d 1077, 1078). Indeed, we are advised by defendants, who are subject to a great many claims, that notices of claim and complaints are processed by different administrative units, one for investigation and the other for litigation. By serving only a summons and complaint signalling a litigation, and not the statutory notice of claim followed by a summons and complaint, signalling a period for investigation, plaintiff frustrated such procedures and the legislative purpose served by the statutory scheme.

Having failed to comply with the law applicable to commencing an action against defendants, plaintiff’s claim must fail. Accordingly, the Appellate Division order should be modified, with costs to defendants, by dismissing the complaint with prejudice, and, as so modified, affirmed.

Chief Judge Cooke and Judges Jasen, Jones, WachtEer, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed.

       Nor did plaintiff, a lawyer who has previously utilized the correct procedure in litigation against the City, avail himself of the opportunity to seek leave to serve a notice of claim nunc pro tunc.