author: Hancock, Jr., J.

text:
    Nassau Roofing & Sheet Metal Co., Inc., Plaintiff, v Facilities Development Corporation, Formerly Health and Mental Hygiene Facilities Improvement Corporation, Respondent, et al., Defendants; Celotex Corporation, Defendant and Third-Party Plaintiff-Appellant, and Construction Consultants, Inc., Third-Party Defendant-Respondent. (And Another Third-Party Action.)
    Argued March 17,1988;
    decided April 28, 1988

      POINTS OF COUNSEL

      Dan M. Rice, Craig M. Nisnewitz and Michael S. Torre for defendant and third-party plaintiff-appellant.
    Celotex’s third-party complaint states a cause of action for contribution against CCI. (Schauer v Joyce, 54 NY2d 1; Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21.)

      John Carter Rice, Edward M. Douglas and Charles B. Stock-dale for third-party defendant-respondent.
    I. The third-party complaint of defendant-appellant Celotex Corporation fails to state a cause of action. (Horn v Ketchum, 27 AD2d 759; Cleveland v Farber, 46 AD2d 733; City of Utica v Holt, 88 Misc 2d 206; Garrett v Holiday Inns, 86 AD2d 469, 58 NY2d 253; Schauer v Joyce, 54 NY2d 1; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786; Psakis v Jacobs, 89 AD2d 585; Bergan v Home for Incurables, 75 AD2d 762; Dole v Dow Chem. Co., 30 NY2d 143; Carrols Equities Corp. v Villnave, 76 Misc 2d 205, 49 AD2d 672.) II. Further grounds exist, apart from those expressed by Special Term, warranting the dismissal of the third-party complaint and cross claim. (Murphy v Barron, 45 Misc 2d 905; Rothschild v Title Guar. & Trust Co., 204 NY 458; Nahe v Mikkelsen, 108 Misc 378; Williams v Whittell, 69 App Div 340; Matter of Parker, 118 Misc 121, 204 App Div 876, 236 NY 583; Gardner v New York Mut. Sav. & Loan Assn., 35 Misc 115, 67 App Div 141; Greenfield v Denner, 6 AD2d 263, 6 NY2d 867; Bell v Greenwood, 229 App Div 550; Venner v New York Cent. & Hudson Riv. R. R. Co., 177 App Div 296, 226 NY 583, 249 US 617; Hamilton v Muncie, 182 App Div 630, 227 NY 643.)

      Robert Abrams, Attorney-General (Richard J. Dorsey, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
    Celotex’s baseless third-party action was properly dismissed by the court below. (Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21; Schauer v Joyce, 54 NY2d 1.)
   OPINION OF THE COURT

Hancock, Jr., J.

When a newly installed roof failed, a construction consultant advised the owner that it must be removed and replaced. The consultant claimed the cause was defective insulation and that the supplier of the insulation should pay the cost of replacing the roof. The insulation supplier, however, contended that the insulation was not defective, that the roof was sound, and the construction consultant at fault for erroneously advising the owner that the roof required replacement. In an action to determine the ultimate responsibility for the cost of replacing the roof, does the insulation supplier have a valid claim for Dole contribution against the construction consultant? This is the question raised by Celotex Corporation, the insulation supplier, in its appeal from an order of the Appellate Division which affirmed Special Term’s dismissal, pursuant to CPLR 3211 (a) (7), of Celotex’s third-party action against Construction Consultants, Inc. (Consultants). For reasons which follow, we conclude that Celotex has no claim for contribution. The order, therefore, should be affirmed.

I

The roof system, which allegedly failed and gives rise to this litigation, was installed on the Lincoln Hospital in The Bronx by plaintiff Nassau Roofing and Sheet Metal Company pursuant to a contract with Facilities Development Corporation (Facilities), the public benefit corporation responsible for construction work on the hospital. Nassau Roofing purchased the insulation for the job from Celotex. After the job was completed, damage to the roof assertedly resulted from the excessive coefficient of expansion of the polyurethane insulation supplied by Celotex. Facilities retained third-party defendant Consultants which advised it that the roof must be entirely removed and replaced. When Nassau Roofing refused to replace the roof, Facilities hired another contractor to do so at a cost of $1,500,000.

Nassau then commenced the instant action against Facilities and various subcontractors and materialmen as defendants, including Celotex. Nassau seeks, among other things, a declaration that it is not responsible for the cost of replacing the roof or, if it is found liable to Facilities for such cost, it should have contribution or indemnification from Celotex, which allegedly caused the damage by supplying Nassau with defective insulation. Facilities counterclaimed against Nassau for the cost of replacing the roof and cross-claimed against Celotex for breach of warranty and strict products liability. Certain codefendants have interposed cross claims for contribution or indemnity on various theories against Celotex. Based on the several claims lodged against it, Celotex commenced a third-party action seeking Dole contribution from Consultants for the cost of replacing the roof. The record contains no complaint by Facilities against Consultants and there is no indication that such an action has been commenced. Celotex contends, however, that the damages suffered by Facilities were caused by the "negligence, fault and/or wrongdoing” of Consultants in advising Facilities that the roof required replacement.

In affirming Special Term’s dismissal of Celotex’s third-party claim, the Appellate Division noted that the only duty owed by Consultants was in connection with the advice it gave to Facilities after the construction job was complete, and that, "even assuming a breach of that duty, it could not be a contributing cause to any recoverable damages in this case” (125 AD2d 754, 756). The sole question is whether Celotex has pleaded a valid claim for contribution under any theory against Consultants. Because we agree with the Appellate Division that it has not, the order of that court should be affirmed.

II

The applicable rules governing contribution under Dole v Dow Chem. Co. (30 NY2d 143) may be quickly summarized. The basic requirement for contribution under Dole, now codified in CPLR 1401, is that the culpable parties must be "subject to liability for damages for the same personal injury, injury to property or wrongful death” (emphasis added) (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568; Garrett v Holiday Inns, 58 NY2d 253, 258; 2A Weinstein-Korn-Miller, NY Civ Prac jffl 1401.10a, 1401.10b). Under Dole and CPLR article 14, a claim for contribution will lie whether or not the culpable parties are allegedly liable for the injury under the same or different theories (see, Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 28; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401, at 362), and whether or not the party from whom contribution is sought is allegedly responsible for the injury as a concurrent, successive, independent, alternative, or even intentional tort-feasor (see, Board of Educ. v Sargent, Webster, Crenshaw & Folley, supra, at 27; Schauer v Joyce, 54 NY2d 1, 5; Siegel, NY Prac § 172, at 213; see, McLaughlin, Practice Commentaries, op. cit, at 362-363).

While the culpable party from whom contribution is sought will ordinarily have breached a duty owed directly to the injured party, this is not invariably so (see, Guzman v Haven Plaza Hous. Dev. Fund Co., supra, at 568, n 5 ["In the unusual case the right to apportionment may arise from the duty owed from the contributing party to the party seeking contribution (see, e.g., Garrett v Holiday Inns, 58 NY2d 253, 258-263; Nolechek v Gesuale, 46 NY2d 332, 338, 341)”]; see also, 2A Weinstein-Korn-Miller, NY Civ Prac j[ 1401.10a). The critical requirement for apportionment under Dole or CPLR article 14 is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought (see, Schauer v Joyce, supra; Roma v Buffalo Gen. Hosp., 103 AD2d 606, 608; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786; Taft v Schaffer Trucking, 52 AD2d 255, 259, appeal dismissed 42 NY2d 974; 2A Weinstein-Korn-Miller, NY Civ Prac fl 1401.10b).

Ill

It is this essential requirement — that the parties must have contributed to the same injury — which defeats Celotex’s third-party claim here. The injury suffered by Facilities for which Celotex is being sued and for which it seeks contribution from Consultants is a bad roof which had to be replaced. But Consultants — which had nothing to do with the installation of the roof — did not cause or contribute to this injury. If Consultants caused any injury to Facilities, it was the financial damage Facilities sustained from being negligently advised to replace a good roof, not the loss Facilities incurred from having a bad roof. Needlessly replacing a sound roof is obviously not the same as having a defective roof; it is an entirely separate and distinct injury. For this reason, the claim for contribution must fail.

Although Celotex and Consultants did not contribute to the same injury, Celotex contends that it should be permitted to obtain contribution from Consultants as a successor tort-feasor, because, by negligently advising Facilities to install a new roof, it increased the damages which could be recovered against Celotex. This reasoning is flawed, however, because the claimed negligence of Consultants could not have augmented the damages for which Celotex may be held responsible. It is possible, as Celotex alleges, that Construction Consultants was negligent in advising Facilities to replace the roof when, in fact, the roof was sound. To the extent that Facilities, because of this erroneous advice, needlessly incurred the cost of replacing a sound roof, Celotex would have done nothing wrong, would not be liable to the owner, and could have no basis for its claim over. If, on the other hand, Consultants is correct and the roof required replacement in whole or part, then Celotex could be held responsible for such cost. In that event, Consultants would have done nothing wrong and would not have augmented the damages for which Celotex could be held liable.

Schauer v Joyce (supra) relied on by Celotex, illustrates the situation where contribution is proper. In Schauer, a legal malpractice action, plaintiffs damages resulted from the successive mishandling of a matrimonial matter by two different lawyers. In holding that the first lawyer had a valid claim for contribution from the second, we noted specifically that the "pleadings set forth an ample basis for holding that the alleged negligence of both attorneys was responsible for the same injury” (Schauer v Joyce, supra, at 6 [emphasis added]).

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

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

Order affirmed, with costs.

      . In the courts below Celotex urged both indemnification and contribution as bases for its third-party action against Consultants. On appeal, however, Celotex argues only that the third-party complaint should be sustained as stating a valid claim for contribution.

      . Consultants also contend, for the first time on appeal, that any duty it owed to Facilities was purely contractual and, therefore, not subject to contribution, despite Celotex’s use of "language familiar to tort law” in its complaint (see, Board of Educ. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 24, 28-29). Because the arguments raised by Consultants in the lower courts provide a sufficient basis for dismissing the third-party claim, we need not address this argument.

      . The Appellate Division also affirmed Special Term’s dismissal of a cross claim against Consultants brought by Lord Electric Company, Inc. Lord Electric has not appealed.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of Joseph K. Bonacorsa, Appellant, v John Van Lindt, as Chairman of the New York State Racing and Wagering Board, et al., Respondents.
    Argued March 21, 1988;
    decided May 3, 1988

      POINTS OF COUNSEL

      Joseph A. Faraldo for appellant.
    I. The court below erred when it failed to rely on petitioner’s certificate of good conduct and the statutory presumption created by Correction Law § 753 (2) in order to annul respondent’s determination. (Matter of Marra v City of White Plains, 96 AD2d 17; Matter of Maloney v Waterfront Commn., 96 Misc 2d 688; Matter of Cantor v New York State Racing & Wagering Bd., 73 AD2d 544; Matter of La Greca Rest. v New York State Liq. Auth., 33 AD2d 537; Matter of Pell v Board of Educ., 34 NY2d 222.) II. The determination was beyond the Racing and Wagering Board’s authority. (Matter of Stewart v Civil Serv. Commn., 84 AD2d 491.)

      Robert Abrams, Attorney-General (Melissa A. Saren and O. Peter Sherwood of counsel), for respondents.
    The Board’s denial of petitioner’s license application was not arbitrary or capricious and, therefore, the courts may not substitute their judgment for that of the Board. (Barry v Barchi, 443 US 55; Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589; Lasky v Van Lindt, 115 Misc 2d 259; Matter of Tappis v New York State Racing & Wagering Bd., 36 NY2d 862; Nass v Local 348, 503 F Supp 217, 657 F2d 264; People v Honeckman, 87 Misc 2d 117; Matter of Stewart v Civil Serv. Commn., 84 AD2d 491; Schultz v Waterfront Commn., 35 AD2d 373; Glucksman v Cuomo, 62 AD2d 978.)
   OPINION OF THE COURT

Simons, J.

Petitioner, Joseph Bonacorsa, was formerly licensed as an owner-trainer-driver of harness race horses. In 1974 his license was revoked because he was convicted of Federal crimes. This article 78 proceeding challenges the Racing and Wagering Board’s denial of an application he made for a new license in 1985. Defendant appeals from an order of the Appellate Division which dismissed his petition, contending that the Board’s action violated article 23-A of the Correction Law (§§ 750-755) which prohibits a public agency from denying a license because of the applicant’s prior criminal record or lack of good moral character when such finding is based upon the fact that the applicant has been convicted of criminal offenses. He notes that he has received a certificate of good conduct from the State Board of Parole and that he is, therefore, entitled to a presumption of rehabilitation. The Board contends that its action was authorized by an exception to the statute permitting denial in cases in which there is a direct relationship between petitioner’s convictions and the license he seeks (Correction Law § 752 [1]).

Disposition of the appeal requires us to interpret the provisions of Correction Law § 753, as they apply to section 752. Specifically, we must determine whether the presumption of rehabilitation accorded a certificate of good conduct or a certificate of relief from civil disabilities by section 753 (2) applies when the public agency or private employer denies an application on the ground that there is a direct relationship between the criminal conviction and the license or employment sought, and if so, whether, notwithstanding any presumption of rehabilitation, the public agency or private employer still has discretion to deny the application after examining the eight factors contained in section 753 (1). We answer both questions in the affirmative and conclude that the Board did not abuse its discretion in denying petitioner’s application.

I

In 1973, a Federal Grand Jury was investigating corruption in the sport of harness racing and particularly the activities of Forrest Gerry, Jr. Gerry had been barred from harness racing previously for allegedly leading a conspiracy to fix races at Yonkers Raceway and Roosevelt Raceway. Petitioner was a witness before the Grand Jury and as a result of his testimony he was charged with falsely testifying that a certain race horse was owned by his wife, when in fact the horse was owned by Gerry, and with soliciting another horse trainer, Steven Rubin, to testify falsely that he (Rubin) had sold a horse to petitioner’s wife when the sale had actually been made to Gerry (see generally, United States v Gerry, 515 F2d 130, cert denied 423 US 832; United States v Turcotte, 515 F2d 145, cert denied sub nom. Gerry v United States 423 US 1032). After trial, petitioner was convicted of one count of making a false declaration to a Federal Grand Jury investigating race fixing, in violation of 18 USC § 1623, and one count of obstructing justice before the same Grand Jury, in violation of 18 USC § 1503, and sentenced to two years’ imprisonment (see, United States v Bonacorsa, 528 F2d 1218, cert denied 426 US 935).

In 1977 petitioner completed his sentence and since then he has made several unsuccessful efforts to regain his license. On February 21, 1985 petitioner, after receiving a certificate of good conduct from the New York State Board of Parole, once again applied for a license and a hearing was held to consider his application. The Hearing Officer recommended denial, the Board confirmed his determination and petitioner instituted this article 78 proceeding to set aside its décision.

Supreme Court granted the petition, annulled the order and remitted the matter to the Board for further consideration and new findings of fact. It held that the provisions of section 753 (2) entitled petitioner to a presumption of rehabilitation because he possessed a certificate of good conduct even when, as here, the convictions had a direct relationship with the license sought to be obtained. It held further that the presumption of rehabilitation established a prima facie right to the license and that the presumption had not been overcome in this case because the Board had failed to offer any evidence to rebut it.

The Appellate Division unanimously reversed and dismissed the petition. Three Justices reasoned that the presumption of rehabilitation which derives from the certificate of good conduct does not apply when there is a direct relationship between the conviction and the license or employment sought or where there is an unreasonable risk to the safety or welfare of the public. Justice Sandler concurred in the result concluding that although a certificate of good conduct or a certificate of relief from civil disabilities "would appear to be relevant” to the unreasonable risk exception found in Correction Law § 752 (2), "[i]t is not easy to see how a presumption of rehabilitation on the part of an applicant is relevant to whether or not there is a direct relationship between the applicant’s prior conviction and the specific license or employment sought” (129 AD2d, at 522).

We granted petitioner leave to appeal.

II

Article 23-A of the Correction Law was enacted in 1976 in an attempt to eliminate the effect of bias against ex-offenders which prevented them from obtaining employment. Studies established that the bias against employing or licensing ex-offenders was not only widespread but particularly unfair and counterproductive. Although ex-offenders were urged when released from prison to find employment as a part of their rehabilitation, they had great difficulty in doing so because of their criminal records and this difficulty existed even though there was an absence of any connection between the employment or license and the crime committed, its circumstances or the background of the offender (see, Meltsner, Caplan & Lane, An Act to Promote the Rehabilitation of Criminal Offenders in the State of New York, 24 Syracuse L Rev 885, 905). Failure to find employment not only resulted in personal frustration but also injured society as a whole by contributing to a high rate of recidivism (see, 1976 NY Legis Ann, at 50).

Article 23-A sought to remove this obstacle to employment by imposing an obligation on employers and public agencies to deal equitably with ex-offenders while also protecting society’s interest in assuring performance by reliable and trustworthy persons. Thus, the statute sets out a broad general rule that employers and public agencies cannot deny employment or a license to an applicant solely based on status as an ex-offender. But the statute recognizes exceptions either where there is a direct relationship between the criminal offense and the specific license or employment sought (Correction Law § 752 [1]), or where the license or employment would involve an unreasonable risk to persons or property (Correction Law § 752 [2]). If either exception applies, the employer has discretion to deny the license or employment. The statute defines a "direct relationship” as one in which the "nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license or employment sought” (Correction Law § 750 [3]). It contains no similar definition of "unreasonable risk” for the obvious reason that a finding of unreasonable risk depends upon a subjective analysis of a variety of considerations relating to the nature of the license or employment sought and the prior misconduct.

Petitioner does not dispute that the direct relationship exception is applicable here. The question presented is the effect the certificate of good conduct has on his ability to receive a license, notwithstanding the existence of that direct relationship.

Petitioner asserts that the presumption of rehabilitation applies even where there is a direct relationship between the crime and the license sought, that it creates a prima facie entitlement to the license, and that his prima facie right to a license has not been adequately rebutted by the Board. Respondent claims that because petitioner was convicted of crimes directly relating to the racing industry, the certificate of good conduct does not create a presumption of rehabilitation. Alternatively, it urges that denial of the license was in any event not arbitrary or capricious because it retained discretion to deny the license after considering the eight factors contained in Correction Law § 753 (1).

We agree with petitioner that the presumption of rehabilitation created by the certificate of good conduct applies even when the statutory definition of direct relationship hits been satisfied. Because it does, the agency or employer must consider the factors mentioned in section 753 (1) to determine whether in fact the direct relationship is sufficiently attenuated to warrant issuance of the license (see, Matter of Marra v City of White Plains, 96 AD2d 17, 23). It appears that the Attorney-General accepted this interpretation of the statutes when previously considering the question (see, 1985 Opns Atty Gen No. 85-F2, at 14). After stating the general rule, he noted: "Consideration must be given to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which creates a presumption of rehabilitation in regard to the offenses covered by these certificates” (id., at 16, n).

The correctness of this statutory interpretation seems inescapable. Correction Law § 752 states unambiguously that in the absence of direct relationship or unreasonable risk, a conviction cannot be considered as a basis for denying a license or employment, whether or not the applicant has a certificate of relief from civil disabilities or a certificate of good conduct. Thus, the provisions of section 753 are of no consequence unless they either help determine if one of the two exceptions applies or, alternatively, aid the agency or employer in exercising its discretion to grant the license after it has been found that one does apply. If the presumption of rehabilitation contained in Correction Law § 753 (2) is to be given any meaning, the certificate must necessarily be considered where the direct relationship exception applies, though the public agency or private employer still retains discretion to deny the application, because the certificate is not necessary to obtain the benefits of the statute in cases which are not within the exception.

The interplay of the two exceptions and section 753 (1) is awkward, but to give full meaning to the provisions, as we must, it is necessary to interpret section 753 differently depending on whether the agency or private employer is seeking to deny the license or employment pursuant to the direct relationship exception (§ 752 [1]) or the unreasonable risk exception (§ 752 [2]). Undoubtedly, when the employer or agency relies on the unreasonable risk exception, the eight factors contained in section 753 (1) should be considered and applied to determine if in fact an unreasonable risk exists. The employer or agency may not assume that the exception applies and then consider the factors to determine whether the employment should be offered or the license should nevertheless be granted. Having considered the eight factors and determined that an unreasonable risk exists, however, the employer or agency need not go further and consider the same factors to determine whether the license or employment opportunity should be granted. Thus, when applied to subdivision (2) of section 752, the phrase "[i]n making a determination pursuant to section seven hundred fifty two” means in determining whether the unreasonable risk exception actually applies.

Section 753 must also be applied to the direct relationship exception because the prefatory language of section 753 (1) and (2), properly construed, specifies that the section shall apply to all parts of section 752. When considering the effect of section 753 on the direct relationship exception, however, a different analysis is required because "direct relationship” is defined by section 750 (3), and because consideration of the factors contained in section 753 (1) does not contribute to determining whether a direct relationship exists. We read the direction of section 753 that it applies "[i]n making a determination pursuant to section seven hundred fifty-two” to mean that, notwithstanding the existence of a direct relationship, an agency or private employer must consider the factors contained in section 753, to determine whether employment or a license should, in its discretion, issue.

The presumption of rehabilitation which derives from a certificate of good conduct or certificate of relief from civil disabilities, has the same effect, however, whether the employer or agency seeks to deny the application pursuant to the direct relationship exception or the unreasonable risk exception. In neither case does the certificate establish a prima facie entitlement to the license or employment. It creates only a presumption of rehabilitation, and although rehabilitation is an important factor to be considered by the agency or employer in determining whether the license or employment should be granted (see, Correction Law 753 [1] [g]), it is only 1 of 8 factors to be considered.

If the employer or agency considers all eight factors listed in section 753 (1), it need not in every case produce independent evidence to rebut the presumption of rehabilitation before denying a license or employment. In some cases, consideration of other factors such as severity of the criminal offenses, the age of the offender at the time of the offenses, the passage of time between the offenses and the application, and the nature of the license or employment sought can warrant denial of the license notwithstanding the absence of new evidence specifically addressed at overcoming the presumption of rehabilitation. In other cases failure of the agency or employer to rebut the presumption of rehabilitation with evidence suggesting that there has been no rehabilitation will result in an arbitrary and capricious determination.

Ill

Based on the record before us, however, the Racing and Wagering Board’s determination was not arbitrary or capricious.

The Hearing Officer's report, adopted by the Racing and Wagering Board, considered the other factors contained in section 753 (1) to determine whether the direct relationship between petitioner’s convictions and the license sought had been attenuated sufficiently. In petitioner’s favor, the Hearing Officer considered the general policy of the State to consider the licensure and employment of persons previously convicted of criminal offenses (Correction Law § 753 [1] [a]) and noted that several years had elapsed since the occurrence of petitioner’s convictions (§ 753 [1] [d]). He weighed against these factors, however, the fact that petitioner was not an inexperienced juvenile at the time of his crimes but a man in his fifties who had been licensed as an owner-trainer-driver for over 20 years, that he knew that Forrest Gerry had been denied a racing license for a number of years and that by aiding Gerry he was not only committing Federal crimes but also violating the Rules of the Racing and Wagering Board. He also considered the seriousness of petitioner’s two criminal offenses (Correction Law § 753 [1] [f]), both felonies carrying a maximum sentence of five years’ imprisonment and a $5,000 fine. While the weight that the Hearing Officer gave to these factors had to be measured in light of the certificate of good conduct and its attendant presumption of rehabilitation, it was not improper for him to consider them.

More importantly, the Hearing Officer considered the legitimate interest of the Board in protecting the safety and welfare of the general public not only because the statute requires it (§ 753 [1] [h]) but because the safety and welfare of the public is a factor particularly relevant in this case. Horse racing is the only sport in this State in which betting is legal and, therefore, has traditionally been heavily regulated (see, Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589, 596; Barry v Barchi, 443 US 55, 64). Denial of a license to an individual involved in a scheme to cover up for another who he knew had been barred from horse racing is a legitimate means of preventing the "appearance or the fact of impropriety” in the sport (Matter of Tappis v New York State Racing & Wagering Bd., 36 NY2d 862, 864). Based upon this record, the Racing and Wagering Board did not abuse its discretion in denying the application and did not discriminate against petitioner solely because he had been convicted of criminal offenses.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . Section 753 provides:
      "(1). In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors:
      "(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
      "(b) The specific duties and responsibilities necessarily related to the license or employment sought.

        "(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
      "(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
      "(e) The age of the person at the time of occurrence of the criminal offense or offenses.
      "(f) The seriousness of the offense or offenses.
      "(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
      "(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
      "(2). In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.”

      . A certificate of good conduct may be issued by the State Board of Parole when the Board is satisfied that (a) the applicant has conducted himself or herself in a manner warranting the issuance for a specified period of years — the length dependent upon the seriousness of the crime, (b) the relief granted is consistent with the rehabilitation of the applicant and (c) the relief granted is consistent with the public interest (Correction Law § 703-b).


author: Per Curiam.

text:
    In the Matter of SIN, Inc., Respondent, v Department of Finance of the City of New York, Appellant.
    Argued March 22,1988;
    decided May 3, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (James F. Eller, Glenn Newman and Stanley Buchsbaum of counsel), for appellant.
    I. Where the tax administrator relies on specific provisions of a lease which indicate that certain expenditures are made as rent, parol evidence may not be introduced to alter the intent shown by that lease. (Fogelson v Rackfay Constr. Co., 300 NY 334; Randall-Smith, Inc. v 43rd St. Estates Corp., 17 NY2d 99; Lebowitz v Mingus, 100 AD2d 816, 63 NY2d 675; Oxford Commercial Corp. v Landau, 12 NY2d 362; Commissioner of Internal Revenue v Dwight’s Estate, 205 F2d 298, 346 US 871; County Trust Co. v Mara, 242 App Div 206, 266 NY 540; Dulander, Inc. v City of New York, 97 AD2d 985; Matter of Prudential-Bache Sec. v Department of Fin., 99 AD2d 930; Leroy Adventures v Michael, 106 AD2d 922; Matter of Joseph Davis, Inc. v Tully, 76 AD2d 946, 51 NY2d 704.) II. Tenant expenditures for capital improvements are taxable as rent because they possess the attributes of rent and do not fall within the exclusionary language of the Tax Law. (Matter of Flah’s of Syracuse v Tully, 89 AD2d 729; River View Assocs. v Sheraton Corp., 33 AD2d 187; Matter of Petrakakis v Crown Hotels, 3 AD2d 635; Russell Co. v United States, 261 US 514; Matter of Mobil Oil Corp. v Finance Adm’r of City of N. Y. 58 NY2d 95; Wakefield v Fargo, 90 NY 213; Popkin v Security Mut. Ins. Co., 48 AD2d 46; Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464; Ostrer v Schenck, 41 NY2d 782; Matter of Howard v Wyman, 28 NY2d 434.)

      Stephen R. Sugrue and Stephen S. Ziegler for respondent.
    I. The relevant statute must be construed strongly against the department. (American Locker Co. v City of New York, 308 NY 264; Gould v Gould, 245 US 151; Matter of American Sav. Bank v Michael, 101 AD2d 40, 64 NY2d 397; Matter of Good Humor Corp. v McGoldrick, 289 NY 452.) II. An unambiguous statute must be applied according to its plain meaning. (Matter of Young v Gerosa, 11 AD2d 67; Matter of Penney Co. v Lewisohn, 40 AD2d 67, 33 NY2d 528.) III. The department’s own prior interpretations of the subject statute, by letter ruling or otherwise, are irrelevant for purposes of interpreting the statute. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; McGoldrick v Family Fin. Corp., 287 NY 535; Matter of Willcox v Stern, 18 NY2d 195; Matter of Panzer v Berman, 53 Misc 2d 122; Matter of Blue Spruce Farms v New York State Tax Commn., 99 AD2d 867, 64 NY2d 682.) IV. There is no judicial or administrative precedent supporting the department’s position. (Matter of Linsley v Gallman, 38 AD2d 367, 33 NY2d 863; Matter of Mobil Oil Corp. v Finance Adm’r of City of N. Y., 58 NY2d 95; Matter of Ally & Gargano v Biderman, 126 AD2d 354.) V. The court below correctly held that the department cannot assert the parol evidence rule. (Coleman v First Natl. Bank, 53 NY 388; Folinsbee v Sawyer, 157 NY 196; Metz v Lane Chair Rental, 16 Misc 2d 735, 11 AD2d 741; Bush Homes v Franklin Natl. Bank, 24 AD2d 1012; Vinciguerra v State of New York, 38 AD2d 607; Matter of Debenhams, Inc. v Commissioner of Fin., N. Y. City, 117 AD2d 344; Commissioner of Internal Revenue v Dwight’s Estate, 205 F2d 298, 346 US 871.) VI. The department’s own audit summary establishes that there were no expenditures for improvements during the year that they were "required”. VII. In no event should respondent be required to pay more than the present value of the $1 million of improvements to be received by the landlord upon the expiration of the lease in 1997. (Blatt Co. v United States, 305 US 267; Helvering v Bruun, 309 US 461; Gowern’s Estate v Commissioner of Internal Revenue, 119 F2d 83.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a corporation engaged in the operation of a Spanish language television network, leased commercial office space in Manhattan in September 1981. The lSYz-year lease was the product of extensive negotiations on petitioner’s rights and obligations in renovating the premises. The lease incorporates petitioner’s agreement to spend approximately $1,000,000 to improve the premises in a provision which reads as follows: "This Lease is made with the understanding and agreement that Tenant will spend approximately $1,000,000 to improve, furnish, equip and/or alter the premises being let hereunder in accordance with plans and specifications to be approved by Landlord, as required under the within lease. It is a substantial consideration of the Landlord in renting the space to Tenant at the rental referred to herein that Tenant expend such minimum sum, and failure to so improve the premises shall be deemed a substantial default on the part of Tenant.”

Pursuant to this provision, petitioner expended $1,446,166 in major capital improvements during the tax years June 1, 1980 through May 31, 1983. In January 1984, respondent, Department of Finance of the City of New York, assessed a deficiency against petitioner of $98,503, including back taxes and interest, for failure to pay commercial rent tax on the sums thus expended. At a subsequent hearing to reconsider the determination, petitioner argued that any payments made by a tenant pursuant to a lease for capital improvements to the premises it occupies do not constitute "rent” within the meaning of the commercial rent tax law (Administrative Code of City of New York § 11-701 [6]). Under that local statute, rent is defined as: "The consideration paid or required to be paid by a tenant for the use or occupancy of premises, valued in money, whether received in money or otherwise, including all credits and property or services of any kind and including any payment required to be made by a tenant on behalf of his or her landlord for real estate taxes, water rents or charges, sewer rents or any other expenses (including insurance) normally payable by a landlord who owns the realty other than expenses for the improvement, repair or maintenance of the tenant's premises” (emphasis added) (Administrative Code § 11-701 [6], formerly § L46-1.0 [6]).

Respondent, relying on a prior department interpretation of "improvement” expenses, contended that the statutory exclusion refers only to "voluntary expenditures” for "minor, nonstructural improvements” which are not intended to "save the landlord the expense of doing the work itself’ (Department of Finance, opn letter, June 7, 1984, 4 NY Tax Rep [CCH] ]j 400-155). The Hearing Officer, adopting respondent’s interpretation of "improvement” expenses, upheld the deficiency assessment. Finding that petitioner’s commitment to make improvements was "part of the bargained-for consideration” in the lease and that the improvements entailed reconstruction and major rehabilitation of the building for the primary benefit of the landlord, the Hearing Officer concluded that petitioner’s expenditures did not fall within the statutory exclusion. A final determination adopting the Hearing Officer’s findings and conclusions was issued by respondent’s Commissioner. Thereafter, petitioner commenced this article 78 proceeding.

Upon transfer of the proceeding to the Appellate Division, that court annulled respondent’s determination, partially on the ground that the "clear language of the statute” (126 AD2d, at 344) contravenes respondent’s narrow reading of the statutory exclusion. We agree. As the Appellate Division aptly explained, where the language used in a taxing statute is neither special nor technical, but consists of common words of clear import, there is little reason to defer to a contrary interpretation given by the administrative agency. In such cases, the clear meaning of a statutory provision cannot be altered by invocation of special administrative competence or expertise (see, Matter of Alamo Assocs. v Commissioner of Fin. of City of N. Y., 71 NY2d 340, 346; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; American Locker Co. v City of New York, 308 NY 264, 269; McKinney’s Cons Laws of NY, Book 1, Statutes § 232).

Here, the statutory language is unambiguous and nontechnical. Whatever else "rent” may include as defined in the local law, it clearly excludes, without express or implied qualification, "expenses for the improvement, repair or maintenance of the tenant’s premises” (emphasis added). Contrary to respondent’s contention, this plain language admits no distinction between minor and major improvements, between those primarily made for the benefit of the landlord and those for the tenant, or between those bargained for as consideration under the lease and those initiated at will by the tenant. The term "improvement” commonly refers to a valuable addition or amelioration of real estate, "amounting to more than mere repairs or replacement * * * and intended to enhance its value, beauty or utility”, including "any permanent structure or other development” or "expenditure to extend the useful life of an asset[, which is] capitalized as part of the asset’s costs” (Black’s Law Dictionary 682 [5th ed] [emphasis added]). This term, without condition or modification in the statute, should be given its ordinary meaning and significance, not the quite different meaning — indeed, the virtually opposite meaning-urged by respondent on the basis of a prior administrative ruling (see, McGoldrick v Family Fin. Corp., 287 NY 535, 539; Matter of Penney Co. v Lewisohn, 40 AD2d 67, 69, affd 33 NY2d 528). Accordingly, the statutory exclusion for "improvement” expenses was properly read by the Appellate Division to include all the expenditures made by petitioner during the tax years in question, whether or not a part of its bargain with the landlord, for the alterations and renovations of the leased premises. Consequently, the determination for tax deficiency was properly nullified.

Our decision in Matter of Mobil Oil Corp. v Finance Adm’r of City of N. Y. (58 NY2d 95) does not support a contrary result. In that case, we held that "maintenance” expenses under the same statutory provision did not extend to sums paid by the tenant for cleaning and janitorial services. We explained that the term "maintenance” did not include work necessary to keep the premises clean, but "only work done to prevent and cure depreciation — i.e., such things as painting, replacing window sashes, etc.” (id., at 100). Only "in the broadest sense” of the term might "maintenance” be thought to embrace mere cleaning (id., at 99). Hence, we upheld the Finance Director’s more conventional, albeit narrower, interpretation (see, Black’s Law Dictionary 859 [5th ed]).

Here, by contrast, the renovation undertaken by petitioner clearly falls within the general sense of the term "improvement”. The interpretation urged by respondent — which would exclude the capital alterations and additions made by petitioner — is not merely a narrow reading of the term; it is a peculiarly cramped one. It denudes the term "improvement” of that which is an integral part of its ordinary meaning — i.e., the substantial enhancement of property value or utility. The statutory provision in question contains no words of limitation or modification justifying such a construction, and there is nothing in the statute to suggest that the term "improvement” should not be given its full significance (see, Price v Price, 69 NY2d 8, 15-16; People v Shakun, 251 NY 107, 114; McKinney’s Statutes §§ 114, 232). Moreover, to accept respondent’s contention — that "improvement” is limited to minor nonstructural work which does not significantly enhance the value of the property — would render that term superfluous and redundant in the statute; "improvement” would then add nothing to the words "repair” and "maintenance”. Such a construction, which would deprive the term of its own separate meaning, should be avoided for that reason as well (see, Feinstein v Bergner, 48 NY2d 234, 239; New York State Bridge Auth. v Moore, 299 NY 410, 416; McKinney’s Statutes § 231).

Finally, inasmuch as we ground our decision on the plain meaning of the statutory language, we have no need to address the propriety of the Hearing Officer’s refusal to consider parol evidence of the meaning and purpose of the "mandatory improvement” provision in the lease.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a concur in Per Curiam opinion.

Judgment affirmed, with costs.


author: Chief Judge Wachtler.

text:
    In the Matter of State Division of Human Rights, on Complaint of Arlene S. Cottongim, Respondent, v County of Onondaga Sheriff’s Department, Appellant.
    Argued March 15,1988;
    decided April 26, 1988

      POINTS OF COUNSEL

      Robert J. Rossi, County Attorney (Christopher M. Mack of counsel), for appellant.
    I. The decision and order of the Commissioner of Human Rights is not supported by substantial evidence on the record as a whole. (State Div. of Human Rights v Columbia Univ., 39 NY2d 612; Long Is. R. R. Co. v New York State Div. of Human Rights, 50 AD2d 900; State Div. of Human Rights v Xerox Corp., 49 AD2d 21; Long Is. R. R. Co. v State Div. of Human Rights, 42 AD2d 857; Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300; Matter of State Div. of Human Rights [Greene] v St. Elizabeth’s Hosp., 66 NY2d 684; State Div. of Human Rights v Henderson, 49 AD2d 1026; State Div. of Human Rights v General Motors Corp., 78 AD2d 1006, affd sub nom. Matter of General Motors Corp. v State Human Rights Appeal Bd., 54 NY2d 905.) II. Respondent failed to establish a pervasive pattern of sex, race, or color discrimination. (Matter of New York City Bd. of Educ. v Fletcher, 54 NY2d 379; Matter of New York Tel. Co. v Wethers, 30 NY2d 791; Matter of State Div. of Human Rights v Bystricky, 30 NY2d 322; Matter of Nescott v State Div. of Human Rights, 27 NY2d 787; Matter of Sperry Rand Corp. v State Human Rights Appeal Bd., 46 AD2d 678; Matter of Nuzzo & Sons v State Div. of Human Rights, 45 AD2d 921; Matter of Jwayyed v New York Tel. Co., 42 AD2d 663; State Div. of Human Rights v Service Sys. Corp., 40 AD2d 1075; Matter of State Div. of Human Rights v Decker, 40 AD2d 548; Matter of Antarenni Indus. v State Human Rights Appeal Bd., 38 AD2d 948.) III. The order of the Commissioner is in excess of his authority under the Executive Law. (State Div. of Human Rights v Village of Spencerport, 78 AD2d 50; Gonzalez v State Div. of Human Rights, 74 AD2d 596; Matter of Flaherty v Milliken, 193 NY 564; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; State Div. of Human Rights v Human Rights Commn., 79 AD2d 181.) IV. Respondent failed to prove any damages. (Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492.) V. The Sheriffs actions with respect to respondent were based upon her status as a Flaherty employee and her work record and not upon sex or race.

      Caroline J. Downey and Margarita Rosa for respondent.
    I. The Commissioner of Human Rights renders the final order after a public hearing, and he may properly reach a different result from that proposed by a Hearing Officer. (Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Kelly v Murphy, 20 NY2d 205; Matter of Danzo Estate v New York State Liq. Auth., 27 NY2d 469; Matter of Fahey v Public Health Council, 89 AD2d 702; Matter of Holland v Edwards, 307 NY 38.) II. The Commissioner’s determination that the Sheriff’s Department discriminated against complainant is supported by substantial evidence. (Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Holland v Edwards, 307 NY 38; McDonnell Douglas Corp. v Green, 411 US 792; Matter of Pace Coll, v Commission on Human Rights, 38 NY2d 28; Rohde v K. O. Steel Castings, 649 F2d 317; Powell v Syracuse Univ., 580 F2d 1150.) III. The Commissioner’s order requiring reinstatement and payment of compensatory damages is appropriate and should be confirmed. (Board of Educ. v State Div. of Human Rights, 42 AD2d 49, 35 NY2d 673; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of New York State Dept. of Correctional Servs. v McCall, 109 AD2d 953; Matter of Town of Guilderland v New York State Human Rights Appeal Bd., 93 AD2d 908; Town of Babylon v New York State Human Rights Appeal Bd., 65 AD2d 570; Albemarle Paper Co. v Moody, 422 US 403; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Batavia Lodge v New York State Div. of Human Rights, 35 NY2d 143; Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492; 121-129 Broadway Realty v New York State Div. of Human Rights, 49 AD2d 422.)

      Jules L. Smith and Donald D. Oliver for Arlene S. Cottongim, complainant.
    I. The Commissioner’s determination that complainant Cottongim was discriminatorily discharged because of her sex and race is supported by substantial evidence in the record. (Rohde v K. O. Steel Castings, 649 F2d 317; McDonnell Douglas Corp. v Green, 411 US 792; Fisher v Flynn, 598 F2d 663; Whiteside v Gill, 580 F2d 134; Texas Dept. of Community Affairs v Burdine, 450 US 248; Equal Employment Opportunity Commn. v Brown & Root, 688 F2d 338; U.S. Equal Employment Opportunity Commn. v Minneapolis Elec.

      Steel Casting Co., 552 F Supp 957; Tinker v Des Moines School Dist., 393 US 508; Battle v Mulholland, 439 F2d 321.) II. The Sheriff’s Department’s attack upon the Commissioner’s findings of fact is wholly without merit. (Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300.) III. The Sheriff’s Department’s purported "summaries of disciplinary dispositions” are without probative value and irrelevant to the disparate treatment of complainant. (U.S. Equal Employment Opportunity Commn. v Minneapolis Elec. Steel Casting Co., 552 F Supp 957.) IV. The Commissioner acted within his authority in ordering the Sheriff and Sheriff’s Department to offer complainant reinstatement to employment. (Matter of Maloff v City Commn. on Human Rights, 46 NY2d 902; New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316; Matter of New York Dept. of Correctional Servs. v McCall, 109 AD2d 953; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; State Div. of Human Rights v Human Rights Commn., 79 AD2d 181.) V. The Commissioner’s rejection of the Hearing Officer’s recommendations is not subject to review by this court. (Maloney v Hearst Hotels Corp., 274 NY 106; Matter of Elite Dairy Prods. v Ten Eyck, 271 NY 488; Matter of Stork Rest, v Boland, 282 NY 256.)

      Robert Abrams, Attorney-General (O. Peter Sherwood, Lawrence S. Kahn, Suzanne M. Lynn and Sanford M. Cohen of counsel), for the State of New York, amicus curiae.

    An employer should be strictly liable under the Human Rights Law for the discriminatory acts of its employee taken within or enabled by the employee’s apparent authority. (Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300; Hudson Tr. Lines v State Human Rights Appeal Bd., 47 NY2d 971; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Batavia Lodge v New York State Div. of Human Rights, 35 NY2d 143; Loughry v Lincoln First Bank, 67 NY2d 369; Connell v Hayden, 83 AD2d 30; Matter of Maine Maid v State Liq. Auth., 18 AD2d 919; Calcote v Texas Educ. Found., 578 F2d 95; Flowers v Crouch-Walker Corp., 552 F2d 1277; Young v Southwestern Sav. & Loan Assn., 509 F2d 140.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The Commissioner of the State Division of Human Rights found that petitioner, the County of Onondaga Sheriff’s Department, discriminated against complainant Arlene S. Cottongim on the basis of race and sex, when it compelled her to resign her position as Deputy Sheriff. The two central questions are whether the Commissioner’s determination is supported by substantial evidence in the record, and whether the Commissioner acted within his discretion in ordering that complainant be offered reinstatement to her Deputy Sheriff position. The Appellate Division answered these two questions in favor of the Commissioner. We now affirm.

Complainant, a white female, was employed by the Onondaga County Sheriff’s Department as a juvenile transport officer from 1974 through April 1979. Her duties consisted of transporting juveniles between Family Court and various institutions located throughout New York State and guarding juveniles during court proceedings. Complainant was not a civil service appointee, but instead was a "Flaherty employee,” the term deriving from the case of Matter of Flaherty v Milliken (193 NY 564). Under that case Sheriff’s employees performing civil functions, as opposed to performing criminal duties, are considered to be in the personal employ of the Sheriff, and are not subject to or protected by the Civil Service Law. The parties agree, therefore, that as a result of complainant’s status as a Flaherty employee she was an "at will” employee of the Sheriff, and not protected from discharge under the Civil Service Law.

Complainant’s claim arose from the reaction of the Sheriff’s Department to her association with Deputy John Stevens, a black male deputy also assigned to the juvenile transport division. Stevens was a friend of complainant’s, and performed the same employment duties as complainant, although he was a civil service employee and not a Flaherty employee.

On the morning of April 26, 1979, complainant was at home with a valid illness, when, at approximately 9:30 a.m., Deputy Stevens appeared uninvited at her door. Stevens explained to complainant that although he had called in sick, he was not really sick. He then said that he did not feel well, and complainant allowed him to lie down in the bedroom, while she returned to a separate room. Later that day a Sheriff’s Department Internal Affairs Officer came to complainant’s home and discovered that Stevens was there. Soon after, the Personnel Commander of the Sheriff’s Department called complainant and told her that she was fired. Complainant then asked to talk to the Sheriff directly and was told to come to the Sheriff’s office the next day.

A meeting was held the next day and was attended by complainant, Sheriff John C. Dillon, and various senior officers in the Sheriff’s Department. At this meeting Sheriff Dillon informed complainant that "he would not tolerate such goings on,” and, after briefly reviewing the incident involving Deputy Stevens and complainant’s general work record, told complainant that she had the choice of resigning or being fired. She resigned that day.

Approximately two weeks later Deputy Stevens was charged with two separate instances of misconduct by the Sheriff’s Department. First, Stevens was charged with abuse of sick leave for falsely calling in sick on April 26, 1979, when in fact he was not sick. Second, Stevens was charged with physical assault and verbal abuse of a juvenile prisoner in his custody on April 24, 1979. The penalty sought to be imposed by the Sheriff’s Department for both incidents was a total of three days suspension without pay. When Stevens waived his right to a section 75 Civil Service Law hearing, the penalty imposed was reduced to a two-day suspension without pay.

It was then that complainant filed her complaint with the State Division of Human Rights, alleging that the Sheriff’s Department unlawfully discriminated against her on the basis of race and sex. A hearing was held pursuant to Executive Law § 297 before an Administrative Law Judge appointed by the Commissioner. In the administrative proceedings the Sheriff’s Department originally took the position that complainant was terminated for abusing sick time; at the hearing, however, it was agreed that she had in fact been validly on sick leave. Nevertheless, the Sheriff’s Department then maintained that, in any event, complainant was properly dismissed for failing to report Deputy Stevens’ abuse of sick time, for violating a Sheriff’s rule against conduct "which would tend to bring discredit upon the department,” and for generally having an unsatisfactory work record.

The hearing testimony revealed, however, that no written or oral rule requiring a coemployee to report a rule violation of another employee then existed, or had ever been applied by the Sheriff’s Department, except allegedly in complainant’s case. In addition, it appeared that although complainant’s tenure at the Sheriff’s Department was not without some incident, no disciplinary action had at any time been taken against complainant prior to her forced resignation on April 27, 1979. It was also established that Deputy Stevens had never been charged with having acted so as to tend to bring discredit upon the Sheriffs Department, nor had he in fact been charged with any rule violation or act of misconduct directly attributable to his presence at complainant’s home on April 26, 1979.

On this record the Commissioner held that complainant had been discriminated against on the basis of sex and race, and ordered that the Sheriffs Department pay complainant compensatory damages for lost wages and benefits, offer her reappointment to her Deputy Sheriffs position, and pay her $30,000 for the mental anguish she suffered. The Appellate Division modified the Commissioner’s decision by reducing the award for mental anguish to $15,000, and, as modified, confirmed the determination. On this appeal complainant does not challenge the reduction of the award by the Appellate Division.

I

Complainant, as a "Flaherty” or "at will” employee, could lawfully have been discharged for any reason or for no reason, but not for a statutorily impermissible reason (see, e.g., Sabetay v Sterling Drug, 69 NY2d 329, 337; Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72, 74). Executive Law § 296 (1) (a), which is part of the New York Human Rights Law and which applies to public employers, bars discrimination in employment on the basis of sex or race (see, e.g., Matter of City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 430). Thus complainant, although an employee at will, could not lawfully be discharged from her employment on these bases.

It is the Commissioner of the Division of Human Rights who is primarily responsible for administering the Human Rights Law, and, upon judicial review, his decisions are properly accorded substantial deference when he acts within his area of expertness (see, Matter of Board of Educ. v State Div. of Human Rights, 56 NY2d 257, 261; Imperial Diner v State Human Rights Appeal Bd., supra, at 78). In reviewing the Commissioner’s determinations, we have long recognized that identifying discriminatory acts indeed requires expertness, because those intent upon unlawful discrimination "cannot be expected to declare or announce” their purpose, but often pursue their ends "in ways that are devious, [and] by methods subtle and elusive” (see, Matter of Holland v Edwards, 307 NY 38, 45). Thus it has become axiomatic that this court, in reviewing the Commissioner’s findings on the presence of unlawful discrimination, "may not weigh the evidence or reject [the Commissioner’s] choice where the evidence is conflicting and room for a choice exists”, and that the judicial function is concluded when it is determined that the Commissioner’s determination is supported by substantial evidence on the record (Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69, 75; Matter of Holland v Edwards, supra). Even where conflicting inferences may be rationally drawn from the record, those inferences are for the Commissioner, and not for this court, to draw.

The record amply supports the Commissioner’s conclusion that complainant was discriminated against on the basis of sex and race. First, the record sufficiently supports the conclusion that complainant made out a prima facie case of discrimination by showing that she, as a white woman, was disciplined differently from her black male coemployee, Deputy Stevens (see, Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28, 39). The Sheriff’s Department argues, however, that the difference in treatment raises no inference of discrimination in this case because complainant was an "at will” employee, while Deputy Stevens was protected by the Civil Service Law. Notwithstanding this difference in employment status, however, the Commissioner could rationally find that the differential treatment of complainant and Deputy Stevens raised an inference of discrimination.

True, Deputy Stevens was protected by the Civil Service Law and complainant was not. Nevertheless, complainant and Deputy Stevens performed the same duties at the Sheriff’s Department and were involved in the same incident that gave rise to both being disciplined; Deputy Stevens, however, was never even charged with the offenses — acts tending to discredit the Sheriff’s Department, and failure to report a coemployee’s rules violation — which the Sheriff’s Department maintained were the cause of complainant’s discharge from employment. In fact, for the whole incident Deputy Stevens was charged only with falsely calling in sick, but was not charged with any violation due to his presence at complainant’s home. Thus while a difference in employment status could superficially explain the differing severity of the penalties imposed, it in no way explains why Deputy Stevens’ presence at complainant’s home caused her termination from employment, but gave rise to no allegations of misconduct against Stevens.

Second, in the face of this showing of disparate treatment, the burden then shifted to the Sheriffs Department to show that "the employee was terminated for some independently legitimate reason which was neither a pretext for discrimination nor was substantially influenced by impermissible discrimination” (Matter of Pace Coll. v Commission on Human Rights, supra, at 40). We conclude that the record adequately supports the Commissioner’s conclusion that a sufficient neutral justification for complainant’s termination was not shown.

The Sheriffs Department’s initial explanation for complainant’s discharge was that she abused sick time. When this charge subsequently appeared baseless, other explanations ensued, such as: the failure to report Stevens’ rule violation; the acts tending to discredit the Sheriffs Department charge; and finally, the bare assertion that complainant was an employee at will and could be dismissed for any reason.

The Commissioner could reasonably have found these three explanations to be either pretextual or affected by discrimination. Initially, shifting responses alone, especially where the first proffered explanation proves baseless, may give rise to an inference that the later justifications are pretextual.

Turning specifically to the explanations offered by the Sheriffs Department, the first justification of complainant’s failure to report a coemployee’s rules violation was never shown to be a Sheriffs Department rule, and was never shown to have been applied to anyone except complainant in this one instance. The next justification, that complainant’s act tended to discredit the Sheriffs Department, seen in its best light, could have been found to be pretextual because only complainant and not Stevens was ever charged with it — or, more harshly, and as found by the Commissioner, it could be seen as a blatantly improper assertion that a white woman’s relationship with a black man tends to bring discredit upon her employer.

Finally, the belated employee "at will” justification for complainant’s discharge was wholly belied by the record, from which it is clear that complainant’s dismissal was the direct result of the incident involving Deputy Stevens. Consequently, the record in this case sufficiently supports the Commissioner’s finding of discrimination against complainant; he properly found a prima facie case of discrimination, and that the Sheriff’s Department’s purported neutral justifications for the action taken were pretextual.

In a separate argument, the Sheriffs Department asserts that, even if discrimination occurred, it is insulated by our decisions in Matter of Totem Taxi v State Human Rights Appeal Bd. (65 NY2d 300), and Matter of State Div. of Human Rights (Greene) v St. Elizabeth’s Hosp. (66 NY2d 684), holding that, under the facts of those cases, the employer was not liable for the employee’s discriminatory act unless the employer became a party to it by encouraging, condoning or approving the act. This argument stems from the appearance in the record of a statement by one employee, not the Sheriff, made on April 26, 1979, that "[complainant] is all done * * * we just caught her with John Stevens,” along with the statement of another Sheriffs Department employee urging complainant to resign before she was fired so as not to bring shame upon her family by disclosure of her relationship with a black man.

This argument has no merit here. Unlike Totem Taxi (supra), and St. Elizabeth’s Hosp. (supra), in the case now before us conduct directly attributable to the employer formed the core of the discriminatory acts. Here it was the employer —the Sheriff — who personally discharged complainant from employment, who personally participated in the disparate treatment of complainant and Deputy Stevens, and who personally offered the justifications for complainant’s termination, rejected as pretextual by the Commissioner. This case, therefore, does not involve vicarious liability; on the contrary, here the employer was held liable under the Human Rights Law for his own discriminatory conduct.

II

Finally, the Sheriffs Department takes issue with the remedy imposed by the Commissioner. It asserts that under Matter of City of Schenectady v State Div. of Human Rights (supra), the Commissioner was without power to order that the Sheriffs Department offer complainant reemployment because this would deprive the Sheriff of his discretion in making appointments. The Commissioner, however, has broad powers to form a remedy for discrimination, with the limitation, of course, that the remedy be reasonably related to the injury to be rectified (e.g., Imperial Diner v State Human Rights Appeal Bd., supra, at 79). In fact, the power to order reinstatement — the remedy invoked here — is specifically granted to the Commissioner in the Human Rights Law (Executive Law § 297 [4] [c]).

City of Schenectady (supra), and the case upon which it is based, Matter of Berger v Walsh (291 NY 220), place no additional limitations on the Commissioner’s power to fashion a remedy for discrimination. These cases hold that where a person has not been considered fairly for an appointment by a public employer, the remedy that generally will make the individual whole, in addition to whatever money damages are warranted, is that the individual be fairly considered for the appointment. These cases recognize that it may be improper to go further and require that the person be appointed to the position because this could award more than a complainant was entitled to before the discrimination took place. On this point, therefore, the authorities cited are nothing more than a restatement that the remedy imposed by the Commissioner must be rationally related to the injury sought to be redressed.

Conversely, when the discrimination resulted in termination, compelling reappointment does not put the employee in a better position than the employee had before the discrimination occurred; it only returns to the employee something that he or she at all times possessed, but was deprived of by discrimination. To hold otherwise, and to preclude the Commissioner from ordering reinstatement, would allow public officials to discriminate with impunity, leaving unlawfully discharged employees no recourse for reinstatement to employment. This result, at odds with both the purpose of the Human Rights Law and the duty of the Commissioner to make whole those victimized by discrimination, cannot be accepted by this court. Thus in the case now before us, we hold that the Commissioner acted within his discretion when he ordered that complainant, who was wrongfully terminated from her position, be offered reinstatement to her position as a Deputy Sheriff.

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

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

Order affirmed, with costs.

       Consequently, although urged by amicus, there is no call in this case for a reexamination of our holdings in Matter of Totem Taxi v State Div. of Human Rights (65 NY2d 300), and Matter of State Div. of Human Rights (Greene) v St. Elizabeth’s Hosp. (66 NY2d 684).


author: Titone, J.

text:
    The People of the State of New York, Appellant-Respondent, v Stewart A. Griminger, Respondent-Appellant.
    Argued March 22, 1988;
    decided April 28, 1988

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (Anthony J. Gírese and Bruce E. Whitney of counsel), for appellant-respondent.
    I. Suppression was properly denied. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; Illinois v Gates, 462 US 213; People v P. J. Video, 65 NY2d 566, 475 US 868, 68 NY2d 296; People v Elwell, 50 NY2d 231; People v Hanlon, 36 NY2d 549; United States v Ventresca, 380 US 102; People v Rodriguez, 52 NY2d 483.) II. The suppression, in a New York court, of evidence obtained by Federal officers pursuant to a valid Federal search warrant does not serve the purposes of the exclusionary rule. (People v De Bour, 40 NY2d 210; People v Morales, 65 NY2d 997; People v Young, 55 NY2d 419, 459 US 848; People v Stith, 69 NY2d 313; Elkins v United States, 364 US 206; People v Oakley, 28 NY2d 309; Sackler v Sackler, 15 NY2d 40; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 396 US 840; People v Ready, 61 NY2d 790; People v Ridgeway, 64 NY2d 952.)

      Edward Gasthalter for respondent-appellant.
    I. The order of the court below suppressing the evidence seized pursuant to the search warrant and reversing the judgments of conviction was proper and should not be disturbed by this court on appeal. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Bigelow, 66 NY2d 417; People v Johnson, 66 NY2d 398; People v P. J. Video, 65 NY2d 566, 475 US 868, 68 NY2d 296; People v McGriff, 130 AD2d 141.) II. The court below erred in affirming the refusal by nisi prius to dismiss the indictment. (People v Argentine, 67 AD2d 180; Matter of Chaipis v State Liq. Auth., 44 NY2d 57; People v Delaney, 80 AD2d 835; United States v Hinton, 543 F2d 1002; United States v Toscanino, 500 F2d 267; Santobello v New York, 404 US 257; People v Isaacson, 44 NY2d 511; People v Clark, 45 NY2d 432.) III. The court below erred in affirming the refusal by nisi prius to suppress Griminger’s oral statements. (People v Hobson, 39 NY2d 479; Miranda v Arizona, 384 US 436; People v Shivers, 21 NY2d 118.)
   OPINION OF THE COURT

Titone, J.

The primary issue presented is whether the AguilarSpinelli two-prong test, or the Gates totality-of-the-circumstances test, should be employed in determining the sufficiency of an affidavit submitted in support of a search warrant application (see, Illinois v Gates, 462 US 213, reh denied 463 US 1237; Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108). We conclude that, as a matter of State law, our courts should apply the Aguilar-Spinelli test.

Special agents of the United States Secret Service arrested a counterfeiting suspect, and, in the course of interrogation, he signed a detailed statement accusing defendant of keeping large quantities of marihuana and cocaine in his bedroom and adjacent attic. Consequently, one of the agents prepared an affidavit for a warrant to search defendant’s home. According to the affidavit, a confidential informant known as source "A” observed substantial quantities of marihuana and quantities of cocaine in defendant’s bedroom and attic on numerous occasions, saw defendant sell drugs on numerous occasions, and, as recently as seven days ago, "A” observed 150 to 200 pounds of marihuana in defendant’s bedroom and adjacent attic. The affidavit further stated that, pursuant to a consent search, approximately four pounds of marihuana were found in a garbage can at defendant’s residence.

Although the agent did not personally know the counterfeiting suspect, his affidavit said that the undisclosed informant was "a person known to your deponent.” The agent also omitted the fact that the informant was under arrest when he provided this information. Based solely upon this affidavit, a Federal Magistrate issued the search warrant. On August 26, 1983, the warrant was executed by 2 Federal agents and 6 or 7 Nassau County policemen. The search produced 10 ounces of marihuana, over $6,000 in cash and drug-related paraphernalia. Additionally, the Federal agents turned over the marihuana discovered during the consent search referred to in the warrant to Nassau County law enforcement officials.

Defendant was charged with two counts of criminal possession of marihuana, as well as with criminal sale of marihuana arising out of an unrelated May 1984 incident. Defendant sought to suppress the evidence obtained as a result of the August 26 search, but County Court denied the motion. Although the court found that the agent’s affidavit failed to satisfy the "reliability” prong of the Aguilar-Spinelli test, it concluded that the Gates test should be applied in assessing the sufficiency of a search warrant. Under that test, the court determined that there was probable cause to issue the warrant.

Defendant then pleaded guilty to all charges with the understanding that he would receive concurrent sentences in return for his pleas. The Appellate Division, however, reversed and remanded for further proceedings, holding that as a matter of State constitutional law, County Court should have applied Aguilar-Spinelli. The Appellate Division, agreeing with County Court that the reliability of the informant was lacking, found that the warrant had, therefore, been improperly issued, and that the fruits of that illegal search must be suppressed.

A Judge of this court granted the People leave to appeal and granted defendant’s motion for leave to cross-appeal. We now affirm.

Prior to Illinois v Gates (462 US 213, reh denied 63 US 1237, supra), Federal courts applied the two-pronged AguilarSpinelli test in probable cause determinations when evaluating hearsay information from an undisclosed informant (see, Aguilar v Texas, 378 US 108, supra; Spinelli v United States, 393 US 410, supra). Under this test, the application for a search warrant must demonstrate to the issuing Magistrate (i) the veracity or reliability of the source of the information, and (ii) the basis of the informant’s knowledge (see generally, Illinois v Gates, supra; People v Johnson, 66 NY2d 398; People v Bigelow, 66 NY2d 417; People v Hanlon, 36 NY2d 549). We adopted this standard as a matter of State constitutional law (see, e.g., People v Johnson, supra; People v Hanlon, supra). In Illinois v Gates (supra), the United States Supreme Court altered its position and adopted the seemingly more relaxed "totality-of-the-circumstances approach” (id., at 230, 238).

In People v Johnson (supra), this court expressly rejected the Gates approach for evaluating warrantless arrests. In People v Bigelow (66 NY2d 417, supra), although the People urged us to adopt the Gates test in the search warrant context, we found it unnecessary to decide the question, since "the People’s evidence [did] not meet minimum standards of probable cause even if Gates was applied” (id., at 425). This appeal squarely presents the issue left undecided in Bigelow. We are not persuaded, however, that the Gates approach provides a sufficient measure of protection, and we now hold that, as a matter of State constitutional law, the Aguilar-Spinelli two-prong test should be applied in determining whether there is a sufficient factual predicate upon which to issue a search warrant.

We reaffirm today that in evaluating hearsay information the Magistrate must find some minimum, reasonable showing that the informant was reliable and had a basis of knowledge (People v Johnson, supra; People v Landy, 59 NY2d 369; People v Rodriguez, 52 NY2d 483; People v Hanlon, supra). Our courts should not "blithely accept as true the accusations of an informant unless some good reason for doing so has been established” (People v Rodriguez, supra, at 489). The AguilarSpinelli two-pronged inquiry has proven a satisfactory method of providing reasonable assurance that probable cause determinations are based on information derived from a credible source with firsthand information, and we are not convinced that the Gates test offers a satisfactory alternative.

The reasons advanced by the People in support of the Gates test are similar to those enunciated by the Supreme Court itself in Illinois v Gates (supra, at 235-238; see also, People v Johnson, supra, at 406). They contend that the less stringent Gates test will encourage the use of warrants, a highly desirable goal. They assert that the Aguilar-Spinelli test has been applied in a rigid, inflexible manner to the detriment of law enforcement. The commonsense approach of Gates, posit the People, is a more reasonable rule of law, since the hypertechnical two-prong test places an unnecessary burden on law enforcement officers who are not lawyers, but rather public officials "acting under stress and often within the context of a volatile situation” (People v Hanlon, 36 NY2d 549, 559, supra).

Although we agree with the People that the use of warrants should be encouraged (see, People v Hanlon, supra, at 558), there is no reason to believe that police will refrain from obtaining a warrant merely because this State continues to apply the Aguilar-Spinelli test. With limited exceptions, carefully circumscribed by our courts, it is always incumbent upon the police to obtain a warrant before conducting a search. Furthermore, whether there was probable cause will generally be raised by the defendant at a suppression hearing. If a Magistrate has already determined that probable cause existed, great deference will be accorded that finding, resulting in far fewer suppression problems. This, in turn, results in a more efficient use of police resources; it is indeed wasteful to make an arrest or conduct a search without a warrant only to have those efforts invalidated by a suppression court.

Nor is the Aguilar-Spinelli test a hypertechnical approach to evaluating hearsay information. As we stated in People v Hanlon (supra, at 559), "in the real world, we are confronted with search warrant applications which are generally not composed by lawyers in the quiet of a law library but rather by law enforcement officers who are acting under stress and often within the context of a volatile situation. Consequently such search warrant applications should not be read in a hypertechnical manner as if they were entries in an essay contest. On the contrary, they must be considered in the clear light of everyday experience and accorded all reasonable inferences” (see also, People v Bigelow, supra).

In People v Johnson (supra), we recognized that the more structured "bright line” Aguilar-Spinelli test better served the highly desirable "aims of predictability and precision in judicial review of search and seizure cases”, and that "the protection of the individual rights of our citizens are best promoted by applying State constitutional standards.” (66 NY2d, at 407, supra.) We find this reasoning equally persuasive in cases involving search warrants. Given the deference paid to the Magistrate’s probable cause finding, and given the somewhat subjective nature of the probable cause inquiry, the aims of predictability and precision are again well served by providing the Magistrate with Aguilar-Spinelli’s concrete, structured guidelines. More importantly, this will also prevent the disturbance of the rights of privacy and liberty upon the word of an unreliable hearsay informant, a danger we perceive under the Gates totality-of-the-circumstances test.

The unreliability of the hearsay informant was established by County Court and affirmed by the Appellate Division. We have no basis upon which to review or disturb that finding. The reliability prong of Aguilar-Spinelli having not been satisfied, we therefore affirm the Appellate Division order finding the warrant invalid and suppressing the fruits of the search.

The People alternatively assert that Federal law should apply in this case, since the warrant was issued by a Federal Magistrate and executed by Federal agents. We disagree. Since defendant has been tried for crimes defined by the State’s Penal Law, we can discern no reason why he should not also be afforded the benefit of our State’s search and seizure protections (cf., Elkins v United States, 364 US 206; Lustig v United States, 338 US 74; People v Ridgeway, 64 NY2d 952).

Finally, on his cross appeal, defendant asks us to review the denial of portions of his pretrial motion. We agree with the People, however, that the defendant’s cross appeal should be dismissed. The Appellate Division’s order of reversal was not "adverse” to the defendant within the meaning of CPL 450.90 (1), which provides that "[a]n order of an intermediate appellate court is adverse to the party who was the appellant in such court when it affirms the judgement, sentence or order appealed from”. Since defendant’s judgments of conviction were reversed by the Appellate Division, "its order is not appealable by defendant, who was the appellant in that court, notwithstanding that defendant was 'aggrieved’ insofar as his requests] for” suppression of other evidence, and dismissal of the first count of the indictment were denied (People v Rolston, 50 NY2d 1048, 1050; see also, People v Fediuk, 66 NY2d 881, 884). Nor do we find it necessary to consider defendant’s other arguments in support of an affirmance under CPL 470.35 (2) (b).

Accordingly, the order of the Appellate Division should be affirmed and the defendant’s cross appeal dismissed.

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

On the People’s appeal order affirmed. Defendant’s cross appeal dismissed.


text:
    Carol L. Glaser et al., Plaintiffs, v M. Fortunoff of Westbury Corp., Defendant and Second Third-Party Plaintiff-Appellant, et al., Third-Party Defendant, and George E. Froehlich, M.D., P. C., et al., Second Third-Party Defendants-Respondents.
    Argued March 17,1988;
    decided April 28, 1988

      POINTS OF COUNSEL

      Nathan Cyperstein and Barbara M. Berk for defendant and second third-party plaintiff-appellant.
    I. A property owner who pays a sum in settlement of all plaintiff’s claims has a right of indemnification for its liability for subsequent malpractice injuries inflicted by successive tort-feasors while independently treating plaintiff for the harm originally sustained on the owner’s premises. (Suria v Shiffman, 67 NY2d 87; Bichler v Lilly & Co., 55 NY2d 571; Derby v Prewitt, 12 NY2d 100; Sweet v Perkins, 196 NY 482; Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57; Matter of Parchefsky v Kroll Bros., 267 NY 410; Milks v Mclver, 264 NY 267; Dubicki v Maresco, 64 AD2d 645; Zillman v Meadowbrook Hosp. Co., 45 AD2d 267; Hawkes v Goll, 256 App Div 940, 281 NY 808.) II. The original tort-feasor is entitled to an evidentiary hearing to determine what part of the total settlement is allocable to the culpable conduct of the successive malpractice tortfeasors. (Hill v St. Clare’s Hosp., 67 NY2d 72.)

      Wayne M. Rubin for second third-party defendants-respondents.
    General Obligations Law § 15-108 (c) bars a settling original tort-feasor from maintaining an action against a succeeding malpracticing physician to recover any aggravation damages that the original tort-feasor may have paid as part of its settlement with the injured party. (Musco v Conte, 22 AD2d 121; County of Westchester v Becket Assocs., 102 AD2d 34, 66 NY2d 642; Dole v Dow Chem. Co., 30 NY2d 143; Hill v St. Clare’s Hosp., 67 NY2d 72; D’Ambrosio v City of New York, 55 NY2d 454; Salonia v Samsol Homes, 119 AD2d 394; Rosado v Proctor & Schwartz, 66 NY2d 21; County of Westchester v Becket Assocs., 102 AD2d 34; McDermott v City of New York, 50 NY2d 211; McFall v Compagnie Mar. Belge, 304 NY 314; Riviello v Waldron, 47 NY2d 297.)
   OPINION OF THE COURT

Titone, J.

A tort-feasor’s claim for reimbursement against a successive, independent tort-feasor whose negligence aggravated the injured plaintiffs damages is one in the nature of contribution, not indemnification. Consequently, General Obligations Law § 15-108 (c), which governs the effect of settlement on contribution but not indemnification causes of action, operates to bar the assertion of such claims by a tort-feasor who has settled with the injured plaintiff.

On November 18, 1982, plaintiff Carol Glaser fell and fractured her knee while she was in the Long Island store operated by defendant M. Fortunoff of Westbury Corp. Glaser was initially taken by ambulance to a local medical center, but was subsequently transferred to New Rochelle Hospital Medical Center, where she underwent surgery. Following this surgery, she developed congestive heart failure and suffered brain damage. Glaser and her husband subsequently commenced an action against Fortunoff alone, claiming damages for all of her injuries, including those that had occurred at the New Rochelle Hospital Medical Center. Fortunoff, in turn, served a third-party complaint on Salvatore Orsini and Drs. George Froehlich and Jaime Javier, each of whom had treated Glaser at New Rochelle. This third-party complaint demanded that the third-party defendants "indemnify [Fortunoff] in whole or in part” for any damages it was obliged to pay Glaser.

Fortunoff ultimately settled with Glaser and obtained a release in the main action. Thereafter, Orsini, Froehlich and Javier moved to dismiss Fortunoffs third-party complaint against them, arguing that the action was barred under General Obligations Law § 15-108 (c). Special Term agreed with the third-party defendants’ position and dismissed Fortunoffs complaint against them. The Appellate Division affirmed, stating that under the statute the third-party action, "which pleads a cause of action sounding in contribution, rather than indemnification, is barred.” Having granted Fortunoff permission to appeal to this court, we now affirm.

Section 15-108 (c) of the General Obligations Law provides: "A tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person.” Enacted in 1974 in conjunction with the enactment of CPLR article 14 (L 1974, ch 742) which codified Dole v Dow Chem. Co. (30 NY2d 143; see, Mitchell v New York Hosp., 61 NY2d 208), General Obligations Law § 15-108 applies to claims for contribution but not to those seeking to vindicate a party’s pre-Dole common-law right of indemnification (Rosado v Proctor & Schwartz, 66 NY2d 21, 24-25; McDermott v City of New York, 50 NY2d 211; see, CPLR 1404 [b]; see also, Riviello v Waldron, 47 NY2d 297; Rogers v Dorchester Assocs., 32 NY2d 553, 566; see, 20th Ann Report of NY Jud Conf, at 222-223). Accordingly, FortunofPs right to recover from the third-party defendants after having settled its own liability dispute with the injured plaintiff depends upon whether its claim is more accurately characterized as one for common-law indemnification or one for contribution (see, e.g., Rosado v Proctor & Schwartz, supra).

Although the distinction is often critical, the proper characterization of third-party claims has often caused confusion (see, Rogers v Dorchester Assocs., supra, at 565, n 2; see generally, McLaughlin, 1979 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C1402:2, at 124 [1988 Cum Ann Pocket Part]). The parties’ designation of the claim is not, of course, controlling (Rosado v Proctor & Schwartz, supra, at 25; County of Westchester v Becket Assocs., 102 AD2d 34, 47, affd 66 NY2d 642). Rather, "[w]hether apportionment or common-law indemnity should be applied in a given case * * * requires a careful analysis of the theory of recovery against each tort-feasor” (Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568).

The conceptual distinction between contribution and common-law indemnification claims has often been discussed and is by now familiar to most practitioners. In the "classic indemnification case,” the one seeking indemnity "had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party” (D’Ambrosio v City of New York, 55 NY2d 454, 461). In other words, "where one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent” (id, at 462; see, Guzman v Haven Plaza Hous. Dev. Fund Co., supra; Rogers v Dorchester Assocs., supra, at 565, n 2). Conversely, where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors :is the only available remedy (see, Rosado v Proctor & Schwartz, supra, at 24-25; County of Westchester v Becket Assocs., 102 AD2d 34, 46, affd 66 NY2d 642, supra). Accordingly, where a party who has settled seeks to avoid the bar to reimbursement posed by General Obligations Law § 15-108 (c), that party must show that "it may not be held responsible in any degree” for the plaintiff’s damages (Rosado v Proctor & Schwartz, supra, at 25).

Applying these basic principles to the question presented here, we hold that FortunofFs claim against the third-party defendants can only be viewed as one in the nature of contribution and is therefore barred under the statute. As the initial tort-feasor, Fortunoff was liable not only for any knee injuries Glaser may have sustained because of her fall, but also for any aggravation of her injuries resulting from subsequent negligent treatment of her knee. FortunofFs liability is predicated, therefore, at least in part on its own negligence, as well as the foreseeable consequences of that negligence, which includes the alleged malpractice of the third-party defendants (see, Hill v St. Clare’s Hasp., 67 NY2d 72, 82; Rosado v Proctor & Schwartz, supra, at 24-25; Derby v Prewitt, 12 NY2d 100, 103, 105-106; Milks v Mclver, 264 NY 267, 270). Conversely, the third-party defendants, as successive tort-feasors, were not liable for plaintiff’s original injury to her knee, but only for the aggravation of her condition (Derby v Prewitt, supra, at 106). Consequently, defendant’s settlement with plaintiff was a bar to its third-party action under General Obligations Law § 15-108 (c).

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

Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Chief Judge Wachtler taking no part.

Order affirmed, with costs.

      . Fortunoff also impleaded New Rochelle Medical Center. Its complaint against the hospital is not at issue in this appeal.

      . This is not to say that the parties may not reserve their rights against nonsettling tort-feasors by entering into a proper agreement (see, General Obligations Law § 15-108 [c]; Mitchell v New York Hosp., 61 NY2d 208).