author: Alexander, J.

text:
    Kahal Bnei Emunim and Talmud Torah Bnei Simon Israel, Also Known as Talmud Torah Bnei Simon Israel, Appellant, v Town of Fallsburg et al., Respondents.
    Argued April 25, 1991;
    decided July 1, 1991

      POINTS OF COUNSEL

      Judah Dick and Stephen Oppenheim for appellant.
    I. The property of religious, educational and charitable organizations is exempt from taxation and is beyond the jurisdiction of assessors to assess. (Walz v Tax Commn., 24 NY2d 30, 397 US 664; Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; Capolino Design & Renovation v Assessors of City of Yonkers, 138 Misc 2d 811; Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 41 NY2d 816; Young Men’s Christian Assn. v Rochester Pure Water Dist., 37 NY2d 371; Crusade for Christ v Town of New Lebanon, 50 Misc 2d 774, 36 AD2d 247, 31 NY2d 765; Stabile v Half Hollow Hills Cent. School Dist., 83 AD2d 945; Matter of Glickenhaus Found. v Board of Assessors, 40 AD2d 1059; Matter of Bertholf v Cisco, 72 Misc 2d 901, 45 AD2d 787.) II. Where the legislative intent has been the subject of long-standing judicial construction that exemptions (which are constitutionally mandated) are self-operating and that the assessor lacks taxing jurisdiction as to such parcels, courts should not tamper with such construction without a clear indication by the Legislature that it wished to change this rule. (Matter of Eckard, 39 NY2d 493; Heyert v Orange & Rockland Utils., 17 NY2d 352; People v Hobson, 39 NY2d 479; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Matter of Higby v Mahoney, 48 NY2d 15; City of Buffalo v Cargill, Inc., 44 NY2d 7.) III. The 1978 amendment to RPTL 202 (1) (h) only gave the State Board of Equalization and Assessment the power to create uniform forms; it did not give the Board the power to require the filing of forms where no forms are required to be filed. (Matter of Plattsburgh Coll. v Board of Assessors, 43 Misc 2d 741; Faculty-Student Assn. v City of Albany, 17 Misc 2d 404; Plattsburgh State Teachers Coll. v Barnard, 9 Misc 2d 897; Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; Elmhurst Fire Co. v City of New York, 213 NY 87; Matter of Sisters of Resurrection v Daby, 129 Misc 2d 879; Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328; National Bank v City of Elmira, 53 NY 49; Ogdeon City v Armstrong, 168 US 224.) IV. Where an owner has already had a full exemption the burden of proof is upon defendants to show that plaintiff is not entitled to its exemption. (Matter of New York Botanical Garden v Assessors of Town of Washington, 80 AD2d 170, 55 NY2d 328; People ex rel. Watchtower Bible & Tract Socy. v Haring, 286 App Div 676.) V. Failure to give notice of revocation requires that the exemption be continued. (Religious Educ. Assn. v City of New York, 123 Misc 2d 786; Matter of Sisters of Resurrection v Daby, 129 Misc 2d 879; Matter of Trump v Tishelman, 80 AD2d 858; Mullane v Central Hanover Trust Co., 339 US 306; Mennonite Bd. of Missions v Adams, 462 US 791.) VI. There is no Statute of Limitations on an action to remove a cloud on title or declare alleged tax liens null and void because no jurisdiction existed. (Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 41 NY2d 816; Young Men’s Christian Assn. v Rochester Pure Water Dist., 37 NY2d 371; Crusade for Christ v Town of New Lebanon, 50 Misc 2d 774, 36 AD2d 247, 31 NY2d 765; Stabile v Half Hollow Hills Cent. School Dist., 83 AD2d 945; Matter of St. Luke’s Hosp. v Beame, 47 Misc 2d 71; Matter of Glickenhaus Found, v Board of Assessors, 40 AD2d 1059; Buffalo Hebrew Christian Mission v City of Syracuse, 33 AD2d 152; Matter of Faith Church v Gingold, 54 Misc 2d 296; De Forest v Walters, 153 NY 229; Smith v Reid, 134 NY 568.) The assessor properly found the property to be taxable. (City of Rochester v Chiarella, 58 NY2d 316; Mullane v Central Hanover Trust Co., 339 US 306; Mennonite Bd. of Missions v Adams, 462 US 791; Matter of St. Agnes Church v Daby, 148 AD2d 31; Matter of Faculty-Student Assn. v Town of Lyndon, 137 Misc 2d 1057.) II. The New York State Constitution does not require exemption in this case. III. Settlement of the 1986 litigation between the parties did not require exemption in 1987 or 1988. (Matter of Snowpine Vil. Condominium Bd. of Managers v Town of Great Val., 144 Misc 2d 1049; Matter of Roosevelt Raceway v Monaghan, 9 NY2dc 293.) IV. Lack of notice of a change in assessment was not required to assess taxes against this property. (Laurenson v City of New York, 143 Misc 2d 216; Matter of Feig v Board of Assessors, 69 Misc 2d 322; Matter of Sisters of Resurrection v Daby, 129 Misc 2d 879.) V. Relief for 1987 was barred by the Statute of Limitations. (Smith v Reid, 134 NY 568; De Forest v Walters, 153 NY 229; Schoener v Lissauer, 107 NY 111; Cameron Estates v Deering, 308 NY 24; Press v County of Monroe, 50 NY2d 695; Matter of Andresen v Rice, 277 NY 271; Matter of Faculty-Student Assn. v Town of Lyndon, 137 Misc 2d 1057; Solnick v Whalen, 49 NY2d 224; World Plan Executive Council v Town of Fallsburg, 92 AD2d 1047; Matter of First Natl. City Bank v City of New York Fin. Admin., 36 NY2d 87.) VI. Plaintiff failed to sue the one body that might have provided relief.

      Jill Nagy for Town of Fallsburg and another, respondents.
    I.

      Marc D. Stern, Lois C. Waldman, Marcia Eisenberg and Dennis Rapps for the American Jewish Congress and others, amici curiae.

    As a matter of constitutional law, Kahal Bnei Emunim was entitled to a tax exemption on its summer camp. (Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328.)

      Robert L. Beebe and Stephen J. Harrison for State Board of Equalization and Assessment, amicus curiae.

    I. The constitutional protection for religious, educational and charitable exemptions in no way restricts the duty of the assessor to inquire and to determine eligibility. (Foss v City of Rochester, 65 NY2d 247; Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508; Young Men’s Christian Assn. v Rochester Pure Water Dist., 37 NY2d 371; Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; Stabile v Half Hollow Hills Cent. School Dist., 83 AD2d 945; Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 41 NY2d 816; Capolino Design & Renovation v Assessors of City of Yonkers,
      138 Misc 2d 811; Buffalo Hebrew Christian Mission v City of Syracuse, 33 AD2d 152; Matter of Faculty-Student Assn. v Town of Lyndon, 137 Misc 2d 1057.) II. The State Board’s rule and forms pertaining to the nonprofit organizations (mandatory class) exemption are lawful and reasonable exercises of the State Board’s authority to supervise assessing. (Town of Hardenburgh v State of New York, 52 NY2d 536, 454 US 958; Matter of Dudley v Kerwick, 52 NY2d 542; Matter of State Bd. of Equalization & Assessment v Kerwick, 52 NY2d 557.) III. The burden of proof is on the applicant for exemption. (Buffalo City Cemetery v City of Buffalo, 46 NY 506; Matter of City of Lackawanna v State Bd. of Equalization & Assessment, 16 NY2d 222; Matter of Association of Bar v Lewisohn, 34 NY2d 143; Matter of F. O. R. Holding Co. v Board of Assessors, 45 AD2d 875, 35 NY2d 959; People ex rel. Untermyer v McGregor, 183 Misc 218, 269 App Div 779, 295 NY 237; Matter of Pace Coll. v Boyland, 11 Misc 2d 387, 4 AD2d 855, 4 NY2d 528; Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328; Matter of Swedenborg Found. v Lewisohn, 40 NY2d 87; Matter of Watchtower Bible & Tract Socy. v Lewisohn, 35 NY2d 92.) IV. An assessor’s failure to give notice of a change from exempt to taxable status does not invalidate a tax levied on such taxable assessment. (Matter of Albano v Kirby, 36 NY2d 526; Matter of Sisters of Resurrection v Daby, 129 Misc 2d 879; Mennonite Bd. of Missions v Adams, 462 US 791.)
   OPINION OF THE COURT

Alexander, J.

Kahal Bnei Emunim (Kahal) is a religious corporation which operates a religious and educational institution in Brooklyn, New York. It enjoys Federal income tax exemption under section 501 (c) (3) of the Internal Revenue Code (26 USC) and its Brooklyn property has been exempted from real estate taxes by the City of New York.

In November 1985 it purchased a summer camp in the Town of Fallsburg, Sullivan County, to be used by its students for study and recreation during the summer. It does not appear that this property had previously been exempted from real property taxes or that Kahal took any steps to secure or claim tax-exempt status for the property following its acquisition. Thus the property was assessed as being fully taxable for 1987 State and county taxes and school taxes for 1986/1987 based on its status on March 1, 1986, the taxable status date. Kahal challenged this assessment, asserting its entitlement to a total exemption as a religious corporation. The matter was resolved through a stipulation entered into between Kahal, the Town of Fallsburg and the Fallsburg Assessor on March 13, 1987, which provided that Kahal was "entitled to a real property tax exemption * * * for fiscal years beginning after March 1, 1986, to wit, school taxes, July 1, 1986 and State and County taxes January 1, 1987” and that "[a]ny real property tax assessed for school taxes after July 1, 1986 and State and County taxes after January 1, 1987 shall be cancelled, including the attached bills”. That stipulation was "So ordered” by Supreme Court on May 22, 1987.

Kahal did not apply for tax exemption for either 1987 or 1988. Consequently, "based upon [his] knowledge of the appearance^] of the property on the[ir] tax status date[s] [March 1, 1987 and March 1, 1988]” the Fallsburg Town Assessor placed the property on the tentative tax roll as fully taxable for both years. Kahal did not challenge the 1987 tentative assessment and that assessment listing the property as fully taxable became final on July 1, 1987. The 1988 tentative assessment was protested, however. Kahal filed a grievance with the Board of Assessment Review, but the grievance was dismissed and the property was listed as fully taxable on the final assessment roll for 1988. None of these taxes were paid.

In July 1988, alleging that as a religious corporation it is entitled to exemption from real property taxes pursuant to Real Property Tax Law § 420-a, Kahal commenced this declaratory judgment action against the Town of Fallsburg, the Fallsburg Town Tax Collector and Sullivan County seeking a declaration voiding the tax assessments and liens imposed upon the subject real property pursuant to the 1987 and 1988 assessments, and declaring that property tax exempt so long as it is owned by Kahal and used for its corporate purposes.

The defendants Town of Fallsburg and the Fallsburg Town Tax Collector answered asserting as affirmative defenses the Statute of Limitations in respect to the 1987 assessment, Kahal’s failure to "make timely and complete applications for tax exemption as required by statute and regulations”, and that based upon the information available to him, the assessor made a good-faith determination that the property was not entitled to tax exemption.

Supreme Court denied Kahal’s summary judgment motion and granted summary judgment to the defendants, dismissing the complaint, concluding that the challenge to the 1987 assessment was barred by the Statute of Limitations and that by reason of its failure to make timely application upon forms prescribed by the State Board of Equalization and Assessment, Kahal failed to carry its burden of demonstrating its entitlement to exemption. The court also rejected KahaPs contention that under res judicata principles, the 1986 exemption barred defendants from assessing its property as fully taxable.

The Appellate Division affirmed Supreme Court’s grant of summary judgment to the defendants, but modified that court’s order to declare in favor of the defendants rather than dismissing the complaint. The Appellate Division agreed that the challenge to the 1987 assessment was time barred as not having been brought within four months of the final assessment and relying in part on its prior decision in Matter of St. Agnes Church v Daby (148 AD2d 31) rejected Kahal’s contention that defendants were barred by the stipulation settling the challenge to the 1986 assessment and that its property was automatically exempt pursuant to Real Property Tax Law § 420-a. That court concluded as it had in St. Agnes Church (supra) that applications for such exemptions are required in all cases except where an on-site inspection by the assessor reveals the tax-exempt status of the property and that "the property’s physical appearance on the respective status dates did not justify the conclusion that it was exempt” (161 AD2d 943, 944). This Court granted leave to appeal and we now modify the order of the Appellate Division.

I

Kahal argues on this appeal that the courts below erred in concluding that its challenge to the 1987 assessment was time barred. It argues that because it is a religious corporation its property is fully exempt from real estate taxes and the assessor does not have jurisdiction to place its property on the tax rolls. Thus a challenge to the assessment of its property for purposes of taxation may be challenged at any time in a plenary action, and need not be commenced within the four-month time limitation imposed by article 78 of the CPLR. Kahal argues further that its entitlement to an exemption cannot lawfully be made to depend upon its "timely” filing of an application for exemption on forms prescribed by the State Board of Equalization and Assessment. Moreover, Kahal contends, inasmuch as its tax-exempt status had been established by virtue of the stipulation vacating the assessments for the 1986/1987 school taxes and the 1987 State and county taxes, it was entitled to the exemption in subsequent years; that if the Town intended to revoke its exemption notice of such intention was required and the burden of establishing that the property was no longer entitled to exemption rested with the Town.

While we agree with Kahal that its entitlement to exemption from taxation cannot be made to depend on the timely filing of an application, we conclude that a challenge to such an assessment must be made within the four-month time limitation applicable to proceedings pursuant to CPLR article 78.

II

A

We begin our analysis by observing that the Legislature has declared that "[a]ll real property within the state shall be subject to real property taxation * * * unless exempt therefrom by law” (RPTL 300).

Real Property Tax Law § 420-a expresses the Legislature’s intent in respect to the mandatory exemption of real property owned by nonprofit organizations enumerated therein and provides that:

"1. (a) Real property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section.”

Thus the Legislature has declared that only nonexempt real property shall be subject to real property taxes and that certain specified property shall be entitled to a mandatory exemption. In respect to property of a religious corporation, the Legislature has only required, as a threshold matter, that it be "owned by a corporation * * * organized or conducted exclusively for religious * * * purposes * * * and [be] used exclusively for carrying out thereupon one or more of such purposes”. There is no requirement in section 420-a that in order for the property of such a corporation to be exempted from real property taxes the corporation must complete and file any prescribed application forms.

Respondents argue however, and the courts below agreed, that in order to be entitled to such a mandatory exemption the religious corporation must have timely completed and filed an application for exemption on forms prescribed by the State Board of Equalization and Assessment (SBEA). The argument is that in enacting RPTL 202 (1) (h) which provides that the SBEA shall "[prescribe and * * * furnish to assessors * * * forms relating to assessments, including applications for exemption from real property taxation, which forms shall be used by the assessors and the use of which shall be enforced by the [B]card”, the Legislature intended to empower the Board to prescribe forms and promulgate regulations in respect to their use, in respect to all exempt property including that in the mandatory class.

In implementation of this alleged legislative empowerment, the SBEA has promulgated regulations which require that:

"(c) For each exemption which is entered on the tentative assessment roll, [the assessor must] retain in the office files either:
"(1) a properly completed application form whenever the State Board of Equalization and Assessment has prescribed an application form for exemption from real property taxation; or
"(2) if an application form for a nonprofit organization (mandatory class) exemption pursuant to section 420-a of the Real Property Tax Law has not been filed, a certified statement signed by the assessor that he or she has examined the property for which exemption has been granted and that all of the statutory requirements of section 420-a are satisfied.” (9 NYCRR 190-1.4 [c].)

Respondents conclude based upon RPTL 202 (1) (h) and 9 NYCRR 190-1.4 (c) that since Kahal failed to file for an exemption on forms provided by the SBEA and since an on-site inspection by the assessor failed to reveal that the property was entitled to exemption from real property taxes, summary judgment was properly granted as a matter of law. They rely upon Matter of St. Agnes Church v Daby (148 AD2d 31, supra), Matter of Faculty-Student Assn. v Town of Lyndon (137 Misc 2d 1057), and an opinion of the counsel to the State Board of Equalization and Assessment (see, 8 Opns Counsel SBEA No. 51) as authority for this conclusion.

We disagree and reject these arguments. As noted above there is no provision in RPTL 420-a conditioning entitlement to a mandatory property tax exemption upon the filing of an application. The language is clear and unambiguous; the property described therein owned and used as therein provided "shall be exempt from taxation”. By contrast RPTL 420-b which relates to tax exemptions for a permissive class of nonprofit organizations provides that the real property of the organizations described therein shall be exempt from taxation only in the absence of a local law ordinance or resolution providing otherwise and that "[a]n exemption may be granted pursuant to [that] section only upon application made by the owner of the property on a form prescribed by the [State Board of Equalization and Assessment]”. (RPTL 420-b [7].) It is noted that in amending the Real Property Tax Law in 1981 (see, L 1981, ch 919) to, inter alla, renumber former section 420 as 420-a and to add section 420-b, including the provisions of subdivision (7) requiring the filing of an application for exemption, no such requirement was imposed in respect to exemptions under section 420-a. Thus it may reasonably be inferred that the Legislature did not intend to impose any such requirement in respect to mandatory class exemptions.

We hold therefore that the Legislature’s authorization to SBEA to prescribe and furnish to assessors forms relating to assessments "including applications for exemption from real property taxation” (RPTL 202 [1] [h]) did not give SBEA the authority to require the execution and filing of such forms as a condition to entitlement to an exemption as of right under RPTL 420-a (see, Matter of Thorgeirsdottir v New York City Loft Bd., 77 NY2d 951, affg 161 AD2d 337). To the extent that the SBEA regulation embodied in 9 NYCRR 190-1.4 (c) purports to impose such a condition, it constitutes an illegal addendum to the statute which departs from and is inconsistent with the language of RPTL 420-a and the legislative intent expressed therein. Neither the SBEA nor the courts may "thus materially change[ ] and restrict[] the clear and unambiguous terms of the law.” (Williams Inst. Colored M. E. Church v City of New York, 275 App Div 311, 313, affd 300 NY 716.)

Indeed, an administrative agency may not promulgate a regulation that adds a requirement that does not exist under the statute. As we have only recently reiterated " ' "[administrative agencies can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute” ’ ” (Matter of McNulty v State Tax Commn., 70 NY2d 788, 791, quoting Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 480).

We conclude therefore that the courts below erred in granting summary judgment to defendants in respect to the 1988 assessment.

B

Kahal’s challenge to the 1987 assessment however was properly dismissed as being time barred. Its argument that because its property is mandatorily exempt, the assessor lacked jurisdiction to place the property on the assessment roll as fully taxable and therefore the assessment is illegal and a nullity that may be challenged at any time in a plenary action, must be rejected.

Challenges to real property assessments which allege that the assessment is "excessive, unequal or unlawful, or that the real property is misclassified” (RPTL 706) normally must be asserted in a certiorari proceeding pursuant to article 7 of the Real Property Tax Law. Such a proceeding is the taxpayers’ exclusive remedy by which instances of illegality, overvaluation or inequality as to assessments may be asserted (RPTL 700; see, Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262). Implicit in such a challenge is a concession of the assessor’s jurisdiction over the property in question (Dun & Bradstreet v City of New York, 276 NY 198, 206; Stabile v Half Hollow Hills Cent. School Dist., 83 AD2d 945, 946).

However, where the challenge is that the taxing authority has exceeded its power, a plenary action may be brought collaterally attacking the assessment. The procedures of article 7 need not be followed because the assessment is void (Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262, 269, supra). In Hewlett Assocs. v City of New York (57 NY2d 356, 363) we observed that "[i]t is well recognized that where a challenge is made to the taxing authority’s jurisdiction over the subject property, the settled rule that reviews of a tax assessment may be obtained only by way of the statutory certiorari procedure is not applicable”. We noted in Dun & Bradstreet v City of New York (276 NY 198, 206, supra) that "[i]f taxing officers act without jurisdiction, their acts are illegal and void. In such a case, certiorari is not an adequate remedy even if a proper one.”

The "void” assessment may be challenged in an article 78 proceeding or in a declaratory judgment action (see, Matter of Watchtower Bible & Tract Socy. v Lewisohn, 35 NY2d 92 [improper withdrawal of prior exemption]; Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, affd on opn below 41 NY2d 816; Lee and LeForestier, Review and Reduction of Real Property Assessments in New York § 10.09 [2d ed]). Kahal’s argument that such a declaratory judgment action is governed either by those cases which hold that an equity action to "clear a cloud on title” may be brought at any time or by the "catch-all” six-year limitation of CPLR 213 (1) is without merit. In Solnick v Whalen (49 NY2d 224, 229) we noted that that six-year limitation does not "automatically or necessarily governQ all such actions.” Rather we pointed out that if an examination of the substance of the relationship out of which the claim arises "reveals that the rights of the parties sought to be stabilized in an action for declaratory relief are, or have been, open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that period limits the time for commencement of the declaratory judgment action.” (Id., at 229-230; see also, Press v County of Monroe, 50 NY2d 695.)

It is not disputed that a challenge to a "void” assessment may properly be brought in an article 78 proceeding, "a form of proceeding for which a specific limitation period is statutorily provided.” Thus Kahal’s challenge to the 1987 assessment, to have been timely, must have been brought within four months from the time that the 1987 assessment became final as required by CPLR article 78.

c

Finally we note that inasmuch as the courts below determined, as a matter of law, that Kahal was not entitled to tax exemption for 1988 because of its failure to timely file an application, no issue was raised as to Kahal’s entitlement to the exemption otherwise. Since we conclude that that legal determination was error, we modify the Appellate Division and grant summary judgment to Kahal in respect to that 1988 assessment. Thus we need not consider the argument raised by Kahal as to the res judicata effect of the 1987 stipulation.

Accordingly, the order of the Appellate Division should be modified, without costs, by granting in part plaintiff’s motion for summary judgment, denying in part defendants’ cross motion for summary judgment, and declaring plaintiff’s property exempt from real property taxation for the year 1988, and, as so modified, affirmed.

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

Order modified, etc.

      . The record does not disclose the basis for the dismissal of this grievance.

      . Although other subdivisions of RPTL 420-a set forth various qualifications such an organization must meet, no argument is made here that Kahal fails to meet any of those qualifications.

      . No issue as to Kahal’s having received timely notice of the assessment is raised.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    In the Matter of New York City Transit Authority, Respondent, v State Division of Human Rights, Respondent, and Adrienne Nash, Appellant.
    Argued June 4, 1991;
    decided July 2, 1991

      POINTS OF COUNSEL

      Kenneth E. Gordon and Aragaw Mehari for appellant.
    The court below abused its discretion and exceeded its statutory authority in reducing the Division’s compensatory damages award. (Matter of State Div. of Human Rights [Cottongim] v County of Onondaga Sheriff’s Dept., 71 NY2d 623; State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276; New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; Matter of Holland v Edwards, 307 NY 38; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28; State Div. of Human Rights v Columbia Univ., 39 NY2d 612, 40 NY2d 846, cert denied sub nom. Gilinsky v Columbia Univ., 429 US 1096; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69.)

      Kenneth Howard Schriffrin, Albert C. Cosenza, Richard Dreyfus and George S. Grupsmith for New York City Transit Authority, respondent.
    I. The court below did not exceed its jurisdiction. (Matter of Consolidated Edison Co. v New York State Div. of Human Rights [Easton], 77 NY2d 411; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 43 AD2d 807, 35 NY2d 143.) II. The reduction of the compensatory damage award by the court below was a reasonable exercise of its discretion. (Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; Ferrara v Galluchio, 5 NY2d 16; Matter of Unitel Video v New York State Div. of Human Rights, 147 AD2d 377; Matter of Domino Supermarket v New York State Div. of Human Rights, 147 AD2d 417; Matter of Board of Educ. v State Div. of Human Rights, 109 AD2d 988; State Div. of Human Rights v County of Onondaga Sheriff’s Dept., 127 AD2d 986, 71 NY2d 623; Matter of Almeter v State Div. of Human Rights, 133 AD2d 530; SUNY Coll. v State Div. of Human Rights, 144 AD2d 962; Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442.)

      Rosamond Prosterman and Lawrence Kunin for State Division of Human Rights, respondent.
    I. The court below was arbitrary in its assessment of the Division’s award of compensatory damages herein. (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; State Div. of Human Rights v Wagner, 39 NY2d 865; Matter of Holland v Edwards, 307 NY 38; Matter of Board of Higher Educ. v Carter, 14 NY2d 138.) II. The record supports the Commissioner’s awards to appellant herein. (Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492.)

      Donald L. Cuneo, Diana C. Durham, Donna R. Lenhoff and Leslye Orloff, of the District of Columbia Bar, admitted pro hac vice, for the Women’s Legal Defense Fund and others, amici curiae.

    I. The Division of Human Rights’ damage award is appropriate compensation for Adrienne Nash’s pain and suffering. II. The court below erred in substituting its own judgment on the issue of damages after affirming the Division of Human Rights’ finding of discrimination. (City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 38 NY2d 856; New York Inst. of Technology v State Div. of Human Rights, 40 NY2d 316; State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276; Matter of Holland v Edwards, 307 NY 38; Siegel Co. v Trade Commn., 327 US 608; Matter of State Div. of Human Rights [Cottongim] v County of Onondaga Sheriff’s Dept., 71 NY2d 623; Arc Plumbing & Heating Corp. v Board of Responsibility, 135 Misc 2d 413; Far E. Conference v United States, 342 US 570; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Weber v Town of Cheektowaga, 284 NY 377.) III. The court below exceeded the permissible scope of review in reducing the Division of Human Rights’ compensatory damage award. (Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Matter of Pell v Board of Educ., 34 NY2d 222; Duffy v Holt-Harris, 159 AD2d 542, 76 NY2d 772; Matter of Loeb v New York State Bd. of Law Examiners, 144 AD2d 813; Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28; Matter of Holland v Edwards, 307 NY 38; State Div. of Human Rights v Columbia Univ., 39 NY2d 612.) IV. The court below has a practice of substituting its own judgment for that of the Division of Human Rights on the issue of damages. (Matter of Empbanque Capital Corp. v White, 158 AD2d 686; Matter of Grumman Aerospace Corp. v New York State Div. of Human Rights, 151 AD2d 573, 75 NY2d 701; Matter of Cosmos Forms v State Div. of Human Rights, 150 AD2d 442; Matter of Trans World Airlines v New York Executive Dept., 147 AD2d 575; Kessler Realty v New York State Div. of Human Rights, 137 AD2d 641; Interboro Mgt. Co. v State Div. of Human Rights, 139 AD2d 697; State Univ. Agric. & Tech. Coll. v State Div. of Human Rights, 134 AD2d 339; Matter of Bayport-Blue Point School Dist. v State Div. of Human Rights, 131 AD2d 849; Matter of Wantagh Union Free School Dist. v New York State Div. of Human Rights, 122 AD2d 846, 69 NY2d 823; Matter of Anchor Motor Frgt. v McCall, 119 AD2d 672.) V. The evidentiary burden imposed by the court below is erroneous. (Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 43 AD2d 807, 35 NY2d 143; Price Waterhouse v Hopkins, 490 US 228.)
   OPINION OF THE COURT

Kaye, J.

In an appeal involving established sex discrimination, the issue before us centers on the measurement of damages for complainant’s mental anguish. We conclude that the Appellate Division erred in reducing the damages found by the State Division of Human Rights, and therefore reverse the order and remit the matter to that court for further proceedings in accordance with this opinion.

I.

The following findings were made by the Administrative Law Judge, adopted by the State Commissioner of Human Rights, confirmed by the Appellate Division, and supported by sufficient evidence. The hearing Judge stated that, in his 20-year experience as an Administrative Law Judge with the Human Rights Division, this was "the most shocking instance of abuse of an employee by an employer.” The Commissioner explicitly endorsed that observation, and the Appellate Division as well characterized the Transit Authority’s conduct as "blatant discrimination against [the complainant] solely because of her pregnancy.” (163 AD2d 315, 316.)

Complainant, since August 1978 a bus driver for the New York City Transit Authority, was transferred to Staten Island in September 1980, and during 1981 and 1982 was the only female Transit Authority bus driver there. Four separate episodes of unlawful discriminatory conduct took place between June 1981 and August 1982, relating to her job status before, during and after pregnancy.

The June-July 1981 Discrimination. Having had prior miscarriages and a prolonged fertility problem, complainant, on learning that she was pregnant, in June 1981 sought restricted duty — meaning work other than driving a bus. Male bus drivers with temporary disabilities were routinely granted restricted duty.

Complainant asked the Transit Authority medical office to recommend restricted duty, supporting that request with a letter from her personal physician advising her to restrict physical activity and avoid sudden jolting or jarring, prolonged standing, and excessive lifting or bending. Having been told by the union president that such a job had already been selected for complainant, on June 16, 1981, the Transit Authority doctor — Jacob Oberman — on Transit Authority form (G-46) classified her as "Restricted [Duty],” "Not to operate in road service, no excessive bending or lifting,” and he directed reexamination "post-partum.” He also wrote a memorandum to the clinic, noting that complainant previously had a spontaneous abortion and was therefore not being returned to full duty.

After one week of restricted duty — performing the same work as a male bus driver on restricted duty, and with no further examination by the Transit Authority — complainant was abruptly returned to road service, pursuant to the decision of the Transit Authority medical office. On a G-46 prepared on or about June 23 but dated June 16, Dr. Oberman indicated that he had examined complainant, and that he found her qualified for full duty, describing her disability as "Cramps-Nausea” instead of "Pregnancy,” as on the first June 16 form. The Transit Authority offered no explanation for what the Administrative Law Judge called its "contradictory acts.”

Faced with the choice of driving a bus or not working, complainant determined that she could not afford to be without a paycheck for seven months and had to resume full-duty status. She did, however, secure a second letter from her doctor, stating: "The above-named patient has had [a] prolonged fertility problem of six years. She is now pregnant, with on and off cramps and spotting, and is constantly in fear of losing her expected child. Driving a bus would definitely expose her to the possibility of a miscarriage. * * * Should the patient then abort, and a legal factor arises, who would be responsible?” Complainant tried to present this letter to Dr. Oberman, but his secretary — who carried the letter into his office — told her that the doctor could not see her without an appointment.

On June 29, complainant filed a verified complaint with the Division charging that the Transit Authority had discriminated against her because of her sex, by refusing to place her on restricted duty during the period of her temporary disability due to pregnancy, though such assignments were granted to male employees with temporary disabilities.

The July-September 1981 Discrimination. On July 16, while on full-duty status, complainant had a miscarriage, and was then placed on leave without pay. When she appeared for a prereinstatement examination on September 1, 1981 — prepared for full duty, and so found by a Transit Authority doctor — a second Transit Authority doctor (Dr. Louis Lanzetta) put her on restricted duty until psychiatric evaluation. Complainant’s own doctor’s letter stated that she could return to work and perform her duties as a bus driver.

The Transit Authority psychiatrist reported that, while she "loves her job talking to people,” complainant "presented many controversial issues as to her duty status. She harbors the thought that 'they are trying to get me off the job because I am a woman.’ ” The psychiatrist found her to be very tense and anxious, "shaky and very preoccupied about her nervous feelings.” "Opinion: Anxiety state in a situational problem and job dissatisfaction. Recommendation: Restricted duty temporarily. Re-examination if deemed necessary.”

Dr. Lanzetta then marked complainant permanently for restricted duty, and when she objected — insisting she was fully capable of driving a bus — he responded that she might get pregnant again. Complainant continued to object to restricted duty status. On September 8, Dr. Lanzetta restored her to full duty, but only on her promise that she would stop working immediately if she became pregnant.

In December 1981, complainant amended her complaint to include additional charges of discrimination during this period.

The January-August 1982 Discrimination. Complainant worked as a full-duty bus driver from September 8, 1981 to January 13, 1982. On January 13, 1982, after learning that she was pregnant, complainant requested restricted duty, supporting her request with a letter from her personal physician. This time, however, Dr. Oberman, told her that he would "go further than” her doctor: he classified her "no work,” directing reexamination after delivery. He said he was taking this step because of the previous miscarriage, her "stress,” and her "anxiety state.”

When complainant objected, Dr. Oberman said he didn’t care. To her statement that this was retaliation for his earlier change of her status, Dr. Oberman responded, "Yeah, well, I’m not going to do it again; there is no work.” When complainant noted that she was being denied work — and pay — he said "that’s not my problem.” As the Administrative Law Judge found, "The record is silent as to any legitimate basis for this seemingly excessively hostile and negative treatment of the Complainant and her wishes nor anything to point [to] the unsuitability of a restricted duty assignment for her.” Complainant’s subsequent efforts to change her no-work to restricted-duty status were unavailing, one superior explaining to her that under rule 162 (c) of the "Rules and Regulations Relative to Working Conditions of Employees,” her options were to drive a bus or go on unpaid maternity leave. Complainant remained in no-work status, without compensation or sequential employment privileges, until the birth of her child on August 21, 1982 although, as found, she could have worked in restricted-duty status through August 8.

On February 3, 1982, complainant filed a second verified complaint with the Division alleging discrimination and retaliation by the Transit Authority in January 1982 by forcing her to go on leave when she sought restricted duty.

The September 1981 Psychiatric Examination. The fourth separate act of discrimination found was the reference for psychiatric examination when complainant returned to work in September 1981. Complainant charged that this was retaliation for the charges she had filed with the Division and for opposing the Transit Authority’s unlawful practice in treating pregnant employees differently from male employees with temporary disabilities. The need for psychiatric examination, reflected on her employment record, would — complainant charged — lead to continuing questions about her sanity, especially her fitness to drive a city bus.

Damages Awarded for the Discriminatory Acts

While the various tribunals agreed unanimously that the Transit Authority’s acts constituted unlawful discrimination causing complainant mental anguish, they differed as to appropriate compensation for that injury.

Apart from back pay (not in issue here), the Administrative Law Judge found that the complainant was entitled to $450,000 in damages for mental anguish and aggravation: $250,000 for the Transit Authority’s June-July 1981 discrimination, $50,000 for the July-September 1981 discrimination, $100,000 for January-September 1982 discrimination, and $50,000 for the discriminatory conduct in September 1981. He premised his findings on the complainant’s testimony "at length and in convincing detail” that the Transit Authority’s acts — done intentionally to hurt her — caused her anguish, self-guilt, depression and anger at the time each occurred and that the mental distress persisted, even to the time of her testimony before him in late 1987 and early 1988.

In adopting the Proposed Order of the Administrative Law Judge, the Commissioner noted that complainant would have to live with the thought that her fetus was destroyed because her employer would not grant what the law required, and— while the record did not establish with sufficient certainty that the Transit Authority’s conduct caused her miscarriage— "its conduct brought her callously and wantonly to a decision, to continue working as a bus driver, the consequences of which caused and most likely will continue to cause her feelings of guilt, feelings of resentment and other mental anguish about her lost child, to the end of her days.” The administrative relief included a cease and desist order, back pay and compensatory damages of $450,000 for mental anguish and aggravation.

While agreeing that compensatory damages were appropriate for complainant’s mental anguish, and that such an award might be based solely on her testimony, the Appellate Division concluded that the award of $450,000 was not justified here. Relying on its own recent decision in Matter of Cosmos Forms v State Div. of Human Rights (150 AD2d 442), the court held that complainant had "failed to adduce facts concerning the duration of her condition, its consequences, or any evidence concerning any treatment” (163 AD2d, at 316), and it recommended that a new award not to exceed $75,000 be made on remittitur. We granted leave, and now reverse.

II.

Unlawful discriminatory conduct may be redressed by court action, or by administrative action pursuant to the procedures set out in the Human Rights Law (Executive Law art 15; see especially, Executive Law § 297). That statute empowers the Commissioner of Human Rights to order relief "as in the judgment of the division will effectuate the purposes of this article,” including an award of compensatory damages to the person aggrieved (Executive Law § 297 [4] [c] [iii]). In any subsequent judicial review of the Commissioner’s order, the "findings of facts on which such order is based shall be conclusive if supported by sufficient evidence on the record considered as a whole.” (Executive Law § 298.) The statute, however, does not specify any particular standard for judicial review of the relief awarded by the Commissioner.

This appeal focuses on the standard of review for the Commissioner’s award of compensatory damages for mental anguish and aggravation.

Throughout tort law, psychic injury — by nature essentially subjective — has prompted difficult questions of proof, both as to establishing the genuineness of any injury and as to fixing its dollars-and-cents valuation (see, e.g., Ferrara v Galluchio, 5 NY2d 16, 21-22; 2 NY PJI 617; Prosser and Keeton, Torts § 12 [5th ed]). Such questions have particular pertinence to Human Rights Law cases, where mental suffering is not only compensable (see, State Commn. for Human Rights v Speer, 29 NY2d 555, revg on dissent 35 AD2d 107, 112 [Hopkins, J.]), but also a frequent — sometimes sole — consequence of unlawful discriminatory conduct.

Several competing considerations must be taken into account in the review of mental anguish claims prosecuted before the Division.

Favoring deference to the assessments of the Commissioner are the important objectives of the Human Rights Law, the discretion vested in the agency to achieve those objectives, and its four decades of special experience in weighing the merit and value of such claims. On the other hand, the Legislature has stipulated that the agency may award only compensatory —not exemplary — damages (see, by contrast, Labor Law § 198 [1-a]; Workers’ Compensation Law § 14-a [1]) and it has provided for judicial review. If judicial review is to be more than a rubber stamp of agency orders, obviously there must be sufficient proof of mental anguish caused by the discrimination, as well as the extent of injuries being compensated.

Reflecting a balance of those considerations, in Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights (35 NY2d 143), we sustained the Commissioner’s award of damages for mental anguish, noting that the extremely strong statutory policy of eliminating discrimination gives the Commissioner greater discretion in effecting an appropriate remedy than under strict common-law principles. While the objective of the common-law right is to provide private remedies, in Human Rights Law cases the right is statutory and involves a vindication of both the individual’s interests and those of society. ”[D]ue to the strong anti-discrimination policy spelled out by the Legislature of this State * * * aggrieved individuals] need not produce the quantum and quality of evidence to prove compensatory damages [they] would have had to produce under an analogous provision, and this is particularly so where, as here, the discriminatory act is intentionally committed.” (Id., at 147.)

The existence of compensable mental injury may be proved, for example, by medical testimony where that is available, but psychiatric or other medical treatment is not a precondition to recovery. Mental injury may be proved by the complainant’s own testimony, corroborated by reference to the circumstances of the alleged misconduct. In Batavia itself, sufficient evidence was found in the circumstances of a social event, where blacks were insulted and denied service, and in complainants’ own description of the symptoms they experienced as a result of that discriminatory conduct (see also, Matter of Cullen v Nassau County Civ. Serv. Commn., 53 NY2d 492, 497). The Commissioner’s factual findings as to the existence of mental anguish as a consequence of unlawful discrimination, when supported by sufficient evidence on the record considered as a whole, are of course binding on the reviewing court (Executive Law § 298; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179).

Beyond the fact of mental anguish caused by discriminatory conduct, there must be some evidence of the magnitude of the injury, to assure that the Commissioner’s damage award is neither punitive nor arbitrary.

From this Court’s earliest consideration of the antidiscrimination statute (Matter of Holland v Edwards, 307 NY 38) to our most recent (Matter of Consolidated Edison Co. v New York State Div. of Human Rights, 77 NY2d 411), we have recognized that the relief imposed by the Commissioner need only be reasonably related to the discriminatory conduct. "Unless the award is so arbitrary and capricious as to constitute an abuse of discretion, it is not erroneous as a matter of law (Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72, 79, supra; Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 55, supra; Matter of Holland v Edwards, 307 NY 38, 46, supra).” (Matter of Consolidated Edison Co. v New York State Div. of Human Rights, 77 NY2d, at 420, supra.)

In Consolidated Edison, we affirmed the Commissioner’s award of $10,000 for the complainant’s hurt, humiliation and mental anguish caused by discriminatory hiring and promotion practices, concluding that it was "supported by the evidence and * * * within the range of awards previously approved by this and other courts (see, e.g., Matter of Lutheran Social Servs. v State Div. of Human Rights, 142 AD2d 950, affd 74 NY2d 824 [$25,000]; Matter of New York State Dept. of Correctional Servs. v McCall, 109 AD2d 953 [$10,000]).” (77 NY2d, at 421, supra.)

In reducing the Commissioner’s award from $450,000 to a maximum of $75,000, the Appellate Division misapplied the governing principles.

As is evident from the holding and the writing, the Appellate Division accorded no deference to the Commissioner’s assessment of the magnitude of complainant’s injuries, but without elaboration simply substituted its own view that a maximum of $75,000 would adequately compensate complainant for her mental anguish and aggravation. It did so without first determining whether there was evidence to support the Commissioner’s award of damages. Moreover, despite citation to other cases, the Appellate Division memorandum in no way indicates how this award for four separate injuries compares— qualitatively and quantitatively — with those cases, which are for the most part immediately distinguishable as single incidents of discrimination with scant proof of actual injury, in which the Appellate Division has either affirmed an award under $5,000 or reduced one to that range. Nothing in the law fixes a nominal amount up to $5,000 as appropriate compensation for mental anguish caused by unlawful discrimination.

To the extent the Appellate Division reviewed the evidence, drawing a parallel to its own recent decision in Matter of Cosmos Forms (150 AD2d 442, supra), its conclusions are incorrect. In Cosmos, the only evidence of mental anguish was the complainant’s own testimony that she was emotionally and physically "screwed up.” (Id.) While it is certainly appropriate for the Appellate Division — in its unique role of reviewing a compensatory damage award for excessiveness — to apply objective criteria such as the duration of a complainant’s condition, its severity or consequences, any physical manifestations, and any medical treatment, this case is not Cosmos.

Here, there were extensive findings by the Administrative Law Judge, confirmed by the Commissioner, of four separate episodes of discriminatory conduct by the Transit Authority, and mental anguish and aggravation associated with each, supported by complainant’s testimony, her doctor’s testimony, the Transit Authority’s own medical findings, and the evaluation that, compared to the other Division proceedings, the level of abuse here was "shocking.” For example, in the June-July 1981 period — for which the sum of $250,000 was assessed —there are findings that the Transit Authority’s refusal to allow restricted duty compelled complainant’s decision to continue driving a bus, the consequence of which caused and likely will continue to cause her feelings of guilt, resentment and other anguish over her lost child. The Appellate Division statement that complainant’s feelings of depression after suffering the miscarriage "were not unequivocally attributable to NYCTA” (163 AD2d, at 316) is a mischaracterization of the Commissioner’s finding that, while there was insufficient proof the Transit Authority’s wrongdoing caused the miscarriage, there was a sufficient link between the Transit Authority’s conduct and complainant’s mental anguish after the miscarriage, persisting to the time of her testimony.

Without further recapitulating the record, it is sufficient to note that the Appellate Division, in exercising its authority to review the Commissioner’s award for legal error and excessiveness, did not do what the law required it to do: determine whether the relief was reasonably related to the wrongdoing, whether the award was supported by evidence before the Commissioner, and how it compared with other awards for similar injuries. We therefore remit the matter to that court for review under the proper standard.

Finally, the agency and amici contend that the Commissioner’s awards are arbitrarily cut to nominal amounts, thus trivializing the genuine mental suffering caused by discrimination. There is surely merit in the point that a reviewing court’s mere substitution of a round number, without setting forth any rationale for reaching that number, would be cause for concern. But it also bears note that the same concern may arise when the Division itself does not spell out any rationale for the dollar amount of its monetary awards. In that the concept of compensation, and the fact of judicial review, are part of the process of adjudicating discrimination claims before the Division, some indication of the agency rationale for assigning a particular dollar value to a claim of mental anguish might, for the future, benefit the parties as well as the process, helping to assure that a complainant’s injuries are fairly compensated.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

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

Order reversed, etc.

      . The Transit Authority erroneously asserts that this Court is without jurisdiction to hear the appeal because the order is nonfinal. Plainly, however, this appeal lies pursuant to CPLR 5602 (a) (2) (see, Executive Law § 298; Matter of Zeronda, Inc. v Town Bd., 37 NY2d 198, 200-201; see also, Matter of Power Auth. v Williams, 60 NY2d 315, 323-324). Nor is the core issue one of fact beyond our review, as further argued by the Transit Authority. The issue before us is not the excessiveness or inadequacy of damages but whether the Appellate Division applied the proper standards in reviewing the Commissioner’s order.

      . In that the Commissioner’s damages award is compensatory, the "shocks the conscience” standard of Matter of Pell v Board of Educ. (34 NY2d 222) for review of agency sanctions would be inapplicable (see, Matter of Unitel Video v State Div. of Human Rights, 147 AD2d 377).


text:
    In the Matter of the Commissioner of Social Services, on Behalf of Christine Wandel, Appellant, v Arnaldo Segarra, Respondent.
    Argued May 30, 1991;
    decided July 2, 1991

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Patrick L. Taylor and Pamela Seider Dolgow of counsel), for appellant.
    In a paternity and support proceeding brought by the Commissioner of the New York City Department of Social Services as assignee of the child support rights of a recipient of Aid to Families with Dependent Children, the Family Court improperly limited the support order of a father earning in excess of $46,000 per year to the child’s share of the monthly public assistance grant. Because that order conflicts with governing Federal and State law, which require a support order to be based upon a father’s means, and rewards with a lower support order a father who has abandoned his child to public assistance, it should be reversed. (Landes v Landes, 1 NY2d 358; Robbins v Rubin, 42 AD2d 560; Matter of Gottwals v Gottwals, 67 AD2d 664; Matter of Veneri v Veneri, 40 AD2d 735; "Johnston” v "Johnston”, 177 Misc 618; "Maxim” v "Maxim”, 203 Misc 610; Duerr v Wittmann, 5 AD2d 326; Matter of Storm v None, 57 Misc 2d 342; Matter of L. Pamela P. v Frank S., 59 NY2d 1.)
    Respondent, precluded.
   OPINION OF THE COURT

Alexander, J.

We consider on this appeal the question of whether in a child support proceeding commenced by the Commissioner of Social Services pursuant to Family Court Act § 415, the obligation of a father for the support of his child receiving public assistance is limited to the amount of the child’s share of the monthly public assistance rather than being based on the child’s actual needs and the father’s means. The Appellate Division affirmed Family Court’s determination that the father’s obligation is so limited, concluding that as assignee of the support rights of the custodial mother who receives public assistance under the Aid to Families with Dependent Children (AFDC) program, the Commissioner may only seek reimbursement for the amount of the AFDC grant, and that "applicable Federal and State statutes are likely to preclude the family’s receipt of any such additional funds exceeding $50 per month.” (165 AD2d 655.)

In a paternity proceeding commenced against respondent, Arnaldo Segarra, by the Commissioner of Social Services, a determination of paternity was made against respondent following his numerous defaults in appearance and a Family Court order of filiation was entered on January 7, 1981. In July 1988, the instant proceeding was commenced by the Commissioner on behalf of Christine Wandel and her child, who were recipients of public assistance pursuant to the AFDC program, seeking a support order retroactive to the child’s birth.

Neither respondent nor his attorney appeared at the scheduled hearing before the Hearing Examiner, but respondent’s financial statement and recent pay stubs which had been previously submitted were available and indicated an annual income of approximately $46,000. The Hearing Examiner found that respondent’s income was more than sufficient to meet the public assistance grant and awarded child support in the sum of $269.50 per month, representing the child’s share of the monthly AFDC payment plus $50.

Family Court rejected the Commissioner’s objection to the Hearing Examiner’s findings, stating that the purpose of Family Court Act § 415 was to reimburse the government for moneys expended — not to enrich it. As indicated the Appellate Division affirmed. This Court granted leave to appeal to the Commissioner and we now reverse for the reasons that follow.

Family Court Act § 415 renders a spouse or parent of a recipient of public assistance, of sufficient ability, responsible for the support of such person under 21 years of age. We find nothing in that statute limiting a parent’s obligation to support his or her child to that child’s portion of the public assistance grant. Indeed, the statute explicitly permits consideration of a noncustodial parent’s means in determining the level of child support payments, and the Family Court is authorized in its discretion to require a spouse, parent or stepparent of a recipient of public assistance to contribute "a fair and reasonable sum for the support of such relative”.

The obligation of a parent to support its child arises under both common law and statute (see, Landes v Landes, 1 NY2d 358, 365; Family Ct Act § 413). The financial resources of parents have always been a factor to be taken in account in determining the amount of a child support award under Family Court Act § 413. That statute obligates parents of a child under 21 years of age, to support such child and if they are possessed of or able to earn sufficient means, to pay a fair and reasonable sum for the child as the court may determine. (See, Family Ct Act § 413.)

In 1989, section 413 was amended to adopt guidelines setting minimum and meaningful standards of obligation. (See, L 1989, ch 567, § 8.) The amendment, referred to as the Child Support Standards Act, requires the court to determine the amount of the basic child support obligation by combining the income of both parents and multiplying that income, up to $80,000, by a child support percentage. The resulting figure is then ratably apportioned between the two parents.

The statute (Family Ct Act § 413) was amended further in 1990 (L 1990, ch 818) to provide: "notwithstanding any other provision of law, including but not limited to section four hundred fifteen of this act, the court shall not find that the non-custodial parent’s pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child” (Family Ct Act § 413 [1] [g]). The legislative memorandum indicates that this amendment was intended as a clarification, not a change of the law, and was aimed particularly at courts that have refused to order parents to pay support that exceeds the child’s share of the public assistance grant (Sponsor’s Mem, Assembly 115505-C). Thus, with respect to a parent’s child support obligation, Family Court Act § 415 merely supplements existing law by making it clear that a parent’s duty to support is not abrogated by a child’s receipt of public assistance; it does not limit that obligation to the amount of the public assistance grant.

The Commissioner contends that as the assignee of the custodial parent’s right to compel support from the noncustodial parent he should be entitled to seek a child support award based on the child’s reasonable needs and the parents’ financial means. The Appellate Division concluded that Federal and State statutes and regulations limit the scope of the Commissioner’s child support assignment to reimbursement for the amount of the AFDC grant. We disagree.

The Commissioner’s right to seek support payments on behalf of an AFDC recipient is derived from Social Services Law §§ 111-b and 348 and Family Court Act § 571. The Commissioner is authorized to act as assignee of a child’s right to support with regard to all types of child support payments (Family Ct Act § 571) and an application for aid to dependent children automatically operates as an assignment to the State and the applicable social services district of any rights the applicant has to support from other persons (Social Services Law § 348 [2]). Social services officials are authorized generally, to bring proceedings to enforce assigned support rights pursuant to article 4 of the Family Court Act (Family Ct Act § 571) and Social Services Law § 111-b (2) gives the official bringing the proceeding to enforce such an assignment the same rights as if the proceeding were being brought to enforce section 415 of the Family Court Act. Although Social Services Law § 349-b provides that the amount of the payments due from the absent parent shall be the amount of a current court support order, we find nothing in the relevant statutes or regulations that limit the amount of support which a court may order to the amount of the public assistance grant.

New York has elected to participate in the AFDC program, thus Federal statutes and regulations with respect to that program are controlling to the extent they are applicable. (Matter of Lumpkin v Department of Social Servs., 45 NY2d 351, 355.) The 1975 amendments to the Federal Aid to Families with Dependent Children Act included a scheme for the distribution of court-ordered support collected on behalf of AFDC recipients. The scheme provides for reimbursement to the States for past, as well as present, AFDC payments. This distribution scheme is adopted in the New York State regulations (see, 18 NYCRR 347.13) — and contemplates that all assigned support payments be paid directly to the Commissioner (see, 45 CFR 302.32; 18 NYCRR 347.12 [a]). The Commissioner must then determine if the current support payment makes the family ineligible for AFDC (45 CFR 232.20, 302.32 [b]; 18 NYCRR 347.12 [b]) and if so, the Commissioner’s assignment terminates, except to the extent of unpaid support obligations that have accrued under such assignment (45 CFR 302.51 [f]; 18 NYCRR 347.13 [f]).

Both Federal and State regulations provide for the distribution of support collected on behalf of an AFDC recipient in excess of an AFDC grant. The regulations establish a tiered distribution scheme (see, 42 USC § 657 [b] [1]-[4]; 45 CFR 302.51 [b] [1]-[5]; 18 NYCRR 347.13 [b] [2]-[4]), pursuant to which the first $50 of monthly support collected pursuant to a court order is distributed to the family and is disregarded as income. If the amount collected exceeds $50, the State is entitled to retain, as reimbursement, an amount equal to that month’s assistance payment. Any amount collected in excess of that month’s assistance payment is paid to the family to the limit of the amount required by the court order, and if any amount is collected in excess of the amount required to be paid by court order, it is applied to reimburse the State for past assistance payments made to that recipient. Once the State is reimbursed for AFDC assistance payments, any excess remaining is paid to the subject family. This tiered distribution scheme assures that the State is reimbursed for AFDC assistance payments made by it on behalf of an AFDC recipient. All the moneys collected in excess of the AFDC grant here would have gone to the family because no support arrears existed.

Thus, contrary to the views expressed by the courts below, a support order in excess of the AFDC grant is not precluded by statute or regulation. Limiting the Commissioner’s right to collect support by the amount of an AFDC payment defeats the legislative intent embodied in Family Court Act §§ 413 and 415 that a parent provide for the support of a child commensurate with the child’s needs and the parent’s ability. Moreover, imposing such a limitation creates a disincentive for affluent noncustodial parents to make voluntary child support payments. We conclude therefore that a construction such as that articulated by both the Family Court and the Appellate Division is contrary to both Federal and State law providing for child support awards based upon the reasonable needs of the child as well as the means of the parents (see, 42 USC § 654; Family Ct Act §§ 413, 415).

The soundness of the result we reach is buttressed by the fact that requiring the courts to consider the financial means of a noncustodial parent of a child receiving public assistance not only benefits the child, but potentially results in greater support funds being available to the State for public assistance to others, by reducing or eliminating AFDC payments to those particular recipients. The noncustodial parent is not adversely affected because any support obligation imposed by court order is based upon the parent’s means as well as the child’s reasonable needs. We hold therefore that the Commissioner, as assignee of the rights of an AFDC dependent, is entitled to seek a child support award based upon the child’s needs and the noncustodial parent’s means and that the noncustodial parent’s obligation is not limited to the child’s share of the monthly public assistance grant.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Family Court, New York County, for further proceedings consistent with the opinion herein.

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

Order reversed, etc.

      . The Commissioner concedes that he did not raise the Hearing Examiner’s failure to order retroactive support payments in his formal objection to Family Court nor was it orally raised at the hearing. That issue, thus, was waived and is unreviewable in this Court. (Family Ct Act § 439 [e]; see also, Matter of Werner v Werner, 130 AD2d 754.)

      . Social Services Law §§ 101, 102 impose a duty on a spouse or parent to indemnify the government for funds expended for the support of a child, stepchild, or spouse.

      . Family Court Act §415 provides as relevant: "Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof * * * if of sufficient ability, is responsible for the support of such person * * * provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means”.

      . These statutes were enacted in response to Federal legislation enacted in 1975 affecting all States participating in the Federal Aid to Families with Dependent Children program. In an effort to encourage aggressive implementation of existing child support enforcement laws, the legislation required that an applicant for AFDC benefits must "assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid” (42 USC § 602 [a] [26] [A]; 45 CFR 232.11 [a]).

      . At the time the case was argued before the Appellate Division, Christine Wandel and her child no longer received public assistance. The Commissioner’s assignment continued for the difference between what respondent should have paid in accordance with the child’s needs and his means and what he was ordered to pay for the period when the mother and child were receiving AFDC benefits.


author: Per Curiam.

text:
    In the Matter of Anonymous for Admission as an Attorney and Counselor-at-Law, Appellant.
    Argued June 5, 1991;
    decided July 9, 1991

      POINTS OF COUNSEL

      Alexander D. Forger, Joseph S. Genova and David W. Feeney II for appellant.
    I. The Court of Appeals retains exclusive power to establish criteria of legal knowledge and ability, and the Appellate Divisions may not usurp that power under the guise of determining "fitness”. (Matter of Shaikh, 39 NY2d 676; Matter of Brennan, 230 App Div 218; Law Students Research Council v Wadmond, 401 US 154; Matter of Cassidy, 268 App Div 282, 296 NY 926; Matter of Portnow, 253 App Div 395; Matter of Greenblatt, 253 App Div 391; Matter of Peters, 221 App Div 607, 250 NY 595; Matter of Anonymous, 74 NY2d 938; Konigsberg v State Bar, 353 US 252; Schware v Board of Bar Examiners, 353 US 232.) II. If Shaikh does not control, appellant should have been allowed a hearing to establish relevant facts.

      Sidney Gribetz, Boris Kostelanetz and Peter H. Kaminer for Committee on Character and Fitness, respondent.
    I. A delay of 27 years between the taking of the Bar examination and the seeking of admission is inordinate, and the court below had jurisdiction to consider such delay in passing on the application. (Matter of Harvey, 309 NY 46; Baccus v Karger, 692 F Supp 290; Matter of Feldman, 40 AD2d 616.) II. Applicant waived the hearing now sought in this Court as alternative relief. (Matter of Anonymous, 74 NY2d 938.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, who passed the Bar examination 27 years before applying for admission to practice law in New York, challenges the determination of the Committee on Character and Fitness, affirmed by the Appellate Division, denying his application on the ground of "inordinate delay.” We conclude that the Committee exceeded its authority in denying petitioner’s application on that basis.

After graduation from Harvard Law School in 1959, petitioner that same year passed the Massachusetts Bar examinatian and was admitted to practice in that State. He enrolled in Harvard Graduate School of Business Administration, finishing in 1961, and thereafter accepted a position with an investment banking firm in New York City. In January 1962, petitioner was certified as having passed the New York Bar examination, but he made no effort to complete the admission process until October 1989. At no time did petitioner practice law, in Massachusetts or elsewhere.

In November 1989, during an interview before a subcommittee of the Committee on Character and Fitness, petitioner was told that because of his delay in applying, the subcommittee could not immediately recommend his admission. The subcommittee in fact recommended denial of his application based on the delay.

Petitioner then elected to present his case to the full Committee. At a meeting held in April 1990, he explained that he had delayed completing his application because of his work in the investment banking field, and based on assurances that there was no time limit on his application for membership in the New York Bar. He told the Committee that recent changes in the nature of investment banking and his firm’s practice, as well as his desire to become "of counsel” to a law firm at some point in the future, motivated his application at that time.

Petitioner submitted evidence to the Committee indicating that, although he had never formally engaged in the practice of law in any jurisdiction, he had been involved in numerous business transactions with attorneys concerning legal issues. He also provided affidavits attesting to his background and good moral character.

The Committee adopted the subcommittee report as its report to the Appellate Division. The report concluded that, in determining an applicant’s fitness, the Appellate Division had the power to consider the passage of time between the taking of the Bar examination and the application for admission, and that a delay of 27 years was inordinate. It further concluded that petitioner’s business acuity and distinguished record of community service did not excuse the delay.

After his application was denied, petitioner instituted the present proceeding at the Appellate Division, First Department (see, 22 NYCRR 602.1 [m]; CPLR 9404), for an order granting his application for admission notwithstanding the Committee’s recommendation. The motion was denied, without opinion, and we granted petitioner’s motion for leave to appeal.

We now reverse the Appellate Division order, agreeing with petitioner that the Committee and the court improperly relied on delay as the basis for finding him unfit to practice law.

Admission to the Bar is a two-part qualification process. Section 53 of the Judiciary Law vests the Court of Appeals with broad authority to promulgate rules regulating the admission of attorneys to practice in this State, including the power to provide for a uniform system of examining candidates seeking admission (Judiciary Law § 53 [1], [3]). Pursuant to that authority, this Court has promulgated rules governing uniform educational requirements (22 NYCRR 520.3, 520.4, 520.5), rules creating a uniform Bar examination (22 NYCRR 520.7, 520.8), and a rule governing admission without examination (22 NYCRR 520.9). Although a person may be admitted to the Bar only by order of the appropriate Appellate Division department (22 NYCRR 520.1 [a]), no application may be entertained by that court unless the Board of Law Examiners, which oversees the examination, has certified that the applicant has successfully completed the examination process (see, 22 NYCRR 520.6, 520.7; 22 NYCRR part 6000; see also, Judiciary Law § 56).

The second phase of the qualification process commences with certification by the Board, indicating that the candidate has demonstrated the requisite knowledge of the law and legal ability. The Appellate Division in each department is then charged with determining that the applicant for admission "possesses the character and general fitness requisite for an attorney and counsellor-at-law” (Judiciary Law § 90 [1] [a]; see also, CPLR 9404; 22 NYCRR 520.10).

Definition of "general fitness” is at the core of this appeal. More particularly, does the subject of delay in seeking admission to the Bar fall within the jurisdiction of the Court of Appeals to define uniform standards of legal knowledge and ability, or within the jurisdiction of the Appellate Divisions to determine character and general fitness? Petitioner argues the former, insisting that, back in 1962, he satisfied the only standards that exist for determining legal knowledge and ability, and that the sole remaining inquiry is limited to matters of personal character and integrity. The Committee counters that the Bar Examiners’ certification in 1962 is by now a stale event, that with so many changes in the law since then the public interest is threatened if Appellate Divisions must certify such persons as competent to practice law today, and that the delay therefore goes to petitioner’s "general fitness,” which is within its competence.

In Matter of Shaikh (39 NY2d 676), we were asked a somewhat similar question. There, an individual who had practiced law in the courts of Pakistan sought admission to the Bar of this State, claiming that his experience satisfied the rules governing admission without examination. Shaikh’s application was denied by the Appellate Division, despite his conceded good moral character, because the Committee on Character and Fitness and the court determined that he lacked "the legal training and ability necessary for the admission to the Bar.” (Id., at 680.)

We reversed that order, concluding that the Appellate Division did not have authority to deny Shaikh’s application on the basis of its independent determination that his educational qualifications were inadequate. We made clear that responsibility for determining generalized legal knowledge requirements remains with the Court of Appeals, while responsibility for the wholly separate, individualized determination of a particular applicant’s character and fitness was that of the Appellate Divisions. "Whatever the depth of the entirely understandable concern and conviction of the members of the several Appellate Divisions that unqualified persons should not be admitted to practice in our State, the delegated jurisdiction of these courts is nonetheless limited.” (39 NY2d, at 681.)

The Appellate Division’s authority to determine character and general fitness thus plainly does not include "legal training and ability.” Nonetheless, the Committee urges that Shaikh is materially different from the present case because it involved a specific educational qualification contained in the rules of this Court (22 NYCRR 520.9). By contrast, the Committee asserts, there is no Court of Appeals rule regarding delay, or "staleness” of legal knowledge, leaving that issue for "general fitness” review.

The Committee’s broad definition of general fitness must be rejected.

Viewing the provisions and design of the two-part qualification process for the admission of attorneys, it is plain that questions as to the requisite currency of applicants’ legal knowledge and ability must go to generalized educational qualifications, not individualized concerns of personal character and fitness. As in Shaikh, this conclusion is apparent not only from the provisions and design of the various statutes and rules but also from sound considerations of policy. The qualities of personal moral character and fitness to practice law suggest the need for person-by-person investigation and determination at the local, departmental levels. On the other hand, any requirement that candidates have current legal knowledge would have to be the subject of uniform, State-wide standards. Unevenness among candidates and departments would be "highly inappropriate, if not legally suspect.” (39 NY2d, at 682, supra.)

In Law Students Research Council v Wadmond (401 US 154, 159), the Committee itself espoused as the correct definition of fitness review: "no more than 'dishonorable conduct relevant to the legal profession.’ ” The Committee’s long-standing practice confirms that definition as the governing concept applied throughout the State (see, e.g., Matter of Cassidy, 268 App Div 282, affd 296 NY 926 [applicant advocated violent overthrow of the Government]; Matter of Peters, 221 App Div 607, affd 250 NY 595 [disbarment in sister State]; Matter of Portnow, 253 App Div 395 [false statements under oath]; see generally, Matter of Brennan, 230 App Div 218 [concluding that the Committee is not authorized to examine a candidate’s academic or legal learning; fitness encompasses only general reputation and the like]). Only recently, in upholding a Committee’s rejection of an application based on the candidate’s pending bankruptcy filing (Matter of Anonymous, 74 NY2d 938), we spoke of fitness as "conduct reasonably viewed as incompatible with a lawyer’s duties and responsibilities as a member of the Bar.” (74 NY2d, at 940; see also, Matter of Holtzman, 78 NY2d 184.)

The Committee’s concern about the implications of long delay between the Bar examination and admission is surely understandable, as is its concern that reversal here exposes a gap in the rules that may, if left untended, disserve the public interest. Such concerns, however, point up the need for uniform rules requiring admission within a stated period after certification by the Board of Law Examiners; they do not empower the Committee to overstep its jurisdiction and itself establish those requirements.

Petitioner’s delay in seeking admission should therefore not have been the basis for a finding of unfitness. To the extent Matter of Emerman (27 AD2d 537, affd on opn below 28 NY2d 552) suggests otherwise, it should not be followed.

Finally, we address the Committee’s contention that petitioner’s proper course was to seek a waiver from this Court excusing the delay. An application may be made to this Court for a waiver of any provision of its rules where strict compliance would cause undue hardship (22 NYCRR 520.12). In that there is no rule establishing the purported bar to petitioner’s admission, the waiver procedure is inapplicable.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone and Hancock, Jr., concur in Per Curiam opinion; Judges Simons and Bellacosa taking no part.

Order reversed, etc.

       The exception is the provision for admission without examination where an applicant fulfills the requirements of 22 NYCRR 520.9.


author: Bellacosa, J.

text:
    William Witter, Appellant, v Edward J. Taggart et al., Respondents.
    Argued June 5, 1991;
    decided July 2, 1991

      POINTS OF COUNSEL

      Kenneth L. Gartner for appellant.
    I. The Taggarts’ motion should have been denied and Witter’s motion granted pursuant to the holding in Ammirati v Wire Forms (273 App Div 1010, affd, 298 NY 697). (Zipp v Barker, 40 App Div 1, 166 NY 621; Rainbow Shop Patchogue Corp. v Roosevelt Nassau Operating Corp., 60 Misc 2d 896, 34 AD2d 667; Tarbell v West, 86 NY 280; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242; Long Bldg. v Brookmill Corp., 276 App Div 1087; Holt v Fleischman, 75 App Div 593; Simmons v Crisfield, 197 NY 365; Spencer v Lighthouse, 114 App Div 591; Whistler v Cole, 81 Misc 519, 162 App Div 920; Andy Assocs. v Bankers Trust Co., 49 NY2d 13.) II. The Witter easement is of substantial benefit to Witter and not unduly burdensome to the Taggarts. (Fanberg Realty Corp. v Travelers Cos., 117 AD2d 582; Board of Educ. v Doe, 88 AD2d 108; Zipp v Barker, 40 App Div 1, 166 NY 621.)

      Harvey W. Spizz for respondents.
    I. Inasmuch as the restrictive covenant was not in Taggarts’ chain of title and they had no knowledge of the restrictive covenant, they took title free and clear of the restrictive covenant. (Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242; Andy Assocs. v Bankers Trust Co., 49 NY2d 13; Doyle v Lazarro, 33 AD2d 142, 33 NY2d 981; Ammirati v Wire Forms, 273 App Div 1010, 298 NY 697.) II. Pursuant to RPAPL 1951 and the doctrine of relative hardship, the restrictive covenant should not be enforced as dismantling the existing dock would be costly and highly disruptive to the Taggarts, while the benefit to Witter’s view is insubstantial. (Orange & Rockland Utils. v Philwold Estates, 52 NY2d 253; Board of Educ. v Doe, 88 AD2d 108; Lewis v Spies, 43 AD2d 714; Smith v Community Bd. No. 14,
      128 Misc 2d 944; Zipp v Barker, 40 App Div 1, 166 NY 621; Rainbow Shop Patchogue Corp. v Roosevelt Nassau Operating Corp., 60 Misc 2d 896.)
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff Witter and defendants Taggarts are East Islip neighboring property owners. Their homes are on opposite sides of a canal on the south shore of Long Island. Witter’s home is north of the canal and the Taggarts’ home and dock are across the canal on the south side. The Winganhauppauge or Champlin’s Creek lies immediately west of both parcels. Their property dispute arose when the Taggarts erected a 70-foot long dock on their canal-side frontage. This was done after a title search revealed that their deed expressly permitted building the dock and reflected no recorded restrictions in their direct property chain against doing so. Witter complained of a violation of his scenic easement to an unobstructed view of the creek and an adjacent nature preserve, which he claims is protected by a restrictive covenant contained in his chain of title. He sued to compel the Taggarts to dismantle and remove the dock and to permanently enjoin any such building in the future.

Supreme Court granted the Taggarts’ motion for summary judgment dismissing Witter’s complaint and denied Witter’s cross motion for summary judgment. Relying principally on Buffalo Academy of Sacred Heart v Boehm Bros. (267 NY 242), the trial court held that the Taggarts are not bound by or charged with constructive notice of a restrictive covenant which does not appear in their direct chain of title to the allegedly burdened land. Although it noted a possible conflict between Buffalo Academy (id.) and our affirmance of the result in Ammirati v Wire Forms (273 App Div 1010, affd without opn 298 NY 697), the court distinguished and explained away the conflict.

The Appellate Division affirmed the instant case, reasoning that under Buffalo Academy (267 NY 242, supra) the restrictive covenant contained in the chain of deeds to Witter’s allegedly benefited parcel was outside the chain of title to the Taggarts’ land and did not constitute binding notice to them (167 AD2d 397).

We granted Witter’s motion for leave to appeal to decide whether the covenant recited in Witter’s chain of title to his purported "dominant” land, which appears nowhere in the direct chain of title to the Taggarts’ purported "servient” land, burdens the Taggarts’ property. We agree with the lower courts that it does not, and therefore affirm the order of the Appellate Division.

The homes of these neighbors are located on lots which have been separately deeded through a series of conveyances, originally severed and conveyed out by a common grantor, Lawrance. Lawrance conveyed one parcel of his land to Witter’s predecessor in title in 1951. The deed contained the restrictive covenant providing that "no docks, buildings, or other structures [or trees or plants] shall be erected [or grown]” on the grantor’s (Lowrance’s) retained servient lands to the south "which shall obstruct or interfere with the outlook or view from the [dominant] premises” over the Winganhauppauge Creek. That deed provided that the covenant expressly ran with the dominant land. William and Susan Witter purchased the dominant parcel in 1963 by deed granting them all the rights of their grantor, which included the restrictive covenant. In 1984, Susan Witter transferred her interest to William Witter alone.

After common grantor Lawrance died, his heirs in 1962 conveyed his retained, allegedly servient, land to the Taggarts’ predecessor in title. Lawrance’s deed made no reference to the restrictive covenant benefiting the Witter property and neither did the heirs’ deed to the Taggarts’ predecessors. The restrictive covenant was also not included or referenced in any of the several subsequent mesne conveyances of that allegedly servient parcel or in the deed ultimately to the Taggarts in 1984. Quite to the contrary, the Taggarts’ deed specifically permitted them to build a dock on their parcel.

Restrictive covenants are also commonly categorized as negative easements. They restrain servient landowners from making otherwise lawful uses of their property (Huggins v Castle Estates, 36 NY2d 427, 430; Trustees of Columbia Coll. v Lynch, 70 NY 440; 4A Warren’s Weed, New York Real Property, Restrictive Covenants, § 1.05, at 12 [4th ed]; 3 Powell, Real Property ¶ 405, at 34-20). However, the law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them (Huggins v Castle Estates, supra, at 430; Premium Point Park Assn. v Polar Bar, 306 NY 507, 512; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY, supra, at 249). Courts will enforce restraints only where their existence has been established with clear and convincing proof by the dominant landowner (Huggins v Castle Estates, supra, at 430; 4A Warren’s Weed, op. cit., Restrictive Covenants, § 2.03, at 17).

The guiding principle for determining the ultimate binding effect of a restrictive covenant is that "[i]n the absence of actual notice before or at the time of * * * purchase or of other exceptional circumstances, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to [that owner] or [that owner’s] direct predecessors in title.” (Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY, supra, at 250; see, 4A Warren’s Weed, op. cit., Recording, § 5.06; Restrictive Covenants, § 3.05, at 32-33; 5A Warren’s Weed, op. cit., Title Examination, § 5.18, at 67; 5 Powell, Real Property ¶ 673 [2], at 60-80 — 60-82.) Courts have consistently recognized and applied this principle, which provides reliability and certainty in land ownership and use (see, Doyle v Lazarro, 33 AD2d 142, 144, affd without opn 33 NY2d 981; see also, Andy Assocs. v Bankers Trust Co., 49 NY2d 13, 24; Oak Lane Realty Corp. v Trinity Evangelical Lutheran Church, 7 NY2d 984, affg 7 AD2d 1007; cf., Ammirati v Wire Forms, 76 NYS2d 379, revd 273 App Div 1010, affd without opn 298 NY 697, supra; Marra v Simidian, 79 AD2d 1046; Long Bldg. v Brookmill Corp., 276 App Div 1087).

In Buffalo Academy, we held that a restrictive covenant did not run with the dominant land, but added that even if it did, the servient landowners were not bound because the deed to the servient land did not reflect the covenant. We noted that this rule is “implicit in the acts providing for the recording of conveyances.” (267 NY, supra, at 250.) The recording act (Real Property Law art 9) was enacted to accomplish a twofold purpose: to protect the rights of innocent purchasers who acquire an interest in property without knowledge of prior encumbrances, and to establish a public record which will furnish potential purchasers with actual or at least constructive notice of previous conveyances and encumbrances that might affect their interests and uses (see, Andy Assocs. v Bankers Trust Co., 49 NY2d, supra, at 20).

The recording statutes in a grantor-grantee indexing system charge a purchaser with notice of matters only in the record of the purchased land’s chain of title back to the original grantor (see, Andy Assocs. v Bankers Trust Co., supra, at 24; 4A Warren’s Weed, op. cit., Recording, § 1.04, at 10; Aiello v Wood, 76 AD2d 1019; Doyle v Lazarro, 33 AD2d, supra, at 144, affd without opn 33 NY2d 981, supra). Buffalo Academy recognized that a "purchaser is not normally required to search outside the chain of title” (Doyle v Lazarro, supra [emphasis added]; accord, Steinmann v Silverman, 14 NY2d 243, 247), and is not chargeable with constructive notice of conveyances recorded outside of that purchaser’s direct chain of title where, as in Suffolk County (see, Real Property Law § 316-a), the grantor-grantee system of indexing is used (see, Andy Assocs. v Bankers Trust Co., 49 NY2d, supra, at 24; 4A Warren’s Weed, op. cit., Restrictive Covenants, § 3.05, at 33-34; 5A Warren’s Weed, op. cit., Title Examination, § 5.18, at 67-68). This is true even if covenants are included in a deed to another lot conveyed by the same grantor (Doyle v Lazarro, supra, at 144; 5A Warren’s Weed, op. cit., Title Examination, § 5.18, at 67).

To impute legal notice for failing to search each chain of title or "deed out” from a common grantor "would seem to negative the beneficent purposes of the recording acts” and would place too great a burden on prospective purchasers (Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY, supra, at 250). Therefore, purchasers like the Taggarts should not be penalized for failing to search every chain of title branching out from a common grantor’s roots in order to unearth potential restrictive covenants. They are legally bound to search only within their own tree trunk line and are bound by constructive or inquiry notice only of restrictions which appear in deeds or other instruments of conveyance in that primary stem. Property law principles and practice have long established that a deed conveyed by a common grantor to a dominant landowner does not form part of the chain of title to the servient land retained by the common grantor (see, 5A Warren’s Weed, op. cit., Title Examination, § 3.02).

A grantor may effectively extinguish or terminate a covenant when, as here, the grantor conveys retained servient land to a bona fide purchaser who takes title without actual or constructive notice of the covenant because the grantor and dominant owner failed to record the covenant in the servient land’s chain of title (see, 3 Powell, Real Property ¶¶ 421, 424, at 34-269—34-270; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242, supra; Goldstein v Hunter, 257 NY 401; Tufts v Byrne, 278 App Div 783; see also, Real Property Law § 291). One way the dominant landowner or grantor can prevent this result is by recording in the servient chain the conveyance creating the covenant rights so as to impose notice on subsequent purchasers of the servient land (see, 3 Powell, Real Property ¶ 424, at 34-271 — 34-272).

It goes almost without repeating that definiteness, certainty, alienability and unencumbered use of property are highly desirable objectives of property law. To restrict the Taggarts because of Lawrance’s failure to include the covenant in the deed to his retained servient land, or for the failure by Witter’s predecessors to insist that it be protected and recorded so as to be enforceable against the burdened property, would seriously undermine these paramount values, as well as the recording acts.

Ammirati v Wire Forms (76 NYS2d 379, revd 273 App Div 1010, affd without opn 298 NY 697, supra), on which Witter principally relies, is readily harmonized with Buffalo Academy’s “exceptional circumstances” qualifying clause. Initially, we note that Ammirati (supra) predates several decisions by this Court reaffirming the long-standing principles articulated and soundly applied in Buffalo Academy (supra; see, Andy Assocs. v Bankers Trust Co., 49 NY2d 13, 21, supra; Doyle v Lazarro, 33 AD2d 142, 144, affd without opn 33 NY2d 981, supra; see also, Steinmann v Silverman, 14 NY2d 243, 247, supra). In Ammirati, the common grantor conveyed a landlocked dominant estate. The recorded dominant deed and subsequent deeds in that chain of title recited an affirmative easement for ingress and egress over the grantor’s adjoining retained servient land. The Appellate Division held that the servient land was burdened even though the easement was not included in its chain of title, reasoning that Buffalo Academy was inapplicable because “[i]t deals only with a covenant imposing building restrictions upon the use to which the property may be put.” (Ammirati v Wire Forms, 273 App Div 1010, supra; accord, Marra v Simidian, 79 AD2d 1046, supra; Long Bldg. v Brookmill Corp., 276 App Div 1087, supra.)

Our affirmance only of the result reached in Ammirati (see, People ex rel. Palmer v Travis, 223 NY 150, 156) did not alter. the general principles articulated in Buffalo Academy and is readily supportable in view of the sui generis features in Ammirati (supra), i.e., a landlocked dominant parcel with an affirmative easement by necessity (see, 3 Powell, Real Property ¶ 410, at 34-61 — 34-66; see also, Real Property Law §335-a; Matter of Pratt v Allen, 116 Misc 2d 244). The circumstances constituting the "necessity” ordinarily also constitute inquiry notice of the easement, which limits the common grantor servient owner’s ability to extinguish the easement. In this case, the Taggarts did not have inquiry notice of a covenant in the deed to Witter’s fully accessible parcel located across the canal.

Although the context of this restrictive covenant case parallels the situation of Buffalo Academy, we note further that the general rule of that case does not turn on the distinction between an affirmative or negative easement, and to the extent that the Appellate Division memorandum in Ammirati may be read inconsistently with Buffalo Academy in that respect, we add that it should not be followed.

We emphasize that our affirmance in Ammirati does not, as Witter would have us now hold, stand for the proposition that where a deed from a common grantor separates parcels into dominant and servient properties, the deed conveying the dominant parcel is considered part of the chain of title of the retained servient land. Rather, we hold that, consistent with long-standing precedents and property principles, the Taggarts did not have actual or constructive notice of this restrictive covenant because it was never included in their deed or direct chain of title. There being no other imputable constructive or inquiry notice, they are not bound by that covenant.

We have examined the other issues raised by the parties and determine they are without merit.

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

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

Order affirmed, with costs.