author: Rosenblatt, J.

text:
    [821 NE2d 133, 787 NYS2d 708]
    David J. Tonking et al., Plaintiffs, v Port Authority of New York and New Jersey et al., Defendants. (And a Third-Party Action.) Bovis Lend Lease LMB, Inc., Formerly Known as Lehrer McGovern Bovis, Inc., Second Third-Party Plaintiff-Appellant, v V.P.H. Mechanical Corp., Second Third-Party Defendant-Respondent.
    Argued October 19, 2004;
    decided December 2, 2004

      POINTS OF COUNSEL

      Newman Fitch Altheim Myers, P.C., New York City (Michael H. Zhu, Abraham S. Altheim and Steven N. Shapiro of counsel), for second third-party plaintiff-appellant.
    An obligation on the part of VEH. Mechanical Corp. to indemnify Bovis Lend Lease LMB, Inc. is clearly expressed in the contract or at the very least can be implied from the contract between VEH. and the Port Authority of New York and New Jersey. (Hooper Assoc. v AGS Computers, 74 NY2d 487; Laba v Carey, 29 NY2d 302; Kenny v Fuller Co., 87 AD2d 183; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169; Pensee Assoc. v Quon Indus., 241 AD2d 354; Mazzola v County of Suffolk, 143 AD2d 734; Lipshultz v K & G Indus., 294 AD2d 338; Matter of Wallace v 600 Partners Co., 205 AD2d 202.)

      Callan, Koster, Brady & Brennan, LLP, New York City (Michael P Handler and Jason E. Goldberg of counsel), for second third-party defendant-respondent.
    I. Neither the language and purpose of the Port Authority of New York and New Jersey-VEH. Mechanical Corp. contract nor the surrounding facts and circumstances show that the parties intended to impose an obligation upon VEH. to indemnify Bovis Lend Lease LMB, Inc. Therefore, the lower courts properly dismissed Bovis’s third-party action against VEH. (Hooper Assoc. v AGS Computers, 74 NY2d 487; Levine v Shell Oil Co., 28 NY2d 205; Kurek v Port Chester Hous. Auth., 18 NY2d 450; Niagara Frontier Transp. Auth. v Tri-Delta Constr. Corp., 107 AD2d 450, 65 NY2d 1038; Margolin v New York Life Ins. Co., 32 NY2d 149; Inman v Binghamton Hous. Auth., 3 NY2d 137; Lipshultz v K & G Indus., 294 AD2d 338; Wisniewski v Kings Plaza Shopping Ctr. of Flatbush Ave., 279 AD2d 570; Solomon v City of New York, 111 AD2d 383, 70 NY2d 675; A.R. Mack Constr. Co. v Patricia Elec., 5 AD3d 1025.) II. Under the strictly applied exclusive remedy provisions of section 11 of the Workers’ Compensation Law, the indemnification clause at issue does not constitute a written contract by which VEH. Mechanical Corp. “had expressly agreed to contribution to or indemnification of’ Bovis Lend Lease LMB, Inc. (Castro v United Container Mach. Group, 96 NY2d 398; Hooper Assoc. v AGS Computers, 74 NY2d 487.) III. Third-party beneficiary clauses are strictly construed by the courts. (Artwear, Inc. v Hughes, 202 AD2d 76; Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38; Internationale Nederlanden [U.S.] Capital Corp. v Bankers Trust Co., 261 AD2d 117; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; Hooper Assoc. v AGS Computers, 74 NY2d 487; A.R. Mack Constr. Co. v Patricia Elec., 5 AD3d 1025; Lipshultz v K & G Indus., 294 AD2d 338.) IV In the event that this Court reverses the Appellate Division’s decision and order and denies VEH. Mechanical Corp.’s motion to dismiss pursuant to CELR 3211, Bovis Lend Lease LMB, Inc.’s cross motion for summary judgment should be denied and VEH. should be entitled to conduct discovery. (Mejia v Trustees of Net Realty Holding Trust, 304 AD2d 627.)
   OPINION OF THE COURT

Rosenblatt, J.

This case involves a dispute over the scope of an indemnification clause in a renovation contract between the owner of a building and a contractor. The agreement obligated the contractor to indemnify the owner and, among others, the owner’s “agents” for certain claims arising out of the project. The question before us is whether a firm that performed management services for the owner qualified as the owner’s agent under the indemnification clause. We hold that it did not.

In 1999, the Port Authority of New York and New Jersey entered into a renovation contract with VEH. Mechanical Corp. for heating and ventilation work at One World Trade Center. As owner, Port Authority also contracted with Bovis Lend Lease LMB, Inc. formerly known as Lehrer McGovern Bovis, Inc. for certain construction management services for the project. Plaintiff, an employee of VEH., was injured on the job and sued Port Authority and Bovis, alleging negligence and Labor Law violations.

Port Authority commenced a third-party action against Bovis, which in turn brought a third-party action against VEH. Bovis acknowledged that it had no contractual relationship with VEH., but asserted that it was nevertheless entitled to contractual indemnification based on an indemnity clause in the contract between VP.H. and Port Authority. Supreme Court granted VEH.’s motion to dismiss the third-party complaint against it, concluding that Bovis was not entitled to indemnification. A divided Appellate Division affirmed, as do we.

The outcome of this appeal turns on the language of the contract and whether, as contracting parties, Port Authority and VEH. intended the indemnification clause to benefit Bovis. The relevant provisions read as follows:

“[VP.H.] shall indemnify the Authority against [certain losses] to the extent caused by the negligent acts or omissions of [VEH.], including all expense incurred by it in the defense, settlement or satisfaction thereof. . .
“The provisions of this numbered clause shall also be for the benefit of the Commissioners, officers, agents and employees of the Authority, so that they shall have all the rights which they would have under this numbered clause if they were named at each place above at which the Authority is named, including a direct right of action against [VEH.] to enforce the foregoing indemnity” (emphasis added).

The contract does not define the term “agent.” Bovis maintains that it qualifies as Port Authority’s agent because the Authority retained supervision and control over Bovis’s work. Pursuant to its contract with Port Authority, Bovis was required to furnish the Authority with cost estimates and could start work only after the Authority approved the estimates. Further, Port Authority required Bovis to submit specifications and daily time records and could not subcontract any of its work without the Authority’s prior written approval. Moreover, all copies of documents and plans that Bovis generated became the property of Port Authority.

In arguing that Bovis was not Port Authority’s agent, VEH. asserts that while the contract between the Authority and VEH. refers to the “construction manager” more than 130 times, the indemnification clause contains no reference to the construction manager or to Bovis by name. VEH. further points out that nowhere in the contract is the construction manager referred to as an agent of Port Authority. VEH. also asserts that in the section of the contract that prohibited VEH. from giving gifts to Fort Authority, the contracting parties used the terms “agent” and “construction manager” as separate classifications.

We agree with the Appellate Division majority. Bovis has pieced together a number of factors that still fall short of an indemnity obligation. In Hooper Assoc. v AGS Computers (74 NY2d 487 [1989]), we set forth the governing rule. There, the issue was whether in a contract between a buyer and seller an indemnity clause entitled the buyer to recover counsel fees. In ruling against the plaintiff, we held that “[w]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” (id. at 491 [citing cases]). In the case before us, as in Hooper, the language of the parties is not clear enough to enforce an obligation to indemnify, and we are unwilling to rewrite the contract and supply a specific obligation the parties themselves did not spell out. If the parties intended to cover Bovis as a potential indemnitee, they had only to say so unambiguously.

Our result is in keeping with the Omnibus Workers’ Compensation Reform Act of 1996 (L 1996, ch 635), by which the Legislature limited employers’ liability to third parties for injury to their employees (see Castro v United Container Mach. Group, Inc., 96 NY2d 398 [2001]). Where the plaintiff has not sustained a “grave injury,” section 11 of the Workers’ Compensation Law bars third-party actions against employers for indemnification or contribution unless the third-party action is for contractual indemnification pursuant to a written contract in which the employer “expressly agreed” to indemnify the claimant. Requiring the indemnification contract to be clear and express furthers the spirit of the legislation.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order affirmed, with costs.

       Plaintiff obtained summary judgment on his Labor Law § 240 (1) claim against Port Authority and Bovis. Plaintiff received workers’ compensation benefits as a result of the accident. Supreme Court noted that he did not sustain a “grave injury” as defined in Workers’ Compensation Law § 11. That issue is not before us.


source: Caselaw Access Project

license: Public Domain

text:
    [821 NE2d 955, 788 NYS2d 651]
    The People of the State of New York, Respondent, v Mark P. Jones, Appellant.
    Argued November 17, 2004;
    decided, December 16, 2004

      POINTS OF COUNSEL

      Edward, J. Nowak, Public Defender, Rochester (Timothy P. Donaher of counsel), for appellant.
    The trial court erred in refusing to instruct the jurors that defendant had no duty to retreat from his own home before using deadly physical force against his cohabitant when the prosecutor implied that he had such a duty. (People v Tomlins, 213 NY 240; People v McManus, 67 NY2d 541; Wilson v Arkansas, 514 US 927; Miller v United States, 357 US 301; Allen v United States, 164 US 492; Rowe v United States, 164 US 546; Brown v United States, 256 US 335; Shorter v People, 2 NY 193; People v Sullivan, 7 NY 396.)

      Michael C. Green, District Attorney, Rochester (Arthur G. Weinstein of counsel), for respondent.
    Where the jury heard nothing about the duty to retreat before using deadly force in self-defense, there was no reason for the court to explain the “dwelling” exception to that duty. (People v Watts, 57 NY2d 299; People v Reynoso, 73 NY2d 816; People v Emmick, 136 AD2d 892; People v Tomlins, 213 NY 240; Brown v United States, 256 US 335.)
   OPINION OF THE COURT

Rosenblatt, J.

In essence, our self-defense statute provides that a person attacked with deadly force may respond in kind only if unable to retreat with complete safety. Penal Law § 35.15 (2) (a) contains an exception relevant to this appeal: someone who would otherwise have to retreat need not do so if attacked at home (see Penal Law § 35.15 [2] [a] [i]). The question before us is whether the exception applies when the assailant and the defender share the same dwelling. We hold that it does.

Defendant choked his live-in girlfriend to death after she picked up a knife during a heated argument with him. In its charge on justifiable homicide, the trial court refused to instruct the jury that because defendant was in his own home he had no duty to retreat before using deadly force. This refusal was error.

I.

Using a public telephone in his neighborhood, defendant called 911 and revealed that three weeks earlier he had killed his girlfriend in their Rochester apartment. He added that her body was still at the residence and that “I’m admitting to it; there’s no denying it. There ain’t nobody else’s fault. Just me.” The police picked defendant up and went to the apartment. On the way, defendant admitted that he and his girlfriend had a fight in which he “choked the shit out of her” and wanted the police to see for themselves. Inside the apartment, they saw the decayed body and, under the television set, discovered a knife.

After warning defendant of his Miranda rights, the police investigators took a signed statement from him. Defendant said that he and the deceased had been in an argument over money she owed a drug dealer. She called the police, at whose behest defendant left the premises for a short time to cool off. When defendant returned, there was a party going on, which irritated him and generated another argument. The girlfriend slapped defendant and picked up a steak knife. When she tried to slap him a second time, he grabbed her, and she dropped the knife on the floor. “I had her by the throat,” defendant said, and “ended up choking the crap out of her.” He called 911 to turn himself in after hearing a church sermon, following which he felt that “every man has to pay his dues for the sins and the crap that he does.” The medical examiner concluded that the likely cause of death was asphyxiation by manual strangulation.

By and large, defendant’s trial testimony tracked his confession. He said that he and his girlfriend had argued and that when she picked up a knife, he grabbed her neck, adding that he then blacked out and did not remember much until after he realized she was on the floor. He lifted her up but did not call for medical help to see if she could be revived. During cross-examination, the prosecutor several times implied that before strangling the deceased, defendant should have left the apartment and was entirely free to do so. Further, the prosecutor argued in summation that defendant could have walked out the door just as easily as he placed his hand on the deceased’s neck.

At the precharge conference, the defense asked for a justification charge. The prosecutor objected, asserting that under no view of the evidence could a jury find defendant justified in using deadly force. The court instructed the jury as to the justifiable use of deadly force but refused defendant’s request to tell the jury that under Penal Law § 35.15 (2) (a) (i) defendant owed no duty to retreat when under attack in his own home.

The jury found defendant guilty of manslaughter first degree, in violation of Penal Law § 125.20 (1). The Appellate Division affirmed, ruling that the trial, court did not err in refusing to instruct the jury that defendant had no duty to retreat before using deadly force. The Court stated that it was preferable for the trial court to avoid any confusion on the part of the jury by not mentioning the duty to retreat at all, as opposed to mentioning a general duty to retreat and then qualifying that duty by delineating the applicable home exception. We disagree and conclude that the trial court erred in refusing to include the home exception instruction in its justification charge. For reasons that follow, however, we find the error harmless and affirm defendant’s conviction.

II.

Penal Law § 35.15 (2) (a) provides that deadly force may not be used upon another person unless the defender reasonably believes that such other person is using or about to use deadly force. Even then, the defender may not use deadly force “if he knows that he can with complete safety as to himself and others avoid the necessity of doing so by retreating.”

The duty to retreat reflects the idea that a killing is justified only as a last resort, an act impermissible as long as other reasonable avenues are open. This has been true throughout New York’s statutory and decisional law, which in turn grew out of the common law.

Clause (i) of Penal Law § 35.15 (2) (a) creates an exception to the duty to retreat, under which the person attacked “is under no duty to retreat if he is . . .in his dwelling and not the initial aggressor.” The language underlying the home exception stems from the common-law teaching that people’s homes are their castles, and that as such one’s home is a place of sanctuary; a castle to which, and not from which, a person retreats. Thus, it has long been held that people might defend themselves “against felonious attack without retreating from [their castles], since that would be to give up the protection of a ‘castle’ which the law allows.”

The rationale for standing one’s ground when attacked at home is most obvious when defending against an assailant who is an intruder, or at least not a member of the defender’s household. Although the home exception seems less obvious when the assailant and the defender are members of the same household (and thus, so to speak, share the same castle), we have unwaveringly applied the exception ever since the issue arose 90 years ago in People v Tomlins (213 NY 240 [1914]). There, the defendant shot and killed his son in a residence they shared. Judge Cardozo traced the common-law development of the general duty to retreat and the exception the “castle” doctrine by which a defender, attacked at home, need not become a “fugitive” before responding in kind. Most pertinent to the appeal before us, Tomlins (at 243-244) underscored that it makes no difference “whether the attack proceeds from some other occupant or from an intruder.”

We affirm the castle doctrine in its application to occupants of the same household. This has been our decisional law at least since Tomlins, and it has particular importance in cases of domestic violence, most often against women.

Here, having instructed the jury on the use of deadly force, the court should have gone on to discuss the rules governing retreat, including the home exception, particularly because the prosecutor argued to the jury that defendant should have retreated. Under the circumstances of this case, however, this omission does not warrant reversal.

Penal Law § 35.15 (2) (a) prohibited defendant from using deadly force unless he reasonably believed that the deceased was using or about to use deadly force. The proof supports no such belief. In his confession, defendant stated that, when the deceased tried to slap him, he grabbed her, she dropped the knife, and he had her by the throat. Moreover, in his trial testimony, defendant said that when the decedent picked up a knife, he grabbed her neck and blacked out. However we interpret this sequence, the predicate for the use of deadly force the reasonable belief that one is under deadly attack is lacking.

In People v Watts (57 NY2d 299, 302 [1982]), the sole basis for justification was the defendant’s statement to the police that the victim “came after [defendant] in his room with a kitchen knife.” This bare contention, we held, provided no possible basis to conclude that the defendant reasonably believed he was in imminent danger of being subjected to deadly force. In the case before us, there was even less of a basis. In Watts, the victim “came after” the defendant with the weapon; here, she merely picked up the knife and while she tried to slap defendant, he choked her to death. Although defendant testified that after killing her, he experienced fear, he never claimed, and there is no reason to believe, that he was fearful of being killed or harmed by the actions of the deceased. In this context we note that defendant had a considerable height and weight advantage over the deceased, and also knew that she had been drinking. Her blood alcohol level tested at .22.

In sum, the court gave an incomplete justification charge which, under the circumstances, was neutral if not to defendant’s benefit. The court’s failure to elaborate and add the home exception does not warrant reversal. The overwhelming evidence disproved the justification defense, and there is no reasonable possibility that the verdict would have been different had the court given the requested instruction (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Stevens, 245 AD2d 39 [1st Dept 1997]).

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order affirmed.

      . On cross-examination, defendant stated the deceased was 47 years old, stood 5 feet, 1 inch or 5 feet, 2 inches and weighed about 100 to 105 pounds. Defendant weighed 165 pounds and stood about 5 feet, 9 inches or 5 feet, 10 inches.

      . See e.g. Ex parte Tayloe (5 Cow 39 [1825]); People v McLeod (25 Wend 483, 587, 1 Hill 377, 420 [1841]); People v Sullivan (7 NY 396 [1852]); Shorter v People (2 NY 193 [1849]).

      . The home exception to the duty to retreat, sometimes referred to as the “castle” doctrine, may have been first articulated in Semayne’s Case (5 Co Rep 91a, 91b, 77 Eng Rep 194, 195 [KB 1603] [“That the house of every one is to him as his castle and fortress, as well as for his defence against injury and violence, as for his repose. . . .”]). Blackstone noted that the “law of England has so particular and tender a regard for the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity” (4 Blackstone, Commentaries on Laws of England, at 223 [1765-1769]).

      . Beale, Retreat From a Murderous Assault (16 Harv L Rev 567, 574-575 [1903]); see also Alberty v United States (162 US 499, 505 [1896]; Beard v United States (158 US 550, 563-564 [1895]).

      . See also People v Emmick (136 AD2d 892 [4th Dept 1988]); People v Primus (178 AD2d 565 [2d Dept 1991]); People v Emick (103 AD2d 643, 656 [4th Dept 1984]). Most states have agreed, some citing Tomlins, in applying the castle doctrine to cohabitants as well as intruders. See e.g. State v Phillips (38 Del 24, 187 A 721 [1936]); Weiand v State (732 So 2d 1044 [Fla 1999]); State v Leeper (199 Iowa 432, 200 NW 732 [1924]); People v Lenkevich (394 Mich 117, 229 NW2d 298 [1975]); State v Glowacki (630 NW2d 392 [Minn 2001]); State v Grantham (224 SC 41, 77 SE2d 291 [1953]). But see Cooper v United States (512 A2d 1002, 1006 [DC 1986]); State v Gartland (149 NJ 456, 694 A2d 564, 569 [1997]); State v Warren (147 NH 567, 568-569, 794 A2d 790, 792 [2002]). See generally Etheredge, The Castle Doctrine: Extension of the Rule to Co-Inhabitants, 52 Fla L Rev 695 (2000); Wheatcroft, Duty to Retreat for Cohabitants—In New Jersey a Battered Spouse’s Home is Not Her Castle (30 Rutgers LJ 539 [1999]); Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense (86 Marq L Rev 653 [2003]). For a comprehensive catalog of cases, see Annotation, Homicide: Duty to Retreat Where Assailant and Assailed Share the Same Living Quarters (67 ALR5th 637).


author: G.B. Smith, J.

text:
    [821 NE2d 935, 788 NYS2d 631]
    In the Matter of Francisco Felix, Respondent, v New York City Department of Citywide Administrative Services et al., Appellants.
    Argued October 19, 2004;
    decided November 30, 2004

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Sharyn Rootenberg and Larry A. Sonnenshein of counsel), for appellants.
    I. The City of New York had the constitutional and statutory power to enact Administrative Code of the City of New York § 12-120, which imposes a residency requirement both as a condition precedent to city employment and as a qualification for continued employment. (McCarthy v Philadelphia Civ. Serv. Commn., 424 US 645; Lorenz v Logue, 611 F2d 421; Wardwell v Board of Educ. of City School Dist. of City of Cincinnati, 529 F2d 625; Winkler v Spinnato, 72 NY2d 402; Wright v City of Jackson, Miss., 506 F2d 900; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85.) II. Administrative Code of the City of New York § 12-120 does not conflict with any state statute. Therefore, where respondent forfeited his position by operation of local law and his subsequent dismissal was not imposed as a discretionary disciplinary penalty, the lower courts erred in holding that respondent was entitled to a disciplinary hearing under Civil Service Law § 75. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Matter of Giliforte v City of Buffalo, 54 AD2d 170; Matter of Economico v Village of Pelham, 50 NY2d 120; Board of Regents of State Colls. v Roth, 408 US 564; Mandelkern v City of Buffalo, 64 AD2d 279; DeFranks v City of Buffalo, 248 AD2d 992; Ivey v State of New York, 80 NY2d 474; Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; People v Newman, 32 NY2d 379, 414 US 1163; Alweis v Evans, 69 NY2d 199.) III. The Department Advocate’s determination that respondent was no longer qualified for employment based upon his violation of the residency rule was neither arbitrary or capricious nor in violation of his rights under the law. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Clancy-Cullen Stor. Co. v Board of Elections, 98 AD2d 635\ Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Collins v Codd, 38 NY2d 269; Matter of Stork Rest, v Boland, 282 NY 256; Matter of Pesante v Abate, 211 AD2d 504.)

      Kennedy, Schwartz & Cure, P.C., New York City (Stuart Lichten of counsel), for respondent.
    A municipality may not dismiss a tenured employee except after a hearing upon stated charges. (Matter of Seeley v Stevens, 190 NY 158; Matter of Morris v Neider, 259 App Div 49; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Heckt v City of Lackawanna, 44 AD2d 763; Matter of Verbeeck v Board of Educ., Shoreham-Wading Riv. Cent. School Dist., 118 AD2d 784; Matter of Emerman v Nathan, 34 AD2d 282; Matter of Papasidero v Fasano, 19 NY2d 440; Matter of Wolff v Hodson, 285 NY 197; Matter of Bailey v Susquehanna Val. Cent. School Dist. Bd. of Educ., 276 AD2d 963; Matter of Borrell v County of Genesee, 73 AD2d 386.)

      Joel Giller, New York City, and Kim Hsueh for District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, amicus curiae.
    I. Appellants’ practice of terminating employees for alleged residency violations without a Civil Service Law § 75 hearing poses a great risk of erroneous deprivation of a vested property right. (United States v James Daniel Good Real Prop., 510 US 43.) II. The essential principle derived from the Civil Service Law is that due process is required before a tenured civil servant can be removed. III. The requirement of compliance with Civil Service Law § 75 for alleged residency violations serves public policy and the rationale of the residency requirement. (Matter of Seeley v Stevens, 190 NY 158.) IV Section 75 of the Civil Service Law preempts any municipal law. (Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 NY2d 761; Vatore v Commissioner of Consumer Affairs, 83 NY2d 645.) V Appellants’ reliance on the Fourth Department’s decision in Mandelkern v City of Buffalo (64 AD2d 279 [1978]) is misplaced. (Rawstorne v Maguire, 265 NY 204; Matter of Markowitz v Gumbs, 122 AD2d 906; Matter of Hosley v Curry, 85 NY2d 447; Matter of Newcomb, 192 NY 238; Matter of Ziehm v City of Buffalo, 90 AD2d 677, 59 NY2d 757.) VI. The Administrative Code of the City of New York’s provision for forfeiture of employment supports the fact that employees may not be summarily terminated without due process. (United States v James Daniel Good Real Prop., 510 US 43; Mathews v Eldridge, 424 US 319; Matter of Duffy v Ward, 81 NY2d 127.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue before this Court is whether a person employed by the municipality of New York City, with permanent, civil service status, can be deemed to have forfeited his employment after failing to establish his city residency following notice of and an opportunity to contest the claimed nonresidency. We conclude that failure to establish residency is a violation of the City’s residency requirement, which results in forfeiture of employment, and is not misconduct that would entitle the employee to a preremoval hearing.

On July 30, 1986, Edward I. Koch, then Mayor of the City of New York, signed into law a bill, sponsored at his request by members of the City Council of New York City, that required all nonuniformed employees in mayoral agencies, hired on or after September 1, 1986, to establish and maintain residence within the five boroughs of New York City as a condition of employment (see Transcript of Stenographic Record of Public Hearing on Local Laws [Koch], July 30,1986, at 1-6, Mayoral Bill Jacket, Local Law No. 40 [1986]). Prior to signing the bill into law, Mayor Koch specifically stated that “[flailure to establish or maintain City residence will constitute forfeiture of employment” (Transcript of Stenographic Record of Public Hearing on Local Laws [Koch], July 30,1986, at 2). Local Law No. 40 (1986) of the City of New York, the law in question, amended sections 12-119, 12-120 and 12-121 of the Administrative Code of the City of New York. New York City Administrative Code § 12-120, as amended, provides:

“Except as otherwise provided in section 12-121, any person who enters city service on or after September first nineteen hundred eighty-six (i) shall be a resident of the city on the date that he or she enters city service or shall establish city residence within ninety days after such date and (ii) shall thereafter maintain city residence as a condition of employment. Failure to establish or maintain city residence as required by this section shall constitute a forfeiture of employment; provided, however, that prior to dismissal for failure to establish or maintain city residence an employee shall be given notice of and the opportunity to contest the charge that his or her residence is outside the city.”

Even those employees who benefit from the protections of Civil Service Law § 75 are subject to New York City’s residency requirement.

In August 1993, respondent Felix was hired by appellant New York City Department of Citywide Administrative Services (DCAS) and permanently appointed to the competitive class position of high pressure plant tender. Accordingly, Felix’s employment was subject both to New York City Administrative Code § 12-120 and to Civil Service Law § 75. Moreover, in connection with his employment, on or about August 15, 1993, Felix completed, signed, swore to and had notarized a residency form in which he acknowledged that his employment was conditioned on maintaining residence in New York City and that if he failed to remain a New York City resident, he could forfeit his employment.

Approximately nine years after Felix’s appointment, DCAS began to suspect that Felix resided in Nassau County, in violation of New York City’s residency requirement. In a memorandum, DCAS informed Felix of its suspicion, and directed Felix to attend a meeting on January 23, 2002, at which time he would have an opportunity to contest the allegation. The memorandum stated that if Felix planned to contest the allegation, he should bring documentation demonstrating his New York City residency including deeds and leases for real property, utility bills, his driver’s license and vehicle registration, voter registration cards and federal and state tax returns. The memorandum further stated that “[t]ax returns are necessary documentation.” Felix was advised that he could bring an attorney or union representative to the meeting.

Felix appeared at the January 23 meeting with a union representative and, in accordance with DCAS procedures, was asked to produce two forms of identification. He produced a New York State driver’s license with a Corona (Queens County), New York address and an expiration date of June 3, 2004. DCAS requested additional documents regarding his residency, but Felix said that he did not bring any additional documentation with him. Felix further stated that he was not aware that he was required to be a New York City resident. DCAS then showed Felix the residency form he had completed and sworn to. In order to afford Felix the opportunity to produce additional documentation, DCAS adjourned the meeting for two days.

On January 25, 2002, the meeting reconvened and Felix again appeared with a union representative. This time, however, when asked to produce documentation to establish his place of residence, Felix submitted the following documents:

(1) a letter from his sister, dated January 23, 2002, stating that he lived with her in Flushing (Queens County), New York;
(2) a voter registration card, dated January 23, 2002;
(3) an interim driver’s license, issued on January 23, 2002;
(4) a vehicle registration card, issued on January 24, 2002;
(5) a New York State insurance identification card pertaining to an insurance policy with an effective date of January 23, 2002;
(6) a letter from Felix’s union, dated January 24, 2002, stating that according to its records, Felix resided in Kew Gardens (Queens County), New York;
(7) a delinquency notice from an out-of-state dentist’s office, dated January 24, 2002, reflecting that Felix’s address was in Flushing, New York; and
(8) a W-2 form and federal income tax return for the tax year 2000 which both indicated that Felix resided in Valley Stream (Nassau County), New York.

In a letter dated January 28, 2002, DCAS advised Felix that, based on its review of the submitted documentation, it had determined that the evidence submitted by Felix did not credibly establish that he maintained residence in New York City as required by New York City Administrative Code § 12-120. DCAS concluded that all of the documentation reflecting Felix’s residence in New York City was created after the January 23, 2002 meeting had adjourned for the sole purpose of establishing a New York City residence. Accordingly, DCAS found that Felix violated the residency requirement for his job and was deemed to have forfeited his position. He was immediately dismissed from his employment.

Felix filed a CPLR article 78 proceeding to challenge his dismissal, arguing that he was entitled to reinstatement with back pay because he was discharged without a preremoval hearing under Civil Service Law § 75 (l). Supreme Court granted Felix’s petition. The Appellate Division affirmed, and this Court granted leave to appeal.

A municipal employee must be afforded procedural due process before he or she is dismissed from employment for violating New York City’s residency requirement. Accordingly, this Court must determine two questions: first, whether Felix’s nonresidency was a forfeiture of employment or misconduct for which he was entitled to a preremoval hearing and second, did the “notice of and the opportunity to contest the charge” procedure set forth under New York City Administrative Code § 12-120 satisfy due process.

We note at the outset that the act of failing to maintain one’s residence within the municipality is separate and distinct from an act of misconduct by a municipal employee in the performance of his or her work. Failure to maintain residence renders an individual ineligible for continued municipal employment under New York City Administrative Code § 12-120, while an act of misconduct invokes Civil Service Law § 75 disciplinary procedures, including a preremoval hearing if removal of the municipal employee is contemplated (see e.g., Mandelkern v City of Buffalo, 64 AD2d 279 [4th Dept 1978]). In Mandelkern, the Appellate Division, Fourth Department held that a City of Buffalo ordinance setting forth residency requirements for city employees did not violate Civil Service Law § 75 (1). In so holding, the Court noted that residency requirements define eligibility for employment, not misconduct to which civil service protections would apply. The Court stated as follows:

“[t]he local legislation and the Civil Service Law have different purposes. The [local legislation] is designed with the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]. When so viewed, it is clear that residence is a consideration unrelated to job performance, misconduct or competency. It is a qualification of employment, . . . and a qualification which the city may impose if it chooses to do so without running afoul of the Constitution or general laws of the State. The Civil Service Law, on the other hand, prescribes the procedures for removal of a protected employee charged with delinquencies in the performance of his job. It has nothing to do with eligibility for employment” (Mandelkern, 64 AD2d at 281).

Similarly, the instant residency requirement has a different purpose than Civil Service Law § 75 (1) (see n 1 [at 501] for purpose of New York City’s residency requirement). Accordingly, the procedural due process afforded under Civil Service Law § 75 (1), i.e., a preremoval hearing, is not necessarily required for dismissals pursuant to New York City Administrative Code § 12-120 (see e.g., Mandelkern, 64 AD2d at 281; Schirmer v Town of Harrison, 1999 WL 61843, 1999 US Dist LEXIS 1292 [SD NY, Feb. 10, 1999]).

We next address the question whether the procedure itself comported with state and federal due process requirements. The instant residency requirement provides that a municipal employee “shall be given notice of and the opportunity to contest the charge that his or her residence is outside the city” (New York City Administrative Code § 12-120). To determine whether this procedure satisfied due process here, we necessarily take into account that Felix was required and/or requested to produce various documents, e.g., tax documents, driver’s license and voter registration card, in order to establish a New York City residence. Documents such as these need not be subjected to the adversarial testing of a hearing in order for the municipality to determine whether a municipal employee has established that he or she resides in New York City. The municipality need only review each document to make that determination. As such, we conclude that the “notice of and the opportunity to contest the charge” procedure set forth in New York City’s residency requirement satisfies due process.

Here, Felix was afforded the requisite due process; however, the documents he submitted did not establish that his current residence was in New York City. To the contrary, Felix submitted a driver’s license with a New York City address he later admitted was no longer current, seven documents that were clearly created after the January 23 meeting for the sole purpose of establishing that Felix’s residence was in New York City, and most significantly, two tax documents which established that Felix’s residence was outside of New York City. Thus, DCAS correctly determined that Felix forfeited his position and that dismissal was warranted.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

      . According to Mayor Koch, the residency requirement was meant to: (1) increase employment opportunities for New York City residents; (2) bolster the local economy; and (3) increase accountability of city employees and the level of concern and pride in the delivery of services to the City (see Transcript of Stenographic Record of Public Hearing on Local Laws [Koch], July 30, 1986, at 3).

      . New York City Administrative Code § 12-119 provides that “residence” means domicile, “resident” means domiciliary and the term “city service” means “service as an employee of the city or of any agency thereof other than service in a position which is exempted from municipal residence requirements pursuant to the public officers law or any other state law.”
      New York City Administrative Code § 12-121 sets forth exceptions to New York City’s residency requirement. Felix does not contend that he falls within any of the section 12-121 exceptions.

      . Felix’s residency form states, in pertinent part:
      “I, Francisco Felix, am or expect to be employed by the above agency or department on the date of appointment and in the position indicated above. I hereby certify that I reside at the above address which is in The City of New York. . . .
      “I hereby agree that I will notify the head of the above agency and the Department of Personnel of The City of New York prior to any change of residence by me or my spouse during such time as I remain employed by The City of New York. I understand that if I fail to remain a resident during the period of my employment with The City of New York I may forfeit my employment unless I have been granted an exemption from the residency requirements in accordance with the Mayoral Directive on Residence or Section 12-119 et seq. of the Administrative Code.”

      . Documents (2)-(5) indicated that Felix’s address was in Flushing, New York.

        . Civil Service Law § 75 sets forth a procedure under which certain employees, including those with permanent, civil service status, may be removed or subjected to other disciplinary action for misconduct or incompetency. Civil Service Law § 75 (1) provides, in pertinent part:

        “A person [holding a position by permanent appointment in the competitive class of the classified civil service] shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.”

      . It should be noted that Mandelkern was cited in a memorandum from the City of New York’s Law Department advising the then Deputy Mayor for Operations that New York City can enact a residency law (see Mem from City of NY Law Dept. Nov. 4, 1985, at 9, Mayoral Bill Jacket, Local Law No. 40 [1986]).

      . The United States Supreme Court has stated that “[a] procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case” (Bell v Burson, 402 US 535, 540 [1971]).


author: Graffeo, J.

text:
    [822 NE2d 339, 789 NYS2d 88]
    In the Matter of City Council of the City of Watervliet et al., Appellants, v Town Board of the Town of Colonie, Respondent.
    Argued October 13, 2004;
    decided December 2, 2004

      POINTS OF COUNSEL

      DiMarco & Riley, Rochester {Eugene Van Voorhis, Anne Dy-ring Riley and. John P. Amuso of counsel), and Joseph F. Monaghan, City Attorney, Watervliet, for appellants.
    I. Holding a public hearing under General Municipal Law § 705 is not an “action” within the meaning of article 8 of the Environmental Conservation Law requiring state environmental quality review. (Programming & Sys. v New York State Urban Dev. Corp., 93 AD2d 733, 61 NY2d 738; Matter of Mayerat v Town Bd. of Town of Ashford, 185 AD2d 699; Housing Justice Campaign v Koch, 164 AD2d 656.) II. Municipal annexation proceedings and procedures are established by the Legislature through General Municipal Law article 17, which was enacted pursuant to constitutional mandate under article IX, § 1 (d) of the New York State Constitution and may not be materially amended or changed by regulations of the Commissioner of Environmental Conservation. (Matter of Connell v Town Bd. of Town of Wilmington, 113 AD2d 359, 67 NY2d 896; Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796; Matter of Common Council of City of Albany v Town Bd. of Town of Bethlehem, 23 AD2d 381, 17 NY2d 594; Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 27 NY2d 369; Mayor of Vil. of Mount Kisco v Supervisor of Town of Bedford, 45 NY2d 335; Matter of Settco, LLC v New York State

      Urban Dev. Corp., 305 AD2d 1026; Matter of Cerro v Town of Kingsbury, 250 AD2d 978; Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398; Matter of Abate v City of Yonkers, 264 AD2d 517; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390.) III. The Appellate Division’s reliance on the SEQR Handbook regarding municipal annexations is totally at odds with the will of the people in adopting article IX, § 1 (d) of the New York State Constitution and the legislative intent of General Municipal Law article 17 to provide an impartial process to determine the overall public interest in municipal annexations. (Matter of Rochester Tel. Mobile Communications v Ober, 251 AD2d 1053; Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920; Matter of Merson v McNally, 90 NY2d 742; Matter of Kahn v Pasnik, 90 NY2d 569; Akpan v Koch, 75 NY2d 561; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Gordon v Rush, 100 NY2d 236; Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 27 NY2d 369; Mayor of Vil. of Mount Kisco v Supervisor of Town of Bedford, 45 NY2d 335.) IV If state environmental quality review be applicable to municipal annexations, then the environmental review should be conducted by the referees as lead agency (especially in view of the quasi-legislative role of the Appellate Division under General Municipal Law § 712) in order to preserve the impartiality of the process. (Matter of Mayer at v Town Bd. of Town of Ashford, 185 AD2d 699; Matter of Common Council of City of Albany v Town Bd. of Town of Bethlehem, 23 AD2d 381, 17 NY2d 594; Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 27 NY2d 369; Mayor of Vil. of Mount Kisco v Supervisor of Town of Bed-ford, 45 NY2d 335.) V New York courts have been reluctant to halt annexation proceedings for alleged lack of full state environmental quality review compliance where no specific or definitive plans for development have been put forward. (Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796; Programming & Sys. v New York State Urban Dev. Corp., 93 AD2d 733, 61 NY2d 738; Matter of People for Westpride v Board of Estimate of City ofN.Y., 165 AD2d 555; O’Keeffe v Bonelli, 170 Misc 2d 218; Matter of David’s Lane—Pondview Preserv. Assn. v Planning Bd. of Inc. Vil. of E. Hampton, 216 AD2d 389; Hudson Riv. Sloop Clearwater v Cuomo, 222 AD2d 386; Matter of City of Yonkers v County of Westchester, 183 AD2d 823; Matter of Board of Trustees of Vil. of Spring Val. v Town of Clarkstown, 292 AD2d 450; Matter of Incorporated Vil. of Ilion v

      Town Bd. of Frankfort, 261 AD2d 952; Matter of Taxpayers Opposed to Floodmart v City of Hornell Indus. Dev. Agency, 212 AD2d 958.) VI. If lack of state environmental quality review were to render the initial annexation petition legally defective, such defect should have been dealt with under General Municipal Law § 711 (3) through CPLR article 78. (Matter of City Council of City of Saratoga Springs v Town Bd. of Town of Greenfield, 29 AD2d 167.) VII. If state environmental quality review be applicable to municipal annexations, then appellants should have the right to cure without stopping the proceedings under General Municipal Law § 712. (Matter of City of Gloversville v Town of Johnstown, 210 AD2d 760; Matter of Weinstein Enters, v Town of Kent, 171 AD2d 874.)

      Arnis Zilgme, Town Attorney, Newtonville (Danielle M. DeMers of counsel), for respondent.
    I. State Environmental Quality Review Act (SEQRA) review is required within the context of an annexation proceeding and appellants’ assertion that SE-QRA does not apply to annexation proceedings is contrary to law. (Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920; Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796; Matter of Connell v Town Bd. of Town of Wilmington, 113 AD2d 359, 67 NY2d 896; Matter of Village of Saugerties v Town of Saugerties, 201 AD2d 52; Matter of City of Gloversville v Town of Johnstown, 210 AD2d 760; Matter of Taxpayers Opposed to Floodmart v City of Hornell Indus. Dev. Agency, 212 AD2d 958; O’Keeffe v Bonelli, 170 Misc 2d 218; Common Council of City of Middletown v Town Bd. of Town of Wallkill, 143 AD2d 215; Matter of New York State Lawncare Assn. v County of Albany, 292 AD2d 719; Programming & Sys. v New York State Urban Dev. Corp., 93 AD2d 733, 61 NY2d 738.) II. The court below did not hold that the joint hearing under General Municipal Law § 705 was an “action” for purposes of the State Environmental Quality Review Act. (Matter of Taxpayers Opposed to Floodmart v City of Hornell Indus. Dev. Agency, 212 AD2d 958, 85 NY2d 812; Matter of Programming & Sys. v New York State Urban Dev. Corp., 61 NY2d 738; Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796.) III. The Appellate Division cannot act as lead agency for State Environmental Quality Review Act compliance in an annexation proceeding. (Matter of Tri-County Taxpayers Assn, v Town Bd. of Town of Queensbury, 55 NY2d 41; Matter of Village of Saugerties v Town of Saugerties, 201 AD2d 52; Matter of City Council of City of Saratoga Springs v Town Bd. of Town of Greenfield, 29 AD2d 167.) IV Noncomplianee with the State Environmental Quality Review Act does not render the annexation petition itself legally insufficient and as such respondent was not precluded from bringing a motion to dismiss on this issue. (Matter of City Council of City of Saratoga Springs v Town Bd. of Town of Greenfield, 29 AD2d 167; Matter of Village of Saugerties v Town of Saugerties, 201 AD2d 52.) V The State Environmental Quality Review Act requires “literal compliance” and as such appellants cannot now cure after the fact. (Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341; Matter of City of Gloversville v Town of Johnstown, 210 AD2d 760.)

      Eliot Spitzer, Attorney General, Albany (Peter Lehner, Caitlin J. Halligan, Daniel Smirlock, Denise Hartman, John J. Sipos, James Tierney and Philip M. Bein of counsel), for New York State Department of Environmental Conservation, amicus curiae.
    I. Annexation of territory by a municipality is subject to the State Environmental Quality Review Act. (Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920, 93 NY2d 815; Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337; Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 165 AD2d 578, 79 NY2d 373; Stop-The-Barge v Cahill, 1 NY3d 218; Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367; New York SMSA Ltd. Partnership v Town of Riverhead Town Bd., 118 F Supp 2d 333; East Hampton Airport Prop. Owners Assn., Inc. v Town Bd. of E. Hampton, 72 F Supp 2d 139; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Stettine v County of Suffolk, 66 NY2d 354.) II. The Department of Environmental Conservation properly classifies annexation decisions as subject to State Environmental Quality Review Act. (Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796; Matter of Taxpayers Opposed to Floodmart v City of Hornell Indus. Dev. Agency, 212 AD2d 958, 85 NY2d 812; O’Keeffe v Bonelli, 170 Misc 2d 218; Matter of Young v Board of Trustees of Vil. of Blasdell, 221 AD2d 975; Matter of New Scotland Ave. Neighborhood Assn. v Planning Bd. of City of Albany, 142 AD2d 257; Ginsburg Dev. Corp. v Town Bd. of Town of Cortlandt, 150 Misc 2d 24; Matter of Neville v Koch, 79 NY2d 416; Matter of Brew v Hess, 124 AD2d 962; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 66 NY2d 896; Matter of

      Argyle Conservation League v Town of Argyle, 223 AD2d 796.) III. Environmental review should have been completed before the City Council of the City of Watervliet’s approval of annexation. (Stop-The-Barge v Cahill, 1 NY3d 218; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367; Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 165 AD2d 578; Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41; Matter of Schultz v Jorling, 164 AD2d 252, 77 NY2d 810; Matter of Taxpayers Opposed to Floodmart v City of Hornell Indus. Dev. Agency, 212 AD2d 958; Matter of Brew v Hess, 124 AD2d 962; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868; Matter of Argyle Conservation League v Town of Argyle, 223 AD2d 796; Matter of Programming & Sys. v New York State Dept. of Urban Dev. Corp., 61 NY2d 738.)
   OPINION OF THE COURT

Graffeo, J.

We are asked in this case whether State Environmental Quality Review Act (SEQRA) review is required before a municipality adopts a resolution approving the annexation of real property from an adjacent municipality. We conclude that SEQRA requirements apply to all annexations under article 17 of the General Municipal Law, but that the extent of environmental assessment that must be undertaken is dependent on the specific development plans associated with the transfer of territory.

When a municipality seeks to acquire territory that lies within the boundaries of an adjacent municipality, article 17 of the General Municipal Law—known as the Municipal Annexation Law—sets forth the public interest concerns that must be weighed and the requisite procedural steps to be followed. Generally, a proposed annexation is initiated by a petition signed by either 20% of the persons residing within the territory who are qualified to vote or by the owners of a majority of the assessed valuation of land in the area proposed to be transferred (see General Municipal Law § 703). Upon notice to the public and affected residents, the governing boards of the affected municipalities conduct a joint public hearing on the issue whether the annexation is in the overall public interest (see General Municipal Law §§ 704, 705). Within 90 days after the hearing, the governing board of each locality must adopt a resolution and issue a written order regarding whether annexation is in the overall public interest (see General Municipal Law § 711). In the event the local governments disagree, application may be made to the appropriate Appellate Division department to determine whether the proposed annexation is in the overall public interest (see General Municipal Law § 712).

In this case, petitioner East-West Realty Corporation is the owner of approximately 37 acres of vacant property located in the Town of Colonie and adjacent to the City of Watervliet. The property is currently zoned to permit single family residences. East-West inquired of the Town about the possibility of constructing a senior citizen assisted-living development at the site and claims that the informal response from the Town was unfavorable. East-West then filed a petition with respondent Town Board of the Town of Colonie and petitioner City Council of the City of Watervliet seeking to have approximately 43 acres, including its 37 acres, transferred by annexation to Watervliet in accordance with article 17 of the General Municipal Law.

In December 2002, Colonie and Watervliet held a joint public hearing on the petition. East-West did not present a formal development plan, but indicated “the property is proposed to be developed as potentially assisted living senior apartments.” Watervliet subsequently passed a resolution approving of the annexation and declaring the transfer of realty to be in the overall public interest. Colonie meanwhile adopted a resolution denying the petition on the ground that annexation was not in the overall public interest. Colonie took the position that review of potential environmental impact under SEQRA was necessary to fully assess whether annexation was in the public interest.

Faced with conflicting municipal resolutions, Watervliet commenced this proceeding in the Appellate Division, and East-West intervened as a petitioner. In its answer and by motion to dismiss the amended petition, Colonie asserted that Watervliet failed to comply with SEQRA requirements prior to approving the proposed annexation. East-West cross-moved for an order appointing three referees to hear and report to the Court. The Appellate Division dismissed the petition and agreed with Colonie to the extent it held that “an appropriate form of SEQRA review of an annexation ‘action’ is required” before either municipality could adopt a resolution regarding the annexation (309 AD2d 1114, 1116 [2003]). We granted Watervliet and East-West leave to appeal and now affirm.

SEQRA’s primary purpose “is to inject environmental considerations directly into governmental decision making” (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674, 679 [1988]). The Legislature’s intent is reflected in the statute, which requires that “[s]ocial, economic, and environmental factors [ ] be considered together in reaching decisions on proposed activities” (ECL 8-0103 [7]). The procedures necessary to fulfill SEQRA review are carefully detailed in the statute and its implementing regulations (see ECL 8-0101—8-0117; 6 NYCRR part 617; see also Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337, 347-348 [2003]), and we have recognized the need for strict compliance with SEQRA requirements (Matter of Merson v McNally, 90 NY2d 742, 750 [1997]).

In this case, Watervliet and East-West initially argue that SE-QRA does not apply to municipal annexations because article 17 of the General Municipal Law, which does not incorporate SE-QRA explicitly, provides the exclusive process for annexations. They also contend that General Municipal Law § 718 (5) indicates that “[t]he provisions of [article 17] shall be controlling notwithstanding any inconsistent act of the legislature to the contrary,” and therefore article 17 exempts annexations from SEQRA. We conclude, however, that SEQRA is neither inconsistent with nor contrary to the procedures delineated in the General Municipal Law.

It is well established that SEQRA “is a law of general applicability” {Matter of Sour Mtn. Realty, Inc. v New York State Dept. ofEnvtl. Conservation, 260 AD2d 920, 923 [1999], Iv denied 93 NY2d 815 [1999]). Moreover, the Legislature has declared “that ‘to the fullest extent possible’ statutes should be administered by the State and its political subdivisions in accordance with the policies set forth in SEQRA and that environmental factors should be considered in reaching decisions on proposed projects” (Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41, 46 [1982] [quoting ECL 8-0103 (6)]). The overriding goal of article 17 of the General Municipal Law is to assess whether a proposed annexation is in the best interest of the public. After a joint hearing predicated upon a petition for annexation is held (see General Municipal Law § 705), each municipality must, within 90 days of the hearing, decide whether annexation is in the “over-all public interest” (General Municipal Law § 711 [1]). Where the involved municipalities disagree on whether annexation is in the public’s best interest—as happened in this case—the Appellate Division may be called upon to consider “whether the proposed annexation is in the over-all public interest” (General Municipal Law § 712 [1], [10]). The aims of SEQRA are congruous—the objective is to determine “ ‘whether or not a project or activity should be approved or undertaken in the best over-all interest of the people of the State’ ” (Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373, 380 [1992], quoting Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 222 [1980]). We believe that SEQRA promotes, rather than undermines, the public interest purposes of article 17 of the General Municipal Law and therefore conclude that General Municipal Law § 718 (5) does not exempt the annexation process from SEQRA review.

Watervliet and East-West further submit that SEQRA review is not required because annexation, in and of itself, is not an “action” as defined in article 8 of the Environmental Conservation Law. They contend that a proposed annexation must be accompanied by a specific development plan before SEQRA is triggered. Because East-West has no definite plans for the site and has not filed any formal application for development of its property, they claim that any SEQRA analysis is premature. We disagree.

Article 8 of the Environmental Conservation Law creates the procedural and substantive requirements for governmental entities to follow when reviewing the environmental consequences of proposed projects or “actions” (see Matter of WEOK Broadcasting Corp., 79 NY2d at 381). “Action” is a term of art in the SEQRA statute and is broadly defined to include:

“(i) projects or activities directly undertaken by any agency; or projects or activities supported in whole or part through contracts, grants, subsidies, loans, or other forms of funding assistance from one or more agencies; or projects or activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use or permission to act by one or more agencies; [and]
“(ii) policy, regulations, and procedure-making” (ECL 8-0105 [4]).

Pursuant to its authority under section 8-0113 of the Environmental Conservation Law, the New York State Department of Environmental Conservation (DEC) has promulgated regulations that refine the definition of “actions” for SEQRA purposes. For example, under DEC’s regulations, “actions” include “agency planning and policy making activities that may affect the environment and commit the agency to a definite course of future decisions” and the “adoption of agency rules, regulations and procedures, including local laws, codes, ordinances, executive orders and resolutions that may affect the environment” (6 NYCRR 617.2 [b] [2], [3]).

In 1987, apparently in response to Matter of Connell v Town Bd. of Town of Wilmington (113 AD2d 359 [1985], affd 67 NY2d 896 [1986]), DEC amended its regulations to clarify that the annexation of 100 or more contiguous acres constitutes a Type I action (see 6 NYCRR 617.4 [b] [4]). In doing so, DEC implicitly determined that an annexation of less than 100 acres is an “unlisted action” (see Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796, 797 [1988]; SEQR Handbook, at 105 [1992 ed]).

In urging that a proposed annexation, absent a formal development project, cannot be an “action” for SEQRA purposes, Watervliet and East-West in effect assert that DEC’s regulation is invalid. Because DEC is entitled to deference in its construction and application of environmental conservation statutes, our standard of review is limited to whether DEC’s interpretation is unreasonable or irrational (see Matter of Rodriguez v Perales, 86 NY2d 361, 367 [1995]; Matter of Astoria Generating Co. v General Counsel of N.Y. State Dept. of Envtl. Conservation, 299 AD2d 706, 707 [2002]).

We cannot say that DEC’s classification of annexations as actions subject to SEQRA is unreasonable. Annexations are often the first step toward the development of real property and may involve a change in municipal services or land use regulation. A principal goal of SEQRA is “to incorporate environmental considerations into the decisionmaking process at the earliest opportunity” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see also 6 NYCRR 617.1 [c]). Based on SEQRA’s broad definition of “actions,” which should be liberally construed to facilitate SEQRA’s salutary purposes, it is not irrational to require SEQRA review of annexations while municipalities contemplate the ramifications of an annexation proposal.

Matter of Programming & Sys. v New York State Urban Dev. Corp. (61 NY2d 738 [1984]) does not dictate a contrary result. In that case, the Urban Development Corporation (UDC) had been involved with the City of New York in attempting to redevelop a neighborhood surrounding a building leased by the petitioner. The petitioner, whose lease would be terminated without compensation in the event of an eminent domain proceeding, commenced a proceeding against the UDC, alleging that before it could proceed any further, the UDC had to prepare and file an environmental impact statement. The UDC countered that any redevelopment in the area was still in the planning stage and therefore such environmental review was not required. We affirmed the dismissal of the petition, holding that although the UDC had taken preliminary steps in its redevelopment plan, “an environmental impact statement is not required until a specific project plan for the development is actually formulated and proposed” {id. at 739).

Programming is distinguishable for three reasons. First, although East-West’s tenuous plans may be analogous to the lack of a definite project plan in Programming, this case involves a specific request for governmental action—approval of an annexation proposal. Second, unlike Programming, a DEC regulation designates the proposed governmental activity at issue as an “action” for purposes of SEQRA application. Finally, whereas the particular issue in Programming was whether an environmental impact statement was necessary, the issue here is whether any form of SEQRA review is required.

Having concluded that SEQRA applies to municipal annexations in general, we next address the appropriate extent or level of environmental review applicable to the proposed annexation before us. DEC’S regulations contemplate two types of environmental review: the environmental assessment form (EAF) and the environmental impact statement (EIS). All “actions” subject to SEQRA (i.e., Type I and unlisted actions) initially require the preparation of an EAF, whose purpose is to aid an agency “in determining the environmental significance or nonsignificance of actions” (6 NYCRR 617.2 [m]; see also 617.6 [a] [2], [3]). After reviewing the EAF, if the lead agency (which can be a designated municipality) determines “that the action may include the potential for at least one significant adverse environmental impact,” a positive declaration must be issued and completion of an EIS becomes necessary (6 NYCRR 617.7 [a] [1]; see also ECL 8-0109 [2]). The EIS is a more comprehensive evaluation of environmental impact. Conversely, an EIS will not be required and the agency may issue a negative declaration where it concludes “that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant” (6 NYCRR 617.7 [a] [2]). Thus, “[w]hile an EAF is used to determine significance or nonsignificance, the purpose of an EIS is to examine the identified potentially significant environmental impacts which may result from a project” (Matter of Merson, 90 NY2d at 751).

Here, because the proposed annexation of approximately 43 acres is an unlisted action, an EAF is appropriate and must be completed before Watervliet or Colonie acts to adopt or reject the petition for annexation. Since the annexation proposal lacks a specific project plan that has been officially submitted or a rezoning proposal that changes the use for which the property may be utilized, the EAF will necessarily be limited to the annexation itself and its effects. Where, on the other hand, an annexation is premised upon a formal project plan, environmental review will be more extensive and must address the specific use of the property in evaluating the related environmental effects (see Programming, 61 NY2d at 739; see also Cross Westchester Dev. Corp., 141 AD2d at 797).

We have considered Watervliet’s and East-West’s remaining arguments and found them to be without merit.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order affirmed, with costs.

      . “Annexation” is defined as “[a]n alteration of the boundaries of a county, city, town or village which has the effect of adding territory to it. Such term shall not include the creation or dissolution of a county, city, town or village, or the consolidation of two or more counties, two or more cities, two or more towns or two or more villages, respectively, or the diminution of the area of a village pursuant to section 18-1804 of the village law” (General Municipal Law § 701 [1]).

      . If the municipalities agree, “such determination shall be final and conclusive” (General Municipal Law § 711 [4]).

      . The premises affected by the annexation petition consists of several parcels: 36.6 acres owned by East-West, 2.8 acres owned by Rait Highland Club, LLC and a 3.8 acre Niagara Mohawk utility corridor. The latter two owners are not parties to this proceeding.

      . We agree with the Appellate Division that Colonie properly raised the SEQRA issue as an affirmative defense in its answer to the petition. Because Colonie served the answer within four months of Watervliet’s adoption of its resolution approving the annexation, the objection was timely (see CPLR 217).

      . Notably, article 17 of the General Municipal Law was enacted in 1963 (see L 1963, ch 844), 12 years before SEQRA was adopted in 1975 (see L 1975, ch 612).

      . SEQRA also specifies that “ ‘[actions’ do not include:
      “(i) enforcement proceedings or the exercise of prosecutorial discretion in determining whether or not to institute such proceedings;
      “(ii) official acts of a ministerial nature, involving no exercise of discretion; [and]
      “(iii) maintenance or repair involving no substantial changes in existing structure or facility” (ECL 8-0105 [5]).

      . In Connell, the Appellate Division held that a municipality’s adoption of a resolution approving an annexation “was not an ‘action’ as defined by SE-QRA” and therefore SEQRA review was unnecessary (113 AD2d at 361). We affirmed on the narrow ground that the proceeding was untimely.

      . The regulations classify actions as Type I, Type II or unlisted, depending on the potential effects on the environment (.Matter of Merson v McNally, 90 NY2d 742, 750 [1997]). A Type I action “carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS [environmental impact statement]” (6 NYCRR 617.4 [a] [1]). A Type II action is not subject to SEQRA review because it has “been determined [by DEC] not to have a significant impact on the environment or [is] otherwise precluded from environmental review under Environmental Conservation Law, article 8” (6 NYCRR 617.5 [a]). Finally, all remaining actions are classified as “unlisted” actions (6 NYCRR 617.2 [ak]). Type I and unlisted actions are subject to SEQRA review, and Type I actions “are more likely to require the preparation of an EIS than Unlisted actions” (6 NYCRR 617.4 [a]).

      . Type I actions require the preparation of a “full” EAF whereas unlisted actions may use either the “full” or “short” EAF (6 NYCRR 617.6 [a] [2], [3]; see also 6 NYCRR 617.20 Appendices A, C). The agency may waive the requirement of an EAF if a draft EIS is submitted instead (6 NYCRR 617.6 [a] [4]).

      . If a lead agency decides that an EIS is necessary, a draft EIS (DEIS) must be prepared. After the agency accepts a DEIS, it must be filed with DEC and copies made available to members of the public on request (ECL 8-0109 [4]; 6 NYCRR 617.12 [b]). The agency can also conduct a public hearing on notice (6 NYCRR 617.9 [a] [4]). Unless the agency withdraws the proposed action or determines that it “will not have a significant adverse impact on the environment,” the agency must prepare a final EIS (FEIS) 45 days after any hearing or 60 days after the filing of the DEIS, whichever occurs later (6 NYCRR 617.9 [a] [5]). Before issuing final approval, the agency must consider the FEIS and make written findings that the requirements of SEQRA have been met (6 NYCRR 617.11).
      As to content, the EIS must include a description of the proposed action, its environmental impacts and any unavoidable adverse effects (ECL 8-0109 [2] [a]-[c]); “alternatives to the proposed action” (ECL 8-0109 [2] [d]), including a “no action alternative” (6 NYCRR 617.9 [b] [5] [v]); and “mitigation measures proposed to minimize the environmental impact” (ECL 8-0109 [2] [f]; see also 6 NYCRR 617.9 [b] [5] [iv]). An agency must “make an explicit finding that the requirements of [SEQRA] have been met and that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided” (ECL 8-0109 [8]; see generally Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 415-416 [1986]).

      . If annexation includes a rezoning proposal that would change the permissible use of the parcel, “environmental review may be conducted on a conceptual basis” even where no specific project is proposed because the new zoning requirements provide the parameters to conduct meaningful review (Matter of Neville, 79 NY2d at 426; see also Matter of Brew v Hess, 124 AD2d 962, 965 [1986]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]).