text:
    [36 NE3d 623, 15 NYS3d 716]
    ACE Securities Corp., Home Equity Loan Trust, Series 2006-SL2, by HSBC Bank USA, National Association, as Trustee Pursuant to a Pooling and Servicing Agreement, Dated as of March 1, 2006, Appellant, v DB Structured Products, Inc., Respondent.
    Argued April 30, 2015;
    decided June 11, 2015

      POINTS OF COUNSEL

      Bancroft PLLC, Washington, D.C. (Paul D. Clement, of the District of Columbia bar, admitted pro hac vice, Erin E.

      Murphy, of the District of Columbia Bar, admitted pro hac vice, and Stephen V. Potenza of counsel), and Kasowitz, Benson, Torres & Friedman LLP, New York City (Marc E. Kasowitz, Michael M. Fay and Zachary W. Mazin of counsel), for appellant.
    I. The cause of action for breach of the cure or repurchase obligation did not accrue until DB Structured Products, Inc. refused to cure or repurchase. (Bulova Watch Co. v Celotex Corp., 46 NY2d 606; New York Cent. Mut. Fire Ins. Co. v Glider Oil Co., Inc., 90 AD3d 1638; Aireo Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68; Meadowhrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 AD3d 820, 21 NY3d 1024; Knobel v Shaw, 90 AD3d 493; Sirico v F.G.G. Prods., Inc., 71 AD3d 429; Slamow v Del Col, 79 NY2d 1016; Beller v William Penn Life Ins. Co. of N.Y., 8 AD3d 310; Orville v Newski, Inc., 155 AD2d 799; Lehman Bros. Holdings, Inc. v National Bank of Ark., 875 F Supp 2d 911.) II. This action was timely even if the claim accrued at the time of contracting. (Greenfield v Philles Records, 98 NY2d 562; Walnut Place LLC v Countrywide Home Loans, Inc., 35 Misc 3d 1207[A], 2012 NY Slip Op 50601 [U], 96 AD3d 684; Jones v Bill, 10 NY3d 550; Bumpus v New York City Tr. Auth., 66 AD3d 26; Snay v Cohoes Mem. Hosp., 110 AD2d 1021; Burwell v Yonkers Gen. Hosp., 6 AD3d 478; HSBC Guyerzeller Bank AG v Chascona N.V., 42 AD3d 381; American Home Assur. Co. v Scanlon, 164 AD2d 751; Frankart Furniture Staten Is. v Forest Mall Assoc., 159 AD2d 322; Duffy v Horton Mem. Hosp., 66 NY2d 473.)

      Simpson Thacher & Bartlett LLP, New York City {David J. Woll and Thomas C. Rice of counsel), for respondent.
    I. Appellant’s claims accrued upon the alleged breach of the representations and warranties. (Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538; ElyCruikshank Co. v Bank of Montreal, 81 NY2d 399; Zumpano v Quinn, 6 NY3d 666; John J. Kassner & Co. v City of New York, 46 NY2d 544; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; Snyder v Town Insulation, 81 NY2d 429; Gregoire v Putnam’s Sons, 298 NY 119; ABB Indus. Sys., Inc. v Prime Tech., Inc., 120 F3d 351; West 90th Owners Corp. v Schlechter, 137 AD2d 456.) II. Appellant’s “condition precedent” arguments fail. (Continental Cas. Co. v Stronghold Ins. Co., Ltd., 77 F3d 16; Deutsche Alt-A Sec. Mtge. Loan Trust, Series 2006-OA1 v DB Structured Prods., Inc., 958 F Supp 2d 488; Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765; Rubinstein v Rubinstein, 23 NY2d 293; Robb v Low, 99 AD3d 614;
      Sutton v Burdick, 75 AD3d 884; Woodlaurel, Inc. v Wittman, 199 AD2d 497; Dickinson v Mayor of City of N.Y., 92 NY 584; Westminister Props. v Kass, 163 Misc 2d 773; John J. Kassner & Co. v City of New York, 46 NY2d 544.) III. Appellant’s policy arguments are meritless. (Greenfield v Philles Records, 98 NY2d 562; Klos v Lotnicze, 133 F3d 164; Reed v Knollwood Park Cemetery, 441 F Supp 1144; Deutsche Alt-A Sec. Mtge. Loan Trust, Series 2006-OA1 v DB Structured Prods., Inc., 958 F Supp 2d 488; Zumpano v Quinn, 6 NY3d 666; John J. Kassner & Co. v City of New York, 46 NY2d 544; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212.) IV. The two distressed debt investment funds’ summons with notice does not render this action timely. (Goldberg v Camp Mikan-Recro, 42 NY2d 1029; Batch-elder v Council Grove Water Co., 131 NY 42; Feder v Union Carbide Corp., 141 AD2d 799; Cruden v Bank of N.Y., 957 F2d 961; Walnut Place LLC v Countrywide Home Loans, Inc., 96 AD3d 684; Velez v Feinstein, 87 AD2d 309; Tomczak v Trepel, 283 AD2d 229; Reiss v Financial Performance Corp., 97 NY2d 195; Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549; Parker v Mack, 61 NY2d 114.)

      Jones & Keller, P.C., Denver, Colorado {Michael A. Rollin and Maritza Dominguez Braswell, of the Colorado bar, admitted pro hac vice, of counsel), for CXA-13 Corporation, amicus curiae.
    I. Properly viewed in its commercial context, it is clear that the cure-or-repurchase obligation was designed to continually maintain the integrity of the payment stream that lies at the heart of the transaction. (Slamow v Del Col, 79 NY2d 1016.) II. DB Structured Products, Inc.’s (DBSP) failure to perform its continuing obligation to cure or repurchase defective mortgage loans is an independent breach of contract, which claim accrues each time DBSP failed to cure or repurchase. (Bulova Watch Co. v Celotex Corp., 46 NY2d 606.) III. DB Structured Products, Inc.’s argument that a continuing cure-or-repurchase obligation would render it subject to perpetual obligations is a counterfactual scare tactic.

      McKool Smith, New York City {Gayle R. Klein, Robert W. Scheef and John C. Briody of counsel), for Association of Mortgage Investors, amicus curiae.
    I. A trustee’s cause of action accrues when the loan seller fails to cure or repurchase. (Aetna Life Cas. Co. v Nelson, 67 NY2d 169; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399; Matter of Southeast Banking Corp., 93 NY2d 178; Continental Cas. Co. v Stronghold

      Ins. Co., Ltd., 77 F3d 16; John J. Kassner & Co. v City of New York, 46 NY2d 544; Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765; Grace Indus., Inc. v New York City Dept. of Transp., 22 AD3d 262; Zere Real Estate Servs., Inc. v Parr Gen. Contr. Co., Inc., 102 AD3d 770; Craven v Rigas, 71 AD3d 1220; Julias A. Nasso & Assoc. Concrete Corp. v Trataros Constr., Inc., 79 AD3d 471.) II. The repurchase protocol is a continuing obligation and a new limitations period begins to run each time a loan seller fails to cure or repurchase. (Bulova Watch Co. v Celotex Corp., 46 NY2d 606; ElyCruikshank Co. v Bank of Montreal, 81 NY2d 399.) III. The First Department’s holding would cause severe harm to investors and the residential mortgage-backed securities capital markets. (Tobin v Grossman, 24 NY2d 609.)

      Patterson Belknap Webb & Tyler LLP, New York City (Erik Haas and Henry J. Ricardo of counsel), for Association of Financial Guaranty Insurers, amicus curiae.
    I. A claim for breach of the repurchase obligation accrues upon the sponsor’s failure to cure or repurchase. (Bulova Watch Co. v Celotex Corp., 46 NY2d 606; John J. Kassner & Co. v City of New York, 46 NY2d 544; ACE Sec. Corp. v DB Structured Prods., Inc., 112 AD3d 522.) II. Public policy favors enforcing the bargained-for risk allocation over the life of the transaction.

      Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C. (.Andrew C. Shen, David C. Frederick, Wan J. Kim, Gregory G. Rapawy and Matthew A. Seligman of counsel), and Korein Tillery LLC, Chicago, Illinois (George A. Zelcs, John Libra and Michael Klenov of counsel), for National Credit Union Administration Board, amicus curiae.
    I. DB Structured Products, Inc.’s breach of its contractual repurchase obligation is separate from its breaches of representations and warranties and accrued separately. (Bulova Watch Co. v Celotex Corp., 46 NY2d 606.) II. Contractual repurchase obligations are an important part of residential mortgage-backed securities contracts that account for purchasers’ inability to perform independent due diligence. (National Credit Union Admin. Bd. v Credit Suisse Sec. [USA] LLC, 939 F Supp 2d 1113; New Jersey Carpenters Health Fund v Royal Bank of Scotland Group, PLC, 709 F3d 109; Plumbers’ Union Local No. 12 Pension Fund v Nomura Asset Acceptance Corp., 632 F3d 762; National Credit Union Admin. Bd. v. RBS Sec., Inc., 900 F Supp 2d 1222.) III. Contractual repurchase obligations protect investors and hold residential mortgage-backed securities sponsors accountable.

      Venable LLP, Baltimore, Maryland (Gregory A. Cross, Mitchell Y. Mirviss, Colleen M. Mallon and C. Alexander Hortis of counsel), for LNR Partners, LLC and others, amici curiae.
    I. Commercial mortgage-backed securities repurchase claims raise important considerations that are not addressed in appellant’s brief. (United States Bank N.A. v Dexia Real Estate Capital Mkts., 959 F Supp 2d 443.) II. The First Department’s limitations analysis is contrary to the basic structure of mortgage-backed securities. (Resolution Trust Corp. v Key Fin. Servs., Inc., 280 F3d 12; Deutsche Alt-A Sec. Mtge. Loan Trust, Series 2006-OA1 v DB Structured Prods., Inc., 958 F Supp 2d 488; Continental Cas. Co. v Stronghold Ins. Co., Ltd., 77 F3d 16; Snyder v Town Insulation, 81 NY2d 429; Solomon R. Guggenheim Found, v Lubell, 77 NY2d 311; LaSalle Bank N.A. v Lehman Bros. Holdings, Inc., 237 F Supp 2d 618; Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765; Bulova Watch Co. v Celotex Corp., 46 NY2d 606; Assured Guar. Mun. Corp. v Flagstar Bank, FSB, 920 F Supp 2d 475; Lehman Bros. Holdings, Inc. v National Bank of Arkansas, 875 F Supp 2d 911.) III. The First Department’s analysis should not be applied to commercial mortgage-backed securities agreements. (United States Bank N.A. v Dexia Real Estate Capital Mkts., 959 F Supp 2d 443; ACE Sec. Corp. Home Equity Loan Trust, Series 2007-HE3 v DB Structured Prods., Inc., 5 F Supp 3d 543.) IV. The decision below wrongly reverses the bargained-for contractual risks and burdens in mortgage-backed securities repurchase agreements.

      Sullivan & Cromwell LLP, New York City (H. Rodgin Cohen of counsel), and Sullivan & Cromwell LLP, Washington, D.C. (Brent J. McIntosh and Jeffrey B. Wall of counsel), for Chamber of Commerce of the United States of America and another, amici curiae.
    I. The decision below provides predictability to commercial parties in the drafting and enforcement of contracts. (Matter of Southeast Banking Corp., 93 NY2d 178; Blanco v American Tel. & Tel. Co., 90 NY2d 757; Martin v Edwards Labs., Div. of Am. Hosp. Supply Corp., 60 NY2d 417; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; ElyCruikshank Co. v Bank of Montreal, 81 NY2d 399; Ackerman v Price Waterhouse, 84 NY2d 535; MRI Broadway Rental v United States Min. Prods. Co., 92 NY2d 421; Duffy v Horton Mem. Hosp., 66 NY2d 473; Menichini v Grant, 995 F2d 1224.) II. Appellant’s contrary approach would create substantial uncertainty for a wide range of commercial contracts under New York law. (Rodrigue v Olin Empls. Credit Union, 406 F3d
      434; Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765; McCoy v Feinman, 99 NY2d 295; Lehman Bros. Holdings, Inc. v Evergreen Money source Mtge. Co., 793 F Supp 2d 1189; Rodgers v Roulette Records, Inc., 677 F Supp 731; Ackerman v Price Waterhouse, 84 NY2d 535; Blanco v American Tel. & Tel. Co., 90 NY2d 757.)

      Wachtell, Lipton, Rosen & Katz, New York City (George T. Conway III, Theodore N. Mirvis, Charles D. Cording and Vladislav S. Vainberg of counsel), for Securities Industry and Financial Markets Association, amicus curiae.
    I. The trustee distorts the “basic bargain” of residential mortgage-backed securities securitizations, and wrongly treats the contracts’ sole remedy as an independent covenant of performance. (Retirement Bd. of the Policemen’s Annuity & Ben. Fund of the City of Chicago v Bank of N.Y. Mellon, 775 F3d 154; ACE Sec. Corp. Home Equity Loan Trust, Series 2007-HE3 v DB Structured Prods., Inc., 5 F Supp 3d 543; Deutsche Alt-A Sec. Mtge. Loan Trust, Series 2006-OA1 v DB Structured Prods., Inc., 958 F Supp 2d 488; Dolman v United States Trust Co. of N.Y., 2 NY2d 110; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Nussenzweig v diCorcia, 9 NY3d 184; Duffy v Horton Mem. Hosp., 66 NY2d 473; Lyles v State of New York, 3 NY3d 396; John J. Kassner & Co. v City of New York, 46 NY2d 544.) II. Overwhelming and virtually uncontradicted authority supports the Appellate Division’s decision. (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399; Varga v Credit-Suisse, 5 AD2d 289; Schmidt v Merchants Despatch Transp. Co., 270 NY 287; West 90th Owners Corp. v Schlechter, 137 AD2d 456; Varo, Inc. v Alvis PLC, 261 AD2d 262; Bulova Watch Co. v Celotex Corp., 46 NY2d 606; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; Metropolitan Life Ins. Co. v Noble Lowndes Intl., 84 NY2d 430; Walnut Place LLC v Countrywide Home Loans, Inc., 96 AD3d 684; Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765.) III. The Appellate Division’s holding is fair and serves the interests of justice. (Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Duffy v Horton Mem. Hosp., 66 NY2d 473; Bailey v Fish & Neave, 8 NY3d 523.)

      Jenner & Block LLP, Washington, D.C. (Matthew S. Heilman of counsel), and Jenner & Block LLP, New York City {Stephen L. Ascher of counsel), for Mortgage Bankers Association, amicus curiae.
    I. The trustee is demonstrably incorrect when it claims that six years from securitization is inadequate to bring repurchase claims. (Policemen’s Annuity & Benefit Fund of City of Chicago v Bank of Am., NA, 907 F Supp 2d 536; Old Colony Trust Co. v Omaha, 230 US 100.) II. An unbounded statute of limitations would have severe policy consequences and impose undue burdens on the housing market and beyond. (Riddlesbarger v Hartford Ins. Co., 74 US 386; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.)

      Steven L. Schwarcz, Duke Law School, Durham, North Carolina, amicus curiae.
    I. Securitization is designed to transfer the future risk on the underlying loans from the seller to the investors. II. Plaintiff vastly overstates the importance of an enlarged limitations period to investors in mortgage-backed securities. III. Six years from a loan’s sale is ample time to bring a repurchase claim. IV. Sellers and investors reasonably understood New York’s statute of limitations to bar repurchase claims filed six years after the loan sale.

      Ethan J. Leib, Fordham Law School, New York City, and Patrick M. Connors, Albany Law School, for Ethan J. Leib, and others, amici curiae.
    I. New York contract law has a motivating policy preferring certainty, predictability, and finality — and the law governing the statute of limitations contributes to these objectives. (IRB-Brasil Resseguros, S.A. v Inepar Invs., S.A., 20 NY3d 310; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Toussie v United States, 397 US 112; Railroad Telegraphers v Railway Express Agency, Inc., 321 US 342; Burnett v New York Central R. Co., 380 US 424; John J. Kassner & Co. v City of New York, 46 NY2d 544; Bayridge Air Rights v Blitman Constr. Corp., 80 NY2d 777; Lehman XS Trust, Series 2006-4N ex rel. U.S. Bank N.A. v Greenpoint Mtge. Funding, Inc., 991 F Supp 2d 472; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399.) II. New York develops clear and precise rules for how to approach the statute of limitations for breach of contract actions. (West 90th Owners Corp. v Schlechter, 137 AD2d 456; Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765; Bulova Watch Co. v Celotex Corp., 46 NY2d 606; American Trading Co. v Fish, 42 NY2d 20; Imperia v Marvin Windows of N.Y., 297 AD2d 621; Continental Cas. Co. v Stronghold Ins. Co., Ltd., 77 F3d 16.) III. The cure, substitute, or repurchase remedial provisions in the agreements are not express guarantees of future performance or “separate undertakings” that give rise to separate claims under New York law.

      Keller Rohrback L.L.P. (Derek W. Loeser, admitted to the Washington bar, pro hac vice, of counsel), and Keller Rohrback L.L.P., New York City (David S. Preminger of counsel), for Federal Home Loan Bank of Boston and others, amici curiae.
    I. Because private-label residential mortgage-backed securities were mostly purchased for long-term, conservative investment, investors reasonably expected that the cure-or-repurchase covenant would continue through the life of the investment. II. A decision that the cure-or-repurchase obligation lapses after only six years would cause wide-ranging harm to the recovering economy.
   OPINION OF THE COURT

Read, J.

This appeal stems from a transaction involving residential mortgage-backed securities (RMBS). Two certificateholders in the ACE Securities Corp., Home Equity Loan Trust, Series 2006-SL2 (the Trust) sued DB Structured Products, Inc. (DBSP), the sponsor of the transaction, for failure to repurchase loans that allegedly did not conform to DBSP’s representations and warranties. The Trust later sought to substitute itself as plaintiff in place of the certificateholders. The parties dispute the timeliness of this lawsuit, whether the certificateholders or the Trust complied with a condition precedent and whether the certificateholders possessed standing to sue or, alternatively, the Trust’s complaint cured any defect in the certificateholders’ standing. We hold that the Trust’s cause of action against DBSP for breach of representations and warranties accrued at the point of contract execution on March 28, 2006. Where, as in this case, representations and warranties concern the characteristics of their subject as of the date they are made, they are breached, if at all, on that date; DBSP’s refusal to repurchase the allegedly defective mortgages did not give rise to a separate cause of action. Additionally, we hold that, even assuming standing, the two certificateholders did not validly commence this action because they failed to comply with the contractual condition precedent to suit; namely, affording DBSP 60 days to cure and 90 days to repurchase from the date of notice of the alleged non-conforming loans.

L

In its role as sponsor of the securitization that is at the core of this case, DBSP purchased 8,815 mortgage loans from at least three third-party mortgage originators. This pool of loans was sold to an affiliate, ACE Securities Corp. (ACE), a securitization conduit known as a “depositor,” pursuant to a mortgage loan purchase agreement (MLPA) executed between DBSP and ACE. ACE then transferred the loans and its rights under the MLPA to the Trust, pursuant to a pooling and servicing agreement (PSA). The parties to the PSA were ACE, as depositor, OCWEN Loan Servicing, LLC (Ocwen), as servicer, Wells Fargo Bank, National Association (Wells Fargo), as master servicer and securities administrator, and HSBC Bank USA, National Association, as trustee (HSBC or the trustee). DBSP was not a party or signatory to the PSA except for two sections not relevant to this appeal; its role was effectively complete at closing, when it transferred (via ACE) its “right, title and interest in, to and under the Mortgage Loans” and the “contents of the related Mortgage File” to the trustee and its agents. The MLPA and PSA were executed on the same day, March 28, 2006.

HSBC acted as trustee for the holders of $500 million in certificates issued by the Trust, and was authorized to bring suit on the Trust’s behalf. The individual mortgage loans served as collateral for the certificates, which paid principal and interest to certificateholders from the cash flow generated by the mortgage loan pool; that is, certificateholders made money when the borrowers made payments on their loans.

DBSP made over 50 representations and warranties in the MLPA regarding the credit quality and characteristics of the pooled loans “as of the Closing date,” March 28, 2006. The MLPA permitted the Trust to examine each mortgage loan file and exclude from the final pool any loans that did not comply with DBSP’s representations and warranties. But the MLPA also relieved the Trust and certificateholders from any obligation to verify DBSP’s representations and warranties, or to conduct due diligence on the loan characteristics. Importantly, the Trust’s “sole remedy” in the event DBSP “breach[ed] . . . any of the representations and warranties contained in” the MLPA was for DBSP to cure or repurchase a non-conforming loan.

The PSA authorized the trustee to enforce the repurchase obligation in the following way. First, if HSBC learned of a breach of a representation or warranty, it was required to “promptly notify [DBSP] and the Servicer” of the breach and request that DBSP cure the identified defect or breach within 60 days. In the event DBSP failed to cure the defect or breach in all material respects, the trustee was empowered to “enforce the obligations of [DBSP] under the [MLPA] to repurchase such Mortgage Loan . . . within ninety (90) days after the date on which [DBSP] was notified of [the breach].” Finally, as relevant here, the PSA authorized certificateholders entitled to at least 25% of voting rights to enforce certain default events if the trustee refused or neglected to institute action within 15 days of a written request to do so.

A few years after the parties executed the MLPA and PSA, borrower defaults and delinquencies on individual mortgages caused the Trust and certificateholders to lose almost $330 million. Two certificateholders, RMBS Recovery Holdings 4, LLC and VP Structured Products, LLC — independent investment funds which together held 25% of the voting certificates — hired a forensic mortgage loan review firm to examine a portion of the loans in the trust. Ninety-nine percent of these loans allegedly failed to comply with at least one of DBSP’s representations and warranties in the MLPA about borrowers’ incomes, occupancy status or existing debt obligations.

By letter dated January 12, 2012, the two certificateholders gave notice to HSBC of “breaches of representations and warranties in the Mortgage Loans by the Sponsor, [DBSP] under the relevant [PSA] and related Trust documents.” Citing “the extremely high breach rates found in loan file reviews,” the certificateholders “demand [ed] that the Mortgage Loans in the Trust in their entirety be put back to [DBSP] for repurchase, including all of the individual defective loans uncovered [during their] investigation” (emphasis added). Further, the certificateholders alerted the trustee to “[t]he [u]rgent [n]eed for a Tolling Agreement . . in light of potential expiring statute of limitations deadlines,” and expressed their belief that “it [w]as imperative that the Trustee act expeditiously to request such an agreement.”

When the trustee neither sought a tolling agreement nor brought suit against DBSP, the two certificateholders sued DBSP on March 28, 2012 — six years to the day from the date of contract execution — by filing a summons with notice on behalf of the Trust. The summons with notice alleged a single cause of action for breach of contract based on DBSP’s alleged material breach of representations and warranties and failure to comply with its contractual repurchase obligation. The certificateholders asked for specific performance and damages to the tune of $250 million.

On September 13, 2012, the trustee sought to substitute for the certificateholders, and filed a complaint on the Trust’s behalf. In the complaint, the Trust alleged breaches of representations and warranties and DBSP’s refusal to comply with its repurchase obligation. The Trust asserted that it had promptly notified DBSP of the breaches of representations and warranties on February 8, March 23, April 23, April 30, May 11, May 16, May 31, June 7 and July 19, 2012; and that each of these notices specified the defective or non-conforming loans, detailed specific breaches for each loan and supplied supporting documentation. The Trust suggested that the pre-suit 60- and 90-day condition precedent was satisfied because, as of the date of its complaint, DBSP had still not repurchased any loans, and “refused to recognize the [notices of breach] as sufficient to trigger [DBSP’s] cure or repurchase obligations.”

On November 30, 2012, DBSP moved to dismiss the complaint as untimely, arguing that the trustee’s claims accrued as of March 28, 2006, more than six years before the Trust filed its complaint (see CPLR 213 [2]). Moreover, DBSP contended that the certificateholders’ summons and notice was a nullity because they did not give DBSP 60 days to cure and 90 days to repurchase before bringing suit; that the certificate-holders lacked standing because only the trustee was authorized to sue for breaches of representations and warranties; and that the trustee’s substitution could not relate back to March 28, 2012 because there was no valid preexisting action.

Supreme Court denied DBSP’s motion to dismiss (40 Misc 3d 562 [Sup Ct, NY County 2013]). The judge reasoned that DBSP could not have breached its repurchase obligations until it “fail[ed] to timely cure or repurchase a loan” following discovery or receipt of notice of a breach of a representation or warranty (id. at 566). In Supreme Court’s view, “[t]he whole point of how the MLPA and PSA were structured was to shift the risk of noncomplying loans onto DBSP” (id. at 567). Thus, the argument “that the trustee’s claims accrued in 2006 . . . utterly belies the parties’ relationship and turn[ed] the PSA on its head” (id.). The court concluded instead that DBSP’s cure or repurchase obligation was recurring and that DBSP committed an independent breach of the PSA each time it failed to cure or repurchase a defective loan; therefore, the judge held the Trust’s action to be timely. Supreme Court also determined that the Trust had satisfied the condition precedent to suit insofar as DBSP affirmatively repudiated any obligation to repurchase.

The Appellate Division reversed and granted DBSP’s motion to dismiss the complaint as untimely (112 AD3d 522 [1st Dept 2013]). The Court held that “the claims accrued on the closing date of the MLPA, March 28, 2006, when any breach of the representations and warranties contained therein occurred” (id. at 523). Further, although the certificateholders commenced their action on March 28, 2012, the last day of the applicable six-year limitations period, the 60- and 90-day periods for cure and repurchase had not by then elapsed; accordingly, the certificateholders “fail[ed] to comply with a condition precedent to commencing suit [that] rendered their summons with notice a nullity” (id.). The Appellate Division added that, in any event, the certificateholders lacked standing to commence the action on behalf of the Trust and the Trust’s substitution did not cure that defect and relate back to the certificateholders’ date of filing.

On June 26, 2014, we granted the Trust leave to appeal (23 NY3d 906 [2014]). We now affirm.

IL

Accrual

Our statutes of limitation serve the same objectives of finality, certainty and predictability that New York’s contract law endorses. Statutes of limitation not only save litigants from defending stale claims, but also “express [ ] a societal interest or public policy of giving repose to human affairs” (John J. Kassner & Co. v City of New York, 46 NY2d 544, 550 [1979] [citations and internal quotation marks omitted]). And we have repeatedly “rejected accrual dates which cannot be ascertained with any degree of certainty, in favor of a bright line approach” (MRI Broadway Rental v United States Min. Prods. Co., 92 NY2d 421, 428 [1998]).

Accordingly, New York does not apply the “discovery” rule to statutes of limitations in contract actions (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 403 [1993]). Rather, the “statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury” (id. [citations omitted]). This is so even though the result may at times be “harsh and manifestly unfair, and creates an obvious injustice” because a contrary rule “would be entirely dependent on the subjective equitable variations of different Judges and courts instead of the objective, reliable, predictable and relatively definitive rules that have long governed this aspect of commercial repose” (id. [internal quotation marks omitted]). Indeed, “[t]o extend the highly exceptional discovery notion to general breach of contract actions would effectively eviscerate the Statute of Limitations in this commercial dispute arena” (id. at 404). We applied the same bright-line rule just three years ago in the insurance context with respect to retrospective premiums, holding that breach of contract counterclaims “began to run when [insurers] possessed the legal right to demand payment from the insured,” not years later when they actually made the demand (Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 767 [2012] [emphasis added]).

The Trust does not dispute this precedent, but rather seeks to persuade us that its claim did not arise until DBSP refused to cure or repurchase, at which point the Trust, either through the trustee or the certificateholders, had six years to bring suit. Thus, the Trust views the repurchase obligation as a distinct and continuing obligation that DBSP breached each time it refused to cure or repurchase a non-conforming loan. Stated another way, the Trust considers the cure or repurchase obligation to be a separate promise of future performance that continued for the life of the investment (i.e., the mortgage loans).

Although parties may contractually agree to undertake a separate obligation, the breach of which does not arise until some future date, the repurchase obligation undertaken by DBSP does not fit this description. To support its contrary position, the Trust relies on our decision in Bulova Watch Co. v Celotex Corp. (46 NY2d 606 [1979]), where we considered whether the separate repair clause in a contract for the sale of a roof constituted a future promise of performance, the breach of which created a cause of action. The separate clause the seller included in that contract was a “20-Year Guaranty Bond,” which “expressly guaranteed that [the seller] would ‘at its own expense make any repairs . . . that may become necessary to maintain said Roof ” (id. at 608-609).

We held that the guarantee “embod[ied] an agreement distinct from the contract to supply roofing materials,” the breach of which triggered the statute of limitations anew {id. at 610). This was so because the defendant in Bulova Watch “did not merely guarantee the condition or performance of the goods, but agreed to perform a service” {id. at 612). That service was the separate and distinct promise to repair a defective roof — a critical component of the parties’ bargain and “a special, separate and additional incentive to purchase” the defendant’s product {id. at 611). Accordingly, the “agreements contemplating services . . . were subject to a six-year statute . . . running separately for the damages occasioned each time a breach of the obligation to repair the bonded roof occurred” {id.).

The remedial clause in Bulova Watch expressly guaranteed future performance of the roof and undertook a promise to repair the roof if it did not satisfy the seller’s guarantee. DBSP, by contrast, never guaranteed the future performance of the mortgage loans. It represented and warranted certain facts about the loans’ characteristics as of March 28, 2006, when the MLPA and PSA were executed, and expressly stated that those representations and warranties did not survive the closing date. DBSP’s cure or repurchase obligation was the Trust’s remedy for a breach of those representations and warranties, not a promise of the loans’ future performance. In fact, nothing in the contract specified that the cure or repurchase obligation would continue for the life of the loans. Unlike the separate guarantee in Bulova Watch, DBSP’s cure or repurchase obligation could not reasonably be viewed as a distinct promise of future performance. It was dependent on, and indeed derivative of, DBSP’s representations and warranties, which did not survive the closing and were breached, if at all, on that date.

And it makes sense that DBSP, as sponsor and seller, would not guarantee future performance of the mortgage loans, which might default 10 or 20 years after issuance for reasons entirely unrelated to the sponsor’s representations and warranties. The sponsor merely warrants certain characteristics of the loans, and promises that if those warranties and representations are materially false, it will cure or repurchase the non-conforming loans within the same statutory period in which remedies for breach of contract (i.e., rescission and expectation damages) could have been sought.

If the cure or repurchase obligation did not exist, the Trust’s only recourse would have been to bring an action against DBSP for breach of the representations and warranties. That action could only have been brought within six years of the date of contract execution. The cure or repurchase obligation is an alternative remedy, or recourse, for the Trust, but the underlying act the Trust complains of is the same: the quality of the loans and their conformity with the representations and warranties. The Trust argues, in effect, that the cure or repurchase obligation transformed a standard breach of contract remedy, i.e. damages, into one that lasted for the life of the investment — decades past the statutory period. But nothing in the parties’ agreement evidences such an intent. Historically, we have been

"extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include. . . . [C]ourts may not by construction add or excise terms, nor distort the meanings of those used and thereby make a new contract for the parties under the guise of interpreting the writing” (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004] [internal quotation marks and citations omitted]).

Condition Precedent

The Trust’s strongest argument is that the cure or repurchase obligation was a substantive condition precedent to suit that delayed accrual of the cause of action. In that vein, the Trust claims it had no right at law to sue DBSP until DBSP refused to cure or repurchase the loans within the requisite time period; only then did the PSA permit the Trust to bring suit to enforce that distinct contractual obligation. While this argument is persuasive-sounding, we are unconvinced.

The Trust ignores the difference between a demand that is a condition to a party’s performance, and a demand that seeks a remedy for a preexisting wrong. We observed the distinction over 100 years ago in Dickinson v Mayor of City of N.Y. (92 NY 584, 590 [1883]). There, we held that a 30-day statutory period during which the City of New York was free from litigation while it investigated claims did not affect accrual of the cause of action against the City. In such a case, where a legal wrong has occurred and the only impediment to recovery is the defendant’s discovery of the wrong and notice to the defendant, the claim accrues immediately. We contrasted that situation, however, to one in which “a demand . . . was a part of the cause of action and necessary to be alleged and proven, and without this no cause of action existed” (id. at 591, distinguishing Fisher v Mayor of City of N.Y., 67 NY 73 [1876]).

The Trust suffered a legal wrong at the moment DBSP allegedly breached the representations and warranties. This is like the situation in Dickinson, and unlike the situation in Fisher, where no cause of action existed until the demand was made. Here, a cause of action existed for breach of a representation and warranty; the Trust was just limited in its remedies for that breach. Hence, the condition was a procedural prerequisite to suit. If DBSP’s repurchase obligation were truly the separate undertaking the Trust alleges, DBSP would not have breached the agreement until after the Trust had demanded cure and repurchase. But DBSP breached the representations and warranties in the parties’ agreement, if at all, the moment the MLPA was executed (see e.g. ABB Indus. Sys., Inc. v Prime Tech., Inc., 120 F3d 351, 360 [2d Cir 1997] [under CPLR 213 (2), a warranty of compliance with environmental laws “was breached, if at all, on the day (the contract) was executed, and therefore, the district court correctly concluded that the statute began to run on that day]; West 90th Owners Corp. v Schlechter, 137 AD2d 456, 458 [1st Dept 1988] [“The representation . . . was false when made. Thus, the breach occurred at the time of the execution of the contract”]). The Trust simply failed to pursue its contractual remedy within six years of the alleged breach.

The only cases the Trust relies on to support its position are inapposite. The court in Resolution Trust Corp. v Key Fin. Servs., Inc. (280 F3d 12, 18 [1st Cir 2002]) specifically stated that it was not deciding the question of “[w]hether or not [the defendant] committed an independent breach by failing to repurchase” (id.). It affirmed the lower court on other grounds. The other cases the Trust cites either mistakenly rely on Resolution Trust to support the proposition that the court there expressly refrained from resolving (see LaSalle Bank N.A. v Lehman Bros. Holdings, Inc., 237 F Supp 2d 618, 638 [D Md 2002] [citing only Resolution Trust for the assertion that “a loan seller’s failure to repurchase non-conforming loans upon demand as required by a contract is an independent breach of the contract entitling the plaintiff to pursue general contract remedies for breach of contract”]; Lehman Bros. Holdings, Inc. v National Bank of Ark., 875 F Supp 2d 911, 917 [ED Ark 2012] [same]) or rest on Supreme Court’s decision in this case, which the Appellate Division subsequently reversed (see Federal Hous. Fin. Agency v WMC Mtge., LLC, 2013 WL 7144159, *1, 2013 US Dist LEXIS 184936, *2 [SD NY, Dec. 17, 2013, No. 13-Civ-584 (AKH)]).

m.

In sum, DBSP’s cure or repurchase obligation was not a separate and continuing promise of future performance; rather, it was the Trust’s sole remedy in the event of DBSP’s breach of representations and warranties. Viewed in this light, the cure or repurchase obligation was not an independently enforceable right, nor did it continue for the life of the investment. Accordingly, the Trust’s claim, subject to the six-year statute of limitations for breach-of-contract actions, accrued on March 28, 2006, when the MLPA was executed. Moreover, DBSP’s failure to cure or repurchase was not a substantive condition precedent that deferred accrual of the Trust’s claim; instead, it was a procedural prerequisite to suit. Finally, because the Trust admittedly failed to fulfill the condition precedent, we need not and do not address the issues of standing and relation back disputed by the parties.

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

Chief Judge Lippman and Judges Pigott, Rivera, Stein and Fahey concur; Judge Abdus-Salaam taking no part.

Order affirmed, with costs.

      . As servicer, Ocwen collected the mortgage payments from borrowers and contributed them to the Trust’s accounts, and Wells Fargo, the master servicer and securities administrator, oversaw Ocwen and was responsible for aggregating and distributing monthly payments and performance reports to certificateholders.

      . Tolling agreements are hardly unheard-of in connection with RMBS loan repurchase (or “put-back”) litigation. For example, JPMorgan Chase executed one in November 2013 with the trustees of several RMBS trusts as part of a massive settlement negotiation (available at JPMorgan’s RMBS settlement website, http://www.rmbstrusteesettlement.com/ TolIing_and_Forbearance_Agreement_ll.6.13.pdf).

      . The brief of amici curiae New York Law Professors helpfully analogizes the guarantees in this case and in Bulova Watch to UCC warranties: Under the New York UCC, claims based on breaches of warranty are covered by a four-year statute of limitations running from the date of delivery. Claims based on express guarantees of future performance, by contrast, are treated as arising on the future date when those express and separate guarantees are breached (UCC 2-725 [1], [2]). The promise in Bulova Watch was an express guarantee of future performance, whereas the cure or repurchase obligations in this case were directly tied to DBSP’s warranties and thus did not arise on a future date.

      . Even without reference to the Appellate Division’s decision in this case, the overwhelming majority of courts agree that cure or repurchase provisions in similar MLPAs do not give rise to a separate and independent cause of action that accrues on the date when the sponsor refuses to cure or repurchase individual loans (see e.g. Lehman Bros. Holdings, Inc. v Universal Am. Mtge. Co., LLC, 2014 WL 4269118, **3-4, 2014 US Dist LEXIS 120255, *8-11 [D Colo, Aug. 28, 2014, No. 13-cv-0092-WJM-BNB]; Wells Fargo Bank, N.A. v JPMorgan Chase Bank, N.A., 2014 WL 1259630, *3-4, 2014 US Dist LEXIS 42453, *8-13 [SD NY, Mar. 27, 2014, No. 12-CIV-6168 (MGC)]; ACE Sec. Corp. Home Equity Loan Trust, Series 2007-HE3 v DB Structured Prods., Inc., 5 F Supp 3d 543, 552 [SD NY 2014]; Aurora Commercial Corp. v Standard Pac. Mtge., Inc., 2014 WL 1056383, *4-5, 2014 US Dist LEXIS 36150, *12-15 [D Colo, Mar. 19, 2014, No. 12-cv-3138-WJM-KLM]; Deutsche Alt-A Sec. Mtge. Loan Trust, Series 2006-OA1 v DB Structured Prods., Inc., 958 F Supp 2d 488, 499 [SD NY 2013]; Deutsche Bank Natl. Trust Co. v Decision One Mtge. Co., LLC, 2013 WL 6284438, *7 [111 Cir Ct, Nov. 19, 2013, No. 2013L005823]; Lehman Bros. Holdings, Inc. v Evergreen Money source Mtge. Co., 793 F Supp 2d 1189, 1194 [WD Wash 2011]; Nomura Asset Acceptance Corp. Alternative Loan Trust, Series 2005-S4 v Nomura Credit & Capital, Inc., 39 Misc 3d 1226[A], 2013 NY Slip Op 50743[U] [Sup Ct, NY County, May 10, 2013]; Structured Mtge. Trust 1997-2 v Daiwa Fin. Corp., 2003 WL 548868, *2, 2003 US Dist LEXIS 2677, *4-6 [SD NY, Feb. 25, 2003, No. 02-Civ-3232 (SHS)]).


source: Caselaw Access Project

author: Stein, J.

license: Public Domain

text:
    [36 NE3d 632, 15 NYS3d 725]
    Greater New York Taxi Association et al., Appellants, v New York City Taxi and Limousine Commission, a Charter-Mandated Agency, et al., Respondents, and Nissan Taxi Marketing, N.A., LLC, et al., Intervenors-Respondents.
    Argued June 3, 2015;
    decided June 25, 2015

      POINTS OF COUNSEL

      Fox Rothschild LLP, New York City (Mitchell Berns, Barry J. Muller and Dana Katz of counsel), for appellants.
    The New York City Taxi and Limousine Commission exceeded its authority and violated the separation of powers doctrine by adopting the revised Taxi of Tomorrow rules. (Matter of New York State Superfund Coalition, Inc. v New York State Dept. of Envtl. Conservation, 18 NY3d 289; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; Matter of Shankman v Axelrod, 73 NY2d 203; Matter of Memorial Hosp. v Axelrod, 68 NY2d 958; Matter of Barry v O’Connell, 303 NY 46; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681; Metropolitan Taxicab Bd. of Trade v New York City Taxi & Limousine Commn., 18 NY3d 329; Kelly’s Rental v City of New York, 48 AD2d 661; Boreali v Axelrod, 71 NY2d 1.)

      Zachary W. Carter, Corporation Counsel, New York City (Elizabeth I. Freedman, Richard Hearing, Francis F. Caputo and Nicholas R. Ciappetta of counsel), for respondents.
    The Appellate Division correctly upheld the revised Taxi of Tomorrow rules and hybrid specifications. (Pavle-Marty Cab Corp. v City of New York, 48 NY2d 784; Matter of New York City Comm. for Taxi Safety v New York City Taxi & Limousine Commn., 256 AD2d 136; Matter of Black Car Assistance Corp. v City of New York, 110 AD3d 618; Boreali v Axelrod, 71 NY2d 1; Matter of New York Statewide Coalition of Hispanic Chambers of Com

      merce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681; Moore v Board of Regents of Univ. of State of N. Y., 44 NY2d 593; Matter of Levine v Whalen, 39 NY2d 510.)

      Jenner & Block, LLP, Chicago, Illinois {Peter J. Brennan of counsel), and Jenner & Block, LLP, New York City {Justin O. Spiegel of counsel), for intervenors-respondents.
    I. The New York City Taxi and Limousine Commission has statutory authority to select a single world-class vehicle as the exclusive New York City taxi. (Matter of City of New York v State of N.Y. Commn. on Cable Tel., 47 NY2d 89; Matter of Mercy Hosp. of Watertown v New York State Dept. of Social Servs., 79 NY2d 197; Matter of New York City Comm. for Taxi Safety v New York City Taxi & Limousine Commn., 256 AD2d 136; Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, Inc., 435 US 519.) II. The selection of a single non-hybrid taxi vehicle is consistent with the separation of powers doctrine. (Boreali v Axelrod, 71 NY2d 1; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Bourquin v Cuomo, 85 NY2d 781; Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398; Matter of Campagna v Shaffer, 73 NY2d 237; Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186.)

      Kostelanetz & Fink, LLP, New York City {Claude M. Mill-man and Caroline Rule of counsel), for Design Trust for Public Space and others, amici curiae.
    I. The New York City Taxi and Limousine Commission did not exceed its authority in promulgating the revised Taxi of Tomorrow rules. (Matter of Consolation Nursing Home v Commissioner of N.Y. State Dept. of Health, 85 NY2d 326; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Metropolitan Taxicab Bd. of Trade v New York City Taxi & Limousine Commn., 18 NY3d 329; Matter of Mercy Hosp. of Watertown v New York State Dept. of Social Servs., 79 NY2d 197; Matter of City of New York v State of N.Y. Commn. on Cable Tel., 47 NY2d 89; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; Committee for Taxi Safety, Inc. v City of New York, 40 Misc 3d 930; Bittrolff v Ho’s Dev. Corp., 77 NY2d 896; Matter of New York City Comm. for Taxi Safety v New York City Taxi & Limousine Commn., 256 AD2d 136.) II. The New York City Taxi and Limousine Commission did not violate the separation of powers doctrine in promulgating the Taxi of Tomorrow rules. (Matter of Levine v Whalen, 39 NY2d 510; Boreali v Axelrod, 71 NY2d 1; Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681.)
   OPINION OF THE COURT

Stein, J.

The New York City Taxi and Limousine Commission (TLC) engaged in a lengthy process to create the “Taxi of Tomorrow,” culminating in rules that established a particular make and model of vehicle as the City’s official taxicab. We now hold that the TLC did not exceed its authority or violate the separation of powers doctrine by enacting those rules.

L

Anyone reminiscing about New York City public transportation from the 1960s through at least the 1980s will probably evoke an image of Checker cabs driving residents and visitors through the busy City streets. Checker Motor Corporation made the iconic American taxicab that was valued by owners for its durability, and was appreciated by passengers for its large rear seat and trunk space. That era came to an end when the last Checker cab was produced in 1982, and they were all taken out of service as New York City taxis by the late 1990s. Just as the Checker cab was the iconic taxi of yesteryear, the TLC sought to discover or create an iconic Taxi of Tomorrow (ToT). That process has led to the case that is now before us.

The TLC, which regulates taxis and other cars for hire in New York City, was created in 1971 (see NY City Charter § 2300). In order to qualify as a taxi in New York City, a vehicle must carry passengers for compensation and be equipped with a taxi meter; it must also be painted yellow and display a current TLC medallion, which indicate that the vehicle is duly licensed to pick up passengers via street hails anywhere in the City (see Administrative Code of City of NY §§ 19-502 [1]; 19-504 [a] [1]; 19-514 [a]; 34 RCNY 4-01 [b]; L 2012, ch 9, § 11; see also Greater N.Y. Taxi Assn. v State of New York, 21 NY3d 289, 298 [2013]; Tax Law § 1280 [d]). A medallion is required to operate a yellow cab, with the number of available medallions set by the state legislature and the New York City Council (see General Municipal Law § 181; NY City Charter § 2303 [b] [4]; see also L 2011, ch 602, § 2). Most medallions are unrestricted, although some are limited to wheelchair accessible vehicles or alternative fuel vehicles; an unrestricted medallion may be used for those types of vehicles as well. With Checker — which is no longer in business — standing out as a notable exception, car manufacturers typically did not and do not design and produce vehicles with the intention that they be used as taxis. Instead, medallion owners would buy a passenger car meeting certain specifications and then “hack-up” that vehicle by adding a partition, roof light and other required equipment that is strictly regulated by the TLC (see 35 RCNY 67-05.1A). The use of passenger vehicles is less than ideal because taxis are subjected to long hours and rough driving conditions, as compared with average passenger vehicles. Additionally, the use of hacked-up passenger vehicles may pose safety risks. For example, crash testing is completed on a vehicle model before it is hacked up, and the partition that is added after crash testing may interfere with the inflation of side-curtain airbags during an actual collision.

Historically, the TLC set standards for all yellow cabs based on specifications (or specs) of a make and model of vehicle that was popular for use as a taxi. In the early 2000s, after passengers complained about insufficient legroom in vehicle models approved as taxis, Ford began making the stretch Crown Victoria, and the TLC — apparently after consulting with Ford — increased the required minimum legroom specs for all taxis to reflect the legroom in that model. The TLC acknowledged that, for years, the Crown Victoria was “the only commercially available vehicle model that has complied” with the taxi vehicle specs (35 RCNY 67-05, Note 1 [Statement of Basis and Purpose in City Record May 5, 2011]). That model became the most popular taxi vehicle, at one point comprising approximately 90% of the City’s fleet.

The TLC commenced the ToT program in 2007, partly spurred by Ford’s announcement that it planned to discontinue the Crown Victoria. The process began with committees and public hearings, engaging all taxi industry stakeholders (drivers, medallion owners and passengers), with the idea of designing a vehicle that would be manufactured primarily for use as a taxi, rather than retrofitting passenger vehicles for that purpose. As the process continued, the TLC initiated a request for proposals in late 2009, seeking a manufacturer of original equipment to provide an innovative vehicle developed as a taxi, based on guidelines that included certain important qualities. The successful bidder would be awarded a 10-year exclusive contract for sales of this vehicle as the City’s official taxi. The TLC narrowed the seven bidders down to three models, sought public and industry opinion and, finally, in mid-2011, selected the Nissan NV200 as the ToT. Rather than incorporating the specs from that model into the rules, as the TLC had historically done, the ToT rules specify the required make and model. Thus, with limited exceptions, the rules require each taxi owner to purchase an NV200 to replace an existing vehicle when it is retired (see 35 RCNY 51-03, 67-05.IB).

The Department of Citywide Administrative Services then entered into a Vehicle Supply Agreement (VSA) with Nissan. The VSA included the 10-year exclusive supply contract, provided the specs for the vehicle and set a maximum manufacturer’s suggested retail price, but no minimum. Nissan was also required under the VSA to furnish a wheelchair accessible version, that would be up-fitted before delivery to any purchaser making that request, and to create a hybrid version in the future. If a vehicle superior to the NV200 becomes available after five years, the TLC may provide notice to Nissan and terminate the VSA, unless Nissan modifies the NV200 or designs a new vehicle to match or exceed the specs of the superior vehicle. The VSA is not directly challenged here.

After a challenge to the original ToT rules (see Committee for Taxi Safety, Inc. v City of New York, 40 Misc 3d 930 [Sup Ct, NY County 2013]), the TLC enacted revised ToT rules that were essentially the same, but contained an exemption for hybrid vehicles. Additionally, the revised rules provided new specs for hybrids, in order to bring the hybrid options more in line with the NV200. The hybrid rules are not challenged here; rather, the current challenge is limited to the TLC’s selection of one vehicle model as the exclusive gas-powered taxi eligible for use by taxi medallion owners.

Petitioners, an association of medallion owners and an individual owner of a fleet, commenced this combined CPLR article 78 proceeding and declaratory judgment action, seeking to invalidate the ToT rules and obtain a related declaration. The petition alleged, among other things, that the TLC lacked authority to enact the ToT rules and violated the separation of powers doctrine in doing so. Supreme Court granted a motion to allow Nissan Taxi Marketing, N.A., LLC and Nissan North America, Inc. (collectively, Nissan) to intervene. On the merits, the court held that the TLC exceeded its authority under the City Charter and violated the separation of powers doctrine by intruding in the City Council’s domain, and declared that the ToT rules were invalid (see 42 Misc 3d 324 [Sup Ct, NY County 2013]).

The Appellate Division, with one Justice dissenting, reversed Supreme Court’s order and judgment and declared that the rules are valid (121 AD3d 21 [1st Dept 2014]). The same panel granted petitioners leave to appeal, and certified a question as to whether its order was properly made (2014 NY Slip Op 87340[U] [1st Dept 2014]).

IL

Petitioners allege that the regulations challenged here are beyond the TLC’s authority because they mandate a single gas-powered model as the City’s official taxi vehicle, rather than setting specifications that could potentially be met by other makes and models (see 35 RCNY 67-05.IB). Petitioners acknowledge that the TLC has the authority to enact rules with stringent specs that can only be met by one model at the time the rules are enacted. In addition, petitioners do not dispute that the TLC has the authority to approve the use of a single vehicle model as part of a pilot project for limited periods of time (see NY City Charter § 2303 [b] [9]; see also Matter of Black Car Assistance Corp. v City of New York, 110 AD3d 618, 618-619 [1st Dept 2013] [holding that the 12-month pilot E-Hail Program complies with NY City Charter § 2303 (b) (9)]). It is also undisputed that the City Council, itself, could enact a law limiting taxis to one model, or could specifically grant the TLC the authority to do so. Thus, the limited issue presented here is whether the TLC had the authority to require the use of a particular vehicle make and model as a taxi, as opposed to requiring taxi vehicles to meet certain specs, without the City Council explicitly specifying such authority, or whether the TLC intruded on the City Council’s domain by enacting the ToT rules.

A legislature may enact a general statutory provision and delegate power to an agency to fill in the details, as long as reasonable safeguards and guidelines are provided to the agency (see Boreali v Axelrod, 71 NY2d 1, 10 [1987]). As a creation of a legislative body, the TLC possesses the powers expressly conferred by the City Council, as well as those “required by necessary implication” (Matter of City of New York v State of N.Y. Commn. on Cable Tel., 47 NY2d 89, 92 [1979]; see Matter of Mercy Hosp. of Watertown v New York State Dept. of Social Servs., 79 NY2d 197, 203 [1992]). “[A]n agency can adopt regulations that go beyond the text of [its enabling] legislation, provided they are not inconsistent with the statutory language or its underlying purposes” (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004]). The question before us is whether the authority granted to the TLC by the City Council included the power to enact the ToT rules, or whether the agency has exceeded its authority and acted in a manner not contemplated by the legislative body (see Matter of New York State Superfund Coalition, Inc. v New York State Dept. of Envtl. Conservation, 18 NY3d 289, 294 [2011]).

The issues of delegation of power and separation of powers overlap and are often considered together (see Boreali, 71 NY2d at 9). This makes sense because, if an agency was not delegated the authority to enact certain rules, then it would usurp the authority of the legislative branch by enacting those rules. “The constitutional principle of separation of powers . . . requires that the [legislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies” (Bourquin v Cuomo, 85 NY2d 781, 784 [1995]). The branches of government cannot always be neatly divided, however, and common sense must be applied when reviewing a separation of powers challenge (see id. at 785). As long as the legislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency’s role (see id.).

The City Council granted the TLC extremely broad authority to enact rules, including the ToT rules. The TLC was created with the stated purposes of “continuance, further development and improvement of taxi and limousine service in the city of New York” (NY City Charter § 2300). The City Charter provides that the TLC is authorized,

“consonant with the promotion and protection of the public comfort and convenience [,] to adopt and establish an overall public transportation policy governing taxi. . . services as it relates to the overall public transportation network of the city; to establish . . . standards for equipment safety and design; . . . and to set standards and criteria for the licensing of vehicles” used in taxi service (NY City Charter § 2300 [emphasis added]).

“The jurisdiction, powers and duties of the [TLC] shall include the regulation and supervision of the business and industry of transportation of persons by licensed vehicles for hire in the city” (NY City Charter § 2303 [a]). Such powers extend to, among other things, “standards and conditions of service” (NY City Charter § 2303 [b] [2]), “[Requirements of standards of safety, and design ... of vehicles” (NY City Charter § 2303 [b] [6] [emphasis added]), “[t]he development and effectuation of a broad public policy of transportation . . . as it relates to forms of public transportation in the city, including innovation and experimentation in relation to type and design of equipment” (NY City Charter § 2303 [b] [9] [emphasis added]), and the promulgation of rules to carry out the TLC’s purposes (see NY City Charter § 2303 [b] [11]).

In granting the TLC this broad authority, the City Charter includes guidelines for the TLC to consider, such as “safety, and design, comfort, convenience, noise and air pollution control and efficiency in the operation of vehicles” (NY City Charter § 2303 [b] [6]). Although the TLC has generally applied the “specs method” when promulgating rules about the design of taxis, it points to a major shortcoming of that method — the situation where no available model meets the specs in the rules as, for example, when Ford discontinued the Crown Victoria (35 RCNY 67-05, Note 1 [Statement of Basis and Purpose in City Record May 5, 2011]). The TLC determined that “[t]he most obvious alternative to vehicle specifications [is the] competitive selection of taxicab vehicle models,” as embodied in the ToT project (35 RCNY 67-05, Note 1 [Statement of Basis and Purpose in City Record May 5, 2011]). This new method was intended to be a more efficient way to reach the same result and, in our view, falls within the broad authority granted to the TLC.

In Boreali, the seminal case addressing the proper delegation of power, this Court set out four “coalescing circumstances” that are non-mandatory, somewhat-intertwined factors for courts to consider when determining whether an agency has crossed the hazy “line between administrative rule-making and legislative policy-making” (71 NY2d at 11). The first factor is whether the agency did more than “balanc[e] costs and benefits according to preexisting guidelines,” but instead made “value judgments entail[ing] difficult and complex choices between broad policy goals” to resolve social problems (Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681, 698 [2014] [extending Boreali and separation of powers analysis to City agencies delegated powers under the City Charter]). Under the enabling legislation, the TLC was given the authority to make certain policy choices, consistent with the guidelines enumerated therein, and it has done so here. In developing the ToT rules, the TLC balanced the costs and benefits to all interested parties — passengers, owners, drivers and the general public — using many of the same guidelines that it previously used to develop rules with specs. The goal under both the specs method and the single model approach was to select the best taxi for all involved. Enactment of the ToT rules did not entail a difficult and complex choice among policy goals reserved for the City Council (see Matter of New York City Comm. for Taxi Safety v New York City Taxi & Limousine Commn., 256 AD2d 136, 137 [1st Dept 1998] [holding that the TLC had authority to make rules requiring financial disclosure by medallion owners and related parties]), or an intrusion into “economic and social concerns . . . outside of [the TLC’s] proper sphere of authority” (Boreali, 71 NY2d at 12). Nor is the City Charter’s grant of authority to the TLC to create vehicle “standards” limited to the creation of specs. Rather, the broad authority granted to the TLC allows for the designation of a single vehicle model that was specifically designed — through a lengthy public process — to be a taxi. The choice of the best possible vehicle for use as a taxi plainly fits within the purposes of the TLC to develop and improve taxi service as part of the City’s overall public transportation system (see NY City Charter §§ 2300, 2303 [b] [9]).

The second Boreali factor is whether the agency merely filled in details of a broad policy or if it “wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance” (Boreali, 71 NY2d at 13). The TLC was not writing on a clean slate in the sense that it has always regulated the taxi industry as to almost every detail of operation. The City Council has largely left taxi regulation to the TLC, with little interference. The only instance of intervention identified by the parties was when the City Council required the TLC to “approve one or more hybrid electric vehicle models for use as a taxicab” (Administrative Code of City of NY § 19-533 [emphasis added]). The City Council’s use of the words “one or more,” together with the direction that the TLC approve a “model or models” (Administrative Code § 19-533 [emphasis added]), rather than specs, constitutes some legislative guidance from which we can infer that the Council generally recognized the single model method as within the TLC’s authority.

The third Boreali factor is whether the legislature has unsuc-' cessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve (see Boreali, 71 NY2d at 13). Petitioners’ argument that the City Council has debated the one-model issue and failed to come to a resolution is without foundation. The bills that petitioners identify dealt with other matters, such as requiring all taxis to be hybrids or wheelchair accessible, not with whether all gas-powered taxis should be one model. Petitioners have not demonstrated that the Council tried, but failed, to make all taxis a single model. Additionally, there is no dispute that the TLC has historically based its specs on particular models; the practical result of that practice has not been meaningfully different from limiting the citywide fleet to one model. Where an agency has promulgated regulations in a particular area for an extended time without any interference from the legislative body, we can infer, to some degree, that the legislature approves of the agency’s interpretation or action (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 866 [2003]; compare Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, 23 NY3d at 692-693, 700; Boreali, 71 NY2d at 13). As noted, the City Council has generally refrained from intervening in the TLC’s broad regulation of the taxi industry — including as to the specific question at issue here — for over four decades.

The fourth Boreali factor, whether the agency used special expertise or competence in the field to develop the challenged regulations (see Boreali, 71 NY2d at 13-14), is neutral in this case. Technical expertise was clearly essential to select the single best model as the ToT, but not necessarily to decide whether to limit the selection to one model (regardless of which vehicle was chosen).

As noted, these factors are not mandatory, need not be weighed evenly, and are essentially guidelines for conducting an analysis of an agency’s exercise of power. When this Court recently conducted a Boreali analysis in Matter of New York Statewide Coalition of Hispanic Chambers of Commerce, to determine whether an agency’s ban on large sugary drinks was permissible regulation, as opposed to impermissible policymaking, we focused on whether the challenged regulation attempted to resolve difficult social problems concerning matters of personal autonomy by “interfering] with commonplace daily activities preferred by large numbers of people” (23 NY3d at 698-699 [noting that, while few people would risk the safety of their children near unguarded apartment windows, a significant number of people regularly overindulge in sugary drinks]). Viewing the ToT rules with this overall focus, and concluding that they do not involve difficult social problems of any nature, our analysis compels the determination that the TLC engaged in proper rulemaking, rather than improper legislating.

Given the broad statutory powers granted to the TLC to set policy as guided by enumerated safeguards and guidelines, the TLC did not exceed its authority or intrude on the City Council’s domain in violation of the separation of powers doctrine by enacting the ToT rules. Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Sadaam and Fahey concur.

Order affirmed, with costs, and certified question answered in the affirmative.

      . Green cabs, also known as Boro Taxis, are permitted to pick up street hails only in areas of the City not adequately served by yellow cabs, including the boroughs outside of Manhattan (see 35 RCNY 82-52 [a]; L 2012, ch 9, § 4 [b], [c]; L 2011, ch 602; see also Tax Law § 1280 [o]). Those taxis are not at issue here.

      . At oral argument, the parties discussed a December 2014 amendment to the VSA (eliminating the requirement that Nissan develop a hybrid version and providing that, if one is developed, there will be no exclusivity related to the hybrid version). That amended contract is not in the record before this Court and these changes have not been reflected in the rules.

      . We reject petitioners’ characterization of the TLC as having entered into a partnership with Nissan. The TLC publicly issued a request for proposals that was open to any vehicle manufacturer. Once Nissan was chosen as the successful bidder — again, through a lengthy public process — the TLC necessarily worked closely with Nissan to ensure that the vehicle that was produced actually met the TLC’s expectations, and to address other related issues, such as parts availability, vehicle service and conversion to a wheelchair accessible version. Nissan was a contractor for, not a partner with, the TLC. That agency retained its position as a regulator of all participants in the taxi industry, including the designer and supplier of the ToT.

      . Due to the impending implementation of the rules in April 2015, this Court granted petitioners’ motion for a stay pending appeal (25 NY3d 957 [2015]).

      . Any argument that a monopoly in favor of Nissan is improper is belied by these undisputed powers, which would permit the same single-source vehicle supply situation if it was achieved through a different process.

      . Petitioners argue that no agency has the authority to require medallion owners to enter into a contract with a particular manufacturer. Nevertheless, the rules under the specs method, while not explicitly stating so, had the effect of requiring owners to purchase a specific vehicle from a single manufacturer when only one vehicle model complied with those specs (i.e., the Ford stretch Crown Victoria). Petitioners do not complain about those rules and, in fact, have acknowledged that the TLC has the authority to make rules with specs that can be met by only one model. In our view, perhaps aside from the time period involved, this is a distinction without a difference. In any event, the ToT rules do not actually limit owners of unrestricted medallions to one model; they can currently choose the NV200, any of three hybrid models that meet the hybrid exemption and specs, or a wheelchair accessible model (see 35 RCNY 67-05.IB [b]).