author: Rosenblatt, J.

text:
    [810 NE2d 393, 778 NYS2d 111]
    Maria N. Pelaez, as Mother and Natural Guardian of Servando R Pelaez and Another, Infants, Appellant, v Laura Seide et al., Defendants, and County of Putnam et al., Respondents. Ashley Harris, an Infant, by Her Mother and Natural Guardian, Debbie Harris, et al., Appellants, v Phillip Llewellyn, Defendant, and City of New York, Respondent.
    Argued February 10, 2004;
    decided March 25, 2004

      POINTS OF COUNSEL

      Nancy Fairchild Sachs, EC., New York City (Nancy Fairchild Sachs of counsel), for appellant in the first-above entitled action.
    I. Summary judgment was improperly granted as there exist genuine issues of material fact regarding the applicability of the doctrine of sovereign immunity. (Rotuba Extruders v Ceppos, 46 NY2d 223; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Cruz v American Export Lines, 67 NY2d 1, cert denied sub nom. Bussanich v United States Lines Inc., 476 US 1170; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Cohn v Lionel Corp., 21 NY2d 559; Patrolmen’s Benevolent Assn. v City of New York, 27 NY2d 410; Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851.) II. A municipality may be held liable for the improper performance of its governmental functions where there exists a special relationship between the municipality and an injured party. (Cuffy v City of New York, 69 NY2d 255, 70 NY2d 667; Garrett v Holiday Inns, 58 NY2d 253; Herron v Long Beach Hous. Auth., 284 AD2d 499, 97 NY2d 604; Gibbs v Paine, 280 AD2d 517, 96 NY2d 714; Messam v Williams, 284 AD2d 437; Valencia v Lee, 55 F Supp 2d 122, 123 F Supp 2d 666, 316 F3d 299; Carrero v New York City Hous. Auth., 295 AD2d 230; Curry v Davis, 241 AD2d 924; Bargy v Sienkiewicz, 207 AD2d 606; Thomas v City of New York, 180 AD2d 588, 80 NY2d 753.) III. The enforcement of lead paint abatement regulations is not discretionary so as to shield defendants from liability for improper enforcement. (Curry v Davis, 241 AD2d 924; Bargy v Sienkiewicz, 207 AD2d 606; Thomas v City of New York, 180 AD2d 588, 80 NY2d 725; New York City Coalition to End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404, 170 AD2d 419; Niesig v Team I, 76 NY2d 363; Valencia v Lee, 55 F Supp 2d 122, 123 F Supp 2d 666, 316 F3d 299; Klostermann v Cuomo, 61 NY2d 525; Tango v Tulevech, 61 NY2d 34; Garrett v Holiday Inns, 58 NY2d 253.) IV. The Appellate Division erred in granting summary judgment as there exist issues of fact regarding the municipal defendants’ misfeasance in carrying out their governmental duties. (Bernardine v City of New York, 294 NY 361; Carroll v City of New York, 287 AD2d 430; Persaud v City of New York, 267 AD2d 220; Office Park Corp. v County of Onondaga, 64 AD2d 252, 48 NY2d 765; Haggarty v Diamond, 251 AD2d 455, 92 NY2d 814.) V Summary judgment was improperly granted where a reasonable jury could find that defendants made negligent misrepresentations, upon which plaintiff foreseeably relied to the detriment of her children. (Heard v City of New York, 82 NY2d 66; International Prods. Co. v Erie R.R. Co., 244 NY 331; Eiseman v State of New York, 70 NY2d 175.)

      Servino Santangelo & Randazzo LLP, White Plains (Anthony J. Servino of counsel), for respondents in the first above-entitled action.
    I. Since the alleged acts or omissions asserted against the County of Putnam and the Putnam County Department of Health as a basis for liability involve matters which are primarily governmental in nature, the Appellate Division was correct in reversing the lower court decision; these public entities remain immune from negligence claims arising out of the performance of such governmental functions. (Be Long v County of Erie, 60 NY2d 296; Florence v Goldberg, 44 NY2d 189; Riss v City of New York, 22 NY2d 579; Motyka v City of Amsterdam, 15 NY2d 134; O’Connor v City of New York, 58 NY2d 184; Garrett v Holiday Inns, 58 NY2d 253.) II. Since plaintiff has not established the existence of a special duty which is created by statute or voluntary assumption by the municipal defendants, the Appellate Division was correct in reversing the lower court decision. (Cuffy v City of New York, 69 NY2d 255, 70 NY2d 667; Shinder v State of New York, 62 NY2d 945; Sorichetti v City of New York, 65 NY2d 461; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Tammaro v County of Suffolk, 224 AD2d 406; O’Connor v City of New York, 58 NY2d 184; Valencia v Lee, 55 F Supp 2d 122, 123 F Supp 2d 666, 316 F3d 299; Kenavan v City of New York, 70 NY2d 558; Sheehy v Big Flats Community Day, 73 NY2d 629; Gibbs v Paine, 280 AD2d 517, 96 NY2d 714.)

      Northern Manhattan Improvement Corporation Legal Services, New York City (.Kenneth Rosenfeld, Matthew J. Chachére and Andrea L. Rodriguez of counsel), for New York City Coalition to End Lead Poisoning and others, amici curiae in the first above-entitled action. The Second Department’s decision is contrary to public policy and should be reversed. (Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337; Williamsburg Around the Bridge Block Assn, v Giuliani, 223 AD2d 64; New York City Coalition to End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404, 170 AD2d 419, 216 AD2d 219; New York City Coalition to End Lead Poisoning v Giuliani, 245 AD2d 49; Juarez v Wavecrest Mgt. Team, 212 AD2d 38, 88 NY2d 628; City of New York v Lead Indus. Assn., 190 AD2d 173; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Lauer v City of New York, 95 NY2d 95; Crosland v New York City Tr. Auth., 68 NY2d 165; Waters v New York City Hous. Auth., 69 NY2d 225.)

      Anthony P Rivizzigno, County Attorney, Syracuse {Karen A. Bleskowski of counsel), for County of Onondaga, amicus curiae in the first above-entitled action. For liability to attach a duty must exist. (Lauer v City of New York, 95 NY2d 95; Sheehy v Big Flats Community Day, 73 NY2d 629; Arteaga v State of New York, 72 NY2d 212; Weiss v Fote, 7 NY2d 579; Tango v Tulevich, 61 NY2d 34; Chapman v Silber, 97 NY2d 9.)

      O’Connell and Aronowitz, Albany {Peter Danziger, James E. Nixon and Mark G. Richter of counsel), for New York State Trial Lawyers Association, amicus curiae in the first above-entitled action.
    I. Sovereign immunity is the exception, not the rule. {Principality of Monaco v Mississippi, 292 US 313; Bloom v Jewish Bd. of Guardians, 286 NY 349; Runkel v City of New York, 282 App Div 173; Motyka v City of Amsterdam, 15 NY2d 134.) II. The Lead Poisoning Prevention Act was enacted to protect young children. (Williamsburg Around the Bridge Block Assn. v Giuliani, 167 Misc 2d 980, 223 AD2d 64; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337.) III. The county failed to tender sufficient evidence to demonstrate the absence of material issues of fact. (Di Menna & Sons v City of New York, 301 NY 118; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178; Blake-Veeder Realty v Crayford, 110 AD2d 1007; Rotuba Extruders v Ceppos, 46 NY2d 223.) IV The county failed to establish that it exercised “reasoned judgment” as a matter of law. (Curry v Davis, 241 AD2d 924; Bargy v Sienkiewicz, 207 AD2d 606; Thomas v City of New York, 180 AD2d 588, 80 NY2d 725; New York City Coalition to End Lead Poisoning v Koch, 138 Misc 2d 188, 139 AD2d 404, 170 AD2d 419; Haddock v City of New York, 75 NY2d 478; Ford Motor Credit Co. v State of New York, 133 AD2d 980; Kagan v State of New York, 221 AD2d 7; Tango v Tulevech, 61 NY2d 34; Boland v State of New York, 218 AD2d 235; Weiss v Fote, 7 NY2d 579.) V Material issues of fact of a special duty between the municipality and the injured party preclude summary judgment. {Lauer v City of New York, 95 NY2d 95; Haddock v City of New York, 75 NY2d 478; Tango v Tulevech, 61 NY2d 34; Kagan v State of New York, 221 AD2d 7; Boland v State of New York, 218 AD2d 235; Garrett v Holiday Inns, 58 NY2d 253; Carrero v New York City Hous. Auth., 295 AD2d 230; Thomas v City of New York, 180 AD2d 588, 80 NY2d 725; Bargy v Sienkiewicz, 207 AD2d 606; Curry v Davis, 241 AD2d 924.) VI. There is no immunity for discretionary acts if the municipality fails to establish that it exercised “reasoned judgment.” (Haddock v City of New York, 75 NY2d 478.) VII. Governmental immunity does not apply to proprietary acts. (Rattray v State of New York, 223 AD2d 356; Amadou v State of New York, 182 AD2d 955, 81 NY2d 701; D'Avolio v Prado, 277 AD2d 877; Canty v New York City Health & Hosps. Corp., 158 AD2d 271; Matter of Karedes v Colella, 100 NY2d 45; Sebastian v State of New York, 93 NY2d 790; Schrempf v State of New York, 66 NY2d 289; Miller v State of New York, 62 NY2d 506.) VIII. In childhood lead poisoning cases, the balancing of equities does not favor granting municipal immunity as a matter of law. (Lauer v City of New York, 95 NY2d 95; Boland v State of New York, 218 AD2d 235.)

      Athari Law Office, Utica (Mo Athari of counsel), amicus curiae in the first above-entitled action. Given that the conduct of the County of Putnam was operational in nature, the infant plaintiffs have raised an issue of fact as to whether a special duty existed to protect the infants from further severe lead poisoning. (Moch Co. v Rensselaer Water Co., 247 NY 160; Bernardine v City of New York, 294 NY 361; Weiss v Fote, 7 NY2d 579; Urquhart v City of Ogdensburg, 91 NY 67; Riss v City of New York, 22 NY2d 579; Messineo v City of New York, 17 NY2d 523; Lauer v City of New York, 95 NY2d 95; Tango v Tulevech, 61 NY2d 34; Garrett v Holiday Inns, 58 NY2d 253; Tarter v State of New York, 68 NY2d 511.)

      Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly, John E. Fitzgerald, Eugene S.R. Pagano, Alberto Casadevall and Mitchell Gittin of counsel), for appellants in the second above-entitled action.
    I. The city assumed a voluntary duty to plaintiffs. (Sorichetti v City of New York, 65 NY2d 461; Bargy v Sienkiewicz, 207 AD2d 606; Florence v Goldberg, 44 NY2d 189; De Long v County of Erie, 60 NY2d 296; Valencia v Lee, 123 F Supp 2d 666, 316 F3d 299; Morales v Reyes, 187 Misc 2d 390; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337; Kircher v City of Jamestown, 74 NY2d 251; Cuffy v City of New York, 69 NY2d 255.) II. The city violated a law enacted for the benefit of a special class. (Garrett v Holiday Inns, 58 NY2d 253; Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239; Chapin v City of White Plains, 104 AD2d 785; Gibbs v Paine, 280 AD2d 517, 96 NY2d 714; Davis v Owens, 259 AD2d 272, 93 NY2d 810; Valencia v Lee, 123 F Supp 2d 666.) III. The city took direction and control of a blatantly dangerous situation. (Smullen v City

      of New York, 28 NY2d 66; Valencia v Lee, 123 F Supp 2d 666; Henderson v City of New York, 178 AD2d 129.) IV The city breached its duty to plaintiffs. (Heard v City of New York, 82 NY2d 66; Sorichetti v City of New York, 65 NY2d 461.) V Other courts have imposed municipal liability in similar cases. (Thomas v City of New York, 180 AD2d 588, 80 NY2d 753; Carrero v New York City Hous. Auth., 295 AD2d 230; Bargy v Sienkiewicz, 207 AD2d 606; Curry v Davis, 241 AD2d 924; Valencia v Lee, 123 F Supp 2d 666; Pelaez v Seide, 300 AD2d 461, 100 NY2d 503; Rivera v Village of Spring Val., 284 AD2d 521; Herron v Long Beach Hous. Auth., 284 AD2d 499, 97 NY2d 604; Messam v Williams, 284 AD2d 437; Gibbs v Paine, 276 AD2d 743, 280 AD2d 517.) VI. The city is liable for misfeasance. (Rodriguez v City of New York, 189 AD2d 166; Schuster v City of New York, 5 NY2d 75; Sorichetti v City of New York, 65 NY2d 461; Cuffy v City of New York, 69 NY2d 255; Florence v Goldberg, 44 NY2d 189; Heard v City of New York, 82 NY2d 66; Eiseman v State of New York, 70 NY2d 175; Junius Constr. Corp. v Cohen, 257 NY 393; Brass v American Film Tech., Inc., 987 F2d 142; Sheridan Drive-In v State of New York, 16 AD2d 400.)

      Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon and Kristin M. Helmers of counsel), for respondent in the second above-entitled action.
    The Appellate Division properly held, as a matter of law, that the evidence was insufficient to establish the existence of a special relationship between plaintiffs and the New York City Department of Health. Thus, the court properly granted summary judgment to the City because, without a special relationship, the City cannot be held liable in negligence for allegedly failing to enforce requirements for lead-paint abatement. (Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337; Bargy v Sienkiewicz, 207 AD2d 606; Sanchez v Village of Liberty, 42 NY2d 876, 44 NY2d 817; O'Connor v City of New York, 58 NY2d 184; Garrett v Holiday Inns, 58 NY2d 253; Rivera v Village of Spring Val., 284 AD2d 521; Messam v Williams, 284 AD2d 437; Gibbs v Paine, 280 AD2d 517, 96 NY2d 714; Davis v Owens, 259 AD2d 272, 93 NY2d 810.)

      D’Agostino, Krackeler, Baynes & Maguire, P.C., Menands (Arete K. Sprio of counsel), for County of Albany, amicus curiae in the first and second above-entitled actions. There exists no liability as against a municipality absent a special relationship. 0Cardona v County of Albany, 188 Misc 2d 440; Cuffy v City of

      New York, 69 NY2d 255; Milliken & Co. v Consolidated Edison Co., 84 NY2d 469; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Moch Co. v Rensselaer Water Co., 247 NY 160; Hamilton v Berretta USA Corp., 96 NY2d 222; Church v Callanan Indus., 99 NY2d 104; Espinal v Melville Snow Contrs., 98 NY2d 136; Herron v Long Beach Hous. Auth., 284 AD2d 499; Newhook v Hallock, 215 AD2d 804.)
   OPINION OF THE COURT

Rosenblatt, J.

In these two cases, we must decide whether plaintiffs—children injured by exposure to lead paint—may hold a municipality liable in tort based on certain inspection and health counseling services. As a rule, municipalities are immune from tort liability when their employees perform discretionary acts involving the exercise of reasoned judgment. In a narrow exception to the rule, we have upheld tort claims when plaintiffs have established a “special relationship” with the municipality. In the appeals before us, plaintiffs have not made such a showing, and we therefore affirm the dismissal of both complaints against the municipal defendants.

L

Pelaez v Seide

Maria Nancy Pelaez gave birth to twin boys, plaintiffs Christopher and Servando, in January 1994. In November, the family moved into a house on Center Street in Brewster, Putnam County. Defendants Gary and Laura Seide owned the property and employed defendant Peter Glass as caretaker.

Soon after moving in, Christopher and Servando experienced a host of medical problems, including stomach aches, diarrhea and vomiting. Eventually, they underwent blood tests. Servándoos blood lead level tested at 20 micrograms per deciliter (meg/ dl), and his physician notified the County of the results. On March 2, 1995, Susan Ortiz, a registered nurse who served as Childhood Lead Poisoning Prevention Program Coordinator for the Putnam County Department of Health (PCDOH), learned of Servando’s elevated blood lead level and sent Pelaez an informational pamphlet about lead poisoning. She also contacted Lawrence Werper, a public health engineer for the PCDOH, so that he could inspect the premises.

In March 1995, Werper visited the home several times to test for lead paint. No one was home on his first visit, but he took paint samples from the outside of the house, and they tested positive for lead. A few days later, Werper tested paint samples from inside the home and determined that the property contained no lead-safe rooms. On March 14, the County issued a notice and demand for discontinuance, ordering abatement by April 7.

Werper visited again on March 29, accompanied by Ortiz. While Ortiz spoke with Pelaez and the children, Werper inspected the premises and saw that abatement had not yet begun. According to Pelaez, Ortiz told her to follow a regimen that would help the children’s condition, such as feeding them vegetables, removing the carpet and mopping the floors instead of sweeping them. Ortiz also performed a developmental assessment of the children—in her words, she picked them up and noted that although they were small for their age, they could raise their arms, look at her when she spoke to them, hear her properly and support their own weight. Pelaez stated that Ortiz did not advise her that lead poisoning “was a very dangerous thing,” or suggest that she move her family from the premises.

Ortiz and Werper continued to watch the situation over the next few months. On April 24, Werper returned to the residence and found that abatement was proceeding inadequately. He issued a notice of hearing to the landlord, but later cancelled the hearing when a June inspection showed progress. Although Werper admitted that he did not aggressively press the owners or discuss the dangers of lead poisoning with Pelaez, Ortiz returned to the home in April to make sure that Pelaez was following her instructions. She also sent Pelaez a letter in May 1995, after further testing showed that Servando’s blood lead levels dropped to 13 mcg/dl. In the letter, Ortiz applauded the improvement and said that Servando did not need to be retested until September.

Werper reinspected the premises on August 9 and September 14. He determined that abatement was not proceeding well enough and reissued the notice of hearing for October 11, 1995 before a Putnam County administrative hearing officer. At the hearing, the judge ordered defendant Glass to relocate the children immediately.

The children were retested the very next day. Christopher’s blood lead level was 50 mcg/dl, and Servando’s measured 70 mcg/dl. Recognizing that these levels constitute medical emergencies, Ortiz had the children admitted to the hospital, where they underwent chelation treatment. The day after the children entered the hospital, Werper had the house condemned as unfit for human habitation.

Plaintiffs commenced this personal injury action against the Seides, Glass, Putnam County and its DOH, claiming that the children suffered neurological and behavioral injury based on defendants’ negligence and dereliction. The Putnam defendants moved for summary judgment, which Supreme Court denied, determining that there were questions of fact as to the existence of a special relationship.

The Appellate Division reversed and dismissed the complaint against the County defendants, holding that the employees’ conduct involved discretion and judgment, which could not result in liability even if their actions were negligent. Further, the Court found that no special relationship existed. It also determined that because the Public Health Law was enacted for the benefit of the general public—and not to protect a special class of persons, such as children—the County violated no statutory duty. Lastly, the Court concluded that plaintiffs did not raise issues of fact that the County voluntarily assumed either a duty to protect the children, or assumed a positive direction or control over the situation.

Harris v Llewellyn

In 1988, Debbie Harris moved to an apartment on Newkirk Avenue in Brooklyn. She gave birth to her daughter, plaintiff Ashley, four years later. In September 1996, Ashley’s blood lead level tested at 33 mcg/dl, triggering intervention by the City of New York. A City Department of Health public health advisor (PHA) visited the Harrises at home and provided nutritional and hygienic advice to help lower Ashley’s lead levels. Also, a City DOH public health sanitarian (PHS) inspected the apartment using an x-ray fluorescence machine, finding that many painted surfaces in the apartment contained hazardous levels of lead.

In October 1996, City DOH issued an order to abate nuisance, but when a PHS and PHA reinspected the apartment in November, they determined that abatement had not begun. In the meantime, the PHA provided Harris with further nutritional and hygienic counseling. Later that month, the Harrises temporarily relocated to another apartment while the landlord abated the condition. In January 1997, the landlord told Harris that the process was complete and that she and Ashley could return to the apartment, which they did. On the 17th, a PHS inspected the apartment again. She observed that the landlord appeared to be in compliance and took a single dust wipe sample that tested negative for lead dust. According to Harris, the PHS told her that all lead had been removed from the apartment.

Over the next year, Ashley’s blood lead levels remained elevated. In January 1997, she tested at 28 mcg/dl, prompting a PHA to visit Ashley’s pediatrician to discuss the situation. The PHA returned to the Harris home in February 1997, noting in his report that the apartment had been fully abated but that Ashley’s blood lead levels still remained high. For several months in 1997, Ashley continued to show elevated lead levels, and she eventually entered a lead poisoning treatment program. Ashley’s hospital records for these treatments reveal that her mother believed all lead violations had been abated as of January 1997, and that the DOH had personally confirmed the abatement. ~

In May 1997, the Harrises sued the City and the landlord, alleging negligence and related causes of action. Although Ashley’s blood lead levels dropped below 20 mcg/dl after November 1997, they hovered in the teens in tests administered through 1998. In September 2000, when plaintiffs had the apartment tested by an independent environmental consulting company, the results revealed that 31 of 45 surfaces tested contained hazardous levels of lead.

In 2001, plaintiffs and the City moved for summary judgment. Supreme Court granted the City’s motion, and the Appellate Division affirmed, concluding that the city lead paint regulations protected the general public and not a specific class of persons as needed to establish a special relationship. The Court further held that the City did not undertake a duty to plaintiffs by giving them nutritional and hygienic advice and did not assume positive direction and control of a known hazardous situation. We now affirm in both cases.

IL

This Court has recognized lead paint poisoning as a “serious health problem,” especially for young children (Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337, 342-343 [2003]). Even at low levels, lead paint poisoning can harm the central nervous system and cause health problems such as impaired growth, hearing loss and limited attention span. In 1992, the Legislature passed the Lead Poisoning Prevention Act (Public Health Law §§ 1370—1376-a) “to prevent lead poisoning in children and others” (Governor’s Program Bill Mem, Bill Jacket, L 1992, ch 485, at 6). As relevant here, Public Health Law § 1370-a (1) requires the DOH to “exercise any and all authority” to create programs that establish and coordinate activities to prevent lead poisoning and minimize the risk of exposure to lead. Subdivision (2) specifies certain required actions, such as screening for children and pregnant women, monitoring children and pregnant women who have elevated blood lead levels, and the development of public education and community outreach programs on lead exposure, detection and risk reduction (see Public Health Law § 1370-a [2] [a]-[d]).

Pursuant to the legislation, Putnam County and New York City have developed programs addressing the problem of lead paint. Putnam County received state approval and funding to establish a Childhood Lead Poisoning Prevention Program (CLPP) and developed a plan to help reduce the prevalence of elevated blood lead levels in children under six years of age. The County drafted guidelines for screening, case management, documentation and reporting, case review and quality assurance. Also, the protocols provide for home visits by a public health nurse. They supply a “home visit packet” that includes questionnaires “used to assess the child for signs and symptoms of lead poisoning,” a nutritional assessment sheet, an environmental source checklist and educational materials for the family-

The County has also produced a worksheet entitled “Prevention is Everyone’s Responsibility,” asking parents of children with lead poisoning to “take the following precautions in your home for your child’s safety to help lower his/her blood lead level to normal limits.” The worksheet instructs parents, for example, to wash the child’s hands frequently, to be sure that their child’s diet includes ample iron and calcium, to keep children away from areas being renovated and to clean with a wet mop or rags, rather than a broom or vacuum cleaner.

For its part, the New York City Health Code regulates intervention by the City DOH on behalf of a lead-poisoned child (see 24 RCNY 173.13). As of January 1, 1997, subdivision (d) (2) allows the City DOH to order the abatement of lead paint hazards when “there is a child under 18 years of age with a blood-lead level of 20 micrograms per deciliter or higher residing in any dwelling,” and the DOH determines that the lead paint poses a hazard to the child. Before January 1, 1997, this subdivision afforded this protection to “any person,” as opposed to just children under age 18 (see Valencia v Lee, 123 F Supp 2d 666, 674 [ED NY 2000]). Against this statutory and regulatory background, we address the issue of municipal liability in damages for alleged negligence.

IIL

We are often called upon to determine the existence of a duty in negligence cases. When it comes to municipal liability, we note that 75 years ago the State waived its immunity from liability when it enacted former section 12-a (now section 8) of the Court of Claims Act (see L 1929, ch 467). Although that liability extends to the State’s political subdivisions, it is not absolute.

As we noted in Lauer v City of New York (95 NY2d 95, 99 [2000]), “[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent.” To impose liability, there must be a duty that runs from the municipality to the plaintiff. We have recognized a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity. When such a relationship is shown—and it is plaintiff s burden to establish it—the government is under a duty to exercise reasonable care toward the plaintiff (see Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]).

A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation (see id. at 261-262). None apply here.

A. Violation of a Statutory Duty

To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]). If one of these prerequisites is lacking, the claim will fail. Thus, in O’Connor v City of New York (58 NY2d 184 [1983]), we rejected the plaintiffs argument that the City violated a statutory duty by issuing a “blue card” approving a faulty gas piping system that later exploded and killed several people. Although it was obvious that blue card approval should not have been granted, we determined that a private right of action was unavailable. The regulations, we held, were intended to protect the general public—as opposed to a particular class of persons—and plaintiff therefore could not satisfy the first Sheehy prong.

In Uhr v East Greenbush Cent. School Dist. (94 NY2d 32 [1999]), we noted that the first two Sheehy prongs were satisfied, but dismissed the claim based on the plaintiffs failure to satisfy the third prong, requiring that a private right of action be consistent with the legislative scheme. The case involved a student diagnosed with scoliosis who claimed that her school district—which was mandated to administer scoliosis examinations—was negligent in failing to test for the condition. We recognized that the Education Law could be enforced administratively, and that the Legislature’s failure to amend the statute and provide for a private cause of action was strong evidence of its contrary intent, in light of decisional law denying liability where a school district had failed to administer scoliosis tests.

Given our precedents and the thrust of the Lead Poisoning Prevention Act, we conclude that a private right of action is not available under the statute. Therefore, plaintiffs may not assert a special relationship based on a claimed violation of a statutory duty.

Clearly, plaintiffs meet the first prong, as part of the class to be benefitted. The Lead Poisoning Prevention Act specifically mentions children and pregnant women as the statutory beneficiaries (see e.g. Public Health Law § 1370-a [2] [a]). Moreover, the Bill Jacket is filled with references to the protection of children (see e.g. Governor’s Program Bill Mem, Bill Jacket, L 1992, ch 485, at 12; Mem of Assembly Member Eve, id. at 17; Governor’s Approval Mem, id. at 27). Indeed, the Putnam County protocols list children under the age of six as the class of persons they intend to protect. In New York City, the pertinent regulation (24 RCNY 173.13 [d] [2]) was amended effective January 1, 1997, to apply to children under age 18, and it was during that month the city inspector told the Harrises that the apartment was lead-free.

Creation of a private right of action, however, is not consistent with the legislative scheme, and thus fails under the third Sheehy prong. While a private right of action might, at least indirectly, promote the ultimate legislative purpose—reducing lead paint hazards—and thus satisfy the second Sheehy prong, it does not comport with the legislative scheme. The enactment contemplates a program of oversight in which the role of government is, in the main, administrative and advisory. Municipalities participate by conducting lead screening, compiling a statewide registry for children with elevated lead levels, and developing public education and community outreach programs (see Public Health Law § 1370-a [2]). Insofar as they can compel property owners to abate the nuisance, municipalities have a hand in enforcement (see Public Health Law § 1373), but in all, the Public Health Law is best read to assure that owners, not government, bear the ultimate responsibility for compliance.

Opening municipalities to liability for carrying out their duties imperfectly could even disserve the statutory objective by, causing municipalities to withdraw or reduce services in dealing with lead paint. Lawsuits are not the only way to deal with the problem. We read the legislative design as encouraging municipalities to cooperate administratively, while preserving the tort remedy against owners, when appropriate.

B. Voluntary Assumption of a Duty

Most of our municipal special relationship cases have centered on whether a municipality has assumed an affirmative duty that generated justifiable reliance by the plaintiff. We laid out the test in Cuffy v City of New York (69 NY2d 255 [1987]). It requires (1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking {id. at 260).

Undisputedly, the officials in both cases had direct contact with the plaintiffs. Their claims fail, however, because neither municipality voluntarily assumed a duty on which plaintiff could justifiably rely. In retrospect, the municipal employees in both cases may have carried out their duties imperfectly, and it surely would have been far better—and the harm perhaps avoided— had the Putnam authorities been more aggressive and the New York officials more thorough. But that is not the test. If it were, municipalities in all their governmental functions would be insurers of the safety of their citizens and be open to liability whenever it can be shown that they could have or should have done better.

The Pelaez plaintiffs argue that the County exceeded its responsibilities and took on affirmative duties by offering advice as to nutrition and hygiene. They also fault the County for eliciting medical information about the children, for promising to conduct reinspections and ensure abatement, and for following up with visits and letters erroneously advising them that it was not necessary to take Servando for testing until September. The Harris plaintiffs similarly argue that the health and hygienic advice provided by the City went beyond the purview of the Public Health Law. We disagree. On this record, we cannot say that in their contacts with plaintiffs either municipality took on an affirmative duty to act on plaintiffs’ behalf. Indeed, when dealing with plaintiffs, the officials did not go beyond the mandates of the lead paint laws.

The Public Health Law calls for the inspection and counseling activities undertaken by the municipalities. Public Health Law § 1370-a (1) directs that lead poisoning prevention programs “be responsible for establishing and coordinating activities to prevent lead poisoning and to minimize risk of exposure to lead.” Further, subdivision (2) (d) mandates the development and implementation of “public education and community outreach programs on lead exposure, detection and risk reduction.” Providing advice on health and hygiene issues is a governmental activity meant “to prevent lead poisoning and to minimize risk of exposure to lead.” It also constitutes education and outreach, thus falling well within the statute.

Moreover, the Putnam County protocols expressly provide for home visits and follow-ups by public health nurses. Thus, Ortiz’s follow-up visit and letter were not over and above the protocols. Indeed, the home visit packet contains a questionnaire “used to assess the child for signs and symptoms of lead poisoning.” The questionnaire includes medically-related queries, such as whether the child exhibits pica, has convulsions, or has problems hearing or speaking clearly. Thus, the developmental assessment was plainly within the protocols. Moreover, any promises by the inspector did not fall outside the inspection and enforcement tasks the statute contemplated.

In light of our holding that the County and City did not voluntarily assume an affirmative duty, we need not address whether the plaintiffs justifiably relied on the County’s and City’s actions.

C. Positive Direction and Control

Lastly, a special relationship may be formed when a municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation. Smullen v City of New York (28 NY2d 66 [1971]) is the prototypical case for this exception. Applying the criterion, we found a special relationship between the municipality and a worker who was killed when a trench collapsed. Before entering the trench, a city inspector, who was in control of the site and had the power to stop work, assured the worker the trench was “solid.” (Id. at 69.) Indeed, the trial court instructed the jury that there could be no recovery against the City in the absence of a finding that “the inspector assumed control and direction of the work and that such a conclusion could only be arrived at if it could be found that he gave decedent ‘an order or affirmative instruction to enter the excavation.’ ” (Id.) The trench, however, had not been braced or shored as required by regulation. We sustained a verdict for the plaintiff, “because of the city’s actual knowledge of the dangerous condition and its failure to do anything about it at a time when the inspector was directly on hand as the peril heightened” (id. at 71).

Here, however, neither municipality assumed positive direction or control in the face of a known, blatant and dangerous safety violation. The Pelaez plaintiffs argue that the County took control of the situation by failing to inform Pelaez of the dangers of abatement and allowing her to believe that the implementation of health and hygiene measures would protect her children. She also contends that the County promised to perform further inspections and ensure abatement, but instead took no action for several months even though the landlord did not properly comply. Similarly, the Harris plaintiffs argue that the City took control by identifying violations, ordering abatement, providing health and hygiene counseling, and assuring them the apartment was safe, although a later inspection showed that abatement had not been successful.

The record reveals that, although the municipalities had personal contact with plaintiffs, they did not take positive direction and control of either situation. By way of contrast, the city inspector in Smullen had the power to prevent the worker from entering the trench, and could have halted the work altogether (see id. at 73). We recognize that municipalities have certain enforcement mechanisms at their disposal, such as the ability to issue a notice and demand for discontinuance (see Public Health Law § 1373), but property owners must first fail to comply before the municipality can take steps, such as applying for a receivership (see Public Health Law § 1374). Here, the landlords, as opposed to the municipalities, were in immediate control of the abatement process and had shown some level of compliance. The municipalities monitored the process and urged it along but did not take control of abatement.

Moreover, providing health and hygiene advice does not constitute positive direction and control. The actions of the officials in both instances were largely advisory. In any event, although they proved insufficient, the suggested measures—implementing certain cleaning procedures and feeding children a diet rich in iron and calcium—cannot be equated with the actions of the city official in Smullen.

Unlike the blatant hazard in Smullen, the hazard in the Harris apartment had ostensibly been abated, as confirmed by a private company’s inspection in December 1996. Thus, the lead paint hazard would not have been readily apparent.

m

In conclusion, we cannot adopt plaintiffs’ argument without expanding the boundaries of special relationships under our decisional law. As we stated in Lauer (95 NY2d at 100), courts have been cautious about opening the public purse. Of course, the Legislature may extend the orbit of duty, but it has not done so. Most of this Court’s special relationship cases have in common that the government is potentially open to liability even though it did not directly cause the plaintiffs injuries. For example, in the police cases (which all but occupy the special relationship field) the police were not directly responsible for the plaintiffs’ injuries. Similarly, the fire department in Helman (67 NY2d 799 [1986]) did not cause the fire, much as the inspectors in Garrett (58 NY2d 253 [1983]) and O’Connor (58 NY2d 184 [1983]) did not cause the conflagrations. In this sense municipal responsibility is different from—and a less obvious basis for liability than—instances in which the government employee directly causes the injury, as where a police officer negligently shoots or otherwise injures someone.

In the special relationship cases we are generally asked to impose liability on the government because it failed to prevent the acts of third persons who are the primary wrongdoers. This involves a form of secondary liability which we have restricted, out of respect for the public treasury. While, on occasion, the government’s failure to act is so severe as to render it liable, no government could possibly exist if was made answerable in damages whenever it could have done better to protect someone from another person’s misconduct. Illustrations (and damages) would be infinite, varying only in the degree of harm. Here, the municipalities are not charged with having caused the lead paint injuries. If that were the case, as where the municipality owned the premises, it would be answerable to same extent as any other owner or landlord.

Accordingly, in each case 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.

In each case: Order affirmed, with costs.

      . The nonmunicipal defendants are not involved in either of these appeals.

      . Under the Putnam County protocols, children who have blood lead levels at or above 10 mcg/dl are entered into the Health Department case management system.

      . New York City Health Code (24 RCNY) § 173.13 (d) (2), defines lead poisoning as blood lead levels of 20 mcg/dl or higher.

      . See Rechtschaffen, The Lead Poisoning Challenge: An Approach for California and Other States, 21 Harv Envtl L Rev 387 (1997); see also Jensen, From Tobacco to Health Care and Beyond—A Critique of Lawsuits Targeting Unpopular Industries, 86 Cornell L Rev 1334, 1364-1371 (Sept. 2001).

      . We note that the City recently enacted Local Law No. 1 of 2004, the New York City Childhood Lead Poisoning Prevention Act of 2003 (Proposed Intro No. 101-A), to become effective August 2, 2004.

      . See Becker v City of New York, 2 NY2d 226 (1957); Bemardine v City of New York, 294 NY 361, 365 (1945).

      . See Motyka v City of Amsterdam, 15 NY2d 134 (1965); Weiss v Fote, 7 NY2d 579 (1960); see generally Stewart F. Hancock, Jr., Symposium: Municipal Liability, Municipal Liability Through a Judge’s Eyes, 44 Syracuse L Rev 925 (1993).

      . While the existence of a special relationship depends on the facts, a plaintiff has a heavy burden in establishing such a relationship. As a result, we have dismissed most such claims as a matter of law (see e.g. Lauer, 95 NY2d 95 [2000] [complaint dismissed after judgment for plaintiff]; Merced v City of New York, 75 NY2d 798 [1990] [complaint dismissed]; Kircher v City of Jamestown, 74 NY2d 251 [1989] [summary judgment]; Cuffy v City of New York, 69 NY2d 255 [1987] [complaint dismissed after judgment for plaintiff]; Helman v County of Warren, 67 NY2d 799 [1986] [summary judgment]; Year-wood v Town of Brighton, 64 NY2d 667 [1984] [complaint dismissed after judgment for plaintiff]; Quinn v Nadler Bros., 59 NY2d 914 [1983] [summary judgment]; O’Connor v City of New York, 58 NY2d 184 [1983] [complaint dismissed after judgment for plaintiff]; Weiner v Metropolitan Transp. Auth., 55 NY2d 175 [1982] [summary judgment]; Malerba v Incorporated Vil. of Huntington Bay, 54 NY2d 863 [1981] [summary judgment]; Sanchez v Village of Liberty, 42 NY2d 876 [1977] [complaint dismissed for failure to state cause of action]; Pinkney v City of New York, 40 NY2d 1004 [1976] [affirming dismissal of complaint at close of evidence]; Evers v Westerberg, 32 NY2d 684 [1973] [affirming dismissal of complaint against municipality after verdict for plaintiff]; Bass v City of New York, 32 NY2d 894 [1973] [affirming dismissal of complaint after judgment for plaintiff]; Riss v City of New York, 22 NY2d 579 [1968] [affirming dismissal at close of evidence]; Motyka v City of Amsterdam, 15 NY2d 134 [1965] [affirming dismissal of complaint at close of plaintiff’s case]).
      In several of the most egregious situations, we sustained judgments for plaintiffs or found questions of fact precluding summary judgment (see e.g. Mastroianni v County of Suffolk, 91 NY2d 198 [1997] [reversing grant of summary judgment for defendant]; Sorichetti v City of New York, 65 NY2d 461 [1985] [affirming judgment for plaintiff]; De Long v County of Erie, 60 NY2d 296 [1983] [affirming judgment for plaintiff]; Garrett v Holiday Inns, 58 NY2d 253 [1983] [reversing grant of summary judgment for municipality]; Florence v Goldberg, 44 NY2d 189 [1978] [affirming judgment for plaintiff]; Smullen v City of New York, 28 NY2d 66 [1971] [reinstating judgment for plaintiff]; Schuster v City of New York, 5 NY2d 75 [1958] [reversing dismissal of complaint]; see also Crosland v New York City Tr. Auth., 68 NY2d 165 [1986] [affirming denial of defendant’s summary judgment motion]).

      . Other courts, both state and federal, have addressed municipal liability in lead paint cases. Some have held that plaintiffs raised triable issues of fact based on special relationships (see e.g. Carrero v New York City Hous. Auth., 295 AD2d 230 [1st Dept 2002]; Curry v Davis, 241 AD2d 924 [4th Dept 1997]; Bargy v Sienkiewicz, 207 AD2d 606 [3d Dept 1994]; Cardona v County of Albany, 188 Misc 2d 440 [Sup Ct, Albany County 2001]; see also Valencia v Lee, 123 F Supp 2d 666 [ED NY 2000], vacated on jurisdictional grounds 316 F3d 299 [2d Cir 2003]).
      Other courts have granted summary judgment to the municipality because the plaintiffs did not establish a special relationship (see Gibbs v Paine, 280 AD2d 517 [2d Dept 2001]; Ubiera v Housing Now Co., 184 Misc 2d 846 [Sup Ct, Bronx County 2000]).

      . See Mastroianni, 91 NY2d 198 (1997); Merced, 75 NY2d 798 (1990); Kircher, 74 NY2d 251 (1989); Cuffy, 69 NY2d 255 (1987); Sorichetti, 65 NY2d 461 (1985); Yearwood, 64 NY2d 667 (1984); De Long, 60 NY2d 296 (1983); Weiner, 55 NY2d 175 (1982); Malerba, 54 NY2d 863 (1981); Florence, 44 NY2d 189 (1978); Evers, 32 NY2d 684 (1973); Bass, 32 NY2d 894 (1973); Riss, 22 NY2d 579 (1968); Schuster, 5 NY2d 75 (1958); see also Shinder v State of New York, 62 NY2d 945 (1984); Napolitano v County of Suffolk, 61 NY2d 863 (1984); see generally 1 Dobbs, Torts § 272, at 728-731 [2001]; 18 McQuillin, Municipal Corporations § 53.04.25, at 193-197; § 53.04.30, at 209-213 [3d ed rev]; Annotation, Liability of Municipality or Other Governmental Unit for Failure to Provide Police Protection from Crime, 90 ALR5th 273.

      . See Jones v State of New York, 33 NY2d 275 (1973); Flamer v City of Yonkers, 309 NY 114 (1955); Bernardine v City of New York, 294 NY 361 (1945); see generally Annotation, Municipality Liability for Personal Injuries Resulting From Police Officer’s Use of Excessive Force in Performance of Duty, 88 ALR2d 1330.

      . See e.g. Miller v State of New York, 62 NY2d 506 (1984); Preston v State of New York, 59 NY2d 997 (1983).


source: Caselaw Access Project

author: Chief Judge Kaye. R.S. Smith, J. (dissenting).

license: Public Domain

text:
    [810 NE2d 405, 778 NYS2d 123]
    New York State Association of Nurse Anesthetists, Respondent, v Antonia C. Novello, as Commissioner of Health, et al., Appellants.
    Argued February 17, 2004;
    decided March 30, 2004

      POINTS OF COUNSEL

      Eliot Spitzer, Attorney General, Albany CEvelyn M. Tenenbaum, Caitlin Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for appellants.
    I. Plaintiff lacks standing to sue. (Rudder v Pataki, 93 NY2d 273; Society of Plastics Indus, v County of Suffolk, 77 NY2d 761; Matter of Colella v Board of Assessors, 95 NY2d 401; Matter of New York State Conference of Blue Cross & Blue Shield Plans v Muhl, 253 AD2d 158; Matter of Professional Ins. Agents of NY. State v New York State Ins. Dept., 197 AD2d 258; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406; Matter of Lasalle Ambulance v New York State Dept, of Health, 245 AD2d 724, 91 NY2d 810; Mahoney v Pataki, 98 NY2d 45; Matter of MFY Legal Servs. v Dudley, 67 NY2d 706; Matter of Gilkes v New York State Div. of Parole, 192 AD2d 1041.) II. The Department of Health acted within its legislative authority in issuing guidelines recommending an appropriate standard of care for office-based surgery. (Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948; Matter of Sturman v Ingraham, 52 AD2d 882; Matter of Connell v Regan, 114 AD2d 273; Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225; Matter of Trustees of Masonic Hall & Asylum Fund v Axelrod, 174 AD2d 199; Matter of Sheehan v Ambach, 136 AD2d 25, 72 NY2d 804; Spensieri v Lasky, 94 NY2d 231; Diaz v New York Downtown Hosp., 99 NY2d 542; Gallo v Linkow, 255 AD2d 113; Masucci v Feder, 196 AD2d 416.)

      Boies, Schiller & Flexner LLP, Albany (George F. Carpinello and Martin G. Deptula of counsel), for respondent.
    I. The guidelines are ultra vires and invalid. (Smirlock Realty Corp. v Title Guar. Co., 63 NY2d 955; Huntley v State of New York, 62 NY2d 134; People v De Tore, 34 NY2d 199; Matter of Wood v Axelrod, 203 AD2d 645; Clifton Springs Sanitarium Co. v Axelrod, 115 AD2d 949; People v Dobbs Ferry Med. Pavillion, 40 AD2d 324, 33 NY2d 584; People v Cull, 10 NY2d 123; Matter of Mohawk Val. Ambulance Corps v New York State Dept. of Health, 164 AD2d 968; Matter of Amsterdam Nursing Home Corp. v Ax

      elrod, 135 AD2d 331; Matter of Schenkman v Dole, 148 AD2d 116.) II. Plaintiff has standing to maintain this action. (Matter of Dental Socy. of State of N.Y. v Carey, 61 NY2d 330; Matter of New York State Assn, of Community Action Agency Bd. Members v Shaffer, 119 AD2d 871; Matter of Dairylea Coop, v Walkley, 38 NY2d 6; Subcontractors Trade Assn, v Koch, 62 NY2d 422; Matter of New York State Nurses Assn. v Axelrod, 152 AD2d 888; Community Serv. Socy. v Cuomo, 167 AD2d 168; Matter of Save Our Main St. Bldgs, v Greene County Legislature, 293 AD2d 907; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406; Society of Plastics Indus, v County of Suffolk, 77 NY2d 761; Rex Paving Corp. v White, 139 AD2d 176.) III. The guidelines are ripe for judicial review. (Abbott Labs, v Gardner, 387 US 136; Columbia Broadcasting Sys. v United States, 316 US 407; Church of St. Paul & St. Andrew v Bar-wick, 67 NY2d 510, 479 US 985; Matter of Dental Socy. of State of N.Y. v Carey, 61 NY2d 330; Matter of MacGilfrey v Pugh, 217 AD2d 888; Community Hous. Improvement Program v New York State Div. of Hous. & Community Renewal, 175 AD2d 905; Matter of New York State Socy. of Obstetricians & Gynecologists v Corcoran, 138 Misc 2d 591.)

      Higgins, Roberts, Beyerl & Coan, P.C., Schenectady (Charles J. Assini, Jr., of counsel), and Squire, Sanders & Dempsey L.L.P., Washington, D.C. (Scott T. Kragie of counsel), for American Society of Anesthesiologists and others, amici curiae.
    I. The Department of Health is not prohibited from issuing guidelines promoting patient safety. II. The guidelines do not require participation by an anesthesiologist.

      Nutter, McClennen & Fish, LLP, Boston, Massachusetts (Gene A. Blumenreich and Ronald E. Cahill of counsel), for American Association of Nurse Anesthetists, amici curiae.
    I. The guidelines limit certified registered nurse anesthetists by effectively requiring participation by an anesthesiologist in office-based practices. II. The guidelines remain unsupported by medical evidence and justification and are contrary to the public interest.
   OPINION OF THE COURT

Chief Judge Kaye.

Defendant New York State Department of Health routinely issues guidelines and advisories on a variety of health-related topics. Challenged on this appeal are the Department of Health’s “Clinical Guidelines for Office-based Surgery.” Plaintiff—a not-for-profit corporation that represents more than 750 certified registered nurse anesthetists (CRNAs), nurses specially trained to administer anesthesia—seeks a declaration that these Guidelines are null and void because they are in fact regulations and defendants, the Department of Health, Commissioner of Health and Public Health Council, are without authority to regulate services provided in private physicians’ offices. We conclude that plaintiff lacks standing to maintain this action and reach no other issue.

The Guidelines

In 1997, defendants created a Committee on Quality Assurance in Office-Based Surgery in order to establish standards of care for the burgeoning, but unregulated, practice of surgeries performed in physicians’ offices. In December 2000—with defendants’ endorsement—the Committee issued the Guidelines that are the subject of this action.

The stated intent and goal of the Guidelines is to “ensure that the public is adequately protected when undergoing surgery/invasive procedures in private offices of health care practitioners.” The Guidelines include a broad range of recommendations for the qualification of practitioners and staff, equipment, facilities, ancillary services, and policies and procedures for patient admission, monitoring, discharge and emergency care. Most directly relevant to the present litigation, the Guidelines contain specifications regarding anesthesia administered in private offices—from conscious to unconscious/ deep sedation and general anesthesia. Among other things, the Guidelines suggest that CRNAs administering anesthesia to patients in doctors’ offices be supervised by a physician, dentist or podiatrist who is “physically present, [and] qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia and who has accepted responsibility for supervision.” The Guidelines also recommend that the supervising physician perform a preanesthetic examination, prescribe the anesthesia, remain physically present during the surgery and be “available for diagnosis, treatment and management of anesthesia-related complications or emergencies.”

Shortly before issuance of the Guidelines, plaintiff initiated this action seeking a declaration that the Guidelines are null and void because defendants’ authority to regulate surgery is limited under Public Health Law article 28 to hospital settings. In their motion to dismiss, defendants urged both that the case was not ripe for review and that plaintiff lacked standing to mount this challenge. Assuming standing, Supreme Court denied defendants’ motion to dismiss, granted plaintiff summary judgment, and declared the Guidelines null and void as exceeding defendants’ authority. The Appellate Division correctly recognized that a grant of relief to plaintiff first requires resolution of the standing issue; explicitly found that plaintiff had standing; and agreed with Supreme Court that the Guidelines are regulations beyond defendants’ purview and thus illegal. In opposition to defendants’ appeal to this Court as of right under CPLR 5601 (b) (1), plaintiff argued that “[i]t is the statutory issue, i.e., whether the Department of Health exceeded the clear limits of its statutory authority, that is dispositive.” We dismissed defendants’ appeal as of right (100 NY2d 534 [2003]), granted their motion for leave to determine this issue (100 NY2d 510 [2003]) and now reverse.

Analysis

Standing is, of course, a threshold requirement for a plaintiff seeking to challenge governmental action. The two-part test for determining standing is a familiar one. First, a plaintiff must show “injury in fact,” meaning that plaintiff will actually be harmed by the challenged administrative action. As the term itself implies, the injury must be more than conjectural. Second, the injury a plaintiff asserts must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted (see Society of Plastics Indus, v County of Suffolk, 77 NY2d 761, 773 [1991]; Matter of Colella v Board of Assessors, 95 NY2d 401, 409-410 [2000]). To establish standing, an organizational plaintiff—such as plaintiff here—must show that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members. (See e.g. Rudder v Pataki, 93 NY2d 273, 278 [1999]; Matter of Dental Socy. of State of N.Y. v Carey, 61 NY2d 330, 333-334 [1984]; Matter of Dairylea Coop, v Walkley, 38 NY2d 6, 9 [1975].)

Although the Appellate Division determined standing by first looking to “zone of interests,” concluding that plaintiff’s members fall within the class of individuals protected by the constitutional and statutory provisions that are the basis for suit, we begin our analysis with the critical element of in-fact injury—the requirement that plaintiff have an actual legal stake in the matter in dispute. Because we conclude that plaintiff has not shown in-fact injury entitling it to challenge defendants’ authority to issue the Guidelines, we need not reach the other components of standing.

The core of plaintiffs assertion of in-fact injury is that the Guidelines “effectively” require CRNAs to be supervised by anesthesiologists; that physicians would find it cost prohibitive to have both CRNAs and anesthesiologists during surgery; and that the Guidelines therefore “effectively” prohibit CRNAs from performing anesthesia services in an office-based setting. In short, according to plaintiff, the Guidelines “[ojbviously . . . restrict the scope of a CRNA’s area of practice.” Plaintiffs asserted injury rests on the following extract from the Guidelines:

“Anesthesia should be administered only by a licensed, qualified and competent practitioner. Registered professional nurses (RNs) who administer anesthesia as part of a medical, dental or podiatric procedure (including but not limited to CRNAs) should have training and experience appropriate to the level of anesthesia administered, and function in accordance with their scope of practice. Supervision of the anesthesia component of the medical, dental or podiatric procedure should be provided by a physician, dentist or podiatrist who is physically present, who is qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia and who has accepted responsibility for supervision. The physician, dentist or podiatrist providing supervision should:
“1. perform a preanesthetic examination and evaluation;
“2. prescribe the anesthesia;
“3. assure that qualified practitioners participate;
“4. remain physically present during the entire perioperative period and immediately available for diagnosis, treatment and management of anesthesia-related complications or emergencies; and
“5. assure the provision of indicated postanesthesia care.”

The Appellate Division accepted plaintiffs assumption that CRNAs will likely be injured as “reasonable and sufficient to demonstrate a likelihood of actual injury” (301 AD2d 895, 898 [3d Dept 2003]). We conclude, however, that plaintiffs assumption lacks the concreteness required for “injury in fact”

Plaintiffs argument that CRNAs will likely be injured is founded on two layers of speculation—that the Guidelines will be rigorously enforced as regulations and that, as such, they will effectively harm CRNAs. At this juncture, it is not at all “obvious” that, even if enforced as regulations, the Guidelines would in fact injure any of plaintiffs members as claimed.

The Guidelines themselves do not explicitly restrict a CRNA’s area of practice; nor do they express any intent to do so. Rather, they explicitly provide for the continued employment of CRNAs so long as they have “training and experience appropriate to the level of anesthesia administered.” When executing a medical regimen, all nurses—including CRNAs working in a physician’s office—already must be supervised “by a licensed physician, dentist or other licensed health care provider legally authorized under this title” (Education Law § 6902 [1]; see also 1948 Ops Atty Gen 203 [“a nurse working under a physician, is entitled to administer general anesthesia”]; 48 State Dept Rep 137, 138 [1933] [a nurse does not violate the law if the nurse administers anesthesia “under the direction of a physician”]).

The Guidelines do not require anesthesiologist supervision, and do not prohibit operating physicians from themselves supervising CRNAs as they administer anesthesia. On the contrary, the Guidelines specifically recommend that the minimum number of available personnel during administration of conscious sedation should be two: “the practitioner performing the surgery and the individual monitoring the patient,” with analogous recommendations for regional and general anesthesia. Since the Guidelines allow nurses to administer all types of anesthesia, it is clear that the operating doctor can also be the supervising doctor. Furthermore, as defendants point out, the Guidelines recommend that the supervising physician be qualified by law to perform and supervise the administration of anesthesia, and a license to practice medicine under Education Law article 131 is the only credential required by law to perform a medical procedure, including the administration of anesthesia. These physicians may, as the Guidelines explicitly suggest, elect to participate in continuing education training in order to maintain high standards of quality.

The recommended procedures might, or might not, actually affect the employment of CRNAs in physicians’ offices. At this point, there is no certainty whatsoever that any CRNA would in fact be injured. That some physicians do not routinely or ordinarily perform measures now recommended in the Guidelines (as plaintiff argues) does not mean that physicians could not and would not themselves choose to do so, as opposed to firing CRNAs and hiring anesthesiologists.

Plaintiffs speculation about the future course the Guidelines might take cannot, under our precedents, supply the missing ingredient of in-fact injury. In Dental Society, we recognized the standing of an organization of licensed dentists to challenge a Medicaid dental fee reimbursement schedule, where dentist-members receiving reimbursements necessarily suffered actual economic loss from defendants’ failure over nearly 20 years to update the schedule. In Rudder, by contrast, there was no showing that any member of plaintiff organizations would be deprived of opportunities or entitlements. As we noted in affirming the dismissal of plaintiffs’ declaratory judgment action, standing requires a showing of “cognizable harm,” meaning that an individual member of plaintiff organizations “has been or will be injured”; “ ‘tenuous’ and ‘ephemeral’ harm ... is insufficient to trigger judicial intervention” (93 NY2d at 279).

While the record leads us to a different conclusion from the dissent, we are unanimous in our commitment to predictability in the law of standing, starting with the element of in-fact injury. Consistent with our precedents, we conclude that, on this record, plaintiff has failed to demonstrate an in-fact injury sufficient to meet the first prong of the test for standing. That in the future the hypothesized harm might befall CRNAs does not at this time entitle plaintiff to maintain this action.

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

R.S. Smith, J. (dissenting).

The Commissioner of Health has promulgated “Guidelines,” which say that certified registered nurse anesthetists (CRNAs) should provide certain services in connection with office-based surgery only when they are subject to what the Commissioner considers appropriate supervision. Plaintiff, an association of New York CRNAs, challenges the Guidelines, asserting that they are regulations in disguise. I think it is clear that the Guidelines will injure CRNAs’ opportunities for employment, and I therefore dissent from the majority’s conclusion that CRNAs lack standing because they have not shown that the Guidelines will injure them.

The Facts

The pertinent portion of the Guidelines is quoted in full in the majority opinion (majority op at 212). The Guidelines say that, when a CRNA administers anesthesia in an office setting, “[supervision . . . should be provided by a physician, dentist or podiatrist who is physically present, who is qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia and who has accepted responsibility for supervision.” The Guidelines go on to itemize five things that the person providing supervision should do, including “perform a preanesthetic examination and evaluation” and “remain physically present during the entire perioperative period.” The majority opinion does not describe the evidence provided by plaintiff of the economic harm that these provisions of the Guidelines will do to its members. This is a striking omission, for plaintiffs showing of injury is powerful, detailed and virtually unrebutted.

The complaint alleges that the Guidelines change the status quo in several ways that limit what a CRNA can do. The complaint says that CRNAs now commonly work under the supervision of surgeons who are not “qualified ... to perform the administration of anesthesia,” and that the Guidelines will change this by “effectively requiring] the presence of an anesthesiologist [i.e. a doctor specializing in anesthesia] at all office-based surgeries.” The complaint also alleges that the “pre-anesthetic examination and evaluation” are now performed routinely by CRNAs, and that requiring a physician to be present during the “entire perioperative period” effectively “necessitates the presence of an anesthesiologist since the surgeon routinely does not directly monitor the patient during the periods before and after the operation.” As a result, according to the complaint, “[b]ecause it is cost-prohibitive for both CRNAs and anesthesiologists to be present during surgery, the [Guidelines effectively prohibit CRNAs from performing anesthesia services in an office-based setting.”

The allegations of harm in the complaint were amplified in affidavits submitted to Supreme Court. Sandra Tunajek, a CRNA and the Director of Practice of the American Association of Nurse Anesthetists, testified: “I can state unequivocally that the effect of these Guidelines will be to require the presence of an anesthesiologist whenever regional or general anesthesia are administered in the office-based setting.” Tunajek’s affidavit did not merely state this conclusion, but explained the basis for it in detail, dealing first with the impact of the requirement that the CRNA’s supervisor be a “physician, dentist or podiatrist . . . qualified ... to perform and supervise the administration of the anesthesia.” The gist of her explanation is that most surgeons lack these qualifications, and must hire either an anesthesiologist or a CRNA to administer anesthesia; the Guidelines would effectively force them to choose an anesthesiologist. Tunajek’s testimony on this point is extensive, and I quote it only in part:

“Guideline G (1) (a) specifically requires that the supervising physician must be ‘qualified by law, regulation or hospital appointment to perform . . . the administration of anesthesia.’ Operating physicians who are qualified by law, regulation or appointment to actually perform the administration of anesthesia are extremely rare. Most physicians who perform surgery in the hospital, ambulatory surgery or office setting are not qualified to administer anesthesia. These physicians rely upon the expertise of a CRNA or an anesthesiologist, both of whom are trained to administer anesthesia. While operating physicians are qualified to deal with surgical complications, and may have limited knowledge of anesthesia complications, they are not qualified to administer anesthesia.”

In addition, Tunajek testified that, of the five steps which the Guidelines require a physician to perform, “four . . . are routinely performed by CRNAs or anesthesiologists.” Again, she set forth the basis for her conclusion in clear and persuasive detail, and again I quote only an excerpt, relating to one of the requirements—that of the supervisor’s physical presence:

“[T]he Guidelines require the physician to remain physically present during the entire ‘perioperative period’ and immediately available for management of ‘anesthesia-related complications or emergencies.’ In virtually all surgeries, the operating surgeon does not remain present with the patient during the entire perioperative period. It is the job of the CRNA or the anesthesiologist to remain with the patient to assure that the patient is recovering properly from the effects of the anesthesia. Further, the CRNA or the anesthesiologist is specifically trained to deal with complications or emergencies arising from the administration of anesthesia.”

Again, Tunajek explained, the effect of the Guidelines is to require the presence of an anesthesiologist at office-based surgeries. Tunajek concluded:

“If an anesthesiologist’s presence is compulsory, the CRNA would have no role in the office-based setting. It is simply not economically feasible to have both an anesthesiologist and a CRNA involved in an office-based surgery. Virtually all office-based surgeries conducted throughout the United States involve the presence of a CRNA or an anesthesiologist, not both.”

Plaintiff also submitted the affidavit of an eye surgeon, Kenneth Anthone. Dr. Anthone testified that he and his partner “have routinely used CRNAs since 1994”; that “[n]either I nor my partner consider ourselves to be able to ‘perform’ anesthesia”; and that “[w]e do not remain physically present with the patient during the post-operative period.” Dr. Anthone concluded: “Since there would be no reason to have both a CRNA and an anesthesiologist present during the procedure, and the cost of such duplication of services would be prohibitive, the net effect of the application of the Guidelines to our practice would be the elimination of all positions for CRNAs.”

In defendants’ factual submissions to Supreme Court, their response to all this evidence of harm was virtual silence. Defendants’ answer denied plaintiff’s allegation that the Guidelines “effectively require [CRNAs] to be supervised by anesthesiologists,” but the more specific allegations of the complaint that I quoted or summarized above were met either with a reference “to the guidelines themselves as the best evidence of their contents” or with a denial of “sufficient knowledge or information to form a basis for responding.” In the affidavits submitted below, defendants presented no evidence on the “injury in fact” issue except one conclusory and ambiguous sentence in the affidavit of Wayne Osten, Director of the Office of Health Systems Management. Osten testified: “The Guidelines do not require anesthesiologist supervision as alleged by plaintiff, and I am aware of no objective information to substantiate plaintiffs economic concerns.” Osten added that the Guidelines served worthy goals which “far outweigh potential economic impacts upon [CRNAs]”—thus virtually admitting that such “potential economic impacts” exist.

On this record, the majority concludes that plaintiff has failed to show that CRNAs will be injured by the Guidelines.

Discussion

The majority opinion correctly states the two-part test for determining standing—plaintiff must show “injury in fact” and must also show that the injury is within the “zone of interest” appropriate to confer standing. The first part of the test is of course the easier to satisfy, and common sense suggests that it will be satisfied in most cases. People do not usually spend the time and money to bring lawsuits challenging actions that do not in fact injure them.

Here, as I pointed out above, plaintiff made a powerful factual showing of injury in Supreme Court, and defendants submitted no contrary evidence of substance. But defendants now argue that “injury in fact” is lacking. The gist of their argument is that the Guidelines could not possibly injure CRNAs because the Guidelines, to the extent plaintiff complains of them, are meaningless.

Defendants claim that the requirement for supervision of anesthesia by “a physician . . . who is qualified by law, regulation or hospital appointment to perform and supervise the administration of the anesthesia” requires only supervision by “a physician” and that the “who is qualified” clause is tautological. Defendants point out that there is no separate legal requirement for the credentialing of an anesthesiologist, and they conclude from this that “all M.D.s are qualified by law to perform anesthesia and therefore qualify under the Guidelines to supervise CRNAs.” Thus, defendants say that “[w]ith respect to physicians, this guideline adds nothing to the parameters of medical practice.” Why the Commissioner would write a guideline that “adds nothing” remains a mystery.

I find defendants’ reading of this portion of the Guidelines completely unpersuasive. Plaintiff’s evidence shows, and defendants do not dispute, that there are physicians who are not in fact qualified to administer anesthesia. Indeed, one such physician submitted an affidavit to that effect below. To say that all physicians—even those who could not administer anesthesia without endangering a patient’s life—are “qualified by law” within the meaning of the Guidelines because there is no law that prohibits them from administering anesthesia strikes me as a bit of verbal cleverness devised by lawyers for litigation purposes.

There is not a hint in the Guidelines themselves, or in the extensive materials submitted to Supreme Court concerning the development of the Guidelines, to the effect that the words “physician . . . who is qualified” were intended as a mere redundancy. On the contrary, an e-mail generated during the drafting of the Guidelines shows that the author of the clause thought it did have meaning: the head of the relevant subcommittee said in the e-mail that, while the words of the Guidelines did not “specify . . . an anesthesiologist,” they implied that “only someone with qualifications as outlined” should supervise CRNAs. If, as defendants now claim, all physicians have these qualifications, this e-mail does not make sense.

Thus the essential meaninglessness of the “who is qualified” language, as applied to doctors, was apparently first discovered by the lawyers defending this lawsuit. But it does not really matter whether defendants are right or wrong about the “who is qualified” clause, for defendants do not even attempt to answer plaintiffs demonstration that CRNAs will be injured by other provisions of the Guidelines. For example, there is uncontradicted proof in the record, quoted above, that a supervising physician does not ordinarily perform “preanesthetic examination and evaluation” and is not present during the “entire perioperative period,” as the Guidelines require. If the Guidelines are implemented, supervising physicians who are not able, or do not choose, to take on these added responsibilities will have to hire anesthesiologists to perform them—making CRNAs superfluous. Defendants nowhere even assert that this is not so.

In short, defendants’ response to plaintiffs position on the “injury in fact” issue is partly unpersuasive and partly nonexistent. The majority opinion does not remedy any of the deficiencies in defendants’ argument.

The majority says that plaintiffs claim of injury is founded on “two layers of speculation” (majority op at 213). The first “layer” is “that the Guidelines will be rigorously enforced as regulations” (majority op at 213). But the question of whether the Guidelines are recommendations or regulations is the question presented by this case on the merits—the question that plaintiff is asking us to decide, and that we are refusing to decide on standing grounds. Plaintiff need not show it would win on the merits in order to establish its standing (see e.g. Society of Plastics Indus, v County of Suffolk, 11 NY2d 761, 780 [1991] [inappropriate to consider the merits in determining standing]; Matter of Dairylea Coop, v Walkley, 38 NY2d 6, 9 [1975] [same]).

The majority’s second “layer[ ] of speculation” is that the Guidelines, if enforced, “will effectively harm CRNAs” (majority op at 213). But to label plaintiff’s expectation of harm as “speculation” is simply to ignore the extensive evidence I described above. The majority does ignore this evidence; and it does not analyze either side’s argument on the “injury in fact” issue in any detail.

The majority says that it is “not at all ‘obvious’ that, even if enforced as regulations, the Guidelines would in fact injure any of plaintiff’s members as claimed.” (Majority op at 213.) It bolsters this remark with a very brief review of the Guidelines, largely ignoring plaintiffs explanations of why the Guidelines are harmful, and swallowing whole, without noting its flaws, defendants’ interpretation of the “who is qualified” phrase. The majority also says that physicians who “do not routinely or ordinarily perform measures now recommended in the Guidelines” might “themselves choose to do so, as opposed to firing CRNAs and hiring anesthesiologists” (majority op at 214). There are two answers to this: First, the record shows that the reason most physicians do not themselves perform these “measures” is that most of them are not qualified to perform them; secondly, even if some do choose to perform the tasks themselves, it is most unlikely, based on the evidence in this record, that so few will turn to anesthesiologists that CRNAs will suffer no injury.

The majority’s conclusion is agnostic: “The recommended procedures might, or might not, actually affect the employment of CRNAs in physicians’ offices.” (Majority op at 214.) The majority’s reasoning seems to suggest that any doubt about the existence of plaintiffs injury is a sufficient reason to deny standing. I do not think this is, or ever has been, the law—and in any event, for the reasons I have stated, I do not think there is any doubt about the injury to the CRNAs here.

The injury in fact issue here is controlled by Matter of Dental Socy. of State ofN.Y. v Carey (61 NY2d 330 [1984]), in which an organization of licensed dentists was held to have standing to challenge a Medicaid dental fee reimbursement schedule. The plaintiff alleged, and the record demonstrated, that among its members were some who would receive less compensation because of the inadequate fee schedule; this was enough to show injury in fact. The present case differs only in that the facts relevant to the injury to plaintiffs members are more complicated; the record, as described above, overwhelmingly demonstrates that at least some CRNAs will lose the opportunity for work if the Guidelines are implemented.

The only case cited by the majority as supporting its holding is Rudder v Pataki (93 NY2d 273 [1999]). In Rudder, an association of social workers and a union of health and human services workers were among the plaintiffs who challenged an Executive Order of the Governor. That order had prevented the Department of Health from instituting a requirement that certain hospital positions be held only by people having a Master’s degree in social work (MSW). Some members of the organizational plaintiffs held MSWs, and the Court acknowledged that those members “will not have the benefit of increased job prospects” because of the Executive Order in issue (id. at 279). But, the Court said, “this does not mean that any one individual member with an MSW has been or will be injured” (id.). The Court concluded that the anticipated injury to the association members was “[a]t best . . . only ‘tenuous’ and ‘ephemeral’ ” (id.).

I admit I find this portion of the Rudder opinion difficult to explain; I can no more understand why people holding MSWs were not injured in Rudder than I can understand how the CRNAs are not injured here. I believe that Rudder was more soundly based on its second alternative holding—that since the organizational plaintiffs represented both social workers with MSWs and social workers without them, “the interests of the organizations . . . are not entirely germane to the relief they seek . . .” (id.). In any event, even if it could be shown that Rudder rests on a logical error, I would not regard that as justification for being equally illogical in the present case.

I find decisions like the present one, and like the first alternative holding in Rudder, to be troubling because they render the law of standing unpredictable. Indeed, I am convinced from a reading of the briefs that no party expected this case to be dismissed on “injury in fact” grounds. Standing is a complicated subject at best, and there is always the danger that it will become a black box, from which a judicial conjurer can extract the desired result at will.-, I do not say that any such thing has happened in this case; but I do say that such things have happened before, and will probably happen again. Today’s decision can only increase that unfortunate likelihood.

Because I am convinced that injury in fact is present and because I believe that CRNAs are within the “zone of interests” protected by the statutes and legal doctrines plaintiff is seeking to enforce (see Dental Socy., 61 NY2d 330 [1984]), I would hold that plaintiff has standing to maintain this action. Since the majority concludes otherwise, the merits of the action are moot, and I do not address them.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur with Chief Judge Kaye; Judge R.S. Smith dissents in a separate opinion.

Order reversed, etc.

      . Defendants do not suggest that the Guidelines are “meaningless” or “redundan[t]” (dissenting op at 219, 220), only that they would not operate as plaintiff projects, underscoring the abstract quality of plaintiffs complaint.

      . Addressing the dissent, we note that standing may indeed be a complicated subject, posing close and difficult issues that divide the Court. Our jurisprudence, however, represents not a black box from which we conjure a desired result, but an effort to articulate, and consistently apply, sound, logical principles that assure that courts’ decisions will be neither abstract nor advisory. That may at times mean dismissing a well-intentioned plaintiff who prematurely commences suit, or agreeing with a defendant who, in its briefs, places greater emphasis on other issues.

      . As to one paragraph of the complaint (1f 30), defendants’ answer first admitted it in part, and referred the court to the Guidelines as to the remainder; then, later, denied the entire paragraph. The reason for this inconsistency is not apparent.

      . This statement is even less impressive than it appears on its face because of the use of the word “require.” It is defendants’ position that the Guidelines are only recommendations and do not “require” anything. Thus Osten’s statement could be literally true, in his own opinion, even if the Guidelines’ “recommendations” include anesthesiologist supervision.

      . Defendants say that the clause requiring a “physician, dentist or podiatrist. . . who is qualified” was included “because the Guidelines also apply to dentists and podiatrists.” This leaves unanswered the question of why the clause was made applicable to physicians. If defendants are correct, the Guidelines should read “by a physician, or by a dentist or podiatrist . . . who is qualified.”

      . I assume that—as the author’s e-mail seems to suggest—some nonanesthesiologists could meet the criteria specified for supervisors in the Guidelines, and that plaintiffs claim that the Guidelines would require an anesthesiologist at all office-based surgeries is therefore overstated. But this does not affect the thrust of plaintiffs “injury in fact” argument—that the Guidelines will compel many physicians to hire anesthesiologists instead of CRNAs.

      . It will be interesting to see whether, having prevailed on their argument that the language is meaningless, defendants will now interpret it that way in practice.

      . The majority’s reference to “rigorous” enforcement is pure surplusage. CRNAs will be injured if the Guidelines are enforced at all—the “rigor” of the enforcement would affect only the extent, not the fact, of their injury.

      . Defendants’ “injury in fact” argument is not only extremely weak, as I pointed out above; it is presented in perfunctory and unenthusiastic fashion. Though “injury in fact” is logically a threshold issue, defendants do not discuss it until after a lengthy argument on the “zone of interests” issue. They then devote three pages of their 46-page brief to “injury in fact.”