author: Rosenblatt, J. Ciparick, J. (dissenting).

text:
    [828 NE2d 964, 796 NYS2d 7]
    New York Telephone Company, Respondent, v Supervisor of Town of Oyster Bay et al., Appellants, et al., Defendant. (And a Third-Party Action.) (Action No. 1.) New York Telephone Company, Respondent, v Supervisor of Town of Oyster Bay et al., Appellants, et al., Defendant. (And a Third-Party Action.) (Action No. 2.)
    Argued February 10, 2005;
    decided March 31, 2005

      POINTS OF COUNSEL

      Anthony J. LaMarca, P.C., Mineola (Anthony J. LaMarca of counsel), and Murphy, Bartol & O’Brien, LLP (Diane K. Mendez of counsel), for appellants.
    I. The statutory definition of a special ad valorem levy was given a novel and unnecessary interpretation by the courts below. (New York Tel. Co. v State of New York, 169 App Div 310, 218 NY 738; Matter of New York Tel. Co., 257 App Div 415, 282 NY 667; Sysco Corp. v Town of Hempstead, 133 AD2d 751; O’Flynn v Village of E. Rochester, 292 NY 156; Matter of New York Tel. Co. v Common Council of City of Rye, 43 Misc 2d 668, 25 AD2d 682; Applebaum v Town of Oyster Bay, 81 NY2d 733; Long Is. Light. Co. v Office of Supervisor of Town of N. Hempstead, 233 AD2d 300; Matter of Sperry Rand Corp. v Town of N. Hempstead, 53 Misc 2d 970; Landmark Colony at Oyster Bay Homeowners’ Assn, v Town of Oyster Bay, 145 AD2d 542.) II. The rationale of the Appellate Division decision imperils other special ad valorem levies and unnecessarily jeopardizes a traditional method of financing the costs of local government. (New York Tel. Co. v State of New York, 169 App Div 310, 218 NY 738; Matter of New York Tel. Co. v Common Council of City of Rye, 43 Misc 2d 668, 25 AD2d 682.)

      Cullen and Dykman Bleakley Platt LLP, Brooklyn (Peter J. Mastaglio, Karen I. Levin, Robert J. Sorge and Jo-Ellen P Holbrook of counsel), for respondent.
    I. The Supreme Court and Second Department correctly determined that special ad valorem levies for refuse and garbage collection services may not be imposed upon respondent’s mass property because such property cannot benefit from such services. (Long Is. Light. Co. v Office of Supervisor of Town of N. Hempstead, 233 AD2d 300, 89 NY2d 1029; Applebaum v Town of Oyster Bay, 81 NY2d 733; Sysco Corp. v Town of Hempstead, 227 AD2d 544; Matter of Sperry Rand Corp. v Town of N. Hempstead, 53 Misc 2d 970, 29 AD2d 968, 23 NY2d 666; Landmark Colony at Oyster Bay Homeowners’ Assn. v Town of Oyster Bay, 145 AD2d 542; Barclay Townhouse at Merrick II Corp. v Town of Hempstead, 289 AD2d 351.) II. Appellants’ imposition of special ad valorem levies on respondent’s mass property is unconstitutional. (Myles Salt Co. v Board of Commrs. of Iberia & St. Mary Drainage Disk, 239 US 478.) III. The Supreme Court and Second Department correctly determined that an indirect or general benefit is insufficient to support the imposition of special ad valorem levies for refuse and garbage collection services. (Applebaum v Town of Oyster Bay, 81 NY2d 733; O’Flynn v Village of E. Rochester, 292 NY 156; Matter of New York Tel. Co. v Common Council of City of Rye, 43 Misc 2d 668, 25 AD2d 682; Long Is. Light. Co. v Office of Supervisor of Town of N. Hempstead, 233 AD2d 300; Sysco Corp. v Town of Hempstead, 133 AD2d 751; Matter of New York Tel. Co., 257 App Div 415, 282 NY 667; New York Tel. Co. v State of New York, 169 App Div 310, 218 NY 738.) IV The Supreme Court and Second Department correctly relied upon the Long Island Lighting Company decisions. (Ryan v New York Tel. Co., 62 NY2d 494; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Matter of Halyalkar v Board of Regents of State of N.Y., 72 NY2d 261.) V. The Supreme Court and Second Department correctly determined that respondent commenced the appropriate action within the applicable limitation period. (Niagara Mohawk Power Corp. v City School Disk of City of Troy, 59 NY2d 262; City of Rochester v Chiarella, 65 NY2d 92, cert denied sub nom. Quality Packaging Supply Corp. v City of Rochester, 464 US 828; Kahal Bnei Emunim & Talmud Bnei Simon Israel v Town of Fallsburg, 159 Misc 2d 1045; Niagara Mohawk Power Corp. v City School Dist of City of Troy, 59 NY2d 262; People ex rel. New York Cent. R.R. Co. v Limburg, 283 NY 344; Applebaum v Town of Oyster Bay, 81 NY2d 733; Sysco Corp.

      v Town of Hempstead, 227 AD2d 544; Long Is. Light. Co. v Office of Supervisor of Town of N. Hempstead, 233 AD2d 300; Landmark Colony at Oyster Bay Homeowners’ Assn. v Town of Oyster Bay, 145 AD2d 542; Matter of Sperry Rand Corp. v Town of N. Hempstead, 53 Misc 2d 970, 29 AD2d 968, 23 NY2d 666.) VI. The Supreme Court and Second Department properly rejected appellants’ hypothetical ramifications. (Matter of Cohalan v Gioia, 88 AD2d 722; New York Tel. Co. v Nassau County, 297 AD2d 663, 1 NY3d 485; Manion v Pan Am. World Airways, 55 NY2d 398; Jandreau v La Vigne, 170 AD2d 861; McKesson Corp. v Division of Alcoholic Beverages & Tobacco, Dept, of Bus. Regulation of Fla., 496 US 18; McIntosh v Niederhoffer, Cross & Zeckhauser, 106 AD2d 774, 64 NY2d 608; De Lisa v Amica Mut. Ins. Co., 59 AD2d 380; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Foss v City of Rochester, 65 NY2d 247; Matter of New York Tel. Co. v Nassau County, 267 AD2d 629, 95 NY2d 756.)
    A. Kevin Crawford, Albany, for Association of Towns of the State of New York, amicus curiae.
    I. Respondents are time-barred from contesting the determination of the Town Board of the Town of Oyster Bay that their properties are benefited by inclusion in the garbage and refuse collection districts. (Matter of Palmer v Town of Kirkwood, 288 AD2d 540; Herzog v Town of Thompson, 251 AD2d 917; Gusdore Corp. v Michaels, 13 Misc 2d 762, 8 AD2d 663, 9 AD2d 601, 7 NY2d 706.) II. Except as otherwise provided in sections 194 and 195 of the Town Law, neither the Town Law nor the Real Property Tax Law affords an administrative procedure to review a claim that property is not “benefited” by a special district improvement or service. III. Even in the case of a special district financed on the basis of a “special assessment,” rather than a “special ad valorem levy,” once property has been determined to be “benefited,” an aggrieved property owner’s remedy is to challenge the “amount of the benefit” to the property, not the fact that it is “benefited.”
   OPINION OF THE COURT

Rosenblatt, J.

New York Telephone Company (NYTC) owns and maintains telephone lines, wires, cables, poles, supports and enclosures for electrical conductors within the Town of Oyster Bay. The equipment, referred to as “mass property,” is situated on public and private land and is within the Town’s refuse and garbage district. NYTC does not, however, own any of the land on, over or under which this equipment is located. The mass properties are not amenable to human occupation, produce no garbage or refuse of any kind, and neither require nor receive garbage collection. Nevertheless, the Town subjects them to a special ad valorem levy (i.e., a levy assessed as a percentage of the value of the mass property) for garbage collection. When NYTC’s equipment sits on privately owned land, the Town also imposes the levy on the private fee owner, based on the land’s value.

Claiming that its mass properties received no benefit from municipal garbage collection and that the Town’s levy therefore violates Real Property Tax Law § 102 (14), NYTC initiated two related actions in 1998 and 1999, seeking a judgment declaring the Town’s levy on its mass properties for garbage collection illegal and enjoining the continued imposition of such levies. Further, NYTC argued that it was entitled to a refund, with interest, for the levies it paid in tax years 1995 through 1999, as well as a trial to calculate its damages for tax years 1992, 1993 and 1994.

Supreme Court granted summary judgment to NYTC, invalidating the Town’s levy and enjoining future garbage collection levies against NYTC’s mass properties. It also directed the Town to refund with interest any levies collected on the mass properties between tax years 1995 through 1999, and determined that the refund for tax years 1992 through 1994 would be calculated at trial. Relying on RPTL 102 (14) and Applebaum v Town of Oyster Bay (81 NY2d 733 [1992]), the court concluded that the Town was barred from imposing a special ad valorem levy on a property that could not be benefited by the municipal service funded by the levy. NYTC’s mass properties could receive no benefit from municipal garbage collection, the court ruled, because they produced no garbage or refuse. In so finding, the court rejected the Town’s contention that NYTC’s mass properties were benefited as part of an “integrated whole” with other properties owned by NYTC. Finally, Supreme Court determined that, because NYTC was challenging the Town’s authority to impose the levy on its mass properties, it was not obliged to exhaust its administrative remedies and commence a proceeding under CPLR article 78.

Advancing the same reasoning as Supreme Court, the Appellate Division affirmed (6 AD3d 511 [2004]) and certified the appeal to this Court. We affirm and hold that RPTL 102 (14) does not authorize the Town to impose a special ad valorem levy for garbage collection on NYTC’s mass properties because they do not and cannot receive any direct benefit from that municipal service.

Special ad valorem levies represent a key vehicle for financing garbage collection in a refuse or garbage collection district (see RPTL 102 [16]). As defined by RPTL 102 (14), “ ‘[s]pecial ad valorem levy’ means a charge imposed upon benefited real property in the same manner and at the same time as taxes for municipal purposes to defray the cost, including operation and maintenance, of a special district improvement or service, but not including any charge imposed by or on behalf of a city or village” (emphasis added).

Undisputedly, NYTC’s mass properties constitute “real property” under the statute. RPTL 102 (12) (d) states that “[r]eal property” includes “all telephone and telegragh lines, wires, poles, supports and inclosures for electrical conductors upon, above and underground” when “owned by a telephone company.” That telephone poles, wires and the like constitute real property does not mean, however, that they fall into the category of benefited real properties. By limiting special ad valorem levies to “benefited” properties, the Legislature obviously contemplated that there is some class of real property that, for the purposes of section 102 (14), is not benefited.

Our decisional law establishes that, for real property to be “benefited,” it must be capable of receiving the service funded by the special ad valorem levy. Thus, in Applebaum v Town of Oyster Bay (81 NY2d 733 [1992]), we considered the legality of Oyster Bay’s imposing a special ad valorem levy for garbage collection on a property that, because of the operation of a covenant, could not receive such services from the municipality. Reasoning that Oyster Bay “does not provide and does not intend to provide the residential property owners with the benefit of garbage collection services,” the Court held that the levy imposed by the Town was invalid (id. at 735; see also Landmark Colony at Oyster Bay Homeowners’ Assn. v Town of Oyster Bay, 145 AD2d 542 [2d Dept 1988]; Barclay Townhouse at Merrick II Corp. v Town of Hempstead, 289 AD2d 351 [2d Dept 2001]).

As the Appellate Division correctly recognized, the logic of Applebaum dictates our result. Although here, no preexisting legal agreement bars NYTC’s mass properties from receiving garbage collection from the Town, the inherent characteristics of the subject properties preclude them from receiving such services. The dissent would distinguish Applebaum on the ground that the taxpayers in that case were required to pay both the special ad valorem levy plus the cost of private garbage collection, whereas here NYTC is responsible only for the levy, from which “it derives an indirect benefit” (dissenting op at 397). This is a distinction without a difference. Our focus is on whether a property is capable of receiving a benefit, not what special accommodations an owner must make when a property is denied the municipal service. In this critical sense, Applebaum and the present case are on all fours. Moreover, even under the dissent’s interpretation of RPTL 102 (14), the property at issue in Applebaum received the same—if not greater— degree of indirect “benefit” from municipal garbage collection as NYTC’s mass properties here.

In determining whether a property is benefited—i.e., whether it is capable of receiving the municipal service funded by the special ad valorem levy—we look to the innate features and legally permissible uses of the property, not the particularities of its owners or occupants or the state of the property at a fixed point in time. As a class of property, telephone poles can never produce or require municipal garbage collection. For the purposes of a special ad valorem levy to finance garbage collection, they therefore are not benefited.

By contrast, a lot that is vacant, but otherwise amenable to development, would be “benefited.” Although undeveloped, there is no legal or practical disability to the lot’s one day receiving garbage collection. Likewise, a hypothetical home whose owners never produced refuse or garbage of any kind would, for the purposes of RPTL 102 (14), be directly benefited by municipal garbage collection. By the same token, home or business owners could not opt out of a special ad valorem levy funding the local sewer or water district simply by virtue of having a septic tank or well on their properties. The same logic would apply to others who would seek to avoid special ad valorem levies under analogous circumstances. In determining whether a property is capable of receiving a benefit, our focus is on the innate characteristics of an individual property as representative of a species of property (in our last example, homes), not the conditions or proclivities of individual owners.

The species of real property at issue here cannot, even theoretically, produce garbage. NYTC’s mass properties therefore are incapable of receiving any direct benefit from the Town’s garbage and refuse district. Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Ciparick, J. (dissenting).

For essentially three reasons, I respectfully dissent and would vote to reverse.

A special ad valorem levy is defined as “a charge imposed upon benefited real property ... to defray the cost, including operation and maintenance, of a special district improvement or service” (RPTL 102 [14] [emphasis added]). The Town of Oyster Bay imposes a number of such ad valorem levies on plaintiff New York Telephone Company (NYTC), as owner of mass properties in the Town. Indeed, NYTC itself pays several ad valorem levies that contribute to the operation and maintenance of special districts, including a sewage collection district, sewage disposal district, public parking district, lighting district, park and drainage district, and a garbage and refuse collection district. Thus far, NYTC has elected to challenge only the ad valorem levy associated with the garbage and refuse collection district within a specific geographic area.

First, the narrow interpretation that both the majority and the lower courts give to the term “benefited” is unwarranted. These levies finance varying services associated with the operation and maintenance of “special districts” (RPTL 102 [16]). These special districts are established expressly to “benefit the health, welfare, safety or convenience of the inhabitants of such district or to benefit the real property within such district” (RPTL 102 [16]; see also Town Law § 202 [3]). The mass properties owned by plaintiff are real property as defined by RPTL 102 (12) (d) and subject, like all other real property within the special district, to special ad valorem levies.

While telephone poles may not produce or require municipal garbage collection, the Legislature did not indicate that a direct or actual benefit was necessary to trigger this type of levy. Instead, in its definition, it required only that the property at issue be “benefited” (RPTL 102 [14]). Moreover, the validity of a tax does not “depend on the receipt of some special benefit” (O’Flynn v Village of E. Rochester, 292 NY 156, 165 [1944]; see also Memphis & Charleston Ry. v Pace, 282 US 241, 246 [1931]), and an ad valorem tax “is payable regardless of whether the property is used or not” (Ampco Print-Advertisers’ Offset Corp. v City of New York, 14 NY2d 11, 22 [1964]).

A reading of RPTL 102 (14), in conjunction with other relevant sections of both the Real Property Tax Law and the Town Law, makes clear that an ad valorem levy, by definition, requires only an indirect or general benefit to the subject property. The mass properties at issue here are cleárly benefited within the meaning of RPTL 102 (14). An ad valorem levy cannot be based on the commensurate value of services; instead, it is by definition a levy based on the value of the property itself (see RPTL 102 [14]).

By contrast, a “[s]pecial assessment” is levied in “proportion to the benefit received” (RPTL 102 [15]). This language makes clear that there must be a direct benefit supporting a special assessment. Real Property Tax Law § 102 (14), however, does not include an analogous qualification in its definition of an ad valorem levy and the majority obliterates the distinction between the two.

The majority, in requiring the subject property to receive a “direct benefit from the Town’s garbage and refuse district,” unnecessarily and unjustifiably restricts the availability of, and a town’s ability to impose, an ad valorem levy on real property located within a special district (majority op at 395). Moreover, the majority’s restrictive reading of this distinct tax provision undermines the Town’s ability to operate and maintain necessary special districts. The subject mass properties at issue here, even if not producing trash or refuse, nevertheless are part of the geographically designated special district that requires this relevant and necessary service. Therefore, the telephone poles, wires, cables, lines, supports and enclosures that constitute NY-TC’s mass property are part of the special district, duly constituted by the Town Board pursuant to Town Law § 194. As such, it is clear that this property derives a benefit from the Town’s general maintenance and operation of the district. For example, at a minimum, the Town’s removal of trash from the district preserves the value and viability of real property within the district. Clearly, a well maintained and trash-free district benefits NYTC’s mass properties.

Second, today’s decision is a significant step beyond Applebaum v Town of Oyster Bay (81 NY2d 733 [1992]). There, a covenant prohibited plaintiff owners from receiving any garbage collection services from the Town, yet the Town imposed a special ad valorem levy for garbage collection—thus requiring plaintiffs to pay twice for essential garbage collection services. Here, NYTC is only responsible for the ad valorem levy for a garbage and refuse collection district from which it derives an indirect benefit. This indirect benefit is sufficient to support the imposition of the levy.

Third, the majority looks exclusively to the nature or inherent characteristics of the subject property to determine whether any direct benefit is evident. It is inconsequential, however, that the “species of real property at issue here cannot, even theoretically, produce garbage” (majority op at 395). The majority attempts to limit its holding to the subject garbage collection district but fails to distinguish how its logic applies exclusively to garbage collection districts, and not to the numerous other districts that depend on ad valorem levies for their maintenance.

The property is likewise incapable of producing sewage, yet NYTC pays an ad valorem levy in support of the sewage district. Similarly, telephone poles and wires, for example, have no need for a public park, yet NYTC pays a distinct levy in support of this special district. The mass properties will never directly benefit from the availability of public parking in the district, or from an efficient drainage system, yet NYTC, at least thus far, willingly pays an ad valorem levy for each of these services.

In short, the majority’s reasoning invalidating this ad valorem levy, and requiring a “direct benefit” to the subject real property, has potentially far-reaching consequences, as the majority’s rule jeopardizes a traditional method of financing costs of local government.

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

Order affirmed, etc.

      . Pursuant to Town Law § 198 (9) (a), the creation of a refuse and garbage district enables a town to provide or contract for “the collection and/or resource recovery or disposition, or any combination thereof of garbage, ashes, rubbish and other waste matter in such district.”

      . The dissent argues that a property may be “benefited,” and therefore be made subject to possible special ad valorem levies, if it receives an “indirect or general benefit” from the service funded by the levy (dissenting op at 396). This interpretation of “benefited” renders the word meaningless. If an indirect benefit is sufficient for the purposes of RPTL 102 (14), every conceivable species of real property could be said to benefit from garbage removal, or any other municipal service. Any given municipal service will always exert a positive influence on a property’s value—an indirect benefit under the dissent’s reasoning. The Legislature’s use of the modifier “benefited” plainly implies that there is some class of property that is not benefited. The dissent’s interpretation of the statute would render “not-benefited real property” a nullity, and thereby defeat the legislative intent. Further, its construction disregards the plain distinction between a special ad valorem levy and a general tax (see RPTL 102 [20] [no benefit requirement]).

      . In addition to special ad valorem levies, a town may also impose user fees to fund garbage and refuse collection. Town Law § 198 (9) (b) authorizes a town to establish “charges, fees or rates to be paid by users for refuse and garbage collection service and may provide for the payment of said charges in advance.” The statute notes that “[s]uch charges, fees or rates may be based upon the volume of refuse, garbage, ashes, rubbish and other waste matter collected, making a proper allowance for commercial or industrial establishments, the number of calls per month, the number of persons or families served in the district, or upon any other equitable basis as the town board may determine.”

      . RPTL 102 (16) explains that a “[s]pecial district” is a “town or county improvement district, district corporation or other district established for the purpose of carrying on, performing or financing one or more improvements or services intended to benefit the health, welfare, safety or convenience of the inhabitants of such district or to benefit the real property within such district.” In a special district, real property is “subject to special ad valorem levies or special assessments for the purposes for which such district was established” (id.).

      . We disagree with the dissent’s suggestion that our decision today “obliterates the distinction” between special assessments, which are levied in proportion to the benefit received (see RPTL 102 [15]), and special ad valorem levies (dissenting op at 396). Our analysis neither contemplates this result nor demands a strict proportionality review of special ad valorem levies. We note that, in extremely rare cases, a town’s severe restrictions on the property owner’s use of the municipal service funded by the special ad valorem levy may entitle the property owner to relief (see Matter of Sperry Rand Corp. v Town of N. Hempstead, 53 Misc 2d 970 [1967], affd 29 AD2d 968 [1968], affd 23 NY2d 666 [1968]). We stress, however, that a special ad valorem levy may be validly imposed on a property—in spite of municipal use restrictions—as long as the restrictions do “not reduce the benefit to the [property owner] ‘to the point where it is, in effect, nonexistent’ ” (Sysco Corp. v Town of Hemp-stead, 227 AD2d 544, 545 [2d Dept 1996], lv denied 89 NY2d 804 [1996]).

      . The dissent argues that our result on this appeal will engender adverse, far-reaching fiscal consequences for municipalities. Neither the Town nor the Association of Towns of the State of New York, as amicus, has advanced this claim in any but the most perfunctory manner, and for good reason. Our decision today does nothing to upset the present, “traditional method of financing costs of local government” (dissenting op at 398), and it should not be so construed. As both a conceptual and statutory matter, special ad valorem levies are utterly distinct from general property taxes. Our analysis focuses exclusively on the meaning of the word “benefited” in RPTL 102 (14), which concerns only the special ad valorem levy. We are unwilling to embrace a strained construction of the Legislature’s plain language solely on the basis of the Town’s unsubstantiated or exaggerated claims. If, in the wake of Applebaum, the Town has been relying on an ultra vires revenue collection practice, and has continued to do so after Supreme Court and the Appellate Division correctly interpreted the statute and disapproved the practice, any claimed hardship is self-created.

      . We note that NYTC’s challenge here constitutes a plenary action attacking the Town’s authority to impose special ad valorem levies for garbage and refuse collection on the subject mass properties, and it is therefore not time-barred under Town Law § 195 (2) (see Niagara Mohawk Power Corp. v City School Dist. of City of Troy, 59 NY2d 262, 269 [1983]).

      . Black’s defines an ad valorem tax as “[a] tax imposed proportionally on the value of something (esp. real property), rather than on its quantity or some other measure” (Black’s Law Dictionary 1496 [8th ed 2004]).

      . Requiring only an indirect benefit does not, as the majority suggests, render the term “benefited” meaningless (majority op at 392 n 2). To the contrary, the term is used consistently with Town Law § 194 (1) (b) which requires a finding of “benefited” property prior to establishment of the district itself. The term is used to ensure that only real property within a special district will be subject to the Town’s special ad valorem levy. Therefore, contrary to the majority’s assertion, the term is not superfluous and does not cover “every conceivable species of real property” (majority op at 392 n 2). Only real property that exists within the geographically designated special district is benefited within the meaning of RPTL 102 (14).

      . There may come a time when the property itself is abandoned and becomes refuse.


source: Caselaw Access Project

author: R.S. Smith, J.

license: Public Domain

text:
    [828 NE2d 614, 795 NYS2d 511]
    Arlene Toefer et al., as Coguardians of Eric Casey, Appellants, v Long Island Rail Road, Respondent and Third-Party Plaintiff. Jana Construction Co., Inc., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (And a Fourth-Party Action.) Robert V. Marvin et al., Appellants, v Korean Air Inc. et al., Respondents, et al., Defendant.
    Argued February 15, 2005;
    decided April 5, 2005

      POINTS OF COUNSEL

      Sacks and Sacks, LLP, New York City (Scott N. Singer, Kenneth Sacks and Daniel Weir of counsel), for appellants in the first above-entitled action.
    I. Insofar as the facts established that the accident occurred because of defendant’s failure to furnish proper hoists, guardrails and safety devices, the Appellate Division erred in dismissing plaintiffs complaint. (Quigley v Thatcher, 207 NY 66; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Koenig v Patrick Constr. Corp., 298 NY 313; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Bland v Manocherian, 66 NY2d 452; Gordon v Eastern Ry. Supply, 82 NY2d 555; Panek v County of Albany, 99 NY2d 452; Watson v Hudson Val. Farms, 276 AD2d 1004; Moran v Corporate Prop. Invs., 251 AD2d 558.) II. Upon the undisputed proof that hoists, guardrails and safety equipment were not provided, plaintiffs are entitled to judgment for all injuries proximately caused. (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Brant v Republic Steel Corp., 91 AD2d 841; Phillips v Flintkote Co., 89 AD2d 724; Rea v Elia Bldg. Co., 79 AD2d 1102; Duda v Rouse Constr. Corp., 32 NY2d 405; Joyce v Rumsey Realty Corp., 17 NY2d 118; Heath v Soloff Constr., 107 AD2d 507; Hagins v State of New York, 81 NY2d 921; Klapa v O&Y Liberty Plaza Co., 218 AD2d 635; Boice v Jegarmont Realty Corp., 204 AD2d 674.) III. The IAS court erred in dismissing plaintiffs’ claim under Labor Law § 241 (6). (Rizzuto v Wenger Contr. Co., 91 NY2d 343; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Wood v Lucy, Lady Duff-Gordon, 222 NY 88.)

      Cerussi & Spring, White Plains (Peter Riggs, Ronald G. Crispi and David C. Zegarelli of counsel), for respondent in the first above-entitled action.
    I. As the unloading of the flatbed truck did not present an extraordinary elevation-related hazard within the scope of Labor Law § 240 (1), plaintiffs’ Labor Law § 240 (1) claim was properly dismissed. (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526; Martinez v City of New York, 93 NY2d 322; Karaktin v Gordon Hillside Corp., 143 AD2d 637; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Abbatiello v Lancaster Studio Assoc., 3 NY3d 46; Groves v Land’s End Hous. Co., 80 NY2d 978; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Misseritti v Mark IV Constr., 86 NY2d 487; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841.) II. Eric Casey’s injuries were not proximately caused by a violation of Labor Law § 240 (1). (Felker v Corning Inc., 90 NY2d 219; Weininger v Hagedorn & Co., 91 NY2d 958; Duda v Rouse Constr. Corp., 32 NY2d 405; Gordon v Eastern Ry. Supply, 82 NY2d 555; Dilluvio v City of New York, 95 NY2d 928.) III. Even if Labor Law § 240 (1) applies, plaintiffs are not entitled to partial summary judgment. (Blake v Neighborhood Hous. Sews, of N.Y. City, 1 NY3d 280; Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853; Alava v City of New York, 246 AD2d 614.) IV Plaintiffs’ Labor Law § 241 (6) cause of action, predicated on alleged violations of subparts 23-6 and 23-8 of the Industrial Code (12 NYCRR), was properly dismissed. (Rizzuto v Wenger Contr. Co., 91 NY2d 343; Cardenas v American Ref-Fuel Co. of Hempstead, 244 AD2d 377; Herman v Lancaster Homes, 145 AD2d 926; Kaczmarek v Bethlehem Steel Corp., 884 F Supp 768; Violette v Armonk Assoc., L.P., 849 F Supp 923; Soles v Eastman Kodak Co., 162 Misc1 2d 406, 216 AD2d 973; Flihan v Cornell Univ., 280 AD2d 994; Smith v Homart Dev. Co., 237 AD2d 77; Aloi v Structure-Tone, Inc., 2 AD3d 375; Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892.)

      Montfort, Healy, McGuire & Salley, Garden City (Michael A. Baranowicz and Donald S. Neumann, Jr. of counsel), for Jana Construction Co., Inc., third-party defendant-respondent in the first above-entitled action.
    I. The Appellate Division correctly determined that the task of unloading a flatbed truck is not an elevation-related risk simply because there is a difference in elevation between the ground and the truck bed. (Rocovich v Consolidated Edison Co., 78 NY2d 509; Groves v Land’s End Hous. Co., 80 NY2d 978; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Dilluvio v City of New York, 264 AD2d 115, 95 NY2d 928; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Bond v York Hunter Constr., 95 NY2d 883.) II. Unloading a flatbed truck under the circumstances present herein is not a covered activity. (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878; Panek v County of Albany, 99 NY2d 452; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Groves v Land’s End Hous. Co., 80 NY2d 978; Blake v Neighborhood Hous. Servs, of N.Y. City, 1 NY3d 280; Rocovich v Consolidated Edison Co., 78 NY2d 509; Amo v Little Rapids Corp., 268 AD2d 712; Joblon v Solow, 91 NY2d 457; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Narducci v Manhasset Bay Assoc., 96 NY2d 259.) III. There can be no claim premised on a falling object when the item was deliberately dropped. (Narducci v Manhasset Bay Assoc., 96 NY2d 259; Bailey v Young Men’s Christian Assn. of Capital Dist., 267 AD2d 642; Roberts v General Elec. Co., 97 NY2d 737; Corey v Gorick Constr. Co., 271 AD2d 911; Isabell v U.W. Marx, Inc., 299 AD2d 701; Belcastro v

      Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744; Matter of Fischer v State of New York, 291 AD2d 815; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509; Fegundes v New York Tel. Co., 285 AD2d 526.) IV The Industrial Code rules relied on by plaintiffs do not require use of a mobile crane or chain hoist. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rizzuto v Wenger Contr. Co., 91 NY2d 343; Francis v Aluminum Co. of Am., 240 AD2d 985; McCole v City of New York, 221 AD2d 605; Rice v Board of Educ. of City of N.Y., 302 AD2d 578; Jacome v State of New York, 266 AD2d 345; Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892; Lawyer v Hoffman, 275 AD2d 541; McGrath v Lake Tree Vil. Assoc., 216 AD2d 877; Ares v State of New York, 80 NY2d 959.)

      Faust Goetz Schenker & Blee LLP, New York City (Erika C. Aljens of counsel), for Harris-Camden Terminal Company, third-party defendant-respondent in the first above-entitled action.
    I. The Appellate Division decision dated September 29, 2003 should be affirmed because plaintiffs’ ward was not exposed to an elevation-related risk, there was no failure of safety equipment and he was not struck by an improperly hoisted object. II. The lower court decision should also be affirmed because the accident came about solely due to the negligence of a coemployee of the injured ward in the use of a motor vehicle. (Heritage v Van Patten, 59 NY2d 1017; Macchirole v Giamboi, 97 NY2d 147; Naso v Lafata, 4 NY2d 585; Rauch v Jones, 4 NY2d 592; Rose v Gelco Corp., 261 AD2d 381; Chiriboga v Ebrahimoff 281 AD2d 353; Black v Consolidated Freightways Corp. of Del., 219 F Supp 2d 243; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Brown v Two Exch. Plaza Partners, 76 NY2d 172; Allen v Cloutier Constr. Corp., 44 NY2d 290.) III. In the alternative, if the decision of the Appellate Division is reversed, this matter should be remanded back to the Appellate Division for a determination of the validity of the order granting leave to amend the third-party complaint. (Ziecker v Town of Orchard Park, 75 NY2d 761.)

      Fiedelman & McGaw, Jericho (Jeanne A. Cygan, Andrew Zajac, Dawn C. DeSimone, Elizabeth Anne Bannon and Rola L. Platt of counsel), for Defense Association of New York, Inc., amicus curiae in the first above-entitled action.
    I. Manually loading or off loading beams from the bed of a flatbed truck is not the type of “special hazard” entitling plaintiffs’ ward to the extraordinary protection of Labor Law § 240 (1). (Ross v Curtis-

      Palmer Hydro-Elec. Co., 81 NY2d 494; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Phelan v State of New York, 238 AD2d 882; Narrow v Crane-Hogan Structural Sys., 202 AD2d 841; Cabezas v Consolidated Edison, 296 AD2d 522; Klimowicz v Furer, 246 AD2d 330; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Tillman v Triou’s Custom Homes, 253 AD2d 254; Corey v Gorick Constr. Co., 271 AD2d 911.) II. Inasmuch as the alleged dangerous condition arose from the contractor’s methods, and Long Island Rail Road exercised no supervisory control over the operation, liability may not attach under Labor Law § 200. (Russin v Picciano & Son, 54 NY2d 311; Comes v New York State Elec. & Gas Corp., 82 NY2d 876.)

      Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), and Christopher S. Olson, Huntington, for appellants in the second above-entitled action.
    I. Plaintiff has established as a matter of law a violation of Labor Law § 240 (1). (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Joblon v Solow, 91 NY2d 457; Panek v County of Albany, 99 NY2d 452; Gordon v Eastern Ry. Supply, 82 NY2d 555; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Groves v Land’s End Hous. Co., 80 NY2d 978; Rocovich v Consolidated Edison Co., 78 NY2d 509; Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974; Felker v Corning Inc., 90 NY2d 219.) II. Plaintiff has established as a matter of law that the violation of Labor Law § 240 (1) by defendants was a proximate cause of his injuries. (Gordon v Eastern Ry. Supply, 82 NY2d 555; Serpe v Eyris Prods., 243 AD2d 375; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Laquidara v HRH Constr. Corp., 283 AD2d 169; Sherman v Piotrowski Bldrs., 229 AD2d 959; Noble v AMCC Corp., 277 AD2d 20; Gontarzewski v City of New York, 257 AD2d 394; Musselman v Gaetano Constr. Corp., 277 AD2d 691; Tate v Clancy-Cullen Stor. Co., 171 AD2d 292; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280.)

      Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondents in the second above-entitled action.
    Plaintiffs incident did not fall under the protection of Labor Law § 240 and it was correctly dismissed. (Bond v York Hunter Constr., 95 NY2d 883; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Martinez v City of New York, 93 NY2d 322; Perchinsky v State of New York, 232 AD2d 34; Rocovich v Consolidated Edi

      son Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Misseritti v Mark IV Constr. Co., 86 NY2d 487; Dilluvio v City of New York, 95 NY2d 928; Tillman v Triou’s Custom House, 253 AD2d 254.)
   OPINION OF THE COURT

R.S. Smith, J.

We decide in these cases that workers who fall when working on, or getting down from, the surface of a flatbed truck that is between four and five feet off the ground may not recover under Labor Law § 240 (1), because their injuries did not result from the sort of “elevation-related risk” that is essential to a cause of action under that section.

Facts and Procedural History

A. Toefer v Long Island Rail Road

Toefer is brought by the guardians of Eric Casey, who suffered a disastrous accident while working on the rehabilitation of a Long Island Rail Road bridge. Casey and another man were assigned to unload large steel, lattice-type beams from a flatbed truck. They stood on the surface of the truck’s trailer, some four feet above the ground, inserted eight-foot wooden poles into the beams, and pried the beams off by using the poles as levers. When the beams fell to the ground, the levers fell with them.

Casey and his coworker pushed one beam off the truck without incident. When the next beam was unloaded, a wooden lever, for some reason that has not been explained, flew back at Casey with enormous force, striking him on the head and propelling him backwards, over the beams behind him that had not yet been unloaded, to the ground on the other side of the truck. He became a paraplegic as a result.

Casey’s guardians sued the Long Island Rail Road, alleging among other things violations of Labor Law § 240 (1) and § 241 (6). The railroad claimed over against Casey’s employer, which in turn impleaded several other parties. On a motion and cross motions for summary judgment, Supreme Court dismissed all plaintiffs’ claims except those arising under Labor Law § 240 (1). The Appellate Division modified that ruling by ordering all of plaintiffs’ claims dismissed. We granted plaintiffs’ motion for leave to appeal, and now affirm.

B. Marvin v Korean Air Inc.

Robert Marvin was employed, by a siding subcontractor that was working on the construction of a cargo building for Korean Air Inc. at Kennedy Airport. Some paneling material was brought to the construction site on a flatbed truck; the trailer of the truck was between four and five feet off the ground. Marvin was assigned to cut the steel straps that secured the material to the truck. No ladder was present. Marvin climbed up on the truck and performed his task. When he was finished, he crouched and began to step off the truck, but his foot became tangled in a safety harness he was wearing and he fell, breaking his ankle.

Marvin and his wife sued Korean Air and several other defendants, alleging among other things a violation of Labor Law § 240 (1). Supreme Court dismissed all plaintiffs’ claims, and the Appellate Division affirmed. We granted plaintiffs’ motion for leave to appeal, and now affirm.

Discussion

In this Court, plaintiffs in both Toefer and Marvin seek reinstatement of their claims under Labor Law § 240 (1). Plaintiffs in Toefer also seek reinstatement of their Labor Law § 241 (6) claim. We conclude that both the section 240 (1) claims and the section 241 (6) claim were properly dismissed.

A. Labor Law § 240 (1)

Labor Law § 240 (1) provides in pertinent part:

“All contractors and owners and their agents, . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

In Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991]), we discussed the occupational hazards against which this statute was directed. We pointed out that, while the hazards themselves are not spelled out in the statute, they can be inferred from the “protective means” set forth in the statute “for the hazards’ avoidance”—scaffolding, hoists, stays, ladders and so forth (id. at 513). We explained:

“The various tasks in which these devices are customarily needed or employed share a common characteristic. All entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured. The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. It is because of the special hazards in having to work in these circumstances, we believe, that the Legislature has seen fit to give the worker the exceptional protection that section 240 (1) provides.” (Id. at 514.)

Applying this reasoning in Rocovich, we held that a worker who had been injured when he slipped into a 12-inch-deep trough carrying a stream of hot oil had not suffered injury from an elevation-related risk, and so was not within the protection of the statute.

The above-quoted language from Rocovich identifies two distinct sources of elevation-related risk: “the relative elevation at which the task must be performed” and the elevation “at which materials or loads must be positioned or secured.” In Narducci v Manhasset Bay Assoc. (96 NY2d 259, 267 [2001]), we described cases involving these risks as “falling worker” and “falling object” cases respectively. But, as we said in Narducci, “[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1)” (id.). In some cases involving falls of workers and objects, we have held that where a plaintiff “was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1),” the plaintiff cannot recover under the statute (Rodriguez v Margaret Tietz Ctr. for Nursing Care, Inc., 84 NY2d 841, 843 [1994]).

We have previously decided two Labor Law § 240 (1) cases involving falls from trucks—though not flatbed trucks—in which we held that the elevation-related risks contemplated by the statute were not present. In Bond v York Hunter Constr. (95 NY2d 883 [2000]) we denied recovery to a worker who, getting down from the cab of a construction vehicle, placed his foot on the vehicle’s track to use it as a step, slipped and fell three feet to the ground. We held as a matter of law that “the risk of alighting from [a] construction vehicle was not an elevation-related risk which calls for any of the protective devices of the types listed in Labor Law § 240 (1)” (id. at 884-885 [citation omitted]). In Dilluvio v City of New York (95 NY2d 928 [2000]), we reached a similar result where the plaintiff fell some three feet from the back of a pickup truck in which he was riding. The Appellate Division has decided several cases involving flatbed trucks under Labor Law § 240 (1). The results in these cases vary, but most find elevation-related risk to be absent, as do both of the Appellate Division decisions now before us (see e.g. Tillman v Triou’s Custom Homes, Inc., 253 AD2d 254 [4th Dept 1999]; Cabezas v Consolidated Edison, 296 AD2d 522 [2d Dept 2002]; but see e.g. Monroe v Bardin, 249 AD2d 650 [3d Dept 1998]; Orr v David Christa Constr., Inc., 206 AD2d 881 [4th Dept 1994]).

We conclude that the flatbed trucks in these two cases, like the trucks in Bond and Dilluvio, did not present the kind of elevation-related risk that the statute contemplates.

In Toefer, Casey was working on a large and stable surface only four feet from the ground. That is not a situation that calls for the use of a device like those listed in section 240 (1) to prevent a worker from falling. Plaintiffs in Toefer argue that a hoist, which is one of the devices listed in the statute, should have been used instead of wooden poles to lower the beams from the truck, but this argument misconceives the issue. Labor Law § 240 (1) is arguably implicated in this case only because Casey fell from the truck’s trailer to the ground. The purpose of a hoist here would not have been to prevent Casey from falling; it would have been to prevent the beams themselves from doing damage. But Casey was not injured by a beam, or by any falling object; the object that struck him inexplicably flew at him either upwards or horizontally. His injury, horrendous as it is, is not attributable to the sort of elevation-related risk that Labor Law § 240 (1) was meant to address.

The same is true of Marvin’s less serious injury. A four-to-five-foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law § 240 (l)’s coverage. Safety devices of the kind listed in the statute are normally associated with more, dangerous activity than a worker’s getting down from the back of a truck. Obviously, the distance between the work platform and the ground is relevant; no one would expect a worker to come down without a ladder or other safety device from a work platform that was 10 feet high. But the lesser distance Marvin had to travel, considering the nature of the platform he was departing from, was not enough to make Labor Law § 240 (1) applicable.

The Appellate Division correctly dismissed the Labor Law § 240 (1) claims in both the Toefer and Marvin cases.

B. Labor Law § 241 (6)

Labor Law § 241 (6) provides:

“All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.”

We pointed out in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494, 503 [1993]) that this statute “is, in a sense, a hybrid.” Its first sentence, requiring “reasonable and adequate” measures, “reiterates the general common-law standard of care”; the second sentence, however, “contemplates the establishment of specific detailed rules” (id.). Our cases hold that the statute imposes a nondelegable duty on owners and contractors to comply with those “specific detailed rules.” Thus, the statute creates a cause of action against owners and contractors, making them vicariously hable for the negligence of others whom they did not supervise, where, and only where, a “specific, positive command[ ]” (Ross, 81 NY2d at 503) or a “concrete specification” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]) of a regulation promulgated by the Commissioner pursuant to the statute has been violated.

The Toefer plaintiffs contend that the failure to provide Casey with a mechanical hoist or a mobile crane to lower the beams from the truck violated specific provisions of the Commissioner’s regulations. This contention is without merit. The regulations on which plaintiffs rely, subparts 23-6 and 23-8 of the Industrial Code (12 NYCRR), do not require the use of hoists or cranes under any particular circumstances; rather, they provide detailed rules to be followed when hoists or cranes are used. Since no hoist or crane was used on the job involved in Toefer, these regulations have no application and plaintiffs’ Labor Law § 241 (6) claim must fail.

Conclusion

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

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

In each case: Order affirmed, with costs.


author: Rosenblatt, J.

text:
    [828 NE2d 983, 796 NYS2d 26]
    The People of the State of New York, Respondent, v Aaron J. Loren, Appellant.
    Argued March 31, 2005;
    decided April 28, 2005

      POINTS OF COUNSEL

      Karl E. Manne, Herkimer, for appellant.
    Members of a volunteer fire department, who are not members of the fire police squad, are not “person[s] duly empowered to regulate traffic”; therefore, a conviction for failure to comply with said volunteers’ commands under section 1102 of the Vehicle and Traffic Law cannot be upheld. (People v Jennings, 75 Misc 2d 408; People v Bassett, 156 Misc 2d 346.)

      John H. Crandall, Sr., District Attorney, Herkimer (Jeffrey S. Carpenter of counsel), for respondent.
    I. Members of a volunteer fire department are “person[s] duly empowered to regulate traffic” pursuant to Vehicle and Traffic Law § 1102 in situations wherein the “Emergency rule” of section 1602 of the Vehicle and Traffic Law requires the regulation of traffic. (People v Jennings, 75 Misc 2d 408; People v Bassett, 156 Misc 2d 346.) II. The order given must be a lawful order. (People v Donovan, 53 Misc 2d 687; People v Jennings, 75 Misc 2d 408.)
   OPINION OF THE COURT

Rosenblatt, J.

We hold that Vehicle and Traffic Law § 1102 permits a fire chief to empower subordinate firefighters to regulate and direct traffic at the scene of a fire or accident.

On December 17, 2003, units from the Village of Poland Volunteer Fire Department, commanded by the department’s chief, responded to an automobile accident on a public road. The chief ordered two firefighters, Mary Reddington and Edward Squire, to close the thoroughfare to southbound traffic. Neither Reddington nor Squire had been designated a “fire police” officer. The two firefighters set up a roadblock using flares and Squire’s personal vehicle, with its blue emergency lights turned on. Reddington was dressed in full firefighter’s “turn out” gear, and Squire wore a green flourescent vest and was holding an orange highway flag.

Approaching the roadblock from the north, defendant ignored the firefighters’ order to stop. Instead, he swerved into the northbound lane, which was not closed by the firefighters, and continued southward. Other drivers attempted to follow defendant around the roadblock. The two firefighters ran after defendant, shouting, waving their arms as well as the orange flag. Defendant stopped his car briefly, and Squire opened the passenger door in an attempt to identify him. Defendant refused to give his name, and, with Squire wedged between the door and the passenger compartment, attempted to drive off. Defendant then stopped his car and informed Squire that he was driving home. Squire replied that he was going to call the State Police. Undeterred, defendant drove off. A State Police officer later called on defendant at his residence and issued him a ticket for violating Vehicle and Traffic Law § 1102. That section provides that “[n]o person shall fail to or refuse to comply with any lawful order or direction of any police officer or flagperson or other person duly empowered to regulate traffic.”

Before the Village Court, defendant argued that he did not violate Vehicle and Traffic Law § 1102 because volunteer firefighters, who are not members of a fire police squad, have no authority to direct traffic. Reasoning that a fire chief has authority to direct traffic at the scene of an emergency and can delegate this responsibility to subordinates, the court found that defendant violated Vehicle and Traffic Law § 1102. County Court affirmed. A Judge of this Court granted leave, and we affirm.

We determine that the two volunteer firefighters were “duly empowered to regulate traffic” under Vehicle and Traffic Law § 1102 because they were acting under instructions from the department’s fire chief, who enjoys independent statutory authority to direct traffic at the scene of an accident, fire or other emergency. This power derives from Vehicle and Traffic Law § 1602—the “Emergency rule.” Section 1602 (b) provides that

“[i]n the event of a fire or other emergency or to expedite traffic or to safeguard pedestrians or property ... [a] person empowered to regulate traffic at the scene may, to the extent authorized by local law, ordinance, order, rule, regulation or administrative code provision adopted by local authorities with respect to highways within their corporate boundaries, direct traffic as conditions may require notwithstanding the provisions of this chapter or of local laws, ordinances, orders, rules, regulations, administrative code or sanitary code provisions regulating traffic” (emphasis added).

We have little difficulty in concluding that the “Emergency rule” authorizes a fire chief to direct traffic at the scene of an accident or a fire. A fire chiefs responsibility to coordinate a department’s response to an emergency necessarily includes the power both to keep the public out of harm’s way and to keep people from obstructing firefighters’ all-important mission of protecting life and limb.

Further, we hold that fire chiefs may delegate their Vehicle and Traffic Law § 1602 authority to regulate traffic to their subordinates. Village Law § 10-1018 specifies that the fire chief shall “have exclusive control of the members [of the department] at all fires” (emphasis added). Our interpretation of this language respects the fire chiefs authority to direct firefighters to undertake tasks critical to public safety, such as diverting traffic away from the scene of a fire or dangerous accident. Accordingly, the order of County Court should be affirmed.

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

Order affirmed.

       General Municipal Law § 209-c authorizes the creation of fire police squads within fire departments, to be “composed of volunteer firemen who are members of such departments or companies.” The statute provides that fire police officers “shall have the powers of and render service as peace officers.” Pursuant to Vehicle and Traffic Law § 1602, fire police squad members have the same authority as police officers to regulate traffic at the scene of fires or other emergencies. Vehicle and Traffic Law § 132 defines as “police officers . . . every duly designated peace officer as defined” by CPL 2.20. That provision incorporates CPL 2.10 (41), which designates members of fire police squads as “peace officers.”


author: R.S. Smith, J. Chief Judge Kaye (concurring in result).

text:
    [828 NE2d 975, 796 NYS2d 18]
    Scott Maybee, Doing Business as Smoke Signals, Appellant, v State of New York et al., Respondents.
    Argued March 21, 2005;
    decided April 28, 2005

      POINTS OF COUNSEL

      Margaret A. Murphy, Buffalo, and Colucci & Gallaher, P.C. (Joseph F. Crangle of counsel) for appellant.
    I. On its face, a message of necessity must comply with the mandates of article III, § 14 of the Constitution of the State of New York. (People ex rel. Hatch v Reardon, 184 NY 431, 204 US 152; Franklin Natl. Bank of Long Is. v Clark, 26 Misc 2d 724; Norwick v Rockefeller, 70 Misc 2d 923, 40 AD2d 956, 33 NY2d 537; Finger Lakes Racing Assn, v New York State Off-Track Pari-Mutuel Betting Commn., 30 NY2d 207.) II. The Governor’s message states the necessity for the passage, but not the necessity for an immediate vote. (Finger Lakes Racing Assn, v New York State Off-Track Pari-Mutuel Betting Commn., 30 NY2d 207; Norwick v Rockefeller, 70 Misc 2d 923, 40 AD2d 956, 33 NY2d 537; Matter of Joslin v Regan, 63 AD2d 466, 48 NY2d 746; Matter of King v Cuomo, 81 NY2d 247; Matter of Schulz v Silver, 212 AD2d 293.)

      Eliot Spitzer, Attorney General, Albany (Robert M. Goldfarb, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for respondents.
    I. The Governor’s message of necessity was constitutionally sufficient. (Clark v Cuomo, 66 NY2d 185; Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233; Matter of Johnson v Pataki, 91 NY2d 214; Matter of King v Cuomo, 81 NY2d 247; Settle v Van Evrea, 49 NY 280; Finger Lakes Racing Assn, v New York State Off-Track Pari-Mutuel Betting Commn., 30 NY2d 207, 409 US 1031; Norwick v Rockefeller, 70 Misc 2d 923, 40 AD2d 956, 33 NY2d 537; People ex rel. Hatch v Reardon, 184 NY 431, 204 US 152; Dalton v Pataki, 11 AD3d 62; Browne v City of New York, 213 App Div 206, 241 NY 96.) II. In the event this Court should find the message of necessity insufficient, any relief should be prospective only. (Matter of King v Cuomo, 81 NY2d 247; Matter of Mc-Cann v Scaduto, 71 NY2d 164; Matter of Campaign for Fiscal Equity v Marino, 87 NY2d 235.)
   OPINION OF THE COURT

R.S. Smith, J.

Article III, § 14 of the State Constitution provides that no bill shall be passed unless it has been printed and on the desks of the members of the Legislature for three days prior to passage or “unless the governor . . . shall have certified . . . the facts which in his or her opinion necessitate an immediate vote thereon.” Plaintiff claims that the bill at issue here was not validly passed because the “facts” that the Governor “certified” do not support the conclusion that “an immediate vote” was necessary. We hold that, as long as the Governor’s certificate contains some factual statements, the sufficiency of the stated facts to support the Governor’s conclusion may not be challenged.

Facts and Procedural History

Senate Bill S 8177 of 2000, a bill to regulate certain sales and shipments of cigarettes, was first printed on June 14, 2000. On the same day, the Governor sent to both the Senate and Assembly a “message of necessity” that contained the following language:

“The facts necessitating an immediate vote on the bill are as follows:
“This bill is necessary to amend the public health law in relation to the shipment and transportation of cigarettes to any person not licensed as a cigarette tax agent or wholesale dealer. This bill also amends the tax law and the administrative code of the City of New York with respect to imposing and enhancing civil and criminal penalties for unlawfully possessing, selling and transporting cigarettes.
“Because the bill has not been on your desks in final form for three calendar legislative days, this message is necessary to permit its immediate consideration.”

The bill was passed by the Senate on the same day it was printed and by the Assembly on the following day. Plaintiff, the owner of a business that sells cigarettes, seeks a declaratory judgment that the bill was not validly enacted. Supreme Court dismissed the complaint for failure to state a cause of action, and plaintiff appeals directly to this Court pursuant to CPLR 5601 (b) (2). We affirm.

Discussion

Article III, § 14 of the Constitution provides in relevant part:

“No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon, in which case it must nevertheless be upon the desks of the members in final form, not necessarily printed, before its final passage . . .

In Finger Lakes Racing Assn, v New York State Off-Track Pari-Mutuel Betting Commn. (30 NY2d 207 [1972]) and Norwick v Rockefeller (33 NY2d 537 [1973]) we rejected claims that the facts stated in a Governor’s certificates were insufficient to comply with article III, § 14. While Finger Lakes may have left open the possibility that some statements of facts could be found inadequate, Norwick did not. We now make explicit what our affirmance without opinion in Norwick implied: the sufficiency of the facts stated by the Governor in a certificate of necessity is not subject to judicial review.

The certificate in Finger Lakes, as we summarized it, “described the general purposes of the bill . . . and certified that because the bill had not been on the legislative desks three days ‘the Leaders of your Honorable bodies have requested this message to permit immediate consideration of the bill prior to your anticipated final adjournment’ ” (30 NY2d at 219). Noting that adjournment was imminent and “the bill could not reasonably have been in final printed form for three days before adjournment,” we held that the Governor’s certificate was “a compliance in terms and in spirit” with article III, § 14 (id.). Our next words seemed to imply that it was for the Governor to decide on the sufficiency of the facts: “It is the Governor who must express the opinion that an immediate vote is desirable. The facts on which he forms that opinion must satisfy him.” (Id.) We added, however: “The facts supporting his opinion . . . are rational and reasonable” (id.)—arguably suggesting that a certificate that was not “rational and reasonable” would be insufficient.

The apparent ambiguity in Finger Lakes was resolved in Nor-wick. There, the plaintiff challenged “all laws enacted on messages of necessity during the 1971 regular legislative session” (Norwick v Rockefeller, 70 Misc 2d 923, 925 [Sup Ct, NY County 1972], affd without op 40 AD2d 956 [1st Dept 1972], affd without op 33 NY2d 537 [1973]). Supreme Court (Saypol, J.) summarized certain of the disputed certificates as follows:

“It appears that many of the messages currently issuing contain the following pro forma language: ‘Because the bill in its final form has not been on your desks three calendar legislative days the Leaders of your Honorable bodies have requested this message to permit its immediate consideration;’ or, mutatis mutandis, ‘Because the bill in its final form has not been on your desks three calendar legislative days, the Leaders of your Honorable bodies have requested this message to permit immediate consideration of the bill prior to your anticipated final adjournment.’ ” (70 Mise 2d at 931-932.)

Justice Saypol analyzed our decision in Finger Lakes, and observed that, as we mentioned above, the key language in Finger Lakes “can be read broadly to support the Governor’s action in all cases where he issues messages of necessity” or more narrowly (id. at 933). Justice Saypol, referring to “the dominant doctrine of separation of powers with concomitant adherence to judicial self-limitation,” chose the broader reading. He held that the sufficiency of the “facts” stated by the Governor in a message of necessity “is unassailable” (id. at 934).

By affirming without opinion in Norwick we endorsed the result Justice Saypol reached. In this case, endorsement of the result implies endorsement of the critical element in his rationale: that the sufficiency of the facts stated by the Governor as necessitating expedited consideration of a bill may not be challenged. Some of the certificates upheld in Norwick said only that the bill in question had not been on the legislators’ desks for three days and that “the Leaders of your Honorable bodies have requested this message to permit its immediate consideration.” If these facts are sufficient under the Constitution, it follows that any facts will be, as long as they satisfy the Governor.

Thus we conclude that the question presented in this case is already answered by Norwick. But if we were deciding the question afresh, we would decide it the same way. The Constitution on its face makes the Governor’s judgment of the facts determinative; he or she is to state facts that “in his or her opinion” necessitate prompt action. Whether a court’s opinion is or is not the same as the Governor’s does not matter.

Some contexts might justify reading into a statute or constitutional provision a requirement that a public official’s “opinion” be reasonable. Here, however, there are several reasons for giving complete deference to the Governor’s views: The Governor is far better equipped than the courts to assess the need for speedy passage of a bill; the very need for haste that prompts him or her to issue a certificate may make it difficult to prepare a detailed and persuasive statement of the reasons for it; the Legislature has its own remedy for an inadequate certificate, since if it does not think the Governor’s reasons are good ones, it is not required to act in fewer than three days—or even to consider the bill at all; and the consequences of judicial second-guessing of the Governor’s and the Legislature’s choice to expedite passage can be draconian. If we accepted plaintiffs argument here, any statute, no matter how important to the state, would have to be thrown out by the courts if the facts stated in the certificate of necessity that permitted its prompt passage were found insufficient.

Plaintiff acknowledges that both precedent and logic support giving much deference to the Governor’s statements of facts. Plaintiff argues, however, that the deference should be less than total. Even in Norwick, plaintiff urges, the certificate of necessity contained a fact supporting a prompt vote—the fact that the leaders of the Legislature had asked for one. Here, plaintiff says, the Governor’s certificate states only reasons for passing the bill, not for voting on it promptly. We are unpersuaded by the distinction. A good reason for action can be, in some circumstances, in itself a good reason for acting promptly, and it is for the Governor and not for us to decide when that is true. And in any event, we do not think there is a significant difference between facts that support the Governor’s conclusion only weakly and facts that do not support it at all. Under Norwick, the legislative leaders’ wish for expedition is a sufficient fact—as would be, presumably, the Governor’s own wish to move the bill quickly. No useful purpose is served by trying to draw a line between such facts and those stated in the certificate at issue here; on either side of the line are factual statements that may be called “pro forma,” but are sufficient under the Constitution.

The concurring opinion argues that our ruling fails to honor the “long and substantial history” of article III, § 14 (concurring op at 422). But this argument is based heavily on the history of a provision proposed in 1915 that would have abolished certificates of necessity entirely—a provision that was never adopted. The abortive 1915 proposal is relevant here, if at all, only as an indication of what the voters decided not to do. Our holding that the Governor’s stated reasons for seeking expedition are unchallengeable is consistent with the history of the constitutional provision that actually was enacted, so far as that history throws light on the authors’ expectations.

From 1894 until the present article III, § 14 was adopted in 1938, the three-day waiting period for the passage of a bill could be dispensed with if the Governor “certified to the necessity of its immediate passage.” (1894 NY Const, art III, § 15.) The present version differs by requiring the Governor to certify not only the necessity for prompt action, but the facts that give rise to the necessity. A comment at the 1938 Constitutional Convention by George Fearon, one of the delegates who sponsored the change, shows that he understood that the effectiveness of this new requirement would depend on the Governor’s cooperation. Fearon said:

“it is the hope of the members of the committee that if the Governor is required to certify facts which in his opinion constitute an emergency, it will not fall into a pro forma signing of a printed message which reads, in effect, T hereby certify the necessity for the immediate passage of bill No. so and so.’ ” (2 Rev Record, 1938 NY Constitutional Convention, at 1435 [emphasis added].)

The key word is “hope”; Fearon hoped the Governor’s certificates would be more than pro forma, but he evidently did not expect the courts to invalidate the legislation if his hope was disappointed. He presumably recognized, as do we, that invalidation of statutes on grounds like this would do less good than harm.

Accordingly, the judgment of Supreme Court should be affirmed, with costs.

Chief Judge Kaye (concurring in result).

I begin, as do my Colleagues, with the clear words of the New York State Constitution. That is the appropriate place to begin, as the Court is obliged to honor the Constitution.

“No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon, in which case it must nevertheless be upon the desks of the members in final form, not necessarily printed, before its final passage” (NY Const, art III, § 14 [emphasis added]).

Today, however, the Court honors neither the words, nor the surprisingly long and substantial history, of this constitutional provision.

In an effort to break with past practice and ensure that both legislators and the public would know the content of bills being voted on by the Legislature, the Constitution of 1894 required— for the first time—that bills be printed and distributed to the members of the Legislature at least three days before final passage {see 1894 NY Const, art III, § 15). The objects of this reform were to prevent hasty and careless legislation, to prohibit last-minute amendments—deemed to be “one of the principal evils in the way of legislation” (1 Revised Rec, 1894 NY Constitutional Convention, at 902)—and to secure public comment prior to passage (see People ex rel. Hatch v Reardon, 184 NY 431, 439 [1906]; Matter of Schneider v Rockefeller, 31 NY2d 420, 434 [1972]). Nevertheless, because of grave doubt expressed as to whether it would be possible to print bills and get them on the desks of the members so quickly, as well as fears that public emergencies might require rapid legislation, an exception was adopted for those instances in which the Governor certified the necessity of immediate passage of the bill.

At both the Constitutional Convention of 1915 and the Constitutional Convention of 1938, the indiscriminate use of gubernatorial messages of necessity was much criticized (see e.g. 1 Revised Rec, 1915 NY Constitutional Convention, at 767 [“It was intended, beyond a doubt, that these messages should be used only in the case of a real public emergency and it was not intended . . . that they should be used as a dose of strychnine for legislation which was in its last gasps, on the last day or two of the legislative session, and which had not received proper attention earlier in the session. ... I think it may well be doubted whether there ever has been, since 1894, a real emergency where it was actually necessary to pass a bill within three days of its introduction”]; id. at 823 [“When this matter was brought before the Convention of 1894 . . . the amendment was proposed for the purpose of preventing hasty and ill-considered legislation. ... It never entered the head of anybody in that Convention that this . . . (message of) necessity . . . should be resorted to for the purpose of defeating the very object which we had in view in incorporating this provision in the Constitution so as to require at least three days for deliberation.”]; 2 Revised Rec, 1938 NY Constitutional Convention, at 975).

The 1915 Constitution, not adopted by the electorate, proposed to eliminate the exception for such messages altogether (see e.g. 1 Revised Rec, 1915 NY Constitutional Convention, at 824 [“I do not think among the important things that we have to do, that there is anything more important than the elimination of this so-called emergency message. Nothing can be done which will tend to secure more deliberative legislation in the future than the doing away with this message.”]; id. [“I have such a strong feeling upon the subject that I believe, if this Convention did nothing more than to take out this emergency message, it would have rendered a very great service to the State.”]).

The framers of the 1938 Constitution (our current Constitution) similarly sought to decrease the frequency of these messages—the use of which was especially prevalent in the hectic last few days of each legislative session—by amending the Constitution to its present form, to require that the Governor accompany a message of necessity with a certification of “the facts which in his opinion necessitate an immediate vote thereon” (see 1938 NY Const, art III, § 14).

In explaining the intent of this amendment, the sponsor explained:

“It provides first that instead of the Governor certifying as to the necessity for the immediate passage, which is exactly what he does, any Governor does: He has a printed form in which he certifies to the necessity for the immediate passage; under the new proposal the Governor will certify the facts which, in his opinion, necessitate an immediate vote on the bill, not necessarily its passage, but an immediate consideration of it and an immediate vote upon it. And it is the hope of the members of the committee that if the Governor is required to certify facts which in his opinion constitute an emergency, it will not fall into a pro forma signing of a printed message which reads, in effect, Thereby certify the necessity for the immediate passage of bill No. so and so’ ” (2 Revised Rec, 1938 NY Constitutional Convention, at 1435).

The purpose of the amendment was thus to slow the emergency enactment process, prohibit last-minute amendments, force legislators to bring bills to a vote earlier in the legislative term, and reduce the number of bills requiring an immediate vote at the end of the term (see 2 Revised Rec, 1938 NY Constitutional Convention, at 975, 980).

In contravention of the clear words and intent of the constitutional framers not only in 1894 and 1915 but also in 1938, the Court today endorses the pro forma issuance of messages of necessity without limitation, concluding that by use of the word “hope,” the framers recognized that the amendment would in fact have no effect. The common thread woven through 44 years of constitutional history is that messages of necessity were meant to be the exception, not the rule.

I cannot agree that the failure of the Governor to certify facts which in his or her opinion necessitate an immediate vote on the bill when issuing a message of necessity is of no consequence. Rather, when the constitutional command is clear, it may not be waived even with the concurrence of the Legislature.

Here, the facts certified by the Governor stated simply that the bill was

“necessary to amend the public health law in relation to the shipment and transportation of cigarettes to any person not licensed as a cigarette tax agent or wholesale dealer. This bill also amends the tax law and the administrative code of the City of New York with respect to imposing and enhancing civil and criminal penalties for unlawfully possessing, selling and transporting cigarettes.”

These facts do nothing more than set forth the content of the bill itself and are in no way relevant to the necessity of immediate consideration. To be sure, the facts are relevant to the utility of eventual adoption of the bill—that is, by setting forth the proposed provisions of law, including that penalties would be enhanced for dealing in black-market cigarettes, the message perhaps made the case for ultimate passage. But that is not the constitutional test.

In both Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Commn. (30 NY2d 207, 219-220 [1972], appeal dismissed 409 US 1031 [1972]), and Matter of Joslin v Regan (48 NY2d 746 [1979], affg 63 AD2d 466, 468-469 [4th Dept 1978]), we rejected challenges to gubernatorial messages of necessity premised on claims that the reasons given by the Governor were not good enough. Of course, as the Constitution makes clear, the facts must justify immediate consideration in the Governor’s opinion. That being so, the Court will not analyze whether facts which pertain to a need for expeditiousness are sufficient to justify the asserted need, as long as they are sufficient to satisfy the Governor. The Governor, having stated such facts, is the final arbiter of their quality, and the Court will not question that judgment.

Thus, in Finger Lakes, we upheld a message setting forth the Governor’s opinion that expedited consideration was necessary to permit consideration of the bill before the Legislature’s anticipated final adjournment. Similarly, in Joslin, we sustained a message—sent on March 31, 1977—providing that “Enactment of this bill is necessary in connection with the Budget for the 1977-78 Fiscal Year, which begins April 1” (63 AD2d at 469). But when the Governor states no facts at all that relate to timing, the Constitution has been violated, both “in terms and in spirit” (Finger Lakes, 30 NY2d at 219).

The Court relies on Norwick v Rockefeller (70 Misc 2d 923, 934 [Sup Ct, NY County 1972]) for the proposition that a message of necessity “may not be challenged” (majority op at 419). There, the messages at issue provided simply that “[b]ecause the bill in its final form has not been on your desks three calendar legislative days the Leaders of your Honorable bodies have requested this message to permit its immediate consideration” (70 Misc 2d at 931). The Norwick trial court—in analyzing Finger Lakes—expressed the view that our precedent could be read either narrowly (to set forth a rule pertaining only to messages containing facts plainly relating to the need for speed, such as the imminency of a final legislative adjournment) or broadly (to mean that messages of necessity are always beyond judicial review) (70 Misc 2d at 933-934). Stating that to forecast which reading an appellate court would ultimately endorse was “precarious” for a lower court, the trial court assumed the broader interpretation (id. at 934). The Appellate Division simply affirmed (40 AD2d 956 [1st Dept 1972]), and this Court affirmed “[n]o opinion” (33 NY2d 537, 538 [1973]), declining an opportunity to affirm on the reasoning of the trial court, as we have done innumerable times when that is our intention. “[S]tare decisis does not spring full-grown from a ‘precedent’ but from precedents which reflect principle and doctrine rationally evolved” (People v Hobson, 39 NY2d 479, 488 [1976]).

To sanction the instant message is to read the provision out of the Constitution. This, not the Governor, the Legislature or this Court—nor all three together—is empowered to do.

I concur in the result, however, because—although the very purpose of the amendment at issue here was to avoid pro forma messages of necessity—it has nevertheless become the practice of government that messages like the one before us have been routinely used. To strike or put in doubt legislation enacted on such messages would lead to great unsettlement. Thus, while I conclude that the instant message failed to comply with the constitutional mandate of article III, § 14, I would give this ruling prospective effect only (see Matter of King v Cuomo, 81 NY2d 247, 256-257 [1993] [although bicameral recall practice used by Legislature to reacquire bill from Governor’s desk found unconstitutional, relief was prospective because of longstanding recall practice and “disorder and confusion” retroactive ruling or ruling with resuscitative effect would produce]; Matter of Campaign for Fiscal Equity v Marino, 87 NY2d 235, 239 [1995] [although practice of withholding bills passed by both houses of Legislature from Governor violated State Constitution, retroactive ruling was not warranted]).

Finally, I note that article III, § 14 of the Constitution does not ask much of the Governor when a message of necessity is in order. Any facts which in the Governor’s opinion necessitate an immediate vote will satisfy the constitutional test. I therefore hope that, despite the Court’s ruling today, the Governor will in the future take the simple step of including in any message of necessity the minimal statement of facts that compliance with the Constitution requires.

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

Judgment affirmed, with costs.

       The message also contained the truism that such a message was needed in order to waive the otherwise constitutionally mandated three-day waiting period.