author: Chief Judge Kaye.

text:
    [ 883 NE2d 344, 853 NYS2d 520]
    In the Matter of Thomas J. Spota, District Attorney of Suffolk County, on Behalf of the Unkechaug Indian Nation, Appellant, v Tina Jackson, Respondent.
    Argued January 2, 2008;
    decided February 7, 2008

      POINTS OF COUNSEL

      Thomas J. Spota, District Attorney, Riverhead (Karla Lato of counsel), for appellant.
    The hearing court exceeded its discretion in determining respondent was not an intruder under Indian Law § 8. (Merrion v Jicarilla Apache Tribe, 455 US 130; Santa Clara Pueblo v Martinez, 436 US 49; Matter of Grogan v Cook, 48 AD2d 713; Matter of Patterson v Seneca Nation, 245 NY 433; Matter of Woodin [Seeley], 141 Misc 207, affd sub nom. Matter of Woodin, 238 App Div 766; Matter of Holcombe v Dimmler, 55 AD2d 808; Ortiz-Barraza v United States, 512 F2d 1176; Matter of Fischer [Checkman], 283 App Div 518; Matter of Catterson v Pell, 249 AD2d 387; Matter of Hennessy v Dimmler, 90 Misc 2d 523.)

      Nassau/Suffolk Law Services Committee, Inc., Riverhead (Meridith Nadler, Jeffrey Seigel and Hannah Abrams of counsel), for respondent.
    I. The lower court correctly held that respondent was not an intruder under section 8 of the Indian Law. (Matter of District Attorney of Suffolk County v Nelson, 68 Misc 2d 614; Matter of Catterson v Pell, 249 AD2d 387; Matter of Grogan v Cook, 48 AD2d 713; Matter of Hennessy v Dimmler, 90 Misc 2d 523; Matter of Stakel [Blueye], 281 App Div 183, 306 NY 679; Matter of Fischer v Tebo, 9 AD2d 470; Matter of Fischer [Checkman], 283 App Div 518; People v Dibble, 16 NY 203; Merrion v Jicarilla Apache Tribe, 455 US 130; Santa Clara Pueblo v Martinez, 436 US 49.) II. New York State public policy preventing violence against persons applies to a woman who received court protection against her abusive husband. (Matter of Stakel [Blueye], 306 NY 679.)
   OPINION OF THE COURT

Chief Judge Kaye.

The question before us is whether Indian Law § 8 granted the County Court the discretion to determine, independent of the Indian nation, that respondent, Tina Jackson, was not an “intruder” upon tribal land. We conclude that the court did not have that discretion.

In the 1980s, George Jackson (the husband), a blood-right member of the Unkechaug Indian Nation, received an allotment of land located at 165 Poospatuck Lane on the Poospatuck Indian reservation. In 1985 he moved to the allotment with his wife, respondent Tina Jackson (the wife), a non-Indian non-tribal member, and their three sons, George Jr., Timothy and Mohammad. Under the Poospatuck tribal bylaws, she was permitted to reside on the allotment by derivative right as the spouse of a member who exercised his right to reside on an allotment on the reservation. The couple lived on the reservation between 1985 and 1988 and then moved off of the reservation for approximately 14 years.

In August 2002, the family returned to 165 Poospatuck Lane. With the assistance of the Unkechaug Tribal Council and the tribe, and at her expense, the wife substituted a trailer for her family to live in on the allotment. During the winter of 2003, she reported an instance of spousal abuse to the tribe. That same year, while the wife continued to reside on the allotment with her husband and their three sons, she took him to court to obtain child support, and had his wages garnished. In January 2004, she obtained an order of protection against him from Family Court. He moved out in early February 2004.

On February 25, 2004, after he had left the family residence, the husband effected a transfer of his interest in the allotment to his brother Glenn, who then requested a meeting with the Tribal Council to discuss “getting Tina Jackson off of my land [a]s soon as possible.” On April 12, 2005, Glenn officially asked the Council to remove the wife from the property. In early May, two Trustees of the Council by letter demanded that she vacate the property by June 2, 2005, or be subject to prosecution as an intruder. After she failed to leave voluntarily, six out of seven Council members authorized the District Attorney to initiate removal proceedings against her, and the present proceeding ensued.

County Court, after a hearing, concluded that although deference must be given by courts to Indian tribes, “the cases . . . make clear that courts must make a legal determination, independent of the Indian nation, as to whether or not a person is an intruder” (2005 NY Slip Op 30198[U], *2). Quoting Matter of Hennessy v Dimmler (90 Misc 2d 523, 526 [Onondaga County Ct 1977]), the court found that “persons who had resided on the reservation for many years were not intruders since they did not force their way onto the reservation ‘without leave or welcome’ ” (id.). The wife, it determined, was such a person. Moreover, as finding her an intruder “would be ordering a separation of the mother and her three sons,” then 18, 19 and 24 (id. at *3), and under New York law the right of support extended until a child reached the age of 21, the court concluded that her right to reside upon the allotment would continue as long as one of her blood-right member children under 21 years of age resided on the allotment. (The Jacksons’ youngest child will turn 21 in September 2008.) The Appellate Division unanimously affirmed. We now reverse.

Analysis

Titled “Intrusions on tribal lands,” Indian Law § 8 provides:

“Except as otherwise provided by law, no person shall settle or reside . . . upon any lands owned or occupied by any nation, tribe or band of Indians, except the members of such nation, tribe or band. . . . Any lease, contract or agreement in violation of this section shall be void. The county judge . . . upon complaint made to him, of a violation of this section, shall . . . take proof of the facts alleged in the complaint, and shall determine whether such person is an intruder upon the lands of such reservation.”

This appeal asks us to decide the scope of the directive that the county judge “shall determine whether such person is an intruder.” To resolve this open issue, we have examined the relevant statutes and case law, and have considered their implications with regard to the tribes’ inherent rights as quasi-sovereign nations. We are persuaded that Indian Law § 8 was not intended to afford a court the broad discretion that was exercised here.

While not defining “intruder” in People ex rel. Cutler v Dibble (16 NY 203 [1857])—our sole case interpreting Indian Law § 8— we determined that the section (then L 1821, ch 204) was an enforcement mechanism, and thus provided no margin for judicial discretion. The 1821 statute—titled “An Act respecting Intrusions on Indian Lands”—did not actually use the term “intruder,” but prohibited residence or settlement by “any person or persons, other than Indians” (L 1821, ch 204, § 1). We concluded that as part of the state’s “duties and obligations” to protect the tribes within its borders, the proceeding was intended to allow “summary removal of persons who have entered upon [Indian] lands” (16 NY at 212). “The moment the intrusion is made out, and the nature of the territory intruded upon appears, there is nothing to be tried, and nothing for the courts to determine, in respect to the right of occupancy and possession” (id. at 214). The United States Supreme Court affirmed (New York ex rel. Cutler v Dibble, 21 How [62 US] 366, 370 [1858] [the law was a “police regulation” intended to protect the bands “from imposition and intrusion”]).

In 1892, the various Indian laws respecting “intrusions” were consolidated. The directive to the county judge was incorporated (from an 1863 law [L 1863, ch 90] prohibiting nonmembers of the Tonowanda Band of Seneca Indians from residing or settling on the Tonowanda reservation), and an exception added for “as otherwise provided by law” (see L 1892, ch 679, adding Indian Law § 8). Although reenacted as Indian Law § 8 in 1909, amended in 1955 and again in 1957 to add, in relevant part, “in violation of this section” after “[a]ny lease, contract or agreement” the statute’s current form is otherwise unchanged from 1892 (see L 1892, ch 679; L 1909, ch 31; L 1955, ch 400; L 1957, ch 886).

In the 1950s, the Third and Fourth Departments of the Appellate Division divided as to the scope of discretion Indian Law § 8 allowed the county judge (see Matter of Stakel [Blueye], 281 App Div 183 [4th Dept 1953]; Matter of Fischer [Checkman], 283 App Div 518 [3d Dept 1954]).

In Stakel (Blueye), Carrie Blueye was the daughter of a Tonawanda tribal member who had married a Seneca woman. Although lineage was determined through the mother’s bloodlines, Carrie Blueye had married a Tonawanda member and lived on the reservation for nearly 60 years. The tribe instituted removal proceedings after her husband died. Even assuming that the custom was to trace nationality through the maternal side, the court concluded that Carrie Blueye was not an “intruder.” Finding no definition of intruder in the statute or the evidence, the court relied on the dictionary: “An intruder is said to be ‘one who in any way thrusts himself in where he is not wanted’. (Webster’s New International Dictionary [2d ed.].) The appellant did not force her way upon the Tonawanda Reservation without leave or welcome” (Stakel [Blueye], 281 App Div at 184). In affirming, this Court chose not to adopt the Appellate Division’s reasoning, relying instead on Indian Law § 9 and on evidence that written permission to reside on the reservation had been granted Carrie Blueye’s mother (see Matter of Stakel [Blueye], 306 NY 679, 680 [1954]).

In Fischer (Checkman), a majority of the tribal chiefs of the St. Regis Tribe of Mohawk Indians applied to the District Attorney for removal of a non-Indian married to a tribal member. Distinguishing Stakel (Blueye), the court determined that “[t]he only area of open judicial inquiry lies in the right to determine whether or not there is membership in the Indian unit. There is no room left for residual judicial discretion” (Fischer [Check-man], 283 App Div at 520). As the Third Department noted,

“Who is an ‘intruder’ in the sense of the special statutory use of that word in this section is not left to rest on mere general meaning. It is given a contextual definition. The section heading describes the section as ‘Intrusions on tribal lands’ but what is intended to be meant by ‘intrusion’ becomes immediately apparent from the opening words of prohibition. ‘No person’, it reads, shall ‘settle or reside’ on any lands owned or occupied ‘by any nation, tribe or band’ of Indians except ‘the members of such nation, tribe or band’.
“This language makes the legislative intent explicit. It is the person not a member of the respective Indian unit who undertakes to reside on the lands who becomes an ‘intruder.’ It is such a person the District Attorney is required to proceed against to remove on the application of the proper Indian authorities; and it is such a person the County Judge is required to order removed. These are the ‘intrusions’ for which the statutory proceedings are framed” {id. at 519-520).

We agree with the court’s reasoning in Fischer (Checkman). In the first instance, a statutory term should be defined by the context of the statute rather than by the dictionary (see Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001]). Indian Law § 8 makes clear that an “intruder” is a person not a member of the subject tribe who undertakes to reside on tribal lands.

From 1788, when the term “intruder” first appeared in treaties with the Onondagas and Oneidas, each section that used the term specified in its opening sentence the persons it covered {see Treaty with the Onondagas [intruder is “any person” except the Onondagas who had “come to reside or settle” on Onondaga lands]; L 1821, ch 204 [“any person or persons, other than Indians” who “settle or reside upon lands belonging to or occupied by any nation or tribe of Indians”]; L 1863, ch 90, § 25 [“any Indians, other than members of the Tonawanda band”]; L 1892, ch 679, § 8 [“person(s)” who “shall settle or reside upon any lands owned ... by any nation, tribe or band of Indians” except for its own members]).

Although the language directing that the county judge “determine whether such person is an intruder upon the lands of such reservation” was added in 1892, we conclude that it was not intended to alter the scope of the court’s discretion, which was still limited to the opening definition. This conclusion is supported by the clause, present in each version, that “[a]ny lease, contract or agreement . . . shall be void,” as such language would be meaningless if the tribe could, by its actions, “agree” to accept an outsider and change such person’s status as an “intruder.” It is further supported by the clause added in 1957, “in violation of this section,” necessarily referring back to the opening sentence of “this section.” The alternative Stakel (Blueye) test ignores the statute’s own definition.

The definition would, moreover, be inconsistent with the sovereignty retained by the tribes.

Indian tribes are “unique aggregations” possessing whatever “attributes of sovereignty over both their members and their territory” have not been implicitly divested by their dependent status, including the right to “self-government and territorial management” (see United States v Mazurie, 419 US 544, 557 [1975]; Merrion v Jicarilla Apache Tribe, 455 US 130, 137 [1982]; see e.g. Worcester v Georgia, 6 Pet [31 US] 515, 580 [1832]). Essential to this retained right to “self-government and territorial management” is tribes’ power to make their own law on internal matters (see Santa Clara Pueblo v Martinez, 436 US 49, 55 [1978]), the right to determine membership (Roff v Burney, 168 US 218, 222 [1897]) and conversely, the “right to exclude” nonmembers from Indian lands (see Merrion, 455 US 130, 144, 185 [1982]). The right to exclude necessarily includes the “lesser power to place conditions on entry, on continued presence, or on reservation conduct” (Merrion, 455 US at 144).

Since at least 1843, New York has acknowledged the customs and laws of many tribal governments, including the Poospatuck, in its statutes (see Indian Law §§ 20-153; People ex rel. La Forte v Rubin, 98 NYS 787, 788-789 [Sup Ct, Onondaga County 1905]). In Matter of Patterson v Seneca Nation (245 NY 433 [1927]), we held that the question of tribal membership “must be determined by the self-governing Seneca Nation, through its council, according to Seneca laws, usages and customs” (id. at 446).

“[U]nless the last vestige of separate national life has been withdrawn from the Indian tribes by encroaching State legislation; then, surely, it must follow that the Seneca Nation of Indians has retained for itself that prerequisite to their self-preservation and integrity as a nation, the right to determine by whom its membership shall be constituted” (id. at 438).

New York courts have also generally recognized that tribal law, usages and customs not only control tribal membership but also impact their ability to determine a nonmember’s status as an “intruder” (see Matter of Woodin [Seeley], 141 Misc 207 [Chautauqua County Ct 1931] [family of deceased son of member of Seneca tribe who married a non-Indian had no right of inheritance pursuant to Seneca law and were subject to removal as intruders]; Matter of District Attorney of Suffolk County v Nelson, 68 Misc 2d 614, 618-619 [Suffolk County Ct 1972] [adopted daughter of member of Poospatuck Nation did not become a member pursuant to tribal bylaw, therefore she and her husband were intruders upon the reservation]; Tuscarora Nation of Indians v Swanson, 108 Misc 2d 429, 432 [Sup Ct, Niagara County 1981] [tribal member and non-Indian husband “(we)re intruders upon plaintiffs lands as they have not shown any right to remain there, either under the tribal laws of the Tuscarora or the Onondaga Nations”]). The tribes’ right to make internal substantive law, and to determine their own membership according to such law, is diminished if county courts have the discretion independently to decide who is an “intruder” on Indian lands.

In sum, Indian Law § 8 defines intruders as “non-members” who “settle or reside” within the boundaries of recognized Indian land. As there is no dispute that Tina Jackson is not a member of the Poospatuck Nation and resides on a reservation allotment, she is an “intruder” within the meaning of section 8. However unwise the application for her removal may appear to this Court, the tribe did not abrogate its own bylaws, usages and customs in determining that, following the transfer, she has no right to reside on the allotment, and County Court was therefore without discretion to dismiss the petition.

Accordingly, the order of the Appellate Division should be reversed, without costs, the petition granted, respondent declared to be an intruder on the lands of the Unkechaug Indian Nation, and the matter remitted to County Court for further proceedings in accordance with this opinion.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

      . The Unkechaug Nation, also known as the Poospatuck Indian Nation, is recognized by the State of New York (see Indian Law, art 10, §§ 150-153 [“The Poospatuck (Unkechauge) Indian Nation”]). For the Unkechaug, the right of occupancy on an allotment remains collectively with the tribe but must be granted to individual blood-right members unless they have been convicted of a crime, violated Poospatuck law, or deemed undesirable by a majority of tribal members (see Poospatuck Indian Nation Tribal Rules, Custpms and Regulations).
      The reasons why the tribe is not also federally recognized are discussed in the Report of Special Committee to Investigate the Indian Problem of the State of New York, Appointed by the Assembly of 1888, Transmitted to the Legislature February 1, 1889 (Whipple Report) (at 54-55; New York Indians, Hearings before a Subcommittee of the Committee on Interior and Insular Affairs on S. 1683, S. 1686, S. 1687, 80th Cong, 2d Sess, at 217 [1948]; Report with Respect to the House Resolution Authorizing the Committee on Interior and Insular Affairs to Conduct an Investigation of the Bureau of Indian Affairs, HR Rep 2503, 82d Cong, 2d Sess, at 531, 593 [1952]; see also Gerald Gunther, Governmental Power and New York Indian Lands—A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buff L Rev 1, 22 n 130 [1958-1959]).

      . People ex rel. Blacksmith v Tracy (1 Denio 617 [1845]) determined that the decision of a county judge cannot he reviewed by mandamus, and in People ex rel. Waldron v Soper (7 NY 428 [1852]), we held that the court was without jurisdiction where defendants were summoned and did not appear before the county judge. Neither, however, actually interpreted the section.

      . This definition of “intruder”—considering circumstances surrounding a person’s relations with the tribe, in addition to membership or the tribe’s own characterization of status—was, however, thereafter adopted as the applicable test by at least one court—Onondaga County Court in Matter of Hennessy v Dimmler (90 Misc 2d 523 [1977]).

        . Treaty with the Onondagas, Sept. 12, 1788, in Whipple Report at 190, 191; see also Treaty with the Oneidas, Sept. 22, 1788, in Whipple Report at 237, 239).

      . We note that the wife’s status as an “intruder” has no bearing on her ownership of the trailer, allegedly purchased with her own funds.


source: Caselaw Access Project

license: Public Domain

text:
    [ 882 NE2d 882, 853 NYS2d 270]
    Kenneth D. Smalley et al., Respondents, v The Dreyfus Corporation et al., Appellants.
    Argued January 10, 2008;
    decided February 12, 2008

      POINTS OF COUNSEL

      Reed Smith LLP, New York City (Gil Feder, Paul P. Rooney and Lance Gotthoffer of counsel), for appellants.
    I. The Appellate Division order should be reversed because a promise related to continued employment or a promise regarding a future act cannot be relied upon by an at-will employee. (Murphy v American Home Prods. Corp., 58 NY2d 293; Tannehill v Paul Stuart, Inc., 226 AD2d 117; Skillgames, LLC v Brody, 1 AD3d 247; Garwood v Sheen & Shine, 175 AD2d 569; Arias v Women in Need, 274 AD2d 353; O’Connor v Harbrew Imports, Ltd., 4 Misc 3d 1016[A], 2004 NY Slip Op 50909[U]; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Bower v Atlis Sys., 182 AD2d 951; Attas v Park E. Animal Hosp., 235 AD2d 246; Stewart v Jackson & Nash, 976 F2d 86.) II. Plaintiffs cannot masquerade their deficient breach of contract claims as fraud claims. (Dalton v Union Bank of Switzerland, 134 AD2d 174; Tannehill v Paul Stuart, Inc., 226 AD2d 117; Stewart v Jackson & Nash, 976 F2d 86; Sforza v Health Ins. Plan of Greater N.Y., 210 AD2d 214; McKernin v Fanny Farmer Candy Shops, 176 AD2d 233; Nagle v Shearson Lehman Bros., 190 AD2d 568; Arias v Women in Need, 274 AD2d 353; R.H. Damon & Co., Inc. v Softkey Software Prods., Inc., 811 F Supp 986; Tesoro Petroleum Corp. v Holborn Oil Co., 108 AD2d 607; Murphy v American Home Prods. Corp., 58 NY2d 293.)

      The Law Offices of Neal Brickman, P.C., New York City (Neal Brickman and Melinda M. Dus of counsel), for respondents.
    I. Defendants intentionally misrepresented an existing fact unrelated to continued employment. (Stewart v Jackson & Nash, 976 F2d 86; Murphy v American Home Prods. Corp., 58 NY2d 293; Tannehill v Paul Stuart, Inc., 226 AD2d 117; Skillgames, LLC v Brody, 1 AD3d 247; O’Connor v Harbrew Imports, Ltd., 4 Misc 3d 1016[A], 2004 NY Slip Op 50909[U]; Attas v Park E. Animal Hosp., 235 AD2d 246; Garwood v Sheen & Shine, 175 AD2d 569.) II. Plaintiffs set forth a well-pleaded cause of action for fraudulent inducement. (First Nationwide Bank v 965 Amsterdam, 212 AD2d 469; Chase Manhattan Bank, N.A. v Perla, 65 AD2d 207; Backer v Lewit, 180 AD2d 134; Stewart v Jackson & Nash, 976 F2d 86; Navaretta v Group Health, 191 AD2d 953; Sabo v Delman, 3 NY2d 155; Garnier v J.C. Penney Co., Inc.,
      863 F Supp 139; Moore v PaineWebber, Inc., 189 F3d 165.) III. Plaintiffs allege injury and damages that are separate and apart from damages resulting from their termination. (Stewart v Jackson & Nash, 976 F2d 86; Garnier v J.C. Penney Co., Inc., 863 F Supp 139; Sabo v Delman, 3 NY2d 155; Dalton v Union Bank of Switzerland, 134 AD2d 174; Sforza v Health Ins. Plan of Greater N.Y., 210 AD2d 214; Nagle v Shearson Lehman Bros., 190 AD2d 568; Backer v Lewit, 180 AD2d 134; Cole v Kobs & Draft Adv., Inc., 921 F Supp 220.) IV On a motion to dismiss, the facts alleged by plaintiffs should be accepted as true and plaintiffs should be afforded all reasonable inferences therefrom. (Rovello v Orofino Realty Co., 40 NY2d 633; Melito v Interboro-Mutual Indem. Ins. Co., 73 AD2d 819; Foley v D’Agostino, 21 AD2d 60.)
   OPINION OF THE COURT

Chief Judge Kaye.

Five at-will employees sued their former employer, the Dreyfus Corporation, for fraudulent inducement to enter into and remain in the employment of Dreyfus. We conclude that these plaintiffs have not stated a cause of action.

As alleged in the amended complaint, in January 2001, plaintiff Gerald Thunelius, then the director of Dreyfus’ Taxable Fixed Income Group (TFIG), heard a rumor that Mellon Financial Corporation, Dreyfus’ parent corporation, had made an offer to acquire the fund management company of Standish, Ayer & Wood. When asked, Dreyfus’ chief executive officer (CEO) told Thunelius that no merger had occurred or was being considered. Relying on those assurances, plaintiff Martin Fetherston in December 2000 accepted employment in the TFIG. Mellon acquired Standish in March 2001. Between 2001 and 2004, Thunelius repeatedly asked Dreyfus’ officers whether there were plans to merge the TFIG with Standish, and they denied any planned merger. During these years, plaintiffs Kenneth Smalley, Darlene Haut and Michael Allen allege that they accepted jobs with the TFIG in reliance on the denials by Dreyfus’ officers.

The amended complaint continues that in April 2004, Dreyfus’ CEO told the TFIG that any merger of the group into Standish was “off the table,” and that the group would remain intact for at least another year. By early fall 2004, merger rumors resurfaced, which at the time Dreyfus’ officers refused to confirm or deny. In late 2004, the two groups merged, and in February 2005—four years after the alleged merger discussions began—Dreyfus fired every member of the TFIG.

The five sued Dreyfus in Supreme Court, asserting several causes of action, only one of which—fraudulent inducement— remains relevant. The court dismissed the entire complaint noting that at-will employees cannot reasonably rely upon their employers’ promises of continued employment, and that these employees failed to allege injuries apart from their termination. The Appellate Division, four-one, modified Supreme Court’s order by reinstating the fraudulent inducement claim, concluding that Dreyfus misrepresented a present material fact and that the plaintiffs alleged injuries distinct from termination; the fifth Justice would have dismissed the entire complaint. We now reverse.

New York law is clear that absent “a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired” (Murphy v American Home Prods. Corp., 58 NY2d 293, 305 [1983]). Thus, either the employer or the employee generally may terminate the at-will employment for any reason, or for no reason. In the decades since Murphy, we have repeatedly refused to recognize exceptions to, or pathways around, these principles (see Horn v New York Times, 100 NY2d 85 [2003]; Ingle v Glamore Motor Sales, 73 NY2d 183 [1989]; Sabetay v Sterling Drug, 69 NY2d 329 [1987]; see also Weiner v McGraw-Hill, Inc., 57 NY2d 458 [1982]).

Relying on a decision of the United States Court of Appeals for the Second Circuit—Stewart v Jackson & Nash (976 F2d 86 [2d Cir 1992])—plaintiffs urge that theirs is not a breach of contract case, but rather a legally cognizable tort claim, for fraudulent inducement.

In Stewart, defendant law firm recruited an environmental law attorney (plaintiff Victoria Stewart), telling her that it had secured a large environmental law client, that she would work on that client’s matters and that the firm was establishing an environmental law department, which she would head. When Stewart arrived at the firm, however, she learned that the firm was still trying to secure the client, and she performed only general litigation work. The firm later terminated her employment, and she brought suit for damages. Reversing the United States District Court, the Second Circuit denied the law firm’s motion to dismiss Stewart’s fraudulent inducement claim both because the firm’s promises concerning the environmental law client and department were misstatements of present fact, and because the alleged injuries—thwarting her professional objective to specialize in environmental law, and damaging her career potential—occurred well before plaintiffs termination and were unrelated to it.

Without adopting or rejecting the Second Circuit’s rationale, we note that Stewart is fundamentally different from the case now before us. The core of plaintiffs’ claim is that they reasonably relied on no-merger promises in accepting and continuing employment with Dreyfus, and in eschewing other job opportunities. Thus, unlike Stewart, plaintiffs alleged no injury separate and distinct from termination of their at-will employment. In that the length of employment is not a material term of at-will employment, a party cannot be injured merely by the termination of the contract—neither party can be said to have reasonably relied upon the other’s promise not to terminate the contract. Absent injury independent of termination, plaintiffs cannot recover damages for what is at bottom an alleged breach of contract in the guise of a tort.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, defendants’ motion to dismiss the complaint in its entirety granted and the certified question answered in the negative.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order, insofar as appealed from, reversed, etc.

      . Plaintiffs concede that they were at-will employees. The employment contract each plaintiff signed with Mellon stated: “I understand that such employment will be for an indefinite period and may be terminated at any time, with or without notice.” None of their contracts referenced any alleged merger plans.

      . “Dreyfus” refers to all of the defendants, including Dreyfus’ chief executive officer, chief investment officer, Mellon Financial Corporation (Dreyfus’ parent corporation) and Mellon’s chairman.

      . We need not and do not reach the additional question whether the alleged representations regarding the no-merger “plans” were existing fact or future intent.


text:
    [ 882 NE2d 886, 853 NYS2d 274]
    In the Matter of Susan Spencer, Respondent, v James Spencer, Appellant.
    Argued January 8, 2008;
    decided February 14, 2008

      POINTS OF COUNSEL

      McNamee, Lochner, Titus & Williams, P.C., Albany (Bruce J. Wagner of counsel), for appellant.
    I. The New York courts lack subject matter jurisdiction pursuant to the Full Faith and Credit for Child Support Orders Act. (Matter of Reis v Zimmer, 263 AD2d 136, 270 AD2d 968; Matter of Batesole-Harmer v Batesole, 28 AD3d 551.) II. The New York courts lack subject matter jurisdiction pursuant to the Uniform Interstate Family Support Act. (Matter of Chisholm-Brownlee v Chisholm, 177 Misc 2d 185; Matter of Auclair v Bolderson, 6 AD3d 892, 3 NY3d 610; Matter of Reis v Zimmer, 263 AD2d 136; Matter of Daknis v Burns, 278 AD2d 641.) III. By extending the duration of a child support order, the Appellate Division has rendered a modification prohibited by the Full Faith and Credit for Child Support Orders Act and Uniform Interstate Family Support Act. (Matter of Ferraro v Nash, 293 AD2d 538; Matter of Hauger v Hauger, 256 AD2d 1076; Matter of Schottenstein v Schottenstein, 9 Misc 3d 1106[A], 2005 NY Slip Op 51422[U]; Matter of Goodison v Goodison, 184 Misc 2d 573; Cahen v Boyland, 1 NY2d 8; Matter of Northeast Mines v State of N.Y. Dept. of Envtl. Conservation, 113 AD2d 62; Matter of Daknis v Burns, 278 AD2d 641; Matter of Auclair v Bolderson, 6 AD3d 892; Matter of Handler v Selbert, 221 AD2d 788; Kromer v Kromer, 177 AD2d 472.)

      Maynard, O’Connor, Smith & Catalinotto, Albany (Michael T. Snyder of counsel), for respondent.
    Subject matter jurisdiction to entertain the de novo petition for support exists and the order of the Appellate Division should be affirmed. (Matter of Hauger v Hauger, 256 AD2d 1076; Matter of Ferraro v Nash, 293 AD2d 538; Matter of Goodison v Goodison, 184 Misc 2d 573; Jensen v General Elec. Co., 82 NY2d 77; Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161; Matter of Auclair v Bolderson, 6 AD3d 892, 3 NY3d 610; Matter of Daknis v Burns, 278 AD2d 641; Matter of Reis v Zimmer, 263 AD2d 136; Matter of Batesole-Harmer v Batesole, 28 AD3d 551; Kromer v Kromer, 177 AD2d 472.)

      Law Offices of Aaron Weitz, New York City (Elliot Scheinberg of counsel), for New York Chapter of American Academy of Matrimonial Lawyers and another, amici curiae.
    I. The jurisdictional issue herein is governed by the Supremacy Clause and congressional enactment. (Matter of Ferraro v Nash, 293 AD2d 538; Matter of Hauger v Hauger, 256 AD2d 1076; Matter of Goodison v Goodison, 184 Misc 2d 573.) II. New York lacked subject matter jurisdiction under 28 USC § 1738B, the Full Faith and Credit for Child Support Orders Act, to modify the Connecticut child support award. (Matter of Reis v Zimmer, 263 AD2d 136, 270 AD2d 968; Matter of Auclair v Bolderson, 6 AD3d 892; Matter of City of New York, 293 NY 1; Matter of Commonwealth Elec. Inspection Servs. v Town of Clarence, 6 AD3d 1185; Shea v Export S.S. Corp., 253 NY 17; Patrone v Howlett, Inc., 237 NY 394; Marine Midland Bank v Bowker, 89 AD2d 194; Harris v Hirsh, 196 AD2d 425.) III. Under the Uniform Interstate Family Support Act New York lacked subject matter jurisdiction; continuing exclusive jurisdiction rests in Connecticut. (Matter of Reis v Zimmer, 263 AD2d 136, 270 AD2d 968; Matter of Daknis v Burns, 278 AD2d 641; Matter of Chisholm-Brownlee v Chisholm, 177 Misc 2d 185; Matter of Auclair v Bolderson, 6 AD3d 892.) IV The “expire order” notion is a mutant hybrid of inconceivable jurisdictional interloping whereby the encroaching state dissects an existing order and assumes jurisdiction over only a portion of the order while relegating jurisdiction of its balance to the original issuing state. (Matter of Ferraro v Nash, 293 AD2d 538; Matter of Hauger v Hauger, 256 AD2d 1076; Matter of Goodison v Goodison, 184 Misc 2d 573; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.) V An affirmance of the Appellate Division will revive the mischief of pre-Full Faith and Credit for Child Support Orders Act and Uniform Interstate Family Support Act forum hunting, where the jurisdictional frontiers were unpredictable. VI. The Appellate Division decision violates the canon of statutory construction that legislative intent be effectuated, first and foremost, via the application of clear and unambiguous statutory language; the Full Faith and Credit for Child Support Orders Act identifies four ways how a modification can come to be: “modification,” “establish,” “otherwise,” or “subsequent to.” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d 578; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475.) VII. Support orders have three components: amount, duration, and the tacitly subsumed order directing the payor to halt payments beyond the duration of the support order. VIII. Statutory construction requires an exploration of the social and historical climates that permeated the period antedating a law’s enactment and its evolution with a special focus on the ills to be cured. (Matter of Reis v Zimmer, 263 AD2d 136, 270 AD2d 968; Matter of Isabel M. v Thomas M., 164 Misc 2d 420; People v Garson, 6 NY3d 604; Matter of Batesole-Harmer v Batesole, 28 AD3d 551; Matter of Schottenstein v Schottenstein, 9 Misc 3d 1106[A], 2005 NY Slip Op 51422[U]; Matter of Auclair v Bolderson, 6 AD3d 892; Matter of Daknis v Burns, 278 AD2d 641; Matter of Parenzan v Parenzan, 285 AD2d 59.) IX. Under the canons of statutory construction the Uniform Interstate Family Support Act, the Full Faith and Credit for Child Support Orders Act, the Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnaping Prevention Act are cognate statutes in pari materia which require parallel treatment because they protect the same class of people—children. X. States nationwide have categorically rejected “the expired order” concept as a violation of federal and state law and forum shopping. (Matter of Schottenstein v Schottenstein, 9 Misc 3d 1106[A], 2005 NY Slip Op 51422[U]; Mountain View Coach Lines v Storms, 102 AD2d 663.)
   OPINION OF THE COURT

Chief Judge Kaye.

When a Connecticut child support order has expired because the child has reached 18 (the age of majority under Connecticut law), is a subsequent New York child support order for support of the same child to age 21 (the age of majority under New York law) a new order or a modification of the Connecticut order? We conclude that the New York order is a modification of the Connecticut order and that New York lacks subject matter jurisdiction over the petition for child support in this case.

Background

Susan and James Spencer, married in Connecticut, are the parents of three children—a son born in 1986, a second son born in 1988, and a daughter born in 1992. The mother worked as a nurse throughout most of their marriage, and the father as a physician in private practice. The Spencers separated in 1994, and the mother and children moved from Connecticut to New York, where they have since resided. The father maintains his residence in Connecticut.

The couple divorced by judgment of Connecticut Superior Court on December 21, 1994. The court ordered the father to pay child support of $250 weekly per minor child, and to continue providing the children with medical insurance at his sole expense. The order also required the father to pay alimony of $600 per week until June 30, 1996 and then $500 per week until its automatic termination on December 31, 2004. In 2004, the eldest son turned 18 and the father’s support obligations terminated under Connecticut law (Conn Gen Stat Ann § 46b-215 [a] [1]). In December 2004, the father’s alimony obligations terminated as well. Five months later the father sold his private practice and began working three days a week as a consultant.

On June 30, 2005 the mother filed a petition in Family Court, Albany County seeking a de novo determination of child support for the eldest son as well as contribution for his college expenses and medical insurance. The father moved to dismiss the petition for lack of subject matter jurisdiction.

The Support Magistrate denied that motion and, after a hearing, ordered him to pay child support for the eldest son in the amount of $350 weekly (retroactive to June 30, 2005), 75% of any increase in his health insurance, 75% of all uninsured medical expenses, 75% of his college expenses, and to post an undertaking of $12,600. Three weeks later the Support Magistrate directed the father to pay the mother’s counsel fees in the amount of $5,080. The father filed objections to both orders; the mother objected to the amount of the attorney’s fees as only a partial award.

On March 1, 2006, Family Court denied the father’s objections and held that the Support Magistrate properly retained subject matter jurisdiction over the child support petition because the second order was not a modification of Connecticut’s original decree. Separately, the court denied the father’s objections to the award of counsel fees and granted the mother’s objection by increasing the amount of counsel fees owed by the father to $9,597. The Appellate Division affirmed, reasoning that because the Connecticut child support order expired as to the eldest son, there was no existing order to modify and therefore no jurisdictional obstacle to entertaining the mother’s petition for a new child support order. We now reverse.

Analysis

In the late 1980s Congress created the Commission on Interstate Child Support to address the problem of multiple, often conflicting child support orders issued by different jurisdictions (S Rep 103-361, 103rd Cong, 2d Sess, at 4, reprinted in 1994 US Code Cong & Admin News, at 3259, 3260). The Commission reported that a significant factor contributing to the creation of multiple orders was that child support orders were not entitled to full faith and credit. To remedy this impediment to efficient nationwide enforcement of child support orders, in 1994 Congress enacted the Full Faith and Credit for Child Support Orders Act (FFCCSOA), which requires each state to give full faith and credit to another state’s validly issued child support order (28 USC § 1738B, as added by Pub L 103-383, 108 US Stat 4063). Specifically, a state “shall enforce according to its terms a child support order ... of another State; and . . . shall not seek or make a modification of such an order” except in limited circumstances (28 USC § 1738B [a]).

Congress’ efforts to create nationally uniform standards for the administration of child support orders continued with the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub L 104-193 § 321, 110 US Stat 2105, 2221 [104th Cong, 2d Sess, Aug. 22, 1996], adding 42 USC § 666 [f]). Among other things, this act mandated that each state enact the Uniform Interstate Family Support Act (UIFSA) by January 1, 1998 in order to receive federal funding for social welfare programs (see 42 USC § 654 [20]; §§ 655, 666 [f|). The legislative history indicates that the requirement to adopt UIFSA supported the congressional goal to “achieve uniformity in interstate cases, and also to recognize other States’ uncontested child support orders” (HR Rep 104-651, 104th Cong, 2d Sess, at 1324, reprinted in 1996 US Code Cong & Admin News, at 2183, 2383). New York adopted the 1996 version of UIFSA on December 31, 1997 (Family Ct Act § 580-101 et seq.).

Although UIFSA governs a broader array of child support issues than the FFCCSOA, the statutes have complementary policy goals and should be read in tandem (see Matter of Auclair v Bolderson, 6 AD3d 892 [3d Dept 2004]; see also Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act art 5-B, at 204). This is not a case where the two statutes conflict. Rather, the relevant provisions are consistent. Indeed, where UIFSA is silent, the FFCCSOA may help fill any gaps.

The statutes together establish a national single-order system, vesting continuing, exclusive jurisdiction with the issuing state. Under the FFCCSOA and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state (see 28 USC § 1738B [d]; Family Ct Act § 580-205). Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction (see 28 USC § 1738B [e]; Family Ct Act § 580-611 [a]; see also Matter of Reis v Zimmer, 263 AD2d 136 [4th Dept 1999]; Matter of Daknis v Burns, 278 AD2d 641 [3d Dept 2000]; Matter of Batesole-Harmer v Batesole, 28 AD3d 551 [2d Dept 2006]).

Here, it is uncontested that the father always has lived in Connecticut, the state that issued the child support order. Under both statutes, because the father continues to reside in the issuing state, Connecticut retains continuing, exclusive jurisdiction of its child support order and New York does not have subject matter jurisdiction to modify the Connecticut order. The only issue, then, is whether a petition filed after the termination of the initial child support obligation because the child reached the issuing state’s age of majority seeks a “modification” of the issuing state’s order. If so, under the provisions of both statutes, New York lacks subject matter jurisdiction.

The Appellate Division determined that an “expired order”—by its very nature—cannot be modified because it no longer is in effect (35 AD3d 980, 982-983 [2006]; see also Matter of Ferraro v Nash, 293 AD2d 538 [2d Dept 2002]; Matter of Hauger v Hauger, 256 AD2d 1076 [4th Dept 1998]). The court therefore granted what it saw as a de novo child support petition after the father’s child support obligation terminated under Connecticut’s lower age of majority.

For the following three reasons, we reject the expired order concept.

First, a subsequent child support order is a “modification” as defined by the federal statute. The FFCCSOA defines “modification” of a child support order and, under the Supremacy Clause of the United States Constitution, we are bound to follow that definition.

A modification is “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B [b]). Here, the New York order changed the amount of the initial order (increasing it by $100 per week), the scope of the initial order (adding a provision for college expenses), and the duration of the initial order (extending the father’s obligation for three years). Undoubtedly, the New York order was “made subsequent” to the Connecticut order. Therefore, under the plain language of the federal statute, a second order for child support is a “modification” of Connecticut’s order.

Second, the drafters of UIFSA clearly intended the same result. Under New York’s version of UIFSA, “[a] tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state” (Family Ct Act § 580-611 [c]). In Connecticut, a court may issue an order of support for a child who is under the age of 18 (Conn Gen Stat Ann § 46b-215 [a] [l]). Therefore, even if New York had subject matter jurisdiction to modify the Connecticut order, Connecticut law would control the duration of the father’s support obligation.

This interpretation of UIFSA is supported by the 2001 amendments to the uniform act. Although New York has not adopted the 2001 amendments, and they are not binding on this Court, they do provide insight into the intended meaning of New York’s existing statute. The 2001 amendments specifically reject the expired order concept because it subverts a significant policy underlying the Act. However, according to the drafters’ comments,

“From its original promulgation UIFSA determined that the duration of child-support obligation should be fixed by the controlling order ... If the language was insufficiently specific before . . . 2001, the amendments should make this decision absolutely clear. The original time frame for support is not modifiable unless the law of the issuing State provides for modification of its duration. Some courts have sought to subvert this policy by bolding that completion of the obligation to support a child through age 18 established by the now-completed controlling order does not preclude the imposition of a new obligation thereafter to support the child through age 21” (Uniform Interstate Family Support Act [2001] § 611, Comment [emphasis added]).

Notably, courts from other states have enforced the one-order policy of UIFSA by declining to issue a second child support order where the issuing state’s order had expired (see Marshak v Weser, 390 NJ Super 387, 915 A2d 613 [2007] [New Jersey could not extend the duration or scope of a Pennsylvania child support order, even after the obligor’s support obligation terminated]; Sheetz v Sheetz, 840 A2d 1000, 2003 PA Super 512 [2003] [Maryland law controls the duration of its child support orders and petitioner could not institute a new proceeding in Pennsylvania after expiration of the Maryland order]; Lunceford v Lunceford, 204 SW3d 699 [Mo Ct App 2006] [Missouri court was prohibited from extending a Kansas child support order beyond the age of emancipation in Kansas]). In each case the court relied on the policy underlying UIFSA even though—as here—the state legislature had not adopted the 2001 amendments (see Marshak, 390 NJ Super at 392, 915 A2d at 616; Sheetz, 840 A2d at 1004; Lunceford, 204 SW3d at 707-708).

Third, we reject the expired order concept in order to promote the principle of comity embedded in the FFCCSOA and UIFSA. A secure one-order child support system is critical to the proper administration of child support orders—New York’s as well as those of other states—and to ensuring that children receive the support to which they are entitled.

Therefore, the New York order is a modification of the Connecticut order. Because the father still resides in Connecticut, that state has continuing, exclusive jurisdiction of the child support order—despite termination of the father’s obligations for his eldest son under that order—and New York does not have subject matter jurisdiction to modify that order.

We are well aware of New York’s strong policy interest in assuring that both parents fulfill their support obligations throughout their children’s first 21 years of life (see Family Ct Act § 413 [1] [a]). Where a parent has the means to do so, we certainly hope those parental obligations will be met for the sake of the child’s well-being. We are without jurisdiction, however, to compel this father to honor his parental responsibilities to his eldest son.

Finally, the father’s request to recoup payments he made to the mother as a result of the child support order issued by Family Court cannot be determined on this record and should, on remittal, be addressed by Family Court (including all offsets due the mother).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Family Court for further proceedings in accordance with this opinion.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

      . In August 2005, he began attending college. At that time, his tuition, housing and meal plan cost approximately $10,706 per semester.

      . A state may also modify a child support order upon consent of all the parties, despite the parties’ state of residence (see 28 USC § 1738B [e] [2] [B]; Family Ct Act § 580-611 [a] [2]). No such consent exists in this case.

      . If a child is unmarried and enrolled in a full-time high school, a court may order child support until “such child completes the twelfth grade or attains the age of nineteen, whichever occurs first” (Conn Gen Stat Ann § 46b-215 [a] [1]).


author: Ciparick, J.

text:
    [ 883 NE2d 990, 854 NYS2d 83]
    Arnel Samiento et al., Appellants, v World Yacht Inc. et al., Respondents.
    Argued January 10, 2008;
    decided February 14, 2008

      POINTS OF COUNSEL

      Law Office of Steven M. Sack, New York City (Scott A. Lucas of counsel), for appellants.
    I. The Appellate Division erred by not accepting the complaint’s allegations as true on a pre-answer motion to dismiss. (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300; Bynog v Cipriani Group, 298 AD2d 164, 1 NY3d 193.) II. The Appellate Division also erred as a matter of law in concluding that Labor Law § 196-d only applies to “voluntary” gratuities.
      (Matter of Kamhi v Planning Bd. of Town of Yorktown, 59 NY2d 385; Weinberg v D-M Rest. Corp., 53 NY2d 499; United States v 306 Cases Containing Sandford Tomato Catsup with Preservative, 55 F Supp 725, affd sub nom. Libby, McNeill & Libby v United States, 148 F2d 71; Kelly v United States, 789 F2d 94; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Sosa v Alvarez-Machain, 542 US 692; Zion v Kurtz, 50 NY2d 92; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Department of Housing & Urban Development v Rucker, 535 US 125; Naghavi v New York Life Ins. Co., 260 AD2d 252.) III. Plaintiffs’ General Business Law § 349 claim is cognizable as a matter of law. (Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200; Karlin v IVF Am., 93 NY2d 282; Stutman v Chemical Bank, 95 NY2d 24; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20; Small v Lorillard Tobacco Co., 94 NY2d 43.) IV Plaintiffs’ unjust enrichment claim is properly pleaded. (Carriafielio-Diehl & Assoc., Inc. v D&M Elec. Contr., Inc., 12 AD3d 478; Joseph Sternberg, Inc. v Walber 36th St. Assoc., 187 AD2d 225; Smith v Kirkpatrick, 305 NY 66; O’Brien v City of Syracuse, 54 NY2d 353; Hochman v LaRea, 14 AD3d 653.)

      Kauff McClain & McGuire LLP, New York City (Dennis A. Lalli and J. Patrick Butler of counsel), for respondents.
    I. The Appellate Division correctly dismissed the Labor Law § 196-d claim under CPLR 3211 (a) (7) because it ruled as a matter of pure statutory construction, without resolving any factual disputes and accepting all of plaintiffs’ allegations as true. (Rosner v Paley, 65 NY2d 736.) II. The Appellate Division correctly held that the “service charges” imposed on World Yacht Inc.’s banquet patrons are not “gratuities” within the plain meaning and scope of Labor Law § 196-d. (Weinberg v D-M Rest. Corp., 53 NY2d 499; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Orens v Novello, 99 NY2d 180; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Scoglio v County of Suffolk, 85 NY2d 709; Bynog v Cipriani Group, 298 AD2d 164, 1 NY3d 193; Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464; State of New York v GTE Valeron Corp., 155 AD2d 166; Seenaraine v Securitas Sec. Servs. USA, Inc., 37 AD3d 700; Restaurants & Patisseries Longchamps v Pedrick, 52 F Supp 174.) III. The Appellate Division correctly dismissed the first cause of action as it pertains to tour and travel agency patron tickets. IV The second cause of action was properly dismissed because the complaint completely fails to allege a violation of General Business Law § 349. (Stutman v Chemical Bank, 95 NY2d 24; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20; New York Univ. v Continental Ins. Co., 87 NY2d 308; U.W. Marx, Inc. v Bonded Concrete, Inc., 7 AD3d 856; Teller v Bill Hayes, Ltd., 213 AD2d 141; Genesco Entertainment, Div. of Lymutt Indus., Inc. v Koch, 593 F Supp 743; Varela v Investors Ins. Holding Corp., 81 NY2d 958; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314; Small v Lorillard Tobacco Co., 94 NY2d 43; Bildstein v MasterCard Intl. Inc., 329 F Supp 2d 410.) V. The Appellate Division correctly dismissed the third cause of action for unjust enrichment. (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Beth Israel Med. Ctr. v Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F3d 573; Whitman Realty Group, Inc. v Galano, 41 AD3d 590; Sperry v Crompton Corp., 8 NY3d 204; Fisher v Museum of Cartoon Art, 303 AD2d 548.) VI. World Yacht Inc.’s tax treatment of service charges is legally irrelevant to the question of whether those charges are gratuities within the meaning of Labor Law § 196-d. (Matter of La Cascade, Inc. v State Tax Commn., 91 AD2d 784; Naghavi v New York Life Ins. Co., 260 AD2d 252; In re Sampson, 997 F2d 717.)

      Andrew M. Cuomo, Attorney General, New York City (Barbara D. Underwood, Michelle Aronowitz, Jennifer S. Brand, Sasha Samberg-Champion, Seth Kupferberg and Donya Fernandez of counsel), and Maria Colavito for Attorney General of the State of New York and another, amici curiae.
    I. The charges described in the complaint are charges “purported to be a gratuity” within the meaning of Labor Law § 196-d. (Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104; United States v McGuire, 64 F2d 485; United States v 306 Cases Containing Sandford Tomato Catsup with Preservative, 55 F Supp 725, affd sub nom. Libby, McNeill & Libby v United States, 148 F2d 71; Matter of Chester field Assoc. v New York State Dept. of Labor, 4 NY3d 597; Matter of Howard v Wyman, 28 NY2d 434; Matter of Sarbro: VII v State of N.Y. Indus. Bd. of Appeals, 215 AD2d 956; Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342; Bynog v Cipriani Group, 298 AD2d 164; United States v Indianapolis Athletic Club, Inc., 818 F Supp 1250; Matter of La Cascade, Inc. v State Tax Commn., 91 AD2d 784.) II. Plaintiffs allege sufficient deception and injury to support a claim for consumer fraud under General Business Law § 349. (Stutman v Chemical Bank, 95 NY2d 24; Karlin v IVF Am., 93 NY2d 282; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20; Small v Lorillard Tobacco Co., 94 NY2d 43;
      Securitron Magnalock Corp. v Schnabolk, 65 F3d 256; New York v Feldman, 210 F Supp 2d 294; Melino v Equinox Fitness Club, 6 AD3d 171; Baron v Pfizer, Inc., 42 AD3d 627; Donahue v Ferolito, Vultaggio & Sons, 13 AD3d 77; Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 344 F3d 211.)

      McNamee, Lochner, Titus & Williams, P.C., Albany (David J. Wukitsch of counsel), for New York State Restaurant Association, amicus curiae.
    I. Federal law and decisions of the New York Industrial Board of Appeals hold that service charges are not gratuities. II. The position urged by the Attorney General would introduce uncertainty into the law and should be rejected.

      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Marc Falcone of counsel), and David A. Colodny for Urban Justice Center and others, amici curiae.
    I. The reasonable customer generally understands a “service charge” to substitute for and displace the customary tip. (Hai Ming Lu v Jing Fong Rest., Inc., 503 F Supp 2d 706.) II. Labor Law § 196-d applies to mandatory fees and charges. III. Restaurant and banquet operations can easily minimize doubt about a reasonable customer’s understanding of a service charge. (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144.) IV Contrary to the New York State Restaurant Association’s argument, the text and legislative history show that Labor Law § 196-d applies to banquet charges purported to be gratuities.
   OPINION OF THE COURT

Ciparick, J.

In Bynog v Cipriani Group (1 NY3d 193 [2003]), we left open the question as to whether Labor Law § 196-d, which forbids an employer from retaining any part of a gratuity or “any charge purported to be a gratuity” for an employee applies only to a voluntary gratuity or tip presented by a customer or whether it may also apply to a service charge that is held out to the customer as a substitute for a tip. We conclude that a charge that is not a voluntary payment may be a “charge purported to be a gratuity” within the meaning of the statute.

As alleged in the complaint, plaintiffs are former and present restaurant servers who claim their employers violated Labor Law § 196-d by failing to properly remit the money collected as either service charges, gratuities included within the ticket price or automatic gratuities added at the time of purchase of a ticket for three types of dining cruises provided by defendants: banquet cruises, general public dining and special events cruises. All of the dining cruises take place in New York harbor on boats either owned and/or operated by defendants. Banquet cruises are private events which involve either individual or corporate patrons that have contracted with defendants to charter an entire vessel for celebratory, ceremonial, charitable or corporate purposes. General public dining cruises are attended by members of the general public who purchase individual tickets either from defendants directly or from designated travel and tour operators; as to these cruises, plaintiffs’ complaint is limited to charges paid by customers in the latter category. Special event dining cruises are held on major holidays, such as July 4th and New Year’s Eve, and are similar to the general public dining cruises in that tickets are available to the general public; however, tickets for special event cruises are sold at a significantly higher price. Meals and drinks are served at all three types of cruises. Plaintiffs characterize the meals and drinks provided on these cruises as luxury dining in which customers would expect to pay a gratuity of between 15% to 20%. Defendants pay their employee waitstaff an hourly wage which varies according to the type of cruise. Tips are allowed although are seldom collected, allegedly because patrons believe the tip is included in the price of the cruise.

Plaintiffs’ complaint asserts seven causes of action. The first cause of action alleges World Yacht violated Labor Law § 196-d by withholding gratuities from its waitstaff with respect to all three types of cruises. In relation to defendants’ banquet cruises, plaintiffs assert that defendants told inquiring customers that the 20% service charge is remitted to defendants’ waitstaff as the gratuity, but then failed to distribute any amount of the service charge to their waitstaff. Plaintiffs further argue that defendants should be precluded from treating the 20% banquet service charge as anything other than a gratuity because defendants presented banquet patrons with bills which segregated and excluded the banquet service charge from other banquet charges thereby treating the banquet service charge like a gratuity for sales tax purposes, and presumably for income tax purposes as well. As to the general public dining cruises (to the extent customers come through travel and tour operators) and special event cruises, plaintiffs assert that World Yacht manipulated the custom of tipping by representing to the customer that the gratuity was included in the ticket price but then only remitting to its employees a gratuity of between 4% to 7%.

Plaintiffs’ second cause of action alleges that World Yacht violated General Business Law § 349 by (1) misrepresenting to its banquet customers that the 20% service charge would be remitted to the waiters, (2) misrepresenting to its general public dining cruise patrons that the ticket price included the gratuity and (3) misrepresenting to its special event patrons that upon purchasing a ticket for a special event cruise, an automatic gratuity is added to the price of the ticket at the time of purchase. Plaintiffs’ third cause of action alleges defendants were unjustly enriched by wrongfully retaining gratuities meant for their waitstaff. Plaintiffs’ remaining causes of action alleging violations of federal and state wage and labor laws are not relevant to this appeal. Defendants moved for an order pursuant to CPLR 3211 (a) (7) to dismiss plaintiffs’ first three causes of action for failure to state a claim. Supreme Court granted, in part, defendants’ motion by dismissing plaintiffs’ General Business Law § 349 action in its entirety, and relying on the Appellate Division’s decision in Bynog v Cipriani Group (298 AD2d 164 [1st Dept 2002], affd as mod 1 NY3d 193 [2003]), dismissed that portion of plaintiffs’ Labor Law § 196-d cause of action which alleged defendants failed to remit the 20% service charge collected at banquet cruises. The Appellate Division unanimously modified, on the law, dismissing plaintiffs’ unjust enrichment claim and the remainder of the first cause of action holding that special event and public dining patrons “paid a mandatory service charge that was not in the nature of a voluntary gratuity, and thus the failure to remit any of this charge to the waitstaff did not constitute a violation of section 196-d, notwithstanding defendants’ treatment of the charge for sales or income tax purposes, and the fact that certain patrons believed the charge to be in the nature of a gratuity” (38 AD3d 328, 328-329 [2007]) and otherwise affirmed. The Appellate Division certified the following question: “Was the order of the Supreme Court, as modified by the decision and order of this Court, properly made?” We answer the certified question in the negative and hold that plaintiffs sufficiently pleaded a cause of action for violation of Labor Law § 196-d.

In relation to gratuities, Labor Law § 196-d requires that:

“No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.”

Labor Law § 196-d further states in its last sentence that:

“Nothing in this subdivision shall be construed as affecting . . . practices in connection with banquets and other special functions where a fixed percentage of the patron’s bill is added for gratuities which are distributed to employees, nor to the sharing of tips by a waiter with a busboy or similar employee.”

In Bynog v Cipriani Group (1 NY3d 193, 196 [2003]) we held “that because plaintiffs were independent contractors and not employees of the defendants, they [we]re not entitled to recover [service charge] payments.” However, we “reserve[d] judgment as to whether those waiters would be entitled to a share of [the] service charge under Labor Law § 196-d if [the waitstaff] were employees” (id. at 199 n 4). On this appeal plaintiffs, supported by the New York State Attorney General and the New York State Department of Labor (NYSDOL), assert defendants violated Labor Law § 196-d by informing their banquet patrons that the 20% service charge was waitstaff s tip. Plaintiffs further assert that World Yacht violated Labor Law § 196-d by telling its travel and tour patrons as well as its special events patrons that a gratuity was included within the ticket price for the cruise.

Defendants assert that in order to constitute a gratuity, within the purposes of Labor Law § 196-d, a payment must be voluntary and not mandatory and that the payments here were mandatory. In Weinberg v D-M Rest. Corp. (53 NY2d 499, 507 [1981]), we quoted with approval the Arizona Supreme Court’s determination in Beaman v Westward Ho Hotel Co. (89 Ariz 1, 4-5, 357 P2d 327, 329 [1960]) that “[a] tip is in law, if not always in fact, a voluntary payment.” We also cited, with approval, Peoria Hotel Co. v Illinois Dept. of Revenue (87 Ill App 3d 176, 178-179, 408 NE2d 1182, 1184 [1980]) which held that a fixed percent gratuity charge added to banquet customers’ bills was really a mandatory charge.

We have stated that “[w]hen presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature” (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006] [internal quotation marks and citation omitted]). “The language of a statute is generally construed according to its natural and most obvious sense ... in accordance with its ordinary and accepted meaning, unless the Legislature by definition or from the rest of the context of the statute provides a special meaning” (McKinney’s Cons Laws of NY, Book 1, Statutes § 94, at 191-194 [1971 ed]). Labor Law § 196-d clearly forbids an employer demanding or accepting, “any part of the gratuities, received by an employee, or retaining] any part of a gratuity or of any charge purported to be a gratuity for an employee.” Plaintiffs’ complaint alleges that World Yacht told inquiring patrons that the service charge is the gratuity, or that it is paid to the waitstaff as additional compensation in place of a gratuity, thus discouraging patrons from leaving an additional tip. Defendants characterize the enactment of Labor Law § 196-d as having no manifestation of legislative intent for the term “gratuity” to encompass charges such as the mandatory banquet service charges at issue. We disagree. The language of the statute states that it is a violation of Labor Law § 196-d to “retain any part of a gratuity or . . . any charge purported to be a gratuity for an employee.” We have repeatedly stated that “where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d 578, 581 [2006] [brackets omitted], quoting Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). Given the language, “any charge [] purported [] to be a gratuity” and the remedial nature of Labor Law § 196-d, such language should be liberally construed in favor of the employees. Both the plain meaning of Labor Law § 196-d and its legislative history establish that the service charges at issue in this appeal are contemplated within Labor Law § 196-d. Even if the charge is mandatory, and not subject to negotiation, when a complaint asserts, as plaintiffs’ complaint asserts here, that a service charge has been represented to the consumer as compensation to defendants’ waitstaff in lieu of the gratuity, such allegation is covered within the statutory language of Labor Law § 196-d. It is well settled that a court, when deciding whether to grant a motion to dismiss pursuant to CPLR 3211, must take the allegations asserted within a plaintiffs complaint as true and accord plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]).

We agree with the Attorney General of the State of New York and the NYSDOL, charged with enforcing Labor Law § 196-d, that the standard under which a mandatory charge or fee is purported to be a gratuity should be weighed against the expectation of the reasonable customer as this standard is consistent with the purpose of Labor Law § 196-d. The Labor Department’s interpretation of a statute it is charged with enforcing is entitled to deference. The construction given statutes and regulations by the agency responsible for their administration, “if not irrational or unreasonable,” should be upheld (see Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 NY3d 597, 604 [2005], quoting Matter of Howard v Wyman, 28 NY2d 434, 438 [1971]).

The NYSDOL’s opinion letters support our holding that a banquet charge, like any charge can “purport[ ] to be a gratuity” and that the reasonable patron standard should govern when determining whether a banquet patron would understand a service charge was being collected in lieu of a gratuity. The NYSDOL in an opinion letter dated March 26, 1999, stated that

“[i]f the employer’s agents lead the patron who purchases a banquet or other special function to believe that the contract price includes a fixed percentage as a gratuity, then that percentage of the contract price must be paid in its entirety to the waiters, busboys and ‘similar employees’ who work at that function, even if the contract makes no reference to such a gratuity.”

World Yacht asserts that the last sentence of Labor Law § 196-d exempts the banquet industry from the proscription of Labor Law § 196-d and allows an employer to retain service charges. We disagree. The legislative history of the last sentence makes what has been referred to as the banquet exception quite clear. The New York State Hotel & Motel Association, Inc. requested the inclusion of this language upon the drafting of Labor Law § 196-d in order to ensure the industry could continue its common practice of applying a fixed percentage, or lump sum payment, to a banquet patron’s bill as a gratuity which then was distributed to all personnel engaged in the function, waitstaff, bartenders, busboys and all other similar employees. It was feared that without this language the practice of pooling for later distribution of tips to all involved employees would be prohibited because upon receiving payment, a person could believe they were entitled to retain the entire amount and not share with the rest of the personnel who worked the banquet (see Letter from NY State Hotel & Motel Assn, May 21, 1968, Bill Jacket, L 1968, ch 1007, at 12). Therefore World Yacht’s contention that banquet service charges are not contemplated within “any charge purported to be a gratuity” is incorrect.

As further indication that defendants held out the mandatory service charges as gratuities, plaintiffs point to World Yacht’s tax treatment of these monies. Supreme Court declined to examine defendants’ treatment of the service charge at issue for tax purposes, while the Appellate Division found no violation of section 196-d, “notwithstanding defendants’ treatment of the charge for sales or income tax purposes” (38 AD3d 328, 329 [2007]). We cannot accept this proposition. Plaintiffs should be entitled to show defendants’ tax treatment of the charges since charges that are treated as gratuities for tax purposes could also be represented to patrons as being gratuities as well.

We likewise disagree with the Appellate Division that no Labor Law § 196-d violation existed with respect to special event cruises and public dining cruises booked through travel and tour operators. That court held that “[a] 11 of these patrons paid a mandatory service charge that was not in the nature of a voluntary gratuity, and thus the failure to remit any of this charge to the waitstaff did not constitute a violation of section 196-d” (38 AD3d 328, 328-329 [2007]). We hold that the statutory language of Labor Law § 196-d can include mandatory charges when it is shown that employers represented or allowed their customers to believe that the charges were in fact gratuities for their employees. An employer cannot be allowed to retain these monies. Thus plaintiffs’ first cause of action should be reinstated in its entirety and plaintiffs should be allowed to go forward on this cause of action as it relates to all three types of cruises.

Turning to plaintiffs’ second cause of action alleging that World Yacht engaged in deceptive consumer practices under General Business Law § 349, we conclude that it was properly dismissed. In order to assert a prima facie cause of action under General Business Law § 349, a plaintiff must be able to establish that a defendant intended to deceive its customers to the customers’ detriment and was successful in doing so. “[P]roof that a material deceptive act or practice caused actual, although not necessarily pecuniary, harm is required to impose compensatory damages” (Small v Lorillard Tobacco Co., 94 NY2d 43, 56 [1999] [internal quotation marks, emphasis and citation omitted]). Since plaintiffs here cannot show how World Yacht’s customers suffered a detriment by agreeing to pay the service charges, the automatic gratuities, or the added gratuities, plaintiffs failed to establish a prima facie claim under General Business Law § 349 and therefore plaintiffs’ second cause of action was properly dismissed.

As to plaintiffs’ third cause of action for unjust enrichment, this action does not lie as plaintiffs have an adequate remedy at law and therefore this claim was likewise properly dismissed. We have reviewed all other arguments and find them without merit.

Accordingly, the Appellate Division’s order should be modified, without costs, by reinstating plaintiffs’ first cause of action and, as so modified, affirmed. The certified question should be answered in the negative.

Judges Graffeo, Read, Smith, Pigott and Jones concur; Chief Judge Kaye taking no part.

Order modified, etc.

      . “World Yacht” refers to all of the defendants collectively, including New York Cruise Lines Inc., World Yacht Inc., World Yacht LLC and World Yacht Limited Partnership.

      . Black’s Law Dictionary 248 (8th ed 2004) (hereinafter Black’s) defines “charge,” in pertinent part, as “[t]o demand a fee [or] to bill.” Merriam Webster’s Collegiate Dictionary 192 (10th ed 1993) (hereinafter Webster’s) defines “charge,” in pertinent part, as “expense [or] cost [and] the price demanded for something.”

      . “Purport” or “purported” have been variously defined as: “[r]eputed [or] rumored”; “[t]he idea or meaning that is conveyed or expressed”; and “[t]o profess or claim, esp. falsely; to seem to be” (see Black’s at 1271; see also Webster’s at 949 [defining “purported” as: “reputed (or) alleged” and “purport” as: “meaning conveyed, professed, or implied” and “to have the often specious appearance of being, intending, or claiming (something implied or inferred)”]).

      . The drafters of Labor Law § 196-d sought to end the “unfair and deceptive practice” of an employer retaining money paid by a patron “under the impression that he is giving it to the employee, not to the employer” (see Mem of Indus Commr, June 6, 1968, Bill Jacket, L 1968, ch 1007, at 4).