author: Pigott, J. Rivera, J.

text:
    [25 NE3d 928, 2 NYS3d 15]
    Sue/Perior Concrete & Paving, Inc., Respondent, v Lewiston Golf Course Corporation, Appellant, et al., Defendants.
    Argued October 22, 2014;
    decided November 25, 2014

      POINTS OF COUNSEL

      Hobbs, Straus, Dean & Walker, LLP, Portland, Oregon {Edmund C. Goodman of counsel), and Phillips Lytle LLP, Buffalo {Michael B. Powers, Sean C. McPhee and Alan M. Wishnoff of counsel), for appellant.
    I. The Appellate Division improperly placed the burden on Lewiston Golf Course Corporation to prove that it was a sovereign arm of the Seneca Nation of Indians. (Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832; Alvarado v Table Mtn. Rancheria, 509 F3d 1008.) II. Lewiston Golf Course Corporation, like the other Seneca Nation of Indians entities created in furtherance of the Seneca Nation’s gaming operations, possesses the Nation’s sovereign immunity as an arm of the Nation. (Matter of Ransom v St. Regis Mohawk Educ. & Community Fund, 86 NY2d 553; Santa Clara Pueblo v Martinez, 436 US 49; Matter of Patterson v Seneca Nation, 245 NY 433; Kiowa Tribe of Okla. v Manufacturing Technologies, Inc., 523 US 751; Oklahoma Tax Comm’n v Citizen Band of Potawatomi Tribe of Okla., 498 US 505; Pink v Modoc Indian Health Project, Inc., 157 F3d 1185; Barker v Menominee Nation Casino, 897 F Supp 389; Bassett v Mashantucket Pequot Tribe, 204 F3d 343; Warren v United States, 859 F Supp 2d 522; Myers v Seneca Niagara Casino, 488 F Supp 2d 166.) III. Lewiston Golf Course Corporation’s sovereign status is a bar to a mechanic’s lien foreclosure action in New York. (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512; Umbaugh Bldrs. v Parr Co. of Suffolk, 86 Misc 2d 1036; Parisi v Hubbard, 226 App Div 280; Spitz v Brooks & Son, Inc., 210 App Div 438; United States v Alabama, 313 US 274; Kiowa Tribe of Okla. v Manufacturing Technologies, Inc., 523 US 751; Alvarado v Table Mtn. Rancheria, 509 F3d 1008; Harlem Plumbing Supply Co. v Handelsman, 40 AD2d 768; Parisi v Hubbard, 226 App Div 280.) IV Sue/ Perior Concrete & Paving, Inc.’s fraud claim must be dismissed because it does not exist separately from its breach of contract claim. (Deering v Karin, 285 AD2d 977; Rich v Orlando, 108 AD3d 1039; Egan v New York Care Plus Ins. Co., 277 AD2d 652; A.L. Eastmond & Sons, Inc. v Keevily, Spero-Whitelaw, Inc., 107 AD3d 503; Williams Oil Co. v Randy Luce E-Z Mart One, 302 AD2d 736; Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107; Freyne v Xerox Corp., 98 AD2d 965; Charles v Onondaga Community Coll., 69 AD2d 144; New York Univ. v Continental Ins. Co., 87 NY2d 308.)

      Duke, Holzman, Photiadis & Gresens LLP, Buffalo (Gregory P. Photiadis and Elizabeth A. Kraengel of counsel), for respondent.
    I. The Appellate Division properly placed the burden of proof to establish that Lewiston Golf Course Corporation is an “arm” of the Seneca Nation of Indians on Lewiston Golf Course Corporation as the entity seeking to cloak itself with tribal immunity from suit. (Gristede’s Foods, Inc. v Unkechuage Nation, 660 F Supp 2d 442; Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832; Alvarado v Table Mtn. Rancheria, 509 F3d 1008; Seneca Nation of Indians v State of New York, 26 F Supp 2d 555, 178 F3d 95; Garcia v Akwesasne Hous. Auth., 268 F3d 76.) II. Lewiston Golf Course Corporation is not cloaked with the Seneca Nation of Indians’s sovereign immunity from suit. (Matter of Ransom v St. Regis Mohawk Educ. & Community Fund, 86 NY2d 553; Dillon v Yankton Sioux Tribe Hous. Auth., 144 F3d 581; Hagen v Sisseton-Wahpeton Community Coll., 205 F3d 1040; Pink v Modoc Indian Health Project, Inc., 157 F3d 1185; Breakthrough Mgt. Group, Inc. v Chukchansi Gold Casino & Resort, 629 F3d 1173; Dole Food Co. v Patrickson, 538 US 468; Filler v Hanvit Bank, 378 F3d 213; In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 198 F Supp 2d 420; Ocean Line Holdings Ltd. v China Natl. Chartering Corp., 578 F Supp 2d 621; Allen v Gold Country Casino, 464 F3d 1044.) III. Even if Lewiston Golf Course Corporation may invoke the Seneca Nation of Indians’s sovereign immunity from suit, the mechanic’s lien foreclosure action may proceed because New York courts have in rem jurisdiction over the golf course property. (Pennoyer v Neff, 95 US 714; Parisi v Hubbard, 226 App Div 280; Burroughs v Tostevan, 75 NY 567; Kane Co. v Kinney, 174 NY 69;
      Hope v Shevill, 137 App Div 86, 204 NY 563; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Cody v Turn Verein, 48 App Div 279, 167 NY 607; Onondaga Sav. Bank v Cale Dev. Co., 63 AD2d 415; Shaffer v Heitner, 433 US 186; Central Va. Community College v Katz, 546 US 356.) IV Sue/ Perior Concrete & Paving, Inc.’s cause of action for fraud is not duplicative of its breach of contract cause of action. (First Bank of Ams. v Motor Car Funding, 257 AD2d 287; Eagle Comtronics v Pico Prods., 256 AD2d 1202.)

      Christopher Karns, General Counsel, Seneca Nation of Indians Department of Justice, Salamanca (Owen Herne of counsel), Godfrey & Kahn, S.C., Milwaukee, Wisconsin {Brian L. Pierson of counsel), and Harter Secrest & Emery LLP, Buffalo {John G. Horn of counsel), for Seneca Nation of Indians, amicus curiae.
    I. The Matter of Ransom v St. Regis Mohawk Educ. & Community Fund (86 NY2d 553 [1995]) decision does not compel application of a multifactor test. (Seaport Loan Prods., LLC v Lower Brule Community Dev. Enter. LLC, 41 Misc 3d 1218[A], 2013 NY Slip Op 51765[U]; Altheimer & Gray v Sioux Mfg. Corp., 983 F2d 803; Pueblo of Santa Ana v Hodel, 663 F Supp 1300.) II. Federal law supports a simple, two-part test to determine the immunity of a tribal entity. (Kiowa Tribe of Okla. v Manufacturing Technologies, Inc., 523 US 751; Mescalero Apache Tribe v Jones, 411 US 145; Inyo County v Paiute-Shoshone Indians of Bishop Community of Bishop Colony, 538 US 701; Breakthrough Mgt. Group, Inc. v Chukchansi Gold Casino & Resort, 629 F3d 1173; Native Am. Distrib. v Seneca-Cayuga Tobacco Co., 546 F3d 1288; Somerlott v Cherokee Nation Distribs., Inc., 686 F3d 1144; Miner Elec., Inc. v Muscogee [Creek] Nation, 505 F3d 1007; Panama R. Co. v Curran, 256 F 768; Allen v Gold Country Casino, 464 F3d 1044; Cook v AVI Casino Enters., Inc., 548 F3d 718.) III. Lewiston Golf Course Corporation enjoys the Seneca Nation of Indians’s sovereign immunity from suit under the proposed two-part test.
   OPINION OF THE COURT

Pigott, J.

Defendant Lewiston Golf Course Corporation (Lewiston Golf) is an indirect, wholly owned subsidiary of the Seneca Nation of Indians, a federally recognized Indian tribe. We are asked to decide whether that corporation is protected from suit by the Seneca Nation’s sovereign immunity. Applying the factors set out in Matter of Ransom v St. Regis Mohawk Educ. & Community Fund (86 NY2d 553 [1995]), we hold that it is not.

L

In 2002, the Seneca Nation’s legislative body, the Tribal Council, granted a corporate charter to Seneca Gaming Corporation (Seneca Gaming), under the laws of the Seneca Nation, to develop, finance, operate and maintain gaming facilities. Seneca Gaming is wholly owned by the Seneca Nation. In the same year, again under the laws of the Seneca Nation, the Tribal Council granted a corporate charter to Seneca Niagara Falls Gaming Corporation (Seneca Niagara), created as a wholly owned subsidiary of Seneca Gaming, to develop, finance, operate and conduct the business of the Nation’s gaming operations in Niagara County specifically. Seneca Gaming and Seneca Niagara are two of the most financially successful revenue-producing assets of the Seneca Nation.

Lewiston Golf was incorporated in June 2007, under the laws of the Seneca Nation, as a wholly owned subsidiary of Seneca Niagara, to develop, finance, operate and conduct the business of an 18-hole golf course in the Town of Lewiston. The following month, it acquired real property from Seneca Niagara, on which to construct the golf course. The property is not part of any Indian reservation and is not sovereign land.

As Lewiston Golfs predecessor had explained in its application to Niagara County Industrial Development Agency for tax abatements and deferrals, it was “looking to create a championship level public/semi-private golf course offering the millions of visitors [to] the Niagara Falls region and the patrons of the Seneca Niagara Casino & Hotel a new tourist destination project that will attract golf enthusiasts from Canada and the United Statest,] and to capitalize on the growing tourist market, which will create new jobs and allow for prolonged stays in the area.”

In resolving to authorize the creation of Lewiston Golf, the Tribal Council stated that

“the Lewiston Golf Course [would] be developed and operated as an amenity to [Seneca Niagara]’s casino operations, together with the casino’s lodging, dining, retail and entertainment amenities, the purpose of which amenities is to enhance the overall success and profitability of the casino’s operations consistent with the powers described in [Seneca Niagara]’s charter and the purposes for which [Seneca Niagara] was formed . . .
“[T]he use of a separate corporation or legal entity to own and operate the Lewiston Golf Course is advisable due to various legal and accounting considerations, including the status of the Lewiston Golf Course as an off-territory business venture of the Nation, subject to legal, tax and other requirements that are not applicable to the Nation’s on-territory business . . .
“[T]he Nation desires to establish Lewiston Golf ... as a separate legal entity, governmental instrumentality of the Nation, and wholly-owned subsidiary of [Seneca Niagara], for the purpose of developing and operating the Lewiston Golf Course in the Town of Lewiston, New York, and legally doing business in such jurisdictions.”

Lewiston Golfs charter describes in detail the nature of the relation between it and the Seneca Nation. The charter provides that

• “[n]o activity of [Lewiston Golf] nor any indebtedness incurred by it shall encumber, implicate or in any way involve assets of the Nation or another Nation Entity not assigned or leased in writing to [Lewiston Golf]”
• “the Nation shall not be liable for the debts or obligations of [Lewiston Golf], and [Lewiston Golf] shall have no power to pledge or encumber the assets of the Nation”
• “[t]he Obligations of [Lewiston Golf] shall not be a debt of the Nation or of [Seneca Gaming] or any other Nation-chartered Gaming corporation” and
• “[Lewiston Golf] shall not have . . . any power ... to borrow or lend money on behalf of the Nation, or to grant or permit or purport to grant or permit any right, lien, encumbrance or interest in or on any of the assets of the Nation.”

On the other hand, the Boards of Directors of Lewiston Golf, Seneca Gaming, and Seneca Niagara are identical, are appointed by the Tribal Council, and during this dispute were composed entirely of enrolled members of the Seneca Nation. Lewiston Golf, like Seneca Gaming and Seneca Niagara, is required by its charter to obtain approval from the Seneca Nation before undertaking significant expenditures of resources or personal property; adopting, amending, or repealing corporate bylaws; providing significant guarantees or incurring significant liabilities; lending money to other Seneca Nation entities; buying, selling, or encumbering real property; entering into financing arrangements involving securities; or entering into, performing, or canceling contracts with any government or government agency. Lewiston Golf, like Seneca Gaming and Seneca Niagara, must keep detailed corporate and financial records and submit for the Seneca Nation’s approval an annual statement of its financial condition. And Lewiston Golf, once again like Seneca Gaming and Seneca Niagara, is required to receive consent from the Seneca Nation before taking such legal actions as commencing a lawsuit, consenting to a court’s jurisdiction, or waiving a claim to sovereign immunity.

IL

In the summer of 2007, plaintiff Sue/Perior Concrete & Paving, Inc. (Sue/Perior) entered into a contract with Lewiston Golf, whereby Sue/Perior would build a golf course on the property, for the sum of $12,700,000. However, the business relationship between Sue/Perior and Lewiston Golf deteriorated in 2009. Sue/Perior demanded payment of certain bills; Lewiston Golf insisted that Sue/Perior was seeking remuneration for work not done or exaggerating its costs. Sue/Perior filed mechanic’s liens, the third of which is in the amount of $4,130,538, for materials furnished and labor performed.

Sue/Perior commenced this foreclosure action against Lewiston Golf and other defendants in June 2010, with respect to that mechanic’s lien. Lewiston Golf counterclaimed for willfully exaggerated lien, fraud, breach of contract, and unjust enrichment. Sue/Perior subsequently amended its complaint to add additional defendants — Seneca Niagara, Seneca Gaming, and 15 corporate officers and directors — and to assert additional causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, quantum meruit, promissory estoppel, and fraud.

Seneca Niagara, Seneca Gaming, Lewiston Golf and the individual defendants moved to dismiss Sue/Perior’s complaint pursuant to CPLR 3211, alleging protection from suit under the sovereign immunity of the Seneca Nation. Supreme Court denied the motion to dismiss, ruling, as pertinent here, that Lewiston Golf did not qualify as an “arm” of the Seneca Nation. Lewiston Golf appealed. For its part, Sue/Perior withdrew claims against all defendants except Lewiston Golf.

The Appellate Division affirmed Supreme Court’s order, as modified in a manner not relevant here (109 AD3d 80 [4th Dept 2013]). In ruling that Lewiston Golf lacked sovereign immunity, the Appellate Division relied on our decision in Matter of Ransom. There, we set out factors for courts to consider when deciding whether a tribal subagency or a corporate entity affiliated with an Indian tribe is entitled to sovereign immunity, as the tribe itself is. The Appellate Division found that most of the Ransom factors, and in particular those that the Ransom court “characterized as the £[m]ore important ]’ financial factors, weigh in favor of a determination that [Lewiston Golf] does not share in the Nation’s sovereign immunity” (109 AD3d at 88, quoting Ransom, 86 NY2d at 559 [some brackets in Appellate Division opinion]). The Appellate Division noted, for example, that “[Lewiston Golf]’s charter clearly provides that [Lewiston Golf] has no power to bind or otherwise obligate the funds of the Nation” and that “the record is devoid of evidence that a lawsuit against [Lewiston Golf] would adversely impact the Nation’s treasury either directly or indirectly” (109 AD3d at 91).

With respect to the non-financial factor comparing Lewiston Golfs purposes with those of the Nation, the Appellate Division found that statements by the Tribal Council and the documents Lewiston Golf submitted to the Industrial Development Agency in support of its request for economic assistance

“reflect that the purpose of [Lewiston Golf] ... is several steps removed from the purposes of tribal government . . .
££[T]he central purpose of the golf course project was not to provide funds for traditional governmental programs or services but, rather, was to serve as a regional economic engine . . .
“Notably absent is any reference to improving the quality of life on reservation lands, creating jobs for Native Americans living on the reservation, or generating funds to support educational, social, or other government-related programs for tribal members” {id. at 89-90).

Finally, the Appellate Division observed “that declining to extend sovereign immunity to [Lewiston Golf] under the circumstances of this case will not diminish the policies underlying tribal sovereign immunity. . . . Here, permitting [Lewiston Golf] to retreat behind the Nation’s cloak of sovereign immunity after it held itself out as an independent, market-participating entity subject to the jurisdiction of the State of New York, including its courts, would discourage non-Indians from entering into business relationships with the Nation’s corporations, which may well retard the Nation’s economic growth and undermine one of the purposes of its sovereign immunity” (109 AD3d at 92 [internal quotation marks, citation and brackets omitted]).

The Appellate Division granted Lewiston Golf leave to appeal to this Court, certifying the question whether its order was properly made. We now affirm and answer the certified question in the affirmative.

III.

Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers, unless waived. In Matter of Ransom, we set out several factors for courts to use to determine whether an entity, such as a corporation or agency, that is affiliated with an Indian tribe has the right to claim sovereign immunity against suit.

“Although no set formula is dispositive, in determining whether a particular tribal organization is an ‘arm’ of the tribe entitled to share the tribe’s immunity from suit, courts generally consider such factors as whether: [1] the entity is organized under the tribe’s laws or constitution rather than Federal law; [2] the organization’s purposes are similar to or serve those of the tribal government; [3] the organization’s governing body is comprised mainly of tribal officials; [4] the tribe has legal title or ownership of property used by the organization; [5] tribal officials exercise control over the administration or accounting activities of the organization; and [6] the tribe’s governing body has power to dismiss members of the organization’s governing body. More importantly, courts will consider whether [7] the corporate entity generates its own revenue, whether [8] a suit against the corporation will impact the tribe’s fiscal resources, and whether [9] the subentity has the power to bind or obligate the funds of the tribe. The vulnerability of the tribe’s coffers in defending a suit against the subentity indicates that the real party in interest is the tribe.” (Ransom, 86 NY2d at 559-560 [internal quotation marks, citations and brackets omitted].)

Applying these factors, we held in Ransom that the St. Regis Mohawk Education and Community Fund — a nonprofit corporation, organized under the District of Columbia Nonprofit Corporation Act, providing educational, health care, social and historical services to residents of the St. Regis Mohawk Reservation in Franklin County — was a tribal entity that enjoyed sovereign immunity from suit. We explained that “[t]he Fund was established to enhance the health, education and welfare of Tribe members, a function traditionally shouldered by tribal government. Additionally, the Fund received its resources from the Tribe, and the Tribe was designated by the Fund as the recipient of its funds and services. Critically, under its by-laws, the Fund’s governing body may only be comprised of elected Chiefs of the Tribe. Thus, the Fund’s provision of social services on behalf of and under the direct fiscal and administrative control of the Tribe renders it an entity so closely allied with and dependent upon the Tribe that it is entitled to the protection of tribal sovereign immunity” (id. at 560).

We begin our discussion of the present appeal with the functions or purposes factor. The question is whether Lewiston Golfs purposes are similar to, or serve, those of the Seneca Nation. The Appellate Division reasoned that Lewiston Golf’s purposes are significantly different from those of tribal government, because Lewiston Golf has functioned to develop an amenity outside the Seneca Nation’s reservation land that would serve as a regional economic engine, not to promote tribal welfare on the reservation directly.

Lewiston Golf and the dissent rely on Kiowa Tribe of Okla. v Manufacturing Technologies, Inc. (523 US 751 [1998]), in which the Supreme Court of the United States held that “[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation” (523 US at 760). In Kiowa Tribe, a private party sued an Indian tribe for defaulting on a promissory note, and asked the courts to limit tribal immunity to suits involving conduct on reservations or involving noncommercial activities. The Supreme Court refused to create a “reservation” or a “commercial activity” exception to the doctrine of tribal sovereign immunity from suit. Recently, a sharply fractured Supreme Court declined to revisit that decision (see Michigan v Bay Mills Indian Community, 572 US —, 134 S Ct 2024 [2014]).

Lewiston Golf contends that it is inconsistent with Kiowa Tribe to treat the fact that an Indian tribe’s subsidiary engages primarily in commercial activities not located on the tribe’s reservation as evidence that the subsidiary is not an “arm” of the tribe. We disagree. Kiowa and Bay Mills do not apply in the present appeal, because they concerned lawsuits against Indian tribes themselves, not against corporate affiliates of tribes. They do not illuminate questions concerning whether such an entity is an “arm” of the tribe. The United States Supreme Court has never held that corporations affiliated with an Indian tribe have sovereign immunity.

As the Appellate Division notes, the primary purpose of creating the golf course in Lewiston was to act as a regional economic engine and thereby serve the profit-making interests of the Seneca Nation’s casino operations in the area. While this may result in more funds for government projects on the Seneca Nation’s reservations and elsewhere that benefit members of the tribe, we agree with the Appellate Division that the purposes of Lewiston Golf were sufficiently different from tribal goals that they militate against Lewiston Golf’s claim of sovereign immunity. However, the purposes factor of Ransom is not determinative, and we proceed to discuss the other criteria. While some of the remaining Ransom factors favor the conclusion that Lewiston Golf is protected by sovereign immunity, the most important ones strongly support the opposite conclusion.

IV

It is true that Lewiston Golf was organized under tribal law, not federal law, and that Lewiston Golf’s governing body is comprised of tribal officials. The Seneca Nation controls Lewiston Golfs Board of Directors, which is made up exclusively of enrolled members of the Nation appointed by the Tribal Council. Moreover, it is clear from the record that tribal officials exercise control over the administration or accounting activities of Lewiston Golf, and that the tribe’s governing body has power to dismiss members of Lewiston Golfs governing body. Indeed, the Tribal Council has exclusive authority to remove members of Lewiston Golf’s Board. These considerations indicate that Lewiston Golf is dependent on the Seneca Nation in a manner that might suggest it partakes in the Nation’s sovereign immunity.

However, all the remaining Ransom factors, and particularly those that consider the financial relationship between the subsidiary or agency and the Indian nation, support the conclusion that Lewiston Golf lacks sovereign immunity.

First, the Seneca Nation does not have legal title or ownership of the golf course being developed by Lewiston Golf. Contrary to the Seneca Nation’s contention, the question posed by this factor is not whether Lewiston Golf is owned by the tribe. Rather, the issue is whether the property used by Lewiston Golf is owned by the tribe, and the record leaves no room for doubt that the owner of the golf course is Lewiston Golf, not the Seneca Nation.

Next, and most significantly, the record firmly indicates the intent to ensure that a suit against Lewiston Golf will not impact the Seneca Nation’s fiscal resources. The founding charter provided that no indebtedness incurred by it would “in any way involve assets of the Nation,” which would “not be liable for the debts or obligations” incurred by Lewiston Golf. The charter stated that Lewiston Golf would have no power to allow “any right, lien, encumbrance or interest in or on any of the assets of the Nation.” All the evidence in the record points to the conclusion that Lewiston Golf lacks the power to bind or obligate the funds of the Seneca Nation.

In response, Lewiston Golf does not deny that the statements in the charter have their ordinary meaning and that the Seneca Nation intended to create a corporation for whose debts it would not be liable. Lewiston Golf does not contend that the Seneca Nation’s independent coffers are vulnerable. Rather, it argues that a lawsuit against Lewiston Golf would have an economic impact on the Seneca Nation because revenues that would otherwise be distributed to the Nation will not be available. Lewiston Golf expressly concedes that it generates its own revenue, rather than being dependent on the resources of the Seneca Nation.

Whether Lewiston Golf’s revenues will become part of the Seneca Nation’s resources, as Lewiston Golf emphasizes, is beside the point. The test, with respect to the financial relationship factors of Ransom, is not the indirect effects of any liability on the tribe’s income, but rather whether the immediate obligations are assumed by the tribe. Here, the financial obligations were assumed by Lewiston Golf and any liability insurer, not by the Seneca Nation.

These financial relationship considerations are the most important of the Ransom factors, as we noted when we first set out the criteria (see Ransom, 86 NY2d at 559). In attributing such weight to them, we have taken into consideration federal precedent on the Eleventh Amendment immunity of States. While the sovereign immunity of an Indian tribe is not based on the Federal Constitution, it has in common with Eleventh Amendment immunity “a background of traditional ideas about the power and privileges of the sovereign” (Runyon v Association of Vil. Council Presidents, 84 P3d 437, 440 n 12 [Alaska Sup Ct 2004]; see Thebo v Choctaw Tribe of Indians, 66 F 372, 376 [8th Cir 1895]). In considering whether an entity is an “arm” of an Indian tribe, the most significant factor is the effect on tribal treasuries, just as “the vulnerability of the State’s purse” is considered “the most salient factor” in determinations of a State’s Eleventh Amendment immunity (Hess v Port Authority Trans-Hudson Corporation, 513 US 30, 48 [1994]).

If a judgment against a corporation created by an Indian tribe will not reach the tribe’s assets, because the corporation lacks “the power to bind or obligate the funds of the tribe” (Ransom, 86 NY2d at 559 [internal quotation marks and brackets omitted]), then the corporation is not an “arm” of the tribe. However, if a tribe is legally responsible for a corporation’s obligations, the tribe is “the real party in interest” (id. at 560). As the Supreme Court of Alaska has observed, in a thoughtful opinion, “a tribe might, for commercial purposes, wish to form a corporation exposed to suit in order to cultivate trust with business partners. . . . The tribes’ use of the corporate form protects their assets from being called upon to answer the corporation’s debt. But this protection means that they are not the real party in interest” (Runyon, 84 P3d at 441; accord e.g. American Prop. Mgt. Corp. v Superior Court, 206 Cal App 4th 491, 506, 141 Cal Rptr 3d 802, 813-814 [4th Dist, Div 1 2012]; Uniband, Inc. v Commissioner of Internal Revenue, 140 TC 230, 255 [2013]; Seaport Loan Prods., LLC v Lower Brule Community Dev. Enter. LLC, 41 Misc 3d 1218[A], 2013 NY Slip Op 51765[U] [Sup Ct, NY County 2013]). In short, protection of a tribal treasury against liability in a corporate charter is strong evidence against the retention of sovereign immunity by the corporation.

The dissent’s principal objection to our ruling is that lower courts have found that Seneca Gaming and Seneca Niagara have sovereign immunity (see dissenting op at 556-560, citing Sue/Perior Concrete & Paving, Inc., 99 AD3d 1203; Seneca Niagara Falls Gaming Corp., 2005 WL 3510348, 2005 Conn Super LEXIS 3295; Warren v United States, 859 F Supp 2d 522 [WD NY 2012], affd 517 Fed Appx 54 [2d Cir 2013]; Myers v Seneca Niagara Casino, 488 F Supp 2d 166 [ND NY 2006]). Neither this Court nor the United States Supreme Court has so held, and our decision today may imply the opposite. As noted above, the question whether a corporate affiliate of an Indian tribe is protected by the tribe’s sovereign immunity has not been settled by the United States Supreme Court. Therefore, even assuming that it is a pure question of federal law, we remain at liberty to answer it in a manner that may conflict with the determinations of courts in our federal circuit. Contrary to the dissent, New York State courts are not bound by the decisions of federal courts, other than the United States Supreme Court, on questions of federal constitutional law (see Arthur Karger, Powers of the New York Court of Appeals § 1:8 at 18 [3d ed rev 2005]). It is well-established that “the interpretation of a Federal constitutional question by the lower Federal courts may serve as useful and persuasive authority for our Court while not binding us. This Court in its long-standing tradition and independent responsibility has exercised its correlative adjudicative power on questions of Federal law” (People v Kin Kan, 78 NY2d 54, 60 [1991] [citation omitted and emphasis added], citing New York R.T. Corp. v City of New York, 275 NY 258, 265 [1937] [noting that a decision of the Second Circuit, “while entitled to great weight, is not binding on this court”], affd 303 US 573 [1938]; see also e.g. People v Konstantinides, 14 NY3d 1, 13 [2009]; Matter of Mason [State Commn. on Jud. Conduct], 100 NY2d 56, 58 [2003]). The same principle applies here.

Alternatively, it could be argued that Seneca Gaming and Seneca Niagara are distinguishable from Lewiston Golf in that their purposes are more closely aligned with those of the Seneca Nation. In any case, that question is not before us, and the dissent simply begs the question, assuming — what has not been held by this Court or the Supreme Court — that Lewiston Golfs corporate parents have sovereign immunity.

In conclusion, we agree with the Appellate Division that the most significant Ransom factors count against sovereign immunity on the part of Lewiston Golf. Its ruling was proper. It is unnecessary for us to address the parties’ remaining contentions.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Rivera, J.

(dissenting). The question on this appeal is whether a corporate subsidiary of a corporation owned and controlled by an Indian Tribe, and which exists solely for the economic benefit of the Tribe and its members, is immune from private suit based on the Tribe’s sovereign immunity. I can find no rational legal basis to distinguish between the corporate parent, which is a recognized arm of the Tribe, and its subsidiary. Therefore, I would find the subsidiary is immune from suit.

L

The Seneca Nation of Indians (the Nation) is a sovereign Tribe, predating the creation of the United States, with its own government, laws and cultural identity (see Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 79 Fed Reg 4748-02 [2014]; Seneca Nation of Indians v State of New York, 26 F Supp 2d 555, 560 [WD NY 1998], affd 178 F3d 95 [2d Cir 1999]). As a tribal sovereign it provides its members with various health and education-related services and programs, which are dependent on the Nation’s financial stability and well-being. The Nation has identified the gaming industry as “vitally important to the economy of the Nation and the general welfare of its members” (Seneca Gaming Corporate Charter Law Enactment, Council of the Seneca Nation of Indians, Aug. 1, 2002). As part of its economic development activities it has created and chartered, under the Nation’s corporate charter, three interlocking corporate entities, intended to further the Nation’s gaming operations, all for the benefit of its members.

The Nation created the Seneca Gaming Corporation (Seneca Gaming) to “finance, develop, construct, operate, and maintain Nation Gaming Facilities.” The Nation then created the Seneca Niagara Falls Gaming Corporation (Seneca Niagara Falls Gaming) as a subsidiary of Seneca Gaming, for purposes of “developing, financing, operating and conducting the business of the Nation Gaming Facility” on Nation territory located in Niagara County, New York. Seneca Niagara Falls Gaming is subject to the “control, operation and management” of Seneca Gaming.

The Nation decided to capitalize on the subsequent success of its gaming operations, and Seneca Niagara Falls Gaming commenced development of a golf course in the Town of Lewiston, New York in Niagara County. The Nation thereafter created the Lewiston Golf Course Corporation (Lewiston Golf) “as a separate legal entity, governmental instrumentality of the Nation, and wholly-owned subsidiary of [Seneca Niagara Falls Gaming], for the purpose of developing and operating the Lewiston Golf Course.”

All three of the Nation’s resolutions creating Seneca Gaming, Seneca Niagara Falls Gaming, and Lewiston Golf, and their respective corporate charters provide:

“it is declared the policy of the Nation to promote the welfare and prosperity of its members and to actively promote, attract, encourage and develop economically sound commerce and industry through governmental action for the purpose of preventing unemployment and economic stagnation; and . . .
“the economic success of the Nation’s gaming operations is vitally important to the economy of the Nation and the general welfare of its members.”

Plaintiff Sue/Perior Concrete & Paving, Inc., a contracting company who had previously done business with the Nation, entered a contract with Lewiston Golf to construct the golf course. After certain payment disputes, plaintiff filed a mechanic’s lien foreclosure action against Lewiston Golf in Niagara County. Plaintiff also filed an action in Erie County against several of the same defendants, with the exception of Lewiston Golf, but Erie County Supreme Court dismissed that action based on the sovereign immunity of Seneca Gaming and Seneca Niagara Falls Gaming.

Lewiston Golf moved to dismiss the action, asserting sovereign immunity against suit as an arm of the Nation. Supreme Court and the Appellate Division both rejected this contention, and held that Lewiston Golf is not an arm of the Nation. The majority now agrees, and based on Matter of Ransom v St. Regis Mohawk Educ. & Community Fund (86 NY2d 553 [1995]) concludes that because Lewiston Golf is without power to bind or obligate the Nation’s funds it lacks a sufficient financial relationship with the Nation to entitle it to sovereign immunity.

I disagree with the majority that certain financial factors identified by this Court in Ransom, and as applied here, should be treated as outcome determinative of the question of the expanse of the Nation’s sovereign immunity over its corporate subsidiary Lewiston Golf. Instead, our focus should be the purpose and corporate structure of Lewiston Golf. As a corporate entity created and chartered by the Nation, established to enhance the Nation’s gaming operations for the purpose of benefitting the Nation’s members, I would hold Lewiston Golf is clothed with the Nation’s sovereign immunity.

IL

Tribes are “ ‘separate sovereigns pre-existing the [United States] Constitution’ ” (Michigan v Bay Mills Indian Community, 572 US —, —, 134 S Ct 2024, 2030 [2014], quoting Santa Clara Pueblo v Martinez, 436 US 49, 56 [1978]), and possess “ ‘common-law immunity from suit traditionally enjoyed by sovereign powers’ ” (id., quoting Santa Clara Pueblo, 436 US at 58). Indeed, “sovereign immunity [is] an inherent part of the concept of sovereignty and what it means to be a sovereign” (Breakthrough Mgt. Group, Inc. v Chukchansi Gold Casino & Resort, 629 F3d 1173, 1182 [10th Cir 2010]), and “is ‘a necessary corollary to Indian . . . self-governance’ ” (Bay Mills Indian Community, 572 US at —, 134 S Ct at 2030, quoting Three Affiliated Tribes of Fort Berthold Reservation v Wold Engineering, P. C., 476 US 877, 890 [1986], and citing Hamilton, Federalist No. 81 at 511 [Benjamin Fletcher Wright ed 1961] [It is “inherent in the nature of sovereignty not to be amenable” to suit without consent]). Sovereign immunity serves interests essential to tribal identity, and is fundamental to the survival and growth of tribes and their members. Moreover, immunity is “ ‘necessary to promote the federal policies of tribal self[-] determination, economic development, and cultural autonomy’ ” (Breakthrough Mgt. Group, Inc., 629 F3d at 1182 [modification in original], quoting American Indian Agric. Credit Consortium, Inc. v Standing Rock Sioux Tribe, 780 F2d 1374, 1378 [8th Cir 1985]).

The United States Supreme Court has broadly applied tribal sovereign immunity to extend to “suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off” Indian lands (Kiowa Tribe of Okla. v Manufacturing Technologies, Inc., 523 US 751, 760 [1998]; see also Bay Mills Indian Community, 572 US at —, 134 S Ct at 2030-2031). There are no exemptions for tribal commercial activity (see Cayuga Indian Nation of N.Y. v Seneca County, N.Y., 761 F3d 218, 221 [2d Cir 2014]), and, thus, sovereign immunity extends to tribal business ventures (Oklahoma Tax Comm’n v Citizen Band of Potawatomi Tribe of Okla., 498 US 505, 510 [1991]). Immunity may be limited only by Congress or express waiver of a tribe (Kiowa, 523 US at 754).

Unsurprisingly, “tribes across the country, as well as entities and individuals doing business with them, have for many years relied on [Supreme Court precedent], negotiating their contracts and structuring their transactions against a backdrop of tribal immunity” (Bay Mills Indian Community, 572 US at —, 134 S Ct at 2036, referencing Kiowa, 523 US 751). Over the years tribal activities have grown, “tribal gaming revenues [have] increased more than thirty fold,” and “other tribal enterprises, ranging from cigarette sales to ski resorts” have flourished (Bay Mills Indian Community, 572 US at —, 134 S Ct at 2037; see 572 US at —, 134 S Ct at 2050-2051 [Thomas, J., dissenting]). “[T]ribal business operations are critical to the goals of tribal self-sufficiency because such enterprises in some cases ‘may be the only means by which a tribe can raise revenues.’ This is due in large part to the insuperable (and often state-imposed) barriers Tribes face in raising revenue through more traditional means” (572 US at —, 134 S Ct at 2043 [Sotomayor, J., concurring] [citation omitted]).

IIL

As federal courts have held, the Seneca Nation of Indians has immunity from suit based on its status as a sovereign Indian Nation (Seneca Nation of Indians, 178 F3d 95) and that Seneca Niagara Falls Gaming and Seneca Gaming are arms of the Nation (Warren v United States, 859 F Supp 2d 522, 540-541 [WD NY 2012], affd 517 Fed Appx 54 [2d Cir 2013]; Myers v Seneca Niagara Casino, 488 F Supp 2d 166 [ND NY 2006]) fully clothed with the Nation’s sovereign immunity. The question of whether Lewiston Golf, another subentity of the Nation, may assert sovereign immunity then seems a rather straightforward one, and one which should be decided in Lewiston Golfs favor.

Tribal sovereignty, including immunity from suit, “is subject to the superior and plenary control of Congress [and] without congressional authorization, the Indian Nations are exempt from suit” (Santa Clara Pueblo, 436 US at 58 [internal quotation marks and citation omitted]). As such, tribal immunity is “a matter of federal law and is not subject to diminution by the States” (Kiowa, 523 US at 756). The Nation is a sovereign with its own government and rights to self-determination, and as such empowered to determine how best to structure its business ventures. Therefore, we are without authority, absent congressional limitation, to reject the Nation’s adoption of a corporate structure that furthers its economic development goals.

The majority relies on this Court’s decision in Ransom for the legal framework by which to decide Lewiston Golfs sovereign immunity. However, Ransom was decided before the United States Supreme Court announced its decisions in Kiowa and Bay Mills Indian Community recognizing sovereign immunity applied broadly to Indian business ventures, even those outside Indian lands. Therefore, the factors in Ransom cannot supercede federal proscriptions, and we must be cautious not to rely on these factors in a way that conflicts with federal law.

The record makes abundantly clear that the Nation created Lewiston Golf as a commercial business venture to increase the Nation’s gaming revenues for the benefit of the Tribe and its members. The Nation determined that the best way to pursue this goal is through a corporate structure whereby Lewiston Golf is controlled by the Nation’s corporate entity. As a sovereign, the Nation is certainly able to decide that this corporate arrangement will enhance its economic independence and sustain its tribal membership and self-sustaining tribal government. The Nation, having made that choice, is no less entitled to expect that the protections afforded by its sovereign immunity will apply equally to the activities of Lewiston Golf as it does to the activities of Seneca Gaming and Seneca Niagara Falls Gaming.

The logic of treating uniformly the corporate entities for sovereign immunity purposes is illustrated by comparing Lewiston Golf and Seneca Niagara Falls Gaming. As their respective corporate charters reveal, Seneca Niagara Falls Gaming and Lewiston Golf are strikingly similar, both are owned by an arm of the Nation (Seneca Gaming in the case of Seneca Niagara Falls Gaming, and Seneca Niagara Falls Gaming in the case of Lewiston Golf), and both are controlled and run by the Nation. Both seek to increase the Nation’s revenue, with the obvious difference that Seneca Niagara Falls Gaming was created for the “purpose of developing, constructing, owning, leasing, operating, managing, maintaining, promoting and financing a Nation Gaming Facility on Nation territory within the exterior boundaries of Niagara County pursuant to the terms of the [gaming] Compact,” and Lewiston Golfs purpose is to “develop[ ], construct [ ], own[ ], leas[e], operat[e], manag[e], maintain [ ], promot[e] and financ[e] the Lewiston Golf Course on land” which at the time of Lewiston Golf’s creation was owned by Seneca Niagara Falls Gaming. Thus, one exists to maintain a casino for the Nation’s benefit, the other exists to maintain a golf course to enhance casino revenues for the Nation’s benefit. Both improve the Nation’s economic position. Moreover, not only are they similar in purpose and service to the Nation and its members, but Lewiston Golf is intended as an amenity to the casino to “further[ ] . . . the economic success of the Nation’s gaming operations.” The point of both business enterprises is to bring revenues to the Nation. If the golf course was owned by Seneca Niagara Falls Gaming, a recognized arm of the Nation, there would be no question that sovereign immunity would foreclose plaintiff’s suit against Lewiston Golf. Consequently, there is no logical basis to treat Lewiston Golf differently simply because it is a subsidiary of Seneca Niagara Falls Gaming.

Therefore, I can find no legally defensible ground for rejecting sovereign immunity to Lewiston Golf, a corporate entity that is established under the Nation’s laws and constitution, chartered by the Nation to develop, construct and operate a golf course in furtherance of the Nation’s existing gaming operations, and, consistent with the Seneca Niagara Falls Gaming charter, controlled by Nation officials who make all significant business decisions. Like its parent Seneca Niagara Falls Gaming, Lewiston Golf is an engine for tribal economic development and growth.

The majority claims that there is no legal support for presuming Seneca Gaming and Seneca Niagara Falls Gaming’s sovereign immunity. However, in Warren the district court, as affirmed by the Second Circuit, held that Seneca Gaming “is a government instrumentality entitled to immunity” (859 F Supp 2d at 541), finding specifically that Seneca Gaming

“is incorporated under Seneca tribal law; it was created to generate income to provide for the general welfare of [the Nation’s] members; a majority of the board of directors are enrolled Senecas; [Seneca Gaming’s] principal place of business is on the Cattaraugus reservation; all important corporate acts require approval of the tribal Council; [and] the tribal Council may remove [Seneca Gaming] board members for cause” (id.).

In Myers, the district court stated that Seneca Niagara Falls Gaming “enjoys all of the privileges and immunities of the Nation” (Myers v Seneca Niagara Casino, 488 F Supp 2d at 167-168 n 2). Thus, it is undisputed that under federal law these entities are entitled to the Nation’s sovereign immunity.

Nevertheless, the majority casts these decisions to the wind, and asserts that in the instant appeal it may ignore federal precedent and place in question sovereign immunity as it applies to the Seneca Gaming and Seneca Niagara Falls Gaming, and a fortiori Lewiston Golf (majority op at 551). According to the majority, it is free to apply outdated decisions, propound unfounded conclusions, and clear its own path on the question of sovereign immunity until such time as the United States Supreme Court speaks on the issue. Well the Supreme Court has spoken, and we are bound to comply with its pronouncement that tribal sovereign immunity is a federal matter “not subject to diminution by the States” (Kiowa, 523 US at 756). Thus, our Court is without authority to render tribal commercial activities meaningless by subjecting tribal entities to suit in contravention of federally recognized immunity. Consequently, with respect to Seneca Gaming and Seneca Niagara Falls Gaming the law is currently settled in New York that they are arms of the Nation and clothed with sovereign immunity.

Implicit in the majority’s argument for rejecting Lewiston Golf’s claim is the notion that the corporate form, and the protections therein, categorically bars the extension of sovereign immunity. This is simply an irrelevant consideration because the sovereign immunity of a tribe extends to its subordinate economic entities (see e.g. Native Am. Distrib. v Seneca-Cayuga Tobacco Co., 546 F3d 1288 [10th Cir 2008] [tobacco manufacturer]), including corporate entities (see e.g. Memphis Biofuels, LLC v Chickasaw Nation Indus., Inc., 585 F3d 917, 921 [6th Cir 2009] [tribal conglomerate was an arm of the Tribe; incorporating under 25 USC § 477, i.e., a section 17 corporation, did not automatically waive tribal sovereign immunity]; Koscielak v Stockbridge-Munsee Community, 340 Wis 2d 409, 418, 811 NW2d 451, 456 [2012] [golf course and supper club], review granted 342 Wis 2d 155, 816 NW2d 321 [2012]).

The majority rests its decision on Lewiston Golfs apparent inability to bind or obligate the funds of the Seneca Nation. As noted above, the financial and administrative duties and obligations of Lewiston Golf the Seneca Nation are nearly identical to those of Seneca Niagara Falls Gaming. According to their charters, neither can bind nor obligate the funds of the Seneca Nation. Yet, Seneca Niagara Falls Gaming is an arm of the Tribe (see Sue/Perior Concrete & Paving, Inc. v Seneca Gaming Corp., 99 AD3d 1203 [4th Dept 2012]; Seneca Niagara Falls Gaming Corp. v Klewin Bldg. Co., Inc., 2005 WL 3510348, *5, 2005 Conn Super LEXIS 3295, *14 [Nov. 30, 2005, No. KNL-CV-05-4004218-S] [Seneca Niagara Falls Gaming, which is a wholly-owned subsidiary of Seneca Gaming is a governmental instrumentality of the Seneca Nation]; Warren, 859 F Supp 2d at 540-541 [Seneca Gaming entitled to immunity; finding Seneca Gaming charter provisions incorporated in all relevant respects into the Seneca Niagara Falls Gaming charter], citing Klewin Bldg. Co., Inc., 2005 WL 3510348, *5, 2005 Conn Super LEXIS 3295, *12-14; Myers, 488 F Supp 2d at 167-168 n 2).

In deciding the expanse of sovereign immunity, our focus should be on the purpose and goals of the corporate entity. We should look to whether the corporate entity furthers tribal self-determination and self-governance, and as such, benefits the tribe’s members. Therefore, I would not rely primarily on Ransom’s financial interconnectedness factors. Indeed, federal and state courts have criticized the multi-factor approach to subordinate economic analysis as contravening Kiowa (see Kiowa, 523 US at 754-755; Breakthrough Mgt. Group, Inc., 629 F3d at 1185-1189 [expressly overruling district court’s holding that financial interconnectedness is a threshold factor]; Cash Advance & Preferred Cash Loans v State, 242 P3d 1099, 1110 n 12 [Colo 2010] [distinguishing Ransom as pre-KiowaJ). Moreover, Runyon, also a pre-Kiowa case, was an expressly narrow ruling, which relied on Ransom and Alaska corporate law (Runyon v Association of Vil. Council Presidents, 84 P3d 437, 441 [Alaska Sup Ct 2004], citing Alaska Stat § 10.20.051 [b]).

IV

Plaintiff argues that even if Lewiston Golf is entitled to sovereign immunity, that immunity has been waived and thus it is subject to suit. I can find no basis in law or the record to support waiver. As the United States Supreme Court has made clear, “an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity” (Kiowa, 523 US at 754). Just this past term, in Michigan v Bay Mills Indian Community, the Supreme Court reaffirmed, not only that it is for Congress “to abrogate tribal immunity for off-reservation commercial conduct,” but that Congress has chosen not to do so (572 US at —, 134 S Ct at 2031).

As the court in Ransom recognized, “preserving tribal resources and tribal autonomy are matters of vital importance” and waiver of “sovereign immunity cannot be implied but must be unequivocally expressed” (Ransom, 86 NY2d at 560-561 [internal quotation marks omitted], quoting Santa Clara Pueblo, 436 US at 58). “[W]aivers . . . are . . . strictly construed in favor of the Tribe” (Ransom, 86 NY2d at 561 [internal quotation marks omitted], quoting Rupp v Omaha Indian Tribe, 45 F3d 1241, 1245 [8th Cir 1995]).

Plaintiff’s contract with Lewiston Golf lacks any express waiver of sovereign immunity. Plaintiff seeks to avoid sovereign immunity arguing that Lewiston Golf is subject to suit for the mechanic’s lien foreclosure. However, courts have failed to recognize the distinction between in rem and in personum jurisdiction asserted by the respondent (see Cayuga Indian Nation of N.Y., 761 F3d 218, 220; Oneida Indian Nation of N.Y. v Madison County, Oneida County, N.Y., 605 F3d 149, 159 [2d Cir 2010], vacated on other grounds and remanded 562 US 42 [2011]). Regardless, the suit ultimately seeks to enforce Lewiston Golfs alleged debt to the plaintiff, and does not seek title to the land, so even plaintiffs in rem theory must fail.

I would reverse the Appellate Division because Lewiston Golf is entitled to sovereign immunity, therefore I dissent.

Judges Graffeo, Smith and Abdus-Salaam concur; Judge Rivera dissents in an opinion in which Chief Judge Lippman and Judge Read concur.

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

      . The application was approved, and eventually Lewiston Golf and the Niagara County Industrial Development Agency entered into a payment-in-lieu-of-tax agreement, providing for Lewiston Golf to make payments in lieu of taxes, as well as a lease agreement and leaseback agreement. In this manner, Lewiston Golf was granted certain exemptions from real property and sales taxes.

      . Sue/Perior also commenced a separate action against Seneca Gaming, Seneca Niagara, and certain individual defendants — but not Lewiston Golf-alleging tortious interference with contract, tortious interference with prospective business advantage, concerted action, and prima facie tort (punitive damages). The Appellate Division dismissed Sue/Perior’s complaint (Sue/Perior Concrete & Paving, Inc. v Seneca Gaming Corp., 99 AD3d 1203 [4th Dept 2012]). We take no position on whether that appeal was properly decided.

      . Some commentators justifiably refer to our “nine factors” (see e.g. Gregory J. Wong, Note & Comment, Intent Matters: Assessing Sovereign Immunity for Tribal Entities, 82 Wash L Rev 205, 220 [2007]), but the last two, or last three, factors have often been treated as one by courts citing Ransom, generating an eight-factor or seven-factor test (see e.g. Seneca Niagara Falls Gaming Corp. v Klewin Bldg. Co., Inc., 2005 WL 3510348, 2005 Conn Super LEXIS 3295 [Jud Dist of New London 2005, No. KNL-CV-05-4004218-S]). We too treat the last three factors as closely interrelated.

      . While the Alaska Supreme Court’s opinion concerned a nonprofit corporation shielding members from liability under state law, not tribal law, its analysis is equally pertinent here in that the Seneca Nation created a corporation with a charter expressly protecting the Nation from liability.

      . Nor has it been addressed by the United States Court of Appeals for the Second Circuit, which treated the question cursorily in a summary order that lacks precedential force (517 Fed Appx 54 [2013]; see Local Rules of 2d Cir rule 32.1.1 [a] [providing that decisions “by summary order do not have precedential effect”]).

      . The Nation Gaming Facility operates in accordance with the Indian Gaming Regulatory Act and the Compact between the Nation and New York State.

      . There is certainly nothing unique in establishing a golf course as an economic development venture. As Lewiston Golf points out, New York has several public golf courses that are public amenities that “create jobs and support economic development.”

      . Realizing that it cannot avoid federal law, the majority opines that perhaps Lewiston Golf is different from the other Seneca corporate entities because the purposes of Seneca Gaming and Seneca Niagara Falls Gaming are more aligned with those of the Nation (majority op at 552). The record belies any such distinction. Indeed, the corporate charters are quite clear that the purpose of these three entities is to benefit the Nation and its members through “governmental action for the purpose of preventing unemployment and economic stagnation,” achieved through the economic success of the Nation’s gaming operations.


source: Caselaw Access Project

author:
Rivera, J.
      Pigott, J.

license: Public Domain

text:
    [25 NE3d 958, 2 NYS3d 45]
    Allison Gammons, Respondent, v City of New York et al., Appellants.
    Argued November 17, 2014;
    decided December 18, 2014

      POINTS OF COUNSEL

      Zachary W. Carter, Corporation Counsel, New York City (Michael Shender, Kristin M. Helmers, Margaret G. King and Richard Dearing of counsel), for appellants.
    Labor Law § 27-a (3) is not a valid predicate for plaintiff’s General Municipal Law § 205-e cause of action. While section 27-a establishes a comprehensive administrative program for workplace safety inspections, it does not provide a private right of action for violation of its terms and therefore cannot form the basis for the City of New York’s liability. (Williams v City of New York, 2 NY3d 352; Donovan v Occupational Safety & Health Review Commn., 713 F2d 918; Jeter v St. Regis Paper Co., 507 F2d 973; Russell v Bartley, 494 F2d 334; Pedraza v Shell Oil Co., 942 F2d 48; Minichello v United States Indus., Inc., 756 F2d 26; Ellis v Chase Communications, Inc., 63 F3d 473; Crane v Conoco, Inc., 41 F3d 547; Ries v National R.R. Passenger Corp., 960 F2d 1156; Barrientos v UT-Battelle, LLC, 284 F Supp 2d 908.)

      Oshman & Mirisola, LLP, New York City {David L. Kremen of counsel), for respondent.
    Labor Law § 27-a is a proper statutory predicate for a General Municipal Law § 205-e cause of action. (Santangelo v State of New York, 71 NY2d 393; Schiavone v City of New York, 92 NY2d 308; St. Jacques v City of New York, 215 AD2d 75, 88 NY2d 920; Gonzalez v Iocovello, 93 NY2d 539; Williams v City of New York, 2 NY3d 352; Giuffrida v Citibank Corp., 100 NY2d 72; Desmond v City of New York, 88 NY2d 455; Galapo v City of New York, 95 NY2d 568; Crosland v New York City Tr. Auth., 68 NY2d 165; Flynn v City of New York, 258 AD2d 129.)

      Robert F. Danzi, New York State Trial Lawyers Association, New York City, and Sullivan Papain Block McGrath & Cannavo P.C., New York City {Brian J. Shoot of counsel), for New York State Trial Lawyers Association, amicus curiae.
    I. The legislature amended General Municipal Law §§ 205-a and 205-e for the express purpose of providing the State’s firefighters and police officers with “an umbrella of protection.” (Galapo v City of New York, 95 NY2d 568; Giuffrida v Citibank Corp., 100 NY2d 72; Santangelo v State of New York, 71 NY2d 393; Kenavan v City of New York, 70 NY2d 558; Hayes v City of New York, 169 Misc 2d 170, 231 AD2d 402; St. Jacques v City of New York, 215 AD2d 75, 88 NY2d 920; Desmond v City of New York, 88 NY2d 455; Schiavone v City of New York, 92 NY2d 308; Gonzalez v Iocovello, 93 NY2d 539; Williams v City of New York, 2 NY3d 352.) II. The legislature most assuredly did not intend that General Municipal Law §§ 205-a and 205-e apply only when the plaintiff already had a statutory cause of action and therefore did not need the protection of General Municipal Law §§ 205-a and 205-e. (Kramer v Phoenix Life Ins. Co., 15 NY3d 539; Matter of Crucible Materials Corp. v New York Power Auth., 13 NY3d 223; Matter of Raynor v Landmark Chrysler, 18 NY3d 48; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Gonzalez v Iocovello, 93 NY2d 539; Williams v City of New York, 2 NY3d 352; People v Gallina, 66 NY2d 52.) III. Given that virtually all statutory or regulatory standards fall within the sphere of some governmental body, agency or officer, such cannot be a disqualifying factor for purposes of General Municipal Law §§ 205-a and 205-e. (Williams v City of New York, 2 NY3d 352; Schiavone v City of New York, 92 NY2d 308; Nostrom v A.W. Chesterton Co., 15 NY3d 502; McDougald v Garber, 73 NY2d 246; Ries v National R.R. Passenger Corp., 960 F2d 1156; Jones v Spentonbush-Red Star Co., 155 F3d 587; Robertson v Burlington N. R.R. Co., 32 F3d 408; Bean v CSX Transp., 289 F Supp 2d 277; Elliott v S.D. Warren Co., 134 F3d 1; Ganci v Port Auth. Trans-Hudson Corp., 258 AD2d 386.)
   OPINION OF THE COURT

Rivera, J.

In this appeal concerning a police officer’s personal injury action against municipal defendants the City of New York and the New York City Police Department, we conclude that Labor Law § 27-a (3) (a) (1) sets forth an objective clear legal duty that may serve as a predicate for a claim under General Municipal Law § 205-e. Therefore, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

L

Plaintiff Allison Gammons was a police officer with the New York City Police Department working on “barrier truck detail” in Brooklyn, New York when she was injured during the course of loading wooden police barriers onto a police flatbed truck. According to plaintiff, she was standing at the rear of the truck holding a barrier when another officer who was helping to load the truck pushed the barrier into plaintiffs chest, causing her to fall backwards and off the truck onto the street.

Plaintiff sued defendants City of New York and the New York City Police Department seeking damages, asserting causes of action for common-law negligence and under General Municipal Law § 205-e for failure to comply with Labor Law § 27-a, known as the Public Employee Safety and Health Act (PESHA), based, in part, on the alleged unsafe and dangerous condition of the truck. At her deposition plaintiff stated the truck was too short to accommodate the full length of the barriers being loaded, the back was left open and unprotected, the side railings were only three feet high, and only one officer could comfortably fit on the truck during the loading process. She claimed that on the date of her injury, defendant Police Department, nevertheless, had available newer trucks that were sufficiently long to accommodate the full length of the barriers without any portion hanging off the back, were equipped with a tailgate, and could hold two officers.

Defendants moved for summary judgment pursuant to CPLR 3212, claiming that General Obligations Law § 11-106 (l) barred plaintiff’s common-law negligence cause of action, and the general duty clause of Labor Law § 27-a (3) (a) (1) could not serve as a statutory predicate to plaintiffs General Municipal Law § 205-e cause of action. As an alternative ground, defendants asserted that plaintiff failed to establish the existence of a “recognized hazard” within the meaning of section 27-a (3) (a) (1) because plaintiff claimed her injury was due to the improper use of the truck, rather than its inherent defective condition.

Plaintiff responded that the motion was unsupported by the law and facts. Additionally, in a supplemental bill of particulars, she alleged that defendants violated 29 CFR 1910.23 (c) (l) by failing to equip the truck with a back railing, and asserted section 27-a (3) (a) (2) as a predicate for this violation. Plaintiff further requested the court search the record in accordance with CPLR 3212 (b) and grant her summary judgment on the question of liability under General Municipal Law § 205-e.

As relevant to this appeal, Supreme Court denied the motion in part, concluding Labor Law § 27-a (3) (a) (1) may serve as a predicate for a violation of General Municipal Law § 205-e (30 Misc 3d 1230[A], 2011 NY Slip Op 50286[U] [Sup Ct, Kings County 2011]). The Appellate Division affirmed (109 AD3d 189 [2013]) and granted defendants leave to appeal on a certified question whether the court properly affirmed the denial of defendants’ summary judgment motion to dismiss plaintiffs General Municipal Law § 205-e claim (2013 NY Slip Op 90950[U] [2d Dept 2013]).

On appeal to this Court, the parties reiterate their arguments below. Defendants contend that Labor Law § 27-a does not provide an injured worker with a private right of action, and, instead, establishes a workplace inspection scheme under which the Commissioner of Labor alone may determine a violation of the statute. Therefore, section 27-a cannot serve as a predicate to plaintiff’s General Municipal Law cause of action. Defendants further claim that, regardless, plaintiff has failed to assert a cause of action based on a physical and environmental workplace hazard, in accordance with section 27-a (3) (a) (1). In contrast, plaintiff argues that Labor Law § 27-a (3) (a) (1) contains a clear legal duty and, thus, was a proper statutory predicate for her General Municipal Law § 205-e cause of action, and that her fall from the truck was a “recognized hazard.” We agree with plaintiff that section 27-a is sufficient to serve as a statutory predicate for her claim.

IL

General Municipal Law § 205-e contains a right of action allowing police officers to sue for injuries sustained in the line of duty “as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments” (General Municipal Law § 205-e [1]). The legislature enacted General Municipal Law § 205-e to overrule this Court’s prior decision in Santangelo v State of New York (71 NY2d 393, 396-398 [1988]), which had extended the “firefighter’s rule” to police officers, thus barring common-law negligence actions for injuries sustained in the line of duty. Thereafter, the legislature would continue to abrogate judicial decisions interpreting General Municipal Law § 205-e restrictively (see Gonzalez v Iocovello, 93 NY2d 539, 548 [1999]). After a decade of legislative rebuffs, we acknowledged that “[e]ach enactment has been promoted as being for the express purpose of clarifying and emphasizing the legislative intent that General Municipal Law § 205-e be applied ‘expansively’ ” (id., citing L 1990, ch 762; L 1992, ch 474; L 1994, ch 664; L 1996, ch 703).

In prior cases this Court described how the 1992 and 1996 amendments were intended to enlarge a police officer’s right of action under General Municipal Law § 205-e (see Giuffrida v Citibank Corp., 100 NY2d 72, 77-78 [2003]; Gonzalez, 93 NY2d 539; Schiavone v City of New York, 92 NY2d 308 [1998]). Schiavone and Giuffrida noted that in the 1992 amendment the legislature rejected judicial interpretations limiting a police officer’s action under General Municipal Law § 205-e to injuries related to safety and maintenance violations concerning a “premises” (Schiavone, 92 NY2d at 314; Giuffrida, 100 NY2d at 77-78). Instead, the legislature concluded that because “police officers are required to confront dangerous conditions under many and varied circumstances, there is a need to ensure that a right of action exists regardless of where the violation causing injury or death occurs” (L 1992, ch 474, § 1 [responding to Sciarrotta v Valenzuela, 182 AD2d 443, 445 (1st Dept 1992) and Cooper v City of New York, 182 AD2d 350, 351 (1st Dept 1992), affd 81 NY2d 584 (1993)]; see also Giuffrida, 100 NY2d at 78; Schiavone, 92 NY2d at 314).

Giuffrida and Gonzalez both discussed how in 1996 the legislature again amended General Municipal Law § 205-e to expand its scope and application (Giuffrida, 100 NY2d at 78; Gonzalez, 93 NY2d at 548; see L 1996, ch 703, § 2). Then, in Gonzalez, this Court pointed out that the addition of subdivision (3) to permit liability even in cases where the injury is due to a violation of a codified common-law duty, constituted another rejection of a judicial decision holding otherwise (93 NY2d at 549 [discussing St. Jacques v City of New York, 215 AD2d 75 (1995), affd 88 NY2d 920 (1996) (holding overruled by the 1996 amendment)]).

Thus, this Court has recognized that these amendments, enacted on the heels of judicial decisions constricting the application of General Municipal Law § 205-e, manifest the legislature’s determination to bring courts in line with the legislative goal of providing a cause of action for police officers for negligent noncompliance with the law. Indeed, the legislative history of the 1996 amendments sets the record straight that by amending the statute our state elected officials

“intended to ensure once and for all that section 205-e of the general municipal law is applied by the courts in accordance with its original legislative intent to offer an umbrella of protection for police officers, who, in the course of their many and varied duties, are injured by the negligence of anyone who violates any relevant statute, ordinance, code, rule and/or regulation” (L 1996, ch 703, § 1; see also Giuffrida, 100 NY2d at 78).

Any doubts as to the legislative directive to the judiciary were laid to rest in Williams v City of New York, wherein this Court stated thát this “series of amendments to section 205-e teaches us that we should apply this provision ‘expansively’ so as to favor recovery by police officers whenever possible” (2 NY3d 352, 364 [2004], citing Gonzalez, 93 NY2d at 548).

m.

With this understanding of the legislative intent to give broad application to General Municipal Law § 205-e, we turn to defendants’ challenge to plaintiffs cause of action for damages. To succeed on their summary judgment motion, defendants must establish “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also CPLR 3212 [b]). For the reasons we discuss, defendants have failed to meet their burden.

In order to assert a claim under General Municipal Law § 205-e, a plaintiff “must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm” (Williams, 2 NY3d at 363 [internal quotation marks omitted], quoting Giuffrida, 100 NY2d at 79). Defendants allege plaintiff cannot satisfy the first requirement because the Labor Law may not serve as a basis for her cause of action. We disagree.

As a predicate to her General Municipal Law damages cause of action plaintiff relies specifically on Labor Law § 27-a (3) (a) (1), which provides that

“[e]very employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees.”

Defendants counter that because PESHA lacks a private right of action plaintiff cannot base her General Municipal Law § 205-e claim on section 27-a. However, that is exactly what General Municipal Law § 205-e permits and what the legislature intended. While it is true that PESHA does not contain an express private right of action (Hartnett v New York City Tr. Auth., 86 NY2d 438, 443 [1995]), General Municipal Law § 205-e does not require that the predicate for a police officer’s action contain an existing right to sue. We do not read nonexisting requirements into legislation for

“ ‘[a] court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit’ because ‘the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended’ (McKinney’s Cons Laws of NY, Book 1, Statutes § 74). In other words, we cannot read into the statute that which was specifically omitted by the legislature” (Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 62 [2013]).

Furthermore, reading such requirement into General Municipal Law § 205-e would be antithetical to the recognized legislative goal that this provision “offer an umbrella of protection for police officers” for violations of “any relevant statute, ordinance, code, rule and/or regulation” (L 1996, ch 703, § 1).

To the extent defendants argue that as a matter of law a general duty clause, such as that contained in section 27-a, cannot serve as a predicate for General Municipal Law § 205-e liability, we find that argument without support in the General Municipal Law or our prior decisions. In order to recover under General Municipal Law § 205-e “[the] police officer must demonstrate [an] injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (Williams, 2 NY3d at 364 [internal quotation marks omitted], citing Galapo v City of New York, 95 NY2d 568, 574 [2000]). If a statute that provides for a general duty satisfies this requirement it may serve as a basis for a General Municipal Law § 205-e cause of action (id.).

This Court held as much in Gonzalez v Iocovello. In Gonzalez we concluded that a General Municipal Law § 205-e cause of action could be predicated upon violation of Vehicle and Traffic Law § 1104 (e), which imposed a duty that drivers of authorized emergency vehicles drive with due regard for the safety of all persons, and without reckless disregard for the safety of others (93 NY2d at 551). In the companion case of Cosgriff v City of New York, we similarly found the predicate basis for plaintiffs General Municipal Law § 205-e cause of action in the New York City Charter § 2903 (b) (2) requirement that the Commissioner of the New York City Department of Transportation shall “have charge and control of . . . repair[ing] . . . public roads . . . [and] streets” and the Administrative Code of the City of New York § 7-201 requirement that the City receive prior written notice of a defective sidewalk in order to be held liable (93 NY2d at 552-553). In both matters we found that the relevant provisions imposed clear legal duties, and reiterated that a proper predicate may contain “either a particularized mandate or a clear legal duty” (id. at 551; cf. Desmond v City of New York, 88 NY2d 455, 464 [1996]; see also Hayes v City of New York, 264 AD2d 610 [1999] [duty imposed upon building owners to keep buildings in good repair pursuant to Multiple Dwelling Law §78 was a valid predicate for section 205-e]).

The question then is whether section 27-a contains a clear legal duty, expressed in a well-developed body of law and regulation (Williams, 2 NY3d at 364; Gonzalez, 93 NY2d at 551). We find that it does.

The legislature enacted PESHA “to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under” the federal Occupational Safety and Health Act (OSHA) (Williams, 2 NY3d at 367, quoting Hartnett, 86 NY2d at 442). The provisions contained in PESHA are modeled on OSHA, and are intended to ensure the common goal of these federal and state statutes, i.e. a safe workplace. In fact, New York State has adopted OSHA’s workplace safety standards (12 NYCRR 800.3; see Williams, 2 NY3d at 367). These regulations cover a broad spectrum of safety issues (see e.g. Electrical Safety-Related Work Practices, 55 Fed Reg 46052 [1990], codified at 29 CFR part 1910; Occupational Exposure to Bloodborne Pathogens, 56 Fed Reg 64004 [1991], codified at 29 CFR 1910.1030; Concrete and Masonry Construction Safety Standards, 55 Fed Reg 42306 [1990], codified at 29 CFR part 1926). Thus, PESHA like OSHA, has an established regulatory scheme.

Within this statutory framework, section 27-a (3) (a) (1) imposes on employers a duty to provide a safe workplace “free from recognized hazards[,] . . . [and] reasonable and adequate protection to the lives, safety or health of its employees.” This duty, albeit general, is sufficiently clear to provide a basis to determine liability. Notably, as in Gonzalez, the standard is set forth in a statute, here in PESHA, in Gonzalez, in Vehicle and Traffic Law § 1104. Also, the mandate that employers provide a workplace “free from recognized hazards” sets a standard at least as sufficient to define the duty of care as the “reckless disregard” duty of care incorporated into Vehicle and Traffic Law § 1104, which we referenced approvingly in Gonzalez. To the extent defendants contend that this standard is no more specific than a general common-law duty of care, the legislature has made clear that a police officer has a right of action “regardless of whether the injury ... is caused by the violation of a provision which codifies a common-law duty” (General Municipal Law § 205-e [3]). Therefore, the statute and its regulations are a “well-developed body of law and regulation [s] that impose [ ] clear duties” Williams, 2 NY3d at 364).

The decision in Williams supports our conclusion here. In Williams this Court left open the question whether PESHA may serve as a statutory predicate to a General Municipal Law § 205-e cause of action, deciding only that the Williams plaintiffs failed to establish a violation of Labor Law § 27-a because that provision “does not cover the special risks faced by police officers because of the nature of police work” (id. at 368). As a point of clarity, Williams contrasted the Second Department’s decision in Balsamo v City of New York (287 AD2d 22 [2d Dept 2001]), finding that the injuries in that case arguably came within PESHA because they were the type of “occupational injuries” that “PESHA is designed to prevent,” rather than “risks unique to police work” which fall outside the statute (Williams, 2 NY3d at 368). Thus, Williams suggested that given the proper circumstances, PESHA could certainly serve as a predicate to a General Municipal Law § 205-e suit.

Here, plaintiff alleges that she suffered an injury involving an improperly equipped police truck while in the line of duty. Plaintiffs claim does not involve the type of special risks faced by police officers that Williams found were outside the scope of PESHA, which involved life and death decisions. Instead, her claim is strikingly similar to the claim in Balsamo, which involved an alleged physical injury to a police officer when his knee hit a sharp protruding edge of a computer mounted off the floor of his police vehicle (287 AD2d 22). As we stated in Williams, PESHA arguably covers such claim as an occupational injury involving an “improperly equipped vehicle” (Williams, 2 NY3d at 368).

Defendants additionally argue that Labor Law § 27-a cannot serve as a predicate because that statute establishes a regulatory scheme under which the Commissioner of Labor has sole authority over enforcement for violations of the statute. According to defendants, permitting private actions would undermine the Commissioner’s role and upset regulatory enforcement because PESHA’s detailed statutory scheme does not vest courts with jurisdiction to determine whether a PESHA violation has occurred. We are also unpersuaded by this argument.

First, the Commissioner is empowered to investigate allegations of existing workplace hazards, and enforce violations where an employer fails to cure noncompliance with PESHA (see Labor Law § 27-a [5], [6]). Therefore, the Commissioner’s enforcement powers are unrelated to and distinct from plaintiffs action against her employer for damages incurred as a result of an injury caused by a recognized hazard. We find no support for defendants’ argument that the Commissioner’s role to ensure a safe workplace is adversely affected by permitting an injured employee to seek relief for harm caused by a violation of PE-SHA. Second, defendants’ claim that judicial consideration of PESHA’s coverage will undermine the Commissioner’s duties is belied by the fact that under General Municipal Law § 205-e courts may consider noncompliance with the statute and its regulations as evidence of negligence (General Municipal Law § 205-e [1] [“failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments”]).

We reject defendants’ invitation to read General Municipal Law § 205-e so as to foreclose plaintiff’s action, for doing so would ignore years of legislative enactments decrying just such a result. Based on the legislative intent to provide police officers with a right to sue in torts against their employers, and the legislature’s mandate that the courts expansively apply section 205-e, we hold that PESHA’s general duty clause serves as a predicate to plaintiffs General Municipal Law § 205-e cause of action for damages. Therefore, we reject defendants’ contention that as a matter of law Labor Law § 27-a (3) (a) (1) cannot serve as a statutory predicate.

IV

With respect to defendants’ alternative argument that plaintiff has failed to assert a violation of the duty set forth in section 27-a (3) (a) (1) because she has not established that her injury was due to a “recognized hazard,” the Appellate Division properly concluded defendants failed to support this allegation in their summary judgment motion. A plaintiff must establish both a statutory predicate for the General Municipal Law § 205-e claim as well as a statutory violation (Williams, 2 NY3d at 365). Here, plaintiff claims the truck was too short and lacked the proper railings for the task of barrier loading. Plaintiff’s claim is thus premised on her allegation that she suffered an injury while working on an improperly equipped truck, which Williams stated could be treated as an occupational injury covered by PESHA. Defendants failed to satisfy their threshold summary judgment burden by providing proof of their assertion that plaintiffs injury was not due to a recognized hazard within the meaning of the statute (see Johnson v Culinary Inst. of Am., 95 AD3d 1077, 1078 [2d Dept 2012]).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and the certified question answered in the affirmative.

Pigott, J.

(dissenting). Because, in my view, Labor Law § 27-a (3) (a) (1), by itself, is too general to serve as a predicate for a General Municipal Law § 205-e cause of action, I respectfully dissent.

We explained in Williams v City of New York (2 NY3d 352 [2004]) that “as a prerequisite to recovery [under General Municipal Law § 205-e], a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (id. at 364 [citations omitted and emphasis supplied]; see Desmond v City of New York, 88 NY2d 455, 463-464 [1996] [stating that section 205-e “was not enacted to give police officers an unrestricted right to recover for all negligently caused line-of-duty injuries. Nor was it intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be”]). Section 27-a (3) (a) (1) requires every employer to

“furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees.”

This provision is a general one, and we have previously referred to it as the “general duty” clause (Williams, 2 NY3d at 367).

Plaintiff claims that she is entitled to recover under the general duty clause because the truck from which she fell was dangerous and defective, i.e., it was too short to accommodate the barriers she was asked to load. Relying on the companion cases Gonzalez v Iocovello and Cosgriff v City of New York (93 NY2d 539 [1999]), the majority claims that this section provides a “clear legal duty, expressed in a well-developed body of law and regulation” (majority op at 571). The provisions in those cases, however, were plainly more specific and set forth legal duties that were more clear than section 27-a (3) (a) (l)’s requirement that employers provide a safe workplace (see Gonzalez, 93 NY2d at 550-551 [holding that Vehicle and Traffic Law § 1104 (e) could serve as a predicate for liability because it did not absolve operators of emergency vehicles of liability for “reckless disregard for the safety of others”]; Cosgriff, 93 NY2d at 552-553 [holding that sections of the New York City Charter and Administrative Code of City of NY concerning repairs of defective sidewalks could serve as a predicate for General Municipal Law § 205-e liability]). In each of those cases, we were asked to examine laws or regulations that dealt with clear legal duties, whereas, in contrast, although the general duty clause here may impose some abstract “duty” to provide a safe workplace, it could hardly be said that it is the type of “clear legal duty” mentioned in Williams.

That does not mean, however, that a police officer or firefighter could never utilize Labor Law § 27-a (3) (a) (1) as a predicate, only that in order to do so, they should be required to cite to a specific regulation that they claim was violated. It is not insignificant that Labor Law § 27-a requires the Commissioner of Labor to not only “adopt all safety and health standards promulgated under the United States Occupational Safety and Health Act of 1970” (Labor Law § 27-a [4] [a]), but also to “promulgate rules and regulations recommended to him by . . . [the state occupational safety and health hazard abatement board] which establish standards whenever such board finds” either that no federal standard exists or that a federal standard exists but that conditions in public workplaces require a different standard (Labor Law § 27-a [4] [b] [i], [ii]). These standards promote section 27-a (3) (a) (l)’s goal of providing a safe workplace, and it is not coincidental that section 27-a (3) (a) (2) requires every public employer to “comply with the safety and health standards promulgated under [section 27-a].”

In this respect, I would employ the same analysis to the claims made by police officers and firefighters under the general duty clause that we employ in our analysis of a Labor Law § 241 (6) cause of action. With respect to the latter claim — which is routinely brought by a construction worker against a contractor and owner — we have required the worker to identify the specific rule or regulation promulgated by the Commissioner of Labor that the contractor or owner allegedly violated (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; see also Labor Law § 241 [6]). The rule or regulation alleged to have been violated must be a “specific” and “positive command” rather than a mere reiteration of a common-law standard of care that would do little more than incorporate “the ordinary tort duty of care into the Commissioner’s regulations” (Ross, 81 NY2d at 504).

Here, the majority claims that the common-law standard of care — the duty to provide a safe workplace — by itself, may serve as a predicate for a General Municipal Law § 205-e claim. In my view, a plaintiff must do more than just cite to a common-law duty of care in order to recover under General Municipal Law § 205-e while utilizing the general duty clause as a predicate; the plaintiff should also be required to cite to at least one of the hundreds of thousands of regulations either adopted or promulgated by the Commissioner of Labor.

Plaintiff has done so in this case, asserting, in addition to her claim under the general duty clause, that defendants violated 29 CFR 1910.23 (c) (1), which is an Occupational Safety and Health Act provision. Neither the Appellate Division nor Supreme Court addressed whether this provision applied to the facts of this case. Therefore, I would remand to Supreme Court to consider the applicability of that federal regulation to plaintiffs General Municipal Law § 205-e cause of action.

Chief Judge Lippman and Judges Smith and Abdus-Salaam concur; Judge Pigott dissents in an opinion in which Judge Read concurs.

Order, insofar as appealed from, affirmed, with costs, and certified question answered in the affirmative.

      . Courts regularly refer to General Obligations Law § 11-106 (1) as the “fireman’s rule,” originally, a “long-standing common-law rule that firefighters injured while extinguishing fires generally [could not] recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires” (Schiavone v City of New York, 92 NY2d 308, 313 n 2 [1998] [citation omitted]). The rule has been extended to police officer actions, and, as amended, General Obligations Law § 11-106 (1) is applied only in actions against a police officer’s or firefighter’s employer or co-employee.

      . 29 CFR 1910.23 (c) (1) entitled “Protection of open-sided floors, platforms, and runways” provides:
      “Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a toeboard wherever, beneath the open sides,
      “(i) Persons can pass,
      “(ii) There is moving machinery, or
      “(iii) There is equipment with which falling materials could create a hazard.”

      . Supreme Court granted defendants’ motion in part, dismissing the common-law negligence cause of action as barred by the firefighter’s rule.

      . Additional amendments in 1994 and 1999 extended the time in which certain actions may be brought on behalf of injured or deceased police officers (see L 1994, ch 664; L 1999, ch 466).

      . Section 27-a’s mandate is also no less sufficient to define a duty of care than the duty set forth in Administrative Code § 27-127 requiring sill buildings “be maintained in a safe condition” as suggested by Williams (2 NY3d at 368).