author: Jones, J.

text:
    [909 NE2d 70, 881 NYS2d 377]
    Boris Khrapunskiy et al., Respondents, v Robert Doar, as Commissioner of the New York State Office of Temporary and Disability Assistance, Appellant.
    Argued March 25, 2009;
    decided May 12, 2009

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, New York City (Oren L. Zeve, Barbara D. Underwood and Michelle M. Aronowitz of counsel), for appellant.
    I. New York Constitution article XVII does not require the State of New York to provide public assistance at the Supplemental Security Income standard of need. (Tucker v Toia, 43 NY2d 1; Matter of Bernstein v Toia, 43 NY2d 437; Lovelace v Gross, 80 NY2d 419; Matter of Barie v Lavine, 40 NY2d 565; Matter of Aliessa v Novello, 96 NY2d 418; Matter

      of Lee v Smith, 43 NY2d 453; Pajak v Pajak, 56 NY2d 394; Matter of Zagoreos v Conklin, 109 AD2d 281.) II. Equal protection does not compel a state to create a public assistance program to replace benefits denied by operation of federal law. (Cleburne v Cleburne Living Center, Inc., 473 US 432; Bower Assoc. v Town of Pleasant Val., 2 NY3d 617; Dandridge v Williams, 397 US 471; Matter of Aliessa v Novello, 96 NY2d 418.)

      Legal Aid Society, New York City (Scott A. Rosenberg and Steven Banks of counsel), Empire Justice Center, Albany (Barbara Weiner of counsel), New York Legal Assistance Group, New York City (Yisroel Shulman and Jane Stevens of counsel), and Weil, Gotshal & Manges LLP (Richard Slack and Idit Froim of counsel), for respondents.
    I. The provision of lower assistance levels to elderly, blind and disabled immigrants based solely on immigration status violates the Equal Protection Clause. (Mathews v Diaz, 426 US 67; Graham v Richardson, 403 US 365; Nyquist v Mauclet, 432 US 1; Matter of Aliessa v Novello, 96 NY2d 418; Bernal v Fainter, 467 US 216; Matter of Lee v Smith, 43 NY2d 453; Dandridge v Williams, 397 US 471.) II. The State of New York’s provision of lower assistance levels to equally needy classes of persons based on criteria unrelated to need violates article XVII of the New York State Constitution. (Tucker v Toia, 43 NY2d 1; Matter of Lee v Smith, 43 NY2d 453; Rice v Perales, 193 AD2d 1135; People v Dozier, 78 NY2d 242; Goodwin v Wyman, 330 F Supp 1038, 406 US 964; Matter of Aliessa v Novello, 96 NY2d 418; Jiggetts v Grinker, 75 NY2d 411; Matter of Brown v Wing, 170 Misc 2d 554, 241 AD2d 956.)

      Michael A. Cardozo, Corporation Counsel, New York City (Francis F. Caputo, Alan G. Krams and Karen M. Griffin of counsel), for City of New York, amicus curiae.
    Neither article XVII of the State Constitution nor the federal or state Equal Protection Clauses require the State of New York to provide public assistance to plaintiffs at the Supplemental Security Income standard of need. (Matter of Bernstein v Toia, 43 NY2d 437; Tucker v Toia, 43 NY2d 1; Baumes v Lavine, 38 NY2d 296; Rosado v Wyman, 397 US 397; Matter of Barie v Lavine, 40 NY2d 565; Dandridge v Williams, 397 US 471; Matter of Jones v Blum, 64 NY2d 918; Matter of Bates v Toia, 45 NY2d 460.)
   OPINION OF THE COURT

Jones, J.

The question before the Court is whether under the State and Federal Constitutions, plaintiffs are entitled to receive from the State the same level of benefits received by aged, blind or disabled United States citizens from the federal Social Security program. We hold that plaintiffs are not entitled to such benefits.

I.

In New York State, eligible needy aged, blind or disabled individuals receive public assistance through Supplemental Security Income (SSI) from the federal government, along with additional state payments (ASP) provided by the State. The SSI program was established in 1972, effective in 1974, by the United States Congress to provide aid to individuals who because of their physical condition were unable to support themselves (42 USC § 1381 et seq.). The federal government manages SSI/ASP payments and makes all administrative and eligibility determinations (Social Services Law § 211).

Prior to 1974, New York State provided public assistance under its own program entitled “Aid to the Aged, Blind and Disabled” (AABD) pursuant to former Social Services Law, article 5, title 6. As a result of the federal takeover of this category of public assistance, the State discontinued the AABD program and repealed the old law. But in order to ensure that the benefits provided would not be less than whatever current benefits were being received after the transfer from state to federal funding, Congress required the states to provide a mandatory minimum supplement so that total aid was at least equal to the pre-SSI levels. New York therefore adopted a new title 6 of article 5 of the Social Services Law, entitled Additional State Payments for Eligible Aged, Blind and Disabled Persons (Social Services Law §§ 207-212), which provided additional state payments to the aged, blind and disabled who either received federal SSI payments (see 42 USC § 1381 et seq.), or whose income or resources, though above the standard of need for the SSI program, was not sufficient under Social Services Law § 209 (2). At the time ASP was adopted, eligibility was limited to aged, blind or disabled persons who were residents of New York State and either United States citizens or aliens who had not been determined by an appropriate federal authority to be unlawfully residing in the United States.

In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (Pub L 104-193 tit TV, codified at 8 USC § 1601 et seq.), otherwise known as the “Welfare Reform Act,” which restricted alien eligibility for federally funded public assistance benefits and authorized the states to follow suit with their own programs. Under PRWORA, legal aliens who do not become United States citizens in seven years lose their SSI and ASP benefits. Thereafter, in 1998, New York’s Social Services Law § 209 (1) (a) (iv) was amended to limit eligibility for ASP to residents of the state who, if not citizens of the United States, are aliens eligible for federal benefits. The purpose of the amendment was to conform state law with federal law and to “make clear which aliens may be eligible for state supplementation of the federal supplemental security income program” (Senate Mem in Support of L 1998, ch 214, 1998 McKinney’s Session Laws of NY, at 1667). Therefore, when Congress created a class of legal aliens who would become ineligible for SSI/ASP benefits, the State discontinued supplemental support for this class under Social Services Law § 209 and, instead, provided public assistance pursuant to Social Services Law § 131-a (2), also known as the state-funded “safety net assistance” (SNA) provision. Under the “safety net” program, eligible individuals would receive approximately $352 in the form of a shelter allowance, a basic grant, a home energy allowance, a supplemental home energy allowance and a fuel allowance if heat is not included in rent (see Brownley v Doar, 12 NY3d 33, 39 n 2 [2009]).

II.

Plaintiffs are aged, blind or disabled persons and legal resident aliens of New York State who became ineligible for SSI payments and ASP because they did not become citizens in the time frame mandated by the United States Congress in the PRWORA or were never eligible for SSI/ASP by virtue of the act. Plaintiffs commenced this action against defendant Commissioner of the New York State Office of Temporary and Disability Assistance (OTDA) in 2004 and moved for class certification and a preliminary injunction. In an amended complaint filed in March 2005, plaintiffs alleged that defendant failed to provide legal immigrants with assistance consistent with the standard of need in Social Services Law § 209 (2) for aged, blind or disabled persons based solely on their immigration status, without regard to their need, and in violation of article XVII of the New York State Constitution, because SSI/ASP benefits totaled $761 per month whereas SNA provided $352 in monthly support. The amended complaint also alleged a violation of the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and article I, § 11 of the New York State Constitution. Plaintiffs sought an order requiring OTDA to provide retroactive payments and ongoing assistance in an amount consistent with Social Services Law § 209 (2). Supreme Court granted plaintiffs’ motions for certification, certifying a class defined as “All persons identified to, or identifiable by, defendant as elderly, blind, and disabled persons lawfully residing in New York State who have received, are receiving, or will receive assistance at less than the standard of need set out in [Social Services Law §] 209 (2), solely because of their immigration status,” and summary judgment (9 Misc 3d 1109[A], 2005 NY Slip Op 51462[U], *8). The court held that OTDA’s failure to provide assistance to plaintiffs and the class at the standard of need for the elderly, blind and disabled set out in Social Services Law § 209 (2) violates article XVII, § 1 of the State Constitution and the right of plaintiffs and the class to the equal protection of the laws under the Federal and State Constitutions. The court therefore permanently enjoined OTDA from failing to provide assistance to plaintiffs and the class consistent with the standard of need set out in Social Services Law §209.

The Appellate Division affirmed the order of Supreme Court holding that plaintiffs were entitled to receive public assistance under SNA at the level of citizens under SSI/ASP as set forth in Social Services Law § 209 (2) (49 AD3d 201 [2008]). Plaintiffs were thereby entitled to state safety net assistance pursuant to Social Services Law § 131-a (2) plus an additional payment by the State sufficient to bring their benefits up to the SSI/ASP level. The Appellate Division granted defendant leave to appeal and certified the following question to this Court: “Was the order of Supreme Court, as affirmed by this [c]ourt, properly made?” We answer this question in the negative.

III.

OTDA argues that article XVII of the New York State Constitution does not require the State to provide SNA public assistance at the Social Services Law § 209 (2) SSI/ASP standard of need. According to OTDA, State Constitution, article XVII, § 1 requires the State to provide for the needy in a “manner and by such means, as the legislature may from time to time determine” but does not mandate a particular level of aid to any individual or class; and Social Services Law § 209 (2) sets a standard of need for recipients of SSI but is not a general standard of need or independent financial commitment by the Legislature to a class of all aged, blind or disabled individuals who are ineligible for federal Social Security benefits.

OTDA further argues that equal protection does not compel the State to create a public assistance program to provide benefits discontinued by operation of federal law. OTDA contends that plaintiffs are not being treated unequally by the State because they have failed to identify any New York resident who receives public assistance from the State at the Social Services Law § 209 standard of need.

Plaintiffs claim the State violates article XVII of the State Constitution because it does not provide for SNA at the standard of need set forth and defined in Social Services Law § 209 (2). Specifically, plaintiffs note that article XVII of the State Constitution requires the State to provide for the aid, care and support of the needy, and argue that section 209 (2) establishes a standard of need for all needy elderly and disabled lawful residents of the state, whether or not they are citizens of the United States. As such, plaintiffs argue, the State by failing to provide SNA benefits in an amount equal to the level set forth in section 209 (2) violates article XVII of the State Constitution.

IV

At the outset, we note that ASP is not a stand-alone program which sets a “standard of need” for all elderly, blind or disabled individuals within the state. ASP, a supplement to the SSI program established by the federal government and Social Services Law § 209 (2), merely sets forth “the standard of monthly need for determining eligibility for and the amount of additional state payments.” ASP represents a supplementary monetary amount which is included in the single check received by SSI recipients from the federal Social Security Administration (SSA) which administers SSI and ASP together.

While it is true that New York State did have a public assistance program, AABD, which provided for the needy aged, blind or disabled, it discontinued that separate program more than 30 years ago when the federal government began providing for this population through the SSI program in 1974. The federal government set the SSI benefit level; however, participant states were required to supplement the federal contribution. In order to fulfill the requirement of participation by the State, the Legislature enacted ASI] turning control of its AABD program over to the federal government and providing a small contribution to SSI. In order to avoid a reduction in benefits upon the transfer to the SSI program, a mandatory minimum state supplement for those who received AABD in December 1973 was set forth in Social Services Law § 210 (see 42 USC § 1382e). Failure to enact the mandatory minimum supplement or the mandatory maintenance of effort supplement results in a penalty to the State’s federal Medicaid funding (see 42 USC § 1382g [a]). With the foregoing as a backdrop, we first consider the parties’ claims under article XVII of the State Constitution.

Article XVII, § 1 requires the State to provide for the aid, care and support of the needy. This provision “was intended to serve two functions: First, it was felt to be necessary to sustain from constitutional attack the social welfare programs . . . created by the State . . . and, second, it was intended as an expression of the existence of a positive duty upon the State to aid the needy” (Tucker v Toia, 43 NY2d 1, 7 [1977]).

“[T]he provision for assistance to the needy is not a matter of legislative grace; rather, it is specifically mandated by our Constitution. Section 1 of Article XVII of the New York State Constitution declares:
‘The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine’ ” (Tucker, 43 NY2d at 7).

However, article XVII, § 1 of the State Constitution, which requires the State to provide for the aid, care and support of the needy, does not “mandate that public assistance must be granted on an individual basis in every instance,” nor does it command that “the State must always meet in full measure all the legitimate needs of each [public assistance] recipient” (Matter of Bernstein v Toia, 43 NY2d 437, 448-449 [1977]). In Bernstein, this Court upheld the replacement of individual grants for shelter with a flat grant based upon fiscal constraints and the need to optimize available public assistance moneys. In our recent decision Brownley v Doar (12 NY3d at 43-44), we reiterated that it is the prerogative of the Legislature to determine who is needy and to allocate public funds.

When the federal government enacted PRWORA the State amended ASP to mirror SSI’s new eligibility criteria; individuals who became ineligible for SSI because of this federal change regarding citizenship became eligible only for “safety net” assistance. On the other hand, the decisions by the courts below require the State to set up an entirely new public assistance program to pay the difference between SSI/ASP benefits ($761) and what SNA currently provides ($352). As aptly pointed out by OTDA, this would be an ever-increasing amount over which the Legislature has no control and would create a disparity in the monthly aid received by other recipients of SNA. We hold that article XVII does not compel the State to assume the federal government’s obligation when an elderly or disabled person becomes ineligible for continued SSI/ASP benefits.

Next, we examine the parties’ equal protection claims. In considering whether a state statute violates the Equal Protection Clause, the Supreme Court applies different levels of scrutiny to different types of classifications. As a general rule, the Supreme Court has strictly scrutinized state laws that create alienage classifications when distributing or regulating economic benefits. Under strict scrutiny, a state statute will withstand an equal protection challenge only when the state can show that the law “furthers a compelling state interest by the least restrictive means practically available” (see Bernal v Fainter, 467 US 216, 227 [1984]). However, the strict scrutiny test is to be invoked only where a challenged law can be said to create classifications drawn along suspect lines. In the instant case, the alienage restriction embodied in Social Services Law § 209 (1) (a) (iv) was mandated by federal law (PRWORA). In conforming the New York statute to mirror the federal law, the State did not create a classification drawn along suspect lines. Because the State did not create a program of benefits which excluded plaintiffs, levels of scrutiny are inapplicable and there is no basis for an equal protection challenge.

In support of their equal protection argument, plaintiffs rely on Matter of Aliessa v Novello (96 NY2d 418 [2001]) where this Court held that Social Services Law § 122 violated the Equal Protection Clauses under the Federal and State Constitutions by denying Medicaid benefits funded solely by the State to plaintiffs based on their status as legal aliens. In Aliessa, we concluded that Social Services Law § 122 was subject to—and could not pass—strict scrutiny because New York enacted a state-based program which provided benefits to citizens but denied the same benefits to aliens (96 NY2d at 436). This Court determined that the concept of need played no part in the operation of the statute, which could not be justified on the basis of a distinction between “qualified aliens,” i.e., aliens who are lawfully admitted for permanent residence (generally, green card holders) or otherwise validly residing in the United States, and those permanently residing in the United States under color of law, i.e., aliens of whom the Immigration and Naturalization Service is aware but has no plans to deport, on the one hand, and citizens on the other.

Plaintiffs also cite to Matter of Lee v Smith (43 NY2d 453 [1977]). In Lee, a plaintiff on SSI received less in benefits than persons who were not disabled and who received public assistance under “home relief.” This Court held that Social Services Law § 158 (a), which provided that a “person who is receiving federal supplemental security income payments and/or additional state payments shall not be eligible for home relief,” was unconstitutional as applied to such recipients because it violated the equal protection guarantees of the Federal and State Constitutions.

Plaintiffs’ and the dissent’s reliance on Aliessa and Lee is misplaced. Aliessa and Lee are distinguishable from the instant case because they both involved a state-funded program—in Aliessa, a Medicaid program, and in Lee, a home relief program. In Lee, exclusion was based on the source of the income, even though the income was below the standard for receiving home relief. In Aliessa, the federal Medicaid program imposed a nationwide policy in which benefits were not available to aliens. However, federal law permitted the states to create a state-funded program. New York enacted such a program which provided benefits to citizens but excluded assistance to aliens. This Court found those exclusions impermissible.

Here, contrary to the view of plaintiffs and the dissenting Judges, there is no equal protection violation. There is no longer a state program of “Aid to the Aged, Blind and Disabled.” The AABD program ceased in 1974 when SSI came into being and no state program replaced it when public assistance to that class of individuals was relinquished to the federal government (see Social Services Law § 2 [19]). As there is no state program of aid for this class, there are no state residents receiving public assistance from New York at the level requested by plaintiffs. Simply put, the right to equal protection does not require the State to create a new public assistance program in order to guarantee equal outcomes under wholly separate and distinct public benefit programs. Nor does it require the State to remediate the effects of PRWORA.

In 1998, when the Legislature amended Social Services Law § 209 (1) (a) (iv), it was fully aware of the consequences. The Legislature is charged with providing for the needy; however, it does so mindful of the State’s resources. When the State eliminated its AABD program, it was with the understanding that the federal government would be responsible for this class of needy individuals and that the State would provide a smaller supplementary payment. In short, enactment of a new public assistance program requires legislative action.

Accordingly, the order of the Appellate Division should be reversed, without costs, judgment granted declaring in accordance with this opinion and the certified question answered in the negative.

Ciparick, J. (dissenting). Because the majority today forecloses the availability of benefits at an appropriate standard of need to some of our indigent elderly, blind and disabled New Yorkers based solely on their immigration status, and because our precedents in Matter of Lee v Smith (43 NY2d 453 [1977]) and Matter of Aliessa v Novello (96 NY2d 418 [2001]) compel a holding in favor of plaintiffs, I respectfully dissent and would hold that Social Services Law § 122 (1) (f) and § 209 (1) (a) (iv) are unconstitutional and violative of article XVII of the New York State Constitution and the Equal Protection Clauses of both the United States and New York State Constitutions, and would affirm the order of the Appellate Division.

All of the 20 named plaintiffs are indigent and elderly, blind or disabled legal aliens and residents of New York State. Some are refugees who fled religious or political persecution in their home countries. Many of them are now ineligible for federal Supplemental Security Income (SSI) benefits simply because they did not attain citizenship within a seven-year period as required by federal statute; in some cases due to long delays in the processing of their applications as a result of hardships caused by age and poor health or lack of English-language skills. Although plaintiffs may have once been eligible for SSI and additional state payments (ASP) under Social Services Law § 209, they became ineligible by virtue of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) in 1996 (8 USC § 1601 et seq.) and conforming state enactments.

I

New York has a long history of providing for its poor elderly, blind and disabled. New York State Constitution, article XVII, § 1 makes clear that aid for the needy is a public concern. It “imposes upon the State an affirmative duty to aid the needy . . . [and] unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy” (see Tucker v Toia, 43 NY2d 1, 8 [1977]; Matter of Aliessa v Novello, 96 NY2d 418, 428 [2001]; Jiggetts v Grinker, 75 NY2d 411, 416 [1990]).

In 1930, in enacting a statewide system of old age relief, the Legislature declared that providing for aged or disabled persons in need is a “special matter of state concern and a necessity in promoting the public health and welfare” (Public Welfare Law § 122, added by L 1930, ch 387). In 1937, the Legislature enacted a similar bill for the blind, replacing a 1922 law, and declared that assistance for the blind is a “special matter of state concern” (Public Welfare Law § 112, added by L 1937, ch 15, § 7). Nowhere in these provisions was any restriction based upon alienage—all legal residents of this state who were elderly, blind or disabled received assistance for decades under the State’s Aid to the Aged, Blind and Disabled (AABD) program.

In 1974, in enacting Social Services Law § 209, the Legislature further established its commitment to the special needs for all elderly, blind and disabled in this state. Since 1974, Social Services Law § 209 (2) ensured New York’s standard of need for poor elderly, blind and disabled. It provides that the needs of those whose incomes are below the standard receive ASE Since 1974, New York supplemented the federal SSI payment with ASP to meet its standard of need for plaintiffs’ class. Those whose income was too great to qualify for SSI but still fell below the established standard of need likewise received ASP All poor elderly, blind and disabled, including legal aliens like plaintiffs, whose incomes were below the standard of need, received ASP payments.

In 1996, however, Congress rendered plaintiffs and other legal immigrants ineligible for SSI benefits. It also ceased to administer ASP payments on behalf of these legal residents merely because of their inability, for whatever reason, to become naturalized. In conforming its statutes to the new federal proscriptions, the Legislature directly denied plaintiffs’ class assistance at the same level as citizens or qualifying aliens receiving aid pursuant to the “standard of need,” as set by Social Services Law § 209. Plaintiffs still receive some public assistance, under the safety net assistance program, administered pursuant to Social Services Law § 131-a (2). Those payments, however, are substantially less than those for identically situated SSI and ASP recipients.

The State’s claim that the Legislature contemplated a system of supplemental aid only for those eligible for SSI benefits is incorrect. Section 209 applies equally to those who are ineligible for SSL It is not tied to SSI benefits, nor is there reason to suppose that the standard was artificially inflated by reason of the availability of SSL It certainly is not circumscribed by any immigration classification. In using the term of art “standard of monthly need,” the Legislature used a term found throughout the Social Services Law that is strictly need-based. The concept of a standard of need dependent upon alienage, instead of financial need, is incongruous to the plain meaning of the term “standard of need.”

Furthermore, when the Legislature enacted sections 207-209, it established the standard of need at a higher level than SSL All New York residents were eligible for additional state payments, including either “a citizen of the United States or . . . an alien who has not been determined by an appropriate federal authority to be unlawfully residing in the United States” (L 1974, ch 1080, § 1, adding Social Services Law § 209 [1] [a] [iv] [subsequently amended by L 1998, ch 214, § 8]). In support of this legislation, the Governor’s Program Bill Memorandum said: “The federal program provides a uniform standard of need (and payment) nationwide; unfortunately, that standard is far lower than the standard of need for these same persons under the state’s former AABD program” (1974 NY Legis Ann, at 147). The Legislature further reaffirmed its commitment

“to meeting the income needs of aged, blind and disabled persons who are receiving basic supplemental security income benefits or whose income and resources, though above the standard of need for the supplemental security income program, is not sufficient to meet those needs. In order to maintain assistance for such persons at a level consistent with their needs . . . there is hereby established a statewide program of additional state payments for aged, blind and disabled persons” (Social Services Law § 207).

In fact, Governor Wilson, in supporting the legislation, stated that the federal SSI program “completely failed to meet the special needs of this group” (Governor’s Approval Mem, Bill Jacket, L 1974, chs 1080, 1081, reprinted in 1974 NY Legis Ann, at 434). He added that sections 207 and 209 “represent a commitment of State funding to mitigate the omissions and inequities of the Federal program” (id.).

Considering the Legislature found SSI benefits to be grossly inadequate, it certainly would not have envisioned today’s payments to needy legal aliens at almost half that of the level of SSI payments. Nor would the Legislature have made clear its intention to continue making additional state payments even if the federal government did not continue administrating the SSI program, if it really had intended to base its standard of need on SSI eligibility alone (1974 NY Legis Ann, at 147). There is simply no evidence that the State viewed the availability of SSI as extinguishing its underlying obligation to these specially needy residents. Thus, the State cannot relinquish its obligation to provide legal residents assistance at the statutorily created standard of need, and to do so now impermissibly imports non-need-based restrictions on immigrant eligibility into the state assistance program for the elderly, blind and disabled.

The majority’s position is thus inconsistent with the long tradition in New York of fully providing assistance to the poor aged, blind and disabled, and is contrary to our controlling case of Aliessa (see 96 NY2d at 429). There, we held that Social Services Law § 122 (1) (c) violated the “letter” and “spirit” of article XVII of the State’s Constitution by denying state-funded Medicaid benefits on the basis of immigration status by “imposing on plaintiffs an overly burdensome eligibility condition having nothing to do with need and depriving them of an entire category of otherwise available basic necessity benefits” (id. at 429). The Legislature had terminated Medicaid for noncitizens to mirror the 1996 federal restrictions. However, New York chose to extend Medicaid benefits to more individuals than the federal plan. In doing so, New York could not provide less aid based upon immigration status (id.).

Contrary to the majority, our holding in Matter of Lee v Smith (43 NY2d 453, 463 [1977]), indeed, lends support to plaintiffs’ position here. There, we stated:

“While the State’s adoption of the SSI program means that the Federal Government generally assumes the costs of administration in providing for the aged, disabled and blind, the State’s duty remains. The obligation cannot be avoided by irrevocably assigning the aged, disabled and blind to the Federal program without recourse to State aid, when in many cases this means that they must survive on lesser amounts than are granted to other needy persons in the State” (id.).

The majority’s attempt to limit the holdings of these cases is most regrettable. Here, New York, by adding section 122 (1) (f) to the Social Services Law and amending Social Services Law § 209 (1) (a) (iv), has improperly imported federal restrictions on alien eligibility for benefits, and in doing so has violated article XVII of our State Constitution.

II

Turning to plaintiffs’ equal protection claims, contrary to the majority, I believe that the Legislature, in enacting these conforming statutes, acted impermissibly and in violation of the Equal Protection Clauses under both our Federal and State Constitutions. We held in Aliessa that legal residents are entitled to equal protection under the law (see 96 NY2d at 435-436). The Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws” (US Const, 14th Amend, § 1). The New York State Constitution contains its own equal protection requirement (see NY Const, art I, § 11). We said, “[i]t is axiomatic that aliens are ‘persons’ entitled to equal protection” (Aliessa at 430, quoting Yick Wo v Hopkins, 118 US 356, 369 [1886] [“The fourteenth amendment to the constitution is not confined to the protection of citizens”]; see also Mathews v Diaz, 426 US 67, 77 [1976]).

In considering whether a state statute violates the Equal Protection Clause, the Supreme Court applies different levels of scrutiny to different types of classifications (see Clark v Jeter, 486 US 456, 461 [1988]). As we noted in Aliessa, the Supreme Court generally has strictly scrutinized state laws that create classifications based upon immigration status when distributing economic benefits (see e.g. Bernal v Fainter, 467 US 216, 227-228 [1984] [invalidating a Texas statute that required citizenship for notaries public]; Nyquist v Mauclet, 432 US 1, 7-12 [1977] [striking down a New York statute that restricted eligibility for Regents college scholarships based on alienage]).

Under the strict scrutiny standard, a state statute will withstand an equal protection challenge only when the state can show that the law “furthers a compelling state interest by the least restrictive means practically available” (Bernal, 467 US at 227). Recognizing that “discrete and insular minorities” can be shut out of the political process, the United States Supreme Court has applied a more searching inquiry to statutes that draw classifications aimed at these groups (see United States v Carolene Products Co., 304 US 144, 153 n 4 [1938]). In Graham v Richardson (403 US 365, 372 [1971]), the Court held that, as a class, aliens are a “prime example of a ‘discrete and insular’ minority . . . for whom such heightened judicial solicitude is appropriate.” Lawful resident aliens benefit our country in a great many ways as they contribute to our economy, serve in the Armed Forces and pay taxes; however, they cannot vote, which puts them in a weaker position (see Aliessa at 431, citing Hampton v Mow Sun Wong, 426 US 88, 107 n 30 [1976]).

Here, applying a strict scrutiny standard, as we did in Aliessa, defendant does not contend that it has a compelling interest for allowing residents to receive less assistance based upon immigration status. Defendant claims and the majority agrees that “[b]ecause the State did not create a program of benefits which excluded plaintiffs, levels of scrutiny are inapplicable and there is no basis for an equal protection challenge” (majority op at 487), and it is not discriminating against the plaintiffs’ class. However, as the Appellate Division explained below, the essential issue is whether in amending the Social Services Law to exclude residents previously eligible for ASI^ it did so on permissible grounds. Defendant has not provided any “compelling government interest” in providing plaintiffs’ class with a significantly lower level of assistance based upon their status. The current enactment that provides assistance to citizens and certain conforming immigrants is overly burdensome and without any justification, and prohibited by the Equal Protection Clause.

In conclusion, the majority today has turned its back on the history of New York’s commitment to protect its most fragile and vulnerable populations, and insists that an affirmance here would require the State to set up an entirely new public assistance program requiring legislative action. Certainly, legislative action in this area would be welcomed as provision of lower assistance levels to elderly, blind and disabled immigrants based solely upon alienage violates the Equal Protection Clauses of both the Federal and State Constitutions. Likewise, the provision of lower assistance levels to equally needy classes of persons based on criteria unrelated to need violates article XVII of the New York State Constitution. Therefore, I would hold Social Services Law § 122 (1) (f) and § 209 (1) (a) (iv) to be unconstitutional.

Accordingly, I would affirm the order of the Appellate Division below.

Judges Graffeo, Read, Smith and Pigott concur with Judge Jones; Judge Ciparick dissents and votes to affirm in a separate opinion in which Chief Judge Lippman concurs.

Order reversed, etc.

      . In 1976, Congress enacted a maintenance of effort rule which required states to provide “supplementary payments” in an amount no lower than their December 1976 levels (see 42 USC § 1382g).

      . “Home relief’ was the precursor of the current “safety net program” and in some instances provided a greater payment amount than the payment received by SSI recipients.

      . Under section 2 (19), public assistance refers to family assistance, safety net assistance and veteran assistance.

      . Social Services Law § 122 (1) (f) provides:
      “An alien who is not ineligible for federal supplemental security income benefits by reason of alien status shall, if otherwise eligible, be eligible to receive additional state payments for aged, blind or disabled persons under section two hundred nine of this chapter.”
      Social Services Law § 209 (1) (a) (iv) provides:
      “An individual shall be eligible to receive additional state payments if he: . . . is a resident of the state and is either a citizen of the United States or is not an alien who is or would be ineligible for federal supplemental security income benefits solely by reason of alien status.”

      . Effective January 1, 2009, an individual living alone in New York State who is eligible for SSI receives $674 per month in federal benefits and $87 in additional state payments. As a result of Social Services Law § 209 (1) (a) (iv) and § 122 (1) (f), an identically situated individual in New York City not now eligible for SSI receives $352 per month.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [909 NE2d 1229, 882 NYS2d 392]
    Robert Callahan et al., Appellants, v Hugh L. Carey, as Governor of the State of New York, et al., Defendants, and Edward I. Koch, as Mayor of the City of New York, et al., Respondents. Louise F. Eldredge et al., Appellants, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents.
    Argued May 6, 2009;
    decided June 4, 2009

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Steven Banks, Amanda Moretti and Amy Mulzer of counsel), for appellants.
    I. The Appellate Division incorrectly held that the consent decree does not require the City of New York defendants to provide plaintiffs’ counsel with copies of shelter termination sanction notices when issued to homeless individuals. (19th St. Assoc. v State of New York, 79 NY2d 434; People v Giles, 11 NY3d 495; United States v O’Rourke, 943 F2d 180; United States v Armour & Co., 402 US 673.) II. Absent continued provision of shelter termination sanction notices to plaintiffs’ counsel, vulnerable homeless women and men will be at risk of grave harm.

      Michael A. Cardozo, Corporation Counsel, New York City (Alan G. Krams, Leonard Koerner, Thomas C. Crane and Kristin M. Helmers of counsel), for respondents.
    The Appellate Division correctly applied its earlier decision that an erroneous sanction would not violate the rights secured by the consent decree. (Baker v Shepard, 276 AD2d 873; Jones v 30 Sutton Place Corp., 12 AD2d 455, 10 NY2d 771; Goldberg v Kelly, 397 US 254; Frew v Hawkins, 540 US 431; Matter of Barie v Lavine, 40 NY2d 565.)
   OPINION OF THE COURT

Read, J.

On October 2, 1979, plaintiff Robert Callahan and other homeless men living in New York City brought a class action challenging the sufficiency and quality of shelter made available to them. Plaintiffs were represented by the Legal Aid Society. Defendants were the Governor of the State of New York at the time, Hugh L. Carey, and his Commissioner of Social Services (the State defendants); and the Mayor of New York City at the time, Edward I. Koch, his Commissioner of the Human Resources Administration (HRA) and his Director of the Shelter Care Center for Men (the City defendants). The parties subsequently resolved this lawsuit with a “FINAL JUDGMENT BY CONSENT” dated August 26, 1981; in 1983, this consent decree was extended to cover homeless women living in the City (see Eldredge v Koch, 98 AD2d 675 [1st Dept 1983]).

Paragraph 1 of the decree specifies that

“[t]he City defendants shall provide shelter and board to each homeless man who applies for it provided that (a) the man meets the need standard to qualify for the home relief program established in New York State; or (b) the man by reason of physical, mental or social dysfunction is in need of temporary shelter.”

Paragraph 11—which is key to this appeal—states in its entirety that “[plaintiffs’ representatives shall have full access to all shelter facilities, central intake centers and satellite intake centers, and plaintiffs’ counsel [the Legal Aid Society] shall be provided access to any records relevant to the enforcement and monitoring of this decree” (emphasis added).

In addition, paragraph 10 directs the Commissioner of HRA to “appoint qualified employees with no administrative responsibility for providing shelter to monitor [the City defendants’] shelter care program . . . with respect to compliance with [the] decree”; and make twice monthly written reports to the Commissioner, which “shall be made available to [the Legal Aid Society] upon reasonable notice.” Paragraph 12 requires the City to hand-deliver to plaintiffs’ counsel each day a compilation of five categories of information. Finally, paragraph 19 places continuing jurisdiction in Supreme Court

“for the purpose of enabling any of the parties . . . to apply to [the court] at any time for such further orders and directions as may be necessary or appropriate for the construction, modification, or termination of this entire judgment or of any applicable provisions thereof, for the enforcement of compliance therewith, and for the punishment of violations thereof.”

In 1995, the New York State Department of Social Services (DSS) promulgated regulations authorizing local social services districts, like the City, to evict individuals from shelters for refusing to take certain steps toward self-sufficiency, or engaging in misconduct in the shelter facility (for example, violence, drug-dealing, or repeated violations of the shelter’s rules) (see generally 18 NYCRR 352.35). Shelter residents unable to comply with the regulations’ requirements because of a physical or mental impairment were not subject to eviction (18 NYCRR 352.35 [c]). A shelter resident who received a sanction notice was entitled to a fair hearing conducted by DSS (now by OTDA) (18 NYCRR 352.35 [h]), and continued housing until the fair hearing decision was rendered (18 NYCRR 358-3.6). The sanction of eviction, once imposed, lasted “until the failure [to comply] cease [d], or for 30 days, whichever period of time [was] longer” (see 18 NYCRR 352.35 [c] [2], [3], [4]).

Plaintiffs sought to enjoin implementation of the regulations, arguing that they conflicted with the consent decree. Supreme Court agreed, but the Appellate Division did not. As the Appellate Division put it,

“nothing in the decree . . . provides or even suggests that the defendants undertook to provide shelter unconditionally, indefinitely or regardless of need. The decree does not preclude the adoption of reasonable standards intended to assure that temporary shelter is provided only to those who actually need it” (Callahan v Carey, 307 AD2d 150, 153 [1st Dept 2003] [Callahan 7], lv dismissed 100 NY2d 615 [2003]; see also McCain v Giuliani, 252 AD2d 461, 462 [1st Dept 1998], lv dismissed 93 NY2d 848 [1999] [addressing shelter eligibility, court determined that section 352.35 was “rationally related to (DSS’s) legitimate rulemaking objective of assuring that temporary housing resources are not squandered on those having no real need of them and to the related, equally legitimate objective of attempting to reduce prospective reliance upon temporary housing provided at public expense”]).

In sum, the decision in Callahan I allowed the City defendants to implement the DSS regulations without modifying the decree.

As explained by the Deputy Commissioner of the New York City Department of Homeless Services (DHS), by the time Callahan I was decided in 2003, the 1981-era deficiencies in access to decent shelter which the decree was meant to fix had, in fact, been substantially remedied. This freed up DHS to focus on developing extensive programs—including one dubbed the “Client Responsibility” initiative—designed to “shift from managing homelessness to ending chronic homelessness altogether.” The sanction regime is an integral part of these programs.

DHS’s sanction notice is a two-page document, which includes at the top of the first page the sanction’s effective date (10 days after the shelter resident’s receipt of the notice), and states the reasons DHS is seeking eviction. The right and time (within 60 days of receipt) to ask for a fair hearing to contest eviction is described; further, the resident is informed that, if a hearing is requested before the sanction’s effective date, shelter will continue until OTDA’s decision after hearing. Page two of the notice includes a paragraph, labeled “LEGAL ASSISTANCE,” which advises the resident that free legal assistance may be available “by contacting [the] local Legal Aid Society or other legal advocate group.” The Legal Aid Society’s toll-free telephone number is listed, along with telephone numbers for the Urban Justice Center and Coalition for the Homeless.

In the spring of 2005, plaintiffs asked Supreme Court for an order directing DHS to furnish the Legal Aid Society with copies of sanction notices. Plaintiffs took the position that the notices were “records relevant to the enforcement and monitoring” of the consent decree to which the Legal Aid Society was promised “access” by paragraph 11. The Legal Aid Society’s receipt of the notices, plaintiffs argued, would protect homeless individuals from erroneous eviction, thereby safeguarding their right under the decree to shelter. The City defendants countered that the decree governed the capacity and physical conditions of the City’s shelters, not individual sanction determinations. In addition, they contended, the Appellate Division had effectively decided against plaintiffs’ access to sanction notices in Callahan I, which rejected the notion that DSS’s regulations affected rights guaranteed the homeless by the decree.

On November 8, 2006, Supreme Court issued a decision granting plaintiffs’ motion on the ground that the consent decree required the City defendants to provide the sanction notices to the Legal Aid Society “when issued” to shelter residents (13 Misc 3d 1241 [A], 2006 NY Slip Op 52203[U], *3). The court determined that the City defendants’ claim that paragraph 11 only committed them to furnish the Legal Aid Society with records relevant to the sufficiency and quality of shelter was “undercut” by other sections of the decree; specifically, paragraph 12, which “appears to relate to individuals, who when seeking or applying for shelter (as opposed to those whose shelter was being terminated), were denied it, and does not relate merely to the sufficiency and quality of shelter, but rather to the denial of shelter” (id.). Noting that the City defendants had “taken many commendable steps” to insure shelter for homeless individuals, Supreme Court additionally observed that “human error is inevitable and the risk of harm is too great to ignore in this population which contains many vulnerable individuals” (id.). The City defendants appealed.

The Appellate Division, with one Justice dissenting, reversed Supreme Court’s decision and order. In general, the majority declined to read paragraph 11 “so broadly as to impose an obligation on the City to provide sanction notices to the Legal Aid Society when residents are noticed” (Callahan v Carey, 53 AD3d 404, 405 [1st Dept 2008]), while the dissenting Justice considered such notices to be “relevant” to the decree’s enforcement within the meaning of paragraph 11. The Appellate Division subsequently granted plaintiffs’ motion for leave to appeal, asking us whether its order “which reversed the order of the Supreme Court, [was] properly made?” We now reverse, and so answer in the negative.

A consent decree “is in the nature of a contract” (see 19th St. Assoc. v State of New York, 79 NY2d 434, 442 [1992]), which we must interpret in light of its plain language. And here, paragraph 11 is broadly worded—it gives the Legal Aid Society “access to any records relevant to the enforcement and monitoring of [the] decree” (emphasis added). We simply cannot say that sanction notices are irrelevant to the City defendants’ compliance with their obligation under the decree to provide decent shelter for homeless adults. As the dissenting Justice in the Appellate Division pointed out, it is at least theoretically possible for the City defendants to evade the decree’s requirements through improper mass evictions. No one suggests that DHS has ever contemplated such a thing, but paragraph 11 specifies only that records must be “relevant” to enforcing and monitoring the City defendants’ commitments under the decree. This is not a high hurdle to clear. We also note that if, as the City defendants argue, they only undertook to supply plaintiffs with aggregate data relating to the sufficiency and quality of shelter, paragraphs 10 and 12 alone would seem to have been sufficient to fulfill this purpose. Instead, the parties also included the catchall language in paragraph 11.

The City does not complain that the provision of sanction notices to the Legal Aid Society imposes any administrative burden, or in any way goes beyond the “access” guaranteed by paragraph 11, which arguably might be granted in ways other than by copying the Legal Aid Society with notices simultaneously upon their issuance to recipients. Indeed, the City defendants concede that “[t]his dispute . . . might seem small.” They maintain, however, that the appeal “raises a larger question. A lawsuit settled 27 years ago with a consent judgment that resolved a different controversy should not be expanded into a vehicle for ongoing judicial oversight of other programmatic changes in the City’s adult shelters”; and “[t]he governments that signed the Decree assumed complex and expensive obligations, but did not agree to ongoing judicial oversight of other aspects of shelter operations.” While these pleas carry force, there are several responses. First, paragraph 11 only requires the City to make certain records available to the Legal Aid Society; it does not mandate “judicial oversight” of DHS’s implementation of its Client Responsibility initiative or section 352.35 of the regulations. Second, as already noted, the parties themselves—for reasons no doubt good and sufficient at the time—negotiated expansive language in paragraph 11. Finally, to the extent that the City defendants consider the consent decree to be outmoded and cumbersome, they may always seek to modify or terminate it as provided for by paragraph 19.

Accordingly, the order of the Appellate Division should be reversed, without costs, the order of Supreme Court reinstated, and the certified question answered in the negative.

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order reversed, etc.

      . The categories are (1) the number of men who applied for shelter at each central and satellite intake center; (2) the number of men provided shelter at each shelter facility or hotel; (3) the number of men denied shelter at each shelter facility or central or satellite intake center and the reason for the denial; (4) the number of men accepted for shelter at each central or satellite intake center who did not reach a shelter facility; and (5) the number of men provided transportation from each satellite intake center to a shelter facility.

      . In 1997, DSS was renamed the Department of Family Assistance, and its functions were transferred to two autonomous offices (see L 1997, ch 436, part B, § 122 [a]), one of which—the Office of Temporary and Disability Assistance (OTDA)—regulates shelters for adults (id. § 122 [f]).

      . For example, the record discloses that in City Fiscal Year 2005, 5,892 single homeless men and women moved from shelters into long-term housing.

      . The City defendants agreed to provide the first five notices to the Legal Aid Society. After plaintiffs moved for the order at issue in this appeal, this practice continued, first by court request, then by interim court order. Between late 2003 until the record closed in this case in 2006, DHS apparently issued only 24 sanction notices.


author: Pigott, J.

text:
    [910 NE2d 422, 882 NYS2d 674]
    Severino Cunha et al., Plaintiffs, v City of New York, Defendant and Third-Party Plaintiff-Respondent. HAKS Engineers, P.C., Third-Party Defendant-Appellant.
    Argued April 30, 2009;
    decided June 9, 2009

      POINTS OF COUNSEL

      Milber Makris Plousadis & Seiden, LLP, White Plains (Michael A. Heran of counsel), for third-party defendant-appellant.
    I. The City of New York, by voluntarily conceding liability to plaintiff pursuant to Labor Law § 241 (6) without any determination having been made by a judge or jury that a violation occurred, classifying its liability as purely vicarious, and making a voluntary settlement payment to plaintiff to secure its release, cannot now recover 100% common-law indemnification from HAKS Engineers, EC., an engineering inspection firm adjudged to be only 40% at fault. (Glaser v Fortunoff of Westbury Corp., 71 NY2d 643; D'Ambrosio v City of New York, 55 NY2d 454; Oceanic Steam Nav. Co. [Ltd.] v Compania Transatlantica Espanola, 134 NY 461; Margolin v New York Life Ins. Co., 32 NY2d 149; Midura v 740 Corp., LLC, 31 AD3d 401; Sarmiento v Klar Realty Corp., 35 AD3d 834; McDermott v City of New York, 50 NY2d 211; Rosado v Proctor & Schwartz, 66 NY2d 21; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; McGurran v DiCanio Planned Dev. Corp., 251 AD2d 467.) II. At most, the City of New York established its entitlement to partial contractual indemnification for the 40% of damages that arose out of and/or were caused by HAKS Engineers, P.C.’s negligence. (Madeira v Affordable Hous. Found., Inc., 315 F Supp 2d 504, 469 F3d 219; Hooper Assoc. v AGS Computers, 74 NY2d 487; Vey v Port Auth. of N.Y. & N. J., 54 NY2d 221; Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888; Stern’s Dept. Stores, Inc. v Little Neck Dental, 11 AD3d 674; Mejia v Trustees of Net Realty Holding Trust, 304 AD2d 627; Sievert v Morlef Holding Co., 241 AD2d 445; Brooks v Judlau Contr., Inc., 11 NY3d 204.)

      Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Joel M. Simon of counsel), for defendant and third-party plaintiff-respondent.
    I. HAKS Engineers, P.C. must provide 100% indemnification to the City of New York. (People v Evans, 94 NY2d 499; Degliuomini v Degliuomini, 12 AD3d 634; Senf v Staubitz, 11 AD3d 997; George W. Collins, Inc. v Olsker-McLain Indus., 22 AD2d 485; Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Violette v Armonk Assoc., L.P., 849 F Supp 923; Coleman v City of New York, 91 NY2d 821; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Moshiri v Batista, 54 AD3d 738; Barry v Manglass, 55 NY2d 803.) II. The lower court should have granted the City of New York’s motion for a directed verdict seeking contractual indemnification against HAKS Engineers, P.C. (Moshiri v Batista, 54 AD3d 738; Barry v Manglass, 55 NY2d 803; Passantino v Consolidated Edison Co. of N.Y., 54 NY2d 840; Bingham v New York City Tr. Auth., 99 NY2d 355; Hageman v Santasiero, 277 AD2d 1049; Brooks v Judlau Contr., Inc., 11 NY3d 204.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff was injured while working on a roadway excavation in Brooklyn. The City of New York had hired plaintiff’s employer, JLJ Enterprises, Inc., as the prime contractor for the work and HAKS Engineers, EC. to perform engineering inspection services in connection with the project. The contract between the City and HAKS contained certain indemnification provisions.

On May 14, 2002, city employees, as well as inspectors from Verizon and Con Ed, who were present on the job site, had determined that because a trench had telephone and cable lines running through it, it could no longer be cleared by machinery. As a result, plaintiff was ordered by JLJ to go into the trench to dig by hand. Because the trench was not protected by any shoring or sheeting, it collapsed, causing injury to plaintiff.

On November 15, 2002, plaintiff and his wife commenced a personal injury action against the City, alleging violations of Labor Law §§ 200, 240 and/or 241. In turn, the City commenced a third-party action against HAKS seeking to recover on theories of contractual and common-law indemnification.

The City moved for summary judgment dismissing plaintiffs Labor Law § 200 claim as well as for judgment on its third-party claim for indemnification against HAKS. That motion was denied. Thereafter, further discovery was conducted and a trial date was scheduled.

Four days before trial, the City renewed its motion for summary judgment by order to show cause. By an order, dated April 3, 2006, Supreme Court granted in part the City’s motion, dismissing the Labor Law § 200 claim.

On the date trial was to commence on plaintiffs remaining Labor Law § 241 (6) cause of action, the parties indicated that a settlement agreement had been reached. The agreement provided that plaintiff was to receive $1.2 million, of which the City was to pay $800,000 and HAKS was to pay $400,000. The City conceded a violation of Labor Law § 241 (6) premised on a violation of Industrial Code (12 NYCRR) § 23-4.1 et seq. to wit: The shoring and trench where the accident occurred was greater than five feet and the trench collapsed causing injury to plaintiff.

Despite the settlement agreement, the City and HAKS disputed the issue of liability and apportionment between them and the case proceeded to trial on the third-party action. At the end of the trial, the jury was asked to answer three questions on the verdict sheet, namely (1) “Was the defendant [HAKS] negligent?”; if so, (2) “Was the negligence of the defendant [HAKS] a substantial factor in bringing about the accident?”; and (3) “What is the percentage of fault of: Defendant [HAKS]?” The City objected to the third question, arguing that the jury should not be asked to apportion liability.

The jury found HAKS negligent, that its negligence was a substantial factor in bringing about the accident, but that it was only 40% at fault for plaintiffs accident. The jury was not asked to, and did not, say where the other 60% of the fault lay.

After the jury was discharged, the City moved for a verdict to be directed against HAKS in total of 100% based on the contract indemnification clauses. The City argued that because it was only vicariously liable and had no active negligence, it was entitled to a directed verdict on indemnity. Supreme Court denied the motion. The City appealed.

The Appellate Division reversed on the law and remitted the matter to Supreme Court for an entry of an amended judgment conditionally in favor of the City and against HAKS in the amount of 100% of the damages recovered by plaintiffs from the City (45 AD3d 624 [2007]). As relevant to this appeal, the court held that because the City was only vicariously liable for violating the provisions of the Labor Law, it was entitled to full common-law indemnification from HAKS, the party actually responsible for the incident (id. at 626). Thus, the court held that it was error for the jury to be instructed to allocate fault (id.). It concluded that “[s]ince the jury found that [HAKS] was negligent, and that finding has not been appealed, the judgment must be reversed and an amended judgment must be entered awarding the [City] full common-law indemnification against [HAKS] for the amount of its settlement with the plaintiffs” (id.).

The same panel denied HAKS’ motion to reargue or for leave to appeal to this Court. We granted leave to appeal (11 NY3d 709 [2008]) and now affirm.

This Court has recognized that an owner held strictly liable under the Labor Law is entitled to “full indemnification from the party wholly at fault” (Chapel v Mitchell, 84 NY2d 345, 347 [1994]). While the duty imposed by section 241 may not be delegated, the burden may be shifted to the party actually responsible for the accident, either by way of a claim for apportionment of damages, or by contractual language requiring indemnification (see Allen v Cloutier Constr. Corp., 44 NY2d 290, 301 [1978]).

We disagree with HAKS that common-law indemnity does not lie because the City was never held to be vicariously liable to plaintiff by a judgment of the court. The fact that the City voluntarily elected to concede liability on the Labor Law § 241 (6) claim should not preclude an indemnification claim. Assuming, as HAKS contends, that the City had the burden of proving its own vicarious liability as an element of its third-party claim against HAKS, the City produced sufficient evidence to meet that burden. And assuming that HAKS was entitled to a jury ruling on the issue of whether the City was vicariously liable to plaintiff, it waived that right by not asking that the issue be submitted to the jury.

Further, it is well settled that a party may settle and then seek indemnification from the party responsible for the wrongdoing as long as the settling party shows that it may not be held liable in any degree (see Rosado v Proctor & Schwartz, 66 NY2d 21 [1985]). Here, the issue of the City’s active negligence was already determined by the order of the Supreme Court dated April 3, 2006, which dismissed plaintiff’s Labor Law § 200 claim against the City. Moreover, during trial, HAKS conceded that the City’s active negligence was not at issue; it neither objected to nor disagreed with the court’s position that the City did not have any negligence and that its only responsibility was pursuant to Labor Law § 241 (6).

HAKS also raises the issue of the potential liability of other parties and relies on our recent decision in Frank v Meadowlakes Dev. Corp. (6 NY3d 687 [2006]) for the proposition that the City is entitled to only partial indemnification from HAKS. In Frank, we held that CPLR article 16 limited the amount that can be recovered in indemnity when a tortfeasor’s liability is 50% or less. In that case, the injured plaintiff sued the owner of the job site, Meadowlakes, and the general contractor, D.J.H. Enterprises, Inc. (DJH). Meadowlakes thereafter brought a third-party action for indemnification against plaintiff’s employer, Home Insulation and Supply, Inc. (Home). Since the claim arose before the 1996 amendment to Workers’ Compensation Law § 11, Home was not immune from third-party liability. After a trial, the jury apportioned fault in the amount of 10% to plaintiff, 10% to Home and 80% to DJH. The court also directed a verdict against Meadowlakes and DJH based upon a violation of Labor Law § 240 (1). Plaintiff settled with Meadowlakes for $1.4 million and with DJH for $300,000.

Meadowlakes moved for common-law indemnification against Home for 100% of its settlement liability. Home appealed arguing, as relevant to this appeal, that because it was found only 10% at fault, it should be liable to Meadowlakes for only its proportionate share of negligence. We agreed, finding that Meadowlakes was not entitled to 100% recovery. In doing so, we held that the savings provision of CPLR 1602 (2) (ii) applied and that recovery from Home, as a party found 10% liable, was limited to its proportionate share with respect to noneconomic damages.

This case differs from Frank, however, in that no article 16 issue exists inasmuch as no other tortfeasor could be found liable for plaintiff’s injuries. HAKS argues that the jury must have found another entity liable as it apportioned only 40% fault to HAKS. This argument is flawed.

A likely interpretation of the jury’s verdict is that the jury allocated culpability to plaintiffs employer, JLJ—but JLJ’s fault was irrelevant and should not have been before the jury. Plaintiff did not sustain a grave injury and thus his employer was not subject to being part of the action (see Workers’ Compensation Law § 11; CPLR 1601 [1]). To the extent the jury may have considered plaintiff himself at fault, his negligence must be excluded because he, like JLJ, cannot be an indemnitor (see Frank, 6 NY3d at 693). It is unlikely that the jury allocated active fault to the City; to the extent the verdict is unclear on that issue, the burden was on HAKS to clarify it, by proposing an appropriate question to the jury.

Moreover, no apportionment for any other third party was requested by HAKS at any time during the proceedings. No evidence was submitted at trial that any other entity was negligent, nor could have any other entity been found negligent based upon the instructions provided to the jury, the verdict sheet, or the charge provided to the jury. Consequently, once HAKS was found to be negligent—and since HAKS was the only possible negligent party to the lawsuit—the City was entitled to 100% indemnification from HAKS.

Because we find that the City prevails on its common-law indemnification cause of action against HAKS, we need not address its contractual indemnification claim.

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

Chief Judge Lippman and Judges Ciparick, Grapfeo, Read, Smith and Jones concur.

Order affirmed, with costs.

       The Labor Law § 240 claim was previously withdrawn.