author: Read, J.

text:
    [863 NE2d 100, 831 NYS2d 96]
    In the Matter of E.S., Respondent, v P.D., Appellant.
    Argued January 3, 2007;
    decided February 15, 2007

      POINTS OF COUNSEL

      William V O’Leary, Albany, for appellant.
    I. Section 72 of the Domestic Relations Law is unconstitutional. (People ex rel. Sisson v Sisson, 271 NY 285; Troxel v Granville, 530 US 57; Reno v Flores, 507 US 292; Meyer v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; Prince v Massachusetts, 321 US 158; M. L. B. v S. L. J., 519 US 102; Parham v J.R., 442 US 584; Hodgson v Minnesota, 497 US 417; Stanley v Illinois, 405 US 645.) II. The grandmother’s application should have been dismissed as she was not denied visitation. (Troxel v Granville,
      530 US 57; Matter of David M. v Lisa M., 207 AD2d 623; Matter of Hertz v Hertz, 291 AD2d 91.) III. The grandmother’s application should have been denied as it was in reality a request for visitation on behalf of parties who were without standing. (Matter of Fitzpatrick v Youngs, 186 Misc 2d 344.) IV. The lower courts ignored or misapplied this Court’s holdings that family dysfunction and animosity constitute grounds to deny grandparent visitation. (Matter of Doe v Smith, 156 Misc 2d 942; Matter of Wilson v McGlinchey, 2 NY3d 375; Matter of DiBerardino v DiBerardino, 229 AD2d 539; Matter of Gloria R. v Alfred R., 209 AD2d 179; Meiselman v Crown Hgts. Hosp., 285 NY 389; People ex rel. Sibley v Sheppard, 54 NY2d 320; Matter of Coulter v Barber, 214 AD2d 195; Matter of Smith v Jones, 155 Misc 2d 254; Matter of Tropea v Tropea, 87 NY2d 727.) V. The scope and unfettered nature of the grandmother’s visitation is both excessive and contrary to the child’s best interest.

      Thomas K. Campagna, EC., Ronkonkoma (Thomas K. Campagna of counsel), for respondent.
    I. Section 72 of the Domestic Relations Law is constitutional. (Matter of Jonee, 181 Misc 2d 822; Moore v East Cleveland, 431 US 494; Rivera v Marcus, 696 F2d 1016; Harley v City of New York, 36 F Supp 2d 136; Parham v J.R., 442 US 584; Santosky v Kramer, 455 US 745; Matter of Principato v Lombardi, 19 AD3d 602; People ex rel. Sibley v Sheppard, 54 NY2d 320; Matter of Hertz v Hertz, 291 AD2d 91; Matter of Emanuel S. v Joseph E., 78 NY2d 178.) II. The grandmother properly petitioned the court for visitation. (Matter of Emanuel S. v Joseph E., 78 NY2d 178; Matter of Principato v Lombardi, 19 AD3d 602.) III. The grandmother properly petitioned the court on behalf of herself. IV. The court correctly granted visitation based upon the lack of family dysfunction and animosity. (Matter of Doe v Smith, 156 Misc 2d 942; Matter of Wilson v McGlinchey, 2 NY3d 375; Matter of DiBerardino v DiBerardino, 229 AD2d 539; Matter of Principato v Lombardi, 19 AD3d 602; Lo Presti v Lo Presti, 40 NY2d 522.) V. The scope and nature of the visitation are within the child’s best interests.

      Robert D. Gallo, Sayville, and Judy Poznik, Law Guardians.
    I. Section 72 of the Domestic Relations Law is constitutional per se and as applied. (Troxel v Granville, 530 US 57; Matter of Hertz v Hertz, 291 AD2d 91; Matter of Morgan v Grzesik, 287 AD2d 150; Matter of Ehrlich v Ressner, 55 AD2d 953; United States v Salerno, 481 US 739; Matter of Van Berkel v Power, 16 NY2d 37; People v Barber, 289 NY 378; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Davis v Davis, 188 Misc 2d 81;
      Washington v Glucksberg, 521 US 702.) II. The Appellate Division did not abuse its discretion in ordering grandparent visitation after inquiry into all of the relevant facts. (Matter of Emanuel S. v Joseph E., 78 NY2d 178; Matter of Wilson v McGlinchey, 2 NY3d 375; Matter of Weis v Rivera, 29 AD3d 812; Matter of Principato v Lombardi, 19 AD3d 602; Matter of Eggleton v Clark, 11 AD3d 459; People ex rel. Sibley v Sheppard, 54 NY2d 320; Matter of Follum v Follum, 302 AD2d 861; Matter of Kenyon v Kenyon, 251 AD2d 763; Matter of Coulter v Barber, 214 AD2d 195; Matter of Smith v Jones, 155 Misc 2d 254.) III. The death of the child’s mother provided the maternal grandmother with automatic standing. (Matter of Emanuel S. v Joseph E., 78 NY2d 178; Matter of Weis v Rivera, 29 AD3d 812; Matter of Principato v Lombardi, 19 AD3d 602; Matter of Eggleton v Clark, 11 AD3d 459.) IV The extraordinary relationship between the grandparent and grandchild justifies unfettered, substantial and regular visitation.

      Andrew Cuomo, Attorney General, Albany (Nancy A. Spiegel, Caitlin J. Halligan, Daniel Smirlock and Patrick J. Walsh of counsel), amicus curiae.
    Because Domestic Relations Law § 72 (1) is narrowly drawn to further a legitimate state interest and gives due deference to the wishes of fit parents concerning the care and custody of their children, it is constitutional. (United States v Salerno, 481 US 739; Matter of Moran Towing Corp. v Urbach, 99 NY2d 443; People v Stuart, 100 NY2d 412; Matter of Van Berkel v Power, 16 NY2d 37; Troxel v Granville, 530 US 57; Matter of Hertz v Hertz, 291 AD2d 91; Matter of Morgan v Grzesik, 287 AD2d 150; Matter of Wilson v McGlinchey, 2 NY3d 375; Matter of David M. v Lisa M., 207 AD2d 623; Matter of Hantman v Heller, 213 AD2d 637.)
   OPINION OF THE COURT

Read, J.

We are asked to decide whether the grandparent in this case was properly granted visitation with her grandson pursuant to section 72 (1) of the Domestic Relations Law, and, if so, whether this provision is constitutional in view of the United States Supreme Court’s decision in Troxel v Granville (530 US 57 [2000]). For the reasons that follow, we conclude that section 72 (1) was followed here, and is constitutional, both on its face and as applied.

I.

A.D. (mother) married ED. (father) in 1992; their son C.D. was born in November 1993. In June 1997, A.D. was diagnosed with cancer of the breast and spine. A.D.’s mother E.S. (grandmother), who lived in East Hampton, Long Island, was asked to move into the marital home in Huntington to care for her terminally ill daughter and the child. Grandmother cleaned the house, shopped, cooked household meals and looked after the child when A.D.’s illness prevented her from doing so.

After A.D.’s death in March 1998, father invited grandmother to stay on to help out with the then-four-year-old child’s care and household duties. Grandmother agreed, and father, grandmother and the child lived together amicably in the Huntington home for the ensuing 3V2 years. During that time, grandmother comforted, supported and cared for the motherless child. She got him ready for school, put him to bed, read with him, helped him with his homework, cooked his meals, laundered his clothes and drove him to school and to doctor’s appointments and various activities, including gym class, karate class, bowling, soccer, Little League baseball and swimming class. She arranged and transported him to away-from-home or supervised at-home play dates; she took him to the public library and introduced him to the game of chess. From 1998 through 2001, the child and father spent entire summers at grandmother’s home in East Hampton, where the child’s maternal first cousins and other family members were frequently present as well.

By the fall of 2001, the relationship between grandmother and father had begun to sour. The reasons for this are disputed, but father and grandmother apparently differed over such matters as how to handle the child’s sometime unwillingness to eat the food prepared for him at mealtime, and how strictly to enforce his bedtime, his tooth brushing regimen, homework routines and the like. In general, grandmother seems to have been more indulgent than father, who consequently came to view her as sabotaging his parental authority and competing with him for control over the household and, more importantly, the child. On February 24, 2002 father demanded that grandmother move out of the Huntington home immediately. Grandmother claims to have been completely surprised by this turn of events. She strenuously objected to leaving without at least saying goodbye to the child, who was away on a play date at the time, but she ultimately bowed to father’s wishes and left with most of her belongings.

For the next seven or eight weeks, father forbade any contact between grandmother and the child. From April through December 2002, father allowed sporadic visits, which were limited in length and tightly supervised, and occasional telephone calls. According to grandmother, an incident in December 2002, when she experienced a four-hour wait for a scheduled visit with the child, was the “last straw.” She decided to seek judicial intervention, a decision that she characterizes as having been arrived at most reluctantly. Accordingly, in January 2003, grandmother, who was 78 years old at the time, commenced this proceeding pursuant to Domestic Relations Law § 72 and Family Court Act § 651 for an order granting reasonable visitation with the child, who was then nine years old. Father opposed grandmother’s request, and cross-moved for an order prohibiting grandmother from any contact whatsoever with the child.

Supreme Court appointed a law guardian for the child and conducted a lengthy, multi-day hearing. Among the numerous witnesses who testified were grandmother, father, his mother and stepmother, and two of the child’s former babysitters. Supreme Court also held an in camera interview with the child in the presence of the law guardian, and considered the law guardian’s report and recommendation. On December 1, 2004, Supreme Court granted judgment to grandmother, and ordered visitation according to a detailed schedule. Supreme Court concluded that

“[although mindful of [father]’s right to rear [the child] as he sees fit, and of his stated concern that [grandmother] undermines his parental authority, the Court finds that he has failed to present any credible evidence warranting either the termination of the relationship between [grandmother] and [the child] or the imposition of restrictions on the right of visitation. Instead, the evidence in the record establishes the existence of a very close, loving relationship between [grandmother] and [the child], and that [the child]’s best interest is served by granting [grandmother] regular, unfettered visitation” (6 Misc 3d 1030[A], 2004 NY Slip Op 51846[U], *15).

Upon father’s appeal, the Appellate Division affirmed Supreme Court’s judgment, but modified certain terms of the visitation schedule in deference to father’s wishes, relying on Troxel. In response to father’s constitutional challenge, the Appellate Division observed that

“[c]ontrary to the father’s contention, this Court has determined that New York State’s grandparent visitation statute, Domestic Relations Law § 72, is not facially invalid under [Troxel] even though it does not specifically require that parental decisions are to be given ‘special weight.’ Our visitation statute, narrowly drafted to only afford a grandparent standing to sue for visitation when a child’s parent has died or where ‘conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72) and additionally requiring that after standing has been conferred, that the grandparent establish why visitation is in the child’s best interest, necessarily gives the parent’s decision presumptive weight” (27 AD3d 757, 758-759 [2d Dept 2006] [citations omitted]).

The Appellate Division further rejected father’s argument that Supreme Court abused its discretion in awarding visitation to grandmother.

II.

Section 72 (1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to [supreme or family court] and . . . the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72 (1) derogates from the common-law rule that “grandparents [have] no standing to assert rights of visitation against a custodial parent” (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 180 [1991]). The statute “rests on the humanitarian concern that [v]isits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild . . . which he cannot derive from any other relationship” (id. at 181 [internal quotation marks and citations omitted]).

Section 72 (1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild” (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72 (1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild” (Matter of Emanuel S., 78 NY2d at 181).

But the courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]).

Here, grandmother has automatic standing under section 72 (1) on account of A.D.’s death. Further, record evidence supports the determination of the courts below that visitation between grandmother and the child is in the child’s best interest. The father in this case is a competent parent, and Supreme Court was therefore properly “mindful” in the first instance of his right to rear the child as he saw fit. Supreme Court determined, however, that grandmother established “an extraordinarily close relationship [with the child] during the nearly five-year period that she lived with him and [father]” (6 Misc 3d 1030[A], 2004 NY Slip Op 51846[U], *14). Further, grandmother “clearly appreciate[d] and respect[ed] the separate roles that she and [father] play[ed] in [the child’s] life, and wishe[d] to improve her relationship with [father] for the sake of [the child],” and there was “no credible evidence in the record substantiating [father’s] claim that [grandmother] [sought] to usurp his role as [the child’s] parent” (id.). Supreme Court also found that father’s complaints about grandmother’s caregiving skills were “contrived” and his claims of ill will exaggerated and “tailored to raise the specter of family dysfunction” (id.). Supreme Court agreed with the law guardian’s “determination that the relationship with [grandmother] [was] central to [the child’s] well[-]being,” and noted that the child, who is gifted, had “articulated a deep love for and attachment to” grandmother (id.). The Appellate Division affirmed the trial court’s findings of fact, and we may not revisit them (see Karger, Powers of the New York Court of Appeals § 13:10, at 489 [rev 3d ed] [“(F)indings of fact made by the nisi prius court which have been expressly affirmed by the Appellate Division and have the requisite evidentiary support are . . . conclusive and binding on the Court”]). In light of these factual findings, there is no reason to disturb the best-interest determination in this case. There was no abuse of discretion; the courts below correctly applied section 72 (1).

III.

Father contends that Domestic Relations Law § 72 (1) is facially unconstitutional in light of Troxel. “A party mounting a facial constitutional challenge bears the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment” (Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003] [internal quotation marks and citation omitted]). Moreover, the challenger “must surmount the presumption of constitutionality accorded to legislative enactments by proof beyond a reasonable doubt” (id. at 448 [internal quotation marks and citation omitted]).

The Washington statute at issue in Troxel permitted “ ‘[a]ny person’ to petition [the trial court] for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child’ ” (Troxel, 530 US at 60, quoting Wash Rev Code § 26.10.160 [3]). In Troxel, paternal grandparents petitioned for visitation with their grandchildren pursuant to this statute. The mother did not oppose all visitation, but sought to limit it. The trial court awarded visitation to the grandparents, “settling] on a middle ground” between what the grandparents requested and the mother offered (Troxel at 71). The intermediate appeals court reversed on statutory grounds and dismissed the petition. The Washington Supreme Court then affirmed on a different ground — that the statute was facially invalid under the Federal Constitution because it unconstitutionally infringed on the fundamental right of parents to rear their children.

The Supreme Court affirmed the petition’s dismissal, while declining to hold the Washington statute unconstitutional on its face. Justice O’Connor’s plurality opinion held, however, that “the application of [the statute] to [the mother] and her family violated [the mother’s] due process right to make decisions concerning the care, custody, and control of her daughters” {id. at 75). The plurality considered it critical that there were no allegations or findings of the mother’s unfitness as a parent because

“so long as a parent adequately cares for his or her children {i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children” {id. at 68-69).

As a result,

“the decision whether ... an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination” {id. at 70 [emphasis added]).

The problem in Troxel was therefore not that the trial court intervened, but that it failed to employ “the traditional presumption that a fit parent will act in the best interest of his or her child” when it did {id. at 69). On the contrary, the trial court effectively applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children (id.).

Reasoning from Troxel, we conclude that section 72 (1) is facially constitutional. As Justice Altman aptly put it, section 72 (D

“can be, and has been, interpreted to accord deference to a parent’s decision, although the statute itself does not specifically require such deference. Further, [section 72 (1)] is drafted much more narrowly than the Washington statute [considered in Troxel]. If the United States Supreme Court did not declare the ‘breathtakingly broad’ Washington statute to be facially invalid, then certainly the more narrowly drafted New York statute is not unconstitutional on its face. In fact, the Court indicated that it would be hesitant to hold specific nonparental visitation statutes unconstitutional per se because ‘much state-court adjudication in this context occurs on a case-by-case basis.’ Troxel does not prohibit judicial intervention when a fit parent refuses visitation, but only requires that a court accord ‘some special weight to the parent’s own determination’ when applying a nonparental visitation statute” (Matter of Hertz v Hertz, 291 AD2d 91, 94 [2d Dept 2002] [citations omitted]; see also Matter of Morgan v Grzesik, 287 AD2d 150 [4th Dept 2001]).

Courts in other states have likewise read their grandparent visitation statutes to encompass the constitutional protections necessary to safeguard parental rights (see Hiller v Fausey, 588 Pa 342, 361-363, 904 A2d 875, 887-888 [2006]; In re Estate of S.T.T., 144 P3d 1083, 1093 [Utah 2006]; Blixt v Blixt, 437 Mass 649, 657-658, 774 NE2d 1052, 1060 [2002]). Indeed, the plurality’s decision in Troxel seemed to suggest that the Washington Supreme Court might have similarly chosen to interpret its statute more narrowly.

Finally, father also argues that section 72 (1) was unconstitutionally applied in this case. We disagree. Unlike Troxel, the trial court here did not presuppose that grandparent visitation was warranted as the jumping-off point for fact-finding and best-interest analysis. Instead, the court, emphasizing that it was “mindful” of father’s parental prerogatives, employed the strong presumption that the parent’s wishes represent the child’s best interests, as our statute requires (see Troxel, 530 US at 69). While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue — e.g., the reasonableness of father’s objections to grandmother’s access to the child, her caregiving skills and attitude toward father, the law guardian’s assessment, the child’s wishes — before making a judgment granting visitation.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

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

Order, insofar as appealed from, affirmed, with costs.


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [863 NE2d 994, 831 NYS2d 742]
    Appalachian Insurance Company, Respondent, v General Electric Company, Appellant, and Riunione Adriatica DiSicurta, Also Known as Adriatic Insurance Company et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Argued January 9, 2007;
    decided February 15, 2007

      POINTS OF COUNSEL

      Cleary Gottlieb Steen & Hamilton LLP, New York City (Evan A. Davis, Jonathan T. Salomon and Brendan H. Gibbon of counsel), Pillsbury Winthrop Shaw Pittman LLP (E. Leo Milonas, David G. Keyko, Frederick A. Brodie and Laura L. Smith of counsel), McCarter & English, LLP (Gita F. Rothschild, R. Nicholas Gimbel and Andrew T. Berry of counsel), Thomas H. Hill, Fairfield, Connecticut, Jonathan M. Goodman and Buckmaster De Wolf, for appellant.
    I. The policies require that the “occurrence” is the injury-causing event that allegedly establishes liability — in other words, the conduct of the policyholder. (Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; Matter of Covert, 97 NY2d 68; Sharon Steel Corp. v Chase Manhattan Bank, N.A., 691 F2d 1039; Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; Hartford Fire Ins. Co. v St. Paul Surplus Lines Ins. Co., 280 F3d 744.) II. New York and the majority of other courts fix the “occurrence” by looking to the injury-causing event that allegedly establishes liability — in other words, the conduct of the policyholder. (Arthur

      A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169; Endicott Johnson Corp. v Liberty Mut. Ins. Co., 928 F Supp 176; Allied Grand Doll Mfg. Co. v Globe Indem. Co., 15 AD2d 901; Miano v Hehn, 206 AD2d 957; Aguirre v City of New York, 214 AD2d 692; Safeguard Ins. Co. v Angel Guardian Home, 946 F Supp 221; World Trade Ctr. Props., L.L.C. v Hartford Fire Ins. Co., 345 F3d 154; Newmont Mines Ltd. v Hanover Ins. Co., 784 F2d 127; Champion Intl. Corp. v Continental Cas. Co., 546 F2d 502.) III. The lower courts’ focus on the claimant’s exposure has no support in General Electric Company’s policies or under New York law. (Colonial Gas Co. v Aetna Cas. & Sur. Co., 823 F Supp 975; Chemstar, Inc. v Liberty Mut. Ins. Co., 797 F Supp 1541; Rothstein v Tennessee Gas Pipeline Co., 87 NY2d 90; Thornton v Roosevelt Hosp., 47 NY2d 780; Schmidt v Merchants Despatch Transp. Co., 270 NY 287; Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; Liberty Mut. Ins. Co. v Treesdale, Inc., 418 F3d 330; In re Prudential Lines Inc., 158 F3d 65; Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222.) IV. Finding a single “occurrence” is necessary to fulfill the reasonable expectations of the policyholder. (General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390; Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222; Newmont Mines Ltd. v Hanover Ins. Co., 784 F2d 127; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; In re Northern Dist. of Cal. Dalkon Shield IUD Prods. Liab. Litig., 526 F Supp 887, 693 F2d 847; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368.) V. The courts below improperly relied on disputed facts. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Kenyon v Security Ins. Co. of Hartford [DPIC Cos.], 163 Misc 2d 991; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178; Champion Intl. Corp. v Continental Cas. Co., 546 F2d 502.)

      Wachtell, Lipton, Rosen & Katz, New York City {Herbert M. Wachtell, Ben M. Germana and Carrie M. Reilly of counsel), Skadden, Arps, Slate, Meagher & Flom LLP, New York City {Michael J. Batch of counsel), Bonner Kiernan Trebach & Crociata, LLP {Alexander H. Gillespie of counsel), Hardin, Kundla, McKeon & Poletto {George R. Hardin and John S. Favate of counsel), Rivkin Radler LLP, Summit, New Jersey {Brian R. Ade of counsel), and Landman Corsi Ballaine & Ford, PC, New York City (Michael L. Gioia of counsel), for plaintiff and certain respondents.
    I. The courts below correctly ruled that each asbestos claimant’s exposure to a General Electric Company-manufactured turbine constitutes a separate “occurrence.” (Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222; Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178; Travelers Cas. & Sur. Co. v Certain Underwriters at Lloyd’s of London, 96 NY2d 583; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; National Union Fire Ins. Co. of Pittsburgh, Pa. v Stroh Cos., Inc., 265 F3d 97; Bird v St. Paul Fire & Mar. Ins. Co., 224 NY 47; Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008; Home Ins. Co. v American Ins. Co., 147 AD2d 353; Pan Am. World Airways, Inc. v Aetna Cas. & Sur. Co., 505 F2d 989.) II. General Electric Company’s alleged failure to warn does not constitute a single “unfortunate event.” (Amatulli v Delhi Constr. Corp., 77 NY2d 525; Voss v Black & Decker Mfg. Co., 59 NY2d 102; Sage v Fairchild-Swearingen Corp., 70 NY2d 579; McCarthy v Olin Corp., 119 F3d 148; Liriano v Hobart Corp., 92 NY2d 232; Colon ex rel. Molina v BIC USA, Inc., 199 F Supp 2d 53; Santoro v Donnelly, 340 F Supp 2d 464; Codling v Paglia, 32 NY2d 330; In re Joint E. & S. Dists. Asbestos Litig., 762 F Supp 519; Palsgraf v Long Is. R.R. Co., 248 NY 339.) III. The lower courts’ holdings that each claimant’s exposure to a General Electric Company-manufactured turbine is a separate “occurrence” plainly comport with the parties’ “reasonable expectations.” (Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; In re Prudential Lines, Inc., 158 F3d 65; Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 7 NY2d 222; Allied Grand Doll Mfg. Co. v Globe Indem. Co., 15 AD2d 901.) IV The courts below did not make any improper findings of material fact. (Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; National Union Fire Ins. Co. of Pittsburgh, Pa. v Stroh Cos., Inc., 265 F3d 97; Sam v Town of Rotterdam, 248 AD2d 850; Claus v John Hancock Mut. Life Ins. Co., 254 AD2d 102.)

      Mendes & Mount, LLP, New York City (Thomas J. Quinn, Eileen T. McCabe and Stephen T. Roberts of counsel), for Certain Underwriters at Lloyd’s, London, amici curiae.
    I. The policies require that the injury on which liability is predicated take place during the policy period. (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; American Motorists Ins. Co. v Squibb & Sons, 95 Misc 2d 222; Schmidt v Merchants Despatch Transp. Co., 270 NY 287; Arthur A. Johnson Corp. v Indemnity

      Ins. Co. of N. Am., 7 NY2d 222; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169; Champion Intl. Corp. v Continental Cas. Co., 546 F2d 502; Flintkote Co. v General Acc. Assur. Co., 410 F Supp 2d 875; Allied Grand Doll Mfg. Co. v Globe Indem. Co., 15 AD2d 901; In re Prudential Lines, 158 F3d 65; Aguirre v City of New York, 214 AD2d 692.) II. The reasonable expectation test is an objective one. (Little v Blue Cross of W. N.Y., 72 AD2d 200; Zuckerberg v Blue Cross & Blue Shield of Greater N.Y., 108 AD2d 56, 67 NY2d 688; Halper v Aetna Life Ins. Co. of Hartford, Conn., 42 Misc 2d 184, 44 Misc 2d 437, 24 AD2d 703, 17 NY2d 484; Moshiko, Inc. v Seiger & Smith, 137 AD2d 170, 72 NY2d 945; Baker v Nationwide Mut. Ins. Co., 158 AD2d 794; Metzger v Aetna Ins. Co., 227 NY 411; AMBAC Indem. Corp. v Bankers Trust Co., 145 Misc 2d 52; Commercial Union Ins. Co. v Lines, 239 F Supp 2d 351, 378 F3d 204; Champion Intl. Corp. v Continental Cas. Co., 546 F2d 502.)
   OPINION OF THE COURT

Graffeo, J.

In this declaratory judgment action, we must determine whether, for purposes of exceeding annual “per occurrence” primary insurance policy limits to access excess insurance proceeds, defendant General Electric Company (GE) can group together as a single occurrence numerous personal injury claims arising from the exposure of individuals to asbestos insulation in GE turbines at work sites across the country. We agree with the courts below that, under the terms of the GE primary insurance policies, the claims present multiple occurrences.

In this case, GE seeks to obtain excess insurance coverage for asbestos-related personal injury claims brought by individuals who, between 1966 and 1986, were exposed to asbestos-containing insulation used in steam turbines manufactured by GE and installed at more than 22,000 sites throughout the United States. Although GE did not produce the asbestos-related products, for decades it designed, manufactured and, in some cases, installed custom turbines that were insulated with asbestos-containing products manufactured by others. In the typical personal injury case, a plaintiff sued GE on the theory that, with knowledge of the dangers of exposure to asbestos-containing products, it designed, manufactured, sold, installed and/or serviced turbines insulated with asbestos, without warning individuals working near its turbines of those dangers. Of all the asbestos exposure claims filed against GE, 95% arose from GE’s turbine business.

Ordinarily, GE is only one of many defendants sued in an asbestos exposure case, with the manufacturers of the asbestos-containing insulation products, installation contractors and others also joined on various theories. As a result, GE’s portion of a settlement or verdict in individual cases has been relatively small: as of 2002, over 400,000 asbestos-related claims had been filed against GE, with GE’s share of each judgment averaging $1,500. In the early 1990s, an escalation in the number of asbestos-related personal injury claims filed against GE led to this dispute between GE and its excess insurers over the treatment of asbestos-related personal injury claims under GE’s primary general liability insurance policies in effect between 1966 and 1986.

From the 1950s to the 1990s, GE maintained general liability insurance with Electric Mutual Liability Insurance Company (EMLICO), an entity partially owned by GE and its employees. Annual premiums under the policies were calculated through a complicated formula that provided for retrospective payment by GE of a sum that was largely based on prior years’ losses. Thus, the premium structure functioned much like a self-insurance retention or a deductible, with GE reimbursing EMLICO for claims EMLICO paid on GE’s behalf.

Before 1966, the EMLICO policies contained a $5 million per-occurrence liability limit and a $10 million aggregate liability limit. From 1966 through 1986, the EMLICO policies retained a $5 million per-occurrence limit (with the exception of the 1986 policy year, which had a $25 million per-occurrence limit) but did not incorporate an aggregate liability limit. Under the retrospective premium formula, GE was generally required to compensate EMLICO for the payout related to each occurrence under $5 million, regardless of the annual number or combined dollar value of the claims.

During the 1966-1986 time frame, GE also maintained excess liability insurance that supplied additional layers of coverage beyond the EMLICO limits. Most of GE’s first and second layer general liability excess coverage policies were through Certain Underwriters at Lloyd’s, London or the London Market Insurers (London). The excess insurers involved in this litigation subscribed to manuscript policies for the excess coverage over EMLICO and, in most cases, the London policies. In this 20-year period, none of these excess insurance policies covered any claim that was less than the $5 million per-occurrence coverage supplied by EMLICO. All of the excess insurance policies contained the following loss payable provision: “[l]iability under this policy with respect to any occurrence shall not attach unless and until the Insured, or the Insured’s underlying insurer, shall have paid the amount of the underlying limits on account of such occurrence.” As such, excess coverage for a claim was triggered only when the claim exceeded the $5 million per-occurrence limit in the underlying EMLICO primary general liability policy.

The EMLICO policies define an occurrence as “an accident, event, happening or continuous or repeated exposure to conditions which unintentionally results in injury or damage during the policy period.” Until 1992, EMLICO treated each asbestos-related personal injury claim brought by an injured individual who alleged exposure during the relevant 20-year time frame as a separate “occurrence.” Because of the retrospective premium structure, the fact that none of the claims exceeded $5 million and the absence of aggregate liability limits, the full cost of each claim was ultimately borne by GE.

The number of asbestos-related claims substantially increased in 1991, causing GE to object to EMLICO’s practice of treating each individual claim as a distinct “occurrence.” After negotiation, and without the participation of any of GE’s excess insurers, GE and EMLICO entered into a “Claims Handling Agreement” that required EMLICO to group asbestos-related personal injury claims by product type, meaning that all claims associated with a single product— here, turbines — would constitute a single occurrence with a $5 million annual coverage limit. The agreement therefore allowed GE to combine claims to reach the $5 million per-occurrence general liability policy ceiling, triggering access to GE’s excess insurance coverage.

GE’s resolution of its dispute with EMLICO created controversy between GE and its excess insurers because, by reducing the number of occurrences under the primary EMLICO policies, the agreement increased the number of instances when the $5 million per-occurrence threshold would be exceeded, significantly expanding the exposure of GE’s excess carriers. This litigation was commenced in 1996 when Allstate Insurance Company sued GE, EMLICO and numerous GE excess insurers, including Appalachian Insurance Company, seeking a declaration of the parties’ rights and responsibilities relating to GE asbestos claims. Although other concerns were raised, the main issue was the propriety of GE’s and EMLICO’s construction of the term “occurrence” in the EMLICO general liability policies. Appalachian answered the complaint, pursuing counterclaims against Allstate and cross claims against GE and EMLICO. Other excess insurers similarly joined the action. When Allstate settled with GE and EMLICO, Supreme Court substituted Appalachian for Allstate as the lead plaintiff.

After extensive discovery, Appalachian and other excess insurers moved for summary judgment requesting a declaration that GE’s primary policies had not been exhausted by the payment of the asbestos claims because each claim by an injured plaintiff represented a separate occurrence for purposes of the EMLICO policies and none of the claims came close to reaching the $5 million per-occurrence limit. GE opposed the motion and cross-moved for summary judgment and a judicial declaration that the asbestos litigation arising from GE’s turbine business was a single occurrence under each policy because all the claims could be traced to a single act of negligence — GE’s failure to warn of the dangers of exposure to asbestos insulation in its turbines. Because the excess insurers were not parties to the “Claims Handling Agreement,” GE acknowledged that they were not bound by the retroactive construction of the term “occurrence” in that agreement. The issue therefore distilled to one of contract interpretation: how the term “occurrence” in the 1966-1986 EMLICO policies should be interpreted in the asbestos exposure context.

Supreme Court granted the excess insurers’ motion and denied GE’s cross motion. Relying on our decision in Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am. (7 NY2d 222 [1959]), the court held that the focus should be on the event for which the insured is being held liable, not a point further back in the causal chain. Applying the “unfortunate event” test to the asbestos exposure claims, the court noted that the turbines were custom-designed based on the specific needs of GE customers, with little or no uniformity in the amounts or types of asbestos insulation incorporated in the design. Moreover, the exposure of the individual plaintiffs varied in duration and intensity and occurred over decades at more than 22,000 work sites throughout the nation. In sum, there was insufficient temporal and spatial proximity among the claims to unify them as one occurrence. The court concluded that the exposure of each plaintiff to asbestos-containing insulation was the unfortunate event for which GE was being held liable. It therefore declared that the excess insurers were not obligated to provide excess coverage for individual claims that did not exceed the annual $5 million per-occurrence limit in the EMLICO primary general liability policies.

The Appellate Division affirmed, reasoning that the operative occurrence under the definition in the EMLICO policies was the “last link in the causal chain leading to liability, i.e., the exposure of each individual claimant to asbestos contained in the turbines manufactured by the insured, rather than earlier events creating the potential for future injury” (19 AD3d 198 [2005]). This Court granted GE leave to appeal.

Under the excess insurance policies at issue here, GE is entitled to coverage only if the $5 million per-occurrence policy limit in the underlying EMLICO general liability policies is exceeded. The rights and liabilities of the excess insurers turn on the meaning of the term “occurrence” in the EMLICO policies.

Our Court has previously addressed the standard to be applied in resolving whether a set of circumstances amounts to one accident or occurrence, or multiple accidents or occurrences, for purposes of resolving how much coverage is available under a third-party liability insurance policy. In Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am. (7 NY2d at 227-229), we described the three approaches used by courts to resolve the question: the sole-proximate-cause approach, which focuses on whether the injuries or losses can be traced to a single, originating cause; the one-accident-per-person approach, which depends on the number of individual claimants seeking recovery; and the unfortunate-event approach, which is based not solely on the cause but on the nature of the incident giving rise to damages.

In Johnson, the issue was whether the collapse of two independent walls of adjoining buildings during an intense rainfall constituted one or two “accidents” for the purpose of determining whether the insured was entitled to coverage up to the “per-accident” liability limit for the breach of each wall. The Court adopted the unfortunate-event test and determined that there were two accidents, explaining:

“[W]e need only point out that it is agreed that, during a heavy rainfall, a protecting wall collapsed under the water pressure and destruction poured into a building. Almost an hour later, another wall gave way and water flooded another building. There is no suggestion that the collapse of the first wall caused the failure of the second ... In addition, the catastrophe was not the rain — that, in itself, did not harm. It was the breach of the wall letting the rain water in. Furthermore, if the walls were located blocks away from each other on different job sites but subject to the same rainfall, no one could contest that there were two accidents” {id. at 230).

In Hartford Acc. & Indent. Co. v Wesolowski (33 NY2d 169 [1973]), the Court found no significant difference between the meaning of “accident” in the Johnson policy and the meaning of “occurrence” in resolving the extent of coverage under a policy with a “per occurrence” limit. The issue in Wesolowski was described as follows: “Where the insured’s automobile struck one oncoming vehicle, ricocheted off and struck a second more than 100 feet away, was there more than one ‘occurrence’ within the meaning of the provision fixing limits of liability in an automobile insurance policy?” (Id. at 170.) Applying the Johnson unfortunate-event test, we held that the three-car collision amounted to a single occurrence because “the two collisions here occurred but an instant apart” and “[t]he continuum between the two impacts was unbroken, with no intervening agent or operative factor” (33 NY2d at 174).

From our decisions in Johnson and Wesolowski several factors emerge as relevant to distinguishing injuries or losses that arise from a single occurrence as opposed to those that constitute multiple occurrences: whether there is a close temporal and spatial relationship between the incidents giving rise to injury or loss, and whether the incidents can be viewed as part of the same causal continuum, without intervening agents or factors. Common causation is pertinent once the incident — the fulcrum of our analysis — is identified, but the cause should not be conflated with the incident. In Johnson, we concluded that there had been multiple accidents, noting that 50 minutes elapsed between the wall collapses and there was an insufficient causal nexus between the two incidents since there was “no suggestion that the collapse of the first wall caused the failure of the second” or that the walls shared similar deficiencies traced to a common cause as it was not even clear that the two walls had been built at the same time by the same workers (7 NY2d at 230). But in Wesolowski an analysis of all three factors persuaded us that there had been a single occurrence — the three cars collided seconds apart, in close spatial proximity and without disruption by intervening causes or other factors.

The insurance policies we interpreted in Johnson and Wesolowski did not specifically define the terms “accident” and “occurrence” and parties to an insurance contract remain free to include language articulating a different approach. The question we face here is whether GE and EMLICO did so in the EMBICO policies. Those policies defined an occurrence as “an accident, event, happening or continuous or repeated exposure to conditions which unintentionally results in injury or damage during the policy period.”

As GE points out, the policies under review were drafted after we decided Johnson, at a time when general liability policies were shifting from “accident” to “occurrence” based. “The insurance industry changed to occurrence-based coverage in 1966 to make clear that gradually occurring losses would be covered so long as they were not intentional” (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 648 [1993]). By encompassing “continuous or repeated exposure to conditions,” as well as the sudden events traditionally associated with an accident, the occurrence model more readily embraced a wider range of liabilities — such as liability arising from asbestos exposure or contamination.

But as is evident from our decision in Wesolowski, the transition from accident to occurrence coverage had no impact on the process of determining whether injuries or losses could be grouped for purposes of per-occurrence liability limits. With regard to this issue, the term occurrence is synonymous with accident unless the parties include language in the policy indicating otherwise. We see nothing in the definition of occurrence in the EMLICO policies that suggests that GE and EMLICO had any such intent. The Johnson unfortunate-event standard, set forth in 1959, predated the first of the series of policies in this case by more than five years. Certainly, these sophisticated parties could have chosen to define occurrence in a manner that grouped incidents based on the approaches rejected in Johnson (such as the sole-proximate-cause model or the single-occurrence-per-claimant model) or adopted yet another approach not envisioned by the Johnson court. But they did not do so. We therefore conclude that the unfortunate-event standard governs the outcome of this appeal.

Applying that standard, the asbestos exposure claims GE seeks to join as one occurrence (per policy period) represent multiple occurrences. Using the language adopted by the parties in the EMLICO policies, the incident that gave rise to liability was each individual plaintiffs “continuous or repeated exposure” to asbestos. Before the exposures occurred, there was only the potential that some unidentified claimant would someday be harmed by GE’s alleged failure to warn. To be sure, the exposure to asbestos was not sudden — it was gradual and, for many plaintiffs, continued over a number of years. But that does not make it any less the operative incident or occasion giving rise to liability in this factual context.

Having determined that there were numerous exposure incidents, we must analyze the temporal and spatial relationships between the incidents and the extent to which they were part of an undisrupted continuum to determine whether they can, nonetheless, be viewed as a single unfortunate event — a single occurrence. Even if we were to assume that the continuum element was met here because the exposures share a common cause (as GE urges), the scenarios presented would fail the Johnson test because of the lack of any spatial or temporal relationship. On this record, it appears that the incidents share few, if any, commonalities, differing in terms of when and where exposure occurred, whether the exposure was prolonged and for how long, and whether one or more GE turbine sites was involved. Under the circumstances, there were unquestionably multiple occurrences and the excess insurers were entitled to a declaration to that effect.

In reaching this conclusion we emphasize that the Johnson standard is not, as GE suggests, the equivalent of a one-occurrence-per-injured-party approach. Although there may be instances when application of the rule will result in each individual claimant representing a single occurrence, the standard can lead to the grouping of claims as occurred in Wesolowski. Nor does the rule necessarily bar excess coverage in multi-plaintiff mass tort contexts. Each mass tort scenario must, be examined separately under the Johnson rule. There will undoubtedly be unfortunate occasions, such as a series of explosions, the accidental release of a hazardous substance or some other calamity, that will result in numerous injuries or losses. In those situations, the Johnson test may well allow the grouping of some or all of the claims for purposes of satisfying the per-occurrence limit, thereby triggering excess coverage.

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

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

Order affirmed, with costs.

      . Due to constitutional limitations on this Court’s jurisdiction over appeals from nonfinal orders, GE was granted leave to appeal only insofar as it sought relief against nine excess insurers for whom party-finality principles rendered the judgment final: Birmingham Fire Insurance Company of Pennsylvania, China America Insurance Company, Fremont Industrial Indemnity Company, Granite State Insurance Company, Insurance Company of the State of Pennsylvania, North River Insurance Company, Rampart Insurance Company, Riunione Adriatica DiSicurta and Starnet Insurance Company. GE was denied permission to appeal with respect to the claims involving Appalachian and 30 other excess insurers. As the lead plaintiff, Appalachian was permitted to brief and argue the appeal.

      . For example, with respect to the automobile accident at issue in Wesolowski, the cause of the accident (whether it was speeding, reckless driving or the like), though active at the moment of the collisions, is distinct from the incident itself, and it is the incident, not the cause, that is subjected to the Johnson standard (indeed, causation is a factor in the Johnson test). In this case, assuming the cause of plaintiffs’ injuries was a failure to warn as GE contends, that does not transform the cause into the event giving rise to liability for purposes of the per-occurrence limit. If we were to focus only on discerning the common originating cause of multiple events as GE urges, we would not be applying the unfortunate-event test but rather the sole-proximate-cause test that we explicitly rejected in Johnson.

      . There are many ways that parties to an insurance contract can provide for the grouping of claims. Some liability policies, including the excess insurance policies interpreted by the Connecticut Supreme Court in Metropolitan Life Ins. Co. v Aetna Cas. & Sur. Co. (255 Conn 295, 309, 765 A2d 891, 898 [2001]), contain expanded definitions of occurrence that, for example, allow “continuous or repeated exposure to substantially the same general conditions [to] be considered as arising out of one occurrence” (see also, Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208 [2002]), indicating an intent that certain types of similar claims be combined. In Travelers Cas. & Sur. Co. v Certain Underwriters at Lloyd’s of London (96 NY2d 583 [2001]), we interpreted language in reinsurance treaties that allowed aggregation of claims in some circumstances, provided temporal and spatial relationships were present. What these cases demonstrate is that the parties to an insurance policy, like the parties to any contract, are free to determine the terms of their arrangement. If they intend to allow grouping of claims, they need only include language expressing that intent. There is no such language in the EMLICO policies.

      . We note that our conclusion is consistent with the results reached by the United States Court of Appeals for the Second Circuit when applying New York law to claims arising from asbestos exposure or contamination (see In re Prudential Lines Inc., 158 F3d 65 [2d Cir 1998]; Stonewall Ins. Co. v Asbestos Claims Mgt. Corp., 73 F3d 1178 [2d Cir 1995], mod on other grounds 85 F3d 49 [1996]).


author: Pigott, J. Graffeo, J.

text:
    [864 NE2d 49, 832 NYS2d 125]
    Ina Jean Bingham, Respondent, v New York City Transit Authority et al., Appellants.
    Argued January 4, 2007;
    decided February 15, 2007

      POINTS OF COUNSEL

      Lawrence Heisler, Brooklyn, and Wallace D. Gossett for appellants.
    I. The rule obligating common carriers, and only common carriers, to maintain and repair property they neither own nor control, the only liability theory submitted to the jury, cannot be reconciled with principle or recent precedent. Since plaintiff fell on property which the New York City Transit Authority neither controlled nor had a right to maintain, she had no case against it. (Adams v New York City Tr. Auth., 88 NY2d 116; Bethel v New York City Tr. Auth., 92 NY2d 348; Ritto v Goldberg, 27 NY2d 887; Chapman v Silber, 97 NY2d 9; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; Putnam v Stout, 38 NY2d 607; City of Rochester v Campbell, 123 NY 405; Poirier v City of Schenectady, 85 NY2d 310; Kaufman v Silver, 90 NY2d 204; D’Ambrosio v City of New York, 55 NY2d 454.) II. Plaintiff failed to carry her burden of proving that the New York City Transit Authority was liable under the common carrier rule. Plaintiff failed to prove that the stairway was used for subway-related purposes, whether exclusively, the correct view, or even predominantly, plaintiffs understanding of the rule. (Strouse v United Parcel Serv., 277 AD2d 993; S.L. Benfica Transp., Inc. v Rainbow Media, Inc., 13 AD3d 348; Sackman-Gilliland Corp. v Senator Holding Corp., 43 AD2d 948; Meekins v Town of Riverhead, 20 AD3d 399.) III. The trial court erred in charging the jury that under the common carrier doctrine, the New York City Transit Authority could be liable if the stairway was “constantly” or “notoriously” used as a pathway into the station. Thus, even if the common carrier doctrine remains sound, and even if a jury might have found that the stairway was used exclusively by subway passengers, the erroneous charge mandates a new trial. (Fortson v New York City Tr. Auth., 111 AD2d 58; Garcia v Arbern Realty Co., 89 AD2d 616; Ceron v City of New York, 211 AD2d 7; Pena v New York City Tr. Auth., 237 AD2d 150.) IV. The Metropolitan Transportation Authority, whose role is limited to financing and planning, cannot be liable for a tort allegedly committed by the New York City Transit Authority. (Soto v New York City Tr. Auth., 6 NY3d 487; Cusick v Lutheran Med. Ctr., 105 AD2d 681; Adams v New York City Tr. Auth., 140 AD2d 572.)

      Ginsberg & Katsorhis, PC., Flushing (Kerry John Katsorhis of counsel), for respondent.
    I. Under long-standing precedent in this Court, defendant-appellant New York City Transit Authority has a duty to use reasonable care to maintain the safety of or to warn of hazardous conditions existing on a stairway constantly and notoriously used by its passengers as a means of approach to its subway station. (O’Hara v New York City Tr. Auth., 248 AD2d 138; Fortson v New York City Tr. Auth., 111 AD2d 58; Bruno v Vernon Park Realty, 2 AD2d 770; Schlessinger v Manhattan Ry. Co., 49 Misc 504; Ceron v City of New York, 271 AD2d 7; Pena v New York City Tr. Auth., 237 AD2d 150; Haberlin v New York City Tr. Auth., 228 AD2d 383; Calamari v New York City Tr. Auth., 159 Misc 2d 195; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 64 NY2d 670.) II. Defendants-appellants exercise control over the stairway at issue pursuant to their easement. (Kaufman v Silver, 90 NY2d 204; Sutera v Go Jokir, Inc., 86 F3d 298; Bethel v New York City Tr. Auth., 92 NY2d 348; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 64 NY2d 670; Lafflin v Buffalo & S.W. R.R. Co., 106 NY 136.) III. Defendants-appellants’ easement constitutes an independent basis for liability under the special use doctrine. (Kaufman v Silver, 90 NY2d 204.) IV. Defendants-appellants’ easement constitutes an independent basis for liability in itself. (Sutera v Go Jokir, Inc., 86 F3d 298; Piluso v Bell Atl. Corp., 305 AD2d 68; Herman v Roberts, 119 NY 37; Tagle v Jakob, 97 NY2d 165; Greenfarb v R. S. K. Realty Corp., 256 NY 130, 678; Cesario v Chiapparine, 21 AD2d 272; Trustees of Town of Southampton v Jessup, 162 NY 122; Taylor v Millard, 118 NY 244; Raksin v Crown-Kingston Realty Assoc., 254 AD2d 472; Thomassen v J&K Diner, 152 AD2d 421, 76 NY2d 771.) V. The jury charge given by the court below was taken directly from the Court of Appeals’ decision in this case. VI. Defendants-appellants’ attempt to distinguish between the New York City Transit Authority and the Metropolitan Transportation Authority was not preserved for appeal. (Cusick v Lutheran Med. Ctr., 105 AD2d 681; Soto v New York City Tr. Auth., 6 NY3d 487; Adams v New York City Tr. Auth., 140 AD2d 572.)
   OPINION OF THE COURT

Pigott, J.

In November 1995, plaintiff Ina Jean Bingham was injured when she fell while descending a stairway used as a means of access to and egress from the New York City subway. Plaintiff alleges that her foot caught on a metal strip protruding from one of the steps, causing her fall. She brought suit against the New York City Transit Authority and the Metropolitan Transportation Authority (collectively the Transit Authority), asserting, among other things, failure to keep and maintain the stairway in a proper and safe condition and failure to provide notice or warning of the defective condition.

The Transit Authority moved to dismiss the complaint arguing it neither owned nor maintained the stairway. Supreme Court granted the motion dismissing plaintiffs complaint, and the Appellate Division affirmed, holding that the Transit Authority established that it did not own the stairway and that, as a mere common user of the stairway, it was under no duty to maintain it for the benefit of its patrons.

This Court granted leave, reversed the Appellate Division’s order and reinstated the complaint, holding that the Transit Authority’s submissions were insufficient to establish that it was merely a common user of the stairway in question. We declined to reach the more fundamental issue raised by the Transit Authority, i.e., whether the common carrier rule, as stated in Schlessinger v Manhattan Ry. Co. (49 Misc 504 [1906]), should be abandoned in light of this Court’s decisions in Adams v New York City Tr. Auth. (88 NY2d 116 [1996]), Kaufman v Silver (90 NY2d 204 [1997]), and Bethel v New York City Tr. Auth. (92 NY2d 348 [1998]), because that argument had not been preserved for our consideration (see Bingham v New York City Tr. Auth., 99 NY2d 355 [2003]).

Following our decision, the matter proceeded to trial before a jury. At the conclusion of proof, the Transit Authority requested Supreme Court to charge the jury that, unless plaintiff had established that the stairway was used exclusively for subway purposes, she had failed to state a cause of action and her suit should be dismissed. Plaintiff, on the other hand, requested a charge that the Transit Authority would be liable if at the time of plaintiffs fall, the stairway was used by passengers constantly and notoriously as a means of approach. Supreme Court rejected the Transit Authority’s argument, and charged the jury as requested by plaintiff.

The jury returned a verdict in favor of plaintiff and the Transit Authority appealed. The Appellate Division modified by vacating the award for pain and suffering and remanding the matter for a new trial solely on the issue of damages unless plaintiff stipulated to a reduced award. Plaintiff so stipulated and a judgment was entered on the stipulation. This Court granted leave from that judgment to bring up for review the Appellate Division order, and we now affirm.

Courts have long recognized that the duty of care imposed on a common carrier with respect to its passengers requires not only that it keep the transportation vehicle safe, but also that it maintain a safe means of ingress and egress for the use of its passengers (see Kelly v Manhattan Ry. Co., 112 NY 443 [1889]). This duty has been applied to those areas owned and maintained by others if “constantly and notoriously” used by passengers as means of approach (see Schlessinger v Manhattan Ry. Co., 49 Misc 504, 505 [1906]). This rule, as enunciated in Schlessinger, has been recognized not only in New York (see Ambriano v Town of Oyster Bay, 266 AD2d 415 [2d Dept 1999]; Haberlin v New York City Tr. Auth., 228 AD2d 383 [1st Dept 1996]; Fortson v New York City Tr. Auth., 111 AD2d 58 [1st Dept 1985]; Bruno v Vernon Park Realty, 2 AD2d 770, 771 [2d Dept 1956]), but also in other jurisdictions (see e.g. Buchner v Erie R.R. Co., 17 NJ 283, 111 A2d 257 [1955]; Cotant v Boone Suburban Ry. Co., 125 Iowa 46, 99 NW 115 [1904]; Skottowe v Oregon Short Line & U.N. Ry. Co., 22 Ore 430, 30 P 222 [1892], affd 162 US 490 [1896]; Beard v Connecticut & Passumpsic Rivs. R.R. Co., 48 Vt 101 [1875]).

Several courts, in interpreting this rule, have held that the duty applies only where an approach is used “exclusively” to provide passengers access to the carrier (see O’Hara v New York City Tr. Auth., 248 AD2d 138 [1st Dept 1998]; Haberlin, 228 AD2d 383 [1996]). These courts have not applied the rule where the approach was used as a means of access to businesses or tenants in addition to the carrier (see e.g. O’Hara, 248 AD2d 138 [1998]; Pena v New York City Tr. Auth., 237 AD2d 150 [1st Dept 1997]; see also Valladares v New York City Tr. Auth., 208 AD2d 471 [1st Dept 1994]).

Where, as here, a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger. Whether those means of ingress or egress are used primarily for that purpose would generally be a question of fact.

Contrary to the Transit Authority’s urging, our decisions in Bethel and Adams do not lead us to a different result. In Adams, we held that the special rule of “absolute liability” imposed on a carrier for the tortious acts of its employees was no longer practicable. Similarly, in Bethel, we held that a common carrier is no longer subject to a higher standard of care in transporting its passengers, but rather is subject to the same duty as any other potential tortfeasor.

While Adams and Bethel brought important aspects of the law governing common carriers in line with general tort law, they did not eliminate all distinctions between common carriers and other alleged tortfeasors. We therefore conclude that the Schlessinger rule should be retained, at least as applied to areas that serve primarily for ingress and egress to a subway or other similar station that is served by a single carrier. This long-settled rule is undoubtedly consistent with the expectations both of carriers and their patrons, expectations that may be relied on by property owners in allocating control over and responsibility for these areas, as well as by lawyers advising injured clients. A subway patron in the position of plaintiff here would surely be surprised to learn that the New York City Transit Authority had no duty to provide her with a stairway on which she could safely descend to the subway, and we see no good reason to hold that that duty is abolished.

In the case before us, the evidence at trial was sufficient to establish that the stairway in question was used primarily as a means of access to and from the subway. Therefore, defendants had a duty to maintain the stairway or to warn patrons of any dangerous condition. So imperative is the duty to provide a safe means of access to and from the subway that such duty may not be delegated to another. Thus, even if the responsibility to maintain the stairway resides in another entity, defendants may not avoid their responsibility to “at least provide against injury to its passengers by erecting such barricades, or giving such warning, as [would] guard against accidents” (Schlessinger, 49 Misc at 505).

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Graffeo, J.

(dissenting). Based on the jury verdict, there is no question that plaintiff’s injuries arose from a hazardous condition on a stairway. The question here is whether the Transit Authority, as a common carrier, is responsible for plaintiffs damages even though it did not own, occupy or control the defective premises. This inquiry turns on whether this Court should adopt a rule, developed by the Appellate Term in 1906 in Schlessinger v Manhattan Ry. Co. (49 Misc 504 [App Term 1906]), that would hold the Transit Authority liable for injuries on property that is owned, maintained, and controlled by others, but is traversed by passengers on their way to and from subway stations. In my view, the Schlessinger rule of premises liability is outmoded and, consistent with our recent precedents, common carriers should be required only to maintain property they own, occupy or control.

This issue first came to our attention in 2003 when we decided Bingham v New York City Tr. Auth. (99 NY2d 355 [2003] [Bingham I]). In Bingham I, the injured plaintiff appealed the grant of summary judgment dismissing her complaint. As part of their motion papers, defendants submitted evidence indicating that they did not own, control or maintain the stairwell where plaintiff fell and asserting that the stairway was not used exclusively by subway patrons. Defendants had, however, failed to raise in the motion court the argument they pursued on appeal — that the Schlessinger rule should be abandoned. As a result, we did not reach that question. Instead, we reversed the order granting summary judgment and remitted on the ground that an issue of fact existed as to “the alleged common use of the stairway” by businesses or tenants in addition to subway patrons (Bingham I, 99 NY2d at 359), a reference to the First Department’s version of the Schlessinger rule.

On remittal, the case proceeded to trial, with the Transit Authority raising the issue that it had not preserved in Bingham I. During the charge conference, defendants argued that, like other special common carrier rules that are no longer viable, the Schlessinger rule should be abandoned in favor of a rule that does not distinguish common carriers from other defendants, holding them liable only for defects on property they own, occupy or control. The Transit Authority also took issue with plaintiff’s iteration of the Schlessinger rule, under which the jury would be charged that the Transit Authority could be held liable if the stairway was used “openly and notoriously” by subway patrons. The trial court rejected the Transit Authority’s arguments without explanation and charged the jury as requested by plaintiff. The jury found in plaintiffs favor and, after the Appellate Division declined to disturb the liability finding, the Transit Authority pursued its appeal to this Court.

We now must decide whether the Schlessinger rule remains viable in light of our recent common carrier cases and modern premises liability rules. Although no one disputes that the Transit Authority has a duty to maintain approaches and subway platforms — the areas it clearly controls (see Lewis v Metropolitan Transp. Auth., 99 AD2d 246 [1st Dept 1984], affdfor reasons stated 64 NY2d 670 [1984]) — our Court has never adopted the Schlessinger rule. As is evident from the majority opinion, in New York the rule has had limited reach, having been applied primarily to subway or train operators in metropolitan areas; the majority does not cite any upstate appellate court decision relying on the rule. In my view, the Schlessinger rule should not now be embraced by this Court, even in the restricted context of this case.

By applying the Schlessinger rule, the majority backtracks from the progress of the law in discarding specialized rules of liability, especially where common carriers are concerned. In the past decade, we retired several of the heightened duty and standard of care rules that had historically applied to common carriers. In Adams v New York City Tr. Auth. (88 NY2d 116 [1996]), the Court dispensed with the 100-year-old rule that had imposed vicarious liability on common carriers for all acts of their employees, including acts outside the scope of employment, in favor of a more modern rule treating common carriers like other employers. Likewise, in Bethel v New York City Tr. Auth. (92 NY2d 348 [1998]), the Court departed from its long-standing precedent that a common carrier is held to a standard of “extraordinary care” for injuries sustained by passengers while in transit, establishing that the reasonable person standard of care applicable to all other tortfeasors also applied to common carriers. In reaching these conclusions, the Court noted that the historic reasons for treating common carriers differently from other tortfeasors no longer made sense given that public transportation, such as rail travel, had become as safe as private means of transport (id. at 353, citing Adams, 88 NY2d at 121). The trend away from specialized common carrier rules reflects the broader trend in real property law, as exemplified by Basso v Miller (40 NY2d 233 [1976]), which dispensed with specialized standards of care that depended on the status of the injured party as a licensee, invitee or trespasser, instead adopting an across-the-board standard of reasonable care under the circumstances. The most recent precedent from other jurisdictions relied on by the majority was decided in 1955 — long before our Court began the shift away from specialized common carrier and premises liability rules.

Similar to the specialized common carrier rules we abandoned in Bethel and Adams, the Schlessinger rule is inconsistent with the legal principles applicable to other defendants in negligence actions. Absent evidence that a party created a dangerous condition, liability for a premises defect is generally predicated on ownership, occupancy or control. This is reflected in the standard Pattern Jury Instructions charge, which states simply that “[t]he (owner, possessor) of (land, a building) has a duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable” (PJI 2:90 [2007]). There is a PJI common carrier charge, but it is far narrower than the rule the majority adopts today. It states that “[a] carrier owes a duty to its (passenger, prospective passenger) to provide a reasonably safe place to (get on, get off) its vehicle” (PJI 2:166 [2007]). The rule reflected in the PJI charge does not require the Transit Authority or any other common carrier to enter onto or maintain property it does not own, occupy or control. Moreover, in the context of this case, there is no tension between these two PJI charges because the Transit Authority generally controls the subway approaches and platforms where patrons enter and exit subway trains. The stairway where the plaintiff in this case fell led to an area adjacent to a subway platform — there is no claim that the Transit Authority neglected its duty to provide plaintiff with a safe place to get on or off a train.

Beyond its incompatibility with modern trends, the majority rule is troubling because it results in a party being held liable for a condition that it did not create and lacks the power to ameliorate. Where the Transit Authority does not own, occupy or control property, it is not well-positioned to ensure that the property is free of hazardous conditions. A common carrier has no greater right than any other neighbor to enter and repair a defective condition on property owned, occupied or controlled by another, or to erect the barriers or warning signs suggested by the majority.

The majority’s rule will undoubtedly prove difficult to apply fairly. The duty to maintain property ordinarily arises from a party’s legal relationship to that property, often created by deed, lease, easement or contract — a relationship that can be established by objective proof at trial. Here, the duty to maintain embraced by the majority turns on an amorphous standard: whether the property was used “primarily” by subway patrons at the time of the accident. Under this standard, a duty can come into and out of existence depending on circumstances outside a common carrier’s control, such as the number and type of businesses that may also attract persons who walk across the property in question. The majority’s formulation even differs from that applied by the First Department, which has held the Transit Authority liable only if the area where the accident occurred is used exclusively by subway patrons (see Ceron v City of New York, 277 AD2d 7 [1st Dept 2000]; O’Hara v New York City Tr. Auth., 248 AD2d 138 [1st Dept 1998]; Pena v New York City Tr. Auth., 237 AD2d 150 [1st Dept 1997]; Haberlin v New York City Tr. Auth., 228 AD2d 383 [1st Dept 1996]; Fortson v New York City Tr. Auth., 111 AD2d 58, 58 [1st Dept 1985]). Putting aside the dilemma the Transit Authority now faces in predicting which neighboring properties it must inspect and maintain, this rule will create difficulties for juries and lead to inconsistent results, with one jury finding that the Transit Authority had a duty to maintain a particular property while another may reach the opposite conclusion with respect to the same location.

For all of these reasons, I respectfully dissent and would reverse the judgment and grant summary judgment to defendants dismissing the complaint.

Chief Judge Kaye and Judges Ciparick and Smith concur with Judge Pigott; Judge Graffeo dissents and votes to reverse in a separate opinion; Judges Read and Jones taking no part.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

       We note that this duty of care imposed on a carrier to keep approaches and platforms safe has not been extended to common areas in a multi-carrier facility (see generally Raffile v Tower Air, 264 AD2d 721 [2d Dept 1999]).

       Even obligations created by contract “will generally not give rise to tort liability in favor of a third party” (Espinal v Melville Snow Contrs., 98 NY2d 136,138 [2002]; see also, Church v Callanan Indus., 99 NY2d 104, 111 [2002]).