author: Smith, J. Chief Judge Kaye

text:
    [864 NE2d 56, 832 NYS2d 132]
    In the Matter of New York City Transit Authority, Appellant, v New York State Public Employment Relations Board et al., Respondents.
    Argued January 3, 2007;
    decided February 20, 2007

      POINTS OF COUNSEL

      Robert K. Drinan, Brooklyn, and Martin B. Schnabel for appellant.
    The Public Employment Relations Board exceeded its jurisdiction by rendering an opinion on a question of pure statutory construction and, in effect, promulgating a rule of general applicability through the adjudicatory process. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Howard v Wyman, 28 NY2d 434; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d 722; Boreali v Axelrod, 71 NY2d 1; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 243 AD2d 567, 91 NY2d 812; Matter of New York City Tr. Auth. v Transport Workers Union of Am., AFL-CIO, Local 100, 220 AD2d 749; Matter of Sperling v Helsby, 60 AD2d 559.)

      Sandra M. Nathan, Albany, and William L. Busier for New York State Public Employment Relations Board, respondent.
    I. The Appellate Division’s determination that the Public Employment Relations Board’s decision was permissible and reasonable should be affirmed. (Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Matter of Uniondale Union Free School Dist. v Newman, 167 AD2d 475, 77 NY2d 809; Matter of Hoey v New York State Pub. Empl. Relations Bd., 284 AD2d 633; Matter of City of Newburgh v Newman, 70 AD2d 362; Matter of Greenburgh No. 11 Union Free School Dist. v Kinsella, 253 AD2d 46, 93 NY2d 810; Matter of State of N.Y. [Div. of State Police] v Police Benevolent Assn. of N.Y. State Troopers, Inc., 25 AD3d 963; Matter of Fashion Inst. of Tech. v Helsby, 44 AD2d 550; Matter of Suffolk County Legislature v Cuevas, 303 AD2d 415; Matter of County of Monroe v Newman, 125 AD2d 1002; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23.) II. The Appellate Division properly deferred to the Public Employment Relations Board’s determination. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Village of Scotia v New York State Pub. Empl. Relations Bd., 241 AD2d 29; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d 722; Matter of Civil Serv. Empls. Assn. v Newman, 90 AD2d 114; Matter of Lippman v Public Empl. Relations Bd., 263 AD2d 891; Matter of Town of Southampton v New York State Pub. Empl. Relations Bd., 2 NY3d 513; Matter of State of N.Y. [Div. of State Police] v Police Benevolent Assn. of N.Y. State Troopers, Inc., 25 AD3d 963.) III. The Court should not consider evidence and a claim that were not before the Public Employment Relations Board. In any event, the claim has no merit. (Matter of Lippman v Public Empl. Relations Bd., 296 AD2d 199, 99 NY2d 503; Matter of Margolin v Newman, 130 AD2d 312, 71 NY2d 844; Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, 58 NY2d 952; Matter of Duamutef v Johnson, 266 AD2d 823, 94 NY2d 759; Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 73 NY2d 796; Matter of New York State Correctional Officers & Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 309 AD2d 1118; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73.) IV. The New York City Transit Authority’s remaining arguments have no merit. (Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Mantica v New York State Dept. of Health, 94 NY2d 58; Matter of City of Albany v Public Empl. Relations Bd., 57 AD2d 374, 43 NY2d 954; Matter of State of New York [State Univ. of N.Y.] v New York State Pub. Empl. Relations Bd., 181 AD2d 391; Matter of Village of Scotia v New York State Pub. Empl. Relations Bd., 241 AD2d 29; Rosen v Public Empl. Relations Bd., 128 Misc 2d 628, 125 AD2d 657; Matter of Transport Workers Union of Am., Local 100, AFL-CIO v New York State Pub. Empl. Relations Bd., 24 AD3d 224; Matter of City of Rochester v Public Empl. Relations Bd., 15 AD3d 922, 4 NY3d 710; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660.)

      Schwartz, Lichten & Bright, PC., New York City (Stuart Lichten of counsel), for Transport Workers Union of America, Local 100, respondent.
    The Public Employment Relations Board rationally found that the New York City Transit Authority violated the Taylor Law when it denied an employee union representation during an investigatory interview. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Village of Scotia v New York State Pub. Empl. Relations Bd., 241 AD2d 29; NLRB v J. Weingarten, Inc., 420 US 251.)

      Nancy E. Hoffman, Albany, William A. Herbert and Jerome Lefkowitz for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.
    The Public Employment Relations Board’s conclusion that the New York City Transit Authority violated the Taylor Law when it denied requested union representation to a public employee during a disciplinary interrogation constituted a reasonable interpretation of the rights guaranteed public employees by Civil Service Law §§ 202, 203 and 209-a (1) (a). (Matter of County of Monroe v Newman, 125 AD2d 1002; NLRB v J. Weingarten, Inc., 420 US 251; Matter of City of Albany v Helsby, 29 NY2d 433; Matter of Village of Scotia v New York State Pub. Empl. Relations Bd., 241 AD2d 29; National Labor Relations Bd. v Thor Power Tool Co., 351 F2d 584; Matter of

      Rosen v Public Empl. Relations Bd., 72 NY2d 42; Matter of Matt v Larocca, 71 NY2d 154; Matter of Sperling v Helsby, 60 AD2d 559; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Anderson v Dolce, 653 F Supp 1556.)

      James R. Sandner, New York City, and Stuart I. Lipkind for New York State United Teachers, amicus curiae.
    I. The courts below correctly ruled that the right of a public employee under Civil Service Law § 202 to participate in his union entitles him to have a union representative present at investigatory interviews that may lead to discipline. (NLRB v J. Weingarten, Inc., 420 US 251; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of Gruber [New York City Dept. of Personnel — Sweeney], 89 NY2d 225; Matter of Rochester Gas & Elec. Corp. v Public Serv. Commn. of State of N.Y., 117 AD2d 156; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of New York, 78 NY2d 143; Matter of County of Monroe v Newman, 125 AD 2d 1002; Matter of Sperling v Helsby, 60 AD2d 559; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 250 AD2d 122.) II. All public employee bargaining jurisdictions — including those states with statutes similar to Civil Service Law § 202— recognize the right of an employee to the presence of a union representative in interviews that may lead to discipline.
   OPINION OF THE COURT

Smith, J.

The National Labor Relations Act (NLRA), as interpreted in NLRB v J. Weingarten, Inc. (420 US 251 [1975]), gives to an employee of a firm subject to the NLRA the right to have a union representative present with the employee at an investigatory interview, if the employee reasonably believes that the interview might result in disciplinary action — a so-called “Weingarten right.” We hold today that the Taylor Law does not give a Weingarten right to New York public employees.

Facts and Procedural History

This case arises out of the New York City Transit Authority’s interview of one of its employees, Igor Komarnitskiy. The Authority was informed that Komarnitskiy, a car inspector, had become angry when asked to show a pass before entering a train yard and that, in objecting to the request, he had used a racial slur in referring to employees he thought were treated less strictly. The Authority asked Komarnitskiy for a written response to the allegation, and Komarnitskiy provided one that he had prepared with the help of a representative of the Transport Workers Union (TWU). The Authority, suspicious that the TWU representative had influenced or dictated the content of the response, ordered Komarnitskiy to come to a supervisor’s office to prepare a new response, and refused to allow TWU representatives to come with him.

The TWU filed an improper practice charge against the Authority, claiming that it had violated Komarnitskiy’s Weingarten right. The Public Employment Relations Board (PERB) upheld the charge, and the Authority brought this CPLR article 78 proceeding against PERB and the TWU, asking that PERB’s decision be annulled. Supreme Court dismissed the proceeding, and the Appellate Division affirmed. We granted leave to appeal, and now reverse.

Discussion

Weingarten establishes that, if this case were governed by the NLRA, Komarnitskiy would have been entitled to have union representatives present at his interview with his supervisor. In Weingarten, the Supreme Court upheld a ruling by the National Labor Relations Board (NLRB) that section 7 of the NLRA “creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline” (420 US at 256). The question here is whether the Taylor Law (Civil Service Law art 14), specifically Civil Service Law § 202, gives a similar right to public employees in New York. We decide this issue de novo, without deferring to PERB’s interpretation of the statute, because “the question is one of pure statutory construction ‘dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence’ ” of PERB (Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47-48 [1988], quoting Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]).

Civil Service Law § 202 provides: “Public employees shall have the right to form, join and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing.”

This statutory language is in some ways similar to, but in more relevant ways different from, that of the statute interpreted in Weingarten, section 7 of the NLRA (29 USC § 157). Section 7 provides:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . ."

While some of the rights given by section 7 (“to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing”) have close counterparts in section 202 (“to form, join and participate in . . . any employee organization of their own choosing”), those are not the rights that the Supreme Court relied on in Weingarten. Rather, Weingarten upheld the NLRB’s decision that the right to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection” included a right to have union representatives present at disciplinary interviews (420 US at 260). Since the “mutual aid or protection” language is absent from section 202, Weingarten does not support a holding that section 202 creates a Weingarten right. As we explained in Rosen, the differences between section 202 and section 7 are not mere random variations:

“Unquestionable omissions from the Taylor Law of certain rights explicitly accorded in analogous provisions of the NLRA reflect an effort to advance concerns peculiar to the Taylor Law — such as the promotion of ‘harmonious and co-operative relationships between government and its employees’ . . . that are inapplicable under the NLRA. Manifestly, the Legislature sought to exclude from a statutory scheme regulating public employment certain rights and advantages conferred upon those in the private sector . . . .” (72 NY2d at 50 [citations omitted], quoting Matter of Zuckerman v Board of Educ. of City School Dist. of City of N.Y., 44 NY2d 336, 342 [1978].)

PERB and the TWU argue that a Weingarten right may be inferred from section 202’s provision for “the right to . . . participate in” labor unions. The right to union representation at disciplinary interviews, however, is not inherent in the right to participate in a union. Of course, employees may seek such a right of representation in collective bargaining; in doing so, they are protected by the Taylor Law’s provision, in Civil Service Law § 203, that they “shall have the right... to negotiate collectively with their public employers in the determination of their terms and conditions of employment.” But nothing in the text of the Taylor Law suggests that a Weingarten right is given by the statute itself.

The text and legislative history of a later-enacted statute strongly support our conclusion that the Taylor Law does not confer a Weingarten right. In 1993, 26 years after the Taylor Law’s enactment, and 18 years after Weingarten, the Legislature amended Civil Service Law § 75 (2) — which applies to many, though not all, of the public employees protected by the Taylor Law — to add the following language:

“An employee who at the time of questioning appears to be a potential subject of disciplinary action shall have a right to representation by his or her certified or recognized employee organization under article fourteen of this chapter and shall be notified in advance, in writing, of such right. If representation is requested a reasonable period of time shall be afforded to obtain such representation. If the employee is unable to obtain representation within a reasonable period of time the employer has the right to then question the employee. A hearing officer under this section shall have the power to find that a reasonable period of time was or was not afforded. In the event the hearing officer finds that a reasonable period of time was not afforded then any and all statements obtained from said questioning as well as any evidence or information obtained as a result of said questioning shall be excluded, provided, however, that this subdivision shall not modify or replace any written collective agreement between a public employer and employee organization negotiated pursuant to article fourteen of this chapter.” (L 1993, ch 279, § 1.)

Section 75 (2) gives the employees to which it applies a kind of Weingarten right, but one different from the right that PERB and the TWU ask us to find in the Taylor Law. Under section 75 (2), a violation of a Weingarten right results not in an improper practice proceeding before PERB, but in the exclusion from a disciplinary hearing of statements made at the interview and evidence obtained as a result. And the Weingarten right created by section 75 (2), unlike the right given by the Taylor Law to “participate in . . . employee organization^],” may be surrendered in collective bargaining. It would have made no sense to create the section 75 (2) version of the Weingarten right if a more robust version of that right already existed under the Taylor Law.

The history of the 1993 legislation shows clearly that its supporters did not believe that any Weingarten right existed in New York law before 1993. The supporting memorandum of the Senate sponsor of the 1993 legislation says: “New York State public employees do not have the same protection enjoyed by private sector employees during interviews and discussions by their employers,” and goes on to defend the idea of creating such a right with language taken from the Supreme Court’s Weingarten decision (Senate Introducer Mem in Support, Bill Jacket, L 1993, ch 279, at 22). A letter from a supporter of the legislation, the president of a civil service union, similarly notes that, under existing law, New York public employees lack the protections enjoyed by private sector employees, and adds: “This protection has been affirmed by the United States Supreme Court in NLRB v Weingarten . . . .” (Letter from Joseph E. Mc-Dermott, President of Civ Serv Empls Assn, Mar. 29, 1993, Bill Jacket, L 1993, ch 279, at 49; see also Letter from Stanley Hill, Exec Director, Am Fedn of St, County & Mun Empls, AFL-CIO, Dist Council 37, July 13, 1993, Bill Jacket, L 1993, ch 279, at 59). We see no basis for concluding that the supporters of the 1993 legislation misunderstood the existing law, and were wasting their time in changing it.

Accordingly, the order of the Appellate Division should be reversed, with costs, the petition granted, PERB’s determination of October 2, 2002 annulled, and the improper practice charge dismissed.

Chief Judge Kaye

(dissenting). In 1967, the New York State Legislature enacted the Public Employees’ Fair Employment Act (Civil Service Law, art 14, § 200 et seq., popularly known as the Taylor Law [L 1967, ch 392, § 2]), explicitly to promote harmonious labor relations in the public sector. Today’s decision will, I fear, foster dissonance.

The Public Employment Relations Board (PERB) determined that permitting an employee to have a union representative at an interview which the employee reasonably fears may result in discipline is a right granted under the Taylor Law. Construing the statute de novo (assuming that is the proper standard), I agree with PERB that the fundamental right to participate in a union — as the Legislature intended — includes the right to a union representative’s attendance at a precharge interview, and I would affirm the orders of the trial court and the Appellate Division so holding (see Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42 [1988] [the Court, undertaking de novo interpretation, agrees with PERB]).

Igor Komarnitskiy, a Car Inspector with the Transit Authority (TA) and a member of the Transport Workers Union (TWU), was accused by a Transit Property Protection Agent of using a racial epithet when, in their native language, he complained about having to show his pass. When the TA requested that Komarnitskiy submit a written response to the allegation on a “G-2” form, he and a TWU Shop Chair together prepared a response: “I presented my parking pass and I.D. card to the property protection person, as per request.” Concerned that the Shop Chair may have influenced the content of the G-2 response, the TA directed Komarnitskiy to write out another response behind locked doors in the Superintendent’s office. The Shop Chair was denied entrance into the office, and when three other union representatives arrived, they too were denied despite insistent demands. The second G-2 states: “I [three indecipherable words] about the yellow pass. My regular pass was in my hand, and I did not passed the [line] on that moment.” Two weeks later, the TWU filed an improper practice petition alleging interference with the employee’s right to participate in union activities. When Komarnitskiy was taken into the Superintendent’s office behind locked doors, he could have reasonably feared discipline, now for two accusations.

PERB affirmed the Administrative Law Judge’s determination that the case should be decided with reference to NLRB v J. Weingarten, Inc. (420 US 251 [1975]). In Weingarten the United States Supreme Court upheld a National Labor Relations Board (NLRB) determination that an employee in the private sector has a right “to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline” (id. at 256). The case involved a lunch counter worker accused of stealing. When a store manager and security agent questioned her, she was denied her request to have the presence of her union representative at the interview. Bursting into tears, she explained that she had thought she was permitted to eat lunch without paying, and the manager pressed her to sign a statement; but the manager later learned that a different branch of the store where she had recently worked did have the “free lunch” policy.

The Court in Weingarten, upholding the finding that the employer had committed an unfair labor practice, based its determination that employees may be represented at an interview that could lead to discipline on language in National Labor Relations Act § 7 (29 USC § 157) that “ ‘[e]mployees shall have the right ... to engage in . . . concerted activities for the purpose of. . . mutual aid or protection’ ” (id. at 260). Under the NLRA, it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title” (§ 8 [a] [1] [29 USC § 158 (a) (1)]). The Court also based its rationale on the policies underlying the statute:

“Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the [National Labor Relations] Act was designed to eliminate, and bars recourse to the safeguards the Act provided ‘to redress the perceived imbalance of economic power between labor and management’ ” (id. at 262 [citation omitted]).

The Supreme Court emphasized the benefits to employers as well as employees:

“A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview” (id. at 262-263).

A court must give effect to the intention of the Legislature by considering, first, the language in “its natural and most obvious sense,” then “the general spirit and purpose underlying its enactment” and, later, extrinsic evidence, such as legislative history (see McKinney’s Cons Laws of NY, Book 1, Statutes §§ 94, 96, 120; see also Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [courts should use the “natural signification of the words employed” (citations omitted)]). The majority today reverses PERB’s determination essentially because the words, “concerted activities for the purpose of . . . mutual aid or protection” are not found in the Taylor Law. That section 202 of the Taylor Law omits these words, however, does not contravene an interpretation that the word “participate” in its “natural signification” in the Taylor Law manifests a legislative intent to allow public employees the right to union representation at an investigatory interview when the employee seeks that representation.

Section 200 of the Taylor Law states its underlying purpose:

“The legislature of the state of New York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. These policies are best effectuated by (a) granting to public employees the right of organization and representation . . . .”

To further its goals that harmony between public sector employers and employees be achieved through rights of organization and representation, the Legislature extended in section 202 “the right to form, join and participate in . . . any employee organization of their own choosing.” Section 203 affords employees the right to be “represented by employee organizations, to negotiate collectively with their public employers in the determination of their terms and conditions of employment, and the administration of grievances arising thereunder.” Further, section 209-a (1) provides: “It shall be an improper practice for a public employer or its agents deliberately (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section two hundred two for the purpose of depriving them of such rights . . . .” Section 205 (5) (d) authorizes PERB to issue a decision and order to resolve improper practice charges. PERB thus has authority to determine whether an employer has committed an improper practice by interfering with an employee’s participation in union activities.

“The right of public employees to form, join and participate in any employee organization ... is not strictly limited to activities in furtherance of collective bargaining rights” (Matter of Greenburgh No. 11 Union Free School Dist. v Kinsella, 253 AD2d 46, 51 [3d Dept 1999]; see also Matter of State of N.Y. [Div. of State Police] v Police Benevolent Assn. of N.Y. State Troopers, Inc., 25 AD3d 963 [3d Dept 2006]). Moreover, the request for union representation has been deemed “participation” under section 202:

“Section 209-a.l (a) of the Act broadly and generally prohibits employer actions which interfere with employees’ statutory rights. Employees have the protected statutory right to have union representation with respect to any issue affecting their employment relationship, whether or not that issue embraces a mandatory subject of negotiation. That request for and receipt of union representation constitutes participation in a union, a right specifically protected by § 202 of the Act” (Matter of AFSCME, Local 650, AFL-CIO [City of Buffalo], 30 PERB ¶ 3021, at 3048 [1997]; see also Matter of County of Monroe v Newman, 125 AD2d 1002, 1003 [4th Dept 1986] [supports PERB’s construction of sections 202 and 203 as “intimately related,” and confirms that “ ‘(a)ction taken for the purpose of frustrating the right of representation . . . necessarily has a chilling effect on the § 202 right of organization and is inherently destructive of that right’ ”]).

Issues concerning union representation on disciplinary matters for bargaining unit members are part of the employment relationship in the public sector (see e.g. Matter of Civil Serv. Empls. Assn. v Public Empl. Relations Bd., 132 AD2d 430 [3d Dept 1987], affd 73 NY2d 796 [1988]; Matter of Patchogue-Medford Congress of Teachers [Patchogue-Medford Union Free School Dist.], 30 PERB ¶ 3041 [1997]; Matter of New York State Pub. Empls. Fedn., AFL-CIO [State of New York (Dept. of Health & Roswell Mem. Inst.)], 26 PERB ¶ 3072 [1993]). Thus, a proper interpretation of the Taylor Law is that it incorporates the right to have representation relating to informal investigations of employee conduct — a construction that is not negated by the existence of a statute that addresses formal disciplinary actions in. Civil Service Law § 75. To “participate” means to take part in something, usually in common with others. Seeking advice from a union representative when a bargaining unit member is most vulnerable certainly is encompassed in the plain language of “participate.”

As noted above, the underlying purposes of the Taylor Law are to promote cooperation and to assure “the orderly and uninterrupted operations and functions of government” — in other words, to prevent strikes. In 1969 — two years after the original law was passed and six years before Weingarten was decided — a panel led by George W. Taylor, after whom the law was named, issued a report (see New York [State] Governor’s Committee on Public Employee Relations. Recommendations for current legislative action with respect to the Taylor Law [1969] [Report]). The Report emphasized the need to use impasse panels and other deterrents — such as fines and imprisonment — in order to prevent illegal strikes. Section 209-a was added in 1969 (L 1969, ch 24, § 7). Thus, at the same time that the Legislature added the section delineating improper practices to ensure that employers would adhere to the statute as a whole, the Legislature also included section 209-a (3) (now subd [6]), which provides: “In applying this section, fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent.”

The thrust of this section is to reinforce the point that public employees in the state do not have the same right to strike as those employees covered by the NLRA — not that state employees do not have the same rights to participate in union activity (see A. Baldwin, Weingarten and the Taylor Law — A Claimed Difference Without Distinction, 7 Hofstra Lab LJ 123, 145, 152-153, and passim [Fall 1989]). Indeed, it is likely that the main reason that section 202 does not include the words, “mutual aid or protection” is to bar strikes — and section 209-a (6) was meant to reinforce that point.

In the 1969 Report, the panel wrote:

“Our recommendations included an extension of rights to government employees which had never previously been accorded in New York State. At the same time, we reiterated certain long-standing obligations of government employees to the public whom they serve. The basic principles for accommodating the rights of employees and the rights of the public, in our considered judgment, have been expressed in the Taylor Law. Effectuation of those principles in a sound manner is a long-term undertaking. With experience under the Law will come an understanding of the changes in policy and in administrative procedures which are required to deal with the problems which arise.
“For the continuing sound development of constructive employee relations in the public sector, it is imperative to the achievement of solutions of these problems to enlist the continuing advice and cooperation of leaders of labor and management representatives in both the private and public sectors. The evolution of government-employee relations would benefit greatly, particularly at the present stage, from such advice and cooperation” (Report at 23-24).

The panel recommended that a Public Employment Relations Advisory Council be established to include representatives of the public and private sectors to work “for the common objective of achieving equity for public employees and protection of broad public interests” (Report at 24). “While recognizing the differences between private and public employment, [the Council] could bring to bear upon the problems of the public sector the best experience of the more mature private sector” (Report at 25). The goal of the 1969 amendments was not to distinguish all Taylor Law rights from rights granted under the NLRA but to underscore the need for government employees not to engage in work stoppages, in exchange for which they would be permitted to participate in a union.

The Court in Rosen, as the majority indicates, did interpret the Taylor Law to be more restrictive than the NLRA: “Manifestly, the Legislature sought to exclude from a statutory scheme regulating public employment certain rights and advantages conferred upon those in the private sector (see, e.g., Civil Service Law § 200 [public employees have no right to strike])” (Rosen, 72 NY2d at 50 [emphasis added]). In addition, the Court determined that PERB correctly found that the Taylor Law does not protect unorganized activity (id.). As to section 209-a (6), the Court stated:

“To be sure, this provision prohibits reliance on the NLRA itself, and case law interpreting that statute, as mandating a particular result. It does not, however, prohibit a comparison of the two statutes and the body of case law interpreting each in order to ascertain the meaning of provisions in the Taylor Law, and to discern our Legislature’s intent in drafting them” (id. at 51).

While the comparison between the Taylor Law and the NLRA in Rosen highlighted the differences between an “employee organization” as defined in section 201 of the Taylor Law and an unorganized group of individuals, here public and private employees represented by a union are in essentially the same position — seeking to participate in a protected union activity of getting advice from a union representative when discipline is an issue. I take guidance from the Weingarten decision that representation in the circumstances of an employee’s reasonable fear that an investigatory interview may result in discipline is consistent with the “most fundamental purposes” of the Taylor Law (see Weingarten, 420 US at 261).

Nor will granting a Weingarten right deter collective bargaining. On the contrary, bargaining over procedures is mandatory even for a subject “treated by statute,” and “the presumption is that all terms and conditions of employment are subject to mandatory bargaining” (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000] [citations omitted]).

Moreover, the 1993 amendments in Civil Service Law § 75 do not foreclose a finding of a Weingarten right in the Taylor Law. The underlying policies of the Taylor Law and section 75 address different issues. It is possible, for example, for an employee to be terminated following a section 75 hearing, but then be reinstated after PERB finds that the employer committed an improper practice — perhaps discrimination or retaliation (see Matter of City of Albany v Public Empl. Relations Bd., 57 AD2d 374 [3d Dept 1977], affd 43 NY2d 954 [1978]). Section 75 sets forth procedures for imposing discipline in accordance with due process. Section 75 (2) provides that an employee has a right to representation at the time of questioning and “shall be notified in advance, in writing, of such right.” Section 75 (2) also provides for a representative when an employee has already been charged with a disciplinary infraction (see Matter of Ulster County Sheriff’s Empls. Assn. [County of Ulster], 26 PERB ¶ 3008 [1993]). The rationale for ensuring that an employer does not “interfere” with a bargaining unit member’s representation before the formal filing of charges is to attempt to balance the equities between the power of the employer and the vulnerability of the employee. Deferring representation makes it “increasingly difficult for the employee to vindicate himself, and the value of representation is correspondingly diminished” ('Weingarten, 420 US at 263-264). That the Legislature chose to add a right to section 75 that an employee be represented is by no means dispositive that the right to have representation upon request at an investigatory interview is excluded in the Taylor Law.

Komarnitskiy, whose native language is not English, was taken into a Superintendent’s office behind closed doors following an attempt to exonerate himself. I do not diminish the seriousness of the alleged offense. Nor is it appropriate to address whether the representative and Komarnitskiy improperly completed the G-2. But just like the lunch counter worker in Weingarten, Komarnitskiy, as a Car Inspector, was in a vulnerable position. The TA, in violation of section 209-a (1) (a), denied a union member the right to seek advice and support from his union representative — the right to participate in his employee organization. My hope is that the Legislature will enact, and the Governor will sign into law, an amendment to make explicit in the Taylor Law what to my mind is now implicit.

Judges Graffeo, Read and Pigott concur with Judge Smith; Chief Judge Kaye dissents in a separate opinion in which Judge Ciparick concurs; Judge Jones taking no part.

Order reversed, etc.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [864 NE2d 65, 832 NYS2d 141]
    Lena C. Tedesco, Individually and as Executrix of Frank Tedesco, Deceased, Respondent, v A.P. Green Industries, Inc., et al., Defendants, and Insulation Distributors, Inc., Respondent and Third-Party Plaintiff-Respondent. E.I. du Pont de Nemours and Company, Third-Party Defendant-Appellant.
    Argued January 9, 2007;
    decided February 22, 2007

      POINTS OF COUNSEL

      Lipsitz & Ponterio, LLC, Buffalo (John Ned Lipsitz and. Anne E. Joynt of counsel), for Lena C. Tedesco, respondent.
    I. Supreme Court properly exercised its discretion in denying Insulation Distributors, Inc.’s motion for leave to amend its answer to plead the affirmative defense of lack of capacity to be sued, because Insulation Distributors offered no reasonable excuse for its delay, plaintiff would be prejudiced by Insulation Distributors’ delay if the motion were granted, and there is no merit to Insulation Distributors’ lack of capacity defense. (Rose v Velletri, 202 AD2d 566; Baker v Keller, 241 AD2d 947; Cameron v 1199 Hous. Corp., 208 AD2d 454; Fulford v Baker Perkins, Inc., 100 AD2d 861.) II. Supreme Court correctly decided that plaintiff could sue Insulation Distributors, Inc. for decedent’s injurious exposure to asbestos, which occurred prior to Insulation Distributors’ dissolution. (City of New York v New York & S. Brooklyn Ferry & Steam Transp. Co., 231 NY 18; Independent Inv. Protective League v Time, Inc., 50 NY2d 259; Matter of Rodgers v Logan, 121 AD2d 250; Gutman v Club Mediterranee Intl., 218 AD2d 640; Briere v Barbera, 163 AD2d 659; Schmidt v Merchants Despatch Transp. Co., 270 NY 287; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; Penny v United Fruit Co., 869 F Supp 122; Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449.)

      Damon & Morey LLP, Buffalo (Amy Archer Flaherty and Carol G. Snider of counsel), for Insulation Distributors, Inc., respondent and third-party plaintiff-respondent.
    I. Although a dissolved corporation, Insulation Distributors, Inc. has the legal capacity to sue E.I. du Pont de Nemours and Company for contribution and indemnification. (Gutman v Club Mediterranee Intl., 218 AD2d 640; Briere v Barbera, 163 AD2d 659; Lorisa Capital Corp. v Gallo, 119 AD2d 99; Matter of Milton L. Ehrlich, Inc. [Unit Frame & Floor Corp.], 5 NY2d 275; Matter of Rodgers v Logan, 121 AD2d 250; McDermott v City of New York, 50 NY2d 211, 1059; Matter of Valstrey Serv. Corp. v Board of Elections, Nassau County, 2 NY2d 413; Bay Ridge Air Rights v State of New York, 44 NY2d 49; Nassau Roofing & Sheet Metal Co. v Celotex Corp., 70 AD2d 395; Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449.) II. In the alternative, if Insulation Distributors, Inc. lacks the legal capacity to sue, it similarly lacks the legal capacity to be sued and plaintiff’s complaint must therefore be dismissed. (Mas v Two Bridges Assoc., 75 NY2d 680.) III. Appellant abandoned its argument that the third-party complaint must be dismissed for Insulation Distributors, Inc.’s failure to comply with discovery and, in any event, CPLR 5501 does not authorize this Court to review the finding of the Fourth Department that third-party defendant’s argument is without merit. (Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599; Matter of Allen v Rizzardi, 5 NY2d 493; Emanuel v Broadway Mall Props., 293 AD2d 708; Brandes v Pirnie-Baker, 288 AD2d 413; Metropolitan Life Ins. Co. v Falk & Co., 265 AD2d 203.)

      Phillips Lytle LLP, Buffalo (Paul F. Jones, Lisa L. Smith, J. Michael Lennon, Jessica M. Lazarin and Jacqueline Phipps Polito of counsel), for third-party defendant-appellant.
    I. Insulation Distributors, Inc. has no legal capacity to bring suit. (Dunn v Uvalde Asphalt Paving Co., 175 NY 214; McDermott v City of New York, 50 NY2d 211; Ralston Purina Co. v McKee & Co., 174 AD2d 1060; Cubito v Kreisberg, 69 AD2d 738, 51 NY2d 900; Musco v Conte, 22 AD2d 121; Satta v City of New York, 272 App Div 782; Bay Ridge Air Rights v State of New York, 44 NY2d 49; Tavernier v Toner, 155 AD2d 948; Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449; Lorisa Capital Corp. v Gallo, 119 AD2d 99.) II. Insulation Distributors, Inc.’s refusal and inability to provide meaningful discovery responses emphasizes the sound policy reasons behind Business Corporation Law § 1006 (b) and is an alternate ground for reversal. (Brown v Michelin Tire Corp., 204 AD2d 255; Wolfson v Nassau County Med. Ctr., 141 AD2d 815.)
   OPINION OF THE COURT

Smith, J.

We hold that a dissolved corporation may, as part of winding up its affairs, bring a third-party claim for indemnity or contribution in an action arising out of predissolution events.

Facts and Procedural History

Insulation Distributors, Inc. (IDI) was a distributor of products containing asbestos, and as a result became a defendant in a number of lawsuits. In this case, IDI was sued by the estate of Frank Tedesco, who worked for many years as an electrician for E.I. du Pont de Nemours and Company (DuPont). Tedesco allegedly came in contact with IDI’s products during the course of his work with DuPont, from which he retired in 1992.

IDI went out of business in 1996, and was dissolved for nonpayment of taxes in 1999. In 2000, Tedesco was diagnosed with illnesses allegedly caused by asbestos; he died later that year. His estate brought this action against IDI and others in 2001. IDI answered the complaint and brought a third-party action against DuPont for contribution or indemnification.

In the course of discovery, IDI relied on its status as a dissolved corporation in objecting to certain of DuPont’s discovery requests. DuPont then moved to amend its answer to the third-party complaint to assert a defense of lack of capacity to sue, and sought dismissal of the third-party complaint on that ground. Supreme Court permitted the amendment and dismissed the third-party complaint on the ground of lack of capacity. The Appellate Division reversed, but granted DuPont leave to appeal to this Court. We now affirm.

Discussion

Business Corporation Law §§ 1005 and 1006 govern the capacity of a dissolved corporation to bring suit. Section 1005 (a) (1) provides: “After dissolution . . . [t]he corporation shall carry on no business except for the purpose of winding up its affairs.” Section 1006 (a) provides:

“A dissolved corporation, its directors, officers and shareholders may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place, except as otherwise provided in this chapter or by court order. In particular, and without limiting the generality of the foregoing: . . .
“(4) The corporation may sue or be sued in all courts and participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name, and process may be served by or upon it.”

Under these statutes, IDI had capacity to bring its third-party claim against DuPont so long as that activity was part of “winding up its affairs.” Clearly, it was. To wind up its affairs, IDI had either to settle or defend the asbestos claims against it, including the one by Tedesco’s estate. To assert a third-party claim for contribution or indemnification is a normal part of defending an asbestos claim, and is plainly authorized by Business Corporation Law § 1005 (a) (1) and § 1006 (a). While the power to bring such a claim might well be implicit in the general power of a dissolved corporation to wind up its affairs, that power is made explicit by the specific authorization to “sue or be sued . . . and participate in actions and proceedings” (§ 1006 [a] [4]).

DuPont’s argument that IDI lacks capacity to sue depends primarily on Business Corporation Law § 1006 (b), which provides:

“The dissolution of a corporation shall not affect any remedy available to or against such corporation, its directors, officers or shareholders for any right or claim existing or any liability incurred before such dissolution, except as provided in sections 1007 (Notice to creditors; filing or barring claims) or 1008 (Jurisdiction of supreme court to supervise dissolution and liquidation)” (emphasis added).

DuPont’s argument is that IDI’s claim against it was not a “claim existing” before IDEs dissolution in 1999. DuPont is correct that the claim had not yet accrued for statute of limitations purposes — and indeed, it has not yet accrued. The statute of limitations on a claim for indemnity or contribution accrues only when the person seeking indemnity or contribution has paid the underlying claim (McDermott v City of New York, 50 NY2d 211, 217 [1980]; Bay Ridge Air Rights v State of New York, 44 NY2d 49, 53 [1978]). Also, a critical prerequisite to IDI’s action against DuPont was lacking at the time of IDI’s dissolution, for Tedesco had not then suffered a “grave injury” within the meaning of Workers’ Compensation Law § 11, which limits claims against an injured person’s employer to cases involving death and some other injuries specified in the statute. Tedesco was not known to have suffered any injury at all in 1999, and did not suffer a “grave injury” until 2000.

Thus, IDI had no more than a contingent claim against DuPont in 1999. We need not, however, decide whether a claim that is only contingent may be a “claim existing” within the meaning of Business Corporation Law § 1006 (b). That statute says that dissolution “shall not affect any remedy ... for any right or claim existing . . . before such dissolution,” but it does not say, and we do not read it to imply, that no claim coming into existence after dissolution may ever be pursued.

If the statute were read to preclude all suits on claims not ripe at the time of dissolution, it would produce anomalous results. For example, a debt to a dissolved corporation that became due on the day after dissolution would be uncollectible, and the debtor would receive a windfall. Section 1006 (b) should not be interpreted to impair the capacity of a dissolved corporation like IDI to bring lawsuits appropriate to “winding up its affairs,” a capacity clearly established by sections 1005 (a) and 1006 (a). Thus the Appellate Division was correct in rejecting DuPont’s lack of capacity defense.

DuPont also offers an alternative ground for dismissal of the third-party claim — IDI’s alleged failure to provide discovery. The Appellate Division did not abuse its discretion in holding that dismissal on this ground was unwarranted. We express no other opinion on the parties’ discovery disputes, which remain for Supreme Court to decide.

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

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

Order affirmed, etc.


author: Read, J. Smith, J.

text:
    [864 NE2d 1261, 832 NYS2d 862]
    In the Matter of John J. O’Shea, Appellant, v Board of Assessors of Nassau County et al., Respondents. In the Matter of Jack Minkoff et al., Appellants, v County of Nassau et al., Respondents, et al., Respondents. In the Matter of Harry Briffel et al., Appellants, v County of Nassau et al., Respondents.
    Argued January 11, 2007;
    decided February 13, 2007

      POINTS OF COUNSEL

      John J. O’Shea, Manhasset, appellant pro se in the first above-entitled proceeding.
    The lower court erroneously interpreted Real Property Tax Law § 1805 (1). (Matter of Nuzzolese v Board of Assessors of County of Nassau, 172 AD2d 611; Matter

      of Meadowbrook Plaza Assoc. v Board of Assessors, 174 AD2d 744.)

      Fred N. Perry, Dix Hills, for appellants in the second above-entitled proceeding.
    I. The court below nullified RPTL 1805 and frustrated its legislative purpose contrary to primary statutory construction laws and principles. (National Org. for Women v Metropolitan Life Ins. Co., 131 AD2d 356, 70 NY2d 939; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Matter of Christopher F., 260 AD2d 97; Matter of Town of New Castle v Kaufmann, 72 NY2d 684; Matter of New York State Dormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 86 NY2d 72; Matter of OnBank & Trust Co., 90 NY2d 725; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1.) II. The RPTL defines “assessment” as the full valuation of property, or at minimum, includes full valuation within its definition. (Matter of New York State Dormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 86 NY2d 72; Matter of STG Corp. v Town of Greenville, 190 Misc 2d 634; Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791; Matter of Robert J., 2 NY3d 339.)

      Daniel J. Dillon, Lido Beach, for appellants in the third above-entitled proceeding.
    I. The intermediate appellate court concluded that the trial court manipulated the equalization rate so as to defeat the application of Real Property Tax Law § 1805. But because the statute did not expressly prohibit it, the action was regarded as authorized. This is a violation of all conventional statutory and judicial mandates regarding legislative interpretation. (Desiderio v Ochs, 100 NY2d 159; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; N.Y.A.A.D., Inc. v State of New York, 1 NY3d 245; Foss v City of Rochester, 65 NY2d 247; Matter of New York State Dormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 86 NY2d 72; People v Garson, 6 NY3d 604.) II. The City of New York has continuously followed the limits on assessment increases since the passage of Real Property Tax Law § 1805. Nassau County effectively exempted itself from the law between tax years beginning January 2003 and January 2005. As of tax year beginning January 2006 Nassau County began to apply the limitations of section 1805. (Matter of Michael B., 80 NY2d 299.)

      Loma B. Goodman, County Attorney, Mineola (Dennis J. Saffran of counsel), for respondents in the first, second and third above-entitled proceedings.
    The term “assessment” in RPTL 1805 means a property’s “fractional assessment” at a percentage of full value pursuant to RPTL 305, not appraisal of its full market value. (Desiderio v Ochs, 100 NY2d 159; Bryant v New York City Health & Hosps. Corp., 93 NY2d 592; Khela v Neiger, 85 NY2d 333; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; 41 Kew Gardens Rd. Assoc. v Tyburski, 70 NY2d 325; Foss v City of Rochester, 65 NY2d 247; City of New York v New York State Div. of Hous. & Community Renewal, 97 NY2d 216; Matter of Gruber [New York City Dept. of Personnel— Sweeney], 89 NY2d 225; Matter of New York State Dormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 86 NY2d 72; Matter of STG Corp. v Town of Greenville, 190 Misc 2d 634.)
   OPINION OF THE COURT

Read, J.

The thousands of petitioners in these three proceedings are owners of residential real property in Nassau County. As a result of a countywide revaluation mandated by a stipulation of settlement in Coleman v County of Nassau (Sup Ct, Nassau County, Mar. 29, 2000, Winslow, J., Index No. 97-30380), the appraised or full market value of their homes soared, often at least doubling. Petitioners complain that respondents County of Nassau, Board of Assessors of Nassau County and Nassau County Assessment Review Commission (collectively or individually referred to as the County) thus violated Real Property Tax Law § 1805 (1), which limits increases on assessments on residential property in Nassau County to not more than six percent per year and 20% over any five-year period. Supreme Court dismissed the petitions, and the Appellate Division affirmed, with two Justices dissenting. Petitioners appealed as of right, and we now affirm.

I.

This appeal takes us back three decades to our decision in Matter of Hellerstein v Assessor of Town of Islip (37 NY2d 1 [1975]), which became “something of a cause célebre for critics of the property tax” (Beebe and Sinnott, In the Wake of Heller-stein: Whither New York? Part One, 43 Alb L Rev 203, 204 [1979]). In Hellerstein, we considered whether the Town of Is-lip’s long-standing practice of assessing real property at some fraction of its full or fair market value was valid in light of the statutory mandate that all real property in New York State be assessed at full market value and taxed at a uniform rate within a single taxing jurisdiction (see former RPTL 306). We held that it was not. We recognized the potentially disruptive effects of our decision, however, and so refused to invalidate the specific assessment roll at issue. We gave the Town until December 31, 1976 to conform to the statute, allowing it to continue its existing practice of fractional assessment in the interim, and declaring that any ensuing “tax levies, hens, foreclosures or transfers based on such assessments” were immune from challenge for failure to comply with the law (37 NY2d at 14).

Because of the ubiquity of fractional assessment, our decision in Hellerstein reverberated throughout the state. Under a hodgepodge of fractional assessment regimes that had proliferated over the years, localities routinely assessed commercial and industrial property at higher ratios (assessed value over market value) than residential property. But as a result of Hellerstein, all real property would be subject to the same effective tax rate, or taxes per dollar of full market value. As reflected in the extensive newspaper coverage of the time, there was widespread fear that, without ameliorative legislative action, Hellerstein would force an unwelcome shift of a significant portion of the property tax burden from businesses to homeowners (see e.g. Kaiser, Issue and Debate, Assessing Real Estate for Taxation at 100 Percent of Full Market Value, New York Times, Mar. 10, 1976, at 32; Shaman, Revaluation’s Impact on the Homeowner, New York Times, Apr. 15, 1979, at LI1). At the same time, Nassau County, which valued its residential property using 1938 construction costs less depreciation plus the land’s market value as of 1964, faced an onslaught of tax certiorari suits brought by commercial and industrial property owners. In these suits, the petitioners challenged their property tax assessments on the ground of inequality, claiming that the County had assessed their properties well above the state equalization rate while assessing homes well below it; they sought refunds of back taxes potentially costing the County hundreds of millions of dollars (see e.g. 860 Executive Towers v Board of Assessors of County of Nassau, 53 AD2d 463 [2d Dept 1976], affd sub nom. Matter of Pierre Pellaton Apts. v Board of Assessors of County of Nassau, 43 NY2d 769 [1977] [reaffirming that state equalization rate may be used as sole basis for determining ratio of assessed value to full value in an assessment challenge on the ground of inequality]).

After six years of fits and starts, legislative moratoria and studies and task force reports, the Legislature overrode a gubernatorial veto to enact chapter 1057 of the Laws of 1981. This statute repealed section 306 of the Real Property Tax Law, the provision that had required full value assessment; added a new section 305 (2) to specify generally that “[a]ll real property in each assessing unit shall be assessed at a uniform percentage of value (fractional assessment)”; and, as relevant here, added a new article 18 to apply to special assessing units, by definition limited to New York City and Nassau County (see RPTL 1801 [a] ).

Article 18 allowed special assessing units to apply different fractional assessment percentages to each of four classes of property: one-, two- and three-family residential property (class one); all other residential property except hotels and motels and other similar commercial property (class two); utility property (class three); and all other (class four) (see RPTL 1802). Article 18 was “designed to maintain the stability of relative property class tax burdens” (Budget Report on Bills, at 1, Bill Jacket, L 1981, ch 1057). In general, article 18 authorized a special assessing unit to fix class shares using the tax roll for the 1981-1982 levy, with leeway to increase or decrease shares in subsequent years up to five percent to accommodate changes in the roll or new construction (former RPTL 1803); and to increase individual assessments for class one property as limited by section 1805 (1), which states that

“[t]he assessor of any special assessing unit shall not increase the assessment of any individual parcel classified in class one in any one year, as measured from the assessment on the previous year’s assessment roll, by more than six percent and shall not increase such assessment by more than twenty percent in any five-year period.”

Further, the statute eliminated the use of the state equalization rate as evidence of inequality in future tax certiorari proceedings against special assessing units (see former RPTL 720 [3] [b] , [c]; see also, RPTL 720 [3]).

The bill subsequently enacted as chapter 1057 was extremely controversial. It was the subject of extensive debate upon its initial adoption, and also upon its reenactment by two-thirds vote after the Governor’s veto. Members of the Assembly and Senators expressed the sentiment that, despite its imperfections, this bill was “the only ball game in town” to prevent a dramatic shift of real property taxes from businesses to homeowners, and provide a high degree of stability in the relative tax burdens of these categories of taxpayers (see NY Assembly Debate on Senate-Assembly Bill S7000-A, A9200, Oct. 28, 1981, at 12,797, 12,799, 12,801, 12,803; Dec. 3, 1981, at 13,474, 13,483-13,484; NY Senate Debate on Senate-Assembly Bill S7000-A, A9200, Oct. 28, 1981, at 7,505-7,506, 7,516-7,519, 7,549-7,550; Dec. 3, 1981, at 8,107, 8,111).

The County’s representatives in the Legislature sought certain specific assurances from the bill’s advocates in both houses. The following colloquy took place between Assemblyman Parola and Assemblyman Hochbrueckner, the bill’s champion in the Assembly:

“mr. parola: . . . [M]y questions really relate directly to Nassau County and its unique situation. Will, under this bill, 7000-A, if the Governor signs it into law, will it reverse the present court order requiring Nassau County to reassess its real property?
“mr hochbrueckner: In response to your question, yes, it will.
“mr parola: Second question[.] [U]nder the language of 7000-A will Nassau County be able to continue its present method of assessing all real property based on construction costs as it has in the past?
“mr hochbrueckner: Yes, again” (NY Assembly Debate on Senate-Assembly Bill S7000-A, A9200, Oct. 28, 1981, at 12,837-12,838).

Similarly, in the Senate debate on October 28, 1981, Senator Levy asked Senator Anderson, the bill’s main proponent in the upper chamber, if he would yield to two questions from him and three colleagues, which they were “asked to present” by the Chairman of the Board of Assessors of Nassau County “for purposes of establishing legislative intent”:

“senator levy: The first question is, will Senate 7000A if signed into law by the Governor reverse the present court order requiring Nassau County to reassess its real property?
“senator anderson: Yes. And the reason is that we are repealing Section 306 by the very act before us.
“senator levy: Thank you Senator. The second question is, under the language of 7000A, will Nassau County be able to continue its present method of assessing real property based on construction cost?
“senator anderson: Yes” (NY Senate Debate on Senate-Assembly Bill S7000-A, A9200, Oct. 28, 1981, at 7,510).

Subsequently, Senator Levy broadened his question by asking whether the County would “be able to continue its present method of assessing all real property based on construction costs,” and Senator Anderson again answered affirmatively (id. at 7,582 [emphasis added]).

II.

While Hellerstein and its aftermath bear critically on this appeal, Coleman is, of course, its mainspring. As already noted, Nassau County for many decades based the valuation of residential property on 1938 construction costs less depreciation plus the land’s market value as of 1964. That is, valuation was tied into replacement cost and was completely divorced from current market value. On October 30, 1997, the Coleman plaintiffs sued the County in state court under federal civil rights and fair housing statutes and the Nassau County Charter. They contended that because market values for houses in affluent areas had increased sharply while market values had remained stagnant or declined in low-income areas, poor and minority homeowners were shouldering a disproportionate and discriminatory share of the countywide property tax burden. The United States and the State of New York intervened in the action to support the plaintiffs’ position.

The parties in this widely reported case eventually entered into a stipulation of settlement, approved by Supreme Court on March 29, 2000. Under paragraph II (1) of the Coleman decree, the County agreed to “update and modernize [its] assessment rolls for residential properties,” and to “adopt a revaluation system and tax assessment roll to that end that [was] fair, nondiscriminatory, scientific and equitable,” and imposed a uniform percentage of value or fractional assessment, consistent with standards adopted by the Office of Real Property Services, based on fair market value. The decree contemplated completion of the called-for mass revaluation in time for the assessment roll to be published on January 1, 2003, and set numerous interim benchmarks to facilitate meeting this deadline. The decree remained in effect and Supreme Court retained jurisdiction for three years following adoption of the new assessment roll.

Paragraph II (7) of the decree, which is at the core of petitioners’ complaints on this appeal, committed the County, at the end of its revaluation work and in time to meet the January 1, 2003 implementation date, to

“submit to the parties and the Court, for approval, a new Class I residential property real estate tax assessment roll that (i) relies upon fair market value; (ii) meets the requirements of par. II (1) [i.e., that was fair, nondiscriminatory, scientific, equitable, etc.] . . . , and (iii) assesses all Class I residential property in [the County] at a uniform percentage of value (fractional assessment) such that the uniform application of such fractional assessment rate does not result in any assessment for any individual parcel of Class I residential property that would require the application of RPTL 1805 to limit any assessment, except that if the fractional assessment rate selected results in not more than .5% of the total residential properties being subject to the limitations of RPTL 1805, such rate shall not be considered in violation of this paragraph.”

As noted previously, section 1805 (1) caps assessment increases for residential property to no more than six percent per year and 20% in five years. The parties included paragraph II (7) to make sure that the County crafted the new assessment roll in such a way as to limit the operation of section 1805 (1). Otherwise, homeowners whose real property had historically been overassessed would have continued for many more years to subsidize homeowners whose real property had historically been underassessed (e.g., older houses in more affluent communities). Of course, the entire goal of the Coleman decree was to eliminate this inequity, not to lock it in for the foreseeable future.

The only way for the County to comply with paragraph II (7) was to lower the fraction by which every residential parcel’s full market value was to be multiplied to fix the assessed value. The tax rate would then be applied to the assessed value to compute the homeowner’s taxes. To that end, on October 25, 2002 the County adopted a fractional assessment percentage or rate of one percent of full market value. In November 2002 the County submitted its proposed 2003 reassessment roll to Supreme Court for its approval, as required by the Coleman decree. The assessed values on the January 1, 2003 assessment roll were less than 106% of those on the January 1, 2002 roll for all but about 0.47% of the residential properties revalued. Following several days of hearings, the court conditionally approved the new roll in an order dated December 20, 2002, and it went into effect on January 1, 2003. On March 8, 2003, the court adhered to its earlier order approving the roll, with a few modifications not relevant to this case.

As a result of the Coleman decree, the County reassessed 368,043 residential (as well as 44,881 commercial) parcels over a three-year period at a cost of roughly $35 million. As Supreme Court noted, this enormous undertaking embraced “site visits, photographs, sketches, inspection of public records, collection of massive amounts of data for appraisal analysis, a comprehensive public information campaign that included a web site, informal in-person tax-payer review-of-value procedures, and the creation and utilization of a new computer software-enabled property valuation system” (Coleman v County of Nassau, supra, slip op at 4 [Mar. 8, 2003]).

III.

None of the petitioners appeared at the approval hearing for the new assessment roll, or submitted comments to Supreme Court to oppose its adoption. Instead, they commenced these proceedings seeking tax refunds several months after the new assessment roll — the fruit of the well-known, three-year, $35 million revaluation venture — was put in place.

The County’s plan for complying with both the Coleman decree and Real Property Tax Law § 1805 (1) was never a secret. As petitioners concede, the County’s only option was to lower the fractional assessment percentage for class one property. As a result of doing this, the County limited the number of residential parcels with fractional assessments exceeding the six percent cap. But petitioners contend that the word “assessment” in section 1805 (1) can only mean full valuation or full market value or appraised fair market value, not fractional assessment; and while their fractional assessments for 2003 did not exceed their fractional assessments for 2002 by more than six percent, the assessed full value of their houses increased dramatically from 2002 to 2003, as did their taxes. They argue that the County’s interpretation eviscerates or nullifies section 1805 (1), which the Legislature enacted to protect taxpayers from just the kind of sudden and drastic tax increases that they experienced.

As the Appellate Division pointed out, however, section 1805 (1) “places no limits on changes in the fractional assessment rate, which is set by the assessing unit, nor does it limit the ultimate tax to be imposed” (31 AD3d 79, 81 [2d Dept 2006]). Indeed, chapter 1057 of the Laws of 1981, adopted in response to Hellerstein, was principally aimed at protecting residential taxpayers from tax increases caused by tax shifts from businesses to homeowners as a result of revaluation, not tax increases driven by market forces. Similarly, in article 18, the Legislature sought to stabilize businesses’ and homeowners’ respective shares of the real property tax burden (see NY Assembly Debate on Senate-Assembly Bill S7000-A, A9200, Oct. 28, 1981, at 12,823-12,824, 12,844-12,847). This was particularly important for the County, which was beset by extensive tax certiorari litigation that threatened to saddle homeowners with a considerably larger share of the tax levy. In their questions during the Assembly and Senate debates, the County’s legislative representatives were careful to establish that the County would no longer be required to revalue, and that chapter 1057 would cure or short-circuit its litigation woes.

Concomitantly, the legislative history does not in any way suggest that section 1805 (1) was expected to limit the distribution of the tax burden within the class of residential taxpayers, or to hamstring a special assessment unit from curing inequities within this class. Indeed, there is evidence in the record, which petitioners never disputed with evidence (as opposed to assertions), that what the County did here reflected a settled understanding of section 1805 (1) — that New York City, the only other special assessing unit in the state, lowered its class one fractional assessment percentage from 28% to 8% over a period of time in order to bring assessed values for residential taxpayers in line with market values, just as the County did here.

Next, throughout the legislative debate discussion of “assessments” referred to fractional assessments. In particular, section 1805 (1) applied only to the County and New York City, both of which had historically assessed property at percentages of market value (see discussion at 255-256, supra; Willis, Tax Certiorari Proceedings and the Present Real Property Tax System in New York City, 9 Fordham Urb LJ 591 [1980-1981]). Since the statute was intended to permit them to continue this practice, it makes little sense to read this provision as referring to market value rather than fractional assessment. In addition, as the County points out, in 1981 the only “assessment” of a property that appeared on the assessment roll was its fractional assessed value (see RPTL 502 [3] [1981], as enacted by L 1958, ch 959). The Legislature did not amend section 502 (3) to require disclosure on the roll of a parcel’s “full value” as well as its assessed valuation until 1999 (see L 1999, ch 611). Along the same lines, many statutes enacted by the Legislature since 1981 recognize the distinction between “assessed value” and “market value” (see e.g. RPTL 1803-a [2] [a] [1]; [b] [1]; [3] [b] [1]; 701 [8] [b]; 922 [1] [a] [iii]).

Petitioners rely on Real Property Tax Law § 102 (2) to equate assessment with full value. As the Appellate Division observed, however, this provision defines assessment as

“ ‘a determination made by assessors of . . . the valuation of real property’ (emphasis added) not the full market value of the property. In other places, when the term full value or full market value is used in the RPTL (see e.g. RPTL 305, 502 [3]) it juxtaposes that to the terms ‘assessed valuation’ or ‘total assessed valuation.’ Were the petitioners correct, there would be no need to use all of these terms. The statute could have used only full market value” (31 AD3d at 82).

Finally, the dissent protests that we have allowed the County to exploit a loophole in section 1805 (1) whereby the County “leave[s] Mrs. Jones’s assessment the same, cut[s] everyone else’s assessment in half, and doublets] the tax rate. Now everyone pays the same tax as last year except for Mrs. Jones, who pays double” (dissenting op at 261). What the dissent fails to point out, however, is that this is so only if the full market value of Mrs. Jones’s house has doubled over time while the full market value of everyone else’s house has not, yet Mrs. Jones and everyone else have all been paying the same property taxes because their fractional assessments have remained the same. Thus, Mrs. Jones has for some time been paying less than her equitable share of the residential portion of the tax levy. We do not mean to minimize the hypothetical Mrs. Jones’s hardship when her taxes doubled in a single year, but the dissent would have us rewrite section 1805 (1) so as to preclude the County from doing what it did here: bring assessed values in line with market values over three years in order to reduce accumulated and significant tax disparities between poorer and more affluent residential areas, without changing the tax burden of the residential class as a whole.

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

Smith, J.

(dissenting). I agree with Justices Spolzino and Lifson, dissenting in the Appellate Division, that the interpretation of RPTL 1805 (1) advanced by Nassau County, and now adopted by the majority of this Court, eviscerates the statute.

Section 1805 (1) says:

“The assessor of any special assessing unit shall not increase the assessment of any individual parcel classified in class one in any one year, as measured from the assessment on the previous year’s assessment roll, by more than six percent and shall not increase such assessment by more than twenty percent in any five-year period.”

The purpose of the statute could not be clearer: It is to protect property owners from tax increases by limiting increases in their assessments. The protection is not absolute, of course. It is possible to increase taxes without increasing assessments — by increasing tax rates. But since tax rates are the same for everyone, a jurisdiction subject to section 1805 (1) cannot increase the tax on, say, Mrs. Jones’s house by more than six percent in one year unless it increases everyone else’s taxes too.

That, at least, is what the Legislature evidently thought when it enacted section 1805 (1). But Nassau County thinks it has discovered a way around the statute: Just leave Mrs. Jones’s assessment the same, cut everyone else’s assessment in half, and double the tax rate. Now everyone pays the same tax as last year except for Mrs. Jones, who pays double. Incredibly, the majority today holds that this gimmick works. Section 1805 (1) is as useless as if it had never been passed.

To uphold what the County has done the majority must first decide that “assessment” in the statute does not mean “assessed value” — the actual value of the property as determined by the assessor — but “fractional assessment” — the amount obtained after assessed value is multiplied by a percentage. The key, of course, is that the assessed value cannot be changed arbitrarily, but the percentage used to multiply it, and thus the fractional assessment, can be.

The term “assessment” can be used to mean either assessed value or fractional assessment, and indeed is used in both senses in the Real Property Tax Law. RPTL 701 (4) (a) defines “excessive assessment” to mean “an entry on an assessment roll . . . which exceeds the full value of real property”; RPTL 701 (8) (b) defines “unequal assessment” to mean “an entry on the assessment roll . . . made at a higher proportionate valuation than the assessed valuation of other real property in the same class . . . .” Obviously, “assessment” is used to mean assessed value in the first of these statutes, and fractional assessment in the second. If we must choose between the two definitions in interpreting RPTL 1805 (1), we should choose the one that prevents an assessing jurisdiction from frustrating the purpose of the statute.

But we do not even have to choose. Assume for the sake of argument that “assessment” means fractional assessment; the statute still requires that any increase in assessment be “measured from the assessment on the previous year’s assessment roll.” Can anyone doubt that what the Legislature intended was a meaningful year-to-year comparison, not a meaningless one? But the comparison is meaningless unless the percentage used to determine the fractional assessment is held constant from year to year. In other words, if the statute requires comparing fractional assessments, it must require a comparison of fractional assessments obtained by using the same fraction for each year. To hold otherwise is to license blatant evasion. It is as though a statute provided that Nassau County’s budget could not increase by more than six percent from year to year, and Nassau County had sought to comply by stating the first year’s budget in dollars and the second year’s in British pounds.

The majority opinion, for understandable reasons, never addresses the absurdity that results from its reading of RPTL 1805 (1). The majority does not even suggest that the statute, as it has now been interpreted, can effectively serve any function whatever. Instead, the majority spends considerable space on subjects irrelevant to the issue we have to decide.

Thus, our decision in Matter of Hellerstein v Assessor of Town of Islip (37 NY2d 1 [1975]) is indeed an important milestone in the history of New York real property taxation, and it is quite true that RPTL article 18, in which section 1805 (1) is contained, was part of the reaction to that decision (majority op at 252-256). It is also true that the Legislature that passed article 18 was much concerned with the allocation of taxes between classes of property — specifically, businesses and homes (id. at 259). But I do not see how any of this is of the slightest help in deciding this case. Section 1805 (1) says nothing about the allocation of tax burdens between classes. Its explicit and only subject is “the assessment of any individual parcel classified in class one”; the other classes are unmentioned. If, as the majority suggests, the legislators of New York had no desire to “limit the distribution of the tax burden within the class of residential taxpayers” (majority op at 259), what on earth did they pass this statute for?

Nor is it relevant that petitioners here did not protest sooner than they did against what the County has done to them. The majority says that “[n]one of the petitioners appeared at the approval hearing for the new assessment roll, or submitted comments to Supreme Court to oppose its adoption” (id. at 258); it also says that the Coleman class action litigation was “widely reported” (id. at 256). But the record does not indicate that petitioners were parties to or were ever asked for their views in the Coleman case, or that they knew or should have known that, as part of the settlement, a state statute was being tossed aside. It is undisputed that petitioners had no obligation to raise the issues they now raise at any earlier time. There is no basis for a laches argument here, and the majority does not say there is. The majority’s comments about petitioners’ inactivity are pure atmosphere.

The majority notes that the settlement of the Coleman litigation is the “mainspring” of this case (id.). It is indeed. In their efforts to settle the Coleman case, the parties to that case, and the court before which it was pending, found RPTL 1805 (1) to be a serious inconvenience. In an order approving, with some modifications, the tax roll that resulted from this settlement, Supreme Court spoke with surprising candor: “A difficulty arises . . . because RPTL 1805 prohibits assessment increases of more than 6% for any individual parcel in any one year. Application of this statutory ceiling to under-assessed properties would thus frustrate the very clear purposes of the [settlement].”

Rather than allow the statute to “frustrate” their “purposes,” the Coleman parties and court decided to nullify it. Unfortunately, this Court has now approved their effort. Part of the problem, of course, is that the Coleman settlement has already been implemented, at great trouble and expense. I can understand the majority’s reluctance to hold that a countywide reassessment of “368,043 residential . . . parcels over a three-year period at a cost of roughly $35 million” (majority op at 258) was illegal. But I would not accept Nassau County’s invitation to pull it out of the hole it has dug for itself. If it needs rescuing, it should turn to the Legislature.

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

In each case: Order affirmed, with costs.

      . Chapter 1057 also enacted a new article 19 of the Real Property Tax Law. This provision “pertain[ed] to upstate municipalities that decide[d] a full revaluation program [was] necessary,” and was tailored “to avoid a shift of [the] property tax burden to residential property from other property classes as a result of a revaluation program” (Budget Report on Bills, at 2, Bill Jacket, L 1981, ch 1057). Article 19 accomplished this goal by providing for an optional two-class taxing structure (see Foss v City of Rochester, 65 NY2d 247 [1985]).

      . According to petitioners, the comparable rate in 2002 was 2.11%.