source: Caselaw Access Project

author: G.B. Smith, J. Rosenblatt, J.

license: Public Domain

text:
    [838 NE2d 635, 804 NYS2d 719]
    Glenbriar Co., Appellant, v S. Lee Lipsman et al., Respondents.
    Argued September 14, 2005;
    decided October 20, 2005

      POINTS OF COUNSEL

      Mitofsky, Shapiro, Neville & Hazen LLP, New York City (Terry L. Hazen of counsel), for appellant.
    I. Review of the instant case, construed in light of the body of case law dealing with nonprimary residence, requires reversal. II. Case law is replete with decisions indicating that findings of fact made by the trial court should not be disturbed on appeal, especially based on credibility issues. (Matter of Stork Rest. v Boland, 282 NY 256; Matter of 780 P.P. Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 11 AD3d 392; Schilt v New York City Tr. Auth., 304 AD2d 189; Corson v City of New York, 290 AD2d 408; Hurley v Cavitolo, 239 AD2d 559; Nelson v Times Sq. Stores Corp., 110 AD2d 691; Matter of Yovanny G., 303 AD2d 336.)

      Elizabeth A. Shollenberger, White Plains, for respondents.
    I. Lillian Lipsman has maintained an ongoing substantial physical nexus with the subject apartment, which she has used and uses for actual living purposes. (Emay Props. Corp. v Norton, 136 Misc 2d 127; Sommer v Ann Turkel, Inc., 137 Misc 2d 7; Berwick Land Corp. v Mucelli, 249 AD2d 18; Cox v J.D. Realty Assoc., 217 AD2d 179; East End Temple v Silverman, 199 AD2d 94; Briar Hill Apts. Co. v Teperman, 165 AD2d 519; Wonko Realty Corp. v Estate of Dreisch, 150 Misc 2d 1046; West 157th St. Assoc. v Sassoonian, 156 AD2d 137.) II. Spouses need not maintain the same legal residence. (Matter of Rose Assoc. v State Div. of Hous. & Community Renewal, Off. of Rent Admin., 121 AD2d 185, 69 NY2d 601; Peck v Wolf, 157 AD2d 535; 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109; Newport Apts. Co. v Schechter, 124 Misc 2d 760, 127 Misc 2d 793; Chelsmore Apts. v Garcia, 189 Misc 2d 542.) III. The appellate courts’ decisions below comport with long-standing precedents involving snowbirds. (Newport Apts. Co. v Schechter, 124 Misc 2d 760, 127 Misc 2d 793; Four Winds Assoc. v Rachlin, 248 AD2d 352.) IV Tax filings are not dispositive proof of residence. (West 157th St. Assoc. v Sassoonian, 156 AD2d 137; Village Dev. Assoc. v Walker,
      282 AD2d 369; 300 E. 34th St. Co. v Habeeb, 248 AD2d 50; Matter of Rose Assoc. v State Div. of Hous. & Community Renewal, Off. of Rent Admin., 121 AD2d 185, 69 NY2d 601; 23 Jones St. Assoc. v Keebler-Beretta, 284 AD2d 109; Four Winds Assoc. v Rachlin, 248 AD2d 352.) V Temporary justifiable absences from New York—even long absences—do not amount to a change in a tenant’s primary residence. VI. The trial court decision herein contains errors of law and of fact and cannot be upheld. (318 E. 93 v Ward, 276 AD2d 277; Peck v Wolf, 157 AD2d 535; Matter of Calvi v Knutson, 195 AD2d 828; Four Winds Assoc. v Rachlin, 248 AD2d 352; Coronet Props. Co. v Brychova, 122 Misc 2d 212, 126 Misc 2d 946; Ascot Realty LLC v Richstone, 10 AD3d 513.) VII. The landlord failed to meet its burden of proof. (318 E. 93 v Ward, 21 & AD2d 277; Calvi v Knutson, 195 AD2d 828; Acorn Realty v Torres, 169 Misc 2d 670; Shuk Ying Sy v Doe, 4 Misc 3d 139[A].) VIII. Cases cited by landlord are easily factually distinguishable. (Berwick Land Corp. v Mucelli, 249 AD2d 18; Emel Realty Corp. v Carey, 288 AD2d 163.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue here is whether the petitioner landlord established that respondent tenants of a rent-stabilized apartment were not using the premises as their primary residence as required by the Rent Stabilization Code. The Appellate Term, affirmed by the Appellate Division, found that the landlord had not met its burden, and that finding is beyond our power to review. We, therefore, affirm the order of the Appellate Division.

In 1959, S. Lee Lipsman and his wife, Lillian Lipsman, moved into an apartment in the Bronx. In 1971, the building became subject to the rent stabilization laws and the Lipsmans became rent-stabilized tenants. In 1984, the building became a cooperative, but the Lipsmans did not purchase shares and chose to maintain their rent-stabilized status. The shares associated with the apartment were purchased by petitioner. In 1995, the Lipsmans purchased an apartment in West Palm Beach, Florida for approximately $20,000.

In 1999, the landlord served notice pursuant to the Rent Stabilization Code (9 NYCRR 2524.2 [c] [2]) that it would not renew the Lipsmans’ lease because the premises were not being used as their primary residence. Subsequently, a holdover proceeding was brought in the Civil Court of the City of New York seeking to evict the Lipsmans on the ground that the apartment was not being used as their primary residence.

At a hearing on the petition, the landlord presented only one witness from the management company, who claimed never to have seen the Lipsmans in their apartment. However, he did not work full time at the building and could not verify how many people living in the building he knew. The landlord also presented documentary evidence of Mr. Lipsman’s Florida driver’s license, tax returns filed from the Florida residence signed by Mrs. Lipsman, and statements by Mr. Lipsman that the Florida residence was the primary residence for purposes of receiving the Florida homestead exemption. The Lipsmans asserted that Mr. Lipsman (who died in 2005) had his primary residence in Florida because of his emphysema but argued that Mrs. Lipsman remained a primary resident of New York, spending at least 183 days a year here, and maintaining bank accounts, family possessions (including furniture, china, photographs and clothing) and her voting residence in New York. They further provided evidence that the apartment was never sublet. Mrs. Lipsman testified that she does not drive or have a license.

Civil Court determined that tenants were not using the apartment as their primary residence as required by Rent Stabilization Code § 2524.4 (c) and ordered possession to the landlord. Appellate Term reversed and granted the landlord’s motion for leave to appeal to the Appellate Division. On October 21, 2004, the Appellate Division affirmed the Appellate Term order, stating:

“Mrs. Lipsman has kept a consistent presence at the Bronx apartment, and has continually maintained it as her primary residence. It is well settled that husband and wife may establish two separate primary residences without penalty. The fact that the Lipsmans may have what has been referred to as a ‘conventional’ marriage does not deprive them of the right to declare separate primary residences under law.
“Further, as aptly stated in the Appellate Term decision, ‘this case presents a not uncommon “snowbird” situation’ where an elderly tenant purchases a Florida property for use during the winter and/or for vacations. However, the decision to spend winters in Florida with her husband, should not, under the circumstances, have the corollary effect of causing Mrs. Lipsman to forfeit her principal residence of long standing in New York.” (11 AD3d 352, 353-354 [2004] [citations omitted].)

The Appellate Division denied landlord’s motion for reargument but granted leave to appeal to this Court, certifying the question, “Was the order of this Court, which affirmed the order of the Appellate Term of the Supreme Court, properly made?” We now affirm.

Our review of this case is circumscribed by the manner in which the appeal comes to us. The case was tried in the Civil Court of the City of New York. Subsequently, Appellate Term reversed the judgment and the Appellate Division affirmed. The Court of Appeals is a law court and ordinarily does not review facts except in a limited class of cases (NY Const, art VI, § 3). Where the Appellate Division reverses a trial court, this Court may review the facts to determine which court’s determination more closely comports with the evidence. But where, as here, there are affirmed findings of fact supported by the record, even though the original Civil Court was reversed by Appellate Term, this Court cannot review those facts and substitute its own findings. This limitation on our jurisdiction is dispositive here, as the legal sufficiency of the evidence is not before us.

The Rent Stabilization Code (9 NYCRR 2524.4 [c]) requires that a premises be used by a tenant as a primary residence and authorizes a landlord to recover possession of premises when:

“The housing accommodation is not occupied by the tenant, not including subtenants or occupants, as his or her primary residence, as determined by a court of competent jurisdiction; provided, however, that no action or proceeding shall be commenced seeking to recover possession on the ground that the housing accommodation is not occupied by the tenant as his or her primary residence unless the owner or lessor shall have given 30 days’ notice to the tenant of his or her intention to commence such action or proceeding on such grounds. Such notice may be combined with the notice required by section 2524.2 (c) (2) of this Title” (9 NYCRR 2524.4 [c]).

The landlord has the burden of showing, by a preponderance of the evidence, that the tenants did not use the apartment as a primary residence. No single factor must be shown for the landlord to prevail. It may do so by presenting evidence such as tax returns filed from another address, drivers’ licenses, voting residences and the subletting of an apartment allegedly used as a primary residence (see Rent Stabilization Code § 2520.6 [u]). The tenant may rebut the landlord’s evidence and demonstrate that there was a substantial physical nexus to the apartment (see Draper v Georgia Props., 94 NY2d 809, 811 [1999]).

Landlord argues that the tenants maintained the apartment for convenience only and not for a primary residence. Landlord argues further that since the tenants had bank accounts, filed taxes, obtained a driver’s license and applied for and received a homestead exemption in Florida, the primary residence was in Florida and not New York. Landlord also maintains that the testimony of the Lipsmans was not credible because there were discrepancies in the evidence as to the time that Mrs. Lipsman left New York each year and the time that she returned.

Landlord points to some troubling facts: Mr. Lipsman (the recipient of all of the couple’s income) claimed Florida as his principal residence, and obtained a tax advantage by doing so, while Mrs. Lipsman claimed to reside primarily in New York. Yet the Lipsmans were rarely physically separated; Mrs. Lips-man acknowledged at her deposition that she had spent one week apart from her husband in the preceding calendar year.

In this case, however, no issue is presented to us as to the inferences or legal implications that might follow from these facts. The landlord does not claim that the evidence was insufficient to support the affirmed finding that the landlord failed to meet its burden of showing that New York was not Mrs. Lips-man’s primary residence, or present any other persuasive claim of legal error. On this record, we are bound by the finding below, which requires an affirmance of the Appellate Division’s order.

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should be not answered on the ground that it is not necessary.

Rosenblatt, J.

(concurring). Because the Appellate Division has affirmed on findings of fact of the Appellate Term, I am constrained to concur in the Court’s opinion (see majority op at 390, 393-394).

I appreciate the stated desire of the Lipsmans to keep their rent-stabilized apartment so that, among other benefits, their children may maintain ties with the home in which they were raised. On the other hand, I also sympathize with those who cannot afford a similar apartment in which to raise their own families, a plight exacerbated by tenants availing themselves of stabilized or controlled rents for New York apartments while simultaneously maintaining a primary residence in another state.

An apartment should not be decontrolled merely because its tenants are retired and want to spend some of the colder months in a warmer climate. I write separately, however, to highlight the unseemly prospect of spouses living together yet claiming two separate primary residences (here, one in Riverdale and one in West Palm Beach) in order to take advantage of the mutually exclusive benefits of two jurisdictions.

The Lipsmans concede that both Florida’s homestead exemption and New York City’s rent stabilization laws apply only to a primary residence. Here, the benefits of both were claimed. There are many bona fide arrangements in which one spouse can honestly take advantage of one state’s laws and the other spouse the other state’s. Spouses need not share a primary residence, and legitimate arrangements of that kind should be recognized. The open possibility, however, of manipulation and gaming of the system—as suggested by this record—is dismaying.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge G.B. Smith; Judge Rosenblatt concurs in a separate opinion in which Judge R.S. Smith also concurs.

Order affirmed, with costs. Certified question not answered upon the ground that it is unnecessary.

       The Rent Stabilization Code (9 NYCRR 2520.6 [u]) provides: “Primary residence. Although no single factor shall be solely determinative, evidence which may be considered in determining whether a housing accommodation subject to this Code is occupied as a primary residence shall include, without limitation, such factors as listed below:
      “(1) specification by an occupant of an address other than such housing accommodation as a place of residence on any tax return, motor vehicle registration, driver’s license or other document filed with a public agency;
      “(2) use by an occupant of an address other than such housing accommodation as a voting address;
      “(3) occupancy of the housing accommodation for an aggregate of less than 183 days in the most recent calendar year, except for temporary periods of relocation pursuant to section 2523.5 (b) (2) of this Title; and
      “(4) subletting of the housing accommodation.”


author: Rosenblatt, J.

text:
    [838 NE2d 629, 804 NYS2d 713]
    Tomáz Mendes Regatos, Respondent, v North Fork Bank et al., Appellants, et al., Defendant.
    Argued September 8, 2005;
    decided October 20, 2005

      POINTS OF COUNSEL

      Wickham, Bressler, Gordon & Geasa, EC., Melville (Eric J. Bressler of counsel), for appellants.
    I. The one-year statute of repose contained in UCC 4-A-505 may be varied by agreement. II. The Commercial Bank of New York account agreement established a reasonable time within which to raise objections to account statements. (Parent Teacher Assn., Pub. School 72 v Manufacturers Hanover Trust Co., 138 Misc 2d 289; New York Credit Men’s Adj. Bur. v Manufacturers Hanover Trust Co., 41 AD2d 912.) III. UCC article 4-A does not require actual notice rather than constructive notice of account transactions. IV Under UCC article 4-A, the parties to an account agreement may agree to constructive notice rather than actual notice of account transactions. V The parties in this case agreed to constructive notice of account transactions through a hold mail system.

      Lopez Romero & Montelione, EC., New York City (Richard J. Montelione and Luis Alfredo Romero of counsel), for respondent.
    I. The one-year statute of repose established by UCC 4-A-505 may not be varied by agreement where a funds transfer is the result of a payment order that is not authorized or not effective as the order of the customer. (Kontrick v Ryan, 540 US 443; Steel Co. v Citizens for Better Environment, 523 US 83; United States v Robinson, 361 US 220.) II. Although minimum limits, such as “reasonable time,” do not apply to UCC 4-A-505, such limits are allowed by other provisions of UCC article 4-A. (Grabowski v Bank of Boston, 997 F Supp 111.) III. The account agreement between Tomáz Mendes Regatos and the bank addresses situations covered by article 4 of the UCC, but does not express the intention of the parties with respect to their rights and obligations concerning funds transfers under UCC article 4-A. (Sheerbonnet, Ltd. v American Express Bank, Ltd., 905 F Supp 127; Qassemzadeh v IBM Poughkeepsie Empls. Fed. Credit Union, 167 AD2d 378; New York Credit Men’s Adj. Bur. v Manufacturers Hanover Trust Co., 41 AD2d 912.) IV Article 4-A of the UCC requires actual notice which reasonably identifies the payment order. (Matter of Chase Manhattan Bank v State of New York, 40 NY2d 590.) V Wherever actual notice is required by any section of UCC article 4-A, such requirement may not be varied by agreement. VI. Alternatively, even if the actual notice requirement could be altered by agreement, as a matter of law, the constructive notice contemplated by the account agreement in the form of a “hold mail” agreement is no substitute for the separate notice required for funds transfers. (Grabowski v Bank of Boston, 997 F Supp 111.)

      Sullivan & Cromwell LLP, New York City {H. Rodgin Cohen, Bruce E. Clark, Michael M. Wiseman and Stacey R. Friedman of counsel), and Norman R. Nelson for Clearing House Association L.L.C., amicus curiae.
    I. The express terms of the Uniform Commercial Code permit a commercial customer to agree to vary the one-year statutory period established by section 4-A-505. (Five Towns Coll. v Citibank, 108 AD2d 420; Josephs v Bank of N.Y., 302 AD2d 318; Parent Teacher Assn., Pub. School 72 v Manufacturers Hanover Trust Co., 138 Misc 2d 289; Bluebird Partners v First Fid. Bank, 97 NY2d 456; Bender v Jamaica Hosp., 40 NY2d 560; Qassemzadeh v IBM Poughkeepsie Empls. Fed. Credit Union, 167 AD2d 378; Centre-Point Merchant Bank Ltd. v Amer

      ican Express Bank Ltd., 913 F Supp 202; Sheerbonnet, Ltd. v American Express Bank, Ltd., 905 F Supp 127; New York Credit Men’s Adj. Bur. v Manufacturers Hanover Trust Co., 41 AD2d 912.) II. The 15-day period provided in Tomáz Mendes Regatos’s agreement, within which he agreed to discover and report an unauthorized transfer, is not prohibited by UCC article 4-A. III. UCC article 4-A does not require actual notice; constructive notice is sufficient.

      Wilmer Cutler Pickering Hale and Dorr LLP, New York City {Christopher J. Meade and Anne K. Small of counsel), and Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC {Bruce E. Coolidge of counsel), for American Bankers Association and others, amici curiae.
    I. Freedom of contract is a key principle of the Uniform Commercial Code in general and article 4-A in particular. (Banque Worms v BankAmerica Intl., 77 NY2d 362.) II. The 15-day limitation period chosen by the parties applies. (Kontrick v Ryan, 540 US 443; Steel Co. v Citizens for Better Environment, 523 US 83.) III. Tomáz Mendes Regatos “received notification” when bank statements were made available to him.
   OPINION OF THE COURT

Rosenblatt, J.

The United States Court of Appeals for the Second Circuit, by certified questions, asks us whether a commercial bank customer can recover funds that the bank improperly transferred out of his account, even though he did not notify the bank of the unauthorized transfer until well after the time limit stated in his account agreement. This issue requires us to decide whether the one-year period of repose in our Uniform Commercial Code § 4-A-505 may be modified by agreement. We also resolve whether UCC 4-A-204 (1) requires the bank actually to send the customer notice of an unauthorized transfer in order to trigger the running of a “reasonable time” within the meaning of that section, or whether a private agreement to hold a customer’s mail can allow constructive notice to start that period. These are questions of first impression in this Court, and apparently in every other court of last resort in states that have adopted the relevant statutes.

In accord with the United States District Court for the Southern District of New York, we hold for the customer on both questions. The one-year period of repose in UCC 4-A-505, governing the customer’s time in which to notify the bank of the unauthorized transfer, may not be modified by contract. Furthermore, both the one-year statute of repose and the “reasonable time” referred to in section 4-A-204 (1), which determines the customer’s ability to recover interest on the misallocated money, begin to run when the customer receives actual notice of the improper transfer.

I.

Tomáz Mendes Regatos held a commercial account with Commercial Bank of New York, the predecessor to North Fork Bank. His agreement with the bank required him to notify the bank of any irregularity regarding his account within 15 days after the bank statement and items were first mailed or made available to him. The agreement did not provide for notice to him of electronic funds transfers, except to the extent those transfers appeared on his monthly statements. The bank adopted a practice of holding Regatos’s bank statements rather than mailing them to him, and expected him to request the statements when he wanted to see them.

On March 23, 2001, the bank received a funds transfer order from someone it believed to be Regatos, but failed to follow agreed security procedures to confirm the order. Without authorization, the bank then transferred $450,000 out of his account. On April 6, 2001, the bank received another transfer order, again failed to follow its security procedures and without authorization transferred an additional $150,000 out of his account. Together, these transfers represented most of the value of the account.

Regatos did not learn of the unauthorized transfers until he checked his accumulated account statements on August 9, 2001. The transfers were reflected on statements issued on March 23, 2001 and April 25, 2001, but the bank held these statements until he asked for them, following its standard practice in relation to him. He informed the bank of the unauthorized transfers on the day he learned of them, August 9, 2001.

When the bank refused to reimburse Regatos for the lost funds, he sued in the United States District Court for the Southern District of New York. In a comprehensive, well-reasoned opinion, District Judge Shira Scheindlin denied the bank’s motion for summary judgment and held that the one-year statute of repose may not be shortened by agreement. The court ruled that, in any event, the 15-day notice period set by the account agreement was unreasonable and invalid. The Federal District Court further held that the UCC 4-A-505 period to notify the bank began to run when Regatos received actual notice of the error on August 9, 2001 (Regatos v North Fork Bank, 257 F Supp 2d 632 [SD NY 2003]).

A federal jury found in favor of Regatos. Following UCC 4-A-204, the court awarded him both the principal ($600,000) and the interest from the date the bank improperly transferred the funds.

The hank appealed, and the United States Court of Appeals for the Second Circuit determined that the legal issues necessary to dispose of the case were novel, important questions of New York law. The Second Circuit certified to this Court, and we accepted, the following questions:

“[1] Can the one-year statute of repose established by New York U.C.C. [ ] 4-A-505 be varied by agreement? If so, are there any minimum limits on the variation thereof (such as ‘reasonable time’) that estop [the bank] from denying Regatos recovery in this case? . . .
“[2] In the absence of agreement, does New York U.C.C. Article 4-A require actual notice, rather than merely constructive notice? If so, can this requirement be altered by agreement of the parties and was such achieved here?” (Regatos v North Fork Bank, 396 F3d 493, 498-499 [2005] [Wesley, J.].)

We answer the first part of the first question “no,” rendering the second part academic. We answer the first part of the second question “yes” and the second part of the second question “no.”

II.

UCC 4-A-204 establishes a bank’s basic obligation to make good on unauthorized and ineffective transfers and, with one exception, forbids any variation of that obligation by agreement. UCC 4-A-204 reads as follows:

“(1) If a receiving bank accepts a payment order issued in the name of its customer as sender which is (a) not authorized and not effective as the order of the customer under Section 4-A-202, . . . the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund. However, the customer is not entitled to interest from the bank on the amount to be refunded if the customer fails to exercise ordinary care to determine that the order was not authorized by the customer and to notify the bank of the relevant facts within a reasonable time not exceeding ninety days after the date the customer received notification from the bank that the order was accepted or that the customer’s account was debited with respect to the order. The bank is not entitled to any recovery from the customer on account of a failure by the customer to give notification as stated in this section.
“(2) Reasonable time under subsection (1) may be fixed by agreement as stated in subsection (1) of Section 1-204, but the obligation of a receiving bank to refund payment as stated in subsection (1) may not otherwise be varied by agreement.”

Furthermore, UCC 4-A-505 provides that

“[i]f a receiving bank has received payment from its customer with respect to a payment order issued in the name of the customer as sender and accepted by the bank, and the customer received notification reasonably identifying the order, the customer is precluded from asserting that the bank is not entitled to retain the payment unless the customer notifies the bank of the customer’s objection to the payment within one year after the notification was received by the customer.” (UCC 4-A-505.)

Regatos argues that the one-year statutory period is an integral part of the bank’s “obligation ... to refund payment” under UCC 4-A-204 (1) and so, pursuant to UCC 4-A-204 (2), “may not ... be varied by agreement.” The bank and its supporting amici point out that the notice provision is in section 4-A-505, not section 4-A-204 (1), and rely on UCC 4-A-501 (1), which declares that “[ejxcept as otherwise provided . . . the rights and obligations of a party to a funds transfer may be varied by agreement of the affected party.” The bank maintains that the customer’s duty to notify the bank of the error before recovering misallocated funds is an “obligation” separate from that created by section 4-A-204 (1) and therefore modifiable.

We agree with Regatos’s reading of the statutes. In context, the policy behind article 4-A encourages banks to adopt appropriate security procedures. Only when a commercially reasonable security procedure is in place (or has been offered to the customer) may the bank disclaim its liability for unauthorized transfers (UCC 4-A-202). Permitting banks to vary the notice period by agreement would reduce the effectiveness of the statute’s one-year period of repose as an incentive for banks to create and follow security procedures.

While the issue is close, we cannot accept the bank’s argument that the customer’s responsibility to notify the bank of its error is modifiable. UCC 4-A-204 (1) states that “[t]he bank is not entitled to any recovery from the customer on account of a failure by the customer to give notification as stated in this section.” Accordingly, a bank has an obligation to refund the principal regardless of notice, provided such notice is given within one year in accordance with UCC 4-A-505 (see 3 James J. White and Robert S. Summers, Uniform Commercial Code § 22-4 [4th ed]). Moreover, as the District Court pointed out, section 4-A-505 (the one-year notice period) appears in the “Miscellaneous Provisions” part of the article, not the parts touching upon substantive rights and obligations (Regatos, 257 F Supp 2d 632, 644 n 19 [2003]). The period of repose in section 4-A-505 is essentially a jurisdictional attribute of the “rights and obligations” contained in UCC 4-A-204 (1). To vary the period of repose would, in effect, impair the customer’s section 4-A-204 (1) right to a refund, a modification that section 4-A-204 (2) forbids.

Article 4-A was intended, in significant part, to promote finality of banking operations and to give the bank relief from unknown liabilities of potentially indefinite duration (see Banque Worms v BankAmerica Intl., 77 NY2d 362, 371 [1991]). This legislative purpose does not suggest that those interests alter (or should alter) the statute’s fine-tuned balance between the customer and the bank as to who should bear the burden of unauthorized transfers.

Therefore, we hold that the one-year repose period in section 4-A-505 cannot be modified by agreement. By notifying the bank on August 9, 2001, the day he received actual notice, and four or five months after the statements were available, Regatos acted either way within the year-long period of repose. This clearly satisfied the statutory requirement and he is entitled to recover at least his $600,000 principal.

III.

The Second Circuit next asks whether actual notice is required under article 4-A (or whether mere constructive notice will do) and, consequently, whether Regatos is also entitled to recover interest on the misdirected funds.

The bank made Regatos’s monthly account statements available for his review, but waited for him to request them rather than send them to him. According to its agreed security procedures, the bank was to reach him by telephone immediately after it received a funds transfer order, to confirm that he had actually authorized the transfer. Other than that call, which the jury found was never made, the only notice available to him would come from his own perusal of the account statements.

In his earlier dealings with the bank, Regatos tended to check his statements regularly. By 2001, however, he reviewed the bank’s statements only intermittently. In that year, he asked to see his statements some time before the unauthorized transfer on March 23, 2001 and did not ask again until August 9, 2001, after the bank had generated statements on March 23, 2001 and April 25, 2001. These two statements revealed the unauthorized transfers, but the bank continued to hold the statements until Regatos asked for them. As discussed, he immediately notified the bank of its error when he discovered it on August 9, 2001.

The bank argues that Regatos obtained constructive notice of the transfers on March 23, 2001 and April 25, 2001, when the statements disclosing them were first generated. UCC 4-A-204 requires a customer seeking to recover interest on funds lost due to an unauthorized transfer “to notify the bank of the relevant facts within a reasonable time not exceeding ninety days after the date the customer received notification from the bank that the order was accepted.” We agree with Regatos that this requirement may not be waived.

Under the bank’s reading of the statute, an agreed 15-day notice period could run before a bank statement was even available for the customer’s review. If the burden of checking whether the bank has wrongfully transferred funds out of the customer’s account were to fall on the customer, as it would under a constructive notice interpretation, the customer’s duty to check would presumably arise as soon as the data became available for review. In electronic funds transfers, the bank would be able to inform an inquiring customer of the transfer well before the formal monthly statement is compiled. Conceivably, the crucial information could be sitting in the bank’s possession for weeks, awaiting discovery by the customer. If the customer did not inquire, and the agreement’s 15-day period ran, the customer would lose the transferred funds even though the error was entirely the bank’s. This seems to us both the logical consequence of a constructive notice system and an unreasonable view of actual banking relationships. Because interpretation of the UCC is always conducted with an eye toward business realities and the predictable consequences of legal rules, we reject a statutory interpretation that conflicts with reasonable business practices.

Policy arguments support an actual notice requirement. An invariable statutory rule provides a bright line for banks and their customers, bringing reliability and certainty to these dealings. Constructive notice is far less exact, leaving too much room for varying interpretation and disorder. If the bank had complied with its security procedures, it would have called Regatos the same day it received each purported transfer order, thereby providing him with actual notice of the events.

Even where customers enter “hold mail” agreements with their banks, the actual notice rule still applies. Just as the one-year notice limitation is an inherent aspect of the customer’s right to recover unauthorized payments, the actual notice requirement provides the bedrock for the exercise of that right. Permitting banks to enforce “agreements” to accept constructive notice would defeat article 4-A’s guarantee of recovery for unauthorized payments.

In response to the second certified question, we answer that article 4-A requires actual notice, and that this requirement cannot be varied by a “hold mail” agreement, neither to begin the statute of repose, nor to begin “reasonable time” under the account agreement. Regatos notified the bank of his loss within an indisputably reasonable time after receiving actual notice, and is therefore entitled to recover the interest on his lost principal (UCC 4-A-204).

Accordingly, the first part of certified question 1 should be answered in the negative and the second part not answered as unnecessary, and the first part of certified question 2 should be answered in the affirmative and the second part in the negative.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered as follows: the first part of question 1 answered in the negative, and the second part of question 1 not answered as academic; and the first part of question 2 answered in the affirmative, and the second part of question 2 answered in the negative.

      . The relevant part of the account agreement stated that
      “[t]he depositor will exercise reasonable care and promptness in examining such statement and items to discover any irregularity including, but not limited to, any unauthorized signature or alteration and will notify the Bank promptly in writing of any such discovery, and in no event more than fifteen (15) calendar days subsequent to the time that such statement and items were first mailed or available to the depositor. In those situations in which the depositor has authorized the Bank to hold his correspondence, this section shall apply as if the depositor received such statement on the date shown on the statement.”

      . The security procedures here involved nothing more than checking Regatos’s signature against the signature on the faxed transfer order and calling him to confirm (cf. UCC 4-A-201 [“Comparison of a signature on a payment order or communication with an authorized specimen signature of the customer is not by itself a security procedure”]). Apparently, the bank did not require any password, even for large sums. Here, the bank compared the signature on the fax to its signature on file, but did not realize that the fax signature had been forged. The jury found that the bank did not telephone Regatos to confirm that the order was legitimate.

      . The parties do not dispute that New York law governs their relationship.

      . Ineffective transfers are those in which the bank has not properly executed security procedures (UCC 4-A-202).

      . In support of this position, the amici urge that article 4-A is not a consumer protection statute, especially considering that it applies solely to presumably sophisticated commercial parties. While this is true to some extent, the provision in section 4-A-204 refusing to allow parties to modify the bank’s basic obligation to refund unauthorized transfer funds contradicts the amici’s argument because the provision clearly protects consumers, even commercial consumers, from bearing the burden of this type of bank error.

      . “A customer that acts promptly is entitled to interest from the time the customer’s account was debited or the customer otherwise made payment. . . . But the bank is not entitled to any recovery from the customer based on negligence for failure to inform the bank. Loss of interest is in the nature of a penalty on the customer designed to provide an incentive for the customer to police its account. There is no intention to impose a duty on the customer that might result in shifting loss from the unauthorized order to the customer” (UCC 4-A-204, Comment 2, reprinted in McKinney’s Cons Laws of NY, Book 62V2, UCC 4-A-204, at 622).


author: Graffeo, J.

text:
    [838 NE2d 624, 804 NYS2d 708]
    In the Matter of Pine Knolls Alliance Church, Respondent, v Zoning Board of Appeals of the Town of Moreau, Appellant.
    Argued September 15, 2005;
    decided October 20, 2005

      POINTS OF COUNSEL

      Bartlett, Pontiff, Stewart & Rhodes, PC., Glens Falls (Martin D. Auffredou and Elisabeth B. Mahoney of counsel), for appellant.
    I. The Appellate Division improperly applied this Court’s holding in Cornell Univ. v Bagnardi (68 NY2d 583 [1986]) to the present case. (Trustees of Union Coll. in Town of Schenectady in State of N.Y. v Members of Schenectady City Council, 91 NY2d 161; McGann v Incorporated Vil. of Old Westbury, 293 AD2d 581; Matter of Apostolic Holiness Church v Zoning Bd. of Appeals of Town of Babylon, 220 AD2d 740; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Assembly of God Church of Bay Shore, N.Y. v Islip Town Bd., 228 AD2d 585; Matter of Holy Trinity Greek Orthodox Church of Hicksville v Casey, 150 AD2d 448.) II. The Appellate Division improperly directed respondent to issue a permit to petitioner and, instead, should have remitted the application to respondent for reconsideration. (Cornell Univ. v Bagnardi, 68 NY2d 583; McGann v Incorporated Vil. of Old Westbury, 293 AD2d 581; Neddermeyer v Town of Ontario Planning Bd., 155 AD2d 908.) III. Respondent’s determination was supported by substantial evidence. (Matter of Fuhst v Foley, 45 NY2d 441; Matter of Cowan v Kern, 41 NY2d 591; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of PDH Props, v Planning Bd. of Town of Milton, 298 AD2d 684; Matter of Albany-Greene Sanitation v Town of New Baltimore Zoning Bd. of Appeals, 263 AD2d 644; Matter of Squire v Conway, 256 AD2d 771; Matter of Eddy v Niefer, 297 AD2d 410.)

      FitzGerald Morris Baker Firth PC., Glens Falls (William A. Scott of counsel), for respondent.
    I. The question of whether substantial evidence was presented to support the Zoning Board of Appeals of the Town of Moreau’s decision is not at issue on this appeal. (Matter of Harrison Orthodox Minyan v Town Bd. of Harrison, 159 AD2d 572; Neddermeyer v Town of Ontario Planning Bd., 155 AD2d 908.) II. The Appellate Division’s ruling is consistent with the prior rulings of this Court. (Cornell Univ. v Bagnardi, 68 NY2d 583; Trustees of Union Coll. in Town of Schenectady in State of N.Y. v Members of Schenectady City Council, 91 NY2d 161; Matter of Cornell Univ. v Beer, 16 AD3d 890; Matter of Holy Trinity Greek Orthodox Church of Hicksville v Casey, 150 AD2d 448; Matter of Assembly of God Church of Bay Shore, N.Y. v Islip Town Bd., 228 AD2d 585.) III. The relief afforded by the Appellate Division was appropriate. (Matter of Sarah Lawrence Coll. v Zoning Bd. of Appeals in City of Yonkers, 119 AD2d 753; Cornell Univ. v Bagnardi, 107 AD2d 398, 68 NY2d 583; Neddermeyer v Town of Ontario Planning Bd., 155 AD2d 908.)
   OPINION OF THE COURT

Graffeo, J.

In Cornell Univ. v Bagnardi (68 NY2d 583, 589 [1986]), our task was to determine how best to balance the needs and rights of educational and religious institutions seeking to expand their facilities in residential neighborhoods against the concerns of local residents who might be harmed or inconvenienced by the proposed construction projects. We approved the special permit application process as an effective means of addressing expansion requests but we annulled the two zoning determinations under review because the zoning officials in both cases had impermissibly required the colleges that sought special permits to prove their need to expand. In this case, we are asked to apply our decision in Cornell University to a controversy between a church and a zoning board of appeals.

I.

Since 1974, petitioner Pine Knolls Alliance Church has operated a place of worship on a 5.78 acre parcel of property in a residential district on Route 32 in the Town of Moreau, Sara-toga County, pursuant to a special use permit issued by the Town. After purchasing an adjoining 14.3 acres, the Church applied to respondent Zoning Board of Appeals (ZBA) in November 2002 for a modification of its existing special use permit to implement an expansion plan. The Church proposed the construction of a 9,970 square foot addition to its 10,075 square foot main church, a 2,120 square foot addition to its 6,040 square foot youth building, a new 3,780 square foot building for use as a counseling center, relocation and expansion of the playground, relocation of an existing storage shed and trailer, and expansion of the parking lot.

As a final aspect of the plan, although a driveway already connected the parking lot to Route 32, the Church sought to build a second access road about 500 feet to the north of the existing driveway that would assist the flow of traffic between the parking lot and Route 32. The new roadway would be aligned opposite a residential cross street, creating a four-way intersection on Route 32.

The ZBA referred the entire expansion application to the Town Planning Board for a report and recommendation. At the request of the Planning Board, the Church hired Creighton Manning Engineering, LLP to conduct a traffic study. The engineering report concluded that the proposed expansion, including the addition of a new access road, would have no significant impact on traffic in the surrounding neighborhood and that no mitigation was necessary at the affected intersection. Based on the report, the Planning Board issued a “positive recommendation” concerning the project, but suggested that plantings be placed to shield neighboring properties from the effects of the expansion.

In the meantime, neighborhood residents retained professional engineer Lawrence M. Levine to conduct a traffic analysis. Levine determined that the proposed secondary access road would create traffic problems both for churchgoers and for nearby residents. Levine cited the potential for increased cut-through traffic that would disrupt the residential neighborhood across from the church property, turning conflicts that could result in accidents at the new four-way intersection and sight-line problems for vehicles exiting the Church. He further opined that construction of the additional driveway would lead to noise and light pollution and create runoff problems for adjoining residential properties. Although he recognized that the entire expansion plan would result in increased church-related traffic, Levine nonetheless concluded that it was not necessary for the Church to construct a second access road. Instead, Levine commented that parking lot congestion could be alleviated by widening the existing driveway to create two lanes (with one dedicated as a left-turning exit lane after services) and applying “[s]imple traffic management techniques” to control overlapping arrivals and departures.

In March 2003, the ZBA referred the Church’s development proposal to the Saratoga County Planning Board. Like its town counterpart, the County Planning Board generally recommended that the expansion plan be approved, but it expressed reservations about the secondary driveway. It urged the ZBA to examine alternatives that would lessen the impact of the new roadway on neighboring properties, including withholding approval of the access road until all other reasonable traffic control measures were instituted by the applicant. In particular, the County Planning Board suggested that the ZBA consider requiring the Church to widen its existing driveway, eliminate parking adjacent to the existing intersection, employ a traffic control officer during peak usage hours or take other actions to ease traffic congestion.

After conducting a public hearing, the ZBA issued a determination in August 2003 approving every aspect of the development plan except the Church’s request to construct the second driveway. Apart from the additional roadway, the ZBA concluded that the project would not result in significant adverse impacts to the public welfare. Crediting the findings in the Levine engineering report, however, the ZBA found that the secondary roadway would “present undue and inconvenient impacts to the public welfare including noise and traffic upon the neighboring properties” and would affect “green space” to the extent that these negative impacts “outweigh any perceived benefit to the Church at this time.” The ZBA noted that the new driveway was unnecessary because the Church’s traffic needs could be met through minor upgrades to the existing entrance road, such as the removal of a planter, widening the existing driveway to establish two exit lanes and eliminating parking along the exit lanes. The denial of the additional driveway was made without prejudice to the Church renewing its application or submitting a new application at a later time should the recommended measures prove ineffective.

The Church then commenced this CPLR article 78 proceeding challenging that portion of the ZBA determination that denied permission to construct the secondary roadway. The Church argued that the ZBA had impermissibly imposed a requirement that the Church establish a “need” for the access road contrary to this Court’s decision in Cornell University and the determination was therefore arbitrary and capricious. Supreme Court dismissed the petition, finding that the denial of the secondary driveway was supported by the negative impact evidence in the record and the ZBA had not impermissibly interfered with the Church’s religious activities when it disapproved construction of the new driveway. To the contrary, Supreme Court viewed the denial as a permissible condition to the ZBA’s grant of a modified special use permit.

On appeal, the Appellate Division reversed, granting the petition and directing the issuance of a special use permit authorizing the second driveway. Opining that the “underlying reason” for the ZBA’s denial was the Church’s failure to establish that it needed an additional access road and interpreting our decision in Cornell University as precluding any consideration of the Church’s needs, the Court concluded that the determination was fatally flawed (14 AD3d 863, 864 [2005]). We granted the ZBA permission to appeal to this Court and we now reverse and reinstate the order of Supreme Court confirming the ZBA determination.

II.

“Historically, schools and churches have enjoyed special treatment with respect to residential zoning ordinances and have been permitted to expand into neighborhoods where nonconforming uses would otherwise not have been allowed” (Cornell Univ. v Bagnardi, 68 NY2d at 593). Recognizing that educational and religious institutions are presumed to have a beneficial effect on the community, we clarified in Cornell University that this presumption can be rebutted “with evidence of a significant impact on traffic congestion, property values, municipal services and the like” (id. at 595). We have invalidated ordinances that impose blanket bans on religious or educational uses in particular communities in favor of a case-by-case review, endorsing the special use permit application process as the proper procedure for addressing expansion requests (see Trustees of Union Coll. in Town of Schenectady in State of N.Y. v Members of Schenectady City Council, 91 NY2d 161 [1997]). This procedure “affords zoning boards an opportunity to weigh the proposed use in relation to neighboring land uses and to cushion any adverse effects by the imposition of conditions designed to mitigate them” (Cornell Univ., 68 NY2d at 596 [citation omitted]).

After engaging in the appropriate balancing process, zoning officials may conclude that “a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals” (id. at 595) and may deny a special use permit on that basis. When the negative impacts are not so extreme as to warrant outright denial, mitigating conditions may be imposed to ameliorate the harm “provided they do not, by their cost, magnitude or volume, operate indirectly to exclude such uses altogether” {id. at 596 [citation omitted]). In assessing a special permit application, zoning officials are to review the effect of the proposed expansion on the public’s health, safety, welfare or morals, concerns grounded in the exercise of police power, “with primary consideration given to the over-all impact on the public welfare” (Trustees of Union Coll., 91 NY2d at 166). Applications may not be denied based on considerations irrelevant to these concerns.

Thus, in Cornell University, we struck down two zoning decisions involving colleges because zoning officials in both cases had required that the educational institutions seeking special permits prove their need to expand as a condition precedent to granting the application—an improper criterion. We reasoned that “[a] requirement of a showing of need to expand ... , or even more stringently, a need to expand to the particular location chosen . . . , has no bearing whatsoever upon the public’s health, safety, welfare or morals” and, as such, was impermissible (Cornell Univ., 68 NY2d at 597 [citations omitted]). We made clear in Cornell University that it is not the role of zoning officials to second-guess the expansion needs of religious and educational institutions. That being said, however, once those institutions have identified their own needs and presented those interests in a special permit application, zoning officials have the flexibility to consider other means of accommodating those needs if the negative impacts of the proposed use outweigh its beneficial effects.

Unlike in Cornell University, the ZBA in this case did not require the Church to make an affirmative showing of a need to expand as a condition precedent to the issuance of a special use permit. Indeed, there was no discussion in the ZBA determination concerning whether the Church needed its comprehensive expansion plan, which included significant additions to existing structures, the erection of a new building, and the relocation and expansion of other facilities. Rather, the inquiry was whether the proposed expansion could be accomplished in a manner that mitigated the negative impacts on the surrounding community. Based on record evidence, the ZBA found that it could and granted all aspects of the application except for the secondary roadway.

Although the Church was denied permission to construct a new access road, this was not a denial of permission to expand. The ZBA acknowledged that the expansion project could result in internal traffic concerns, but found that the Church could address those concerns in ways other than as proposed. Instead of constructing a new roadway off Route 32, the Church was allowed to increase the capacity of its existing driveway. This was the functional equivalent of imposing mitigating conditions on the grant of an application—a practice expressly approved in Cornell University as long as such conditions do not “by their cost, magnitude or volume, operate indirectly to exclude” the religious or educational use of the parcel. The requirement that petitioner widen its existing driveway (in lieu of constructing a new one) is neither so costly or extreme that it undermines the efficacy of the expansion plan, nor does it prohibit the Church’s religious use of the newly acquired parcel. It therefore meets the test articulated in Cornell University.

The Church argues that the ZBA’s reference to the need for the secondary driveway is indistinguishable from the “need to expand” analysis disapproved in Cornell University. We disagree. The ZBA never required the Church to prove a need to expand, either in general terms or in relation to the adjoining property the Church had purchased for that purpose. Instead, it determined that there was a means for the Church to address the congregation’s traffic concerns (which the Church itself had recognized) without construction of a secondary roadway that would have significant negative impacts on the surrounding residential community. It was only in this sense that the ZBA noted that the Church did not “need” the additional access road. Read in context, the discussion of need did not involve an impermissible interference with the internal affairs of the Church but arose out of an appropriate balancing of interests well within the scope of the powers of a ZBA.

In sum, in this case the ZBA found that the expansion could be accomplished in a manner that was less intrusive to neighboring properties. This determination is supported by substantial evidence in the record, particularly the findings in the Levine traffic study and the Saratoga County Planning Board recommendation. Because there was nothing improper, irrational, arbitrary or capricious about the ZBA’s analysis or the conclusion it reached, the determination should not have been disturbed.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order reversed, etc.

       As a result of our decision upholding the ZBA determination, we have no occasion to address the ZBA’s additional contention that, even if the determination had been erroneous, the Appellate Division erred in granting the petition instead of remitting the matter to the ZBA for further proceedings.


author: Cipakick, J.

text:
    [838 NE2d 1271, 805 NYS2d 24]
    The People of the State of New York, Respondent, v Felix Gomez, Appellant.
    Argued September 8, 2005;
    decided October 25, 2005

      POINTS OF COUNSEL

      Gayle Pollack, New York City, and Robert S. Dean for appellant.
    A driver’s general consent to a car search does not allow the police to engage in a destructive search. (People v Gonzalez, 39 NY2d 122; Bumper v North Carolina, 391 US 543; People v Mitchell, 211 AD2d 553; Florida v Jimeno, 500 US 248; People v Calvo, 1 AD3d 605; People v Bryant, 245 AD2d 1010; People v Saunders, 161 AD2d 1202; United States v Snow, 44 F3d 133; People v Andeliz, 3 Misc 3d 384; United States v Restrepo, 890 F Supp 180.)

      Robert M. Morgenthau, District Attorney, New York City (Megan E. Joy and Gina Mignola of counsel), for respondent.
    The hearing court properly determined that the police lawfully searched defendant’s car based on defendant’s valid consent and probable cause. (People v Ingle, 36 NY2d 413; People v Mitchell, 211 AD2d 553; People v Battaglia, 86 NY2d 755; People v Hollman, 79 NY2d 181; People v Barreras, 253 AD2d 369; People v Rizzo, 40 NY2d 425; People v Shabazz, 99 NY2d 634; People v Wheeler, 2 NY3d 370; People v Valerio, 95 NY2d 924; People v Carvey, 89 NY2d 707.)
   OPINION OF THE COURT

Cipakick, J.

The question presented by this appeal is whether a police officer may conduct a destructive search of an automobile based on a suspect’s general consent to search. We conclude as a matter of law that the search here exceeded the scope of defendant’s consent.

Just past midnight on September 27, 2001, Sergeant William Planeta and his partner, Officer Joseph Agresta, spotted a black 1993 Honda with tinted windows. A computer check on the car failed to turn up any negative information. After following the car for approximately 20 blocks, the officers pulled it over for excessively tinted windows—a violation of Vehicle and Traffic Law § 375 (12-a) (b). While his partner spoke with defendant driver, Planeta approached the vehicle, looked through the passenger window and then, as was his custom in car stops, inspected the undercarriage of the car for evidence of a hidden compartment. As Planeta testified, based on his expertise in narcotics trafficking, the undercarriage of a vehicle can offer telltale signs of secret compartments. Accordingly, he checks the undercarriage of virtually every car he stops.

Planeta, upon his inspection, noticed a fresh undercoating around the gas tank. Meanwhile, defendant handed Agresta the relevant documents which revealed a tampered registration card. The word “Company” had been removed from the name on the registration card so that it read “Anna Teodora Fermin” rather than “Anna Teodora Fermin Company.” The darkly tinted windows, fresh undercoating near the gas tank and altered registration led Planeta, who had been involved in other narcotics arrests, to suspect that the vehicle may have been used to transport drugs. Planeta then asked defendant whether he had “[g]uns, knives, cocaine, heroin, [or] marijuana,” to which defendant responded “No.” Planeta followed this question with a request for consent to search the car, which defendant gave.

Upon obtaining consent to search, Planeta directed defendant and the passenger to the rear of the car, where the two officers patted them down and instructed them to sit on the rear bumper and wait. Planeta immediately went to the rear seat, unlocked it and pulled it back. He observed gray “non-factory” carpet in the location above the area where he earlier spotted fresh undercoating. He then pulled up the glued carpeting and discovered a cut in the floorboard. Planeta used his pocket knife to twist open the sheet metal. After struggling to reach what he thought was a plastic bag, Planeta returned to his cruiser and retrieved a crowbar, which he used to pry open part of the gas tank. The officers ultimately recovered seven bags of cocaine weighing approximately l !2 pounds from the compartment found in the gas tank.

Arrested and issued a summons for illegally tinted windows and an expired inspection sticker, defendant was subsequently indicted for criminal possession of a controlled substance in the first and third degrees and criminal possession of a forged instrument in the second degree.

Defendant moved to suppress the drugs claiming that there had been no voluntary consent to search the car and that, even if there were, the search exceeded the scope of the consent. Supreme Court denied the motion after a hearing, finding that defendant had voluntarily consented to a search and that the search conducted was within the scope of the consent, in that defendant never expressly limited or revoked his permission to search. The court reasoned in the alternative that in the absence of consent, probable cause existed to justify the search.

Defendant was convicted on his guilty plea of criminal possession of a controlled substance in the second degree. In affirming defendant’s conviction, the Appellate Division left undisturbed the credibility determinations of the suppression court and agreed that defendant’s consent was voluntary. The Court further concluded that the officer did not exceed the scope of defendant’s consent in light of “defendant’s failure to place any limitations on the search, and his failure to object to the search as it was conducted” (11 AD3d 333, 334 [1st Dept 2004]). The Court did not address the alternative grounds relied on by the suppression court in denying the underlying motion. We now reverse and remit the matter to the Appellate Division to address the remaining issues.

“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” (Florida v Jimeno, 500 US 248, 251 [1991] [citations omitted].) In Jimeno, the United States Supreme Court held that when an officer explains that he is searching for narcotics, a general consent to search a car permits examination of a folded brown paper bag on the floor of the vehicle (see Jimeno, 500 US at 251). The Court noted, however, that “[i]t is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk” (Jimeno, 500 US at 251-252).

Relying on Jimeno, the Second Circuit has held that “[b]ased on the plain meaning of the word ‘search,’ an individual who consents to a search of his car should reasonably expect that readily-opened containers discovered inside the car will be opened and examined” (United States v Snow, 44 F3d 133, 136 [1995]). Here, however, the challenged police action went beyond the inspection of a paper bag or a readily opened container. Here the officer damaged the vehicle by removing attached carpeting and physically altering sheet metal with a crowbar.

“The scope of a search is generally defined by its expressed object” (Jimeno, 500 US at 251). As both sides here agree, a general consent to search, on its own, does not give an officer unfettered search authority. In the absence of other circumstances indicating that defendant authorized the actions taken by police, a general consent to search alone cannot justify a search that impairs the structural integrity of a vehicle or that results in the vehicle being returned in a materially different manner than it was found. A reasonable person would not have understood the officer’s request to search to include prying open a hole in the floorboard and gas tank with a crowbar. Here, the officer clearly crossed the line when he took this action without first obtaining defendant’s specific consent.

In determining the scope of consent, a suppression court must look to the exchange between the parties—both the request and the response—and any attendant circumstances to determine whether a suspect was reasonably put on notice that the search would likely cause damage. Once a search exceeds the objectively reasonable scope of a voluntary consent, a more specific request or grant of permission is needed, in the absence of probable cause, in order to justify damage to the searched area or item sufficient to require its repair.

We cannot agree with the dissent that Fourth Amendment jurisprudence must strive to avoid rules. In addition to providing the rationale for resolution of particular cases, rules give necessary guidance to lower courts and to police. Police officers are well served when they are advised, in advance, as to whether their proposed conduct will be lawful. For this reason, we today set forth a standard that both provides guidance and retains flexibility. It is the dissent that insists on brightening this principle into what it characterizes as a “bright-line rule[]” (dissenting op at 421).

The dissent, moreover, confuses two completely different questions—the reasonableness of a search and the scope of consent. We do not suggest “that a ‘damaging’ search is per se unreasonable” (id. at 423)—we leave it to the Appellate Division to review the reasonableness of the search under the probable cause standard. We conclude only that it was unreasonable for the police officer to interpret defendant’s general consent to search as consent to use a crowbar to damage the gas tank.

Although the search here exceeded the scope of defendant’s consent, we express no opinion as to whether the search was otherwise supported by probable cause, since regrettably the Appellate Division did not review the factual findings of the suppression court on this issue (see CPL 470.15).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court for consideration of issues raised but not determined on the appeal.

Read, J. (dissenting). The majority today holds that a search exceeds the scope of a defendant’s consent as a matter of law whenever it “impairs the structural integrity of a vehicle or . . . results in the vehicle being returned in a materially different manner than it was found” unless there is probable cause or “a more specific request or grant of permission ... to justify [any] damage to the searched area or item sufficient to require its repair” (majority op at 420). Because the Supreme Court has “consistently eschewed bright-line rules” (Ohio v Robinette, 519 US 33, 39 [1996]) in Fourth Amendment contexts, including consent searches (see id.; see also Florida v Jimeno, 500 US 248, 250 [1991]), I respectfully dissent.

“[T]he touchstone of the Fourth Amendment is reasonableness,” not bright-line rules (Ohio v Robinette, 519 US at 39, quoting Florida v Jimeno, 500 US at 250 [internal quotation marks omitted]). “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances” (Ohio v Robinette, 519 US at 39; see also United States v Drayton, 536 US 194, 206-207 [2002]; Schneckloth v Bustamonte, 412 US 218, 232-233 [1973]).

The United States Supreme Court’s decision in Jimeno is the key precedent addressing the permissible scope of consent searches of automobiles, as the majority would seem to acknowledge. In that case, police officers, after having obtained consent to search Jimeno’s car for narcotics, found cocaine in a folded paper bag lying on the floor of the front-seat passenger’s side (see Florida v Jimeno, 500 US at 249-250). The Florida state courts suppressed the narcotics, applying “a per se rule that consent to a general search for narcotics does not extend to sealed containers within the general area agreed to by the defendant” (id. at 250 [internal quotation marks omitted]). Notably, the Supreme Court rejected the per se approach of the Florida courts, an approach indistinguishable from the path taken by the majority today.

In rejecting application of a per se rule, the Jimeno court explained that “[t]he Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within the automobile” (id. at 249). The scope of a suspect’s consent hinges on “what would the typical reasonable person have understood by the exchange between the officer and the suspect” (id. at 251). Further, “[t]he scope of a search is generally defined by its expressed object” (id.).

Similar to Jimeno, Sergeant Planeta preceded his request to search by asking defendant whether he had any narcotics or weapons in the car. As the Jimeno court pointed out, “[contraband goods rarely are strewn across the trunk or floor of a car” (id. [internal quotation marks omitted]). Because “[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container,” it was therefore “objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs” (id.).

Parallel considerations apply here. Drug dealers have grown more sophisticated in their efforts to hide contraband since— indeed, perhaps in response to—Jimeno. Narcotics are nowadays frequently concealed in compartments hidden within fuel tanks (see United States v Flores-Montano, 541 US 149, 153 [2004] [noting “evidence that smugglers frequently attempt to penetrate our borders with contraband secreted in their automobiles’ fuel tank”]). So, just as “it was objectively reasonable for the police to conclude” in Jimeno that they had consent to search any containers in the car “which might bear drugs” (Florida v Jimeno, 500 US at 251), it was objectively reasonable in this case for Sergeant Planeta to believe that he had permission to search any area of defendant’s car in which narcotics might be secreted. To support its observation that “[t]he scope of a search is generally defined by its expressed object” (id.), the Jimeno court cited United States v Ross (456 US 798 [1982]), which held that a warrantless search of a car premised r ot on consent but instead on probable cause—a comparable exception to the warrant requirement—“justifies the search of every part of the vehicle and its contents that may conceal the object of the search” (United States v Ross, 456 US at 825).

The paper bag in Jimeno was far easier to open than the hidden compartment in this case, but this difference does not automatically place discovery of the compartment’s contents beyond the scope of general consent. Indeed, just as a reasonable person might be expected to know that narcotics could be concealed in a hidden compartment, that reasonable person would also be expected to know that a searcher might have to probe or exert some degree of force to open a hidden compartment. After all, these apparatuses are designed to evade detection and defeat easy or inadvertent entry. Sounding in reasonableness as it does, the Fourth Amendment should not be read so as to reward the ingenuity of drug traffickers (compare United States v Snow, 44 F3d 133, 135 [2d Cir 1995] [“the term ‘search’ implies something more than a superficial, external examination. It entails ‘looking through,’ ‘rummaging,’ ‘probing,’ ‘scrutiny,’ and ‘examining internally’ ”]).

Here, Sergeant Planeta initially gained access to the hidden compartment by widening a preexisting (and suspicious) hole in the floorboard enough to allow the insertion of a pocketknife (compare United States v Flores-Montano, 541 US at 155 [holding that disassembling gas tank during border search does not contravene the Fourth Amendment because it “involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle” and also leaving open the question of the reasonableness of “potentially destructive drilling” (id. at 154 n 2)]; see also Carroll v United States, 267 US 132 [1925] [warrantless search of car for liquor based on probable cause allowed federal agent to rip open upholstery of car seat]).

The majority’s conclusion that a “damaging” search is per se unreasonable is premised largely, if not entirely, on dictum in Jimeno that “ [i]t is very likely unreasonable to think that a suspect, by consenting to a search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk” (majority op at 419, quoting Florida v Jimeno, 500 US at 251-252). The Jimeno court made that remark when distinguishing a case, State v Wells (539 So 2d 464 [Fla 1989], affd on other grounds 495 US 1 [1990]), “on which the Supreme Court of Florida relied in affirming the suppression order in” Jimeno (500 US at 251). Any unreasonableness in Wells, however, stemmed not from “damage,” but rather from the greater “expectation of privacy” afforded a piece of locked luggage than an automobile (State v Wells, 539 So 2d at 467). Also, the police in Wells had requested consent to search only a locked trunk, not the briefcase, and they ultimately opened the briefcase hours later, out of the defendant’s presence (see id. at 470 [Shaw, J., dissenting]).

Thus, Wells (and, by extension, the Jimeno court’s dictum regarding Wells) is not relevant to this case. Unlike Wells, the consent search here was conducted contemporaneously with defendant’s granting of consent and in his presence. The police did not open something in which defendant might argue that he had a potentially greater privacy interest than he had in the car itself.

Even if the culmination of the search (i.e., the officer’s use of the crowbar) exceeded defendant’s initial expectations, the Fourth Amendment is satisfied under the totality of the circumstances. In other words, the majority is just wrong to conclude that, as a matter of Fourth Amendment principles, a search resulting in “damage” is per se outside the scope of a general consent. The record of the suppression hearing reveals that defendant watched the search from no more than four feet away. And the suppression court concluded (as factual matters, undisturbed by the Appellate Division and so beyond our review) that defendant had the ability both to communicate with Sergeant Planeta and to see the search as it unfolded. Yet, defendant remained silent as Sergeant Planeta began the search by first folding over the back seat and then pulling up the non-factory installed carpeting. After Sergeant Planeta ceased searching momentarily and walked towards the police car to get a crowbar, defendant maintained his silence. When Sergeant Planeta walked back towards defendant’s car with the crowbar, defendant did not speak up. Finally, when Sergeant Planeta reentered defendant’s car with the crowbar, defendant still did not ask for the search to be halted.

In light of the totality of the circumstances just described, it was objectively reasonable for Sergeant Planeta to believe that the scope of defendant’s consent encompassed the actions he took to search the area of the car above the hidden compartment. As the Jimeno court pointed out, “[a] suspect may of course delimit as he chooses the scope of the search to which he consents” (Florida v Jimeno, 500 US at 252). Here, defendant never did. I therefore agree with both the suppression court and the Appellate Division that defendant’s silence in the face of Sergeant Planeta’s evolving actions constituted consent to the search as conducted.

Although the majority would require “a more specific request or grant of permission” (majority op at 420), that is not what the Fourth Amendment commands. Indeed, the Supreme Court has found “no basis for adding this sort of superstructure to the Fourth Amendment’s basic test of objective reasonableness” (Florida v Jimeno, 500 US at 252). Because defendant’s “consent would reasonably be understood to extend to [what occurred here], the Fourth Amendment provides no grounds for requiring a more explicit authorization” (id.).

Of course, the majority’s new rule may have no practical consequences for this particular case. Whether it does or not will depend upon the outcome of the Appellate Division’s review of the suppression court’s factual findings related to probable cause. I wonder, though, how law enforcement officers will approach the consent search of a vehicle in the future. The majority has fixed the boundary line separating a reasonable from a “damaging” search for which more specific consent is required at the point where police actions impair the structural integrity of the vehicle, or would result in the vehicle’s being returned in a materially different manner than it was found. The “structural integrity” standard seems relatively straightforward, but the “materially different” standard is vague and may well prove unworkable in the field. Critically, we live in an age when we should be most reluctant to create hard-to-apply rules that hamstring police officers who reasonably suspect that a vehicle contains a hidden compartment—an alteration with few, if any, innocent purposes—which might conceal far more lethal cargo than narcotics (compare United States v Cortez-Rocha, 394 F3d 1115, 1125 [9th Cir 2005], cert denied — US —, 126 S Ct 105 [2005] [after citing to portions of 9/11 Commission Report, including section discussing Ahmed Ressam, the thwarted Millennium Bomber, court observed that “giving special protection to the contents of a spare tire,” which was cut open during a border search, “might simply result in making spare tires the smuggler’s—and future Ahmed Ressams—container of choice”]).

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo and R.S. Smith concur with Judge Ciparick; Judge Read dissents in a separate opinion.

Order reversed, etc.

      . On this appeal, defendant does not contest the voluntariness of his consent to search the vehicle but contests only the scope of his consent. We note that the Appellate Division did not disturb the suppression court’s finding of consent to search—a finding that is supported by the record.

      . Since the search as a whole, including the use of a crowbar to pry open the gas tank, clearly exceeded the scope of the consent, we need not decide whether pulling up the carpet and twisting a knife in the floorboard opening were in themselves beyond that scope.

      . In this case, the suppression court described the compartment as a separate area welded inside the gas tank with a hinged door operated by a piston attached to the floor with a U-shaped clamp with a belt through it.

      . The other case cited hy the majority, United States v Snow (44 F3d 133 [1995], supra), is likewise inapposite. The majority apparently reads Snow as standing for the proposition that consent to a car search extends only to “readily-opened” objects and no further (majority op at 419, quoting United States v Snow, 44 F3d at 136). The Second Circuit, however, simply concluded that—despite the Jimeno court’s observation that a search’s scope is defined by its expressed object—the failure to inform a suspect of the object of a search did not place contraband discovered in closed bags in the car outside the scope of the suspect’s consent (see id. at 134-135). Thus, Snow does not address the issue presented on this appeal: whether it is objectively reasonable for a suspect fully aware of the object of a search to expect that the searching officer will search “every part of the vehicle and its contents that may conceal the object of the search” (United States v Ross, 456 US at 825). Indeed, the Snow court pointed out that, in light of the rather uninformed consent there, “[w]e . . . express no view on whether Snow’s consent would have extended to items like locked briefcases” (United States v Snow, 44 F3d at 135). The Snow court also noted that “the term ‘search’ implies something more than a superficial, external examination. It entails ‘looking through,’ ‘rummaging,’ ‘probing,’ ‘scrutiny,’ and ‘examining internally’ ” (id.). Subsequent to Snow, the Second Circuit held that a suspect’s consent to a bag search (premised on not much more of an expressed object than in Snow) encompassed allowing a police officer to pull apart a sneaker with a false bottom found in the bag (United States v Mire, 51 F3d 349, 351-352 [2d Cir 1995]).

      . The suppression court found that the damage to the car in this case was “limited and reasonably necessary to gain access to the gas tank area which was the focus of the search.”


author: Chief Judge Kaye. Read, J.

text:
    [839 NE2d 357, 805 NYS2d 299]
    Jose Rodrigues et al., Plaintiffs, v N & S Building Contractors, Inc., Defendant and Third-Party Plaintiff-Appellant, et al., Defendant. Caldas Concrete Company, Inc., et al., Third-Party Defendants-Respondents.
    Argued September 14, 2005;
    decided October 20, 2005

      POINTS OF COUNSEL

      Goldberg Segalla LLP, Albany (Matthew S. Lerner and Gary J. O’Donnell of counsel), for defendant and third-party plaintiff-appellant.
    I. An oral contract or a contract implied in fact applied to the work site, and the safety agreement that included the applicable indemnification provision was part of that contract. (Matter of Ahern v South Buffalo Ry. Co., 303 NY 545; Dzek v Desco Vitroglaze of Schenectady, 285 AD2d 926; Jemzura v Jemzura, 36 NY2d 496; Hooper Assoc. v AGS Computers, 74 NY2d 487; Zuckerman v City of New York, 49 NY2d 557.) II. The clear and unambiguous terms and conditions of the agreement are more than sufficient for a court to determine that Caldas Concrete Company, Inc. agreed to indemnify N & S Building Contractors, Inc. for damages assessed against it in the underlying action. (Hooper Assoc. v AGS Computers, 74 NY2d 487; Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486.) III. Neither Workers’ Compensation Law § 11, its legislative history, nor New York case law supports the Third Department’s reasoning concerning its interpretation of the agreement. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Dole v Dow Chem. Co., 30 NY2d 143; Boles v Dormer Giant, Inc., 4 NY3d 235; Castro v United Container Mach. Group, 96 NY2d 398; Meis v ELO Org., 97 NY2d 714; Secord v Willow Ridge Stables, 261 AD2d 965; Hooper Assoc. v AGS Computers, 74 NY2d 487; Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486; Potter v M.A. Bongiovanni, Inc., 271 AD2d 918; Linarello v City Univ. of N.Y., 6 AD3d 192.)

      Hanlon, Veloce & Wilkinson, Albany (Thomas J. Wilkinson of counsel), for third-party defendants-respondents.
    The court below correctly dismissed appellant’s third-party complaint because there was no written contract for the work at 284 Jansen Road. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443; Tompkins v Hunter, 149 NY 117; Dole v Dow Chem. Co., 30 NY2d 143; Castro v United

      Container Mach. Group, 96 NY2d 398; Meis v ELO Org., 97 NY2d 714; Ferri v 63 Madison Assoc., 280 AD2d 419; Mowczan v Bacon, 92 NY2d 281; Guijarro v V.R.H. Constr. Corp., 290 AD2d 485.)

      Hiscock & Barclay, LLP, Albany (Mark R. Sonders and Colleen D. Galligan of counsel), for New York State Builders Association, Inc., amicus curiae.
    I. Workers’ Compensation Law § 11 does not require specific language relating to the person covered, the types of losses covered and the specific job covered for the contractual indemnification exception to apply. (Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Castro v United Container Mach. Group, 96 NY2d 398; Meis v ELO Org., 97 NY2d 714.) II. The Third Department’s finding that an indemnification agreement under Workers’ Compensation Law § 11 must include certain specific language violates the doctrine of stare decisis. (Hooper Assoc. v AGS Computers, 74 NY2d 487; People v Hobson, 39 NY2d 479; Heyert v Orange & Rockland Util., 17 NY2d 352; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842; Robertson v Ongley Elec. Co., 146 NY 20; Levine v Shell Oil Co., 28 NY2d 205; Kurek v Port Chester Hous. Auth., 18 NY2d 450; Niagara Frontier Transp. Auth. v Tri-Delta Constr. Corp., 107 AD2d 450; Margolin v New York Life Ins. Co., 32 NY2d 149; Inman v Binghamton Hous. Auth., 3 NY2d 137.) III. Affirmation of the Third Department’s decision in Rodrigues v N & S Bldg. Contrs., Inc. (8 AD3d 876 [2004]), requiring specific language in an indemnification agreement beyond that required by Workers’ Compensation Law § 11 and at variance with accepted customs and understandings, will have a profoundly negative effect on the residential construction industry. (Walter Concrete Constr. Corp. v Lederle Labs., 99 NY2d 603; Trump-Equitable Fifth Ave. Co. v H.R.H. Constr. Corp., 66 NY2d 779; United States v Seckinger, 397 US 203; Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md., 226 AD2d 990; Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 146 AD2d 190; Gordon J. Phillips, Inc. v Concrete Materials, 187 AD2d 1024; Eis Group/Cornwall Hill Dev. Corp. v Rinaldi Constr., 154 AD2d 429; Liberty Mgt. & Constr. v Fifth Ave. & Sixty-Sixth St. Corp., 208 AD2d 73.)
   OPINION OF THE COURT

Chief Judge Kaye.

Workers’ Compensation Law § 11 prohibits third-party indemnification or contribution claims against employers, except where the employee sustained a “grave injury,” or the claim is “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered.” This appeal centers on the latter exception, in particular whether the parties’ agreement satisfied statutory requirements for a viable indemnification claim. We conclude that it did.

Facts

Third-party plaintiff N & S Building Contractors, Inc. was the general contractor for the construction of a single-family house located at 284 Jansen Road in Shawangunk, New York. N & S hired third-party defendant Caldas Concrete Company, Inc. as a subcontractor to erect the concrete foundation. The two companies had a longstanding relationship, having worked together approximately 20 times prior to the Jansen Road project. In February 2000 the parties entered into a one-page “Insurance, Indemnification and Safety Agreement.” The Agreement required Caldas to carry certain insurance, name N & S as an additional insured on its general liability policy and furnish N & S with a certificate from the insurer that insurance was in force. The Agreement further provided that

“[t]o the fullest extent permitted by law, Subcontractor [Caldas] shall indemnify and hold harmless N. & S. Building Contractors, Inc. and Owner against any claims, damages, losses, and expenses, including legal fees, arising out of or resulting from performance of subcontracted work to the extent caused in whole or in part by the Subcontractor or anyone directly or indirectly employed by the subcontractor.”

Finally, the Agreement stated that the “[s]afety of [Caldas’s] employees, whether or not in common work areas, is the responsibility of [Caldas].”

Caldas president Joaquin Januario signed the Agreement on February 7, 2000—the same date reflected on the certificate of liability insurance naming N & S as an additional insured under Caldas’s commercial general liability insurance policy. Approximately four months later, on June 20, 2000, Caldas began work at the Jansen Road site pursuant to an oral agreement with N&S. The following day, Jose Rodrigues, a Caldas employee working at the site, tripped, fell into a trench and was impaled on a piece of rebar. Rodrigues, and his wife derivatively, sued N&S alleging numerous causes of action, all subsequently withdrawn except those alleging violations of Labor Law § 241 (6).

N&S commenced a third-party action against Caldas and its insurer, Transcontinental Insurance Company, seeking indemnification based on the Agreement and claiming that Transcontinental’s refusal to defend and indemnify N&S was in bad faith. Supreme Court granted Caldas’s motion to dismiss that claim, concluding that, because “there was no written contract between N&S and Caldas for the work being performed at 284 Jensen [sic] Road, the site of the accident,” N & S’s claim could not be sustained. The Appellate Division affirmed, holding that “the agreement does not unambiguously and expressly provide that Caldas must indemnify N & S for injuries sustained by Caldas employees in the scope of their employment” (8 AD3d 876, 878 [3d Dept 2004]). The Court added that “[t]he agreement specifies neither the persons covered nor the types of losses covered, contains no reference to the instant job site and states only that Caldas agrees to indemnify N & S ‘[t]o the fullest extent permitted by law’ ” (id. n 2). We granted N&S leave to appeal and now reverse.

Discussion

N&S asks us to grant summary judgment declaring that Caldas must indemnify it for any losses sustained in the underlying personal injury action. Thus, we may grant the relief sought only if N & S has established, as a matter of law, that the Agreement entitled it to indemnity under Workers’ Compensation Law § 11 (see e.g. JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005]).

At the outset, it is clear that, despite the Workers’ Compensation Law shield of employers from liability as joint tortfeasors, a third party may recover against an employer pursuant to contract (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 582 [1998]). Indeed, the statute expressly permits indemnification claims “based upon a provision in a written contract.” Thus, there is no question that the Workers’ Compensation Law allowed N & S and Caldas to enter into an agreement that would indemnify N & S for any losses it might suffer as a result of a personal injury action by a Caldas employee.

Whether the parties did in fact have such an agreement involves a two-part inquiry. First, we consider whether the parties entered into a written contract containing an indemnity provision applicable to the site or job where the injury giving rise to the indemnity claim took place. Second, if so, we examine whether the indemnity provision was sufficiently particular to meet the requirements of section 11.

Caldas argues, and Supreme Court held, that the absence of a written contract explicitly for the Jansen Road project bars N & S’s indemnity claim. We disagree.

The indemnification provision of the parties’ agreement applied to the “performance of subcontracted work” between them. The insurance provision similarly did not specify any particular job site or duration, and the safety provision made Caldas responsible for the safety of its workers, again without reference to any job site or time frame. In addition to the words of the Agreement, N & S vice-president Philip Neidermier testified at his deposition that the Agreement “refers to all of our sites that [Caldas] would work on . . . [i]ncluding that one [Jansen Road].” Caldas did not refute this evidence.

The language of the contract, as well as the testimony, make clear that the Agreement was purposely intended to, and did, apply to all jobs for which N & S hired Caldas as a subcontractor, including Jansen Road. In that no site is mentioned, the argument that the Agreement should not apply here because it does not specifically mention Jansen Road would render it inapplicable to any site or job N & S subcontracted to Caldas. An agreement should not be construed so as to render it meaningless.

The Agreement, moreover, satisfied section ll’s requirement of a “written contract.” Workers’ Compensation Law § 11 requires only that the indemnification claim arise from an indemnification provision in a written contract entered into before the injury. Here, the written agreement contained an indemnification provision, entered into before the injury.

Having concluded that the Agreement was a written contract between the parties applicable to the Jansen Road site, we next consider whether the indemnification provision was sufficiently clear and unambiguous. As we noted in Hooper Assoc. v AGS Computers (74 NY2d 487, 491-492 [1989] [citations omitted]),

“[w]hen a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.”

Here, the Agreement directly, firmly and explicitly evidenced Caldas’s promise to assume responsibility for the safety of its employees, procure insurance protecting N & S and indemnify it in the event of an on-the-job injury. That Caldas arranged for the insurance required by the Agreement is further evidence that Caldas itself recognized that it had undertaken that obligation.

The Appellate Division appears to have interpreted the written-contract exception to Workers’ Compensation Law § 11 to require that an indemnification provision specify the sites, persons and the types of losses covered. We are reluctant to impose specificity requirements not in the statute (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363 [2005]). So long as a written indemnification provision encompasses an agreement to indemnify the person asserting the indemnification claim for the type of loss suffered, it meets the requirements of the statute. That standard was satisfied here.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant and third-party plaintiff N & S Building Contractors, Inc.’s motion for summary judgment as to the third-party action granted and judgment granted declaring that N & S Building Contractors, Inc. is entitled to indemnification from third-party defendant Caldas Concrete Company, Inc. for any judgment obtained by plaintiff against N & S Building Contractors, Inc. in the main action, to the extent that such judgment is not the result of N & S Building Contractors, Inc.’s own wrongdoing.

Read, J.

(dissenting). The Legislature adopted the Omnibus Workers’ Compensation Reform Act in 1996 to shield employers from third-party indemnification or contribution claims except in the limited circumstances of a “grave injury,” or for a claim “based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered” (Workers’ Compensation Law § 11 [emphasis added]). Merriam Webster’s Collegiate Dictionary defines “express” as

“1 a: directly, firmly, and explicitly stated <my express orders> b: EXACT, PRECISE

“2 a: designed for or adapted to its purpose b: of a particular sort: SPECIFIC <for that express purpose>” (at 410 [10th ed 1997]).

As amicus New York State Builders Association, Inc., points out, however, the language in the indemnification provision of the agreement between the parties in this case “is substantially similar to that used ... in form-documents prepared by The American Institute of Architects (ALA) and widely used and accepted throughout the construction industry.” To he precise, the basis for the provision is A401-1997, issued for publication in October 1997. This type of generic indemnification, drafted for use nationwide in states without any equivalent to our rule in Dole v Dow Chem. Co. (30 NY2d 143 [1972]), does not clearly and unambiguously signal an employer’s express agreement for purposes of section 11. Surely the employer must explicitly agree to indemnify for claims against which it would be safeguarded by section 11 unless there is a grave injury. Otherwise, section ll’s promise of relief from third-party actions is illusory for large categories of employers—such as subcontractors—that routinely enter into contracts with standard form indemnifications. The Legislature cannot have intended or contemplated this result when it created an exception from the refuge of section 11 for an express agreement to forgo its protection. Accordingly, I respectfully dissent.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur with Chief Judge Kaye; Judge Read dissents in a separate opinion.

Order reversed, etc.

       In its answer to third-party complaint, Caldas asserted affirmative defenses and a counterclaim for apportionment, contribution and indemnification against N & S. Those defenses and the counterclaim were not resolved by the summary judgment motions that are the subject of the present appeal. Although we conclude that N & S has established a right to indemnification as a matter of law, we do not consider the facts. N & S, of course, would not be entitled to indemnification from Caldas for losses resulting from its own negligence.