author: Chief Judge Kaye.

text:
    [869 NE2d 634, 838 NYS2d 458]
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v City of New York et al., Appellants.
    Argued May 2, 2007;
    decided June 5, 2007

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen, Rita D. Dumain and Robert J. Paparella of counsel), for appellants.
    I. The trial court and Appellate Division erred in adopting a replacement cost approach to value; the law and public policy mandate a “bright-line” rule utilizing the reproduction cost method in valuing utility property for tax assessment purposes. Accordingly, the matter should be remanded for a new hearing based solely on the reproduction cost method. (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351; Matter of Brooklyn Union Gas Co. v State Bd. of Equalization & Assessment, 65 NY2d 472; Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32; Matter of Niagara Mohawk Power Corp. v Town of Bethlehem Assessor, 225 AD2d 841; Matter of Kalski v Fitzgerald, 25 AD2d 573; Matter of Pepsi-Cola Co. v Tax Commn. of City of N.Y., 19 AD2d 56; People ex rel. Jamaica Water Supply Co. v State Bd. of Tax Commrs., 196 NY 39; Matter of Consolidated Edison Co. of N.Y. v State Bd. of Equalization & Assessment, 83 AD2d 355; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236; Matter of Tenneco, Inc.-Tennessee Gas Pipeline Div. v Town of Cazenovia, 104 AD2d 511.) II. The Appellate Division erred in ignoring clear and consistent precedent as to the relevant test in determining whether a deduction for functional obsolescence for excess construction was warranted — technological inefficiencies and/or design changes are not enough. (Matter of Niagara Mohawk Power Corp. v City of Dunkirk Assessor, 221 AD2d 912; Barber & Bennett v State of New York, 34 AD2d 303; Matter of City of New York [Ruppert Brewery Urban Renewal Project], 67 Misc 2d 863; Universal Empire Indus, v State of New York, 149 Misc 2d 773; Congregation of Sons of Israel v State of New York, 54 AD2d 794.)

      Podell, Schwartz, Schechter & Banfield, LLP, New York City (Gary Schuller and William E. Banfield of counsel), for respondent.
    Both experts adopted the cost theory of valuation and used the Reproduction-Cost-New-Less-Depreciation (RCNLD) technique to find value. Both experts agreed that a properly prepared RCNLD appraisal considers all forms of depreciation including functional obsolescence due to excess construction costs. The City’s directive to David Moody not to consider this form of obsolescence based on its misreading of Matter of Brooklyn Union Gas Co. v State Bd. of Equalization & Assessment (65 NY2d 472 [1985]) destroyed the credibility of his appraisal. On this record, the lower courts’ factual determination to include this component of depreciation when valuing the property was not erroneous and should be affirmed. (Matter of Allied Corp. v Town of Camillus, 80 NY2d 351; Matter of County of Suffolk [C. J. Van Bourgondien, Inc.], 47 NY2d 507; Matter of Niagara Mohawk Power Corp. v City of Dunkirk Assessor, 221 AD2d 912; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236; Universal Empire Indus. v State of New York, 149 Misc 2d 773; Matter of City of New York [Ruppert Brewery Urban Renewal Project], 67 Misc 2d 863; Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32, 85 NY2d 809; Matter of Onondaga County Water Dist. v Board of Assessors of Town of Minetto, 39 NY2d 601; Congregation of Sons of Israel v State of New York, 54 AD2d 794; Barber & Bennett v State of New York, 34 AD2d 303.)

      James J. O’Keeffe, Albany, and Philip G. Hembdt for New York State Board of Real Property Services, amicus curiae.
    I. Petitioner’s appraiser has actually used replacement cost to determine the value of the subject property. (Matter of Brooklyn Union Gas Co. v State Bd. of Equalization & Assessment, 65 NY2d 472; Matter of Niagara Mohawk Power Corp. v Town of Bethlehem Assessor, 225 AD2d 841; Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32; Matter of Allied Corp. v Town of Camillus, 80 NY2d 351; Matter of Niagara Mohawk Power Corp. v Assessor of Town of Geddes, 92 NY2d 192.) II. Specialty property is valued using the Reproduction-Cost-New-Less-Depreciation Method because New York State law requires assessments of real property to be based upon the property’s current use and condition. (Matter of Kalski v Fitzgerald, 25 AD2d 573; Matter of Addis Co. v Srogi, 79 AD2d 856, 53 NY2d 603; Matter of Estate of Goldman v Commissioner of Fin., 203 AD2d 20, 83 NY2d 759; Matter of BCA-White Plains Lanes v Glaser, 91 AD2d 633; Matter of Adirondack Mtn. Reserve v

      Board of Assessors of Town of N. Hudson, 99 AD2d 600, 64 NY2d 727; Matter of General Motors Corp. Cent. Foundry Div. v Assessor of Town of Massena, 146 AD2d 851; Matter of General Elec. Co. v Macejka, 117 AD2d 896; Matter of Farone & Son v Srogi, 96 AD2d 711; Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1.) III. Functional obsolescence, when caused by competing with a less expensive, more efficient technology, is determined by capitalizing the excess costs of operating the existing facility. (Universal Empire Indus. v State of New York, 149 Misc 2d 773; Barber & Bennett v State of New York, 34 AD2d 303; Norman’s Kill Farm Dairy Co. v State of New York, 53 Misc 2d 578; Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32; Matter of Onondaga County Water Dist. v Board of Assessors of Town of Minetto, 39 NY2d 601.) IV. If the decision of the Supreme Court is upheld it will result in widespread assessment reductions of utility property and many other complex commercial properties throughout the State. (Matter of Niagara Mohawk Power Corp. v City of Dunkirk Assessor, 221 AD2d 912; Matter of Erie Blvd. Hydropower, L.P. v Town of Ephratah Bd. of Assessors, 9 AD3d 540; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Colt Indus. v New York City Dept. of Fin., 66 NY2d 466.)

      Donna M.C. Giliberto, Albany, and A. Kevin Crawford for the Association of Towns of the State of New York and another, amici curiae.
    The decision of the Appellate Division, Second Department, if upheld will lead to the significant under-assessing of specialty property, negatively impacting municipal budgets across the State. (Matter of Brooklyn Union Gas Co. v State Bd. of Equalization & Assessment, 65 NY2d 472; Matter of Allied Corp. v Town of Camillus, 80 NY2d 351; Matter of Onondaga County Water Dist. v Board of Assessors of Town of Minetto, 39 NY2d 601; People ex rel. Delaware, Lackawanna & W. R.R. Co. v Clapp, 152 NY 490; Consolidated Edison Co. of N.Y. v State Bd. of Equalization & Assessment, 101 Misc 2d 910; Matter of Sperry Rand Corp. v Board of Assessors, County of Nassau, 10 AD2d 720; Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32.)
   OPINION OF THE COURT

Chief Judge Kaye.

The issue before us in this tax certiorari proceeding is whether functional obsolescence due to excess construction costs was appropriately considered in fixing the value of certain speciality property. On the particular record before us, we agree with the trial court and Appellate Division that it was.

Petitioner Consolidated Edison Company of New York, Inc. (Con Edison) brought this tax certiorari proceeding pursuant to RPTL article 7 challenging the City of New York’s assessments on its Arthur Kill electric generating station for the tax years 1994/1995 through 1998/1999. The generating station is comprised of two steam generating units (installed in 1959 and 1969) and one gas turbine (installed in 1970).

At a bench trial, the parties agreed that, as an electrical generating facility, the subject property is considered a “specialty” and should therefore be appraised using the Reproduction-Cost-New-Less-Depreciation (RCNLD) method of valuation. This method seeks to determine the value of a property by estimating the cost to construct a replica using the same materials and techniques as the subject facility (reproduction cost), less depreciation. The parties differed, however, as to whether functional obsolescence due to excess construction costs could be subtracted from the reproduction cost as a component of depreciation. Functional obsolescence due to excess construction costs is the difference between the property’s reproduction cost and the cost of replacing the existing property with a facility of similar productive capacity using modern materials and technology (replacement cost).

Con Edison’s expert included the value of functional obsolescence due to excess construction costs, lowering the appraisal for tax assessment purposes. Although the City’s expert did not include this factor in his appraisal, which was significantly higher, he conceded on cross-examination that in conducting a reproduction cost valuation, appraisers typically consider functional obsolescence due to excess construction costs. Indeed, the only reason he did not do so in this instance was counsel’s instruction that under New York law it would be improper. In his view, an appraisal that allowed for functional obsolescence due to excess construction costs would still be considered a proper reproduction cost appraisal under industry standards, even if it yielded a result consistent with replacement cost.

Supreme Court adopted Con Edison’s calculation and a divided Appellate Division affirmed. The City appeals as of right based on the two-Justice dissent. We now affirm.

The valuation of assessed property is, of course, essentially a question of fact, the courts’ principal task being to discern the most accurate estimation of value for the specific property before it. Thus, where, as here, “the determinations of value made at nisi prius have been affirmed at the Appellate Division, those valuations must be upheld unless there has been an error of law in the use of an erroneous theory of valuation or unless the record does not contain evidence to support them” (Matter of B. Altman & Co. v City of White Plains, 57 NY2d 904, 905-906 [1982]).

The City argues that the trial court and Appellate Division erred as a matter of law by accepting Con Edison’s use of functional obsolescence due to excess construction costs in calculating depreciation. According to the City, no such measure should be included under the RCNLD method because, in doing so, the appraiser effectively substitutes the established reproduction cost method — which looks to the value of the current property on the taxable status day — with a replacement cost method focused on the value of a hypothetical future facility.

While recognizing that the RCNLD method should be utilized for valuing speciality property, we have not previously considered whether functional obsolescence due to excess construction costs can be included under that method (see e.g. Matter of Brooklyn Union Gas Co. v State Bd. of Equalization & Assessment, 65 NY2d 472, 485 [1985]; Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356-360 [1992]). In the context of this case, however, we conclude that the City’s arguments are misplaced. We cannot hold that the theory of valuation adopted by the courts below was erroneous as a matter of law.

The City’s expert witness agreed that functional obsolescence due to excess construction costs is in fact a proper element of depreciation under the reproduction cost methodology, even in cases where it yields a valuation consistent with replacement cost. Moreover, Con Edison’s appraisal methodology finds support in the relevant appraisal literature (see Appraisal Institute, The Appraisal of Real Estate ch 14 [“The Cost Approach”], ch 16 [“Depreciation Estimates”] [12th ed 2001]). Indeed, we have previously noted that one problem often identified with RCNLD valuation is “its tendency to ascribe too little weight to such factors as . . . functional obsolescence” (Town of Camillus, 80 NY2d at 357). Thus, allowing for increased consideration of functional obsolescence may, in the appropriate case, further the purpose of valuation proceedings — to arrive at a fair and realistic appraisal of the value of the property at issue (see Matter of Saratoga Harness Racing v Williams, 91 NY2d 639, 643 [1998]).

That being said, we do not adopt a rule that functional obsolescence due to excess construction costs is an appropriate consideration in every tax assessment matter where RCNLD is the applicable method. To the contrary, valuation remains largely a question of fact, and the courts have considerable discretion in reviewing the relevant evidence as to the specific property before them. Here, we find no legal error in that review.

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

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

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


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [869 NE2d 646, 838 NYS2d 470]
    In the Matter of Zoraida Melendez, Respondent, v Brian J. Wing, as Commissioner of the State of New York Office of Temporary and Disability Assistance, Appellant, et al., Respondents.
    Argued May 1, 2007;
    decided June 7, 2007

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, New York City (Oren L. Zeve, Barbara D. Underwood and Michael S. Belohlavek of counsel), for appellant.
    I. The terms of the executive budget and the accompanying regulation require that social services officials include any supplemental security income benefits when calculating an emergency shelter allowance. (Pataki v New York State Assembly, 4 NY3d 75; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Matter of Albano v Kirby, 36 NY2d 526; Riley v County of Broome, 95 NY2d 455; Matter of ATM One v Landaverde, 2 NY3d 472; Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249; Matter of Bernstein v Toia, 43 NY2d 437; Aluminum Co. of America v Central Lincoln Peoples’ Util. Dist., 467 US 380; Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161; Matter of Hickey v Carey, 275 App Div 964.) II. The emergency shelter allowance does not constitute “public assistance” within the meaning of Social Services Law § 131-c. (Anglin v Anglin, 80 NY2d 553; Matter of Blossom View Nursing Home v

      Novello, 4 NY3d 581; Iazzetti v City of New York, 94 NY2d 183; Matter of Nelson v Roberts, 304 AD2d 20.) III. Although Social Services Law § 131-c mandates inclusion of household members in a minor’s application for public assistance, it does not otherwise constrain the Office of Temporary and Disability Assistance’s exercise of its agency expertise. (King v Smith, 392 US 309; Bray v Dowling, 25 F3d 135; Skidgel v Maine Dept. of Human Servs., 994 F2d 930; Matter of Albano v Kirby, 36 NY2d 526.)

      Housing Works, Inc., New York City (Armen H. Merjian of counsel), for Zoraida Melendez, respondent.
    I. The Social Services Law prohibits appellant from considering Chastity’s supplemental security income benefits when calculating the family’s public assistance benefits. (Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198; Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274; Doe v Doar, 26 AD3d 787; Matter of Genin v Toia, 47 NY2d 959; Folsom v Blum, 554 F Supp 828; Matter of Pena v Dowling, 229 AD2d 497; Matter of Reeves v Fahey, 65 AD2d 633; Matter of Schimmel v Reed, 50 AD2d 1085, 40 NY2d 887; Matter of Hernandez v Barrios-Paoli, 93 NY2d 781; Albright v Metz, 88 NY2d 656.) II. Appellant’s argument that the emergency shelter allowance operates beyond the purview of the Social Services Law is wholly without support. (Matter of Rodriguez v Wing, 94 NY2d 192; Stone v McGowan, 308 F Supp 2d 79.) III. Under settled law, the regulation cannot contravene the invisibility statute. (Doe v Doar, 26 AD3d 787; Matter of Jones v Berman, 37 NY2d 42; Weiss v City of New York, 95 NY2d 1; Matter of Hernandez v Barrios-Paoli, 93 NY2d 781; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194; Seittelman v Sabol, 91 NY2d 618.) IV. The appropriation in no way abrogates the Social Services Law by implication, much less explicitly. (Matter of Genin v Toia, 47 NY2d 959; Local Govt. Assistance Corp. v Sales Tax Asset Receivable Corp., 2 NY3d 524; Matter of New York Pub. Interest Research Group v Dinkins, 83 NY2d 377; Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215; Iazzetti v City of New York, 94 NY2d 183; Matter of Levy v Evans, 103 AD2d 681; Pataki v New York State Assembly, 4 NY3d 75.) V. Appellant’s policy concerns are appropriately addressed to the Legislature, not the courts. (Doe v Doar, 26 AD3d 787.)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to decide whether section 131-c (1) of. the Social Services Law excludes minors who receive federal supplemental security income (SSI) from the family group for purposes of determining eligibility for and the level of public assistance. For the reasons that follow, we conclude that it does. We further decide that the Legislature superseded this requirement in its appropriation for the emergency shelter allowance (ESA) for the 2006-2007 fiscal year.

I.

In 2002, petitioner Zoraida Melendez resided in the Bronx with her spouse and three minor children. She received public assistance that included an ESA for individuals diagnosed with acquired immunodeficiency syndrome (AIDS) or human immunodeficiency virus (HIV)-related illness, and family members residing with them. Melendez’s public assistance was administered by the New York State Office of Temporary and Disability Assistance (OTDA) through the New York City HIV/AIDS Services Administration (HASA), a part of the City’s Human Resources Administration (HRA). Additionally, Melendez’s daughter Chastity received SSI because of a disability.

Melendez’s monthly public assistance totaled $2,019, the amount budgeted for Melendez, her spouse and minor children (excluding Chastity), comprising several components, including the ESA. In other words, when calculating Melendez’s public assistance, HASA did not count Chastity as a member of the household and disregarded her SSI benefits, which were then $568 a month. At some point in 2002, however, HASA for the first time budgeted Melendez’s ESA using software that reflected the methodology in 18 NYCRR 352.3 (k), rather than making the calculations manually. This forced HASA to include Chastity in the household and to take her SSI income into account when figuring the ESA, which cut Melendez’s monthly public assistance from $2,019 to $1,539, or $480 less than she had been receiving. In December 2002, she requested a fair hearing before an administrative law judge to contest HASA’s determination, which the Commissioner of OTDA (Commissioner) upheld in a decision dated February 7, 2003.

In April 2003, Melendez commenced this CPLR article 78 proceeding against the Commissioner, as well as against the Commissioner of HRA and HASA’s Acting Deputy Commissioner (collectively, City respondents), asking Supreme Court to review and annul the decision after fair hearing. On January 9, 2004, Supreme Court denied Melendez’s petition, emphasizing OTDA’s longstanding policy to include SSI benefits in an ESA calculation, as embodied in 18 NYCRR 352.3 (k) and provisions in the State’s 1993-1994 Aid-to-Localities Budget (L 1993, ch 53). On June 16, 2005, the Appellate Division reversed Supreme Court’s judgment, concluding that 18 NYCRR 352.3 (k) conflicted with Social Services Law § 131-c (1). The Court interpreted this statute as prohibiting HASA from considering Chastity’s SSI benefits as family resources when calculating Melendez’s ESA, and remanded the matter to Supreme Court for further proceedings.

In an order and judgment filed on July 21, 2006, Supreme Court granted Melendez’s petition in full; annulled the decision after fair hearing; and directed the Commissioner and the City respondents to remove Chastity from Melendez’s public assistance household and calculate her public assistance without consideration of Chastity’s SSI benefits, to pay Melendez $20,825, which he concluded was the sum erroneously withheld from her through June 2006, and to cease any efforts to recoup benefits deemed to have been an overpayment. The Commissioner successfully sought our permission to appeal, bringing up the Appellate Division’s prior order for review.

II.

Section 131-c (1) of the Social Services Law states that

“[f|or the purposes of determining eligibility for and the amount of assistance payable, the social services district shall, when a minor is named as an applicant for public assistance, require that his or her parents and minor brothers and sisters also apply for assistance and be included in the household for purposes of determining eligibility and grant amounts, if such individuals reside in the same dwelling unit as the minor applying for assistance. Any income of or available for such parents, brothers and sisters which is not disregarded under subdivision eight of section one hundred thirty-one-a of this article, shall be considered available to such household. The provisions of this subdivision shall not apply to individuals who are recipients of federal supplemental security income benefits or additional state payments pursuant to this chapter,[ ] or to individuals whose relationship to the minor is that of stepbrother or stepsister, or to any other individuals whose needs are excluded pursuant to department regulations consistent with federal law and regulations” (emphasis added).

This provision was adopted by the Legislature in 1985 to bring New York law into line with amendments to the federal Aid to Families with Dependent Children (AFDC) program, which were adopted by Congress as part of the Deficit Reduction Act of 1984 (DEFRA) (Pub L 98-369, 98 US Stat 494 [1984]; see Mem in Support, Bill Jacket, L 1985, ch 42, at 6). Prior to DEFRA, the custodial parent had the option to exclude a child with independent sources of income from the family for which AFDC eligibility and benefits were determined. This made sense whenever a child’s income (for example, support payments made by a noncustodial parent) exceeded the incremental AFDC benefit available to the family.

To limit this option, DEFRA adopted the filing-unit rule, which generally put parents and minor siblings who lived together into a single group whose combined income, resources and needs were pooled for purposes of determining AFDC eligibility and benefit level (see former 42 USC § 602 [a] [38], as added by DEFRA § 2640 [a] [3]). The filing-unit rule applied “except as otherwise provided” by the statutory provisions governing AFDC (id.). In this regard, DEFRA notably did not amend the so-called invisibility rule, an AFDC provision that prohibited states from taking an SSI recipient’s presence and income into account when figuring out a household’s AFDC eligibility and benefits (see former 42 USC § 602 [a] [24]; Corrigan v Affleck, 523 F Supp 498, 502 [D RI 1981] [“(C)ourts that have interpreted § 602 (a) (24) have been unanimous in concluding that this section mandates that the amount of assistance payments to AFDC recipients sharing households with SSI beneficiaries must be calculated ... as though the SSI beneficiaries living in the house were not in fact present”]; Calkins v Blum, 511 F Supp 1073, 1095-1096 [ND NY 1981] [discussing legislative history of the invisibility rule]; see also former 42 USC § 612, as added by Pub L 96-272 § 303, 94 US Stat 500 [1980]).

As the Senate Committee on Finance explained, the filing-unit rule “require [d] States to include in the filing unit the parents and all dependent minor siblings (except SSI recipients and any stepbrothers and stepsisters) living with a child who applie[d] for or receive[d] AFDC” (Sen Print 98-169, 98th Cong, 2d Sess, at 980). The Committee remarked that this change would “end the present practice whereby families exclude members with income in order to maximize family benefits, and will ensure that the income of family members who live together and share expenses is recognized and counted as available to the family as a whole” (id.). Similarly, the House Conference Report for DEFRA commented that “[the amended law] requires States to include in the filing unit the parents and all minor siblings living with a dependent child who applies for or receives AFDC. SSI recipients and stepbrothers and stepsisters are excluded from this requirement” (HR Conf Rep 98-861, 98th Cong, 2d Sess, at 1407, reprinted in 1984 US Code Cong & Admin News, at 1445, 2095). As the Eleventh Circuit Court of Appeals observed after reviewing section 602 (a) (38)’s text and legislative history, “Congress intended to exclude only recipients of SSI benefits, and any stepbrothers and stepsisters of the dependent child from [the filing-unit rule]” (Oliver v Ledbetter, 821 F2d 1507, 1512-1513 [11th Cir 1987] [concluding that Old Age, Survivors, and Disability Insurance (OASDI) benefits received by children must be included when calculating their co-resident siblings’ eligibility for AFDC]).

The Commissioner argues that section 131-c (1) leaves it up to him to decide how to handle minors who are SSI recipients when calculating public assistance benefits because its provisions “shall not apply” to them; and that “the fact that a mandatory inclusion rule shall not apply to certain persons [i.e., SSI recipients] does not logically compel an interpretation that a mandatory exclusion [i.e., of SSI recipients] exists.” While plausible in the abstract, this reading of the text conflicts with the federal law that section 131-c (1) was meant to mirror. In short, the Legislature must have intended section 131-c (1) to mandate exclusion of SSI recipients from the filing unit, rather than merely vest the Commissioner with discretion to exclude them. Otherwise, the statute would not have conformed with federal law in 1985 (specifically, the filing-unit and invisibility rules), as was required for the State to continue to participate in the AFDC program and to receive 50% reimbursement for its program expenditures. AFDC has since been repealed, but that does not somehow implicitly amend section 131-c (1), or alter the Legislature’s purpose and intent at the time it enacted this statute.

III.

The ESA exists only by virtue of an annual appropriation in the State budget. Accordingly, as an alternative defense of the way HASA calculated Melendez’s ESA in late 2002, the Commissioner claims that the budget, as supplemented by regulation, annually superseded any application of section 131-c (1) to ESAs. At a minimum, the Commissioner argues, the Legislature fixed any previous deficiency in the appropriation language when it adopted the State budget for fiscal year 2006-2007. In his view, Supreme Court thus “erred as a matter of law when, on remand, it omitted [Chastity’s] SSI benefits when calculating the retroactive benefits owed after April 1, 2006.”

The Legislature first enacted the ESA in the 1988-1989 Aid-to-Localities Budget, which included the following language:

“Notwithstanding any inconsistent provisions of title 8 of article 5 of the social services law, up to $950,000 of the amount appropriated herein shall be made available by the department to reimburse 50 percent of approved expenditures made by social services districts under the emergency assistance for aged, blind, and disabled program, after first deducting therefrom any federal funds received or to be received on account thereof, for emergency shelter payments which shall be provided to persons, determined to be eligible for or receiving federal supplemental security income benefits and/or additional state payments, who have been medically diagnosed as having acquired immune deficiency syndrome (AIDS) and who are homeless or are faced with homelessness and for whom no viable and less costly alternative housing is available. Each emergency shelter payment provided hereunder shall equal the difference between such person’s and his or her family’s net available income, including any public assistance and supplemental security income benefits and/or additional state payments, and such person’s and his or her family’s public assistance needs using the hotel/motel per diem rate equivalent as the applicable shelter maximum. The hotel/motel per diem rate equivalent shall equal the hotel/motel per diem provided to recipients of public assistance as specified in department regulations in effect January 1, 1988, and as appropriate to the size of the public assistance household which includes the person or persons with AIDS multiplied by 30” (L 1988, ch 53, § 1, at 984 [emphasis added]).

Thus, the Legislature approved a $950,000 appropriation to fund ESAs, which specified who was entitled to moneys from this appropriation (individuals eligible for or receiving SSI benefits who were diagnosed with AIDS and were homeless or facing homelessness and who had no less costly alternative housing available), and how to distribute these moneys (compute an ESA as the difference between individual/family net available income, including public assistance and SSI benefits, and individual/family public assistance needs using the hotel/motel per diem rate equivalent as the shelter maximum). The appropriation expressly superseded any contrary statutory provisions in title 8 of article 5 of the Social Services Law, which governs emergency assistance for aged, blind and disabled persons. On August 3, 1988, the Commissioner of Social Services adopted a companion emergency regulation, effective April 1, 1988, which tracked the conditions of eligibility and methodology for computing ESAs in the appropriation, and imposed related counseling and reporting requirements on social services districts (see former 18 NYCRR 397.11).

The language addressing ESAs in the 1989-1990 Aid-to-Localities Budget was the same as the previous year’s language, except that ESAs were also made available to individuals diagnosed with HTV-related illness (see L 1989, ch 53, § 1, at 828-829 [appropriation of $1.5 million for fiscal year 1989-1990]; see also L 1991, ch 53, § 1, at 991 [no change from language in budget for fiscal year 1989-1990; appropriation of $3 million for. fiscal year 1991-1992]). In 1992, however, the terms of the ESA appropriation were significantly altered for fiscal year 1992-1993:

“Notwithstanding any inconsistent provisions of law, the department shall reimburse 50 percent of approved expenditures made by social services districts under the emergency assistance for families, emergency assistance for adults, aid to dependent children, and home relief programs, after first deducting therefrom any federal funds received or to be received on account thereof, for emergency shelter payments which shall be provided to persons who have been medically diagnosed as having acquired immunodeficiency syndrome (AIDS) or HIV-related illness and who are homeless or are faced with homelessness and for whom no viable and less costly alternative housing is available. Each emergency shelter payment provided hereunder shall equal the difference between such person’s and his or her family’s net available income, including any public assistance and supplemental security income benefits and/or additional state payments, and such person’s and his or her family’s public assistance needs using an emergency monthly shelter allowance not to exceed $480 for the first person in the household and $330 for each additional person in the household, but in no event exceeding the actual monthly rent” (L 1992, ch 53, § 1, at 933-934 [emphasis added]).

Rather than setting out a maximum amount for ESAs as in previous budgets, this legislation authorized payment of up to 50% of approved expenditures made by social services districts under four different public assistance programs (emergency assistance for families, emergency assistance for adults, AFDC and home relief). Thus, ESAs were no longer available only to those AIDS or HIV sufferers who were eligible for or were receiving SSI benefits. In addition, the appropriation expressly superseded any contrary statutory provision, and based the ESA on a per capita allowance, up to a maximum of actual monthly rent. Importantly, the appropriation still specified that, for purposes of calculating the ESA, net available income would include any SSI benefits payable to applicants and/or their families.

Thereafter, the Legislature enacted identical language — with the same conditions governing eligibility for and distribution of ESAs — in its Aid-to-Localities Budget for fiscal years 1993-1994, 1994-1995 and 1995-1996 (see L 1993, ch 53, § 1, at 945; L 1994, ch 53, § 1, at 864-865; and L 1995, ch 53, § 1, at 973, respectively). In 1996, however, the appropriation language was reworked and substantially shortened, although the ESA was broadened to include transportation and nutrition payments, and there was a proviso added that ESA funds could not be used to pay costs eligible for reimbursement under medical assistance or other programs. Significantly for purposes of this appeal, the methodology for calculating or distributing ESAs was left out altogether (see L 1996, ch 53, § 1, at 632).

For the ensuing nine years, the language did not change; it was repeated verbatim in each year’s ESA appropriation (see L 1997, ch 56, § 1, at 1645-1646; L 1998, ch 53, § 1, at 775; L 1999, ch 53, § 1, at 858; L 2000, ch 53, § 1, at 816-817; L 2001, ch 53, § 1, at 544; L 2002, ch 53, § 1, at 1179-1180; L 2003, ch 53, § 1, at 919; L 2004, ch 53, § 1, at 880; L 2005, ch 53, § 1, at 762-763). As a result, for a decade the methodology for calculating an ESA was set forth only in regulation, principally 18 NYCRR 352.3 (k). OTDA argues that this was sufficient authority for it to disregard section 131-c (1) because the regulation maintained the formula approved annually by the Legislature for many years. We disagree. Once the methodology vanished from the appropriation language, and in the absence of any compensating language, 18 NYCRR 352.3 (k) lacked a statutory basis insofar as it conflicted with section 131-c (1).

After the Appellate Division’s decision in this appeal, however, the Legislature enacted the following appropriation language in the State budget for the 2006-2007 fiscal year:

“Notwithstanding any inconsistent provisions of law, funds appropriated herein shall be used by [OTDA] to reimburse 50 percent of the non-federal share of approved expenditures made by social services districts on or after April 1, 1996, after first deducting therefrom any federal funds received or to be received on account thereof, for emergency shelter, transportation, or nutrition payments which the district determines are necessary to establish or maintain independent living arrangements among persons who have been medically diagnosed as having acquired immunodeficiency syndrome (AIDS) or HIV-related illness and who are homeless or are faced with homelessness and for whom no viable and less costly alternative housing is available; provided, however, that funds appropriated herein may only be used for such purposes if the cost of such allowances [is] not eligible for reimbursement under medical assistance or other programs. Each emergency shelter payment provided hereunder shall equal the difference between such person’s and his or her family’s net available income, including any public assistance and supplemental security income benefits and/or additional state payments, and such person’s and his or her family’s public assistance needs, but in no event exceeding the actual monthly shelter payment” (L 2006, ch 53, § 1, at 742-743, eff Apr. 1, 2006 [emphasis added]).

This language clearly supersedes any inconsistent provisions of state law — which necessarily includes section 131-c (1) — and, of course, Congress repealed the federal invisibility rule in 1996. Further, OTDA is unambiguously instructed to consider applicants’ and/or their family members’ SSI benefits as income when budgeting ESAs. As a result, Supreme Court should have counted Chastity’s SSI benefits as family income for the months of April through June 2006, the last month covered by his order and judgment.

The Commissioner’s remaining arguments are without merit.

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be modified by remitting to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed, with costs to petitioner.

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Judgment appealed from and order of the Appellate Division brought up for review modified, etc.

      . The $2,019 consisted of $307 (basic needs for household of four); $38.70 (home energy allowance for household of four); $30 (supplemental home energy allowance for household of four); $1,450 ($480 for Melendez plus $330 for three additional individuals in household = $1,470, reduced to $1,450, Melendez’s actual monthly rent due, the maximum ÉSA); and $193.74 (an additional allowance for nutrition and transportation authorized by the City for which Melendez was eligible because of her HIV-related illness) = $2,019 (rounded).

      . According to calculations supplied by OTDA in this litigation, the $1,539 consisted of $687.70 (total assistance for household of four, including $307 [basic needs], $38.70 [home energy allowance], $30 [supplemental home energy allowance], and $312 [shelter allowance]); $658 (the ESA calculated on the basis of a household of five, using the methodology in 18 NYCRR 352.3 [k]); and $193.74 (an additional allowance for nutrition and transportation authorized by the City for which Melendez was eligible because of her HIV-related illness) = $1,539 (rounded). Principally because Melendez’s ESA was already capped at $1,450 (her actual monthly rent due), she was entitled to only a slightly larger benefit when the ESA was calculated for a household of five rather than four, which was offset by the treatment of Chastity’s SSI benefits as family income. The result was a significant net loss, causing the household’s allowance for shelter to drop by $480 a month, from $1,450 to $970 ($312 [normal shelter allowance for household of four] + $658 [the ESA]).

      . The City respondents filed an answer asking Supreme Court to dismiss Melendez’s petition against them. They took the position that they were bound by OTDA’s determination after fair hearing, and were “commanded by statute to follow the guidelines handed down by [OTDA] concerning eligibility for public assistance, including emergency shelter allowances,” citing Matter of Beaudoin v Toia (45 NY2d 343 [1978]) and Jiggetts v Grinker (148 AD2d 1, 21 [1st Dept 1989]). The City respondents apparently have not participated in this proceeding since filing their answer. The Attorney General represents that OTDA has provided them with copies of relevant correspondence during the course of the litigation.

      . “[A]dditional state payments” are payments by social services districts or by the federal government on behalf of the State “to aged, blind and disabled persons who are receiving, or who would but for their income be eligible to receive, federal supplemental security income benefits” (Social Services Law § 300 [5]).

      . The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) (42 USC § 601 et seq., as added by Pub L 104-193, 110 US Stat 2105 [1996]) abolished AFDC, the federal-state program that provided financial assistance for needy dependent children and the parents or relatives who lived with or cared for them, and established Temporary Assistance for Needy Families (TANF) in its place. Under TANF, each state receives a block grant with which to administer its welfare program.

      . Section 131-c (1) is codified in title 1 of article 5.


author: Smith, J. Ciparick, J.

text:
    [870 NE2d 133, 838 NYS2d 815]
    Maria Cubas et al., Appellants, v Raymond Martinez, Individually and as Commissioner of the New York State Department of Motor Vehicles, Respondent.
    Argued May 1, 2007;
    decided June 7, 2007

      POINTS OF COUNSEL

      Patterson Belknap Webb & Tyler LLP, New York City (Adam J Pessin, Steven A. Zalesin and Christine H. Miller of counsel), and Puerto Rican Legal Defense and Education Fund (Foster S. Maer and Jackson Chin of counsel), for appellants.
    I. The Department of Motor Vehicles’ rule requiring legal presence is invalid under the laws of New York. (Giuliani v Hevesi, 90 NY2d 27; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Seittelman v Sabol, 91 NY2d 618; Lorillard Tobacco Co. v Roth, 99 NY2d 316; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Uribe v Merchants Bank of N.Y., 91 NY2d 336; Matter of Jones v Berman, 37 NY2d 42; Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948; Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225; People v Cull, 10 NY2d 123.) II. The Department of Motor Vehicles’ Temporary Visitors Program is invalid under the laws of New York. (Wisholek v Douglas, 97 NY2d 740; Boreali v Axelrod, 71 NY2d 1; Matter of Schwartfigure v Hartnett, 83 NY2d 296; Matter of New York City Tr Auth. v New York State Dept. of Labor, 88 NY2d 225; Matter of Lue-Shing v Travis, 12 AD3d 802.) III. The legal presence rule and the Temporary Visitors Program violate equal protection. (Matter of Aliessa v Novello, 96 NY2d 418; Plyler v Doe, 457 US 202; Sugarman v Dougall, 413 US 634; Board of Educ., Levittown Union Free School Dist. v Nyquist, 83 AD2d 217; Trimble v Gordon, 430 US 762; Hernandez v Robles, 7 NY3d 338; Matter of Esler v Walters, 56 NY2d 306; Graham v Richardson, 403 US 365; Balbuena v IDR Realty LLC, 6 NY3d 338; Bernal v Fainter, 467 US 216.) IV. Plaintiffs are favored by a balance of the equities and will suffer irreparable injury in the absence of relief. (Pringle v Wolfe, 88 NY2d 426; Bell v Burson, 402 US 535; Krimstock v Kelly, 306 F3d 40; Stypmann v San Francisco, 557 F2d 1338; Conroy v Melton, 82 Misc 2d 750; Brad H. v City of New York, 185 Misc 2d 420; Chernoff Diamond & Co. v Fitzmaurice, Inc., 234 AD2d 200.)

      Andrew M. Cuomo, Attorney General, New York City (Gregory Silbert, Barbara D. Underwood and Michael S. Belohlavek of counsel), for respondent.
    I. All of plaintiffs’ claims should be dismissed as nonjusticiable. (Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233; Kihl v Pfeffer, 94 NY2d 118; Perez v New York City Hous. Auth., 229 AD2d 310; Rocco v KCL Protective Servs., 283 AD2d 317; Sarlund v Anderson, 205 F3d 973; Empire Blue Cross & Blue Shield v Finkelstein, 111 F3d 278; Matter of Hearst Corp. v Clyne, 50 NY2d 707.) II. The challenged documentation requirements are within the lawful authority of the Commissioner of Motor Vehicles. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337; Matter of Jones v Berman, 37 NY2d 42; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539; Boreali v Axelrod, 71 NY2d 1; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156; Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340; Motor Vehicle Mfrs. Assn. of United States, Inc. v State Farm Mut. Automobile Ins. Co., 463 US 29.) III. The one year/six month guideline is within the Commissioner of Motor Vehicles lawful authority. IV. The Department of Motor Vehicles’ documentation requirements and the one year/six month guideline need not be promulgated as regulations or be filed with the Secretary of State to be effective. (Matter of Elcor Health Servs. v Novello, 100 NY2d 273; Matter of Town of Middletown v State Bd. of Real Prop. Servs., 272 AD2d 657; Matter of HMI Mech. Sys. v McGowan, 277 AD2d 657; National Assn. of Ind. Insurers v State of New York, 207 AD2d 191, 89 NY2d 950; Caraballo v Reich, 11 F3d 186; People v Ditniak, 28 NY2d 74; People v Cull, 10 NY2d 123; Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225; Matter of Rubin v Campbell, 48 NY2d 805.) V. The challenged documentation requirements and the one year/six month guideline fully comport with state and federal equal protection guarantees. (Dallas v Stanglin, 490 US 19; FCC v Beach Communications, Inc., 508 US 307; Plyler v Doe, 457 US 202; Miller v Reed, 176 F3d 1202; Dixon v Love, 431 US 105; United States v Toner, 728 F2d 115; John Doe No. 1 v Georgia Dept. of Pub. Safety, 147 F Supp 2d 1369; Hernandez v Robles, 7 NY3d 338; LeClerc v Webb, 419 F3d 405, 444 F3d 428; Matter of Aliessa v Novello, 96 NY2d 418.)
   OPINION OF THE COURT

Smith, J.

The Department of Motor Vehicles (DMV) will not issue driver’s licenses to applicants who lack valid Social Security numbers (SSNs), unless those applicants prove that they are ineligible for SSNs. As proof of ineligibility the DMV requires applicants to submit immigration documents issued by the Department of Homeland Security (DHS).

Plaintiffs, claiming that this DMV policy is essentially an effort to deny driver’s licenses to immigrants not legally present in New York, challenge it as unauthorized by statute, as infringing constitutional protections and as violating procedural requirements applicable to agency rules and regulations. We hold that the Appellate Division correctly dismissed plaintiffs’ claims.

Facts and Procedural History

Plaintiffs are immigrants from foreign countries who live in the State of New York. Their complaint alleged that they, and the other members of the class they seek to represent, “have been or will be denied driver’s licenses or identification cards” because of their inability to produce SSNs “or otherwise document their legal immigration status” to the DMV’s satisfaction. More specifically, plaintiffs complained of two DMV practices.

First, plaintiffs challenged the so-called “one year six month” policy, under which the DMV required applicants who were authorized to remain in the United States only temporarily to submit documents showing that their authorization to remain had extended for at least a year, and that they had at least six months remaining in their legal stay. On April 23, 2007, DMV announced that it was rescinding the one year six month policy, and the Attorney General has represented to us that the rescission is permanent. We are satisfied that this aspect of the case is moot.

In the second branch of plaintiffs’ case, now the only one before us, they challenge the form of proof that the DMV demands of applicants for driver’s licenses who claim to be ineligible for SSNs. The practice plaintiffs complain of began in 2001, when the DMV made its procedure for verifying ineligibility more stringent.

Until 2001, an applicant who met all conditions to the issuance of a driver’s license except the submission of a valid SSN could get a license by submitting a letter (known as an “L676” letter) from the Social Security Administration (SSA) rejecting an application for a Social Security card on the ground that the applicant was ineligible for an SSN. The form of L676 letter acceptable to the DMV says the applicant’s DHS-issued documents show that no SSN can be issued — i.e., that the applicant, though authorized to be present in the United States, is not authorized to work here.

On September 6, 2001, the DMV began requiring applicants without SSNs to submit to the DMV not only an L676 letter, but their underlying DHS documents. Plaintiffs claim that, in imposing this new requirement, the Commissioner of Motor Vehicles acted without statutory authority and in an arbitrary and capricious manner; that he violated the mandatory rule-making requirements of the State Administrative Procedure Act and the State Constitution; and that he deprived them and others similarly situated of the equal protection of the laws.

Supreme Court granted plaintiffs’ motion for a temporary restraining order and preliminary injunction and denied the Commissioner’s cross motion to dismiss the complaint, holding, as to the claims that remain at issue here, that the DMV’s insistence on DHS documentation was unauthorized by statute and violated rule-making requirements. The Appellate Division reversed, declared the procedures used by the Commissioner to be within his authority and enforceable, and dismissed the complaint. Plaintiffs appeal to us as of right, pursuant to CPLR 5601 (b). We now affirm the Appellate Division’s order, except as it relates to the claims that have become moot.

Discussion

Plaintiffs challenge the DMV’s policy of requiring DHS documentation on substantive and procedural grounds. Both lack merit.

I

Vehicle and Traffic Law § 502 (1) requires applicants for driver’s licenses to “furnish such proof of identity, age, and fitness as may be required by the commissioner.” A 1995 amendment to section 502 (1) added the more specific requirement of an SSN: “In addition, the commissioner also shall require that the applicant provide his or her social security number.” Similar requirements apply to applicants for the renewal of driver’s licenses (Vehicle and Traffic Law § 502 [6]) and non-driver identification cards (Vehicle and Traffic Law § 490 [3] [a] [i]). Vehicle and Traffic Law § 508 (2) says that all applicants “shall furnish all information required by statute and such other information as the commissioner shall deem appropriate.”

The statutes might be thought to mean that only people with SSNs may receive driver’s licenses, but the Commissioner has not interpreted them so strictly. A DMV regulation, 15 NYCRR 3.9 (a), says: “An applicant for a license or a non-driver identification card or an applicant renewing such a license or such identification card must submit his or her social security number or provide proof that he/she is not eligible for a social security number.” (Emphasis added.)

The Commissioner thus concedes that people who do not have SSNs — i.e., people without authorization to work in the United States — may be entitled to driver’s licenses. Plaintiffs also make a concession: They do not challenge the DMV’s right to require proof that applicants are ineligible for SSNs. They admit in their brief that the DMV may properly verify “possession of a SSN or SSN ineligibility.” Indeed, they concede that the DMV’s former requirement for proof of ineligibility — an L676 letter from SSA, saying that the applicant’s DHS documents demonstrate ineligibility for an SSN — was valid. They object, however, to the DMV’s insistence on the submission of DHS documents as proof of ineligibility.

Plaintiffs’ concession is important. By making it, they essentially concede that the Commissioner need not issue driver’s licenses to undocumented aliens, because undocumented aliens cannot obtain L676 letters showing that they are ineligible for SSNs. To state the obvious, undocumented aliens lack documents, United States-issued documents at least, and the DMV’s right to insist on such documents is undisputed.

The question thus boils down to what United States-issued documents the DMV can lawfully require as proof of ineligibility for an SSN. Plaintiffs say it cannot require the submission of DHS documents, but their argument is flawed.

To get the kind of L676 letter required under former DMV policy — a policy plaintiffs concede was valid — a person must submit DHS documents to the SSA. The L676 letter submitted in this case as an example says: “YOUR DEPARTMENT OF HOMELAND SECURITY DOCUMENTS SHOW THAT YOU DO NOT HAVE WORK AUTHORIZATION . . . .” The obvious question arises: If an applicant has already submitted DHS documents to the SSA, why can he or she not submit the same documents to the DMV? Plaintiffs offer no answer to this question.

The Commissioner says that the DMV’s decision to require DHS documentation in addition to an L676 letter was necessary to prevent people from obtaining driver’s licenses by fraud. He points out that the L676 letter is a simple, publicly available form consisting of typed and sometimes handwritten words on white paper, easily faked by anyone with access to a Xerox machine. DHS documents, the Commissioner says, are not so easily manufactured. Again, plaintiffs offer no real answer: they have submitted no evidence to show either that the danger of fraud is not real, or that the insistence on DHS documentation will be ineffective in combating it. Nothing in the record suggests that the DMV’s concern about fraud is a subterfuge. The policy of requiring DHS documentation was not the result of a post-September 11 panic over immigration; the internal document adopting the policy is dated September 6, 2001.

In short, plaintiffs fail to dispute two key facts: the policy at issue imposes no significant burden on driver’s license applicants beyond the burden, which plaintiffs concede is properly imposed, of submitting an L676 letter; and the requirement of submitting DHS documentation to the DMV is a reasonable fraud-prevention measure. These undisputed facts defeat plaintiffs’ challenges to the substance of the DMV policy.

Plaintiffs argue that, by requiring DHS documentation showing ineligibility for an SSN, the Commissioner has exceeded his statutory authority to decide what materials applicants for licenses must submit. The statutes make plain that that authority is broad: applicants are to furnish “such proof of identity . . . as may be required by the commissioner” (Vehicle and Traffic Law § 502 [1]) and “such other information as the commissioner shall deem appropriate” (id. § 508 [2]). Indeed, plaintiffs admit that the Commissioner can require proof of ineligibility for an SSN in the form of an L676 letter based on DHS documents. They do not explain how, in light of that concession, it could possibly be beyond his authority to require submission of the DHS documents themselves. His choice to do so is clearly within the power granted by the Legislature.

Plaintiffs also argue that to require submission of DHS documents is a violation of equal protection. They frame the issue in terms of discrimination against aliens, or against undocumented aliens — but, as what we have already said makes clear, this case does not present any such issue. The line drawn by the policy plaintiffs challenge is only between applicants who submit L676 letters unaccompanied by the underlying DHS documents, and those who submit the underlying documents with the letters. This classification of applicants plainly creates no suspect class, infringes no fundamental right and raises no serious equal protection questions (see Affronti v Crosson, 95 NY2d 713, 718-719 [2001]).

Perhaps mindful of the gap in logic from which their argument suffers, plaintiffs insist that their attack on DMV policy is not limited to the DMV’s requirement that ineligibility for an SSN be proved by DHS documents. Painting with a broader brush, they attack what they call the DMV’s “legal presence requirement” for “all applicants for licenses and IDs.” But plaintiffs point to no specific policy or practice in which they say the “legal presence requirement” is embodied, other than the practice of requiring DHS documents to prove SSN ineligibility. Plaintiffs rely on internal documents in which the DMV has used the term “legal presence” — but these documents have nothing to do with any policy or practice that plaintiffs say is unlawful; the documents, dated in 2002, state that DMV requirements for proof of age — requirements plaintiffs do not challenge in this litigation — serve to verify “legal presence.”

We conclude that plaintiffs have failed to allege the existence of any “legal presence requirement” distinct from the DMV’s practice of insisting on DHS documents as proof of ineligibility for an SSN. And plaintiffs have failed, for the reasons we have explained, to allege facts showing that that practice is substantively unlawful.

II

Plaintiffs also challenge the DMV’s policy on procedural grounds. As they point out, while the requirement that each applicant must “provide proof that he/she is not eligible for a social security number” is embodied in a formal regulation, the requirement that that “proof” include DHS documents is reflected only in an internal DMV memorandum. Plaintiffs say that this informal method of imposing the requirement violates the State Constitution and the State Administrative Procedure Act.

Article IV § 8 of the State Constitution says, in relevant part:

“No rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission shall be effective until it is filed in the office of the department of state. The legislature shall provide for the speedy publication of such rules and regulations by appropriate laws.”

State Administrative Procedure Act § 202 (1) (a) says, in relevant part: “Prior to the adoption of a rule, an agency shall submit a notice of proposed rule making to the secretary of state for publication in the state register and shall afford the public an opportunity to submit comments on the proposed rule.”

DMV’s requirement of DHS documentation was not filed in the Department of State, was not published as a rule, and was not preceded either by a notice of proposed rulemaking or by an opportunity for public comment. Plaintiffs contend that the failure to follow these procedures renders the requirement invalid — as it does, if the requirement is a “rule” or “regulation” within the meaning of the constitutional and statutory provisions. The Commissioner argues, however, that the documentation requirement is merely an interpretation or explanation of a preexisting rule. We agree with the Commissioner.

A “rule” is defined by the State Administrative Procedure Act to include “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law,” but excluding “interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory” (State Administrative Procedure Act § 102 [2] [a] [i]; [b] [iv]). We have said that a “rule or regulation” is “a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers” (Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948, 951 [1985]). Our cases show that there is no clear bright line between a “rule” or “regulation” and an interpretative policy; but the requirement at issue here is the latter, not the former.

The requirement of DHS documentation does not impose a new obligation on applicants for driver’s licenses. The obligation to supply “proof that [the applicant] is not eligible for a social security number” is imposed by a preexisting regulation, 15 NYCRR 3.9 (a). The policy plaintiffs challenge merely specifies what proof is acceptable. The policy does not create or deny substantive rights of members of the public — i.e., it does not provide that some people are eligible and some ineligible for driver’s licenses — but sets forth the procedure for the agency to follow in deciding who meets a predetermined test for eligibility.

The policy resembles, in relevant ways, the one challenged in Matter of Elcor Health Servs. v Novello (100 NY2d 273, 279 [2003]). We held in Elcor that the Department of Health could require certain documentation from health care providers to distinguish between “restorative therapy” and “maintenance therapy” without promulgating those documentation requirements as a regulation. (See also People v Ditniak, 28 NY2d 74, 80 [1971] [implementation of general authority to close Thruway service areas did not require rulemaking].) By contrast, requirements that we have held to be “rules” or “regulations” were generally broader, and of more direct public impact, than the one at issue here (see People v Cull, 10 NY2d 123, 129 [1961] [setting of speed limits pursuant to general statutory authority held to require rulemaking]; Matter of Schwartfigure v Hartnett, 83 NY2d 296, 301 [1994] [requirement of 50% setoff for certain overpayments of unemployment insurance benefits held to require rulemaking]).

We therefore reject plaintiffs’ procedural challenge to the DMV’s requirement that DHS documents be submitted by applicants for driver’s licenses who lack SSNs.

* * *

Accordingly, the order of the Appellate Division should be modified to delete the declaratory judgment that Commissioner’s one year six month policy is within his authority and enforceable and, as so modified, affirmed, without costs.

Ciparick, J.

(dissenting in part). I agree with the majority that plaintiffs’ challenge to the one year/six month rule has been rendered moot. However, because I believe that the Commissioner’s imposition of a “legal presence” requirement in order to be eligible for a driver’s license was outside the scope of his authority and, in any event, violated the State Administrative Procedure Act, I respectfully dissent.

Under the Vehicle and Traffic Law, an applicant for a driver’s license “shall furnish such proof of identity, age, and fitness as may be required by the commissioner . . . [T]he commissioner also shall require that the applicant provide his or her social security number” (Vehicle and Traffic Law § 502 [1]). Similar requirements are in place for non-driver identification card (NDID) applicants (see Vehicle and Traffic Law § 490 [3]). The Commissioner has the authority to promulgate regulations in furtherance of these requirements (see Vehicle and Traffic Law § 508 [4]). As relevant here, in order to obtain or renew a driver’s license or NDID, the applicant “must submit his or her social security number or provide proof that he/she is not eligible for a social security number” (15 NYCRR 3.9 [a]). The failure to provide a Social Security number (SSN) or proof of ineligibility will result in disqualification from procuring or renewing a license or NDID (see 15 NYCRR 3.9 [b]).

The DMV has developed new procedures regarding proof of identity, date of birth and ineligibility for a Social Security number which, in effect, impose an additional requirement on applicants — “legal presence,” or proof consistent with lawful presence in the United States. An internal document dated April 19, 2002 known as a “Mailbag,” states that

“[Requiring proof of date of birth documentation is the single most important tool for preventing applicants, who do not have legal presence, from obtaining NYS driving privileges or NYS photo documents . . . [T]he only legitimate document that (s)he can present as proof of date of birth is [a Department of Homeland Security (DHS)] document.”

As proof of ineligibility for a SSN, the DMV under the old scheme would accept a form issued by the Social Security Administration (SSA), the SSA-L676, that lists several reasons why a person may be ineligible for a SSN, including that the individual has not produced the necessary documentation to establish identity or citizenship/lawful alien status. Recent internal DMV documents indicate that it will only accept a letter of ineligibility issued because the applicant’s “[DHS] documents show that [he or she does] not have work authorization and . . . [has] not provided a current valid non-work reason and supporting documentation for needing a social security number or replacement card.” In addition, DMV now requires applicants to provide current DHS documents in support of the ineligibility determination.

According to the Commissioner, these types of requirements are within his statutory authority. In particular, the Commissioner notes that it is important to be able to determine an applicant’s identity so that licenses and NDIDs are not used for fraudulent or criminal purposes. Moreover, the Commissioner asserts that the SSA-L676 form can be easily forged and that requiring current DHS documentation provides additional security since those documents can now be verified through the online SAVE (Systematic Alien Verification for Entitlements) system made available to the DMV through DHS.

Contrary to the Commissioner’s argument, it seems that the DMV has effectively added a requirement for license eligibility not authorized by statute. Through this policy the Commissioner is effectively setting immigration policy — an act well outside the scope of his authority — in the guise of verifying identity, which is clearly within his powers. “ ‘Even under the broadest and most open-ended of statutory mandates, an administrative agency may not use its authority as a license to correct whatever societal evils it perceives’ ” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 865 [2003], quoting Boreali v Axelrod, 71 NY2d 1, 9 [1987]).

In Matter of Jones v Berman (37 NY2d 42, 52-53 [1975]), the Court held that although the Social Services Commissioner may have promulgated a regulation in order to prevent fraud, the regulation imposed a requirement that was not found in the statute. “Administrative agencies can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute” (Jones, 37 NY2d at 53).

I do not dispute that fraud prevention is an important public purpose. However, as the trial court found, “evidence in the record indicates that DMV’s primary motivation has little to do with the identity of the applicants and more to do with national security issues” (2005 NY Slip Op 30091[U], at *10). If policy procedures requiring lawful presence in this country are to be implemented before the issuance of a driver’s license or a non-driver identification card, they should be implemented by the Legislature rather than the Motor Vehicles Commissioner. The Commissioner simply has not been vested with the authority to determine immigration or national security policies.

But even assuming the Commissioner’s authority is as broad as the majority implies and that the Commissioner is authorized to act in this regard, the requirement imposed is a rule in violation of State Administrative Procedure Act and the State Constitution. The Constitution provides that “[n]o rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission shall be effective until it is filed in the office of the department of state” (NY Const, art IV § 8). In addition, under the State Administrative Procedure Act, “no rule shall become effective until it is filed with the secretary of state . . . (State Administrative Procedure Act § 203 [1]; see also § 202 [1] [requiring notice of proposed rulemaking and opportunity for public comment]; Executive Law § 102 [1] [a].) We have previously held “that only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation” (Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948, 951 [1985]).

Here, the legal presence requirement is applied rigidly and without consideration for the circumstances of individual applicants (see Matter of Schwartfigure v Hartnett, 83 NY2d 296, 301-302 [1994]). The record does not support DMV’s assertion that its supervisors have the ability to make exceptions to this policy. Nor can the policy be deemed to relate to the “internal management” of the agency such that it would be excluded from the filing requirement under the State Constitution (see NY Const, art IV, § 8). Instead, it applies only externally, to persons seeking licenses or identification cards.

Certainly, the requirement to submit homeland security documents proving lawful presence in the United States constitutes “a fixed, general principle,” as it has become a prerequisite for obtaining a license or NDID that is contained neither in the statute nor in existing regulations. Thus, the Commissioner is not merely interpreting the statute or filling in the interstices (see Matter of Medical Socy., 100 NY2d at 866), but is rulemaking without the requisite filing and notice to the public in violation of the State Administrative Procedure Act. Those applicants who cannot adequately establish their lawful presence in the United States will not be issued a driver’s license or NDID in New York. The Commissioner’s argument that this is not “a fixed, general principle” due to the evolving nature of what is considered acceptable identification documentation is unconvincing. Those who are unable to satisfy the documentation requirements are foreclosed from obtaining a license or NDID, a result that is clearly not mandated by statute or duly promulgated existing regulations.

As a result, I would modify the order of the Appellate Division by granting plaintiffs’ motion for a preliminary injunction to the extent that the Commissioner should be enjoined from imposing a legal presence requirement by requiring the production of DHS documents as a condition precedent to the issuance or renewal of a driver’s license, learner’s permit or NDID.

Judges Graffeo, Read, Pigott and Jones concur with Judge Smith; Judge Ciparick dissents in part in a separate opinion in which Chief Judge Kaye concurs.

Order modified, etc.

      . Although the majority notes that this document actually refers to proof of date of birth (or age), it clearly reflects the intent to preclude those without legal presence from obtaining a driver’s license or NDID.

      . It should be noted that Congress has enacted the REAL ID Act of 2005 (Pub L 109-13 division B, 119 US Stat 302, 312). Title II, § 202 of this Act imposes “minimum document requirements and issuance standards for federal recognition” of driver’s licenses and identification cards. The Act states that “a Federal agency may not accept, for any official purpose, a driver’s license or identification card issued by a State to any person unless the State is meeting the requirements of this section” (tit II, § 202 [a] [1]). The Act requires a state to verify an applicant’s “lawful status” in the United States (§ 202 [c] [2] [B]). States have until May 2008 to comply with the Act, unless they apply for and receive an extension from DHS until December 31, 2009 (see Department of Homeland Security, REAL ID Proposed Guidelines: Questions and Answers, <http://www.dhs.gov/xprevprot/laws/gc_1172767635686.shtm> [last mod Mar. 1, 2007]). New York has yet to amend the Vehicle and Traffic Law to comply with this legislation.


author: Graffeo, J.

text:
    [869 NE2d 654, 838 NYS2d 478]
    Margarita Rivera, Respondent, v Katte Anilesh, D.D.S., et al., Defendants, and Indu Anilesh, D.D.S., Appellant.
    Argued May 3, 2007;
    decided June 12, 2007

      POINTS OF COUNSEL

      Landman Corsi Ballaine & Ford P.C., New York City (William G. Ballaine and Sophia Ree of counsel), for appellant.
    I. Applying governing New York case law, defendant’s custom and practice testimony is admissible to establish her conduct when she treated plaintiff. (Halloran v Virginia Chems., 41 NY2d 386; Rigie v Goldman, 148 AD2d 23; Nigro v Benjamin, 155 AD2d 872; Greenberg v New York City Tr. Auth., 290 AD2d 412; Biesiada v Suresh, 309 AD2d 1245; Gier v CGF Health Sys., 307 AD2d 729; Witherel v Balling Constr., 99 AD2d 646; Gushlaw v Roll, 290 AD2d 667; Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203; Orloski v McCarthy, 274 AD2d 633, 95 NY2d 767.) II. Plaintiff should be precluded from objecting to the admissibility of defendant’s custom and practice testimony on appeal. (First Intl. Bank of Israel v Blankstein & Son, 59 NY2d 436; Akamnonu v Rodriguez, 12 AD3d 187; Sam v Town of Rotterdam, 248 AD2d 850, 92 NY2d 804.) III. The motion court properly granted defendant summary judgment dismissing plaintiffs dental malpractice claims. (Alvarez v Prospect Hosp., 68 NY2d 320; Matosic v Gelb, 232 AD2d 221; Diaz v New York Downtown Hosp., 99 NY2d 542; Zuckerman v City of New York, 49 NY2d 557; Hooke v Speedy Auto Ctr., 4 AD3d 110; Parker v Mobil Oil Corp., 7 NY3d 434; DeCicco v Roberts, 202 AD2d 165; Pasquale v Miller, 194 AD2d 597.)

      Capriano Lichtman & Flach, LLP, New York City (Michael H. Skliar of counsel), for respondent.
    I. Plaintiff should not be precluded from addressing the Appellate Division’s, majority opinion. (Sega v State of New York, 60 NY2d 183; Chateau D’ If Corp. v City of New York, 219 AD2d 205; Matter of Daubman v Nassau County Civ. Serv. Commn., 195 AD2d 602.) II. The decision by the majority in the Appellate Division was correctly decided. (Halloran v Virginia Chems., 41 NY2d 386; Rigie v Goldman, 148 AD2d 23; Ferrer v Harris, 55 NY2d 285; Gushlaw v Roll, 290 AD2d 667; Glusaskas v John E. Hutchinson, III, M.D., PC., 148 AD2d 203; Acevedo v New York City Health & Hosps. Corp., 251 AD2d 21, 92 NY2d 808; Nigro v Benjamin, 155 AD2d 872; Biesiada v Suresh, 309 AD2d 1245.) III. Defendant’s custom and practice testimony only raises, at best, an inference and cannot by itself support the granting of summary judgment. (Lindeman v Slavin, 184 AD2d 910; Kindelan v Society of N.Y. Hosp., 277 AD2d 75.) IV. In the alternative, questions of fact preclude granting of summary judgment as to defendant Indu Anilesh. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Miller v Long Is. Light. Co., 166 AD2d 564; Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650; Speller v Sears, Roebuck & Co., 100 NY2d 38; Sisko v New York Hosp., 231 AD2d 420; Parker v Mobil Oil Corp., 7 NY3d 434.)

      LeBoeuf, Lamb, Greene & MacRae LLP, New York City (John M. Aerni and Carol A. Lafond of counsel), for New York State Dental Association and another, amici curiae.
    Habit evidence is admissible in professional malpractice actions in accordance with the standard enunciated in Halloran v Virginia Chems. (41 NY2d 386 [1977]). (Glusaskas v John E. Hutchinson, III, M.D., PC., 148 AD2d 203; Gushlaw v Roll, 290 AD2d 667; Acevedo v

      New York City Health & Hosps. Corp., 251 AD2d 21; Rigie v Goldman, 148 AD2d 23; Nigro v Benjamin, 155 AD2d 872; Biesiada v Suresh, 309 AD2d 1245; Lindeman v Slavin, 184 AD2d 910.)

      Michael A. Cardozo, Corporation Counsel, New York City (Pamela Seider Dolgow, Amy London and John Hogrogian of counsel), for City of New York and another, amici curiae.
    Custom and practice testimony about deliberate and repetitive procedures is admissible in professional malpractice actions as evidence of behavior on a particular occasion. (Halloran v Virginia Chems., 41 NY2d 386; Biesiada v Suresh, 309 AD2d 1245; Orloski v McCarthy, 274 AD2d 633, 95 NY2d 767; Rigie v Goldman, 148 AD2d 23; Gushlaw v Roll, 290 AD2d 667; Glusaskas v John E. Hutchinson, III, M.D., PC., 148 AD2d 203; Acevedo v New York City Health & Hosps. Corp., 251 AD2d 21, 92 NY2d 808.)

      Kramer, Dillof, Livingston & Moore, New York City (Matthew Gaier and Brian J. Isaac of counsel), for New York State Trial Lawyers’ Association, amicus curiae.
    The well-established law of this state permits the admission of evidence during a trial of a doctor’s custom and practice upon a showing of a deliberate, repetitive, and consistent response under like circumstances based upon a sufficient number of instances to give rise to an inference of its persistence. (Matter of Brandon, 55 NY2d 206; Coopersmith v Gold, 89 NY2d 957; Castracane v Campbell, 300 AD2d 704; Locapo v Suffolk County Water Auth., 284 AD2d 505; Zucker v Whitridge, 205 NY 50; Warner v New York Cent. R.R. Co., 44 NY 465; Hartley v Szadkowski, 32 AD2d 550; Halloran v Virginia Chems., 41 NY2d 386; People v Mertz, 68 NY2d 136; Rigie v Goldman, 148 AD2d 23.)
   OPINION OF THE COURT

Graffeo, J.

In this malpractice action by a patient against her dentist, we are asked whether the dentist’s routine procedure for administering an anesthetic injection is admissible as habit evidence supporting an inference that the same procedure was used when treating the patient. Based on the record before us, we conclude that the habit and routine practice testimony is admissible.

I

Plaintiff Margarita Rivera had been a patient of defendant Dr. Indu Anilesh, a dentist, since 1991. On May 4, 2000, Rivera went to Dr. Anilesh’s office with complaints related to a molar on the lower left-side of her jaw (tooth number 20). Dr. Anilesh determined that the tooth required extraction because it had a fractured restoration, was mobile in three planes and there was a loss of bone beneath the tooth. After discussing the extraction procedures with Dr. Anilesh, Rivera agreed that the tooth should be removed.

Before beginning the extraction, Dr. Anilesh performed a “lower left mandibular block injection” in order to numb the area near tooth number 20. According to Rivera, she continued to have sensation in this location after the injection so Dr. Anilesh gave her a second injection of the anesthetic. When Dr. Anilesh did so, Rivera claims she experienced extreme pain that felt like an electric shock. The injections sufficiently numbed Rivera’s mouth and the extraction was completed.

During the four days following the procedure, Rivera purportedly developed a fever, had pain in her mouth that prevented her from eating and experienced increased swelling in her face. As a result, she returned to visit Dr. Anilesh on May 8, 2000. Dr. Anilesh prescribed antibiotics, pain medication and a mouthwash. Rivera states that she took the medicine as directed but that it did not relieve her pain. After several days, she returned to Dr. Anilesh and was referred to an oral surgeon.

The surgeon who treated Rivera concluded that her pain was emanating from the left temporomandibular joint (TMJ). He instructed Rivera to eat soft foods and prescribed an anti-inflammatory drug and a muscle relaxer for her. During a follow-up appointment a week later, Rivera told the surgeon that her mouth felt better and that she had a full range of motion in her jaw, although she still felt some pain from the TMJ. Based on this progress, the surgeon discontinued the muscle relaxer and advised Rivera to return for treatment as needed.

Two weeks later, Rivera again visited the surgeon’s office and was seen by a different oral surgeon. Rivera reported that she still felt pain in her mouth and could not open her jaw completely. The doctor applied a local anesthetic and moist heat to the area that was painful. A week later, Rivera could barely open her mouth. She was examined by a third oral surgeon, who referred her to a local hospital. The physicians at the hospital diagnosed a severe infection in Rivera’s jaw that required her to be hospitalized for approximately three weeks.

Rivera commenced this action against Drs. Indu and Katte Anilesh, as well as the first two oral surgeons who treated her. Rivera’s complaint asserted causes of action for malpractice and lack of informed consent. As to the malpractice claim, Rivera alleged that Dr. Anilesh negligently performed the injections of anesthesia and extraction of the tooth, and failed to properly manage the ensuing infection.

Dr. Anilesh moved for summary judgment dismissing the complaint, relying on her deposition testimony and an affirmation from another oral surgeon. Dr. Anilesh testified that she did not recollect treating Rivera for the problem with tooth number 20 and, therefore, she could not recall what had occurred during the extraction. She did, however, state that the administration of this type of injection was a “routine procedure!]” that she did “every day” to “at least three to four or five” patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient’s medical chart but that no such note existed for Rivera. Dr. Anilesh’s expert opined that Dr. Anilesh’s treatment of Rivera was within the applicable standard of care in dentistry.

Rivera’s opposition to the motion for summary judgment was premised on her testimony that the second injection of anesthetic had caused her pain. She also submitted an expert affirmation from a dentist who averred that Dr. Anilesh had deviated from the accepted standard of care because a properly administered second injection in the same location as a first injection would not cause a patient any pain because that part of the mouth would already be numb from the first injection. The expert concluded that since Rivera felt pain, Dr. Anilesh could not have injected the second course of anesthesia in the proper location. Rivera’s expert therefore opined that the second injection was “much more likely to result in a subsequent infection than an injection in the proper location” because it could cause a hematoma to form, increasing Rivera’s susceptibility to an infection. Based on the proximity of the extraction site to the area of the infection, Rivera’s expert determined that the wrongly administered second injection — not the extraction of tooth number 20 — caused the introduction of bacteria and led to the infection.

Supreme Court granted Dr. Anilesh’s motion for summary judgment. The court found that Dr. Anilesh’s deposition testimony and her expert affirmation established that she acted in accordance with generally accepted dental practices. The court also held that, even if Dr. Anilesh gave the second shot in the wrong location, the opinion of Rivera’s expert that this could result in an infection was speculative and insufficient to preclude summary judgment.

The Appellate Division reversed and denied summary judgment in a divided decision. The majority concluded that Dr. Anilesh’s testimony about her customary practice for administering anesthesia was inadmissible and could not be used to raise an inference that Dr. Anilesh adhered to her habitual protocols when she treated Rivera. Two Justices agreed that summary judgment should not have been granted, but determined that Dr. Anilesh’s testimony regarding her routine technique for administering anesthetic injections was admissible because the procedure was deliberate and repetitive, and Rivera failed to offer any evidence that the protocol for administering such an injection varied with a patient’s individual circumstances. The concurring Justices, however, found that Rivera’s statement that she was injected twice, coupled with the opinion of her expert that the second injection was given in the wrong location, created an issue of fact as to whether Dr. Anilesh adhered to accepted standards of care. The Appellate Division granted Dr. Anilesh’s application for leave to appeal to this Court and certified the following question to us: “Was the order of this Court, which reversed the order of Supreme Court, properly made?”

II

In Halloran v Virginia Chems. (41 NY2d 386, 391 [1977]), we explained that “evidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions” because “one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again.” The applicability of this doctrine is limited to cases where the proof demonstrates “a deliberate and repetitive practice” by a person “in complete control of the circumstances” (id. at 392) as opposed to “conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances” (id. at 389). If these conditions are satisfied, “a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion” (id. at 392).

The plaintiff in Halloran, an automobile mechanic, had a practice of heating cans of Freon before transferring the gas to automobile air conditioning systems, contrary to the warnings on the labels. The plaintiff was injured when a can exploded after being heated. The manufacturer of the refrigerant sought to introduce evidence that the plaintiff had a habit of heating the cans by placing them into a container of water heated by an immersion coil. The plaintiff admitted using warm tap water on the day of the explosion, but denied that he used an immersion coil. Because there was evidence that the plaintiff had serviced hundreds of air conditioning units and handled thousands of cans of Freon, we observed that if the evidence tended to demonstrate that the plaintiff paired this practice with using an immersion coil on a sufficient number of occasions, such evidence would be admissible to raise an inference that an immersion coil was used on the day of the accident.

Aside from Halloran, we have had few opportunities to consider the contours of the habit evidence rule (see Ferrer v Harris, 55 NY2d 285, 294 [1982] [evidence that mother had told her daughter not to cross the street without looking for cars was not admissible as habit evidence because the plaintiff made no showing of “a persistent habit or regular usage by one in control of the circumstances in which it is employed”]) and none have occurred in the context of medical or dental procedures. The Appellate Divisions have generally adopted the proposition that normal documentation and notification protocols, routine warnings to patients and the processes for undertaking certain noninvasive medical procedures can qualify as habit evidence. In contrast, evidence concerning a physician’s surgical practices has been deemed inadmissible under the theory that every surgery is necessarily unique and varies depending on the nature of the patient’s medical condition and the actions of the doctor.

Without commenting on the propriety of these decisions, the record here supports the admissibility of Dr. Anilesh’s routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh’s dental practice and the nature of the routine conduct. Dr. Anilesh explained that she gave this type of injection every day to three to five patients and that she had been practicing as a dentist since 1982. Even by a conservative estimate, this testimony would indicate that Dr. Anilesh performed this procedure in the same manner thousands of times.

Nor do we believe that the nature of this injection process renders it unsuitable for consideration as habit evidence. Dr. Anilesh described the specific procedure that she used when injecting an anesthetic and her expert confirmed that this procedure was within the accepted standard of care for dentistry. Belatedly, there is no evidence suggesting that Dr. Anilesh’s preextraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains “proof of a deliberate and repetitive practice” — the mundane administration of a local anesthetic prior to a relatively routine tooth extraction — by a trained, experienced professional “in complete control of the circumstances” (Halloran, 41 NY2d at 392). We conclude that Dr. Anilesh’s habit evidence was properly considered by Supreme Court in conjunction with the motion for summary judgment and that it was sufficient to shift the burden to Rivera to provide evidence creating an issue of fact as to whether Dr. Anilesh committed malpractice.

Rivera’s proof satisfied her burden by raising factual issues that require a trial. Her testimony that she experienced extreme pain during the second injection, together with her expert’s opinion that the pain Rivera felt demonstrated that the second injection was administered improperly, raises a question of fact whether Dr. Anilesh negligently performed the injection. Although Dr. Anilesh argues that Rivera failed to proffer any evidence, aside from the opinion of her expert, that the alleged negligence caused the infection, the expert explained why the infection could not have originated from the site of the extracted tooth and stated that an injection in the wrong place could cause a hematoma that materially increased the possibility of an infection like the one that developed in Rivera’s jaw. Consequently, a jury must determine whether Dr. Anilesh committed malpractice and, if so, whether her negligence was the proximate cause of Rivera’s infection.

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

Chief Judge Kaye and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order affirmed, etc.

      . The claims against Dr. Katte Anilesh (the husband of Dr. Indu Anilesh) were later discontinued by stipulation and the claims against the oral surgeons were dismissed.

      . Rivera did not challenge the dismissal of the cause of action premised on lack of informed consent and that portion of the appeal was deemed abandoned by the Appellate Division.

      . See e.g. Gier v CGF Health Sys., 307 AD2d 729 (4th Dept 2003) (evidence that it was normal protocol to notify the on-call attending physician at the time of a patient’s admission); Orloski v McCarthy, 274 AD2d 633 (3d Dept 2000) (testimony of a custom for documenting patient complaints and maintaining medical records), lv denied 95 NY2d 767 (2000).

      . See e.g. Soltis v State of New York, 188 AD2d 201 (3d Dept 1993); Rigie v Goldman, 148 AD2d 23 (2d Dept 1989).

      . See e.g. Biesiada v Suresh, 309 AD2d 1245 (4th Dept 2003) (testimony concerning the protocol for transferring a stroke patient from a supine to a seated position); Nigro v Benjamin, 155 AD2d 872 (4th Dept 1989) (testimony concerning the protocol the defendant followed when conducting breast examinations).

      . See e.g. Gushlaw v Roll, 290 AD2d 667 (3d Dept 2002) (extraction of wisdom tooth); Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203 (1st Dept 1989) (videotape of subsequent surgery on different patient).

      . See e.g. Wilson v Volkswagen of Am., Inc., 561 F2d 494, 511 (4th Cir 1977) (in determining admissibility, “the key criteria are ‘adequacy of sampling and uniformity of response,’ ” quoting Fed Rules Evid rule 406, Advisory Comm Notes), cert denied 434 US 1020 (1978).