author: Read, J. Pigott, J.

text:
    [898 NE2d 563, 869 NYS2d 380]
    Arlene C. Farkas, Appellant-Respondent, v Bruce R. Farkas, Respondent-Appellant.
    Argued September 10, 2008;
    decided October 23, 2008

      POINTS OF COUNSEL

      Robert J. Tolchin, New York City, for appellant-respondent.
    I. Bruce Farkas’s appeal seeks review of myriad issues beyond the limited scope of his motion for leave to appeal which should not be considered. (Quain v Buzzetta Constr. Corp., 69 NY2d 376.) II. Bruce Farkas’s appeal improperly seeks review of factual determinations of the trial judge which were affirmed by the Appellate Division. III. If Bruce Farkas is granted any modification of the judgment, it should be conditioned on payment of the judgment or posting a bond, as appropriate. IV The trial court’s order regarding the apartment was proper. (Matisoff v Dobi, 242 AD2d 495.) V. The trial judge exhibited no hostility to Bruce Farkas. VI. The trial judge did not inject herself into the strategy of this case. VII. The trial court did not make its award based on marital fault.

      Lebow & Sokolow LLP, New York City (Mark D. Lebow of counsel), for respondent-appellant.
    The Appellate Division correctly held that the trial court should not have signed the judgment for $750,000 in 2005 based on a decision made in 2000, because section 202.48 of the Uniform Rules for the New York State Trial Courts (22 NYCRR 202.48) requires that all judgments must be presented within 60 days of the decision unless there is good cause shown for any delay, and no “good cause” for this five-year-long delay was shown. (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Andrea v Arnone, Hedin, Casker, Kennedy & Drake Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514.)

      Philip F. Alba, P.C., West Islip (Joseph C. Leshen, Philip F. Alba and Rita Aniano of counsel), for respondent-appellant.
    I. The court erred in granting plaintiff-respondent the total interest in the marital apartment relying on a writing that was not an agreement contemplated by Domestic Relations Law § 236 (B) (3). (Matisoff v Dobi, 90 NY2d 127; Corbin v Litke, 105 Misc 2d 94; Rush v Rush, 19 AD2d 846; Bennett v Bennett, 62 AD2d 1154; Feldman v Feldman, 204 AD2d 268; Foppiano v Foppiano, 166 AD2d 550; Chase v Chase, 208 AD2d 883; Marlinghaus v Marlinghaus, 202 AD2d 994.) II. The holding of this Court in Matisoff v Dobi (90 NY2d 127 [1997]) should be applied retroactively. (Stuart v New York City Health & Hosps. Corp., 7 Misc 3d 225; Broadnax v Gonzalez, 2 NY3d 148; Sheppard-Mobley v King, 10 AD3d 70.) III. The trial court erred in making a distributive award of 100% of all assets to plaintiff-respondent in lieu of maintenance. (McCauley v Drumm, 217 AD2d 829.) IV. The trial court failed to credit defendant-appellant with his separate property interest prior to making any equitable distribution award. V. The marital apartment, as a passive asset, should be valued as of today. (Weilert v Weilert, 167 AD2d 463; Hillmann v Hillmann, 109 AD2d 777; NK v MK, 17 Misc 3d 1123[A], 2007 NY Slip Op 52126[U]; D'Angelo v

      D’Angelo, 14 AD3d 476.) VI. Marital fault shall not be considered a factor in determining equitable distribution except in egregious cases that shock the conscience of the court. (Blickstein v Blickstein, 99 AD2d 287; Weilert v Weilert, 167 AD2d 463; McCann v McCann, 156 Misc 2d 540; Wenzel v Wenzel, 122 Misc 2d 1001; Brancoveanu v Brancoveanu, 145 AD2d 395; Rosenberg v Rosenberg, 126 AD2d 537; Wilbur v Wilbur, 116 AD2d 953; Wilson v Wilson, 101 AD2d 536; Havell v Islam, 301 AD2d 339.) VII. Plaintiff-respondent intentionally concealed her relationship with another man and misrepresented her finances to the court. VIII. The Alexander’s stock held in the name of Bruce Farkas was found by the trial court to be the separate property of Bruce Farkas, and thus there could be no dissipation of marital assets. (Hartog v Hartog, 85 NY2d 36; Price v Price, 69 NY2d 8; Gluck v Otis, 265 App Div 244.) IX. The tried court erred in awarding plaintiff money judgments for spousal support arrears because of plaintiffs misrepresentations to the court. (Getson v Getson, 91 AD2d 540; Matter of Carroll v Gammerman, 193 AD2d 202; Huebscher v Huebscher, 206 AD2d 295.) X. The court interjected itself as an advocate for plaintiff, Arlene Farkas. XI. The trial court erred in awarding plaintiff-respondent legal fees. XII. The errors committed by the trial court require a reexamination of the question of marital fault and judicial impartiality.
   OPINION OF THE COURT

Read, J.

These appeals stem from an action for divorce commenced 17 years ago by Arlene C. Farkas (the wife) against her then-husband of 32 years, Bruce R. Farkas (the husband). The wife’s divorce action alleged cruel and inhuman treatment and abandonment and requested equitable distribution of property and spousal support, that all remaining property be distributed to her, and that her husband be penalized for dissipation of marital property and egregious conduct. In a decision after trial dated July 17, 1996 (the 1996 decision)—at which time the husband was incarcerated for contempt of court because of his failure to pay pendente lite support—Supreme Court granted the wife a divorce on the ground of cruel and inhuman treatment.

The 1996 decision, which contained numerous findings and conclusions, recounted the husband’s claims that he could not find employment, that he relied on his mother for financial support, and that he possessed few assets other than the marital apartment. Supreme Court found that the wife, who did not work during the parties’ marriage, enhanced the husband’s business with her social connections, and enabled him to pursue his career by taking care of the household and the couple’s two children; that the husband seriously dissipated marital assets; and that, although the wife was entitled to $100,000 per year in lifetime spousal maintenance, the husband would likely never pay, condemning her to “the role of sleuth and detective, always in court.” Supreme Court sought to forestall this unpleasant outcome by granting the wife the exclusive right, title and interest in and to, and possession of, the parties’ $3.2 million cooperative apartment in Manhattan; all furniture, furnishings, antiques and works of art; all jewelry, collectibles and personal property she owned or had in her possession including stocks, bonds, equities, cash accounts and funds of any description; 50% of any interest or shares the husband might own in Alexander’s department store, the family business; and 100% of any remaining IRA, Keogh or other retirement plan or annuity of which the husband was the owner or beneficiary.

The 1996 decision also addressed a debt the parties owed to Chemical Bank, which is central to the wife’s appeal here. In 1994, Chemical Bank had commenced a foreclosure action against the husband and wife to recover a debt based on an equity line of credit that the husband had obtained by pledging as security the cooperative shares assigned to the marital apartment. Supreme Court required the husband either to pay all sums due to Chemical Bank and deliver to the wife a satisfaction of the debt and stipulation of discontinuance with prejudice of the foreclosure action; or, alternatively, to pay one half of the sums due to Chemical Bank and deliver to the wife a stipulation of discontinuance with prejudice of a replevin action that the husband’s mother had commenced against the wife. “In the event that [the husband] fails to comply with one of these alternatives within 45 days,” the court opined, “[the wife] may enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank” (emphasis added).

Supreme Court further specified that

“[o]n condition that [the husband] within 45 days from the date hereof complies with the condition above and pays all outstanding pendente lite support due and owing to [the wife] pursuant to all money judgments which were heretofore entered and remain unpaid along with any interest thereon to date, he is relieved of all obligations to pay spousal maintenance, both retroactive and future[,] and the current order of contempt under which he remains incarcerated will be vacated.
“The distribution of property set forth above, if it is promptly paid[,] is meant to be in lieu of ongoing spousal maintenance .... However, if the Chemical Bank debt and outstanding money judgments for spousal maintenance are not paid in full within 45 days of the date hereof[,] this decision may be modified to include additional retroactive spousal maintenance and appropriate ongoing spousal maintenance.”

The Court ended its 1996 decision with the instruction to ‘ ‘ [s] ettle judgment. ’ ’

Supreme Court’s subsequent judgment dated October 28 and filed December 10, 1996 (the 1996 judgment, which is captioned “COUNTER-JUDGMENT OF DIVORCE”) granted the divorce and recited the distribution of property set out in the 1996 decision. Since the husband had not complied with either alternative for discharging his obligation with respect to the Chemical Bank debt, Supreme Court included the following decretal paragraph in the 1996 judgment:

“ORDERED, ADJUDGED and DECREED, [the husband] is directed to pay in full all sums due to Chemical Bank, including interest, penalties, legal fees and other costs and to deliver to [the wife] or her attorneys . . . evidence of satisfaction of the debt and a stipulation of discontinuance with prejudice of the action brought by Chemical Bank. In lieu thereof, at his option [the husband] may pay one-half of all sums due to Chemical Bank and deliver a discontinuance with prejudice of the action for replevin brought by [the husband’s mother] against [the wife]. In the event that [the husband] fails to comply with either option within 30 days from the date hereof, [the wife] shall be entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order” (third and fourth emphases added).

The husband appealed. The Appellate Division affirmed, concluding that “[t]he trial court’s distribution of all of the known marital assets to [the wife], as well as award of maintenance and counsel fees to [the wife], is amply supported by the record, including proof that [the husband] had repeatedly and willfully disobeyed interim support orders and dissipated marital property” (Farkas v Farkas, 251 AD2d 4 [1st Dept 1998]).

An amended judgment of divorce, dated April 14 and filed April 30, 1999 (the 1999 amended judgment), repeated the 1996 judgment’s provision regarding the debt to Chemical Bank. Specifically, the 1999 amended judgment reiterated that “[i]n the event that [the husband] fails to comply with either option within thirty (30) days from [the] date hereof, [the wife] shall be entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order” (emphasis added).

By order to show cause granted June 8, 2000, the wife sought an “Order . . . [p]ursuant to the Order [sic] of this Court dated July 17, 1996, entering a Final Judgment against [the husband] for the sum of $984,401.17, representing the principal sum due Chemical Bank, with interest and penalties.” Supreme Court consolidated this motion with an already-pending motion made by the husband and the wife’s cross motion, and disposed of all these matters in a decision and order dated October 13 and filed October 17, 2000 (the 2000 decision and order).

In the 2000 decision and order, Supreme Court granted the wife’s application “for a money judgment in her favor against [the husband] in the sum of $984,401.17 in respect of the Chemical Bank foreclosure action.” In so doing, Supreme Court restated, in its entirety, the relevant decretal paragraph from the 1999 amended judgment, italicizing the final sentence, presumably for emphasis. Immediately thereafter, the court stated that “[t]here [was] no question that [the husband] ha[d] not complied with [this provision of] the Judgment and according to the unequivocal terms thereof, [the wife] is entitled to the judgment she seeks” (emphasis added).

At the very end of the 2000 decision and order, Supreme Court set out six paragraphs disposing of the motions and the cross motion. The fifth paragraph provided as follows:

“ORDERED that [the wife’s] application . . . for a money judgment in her favor against [the husband] in the sum of $984,401.17 in respect of the Chemical Bank foreclosure action, in addition to the bank’s attorneys’ fees, is granted and [the wife] may settle the judgment thereon. Upon [the wife’s] suggestion, such judgment shall contain language staying execution thereon pending determination or other disposition of the Chemical Bank foreclosure action” (emphasis added).

In May 2005—4/2 years after Supreme Court’s 2000 decision and order—the wife served the husband with a notice of settlement and proposed judgment regarding the monies owed Chemical Bank. The proposed judgment stated that the wife and Chemical Bank had settled the foreclosure action for $750,000 in August 2003; accordingly, the proposed judgment against the husband was in the principal amount of $750,000.

The husband opposed entry, citing 22 NYCRR 202.48 (Rule 202.48). Subdivision (a) states that

“[p]roposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.”

Subdivision (b) specifies that failure to submit the order or judgment as directed within the 60-day time frame constitutes an abandonment of the motion or action except upon “good cause shown” (see 22 NYCRR 202.48 [b]).

Supreme Court thereafter signed a paper captioned “ORDER/ JUDGMENT,” dated June 20 and filed June 23, 2005 (the 2005 judgment), which stated that the wife had

“duly moved this Court by Order to Show Cause . . . for a money judgment against [the husband] in the amount of $984,401.17, representing the principal sum due Chemical bank [sic] with interest and penalties,
“AND, as to [the wife’s] application . . . for a money judgment in her favor and against [the husband] in the amount of $984,401.17, in respect to the Chemical Bank foreclosure action, in addition to the bank’s attorney’s fees, was granted. Furthermore, the Chemical Bank foreclosure action was resolved by Stipulation of Settlement between [the wife] and Chemical Bank for [$750,000] on or about August 6, 2003,
“NOW, after reading said Cross-Motion and Order to Show Cause and the [2000 order], . . .
“IT IS HEREBY ORDERED, that [the wife’s] application ... is granted in that a Money Judgment is hereby granted in favor of [the wife] . . . against [the husband] ... in the amount of $750,000.00 with interest from August 6, 2003, and that [the wife] shall have execution therefor[ ].”

After the husband appealed, the Appellate Division, with two Justices dissenting, reversed the judgment on the law, vacated it, and dismissed the underlying claim as abandoned pursuant to Rule 202.48. Citing our decisions in Brill v City of New York (2 NY3d 648 [2004]) and Miceli v State Farm Mut. Auto. Ins. Co. (3 NY3d 725, 726 [2004]), the majority considered itself “constrained to reverse and vacate” because the wife failed to provide any explanation for her untimely submission of the proposed judgment other than “law office failure” (Farkas v Farkas, 40 AD3d 207, 207, 211 [2007]). While acknowledging “that there was arguably good cause for delaying settlement of the judgment until after the Chemical Bank foreclosure action was settled in August 2003,” the majority concluded that “the record reveals no justification for [the wife’s] failure to submit a judgment for an additional year and nine months thereafter” (id. at 209).

The dissenting Justices acknowledged that Rule 202.48 required the wife to show good cause for not timely settling judgment. They asserted, however, that “the complex matrix of litigation between and involving these former spouses is the framework in which ... a satisfactory explanation” for the delay could be found (id. at 214). Because Supreme Court “was intimately familiar with the parties’ litigation history,” the dissenting Justices would have deferred to the trial court’s discretionary determination that good cause existed (id.). Crucially, they also pointed out that both the 1996 judgment and the 1999 amended judgment “authorized [the wife] to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order” (id. at 215).

The wife appealed the Appellate Division’s May 2007 order to us as of right, based on the dual dissent (see CPLR 5601 [a]). The husband sought leave to appeal from the same order, which we granted. His appeal brings up for review the Appellate Division’s June 1998 order affirming the 1996 judgment (see CPLR 5501 [a] [1]). We now reverse the Appellate Division’s May 2007 order, and uphold its June 1998 order.

The 1996 judgment and the 1999 amended judgment unquestionably were not subject to Rule 202.48’s 60-day requirement. These judgments carried out the 1996 decision, which directed the parties to “[s]ettle judgment.” Moreover, the decretal paragraph specifically addressing the Chemical Bank monies provided that the wife was “entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order” (emphasis added). That is, this paragraph set out a “simple judgment for a sum of money which speaks for itself,” and therefore falls outside the ambit of Rule 202.48 (Funk v Barry, 89 NY2d 364, 367 [1996]). As we emphasized in Funk, the “settle” or “submit” trigger for the 60-day limitation of Rule 202.48 (a) “does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court’s signature on a proposed judgment” (89 NY2d at 368 [citations omitted]). And to further drive home the point that no further court action was, in fact, contemplated or required with respect to the monies owed Chemical Bank, Supreme Court added the phrase “without further order” to the typewritten text of the proposed counterjudgment submitted in 1996.

Nonetheless, the wife’s attorney moved for an order to show cause allowing the wife to enter a judgment against the husband for the Chemical Bank monies, even though she was already entitled to this relief—without a limitations period—under the plain terms of the 1999 amended judgment and Funk (see 89 NY2d at 368 [“Significantly, the Legislature has chosen not to place a time restriction on the completion of entry” (emphasis added)]). This unnecessary motion led to the discussion in the 2000 decision and order in which Supreme Court stated—for the third time—that the wife was entitled to the monies owed Chemical Bank without further order, and then unaccountably ordered the wife to “settle . . . judgment” for this very relief. Rule 202.48 cannot deprive a party of a judgment where it has been improperly or unnecessarily invoked in the first place.

Finally, the husband argues in his appeal that Supreme Court punished him for his infidelity and did not make sufficient findings of economic fault to warrant distributing all the marital assets to the wife. We cannot say, however, that Supreme Court abused its discretion as a matter of law when distributing the marital property. Indeed, the record fully supports Supreme Court’s affirmed findings and conclusions of law.

Accordingly, on the appeal of Arlene C. Farkas, the order of the Appellate Division should be reversed, and the order and judgment of Supreme Court reinstated, and on the appeal of Bruce R. Farkas, the order of the Appellate Division, insofar as it brings up for review a prior order of that court, should be affirmed, with one bill of costs to Arlene Farkas.

Pigott, J.

(dissenting on the appeal by Arlene Farkas). The majority concludes that “Rule 202.48 cannot deprive a party of a judgment where it has been improperly or unnecessarily invoked in the first place” (majority op at 310). While I agree with this principle, I believe that Supreme Court’s 2000 decision and order directing Arlene Farkas (the wife) to “settle . . . judgment” did, indeed, fall within the ambit of 22 NYCRR 202.48 (see Funk v Barry, 89 NY2d 364, 365 [1996]). Thus, even accepting as true the majority’s position that the 1996 judgment and 1999 amended judgment were not subject to Rule 202.48, the 2000 order in my view was, triggering the wife’s obligation to submit an order within 60 days. Because I cannot agree with the majority’s analysis of Rule 202.48, I respectfully dissent with respect to the wife’s appeal. I also disagree, however, with the approach taken by the Appellate Division.

When a trial court directs a party to “settle” or “submit” an order and that party, without good cause, fails to do so within 60 days, Rule 202.48 instructs a court to deem abandoned the “motion or action” in response to which the court directed submission of the order (22 NYCRR 202.48 [b]). It does not follow, however, that the party may not renew its motion and cure the untimeliness of its proposed order. The Appellate Division majority concludes that the rule was intended to deprive a party of a substantive victory. However, in my view, the proper function of Rule 202.48 is to facilitate and quicken the disposition of cases that require court approval of an order drafted by the parties (see Funk, 89 NY2d at 368), by providing a timetable whereby a specific motion will be deemed abandoned, if late. Its purpose is not to deprive a party of any underlying relief or threaten her with that loss. Nor does our decision in Brill v City of New York (2 NY3d 648 [2004]) dictate a contrary conclusion.

A hypothetical best illustrates my view. Suppose plaintiff sues defendant, alleging a Labor Law § 240 violation resulting in injury. Plaintiff, who intended to move for summary judgment, commits a Brill violation and misses the 120-day deadline of CPLR 3212 (a). The motion for summary judgment will not be entertained, with the result being a good deal of inconvenience and the expense of a liability trial that could have been avoided (see Brill, 2 NY3d at 653). Plaintiffs victory will be delayed, but it will not be forfeited. And why should it be, since plaintiff was entitled to judgment as a matter of law?

Now vary the scenario, so that plaintiffs attorney timely files and wins a motion for summary judgment establishing that defendant violated Labor Law § 240 and that the violation proximately caused plaintiffs injuries, and the trial court directs plaintiff to submit an order. Through law office oversight, plaintiffs counsel fails to submit the order within the 60-day deadline of Rule 202.48. Time passes, and counsel finally discovers the error. Plaintiff moves again for judgment, attaching a copy of the original decision granting summary judgment and an affidavit noting the error but giving no valid explanation, having no excuse for the untimeliness. If Rule 202.48 operates to vitiate a judgment, as the Appellate Division majority proposes, then after plaintiff fails to timely submit a proposed order, the trial court must not only deny plaintiffs motion but also dismiss a valid claim established before the court as a matter of law.

A similar paradox would emerge when plaintiffs case is patently meritless and defendant wins summary judgment but fails to submit the order within the 60-day deadline of Rule 202.48. Professor David Siegel notes the resulting dilemma. “Should such a case now be tried, even though it has been judicially determined that there is nothing to try? Does the abandonment mean to turn things around 180 degrees, so as to declare summary judgment for the opposing side, the one that lost on the motion?” (Siegel, NY Prac § 251, at 428 [4th ed], discussing Feldman v New York City Tr. Auth., 171 AD2d 473 [1st Dept 1991].) I think not. “[T]he interests of justice demand that the court not be burdened with the trial of a demonstrably meritless action. A contrary result would not bring the repose to court proceedings that [Rule] 202.48 was designed to effectuate, and would waste judicial resources.” (Russo v City of New York, 206 AD2d 355, 356 [2d Dept 1994] [citations and internal quotation marks omitted]; accord Russell Kikenborg v New York City Health & Hosps. Corp., 291 AD2d 281 [1st Dept 2002].)

The Appellate Division majority creates an irrational distinction between a party who fails to meet a CPLR 3212 (a) deadline and one who misses a Rule 202.48 deadline. Whereas the party who runs afoul of Brill will receive an adjudication that is at worst redundant, the party who has already won on the merits but misses a Rule 202.48 deadline hands a substantive victory to his opponent. Brill threatens an untimely summary judgment movant with the expense and inconvenience of a trial, but the deterrent object of Brill is tempered with justice: no party forfeits substantive rights. Under the Appellate Division’s application of Brill to Rule 202.48, however, a party who has won a right to a judgment must forfeit that right, and has no opportunity to regain it, in the event his or her attorney inadvertently delays submission of the pertinent order.

In the present case, the wife, who has been granted a money judgment in her favor in the amount of $750,000, plus interest, would, under the Appellate Division analysis, lose her judgment. She would suffer that loss simply because her counsel— focused on enforcing other long-outstanding money judgments against her duplicitous ex-husband, who had fled from New York, “condemning her to ‘the role of sleuth and detective, always in court’ ” (majority op at 304)—delayed in serving a proposed order. Such an unbending doctrine and harsh result do not reflect the intent of Rule 202.48. What the wife should lose is the time and expense necessary to duplicate her attorney’s efforts—resulting, perhaps, in a lesser priority for her judgment or in a lost opportunity to execute on certain assets of the defendant—but certainly not what the courts have substantively found to be her right.

I would hold that the wife abandoned the motion that Supreme Court decided in her favor in October 2000, by waiting until May 2005 to submit her proposed order, but she did not abandon her substantive right to a judgment. Therefore I would modify the order of the Appellate Division, affirming insofar as the Appellate Division reversed the order and judgment of Supreme Court awarding the wife $750,000, plus interest, but reversing so much of the order as dismissed the claim underlying the wife’s judgment as abandoned, and would dismiss the motion on which the order and judgment were entered without prejudice to any future application by plaintiff for similar relief.

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur on the appeal by Bruce Farkas.

Chief Judge Kaye and Judges Ciparick, Graffeo and Jones concur with Judge Read on the appeal by Arlene Farkas; Judge Pigott dissents on the appeal by Arlene Farkas and votes to modify in a separate opinion in which Judge Smith concurs.

On the appeal by Arlene Farkas, order reversed and order and judgment of Supreme Court, New York County, reinstated, and on the appeal by Bruce Farkas, order, insofar as it brings up for review a prior Appellate Division order, affirmed, with one bill of costs payable to Arlene Farkas.

      . This lawsuit subsequently went to trial, where the wife obtained a jury verdict in her favor (see Farkas v Farkas, 168 F3d 638 [2d Cir 1999]).

      . The phrase “without further order” was added to the typewritten text in handwriting initialed by the Justice.

      . This is the sentence providing that “[i]n the event that [the husband] fails to comply with either option within thirty (30) days from [the] date hereof, [the wife] shall be entitled to enter a money judgment against [the husband] for the total amount due and owing to Chemical Bank without further order” (emphasis added).


source: Caselaw Access Project

author: Smith, J. Ciparick, J.

license: Public Domain

text:
    [898 NE2d 17, 869 NYS2d 4]
    Katz Park Avenue Corp., Respondent, v Bianca Jagger, Appellant, et al., Defendants.
    Argued September 3, 2008;
    decided October 23, 2008

      POINTS OF COUNSEL

      Law Offices of Roger D. Olson, New York City (Roger D. Olson of counsel), Lewis & Roberts, PLLC, Raleigh, North Carolina (Daniel K. Bryson of counsel), and Law Office of Ryan S. Goldstein, PLLC, New York City (Ryan S. Goldstein of counsel), for appellant.
    I. The Appellate Division majority opinion erred in holding, as a matter of law, that a foreign citizen with a B-l/ B-2 visa is precluded from maintaining a “primary residence” in New York City. (Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Riverside Syndicate, Inc. v Munroe, 10 NY3d 18; Berkeley Assoc. Co. v Camlakides, 173 AD2d 193, 78 NY2d 1098; Hughes v Lenox Hill Hosp., 226 AD2d 4; MSG Pomp Corp. v Doe, 185 AD 2d 798; Chelsmore Apts. v Garcia, 189 Misc 2d 542; East End Temple v Silverman, 199 AD2d 94; Matter of New York State Labor Relations Bd. v Le Crepe—No. 3, 78 Misc 2d 171; Rocky 116 v Weston, 195 Misc 2d 363; Thornton v Baron, 5 NY3d 175.) II. The Appellate Division majority erred in granting summary judgment where plaintiff failed to establish its entitlement to judgment as a matter of law because (a) the notice of termination was predicated upon a lease that was declared a “nullity” for its purported attempt to exempt the subject apartment from the Rent Stabilization Law, and (b) there was no evidence in admissible form tending to establish that defendant maintained her primary residence at any location other than at the subject premises. (Drucker v Mauro, 30 AD3d 37; Riverside Syndicate, Inc. v Mun-

      roe, 10 NY3d 18; Draper v Georgia Props., 94 NY2d 809; Glenbriar Co. v Lipsman, 5 NY3d 388.) III. The Appellate Division majority erred in remanding plaintiffs application for an award of attorney’s fees and use and occupancy where it had failed to provide the court with a copy of the lease that was a nullity and, therefore, void ah initio. (Riverside Syndicate, Inc. v Munroe, 10 NY3d 18; Rose v Elias, 177 AD2d 415.)

      Belkin Burden Wenig & Goldman, LLP, New York City (Magda L. Cruz, Sherwin Belkin and Kristine L. Grinberg of counsel), for respondent.
    I. Appellant’s B-2 temporary tourist visa bars appellant from maintaining a primary residence in the United States. (Emay Props. Corp. v Norton, 136 Misc 2d 127; Sommer v Ann Turkel, Inc., 137 Misc 2d 7, 139 Misc 2d 892; Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Emel Realty Corp. v Carey, 288 AD2d 163; Matter of Stahl Assoc. Co. v State Div. of Hous. & Community Renewal, Off. of Rent Admin., 148 AD2d 258; Chelsmore Apts. v Garcia, 189 Misc 2d 542; Glenbriar Co. v Lipsman, 5 NY3d 388; Jain v Immigration & Naturalization Serv., 612 F2d 683; Ruiz-Almanzar v Ridge, 485 F3d 193; Mugalli v Ashcroft, 258 F3d 52.) II. The Appellate Division properly held that appellant failed to meet the primary residence criteria under the rent stabilization laws. III. The Appellate Division properly remanded the owner’s application for attorney’s fees and use and occupancy to the lower court.
   OPINION OF THE COURT

Smith, J.

We hold that, at least in the absence of unusual facts, a foreign national who is in the United States on a tourist visa cannot meet the “primary residence” requirement of New York City’s rent regulations.

Defendant’s landlord brought this ejectment action to remove her from a rent stabilized apartment in Manhattan. The landlord alleged that “the Premises are not occupied ... as the Tenant’s primary residence.” In support of a motion for summary judgment, the landlord submitted photocopies of pages from defendant’s passport, showing that she is a British citizen and was admitted to the United States on a “B-2” visa, commonly known as a tourist visa. In response to the motion, defendant submitted no evidence as to her primary residence, essentially taking the position that the landlord had failed to meet its burden of proof.

Supreme Court denied the landlord’s motion (2005 NY Slip Op 30126[U] [2005]), but the Appellate Division reversed, with two Justices dissenting (46 AD3d 186 [2007]). The Appellate Division granted defendant leave to appeal, and we now affirm.

Under the Rent Stabilization Code (RSC), a landlord may recover possession of a rent stabilized apartment from a tenant whose lease has expired if the apartment “is not occupied by the tenant ... as his or her primary residence” (RSC [9 NYCRR] § 2524.4 [c]). The Code does not define “primary residence” except to say that “no single factor shall be solely determinative,” and to list “evidence which may be considered” in making the determination (RSC § 2520.6 [u]). An appellate court has defined the term as “an ongoing, substantial, physical nexus with the . . . premises for actual living purposes” (Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]).

But while the rent regulations require a “primary residence” in New York, the holder of a B-2 visa is required to have a “principal, actual dwelling place” outside the United States. Federal regulations make B-2 visas available to aliens who are “visitors for pleasure” of the kind described in section 101 (a) (15) (B) of the Immigration and Nationality Act (8 USC § 1101 [a] [15] [B]; see 8 CFR 214.1 [a] [1] [i]; [2]). That subsection of the statute applies only to “an alien . . . having a residence in a foreign country which he has no intention of abandoning” (8 USC § 1101 [a] [15] [B]), and “residence” is defined as “principal, actual dwelling place in fact, without regard to intent” (8 USC § 1101 [a] [33]).

Thus, if her B-2 visa is valid, defendant has a “principal, actual dwelling place in fact” outside the United States. How she could at the same time have a “primary residence” in New York City is something she has not explained. The distinction between “primary residence” and “domicile” (see Emay Props., 136 Misc 2d at 128), relied on by Supreme Court and the dissenting Justices in the Appellate Division, is not relevant, because neither defendant’s status under the rent regulations nor her immigration status depends on domicile.

We conclude that, at least absent some unusual circumstance, a primary residence in New York and a B-2 visa are logically incompatible. No such unusual circumstance exists here. Perhaps there are rare cases in which a tenant could show that her principal dwelling place for immigration purposes is in one place, and her primary residence for rent regulation purposes in another, but defendant has not even tried to make such a showing. Nor has she suggested that her B-2 visa was issued in error, or has become invalid. Thus, we need not consider whether someone who is in the United States illegally may have a primary residence in New York for rent regulation purposes.

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

Ciparick, J.

(concurring). Because I cannot agree that, as a matter of law, a foreign citizen with a B-l (business) or a B-2 (tourist) visa is automatically precluded from maintaining a primary residence under New York’s rent stabilization laws, and because I further disagree with the proposition that “a primary residence in New York and a B-2 visa are logically incompatible” (see majority op at 317), I write separately. I nonetheless concur in the result as I believe summary judgment was properly granted in this ejectment action since there are no triable issues of fact remaining as to the issue of primary residency considering the unrebutted evidence of the tenant’s sporadic and tenuous ties to the occupancy of the apartment, her B-2 “tourist” visa, her admissions that she has not occupied the apartment for over three years (albeit due to a mold condition), reports from building personnel and the lack of New York State tax returns or other proof of residence. Defendant’s attempt to rebut plaintiff’s contentions in an attorney’s affirmation pertaining to solely the issue of an alleged mold condition is insufficient to raise a triable issue of fact.

Rent Stabilization Code (9 NYCRR) § 2524.4 (c) allows a landlord to refuse to renew a stabilized tenant’s lease if the tenant does not occupy the premises as a “primary residence.” The purpose of this law is to alleviate the shortage of housing in New York City by returning underutilized apartments to the marketplace for residents who need them (see Matter of Herzog v Joy, 74 AD2d 372, 374 [1st Dept 1980], affd for reasons stated below 53 NY2d 821 [1981]; see also Governor’s Mem approving L 1971, ch 371, 1971 McKinney’s Session Laws of NY, at 2608). It is axiomatic that residents of New York City who may be in dire need of affordable housing should be able to obtain such housing before occupants who reside elsewhere and misuse rent-stabilized properties as, for example, warehouses, pieds-a-terre for occasional visits or for other more nefarious purposes.

The landlord bears the initial burden of showing that the tenant did not utilize the apartment as a primary residence (see Glenbriar Co. v Lipsman, 5 NY3d 388, 392 [2005]). Although the terminology “primary residence” is, as the majority notes, left undefined by the Code, appellate courts have described it as “an ongoing, substantial, physical nexus with the controlled premises for actual living purposes—which can be demonstrated by objective, empirical evidence” (Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]).

The Code does, however, outline the evidentiary factors to be considered in determining primary residency. In doing so, it provides in unequivocal terms that “no single factor shall be solely determinative” (9 NYCRR 2520.6 [u]), because a court should consider all of the relevant evidence, if applicable, including: (1) the address listed by the tenant on any tax return, driver’s license, motor vehicle registration or other document filed with a public agency; (2) the tenant’s address for voter registration; (3) the amount of time the tenant occupies the rent-regulated apartment, specifically if the tenant occupies the apartment for less than an aggregate total of 183 days in the most recent calendar year; and (4) any subletting of the apartment (see 9 NYCRR 2520.6 [u] [l]-[4]).

Although this record is replete with indicia of tenant’s non-primary residency, the majority relies on just a single factor— her B-2 visa status (cf. Glenbriar, 5 NY3d at 391, 393 [parties put forward evidence of several factors in arguing primary residence] ; Draper v Georgia Props., 94 NY2d 809, 811 [1999] [same])—giving undue weight to federal immigration laws in addressing this case which is governed by the Rent Stabilization Code.

United States Constitution, article I, § 8 (4) provides that the federal government has sole authority over immigration matters. The federal government passes immigration laws with a totally different purpose and intent than the Rent Stabilization Code. Consequently, the use of similar terminology in an immigration law should not define the important rights and protections for tenants under our rent stabilization laws. Thus, an analysis of a tenant’s immigration status should not be dispositive or, in certain cases, even relevant to a resident’s ability to maintain rent-stabilized housing (see Balbuena v IDR Realty LLC, 6 NY3d 338, 362-363 [2006] [violation of immigration laws alone cannot prevent recovery of damages for work-related injuries]).

Furthermore, as stated in the dissenting opinion below, it is unclear under our current immigration laws whether a B-l or B-2 visa holder may be able to stay in the United States for more than one year. B-l and B-2 visa holders may obtain six-month extensions (see 8 CFR 214.2 [b] [1]), or they may be able to adjust their status by being granted (1) political asylum (see e.g. Pavlova v Immigration & Naturalization Serv., 441 F3d 82 [2d Cir 2006]); (2) student visas (F-1 visas) (see e.g. Ayoub v Immigration & Naturalization Serv., 708 F2d 721 [6th Cir 1982] [table; text at 1982 US App LEXIS 11305]); or (3) temporary-worker privileges (see e.g. Urban v Immigration & Naturalization Serv., 123 F3d 644, 646 [7th Cir 1997]). Thus, the fact that a resident has a B-1 or B-2 visa may not adequately define the duration of residency as adjustments in immigration status can often result in a protracted stay and in some cases be coterminous with the duration of a rent-stabilized lease.

I thus conclude that the evidence submitted by plaintiff, including defendant’s immigration status, her extremely limited use of the apartment and the lack of documentary evidence linking her to the residence establishes a prima facie case of nonprimary residence. Because defendant has failed to submit evidence to rebut plaintiffs contentions and likewise to demonstrate that she maintains a substantial physical nexus to the apartment, summary judgment for plaintiff is warranted.

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

Order affirmed, etc.


author: Ciparick, J.

text:
    [897 NE2d 1056, 868 NYS2d 575]
    Jean Boudreaux et al., Appellants, v State of Louisiana, Department of Transportation et al., Respondents.
    Argued September 9, 2008;
    decided October 28, 2008

      POINTS OF COUNSEL

      Folkenflik & McGerity, New York City (Max Folkenflik of counsel), for appellants.
    I. Under the Full Faith and Credit Clause of the US Constitution, the Louisiana judgment is required to be filed and enforced in accordance with New York enforcement law. (1544-48 Props. v Maitre, 184 Misc 2d 984; Nevada v Hall, 440 US 410; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; Clark v Williard, 294 US 211; Chicago, R. I. & P. R. Co. v Sturm, 174 US 710; Baker v General Motors Corp., 522 US 222; Morris Plan Indus. Bank of N.Y. v Gunning, 295 NY 324; People’s Natl. Bank v Hitchcock, 104 Misc 2d 647; Matter of Horton, 91 Misc 2d 885.) II. The statutory scheme of CPLR article 54 requires filing and docketing. (Fauntleroy v Lum, 210 US 230; Stanford v Utley, 341 F2d 265; Home Port Rentals, Inc. v International Yachting Group, Inc., 252 F3d 399.) III. The technical corrections requested in the order to show cause should be granted. (Kiker v Nassau County, 85 NY2d 879.)

      Orrick, Herrington & Sutcliffe LLP, New York City (Michael Stolper and Sarah Walcavich of counsel), for respondents.
    I. The Full Faith and Credit Clause of the United States Constitution requires New York to recognize Louisiana’s limited waiver of sovereign immunity and reject docketing of this Louisiana state court judgment against Louisiana. (Matter of Farmland Dairies v Barber, 65 NY2d 51; Underwriters Nat. Assurance Co.

      v North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 US 691; New York ex rel. Halvey v Halvey, 330 US 610; Kovacs v Brewer, 356 US 604; Nevada v Hall, 440 US 410.) II. Appellants’ foreign judgment cannot be docketed in New York because it is stayed as a matter of law in the rendering state.
   OPINION OF THE COURT

Ciparick, J.

This appeal calls upon us to determine whether the Full Faith and Credit Clause of the United States Constitution and the doctrine of comity require New York courts to enforce a money judgment against the State of Louisiana, Department of Transportation (DOT) when such judgment is unenforceable in Louisiana due to constitutional and statutory limitations. We conclude that New York courts are not required to enforce such a money judgment.

In April 1983, flood waters damaged a large number of homes and businesses in Tangipahoa Parish, Louisiana. Plaintiffs Jean Boudreaux and other victims of the flood commenced a class action against the State of Louisiana and various other defendants alleging that the Louisiana DOT disrupted the Tangipahoa River’s natural flood plain by negligently constructing the Interstate 12 bridge, thereby causing backwater to submerge plaintiffs’ surrounding homes and properties. After prevailing on the issue of liability and exhausting several appeals, plaintiffs were awarded $91,846,957.04 in damages, plus interest from April 10, 1984. Although plaintiffs have docketed the judgment in 18 Louisiana parishes, they have not been able to recover any portion of the judgment.

In August 2006, plaintiffs attempted to docket the judgment in New York County pursuant to CPLR article 54 so they might reach any assets owned by the State of Louisiana located within the State of New York. A clerk of Supreme Court declined to accept the filing of the judgment, citing two technical defects. Plaintiffs then moved for leave to correct the deficiencies, which Supreme Court orally denied. The Appellate Division, with one Justice dissenting, affirmed, holding that since plaintiffs’ judgment does not become “ ‘payable’ ” against the State of Louisiana until its legislature appropriates the necessary monies to pay the judgment it cannot be enforced in the State of New York, and that as a matter of comity, New York State courts should defer to the laws of Louisiana (49 AD3d 238, 241 [2008]). The dissent concluded that public policy requires enforcement of the judgment. Plaintiffs appealed as of right on constitutional grounds and we now affirm.

Plaintiffs argue that Louisiana waived sovereign immunity in article XII, § 10 (A) of its Constitution. Plaintiffs acknowledge, however, that there are constitutional and statutory limitations on a judgment creditor’s ability to seize property of the State of Louisiana to satisfy a judgment. Indeed, article XII, § 10 (C) of the Louisiana Constitution provides that: “[n]o judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.” Further, Louisiana Revised Statutes Annotated § 13:5109 (B) (2) requires that:

“[a]ny judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision.”

In seeking to enforce the Louisiana judgment in New York, plaintiffs attempt to circumvent Louisiana’s clear mandate that no judgment rendered against it shall be paid unless its legislature appropriates funds. Plaintiffs argue that the Full Faith and Credit Clause requires that the Louisiana judgment be enforced in accordance with New York law. As we noted in O’Connell v Corcoran (1 NY3d 179, 185 [2003]), however, what the Full Faith and Credit Clause requires is that a court provide a foreign judgment with the same credit, validity, and effect that it would have in the state that pronounced it. Certainly, Louisiana courts are aware that a judgment creditor can be left without a remedy when its legislature refuses to appropriate the funds necessary to satisfy a judgment, as is the case here. In Newman Marchive Partnership, Inc. v City of Shreveport (979 So 2d 1262 [La 2008]) the Louisiana Supreme Court stated that:

“We recognize, as have courts before us, that our holding today effectively provides [a plaintiff] a right without a remedy . . . However, as the judicial branch, like all branches, derives its power from the constitution, we are bound to accept the limitations placed upon us by that document. Although article V section 1 grants our branch the judicial power—a power which would seemingly carry with it the inherent ability to enforce judgments—the constitution otherwise limits that power when judgments are rendered against the state and its political subdivisions, and places enforcement of such judgments in the legislature” {id. at 1270 [internal quotation marks and citations omitted]).

Thus, what plaintiffs seek is for the courts of New York to enforce a judgment that cannot be enforced in Louisiana. As we stated in Matter of Farmland Dairies v Barber (65 NY2d 51 [1985]) the Full Faith and Credit Clause requires

“that the public acts, records and judicial proceedings of each State shall be given full faith and credit in every other State. The doctrine does not make a foreign State judgment a judgment in the forum State. Before that occurs and a locus remedy may be obtained, an action must be brought and a judgment entered on the foreign judgment in the forum State . . . [I]f the foreign court had jurisdiction . . . the courts of every other State must give it the same credit, validity and effect as it has in the State which rendered it” {id. at 55 [citations omitted]).

Contrary to plaintiffs’ assertion, we conclude that neither the Full Faith and Credit Clause nor CPLR article 54 requires the enforcement of the Louisiana judgment in New York State.

Nor is it required as a matter of comity. In applying the doctrine of comity, we defer to the Constitution of Louisiana and the public policy embodied within the statute enacted by its legislature. As we stated in Ehrlich-Bober & Co. v University of Houston (49 NY2d 574 [1980]) comity is not a rule of law, but a voluntary decision by one state to defer to the policy of another, especially “in the face of a strong assertion of interest by the other jurisdiction” (id. at 580).

Louisiana has expressed its public policy and its own courts have recognized its validity. We agree with the Appellate Division that there is no compelling interest in providing New York as a forum for redress in this case. Indeed, the flood that caused the damage suffered by plaintiffs occurred in Louisiana and all litigation that arose from the flood was brought in Louisiana. The rights of New Yorkers are not involved in this matter at all. Based upon the facts of this case, it is clear that the “wise policy [is] ... to respect [Louisiana’s] established limits on liability” (Nevada v Hall, 440 US 410, 426 [1979]).

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

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

Order affirmed, with costs.

      . There are 1,286 plaintiffs within the class.

      . The clerk informed plaintiffs’ counsel that: (1) the portions of the judgment which were in favor of the class required a named judgment creditor or the name and office address of the attorney for the judgment creditor (see CPLR 5018 [c] [1] [ii], [vii]) and (2) the clerk could not compute and enter prejudgment interest on a non-New York judgment.

      . The section provides: “No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

      . Article IY § 1 of the United States Constitution requires that: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”


text:
    [898 NE2d 921, 869 NYS2d 878]
    In the Matter of Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc., Appellant, v Department of Environmental Protection of the City of New York et al., Respondents.
    Argued September 9, 2008;
    decided October 28, 2008

      POINTS OF COUNSEL

      Philip Brumley, General Counsel, Watchtower Bible and Tract Society of New York, Inc., Patterson (John O. Miller, III, of counsel), for appellant.
    The requirement that exempt property be “actually dedicated and used . . . exclusively as a place of public worship” does not preclude the presence of more than one necessary and reasonably incidental dwelling on the property. (Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225; Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948; Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Matter of Bethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 8 Misc 3d 274, 27 AD3d 256, 8 NY3d 1001; Matter of Associated YM-YWHA’S of Greater N.Y. v D’Angelo, 38 Misc 2d 1082; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244.)

      Michael A. Cardozo, Corporation Counsel, New York City (Ronald E. Sternberg and Leonard Koerner of counsel), for respondents.
    Because the administrative interpretation of the statute in question is reasonable and not arbitrary, capricious or an abuse of discretion, the Appellate Division appropriately “f[ound] no basis to disturb” it. (Matter of Howard v Wyman, 28 NY2d 434; Samiento v World Yacht Inc., 10 NY3d 70; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of Bethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 27 AD3d 256, 8 NY3d 1001; Matter of Legion of Christ v Town of Mount Pleasant, 1 NY3d 406; Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Robertson v Zimmermann, 268 NY 52; Brass v Rathbone, 153 NY 435; Town Bd. of Town of Poughkeepsie v City of Poughkeepsie, 22 AD2d 270; Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143.)
   OPINION OF THE COURT

Read, J.

Petitioner Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc. (the Church) owns and operates a 100,000-square-foot building at the corner of Flatbush Avenue and Albemarle Road in Brooklyn. The building is four stories high, with an attached three-story structure, and contains multiple meeting and assembly halls used for religious instruction and worship.

Respondent New York City Water Board is an autonomous public benefit corporation empowered to set water and sewer rates sufficient to support New York City’s water and sewer systems (Public Authorities Law §§ 1045-f, 1045-j). Pursuant to an agreement between the City and the Board, respondent Department of Environmental Protection (DEP) acts as the Board’s agent, responsible for billing and collecting water and sewer charges, maintaining accounts, and issuing determinations upon applications for water and sewer exemptions.

The Church first applied for an exemption from water and sewer charges for the Flatbush building in January 1991. Exemptions from city water charges are governed by chapter 696 of the Laws of 1887, as subsequently amended (the water exemption statute), which provides that

“the real estate owned by any religious corporation located in the city of New York as now constituted, actually dedicated and used by such corporation exclusively as a place of public worship, [is] hereby exempted from the payment of any sum of money whatever to said city, for the use of water taken by same from said city” (L 1887, ch 696, § 1, as amended by L 1907, ch 135, § 1 [emphasis added]).

Concomitantly, New York City Administrative Code § 24-514 (e) exempts “[a]ny real property . . . entitled to an exemption from the payment of water rents or charges . . . from payment of the sewer rents or charges imposed hereunder.”

In its 1991 exemption application, the Church indicated that the Flatbush building included “2 apartments for 2 caretakers.” When asked whether any portion of the building was used for dwelling purposes and, if so, to describe the occupant’s affiliation with the organization, the Church answered that there were “[t]wo apartments on premises—One is for the manager and his wife. The second apartment is for the technical maintenance caretaker and his wife. All are ministers.”

On April 19, 1991, DEP denied the Church’s application, concluding that the Flatbush building “d[id] not qualify at th[at] time” for the requested exemption. The DEP advised the Church, however, that it

“may qualify for a partial exemption. The only portion qualified would be the basement, first and second floor area. Only one dwelling is allowed for a caretaker.
“Since the entire premises is metered by a single meter [sic] in order to have a partial exemption a branch meter must be installed for the non exempt [sic] portion.”

The Church did not again apply for an exemption until June 4, 2002. In the application’s cover letter, the Flatbush facility’s manager stated that there were “regularly scheduled events 30 weekends per year with approximately 1500-2000 in attendance per day at each event.” Explaining the two caretaker apartments, he added that “[d]ue to the size of our facility, maintenance and security needs, and insurance requirements, a caretaker must be on the premises 24 hours a day, seven days a week. Therefore, two caretakers are needed to live on the premises.”

On June 14, 2002, DEP returned the Church’s application on the ground that “the use of the building ha[d] not changed [and] therefore the property . . . [was] still not eligible for exemption.” On May 31, 2004 (just shy of a two-year administrative deadline), the Church filed a complaint to contest DEP’s action. Having received no written response, the Church renewed its complaint on January 3, 2005.

On January 27, 2005, DEP’s Exemption Manager endorsed his agency’s 2002 decision to return the Church’s exemption application. He summarized what had happened in 1991, and pointed out that a recent inspection had revealed guest rooms on the building’s fourth floor, or balcony level, which were not disclosed in the Church’s 2002 application. The Exemption Manager then concluded that

“[t]he law states ‘property used exclusively as a place of public worship is eligible for exemption’. One dwelling only is allowed for the caretaker. Many of our not-for-profit religious organizations are of considerable size, and have one caretaker or install a separate meter. We cannot make an exception based on the size of the building.”

On February 18, 2005, the Church appealed this decision to the Water Board’s Executive Director.

On June 15, 2005, the Executive Director denied the Church’s appeal and confirmed DEP’s determination. He opined that in order for an organization to qualify for an exemption,

“the premises must be used exclusively for a qualifying purpose, or if the premises is not used exclusively for a qualifying purpose, the non-qualifying portion must be separately metered. For this premises, neither condition is met as the meter records consumption on both the part that may qualify (the assembly hall) and the non-qualifying portion (the additional caretaker apartment and two guest rooms). A single room or a small apartment for a caretaker is considered incidental; accommodations for an additional caretaker and two additional guests are not a qualifying exempt use.”

He further advised the Church that it could pursue “the option of separately metering the water service to the non-exempt portion,” in which event “an exemption [might] then be applied for on the qualifying portion of the premises, and if granted, [would] be applied on a prospective basis only.”

On May 24, 2005, prior to issuance of this unfavorable decision (which was apparently overdue at the time), the Church commenced a CPLR article 78 proceeding in Supreme Court against DEP, the Executive Director, the City and Mayor Bloomberg. In its amended petition sworn to June 29, 2005, the Church sought a judgment annulling and vacating DEP’s and the Executive Director’s determinations; and directing and compelling respondents to grant the Church’s application for an exemption, and to reimburse the Church for charges paid under protest. The Church argued that the determinations denying its request for exemption were arbitrary and capricious and contrary to law.

In a judgment dated December 15, 2005, Supreme Court granted the Church the relief that it had requested. In an accompanying memorandum dated October 25, 2005, Supreme Court opined that previous trial court decisions allowing an exemption from the payment of water charges under similar circumstances were binding on the Board (2005 NY Slip Op 30298[U]). Further, the Court analogized water exemptions with real property tax exemptions for buildings used exclusively for religious purposes.

After respondents appealed, the Appellate Division reversed on the law, denied the petition and dismissed the proceeding on the merits. The Court considered the Board’s 2005 determination to be consistent with DEP’s 1991 decision that the Church was, upon a proper application and the same operative facts, entitled only to a partial exemption. The Appellate Division further observed that “while reasonable minds [might] differ as to the precise scope of the statutory exemption,” DEP’s and the Board’s “strict interpretation . . . under the facts presented” was not “so literal and narrow that it defeated] the exemption’s settled purpose” (Matter of Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc. v Department of Envtl. Protection of City of N.Y., 39 AD3d 541, 543 [2d Dept 2007] [internal quotation marks and citations omitted]). We granted the Church’s motion for leave to appeal (9 NY3d 817 [2008]), and now affirm.

Chapter 696 of the Laws of 1887, entitled “AN ACT to provide hospitals, orphan asylums and other charitable institutions in the city of New York with water, and remitting assessments therefor,” originally exempted only the City’s “several hospitals, orphan asylums and homes for the aged” from paying “any sum of money whatever to said city, for the use of water taken by the same from said city” (L 1887, ch 696, § 1). Chapter 135 of the Laws of 1907 first added the language “or the real estate owned by any religious corporation located in the city of New York as now constituted, actually dedicated and used by such corporation exclusively as a place of public worship” (L 1907, ch 135, § 1). The City is the only political entity in the State required to provide free water to certain institutions located within its borders.

And over time, the categories of institutions enjoying the exemption expanded considerably. In addition, section 93d-9.0 of the Administrative Code allowed the former Board of Estimate, by unanimous vote and with the City Comptroller’s written approval, to cancel liens for water charges for institutions qualified for real property tax exemption under what is now section 420-a (1) of the Real Property Tax Law, thereby excusing additional organizations from paying the City for the water they consumed. For example, educational institutions, which did not qualify for an exemption under the water exemption statute, routinely obtained cancellation of liens for water charges in this way.

The resulting loss of revenue spurred the City to urge the Legislature repeatedly to cut back the statutory scheme, and in 1980, the Legislature responded by enacting a compromise: the exemption was extended to real estate owned by nonprofit corporations or associations used exclusively for K-12 education and entitled to a real property tax exemption, but was structured so as to calibrate the exemption to an organization’s level of water usage, or eligibility for government reimbursement (e.g., through Medicaid) for water charges (L 1980, chs 893, 894).

Against this backdrop, the city agencies responsible for implementing the water exemption statute (the Board and DEP) have consistently interpreted it sparingly, consistent with its plain meaning. That is, they have read the phrase “actually dedicated and used . . . exclusively as a place of public worship” (emphasis added) to exempt from water charges only that portion of a religious corporation’s property in fact used for public worship, plus a single caretaker residence. Such incidental uses as additional caretaker residences are not exempt; guest rooms for visiting clergy are not exempt; and clergy residences are not exempt unless the clergy doubles as the caretaker. Where nonexempt and exempt uses coexist on the same property, the agencies afford a partial exemption to the religious corporation, subject to some mechanism, such as submetering, for separately identifying the exempt and nonexempt volumes of water consumed.

As a general rule, “the construction given statutes ... by the agency responsible for their administration, if not irrational or unreasonable, should be upheld” (Matter of Howard v Wyman, 28 NY2d 434, 438 [1971]; see also Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]). Here, the Church argues that the agencies’ interpretation of the water exemption statute is, in fact, arbitrary, capricious and without rational basis for two reasons.

First, the Church objects that the agencies ignore a religious organization’s actual need and actual water consumption. In short, “the City’s response to all applications for exemption is based on a rigid, one-size-fits-all standard regardless of individual circumstances or mitigating factors.” In effect, the Church advances the proposition that, having read the statute broadly enough to extend the exemption to a single caretaker residence, the agencies must assess how many caretakers a religious corporation actually needs when multiple caretaker residences are claimed in an exemption application.

But having opened the door a crack for a single caretaker residence—an interpretation neither mandated nor prohibited by the statute—the agencies are not compelled to fling it wide open to welcome additional incidental uses. Nothing in the water exemption statute’s legislative history or evolution over time suggests that the Legislature intended a broad interpretation. The Legislature itself has, after all, cabined the exemption, recognizing that the City incurs costs to supply water to its citizens, which are normally recouped through charges linked to usage. To the extent that certain users are excused from paying their share of these costs, an additional burden falls upon other consumers.

While the agencies might legitimately have chosen to read the statute more generously, we cannot say that they acted irrationally by limiting the exemption to premises devoted exclusively to public worship plus the residence of a caretaker for these premises, if there is one. This interpretation, uniformly applicable to religious corporations throughout the City, is easily understood and administered, and is reasonable in light of the water exemption statute’s language and legislative history.

Next, the Church points to Real Property Tax Law § 420-a (1), which exempts from taxation any real property owned by a corporation or association organized or conducted exclusively for religious purposes, if used exclusively for such purposes. In Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg (79 NY2d 244 [1992]), we explained that “[t]he term ‘exclusively’, in this context, has been broadly defined to connote ‘principal’ or ‘primary’ such that purposes and uses merely ‘auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption’ ” (id. at 249, quoting Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143, 153 [1974] [emphasis added]).

The agencies were not, however, called upon to interpret the statutory exemption from water charges afforded religious corporations “in th[e] context” of Real Property Tax Law § 420-a (1). The water exemption statute does not identify eligible religious organizations by referring to Real Property Tax Law § 420-a (1) (or its predecessor statute in effect in 1907, section 4 [7] of the 1896 Tax Law [L 1896, ch 908]). Further, section 420-a (1) (which originated in the Tax Law) and the water exemption statute (which has always been freestanding) do not share a common legislative source; the enactors of the water exemption statute obviously could not have known how the courts would explain the word “exclusively” in the Real Property Tax Law many decades later. There is no basis, therefore, as a matter of legislative intent, to conclude that “exclusively” was to mean the same thing in the two statutes.

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

Pigott, J.

(dissenting). Because I believe the Department of Environmental Protection’s (DEP) unwritten rule—that in order for the religious property to qualify for exemption pursuant to the water exemption statute or the sewer ordinance it may not contain more than one caretaker residence on the property—is arbitrary, capricious and unreasonable, I respectfully dissent.

The water exemption statute here at issue provides, in relevant part, that

“the real estate owned by any religious corporation located in the city of New York as now constituted, actually dedicated and used by such corporation exclusively as a place of public worship . . . [is] hereby exempted from the payment of any sum of money whatever to said city, for the use of water taken by same from said city” (L 1887, ch 696, § 1, as amended by, inter alia, L 1907, ch 135, § 1, and L 1980, ch 893, § 1 [emphasis added]).

The City’s sewer ordinance provides that any property entitled to an exemption from the payment of water rents or charges shall also be exempt from payment of the sewer rents or charges (Administrative Code of City of NY § 24-514 [b] [5]; [e]). The pertinent issue in this case is whether the property is used “exclusively as a place of public worship” to qualify for the exemption.

The Church argues without contradiction that exclusive use also includes uses of that property that are incidental to the property’s eleemosynary use. By allowing one caretaker residence, the DEP concedes that “exclusive use” cannot be interpreted literally and another use may exist on the property. Why is it then, the Church asks, that one caretaker for a small religious property is permitted under the exemption, but two caretakers, essential for a much larger institution, are not? A good question that, in my view, has no answer and requires reversal in this case.

The Church points us to two prior decisions of New York courts that have rejected the City’s one caretaker rule. In Matter of Bethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y. (27 AD3d 256 [1st Dept 2006], revd on other grounds 8 NY3d 1001 [2007]), the First Department held that a corporation that operated a church and school in a building in Manhattan was entitled to an exemption from the payment of water and sewer charges pursuant to the statute, despite the fact that the pastor, a church administrator/religious counselor and a full-time teacher for the school resided in three apartments within the building. And in Matter of Chung Te Buddhist Assn. of N.Y., Inc. v Kusterbeck (2003 NY Slip Op 51432[U] [Sup Ct, NY County 2003]), Supreme Court granted a water exemption to an applicant that had 14 rooms for overnight guests and priests.

Those two courts found persuasive our cases interpreting the exemption for religious organizations from real property taxes, noting that these exemption statutes “have [the] same underlying purpose” (Chung, 2003 NY Slip Op 51432[U] at 5). In interpreting the exemption for religious organizations under the Real Property Tax Law, we have construed the Legislature’s requirement that the religious property be used “exclusively” for its religious purposes to mean “principally” or “primarily” (see Matter of Symphony Space v Tishelman, 60 NY2d 33, 38 [1983]; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476, 483 [1979]), and held that “uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption” (Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244, 249 [1992] [internal quotation marks omitted]).

In Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg (79 NY2d 244 [1992]), we considered whether a not-for-profit religious corporation whose primary purpose is the teaching of principles and doctrines of the Jewish faith was entitled to reed property tax exemption for a 31-acre parcel of land it owned. The property was used primarily during the summer months when students were provided rigorous religious and educational instruction. The property contained a main building with a kitchen and communal dining room, a ritual bath, recreational facilities, classrooms, synagogues and a variety of housing facilities including 64 bungalows and six trailers {id. at 247). Petitioner sought exemption pursuant to section 420-a of the Real Property Tax Law, but was granted the application only in part. The assessor determined that the housing units and wooded land were taxable because they were not used exclusively for religious purposes (id. at 248). We stated the test for “exclusive use” under the Real Property Tax Law as follows:

“The test of entitlement to tax exemption under the ‘used exclusively’ clause of the statute is whether the particular use is ‘reasonably incident[al] to the [primary or] major purpose of the [facility]’. Put differently, the determination of ‘whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes’ ” (id. at 250 [citation and some internal quotation marks omitted]).

Applying this test, we held that the entire property, including the housing units and the trailer occupied by the caretaker, was entitled to a real property tax exemption because the challenged uses were incidental to the religious purposes of the organization.

Here, the DEP offers no explanation how a single caretaker residence better achieves the objective of the water or sewer exemption, while two, or perhaps one and a visiting pastor’s residence, do not. Nor does the statute’s language or the legislative history support the DEP’s rule. The purpose of the water exemption statute, like that of the Real Property Tax Law exemption, is to benefit not-for-profit charitable, educational and religious organizations. The City’s strict one caretaker rule ignores an exempt organization’s actual need, by denying the statutory exemption to those organizations whose exempt use requires more on-site personnel or incidental facilities than a similar smaller institution. The small and large, by being treated the same, are being treated unequally.

The test for entitlement to an exemption under the water statute or sewer ordinance should be clear—whether the particular use is reasonably incidental to the primary purpose of the exempt organization. Applying such a test here, not even the DEP disputes that the Church is a religious corporation whose real property is dedicated and used exclusively as a place of public worship. Nor does the DEP dispute the Church’s stated need for round the clock caretakers and that the residences for those caretakers are “incidental and necessary” to the operation of the Church. It has simply decided that “one is enough” and that position, in my view, is arbitrary.

Consequently, the DEP’s decision to deny the requested exemption was arbitrary and capricious and should be reversed.

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

Order affirmed, with costs.

      . This statute has not been classified by the Legislature to the Consolidated Laws of the State of New York, nor is it included in McKinney’s Unconsolidated Laws.

      . By 1980, for example, in addition to hospitals, orphan asylums, homes for the aged and religious corporations, the statute also exempted dispensaries, women’s shelters, day care centers, emergency relief centers, medical research centers, public baths, free school societies, free circulating libraries, veteran firemen’s associations, social settlements and military veterans’ associations.

      . Specifically, the 1980 amendment limited free water to those institutions where $5,000 worth of water a year or less was used, and allowed the City to charge half price for usage of more than $5,000 but not more than $10,000 a year, and full price where the value of the water supplied exceeded $10,000 a year (L 1980, ch 893, § 2). In 1982, the Legislature again amended the statute to provide that “[i]n the event the rate charged for water rents or charges is increased, the base values of [$5,000] and [$10,000] . . . shall be increased by an amount equal to the percentage increase in such rate” (L 1982, ch 890, § 1). The Legislature also added a two-year sunset provision (id. § 2), although the law has been extended every two years since, most recently until September 1, 2010 (see L 2008, ch 518).

       Real Property Tax Law § 420-a provides for mandatory real property tax exemption for religious organizations. This section states in pertinent part that:
      “Real property owned by a corporation or association organized or conducted exclusively for . . . religious . . . purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section” (RPTL 420-a [1] [a] [emphasis added]).