author: Read, J. Chief Judge Lippman (dissenting).

text:
    [930 NE2d 271, 904 NYS2d 350]
    Alan Morton et al., Appellants, v State of New York, Respondent.
    (Claim No. 96522.)
    Argued May 4, 2010;
    decided June 8, 2010

      POINTS OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), and Salenger Sack Schwartz & Kimmel (Marvin Salenger and Michael Schwartz of counsel) for appellants.
    Since New York Water Service Corporation (NYW) had a legal duty to maintain the water mains which NYW owned, located under the State of New York’s roadways and land, and since the work was being performed in response to an emergency break which was destroying the roadway, claimant is entitled to Labor Law § 241 protection, even if NYW failed to secure a permit required under Highway Law § 52; plaintiff cannot be considered a trespasser; the State’s lack of knowledge or benefit would make no difference as liability is established based on the fact of ownership. (Rocovich v Consolidated Edison Co., 78 NY2d 509;
      Zimmer v Chemung County Performing Arts, 65 NY2d 513; Koenig v Patrick Constr. Corp., 298 NY 313; Lopes v Rostad, 45 NY2d 617; Weiss v Fote, 7 NY2d 579; Annino v City of Utica, 276 NY 192; Brusso v City of Buffalo, 90 NY 679; Storrs v City of Utica, 17 NY 104; Rochester & Lake Ontario Water Co. v City of Rochester, 176 NY 36; Village of Pelham Manor v New Rochelle Water Co., 143 NY 532.)

      Andrew M. Cuomo, Attorney General, Albany (Victor Paladino, Barbara D. Underwood, Andrew D. Bing and Peter H. Schiff of counsel), for respondent.
    The State of New York is not liable under Labor Law § 241 (6) because there was no nexus between the State and claimant, who was trespassing on the State’s property. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Morris v Pavarini Constr., 9 NY3d 47; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573; Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970; Abbatiello v Lancaster Studio Assoc., 3 NY3d 46; Scaparo v Village of Ilion, 64 AD3d 1209, 13 NY3d 864; Ogden v City of Hudson Indus. Dev. Agency, 277 AD2d 794; Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333; Augeri v Roman Catholic Diocese of Brooklyn, 225 AD2d 1105; Brothers v New York State Elec. & Gas Corp., 11 NY3d 251.)
   OPINION OF THE COURT

Read, J.

Claimant Alan Morton was injured on the morning of April 3, 1997 while working for his employer, New York Water Service Corporation (the water company), a private company that furnishes water to portions of Nassau County. On that date, he was a member of a four-person work crew, including a foreman, dispatched with a backhoe to fix a break reported in a company-owned water main installed in 1928 beneath Carman Mill Road, Massapequa, New York, a part of the State of New York’s highway system (see Highway Law § 341 [29] [1]).

Upon arrival at the job site, the work crew notified affected customers and shut off water service, excavated test holes to pinpoint the leak’s origin, and placed traffic cones to alert motorists to the presence of the backhoe, which occupied a portion of the northbound travel lane. Using the backhoe and shovels, the crew dug up blacktop in the roadbed and created a hole or trench, exposing the 12-inch water main buried several feet underground. When claimant climbed down into this trench to clean around the main and apply a repair clamp, a side wall caved in, burying his right leg and foot.

In June 1997, claimant, with his wife suing derivatively, brought this action against the State. He asserted common-law negligence and violations of Labor Law §§ 200, 240 and 241 (6), and sought $5.5 million in damages. In 2002, claimant moved for partial summary judgment as to liability on his Labor Law § 241 (6) and negligence claims. He premised liability in the former on violation of Industrial Code (12 NYCRR) subpart 23-4, which requires banked or sloped sides (12 NYCRR 23-4.2 [a]) or “sheeting, shoring and bracing” (12 NYCRR 23-4.4 [a]) of excavations that are five feet or more deep. The State opposed the motion and cross-moved for summary judgment dismissing the complaint.

The State argued that it was not liable under Labor Law § 241 (6) because the water company failed to obtain a work permit from the New York State Department of Transportation (DOT), as mandated by Highway Law § 52, prior to repairing the water main, which was situated within the state highway right-of-way. Section 52 provides that

“[e]xcept in connection with the construction, reconstruction, maintenance or improvement of a state highway, no person, firm, corporation, municipality, or state department or agency shall . . . lay or maintain [within the state highway right-of-way] underground wires or conduits or drainage, sewer or water pipes, except in accordance with the terms and conditions of a work permit issued by the commissioner of transportation” (see also Vehicle and Traffic Law § 1220-c [“(e)xcept in connection with the construction, reconstruction, maintenance, or improvement of a state highway, no person shall work on a state highway without a work permit issued by the state commissioner of transportation”]; 17 NYCRR 126.2 [a], [b] [a work permit must be secured “to temporarily obstruct or to install, construct, maintain or operate any facilities within the bounds of a State highway right-of-way,” including “excavating ... or work of a like nature under, or over or along the highway”]).

By decision and order dated October 21, 2002, the Court of Claims dismissed claimant’s negligence claims because the State lacked actual or constructive notice of any dangerous condition and did not exercise supervision or control over the work site. The court also denied claimant’s motion and the State’s cross motion for summary judgment on the Labor Law § 241 (6) claim. The judge concluded that Highway Law § 52 did not insulate the State from liability under Labor Law § 241 (6) because this provision “imposed a nondelegable duty upon ‘owners’ to provide reasonable and adequate protection and safety to persons employed in excavation work regardless of the absence of control, supervision or direction of the work.” He did find, however, that material questions of fact existed as to soil composition and the excavation’s depth, which implicated the applicability of the Industrial Code sections relied upon by claimant.

After the ensuing nonjury trial, the Court of Claims on April 9, 2003 found that the excavation was not protected by sloped or banked sides or by sheeting, shoring or bracing, and that it was more than five feet deep. The judge decided that claimant had therefore proven violations of sections of the Industrial Code specific enough to support Labor Law § 241 (6) liability; and that these violations proximately caused the accident, and thus contravened the State’s nondelegable duty to claimant under Labor Law § 241 (6). The judge also found that the State had not proven claimant’s comparative negligence by a preponderance of the credible evidence. Accordingly, on May 7, 2003, an interlocutory judgment determining the State to be negligent and 100% liable for claimant’s injuries was entered in the Court of Claims. The State appealed from both the order denying its cross motion for summary judgment on the section 241 (6) claim and the interlocutory judgment.

In December 2004, the Appellate Division dismissed the State’s appeal from the interlocutory judgment as academic; reversed, on the law, the portion of the Court of Claims’ order that denied the State’s cross motion for summary judgment dismissing the section 241 (6) claim; granted the State summary judgment on and dismissed that claim; and vacated the interlocutory judgment (13 AD3d 498 [2d Dept 2004]). Citing Abbatiello v Lancaster Studio Assoc. (3 NY3d 46, 51 [2004]), the court reasoned that the

“State is not liable . . . under Labor Law § 241 (6) because the claimant was not within the class of persons afforded protection under the statute. Since [the water company] failed to obtain a highway work permit in violation of state law . . . [the water company] and the claimant trespassed on the State’s property in performing excavation and repairs on the state highway . . . Since the claimant was performing work without the State’s permission or knowledge, he was not a person ‘employed’ at a work site within the meaning of the Labor Law, which defines such an individual as one ‘permitted or suffered to work’ (Labor Law § 2 [7])” (13 AD3d at 500 [citations omitted]).

We granted claimant permission to appeal (13 NY3d 702 [2009]) and now affirm.

Labor Law § 241 (6) provides that

“[a]ll contractors and owners and their agents . . . , when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: . . .
“All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The [New York State Commissioner of Labor] may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith.”

Thus, Labor Law § 241 (6) imposes a nondelegable duty on owners and contractors to comply with the Commissioner of Labor’s regulations (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]). And “to the extent that [a] plaintiff . . . assert[s] a viable claim under Labor Law § 241 (6), he need not show that defendants exercised supervision or control over his worksite in order to establish his right of recovery” (id.).

But we have consistently held that ownership of the premises where the accident occurred—standing alone—is not enough to impose liability under Labor Law § 241 (6) where the property owner did not contract for the work resulting in the plaintiffs injuries; that is, ownership is a necessary condition, but not a sufficient one. Rather, we have insisted on “some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” (Abbatiello, 3 NY3d at 51; see also Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009] [“In cases imposing liability on a property owner who did not contract for the work performed on the property, this Court has required ‘some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest’ ” (quoting Abbatiello, 3 NY3d at 51)]).

We found no nexus in Abbatiello where the plaintiff, a cable television repairman, was injured at a building owned by the defendant while responding to the complaint of a tenant who was a cable television subscriber. The plaintiffs employer had sent the plaintiff to the defendant’s building to respond to the complaint. We emphasized that the “injured plaintiff was on the owner’s premises not by reason of any action of the owner but by reason of provisions of the Public Service Law,” which precludes landlords from interfering with the installation of cable television facilities on their property (Abbatiello, 3 NY3d at 51). Moreover, the owner was “powerless to determine which cable company [was] entitled to operate, repair or maintain the cable facilities on its property, since [pursuant to Public Service Law § 219] such decision lies with the municipality—the franchisor” (id. at 52). As we elaborated,

“but for Public Service Law § 228, plaintiff would be a trespasser upon [the defendant’s] property and [the defendant] would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between [the defendant] and [the plaintiffs employer] or the plaintiff’ (id.).

We contrasted Abbatiello with three earlier cases in which there was a nexus between the owner and the injured worker: Celestine v City of New York (86 AD2d 592, 593 [2d Dept 1982], affd 59 NY2d 938 [1983] [in action under Labor Law § 241 (6), owner granted an easement to entity contracting for work leading to plaintiffs accident]); Gordon v Eastern Ry. Supply (82 NY2d 555, 559 [1993] [in action under Labor Law § 240 (l), owner leased property to contractor who performed work leading to plaintiffs accident]); and Coleman v City of New York (91 NY2d 821, 823 [1997] [in action under Labor Law § 240 (1), owner leased property to injured employee’s employer]).

We next applied the nexus test in Sanatass v Consolidated Inv. Co., Inc. (10 NY3d 333, 341 [2008]), where a mechanic was injured while installing an air conditioning unit for a tenant of a commercial building owned by the defendant landlord. The tenant had agreed by lease not to make any changes to the premises without the owner’s written consent, but nevertheless hired the plaintiff’s employer without notifying the landlord. There, a nexus arose from the owner’s lease of the premises to the tenant who, in turn, hired the plaintiffs firm to install the air conditioning unit. Further, the tenant’s breach of the lease agreement requiring the owner’s written consent for alterations “did not sever the nexus” (id. at 341-342). We distinguished Abbatiello, pointing out that although the owner in that case “was unaware of and did not consent to the plaintiffs presence on the property, these facts alone were not determinative of our affirmance of the dismissal of the complaint”—i.e., “Abbatiello did not announce a new notice requirement for section 240 (1) cases” (id. at 341). Rather, the difference between Abbatiello and Sanatass was the absence of a nexus in the former and its presence in the latter (id.). And we again explained that in “Celestine and its progeny ... a nexus existed between the out-of-possession owner and the plaintiff, be it by lease, easement or some other property interest” (id.). Finally, we observed that “[ujnlike the cable technician in Abbatiello, the plaintiff in [Sanatass] . . . cannot conceivably be viewed as a ‘trespasser’ ” (id. at 342).

Scaparo is our most recent decision discussing the nexus prerequisite. There, the injured plaintiffs, employees of the Village of Frankfort, were connecting a sewer lateral from a newly constructed cemetery chapel owned by a church to the sewer main at a street intersection in the village (see 64 AD3d 1209, 1211 [4th Dept 2009]). The Herkimer County Industrial Development Agency (HCIDA) owned the property where the sewer lateral was installed; that property was within the Village’s utility right-of-way (see id.). Affirming the Appellate Division, we determined that HCIDA was not liable under Labor Law § 241 (6) because there was no nexus between HCIDA and the injured plaintiffs. As we explained,

“although the accident occurred on HCIDA’s property, HCIDA did not contract with the Village of Frankfort to have the sewer lateral installed, it had no choice but to allow the Village to enter its property pursuant to a right-of-way, and it did not grant the Village an easement or other property interest creating the right-of-way” (Scaparo, 13 NY3d at 866).

Here, there was no lease agreement or grant of an easement or other property interest creating a nexus between claimant and the State. Claimant was performing excavation work on the State’s premises “not by reason of any action of the [State] but by reason” of the water company’s obligation to repair a break in its water line (Abbatiello, 3 NY3d at 51). And although claimant protests that the water company’s repairs took care of the damage caused to the State-owned roadway by the leak and removed a traffic hazard in an emergency situation, we long ago concluded that whether a property owner benefits in any sense from the injury-related work is “legally irrelevant” to determining whether the Labor Law imposes a nondelegable duty (see Gordon, 82 NY2d at 560).

Claimant also urges that he “did not simply trespass on another’s property,” and tags the statutory requirement for a highway work permit as “[a] mere formality.” But we have recognized that the “terms and conditions [of these permits] are not meaningless or optional; the permitee agrees to abide by them in order to obtain DOT’s permission to work in the highway right-of-way” (Brothers, 11 NY3d at 260). The permit requirement allows DOT to inspect the work site to insure the safety of motorists, pedestrians and others in the work zone, and to safeguard the roadway’s integrity. And as we indicated in Brothers, DOT may revoke a highway work permit at any time if necessary to protect the public (see id. at 259; see also 17 NYCRR 129.3 [b] [the DOT Commissioner “reserves the right to revoke or annul the (state highway) permit at any time and at his discretion without a hearing or the necessity of showing cause”]; 17 NYCRR 131.21 [c] [DOT “reserves the right to modify and to revoke or annul” a highway work permit issued for utility facilities occupying a state right-of-way “upon a determination within its sole discretion, and without a hearing, that continued operation under the permit will cause or continue a threat to the public or to the operation of the highway”]). In addition, the permit requirement allows the State to verify that the permittee has liability insurance in place to protect the State’s interests (see 17 NYCRR 129.3 [f]; part 127).

Finally, claimant suggests that a highway work permit may not have been necessary here because of the “emergency situation.” DOT’s regulations, however, make clear that the water company was required to have in hand either a job-specific or an annual permit before undertaking excavation of the roadway, notwithstanding any exigency (see 17 NYCRR 126.2, 129.1). There are simply different requirements for notifying DOT, depending on whether or not an emergency exists (compare 17 NYCRR 129.3 [a] [1] with 17 NYCRR 129.3 [a] [2]; see also 17 NYCRR 126.6 [specifying instructions to obtain highway work permits that apply to, among other things, “emergency repairs and public utilities”]). Additionally, even if it were true that the water company was entitled to enter the state highway right-of-way without a work permit in order to make emergency repairs, the State still would not be liable. In that circumstance, “[a]ny permission to work on the premises [would have been] granted upon compulsion and no relationship [would have] existed between [the State] and [the water company] or [claimant]” (Abbatiello, 3 NY3d at 52).

The outcome of this case would be different—as the State concedes—if the water company had secured a highway work permit before excavating in the state highway right-of-way. In that event, the work permit would have created the nexus between the claimant, the injured worker, and the State, the property owner. Without the permit, though, claimant was a trespasser to whom the State owed no duty under Labor Law § 241 (6).

Although acknowledging that we have always “required as a condition of owner liability [under Labor Law § 241 (6)] no more than some connection, or ‘nexus,’ between the owner and the plaintiff,” the dissent never suggests how this minimal standard was met—i.e., what the nexus might have been—in this case (dissenting op at 63; cf. n 4 at 58). All we are told is that “[tjhere is ... no issue ... as to whether” this unspecified nexus “was attenuated by out-of-possession status” as was purportedly the question in Sanatass (dissenting op at 64). Of course, in Sanatass there was a clear nexus—a lease—and the issue, as we articulated it, was not whether this nexus was “attenuated by [the landlord’s] out-of-possession status,” but whether it had been “sever[ed]” by the tenant’s breach of a clause in the lease prohibiting the hiring of a contractor to make alterations in the premises without the landlord’s written prior consent (see Sanatass, 10 NY3d at 341-342). We decided, of course, that this clause did not sever the nexus created by the lease.

Under the dissent’s apparent analysis of our prior cases, a property owner who did not contract for the injury-inducing work is liable under Labor Law § 241 (6) unless the plaintiffs employer’s entry onto the premises results from compulsion— i.e., permission unrelated to a lease, easement or some other property interest granted by the owner. This is certainly contrary to the way in which we have consistently explained and reconciled our precedents, and effectively eliminates the nexus requirement. More to the point, there is no reason to believe that this is what the Legislature intended. Indeed, such a liability scheme would do away with any motive or means for a property owner “to assure that only financially responsible and safety-conscious subcontractors are engaged so that a high standard of care might be maintained throughout the entire construction site”; and to “furnish[ ] an additional incentive to both insurer and insured to maintain safety standards necessary to avoid increased exposure to liability” (Allen v Cloutier Constr. Corp., 44 NY2d 290, 301 [1978]).

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

Chief Judge Lippman (dissenting).

Claimant Alan Morton was injured when, after being “dispatched” by his water company employer to the site of a broken water main located beneath a State-owned roadway, the unshored sides of the area excavated to facilitate the repair fell upon him. He sought to recover for his injuries pursuant to Labor Law § 241 (6), and in the ensuing litigation established that his injuries were attributable to a violation of that statute’s requirement that “[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein.” He is now told, however, that he may not recover because the party against whom recovery is sought—and, indeed, the only party potentially answerable in damages under the present circumstances—the State, had not given permission for the repair. It is not disputed that the State would otherwise be statutorily liable by reason of its ownership of the accident site.

The question, then, is whether the failure of claimant’s employer to obtain permission should operate to deprive claimant of the remedy the Legislature has provided in enacting Labor Law § 241

“to achieve the purpose of protecting workers by placing ‘ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’ (1969 NY Legis Ann, at 407), instead of on workers, who ‘are scarcely in a position to protect themselves from accident’ (Koenig v Patrick Constr. Corp., 298 NY 313, 318)” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]).

Because the strict liability statute at issue nowhere conditions an owner’s liability upon consent to the injury producing work, and because we have expressly held that an owner may not avoid responsibility under the strict liability provisions of the Labor Law by interpolating such a requirement as a condition of recovery, I respectfully dissent.

The strict liability provisions of the Labor Law, sections 240 and 241, do not contain any provision conditioning the liability of an owner or any other statutorily responsible party upon that party’s consent to, permission for, control, or even knowledge, of the injury producing activity. The precautionary obligations imposed under those statutes are absolute and nondelegable and, accordingly, their discharge cannot depend upon whether in a particular case the owner, contractor or agent had notice of or allowed the work (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 560 [1993]; Coleman v City of New York, 91 NY2d 821 [1997]); the imperative behind these enactments is that someone, other than the worker, must bear ultimate responsibility for work site safety. The onus is placed on owners, contractors and their agents not because they are invariably situated and apprised to assure the safety of the workplace, but because, generally, they are the parties best positioned and equipped to meet that essential objective (Allen v Cloutier Constr. Corp., 44 NY2d 290, 301 [1978]).

Abbatiello v Lancaster Studio Assoc. (3 NY3d 46 [2004]) should not be read to alter the Labor Law’s essential allocation of responsibility. There, liability was sought against a building owner for injuries sustained by a technician in the course of a cable television service call for which access to the owner’s building was compelled by statute. In deciding that the owner could not in those particular circumstances be held strictly accountable under the Labor Law, the Court observed,

“Lancaster [the owner] cannot be charged with the duty of providing the safe working conditions contemplated by Labor Law § 240 (1) for cable television repair people of whom it is wholly unaware. Supreme Court correctly noted that, but for Public Service Law § 228, plaintiff would be a trespasser upon Lancaster’s property and Lancaster would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between Lancaster and Paragon or the plaintiff’ (id. at 52).

After Abbatiello, there was some belief that an owner’s knowledge of and permission for the work in the course of which the sued upon injuries were sustained were generally necessary conditions of owner liability under the Labor Law’s strict liability statutes (see e.g. Sanatass v Consolidated Inv. Co., Inc., 38 AD3d 332 [2007], revd 10 NY3d 333 [2008]; Morales v D & A Food Serv., 41 AD3d 352 [2007], revd 10 NY3d 911 [2008]), but we addressed this misconception in Sanatass, where we reiterated,

“our precedents make clear that so long as a violation of the statute proximately results in injury, the owner’s lack of notice or control over the work is not conclusive—this is precisely what is meant by absolute or strict liability in this context. We have made perfectly plain that even the lack of ‘any ability’ on the owner’s part to ensure compliance with the statute is legally irrelevant (see Coleman, 91 NY2d at 823)” (10 NY3d at 340 [citation omitted]).

We at the same time clarified that Abbatiello, properly understood in light of the governing statutes, their often acknowledged protective purposes and our consistent precedents, required as a condition of owner liability no more than some connection, or “nexus,” between the owner and the plaintiff (id. at 341).

While we had noted in Abbatiello that the required nexus might be supplied by the circumstance that an out-of-possession owner had granted a property interest in the premises to the party who had afforded the consequently injured worker access, our decision in Abbatiello turned not upon the absence of a connective property interest, or even upon the absence of permission, but upon the legal incapacity of the owner to withhold access for the injury producing work (3 NY3d at 52). Similarly, in the subsequently decided case of Scaparo v Village of Ilion (13 NY3d 864 [2009]), we upheld the dismissal of a Labor Law § 241 (6) claim upon the ground that the owner “had no choice but to allow the Village [the employer of the injured plaintiffs] to enter its property pursuant to a right-of-way” (id. at 866).

Our decision in Sanatass, by contrast, addressed the situation only hypothetically adverted to in Abbatiello—whether an out-of-possession owner “by a lease agreement or grant of an easement, or other property interest” (Abbatiello, 3 NY3d at 51) retained a sufficient nexus with the property and the plaintiffs work upon it to qualify as an “owner” under the Labor Law’s strict liability statutes. We held that the out-of-possession owner there did retain the requisite connection, since it had leased the premises to the party that had afforded access to the worker subsequently injured upon the premises in the course of performing alterations. In so holding, we acknowledged that the lease in fact contained a provision, allegedly violated by the lessee, requiring the owner’s written permission for the work. Clearly differentiating between nexus and permission, we rejected the contention that violation of the lease provision requiring permission for the work could vitiate the nexus necessary to sustain the strict liability claim against the owner (Sanatass, 10 NY3d at 341-342). We recognized that the injured worker’s right of recovery could not, consistent with the Labor Law’s dominant protective purpose, be made to depend upon legal claims the owner might have over against third parties (id.).

The majority now, ignoring the crucial distinction made in Sanatass, equates nexus with permission and, in so doing, affords the nexus requirement a dimension incompatible with the strict liability provisions at issue and their remedial purpose.

There is, of course, no issue in this case as to whether defendant’s nexus to the work site and claimant was attenuated by out-of-possession status; defendant owned and was in possession of the roadway where the accident took place. The only remaining nexus issue, then, if Abbatiello and its progeny are to be followed, is whether defendant’s ownership interest in the work site was rendered nugatory by some countervailing legal compulsion effectively divesting defendant of its right to exclude claimant’s employer from its premises. Obviously, there was no such compulsion. It is, to the contrary, defendant State’s strenuous contention that, pursuant to Highway Law § 52, access for the work performed by claimant’s employer was legally contingent upon defendant’s issuance of a permit. This provision in the owner’s favor, like the lease provision in Sanatass, may well have been violated by the worker’s unpermitted access of the property, but there is no reason why this defendant any inore than the defendant in Sanatass should therefore avoid the responsibilities of ownership under the Labor Law.

Labeling claimant a “trespasser”—one whose presence on the premises was not permitted—is only another way of importing into the Labor Law a coverage condition of owner permission at variance with the statutory scheme. What is relevant is, rather, whether the worker is “employed” to do work otherwise falling within the statutory coverage criteria (see Labor Law § 241 [6]). There is no question that claimant was legitimately employed to do the very work he was doing at the time of his injury, or that he was present upon defendant’s roadway at the direction of his employer, or that defendant, although empowered to deny access, did not. That defendant may have been unable to exercise its power to do so by reason of the water company’s failure to seek a permit for the work cannot be determinative of claimant’s right to the Labor Law’s protection, particularly where there is no reason to suppose that defendant would have denied access for the emergently necessary repairs. Under the holding now embraced by the majority no worker will know as he or she sets off to a work site at the direction of his or her employer whether he or she will be covered under the Labor Law’s umbrella; there will always be the possibility of a subsequent claim by the owner that permission for the work was not given—that the worker was in the eyes of the owner and pursuant to some agreement or enactment about which the employee cannot be expected to have been aware, a “trespasser.”

The Court does today precisely what it said would be impermissible in Sanatass: it has permitted an owner to “en-graft” onto the Labor Law a limitation upon the law’s coverage at odds with the statutory scheme (see Sanatass, 10 NY3d at 342). True, here it is the State relying upon an enactment in its favor, and not a private party relying upon a contract, that seeks to benefit from the proposed limitation, but there is no evidence that the Legislature, in enacting the statute upon which the defendant bases its claim of noncoverage, intended to truncate the protections of the Labor Law. And, in the absence of such evidence, the State’s dependence upon Highway Law § 52, an apparently modestly intended provision, should be as unavailing as the owner’s reliance upon the lease provision in Sanatass. If the protections of the Labor Law are to be abridged that is a matter to be frankly undertaken by the Legislature; it should not be accomplished, as it is now, by judicial invention.

Pervading the majority opinion is the very basic misunderstanding, nowhere encouraged in the governing statute or our case law, that in every strict liability Labor Law action “nexus” must be separately demonstrated as an element of the claim. This has never been true. Ordinarily, all that is necessary to demonstrate the liability of an “owner” under the subject provisions is a showing of a statutory violation and causation. Ownership itself ordinarily suffices to establish any connection with the property and the work upon it necessary to sustain liability. An additional showing of connection has only been deemed necessary where an owner is out-of-possession—but we have never actually found a lack of nexus on that ground—or where there is some relevant legal impediment to the owner’s assertion of his ownership prerogatives, as in Abbatiello and Scaparo, where access to the premises is statutorily or otherwise legally compelled notwithstanding any right of exclusion the owner might otherwise have. There has never, until today, been a case in which an in-possession fee owner in no way legally disabled from the assertion of its ownership rights has been held to have an insufficient connection to those working upon the property to support statutory liability under the Labor Law. This is a significant and unwarranted departure that the Legislature may well wish to curtail.

Strict liability statutes invariably produce some harsh outcomes, but that is not a reason to deny them effect. The Legislature has determined to impose extensive duties upon owners to assure worker safety and provide reliable recourse in the event of construction related injury. Plainly, defendant was not at fault in connection with claimant’s harm; it was held accountable simply by reason of its ownership of the premises where the accident occurred. Owners, however, are not helpless to protect themselves from the exposure created by the Labor Law. They can purchase insurance to guard against the risk of statutory liability, and can require contractors to do the same and name them as additional insureds. They can, in addition, seek through third-party litigation to place financial responsibility for liability incurred on purely statutory grounds with the party actually at fault. What they should not be permitted to do, however, is to unilaterally tinker with the Labor Law’s basic protective ambit and thereby leave an injured worker, otherwise deserving of the law’s protection, without recourse. Accordingly, I dissent from the Court’s determination to afford such permission and would reverse and rule in claimant’s favor.

Judges Graffeo, Smith, Pigott and Jones concur with Judge Read; Chief Judge Lippman dissents and votes to reverse in a separate opinion in which Judge Ciparick concurs.

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

      . Claimant first moved for leave to appeal in 2005. We dismissed that motion for lack of finality because his claim under Labor Law § 240 remained pending in the lawsuit (5 NY3d 783 [2005]). In May 2009, however, the parties stipulated to discontinue the section 240 claim.

      . As we noted in Brothers v New York State Elec. & Gas Corp. (11 NY3d 251, 256 n 1 [2008]), “[i]n tort law, the term ‘nondelegable duty,’ although widely used, is somewhat misleading. The question is not so much whether a defendant can or has delegated to another party a duty owed by that defendant to a particular plaintiff, but whether the defendant owes the plaintiff a duty in the first place.”

      . Like Labor Law § 241 (6), Labor Law § 240 (1) imposes a nondelegable duty on owners.

      . Claimant articulates the nexus that he asserts in this case as follows: “At bar, the nexus between claimant’s work and the State’s ownership is clear—the emergency situation blocked traffic and the road was buckling, and the State had a non-delegable duty to maintain the road; [the water company’s] work was designed to assist the State.” In fact, the water company did not repair the leak to help the State maintain its roadway; its repairs simply eliminated or mitigated damages otherwise owing the State for the harm to State-owned property caused by the leak, which the water company was obligated to fix to maintain service to its customers.

      . For some unexplained reason, the water company purchased protective liability insurance naming DOT as an additional insured, which was in force at the time of claimant’s accident, even though there was no job-specific or annual work permit requiring it. Although the State impleaded the insurance carrier after learning about the policy during discovery, the Court of Claims dismissed the third-party complaint for failure to provide the insurer with timely notice of the claim.

      . Indeed, it appears from the trial testimony that a permit would have routinely issued.

      . While in our affirming memorandum in Scaparo we without explanation glossed “out-of-possession” as without contractual relationship (13 NY3d at 866), it does not appear that any departure from Abbatiello was intended and the substituted language now read as broadening the separate nexus requirement was, in any event, dicta.

      . Defendant, presumably not out of any charitable impulse on the part of the water company, was, in fact, named as additional insured in the water company’s liability policy. While the State, and now the majority, suggests that defendant’s failure to realize the benefit of that coverage in this case is attributable to the water company’s noncompliance with the state permitting law, the suggestion is belied by express findings in the underlying insurance litigation that the State failed to make reasonable efforts to ascertain the existence of such coverage and unreasonably delayed in filing a claim, even after it had learned of the coverage.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [930 NE2d 282, 904 NYS2d 361]
    The People of the State of New York, Appellant-Respondent, v Daniel J. Ballman, Respondent-Appellant.
    Argued April 29, 2010;
    decided June 10, 2010

      POINTS OF COUNSEL

      R. Michael Tantillo, District Attorney, Canandaigua (Catherine A. Walsh of counsel), for appellant-respondent.
    I. Proper statutory interpretation of Vehicle and Traffic Law § 1192 (8) requires that all prior out-of-state convictions be treated equally with prior New York convictions and, therefore, the word “convictions” in the enabling language of the bill enacting section 1192 (8) refers to the current New York State driving while intoxicated conviction, not future “out-of-state” convictions. (People v Litto, 8 NY3d 692; Matter of Kenneth J., 102 Misc 2d 415; Matter of Davies, 242 NY 196; Matter of Silson v New York State Employees’ Retirement Sys., 208 Misc 59, 286 App Div 936; Matter of Winters, 277 App Div 24, 301 NY 680, 302 NY 666, 845; United States v Salerno, 481 US 739; Becker Steel Co. of America v Cummings, 296 US 74; LaValle v Hayden, 98 NY2d 155; People v Mertz, 68 NY2d 136.) II. The underlying out-of-state Georgia conviction qualifies as a crime under Vehicle and Traffic Law § 1192 (2) and therefore qualifies as a prior conviction under Vehicle and Traffic Law § 1192 (8). (People v Taylor, 65 NY2d 1; People v Atkins, 85 NY2d 1007; People v Turner, 234 AD2d 704; People v Casimiro, 308 AD2d 456; People v Mertz, 68 NY2d 136; People v Miller, 199 AD2d 692, 82 NY2d 928.) III. The Appellate Division correctly concluded that defendant was properly detained for investigatory purposes after the police officer had (1) observed defendant park his vehicle in a restricted parking spot, (2) detected a strong odor of alcoholic beverage on defendant, and (3) observed defendant to have watery eyes and slurred speech. (People v Hasenflue, 252 AD2d 829, 92 NY2d

      982; People v Yukl, 25 NY2d 585; People v Hicks, 68 NY2d 234; People v Parris, 26 AD3d 393; People v Myers, 1 AD3d 382.)

      Shirley A. Gorman, Brockport, for respondent-appellant.
    I. The 2006 amendment to Vehicle and Traffic Law § 1192 (8), changing the way out-of-state convictions are treated, does not apply to an out-of-state conviction which occurred before that amendment took effect. (People v Litto, 8 NY3d 692; People v Morse, 62 NY2d 205; People v Mertz, 68 NY2d 136.) II. Even if the amendment to Vehicle and Traffic Law § 1192 (8) applied, the conduct underlying the conviction in Georgia would not constitute a misdemeanor under our law. (People v Alvarez, 70 NY2d 375; People v Mertz, 68 NY2d 136; People v Lucas, 11 NY3d 218; People v Taylor, 65 NY2d 1; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Iannone, 45 NY2d 589.) III. The police did not have probable cause to arrest Mr. Ball-man until after conducting field sobriety tests so all evidence obtained after he was forcibly returned to the police station for those tests should be suppressed. (People v Hicks, 68 NY2d 234; People v Chestnut, 51 NY2d 14; People v Yukl, 25 NY2d 585; Florida v Royer, 460 US 491; Dunaway v New York, 442 US 200; Wong Sun v United States, 371 US 471; People v Howard, 50 NY2d 583; People v Bryan, 190 Misc 2d 818; People v Tillman, 184 Misc 2d 20; People v Offen, 96 Misc 2d 147.)
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal raises the issue whether Vehicle and Traffic Law § 1192 (8) allows an out-of-state conviction occurring prior to November 1, 2006 to be considered for purposes of elevating a charge of driving while intoxicated from a misdemeanor to a felony. We hold that it does not.

Defendant was indicted for driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c]) and for obstructing governmental administration in the second degree (Penal Law § 195.05) for acts committed on February 22, 2007. As the basis for elevating defendant’s driving while intoxicated charge to a felony, the People filed a special information charging that defendant had a 1999 conviction for driving with an unlawful alcohol concentration in the state of Georgia (Ga Code Ann § 40-6-391), which would have been a violation of Vehicle and Traffic Law § 1192 (2) had it occurred in New York.

Defendant moved to dismiss the indictment raising several arguments, including that the date of the Georgia conviction rendered it ineligible to serve as a predicate for elevating the charge to driving while intoxicated as a felony. County Court denied the motion, finding that the legislative intent behind Vehicle and Traffic Law § 1192 (8) was to treat prior out-of-state convictions as if they were prior convictions for the same actions occurring in New York State. The same court denied defendant’s motion to suppress the evidence against him and defendant ultimately pleaded guilty to driving while intoxicated as a felony in full satisfaction of the indictment.

The Appellate Division reversed, vacated the plea, dismissed the first count of the indictment for felony driving while intoxicated without prejudice to the People to re-present appropriate charges, reinstated the second count of the indictment for obstructing governmental administration and remitted to County Court for further proceedings on that second count (64 AD3d 9 [4th Dept 2009]). The Court determined that, based on the language of the 2006 amendment to Vehicle and Traffic Law § 1192 (8) and its enabling language, convictions occurring prior to the November 1, 2006 effective date of the statute, including defendant’s 1999 Georgia conviction, could not be used to raise a driving while intoxicated (DWI) offense from a misdemeanor to a felony. The Court, however, upheld County Court’s suppression ruling. A Judge of this Court granted both parties leave to appeal (12 NY3d 922 [2009]). We now affirm.

At issue here is the interpretation of Vehicle and Traffic Law § 1192 (8), as amended in 2006. The statute reads as follows:

“A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section . . . provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section” (Vehicle and Traffic Law § 1192 [8]).

The subdivision further provides that, if the out-of-state conduct would have been a violation of section 1192 had it occurred instate, but would not have constituted a misdemeanor or a felony, the conduct will be deemed a prior conviction of driving while ability impaired for purposes of determining the appropriate penalties (see Vehicle and Traffic Law § 1192 [8]).

The enabling language accompanying the amendment specifies that

“[t]he provisions of [Vehicle and Traffic Law § 1192 (8)], as it existed prior to the amendment made by . . . this act, shall apply only to convictions occurring on or after November 29, 1985 through and including October 31, 2006 and provided, further, that the provisions of [Vehicle and Traffic Law § 1192 (8)] as amended by . . . this act shall apply only to convictions occurring on or after November 1, 2006” (L 2006, ch 231, § 2).

The amendment took effect on November 1, 2006 (L 2006, ch 231, § 3).

The dispute centers on the meaning of the term “convictions” in the enabling language—whether it applies to domestic or prior out-of-state convictions. “When presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature” (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006] [internal quotation marks and citation omitted]). Although the text itself is generally the best evidence of legislative intent, where “the language is ambiguous, we may examine the statute’s legislative history” (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009]). Here, the enabling language presents such an ambiguity.

In order to best understand the 2006 amendments, it is helpful to trace the evolution of this subdivision. The initial version of this provision, Vehicle and Traffic Law § 1192 (7), was enacted in 1985 to allow prior out-of-state convictions for driving under the influence of drugs or alcohol to be considered when determining appropriate penalties for subsequent New York offenses (L 1985, ch 694, § 1). Until that time, prior out-of-state convictions had not been considered for penalty purposes (see Senate Mem in Support, Bill Jacket, L 1985, ch 694). Under section 1192 (7), all such prior out-of-state convictions were treated as traffic infractions, rather than misdemeanors or felonies, regardless of the level of the crime in the other state or the degree of any equivalent violation in New York (L 1985, ch 694, § 1). The enabling language of the legislation provided that the “act shall take effect on the one hundred twentieth day next succeeding the date on which it shall have become a law and shall apply to out-of-state convictions occurring on or after such date” (L 1985, ch 694, § 2). Since the statute was enacted August 1, 1985, its effective date was therefore November 29, 1985.

When this provision was renumbered from subdivision (7) to Vehicle and Traffic Law § 1192 (6) in 1988, the statutory language remained largely the same. However, the bulk of the enabling language was incorporated into the body of the statute—providing that the subdivision would only be applicable to convictions occurring on or after November 29, 1985 (L 1988, ch 47, § 18). The primary difference in the statutory language was the omission of the term “out-of-state.” The subdivision was again renumbered to Vehicle and Traffic Law § 1192 (8) (L 1990, ch 173, § 62), where it appears today.

As noted above, the 2006 amendments ended the practice of treating all prior out-of-state convictions as mere traffic infractions under New York law. Rather, for purposes of determining penalties, a prior out-of-state conviction is now treated as a conviction of the equivalent conduct under New York law. In addition, the amendment again moved the date restrictions, this time from the statute to the enabling language.

This history reflects that the Legislature recognized the harsher penalties that had been applied when a person had a prior in-state conviction, as opposed to a prior out-of-state conviction, and intended to remedy that discrepancy. “This bill would eliminate one of the loopholes that allows repeat DWT offenders to face lesser penalties simply because prior convictions occurred out of state” (Assembly Mem in Support, Bill Jacket, L 2006, ch 231). The stated purpose of the amendment was “[t]o ensure that a prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction for the same action as if it had occurred in New York State” (Assembly Mem in Support, Bill Jacket, L 2006, ch 231).

Although the legislative history does not specifically discuss a time limitation, it is significant that the Legislature chose to continue applying the November 29, 1985 date originally used to allow for consideration of out-of-state convictions. The most sensible interpretation of the enabling language is that the Legislature chose to remedy this differential treatment going forward, by continuing to apply the previous statutory scheme to out-of-state convictions occurring prior to November 1, 2006, and applying the statute as amended to out-of-state convictions occurring after that date. The People’s argument that “convictions” in the enabling language refers to current New York convictions is belied by the use of that November 29, 1985 to October 31, 2006 time frame. In addition, if “convictions occurring on or after November 1, 2006” was meant to refer to current New York convictions, the enabling language establishing the effective date of the statute as November 1, 2006 (L 2006, ch 231, § 3) would be redundant. Treating “convictions” as prior out-of-state convictions also avoids any potential ex post facto problem arising from the People’s proposed interpretation of the statute.

The enabling language of the 2006 amendments should be interpreted consistently with the language of the statute itself. The subdivision is entitled “Effect of prior out-of-state conviction” and throughout the subdivision the only references are to prior convictions—when a prior out-of-state conviction will be deemed a prior conviction under New York law. Moreover, use of the prior out-of-state convictions is necessary at the inception of the case, for charging purposes, in order to make the initial determination of whether a defendant can be indicted for misdemeanor or felony DWI. Based upon all of the above considerations, the most reasonable interpretation of the statute and its enabling language is that out-of-state convictions from prior to November 1, 2006 cannot be used to elevate a DWI offense to a felony.

In light of this disposition, it is not necessary to address defendant’s argument concerning whether the conduct underlying his Georgia conviction would have been the equivalent of a misdemeanor under Vehicle and Traffic Law § 1192. In addition, defendant’s cross appeal is dismissed, since he was not adversely affected by the Appellate Division order within the meaning of CPL 450.90 (1).

Accordingly, on the People’s appeal, the order of the Appellate Division should be affirmed. Defendant’s appeal should be dismissed upon the ground that the order from which the appeal is taken is not adverse or partially adverse within the meaning of CPL 450.90 (1) (see People v Edwards, 96 NY2d 445, 451 n 2 [2001]).

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

On the People’s appeal, order affirmed. Defendant’s appeal dismissed upon the ground that the order from which the appeal is taken is not adverse or partially adverse within the meaning of CPL 450.90 (1) (see People v Edwards, 96 NY2d 445, 451 n 2 [2001]).


text:
    [930 NE2d 756, 904 NYS2d 683]
    John Galliano, S.A., Respondent, v Stallion, Inc., Appellant.
    Argued April 27, 2010;
    decided June 8, 2010

      POINTS OF COUNSEL

      Silverman Sclar Shin & Byrne PLLC, New York City (Alan M. Sclar and Mikhail Rainer of counsel), for appellant.
    I. John Galliano, S.A.’s failure to effect proper service under the Hague Convention deprived the French court of personal jurisdiction over Stallion, Inc. (Kolovrat v Oregon, 366 US 187; Sumitomo Shoji America, Inc. v Avagliano, 457 US 176; El Al Israel Airlines, Ltd. v Tsui Yuan Tseng, 525 US 155; Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694; Reynolds v Woosup Koh, 109 AD2d 97; Derso v Volkswagen of Am., 159 AD2d 937.) II. John Galliano S.A.’s failure to effect service of process sufficient to accord Stallion, Inc. reasonable notice and opportunity to be heard deprived the French court of personal jurisdiction, even where Stallion had agreed that the French court would have jurisdiction over disputes among the parties. (Tulsa Professional Collection Services, Inc. v Pope, 485 US 478; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694; National Equipment Rental, Ltd. v Szukhent, 375 US 311; Fashion Page v Zurich Ins. Co., 50 NY2d 265; Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78; Employers Ins. of Wausau v Banco De Seguros Del Estado, 199 F3d 937; Phillips Petroleum Co. v Shutts, 472 US 797; Securities & Exch. Commn. v Ross, 504 F3d 1130;
      Burger King Corp. v Rudzewicz, 471 US 462.) III. John Galliano, S.A.’s failure to serve authorized representatives of Stallion, Inc. denied Stallion notice of the French proceeding. (Fashion Page v Zurich Ins. Co., 50 NY2d 265; Carlin v Crum & Forster Ins. Co., 170 AD2d 251; Todaro v Wales Chem. Co., 173 AD2d 696; American Fed. Group v Union Chelsea Natl. Bank, 279 AD2d 433; Hoffman v Petrizzi, 144 AD2d 437; Martinez v Church of St. Gregory, 261 AD2d 179; Albilia v Hillcrest Gen. Hosp., 124 AD2d 499.) IV Material issues of fact required the denial of summary judgment. (St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d 523; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658; Ritt v Lenox Hill Hosp., 182 AD2d 560; 989 Sixth Ave. Assoc. v Stolow, 176 AD2d 556; B.R.I. Coverage Corp. v Imperial, 182 AD2d 529; R-H-D Constr. Corp. v Miller, 222 AD2d 802.) V. New York’s well-established public policy favoring resolution of disputes on the merits precludes enforcement of the French default judgment. (Ackerson v Stragmaglia, 176 AD2d 602; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522; Picinic v Seatrain Lines, 117 AD2d 504.) VI. A traverse hearing was warranted to afford Stallion, Inc. an opportunity to challenge the jurisdictional basis for the French default judgment. (Plugmay Ltd. v National Dynamics Corp., 53 Misc 2d 451, 28 AD2d 645; Falcon Mfg. [Scarborough] Ltd. v Ames, 53 Misc 2d 332; Cooney v Cambridge Mgt. & Realty Corp., 35 AD3d 522; Ackerson v Stragmaglia, 176 AD2d 602; Martens v Martens, 284 NY 363.)

      Ellenoff Grossman & Schole, LLP, New York City (Ted Poretz and Gabriel Mendelberg of counsel), for respondent.
    I. Stallion, Inc.’s claims under CPLR 5304 (a) (2) were precluded by CPLR 5305 (a) (3). (CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d 215; Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78; Canadian Imperial Bank of Commerce v Saxony Carpet Co., Inc., 899 F Supp 1248; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; State of New York v Patricia II., 6 NY3d 160; Riley v County of Broome, 95 NY2d 455; Omni Capital Int’l, Ltd. v Rudolf Wolff & Co., 484 US 97; Murphy Brothers, Inc. v Michetti Pipe Stringing, Inc., 526 US 344.) II. There is no other statutory bar to enforcement. (CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d 215; Mullane v Central Hanover Bank & Trust Co., 339 US 306.) III. Stallion, Inc. received adequate notice of the French proceedings. (Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78; CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d 215; Burda Media, Inc. v Viertel, 417 F3d 292; In re South African Apartheid Litig., 643 F Supp 2d 423; Vazquez v Sund Emba AB, 152 AD2d 389; Casa de Cambio Delgado v Casa de Cambio Puebla, S.A. de C.V., 196 Misc 2d 1; Soberal-Perez v Heckler, 717 F2d 36; Tahan v Hodgson, 662 F2d 862.) IV John Galliano, S.A. strictly complied with applicable service rules. (Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694; Morgenthau v Avion Resources Ltd., 11 NY3d 383; Ackermann v Levine, 788 F2d 830; Aspinall’s Club v Aryeh, 86 AD2d 428; Northrup King Co. v Compania Productora Semillas Algodoneras Selectas, S.A., 51 F3d 1383; Vazquez v Sund Emba AB, 152 AD2d 389; Christensen v Harris County, 529 US 576; Mora v New York, 524 F3d 183; Casa de Cambio Delgado v Casa de Cambio Puebla, S.A. de C.V., 196 Misc 2d 1; Greenfield v Suzuki Motor Co., Ltd., 776 F Supp 698.) V. Summary judgment was proper as no material issues of fact were in dispute. (Misicki v Caradonna, 12 NY3d 511; Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78.) VI. The French judgment does not violate New York public policy. (Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78; Ackermann v Levine, 788 F2d 830; Porisini v Petricca, 90 AD2d 949; Aspinall’s Club v Aryeh, 86 AD2d 428; Sarl Louis Feraud Intl. v Viewfinder, Inc., 489 F3d 474; CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d 215.) VII. The trial court correctly calculated post-French judgment interest in the New York judgment. (Wells Fargo & Co. v Davis, 105 NY 670; Buckeye Retirement Co., L.L.C., Ltd. v Lee, 41 AD3d 183.)
   OPINION OF THE COURT

Chief Judge Lippman.

A court in Paris, France entered a money judgment in favor of John Galliano, S.A. (Galliano) against Stallion, Inc. (Stallion), and Galliano seeks to have that judgment recognized in New York. The Appellate Division, applying New York’s Uniform Foreign Country Money-Judgments Recognition Act, codified at CPLR article 53, concluded that the French judgment should be recognized in New York (62 AD3d 415 [1st Dept 2009]). We granted leave to appeal and now affirm.

The underlying dispute is a contractual one. In 1998, Stallion entered into a licensing agreement with Les Jardins D’Avron, a French company, concerning the use of the “John Galliano” trademark for the production and distribution of luxury fur items in the United States, and Galliano was later substituted for Les Jardins D’Avron as a party to the agreement. The agreement provides that it is governed by the laws of France, and the agreement’s forum selection clause, entitled “Competent jurisdiction,” further provides that “[a]ny dispute which may arise in connection with this Agreement . . . shall be submitted to the competent court for the district over which the Paris Court of Appeals has jurisdiction.”

Disputes between Galliano and Stallion arose with respect to royalty payments Galliano alleged that Stallion owed it under the licensing agreement and expenses Galliano believed it was owed in connection with a fashion show. For its part, Stallion believed it was owed money for various goods it had delivered to Les Jardins D’Avron.

The parties were unable to resolve these ongoing disagreements, prompting Galliano in 2002 to sue Stallion in the Commercial Court in Paris. Three attempts to serve Stallion with the French equivalent of a summons and complaint were made under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Convention) (see Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694 [1988]). In each instance the documents were delivered to Stallion and a certificate of service completed. Stallion, however, did not appear in the French proceeding, and judgment amounting to “the exchange value in euro as of the date of payment of the amount of USD 178,810,” plus specified interest, was entered in Galliano’s favor in October 2004. Galliano commenced this proceeding three years later to enforce the judgment in New York.

Stallion argues that New York should not recognize the judgment of the French court against it because that court lacked personal jurisdiction over Stallion. Stallion asserts that the purported service under the Hague Convention was ineffective because the documents delivered to it were written in French and were not accompanied by an English translation. Absent proper service, the argument continues, Stallion cannot be said to have received effective notice of the proceeding in Paris, and a defendant’s lack of notice of the foreign proceeding that resulted in a money judgment against it must result in nonrecognition of that judgment in New York under CPLR article 53 (see CPLR 5304 [a] [2]; [b] [2]).

“New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts,” and, in accordance with that tradition, the State adopted the Uniform Foreign Country Money-Judgments Recognition Act as CPLR article 53 (CIBC Mellon Trust Co. v Mora Hotel Corp., 100 NY2d 215, 221 [2003]). Article 53 “applies to any foreign country judgment which is final, conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal” (CPLR 5302), and “a foreign country judgment is considered ‘conclusive between the parties to the extent that it grants or denies recovery of a sum of money’ ” (CIBC Mellon Trust Co., 100 NY2d at 221, quoting CPLR 5303).

Generally, a foreign money judgment is to be recognized in New York under article 53 unless a ground for nonrecognition under CPLR 5304 is applicable. Grounds for nonrecognition include a lack of personal jurisdiction over the defendant by the foreign court (see CPLR 5304 [a] [2]) and a defendant’s failure to receive “notice of the proceedings in sufficient time to enable him to defend” (CPLR 5304 [b] [2]).

CPLR 5304’s grounds for nonrecognition of foreign money judgments must be read together with CPLR 5305, however, which provides that a “foreign country judgment shall not be refused recognition for lack of personal jurisdiction if . . . the defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved” (CPLR 5305 [a] [3]). Plainly, as the Appellate Division rightly concluded (see 62 AD3d at 416), Stallion did just that when it entered into the licensing agreement given that agreement’s forum selection clause.

Stallion urges, however, that the Appellate Division’s reading of CPLR 5305 effectively negates the notice component of a court’s proper exercise of personal jurisdiction over a defendant, and Stallion asserts that it did not receive adequate notice of the proceedings in Paris because the documents purportedly served on it pursuant to the Hague Convention were written in French, unaccompanied by an English translation.

Notice of a proceeding is, of course, a fundamental component of a court’s proper exercise of personal jurisdiction over a party, and CPLR 5304 itself expressly recognizes a lack of notice as a ground for not recognizing a foreign money judgment in New York (see CPLR 5304 [b] [2]). We agree with Stallion that if recognition of a foreign money judgment were sought in New York and the defendant had received no meaningful notice of the foreign proceeding, that lack of notice would serve as a legitimate basis for not enforcing the judgment in our state, as the entry of such a judgment would not comport with our conception of personal jurisdiction or our notion of fairness. This, however, is not that case. The Appellate Division concluded that Stallion “received notice of the French action [and] its service by personal delivery is unlikely to give rise to any objections based on due process” (62 AD3d at 416). We agree.

We first note that, in seeking enforcement of a foreign money judgment in New York, “the judgment creditor does not seek any new relief against the judgment debtor, but instead merely asks the court to perform its ministerial function of recognizing the foreign country money judgment and converting it into a New York judgment” (CIBC Mellon Trust Co., 100 NY2d at 222). “[T]he inquiry turns on whether exercise of jurisdiction by the foreign court comports with New York’s concept of personal jurisdiction, and if so, whether that foreign jurisdiction shares our notions of procedure and due process of law” (Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78, 83 [2006]). “If the above criteria are met, and enforcement of the foreign judgment is not otherwise repugnant to our notion of fairness, the foreign judgment should be enforced in New York under well-settled comity principles without microscopic analysis of the underlying proceeding” (id.).

Those criteria are met here, and, on this record, the enforcement of the French judgment is not repugnant to our notion of fairness. Stallion was well aware of its ongoing disputes with Galliano, and it was also aware that, under the licensing agreement, those disputes, if litigated, would be adjudicated in accordance with French law by a court in France. Stallion was delivered court papers written in French, first by a U.S. marshal, then subsequently on two occasions by process servers from Process Forwarding International (the entity selected by the Department of Justice to carry out service in the United States under the Hague Convention), all in an effort to notify it of the commencement of the French proceeding.

Stallion disputes that these service efforts complied with the Hague Convention because the papers written in French were not accompanied by an English translation. However, as long as we do not find the procedure used to be fundamentally unfair, the propriety of the service under the Hague Convention was an issue for the court in France. Our inquiry now under CPLR article 53 is more circumscribed; we need only determine at this stage whether the recognition requirements of article 53 have been met.

Significantly for our purposes in applying article 53 in this case, before it could properly issue a judgment against Stallion in Stallion’s absence, article 15 of the Hague Convention required the Paris Commercial Court to consider whether service on Stallion was properly made or whether “the document was actually delivered to the defendant or to his residence by another method provided for by” the treaty (for example, service “voluntarily” accepted as contemplated by the second paragraph of article 5) (Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 UST 361, TIAS No. 6638 [1969]). Moreover, in whatever form service takes, article 15 further requires that it be “established”—again, before judgment may be entered in a foreign defendant’s absence—that the service abroad was made “in sufficient time to enable the defendant to defend” itself in the proceeding id. [notably, language that is identical to that used by our Legislature in CPLR 5304 (b) (2)]). Given that the Paris Commercial Court entered a judgment in Galliano’s favor in Stallion’s absence, it would seem clear that it was “established” to that court’s satisfaction that article 15’s requirements were met.

On this record, we are satisfied that Stallion had notice of the proceeding in France “in sufficient time to enable [it] to defend” itself in that action (CPLR 5304 [b] [2]), and the Paris Commercial Court’s exercise of personal jurisdiction over Stallion under these circumstances was not unfair. Moreover, as noted, in the licensing agreement Stallion agreed to submit any contractual disputes to the jurisdiction of the French courts prior to the commencement of the proceeding in Paris and, pursuant to CPLR 5305 (a) (3), the French judgment should not be refused recognition.

On this record, because the French court’s money judgment in favor of Galliano does not run afoul of our conception of personal jurisdiction or our notion of fairness, well settled CPLR article 53 law compels the recognition and enforcement of the French judgment in New York.

The Appellate Division order, insofar as appealed from, should be affirmed, with costs.

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

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

       Below, Stallion also relied on CPLR 2101 (b), an argument rejected by Supreme Court (19 Misc 3d 1108[A], 2008 NY Slip Op 50605[U], *3 [2008]) that Stallion has since abandoned.


author: Chief Judge Lippman. Smith, J. (dissenting).

text:
    [931 NE2d 529, 905 NYS2d 545]
    In the Matter of Richard E. Gordon et al., Appellants, v Town of Esopus et al., Respondents. (And Three Other Related Proceedings.)
    Argued May 5, 2010;
    decided June 15, 2010

      POINTS OF COUNSEL

      Van DeWater & Van DeWater, LLP, Poughkeepsie (David D. Hagstrom of counsel), for appellants.
    I. The subject property should be valued according to its existing use as managed forest land on the applicable valuation and taxable status dates. (Matter of General Motors Corp. Cent. Foundry Div. v Assessor of Town of Massena, 146 AD2d 851, 74 NY2d 604; Matter of Ross v Town of Santa Clara, 266 AD2d 678; Matter of Weingarten v Town of Ossining, 85 AD2d 697; Matter of Addis Co. v Srogi, 79 AD2d 856, 53 NY2d 603; Matter of PCK Dev. Co., LLC v Assessor of Town of Ulster, 20 AD3d 660, 6 NY3d 708; Matter of Adirondack Mtn. Reserve v Board of Assessors of Town of N. Hudson, 99 AD2d 600; Matter of General Elec. Co. v Macejka, 117 AD2d 896; Matter of Stillwell Equip. Corp. v Assessors for Town of Greenburgh, 251 AD2d 672; Matter of Clove Dev. Corp. v Frey, 63 NY2d 181.) II. Legislative intent supports valuation according to existing use as RPTL 480-a forest land on the applicable valuation and taxable status dates. (Matter of Clove Dev. Corp. v Frey, 63 NY2d 181; Matter of Honeoye Cent. School Dist. v Berle, 72 AD2d 25, 51 NY2d 970; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350.) III. Donald Fisher’s appraisal methodology and comparables were thorough, reliable and based on the property’s current use. (Matter of Honeoye Cent. School Dist. v Berle, 72 AD2d 25, 51 NY2d 970; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236; Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 1 NY3d 505; Matter of Coca-Cola Bottling Co. of N.Y. v Assessor of Town of Geddes, 241 AD2d 958; Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon, 88 NY2d 724.) IV Michael DeWan’s appraisal is fatally flawed for failing to value the

      property as managed forest land. (Matter of Gibson v Gleason, 20 AD3d 623, 5 NY3d 713.) V. When the Appellate Division reverses the trial court, the Court of Appeals may review the facts to determine which court’s determination more closely comports with the evidence. (Matter of Hime Y., 54 NY2d 282; Glenbriar Co. v Lipsman, 5 NY3d 388; W.T. Grant Co. v Srogi, 52 NY2d 496; Aviation Constructors, Inc. v Baldassano Architectural Group, P.C., 57 AD3d 927; Zeltser v Sacerdote, 52 AD3d 824; Gonzalez v State of New York, 60 AD3d 1193; Felt v Olson, 51 NY2d 977.)

      Peter F. Matera, West Park, for respondents.
    I. Petitioners’ appraisal was insufficient to prove by a preponderance of the evidence that the subject property was overvalued. (Matter of Ross v Town of Santa Clara, 266 AD2d 678; Matter of City of Troy v Kusala, 227 AD2d 736; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236; Matter of Coca-Cola Bottling Co. of N.Y. v Assessor of Town of Geddes, 241 AD2d 958; Niagara Falls Urban Renewal Agency v 123 Falls Realty, 66 AD2d 1009; Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179; Matter of City of Troy v Town of Pittstown, 306 AD2d 718; Matter of Adirondack Mtn. Reserve v Board of Assessors of Town of N. Hudson, 99 AD2d 600; Matter of Stillwell Equip. Corp. v Assessors for Town of Greenburgh, 251 AD2d 672; Matter of Addis Co. v Srogi, 79 AD2d 856.) II. Respondents’ appraisal is fully supported by the facts and law. (Matter of Ross v Town of Santa Clara, 266 AD2d 678; Matter of City of Troy v Kusala, 227 AD2d 736.) III. There is no authority that provides for a special method of assessment for classification 912 property and the subject property should be appraised as vacant land. (Matter of Honeoye Cent. School Dist v Berle, 72 AD2d 25; Matter of Aldrich v Murphy, 42 AD2d 385; Matter of Addis Co. v Srogi, 79 AD2d 856; Matter of General Elec. Co. v Macejka, 117 AD2d 896; Matter of General Motors Corp. Cent. Foundry Div. v Assessor of Town of Massena, 146 AD2d 851; Matter of PCK Dev. Co., LLC v Assessor of Town of Ulster, 20 AD3d 660; Matter of Stillwell Equip. Corp. v Assessors for Town of Greenburgh, 251 AD2d 672; Matter of Ross v Town of Santa Clara, 266 AD2d 678; Matter of Adirondack Mtn. Reserve v Board of Assessors of Town of N. Hudson, 99 AD2d 600; Matter of Metropolitan Life Ins. Co. v Tax Commn. of City of N.Y., 85 AD2d 525.) IV. Petitioners’ reliance on the legislative intent in regard to RPTL 480-a is misplaced. (Matter of Honeoye Cent. School Dist. v Berle, 72 AD2d 25; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350.)
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal concerns whether land certified by the Department of Environmental Conservation (DEC) as managed forest land under Real Property Tax Law § 480-a is to be assessed as vacant land or as forest land.

Taxpayer petitioners commenced tax review proceedings against the Town of Esopus, its Assessor, and its Board of Assessment Review (collectively, the Town) to challenge the taxable assessed value of their land on the assessment rolls for the years 2002 through 2005. The Town argues that the land at issue should be deemed vacant land, a determination that would allow the land to be assessed for tax purposes based on its present potential for development, its “highest and best” use. The taxpayer petitioners, pointing out that the land has been certified as managed forest land by the DEC pursuant to the Real Property Tax Law every year since 1978, argue that the land, like any other parcel of land being put to a particular use, must be assessed for tax purposes based on its current use (RPTL 302 [1]).

The Appellate Division, with two Justices dissenting, ruled in the Town’s favor (59 AD3d 896 [3d Dept 2009]). We granted the petitioner taxpayers leave to appeal (13 NY3d 703 [2009]) and now reverse. We agree with petitioners and conclude that forest land certified as such by the DEC under RPTL 480-a is used, for real property tax assessment purposes, as forest land and must be assessed based on that use (RPTL 302 [1]).

Petitioners own approximately 108 acres of land situated along the Hudson River in the Town. Beginning in 1978 and annually since then, the DEC has certified approximately 104 of petitioners’ 108 acres as “forest land” pursuant to RPTL 480-a. Under the RPTL, “forest land” is defined as “land exclusively devoted to and suitable for forest crop production through natural regeneration or through forestation and shall be stocked with a stand of forest trees sufficient to produce a merchantable forest crop within thirty years of the time of original certification” (RPTL 480-a [1] [f]). The process of obtaining forest land certification from the DEC is somewhat involved. A property owner must submit, on an annual basis, an application to the DEC that includes a “commitment” that “the owner of a certified eligible tract” will be committed “to continued forest crop production for the next succeeding ten years under an approved management plan” (RPTL 480-a [1] Ob]). An “approved management plan” is a plan approved by the DEC for an “eligible tract” that contains “requirements and standards to ensure the continuing production of a merchantable forest crop selected by the owner” (RPTL 480-a [1] [a] [i]). An “eligible tract” is defined as a “tract of privately owned forest land of at least fifty contiguous acres, exclusive of any portion thereof not devoted to the production of forest crops” (RPTL 480-a [1] [e]).

Once the DEC concludes that a tract is an “eligible tract,” it sends a certificate of approval to the owner (RPTL 480-a [2] [a]), and the owner files that certificate with the clerk of the county in which the tract is situated. If the tax assessor is “satisfied that the requirements of this section are met,” the assessor “shall approve the application” (RPTL 480-a [3] [b]), though the tax assessor’s approval power does not include the authority to second-guess the DEC’s certification of a parcel of land as “forest land” (Matter of Clove Dev. Corp. v Frey, 63 NY2d 181, 183-184 [1984] [a tax assessor “has no power to make a determination whether property is an ‘eligible tract’ for forest land tax exemption” because the authority to make that determination has been “committed exclusively” to the DEC by the Legislature]). The owner “shall continue” to receive the tax benefits of forest land certification thereafter “upon receipt by the assessor of a certified commitment” each year, “so long as the certification of the eligible tract shall not be revoked by” the DEC (RPTL 480-a [3] [b]).

The tax savings under RPTL 480-a are significant. An “eligible tract” is exempt from taxation “to the extent of eighty per centum of the assessed valuation” of the land (RPTL 480-a [4] [a]). However, if owners of certified forest land cease to abide by their 10-year “commitment” they are penalized significantly (see RPTL 480-a [7]). If the entire parcel certified as forest land is no longer used as such, the tax penalty is

“computed by multiplying by two and one-half the amount of taxes that would have been levied on the forest land exemption entered on the assessment roll ... for the current year and any prior years in which such an exemption was granted . . . not to exceed a total of ten years” (RPTL 480-a [7] [d]).

If only a portion of the parcel of certified forest land ceases to be used as such, the penalty “shall be twice the amount determined under” RPTL 480-a (7) (d), though “only that portion of the tract that was actually converted to a use that precludes management of the land for forest crop production shall be used as the basis for determining the penalty” (RPTL 480-a [7] [e]).

The Legislature sought to enact RPTL 480-a in 1974 in an effort to preserve New York’s forest land and to make the management of forest land more economical for property owners (see L 1974, ch 814; Matter of Honeoye Cent. School Dist. v Berle, 72 AD2d 25, 29-31 [4th Dept 1979], affd 51 NY2d 970 [1980]). The Legislature found that “lands presently devoted to growth of forest crops are often assessed at a level which renders continued dedication to such use uneconomical” (L 1974, ch 814, § 1). Because it believed that land “devoted to growth of forest products should be assessed at a level which recognizes this use rather than at a level reflecting devotion of the land to another purpose,” the Legislature enacted RPTL 480-a “to provide a means by which present and future forest lands may be protected and enhanced as a viable segment of the state’s economy and as an economic and environmental resource of major importance” (id,.).

The effective date of RPTL 480-a was delayed, however (see L 1975, ch 68; L 1976, ch 422), and, between 1974 and 1976, the Legislature amended the statute. The most significant changes relevant to this appeal were that the 1974 version of RPTL 480-a included a detailed assessment scheme that was abandoned in the 1976 version, and the 1974 law did not include the 80% tax exemption provided in the 1976 law (compare L 1974, ch 814 and L 1976, ch 526). These changes are retained in the statutory scheme that is in effect today.

The Town points to this legislative history and argues that the Legislature’s decision to remove the assessment scheme from the 1976 law suggests that the Legislature intended forest land to be assessed not as forest land but as vacant land; that is, land that is unimproved such that it may be assessed for tax purposes based on its “highest and best” use. The Town urges that to consider forest land certified as such under RPTL 480-a as land being used as forest land for tax assessment purposes results in an effective “double dip” benefit for taxpayers that the Legislature did not intend, as the 80% tax exemption will apply to a discounted assessment value if the land is assessed as forest land.

We do not read the legislative history in the manner the Town suggests. The changes to RPTL 480-a between 1974 and 1976

do not reveal an altered purpose in enacting the statute; the purpose of protecting forest land and making the production of timber in New York a more economical enterprise remained the same. The 1974 version of RPTL 480-a, the 1976 version of the statute, and the current version of the law in force today all define “forest land” as land that is “devoted to and suitable for forest crop production” (RPTL 480-a [1] [f]), and it is clear that the Legislature considered land “devoted to” forest crop production to be land that was used for that purpose (L 1974, ch 814, § 1 [the “legislature hereby finds and declares that lands presently devoted to growth of forest crops are often assessed at a level which renders continued dedication to such use uneconomical” (emphasis added)]). Moreover, forest land is recognized not only by the statute but also by relevant administrative authority as an established category of use, not some sort of taxpayer charade to reduce the assessed value of land. The Office of Real Property Services publishes an Assessor’s Manual which has included classification 912 for forest land eligible for RPTL 480-a treatment (see generally Matter of Gordon v Town of Esopus, 31 AD3d 981 [3d Dept 2006]).

While it is certainly true that “an exemption statute is to be construed strictly against those arguing for nontaxability,” a tax exemption statute’s “interpretation should not be so narrow and literal as to defeat its settled purpose” (People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350, 358 [I960]). In line with the clear legislative purpose in enacting RPTL 480-a, we conclude that land certified by the DEC as forest land pursuant to RPTL 480-a is used as forest land and must be assessed under RPTL 302 (1) as such for real property tax purposes.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Smith, J. (dissenting).

The majority opinion contains a concise and fair summary of the argument I find dispositive in this case:

“The Town points to this legislative history and argues that the Legislature’s decision to remove the assessment scheme from the 1976 law suggests that the Legislature intended forest land to be assessed not as forest land but as vacant land; that is, land that is unimproved such that it may be assessed for tax purposes based on its ‘highest and best’ use. The Town urges that to consider forest land certified as such under RPTL 480-a as land being used as forest land for tax assessment purposes results in an effective ‘double dip’ benefit for taxpayers that the Legislature did not intend, as the 80% tax exemption will apply to a discounted assessment value if the land is assessed as forest land.” (Majority op at 89.)

This argument does not persuade the majority, but it does persuade me.

I acknowledge that if we simply apply general valuation principles to this land—without considering the specific problem to which the Legislature was responding in RPTL 480-a, and the nature of the response it eventually chose—it should be valued as forest land, not vacant land. As a general rule, the purpose of valuation is to determine the fair market value of the property—what a willing buyer would pay a willing seller (see New York State Office of Real Property Services, Uniform Assessment Standards 1.3 [“Value means market value—the price a willing buyer would pay a willing seller in an arm’s-length transaction”]). Here, the fair market value is obviously impaired by the fact that petitioners have committed themselves to use the property as forest land, and could not escape that commitment without a significant tax penalty. Thus, in principle, petitioners’ appraiser was correct in saying that only sales of property subject to a similar impairment should count as “comparable” for valuation purposes.

But the picture changes when we examine the history of the statute. It seems that, in 1974, the Legislature was troubled by the practice of taxing authorities in doing essentially what the Town of Esopus proposes to do here—valuing forest land as if it were vacant land, thus producing a relatively high value. The legislation that enacted the original version of RPTL 480-a contained a section entitled “Legislative findings and declaration of purpose,” which said:

“The legislature hereby finds and declares that lands presently devoted to growth of forest crops are often assessed at a level which renders continued dedication to such use uneconomical . . . [U]se of land for timber production is becoming increasingly economically unfeasible due to assessment practices which do not take into account the present use of the property being assessed. Lands devoted to growth of forest products should be assessed at a level which recognizes this use rather than at a level reflecting devotion of the land to another purpose.” (L 1974, ch 814, § 1.)

Thus the Legislature’s purpose in 1974 was to require a valuation approach similar to the one now required by the majority opinion—valuing the land as forest land, not vacant land. The 1974 version of RPTL 480-a goes on for some pages to prescribe a rather complicated valuation procedure for lands certified as forest lands. Perhaps it was too complicated; in any event, as the majority mentions (majority op at 89), the Legislature repeatedly postponed the effective date of the 1974 legislation, and then took a very different approach in 1976: It threw out all the detailed provisions for valuing forest land, and simply gave forest land an 80% tax exemption, reflected in today’s version of RPTL 480-a.

It seems obvious that the 1976 Legislature substituted the 80% exemption for what it had, in 1974, considered a fairer assessment procedure. But that substitution does not make sense unless the Legislature assumed that the valuations, before being reduced by the statutory exemption, would be the higher ones that made the Legislature act in the first place. If the Legislature expected forest land to be valued at the lower levels consistent with a restriction of land to forest use, why not base the tax on the whole of the lower value? Why tax only one fifth of it?

Finding no answer to this question, I conclude that the legislative purpose is best served by allowing the Town to value the land as if it were vacant, and then to divide the resulting valuation by five. To divide the lower value by five is effectively to give the taxpayers twice what the Legislature intended to give them only once.

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

Order reversed, etc.