author: Rosenblatt, J.

text:
    [803 NE2d 757, 771 NYS2d 484]
    Rupert Blake et al., Appellants, v Neighborhood Housing Services of New York City, Inc., Respondent.
    Argued November 19, 2003;
    decided December 23, 2003

      POINTS OF COUNSEL

      Kelner & Kelner, New York City (Gail S. Kelner of counsel), for appellants.
    I. Sole proximate cause is not a defense to the imposition of liability under Labor Law § 240 (1) arising out of defendant’s violation of its statutory obligation to properly place and secure the ladder. (Weininger v Hagedorn & Co., 91 NY2d 958; Carlos v W.H.P. 19, 280 AD2d 419; Kijak v 330 Madison Ave. Corp., 251 AD2d 152; McMahon v 42nd St. Dev. Project, 188 Misc 2d 25; Secord v Willow Ridge Stables, 179 Misc 2d 366; Bland v Manocherian, 66 NY2d 452; MacNair v Salamon, 199 AD2d 170; Rocovich v Consolidated Edison Co., 78 NY2d 509; Quigley v Thatcher, 207 NY 66; Gordon v Eastern Ry. Supply, 82 NY2d 555.) II. Defendant failed to fulfill its statutory obligation under Labor Law § 240 (1). (Brown v Sagamore Hotel, 184 AD2d 47; Hauff v CLXXXII Via Magna Corp., 118 AD2d 485; Gordon v Eastern Ry. Supply, 82 NY2d 555; Guillory v Nautilus Real Estate, 208 AD2d 336; Acosta v Bentley Apts., 298 AD2d 124; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Franklin v Dormitory Auth., 291 AD2d 854; Lacey v Turner Constr. Co., 275 AD2d 734; Cordero v Kaiser Org., 288 AD2d 424.) III. Comparative negligence is not a defense to absolute liability under Labor Law § 240 (1). (Stolt v General Foods Corp., 81 NY2d 918; Hagins v State of New York, 81 NY2d 921; Gordon v Eastern Ry. Supply, 82 NY2d 555; Bland v Manocherian, 66 NY2d 452; Panek v County of Albany, 99 NY2d 452.)

      Carol R. Finocchio, New York City, Lisa M. Comeau and Law Office of Patrick Colligan for respondent.
    I. Plaintiffs’ motion for a directed verdict was properly denied, and plaintiffs were not entitled to judgment as a matter of law merely because the top portion of the extension ladder retracted. As such, the issues of proper protection and proximate cause were for the jury, which, given the evidence before it, was entitled to resolve the issue in Neighborhood Housing Services of New York City’s favor. (Blum v Fresh Grown Preserve Corp., 292 NY 241; Cross v Finch Pruyn & Co., 281 AD2d 836; Amo v Little Rapids Corp., 268 AD2d 712; Landry v Di Sarro Constr. Co., 149 AD2d 859.) II. Alternatively, the judgment should be affirmed because plaintiffs’ proof was legally insufficient to establish that Neighborhood Housing Services of New York City was the agent for the owner. (Matter of Delta Air Lines v New York State Div. of Human Rights, 90 NY2d 882; Parochial Bus Sys. v Board of Educ. of City of N.Y, 60 NY2d 539; Russin v Picciano & Son, 54 NY2d 311; Campanella v St. Luke’s Roosevelt Hosp., 247 AD2d 294; Kerr v Rochester Gas & Elec. Corp., 113 AD2d 412; Kwoksze Wong v New York Times Co., 297 AD2d 544; Musselman v Gaetano Constr. Corp., 285 AD2d 868; Everitt v Nozkowski, 285 AD2d 442; Serpe v Eyris Prods., 243 AD2d 375; Sikorski v Springbrook Fire Dist., 225 AD2d 1041.)

      Andrew Zajac, Jericho, Michael J. Caulfield, Dawn C. DeSimone, Elizabeth Anne Bannon and Kathleen D. Foley for Defense Association of New York City, Inc., amicus curiae.
    I. Plaintiff is not entitled to have the affirmed findings set aside and judgment as a matter of law entered in his favor. (Narducci v Manhasset Bay Assoc., 96 NY2d 259; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361; Brown v Christopher St. Owners Corp., 87 NY2d 938; Smith v Shell Oil Co., 85 NY2d 1000; Abbatiello v Lancaster Studio Assoc., 307 AD2d 788; Rogala v Van Bourgondien, 263 AD2d 535; Rocovich v Consolidated Edison Co., 78 NY2d 509; Jastrzebski v North Shore School Dist., 223 AD2d 677, 88 NY2d 946; Mayancela v Almat Realty Dev., 303 AD2d 207; Lozada v State of New York, 267 AD2d 215.) II. Neighborhood Housing Services of New York City is not liable because there was no proof that it acted as an agent for the owner of the premises, nor did it control the means and methods of plaintiffs work. (Russin v Picciano & Son, 54 NY2d 311; Sikorski v Springbrook Fire Dist., 225 AD2d 1041.)

      Sullivan Papain Block McGrath & Cannavo, New York City (Brian J. Shoot of counsel), and Nancy Kramer for New York State Trial Lawyers Association, amicus curiae.
    Where a statutorily listed device caused injury because it had not been “constructed, placed and operated as to give proper protection,” the violation of Labor Law § 240 (1) cannot be excused simply because it was plaintiff who negligently chose, placed, or set up the device in issue. (Weininger v Hagedorn & Co., 91 NY2d 958; Gordon v Eastern Ry. Supply, 82 NY2d 555; Panek v County of Albany, 99 NY2d 452; Rocovich v Consolidated Edison Co., 78 NY2d 509; Zimmer v Chemung Performing Arts, 65 NY2d 513; Haimes v New York Tel. Co., 46 NY2d 132; Bland v Manocherian, 66 NY2d 452; Klein v City of New York, 89 NY2d 833; Corrado v Allied Bldrs., 186 Misc 2d 780; Secord v Willow Ridge Stables, 179 Misc 2d 366.)
   OPINION OF THE COURT

Rosenblatt, J.

We are presented with the question whether a plaintiff who was injured while using a ladder may prevail in a Labor Law § 240 (1) action even when a jury finds that the ladder was so constructed and operated as to give him proper protection and he was the sole cause of his injury. In deciding the appeal, it is necessary for us to address the concept of strict (or absolute) liability and the predicates for its application under Labor Law § 240 (1).

At the time of the injury, plaintiff operated his own contracting company, and was working alone on a renovation job at a two-family house in the Bronx. Defendant Neighborhood Housing Services of New York City (NHS), a not-for-profit lender, provided low-interest financing to facilitate the project. Acting on the homeowner’s application, NHS dispatched a rehabilitation specialist to the premises to assess the scope of the work and the amount of the loan. NHS prepared a work estimate and gave the homeowner a list of contractors, from which she chose plaintiff. At the job site, plaintiff set up an extension ladder, which he owned and used frequently. He acknowledged that the ladder was steady, had rubber shoes and was in proper working condition. When plaintiff began scraping rust from a window, however, the upper portion of the ladder retracted and he suffered an ankle injury.

Plaintiff sued the homeowner and NHS alleging a violation of Labor Law § 240 (1). All parties moved for summary judgment. Plaintiff contended that NHS was strictly liable as a statutory agent under the section for having failed to provide a proper workplace and mandated safety equipment. In his deposition, however, plaintiff stated that the ladder was securely placed and not broken or defective. He also said there was no need to have anyone hold the ladder while he was using or ascending it. NHS cross-moved, asserting it could not be liable because it was not a general contractor or agent within the meaning of the Labor Law and did not direct, control or supervise the method or manner of plaintiffs work. It challenged plaintiffs section 240 (1) claim as conclusory, citing the lack of any evidence as to the alleged deficiency of the ladder or work site. NHS also claimed that plaintiff’s actions alone caused the injury. Owing to the statutory exclusion, Supreme Court granted the homeowner’s motion but denied NHS summary judgment, concluding there were questions of fact as to whether NHS directed or controlled the work. The court also denied plaintiffs motion as to liability under Labor Law § 240 (1). The Appellate Division affirmed (262 AD2d 244 [1st Dept 1999]).

At trial, plaintiff again conceded that he could not identify a defect in the ladder, that it was stable and there was no reason to have it steadied during use. He also revealed that he was not sure if he had locked the extension clips in place before ascending the rungs. At the close of the case, the court asked the jury to indicate on the verdict sheet whether NHS had “the authority to direct, supervise and control Mr. Blake’s work” at the residence. The jury answered yes. In response to the second inquiry (“Was the ladder being used by plaintiff Rupert Blake so constructed, operated as to give proper protection to plaintiff?”), the jury again said yes, leading to the inescapable conclusion that the accident happened not because the ladder malfunctioned or was defective or improperly placed, but solely because of plaintiffs own negligence in the way he used it.

The trial court denied plaintiffs motion to vacate the jury’s verdict and direct one in his favor. The Appellate Division affirmed, stating that “a factual issue was posed as to whether plaintiffs injury was caused by some inadequacy of the ladder or was solely attributable to the manner in which plaintiff used the ladder” and that there were no grounds to disturb the jury’s factual determinations (301 AD2d 366, 367 [2003]). We affirm.

Plaintiff claims that Labor Law § 240 (1) is a strict (or absolute) liability statute and that the court should have set aside the jury’s verdict. In reviewing our scaffold law jurisprudence, several themes are relevant to this case, including the statute’s history and purpose and plaintiffs claims relating to strict or absolute liability. We also address the issue of plaintiffs actions being the sole proximate cause of the accident and whether NHS can be held liable as an agent under the statute.

A. THE HISTORY AND PURPOSE OF LABOR LAW § 240 (1)

The first scaffold law, an ancestor of our Labor Law § 240 (1), was enacted 118 years ago, in response to the Legislature’s concern over unsafe conditions that beset employees who worked at heights (see L 1885, ch 314). In promulgating the statute, the lawmakers reacted to widespread accounts of deaths and injuries in the construction trades. Newspapers carried articles attesting to the frequency of injuries caused by rickety and defective scaffolds. In 1885 alone, there were several articles detailing both the extent of these accidents and the legislation directed at the problem.

The lawmakers enacted the 1885 statute when personal injury suits of this type were based on common-law duties of a master to a servant (see e.g. Vosburgh v Lake Shore & Mich. S. Ry. Co., 94 NY 374 [1884]; Devlin v Smith, 89 NY 470 [1882]). For that reason, the Legislature aimed this first scaffold law (“an act for the protection of life and limb”) at “[a] person employing or directing another.” (L 1885, ch 314, § 1.) Although the statute’s wording has evolved, the original, core language is still with us. The Legislature eventually added other devices, but the first statute contained the very words “scaffolding, hoists, stays, ladders” still found in Labor Law § 240 (1). Moreover, the law covered, as it does today, “erection, repairing, altering or painting” of structures. Most tellingly, the lawmakers fashioned this pioneer legislation to “give proper protection” to the worker. Those words are at the heart of the statute and have endured through every amendment.

Even though the first scaffold law exposed violators to civil and criminal responsibility, it fell short of the mark because the employer could escape liability by blaming the employee’s coworkers (see e.g. Kimmer v Weber, 151 NY 417, 421 [1897]; Butler v Townsend, 126 NY 105, 111 [1891]). This was changed with an 1897 amendment to the scaffold law, as part of a larger Labor Law initiative dealing with factories, bakeries, tenement-made articles, and the employment of women and children (see L 1897, ch 415, § 18). The amendment did two things: it placed the onus directly on the employer, and it prompted our Court to interpret the law as creating a presumption of employer liability when a scaffold (or ladder) collapses. We recognized that sound scaffolds and ladders do not simply break apart (see Stewart v Ferguson, 164 NY 553 [1900]). The Legislature looked to employers (and later, contractors and owners) as the entities best able to control the workplace and provide for its safety, casting them in liability for their failure to obey the law. The objective was—and still is—to force owners and contractors to provide a safe workplace, under pain of damages.

The 1897 statute was a giant step forward, but it still left employers free to invoke the plaintiffs contributory negligence (see Gombert v McKay, 201 NY 27, 31 [1911]; see also L 1910, ch 352). Indeed, throughout all the scaffold law’s amendments, including the present section 240 (1), the statutory language has never explicitly barred contributory negligence as a defense. Our Court, however, did so in 1948, reasoning that the statute should be interpreted that way if it is to meet its objective (see Koenig v Patrick Constr. Corp., 298 NY 313, 316-317 [1948]). Since then we have steadfastly held that contributory negligence will not exonerate a defendant who has violated the statute and proximately caused a plaintiff’s injury (see e.g. Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521 [1985]; Stolt v General Foods Corp., 81 NY2d 918 [1993]). At no time, however, did the Court or the Legislature ever suggest that a defendant should be treated as an insurer after having furnished a safe workplace. The point of Labor Law § 240 (1) is to compel contractors and owners to comply with the law, not to penalize them when they have done so.

B. STRICT (OR ABSOLUTE) LIABILITY

Plaintiff asserts, in essence, that despite the jury’s findings he is entitled to recover because Labor Law § 240 (1) provides for strict (or absolute) liability. In addressing this contention, we note that the words strict or absolute liability do not appear in Labor Law § 240 (1) or any of its predecessors. Indeed, it was the Court—and not the Legislature—that began to use this terminology in 1923 (under an earlier version of the statute [see L 1921, ch 50]), holding that employers had an “absolute duty” to furnish safe scaffolding and would be liable when they failed to do so and injury resulted (Maleeny v Standard Shipbuilding Corp., 237 NY 250, 253 [1923]; see also Amberg v Kinley, 214 NY 531, 545 [1915] [Collin, J., dissenting]). We used a similar phrase 25 years later in Koenig (298 NY at 318 [a duty “absolutely imposed”]). In Connors v Boorstein (4 NY2d 172, 175 [1958]) the Court, for the first time, worded the concept as “absolute liability” under section 240 (1). We did so again in Major v Waverly & Ogden (7 NY2d 332, 336 [1960] [“absolute statutory liability”]) and Duda v Rouse Constr. Corp. (32 NY2d 405, 408 [1973] [“absolute liability”]).

The Court has also described liability under Labor Law § 240 (1) as “absolute” in the sense that owners or contractors not actually involved in construction can be held liable (see Haimes v New York Tel. Co., 46 NY2d 132, 136 [1978]), regardless of whether they exercise supervision or control over the work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). Intending the same meaning as absolute liability in Labor Law § 240 (1) contexts, the Court in 1990 introduced the term “strict liability” (Cannon v Putnam, 76 NY2d 644, 649 [1990]) and from that point on used the terms interchangeably.

Throughout our section 240 (1) jurisprudence we have stressed two points in applying the doctrine of strict (or absolute) liability. First, that liability is contingent on a statutory violation and proximate cause. As we said in Duda (32 NY2d at 410), “[violation of the statute alone is not enough; plaintiff [is] obligated to show that the violation was a contributing cause of his fall,” and second, that when those elements are established, contributory negligence cannot defeat the plaintiffs claim. Section 240 (1) is, therefore, an exception to CPLR 1411, which recognizes contributory negligence as a defense in personal injury actions (see Mullen v Zoebe, Inc., 86 NY2d 135, 143 [1995]; Bland v Manocherian, 66 NY2d 452, 461 [1985]).

It is imperative, therefore, to recognize that the phrase “strict (or absolute) liability” in the Labor Law § 240 (1) context is different from the use of the term elsewhere. Often, the term means “liability without fault” (see generally 3 Harper, James and Gray, Torts § 14.1 et seq. [2d ed 1986]), as where a person is held automatically liable for causing injury even though the activity violates no law and is carried out with the utmost care. Illustrations include blasting activities (see Spano v Perini Corp., 25 NY2d 11, 15 [1969]), keeping wild animals (see Arbegast v Board of Educ., 65 NY2d 161, 164-165 [1985]) and discharging petroleum (see Navigation Law § 181 [1]; White v Long, 85 NY2d 564, 568 [1995]; State of New York v Green, 96 NY2d 403, 405 [2001]; see generally Prosser and Keeton, Torts § 78 [5th ed 1984]). We also refer to strict liability when discussing products liability arising out of a defective design or the failure to warn (see Sukljian v Charles Ross & Son Co., 69 NY2d 89, 94 [1986]; Sage v Fairchild-Swearingen Corp., 70 NY2d 579, 585 [1987]). In these instances, manufacturers of defective products may be held “strictly liable” for injury caused by those products, regardless of privity, foreseeability or reasonable care (see Sprung v MTR Ravensburg, 99 NY2d 468, 472 [2003]).

Courts also speak of strict liability in commercial settings, as where the Uniform Commercial Code fastens “strict liability” on a bank that charges against its customer’s account any “item” that is not “properly payable” (UCC 4-401 [1]; Monreal v Fleet Bank, 95 NY2d 204, 207 [2000]).

Given the varying meanings of strict (or absolute) liability in these different settings, it is not surprising that the concept has generated a good deal of litigation under Labor Law § 240 (1). The terms may have given rise to the mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party. That is not the law, and we have never held or suggested otherwise. As we stated in Narducci v Manhasset Bay Assoc. (96 NY2d 259, 267 [2001]), “[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1).” Also, the Appellate Division had recognized as much in Beesimer v Albany Ave./Rte. 9 Realty (216 AD2d 853, 854 [3d Dept 1995]), stating: “the mere fact that [a plaintiff] fell off the scaffolding surface is insufficient, in and of itself, to establish that the device did not provide proper protection” (see also Alava v City of New York, 246 AD2d 614, 615 [2d Dept 1998] [“a fall from a scaffold does not establish, in and of itself, that proper protection was not provided”]).

Put differently, an accident alone does not establish a Labor Law § 240 (1) violation or causation. This Court has repeatedly explained that “strict” or “absolute” liability is necessarily contingent on a violation of section 240 (1). In Melber v 6333 Main St. (91 NY2d 759, 762 [1998]), we noted that “we have held that the statute establishes absolute liability for a breach which proximately causes an injury.” In Zimmer (65 NY2d at 522), we found that “a violation of section 240 (1) . . . creates absolute liability” and that “[t]he failure to provide any safety devices is such a violation.” Moreover, causation must also be established. As the Court held in Duda (32 NY2d at 410 [1973]), the “plaintiff was obligated to show that the violation [of section 240 (1)] was a contributing cause of his fall.” Here, plaintiff has shown no violation of Labor Law § 240 (1).

In support of his claim, plaintiff argues that comparative negligence is not a defense to absolute liability under the statute. This is true (see Raquet v Braun, 90 NY2d 177, 184 [1997]; Bland v Manocherian, 66 NY2d 452, 461 [1985]). But we are not dealing here with comparative fault, by which a culpable defendant is able to reduce its responsibility upon a finding that the plaintiff was also at fault. That would be impermissible under section 240 (1). Here, there is no comparative culpability. As the jury implicitly found, the fault was entirely plaintiffs. The ladder afforded him proper protection. Plaintiffs conduct (here, his negligence) was the sole proximate cause of the accident.

C. PLAINTIFF’S CONDUCT AS THE ACCIDENT’S SOLE PROXIMATE CAUSE

Plaintiff argues that he is entitled to recover in the face of a record that shows no violation and reveals that he was entirely responsible for his own injuries. There is no basis for this argument. Even when a worker is not “recalcitrant,” we have held that there can be no liability under section 240 (1) when there is no violation and the worker’s actions (here, his negligence) are the “sole proximate cause” of the accident. Extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed.

In Weininger v Hagedorn & Co. (91 NY2d 958, 960 [1998]), we held that “Supreme Court erred ... in directing a verdict in favor of plaintiff, at the close of his own case, on the issue of proximate cause” where “a reasonable jury could have concluded that plaintiff’s actions were the sole proximate cause of his injuries, and consequently that liability under [section] 240 (1) did not attach.” Contrary to plaintiff’s claim, the Appellate Division has held (both before and after Weininger) that a defendant is not liable under Labor Law § 240 (1) where there is no evidence of violation and the proof reveals that the plaintiffs own negligence was the sole proximate cause of the accident. Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiffs injury) to occupy the same ground as a plaintiffs sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation. That is what we held in Weininger, a holding the Appellate Division has consistently understood and applied. The Pattern Jury Instructions reflect a like-minded interpretation of Weininger (see PJI3d 2:217 [2003]). We reaffirm that holding today.

As in Weininger, the record now before us fully supports the jury’s findings that there was no statutory violation and that plaintiff alone, by negligently using the ladder with the extension clips unlocked, was fully responsible for his injury.

Plaintiff relies heavily on Bland v Manocherian (66 NY2d at 457). There, the jury found that the ladder in question was not “placed so as to give proper protection to the plaintiff’ and that “improper placement of the ladder [was] a proximate cause of the accident” (id.). We held that “[t]he jury was clearly entitled to find that, under the circumstances, defendants failed to satisfy the responsibilities imposed by section 240 (1) in that they had not ‘erected’ or ‘placed’ the ladder from which plaintiff fell in such a manner, or with such safeguards, as necessary to provide plaintiff with ‘proper protection’ while he was working on defendants’ building” (id. at 460).

In reaching this conclusion, we noted the nature of the work the plaintiff had to perform while on the ladder and the conditions at the work site. “[P]ressure would have to be applied to the sashes and, at the same time, the windows forcibly twisted loose, all while plaintiff was standing on a ladder” (id.). Further, and also in contrast to the case before us, there was testimony that “the floor upon which the ladder was placed was bare, highly polished and shiny” and that “no safety equipment, safety belts, hard hats, scaffolding or anything else, was used to protect plaintiff from falling through the fourth floor window or to secure the ladder to insure that it remained steady and erect while plaintiff was applying pressure to that window” (id.).

Bland, then, does not support plaintiffs position or stand for the proposition that regardless of the facts every ladder injury leads ineluctably to liability under section 240 (1). In Bland, there were affirmed findings of fact, supported by the evidence, from which the jury could find that defendants had failed to satisfy their section 240 (1) responsibilities. Here, in contrast, the affirmed findings of fact were supported by the record, enabling the jury to conclude that there was no violation of the Labor Law. The record in Bland fairly suggested that better safety devices could have prevented the accident. In our case, the ladder was undisputedly in proper working order, and no further devices were necessary.

To be sure, we have long-held that “this statute is one for the protection of work[ers] from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed” (Quigley v Thatcher, 207 NY 66, 68 [1912]). But to impose liability for a ladder injury even though all the proper safety precautions were met would not further the Legislature’s purpose. It would, instead, be a sweeping and dramatic turnabout that the statute neither permits nor contemplates. As we recognized in a related context, the language of Labor Law § 240 (1) “must not be strained” to accomplish what the Legislature did not intend (Martinez v City of New York, 93 NY2d 322, 326 [1999]). If liability were to attach even though the proper safety devices were entirely sound and in place, the Legislature would have simply said so, or made owners and contractors into insurers. Instead, the Legislature has enacted no-fault workers’ compensation to address workplace injuries where, as here, the worker is entirely at fault and there has been no Labor Law violation shown.

D. AGENCY UNDER SECTION 240 (1)

Lastly, this case presents the question whether defendant NHS could be liable as an agent of the owner under Labor Law § 240 (1). That section imposes liability only on contractors, owners or their agents. NHS is clearly not a contractor or an owner. An agency relationship for purposes of section 240 (1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job. Where responsibility for the activity surrounding an injury was not delegated to the third party, there is no agency liability under the statute (Russin v Picciano & Son, 54 NY2d 311, 318 [1981]).

NHS lacked the requisite indicia of agency. Although defendant here coordinated home repair work, it did not involve itself with the details of how individual contractors would perform their jobs. Instead, NHS acted as a lender: it is a nonprofit organization that provides low-interest loans. The homeowner retained primary control over decisions on how the renovation project would proceed. NHS did not supervise the contractor; it never instructed workers on how to undertake repairs, and it took only a de minimis role in ensuring that the contractor would complete the financed repairs.

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

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

Order affirmed, with costs.

      . In 1980, the Legislature amended Labor Law § 240 (1) by excepting “owners of one and two-family dwellings who contract for but do not direct or control the work” (L 1980, ch 670, § 1; see generally Bartoo v Buell, 87 NY2d 362 [1996]; Mandelos v Karavasidis, 86 NY2d 767 [1995]).

      . See generally Provisions of the Bills which have Now Become Laws, New York Times, May 26, 1885, at 5; Under the New Law, New York Times, July 2, 1885, at 8; The Employer Held Responsible, New York Times, July 7, 1885, at 8; Three Men Killed, New York Times, July 15, 1885, at 3; Carried Down with the Scaffold, New York Times, Sept. 1, 1885, at 8; Maimed by a Breaking Scaffold, New York Times, Nov. 29, 1885, at 3.

      . See L 1921, ch 50, § 240.

        . In the interim, the Legislature enacted additional requirements for scaffolds more than 20 feet from the ground (see L 1891, ch 214), and authorized police to inspect scaffolding, with misdemeanor consequences for violating the scaffold law (see L 1892, ch 517).

      . In 1969, the Legislature amended section 240 (1) to place the responsibility on “[a]ll contractors and owners and their agents” in place of “[a] person employing or directing another to perform labor of any kind” (L 1969, ch 1108, § 1).

      . Later reconstituted in Laws of 1909 (ch 36), as amended by Laws of 1911 (ch 693); and as Labor Law § 240 (1) by virtue of Laws of 1921 (ch 50), as amended by Laws of 1947 (ch 683).

      . See also Panek v County of Albany (99 NY2d 452, 457 [2003] [“the section imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty that proximately causes a plaintiffs injury”]).

      . In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, we have (ever since Stewart v Ferguson, 164 NY 553 [1900], supra) continued to aid plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection. See Panek v County of Albany (99 NY2d 452, 458 [2003] [summary judgment appropriate for the plaintiff where it was uncontroverted that a ladder collapsed beneath him, causing the fall]); Styer v Walter Vita Constr. (174 AD2d 662 [2d Dept 1991]); Olson v Pyramid Crossgates Co. (291 AD2d 706 [3d Dept 2002]). Once the plaintiff makes a prima facie showing the burden then shifts to the defendant, who may defeat plaintiffs motion for summary judgment only if there is a plausible view of the evidence—enough to raise a fact question— that there was no statutory violation and that plaintiffs own acts or omissions were the sole cause of the accident. If defendant’s assertions in response fail to raise a fact question as to these issues, the plaintiff must be accorded summary judgment (see Klein v City of New York, 89 NY2d 833, 835 [1996]). On the other hand, defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by plaintiffs conduct (see e.g. Stark v Eastman Kodak Co., 256 AD2d 1134 [4th Dept 1998]; Custer v Cortland Hous. Auth., 266 AD2d 619, 621 [3d Dept 1999]). Given the procedural posture of the case before us, we address neither the propriety of Supreme Court’s denial of plaintiffs motion for summary judgment nor whether defendant should have been granted summary judgment or a directed verdict.

      . Labor Law § 240 (1) does not extend to a “recalcitrant worker,” meaning one whose refusal to use available safety devices results in injury (see Hagins v State of New York, 81 NY2d 921, 923 [1993]). Plaintiff was not a recalcitrant worker.

      . See Meade v Rock-McGraw, Inc. (307 AD2d 156, 159 [1st Dept 2003] [“That the ladder was inadequately secured was due to plaintiffs improper use of it, which would not give rise to a Labor Law violation”]); Heffernan v Bais Corp. (294 AD2d 401, 403 [2d Dept 2002] [defendant raised a question of fact as to whether scaffold failure resulted solely from plaintiffs negligence]); Musselman v Charles A. Gaetano Constr. Corp. (277 AD2d 691, 692 [3d Dept 2000] [“although contributory negligence is not a defense to a valid Labor Law § 240 (1) claim . . . liability will not attach if the worker’s action were the sole proximate cause of his or her injuries”]); Gomes v State of New York (272 AD2d 440 [2d Dept 2000] [affirming Court of Claims’ dismissal after crediting the State’s expert testimony that plaintiffs misuse of an extension ladder was responsible for his accident in which his arm became caught between the rungs when the ladder retracted downward]); Bahrman v Holtsville Fire Dist. (270 AD2d 438, 439 [2d Dept 2000] [question of fact as to whether plaintiffs fall occurred due to his own misuse of a safety device and whether such conduct was the sole proximate cause of his injuries]); Stark v Eastman Kodak Co. (256 AD2d 1134 [4th Dept 1998] [where ladder was not defective and did not move, plaintiffs actions were the sole proximate cause of his injury thus making summary judgment appropriate in favor of defendant, not plaintiff]); Vencebi v Waldorf Astoria Hotel Corp. (143 AD2d 1004, 1005 [2d Dept 1988] [jury question whether accident occurred because scaffold moved or because of plaintiffs method of climbing onto it]).

      . “If you conclude that the plaintiffs action was the only substantial factor in bringing about the injury, you will find for the defendant on [section 240 (1) liability].”


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [803 NE2d 766, 771 NYS2d 493]
    Jon H. Hammer, Appellant, v American Kennel Club et al., Respondents.
    Argued November 19, 2003;
    decided December 23, 2003

      POINTS OF COUNSEL

      Joseph P. Foley, Irvington, Jon H. Hammer, New York City, and Leslie K. Anker for appellant.
    I. The Appellate Division erred in holding that plaintiff could not maintain a private cause of action based upon section 353 of the Agriculture and Markets Law. (Abounader v Strohmeyer & Arpe Co., 243 NY 458; Carrier v Salvation Army, 88 NY2d 298; Stoganovic v Dinolfo, 92 AD2d 729; Larson v Albany Med. Ctr., 173 Misc 2d 508, 252 AD2d 936; Hoxie’s Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207; Sheehy v Big Flats Community Day, 73 NY2d 629.) II. The Appellate Division erred in holding plaintiff was not entitled to declaratory judgment and injunctive relief against these defendants. (Matter of Saunders v State of New York, 129 Misc 2d 45; Dun & Bradstreet v City of New York, 276 NY 198; Aerated Prods. Co. v Godfrey, 263 App Div 685, 290 NY 92; New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272; Bunis v Conway, 17 AD2d 207, 1036, 12 NY2d 645; De Veau v Braisted, 5 AD2d 603, 5 NY2d 236, 363 US 144.) III. Canine tail docking for cosmetic purposes is a clear violation of New York State criminal law. (People v Keyes, 75 NY2d 343; People v Voelker, 172 Misc 2d 564; Bunis v Conway, 17 AD2d 207.) IV The courts may intervene in the public procedure of a private not-for-profit monopoly enterprise. (Simons v Berry, 240 NY 463; Martin v PGA Tour, Inc., 994 F Supp 1242; Crouch v National Assn. for Stock Car Auto Racing, Inc., 845 F2d 397; Thompson v Knights of Maccabees, 189 NY 294; Steinberg v Goldstein, 51 Misc 2d 825, 27 AD2d 955.)

      Seward & Kissel, LLP, New York City {Dale C. Christensen, Jr., John J. Galban and Jonathan D. Matkowsky of counsel), for American Kennel Club, Inc., respondent.
    I. The Appellate Division correctly concluded that section 353 of the Agriculture and Markets Law does not expressly or impliedly authorize civil remedies for its alleged violation. (Carrier v Salvation Army, 88 NY2d 298; Stoganovic v Dinolfo, 92 AD2d 729, 61 NY2d 812; Larson v Albany Med. Ctr., 173 Misc 2d 508, 252 AD2d 936; Gomariz v Foote, Cone & Belding Communications, 228 AD2d 316; Hoxie’s Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207; Jones v Beame, 56 AD2d 778, 45 NY2d 402; Walz v Baum, 42 AD2d 643, 33 NY2d 517; People v Bunt, 118 Misc 2d 904; People v Arcidicono, 75 Misc 2d 294, 79 Misc 2d 242; Sheehy v Big Flats Community Day, 73 NY2d 629.) II. The Appellate Division correctly concluded that plaintiff failed to state a claim for unlawful discrimination or “arbitrary and capricious” conduct. (Dunn v Fishbein, 123 AD2d 659; Schneider v Ambach, 135 AD2d 284; McGovern v Local 456, Intl. Bhd. of Teamsters, Chauffeurs & Warehousemen & Helpers of Am., AFL-CIO, 107 F Supp 2d 311.) III. The Appellate Division correctly concluded that any declaration as to plaintiffs potential criminal liability under section 353 of the Agriculture and Markets Law would be purely advisory. (DiCanio v Incorporated Vil. of Nissequogue, 189 AD2d 223; Matter of Saunders v State of New York, 129 Misc 2d 45; Pokoik v Village of Ocean Beach, 184 AD2d 499; Reed v Littleton, 275 NY 150; New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272; Dun & Bradstreet v City of New York, 276 NY 198; People v Voelker, 172 Misc 2d 564; People v Bunt, 118 Misc 2d 904; Bunis v Conway, 17 AD2d 207; De Veau v Braisted, 5 AD2d 603, 5 NY2d 236.) IV Contrary to plaintiffs contention, the Appellate Division misinterpreted the rule of judicial noninterference in the internal governance of private organizations. (Lafond v Deems, 81 NY 507; Thornton v American Kennel Club, 182 AD2d 358; Matter of Gilheany v Civil Serv. Empls. Assn., 59 AD2d 834; New York State Soccer Football Assn. v United States Soccer Football Assn., 18 Misc 2d 112; Hatley v American Quarter Horse Assn., 552 F2d 646; Jackson v American Yorkshire Club, 340 F Supp 628; People v Rogers, 183 Misc 2d 538; Crouch v National Assn. for Stock Car Auto Racing, Inc., 845 F2d 397.) V The dissent erred in concluding that the amended complaint states a cause of action based on the alleged denial of privileges of membership in the American Kennel Club. (Thompson v Knights of Maccabees, 189 NY 294; Steinberg v Goldstein, 51 Misc 2d 825, 27 AD2d 955; Matter of Henry v American Kennel Club, 269 App Div 1; Simons v Berry, 240 NY 463; People v Voelker, 172 Misc 2d 564.)

      Hartman & Craven LLP New York City {Debra I. Resnick of counsel), for Brittany Club of America, respondent.
    I. The Appellate Division correctly determined that appellant has no standing or a right to a judicial declaration that tail docking violates section 353 of the Agriculture and Markets Law. (Stoganovic v Dinolfo, 92 AD2d 729, 61 NY2d 812; Mark G. v Sabol, 93 NY2d 710; Carrier v Salvation Army, 88 NY2d 298; Sheehy v Big Flats Community Day, 73 NY2d 629; Larson v Albany Med. Ctr., 173 Misc 2d 508, 252 AD2d 936; People v Arcidicono, 75 Misc 2d 294, 79 Misc 2d 242; Hoxie’s Painting Co. v Cato-

      Meridian Cent. School Dist., 76 NY2d 207; County of Albany v American Socy. for Prevention of Cruelty to Animals, 112 Misc 2d 829; Walz v Baum, 42 AD2d 643, 33 NY2d 517; Jones v Beame, 56 AD2d 778, 45 NY2d 402.) II. The Appellate Division correctly determined that appellant failed to state a claim that the Brittany tail standard is discriminatory or that respondent’s conduct was arbitrary and capricious. (Dunn v Fishbein, 123 AD2d 659; Mason v American Theatre Wing, 165 Misc 2d 432; Silver v Equitable Life Assur. Socy. of U.S., 168 AD2d 367; Bogan v New London Hous. Auth., 366 F Supp 861; Miramax Films Corp. v Motion Picture Assn. of Am., 148 Misc 2d 1.) III. The Appellate Division correctly concluded that any declaration as to potential criminal liability under section 353 of the Agriculture and Markets Law would be purely advisory. (DiCanio v Incorporated Vil. of Nissequogue, 189 AD2d 223; Pokoik v Village of Ocean Beach, 184 AD2d 499; Reed v Littleton, 275 NY 150; New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272; Dun & Bradstreet v City of New York, 276 NY 198; Bunis v Conway, 17 AD2d 207; De Veau v Braisted, 5 AD2d 603; People v Rogers, 183 Misc 2d 538; Jessup v American Kennel Club, Inc., 61 F Supp 2d 5, 531 US 1072; People v Voelker, 172 Misc 2d 564.) IV The court should not become involved in the internal governance of the American Brittany Club. (Freeman v Sports Car Club of Am., Inc., 51 F3d 1358; Matter of Gerard v Section III of N.Y. State Pub. Athletic Assn., 210 AD2d 938; Thornton v American Kennel Club, 182 AD2d 358; Matter of Caso v New York State Pub. High School Athletic Assn., 78 AD2d 41; Crouch v National Assn. for Stock Car Auto Racing, Inc., 845 F2d 397; Hatley v American Quarter Horse Assn., 552 F2d 646; Jackson v American Yorkshire Club, 340 F Supp 628; Martin v PGA Tour, Inc., 994 F Supp 1242, 532 US 661; Thompson v Knights of Maccabees, 189 NY 294; Steinberg v Goldstein, 51 Misc 2d 825, 27 AD2d 955.) V The amended complaint fails to state a cause of action based on the alleged denial of a privilege of membership in the American Brittany Club. (People v Voelker, 172 Misc 2d 564.)

      Kellner Chehebar & Deveney, New York City (Douglas A. Kellner of counsel), for Labrador Retriever Club, Inc. and others, amici curiae.
    I. The Court should not change breed standards. II. The Court should avoid interference in the operations of private associations. (Lafond v Deems, 81 NY 507; Crouch v National Assn. for Stock Car Auto Racing, Inc., 845 F2d 397; Koszela v National Assn. of Stock Car Auto Racing, Inc., 646 F2d 749; Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256.) III. The Court should avoid interference with the constitutionally protected right of free association. (National Assn. for Advancement of Colored People v Patterson, 357 US 449; National Assn. for Advancement of Colored People v Button, 371 US 415; Bates v City of Little Rock, 361 US 516; Boy Scouts of Am. v Dale, 530 US 640; Roberts v United States Jaycees, 468 US 609; Eu v San Francisco County Democratic Cent. Comm., 489 US 214; Tashjian v Republican Party of Conn., 479 US 208.) IV Tail docking is an accepted, legal practice. (People v Rogers, 183 Misc 2d 538.)
   OPINION OF THE COURT

Graffeo, J.

Plaintiff Jon H. Hammer is the owner of a purebred Brittany Spaniel dog with a 10-inch-long natural tail. Defendant American Kennel Club (AKC) sponsors competitions that utilize a breed standard promulgated by defendant American Brittany Club (ABC). The standard penalizes Brittany Spaniels with tails longer than four inches. The issue in this appeal is whether Agriculture and Markets Law § 353 grants plaintiff, who wishes to enter his dog and compete without penalty in breed contests, a private right of action to preclude defendants from using a standard that encourages him to “dock” his Brittany Spaniel’s tail. Because we conclude that it would be inconsistent with the applicable legislative scheme to imply a private right of action in plaintiff’s favor, we affirm the Appellate Division order dismissing the complaint.

Defendant ABC is the national parent club for Brittany Spaniels and is one of 148 different breed clubs affiliated with defendant AKC. As explained in AKC’s official publication, “The Complete Dog Book,” members of breed clubs vote to adopt particular standards, which are then submitted to the AKC for approval and use in AKC-sanctioned competitions, such as the Westminster Kennel Club show. According to defendants, these standards represent the “ideal” for each breed and establish guidelines for dog show judges, breeders and purchasers of purebred dogs.

Defendants’ standard for Brittany Spaniels provides that dogs should be “[tjailless to approximately four inches, natural or docked. The tail not to be so long as to affect the overall balance of the dog. . . . Any tail substantially more than four inches shall be severely penalized.” Notably, unlike other deviations from the standards, such as height and coloration, a longer tail does not disqualify a dog from competition.

In 2001, plaintiff commenced this action against defendants for declaratory and injunctive relief. The gravamen of plaintiffs complaint is that the Brittany Spaniel breed standard encourages owners to violate Agriculture and Markets Law § 353, a penal statute prohibiting animal cruelty, because it is cruel to dock a dog’s tail. Plaintiff claims that defendants discriminate against him by excluding him from meaningful participation in AKC competitions because he is unwilling to dock his dog’s tail. He therefore seeks a declaration that the breed standard violates New York law and an injunction precluding defendants from using the allegedly illegal standard in judging breed competitions.

AKC and ABC moved separately to dismiss the action, arguing that plaintiff lacked standing to secure civil relief for the alleged violation of section 353. Supreme Court consolidated the motions and granted defendants relief, dismissing the complaint. The Appellate Division affirmed, with two Justices dissenting, and we now affirm.

Where a penal statute does not expressly confer a private right of action on individuals pursuing civil relief, recovery under such a statute “may be had only if a private right of action may fairly be implied” (Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]; see also Carrier v Salvation Army, 88 NY2d 298, 302 [1996]). This inquiry entails consideration of three factors: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” (Carrier, 88 NY2d at 302). In assessing whether a private right of action can be implied, we have acknowledged that

“the Legislature has both the right and the authority to select the methods to be used in effectuating its goals, as well as to choose the goals themselves. Thus, regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme” (Sheehy, 73 NY2d at 634-635; see Hoxie’s Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207, 212 [1990]).

Article 26 of the Agriculture and Markets Law regulates the treatment of animals and contains provisions previously codified in the former Penal Code, Penal Law and Code of Criminal Procedure. Plaintiff relies on section 353 of that article, which states that a person who “cruelly beats or unjustifiably injures, maims, mutilates or kills any animal” or permits such treatment of any animal is guilty of a misdemeanor, contending that this criminal statute also creates a civil private right of action.

The Legislature explicitly addressed the enforcement of animal protection statutes in two provisions. Section 371 of the Agriculture and Markets Law requires police officers and constables to enforce violations of article 26 and further authorizes “any agent or officer of any duly incorporated society for the prevention of cruelty to animals” to initiate a criminal proceeding. In addition, section 372 enables magistrates to issue search and arrest warrants “[u]pon complaint under oath . . . that the complainant has just and reasonable cause to suspect that any of the provisions of law relating to or in any wise affecting animals are being or about to be violated.” Through the adoption of these two sections, the Legislature established that enforcement authority lies with police and societies for the prevention of cruelty to animals and violations would be handled in criminal proceedings.

This is not a criminal action and plaintiff is not asking law enforcement officials to charge defendants with violations of the law subject to criminal penalties. Indeed, plaintiff has not alleged that these organizations are cruelly or unjustifiably injuring or maiming any dogs and admittedly does not intend to conform his dog’s tail length to the breed standard. Therefore, neither plaintiff nor defendants have engaged in any conduct that violates the law as plaintiff interprets it.

The statute does not, either expressly or impliedly, incorporate a method for private citizens to obtain civil relief. In light of the comprehensive statutory enforcement scheme, recognition of a private civil right of action is incompatible with the mechanisms chosen by the Legislature (see Sheehy, 73 NY2d at 634-635; see also Walz v Baum, 42 AD2d 643, 644 [3d Dept 1973], lv denied 33 NY2d 517 [1973]). Inasmuch as plaintiff concedes that his claims sounding in discrimination cannot be maintained in the absence of a private right of action under the Agriculture and Markets Law, those claims were also properly dismissed.

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

Chief Judge Kaye and Judges G.B. Smith, Cipabick, Rosenblatt and Read concur.

Order affirmed, with costs.

      . The Legislature has prohibited or regulated other physical alterations of animals, including the cutting of horse tails (see Agriculture and Markets Law § 368) and the clipping of dogs’ ears (see Agriculture and Markets Law § 365).

      . It is therefore unnecessary for us to determine here whether dog tail docking violates section 353 of the Agriculture and Markets Law.


author: Chief Judge Kaye. G.B. Smith, J.

text:
    [804 NE2d 402, 772 NYS2d 238]
    The People of the State of New York, Respondent, v Robert Johnson, Appellant.
    Argued November 20, 2003;
    decided December 22, 2003

      POINTS OF COUNSEL

      Legal Aid Society Criminal Appeals Bureau, New York City {Laura Lieberman Cohen, Andrew C. Fine and Laura R. Johnson of counsel), for appellant.
    The nontestifying complainant’s hearsay statement at the hospital was improperly admitted as an excited utterance, thereby violating appellant’s right to confront the witnesses against him, because the statement was made one hour and 20 minutes after the incident, after the complainant was treated and found to be calm, alert, and able to follow complex commands; the statement was a paragraph-long narrative made in response to police questioning, and the remaining evidence was legally insufficient to prove appellant’s guilt beyond a reasonable doubt. The court’s erroneous admission of the hearsay statement as an excited utterance deprived appellant of his due process right to a fair trial and to confront the witnesses against him. (People v Brown, 70 NY2d 513; People v Marks, 6 NY2d 67; People v Nieves, 67 NY2d 125; People v Vasquez, 88 NY2d 561; People v Edwards, 47 NY2d 493; People v Sostre, 51 NY2d 958; People v Caviness, 38 NY2d 227; People v Norton, 79 NY2d 808; People v Fratello, 92 NY2d 565; Lilly v Virginia, 527 US 116.)

      Robert M. Morgenthau, District Attorney, New York City (Walter J. Storey and Susan Axelrod of counsel), for respondent.
    The trial court properly admitted Val Grey’s hospital statement as an excited utterance. (People v Brown, 70 NY2d 513; People v Tonge, 93 NY2d 838; People v West, 56 NY2d 662; People v Robinson, 36 NY2d 224; People v Edwards, 47 NY2d 493; People v Marks, 6 NY2d 67; People v Cotto, 92 NY2d 68; People v Nieves, 67 NY2d 125; People v Brooks, 71 NY2d 877; People v Vasquez, 88 NY2d 561.)
   OPINION OF THE COURT

Chief Judge Kaye.

Defendant appeals his convictions of assault in the first degree and resisting arrest, asserting that an out-of-court, hearsay statement made by the victim of the assault was improperly admitted at trial as an excited utterance. The Appellate Division affirmed. Because we conclude that the trial court’s error was harmless beyond a reasonable doubt, we also affirm.

On February 5, 2000, Police Officer Jerrold Lutz and his partner came to the aid of Val Grey, a homeless man who had been stabbed twice in the eye. When the police arrived on the scene, defendant, also homeless, was holding in his right hand an ice pick with traces of blood on it while struggling with the victim, who had pinned defendant’s right arm against a wall. Upon seeing the police, the victim screamed, “[H]e stabbed me, he stabbed me.” The police arrested defendant and Grey staggered to a nearby laundromat, where he wiped the blood from his eye with a wet paper towel. One to two minutes later, Lutz entered the laundromat and the victim asked the officer whether “his eye was still intact.” Grey, accompanied by Lutz, was then taken to Bellevue Hospital by ambulance. Throughout the ride, as emergency medical technicians began to treat him, Grey continued to state that he had been stabbed, and continued to express concern that he had lost his eye, asking repeatedly whether it was still there.

Grey was given further treatment upon his arrival at the hospital. Finally, approximately one hour after the stabbing, he was interviewed by Lutz and made, in substance, the following statement to the officer about the circumstances leading up to the stabbing:

“[H]e was traveling down the stairway, at the subway station, and he saw a steel garbage can come rolling down the stairs next to him. He informed me that he was under the impression that that garbage can was intended to hit him. He then went back up the stairs to confront whoever threw the garbage can down the stairs. He did not see who threw it. [He stated he was informed by passersby that Mr. Johnson had thrown the can done (sic) the stairs.][] Mr. Johnson was standing approximately fifteen or so yards away. Approximately. Mr. Grey then went and confronted Mr. Johnson. A struggle ensued. Which resulted in Mr. Grey being stabbed.”

Later that night, the victim’s cognitive function began to deteriorate, resulting in the need for emergency brain surgery. After several months of treatment in Bellevue’s rehabilitation program, Grey left the hospital without being discharged. Despite a diligent search by the police and prosecution, Grey could not be located for trial and the People sought to introduce his hearsay statements as excited utterances. On this appeal, defendant does not challenge Grey’s statements at the scene, in the laundromat or in the ambulance, but claims that the final statement to the officer, quoted above, should not have been received in evidence.

The trial court held a hearing on the People’s motion to introduce the statements at trial, at which Lutz testified. According to the testimony adduced at the hearing, when the police first approached defendant and the victim, who were then struggling with each other, the victim was bleeding heavily from his eye. The victim was “very agitated, very excited, he was confused about what was happening.” Specifically, “[h]is speech was very high pitched, he was screaming at times. He was very unsteady in his movement.” Similarly, when the officer entered the laundromat approximately one to two minutes later, the victim’s demeanor had not changed in any way. Still distraught, the victim stated that he thought he had lost his eye and he asked the officer whether his eye had been “cut out.” The victim “continued to be very agitated” and kept asking the officer how this happened. The victim “was having a little bit of difficulty hearing” the officer. “He was distracted by the amount of pain he was in. He was moaning.” He was also “giving a lot of attention to his left eye. He was very distracted by what was happening to it.”

By the time the officer spoke with the victim in the hospital, however, Grey’s demeanor had become more relaxed in that “[h]e wasn’t moving, he wasn’t fidgeting, he was lying still.” Moreover, Grey’s hospital records, also introduced into evidence at the hearing, reflected that at the time of his admission he was awake, alert and oriented; he was able to follow complex instructions; and his speech was fluent.

Discussion

The familiar common-law hearsay exception for excited utterances, formerly called spontaneous declarations, has been recognized by this Court for nearly a century (see People v Del Vermo, 192 NY 470, 483-487 [1908]). The principle is easily stated. An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication. “Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy” (People v Edwards, 47 NY2d 493, 497 [1979]). Accordingly, “under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control. . . . [An excited] utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection” (People v Marks, 6 NY2d 67, 71 [1959], quoting 6 Wigmore, Evidence § 1747 [I] [3d ed]).

Stating the rule is simple. Determining a declarant’s mental state—that is, whether at the time the utterance was made a declarant was in fact under the stress of excitement caused by an external event sufficient to still his or her reflective faculties—is considerably more difficult.

Among the factors to be considered by a trial court is the period of time between the startling event and the out-of-court statement. As we have several times noted, there can be no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances. “The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance” (People v Brown, 70 NY2d 513, 518 [1987] [internal quotation marks omitted]). Ultimately, “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” (People v Vasquez, 88 NY2d 561, 579 [1996] [internal quotation marks omitted]). Nor does the fact that statements are made in response to police questioning, “standing alone—any more than do other specific circumstances—defeat the admissibility of the responses as excited utterances” (Brown, 70 NY2d at 522).

While any serious injury may be a significant factor in determining whether the declarant remains under the stress of a startling event, it is not the only factor (see Steven Zeidman, Who Needs an Evidence Code?: The New York Court of Appeals’s Radical Re-Evaluation of Hearsay, 21 Cardozo L Rev 211, 220-221 [1999]). There is, in short, no “injury” exception to the hearsay rule. Indeed, we have never held that any statement made by an injured victim about the event leading to the injury, however long after the trauma, constitutes an excited utterance merely because the victim continues to suffer pain caused by the injury. Even in the case of serious injury, the test remains what it has always been: whether the declarant is capable of studied reflection and therefore capable of fabrication.

On the combined facts before us, we cannot say that the declarant’s capacity for reflection and deliberation remained stilled by the time of his final statement to the police. The challenged declaration was made—in narrative form and in response to prompting—a full hour after the startling event (cf. People v Cotto, 92 NY2d 68, 79 n 3 [1998] [statement made in ambulance less than 10 minutes after declarant was shot admissible as excited utterance]; Edwards, 47 NY2d at 498 [statement made in response to a “simple inquiry”]). Moreover, the declarant had become more relaxed. According to his uncontroverted medical records, he was awake, alert and oriented; he was able to follow complex instructions; and his speech was fluent. In this condition, despite pain, clearly declarant was no longer without the ability to engage in reasoned reflection upon the content of his statement. Indeed, when asked by the prosecutor whether there had been “any pauses or a long time to reflect” when the victim explained his version of events to the officer at the hospital, Lutz responded, “There were moments of reflection.”

Given the victim’s disappearance, this case had to proceed to trial in the absence of a live complaining witness subject to cross-examination. Where the only direct evidence of a defendant’s guilt is in the form of hearsay testimony, courts must be especially vigilant to ensure that only evidence that rises to the level of “inherent reliability” (Edwards, 47 NY2d at 499) underlying such firmly rooted hearsay exceptions as excited utterances is admitted at trial (see 6 Framer and Biskind, Bender’s New York Evidence—CPLR § 24.03 [1], at 24-8 [2003] [factors in determining whether a declaration constitutes an excited utterance include “the fact that the complainant was subject to cross-examination”]).

Nevertheless, we conclude that the error here was harmless beyond a reasonable doubt. Even without the victim’s final statement, eyewitness police testimony established that defendant was holding a blood-stained ice pick while straggling with the victim, who was bleeding heavily from his eye. The victim’s immediate cries—“[h]e stabbed me, he stabbed me”—properly admitted as excited utterances and not challenged on this appeal, proved the identity of defendant as the perpetrator of the crime. Moreover, Grey had been stabbed twice, negating any possibility of accident. Finally, inasmuch as defendant did not argue self-defense at trial, the People had no burden to disprove that defense beyond a reasonable doubt {see Penal Law § 25.00 [1]). Indeed, during the charge conference, the court—“just to make one thing a hundred percent clear”—stated for the record that there had been no evidence of justification. Defense counsel responded, “That is correct.” In short, the evidence of defendant’s guilt was overwhelming.

Finally, we have no disagreement with the bulk of the dissent: The right of confrontation is indeed a fundamental right; face-to-face cross-examination of witnesses is greatly to be preferred; and the hospital statement here—unlike the earlier statements—was erroneously admitted. We disagree only as to harmless error on these indisputable facts: Defendant stabbed the victim in the eye with an ice pick; as the medical evidence established, the victim was stabbed twice, negating any possible accident; defense counsel made it “a hundred percent clear” at trial that he was not arguing self-defense, or justification; and, although six other witnesses testified and were subject to cross-examination, the victim had vanished months earlier and could not be located. On these facts, the conviction should be sustained.

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

G.B. Smith, J.

(dissenting). Defendant’s argument on this appeal is that a statement by the complainant in a hospital in answer to police questioning was not an excited utterance and violated his federal and state rights to confront witnesses and to due process. Because defendant’s conviction violated his federal and state constitutional rights to confront witnesses and to due process, I dissent.

Defendant was convicted of assault in the first degree and resisting arrest resulting from the stabbing of the complainant in the eye with an ice pick. The complainant did not testify before the grand jury or at the trial. The evidence was that two police officers came upon the defendant and the complainant while they were struggling with each other and defendant was holding the ice pick. Both men were homeless, the complainant smelled of alcohol and defendant appeared to be slightly intoxicated.

The only evidence of how the struggle between defendant and the complainant occurred resulted from statements of the complainant which were all admitted by the trial court as excited utterances. The first statement, made as the police approached the two men, was, “He stabbed me.” The second statement, made after the police had subdued defendant and after the complainant had wandered into a nearby laundromat, was that he had lost his eye and a question as to whether or not his eye was still there. In the third statement in the ambulance on the way to the hospital, complainant again said he was stabbed and continued to question whether he would lose his eye. The fourth statement, made at the hospital in response to police questioning about an hour after the incident, without quoting, was substantially as follows: Complainant stated that while he was in a subway station, a garbage can was thrown down the stairs. Complainant felt that the can was thrown at him. He ran up the stairs and someone told him that defendant had thrown the can. He confronted the defendant and during the struggle he was stabbed in his eye. He could not say how the stabbing occurred.

The trial court admitted all of the statements as excited utterances and defendant was convicted. The Appellate Division affirmed, stating, “The evidence clearly established that all of the victim’s statements were made while he was still under the influence of the stress caused by his serious injuries (see People v Brown, 70 NY2d 513; People v Edwards, 47 NY2d 493).” (299 AD2d 213, 214 [2002].) A Judge of this Court granted defendant leave to appeal.

At the time of the trial, defendant argued that his right to confront witnesses and to a fair trial would be violated by the admission of all of the statements as excited utterances. On this appeal, he argues only that the statement made to the police in the hospital should not have been admitted and that its admission denied him the constitutional rights to confront witnesses and to a fair trial.

Analysis of this case must begin with Pointer v Texas (380 US 400 [1965]). There, the Supreme Court of the United States, after noting that the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination had been made obligatory on the states by the Fourteenth Amendment stated, “We hold today that the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment” (380 US at 403). The Court went on to state the following with respect to cross-examination:

“It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case” (id. at 404).

In Pointer, the Supreme Court reversed petitioner’s conviction for robbery because the testimony of the complainant at a preliminary hearing had been used at the trial held after the complainant had moved to California and did not intend to return to Texas. The petitioner did not have an attorney at the preliminary hearing and was denied the right to cross-examine the complainant.

The right to confront witnesses, in essence, the right to cross-examine them, is a sacred right enshrined not only in the Sixth Amendment of the United States Constitution and article I, § 6 of the New York State Constitution but is ancient and is mentioned in a number of works that predate the Constitution, such as the Bible, and Shakespeare’s Henry VIII (see Lilly v Virginia, 527 US 116, 140, 141 [1999] [Breyer, J., concurring]). The right of confrontation permits the accused to face his accusers—to test their credibility, their trustworthiness and their veracity. Cross-examination is important because it is instrumental in “exposing falsehood and bringing out the truth in the trial of a criminal case” (Pointer v Texas, 380 US at 404). A Confrontation Clause violation may also constitute a violation of the right of due process and fair trial guaranteed by the Fourteenth Amendment and article I, § 6 of the New York State Constitution.

“The right to cross-examination, protected by the Confrontation Clause, ... is essentially a ‘functional’ right designed to promote reliability in the truth-finding functions of a criminal trial. The cases that have arisen under the Confrontation Clause reflect the application of this functional right” (Kentucky v Stincer, 482 US 730, 737 [1987]). According to Kentucky v Stincer, those cases reflect two broad and nonexclusive categories—first, that the Confrontation Clause is violated when hearsay evidence is admitted as substantive evidence against a defendant without an opportunity to question the declarant at trial and, second, when an out-of-court statement is admitted at trial without adequate indications of trustworthiness (id.).

In dealing with the relationship between the Confrontation Clause and hearsay evidence, the Supreme Court has stated, “The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay” (Ohio v Roberts, 448 US 56, 63 [1980], citing California v Green, 399 US 149, 156-157 nn 9, 10 [1970]). The Court in Ohio v Roberts went on to explain that the Confrontation Clause contained a preference for face-to-face cross-examination of witnesses (id.). Nevertheless, hearsay evidence was admissible but was restricted in two ways. First, the Sixth Amendment established a rule of necessity where usually the prosecution had to produce the declarant or demonstrate his or her unavailability (448 US at 65). Second, once the witness was shown to be unavailable, the hearsay statement was admissible only if its trustworthiness was such that it did not depart from the rule of face-to-face confrontation (id.).

Ohio v Roberts concluded that hearsay evidence could be admitted only if it bears “adequate ‘indicia of reliability’ ” (448 US at 66). “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness” (id.). In Ohio v Roberts the Court held that the testimony of a witness at a preliminary hearing, where the witness had been subject to cross-examination, could be admitted into evidence at trial where that witness had failed to honor several subpoenas to appear.

In Idaho v Wright (497 US 805, 820 [1990]) the Supreme Court referred to excited utterances, dying declarations and statements made for medical treatment as firmly rooted hearsay exceptions which would normally be admitted without other indicia of reliability. But the Court went on to add that such statements had to be so trustworthy that little could be added by cross-examination (497 US at 821). There, the Court held that statements concerning sexual abuse made to a doctor by a three-year-old girl did not bear a sufficient indication of reliability and were improperly admitted into evidence.

In this case, the defendant’s rights under the Confrontation Clause as articulated in Kentucky v Stincer were violated by the hearsay evidence admitted as substantive evidence without an opportunity for cross-examination and the admission of hearsay evidence without sufficient indications of trustworthiness. Defendant was convicted on the basis of a hospital statement that the majority agrees was inadmissible. Contrary to the decision of the majority, I cannot conclude that the error was harmless beyond a reasonable doubt and that the introduction of the hospital statement did not contribute to the conviction (Chapman v California, 386 US 18 [1967]).

In Chapman the Supreme Court concluded that there are some constitutional errors which may be considered harmless:

“We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction” (id. at 22).

That a constitutional error can be harmless is not the only relevance of the Chapman case. As important is the Supreme Court’s determination of when an error is harmless. The Court stated:

“We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U. S. 85. There we said: ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ Id., at 86-87. . . . There is little, if any, difference between our statement in Fahy v. Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (386 US at 23-24).

There are situations in which the fundamental interests served by the right to confront witnesses are not significantly impaired by the admission of a hearsay statement that falls under an exception (cf. Lilly v Virginia). In this case, however, the challenged statement does not even fall within a hearsay exception. The introduction of that statement violated defendant’s right of cross-examination and was prejudicial in that it gave only the complainant’s version of the events without cross-examination. Moreover, the complainant could not say how the stabbing occurred. Defendant had no burden at the trial and was presumed innocent.

The statements made at the scene, in the laundromat and in the ambulance, even assuming their admission was normally proper under Ohio v Roberts and Idaho v Wright, did not bear a sufficient indication of reliability. The complainant had a motive to lie because he went looking for the person who had thrown a trash can and sought a confrontation. Moreover, the fact that the complainant smelled of alcohol is an indication that he may have been under the influence of alcohol and “militates against finding that his statements were so inherently reliable that cross-examination would have been superfluous” (Lilly v Virginia, 527 US 116, 139 [1999]).

The evidence leaves little doubt that defendant stabbed the victim. The same cannot be said of the evidence that defendant did so intentionally. How the confrontation proceeded and how the stabbing occurred, whether deliberately or accidently during a struggle, are unknown. Had the complainant been subject to cross-examination, questions surrounding the incident would have been answered and the jury might have gotten a more complete picture of the confrontation.

I would reverse the conviction.

Judges Ciparick, Rosenblatt, Grafpeo and Read concur with Chief Judge Kaye; Judge G.B. Smith dissents and votes to reverse in a separate opinion.

Order affirmed.

      . Defendant resisted arrest and punched Lutz’s partner in the face. He was subdued only after being wrestled to the ground by the police. Defendant suffered no injury.

      . The double hearsay contained in the bracketed portion of the statement was not admitted before the jury.

      . Regrettably, there is no simple, sure-fire test such as that once proposed by the late Irving Younger: “How do you recognize an excited utterance? I can tell you. If hearsay is offered and it begins with ‘My God,’ and ends with an exclamation point, it is an excited utterance” (Younger, An Irreverent Introduction to Hearsay, at 33 [ABA Section of Litig Monograph Series No. 3, 1977]). Neither exclamation nor punctuation can be determinative. Rather, courts must take into account that a variety of circumstances may determine whether a declarant remains under the stress of a startling event.

      . Six other witnesses did testify at trial: two police officers, the treating neurosurgeon, the victim’s physical therapist, and an assistant district attorney and her trial preparation assistant.

      . Since the right to confront witnesses (see US Const Amend VI; NY Const, art I, § 6) may be implicated when a hearsay statement is introduced at trial, we apply a constitutional standard of harmless error (see People v Crimmins, 36 NY2d 230, 237 [1975]; Chapman v California, 386 US 18 [1967]). But we cannot agree with the dissent that a per se violation of the Confrontation Clause is dispositively established whenever a declarant fails to testify at trial and therefore is not subject to cross-examination.

      . Both the Sixth Amendment to the United States Constitution and article I, § 6 of the New York State Constitution give a defendant the right to confront witnesses against him or her. The Fourteenth Amendment to the Constitution and article I, § 6 of the New York State Constitution assure the right to due process and a fair trial.

      . In White v Illinois (502 US 346 [1992]), the Supreme Court upheld the conviction of a defendant for aggravated criminal sexual assault, residential burglary and unlawful restraint based upon the spontaneous declarations and statements given for medical treatment of the four-year-old victim. The four-year-old victim had experienced emotional difficulty upon being brought to the courtroom on two occasions. The trial court was not asked to and did not make a finding that the child was unavailable to testify. The defendant did not attempt to call the witness to testify. In ruling that the child’s statements could be introduced, the Court held that the Confrontation Clause had not been violated. Thus, it is evident that in some cases an excited utterance can be admitted without violating the right to confront witnesses. It is also clear that the statements were made by a four-year-old girl and that there was other evidence of sexual misconduct against her.


author: G.B. Smith, J.

text:
    [805 NE2d 92, 773 NYS2d 1]
    Bankers Trust Corporation, Formerly Known as Bankers Trust New York Corp., Appellant, v New York City Department of Finance et al., Respondents.
    Argued October 16, 2003;
    decided November 25, 2003

      POINTS OF COUNSEL

      Hutton & Solomon LLP, New York City (Kenneth I. Moore, Stephen L. Solomon and Roger S. Blane of counsel), for appellant.
    I. The Department of Finance may not raise extraneous issues in auditing the state correction. (People ex rel. International Salt Co. v Graves, 267 NY 149; Central Trust Co. of N.Y. v Falck, 177 App Div 501, affd sub nom. Central Trust Co. of N.Y. v Rogers, 223 NY 705; Apex Air Frgt. v O’Cleireacain, 210 AD2d 7; Duffy v Horton Mem. Hosp., 66 NY2d 473.) II. The Department of Finance does not have an equitable right of setoff. (Lewis v Reynolds, 284 US 281; Matter of Capital Cities Communications v State Tax Commn., 65 AD2d 25; Matter of Morton Bldgs. v Chu, 126 AD2d 828, 70 NY2d 725; Bull v United States, 295 US 247; Stone v White, 301 US 532; United States v Dalm, 494 US 596.) III. The Department of Finance may not reallocate Bankers Trust’s income. IV The Department of Finance is bound by its own agreements.

      Michael A. Cardozo, Corporation Counsel, New York City (Robert J. Firestone and Rita D. Dumain of counsel), for respondents.
    I. The Appellate Division correctly ruled that Administrative Code of the City of New York § 11-678 (3) does not bar the City from adjusting Bankers Trust’s worldwide entire net income in determining whether Bankers Trust overpaid its tax. (Jones v Liberty Glass Co., 332 US 524; Castle Oil Corp. v City of New York, 89 NY2d 334; Lewis v Reynolds, 284 US 281, 599; People v Tran, 80 NY2d 170; People v Dethloff, 283 NY 309; People v Cruz, 48 NY2d 419; Matter of Medical Socy. of State of N.Y. v State of New York Dept. of Health, 83 NY2d 447; United States v Dalm, 494 US 596; Bull v United States, 295 US 247; Matter of American Can Co. v State Tax

      Commn., 13 AD2d 175.) II. The Appellate Division’s ruling that Bankers Trust is not required to exhaust its “exclusive” remedies with the Tax Appeals Tribunal, where it does not allege the bank tax to be wholly inapplicable, is contrary to prior rulings of this Court. (Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87; Dun & Bradstreet v City of New York, 276 NY 198; Richfield Oil Corp. of N.Y. v City of Syracuse, 287 NY 234; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Apex Air Frgt. v O’Cleireacain, 210 AD2d 7, 86 NY2d 712; Matter of Herberg v Perales, 180 AD2d 166; GTE Spacenet Corp. v New York State Dept. of Taxation & Fin., 201 AD2d 429; Reader’s Digest Assn. v Friedlander, 100 AD2d 871.) III. The consent and waiver forms do not preclude the City from determining whether Bankers Trust overpaid its tax before issuing it a refund.

      Eliot Spitzer, Attorney General, New York City (Caitlin J. Halligan, Michelle Aronowitz, Andrew D. Bing and Patrick J. Walsh of counsel), for State of New York, amicus curiae.
    The Appellate Division correctly held that the City did not violate the prohibition against changing the taxpayer’s “allocation of income or capital” because the prohibition refers to a taxpayer’s allocation percentage only. (Matter of Siemens Corp. v Tax Appeals Trib., 89 NY2d 1020; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393; Lorillard Tobacco Co. v Roth, 99 NY2d 316; People ex rel. International Salt Co. v Graves, 267 NY 149.)
   OPINION OF THE COURT

G.B. Smith, J.

In this action, the New York City Department of Finance denied a tax refund to plaintiff, Bankers Trust Corporation, based upon certain adjustments it made to plaintiffs reported income. The Appellate Division agreed with the trial court that the doctrine of exhaustion of administrative remedies was inapplicable but reversed on the merits, concluding that the City had properly denied the refund. We conclude that Administrative Code of the City of New York § 11-681 (2), providing for review by the Tax Appeals Tribunal, was plaintiffs exclusive remedy and we accordingly modify the order of the Appellate Division.

I.

At the time of this action, Bankers Trust was a bank holding company with headquarters in New York City and more than 800 subsidiaries and affiliates across the United States and worldwide. It paid state and city taxes for income derived from doing business in both.

The calculation of state and city taxes owed begins with and is based upon “entire net income,” which is generally defined as income reported to the federal government (Tax Law § 1453 [a]; Administrative Code of City of NY § 11-641 [a]). In 1985, the state and city tax laws were amended to permit “a deduction in determining entire net income” of “seventeen percent of interest income from subsidiary capital” (Tax Law § 1453 [e] [11] [1]; Administrative Code § 11-641 [e] [113 [i])- A subsidiary is defined as a corporation in which the taxpayer owns over 50% of the voting shares (Tax Law § 1450 [d]; Administrative Code § 11-602 [2]). Bankers Trust claimed a deduction for the years 1986 and 1987.

In 1992, the State and City, after audits, disallowed the deduction to the extent it applied to interest income from second- or lower-tier subsidiaries. As the name suggests, a second-tier subsidiary is owned by a subsidiary in which the taxpayer owns over 50% of the voting stock. A third-tier subsidiary would be owned by the second-tier subsidiary and so on. After the disallowance, Bankers Trust signed a consent and waiver form with the City, agreeing to a deficiency for the years 1985, 1986 and 1987, and paying the amount. The agreement provided that it did not preclude Bankers Trust from filing a claim contesting the assessment and seeking a refund. The State entered into a similar agreement covering the same years and in April 1997, the City and Bankers Trust again entered into a similar agreement covering the year 1993.

In May 1993, in a different case, the New York State Tax Appeals Tribunal affirmed a determination of an administrative law judge (ALJ), holding that interest income from a second-tier subsidiary is deductible “where a corporation controls all aspects of a second tier subsidiary’s operation and management” (Matter of Racal Corp., 1993 WL 181623, *8, 1993 NY Tax LEXIS 208, *23 [DTA No. 807631, TSB-D-93(5)C]). Several months later, Bankers Trust filed claims for refunds with the State Department of Taxation and Finance, seeking the 17% deduction for the year 1985. In March 1996, the Tax Appeals Tribunal affirmed an ALJ’s determination that Bankers Trust failed to offer sufficient proof that it fully controlled all aspects of the second-tier subsidiaries at issue. Nevertheless, the next year, August 1997, Bankers Trust and the State entered into a closing agreement in which the State essentially agreed to withdraw and cancel notices of deficiency under the franchise tax on banking corporations (Tax Law art 32) for the years 1986 through 1994.

Bankers Trust then filed a claim with the City reporting the terms of the agreement with the State, pursuant to Administrative Code § 11-646 (e), and seeking a refund for the years 1986, 1987 and 1993, of approximately $1.2 million, $1.3 million, and $3.8 million, respectively. The City disallowed the refunds, thus giving rise to this action.

The threshold issue is whether plaintiff is excused from having to exhaust its exclusive statutory remedy, which for us is determinative.

II.

During the initial audits, the City had allowed Bankers Trust deductions for home office and foreign branch administrative expenses associated with the second-tier subsidiaries. After the changes by the State were reported, however, the City disallowed those deductions pursuant to Internal Revenue Code (26 USC) § 482 (dealing with the prevention of tax evasion) on the ground that since Bankers Trust fully controlled the second-tier subsidiaries, those expenses should be deductible by the subsidiaries for the management services provided to them by Bankers Trust.

Bypassing its exclusive administrative remedy, Bankers Trust commenced a declaratory judgment action in the Supreme Court seeking a refund for the years 1986, 1987 and 1993, arguing that the City should have conformed its city taxable income in accordance with the changes made by the State and should have allowed the deductions without analyzing any other issues. Following plaintiffs motion for summary judgment, Supreme Court agreed with Bankers Trust that it was not required to exhaust administrative remedies because the issue was the interpretation and application of statutes that did not involve the special expertise of the relevant agencies, and the exhaustion of administrative remedies would cause irreparable harm.

On the merits, Bankers Trust relied on Administrative Code § 11-678 (3), which governs a taxpayer’s claim for a refund after a change by the state or federal government. The section provides that the claim must be filed “within two years from the time such report or amended return was required to be filed with the commissioner of finance.” {Id. 1i [b].) In addition, the statute provides that the refund

“(c) shall be computed without change of the allocation of income or capital upon which the taxpayer’s return (or any additional assessment) was based, and
“(d) shall not exceed the amount of the reduction in tax attributable to such decrease or increase in federal or New York state taxable income, alternative minimum taxable income or other basis of tax or federal or New York state tax or to such federal or New York state change or correction or renegotiation, or computation or recomputation of tax” (Administrative Code § 11-678 [3] [c], [d]).

The mirror image of this rule is section 11-674 (3) (c), (g), which governs the City’s assessment as a result of a change by the state or the federal government. Between these two sections is section 11-677 (1), which provides that:

“The commissioner of finance, within the applicable period of limitations, may credit an overpayment of tax and interest on such overpayment against any liability in respect of any tax imposed by any of the named subchapters of this chapter or on the taxpayer who made the overpayment, and the balance shall be refunded out of the proceeds of the tax.”

Supreme Court agreed with Bankers Trust that the City reallocated Bankers Trust’s income when it reaudited the returns. The court rejected the City’s claim that the reaudit was lawful under section 11-677 (1) since the City was bound to determine whether Bankers Trust had actually overpaid taxes for the relevant years before issuing any refund. The court thus granted Bankers Trust’s motion for summary judgment.

On appeal, the Appellate Division agreed with Supreme Court on the procedural issue, but reversed on the merits. On exhaustion of administrative remedies, the Court found that Bankers Trust’s challenge involved statutory interpretation and was “based on the general nature of the adjustments, and does not require us to determine their accuracy by delving into the underlying facts or computations on which they were based.” (301 AD2d 321, 328 [2002].) On the merits, the Court disagreed with the motion court that there had been a change in the allocation of income. The Court found that the phrase “allocation of income” referred to “allocation percentage.” While the City had shifted income from the subsidiaries to Bankers Trust, there had been no change in the allocation percentage. The court also agreed with the City that it had to determine whether Bankers Trust had overpaid taxes before issuing a refund.

We conclude that plaintiff failed to utilize its exclusive administrative remedy, and we do not address the merits.

III.

Actions by taxing officers can be reviewed only in the manner prescribed by statute (National Bank of Chemung v City of Elmira, 53 NY 49, 59 [1873]; Dun & Bradstreet v City of New York, 276 NY 198 [1937]; Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87 [1975]). In this case, Administrative Code § 11-681 (2) provides as follows:

“The review of a decision of the tax appeals tribunal provided by this section shall be the exclusive remedy available to any taxpayer for the judicial determination of the liability of the taxpayer for the taxes imposed by the named subchapters.”

There are two exceptions to the exclusive remedy requirement: “[w]hen a tax statute ... is alleged to be unconstitutional, by its terms or application, or where the statute is attacked as wholly inapplicable” (First Natl. City Bank, 36 NY2d at 92; Richfield Oil Corp. of N.Y. v City of Syracuse, 287 NY 234, 239 [1942]). In these two circumstances, “the invalidity or total inapplicability affects the entire statute, including the limitations and restrictions on the remedy provided in it” (First Natl. City Bank, 36 NY2d at 92-93).

To challenge a statute as wholly inapplicable, the taxpayer must allege that the agency had no jurisdiction over it or the matter that was taxed. As we stated in National Bank of Chemung, “[assessors must have jurisdiction over the person and subject-matter. The person must be an inhabitant of the town, and the property must be taxable. Otherwise, the assessment is illegal and void” (53 NY at 59). In National Bank of Chemung, the assessors had imposed a tax on the capital stock of the bank in direct violation of a statute providing that such property was not taxable. In Dun & Bradstreet, the City of New York had the authority to impose a tax on certain public utility companies and on the sale of tangible personal property. Since the plaintiff was not a public utility company and did not sell tangible personal property, the City acted without jurisdiction (see also Richfield Oil Corp. of N.Y. v City of Syracuse, 287 NY 234 [1942]; Socony-Vacuum Oil Co. v City of New York, 247 App Div 163 [1936], affd 272 NY 668 [1936]).

Where the statute at issue in a dispute does not provide how judicial review may be obtained, resort must be made to the judicially-created rule that administrative remedies must be exhausted. The judicial doctrine of exhaustion of remedies is subject to exceptions not available when the statute has an exclusive remedy provision. The exceptions include when exhaustion of administrative remedies would be futile or would cause irreparable harm (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). Courts lack the discretion to rely on these exceptions where the Legislature itself has specifically delineated the exclusive steps a party must undertake in order to seek judicial relief.

Here, the statute includes an exclusive remedy provision. Yet neither the motion court nor the Appellate Division determined that the statute was unconstitutional or wholly inapplicable. It is true that in its complaint, Bankers Trust argued that the City acted “wholly beyond the [City’s] authority.” However, the proper characterization of Bankers Trust’s argument is that the Department improperly applied the relevant statute in computing a refund. Bankers Trust also argued that it would incur irreparable harm. Bankers Trust, however, did not dispute that it was subject to the tax on banking corporations, and that the City had the authority to audit the refund claims. The argument that the City misapplied a certain provision in calculating a refund is not the same as arguing that the banking corporation tax is wholly inapplicable to Bankers Trust.

In determining that the plaintiff was not required to exhaust its exclusive statutory remedy, the Appellate Division relied on Watergate II Apts., a case involving the judicially-created exhaustion of remedies doctrine—not, as here, the statutory exclusive remedy provision. In Watergate, moreover, the plaintiff there argued that sewer rent charges imposed by the Buffalo Sewer Authority were actually taxes, and that the Authority lacked the power to impose taxes. The argument that the Authority lacked the power to impose the charges would have made the statute wholly inapplicable. Bankers Trust did not make a similar argument here.

Accordingly, the order of the Appellate Division should be modified, with costs to defendants, by deleting the declaration in favor of defendants and substituting a provision dismissing the complaint, and, as so modified, affirmed.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and Read concur.

Order modified, etc.

      . In 1986, Bankers Trust’s entire net income was $351,273,989. With the 17% deduction Bankers Trust claimed for that year in its state and city tax forms, entire net income was reduced to $326,948,726. The portion of that income derived from business done within the city, or the allocation percentage, was 58.1232%. Multiplying the adjusted net income by the allocation percentage yields $190,033,062. Multiplying this number by the tax rate of nine percent yields a tax of $17,102,976. Since Bankers Trust paid $18,375,451, it claimed it was owed $1,272,475. The following year, Bankers Trust again claimed the deduction.

      . As a result of the “Allocated expenses,” as the City put it in its notice, Bankers Trust’s entire net income for 1986 was $415,092,737. Multiplying that number by 58.1232% (the allocation percentage) yields $241,265,182. The tax (of nine percent) due on that amount is $21,713,866, which is more than the $18,375,451 Bankers Trust paid for that year. The same is the case for the years 1987 and 1993.