author: Graffeo, J.

text:
    [906 NE2d 374, 878 NYS2d 646]
    Michael Israel et al., Respondents, v Surinder S. Chabra, Appellant, et al., Defendant.
    Argued February 10, 2009;
    decided March 26, 2009

      POINTS OF COUNSEL

      Howard W Burns, Jr., New York City, for appellant.
    I. The provision regarding any “rescission, waiver, or modification” may be reconciled with the written consent requirement relating solely to “modification.” (Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Allendale Mut. Ins. Co. v Excess Ins. Co. Ltd., 970 F Supp 265, 992 F Supp 271, 172 F3d 37; Isaacs v Westchester Wood Works, 278 AD2d 184.) II. If there is true irreconcilability, the Court must resolve it—blind choice of the earlier provision is a dinosaur. (Queens Best, LLC v Brazal S. Holdings, LLC, 35 AD3d 695; Angelucci v City of New York, 250 AD2d 716; Raul Cleaners Corp. v Kim’s Landmark Cleaners Corp., 210 AD2d 144; Cramer v Devon Group, Inc., 774 F Supp 176; Deering Milliken v Clark Estates, 43 NY2d 545; Cheng

      Sing Liang v Chiven Jen Huang, 255 AD2d 671; Honigsbaum’s, Inc. v Stuyvesant Plaza, 178 AD2d 702; Matter of Brooklyn Trust Co., 163 Misc 117.) III. New York has a strong legislative policy in enforcing no oral modification clauses. (Beatty v Guggenheim Exploration Co., 225 NY 380; Schwartzreich v Bauman-Basch, Inc., 231 NY 196; DEI Communications v Greenberg, 41 NY2d 602.)

      Sklover, Donath & Felber, LLC, New York City (Alan L. Sklover, Daniel A. Fried and Susan R. Nudelman of counsel), for respondents.
    I. General Obligations Law § 15-301 (1) does not require a no oral modifications provision of an instrument to prevail over conflicting provisions of the same instrument. (Cammack v Slattery & Bro., 241 NY 39; McKenzie v Harrison, 120 NY 260; Coe v Hobby, 72 NY 141; Beatty v Guggenheim Exploration Co., 225 NY 380; Hechter v New York Life Ins. Co., 46 NY2d 34; Rust v Reyer, 91 NY2d 355; Green v Doniger, 300 NY 238.) II. General Obligations Law § 15-301 (1) does not apply to the writing requirement of the guaranty. (Associated Food Stores v Siegel, 10 AD2d 1003, 9 NY2d 816; National Union Fire Ins. Co. of Pittsburgh, Pa. v Williams, 223 AD2d 395; Ripley v International Rys. of Cent. Am., 8 NY2d 430; Generate Bank v Czarnikow-Rionda Sugar Trading, Inc., 47 F Supp 2d 477; Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch v Kvaerner a.s., 243 AD2d 1; Rudman v Cowles Communications, 30 NY2d 1; SAA-A, Inc. v Morgan Stanley Dean Witter & Co., 281 AD2d 201; Goodyear Publ. Co. v Mundell, 75 AD2d 556; Imperator Realty Co. v Tull, 228 NY 447; Hill v Blake, 97 NY 216.) III. The consent clause should be construed as limiting the scope of the writing requirement. (Green v Doniger, 300 NY 238; Aramony v United Way of Am., 254 F3d 403; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42; Bank of Tokyo-Mitsubishi, Ltd., N.Y. Branch v Kvaerner a.s., 243 AD2d 1; Matter of Riefberg, 58 NY2d 134; 242-44 E. 77th St, LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100; Pittsburg & Shawmut R.R. Co. v Central Trust Co., 156 App Div 182.)
   OPINION OF THE COURT

Graffeo, J.

In this certified question case from the United States Court of Appeals for the Second Circuit, we are asked to determine whether General Obligations Law § 15-301 (1) affects the interpretation and enforcement of a contract. We begin with the facts underlying the contract dispute.

Plaintiffs Michael and Steven Israel were formerly employed by AMC Computer Corporation. In the spring of 2000, AMC was in the process of merging with a third-party investor. Because plaintiffs—a father and son—were key employees, the investor sought assurances that they would remain with AMC for at least three years after the merger. On May 1, 2000, plaintiffs entered into separate but virtually identical three-year employment agreements with AMC. Defendant Surinder “Sonny” Chabra, the president of AMC, executed the contracts in his corporate capacity. In addition, Chabra signed a “Letter of Intent” agreeing that, if the merger went forward, “Steven and Michael Israel each will be entitled to a $2 million bonus payment, for past services rendered, to be paid by Sonny Chabra.” The payments were to be made in equal monthly installments over the period covered by the employment contracts.

The employment agreements and the letter of intent were modified on July 31, 2000 in documents known as “Amendment No. 1 to Employment Agreement” and “Amendment No. 1 to Letter of Intent.” The amendments reduced plaintiffs’ bonuses to $1.75 million and transferred the obligation to make the payments from Sonny Chabra, in his personal capacity, to AMC. In the amended letter of intent, the parties further agreed that Chabra would personally guarantee the bonus payments and, about a month later, Chabra executed personal guarantees requiring him to cover any default upon 60 days’ notice of AMC’s failure to make an installment payment to either of the Israels. The guarantees stated that Chabra’s liability was “absolute and unconditional” regardless of “any change in the time, manner or place of payment” (a provision referred to as the “advance consent clause”) or of “any rescission, waiver, or modification of any of the terms or provisions of the Employment Agreement.” The last sentence of the guarantees (referred to as “the writing requirement”) provided: “References to the Employment Agreement shall mean the Employment Agreement immediately after the execution of Amendment No. 1 and shall not be affected by subsequent amendments to the Employment Agreement unless Guarantor has agreed in writing to such amendments.”

The merger occurred on August 30, 2000 and, under the amended agreements, plaintiffs began to receive bonus payments later that year. Over the next 2V2 years, AMC failed to make certain installment payments, causing plaintiffs to issue default notices to AMC and Chabra. To resolve the disputes over the missed payments, AMC entered into a “Second Amendment to Employment Agreement” with each plaintiff that included a new payment schedule for the balances due on the bonuses. The parties also agreed that Chabra’s personal guarantees would remain in effect. Chabra signed these amendments as president of AMC but not in his personal capacity.

AMC made some payments under the new schedule but ultimately ceased making any payments, prompting plaintiffs to forward default notices to AMC and Chabra. After an unsuccessful effort to arbitrate, plaintiffs pursued this action in the United States District Court for the Southern District of New York seeking enforcement of the Chabra guarantees. The parties cross-moved for summary judgment and the District Court granted judgment in favor of plaintiffs, holding that Chabra was personally obligated to pay the remaining balances on the bonus payments (418 F Supp 2d 509 [2006]).

On appeal, the Second Circuit disagreed with the District Court’s analysis in several respects (Israel v Chabra, 537 F3d 86 [2d Cir 2008]). Relevant to this appeal, since Chabra had signed the second amendment documents only in his capacity as president of AMC, the Second Circuit rejected the District Court’s finding that he was personally bound by the new payment schedule. The court further reasoned that plaintiffs’ failure to send default notices when payments were not made under the prior schedule might preclude recovery of some installments.

Focusing on the language in the guaranty documents, the Second Circuit viewed the advance consent clause as an agreement by Chabra to be bound by subsequent changes in the “time, manner or place of payment.” But the court found this provision irreconcilable with the writing requirement, construing the latter to preclude the enforcement of unsigned modifications of the employment agreement which, in light of Chabra’s failure to sign in his personal capacity, included the revised payment schedule. The court interpreted New York law to require that when two provisions in a contract conflict, the provision that appears earliest in the contract should be given effect. In this case, that would mean that the advance consent clause would govern. But the Second Circuit was concerned that General Obligations Law § 15-301 (1)—a statute that provides for the enforcement of “no oral modification” clauses in contracts— might require that the writing requirement supersede the advance consent clause. Thus, the Second Circuit certified the following question to us:

“Does New York General Obligations Law § 15-301(1) abrogate, in the case of a contract where the second of two irreconcilable provisions requires that any modifications to the agreement be made in writing, the common law rule that where two contractual provisions are irreconcilable, the one appearing first in the contract is to be given effect rather than the one appearing subsequent?” (Id. at 102.)

The Second Circuit authorized our Court “to expand, reformulate, or modify this question” (id.) and we have accepted both the certification and the invitation to reframe the inquiry. We now reformulate the question to read:

Where the second of two conflicting provisions in a guaranty requires that any modification to the agreement underlying the guaranty be made in writing and signed by the guarantor, does New York General Obligations Law § 15-301 (1) abrogate the common-law rules of contract interpretation that are traditionally used to determine which clause governs?

We answer this question in the negative.

General Obligations Law § 15-301 (1) provides:

“A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an ex-ecutory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent.”

The statute indicates that where a contract contains a “no oral modification” clause, that clause will be enforceable. The Second Circuit has inquired whether the statute does more than merely allow for the enforcement of a clause banning oral modifications, questioning whether, in the event of a conflict, the statute might require that a “no oral modification” provision take precedence over other contract terms. We conclude that the language in the statute does not support that interpretation, nor does the legislative history reveal any such legislative intent.

Under the common law, a contractual “no oral modification” clause was not enforceable because contracting parties were viewed as being able to waive such a clause, thereby orally amending their written agreement. As Judge Cardozo explained in Beatty v Guggenheim Exploration Co. (225 NY 380, 387-388 [1919] [citations and internal quotation marks omitted]):

“Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived. Every such agreement is ended by the new one which contradicts it . . . What is excluded by one act, is restored by another. You may put it out by the door; it is back through the window. Whenever two men contract, no limitation self-imposed can destroy their power to contract again.”

Since “no oral modification” clauses were not given effect under the common law, the only way to ensure that a written contract could not be changed through oral modification was to enter it under “seal” (see Cammack v Slattery & Bro., 241 NY 39, 45-46 [1925]). But, by the early twentieth century, use of the seal had become increasingly obsolete, as we noted in Cam-mack:

“While much has been said about the anachronistic absurdity of giving to seals at the present day the solemnity and force which they once justly possessed and while courts have undoubtedly been quite ready to escape from an alleged invalidity of a contract predicated upon failure to use a seal, nevertheless this court has been unwilling to make a decision generally annulling and destroying well-settled rules pertaining to the use of seals ... If the use of seals as now required is to be generally discontinued this result should be accomplished by the Legislature, which could make proper reservations preserving the integrity and force of contracts already executed” (id. at 45-46).

Accepting this Court’s suggestion, the Legislature passed a series of statutes in the 1930s that were intended to reduce the significance of the seal in some situations and altogether remove its effect in others. Yet there were ambiguities in these provisions that resulted in uncertainty concerning their enforcement (1941 NY Legis Doc No. 65 [M], at 13, discussing Cochran v Taylor, 273 NY 172 [1937]). It was against this backdrop that the Legislature passed the predecessor to General Obligations Law § 15-301 (1).

In 1941, at the recommendation of the New York Law Revision Commission, a statute was enacted that clearly abrogated the significance of the sealed document except in certain limited situations. At the same time, the Legislature adopted the predecessors to General Obligations Law § 15-301 (1)—two identically worded provisions that were codified as former Real Property Law § 282 and former Personal Property Law § 33-c:

“An executory agreement hereafter made shall be ineffective to change or modify, or to discharge in whole or in part, a written agreement or other written instrument hereafter executed which contains a provision to the effect that it cannot be changed orally, unless such executory agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought” (L 1941, ch 329, §§ 4, 5).

There is no doubt that this language “was intended in part to compensate for the demise of the seal” (DFI Communications v Greenberg, 41 NY2d 602, 606 [1977]). In its report urging enactment, the Law Revision Commission explained: “The seal has degenerated into an L. S. or other scrawl which, in modern practice, is frequently a printed L. S. upon a printed form. To the average man it conveys no meaning, and frequently the parties to instruments upon which it appears have no idea of its legal effects” (1941 NY Legis Doc No. 65 [M], at 15). The Commission asserted that “a method more appropriate than the use of the seal for permitting a party to a written agreement to protect himself against the danger of false claims of an oral modification, would be to make binding a stipulation to this effect contained in the original written instrument” (id.). This stance was echoed by the Association of the Bar of the City of New York, which supported the proposed legislation and observed that it “would change the effect of such decisions as that of Beatty v. Guggenheim Exploration Co.” (Mem of Assn of Bar of City of NY Comm on State Legislation, Bill Jacket, L 1941, ch 329, at 7).

Eight years after passage of the “no oral modification” statutes, we decided Green v Doniger (300 NY 238 [1949]), a case involving the interpretation of a written contract between a salesperson and his employer. The contract contained both a “no oral modification” clause and a provision that allowed either party to terminate the agreement upon 30 days’ written notice to the other. Although plaintiff, the salesperson, was not entitled to a bonus under the terms of the written contract, he alleged that he and his employer had mutually agreed to abandon the written contract one month after it was executed in favor of an oral agreement that provided him with a bonus. The employer moved to dismiss plaintiffs claim, arguing that, since there was no evidence that either party had notified the other in writing of an intent to terminate the contract, the written agreement remained in effect and its “no oral modification” clause precluded any bonus.

We held that former Personal Property Law § 33-c (1)—a predecessor to General Obligations Law § 15-301 (1)—did not prevent plaintiff from pursuing his claim. The Court reasoned that, if the “no oral modification” clause had been the only relevant provision in the contract, the statute would require its enforcement, thereby defeating plaintiff’s claim under the purported subsequent oral contract. But the “no oral modification” clause was necessarily limited by the provision allowing termination üpon 30 days’ written notice. Under the termination clause, either party could unilaterally discharge the contract without the signature or consent of the other. We therefore determined that the “no oral modification” statute applied only to the extent that the parties had incorporated it into their contract; it had no independent effect on the parties’ obligations, nor did it trump competing provisions within the same document. Since plaintiffs theory was not that the parties had orally modified the written agreement but that the written agreement had been vacated by mutual agreement—with the employer having waived the written notice requirement in the termination clause—we concluded that the employer could not rely on the “no oral modification” clause to defeat plaintiff’s claim.

In the aftermath of Green, the Legislature added provisions to the statute specifically addressing “termination upon written notice” clauses (L 1952, ch 831). The new subdivisions provided that, when parties agree that a written contract can be terminated on written notice (or that the agreement cannot be terminated orally), the requirement that the notice be written cannot be waived except in writing, nor can the parties mutually consent to abandon the contract and substitute another in its place unless there is a writing signed by the party against whom the termination or abandonment is sought to be enforced (L 1952, ch 831, adding provisions currently codified at General Obligations Law § 15-301 [2], [3], [4]). And, without altering the substance of the provision, the Legislature also reorganized the language in the “no oral modification” subdivision so that it reads as it does today.

The Legislature’s response to Green is notable not solely because of what it did but also because of what it did not do. In amending the statute, the Legislature addressed the “termination on written notice” issue raised in Green. But it did not disturb our determination that the statute’s impact on a dispute, if any, depends entirely on the language the parties chose in their contract. As a proponent of the legislation, the Law Revision Commission concurred with this aspect of the Court’s analysis, acknowledging that “the intent of the parties, as ascertained from the terms of the contract, governs the applicability of the statute” (1951 NY Legis Doc No. 65 [N], at 18).

This legislative history reveals that, in drafting General Obligations Law § 15-301 (1), the Legislature did not intend to interfere with the ability of parties to craft specific contract terms governing their rights; if parties decide to include a “no oral modification” clause in their agreement, the statute is intended to facilitate its enforcement. Section 15-301 (1) places this type of clause on the same footing as any other term in a contract. However, nothing in the history of the statute suggests that the Legislature sought to abrogate other common-law rules related to the interpretation of contracts, other than to extinguish the Beatty rule. As Green makes clear, when a “no oral modification” clause purportedly conflicts with another clause in a contract, every attempt should be made to harmonize the two provisions using common-law tools of contract interpretation. But section 15-301 (1) does not compel the enforcement of a “no oral modification” clause at the expense of other aspects of the parties’ agreement.

Turning to the contract in this case, the writing requirement in the guaranty differs from the typical “no oral modification” clause. As the statute suggests, such clauses commonly preclude oral modification of the agreement in which they appear. But the writing requirement here does not discuss modification of the guaranty; rather, it is directed to subsequent amendments to the employment agreements. There is no claim in this case that the guaranty was modified, nor was the adoption of a new payment schedule necessarily an amendment of the guaranty since the latter does not contain a payment schedule. In any event, assuming the writing requirement falls under the purview of the statute, we conclude that General Obligations Law § 15-301 (1) plays no role in determining whether the advance consent clause or the writing requirement takes precedence.

Finally, although we have not been asked to interpret the language in the guaranty, we note that this Court has not endorsed the “first clause governs” view of contract interpretation and we decline to do so now. Therefore, we have modified the certified question to remove any reference to that principle.

Accordingly, as reformulated, the certified question should be answered in the negative.

Judges Ciparick, Read, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question, as reformulated, answered in the negative.

      . Originally, under the common law, a seal was an impression made in wax or embossed on paper and affixed to a document (Garner, A Dictionary of Modern Legal Usage 784-785 [2d ed 1995]).

      . The law stated: “Except as otherwise expressly provided by statute, the presence or absence of a seal upon a written instrument hereafter executed shall be without legal effect” (L 1941, ch 329, § 2, adding former Civ Prac Act § 342).

      . As stated in 11 Lord, Williston on Contracts § 32:15:
      “Historically, one of the first answers provided by the courts for how to deal with conflicting clauses was to enforce the earlier clause and disregard the later. This approach is still followed today. Because of the arbitrary and artificial quality of this rule of interpretation, it is not universally followed and will only be accepted as a rule of last resort . . .
      “The better and apparent majority rule for resolving irreconcilable differences between contract clauses is to enforce the clause relatively more important or principal to the contract. This rule is tempered by the corollary that the more specific clause controls the more general” (11 Lord, Williston on Contracts § 32:15, at 507-510 [4th ed]).


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [905 NE2d 1175, 878 NYS2d 246]
    Eleanor Duffy, Appellant, v James M. Vogel et al., Respondents, et al., Defendant.
    Argued February 18, 2009;
    decided March 31, 2009

      POINTS OF COUNSEL

      Jonathan M. Landsman, New York City, for appellant.
    I. Denial of the “absolute right” to poll the jury mandates setting aside the verdict under long-standing New York case law. (Labar v Koplin, 4 NY 547; Matter of National Equip. Corp. v Ruiz, 19 AD3d 5; Brigham v Olmstead, 10 AD2d 769; Warner v New York Cent. R.R. Co., 52 NY 437; Knox v State Bank of Albany, 260 App Div 964; Muth v J & T Metal Prods. Co., 74 AD2d 898, 51 NY2d 745; Dore v Wyer, 1 AD2d 973; Goines v Pennsylvania R.R. Co., 208 Misc 103, 3 AD2d 307; Porret v City of New York, 252 NY 208; Spielter v North German Lloyd S.S. Co., 232 App Div 104.) II. Denial of the jury poll prejudiced plaintiff because the jury poll serves a distinct purpose separate from the reading of the verdict by the jury foreperson and because the jury’s damages verdict is worthless based on the jury’s liability verdict. III. The Appellate Division erred in assuming that a poll of the jury would not have changed the result. (People v Pickett, 61 NY2d 773; People v Francois, 297 AD2d 750; United States v Fiorilla, 850 F2d 172; People v Dean, 177 AD2d 792, 79 NY2d 855; People v Cortes, 173 AD2d 319, 78 NY2d 1075; United States v Spitz, 696 F2d 916; United States v Chigbo, 38 F3d 543, 516 US 826; United States v Gambino, 951 F2d 498, 504 US 918; Brooks v Bay State Abrasive Prods., Inc., 516 F2d 1003, 423 US 1090; United States v Carraway, 108 F3d 745, 522 US 891.) IV. The Appellate Division erred in ruling that a verdict sheet signed by each juror in the jury room is essentially the same as a jury poll in open court. (Dore v Wyer, 1 AD2d 973; Labar v Koplin, 4 NY 547; Warner v New York Cent. R.R. Co., 52 NY 437; Porret v City of New York, 252 NY 208; Spielter v North German Lloyd S.S. Co., 232 App Div 104; Luppino v Busher, 119 AD2d 554.) V. Plaintiff cannot show further prejudice because jurors may not impeach their own verdicts after being discharged. (Sharrow v Dick Corp., 86 NY2d 54; Kaufman v Eli Lilly & Co., 65 NY2d 449; Luppino v Busher, 119 AD2d 554;
      Brith Trumpeldor of Am. v Bermil Sales & Serv. Co., 16 Misc 2d 186, 17 Misc 2d 206; Russo v Jess R. Rifkin, D.D.S., P. C., 113 AD2d 570; Hoffman v Domenico Bus Serv., 183 AD2d 807; Labov v City of New York, 154 AD2d 348; Walden v Otis El. Co., 178 AD2d 878, 79 NY2d 758; Gamell v Mt. Sinai Hosp., 40 AD2d 1010; Wylder v Viccari, 138 AD2d 482.) VI. Denials of other “absolute rights” have led to new trials without a showing of prejudice. (People v Ciaccio, 47 NY2d 431; People v Mehmedi, 69 NY2d 759; People v Cain, 76 NY2d 119; Lunney v Graham, 91 AD2d 592; Baginski v New York Tel. Co., 130 AD2d 362; Guarnier v American Dredging Co., 145 AD2d 341; People v Morton, 189 AD2d 488; People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Perez, 65 NY2d 154.) VII. The jury trial is a constitutional right and denial of same has led to new trials without proof of prejudice. (Sharrow v Dick Corp., 86 NY2d 54; Gallegos v Elite Model Mgt. Corp., 28 AD3d 50.) VIII. Defense counsel were partially to blame for the trial court’s error; in any event, judicial errors can lead to new trials even if counsel are not to blame. (Barracca v St. Francis Hosp., 237 AD2d 396; Heiney v Pattillo, 76 AD2d 855; Serota v Kaplan, 127 AD2d 648; Butler v New York City Hous. Auth., 26 AD3d 352.) IX. The trial court properly set aside the verdict where it failed to poll the jury and clarify the jury’s intentions. (Bernard v Seyopp Corp., 11 AD2d 140, 9 NY2d 676; Mannara v Wein, 15 AD2d 564; Vera v Bielomatik Corp., 199 AD2d 132; Scaduto v Suarez, 150 AD2d 545; DiGiglio v Williams, 166 AD2d 499; Moisakis v Allied Bldg. Prods. Corp., 265 AD2d 457; Ciatto v Lieberman, 1 AD3d 553; Califano v Automotive Rentals, 293 AD2d 436; Roseingrave v Massapequa Gen. Hosp., 298 AD2d 377.)

      Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York City (Steven C. Mandell and Anthony J. Connors of counsel), for James M. Vogel, respondent.
    I. Assuming an absolute right to poll a jury and its violation, it was incumbent upon appellant— who failed—to demonstrate actual prejudice. (Sharrow v Dick Corp., 86 NY2d 54; Kaufman v Eli Lilly & Co., 65 NY2d 449; Glanton v New York Hosp., 175 AD2d 58; Gamell v Mt. Sinai Hosp., 40 AD2d 1010; Fox v United States, 417 F2d 84; Dalrymple v Williams, 63 NY 361; Porter v Milhorat, 26 AD3d 424; Moisakis v Allied Bldg. Prods. Corp., 265 AD2d 457; Labar v Koplin, 4 NY 547; Akin v Kellogg, 119 NY 441.) II. Absolute right or not, the denial of a request to poll a jury is subject to harmless error analysis. (Labar v Koplin, 4 NY 547; Matter of National Equip. Corp. v Ruiz, 19 AD3d 5; Dore v Wyer, 1 AD2d 973; Muth v J & T Metal Prods. Co., 74 AD2d 898; Funk v United States, 290 US 371; Humphries v District of Columbia, 174 US 190; Audette v Isaksen Fishing Corp., 789 F2d 956; United States v Friedman, 593 F2d 109; United States v Shepherd, 576 F2d 719, 439 US 852; Walker v United States, 322 F2d 434, 375 US 976.) III. Where, as here, the overwhelming weight of the evidence was such that there was no reasonable probability that the jury’s verdict would have been for appellant but for the trial court’s failure to poll the jury as requested, the failure to do so constituted harmless error. (People v Grant, 7 NY3d 421; People v Douglas, 4 NY3d 777; People v Morales, 80 NY2d 450; People v Bongarzone, 69 NY2d 892; People v Crimmins, 36 NY2d 230; People v Bragle, 88 NY 585; People v Jennings, 33 AD3d 378, 7 NY3d 926; People v Fulton, 28 AD3d 1180, 7 NY3d 756; People v Brooks, 26 AD3d 867, 6 NY3d 892; People v Ballard, 173 AD2d 480, 256 AD2d 349.)

      Heidell, Pittoni, Murphy & Bach, LLP, New York City (Daniel S. Ratner and Daryl Paxson of counsel), for Allan J. Jacobs, respondent.
    Appellant received a fair trial despite the failure to poll the jury. (Labor v Koplin, 4 NY 547; Warner v New York Cent. R.R. Co., 52 NY 437; Matter of National Equip. Corp. v Ruiz, 19 AD3d 5; Brith Trumpeldor of Am. v Bermil Sales & Serv. Co., 16 Misc 2d 186, 17 Misc 2d 206; Farhart v Matuljak, 283 App Div 977; Hernandez v Delgado, 375 F2d 584; People v Ciaccio, 47 NY2d 431; People v Mehmedi, 69 NY2d 759; People v Ahmed, 66 NY2d 307; People v Cain, 76 NY2d 119.)
   OPINION OF THE COURT

Chief Judge Lippman.

At the conclusion of a long and complex trial during which plaintiff sought to prove that defendant physicians had committed malpractice by failing to detect, diagnose and properly treat a tumor situated in her pelvis, the jury returned a verdict evidently exonerating defendants while purporting to award damages “for the plaintiff” in the amount of $1.5 million. Shortly after the verdict, plaintiff requested that the jury be polled to ascertain whether “each juror consents this is the verdict as read by the foreperson.” The request was denied as “unnecessary” and the jury discharged. The trial court would, however, subsequently acknowledge that it had erred in denying the poll and, on that ground, grant plaintiffs posttrial motion to set aside the verdict and declare a mistrial (2007 NY Slip Op 34280[U]). In the ensuing litigation, defendants have conceded that it was error not to poll the jury, yet urge that harmless error analysis may save the verdict.

In the decision and order now before us, brought up for review by plaintiff’s appeal as of right, pursuant to CPLR 5601 (d), from an Appellate Division order affirming the dismissal of her remaining claims (50 AD3d 319 [2008]), a divided Appellate Division panel agreed with defendants, and denied the previously granted motion to set aside the verdict. While the entire panel acknowledged that plaintiff had been entitled to have the jury polled and even that the entitlement was “absolute,” the majority viewed the error as one of form only, since, in its estimation, “the objective facts set forth amply demonstrated] that polling the jury would not have resulted in a different verdict” (Duffy v Vogel, 49 AD3d 22, 25 [1st Dept 2007]). This view was, at bottom, premised upon the manner in which the verdict had been rendered: each member of the jury had signed the verdict sheet in response to each of the answered interrogatories, the jury’s responses to the interrogatories had been uniformly unanimous, and during the foreperson’s recitation of the verdict in open court, no juror cried out in protest. The dissenters countered that “[i]t is simply impossible, short of clairvoyance, to decide that no juror in this case would change his or her mind upon being polled facing the litigants in open court” (id. at 32), and, accordingly, would have held that the trial court’s failure to honor plaintiff’s absolute right to have the jury polled required that the verdict be set aside, as the trial court had done.

We now reverse.

At common law, it was recognized that although jurors had agreed upon a verdict within the confines of the jury room and announced their verdict in open court, they might yet be examined by poll to determine whether they remained wedded to their verdict, and if it appeared that the verdict had been due to mistake or partiality, the jurors would, prior to the recording of the verdict, have an opportunity to “go together and consider the better of it, and alter what they have delivered” (2 Hale, History of the Pleas of the Crown, at 299-300 [1800 ed]). That jurors “should be enabled to avail themselves of the locus penitentiae, and correct a verdict which they have mistaken, or about which, upon further reflection, they have doubt” (Blackley v Sheldon, 7 Johns 32, 33-34 [1810]) has been recognized in the vast majority of jurisdictions, and the polling of jurors in open court has been viewed as essential to the provision of such a locus, since, without the device, the reservations of individual jurors about a verdict to which they may have assented in the enforced privacy of the jury room under misapprehension, pressure from fellow jurors or out of sheer exhaustion, would likely never gain timely expression.

In New York, we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict:

“It is a general rule, that no verdict is of any force but a public verdict given in open court; until that is received and recorded there is no verdict. When the jury come to the bar to deliver their verdict, all or any of them have a right to dissent from a verdict to which they had previously agreed. (Root v. Sherwood, 6 John. 68.) A verdict is not recognized as valid and final until it is pronounced and recorded in open court: the jury may change their mind and disagree as to their verdict after they have pronounced it in open court before it is received and entered on the minutes. After a verdict is rendered or announced and before it is entered, the jury may be examined by the poll, if the court please, and either of them may disagree to the verdict. ([.Blackley] v. Sheldon, 7 John. 32.) The expression in the last case, ‘if the court please,’ would seem to imply that the polling of the jury was in the discretion of the court; but in the case of Fox v. Smith, (3 Cowen, 23,) and Jackson ex dem. Fink and others v. Hawks, (2 Wend. 619,) it is decided to be the absolute right of a party to have the jury polled on their bringing in their verdict, whether it be sealed or oral, unless he has expressly agreed to waive that right” (Labar v Koplin, 4 NY 547, 550-551 [1851]).

That a verdict may not be deemed “finished or perfected” until it is recorded, and that it may not be validly recorded without a jury poll where one has been sought (see Warner v New York Cent. R.R. Co., 52 NY 437, 442 [1873]), have been uncontroversial propositions. Although we have not had the opportunity recently to reconsider them, they have been applied over the years with axiomatic force by New York’s intermediate appellate courts (see Brigham v Olmstead, 10 AD2d 769 [3d Dept 1960] [“Not until inquiry is made of the whole jury, not merely the foreman, as to their verdict, and it is duly entered by the Clerk is the verdict complete. Until it is thus announced there is no verdict”]; Muth v J & T Metal Prods. Co., 74 AD2d 898 [2d Dept 1980], lv dismissed 51 NY2d 745 [1980] [reinstatement of verdict following appellate denial of previously granted motion to set aside the verdict not possible because, in light of the trial court’s denial of defendant’s request to poll the jury, there was no valid verdict to reinstate]; see also Luppino v Busher, 119 AD2d 554, 556 [2d Dept 1986]; Ricchueto v County of Monroe, 267 AD2d 1012 [4th Dept 1999]; Matter of National Equip. Corp. v Ruiz, 19 AD3d 5, 12-14 [1st Dept 2005]). No cogent, principled argument is made for their revision here.

Inasmuch as, under New York law, the honor of a request for a jury poll is a necessary condition of a “finished or perfected” verdict, it follows that in this State’s courts the failure to poll a jury may never be deemed harmless. Harmless error analysis is a judicial device employed to sustain an already perfected verdict, not to perfect a verdict in the first instance.

A verdict in a jury trial is emphatically not a judicial construct. Indeed, it is hard to know upon what empirical basis a verdict untested in open court by direct inquiry of the individual jurors might be judicially deemed to be the final expression of the jury’s true intention. Here, it is important to understand that the relevant question is not whether the trial evidence was sufficiently persuasive to impel a hypothetical reasonable juror to vote in favor of the announced verdict, but rather whether each juror chosen by the parties to hear the case would, upon reflection, publicly affirm that the verdict agreed to in the jury room was the one he or she actually intended. The exercise of individual conscience involved is one whose outcome defies prediction.

Certainly, the prediction called for may not be based, as it was by the Appellate Division, on the circumstance that jurors have signed a verdict sheet. The proper publication of a verdict in open court, so long deemed essential to assure the integrity of the verdict, is not to be cast aside as a mere formality on the theory that jurors are prospectively bound to act in accordance with their verdict sheet signatures. Indeed, in Root v Sherwood (6 Johns 68, 68 [1810]), where the argument, here exactly reiterated, was made that “[t]he signing of the verdict is an express assent by each juror to the verdict, and is equivalent to a polling of the jury,” the court responded,

“There is no verdict of any force but a public verdict, given openly in court; until it was received and recorded it was no verdict, and the jury had a right to alter it as they may a private verdict. The previous agreement, that the jury might seal up their verdict, did not take away from the parties the right to a public verdict, duly delivered. There being then no legal verdict in this case, a new trial must be awarded.” (Id. at 69; see also Dore v Wyer, 1 AD2d 973, 974 [2d Dept 1956] [denial of plaintiff estate administrator’s request for a jury poll as “unnecessary” upon the ground that 10 jurors had signed the verdict sheet required reversal and a new trial since “(t)he administrat(or) had an absolute right to have the jury polled, and the denial of that right was serious error”].)

Nor can there be any conceptually viable contention that the outcome of the public polling sought was foregone since the jurors in the present case privately signed the verdict sheet in numerous places, particularly since, had they followed instructions and concluded their deliberations after finding that defendants had not been negligent, their signatures would have been significantly less numerous.

Finally, we do not think it sensible to expect that a juror would in open court spontaneously pipe up his or her disagreement with an announced verdict. Jurors who have been pushed to a verdict about which they have serious reservations are not likely moments later in the solemn and intimidating atmosphere of the courtroom attending the announcement of the verdict to feel free to express their reservations unless it is made clear that it is permissible to do so and an opportunity is provided.

It is doubtless true, as defendants point out, that the absolute right of a party to have a jury polled is rooted in the common law, and not in statutory or constitutional enactment. It is also true that in some jurisdictions, albeit a minority, there exists no such right, and in others the right is not viewed as absolute, but as one which may in limited circumstances be denied without impairing the verdict. None of this argues persuasively for treating the right of a litigant to have a jury polled as less than absolute in this jurisdiction. Jury polling ordinarily entails little additional burden in the conduct of a trial, yet is demonstrably efficacious in assuring that the trial’s outcome is in fact the true verdict of the particular jury chosen by the parties to hear the case. A jury verdict, once properly delivered may, of course, be subsequently sustained against claims of error upon evidentiary analyses that courts are equipped to perform. No court, however, may claim to know each juror’s conscience so as to retrospectively offer assurance that the verdict was in its initial iteration what its authors had actually intended. Only timely inquiry of jurors will disclose whether their announced verdict truly expresses their will, and it is for this reason, and not out of unreasoned devotion to antique forms, that the common-law insistence upon jury polling has persisted. Harmless error analysis in this context would amount to no more than a speculative exercise, impermissibly substituting the judgments of judges for those that would have been made and disclosed by jurors had their verdict been properly pronounced in open court.

Even if we were writing upon a clean slate, which we are not, we would not concur in the dissent’s view that it would be a good idea to treat the denial of a litigant’s right to have the jury polled as a kind of potentially harmless error. Contrary to the premise of the dissent, jury polling has never been justified on the ground that there is a high probability that it will uncover disparity between the announced verdict and what the jurors intended. Its justification rests instead upon the right of a litigant to a public verdict demonstrably that of the particular jurors chosen in the case. Long, and we think indispensable experience, has shown that that basic entitlement, so closely enmeshed with and protective of the right to trial by jury, may not be deemed secured in any individual case simply upon the foreperson’s announcement of a verdict—even one multiply subscribed—and that the claim to be able reliably to distinguish in hindsight the case in which the failure to honor the entitlement was or was not harmless is highly suspect and should not be adopted as a basis for law. While it is, from defendants’ perspective, doubtless nightmarish to face a new trial of this matter, sparing them a new trial upon the approach advocated by the dissent is an even less attractive option, prospectively involving courts too confident of their ability to discern what is in a juror’s mind in the unwitting validation of false verdicts and the concomitant deprivation of true verdicts.

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered.

Smith, J. (dissenting). The Court decides today that a failure to poll a civil jury on request can never be harmless error. This result is compelled by no statute and supported by no binding precedent. It results in a gross injustice in this case, and will no doubt do so in some future cases. And it is highly unlikely to do any practical good. Because I see no justification for this decision, I dissent.

Doctors James Vogel and Allan Jacobs were sued for medical malpractice. The case was tried for two weeks, and a jury decided in the doctors’ favor, filling out an 11 page verdict sheet containing 21 interrogatories. Five inapplicable questions were not answered, but the answers to the remaining 16 were all consistent, and every one of the 16 answers was signed by every juror. All the answers were unanimous, though a 5-1 verdict would have been valid (CPLR 4113 [a]). The foreperson announced all the answers in open court, and declared as to each one that the jury had answered unanimously.

After this, plaintiffs counsel asked for a poll of the jury, and the trial court mistakenly denied the request. For this reason, the majority holds, the whole trial was a waste of time and Doctors Vogel and Jacobs must undergo another one, running the risk that the second jury will disagree with the first.

The majority’s rationale for this nightmarish result seems to have three parts. One is verbal: the right to have a jury polled on request has been described as “absolute” (Labar v Koplin, 4 NY 547, 550 [1851], quoted in majority op at 174). The second is formal: “the honor of a request for a jury poll is a necessary condition of a ‘finished or perfected’ verdict” (majority op at 175). And the third claims to be practical: it is impossible to know, the majority says, what the result of a poll will be unless the poll is conducted (majority op at 175-177). I find all these reasons unconvincing.

We have indeed said that the right to the poll of a jury on request is “absolute.” But it is clear that we meant only that a denial of the request is always error—we have not answered the question whether the error may be harmless. The context in which we used “absolute” in Labar confirms this. After quoting from a case that had said “the jury may be examined by the poll, if the court please,” we went on to say:

“The expression in the last case, ‘if the court please,’ would seem to imply that the polling of the jury was in the discretion of the court; but in the case of Fox v. Smith, (3 Cowen, 23,) and Jackson ex dem. Fink and others v. Hawks, (2 Wend. 619,) it is decided to be the absolute right of a party to have the jury polled . (4 NY at 550-551.)

Thus, the right to a jury poll is “absolute” only in the sense that it is not a matter of discretion with the court. The “absolute” nature of the right does not imply that the denial of the right can never be harmless error. Indeed, most cases of harmless error involve the denial of rights that are “absolute” in that sense. If a court has discretion to grant or refuse a party’s request, the denial of it is ordinarily not error at all, and there is no occasion to consider whether the error is harmless.

The assertion that, where a request for a jury poll is not honored, the verdict is not “finished or perfected” is an abstraction, incapable of proof or disproof. It is true because the majority says it is true, and for no other reason. The formal logic on which it seems to rest is not even consistently applied. If the majority were to take that logic to its limit, it should hold that the poll is essential, whether a party requests it or not. If the verdict is not “finished or perfected” once it is read in open court, how can a party’s failure to request a poll finish or perfect it? Or, if it can, why cannot the harmlessness of an error in refusing a request finish or perfect it equally well? Whether to apply harmless error analysis should not turn on the answer to such scholastic riddles, but—since this is a situation in which our conclusion is compelled by no statute and no precedent—on whether permitting harmless error analysis would be a good idea.

The majority suggests it would not be a good idea because it is always possible that the error was not really harmless. The majority says, in substance: You never know until you ask whether there is a juror (though in this case it would be inconsequential unless there were two) who would not say “yes” to the question: “Is this your verdict?” According to the majority, “The exercise of individual conscience involved is one whose outcome defies prediction” (majority op at 175).

I will make a prediction: In almost every case, the poll will confirm the verdict as announced by the foreperson. There are experienced trial lawyers who have never seen a verdict upset by a jury poll—and others who have seen it once, and tell the story to the end of their days. The possibility that that rare event would occur in this case—a case in which the jury’s verdict was detailed, clear and specifically endorsed by every juror’s repeated signature, and in which defendants even had a vote to spare—is vanishingly small.

Of course, I cannot say I am absolutely certain that the trial court’s error here was harmless—but that can never be said, of any error. The sort of fanciful possibility that the majority relies on exists in every case, and if it were given the kind of weight the majority gives it here, the harmless error doctrine would not exist. We have many times found errors to be harmless where the chance that the error determined the result was significantly greater than it is in this case.

There is a fourth possible reason that might support the result the majority reaches—one the majority does not mention, but one that gives me a bit more pause. It is the possibility of abuse. As I have pointed out, a failure to poll a jury will usually— indeed almost always—in fact be a harmless error. Is there not then a risk that trial judges will be tempted to reject requests for jury polls, knowing that the harmlessness of the error will protect them from reversal?

I do not think so. I might feel differently if a jury poll were a burdensome procedure, or if there were some other reason trial judges might seek to avoid it—but it is short and simple, and I do not think that a jury poll is ever likely to be denied for any reason except the reason we have here: an honest mistake. Still, as a precaution, I might consider limiting the application of the harmless error doctrine to cases where there is a particularly strong reason to think the jury poll would not have changed the result. This is certainly such a case.

So far as I know, we have never before today held that a particular kind of error in a civil case cannot be harmless. That does not mean that no such errors exist. No doubt, for example, the wrongful denial of a trial by jury in a civil case would not be subject to harmless error analysis. Still, I find it puzzling indeed that, by virtue of today’s decision, we have afforded a sacrosanct status never before conferred on any right of a civil litigant to the quasi-medieval ritual of the jury poll.

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

Order reversed, etc.

       Although the early cases, such as Labar v Koplin (supra), in fact, required an express waiver if the jury was not to be polled, the entitlement is now deemed waived in the absence of a request.


author: Read, J.

text:
    [906 NE2d 387, 878 NYS2d 659]
    Mario Miguel Jaramillo, Appellant, v Weyerhaeuser Company, Respondent, et al., Defendants.
    Argued February 11, 2009;
    decided March 31, 2009

      POINTS OF COUNSEL

      Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh (James Alexander Burke of counsel), for appellant.
    I. Construing the evidence in the light most favorable to Mario Miguel Jaramillo, Weyerhaeuser Company is a “regular seller” of used Flexo Folder Gluers. (Sprung v MTR Ravensburg, 99 NY2d 468; Sukljian v Ross & Son Co., 69 NY2d 89; Brumbaugh v CEJJ, Inc., 152 AD2d 69; Velez v Craine & Clark Lbr. Corp., 33 NY2d 117; Bielicki v T.J. Bentey, Inc., 248 AD2d 657; Winckel v Atlantic Rentals & Sales, 159 AD2d 124; Mead v Warner Pruyn Div., Finch Pruyn Sales, 57 AD2d 340; Chandler v Northwest Eng’g Co., 111 Misc 2d 433; Kirby v Rouselle Corp., 108 Misc 2d 291; Weber v Johns-Manville Corp., 630 F Supp 285.) II. Strict products liability should be imposed under New York law on “regular sellers” of used goods in the circumstances presented by this case. (Stiles v Batavia Atomic Horseshoes, 81 NY2d 950; Gonzalez v Rutherford Corp., 881 F Supp 829; Nutting v Ford Motor Co., 180 AD2d 122; Sprung v MTR Ravensburg, 99 NY2d 468; Harber v Altec Indus., Inc., 812 F Supp 954; Voss v Black & Decker Mfg. Co., 59 NY2d 102; Velez v Craine & Clark Lbr. Corp., 33 NY2d 117; Denny v Ford Motor Co., 87 NY2d 248; Castro v QVC Network, Inc., 139 F3d 114; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376.)

      Goldberg Segalla, LLP, White Plains (Kevin Burns, Anita Hotchkiss and Matthew S. Lerner of counsel), for respondent.
    I. Weyerhaeuser Company is a casual seller of Flexo Folder Gluers and thus not subject to strict liability for the sale of the machine on which plaintiff injured himself. (Sukljian v Ross & Son Co., 69 NY2d 89; McCarthy v Checchin, 24 AD3d 1080; Burns v Haines Equip., 284 AD2d 922.) II. In the alternative, if this Court reaches the second portion of the certified question, it should reject the Galindo factors in favor of the majority rule and refuse to extend strict liability to regular sellers of used goods. (Nutting v Ford Motor Co., 180 AD2d 122; Bruce v Martin-Marietta Corp., 544 F2d 442; Consorti v Owens-Coming Fiberglas Corp., 86 NY2d 449; Sukljian v Ross & Son Co., 69 NY2d 89; Stiles v Batavia Atomic Horseshoes, 81 NY2d 950; Gebo v Black Clawson Co., 92 NY2d 387; Schumacher v Richards Shear Co., 59 NY2d 239; Semenetz v Sherling & Walden, Inc., 7 NY3d 194.)

      Theodore Hadzi-Antich, Sacramento, California, and Deborah J. La Fetra for Pacific Legal Foundation, amicus curiae.
    I. Used-goods sellers promote efficient markets that let low-income consumers buy goods they could not otherwise afford. (King v Damiron Corp., 113 F3d 93; Harber v Altec Indus., Inc., 812 F Supp 954, 5 F3d 339; Nitro Leisure Prods., L.L.C. v Acushnet Co., 341 F3d 1356; Gonzalez v Rutherford Corp., 881 F Supp 829; Cruz v Midland-Ross Corp., 813 F Supp 628; Sell v Bertsch & Co., Inc., 577 F Supp 1393; Saratoga Fishing Co. v J. M. Martinac & Co., 520 US 875; Champion Spark Plug Co. v Sanders, 331 US 125; Sukljian v Ross & Son Co., 69 NY2d 89; Rose v Brown & Williamson Tobacco Corp., 53 AD3d 80.) II. Many New York industries and the public sector rely on the used-goods market. (Torrington Indus., Inc. v Southworth-Milton, Inc., 17 AD3d 894.)

      Herzfeld & Rubin, P.C., New York City (Michael Hoenig, Miriam Skolnik and Linda M. Brown of counsel), and Hugh F. Young, Jr., Reston, Virginia, for Product Liability Advisory Council, Inc., amicus curiae.
    I. Sellers of their own used surplus equipment such as Weyerhaeuser Company should be deemed to be occasional or casual sellers not subject to strict products liability. (Sukljian v Ross & Son Co., 69 NY2d 89; Bruce v Martin-Marietta Corp., 544 F2d 442; Peinar v Rosen Sys., Inc., 964 F Supp 1277.) II. In any event, strict products liability, for significant policy reasons, should not apply to even regular sellers of used goods. (Wynia v Richard-Ewing Equip. Co., Inc., 17 F3d 1084; Harber v Altec Indus., Inc., 812 F Supp 954, 5 F3d 339; Sell v Bertsch & Co., Inc., 577 F Supp 1393; McCarthy v Checchin, 24 AD3d 1080; Frisbee v Cathedral Corp., 283 AD2d 806; Enright v Eli Lilly & Co., 77 NY2d 377; Galindo v Precision Am. Corp., 754 F2d 1212; Gonzalez v Rutherford Corp., 881 F Supp 829; Nutting v Ford Motor Co., 180 AD2d 122.) III. In any event, the Galindo test for determining whether an entity is an occasional or regular seller of used goods should not be adopted. (Galindo v Precision Am. Corp., 754 F2d 1212;
      Bruce v Martin-Marietta Corp., 544 F2d 442; Pelnar v Rosen Sys., Inc., 964 F Supp 1277.)
   OPINION OF THE COURT

Read, J.

The United States Court of Appeals for the Second Circuit has asked us whether a company that sold one of its used machines (itself purchased used) to a different company can be held strictly liable for a workplace accident involving that machine, which occurred 16 years later. In light of our precedents and the policy considerations underlying strict products liability, we answer the certified question in the negative.

I.

On March 9, 2002, plaintiff Mario Miguel Jaramillo seriously injured his right hand when he caught it between two rollers of an industrial Flexo Folder Gluer machine (FFG) that he was operating while working for his employer, Universal Glenwood Packaging Products Corporation, a manufacturer of corrugated containers, at its plant in Yonkers, New York. Jaramillo had worked for Glenwood for about five years and had operated the FFG uneventfully many times before.

In 1986, Glenwood purchased the FFG as a used machine from defendant Weyerhaeuser Company, an international forest products company with its principal place of business in the state of Washington. As part of its business, Weyerhaeuser operates numerous plants where cardboard boxes are fabricated from corrugated cardboard sheets; FFGs are used to make these boxes.

Weyerhaeuser’s Investment Recovery Business (IRB), the division through which the company generally disposes of its obsolete or unneeded equipment, marketed the FFG sold to Glenwood. The IRB distributes quarterly catalogs of items for sale, advertises in trade journals, telemarkets, and conducts market research on potential buyers and dealers of used equipment. The United States District Court for the Southern District of New York found that there was no genuine dispute of fact that the FFG was sold to Glenwood in “as-is, where-is” condition, and the Second Circuit agreed (Jaramillo v Weyerhaeuser Co., 2007 WL 194011, *1 n 7, 2007 US Dist LEXIS 7413, *5, n 7 [SD NY, Jan. 24, 2007], on appeal 536 F3d 140, 144 n 1 [2d Cir 2008]).

The IRB grossed somewhere between $7.5 million and $8.5 million in 1986, the year Glenwood bought the FFG involved in Jaramillo’s accident. This accounted for approximately .15% of Weyerhaeuser’s net sales of about $5.65 billion for that year. There is no evidence in the record to show Weyerhaeuser’s sales of used FFGs before 1986, but Jaramillo contends that Weyerhaeuser sold more than 60 FFGs from 1986 to 2006.

Older FFGs such as the one sold by Weyerhaeuser to Glen-wood have “open architecture,” or open spaces between operating sections that a worker can enter while the machine is running, which is what Jaramillo did when he injured his right hand. By contrast, “closed architecture” machines, as the name implies, do not permit entry. Open architecture machines may be retrofitted with a safety device to shut them down automatically if an open space is accessed; for example, an interlocking device or a safety mat, which causes the machine to stop when stepped on, may be installed. Weyerhaeuser has furnished some of its open architecture FFGs with interlocking devices, or has asked the manufacturer to do this. Further, the Second Circuit noted

“evidence that Weyerhaeuser owns patents related to technology used in FFGs, and that the company maintains relationships with FFG manufacturers. [Weyerhaeuser] has occasionally made recommendations to manufacturers about how to improve FFG design, including with regard to safety features. When it has detected safety issues with an FFG, the company has also sometimes suggested that the manufacturer install a new safety mechanism in the machine in question” (536 F3d at 143).

The FFG involved in Jaramillo’s accident was originally manufactured in about 1964 by S&S Manufacturing, a Brooklyn-based company that went bankrupt around 1986; it was sold new to the General Foods company. Weyerhaeuser purchased the FFG from General Foods in 1971 for roughly $36,500, and placed the machine in its Lynchburg, Virginia box plant. Weyerhaeuser added new parts to the FFG over the years and replaced worn ones, at a total cost of about $282,000, but did not change the safety mechanisms installed by S&S in the original manufacture. The machine was disassembled in Virginia by a Glenwood employee, and transported to Yonkers, where it was reassembled at the Glenwood plant.

Jaramillo filed a complaint in Supreme Court against Weyerhaeuser, seeking damages for his personal injuries. Jaramillo’s claim against Weyerhaeuser sounded principally in strict products liability. He argued that by 1986 open architecture FFGs were defective if not equipped with a safety device to shut off operation in the event a person or a foreign object, such as a human extremity, was sensed in the machine’s open spaces, and that Weyerhaeuser did not add any such device to the FFG that it sold to Glenwood that year.

On March 7, 2003, Jaramillo’s suit was removed to federal court. On May 22, 2006, Weyerhaeuser sought summary judgment on the basis that it was a casual seller of FFGs and therefore was not strictly liable under New York law for any defects. On June 20, 2006, Jaramillo cross-moved for summary judgment on the issue of whether Weyerhaeuser was an ordinary seller of FFGs, potentially subject to strict products liability.

On January 24, 2007, the District Court Judge granted Weyerhaeuser’s motion for summary judgment, denied Jaramillo’s cross motion, and dismissed the complaint. The Judge noted that “[t]he New York Court of Appeals has held that strict products liability is imposed on manufacturers and sellers who engage in product sales in the ordinary course of their business” (Jaramillo, 2007 WL 194011 at *3, 2007 US Dist LEXIS 7413 at *10, citing Sprung v MTR Ravensburg, 99 NY2d 468, 473 [2003]), but has limited “the duty of a casual or occasional seller . . . [to] warn[ing] the person to whom the product is supplied of known defects that are not obvious or readily discernible” (2007 WL 194011 at *3, 2007 US Dist LEXIS 7413 at *11-12, quoting Sukljian v Ross & Son Co., 69 NY2d 89, 97 [1986] [internal quotation marks omitted]). “This is so because unlike the manufacturer or the seller of a product in the normal course of business, the occasional seller is not part of the regular commercial network for that product” (2007 WL 194011 at *3, 2007 US Dist LEXIS 7413 at *12, quoting Sukljian, 69 NY2d at 97 [internal quotation marks omitted; citations omitted by District Court]).

Acknowledging that there was no controlling authority from our Court requiring a ruling in his favor, Jaramillo “urge[d]” the District Court Judge “to adopt dicta in Sukljian and find that under these facts defendant [was] a regular seller of the machine” (2007 WL 194011 at *4, 2007 US Dist LEXIS 7413 at *13). The Judge “decline[d] plaintiff’s invitation” for three reasons: “First, . . . the facts . . . [were] not. . . meaningfully distinguishable from those that the Sukljian court found supportive of a casual seller finding. Second, a policy analysis supported] a casual seller holding. Third, on the facts of this case, there [was] no cogent reason to impose strict liability” (id.).

Jaramillo appealed the District Court’s order. In an opinion and order issued August 1, 2008, the Second Circuit discussed the current state of strict products liability law in New York at length. Citing Sukljian, the court noted that New York courts make a distinction between “ ‘ordinary’ or ‘regular’ sellers of a product—those who sell the product on a regular basis, through the ordinary course of business,” who are “strictly liable for injuries caused by any manufacturing, design, or warning defect”; and “ ‘casual’ or ‘occasional’ sellers—those who sell the product in sporadic transactions that are incidental to their businesses,” whose “liability . . . extends only insofar as it fails ‘to warn the person to whom the product is supplied of known defects that are not obvious or readily discernible’ ” (Jaramillo, 536 F3d at 145). The court observed that “whether the doctrine of strict products liability applies to regular sellers of used goods is an open question in New York” (id., citing Stiles v Batavia Atomic Horseshoes, 81 NY2d 950, 951 [1993]).

The Second Circuit recited the “two principal reasons” that we have given “for imposing strict products liability on ordinary sellers”:

“The first is that those who sell products in the normal course of business, by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation . . . The second is that those who market products as a regular part of their businesses may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their goods” (Jaramillo, 536 F3d at 145-146, quoting Sukljian, 69 NY2d at 95 [internal quotation marks omitted]).

By way of contrast, the occasional seller “has neither the opportunity, nor the incentive, nor the protection of the manufacturer or seller who puts that product into the stream of commerce as a normal part of its business, and the public consumer does not have the same expectation when it buys from such a seller” (id. at 146, quoting Sukljian, 69 NY2d at 96 [internal quotation marks omitted]).

Commenting that “[w]hile the reasons behind the ordinary seller rule and occasional seller exception [were] clear, where to draw the line between ordinary and occasional sellers [was] not,” the court next examined “[t]he principal case on which Jaramillo relie[d] to argue that Weyerhaeuser [was] an ordinary seller of used FFGs”—the decision by the United States Court of Appeals for the Fifth Circuit in Galindo v Precision Am. Corp. (754 F2d 1212 [5th Cir 1985]) (Jaramillo, 536 F3d at 146). In Galindo, the Fifth Circuit suggested that a business selling its obsolete assets could be held strictly liable for defects in those products under Texas law where certain hypothetical circumstances existed: specifically, a policy of replacing the equipment at all of its facilities at regular intervals; a division or department devoted to selling the retired equipment; widespread advertising; and substantial revenues from this activity (see Galindo, 754 F2d at 1219). The Second Circuit also reviewed our decision in Sukljian, where we discussed the Galindo hypothetical (see Sukljian, 69 NY2d at 96-97).

Concluding that

“resolution of the summary judgment motions turn[ed] principally on . . . whether the New York courts would recognize the Galindo hypothetical as a case where strict liability should be imposed, and whether the facts of this case [were] sufficiently similar to that hypothetical such that Weyerhaeuser should be deemed an ordinary seller of used FFGs,” the Second Circuit certified the following question to us: “Construing the evidence in the light most favorable to Jaramillo, is Weyerhaeuser Company a ‘regular seller’ of used Flexo Folder Gluers such that it can be held strictly liable under New York law?” (Jaramillo, 536 F3d at 147, 149.)

II.

We have long held that “ [m] anufacturers of defective products may be held strictly liable for injury caused by their products” (Sukljian, 69 NY2d at 94, citing Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106 [1983] [additional citations omitted]). “Imposition of this onerous liability rests largely on considerations of public policy” (Sukljian, 69 NY2d at 94-95). Unlike manufacturer strict liability, however, which applies broadly, “not every seller is subject to strict liability” (id. at 95 [emphasis added]). As we explained in Sukljian-.

“The policy considerations that have been advanced to justify the imposition of strict liability on manufacturers and sellers in the normal course of business obviously lack applicability in the case of a party who is not engaged in the sale of the product in issue as a regular part of its business. (See, Restatement [Second] of Torts § 402 A, comment f, concluding: ‘This Section is also not intended to apply to sales of the stock of merchants out of the usual course of business, such as execution sales, bankruptcy sales, bulk sales, and the like.’) The casual or occasional seller of a product does not undertake the special responsibility for public safety assumed by those in the business of regularly supplying those products, nor is there the corollary element of forced reliance on that undertaking by purchasers of such goods. As a practical matter, the occasional seller has neither the opportunity, nor the incentive, nor the protection of the manufacturer or seller who puts that product into the stream of commerce as a normal part of its business, and the public consumer does not have the same expectation when it buys from such a seller. We recognized, for example, in Gobhai v KLM Royal Dutch Airlines (57 NY2d 839 [1982], affg 85 AD2d 566 [1st Dept 1981]) . . . that where distribution of an allegedly defective product is incidental to defendant’s regular business the principles of strict products liability have no relevance” (69 NY2d at 95-96).

In Sukljian, an employee of Ardex Corporation injured his hand while cleaning the rollers of a high-speed, three-roll grinding mill manufactured and sold by Charles Ross & Son Company Inc. to General Electric Company (GE) in January 1962. In June 1973, more than 11 years after its purchase of the mill, GE decided the machine was no longer needed and included it as part of a June 1973 sale of surplus property where several hundred lots were offered. There was evidence that GE held two or three sales of surplus equipment a year, but no evidence that the company derived any profit therefrom. The terms of the June 1973 sale were “As Is, Where Is,” and it was unclear how well-publicized the sale was—the only evidence of publicity was a snippet from an internal GE memorandum, which stated in its entirety “will be taken to advertise the sale through the various medias available, such as newspapers, trade magazines, trade papers, etc.” (Sukljian, 69 NY2d at 93.) The mill was sold by GE for $35 and subsequently resold multiple times until it ended up in the hands of Ardex, where the accident victim worked. The accident occurred in 1978, five years after the mill was sold as surplus by GE; the victim’s father brought suit against GE on a theory of strict products liability.

Considering these facts, we specifically held that a “corporation that sold a machine previously used in its own production as surplus property was not liable to remote purchasers ... in strict products liability . . . for injuries allegedly resulting from a defect in the machine, and should have been awarded summary judgment dismissing the complaint” (id. at 92). Despite the facts that GE regularly held sales of surplus equipment, that these sales were quite extensive (although not especially lucrative), and that they were apparently publicized (although the amount of publicity was in dispute), we flatly rejected the “assertion] that there is a question of fact whether [GE] was in reality in the regular business of a second-hand equipment dealer” (id. at 96), an assertion explicitly relying on Galindo.

In Galindo itself, the court was faced with a strict products liability claim against the Georgia-Pacific Corporation, which operated more than 240 sawmills and plants and regularly sold its used sawmill equipment to dealers. The plaintiff in Galindo was severely injured while operating a sawmill trimmer that Georgia-Pacific sold used to someone who sold it to a company that, in turn, sold it to the plaintiff’s employer. The Fifth Circuit “d[id] not believe that it necessarily follow[ed]” under Texas law “that getting rid of the depreciated equipment used for production of the goods and services that constitute the business of the seller can never constitute a business in which the seller is engaged” (Galindo, 754 F2d at 1219 [internal quotation marks omitted]), and hypothesized a particular situation in which the policies underlying strict products liability might exist in this context. In particular, the Fifth Circuit

“[s]uppose[d], for example, that Georgia-Pacific [had] a policy of purchasing new equipment at all of its sawmills every five years. Suppose further that Georgia-Pacific [had] a division or department devoted to selling the used equipment, that the department advertise[d] the availability of equipment on a widespread basis, and that it realize[d] substantial revenues from this activity. Clearly, on such facts, Georgia-Pacific would not be exempted from [strict products] liability simply because the equipment [was] used” (id.).

In Sukljian, we distinguished Galindo on the facts. We also explicitly declined to recognize its reasoning, stating that

“[e]ven if we were to recognize that liability might be imposed in a case such as hypothesized in Galindo . . . [t]here is no basis in the undisputed facts before us to support an inference that [GE], in incidentally disposing of the mill at a surplus equipment sale in the manner it did, undertook any special responsibility to the public for product safety, or was perceived by the public as having done so, or was better able to spread any loss caused by such defective products, making it more equitable to impose such loss on the seller. While we recognize that more than the single or isolated sale of a jam jar, a pound of sugar or an automobile described in the Restatement (Restatement [Second] of Torts § 402 A, comment f) is at issue here, still the principle is the same whether an individual, or an airline, or a huge corporation disposing of its surplus equipment in an occasional sale is involved: there is no basis in public policy for the imposition of strict liability” (Sukljian, 69 NY2d at 96-97).

Seven years later in Stiles, we reaffirmed Sukljian. In Stiles, the plaintiff was injured while operating a punch press owned by his employer, which had purchased the press in used condition from Batavia. Batavia bought five punch presses at auction, kept two and resold the other three, including the one sold to the plaintiffs employer (see Stiles v Batavia Atomic Horseshoes, 174 AD2d 287, 289 [4th Dept 1992]).

The jury awarded damages to the plaintiff, “concluding] that Batavia was a regular seller of used goods and thus, under the court’s instructions, accountable to plaintiff under the theory of strict products liability” (Stiles, 81 NY2d at 951). We found the trial court’s affirmed finding of fact that defendant “engaged in sales of equipment as a ‘regular part of its business’ ” to be unsupported by the record (id.), despite evidence, cited in the Appellate Division’s decision, that “during the two years Batavia was in business, Batavia bought and resold used industrial machinery on at least two other occasions, one before and the other after the auction at which Batavia bought the punch press in question,” and “that on each occasion Batavia realized a substantial profit on the sale of the used machinery” (Stiles, 174 AD2d at 290).

We noted, however, that “Batavia’s business was the manufacture and sale of horseshoes,” and that on the three occasions when it had engaged in the purchase and resale of industrial equipment, “it purchased [the] used equipment in lots intending to keep much of the machinery for its own purposes”; indeed, “[t]he press sold to [the plaintiffs employer] was never unloaded at Batavia, but instead [was] sold directly off the truck that had transported it from an equipment auction and was in the possession of Batavia at its facility for approximately one hour before [the plaintiffs employer] took delivery of it” (Stiles, 81 NY2d at 951). Because we concluded that “this evidence fail[ed] as a matter of law to support a finding that Batavia was a regular seller of used goods,” we did “not reach the question reserved in Sukljian and submitted by the parties to [the] appeal, i.e., whether the doctrine of strict products liability applies to regular sellers of used goods” (id.).

This case is controlled by Sukljian and the policy considerations underlying our holding in that case. The “onerous” burden of strict liability is only imposed on “certain sellers” because of “continuing relationships with manufacturers” and a “special responsibility to the public, which has come to expect [these sellers] to stand behind their goods” (Sukljian, 69 NY2d at 94-95). The second of these policy goals is clearly absent here: buyers of Weyerhaeuser’s used (third-hand, in fact) equipment at irregularly-scheduled “as is, where is” surplus sales cannot reasonably “expect [Weyerhaeuser] to stand behind [someone else’s] goods.” As to the first policy goal, while Weyerhaeuser may have had a closer relationship with FFG manufacturers than a customer would have with a supplier of run-of-the-mine equipment not unique to its particular industry, this relationship was still general in nature and even more attenuated with respect to the FFGs that Weyerhaeuser sold as surplus. Indeed, the FFG involved in Jaramillo’s accident was actually bought used by Weyerhaeuser from a third party rather than new from an FFG manufacturer. Simply put, there is no reason to believe that imposing strict liability on Weyerhaeuser’s sales of its scrap, used FFGs would create any measurable “pressure for the improved safety of products” on FFG manufacturers. Indeed, the most likely effect would be exactly what the District Court predicted: Weyerhaeuser would stop selling its used machinery, thus depriving small businesses of the ability to purchase otherwise unaffordable equipment.

While there may be some imaginable future case in which the facts justify imposition of strict products liability on a seller of used goods, this case is not—just as Sukljian and Stiles were not—that case. In sum, ‘‘[c]onstruing the evidence in the light most favorable to Jaramillo,” Weyerhaeuser Company is not a “ ‘regular seller’ of used Flexo Folder Gluers such that it can be held strictly liable under New York law” (Jaramillo, 536 F3d at 149).

Accordingly, the certified question should be answered in the negative.

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.


author: Smith, J.

text:
    [905 NE2d 1167, 878 NYS2d 238]
    Charlene McLean, Individually and as Mother and Natural Guardian of Briana Hall, an Infant, Respondent, v City of New York, Appellant, et al., Defendants.
    Argued February 19, 2009;
    decided March 31, 2009

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Edward F.X. Hart, Stephen J. McGrath and Leonard Koerner of counsel), for appellant.
    The City of New York is not liable for plaintiff infant’s injuries because the City neither placed the infant in Patricia Theroulde’s care nor advised her mother to place the child with Theroulde, because the statutory scheme pursuant to which plaintiff sued does not create a private right of action and because no special duty of care or reliance thereon existed between the City and plaintiff. (Lauer v City of New York, 95 NY2d 95; Tango v Tulevech, 61 NY2d 34; Mark G. v Sabol, 93 NY2d 710; Pelaez v Seide, 2 NY3d 186; Sheehy v Big Flats Community Day, 73 NY2d 629; Uhr v East Greenbush Cent. School Dist., 94 NY2d 32; Haggerty v Diamond, 251 AD2d 455; Carossia v City of New York, 39 AD3d 429; Sean M. v City of New York, 20 AD3d 146; Smullen v City of New York, 28 NY2d 66.)

      Sullivan Papain Block McGrath & Cannavo P.C., New York City (Brian J. Shoot of counsel), and John J. Appell for respondent.
    I. Irrespective of whether defendant City of New York owed plaintiffs a “special duty” of care, there are, at the very least, triable issues of fact concerning whether the City should stand liable at common law for its plainly negligent performance of admittedly ministerial functions. (Tango v Tulevech, 61 NY2d 34; Lauer v City of New York, 95 NY2d 95; Florence v Goldberg, 44 NY2d 189; Steitz v City of Beacon, 295 NY 51; Mon v City of New York, 78 NY2d 309; Kovit v Estate of Hallums, 4 NY3d 499; Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Haddock v City of New York, 75 NY2d 478; Arteaga v State of New York, 72 NY2d 212; Mosher-Simons v County of Allegany, 99 NY2d 214.) II. Assuming, arguendo, that defendant City of New York owed plaintiffs no duty in the absence of a “special relationship” with plaintiffs, there are, at the least, triable issues of fact as the existence of such a relationship and as to whether the City negligently breached the duty imposed by that relationship. (Pelaez v Seide, 2 NY3d 186; Sanchez v State of New York, 99 NY2d 247; Schuster v City of New York, 5 NY2d 75; Garrett v Holiday Inns, 58 NY2d 253; Mark G. v Sobol, 93 NY2d 710; Sean M. v City of New York, 20 AD3d 146; Merice v County of Westchester, 305 AD2d 383; Barnes v County of Nassau, 108 AD2d 50; Bartels v County of Westchester, 76 AD2d 517; Blanca C. v County of Nassau, 103 AD2d 524.) III. There are triable issues of fact concerning whether defendant City of New York’s negligence should, in addition, subject it to statutory liability under the Social Services Law. (Pelaez v Seide, 2 NY3d 186; Sheehy v Big Flats Community Day, 73 NY2d 629; Uhr v East Greenbush Cent. School Dist., 94 NY2d 32; Mark G. v Sabol, 93 NY2d 710.)
   OPINION OF THE COURT

Smith, J.

Once again we confront a case in which a failure by government to do its job has caused harm, and once again we hold that this is not one of the few cases in which such a failure subjects the government to tort liability.

I

Patricia Theroulde had a business caring for young children at her home in Manhattan. Her facility was of the kind classified by the Social Services Law as a “family day care home”— “a program caring for children for more than three hours per day per child in which child day care is provided in a family home for three to six children” (Social Services Law § 390 [1] [e]). Family day care homes are not licensed by the State, but are required to register with the State Department of Social Services (DSS) (id. § 390 [2] [b]). A registration is valid for two years (id. § 390 [2] [d] [ii] [A]), and an application for the renewal of registration may not be accepted unless “the office of children and family services [OCFS] has received no complaints . . . alleging statutory or regulatory violations” or, having received such complaints, OCFS has inspected the home and determined that it is operated in compliance with law (id. § 390 [2] [d] [ii] [B] [4]). DSS entered into a contract with the New York City Department of Health (DOH), in which DOH in substance agreed to perform DSS’s registration duties in New York City.

Ms. Theroulde registered in 1997. During the two year period of her initial registration, the New York City Administration for Children’s Services (ACS) received two complaints about her home, asserting that her husband had dipped a child’s hand into a bowl of hot oatmeal, and that a child had been left alone for an hour and a half in a nearby store. ACS investigated the complaints and found both of them to be “indicated”—i.e., substantiated. There is no evidence that the home was later inspected and found to be in compliance, so it seems clear that Ms. Theroulde should not have been permitted to renew her registration when it expired in 1999.

But DOH did permit her to renew. The reasons for this are not entirely clear. The record does not show whether ACS reported the two complaints about Ms. Theroulde’s home to OCFS—but that question is academic, because, amazingly, DOH did not make a practice of checking with OCFS before renewing registrations. It is debatable whether the City or the State is to blame for this failure; DOH, a city agency, says it complied with regulations of DSS, a state agency, which do not expressly require a search for complaints prior to renewal of a registration. Since we consider the case on a motion for summary judgment, we assume that DOH was at fault.

Ms. Theroulde’s renewed registration certificate was issued on February 11, 1999. In October of the same year, plaintiff, Charlene McLean, was searching for a day care provider for her soon-to-be-born child. She called ACS, which sent her a list of providers near her home. The list was taken from DOH’s database of registered providers, and Ms. Theroulde’s name was on the list.

In the course of obtaining the list from ACS, Ms. McLean had a telephone conversation with an ACS representative. According to Ms. McLean’s version of the conversation, she specifically asked for “a licensed baby-sitter that gets investigated routinely by your office.” She testified that the conversation continued: “ ‘Yes. All of our day cares are licensed and they get investigated routinely between six months to a year.’ And then I said, ‘They don’t have any complaints,’ and she assured me that all of the ones on the list have no complaints.”

After Ms. McLean’s daughter Briana was born, Ms. McLean placed her in Ms. Theroulde’s care. It is a fair interpretation of the evidence (though the City disputes the point) that she did so in reliance on information the City provided—that she would not have chosen Ms. Theroulde as a day care provider but for the inclusion of Ms. Theroulde’s home on a city-generated list, and the information about that list provided by an ACS representative on the phone. When Briana was three months old she fell from a bed to the floor while in Ms. Theroulde’s care, and suffered a brain injury.

Ms. McLean brought this action against the City on Briana’s and her own behalf, claiming that the City’s negligence was the cause of the injury. Supreme Court denied the City’s motion for summary judgment (14 Misc 3d 922 [2007]), and the Appellate Division affirmed (49 AD3d 393 [2008]). The Appellate Division granted leave to appeal to us on a certified question, and we now reverse.

II

We have long followed the rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed “a special duty to the injured person, in contrast to a general duty owed to the public” (Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]; see also e.g. Kircher v City of Jamestown, 74 NY2d 251 [1989]; Lauer v City of New York, 95 NY2d 95 [2000]; Pelaez v Seide, 2 NY3d 186 [2004]; Laratro v City of New York, 8 NY3d 79 [2006]). Such a duty, we have explained—“a duty to exercise reasonable care toward the plaintiff’—is “born of a special relationship between the plaintiff and the governmental entity” (Pelaez, 2 NY3d at 198-199). Here, Ms. McLean has not shown a special relationship giving rise to a special duty, and so cannot recover against the City.

As we said in Pelaez:

“A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation.” (2 NY3d at 199-200 [citation omitted]; see also Garrett, 58 NY2d at 261-262.)

Ms. McLean relies on the first two of these ways. She says that Social Services Law § 390, which governs the licensing and registration of child day care providers, creates a statutory duty for the benefit of a class of which she and her daughter are members; and also that the City voluntarily assumed a duty that she justifiably relied on the City to perform. We reject both arguments.

Statutory Duty

In Pelaez, we elaborated further on the “statutory duty” prong of the special relationship rule. We said:

“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]). If one of these prerequisites is lacking, the claim will fail.” (2 NY3d at 200.)

Here, as in Pelaez and Sheehy, the claim fails the last of these tests. To recognize a private right of action under Social Services Law § 390 would be inconsistent with the legislative scheme.

Section 390 is a detailed statute, with 13 subdivisions and many more subparts, occupying 10 pages of McKinney’s Consolidated Laws. It specifies which child care providers shall be licensed and which only registered (Social Services Law § 390 [2] [a]-[c]); sets out some prerequisites for registration (id. § 390 [2] [d] [ii] [B]); requires OCFS to establish, by regulation, requirements for licensed and registered providers (id. § 390 [2-a]); provides for inspections and investigations (id. § 390 [3] [a], [d], [e] [iii]; [4] [a]); requires certain information to be available to the public (id. § 390 [8]); authorizes OCFS to prevent noncompliant providers from caring for children (id. § 390 [3] [e] [ii]); provides for denial, suspension and revocation of licenses and registrations for violations of law (id. § 390 [10]); and requires OCFS to establish civil penalties for such violations (id. § 390 [11]). Social Services Law § 389 (1) imposes criminal liability for willful violations of the provisions of the Social Services Law, including section 390. But there is no statutory provision for governmental tort liability. It is fair to infer that the Legislature considered carefully the best means for enforcing the provisions of Social Services Law § 390, and would have created a private right of action against erring government agencies if it found it wise to do so. This is not a case where the Legislature has simply prohibited or required certain conduct, and left the mechanism of enforcement to the courts (see e.g. Negrin v Norwest Mtge., 263 AD2d 39, 47-48 [2d Dept 1999]).

We addressed a similar issue in Mark G. v Sabol (93 NY2d 710 [1999]). The plaintiffs there, children alleging that they had suffered abuse or neglect in the foster homes where they had been placed by New York City child welfare officials, sought recovery from the City, relying on provisions of the Social Services Law designed to protect foster children and to prevent child abuse generally. Emphasizing the detailed, comprehensive nature of the statutes the plaintiffs relied on, we rejected their claim that those statutes implied a private right of action. “[I]t would be inappropriate,” we said, “for us to find another enforcement mechanism beyond the statute’s already ‘comprehensive’ scheme. . . . Considering that the statute gives no hint of any private enforcement remedy for money damages, we will not impute one to the lawmakers” (93 NY2d at 720-721). We reach a like conclusion here.

Duty Voluntarily Assumed

Nor is this one of the narrow class of cases in which a “special relationship” can arise from a duty voluntarily undertaken by a municipality to an injured person. We listed the elements of such a special relationship in Cuffy v City of New York (69 NY2d 255, 260 [1987]):

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.”

These elements simply are not present here. Ms. McLean points to no “promises or actions” by which the City assumed a duty to do something on her or her daughter’s behalf. The City’s duty to Ms. McLean and Briana was neither more nor less than its duty to any other parent and child in need of day care. Indeed, the only “direct contact” between the City and Ms. McLean was a routine telephone conversation in which an ACS employee agreed to send a list of registered providers and answered questions about what registration meant. Though we assume that the employee was negligent in answering the questions and that her negligence caused injury, the City is not liable. The relationship between the City and Ms. McLean was not “special,” as our cases use that term.

Ill

We have rejected Ms. McLean’s argument that this case fits a recognized category of special relationship. But Ms. McLean also argues that she can prevail without fitting her case into such a category. She argues that no special relationship is needed, because the acts and omissions on which she relies were ministerial rather than discretionary; and that, if a special relationship is required, we should recognize a new category that includes her and Briana’s relationship with the City. We find these arguments unpersuasive.

The Ministerial/Discretionary Distinction

Our cases on governmental tort liability have long distinguished between discretionary and ministerial acts of government officials. In Tango v Tulevech (61 NY2d 34, 40 [1983]), we made clear that discretionary acts may not be a basis of liability: “[W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice.” We added that “when the action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command.” (Id.) In Lauer (95 NY2d at 99-100), we elaborated on Tango, repeating that a public employee’s discretionary acts “may not result in the municipality’s liability even when the conduct is negligent,” but adding that even negligent ministerial acts are not “otherwise tortious” where a plaintiff cannot show “a duty running directly to the injured person.” Even where an act is ministerial, we said, “[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally” (id. at 100).

Thus Tango and Lauer hold that discretionary municipal acts may never be a basis for liability, while ministerial acts may support liability only where a special duty is found. These cases contradict Ms. McLean’s argument that, because the acts for which she sues are ministerial, no special duty or special relationship need be established.

Ms. McLean relies, however, on admittedly confusing language in two more recent cases. In Pelaez, we said: “As a rule, municipalities are immune from tort liability when their employees perform discretionary acts . . . . In a narrow exception to the rule, we have upheld tort claims when plaintiffs have established a ‘special relationship’ with the municipality” (2 NY3d at 193). And in Kovit v Estate of Hallums (4 NY3d 499, 505 [2005]), we said, citing Pelaez: “municipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, except when plaintiffs establish a ‘special relationship’ with the municipality.” If these comments are taken to mean that the special duty/special relationship rule applies to discretionary rather than ministerial acts, then Tango and Lauer on the one hand, and Pelaez and Kovit on the other, seem inconsistent.

If there is an inconsistency, we resolve it now: Tango and Lauer are right, and any contrary inference that may be drawn from the quoted language in Pelaez and Kovit is wrong. Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general. The holdings of Pelaez and Kovit are consistent with this principle. In each of those cases we found no special relationship or special duty. Thus there could be no liability, whether the actions at issue were characterized as ministerial or discretionary.

Here, we assume, in Ms. McLean’s favor, that the conduct she complains of was ministerial. Because, for the reasons we have explained, she has shown no special duty, there can be no liability.

The Argument for a New Category of Special Relationship

Ms. McLean’s other argument—that we should recognize a new category of special relationship applicable to this case—is a hybrid. It is derived in part from a provision of the contract between DOH and DSS in which DOH (a city agency) agreed to perform, in New York City, the registration duties assigned to DSS (a state agency) by statute. Under the heading “Indemnification,” DOH agreed among other things to “be solely responsible and answerable in damages for any and all accidents and/or injuries to persons ... or property arising out of or related to the services to be rendered.” We find this provision to be without significance in this case. It is plainly designed to protect the State, by requiring the City alone to bear any liability that might arise. It does not create any liability that would not otherwise exist—and it does not create a special relationship between the City and any person or class of people.

But Ms. McLean’s argument is also derived from public policy. She suggests that the helplessness of young children, and the State’s powerful interest in protecting them from neglect or abuse, should lead us to announce the existence of a special relationship between those who register child care providers and parents and children who need child care. This is, in substance, an invitation to relax the special relationship rule to accommodate an especially appealing class of cases. We decline the invitation. A well settled rule of law denies recovery in cases like this, and that rule, by its nature, bars recovery even where a government blunder results in injury to people deserving of the government’s protection.

The rationale of the rule, as we explained in Laratro (8 NY3d at 82), is that exposing municipalities to tort liability would be likely to render them less, not more, effective in protecting their citizens. Lawsuits, as we said in Pelaez (2 NY3d at 201), are not the only way of dealing with governmental failure—and might even impel governments to withdraw or reduce their protective services. In Lauer (95 NY2d at 101), we quoted our warning in Steitz v City of Beacon (295 NY 51, 55 [1945]) that a “crushing burden” should not be imposed on a governmental body “in the absence of [statutory] language clearly designed to have that effect.” These reasons forbid the making the sort of ad hoc exceptions to the special duty/special relationship rule that Ms. McLean seeks in this case.

IV

Accordingly, the order of the Appellate Division should be reversed, with costs, the motion of defendant City of New York for summary judgment dismissing the complaint against it granted, and the certified question answered in the negative.

Judges Ciparick, Graffeo, Read, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order reversed, etc.