author: Chief Judge Kaye.

text:
    [648 NE2d 475, 624 NYS2d 99]
    In the Matter of George L., Appellant.
    Argued February 8, 1995;
    decided March 23, 1995

      POINTS OF COUNSEL

      Kim L. Darrow, Mineola, Gerald W. Kaplan and Dennis B. Feld for appellant.
   OPINION OF THE COURT

Chief Judge Kaye.

This case presents the difficult question whether a mentally ill individual — found to be not responsible, by reason of mental disease or defect, of committing a violent crime— "currently constitutes a physical danger to himself or others” (CPL 330.20 [1] [c]) so as to remain confined in a secure psychiatric hospital even though his symptoms have improved considerably. We agree with both the trial court and the Appellate Division that, in this case, the People sustained their statutory burden of showing current dangerousness.

I.

On June 28, 1990, appellant was released from the psychiatric unit at St. Francis Hospital in Dutchess County where he had been admitted two weeks earlier, after assaulting his father. Although the doctors at St. Francis apparently misdiagnosed appellant as suffering from bipolar disorder — a less serious illness than the acute paranoid schizophrenia from which he actually suffers — while at St. Francis, appellant received neuroleptic medication, a treatment also suitable for schizophrenics.

The hospital records indicate that appellant was released from St. Francis based on the doctors’ opinion that because he had become "medication compliant” and had gained greater insight into his illness, he would continue treatment at an outpatient clinic, continue taking his medication, and abstain from alcohol and marihuana (which exacerbated his violent and delusional behavior).

On July 8, however, only 10 days after his release from St. Francis, believing that he was the Messiah, that the world was about to end, and that he had a God-like mission to struggle against evil, appellant again attacked his father, this time with a hunting knife, seriously wounding him. In speaking about the incident some time later, appellant explained that because he believed at the time that he could break the law and get away with it, he had decided to destroy his former employer who represented evil, but unable to locate his employer he turned on his father instead. Appellant also later admitted that he had visited the outpatient clinic recommended by the doctors at St. Francis only once because he was unwilling to continue taking his medication.

As a result of the assault on his father and reckless driving of his pick-up truck several hours afterwards, appellant was taken into custody and indicted in County Court on separate counts of attempted murder, assault and reckless endangerment. On August 15, 1990, after receiving the recommendation of two independent psychiatrists, the trial court found appellant unfit to proceed and ordered him temporarily committed to the custody of the Commissioner of Mental Hygiene (CPL art 730). Appellant was transferred to the Mid-Hudson Psychiatric Center.

Four months later, after being discharged from Mid-Hudson because his delusional thinking had abated, appellant was again examined to determine his fitness to proceed. Though acknowledging that the symptoms seemed to have improved, the examining psychiatrist reported that appellant was still subject to delusions:

"His insight and judgment are questionable * * * [T]he defendant’s mental status has not been consistent, even recently, and that he was talking about auditory hallucinations, and God, telling him to do things to other people, specifically in regards to an incident with his father. * * * [Although] the defendant attempted to present himself from a good light * * * his mental status is fragile and susceptible to rapid, acute, unpredictable decompensation.”

Appellant’s psychiatrists later acknowledged that during this period he had suffered a relapse in jail, while on medication. As a result of the court’s finding that he was still unable to assist his attorneys, appellant was returned to Mid-Hudson in January 1991.

After his subsequent discharge from Mid-Hudson to the custody of the Department of Correction, three months later, in April, the trial court concluded that appellant was fit to proceed. On June 11, 1991, appellant offered a plea of not responsible by reason of mental disease or defect.

Three psychiatrists then examined appellant and submitted reports to assist the trial court in the statutory determination whether he "currently” suffered from a mental illness and whether he constituted a physical danger to himself or others (CPL 330.20 [1] [c]). Although all three psychiatrists agreed that appellant was mentally ill, suffering from "schizophrenia, paranoid type, chronic with acute exacerbation,” two of the three concluded that because the illness was in remission as a result of the therapy he had been receiving at Mid-Hudson (including treatment with the antipsychotic medications loxitane, cogentin and vistaril), appellant could safely be treated in a nonsecure facility. Even the psychiatrist who subsequently testified on appellant’s behalf, however, acknowledged that "[t]his 24 year-old male has at least a two year history of delusional thinking, resulting in dangerous behavior”.

While not disagreeing with his colleagues that appellant’s schizophrenia was in remission and that appellant was not dangerous as long as he continued taking medication, the prognosis of the People’s witness, Dr. Bucove, was considerably less sanguine. As he concluded in his written report to the trial court:

"There is no evidence that schizophrenia can be cured. From a statistical point of view, [appellant] is more likely to relapse than not relapse over time * * * If [appellant] lived in the community, there would be a danger to the community of his relapsing to an active state of schizophrenia with a recurrence of homicidal intentions * * * [Appellant] was treated at the psychiatric unit of St. Francis hospital from June 14th through June 28th, 1990. He stabbed his father on July 8, 1990. * * * If [appellant] is transferred to a non-secure facility, his family * * * should be advised of the risks to them * * * Given the unreliability of predicting dangerousness, the court has a difficult role in making a decision regarding his disposition”.

Similarly, at the evidentiary hearing on January 2, 1992, Dr. Bucove testified:

"As a physician, I can’t speak of a course of specific persons, specific course of illness in the future. I could only speak of in terms of what happens with these people with his illness. It is a fact with people with his illness frequently do decompensate without * * * forewarning * * * The problem with schizophrenia is that one is vulnerable to recurrence and the recurrence of schizophrenia usually takes the same pattern as previous relapses. * * * I would say there is a high probability of a relapse over time.”

Based on the evidence, the Trial Judge found that appellant did in fact pose a current danger and should remain confined to a secure facility:

"[T]he People have sustained their burden of demonstrating that the petitioner suffers from a dangerous mental disorder * * * Although there is medical testimony to the effect that at the time of examination petitioner was not specifically dangerous, * * * there is a danger of relapse at any time. In view of the short time between the commission of the acts which led to the indictment and this application, there is an insufficient basis upon which to make a determination as to petitioner’s long-term stability for purposes of transfer to a non-secure facility.”

Thus, having been retained either in a psychiatric hospital or in prison for the 17 months since attacking his father, appellant was ordered confined to a secure psychiatric facility as a "track 1” defendant suffering from a dangerous mental disorder thus subject to greater restrictions regarding his future transfer, furlough or release (People v Stone, 73 NY2d 296, 300; Matter of Jill ZZ., 83 NY2d 133, 137).

After affirmance by the Appellate Division, this Court granted leave to appeal.

II.

In determining whether appellant was correctly found to suffer from a "dangerous mental disorder,” we begin with the governing statute:

" 'Dangerous mental disorder’ means: (i) that a defendant currently suffers from a 'mental illness’ as that term is defined in * * * the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others.” (CPL 330.20 [1] [c].)

As appellant concedes, this case is not about whether he suffers from a mental illness: each psychiatrist to have examined him since his arrest agrees that he suffers from acute paranoid schizophrenia. Rather, the sole question presented is whether, on account of that condition, in January 1992 he "currently constitute^] a physical danger to himself or others” and should therefore be committed to a secure psychiatric facility.

We are thus presented with the question of defining the word "currently” as used in CPL 330.20 (1) (c) (ii), an issue we have yet to address in any detail.

Relying on Matter of Torres (People) (78 NY2d 1085, affg for reasons stated in 166 AD2d 228), appellant makes essentially two arguments why the People’s evidence was insufficient to establish his dangerousness as of January 1992. First, he contends that "currently” must be read in its strictest sense, and that in January 1992 (when he was taking antipsychotic medication in the controlled environment of a psychiatric hospital), his disease was in remission.

Second, appellant points to the People’s failure to offer evidence of violent acts in the 17 months between the attack on his father and his commitment proceeding. Without such evidence, he reasons, the People’s case improperly depended upon the nature of his criminal act combined with the statistical probability of relapse affecting paranoid schizophrenics generally, rather than a particularized showing that he would again degenerate into violent and delusional behavior.

We conclude, however, that the evidence here amply supported the trial court’s holding, by a preponderance of the evidence (People v Escobar, 61 NY2d 431), that appellant posed a danger to himself and others at the time of his commitment hearing even though he had been relatively complacent while confined in various psychiatric and correctional facilities during the period since his arrest. We now address each of appellant’s arguments on this appeal.

III.

In construing the word "currently” in the context of the statute, we start from the proposition that the Legislature could not have intended that the word be read in its strictest sense, as individuals under the supervision of the Department of Correction or the Department of Mental Health during the course of CPL 330.20 proceedings ordinarily pose little current risk to themselves or to others. This reading of the statute is reinforced by the legislative purpose behind the court’s inquiry — to determine whether an insanity acquittee should be placed in a secure facility as a "track 1” defendant, a nonsecure facility as a "track 2” defendant, or released into the general population as a "track 3” defendant. (Stone, supra; Jill ZZ., supra.)

Thus, "[w]hile it is true that * * * a person suffering from mental disease or defect * * * ought not to be held criminally responsible for that conduct and subjected to traditional punishment * * * the legislatively mandated consequences of a successful imposition of the defense equally reflect society’s legitimate interest in knowing whether the defendant is and will continue to be a threat to himself or others” (People v Lancaster, 69 NY2d 20, 27 [emphasis added]). Such an analysis necessarily involves an assessment of a defendant’s future dangerousness.

In arguing that the word "currently” should be interpreted strictly, appellant cites to the Appellate Division’s writing in Torres, where the court, in affirming a trial court’s conclusion that a paranoid schizophrenic acquitted by reason of insanity of second degree murder was not dangerous, seems to have suggested that judgments about a defendant’s dangerousness can only be made as of the moment of the CPL 330.20 hearing:

"The main proof offered [by the People] was [a psychiatric] opinion * * * that defendant was mentally ill and that should he discontinue his medication he may attempt to escape. * * * [This] opinion does not establish that defendant currently poses a danger, but would pose such a threat only in the event that he discontinue his medication in the future * * * Here, the evidence at the hearing showed that so long as defendant takes his medication, he is no longer psychotic or dangerous as he was at the time of the original incident.” (Id., at 230-231 [emphasis in original].)

To the extent that Torres might be read to indicate that the only relevant question pursuant to CPL 330.20 is whether a defendant, who has achieved "synthetic sanity” (State v Perez, 563 So 2d 841, 844 [La]) by virtue of receiving psychotropic medication, is dangerous as of the moment he is sitting in the courtroom, that interpretation is contrary both to common sense and to substantial justice. Indeed, appellant’s argument would lead to the absurd conclusion that a defendant in a straightjacket, surrounded by armed guards, is not currently dangerous under the statute. As the Supreme Court of Kansas reasoned in similar circumstances:

"Let us suppose a court is called upon to determine whether a shipment of nitroglycerine can be stored in the center of a large city. The experts testify that nitroglycerine is not dangerous as long as it is stored at temperatures below 180 degrees Fahrenheit and is not jiggled. No evidence is admitted as to the conditions under which the nitroglycerine is proposed to be kept, or supervision thereof. It would obviously be error for the court to conclude the explosive presented no risk as long as its needs were met, and to delegate determination of proper conditions to others.” (Matter of Noel, 226 Kan 536, 555, 601 P2d 1152, 1167.)

Indeed, the First Department itself recently made clear that its opinion in Torres should not be so read:

"Both doctors acknowledged that S. exhibited no symptoms of dangerous mental disorder and was not psychotic when he was in a psychiatric institution. They both testified, however, that this was not unusual since an individual committed against his will would be given medication and forced to comply with a treatment plan. Moreover, an individual such as S. would try to be on good behavior to ensure his release. In short, compliance or lack of dangerousness in a facility does not necessarily mean that an individual does not suffer from a dangerous mental disorder.” (Matter of Francis S., 206 AD2d 4, 13 [1994] [emphasis in original].)

We thus conclude that CPL 330.20 — which affects only those who have been found to be not responsible of a crime by reason of mental disease or defect — does not constrain a court to determining dangerousness as of the moment in time that a defendant is before it after a verdict or plea of not responsible by reason of mental disease or defect.

IV.

In rejecting the notion that there was insufficient evidence that appellant posed a current danger, we begin with the basic proposition that because the trier of fact is in the best position to observe the individual’s behavior as well as evaluate the weight and credibility of the often conflicting testimony of the medical and psychiatric experts, we accord deference to a trial court’s CPL 330.20 determination that an insanity acquittee suffers from a dangerous mental disorder (see, Mental Hygiene Legal Servs. v Wack, 75 NY2d 751; Torres, supra).

Again, appellant reads our precedents too expansively in arguing that a court may not consider the nature of the defendant’s criminal act in making a determination of dangerousness. Although the Torres court (supra, at 231), citing our earlier decision in Matter of Torsney (47 NY2d 667), held that "the nature of the prior criminal act for which the detainee was acquitted is insufficient, without more, to demonstrate a current danger which would preclude his release or transfer,” this does not mean that a court is precluded from considering the nature and recency of the criminal act in deciding whether a defendant remains dangerous at the time of his commitment. As the plurality in Torsney explained, because "persons acquitted of a crime by reason of mental disease or defect * * * have demonstrated past antisocial behavior, the State is permitted to engage in what may be broadly termed a presumption that the causative mental illness or defect continues beyond the date of the criminal conduct” (47 NY2d, at 673-674; see also People ex rel. Henig v Commissioner of Mental Hygiene, 43 NY2d 334, 338).

Indeed, this presumption, which is really a presumption that the mental illness found to have caused the defendant’s dangerousness continues after the commission of the crime, is even stronger in cases like the one before us where the defendant’s "antisocial behavior” constituted a crime of violence. As one commentator observed:

"The recent commission of a violent act significantly increases the probability that an individual will commit further such acts in the future. This judgment is not simply a popular notion; the clinical consensus is that a history of violent behavior in an individual is the single best predictor of future violence [and] is supported by studies of insanity acquittees, which indicate a recidivism rate equal to that of prison populations.” (Note, Rules for an Exceptional Class: The Commitment and Release of Persons Acquitted of Violent Offenses by Reason of Insanity, 57 NYU L Rev 281, 295-296 [1982].)

Though there was little evidence that appellant had committed acts of violence after his arrest while in jail or at Mid-Hudson, the trial court was justified in considering, as it did, that appellant’s attack on his father had occurred only 17 months prior to the commitment proceeding. Appellant’s own psychiatric witness acknowledged on cross-examination that it was possible for a person with the appellant’s diagnosis who has acted violently in the past to relapse into such behavior without prior warning.

Appellant’s attempt to murder his father with a hunting knife was not so remote in time as to be devoid of evidentiary value. Furthermore, the lack of evidence that he had engaged in more recent violent acts must be viewed in light of the fact that he was in custody for the entire 17 months prior to his commitment hearing. It obviously would have been difficult for appellant to attack his father or anyone else while essentially tranquilized on three different psychotropic medications as a patient at Mid-Hudson (Warren v Harvey, 632 F2d 925). We thus conclude that appellant’s plea of not responsible by reason of mental disease or defect for the crime of attempted murder, though hardly dispositive proof of his dangerousness, was certainly evidence that he remained a danger to society.

We are similarly unpersuaded by appellant’s argument that the court could not rely on the statistical evidence that because it is “highly likely” that the general population of paranoid schizophrenics who have previously exhibited violent and delusional behavior will do so again, appellant was highly susceptible to relapse. It is clear that the trial court was impressed with the candor with which the People’s psychiatrist, Dr. Bucove, acknowledged the inability of modern psychiatry to accurately predict future dangerousness with respect to a specific individual. As the Law Revision Commission which proposed the legislation substantially incorporated in the current version of CPL 330.20 recognized (see, Insanity Defense Reform Act of 1980, L 1980, ch 548), “psychiatry cannot now guarantee the safety of the public from future dangerous acts of persons found not responsible * * * and will most likely be unable to do so in the foreseeable future” (1981 Report of NY Law Rev Commn, 1981 McKinney’s Session Laws of NY, at 2261).

Of course, a finding that a defendant "currently constitutes a physical danger to himself or others” must be based on more than expert speculation that he or she poses a risk of relapse or reverting to violent behavior once medical treatment and supervision are discontinued. The prosecution may meet its burden of proving that a defendant poses a current threat to himself or others warranting confinement in a secure environment, for example, by presenting proof of a history of prior relapses into violent behavior, substance abuse or dangerous activities upon release or termination of psychiatric treatment, or upon evidence establishing that continued medication is necessary to control defendant’s violent tendencies and that defendant is likely not to comply with prescribed medication because of a prior history of such noncompliance or because of threats of future noncompliance (see, e.g., Matter of Francis S., 206 AD2d 4, 17, supra). Dependence upon factors such as these — clearly evidencing a defendant’s threat to himself or society — is warranted to justify the significant limitations on an insanity acquitee’s liberty interest which accompany secure confinement.

Although neither the nature of appellant’s prior criminal act nor the statistical probability of relapse standing alone is sufficient to establish current dangerousness, here there was more: the peculiar circumstances of appellant’s relapse after leaving St. Francis. That appellant’s behavior had already once frustrated the presumably reasonable expectations of mental health professionals, combined with the violent nature of his criminal act and the statistical probability of relapse affecting paranoid schizophrenics generally, plainly supported the determination of the trial court, affirmed by the Appellate Division, that the statutory standard was satisfied here.

V.

Finally, relying on the Supreme Court’s recent decision in Foucha v Louisiana (504 US 71 [1992]), appellant argues that the trial court improperly shifted to him the burden of proving his lack of dangerousness. This argument lacks merit as well, as is evident from the opening words of the trial court’s decision: "[t]he court finds that the People have sustained their burden of proof.” Moreover, the Louisiana statute at issue in Foucha — as opposed to the GPL provisions applicable here — did not require any showing that the defendant was in fact still mentally ill at the time of recommitment (Faucha, 504 US, at 73-74), whereas here appellant’s diagnosis as a paranoid schizophrenic is undisputed.

VI.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, without costs.

      . Shortly after his arrest and initial commitment, appellant sent the trial court a handwritten letter, addressed to "Dear Fish Market and Fish marketeers,” stating "I am unwillfully held against my grain and clearfully arraign I am sane. * * * I would willfully oblige you to conduct your principals accordingly. The time is growing nearer and end is clear”.

      . Although appellant is no longer confined in a secure facility, having been subsequently found to be mentally ill but no longer dangerous, his appeal is not moot. Appellant’s denomination as a "track 1” defendant — the issue on appeal — affects his status in all future proceedings concerning his commitment. As we noted in Williams v Cornelius (76 NY2d 542, 546), review of a criminal contempt finding "is not rendered moot merely because the sentence has been served * * * Inasmuch as lasting consequences potentially flow from the adjudication, the proceeding remains ripe for judicial review.” (See also, People v Salem, 122 AD2d 85.)

      . Our decision today thus does not extend to the necessarily higher procedural and substantive requirements for depriving an individual of his or her liberty interest in the context of an involuntary civil commitment. (See, Mental Hygiene Law § 9.39 [a]; People v Escobar, 61 NY2d 431, 440-441, supra; 1981 Report of NY Law Rev Commn, 1981 McKinney’s Session Laws of NY, at 2264.)

      . In addition, only three months prior to the January 2 hearing, in November, the staff at Mid-Hudson discovered that appellant had violated hospital regulations by keeping matches in his locker. When confronted with the matches, defendant stated to the staff at Mid-Hudson that someone had planted them there and that they "shouldn’t f---with me.”

      . See also, Perlin, Unpacking the Myths: The Symbolism Mythology of Insanity Defense Jurisprudence, 40 Case W Res L Rev 599, 693 (1990) ("The voluminous literature examining the ability of psychiatrists [or other mental health professionals] to predict dangerousness in the indeterminate future has been virtually unanimous: 'psychiatrists have absolutely no expertise in predicting dangerous behavior’ ”) (quoting Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal L Rev 693, 734-735 [1974]).

      . Both of the psychiatrists who submitted reports to the trial court on appellant’s behalf concluded that appellant could "safely be treated in a nonsecure facility,” without expressly mentioning whether appellant was dangerous. We mention this only to emphasize that such opinions are insufficient to allow a court to make an appropriate determination under CPL 330.20 — as the statute does not require a court to determine an individual’s suitable course of psychiatric treatment, but rather whether such individual "currently constitutes a physical danger to himself or others.”


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [648 NE2d 1318, 624 NYS2d 555]
    Lorraine Poirier et al., Appellants, v City of Schenectady, Respondent.
    Argued February 7, 1995;
    decided March 23, 1995

      POINTS OF COUNSEL

      Grasso, Rodriguez, Putorti, Grasso & Zyra, Schenectady (Lawrence J. Zyra of counsel), for appellants.

      Michael R. Cuevas, Corporation Counsel of City of Schenectady (L. John Van Norden of counsel), for respondent.
   OPINION OF THE COURT

Ciparick, J.

The Schenectady City Charter contains a provision that bars civil actions against the City for damages or injuries resulting from defective, dangerous, unsafe, obstructed or out of repair streets, sidewalks, crosswalks or similar public thoroughfares unless the injured party can demonstrate that the Schenectady Commissioner of Public Works had prior written notice of the offending condition and failed or neglected to remedy the condition within a reasonable time after receipt of the notice. We conclude that a protruding traffic sign post anchor is the type of dangerous, defective, unsafe or obstructed condition for which the Schenectady City Charter requires written notice as a condition precedent to an action seeking damages from an accident occasioned by the sign post anchor.

On August 6, 1990, plaintiff Lorraine Poirier sustained injuries when she tripped over a metal traffic sign post anchor protruding four inches above the sidewalk adjacent to State Street in Schenectady. Together with her husband, plaintiff filed a notice of claim against defendant alleging that its negligent maintenance of the sidewalk caused the hazardous condition resulting in her accident and injuries. Thereafter, plaintiffs instituted this action against defendant seeking damages for the personal injuries resulting from the fall, and for loss of society and services on behalf of Mr. Poirier. In its answer, defendant interposed an affirmative defense alleging that the action was barred by section C7-1 of the City Charter since defendant did not have prior written notice of the defect or obstruction described in the complaint.

The action proceeded to trial before a jury. After the close of plaintiffs’ proof, Supreme Court denied defendant’s motion to dismiss on the ground that plaintiffs failed to demonstrate compliance with the prior written notice provision of the Schenectady City Charter, and likewise denied defendant’s motion for a directed verdict upon conclusion of its case. The jury returned a verdict awarding plaintiffs $90,644.50 in damages, and apportioned liability between the parties. Supreme Court entered judgment accordingly. The Appellate Division reversed, finding defendant did not have written notice of the obstruction prior to plaintiff’s accident as mandated by the City Charter, and dismissed the complaint. We now affirm the order of the Appellate Division.

Prior written notice provisions, enacted in derogation of common law, are always strictly construed (see, Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366). Unless the injured party can demonstrate that a municipality failed or neglected to remedy a defect within a reasonable time after receipt of written notice, a municipality is excused from liability absent proof of prior written notice or an exception thereto (see, Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633-634). Practically, prior written notice provisions result in limiting a locality’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location (see, Doremus v Incorporated Vil. of Lynbrook, 18 NY2d, at 366, supra; Hughes v Jahoda, 75 NY2d 881, 882). This comports with the reality that municipal officials are not aware of every dangerous condition on its streets and public walkways, yet imposes responsibility for repair once the municipality has been served with written notice of an obstruction or other defect, or liability for the consequences of its nonfeasance, as the case may be.

An abandoned metal sign post anchor, distinct from the traffic sign missing from its post, constitutes an obstructed condition under section C7-1 of the Schenectady City Charter for which prior written notice is a prerequisite to a negligence action against the City (see, Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 918; Alexander v Eldred, 63 NY2d 460, 467; accord, Waters v Town of Hempstead, 166 AD2d 584). The protrusion created by the anchor rendered the sidewalk physically defective, dangerous and unsafe to pedestrians, and is certainly the type of condition defendant is obligated to correct once it is aware that the hazard exists on property it is charged with maintaining (see, Kiernan v Thompson, 73 NY2d 840, 841-842). Although plaintiffs offered the testimony of a shopkeeper who worked in the vicinity of the abandoned anchor, who claimed he too tripped over the obstruction and telephoned the Schenectady City Engineer to report this condition, plaintiffs could not prove defendant had prior written notice as required by the Charter in order to maintain their action.

Nor could plaintiffs demonstrate that the facts of this case fall within an established exception to the general rule mandating prior notice. The anchor did not create a "special use” of the sidewalk exempt from the notice requirement (see, Alexander v Eldred, 63 NY2d, at 466-467, supra). Traffic signs are intended to promote the orderly flow of vehicular and pedestrian traffic, and the posts and anchors are generally maintained by the municipality in the discharge of its duty to create safe streets. However, this does not translate into a special use; the signs do not confer a special benefit upon the municipality, or the motorists and pedestrians who use the public streets and sidewalks (see, id.; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d, at 365-366, supra; Clark v City of Rochester, 25 AD2d 713, 714; Nickelsburg v City of New York, 263 App Div 625; D'Ambrosio v City of New York, 55 NY2d 454, 462-463). Indeed, the trial testimony did not even definitely establish that defendant installed the anchor or erected the sign post. Apparently, the sign post and anchor were part of a reconstruction project on State Street, alleged to be the product of a cooperative effort with the State. The special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use, and is therefore required to maintain a portion of that property (see, Kieman v Thompson, 137 AD2d 957, 958).

Further, plaintiffs failed to show that defendant created the obstructed condition by an affirmative act of negligence, another recognized exception, as to render the Charter’s prior notice provision inapplicable (see, Buccellato v County of Nassau, 158 AD2d 440, 441, lv denied 76 NY2d 703; Haviland v Smith, 91 AD2d 764, 765; see also, Hughes v Jahoda, 75 NY2d, at 883, supra).

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed, with costs. Matter of Nester v Nester, 135 AD2d 878; Matter of Morrison v Morrison, 132 AD2d 985.)

      . Section C7-1 provides: "No civil action shall be maintained against the City of Schenectady for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed in consequence of the existence of ice or snow thereon, or out of repair, defective, dangerous, unsafe or obstructed in any other way or manner unless it is made to appear that written notice thereof relating to the particular time and place and condition of such street, highway, bridge, culvert, sidewalk or crosswalk was actually given to the Commissioner of Public Works at least twenty-four hours previous to such damage or injury and that there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of.”

      .  To the extent that Turco v City of Peeks kill (133 AD2d 369) and Montante v City of Rochester (187 AD2d 924) conflict with this conclusion, they are not to be followed. In affirming Supreme Court’s denial of summary judgment to defendant City in Turco, the Appellate Division, Second Department, held that a metal pipe protruding six inches above the sidewalk surface adjacent to a public highway was not a defect within the meaning of Peekskill’s prior written notice provision (accord, Ocasio v City of Middle-town, 148 AD2d 431). In Montante, the Appellate Division, Fourth Department, reversed Supreme Court’s award of summary judgment to defendant City, finding that a "sleeve without accompanying sign post” was not a defect within the meaning of Rochester’s prior written notice provision.


author: Simons, J.

text:
    [648 NE2d 1321, 624 NYS2d 558]
    In the Matter of Erwin Schachner et al., Appellants, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued February 8, 1995;
    decided March 28, 1995

      POINTS OF COUNSEL

      Jonathan Ben-Asher, New York City, and Wayne G. Hawley for appellants.

      Dennis C. Vacco, Attorney-General, New York City (Robert F. Bacigalupi, Victoria A. Graffeo, Harvey M. Berman and Judy E. Nathan of counsel), for Cesar Perales, respondent.

      Paul A. Crotty, Corporation Counsel of New York City (Trudi Mara Schleifer, Leonard Koerner, Barry P. Schwartz and Alan G. Krams of counsel), for Barbara Sabol, respondent.
   OPINION OF THE COURT

Simons, J.

Under a 1988 amendment to the Medicaid program, the financially dependent spouse of an individual who is institutionalized for long-term, Medicaid-subsidized medical care is entitled to a minimum monthly maintenance allowance awarded from the income of the institutionalized spouse. The minimum allowance is set by statute but must be increased upon a showing of exceptional circumstances resulting in financial distress to the noninstitutionalized spouse. Petitioners commenced this CPLR article 78 proceeding to challenge the determination of respondent Commissioner of Social Services that the expense of providing a private secondary and college education for their child does not qualify as an exceptional circumstance for purposes of mandating an increase in the community spouse income allowance. The courts below sustained the Commissioner’s determination, as do we.

I

Medicaid, a joint Federal and State program, provides for the medical care of individuals whose own income and resources are insufficient to meet the costs of their medical needs. Because Medicaid is a means-tested program, its benefits are only available to those whose income and resources fall below a certain level. Moreover, once a Medicaid-qualified individual enters a nursing home, most of the income the Medicaid recipient does have must be applied to the cost of nursing home care. Under prior law, an institutionalized spouse could make income available to his or her noninstitutionalized spouse (termed the community spouse) only up to the medical assistance eligibility level or the public assistance standard of need, whichever was higher. As a result, many community spouses found themselves virtually impoverished because the greater part of the couple’s income derived from a pension or other source that was solely in the name of the institutionalized spouse.

To ameliorate this harsh result, Congress in 1988 amended the rules for treatment of the income and resources of the institutionalized spouse as part of the Medicare Catastrophic Coverage Act (42 USC § 1396r-5, as amended by Pub L 100-360, 102 US Stat 753). Noting that "the leading cause of financial catastrophe among the elderly is the need for long-term care”, the legislation was expressly directed at ending the "pauperization” of the community spouse (see, HR Rep No. 100-105 [II], 100th Cong, 2d Sess, reprinted in 1988 US Code Cong & Admin News, at 888). The Act provided for an allowance to the community spouse paid out of the institutionalized spouse’s income in order to bring the community spouse’s income up to a minimum monthly needs allowance specified in the statute (see, 42 USC § 1396r-5 [d]).

The allowance is paid only to the extent that the institutionalized spouse has sufficient income to cover it — that is, the State is not required to make up any shortfall between the statutory allowance and what the institutionalized spouse is able to provide. However, the institutionalized spouse’s contribution to his or her own medical expenses is reduced by the amount of the community spouse allowance, and that reduction must be made up from public funds.

The statute further provides for a separate family member allowance to be paid to a minor child, dependent child, dependent parent or dependent sibling of either the institutionalized or the community spouse, if over half of that family member’s needs are met by either the institutionalized spouse or the community spouse (42 USC § 1396r-5 [d] [1] [C]). Finally, in recognition that the minimum maintenance allowance may not be adequate in every case, the statute permits either the institutionalized spouse or the community spouse to establish at a fair hearing "that the community spouse needs income, above the level otherwise provided by the minimum monthly maintenance needs allowance, due to exceptional circumstances resulting in significant financial duress” (see, 42 USC § 1396r-5 [e] [2] [B]).

In order to receive Federal Medicaid funds, a State’s Medicaid plan must conform to the standards set out in Federal statutes and regulations. Accordingly, in 1989 the State enacted Social Services Law § 366-c, the State counterpart to the spousal allowance provisions of the Federal Medicare Catastrophic Coverage Act. Section 366-c (8) (b), mirroring the equivalent Federal provision, directs that the community spouse allowance must be increased "based upon exceptional circumstances which result in significant financial distress (as defined by the commissioner in regulations).” To implement the statute, respondent Commissioner of Social Services accordingly issued Administrative Directive 89 ADM-47, codified as 18 NYCRR 360-4.10 (a) (10):

"[significant financial distress means exceptional expenses * * * [which] may be of a recurring nature or may represent major one time costs, and may include but are not limited to: recurring or extraordinary noncovered medical expenses [of the community spouse or family members as defined in the Directive]; amounts to preserve, maintain or make major repairs on the homestead; and amounts necessary to preserve an income-producing asset.”

On its face, the regulation does not purport to include all expenses that might be considered as exceptional.

The question raised on this appeal is whether respondent Commissioner’s determination here that the voluntarily assumed costs of a private secondary and college education for petitioners’ daughter do not constitute exceptional circumstances for the purposes of Social Services Law § 366-c is an overly restrictive interpretation of the statutory provision, in derogation of the legislative intent.

II

In October 1989, petitioner Alice Schachner, the primary income provider in the Schachner household, became so debilitated by Alzheimer’s disease that she required nursing home care. Mrs. Schachner was receiving a monthly pension of $2,850 and $1,000 in monthly Social Security disability payments; her husband, petitioner Erwin Schachner, received income of approximately $550-$600 per month. At the time Mrs. Schachner entered the nursing home, the Schachners’ daughter Erica was 17 years old and attended a private secondary school. Alice Schachner applied for, and received, Medicaid coverage for her nursing home expenses, and in November 1990 the New York City Department of Social Services also awarded petitioner Erwin Schachner a monthly community spouse income allowance of $1,083.14 for the period October 1989 through December 1989, and of $1,126.14 for the period January 1990 through December 1990. Erica, who was now attending a private college, received a family member allowance of $190 per month for the same period. Petitioners requested a fair hearing to challenge the amount of income that Mrs. Schachner was required to contribute to her own care and the amount of Mr. Schachner’s allowance.

Prior to the fair hearing, petitioner Erwin Schachner brought a proceeding in Family Court on behalf of himself and Erica, seeking an order of support against his wife. In April 1991, Family Court issued an order directing Mrs. Schachner to pay $3,386.02 in monthly support, beginning in January 1991. Accordingly, Mr. Schachner’s community spouse income allowance was raised to $3,386.02, effective January 1991, as both the State and Federal statutes provide that the allowance shall not be less than the amount of court-ordered support (see, 42 USC § 1396r-5 [d] [5]; Social Services Law § 366-c [2] [g]).

When the previously requested fair hearing was held, petitioners sought a retroactive increase in Mr. Schachner’s community spouse income allowance for the period not covered by Family Court’s support order. Petitioners contended that certain of Mr. Schachner’s medical expenses and Erica’s private school and college expenses constituted "exceptional circumstances” within the meaning of Social Services Law § 366-c and entitled Mr. Schachner to an increased allowance. The Hearing Officer concluded that these expenses were not exceptional or extraordinary and denied the requested increase, and petitioners sought article 78 review of that determination. Supreme Court dismissed the petition, and the Appellate Division affirmed. The Court took the view that the sorts of expenses enumerated in the regulation defining exceptional circumstances only "pertain to things which may be deemed 'necessaries’ ”, and providing a college education to a child is not a necessary expense for which the parent may be obligated under the common law, absent special circumstances or a voluntary agreement (203 AD2d 21, 22). We agree with the Appellate Division that the voluntarily assumed expenses of a private secondary and college education are not the sort of "exceptional expenses” contemplated by Social Services Law § 366-c, although we reach that conclusion by a different route.

III

Our analysis begins, and indeed essentially ends, with the legislative intent underlying the Medicare Catastrophic Coverage Act and its State counterpart: "to end th[e] pauperization [of the community spouse] by assuring that the community spouse has a sufficient — but not excessive — amount of income and resources available” while the institutionalized spouse is in a nursing home at Medicaid expense (see, HR Rep No. 100-105 [II], op. cit., at 888). In its memorandum in support of legislation to conform the Social Services Law to the changes in the Federal law, the Executive Department made clear that the need for section 366-c arose from the "new federal standards concerning spousal impoverishment” (see, Mem of State Exec Dept, 1989 McKinney’s Session Laws of NY, at 2204). And, in approving the 1989 amendments to the Social Services Law, then-Governor Cuomo underscored that the primary focus of the legislation was to ensure that "[o]ur senior citizens should not live their golden years in the shadow of impoverishment” (see, Governor’s Approval Mem, L 1989, ch 558, 1989 McKinney’s Session Laws of NY, at 2415).

Manifestly, the narrow purpose of the legislation providing for the spousal allowance is to protect the community spouse from financial disaster when the primary income-providing spouse becomes institutionalized. The handful of decisions in other States that have considered the matter uniformly take this view (see, e.g., Ford v Iowa Dept. of Human Servs., 500 NW2d 26, 27 [Iowa] [purpose of catastrophic care statute is "to ameliorate the financial hardship suffered by aging couples faced with the high cost of nursing home care”]; Gruber v Ohio Dept. of Human Servs., 98 Ohio App 3d 72, 647 NE2d 861).

Despite petitioners’ insistence that the State and Federal statutes seek to provide financial security to the families of nursing home patients, the legislative history makes clear that the focus of the statutory protection provided through the community spouse income allowance is the dependent, elderly spouse. The statutory scheme recognizes that either the institutionalized or the community spouse may be providing financial support to other family members, but provides for this contingency through the separate family member allowance— which is subject to a separate increase under appropriate circumstances — and by recognizing that the financial burden placed on the community spouse of caring for "a disabled child, sibling or other immediate relative” may constitute the "exceptional circumstances” on which an increased allowance can be predicated (see, HR Conf Rep No. 100-661, 100th Cong, 2d Sess, reprinted in 1988 US Code Cong & Admin News, at 1044-1045). We therefore reject petitioners’ argument that the existence of minor children is itself an "exceptional circumstance” for the elderly community spouse generally envisioned by the statute. Congress clearly took into account that such situations exist, and made provision for them.

Petitioners’ argument that Family Court’s award of support in an amount that greatly exceeded the minimum monthly needs allowance constituted "compelling evidence” that Erwin and Erica Schachner could not "survive” on the statutory allowance is also unpersuasive. Initially, it should be noted that Family Court’s award contemplated the support of both Erwin and Erica, while the community spouse income allowance is focused on the needs of the community spouse alone. Family Court may award "fair and reasonable” spousal and child support taking into account the circumstances of the respective parties, including their accustomed standard of living (see, Family Ct Act §§ 412, 413; Besharov, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 412, 1995 Cum Ann Pocket Part, at 5, 6), while only those exceptional circumstances that result in "financial duress” may be considered on an application for an increase in the community spouse income allowance. Moreover, Family Court in awarding support must consider the parental obligation to provide for a child and for a child’s education (see, Family Ct Act § 413 [1] [c] [7]). The statutory provision for the community spouse income allowance is not grounded even in the obligation of one spouse to support the other, much less in the obligation of the parent to support a child. Rather, the statute seeks only to mitigate a perceived societal wrong that is a by-product of the Medicaid scheme itself.

Although the Appellate Division incorrectly concluded that only expenses for common-law "necessaries” may create financial duress for purposes of increasing the community spouse income allowance, it is clear that Social Services Law § 366-c contemplates that an increase is available only to alleviate true financial hardship that is thrust upon the community spouse by circumstances over which he or she has no control, as exemplified by the circumstances enumerated in 18 NYCRR 360-4.10 (a) (10): extraordinary medical expenses, and the need to preserve the homestead or an income-producing asset. The entry of a family member into a nursing home, particularly where that family member is the primary income producer, may have a devastating effect on a family’s standard of living, but the focus of these ameliorative statutes, both State and Federal, is solely on the prevention of the sort of financial catastrophe to the elderly community spouse that too often ensued under the prior statutory scheme for Medicaid-funded care. Thus, respondent’s determination that petitioners’ voluntarily assumed expenses for the private secondary and college education of their child in this case do not constitute "exceptional circumstances resulting in significant financial duress” for the purposes of an increased community spouse income allowance is both rational and in harmony with the legislative intent behind Social Services Law § 366-c. We have considered petitioners’ remaining contentions and find them either without merit or unpreserved.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, without costs.

      . Each State is permitted to establish a minimum monthly needs allowance that is equal to or exceeds the minimum set by Congress. In the original legislation, the maximum permissible allowance was capped at $1,500, but subsequent increases in the cap have been allowed. Currently, the minimum monthly maintenance needs allowance in New York is $1,718. In addition, the community spouse is permitted to retain resources up to a value of $60,000 without imperiling the institutionalized spouse’s Medicaid eligibility.

        . A separate section of the bill that added section 366-c to the Social Services Law also incorporated into the Social Services Law Federal provisions for Medicaid reimbursement to school districts and counties for services to students and preschool age children with handicapping conditions (see, Social Services Law §§ 368-d, 368-e).

      . Although respondent Commissioner of the New York City Department of Social Services urges on this appeal that Family Court’s award of support in excess of the amount of the community spouse income allowance was erroneous as a matter of law, the City respondent took no cross appeal in this matter. Although petitioners themselves point out the anomaly in the statutory scheme under which a community spouse may ultimately obtain a higher allowance than that specified in the statute by obtaining a Family Court support order, petitioners understandably do not contest the propriety of Family Court’s award. They contend only that Family Court’s support award should have been regarded by the department as "compelling evidence” of Erwin Schachner’s needs. Thus, the City respondent’s contention is not properly before the Court, and we do not consider it today.


author: Per Curiam.

text:
    [648 NE2d 1326, 624 NYS2d 563]
    In the Matter of Consolation Nursing Home, Inc., Respondent, et al., Petitioner, v Commissioner of New York State Department of Health et al., Appellants. In the Matter of New York State Health Facilities Association, Inc. et al., Respondents, v David Axelrod, as Commissioner of Health of State of New York, et al., Appellants.
    Argued February 7, 1995;
    decided March 28, 1995

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Victor Paladino, Jerry Boone, Peter H. Schiff and Victoria A. Graffeo of counsel), for appellants in the first and second above-entitled proceedings.

      Cadwalader, Wickersham & Taft, New York City (Peter G. Bergmann and William J. Natbony of counsel), for respondent in the first above-entitled proceeding.

      Harter, Secrest & Emery, Rochester (Thomas G. Smith, Carol L. O’Keefe and Ross P. Lanzafame of counsel), for respondents in the second above-entitled proceeding.
   OPINION OF THE COURT

Per Curiam.

Petitioners are nursing homes and a representative organization of nursing homes, which participate in the State’s Medicaid reimbursement program. In separate CPLR article 78 proceedings, they challenged respondent Commissioner’s 1989 promulgation and application of a regulation (10 NYCRR 86-2.10 [c] [3] [l] [1]; and [d] [4] [ii] [a], collectively termed "the base price reduction regulation”) that reduced the base prices to help offset a portion of the increased reimbursement for nurses’ salaries. As a result, certain nursing homes, including the individual petitioners, experienced a decrease in the amount of reimbursement received.

Reimbursement is calculated under the Resource Utilization Group-II methodology adopted by the State in 1986. Under that formula, nursing homes are reimbursed at a per-patient, per-day rate incorporating four cost components: direct, indirect, capital and noncomparable. The reimbursement rates are based on a facility’s allowable operating costs in 1983, designated the base year, "trended forward” to account for inflation. These base year costs are used to set a maximum or "ceiling” price and a minimum or "base” price for each facility. If a facility’s costs exceed its ceiling price, that facility is reimbursed only for the ceiling price, trended forward for inflation; if its costs are lower than the base price, the facility is reimbursed for the base price, similarly trended forward. If a facility’s costs fall between the ceiling and base prices, it is reimbursed for its actual allowable 1983 costs, trended forward.

Thus, a nursing home that keeps its actual costs below the base price receives the "bonus” of reimbursement at the base price level, while a facility that allows its actual costs to rise above the ceiling price is penalized. The 1989 base price reduction regulation lowered the base price used in calculating the direct and indirect cost components of the reimbursement rate. As a result, a number of facilities that had formerly been below base and receiving a reimbursement bonus, no longer fell into the below-base category. These facilities were reimbursed in 1989 and subsequent years only for their actual allowable costs. An additional number of facilities, although still below base, received smaller bonuses because the differential between their actual costs and the new, lower base price was decreased.

Although some petitioners point to increases in the shortfall between their operating expenses and their Medicaid reimbursement, and to increased operational losses, the fact remains that no nursing home receives less than its actual allowable 1983 costs, trended forward for inflation. The base price reduction regulation merely reduced the amount of reimbursement some nursing homes were receiving in excess of those adjusted costs.

Petitioners challenged the base price reduction regulation as arbitrary, capricious and without rational basis. The New York State Health Facilities Association petitioners additionally contended that the regulation violated both the procedural and substantive mandates of the Federal Boren Amendment (42 USC § 1396a [a] [13] [A]), which requires that Medicaid reimbursement rates be "reasonable and adequate to meet the [necessary] costs [of] efficiently and economically operated facilities.” Petitioner Consolation Nursing Home raised the related contention that the regulation violated sections 2807 (3) and 2808 (3) of the New York State Public Health Law, which incorporate the Boren Amendment standard.

Supreme Court invalidated the base price reduction regulation in both cases, and in Matter of New York State Health Facilities Assn., also found that the regulation and its promulgation violated the substantive and procedural standards of the Boren Amendment. The Appellate Division, although deeming it more appropriate to treat this portion of each petition as an action for a declaratory judgment, affirmed the invalidation of the regulation. The Court concluded in Matter of Consolation Nursing Home that the regulation lacked a rational basis because "respondents failed to conduct empirical studies to verify that below-base facilities were actually, rather than hypothetically, receiving reimbursement above their actual costs,” and because the regulation was promulgated without " 'a measured period of empirical documentation’ ” (194 AD2d 149, 153-154). The Court found this conclusion determinative of the later appeal in Matter of New York State Health Facilities Assn. (199 AD2d 752, 753), and therefore did not reach petitioners’ Boren Amendment claims.

The standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious (see, Matter of New York State Assn. of Counties v Axelrod, 78 NY2d 158, 166; Matter of Bates v Toia, 45 NY2d 460, 464). An administrative agency’s exercise of its rule-making powers is accorded a high degree of judicial deference, especially when the agency acts in the area of its particular expertise (see, Matter of Memorial Hosp. v Axelrod, 68 NY2d 958, 960; 5 Davis, Administrative Law § 29:3, at 343 [2d ed]). Accordingly, the party seeking to nullify such a regulation has the heavy burden of showing that the regulation is unreasonable and unsupported by any evidence (see, Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 349-350; Matter of Society of N. Y. Hosp. v Axelrod, 70 NY2d 467, 473; cf., Matter of Jewish Mem. Hosp. v Whalen, 47 NY2d 331, 343).

Although documented studies often provide support for an agency’s rule making, such studies are not the sine qua non of a rational determination. As we have previously stated, in a rate-fixing decision “the commissioner, of course, is not confined to factual data alone but also may apply broader judgmental considerations based upon the expertise and experience of the agency he heads” (see, Matter of Catholic Med. Ctr. v Department of Health, 48 NY2d 967, 968-969).

Accordingly, in each case the order to the extent appealed from should be reversed, with costs, and the matter remitted to Supreme Court, Albany County, for further proceedings under the appropriate standard of judicial review and, if necessary, for determination whether the reimbursement rates after implementation of the base price reduction regulation are adequate to meet the standards of the Boren Amendment and the Public Health Law.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion.

In each case: Order, insofar as appealed from, reversed, with costs, and matter remitted to Supreme Court, Albany County, for further proceedings in accordance with the opinion herein.

       The State is reimbursed by the Federal Government for a portion of its Medicaid reimbursement expenditures. The State’s receipt of Federal funds is conditioned upon compliance with the requirements of the Boren Amendment. Under the Amendment, when a State makes significant changes in either the standards or methods for determining Medicaid payment rates, it must make findings and give assurances to the Federal Health Care Financing Administration that the new rates continue to meet the Amendment’s substantive standards.


text:
    [648 NE2d 1329, 624 NYS2d 566]
    Basem Khela et al., Respondents, v Aaron Neiger, Defendant and Third-Party Plaintiff. A.T.G. Construction, Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendant.
    Argued February 7, 1995;
    decided March 30, 1995

      POINTS OF COUNSEL

      Herzfeld & Rubin, P. C., New York City (David B. Hamm, Herbert Rubin and Linda M. Brown of counsel), and Raymond C. Green for third-party defendant-appellant.

      Alexander J. Wulwick, New York City, and Talisman, Rudin & Eskenazi, P. C., Mineola, for respondents.
   OPINION OF THE COURT

Chief Judge Kaye.

By this appeal we are asked to determine whether the exemption specified in Labor Law § 241 for owners of one- and two-family dwellings applies to section 241-a (which has no express exemption), and we are asked to determine this legal question in a case where a three-family dwelling was being converted to a two-family dwelling. We conclude that the owner is entitled to the exemption.

Defendant Aaron Neiger purchased a three-story building in Brooklyn containing three apartments, one on each floor, which was covered by a multiple dwelling certificate of occupancy. Before moving in, Neiger obtained approval for alteration of the building and contracted with A.T.G. Construction to convert the building to a two-family dwelling including construction of a three-story wing on vacant property adjacent to the building. A.T.G. was obligated, once the construction was complete, to obtain a new certificate of occupancy. Neiger planned to reside with his family on the two upper floors while renting the ground floor to a tenant.

Plaintiff Basem Khela, employed by A.T.G., was working on the third floor of the newly constructed wing near an open area where stairwells were to be added. A plank covered the open stairwell area on the third floor, but there was no covering for that area on the second floor. When Khela walked across the plank on the third floor, it broke and he fell through the second floor, where there was no planking, to the first floor, sustaining serious injuries.

Khela and his wife sought damages against Neiger, and Neiger filed a third-party complaint against A.T.G. After the trial court determined that the building was a two-family dwelling, defendant moved to dismiss plaintiffs’ Labor Law claims. The trial court granted defendant’s motion, reading the homeowner’s exemption into section 241-a, but the Appellate Division reversed and granted plaintiffs’ cross motion for partial summary judgment on the issue of liability under Labor Law § 241-a. Plaintiffs thereafter obtained a judgment against defendant, who in turn obtained a judgment over against third-party defendant A.T.G. A.T.G appeals. We now reverse.

Labor Law § 241 requires that "[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work” comply with certain safety standards when constructing or demolishing buildings. Section 241-a, directly applicable to the facts presented, in its entirety reads as follows: "Any men working in or at elevator shaftways, hatchways and stairwells of buildings in course of construction or demolition shall be protected by sound planking at least two inches thick laid across the opening at levels not more than two stories above and not more than one story below such men, or by other means specified in the rules of the board.”

For the following reasons, we agree with Neiger that the homeowner’s exemption specified in Labor Law § 241 should be read into section 241-a.

First, as a matter of statutory interpretation, sections relating to the same subject matter are deemed to be in para materia and "construed together as though forming part of the same statute” (McKinney’s Cons Laws of NY, Book 1, Statutes § 221 [a], [b]). Labor Law §§ 241 and 241-a, similar in purpose, are both part of the statutory scheme addressing "Building Construction, Demolition and Repair Work.”

This principle of statutory construction has particular relevance in the present case because section 241-a, as it is worded, must be read in conjunction with section 241. Section 241-a sets out only a general safety standard, without naming the persons governed by that standard. Reference must be made to section 241 in order to determine that the standard applies to all "contractors and owners and their agents.” If the persons to whom the standard applies must be borrowed from section 241, why not also the exemption that immediately follows those words?

Second, that reading is supported by the rationale of the homeowner’s exemption. The exemption was added by amendment to section 241 in 1980 because it "is unrealistic to expect the owner of a one or two family dwelling to realize, understand and insure against the responsibility” that section imposes (Mem of NY Law Rev Commn, Bill Jacket, L 1980, ch 670, reprinted in 1980 McKinney’s Session Laws of NY, at 1657, citing Haimes v New York Tel. Co., 46 NY2d 132, 138). The intention was to make the law fairer and more reflective of the practical realities (see, Cannon v Putnam, 76 NY2d 644, 649 [tracing history of the exemption, beginning with Allen v Cloutier Constr. Corp., 44 NY2d 290, 297-300]).

That rationale applies with equal force to section 241-a. Indeed, because section 241-a does not in the first instance specify the persons to whom the standard applies, it could not have been amended — as section 241 was — explicitly to add the same exemption.

Having concluded that the exemption should be read into section 241-a, we next determine whether this particular homeowner can claim its benefit.

The determination whether the exemption is available to an owner in a particular case turns on the site and purpose of the work (Cannon v Putnam, 76 NY2d, at 650). In formulating this test, the Court was mindful of the "underlying notions of reasonableness and fairness that motivated the Legislature’s adoption of the dwelling-owner exemption.” (Id.) In Cannon, for example, although the property was in part used for commercial purposes, the site and purpose of the outdoor lighting fixture installation was solely connected with the owner’s residential use of the property. That home-improvement project was not intended to benefit the commercial usage of the property and thus qualified for the exemption.

Here too the site and purpose of the construction was solely connected with remodeling the building into a residential and single tenant space, not creating or enhancing a commercial usage. Thus, Neiger was entitled to the benefit of the exemption.

As A.T.G. did not move for summary judgment at Supreme Court, this Court is not empowered to now grant it that relief (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106). The case must therefore be remitted to Supreme Court for such further proceedings as may be appropriate.

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be reversed, with costs, and the case remitted to Supreme Court, Kings County, for further proceedings in accordance with this opinion.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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


author: Bellacosa, J.

text:
    [648 NE2d 1331, 624 NYS2d 568]
    The People of the State of New York, Respondent, v Richard Saunders, Appellant.
    Argued February 16, 1995;
    decided March 30, 1995

      POINTS OF COUNSEL

      Pamela Peters, New York City, and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Seth M. Lieberman, Roseann B. MacKechnie and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

The issue on this appeal is the viability of prosecuting this defendant for the crime of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [1]; § 265.01 [1]), which is predicated on defendant’s actual possession. Defendant appeals by leave of a Judge of this Court from an order of the Appellate Division, which reversed, on the law, a judgment of Supreme Court dismissing the indictment.

Relying on People v Campbell (72 NY2d 602), Supreme Court ruled that the crime of weapons possession is a strict liability offense, such that the specific intent required for an "attempt” rendered any attempt prosecution legally impossible. The Appellate Division disagreed and reinstated the attempted weapons possession charge (200 AD2d 640).

We affirm the order of the Appellate Division and conclude that in the circumstances presented here, a person can criminally attempt to possess a weapon (see, Penal Law §§ 110.00, 265.02 [1]; § 265.01 [1]). Notwithstanding the strict liability nature of the underlying weapons possession offense, a defendant may legally and logically attempt to act in the manner proscribed by this penal statute — namely, to attempt to possess a weapon.

On December 30, 1991, police officers responded to a radio call regarding a possible attempted suicide at 49 Crown Street, Apartment 7E, in Kings County. Upon gaining entry to the apartment, the officers found defendant unconscious on a couch. A loaded revolver lay in open view on the table next to him. Defendant was taken to a hospital. While there, defendant asked a police officer whether the gun had been found. The officer answered in the affirmative. Defendant then volunteered his disappointment by stating that, "I wanted to kill the * * * D.A.” A ballistics test eventually revealed that the gun was inoperable. Defendant, who had previously been convicted of a crime, was charged with attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [1]).

Our analysis begins with a consideration of the relevant weapons possession crimes and the undergirding policies relating to criminal culpability for an attempt of weapons possession crimes. Guilt for criminal possession of a weapon in the third degree may occur when a person "commits the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime” (Penal Law § 265.02 [1]). Criminal possession of a weapon, fourth degree, in turn, occurs when a person "possesses any firearm” (Penal Law § 265.01 [1] [emphasis added]; see also, Penal Law § 265.00 [3]).

"Possession,” as part of the forbidden act, includes the Penal Law definitional component of " '[voluntary act,’ ” which incorporates the attribute of awareness of the possession or control (Penal Law § 15.00 [2]). Thus, the corpus delicti of weapons possession under Penal Law § 265.01 (1) is the voluntary, aware act of the possession of a weapon, with the additional feature of operability of the firearm (see, People v Ansare, 96 AD2d 96, 97, citing People v Grillo, 15 AD2d 502, affd 11 NY2d 841).

Any attempt may occur "when, with intent to commit a crime [a person] engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00 [emphasis added]). An attempt is, therefore, an act done with the specific intent to commit some other crime (Penal Law § 110.00; People v Coleman, 74 NY2d 381, 383). We and the Legislature have also prescribed that "[i]t is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, 'if such crime could have been committed had the attendant circumstances been as such person believed them to be’ ” (People v Dlugash, 41 NY2d 725, 735; People v Coleman, supra, at 384; see also, Penal Law § 110.10). Another important, countervailing nuance declares that because the "very essence of a criminal attempt is the defendant’s intention to cause the * * * result [proscribed by penal statute], * * * there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended” (People v Campbell, 72 NY2d 602, 605, supra [emphasis added]).

Focusing essentially on the quoted language in Campbell, appellant argues that any attempt of the weapons possession crime at issue here is legally impossible, because (1) the crime lacks a specific articulated mental state (see, Penal Law § 265.02 [1]; § 265.01 [1]); and (2) the additional element of the crime — operability of the firearm — is a strict liability element. Appellant particularly contends that because this weapons possession charge is a strict liability offense, the specific intent required for an attempt is always incompatible and incongruent with the fact that the commission of the completed underlying crime does not require an intent component. We disagree.

The strict liability nature of this category of weapons possession crime does not logically, statutorily, or policy-wise absolutely preclude the potentiality of any attempt prosecution for all classes of this criminal conduct. Defendant’s argument ignores (1) the distinctive, discrete limited category of crimes to which Campbell refers and to which its analysis applies; (2) our more nuanced interrelated precedents which have recognized attempts as being legally cognizable, notwithstanding the existence of strict liability components of the underlying crime; (3) the policy principles supporting the Legislature’s penological recognition of the attempt classification of crimes generally; and (4) the legislative policies specifically targeting weapons possession crimes and seeking to prophylactically intercept the possession and use of weapons in an inordinately armed society.

Contrary to defendant’s contention, the specific intent required to commit an attempt is not, under all circumstances, incompatible with recognizing penal responsibility for an attempt to commit a strict liability offense. Defendant’s and Supreme Court’s reliance on People v Campbell (72 NY2d 602, supra) is misplaced. In Campbell, we held that an attempt is legally impossible when the underlying crime imposes responsibility for causing a wholly unintended result (id., at 605). Campbell turned on whether the crime of attempted assault in the second degree was a legal impossibility (id., at 603-604). Assault, second degree, is defined to occur when "[w]ith intent to prevent a * * * police officer [or other emergency personnel] * * * from performing a lawful duty, [a person] causes physical injury to such * * * officer” (Penal Law § 120.05 [3] [emphasis added]; People v Campbell, supra, at 604 [emphasis added]). Finding that the underlying crime imposed strict liability for a result — causing injury — we held that an attempt for such a crime could not exist because culpability would be imposed even if the resulting injury were "wholly unintended” (id., at 604-605).

The "result-based” culpability crime at issue in Campbell, and the kinds of "result” crimes to which its analysis pertains, are not at issue here. The weapons possession crime in the instant case is not such a result-based crime — its definition contains no "result” component. Rather, the underlying weapons possession crime here proscribes particular conduct — the act of possessing an operable firearm. Campbell does not support the broader proposition defendant presents — namely, that the strict liability nature of a crime, per se, precludes an attempt prosecution (see, People v Campbell, supra, at 604-605). Consequently, this Court sees no justification here for creating a per se bar to even the prosecution itself for attempted criminal possession of a weapon when the possession is predicated on direct conduct.

We emphasize that constructive, attributive possession circumstances are not governed by the attempt analysis we apply to this case. The elemental "aware[ness]” definition of possession encompasses "innumerable varied circumstances [including] actual, implied, inferred, and presumed possession” (2 Groble, Criminal Law in New York § 43:03 [Callaghan 3d ed]; see also, Penal Law § 15.00 [2]; § 265.15). Thus, while numerous, varied types of conduct by a criminal actor — intentional, knowing, nonintentional, implied, inferred and constructive — may qualify as an "aware[ness]” necessary to constitute the "possession” defining the underlying crime, they may not all theoretically qualify for attempt prosecutions (see, Penal Law § 15.00 [2]).

Also unavailing is defendant’s argument that the crime of attempted criminal weapons possession is a legal impossibility because it includes an element of intent that the underlying crime does not require (see, People v Campbell, supra, at 606-607). While isolated language in Campbell may be read more broadly to breathe a modicum of vitality into this argument (id., at 606-607, n 3; but see, CPL 1.20 [37]), careful analytical appreciation and application of the ratio decidendi, as we have earlier indicated, do not sustain the result defendant urges under the particular circumstances of this case and under this classification of attempted weapons possession. Indeed, Coleman, decided after Campbell, illustrates the additional nuance that lack of an intent element in the underlying crime of promoting prostitution — a "knowing” culpable mental state crime — does not render all attempt prosecutions a legal impossibility (see, People v Coleman, 74 NY2d 381, 384-385, supra).

Finally, long-standing penological policies underlying the recognition of attempt responsibility also support the carefully calibrated rationale and result we reach in this case. The premise of the Legislature’s recognition of attempt culpability is that an actor’s objectives and actions, though failing to achieve a desired goal, "constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions” (see, People v Dlugash, 41 NY2d 725, 726, supra; see also, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 110.00, at 412).

The proven state of an actor’s mental framework provides the basis for determining potential for and punishable dangerousness of acts in their attempt stage (People v Dlugash, 41 NY2d 725, supra; see also, Penal Law § 110.10). When a defendant, such as appellant in this case, intends to possess a weapon with the requisite underlying awareness — indeed, with a particular target and victim — then defendant’s mental "frame of reference” presents a danger which the Legislature sought to deter, prohibit and punish by providing for that kind of attempted criminal culpability. This case should, therefore, be allowed to proceed to trial.

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

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

Order affirmed.