author: Bellacosa, J.

text:
    [661 NE2d 991, 638 NYS2d 418]
    In the Matter of Lawrence P. Flynn, Respondent, v State Ethics Commission, Department of State, State of New York, Appellant.
    Argued November 27,1995;
    decided December 21, 1995

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Frank K. Walsh, Victoria A. Graffeo and Peter H. Schiff of counsel), for appellant.
    The State Ethics Commission has jurisdiction to proceed against petitioner to determine whether he violated the ethics law while serving in State government and to impose a civil penalty against him for any such violations despite his retirement from State service during the course of the Commission’s investigation. (Matter of Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284; Matter of Maine Sugar v Wickham, 37 AD2d 381; Forti v New York State Ethics Commn., 75 NY2d 596; Matter of Albano v Kirby, 36 NY2d 526; Matter of Rush v Mordue, 68 NY2d 348; Matter of Dondi v Jones, 40 NY2d 8; La Rocca v Lane, 37 NY2d 575.)

      MacKrell, Rowlands, Premo & Pierro, Albany (Paul A. Levine and Patrick J. MacKrell of counsel), for respondent.
    There is no basis for reversal. (Matter of Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284; Matter of Maine Sugar v Wickham, 37 AD2d 381; Forti v New York State Ethics Commn., 75 NY2d 596; Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597.)
   OPINION OF THE COURT

Bellacosa, J.

This statutory construction case poses the question whether the State Ethics Commission has jurisdiction under Executive Law § 94 (12) over an employee who has resigned from State service. Because the governing statute does not confer such extended jurisdiction over a former employee expressly or by necessary implication, we affirm the determinations of the lower courts.

Petitioner Flynn was the Adjutant General of the State Division of Military Affairs. In April 1990, the State Ethics Commission began an investigation into allegations that he had accepted free tickets to an antique show sponsored by a private organization and held at the Park Avenue Armory in New York City. The Armory was under Flynn’s State military authority. In November 1990, the Commission sent Flynn a notice pursuant to Executive Law § 94 (12) detailing its allegations and gave him 15 days to respond. He did so in early December 1990.

More than a year and a half later, in July 1992, without any intervening contact from the Commission, Flynn retired from State service. In December 1992, two years after Flynn’s response to the initial notice and more than five months after his retirement, the Commission sent a notice of reasonable cause to Flynn and to the Governor, pursuant to Executive Law § 94 (12) (b). The notice alleged that Flynn had violated Public Officers Law § 73 (5) by attending the antique show in December 1989 and not paying the per person admission charge of $500 for his guest and himself. Section 73 (5) prohibits, generally, the receipt of anything of value over $75 under circumstances where one could reasonably infer a promise of influence or a reward for official action. Additionally, Flynn was accused of violating Public Officers Law § 74 (3) CO, in that accepting the free admission while ultimately bearing responsibility for the approval of leases of the Armory resulted in an "impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties” (Public Officers Law § 74 [3] [f]).

Having retired from State service, Flynn petitioned to prohibit the Commission from proceeding any further against him at this time and circumstance. He argued that the Commission did not have jurisdiction over former State officers and employees. Supreme Court granted the petition, prohibited all pending and future actions relating to Flynn’s former State employment, and nullified all Commission actions taken after Flynn’s retirement in July 1992. The Appellate Division affirmed, holding that the statutory scheme creating the Commission reveals no legislative intent to extend jurisdiction beyond the end of service of the officer or employee. The Court reasoned that a resignation functionally effectuates the ultimate goal of that portion of the reform legislation — departure from State service of employees actually or even potentially responsible for unethical conduct, albeit without the employee necessarily admitting guilt or being found guilty.

The Commission now appeals by permission of this Court. We affirm the order of the Appellate Division and hold that the investigatory and adjudicative authority of the State Ethics Commission under Executive Law § 94 (12) ends when the subject of a Commission ethics probe leaves State service.

The State created this specially charged Commission in 1987 as part of a sweeping ethics reform package known as the Ethics in Government Act (L 1987, ch 813; Executive Law § 94). Among the purposes of the enactment was "to restore public trust and confidence in government” (Governor’s Mem approving L 1987, ohs 813, 814, 1987 McKinney’s Session Laws of NY, at 2727; see also, Forti v New York State Ethics Commn., 75 NY2d 596, 603).

The Commission is not only a creature of statute, it is a uniquely and narrowly invested entity; it thus lacks powers not granted to it by express or necessarily implicated legislative delegation (see, Matter of Foy v Schechter, 1 NY2d 604, 612 [" 'since the jurisdiction of an administrative board or agency consists of the powers granted it by statute, a determination is void and subject to collateral attack where it is made either without statutory power or in excess thereof ”]; 1 Cooper, State Administrative Law, at 41-42 [1965]). Aptly applied to the Ethics Commission, we have said "[a] creature[ ] of the Legislature within the executive branch, can act only to implement [its] charter as it is written” (Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505, 510 [emphasis added]). Jurisdiction to act will be inferred only when it is "required by necessary implication” (Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89, 92 [emphasis added]).

Nowhere do the enactments in the Executive Law or Public Officers Law, created and modified respectively by the Ethics in Government Act, expressly confer jurisdiction on the Commission with respect to former State officers and employees. Executive Law § 94 prescribes that the Commission "shall have and exercise the powers and duties set forth in this section only with respect to statewide elected officials and state officers and employees, as defined in sections seventy-three and seventy-three-a of the public officers law, and candidates for statewide elected office, and with respect to the political party chairman” (Executive Law § 94 [1] [emphasis added]). Section 73 (1) (h) of the Public Officers Law defines the term "statewide elected official,” and section 73 (1) (i) defines "state officer or employee.” Neither section contains any reference to employees who have left State service. Moreover, Public Officers Law § 73-a (1) (a) and (c), which define the same terms in the financial disclosure context, also contain no reference to former State employees.

Thus, giving the pertinent provisions their ordinary meaning, we discern no express or implied jurisdictional reach beyond the actual tenure and service of an employee. Rather, the precise and core grant of statutory authorization to investigate and punish unethical conduct allows the Commission to accomplish the salutary purpose of exposing corrupt or unethical employees in the ranks of State government. If the employees are rooted out by adjudication or by inducing a voluntary departure, a major objective is served. As the Appellate Division observed, the petitioner in this case essentially fulfilled a principal goal of the statute by resigning, albeit without expressly acknowledged or adjudicated guilt, but without the necessity either of a largely academic trumpeting of power by the Commission.

Despite the plain language route we take to the disposition of this statutory construction case, the Commission nevertheless urges the Court to infer continuing, unlimited jurisdiction by reference to the Legislature’s authorization for a "civil penalty in an amount not to exceed ten thousand dollars” on "any person who knowingly and intentionally violates” a series of provisions (Public Officers Law § 73 [14]; Public Officers Law § 73 [5]; § 74 [3] [f]). Relying on this Court’s decision in Matter of Brooklyn Audit Co. v Department of Taxation & Fin. (275 NY 284), the Commission suggests that, in all cases where a statutory scheme authorizes additional or incidental sanctions beyond the primary goal of removal from office, the investigating body should be deemed also to have been given an implied grant of unlimited continuing jurisdiction. In Matter of Brooklyn Audit (supra), the State Department of Taxation and Finance sought to fire a tax examiner pursuant to the Civil Service Law (see, Civil Service Law former § 22). Notwithstanding the employee’s resignation during the pendency of the civil service proceeding, the Court held that the Department retained jurisdiction to issue a subpoena. The Court reasoned:

"If the facts were that the only result of the proceeding would be removal from office, and that nothing survived a resignation, then the latter might terminate the proceeding, a continuation of which would be futile” (Matter of Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284, 286, supra).

Because the Civil Service Law also provided that a removal would foreclose the tax examiner’s future civil service employment (Civil Service Law former § 14), the Court stated that the proceeding could continue notwithstanding the resignation (id.; see also, Matter of Maine Sugar v Wickham, 37 AD2d 381, 383-384).

One key distinction here is that no such additional penalty flows from the action of the Ethics Commission, since directed removal would not, as in Matter of Brooklyn Audit, carry a lifetime ban from State service (see also, NY Const, art VI, § 22 [h]; Matter of Backal, 87 NY2d 1). Instead, the additional penalty the Ethics Commission urges us to recognize as effectuating a grant of extended jurisdiction is the potential imposition of a fine. We decline to rest such a significant and unlimited interpretation of the Commission’s jurisdictional charter on such a strained and slim reed, which is substantively different from the lifetime bans expressly prescribed by statute and constitutional mandate in other areas expressly imposing a future disqualification. Had the Legislature wished to add a similar extended power to the mission of this specially charged Commission, it could have and should have explicitly so prescribed. Open-ended jurisdiction is too important and fundamental to leave to indefinite interpretive molding.

Notably, when the Legislature wishes to extend jurisdiction over former judicial officials in this branch of government, it does so explicitly. Judiciary Law § 47 expressly grants the Commission on Judicial Conduct and this Court some qualified extended removal authority over Judges, notwithstanding resignation from office. In this way, the Legislature has ensured, by specific and limited mandate, that unethical Judges would not escape only the most significant and ultimate sanction merely by resigning. Thus, that extended jurisdiction allows this Court to impose the lifetime bar from future judicial office rooted in the Judicial Conduct Commission’s limited extension of power (cf., Matter of Backal, supra). Nothing comparable appears in the otherwise comprehensive scheme established by the Ethics in Government Act. Thus, this Court should not create continued jurisdiction in the first instance and, in effect, extend it to the Commission.

Relevantly, too, the express grant of statutory authority under the Judiciary Law carries with it a specific time limit beyond which the Judicial Conduct Commission is divested of jurisdiction (Judiciary Law § 47). Thus, that Commission has only 120 days from the date of a resignation to make and transmit a removal determination to the Chief Judge for service on the resigned Judge, publication of the determination, and request for Court of Appeals review, if any (Judiciary Law §§47, 44 [7]). The Ethics Commission’s argument for judicially inferred extended jurisdiction without some expressed legislative source and mandate would allow the Commission’s power to be exercised virtually on an unlimited time basis. That cannot be; surely, authorization for it is not within the legislative contemplation. Yet, it is where the Commission’s theory would logically and necessarily take the principle.

As a last parallel argument, the Commission suggests that the "revolving door” provision in Public Officers Law § 73 (8) warrants the conclusion that the Ethics Commission harbors continuing jurisdiction in all cases under the Ethics in Government Act. Section 73 (8) prohibits former State officers and employees from appearing before their former agencies within two years of leaving State service. Because the statute nowhere specifically states that the Commission has jurisdiction over such former employees, the Commission proposes that such specific authorization is likewise unnecessary in the provision before us in this case. The syllogism fails, however, because the "revolving door” provision, by its essential nature, necessitates jurisdiction over former employees and officers.

If the Commission wishes to exert timeless, across-the-board jurisdiction, it should seek that extraordinary power and delegation explicitly from the Legislature, the source of its existence and special, limited charter.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [661 NE2d 1355, 638 NYS2d 575]
    In the Matter of S & R Lake Lounge, Inc., Respondent, v New York State Liquor Authority, Appellant.
    Submitted October 18,1995;
    decided December 5, 1995

      POINTS OF COUNSEL

      Scott A. Weiner, New York City, and Adrian C. Hunte for appellant.
    The record discloses substantial evidence to sustain the determination of the State Liquor Authority. (Matter of Avon Bar & Grill v O’Connell, 301 NY 150; Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65; Labor Bd. v Nevada Copper Corp., 316 US 105; Labor Bd. v Greyhound Lines, 303 US 261; Matter of Holland v Edwards, 307 NY 38; Matter of Gordon v New York Life Ins. Co., 300 NY 652; Matter of Egan v New York State Joint Legislative Comm., 2 AD2d 418; Matter of Hill, Thompson & Co. v Goodrich, 286 App Div 606; Matter of Stork Rest. v Boland, 282 NY 256; Matter of Burke v Bromberger, 300 NY 248.)

      Richard W. Fulfree, Yonkers, for respondent.
    I. The findings of the State Liquor Authority are not supported by substantial evidence. (Bukawyn v Schweiker, 567 F Supp 533; Hammonds v Schweiker, 535 F Supp 276; Matter of Lahey v Kelly, 71 NY2d 135; Matter of Acosta v Wollett, 55 NY2d 761; Matter of Moorehead v New York City Tr. Auth., 147 AD2d 569; Matter of Duran v Gunn, 135 AD2d 628; Matter of Schorr v Weinberg, 129 AD2d 645; Matter of Furey v County of Suffolk, 105 AD2d 41; Matter of Yerry v Ulster County, 128 AD2d 941; Matter of Gonzales v LeFevre, 105 AD2d 909.) II. The holding in the Court below was correct and it should not be disturbed. (Matter of Austin Lemontree, Inc. v New York State Liq. Auth., 147 AD2d 476, 74 NY2d 869; Matter of Panacea Tavern v New York State Liq. Auth., 144 AD2d 562; Matter of Park II Villa Corp. v New York State Liq. Auth., 141 AD2d 646; Matter of 4373 Tavern Corp. v New York State Liq. Auth., 50 AD2d 855.)
   OPINION OF THE COURT

Ciparick, J.

The question presented is whether respondent’s determination that petitioner violated Alcoholic Beverage Control Law § 65 (1) was supported by substantial evidence given the circumstantial proof in the record. We answer this question in the affirmative.

According to the findings of fact of the Administrative Law Judge (ALJ), which are not controverted in any material respect, on November 3,1990, Timothy Brown (age 19) picked up his friends, Richard Orsini (age 18) and James Louch (age 17), in his car at approximately 11:30 p.m. Brown had with him a container of wine from which all three began drinking. The trio unsuccessfully attempted to gain admittance to several bars before they entered one where Brown, who appeared older than the others, was able to buy beer. However, the beer was confiscated by the bartender when Brown tried to share it with his companions.

The party left this bar and proceeded to petitioner’s premises, a topless establishment, where Brown alone was admitted by the doorman based solely on his appearance. Orsini and Louch were turned away for failure to present proof of age and they remained outside in the car for the entire time Brown was inside, approximately 45 minutes to one hour. During this time, Orsini and Louch returned to the entrance and asked the doorman whether they could speak to Brown. Brown came to the doorway carrying the bottle of beer from which he was seen drinking. Brown endeavored to convince the doorman to admit his friends by offering him $20. The offer was rejected and Brown went back inside the premises. The doorman reported the incident to the manager, who noticed that Brown appeared intoxicated. The manager instructed the bartender not to serve Brown thereafter. No effort was made to verify Brown’s age.

Brown eventually rejoined his friends outside. By this time, all three were intoxicated. Brown began driving erratically and lost control of his vehicle, which struck an unknown object, killing Brown and injuring his passengers. A police officer later examined Brown’s personal effects and the contents of his wallet and found that all forms of identification bore his correct date of birth. No false identification was found.

Respondent charged petitioner with selling alcohol to a minor in violation of Alcoholic Beverage Control Law § 65 (1) and commenced a proceeding to suspend petitioner’s license. A hearing was held on the charge before an ALJ. The ALJ concluded that it could be inferred that Brown obtained the beer inside petitioner’s premises, but because there was no direct proof concerning "the manner in which it was acquired,” there was no substantial evidence to support the charge. The ALJ further noted that the door leading into the premises contained a sign stating "Charge is part of additional cost of first drink;” however, the record was silent as to whether Brown was charged an admission fee on the night in question.

Respondent reversed the findings and conclusion of the ALJ only insofar as the ALJ found that there was a failure to establish the charge by substantial evidence. Respondent imposed a 15-day suspension and $1,000 fine. Petitioner commenced this CPLR article 78 proceeding.

The Appellate Division, with one Justice dissenting, granted the petition, annulled the determination and dismissed the charge. The majority concluded that respondent’s determination was not supported by substantial evidence, because "[t]here was no evidence adduced at the hearing to establish that the petitioner knew or should have known the manner in which the deceased obtained the beer.” (209 AD2d, at 421.) The dissent opined that under the peculiar circumstances of this case, where the minor was deceased and his friends had no opportunity to observe him purchase the beer, "the determination depends perforce upon circumstantial evidence — but it is not for that reason unsound.” (209 AD2d, at 422.)

Respondent urges that its determination was supported by substantial evidence and should not have been disturbed. We agree and therefore reverse the judgment of the Appellate Division.

Substantial evidence is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’ ” (Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65, 71, quoting Edison Co. v Labor Bd., 305 US 197, 229). In order to establish a violation of Alcoholic Beverage Control Law § 65 (1), which prohibits sale or delivery of alcohol to a minor, there must be proof that the proscribed conduct was "open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented” (see, Matter of 4373 Tavern Corp. v New York State Liq. Auth., 50 AD2d 856, citing Matter of Migliaccio v O’Connell, 307 NY 566). Substantial evidence of a violation of section 65 (1) may be supplied by circumstantial proof that the illegal sale or delivery was open and observable (see, Matter of Austin Lemontree, Inc. v New York State Liq. Auth., 74 NY2d 869, affg for reasons stated in mem 147 AD2d 476).

In Austin Lemontree, the Appellate Division concluded that the minor’s presence just three feet away from the bar where four or five bartenders were working at the time the drink was purchased for, and given to the minor, was sufficient to support the conclusion that the petitioner’s illegal conduct was open, observable and capable of prevention through the exercise of reasonable diligence (see, 147 AD2d, at 477). There, the dissenting Justices opined that the record lacked substantial evidence demonstrating that petitioner knew, or should have known, of the proscribed conduct, because there was no testimony concerning the manner in which the unidentified patron obtained the drink he delivered to the minor. In affirming for the reasons stated in the majority’s memorandum, we accepted the view that there was substantial evidence of a violation of section 65 (1) based on the circumstantial evidence present in that case.

. In the instant case, the deceased minor was admitted to petitioner’s premises without showing proof of age. He spent close to one hour inside and was observed walking around with, and drinking from, a beer bottle. He also attempted to bribe the doorman to admit his underage companions, yet his own proof of age was not checked by petitioner at that point. Finally, it was petitioner’s policy to serve at least one drink to each new customer as a means of covering the cost of entertainment.

On this record, it is reasonable to infer that the conduct proscribed by Alcoholic Beverage Control Law § 65 (1) was open and observable and could have been prevented with reasonable diligence. Respondent’s determination was thus based on substantial evidence, that is, " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’ ” (Kopec, supra, at 71). Finally, direct nonhearsay testimony establishing the precise manner in which the minor obtained the alcoholic beverage (see, e.g., Matter of Panacea Tavern v New York State Liq. Auth., 144 AD2d 562; Matter of Park II Villa Corp. v New York State Liq. Auth., 141 AD2d 646) is not a prerequisite to establishing a violation of section 65 (1) where, as here, there is strong circumstantial evidence that the illegal conduct was open and observable (see, Lemon-tree, supra).

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Judgment reversed, etc.

       This section provides: "No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to (1) Any person, actually or apparently, under the age of twenty-one years.”


author: Ciparick, J. Simons, J.

text:
    [661 NE2d 1358, 638 NYS2d 577]
    The People of the State of New York, Appellant-Respondent, v Timothy Miller, Respondent-Appellant.
    Argued October 17, 1995;
    decided December 7, 1995

      POINTS OF COUNSEL

      Howard, R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for appellant-respondent.
    Defendant was properly convicted of attempted robbery in the first degree following his requested instruction on that offense. (People v Campbell, 72 NY2d 602; People v Dlugash, 41 NY2d 725; People v Bracey, 41 NY2d 296; People v Coleman, 74 NY2d 381; People v McDavis, 97 AD2d 302; People v Scott, 159 AD2d 975; People v Esquilin, 159 AD2d 632, 76 NY2d 734; People v Weiss, 276 NY 384; People v Burress, 122 AD2d 588, 68 NY2d 810; People v Terry, 104 AD2d 572.)

      Edward J. Nowak, Public Defender of Monroe County, Rochester (David Juergens. of counsel), for respondent-appellant.
    I. Attempted robbery in the first degree is a nonexistent crime. (People v Martinez, 81 NY2d 810; People v Foster, 19 NY2d 150; People v Campbell, 72 NY2d 602; People v Coleman, 74 NY2d 381; People v Bracey, 41 NY2d 296; People v Ryan, 82 NY2d 497; People v McDavis, 97 AD2d 302; People v Terry, 104 AD2d 572; People v Williams, 40 AD2d 1023; People v Burress, 122 AD2d 588.) II. In the alternative, assuming arguendo that attempted first degree robbery is a legally cognizable offense, the decision of the Court below (to reduce defendant’s conviction to attempted third degree robbery) should be affirmed on the ground that defendant, by his own conduct, did not cause any serious physical injury to the victim. (People v Bell, 48 NY2d 913; People v Malagon, 50 NY2d 954; People v Lipsky, 103 AD2d 1033; People v Saporita, 132 AD2d 713; People v Cullen, 50 NY2d 168; People v Gibson, 65 AD2d 235; People v Bordonaba, 63 Misc 2d 898; People v Adams, 33 AD2d 882.)
   OPINION OF THE COURT

Ciparick, J.

The Appellate Division ruled that attempted robbery in the first degree is a nonexistent crime. A Judge of this Court granted the People leave to appeal and defendant leave to cross-appeal for us to consider this ruling. For the reasons that follow, we now hold that attempted robbery in the first degree is a legally cognizable crime.

Defendant was indicted and charged with two counts of murder in the second degree (Penal Law § 125.25 [1], [3]) and two counts of robbery in the first degree (Penal Law § 160.15 [1], [2]) stemming from his participation in a foiled robbery that left the victim dead from a gunshot wound to the neck. There was testimony at trial that defendant was part of a group of about 15 teenagers who approached the victim, Charles Grimes, before Grimes entered a grocery store. Grimes apparently was known in the area for shoplifting clothing and then recycling it for sale, and had just offered to sell a pair of jeans from the plastic bag he was carrying. While Grimes was in the grocery store, defendant and five others from the group congregated by the bleachers outside a nearby recreation center, where one of the teenagers displayed a gun to his companions.

Approximately 45 minutes to an hour later, this group of six returned to the vicinity of the grocery store and defendant declared that he was going to snatch Grimes’s bag. Two of the teenagers left, stating they wanted no part of "it.” When Grimes subsequently exited the store, the four remaining teenagers pounced on him and defendant attempted to grab the bag. Grimes struggled free, pushed defendant against a wall and hit him with a can. Grimes retrieved his bag, which he dropped during the scuffle, and announced that nothing was going to be taken from him. A shot then rang out. Grimes, holding his bag, bolted with the four teenagers in pursuit. Bystanders testified that they heard 6 to 8 gunshots around the time of this chase. Grimes ultimately collapsed, and a crowd of people gathered around him. The bag of clothing was no longer in sight. A police search of the area failed to turn up a bag containing clothing, although a knit hat and a sweatshirt were recovered on the sidewalk about 150 feet from the grocery store. Grimes died from the single gunshot wound to his neck. The trial testimony was inconclusive as to which teenager possessed the gun.

At trial, defendant requested that the court charge attempted robbery in the first degree and attempted robbery in the third degree as lesser included offenses of robbery in the first degree as charged in counts three and four of the indictment. Count three of the indictment charged that defendant, in violation of Penal Law §§ 20.00 and 160.15 (1), "forcibly stole property * * * a bag of clothing, shirts and pants from Charles Grimes, and in the course of the commission of the crime or of immediate flight therefrom, caused serious physical injury to Charles Grimes, who was not a participant in the crime.” Count four charged that defendant, in violation of Penal Law §§ 20.00 and 160.15 (2), "forcibly stole property * * * and in the course of the commission of the crime or of immediate flight therefrom, was armed with a deadly weapon * * * a handgun.” The court granted defendant’s charge-down request, and after due deliberation, the jury convicted defendant of attempted robbery in the first degree under count three and acquitted him of all remaining counts. Defendant was sentenced to an indeterminate term of 5 to 15 years.

Defendant appealed, arguing that because one of the components of robbery in the first degree is the unintended result of causing serious physical injury, attempted robbery in the first degree is a legal impossibility as the law does not recognize an attempt to commit a crime with an unintended result (see, People v Campbell, 72 NY2d 602). The Appellate Division agreed, and modified by reducing the judgment of conviction to attempted robbery in the third degree, vacated the sentence and remitted to County Court for resentencing (see, People v Miller, 201 AD2d 109). We now reverse.

I

The essence of the crime of robbery is forcible stealing. Under Penal Law § 160.00, a robbery occurs when a person forcibly steals property by the use of, or the threatened use of, immediate physical force upon another person for the purpose of compelling that person to deliver up property or to prevent or overcome resistance to the taking (see, Penal Law § 160.00 [1], [2]; People v Smith, 79 NY2d 309; People v Lopez, 73 NY2d 214; People v Baskerville, 60 NY2d 374; see also, CJI[NY]2d PL art 160, at 160-1002 — 160-1003).

The lowest robbery offense, robbery in the third degree, is committed when a person engages in behavior that results in the forcible taking of another’s property as stated in the definition of robbery in Penal Law § 160.00 (see, Penal Law § 160.05). The core crime is elevated to robbery in the second degree when defendant is aided by another person or when the consequences of the forcible taking are aggravated because the robber or the accomplice displays a firearm or causes physical injury to a nonparticipant (see, Penal Law § 160.10). The most serious robbery offense, robbery in the first degree, is committed when, in the course of the forcible taking of property or immediate flight from the crime scene, the robber or another participant in the robbery "[clauses serious physical injury to any person who is not a participant in the crime” (Penal Law § 160.15 [1]), or "[i]s armed with a deadly weapon” (Penal Law § 160.15 [2]), or "[u]ses or threatens the immediate use of a dangerous instrument” (Penal Law § 160.15 [3]), or displays some type of operable firearm (Penal Law § 160.15 [4]).

This gradation of robbery offenses embodies a legislative determination that the presence of one of the enumerated "aggravating factors” exacerbates the core criminal act and increases the danger of serious physical injury to — or, as in this case, causes the death of — a nonparticipant, thus warranting harsher punishment for the robber (see, People v Lopez, 73 NY2d, at 220, supra; People v Baskerville, 60 NY2d, at 381, supra; see also, 1 LaFave and Scott, Substantive Criminal Law § 1.8 [b], at 69; § 3.8 [a], at 343 [1986]). The enhanced severity of the crime is therefore reflected in the statutory designation of the degree of the offense (accord, People v Maldonado, 86 NY2d 631, 634-635).

II

Our law recognizes an attempt to commit a crime as a separate offense that occurs when a person "with the intent to commit a crime * * * engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). A person who fails to perpetrate the object crime, despite committing some act in furtherance of that illegal end, is nevertheless guilty of an attempt because attempted criminal conduct is a danger to organized society and therefore independently culpable even though the intended result does not ensue (see, 2 LaFave and Scott, Substantive Criminal Law § 6.2, at 24; see also, People v Bracey, 41 NY2d 296, 299, rearg denied 41 NY2d 1010; People v Campbell, 72 NY2d, at 605, supra). Of course, the criminal responsibility of a defendant who commits an attempt is less than but dependent upon the object crime that was intended (see, People v Bracey, 41 NY2d, at 299-300, supra).

III

Defendant postulates that attempted robbery in the first degree is a nonexistent crime because robbery in the first degree has a "result-based” strict liability element — serious physical injury to a nonparticipant — that is inconsistent with the specific intent required to commit an attempted forcible taking. In short, defendant asserts, based on this Court’s statement in Campbell, that "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, at 605, supra). Further, defendant argues that because the crime of robbery in the first degree does not require that the proscribed result — serious physical injury — be in furtherance of the underlying crime, as is the case in felony murder (Penal Law § 125.25 [3]) or assault in the first and second degrees (Penal Law § 120.10 [4]; § 120.05 [6]), an inchoate robbery is not a proper predicate to hold a defendant strictly liable for the conduct of another defendant that results in serious physical injury to a nonparticipant.

Defendant misconstrues the substance of both the crime of robbery in the first degree and an attempt to commit this crime. Notwithstanding the implication by the dissent that the People failed to charge defendant with a crime commensurate with his conduct, it was at defendant’s request that the court charged attempted robbery in the first degree. Defendant possessed the requisite intent to commit a robbery and in furtherance of that intent acted to snatch Grimes’s bag. The fact that defendant came up short by failing to win possession of the bag renders him culpable of an attempted robbery offense (see, Penal Law §§ 110.00,160.05; see also, People v Bracey, 41 NY2d, at 300, supra). And, because in the ensuing flight from the foiled robbery defendant and his cohorts caused serious physical injury to the victim, the severity of the original attempted crime is aggravated, as is defendant’s culpability, due to the greater consequences of the core crime (see, People v Maldonado, 86 NY2d 631, 634-635, supra). Therefore, the jury properly found defendant guilty of attempted first degree robbery (see, Penal Law §§ 110.00, 160.15).

Contrary to the Appellate Division’s conclusion that it is legally impossible to commit the crime of attempted robbery in the first degree because "one of the elements of attempted robbery in the first degree under Penal Law § 160.15 (1) is an unintended result and * * * one cannot have a specific intent to cause an unintended injury” (People v Miller, 201 AD2d, at 113, supra), attempted robbery in the first degree is a cognizable crime, and is particularly germane under the facts of this case. The very structure of the provisions setting forth the degrees of robbery distinguishes this case from People v Campbell, (supra), upon which the Appellate Division relied.

The core robbery offense involves the misappropriation of property under circumstances that pose a danger not only to property but to the person (see, Penal Law § 160.05; 2 LaFave and Scott, Substantive Criminal Law § 8.11, at 437). The culpable mental state is the intent to permanently deprive the owner of that property (see, People v Smith, 79 NY2d, at 315, supra). Whether the robber commits a first, second or third degree robbery offense, the requisite intent remains the same. Thus, the People bear no greater burden to establish a robber’s culpable mental state when that person is charged with first degree robbery as compared to a second or third degree robbery. Rather, it is the presence of statutorily designated aggravating factors which elevates the severity of the crime from a robbery in the third degree to a robbery in the second or first degree. The robber’s conduct is rendered criminal by the forcible taking — or attempted forcible taking — not by an unintended result, as distinguished from Campbell (see also, Penal Law § 15.10).

In Campbell, we reversed defendant’s conviction for attempted assault in the second degree on the ground that such crime is a legal impossibility (People v Campbell, 72 NY2d 602, supra). Assault in the second degree occurs when "[w]ith intent to prevent a * * * police officer * * * from performing a lawful duty, [a person] causes physical injury to such * * * officer” (Penal Law § 120.05 [3]). We reasoned that because this crime imposes strict liability for a result — causing injury — culpability would be imposed even if the resulting injury was "wholly unintended” (People v Campbell, 72 NY2d, at 604-605, supra; see also, People v McDavis, 97 AD2d 302, 303-304). Consequently, we stated that it was of no consequence that the intent specified in Penal Law § 120.05 (3) relates not to the result proscribed by the statute but to the circumstances leading to that result because it is the result — causing injury to the officer— for which defendant is strictly liable whenever that result is produced (see, 72 NY2d, at 605). In contradistinction, the only result proscribed by the robbery statutes is the forcible taking of another’s property and it is this act that the law proscribes regardless of the attendant circumstances. It is the robber’s intent — or "conscious objective” — to permanently deprive the victim of property by compelling the victim to give up property or quashing any resistance to that act that is prohibited by law (see, People v Smith, 79 NY2d, at 315, supra-, see also, Penal Law § 15.05 [1]; § 160.00 [1], [2]; CJI[NY]2d PL art 160, at 160-1002). However, when an attendant circumstance to the robbery is the causing of serious physical injury to a nonparticipant, Penal Law § 160.15 (1) imposes strict liability (see, Penal Law §§ 15.10, 15.15 [2]; see also, People v Coleman, 74 NY2d 381, 385), and elevates the degree of the robbery offense, subjecting the robber to harsher punishment because of the additional grievous consequences produced by the intended forcible taking.

Because strict liability attaches to an aggravating circumstance rather than the proscribed result, it is not the case that a robber charged with attempted robbery in the first degree is being punished for an unintended criminal act, as suggested by the dissent, and as occurred under the second degree assault statute (Penal Law § 120.05 [3]) at issue in Campbell (cf., People v Coleman, 74 NY2d, at 385, supra; People v Saunders, 85 NY2d 339, 343-344). Here, the crime defendant attempted to commit was to compel Grimes to deliver up the bag of clothing, and it is this act that subjects defendant to criminal liability and punishment. That Grimes sustained serious physical injury as a consequence of defendant’s criminal act serves to increase the severity of the punishment. Our statement in Coleman that "[t]he difference between this case and Campbell * * * is that in Campbell there was a congruence between the strict liability element and the proscribed result of the actor’s criminal conduct” applies with equal force here (People v Coleman, 74 NY2d, at 385, supra).

In Coleman, defendant was charged and convicted of attempted promoting prostitution in the second degree for his attempt to entice a 24-year-old undercover officer, whom he believed to be a 15-year-old runaway, into becoming a prostitute. The statute in issue, Penal Law § 230.30 (2), proscribes promoting prostitution of a person less than 16 years old. Defendant argued that attempted promoting of prostitution in the second degree was a nonexistent crime because it criminalized the causing of an unintended result in violation of Campbell. Like the robbery statute in issue here, Penal Law § 230.30 (2) attaches strict liability to an aggravating circumstance— the age of the victim — not to the proscribed criminal result— promoting prostitution. Therefore, we concluded that because defendant believed his intended victim was 15, not 24, he possessed the mental culpability to complete the underlying offense — promoting prostitution — and the fact that he was mistaken as to the victim’s age does not preclude conviction for an attempt of the offense (see, People v Coleman, 74 NY2d, at 385, supra).

Thus, there is no bar to a criminal prosecution of attempted robbery in the first degree. As illustrated by the instant facts, defendant intended to forcibly take Grimes’s bag of clothing and deprive Grimes of that property, and it is this intent that renders his conduct criminal. That he ultimately failed in this act does not negate his intent, rendering his conduct culpable as an attempt. The presence of an aggravating factor — the serious physical injury inflicted upon Grimes — merely serves to elevate the degree of the attempted offense and the severity of the punishment.

In view of the foregoing, defendant’s cross appeal is academic.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts pursuant to CPL 470.25 (2) (d) and GPL 470.40 (2) (b).

Simons, J.

(dissenting). Attempted robbery in the first degree is a nonexistent crime, in my view, and the Appellate Division correctly reduced defendant’s conviction to attempted robbery in the third degree. The result is required by the reasoning expressed in People v Campbell (72 NY2d 602) and contrasted in People v Coleman (74 NY2d 381) and People v Saunders (85 NY2d 339).

A person may be guilty of attempting a crime "when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00 [emphasis added]). In People v Campbell we said "an attempt to commit a crime consists of an intent to bring about the result which the particular law proscribes and, in addition, an act in furtherance of that intent” (People v Campbell, 72 NY2d, at 605, supra [emphasis added]). The statute in Campbell had two discrete elements: (1) while intending to interfere with a police officer’s performance of a lawful duty; (2) defendant caused physical injury to an officer. The first element requires specific intent; the second is an unintended result of the intentional conduct. "Because the very essence of a criminal attempt is the defendant’s intention to cause the proscribed result”, we said "it follows that there can be no attempt to commit a crime which makes the cause of a certain result criminal even though wholly unintended” (id.).

The statute in question in this case is similarly structured to the statute in Campbell: it imposes criminal liability when a person: (1) forcibly steals property; and (2) causes serious injury to a nonparticipant during the commission of or flight from the crime (Penal Law § 160.15 [1]). The distinction between Campbell and this case is that in Campbell, the whole of the defendant’s criminal liability turned on the unintended result, while here, the enhanced liability turns on the unintended result. Where a crime is enhanced by the occurrence of an unintended result, the predicate crime may be attempted, but the enhanced crime cannot. Thus, while there is no doubt that defendant attempted robbery in the third degree, he could not have attempted the enhanced crime of robbery in the first degree because the enhanced liability is imposed solely by defendant having caused serious injury to a nonparticipant, an unintended result that could not have been attempted.

The majority distinguish this case from Campbell "[bjecause strict liability attaches to an aggravating circumstance rather than the proscribed result” (majority opn, at 218). To my mind, it is a distinction without a difference; robbery in the first degree proscribes two results — the stealing of property, and the causing of an injury. While a defendant may intend and attempt the first result, he cannot intend, and therefore cannot attempt, the second.

The majority rely on People v Coleman (74 NY2d 381, supra) for the proposition that one can be guilty of attempt when an aggravating circumstance is one of strict liability. In Coleman, however, the aggravating circumstance was not an unintended result, but was a strict liability element of which defendant was mistaken — the age of the person whose prostitution he was promoting. We expressly distinguished that aggravating circumstance from one "which attaches * * * to the proscribed result of the criminal conduct” (People v Coleman, 74 NY2d, at 385, supra). Thus, the fact that the causing of injury is an aggravating circumstance is not controlling — it is the nature of the aggravating circumstance that requires analysis, and when that aggravating circumstance is causing an unintended result, the enhanced crime cannot be attempted.

In People v Saunders (85 NY2d 339, supra), we held that defendant could attempt the crime of criminal possession of a weapon in the third degree, a strict liability offense. We distinguished Campbell on the basis that attempt liability did not turn on whether the attempted crime was one of strict liability, but on whether the crime purportedly attempted proscribed an unintended result (People v Saunders, 85 NY2d, at 343, supra). We expressly recognized that there is a "distinctive, discrete limited category of crimes to which Campbell refers and to which its analysis applies” (id., at 342). The instant case belongs to that category (see also, People v Esquilin, 159 AD2d 632, lv denied 76 NY2d 734 [attempted kidnapping in the first degree (Penal Law § 135.25 [3]) is a nonexistent crime]).

It is worth noting that there is a vehicle for charging defendant with a crime of equal severity to that sought here. The conduct for which defendant was convicted upon a count of attempted robbery in the first degree is the exact conduct proscribed by felony assault in the first degree. Section 120.10 (4) of the Penal Law provides:

"A person is guilty of assault in the first degree when: * * *
"In the course of and in furtherance of the commission or attempted commission of a felony or of immediate flight therefrom, he, or another participant if there be any, causes serious physical injury to a person other than one of the participants” (emphasis added).

This section imposes the C felony liability that would be imposed for attempted robbery in the first degree (see, Penal Law §§ 160.15, 110.05 [4]).

In my view, concluding that attempted robbery in the first degree is a cognizable crime is contrary to the controlling analysis of People v Campbell, and has no purpose or effect other than to excuse the People for failing to charge defendant with felony assault. Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith and Levine concur with Judge Ciparick; Judge Simons dissents and votes to affirm in a separate opinion.

Order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.


author: Smith, J.

text:
    [661 NE2d 1365, 638 NYS2d 585]
    In the Matter of the Arbitration between A.F.C.O. Metals, Inc., Respondent, and Local Union 580 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, et al., Appellants.
    Argued November 30, 1995;
    decided December 27, 1995

      POINTS OF COUNSEL

      Colleran, O’Hara & Mills, Garden City (Carol L. O’Rourke of counsel), for appellants.
    The underlying dispute falls squarely within the scope of the arbitration clause in section XXXI (f) of the parties’ contract and the Court below exceeded its limited role in reviewing the issue of arbitrability and improperly preempted the arbitration process. (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1; Matter of Enlarged City School Dist. [Troy Teachers Assn.], 69 NY2d 905; Board of Educ. v Barni, 49 NY2d 311; Matter of Lane [Abel-Bey], 70 AD2d 838, 50 NY2d 864; Matter of Sprinzen [Nomberg], 46
    NY2d 623; A.A. Bldg. Erectors v Local Union 580, 189 AD2d 683; Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669; Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 NY2d 348; Rapid Armored Truck Corp. v Local 807, 88 AD2d 434; Rochdale Vil. v Public Serv. Empls. Union, 605 F2d 1290.)
    Respondent, precluded.
   OPINION OF THE COURT

Smith, J.

The appellants claim that the respondent failed to make required contributions to union members’ pension funds and seek arbitration of the dispute. Respondent claims that the dispute concerns what union had the right to perform the work here, a jurisdictional issue not subject to arbitration under the collective bargaining agreement. The issue presented on this appeal is whether the underlying dispute is subject to arbitration under a collective bargaining agreement or whether the dispute is jurisdictional and subject to other dispute resolution mechanisms. We affirm the order of the Appellate Division because the underlying dispute between the parties is a jurisdictional matter which the parties have agreed to exclude from the arbitration procedures provided in the collective bargaining agreement.

A.F.C.O. Metals, Inc. (AFCO), a company engaged in architectural metal works, entered into various contracts to perform construction work at 10 facilities from 1990 to 1992. After notifying the appropriate unions of these contracts, including Local Union 580 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Local 580), AFCO assigned 1 of the 10 projects to Local 580. Eight projects were assigned to the Westchester and New York City Carpenters Unions. All of the projects were duly completed.

A collective bargaining agreement governs labor relations between AFCO and Local 580. Section I of the collective bargaining agreement provides, in relevant part:

"It is agreed that the jurisdiction of work covered by this Agreement is that provided for in the charter grant issued by the American Federation of Labor to the International Association of Bridge, Structural and Ornamental Iron Workers, it being understood that the claims are subject to trade agreements as well as the decisions and awards rendered by the Building Trades Employers’ Association of the City of New York made pursuant to the Joint Trade Arbitration Plan of the New York Building Trades adopted July 9, 1903 with respect to all jurisdictional disputes which may arise under this Agreement.”

Furthermore, section XXII of the collective bargaining agreement, entitled "Grievance and/or Arbitration Procedures” provides in subdivision (f):

"The foregoing provisions for arbitration are not intended and shall not be construed as in anywise qualifying or making subject to change any provisions of this Agreement, including, but not limited to the handling of negotiations for a new Agreement, change in wage scale or jurisdictional disputes.”

The collective bargaining agreement also requires AFCO, as the employer, to make contributions to seven employee benefit funds (collectively, the Funds) maintained on behalf of Local 580 workers, and states that for every fund:

"The required Employer contributions to this Fund shall be made for each straight time hour paid to each employee at the rates stated in Section IX, and for each premium hour paid to each employee, the contribution shall be at premium rates. Premium time is defined in Section VII (b).”

Section XXXI (f) requires arbitration of any dispute arising "in connection with the failure of an Employer to make the required payments to any of the Funds.”

In 1992, after conducting an audit of AFCO, Local 580 determined that AFCO had underpaid the Funds from July 1, 1990 to June 30, 1992 on the theory that the eight projects assigned to the Carpenters Unions during this period should have been allocated to Local 580 employees. Appellants (Local 580 and the trustees for the Funds) subsequently served AFCO with a demand for arbitration seeking the contributions which AFCO would have made to the Funds if the work assigned to the Carpenters Unions had been performed by Local 580 workers. AFCO allegedly owed additional contributions because the work assigned to the Carpenters Unions constituted "work covered” under the collective bargaining agreement with Local 580 even if Local 580 members did not actually perform the work.

AFCO filed a petition to stay the arbitration in Supreme Court, characterizing its dispute with appellants as jurisdictional, and subject to other dispute resolution procedures, because the matter involved competing claims to the same work by different unions. Appellants argued that the parties were embroiled in a fund delinquency, rather than a jurisdictional dispute because the obligation to make contributions to the Funds hinged on the existence of "covered work”, and not the union affiliation of the employees working on the projects.

Supreme Court dismissed AFCO’s petition to stay the arbitration on the grounds that the dispute did not involve jurisdictional issues and that the parties had agreed to arbitrate disputes over employer contributions to the Funds under section XXXI (f) of the collective bargaining agreement. The Appellate Division reversed, and held that the parties’ dispute fell outside of the arbitration clause in section XXXI (f) because fund contributions were being sought for work that had not been performed by Local 580 members. The Appellate Division also found the dispute involved jurisdictional matters governed by procedures enumerated in various agreements outside of the collective bargaining agreement. The arbitration noticed by appellants was permanently stayed.

The threshold question of whether a matter is subject to arbitration must be determined from the terms of the agreement containing the arbitration clause. "The agreement to arbitrate must be express, direct, and unequivocal as to the issues or disputes to be submitted to arbitration” (Gangel v De-Groot, 41 NY2d 840, 841; see also, Bowmer v Bowmer, 50 NY2d 288, 293-294).

A jurisdictional dispute is one "between two or more groups of employees over which is entitled to do certain work for an employer” (National Labor Relations Bd. v Radio & Tel. Broadcast Engrs. Union, 364 US 573, 579). The claim that AFCO owes additional contributions to the Funds assumes that the work awarded to the Carpenters Unions constitutes work covered under the collective bargaining agreement between AFCO and Local 580, and that the work should have been given to Local 580 workers. AFCO has contended that it properly assigned work to the Carpenters Unions pursuant to the documents alluded to in section I of the collective bargaining agreement, which govern the jurisdiction of work. Thus, despite arguments to the contrary, the parties are engaged in a jurisdictional dispute because the parties differ over work assignments and who has the right to perform certain work.

Appellants simply do not answer respondent’s contention that the work awarded to the Carpenters Unions did not constitute work covered under the collective bargaining agreement. Instead, appellants focus on whether "employee,” as used in the various sections governing contributions to the Funds, encompasses workers who do not belong to Local 580. However, because appellants freely concede that their claim to additional contributions depends on the existence of work covered by the collective bargaining agreement, submission of this dispute to arbitration would necessarily require the arbitrator to interpret the term "covered work”. Since the collective bargaining agreement provides that its arbitration provisions do not apply to jurisdictional disputes, the arbitration noticed by Local 580 and the trustees was properly stayed. We do not determine any other issue in this appeal.

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

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

Order affirmed, with costs.

      . Although the collective bargaining agreement in the record is between Allied Building Metal Industries, Inc. and Local 580, the agreement is apparently a "master” which AFCO has adopted and incorporated by reference in a separate agreement between AFCO and Local Union 580.

      . Section V of the collective bargaining agreement, entitled "Work Covered”, describes the type of work which Local 580 workers perform.


text:
    [661 NE2d 1368, 638 NYS2d 587]
    Sydney J. Chase, Appellant, v Julius J. Scavuzzo et al., Doing Business as Scavuzzo & Hart, Respondents.
    Submitted November 28, 1995;
    decided December 28, 1995

      POINTS OF COUNSEL

      Hal Ian Wolsky, Garden City, for appellant.
    The action may not be dismissed as respondents have not complied with the provisions of CPLR 3216 (b). (Cohn v Borchard Affiliations, 25 NY2d 237; Airmont Homes v Town of Ramapo, 69 NY2d 901; Commercial Credit Corp. v Lafayette Lincoln-Mercury, 17 NY2d 367.)

      Julius J. Scavuzzo, Mineóla, respondent pro se, and for another, respondents.
    Because defendants moved to dismiss after plaintiff filed his note of issue, and after plaintiff openly defied a lower court order for over three years, the Court below correctly determined that CPLR 3216 (b) is inapplicable under these facts and, therefore, the 90-day notice provision is not a bar to granting defendants’ motion to dismiss. (Cohn v Borchard Affiliations, 25 NY2d 237; Sortino v Fisher, 20 AD2d 25; Young v Whitney, 111 AD2d 1013; Buffardi v Parillo, 168 AD2d 812; Eastern Shopping Ctrs. v Trenholm Motels, 33 AD2d 930; Miller v Duffy, 162 AD2d 438; Strauss v Title Guar. & Trust Co., 284 NY 41; Fitzpatrick v Woodruff, 96 NY 561; Savasta v 470 Newport Assocs., 180 AD2d 624; Acreage Estates Co. v Shelley, 275 App Div 842.)
   OPINION OF THE COURT

Smith, J.

The issue presented by this appeal is whether the Appellate Division erred in dismissing plaintiff’s complaint for general delay even though defendants failed to serve plaintiff with a 90-day demand to file and serve a note of issue as required by CPLR 3216. We reverse the order of the Appellate Division, to the extent appealed from.

The Present Case

Plaintiff commenced an action for attorneys’ fees earned prior to plaintiff’s suspension from the Bar, and for breach of contract and conversion for defendants’ alleged failure to pay for various law books and furniture. Plaintiff subsequently moved for summary judgment. By order dated August 15,1989, the Supreme Court denied the summary judgment motion and directed plaintiff to file and serve a note of issue as follows:

"This motion by the plaintiff seeking summary judgment is denied. The existence of the agreement upon which the plaintiff’s claims are based is flatly contradicted by the opposing papers. The plaintiff is directed to file and serve a Note of Issue.”

Plaintiff served, but never filed, a note of issue dated October 5, 1989. A second note of issue, dated June 12, 1992, was both served and filed and allegedly received by the defendants on August 7, 1992. On September 1, 1992, defendants moved to strike the note of issue and to dismiss the complaint on the grounds that plaintiff did not, in 1989, comply with Supreme Court’s order to file a note of issue, and that plaintiff abandoned the lawsuit by failing to take any action for three years. Defendants also sought sanctions against plaintiff and plaintiff’s attorneys. The Supreme Court denied defendants’ motion in all respects, noting, inter alla, that notwithstanding plaintiff’s delay, defendants had failed to comply with CPLR 3216.

The Appellate Division modified the Supreme Court order by granting the motion to strike the note of issue and dismissing the complaint, and denying the request for sanctions. The Appellate Division characterized plaintiff’s failure to comply with the August 15, 1989 order to file a note of issue, until August 7, 1992, as general delay. The Appellate Division held that because courts possess the inherent power to dismiss actions for general delay, defendants’ failure to serve a 90-day demand to file and serve a note of issue, as required by CPLR 3216 (b), did not bar dismissal of plaintiff’s complaint.

The plain language of CPLR 3216 provides that no court may dismiss an action, and no party may make a motion seeking dismissal of an action unless a written demand has been served on the party prosecuting the action to serve and file a note of issue within 90 days after receipt of such demand. The demand must also state that failure to serve and file a note of issue within the 90-day period may serve as a basis for a motion to dismiss the action (CPLR 3216 [b] [3]). However, the statute further provides that:

"After an action has been placed on the calendar by the service and filing of a note of issue, with or without any such demand provided, * * * the action may not be dismissed by reason of any neglect, failure or delay in prosecution of the action prior to the said service and filing of such note of issue” (CPLR 3216 [d]).

We conclude that the August 15, 1989 order to file and serve a note of issue did not relieve defendants of serving plaintiff with a written 90-day demand, as required by CPLR 3216 (b) (3), in the event that plaintiff did not serve and file the note of issue.

History and Background of CPLR 3216

Prior to 1964, CPLR 3216 did not require that a demand to serve and file a note of issue be served before a court, on its own initiative or upon motion, could dismiss an action for unreasonable neglect to proceed. CPLR 3216, which went into effect on September 1, 1963 (L 1962, ch 308), originally provided:

"Where a party unreasonably neglects to proceed in the action against any party who may be liable to a separate judgment, the court, on its own initiative or upon motion, may dismiss the party’s pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits”.

On December 10, 1963, approximately three months after CPLR 3216 went into effect, the First Department decided Sortino v Fisher (20 AD2d 25). Sortino identified deficiencies in a number of "excuses” generally proffered to explain delays in prosecuting actions and concluded that ”[a]ny unreasonable delay, depending upon the nature of the case, the degree of merit, and the particular difficulties which the litigating plaintiff faced, may support dismissal” (Sortino, supra, at 28). The Sortino action was dismissed for failure to prosecute because "plaintiffs rested on their oars for about a half-year, a period too long in the light of the lack of merits and the lapse of time since joinder of issue” (Sortino, supra, at 33).

Because a large number of cases were being dismissed under Sortino for failure to prosecute, Sortino triggered a "massive” movement by the plaintiffs’ bar to amend CPLR 3216 (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3216, at 630). The 1964 legislation (L 1964, ch 974) provided that:

1. The court on its own motion or the motion of a party could dismiss an action where a party unreasonably neglected to proceed,
2. Such a dismissal was not on the merits,
3. No motion to dismiss could be made until six months after joinder of issue,
4. No motion to dismiss could be made unless defendant served a written demand requiring that plaintiff serve and file a note of issue and providing further that a failure to comply with the demand within 45 days after service would serve as a basis for a motion by defendant to dismiss for "unreasonably neglecting to proceed,”
5. If plaintiff served and filed the note of issue within 45 days after service of the demand the motion to dismiss would be denied,
6. If plaintiff failed to serve and file the note of issue within 45 days of the demand, the motion had to be granted unless plaintiff showed "justifiable excuse for delay and a good and meritorious cause of action” (see also, Thomas v Melbert Foods, 19 NY2d 216, 219-220; Brown v Weissberg, 22 AD2d 282, 284, n).

The 1964 amendment spawned additional litigation.

In 1965, this Court held that motions to dismiss under CPLR 3216, as amended in 1964, could not be brought unless a demand to serve and file the note of issue had been served (Fischer v Pan Am. World Airways, 16 NY2d 725; Salaam v Cohen, 16 NY2d 1058). However, less than a year later, we distinguished between the authority of courts to dismiss an action for general delay, and pursuant to CPLR 3216, which required service of a demand before an action in which a plaintiff has failed to serve and file a note of issue could be dismissed. In Commercial Credit Corp. v Lafayette Lincoln-Mercury (17 NY2d 367), this Court held that CPLR 3216 had not supplanted the power of courts to dismiss an action for general delay. Subsequently, in Thomas, (supra) we held that courts may dismiss an action for general delay in serving and filing a note of issue even though a defendant has failed to serve a demand as required by the 1964 amendment to CPLR 3216. In 1967, the Legislature repealed and then reenacted CPLR 3216, abandoning the prior versions. The new CPLR 3216 was intended to:

"prohibit the dismissal of an action for failure to prosecute whether on the ground of general delay, or for failure to serve and file a note of issue, unless there has first been served a demand that a note of issue be served and filed within forty-five days” (Governor’s Mem approving L 1967, ch 770, 1967 NY Legis Ann, at 295).

This intent was clearly expressed in subdivision (d) of the statute:

"After an action has been placed on the calendar by service and filing of a note of issue, with or without [defendant’s] demand * * * the action may not be dismissed by reason of any neglect, failure or delay in prosecution of the action prior to such service and filing of the note of issue” (emphasis added).

After a split over the constitutionality of the new CPLR 3216 developed among the Appellate Divisions, we were presented with another opportunity to consider whether dismissal of an action for failure to serve and file a note of issue was solely governed by CPLR 3216. In Cohn v Borchard Affiliations (25 NY2d 237, 246) we acknowledged that one impetus behind the reenactment of CPLR 3216 had been our conclusion in Thomas that courts retained the ability to dismiss an action for general delay even though plaintiff had not been served with a demand to serve and file a note of issue. We stated:

"As it now reads, the statute [CPLR 3216] permits of no doubt as to its meaning: no motion to dismiss for failure to prosecute, brought prior to the filing of a note of issue, may be made unless the defendant has first served the plaintiff with a demand that he file a note of issue. In other words, under the 1967 change, any plaintiff who has neglected to place his case on the calendar for any reason automatically gets a second chance to do so before his case may be dismissed” (Cohn, supra, at 246; see also, Airmont Homes v Town of Ramapo, 69 NY2d 901, 902).

Consequently, courts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216 (b). Thus, defendants’ failure to serve a demand and plaintiff’s self-initiated action in filing and serving the note of issue insulated plaintiff from dismissal for any delay prior to the filing. Any dismissal for delay therefore would necessarily be based upon CPLR 3404.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and defendants’ motion to strike plaintiffs note of issue and dismiss the complaint denied.

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

Order, insofar as appealed from, reversed, etc.

       Except for a 1978 amendment allotting 90 instead of 45 days to serve and file a note of issue after service of a demand, the text of CPLR 3216 has remained unchanged since the 1967 reenactment.


text:
    [661 NE2d 1372, 638 NYS2d 591]
    In the Matter of Campaign for Fiscal Equity, Inc., et al., Appellants, v Ralph J. Marino, as President Pro Tempore and Majority Leader of the Senate of the State of New York, et al., Respondents.
    Argued November 27,1995;
    decided December 28, 1995
    POINTS OF COUNSEL

      Michael A. Rebell and Robert L. Hughes, New York City, Jay Worona and Cheryl Randall, Albany, Juan Cartagena and Jonathan Feldman, New York City, for appellants.
    1. This Court’s decision in Matter of King v Cuomo (81 NY2d 247) requires invalidation of respondents’ withholding procedure. (Heimbach v State of New York, 59 NY2d 891; Matter of Board of Educ. v City of New York, 41 NY2d 535.) II. Respondents have a mandatory duty to present to the Governor bills passed by both houses of the Legislature. (Matter of King v Cuomo, 81 NY2d 247; Meltzer v Koenigsberg, 302 NY 523; Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215; Jiggetts v Grinker, 75 NY2d 411; Matter of Tishman v Sprague, 293 NY 42; People v Bowen, 21 NY 517; Zimmerman v State of New York, 76 Misc 2d 193; People v Rathbone, 145 NY 434; Mester Mfg. Co. v Immigration & Naturalization Serv., 879 F2d 561.) III. Respondents’ withholding procedure violates separation of powers principles. (Matter of King v Cuomo, 81 NY2d 247; Under 21 v City of New York, 65 NY2d 344; Rapp v Carey, 44 NY2d 157; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; People v Devlin, 33 NY 269; New York v United States, 505 US 144; Immigration & Naturalization Serv. v Chadha, 462 US 919; Matter of County of Oneida v Berle, 49 NY2d 515; People v Tremaine, 252 NY 27; New York Pub. Interest Research Group v Carey, 86 Misc 2d 329, 55 AD2d 274, 41 NY2d 1072.) IV. Respondents’ withholding procedure violates principles of open, accountable government. (Matter of King v Cuomo, 81 NY2d 247; The Pocket Veto Case, 279 US 655.) V. New York Constitution, article IV, § 7 should be read to contain an implied "rule of reason” concerning the time line for presentment of a bill. (People v Bowen, 21 NY 517; United States v Kapsalis, 214 F2d 677, cert denied sub nom. Robinson v United States, 349 US 906; United States v Pruitt, 121 F Supp 15, 217 F2d 648, 349 US 907.) VI. Both declaratory and mandamus relief are warranted in the present case. (People v Morales, 37 NY2d 262; People v Pepper, 53 NY2d 213; Gager v White, 53 NY2d 475, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086.)

      Dennis C. Vacco, Attorney-General, Albany {Frank K. Walsh, Victoria A. Graffeo and Peter H. Schiff of counsel), for respondents.
    I. The instant matter has been rendered moot as a result of the lapse of the subject bill. (Cuomo v Long Is. Light. Co., 71 NY2d 349; Matter of Schulz v State of New York, 200 AD2d 936, 83 NY2d 905; Matter of King v Cuomo, 81 NY2d 247; Matter of Doyle, 257 NY 244; Zimmerman v State of New York, 76 Misc 2d 193; New York Pub. Interest Research Group v Regan, 91 AD2d 774; Matter of Hearst Corp. v Clyne, 50 NY2d 707;
      Matter of Schulz v State of New York, 175 AD2d 356, 78 NY2d 862; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Sheehan v Ambach, 136 AD2d 25, 72 NY2d 804.) II. The Court below correctly dismissed the petition on the ground that the State Constitution does not mandate presentment of a bill to the Governor. (Matter of King v Cuomo, 81 NY2d 247; City of Rye v Ronan, 67 Misc 2d 972; Settle v Van Evrea, 49 NY 280; Heimbach v State of New York, 59 NY2d 891, 464 US 956; Matter of Board of Educ. v City of New York, 41 NY2d 535.)
   OPINION OF THE COURT

Smith, J.

The principal issue in this case is whether the State Constitution mandates that a bill passed by both houses of the Legislature be presented to the Governor. Because the practice of retaining legislation passed by both houses of the Legislature does not comply with the Presentment Clause of the New York State Constitution, we reverse the order of the Appellate Division.

The facts are undisputed. Senate Bill No. 3248, known as the "Maintenance of Effort Bill,” was passed by both the Senate and Assembly during 1994 (Mar. 8, 1994 and June 6, 1994, respectively). It was never presented to the Governor before completion of the Legislature’s 1994 legislative session. Appellants filed a combined CPLR article 78 proceeding and declaratory judgment action in August 1994, seeking (1) a judgment declaring that the respondents’ action of withholding from the Governor bills passed by both houses of the Legislature violated the Presentment Clause of the New York Constitution (art IV, § 7) and the rules of the Senate (Senate Rules III, § 2; IV, § 2) and (2) an order directing respondents to present Senate Bill No. 3248 forthwith to the Governor for review.

Respondents’ motion to dismiss the petition / complaint on the grounds of lack of standing, lack of justiciability, and failure to state grounds for relief was granted by Supreme Court. Although finding that appellants had standing to maintain the action, Supreme Court concluded that because the New York Constitution does not specifically mandate when a bill must be presented to the Governor, appellants failed to state grounds for relief.

The Appellate Division affirmed, finding that judicial review of respondents’ actions would intrude into " 'the wholly internal affairs of the Legislature’ (Heimbach v State of New York, 59 NY2d 891).” (209 AD2d 80, 83.) Notwithstanding a finding of mootness, with the lapse of the 1994 legislative session, the Court invoked the exception to the mootness doctrine and reached the merits (citing Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715). The Appellate Division concluded that (1) the issue presented was an internal matter for the Legislature and (2) although a bill passed by both houses of the Legislature and presented to the Governor could not be recalled, the Constitution does not expressly require that all bills passed by both houses be presented to the Governor nor set up a timetable for presentment.

Appellants argue that respondents’ practice of retaining bills passed by both houses of the Legislature and thus effectively blocking executive action in approving or vetoing them violates the Presentment Clause of the New York Constitution (art IV, § 7) and the rationale of Matter of King v Cuomo (81 NY2d 247). Appellants argue further that such procedure violates the principles of separation of powers and open, accountable government, and that article IV, § 7 should be read to contain an implied "rule of reason” as to the time for presentment of a bill to the Governor.

Respondents argue that this Court should affirm the order of the Appellate Division because no constitutional direction, law or rule compels the Legislature to present to the Governor a bill which has passed both houses of the Legislature. We disagree with that argument and the courts below.

Article IV, § 7 of the Constitution states, "Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor.” Implicit in that provision is a requirement that a bill which has passed both houses of the Legislature be presented to the Governor for enactment into law or vetoing within a reasonable time after its passage. We hold that the practice of withholding from the Governor those bills on which both houses of the Legislature have formally acted is violative of article IV, § 7. To hold otherwise would be to sanction a practice where one house or one or two persons, as leaders of the Legislature, could nullify the express vote and will of the People’s representatives. This requirement is constitutionally required and would not interfere with the usual and appropriate interaction of the executive and legislative branches in the making of laws.

This holding is also consistent with Matter of King v Cuomo (81 NY2d 247, supra). In King, the Presentment Clause of the New York Constitution (art IV, § 7) was held violated by the bicameral practice of "recalling” or "reacquiring” passed bills after presentment to the Governor, but prior to gubernatorial action on the bill. King concluded that the Legislature’s practice "undermine[d] the integrity of the law-making process as well as the underlying rationale for the demarcation of authority and power in this process” {id., at 255). The former recall practice allowed legislators, executive agencies and interested groups additional opportunity to influence and affect bills without public inquiry or examination. The practice of withholding passed bills while simultaneously conducting discussions and negotiations between the executive and legislative branches is just another method of thwarting open, regular governmental process, not unlike the unconstitutional "recall” policy which, similarly, violated article IV, § 7.

Moreover, we expressly reject respondents’ argument that the phrase "before it becomes a law” contained in the Presentment Clause is conditional, discretionary or vests in the Legislature "full and unreviewable power over a bill up until the time it chooses to present legislation to the Governor.” Contrary to respondents’ contention, this Clause does not sanction the practice of withholding bills passed by both houses of the Legislature. Federal cases interpreting the parallel provision of the Presentment Clause of the United States Constitution underscore the Clause’s implicit directive (see, US Const, art I, § 7, cl [2]; United States v Munoz-Flores, 495 US 385, 403 [Stevens, J., concurring] ["The Clause states only that bills must be presented to the President”]; see also, Field v Clark, 143 US 649, 672; Immigration & Naturalization Serv. v Chadha, 462 US 919, 946; People ex rel. Peterson v Hughes, 372 Ill 602, 25 NE2d 75, 78 [construing the Presentment Clause of the Illinois Constitution as mandating delivery to the Governor of bills passed]).

Finally, although the practice of withholding bills passed by both houses of the Legislature is not constitutionally authorized, a retroactive ruling in the instant case is not warranted (see, Matter of King v Cuomo, supra, at 256-257).

The Maintenance of Effort Bill should have been presented to the Governor within a reasonable time after it was passed by the Legislature. This conclusion makes it unnecessary to consider the remaining arguments advanced.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring the practice of retaining bills that have passed both houses of the Legislature unconstitutional prospectively from this date.

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

Order reversed, with costs, and judgment granted declaring in accordance with the opinion herein.

       The bill is "[a]n act to amend the education law, in relation to a maintenance of effort requirement for fiscally dependent large city school districts.” The purpose of the bill is to require cities with larger school districts (New York, Buffalo, Rochester, Syracuse and Yonkers) to maintain existing levels of per capita spending for the public schools in their cities and not seek to reduce the local contribution by utilizing the State education appropriations.


author: Ciparick, J. Smith, J.

text:
    [661 NE2d 1374, 638 NYS2d 593]
    Alyce Katz, Appellant, v City of New York, Respondent.
    Argued November 28,1995;
    decided December 28, 1995

      POINTS OF COUNSEL

      DiJoseph Portegello & Schuster, New York City (.Arnold Di-Joseph, III, and. Richard J. Katz of counsel), for appellant.
    I. Since the prior written notice requirements of the Administrative Code of the City of New York were fully complied with, plaintiff was under no additional obligation to prove continuing notice to defendant or to rebut the contents of any more recent notice map which did not also depict the defect in question. Thus, it was error for the trial court to dismiss the complaint. (Hughes v Jahoda, 75 NY2d 881; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Alexander v Eldred, 63 NY2d 460; Tully v Town of N. Hempstead, 93 AD2d 834; De Francisci v Baron, 97 AD2d 453.) II. The interpretation of the prior written notice provision adopted by the trial court and the majority in the Court below is erroneous as a matter of law in that it creates the potential for absurd, illogical and anomalous results never contemplated when the provision was enacted. (Hogan v Grand Union Co., 126 AD2d 875; Leary v City of Rochester, 115 AD2d 260; Zucker v Capitelli, 736 F Supp 449; Matter of Big Apple Pothole & Sidewalk Protection Comm. v Ameruso, 110 Misc 2d 688; Ostermeirer v Victorian House, 126 Misc 2d 46, 121 AD2d 611; Steingart Assocs. v Sandler, 28 AD2d 801; Moran Scow Corp. v Steamship Boston, 342 F Supp 216; Gravel Prods. Div. v Sunnydale Acres, 10 Misc 2d 323.)

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth S. Natrella and Pamela Seider Dolgow of counsel), for respondent.
    The trial court correctly granted the City’s motion for a directed verdict based on plaintiffs failure to demonstrate compliance with the New York City Pothole Law, which requires prior written notice of the alleged defect as a condition precedent to an action for personal injuries allegedly arising from a sidewalk defect. (Laing v City of New York, 71 NY2d 912; Barry v Niagara Frontier Tr. Sys., 35 NY2d 629; Acevedo v City of New York, 128 AD2d 488; Cipriano v City of New York, 96 AD2d 817; Leary v City of Rochester, 115 AD2d 260, 67 NY2d 866; Schwartz v City of New York, 250 NY 332; Matter of Big Apple Pothole & Sidewalk Protection Comm. v Ameruso, 110 Misc 2d 688, 86 AD2d 986, 56 NY2d 507; Hughes v Jahoda, 75 NY2d 881; Yonki v City of New York, 276 App Div 407, 303 NY 852; Walker v Town of Hempstead, 84 NY2d 360.)
   OPINION OF THE COURT

Ciparick, J.

On February 13, 1988, plaintiff tripped on an alleged defect in the sidewalk on Second Avenue between East 71st and East 72nd Street in Manhattan, causing her to fall and suffer injury. In an attempt to comply with the statutory condition precedent of prior written notice, plaintiff filed a map dated June 5, 1986 with the City of New York depicting the defect that purportedly caused her fall. Supreme Court granted defendant’s trial motion for a directed verdict and dismissed the complaint when the City produced a "successor” map, dated November 4, 1987, that did not show any defect in the area of plaintiff’s accident, ruling that plaintiff failed to satisfy the prior written notice requirement. The question presented on this appeal is whether the earlier map can legally satisfy the statutory requisite of prior written notice. We conclude, in the factual circumstances presented, that it cannot and therefore affirm the order of the Appellate Division.

Administrative Code of the City of New York § 7-201 (c) limits the City’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 generally, Poirier v City of Schenectady, 85 NY2d 310, 314). As recognized by plaintiff, prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City (see, Poirier v City of Schenectady, 85 NY2d, at 313, supra; Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633-634). The failure to demonstrate prior written notice leaves plaintiff without legal recourse against the City for its purported nonfeasance or malfeasance in remedying a defective sidewalk. Because this prior written notice provision is a limited waiver of sovereign immunity, in derogation of common law, it is strictly construed (see, Laing v City of New York, 71 NY2d 912, 914; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366).

Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon (see, Weinreb v City of New York, 193 AD2d 596, 598; Acevedo v City of New York, 128 AD2d 488, 489; Matter of Big Apple Pothole & Sidewalk Protection Comm. v Ameruso, 110 Misc 2d 688, 691, affd no opn 86 AD2d 986, lv denied 56 NY2d 507). While admitting that it was served with the map dated June 5, 1986, the City argued in support of its motion for a directed verdict that plaintiff could not rely on an obsolete map which unrefuted trial testimony established was superseded by a map dated November 4, 1987. Based on Big Apple’s policy that subsequent, successor maps supersede earlier maps, Supreme Court found that the notice the City must receive — and upon which it can rely — is the most recent map received from Big Apple prior to an accident allegedly caused by a defect identified on the map.

Concededly, at the time it was filed, the June 5, 1986 map provided notice of defects in the vicinity of plaintiff’s accident. Contrary to plaintiff’s contention, however, this does not shift the burden to the City to show that the defective condition noticed in the June 5, 1986 map was remedied. Nor does it impose a greater burden on plaintiff, as the dissent suggests. As a threshold matter, it is plaintiff’s burden to demonstrate prior written notice of the defect that purportedly caused her accident some 20 months later. Thus, whether Big Apple mistakenly gave plaintiff only one map or plaintiff’s search was insufficient or erroneous is irrelevant; the threshold inquiry is whether plaintiff complied with the notice statute, not whether plaintiff made a good-faith attempt to provide notice. Plaintiff cannot create a fact issue on appeal by arguing that the jury must decide which of the maps controls when she failed to controvert the trial testimony that a subsequently filed map supersedes a previously filed one, especially where the maps are independent records prepared by Big Apple, equally available to all litigants.

We conclude that the City properly requires that prior notice be traced to the most current Big Apple map on file, i.e., the map that is closest in time to the date a defect is alleged to have caused an accident. Given the Department of Transportation’s mandate to maintain all written notices for three years from the date of receipt and thereafter preserve them in the municipal archives for not less than 10 years {see, Administrative Code § 7-201 [c] [3]), a policy that traces notice to the latest dated map diminishes the potential for an arbitrary, selective search of recorded notices. As a practical matter, such a policy is logical based not only on the mechanics of Big Apple’s filing system but also on the reasonable expectation that in the event two Big Apple maps depict the same area and both predate plaintiff’s accident, the later dated map most accurately portrays the area on the date of the accident, factors the dissent fails to address. Thus, requiring a search to proceed from the most current notices back to older notices at once accords the prior written notice provision the strict construction it is due and ensures a fair search of the records.

Finally, it is of no legal consequence that the City did not present any records documenting a repair in the area in question since plaintiff failed to satisfy the condition precedent necessary to proceed with this action.

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

Smith, J.

(dissenting). I dissent because the majority imposes a greater burden of proof upon plaintiff than Administrative Code of the City of New York § 7-201 (c) (2) for establishing that the City of New York received written notice of a defect in a public sidewalk.

Plaintiff tripped on a broken section of a public sidewalk located on the west side of Second Avenue near 72nd Street, and fell, sustaining injuries from her fall. In August 1990, plaintiff commenced this action against various defendants, including the City of New York (City). The City is the only defendant remaining in this action.

In compliance with Administrative Code § 7-201 (c) (2), which provides that a plaintiff may not maintain an action against the City for unrepaired, unsafe, or dangerous sidewalks unless the City has failed to take action to repair or remove the defect within 15 days after receiving written notice of such defect, plaintiff submitted a map filed with the City on June 5, 1986. The map, which showed a defect at the site where plaintiff sustained her injuries, had been prepared by the Big Apple Pothole and Sidewalk Protection Committee, Inc. (Big Apple) and filed on June 5, 1986.

As the majority notes, when Big Apple filed the June 5, 1986 map, the City received written notice of a defect on the sidewalk where plaintiff had her accident (majority opn, at 244). Consequently, plaintiff satisfied the "condition precedent” of proving that the City received written notice of the defect which allegedly caused her fall, as required by Administrative Code § 7-201 (c) (2).

The City does not dispute that it received notice of the defect at issue in 1986. Instead, the City contends that a second map of the same area filed by Big Apple on November 4,1987, which did not indicate a defect on the sidewalk where plaintiff tripped, superceded the June 5, 1986 map.

Prior written notice ordinances are justified because a municipality may not reasonably be held to possess knowledge of all the defects in the public ways within its boundaries. Such ordinances provide a means of giving the municipality a reasonable opportunity to cure defective or unsafe conditions of which it could not otherwise know. Plaintiff established that the City had prior written notice of the defect in 1986 and she was entitled to rely on that evidence to make out a prima facie case. It then became the duty of the City to prove that the 1986 notice incorrectly identified a defect in the sidewalk or that the City had corrected the condition. It failed to do either. Notwithstanding trial testimony that subsequent maps supercede earlier maps, that fact is relevant only to the question of whether a defect shown on an earlier map was subsequently repaired. It does not negate the fact that the first map — like any Big Apple map — served as prior written notice of a defective condition (see, majority opn, at 243).

The "evidence” presented by the City that subsequent maps supercede maps of the same area previously filed with the City, consisted of a bare assertion, grounded in hearsay, by a record searcher employed by the New York City Department of Transportation in its litigation support unit. The record searcher reached the understanding that subsequent filings supercede earlier ones from oral communications with persons who appear twice or three times a year to deliver maps from Big Apple. The record searcher admitted that she never received any information in writing that newly submitted maps supercede maps previously on file. Moreover, the City did not present any witness from Big Apple to this effect. Thus, having received notice of a defect in 1986, the City failed to prove that the defect had been fixed by November 4, 1987.

Having proven that the City received written notice of a defective sidewalk in 1986, plaintiff satisfied her burden. Accordingly, I would reverse the order of the Appellate Division.

Chief Judge Kaye and Judges Bellacosa and Levine concur with Judge Ciparick; Judge Smith dissents and votes to reverse in a separate opinion in which Judges Simons and Titone concur.

Order affirmed, with costs.

       Although plaintiff’s counsel represented that he would produce a witness from Big Apple to contradict the testimony elicited from the employee of the Prior Notification Unit of the Department of Transportation that a subsequent map filed by Big Apple supersedes a previously filed map, plaintiff failed to do so.

       Plaintiffs decision not to call Big Apple as a rebuttal witness is immaterial because plaintiff did not bear the burden of proving that the 1987 map superceded the 1986 map. Moreover, speculation as to the reasons behind plaintiffs trial strategy constitutes mere conjecture and cannot be accorded any evidentiary weight.