author: Chief Judge Kaye. Smith, J.

text:
    [644 NE2d 1305, 620 NYS2d 749]
    In the Matter of Gerald Gordon, Appellant, v Lee P. Brown, as Police Commissioner of the City of New York, Respondent.
    Argued October 20, 1994;
    decided December 6, 1994

      POINTS OF COUNSEL

      Murphy & Maviglia, New York City (Beatrice Maviglia of counsel), for appellant.
    I. In view of the substantial margin for error in drug testing procedures, the failure to give petitioner-appellant the opportunity to confront the witnesses against him is a denial of his constitutional right to a fair hearing. (Matter of Hecht v Monaghan, 307 NY 461; Matter of Schadt v Sordino, 48 AD2d 171; Matter of Heckt v City of Lackawanna, 44 AD2d 763; Matter of Brown v Murphy, 43 AD2d 524.) II. The denial of an opportunity for petitioner-appellant to cross-examine the technicians who actually performed the tests is a denial of due process warranting an annulment of his dismissal. (Goldberg v Kelly, 397 US 254; Capua v City of Plain-field, 643 F Supp 1507; Matter of Erdman v Ingraham, 28 AD2d 5; Matter of Weston v Adduci, 140 AD2d 444; Matter of 245 Elmwood Ave. v New York State Liq. Auth., 14 AD2d 393.) III. In light of the serious defect in the hearing, the penalty of dismissal is unreasonable, arbitrary, unlawful and improper and amounts to forfeiture.

      Paul A. Crotty, Corporation Counsel of New York City (Timothy J. O’Shaughnessy and Stephen J. McGrath of counsel), for respondent.
    I. Petitioner received a fair hearing, comporting fully with his due process right of confrontation. (Idaho v Wright, 497 US 805; People ex rel. McGee v Walters, 62 NY2d 317; Ohio v Roberts, 448 US 56; White v Illinois, 502 US 346, 112 S Ct 736; United States v Inadi, 475 US 387; Fischer v Powers, 957 F2d 609; Reardon v Manson, 806 F2d 39, cert denied sub nom. Reardon v Lopes, 481 US 1020; People v Porter, 46 AD2d 307; Morrissey v Brewer, 408 US 471; Gagnon v Scarpelli, 411 US 778.) II. Dr. Closson’s testimony and the laboratory records provide ample evidence to support the Police Commissioner’s finding that petitioner used cocaine. (Matter of Pell v Board of Educ., 34 NY2d 222; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Stork Rest, v Boland, 282 NY 256; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Collins v Codd, 38 NY2d 269; Matter of Purdy v Kreisberg, 47 NY2d 354; McCann v City of New York, 170 AD2d 193; Matter of Brown v Murphy, 43 AD2d 524.)
   OPINION OF THE COURT

Chief Judge Kaye.

Was petitioner denied due process when, in an administrative hearing on charges of ingesting and possessing cocaine, the New York City Police Department produced the supervisor, but not the technicians, employed by the laboratory that performed the EMIT and GC/MS tests on petitioner’s urine specimen? We conclude, as did the Appellate Division, that due process did not require production of the laboratory personnel where no question was raised as to the general reliability of the procedures, where the supervisor familiar with each step in the procedure was subject to cross-examinatian, and where no claim was made of any particular defect in testing petitioner’s specimen.

Petitioner, a long-time New York City police officer, on June 11, 1991 was randomly selected for DOLE urinalysis drug screening. The sample, taken the next day, tested positive for cocaine, and petitioner was charged with violating Department rules by ingesting and possessing cocaine.

At the departmental hearing, where the results were received in evidence, Dr. William Closson, Director of Forensic Toxicology at the Brunswick Hospital Center, under whose direction petitioner’s specimen was tested, described each step followed to ensure the security of samples and accuracy of results. Although he personally reviewed all of the data and chain of custody documentation in concluding that petitioner’s specimen tested positive for cocaine, he did not himself observe or perform the procedures. The Department called none of the toxicologists who actually did the testing or the laboratory technician who processed the specimen.

As Dr. Closson explained, upon arrival at the laboratory the two vials provided by petitioner were inspected by a laboratory technician, who noted no evidence of tampering. Thereafter, one vial was subjected to an EMIT screening test, performed by a toxicologist under Dr. Closson’s direction. That test, which screened for the presence of 10 different drugs, yielded a presumptively positive result for cocaine, so the same test — which yielded a similar result — was performed on the reserve vial by a second toxicologist. Both vials were then subjected to GC/MS, a more sophisticated procedure able to detect the presence of 16 drugs, for confirmation by a third toxicologist of the preliminary positive results. That test detected benzoylecgonine — a cocaine metabolite detectable in urine for three to four days after ingestion of cocaine — in both vials in amounts three to four times higher than the detection limit. All four results were negative as to the presence of any drug other than cocaine.

After reviewing the recorded data and the chain of custody, Dr. Closson prepared a final report for each vial. Based on the positive results in each vial, he concluded that both samples contained benzoylecgonine and reported a positive result for cocaine. The specimen was retained and provided to petitioner for retesting by an independent laboratory. As part of its case, the Department also produced Sergeant Jacques Rodriguez of the Health Services Division, who testified that he witnessed petitioner fill the vials, place the lids on the vials, initial them, seal them with tamper-evident tape, and insert them in a tamper-evident envelope that was sealed in petitioner’s presence.

At the close of the Department’s case, petitioner moved to dismiss the charges on the ground that, without the laboratory technicians, the evidence was legally insufficient. The hearing officer denied the motion.

Petitioner thereafter testified that he did not ingest cocaine and could not account for the positive results; that he refused the offer of his supervisor to postpone the test on account of an important detail that day; and that he had received awards for Meritorious Police Duty and Excellent Police Duty. Petitioner’s supervisor, Lieutenant Phillip Romano, confirmed that petitioner had declined his offer of a postponement, and testified that he had never suspected petitioner of using drugs.

The hearing officer concluded that the Department had proved by a preponderance of credible evidence that petitioner’s urine specimen contained benzoylecgonine, noting that the chain of custody was intact, the results reliably indicated the substance’s presence, and there was no evidence of tampering or contamination. The hearing officer rejected petitioner’s testimony, observing that "denial is one of the primary defense mechanisms of drug abusers” and that "I do not believe that [petitioner’s] use of drugs would necessarily be apparent to co-workers while he was on-duty.” Accordingly, the hearing officer found petitioner guilty as charged and, noting that petitioner had been designated "Chronic Absent, category A” on four occasions in 1987 and one occasion in 1988, and "Chronic Absent, category B” on five occasions in 1988 and two occasions in 1989, recommended termination. The Commissioner thereupon terminated petitioner.

By this CPLR article 78 proceeding petitioner challenged his termination, alleging that he had unlawfully been denied the opportunity to cross-examine the four laboratory technicians who had handled his specimen. The Appellate Division confirmed the Commissioner’s determination. We granted leave and now affirm.

While the constitutional right of confrontation is confined to criminal proceedings (NY Const, art I, §6; US Const 6th Amend), we have as a matter of due process recognized a limited right to cross-examine adverse witnesses in administrative proceedings (see, Matter of McBarnette v Sobol, 83 NY2d 333, 339; Matter of Friedel v Board of Regents, 296 NY 347, 352-353). In assessing whether due process requires the production of particular witnesses for cross-examination, a hearing officer should consider the nature of the evidence, the potential utility of trial confrontation in the fact-finding process, and the burden of producing the witness (see, e.g., People ex rel. McGee v Walters, 62 NY2d 317, 319-320).

We agree with respondent that, in this case, cross-examinatian of the laboratory technicians was not required. Petitioner neither disputes the general reliability of the testing procedures used (see, Matter of Lahey v Kelly, 71 NY2d 135) nor alleges any particular error in handling or testing his specimen. Moreover, the utility of cross-examination would have been limited by the fact that the technicians are unlikely to recall petitioner’s urine specimen, which, like the 50,000 other specimens tested annually, was identified only by number, and production of the four technicians would impose more than a minimal burden on the Department. Petitioner’s due process right was fully protected in the present case by his opportunity to confront the laboratory supervisor and cross-examine him vigorously about every step of the procedure. That examination yielded no evidence of a problem pointing to the need for further questioning of any employee.

Petitioner’s essential claim is that, without confronting each technician, he was foreclosed from uncovering possible human error in this case. We note that other avenues were available to him — for example, he could (and did) examine the testifying witnesses; the specimen, supporting data and other documentation created by the laboratory were provided to him for independent analysis; and the technicians could have been called by petitioner himself (see, Matter of Gray v Adduci, 73 NY2d 741, 743; see also, United States v Inadi, 475 US 387, 396-397).

In the absence of any particular allegation of error, on this record we cannot agree that the hearing officer’s reliance on the testimony of Dr. Closson was unlawful, and we reject the blanket rule proposed by petitioner that due process in every instance requires production of all such witnesses. We note that several courts have rejected similar challenges even in criminal proceedings (see, Minner v Kerby, 30 F3d 1311 [10th Cir 1994] [admitting testimony of laboratory supervisor regarding results of test performed by subordinate]; United States v Smith, 964 F2d 1221 [DC Cir 1992] [same]; Reardon v Manson, 806 F2d 39 [2d Cir 1986], cert denied sub nom. Reardon v Lopes, 481 US 1020 [same]).

Petitioner’s argument ultimately hinges on one assertion: with an accuracy rate of 99 to 99.9% the GC/MS procedure might possibly yield 500 erroneous results out of 50,000 tests annually, and his results could conceivably have been one of the errors. That statistic refers to Dr. Closson’s testimony regarding erroneous results, not all false positives as petitioner claims. But even more to the point, those rates refer to a single GC/MS test. As Dr. Closson testified, where four separate procedures are performed — two EMIT tests and two GC/MS tests — the "margin of error is as close to zero as possible” (see also, Lahey, 71 NY2d, at 142-143, supra).

Addressing the dissent, we agree that no lesser standard of confrontation should be applied to police officers than to anyone else. Due process does not require, however, that, without some particular challenge, every laboratory employee involved in testing a urine sample be produced at an administrative hearing, which would be the consequence of the rule propounded by the dissent. We share as well the underlying concern that one’s career and reputation not be stained by a single test result where there is any possible error in the testing. But it is no answer to establish a constitutional requirement that the laboratory technicians be produced for cross-examination — which is the issue presented to us for review. Such a requirement is surely unwarranted on this record.

Finally, we reject petitioner’s alternative argument that termination was an unduly harsh penalty, in that " 'the measure of punishment or discipline imposed [was not] so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Pell v Board ofEduc., 34 NY2d 222, 233).

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

Smith, J.

(dissenting). Petitioner had the right to confront the persons who performed the tests leading to his termination from the Police Department. I, therefore, dissent.

The right to confront witnesses is imbedded in American law. "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses” (Goldberg v Kelly, 397 US 254, 269). In another context this Court has stated that a decision dispensing with the right of confrontation must be based on a finding of good cause (People ex rel. McGee v Walters, 62 NY2d 317, 322 [parole revocation hearing]). No good cause for the absence of the witnesses was established here.

This Court should not apply a lesser standard of confrontation to a person who has meritoriously served the police force for a period of 17 years than it does to a person who has been found guilty of a crime and who faces a parole revocation hearing. The sole evidence against the petitioner was a report which found benzoylecgonine, a cocaine derivative, in his urine. Petitioner had been chosen randomly to undergo the test. The evidence is that he used one of two vials, and when he was unable to use the other, a portion of his urine was poured from the first into the second vial.

In People ex rel. McGee v Walters (supra), this Court stated that when the right of confrontation was dispensed with, the administrative tribunal had to consider (1) its favored status, (2) the nature of the evidence at issue, (3) the potential utility of cross-examination, and (4) the State’s burden in being required to produce the witness (62 NY2d, at 319-320). Each of these standards, applied in this case, is favorable to the petitioner. First, the right of confrontation is favored here as it is in all similar contexts where decisions turn on questions of fact. Second, as to the nature of the evidence, the test is the only evidence against petitioner, is decisive on his career and livelihood and is contrary to an outstanding service record. Third, the potential utility of cross-examination lies not only in any notes or records that the tester may have made as the tests were performed but also in the experience of those individuals with determinations that were unreliable. While some of the evidence attempted to demonstrate how carefully the procedures for both the EMIT test and the GC/MS tests were performed, this evidence was no substitute for having the testimony of the persons who actually performed the tests. This is particularly true where the persons performing the tests were still employed by the laboratory and where the petitioner repeatedly objected to testimony concerning the tests in their absence. Since the burden was on the respondent to establish the petitioner’s use of and possession of drugs, it is no answer to say that the petitioner could have called the absent witnesses.

As to the fourth standard, the respondent’s assertions of how burdensome production of the actual testing witnesses would be is not supported by the record. No information whatsoever is provided us to how many proceedings similar to this one are held per year at which the testers might be called to testify.

While the majority cites testimony that the chances of error were close to zero, the testimony of the one expert who testified that there were at least 500 erroneous samples per year out of the 50,000 tests performed cannot be ignored. This testimony must be weighed in the face of petitioner’s sworn denial that he had ever used drugs. In addition, while the majority also points to some chronic absenteeism on the part of the petitioner between 1987 and 1989, the record does not reveal what is meant by "Chronic Absent, category A” and "Chronic Absent, category B.” Moreover, the absences were explained by petitioner as related to a line of duty injury to his knee, and there was no showing that these absences were related to drug use.

Finally, the criminal cases which the majority cites in support of its conclusion that confrontation here was unnecessary are clearly distinguishable and inapplicable here. In each case the substance tested had been obtained from the person of the defendant or his residence. In Minner v Kerby (30 F3d 1311), one issue was whether the notes of a chemist trainee which found cocaine in the substance tested was properly admitted into evidence. The defendant had been found guilty of possession of cocaine with intent to distribute. First, the evidence was that defendant had thrown the substance under a car as the police approached. Second, the chemist trainee was no longer employed even though it was not shown that he was unavailable. Third, the absent trainee’s results had been checked and verified by his superior who did testify. Fourth, separate testing of the same substance had been done by another expert who did testify. Under these circumstances the court ruled that defendant’s right of confrontation had not been violated.

In United States v Smith (964 F2d 1221), a report of a chemist who did not testify was not the sole evidence linking the defendant to crack cocaine. The defendant had been convicted of drug trafficking activity. The evidence was that he had sold cocaine to undercover officers on three occasions. A search of his home pursuant to a search warrant produced more cocaine. The chemist who performed the tests on the crack cocaine found during the search of his home did not testify because of back problems. The trial court permitted the tester’s supervisor to give his opinion of the substance seized based on Federal Rules of Evidence, rule 703 ("Bases of Opinion Testimony by Experts”). No comparable rule of evidence exists in New York State.

In Reardon v Manson (806 F2d 39 [State case is reported at State v Reardon, 172 Conn 593, 376 A2d 65]), the United States Court of Appeals found no confrontation problem when a supervisor gave testimony that certain substances contained marihuana and cocaine. The defendant had been convicted of possession of marihuana and the sale of cocaine. The Second Circuit permitted testimony from the supervisor who personally gave the substances to the toxicologists and to whom test results were brought. Some of the tests were "mechanically objective in nature” (806 F2d, at 41). It is clear that the supervisor both personally supervised and confirmed the tests undertaken.

Finally, while the majority cites Matter of McBarnette v Sobol (83 NY2d 333), for the proposition that there is a limited right to cross-examine adverse witnesses in administrative proceedings, the primary issue there was whether Public Health Law § 230 (11) (a) required written misconduct complaints against physicians to remain confidential where the complainants were known to the physician involved in disciplinary proceedings alleging sexual misconduct and had testified against him. The case certainly does not stand for the proposition that either cross-examination or confrontation of witnesses is limited.

I would reverse and send the case back for a new hearing at which the absent witnesses would be required to testify.

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

Judgment affirmed, with costs.

      . "EMIT” stands for Enzyme Multiple Immunoassay Technique, and "GC/MS” for Gas Chromatography/Mass Spectrometry.

      . To the extent petitioner complains of irregularity during collection of his sample, the Department produced Sergeant Rodriguez, the eyewitness to that event. Petitioner himself stipulated to the absence of Sergeant Limratana, a Health Services officer who approved petitioner’s request to pour urine from one vial into the other (see, dissenting opn, at 581).

      . When petitioner’s attorney asked respondent’s expert whether the error range could be as high as 10% (or 5,000) the expert replied, “I think taken out of context you could say that, yes”. He further indicated that such estimates of error involved "[o]lder contemporary technologies”. He stated further that the newer GC/MS instruments were "more reliable” and that the persons using these instruments in New York State were closely regulated. There was no further elaboration of the differences in the older or newer GC/MS instruments.

      . Petitioner was chronic absent, category A, four times in 1987 and one time in 1988. He was chronic absent, category B, on five occasions in 1988 and two occasions in 1989.


source: Caselaw Access Project

author: Bellacosa, J. Chief Judge Kaye

license: Public Domain

text:
    [644 NE2d 1310, 620 NYS2d 754]
    The People of the State of New York, Respondent, v Ulysses Trammel, Appellant.
    Argued October 21, 1994;
    decided December 8, 1994

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (James Eckert of counsel), for appellant.
    I. The trial court committed reversible error by refusing to charge the defense of justification. (People v McManus, 67 NY2d 541; People v Magliato, 68 NY2d 24; People v Torre, 42 NY2d 1036; People v Steele, 26 NY2d 526; People v Reynoso, 73 NY2d 816; People v Goetz, 68 NY2d 96; People v Flynn, 79 NY2d 869; People v Perry, 61 NY2d 849; People v Jack, 74 NY2d 708.) II. The trial court committed reversible error when it permitted Arthur Gray, who had chosen Mr. Trammel from a photo array, to identify him at trial despite the absence of a timely notice as required by CPL 710.30. (People v Bernier, 73 NY2d 1006; People v O'Doherty, 70 NY2d 479; People v Thomas, 66 AD2d 1001; People v Spinello, 303 NY 193; People v Slater, 53 AD2d 41; People v Briggs, 38 NY2d 319; People v Amparo, 73 NY2d 728.) III. The trial court committed reversible error when it permitted the prosecution to prove in its direct case that Mr. Trammel had possessed a "small handgun” months before the date of the crime alleged. (People v Hudy, 73 NY2d 40; People v Allweiss, 48 NY2d 40; People v Santarelli, 49 NY2d 241; People v Battles, 83 AD2d 164; People v Molineux, 168 NY 264; People v Heath, 175 AD2d 562; People v Roff, 67 AD2d 805; People v Gadsden, 139 AD2d 925.)

      Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for respondent.
    I. Since there was no reasonable view of the evidence to support defendant’s claim that he was justified in shooting Kevin Nelson, the trial court correctly refused to charge the defense of justification to the jury. (People v Steele, 26 NY2d 526; People v Goetz, 68 NY2d 96; People v McManus, 67 NY2d 541;
      People v Watts, 57 NY2d 299; People v Reynoso, 73 NY2d 816; People v Scarborough, 49 NY2d 364; People v Farnsworth, 65 NY2d 734; People v Perry, 61 NY2d 849; People v Collice, 41 NY2d 906.) II. No CPL 710.30 notice was required since Arthur Gray did not identify defendant in a pretrial photo array. In any event, the trial court carefully protected defendant’s rights and any error in admitting Arthur Gray’s identification testimony would be harmless. (People v Gholston, 178 AD2d 546, 79 NY2d 947; People v Burks, 168 AD2d 456; People v Monroig, 111 AD2d 935, 66 NY2d 921; People v Paden, 158 AD2d 554; People v Carroll, 90 Misc 2d 621, 66 AD2d 1032; People v Fuller, 185 AD2d 446; People v Shannon, 182 AD2d 567; People v Cruz, 167 AD2d 306, 77 NY2d 959; People v Bernier, 73 NY2d 1006.) III. The trial court properly permitted evidence of defendant’s prior possession of a handgun. (People v Heath, 175 AD2d 562; People v Ventimiglia, 52 NY2d 350; People v Scarola, 71 NY2d 769; People v Alvino, 71 NY2d 233; People v Roff, 67 AD2d 805; People v Shepherd, 176 AD2d 369, 79 NY2d 832; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Bellacosa, J.

Defendant was convicted, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree. The jury concluded that defendant shot and killed a participant in a street fight. The Appellate Division affirmed and a Judge of this Court granted defendant leave to appeal. The single, dispositive question is whether a trial witness, named Gray, made a "previous! ] identification]” within the pretrial notice requirement of CPL 710.30.

The People notified defendant in timely compliance with CPL 710.30 of their intent to offer testimony at trial from a witness, named Lili, who had previously identified defendant as the shooter. A Wade hearing followed and the People produced evidence with respect to that eyewitness (United States v Wade, 388 US 218). On the day of trial, the People announced their intention to call a new identifying witness, Gray, with respect to whom no CPL 710.30 (1) pretrial notice had been given. Only the latter witness’ identification is at issue, and contrary to the contention in the dissenting opinion, there was never, up to that point, any previous identification of defendant by Gray.

Over defendant’s objection, the trial court conducted a second Wade hearing, concentrating solely on Gray’s potential testimony at trial. A brief colloquy, recorded on the record prior to the hearing, demonstrates that Gray had made no prior identification of defendant. Specifically, the People stated that “[Gray] may be able to pick the person out. He also may not. He doesn’t say he knows who Mr. Trammel is. * * * When he is asked in court and if he looks around the room, that’s going to be the time whether we know he can pick out Mr. Trammel.” Defense counsel also asserted that Gray "indicated he could not identify anyone”. At this point, the hearing court stated that “the purpose of our Wade hearing today is * * * to make an in-court identification.”

At the second Wade hearing held immediately prior to jury selection, the “unnoticed” witness Gray testified that on the night of the homicide he went to the police station and viewed 79 computerized pictures. When asked if he was able to identify defendant, the witness answered, “[n]ot that night”. Two days after the murder, the witness was again asked to try to identify defendant. He testified, “I couldn’t make a positive [identification]” and "I didn’t want to send an innocent man to jail”. On cross-examination by defendant’s counsel, the witness confirmed that he “couldn’t identify anyone”. A police investigator confirmed these assertions which demonstrate that the investigation was unsuccessful in getting Gray to identify defendant. The record therefore confirms that Gray did not make a "previous[ ] identification],” the precise and plain triggering predicate for the notification procedure to be operative (CPL 710.30 [1]).

Following the hearing, the court found that "[t]here were no suggestive statements, nor any suggestive actions communicated by the police,” and permitted witness Gray to identify defendant at trial. Defendant contends that Gray’s identification testimony should have been precluded because of failure of the People to provide a CPL 710.30 notice as to that witness.

CPL 710.30 (1) requires notice of the People’s intent to offer "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him [defendant] as such” (emphasis added; People v Newball, 76 NY2d 587, 590; People v White, 73 NY2d 468, 473, cert denied 493 US 859). We conclude that, based on the record in this case, the witness Gray had not "previously identified [defendant] as such” within the meaning of the pretrial notice requirement.

To treat nonidentification results, under circumstances such as occurred here, as mandating 710.30 notifications would inappropriately and needlessly extend the reach and purport of the statute (compare, People v White, 73 NY2d 468, 474, cert denied 493 US 859, supra). In White, the Court refused to extend the reach of CPL 710.30, stating:

” Although a literal interpretation of the language of CPL 710.30 might suggest that an in-court identification at a Wade hearing or a previous trial constitutes a 'previous identification’, and thus should be covered by its provisions, there is no suggestion in the legislative history or in the background surrounding the statute that it was intended to cover previous in-court identifications” (id., at 474).

The record also allows for no possibility of pretextuality, disingenuity or negligence on the part of the People in failing to give the customary, required notification. None was required. The People were thus under no obligation, in these circumstances, to provide defendant with notice pursuant to CPL 710.30 (1) as to witness Gray because, in addition to there being no previous identification, the People did not intend to call Gray as a witness. Even if we were to treat the police efforts to get witness Gray to make an identification during the early investigation stage as ambiguous, the record supports the conclusion that the prosecutor had no intent to call Gray, precisely because of the tenuous to nonexistent evidentiary nature of the early efforts at identification. Inasmuch as the requirement to give a 710.30 notice as to this individual did not arise within the statutory time limit, there is no occasion to address the statutory good cause exception, the focus of the dissenting opinion (CPL 710.30 [2]).

In any event, when circumstances later developed, as the trial was about to begin, that witness Gray would at that point be willing and able to identify the defendant and would be called by the People to testify, all appropriate procedural safeguards, including a second Wade hearing, were afforded to defendant (see, CPL 710.30 [2]; cf., People v O’Doherty, 70 NY2d 479).

We have considered defendant’s remaining contentions and conclude that they are without merit.

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

Chief Judge Kaye

(dissenting). Because the majority misapplies CPL 710.30,1 respectfully dissent.

CPL 710.30 (1) (b) provides:

"Whenever the people intend to offer at a trial * * * (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered” (emphasis added).

Late notice is permitted only upon a showing of "good cause” (CPL 710.30 [2]).

It is clear from the statute that defendant must be served with notice of intention whenever (1) the People intend to offer testimony at trial (2) regarding an observation of the defendant at the time or place of the offense (3) by a witness who has previously identified defendant. (See also, CPL 710.20 [6] [describing type of potential identification evidence subject to suppression].) As a brief review of the facts establishes, once the People determined to use Gray’s testimony, CPL 710.30 applied.

Days before trial commenced, the People for the first time informed the court of their intent to offer testimony from Arthur Gray that identified defendant as the assailant. In response to defendant’s objection that the People had failed to comply with the notice requirements of CPL 710.30, the People offered the explanation that Gray had only come forward with a "positive” identification of defendant in recent days. A Wade hearing was then held.

The majority is simply wrong when it states that the Wade hearing concentrated "solely on Gray’s potential testimony at trial,” concluding that no pretrial identification procedure took place within the meaning of CPL 710.30. To the contrary, the hearing court stated, "[tjhe purpose of our Wade hearing today is to make sure that if [Gray] seeks to make an in-court identification during the course of this trial * * * that comes from his recollection and not any procedures * * * back when the pictures were being shown to him.”

The hearing testimony established that on the night of the shooting Gray was unable to identify anyone from the numerous computerized photographs he was shown. It was uncertain whether defendant’s picture was even included in that array. Several days later, however, Gray was shown just six photographs. Upon viewing defendant’s photograph, as he later testified, he saw "the person, the face that was from two nights ago.” He selected defendant’s photograph, telling the police officer that "it looks like” the perpetrator although he "can’t be sure” and "can’t get involved” because he was going away to college. After the viewing, Gray and another witness compared their experiences and learned that both had selected defendant’s photograph from the array. More than a year later, just prior to trial, the People determined — under circumstances not fully explained — that Gray now believed he could identify defendant. At that point, the People decided to offer his testimony at trial, and provided defendant with notice of that intent.

At the conclusion of the Wade hearing, the court stated that it was considering admissibility of "potential testimony regarding an observation made of the defendant on an occasion relevant to this case.” It summarized the respective burdens of proof concerning a pretrial identification procedure and made findings of fact concerning the viewing of the photographic array, concluding the procedure was not unduly suggestive.

Unquestionably, the People intended to offer Gray’s testimony at trial once he notified them that his identification was certain. Unquestionably, Gray’s prospective testimony concerned "an observation of the defendant * * * at the time or place of the commission of the offense.” Unquestionably — as the hearing court determined — Gray had identified defendant previous to trial. These facts brought Gray’s testimony within the ambit of CPL 710.30, which by its terms applies whenever the People intend to offer such testimony, not just within the first 15 days after arraignment.

In light of the findings of fact and conclusions of law concerning the suggestiveness of the pretrial identification procedure, it is puzzling indeed that the majority concludes no pretrial identification took place here, and that CPL 710.30 did not apply to this testimony. This is the sort of late notice that the statute seeks to prevent, and to excuse only if there is good cause.

In People v O’Doherty (70 NY2d 479), we held that where the People do not establish good cause for delay, it is error to permit late notice and admit such evidence at trial. Lack of prejudice to a defendant resulting from the delay "does not obviate the need for the People to meet the statutory requirement of good cause before they may be permitted to serve a late notice” (id., at 481). Acknowledging a legislative policy determination that the sanction of preclusion would foster efficient conduct of criminal prosecutions, we emphatically rejected the People’s complaint that preclusion is not "an acceptable price to pay to achieve the desired goals” (70 NY2d, at 489). The majority now retreats from O’Doherty by permitting late notice of an identification without a showing of good cause simply because the People did not intend at the outset to use that testimony.

It is to compel the People to act with efficiency and foresight that CPL 710.30 permits late notice only upon a showing of good cause. Because "good cause” is the sole standard for determining whether identification testimony should be permitted notwithstanding late notice, none of the other considerations put forward by the majority serves to excuse the People’s late notice. In particular, the fact that a Wade hearing was held here on the admissibility of Gray’s testimony did not excuse late notice. Although CPL 710.30 (3) provides that a defendant who has moved to suppress evidence may not challenge a failure to provide timely notice, that exception is inapplicable where — as here — the defense unsuccessfully moved to preclude for late notice, and the suppression hearing was held on the court’s own motion (People v Amparo, 73 NY2d 728). In approving the "procedural safeguard” of a Wade hearing as a corrective to late notice, the majority — ignoring our holding in Amparo — creates an alternative remedy for violation of the notice requirement. The sole remedy authorized by statute, however, is preclusion.

While the People may have been able to establish that Gray’s change of heart as to the certainty of his identification constituted good cause, no such claim was made. The People’s present claim concerning the circumstances leading to their change of intention about Gray’s testimony was not fully presented. Instead, the People asserted they were altogether exempt from any notice requirements, despite the plain language of the statute. Accordingly, the People failed to meet their burden of establishing good cause for late notice.

It was error to deny defendant’s motion to preclude upon a determination that defendant was not prejudiced, and I would therefore reverse the Appellate Division order and order a new trial.

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

Order affirmed.


author: Chief Judge Kaye.

text:
    [644 NE2d 1314, 620 NYS2d 758]
    In the Matter of Anthony P. Depczynski, Respondent, v Adsco/Farrar & Trefts et al., Appellants. Workers’ Compensation Board, Appellant.
    Argued October 18, 1994;
    decided December 8, 1994

      POINTS OF COUNSEL

      William L. Weinstock, New York City, and Raymond C. Green for Adsco/Farrar & Trefts and another, appellants.
    I. On the record in this case, the Board properly found, based on claimant’s admission that he knew 10 years ago that his hearing loss was work related, that claimant’s self-diagnosis was sufficient to qualify as "knowledge” under Workers’ Compensation Law § 49-bb. There is nothing in Workers’ Compensation Law § 49-bb or the canons of statutory construction to support the holding of the court below’s majority that the word "knowledge” in that section means only knowledge based on a medical opinion. (Matter of Fullerton v General Motors Corp., 46 AD2d 251; Matter of Terino v Levitt, 44 AD2d 167; Matter of Citny v Atlas Steel Casting Co., 33 AD2d 853; Matter of Collins v Aluminum Co., 44 NY2d 692; Matter of Graham v Walsh Constr. Co., 30 AD2d 996, 23 NY2d 643; Matter of Ward v Merritt, Chapman & Scott, 30 AD2d 1010.) II. The meaning of the word "knowledge” in Workers’ Compensation Law § 49-bb presents an issue which requires deference to the Board’s underlying construction of that term. (Matter of Fisher [Levine], 36 NY2d 146; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Howard v Wyman, 28 NY2d 434; Ostrer v Schenck, 41 NY2d 782; Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150.) III. The Board’s decision, finding that claimant failed to file his claim for occupational loss of hearing within the statutory periods provided for in Workers’ Compensation Law §§ 28 and 49-bb and is therefore time barred, is supported by substantial evidence and is correct as a matter of law.

      G. Oliver Koppell, Attorney-General, New York City (Theresa E. Wolinski, Jerry Boone, Peter H. Schiff and Jane Lauer Barker of counsel), for Workers’ Compensation Board, appellant.
    Whether a claimant acquired knowledge of an occupational loss of hearing within the meaning of Workers’ Compensation Law § 49-bb is a question of fact to be resolved by the Board on a case-by-case basis. (Matter of Cerami v City of Rochester School Dist., 82 NY2d 809; Matter of Thomas v

      Bethlehem, Steel Corp., 63 NY2d 150; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Fisher [Levine], 36 NY2d 146; Matter of Manhattan Pizza Hut v New York State Human Rights Bd., 51 NY2d 506; Matter of Citny v Atlas Steel Casting Co., 33 AD2d 853; Matter of Graham v Walsh Constr. Co., 30 AD2d 996, 23 NY2d 643; Matter of Ward v Merritt, Chapman & Scott, 30 AD2d 1010; Matter of Collins v Aluminum Co., 44 NY2d 692.)

      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo (John A. Collins of counsel), for respondent.
    I. Anthony P. Depczynski’s claim for workers’ compensation benefits is not time barred. (Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Fisher [Levine], 36 NY2d 146; Matter of SIN, Inc. v Department of Fin., 71 NY2d 616; Matter of Citny v Atlas Steel Casting Co., 33 AD2d 853; Matter of Collins v Aluminum Co., 44 NY2d 692; Matter of Graham v Walsh Constr. Co., 30 AD2d 996, 23 NY2d 643; Matter of Ward v Merritt, Chapman & Scott, 30 AD2d 1010; Matter of Curtin v City of New York, 287 NY 338; Matter of Wojciechowski v Bethlehem Steel Co., 15 AD2d 422.) II. Appellants’ position is not supportable on policy grounds. (Matter of Johannesen v New York City Dept. of Hous. Preservation & Dev., 84 NY2d 129; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505.)
   OPINION OF THE COURT

Chief Judge Kaye.

Under a special statute relating to workers’ compensation claims for occupational hearing loss, claims must be filed, in cases of delayed discovery, within 90 days after "knowledge” that the hearing loss is causally related to the employment (Workers’ Compensation Law § 49-bb). Where the employee himself attributed a recognized hearing loss to occupational noise exposure, but did not medically confirm that belief for more than 10 years, when was there "knowledge” sufficient to trigger the 90-day limitations period? We conclude that the statute’s knowledge requirement was satisfied, and the 90-day period commenced, by the employee’s own admitted awareness of injury and causation, even in the absence of formal medical diagnosis.

Claimant was hired in 1948 as a laborer in the shop area of Farrar & Trefts (now Adsco Manufacturing Corp.), a boilermaker and metal fabricator. For 34 years he was regularly exposed to what he described as "[vjery, very heavy noises” caused by riveting, hammering and other heavy metalwork. Claimant left Adsco in June 1980 and has not been exposed to loud noise in subsequent employment. Nearly 10 years later, in December 1989, claimant filed a workers’ compensation claim for hearing loss caused by exposure to injurious noise while employed by Adsco/Farrar & Trefts. Adsco’s workers’ compensation carrier, the State Insurance Fund, controverted the claim on several grounds, primarily untimeliness.

Approximately a year later, in November 1990, claimant was fitted for a hearing aid and in January 1991 was examined by Dr. Sayeed Nabi, an otolaryngologist, who diagnosed a "noise induced, moderate to severe neurosensory hearing loss” of 41.9%. According to claimant, Dr. Nabi was the first to inform him that his hearing loss had been caused by occupational noise.

At the workers’ compensation hearing, claimant conceded that he had noticed a hearing loss some time in 1980. When asked if he knew at that time "that your hearing problem was due to your work at Adsco” claimant testified: "Oh yes, it had to be. It’s the only place it could have been.” The carrier presented the opinion of its expert that claimant’s hearing loss was only 31.2%. The Workers’ Compensation Law Judge (WCLJ) concluded that the claim was timely filed within 90 days of the medical diagnosis, found that claimant had suffered a 31.2% hearing loss, and awarded compensation of $105 per week for 46.3 weeks from the date of disablement, found to be July 1, 1980.

The Workers’ Compensation Board reversed and dismissed the claim as untimely, finding that "Claimant admitted that he knew ten years ago his hearing problem was work related.” The Appellate Division reversed and reinstated the claim, holding that only r'actual (i.e., medically based) * * * knowledge” — a medical diagnosis of work-related hearing loss— would trigger the 90-day limitations period (195 AD2d 74, 77). Upon the court’s remittitur for recomputation of the award, the parties stipulated to a 36.55% hearing loss, and the WCLJ awarded claimant compensation of $105 per week for 54.825 weeks. We granted leave to respondents Adsco, State Insurance Fund and Workers’ Compensation Board, and now reverse.

Statutes of Limitation represent the balance struck by the Legislature between the competing concerns of plaintiffs in being afforded a reasonable time to bring their claims and defendants in not having to resist stale claims (see, United States v Kubrick, 444 US 111, 117). Occupational diseases, however, which may manifest themselves — and their relationship to the employment — slowly, alter this balance in favor of delaying commencement of the limitations period until the nature of the problem is clear (see, Urie v Thompson, 337 US 163,170).

In 1920 the Legislature specifically authorized workers’ compensation for occupational diseases (see, Workers’ Compensation Law art 3; L 1920, ch 538), and in 1958 provided particularly for occupational hearing loss (see, Workers’ Compensation Law art 3-A, added by L 1958, ch 974). Hearing loss, unlike other occupational diseases, may be reversible if the injured worker is removed from the harmful exposure, and the statute therefore makes such claims payable only after a three-month separation from exposure to the harmful noise (Workers’ Compensation Law § 49-bb; see generally, IB Larson, Workmen’s Compensation § 41.52). The lapse of time permits accurate assessment of the extent of the hearing loss after any temporary loss subsides (see, Minkowitz, Practice Commentaries, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law § 49-bb, at 622).

While claims must generally be brought within two years after the date of disablement (see, Workers’ Compensation Law §§ 28, 38), the statute treats hearing loss differently from other occupational diseases in cases of the claimant’s delayed discovery. Claims for occupational disease must be filed "within two years after disablement and after the claimant knew or should have known that the disease is or was due to the nature of the employment” (Workers’ Compensation Law § 28). By contrast, occupational hearing loss claims are timely if filed "after such two year period within ninety days after knowledge that the loss of hearing is or was due to the nature of the employment” (Workers’ Compensation Law § 49-bb). The two-year limitations period was provided for all occupational diseases except occupational hearing loss because "the period of 90 days after knowledge is too short a time for a claimant who is seriously ill to be allowed to file a claim” (see, Mem of Workers’ Compensation Bd, reprinted in 1984 McKinney’s Session Laws of NY, at 3387, 3388; see also, L 1984, ch 659).

There is no dispute that the claim at issue was filed more than two years after the date of disablement, found to be July 1, 1980. There is likewise no dispute that claimant actually knew in 1980 that he had a hearing loss caused by his work at Adsco. The only question is when the 90-day limitations period set forth in section 49-bb commenced — with claimant’s knowledge, or only upon formal medical confirmation.

Urging that we adopt the Appellate Division’s conclusion, claimant contends that he had the requisite statutory "knowledge” of the cause of his hearing loss only after Dr. Nabi’s diagnosis in January 1991. Respondents answer that the statute simply requires "knowledge,” not a medical diagnosis, and that we must in any event defer to the Board’s interpretation of the statutory scheme. While we disagree that the Board’s interpretation of the statutory term "knowledge” — a law question — is entitled to deference (see, Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150, 154), we agree with respondents that a medical diagnosis is not an invariable requirement of "knowledge” under Workers’ Compensation Law § 49-bb, and that in this case claimant’s conceded awareness of his condition and its cause triggered the limitations period.

In an analogous case, United States v Kubrick (444 US 111), the Supreme Court rejected plaintiffs contention that his medical malpractice claim accrued under the Federal Tort Claims Act only after he was informed of the hospital’s negligence, despite his own admission that he had known of his injury (hearing loss) and its probable cause (exposure to neomycin) within a year of discharge from the hospital. The Court was:

"unconvinced that for statute of limitations purposes a plaintiffs ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask.” (Id., at 122.)

For much the same reason, claimant’s argument that only a medical diagnosis can trigger the section 49-bb limitations period must be rejected (see also, 2B Larson, Workmen’s Compensation § 78.41 [d], at 15-271 ["it is not necessary for the claimant to know the exact diagnosis or medical name for the condition if he or she knows enough about its nature to realize that it is both serious and work-connected”]). As in Kubrick, claimant, "armed with the facts about the harm done to him, [could have protected] himself by seeking advice in the medical and legal community.” (444 US, at 123.)

Claimant is properly chargeable with his decade-long delay in seeking the medical or legal assistance necessary to lodge his claim. Were we to accept as a rigid rule that the limitations period is commenced only upon a medical diagnosis, accrual of claims for hearing loss — a condition readily appreciated by laypersons, not requiring expert medical knowledge or diagnosis — would be entirely within a claimant’s control. Indeed, in this case, claimant delayed seeking a formal diagnosis until more than a year after filing his claim. Employers would have no recourse against injured workers who delay for years, if not decades, before seeking a medical diagnosis for the purpose of finally pursuing their claims. Such delay serves neither the interest in affording a reasonable time in which to bring claims nor the interest in putting stale claims to rest.

In that a medical diagnosis is not an invariable requirement of "knowledge” for purposes of commencing the section 49-bb limitations period and, as the Board found, claimant was aware of both his injury and its probable cause during 1980, we conclude that his claim filed more than two years from the date of disablement (see, Workers’ Compensation Law § 28) was properly dismissed as untimely.

Accordingly, the decision of the Workers’ Compensation Board appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the claim dismissed.

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

Decision of the Workers’ Compensation Board appealed from and order of the Appellate Division brought up for review reversed, etc.

       Other jurisdictions have reached a similar conclusion (see, Frasure v Union Pac. R. R. Co., 782 F Supp 477 [CD Cal 1991]; Jones v Maine Cent. R. R. Co., 690 F Supp 73 [D Me 1988]; McCoy v Union Pac. R. R. Co., 102 Ore App 620, 796 P2d 646 [1990]; see also, McCombs, Occupational Hearing-Loss and the FELA: When Does the Cause of Action Accrue?, 44 Ala L Rev 555, 570-571 [1993] ["summary judgment on the issue of an expired statute of limitations is only appropriate (where) there is uncontradicted testimony that the plaintiff knew of the occupational disease and that the occupational disease was work-related more than three years before the date of filing suit”]).


author: Titone, J. Levine, J.

text:
    [644 NE2d 1318, 620 NYS2d 762]
    Daniel A. Yalango, an Incompetent, by Alan P. Goldberg, the Committee of His Property, Appellant, et al., Plaintiff, v A. John Popp et al., Defendants; O’Connell and Aronowitz, P. C., Respondent.
    Argued October 26, 1994;
    decided December 8, 1994

      POINTS OF COUNSEL

      Herzog, Engstrom & Koplovitz, P. C., Albany (Frederick B. Galt of counsel), for appellant.
    I. The Court below failed to conduct the analysis required by section 474-a (4) of the Judiciary Law. (Gair v Peck, 6 NY2d 97; Borgia v City of New York, 42 Misc 2d 924, 20 AD2d 851, 15 NY2d 665; Werner v Levine, 52 Misc 2d 653; Mahler v American Airlines, 49 Misc 2d 693; Reid v County of Nassau, 158 Misc 2d 26; Matter of Clinton, 157 Misc 2d 506; National Bank & Trust Co. v Banco De Vizcaya, 72 NY2d 1005.) II. The courts below utilized improper factors in upholding respondent’s application. (Matter of Freeman, 34 NY2d 1; Reid v County of Nassau, 158 Misc 2d 26; Maxwell v State Farm Mut. Auto. Ins. Co., 115 AD2d 190; Dumlao v State Farm Ins. Co., 173 AD2d 517; Morse v Palatine Ins. Co., 33 Misc 2d 205, 17 AD2d 657; Southeastern Shipping Corp. v National City Bank, 18 Misc 2d 997; Matter of Clinton, 157 Misc 2d 506.)

      O’Connell and Aronowitz, Albany (Cornelius D. Murray of counsel), respondent pro se.

    I. The Court below properly construed section 474-a (4) of the Judiciary Law in determining when reasonable counsel fees may be awarded in lieu of the schedule prescribed by subdivision (2) of that same section. (Saxton v Carey, 44 NY2d 545.) II. The Court below applied the proper factors in determining that extraordinary circumstances existed under section 474-a of the Judiciary Law. (Matter of Freeman, 34 NY2d 1; Gair v Peck, 6 NY2d 97, 361 US 374; Werner v Levine, 52 Misc 2d 653; Mahler v American Airlines, 49 Misc 2d 693; Reid v County of Nassau, 158 Misc 2d 26; Borgia v City of New York, 42 Misc 2d 924, 20 AD2d 851, 15 NY2d 665.) III. The Court below properly held that there was no abuse of discretion by the trial court in setting a reasonable fee of one third of the net recovery because of extraordinary circumstances. (O’Brien v O’Brien, 66 NY2d 576; Majauskas v Majauskas, 61 NY2d 481; Matter of Freeman, 34 NY2d 1.)
   OPINION OF THE COURT

Titone, J.

The sole issue presented on this appeal is whether respondent law firm has met the criteria for departing from the mandatory medical malpractice attorney’s fees schedule set forth in Judiciary Law § 474-a (2) (see, Judiciary Law § 474-a [4]). Because respondent failed to demonstrate that its compensation under the schedule was inadequate, we reverse the Appellate Division order affirming the grant of additional compensation to respondent firm, and deny the application.

In June 1986, then 35-year-old plaintiff Daniel Yalango underwent brain surgery at Massachusetts General Hospital for the removal of a colloid cyst discovered after he sought treatment for recurring nosebleeds. On July 7, 1986, less than one week after his discharge from Massachusetts General, plaintiff appeared at the emergency room of defendant Albany Medical Center Hospital complaining of headaches, nausea, and vomiting. Yalango was diagnosed as suffering from a postcraniotomy headache and discharged. Approximately three weeks later, on July 26, plaintiff was taken to defendant Ellis Hospital’s emergency room in Schenectady, New York, with the same complaints, and was again discharged with a similar diagnosis. No computed tomography (CT) scan, magnetic resonance imaging or other radiologic diagnostic tests were performed during either of these two emergency room visits.

On July 27, Yalango, experiencing the same symptoms, reappeared at Albany Medical Center’s emergency room, and was admitted for observation after a CT scan of the brain revealed the presence of bifrontal subdural hygromas — a collection of fluid on the brain. On the following day, upon a deterioration of his condition, emergency surgery was performed on Yalango by defendant A. John Popp, M.D., to relieve the pressure on the brain caused by the hygromas. Yalango ultimately sustained severe and permanent injuries, including brain damage, spastic quadriparesis and cortical blindness. He will require continuous skilled nursing care for the remainder of his life.

Respondent law firm O’Connell and Aronowitz was retained on a one-third contingent fee basis to commence a medical malpractice action against defendants Dr. Popp and the two upstate hospitals on behalf of plaintiff Yalango and his wife. The theory of the complaint was essentially that defendants failed to diagnose Yalango’s condition of increased intracranial pressure in a proper and timely fashion, despite the presence of clear warning signs, and failed to conduct necessary diagnostic tests that would have revealed that condition in time to remedy it. According to plaintiffs’ experts, Yalango’s brain had shifted as a direct and proximate result of the increased intracranial pressure, and that shift caused Yalango’s permanent injuries.

Prior to trial, the parties settled the claims against defendant Albany Medical Center for $1.3 million and against defendant Ellis Hospital for $630,000, and discontinued the claim against defendant Dr. Popp with prejudice. On motions by respondent firm, Supreme Court approved both settlements in accordance with CPLR 1207.

Respondent simultaneously moved to increase its compensation from $338,731.74 — the amount prescribed by the fee schedule contained in Judiciary Law § 474-a (2) — to $629,105.81 — one third of the total recovery — on the ground that "extraordinary circumstances” were present in this case within the meaning of Judiciary Law § 474-a (4). Specifically, respondent contended that extraordinary circumstances existed because the two attorneys assigned to represent Yalango engaged in diligent and extensive efforts to master the complex and sophisticated medical issues involved, including spending hundreds of hours searching for, contacting, and meeting with numerous medical experts, both in and out of State, and conducting extensive depositions, totalling over 1,100 pages of transcript. Respondent firm also pointed to the fact that it had negotiated a favorable settlement, despite the possible existence of a previously undiagnosed and untreatable deep venous thrombosis that raised questions as to causation and a potential defense to liability. In sum, the firm alleged that it expended approximately 620 hours on the representation over a five-year period. Plaintiff-appellant Yalango, through his committee, opposed the increased fee application.

Supreme Court granted the application. The court found that extraordinary circumstances existed by virtue of the "difficult and complex” nature of the case, the multiple defendants, the difficulty in obtaining experts, and respondent firm’s over-all "exhaustive and thorough review of all aspects of this case.”

The Appellate Division affirmed, over a one-Justice dissent, holding that the trial court did not abuse its discretion in finding extraordinary circumstances here. The majority recognized that counsel’s diligence led to a "successful pretrial settlement,” despite the fact that the "difficulty in proving malpractice and proximate cause” rendered liability "tenuous against both hospitals” (199 AD2d 825, 826). The Court also rejected appellant’s contention that, to comply with the mandates of Judiciary Law § 474-a (4), the court must "make a separate finding that the fee provided in the statutory schedule was inadequate” (id., at 826). The lone dissenter concluded that Supreme Court "misapprehended its role” under section 474-a (4) when it departed from the statutory schedule on a finding that the case was extraordinary "in the sense of the number of witnesses, the complexity of the issues and the length of time taken * * * without regard to whether the schedule adequately compensates the attorneys” (id., at 827). The dissenting Justice would have reversed and remitted for a determination of "whether, in fact, extraordinary circumstances exist such that plaintiffs’ attorneys will not be adequately compensated by the statutory fee schedule” (id., at 829). Because we conclude that respondent was adequately compensated under Judiciary Law § 474-a (2)’s schedule, we reverse and deny the application.

Judiciary Law § 474-a (2) establishes a mandatory fee schedule for attorneys who are retained to prosecute medical malpractice claims on a contingent fee basis. The statutory schedule reduces the percentage of contingent compensation an attorney may receive as the sum of the plaintiff’s recovery increases by specified increments. The percentages are calculated on the net sum recovered by the plaintiff after deducting full "expenses and disbursements for expert testimony and investigative or other services properly chargeable to the enforcement of the claim or prosecution of the action” (Judiciary Law § 474-a [3]). The "net sum” of the recovery is generously defined to include taxes and accrued interest (id.; see also, Reid v County of Nassau, 158 Misc 2d 26, 27).

The statutory formula for moderating attorney’s fees in medical malpractice actions was enacted in 1976, and amended in 1985, as part of a comprehensive State legislative initiative to reduce the spiraling medical malpractice premium rates fueled by enormous plaintiffs’ verdicts and the high costs of litigation (see, Governor’s Mem approving L 1976, ch 955, 1976 McKinney’s Session Laws of NY, at 2461; Mem of Executive Dept re L 1985, ch 294, 1985 McKinney’s Session Laws of NY, at 3022). As part of this effort, the Legislature purposely reduced the percentages of the plaintiff’s award to be allocated to attorneys as the amount of the award increases to ensure that "insurance premium dollars [are directed] primarily to the plaintiff’s compensation” and " 'to diminish the distortion of such high [attorney’s fees] awards on the system’ ” (1985 McKinney’s Session Laws of NY, at 3022-3023). The 1985 amendment to Judiciary Law § 474-a eliminated the one-third recovery as an option and relegated medical malpractice attorneys to the percentages contained in the fee schedule (L 1985, ch 294, § 15).

The Legislature also recognized, however, that on occasion the blanket fee levels could impose an extraordinary hardship on a plaintiff’s attorney due to the particular "complexity or cost of the case” (1985 McKinney’s Session Laws of NY, at 3023). To mitigate any such harsh effects, provision is made in Judiciary Law § 474-a (4) for a plaintiff’s attorney, who "believes in good faith that the fee schedule * * * because of extraordinary circumstances, will not give him [or her] adequate compensation” to apply to the trial court for an increased fee (emphasis added). "[I]f extraordinary circumstances are found,” that section further authorizes the trial court, in its discretion, to "fix as reasonable compensation for legal services rendered an amount greater than that specified in the schedule” — provided that the greater compensation does not exceed the fee fixed by retainer agreement (Judiciary Law § 474-a [4]).

Inadequacy of the statutory fee schedule is the touchstone of the section 474-a (4) inquiry. The analysis must begin with the recognition that the section 474-a (2) scheduled fees are presumptively reasonable in all malpractice cases (see, Gair v Peck, 6 NY2d 97, 113, 114, supra). To succeed on a request for excess compensation, then, the applicant bears the burden of rebutting that presumption by establishing that the fee schedule was inadequate to compensate counsel for the representation provided in the particular case (id.; Matter of Clinton, 157 Misc 2d 506, 510, supra). Thus, before departing from the statutory fee schedule, the court must make a threshold finding that a departure from the fee schedule is justified because the authorized fee did not equitably compensate counsel. That a threshold showing of inadequacy must be made before relief based on extraordinary circumstances may be granted is self-evident from the plain and unequivocal language of the statute which expressly calls for that predicate. Thus, the fear expressed by Judge Levine that respondent could not have been aware of its obligation to put forth such proof is ill-founded (see, Levine, J., concur ring-dissenting opn, at 611). Indeed, the requirement that such a foundational showing be made is a critical means of effectuating the Legislature’s fee-limiting purpose of the statute.

The considerations which are relevant to an assessment of the adequacy of the section 474-a (2) fees are those related to the economics of the litigation and any concomitant financial hardship suffered by plaintiff’s counsel. In other words, in determining whether extraordinary circumstances caused the fee to be inadequate, governing emphasis should be placed on whether the award — viewed as a whole or broken down to its hourly equivalent — equitably compensates counsel for "the amount of time reasonably and necessarily spent” in litigating the claim (People v Perry, 27 AD2d 154, 161). Under this formulation, the statutory fee may be inadequate, for example, where the case involves an extremely complicated procedural history or where plaintiff’s counsel is required to expend an inordinate amount of time in pursuing the medical malpractice claim, thereby rendering the hourly rate of compensation exceptionally low or causing a loss of other income or some other financial detriment. Once that threshold showing is made, counsel must then justify a departure from the fee schedule by demonstrating that extraordinary circumstances caused the statutory fees to be unreasonable in the particular case.

Accordingly, to the extent that the courts below failed to consider whether the statutorily authorized fees in this case were inadequate to compensate counsel, they misapprehended their judicial function under the statute. We decline to remit the matter for a determination of the inadequacy of the statutory fees as the dissent below recommends, however, because in this case it is indisputable that the statutory fee was not inadequate.

Respondent was awarded $338,731.74 by application of the statutory percentages. Relying on respondent’s estimation that it expended 620 hours in representing plaintiff, respondent was compensated at a rate of almost $550 per hour. Respondent does not — nor could it — claim that this rate was somehow unjust. Additionally, based on that 620-hour figure, respondent’s representation of plaintiff roughly averaged only 10 hours per month over a five-year period. Under these circumstances, respondent would be hard-pressed to establish that its services necessarily expended in pursuit of plaintiff’s claim caused it to forego other practice or otherwise imposed some financial hardship (cf., Matter of Armani, 83 Misc 2d 252, 258; see also, People ex rel. Conn v Randolph, 35 111 2d 24, 27, 219 NE2d 337 [departure from fee schedule in indigent criminal defense case where attorneys were required to live away from home and to suspend their practices throughout year-long trial]). Indeed, the procedural history of this case never progressed beyond pretrial settlement negotiations, and counsel was not required to suspend its practice to attend to a protracted or all-consuming trial (cf., People v Perry, 27 AD2d 154, 158, supra). Accordingly, a remittal to Supreme Court, as Judge Levine ultimately recommends (see, Levine, J., concurring-dissenting opn, at 612), would constitute an inefficient use of judicial resources.

Because respondent has failed to demonstrate that the compensation in this case was inadequate, we need not address whether extraordinary circumstances existed in this case. We note, however, that factors such as the degree of diligence or success achieved by counsel, the essential factors relied upon by respondent here in seeking excess compensation, do not render a case extraordinary for purposes of the section 474-a (4) application (see, Matter of Clinton, 157 Misc 2d 506, 510, supra). The adjustment provision was not designed to reward successful results, nor diligent, thorough or even exhaustive preparation on behalf of a client (Reid v County of Nassau, 158 Misc 2d 26, 30, supra). Notably, the percentages contained in the fee schedule are set at levels intended to provide " 'ample compensation for the best efforts and services of competent counsel’ ” (Gair v Peck, 6 NY2d 97, 103, 112, supra [emphasis added] [quoting preamble to Rule 4]). Further, attorneys in this State are not only encouraged but are expected to zealously represent all clients (see, Code of Professional Responsibility DR 7-101 [22 NYCRR 1200.32]), and this Court has long recognized that correlating legal fees with "financial reward” rather than reasonableness "would be unprofessional” (Matter of Freeman, 34 NY2d 1, 11, supra). In any event, the attorney’s success is already accounted for under the graduated fee schedule which authorizes compensation based on a percentage of the recovery fund (see, Reid v County of Nassau, 158 Misc 2d 26, 30-31, supra).

Similarly, neither the technical complexity of the medical issues (cf., People v Perry, 27 AD2d 154, 161, supra) nor the existence of a dispute concerning proximate cause will render the case "extraordinary” (cf., McGrath v Irving, 24 AD2d 236, 238). Medical malpractice actions are by their nature complex, warranting extensive and sophisticated preparation. In fact, it is quite routine and ordinary in a medical malpractice action for causation to be in dispute or attributable to multiple defendants (see, Reid, 158 Misc 2d 26, 30, supra). Moreover, it is customary for parties to "produce the testimony of various experts and to be technically well prepared to develop that testimony or to cross-examine witnesses produced by the opposite side” (Morse v Palatine Ins. Co., 33 Misc 2d 205, 205-206). Finally, although counsel may engage in extensive travel in securing expert medical consultations, those costs do not constitute extraordinary circumstances impacting on the adequacy of the fee because they are reimbursable in full as disbursements for expert testimony or investigation in prosecuting the action (see, Judiciary Law § 474-a [3]).

In sum, respondent has made no showing that it suffered any economic detriment in attending to this case, which was settled prior to trial, such as a loss of income or practice or devotion of an inordinate amount of time, that would render application of the fee schedule here unjust. Thus, no departure from the mandatory fee schedule pursuant to Judiciary Law § 474-a (4)’s mitigating provisions is warranted.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the application of O’Connell and Aronowitz denied.

Levine, J.

(concurring in part, dissenting in part). I agree with the majority that the courts below erred in determining that a departure from the statutory fee schedule of Judiciary Law § 474-a (2) was justified here solely on the basis of the extraordinary circumstances they found in this malpractice case, without determining whether those circumstances rendered inadequate the statutory fee that would otherwise apply. I, however, would remit to Supreme Court for further proceedings, including the submission of additional proof by the respondent law firm.

The issue of what circumstances in a medical malpractice case can justify a departure from the statutory fee schedule of Judiciary Law § 474-a (as amended, L 1985, ch 294, § 15) is one of first impression for this Court. The majority articulates new criteria for making that determination, essentially that, because of extraordinary circumstances, the fee schedule is inadequate to equitably compensate counsel due, for example, to a resulting unjust hourly rate of compensation or other established loss of income or other financial detriment occasioned by the representation. This test, which I believe is appropriate, is not readily discernable from lower court precedents. Nor is it easily derived from the legislative history, which only states in relevant part that malpractice plaintiffs’ attorneys could obtain greater compensation than the schedule fees if "warranted because of the complexity or cost of the case” (Mem of Executive Dept, 1985 McKinney’s Session Laws of NY, at 3023 [emphasis supplied]).

Thus, the respondent law firm can hardly be faulted for failing to provide in its application for additional fees the factual showing required to satisfy the exacting standard newly fashioned by this Court. Moreover, it is by no means certain that respondent cannot meet that standard. Although the majority focuses solely on its calculation of the resulting hourly fee in holding no inadequacy of compensation here, plaintiff’s guardian ad litem, appointed sua sponte by Supreme Court, who made a thorough examination of the firm’s litigation files and interviewed the lawyers who handled this case, opined in his report recommending approval of the firm’s fee application that the firm spent substantially more time on the case than was recorded in its time sheets submitted to the Court. Further, the majority recognizes that, notwithstanding that application of the fee schedule results in a just hourly rate, the statutory compensation may nevertheless be deemed inadequate due to loss of other income or practice or other financial detriment resulting from counsel’s devotion of his or her time and energies to the representation. Nor has the majority unequivocally rejected, on the issue of fee inadequacy, consideration of such factors as tenuous liability and exceptional skill of counsel which have traditionally been considered fee relevant in other contexts (see, Matter of Freeman, 34 NY2d 1, 9).

Although it may not ultimately succeed, I believe the respondent firm should have an opportunity to thoroughly develop and submit proof of these and other relevant facts, and perhaps even expert opinions, to support its application under the rigorous standard articulated by this Court today. Therefore, I respectfully dissent from so much of the majority’s decision that dismisses respondent’s application for additional fees, and would remit to Supreme Court for further proceedings on the firm’s application.

Chief Judge Kaye and Judges Simons, Smith and Ciparick concur with Judge Titone; Judge Levine dissents in part in a separate opinion in which Judge Bellacosa concurs.

Order reversed, etc.

      . The schedule limits attorney’s fees by applying the following correlations: 30% of the first $250,000 of the sum recovered; 25% of the next $250,000 of the sum recovered; 20% of the next $500,000 of the sum recovered; 15% of the next $250,000 of the sum recovered; 10% of any amount over $1,250,000 of the sum recovered.

      . As originally passed, Judiciary Law § 474-a substantially codified "Rule 4,” a judicial rule adopted in 1957 by the Appellate Departments in response to the noted perception that contingent fees in malpractice actions provided plaintiffs’ attorneys with a windfall and diverted compensation from the injured person (Mem of Executive Dept re L 1985, ch 294, 1985 McKinney’s Session Laws of NY, at 3019, 3022; Matter of Clinton, 157 Misc 2d 506, 508). Rule 4 abolished the previously employed 50% contingency fee and limited contingent fees for attorneys in personal injury actions to an express schedule of fees or one third of any recovery (Gair v Peck, 6 NY2d 97,101, n, cert denied, appeal dismissed 361 US 374 [I960]).

      . Judiciary Law § 474-a (4) substantially tracks the language of former Rule 4 (d) (see, Gair v Peck, 6 NY2d 97, 101-102, n, supra [setting forth text of Rule 4]).

      . In fact, the statutory fees were intentionally set at generous levels to preempt any claim that the low compensation might remove the incentive for the plaintiffs’ Bar to accept medical malpractice cases (see, 1976 Report of Special Advisory Panel on Medical Malpractice, at 43; Letter from Superintendent of Ins, at 3, Bill Jacket, L 1976, ch 955).


text:
    [644 NE2d 1325, 620 NYS2d 769]
    Leonard Land et al., as Administrators of the Estate of Howard Land, Deceased, Appellants, v County of Ulster et al., Respondents.
    Argued October 19, 1994;
    decided December 13, 1994

      POINTS OF COUNSEL

      Richard I. Cantor, Poughkeepsie, for appellants.
    I. The failure of a county treasurer to issue a tax sale certificate pursuant to Real Property Tax Law § 1006 (2) to a county which is the purchaser of real property at a tax sale invalidates the tax sale. (Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; Metz v Dorsey, 146 AD2d 845; Matter of Elinore Homes Co. v St. Lawrence, 113 AD2d 25; Culspar, Inc. v County of Essex, 119 Misc 2d 4.) II. The County Treasurer erroneously prohibited competitive bidding at the tax sale; this error constituted a jurisdictional defect that invalidated the tax sale. (Matter of Countywide Realty Co. v Bruen, 18 AD2d 259, 14 NY2d 604; Culspar, Inc. v County of Essex, 119 Misc 2d 4; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378.)

      Wapner, Koplovitz, Futerfas & Stegmayer, Kingston Joshua N. Koplovitz of counsel), Francis Murray, County Attorney of Ulster County (Mark D. Frering of counsel), and Howard C. St. John & Associates (Richard A. Anthony of counsel), for respondents.
    I. Where, as here, the County Treasurer is both seller and buyer, the requirement that a tax sale certificate be issued for each property sold is an unnecessary formality. (Metz v Dorsey, 146 AD2d 845, 74 NY2d 714; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378.) II. A certificate of sale is only required to be given following payment of the amount of the bid and here no payment was made or was required to be made. III. The filing of the County Treasurer’s sworn statement when read together with the previously filed notice of sale constitutes substantial compliance with the tax sale certificate requirement. IV. Even if RPTL 1006 (2) requires the issuance of a certificate where the County is the purchaser and the filed documents do not satisfy the "Certificate” requirement, then the tax sale is still valid because the lack of a certificate is a nonjurisdictional irregularity and is not serious enough to warrant an invalidation of the tax deed. (Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; Saranac Land &

      Timber Co. v Roberts, 208 NY 288.) V. Real Property Tax Law § 1006 is inapplicable herein in light of the later amendment to RPTL 1008 (3). (Metz v Dorsey, 146 AD2d 845, 74 NY2d 714.) VI. The County Treasurer was duly authorized and empowered to purchase all tax-delinquent properties on behalf of the County without competitive bidding. (Matter of Countywide Realty Co. v Bruen, 18 AD2d 259, 14 NY2d 604.)
   OPINION OF THE COURT

Chief Judge Kaye.

When a county purchases tax-delinquent land pursuant to RPTL 1008 (3) — the statutory provision that permits such purchases to take place without competitive bidding — must the county treasurer issue a certificate of sale to the county (see, RPTL 1006 [2])? We answer that question, as did the Appellate Division, in the negative: failure to issue the County of Ulster a certificate of sale in the circumstances presented did not void the County’s purchase of petitioner’s property.

This proceeding concerns two empty parcels of land in Woodstock for which petitioner owed respondent 1988 taxes in the amounts of $1,054.90 and $6,075.06, respectively. After passage of a resolution permitting purchase of tax-delinquent property by the County Treasurer without competitive bidding, the County Treasurer on September 29, 1989, purchased numerous parcels of tax-delinquent land, including petitioner’s, for the amounts due. Payment was effected through bookkeeping entry, rather than actual transfer of money, and no tax sale certificate was issued. Following expiration of the redemption period the properties were conveyed to the County by tax deeds, recorded April 1, 1992. The County then conditionally sold the parcels to respondents Stock and Gugliotta on April 24, 1992.

Petitioner, who resided out of State, remained unaware of these developments until after the conditional sale. By letter dated May 27, 1992, and in a subsequent proceeding pursuant to RPAPL article 15, petitioner unsuccessfully sought cancellation of the sale of his property, alleging that the County Treasurer’s failure to issue to the County certificates of sale pursuant to RPTL 1006 (2) at the time of the September 29, 1989 purchase was a "jurisdictional defect” under Culspar, Inc. v County of Essex (119 Misc 2d 4, 7). A divided Appellate Division upheld the validity of the sale. Because we conclude that failure to issue a certificate of sale was not fatal to a valid conveyance of petitioner’s property, we affirm the Appellate Division order.

RPTL 1026 (1) forbids conveyance of any lands sold for taxes if the county treasurer discovers, prior to transfer, that the sale "was for any cause invalid or ineffectual to give title to the real property sold.” In contending that failure to issue a tax sale certificate rendered the transfer of title a nullity, petitioner begins from the premise that all formal requirements governing tax sale proceedings must be scrupulously satisfied, because the result is divestiture of title to real property (Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378, 389). In particular, every "material provision designed for the security [and protection] of the persons taxed” must be complied with in effecting a tax sale (Cruger v Dougherty, 43 NY 107, 121). Because, however, not every requirement in the procedures governing tax sales is critical to the security and protection of the taxpayer, we recognized as well in Kiamesha that some irregularities are not so serious as to affect valid transfer of title or warrant setting aside of a tax sale (Kiamesha Dev. Corp., 4 NY2d, at 385).

"Much confusion of thought has been caused by attempts to draw distinctions between irregularities [in tax sale proceedings] and so-called jurisdictional defects” (Saranac Land & Timber Co. v Roberts, 208 NY 288, 311). Failure to comply substantially with requirements that inure to the benefit of the taxpayer, such as determination of whether delinquency even exists, whether the correct property was identified and whether notice was afforded the taxpayer, are examples of "jurisdictional” defects that operate to invalidate a sale or prevent passage of title (Saranac Land & Timber Co., 208 NY, at 311; Werking v Amity Estates, 2 NY2d 43, 49; People ex rel. Boenig v Hegeman, 220 NY 118, 122). Nonfatal defects, by contrast, include formal errors that do not affect the integrity, reliability or fairness of the transfer, such as affixing the incorrect seal to a warrant issued to the receiver of taxes (Boenig, supra) and minor errors in description that do not lead to misidentification of a parcel (Blum v Nassau Purch. & Bldg. Corp., 256 NY 232; McCoun v Pierpont, 232 NY 66).

The County’s failure to issue itself a tax sale certificate, if a defect at all, did not affect the validity of the transfer.

Article 10, title 1 of the Real Property Tax Law governs tax sales by county treasurers to enforce collection of delinquent taxes. Conduct of a tax sale is governed by RPTL 1006. Competitive bids are received on the designated day by the county treasurer (RPTL 1006 [1]). Counties are empowered to bid on lands, and a successful competitive bid by a county has the same effect as that of an individual (RPTL 1008 [1]). The successful bidder is obligated to pay the amount of the bid within 48 hours of the close of the sale (RPTL 1006 [2]). A county purchasing lands from itself need not formally comply with this requirement, however; a bookkeeping entry rather than an actual cash transfer constitutes "payment” where buyer and seller are the same party (Matter of Ueck, 286 NY 1, 13). Payment of the amount of the bid obligates the county treasurer to issue a "tax sale certificate” describing the parcel purchased, the amount paid, and the time when the purchaser will be entitled to a deed (RPTL 1006 [2]).

Counties alone may follow an alternative course in purchasing tax-delinquent lands. Under RPTL 1008 (3), the county board of supervisors may dispense altogether with competitive bidding at a tax sale, and instead direct the county treasurer to purchase lands for the gross amount of delinquent tax due. In enacting this change, RPTL 1008 (3) was amended in 1973 to eliminate all reference to "bids,” instead authorizing outright "purchases” by the county (L 1973, ch 301). Moreover, by the 1973 amendment, the provisions of 1008 (3), when properly invoked, govern county land purchases "[notwithstanding any other provision of law,” indicating legislative intent that invocation of RPTL 1008 (3) overrides all other procedures dealing with noncompetitive bidding.

While the County Treasurer indisputably failed to comply with the formal requirement of RPTL 1006 (2), issuance of a tax sale certificate was not required as a precondition to a valid sale. The County’s purchase took place pursuant to RPTL 1008 (3) rather than RPTL 1006, and therefore no "bid” was ever entered. The requirement that a certificate be issued is not triggered until a bid is accepted and payment made under RPTL 1006, a procedure not required here.

Nor would the alleged benefits of the certificate of sale have reached the taxpayer (cf., Werking v Amity Estates, 2 NY2d 43, 49, supra [sale notice provision "(w)ithout question * * * enacted for the benefit of the taxpayer”]). Rather, the required information on a tax sale certificate — the amount of the bid and the date of the sale — protects the purchaser by providing evidence of interest in the property pending expiration of the redemption period, after which the purchaser would be entitied to a deed (RPTL 1018). Until such time as the deed is issued, the certificate is the purchaser’s proof of the sale.

To the extent that the certificate incidentally provides information that is crucial to determination of a taxpayer’s right of redemption under RPTL 1010 where the county is the purchaser, that information is readily ascertainable from other sources. The purchase price will invariably be the gross amount of delinquent tax due (RPTL 1008 [3]), and was here set forth in the notice of sale. The date of the sale — and the commencement of the redemption period — was evidenced by the County Treasurer’s sworn statement attesting to the purchase of the lands on September 29,1989.

Petitioner’s remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

Judges Simons, Titone, Bellacos a, Smith, Levine and Ciparick concur.

Order affirmed, etc.