author: Titone, J.

text:
    Robert E. Cannon et al., Appellants, v Albert M. Putnam, Respondent.
    Argued September 13, 1990;
    decided October 23, 1990

      POINTS OF COUNSEL

      John A. Collins for appellants.

      Mitchell M. Stenger and Donald B. Eppers for respondent.
   OPINION OF THE COURT

Titone, J.

Labor Law § 240 (1) and § 241, which impose certain nondelegable safety duties upon "contractors^] owners and their agents,” specifically exempt "owners of one and two-family dwellings who contract for but do not direct or control the work.” In this appeal, we are asked to consider the scope of this exemption and, in particular, the degree to which it is available when the work relates to property used for both residential and commercial purposes. We hold that, under the circumstances of this case, where the commercial activities were housed in structures that were completely separate from the owner’s dwelling place and the work was unrelated to the commercial structures, an owner who has not directed or controlled the work may invoke the exemption.

Defendant Albert Putnam owns a 33-acre parcel in the Town of Hamburg, New York. The property contains several structures, including defendant’s home, two barns, a chicken house, a milk house and a second one-family dwelling occupied by defendant’s daughter and son-in-law, David Harrington. At the time the events in issue took place, one of the barns was leased to defendant’s business, B & B Supermarkets, Inc. (B & B), and used to store some of the business’s equipment, including shopping carts and tables. The other barn on the property was used to store a high-loader tractor owned by B & B, as well as some of defendant’s personal equipment and supplies for Harrington’s plumbing business.

In 1981, defendant decided to have a free-standing floodlight installed on the property to illuminate his front yard and its two artificial ponds. He retained Harrington to do the necessary preliminary work, including painting the light standard that defendant had selected, digging a trench for electrical wiring from the house to the spot where the light standard was to be erected, and pouring a foundation for eventual use in the erection of the standard. Harrington, in turn, hired plaintiff to assist him.

On October 8, 1981, while Harrington and plaintiff Robert Cannon were attempting to thread electrical cable through the light standard’s hollow center, the standard, which was being supported by a bucket chained to defendant’s high-lift tractor, broke loose and fell on Cannon, allegedly causing him to sustain severe physical injury. Although he had personally participated in some of the preparatory work, defendant was not present, and was in fact in Florida, at the time that this accident occurred.

Plaintiffs commenced the present action against defendant alleging causes of action based on common-law negligence and Labor Law § 200, as well as Labor Law § 240 (1) and § 241. After serving an answer, defendant moved for summary judgment dismissing the Labor Law § 240 (1) and § 241 causes of action, asserting as a "defense” that, as an owner of a one- or two-family dwelling, he was exempt from the duties imposed by those statutes. Plaintiffs, in turn, cross-moved for partial summary judgment dismissing this "defense” on the ground that the exemption was unavailable to defendant either because of his commercial use of some of the structures on the property or because of his "direction” and/or "control” over the project. After hearing oral argument on the motion, the Supreme Court decided to hold an immediate trial to determine the fact questions relating to defendant’s entitlement to invoke the statutory dwelling-owner exemption (see, CPLR 3212 [c]).

After considering the evidence introduced at the evidentiary hearing, the court rejected plaintiffs’ arguments, held that the dwelling-owner exemption from Labor Law § 240 (1) and § 241 liability was applicable and dismissed the causes of action based on those statutes. The court found that "there is no evidence of any regular commercial activity which would remove this matter from the Labor Law exceptions,” since the purported commercial uses of the property were "merely incidental.” Further, there was "no substantial relationship between the light standard being erected and any commercial purpose at the premises.” With respect to plaintiffs’ contention that defendant had exercised sufficient "direction” or "control” to render him ineligible for the exemption, the court found that "while defendant had directed where the light was to be placed, no further direction or control was made which would * * * invoke §§ 240 and 241.” The court’s order was affirmed by the Appellate Division "for reasons stated at Special Term.” (143 AD2d 518.) Thereafter, Supreme Court dismissed the remaining causes of action on the basis of plaintiffs’ stipulation discontinuing them. We then granted plaintiffs leave to appeal from the final judgment dismissing their complaint, thereby bringing up for review the prior nonfinal Appellate Division order (see, CPLR 5602 [a] [1] [ii]).

Before the 1980 amendments establishing the dwelling-owner exemption were adopted, Labor Law § 240 (1) provided that "all contractors and owners and their agents” must provide "scaffolding, hoists, stays, ladders * * * and other devices” that are "constructed, placed and operated as to give proper protection” to workers employed in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Similarly, Labor Law § 241, which applies to the "construction], demolition] * * * or excavation]” of buildings, required "[a]ll contractors and owners and their agents” to comply with certain statutorily and administratively prescribed safety standards.

In Allen v Cloutier Constr. Corp. (44 NY2d 290, 297-300), this Court traced the "somewhat checkered history” of the latter statute and concluded that its first six subdivisions imposed nondelegable duties upon building owners. Consequently, owners could be held liable for injuries proximately caused by violations of these subdivisions without regard to whether they controlled or directed the work (id., at 300; see, Long v Forest-Fehlhaber, 55 NY2d 154, 159-160). In a subsequent decision, Haimes v New York Tel. Co. (46 NY2d 132, 136), the Court reached the same conclusion about Labor Law § 240 (1), holding that the duties imposed on owners by that statute were not "conditioned on [their] control and supervision” of the work. In so ruling, the Court relied on the apparent legislative policy determination that "over-all compliance with safety standards would [best] be achieved by placing primary and inescapable responsibility on owners and general contractors rather than on their subcontractors” because of the former’s greater interest in the project and often superior economic position (46 NY2d, at 137). While recognizing that "in many instances the circumstances may be just the opposite” and noting, as an example, that "[t]he owner of a one-family dwelling * * * may be in a less dominant position than the particular subcontractor he engages,” the Court stressed that the creation of exceptions to the basic statutory design was strictly "a matter for the exercise of the Legislature’s judgment” (id., at 137-138).

It was against this backdrop that the Legislature adopted the 1980 amendments to Labor Law § 240 (1) and § 241, which specifically excepted "owners of one and two-family dwellings who contract for but do not direct or control the work” from the duties imposed by those statutes (L 1980, ch 670, §§ 1-4). The amendments were recommended by the Law Revision Commission, which cited this Court’s decision in Haimes v New York Tel. Co. (supra) and stated its belief that the strict liability imposed by the statutes "should not apply to owners of one and two family homes who are not in a position to know about, or provide for the responsibilities of absolute liability” (Recommendation of NY Law Rev Commn, reprinted in 1980 McKinney’s Session Laws of NY, at 1658). The Commission report notes that such owners "cannot be expected to be in a position, as respects the work, which is dominant over that of the person doing the work” (id., at 1660). In short, the resulting amendments were thus intended to create an exception to the liability imposed by Labor Law § 240 (1) and § 241 so that the law would be fairer and would more nearly reflect the practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes (see, Mem of NY Law Rev Commn, Bill Jacket, L 1980, ch 670, reprinted in 1980 McKinney’s Session Laws of NY, at 1657 ["(i)t is unrealistic to expect the owner of a one or two family dwelling to realize, understand and insure against the responsibility sections 240 and 241 now place upon him”]).

The Legislature’s concern for fairness and practicality is a sound starting place for our own analysis of how the amendments should be applied. Plaintiffs would have us withhold the dwelling-owner exemption from this defendant because part of the property on which the injury occurred was used for commercial, as well as residential, purposes. However, that approach would unduly restrict the availability of the exemption and not be in accord with the Legislature’s apparent intent.

Having considered all aspects of the case and the governing principles, we conclude that the existence of both residential and commercial uses on a property does not automatically disqualify a dwelling owner from invoking the exemption. Instead, whether the exemption is available to an owner in a particular case turns on the site and purpose of the work. Such a test comports with the underlying notions of reasonableness and fairness that motivated the Legislature’s adoption of the dwelling-owner exemption. A homeowner who hires someone to paint his own living-room ceiling should be afforded the benefit of the statutory exemption from liability even if he also maintains a business on the property. In terms of the legislative purpose, such a homeowner is no more or less likely to "know about, or provide for the responsibilities of absolute liability” for home-improvement-related injuries than is a similarly situated homeowner who happens to conduct a business on a separate parcel of land (Recommendation of NY Law Rev Commn, op. cit., at 1658).

In this case, placing the analytical focus on the site and purpose of the work leads to the inevitable conclusion that the dwelling-owner exemption was properly held applicable. Although the worksite was not located in or on the dwelling structure itself but rather was an outdoor area to which all of the structures on the property had access, the uncontradicted evidence established that the project had been undertaken solely in connection with defendant’s residential use of the property. The only direct evidence of defendant’s purpose in installing the outdoor lighting fixture was his own deposition testimony that he wanted to illuminate his front yard and the two artificially created ponds on the property for aesthetic reasons. Further, the conclusion that aesthetics were defendant’s only real concern is supported by the testimony that the site and direction of the new light standard were specifically selected to highlight the property’s landscaping and to enhance its dramatic effect. Finally, a project to beautify the appearance of the front yard of defendant’s home could not reasonably be said to have any practical value in connection with the arguably commercial uses of the other structures on the property — i.e., storage of business equipment.

Thus, the conclusion is inescapable that the project was purely and simply a home improvement measure, notwithstanding that the work may have fortuitously affected another area of the property that was used for commercial activities. Under such circumstances, the remedial purposes and protective goals underlying the 1980 amendments to Labor Law § 240 (1) and § 241 are best served by extending the dwelling-owner exemption to defendant’s situation.

As to plaintiffs’ alternative contention, there was plainly support in the hearing record for the trial court’s finding that defendant’s participation in some of the preliminary stages of the project did not rise to the level of "direction] or control [of] the work” within the meaning of the statutes. Since that finding has now been affirmed by the Appellate Division, the question is beyond our Court’s power to review (see, e.g., Smirlock Realty Corp. v Title Guar. Co., 63 NY2d 955). Defendant may thus fairly be characterized as an "owner[ ] of [a] one [or] two-family dwelling[ ] who contracted] for but d[id] not direct or control the work,” and the courts below properly dismissed plaintiffs’ Labor Law § 240 (1) and § 241 causes of action against him.

Accordingly, the judgment of the Supreme Court, and the order of the Appellate Division brought up for review, should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      . The parties agreed by stipulation to have the "hearing” held out of court’s presence. Under the agreed-upon procedure, the live testimony of both plaintiffs and of defendant Putnam was taken in the form of "depositions,” and the transcripts of the depositions were submitted to the court as "evidence,” along with the transcripts of the parties’ examinations before trial, several photographs and a survey map of defendant’s property.

      . We dismissed plaintiffs’ motion for leave to appeal from this Appellate Division order on the ground that the order did not finally determine the action within the meaning of the Constitution (Cannon v Putnam, 73 NY2d 994).


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Juan Ortiz, Appellant.
    Argued October 11, 1990;
    decided November 20, 1990

      POINTS OF COUNSEL

      Lynn W. L. Fahey and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Jonathan R. Walsh and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Kaye, J.

During defendant’s trial on drug possession charges, a former client privately confessed to trial counsel that the drugs defendant was charged with having possessed were not defendant’s, but that he was the "owner and possessor of those drugs” and defendant "really had nothing to do with that.” In an effort to accommodate both individuals, trial counsel then put the former client on the witness stand as part of the defense case, and the witness exculpated defendant but also perjuriously exculpated himself. In these circumstances, we agree with defendant that counsel did not serve defendant’s interests with the single-minded devotion constitutionally required for effective assistance of counsel, and that counsel’s divided loyalty affected the conduct of the defense. We therefore reverse defendant’s conviction and order a new trial.

I.

Defendant was arrested on August 2, 1984, and charged with two counts of criminal possession of a controlled substance in the third degree. At trial, the main prosecution witnesses were the two arresting officers, who testified that while on patrol in The Bronx in an unmarked car they saw defendant, standing on the front stoop of a building, take a glassine envelope out of a grey pouch and hand it to another man. When the police approached, the man and his companion walked away. The officers looked in the grey pouch, saw drugs, and arrested defendant.

During defendant’s trial, a question arose about the configuration of the building stoop, and defense counsel visited the premises to take photographs. Later that same day, John Gonzalez, a former client, came to counsel’s office. In the presence of two employees, Gonzalez told counsel that when he saw him at the building taking photographs, he realized that he was a witness. Stating that "I can trust you” because "you’re my lawyer,” Gonzalez then admitted to the attorney that he, and not defendant, was the owner and possessor of the drugs. Gonzalez further described how he had cautioned defendant to leave when he saw what he recognized as a police car approaching, but that defendant failed to do so and was arrested. Gonzalez informed counsel that, if called to testify and questioned about his confession, he would invoke his privilege against self-incrimination.

Trial counsel did not reveal Gonzalez’s statement to the court, but instead called Gonzalez as a defense witness. Gonzalez testified that, as a passerby at the arrest scene, he saw defendant descending the steps, that he saw several other men closer to the bag that contained the drugs, and that the other men ran or walked away when the arresting officers pulled up in an unmarked car. This testimony corroborated the testimony of another defense witness that defendant had gone to that building to repay a loan and was arrested as he was leaving; defendant himself (through an interpreter) testified to this same effect. Gonzalez further testified — falsely in light of

his confession to counsel — that he was near the arrest scene because he had been playing ball down the street and was on his way to buy soda. After lengthy deliberations, the jury found defendant guilty of two counts of possession.

At sentencing, trial counsel for the first time revealed that another person had confessed to having owned and possessed the drugs, and suggested that as one of several reasons justifying a short sentence. However, it did not become evident until a postconviction hearing two years later that the person counsel had referred to was Gonzalez.

At the CPL 440.10 hearing, trial counsel testified that he regarded Gonzalez (though refusing to name him, on grounds of attorney-client privilege) as a client at the time of defendant’s trial, but had not perceived any conflict of interest. Counsel testified that he did not examine Gonzalez about his confession at the trial or take the stand himself to recount the confession because he did not think the jury would have believed such testimony, because he would have violated his obligations to Gonzalez, and because Gonzalez had told him that he would not recount his confession in court. Counsel further testified that he had informed defendant that another client had confessed to owning the drugs (although not that Gonzalez was the person), that he had advised defendant it was not likely that the jury would believe that such a confession had been made, and that the "strategy” of calling Gonzalez as a defense witness had been discussed with defendant.

Both the trial court and the Appellate Division rejected defendant’s claims that he was denied effective assistance of counsel, holding that any conflict was not shown to have prejudiced defendant. As expressed by the Appellate Division: "The witness’s confession could not have been brought before the jury because the witness indicated to counsel that he would assert his Fifth Amendment right and counsel would have been precluded from divulging the statement because of the attorney/client privilege. Thus, we reject defendant’s claim that he was precluded from obtaining new counsel, the only prejudice alleged as a result of the conflict, when new counsel would have, likewise, been unable to put the witness’s confession before the jury.” (156 AD2d 222.)

We now reverse.

II.

The State and Federal constitutional right to counsel, so fundamental to our form of justice, is the right to effective assistance of counsel, meaning the reasonably competent services of an attorney devoted to the client’s best interests. The right to effective assistance of counsel encompasses the right to conflict-free counsel (People v McDonald, 68 NY2d 1; People v Salcedo, 68 NY2d 130, 135); in another context we have noted our assumption that counsel’s devotion to a client’s interests will be " 'single-minded’ ” (People v Darby, 75 NY2d 449, 454).

While defendant argues that trial counsel committed several breaches of the Code of Professional Responsibility, particularly in eliciting false testimony, our concern on this appeal is not with any professional impropriety but with whether defendant received the effective assistance of counsel guaranteed him by the State and Federal Constitutions. We conclude that he did not.

A lawyer simultaneously representing two clients whose interests actually conflict cannot give either client undivided loyalty. Thus, the right to effective assistance of counsel has been violated when a lawyer represented both a defendant and the chief prosecution witness (People v Wandell, 75 NY2d 951, 953), or a defendant accused of crime and the victim of that crime (People v McDonald, 68 NY2d 1, 9, supra). The same has been true when law partners represented two codefendants, one of whom pleaded guilty and agreed to testify against the other (People v Mattison, 67 NY2d 462, 470).

The possibility that a lawyer may give one client less than undivided loyalty because of obligations to another client can also exist when the conflicting representations are not simultaneous. Even though a representation has ended, a lawyer has continuing professional obligations to a former client, including the duty to maintain that client’s confidences and secrets (People v Alicea, 61 NY2d 23, 29), which may potentially create a conflict between the former client and a present client. Such a conflict is called potential not because the clients’ conceivable interests are less than completely adverse, but because — the former representation having ended — the conflict may never actually arise during the existing attorney-client relationship.

In that a conflict may never in fact arise, a defendant urging that a conviction should be overturned on account of counsel’s relationship with a former client must do more than show a substantial possibility that defendant’s interests potentially conflicted with those of the lawyer’s former client. In order to prevail on such a claim of ineffective assistance of counsel, defendant must show that "the conduct of his defense was in fact affected by the operation of the conflict of interest,” or that the conflict "operated on” the representation (People v Alicea, 61 NY2d, at 31, supra). We have, alternatively, phrased this requirement as one that the potential conflict have borne a substantial relation to the conduct of the defense (People v Recupero, 73 NY2d 877, 879). Notably, the requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense — three formulations of the same principle — is not a requirement that defendant show specific prejudice (People v Alicea, 61 NY2d, at 30, n, supra).

Here, there was a potential conflict between defendant’s interests and those of Gonzalez. Defense counsel clearly felt a continuing duty to preserve Gonzalez’s confidences and secrets, and Gonzalez as evidently expected that he would do so. It is equally clear that Gonzalez’s interest was adverse to defendant’s, since Gonzalez admitted having committed the offense for which defendant was being prosecuted.

The Appellate Division held that defendant failed to show that this potential conflict affected the conduct of his defense, reasoning that Gonzalez’s confession could not have been brought before the jury because Gonzalez would have asserted his Fifth Amendment privilege if questioned about it, and trial counsel was precluded from testifying to their conversation by the attorney-client privilege. The court rejected defendant’s claim because he could not establish prejudice, in that new counsel would also have been unable to put Gonzalez’s confession before the jury.

The Appellate Division erred in focusing its inquiry on the question whether a different attorney could have put Gonzalez’s confession before the jury. Instead, the focus should be on whether the potential conflict affected the conduct of the defense. In that the court failed to apply the proper legal standard, we are not bound by the finding that counsel’s conflict did not in fact operate on the conduct of the defense (see, People v Alicea, 61 NY2d 23, 31, supra).

Here we conclude that the potential conflict affected the conduct of the defense. Trial counsel’s decision to call Gonzalez as a defense witness was a product of the conflict. On one hand, his duty to defendant required him to make what use he could of Gonzalez’s testimony to exculpate defendant, but on the other hand, he was obligated to maintain Gonzalez’s confidences and secrets. He therefore put Gonzalez on the stand to exculpate defendant but in the process elicited false testimony. An attorney not laboring under the conflict would not have made that choice. If unaware of Gonzalez’s involvement, such an attorney obviously would not have called Gonzalez to the stand. If aware of Gonzalez’s involvement, the attorney could have made efforts to put the facts before the jury. Indeed, defense counsel himself testified that an attorney who represented only defendant could have subpoenaed Gonzalez and the persons to whom the confession was made in an effort to inform the jury of that confession. Whether or not those efforts would have succeeded, it is clear that the conduct of the defense would have been different in the absence of trial counsel’s continuing professional responsibilities to Gonzalez.

We reject the People’s suggestion that defendant actually benefited by being represented by the same attorney who represented Gonzalez, since a different attorney in all likelihood would not have obtained Gonzalez’s testimony corroborating defendant’s own version of events. Gonzalez’s testimony was partly false, and a premise of our jury system is that jurors can detect false testimony. We are unwilling to conclude that defendant was benefited by having perjured testimony presented on his behalf.

In sum, defendant has amply demonstrated that the potential conflict between his interests and those of counsel’s former client affected the conduct of his defense. Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . In his testimony at the CPL 440.10 hearing, counsel was not entirely certain of his relationship with Gonzalez at the time of trial, but did recall that he had no pending or subsequent matters for Gonzalez. The trial court and Appellate Division treated the relationship as one with a former client, and we proceed on that basis, noting that in this case the result is the same whether defendant was trial counsel’s present or former client.

      . The trial court, as a basis for its decision, referred to the "advised consent of the defendant” in calling Gonzalez. Even if the conflict could have been waived, there is no showing here that full disclosure was made to defendant or informed consent given.


author: Hancock, Jr., J.

text:
    Robert D’Arata et al., Appellants, v New York Central Mutual Fire Insurance Company, Respondent.
    Argued October 10, 1990;
    decided November 20, 1990

      POINTS OF COUNSEL

      Robert H. Gurbacki for appellants.

      Anthony M. Nosek and Donna M. Lanham for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

In this action under Insurance Law § 3420 (b) (1), plaintiff, a shooting victim, is seeking to recover from the insurer of the assailant the amount of a default judgment obtained against the assailant who had been convicted of first degree assault for the incident resulting in plaintiff’s injuries. Plaintiff, the complaining witness, testified for the prosecution in the criminal case. The insurance policy expressly excludes recovery for bodily injury "expected or intended by the Insured”. The issue in plaintiff’s appeal is whether the insurer may use the insured’s criminal judgment of conviction as a collateral bar to plaintiff’s attempt in this case to relitigate the issue of his assailant’s intent to injure. For the reasons discussed below, we agree with the Appellate Division that plaintiff should be collaterally estopped and that this action, therefore, was properly dismissed.

I

On March 13, 1984, plaintiff Robert D’Arata, a shopkeeper, was shot by Wayne Luke. Thereafter, Luke was charged in a multicount indictment involving several store robbery-related offenses. Of relevance here is count 16 which charged Luke with the first degree assault in that Luke "with intent to cause serious physical injury to another person, caused such injury to Robert D’Arata, by shooting him with a deadly weapon, to wit: a handgun.” Luke was convicted after a jury trial during which plaintiff testified for the People. The conviction for first degree assault was affirmed on appeal (People v Luke, 155 AD2d 890, lv denied 75 NY2d 870).

In March 1985 plaintiff brought an action against Luke, Luke’s parents and Luke’s sister. He alleged that his injuries resulted from "the negligent, careless, reckless, willful, and unlawful conduct on the part of the Defendant, Wayne Luke.” Plaintiffs claims against Luke’s relatives were grounded on their negligent entrustment of a handgun to Luke who, defendants knew or should have known, had dangerous propensities.

During the relevant time period, defendant New York Central Mutual Fire Insurance Company insured Luke’s parents under a homeowner’s policy which, because Luke resided with his parents, also covered Luke as an insured. Defendant, however, sent a letter to Luke’s parents and to Luke’s criminal attorney informing Luke that it refused to defend or indemnify Luke on the ground that the policy expressly excluded liability coverage for bodily injury "which is expected or intended by the Insured”.

On May 13, 1986, after Luke’s failure to answer or otherwise appear, plaintiff was granted a default judgment against Luke, for $325,000. Plaintiff brought this action pursuant to Insurance Law § 3420 (b) (1) to compel defendant to pay the judgment on behalf of Luke up to the limit of the policy. Defendant raised as an affirmative defense that plaintiff should be collaterally estopped from relitigating the issue of the insured’s intent to inflict bodily injury. Supreme Court, Erie County, denied defendant’s motion to dismiss based on this collateral estoppel defense. The Appellate Division reversed, granted defendant’s motion, and dismissed the complaint. We granted leave and now affirm.

II

Collateral estoppel, an equitable doctrine, is based upon the general notion that a party, or one in privity with a party, should not be permitted to relitigate an issue decided against it (see, Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485; see also, Kaufman v Lilly & Co., 65 NY2d 449, 455). As this doctrine has evolved, only two requirements must be satisfied. First, the party seeking the benefit of collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action (see, Kaufman v Lilly & Co., supra, at 455). Second, the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination. The burden is on the party attempting to defeat the application of collateral estoppel to establish the absence of a full and fair opportunity to litigate (see, id., at 455-456). Collateral estoppel, we have held, is grounded on concepts of fairness and should not be rigidly or mechanically applied (see, Matter of Halyalkar v Board of Regents, 72 NY2d 261, 268-269). We note that this Court has recognized that, in appropriate situations, an issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action (see, Vavolizza v Krieger, 33 NY2d 351; S. T. Grand, Inc. v City of New York, 32 NY2d 300; Brennan v Mead, 81 AD2d 821, affd 54 NY2d 811).

In determining whether collateral estoppel should be applied so as to bar plaintiff from litigating the issue of Luke’s intent in this action against Luke’s insurer, the initial question is whether plaintiff, a nonparty to the prior criminal proceeding, should, nevertheless, be bound by the adverse determination on intent in that proceeding. In other words, can plaintiff be said to be in legal privity with Luke? Privity, it has been observed, is an amorphous concept not easy of application (see, Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485, 486, supra). Generally, a nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation (see generally, Green v Santa Fe Indus., 70 NY2d 244j 253; Restatement [Second] of Judgments, Introductory Note, ch 4, at 344).

Here, we have no difficulty in concluding that plaintiff, in suing defendant on the judgment he has recovered against Luke, is in privity with Luke for the purpose of the application of collateral estoppel (see, Restatement [Second] of Judgments, Introductory Note, ch 4, at 344). Under Insurance Law § 3420 (b) (1) plaintiff is permitted to maintain a direct action against the insurer on the policy. In doing so, plaintiff "stands in the shoes” of the insured and can have no greater rights than the insured (see, Spadaro v Newark Ins. Co., 21 AD2d 226, 230-231, affd without opn 15 NY2d 1000; Sperling v Great Am. Indem. Co., 7 NY2d 442; Wenig v Glens Falls Indem. Co., 294 NY 195). Plaintiff, by proceeding directly against defendant, does so as subrogee of the insured’s rights and is subject to whatever rules of estoppel would apply to the insured (see, Restatement [Second] of Judgments § 57, comment g, at 84-85; id., § 85 [2] [b], at 294-295, and comment f, at 299-300; accord, State Farm Fire & Cas. Co. v Reuter, 299 Ore 155, 700 P2d 236, 239-244 [1985]; Aetna Life & Cas. Ins. Co. v Johnson, 207 Mont 409, 673 P2d 1277, 1281 [1984]). Thus, the inevitable consequence of plaintiff’s election to proceed against defendant under Insurance Law § 3420 (b) (1) is that he is in legal privity with the claimed insured for the purpose of collateral estoppel analysis.

We turn to the question of whether the two basic requirements for invoking collateral estoppel have been satisfied: (1) that the identical issue was necessarily decided in the prior proceeding and is decisive of the present action, and (2) that there was a full and fair opportunity to contest that issue in the prior proceeding (see, Matter of Halyalkar v Board of Regents, supra, at 266; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71, 73). Here, there can be little question that the "full and fair opportunity” requirement is satisfied. Indeed, plaintiff virtually concedes the point. Plaintiff, we have held, was in privity with Luke and the critical question is whether Luke had a full and fair opportunity to litigate all of the issues in the criminal proceeding including the question of his intention to injure plaintiff. Luke, of course, not only had a full and fair opportunity to defend himself against the assault charge but actually did so in a jury trial which resulted in a verdict in which all of the elements of the crime, including intent, were necessarily proven against him.

The closer question is whether defendant has proven the requisite identity of the issue between this case and the prior criminal proceeding. First, of course — reflecting the doctrine’s underlying purpose of preventing repetitious litigation of disputes which are essentially the same — there must be an identity between the particular matter in the second action and that presented in the first (see, Restatement [Second] of Judgments § 27, comment c). And it must be shown that this identical issue was necessarily decided in the first proceeding and is conclusive in the subsequent action (id., §27). Here, these two requirements are satisfied. A central issue in the criminal proceeding was whether Luke caused injury to plaintiff with "intent to cause serious physical injury to another person” (Penal Law § 120.10 [1]). To find Luke guilty of assault, first degree, the jury would necessarily have to have been satisfied that Luke acted intentionally — i.e., that his conscious objective was to cause serious physical injury to plaintiff (see, Penal Law § 15.05 [1]). Thus, the jury’s finding on intention was essential to the determination in the prior proceeding. The question in the subsequent action on Luke’s parents’ insurance policy is whether the injury for which plaintiff seeks compensation was "expected or intended by” Luke. The intent to cause serious physical injury found by the jury in the criminal action would certainly be sufficient to establish the requisite element of intent in the action on the insurance policy so as to make the policy exclusion effective and thereby determine plaintiff’s action in defendant’s favor.

But there is a further requirement for establishing issue identity — i.e., that the issue have been "actually litigated” in the first proceeding (see, Kaufman v Lilly & Co., 65 NY2d 449, 456-457, supra [citing Restatement (Second) of Judgments §27]). Generally, for "a question to have been actually litigated” so as to satisfy the identity requirement, it "must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding.” (Matter of Halyalkar v Board of Regents, 72 NY2d 261, 268, supra; see, Restatement [Second] of Judgments § 27, comments d, e.)

Here, of course, in the criminal proceeding the People bore the burden of proving Luke’s intent to injure plaintiff (see, Penal Law § 120.10 [1]). The issue of intent was necessarily submitted to the jury in the court’s charge as a factual question on an essential element of the crime (see, S. T. Grand, Inc. v City of New York, 32 NY2d 300, 304, supra). The verdict of guilty represents a conclusive finding that Luke’s intention to injure plaintiff was established beyond a reasonable doubt and, under general rules, would be binding in the later action.

Plaintiff argues, nevertheless, that the issue of Luke’s intent was never contested and that, therefore, he should not be bound by the jury finding on that question. He points out that Luke’s defenses at the trial on the assault charge were mistaken identification and alibi and that Luke "simply defaulted as to that portion of the indictment that alleged that the act was intentional.” (Appellants’ brief, at 11.) In rejecting this argument, we stress that Luke was convicted of a serious felony charge in a completed jury trial. The jury perforce had to have been satisfied that the prosecution had met its burden of proving Luke’s intent beyond a reasonable doubt. Moreover, the guilty verdict can only mean that the jury rejected Luke’s defenses of mistaken identity and alibi and accepted the evidence, including plaintiff’s testimony, to the effect that the shooting was intentional. Thus, cases where courts have declined to give collateral estoppel effect to a prior finding based on a guilty plea (see, e.g., Aid Ins. Co. v Chrest, 336 NW2d 437 [Iowa 1983]; Garden State Fire & Cas. Co. v Keefe, 172 NJ Super 53, 410 A2d 718 [1980]; cf, Vavolizza v Krieger, 33 NY2d 351, 356, supra), or on a compromise (see, e.g., Matter of Halyalkar v Board of Regents, 72 NY2d 261, supra), or where the determination sought to be given preclusive effect was never put in issue in the prior action (see, e.g., Kaufman v Lilly & Co., 65 NY2d 449, 456, supra) are not persuasive authority (see generally, Thau, Collateral Estoppel and the Reliability of Criminal Determinations: Theoretical, Practical, and Strategic Implications for Criminal Civil Litigation, 70 Geo LJ 1079, 1094-1095, 1101-1112 [1982]).

Finally, plaintiff — noting that the collateral estoppel doctrine reflects general concepts of fairness — argues that he should have his day in court to establish that Luke’s actions in shooting him were unintentional. Plaintiff’s appeal to fairness necessarily presupposes a contention that the jury’s finding in the criminal trial was wrong. We find plaintiff’s argument to be unconvincing. In the criminal trial, Luke’s conviction for intentional assault — a class C felony for which the maximum sentence is 15 years — was based, at least in part, on plaintiff’s own testimony (compare, Gilberg v Barbieri, 53 NY2d 285 [involving conviction of a petty offense in City Court]). The judgment of conviction was affirmed unanimously on appeal (see, People v Luke, 155 AD2d 890, supra) and his request for leave to appeal to this Court was denied (75 NY2d 870, supra). Luke now stands convicted of first degree assault at the conclusion of a criminal justice process in which he has been accorded all of his legal and constitutional rights. It does not seem unfair to apply collateral estoppel against plaintiff in these circumstances. Indeed, it would be anomalous to permit plaintiff now to relitigate an issue which the jury has already determined under a higher standard of proof in the criminal case in which plaintiff, himself, gave evidence supporting the jury’s finding.

Thus, "based on general notions of fairness involving a practical inquiry into the realities of the litigation” (see, Matter of Halyalkar v Board of Regents, supra, at 268) we conclude that preclusive effect should be given to the jury’s finding that Luke shot plaintiff with intent to cause serious physical injury (Penal Law § 120.10 [1]). This result, we note, furthers the policies underlying the doctrine of collateral estoppel of avoiding relitigation on a decided issue and the possibility of an incongruous result (see, Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485, supra; see generally, Blonder-Tongue v University Found., 402 US 313, 349; Thau, op. cit., 70 Geo U, at 1099-1104) and is consistent with analogous cases in other jurisdictions (see, Safeco Ins. Co. v Yon, 796 P2d 1040 [Idaho Ct of App 1990]; New Jersey Mfrs. Ins. Co. v Brower, 161 NJ Super 293, 391 A2d 923; Aetna Life & Cas. Ins. Co. v Johnson, 207 Mont 409, 673 P2d 1277, supra; cf., Kichefski v American Family Mut. Ins. Co., 132 Wis 2d 74, 390 NW2d 76 [1986] [victim’s testimony in civil complaint consistent with testimony at criminal trial]; contra, Clemmer v Hartford Ins. Co., 22 Cal 3d 865, 587 P2d 1098, 1102-1104 [1978]).

The order of the Appellate Division, dismissing the complaint, should, therefore, be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed, with costs.

      . Plaintiff Robert D’Arata is the party who was shot. The claims of plaintiff Karen D’Arata, Robert’s wife, are derivative. Hereinafter, where necessary, plaintiffs will collectively be referred to as plaintiff.

      . Penal Law § 120.10 (1) states that a person is guilty of assault in the first degree when "[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

      . Defendant agreed to defend and indemnify Luke’s parents. These claims are not at issue here.

      . $300,000 on Robert D’Arata’s main claim and $25,000 on Susan D’Arata’s derivative claim.

      . Insurance Law § 3420 provides: "(b) * * * an action may be maintained by the following persons against the insurer upon any policy or contract of liability insurance * * * to recover the amount of a judgment against the insured * * *: (1) any person who * * * has obtained a judgment against the insured * * * for damages for injury sustained or loss or damage occasioned during the life of the policy or contract”.

      . Plaintiff’s reliance on Utica Mut. Ins. Co. v Cherry (45 AD2d 350, affd 38 NY2d 735) for the notion that he is not in privity with Luke is misplaced. In affirming the Appellate Division, this Court held only that the insurer owed a duty to defend against a civil complaint which contained a negligence claim, reasoning that the duty to defend is "broader than [the] duty to pay” (see, id., at 737). Notably, this Court did not adopt the Appellate Division’s reasoning that collateral estoppel could not be invoked in any event because neither the "administratrix [n]or the estate * * * was represented in the prior criminal action.” (45 AD2d, at 354.) As the Appellate Division below properly noted, even if it can be said that defendant breached its duty to its insured to defend in plaintiff’s action which was based, in part, on negligence, no duty to indemnify exists where the loss is not covered by the policy (see, Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419, 423).


author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v John LaClere, Also Known as Johnny LaClere, Also Known as Juan Ortega, Appellant.
    Argued October 18,1990;
    decided November 20, 1990

      POINTS OF COUNSEL

      Paul Lewis and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Lisa M. Loscalzo and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Defendant was identified at an investigatory lineup conducted in the absence of his counsel, and he was eventually convicted of attempted murder after a jury trial at which lineup identification evidence was admitted. He had been arrested following a court appearance with counsel on an unrelated matter. The attorney promptly asked the presiding Judge to advise the arresting officers that he also represented defendant on the matter for which he was then being arrested, and that the police should not take any statements from his client unless counsel was present. The Judge complied. The police then removed defendant to a precinct where the lineup at issue was conducted later that day. Counsel was not notified about the lineup.

The initial court in this case denied the motion to suppress, concluding that the police were not obliged to inform defense counsel of the investigatory lineup (citing People v Hawkins, 55 NY2d 474, cert denied 459 US 846), and therefore that defendant’s right to counsel in that respect was not violated. Adverting to our decisions in People v Coates (74 NY2d 244), People v Hawkins (supra), and People v Blake (35 NY2d 331), the Appellate Division afiirmed the conviction. The dissenting Justice in that court, who granted leave to appeal to our Court, urged that the police should not have proceeded with the lineup without notifying defense counsel inasmuch as the arresting officers were informed in court by the Judge that defendant was represented on the instant charge.

We now reverse and suppress the lineup evidence because counsel’s announced entry into the case and explicit solicitation of formal judicial admonitory relief attached the defendant’s right to counsel. In conducting the lineup in these circumstances, without some notice or other legally recognized excusal of counsel’s presence, the police took the risk that the adduced evidence would not be allowed.

In reversing, we emphasize that we do not alter the key lines of authority defining the right to counsel at this important phase of criminal investigation (see, e.g., Matter of Jamal C., 75 NY2d 893, 895; People v Coates, 74 NY2d 244, 249, supra; People v Hernandez, 70 NY2d 833, 835; People v Hawkins, 55 NY2d 474, 485, supra; People v Coleman, 43 NY2d 222). The right to counsel for lineup purposes generally does not attach prior to the commencement of formal proceedings, though other significant judicial activity may implicate its protective cloak (see, People v Coleman, supra, at 225; People v Coates, supra; and People v Hawkins, supra). Our holdings are clear and consistent that suspected individuals are not entitled to counsel at preaccusatory, investigatory lineups (see, e.g., Matter of Jamal C., supra, at 895; People v Coates, supra, at 249; People v Hawkins, supra, at 487; People v Blake, 35 NY2d 331, 339-340, supra). Once activated, however, the right incorporates a requirement that defense counsel be notified of an impending investigatory lineup, if possible, and that counsel be afforded a reasonable opportunity to attend (see, People v Coates, supra). The right is not absolute or abstract. It may be overridden if exigent circumstances necessitate that the identification procedure be conducted without counsel’s presence because, unlike the role of counsel during custodial interrogations (see, People v Hobson, 39 NY2d 479, 481), "counsel plays a much more limited role at identification confrontations” (People v Hawkins, 55 NY2d 74, 485, 487, supra; see also, People v Coleman, 43 NY2d 222, 226, supra).

At specific issue, then, is whether People v Coates (74 NY2d 244, supra) established a sine qua non requirement that the defendant verbalize the desire for the attorney’s presence at a lineup. Recast as a question framed around the salient circumstances of this case, must such a manifestation occur even when counsel has entered the case, has sought judicial protective relief, and has secured from the court an alert to the arresting officers that the defendant is represented on the charge for which the imminent lineup is to be conducted ex parte? Our answer is in the negative because such an evidentiary acquisition should not be countenanced in these circumstances.

The People’s argument that under Coates the defendant had to personally utter a request for his counsel’s presence at the lineup is too restrictive and mechanistic and conflicts with governing underlying principles. The formal point of counsel’s entry into the case, the representational activity, and the solicitation of judicial intervention are equal to, if not greater than, the defendant’s personal request in Coates, which sprung and attached the entitlement to counsel at the investigatory lineup.

People v Coates (74 NY2d 244, supra) did not decide that notification and opportunity to attend are required only when a defendant specifically asks for counsel from another unrelated matter to appear also at a lineup related to new charges. Even such a request, standing alone, is insufficient to trigger an official obligation to notify defense counsel of the opportunity to be present at a lineup when no counsel has been otherwise engaged or appointed (see, People v Johnson and People v Laffosse, 55 NY2d 474, 484-485). Rather, we rejected the evidence from the Coates lineup because, in addition to that defendant’s request for counsel, the police were aware of the critical feature: defendant’s representation by counsel, though on an unrelated charge. The request by defendant in Coates for his counsel was viewed as reflecting a strong likelihood that the attorney on the unrelated charge would enter on the new charge for which the lineup was to be conducted (see also, People v Thomas, 76 NY2d 902).

The instant case is a fortiori from Coates because here the police were informed by the court, at defense counsel’s express request, that the attorney represented defendant on the new charge. As we stated in People v Blake: "When an accused, at any stage, before or after arraignment, to the knowledge of the law enforcement agencies, already has counsel, his right or access to counsel may not be denied” (35 NY2d 331, 338, supra). The right to counsel’s presence at an investigatory lineup, such as it is, certainly was compromised and denied. Prompt notification to counsel by someone in the police chain of command, with actual or imputed knowledge, would have been a feasible and reasonable accommodation and satisfaction of defendant’s right in this regard. The announcement to the Judge that the lawyer represented the defendant in this case and that he wanted the police to be informed of it by the court itself suffices for purposes of deciding this case under the governing principles and precedents. Defense counsel surely should not be held to an additional recitation of a precious litany of utterances.

We conclude by noting that we are applying the fundamental principle that "if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings” (see, People v Hawkins, 55 NY2d 474, 487, supra). Here, the police should surely not be excused from notifying counsel because delay in conducting the investigatory lineup would not have significantly inconvenienced the witnesses or undermined the substantial advantages of a prompt identification confrontation (see, id.). The lineup at issue was conducted several hours after the arrest on the same day the authorities were notified by a Judge that defendant was represented on the charge for which the lineup was conducted — some five months after the crime was committed.

Accordingly, the Appellate Division order should be reversed, defendant’s motion to suppress the lineup identification granted, and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.


text:
    In the Matter of County of Fulton, Respondent, v State of New York et al., Appellants.
    Argued October 16,1990;
    decided November 27, 1990

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Daniel Smirlock, O. Peter Sherwood and Peter H. Schiff of counsel), for State of New York and others, appellants.

      John D. Chestara for Hudson River-Black River Regulating District, appellant.

      James W. Roemer, Jr., and Victor M. DeBonis for respondent.
   OPINION OF THE COURT

Titone, J.

At issue in this appeal is whether the State of New York, as a property owner, may withhold payment of its local property taxes while it is challenging the amount of the assessment. Having found no indication of a legislative intent to exempt the State from the rule applicable to other taxpayers, we hold that, notwithstanding the pendency of a dispute over the amount, the State must pay its local property taxes when they are due. Further, we conclude that mandamus lies to enforce that obligation.

The real property at issue in this appeal encompasses some 380 parcels located within the Town of Northampton in Fulton County. These parcels were acquired in the name of the State for use by the Hudson River-Black River Regulating District (the District), a public corporation charged with constructing, maintaining and operating reservoirs (see, ECL 15-2103, 15-2111 [8]). Such real property is taxable "in the same manner as state lands subject to taxation pursuant to title 2 of article 5 of the Real Property Tax Law” (ECL 15-2115). The taxes are to be paid by the District out of its "general fund,” with the disbursement countersigned by the State Comptroller (ECL 15-2129 [9]).

In 1986 and 1987, the District’s local real property tax assessment increased more than twofold. Following a review by the State Board of Equalization and Assessment (SBEA) (see, RPTL 542), the District and the SBEA brought timely tax certiorari proceedings pursuant to article 7 of the Real Property Tax Law, arguing that the assessments were excessive and disproportionate. Additionally, the District declined to pay the disputed property taxes, claiming that it was entitled to withhold payment while the certiorari proceedings were pending.

Petitioner Fulton County commenced the present article 78 proceeding for relief in the nature of a writ of mandamus. Petitioner alleged that the District had a legal duty to pay its taxes and that it was aggrieved by the District’s continuing breach of that duty because, by operation of law, it was obliged to advance the uncollected funds to the town and school districts that had imposed the tax (see, NY Const, art XVI, § 2). Respondents opposed petitioner’s request for relief, arguing that petitioner had no clear statutory right to payment of the disputed taxes and that, accordingly, mandamus did not lie. Specifically, respondents took the position that, in light of the important policy considerations and the statutes insulating the State from some of the conventional remedies for nonpayment of local taxes, the State and its land-holding agencies should also be permitted to withhold payment of any disputed assessment until the dispute is finally resolved.

The Supreme Court rejected respondents’ arguments. Finding no authority for exempting the State and, by logical extension, the District from the general rule that a taxpayer who disputes an assessment must nonetheless pay the tax, the court issued an order requiring the District to pay the challenged taxes and the Comptroller to countersign the disbursements, subject to any other "valid objections” not related to the amount of the assessments. The Appellate Division affirmed, and respondents have taken a further appeal by leave of this Court.

Mandamus is often characterized as an "extraordinary remedy” that is available only in limited circumstances (see, e.g., Klostermann v Cuomo, 61 NY2d 525, 537). Traditionally, the writ of mandamus is the relief invoked when a party seeks to compel performance by a governmental agency of a duty enjoined by law (see, e.g., Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 96). A party seeking relief in the nature of mandamus must show a "clear legal right”, to that relief (see, e.g., Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). However, the availability of mandamus to compel "depends not on the applicant’s substantive entitlement to prevail, but on the nature of the duty sought to be commanded — i.e., mandatory, nondiscretionary action.” (Matter of Hamptons Hosp. & Med. Center v Moore, supra, at 97.)

Here, the duty of respondent District is established by ECL 15-2115, which provides that land owned or acquired by the State for river regulating districts "shall be assessed and taxed in the same manner as state lands subject to taxation” and that the assessments "shall be paid by the river regulating district” (emphasis supplied). Thus, the only remaining question is whether that duty "enjoined by law” is suspended during the pendency of the District’s judicial challenge to the amount of the assessment.

The general rule on this question is not disputed. Section 704 (3) of the Real Property Tax Law provides that the commencement of a tax certiorari proceeding does not stay the collection of taxes. Further, as this Court stated in Grant Co. v Srogi (52 NY2d 496, 515), "[i]t is well established that one challenging a tax assessment must continue to pay his taxes”. The rule rests on a recognition that "taxes are the lifeblood of government, and their prompt and certain availability an imperious need.” (Bull v United States, 295 US 247, 259.) For that reason, "a municipality ordinarily should not be denied or delayed in the enforcement of its right to collect the revenues upon which its very existence and the general welfare depends.” (Grant Co. v Srogi, supra, at 516.)

Respondents do not take issue with these policies as they apply to other tax-paying property owners. Rather, respondents argue that a special exception should be made in cases where the State is the delinquent taxpayer. To support this position, they rely, in part, on RPTL 1004 (2), which insulates the State from having to pay interest and penalties for delinquent taxes, and RPTL 1174, which protects State-owned lands from tax foreclosure proceedings. These statutes, respondents contend, demonstrate an over-all legislative intention to afford the State preferential treatment in the enforcement of its obligations as a local taxpayer. In light of this perceived intention, respondents ask this Court to follow the Legislature’s over-all plan by exempting the State from the Grant Co. rule and precluding the use of mandamus as a remedy for the State’s refusal to pay local taxes while it challenges its assessment.

However, the legislative design may not be stretched so far. RPTL 1174 is merely the most recent codification of the long-standing statutorily based rule that "there shall be no sale for taxes or assessments of lands belonging to the state” (Matter of People [Melrose Ave.], 234 NY 48, 54). Similarly, RPTL 1004 (2) is simply an expression of the general principle, recognized in many other contexts, that penalties in excess of the sums due or needed to compensate "are not sensibly assessed against the governmental entity itself’ (City of Newport v Fact Concerts, 453 US 247, 267), since, in such cases, " 'the burden of punishment [would be borne by] the taxpayers and citizens’ ” (Sharapata v Town of lslip, 56 NY2d 332, 338; see, Public Officers Law § 17 [3] [a], [c]; § 18 [4] [b], [c]; General Municipal Law § 50-k; see also, 1987 Opns St Comp No. 87-20 [penalties imposed for late payment of real property tax are punitive in nature]). Neither statute can be read as reflecting a broad legislative intention to exempt the State from all of the rules applicable to other taxpayers or all of the enforcement mechanisms potentially available against it. Indeed, in light of these clear legislative provisions insulating the State from two specific enforcement remedies, the more plausible inference would seem to be that no further protection for the State was intended.

Nor are we persuaded by respondents’ contention that a legislative intent to shield them from mandamus may be inferred by comparing the RPTL provisions applicable to the State with those applicable to municipalities. Section 995 of the RPTL forbids tax foreclosures on real property owned by municipal corporations and provides, in addition, that "[i]f [the] tax or special assessment remains unpaid for more than sixty days after demand therefor * * * payment may be enforced by a proceeding brought pursuant to article [78].” Relying on the absence of an analogous provision for enforcement applicable to State-owned property, respondents ask us to infer a legislative intent to place the State beyond the reach of article 78 mandamus proceedings brought by the local tax collector. The statute does not, however, support such a conclusion.

RPTL 995 is derived from former section 4-b of the Tax Law, which was adopted in 1958 at the request of the New York State County Officers Association (L 1958, ch 890, § 1; see, Bill Jacket, Mem to Governor from State Bd of Equalization and Assessment, Apr. 21, 1958 [SBEA Mem]). The statute was enacted in recognition that local authorities sometimes "los[e] trac[k] of’ municipally owned real property and, consequently, fail to pay the required taxes, leading to unnecessary tax foreclosures (L 1958, ch 890, Bill Jacket, Letter to Governor from County Officers Assn, Apr. 8, 1958 [County Officers Assn Letter]; see, id., Mem to Governor’s Counsel from State Dept of Audit and Control, Apr. 13, 1958 [Dept of Audit and Control Mem]). To eliminate this hardship, the remedy of foreclosure proceedings against municipally owned property was abolished and the right to bring a proceeding under article 78 was substituted (id., County Officers Assn Letter; id., Dept of Audit and Control Mem; id., SBEA Mem).

There is nothing in the history of this particularized statute, however, to suggest that, as a matter of law or logic, mandamus was generally unavailable as a means of enforcing a governmental entity’s real property tax obligations. Significantly, neither this Court nor any other appellate court in this State had addressed the question at the time Tax Law former § 4-b was enacted. Indeed, it appears that the question simply had not previously arisen, quite possibly because it had generally been the practice of the State to continue paying its local taxes while challenging the assessments (see, Sponsors’ Mem in support of A 3768, "An act to amend the environmental conservation law, in relation to payment of disputed taxes by river regulating districts” [bill passed by Senate and Assembly but disapproved by the Governor, July 28, 1989]), and the remedy of foreclosure as against a municipality was available where its local tax obligations went unsatisfied. In any event, RPTL 995’s inclusion of a specific reference to the "substitute” remedy of article 78 cannot be construed as an indication of the Legislature’s intention to preclude the use of that remedy in analogous situations such as this one.

Finally, we find unpersuasive respondents’ contention that the relevant policy considerations compel a ruling in its favor. First, the respondents’ claim that dire consequences will ensue if the State is obliged to pay upon the "mere assessment of taxes” is based upon an implausible scenario in which localities routinely fix exorbitant assessments on State lands and then spend the funds in a way that precludes their subsequent recoupment. This catastrophic prediction depends for its validity upon assumptions that attribute a degree of irresponsibility to local taxing entities that we cannot accept. Second, respondents’ policy argument, which stresses the need to protect the State treasury, falls short because it fails to recognize the countervailing need to ensure continuity and predictability in the funding base available for local governmental services. This need, which was deemed sufficient to defeat the individual citizen-taxpayer’s claim in Grant Co. v Srogi (52 NY2d 496, 515-516, supra), is equally weighty when, as here, it is the State that is the taxpayer. Indeed, the balance of equities may even tilt more heavily in favor of local government’s taxing power when the State is the taxpayer, since the State is generally in a better position than an individual taxpayer to absorb a temporary overpayment pending judicial correction.

Accordingly, we hold that, like citizen-taxpayers, the State must timely pay its local real property taxes as assessed, notwithstanding the pendency of an article 7 tax certiorari proceeding (see, RPTL art 7), at least in the absence of special circumstances not present here. Since ECL 15-2115 permits localities to tax lands acquired for river regulating districts "in the same manner as state lands” and requires the districts to pay such assessments, respondent District has a duty enjoined by law which may be enforced by a writ of mandamus.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . According to the parties, the tax certiorari proceedings were still pending at the time that the briefs in this appeal were filed.

      . We have recognized a narrow exception in circumstances where the taxpayer threatened by the imminent loss of its property because of "the imposition of an intentionally excessive tax” seeks judicial protection in the form of injunctive relief (Grant Co. v Srogi, 52 NY2d 496, 517; see also, 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 482-483). However, that exception has no application here because there has been no showing of intentional abuse and, in any event, there can be no threat of an imminent loss of this State-owned property (see, RPTL 1174).

      . Because property acquired by the State for use by a river regulating district is subject to taxation "in the same manner as state lands” (ECL 15-2115) and respondents have not differentiated between the State and the District for purposes of this appeal, our discussion refers to the State’s local tax obligations, even though it is the District that is ultimately responsible for paying the disputed assessment.

      . The provision was omitted from the Real Property Tax Law when that statute was initially enacted as an integrated code in 1958 (L 1958, ch 959). The provision was restored one year later, however, as part of a package of technical corrections (L 1959, ch 733, § 23; see, Bill Jacket, Letter of Assn of Bar of City of NY, Apr. 20, 1959).

      . In the summer of 1989, both houses of the Legislature passed a bill that would have amended ECL 15-2115 to require river regulating districts to "make all timely payments of taxes at the amount assessed” pending disposition of any outstanding tax certiorari proceedings (A 3768, S 2547). The bill, which was prompted by the present controversy, was ultimately disapproved by the Governor, who stated, in passing, that "[a]t present * * * there is nothing in law to require the payment of even the undisputed amount of taxes owed by the [river regulating district]” during the pendency of a proceeding (Governor’s Disapproval Mem No. 23, July 25, 1989). However, the Governor’s construction is not binding on this Court.

      . In this connection, it is noteworthy that because the county government has had to advance the funds that respondent District refuses to pay, the net effect of respondents’ position has been to shift the risks and burdens of paying the assessment from the State to the county.


author: Chief Judge Wachtler.

text:
    In the Matter of Douglas E. Thurston, Respondent, v Richard N. Durose, as Commissioner of the Oneida County Department of Social Services, et al., Appellants.
    Argued October 18,1990;
    decided November 29, 1990

      POINTS OF COUNSEL

      Albert F Lawrence for appellant.

      Stephen L. Lockwood for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

In this case, we consider whether the appellant, the Oneida County Department of Social Services, can recover public assistance payments made to respondent Douglas Thurston after he reached the age of 21. Because we conclude that the Department can bring a direct action against the respondent (see, Social Services Law § 104) and, therefore, may place a lien against the proceeds of his personal injury settlement (see, Social Services Law § 104-b), even though he was a minor at the time his injuries were sustained, the order of the Appellate Division should be reversed insofar as appealed from, and the lien reinstated.

In 1984, respondent commenced an action against the City of Utica, five of its police officers and its chief of police, seeking damages under 42 USC §§ 1981, 1983, and 1988 for injuries he had sustained a year earlier when he was still under the age of 21. In his complaint filed in the United States District Court for the Northern District of New York, respondent claimed that the officers attacked him, wrongfully detained him, delayed medical treatment, and charged him with assorted violations of New York’s Penal Law without cause. He settled his claim in 1988, after having reached his 21st birthday, for $65,000. Thereafter, the Department placed a lien against respondent’s settlement proceeds pursuant to Social Services Law § 104-b. This section permits a public welfare official to attach the personal injury recovery of a public assistance recipient in order to recoup benefits paid on and after the date the injuries were sustained.

Respondent commenced an article 78 proceeding to annul the determination of the Department and to vacate the lien it had placed against his personal injury proceeds. His claim was that inasmuch as the action against the city arose prior to his reaching his majority, the lien could not properly attach. Respondent, however, did not challenge the Department’s ability to recover medical expenses that the Department had incurred on respondent’s behalf. Supreme Court ordered the respondent to reimburse the Department for the portion of his recovery that represented his medical and hospital expenses, but disallowed the remainder of the lien. The Appellate Division affirmed, holding that the portion of the settlement that represented damages for respondent’s personal injuries was not subject to the lien. The Appellate Division stated that while the Department may have a claim for public assistance payments made after the respondent reached his majority, it could not seek recovery by placing a lien against the settlement proceeds.

We disagree. We have already examined the provisions of the Social Services Law that permit public welfare officials to seek recovery of public assistance benefits (Baker v Sterling, 39 NY2d 397). Section 104 (1) allows officials to bring an action or proceeding against a recipient of public assistance who is "discovered to have real or personal property * * * [and who] received assistance and care during the preceding ten years.” The official is "entitled to recover up to the value of such property the cost of such assistance or care” (id.)

The official’s ability to proceed under section 104 (1) is limited by the express language of section 104 (2) when the recipient of public assistance is a minor. Subdivision (2) of section 104 provides that "[n]o right of action shall accrue against a person under twenty-one years of age by reason of the assistance or care granted to him unless at the time it was granted the person was possessed of money and property in excess of his reasonable requirements, taking into account his maintenance, education, medical care and any other factors applicable to his condition.”

In Baker, we held that the lien statute, section 104-b, was similarly subject to the limitations contained in section 104 (1) and section 104 (2) (39 NY2d, at 405). "[Section 104-b is purely procedural. 'It relates to the remedy rather than to the right’ and the scope of the remedy is governed by the terms of the statute creating the right” (id., quoting Department of Welfare v Siebel, 6 NY2d 536, 545). We thus concluded in Baker that "whether the agency seeks to recover directly in an action or proceeding, or indirectly by enforcing a lien in the recipient’s suit, its right to recover is subject to the limitations imposed by section 104” (id.). As a result, under the facts of that case, we held that when the New York City Department of Social Services sought to place a lien on an infant’s personal injury recovery, the lien would not attach "unless the infant possessed money or property in excess of his needs at the time the assistance was granted,” as required by section 104 (2) (id.).

In Baker, we noted that "[a]n award for personal injuries * * * compensates the infant for his loss by providing a fund to satisfy his anticipated needs occasioned by the injury. By definition this fund can never be considered 'money or property in excess of his reasonable requirements.’ ” (39 NY2d, at 405-406.) Respondent argues that this language insulates his personal injury settlement from either a lien or a direct action because the injury giving rise to the personal injury action occurred when respondent was a minor and because the settlement proceeds by their nature can never be considered "in excess of his reasonable requirements.” We disagree. Whether the Recovery here was in excess of this respondent’s reasonable requirements would only be relevant if respondent were a minor and the Department’s ability to recover expenditures made on the respondent’s behalf was consequently limited by section 104 (2). Because the Department seeks to recover payments made only after the respondent had reached his majority, however, the Department’s ability to recover is limited solely by section 104 (1) and not by section 104 (2). As an adult, the respondent had received public assistance payments during the preceding 10 years and was discovered to have personal property, i.e., a cause of action that eventually led to a substantial recovery. Since the requirements of section 104 (1) were satisfied in this case, the Department’s ability to assert a lien pursuant to section 104-b was triggered and it was entitled to recover those payments made when the respondent was an adult through the use of the lien.

The mere fact that respondent’s injury was sustained while he was still a minor does not insulate the proceeds of his personal injury settlement from attachment. The Department should not be barred from seeking recovery for four years of public assistance simply by virtue of the fact that a settlement reached when respondent was 25 had its origins in an incident that occurred when the respondent was still a minor. Respondent was an adult when the public assistance payments at issue were made and we believe that this alone is determinative. The language of section 104 (2) is applicable only when the recipient is a minor and thus bars neither a direct action nor a lien under these facts. Our holding in Baker does not compel a contrary conclusion.

Although we agree with the Appellate Division that the Department has a claim for payments made after respondent reached his majority, we do not believe that the Department is barred from attaching a portion of respondent’s settlement proceeds pursuant to section 104-b and that it can only bring a direct action under section 104. Our statement in Baker that a personal injury award cannot by nature be considered "in excess of [a recipient’s] reasonable requirements” does not in any way dictate the result reached by the Appellate Division in this case. Because the respondent was an adult when the public assistance in question was granted, subdivision (2) is not triggered. As a result, the Department was free to proceed under either section in order to recover those payments made to the respondent after he reached his majority. Thus, the Department’s lien on the respondent’s personal injury settlement should be reinstated to the extent that the lien corresponds to public assistance that was granted to the respondent after he reached his 21st birthday.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and respondent’s application to vacate appellant’s lien against the proceeds of respondent’s settlement of his personal injury action, to the extent the lien was for public assistance granted after respondent attained the age of majority, denied.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order, insofar as appealed from, reversed, etc.


author: Simons, J.

text:
    B & F Building Corp., Appellant, v William J. Liebig et al., Respondents.
    Argued October 16, 1990;
    decided November 29, 1990

      POINTS OF COUNSEL

      Carl D. Bernstein, R. Gordon Abitbol and Richard C. Agins for appellant.

      Thomas J. Goodwin for respondents.

      Victor A. Kovner, Corporation Counsel (Elizabeth S. Natrella and Pamela Seider Dolgow of counsel), for the City of New York and another, amici curiae.

   OPINION OF THE COURT

Simons, J.

Defendants William and Suzanne Liebig hired plaintiff B & F Building Corporation to renovate their cooperative apartment in Manhattan. They paid it over $237,000 on account as the work progressed but refused further payments claiming it had breached the agreement. Plaintiff thereupon instituted this action to recover the unpaid balance or for judgment declaring that it held a valid mechanic’s lien. Defendants counterclaimed for the expense of correcting the allegedly faulty work.

Plaintiff is a home improvement contractor within the meaning of section 20-386 of the Administrative Code of the City of New York but was not licensed, as the Code requires, when the agreement was signed or when the work was performed (Administrative Code of City of New York § 20-387). Under existing case law, therefore, its contract with defendants is unenforceable (see, Mortise v 55 Liberty Owners Corp., 102 AD2d 719, affd 63 NY2d 743; Chosen Constr. Corp. v Syz, 138 AD2d 284; Bujas v Katz, 133 AD2d 730). Plaintiff contends that CPLR 3015 (e) changed this substantive law. That section allows a contractor who does not possess a required license at the commencement of the action to amend the complaint to allege the particulars of an after-acquired license. Inasmuch as plaintiff obtained a license after the litigation was commenced, it claims that that statute permits it to maintain this action.

Supreme Court granted defendants’ motion to dismiss the complaint under CPLR 3015 (e) and denied plaintiff’s cross motion to amend the complaint to assert the particulars of its after-acquired license. It found plaintiff’s failure to adhere to the Code’s licensing requirement rendered the parties’ contract unenforceable and precluded recovery in contract or quantum meruit. The court ruled that even under CPLR 3015 (e), a contractor must comply with two separate tests to sustain a claim: (1) a valid license at the time of pleading and (2) a valid license at the time of the contract and work. Otherwise, it reasoned, the protective purposes of the Code would be undermined by allowing validation of an illegal contract upon the issuance of a license after suit had been commenced. The Appellate Division affirmed for the reasons stated by Supreme Court. We granted leave to appeal and now affirm.

The Home Improvement Business provisions of the Administrative Code of the City of New York were enacted to safeguard and protect consumers against fraudulent practices and inferior work by home contractors (see, Mortise v 55 Liberty Owners Corp., 102 AD2d 719, 720, affd 63 NY2d 743, supra; Administrative Code § 20-385). It provides that ”[n]o person shall * * * perform or obtain a home improvement contract as a contractor or salesperson from an owner without a license therefor” (Administrative Code § 20-387). To obtain a license, contractors can be required to submit to background checks, post bonds for faithful performance of work, submit to the hearing procedures of the Department of Consumer Affairs and abide by rules providing for fines and cancellation of contracts (see, Administrative Code §§ 20-385 — 20-402). An unlicensed contractor who performs home improvement work in New York City is guilty of a misdemeanor (Administrative Code § 20-401 [1]).

In an effort to compel compliance with the home improvement licensing law, in 1983 the Legislature adopted CPLR 3015 (e) which places the burden of pleading a required license on the contractor. The section provides that "[w]here the plaintiffs cause of action against a consumer arises from the plaintiffs conduct of a business which is required by state or local law to be licensed * * * the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed”. The statute also provides that "where the plaintiff does not have a license at the commencement of the action [it] may * * * amend the complaint with the name and number of an after-acquired license and the name of the governmental agency which issued such license or move for leave to amend the complaint” in accordance with the provisions of CPLR 3025. Plaintiff contends that this statute does not solely benefit the narrow class of contractors whose licenses have lapsed after performing the contract but was intended to permit contractors to maintain a cause of action even when they were unlicensed at the time the contract was executed or the work was performed.

CPLR 3015 (e) does not expressly address the question. The legislative purpose in enacting it, however, was not to strengthen contractor’s rights, but to benefit consumers by shifting the burden from the homeowner to the contractor to establish that the contractor was licensed. The Sponsors’ Memoranda explain that the statute was introduced in the belief that CPLR 3015 (e)’s affirmative pleading requirement would provide additional protection to consumers, increase incentives for businesses to comply with licensing requirements and help to raise revenue (see, Letter of Senator Halperin to Governor’s Counsel dated July 21, 1983, Letter of Assemblyman Dunne to Governor’s Counsel dated July 10, 1983; Bill Jacket, L 1983, ch 817; see also, Todisco v Econopouly, 155 AD2d 441, 442; Zandell v Zerbe, 139 Misc 2d 737, 741). The interpretation of the statute suggested by plaintiff would defeat these goals, and those underlying the Home Improvement Business provisions of the Administrative Code, by permitting contractors to operate without the necessity of acquiring a license unless they became involved in litigation.

The Legislature is presumed to be aware of the law in existence at the time of an enactment and to have abrogated the common law only to the extent that the clear import of the language of the statute requires (Arbegast v Board of Educ., 65 NY2d 161, 169). The Attorney-General’s Memorandum to the Governor supporting the bill highlighted the case law precluding recovery by an unlicensed contractor (see, Mem of Attorney-General to Governor, July 21, 1983, Bill Jacket, L 1983, ch 817) and there is nothing in the language and legislative history of CPLR 3015 (e) suggesting an intent by the Legislature to weaken this protection or expand the rights of unlicensed contractors. Indeed, the protective purposes of the statute and the various licensing laws which CPLR 3015 (e) addresses would be undermined by overturning this body of case law and validating an illegal contract upon the issuance of a license after suit. A license issued after the work is completed affords none of the consumer protections contained in the regulations and applicable to licensed home improvement contractors while the work is being performed (see, Administrative Code §§ 20-385 — 20-402). Consequently, we hold that the after-acquired license provision of CPLR 3015 (e) is only applicable where the contractor was licensed at the time that the work was done and cannot be used to validate a contract that was prohibited when performed.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.


text:
    In the Matter of Jerold Jabbar L., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued April 25, 1990;
    decided May 31, 1990

      APPEARANCES OF COUNSEL

      John J. Rivoli, Law Guardian (Ardeth L. Houde of counsel), for appellant.

      Patrick M. Malgieri, County Attorney (Ronald A. Case of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum at the Appellate Division (147 AD2d 928).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Respondent, v Bertha Vasquez, Appellant.
    Argued April 25,1990;
    decided May 31, 1990

      APPEARANCES OF COUNSEL

      Winston McIntosh and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Alexander P. Schlinger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

It was error to deny defendant’s timely request for a missing witness charge. On this appeal, the People do not dispute that defendant met her initial burden of establishing prima facie that the police informant Ephraim Pena was knowledgeable about a pending material issue in the case — albeit an issue that was raised by the defendant. Moreover, it cannot be doubted that there was a sufficient showing that Pena was in the "control” of the People and could be expected to testify favorably to them. Pena’s relationship with law enforcement officials spanned a number of years, and it was Pena who informed the police that defendant — whose existence was previously unknown to the police — had had part of a shipment of cocaine delivered to her apartment.

Accordingly, it was incumbent upon the People, in order to defeat defendant’s request for a missing witness charge, to demonstrate that Pena was "not knowledgeable about the issue, that the issue [was] not material or relevant, that though the issue [was] material or relevant, the testimony would be cumulative to other evidence, that [Pena was] not 'available,’ or that [he] was not under [the People’s] 'control’ such that he would not be expected to testify in [their] favor.” (People v Gonzalez, 68 NY2d 424, 428.) This the People failed to do.

In response to defendant’s prima facie showing, the prosecutor denied that Pena was under the People’s control, as Pena no longer worked for the District Attorney. The prosecutor also contended that Pena was unavailable, asserting that he had been told by Detective Luis Ramos that Ramos "believed” that Pena was incarcerated somewhere in Texas, although the prosecutor did not know why Ramos thought that. The prosecutor was unable to supply any further information about Pena’s whereabouts, despite the fact that he had been on notice since early in the trial that defendant intended to seek a missing witness charge, but insisted that the People could not produce Pena at this point.

These conclusory remarks were inadequate to rebut defendant’s prima facie showing. Control is a "relative concept” and the inquiry is directed to the relationship between the witness and the parties rather than physical availability (see, People v Gonzalez, 68 NY2d, at 429, supra). The fact that a witness has at some time been a police informant does not invariably establish that he or she can be expected to give favorable testimony to the People, although it may well evidence a disposition to do so. However, a witness who has provided key information in the very case at hand can surely be expected to give testimony favorable to the People, absent some unusual circumstance. That Pena was not currently working for the District Attorney did not constitute such a circumstance, and in no way rebutted the rational inference that, consistent with the information he had provided in the investigatory phase of the case, he would testify favorably at trial.

As for the contention that Pena was unavailable by virtue of his supposed incarceration in Texas, the prosecutor’s vague references to that possibility were inadequate to demonstrate that Pena was beyond the power of the People to produce. We need not decide — if a proper showing had been made that Pena was indeed incarcerated in a Texas prison — whether that would have rendered him practically unavailable; that would have been a decision for the trial court to make based on the facts before it. But the prosecutor failed even to meet its preliminary obligation of showing that diligent efforts had been made to locate Pena. To the contrary, the prosecutor had made only the most cursory attempt to ascertain where Pena was, and therefore there was no basis to determine whether or not he could be produced.

Finally, the error in refusing to deliver the missing witness charge to which defendant was entitled cannot be said to be harmless. The evidence of defendant’s guilt consisted only of the presence of the cocaine in her apartment and a spontaneous admission she allegedly made to Detective Ramos. It was defendant’s contention that the cocaine had been planted by Pena himself, and several defense witnesses testified that Pena had access to the closet where the cocaine was later found by the police, acting on information supplied by Pena. Defendant denied making the admission attributed to her by Detective Ramos, who notably, did not record it. Moreover, Pena’s absence was a point argued by counsel in summation, and the jury evidently found it important, as it sent a note asking whether Pena could have been subpoenaed by the defense. Thus, it cannot be said that there was no significant probability that a properly instructed jury would have acquitted defendant (People v Crimmins, 36 NY2d 230, 242).

We have considered defendant’s suppression claim, and conclude that it is without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Rowland D., Appellant, v Charles J. Scully, as Superintendent of Green Haven Correctional Facility, et al., Respondents.
    Argued May 1,1990;
    decided May 31, 1990

      APPEARANCES OF COUNSEL

      Alice O. Mann and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Harvey M. Berman and O. Peter Sherwood of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (152 AD2d 570).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Jerrold D. Ziman et al., Respondents, v New York State Division of Housing and Community Renewal, Appellant, and Robert Walker et al., Intervenors-Appellants.
    Argued April 26,1990;
    decided May 31, 1990

      APPEARANCES OF COUNSEL

      Richard Hartzman and Dennis Hasher for appellant.

      John H. Teschner for intervenors-appellants.

      Sam Kazman and Bruce Levinson for respondents.

      Martin J. Heistein and Andrew Schepard for Rent Stabilization Association of New York City, Inc., amicus curiae.

      Carol S. Keenan, Ronald A. Zumbrun, Edward J. Connor, Jr., and R. S. Radford for Pacific Legal Foundation, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (153 AD2d 489). We add only that, in view of the unrefuted evidence of hardship, including two unchallenged audit reports prepared by DHCR’s own Accounting Division, it was not improper for the Appellate Division to remit the matter to DHCR with instructions to grant the petition.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    City of New York et al., Appellants, v State of New York, Respondent.
    Decided May 31, 1990
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York, Appellant, v Roberto Cabrera, Respondent.
    Decided June 5, 1990
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Appellant, v Frank Townsend, Respondent.
    Decided June 5, 1990
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Tarone Brooks, Appellant.
    Submitted May 7, 1990;
    decided June 5, 1990
   Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Marjorie Brown. Thomas C. Brown et al., Respondents; Theodore Fenstermacher, Appellant.
    Decided June 5, 1990
   Appeal, insofar as taken by Theodore Fenstermacher on behalf of Marjorie Brown, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that Theodore Fenstermacher is not her authorized legal representative; appeal otherwise dismissed upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Appellant, v Isabel Llanos, Also Known as Issabel Llanos, Respondent.
    Submitted March 19, 1990;
    decided June 5, 1990
   Motion to dismiss appeal denied.


text:
    In the Matter of National Advertising Company, Appellant, v Richard S. Blankfein, as Commissioner of the Department of Planning and Development of the Town of Oyster Bay, et al., Respondents, and Northeast Hotel Associates, Intervenor-Respondent. (And Five Additional Titles.)
    Submitted April 16, 1990;
    decided June 5, 1990
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division in Northeast Hotel Assocs. v National Adv. Co., dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.