author: ClPARICK, J. Bellacosa, J.

text:
    [675 NE2d 808, 653 NYS2d 54]
    In the Matter of Khalib Gould, Appellant, v New York City Police Department et al., Respondents. In the Matter of Harold Scott, Appellant, v New York City Police Department, Respondent. In the Matter of Joseph F. DeFelice ex rel. on Behalf of Christopher Barbera, Appellant, v New York City Police Department, Respondent.
    Argued October 10, 1996;
    decided November 26, 1996

      POINTS OF COUNSEL

      Rosemary Herbert, New York City, E. Joshua Rosenkranz and Richard M. Greenberg for appellant in the first above-entitled proceeding.

      Steven B. Wasserman, New York City, Robert M. Baum, Daniel L. Greenberg and Laura R. Johnson for appellant in the second above-entitled proceeding.

      Joseph F. DeFelice, Kew Gardens, appellant pro se in the third above-entitled proceeding.

      Paul A. Crotty, Corporation Counsel of New York City (Mar

      garet G. King and Barry P. Schwartz of counsel), for respondent in the first, second and third above-entitled proceedings.

      Robert M. Baum, New York City, Steven B. Wasserman and Laura R. Johnson for Legal Aid Society, amicus curiae in the first above-entitled proceeding.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Roseann B. MacKechnie, Virginia C. Modest and Thomas M. Ross of counsel), for New York State District Attorneys Association, amicus curiae in the first, second and third above-entitled proceedings.
   OPINION OF THE COURT

ClPARICK, J.

The three separate proceedings on appeal all involve petitioners’ efforts, pursuant to the Freedom of Information Law (FOIL), to obtain documents relating to their arrests from the New York City Police Department. In response to petitioners’ FOIL requests, the Police Department furnished assorted documents to petitioners, but refused to disclose complaint follow-up reports (commonly referred to as DBS’s) and police activity logs (commonly referred to as memo books). We hold that the complaint follow-up reports are not categorically exempt from disclosure as intra-agency material and that the activity logs are agency records subject to the provisions of FOIL. Consequently, we remit these proceedings to Supreme Court to determine whether the Police Department can make a particularized showing that a statutory exemption applies to justify nondisclosure of the requested documents.

I.

In Matter of Gould, attorneys for petitioner Khalib Gould submitted a FOIL request to the Police Department for all documents pertaining to his arrest and the related police investigation leading to his conviction for murder in the second degree and attempted murder in the second degree. In response, the Police Department furnished arrest, complaint and ballistic reports to Gould, but withheld complaint follow-up reports on the ground that the reports are exempt from FOIL production as intra-agency material and withheld police activity logs on the ground that the logs are the officers’ personal property. Gould instituted a CPLR article 78 proceeding challenging the Police Department’s decision, which was dismissed by Supreme Court. The Appellate Division unanimously affirmed.

In Matter of DeFelice, petitioner Christopher Barbera, through his attorney, requested police reports relating to his 1993 arrest that led to his conviction for attempted murder in the second degree and assault in the first degree. The Police Department provided Barbera with complaint reports, property vouchers, and arrest reports, but refused to produce the requested complaint follow-up reports and activity logs. On Barbera’s CPLR article 78 challenge, Supreme Court upheld the Police Department’s action, finding that the complaint follow-up reports and activity logs are exempt intra-agency material. The Appellate Division unanimously affirmed.

In Matter of Scott, petitioner Harold Scott, in a series of FOIL requests, sought Police Department documents relating to his 1983 arrest and subsequent conviction for rape and homicide. In response to the latest of these requests, the Police Department refused to produce police activity logs and interviews of witnesses who had testified at Scott’s criminal trial on the ground that the documents are exempt from disclosure under FOIL and further informed Scott that all other responsive documents had been provided to him in response to prior FOIL requests. On Scott’s subsequent CPLR article 78 challenge, Supreme Court upheld the Police Department’s refusal to produce the activity logs, but ordered the Department to disclose the interview reports. As to Scott’s request for additional documents which the Police Department certified it did not possess, Supreme Court denied the petition concluding that Scott only speculated that these documents existed. On Scott’s appeal, the Appellate Division unanimously affirmed, holding that police activity logs are exempt intraagency material and that the Police Department’s certification sufficed to establish the nonexistence of other records. This Court granted leave to appeal in all three proceedings.

II.

To promote open government and public accountability, the FOIL imposes a broad duty on government to make its records available to the public (see, Public Officers Law § 84 [legislative declaration]). Moreover, access to government records does not depend on the purpose for which the records are sought. We recognize that petitioners seek documents relating to their own criminal proceedings, and that disclosure of such documents is governed generally by CPL article 240 as well as the Rosario and Brady rules. However, insofar as the Criminal Procedure Law does not specifically preclude defendants from seeking these documents under FOIL, we cannot read such a categorical limitation into the statute (see, Public Officers Law § 87 [2] [a]; accord, Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 81 [absent an express provision or unequivocal legislative intent so indicating, CPLR article 31 — the civil litigation disclosure article — is not a statute specifically exempting public records from disclosure under FOIL]).

All government records are thus presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2). To ensure maximum access to government documents, the "exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption” (Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109; see, Public Officers Law § 89 [4] [b]). As this Court has stated, "[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld” (Matter of Fink v Lefkowitz, 47 NY2d 567, 571).

In keeping with these settled principles, blanket exemptions for particular types of documents are inimical to FOIL’S policy of open government (accord, Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 569). Instead, to invoke one of the exemptions of section 87 (2), the agency must articulate "particularized and specific justification” for not disclosing requested documents (Matter of Fink v Lefkowitz, supra, 47 NY2d, at 571). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, 62 NY2d, at 83).

Despite these principles, the courts below relied on the case of Matter of Scott v Chief Med. Examiner of City of N. Y. (179 AD2d 443, lv denied 79 NY2d 758, cert denied 506 US 891) as establishing a blanket exemption from FOIL disclosure for complaint follow-up reports and police activity logs. We conclude that this was error and hold, first, that the complaint follow-up reports are not entitled to a blanket exemption as intra-agency material, and, second, that the police activity logs are agency "records” available under FOIL. In addition, we hold that the Police Department adequately established the nonexistence of other documents requested by petitioner Scott. Accordingly, we reverse in Gould and DeFelice, modify in Scott, and remit in all three proceedings for Supreme Court to determine, upon an in camera inspection if necessary, whether the Police Department can make a particularized showing that any claimed exemption applies.

A.

A complaint follow-up report is a form document on which a police officer "reportfs] additional information concerning a previously recorded complaint” (New York City Police Dept Patrol Guide § 108-8). The courts below held that the Police Department properly withheld these reports under the intra-agency exemption, which provides that an "agency may deny access to records or portions thereof that: * * * are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; or iv. external audits” (Public Officers Law § 87 [2] [g]). Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify-complete nondisclosure of the reports. We agree.

Initially, we note that one court has suggested that complaint follow-up reports are exempt from disclosure because they constitute nonfinal intra-agency material, irrespective of whether the information contained in the reports is "factual data” (see, Matter of Scott v Chief Med. Examiner of City of N. Y., 179 AD2d 443, 444, supra [citing Public Officers Law § 87 (2) (g) (iii)]). However, under a plain reading of section 87 (2) (g), the exemption for intra-agency material does not apply as long as the material falls within any one of the provision’s four enumerated exceptions. Thus, intra-agency documents that contain "statistical or factual tabulations or data” are subject to FOIL disclosure, whether or not embodied in a final agency policy or determination (see, Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75, 83, supra; Matter of MacRae v Dolce, 130 AD2d 577).

The question before us, then, is whether the complaint follow-up reports contain "factual data.” Although the term "factual data” is not defined by statute, the meaning of the term can be discerned from the purpose underlying the intraagency exemption, which is " 'to protect the deliberative process of the government by ensuring that persons in an advisory role [will] be able to express their opinions freely to agency decision makers’ ” (Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 132 [quoting Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546, 549]). Consistent with this limited aim to safeguard internal government consultations and deliberations, the exemption does not apply when the requested material consists of "statistical or factual tabulations or data” (Pub-lie Officers Law § 87 [2] [g] [i]). Factual data, therefore, simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making (see, Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 827, mod on other grounds 61 NY2d 958; Matter of Miracle Mile Assocs. v Yudelson, 68 AD2d 176, 181-182).

Against this backdrop, we conclude that the complaint follow-up reports contain substantial factual information available pursuant to the provisions of FOIL. Sections of the report are devoted to such purely factual data as: the names, addresses, and physical descriptions of crime victims, witnesses, and perpetrators; a checklist that indicates whether the victims and witnesses have been interviewed and shown photos, whether crime scenes have been photographed and dusted for fingerprints, and whether neighborhood residents have been canvassed for information; and a blank space denominated "details” in which the officer records the particulars of any action taken in connection with the investigation.

However, the Police Department argues that any witness statements contained in the reports, in particular, are not "factual” because there is no assurance of the statements’ accuracy and reliability. We decline to read such a reliability requirement into the phrase "factual data,” as the dissent would have us do, and conclude that a witness statement constitutes factual data insofar as it embodies a factual account of the witness’s observations. Such a statement, moreover, is far removed from the type of internal government exchange sought to be protected by the intra-agency exemption (see, Matter of Ingram v Axelrod, 90 AD2d 568, 569 [ambulance records, list of interviews, and reports of interviews available under FOIL as "factual data”]). By contrast, any impressions, recommendations, or opinions recorded in the complaint follow-up report would not constitute factual data and would be exempt from disclosure. The holding herein is only that these reports are not categorically exempt as intra-agency material. Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made. In this connection, we are well aware that an indeterminate amount of data collected during a criminal investigation may find its way into police files regardless of whether it ultimately proves to be reliable, credible, or relevant. Disclosure of such documents could potentially endanger the safety of witnesses, invade personal rights, and expose confidential information of nonroutine police procedures. The statutory exemptions contained in the Public Officers Law, however, strike a balance between the public’s right to open government and the inherent risks carried by disclosure of police files (see, e.g., Public Officers Law § 87 [2] [b], [e], [f]).

B.

We next address the Police Department’s refusal to disclose police activity logs. The Police Department, which is indisputably an "agency” for FOIL purposes (see, Public Officers Law § 86 [3]), contends that the activity logs are the officers’ personal property and, therefore, not agency "records.” We disagree. Because the activity logs contain "information kept [or] held * * * for an agency,” they are "records” available under FOIL (Public Officers Law § 86 [4]).

Activity logs are the leather-bound books in which officers record all their work-related activities, including assignments received, tasks performed, and information relating to suspected violations of law. Significantly, the Police Department issues activity logs to all its officers, who are required to maintain these memo books in the course of their regular duties and to store the completed books in their lockers; the officers are obligated to surrender the activity logs to superiors for inspection upon request; and the contents of the logs are meticulously prescribed by departmental regulation (accord, Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564-565 [minutes of meetings of private insurance companies, required by regulation and turned over to Insurance Department for inspection, are "records” under FOIL]). Thus, although the officers generally maintain physical possession of the activity logs, they are nevertheless "kept [or] held” by the officers for the Police Department, which places these documents squarely within the statutory definition of "records” (see, Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp., 87 NY2d 410, 417). Subject to any applicable exemption and upon payment of the appropriate fee (see, Public Officers Law § 87 [1] [b] [iii]), the activity logs are agency records available under the provisions of FOIL.

C.

Supreme Court did not abuse its discretion in concluding that the.Police Department adequately established the nonexistence of additional records requested by petitioner Scott. Once the records access officer for the Police Department certified to Supreme Court that the Police Department had provided Scott with all responsive documents in its possession, Scott was required to articulate a demonstrable factual basis to support his contention that the requested documents existed and were within the Police Department’s control (see, Matter of Calvin K. v De Francesco, 200 AD2d 619; Matter of Ahlers v Dillon, 143 AD2d 225, 226). Scott’s conjecture that the documents existed some 10 years ago was insufficient to warrant a hearing on the issue.

Finally, we note the Police Department’s argument and the dissent’s concern that the requests serve not the underlying purposes of FOIL, but the quite different private interests of petitioners in obtaining documents bearing on their cases and will produce an enormous administrative burden. This argument, however, is unavailing as the statutory language imposes a broad duty to make certain records publicly available irrespective of the private interests and the attendant burdens involved. Should the Legislature see fit to do so, it might, as the dissent suggests, amend the statute to balance the rights accorded.

Accordingly, the order in Gould should be reversed, with costs, the order in DeFelice should be reversed, with costs, and the order in Scott should be modified, without costs, and, as so modified, affirmed, and all three proceedings remitted to Supreme Court for further proceedings in accordance with the opinion herein.

Bellacosa, J.

(dissenting). The Freedom of Information Law (FOIL) (Public Officers Law § 84 et seq.) and this Court’s implementing and interpretive precedents (see, e.g., Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp., 87 NY2d 410; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75) combine to produce an unintended and anomalous set of results in these cases (see, New York State Bankers Assn. v Albright, 38 NY2d 430, 438; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675).

. The net practical result is a super-discovery tool affecting criminal proceedings by overarching application of FOIL. This overshadows this Court’s many specific precedents governing disclosure in criminal proceedings and the specific, calibrated remedies of the CPL (art 240) (see, e.g., People v Mobil Oil Corp., 48 NY2d 192, 200 [general statutory provisions apply only where particularized statutory provisions do not]; McKinney’s Cons Laws of NY, Book 1, Statutes § 238). It also evokes serious concern that systemic overload and inordinate delays in police departments and courts will result. Occasional FOIL efforts are more likely now to be encouraged and pursued as standard operating practice. File-by-file FOIL reviews and evaluations in virtually every criminal case will be the standing orders of the day, with many personnel displaced from other direct-line duties to process and evaluate eligibility, compliance, confidentiality, privilege, safety, security, and redactions galore in connection with massive document turnovers. The validation of this new staple of discovery is not within FOIL’S purpose and contemplated effectuation, though the acronym forecasts an ironic set of consequences.

For these reasons and with the shared hope that legislative attention will be alerted promptly to restore, at least prospectively, a fair and sensible balance of proportionate rights in this discovery field, I respectfully dissent and vote to affirm.

The fundamental policy underlying FOIL is the "people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations” made by government (Public Officers Law § 84 [emphasis added]). The focus of this fresh and open air reform is to provide the public with access to the same information used by public officials to arrive at official "determinations.” This statutory focus should be key in interpreting the inter-agency exemption contained in Public Officers Law § 87 (2) (g) as applied to these cases.

The petitioners here argue that criminal complaint follow-up reports (DBS’s) and the personal memo books of individual police officers are subject to and not exempt from FOIL because they are "statistical or factual tabulations or data” {see, Public Officers Law § 87 [2] [g] [i]). This proffered interpretation fails to consider this subsection of the statute in its particular context and full import (New York State Bankers Assn. v Albright, 38 NY2d 430, 436-438, supra). Public Officers Law § 87 (2) (g) additionally subjects three other categories of inter-agency materials to disclosure: instructions to staff that affect the public, final agency policy or determinations, and external audits. Thus, this subsection focuses on subjecting to disclosure only those internal agency documents which pertain to official actions affecting the public generally. This limitation is further understood by reference to other subsections of the statute specifically exempting evidence compiled for law enforcement purposes in certain circumstances and where disclosure would risk life or safety {see, Public Officers Law § 87 [2] [e], KD.

The latter specifications are markedly different from those here. The contents of investigatory files which contain raw information gathered for the purposes of criminal investigation, and potentially prosecution, do not constitute the type of information upon which official determinations and actions are taken in the context framed and intended by FOIL. Raw evidence acquired by the police has not been "tabulated,” or processed, but simply recorded. As such, it has not been filtered or subjected to any analysis, verification or protective shielding by the relevant ágency under specific regulatory guidelines.

This Court, in effect, shifts the emphasis of FOIL so that it will functionally eclipse the nuanced procedural safeguards governing disclosure in criminal matters, as such. This is done with no evidence that the Legislature ever contemplated by language or history this significant joint availability.

Matter of Farbman & Sons v New York City Health & Hosps. Corp. (62 NY2d 75, supra) need not be applied so inexorably and extended in this fashion. In Farbman, this Court held that records which were subject to disclosure under FOIL could not be withheld merely because the requestor was a civil litigant against the agency, and rejected a blanket exemption from FOIL based on CPLR article 31 (id., at 78, 80-81). That holding relied on especially the fact that " 'the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public, and neither enhanced * * * nor restricted * * * because he is also a litigant or potential litigant’ ” (id., at 82, quoting Matter of John P. v Whalen, 54 NY2d 89, 99 [citations omitted]).

In these cases, the official respondents do not seek exemption from FOIL because the petitioners are defendants in criminal proceedings, but because of the interagency nature of the requested documents themselves (DOS’s and officers’ memo books). Interestingly and perhaps ironically, the rule of this case should entitle victims, and others, to disclosure of these same materials under a fair-game-for-all application of these enhanced FOIL principles. That may well multiply the administrative difficulty and, perhaps, even impossibility of compliance.

Substantial public policy considerations underlie the encouragement of and incentives for members of the community to be forthcoming with information serving the investigation of criminal activity and the apprehension and prosecution of criminals. Accurate and complete recordkeeping by officers is also important. Granting general access to raw observations, suppositions, notations and opinions, as in these cases, cannot well serve those overriding objectives in the criminal jurisprudence arena.

Thus, I vote to affirm in each case.

In Matter of Gould v New York City Police Dept. and Matter of DeFelice v New York City Police Dept.: Order reversed, with costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

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

In Matter of Scott v New York City Police Dept.: Order modified, without costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

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

      . The dissent reads Farbman to stand primarily for the proposition that an individual’s status as a litigant in an action against a governmental entity does not preclude reliance on FOIL. Although the Court did make this important point in Farbman, the Court also concluded, as an independent ground of decision, that ”[g]iven FOIL’S purpose, its broad implementing language, and the narrowness of its exemptions, [CPLR] article 31 cannot be read as a blanket exception from its reach. * * * Nowhere in FOIL * * * is there specific reference to records already subject to production under article 31, and no provision of FOIL bars simultaneous use of both statutes” (62 NY2d, at 81). Because CPL article 240 likewise fails to specifically exempt criminal-disclosure documents from FOIL, we are, just as in Farbman, not free to disregard the open-government mandate of FOIL based on what is perceived as some generalized tension between FOIL and a distinct statutory-disclosure scheme.

      . Although it was suggested in the courts below that police activity logs could be withheld under the privacy and intra-agency exemptions (see, Public Officers Law § 87 [2] [b], [g]), the Police Department does not advance these positions on appeal. Neither does the Police Department make the argument that all documents relating to law enforcement are categorically exempt from FOIL. Indeed, the Police Department acknowledges that it routinely discloses law-enforcement documents pursuant to FOIL requests, which is evidenced not only by the arrest, complaint, and ballistic reports turned over to petitioners herein, but also by the myriad lower court cases evaluating whether the Police Department justifiably withheld particular law-enforcement documents requested under FOIL.


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [675 NE2d 816, 653 NYS2d 62]
    In the Matter of Christopher H. Lunding et al., Respondents, v Tax Appeals Tribunal of the State of New York, Respondent, and Commissioner of Taxation and Finance of the State of New York, Appellant.
    Argued November 13, 1996;
    decided December 18, 1996

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Andrew D. Bing and Peter H. Schiff of counsel), for appellant.

      Christopher H. Funding, respondent pro se, and Cleary, Gottlieb, Steen & Hamilton, New York City, for Christopher H. Lunding and another, respondents.
   OPINION OF THE COURT

Chief Judge Kaye.

In this combined action for a declaratory judgment and CPLR article 78 relief petitioners challenge the constitutionality of Tax Law § 631 (b) (6), which disallows nonresidents a full deduction for alimony payments from their New York State income tax liability. The central question before us is whether Tax Law § 631 (b) (6) violates the Privileges and Immunities Clause of the United States Constitution. We conclude the statute is constitutional.

Petitioners Christopher H. Lunding and his wife Barbara J. Lunding are Connecticut residents. In 1990, Mr. Lunding, a partner in a New York City law firm, derived substantial income from the practice of law in this State. On their joint New York nonresident tax return filed for the year 1990, they reported a Federal adjusted gross income of $788,210, which included an adjustment of $108,000 for the full amount of alimony that Mr. Lunding had paid that year to his former spouse, also a Connecticut resident. On their return petitioners adjusted their New York State gross income by 48.0868% of the alimony payments — equaling $51,934 — which represented the percentage of Mr. Lunding’s 1990 claimed New York business income.

Relying on Tax Law § 631 (b) (6) the Audit Division of the Department of Taxation and Finance denied the alimony deduction and recalculated petitioners’ New York tax liability, concluding that they owed an additional $3,724. A Notice of Deficiency in that amount followed.

Petitioners then filed an administrative petition with the Division of Tax Appeals challenging the Notice of Deficiency on the ground that Tax Law § 631 (b) (6) was unconstitutional. Specifically, petitioners claimed that the tax which was the subject of the Notice of Deficiency cannot be collected because the statute and the Department’s actions discriminate illegally against nonresidents in violation of the Privileges and Immunities, Equal Protection and Commerce Clauses of the United States Constitution.

The Administrative Law Judge sustained the disallowance, holding that the Tax Appeals Tribunal lacked authority to declare the statute unconstitutional. In their exception petitioners conceded that the Tribunal’s jurisdiction did not encompass their constitutional challenge but asserted that principles of collateral estoppel and stare decisis applied, relying on the Third Department’s ruling in Matter of Friedsam v State Tax Commn. (98 AD2d 26, affd 64 NY2d 76). The Tribunal affirmed the decision of the ALJ, agreeing that Friedsam was not dis-positive.

Thereafter, petitioners commenced an article 78 proceeding. The Appellate Division converted the constitutional challenge into a declaratory judgment action and retained as an article 78 proceeding the remaining portion seeking annulment of the Tribunal’s decision. While recognizing both that this Court had affirmed Friedsam solely on statutory grounds and that the statutory provisions in the two cases are different, the Appellate Division declared the statute violative of the Privileges and Immunities Clause. Respondent Commissioner appealed as of right (CPLR 5601 [b] [1]). We now reverse.

Statutory Scheme

Tax Law § 631 (b) (6), enacted as part of the Tax Reform and Reduction Act of 1987 (L 1987, ch 28) (TRARA), specifies that

"[t]he deduction allowed by section two hundred fifteen of the internal revenue code, relating to alimony, shall not constitute a deduction derived from New York sources.”

New York source income of a nonresident is defined under Tax Law § 631 as:

"(a) * * * the sum of the net amount of items of income, gain, loss and deduction entering into his federal adjusted gross income, as defined in the laws of the United States for the taxable year, derived from or connected with New York sources, including:
"(1) his distributive share of partnership income, gain, loss and deduction * * *
"(k) * * *
"(1) Items of income, gain, loss and deduction derived from or connected with New York sources shall be those items attributable to * * *
"(B) a business, trade, profession or occupation carried on in this state”.

Beginning with the 1988 taxable year nonresidents’ income • from all sources is used in calculating their rate of New York tax. As we explained in Brady v State of New York (80 NY2d 596, 600, cert denied 509 US 905), under Tax Law § 601 (e) (1) the tax of a nonresident is first calculated "as if [the taxpayer] were a resident,” and the sum is then reduced by the percentage of income earned in New York compared to total income. While residents and nonresidents with the same total income are taxed at the same rate, the nonresident thus is taxed only on the percentage of income attributable to New York.

Consequently, Tax Law § 601 (e) (1) provides:

"There is hereby imposed for each taxable year on the taxable income which is derived from sources in this state of every nonresident * * * a tax which shall be equal to the tax computed under subsections (a) through (d) of this section * * * as if such nonresident * * * were a resident, multiplied by a fraction, the numerator of which is such individual’s * * * New York source income determined in accordance with part III of this article [ 631] and the denominator of which is such individual's * * * federal adjusted gross income for the taxable year.”

The hypothetical "as if a resident” tax liability includes all deductions available to a resident, including a deduction for alimony payments. However, the numerator of the fraction (referred to as the "apportionment percentage”) — the nonresident’s New York source income — is not reduced by any non-business deductions (including alimony payments). The denominator — the nonresident’s Federal adjusted gross income — has under the Internal Revenue Code been reduced by any alimony payments (26 USC § 215).

Petitioners urge that Tax Law § 631 (b) (6) is discriminatory because, without justification, it denies nonresidents the benefit of an alimony deduction from New York State tax liability. The Appellate Division agreed that the Privileges and Immunities Clause was violated. We answer the question differently.

Analysis

We begin with the familiar proposition that statutes — the enactments of a coequal branch of government — enjoy a presumption of constitutionality. Moreover, "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” (Austin v New Hampshire, 420 US 656, 661-662 [citing Madden v Kentucky, 309 US 83, 88; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356].)

The Privileges and Immunities Clause (US Const, art IV, § 2), entitling the "Citizens of each State * * * to all Privileges and Immunities of Citizens in the several States,” was intended to create a national economic union and establish a norm of comity between States. The Clause in essence ensures that citizens of State A may do business in State B on terms of substantial equality with the citizens of that State. (See, Supreme Ct. of N. H. v Piper, 470 US 274, 279-280; Toomer v Witsell, 334 US 385, 396.)

In two seminal decisions on State income taxation of nonresidents under the Privileges and Immunities Clause— Shaffer v Carter (252 US 37) and Travis v Yale & Towne Mfg. Co. (252 US 60) — the Supreme Court established that limiting taxation of nonresidents to their in-State income was a sufficient justification for similarly limiting their deductions to expenses derived from sources producing that in-State income. Further, the Court made clear that in testing the constitutionality of a tax law, a court should put aside "theoretical distinctions” and look to "the practical effect and operation” of the scheme (Shaffer v Carter, 252 US at 56).

Thus, in Shaffer the Court upheld a provision of the Oklahoma income tax law that taxed nonresidents’ income derived from local property and business and limited their deductions to losses related to these in-State activities, where Oklahoma also taxed all income of its own citizens. Similarly in Travis, the Court considered a New York statutory provision limiting a nonresident’s income tax deductions to such as "are connected with income arising from sources within the state” (Travis, 252 US at 73). In upholding the provision the Court noted that

"there is no unconstitutional discrimination against citizens of other States in confining the deduction of expenses, losses, etc., in the case of non-resident taxpayers, to such as are connected with income arising from sources within the taxing State, likewise is settled by [Shaffer].” (Id. at 75-76.)

The Travis Court, however, considered an additional provision of the Tax Law that disallowed nonresidents any personal exemptions and found this an unreasonable discrimination because New York’s proffered hope of reciprocity did not justify the statute’s discriminatory effect (id. at 81-82).

More recently, the Supreme Court in Austin v New Hampshire (420 US 656) invalidated New Hampshire’s commuters’ income tax where it determined that "the tax falls exclusively on the income of nonresidents; and it is not offset even approximately by other taxes imposed upon residents alone” (id. at 665). Indeed, the practical effect of the tax scheme in Austin was that New Hampshire taxed only the income of nonresidents working in the State, whereas its own residents paid no income tax whatever (but see, Spencer v South Carolina Tax Commn., 281 SC 492, 316 SE2d 386, affd by an equally divided ct 471 US 82 [reciprocity between States insufficient justification for disallowance of alimony deduction]).

As these cases illustrate, the Privileges and Immunities Clause does not mandate absolute equality in tax treatment. Rather, disparity in tax treatment between residents and nonresidents is permissible "in the many situations where there are perfectly valid independent reasons for it” (Toomer v Witsell, 334 US at 396). Therefore, the Clause is not violated where "(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective.” (Supreme Ct. of N. H. v Piper, 470 US at 284.)

In this State, the propriety of disallowing deductions to nonresidents for personal expenses unrelated to New York income-producing sources was definitively addressed in Matter of Goodwin v State Tax Commn. (286 App Div 694, affd 1 NY2d 680, appeal dismissed 352 US 805). There, the petitioner, a lawyer residing in New Jersey and practicing in New York City, challenged New York’s disallowance of deductions he claimed for his New Jersey real estate taxes, interest payments, medical expenses and life insurance premiums. In upholding the challenged disallowance, the Appellate Division gave three independently sufficient reasons to support the statute, two of which are particularly instructive here.

First, New York residents — unlike nonresidents — were subject to the burden of taxation on their worldwide income regardless of source and therefore were entitled to the offsetting benefit of full deductions (286 App Div at 696-698). Second, the court found it reasonable to disallow the deductions because they were personal expenses of the taxpayer and therefore "clearly a part of the petitioner’s personal activities in his home State * * * If these expenditures are to be allowed as deductions at all, they should be allowed by the State of the taxpayer’s residence” {id. at 701). Lastly, Goodwin justified the disparity on the basis that deductions for certain personal expenses reflected acceptable State policy to "give aid or encouragement of the character embodied in the tax deductions to its own residents” where the policies were linked to residence, and in such instances the State was not "constitutionally required to extend similar aid or encouragement to the residents of other States.” {Id. at 702.)

After Goodwin, the Appellate Division in Matter of Golden v Tully (88 AD2d 1058) considered a privileges and immunities challenge to New York’s policy of granting a moving expenses deduction to residents while denying it to nonresidents. Finding no justification for the disparate treatment the court, over the dissent of then-Justice Levine, struck down the statute. This Court affirmed the Appellate Division order but solely on the narrow ground that the Tax Commission in its answer and bill of particulars had offered only nonresidence as the explanation for the disallowance (58 NY2d 1047, 1049). Manifestly, Golden’s limited holding does not control the present case.

Nor does our affirmance in Friedsam undercut Goodwin’s applicability here. In Friedsam, under facts similar to the present case, a Connecticut resident challenged New York’s policy of disallowing alimony deductions from a nonresident’s New York adjusted gross income. The Appellate Division, again over the dissent of then-Justice Levine, upheld the challenge concluding that there was no social policy justification for the disparate treatment. We affirmed, but only on statutory grounds. Pointing to Tax Law former § 635 (c) (1) — which provided that "[t]he New York itemized deduction of a nonresident individual shall * * * be the same as for a resident individual” — we concluded the alimony disallowance was "contrary to statute and tax policy of this State.” (Friedsam, 64 NY2d at 81-82.) As petitioner concedes, Tax Law § 631 (b) (6), enacted some three years after Friedsam, had the effect of removing this impairment.

Now applying well-established principles to the facts before us, we conclude there is no violation of the Privileges and Immunities Clause. The disparate tax treatment of alimony paid by a nonresident is fully justified in light of the disparate treatment of income: nonresidents are taxed only on income earned in New York, while residents are taxed on all income earned from whatever sources. Focusing on the practical effect and operation of the challenged tax it is clear that the advantage granted residents is offset by the additional burden of being taxed on all sources of income. Indeed, unlike Travis and Shaffer, nonresidents are not denied all benefit of the alimony deduction since they can claim the full amount of such payments in computing the hypothetical tax liability "as if a resident” under Tax Law § 601 (e).

Furthermore, the disallowance is substantially justified by the fact that petitioners’ alimony payments are — not unlike the expenditures for life insurance, out-of-State property taxes and medical treatment at issue in Goodwin — wholly linked to personal activities outside the State. There is nothing to "warrant the petitioner’s shifting the allowance for these expenditures, which are intimately connected with the State of his residence, to New York State.” (Goodwin, 286 App Div at 701.) Indeed, there can be no serious argument that petitioners’ alimony deductions are legitimate business expenses. Thus, the approximate equality of tax treatment required by the Constitution is satisfied, and greater fine-tuning in this tax scheme is not constitutionally mandated.

Moreover, petitioners’ argument that the silence of TRARA’s legislative history as to the substantial reasons behind the treatment of nonresidents’ alimony deductions somehow preordains its unconstitutionality is without merit. Where, as here, substantial reasons for the disparity in tax treatment are apparent on the face of the statutory scheme, absence of a statement at the time of enactment will not invalidate the statute.

Petitioners fare no better under the Equal Protection and Commerce Clauses. Nothing in the Fourteenth Amendment prevents the States from imposing unequal taxation on nonresidents, so long as the inequality is rationally related to the furtherance of a legitimate State interest (see, Shaffer, 252 US at 58; Western & S. Life Ins. Co. v Board of Equalization, 451 US 648, 667-668). Here, New York’s treatment of alimony deductions is rationally related to its substantial policy of taxing only those gains realized and losses incurred by a nonresident in New York, while taxing residents on all income from whatever sources. Further, the challenged treatment is rationally related to its policy of limiting a nonresident’s deductions to those attributable to income-producing activities in New York. Even if this matter concerning alimony payments were deemed to involve interstate commerce, petitioners’ Commerce Clause claim would ultimately fail for the same reason.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, the petition dismissed and judgment granted declaring Tax Law § 631 (b) (6) constitutional.

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

Judgment reversed, etc.


author: Smith, J. Levine, J.

text:
    [675 NE2d 822, 653 NYS2d 68]
    Incorporated Village of Cedarhurst, Respondent, v Hanover Insurance Company, Appellant. Incorporated Village of Cedarhurst, Respondent, v Hanover Insurance Company, Appellant.
    Argued October 16, 1996;
    decided December 18, 1996

      POINTS OF COUNSEL

      Roy A. Mura, Buffalo, and Carolyn M. Henry for appellant in the first and second above-entitled actions.

      Horenstein, Josepher & Gewanter, P. C., New York City (Stanley M. Gewanter and James A. Jackson of counsel), for respondent in the first and second above-entitled actions.

      O’Melveny & Myers LLP, New York City (John L. Altieri, Jr., and Thomas J. Di Resta of counsel), and Wiley, Rein & Fielding (Laura A. Foggan, Daniel E. Troy and Treg A. Julander, of the District of Columbia Bar, admitted pro hac vice, of counsel), for Insurance Environmental Litigation Association, amicus

      curiae in the first and second above-entitled actions.

      Lydia Rocissano Marola, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the first and second above-entitled actions.
   OPINION OF THE COURT

Smith, J.

The issue in these appeals is whether defendant insurer is required to defend and indemnify its insured, the Incorporated Village of Cedarhurst, in two separate actions brought against the Village for property damage and personal injuries allegedly caused by a discharge or overflow of raw sewage from the municipal sewer system. Defendant contends that it properly disclaimed coverage in both cases pursuant to the pollution exclusions in the insurance policies. We conclude that since the complaints in the lawsuits brought against the Village did not allege any pollution-related injuries, the pollution exclusions do not relieve the insurer of its obligation to defend the Village under the policies. Since evidence of pollution-related injuries may develop at trial and absolve the insurer of its duty to indemnify under the pollution exclusions, the issue of indemnification must abide developments. Accordingly, we modify the order of the Appellate Division in each case.

In 1992, the Village was sued by three of its residents for personal injuries and property damage allegedly caused by a "rush of water and sewage” from the municipal sewage system which caused "massive flooding” of their basement. In a separate action commenced in 1993, Longwood Associates sued the Village for damages allegedly caused by an "overflow” of sewage onto its property. Plaintiffs in both actions alleged that the flooding and "overflow” had occurred because the Village negligently failed to adequately maintain the municipal sewage system.

The Village sought defense and indemnification coverage for these actions under a Commercial Lines Policy and a Commercial Umbrella Policy issued by the defendant. Defendant disclaimed coverage for each case on the ground that the pollution exclusions excused its duty to defend and indemnify the Village under the policies. The Village subsequently commenced these actions seeking a declaration of coverage. Defendant moved to dismiss the complaints and the Village cross-moved for . summary judgment in each action.

Supreme Court held that the pollution exclusions were inapplicable and granted summary judgment to the Village in both declaratory judgment actions. As relevant here, Supreme Court held that the exclusions did not apply because raw sewage was not a "pollutant” within the meaning of the policies. A judgment against the defendant was entered in each action.

Defendant appealed the judgments and the Appellate Division affirmed on the ground that the policies did not unambiguously exclude raw sewage from coverage through the pollution exclusions. The Appellate Division concluded that it was ambiguous whether "waste,” a category of pollutants specified in the insurance policies, included raw sewage and that the ambiguity rendered the pollution exclusions inapplicable. We granted defendant leave to appeal to this Court.

The insurance policies at issue here exclude coverage for bodily injuries, property damage or personal injuries "arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.” The policies define "pollutant” as "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed” (emphasis added).

Defendant contends that the pollution exclusions clearly and unambiguously exclude coverage for the discharge of raw sewage because the policies include "waste” in the definition of pollutant. The Village argues that no allegations or proof of damages due to the polluting, irritating or contaminating nature of the raw sewage were evident in the underlying actions, and that, consequently, the pollution exclusions are inapplicable. The Village also argues that the pollution exclusion clauses are ambiguous as to whether sewage may properly be classified as waste, a category of pollutants listed in the exclusions.

An insurer’s duty to defend must be determined from the allegations of the complaint. "If the complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend” (Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73; accord, Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 63 ["It is well established that a liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered”]; Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663). Moreover, to "negate coverage by virtue of an exclusion, an insurer must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case” (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652). Policy exclusions "are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction” (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311). In particular, pollution exclusions do not apply when the complaint does not allege that the discharge complained of actually results in pollution (Technicon Elecs. Corp. v American Home Assur. Co., supra, at 74 ["The first question, then, is whether the pollution exclusion is applicable at all. To be so, the complaint with respect to which coverage is sought must allege a discharge, dispersal, release or escape of a toxic or hazardous waste which has actually resulted in pollution”]).

In order to determine whether defendant was obligated to defend the Village in the underlying actions, we must first examine the allegations of the complaints in those actions to determine whether the plaintiffs in those actions alleged a pollution-related injury.

The complaints in the underlying actions allege that the Village was negligent in maintaining the municipal sewer system. In one action, it is alleged that physical property damage occurred from the flood-like nature of the substances released, characterized as a "rush of water and sewage.” Personal injuries were apparently incurred during an attempt to retrieve personal property from the flooded area. In the other action, it is alleged that an overflow from the sewage system caused damage to property. Both allege an injury from a flood-like event; neither alleges an injury from the "polluting,” irritating or contaminating nature of the sewage.

Furthermore, contrary to the dissent’s contention that this issue is unpreserved, the record reflects that the Village has consistently asserted that defendant had at least the duty to defend under the insurance policies because the underlying complaints allege negligence, and that the water and sewage mixture which was released was not a pollutant. These assertions, by their very nature, include the claim that the substances released did not exert a contaminating or irritating effect since, by definition, a pollutant must be either, or both.

The dissent’s assertion that "but for” the presence of sewage the underlying complaints would not support a cause of action (dissenting opn, at 304) assumes the existence of facts (the sewage’s irritating or contaminating character) which are not alleged in the complaints. It is only the flooding and "overflow” character of the discharges which occurred that are mentioned in the underlying actions. Thus, the "arising out of’ language in the exclusions fails to support the disclaimers of coverage which occurred here.

Manifestly, the damage alleged in the underlying complaints was caused by a discharge of something, but it has not been established that the injuries sustained were contamination caused by a discharge of sewage, or by the irritating or contaminating nature of the sewage. That is a matter for trial. But, in determining whether an insurer has the duty to defend, the applicability of the exclusions depends on the nature of the injury alleged in the underlying complaints, not exclusively on the nature of the substance released. Since any risk of liability faced by the Village allegedly arose from the flood-like nature of the discharge rather than its "polluting” character, the insurer is obligated to defend, but a trial is necessary before any determination on the issue of indemnification can be made.

Accordingly, the order of the Appellate Division in each case should be modified, without costs, in accordance with the opinion and, as so modified, affirmed.

Levine, J.

(dissenting). I respectfully dissent. The gravamen of the majority’s decision for affirmance avoids consideration of the Appellate Division’s conclusion that the pollution exclusion clauses in plaintiff Village’s primary and umbrella commercial liability insurance policies are ambiguous with respect to whether raw sewage is a pollutant. Instead, the majority hinges its holding on an interpretation of the complaints in the underlying actions of Yules and Kenney against the Village, and Longwood Associates against the Village, as not specifically alleging that the claimed injuries in those cases were "pollution-related” and caused by "the 'polluting,’ irritating or contaminating nature of the sewage.” (Majority opn, at 299 [emphasis supplied].) Thus, according to the majority, the pollution exclusion clauses do not apply and defendant owes the Village a duty to defend the underlying actions because "any risk of liability faced by the Village allegedly arose from the flood-like nature of the discharge rather than its 'polluting’ character” (majority opn, at 300). This ground for affirmance was unpreserved and, in any event, is based upon a premise inconsistent with our precedents.

As to the preservation question, the Longwood Associates complaint does not mention flooding, but merely alleges "damages to the Property as a result of an overflow of sewage from the aforementioned sewage system.” While it is true that the Yules and Kenney complaint refers to the flooding of the Yules’ basement from a break in the Village’s sewer system, the "flooding”, versus contaminating effect of the escaped sewage was never the basis for the Village’s position that the pollution exclusion clauses did not apply, nor was this distinction, on which the majority relies, the basis for the decisions of either of the courts below.

The affidavit of the Village’s attorney in support of its cross motion for summary judgment and in opposition to defendant’s motion to dismiss sets forth two grounds for asserting that defendant has a duty to defend: (1) that both of the complaints in the underlying actions against the Village contain allegations "relat[ing] to alleged [Village] negligence and a failure to maintain pipes and a sewer system, which is clearly covered under the subject 'liability’ insurance policy”; and (2) that there is an ambiguity in the pollution exclusion clauses "as to whether or not the subject 'pollution exclusion’ is intended to refer to 'human waste’, rather than hazardous and/or dangerous chemicals or other products which are normally the result of industry or man-made products.” The same affidavit sets forth two grounds for claiming that defendant also owes a duty to indemnify. The first is that the " 'pollution exclusion’ ” was intended to "deal with those companies, industrial corporations, etc., which are the actual polluters.” The second ground merely reiterates that "under any reasonable interpretation [of the pollution exclusion clauses] 'human waste’ or 'sewage’ was not and cannot be intended [pollutants] by the use of these words” (emphasis in the original). Again, in the Village’s reply to interrogatories, its grounds for avoiding, the application of the pollution exclusion clauses make no distinction between the flooding or polluting effect of the sewage released, but states that " 'human waste’ does not fit in the definition of 'Pollutants’ pursuant to the insurance policy” (emphasis in the original), and that the "terms and language of such exclusion * * * apply to 'man-made’ pollutants such as industrial waste and chemicals, etc. which are disposed of and/or dispersed by various business and/or manufacturing entities.”

Supreme Court based its decision on both of these arguments advanced by the Village, plus its conclusion that the Village was not an intentional polluter. Thus, the court relied upon the fact that the Village "is not an industrial or commercial enterprise that creates pollution or waste” (160 Misc 2d 795, 800), and that the elements of sewage are not "generally understood to be [pollutants] in ordinary usage (id., at 800), which are limited to a " 'chemical-like substance contained in the definition of pollutants or similar to those listed’ ” (id., at 800, quoting Oates v State of New York, 157 Misc 2d 618, 623). As already noted, the Appellate Division grounded affirmance on only one of the Village’s arguments, that "waste” in the pollution exclusion clauses was ambiguous with respect to its application to raw sewage. Thus, the majority’s reliance on the absence of contamination-related damages was never the basis of the Village’s claim or of the decisions by the lower courts here.

The majority’s attempt to circumvent the foregoing demonstration of a clear-cut violation of our preservation jurisprudence is unavailing. The majority acknowledges (majority opn, at 299) that the Village’s claims of the duty to defend were based upon the allegations of municipal negligence in the underlying complaints and upon the contention that sewage was not a pollutant as defined in the pollution exclusion clause, but claims that its rationale for affirmance was inherent in those claims, and hence, the preservation requirement was met here. This inference is readily refuted.

It seems self-evident that the preserved issues, namely, whether the Village’s negligence was pleaded in the underlying complaints and whether sewage falls within the definition of pollutants in the pollution exclusion clauses, are entirely unrelated to whether the "contaminating nature” of sewage directly caused the damages claimed in the underlying complaints. Put another way, if the majority is correct that the pollution exclusion clauses do not apply in the absence of an explicit allegation of pollution-type damages in the underlying complaints (which concededly are not alleged), insurance coverage for the claims in the underlying complaints would exist here even if the Village’s negligence had not been alleged therein, and even if the actual substance that was discharged by the Village was an "acid[ ], alkali[ ] [or] chemical[ ]”, expressly named as a pollutant in the exclusion clauses. Hence, in no way are the positions taken by the Village before Supreme Court applicable to the issue made dispositive by the majority in its opinion.

Defendant, thus, has now been adjudged responsible to defend the Village in the Longwood Associates and YulesKenney actions without ever being put on notice of the objection relied upon by the majority. This is a fundamental departure from our preservation jurisprudence (see, Lindlots Realty Corp. v County of Suffolk, 278 NY 45, 51-52; Arc Eng’g Corp. v State of New York, 293 NY 819, 820; Cohen and Karger, Powers of the New York Court of Appeals §§ 162-164, at 629-634 [rev ed 1952]; see also, Utica Mut. Ins. Co. v Prudential Prop. & Cas. Ins. Co., 64 NY2d 1049).

Even if the Village had timely raised the differentiation relied upon by the majority between damages caused by the “flooding” of sewage as contrasted with damage caused by the contaminating effect of the sewage, it is, in my view, a distinction without a difference. The pollution exclusion clauses in this case are “absolute,” in that they expressly encompass all claims for bodily injury or property damage “arising out of the actual * * * or threatened discharge, dispersal, seepage, migration, release or escape of pollutants” (emphasis supplied), and contain no exception for the sudden or accidental discharge of pollutants, or any similar qualifying language such as a requirement that the discharge must be upon land, the atmosphere or any water course or body of water (see, American States Ins. Co. v Nethery, 79 F3d 473, 475; Red Panther Chem. Co. v Insurance Co. of State of Pa., 43 F3d 514, 518, n 3; National Union Fire Ins. Co. v CBI Indus., 907 SW2d 517, 518 [Tex]; cf., Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640).

Indisputably, raw sewage is a highly toxic contaminant, exposure to which is invariably dangerous to human life because of its biological content, which includes fecal coliform and other sewage-borne bacteria (see, East Quincy Seros. Dist. v Continental Ins. Co., 864 F Supp 976; see also, Royal Ins. Co. o Bithell, 868 F Supp 878). Exposure to fecal matter in sewage creates a grave risk of such virulent diseases as cholera, typhoid fever and hepatitis A (see, American Medical Association, Encyclopedia of Medicine, Infectious Disease, at 582-585 [1989]; American Public Health Association, Control of Communicable Diseases Manual, at 94-100, 217-220, 502-507 [16th ed 1995]). Thus, the necessary remediation of the entry of raw sewage into a home was described in Royal Ins. Co. v Bithell (868 F Supp, at 879, supra) as the removal and replacement of soil underneath and within 12 feet of the structure and the virtual gutting of the interior.

Therefore, there is no conceptual way to differentiate between the damage "arising out of” the flooding of premises with this morbidly hazardous contaminant, as alleged in the Yules-Kenney complaint and the overflow of sewage in the Longwood Associates complaint, and any other invasion of sewage into a human habitat. The majority’s real objection to the application of the pollution exclusion clauses, as already discussed, is that the injuries alleged in the underlying complaints (particularly the personal injuries of Yules and Kenney alleged to have been incurred in attempting to stop the influx and rescue belongings), are not also alleged to be causally connected in any direct way with the contaminating quality of the sewage that flooded their premises. Whether the pleading of such a direct causal relationship in the underlying complaint is necessary under a policy exclusion which precludes coverage for damages "arising out of’ a given activity or state of affairs is a question of legal interpretation of the insurance contract upon which this Court has definitively spoken.

In Mount Vernon Fire Ins. Co. v Creative Hous. (88 NY2d 347, 350-351) and U.S. Underwriters Ins. Co. v Val-Blue Corp. (85 NY2d 821, 823), we held that the phrases "based on” and "arising out of” when used in insurance policy exclusion clauses are unambiguous and indistinguishable. We applied in both cases a "but-for” test to determine whether the "arising out of’ exclusion controls, that is, if no underlying cause of action could exist but for the existence of the excluded activity or state of affairs, the exclusion applies and there is no coverage (see, Mount Vernon Fire Ins. Co. v Creative Hous., supra, at 350; U.S. Underwriters Ins. Co. v Val-Blue Corp., supra, at 823).

Undoubtedly, the underlying complaints would not support a cause of action "but for” the intrusion of sewage into the plaintiffs’ buildings. Therefore, the pollution exclusion clauses control despite the absence of any pleaded direct causal link between the damages claimed in the underlying complaints and the contaminating properties of sewage unless, as the Appellate Division concluded, the clauses are ambiguous as to whether raw sewage is a pollutant.

Facially, in my view, the pollution exclusion clauses unambiguously include raw sewage as a pollutant. The clauses define pollutants as:

"any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

We construe insurance policy provisions, including exclusions, according to their plain and ordinary meaning (Goldman & Sons v Hanover Ins. Co., 80 NY2d 986, 987; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232).

By plain meaning and general usage, sewage is a contaminant. The dictionary definition of contaminate is "to render unfit for use by the introduction of unwholesome or undesirable elements [as in] water contaminated by sewage” (Webster Third New International Dictionary [Unabridged] 491 [1986] [emphasis in original]).

Sewage is designated a pollutant in the State’s Environmental Conservation Law (see, ECL 17-0105 [17]; 72-0601 [3], [4]). Sewage is named as a pollutant or contaminant under Federal statutes and regulations (see, 33 USC § 1362 [6]; 36 CFR 327.9). It also falls within the definition of hazardous waste under Federal legislation (see, 42 USC § 6903 [5] [B] [defining hazardous waste as "a solid wastes, or combination of solid waste, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may * * * pose a substantial present or potential hazard to human health” (emphasis supplied)]). Most courts have held that sewage is covered under standard insurance policy pollution exclusion clauses, as a pollutant, contaminant, irritant or waste (see, Titan Holding Syndicate v City of Keene, 898 F2d 265; Royal Ins. Co. v Bithell, 868 F Supp 878, supra; East Quincy Servs. Dist. v Continental Ins. Co., 864 F Supp 976, supra; City of Salina v Maryland Cas. Co., 856 F Supp 1467; Blackhawk Central City Sanitation Dist. v American Guar. & Liab. Ins. Co., 856 F Supp 584; Headley v St. Paul Fire & Mar. Ins. Co., 712 F Supp 745; contra, Florida Farm Bur. Ins. Co. v Birge, 659 So 2d 310 [Fla App]; Minerva Enters. v Bituminous Cas. Co., 312 Ark 128, 851 SW2d 403).

Once sewage is correctly identified as a pollutant because of its universally acknowledged qualities as a contaminant and as hazardous waste, the release of sewage and its ultimate infiltration of the Longwood Associates’ and Yules’ properties as alleged in their complaints unambiguously fall within the policy exclusion clauses. Their complaints alleged damages stemming from an "overflow” of sewage from the Village’s sewage system (Longwood Associates complaint) or flooding of water and sewage due to a "break or leak from the [Village] sewer system in the street into the basement of plaintiffs’ residence” (YulesKenney complaint). The umbrella policy pollution exclusion clause excludes all bodily injuries and property damage arising out of the release in any form of a pollutant. As we have already demonstrated, those plaintiffs’ causes of action would not have existed but for the dispersal of the pollutant. Hence, the umbrella policy pollution clause literally applies. Section 2 (f) (1) of the primary insurance policy pollution exclusion clause bars coverage for bodily injury or property damage arising out of any conceivable form of discharge, release or escape of pollutants

"(a) At or from any premises, site or location which is or was at any time owned or occupied by * * * any insured * * *
"(c) Which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for any insured.”

Again, the allegations of the complaints fit unambiguously within either of the foregoing alternative scenarios of the pollution exclusion clause in the primary policy. They allege that the sewage (pollutant) was discharged or released from a sewer line (site) owned by the Village (insured) (see, Primary Policy § 2 [fl [1] [a]). At the time of the release, the sewage (pollutant) was being disposed of as waste by the Village (insured) (see, id., § 2 [f] [1] [c]).

There is, thus, no facial ambiguity in the application of the policies’ pollution exclusion clauses to the underlying complaints in this action. Ambiguity may also arise in a pollution exclusion clause, however, as to its application in the context of the circumstances giving rise to the underlying complaint (see, Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, supra; see also, National Union Fire Ins. Co. v CBI Indus., 907 SW2d 517, supra). Thus, in Continental Cas. Co. v Rapid-American Corp., the policy’s pollution exclusion clause broadly excluded all manner of releases or discharges of pollutants (including irritants and contaminants) " 'into or upon land, the atmosphere or any water course or body of water’ ” (80 NY2d, at 647, supra). In Rapid-American Corp., the damages in the underlying complaint arose out of exposure to asbestos fibers, and we concluded that asbestos fibers plainly could be regarded as a pollutant, irritant or contaminant under the exclusion clause. Nonetheless, we found an ambiguity as to the application of the exclusion clause in the context of the claims in the underlying complaint. That is, we held that the clause was ambiguous as to whether a worker’s inhalation (or absorption) of fibers from handling asbestos products in confined, inside work spaces constituted a discharge of asbestos in the "atmosphere” as contemplated by the exclusion clause (Continental Cas. Co. v Rapid-American Corp., 80 NY2d, at 653, supra). We also found ambiguity as to whether this kind of exposure was the type of environmental pollution we read the exclusion clause as intended to cover, because of its use of such terms as "discharge,” "dispersal” into or upon the land, the atmosphere, etc. {id., at 654).

No such ambiguity of application in context (as found in Continental Cas. Co. v Rapid-American Corp.) exists here. The escape, discharge, dispersal of raw sewage, as a result of a rupture or leak from a municipal sewer line, into the streets and then into buildings in the vicinity — as alleged here in the underlying complaints — is a paradigmatic case of "broadly dispersed environmental pollution” (Continental Cas. Co. v Rapid-American Corp., 80 NY2d, at 654, supra; see also, Town of Harrison v National Union Fire Ins. Co., 89 NY2d 308 [decided today]). Thus, the pollution exclusion clauses in the Village’s policies with the defendant insurer unambiguously apply facially and in the context of the circumstances giving rise to the underlying complaints.

Accordingly, I would reverse and declare that the insurer has no duty to defend or indemnify the Village in the underlying actions.

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

In each case: Order modified, etc.

       Thus, under both the umbrella policy’s pollution exclusion clause and under section 2 (f) (1) (a) of the primary policy, the exclusion clauses apply here irrespective of any ambiguity as to whether sewage constitutes "waste”, as relied upon by the Appellate Division (223 AD2d 528, 529).


author: Ciparick, J.

text:
    [675 NE2d 829, 653 NYS2d 75]
    Town of Harrison et al., Respondents-Appellants, v National Union Fire Insurance Company of Pittsburgh, Pa., et al., Appellants-Respondents.
    Argued October 16, 1996;
    decided December 18, 1996

      POINTS OF COUNSEL

      Simpson, Thacher & Bartlett, New York City (Barry R. Ostrager of counsel), Jones Hirsch Connors & Bull LLP, White Plains (Kevin F. Cavaliere of counsel), and Cahill Gordon & Reindel, New York City (Thorn Rosenthal and Christopher Nelson of counsel), for National Union Fire Insurance Company of Pittsburgh, Pa., appellant-respondent.

      McElroy, Deutsch & Mulvaney, New York City (Kevin E. Wolff and Christopher R. Carroll of counsel), for North River Insurance Company, appellant-respondent.

      Anderson Kill & Olick, P. C., New York City (John H. Kazanjian, Eugene R. Anderson, A. Thomas Southwick and Jennifer Sclar of counsel), Robert S. Weininger, Town Attorney of Town of Harrison, and Fred J. Castiglia, Village Attorney of Village of Harrison, for respondents-appellants.

      O’Melveny & Myers, New York City (John L. Altieri, Jr., and Thomas J. DiResta of counsel), and Wiley, Rein & Fielding (Laura A. Foggan, Daniel E. Troy, William A. McGrath and Treg A. Julander, of the District of Columbia Bar, admitted pro hac vice, of counsel), for Insurance Environmental Litigation Association, amicus curiae.

      Lydia R. Marola, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

      Stewart, Occhipinti & Makow, L.L.P., New York City (Charles A. Stewart, III, of counsel), and Amy Bach, of the California Bar, admitted pro hac vice, for United Policyholders, amicus curiae.

   OPINION OF THE COURT

Ciparick, J.

The issue presented on this appeal concerns the interpretation of the pollution exclusions contained in the commercial liability policies issued to plaintiffs, the Town of Harrison and Village of Harrison. The Appellate Division determined that because plaintiffs were not responsible for the alleged illegal dumping of waste materials onto property owned by complainants in three of the underlying actions, the pollution exclusion clauses in the policies were inapplicable to bar coverage. We disagree. The language of the pollution exclusions does not require that the insured be the actual polluter in order for the exclusion to apply. Therefore, defendant insurers properly relied on the unambiguous pollution exclusion to deny coverage to the insureds.

Plaintiffs were insured by National Union Fire Insurance Company (National Union) under a "public officials and employees” liability policy and by The North River Insurance Company (North River) under a combined casualty, crime and property policy. Each policy contained several exclusions, including a provision that excluded coverage for claims arising from environmental pollution, whether sudden or not.

According to plaintiffs, three notices of claim and complaints were served on them by the owners of contiguous residential properties alleging that plaintiffs negligently failed to prevent and abate the illegal disposal of noxious waste on their land by an excavation contractor retained by the landowners to regrade their properties. By three separate State court actions, these property owners sought damages on a variety of claims, including personal injuries, property damage, environmental costs and clean-up costs. A fourth action was instituted in Federal court, subsequent to the filing of a notice of claim, by the owner of property adjacent to a municipal highway storage building and garage, alleging that plaintiffs unlawfully dumped and permitted others to dump pernicious waste materials on his residential property. This property owner charged plaintiffs with the release of hazardous substances in violation of Federal statute and common-law rights, and sought damages and other relief.

As required by the terms of the subject liability policies, plaintiffs notified defendants of these four matters and requested coverage. Defendants disclaimed coverage and declined to defénd and indemnify plaintiffs in these actions based on the pollution exclusion clauses. Defendants informed plaintiffs that the policies do not extend to claims arising out of the dumping of waste materials, contaminants or pollutants as alleged in the underlying complaints. Thereafter, plaintiffs instituted this action seeking a judgment declaring that defendants are obligated to defend and indemnify plaintiffs in the underlying actions.

Defendants answered and moved for summary judgment dismissing the complaint and for a declaration that they are not obligated to defend or indemnify plaintiffs. Plaintiffs cross-moved for summary judgment on the complaint. Supreme Court granted defendants’ motions for summary judgment and declared that the insurers had no duty to defend or indemnify plaintiffs because the pollution exclusion clauses unambiguously excluded coverage for claims arising from the discharge or dispérsal of waste materials, irritants or pollutants and denied plaintiffs’ cross motion. Plaintiffs appealed and National Union cross-appealed from so much of the order and judgment that failed to declare that it had no insurance obligation under other policy exclusions.

The Appellate Division modified (see, Town of Harrison v National Union Fire Ins. Co., 219 AD2d 640). As relevant to this appeal, the modification denied defendants’ motion for summary judgment with regard to the three State court actions, reinstated the complaint as to these claims, and granted plaintiffs’ cross motion by declaring that defendants are obligated to defend and indemnify plaintiffs in the State court actions (see, id., at 641-642). The Court determined that Supreme Court erred in finding that the pollution exclusions precluded coverage in the State court actions where plaintiffs were not responsible for the illegal dumping and none of plaintiffs’ alleged acts of malfeasance resulted in environmental pollution (see, id., at 643). By contrast, the Court held that because the Federal court action alleges that plaintiffs engaged in illegal dumping, the type of conduct expressly contemplated by the pollution exclusions, defendants were justified in denying coverage for that action (see, id.). We granted defendants leave to appeal and plaintiffs leave to cross-appeal. We now modify the order of the Appellate Division by granting defendants’ motions for summary judgment and declaring that defendants have no duty to defend or indemnify plaintiffs in any of the underlying court actions.

Our discussion begins with a review of the subject pollution exclusion clauses. The pollution exclusion contained in the National Union policy states that:

"The Company shall not be liable to make any payment of Loss in connection with any claim * * *
"arising from the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water”.

The North River policy provides that:

"this insurance does not apply * * *
"To any claim arising out of or related to any event or happening, directly or indirectly, caused by or resulting from the dispersal, discharge, escape, release, removal or saturation of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids, gases, or any other material, irritant, contaminant or pollutant in or into the atmosphere, or in, onto, upon or into surface or subsurface:
"(a) soil;
"(b) water or watercourses;
"(c) objects;
"(d) any tangible or intangible matter * * *
"This exclusion applies to any claim by whomever or whatsoever made, including, but not limited to, any public, private or governmental person, concern, body, entity * * * office or corporation.”

Contrary to the Appellate Division’s reading of these clauses, we detect no ambiguity regarding the scope of the pollution exclusions. Where the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law for the court (see, Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172). Construing the terms of these exclusions as required, by giving the words their plain meaning, it is evident that coverage is unavailable for any claim involving the discharge or dispersal of any waste, pollutant, contaminant or irritant regardless of the cause or source of that claim (see, Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311; Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864). Therefore, coverage is unambiguously excluded for claims generated by the dumping of waste materials onto complainants’ properties as asserted in all of the underlying complaints, irrespective of who was responsible for these acts (see, Powers Chemco v Federal Ins. Co., 74 NY2d 910, 911; see also, Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66).

The Appellate Division’s reliance on Continental Cas. Co. v Rapid-American Corp. (80 NY2d 640, 654) as the basis for concluding that the pollution exclusions are only operative when the insured is the actual polluter is misplaced. As pertinent, we determined in Continental (supra), that the subject pollution exclusion clause was "ambiguous with regard to whether the asbestos fibers * * * were discharged into the 'atmosphere’ as contemplated by the exclusion” because it was unclear whether the term "atmosphere” embraced the confined, indoor space where ambient asbestos fibers were inhaled by the complainants (see, id., at 653). Because it was conceivable that complainants’ contact with asbestos may not have been from the "discharge” or "dispersal” of such fibers "into * * * the atmosphere,” but from contact with hands or clothing, the insurer failed to unequivocally demonstrate that the exclusion applied (see, id., at 654). That the insured may not have been the actual polluter responsible for releasing asbestos fibers was not the determinative factor.

In view of the fact that the pollution exclusion clauses operate to preclude coverage for the claims asserted in the underlying complaints, there is no need to consider the relevancy of any other exclusions or disclaimers. The remaining arguments raised on the appeal and cross appeal are devoid of merit.

Accordingly, the order of the Appellate Division should be modified, with costs to defendants as against plaintiffs by granting defendants’ motions for summary judgment and granting judgment declaring that defendants have no duty to defend or indemnify plaintiffs in any of the four subject underlying actions.

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

Order modified, etc.


author: Smith, J.

text:
    [675 NE2d 833, 653 NYS2d 79]
    The People of the State of New York, Appellant, v Gary Maher, Respondent. The People of the State of New York, Appellant, v Vernon Ricks, Respondent. The People of the State of New York, Appellant, v Anthony Mack, Respondent.
    Argued November 19, 1996;
    decided December 19, 1996

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw and John M. Castellano of counsel), for appellant in the first above-entitled action.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A, Forshaw and John M. Castellano of counsel), for appellants in the second and third above-entitled actions.

      Daniel Hsiung, New York City, and Daniel L. Greenberg for respondent in the first above-entitled action.

      William B. Carney, New York City, and Daniel L. Greenberg for respondent in the second above-entitled action.

      Roger L. Stavis, New York City, and Steven R. Kartagener for respondent in the third above-entitled action.
   OPINION OF THE COURT

Smith, J.

In each of these appeals the Appellate Division reversed the conviction of the defendant and remanded the proceedings for a new trial after finding that defendant had not been present at sidebar discussions of potential juror biases and prejudices or the potential juror’s exposure to pretrial publicity. We affirm the order of the Appellate Division in each case.

People v Maher

Defendant Maher was charged with committing two robberies. Early in the voir dire process, after some general questioning had already occurred, the Trial Judge told the assembled venire members,

"I should have said this at the outset. I tell it to you now. If the answer to any one of my questions is yes but you would like to explain privately all you have to do is indicate that and I will invite you to come up to the bench where you can explain to me here in the presence of the two attorneys. That applies to all of my questions and perhaps particularly to the next one” (emphasis added).

During the first round of jury selection, two prospective jurors asked to approach the Bench after the Trial Judge asked if there was "[a]ny reason you can think of why you cannot be [a] fair and impartial juror in this case.” After an off the record discussion with each prospective juror, both candidates were excused. Another candidate asked to approach the Bench during questioning of prospective jurors about conflict they may have had with the law or experience they may have had with crime. The prospective juror returned to the panel after a sidebar conference. The court thereafter excused two persons and the questioning continued. After the prosecutor and defense counsel exercised their challenges, six jurors were sworn in.

During the second round of voir dire, a prospective juror asked to approach the Bench in response to a query by the court as to whether he could fairly judge the case despite his connection, through friends and relatives, to the police department. After an off the record discussion, the prospective juror returned to the panel. The Judge later reiterated the availability of private sidebar conferences, stating, "Were any one of you or any members of your immediate family ever had a conflict with the law. [sic] If the answer is yes and you would like to speak privately I invite you to come up to the bench.” At the conclusion of questioning, the prosecutor and defense counsel exercised six peremptory challenges each, and two additional jurors were sworn.

During the third round of voir dire, three unidentified members of the jury venire asked to approach the Bench for a sidebar conference. A male prospective juror wished to speak in private about his jury service five or six years ago in an armed robbery case. Two other prospective jurors asked for a sidebar in order to discuss conflict immediate family members may have had with the law. All three returned to the panel after the sidebars, and questioning resumed.

After the conclusion of general questioning, the court asked to see counsel and conducted a discussion off the record. Thereafter, the court excused three female members of the venire and continued questioning specific members of the panel. The questioning concluded, and four additional jurors and one alternate were sworn in after the defense exercised two peremptory challenges and the prosecutor exercised one.

After a jury trial, defendant was convicted of robbery in the first degree and sentenced to a 7-to-14-year term of imprisonment. Defendant appealed, and the Appellate Division reversed the conviction and remanded the case for a new trial on the ground that defendant had been improperly excluded from a material stage of his trial. The Appellate Division concluded from the record that several prospective jurors were questioned about possible biases and prejudices outside of defendant’s presence. We affirm.

People v Ricks and People v Mack

Codefendants Ricks and Mack were tried jointly for various crimes arising out of an attempted robbery during which the victim was shot and killed. At the beginning of the voir dire process, the court told the assembled venire, "None of these questions are intended to embarrass you or inquire unnecessarily into your private lives, but if in the event that any of you feel that you prefer to answer a question only in the presence of myself and the attorneys, merely indicate that you wish to approach, and you will be brought before the bench” (emphasis added). The court repeated this statement two more times during the voir dire process.

At various times during voir dire, the court asked whether any of the prospective jurors recalled reading or hearing anything about the case. Eleven jurors responded affirmatively and were separately called to the Bench for off the record discussions. All of these jury candidates were excused after the sidebars concluded.

Two other times, the court asked prospective jurors and counsel to approach the Bench for a sidebar. No mention of either defendant was made during those times. The court also asked a sworn juror to approach the Bench "with counsel.” That juror was excused from service following an off the record discussion.

After the conclusion of voir dire, defendants were tried jointly in front of a jury and each convicted of two counts of second degree murder, two counts of attempted robbery in the first degree, attempted robbery in the second degree and criminal possession of a weapon in the fourth degree. Defendants appealed and the Appellate Division reversed on the ground that the defendants had been improperly excluded from sidebar conferences regarding pretrial publicity. We affirm. Analysis

The People contend that the record in each case was insufficient to determine whether the defendants were excluded from a material stage of trial because it is uncertain from the record whether certain jurors were excused for cause, on consent, or through the exercise of peremptory challenges by the prosecutor.

A defendant has the right to be present at an ancillary proceeding only if it is a material stage of trial (CPL 260.20; People v Favor, 82 NY2d 254, 265; People v Dokes, 79 NY2d 656, 662).

"Under our case law, the jury selection process is an ancillary proceeding — not a ’core’ proceeding critical to the outcome of a criminal trial (People v Sprowal, 84 NY2d 113, 117). Therefore, a defendant’s right to be present at a sidebar conference with a prospective juror exploring possible general or specific bias is governed exclusively by New York statutory law — CPL 260.20, which gives the defendant a right to be ’ "personally present” during the trial of an indictment’ (id.; see, People v Mitchell, 80 NY2d 519, 526-527)” (People v Roman, 88 NY2d 18, 25).

A sidebar interview of a prospective juror which concerns that juror’s bias or hostility is a material stage of trial which defendants are entitled to attend (id., at 26). We have also held that a sidebar conference regarding a potential juror’s exposure to pretrial publicity is a material stage of trial (People v Sloan, 79 NY2d 386). A defendant may, of course, waive the right to attend such conferences.

Initially, defendants seeking reversal on appeal must provide the appellate court with an adequate record for determining whether they were wrongfully excluded from a material stage of trial (see, People v Kinchen, 60 NY2d 772). Once such a record is presented, a violation of the right to be present is established.

However, even where a defendant has been erroneously excluded from a sidebar conference with a prospective juror, the error is not reversible if that potential juror has been excused for cause by the court or as a result of a peremptory challenge by the People (Roman, supra, 88 NY2d, at 28). The rationale is that while a defendant may contribute to jury selection by advising defense counsel on the suitability of a particular juror, any contribution that a defendant may make regarding excusal for cause is purely speculative (id.). Similarly, a defendant would be unable to make any contribution to a prosecutor’s decision to exercise a peremptory challenge. In order for the People to avoid a reversal on these grounds, however, the necessary facts must appear on the record, so that it can be said that the record "negate[s] the possibility that [the defendant] could have provided valuable input on his counsel’s apparently discretionary choice to excuse those venire persons” (People v Feliciano, 88 NY2d 18, 28; see also, People v Favor, supra, 82 NY2d, at 267-268).

The records in these cases support the conclusion of the Appellate Division that each defendant was erroneously excluded from a material stage of his trial. Indeed, in People v Ricks and People v Mack, the prosecutor conceded that "the record in this case tends to support the Appellate Division’s conclusion that defendants were not present at sidebar discussions that might have concerned some of the prospective jurors’ exposure to pretrial publicity.” Since the records in these cases fail to negate the possibility that these defendants could have meaningfully contributed to the sidebar conferences from which they were excluded, such as by demonstrating that the prospective jurors at issue in these appeals were excused for cause, or through the use of peremptory challenges by the prosecutor, the convictions were properly reversed in each case.

Accordingly, the order of the Appellate Division in each case should be affirmed.

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

In each case: Order affirmed.

      . One prospective juror stated that he remembered hearing about the case because the events occurred on his birthday. Another informed the court that he had read about the events in a newspaper. The other prospective jurors either stated generally that they had read about the case or did not make any substantive statements regarding their knowledge in open court.

        . The court stated, "I will now see [the prospective juror]. Counsel, approach please.” The court also stated, ’’You [the prospective juror] may approach. Counsel may approach.”