author: Titone, J.

text:
    [651 NE2d 883, 628 NYS2d 15]
    Joyce Dingle, Appellant, v Prudential Property and Casualty Insurance Company, Respondent.
    Argued March 30, 1995;
    decided May 11, 1995

      POINTS OF COUNSEL

      Russo & Galgano, White Plains (Louis J. Galgano, III, Michael A, Russo and Christopher Riley of counsel), for appellant.

      Shayne, Dachs, Stanisci, Corker & Sauer, Mineola (Jonathan A. Dachs of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

In Love v State of New York (78 NY2d 540), this Court held that, in a bifurcated personal injury action, a successful plaintiff is properly awarded prejudgment interest from the date of the decision establishing liability rather than from the date of the damages verdict. The follow-up issue presented in this case is whether an insurer is liable in a bifurcated trial for prejudgment interest on the entire amount of the judgment against its insured, or only for interest on that portion of the judgment the insurer is obligated to pay under the policy limits. We hold that under current insurance regulation, this Court’s precedent, and public policy, the insurer is only liable for interest on that portion of the judgment it must pay up to the policy limits, unless the contract of insurance contains a more generous provision.

I.

Plaintiff Joyce Dingle was injured in a car accident caused by the negligence of Patricia Virga, a driver insured by defendant Prudential Property and Casualty Insurance Company. After completion of the liability portion of the trial, the jury found Virga 100% responsible for plaintiff’s injuries. Damages were awarded at a separate proceeding completed more than a year after the liability portion of the trial, and, at that time, the final judgment awarding plaintiff $592,672.21 against Virga was entered.

Virga’s automobile insurance policy with defendant had a $100,000 limit. The contract of insurance contained a clause providing that defendant insurer will pay all interest on the full amount of the judgment that accrues between the date of the damages verdict and the date the insurer tenders payment of its portion of the judgment. The agreement is silent, however, as to the insurer’s responsibility for payment of interest accruing between the date liability is determined and the date damages are fixed in a bifurcated trial.

Defendant construed its obligation to pay interest for the period between the liability and damages verdicts as being based only on that portion of the judgment reflecting the policy limits. Accordingly, defendant paid plaintiff the sum of $140,563, which included: (1) $100,000, representing the policy limit of liability; (2) $15,000, representing the interest on $100,000 accruing from the date of the liability verdict to the date of the damages award; (3) $21,485, constituting interest on the entire award from the date of the damage award to the date of tender; and (4) $4,077, representing costs, and interest thereon.

On February 6, 1992, plaintiff commenced this action challenging the second component of the tendered sum above — the amount of interest accruing from the date of the liability verdict to the date of the damages verdict. Plaintiff sought an additional $39,508 from defendant, representing the difference between the interest on the entire judgment of $592,672 and the amount actually tendered for that period.

Supreme Court granted defendant’s motion for summary judgment and declared that defendant had paid plaintiff "all that the law, insurance regulations and policy provisions * * * fairly require.” Following what it termed the "traditional” interpretation of the relevant State insurance regulation, 11 NYCRR 60-1.1 (b), the court concluded that "insurance carriers are required to pay interest only on that portion of a judgment within the policy limit unless the policy contains specifically broader provisions.” The court declared that where there is an excess judgment in a bifurcated trial "the insurer’s responsibility is presently satisfied when interest is paid on the covered amount computed from the date of damages determination to actual payment.” The Appellate Division affirmed on substantially similar reasoning. We granted plaintiff’s motion for leave to appeal, and affirm.

II.

Our point of departure in this case is the pertinent insurance regulation — 11 NYCRR 60-1.1 (b). That section, entitled "Mandatory provisions,” provides that all owner’s automobile liability insurance policies must contain language at least as favorable to the insured as the following: "the insurer, subject to the policy terms shall: * * * pay * * * all interest accruing after entry of judgment until the insurer has paid or tendered or deposited in court such part of such judgment as does not exceed the applicable policy limits.” (Id. [emphasis added].) Any policy language that conflicts with the regulation, or which is less generous to the insured, will be deemed unenforceable and superseded by the regulation. Plaintiff contends that the underscored regulatory language plainly requires insurers to pay "all interest” accruing on the entire judgment from the date that liability is set. We disagree.

The regulation at issue substantially incorporates language which has long been embodied in contracts of insurance. Thus, the customary construction given to that standard contract clause provides guidance in interpreting the similarly worded regulation (Shnarch v Empire Mut. Ins. Co., 144 AD2d 795). Traditionally, the insurer’s responsibility under that clause has been limited to the payment of interest on the sum it is obligated to pay up to the policy limits (Home Indem. Co. v Corie, 206 Misc 720, affd without opn 286 App Div 996; Holubetz v National Fire Ins. Co., 13 AD2d 228; Shnarch v Empire Mut Ins. Co., 144 AD2d 795, supra; 71 NY Jur 2d, Insurance, § 1778, at 161-162). The rationale for limiting the insurer’s interest payments to the amount corresponding to the policy limits derives from the theory that interest is compensation for the use or retention of money belonging to another (71 NY Jur 2d, Insurance, § 1778, at 162; see also, Love v State of New York, 78 NY2d 540, 544, supra). It follows from that theory that the insurer should only be liable for interest on that portion of the judgment it has retained and presumably benefitted from — the amount of its liability. Thus, in light of the nature and function of interest payments, the reference in the policy language to "all interest” has consistently been construed to relate only to interest on the amount the insurer is obligated to pay, since, during the delay in payment, the insured has enjoyed the use of the sum constituting the excess for which the insurer is not liable. Accordingly, we conclude that, in the absence of a more generous insurance contract term, 11 NYCRR 60-1.1 (b) requires an insurer to pay interest on the amount of its obligation up to the policy limits and not on the entire judgment against its insured.

Plaintiff urges this Court to adopt the construction of the regulation reached in Rodriguez v Rodriguez (93 AD2d 748) in which the First Department concluded that the insurer must pay interest on the entire judgment to satisfy 11 NYCRR 60-1.1 (b)’s reference to the insurer’s payment of "all interest.” The generally advanced policy justification for that conclusion, which apparently has been reached in a number of other jurisdictions (see, 8A Appleman, Insurance Law and Practice § 4894.25, at 77-79), is that the insurer should assume those additional costs because it controls the litigation and thus is responsible for the delay in fixing damages and for the consequent running of interest (Rodriguez, 93 AD2d, at 749). We decline to follow that approach.

In Love v State of New York (78 NY2d 540, supra), we discredited the use of such a "fault-based analysis” in determining when the right to prejudgment interest accrues. There we concluded that because interest "is intended to indemnify successful plaintiffs 'for the nonpayment of what is due to them’ * * * and is not meant to punish defendants for delaying the final resolution of the litigation * * * responsibility for the delay should not be the controlling factor in deciding whether interest is to be computed from the date of the liability verdict or, instead, from the date of the verdict on damages” (id., at 544 [citation omitted]). Additionally, as we indicated in Love, connecting the duty to pay interest with the responsibility for delay would only penalize a party for "exercising a legitimate right [to take an interlocutory appeal] ordinarily enjoyed by all litigants” (id., at 545).

Similarly, the assignment of responsibility for controlling the litigation or delaying the damages verdict does not govern who must pay for predamages-judgment interest. Rather, in light of the nature of interest as a component of a plaintiff’s recovery, the controlling inquiry should be who has retained or benefitted from the money belonging to the plaintiff during that period. Where, as here, a damages verdict in excess of the policy limits is entered, the only fair conclusion is to require the insurer to pay plaintiff for use of the portion of the judgment it is responsible for under the policy and to require the insured to repay the plaintiff for use of the money in excess of the policy limits. Thus, the courts below properly concluded that defendant insurer, having tendered the policy limits, prejudgment interest on the policy limit, postjudgment interest on the entire judgment against its insured, and costs plus interest thereon, paid plaintiff all of the money it owed under the contract of insurance, the relevant insurance regulation and this State’s jurisprudence.

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

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

Order affirmed, with costs.

      . The clause specifically states: "After the case is decided, we’ll pay the amount which the Court decides you or anyone else is responsible for, up to the maximum amount shown * * *. We’ll pay any costs you may be responsible for. We’ll also pay all interest on the amount for which the Court judges you or any other insured responsible that builds up between the time the Court decides the amount and the time we pay the amount which we’re obliged to pay” (emphasis added).

      . We note that defendant insurer has agreed by contract provision to pay interest on the entire judgment from the date of the damages verdict to the date it tenders payment — an undertaking that is more generous than that required by 11 NYCRR 60-1.1 (b).


source: Caselaw Access Project

author: ClPARICK, J. Bellacosa, J.

license: Public Domain

text:
    [651 NE2d 886, 628 NYS2d 18]
    Video Aid Corp. et al., Respondents, v Town of Wallkill, Appellant.
    Argued March 29, 1995;
    decided May 11, 1995

      POINTS OF COUNSEL

      Monte J. Rosenstein, Middletown, for appellant.

      Burt J. Blustein, Middletown, for respondents.
   OPINION OF THE COURT

ClPARICK, J.

Plaintiffs remitted $27,000 to defendant in satisfaction of sewer and water tap-in fees due in conjunction with their application for a building permit to proceed with their planned renovation of new business premises in Wallkill. The fees, adopted by defendant in response to mandates imposed by the State and Federal governments to upgrade WallkiU’s sewer and water systems, were subsequently declared unconstitutional and plaintiffs were awarded a judgment in the amount of the fees paid plus interest, costs and disbursements. On this appeal, defendant challenges plaintiffs’ entitlement to the refund based on plaintiffs’ failure to register any protest upon payment of the sewer and water tap-in fees.

On January 12, 1989, defendant adopted Resolution No. 1, imposing a $2,000 tap-in fee for each eight-fixture unit connected to the Town water system, and Resolution No. 2, establishing a $2,500 tap-in fee for each eight-fixture unit connected to the Wallkill sewer system. Each resolution directed that all fees were to be deposited into capital improvement funds respectively earmarked for the water and sewer systems.

Thus, after plaintiffs submitted their application for a building permit together with the $11,000 permit fee on December 11, 1991, they were advised by defendant that no permit would issue until the sewer and water tap-in fees were remitted in accordance with Resolutions Nos. 1 and 2. Following an inquiry to Wallkill’s Building Inspector, plaintiffs determined to remit $27,000 for sewer and water tap-in fees to ensure there would be no delay in the issuance of the building permit and disruption of their proposed expansion plans. Plaintiffs were in the process of expanding their business operations by renovating vacant space adjacent to their present quarters. It is particularly significant that at the time plaintiffs remitted the tap-in fees only the architectural plans for the "build-out” of the additional space had been secured. No dates had yet been fixed by contract for the actual renovation to commence. Plaintiffs assert that it remains uncontroverted that the subject premises were fully connected to Wallkill’s water and sewer systems, and all they sought was an extension of the lines into that portion of the interior they were renovating to install plumbing fixtures. Plaintiffs represent that this work did not require any effort or expense on defendant’s behalf. Yet, without formal protest, plaintiffs remitted the $27,000 fee to defendant by check dated January 8, 1992. Plaintiffs now contend that this payment was coerced, alleging that no work could progress on the premises absent payment of this arbitrary and unreasonable fee.

Plaintiffs instituted this action seeking a judgment declaring Resolutions Nos. 1 and 2 unconstitutional and a refund of moneys paid as an illegal tax under these resolutions. Supreme Court granted plaintiffs’ motion for summary judgment, declaring the resolutions void as unconstitutional and awarding plaintiffs judgment for fees paid under Resolutions Nos. 1 and 2. Supreme Court further denied defendant’s cross motion to dismiss the complaint. The Appellate Division affirmed, holding that Video Aid Corp. involuntarily paid the fees to avoid a threatened interference with the immediate possession of its property (see, Video Aid Corp. v Town of Wallkill, 203 AD2d 554). The Appellate Division was persuaded that this fact together with the prompt commencement of this action challenging the fees demonstrated the involuntariness of plaintiffs’ payment, and that Wallkill would be unjustly enriched if permitted to retain the tap-in fees it improperly extracted from plaintiffs (see, id., at 557). We granted leave to appeal to defendant, and now reverse the order of the Appellate Division to the extent it directed a refund. The issue presented here is whether plaintiffs have established that nonpayment of the tap-in fees would have interfered with their immediate possession of the property, supporting the claim that the $27,000 fee was paid under duress. We conclude that plaintiffs are not entitled to a refund. Nothing in this case compels departure from the established rule that the voluntary payment of a municipal fee that is subsequently nullified is not recoverable.

The settled law is that the payment of a tax or fee cannot be recovered subsequent to the invalidation of the taxing statute or rule, unless the taxpayer can demonstrate that the payment was involuntary (see, City of Rochester v Chiarella, 58 NY2d 316, 323, cert denied sub nom. Quality Packaging Supply Corp. v City of Rochester, 464 US 828; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 424-425; Adrico Realty Corp. v City of New York, 250 NY 29, 32; accord, City of Rochester v Chiarella, 65 NY2d 92, 99, revg 100 AD2d 46). In reality, the payment of a tax or municipal fee is by nature involuntary. Whether a payment is considered involuntary in the context of an action for reimbursement of taxes or fees paid to a governmental entity is a question of intention to be resolved upon consideration of the totality of the circumstances (see, City of Rochester v Chiarella, 58 NY2d, at 325, supra; People ex rel. Wessell, Nickel & Gross v Craig, 236 NY 100, 105).

Payment under express protest is an indication that a tax is not paid voluntarily (see, Mercury Mach. Importing Corp. v City of New York, 3 NY2d, at 424, supra). Where protest has been interposed, the municipality is notified that it may be obliged to refund the taxes and must be prepared to meet that contingency (see, id., at 426). Otherwise, moneys remitted as taxes or fees are applied to authorized public expenditures, and financial provision is not made for refunds. In situations where payment of the tax or fee is made under actual duress or coercion, which is present when payment is necessary to avoid threatened interference with present liberty of person or immediate possession of property, the failure to formally protest will be excused. (See, Mercury Mach. Importing Corp. v City of New York, 3 NY2d, at 425, supra; Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146, 149-150; Adrico Realty Corp. v City of New York, 250 NY, at 32, supra.)

Determinative of the voluntary nature of plaintiffs’ payment of the sewer and water tap-in fees is the absence of any evidence of actual duress and their failure to register any formal protest at the time of payment (cf., People ex rel. Wessell, Nickel & Gross v Craig, 236 NY, at 105, supra [pendency of certiorari proceeding "at least the equivalent of protest”]; Corporate Prop. Investors v Board of Assessors, 153 AD2d 656, 660, appeal dismissed in part, denied in part 75 NY2d 802, affd sub nom. Matter of Bowery Sav. Bank v Board of Assessors, 80 NY2d 961 [protest established by pendency of legal proceeding at time of payment in each year recovery sought]; but see, Conklin v Town of Southampton, 141 AD2d 596, 598 [drastic financial and administrative implications prompted finding that commencement of action on behalf of potentially aggrieved real estate taxpayers did not constitute protest by each proposed class member]). As defendant acknowledged, had plaintiffs simply written "without prejudice” or "under protest” on the check they tendered as payment— which they concede they did not — the involuntary nature of the payment would have been established.

That plaintiffs anticipated disruption of their tight renovation schedule absent prompt payment of the tap-in fees is insufficient to constitute duress or coercion and excuse formal protest (see, Adrico Realty Corp. v City of New York, 250 NY, at 33, supra [taxpayer who remits payment to release property from an illegal hold or lien does so under duress]; Tripler v Mayor of City of N. Y., 125 NY 617, 631; Goldberg v City of New York, 260 App Div 61, affd without opn 285 NY 705). Even if we were to accept the dissent’s proposition that such "interference” with the expansion of an existing business is equivalent to the duress suffered by licensees whose nonpayment of the fee would deprive them of their very livelihood (see, Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d, at 148-149, supra), the record in this case is devoid of any facts supporting plaintiffs’ claim that they would suffer harm as a result of nonpayment of the tap-in fees.

Duress is present in situations where the taxpayer’s only alternative is to submit to the illegal exaction or discontinue its business (see, Five Boro Elec. Contrs. Assn, v City of New York, 12 NY2d, at 149, supra; Mercury Mach. Importing Corp. v City of New York, 3 NY2d, at 425, supra; Boris Leasing Corp. v City of New York, 285 App Div 126, 129, affd for reasons stated below 309 NY 682). The situation presented in Five Boro is illustrative.

For a four-year period, New York City exacted an exorbitant license fee from electricians, which fee was ultimately held unconstitutional as it bore no reasonable relationship to the costs of services involved in issuing the licenses (see, Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d, at 147, supra). Five Boro was the action in which several hundred electricians obtained a judgment to recover the excess payments. While it was undisputed that the license fees were not paid under protest, it was held that the payments were made under duress as a matter of law, thereby excusing protest (see, id., at 148). On appeal to this Court, it was determined that "protest was not required in view of the compulsory nature of the payment * * * [the electricians] were not allowed to operate without licenses, nor could their licenses be renewed except by payment of excessive fees. * * * Undue interference with the conduct of business or occupation through an obstructive use of the licensing power has been held to constitute duress” (id., at 149-150). This contrasts sharply with the situation presented at bar.

Nothing is presented here to show that plaintiffs "were wholly or partly prevented from engaging in business unless the illegal exactions were paid” (id., at 150; see also, Tripler v Mayor of City of N. Y., 125 NY, at 631, supra). There is no evidence of any threat, real or perceived, that the operation of plaintiffs’ business would be impaired if they mounted a challenge to the tap-in fees. Although Video Aid Corp.’s vice-president alleges that their expansion plans would have been jeopardized absent payment of the tap-in fees, there is no proof of this claim, and plaintiffs did not even lodge a complaint that the tap-in fees were onerous until they instituted this action one month after payment was remitted (see, Tripler v Mayor of City of N. Y., 125 NY, at 631, supra; Goldberg v City of New York, 260 App Div 61, supra). Thus, no authentic resistance is evident. To this end, plaintiffs cannot establish that their payment of the sewer and water tap-in fees was involuntary, nor can they demonstrate their situation constitutes an exception to avoid application of the settled rule that a voluntary payment of a tax or fee cannot be recovered.

This record contains no evidence to support the primarily factual determination by the Appellate Division, embraced by the dissent, that Video Aid Corp. would have been prevented from engaging in business absent payment of the tap-in fees or that the payment of such fees was made under duress simply because the payment was a precondition for the issuance of a building permit. Plaintiffs were in the process of planning the expansion of their existing business operations, rendering the conclusion reached by the Appellate Division and the dissent that plaintiffs remitted the fees involuntarily to avoid interference with their possession of the property pure speculation (cf., Buckley v Mayor of City of N. Y., 30 App Div 463, affd without opn 159 NY 558). The dissent argues that the Court’s review of this matter is framed by "supportable findings and inferences,” but Supreme Court made no findings of fact; indeed, it did not even address the question of duress in its opinion. Supreme Court reviewed only those facts necessary to determine the legal question of whether the fees were unconstitutional, and having declared that they were, simply ordered a refund, without any consideration of any facts that might reveal either plaintiffs’ voluntariness or duress. The Appellate Division’s statements on the issue were entirely conclusory.

In sum, a simple payment "under protest” for the taxpayer preserves its challenge and for the municipality alerts it, at the time of receipt, to the uncertainty of those revenues. Short of that simple, unequivocal step — plainly important to governmental fiscal operations — a taxpayer may recover an illegal payment only where the taxpayer establishes that payment was made under duress, meaning more than business or economic inconvenience. Here, plaintiffs failed to make that showing. Plaintiffs were not prevented from possessing or using their property and showed no impairment to their business operations. All plaintiffs showed was that they could not proceed with an intended renovation as they had hoped.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the award of damages to plaintiffs against defendant vacated.

Bellacosa, J.

(dissenting). Concededly and no longer at issue in this case, the $27,000 water sewer tap-in fee paid by Video Aid Corp. to the appellant Town to secure a building permit was unconstitutional, as declared by Supreme Court. The sole issue that divides this Court is whether the Appellate Division order directing the Town to make reimbursement is erroneous. We think it is not.

The Appellate Division applied this Court’s calibrated, fact-specific analysis (see, City of Rochester v Chiarella, 58 NY2d 316, 323-324), and concluded, in affirming Supreme Court, that the payment was made under legal duress (203 AD2d 554, 556-557). Thus, our review of this case is framed by supportable findings and inferences that justify the conclusion that Video Aid’s $27,000 additional, special payment was unlawfully exacted by the Town. We respectfully dissent from this Court’s reversal of a supportable and proper result, and we would affirm.

We first draw attention to the fact that in a variety of contexts, this Court has demonstrated an appropriate intolerance for allowing governmental entities to exact unwarranted payments from licensees or permittees, whether in exchange for favorable treatment (City of New York v 17 Vista Assocs., 84 NY2d 299), or in exchange for granting that to which the permittee was entitled absent the illegally charged fee (see, e.g., Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146; Buckley v Mayor of City of N. Y., 30 App Div 463, affd without opn 159 NY 558). The most recent precedent, albeit in a different but relevant fact pattern, is City of New York v 17 Vista Assocs. (84 NY2d 299, supra). We unanimously held void as against public policy an agreement entered into between the plaintiff New York City and the defendant builder in which, for a $1.5 million payment, the City would grant an accelerated and favorable determination as to the single-room occupancy multiple dwelling status of the affected building (id., at 306). The reasoning is instructive:

"The [municipality] had a duty to render its determinations * * * based solely on a review of the relevant criteria. The law should not be applied more favorably * * * based on whether or not a party is able to pay” (84 NY2d 299, 306, supra).

This general principle — that municipalities cannot shirk or creatively manipulate their responsibilities to render independent determinations and that they must grant permits based on merit and not just for enhanced revenue generation — is equally applicable in the setting of the instant case. Notably, no one any longer quarrels that the fee in question is and was unconstitutional. The defendant Town’s attorney, in his own affidavit supporting the Town’s cross motion to dismiss Video’s complaint, stated that the fee schedule was designed to "spread[ ] [t]he costs * * * necessitated * * * by the $12,000,000.00 sewer plant mandated by the DEC,” and that "[t]he obvious costs of paying the outstanding bond on the $12,000,000.00 sewer plant * * * clearly required that some equitable [as the Town decided to spread it] system be imposed.” The rationale of 17 Vista Assocs. and the other cases is cogent and instructive support for affirmance in this case. Moreover, no sufficient reason is advanced to countermand the Appellate Division’s rationale and conclusion that Video Aid’s water/sewer fee payment was made involuntarily and under legal duress.

The rules regarding the "voluntary versus involuntary/legal duress” determination are well established. In City of Rochester v Chiarella (58 NY2d 316, supra), this Court reaffirmed and rearticulated the long-standing principles governing a citizen’s right to a refund of tax, licensing or similar payments that are unconstitutionally "exacted” by a governmental entity. Failure to register a formal, simultaneous protest when making the payment is excusable when a payment "is made under duress or coercion” (City of Rochester v Chiarella, supra, at 323). Illustrative duress rising to the level of involuntariness may be found in situations when a payment is made "to avoid threatened interference with present liberty of person or immediate possession of property” (City of Rochester v Chiarella, supra, at 323, citing Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 425; Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146, 150, supra). In City of Rochester, the Court reflected the nuances in applying the test as follows:

"Recognizing that all governmental assessments are, in a sense, paid involuntarily, the determination is primarily one of degree, turning upon numerous factors, including * * * 'the likelihood that authentic resistance will be asserted, the unavoidable drastic impact of the taxes or fees on the claimant, and the impact on the public fisc, if revenues raised long ago and expended are subject to reimbursement’ (Paramount Film Distr. Corp. v State of New York, 30 NY2d 415, 420, cert denied 414 US 829)” (City of Rochester v Chiarella, 58 NY2d 316, 323-324, supra [emphasis added]).

Consistent with long-standing precedents, the Court engaged in a fact-specific analysis looking to the "totality of the circumstances surrounding [the] * * * payment” (id., at 325).

Contrary to the appellant Town’s claim here, adopted by the majority, City of Rochester and this Court’s related precedents do not compel a finding, as a matter of law and at this level of judicial review, that the water/sewer fee payment is nonreimbursable (see, City of Rochester v Chiarella, supra; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 419-422, supra; Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146, 149-150, supra; American Dist. Tel. Co. v City of New York, 213 App Div 578, affd without opn 243 NY 565). In determining whether a particular payment is involuntary and, hence, reimbursable, this Court has prescribed inquiry into specific factors: (1) whether the fees were reasonable regulatory measures or revenue-raising devices (Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 420, supra); (2) whether the taxing governmental authority was enriched by the payment (id., at 421-422); and (3) whether the governmental authority had already distributed the funds (id., at 422). Thus, for example, in Paramount, this Court examined all the circumstances and held that claimants could not recover motion picture licensing fees after the statutes authorizing the fees were nullified. The Court declared that (1) the payment was not involuntary or legally coerced, (2) the government was not unjustly enriched, (3) the fees merely defrayed the cost of the licensing program and did not produce revenue, and (4) the collected funds had been disbursed long ago.

The instant case, as resolved by the majority, stands in stark contrast to Paramount (30 NY2d 415, supra), with each of the Paramount factors favoring reimbursement to Video Aid as a matter of fact and, therefore, surely not the opposite result as a matter of law. Here, the Town asserted that the resolution promulgating the fees at issue was designed expressly to raise the revenue to offset the $12 million bond it had issued to upgrade its Town-wide water and sewer facilities. Thus, it was not a mere fee for a licensing/regulatory program, as in Paramount. Additionally, here, Video Aid Corp. sued almost immediately after paying the fee in return for the issuance of the building permit. This reflected an "authentic resistance” as public, certain and cogent, if not more so, than payment with a "protest” notation placed on a check (City of Rochester v Chiarella, 58 NY2d 316, 323-324, supra). To hold that simply writing "under protest” on the payment instrument constitutes "authentic resistance,” but that plaintiff actually commencing suit almost immediately after payment fails (see, majority opn, at 667, 668, 669, 670) is perplexing, especially since the suit was successful. Given the promptness of the lawsuit in the instant case, concerns regarding the potential for imposing crushing burdens on a municipality to reimburse levies and fees wrongfully paid by citizens but already disbursed by the municipality are not real or cognizable. Thus, Paramount supports affirmance here.

Video Aid Corp.’s position is further buttressed by this Court’s decision in Five Boro Elec. Contrs. Assn. v City of New York (12 NY2d 146, supra) and some Appellate Division decisions affirmed by this Court (see, American Dist. Tel. Co. v City of New York, 213 App Div 578, affd without opn 243 NY 565, supra; Buckley v Mayor of City of N. Y., 30 App Div 463, affd without opn 159 NY 558, supra). In Five Boro, electricians were held entitled to recover excess licensing fees exacted by the municipality, although the exorbitant fees had been paid without immediate or simultaneous protest (12 NY2d 146, 149, supra). Again, focusing on the particular facts of the case, this Court reasoned that failure to pay the fee would have resulted in precluding the claimants from earning a livelihood (id., at 149-150). The Court noted that "[ú]ndue interference with the conduct of a business or occupation through an obstructive use of the licensing power ha[d] been held to constitute duress” (id., at 150, citing American Dist. Tel. Co. v City of New York, 213 App Div 578, affd without opn 243 NY 565, supra). The Court likened this form of legal duress to the "business compulsion” rule, where recovery was permitted to persons or corporations "wholly or partly prevented from engaging in business unless the illegal exactions were paid” (Five Boro Elec. Contrs. Assn. v City of New York, supra, at 150 [emphasis added]). In concluding that "[n]othing is presented here to show that plaintiffs 'were wholly or partly prevented from engaging in business’ ” (majority opn, at 669), the majority chooses to ignore (1) the evidence in the record that the permit would not issue unless the fee was paid; and (2) the practical reality that, without the permit, the vacant space could not be used for conducting Video’s expanded business properly.

Notwithstanding the majority’s pinched view of the record (see, majority opn, at 669), the Appellate Division had evidentiary support for its finding of involuntariness. A letter of transmittal from Liscum-McCormack-Vanvoorhis, an architectural firm located in Poughkeepsie, to Video’s vice-president demonstrates that the architect had prepared a building permit application, along with complete plans for the expansion, and that the plans were submitted to the Town of Wallkill Building Inspector. The cover letter from the architect (1) gives notice to the Town that work could commence no later than the first week of January 1992; and (2) that the enclosed expansion plans had been sealed by the architect’s office and an engineer. It further stated that all inquiries by the Building Inspector should be funnelled back to the architect. This constitutes ample direct and inferential evidence for the Appellate Division to find an existing, ongoing, and well-defined contractual relationship between Video Aid and the architectural/engineering personnel responsible for the expansion. Necessarily related thereto, legal commitments in the ordinary course of municipal business no doubt had to be included as predicates to even filing a formal permit application and having it considered at all by the Building Inspector and Town. Towns are not in the business or habit of rendering advisory rulings, any more than courts are. Further, the affidavit of Video Aid’s vice-president in support of Video Aid’s motion for summary judgment explicitly states that (1) "plans and specifications [had been] prepared by the architect”; (2) "[architects were hired as well as engineers and designers to plan the build-out of the space”; (3) it was made "absolutely clear * * * that without the payment of the water and sewer hookup fees, no Building Permit would be issued”; (4) the expansion "needed to occur on a fairly tight timetable”; and (5) "the pressures of commitments made for this space made it necessary to move forward.” The refusal to pay the water/sewer fee and consequent withholding of the permit translated into a bold and substantial interference with Video’s ability to conduct "in part” its business in a manner otherwise lawfully permissible (Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146, 150, supra).

While the majority asserts that Video Aid did not supply evidence of duress or harm that would be occasioned by nonpayment of the unconstitutional fee (majority opn, at 668, 669, 670), that claim is cogently contradicted by the record, as we have demonstrated. Video showed that it (1) was in the process of closing on the sale of the premises, (2) had stringent time constraints, (3) had contracted with architects and engineers to plan and supervise the expansion, (4) had submitted completed plans for approval to the Town, (5) had commitments for the space, and (6) needed the area to conduct its business properly. As in Buckley (30 App Div 463, affd 159 NY 558, supra), every delay would have necessarily resulted in escalating pecuniary injury, both directly due to lost profits and, indirectly, based on architect and engineering fees and commitments attendant to the expansion.

The fact that Video Aid Corp. paid tribute for issuance of permits for an expansion of its business, as opposed to obtaining a license to open a business, does not diminish the coercive effect of the governmental action and the involuntary nature of this particular payment of an unconstitutional fee. Existing principles and precedents, in our view, support this conclusion. If they do not, they ought to.

Further, other well-established precedents also support our view that reimbursement of the illegal exaction is proper here. In American Dist. Tel. Co. v City of New York (213 App Div 578, supra), affirmed by this Court without opinion (243 NY 565), the holding was that a plaintiff, who entered a franchise agreement with the City under threat that, otherwise, plaintiff could not continue its business, could recover the fees paid for the franchise (213 App Div 578, 583-585, supra). Noting the circumstances — large sums of money required to be paid by plaintiff and the valuable property right at stake — the Court there determined that it was "not probable that this plaintiff voluntarily acquiesced in the demand of the city” (id., at 583).

In Buckley v Mayor of City of N. Y. (30 App Div 463, supra), also affirmed by this Court, without opinion (159 NY 558), the holding was that recovery of fees was warranted where the property owner, engaged in building an apartment house, was threatened that his workers would be arrested unless a building permit fee was paid (30 App Div 463, 464-465, supra). The reasoning is instructive:

"The defendant’s threats were certainly threats of actionable acts whereby [plaintiffs] estate would be lessened. Every day that was thus lost to him was a serious pecuniary injury. * * * It was the threatened exercise of power which [plaintiff] believed they possessed that was likely to take money out of his pocket every day that it continued. Interest on his capital would be running, and increment from rents would be postponed” (id., at 466).

The Court focused not only on the threat to arrest (which the Town claims is critical), however, but also on the loss to be visited on the plaintiff (which the Town and majority largely ignore). The Court concluded that, notwithstanding the equitable and legal remedies available to the plaintiff there, the time it would have taken to pursue such actions to fruition "might have * * * ruined [plaintiff] before even partial redress could [have been] afforded him” (30 App Div 463, 467, supra).

In the instant case, the Town’s failure to grant Video Aid the building permit held hostage the licensee’s business expansion into the vacant space and rendered it an unattainable goal, unless an unconstitutional water/sewer tap-in fee was paid. Thus, at least, it "partly prevented [Video] from engaging in business” (see, Five Boro, supra, at 150). Notwithstanding the $11,000 already paid by Video Aid for the building permit — which payment entitled it to the permit — the Town forced Video to pay an additional $27,000 to do what Video should already have been entitled to do. Given the large sum exacted and the valuable right at stake, namely, expanding its business and conducting that business properly, it is "not probable” Video "voluntarily” made the payment (see, American Dist. Tel. Co. v City of New York, 213 App Div 578, 583, a(fd without opn 243 NY 565, supra). Indeed, based on a reasonable application of the rubrics we have articulated, the Appellate Division rightly concluded that the payment was legally coerced under the circumstances of this case.

The concededly unconstitutional fee, an undisguised revenue-raising measure, exacted as a precondition to granting an otherwise authorized and already qualified and paid-for building permit, should result in the only appropriate and proportionate remedy: reimbursement to Video of the unconstitutional fee. Under the circumstances of this case, we disapprove allowing the Town (1) to "appl[y] [the law] more favorably * * * based on whether or not [Video] [was] able to pay” (City of New York v 17 Vista Assocs., 84 NY2d 299, 306, supra); (2) to permit itself to become unjustly enriched at Video Aid’s expense (see, Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421-422, supra); and (3) to allow the declaration of now-conceded unconstitutionality of the fee to be rendered a Pyrrhic victory for the payor.

In our view, most respectfully, application of all the relevant factors and legal principles warrants affirming the Appellate Division’s order requiring the Town of Wallkill to reimburse Video Aid Corp. for the $27,000 unconstitutional fee it paid for issuance of the permit.

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

Order, insofar as appealed from, reversed, etc.

      . We note that, on this appeal, defendant does not challenge that part of the Appellate Division order which held the resolutions unconstitutional.

      . We do not agree with the dissent’s interpretation of the holding in City of New York v 17 Vista Assocs. (84 NY2d 299). That case involved an illegal agreement between the City of New York and a developer that arranged to pay the City a sum of money in exchange for expedited and favorable classification of a building defendant sought to purchase, notwithstanding the City’s prior unfavorable determination on the building’s classification. It is in this context that we stated that "[t]he law should not be applied more favorably * * * based on whether or not a party is able to pay” (City of New York v 17 Vista Assocs., 84 NY2d, at 306, supra), a circumstance not evident at bar.


author: Levine, J. Smith, J.

text:
    [651 NE2d 895, 628 NYS2d 27]
    The People of the State of New York, Appellant, v Raymond Ramos, Respondent. The People of the State of New York, Appellant, v Cary Fernandez, Respondent. The People of the State of New York, Appellant, v Ariel Pena, Respondent.
    Argued February 14, 1995;
    decided May 2, 1995

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), for appellant in the three above-entitled actions.

      Richard M. Weinstein, New York City, for respondent in the first above-entitled action.

      Allen H. Saperstein, Bronx, and Peter D. Coddington for Robert T. Johnson, District Attorney of Bronx County, amicus curiae in the three above-entitled actions.

      Jan Hoth-Uzzo and Philip L. Weinstein, New York City, for The Legal Aid Society, amicus curiae in the three above-entitled actions.
   OPINION OF THE COURT

Levine, J.

The issues on these appeals are whether in a criminal appeal taken by the People, due process mandates that the defendant be personally served with the People’s brief and, if not, whether the Appellate Division, First Department, may adopt such a requirement pursuant to its rule-making authority. We hold that due process does not require that the defendant be personally served with the People’s appellate briefs and that the Appellate Division acted outside its rule-making authority in adopting such a rule. Consequently, we reverse the Appellate Division orders dismissing each of the People’s appeals, reinstate those appeals, and remit the matters to that Court.

People v Cary Fernandez

Defendant Cary Fernandez was indicted on July 25, 1991, for conspiracy in the second degree. The indictment charged that Fernandez offered to hire Lloyd Pennington and Otis Edwards to kill Muradiya Ibralmovic. On September 19, 1991, defense counsel, an attorney employed by the Legal Aid Society, filed a motion to dismiss the indictment pursuant to CPL 30.30. Supreme Court granted the motion and dismissed the indictment on the ground that Fernandez was denied her statutory right to a speedy trial.

The People filed a notice of appeal on October 29, 1991, and served the notice by mail upon the Society’s Criminal Appeals Bureau. In November 1992, the People filed their brief and appendix in the Appellate Division and served the documents on the Society. The Society had no contact with Fernandez since the indictment was dismissed, however, and had no knowledge of her whereabouts. Moreover, Fernandez had not expressly requested or consented to the Society’s representation of her on appeal.

In August 1993, the Society filed a brief for defendant Fernandez arguing, among other things, that the People’s appeal should be dismissed because the People’s brief had not been personally served on defendant, thereby depriving defendant of due process and adequate notice of the proceedings against her. In November 1993, the Appellate Division, citing its decision in People v DeLaRosa (192 AD2d 403, lv granted 81 NY2d 1082, appeal withdrawn 82 NY2d 750), dismissed the appeal because the defendant was not personally served with the People’s brief (198 AD2d 96).

People v Ariel Pena

Defendant Ariel Pena was indicted on September 24, 1987, for criminal possession of a weapon in the third degree. At the time of his alleged crime Pena was a suspended correction officer. On January 8, 1988, Pena’s attorney moved to dismiss the indictment on the ground that despite defendant’s suspension, he enjoyed a peace officer’s exemption from weapons offenses pursuant to Penal Law § 265.20. Supreme Court dismissed the indictment, relying on its recent decision of People v Epperson (137 Misc 2d 146).

The People filed a notice of appeal in February 1988, and served the notice of appeal on defendant Pena’s trial attorney. In September 1992, the People served its appellate brief on both trial counsel and defendant by mail.

Effective February 1, 1993, the Appellate Division amended its rules concerning appeals by the People in criminal cases, and adopted subdivision (f) of 22 NYCRR 600.8. In November 1993, the Appellate Division dismissed the People’s appeal for failure to comply with 22 NYCRR 600.8 (f), with leave to reinstate upon proof of service of the appellant’s brief upon defendant by March 2,1994 (198 AD2d 101).

People v Raymond Ramos

Defendant Raymond Ramos was indicted on November 30, 1990, for criminal sale of a controlled substance in the third degree and other related crimes. Defendant’s attorney moved to suppress evidence seized from defendant at the time of his arrest. Supreme Court granted defendant’s motion on a finding that probable cause for arrest was lacking.

The People filed a notice of appeal on March 29, 1991, and mailed the notice of appeal to defendant’s trial counsel. After obtaining an order from the Appellate Division enlarging their time to appeal, the People filed their appellate papers on April 1, 1993. The People also served their brief and notice of issue on defendant’s trial counsel by hand, and mailed the papers to defendant’s last known address. One day later, the People sent additional copies of their brief to defendant’s last known address by certified mail. That mailing was returned, stamped "addressee unknown,” in May 1993.

Meanwhile, defendant Ramos’s trial counsel moved to have an appellate attorney assigned to the case. In June 1993, the Appellate Division appointed Richard M. Weinstein as defendant’s appellate counsel and Mr. Weinstein subsequently filed a brief on defendant’s behalf. In November 1993, however, the Appellate Division dismissed the People’s appeal for failure to comply with 22 NYCRR 600.8 (f) (198 AD2d 197).

By separate motions, the People sought leave to appeal from each of the Appellate Division orders of dismissal. By separate orders, individual Judges of this Court granted the People’s motions.

L

The first issue, raised by the appeal in People v Fernandez, is whether due process requires the People to personally serve their appellate brief on defendant before they may exercise their statutory right to appeal. We hold unanimously that it does not.

The Constitutions of both the United States and this State require that an individual, who is the subject of a criminal prosecution, be accorded procedural due process, including adequate notice of the proceedings against him or her (US Const 5th, 6th, 14th Amends; NY Const, art I, § 6). The notice due process requires is notice reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections (Mullane v Central Hanover Trust Co., 339 US 306, 314; Silverstein v Minkin, 49 NY2d 260, 263). Personal notice is always adequate, but it is not indispensable in all the circumstances (Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423). Due process requires only that the notice be appropriate to the nature of the case without creating impossible or impractical obstacles to concluding the proceeding (id.).

In the case of a People’s appeal, CPL 460.10 (1) (c) provides for service within 30 days of a copy of a notice of appeal "upon the defendant or upon the attorney who last appeared for him in the court in which the order being appealed was entered.” Amicus and counsel for defendant Ramos do not argue here that service of the notice of the appeal upon the defendant’s trial counsel pursuant to CPL 460.10 (1) (c) is inadequate to apprise the defendant of the pendency of the People’s appeal. Rather, it is argued that due process entitles the defendant to the additional step of personal service of the People’s appellate briefs. It is contended that given the often long delay between the service of the notice of appeal and actual perfection, if at all, of the People’s appeal, the People’s appellate briefs must be personally served upon defendant so as to provide notice that the appeal is going forward and to protect defendant’s rights on appeal. We disagree.

Determining whether additional process is due in any particular proceeding requires balancing the interests of the State against the individual interest sought to be protected (Mathews v Eldridge, 424 US 319, 334; see also, Congregation Yetev Lev D’Satmar, 59 NY2d, at 423, supra). Identification of what process is due requires consideration of three distinct factors: (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail (Mathews, supra, at 335). Applying this analysis, we conclude that due process does not require the additional process imposed by the Appellate Division.

Concededly, defendants have important interests at stake on a People’s appeal. Given the consequences of a reversal and the possible resumption of criminal proceedings, the defendant certainly has an interest in being informed that the People’s appeal is pending and continuing. Moreover, as correctly noted by the Appellate Division in People v DeLaRosa (192 AD2d 403, supra), other rights requiring protection upon the People’s appeal include the right to appellate counsel of the defendant’s own choice, the right to appear pro se on the appeal, and the right to seek appointment of counsel upon proof of indigency (see, People v Bachert, 69 NY2d 593, 596; see also, People v Vasquez, 70 NY2d 1, 4). As also noted in DeLaRosa, a risk of the deprivation of a defendant’s rights upon the People’s appeal exists when, as here, the defendant’s whereabouts are unknown at the time the People finally perfect their appeal.

The value of the additional procedural safeguard imposed by the Appellate Division, and urged by amicus and appellate counsel here, in protecting a defendant’s rights on appeal is limited. The parties do not challenge the adequacy of CPL 460.10 (1) (c) notice, but seek the additional notice that would be afforded by the personal service of the People’s appellate brief upon defendant. However, personal delivery of the People’s brief to the vast majority of defendants, unfamiliar with the intricacies of criminal appellate practice, would only be of limited value in protecting defendants’ rights absent further consultation with and advice from counsel. We unanimously agree that due process does not require such a result.

Balanced against the defendant’s interest in being made personally aware of the perfection of the People’s appeal is the People’s statutory right to seek appellate review in criminal cases (see generally, CPL art 450). The statutory right necessarily implicates the People’s interest in overturning erroneous determinations and prosecuting criminal cases to their ultimate conclusion. The additional requirement that the People personally serve their appellate brief upon the defendant imposes a significant burden on the People and, as illustrated here, may constitute an insurmountable obstacle to concluding the appeal.

As part of the balance required by a due process analysis we note that a defendant’s interests may be more effectively protected by methods far less burdensome than requiring personal service of the People’s appellate brief and, failing that, dismissal of the appeal. CPL 460.10 (1) (c) reflects the Legislature’s policy determination to extend trial counsel’s agency until service of the People’s notice of appeal. It is implicit in this determination that trial counsel would advise the defendant of the existence and consequences of the People’s right to appeal and the defendant’s rights upon such an appeal including the right to retain or, if indigent, be assigned appellate counsel. Such a procedure provides far more comprehensive effective protection of the defendant’s interests than the more onerous requirement of personal service of the People’s appellate brief. It also places a minimally burdensome duty of protecting defendant’s interests upon the parties most familiar with the defendant, the defendant’s habits and whereabouts, and the defendant’s defense, that is, defense counsel who obtained the favorable disposition appealed by the People and the defendant him or herself..

Due process also does not require dismissal of the People’s appeal in the event the procedures described above are not followed. In the context of an indigent defendant’s right to appeal a conviction, we have held that the defendant’s right could not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal (see, People v Montgomery, 24 NY2d 130, 132-133). Consequently, we held that defendant was entitled to a hearing to determine whether he was informed of his right to appeal and, if not, to resentencing so that his time to appeal might run anew (id., at 133-134). Similarly, the People’s right to appeal cannot be completely precluded by counsel’s failure to advise defendant of his or her rights upon the People’s appeal. Proceedings less drastic than the dismissal of the People’s appeal are available to remedy such a failure and ensure that defendant’s rights are adequately protected (cf., People v Bachert, 69 NY2d 593, supra).

In any event, once the People have complied with the statutory notice requirements under CPL 460.10, defendant is on notice of the pendency of the appeal. Due process does not require that the People subsequently personally serve their appellate papers upon the defendant before the appeal may be perfected. Thus, the Appellate Division order in People v Fernandez should be reversed.

II.

The second issue, raised by the appeals in People v Pena and People v Ramos, is whether the Appellate Division can nevertheless require the People to personally serve their appellate brief on the defendant pursuant to its rule-making authority. We hold that the Appellate Division lacks the authority to impose such a rule.

The respondents cite two sources for the Appellate Division’s authority to impose section 600.8 (f): NY Constitution, article VI, § 30 and CPL 460.70 (1). The section of the State Constitution provides:

“Nothing herein contained shall prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules.”

CPL 460.70 (1) states:

“the mode of and time for perfecting an appeal which has been taken to an intermediate appellate court from a judgment, sentence or order of a criminal court are determined by rules of the appellate division of the department in which such appellate court is located. Among the matters to be determined by such court rules are the times when the appeal must be noticed for and brought to argument, the content and form of the records and briefs to be served and filed, and the time when such records and briefs must be served and filed.”

Undeniably, these sources of broad judicial rule-making authority do not afford carte blanche to courts in promulgating regulations. The Constitution only permits court rule making “consistent with the general practice and procedure as provided by statute or general rules” (NY Const, art VI, § 30). In McQuigan v Delaware, Lackawanna & W. R. R. Co. (129 NY 50) we limited judicial rule-making governing procedures as follows:

“The doctrine that courts have an inherent jurisdiction to mould the proceedings to meet new conditions and exigencies, is true, but in a limited sense. They cannot, under cover of procedure or to accomplish justice in a particular case, invade recognized rights of person or property” (id., at 55).

Thus, a court may not significantly affect the legal relationship between litigating parties through the exercise of its rule-making authority (see, Gair v Peck, 6 NY2d 97, 104). Furthermore, no court rule can enlarge or abridge rights conferred by statute (see, Broome County Farmers’ Fire Relief Assn. v New York State Elec. & Gas Corp., 239 App Div 304, 306, affd 264 NY 614), and this bars the imposition of additional procedural hurdles that impair statutory remedies (see, Chase Watch Corp. v Heins, 284 NY 129; cf., Matter of Brusco v Braun, 84 NY2d 674, 682).

In providing for an absolute right of personal service of the People’s brief, section 600.8 (f) is clearly not "consistent with the general practice and procedure as provided by statute or general rules” (NY Const, art VI, §30). Indeed, the rule is completely out of step with every other statute or rule concerning service of appellate papers. In criminal cases, a notice of appeal may be served on trial counsel alone (CPL 460.10 [1] [c]; [2], [3] [b]). In the case of an expedited criminal appeal, service of the brief upon trial counsel alone suffices (22 NYCRR 105.3, 105.4). Service upon an "adverse party” of a civil appellate brief is satisfied by service on counsel (CPLR 2103 [b]; 5530 [a]). CPL 470.60 (2), prescribing the procedure for the People’s motion to dismiss defendant’s appeal, authorizes service on a defendant "by ordinary mail at his last known place of residence * * * and similar notice must be served upon the attorney, if any, who last appeared for him.” And this Court, as well as the other three Departments of the Appellate Division, does not require the People to serve their brief personally upon an unrepresented defendant in order to perfect their appeal.

The Appellate Division rule also undermines the rights of the People conferred by statute. The Legislature has not only afforded the People a right of appeal but also has given substance to that right by providing for service of the notice of appeal on trial counsel alone, thereby apprising defendant of the pendency of the appeal. Surely the People, by errors or omissions over which they have some ability to control, can subsequently forfeit the right to appeal, and the Appellate Division can make rules for the processing and perfection of appeals that, if disregarded by the People, result in the People’s forfeiture of their right. But the rule in issue functions differently: it permits the defendant, although already on notice of appeal, to forfeit, or defeat, the People’s statutory right by conditioning the People’s ability to comply with the rule on the conduct of the defendant, conduct over which the People have absolutely no ability to control.

CPL 460.70 (1) may well vest the Appellate Division with power to provide for the method of service of appellate papers under the general authority to prescribe "the mode of and time for perfecting an appeal” (id.), in addition to the express statutory power to determine by rule matters such as "the content and form of the records and briefs to be served and filed, and the time [for service thereof]” (id.). The rule under consideration here, however, has never been justified on the ground that it is merely "an integral part of the [Appellate Division’s] legitimate case management control”, as the dissent suggests (dissenting opn, at 691). Rather, as Justice Ross candidly explained in People v DeLaRosa (supra), and as the briefs of amicus and appellate counsel for defendant Ramos assert, section 600.8 (f) embodies the Appellate Division’s perception that it was necessary to implement a defendant’s due process right to personal notice of the People’s appeal. This is the only purpose of the rule identified by respondents.

That section 600.8 (f) was intended as a substantive jurisdictional prerequisite to the exercise of the People’s statutory right to appeal is demonstrated by the fact that, in People v Pena, the Court applied the rule to dismiss an appeal that had been perfected some four months before the rule’s effective date, and in accordance with the Court’s then applicable perfection regulations. And in People v Fernandez, the People’s appeal, perfected three months before the rule’s effective date, was dismissed solely under the authority of People v DeLaRosa (supra).

Thus, section 600.8 (f) is inconsistent with general practice, clearly alters the balance of the respective legal positions of the parties to the appeal (Gair v Peck, supra), and significantly jeopardizes the People’s statutory right to appeal (McQuigan v Delaware, Lackawanna, & W. R. R. Co., supra; Broome County Farmers’ Fire Relief Assn., supra). As such, it was beyond the Appellate Division’s constitutional and statutory rule-making authority. For that reason, the Court below could not dismiss the People’s appeals in People v Pena and People v Ramos on the basis of the People’s failure to comply with section 600.8 (f).

Accordingly, in each case, the order of the Appellate Division should be reversed, the appeal to that Court reinstated, and the case remitted to that Court for prosecution of the appeal.

Smith, J.

(dissenting in part). We dissent in People v Ramos and vote to affirm the order of the Appellate Division dismissing the appeal in that case for failure to comply with the Rules of the Appellate Division, First Department. The issue is whether the Appellate Division has the authority, by rule, to require personal service on defendants of appellate briefs. Since the rule was not in effect when the People filed their briefs in People v Fernandez and People v Pena we concur on that narrow procedural ground that those orders should be reversed.

Under the New York Constitution, New York courts are invested with the power to regulate their practice and procedures. The Legislature has further implemented the particularized authority of the Appellate Division to promulgate rules for criminal appeals by CPL 460.70. It provides in pertinent part:

"the mode of and time for perfecting an appeal which has been taken to an intermediate appellate court from a judgment, sentence or order of a criminal court are determined by rules of the appellate division of the department in which such appellate court is located. Among the matters to be determined by such court rules are the times when the appeal must be noticed for and brought to argument, the content and form of the records and briefs to be served and filed, and the time when such records and briefs must be served and filed” (CPL 460.70 [1]; emphasis added).

Pursuant to its authority, effective February 1, 1993, the Appellate Division, First Department, amended its procedural rules and regulations regarding the method of service for appeals taken by the People. Section 600.8 (f) of the Rules of the Court (22 NYCRR 600.8 [f]) at issue herein provides:

"Appeals Taken by the People. An appeal taken by the People must be perfected by serving a copy of the appellant’s brief upon respondent’s appellate attorney or upon respondent personally, if he or she is not represented by appellate counsel, within one year of the filing of the notice of appeal.”

The People argue that the Appellate Division exceeded its rule-making power and that the amendment created a new substantive right for defendants. We reject that argument. While the rule does affect both parties’ progress to the first appellate stage of a matter, it also serves as an integral part of the court’s legitimate case management control and processing. The rule does not, in and of itself, diminish or eliminate the People’s right to appeal. Section 600.8 (f) provides for the method for service of the People’s brief and is essentially procedural and, therefore, appropriately within the individual Appellate Division’s rule-making powers. We conclude that the Appellate Division possessed the power to promulgate the challenged procedural rule.

Moreover, the fact that CPL 460.70 (1) does not itself specifically require service upon the defendant is not dispositive of the rule-making authority question at issue. "Express authorization” is neither necessary nor the focus of the dispositive analysis. Rather, it is the constitutional and legislative implementary rule-making authority of courts and the interstitial and implied specific authority derived from CPL 460.70 which invested the Appellate Division with power to promulgate the rule at issue. The specific reference to the content and form of briefs and time when briefs and records must be served and filed are "[a]mong the matters to be determined by such court rules” (CPL 460.70 [1]). Thus, a rule concerning service upon a defendant or the attorney is not precluded by the rule but is also among the matters to be determined by the rule-making court.

A substitution by this Court of its preferred form of advisement or notification to defendants-respondents at the Appellate Division level is not appropriate. This Court should not interpose its view of a better or more adequate set of rules. Our policy and administrative role is more limited and not in issue here (NY Const, art VI, § 30). Moreover, it is not up to this Court to choose what it considers to be the best among different Appellate Division rules, even if we agree that the challenged rule is unnecessarily onerous.

Turning to the specific cases before us, defendant Cary Fernandez was indicted on July 25, 1991, for conspiracy in the second degree, a class B felony. Defendant Fernandez was represented by the Legal Aid Society. Upon motion by defense counsel, the indictment was dismissed pursuant to CPL 30.30. The People filed a timely notice of appeal on October 29, 1991 and also served it on the Legal Aid Society Criminal Appeals Bureau. The People filed their brief and appendix in the Appellate Division, First Department, in November 1992, and served those documents as well on the Criminal Appeals Bureau. The Legal Aid Society filed a brief on defendant’s behalf in August 1993, after the effective date of the rule in issue, as was its practice in People’s appeals where Legal Aid represented the defendant at the trial level, defending the trial court’s decision. Additionally, counsel argued that the appeal should be dismissed because the People did not serve their brief on defendant personally. Defendant Fernandez has been at liberty since the indictment against her was dismissed.

The Appellate Division dismissed the appeal on November 16, 1993, because the defendant was not personally served with the People’s brief. Although the People’s notice of appeal was timely filed, the Court found that the Legal Aid Society had no contact with defendant since the indictment was dismissed, was unaware of her whereabouts, and defendant neither requested nor consented to representation by Legal Aid on this appeal. The Court further found no indication that defendant was aware the People had the right to appeal from the order dismissing her indictment, that she had the right to be represented by counsel of her choice or to have counsel assigned if she were unable to afford one. The First Department’s rule requiring service of appellate briefs on defendant’s appellate counsel or defendant personally, if defendant has none, in appeals by the People in criminal cases was effective after the People filed their notice of appeal and after the People filed their brief and appendix in the Appellate Division.

Defendant Ariel Pena was indicted on September 24, 1987, for criminal possession of a weapon in the third degree, a class D felony. At the time of his arrest defendant Pena was a suspended correction officer. A motion was made by defense counsel, on January 8, 1988, to dismiss the indictment based on the fact that defendant Pena was exempt from weapons offenses by virtue of his "peace officer” status, and it was granted by the trial court. The People timely filed their notice of appeal on or about February 3, 1988, and served that notice on defense counsel by mail. The People perfected their appeal in September 1992, by filing a brief in the Appellate Division and serving that brief on defendant’s trial counsel. The People also mailed a copy of the brief to defendant. Defendant Pena has been at liberty since the indictment against him was dismissed.

On November 16, 1993, the Appellate Division dismissed the People’s appeal because the People failed to comply with the Rules of the Appellate Division, First Department (22 NYCRR 600.8 [f]), since they had not served their brief on defendant personally. The First Department’s rule was similarly not effective until after the People filed their notice of appeal and filed their brief and appendix in the Appellate Division.

Defendant Raymond Ramos was indicted on November 30, 1990, for criminal sale of a controlled substance in the third degree, a class B felony, and for related crimes. The trial court suppressed the physical evidence on the grounds that there was insufficient probable cause to arrest defendant Ramos. The People timely filed a notice of appeal on March 29, 1991 and mailed same to trial counsel. The People obtained an order from the Appellate Division, dated March 18, 1993, enlarging their time to appeal. They filed their appellate papers on April 1, 1993. The People sent additional copies of their brief to defendant’s last known address, which was returned stamped "addressee unknown”, in May 1993. The Appellate Division dismissed the People’s appeal in November 1993, for failure to comply with 22 NYCRR 600.8 (f). The First Department’s rule was effective before the People filed their notice of appeal and their brief and appendix in the Appellate Division.

Accordingly, we would affirm the order of the Appellate Division in People v Ramos. The orders in People v Fernandez and People v Pena should be reversed and the Appellate Division directed to hear the appeals.

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

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

      . The Appellate Division, First Department, rule at issue provides: "An appeal taken by the People must be perfected by serving a copy of the appellant’s brief upon respondent’s appellate attorney or upon the respondent personally, if he or she is not represented by appellate counsel, within one year of the filing of the notice of appeal” (22 NYCRR 600.8 [¶] [eff Feb. 1, 1993]).

      . On September 22, 1994, this Court, on its own motion, assigned Richard M. Weinstein to represent defendant Ramos, without prejudice to any rights and arguments sought to be advanced or preserved on defendant’s behalf, and granted Legal Aid Society amicus curiae status in all three appeals. Thus, while defendants Fernandez and Pena are not technically represented on these appeals, arguments are being advanced on their behalf by the Society. Similarly to defendant Ramos, the arguments being advanced by amicus on Fernandez and Pena’s behalf are without prejudice to any rights and arguments sought to be advanced or preserved on their behalf.

      . See, 22 NYCRR 500.5 (d); 500.10 (Court of Appeals); 670.8 (a); 670.12 (a); 671.3 (d), (e), (f) (additional duties of defense counsel in the trial court) (Second Department); 800.14 (b), (h) (3) (i) (expedited appeals) (Third Department); 1000.5 (b), (c), (g) (1) (Fourth Department); 105.3 (expedited appeals) (Rules of the Chief Administrator).

       NY Constitution, article VI, § 30 provides, "Nothing herein contained shall prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules.”


author: Smith, J.

text:
    [651 NE2d 904, 628 NYS2d 36]
    In the Matter of Booker T. Kitchings et al., Appellants, v Herman L. Jenkins, as Personnel Director of the City of New York, et al., Respondents.
    Argued March 29, 1995;
    decided May 9, 1995

      POINTS OF COUNSEL

      Goodstein & West, New Rochelle (Robert David Goodstein and Eileen West of counsel), for appellants.

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth S. Natrella and Pamela Seider Dolgow of counsel), for Herman L. Jenkins, respondent.

      Daniel Topper, Brooklyn, Albert C. Cosenza and Richard Dreyfus for Alan Kiepper, respondent.
   OPINION OF THE COURT

Smith, J.

The primary issue here is whether Civil Service Law §§ 52 and 63 required a competitive examination before respondents were advanced from the position of Transit Property Protection Supervisor Level I to Transit Property Protection Supervisor Level II. Because the Appellate Division properly held that the assignment to the duties at either of two levels within a permanent civil service title is reasonable and is neither a promotion nor a demotion, we affirm.

In this CPLR article 78 proceeding, petitioners are New York City Transit Authority employees assigned as Transit Property Protection Supervisors Level I who were eligible for but were not assigned to the position of Transit Property Protection Supervisor Level II. The individual respondents were assigned to the position Transit Property Protection Supervisor Level II without taking an additional civil service examination. Petitioners seek an order which voids and nullifies alleged promotions of the individual respondents. Petitioners seek further to require the Director of Personnel of the City of New York to develop, administer and grade a competitive examination for the position of Transit Property Protection Supervisor Level II pursuant to Civil Service Law § 52.

By a Department of Personnel resolution dated December 31, 1986, the title Transit Property Protection Supervisor (TPPS) was created, incorporating two assignment levels into one title. To qualify for a position under the TPPS title, an individual must complete and pass a competitive promotional civil service examination. All petitioners and respondents have attained the TPPS title. Movement from Level I to Level II within the TPPS title requires no written examination. Assignment between levels is at the discretion of the Transit Authority, depending upon its needs.

Finding that the Transit Authority and the City neither exceeded the bounds of the law nor violated the petitioners’ rights, Supreme Court dismissed the petition. The court found that assignments to positions with higher salary differentials within the same grade are not novel, do not violate any statute and do not necessarily constitute a promotion.

The Appellate Division affirmed, citing Lenihan v City of New York (85 AD2d 562, affd on other grounds 58 NY2d 679), for the proposition that a competitive examination is not required for the reassignment of a TPPS from a Level I to a Level II position. Finding no new skills or tasks involved in the duties at either level, and finding further that neither a promotion nor a demotion was involved, the Court concluded that at the discretion of the Transit Authority, an individual properly appointed to the permanent civil service title of Transit Property Protection Supervisor may be assigned duties at either level.

Petitioners contend that the classification of the position "Line Supervisor” (Transit Property Protection Agent) to "Transit Property Protection Supervisor,” creating two levels (I and II) within the position with a corresponding increase in salary, effectively created two grades within one title. Petitioners maintain further that an individual "assigned” to TPPS Level II would in reality receive a promotion, requiring examination under the Civil Service Law and Public Authorities Law § 1210.

The respondents allege that reassignment from Level I to Level II is not a promotion because it does not involve a change of title, only a change of level, does not require the application of any new skills or new tasks different from the Level I assignment, but rather involves only a greater degree of responsibility and oversight by the individual at Level II.

The Transit Authority’s decision to reassign individuals from TPPS Level I to TPPS Level II was reasonable and within its discretion. Although the primary duties and degree of skill required for Level I and Level II are essentially the same, the Transit Authority has stated that the decision to assign an individual to Level II encompasses an appraisal of abilities and temperaments not easily quantifiable for purposes of an objective written examination. The Transit Authority properly exercised its discretion to assign some TPPS personnel from Level I to Level II, based on its ability to observe individuals at work.

We hold that individuals within the grade of Transit Property Protection Supervisor may be assigned to duties at either Level I or Level II and such assignment between levels constitutes neither a promotion nor a demotion under the Civil Service Law.

New York Constitution, article V, § 6 and Public Authorities Law § 1210 require promotion in the civil service be made according to merit and fitness by competitive examination. Civil Service Law § 52 (9) is not violated by the assignment from TPPS Level I to TPPS Level II because of the salary differential. The salary range encompasses assignment within both levels and does not exceed the salary limit fixed for the grade. Further, assignment between levels is not movement outside the grade and, accordingly, not a promotion within the meaning of Civil Service Law § 52 (9).

The position of TPPS requires the successful completion of a competitive civil service examination. One exam evaluates the competency and tests the basic knowledge and skill required for both TPPS Level I and Level II. The difference in the positions appears to be the requirement at Level II of the assumption of more responsibility and accountability accompanied by greater compensation. The reassignment or consolidation of assignments under a single title requiring completion of one single written competitive examination to be promoted to the title but no additional examinations to move within the title is termed "broadbanding” and has been held permissible by this Court (see, Matter of Sanger v Greene, 269 NY 33; Matter of Green v Lang, 18 NY2d 437; Lenihan v City of New York, 85 AD2d 562, affd on other grounds 58 NY2d 679, supra; Engel v City of New York, NYU, Apr. 5, 1977, at 10, col 5, affd as mod on other grounds 66 AD2d 715, affd for reasons stated in App Div mem 50 NY2d 861).

In Matter of Green v Lang (supra) this Court upheld the City of New York’s reclassification of clerical employees into a single title from a classification which had divided the title into several narrower ones. Under a former title before the reclassification, the City possessed the flexibility to assign, upgrade and downgrade employees within the wide duty and salary boundaries. The Court additionally recognized that public policy allowed latitude to administrative officers to assign duties and fix salaries within a class broadly achieved by competitive examination (18 NY2d 437, 440-443).

Consistent with the holding herein, this Court in Matter of Sanger v Greene (supra), indicated that while a transfer from one position within a grade to another in the same grade with more important duties and with larger salary is commonly regarded as a promotion in lay terms, it is not the statutory meaning of the term (269 NY 33, 41-42).

Further, in Engel v City of New York (supra), the City’s Managerial Plan, which established the managerial title of administrative engineer with a number of assignment levels with salary differentials consistent with the difficulty of work involved in each assignment was upheld by the Appellate Division as well as by this Court. The plaintiffs argued that the City’s plan was a "mere subterfuge for promotions based on criteria other than merit,” and that assignments to positions with higher salary differentials within the grade were promotions. Supreme Court rejected the allegation and ruled that the change of assignment within the grade is a "horizontal movement within the grade” (id., at 10, col 6). The Appellate Division held that the City’s Managerial Plan, "which allows for specific assignments within a grade to be left to the discretion of the department head, is neither novel nor violative of statute” (id., 66 AD2d, at 715).

Moreover, we are unpersuaded by petitioners’ contention that because respondents at Level II were required to serve a probationary period, their reassignment was a promotion under Civil Service Law § 63. That section requires an initial probationary period for every original appointment to a position in a competitive class and after every interdepartmental promotion from one department to another department before an individual attains permanent status. Both petitioners and respondents herein were already permanent employees within the meaning of Civil Service Law § 63. The initial period after an assignment to Level II during which the Transit Authority referred to employees as probationary did not constitute a second probationary period within the meaning of the Civil Service Law. The statutory probationary period was served when they became Level I employees. Although the Civil Service Law requires a period of probation corresponding with a promotion or original appointment, contrary to petitioner’s argument, that the Transit Authority imposed a period of probation in connection with the reassignment to TPPS Level II, does not necessarily mean that a promotion was involved. Further, individuals assigned to TPPS Level II may, at the discretion of the Transit Authority, be reassigned to TPPS Level I.

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

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

Order affirmed, with costs.

       Civil Service Law § 52 (9) provides: "9. Increase in salary as a promotion. For the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder, beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion” (emphasis added).


author: Bellacosa, J.

text:
    [651 NE2d 908, 628 NYS2d 40]
    Tina LaBello, as Parent and Natural Guardian of Donald LaBello, an Infant, Appellant, v Albany Medical Center Hospital et al., Respondents.
    Argued May 1, 1995;
    decided June 7, 1995

      POINTS OF COUNSEL

      Michaels and Bell, P. C., Auburn (John V. Bell of counsel), for appellant.

      Maynard, O’Connor, Smith, Catalinotto & D’Agostino, Albany (Arete Sprio and Christine Kirwin Krackeler of counsel), for respondents.
   OPINION OF THE COURT

Bellacosa, J.

Plaintiff mother and guardian, Tina LaBello, on behalf of Donald LaBello, age 12, sues the Albany Medical Center Hospital and others for injuries allegedly inflicted in November 1982. The case turns on the accrual date for a medical malpractice claim predicated on prenatal injuries allegedly negligently caused by defendants. The issue, as particularized and applied, is whether this infant’s cause of action accrued when the alleged negligent act or omission occurred, or, rather, on the date he was born.

The Appellate Division, in a split decision, reversed Supreme Court and held that the governing event for accrual is the "act, omission or complained of failure,” as explicitly prescribed in CPLR 214-a. Supreme Court had granted plaintiff’s motion to strike defendants’ Statute of Limitations defenses, but the Appellate Division’s reversal denied that motion and certified to us the question whether it erred.

We answer the Appellate Division’s question in the affirmative and, thus, reverse its order and reinstate the decision of Supreme Court. We hold that an infant plaintiff’s medical malpractice cause of action, premised on alleged injurious acts or omissions occurring prior to birth, accrues on the earliest date the injured infant plaintiff could juridically assert the claim and sue for relief, that is, the date of being born alive.

This medical malpractice action emanates from prenatal care rendered to the infant plaintiff’s mother between November 9, 1982 and November 11, 1982. Defendants allegedly failed to assess the significance of an ultrasound report and an amniocentesis test, and permitted the mother to continue the pregnancy beyond full term. Donald LaBello was born on November 30, 1982, with severe and permanent injuries.

This action was started on November 23, 1992, slightly over 10 years after the asserted negligence, but just under 10 years from the date of birth. Defendants’ answer included two affirmative defenses under the Statute of Limitations (CPLR 214-a, 208). Supreme Court granted plaintiff’s motion to strike the affirmative defenses. The court struck the CPLR 214-a affirmative defense, reasoning that accrual occurred on the date of plaintiff’s birth, since "prior to his birth * * * an action could not have been maintained on his behalf.” Further, the court found that on November 30, 1982, the date of birth and, hence, the date on which the infant could first legally commence an action, the infancy disability toll inured to his protection and benefit. Thus, under CPLR 208, the plaintiff was required to commence his action within 10 years of accrual, namely, by November 30, 1992. Supreme Court, therefore, held that the action, commenced on November 23, 1992, was timely, and, consequently, it also dismissed defendants’ CPLR 208 affirmative defense.

The Appellate Division reversed, with two Justices dissenting, and denied plaintiff’s motion, finding that accrual struck as of the time of the alleged negligent act or omission and that the inability to sue until birth was irrelevant (200 AD2d 299, 302). The dissenting Justices would have affirmed Supreme Court’s ruling based on the general tort principle that "no action can accrue until the plaintiff has a legal right to relief’ (id., at 302).

We conclude that a cause of action for medical malpractice premised on faulty prenatal care and consequent injuries accrues at live birth. Our policy determination in this regard is derived from statutory interpretation and harmonization. It rests on this Court’s well-settled principles that (1) an infant plaintiff has no right of action unless born alive (Endresz v Friedberg, 24 NY2d 478, 486; see, Woods v Lancet, 303 NY 349, 353, 357); (2) liability for in útero injuries does not exist unless and until there is a live birth (see, Endresz v Friedberg, supra, at 486); and (3) the "Statute of Limitations [can] not run until there is a legal right to relief’ (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94). Additionally, our determination is supported by the language of CPLR 214-a and the otherwise anomalous deprivation or diminution of the infancy disability tolling period (CPLR 208) that would ensue.

Our reasoning and result develop from Woods v Lancet (303 NY 349, supra) and Endresz v Friedberg (24 NY2d 478, supra). Woods recognized, for the first time, a cause of action on behalf of a later-born child for injuries sustained in útero resulting from a tort committed during pregnancy (303 NY 349, 351, supra). The Court carefully delineated the distinction between recognizing legal rights of an unborn fetus and a "viable foetus, later born,” "capable of being delivered and of remaining alive, separate from its mother” (id., at 357; see, id., at 353). The holding centered on "prepartum injuries to such viable children” (id., at 357). We stated that "a child viable but in útero, if injured by tort, should, when born, be allowed to sue” (id., at 353 [emphasis added]).

Endresz v Friedberg (24 NY2d 478, supra) further circumscribed the limited reach of Woods by addressing the legal rights and juridical identity of unborns (id., at 485-486). Endresz decided against a stillborn-delivered fetus being legally recognized for purposes of a wrongful death action based on injuries inflicted in útero (id, at 481-482). The Court distinguished Woods on the natural, definitive, dividing line of a live birth of a child (id, at 483; see also, Matter of Peabody [Chase Manhattan Bank — Holtzmann], 5 NY2d 541, 547). The Endresz Court further explicated the "live birth” concept:

"Translated into tort law, this means that there is but a 'conditional prospective liability * * * created when an unborn child * * * is injured’ through the wrongful act of the defendant, and such liability attaches only upon fulfillment of the condition that the child be born alive. (Keyes v. Construction Serv., 340 Mass. 633, 636.)” (Endresz v Friedberg, 24 NY2d 478, 485-486, supra [emphasis added].)

Notwithstanding this precedential landscape, defendants argue that the impediment to a legally cognizable assertion of a cause of action until birth is irrelevant to accrual of the claim. Thus, legal distinction between accrual of a cause of action and the right to sue on, or the very existence of, that cause of action is asserted and, indeed, divided the rulings of the courts below and the Appellate Division itself. Our precedents, on careful analysis, do not support such a distinction between " 'hav[ing] a cause of action’ ” and " 'hav[ing] the right to sue’ ” (see, Jacobus v Colgate, 217 NY 235, 241). Moreover, we have acknowledged that accrual cannot occur until the claim becomes "enforceable” (see, Kronos, Inc. v AVX Corp., 81 NY2d 90, 94, supra). Thus, we conclude that the proffered distinction cannot carry the weight of the consequential legal difference defendant would have us accord it.

In Jacobus v Colgate (217 NY 235, 241, supra), we explored the nature and substance of a "cause of action” in this expression: To fix this plaintiff’s cause of action as accruing before the infant acquired the recognized legal capacity to sue is not only anomalous, but also out of harmony with these applicable precedents. Since the right to sue is indistinguishable from the very existence of plaintiff’s cause of action (Jacobus v Colgate, 217 NY 235, 241, supra), the defendants’ reasoning would illogically push accrual back before the cause of action itself comes into being.

" 'A cause of action is the right to prosecute an action with effect’ (Patterson v. Patterson, 59 N. Y. 574, 578; People ex rel. Pells v. Supervisors of Ulster Co., 65 N. Y. 300, 308). It is not possible for one at the same time to have a cause of action and not to have the right to sue’ (Walters v. City of Ottawa, 240 Ill. 259, 263)” (emphasis added).

This result also runs afoul of our most recent precedential guidance that (1) the "Statute of Limitations does not run until there is a legal right to relief’; (2) "accrual occurs when the claim becomes enforceable”; and (3) a tort is enforceable when all its elements can be truthfully alleged in a complaint (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94, supra).

Defendants would reject application of the Kronos reasoning because: first, CPLR 214-a expresses accrual of medical malpractice claims as of the time of the negligent act or omission, a statutory explication not operative in Kronos; and, second, in any event, being born alive is not an "element” of the medical malpractice tort, as unascertainable damages is in Kronos (see, id., at 94).

This argument is unavailing. CPLR 214-a does not encompass and did not contemplate the circumstance at issue. This case presents one of those interstices between statutory and common-law precedential lines of authority. To be sure, CPLR 214-a states the accrual-upon-act-or-omission rule and admits of only two exceptions — continuous treatment and foreign object (CPLR 214-a). We do not, by our ruling today, create a new exception. Rather, we take the statute on its own terms and apply it to this unenvisaged circumstance.

The statute expresses and presumes physical existence and juridical capacity to sue (see, CPLR 214-a [stating "action * * * based upon the discovery of a foreign object in the body of the patient” (emphasis added); continuous treatment "shall not include examinations undertaken at the request of the patient” (emphasis added)]). CPLR 214-a simply does not cover accrual for nonjuridical, inchoate plaintiffs. Thus, this Court needs to fill the gap by traditional interpretation and common-law development and application.

Unavailing, too, is defendants’ proposed alternative distinction of Kronos by claiming that an element of the tort claim is not in question here (see, Kronos, Inc. v A VX Corp., 81 NY2d 90, 94, supra). To be frank, this plaintiff’s claim was more fundamentally unenforceable — until he was born alive — than the Kronos impediment. Indisputably, plaintiff could not have enforced his claim prior to his birth, because neither he nor anyone on his behalf had any cognizable status in a court of law to sue. Indeed, defendants’ entirely contingent exposure for prepartum acts is based on an inchoate responsibility only. Their potential liability is purely prospective and subject to the condition subsequent of Donald LaBello’s live birth (Endresz v Friedberg, 24 NY2d 478, 485-486, supra; see, Woods v Lancet, 303 NY 349, 353, 356-357, supra). Moreover, implicit in the Kronos rationale, which links accrual to the time when all elements of the tort can be truthfully and enforceably alleged in the complaint (81 NY2d 90, 94, supra), is that accrual cannot occur until the injured party is legally entitled to issue the complaint. Here, at the time the alleged malpractice was committed, plaintiff could not have alleged all the elements of the tort in the complaint — the Kronos standard— since at that time (1) no liability existed, and (2) plaintiff, having no legal existence, could not have legally uttered the complaint.

CPLR 208 also supports our resolution of this case and issue. CPLR 208 provides in relevant part:

"If a person entitled to commence an action is under a disability because of infancy * * * at the time the cause of action accrues * * * the time within which the action must be commenced shall be extended” (emphasis added).

If accrual occurs before birth, as defendants argue, they alternatively add that the infancy toll would not apply at all. Prior to birth, the allegedly injured fetus would not be legally recognized, nor "entitled to commence an action.” Thus, defendants reason that no infancy toll is available, because no disability existed "at the time the cause of action accrue[d],” given that no infant was in being at that time. The result would engender a strange twist of fate, cancelling CPLR 208’s infancy toll for prepartum injured plaintiffs who are born alive. This argument should not succeed as a matter of sound policy and statutory interpretation. Therefore, we conclude that the Legislature intended for the infancy toll to be applicable and fully available in circumstances such as are presented in the instant matter, as of the time of live birth.

We agree with Supreme Court that the incapacity to sue, because of a plaintiff’s lack of legal identity and a defendant’s freedom from legally cognizable liability, is not just some limitation on the right to bring a lawsuit. It logically and realistically bears on the decision of this Court to fix the right accrual date. When the plaintiff person came to be, so did the fairest and most certain date for measuring a definitive accrual event. That also grants the right to relief and reasonable repose, consistent with this Court’s precedential building blocks of related authority and helpful guidance.

Accordingly, the order of the Appellate Division should be reversed, the certified question answered in the affirmative, and the Supreme Court order granting plaintiffs motion to strike defendants’ third and fourth affirmative defenses reinstated, with costs.

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

Order reversed, with costs, plaintiffs motion to strike the third and fourth affirmative defenses granted and certified question answered in the affirmative.