author: Bellacosa, J.

text:
    [666 NE2d 528, 643 NYS2d 935]
    Chris Poslock et al., Appellants, v Teachers’ Retirement Board of Teachers’ Retirement System et al., Defendants, and Sandie Nowak et al., Respondents.
    Submitted March 28, 1996;
    decided April 25, 1996

      POINTS OF COUNSEL

      Bradley B. Davis, New York City, for appellants.
    I. CPLR 4519 is not applicable to any portion of the New York City Teachers’ Retirement System death benefit. (Ward v New York Life Ins. Co., 225 NY 314; Matter of Barasch, 267 App Div 830; Salinas v Salinas, 187 Misc 509, 271 App Div 917; Agluzzi v Aluzzo, 286 App Div 399; Matter of McCulloch, 263 NY 408; Matter of Nicol, 3 Misc 2d 898.) II. There is sufficient evidence in the record to sustain the finding of the trial court and jury regardless of the applicability of CPLR 4519. (Young v Strong, 118 AD2d 974; Dependable Lists v Malek, 98 AD2d 679; Sirico v Cotto, 67 Misc 2d 636.) III. CPLR 4519 was in any event waived by the testimony of respondent Nowak as well as by cross-examination. (Nigro v Benjamin, 155 AD2d 872; Kings County Trust Co. v Hyams, 242 NY 405; Matter of Smith, 84 AD2d 664.) IV. Appellants were not given a meaningful opportunity to waive their right to death benefits prior to testimony. (Bechard v Eisinger, 105 AD2d 939; Matter of Lefft, 44 NY2d 915.) V. CPLR 4519 is unconstitutional depriviation of due process of law, and equal protection of the law. (Hadley v Clabeau, 140 Misc 2d 994, 161 AD2d 1141; Holcomb v Holcomb, 95 NY 316; Matter of Wood, 52 NY2d 139; Matter of Dunbar, 139 Misc 2d 955; People v Colozzo, 54 Misc 2d 687, 32 AD2d 927; Matter of Dembrosky v New York State Employees’ Retirement Sys., 145 AD2d 707.)

      Gallagher Gosseen & Faller, Garden City (Michael J. Crowley and Robert A. Faller of counsel), for respondents.
    I. The Court below correctly interpreted CPLR 4519, the "Dead Man’s Statute”. (Apple Corps v Adirondack Group, 124 Misc 2d 351; Ward v New York Life Ins. Co., 225 NY 314.) II. The testimony ruled incompetent by the Court below by reason of the "Dead Man’s Statute” was also inadmissible as hearsay. (People v Caviness, 38 NY2d 227; Gates v Bowers, 169 NY 14; Matter of Berlin, 91 Misc 2d 666; Matter of Pangborn, 196 Misc 298; Matter of Putnam, 257 NY 140.) III. The other points raised by appellants are without merit.
   OPINION OF THE COURT

Bellacosa, J.

This case involves the evidentiary prohibition now found in CPLR 4519, commonly referred to as the "Dead Man’s Statute.” The issue is whether conversations, between a decedent and parties contesting rights to decedent’s retirement benefits, fall within an exception to this testimonial bar that relates solely to life insurance proceeds (see, Ward v New York Life Ins. Co., 225 NY 314).

The dispute concerns lump-sum benefits, payable on decedent Drew Poslock’s death, under a retirement-pension plan that included a life insurance component. The Appellate Division held that the decedent school teacher’s retirement benefits were different from the proceeds of typical life insurance policies and that, therefore, testimony from survivors about the conversations and transactions between the interested plaintiffs-parties and decedent Poslock were foreclosed by CPLR 4519. We agree and affirm the Appellate Division’s order.

Drew Poslock, a teacher for 20 years in the New York City public school system, died of cancer at the end of May 1990, at the age of 45. Under Poslock’s membership in the New York City Teachers’ Retirement System, his designated beneficiary was entitled to receive a lump-sum payment of his accumulated retirement benefits. Records of the Teachers’ Retirement System reveal that Poslock filed two beneficiary designations. In 1977, he named his former companion, plaintiff Edward Dunne, and in early May 1990, he substituted defendant Sandie Nowak. At the time of his death, Poslock and Nowak co-owned a cooperative apartment in which they resided.

The action seeking recovery of the retirement proceeds centers on an alleged third beneficiary designation claimed to have been executed and filed in late May 1990 at or about the time of Poslock’s death. It purportedly divides shares of the gross retirement proceeds among several friends and family members (all plaintiffs here), as well as defendant Nowak and her son, defendant Alexander Nowak.

The question of law presented on this appeal is the admissibility of testimony from Dunne and decedent’s brother and mother, Chris Poslock and Beryl Pakosh, who are also plaintiffs, concerning the third beneficiary designation. The trial court allowed the testimony based on the life-insurance-proceeds exception recognized in Ward v New York Life Ins. Co. (225 NY 314, supra). The witnesses, over a defense objection under CPLR 4519, related transactions and conversations with the decedent shortly before his death. The trial court ruled that "the cases basically state the retirement system is similar to an insurance program, and that you take benefits upon the death.”

By the testimony of the three plaintiffs-witnesses, the plaintiffs persuaded the jury that Drew Poslock did in fact execute and file a third beneficiary form. Essentially, Dunne testified that his former companion told him shortly before his death that he wished to leave his share of the cooperative apartment to Nowak and to divide his retirement benefits among his family and friends, including Nowak. To that end, Dunne testified that he obtained a Designation of Beneficiary form and filled it out according to Poslock’s request. He then called a notary public. The notary testified at trial that he witnessed Poslock’s signing of three copies of the form. Dunne added that he mailed the completed form to the Teachers’ Retirement System "return receipt requested.” Though a post office receipt was introduced at the trial, the Teachers’ Retirement System reflects no record of this crucial document. As to the other two copies, Dunne testified that he lost his copy and that he gave one to defendant Nowak, which she denied in her own testimony.

In addition to drafting and having Poslock fill out the beneficiary form, Dunne testified that he also drafted a new will for him. That will, which left the shares of the apartment to Nowak, was admitted to probate and is not involved in this controversy. The total retirement benefits at issue amounted to $214,637.93, including approximately $50,000 of term life insurance. Decedent contributed $11,904.05 to the system during his lifetime.

The two other witnesses at issue, Chris Poslock and Pakosh, corroborated the essential features of Dunne’s testimony. Poslock testified that about a week and a half before his brother’s death, the two men spoke on the telephone and decedent expressed his desire to divide his pension benefits among numerous friends and family, including all the plaintiffs and Nowak and her son. Pakosh testified that shortly before her son’s death, he said to her, in substance, "I have a retirement fund that has quite a bit of money in there and everybody is going to get a share, all the family.”

The jury returned a special verdict for the plaintiffs, giving effect to the third beneficiary designation. Supreme Court rendered judgment in accordance with the special verdict, directing the Teachers’ Retirement System to distribute the benefits in accordance with the document as described by Dunne.

The Appellate Division unanimously modified and directed that Nowak receive the retirement proceeds, except for the $50,000 in term life insurance. The Court held that the Ward exception to CPLR 4519 was not operative and distinguished it on the ground that the statute’s testimonial prohibition applied to pension and retirement benefits, because they belonged to Poslock during his lifetime. The Court thus ruled the testimony inadmissible as to the retirement benefits, but allowed it with respect to the life insurance portion of the total proceeds. This Court granted the plaintiffs leave to appeal and we now affirm.

CPLR 4519 disqualifies parties interested in litigation from testifying about personal transactions or communications with deceased or mentally ill persons (Prince, Richardson on Evidence § 6-121, at 325 [Farrell 11th ed 1995]). CPLR 4519 provides in relevant part:

"Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person or the committee of a mentally ill person, or a person deriving his title or interest from, through or under a deceased person or mentally ill person, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or mentally ill person.”

The purpose of the rule is "to protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court” (Matter of Wood, 52 NY2d 139, 144).

The three interested plaintiffs-witnesses here, Dunne, Chris Poslock and Pakosh, concede that they are interested parties whose testimony falls initially within CPLR 4519. They argue, as they did successfully at Supreme Court, however, that the exception of Ward v New York Life Ins. Co. (225 NY 314, supra) should allow their testimony to stand and operate as to the entire retirement proceeds. Ward trumps the statute as to testimony from interested parties only with respect to "property from a third person which never belonged to the deceased and which in fact did not come into existence until his death” (id., at 319-320). Plaintiffs claim that pension and retirement benefits should also be swept into this life-insurance-proceeds exception and its rationale.

In Ward, this Court narrowly bypassed the predecessor statutory prohibition (see, former Code Civ Pro § 829). The linchpin of the Court’s holding was the language in former Code of Civil Procedure § 829 (now CPLR 4519), that the statute only applied when the persons against whom the testimony was being offered "derived their 'title or interest from, through or under a deceased person’ ” (Ward v New York Life Ins. Co., supra, at 319, quoting former Code Civ Pro § 829). To solve the dilemma there, the Court examined the nature of those life insurance proceeds. It determined that they did not come "from, through or under” the deceased person, because "[t]he great body of authority makes it plain * * * that when section 829 speaks of deriving title or interest from, through or under a deceased person it contemplates property or an interest which belonged to the deceased in his lifetime and the title to which has passed by assignment or otherwise through him to the party who is protected by the section” (id., at 319-320 [emphasis added]). The proceeds of a life insurance policy, the Court declared, "never belonged to the deceased and * * * did not come into existence until his death” (id., at 320).

Ward itself, decided in 1919, has stood the test of time, common-law developments and legislative change. It remains, however, a narrow exception to a general statutory principle. The question to be resolved by this appeal, then, is to what extent the rationale of Ward may be extended to pension or retirement proceeds. Stated even more pointedly, we are asked whether such benefits, when paid as a lump-sum benefit upon an owner’s death, nevertheless "belonged to the deceased in his lifetime” (id., at 319).

We agree with the Appellate Division and the argument of the defendants here that Ward was "decided on the peculiar facts there presented” (Duncan v Clarke, 308 NY 282, 285; see also, Baumel v Travelers Ins. Co., 179 F Supp 88, 90 [ED NY] ["It would seem the Ward ruling is limited to the state of facts therein”]). It should not be extended to cases such as this one, involving pension and retirement rights and proceeds.

As correctly analyzed by the Appellate Division, Poslock’s assets in his vested retirement plan belonged to him during his lifetime and were sufficiently manageable by him in ways that are significantly distinct from the life insurance assets in Ward. Nor did they merely come into existence on his death. During his lifetime, Poslock had the option to direct where his contributions would be invested, not just to whom they would be paid on his death (Administrative Code of City of NY § 13-568). He was eligible at any time to borrow at a favorable rate of interest up to 75% of the combined sum of the funds invested in a variable annuity savings fund and the amount of his accumulated deductions (Administrative Code § 13-540). Had he terminated or resigned his membership in the retirement system, he would have been "paid forthwith the full amount of [his] accumulated deductions” (Administrative Code § 13-541).

Moreover, if Poslock had not designated any beneficiary, the final payout upon his death would have gone directly to his estate (Administrative Code § 13-542). That feature, undeniably, is part of the CPLR 4519 protection against postdeath fabrications (see, Richardson, op. cit, § 6-121, at 325 ["The purpose of the 'dead man’s’ statute is to protect estates from perjurious claims” (emphasis added)]). The indicia of decedent’s lifetime interest and control over pension and retirement rights and assets legally distinguish such assets from those Ward takes out of the statutory prohibition (see, Robillard v Booth, 271 App Div 878 [Ward exception does not apply to conversations relating to teacher retirement benefits]). We are satisfied that the Appellate Division correctly applied CPLR 4519’s protection and properly and discretely allocated the practical impact on the assets.

Appellants further argue that, even without the testimony of Dunne, Pakosh and Chris Poslock, the evidence was otherwise sufficient to support the jury’s determination in plaintiffs’ favor. This argument lacks merit, however, because their testimony constituted the only evidence of the content of the third beneficiary designation that the notary said he saw the decedent sign and that Dunne allegedly sent to the Retirement System. Without that key testimony, the jury would have been left to speculate about what the Retirement System had in fact received. Since all three copies of the third beneficiary designation allegedly executed by Poslock "disappeared” in various and curious ways, there is no way to ascertain, without resort to the witness testimony, the content of what the decedent allegedly signed. CPLR 4519 and its predecessor were designed to ward off the dangers and adverse consequences of this very kind of unverifiable development.

We have considered appellants’ remaining arguments and conclude they are also without merit.

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

Chief Judge Kaye and Judges Simons, Titone, Smith and Levine concur; Judge Ciparick taking no part.

Order affirmed, with costs.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    [666 NE2d 532, 643 NYS2d 939]
    Robert L. Ray et al., Appellants, v Beacon Hudson Mountain Corporation et al., Respondents, et al., Defendant.
    Argued March 19, 1996;
    decided April 30, 1996

      POINTS OF COUNSEL

      Robert W. Ray, Brooklyn, Russell W. Ray and Sale, Groothuis & Hirsch, Hempstead, for appellants.
    I. The lower court correctly determined that actual "seasonal use” of property for more than 30 days each year and the continued existence of a summer cottage satisfied the continuity element of appellants’ adverse possession claim. (Di Leo v Pecksto Holding Corp., 304 NY 505; Belotti v Bickhardt, 228 NY 296; Brooks v Anderson, 82 AD2d 531; Brand v Prince, 35 NY2d 634; Risi v Interboro Indus. Parks, 99 AD2d 466; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118; West v Tilley, 33 AD2d 228; 2239 Hyland Blvd. Corp. v Saccheri, 188 AD2d 524; Van Gorder v Masterplanned, Inc., 78 NY2d 1106; Beutler v Maynard, 80 AD2d 982.) II. The Court below erred in adopting a per se rule requiring "seasonal use” for the entirety of the four-month summer season in light of respondent’s notice of appellants’ adverse claim. (Di Leo v Pecksto Holding Corp., 304 NY 505; Ramapo Mfg. Co. v Mapes, 216 NY 362; Camfield v Luther Forest Corp., 75 AD2d 671; Franzen v Cassarno, 159 AD2d 950; Mastin v Village of Lima, 86 AD2d 777; Green v Horn, 165 App Div 743, 222 NY 568; Arnold v New York, Westchester & Boston Ry. Co., 173 App Div 764.)

      Frankel & Abrams, New York City (Stuart E. Abrams and Al J. Daniel, Jr., of counsel), for Beacon Hudson Mountain Corporation, respondent.
    I. Appellants failed to establish that their possession was continuous over the relevant 10-year period. (Manhattan School of Music v Solow, 175 AD2d 106, 79 NY2d 820; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118; Battista v Pine Is. Park Assn., 28 AD2d 714; Pan

      zica v Galasso, 285 App Div 859, 309 NY 978; Mandia v King Lbr. & Plywood Co., 179 AD2d 150; Jansen v Sawling, 37 AD2d 635; Pegalis v Anderson, 111 AD2d 796; Miller v Rau, 193 AD2d 868; Beutler v Maynard, 80 AD2d 982, 56 NY2d 538.) II. Appellants failed to establish any of the elements of an adverse possession claim by clear and convincing evidence. (Van Valkenburgh v Lutz, 304 NY 95; Brand v Prince, 35 NY2d 634; Hinkley v State of New York, 234 NY 309; Van Gorder v Masterplanned, Inc., 78 NY2d 1106; Manhattan School of Music v Solow, 175 AD2d 106; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118; Price v Brown, 101 NY 669; New York Cent. & Hudson Riv. R. R. Co. v Moore, 137 App Div 461, 203 NY 615; Ostrander v Bell, 199 App Div 104, 234 NY 566.) III. Appellants’ claim is barred by RPAPL 531 because the lease did not expire until 1977 and they could not begin to hold adversely for 10 years thereafter. (Gallea v Hess Realty Corp., 128 AD2d 274, 71 NY2d 999; Ley v Innis, 149 AD2d 366; Risi v Interboro Indus. Parks, 99 AD2d 466; Spiegel v Ferraro, 73 NY2d 622.)
   OPINION OF THE COURT

Titone, J.

In determining whether the common-law requirement of "continuity of possession” has been met in an adverse possession claim to an estate in land, a court should consider not only the adverse possessor’s physical presence on the land but also the claimant’s other acts of dominion and control over the premises that would appropriately be undertaken by owners of properties of similar character, condition and location. Thus, we conclude that plaintiffs’ occupancy of the summer cottage in a now-defunct resort town for one month during the summer, coupled with their regular efforts taken to secure and improve the premises and to eject trespassers during their absences for the 10-year statutory period while all neighboring structures collapsed due to vandalism or abandonment, satisfied the element of continuous actual possession. Accordingly, we reverse the Appellate Division order and reinstate Supreme Court’s judgment awarding plaintiffs all right, title and interest in the disputed land.

The property that is the subject of this adverse possession claim is a .357-acre parcel improved with a cottage on top of Mt. Beacon in the Town of Fishkill. This improved parcel sits amidst a 156-acre site that was once a thriving resort community comprised of 21 seasonal residences, a casino, a hotel and a power plant. All of the cottage’s neighboring structures have since been destroyed by vandalism, fire or general neglect. Prior to 1960, all of the cottage owners occupied their parcels as lessees.

Rose Ray came into possession of the subject premises pursuant to the terms of a December 1, 1906 lease that was assigned to her as lessee on January 31, 1931. Under the terms of that agreement, Ray purchased the cottage located on the property and paid rent for use of the underlying realty. The lease agreement provided that upon termination of the tenancy, any structures erected on the property would pass to the lessor, and the lessor would pay the lessee the reasonable value of the improvements. The lease also required the lessee to pay all taxes assessed upon the property. In December 1952, the lease was extended for 25 years, unless sooner terminated by the lessor.

The lessor terminated the leases of all occupants of the community in 1960 pursuant to the option clause in the lease. The incline service and all utilities were terminated and all cottage owners, including Ray, were directed to remove their personal effects. In accordance with this directive, Ray removed her belongings from the cottage and departed from the premises along with all remaining residents. She died in October 1962, never having been paid the reasonable value of the cottage.

In June 1963, the entire 156-acre site was purchased by Mt. Beacon Incline Lands, Inc. The contract of sale provided that all land and structures thereon were to be conveyed to the purchaser. Approximately one week after the sale in June 1963, plaintiffs — Colonel Robert L. Ray and Margaret A. Ray, the son and daughter-in-law of Rose Ray — reentered the premises formerly inhabited by Rose Ray. Thereafter, plaintiffs occupied the property for about one month per year during each summer between 1963 and 1988, which was most of Colonel Ray’s leave time from the United States Army. Plaintiffs continually paid taxes and maintained fire insurance on the parcel, installed telephone and electric service, and claimed the site as their voting residence during the period of adverse possession. Plaintiffs also took steps to prevent vandalism on the property by posting "no trespassing” signs and placing bars, shutters and padlocks on the doors and windows. On several occasions, plaintiffs apprehended vandals on the property and had them prosecuted.

Defendant Beacon Hudson Mountain Corporation acquired the 156-acre parcel in 1978 after the entire parcel was taken from defendant’s predecessor by Dutchess County for nonpayment of taxes. Plaintiffs continued to possess the disputed parcel after defendant Beacon Hudson acquired the property.

Plaintiffs commenced this adverse possession action against defendant in 1988, alleging that from 1963 through 1988 they occupied the property in question by adverse possession under a claim of title not written (see, RPAPL 521, 522), and that they were its lawful owners. Defendant counterclaimed, seeking to eject plaintiffs from the land. Following a bench trial, and a personal visit by the court to the property, Supreme Court dismissed the counterclaim and held that plaintiffs were rightful owners of the property and entitled to an easement by prescription and right of way for ingress and egress. The court concluded that plaintiffs’ occupancy of the property was "too apparent to be overlooked,” having been "continuous and open, through more than twenty-five years of paying real estate taxes, maintaining fire insurance, repelling and arresting trespassers, claiming the site as their voting residence, maintaining the structure against the effects of wind and weather and the attacks of vandals and nailing up posters against trespassers.” The court expressly found that the parcel is bounded on all sides and set apart from neighboring property by permanent stone paths, a terraced rock garden and other prominent natural objects. The court also concluded that plaintiffs had put defendant on notice of the boundaries and limits of their claim by the "constant and conspicuous use” which "made unnecessary its inclosure in fences, walls or hedges.”

The Appellate Division reversed, and declared that plaintiffs have no right, title or interest in the disputed property. The Court noted that the element of continuous possession necessary to establish title by adverse possession could be satisfied by seasonal use of property, but concluded that plaintiffs’ use for one month out of the four-month summer season was not sufficiently regular to give the owner notice of the adverse claim. We granted plaintiffs’ motion for leave to appeal, and now reverse.

To acquire title to real property by adverse possession, common law requires the possessor to establish that the character of the possession is "hostile and under a claim of right, actual, open and notorious, exclusive and continuous” (Brand v Prince, 35 NY2d 634, 636) for the statutory period of 10 years (see, RPAPL 501). "Reduced to its essentials, this means nothing more than that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (Brand v Prince, 35 NY2d, at 636, supra). Since the acquisition of title to land by adverse possession is not favored under the law (Belotti v Bickhardt, 228 NY 296, 308), these elements must be proven by clear and convincing evidence (Van Valkenburgh v Lutz, 304 NY 95, 98).

The element of continuity will be defeated where the adverse possessor interrupts the period of possession by abandoning the premises, where an intruder’s presence renders the possession nonexclusive, or where the record owner acts to eject the adverse possessor. However, the hostile claimant’s actual possession of the property need not be constant to satisfy the "continuity” element of the claim (Beutler v Maynard, 80 AD2d 982, 983, affd 56 NY2d 538).

Rather, the requirement of continuous possession is satisfied when the adverse claimant’s acts of possessing the property, including periods during which the claimant exercises dominion and control over the premises or is physically present on the land (see, 1 Warren’s Weed, New York Real Property, Adverse Possession, §§ 5.03, 6.01 [4th ed]), are consistent with acts of possession that ordinary owners of like properties would undertake (Miller v Rau, 193 AD2d 868, 869; 1 Warren’s Weed, New York Real Property, Adverse Possession, § 5.05). In other words, "[t]he character of disputed property is crucial in determining what degree of control and what character of possession is required to establish adverse possession. Thus, wild and undeveloped land that is not readily susceptible to habitation, cultivation or improvement does not require the same quality of possession as residential or arable land, since the usual acts of ownership are impossible or unreasonable” (7 Powell, Real Property, Adverse Possession ¶ 1012 [2]).

In fact, cultivating, improving and enclosing property are acts deemed by statute to be "possession and occupancy” of land and must additionally be proven to satisfy the statutory elements of an adverse possession claim where no written instrument describes the boundaries of the disputed property (see, RPAPL 521, 522 [1], [2]; Brand v Prince, 35 NY2d, at 636, supra). By their nature, regular cultivation, improvement and inclosure of another’s land constitute open and notorious acts of possession that would place record owners on notice of an adverse claim to the property (Di Leo v Pecksto Holding Corp., 304 NY 505, 512, n 1). The requisite character of the acts of improvement sufficient to supply the record owner with notice of an adverse claim will vary with "the nature and situation of the property and the uses to which it can be applied” (Ramapo Mfg. Co. v Mapes, 216 NY 362, 373) and must "consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners” (id.). Thus, the frequency and duration of such acts of improvement are to be considered in conjunction with the claimant’s other acts of dominion and control over the premises in determining whether actual possession of land has been continuous.

Clearly, where the adverse claimant seeks to establish incorporeal rights in land, use or physical presence on the property is the only means of giving notice to the record owner of a hostile claim because "[o]ne does not * * * possess or occupy an easement or any other incorporeal right” in the same manner that an estate in land is possessed (Di Leo v Pecksto Holding Corp., 304 NY 505, 511, supra). Indeed, this Court has noted that "use of an easement such as a right of way, if open and continuous, provides the same assurance of notoriety and utilization as would enclosure, cultivation or improvement in the case of land itself’ (id., at 512, n 1). Thus, while the amount of seasonal use may be dispositive of a claim of continuity in a prescriptive easement case (see, Beutler v Maynard, 80 AD2d 982, affd 56 NY2d 538, supra; Miller v Rau, 193 AD2d 868, supra), other conduct demonstrating actual possession of estates in land is relevant in determining whether title has been acquired by adverse possession.

Here, defendant claims that plaintiffs’ possession of the property was not continuous because they were physically present there for only one month out of the summer season. However, this argument fails to take into consideration plaintiffs’ other acts of dominion and control over the premises that are indicative of their actual possession of an estate in land. Here, plaintiffs’ installation of utilities and over-all preservation of the cottage, a permanent and substantial structure, in a veritable ghost town, for the duration of the statutory period demonstrates continuous, actual occupation of land by improvement (see, RPAPL 522; see also, Green v Horn, 165 App Div 743, 746; cf., Van Valkenburgh v Lutz, 304 NY 95, 99, supra [placing portable chicken coop on property along with other personalty and debris not occupation by improvement]). Thus, plaintiffs’ actual summertime use for a full month each season, coupled with their repeated acts of repelling trespassers, improving, posting, padlocking and securing of the property in their absences throughout the statutory period, demonstrated their continuous dominion and control over, and thus possession of, the property.

Indeed, this exercise of dominion and control over the premises is inconsistent with an abandonment and certainly consistent with the type of "usual acts of ownership” that would be reasonably expected to be made by owners of a summer residence in a now-defunct seasonal resort area plagued by vandals (Monnot v Murphy, 207 NY 240, 245). Such seasonal presence, coupled with plaintiffs’ preservation of the premises for the statutory period of 10 years — which was made more obvious by the fact that all neighboring structures had collapsed due to vandalism and abandonment — was sufficient to place the record owner on notice of their hostile and exclusive claim of ownership (cf., Wysocki v Kugel, 282 App Div 112, 114, affd 307 NY 653 [dilapidated condition of buildings is indicative of use by a squatter or licensee rather than by one claiming ownership]). Because defendant was clearly placed on notice of plaintiffs’ hostile claim of ownership, its failure to seek plaintiffs’ ouster within the statutory period results in its disseisin.

Defendant’s remaining contentions lack merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Dutchess County, reinstated.

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

Order reversed, etc.

      . On July 5,1995, defendant Beacon Hudson executed a deed purporting to transfer its interests in the 156-acre parcel, including the .357 acre in question, to Scenic Hudson Land Trust, Inc. On plaintiffs’ motion filed in this Court, Scenic Hudson was joined as a party defendant, and adopts the arguments of defendant Beacon Hudson.

      . Real Property Actions and Proceedings Law article 5 establishes statutory requirements of an adverse possession claim that must be proven by clear and convincing evidence as well (Brand v Prince, 35 NY2d, at 636, supra). Here, plaintiffs’ claim of right to the premises is not derived from a written instrument that describes the bounds of the property possessed, but rather is based on ancestral ownership of the cottage. Thus, RPAPL 521 and 522, which together define what constitutes adverse possession of property under a "claim of title not written,” govern here. Section 521 provides that "[w]here there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely.” Section 522 provides that land is deemed to be "possessed and occupied” within the meaning of section 521 when "usually cultivated or improved” or "protected by a substantial inclosure” (RPAPL 522 [1], [2]).

      . Plaintiffs established that their possession of the property included the 10-year period from the date that defendant Beacon Hudson purchased the 156-acre parcel after tax sale in June 1978 to the date of the commencement of this lawsuit in August 1988. Accordingly, we do not have occasion to address whether the tax sale extinguished plaintiffs’ claims of adverse possession of the .357-acre parcel predating that sale (cf., Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 426; RPTL 1020 [3]).

      . We are bound by the factual finding that plaintiffs were present on the land for one full month each summer, which was aflirmed by the Appellate Division, and has record support.

      . While the record reveals that plaintiffs continuously paid taxes on the premises, the "[p]ayment of taxes is no evidence of possession, either actual or constructive” (Archibald v New York Cent. & Hudson Riv. R. R. Co., 167 NY 574, 583). Rather, proof of tax payment has "been regarded as an act which shows a claim of title” (id.), and may also be relevant in determining whether, by such act, the adverse claimant has declined to recognize a superior title in the record owner and has thereby shown the requisite hostile nature of the possession (City of New York v Wilson & Co., 278 NY 86, 95-96).


author: Ciparick, J.

text:
    [666 NE2d 537, 643 NYS2d 944]
    City of New York, Respondent, v Job-Lot Pushcart et al., Defendants, and JA-RU, Appellant.
    Argued March 26, 1996;
    decided May 7, 1996

      POINTS OF COUNSEL

      Locker Greenberg & Branin, P. C., New York City (Frederick B. Locker of counsel), for appellant.
    The code is preempted by the Federal Toy Gun Law. (Cipollone v Liggett Group, 479 US 1043; Morales v Trans World Airlines, 504 US 374; Maryland v Louisiana, 451 US 725; McCulloch v State of Maryland, 4 Wheat [17 US] 316; Pennsylvania v Nelson, 350 US 497; Rice v Santa Fe El. Corp., 331 US 218; Hillsborough County v Automated Med. Labs, 471 US 707; Toy Mfrs. v Blumenthal, 986 F2d 615; Florida Avocado Growers v Paul, 373 US 132; Retail Clerks v Schermerhorn, 375 US 96.)

      Paul A. Crotty, Corporation Counsel of New York City (George Gutwirth and Francis F. Caputo of counsel), for respondent.
    Section 10-131 of the Administrative Code of the City of New York is not preempted by the Federal statute (15 USC § 5001) and regulations (15 CFR part 1150). (People v Pymm, 76 NY2d 511; Cipollone v Liggett Group, 505 US 504; Wisconsin Pub. Intervenor v Mortier, 501 US 597; Hillsborough County v Automated Med. Labs., 471 US 707; Florida Avocado Growers v Paul, 373 US 132; Motor Vehicle Mfrs. Assn. v Abrams, 899 F2d 1315, 499 US 912; Toy Mfrs. v Blumenthal, 986 F2d 615; Luna v Harris, 888 F2d 949; Nettleton Co. v Diamond, 27 NY2d 182, appeal dismissed sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; New York Dept. of Social Servs. v Dublino, 413 US 405.)
   OPINION OF THE COURT

Ciparick, J.

Since 1955, New York City has outlawed the sale, possession or use of any toy or imitation gun which substantially resembles an actual firearm because of the toy’s potential for nefarious exploitation (see, Administrative Code of City of NY § 10-131 [g]; Proceedings of NY- City Council, at 24 [Jan. 18, 1955]). Only toy guns that are not blue, black, silver or aluminum in color, bear an identifiable trade name or mark, and contain a solid plug in the barrel can be sold, possessed or used in New York City (see, Administrative Code § 10-131 [g]). At issue is whether these conditions are preempted by the 1988 Federal Toy Gun Law. We conclude that Congress has not expressly or impliedly preempted local regulation of the markings on toy guns, and that the conditions set forth in Administrative Code § 10-131 (g) are not incompatible or inconsistent with those provided in the Federal Toy Gun Law in that compliance with both is not impossible. Indeed, compliance with the Administrative Code conditions furthers the public safety aim of the Federal statute. Therefore, we affirm the order of the Appellate Division and answer the certified question in the affirmative.

I.

The City instituted this action against defendants, entities that place toy guns into the New York City stream of commerce, to permanently enjoin the manufacture, distribution, transportation, sale and possession of toy weapons in violation of Administrative Code § 10-131 (g). Evidently, the toy guns confiscated from defendants duplicate the semiautomatic assault pistols frequently used in the commission of crimes, are black in color, and do not bear any mark identifying the manufacturer. In opposition to plaintiffs order to show cause seeking a preliminary injunction, defendant-appellant JA-RU, Inc., a national distributor and marketer of toy guns, moved for a declaration that Administrative Code § 10-131 (g) was preempted by the Federal Toy Gun Law (15 USC § 5001) and its implementing regulations (15 CFR 1150.1 et seq.) (collectively, the Federal Toy Gun Law), arguing that the City’s action contravened the Federal statute regulating toy weapons. JA-RU represented that it distributes toy guns that comply with the markings approved by the Secretary of Commerce, which require that the toy contain a "blaze orange solid plug permanently affixed to the muzzle end of the barrel and recessed no more than 6 millimeters from the muzzle end” (15 CFR 1150.3 [a]).

Supreme Court preliminarily enjoined defendants from selling and distributing toy guns in violation of Administrative Code § 10-131 (g), and denied JA-RU’s motion by declaring that Administrative Code § 10-131 (g) is not preempted by 15 USC § 5001. The Appellate Division affirmed, with two Justices dissenting (see, City of New York v Job-Lot Pushcart, 213 AD2d 210), and certified the question, "Was the order of the Supreme Court, as affirmed by this Court, properly made?”

On this appeal, JA-RU strenuously argues that Congress’s intent to preempt all State and local laws relating to toy guns is plain on the face of 15 USC § 5001 (g). According to JA-RU, Congress delineated a comprehensive scheme of identification and markings that cannot be superseded by a different State or local scheme. Because Administrative Code § 10-131 (g) prohibits what is permitted under the Federal Toy Gun Law, JA-RU asserts, the Administrative Code provision is inconsistent with the Federal Toy Gun Law. JA-RU posits that preemption of the incompatible City law comports with "one of the [Federal statute’s] essential purposes * * * a uniform scheme of national regulation.” We disagree.

II.

The premise of JA-RU’s argument is the well-settled rule that the Supremacy Clause of the United States Constitution (US Const, art VI, cl [2]) invalidates State or local laws that "interfere with, or are contrary to” Federal law (Gibbons v Ogden, 9 Wheat [22 US] 1, 211). However, the conclusion urged by JA-RU — that the Federal Toy Gun Law preempts Administrative Code § 10-131 (g) — does not result from an application of traditional preemption principles but from the economic impact on JA-RU resulting from the ban on the distribution of its toy guns in New York City.

The threshold issue in the preemption analysis is whether the subject Federal legislation intrudes on traditional police powers reserved to the States (see, Cipollone v Liggett Group, 505 US 504, 516). Historically, the regulation of health, safety and welfare has been the province of the States (see, Toy Mfrs. v Blumenthal, 986 F2d 615, 617). The United States Supreme Court has decreed that unless Congress manifestly and clearly intends to preempt the States’ exercise of jurisdiction over matters relating to the welfare of their citizens, the States’ police powers are not to be superseded by a Federal act (see, Rice v Santa Fe El. Corp., 331 US 218, 230; see also, Fidelity Fed. Sav. & Loan Assn. v De la Cuesta, 458 US 141, 152-153; Auto Workers v Wisconsin Bd., 351 US 266, 274-275 ["States are the natural guardians of the public against violence * * * We would not interpret an act of Congress to leave them powerless to avert * * * emergencies without compelling directions to that effect”]; Florida Avocado Growers v Paul, 373 US 132, 146-147; NY Const, art IX, § 2 [c] [ii]). Therefore, the "purpose of Congress is the ultimate touchstone” of preemption analysis (Retail Clerks v Schermerhorn, 375 US 96, 103).

Because it is uncontroverted that Administrative Code § 10-131 (g) represents a valid exercise of the police powers delegated to the City by the State Constitution and the Municipal Home Rule provisions (see, People v Judiz, 38 NY2d 529, 531), the efficacy of the City ordinance turns on whether Congress has preempted all State and local regulation of toy guns pursuant to 15 USC § 5001 (g) (see, Florida Avocado Growers v Paul, 373 US, at 142, supra; see also, Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 107; People v De Jesus, 54 NY2d 465, 468; People v Lewis, 295 NY 42, 49-50).

As we summarized in People v Pymm (76 NY2d 511, 519, cert denied 498 US 1085) there are three ways in which a Federal law can preempt a State or local law: one, by express provision in the Federal statute; two, by inference, where the Federal legislative scheme is so pervasive and the character of the obligations imposed leaves no room for the State or local government to legislate; and three, to the extent that the State or local law actually conflicts with the Federal law, for example where compliance with both is impossible or adherence to the State or local law would thwart the objectives of its Federal counterpart (internal citations omitted; see also, Barnett Bank v Nelson, 117 US —, 116 S Ct 1103, 1108-1109).

We turn first to a consideration of the specific language of preemption employed by Congress in the Federal Toy Gun Law.

A.

The preemption provision in the Federal Toy Gun Law provides that

"The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall—
"(i) prohibit the sale or manufacture of any lookalike, nonfiring, collector replica of an antique firearm developed prior to 1898, or
"(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B-B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.” (15 USC § 5001 [g].)

The sweep of the Federal Toy Gun Law’s preemption clause is not as far-reaching as JA-RU and the dissenters below contend by urging that the statutory language explicitly preempts the field and ends the inquiry (see, City of New York v Job-Lot Pushcart, 213 AD2d, at 213, supra). Rather, the plain language employed by Congress demonstrates that only State regulation of replicas of antique collector firearms, B-B guns, paint ball guns, or pellet-firing air guns is expressly preempted under 15 USC § 5001 (g), which bars any State from prohibiting the sale of such devices, and with respect to antique replicas of pre-1898 firearms, the manufacture of such devices (see, 15 USC § 5001 [g] [i], [ii]; Coalition of N. J. Sportsmen v Florio, 744 F Supp 602, 608-609).

The clearly defined reach of this provision compels the conclusion that Congress did not intend to supersede all local regulation of markings on toy guns. Where "Congress has considered the issue of pre-emption and has included * * * a provision explicitly addressing that issue * * * 'there is no need to infer congressional intent to pre-empt [other] state laws from the substantive provisions’ of the legislation. * * * Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted” (Cipollone v Liggett Group, 505 US, at 517, supra [internal citation omitted]; see also, Vatore v Commissioner of Consumer Affairs of City of N. Y., 83 NY2d 645, 650). Similarly, when we considered whether a State environmental statute superseded a town ordinance on the same subject, we rejected the proposition that the "mere fact that the State deals with a subject [means] it automatically pre-empts it” (Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; see also, People v Lewis, 295 NY, at 50, supra).

The limited scope of the preemption clause is confirmed by the comments of the legislation’s sponsor, Senator Robert Dole, made during the Senate debate that "[a]t the suggestion of the California Senators, the preemption section has been modified to accommodate the new California law” (134 Cong Rec S 15531, S 15535 [Oct. 11, 1988]). The very fact that the preemption clause in the Federal statute was modified before adoption, to permit a recently enacted California statute to stand, constitutes an explicit acknowledgment of the validity of State regulatory measures and provides compelling evidence that Congress was not impliedly imposing a pervasive, preemptive regulatory scheme. JA-RU’s assertion, then, that the essential purpose of the Federal Toy Gun Law is to promote a "uniform system of national regulation” rings hollow. This contention is further undermined when JA-RU’s true intention — the unimpeded flow of toy guns through interstate markets — is juxtaposed against the actual goal of the Federal Toy Gun Law — guarding the public safety, which was also the motivating objective for the City Council’s adoption of Administrative Code § 10-131 (g) in 1955 (see, 134 Cong Rec, at S 15534 [statement of Senator Dole that the purpose of his amendment was to "allow continued production, sale and distribution of (toy guns), while at the same time reducing the potential for misuse as much as possible” as "a few incidents have actually occurred to date involving the criminal misuse of toy or imitation guns”]; 134 Cong Rec H 10071 [Oct. 12, 1988] [statement of Representative Moorhead, same as above]; Proceedings of Council of NY City, at 24 [Jan. 18, 1955]). However laudable a national public safety campaign regulating the sale arid use of realistic toy guns may be, it remains that Congress did not enact the Federal Toy Gun Law to supplant all State and local measures. The issue then narrows to whether the conditions set forth in Administrative Code § 10-131 (g) "provide for markings or identification inconsistent with provisions” (15 USC § 5001 [g]) of the Federal Toy Gun Law to the extent that there is "such actual conflict between the two schemes of regulation that both cannot stand in the same area” (Florida Avocado Growers v Paul, 373 US, at 141, supra).

B.

On the State level, "inconsistency has been found where local laws prohibit what would have been permissible under State law or impose prerequisite additional restrictions on rights under State law, so as to inhibit the operation of the State’s general laws” (New York State Club Assn. v City of New York, 69 NY2d 211, 217, affd 487 US 1, quoting F.T.B. Realty Corp. v Goodman, 300 NY 140, 147-148 [internal quotations omitted]; see also, Florida Avocado Growers v Paul, 373 US, at 143, supra; Vatore v Commissioner of Consumer Affairs of City of N. Y., 83 NY2d, at 649, supra; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d, at 682, supra). Likewise, where Congress has not expressed an intent to supersede all State or local regulation in a field, a State or local law will he preempted if it is impossible to comply with both the local and Federal law (see, Florida Avocado Growers v Paul, 373 US, at 142-143, supra), or the State or local law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress (see, Hines v Davidowitz, 312 US 52, 67; Barnett Bank v Nelson, 117 US, at —, 116 S Ct, at 1109, supra).

The Federal Toy Gun Law only supersedes State or local laws that "provide for markings or identification inconsistent with” its terms. The additional conditions imposed by Administrative Code § 10-131 (g) do not conflict with the conditions enumerated in the Federal Toy Gun Law. As the Appellate Division noted "it is feasible to make a red or purple toy gun [which bears the manufacturer’s trade name and contains] an orange [plug], thus satisfying both laws” (City of New York v Job-Lot Pushcart, 213 AD2d, at 210, supra). Therefore, it is not impossible to comply with both the Federal Toy Gun Law and Administrative Code § 10-131 (g). That the sale of JA-RU’s toy guns is only illegal under the terms of the local provision is not a basis for preemption of the City law, as the dissenters below opine, because "this general principle applies only where the Legislature has shown its intent to preempt the field” (Vatore v Commissioner of Consumer Affairs of City of N. Y., 83 NY2d, at 651, supra). Indeed, compliance with both the Federal and local laws at once furthers the intent of Congress and achieves the public safety objective underlying each measure. The Federal Toy Gun Law seeks to impose some regulatory guidelines, in part, to override local laws that completely banned toy guns from certain jurisdictions (see, 57 Fed Reg 48451 [1992] [codified at 15 CFR 1150.1 et seq.]; 134 Cong Rec, at S 15534). In response to these local bans, the Hobby and Toy Industry of America and the Toy Manufacturers of America pressed congressional members for passage of the Federal Toy Gun Law, which by its terms incorporates markings voluntarily adopted by the industry (see, 134 Cong Rec, at S 15534). Against this backdrop, the Federal Toy Gun Law is not an attempt to dominate the field. States and localities can erect a regulatory framework that expands upon the Federal foundatian, and to the extent that Administrative Code § 10-131 (g) complements the Federal Toy Gun Law, the City’s regulatory conditions can coexist with the Federal statute.

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

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

Order affirmed, etc.


text:
    [666 NE2d 542, 643 NYS2d 949]
    The People of the State of New York, Respondent, v Daniel Payne, Appellant. The People of the State of New York, Respondent, v Anthony Jones, Appellant. The People of the State of New York, Respondent, v Charles Lowery, Appellant.
    Argued March 20, 1996;
    decided May 7, 1996

      POINTS OF COUNSEL

      Claudia S. Trupp, New York City, and Daniel L. Greenberg for appellant in the first above-entitled action.
    The court improperly denied appellant his right to exercise peremptory challenges by ruling that the defense had not proffered adequate race-neutral reasons for challenging two jurors, although counsel’s explanations were not inherently discriminatory and were based on the juror’s responses during the voir dire, and the prosecutor never alleged that the explanations were pretextual or stated any other circumstances suggesting that the defense was intentionally discriminating against white jurors. (Holland v Illinois, 493 US 474; Lewis v United States, 146 US 370; People v Kern, 75 NY2d 638, 498 US 824; Batson v Kentucky, 476 US 79; People v Allen, 86 NY2d 101; Hernandez v New York, 500 US 352; People v Childress, 81 NY2d 263; People v Jenkins, 84 NY2d 1001; People v Scott, 70 NY2d 420; Ham v South Carolina, 409 US 524.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Victor Barall and Roseann B. MacKechnie of counsel), for respondent in the first above-entitled action.
    The affirmed findings of the trial court, that defense counsel’s reasons for striking two prospective jurors were pretextual, are supported by the record and, therefore, are beyond the scope of this Court’s review. (People v Hernandez, 75 NY2d 350, 500 US 352; People v Bell, 63 NY2d 796; Batson v Kentucky, 476 US 79; Georgia v McCollum, 505 US 42; People v Kern, 75 NY2d 638; People v Allen, 86 NY2d 101; Johnson v Love, 40 F3d 658; United States v Perez, 35 F3d 632; United States v Koon, 34 F3d 1416; United States v Sneed, 34 F3d 1570.)

      Claudia S. Trupp, New York City, and Daniel L. Greenberg for appellant in the second above-entitled action.
    The court improperly granted the prosecution’s Batson motion where the prosecutor failed to demonstrate a prima facie violation of Bat-son by merely alleging that the defense had challenged six white jurors, the court insisted that the defense proffer "nonpretextual” reasons supporting its challenges, and although counsel offered a valid race-neutral explanation which the prosecutor never alleged to be pretextual, the court granted the motion over defense objection without making factual or credibility findings supporting its ruling. (Batson v Kentucky, 476 US 79; People v Childress, 81 NY2d 263; People v Steele, 79 NY2d 317; People v Jenkins, 84 NY2d 1001; United States v Jordan, 893 F2d 182, 496 US 902; People v Hawthorne, 80 NY2d 873; People v Simmons, 79 NY2d 1013; People v Scott, 70 NY2d 420; United States v Dawn, 897 F2d 1444, 498 US 960.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Victor Barall and Roseann B. MacKechnie of counsel), for respondent in the second above-entitled action.
    Defendant’s claim that the court erred in requiring him to explain his first-round peremptory challenges is moot and, in any event, without merit. Furthermore, the trial court properly found that defense counsel’s stated reasons for striking two prospective jurors were pretextual. (Johnson v Love, 40 F3d 658; People v Hernandez, 75 NY2d 350, 500 US 352; Georgia v McCollum, 505 US 42; People v Kern, 75 NY2d 638; People v Allen, 86 NY2d 101; U. S. Postal Serv. Bd. of Governors v Aikens, 460 US 711; United States v Perez, 35 F3d 632; United States v Koon, 34 F3d 1416; United States v Sneed, 34 F3d 1570.)

      Allen Fallek, New York City, and Daniel L. Greenberg for appellant in the third above-entitled action.
    I. The prosecutor failed to make out a prima facie case of discrimination based solely on a purported "pattern of strikes” against white jurors where, due to the prosecutor’s own challenges to black jurors, there were virtually no nonwhite jurors left on the panels for the defense to exclude. (Batson v Kentucky, 476 US 79; Georgia v McCollum, 505 US 42; People v Kern, 75 NY2d 638; People v Bolling, 79 NY2d 317; People v Childress, 81 NY2d 263; People v Jenkins, 75 NY2d 550; People v Smith, 81 NY2d 875; People v Allen, 86 NY2d 101; People v Hawthorne, 80 NY2d 873; People v Simmons, 79 NY2d 1013.) II. Where defense counsel’s explanation for a peremptory challenge was not based on race, the trial court’s erroneous ruling at step two that the explanation was not race neutral, and the Court below’s affirmance based on erroneous legal analysis, deprived appellant of his rights to exercise peremptory challenges and to be tried by a jury in whose selection he had a voice. (Batson v Kentucky, 476 US 79; Hernandez v New York, 500 US 352; People v Allen, 86 NY2d 101; Purkett v Elem, 514 US 765, 115 S Ct 1769; People v Wesley, 76 NY2d 555; People v Buford, 69 NY2d 290.) III. Extensive cross-examination that improperly elicited a character witness’s personal opinion and tested the basis of appellant’s reputation with the inflammatory details of the crime at issue was not harmless where appellant’s good reputation in the community was an integral part of the defense case. (People v Bouton, 50 NY2d 130; People v McDowell, 9 NY2d 12; People v Van Gaasbeck, 189 NY 408; People v Aharonowicz, 71 NY2d 678; People v Kennedy, 47 NY2d 196; People v Richardson, 114 AD2d 980; People v Taylor, 162 AD2d 175; People v Gandy, 152 AD2d 909; People v Pryor, 70 AD2d 805; People v Lopez, 67 AD2d 624.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Michael Gore, Roseann B. MacKechnie and Victor Barall of counsel), for respondent in the third above-entitled action.
    I. Defendant’s claim that the court erred in requiring him to explain his fourth-round peremptory challenges is moot and, in any event, without merit. Furthermore, the trial court properly found that defense counsel’s stated reason for striking a prospective juror was pretextual. (Johnson v Love, 40 F3d 658; People v Hernandez, 75 NY2d 350, 500 US 352; Batson v Kentucky, 476 US 79; Georgia v McCollum, 505 US 42; People v Scott, 70 NY2d 420; People v Kern, 75 NY2d 638; People v Allen, 86 NY2d 101; U. S. Postal Serv. Bd. of Governors v Aikens, 460 US 711; People v Bolling, 79 NY2d 317; United States v Perez, 35 F3d 632.) II. Defendant’s claim regarding the cross-examination of Ms. Hall is almost entirely unpreserved for review. In any event, defendant was not unduly prejudiced by the prosecutor’s cross-examination of Sarah Hall. (People v Medina, 53 NY2d 951; People v Santiago, 52 NY2d 865; People v Crimmins, 36 NY2d 230; People v Peterson, 194 AD2d 124; People v Gandy, 152 AD2d 909; People v Bouton, 50 NY2d 130; People v Van Gaasbeck, 189 NY 408; People v Pavao, 59 NY2d 282; People v Pollock, 50 NY2d 547; People v Schwartzman, 24 NY2d 241.)
   OPINION OF THE COURT

Bellacosa, J.

This Court recently refined the three-step procedure that trial courts are required to follow in determining allegedly discriminatory use of peremptory challenges against prospective jurors (People v Allen, 86 NY2d 101; see, Batson v Kentucky, 476 US 79). These appeals in three unrelated cases require the Court to review the application of these procedures when the People assert discriminatory use of peremptory challenges by the defense (see, People v Kern, 75 NY2d 638). In all three cases, the trial courts upheld several objections from the People that defense peremptory strikes discriminated on the basis of race (two in People v Payne, two in People v Jones and one in People v Lowery).

I.

A.

In People v Payne, defendant was convicted of obstructing governmental administration and second-degree criminal contempt, arising out of an incident in a Brooklyn courtroom involving two court officers. During the jury examination phase of his trial, defendant, who is African-American, challenged four white prospective jurors: Numbers Two, Six, Eight and Nine. Only Numbers Eight and Nine, whom the trial court ordered seated despite defendant’s effort to peremptorily excuse them, are at issue on this appeal. The People made a Batson-Kern objection, alleging that the four peremptory challenges were racially discriminatory. The trial court required defense counsel to "[g]ive me race-neutral reasons.” Defense counsel’s explanation for his challenge to juror Number Eight was as follows:

"I just note for him, he’s lived in the same neighborhood in Brooklyn for 50 years and that his criteria for judging a witness’ credibility was limited. He seemed to believe that one would judge the credibility of a witness just by observing their body language and I think the Court Officers are going to be more calm witnesses than Mr. Payne will. So, I had a problem with that.”

As to Number Nine, counsel stated:

"[A]ll I could say was that I had trouble getting any information out of him. He sat there quietly for the most part. All his answers were yes or no and I’m insecure with that because I have no idea who this person is and that makes both me and Mr. Payne uncomfortable. We’d like to elicit dialogue from jurors and, so, we couldn’t be confident that he could be fair and impartial.”

Notably, counsel did not challenge other, similarly-situated jurors, who had either lived in one place for a long time or gave laconic answers to counsel’s questions.

After hearing defense counsel’s proffered reasons, the trial court ruled that the peremptory challenge to juror Number Eight could not stand because the race-neutral explanation was "totally disingenuous.” As to Number Nine, the trial court stated, "the fact that he answered yes or no, other jurors answered yes or no. You didn’t challenge them. I find that to be a racially motivated challenge and I will disallow that challenge.” The court allowed the defense peremptory challenges to Numbers Two and Six.

The Appellate Division affirmed, and on the pertinent issue ruled:

"[T]he Supreme Court properly determined that the explanations proffered by defense counsel for the exercise of his peremptory challenges against the two subject panelists were mere pretext offered in an attempt to conceal a racially discriminatory intent. This determination is entitled to great deference on appeal and will not be disturbed where, as here, it is supported by the record” (213 AD2d 565, 565-566).

A Judge of this Court granted leave to appeal to the defendant, and we now affirm.

B.

In People v Jones, the defendant, an African-American, was convicted in Brooklyn of selling crack/cocaine. After the first round of jury examination prior to trial, defense counsel exercised peremptory challenges against six white prospective jurors. The prosecutor objected, asserting racial discrimination. The trial court was satisfied that the People had made a prima facie showing of racial discrimination and asked defense counsel to provide "non-pretextual” reasons for the peremptory challenges. Defense counsel objected, arguing the lack of a prima facie showing, but nonetheless proffered purportedly race-neutral explanations as to each of the challenged jurors.

The excusai of two of the six jurors — those for whom the trial court ultimately disallowed the defense peremptory challenges — are the only ones at issue in this case. As to juror Number Two, defense counsel stated:

"[He] was challenged based on a consultation with my client. He, based on his own feelings regarding the types of individuals that he wanted to sit on the jury that would judge him, felt that juror number two did not respond in a way that he felt that that individual would be fair to him.”

Counsel articulated his challenge to juror Number Six as follows:

"[H]is wife is a legal secretary and has experience in that area and, again, number six was one of the jurors that on consultation with my client, he again felt that one of the peremptory challenges that we have that he felt was to be used because of the way he felt about this particular person.”

The court found, however, that "the reasons given for [Numbers Two and Six] are pretextual and those jurors will be seated.” The Trial Judge denied the rest of the People’s objections— allowing the defense peremptory strikes to stand as to the other four prospective jurors. The court also granted in part and denied in part a Batson objection by the defendant pertaining to some of the People’s peremptory challenges.

The Appellate Division affirmed the conviction (213 AD2d 677). A Judge of this Court granted defendant leave to appeal and we now modify and conditionally remit for further proceedings.

C.

In People v Lowery, defendant was convicted in Brooklyn of murder in the second degree and criminal possession of a weapon in the third degree. After the fourth round of jury selection at defendant’s trial, the prosecutor made a BatsonKern objection, alleging a defense pattern of striking white jurors throughout all four rounds, culminating with six-out-of-six challenges of white jurors in the fourth round. In response to a trial court inquiry, defense counsel gave the following explanation for his challenge to juror Number Three, the only juror at issue on this appeal:

"[B]asically, I looked at her, she’s from Bay Ridge. I’m looking at — I would like to increase, have more the type of people who come from the neighborhood he comes from. She’s from Bay Ridge. She’s a high school teacher.
"She didn’t appeal to me, she didn’t appeal — it’s a peremptory challenge. She did not appeal to me.”

The court ordered Number Three to be seated over defendant’s objection, but upheld the defense peremptory strikes for the other five. The court stated, "That one is overruled on the basis of the objection made. It’s not race neutral, in my view.”

The Appellate Division affirmed, holding that the trial court correctly found a prima facie showing of purposeful discrimination and, thus, properly required defense counsel to proffer race-neutral reasons. As to juror Number Three, the court held that, "[w]hile the defense counsel’s explanations were generally race-neutral, we agree with the court’s conclusion, which is to be accorded great deference on appeal” that the challenge to juror Number Three was pretextual (214 AD2d 684, 685).

A Judge of this Court granted defendant leave to appeal, and we now modify and conditionally remit for further proceedings.

II.

A.

In Batson v Kentucky (476 US 79, supra), the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the peremptory challenge of prospective jurors based on their race (US Const 14th Amend). The Batson rule circumscribes racially rooted peremptory excusáis by lawyers for both the defense and prosecution equally (see, People v Kern, 75 NY2d 638, 643, supra; NY Const, art I, § 11; see also, People v Allen, 86 NY2d 101, 104, n 1, supra; Georgia v McCollum, 505 US 42). The essence of a Batson violation is intentional discrimination that rises to an equal protection violation (Hernandez v New York, 500 US 352, 359-360, affg 75 NY2d 350). The cases of the past 10 years honor and enforce these constitutional principles and promulgate protocols designed to condemn, expose and root out such practices with complementary rules that implement the objectives.

When one side in a criminal case claims that the other side’s exercise of peremptory strikes is infected by purposeful discrimination, the trial court must engage in a three-step process. Initially, the party contesting the peremptory challenges — the prosecution in these three cases — must satisfy the court with a prima facie showing that the peremptory strikes related to the race of the jurors sought to be removed (Batson v Kentucky, supra, at 96-97). If that threshold showing is met, the lawyer seeking the excusáis — the defense in these three cases — has the burden of coming forward "to overcome the inference of purposeful discrimination” (People v Allen, 86 NY2d 101, 109, supra). To do so, that party must voice a "race-neutral explanation for striking the jurors in question” (Hernandez v New York, 500 US 352, 358-359, supra). When the proffered explanations appear facially race-neutral, the trial court must then determine "whether the opponent of the strike [here, the People] has proved purposeful racial discrimination” (Purkett v Elem, 514 US 765, —, 115 S Ct 1769,1 771). The focus at this third step is whether the "race-neutral” explanation is a mere pretext for racial discrimination (id.). The ultimate burden of persuasion at the third stage rests unalterably on the party objecting to the peremptory strikes — in these three cases, the People.

B.

At the outset, all three defendants-appellants assert that the trial courts erred at the first step by concluding that the prosecution had satisfactorily shown a prima facie case of discrimination merely by noting that all of the challenged jurors were white. We need not address or resolve this threshold argument because the subsequent rulings by the trial courts in Payne and Jones on the ultimate issue of purposeful discrimination and pretext moot this first-step issue. As stated by the Supreme Court in Hernandez v New York (500 US 352, 359, supra):

"Once a prosecutor [or defense counsel, as in these three cases] has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant [or prosecution] had made a prima facie showing becomes moot.”

Thus, our final-stage appellate review of these cases focuses only on steps two and three.

C.

In People v Allen (86 NY2d 101, supra), the issue involved the allegedly discriminatory use of peremptory challenges by the People. The Court emphasized that "where [defense] counsel has perceived something suggesting a discriminatory motive in the questioning of a prospective juror, we require that those concerns be fully articulated to the trial court during its factual inquiry” (id., at 110-111).

Allen, however, presents a different procedural posture from the instant cases. In Allen, a defendant was claiming on appeal that a trial court should have found pretext at step three. Because the defense failed to articulate its reasons at the trial level for such a ruling, the trial court was held not to have erred in finding that the defendant had not carried its burden of proof below (People v Allen, supra, 86 NY2d, at 111). Here, the People are defending on appeal the finding of the trial courts, which did find pretext, at least in Payne and Jones. If a pretext finding is sufficiently explicated and the record supports it — as it does in Payne — no articulation problem under Allen is implicated. Indeed, this analysis is consistent with and complementary to Allen’s requirements and has been endorsed by the Supreme Court in Purkett v Elem (514 US 765, 115 S Ct 1769, supra).

The step two "explanation” required of a striking party is quite minimal, and mere facial race neutrality fulfills the burden of production (People v Allen, supra, 86 NY2d, at 109). Thus, a court must uphold a proffered explanation as race neutral (that is, allow the peremptory strike to remove the prospective juror) if the reason is "based on something other than the race of the juror” (Hernandez v New York, supra, 500 US, at 360). Indeed, step two "does not demand an explanation that is persuasive, or even plausible” (Purkett v Elem, 514 US 765, —, 115 S Ct 1769, 1771, supra). As we further explained in Allen, "step two is met by offering any facially neutral reason for the challenge — even if that reason is ill-founded — so long as the reason does not violate equal protection” (People v Allen, supra, 86 NY2d, at 109 [emphasis added], citing Purkett v Elem, supra).

At the third step, trial courts are authorized to act on outlandish or entirely evanescent assertions, even if they appear race neutral on their face. At this last step, "the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination” (Purkett v Elem, supra, 514 US, at —, 115 S Ct, at 1771). Purkett and Allen carefully reflect the cadenced but related features of steps two and three, emphasizing that although "a trial judge may choose to disbelieve a silly or superstitious reason” put forth by the striking party, that Judge is not required to do so, and must in all cases make a step three pretext determination (id).

The distinctive procedural development in these cases concerns the trial courts’ responsibility to make a sufficient record to allow for meaningful appellate review that insures and reflects that each party fulfills its burden and has an opportunity for input. When a trial court finds that the opponent of the peremptory strikes — here, the People, but usually defense counsel objecting to alleged prosecutorial discriminatory strikes as in Allen — has carried its ultimate and unalterable burden of persuasion, that ruling and its basis must be reflected, and gouged on the record made. The legal burdens of production and persuasion must be correctly allocated and maintained, and a meaningful record must reflect that these prerequisites have been satisfied.

Thus, when a trial court exercises its authority "to disbelieve a silly or superstitious reason” (Purkett v Elem, supra, 514 US, at —, 115 S Ct, at 1771) and renders its ruling promptly and without further inquiry after step two — without hearing more discussion from either or each side again and after a full and unrestricted step two record opportunity — such rulings do not constitute per se reversible error. To be sure, both sides must be afforded adequate opportunities to make their respective records as may be indicated and appropriate in fulfillment of their particular burdens or in support of or opposition to particular positions. Indeed, Allen teaches that the parties are obligated to do so, if they want their concerns properly taken into account.

Likewise, the trial courts bear the judicial responsibility of ensuring that an adequate record is made and of reflecting the basis for their rulings. When Trial Judges are satisfied, however, that unlawful discrimination has been employed by either side, there should be no artificial procedural barriers to their taking firm and prompt action. Immediate action may even be the most effective and just course of proceeding. The circumstances of voir dire examinations in individual cases vary enough by the nature of the process so that this exceptional range of procedural flexibility is appropriate.

By way of summary, we stress that adherence to the promulgated protocols is the best guarantee of an adequate reviewable record. We are satisfied, however, that procedural formalism with a rigid set of categorical imperatives is not a sine qua non for the effective and fair operation of the three-step protocol, which is designed to ensure the proper operation and correct application of the Batson-Alien principles. Thus, in the Batson-Kern-Allen context relevant here, if the party asserting the peremptory strike puts forward race-neutral reasons and the other side says nothing more, the Trial Judge may nevertheless find purposeful discrimination — pretext— based on the court’s founded and articulated rejection of the race-neutral reason. We turn to the application of these principles in the three cases now before us.

III.

A.

The record developed in the trial court in People v Payne provides a sufficient basis to conclude that defendant’s asserted reasons for the peremptory excusáis of two jurors, though facially race neutral, were ultimately pretextual. Although the court did not at that stage use the word "pretext,” that finding is reasonably inferred and supportable. The trial court characterized the proffered reason for the challenge of juror Number Eight as "totally disingenuous.” It also rendered a specific bottom-line conclusion that the challenge to Number Nine was "a racially motivated challenge.”

Initially, the proffered reasons as to both jurors were race neutral and satisfied the defendant’s step two burden. The reason given for the challenge to juror Number Eight, that he was a long-term resident of one Brooklyn neighborhood, is unrelated on its face to race. Likewise, defense counsel’s claim that extracting information from Number Nine was difficult was also unrelated to the race of the juror. It thus fell to the trial court to decide whether these evanescent "reasons” were pretextual, so long as it did not relieve the People of the ultimate burden of persuasion in this regard. There is no claim or basis to conclude on this record that either party was restricted specifically or by the process employed from making full and complete arguments and submissions.

As to the two jurors still at issue at our stage of this matter, the trial court’s finding of pretext, as reviewed and affirmed by the Appellate Division, suffers no fatal impediment. While defendant’s purported reason for challenging juror Number Eight was his long-term residence in one Brooklyn neighborhood, he did not challenge at least two other long-term residents of specific neighborhoods. Similarly, juror Number Nine was not the only juror whose responses made it difficult to elicit information (see, People v Allen, supra, 86 NY2d, at 110 [uneven application of strikes "is among the factors we have identified as raising an inference of discrimination”]). Thus, the trial court’s decision to rule directly on the step three aspect in this case — in contrast to the gaps in the other two cases decided today — may not be said to be incorrect as a matter of law under these circumstances. We conclude that this is a case with a sufficient record base allowing appellate approbation of reasonable trial court procedural discretion.

B.

Defendant’s proffered reason in People v Jones for striking juror Number Six — that the juror’s wife was a legal secretary — is facially race neutral. As defendant has abandoned his challenge to juror Number Two on this appeal, we need not consider the race neutrality of that strike. The defense thus met its responsive burden of production as to juror Number Six, requiring the trial court to make the ultimate determination of discrimination based on the People’s burden of persuasion as to pretext at step three.

The defense, however, proffered its race-neutral reasons at step two in response to the court’s command to articulate "non-pretextual” reasons for the challenges. The trial court’s premature and summary compaction of steps two and three shifted the ultimate burden of persuasion and, thus, is crucially distinguishable from People v Payne. By its merger of the step two and three requirements, the trial court here skewed and squeezed the process into a functional bypass of the key, final protocol we have put in place.

The Appellate Division order sustaining the trial court’s ruling, therefore, cannot be upheld. Because the trial court is in a position on remittal to complete the protocols, we remit to Supreme Court, Kings County, for such proceedings as are necessary to satisfy all the requirements. If these requirements are not satisfied, the judgment of conviction should be vacated and a new trial ordered, but if the court is again satisfied that the reasons were a pretext for racial discrimination, the judgment of conviction should be amended to show that result (see, People v Hawthorne, 80 NY2d 873, 874; People v Bolling, 79 NY2d 317, 325).

C.

As with People v Jones and in coptrast to the circumstances and developments in People v Payne, the trial court in People v Lowery lapsed into a procedural error. When it erroneously ruled that the defendant’s proffered reason for excluding juror Number Three was not race neutral, the court then entirely and functionally eliminated step three from the Allen three-step protocol. Plainly, defendant’s reason — that the juror was from Bay Ridge and a high school teacher — did not on its face implicate the juror’s race. Importantly, the step two requirement is a burden of production. Defendant satisfied that burden here, but the trial court neither considered the People’s burden of persuasion nor did it even rule on pretext. The flaw in this case reflects a complete gap in the interlocking procedural mechanism and safeguards this Court has promulgated.

The Appellate Division’s attempt to cure that lapse is unavailing, so we remit to Supreme Court, Kings County, for that court to make a step-three determination regarding whether the race-neutral reason proffered by defendant was pretextual. If the court finds that it was, the judgment of conviction should be amended to show that result. If, however, the court finds the reason to be nonpretextual, the judgment of conviction should be vacated and a new trial ordered (see, People v Hawthorne, supra, 80 NY2d, at 874; People v Bolling, supra, 79 NY2d, at 325).

D.

Our holdings and goal in deciding these cases by complementary application and analysis are designed to illustrate and emphasize this Court’s insistence on the uniform principles and procedures. This view also reflects a realistic recognition that so long as procedural burdens and record-making opportunities and manifestations are fulfilled and evident, specific trial courts’ handling of this procedure in variable and complex circumstances can satisfy appellate scrutiny.

The trial court in People v Payne sufficiently maintained the defense obligation of proffering race-neutral reasons at step two and then found pretext, with enough record support, without ever relieving the prosecution of its ultimate burden in that regard. Ruling that way at the conclusion of step two did not dispense with the People’s ultimate burden of persuasion as to step three. Thus, we discern no legal basis to displace that determination. For the reasons already explained, however, the orders in People v Jones and People v Lowery should be modified and the cases conditionally remitted, because the procedural deficits leave doubt that the ultimate protocols were followed or satisfied.

Accordingly, in People v Payne, the order of the Appellate Division should be affirmed; in People v Jones and People v Lowery, the orders of the Appellate Division should be modified and the cases should be conditionally remitted for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

In People v Payne: Order affirmed.

In People v Jones and People v Lowery: Order modified by remitting to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . In Lowery, the Trial Judge stopped at step two and wrongly stated that the proffered reason for the challenge was not race neutral. Thus, unlike Payne and Jones, it cannot be said that "the trial court [had] ruled on the ultimate question of intentional discrimination” (Hernandez v New York, supra, 500 US, at 359). In Lowery, then, the issue of whether the People established a prima facie inference of purposeful discrimination by the defendant would be implicated, had it been properly preserved. Defendant’s general objection, however — "to this whole procedure” — did not adequately preserve this question for this Court’s review, because counsel did not state the ground for the objection or argue that the People had failed to establish a prima facie case (CPL 470.35 [1]; 470.05 [2]; see, People v Robinson, 36 NY2d 224, 228).

      . We do not accept the proposition that the potential association of a juror’s neighborhood generally with members of one race or ethnicity is a race-related factor, per se, for purposes of the application of these protocols. That kind of potential geographical or neighborhood linkage may, however, be a factor ultimately to be weighed into the determination whether a proffered reason is pretextual.