source: Caselaw Access Project

author: Pigott, J. Smith, J. (concurring). Jones, J. (dissenting).

license: Public Domain

text:
    [921 NE2d 570, 893 NYS2d 803]
    The People of the State of New York, Respondent, v Matthew Sanchez, Appellant. The People of the State of New York, Respondent, v Larry Mynin, Appellant.
    Argued October 21, 2009;
    decided December 1, 2009

      POINTS OF COUNSEL

      Dershowitz, Eiger & Adelson, EC., New York City (Nathan Z. Dershowitz, Amy Adelson and Daniela Elliott of counsel), for appellant in the first above-entitled action.
    I. The jury charge on gang assault was erroneous as a matter of law. (People v Hedgeman, 70 NY2d 533; People v Ledwon, 153 NY 10; People v Bennett, 49 NY 137; People v Gray, 86 NY2d 10; People v Jean-Baptiste, 38 AD3d 418; People v Kleingartner, 183 Misc 2d 771; People v Hampton, 92 AD2d 490, 61 NY2d 963; People v Coleman, 5 AD3d 956; People v Green, 126 AD2d 105, 71 NY2d 1006; People v Harris, 271 AD2d 258.) II. The evidence was insufficient because there were only two participants in the assault on Herbert Griffin and because Matthew Sanchez did not cause Griffin’s serious physical injury. (People v Hedgeman, 70 NY2d 533; People v Coleman, 5 AD3d 956; People v Fallon, 78 AD2d 659; People v Fowler, 31 AD3d 784; People v Maldonado, 11 AD3d 114; People v Wright, 189 AD2d 612; People v Kleingartner, 183 Misc 2d 771; People v Santos, 14 AD3d 411; People v Villanueva, 35 AD3d 229; People v Fatal, 187 Misc 2d 334.) III. The court erred in allowing the prosecutor to cross-examine Matthew Sanchez and his character witness about Sanchez’s history at the United States Naval Academy at Annapolis, and in charging the jury that it could consider that history in evaluating Sanchez’s credibility. (People v Lediard, 80 AD2d 237; People v Brinkworth, 112 AD2d 799; People v Sandoval, 34 NY2d 371; People v Bilanchuk, 280 App Div 180; People v Perez, 40 AD3d 1131; People v Jarrells, 190 AD2d 120; People v

      Randolph, 18 AD3d 1013.) IV The conviction should be vacated because the People committed numerous Rosario violations, and the court’s remedy—a watered down “adverse inference” charge—did not cure the prejudice. (People v Rosario, 9 NY2d 286; People v Kelly, 62 NY2d 516; People v Wallace, 76 NY2d 953; People v Martinez, 71 NY2d 937; People v Joseph, 86 NY2d 565; People v Davis, 18 AD3d 1016.)

      Robert M. Morgenthau, District Attorney, New York City (Gina Mignola and Amyjane Rettew of counsel), for respondent in the first above-entitled action.
    I. The court correctly charged the jury that, to convict defendant of gang assault, an “aider” need not share the mental culpability of a full-fledged accomplice. (People v Green, 126 AD2d 105, 71 NY2d 1006; People v Hampton, 61 NY2d 963; People v Fowler, 31 AD3d 784; People v Maldonado, 11 AD3d 114; People v Harrison, 141 AD2d 842; People v Ward, 107 AD2d 892; People v Mynin, 58 AD3d 581, 12 NY3d 857; People v Fallon, 78 AD2d 659; People v Coleman, 5 AD3d 956; People v Munroe, 190 NY 435.) II. Defendant’s unpreserved miscellaneous claims about the court’s charge and the sufficiency of the proof have no merit. (People v Casmento, 155 AD2d 229; People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10; People v Jean-Baptiste, 38 AD3d 418; People v Hines, 97 NY2d 56; People v Ford, 11 NY3d 875; People v Finger, 95 NY2d 894; People v Lawrence, 85 NY2d 1002; People v Tucker, 55 NY2d 1; People v Wilkerson, 189 AD2d 592.) III. Defendant’s remaining contentions are not properly before the Court and are entirely without merit. (People v Sandoval, 34 NY2d 371; People v Sorge, 301 NY 198; People v Walker, 83 NY2d 455; People v Canty, 60 NY2d 830; People v Pollock, 50 NY2d 547; People v Williams, 12 NY3d 726; People v Hayes, 97 NY2d 203; People v Bilanchuk, 280 App Div 180; People v Coleman, 56 NY2d 269; People v Perez, 40 AD3d 1131.)

      Office of the Appellate Defender, New York City (Alexis Agathocleous and Richard M. Greenberg of counsel), for appellant in the second above-entitled action.
    The trial court erroneously responded to a jury inquiry by stating that a single defendant could be convicted of gang assault without the conviction of his alleged accomplices, particularly where it also instructed the jury that the case was governed by the accessorial liability standard. (People v Sanchez, 57 AD3d 1; People v Coleman, 5 AD3d 956; People v Hicks, 134 AD2d 909; People v Ward, 107 AD2d 892; People v Fallon, 78 AD2d 659; People v Munroe, 190 NY 435; People v Maldonado, 11 AD3d 114; People v Hampton, 92 AD2d 490, 61 NY2d 963; People v Green, 126 AD2d 105; People v Alfaro, 66 NY2d 985.)

      Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for respondent in the second above-entitled action.
    The trial court properly charged that defendant could be convicted of gang assault even if those who aided him in the assault did not share his intent to cause physical injury. Moreover, the verdict as to the various defendants was not inconsistent, and was not in any way at odds with the court’s charge on accomplice liability. (People v Finnegan, 85 NY2d 53, 516 US 919; People v Ryan, 82 NY2d 497; People v Sanchez, 57 AD3d 1; People v Green, 126 AD2d 105, 71 NY2d 1006; People v Harrison, 141 AD2d 842; People v Ward, 107 AD2d 892; People v Hampton, 61 NY2d 963; People v Munroe, 190 NY 435; People v Maldonado, 11 AD3d 114; People v St. Paul, 3 AD3d 604.)
   OPINION OF THE COURT

Pigott, J.

These appeals involve New York’s “gang assault” statutes, which apply when a person, who intends to cause “physical injury” to another, causes that person or a third person “serious physical injury” and is “aided by two or more other persons actually present” (Penal Law §§ 120.06, 120.07). At issue in these cases is whether the two or more persons who provide aid must also share the criminal intent of the defendant. We find that the statutes’ language and history establish that they do not.

People v Sanchez

On New Year’s Eve 2004, at a bar on Second Avenue in Manhattan, the owner, Liam McCormack, announced “last call” and turned up the lights to encourage the patrons to leave. Shortly before that time, Herb Griffin, a police detective and a friend of McCormack’s, had arrived.

McCormack placed his keys in the door and, as patrons left, unlocked and then relocked the door. Defendant, along with codefendants Anthony Amitrano and Nenad Jurlina, left the bar. McCormack would not let defendant leave with a drink and, after some resistance, defendant handed his drink to him. Shortly thereafter, McCormack noticed that his keys were gone from the door. A man outside observed defendants take the keys and told McCormack what had happened. McCormack ran after them. Griffin went to help McCormack, who was about a block and a half ahead.

When McCormack caught up to the men, an altercation ensued. According to McCormack, he asked for his keys back and defendant threw them at his face. In response, McCormack punched defendant in the mouth.

Griffin finally caught up. He saw that McCormack had his keys, and said they should get out of there. As they walked away, a bottle was thrown from behind McCormack and Griffin and broke next to them. They turned around, and defendants came towards them.

Amitrano went towards McCormack, while defendant and Jurlina approached Griffin. Defendant punched Griffin in the face. Griffin dropped to the ground and tried to protect himself but was then beaten, punched and kicked by defendant and at least one other. McCormack was also attacked by at least two of the men.

The police arrived at the scene. Defendant and Jurlina were immediately arrested. Amitrano was told to go home, but was eventually arrested. Both McCormack and Griffin were injured; Griffin the more seriously, suffering fractures to the skull and face.

Defendant and his codefendants admitted that they were involved in the altercation, but claimed they were innocent victims of unprovoked violence by McCormack and Griffin. Two witnesses who observed the fight, however, testified that McCormack and Griffin tried to get away and neither of them fought back.

Defendants were indicted for gang assault in the first degree (Penal Law § 120.07) and attempted gang assault in the first degree (Penal Law §§ 110.00, 120.07). At trial, there was considerable debate over the jury instructions as they pertained to the gang assault charge. Defendant took the position that each of the two aiding persons must also be an accomplice who shared the principal’s specific criminal intent. He also asserted that, if the jury acquitted any defendant, that defendant could not be considered an “aider” of the other two. To the defense, an acquittal of one was an acquittal for all three as to gang assault. In response, the People argued that every defendant is responsible for his own mens rea, so that an individual defendant’s guilt should turn on his own mental state, and not that of the persons who aided him. The judge adopted the People’s view and instructed the jury:

“Actually present is exactly the same, a person is actually present when such person is in a position to render immediate assistance to a person participating in the assault and is ready, willing and able to do so irrespective of whether such person intended to cause physical injury.
“Because of this definition of actually present, even if you find an individual defendant not guilty of this crime, because the People have not proven beyond a reasonable doubt that he had the intent required for the commission of the crime, you can still find another defendant or defendants guilty if you find that the not guilty defendant was actually present as [the court] defined that term and that all the elements of the crime are proven by the People beyond a reasonable doubt” (emphasis added).

During deliberations, the court reiterated its position while responding to two jury notes, stating:

“If [the jurors] find that the People have proven beyond a reasonable doubt each of the elements of Gang Assault in the First Degree, as to a particular defendant then the fact that two men were on Griffin and one on McCormack can constitute Gang Assault in the First Degree.”

The jury acquitted all three defendants of first-degree gang assault, but convicted defendant and Jurlina of gang assault in the second degree. The jury acquitted Amitrano of any conduct relating to Griffin, and convicted him of misdemeanor assault in the third degree relating to McCormack. Defendant was sentenced to eight years’ imprisonment with five years’ post-release supervision.

On defendant’s appeal, the Appellate Division modified his sentence in the exercise of discretion to six years and otherwise affirmed (57 AD3d 1 [1st Dept 2008]). The court held that the jury was correctly instructed that an acquittal of one of the three defendants of all charges relating to one victim would not require that the other two defendants be acquitted of the gang assault charges as to that victim (id. at 5-7). The court further held that there was record support for the jury’s conclusion that Amitrano, while “actually present” at the scene, “aided” the assault on Griffin by defendant and Jurlina, “even if the jury also concluded that Amitrano was not himself guilty of participating in the assault on Griffin either as a principal or as an accomplice” {id. at 10). The court noted that Amitrano was convicted of assaulting McCormack, and that by “taking McCormack out of commission, Amitrano prevented McCormack from helping Griffin or otherwise thwarting Sanchez’s attack on Griffin” {id.).

A Judge of this Court granted defendant leave to appeal (12 NY3d 762 [2009]).

People v Mynin

In August 2005, defendant and three other men drove to 151st Street in Manhattan to purchase $1,600 worth of marijuana. Darnell Moore took their money and returned with fake marijuana. Defendant detected the fraud and challenged Moore. A struggle ensued between Moore, defendant and the three men, which involved their attempt to get Moore into the vehicle. During the struggle, Moore was fatally shot, the bullet penetrating his chest and several vital organs. Defendant and the three men were chased down by the police. Just before the stop, someone in the car threw out the pistol that had been used to kill Moore, but the police recovered it. At the precinct, defendant told the police that he and his three companions had attacked Moore “looking for the money” and that the gun “went off.”

Defendant was indicted for attempted kidnapping in the first degree, felony murder in the second degree, and gang assault in the second degree. Indicted on the same charges were the other men involved in the incident. The case against the defendants was tried twice. The first jury was unable to reach a verdict on any count as to any of the defendants, and a mistrial was declared in June 2006. In January 2007, the case was retried.

At the beginning of the court’s jury charge, the court instructed the jury generally on accomplice liability. As it pertained to the gang assault charge in particular, the judge instructed the jury:

“A person is guilty of gang assault in the second degree, when with intent to cause physical injury to another person, and when aided by two or more other persons actually present, he causes at least serious physical injury to such person.
“In order to find a defendant guilty of this crime, the People must prove beyond a reasonable doubt each of the following three elements:
“First, that on or about August 25th, 2005 in the county of New York the defendant or a person with whom he was acting in concert caused serious physical injury to Darnell Moore. . . .
“The second element is that the defendant himself, that is the defendant whose liability you are considering, acted with the intent to cause at least physical injury to Darnell Moore. . . .
“The third element is that defendant was aided by two or more persons actually present. This is separate from my general instructions on acting in concert. This is an element of this charge that the defendant was aided in some way by two or more persons actually present.
“A person is actually present when he’s in a position to render immediate aid to a person participating in the assault and is ready, willing, and able to do so” (emphasis added).

During deliberations, the jury returned a note asking if “fewer than three people [can] be convicted on a charge of gang assault.” Defense counsel argued that each defendant must have the intent to cause physical injury, so at least three would need to be convicted. The prosecutor argued, by contrast, that fewer than three people could be convicted under the statute because an individual may provide aid but not have the particular intent required by the gang assault statute. The court agreed with the People and instructed the jury that fewer than three people could be convicted on a charge of gang assault.

The jury returned another note asking, “Do you need three or more defendants to have intent to cause physical injury or does just one defendant have to have the intent plus two or more others that aid but don’t have intent to cause physical injury?” After some more discussion between the attorneys, the court instructed the jury that “you do not need three or more defendants to have intent to cause physical injury.”

The juiy acquitted all of the codefendants on all of the charges and acquitted defendant of both felony murder and attempted kidnapping. Defendant was convicted of a single count of gang assault in the second degree.

On defendant’s appeal, the Appellate Division affirmed (58 AD3d 581 [1st Dept 2009]). As relevant to this appeal, the court held that Supreme Court correctly instructed the jury that in order to convict a defendant of gang assault it was not obligated to convict any other defendants of that crime, and that a person may be “aided by two or more other persons actually present” even if those persons lack the mental culpability to be guilty as accomplices under Penal Law § 20.00 (id. at 582). It further held that “[t]he court’s instructions, viewed as a whole, properly distinguished between the concepts of ‘aiding’ and ‘acting in concert,’ and were not confusing” (id.).

The court found that defendant did not preserve his contention that the verdict finding him guilty of gang assault while acquitting all the codefendants was repugnant, and declined to review it in the interest of justice (id.). As an alternative holding, the court also rejected it on the merits (id.). The court held that Supreme Court’s charge clearly permitted the mixed verdict at issue (id.). Furthermore, the court found that

“the fact pattern permitted the jury to conclude that the codefendants, who were ‘actually present’ at the scene, ‘aided’ defendant’s assault of the victim for purposes of satisfying the gang assault statute, even if the codefendants were not themselves guilty of participating in the assault either as principals or as accomplices. Moreover, the jury could have found that there were multiple participants, while also finding, ‘however illogically,’ ... a lack of proof of the identity of the particular codefendants as being those participants” (id., citing People v Maldonado, 11 AD3d 114, 118 n [1st Dept 2004], Iv denied 3 NY3d 758 [2004]).

A Judge of this Court granted defendant leave to appeal (12 NY3d 857 [2009]).

Analysis

The law making “gang assault” a crime was enacted in 1996 and contains two degrees of severity (L 1996, ch 647, § 2). Gang assault in the first degree is defined as follows: “A person is guilty of gang assault in the first degree when, with intent to cause serious physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person” (Penal Law § 120.07). Gang assault in the second degree is defined identically, except that it requires the accused to act with the lesser intent to cause physical injury: “A person is guilty of gang assault in the second degree when, with intent to cause physical injury to another person and when aided by two or more other persons actually present, he causes serious physical injury to such person or to a third person” (Penal Law § 120.06).

Both crimes require that the defendant be “aided by two or more other persons actually present” and the proper interpretation of that phrase is the core issue on this appeal.

The gang assault statutes were modeled in part on the crime of robbery in the second degree (Penal Law § 160.10 [1]). In particular, the element of “aided by two or more other persons actually present” is taken from the current robbery statute, which requires the defendant to be “aided by another person actually present” (see Penal Law § 160.10 [1]).

The robbery statute once required that the defendant be “aided by an accomplice actually present.” (Penal Law of 1909 § 2124 [2].) That requirement was revised when the Legislature replaced the word “accomplice” with the phrase “another person” (see Penal Law § 160.10 [1]). The deliberate revision to the robbery statute has been viewed by some courts, including the Appellate Division in Sanchez, as showing a clear intention by the Legislature to establish that for the crime of robbery, the aider need not share the specific intent and mental culpability required for accomplice liability (see also People u Green, 126 AD2d 105, 106 [2d Dept 1987] [concluding that “oné may aid in the commission of a robbery within the meaning of Penal Law § 160.10 (1) without engaging in conduct sufficient to support a finding of guilt on the basis of accessorial liability”]). In other words, a defendant can be found guilty of the crime of robbery in the second degree even when his codefendant is acquitted.

This Court, analyzing the language “aided by another person actually present” in the robbery statute, has held that “constructive presence” is insufficient to sustain a conviction (People v Hedgeman, 70 NY2d 533 [1987]). In People v Dennis (75 NY2d 821 [1990]), we further explained that when another person is in a position to render immediate assistance to the defendant, his or her presence poses a sufficient risk of additional violence, so as to satisfy the element of another person “actually present.”

Thus, for the purposes of the element “another person actually present” in the robbery statute, the other person must actuálly be present, at least in the immediate vicinity of the crime, and be capable of rendering immediate assistance to an individual committing the crime. The interpretation of the robbery statute is equally applicable to the similarly worded gang assault statutes.

Before anything else, we must look to the language of the gang assault statutes. Each statute, on its face, speaks only to the intent of the defendant and not to his aiders. No particular mental state is expressly required of those who comprise the gang. They must simply be present and render aid to the defendant. The Legislature did not provide that they must share defendant’s intent to cause physical injury.

This interpretation is also supported by the legislative history of the statutes, which reveals that the purpose of the gang assault crime was “to enhance public safety ... in recognition of the severity of assaults committed by gangs” (Governor’s Program Bill Mem, at 1, Bill Jacket, L 1996, ch 647, at 6, 1996 NY Legis Ann, at 476). Gang assaults, particularly by youths, had been increasing, and such assaults “pose a greater threat to public safety than assaults committed by individual actors” (Governor’s Mem approving L 1996, ch 647, 1996 McKinney’s Session Laws of NY, at 1919). The Governor’s supporting memorandum noted that “the joint action of numerous assailants is not only terrifying to victims but tends to increase the likelihood that severe or lethal injuries will be inflicted” (Governor’s Program Bill Mem, at 2, Bill Jacket, L 1996, ch 647, at 7, 1996 NY Legis Ann, at 476-477). The Governor’s supporting memorandum recognized “that to commit an assault with the aid of others is tantamount to committing an assault by means of a deadly weapon or dangerous instrument” (id.).

Thus, one of the primary purposes of the crime of gang assault was to recognize that when a victim is confronted by a group of individuals, rather than one individual, he or she is confronted with a more threatening, intimidating and dangerous situation that increases the possibility of escalating violence and physical harm (see Hedgeman, 70 NY2d at 541). That enhanced fear is present even if the “aider” does not have the same criminal intent or purpose of the defendant. So long as a person is “aiding” another to commit the crime, regardless of whether that aid is rendered with the intent to cause physical injury, the victim is still facing a more threatening scenario. In other words, even though the person may not have the intent to cause physical injury to the victim, they are still aiding the defendant for purposes of the statute by assisting defendant in causing that harm.

Even more, gang assaults are often spontaneous and frenzied events undertaken by a number of individuals, many of whom may never be identified. They are dangerous precisely for their chaotic nature. Therefore it makes sense for the Legislature to require the People to prove only that the charged defendant, not other participants in the assault, had the requisite criminal intent to cause physical injury.

Thus, we hold that a defendant can be found guilty of gang assault, if he or she acts with the requisite mens rea and aid, even if one or more of the persons who aid do not share his or her intent to cause physical harm. Contrary to the dissent’s suggestion, we do not hold today that no mens rea is required of an aider. The only issue presented by defendants is whether the persons who provide aid must share the mental culpability of defendant. We thus have no occasion to define the exact intent needed, if any, of the persons aiding the defendant. We now turn to each particular case.

People v Sanchez

The court properly instructed the jury that for the gang assault charge, the defendant may be found guilty if he acts with the intent to cause physical injury, whether or not those who aided him in the assault shared the same intent.

Viewing the evidence in the light most favorable to the People, it was reasonable for the jury to conclude that Amitrano and Jurlina aided the defendant in the commission of the gang assault on Griffin. There was some evidence at trial that both Amitrano and Jurlina actually joined in on the assault of Griffin. In that way, both Amitrano and Jurlina aided in the assault. Even if Amitrano did not attack Griffin, he attacked McCormack and prevented McCormack from intervening in defendant’s attack on Griffin. This provided an additional basis for the jury to find that Amitrano was acting in aid of defendant’s effort to injure Griffin. Accordingly, the jury was entitled to find that both Amitrano and Jurlina aided defendant in his commission of the gang assault.

We find no merit to defendant’s remaining contentions.

People v Mynin

Defendant claims that the jury instruction was erroneous because, along with the gang assault charge, the judge instructed the jury that the case was governed by the accessorial liability standard.

The accomplice liability rules charged by the court were undisputedly relevant to the other counts against defendant. They were also relevant on the gang assault count as the jury could consider whether any of defendant’s actions could be attributed to the codefendants who shared the intent to harm Moore. Furthermore, the judge explained to the jury that on the gang assault count, the jury was to consider the intent of the particular defendant. And when answering the jury notes, the judge clarified to the jury that the People need not prove that the other persons present and aiding defendant acted with the intent to cause physical injury. Thus, we find no error with the charge to the jury.

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

Smith, J. (concurring).

I join the majority opinion, but write separately to express my view on a question that opinion does not reach: whether any mens rea is required of an “aider” in a gang assault (see majority op at 566). I would answer that question yes. While the aider need not share the intent of the defendant, an innocent bystander—for example, one who inadvertently blocks the victim’s path of escape—could not, in my view, be an aider. The Appellate Division opinion in People v Green (126 AD2d 105 [2d Dept 1987], affd 71 NY2d 1006 [1988]) and the dissenting opinion of Justice Silverman in People v Hampton (92 AD2d 490, 492 [1st Dept 1983], affd 61 NY2d 963 [1984]) suggest that the minimum mental state required of an aider should be that described in Penal Law § 115.00 (1), which says that a person commits criminal facilitation in the fourth degree when he acts “believing it probable that he is rendering aid . . . to a person who intends to commit a crime.” I would not uphold a conviction for gang assault where the alleged aiders did not have at least that much culpability.

In the cases now before us, neither defendant asked the court to charge in the language of Penal Law § 115.00 (1). The charges that were given, however, did not permit the juries to convict defendants if the alleged aiders had no mens rea at all. In each case, the charge told the jury that an aider would not be “actually present” unless he were “ready, willing and able” to help defendant commit the crime. Willingness to help is a more culpable mental state than the mere belief that one is probably helping, and thus each of these defendants received a more favorable charge than I think he was entitled to.

Jones, J. (dissenting).

I respectfully dissent and would reverse the orders of the Appellate Division. Both trial courts erred in not instructing the jury to make a finding that the persons who “aided” and were “actually present” had any degree of mental culpability. In my view, the gang assault statutes, sections 120.06 and 120.07 of the Penal Law, require that all members involved in the assault have the specific intent to cause physical injury—the lowest degree of mental culpability applicable to the crime of assault in any degree (see Penal Law art 120).

The gang assault statutes, which were added by the Laws of 1996, specifically recognize the danger posed by group assaults. The stated purpose of this legislation was “to enhance public safety by creating two assault crimes, gang assault in the first and second degrees, in recognition of the severity of assaults committed by gangs” (Senate Introducer’s Mem in Support, at 1, Bill Jacket, L 1996, ch 647, at 6). Penal Law §§ 120.06 and 120.07 created more severe penalties, class B and C violent felonies, when assaults were committed by a person while “aided by two or more other persons actually present.”

There is no dispute that an enhanced punishment is warranted because of the greater potential for harm and fear engendered by a group assault. Nevertheless, I do not agree that this crime is committed by a defendant when the persons who aided in the offense have no criminal intent—the position taken by the majority and the prosecution. My view is supported by the legislative history of the statutes (Governor’s Program Bill Mem, at 2, Bill Jacket, L 1996, ch 647, at 7, 1996 NY Legis Ann, at 476 [In the bill sponsor’s statement in support, it was noted that gang assaults are serious crimes, warranting enhanced punishment, because the “joint (or ‘shared’) action of numerous assailants is not only terrifying to victims but tends to increase the likelihood that severe or lethal injuries will be inflicted”]).

Moreover, the crime of gang assault must adhere to the basic principles of culpability defined in Penal Law § 15.05. It is axiomatic that culpable mental states must be proven together with an “actus reus” in order to constitute a crime. Further, the statutory mandate of Penal Law § 15.05 cannot be ignored by implication. In order to negate the requirement of mental culpability the Legislature would have to specifically include language in the statute and so declare (see e.g. Alweis v Evans, 69 NY2d 199, 204 [1987]).

Thus, the culpable mental states provided under the Penal Law cannot be presumed to have been written out of the gang assault statutes. To hold otherwise would subject a defendant to the enhanced level of assault without proof that the two or more other persons committed any act or had the appropriate mens rea to be convicted of any criminal offense. In other words, a defendant could be convicted of gang assault merely because there were uninvolved bystanders in the area or unwitting aiders.

Relying on the Appellate Division decision in People v Green (126 AD2d 105 [2d Dept 1987], affd on other grounds 71 NY2d 1006 [1988]), the majority takes the position that a person can be found guilty of gang assault when aided by another actually present even though that other person lacked any mental culpability. Green relies on the 1965 amendment to the robbery in the second degree statute in which the requirement that the aider be an “accomplice” (i.e., one with the same mental culpability as the primary actor) was replaced with the language “another person actually present” (Penal Law § 160.10 [l]). The majority seems to conclude that the change in statutory language did away with the requirement that those charged with aiding need not have any mental culpability. In other words, if the primary actor had the necessary mental culpability it does not matter that a person alleged to be aiding and actually present had no culpable mental state. In discussing the statutory revision, however, the Green court stated as follows: “We find this revision significant and believe that it reflects an intention by the Legislature to permit a much lesser degree of mental culpability to constitute aid under this robbery statute” (Green, 126 AD2d at 110 [emphasis added]). By this language the court did not eliminate the requirement of a culpable mental state. Indeed, the court points out that all of the parties need not have the same degree of mental culpability, but should have the mental culpability appropriate to the commission of the underlying crime. In this respect, Green is not inconsistent with my position.

To the extent that Green suggests that the minimum culpable mental state required of an aider should be that of a person who commits criminal facilitation in the fourth degree (Penal Law § 115.00 [1]), I disagree. Criminal facilitation “is addressed to a kind of accessorial conduct in which the actor aids the commission of a crime with knowledge that he is doing so but wdthout any specific intent to participate therein or to benefit therefrom” (Staff Notes of Temp St Commn on Rev of Penal Law and Grim Code, 1964 Proposed NY Penal Law [Study Bill, 1964 Senate Intro 3918, Assembly Intro 5376] art 115, at 328). Such conduct is generally “confined to preparation so attenuated from the final stages that the role of the facilitator is only remotely related as a cause or contributor to the ultimate crime” (People v Beaudet, 32 NY2d 371, 377 [1973]). Thus, contrary to the presence requirement of the aiders under the gang assault statutes, most persons charged with criminal facilitation are not present at the scene of the crime being facilitated. This point alone renders the offense of criminal facilitation inapplicable to the questions now before this Court. Based on the foregoing, the majority’s and concurrence’s reliance on Green is misplaced.

The case that most accurately addresses the main issue before this Court is People v Coleman (5 AD3d 956, 958 [3d Dept 2004]). In Coleman, the court held that where a person is charged with robbery in the second degree, the person “aiding” must have “intent to aid . . . [in] stealing.” That is, there needs to be a “shared intent” by two persons when one is charged with second-degree robbery. Likewise, where a defendant is charged with gang assault, he/she must have a shared intent with the aiders. I now consider the cases before us.

In Sanchez, the trial court instructed the jury as follows:

“[A] person is actually present when such person is in a position to render immediate assistance to a person participating in the assault and is ready, willing and able to do so irrespective of whether such person intended to cause physical injury.
“Because of this definition of actually present, even if you find an individual defendant not guilty of this crime, because the People have not proven beyond a reasonable doubt that he had the intent required for the commission of the crime, you can still find another defendant or defendants guilty if you find that the not guilty defendant was actually present as I defined that term and that all the elements of the crime are proven by the People beyond a reasonable doubt.”

These instructions were improper because under them, the jury could convict defendant of gang assault based solely on another defendant’s presence. Stated differently, the Sanchez court instructed the jury that it could find a defendant guilty even if the other persons charged in the gang assault were found not guilty by reason of having no mental culpability. Moreover, the trial court’s inclusion of the “ready, willing and able” language in the context of a criminal case is troubling in a number of respects. First, this language is typically used as a contract term, such as in a property conveyance. Second, and more significantly, using the “ready, willing and able” language to “instruct” a jury ensures a hopelessly indefinite charge because it contains no objective standard by which an alleged aider’s conduct can be assessed. Without an objective standard, absurd results may occur. Thus, the Sanchez court’s charge amounts to reversible error.

In Mynin, the trial court first instructed the jury on accomplice liability. The court stated: “To be criminally responsible as a person acting in concert with another person, the defendant must intentionally aid in the commission of the crime and act with the requisite culpable mental state for that offense.” The court then instructed the jury on gang assault in the second degree, informing the jury that the instruction on gang assault was separate from its charge on acting in concert. In particular, the trial court stated that (1) the third element of gang assault in the second degree is that defendant was aided by two or more persons actually present and (2) defendant could be convicted even if his aiders were found to have no mental culpability.

The Mynin court’s instructions were clearly improper. Not only did the court give an incorrect charge regarding the mental culpability of aiders in a gang assault case, the Mynin instructions were confusing and contradictory (as evidenced by the numerous jury notes seeking clarification on the number of participants, whether all participants must have “shared intent,” and what constitutes “aiding” versus “acting in concert”).

In short, the trial courts in both Sanchez and Mynin erred when, among other things, they instructed the jury that it could find a defendant guilty even if the other persons charged in the gang assault were found not guilty by reason of having no mental culpability.

Further, the acquittal of the codefendants in Mynin effectively eliminated the “aided” requirement of the gang assault statutes and made it impossible to convict the remaining defendant of gang assault. The statutes unequivocally provide that at least three persons be involved in a gang assault. Therefore, one person may not be found singularly guilty of a crime which requires the participation of at least three (see e.g. People v Palmer, 135 AD2d 1103 [4th Dept 1987]; People v Fallon, 78 AD2d 659 [2d Dept 1980]).

Finally, if the majority’s position is (1) they have not held “that no mens rea is required of an aider” and (2) they “have no occasion to define the exact intent needed” (majority op at 566), not only has the majority failed to provide guidance to the trial courts and bar as to the precise mental culpability of aiders in a gang assault context, they have not addressed the above stated deficiencies in the Sanchez and Mynin instructions.

For all of the foregoing reasons, both of these convictions should be reversed.

Judges Graffeo, Read and Smith concur with Judge Pigott; Judge Smith concurs in a separate concurring opinion; Judge Jones dissents and votes to reverse in another opinion in which Chief Judge Lippman and Judge Ciparick concur.

In each case: Order affirmed.

       Indeed, the accomplice statute expressly states that one who merely aids the commission of a crime may not be an accomplice, but instead may be guilty of a lesser offense. In particular, Penal Law § 20.10 provides:
      “a person is not criminally liable for conduct of another person constituting an offense when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto. If such conduct constitutes a related but separate offense upon the part of the actor, he is liable for that offense only and not for the conduct or offense committed by the other person” (emphasis added).

      . I agree that the gang assault statutes, and specifically the phrase “aided by two or more other persons actually present,” were modeled after the amended robbery in the second degree statute.

      . People v Hedgeman (70 NY2d 533 [1987]) and People v Dennis (75 NY2d 821 [1990]), two cases upon which the majority relies, are distinguishable from the cases at bar and, in any event, of no moment. Both cases involved robbery in the second degree and define “actually present” at the scene. In Hedgeman, this Court held that the defendant was guilty only of robbery in the third degree because the accomplice was not in proximity to the scene of the robbery. In Dennis, the defendant’s conviction of robbery in the second degree was based upon the accomplice’s testimony and the getaway driver’s near presence at the robbery. On the contrary, the common issue in Sanchez and Mynin is what is the mental culpability of the aiders.


author: Graffeo, J.

text:
    [921 NE2d 195, 893 NYS2d 503]
    NYCTL 1999-1 Trust et al., Respondents, v 573 Jackson Avenue Realty Corp., Appellant, et al., Defendants.
    Argued November 18, 2009;
    decided December 15, 2009

      POINTS OF COUNSEL

      Joseph A. Altman, EC., Bronx {Joseph A. Altman of counsel), for appellant.
    I. The lower court erred in denying defendant’s motion to vacate the sale where it complied with the requirements set forth in RPAPL 1341 (2). (Green Point Sav. Bank v Oppenheim, 237 AD2d 409; NYCTL 1996-1 Trust v LFJ Realty Corp., 307 AD2d 957; Citibank v Press Realty Corp., 139 Misc 2d 558; First Fed. Sav. & Loan Assn. of Port Washington v Smith, 83 AD2d 601; Belsid Holding Corp. v Dahm, 12 AD2d 499; United Capital Corp. v 183 Lorraine St. Assoc., 251 AD2d 400; Finance Inv. Co. [Bermuda] v Gossweiler, 145 AD2d 463; Norwest Mtge., Inc. v Brown, 35 AD3d 682; Glenbriar Co. v Lipsman, 5 NY3d 388; EMC Mtge. Corp. v Bobb, 296 AD2d 476.) II. The lower court erred in denying defendant’s motion to vacate the sale where plaintiff fraudulently induced defendant into believing that the sale had been stayed. (Bankers Fed. Sav. & Loan Assn. v House, 182 AD2d 602; Home Owners Loan Corp. v Vangerow, 277 App Div 774; Commercial Bank v Catto, 13 App Div 608.) III. The lower court erred in denying defendant’s motion to vacate the sale where the judgment of foreclosure and sale was tantamount to a judgment/order directing the “payment of a sum of money” under CPLR 5519 (a) (2). (Matter of Scott, 125 Misc 2d 1024.) IV The lower court erred in denying defendant’s motion to vacate the sale where CPLR 5519 (a) (6), assuming it applied, was also satisfied. V A judgment of foreclosure which is based upon a sum paid and includes unreasonable legal fees must be set aside and vacated. (Lazich v Lazich, 189 AD2d 750.)

      Rosicki, Rosicki & Associates, PC., Plainview {Owen M. Robinson of counsel), for respondents.
    I. The court below was correct when it determined that appellant had failed to comply with CPLR 5519 (a) (6) and therefore was not entitled to a stay of the foreclosure sale. (Copp v Sands Point Mar., 17 NY2d 291; Bank Leumi Trust Co. of N.Y. v Sibthorp, 135 AD2d 476; Sautter v Frick, 229 App Div 345, 256 NY 535; Notey v Darien Constr. Corp., 41 NY2d 1055; Wyoming County Bank & Trust Co. v Kiley, 75 AD2d 477; Pfeil v Hasselbush, 273 NY 619; Homecraft Alterations Corp. v Brill, 30 Misc 2d 514; Du Jack v Du Jack, 243 AD2d 908.) II. The court below correctly determined that appellant had failed to comply with RPAPL 1341 (2) and therefore was not entitled to a stay of the foreclosure sale. (NYCTL 1996-1 Trust v LFJ Realty Corp., 307 AD2d 957; Bankers Fed. Sav. & Loan Assn. v House, 182 AD2d 602; EMC Mtge. Corp. v Bobb, 296 AD2d 476; Green Point Sav. Bank v Oppenheim, 237 AD2d 409; Abley Props., Inc. v Reid, 9 Misc 3d 1107[A], 2005 NY Slip Op 51438[U]; City of New York v Nelson, 309 NY 94; City of New York v Jackson-140 Realty Corp., 279 App Div 668; City of Peekskill v Perry, 272 App Div 940; Village of Ossining v Lakin, 5 Misc 2d 1024; Finance Inv. Co. [Bermuda] v Gossweiler, 145 AD2d 463.) III. The court below was correct when it exercised its discretion not to invalidate the foreclosure sale. (Guardian Loan Co. v Early, 47 NY2d 515; Bank of NY. v Sheik, 279 AD2d 440; Dime Sav. Bank of N.Y. v Zapala, 255 AD2d 547; Water St. Leasehold LLC v Deloitte & Touche LLP, 19 AD3d 183, 6 NY3d 706; Laub v Faessel, 297 AD2d 28; Mobil Oil Corp. v Joshi, 202 AD2d 318.) IV It was within the discretion of the trial court below to award legal fees to plaintiff in this tax lien foreclosure and the Appellate Division was correct in affirming the award.
   OPINION OF THE COURT

Graffeo, J.

In this action to foreclose a real property tax lien, we conclude that the property owner did not properly stay the foreclosure sale nor did it exercise its right to redeem. We therefore affirm the order of the Appellate Division.

Defendant 573 Jackson Avenue Realty Corp. (Jackson) failed to pay certain real property taxes on its property located in the Bronx. In May 1999, plaintiff NYCTL 1999-1 Trust (the Trust) acquired a tax lien against the property in the amount of $2,412.75 from the City of New York. Nearly three years later, Jackson paid that amount to the Trust. The lien was not discharged, however, because the statutory interest that had accrued in the interim remained unpaid.

The Trust and the Bank of New York, as collateral agent and custodian for the Trust, then commenced this action against Jackson to recover the balance owed, including interest and attorneys’ fees. Following motion practice not relevant here, Supreme Court granted summary judgment in favor of the Trust and appointed a referee to calculate the total amount owed. After the referee’s report was issued, the Trust moved to confirm the report and sought a judgment foreclosing the tax lien. Supreme Court granted the motion and awarded the Trust $9,307.50 in attorneys’ fees, finding that such an award was reasonable given that the fees “became so grossly disproportionate to the amount of potential recovery[ ] only after [Jackson] chose to advance and repeat its unavailing arguments which had been decided by the Court in its previous Orders.” A judgment of foreclosure and sale was entered in May 2007. Jackson appealed the judgment, arguing that it was improperly calculated.

Meanwhile, a foreclosure sale was scheduled for August 24, 2007. Approximately a week before the sale, the Trust forwarded a payoff letter to Jackson indicating that the sum of $19,070.74 could be paid to redeem the property prior to the sale. Instead of forwarding full payment to the Trust, Jackson deposited $19,563.71 with the Bronx County Clerk on August 17, 2007. The transmittal certificate reflects that the purpose of the deposit was “to be determined” and that the persons to be benefit-ted likewise were “to be determined.” The day before the scheduled sale, the Trust received correspondence from Jackson stating that it had filed an undertaking with the County Clerk that “stayed” the foreclosure sale. The sale proceeded as planned and a third party bought the parcel with a high bid of $160,000.

In September 2007, Jackson moved to cancel the foreclosure sale and enjoin the referee from conveying title because the property had been sold in violation of statutory stays afforded by CPLR 5519 and RPAPL 1341. Supreme Court denied the motion. The Appellate Division affirmed both the foreclosure judgment and Supreme Court’s denial of the motion (55 AD3d 454 [1st Dept 2008]), and we granted Jackson leave to appeal (12 NY3d 715 [2009]).

Jackson maintains that its appeal from the May 2007 judgment of foreclosure coupled with its August 2007 deposit with the County Clerk automatically stayed the sale under CPLR 5519 (a) (2) and (6). But CPLR 5519 (a) (2) is relevant only where “the judgment or order directs the payment of a sum of money” and has no application to an appeal from a judgment of foreclosure and sale. Similarly, Jackson’s reliance on CPLR 5519 (a) (6) is unavailing given that its undertaking was not “in a sum fixed by the court” as required by that provision.

Alternatively, Jackson submits that the foreclosure sale was improper because a stay was obtained pursuant to RPAPL 1341, which provides in relevant part:

“Where an action is brought to foreclose a mortgage upon real property upon which any part of the principal or interest is due, and another portion of either is to become due, and the defendant pays into court the amount due for principal and interest and the costs of the action, together with the expenses of the proceedings to sell, if any, the court shall:
“2. Stay all proceedings upon judgment, if the payment is made after judgment directing sale and before sale; but, upon a subsequent default in the payment of principal or interest, the court may make an order directing the enforcement of the judgment for the purpose of collecting the sum then due.”

The Appellate Division concluded that Jackson did not properly secure a stay under RPAPL 1341 because that provision is not self-executing and requires that a court order the stay. We reject Jackson’s argument for a more fundamental reason—RPAPL 1341 simply has no application here.

RPAPL 1341 authorizes a stay when the property owner pays a sufficient amount into court in situations “[w]here an action is brought to foreclose a mortgage upon real property upon which any part of the principal or interest is due, and another portion of either is to become due” (emphasis added). In typical mortgage foreclosure cases, after a default, the entire balance is accelerated and immediately due. No portion “is to become due” in the future. Becausé future payments are anticipated only in the context of partial mortgage foreclosures (see RPAPL 1351 [2]), it follows that RPAPL 1341, by its plain terms, is limited to partial foreclosures (see 1 Bergman, New York Mortgage Foreclosures § 4.07 [1], at 4-46 [2009] [“While that provision does address the concept of redemption, a careful reading of R.PA.EL. section 1341 reveals its application solely to the instance where the entire amount of the mortgage has not yet become due. In short, that section applies to the partial foreclosure situation”]). Since this action to foreclose the Trust’s tax lien does not involve a partial foreclosure, RPAPL 1341 is inapplicable.

Although RPAPL 1341 does not apply outside the partial foreclosure context, we note that a number of recent Appellate Division cases have engrafted that statute’s requirements onto a property owner’s common-law right of redemption (see e.g. NYCTL 1996-1 Trust v LFJ Realty Corp., 307 AD2d 957 [2d Dept 2003], lv dismissed 1 NY3d 622 [2004]; EMC Mtge. Corp. v Bobb, 296 AD2d 476 [2d Dept 2002]; Green Point Sav. Bank v Oppenheim, 237 AD2d 409 [2d Dept 1997], Iv denied 90 NY2d 806 [1997]). The equity of redemption, which long predates the RPAPL, allows property owners to redeem their property by tendering the full sum at any point before the property is actually sold at a foreclosure sale (see Mackenna v Fidelity Trust Co. of Buffalo, 184 NY 411, 416 [1906]; Nutt v Cuming, 155 NY 309, 313 [1898]; Nelson v Loder, 132 NY 288, 291-292 [1892]; see also 1 Bergman, New York Mortgage Foreclosures § 4.07, at 4-42.2 [2009]). To the extent LFJ, EMC and Green Point suggest that a property owner must comply with RPAPL 1341’s requirements—including a motion for a stay and a sum deposited with the court—as preconditions for redemption, those cases should not be followed. An unconditional tender of the full amount due is all that is required.

Here, Jackson has conceded that it only sought to stay the sale through its deposit of $19,563.71 with the County Clerk and that it did not tender the sum to the Trust. The record confirms that no tender was made—the documentation associated with the deposit reveals that no particular purpose or person was identified at the time the funds were deposited. Similarly, Jackson notified the Trust that the deposit merely “stayed” the foreclosure sale; it did not claim that it had fully satisfied the outstanding debt. Hence, Jackson informed neither the court nor the Trust that it was making full payment to redeem the property. Because Jackson did not redeem the property by unconditionally tendering the total amount owed, the parcel was properly sold at auction.

We have considered Jackson’s remaining arguments, including those related to the propriety of the foreclosure judgment itself, and find them to be without merit.

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

Chief Judge Lippman and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs.

       In fact, throughout this litigation, Jackson’s posture has been that its conduct stayed the sale pending its appeal from the foreclosure judgment—a position that is inconsistent with the exercise of the equity of redemption.


text:
    [923 NE2d 561, 896 NYS2d 278]
    Rondack Construction Services, Inc., Respondent, v Kaatsbaan International Dance Center, Inc., Respondent. TBays, LLC, Nonparty Appellant.
    Argued November 17, 2009;
    decided December 15, 2009

      POINTS OF COUNSEL

      Teahan & Constantino, Poughkeepsie (Richard I. Cantor of counsel), for nonparty appellant.
    I. The procedures for enforcement of money judgments codified in article 52 of the CPLR, including the discretionary provisions for protective relief, supersede and supplant the common-law holding in Tiffany v St. John (65 NY 314 [1875]) erroneously relied upon by the Appellate Division in its holding that a tender prior to commencement of active bidding in a sheriff’s sale instantaneously discharges an execution lien. (Guardian Loan Co. v Early, 47 NY2d 515; Paz v Long Is. R.R., 241 AD2d 486; Matter of Sanders v Manufacturers Hanover Trust Co., 229 AD2d 544; Kolortron Sys. v Casey, 118 AD2d 687; Tweedie Constr. Co. v Stoesser, 65 AD2d 657; Moskin v Midland Bank & Trust Co., 96 Misc 2d 600.) II. The correct standard of review for determination of the appeal at the Appellate Division was whether Acting Supreme Court Justice Dolan abused his discretion in upholding the sheriffs sale. (Fiore v Oakwood, Plaza Shopping Ctr., 178 AD2d 311; Matter of Sanders v Manufacturers Hanover Trust Co., 229 AD2d 544; Matter of National Loan Invs. v Futersak, 294 AD2d 506; Webb v Torrington Indus., Inc., 28 AD3d 1216; Gorea v Pinsky, 50 AD2d 713; Technology Multi Sources, S.A. v Stack Global Holdings, Inc., 44 AD3d 931; Tiffany v St. John, 65 NY 314.) III. Acting Supreme Court Justice Dolan did not abuse his discretion in denying protective relief to Kaatsbaan International Dance Center, Inc. (Cook v H. R. H. Constr. Corp., 32 AD2d 806; Midlantic Natl. Bank/N. v Reif, 732 F Supp 354; Hammond v Econo-Car of N. Shore, 71 Misc 2d 546; Nord v Berman, 5 Misc 3d 1002[A], 2004 NY Slip Op 51150[U]; Swift v Swift, 260 AD3d 468; AMEV Capital Corp. v Kirk, 180 AD2d 791; Donaghy v Donaghy, 203 AD2d 803; Wandschneider v Bekeny, 75 Misc 2d 32; Federal Deposit Ins. Co. v Lapadula, 137 Misc 2d 559; Matter of Ocino, Inc. v Fromm, 276 AD2d 558.)
    I. The Second Department properly determined that when Kaatsbaan International Dance Center, Inc., the judgment debtor, tendered the full judgment amount prior to the execution sale, the execution lien was instantaneously discharged, and the Sheriffs authority to sell the property was terminated. (Tiffany v St. John, 65 NY 314; Gersten-Hillman Agency v Lichtenstein & Friedman Realty Corp., 182 AD2d 1041; Wandschneider v Bekeny, 75 Misc 2d 32; Paz v Long Is. R.R., 241 AD2d 486; Matter of Sanders v Manufacturers Hanover Trust Co., 229 AD2d 544; Kolortron Sys. v Casey, 118 AD2d 687; Tweedie Constr. Co. v Stoesser, 65 AD2d 657; Moskin v Midland Bank & Trust Co., 96 Misc 2d 600; Guardian Loan Co. v Early, 47 NY2d 515; Sweeney, Cohn, Stahl & Vaccaro v Kane, 33 AD3d 785.) II. Appellant’s claim that the Appellate Division applied an improper standard of review is meritless. The Appellate Division did not make a de novo review of any discretionary determination by the Supreme Court under CPLR 5240. The Appellate Division simply determined that Kaatsbaan International Dance Center, Inc. tendered the full judgment amount before the execution sale. (Dale v Emerson Elec. Co., 219 AD2d 815; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Zeltser v Sacerdote, 52 AD3d 824.) III. Because the tender of the amount due prior to the alleged sheriff’s sale extinguished the execution lien and terminated the right of the Sheriff to sell the property, under CPLR 2003, the Supreme Court should have granted the relief sought by Kaatsbaan International Dance Center, Inc. (Gersten-Hillman Agency v Lichtenstein & Friedman Realty Corp., 182 AD2d 1041; Shaw v Russell, 95 AD2d 977.) IV If this Court finds that a review under CPLR 5240 is necessary, this Court must find that the Supreme Court improvidently exercised its discretion and abused its discretion in declining to grant Kaatsbaan International Dance Center, Inc. protective relief under CPLR 5240. (Matter of National Loan Invs. v Futersak, 294 AD2d 506; Paduano v Paduano, 47 AD2d 660; Mast Prop. Invs. v Gaines Serv. Leasing Corp., 194 AD2d 412.)

      Malcolm S. Taub LLP, New York City {Malcolm S. Taub of counsel), for Kaatsbaan International Dance Center, Inc., respondent.
   OPINION OF THE COURT

Graffeo, J.

In this case, we reaffirm Tiffany v St. John (65 NY 314 [1875]) and hold that a judgment debtor’s tender to the sheriff before its property is auctioned at a judicial sale automatically discharges the execution lien, terminating the sheriff’s authority to sell the property.

In early 2006, plaintiff Rondack Construction Services, Inc. obtained a default judgment against defendant Kaatsbaan International Dance Center, Inc. for $105,631.05 based on Kaatsbaan’s failure to pay a promissory note. When Kaatsbaan did not satisfy the judgment, Rondack delivered an execution directing the Dutchess County Sheriff to sell a 53-acre parcel owned by Kaatsbaan. The Sheriff scheduled a judicial auction and sale of the property for 11:00 a.m. on September 6, 2006.

The auction commenced as planned. Before bidding began, Kaatsbaan’s executive director asked the lieutenant from the Sheriffs department whether the sale could be prevented by satisfying the judgment with a check. The lieutenant phoned the County Attorney’s office for legal advice and, while awaiting its response, Kaatsbaan’s agent offered him a cashier’s check for $116,754.15, an amount sufficient to satisfy the judgment, together with interest, poundage and other related fees. After receiving instructions from the County Attorney’s office, the lieutenant refused the tender and proceeded with the sale. A bid of $118,000 made on behalf of TBays, LLC was accepted as the highest bid.

On September 13th, Kaatsbaan moved to vacate the sale and compel the Sheriff to accept its check in full satisfaction of the judgment. TBays cross-moved to direct the Sheriff to execute and deliver the deed and related documents.

Supreme Court denied Kaatsbaan’s motion and granted TBays’ cross motion. The Appellate Division reversed, thereby granting Kaatsbaan’s motion to vacate the sale and compel the Sheriff to accept the check (54 AD3d 924 [2d Dept 2008]). Relying on Tiffany, the court held that Kaatsbaan’s pre-sale tender discharged the execution lien, and therefore, the Sheriff lacked capacity to sell the parcel.

In granting leave to appeal, the Appellate Division certified the following question: “Was the decision and order of this court dated September 23, 2008, properly made?” We now answer the question in the affirmative.

In Tiffany, the sheriff levied on a judgment debtor’s boat pursuant to an execution and proceeded to sell it at a public auction. Before bidding began, the judgment debtor tendered to the sheriff an amount sufficient to satisfy the judgment and all associated costs. The sheriff refused the tender and sold the boat to the highest bidder. Analogizing to the common-law equity of redemption in the mortgage foreclosure context, this Court held more than a century ago that, under these circumstances, the tender was the equivalent of payment and had the “instantaneous effect” of discharging the lien created by the execution (65 NY at 318). Consequently, the sheriff lost the authority to sell the property, resulting in an improper conveyance.

TBays acknowledges that Tiffany compels an affirmance if it remains good law. It urges, however, that the CPLR article 52 procedures relating to the enforcement of money judgments— and CPLR 5236 and 5240 in particular-abrogated the common-law rule articulated by Tiffany. We disagree.

CPLR 5236 delineates the procedures applicable to a sheriffs sale of a judgment debtor’s real property. In Guardian Loan Co. v Early (47 NY2d 515 [1979]), we noted that CPLR 5236 abolished the debtor’s statutory right (codified in the former Civil Practice Act) to redeem property after it had been sold at auction. The enactment of CPLR 5236, however, did not alter a debtor’s right to recover property before a judicial sale. In fact, CPLR 5236 (a) preserves “a kind of ‘redemption’ period” because it requires at least an eight-week time frame between the posting of notice and the sale itself (10th Ann Rep of NY Jud Conf, at 123). We believe that Tiffany, which effectively permits a judgment debtor to redeem by tendering full payment to the sheriff before the property is sold at auction, is fully compatible with CPLR 5236 and remains an accurate statement of New York law.

TBays’ reliance on CPLR 5240 is similarly misplaced. CPLR 5240 allows a court to issue a protective order “denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.” We have observed that this provision “grants the courts broad discretionary power to control and regulate the enforcement of a money judgment under article 52 to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Guardian, 47 NY2d at 519 [internal quotation marks and citation omitted]). But nothing in CPLR 5240 explicitly or implicitly supplants Tiffany. A property owner who desires to tender the appropriate amount before the actual sale is free to do so without the need to move under CPLR 5240. Stated differently, property owners possess a common-law right under Tiffany to redeem their property before sale without judicial intervention.

Here, as in Tiffany, Kaatsbaan timely tendered an amount sufficient to satisfy the judgment and all fees and expenses. Kaatsbaan’s tender extinguished the lien and foreclosed the sale of the property. The Appellate Division therefore properly granted Kaatsbaan’s motion to set aside the sale and compel the Sheriff to accept its check in full satisfaction of the judgment.

Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative.

Chief Judge Lippman and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order affirmed, etc.


author: Per Curiam.

text:
    [923 NE2d 563, 896 NYS2d 280]
    In the Matter of James P. Gilpatric, a Judge of the Kingston City Court, Ulster County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued November 17, 2009;
    decided December 15, 2009

      POINTS OF COUNSEL

      James E. Long, Albany, for petitioner.
    The Commission on Judicial Conduct does not have jurisdiction warranting disciplinary action in this case. (Matter of Greenfield, 76 NY2d 293; Matter of Lenney, 71 NY2d 456; Matter of Reeves, 63 NY2d 105; Matter of Washington, 100 NY2d 873.)

      Robert H. Tembeckjian, New York City, Edward Lindner, Melissa DiPalo and Thea Hoeth for respondent.
    I. This Court’s decision in Matter of Greenfield (76 NY2d 293 [1990]) did not divest the Commission on Judicial Conduct of subject matter jurisdiction over decisional delays. (Matter of Washington, 100 NY2d 873; Lacks v Lacks, 41 NY2d 71; Thrasher v United States Liab. Ins. Co., 19 NY2d 159; Matter of Steinberg, 51 NY2d 74; Matter of Sherrill v O’Brien, 188 NY 185; Matter of Assini, 94 NY2d 26.) II. Petitioner’s failure to timely decide 47 cases over a period of three years and his failure to adhere to terms of the letter of dismissal and caution and to avoid further delays after intervention of his administrative judge constitute judicial misconduct. (Matter of Greenfield, 76 NY2d 293; Matter of Assini, 94 NY2d 26; Matter of Cerbone, 2 NY3d 479; Matter of Robert, 89 NY2d 745; Matter of Lenney, 71 NY2d 456.) III. In the event this Court finds Matter of Greenfield (76 NY2d 293 [1990]) precludes a determination of misconduct, it should be overturned. (Matter of Blackburne [State Commn. on Jud. Conduct], 7 NY3d 213; Matter of Hart [State Commn. on Jud. Conduct], 7 NY3d 1; Matter of Bauer, 3 NY3d 158.) IV The appropriate sanction is admonition.
   OPINION OF THE COURT

Per Curiam.

On summary determination, the State Commission on Judicial Conduct sustained one charge of misconduct against petitioner, a City Court Judge, for his failure to render timely decisions in 47 cases over a period of 3x/2 years and concluded that his conduct constituted a pattern of “persistent or deliberate neglect of his judicial duties” {Matter of Greenfield, 76 NY2d 293, 295 [1990]). We modify the determination and conclude that this matter should be remitted to the Commission for a hearing before a referee.

I.

From 1994 to 2007, petitioner served as a part-time Judge of the Kingston City Court and maintained a private law practice. In February 2004, the Commission issued a confidential letter of dismissal and caution to him for failing to render timely decisions in two cases and failing to report one delayed case to his administrative judge as required by Rules of the Chief Judge (22 NYCRR) § 4.I. In April 2007, he became a full-time judge of that court.

In August 2008, the Commission filed a formal written complaint against petitioner, alleging that from July 2004 to February 2008 petitioner delayed in rendering decisions in 43 cases and four motions. The allegations are undisputed. In 25 of the cases, the delays ranged between two months and six months after final submission; in 17 cases, the delays ranged between seven months to one year and two months; and, in one case, petitioner delayed the decision more than 21h years. The delayed decisions on motions ranged between four and 11 months. No more than 13 decisions were pending at any given time. As required by 22 NYCRR 4.1, petitioner reported the delayed matters in quarterly reports to his administrative judge and cited “[insufficient time” as a cause for many of the delays. In several cases, the litigants or their attorneys wrote to petitioner or petitioner’s administrative judge inquiring about the delayed decisions in their respective cases.

Petitioner moved to dismiss the formal written complaint, arguing that the Commission lacks jurisdiction to intrude into matters of internal court administration. Petitioner admitted to the backlog and informed the Commission that, after becoming a full-time judge, he cleared his backlog and has remained current. The administrator of the Commission opposed petitioner’s motion and cross-moved for summary determination, sustaining the formal written complaint. The Commission denied the motion to dismiss and granted the cross motion for summary determination. After arguments on the issue of sanctions, the Commission determined that admonition was appropriate. Petitioner now asks the Court to review this matter pursuant to NY Constitution, article VI, § 22 (d) and Judiciary Law § 44 (9), which confer on this Court plenary power to review the legal and factual findings of the Commission as well as the sanction.

II.

A judge has an ethical obligation to “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3 [B] [7]). In Greenfield, this Court held that the Commission generally lacks jurisdiction to discipline a judge for a failure to timely dispose of pending matters (76 NY2d at 298). In that case, the Commission sustained one charge of misconduct against a Supreme Court justice, for his failure to render decisions promptly in eight cases. The delayed decisions ranged from seven months to over nine years in those cases, and the petitioner conceded that the delays were inexcusable. We concluded that the delays disclosed “serious administrative failings in [the] petitioner’s handling of the cases,” but that there was “no persistent or deliberate neglect of his judicial duties rising to the level of misconduct” (id. at 295). The petitioner’s hearing revealed that, during his judicial career, he had disposed of approximately 25,000 cases and often worked evenings, weekends and holidays. Unique to that case, the petitioner’s administrative judge explained that most of the delays occurred at the infancy of reporting rules, which had not been consistently applied and enforced, and that, prior to the disciplinary hearing, administrative action had been firmly interposed (see id. at 299). At that time, this Court concluded that it was important to draw a line

“between the role of the Commission and court administrators in order to avoid confusion and provide adequate notice to members of the judiciary as to when and under what circumstances delays in disposing of pending matters ceases to be a purely administrative concern and becomes a matter warranting punitive sanctions” (id. at 298).

It still remains true that a judge’s failure to promptly dispose of pending matters is primarily a matter for administrative correction. But after nearly 20 years of experience with Greenfield, we think it is not workable to exclude completely the possibility of more formal discipline for such behavior, in cases where the delays are lengthy and without valid excuse. In Greenfield itself, we recognized that when a judge “has defied administrative directives or has attempted to subvert the system by, for instance, falsifying, concealing or persistently refusing to file records indicating delays,” the Commission has the authority to sanction a judge {id. at 297; Matter of Washington, 100 NY2d 873, 875 [2003]). We now hold that lengthy, inexcusable delays may also be the subject of disciplinary action, particularly when a judge fails to perform judicial duties despite repeated administrative efforts to assist the judge and his or her conduct demonstrates an unwillingness or inability to discharge those duties.

Because not every case involving caseload delays will rise to the level of misconduct, it is imperative that the context in which the delays occurred be fully explored. The number of cases and the length of the delays should be assessed in light of the total number and complexity of cases that the judge presided over during the relevant time period, as well as the jurist’s other judicial obligations. The extent and nature of efforts taken by an administrative judge or other administrative personnel, as well as the judge’s response to those efforts, should also be considered. Statistics alone are insufficient to support a finding of misconduct; disciplinary action must be based on a record demonstrating a judge’s persistent lack of action in response to administrative recommendations or warnings.

Here, although petitioner had numerous lengthy delayed decisions and a prior letter from the Commission cautioning him to promptly dispose of pending matters, misconduct was established on summary determination without a hearing. While we conclude that petitioner’s motion to dismiss was properly denied because the Commission has jurisdiction to investigate complaints involving delay and, where appropriate, pursue further proceedings, we are unpersuaded that the prior warning in this case was sufficient to render these delays misconduct as a matter of law, without the development of a record addressing the context in which they occurred. On the record presented, it is not clear whether these delayed decisions were inexcusable and whether the problem could have been, or was, adequately dealt with administratively. Indeed, we do not know the extent to which petitioner’s administrative judge intervened. Given the Commission must establish that the delayed decisions were the product of misconduct, whether disciplinary action was warranted is not discernable from the existing record.

Accordingly, the determination of the State Commission on Judicial Conduct should be modified, without costs, by denying the administrator’s cross motion for summary determination and remitting to the Commission for a hearing on the charge contained in the formal written complaint, and as so modified, accepted.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion; Chief Judge Lippman taking no part.

Determination of the State Commission on Judicial Conduct modified, etc.

      . The letter dismissed the complaint against him, but cautioned that he must “dispose of all judicial matters promptly, efficiently and fairly” and “submit complete and accurate quarterly reports of pending cases to [his] administrative judge.” The Commission further advised that the letter “may be used in a future disciplinary proceeding based on failure to adhere to [its] terms.”

        . Pursuant to Uniform City Court Act § 1304, a “court must render judgment within thirty days from the time when the case is submitted for that purpose.” A court shall render a decision on a motion within 60 days (see Uniform City Ct Act § 1001; CPLR 4213 [c]).


author: Pigott, J. Chief Judge Lippman. (dissenting).

text:
    [921 NE2d 1034, 894 NYS2d 370]
    Avraham Affri, Appellant, v Yaakov Basch et al., Respondents.
    Argued October 20, 2009;
    decided November 24, 2009

      POINTS OF COUNSEL

      Pollack Pollack Isaac & De Cicco, New York City (Brian J. Isaac, Joshua Brian Erwin and Jillian Rosen of counsel), for appellant.
    I. The evidence establishes that defendants directed and controlled plaintiffs work and thus are not entitled to application of the homeowner’s exemption; they commanded him to perform the specific actions that resulted in his accident, despite his reluctance. (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Haimes v New York Tel. Co., 46 NY2d 132; Crawford v Leimzider, 100 AD2d 568; Mack v Altmans Stage Light. Co., 98 AD2d 468; Horning v Gore, 87 AD2d 34; Bland v Manocherian, 66 NY2d 452; Gandley v Prestige Roofing & Siding Co., 148 AD2d 666, 74 NY2d 792; Vencebi v Waldorf Astoria Hotel Corp., 143 AD2d 1004; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494.) II. Given defendants’ control over the work site, the Labor Law § 241 (6) and § 200 claims should be reinstated. (Morris v Pavarini Constr., 9 NY3d 47; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Nagel v D & R Realty Corp., 99 NY2d 98; Long v Forest-Fehlhaber, 55 NY2d 154, 56 NY2d 805; Allen v Cloutier Constr. Corp., 44 NY2d 290, 45 NY2d 776; Latino v Nolan & Taylor-Howe Funeral Home, 300 AD2d 631; Kelleir v Supreme Indus. Park, 293 AD2d 513; Pasquarello v Citicorp/ Quotron, 251 AD2d 477; Mills v Niagara Mohawk Power Corp., 262 AD2d 901; White v Farash Corp., 224 AD2d 978.)

      Hodges Walsh & Slater, LLP, White Plains (Paul E. Svensson of counsel), for respondents.
    I. Defendants-respondents are entitled to the homeowner exemption under Labor Law §§ 240 and 241 (6) because they did not exercise direction and control over the method and manner of plaintiff-appellant’s work. (Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 8 NY3d 841; Siconolfi v Crisci, 11 AD3d 600; Tilton v Gould, 303 AD2d 491; Sarvis v Maida, 173 AD2d 1019; Mayen v Kalter, 282 AD2d 508; Duarte v East Hills Constr. Corp., 274 AD2d 493; Schwartz v Foley, 142 AD2d 635; Boccio v Bozik, 41 AD3d 754; Acosta v Hadjigavriel, 18 AD3d 406; Ryba v Almeida, 44 AD3d 740.) II. Defendants-respondents are not liable under Labor Law § 200 because they were not responsible for the manner in which the work was performed and did not exercise supervisory control over plaintiff-appellant’s work methods. (Ortega v Puccia, 57 AD3d 54; Comes v New York State Elec. & Gas Corp., 82 NY2d 876; Ferrero v Best Modular Homes, Inc., 33 AD3d 847; Kajowski v Irvico Realty Corp., 37 AD2d 991, 30 NY2d 481; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136; Snyder v Gnall, 57 AD3d 1289; Chowdhury v Rodriguez, 57 AD3d 121.)
   OPINION OF THE COURT

Pigott, J.

The issue before us is whether defendants exercised sufficient direction and control over plaintiff’s work to overcome the one- or two-family dwelling exception found in Labor Law §§ 240 and 241. We hold that they did not and therefore affirm the order of the Appellate Division.

Defendants hired plaintiff, a neighbor who had previously done small jobs for them, to perform renovations to an apartment within their home. The work included, as relevant to this appeal, the installation of appliances. Plaintiff fell from a ladder while installing a vent on the roof and suffered injuries that required several surgeries.

Plaintiff brought this action against defendants, alleging violations of Labor Law §§ 200, 240 (1) and § 241 (6) and common-law negligence. Following discovery, defendants moved for summary judgment dismissing the complaint asserting, among other things, that as owners of a two-family dwelling they were exempt from the duties imposed under the Labor Law. Plaintiff opposed the motion and, in turn, cross-moved for summary judgment maintaining that because defendants directed and controlled his work, the one- or two-family dwelling exception did not apply. Supreme Court denied both motions finding questions of fact as to all causes of action.

The Appellate Division reversed, holding that defendants made a prima facie showing of their entitlement to summary judgment under the homeowner’s exemption of Labor Law § 240 (1) and § 241 (45 AD3d 615, 616 [2007]). It further found that plaintiff failed to raise a triable issue of fact in opposition, concluding that plaintiff “demonstrated only that the defendants made aesthetic decisions and exercised general supervision with respect to the project, neither of which deprives them of the benefit of the statutory exemption” {id.).

As it pertained to the section 200 claim and common-law negligence, the Appellate Division found that plaintiff failed to raise a triable issue of fact as to whether defendants exercised supervisory control over the work {id.). Therefore, it found that Supreme Court should have also dismissed those causes of action {id.).

We granted plaintiff leave to appeal (11 NY3d 714 [2009]) and now affirm.

Labor Law § 240 provides in pertinent part as follows:

“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for hut do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor . . . devices which shall be so constructed, placed and operated as to give proper protection to a person so employed” (§ 240 [1] [emphasis added]).

A similar homeowner’s exemption is found in Labor Law §241.

The exemption was enacted so that “the law would be fairer and more nearly reflect the practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes” (Cannon v Putnam, 76 NY2d 644, 649 [1990] [citation omitted]). We have previously stated that whether a defendant’s conduct amounts to direction and control depends upon the degree of supervision exercised over “the manner and method of the work to be performed” (Duda v Rouse Constr. Corp., 32 NY2d 405, 409 [1973]).

Here, defendants’ participation was limited to discussion of the results the homeowner wished to see, not the method or manner in which the work was then to be performed. Defendants’ direction to plaintiff to place a vent through the roof was simply an aesthetic decision. Defendants did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion. Further, defendants did not provide the plaintiff with any equipment or work materials, nor were they even present at the time plaintiff undertook the venting work. Rather, both the method and the manner of plaintiffs work were left to his judgment and experience.

Plaintiffs affidavit indicating that he expressed reluctance to go on the roof because of concern for his safety is insufficient to raise an issue of fact. Although plaintiff claims that he did not want to go up on the roof to run the vent because he was working alone, he proceeded to do so—not at the specific direction of defendants but of his own volition to complete the work.

For the same reasons, defendants were entitled to summary judgment dismissing the causes of action pursuant to Labor Law § 200 and for common-law negligence because defendants exercised no supervisory control over the activity bringing about the injury (see Lombardi v Stout, 80 NY2d 290, 295 [1992]).

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

Chief Judge Lippman. (dissenting).

The majority conflates the end result of the work with the manner and method of its performance and it is the supervision over the latter that is the touchstone in this case. Labor Law § 240 (1) was enacted to protect workers from the hazards involved in elevation-related work. It imposes absolute liability upon owners and general contractors who fail to furnish proper protective devices, but provides an exception for “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law § 240 [1]). We have noted, however, that the homeowner’s exemption

“is an exception to the clear legislative intent to protect[ ] workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner[,] and as such, may properly be extended only so far as [the] language [of the exception] fairly warrants [. Therefore,] doubts should be resolved in favor of the general provision rather than the exception” (Van Amerogen v Donnini, 78 NY2d 880, 882 [1991] [internal quotation marks and citations omitted]).

The question presented here is whether plaintiff raised an issue of fact as to whether defendants directed and controlled his work, sufficient to defeat defendants’ summary judgment dismissal motion. Case law from this Court provides little guidance for determining the limits of the homeowner’s exemption. However, we have observed that “for one person to be ‘directed’ by another, there must be supervision of the manner and method of the work to be performed” (Duda v Rouse Constr. Corp., 32 NY2d 405, 409 [1973]). At the other end of the spectrum, the Appellate Division has held that general supervision that is “no more extensive than would be expected of the typical homeowner who hired a contractor to renovate his or her home” (Orellana v Dutcher Ave. Bldrs., Inc., 58 AD3d 612, 614 [2d Dept 2009], Iv dismissed 12 NY3d 804 [2009]) or decisions involving merely aesthetic choices will not suffice to establish direction and control.

Under the circumstances presented here, I would find that plaintiff has at the very least raised an issue of fact as to whether defendants were directing and controlling his work. Defendants’ conduct could be found to be more extensive than expected of the typical homeowners renovating their home inasmuch as their activity involved changing the fundamental or structural nature of the work. For example, plaintiff asserts that when he told Mr. Basch that in order to move a sink to Basch’s preferred location he would need to cut a beam that supported the house, defendant instructed him to cut the beam. Basch told plaintiff to place the washer-dryer vent through the roof, rather than through the window, after plaintiff expressed reservations about the safety of that procedure—a significant alteration changing the fundamental nature of the work. That Basch may have been able to induce plaintiff to perform the work on the roof, even though plaintiff was afraid for his safety, would also support a finding that Basch directed or controlled plaintiffs work.

The majority states that plaintiffs affidavit “is insufficient to raise an issue of fact” (majority op at 596). It is not clear why that is so or what more should be required from plaintiff at this stage. Affri was the sole witness to the accident and his affidavit is largely consistent with the testimony he gave at his examination before trial.

The homeowner’s exemption does not provide blanket immunity for all homeowners—only for those who do not direct or control the nature of the work. This is not a situation where it can be said as a matter of law that the homeowner left the method and manner of performance to the worker’s expertise such that the homeowner cannot be held responsible. If a homeowner directs the manner and means of the work, it is immaterial that the end result was an aesthetic change. Here, there is a genuine question of fact whether defendants crossed the line from general supervision to exercising direction and control over plaintiffs work.

Therefore, I would reverse and reinstate plaintiffs Labor Law § 240 (1) claim. For the same reasons, I would reinstate plaintiffs claims under Labor Law § 241 (6) and § 200 and his claim based on common-law negligence.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents and votes to reverse in a separate opinion in which Judges Ciparick and Jones concur.

Order affirmed, with costs.


author: Chief Judge Lippman.

text:
    [922 NE2d 865, 895 NYS2d 279]
    Victor J. Runner, Respondent, v New York Stock Exchange, Inc., et al., Appellants.
    Argued November 17, 2009;
    decided December 17, 2009

      POINTS OF COUNSEL

      Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Steven J. Ahmuty, Jr., and Christopher Simone of counsel), and Lewis Brisbois Bisgaard & Smith LLP for appellants.
    Plaintiffs accident did not fall within the ambit of what the Legislature envisioned when enacting Labor Law § 240 (1) as interpreted by the courts. (Rocovich v Consolidated Edison Co., 78 NY2d 509; De Haen v Rockwood Sprinkler Co., 258 NY 350; Schreiner v Cremosa Cheese Corp., 202 AD2d 657; White v Dorose Holding, 216 AD2d 290; Blake v Neighborhood Hous. Servs. of NY. City, 1 NY3d 280; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Jastrzebski v North Shore School Dist., 223 AD2d 677, 88 NY2d 946; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Pope v Supreme-K.R.W. Constr. Corp., 261 AD2d 523; Baker v Barron’s Educ. Serv. Corp., 248 AD2d 655.)

      Sacks and Sacks, LLP, New York City (Scott N. Singer of counsel), for respondent.
    I. The issues raised on the present appeal were properly formulated in the Second Circuit’s certified questions. II. The District Court’s conclusion that Labor Law § 240 (1) was violated as a matter of law was consistent with the statutory language and controlling decisions of this Court. (Koenig v Patrick Constr. Corp., 298 NY 313; Haimes v New York Tel. Co., 46 NY2d 132; Bland v Manocherian, 66 NY2d 452; Rocovich v Consolidated Edison Co., 78 NY2d 509; Martinez v City of New York, 93 NY2d 322; Karaktin v Gordon Hillside Corp., 143 AD2d 637; Robinson v East Med. Ctr., LP, 6 NY3d 550; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35; Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280; Jastrzebski v North Shore School Dist., 223 AD2d 677, 88 NY2d 946.) III. The District Court’s determination was consistent with Appellate Division decisions construing Labor Law § 240 (1). (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Berg v Albany Ladder Co., Inc., 10 NY3d 902; Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070; Mattison v Wilmot, 228 AD2d 991; Mills v Tumbleweed Mgt. Co., 270 AD2d 121; Carroll v Metropolitan Life Ins. Co., 264 AD2d 336; Brown v New York City Economic Dev. Corp., 234 AD2d 33; Lopez v Boston Props. Inc., 41 AD3d 259; Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841.)

      Fiedelman & McGaw, Jericho (Andrew Zajac and Dawn C. DeSimone of counsel), Roña L. Platt, Brendan T. Fitzpatrick, David B. Hamm and Timothy J. Keane for Defense Association of New York, Inc., amicus curiae.
    In a scenario where plaintiff did not fall from a height, and no object fell from a height striking him, Labor Law § 240 (1) does not apply; proper interpretation of legislative intent and stare decisis dictates rejection of plaintiffs efforts to expand the scope of Labor Law § 240 (1) to encompass a type of hazard never contemplated for inclusion in the statutory strict liability provided for uniquely height-related hazards. (Misseritti v Mark IV Constr. Co., 86 NY2d 487; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Toefer v Long Is. R.R., 4 NY3d 399; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Martinez v City of New York, 93 NY2d 322; Perchinsky v State of New York, 232 AD2d 34; Schroeder v Kalenak Painting & Paperhanging, Inc., 7 NY3d 797; Munoz v DJZ Realty, LLC, 5 NY3d 747.)
   OPINION OF THE COURT

Chief Judge Lippman.

The Second Circuit Court of Appeals, in the course of considering defendants’ appeal from a judgment imposing liability upon them pursuant to section 240 (1) of New York’s Labor Law, has certified to us two questions respecting the applicability of that statute. We now answer that the statute is applicable under the circumstances here presented.

The trial evidence showed that plaintiff suffered serious and permanent injuries to both of his hands while performing tasks in connection with the installation of an uninterruptible power system on defendant New York Stock Exchange’s premises. The manner in which the injuries were sustained is undisputed. Plaintiff and several coworkers had been directed to move a large reel of wire, weighing some 800 pounds, down a set of about four stairs. To prevent the reel from rolling freely down the flight and causing damage, the workers were instructed to tie one end of a 10-foot length of rope to the reel and then to wrap the rope around a metal bar placed horizontally across a door jamb on the same level as the reel. The loose end of the rope was then held by plaintiff and two coworkers while two other coworkers began to push the reel down the stairs. As the reel descended, it pulled plaintiff and his fellow workers, who were essentially acting as counterweights, toward the metal bar. The expedient of wrapping the rope around the bar proved ineffective to regulate the rate of the reel’s descent and plaintiff was drawn horizontally into the bar, injuring his hands as they jammed against it. Experts testified that a pulley or hoist should have been used to move the reel safely down the stairs and that the jerry-rigged device actually employed had not been adequate to that task.

The jury, having been instructed that liability pursuant to Labor Law § 240 (1) could not be assigned unless plaintiff’s injuries had been attributable to a gravity-related risk, and having found that no such risk had been implicated, returned a verdict for defendants. A motion by plaintiff to set aside the verdict ensued. In granting the motion and directing judgment for the plaintiff upon his Labor Law § 240 claim, the District Court found, as a matter of law, that the movement of the reel down the stairs presented a gravity-related risk; that an adequate safety device had not been used to manage the risk; and that that failure had been a substantial factor in causing plaintiffs injury.

Defendants appealed, and the Second Circuit, after its initial review of the matter, certified to us these questions:

“I. Where a worker who is serving as a counterweight on a makeshift pulley is dragged into the pulley mechanism after a heavy object on the other side of a pulley rapidly descends a small set of stairs, causing an injury to plaintiffs hand, is the injury (a) an ‘elevation related injury,’ and (b) directly caused by the effects of gravity, such that section 240 (1) of New York’s Labor Law applies?
“II. If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff, does liability exist under section 240 (1) of New York’s Labor Law?” (568 F3d 383, 389 [2009].)

While these inquiries are not inapropos, we think the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.

Labor Law § 240 (1) provides in relevant part:

“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

It is plain that a device precisely of the sort enumerated by the statute was not “placed and operated as to give proper protection” to plaintiff, a person employed in the alteration of a building and thus within the statute’s stated protective ambit. The breadth of the statute’s protection has, however, been construed to be less wide than its text would indicate. As is here relevant, it is generally agreed that the purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and, accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The trial court was of the view that plaintiffs accident arose from such a risk: the reel had to be moved from a higher to a lower elevation and the danger to be guarded against plainly arose from the force of the very heavy object’s unchecked, or insufficiently checked, descent.

Defendants contend to the contrary that the accident was not sufficiently elevation-related to fall within section 240 (l)’s scope. The occurrence, they note, did not involve the traversal of an elevation differential either by plaintiff or an object that hit him, and they urge that gravity must operate directly upon either the plaintiff or upon an object falling upon the plaintiff if there is to be Labor Law § 240 (1) liability. In support of this view, defendants point out that in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494, 501 [1993]) we observed that “the ‘special hazards’ [covered by section 240 (1)] are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (see, DeHaen v Rockwood Sprinkler Co., 258 NY 350),” and that in Narducci v Manhasset Bay Assoc. (96 NY2d 259, 267 [2001]), we noted that “Labor Law § 240 (1) applies to both ‘falling worker’ and ‘falling object’ cases.” But in referring to these familiar scenarios in which section 240 (1) liability may arise, neither decision purports exhaustively to define the statute’s protective reach. Rather, the governing rule is to be found in the language from Ross following closely upon that just quoted, where we elaborated more generally that “Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (Ross, 81 NY2d at 501).

Manifestly, the applicability of the statute in a falling object case such as the one before us does not under this essential formulation depend upon whether the object has hit the worker. The relevant inquiry—one which may be answered in the affirmative even in situations where the object does not fall on the worker—is rather whether the harm flows directly from the application of the force of gravity to the object. Here, as the District Court correctly found, the harm to plaintiff was the direct consequence of the application of the force of gravity to the reel. Indeed, the injury to plaintiff was every bit as direct a consequence of the descent of the reel as would have been an injury to a worker positioned in the descending reel’s path. The latter worker would certainly be entitled to recover under section 240 (1) and there appears no sensible basis to deny plaintiff the same legal recourse.

In certifying its questions to us, the Second Circuit observed that “[defendants offer a litany of illustrative cases highlighting various limitations on section 240 (1) . . . none of which address the material facts of the instant case” (568 F3d 383, 387 [2009]). And, indeed, we have not, until now, addressed a factual progression which, although not following one of the two scenarios defendants would have us deem exhaustive, nonetheless involves an injury directly attributable to a risk posed by a physically significant elevation differential.

The elevation differential here involved cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent. And, the causal connection between the object’s inadequately regulated descent and plaintiff’s injury was, as noted, unmediated—or, demonstrably, at least as unmediated as it would have been had plaintiff been situated paradigmatically at the rope’s opposite end. It is in this respect that this case differs from Toefer v Long Is. R.R. (4 NY3d 399 [2005]), upon which defendants rely. There, the injury was the result of a concatenation of circumstances resulting in the “inexplicable]” launch of an object—not a falling object—in plaintiffs direction (id. at 408); it was not, as here, the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential.

Accordingly, the first certified question, as recast, should be answered in the affirmative and the second certified question left unanswered, as unnecessary.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.