author: Pigott, J. Rivera, J.

text:
    [5 NE3d 578, 982 NYS2d 431]
    John Doe, Appellant, v Guthrie Clinic, Ltd., et al., Respondents.
    Argued November 12, 2013;
    decided January 9, 2014

      POINTS OF COUNSEL

      Brown & Hutchinson, Rochester (T. Andrew Brown of counsel), for appellant.
    I. Two bases of redress for the breach of the fiduciary duty of patient confidentiality exist extending to medical corporations in New York: strict liability and vicarious liability. (Doe v Community Health Plan—Kaiser Corp., 268 AD2d 183; West v American Telephone & Telegraph Co., 311 US 223; Erie R. Co. v Tompkins, 304 US 64; Russel v Todd, 309 US 280.) II. Strict liability applies to medical corporations for breaches of confidential personal health information. (Doe v Community Health Plan—Kaiser Corp., 268 AD2d 183; West v American Telephone & Telegraph Co., 311 US 223; N.X. v Cabrini Med. Ctr., 97 NY2d 247; MacDonald v Clinger, 84 AD2d 482; Cornell v State of New York, 46 NY2d 1032; Stewart v Brooklyn & Crosstown R.R. Co., 90 NY 588; de Wolf v Ford, 193 NY 397; Stone v Eisen Co., 219 NY 205; Petrone v Fernandez, 12 NY3d 546; Aaron v Ward, 203 NY 351.) III. Vicarious liability for medical corporations applies to breaches of confidential personal health information, even if strict liability does not. (Riviello v Waldron, 47 NY2d 297; Petrescu v College Racquet Club, Inc., 40 AD3d 947; Powers v New York Cent. R.R. Co., 251 F2d 813; Essig v United States, 675 F Supp 84; Murray v Watervliet City School Dist., 130 AD2d 830.)

      Morgan, Lewis & Bockius LLP, New York City (Martha B. Stolley and Heather L. Hopkins of counsel), for respondents.
    I. This Court should reject John Doe’s invitation to break from well-settled precedent and impose strict liability on an employer for its employee’s breach of fiduciary duty when acting outside the scope of employment. (Indiana Harbor Belt R. Co. v American Cyanamid Co., 916 F2d 1174; Tighe v Ginsberg, 146 AD2d 268; Cornell v State of New York, 46 NY2d 1032; Pekelnaya v Allyn, 25 AD3d 111; Riley v Standard Oil Co. of NY, 231 NY 301; Adams v New York City Tr. Auth., 88 NY2d 116; N.X. v Cabrini Med. Ctr., 97 NY2d 247; Stewart v Brooklyn & Crosstown R.R. Co., 90 NY 588; de Wolf v Ford, 193 NY 397; Bellevue S. Assoc. v HRH Constr. Corp., 78 NY2d 282.) II. The issue of vicarious liability raised by John Doe is not encompassed within the question certified by the Second Circuit and not properly before this Court. (Rooney v Tyson, 91 NY2d 685; Commodity Futures Trading Commn. v Walsh, 17 NY3d 162; Penguin Group [USA] Inc. v American Buddha, 16 NY3d 295; Suarez v Bakalchuk, 66 AD3d 419; Nicollette T. v Hospital for Joint Diseases /Orthopaedic Inst., 198 AD2d 54; N.X. v Cabrini Med. Ctr., 97 NY2d 247.)
   OPINION OF THE COURT

Pigott, J.

The United States Court of Appeals for the Second Circuit has certified the following question for our consideration: “Whether, under New York law, the common law right of action for breach of the fiduciary duty of confidentiality for the unauthorized disclosure of medical information may run directly against medical corporations, even when the employee responsible for the breach is not a physician and acts outside the scope of her employment?” We answer the question in the negative.

On July 1, 2010, “John Doe” was being treated for a sexually transmitted disease (STD) at the Guthrie Clinic Steuben, a private medical facility. A nurse employed by the Clinic recognized Doe as the boyfriend of her sister-in-law. The nurse accessed Doe’s medical records and learned that he was being treated for the STD. While Doe was still awaiting treatment, she sent text messages to her sister-in-law informing her of Doe’s condition. The sister-in-law immediately forwarded the messages to Doe; according to Doe, the messages suggested that staff members were making fun of his medical condition.

Five days after his visit to the Clinic, Doe called to complain of the nurse’s behavior. He met with an administrator of the Clinic, and the nurse was fired. Thereafter, the President and CEO of Guthrie Clinic, Ltd. sent a letter to Doe confirming that there had been an unauthorized disclosure of Doe’s confidential health information, that appropriate disciplinary actions had been carried out, and that steps had been taken to prevent such a breach from occurring in the future.

Doe subsequently filed this action in federal court against defendants, various affiliated entities that allegedly “owned, possessed, operated, staffed and/or otherwise controlled” the clinic. In his complaint, Doe asserted eight causes of action: (1) common-law breach of fiduciary duty to maintain the confidentiality of personal health information, (2) breach of contract, (3) negligent hiring, training, retention and/or supervision of employees, (4) negligent infliction of emotional distress, (5) intentional infliction of emotional distress, (6) breach of duty to maintain the confidentiality of personal health information under CPLR 4504, (7) breach of duty to maintain the confidentiality of personal health information under Public Health Law § 4410, and (8) breach of duty to maintain the confidentiality of personal health information under Public Health Law § 2803-c.

The United States District Court for the Western District of New York granted the defendants’ motion to dismiss all eight claims (2012 WL 531026, 2012 US Dist LEXIS 20507 [US Dist Ct, WD NY Feb. 17, 2012]).

Doe appealed the dismissal of the first five of the eight causes of action. The United States Court of Appeals for the Second Circuit affirmed the dismissal of four of the remaining five causes of action, reserving decision on his claim of breach of fiduciary duty, which is the only subject of this certified question (519 Fed Appx 719 [2d Cir 2013]).

In a separate opinion (710 F3d 492 [2d Cir 2013]), the Second Circuit found that the nurse’s actions were not foreseeable to defendants, nor were her actions taken within the scope of her employment (id. at 495). The court explained that in his complaint Doe himself alleged that the nurse was motivated by purely personal reasons and “[t]hose reasons had ‘nothing to do with [Doe’s] treatment and care’ ” (id. at 495-496, citing Doe complaint at ¶ 25). “As such,” the court held, the nurse’s “actions cannot be imputed to the defendants on the basis of respondeat superior” (id. at 496). The court certified the question to this Court, however, whether Doe may assert a specific and legally distinct cause of action against defendant for breach of the fiduciary duty of confidentiality, even when respondeat superior liability is absent (id. at 498).

Generally, a hospital or medical corporation may be held vicariously liable for the wrongful acts of its employees (see e.g. Hill v St. Clare’s Hosp., 67 NY2d 72, 79 [1986]). However, “[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]). Thus, a medical corporation is generally not liable for a tort of an employee when such an action is not within the scope of employment.

We have, in other circumstances, declined to hold a medical corporation to a “heightened duty” for an employee’s misconduct. For instance, in N.X. v Cabrini Med. Ctr., where a physician employed by the defendant hospital committed a sexual assault on a sedated patient, this Court rejected the attempt to hold the hospital strictly liable. We declined to recognize a heightened duty on the part of the hospital, explaining:

“A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety .... This sliding scale of duty is limited, however; it does not render a hospital an insurer of patient safety or require it to keep each patient under constant surveillance .... As with any liability in tort, the scope of a hospital’s duty is circumscribed by those risks which are reasonably foreseeable” (id. at 252-253).

Since the sexual assault committed by the hospital employee was “not in furtherance of hospital business” and was “a clear departure from the scope of employment, having been committed for wholly personal motives” (id. at 251), we concluded that the hospital could not be held vicariously liable.

Here, Doe urges us to impose absolute liability on the medical corporation for an employee’s dissemination of a patient’s confidential medical information. We decline to do so, and, to the extent that this rationale may have been employed in Doe v Community Health Plan—Kaiser Corp. (268 AD2d 183 [3d Dept 2000]), we reject that decision. For the same reasons stated in Cabrini, a medical corporation’s duty of safekeeping a patient’s confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment.

The dissent, in accepting Doe’s argument would impose strict liability on medical corporations for any disclosure by an employee, an approach that is unnecessary and against precedent. In cases where an injured plaintiffs cause of action fails because the employee is acting outside the scope of employment, a direct cause of action against the medical corporation for its own conduct, be it negligent hiring, supervision or other negligence, may still be maintained (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 934 [1999]). A medical corporation may also be liable in tort for failing to establish adequate policies and procedures to safeguard the confidentiality of patient information or to train their employees to properly discharge their duties under those policies and procedures. These potential claims provide the requisite incentive for medical providers to put in place appropriate safeguards to ensure protection of a patient’s confidential information. Those causes of action in the present case have already been resolved by the federal courts and we therefore do not address them.

Accordingly, the certified question should be answered in the negative.

Rivera, J.

(dissenting). Patients, who have little say in the matter, disclose their personal information to medical corporations trusting that it will be kept private. In answering the certified question in the negative, the majority limits a patient’s remedy even in cases where a corporation has failed in its duty to protect confidential information. I believe that a medical corporation’s duty extends beyond an employee’s conduct within the scope of employment, and I would answer the certified question in the affirmative.

The majority’s narrow conception of a medical corporation’s duty undermines New York’s public policy to protect the confidentiality of patients’ medical records (see Public Health Law § 2803-c [1], [3] [f]). The ease with which confidential patient information can now spread through personal digital devices and across social networks demands a strong legal regime to protect a patient’s confidentiality. A cause of action directly against a medical corporation, unhampered by questions as to whether an employee’s conduct occurred within the scope of employment, ensures the fullest protections for patients and best addresses the current realities of medical service delivery.

Comprehensive medical records are crucial to ensuring proper medical care. Medical providers, including corporate medical providers, require private medical data from patients to ensure proper treatment. A patient reveals personal data for purposes of receiving medical services, with the understanding that the patient retains a right to confidentiality in such information. Technological advances have made it possible to collect and house patient data in ways easily accessible to a patient’s doctor and other health care provider staff. Computers and cellular devices have transformed medical record keeping and health care service provision, making access to such data fast and easy. While such access surely benefits both the patient and the provider, it also increases the potential for instantaneous and extensive unauthorized disclosure of confidential patient information by a range of staff personnel. Societal interest in maintaining patient privacy in medical records is served through a robust tort system, responsive to the realities of the ease of disclosure.

In some circumstances, we have limited a medical corporation’s liability for the negligence of its employees under a theory of respondeat superior (see e.g. N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251-252 [2002]; Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933-934 [1999]; Hill v St. Clare’s Hosp., 67 NY2d 72, 79 [1986]; Suarez v Bakalchuk, 66 AD3d 419, 419 [1st Dept 2009]; Doe v Westfall Health Care Ctr., 303 AD2d 102, 110 [4th Dept 2002]; see also majority op at 484). Respondeat superior is a theory of vicarious liability that originally developed under the assumption that a master could control the conduct of an agent (see Mott v Consumers’ Ice Co., 73 NY 543, 546-547 [1878]; Restatement [Second] of Agency § 219, Comment a). The modern theory of respondeat superior gives the injured plaintiff a means to recover a remedy from well-insured employers and provides incentives for employers to hire careful employees (see Riviello v Waldron, 47 NY2d 297, 302 [1979]; Restatement [Third] of Agency § 2.04, Comment a). Nonetheless, the law limits the employer’s liability to acts “done while the servant was doing his master’s work, no matter how irregularly, or with what disregard of instructions”: acts done within the scope of employment (Riviello, 47 NY2d at 302 [citations omitted]). This limitation relieves an employer from liability for an employee’s torts when the employer neither benefits from the tortious conduct nor has the means to control the employee’s behavior.

Such limitations have no place in a negligence action against a medical corporation for disclosure of confidential medical records. As the majority notes, it is the medical corporation itself, not merely its employees, which owes the duty of confidentiality to the patient (see majority op at 485). New York’s public policy would be furthered by permitting a cause of action for breach of medical confidentiality, even in cases where an employee has acted outside the scope of employment, because patients must reveal medical data in order to obtain care from the medical corporation and the patient has no way of protecting against its unauthorized disclosure or means of controlling who has access to it.

Our decision in N.X. v Cabrini Med. Ctr. (97 NY2d 247 [2002]) recognized that a hospital owes a duty to keep patients safe, even from third parties and employees acting outside the scope of employment. In that case, a surgical resident sexually assaulted the plaintiff (id. at 249). We held that the hospital could not be held vicariously liable for the resident’s wrongdoing because he was acting outside the scope of his employment (id. at 251-252). However, that did not end the inquiry. We also held that “[a] hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety” (id. at 252) and limited “by those risks which are reasonably foreseeable” (id. at 253). In Cabrini, the hospital had an independent duty to prevent the employee who acted outside the scope of his employment from harming the plaintiff. Thus, the hospital could be liable for the breach of its duty through the inaction of its nursing staff in the face of obvious risks (see id. at 253-254). When a patient lays helpless in a hospital bed, entrusting his or her care to the hospital, the hospital has an independent duty to ensure his or her safety.

Similarly, a patient entrusts private medical information to the care of the medical corporation and its employees, over whom the patient has no control. The patient’s only surefire means to prevent accidental disclosure would be to forgo turning over the confidential information in the first place. This is not a realistic option because a patient cannot expect delivery of medical services without disclosing such data. Indeed, the medical profession encourages full disclosure by the patient of a comprehensive medical history (see AMA Code of Med Ethics Op 10.02 [2]). In order to receive treatment, a patient must reveal personal information; a patient withholds such data at his or her peril. Having turned over private information to ensure proper and adequate treatment, the patient is at the mercy of the medical corporation’s ability to protect its confidentiality. A hospital should owe a duty to keep a patient’s health information confidential, and a hospital should be directly liable for its own failure to prevent breaches of confidentiality by employees who act outside the scope of their employment.

In order to protect the patient’s privacy interests given the competing need to disclose, such a cause of action would provide a powerful incentive to medical corporations to implement protections against disclosures. Given the highly personal nature of medical data at risk of disclosure, the harm associated with dissemination of such sensitive private information, the ease with which employees of a medical corporation may access confidential data and disseminate it through the use of a commonly held and inexpensive device, a cellular telephone, and the inability of patients to protect themselves from employee misconduct, such an incentive furthers the State’s public policy in protecting the confidentiality of medical records.

The certified question should be answered in the affirmative.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Abdus-Salaam concur with Judge Pigott; Judge Rivera dissents and votes to answer the certified question in the affirmative in an opinion.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of this Court’s Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and record submitted, certified question answered in the negative.

       Subjecting hospitals and other health care entities to strict liability for the acts of an employee that were not only unauthorized, but motivated entirely by personal reasons is contrary to well-established precedent (see N.X. v Cabrini Med. Ctr, 97 NY2d 247, 252-253 [2002]; Cornell v State of New York, 46 NY2d 1032 [1979]). While the dissent finds our holding too “narrow” (see dissenting op at 486), the dissent’s reasoning is flawed for the opposite reason; it is too broad. If the dissent’s view is taken to its logical conclusion, a medical provider may be held liable in negligence for any inadvertent disclosure by an employee. As an example, if a receptionist of a private physician discloses at a cocktail party that a patient was in to see the doctor for a particular ailment, perhaps unbeknownst to the patient’s family because he did not want to worry them, under the dissent’s rule, the medical corporation would be required to respond in damages for that disclosure.

       The majority believes that claims based on vicarious liability and sounding in negligence limited to conduct within the scope of employment provide sufficient relief for a patient whose private information is wrongfully disclosed (majority op at 485). As the instant case well illustrates, those causes of action alone are inadequate to remedy a breach of the duty to maintain the confidentiality of personal data, and they provide cold comfort to a patient whose personal data is disclosed due to the status of the employee and regardless of the actions of the employer that facilitated disclosure. Our legal system must be responsive to a health care service system with its attendant comprehensive data collection, supported by technological advances that are vulnerable to access.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [5 NE3d 983, 982 NYS2d 820]
    The People of the State of New York, Respondent, v Katisha Beaty, Appellant.
    Submitted September 10, 2013;
    decided January 16, 2014

      POINTS OF COUNSEL

      Greenberg & Wilner; LLP, New York City (Harvey L. Green-berg of counsel), for appellant.
    I. The Fourth Department erred when it granted assigned counsel’s motion to withdraw because (a) defendant’s pro se brief included non-frivolous claims, and (b) defendant did not receive effective assistance of counsel when counsel chose not to serve as an advocate for his client, but rather disparaged the client’s claims in front of the Court. (People v Crawford, 71 AD2d 38; People v Vasquez, 70 NY2d 1; Anders v California, 386 US 738; North Carolina v Alford, 400 US 25; People v Brown, 107 AD3d 1303; People v Boyd, 12 NY3d 390; People v Van Deusen, 7 NY3d 744; People v Hill, 9 NY3d 189; People v Samms, 95 NY2d 52.) II. The Fourth Department erred when it affirmed the 2010 Erie County Court’s re-sentencing.

      Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), for respondent.
    Defendant has failed to demonstrate that the Fourth Department erred in granting assigned counsel’s motion to be relieved of assignment, or that she was denied the effective assistance of appellate counsel or the effective assistance of counsel at her re-sentence. (People v Iannelli, 69 NY2d 684, 482 US 914; People v Ruz, 70 NY2d 942; Evitts v Lucey, 469 US 387; Douglas v California, 372 US 353; People v Stokes, 95 NY2d 633; Anders v California, 386 US 738; People v Gonzalez, 47 NY2d 606; People v Crawford, 71 AD2d 38; People v Rucker, 67 AD3d 1126; People v Boyd, 12 NY3d 390.)
   OPINION OF THE COURT

Per Curiam.

On November 13, 2000, defendant pleaded guilty to first-degree manslaughter for the shooting of Anton Bridgers on March 18, 2000. She was sentenced to a determinate sentence of 23 years’ incarceration. No mention of postrelease supervision (PRS) was ever made to defendant, either during the plea proceedings or at sentencing. After her incarceration, the Department of Correctional Services added a five-year PRS term to her certificate of commitment. The first time defendant learned of the PRS period was in August 2002, when her attorney wrote defendant to inform her. That attorney did not advise defendant as to whether she could raise an issue concerning the legality of the added PRS term on her then-pending appeal. Defendant’s conviction was unanimously affirmed (303 AD2d 965 [4th Dept 2003], lv denied 100 NY2d 559 [2003]).

In September 2009, following this Court’s decision in People v Catu (4 NY3d 242 [2005]), defendant filed a pro se motion pursuant to CPL 440.10, claiming, among other things, that her plea was defective and thus her sentence was illegal because she was never informed during her plea or sentencing proceeding that she would be required to serve an additional term of five years’ PRS. She sought vacatur of both her plea and sentence. The People opposed the motion, but conceded that the sentence was illegal. The People consented, pursuant to the then-recently enacted Penal Law § 70.85, to the court re-sentencing defendant to the original determinate sentence of 23 years’ incarceration without a term of PRS.

Defendant timely appealed the resentence and was assigned counsel, who reviewed the file and informed defendant of our decision in People v Boyd (12 NY3d 390 [2009]), where this Court upheld defendant Boyd’s sentence under Penal Law § 70.85, but left open the constitutionality of that statute, stating that it should be decided by the sentencing court in the first instance. Despite this open issue, counsel filed a motion pursuant to People v Crawford (71 AD2d 38 [1979]) arguing that there were no non-frivolous issues to be raised on defendant’s behalf and asking to be relieved as counsel. Defendant filed a pro se supplemental brief arguing that her sentence was illegal, and that she was denied effective assistance of counsel. The Appellate Division granted counsel’s motion and affirmed the resentence, without addressing defendant’s pro se contentions (96 AD3d 1515 [2012]).

The rule in Crawford permits appellate counsel to withdraw from representing a defendant if the appeal is “wholly frivolous” because a defendant whose appeal is frivolous has no right to have an advocate make his case to the appellate court (71 AD2d 38, 38 [1979]).

Defendant argues that her appeal was not wholly frivolous because she had two claims: (1) the claim that Penal Law § 70.85 is unconstitutional as applied to her case, and (2) that defendant was denied effective assistance of counsel at every level. We agree with defendant that the Appellate Division erred in granting the Crawford motion. Without expressing any opinion on the ultimate merits, at the time defendant’s appellate counsel filed his Crawford motion, the claims to that court were not wholly frivolous and, therefore, the court should have denied appellate counsel’s motion. As a result, a reversal and remittal for a de novo appeal is warranted (see People v Stokes, 95 NY2d 633 [2001]; see generally People v Pignataro, 22 NY3d 381 [2013]; People v Catu, 4 NY3d 242 [2005]).

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Saiaam concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.

        See also Anders v California, 386 US 738 (1967).


author: Chief Judge Lippman.

text:
    [5 NE3d 985, 982 NYS2d 822]
    The People of the State of New York, Respondent, v David W. Schreier, Appellant.
    Argued January 6, 2014;
    decided February 13, 2014

      POINTS OF COUNSEL

      Lipsitz Green Scime Cambria, LLP, Buffalo (Timothy P. Murphy of counsel), for appellant.
    The evidence was legally insufficient to convict appellant of second-degree unlawful surveillance under Penal Law § 250.45 (1). (People v Malizia, 62 NY2d 755; People v Bleakley, 69 NY2d 490; People v Misevis, 76 NY2d 777; People v Ramos, 19 NY3d 133; Jackson v Virginia, 443 US 307; People v Finger, 95 NY2d 894; People v Gray, 86 NY2d 10; People v Newman, 87 AD3d 1348; Matter of Kayla F., 39 AD3d 983; People v Church, 31 AD3d 892.)

      Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), for respondent.
    The verdict was supported by legally sufficient evidence. (People v Smith, 6 NY3d 827, 548 US 905; People v Contes, 60 NY2d 620; Matter of Kadeem W., 5 NY3d 864; People v Steinberg, 79 NY2d 673; People v Barnes, 50 NY2d 375; People v Willis, 79 AD3d 1739, 16 NY3d 864; People v Byron, 17 NY2d 64; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; People v Zapata, 41 AD3d 109; People v Thomas, 36 NY2d 514.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether there is legally sufficient evidence to support defendant’s conviction for the crime of unlawful surveillance in the second degree (Penal Law § 250.45). We find that each element of the offense was established beyond a reasonable doubt and therefore affirm.

Just before 7:30 a.m. on December 24, 2008, defendant stood outside the front door of his neighbor’s townhouse and used his compact video camera to film complainant while she was naked in her second floor bathroom. Complainant had just emerged from the shower and had opened the bathroom door to allow the steam to dissipate and to be able to hear her sleeping child if he awoke. Defendant recorded her for several minutes as she saw to her personal hygiene. He used the camera’s zoom feature and adjusted the focus in order to obtain closer views. When complainant happened to look at the front door, she noticed a red light and saw a black-gloved hand holding a camera. She then quickly shut the bathroom door and called the police.

The bathroom was located at the top of the stairs, almost directly in line with the front door to the townhouse. The front door was solid wood with a semi-circular, decorative window near the top and a peephole at eye level, which allowed the occupants to see outside. The placement of the decorative window was such that a person of average height standing outside the door would not be tall enough to see through into the second floor bathroom.

Upon their arrival, the police observed footsteps in the snow, concentrated between complainant’s door and defendant’s townhouse, adjacent to hers. When the officers asked defendant about the incident, he ultimately admitted taking the video and gave the police his camera and a memory card. An investigator from the district attorney’s office (who, like defendant, was six feet, two inches tall), testified that in order to obtain images of the bathroom through the window, he had to hold the camera over his head.

Defendant was convicted, after a nonjury trial, of unlawful surveillance in the second degree. County Court denied his motion for a trial order of dismissal (29 Mise 3d 1191 [Monroe County Ct 2010]). The Appellate Division affirmed, finding that the evidence established that defendant had surreptitiously recorded complainant for his own amusement or entertainment at a time and place where she had a reasonable expectation of privacy (96 AD3d 1453 [4th Dept 2012]). A Judge of this Court granted defendant leave to appeal (19 NY3d 1105 [2012]), and we now affirm.

As relevant here, a person is guilty of the crime of unlawful surveillance in the second degree when, for his or her own:

“amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent” (Penal Law § 250.45 [1]).

Defendant concedes that complainant was unaware of, and did not consent to, being observed and recorded. He argues, however, that legally sufficient evidence was lacking as to certain other statutory elements.

This legislation, known as Stephanie’s Law (L 2003, ch 69), was enacted to combat “video voyeurism” (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 250.40 at 250). The woman for whom the law was named had been secretly recorded in her bedroom by her landlord, who had placed a hidden camera in a smoke detector (see id,.). Although the genesis of the statute was a case involving a recording device that was hidden from all public view, there is no indication that the legislature intended that the term “surreptitiously” be read so narrowly.

Defendant maintains that there is insufficient evidence that the recording was surreptitiously made, within the meaning of the statute, because his conduct was out in the open and in full public view. The Penal Law provides definitions for several of the words and phrases relating to unlawful surveillance, but does not define the term “surreptitiously.” Nor does the legislative history furnish any guidance regarding the significance of this particular term. We therefore apply its common meaning (see e.g. People v Quinto, 18 NY3d 409, 417 [2012])—something done “by stealth” or “clandestinely” (Merriam-Webster’s Collegiate Dictionary [11th ed 2003], surreptitiously). The statute, then, requires that the perpetrator make an effort to conceal his conduct or to escape detection. In other words, the element of surreptitiousness is clearly not duplicative of the requirement that the recording be made without the victim’s knowledge or consent. Contrary to defendant’s argument, however, it is not necessary that the conduct be entirely imperceptible to all members of the general public. Rather, whether a defendant’s actions can be considered surreptitious is dependent upon the particular facts and circumstances presented.

Here, viewing the evidence in the light most favorable to the People, defendant’s conduct was surreptitious in nature. Although he was standing on complainant’s front step, potentially exposed to public view, it was at 7:30 a.m. on Christmas Eve. The argument that defendant’s conduct was completely out in the open, for anyone who happened by to see, is undermined given the predawn hour. Moreover, defendant was holding the small black camera in his black-gloved hand. In addition, he apparently had to hold the camera over his head, in the air, in order to get the proper angle and used the zoom function. Under the circumstances, there is legally sufficient evidence that defendant was acting in a furtive or stealthy manner, attempting to obtain the video of complainant without being discovered—in other words, that he was acting surreptitiously.

Defendant also argues that complainant did not have a reasonable expectation of privacy because her unclothed body could be seen from a lawful public vantage point without the need for technological enhancement, such as a telephoto lens. The Penal Law defines a “place and time when such person has a reasonable expectation of privacy” as “a place and time when a reasonable person would believe that he or she could fully disrobe in privacy” (Penal Law § 250.40 [1]).

One’s own bathroom must certainly be the quintessential example of a location where an individual should expect privacy. To be sure, complainant did have the bathroom door open and, as it turned out, was videoed from the front step. However, there is no indication that complainant had any inkling that she could be seen from outside or that she needed to take any measures to shield herself from view. Indeed, when she realized that she was being videoed, she immediately closed the bathroom door. Given the early morning hour, the height of the front door window and that the six feet, two inch defendant apparently had to hold the camera over his head in order to obtain the necessary angle, a reasonable person would expect that complainant could disrobe with privacy in her second floor bathroom. It cannot be that the legislature intended New Yorkers to have to shutter their own residences completely in order to garner the protection of this Penal Law provision. Defendant’s conduct was an unmistakable violation of complainant’s reasonable expectation of privacy and the evidence was legally sufficient to support this element of the offense.

Defendant urges us to evaluate the reasonableness of complainant’s expectation of privacy using Fourth Amendment jurisprudence. We decline to do so. As noted above, the legislature expressly defined the “reasonable expectation of privacy” for purposes of this statute. Moreover, the Fourth Amendment’s concern with protecting citizens from unreasonable government intrusions into their private matters would appear to have limited relevance in this context (see e.g. People v Adler, 50 NY2d 730, 736-737 [1980]).

Defendant’s remaining argument is without merit.

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

Judges Gkaffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Order affirmed.

       Indeed, in its decision denying the motion for a trial order of dismissal, County Court found that it was still dark outside at the time of the offense (see 29 Misc 3d 1191, 1193 [2010]). Moreover, we can take judicial notice that sunrise was at 7:41 a.m. that day (see United States Naval Observatory, Astronomical Applications Department, Complete Sun and Moon Data for One Day, Form A - U.S. Cities or Towns, Dec. 24, 2008, Rochester, New York, http://aa.usno.nayy.mil/data/docs/RS_OneDay.php [accessed Jan. 23, 2014]).


author: Read, J.

text:
    [5 NE3d 993, 982 NYS2d 830]
    New York Hospital Medical Center of Queens, Appellant, v Microtech Contracting Corp., Respondent.
    Argued January 6, 2014;
    decided February 13, 2014

      POINTS OF COUNSEL

      Mauro hilling Naparty LLP, Woodbury (Timothy J. O’Shaughnessy and Matthew W Naparty of counsel), for appellant.
    The order of the Appellate Division should be reversed and Microtech Contracting Corp.’s motion denied because Micro-tech’s motion was based entirely on an illegal contract. (Riggs v Palmer, 115 NY 506; Manning v Brown, 91 NY2d 116; Balbuena v IDR Realty LLC, 6 NY3d 338; Carmine v Murphy, 285 NY 413; International Spangles Corp. v Marrow Mfg. Corp., 294 NY 295; Stone v Freeman, 298 NY 268; Spivak v Sachs, 16 NY2d 163; El Gemayel v Seaman, 72 NY2d 701; Richards Conditioning Corp. v Oleet, 21 NY2d 895; Morgan Munitions Supply Co. v Studebaker Corp. of Am., 226 NY 94.)

      Wade Clark Mulcahy, New York City (Dennis M. Wade and Cheryl D. Fuchs of counsel), for respondent.
    I. It is not the role of the judiciary to read an exception into the Workers’ Compensation Law when the legislature has clearly spoken as evidenced by the clear wording of the statute. (Matter of Ramroop v Flexo-Craft Print., Inc., 11 NY3d 160; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; People v Friedman, 302 NY 75; Morales v County of Nassau, 94 NY2d 218; Lawrence Constr. Corp. v State of New York, 293 NY 634.) II. The New York Hospital Medical Center of Queens’ claim is barred by the Workers’ Compensation Law because the language of the law is unambiguous and does not contain an exception where the employee is an illegal immigrant. III. This Court has already ruled that the Workers’ Compensation Law applies where the employee is an illegal immigrant. (Matter of Ramroop v Flexo-Craft Print., Inc., 11 NY3d 160; Matter of Testa v Sorrento Rest., 10 AD2d 133, 8 NY2d 705; Matter of Post v Burger & Gohlke, 216 NY 544; Coque v Wildflower Estates Devs., Inc., 31 AD3d 484; Balbuena v IDR Realty LLC, 6 NY3d 338; Matter of Amoah v Mallah Mgt., LLC, 57 AD3d 29.) IV The workers’ compensation bar applies even if the employment is “illegal,” and an alleged violation of immigration law does not defeat the application of Workers’ Compensation Law § 11. (Noreen v Vogel & Bros., 231 NY 317; Decker v Pouvailsmith Corp., 207 App Div 853; Matter of Blanchard v Integrated Food Sys., 220 AD2d 895; Martinkowski v Carborundum Co./Electro-Min. Div., 108 Misc 2d 184.) V Courts apply the workers’ compensation bar even where the employer violates federal law. (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124; Rosasco Creameries, Inc. v Cohen, 276 NY 274; Charlebois v Weller Assoc., 72 NY2d 587; Balbuena v IDR Realty LLC, 6 NY3d 338; Matter of Amoah v Mallah Mgt., LLC, 57 AD3d 29; De Canas v Bica, 424 US 351.) VI. The New York Hospital Medical Center of Queens’ argument is premised on an “illegal” contract. However, the Workers’ Compensation Law applies even without a contract. Micro tech Contracting Corp. is not asking this Court to enforce a contract, let alone an illegal one. (Thompson v Grumman Aerospace Corp., 78 NY2d 553; Vanderwerff v Victoria Home, 299 AD2d 345; Spivak v Sachs, 16 NY2d 163; McConnell v Commonwealth Pictures Corp., 7 NY2d 465; International Spangles Corp. v Marrow Mfg. Corp., 294 NY 295; Carmine v Murphy, 285 NY 413; Richards Conditioning Corp. v Oleet, 21 NY2d 895; Reiner v North Am. Newspaper Alliance, 259 NY 250; Sprung v Jaffe, 3 NY2d 539; Matter of Clarke v Town of Russia, 283 NY 272.) VII. No public policy reason exists to support a rewriting of the Workers’ Compensation Law. (Morales v County of Nassau, 94 NY2d 218; Matter of Sackolwitz v Hamburg & Co., 295 NY 264; People v Friedman, 302 NY 75; Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Morales v Gross, 230 AD2d 7.) VIII. The New York Hospital Medical Center of Queens rightly abandons its argument that the Workers’ Compensation Law is preempted by the Immigration Reform and Control Act (IRCA) because this Court has already ruled that IRCA does not preempt state law. (Matter of Ramroop v Flexo-Craft Print., Inc., 11 NY3d 160; Matter of Amoah v Mallah Mgt., LLC, 57 AD3d 29; Balbuena v IDR Realty LLC, 6 NY3d 338; Madeira v Affordable Hous. Found., Inc., 469 F3d 219.)
   OPINION OF THE COURT

Read, J.

In Balbuena v IDR Realty LLC (6 NY3d 338, 363 [2006]), we held that an injured employee’s status as an undocumented alien does not preclude recovery of lost wages in a personal injury action against a landowner under the State’s Labor Law. This appeal asks us to look at the other side of the coin and decide if an employer’s statutory rights under the Workers’ Compensation Law are extinguished merely because its injured employee is an undocumented alien; specifically, whether the employer may still invoke section ll’s shield against third-party claims for common-law contribution and indemnification. We conclude that, under the facts and circumstances presented by this case, the employees’ immigration status does not affect the employer’s rights under Workers’ Compensation Law § 11, and therefore affirm the Appellate Division.

I

In early 2008, plaintiff New York Hospital Medical Center (the hospital) engaged defendant Microtech Contracting (Micro-tech) to undertake demolition in a basement room housing an incinerator at the hospital’s location in Flushing, Queens. On March 6, 2008, a Microtech “supervisor” met with brothers Luis and Gerardo Lema, and hired them to perform this work. The Lemas, originally from Ecuador, were undocumented aliens not legally employable in the United States.

After the men reached the worksite, the Microtech employee supplied the Lemas with a sledge hammer and a chipping gun (essentially a small jackhammer) and explained what they were supposed to do. The Lemas first broke apart and removed a cement platform and then began taking down a metal wall. The vibrations created by use of the tools given them evidently dislodged a metal chimney or flue attached to the wall between 11 and 20 feet above the floor. The chimney toppled, and struck and injured them both.

The brothers made claims for and received workers’ compensation benefits, which Microtech’s insurance carrier paid. Additionally, by complaint dated August 8, 2008, the Lemas sued the hospital for violations of the Labor Law. This is exactly the kind of lawsuit that Balbuena permits to go forward, at least absent proof that the undocumented alien tendered false work authorization documents to gain employment (see Balbuena, 6 NY3d at 363). In a decision dated November 19, 2010, Supreme Court granted the Lemas summary judgment on liability on their causes of action grounded in Labor Law §§ 240 (1) and 241 (6). According to the hospital’s attorney, the parties entered into a high-low agreement at the ensuing damages trial, and after the verdict, the judgment was paid in keeping with this arrangement.

Meanwhile, by summons and complaint dated September 20, 2010, the hospital brought this action for common-law and contractual contribution and indemnification against Microtech to recover any damages it incurred in the Labor Law litigation with the Lemas. The hospital alleged that Microtech was performing the work on March 6, 2008 pursuant to an agreement and/or contract with it; that Microtech breached this contract and/or agreement and violated the Immigration Reform and Control Act (8 USC § 1324a) (IRCA) when it hired the Le-mas; that the Lemas were injured solely on account of Micro-tech’s negligence; and that Workers’ Compensation Law § 11 did not preclude its lawsuit against Microtech. Section 11 bars third-party lawsuits for contribution and indemnification against an injured employee’s employer unless the employee suffered a “grave injury,” limited to death and the exclusive list of disabilities defined in the statute, or the employer agreed to contribution and indemnification in a written contract entered into with the third party prior to the accident.

In lieu of answering, Microtech moved on November 24, 2010 to dismiss the hospital’s complaint on the grounds of documentary evidence and failure to state a cause of action (see CPLR 3211 [a] [1], [7]). Microtech took the position that section 11 barred the hospital’s action because documentary evidence (the bill of particulars in the underlying personal injury lawsuit and an unsigned purchase order postdating the accident) showed that the Lemas did not suffer a grave injury and that Microtech did not enter into the requisite written contract providing for contribution or indemnification. And without proof of a grave injury or contractual contribution or indemnification, Microtech argued, the hospital did not state a claim. Moreover, Microtech contended, noncompliance with IRCA (which it disputed) would not deprive it of the protection of section 11 since the Workers’ Compensation Law applies to all workers within the state’s borders regardless of their immigration status.

Solely for purposes of responding to Microtech’s motion, the hospital did not argue that the Lemas suffered grave injuries or that Microtech had agreed in writing to contribution or indemnification. Moreover, the hospital stressed that its claim did not affect the relationship between Microtech and its employees, the Lemas. The hospital insisted, however, that Micro-tech should not be allowed to “hid[e] behind the language of Workers’ Compensation Law § 11 after violating a federal statute” since “New York courts have long held that they will not award a plaintiff the benefit of an illegal bargain.”

On August 15, 2011, Supreme Court granted Microtech’s motion to dismiss on the ground that the complaint did not state a cause of action. The judge reasoned that “[t]he exceptions to [section ll’s] bar of claims for indemnity and contribution (against an employer providing Workers’ Compensation benefits such as Microtech) do not include the circumstance accepted as true herein for purposes of this motion—essentially, that Micro-tech employed unauthorized aliens who were injured on the job.” (2011 NY Slip Op 33671[U], *3-4 [2011].) The hospital appealed.

In the Appellate Division, the hospital again protested that Microtech may not “profit” from its violation of IRCA. Additionally, the hospital more clearly argued conflict preemption—i.e., that permitting an employer who knowingly hires undocumented workers to enjoy the tort immunity conferred by section 11 conflicts with IRCA’s goal to discourage illegal immigration by decreasing employment opportunities for undocumented workers. Microtech made three responses. First, Micro-tech argued that section 11 barred the hospital’s claim, as stated by Supreme Court. Next, Microtech countered that whereas hiring an undocumented worker knowingly or without verifying employment eligibility is unlawful and exposes an employer to penalties under IRCA, this circumstance does not make IRCA “conflict [with], contradict or supersede” New York’s Workers’ Compensation Law. According to Microtech, since it is well settled that the Workers’ Compensation Law applies to undocumented aliens, the statute logically also covers the employer who hires undocumented workers. Finally, Microtech asserted that it did not “profit” from the alleged IRCA violation because it paid premiums to its insurance carrier to obtain medical care and compensation benefits for its employees, including the Le-mas.

The Appellate Division unanimously affirmed (98 AD3d 1096 [2d Dept 2012]). Citing repeatedly to Balbuena, the court acknowledged that “precluding [Microtech] from receiving the protections provided by Workers’ Compensation Law § 11 for its violations of the IRCA [might] support [that statute’s] ultimate goals ... by punishing [Microtech] for failing to verify the [Le-mas’] immigration status” (id. at 1100). Nonetheless, the court opined, “affording [Microtech] the economic protections of Workers’ Compensation Law § 11 . . . would not stand as an obstacle to the accomplishment or execution of the full purposes and objectives of Congress such that Workers’ Compensation Law § 11 should be considered preempted” (id. [internal quotation marks omitted]). Further, to rule in the hospital’s favor would “effectively deny [Microtech] the economic protections it acquired under the Workers’ Compensation Law in return for providing [the Lemas] with compensation for their injuries,” as well as “relieve [the hospital] of its responsibility to ensure a safe construction site for workers under the Labor Law” (id.). Accordingly, the Appellate Division held that the IRCA violations alleged did not abrogate the protection from third-party claims afforded to Microtech by section 11. By decision and order dated March 13, 2013, the Appellate Division denied the hospital’s motion to reargue, and instead granted leave to appeal to us and certified the following question, “Was the decision and order of [the Appellate Division] properly made?”

II

In the lower courts the parties contested whether IRCA preempts section ll’s shield against third-party claims for common-law contribution and indemnification, and the Appellate Division’s decision turned on its disposition of this issue. Before us, however, the hospital has chosen not to assert conflict preemption. Rather, as stated in its brief,

“the Hospital argues only that the employment contracts between Microtech and the Lemas were illegal contracts that are unenforceable in New York Courts. Thus, Microtech may not defend this case on the ground that the Lemas were its employees and therefore the action is barred by section 11 of the WCL. Microtech violated federal law when it hired the Lemas without asking for any documentation showing they were authorized to work in the United States.”

It is true that New York courts typically do not assist parties in taking advantage of their own wrongs (see e.g. Manning v Brown, 91 NY2d 116 [1997]; Riggs v Palmer, 115 NY 506, 511 [1889]), or enforce illegal contracts (Spivak v Sachs, 16 NY2d 163 [1965]; Stone v Freeman, 298 NY 268 [1948]). But these principles are beside the point in this case: we are not being called upon to enforce or recognize rights arising from an illegal oral employment contract between Microtech and the Lemas, and Microtech is not raising any such employment contract as a defense to common-law contribution or indemnification. Indeed, section 11 does not even require an underlying employment contract (see Workers’ Compensation Law § 201 [in defining the terms “employee” and “employment” for the purposes of the Workers’ Compensation Law, the existence of a contract is not a requirement]). Instead, we are being asked to apply the statute to the facts presented.

In any event, we essentially rejected the hospital’s argument in Balbuena, where the dissent (citing many of the same cases relied upon by the hospital) would have denied recovery to the plaintiffs in their state Labor Law lawsuits on the ground that “the courts will not aid in achieving the purpose of an illegal transaction” (Balbuena, 6 NY3d at 363, 363-368 [Smith, J., dissenting]). If the illegality of the employment contract does not defeat the employee’s rights under an otherwise applicable state statute, as was the case in Balbuena, it is not clear why it would nonetheless annul the employer’s statutory rights.

Under New York’s workers’ compensation scheme, an employee receives medical benefits and compensation for workplace injuries, regardless of fault, paid for by the employer. In exchange for this certain and swift remedy, the employee gives up the right to sue the employer for personal injuries. Over time, however, this trade-off was seriously compromised by our decision in Dole v Dow Chem. Co. (30 NY2d 143 [1972]). Dole allowed “a primary defendant in an action [to] seek unlimited contribution or indemnification from an employer as a third party . . . although a direct action against the employer would be barred by the exclusivity provisions of the workers’ compensation system” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 635 at 54-55, 1996 NY Legis Ann at 459-460). As amended by the legislature in 1996, then, section 11 now explicitly limits an employer’s exposure to third-party liability to those situations where the employee suffers a grave injury, or the employer enters into a written contract of contribution or indemnification with the third party (id. at 55, at 460). As this case is presented to us, the Lemas did not suffer grave injuries, there was no preexisting agreement for contractual contribution or indemnification and the hospital does not contend that IRCA preempts section 11; therefore, Microtech is entitled to the safe harbor in section 11.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground that it is unnecessary.

Chief Judge Lippman and Judges Graffeo, Smith, Pigott, Rivera and Abdus-Saeaam concur.

Order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary.

      . IRCA makes it unlawful for a person or entity to hire an unauthorized alien for employment in the United States, either knowingly or without complying with the statute’s verification requirements (see 8 USC § 1324a [a] [1] [A], [B]; see generally Balbuena, 6 NY3d at 353-354).

      . Specifically, section 11 states that
      “[t]he liability of an employer [to pay workers’ compensation benefits] shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom ....

        “For purposes of this section the terms ‘indemnity’ and ‘contribution’ shall not include a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered.
      “An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury’ which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”

      . Microtech conceded receipt of this purchase order solely for purposes of its motion to dismiss.

      . We have actually never addressed the precise question of whether, or under what circumstances, IRCA may preempt the Workers’ Compensation Law. Balbuena dealt with alleged violations of the State’s Labor Law. In support of our holding in Balbuena, we simply noted that courts in other states have held workers’ compensation statutes, which like the State’s Labor Law are intended to protect workers, to be “applicable to all persons within the state’s borders, even those who are not entitled to be here” (Balbuena, 6 NY3d at 359 n 6). In Matter of Ramroop v Flexo-Craft Print., Inc. (11 NY3d 160 [2008]), as in this case, the parties did not dispute that an injured employee was entitled to workers’ compensation benefits. As a result, the only issue before us in Ramroop was whether the employee’s status as an undocumented worker prevented him from recovering “additional compensation” pursuant to Workers’ Compensation Law § 15 (3) (v), and we held that it did. By contrast, the Appellate Division has explicitly held that IRCA does not preclude an injured worker who is an undocumented alien from collecting workers’ compensation benefits, even if the employee used fraudulent paperwork to obtain the work (see Matter of Amoah v Mallah Mgt., LLC, 57 AD3d 29 [3d Dept 2008]).

      . In its reply brief, the hospital reemphasizes its stance that “because Microtech violated federal law when it hired the Lema brothers, the employment contract between Microtech and the Lemas cannot be enforced in Court and thus Microtech may not raise it as a defense to the hospital’s action for indemnification and/or contribution.”


author: Smith, J.

text:
    [5 NE3d 989, 982 NYS2d 826]
    Executive Plaza, LLC, Appellant, v Peerless Insurance Company, Respondent.
    Argued January 6, 2014;
    decided February 13, 2014

      POINTS OF COUNSEL

      Jaroslawicz & Jaros LLC, New York City (David Jaroslawicz and David Tolchin of counsel), for appellant.
    I. The policy has no stated time limit on reconstruction, other than that it must be completed “as soon as reasonably possible.” (Bakos v New York Cent. Mut. Fire Ins. Co., 83 AD3d 1485, 86 AD3d 933; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27; Miller v Continental Ins. Co., 40 NY2d 675; Palmieri v Allstate Ins. Co., 445 F3d 179.) II. As the insured has no right to payment until the replacement is completed, its claim for reimbursement of replacement costs accrues when that condition has been met, not before. (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399; MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640; Hahn Automotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765; Cary v Koerner, 200 NY 253; Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; John J. Kassner & Co. v City of New York, 46 NY2d 544; Steen v Niagara Fire Ins. Co., 89 NY 315; Martin v Edwards Labs., Div. of Am. Hosp. Supply Corp., 60 NY2d 417.) III. The inherent policy contradiction must be resolved in favor of the plaintiff insured. (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; Ace Wire &

      Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390; Breed v Insurance Co. of N. Am., 46 NY2d 351; Miller v Continental Ins. Co., 40 NY2d 675; Dean v Tower Ins. Co. of N.Y., 19 NY3d 704; Israel v Chabra, 12 NY3d 158; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42; Breed v Insurance Co. of N. Am., 46 NY2d 351.) IV Any argument that plaintiff agreed not to sue is void as against public policy. (Bersani v General Acc. Fire & Life Assur. Corp., 36 NY2d 457.) V No ordinary business owner would reasonably believe the building had to be rebuilt entirely within two years of the fire or lose insurance coverage, no matter how devastating the fire was. (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; Cragg v Allstate Indem. Corp., 17 NY3d 118; State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d 349; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390.) VI. A policy that requires the insured to do the impossible offers terms less favorable than the standard fire policy and is not reasonable. (Northville Indus. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621; Lane v Security Mut. Ins. Co., 96 NY2d 1; TAG 380, LLC v ComMet 380, Inc., 10 NY3d 507; 1303 Webster Ave. Realty Corp. v Great Am. Surplus Lines Ins. Co., 63 NY2d 227; John J. Kassner & Co. v City of New York, 46 NY2d 544.)

      Robins, Kaplan, Miller & Ciresi L.L.P. (John N. Love, of the Massachusetts bar, admitted pro hac vice, of counsel) and Mura & Storm, PLLC, Buffalo (Scott Storm of counsel), for respondent.
    I. The suit limitation provision in the Peerless Insurance Company policy is based on the New York standard fire policy, and must be construed the same way. (Fabozzi v Lexington Ins. Co., 601 F3d 88.) II. The two-year suit limitation period begins on the date of the fire. (Proc v Home Ins. Co., 17 NY2d 239.) III. The two-year suit limitation is a clear and unambiguous expression of New York’s public policy. (Bargaintown D. C. v Bellefonte Ins. Co., 78 AD2d 206, 54 NY2d 700; Medical Facilities v Pryke, 62 NY2d 716; 1303 Webster Ave. Realty Corp. v Great Am. Surplus Lines Ins. Co., 63 NY2d 227; Wydallis v United States Fid. & Guar. Co., 98 AD2d 642; Ackerman v Price Waterhouse, 84 NY2d 535; Heilbrunn v German Alliance Ins. Co. of N.Y., 202 NY 610; Gregoire v Putnam’s Sons, 298 NY 119; Windsor Metal Fabrications v General Acc. Ins. Co. of Am., 94 NY2d 124.) IV The Bakos v New York Cent. Mut. Fire Ins. Co. (83 AD3d 1485 [4th Dept 2011]) decision of the Appellate Division does not support Executive Plaza, LLC’s position. (Elfenbein v Gulf & W. Indus., Inc., 590 F2d 445; Wynder v McMahon, 360 F3d 73.) V The “ordinance or law” provision supports the two-year suit limitation rather than overruling it. (Misicki v Caradonna, 12 NY3d 511; Devlin v Video Servs. Acquisition, 188 AD2d 370.) VI. The suit limitation and replacement cost provisions work together. (Northville Indus. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621; County of Columbia v Continental Ins. Co., 83 NY2d 618; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Israel v Chabra, 12 NY3d 158; Jacobson Family Invs., Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 102 AD3d 223; Hartigan v Casualty Co. of Am., 227 NY 175; TAG 380, LLC v ComMet 380, Inc., 10 NY3d 507; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 66 NY2d 1020; O’Keeffe v City of New York, 173 NY 474.) VII. The Peerless Insurance Company policy provides terms more favorable than the standard fire policy. (Woodhams v Allstate Fire & Cas. Co., 453 F Appx 108.) VIII. A reasonable business owner would read and understand the policy’s two-year suit limitation provision. (Katz v American Mayflower Life Ins. Co. of N.Y., 14 AD3d 195, affd sub nom. Goldman v Metropolitan Life Ins. Co., 5 NY3d 561; Blitman Constr. Corp. v Insurance Co. of N. Am., 66 NY2d 820; Medical Facilities v Pryke, 62 NY2d 716; 1303 Webster Ave. Realty Corp. v Great Am. Surplus Lines Ins. Co., 63 NY2d 227; Breed v Insurance Co. of N. Am., 46 NY2d 351, 46 NY2d 940; In re Ambassador Group, Inc. Litig., 738 F Supp 57; Cornellier v American Cas. Co., 389 F2d 641; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470.)

      Amy Bach, San Francisco, California, and Anderson Kill PC., New York City (William G. Passannante of counsel), for United Policyholders, amicus curiae.
    I. The average policyholder would not reasonably expect the replacement cost provision to require replacement of the property within two years. (Federal Ins. Co. v International Bus. Machs. Corp., 18 NY3d 642; Cragg v Allstate Indem. Corp., 17 NY3d 118; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377; National Football League v Vigilant Ins. Co., 36 AD3d 207; Bakos v New York Cent. Mut. Fire Ins. Co., 83 AD3d 1485; Becker-Fineman Camps v Public Serv. Mut. Ins. Co., 52 AD2d 656.) II. Application of the two-year suit limitations clause to the policyholder’s claim for replacement costs creates an ambiguity that must be resolved in favor of the policyholder. (Campanile v State Farm Gen. Ins. Co., 161 AD2d 1052, 78 NY2d 912; Saks v Nicosia Contr. Corp., 215 AD2d 832; State Farm Mut. Auto. Ins. Co. v Bentley, 262 AD2d 739; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Lavanant v General Acc. Ins. Co. of Am., 79 NY2d 623; Burriesci v Paul

      Revere Life Ins. Co., 255 AD2d 993.) III. Allowing insurance companies to deny coverage when policyholders acting reasonably cannot complete repairs within two years is against the purpose of insurance. (Rubin v Empire Mut. Ins. Co., 57 Misc 2d 104, 32 AD2d 1, 25 NY2d 426; American Home Prods. Corp. v Liberty Mut. Ins. Co., 565 F Supp 1485, 748 F2d 760; Klos v Lotnicze, 133 F3d 164; First Fin. Ins. Co. v Allstate Interior Demolition Corp., 193 F3d 109; Eagle Star Ins. Co. v International Proteins Corp., 45 AD2d 637, 38 NY2d 861; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187.) IV Application of the two-year suit limitation to claims for replacement costs would render replacement cost coverage illusory in violation of public policy. (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; Matter of Nationwide Mut. Ins. Co. v Davis, 195 AD2d 561.)

      Wilkofsky, Friedman, Karel & Cummins, New York City (Mark L. Friedman of counsel), for New York Public Adjusters Association, amicus curiae.
    I. Plaintiffs claim for the replacement cost holdback is governed by the six-year statute of limitations applicable to general contract actions. (Ditch v Hartford Fire Ins. Co., 149 AD2d 957; City of Poughkeepsie v Black, 130 AD2d 541; Guadagno v Colonial Coop. Ins. Co., 101 AD2d 947.) II. Executive Plaza, LLC’s second lawsuit is timely as it relates back to the first. (Vastola v Maer, 48 AD2d 561; McCarthy v Volkswagen of Am., 55 NY2d 543; Pendleton v City of New York, 44 AD3d 733.) III. Public policy mitigates against a policyholder being denied policy benefits which were bargained for. (Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187; Joseph R. Loring & Assoc. v Continental Cas. Co., 56 NY2d 848; Lyon v Hersey, 103 NY 264; Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573.) IV Peerless Insurance Company’s position exemplifies illusory coverage. (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; Slayko v Security Mut. Ins. Co., 183 Misc 2d 688, 98 NY2d 289; Matter of Nationwide Mut. Ins. Co. v Davis, 195 AD2d 561; Brockway-Smith Co. v Greene, 179 AD2d 922; Felix Contr. Corp. v Oakridge Land & Prop. Corp., 106 AD2d 488; Tamco Corp. v Federal Ins. Co. of N.Y., 216 F Supp 767.) V The inherent ambiguity in Peerless Insurance Company’s policy is manifest. (Palmieri v Allstate Ins. Co., 445 F3d 179; State of New York v Home Indem. Co., 66 NY2d 669; White v Continental Cas. Co., 9 NY3d 264; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; PaineWebber Inc. v Bybyk, 81 F3d 1193; Reisman v Coleman, 193 AD2d 659; Woods v General Acc. Ins., 292 AD2d 802; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377; Federal Ins. Co. v International Bus. Machs. Corp., 18 NY3d 642; In re Ambassador Group, Inc. Litig., 738 F Supp 57.) VI. The Bakos v New York Cent. Mut. Fire Ins. Co.- (83 AD3d 1485 [4th Dept 2011]) decision is directly on point and supportive of Executive Plaza, LLC’s position. (Il Cambio, Inc. v U.S. Fid. & Guar. Co., 82 AD3d 650.)
   OPINION OF THE COURT

Smith, J.

This case involves a fire insurance policy that contains a clause limiting the time in which the insured may bring suit under the policy. The limitation period is two years, running from the date of the fire. The policy also says that the insured may recover the cost of replacing destroyed property—but only after the property has already been replaced. Thus, if (as happened in this case) the process of replacing the property takes more than two years, the insured’s claim will be time-barred before it comes into existence.

Answering a question from the United States Court of Appeals for the Second Circuit, we hold that such a contractual limitation period, applied to a case in which the property cannot reasonably be replaced in two years, is unreasonable and unenforceable.

I

Plaintiff owned an office building in Island Park, New York, that was severely damaged in a fire on February 23, 2007. It cost more than a million dollars to restore the building to its previous condition. Plaintiff had $1 million in insurance coverage from defendant, under a policy that gave the insured a choice between the payment of “actual cash value” and “replacement cost.” The policy said, however:

“We will not pay on a replacement cost basis for any loss or damage:
“(i) Until the lost or damaged property is actually repaired or replaced; and
“(ii) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.”

The policy also had a “Legal Action Against Us” clause, saying:

“No one may bring a legal action against us under this insurance unless: . . .
“b. The action is brought within 2 years after the date on which the direct physical loss or damage occurred.”

Defendant paid plaintiff the “actual cash value” of the destroyed building, $757,812.50. Plaintiff notified defendant that it would be making a replacement cost claim up to the $1 million policy limit—i.e., it would be seeking another $242,187.50. Defendant replied that, to collect that amount, plaintiff would have to provide “documentation verifying the completion of repairs.”

Plaintiff alleges that it acted reasonably to replace the damaged building, but was not able to do so before the second anniversary of the fire, February 23, 2009. On that date, plaintiff sued defendant in Supreme Court, seeking a declaratory judgment that defendant was liable for replacement costs up to the policy limit. Defendant removed the action to federal court, and successfully moved to dismiss it on the ground that, since plaintiff had not finished replacing the building, the action was premature (Executive Plaza, LLC v Peerless Ins. Co., 2010 US Dist LEXIS 99602 [ED NY, Feb. 8, 2010, No. CV 09-1976]).

The replacement building was completed in October 2010, and plaintiff demanded payment of the unpaid portion of the policy limits. Defendant denied liability on the ground that the two-year period had expired, and plaintiff brought another action, the present one, against defendant in Supreme Court. Defendant again removed the case to federal court and again moved to dismiss. The United States District Court for the Eastern District of New York granted the motion, finding that the policy “unambiguously bars any and all suits commenced more than two years after the date of the damage or loss” (Executive Plaza, LLC v Peerless Ins. Co., 2012 WL 910086, *6, 2012 US Dist LEXIS 36174, *16 [ED NY, Mar. 13, 2012, No. 11-CV-1716 (JS)(GRB)]). The District Court found “that the two-year limitation period in the Policy is reasonable, as New York courts have consistently upheld two-year limitations periods in insurance contracts as reasonable” (2012 WL 910086, *3, 2012 US Dist LEXIS 36174, *9-10).

Plaintiff appealed to the United States Court of Appeals for the Second Circuit, which certified the following question to us:

“If a fire insurance policy contains
“(1) a provision allowing reimbursement of replacement costs only after the property was replaced and requiring the property to be replaced ‘as soon as reasonably possible after the loss’; and
“(2) a provision requiring an insured to bring suit within two years after the loss;
“is an insured covered for replacement costs if the insured property cannot reasonably be replaced within two years?” (Executive Plaza, LLC v Peerless Ins. Co., 717 F3d 114, 118 [2d Cir 2013].)

We accepted certification (21 NY3d 975 [2013]) and now answer the question yes.

II

“[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable” (John J. Kassner & Co. v City of New York, 46 NY2d 544, 551 [1979] [emphasis added]). We conclude that the contractual period at issue here—two years from the date of “direct physical loss or damage” (i.e., from the date of the fire)—is not reasonable if, as the Second Circuit’s question requires us to assume, the property cannot reasonably be replaced within two years.

It is true, as the District Court pointed out, that there is nothing inherently unreasonable about a two-year period of limitation. In fact, we have enforced contractual limitation periods of one year (Blitman Constr. Corp. v Insurance Co. of N. Am., 66 NY2d 820 [1985]; Sapinkopf v Cunard S.S. Co., Ltd., 254 NY 111, 114 [1930]) and six months (Continental Leather Co. v Liverpool, Brazil & Riv. Plate Steam Nav. Co., 259 NY 621 [1932]; Aron & Co. v Panama R.R. Co., 255 NY 513, 519 [1931]; see also John J. Kassner, 46 NY2d at 552). The problem with the limitation period in this case is not its duration, but its accrual date. It is neither fair nor reasonable to require a suit within two years from the date of the loss, while imposing a condition precedent to the suit—in this case, completion of replacement of the property—that cannot be met within that two-year period. A “limitation period” that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim. It is true that nothing required defendant to insure plaintiff for replacement cost in excess of actual cash value, but having chosen to do so defendant may not insist on a “limitation period” that renders the coverage valueless when the repairs are time-consuming.

We have found no case in which we have squarely held that an otherwise reasonable limitation period may be rendered unreasonable by an inappropriate accrual date. We think, however, that the law was correctly stated in Judge Crane’s dissenting opinion in Continental Leather Co.: “[T]he period of time within which an action must be brought . . . should be fair and reasonable, in view of the circumstances of each particular case. . . . The circumstances, not the time, must be the determining factor” (259 NY at 622-623). While that rule was stated in a dissent, the majority, in affirming without opinion, apparently disagreed not with the principle but with its application to the case. The Appellate Division opinion that we affirmed in Continental Leather stated essentially the same rule in saying that the issue was whether the plaintiff had “a reasonable opportunity to commence its action within the period of limitation” (Continental Leather Co. v Liverpool, Brazil & Riv. Plate Steam Nav. Co., Ltd., 234 App Div 386, 387 [2d Dept 1932]).

Blitman also supports our holding here. In that case, we enforced an agreed-upon 12-month limitation period, rejecting the insured’s argument that it was “commercially unreasonable” under the circumstances (66 NY2d at 823). But in doing so, we pointed out that the policy enabled the insured to “protect itself by . . . beginning an action before expiration of the limitation period” (id.). Here, the insured did begin an action on the last day of the limitation period—and the insurer successfully argued that that action was brought too soon. It is unreasonable for it now to say, as it in substance does, that a day later would have been too late.

Accordingly, the question certified should be answered in the affirmative.

Chief Judge Lippman and Judges Graffeo, Read, Pigott, Rivera and Abdus-Salaam concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of this Court’s Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the affirmative.


author: Graffeo, J.

text:
    [6 NE3d 572, 983 NYS2d 454]
    The People of the State of New York, Respondent, v Alias Stone, Appellant.
    Argued January 6, 2014;
    decided February 13, 2014

      POINTS OF COUNSEL

      Cravath, Swaine & Moore LLP, New York City (Leah Friedman of counsel), and Richard M. Greenberg, Office of the Appellate Defender (Joseph M. Nursey of counsel), for appellant.
    I. The trial court erred in allowing Alias Stone, who exhibited evidence of mental illness, to proceed pro se without first determining whether he was mentally competent to stand trial and mentally competent to represent himself. (People v Armlin, 37 NY2d 167; People v Smyth, 3 NY2d 184; People v Tortorici, 92 NY2d 757; Johnson v Keane, 974 F Supp 225; United States v Auen, 846 F2d 872; Smith v Rock, 554 F Supp 2d 505; People v Reason, 37 NY2d 351; People v Thomas, 73 AD3d 1223; Indiana v Edwards, 554 US 164; Dusky v United States, 362 US 402.) II. In light of the Supreme Court’s decision in Indiana v Edwards (554 US 164 [2008]), where a defendant who exhibits evidence of mental illness makes a request to proceed pro se, the trial court should determine whether the defendant is mentally competent to represent himself, even if that defendant is mentally competent to stand trial. (People v Armlin, 37 NY2d 167; People v Smyth, 3 NY2d 184; People v Mendez, 1 NY3d 15; Dusky v United States, 362 US 402; Drope v Missouri, 420 US 162; McKaskle v Wiggins, 465 US 168.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Sheila O’Shea and Sylvia Wertheimer of counsel), for respondent.
    The trial court was not obligated to sua sponte order a competency examination. (Faretta v California, 422 US 806; Matter of Kathleen K. [Steven K.], 17 NY3d 380; People v McIntyre, 36 NY2d 10; People v Rosen, 81 NY2d 237; People v Ryan, 82 NY2d 497;
      People v Smith, 68 NY2d 737; People v Davis, 49 NY2d 114; People v Arroyo, 98 NY2d 101; People v Reason, 37 NY2d 351; People v Crampe, 17 NY3d 469.)
   OPINION OF THE COURT

Graffeo, J.

The primary issue presented in this case is whether defendant’s constitutional rights were violated by the trial court’s failure to sua sponte inquire into his mental capacity to represent himself prior to granting his application to proceed pro se.

Defendant was tried on two counts of burglary after he twice trespassed into secure areas of a Hilton Hotel, on one occasion stealing a cell phone. At his jury trial, defendant expressed distrust of his lawyer and asked to proceed pro se. He indicated that he believed that his attorney did not have his “best interest at heart” and wanted to sell him out. He said that he did not want to put his life in anyone else’s hands but preferred instead to represent himself and do “the best I can on my own.”

Over the course of two days, several lengthy colloquies ensued between the court, defendant and assigned counsel wherein the court repeatedly advised defendant of the perils of self-representation and attempted to persuade him to work with his assigned counsel. The case was adjourned to permit defendant to discuss the self-representation application with his attorney, who subsequently joined in defendant’s request, explaining that there had been a breakdown in communication between him and his client and that defendant was “adamant” in his desire to proceed pro se. The court made one last attempt to convince defendant to permit defense counsel to continue his representation, to which defendant responded:

“Again, your Honor, with all due respect to you, you can call it paranoia or whatever, this system, I don’t trust attorneys, lawyers, DAs. You have given me leeway, I see that you have given me more leeway than any judge that I had before, but I am scared. I don’t want this to be my final chapter.”

Noting that it was evident that defendant was an intelligent man, although lacking in legal training, the court ultimately granted his request to represent himself.

With defendant’s consent, the court directed that assigned counsel remain available to defendant throughout the proceedings as stand-by counsel. Defendant represented himself through jury selection, an opening statement and part of the cross-examination of the People’s first witness. But he then advised the court that he was “nervous,” and wanted stand-by counsel to take over the defense, ending the period of pro se representation.

Defendant was convicted of two counts of burglary but acquitted of possession of burglar’s tools. Sentencing was adjourned several times for reasons not apparent from the record. In the meantime, about two months after the trial concluded, a social worker hired by the defense to evaluate defendant for sentencing purposes sent a letter to the court identifying several mitigating circumstances in defendant’s past, indicating that defendant had “developed a guarded, distrustful stance against the world” and also suggesting defendant might be suffering from an undiagnosed mental health problem.

Nine months later, the People advised the court that defendant’s family members reported that he had developed some “psychiatric issues,” prompting the court to order a CPL 730.30 examination. When interviewed by psychiatric experts, defendant was found to be disoriented and downcast, and to be experiencing auditory hallucinations as well as “a complex delusional system about his food being poisoned in prison.” He was diagnosed with psychotic disorder, not otherwise specified, or major depressive disorder with psychotic features, and determined not fit to proceed to sentencing. The court adopted the finding of incapacity in January 2010 but, after defendant was treated with medication, his condition improved and, in April 2010, he was determined to have recovered his competency.

In May 2010, defendant appeared for sentencing with the same assigned counsel. The People detailed defendant’s 25-year-history of theft offenses, including seven prior felonies, asking the court to impose the maximum consecutive sentence of 15 years plus five years postrelease supervision. Defense counsel emphasized defendant’s abusive childhood and the fact that his thefts arose from his crack addiction and were nonviolent, arguing that a sentence of concurrent terms of five years in prison, plus five years postrelease supervision was appropriate. Despite the period of incompetency, defense counsel expressed no concern about defendant’s present mental capacity, nor was any issue raised concerning defendant’s mental competency during the trial. Defendant himself gave a lengthy personal statement in which he articulately described the depredations of his childhood and criticized the criminal justice system for its “policy of incarceration,” noting that he had spent much of his life in prison and had never received help transitioning to civilian life. The court sentenced defendant to a term of seven years in prison plus five years postrelease supervision for each count, the sentences to run concurrently.

On appeal to the Appellate Division, citing the Supreme Court’s decision in Indiana v Edwards (554 US 164 [2008]), defendant argued for the first time that his constitutional right to counsel was violated when the trial court permitted him to proceed pro se without first having him examined to determine whether he met a “heightened” competency standard necessary for self-representation. The Appellate Division unanimously rejected this argument (98 AD3d 910 [2012]). First, the court distinguished Edwards, noting that there, unlike here, a state trial court had denied a criminal defendant’s request to proceed pro se and the question was whether that denial violated his Sixth Amendment right to represent himself—an issue not presented here where defendant’s pro se application was granted. Second, the First Department further concluded that the issue of whether the trial court abused its discretion in failing to assess defendant’s mental competency prior to permitting him to proceed pro se was not presented because there was no indication during trial that defendant suffered from a mental disorder; rather, defendant’s mental status deteriorated after the trial concluded, while he was awaiting sentencing.

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

Since defendant contends that his application to proceed pro se should have been denied on mental competency grounds, this case arises at the intersection of several constitutional rights, beginning with the most basic—the Due Process requirement that a criminal defendant may not be prosecuted unless competent to stand trial under the standard articulated in Dusky v United States (362 US 402, 402 [1960] [defendant must possess “a rational as well as factual understanding of the proceedings” and have “sufficient present ability to consult with his (or her) lawyer with a reasonable degree of rational understanding”]; see Drope v Missouri, 420 US 162 [1975]). In New York, this baseline mental capacity standard has been codified at CPL 730.10 (1). The People must establish competency to stand trial by a preponderance of the evidence (People v Mendez, 1 NY3d 15, 19 [2003]). But the burden arises only when there is some basis to question defendant’s mental capacity because the People are otherwise entitled to rely on the presumption that a defendant is competent to proceed (People v Gelikkaya, 84 NY2d 456 [1994]).

Also implicated is the Sixth Amendment right of a criminal defendant to self-representation at trial, recognized in Faretta v California (422 US 806 [1975]), and the corresponding—and sometimes competing—requirement that the state provide defendant competent counsel to conduct his or her defense. It is well-settled that an application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel (id. at 835; People v McIntyre, 36 NY2d 10, 17 [1974]). To this end, trial courts must conduct a “searching inquiry” to clarify that defendant understands the ramifications of such a decision (see People v Providence, 2 NY3d 579 [2004]).

Defendant argues that Indiana v Edwards (554 US 164) imposed a new constitutional mandate on the states in relation to resolution of Faretta requests. In Edwards, the Supreme Court held that the United States Constitution permits a state to deny a defendant’s request to proceed pro se in cases where defendant suffers from a severe mental illness and, though sufficiently competent to stand trial, “lacks the mental capacity to conduct his trial defense unless represented” (id. at 174). The defendant in Edwards was caught stealing a pair of shoes from an Indiana department store and the confrontation resulted in a gunfight with store security officers in which defendant wounded a bystander. From the outset of the criminal prosecution, defendant’s competency to stand trial was at issue. He was a diagnosed schizophrenic with delusional thinking and the trial court conducted three competency proceedings before finding him fit to proceed. On the eve of trial, defendant asked to represent himself but the court denied the request as untimely. When the jury deadlocked on some of the charges, necessitating a retrial, defendant renewed his request to proceed pro se. Referring to the lengthy record of psychiatric reports arising from the prior competency hearings, the trial court noted that defendant still suffered from schizophrenia and denied the application, finding that defendant was competent to stand trial but not sufficiently competent to represent himself.

On appeal, defendant contended that the trial court’s denial of his request to proceed pro se violated his Sixth Amendment right to represent himself under Faretta, an argument that was reluctantly credited by the Indiana Supreme Court. But the United States Supreme Court disagreed, holding that it is constitutionally permissible for a state to impose a “mental-illness-related limitation on the scope of the self-representation right” (Edwards, 554 US at 171). The Court explained:

“Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways ... In certain instances an individual may well be able to satisfy Dusky’s mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel” (id. at 175-176 [citations omitted]).

Thus, the Court concluded that a state may—without offending the Constitution—deny a minimally-competent defendant’s request to proceed pro se based on a determination that, due to severe mental illness, he or she does not possess the competency for self-representation at trial.

Defendant submits that Edwards requires states to adopt a two-tiered competency standard—a baseline for competency to stand trial and a separate, heightened standard for competency to proceed pro se at trial—and compels a competency hearing before a defendant may be permitted to proceed pro se. But we do not view Edwards as imposing such a requirement—and our interpretation is in accord with the federal appellate courts that have addressed the issue (see e.g. United States v Bernard, 708 F3d 583 [4th Cir 2013], cert denied — US —, 134 S Ct 617 [2013]; United States v Turner, 644 F3d 713 [8th Cir 2011]; United States v Berry, 565 F3d 385 [7th Cir 2009]). Although a court has discretion to require representation by counsel in certain circumstances despite a request to proceed pro se, it does not follow that the Constitution is offended if that discretion is not exercised.

Nor did Edwards effectuate a substantial change in the law, at least not in New York. Prior to Edwards, the Supreme Court had never held that a state was precluded from assessing a defendant’s mental capacity when adjudicating a Faretta request. And we have long recognized that a mentally-ill defendant, though competent to stand trial, may not have the capacity to appreciate the demands attendant to self-representation, resulting in an inability to knowingly, voluntarily and intelligently waive the right to counsel and proceed pro se (People v Reason, 37 NY2d 351 [1975]). When there is a basis to question defendant’s mental capacity, we indicated that the trial court should consider that question as part of the “searching inquiry” designed to determine the efficacy of defendant’s waiver of counsel. To be sure, we did not characterize this as a distinct “competency inquiry,” declining to define “separate and distinct levels of mental capacity” (id. at 353). But we went on to explain:

“By such rejection, however, we do not intend to suggest that mental capability of the defendant at the time of waiver is irrelevant. Quite the contrary. As in other instances of waiver, the determination that it was intelligent and voluntary, and thus legally effective, may well turn, even in major part, on the mental capability of the defendant at the time in the circumstances” (id. at 354).

Hence, under New York law a defendant’s mental capacity may be taken into account in the Faretta context, although the trial court need not conduct a formal “competency” hearing prior to adjudicating a self-representation request.

Viewed as a whole, our analysis in Reason is compatible with Edwards where the Supreme Court held that it was permissible for the trial court to deny the severely-mentally-ill defendant’s request to proceed pro se, even though no distinct “self-representation competency” inquiry had been conducted. Consistent with Edwards, New York courts can, in appropriate circumstances, deny a self-representation request if a severely-mentally-ill defendant who is competent to stand trial otherwise lacks the mental capacity to waive counsel and proceed pro se.

The inquiry then becomes whether the trial court in this case abused its discretion in declining to exercise that prerogative. Defendant maintains that it did, contending that defendant exhibited signs of severe mental illness during the trial which should have alerted the court to sua sponte assess his capacity for self-representation. But the Appellate Division disagreed and that determination is supported by the record.

Indeed, the situation presented in this case is significantly different from either Edwards or Reason. In each of those cases, the trial court was aware at the time of the Faretta request that defendant suffered from a serious mental illness since issues had been raised concerning defendant’s competency to stand trial, spawning multiple competency proceedings. In contrast, here, when defendant expressed a desire to represent himself, the trial court had no reason to question his mental health, much less a basis to believe that defendant suffered from an illness severe enough to impact his ability to waive counsel and proceed pro se. It is true that a competency issue arose while defendant was awaiting sentencing—but nothing in his extensive interaction with the trial court suggested defendant’s mental capacity was compromised during the trial. And as we have already held, the fact that a defendant later develops competency issues is not, without more, a basis to question his mental capacity at a prior time during the criminal proceeding (see Gelikkaya, 84 NY2d at 460).

As an indication that he was suffering from delusions or other indicia of mental impairment, defendant points to the “paranoia” he expressed during the Faretta inquiry, noting that he repeatedly expressed his distrust of his attorney and that he believed conviction was inevitable. However, these statements cannot fairly be described as “red flags” that should have put the court on notice of a severe mental illness since defendants who wish to proceed pro se often express similar views. As we explained in People v McIntyre, “[frequently, the pro se defendant is motivated by dissatisfaction with the trial strategy of defense counsel or a lack of confidence in his attorney” (36 NY2d at 16 [citations omitted])—concerns not unlike those articulated here. Given that the 45-year-old defendant had numerous prior convictions, the trial court undoubtedly interpreted his negative opinion of his attorney and the criminal justice system as a regrettable by-product of his personal experience as opposed to a signal that he suffered from a mental illness. It appears that defense counsel also viewed the comments in this light since, far from raising an issue concerning defendant’s capacity for self-representation, counsel supported defendant’s request to proceed pro se.

We are also unpersuaded that the fact that defendant at times engaged in obstreperous conduct or emotional outbursts during the trial should have alerted the court to a competency problem since disruptive behavior of this nature by a criminal defendant is commonplace and not necessarily indicative of mental impairment (see e.g. People v Johnson, 204 AD2d 188 [1st Dept 1994], lv denied 83 NY2d 968 [1994]; People v Rosebrough, 199 AD2d 1024 [4th Dept 1993], lv denied 83 NY2d 857 [1994]). Nor can such a condition be inferred from various missteps defendant purportedly made during the brief period of self-representation. To the extent defendant’s representation may have been inartful—and, in many respects, it was as capable as could be expected from a pro se defendant—there is no basis to interpret it as evidence of a serious mental illness rather than the lack of skill typical of a layperson untrained in trial tactics or procedure.

On this record, it cannot be said that the trial court abused its discretion in failing to undertake a particularized assessment of defendant’s mental capacity when resolving defendant’s request to proceed pro se. And since no claim is (or could be) made here that the court’s “searching inquiry” was otherwise deficient, there is no basis to disturb the conviction on Faretta grounds. Defendant’s related argument that the trial court should have ordered a CPL 730.30 examination to assess whether defendant possessed the baseline mental competency to stand trial has likewise been considered and determined to be without merit.

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

Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order affirmed.

       At the time the pro se request was granted, voir dire was underway and four jurors had been selected. When defendant took over the defense, the trial court granted his motion for a mistrial, dismissed the sworn jurors and permitted him to commence voir dire anew.