author: Graffeo, J. Smith, J.

text:
    [950 NE2d 480, 926 NYS2d 847]
    The People of the State of New York, Respondent, v Owen Steward, Appellant.
    Argued May 2, 2011;
    decided June 7, 2011

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Jalina J. Hudson, Richard M. Greenberg and Eunice C. Lee of counsel), for appellant.
    I. Owen Steward was denied his right to a fair and impartial jury and to meaningful participation in jury selection where the trial court arbitrarily and systematically imposed a five-minute limit on voir dire, thereby prohibiting defense counsel from conducting an adequate inquiry of prospective jurors. (People v Branch, 46 NY2d 645; People v Rampersant, 182 AD2d 373; People v Hoffler, 53 AD3d 116; United States v Quinones, 511 F3d 289; People v Jean, 75 NY2d 744; People v Wright, 13 AD3d 726; People v Davis, 166 AD2d 453; People v Erickson, 156 AD2d 760; People v Habte, 35 AD3d 1199.) II. The fact-finding province of the jury was usurped where the trial court permitted witnesses to identify Owen Steward on a videotape that had been admitted into evidence, thereby denying Mr. Steward his right to a fair trial. (People v Narrod, 23 AD3d 1061; Corelli v City of New York, 88 AD2d 810; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; People v Harte, 29 AD3d 475.) III. The trial court abused its discretion and denied Owen Steward due process by ruling that, if Mr. Steward chose to testify at trial, he could be impeached by a 13-year-old conviction that was remote and lacked probative value. (People v Sandoval, 34 NY2d 371; People v Ellis, 94 AD2d 652; People v Cooke, 101 AD2d 983; People v Pippin, 67 AD2d 413; People v Schwartzman, 24 NY2d 241; People v Williams, 56 NY2d 236; People v Dickman, 42 NY2d 294; People v Grant, 7 NY3d 421.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Timothy C. Stone and Dana Poole of counsel), for respondent.
    I. Contrary to defendant’s largely unpreserved argument, the trial judge properly exercised her broad discretion by setting reasonable time limits on the parties’ voir dire. (People v Boulware, 29 NY2d 135; People v Rampersant, 182 AD2d 373; People v Jean, 75 NY2d 744; People v Nieves, 2 NY3d 310; People v Hines, 97 NY2d 56; People v Corbett, 68 AD2d 772, 52 NY2d 714; People v Jelke, 284 App Div 211, 308 NY 56; People v Smith, 290 AD2d 367, 97 NY2d 762; People v Rodriguez, 184 AD2d 317, 80 NY2d 909; People v Hecker, 15 NY3d 625.) II. The trial judge appropriately exercised her discretion by allowing testimony about the nightclub surveillance video. (People v Russell, 79 NY2d 1024; People v Grant, 7 NY3d 421; People v Romero, 78 NY2d 355; People v Medina, 53 NY2d 951; People v Rivera, 259 AD2d 316; United States v Robinson, 804 F2d 280; People v Harte, 29 AD3d 475; Corelli v City of New York, 88 AD2d 810; People v Sampson, 289 AD2d 1022, 97 NY2d 733; People v Morgan, 214 AD2d 809, 86 NY2d 783.) III. The court’s Sandoval ruling was a proper exercise of discretion. (People v Sandoval, 34 NY2d 371; People v Hayes, 97 NY2d 203; People v Grant, 7 NY3d 421; People v Romero, 78 NY2d 355; People v Greer, 42 NY2d 170; People v Williams, 56 NY2d 236; People v Mayrant, 43 NY2d 236; People v Walker, 83 NY2d 455; People v Rivera, 227 AD2d 205, 88 NY2d 993; People v Rodriguez, 284 AD2d 243, 97 NY2d 643.) IV. The lower court properly provided the deliberating jurors, at trial defense counsel’s request, with written copies of its instructions on the elements of the charged crimes. (People v Lewis, 5 NY3d 546; People v Aezah, 191 AD2d 312, 81 NY2d 1010; People v Owens, 69 NY2d 585; People v Douglas, 156 AD2d 173.)
   OPINION OF THE COURT

Graffeo, J.

The issue before us in this appeal is whether the trial court abused its discretion in imposing a five-minute limitation on counsel for the questioning of jurors during each round of voir dire in this multiple felony case. Based on the seriousness and number of charges, the identity of the victim and certain characteristics of prospective jurors that were revealed during examination by the court, we conclude that the trial court erred in adhering to the unusually short time restriction after defense counsel objected. Defendant is therefore entitled to a new trial.

This prosecution arose from a robbery that allegedly occurred outside a Manhattan nightclub in the early morning hours of July 23, 2006. The alleged victim of the crime was Raashaun Casey, a prominent radio personality in New York City known as “DJ Envy” who hosted a show on “HOT 97,” a popular radio station. According to the witnesses presented by the People at trial, defendant and an unidentified accomplice accosted Casey and his friend Derrick Parris at gunpoint as the two men were leaving the nightclub, demanding that Casey hand over his $25,000 gold and diamond necklace.

After obtaining the necklace, defendant and the accomplice fled the scene in a vehicle driven by defendant. Casey and Paris followed them in Casey’s car, resulting in a high speed car chase through lower Manhattan. The defendant’s vehicle crashed and the pursuit continued on foot, with the victim and Parris ultimately apprehending and detaining defendant but not the accomplice (whose identity remains unknown). Defendant offered proof suggesting that he had been beaten by Casey and Parris before the police arrived, which resulted in his hospitalization for several days after his arrest. Defendant was subsequently charged with multiple counts of first- and second-degree robbery as well as various weapon possession offenses.

Prior to the commencement of jury selection, the trial judge informed the parties that the attorneys would be given only five minutes to question each panel of prospective jurors. The judge began voir dire by instructing and examining the venire members on a variety of topics and then permitted counsel to question the panel. At the conclusion of the first round of voir dire, defense counsel objected to the time limit, contending that five minutes was an insufficient period of time for counsel to conduct an adequate inquiry of venire persons in light of the complexity of the prosecution, which involved multiple class B felony charges. Defense counsel suggested that the trial judge’s usual five minute “rule” that she had employed in misdemeanor cases — where only six jurors were being selected and the parties had only three peremptory challenges — should not apply in this instance where the charges against defendant were serious, 12 jurors were being selected and the parties would be exercising 15 peremptory challenges. He also cited examples of several topics that he hoped to discuss with the prospective jurors but had not had time to address as he was able to speak to only two of the 16 prospective jurors during the allotted time. Without addressing defendant’s objection, the court continued to enforce the time limit in the two subsequent rounds of voir dire.

The impact of this decision was evident throughout the remainder of voir dire, particularly in the third round. In response to questioning by the court, 12 prospective jurors indicated that they, or people close to them, had been victims of robbery or theft. Several others stated that they had either witnessed or been the victims of violent crimes. Some of these individuals told the judge that they did not “think” their past experiences would affect their ability to deliberate in this case while at least one indicated it might (the court did not follow-up with this juror). After this series of questions, the court sua sponte excused a number of jurors but the record does not indicate whether the individuals that had been crime victims were discharged (defendant suggests that none were). Given the unusual role the victim allegedly played in facilitating defendant’s capture and arrest and the considerable number of venire members that had been victims of crime, there were undoubtedly topics that would have been appropriate for follow-up questioning by counsel.

During this same round, two prospective jurors indicated that they had ties to law enforcement and several others identified themselves as lawyers or law students. Two members of the panel stated they had previously served on a jury; one had deliberated to verdict and the other case ended in a hung jury. In addition, three jurors responded that they were familiar with “DJ Envy,” with one acknowledging that he listened to the victim’s radio show.

Yet, as a result of the time restriction on questioning by counsel, defense counsel had only five minutes to explore the issues that had arisen during questioning by the court. Defense counsel used his time segment to ask follow-up questions of the prospective juror that had previously sat on a deadlocked jury. He also inquired of the panel whether jurors would hold it against his client if he did not give an opening statement and whether they would draw a negative inference from his client’s decision not to testify on his own behalf. At this point, the court interrupted counsel to warn him that only one minute remained for questioning. Time expired before defense counsel had an opportunity to examine any of the prospective jurors who stated that they had heard of the victim or indicated that they had been witnesses or victims of crime.

After the jury was selected and sworn, the trial proceeded and defendant was convicted of two counts of robbery in the first degree and one count of robbery in the second degree. On appeal, defendant contended that he should be granted a new trial because counsel was not provided with an adequate opportunity to examine prospective jurors during voir dire and the defense was prejudiced as a result. The Appellate Division rejected this argument and affirmed the conviction (72 AD3d 524 [2010]). A Judge of this Court granted defendant leave to appeal (15 NY3d 810 [2010]) and we now reverse.

In criminal cases, jury selection is governed by CPL 270.15, which directs that prospective jurors will initially be questioned by the trial court (CPL 270.15 [1] [b]). The statute also provides:

“The court shall permit both parties ... to examine the prospective jurors, individually or collectively, regarding their qualifications to serve as jurors. Each party shall be afforded a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications, but the court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror’s knowledge of rules of law” (CPL 270.15 [1] [c]).

CPL 270.15 does not contain guidelines relating to the duration of voir dire but states that the scope of counsel’s examination of prospective jurors “shall be within the discretion of the court” (id.). This Court has emphasized the broad discretion afforded trial courts in this arena (see People v Jean, 75 NY2d 744 [1989]; People v Pepper, 59 NY2d 353 [1983]; People v Boulware, 29 NY2d 135 [1971], cert denied 405 US 995 [1972]), while cautioning that any restrictions imposed on voir dire “must nevertheless afford . . . counsel a fair opportunity to question prospective jurors about relevant matters” (Jean, 75 NY2d at 745).

As we have previously recognized, this area of law is not amenable to “the formulation of precise standards or to the fashioning of rigid guidelines” that can be applied across-the-board in all cases (Boulware, 29 NY2d at 139). Thus, the Legislature has left to the trial court the supervision of the process of counsel questioning during jury selection. Should a court choose at the outset to allocate a fixed period of time for such questioning, the allotment should be appropriate to the circumstances of the case.

It would be impossible to compile an exhaustive list of all the factors that might inform a trial court’s determination of this issue. But, in most cases, relevant considerations would include: the number of jurors and alternate jurors to be selected and the number of peremptory challenges available to the parties; the number, nature and seriousness of the pending charges; any notoriety the case may have received in the media or local community; special considerations arising from the legal issues raised in the case, including anticipated defenses such as justification or a plea of not responsible by reason of mental disease or defect; any unique concerns emanating from the identity or characteristics of the defendant, the victim, the witnesses or counsel; and the extent to which the court will examine prospective jurors on relevant topics. Because voir dire is a fluid process and it is not always possible to anticipate the issues that may arise during examination of the venire, it is also incumbent on counsel to advise the court if any temporal limitation imposed relating to juror questioning is proving, in practice, to be unduly restrictive and prejudicial.

In this case, the trial judge was particularly conscientious in her extensive examination of the venire and her sua sponte discharge of prospective jurors who offered troubling responses — a commendable approach that is certainly to be encouraged. But the controversy centers around the court’s imposition of a five minute restriction on counsel questioning for each round of voir dire. As defendant points out, five minutes per round is significantly shorter than the time restrictions that have previously been upheld in this Court and the Appellate Divisions (see Jean, 75 NY2d 744 [trial court did not abuse its discretion in limiting counsel questioning to 15 minutes in first two rounds and 10 minutes in third round of voir dire]; see e.g. People v Davis, 166 AD2d 453 [2d Dept 1990], lv denied 76 NY2d 985 [1990] [15 minute restriction in first round followed by 10 minutes in second and third rounds not an abuse of discretion]; People v Erickson, 156 AD2d 760 [3d Dept 1989], lv denied 75 NY2d 966 [1990] [10 minute restriction in each round was not an abuse of discretion]). While we agree with the People that this fact is not determinative because the propriety of a limitation on counsel questioning must be assessed based on all the circumstances presented in a particular case, the fact that the time restriction appears to be substantially shorter than the norm in this multiple felony prosecution is an important consideration in our review of defendant’s claim.

It is also significant that defendant was facing four serious class B violent felony charges — offenses punishable by up to 25 years in prison — as well as five other felony offenses. And jury selection was complicated by the fact that the victim was a local radio celebrity. During questioning of the venire, it became apparent that the victim was known to many prospective jurors, with one panel member cryptically indicating that the radio station that carried his program had a “reputation” in the community. In addition, the facts were somewhat unusual as the case involved allegations that the victims of the crime had turned the tables on the assailants after the robbery, pursuing them in a car chase and eventually capturing defendant (allegedly through the application of significant force). The case therefore raised potentially sensitive issues concerning the use of self-help by crime victims — a consideration that increased in significance once it became apparent that many of the prospective jurors had themselves been victims of crime.

In light of these circumstances, it would not have been surprising if the trial court had allotted a longer-than-average period of time for the attorneys to conduct their questioning. Instead, the attorneys were significantly limited in their efforts to follow-up on provocative answers given by prospective jurors in response to the court’s inquiries. Although defense counsel specifically alerted the court during the first round of voir dire that the time limit was unduly restrictive and that he had been able to examine only two jurors during the allotted five minutes, the judge neither revisited the issue nor explained why she had concluded that five minutes was sufficient.

Defendant argues that the trial judge did not offer an explanation because she applied a similar rule for jury selection in all cases, regardless of the number of jurors being selected, the number or seriousness of the charges or the complexity of the issues. Although such a “one size fits all” approach does not seem to have been what the Legislature had in mind when it granted trial courts broad discretion in CPL 270.15 (1) (c), the fact that the trial court may or may not have imposed the same limitation in other cases is not relevant to the resolution of this appeal. And, from a practical standpoint, some uniformity in jury selection procedures involving comparable prosecutions is to be expected. Judges may well begin voir dire with the assumption that a time limitation that has proven appropriate in other similar trials will be adequate again (although the court should be willing to reconsider the propriety of that restriction if a party raises a legitimate concern once jury selection is underway).

But, as noted above, this was hardly a typical case. And, after counsel brought the issue to the court’s attention, the difficulties posed by the time restriction became more apparent when a significant number of venire members revealed that they, or someone close to them, had been a crime victim and several others indicated their familiarity with the victim. Considering the factors that we have discussed, we conclude that the trial court abused its discretion in continuing to enforce the five-minute limitation on counsel questioning after counsel’s timely objection explaining why the time period was insufficient.

This error, standing alone, does not warrant reversal. A trial court’s abuse of discretion in limiting the scope of counsel questioning will not warrant reversal unless defendant establishes that he suffered prejudice (see Jean, 75 NY2d at 745). In this case, however, the prejudice inquiry is hampered by the manner in which the jury selection process was transcribed by the court stenographer. The prospective jurors that answered questions are not identified in the record by name, initials or panel number. Rather, all members of the venire are referred to as “prospective juror” in the transcript making it difficult to differentiate between them. And there were occasions when groups of prospective jurors were excused sua sponte by the court but the record fails to identify which individuals were retained and which were dismissed. Through no fault of the court or defense counsel, it is therefore difficult to definitively resolve certain issues relevant to the prejudice inquiry.

Defendant contends that he suffered prejudice because critical issues were revealed during jury selection involving a large number of prospective jurors and, as a result of the five-minute time restriction, his attorney was unable to query the various venire members that had responded to the court’s inquiries in a problematic or provocative manner. And he suggests that some of these individuals did, in fact, serve on the jury that convicted him.

Given the lack of clarity in the record concerning whether certain prospective jurors were discharged or retained, we cannot say that defendant’s claim of prejudice is refuted by the record. This is not a case where defendant has done nothing other than identify one or two venire persons who made questionable remarks but were not examined by counsel due to a time constraint. In the third round of voir dire alone, more than a dozen prospective jurors seem to have said something that invited additional inquiry in connection with their knowledge of the victim or status as a crime victim or witness — topics especially pertinent to this case. While none of these jurors made statements that, without further elaboration, would have justified their dismissal for cause, the purpose of follow-up questioning by the court or counsel is to explore hidden biases. During jury selection, attorneys pay close attention to juror responses in order to identify who should be challenged “for cause” and decide whether to exercise peremptory challenges. This process may be thwarted if an insufficient amount of time is permitted for questioning. And, here, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies.

Although we conclude that reversal is warranted in this case, we agree with the People that it is certainly possible that the statements made by these venire members were not indicative of any inappropriate bias (this, too, might have been established had counsel been provided a greater opportunity to pursue follow-up questioning). And we also recognize that efficiency is an important consideration and that judges are in the difficult position of having to properly marshal limited court resources while at the same time respecting the rights of jurors and ensuring that the parties receive a fair trial. Sometimes this can be a difficult balance to strike. But the fact remains that trial judges are not always able to cover all avenues of questioning that interest the parties during voir dire — that is why the Legislature has directed that counsel must be provided a “fair opportunity” to examine prospective jurors after the court has concluded its questioning (see CPL 270.15 [1] [c]). Since the record here establishes that the unusually short time restriction imposed by the court prevented counsel from having a sufficient opportunity to examine the various prospective jurors whose statements could reasonably be expected to elicit further questioning, and defendant’s claim of prejudice cannot be discounted, we conclude that the conviction must be reversed and the case remitted for a new trial.

In light of our resolution of the voir dire issue, it is unnecessary for us to consider defendant’s other claims of error.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Smith, J.

(dissenting). This case seems to me to raise a single issue: Is five minutes of lawyer-conducted voir dire per side too little time, as a matter of law, for the first round of jury selection in a felony case? I would answer that question no. The majority does not address it, but answers another question, one I do not think is preserved in this record.

After conducting her own voir dire of the first-round panelists, the trial judge gave each counsel five minutes to question them. After they had done so, defense counsel asked “to put on the record my objection to the time limit.” He made clear that the objection was one he had made to the same judge before, in other cases: “I tried cases before you in supreme court and criminal court. My objection isn’t something new to you, but I need to make it nevertheless.” Counsel then spoke about the importance of peremptory challenges and the need for a “fair opportunity to question jurors.” He said that he had found “no case where only five minutes was allowed in the first round of voir dire, particularly a Class B violent felony or any other felony.” He relied on a mathematical calculation: “Sixteen jurors in the box and five minutes to speak with them averages to less than 20 seconds per [prospective] juror.”

Counsel made no criticism of the judge’s voir dire, and acknowledged it was “thorough,” but stressed that his job as an advocate was different from the judge’s. He summarized by saying: “[M]y objection is that your time limit here in this case violates the defendant’s statutory right to exercise preliminary challenges and violates his rights under the state and federal constitution.” At the end of his argument, counsel briefly mentioned the circumstances of the present case, saying that he “used up four out of my five minutes” in questions of individual jurors and was forced to omit some subjects he would have covered with the group.

It is clear to me that counsel was making a generic objection to the five minute time limit, though he illustrated his argument by referring to the case at hand. He was saying that, at least in the first round of a felony case, where 12 jurors may be selected and that number of panelists or more — 16 in this case— are being interviewed, five minutes is just not enough time for a lawyer to talk to them. The argument is not an unreasonable one, but I would reject the per se rule that defendant asked for.

CPL 270.15 (1) (c) says, in relevant part:

“The court shall permit both parties ... to examine the prospective jurors, individually or collectively, regarding their qualifications to serve as jurors. Each party shall be afforded a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications, but the court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror’s knowledge of rules of law.”

The question here is whether, by limiting defendant to five minutes in the first round, the trial court denied him “a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications.” What amounts to “a fair opportunity” is to be decided by the trial court in its discretion (People v Jean, 75 NY2d 744 [1989]). In Jean, we held that a trial court did not abuse its discretion by limiting counsel to 15 minutes in each of the first two rounds, and 10 minutes in the third.

So long as the trial court allows some appreciable time for lawyer questioning — and five minutes is appreciably more than zero — I would not hold as a matter of law that any minimum number of minutes is necessary. A lawyer who thinks more time is needed to “question the prospective jurors as to any unexplored matter” should tell the court what the “unexplored matter” is; in this case, defense counsel identified no subject not covered in the trial court’s own “thorough” questioning. If he had done so, the judge might well have given him more than five minutes.

In exercising its discretion to keep lawyers on a very short leash during voir dire, the trial court implicitly recognized two important facts of courtroom life: Time is precious, and lawyers questioning prospective jurors waste a lot of it. Lawyer-conducted voir dire no doubt has its value, but it is a very inefficient process, as lawyers understandably try to get to know as well as they possibly can each human being who might serve on the jury. The Legislature’s purpose in enacting CPL 270.15 (1) (c) was to avoid such waste of time by “instructing the court to maintain tight control over voir dire questioning” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 270.15, at 276 [2002 ed])—a practice we had previously encouraged (People v Boulware, 29 NY2d 135, 140 [1971]). I believe we would best serve the legislative goal by not requiring any arbitrary minimum for lawyer-conducted voir dire.

Today’s majority does not suggest that it disagrees. Indeed, it disapproves of rules “that can be applied across-the-board in all cases” in this area (majority op at 110). Yet it reverses defendant’s conviction on a ground that defendant never presented to the trial court: that the special circumstances of this case rendered the five minute limit too strict — especially in the third round of jury selection, where an unusual number of people who had been, or whose relatives had been, crime victims appeared as prospective jurors.

The majority may be right about this, but I do not see why defendant should be excused from preserving the argument. He could have said to the trial judge, essentially, everything the majority now says, but he said none of it. He never suggested that he needed more time in the third round to ask about the crimes of which panelists or their family members had been victims; indeed, he made no objection to the time limit during the third round of jury selection. He did not say, at any stage of the voir dire, that the victim’s modest fame, or any other fact unique to this case, made lengthier questioning appropriate. If he had said that, perhaps the trial judge would have agreed with him. But he preserved only a generic objection to the time limit. Since I think that objection should fail, I would affirm.

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

Order reversed, etc.

      . This was a recurring theme during jury selection. Before prospective jurors were placed in panels, the trial court generally asked the entire venire whether they had heard of or knew the victim either by the name Raashaun Casey or “DJ Envy.” Many individuals raised their hands. The court then instructed that anyone who thought his or her knowledge of the victim would impede fair consideration of the evidence was free to leave. An unidentified number of individuals left — but it appears that many prospective jurors that were familiar with the victim remained, including the three venire members questioned during the third round.

      . While the trial court certainly had no obligation to articulate the basis for her decision on the record, such an explanation would have facilitated appellate review. Without it, we must search the record ourselves to discern whether there was a sufficient basis for the court’s conclusion that the time restriction provided counsel the requisite “fair opportunity” to examine prospective jurors.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [950 NE2d 500, 926 NYS2d 867]
    Eric Cragg, as Administrator of the Estate of Kayla Margaret Rose Cragg, Deceased, Appellant, v Allstate Indemnity Corporation, Respondent, et al., Defendants.
    Argued May 4, 2011;
    decided June 9, 2011

      POINTS OF COUNSEL

      Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of counsel), and Law Office of John J. Fromen (John J. Fromen, Jr., of counsel) for appellant.
    I. The language of Allstate Indemnity Corporation’s policy provides coverage for plaintiffs wrongful death claim. (Heslin v County of Greene, 14 NY3d 67; Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; George v Mt. Sinai Hosp., 47 NY2d 170; Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390; Matter of Martin, 32 Misc 2d 555; Matter of Terry v General Elec. Co., 232 NY 120; Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Cone v Nationwide Mut. Fire Ins. Co., 75 NY2d 747.) II. The interpretation adopted by the Appellate Division renders terms of the exclusion meaningless, and the history of the exclusion sheds light on how it should be interpreted. (County of Columbia v Continental Ins. Co., 83 NY2d 618; Roundabout Theatre Co. v Continental Cas. Co., 302 AD2d 1; Continental Cas. Co. v Rapid-American Corp., 177 AD2d 61, 80 NY2d 640; New England Mut. Life Ins. Co. v Doe, 93 NY2d 122; Allstate Ins. Co. v Pestar, 168 AD2d 931.) III. The Appellate Division misstated the law and misconstrued plaintiffs argument, and the purpose of homeowners’ insurance is achieved, not defeated, by finding coverage. (Doyle v Pawtucket Mut. Ins. Co., 243 AD2d 603; Allstate

      Ins. Co. v Pestar, 168 AD2d 931.) IV. Cincinnati Indem. Co. v Martin (85 Ohio St 3d 604, 710 NE2d 677 [1999]) — cited by the Appellate Division — involved a different exclusion, and the other cases cited by the courts below are inapposite. V. The argument which Allstate Indemnity Corporation recently made in a Wisconsin court is contrary to the argument it made here, and the rationale of the Wisconsin ruling supports plaintiff in this case as he is the only person who will be paid in the wrongful death action. (Bingham v New York City Tr. Auth., 99 NY2d 355.)

      Goldberg Segalla LLP, Buffalo (Patrick B. Omilian and Sharon Angelino of counsel), for respondent.
    I. The great weight of authority supports a finding of no coverage for the wrongful death of Kayla Margaret Rose Cragg. (Allstate Ins. Co. v DiGiorgi, 9 F Supp 2d 657; Tokley v State Farm Ins. Cos., 782 F Supp 1375.) II. The policy unambiguously excludes coverage for wrongful death damages resulting from bodily injury to an insured. (Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Butler v New York Cent. Mut. Fire Ins. Co., 274 AD2d 924; Breed v Insurance Co. of N. Am., 46 NY2d 351; Matter of Progressive Ins. Cos. [Nemitz], 39 AD3d 1121; Maurice Goldman & Sons v Hanover Ins. Co., 80 NY2d 986; R & D Maidman Family L.P. v Scottsdale Ins. Co., 4 Misc 3d 728; Hartford Fire Ins. Co. v Orient Overseas Containers Lines [UK] Ltd., 230 F3d 549; Fitzpatrick v American Honda Motor Co., 78 NY2d 61; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Tobias v Liberty Mut. Fire Ins. Co., 78 AD3d 928.)
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal requires us to interpret the breadth of an exclusion in a homeowner’s insurance policy excluding coverage for bodily injury to an insured where an insured would receive “any benefit” under the policy.

Plaintiff, Eric Cragg, is the father of decedent, Kayla Margaret Rose Cragg. Three-year-old Kayla and her mother, defendant Marina Ward, lived with defendant grandparents, Gregory and Katherine Klein, in the Kleins’ Clarence, New York home. In July 2001, Kayla drowned accidentally in the Kleins’ swimming pool. At the time, the Kleins had a homeowner’s insurance policy in place that had been issued by Allstate. Under the terms of the policy, Kayla and her mother were insured persons, as residents of the household who were related to the policyholders. Plaintiff maintained a separate residence and was not an insured under the Kleins’ homeowner’s insurance policy.

Allstate disclaimed coverage based on the policy exclusion at issue here. Under “Coverage X[ — ]Family Liability Protection,” the policy states that “[w]e do not cover bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person.” Bodily injury is defined in the policy as “physical harm to the body, including sickness or disease, and resulting death.” The policy does not define the term “benefit.”

Plaintiff, as the administrator of Kayla’s estate, commenced an action seeking to recover against defendants for Kayla’s wrongful death and for her conscious pain and suffering. Defendant Ward defaulted and judgment was entered against her in the amount of $300,000 — $150,000 for wrongful death and $150,000 for pain and suffering. Plaintiff brought this declaratory judgment action against Allstate for a declaration that Allstate was required to defend and indemnify its insureds. Supreme Court granted Allstate’s motion for summary judgment, declaring that Allstate had no obligation to defend or indemnify Ward or the Kleins in relation to the wrongful death or conscious pain and suffering claims.

The Appellate Division affirmed (74 AD3d 90 [4th Dept 2010]). That Court noted that the general purpose of homeowner’s insurance policies is to provide coverage for injuries sustained by those who are not insured by the subject policy and found that, based on the plain language of the exclusion, Allstate did not have to indemnify Ward because she would thereby obtain a benefit under the policy. We granted plaintiff leave to appeal (15 NY3d 705 [2010]) and we now reverse.

At this stage of the litigation, plaintiff properly limits his argument to the wrongful death claims of the underlying action. As we recently noted, a claim for conscious pain and suffering belongs to the estate of the deceased, rather than the distributees (see Heslin v County of Greene, 14 NY3d 67, 76-77 [2010]; EPTL 11-3.2 [b]). By contrast, “a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act” (Heslin, 14 NY3d at 76; see also EPTL 5-4.3). Plaintiffs wrongful death claim therefore is based on his own loss and is not derivative of any claim on behalf of his insured daughter.

Insurance contracts must be interpreted according to common speech and consistent with the reasonable expectations of the average insured (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326-327 [1996]). To the extent that there is any ambiguity in an exclusionary clause, we construe the provision in favor of the insured. Moreover,

“ ‘exclusions or exceptions from policy coverage . . . are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction. Indeed, before an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation’ ” (Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302, 307 [2009], quoting Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]).

Allstate has not met that burden here.

The language of the policy exclusion — excluding coverage “whenever any benefit of this coverage would accrue directly or indirectly to an insured” — is ambiguous. It could be interpreted, as Allstate urges, to mean that bodily injury to an insured is not covered whenever any benefit — including coverage itself in the form of defense and indemnification — would accrue to an insured. However, as plaintiff points out, this interpretation ascribes meaning only to the first clause of the exclusion — “[w]e do not cover bodily injury to an insured person.” Since the right to defense and indemnification universally accrues to an insured, under Allstate’s interpretation the condition of the second clause of the exclusion would always be met. However, the second part of the exclusion must somehow modify the first part of the clause in order to have any meaning. In this context, a benefit must mean something other than coverage itself and is more naturally read to mean proceeds paid under the policy. In light of our obligation to interpret the exclusion in a manner that gives full force and effect to the policy language and does not render a portion of the provision meaningless (see County of Columbia v Continental Ins. Co., 83 NY2d 618, 628 [1994]), we find plaintiffs interpretation of the clause to be more in keeping with these well-settled principles of contract interpretation.

The current version of the exclusion at issue was brought about in response to the decision in Allstate Ins. Co. v Pestar (168 AD2d 931 [4th Dept 1990]). The prior version of the exclusion had excluded coverage for bodily injury to an insured. In Pestar, a child was injured when she dove into a State-owned lake. Her parents filed a negligence action against the State and the State counterclaimed seeking contribution. Despite the policy exclusion, the Appellate Division determined that Allstate had a duty to defend and indemnify the parents on the State’s counterclaim, finding that “the liability at issue ... is not the parents’ liability to [the insured child] but rather the parents’ potential liability to the State on a claim of equitable apportionment” (Pestar, 168 AD2d at 931-932). The insurer subsequently added language to the exclusion stating that bodily injury to an insured is not covered “whenever any benefit of this coverage would accrue directly or indirectly to an insured person” (see 9A Couch on Insurance 3d § 128:4).

Assuming the insurer intended this language to exclude coverage under the policy entirely for bodily injury to insureds, it did not accomplish the desired result. Instead of making the exclusion broader, the additional language can be read as limiting the application of the exclusion to situations where an insured would receive a benefit (i.e. payment) under the policy. The amendment, then, can be seen as the insurer’s attempt to cut off indirect claims, such as claims for contribution. As relevant to this appeal, however, the exclusion fails to bar unambiguously payment to a noninsured plaintiff, that is to say it does not clearly cut off the nonresident distributee’s wrongful death claims arising from the fatal injury to an insured.

Other jurisdictions have observed that there are valid policy reasons for excluding coverage in cases such as this one. They have noted that homeowner’s insurance is generally meant to cover bodily injury to noninsureds (see Cincinnati Indem. Co. v Martin, 85 Ohio St 3d 604, 608, 710 NE2d 677, 680 [1999]) and that coverage is excluded in these types of situations in order to avoid imposing liability on the insurer in a case where the insured, due to a close relationship with the injured party, might be unmotivated to assist the insurer in defending against the claim (see Whirlpool Corp. v Ziebert, 197 Wis 2d 144, 149, 539 NW2d 883, 885 [1995]). However, faced with a very similar case addressing the identical exclusion, the Wisconsin Supreme Court recently held that “Allstate has failed to meet its burden to demonstrate that the policy term ‘benefit’ unambiguously includes the contractual right to receive a defense or the contractual right to indemnification” (Day v Allstate Indem. Co., 332 Wis 2d 571, 596-597, 798 NW2d 199, 212, 2011 WI 24, If 57 [2011]). We agree with this analysis.

We therefore find that judgment should have been granted in plaintiffs favor, as the exclusion did not operate to bar coverage for the noninsured plaintiffs wrongful death claim for the death of the insured decedent.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Order reversed, etc.

       We note that the record does not provide any indication that there was collusion between these parties.


author: Pigott, J. Chief Judge Lippman

text:
    [950 NE2d 908, 927 NYS2d 304]
    Margaret Groninger, Appellant, v Village of Mamaroneck, Respondent.
    Argued April 28, 2011;
    decided June 2, 2011

      POINTS OF COUNSEL

      Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III, of counsel), and Michael A. Barnett, for appellant.
    The Appellate Division committed clear error by neither considering nor adhering to this Court’s holding in Walker v Town of Hempstead (84 NY2d 360 [1994]) with respect to any case involving a public parking lot, parking field or parking garage owned or operated by a municipal entity. (Stratton v City of Beacon, 91 AD2d 1018; Doherty v Town of Clarkstown, 233 AD2d 477; Lauria v City of New Rochelle, 225 AD 2d 1013; Healy v City of Tonawanda, 234 AD2d 982; Tuzzolo v Town of Hempstead, 292 AD2d 446; Peters v City of White Plains, 58 AD3d 824; Mendes v Whitney-Floral Realty Corp., 216 AD2d 540; Englehardt v Town of Hempstead, 141 AD2d 601; Fitzpatrick v Barone, 215 AD2d 351; Mountain View Coach Lines v Storms, 102 AD2d 663.)

      Morris Duffy Alonso & Faley, New York City (Anna J. Ervolina and Kenneth E. Pitcoff of counsel), for respondent.
    The dismissal of plaintiffs complaint should be affirmed because municipal parking lots are subject to the prior written notice requirements. (Amabile v City of Buffalo, 93 NY2d 471; Yarborough v City of New York, 10 NY3d 726; Wohlars v Town of Islip, 71 AD3d 1007; Staudinger v Village of Granville, 304 AD2d 929; Healy v City of Tonawanda, 234 AD2d 982; Walker v Town of Hempstead, 84 NY2d 360; Woodson v City of New York, 93 NY2d 936; People v County of Westchester, 282 NY 224; People v Thew, 44 NY2d 681; People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Commrs., 174 NY 417.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff commenced this personal injury action against the Village of Mamaroneck after she slipped and fell on ice in a parking lot owned and maintained by the Village. The Village moved for summary judgment dismissing the complaint, asserting that it had neither received prior written notice of the defect (see CPLR 9804; Village Law § 6-628) nor created the icy condition. Plaintiff opposed the motion, asserting, as relevant to this appeal, that the written notice requirement does not apply to publicly-owned parking lots.

Supreme Court granted the Village’s motion and the Appellate Division affirmed, rejecting plaintiffs contention, and holding that the Village met its burden of demonstrating that it had not received such notice (67 AD3d 733 [2d Dept 2009]). The court further held that plaintiff failed to meet her burden of showing that either exception to the written notice requirement applied (id. at 734) and certified to this Court the question of whether its decision and order was properly made.

Village Law § 6-628, which is nearly identical to CPLR 9804, provides, in pertinent part, that

“[n]o civil action shall be maintained against the village . . . for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective, unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or to cause the snow or ice to be removed, or the place otherwise made reasonably safe.”

Such notice is obviated where the plaintiff demonstrates that the municipality “created the defect or hazard through an affirmative act of negligence” or that a “special use” conferred a benefit on the municipality (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).

Plaintiff, relying on our holding in Walker v Town of Hempstead (84 NY2d 360 [1994]), argues that because a publicly-owned parking lot does not fall within any of the six specifically enumerated locations in the written notice statutes, it is not subject to the written notice requirement. We reject this argument and affirm the Appellate Division’s order.

In Walker, the plaintiff brought a negligence action against the town for injuries he sustained on a municipal paddleball court in the town’s “beach area” (84 NY2d at 364). The town code required prior written notice of defects existing in, among other things, “parking field[s],” “beach area[s]” and “playground equipment” (Walker, 84 NY2d at 364 n 1). This Court concluded that the town’s written notice requirement ran afoul of General Municipal Law § 50-e (4)’s directive that “[n]o other or further notice . . . shall be required” concerning defects on municipal property that fall outside the statutorily delineated locations (i.e., sidewalk, crosswalk, street, highway, bridge or culvert). In reaching that conclusion, we stated that “we can only construe the Legislature’s enumeration of six, specific locations in the exception ... as evincing an intent to exclude any others not mentioned” and therefore constituting “a prohibition of any notice of defect enactment pertaining to locations beyond the six specified,” meaning that the town could not rely on the lack of prior written notice as a defense to a paddleball court accident (Walker, 84 NY2d at 367-368 [citation omitted]). It is this last point of law upon which plaintiff relies in asserting that, because a publicly-owned parking lot is not listed as one of the locations in which defects require prior written notice, such notice was not a condition precedent to suit.

For nearly 30 years, the courts of this state have consistently found that a publicly-owned parking lot falls within the definition of a “highway” and therefore prior notice of defect is required (see e.g. Peters v City of White Plains, 58 AD3d 824, 825 [2d Dept 2009]; Walker v Incorporated Vil. of Freeport, 52 AD3d 697, 697 [2d Dept 2008]; Healy v City of Tonawanda, 234 AD2d 982, 982 [4th Dept 1996]; Lauria v City of New Rochelle, 225 AD2d 1013, 1013-1014 [3d Dept 1996]; Stratton v City of Beacon, 91 AD2d 1018, 1019 [2d Dept 1983]).

Plaintiff asserts that the post -Walker cases directly conflict with our statement in Walker that the town’s local law requiring prior written notice as to “parking field[s]” and “beach area[s]” was “flatly inconsistent with” General Municipal Law § 50-e (4)’s plain language excluding the written notice requirement for locations outside the delineated six (Walker, 84 NY2d at 366). That argument ignores our holding in the post-Walker decision Woodson v City of New York (93 NY2d 936 [1999]).

In Woodson, the plaintiff sued for injuries arising out of his fall on a stairway that led from a sidewalk to a municipal park. This Court rejected the plaintiffs assertion that prior written notice of the defect was not a prerequisite to suit because a “stairway” was not listed as one of the six named locations in the statute. Specifically, this Court noted that the Administrative Code of the City of New York’s definition of “sidewalk” included the term “stairway,” and concluded that the Administrative Code’s notice requirement did not run afoul of General Municipal Law § 50-e (4) because a stairway “functionally fulfills the same purpose” as a standard sidewalk, save for the fact that the former is “vertical instead of horizontal” (Woodson, 93 NY2d at 937, 938).

The parking lot here serves the “functional purpose” of a “highway,” which Vehicle and Traffic Law § 118 broadly defines as “[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” It was owned and maintained by the Village and was accessible to the general public for vehicular travel. As a result, the Village was entitled to notice and an opportunity to correct any defect before being required to respond to any claim of negligence with respect thereto. This holding recognizes that municipalities, which are “not expected to be cognizant of every crack or defect within [their] borders, will not be held responsible for injury from such defect unless given an opportunity to repair it” (Gorman v Town of Huntington, 12 NY3d 275, 279 [2009]).

The Village, through the testimony of its representative, met its burden of establishing that it did not receive prior written notice of the icy condition, thereby shifting to plaintiff the burden of demonstrating either that a question of fact existed in that regard or that one of the Amabile exceptions applied. Plaintiff never contested the Village’s proof that it had not received prior written notice of the defect, asserting, instead, that such notice was unnecessary. Moreover, plaintiff never raised the “special benefit” exception and, to the extent that plaintiff contends that the Village’s snow removal operations created the icy condition that caused plaintiff to fall (see San Marco v Village/Town of Mount Kisco, 16 NY3d 111, 118 [2010]), the Appellate Division properly concluded that the opinion of plaintiffs expert engineer was speculative, as it was premised on an inspection conducted, and photographs taken, of the parking lot over two years after plaintiffs fall.

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

Chief Judge Lippman

(dissenting). In Walker v Town of Hempstead (84 NY2d 360 [1994]), this Court, after extensive briefing and careful consideration, unanimously decided that the Town of Hempstead’s supersession powers did not permit its enactment of a Town Code provision imposing a prior-notice-of-defect requirement for actions seeking damages sustained by reason of “any defective parking field, beach area, swimming or wading pool or pool equipment, playground or playground equipment, skating rink or park property” (Town of Hempstead Code § 6-2). To decide the case as it did, the Court necessarily addressed two principal issues: (1) whether section 6-2 was inconsistent with state law enumerating the locations to which prior notice requirements could apply (i.e., General Municipal Law § 50-e [4]); and (2) whether parts of the subject Code provision inconsistent with state law were nonetheless permissibly enacted by the Town in the exercise of its supersession authority under section 10 of the Municipal Home Rule Law — an inquiry turning upon whether a provision in addition to being inconsistent was expressly prohibited by state law (see Ramhi v Town of Yorktown, 74 NY2d 423, 429-430 [1989]). Only if a local enactment is expressly prohibited by state law, is the locality’s supersession authority exceeded.

As to the first of these inquiries, we found, as an essential part of our analysis, that

“Town of Hempstead Code § 6-2 is in fact inconsistent with General Municipal Law § 50-e (4). The local law — to the extent that it requires prior notice of defect for accidents at a Town ‘parking field, beach area’, etc., as a condition precedent to the commencement of an action against the Town — is flatly inconsistent with the plain language of section 50-e (4) mandating that ‘[n]o other or further notice . . . shall be required as a condition to the commencement of an action’, subject to an exception for notices of defect for six specific kinds of locations, none of which is applicable here” (Walker, 84 NY2d at 366 [emphasis supplied]).

We explained that this conclusion was compelled by the canons of statutory construction:

“we can only construe the Legislature’s enumeration of six, specific locations in the exception (i.e., streets, highways, bridges, culverts, sidewalks or crosswalks) as evincing an intent to exclude any others not mentioned (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 240 [‘where a statute creates provisos or exceptions as to certain matters the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned’])” (id. at 367).

With respect to the second step of the analysis, necessitated by our finding that the challenged Town Code notice provision was inconsistent with General Municipal Law § 50-e (4), we found

“the conclusion inescapable . . . that General Municipal Law § 50-e (4) . . . does indeed contain an express prohibition against the adoption of the provisions of Hempstead Code § 6-2 requiring prior notice of defects at municipal locations other than the enumerated streets, highways, bridges, culverts, sidewalks or crosswalks. This express prohibition precludes the exercise of the Town’s supersession authority” (id. at 367-368).

We observed in this connection that,

“General Municipal Law § 50-e (4) contains clear, prohibitory language strictly limiting deviations from the notice requirements specifically set forth in that section, excepting only notice of defect provisions pertaining to the six enumerated locations. The statute does not merely omit a grant of authority to localities to require notice of defect at locations beyond the six specified (cf., Kamhi v Town of Yorktown, supra), but rather in unmistakable terms provides that ‘[n]o other or further notice . . . shall be required’ beyond those permitted by its terms. The statute must be construed, therefore, as a flat prohibition not only of the Town’s enactment of any notice of claim provision other than that provided for in the statute, but also a prohibition of any notice of defect enactment pertaining to locations beyond the six specified” (id. at 368 [emphasis supplied]).

Obviously, Walker was not, as the majority suggests, an appeal simply about whether the Town could rely on the lack of prior written notice as a defense to a paddleball court accident. Such a characterization trivializes the appeal’s scope of concern and ignores the analysis and findings upon which the Court’s particular conclusion — that a town paddleball court was not among the locations to which a prior written notice requirement might apply — was based. We did not merely determine that the Town could not “rely” (majority op at 128) upon a lack of prior notice defense with respect to paddleball courts, but much more fundamentally that the Town had no authority to impose any prior notice requirement respecting defects at locations beyond the six specifically enumerated in General Municipal Law § 50-e (4). It was only in light of our construction of General Municipal Law § 50-e (4) as an express prohibition upon the enactment of any prior notice requirement other than those the limiting statute specifically allowed, that we concluded as we did respecting the validity of the Town Code provision requiring prior notice of “beach area” defects. Our construction of section 50-e (4) left no doubt as to the invalidity of other portions of Town of Hempstead Code § 6-2, most notably its requirement of prior written notice of “parking field” defects. Indeed, we were explicit that that requirement, like the requirement respecting “beach area” defects, was “flatly inconsistent with” and expressly prohibited by the limiting state statute.

Our construction of General Municipal Law § 50-e (4) in Walker is entitled to be viewed as authoritative. The majority declines to give it effect, not because after close consideration and attention to the principles of stare decisis it has concluded that the construction is wrong or unworkable — manifestly, it is not — but because the intermediate appellate courts of this State have, in a handful of dubiously reasoned decisions perpetuated the pre-Walker notion that a parking lot is a kind of “highway” as to which the prohibition of General Municipal Law § 50-e (4) does not apply. But, of course, we held with great clarity in Walker that a “parking field” is not a location within the statute’s dispensational enumeration, from which it follows ineluctably that a parking lot cannot be a “highway” within the meaning of section 50-e (4). It is not an impressive ground for a contrary conclusion by this Court that the Appellate Division has persisted in adhering to an utterly inconsistent definitional equation. High regard for the work of the Appellate Division cannot alter the obvious circumstance that it is not in the nature of this Court’s role for it to defer to the intermediate appellate courts of this State in a matter of statutory interpretation, particularly when we have carefully and authoritatively construed the governing provision to require a result exactly contrary to the one they have reached.

Only somewhat less dubious as a basis for the Court’s decision, is our memorandum in Woodson v City of New York (93 NY2d 936 [1999]), in which we allowed that a staircase in a municipal park simply connecting lengths of sidewalk at either of its ends could be understood to be a “sidewalk” within the meaning of General Municipal Law § 50-e (4) and thus permissibly the subject of a locally enacted prior written notice requirement. Key to our decision was our observation that “[t]he stairway in this case functionally fulfills the same purpose that a standard sidewalk would serve on flat topography” (id. at 938 [emphasis supplied]). Even if it were supposed that we intended in Woodson to make a doctrine of functional equivalence generally available in discerning the range of reference of section 50-e (4)’s relevant terms — a large enough assumption given our decision in Walker construing the statute principally as a limitation on local legislative power — it is inconceivable that Woodson’s very narrow holding, that “[t]he stairway in this case” (emphasis supplied), i.e., the stairway simply connecting two parts of a sidewalk, was intended to sanction the utterly promiscuous doctrine of functional “equivalence” now employed under which a parking lot is deemed to be a “highway.” Quite apart from the circumstance that our construction of section 50-e (4) in Walker was expressly preclusive of such an equivalence, Woodson, which never purported to impair Walker's validity, does not by its terms allow it either.

It is so obvious as hardly to merit serious discussion that a parking lot does not fulfill the same function as a “highway.” As everyone knows, the dominant purpose of a parking lot is to accommodate stationary, i.e., parked, vehicles. By contrast, the precisely opposite dominant purpose of a highway is to enable vehicles to move with a degree of expedition. While a parking lot may be entered and exited by public roads, the two types of facilities are notable for their essentially discontinuous purposes. Completely absent in the relationship between highways and parking facilities is the continuity, indeed virtual identity of purpose, upon which we justified the particular equivalence drawn in Woodson. Moreover, in Woodson the equivalence, even though not obscure, had been made explicit in section 7-201 of the Administrative Code of the City of New York, whereas here the relied upon, far from evident equivalence does not appear to have been expressly articulated anywhere, raising a profound question as to whether adequate notice of the prior notice requirement was provided.

The extension of the doctrine of functional equivalence to the present facts is not made more viable by the capacious definition of “highway” found in Vehicle and Traffic Law § 118. That definition, although doubtless appropriately employed in construing statutes having to do with highway maintenance and use, was never intended to have relevance in the construction of General Municipal Law § 50-e (4), and, indeed, its superimposition upon the statute is highly problematic. This is not only because it facilitates an equivalence that Walker construed section 50-e (4) to prohibit. There are other problems, among them that there would be no need for the statute’s enumeration of the six location categories as to which prior notice could be required if the operative definition of “highway” was the virtually all-inclusive one contained in Vehicle and Traffic Law § 118. Nor is the use of the definition in this context compatible with the basic maxim that statutory provisions in derogation of the common law, such as those in section 50-e (4) permitting prior notice requirements as to the six specified, contextually exceptional location types, are to be strictly construed (see Gorman v Town of Huntington, 12 NY3d 275, 279 [2009]).

It is true as the majority observes that “municipalities . . . are not expected to be cognizant of every crack or defect within [their] borders” (majority op at 129, quoting Gorman, 12 NY3d at 279 [internal quotation marks omitted]), but it does not follow that there can be no crack or defect about which a municipality may be reasonably expected to acquire either actual or constructive notice in the ordinary course of discharging its proprietary responsibilities. The Legislature has quite reasonably permitted localities to enact prior notice requirements relieving themselves of the unusually onerous responsibility of frequently monitoring their ordinarily extensive “street[s], highway[s], bridge[s], culvert[s], sidewalk[s] [and] crosswalk[s]” (General Municipal Law § 50-e [4]). But, as we held in Walker, the Legislature has not permitted, and, in fact, has prohibited, a similar dispensation as to parking lots. Even if it were inconsistent, or from a policy perspective questionable, to treat parking lots differently from the statutorily enumerated locations, the scope of the statute’s prohibition would not be a matter for judicial adjustment. If it were, though, the case for expanding the scope of General Municipal Law § 50-e’s dispensational clause, would not be particularly compelling. Plainly, the statute’s omission of parking lots from that clause was entirely reasonable. Municipal parking lots, in distinction to extended road systems, are spatially contained; they may, particularly given the nature and frequency of their use, reasonably be expected to be regularly maintained and monitored by their municipal proprietors. The Legislature could, then, quite sensibly have concluded that, when it came to the parking lots within their borders, municipalities should, like landowners generally, be responsible for premises defects of which they have notice, either actual or constructive.

What is at issue is a legislative policy judgment that we have previously recognized and enforced in a controlling decision. A mere judicial aversion to municipal liability is not a ground upon which either should now be disturbed.

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

Order affirmed, etc.

      . In addition to the parties’ briefs, there were lengthy amici submissions by the New York State Conference of Mayors and Municipal Officials and the New York State Trial Lawyers Association.

      . That statute, the focus of the ensuing discussion, provides in relevant part:
      “No other or further notice, no other or further service, filing or delivery of the notice of claim, and no notice of intention to commence an action or special proceeding, shall be required as a condition to the commencement of an action or special proceeding for the enforcement of the claim; provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon.”

      . The paddleball court was at a public beach.


author: Ciparick, J. Pigott, J.

text:
    [951 NE2d 57, 927 NYS2d 618]
    In the Matter of AAA Carting and Rubbish Removal, Inc., Appellant, v Town of Southeast et al., Respondents, and Sani-Pro Disposal Services Corp., Doing Business as Suburban Carting, Respondent.
    Argued May 3, 2011;
    decided June 9, 2011

      POINTS OF COUNSEL

      Robinson Brog Leinwand Greene Genovese & Gluck, P.C., New York City (John D. D'Ercole, Nicholas R. Caputo and Daniel J. Kelman of counsel), for appellant.
    I. The Appellate Division erred because neither “good reason” nor a rational basis supports the conclusion that AAA Carting and Rubbish Removal, Inc. was not the lowest responsible bidder for the contract and, therefore, the Town of Southeast’s award of the contract to Suburban Carting violated General Municipal Law § 103. (Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d 144; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187; Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56; Matter of Diamond Asphalt Corp. v Sander, 92 NY2d 244; Matter of Dellwood Foods v Board of Educ. of Hendrick Hudson School Dist., 97 Misc 2d 751; Matter of Caristo Constr. Corp. v Rubin, 30 Misc 2d 185, 15 AD2d 561, 10 NY2d 538; Matter of Pell v Board of Educ. of Union Free School Disk No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Silk v Caputa, 21 Misc 2d 899; Matter of Elwood Invs. Co. v Behme, 79 Misc 2d 910; Matter of Warren Bros. Co., Div. of Ashland Oil & Ref. Co. v Craner, 30 AD2d 437.) II. The trial court did. not err in ordering that the contract be awarded to AAA Carting and Rubbish Removal, Inc. based upon its determination that AAA Carting was the lowest responsible bidder. (Matter of Luboil Heat & Power Corp. v Pleydell, 178 Misc 562; Matter of Browning-Ferris Indus. of N.Y. v City of Lackawanna, 204 AD2d 1047; Matter of Progressive Dietary Consultants of N.Y. v Wyoming County, 90 AD2d 214; Matter of Family Auction Mkts., Inc. v Hill, 283 App Div 824.)

      Law Office of Joseph P. DePaola, Brewster (Joseph P. DePaola of counsel), for Town of Southeast and others, respondents.
    I. The Town of Southeast’s decision to award the contract to Suburban Carting cannot be disturbed because the Town had a reasonable and rational basis for its decision. (Matter of River-keeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Matter of Gandolfo v White, 224 AD2d 526; Matter of Schettino Serv. Corp. v Holbrook, 218 AD2d 741; Matter of C. K. Rehner, Inc. [City of New York], 106 AD2d 268; Matter of Meyer v Board, of Educ., Union Free School Dist. No. 7, Great Neck, 31 Misc 2d 407; Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d 144; Matter of Eldor Contr. Corp. v Town of Islip, 277 AD2d 233; Matter of Positive Transp. v City of N.Y. Dept. of Transp., 183 AD2d 660; Matter of Limitone v Galgano, 21 Misc 2d 376; Matter of K & M Turf Maintenance [Gallo], 166 AD2d 445.) II. The trial court did not have the authority to direct the Town of Southeast to award the contract to AAA Carting and Rubbish Removal, Inc. because absent some evidence of fraud, this authority is exclusively reserved for the municipality. (Burke’s Auto Body v Ameruso, 113 AD2d 198.)

      Tashjian & Padian, New York City (Gerald Padian of counsel), and Curtiss & Liebell, P.C., Carmel (Timothy J. Curtiss of counsel), for Sani-Pro Disposal Services Corp., respondent.
    I. The Town of Southeast had a rational basis for determining that appellant was not the lowest responsible bidder pursuant to Town Law § 122 and General Municipal Law § 103. (Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56; Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d 144; Matter of Acme Bus Corp. v Board of Educ. of Roosevelt Union Free School Dist., 91 NY2d 51; Matter of Positive Transp. v City of N.Y. Dept. of Transp., 183 AD2d 660; Abco Bus Co. v Macchiarola, 75 AD2d 831, 52 NY2d 938, 454 US 822; Matter of Eldor Contr. Corp. v Town of Islip, 277 AD2d 233; Matter of DeFoe Corp. v New York City Dept. of Transp., 87 NY2d 754; Matter of

      Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Syracuse Intercepting Sewer Bd. v Fidelity & Deposit Co., 255 NY 288; Matter of Haskell-Gilroy, Inc. v Young, 20 Misc 2d 294, 10 AD2d 629, 717.) II. The Town of Southeast was not required to hold a hearing or issue findings of fact pursuant to General Municipal Law § 103. (Quain v Buzzetta Constr. Corp., 69 NY2d 376; Matter of LaCorte Elec. Constr. & Maintenance v County of Rensselaer, 80 NY2d 232; Matter of B. Milligan Contr. v State of New York, 251 AD2d 1084; Matter of Eldor Contr. Corp. v Town of Islip, 277 AD2d 233; Matter of K & M Turf Maintenance [Gallo], 166 AD2d 445; Matter of Haskell-Gilroy, Inc. v Young, 20 Misc 2d 294; Matter of Dellwood Foods v Board of Educ. of Hendrick Hudson School Dist., 97 Misc 2d 751; Matter of Schiavone Constr. Co. v Larocca, 117 AD2d 440, 68 NY2d 610; Matter of Tilles v Williams, 119 AD2d 233; Matter of Consolidated Edison Co. of N.Y. v Public Serv. Commn., 63 NY2d 424, 470 US 1075.)
   OPINION OF THE COURT

Ciparick, J.

In this CPLR article 78 proceeding to annul a determination of a town board, the question presented is whether the town board acted arbitrarily and capriciously and in violation of law in awarding a public bidding contract to other than the lowest responsible bidder. We conclude that General Municipal Law § 103 and Town Law § 122 preclude a town, in an open bidding process, from choosing a higher bid merely because it subjectively believes that a higher bidder is preferable and more responsible than a lower bidder based on criteria not set forth in the bidding proposal.

The Town of Southeast’s existing contract for residential refuse removal services, held by Advanced Waste Systems, was due to expire on December 31, 2009. In the hope of capitalizing on competitive forces in the waste removal business, the Town Board (consisting of four Councilmembers and one Supervisor), in July 2009, sought competitive bids from qualified contractors to handle the Town’s waste removal needs. On July 8, 2009, the Town published a document titled “Information for Bidders and Contract Documents, Specifications & Proposal for the Collection of Refuse, Garbage, Recyclable Materials and Bulk Collection Contract” (the bid request). The bid request set forth the qualifications that the Town required from the prospective contractor. Those qualifications included, among other things, that the work of the contractor be done in a prompt, proper, and workmanlike manner, that the contractor provide operating and safety training for its personnel, that the contractor’s equipment be maintained in safe and sanitary condition, and that it have available reserve equipment that can be put into operation within two hours of a breakdown. The Town Board set August 5, 2009, as the deadline for the submission of bids and reserved the right to reject all bids and readvertise.

The Town Board received three bids. AAA Carting and Rubbish Removal, Inc. (AAA) submitted a bid for $1,210,500 per year, Sani-Pro Disposal Services Corp., doing business as Suburban Carting (Suburban), submitted a bid for $1,496,205 per year, and Advanced Waste Systems submitted a bid for $1,692,306.80 per year. The Town Board, after reviewing the bids, undertook a due diligence procedure, which included visits to AAA and Suburban.

On August 27, 2009, Councilmember Paul Johnson visited AAA. His report concerning that visit provided at its conclusion: “I believe that AAA can reasonably be construed as being ‘responsible’ in addition to being the lowest bidder . . . They have the experience, the capital and infrastructure to execute the Southeast Contract.” On September 2, 2009, Councilmembers Johnson and Richard Honeck visited Suburban. In their report concerning that visit, they noted that Suburban’s fleet of trucks was newer than AAA’s, that Suburban had a strong commitment to safety, and “[t]he operations, cleanliness, professionalism and process are head-and-shoulders superior to that of AAA.”

On September 24, 2009, the Town Board held a meeting. At that meeting, Town Supervisor Michael Rights proposed a resolution, seconded by Councilmember Dwight Yee, to award the residential refuse removal contract to AAA, the lowest responsible bidder. The resolution was defeated three to two. Later, Councilmember Johnson proposed an alternate resolution seconded by Councilmember Honeck, to award the contract to Suburban. The resolution provided that “the Town Board has found that qualitative factors, such as safety, professionalism and the availability of spare vehicles are critical to ensure that the contract is executed in a consistent, safe and quality manner.”

There was discussion regarding the resolution to award the contract to Suburban prior to holding a vote. During that discussion, Councilmember Yee and Town Supervisor Rights expressed grave concern that the Town was awarding the contract to a higher bidder. Representatives for AAA were also present and voiced opposition to the resolution. The resolution passed three to two. The Councilmembers who voted in favor of the resolution noted that safety and reliability were determinative factors in their selection of the higher bid. While casting his vote in favor of the resolution, Councilmember Johnson stated that “the lowest responsible bidder, when taking into consideration all the other qualitative factors, is [Suburban].” At no time during that meeting, or at any other time prior to the resolution and vote awarding the contract to Suburban, was there any statement that AAA did not adequately fulfill any of the requirements as set forth in the bid request.

After its bid was rejected, AAA sent a letter to Town Supervisor Rights objecting to the Town Board’s decision to award the contract to Suburban and requesting an explanation as to why its bid was considered not responsible. AAA received no response to this letter. After communicating with Town counsel, AAA filed a petition, pursuant to CPLR article 78, to set aside the award of the contract to Suburban and to direct the Town to award the contract to AAA.

In response to that petition, Councilmember Honeck provided in his affidavit that in “mak[ing] [his] ultimate decision as to which firm would be most capable of providing for the needs of the residents of the Town of Southeast,” he was “helped” by an “impressive presentation” by Suburban, some of the highlights of which were that Suburban conducted monthly training meetings and safety inspections, utilized a specific computer program for reports of accidents and violations, conducted regular alcohol and drug screening of its employees, was a union shop with uniformed employees, and had a large inventory of practically new equipment and a maintenance department with parts that were replenished daily. Additionally, Councilmember Johnson provided in his affidavit that “we as a Town Board chose a contractor that is more qualified, more ‘responsible and responsive’, and who will provide a higher level of service at a slightly higher monthly cost over the apparent low bidder.”

In response, Pasquale Cartalemi, the office manager for AAA, argued that AAA was equally qualified as Suburban in many of the criteria that the Town Board found compelling, and that AAA could have provided information regarding these criteria had it been requested to do so.

Supreme Court granted the petition finding that “[t]he award to Suburban is not based on substantial evidence, is arbitrary and capricious, represents an abuse of discretion . . . [and] violates [section] 103 of the [General] Municipal Law and [section] 122 of the Town Law.” The Appellate Division reversed, holding that the Town had not acted arbitrarily or capriciously in awarding the contract to Suburban (see Matter of AAA Carting & Rubbish Removal, Inc. v Town of Southeast, 74 AD3d 959, 960 [2d Dept 2010]). It noted that in determining the lowest responsible bidder, the Town could investigate the skill, judgment, and experience of the bidders (see id.). The court further opined that “[w]here a municipality exercises its discretion to reject one or more bids, that decision ‘ought not to be disturbed by the courts unless [it is] irrational, dishonest or otherwise unlawful’ ” (id., quoting Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d 144, 149 [1985]). We granted AAA leave to appeal (15 NY3d 714 [2010]) and now reverse.

Pursuant to Town Law § 122 and General Municipal Law § 103, all contracts for public work must be awarded to “the lowest responsible bidder.” The central purposes of New York’s competitive bidding statutes are the “(1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts” (Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56, 68 [1996]). It is well settled that the bidding statutes are to be construed strictly in order to achieve those purposes (see Matter of Diamond Asphalt Corp. v Sander, 92 NY2d 244, 259 [1998]) and that rejection of the lowest bid carries with it the “inevitable implication of nonresponsibility” for the rejected bidder (Matter of LaCorte Elec. Constr. & Maintenance v County of Rensselaer, 80 NY2d 232, 236 [1992]).

In determining the responsibility of a bidder, an administrative agency or municipality should consider the bidder’s “skill, judgment and integrity” (Matter of DeFoe Corp. v New York City Dept. of Transp., 87 NY2d 754, 763 [1996]) and “where good reason exists, the low bid may be disapproved” (Matter of Conduit & Found. Corp., 66 NY2d at 148). Here, the record before the Town Board was devoid of good reason for rejecting the low bid from AAA. The disapproval, as stated by the Town Board, was based on criteria not contained in the bidding proposal. Inclusion of those criteria would have ensured that every bidder had the information necessary to make an intelligent evaluation and bid (see Matter of Suffolk Roadways v Minuse, 19 AD2d 888, 889 [2d Dept 1963]; see also Matter of Browning-Ferris Indus. of N.Y. v City of Lackawanna, 204 AD2d 1047, 1048 [4th Dept 1994]; Matter of Progressive Dietary Consultants of N.Y. v Wyoming County, 90 AD2d 214, 217 [4th Dept 1982]). In this instance, none of the qualitative factors that the Town Board identified were in the bid request. Accordingly, it was improper for the Town Board to award the contract based on these qualitative factors. A contract subject to the competitive bidding statutes must be awarded to the lowest responsible bidder who fulfills the specifications contained in the proposal. In this case, it was AAA.

What the Town did in essence was to award the contract to a vendor it believed to be more responsible. However, nowhere was it stated, prior to AAA filing its petition, that AAA was not a responsible bidder. In fact, the contrary is true. After his site visit, Councilmember Johnson opined that AAA was a responsible bidder noting that “[t]hey have the experience, the capital and infrastructure to execute the . . . Contract.” Absent a finding of lack of responsibility, there is no authority to support the Town Board’s rejection of AAA’s bid for one that is considered more responsible.

I agree with the dissent that a municipality enjoys “flexibility and discretion” (dissenting op at 147) in its decision-making process. However, accepting a higher bid based on subjective assessment of criteria not specified in the bid request gives rise to speculation that favoritism, improvidence, extravagance, fraud or corruption may have played a role in the decision. One of the primary purposes of the competitive bidding statutes is to guard against such factors (see Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am., 88 NY2d at 68). Furthermore, allowing the Town Board to consider additional criteria not specified in the bid request effectively circumvents the open bidding process. “The public bidding process must be protected from creative efforts by a municipality, as here, to skate around the process, however well intentioned the [Town’s] policy, fiscal or practicality grounds” (Matter of Diamond Asphalt Corp., 92 NY2d at 264). Nothing in the record before the Town Board suggests that AAA was anything other than responsible.

This is not to say that the additional criteria that the Town Board considered in making its decision do not reflect legitimate concerns. If the Town wishes to have these qualitative factors considered, the proper remedy is not to reject the lowest responsible bid, but to reject all the bids submitted and begin the process anew, incorporating whatever reasonable and nonrestrictive requirements it wishes to consider into the bid solicitation (see Matter of Conduit & Found. Corp., 66 NY2d at 149 [“statutory law specifically authorizes the rejection of all bids and the readvertisement for new ones”]; see also General Municipal Law § 103 [1]).

In conclusion, the Town Board acted arbitrarily, capriciously, and in violation of the provisions of General Municipal Law § 103 and Town Law § 122 in awarding the contract to Suburban rather than to AAA.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

Pigott, J.

(dissenting). General Municipal Law § 103 (1) and Town Law § 122 require that public work contracts be awarded “to the lowest responsible bidder.” The majority holds, for the first time, that a contract subject to such competitive bidding statutes must be awarded to the lowest bidder that meets the express bid specifications, regardless of whether the municipality, exercising discretion, considers it to be a responsible bidder. This ruling is a mistake, defying precedent and good policy.

The term “responsible bidder” is not defined by statute, but case law gives it a clear meaning. A responsible bidder is one that is able to perform the terms of a contract successfully in all respects. In determining whether a bidder is responsible, a municipal agency has an obligation to consider the bidder’s skill, judgment, and business integrity (Matter of DeFoe Corp. v New York City Dept. of Transp., 87 NY2d 754, 763 [1996]). Because such qualities do not admit of reduction to a checklist, we have accepted that “responsibility” is “an elastic word” (Abco Bus Co. v Macchiarola, 75 AD2d 831, 833 [2d Dept 1980, Hopkins, J.P., dissenting], revd for reasons stated in dissenting mem 52 NY2d 938 [1981], cert denied 454 US 822 [1981]).

Competitive bidding statutes protect the public purse “by obtaining the best work at the lowest possible price” (Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56, 68 [1996] [emphasis added]; see also Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d 144, 148 [1985]). Only by exercising its sound business judgment on the question whether a bidder is financially and technically responsible can a municipal agency ensure that the best work consistent with a low price is obtained — as opposed to merely adequate work that costs less in the short term, but may cost public money in the future. The dispositive question is always whether it is in the public interest to disapprove a low bid; competitive bidding statutes exist to benefit the public, not contractors. “Neither the low bidder nor any other bidder has a vested property interest in a public works contract” (Matter of Conduit & Found. Corp., 66 NY2d at 148-149).

We have always regarded the municipal agency’s duty of determining the lowest responsible bidder as requiring “honest judgment and discretion” (Syracuse Intercepting Sewer Bd. v Fidelity & Deposit Co., 255 NY 288, 294 [1931]; accord Picone v City of New York, 176 Misc 967, 969 [Sup Ct, NY County 1941]). Accordingly, we have stated that the standard of review of public work contract awards is deferential. “Although the power to reject any or all bids may not be exercised arbitrarily or for the purpose of thwarting the public benefit intended to be served by the competitive process, the discretionary decision ought not to be disturbed by the courts unless irrational, dishonest or otherwise unlawful” (Matter of Conduit & Found. Corp., 66 NY2d at 149 [citations omitted and emphasis added]). I cannot accept the majority’s ruling that the Town of Southeast acted unlawfully in selecting Suburban Carting over AAA Carting.

The majority makes much of the fact that Councilmember Johnson, in a report written after visiting AAA Carting’s facilities, opined that AAA Carting could reasonably be construed as being “responsible.” However, close attention to Johnson’s report, the fuller report of Councilmembers Johnson and Ho-neck following their visit to Suburban Carting’s facilities, and an e-mail of Town Supervisor Rights suggests a different picture. Comparison of the AAA Carting and Suburban Carting facilities made it plain to the Town that AAA Carting had, as the Supervisor put it, “insufficient existing infrastructure and capacity.” It is true that Johnson and Honeck tended to couch their evaluations in comparative terms: Suburban Carting’s “operations, cleanliness, professionalism and process are head- and-shoulders superior to that of AAA [Carting]. It is clear that [Suburban Carting] could deliver a more consistent, reliable and safer service . . . [Suburban Carting’s] visibly newer fleet should also translate into fewer breakdowns as well.” But what their analysis amounted to was a judgment that AAA Carting was an unprofessional organization that would not be able to ensure the “health, safety and welfare of residents” — in short a finding that AAA Carting was not a responsible bidder. They may well have been wrong, but, on this record, I cannot conclude that their conclusion was unreasonable.

In restricting the duty of a municipal agency to determining whether or not the lowest bidder has promised to fulfil the bid specifications, the majority has stripped municipalities of their sound discretion to decide whether a lowest bidder’s undertaking is based on a real ability to perform. This ruling will mean that contractors will be able to obtain public work simply by bidding low and vowing to comply with bid specifications. The result will be that municipalities will often be forced to accept shoddy work by unprofessional contractors the only virtue of whom is that they are cheap.

Moreover, it is impractical to suppose, as the majority does, that all criteria relevant to responsibility may be specified in the bid request. The case law demonstrates that bidders have been ruled not responsible for a large variety of reasons that will elude easy capture in verbal specifications (see e.g. Matter of Interstate Indus. Corp. v Murphy, 1 AD3d 751 [3d Dept 2003] [unresolved investigations by other agencies into alleged organized crime connections]; Matter of Ciprietti-Tolisano Assoc. v Kamovsky, 268 AD2d 234 [1st Dept 2000] [failure to disclose information about taxes and corporate status]; Matter of Deol Elec. Contr. v Barrios-Paoli, 258 AD2d 327 [1st Dept 1999] [failure to have work inspected by licensed master electrician]; Matter of Donson Transp. Servs. v County of Broome, 257 AD2d 825 [3d Dept 1999] [to fulfill the contract, transportation corporation would need to expand its fleet of vehicles in a very brief time frame]; Romano Enters. of N.Y. v New York City Dept. of Transp., 254 AD2d 233 [1st Dept 1998] [bid-rigging scheme on prior contracts, misrepresentation of criminal record]; Matter of Adelaide Envtl. Health Assoc. v New York State Off. of Gen. Servs., 248 AD2d 861 [3d Dept 1998] [possible insolvency]; Municipal Testing Lab. v New York City Tr. Auth., 233 AD2d 105 [1st Dept 1996] [overcharging in a previous contract, questionable billing practices, and employment of uncertified persons]; National States Elec. Corp. v City of New York, 225 AD2d 745 [2d Dept 1996] [falsified records]; Matter of Tully Constr. Co. v Hevesi, 214 AD2d 465 [1st Dept 1995] [corrupt activity and failure to comply with an investigative subpoena regarding illegal waste disposal]; Matter of Mid-State Indus. v City of Cohoes, 221 AD2d 705 [3d Dept 1995] [prior criminal convictions and willful violations of the Labor Law]; Matter of N.J.D. Elecs. v New York City Health & Hosps. Corp., 205 AD2d 323 [1st Dept 1994] [bribery of city inspectors]; Matter of J. N. Futia Co. v Office of Gen. Servs. of State of N.Y., 39 AD2d 136 [3d Dept 1972] [delays, lack of cooperation, and poor performance on prior projects]). In short, the majority ignores our well-established doctrine that evaluation of responsibility requires flexibility and discretion, not simply the unthinking comparison of a bid with a checklist of specifications.

Consequently, I would affirm.

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

Order reversed, etc.

      . The Town Board did not perform due diligence concerning the bid by Advanced Waste Systems, both because it was the highest bidder and because it had been performing the waste removal for the Town, and the Town Board was well aware of its operations.

      . It should be noted that the “slightly higher monthly cost” would have resulted in an additional cost of $857,115 to the Town of Southeast taxpayers over the three-year period of the contract and an additional $571,410 if extended for an additional two years as per the contract renewal options.

      . Town Law § 122 provides that “[e]very officer, board or agency of a town shall let all contracts for public work and all purchase contracts to the lowest responsible bidder after advertisement for bids where so required by section one hundred three of the general municipal law.”
      General Municipal Law § 103 (1) provides in pertinent part that “all contracts for public work . . . shall be awarded by the appropriate officer, board or agency of a political subdivision ... to the lowest responsible bidder.”

      . Respondents make several arguments that AAA was not a responsible bidder, including claims that AAA allegedly did not complete the bid questionnaire, that AAA did not have sufficient equipment and that AAA was not properly licensed in Putnam County. However, these arguments were never raised on the record prior to rejecting AAA’s bid. In fact, these arguments were only raised after AAA brought 'its petition and therefore cannot be considered by this Court (see Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593 [1982] [“A fundamental principle of administrative law long accepted by this court limits judicial review of an administrative determination solely to the grounds invoked by the agency, and if those grounds are insufficient or improper, the court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis”]). It is impermissible for respondents to raise issues in a court proceeding that were not raised on the record at the time of the passage of the resolution.