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

text:
    [965 NE2d 232, 942 NYS2d 5]
    The People of the State of New York, Respondent, v Kevin Smith, Appellant.
    Argued January 10, 2012;
    decided February 14, 2012

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg of counsel), for appellant.
    I. The trial court’s Sandoval ruling, which would have allowed the prosecutor to cross-examine Kevin Smith about the nature of three prior felony drug convictions, was imbalanced and overly prejudicial and an abuse of discretion, where Mr. Smith was accused of virtually identical drug felonies in this case, and where the ruling effectively precluded him from testifying at trial to his version of the facts as he did at the pretrial hearing. (People v Sandoval, 34 NY2d 371; People v Carmack, 52 AD2d 264, 44 NY2d 706;
      People v Bermudez, 98 Misc 2d 704; People v Hayes, 97 NY2d 203; People v Walker, 83 NY2d 455; People v Pavao, 59 NY2d 282; People v Harris, 74 AD3d 984, 15 NY3d 920; People v Vasquez, 71 AD3d 1179; People v Louisias, 29 AD3d 1017; People v Marquez, 22 AD3d 388.) II. Kevin Smith was denied his constitutional right to counsel at trial when the court denied substitution of counsel despite the good cause shown by the complete breakdown in the attorney-client relationship which culminated in counsel refusing to represent Mr. Smith at sentencing. (Gideon v Wainwright, 372 US 335; People v Sides, 75 NY2d 822; People v Branham, 59 AD3d 244; People v Rodriguez, 46 AD3d 396; People v Bryan, 31 AD3d 295; People v Linares, 2 NY3d 507; People v Medina, 44 NY2d 199; People v Arroyave, 49 NY2d 264; Hurrell-Harring v State of New York, 15 NY3d 8; People v Felder, 47 NY2d 287.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Hilary Hassler and Mary C. Farrington of counsel), for respondent.
    I. The trial court’s Sandoval ruling, permitting inquiry into defendant’s three prior convictions for drug offenses, without their underlying facts, was a proper exercise of discretion. (People v Sandoval, 34 NY2d 371; People v Grant, 7 NY3d 421; People v Kello, 96 NY2d 740; People v Hawkins, 11 NY3d 484; People v Duffy, 36 NY2d 258; People v Betts, 70 NY2d 289; People v Casey, 72 NY 393; People v Hayes, 97 NY2d 203; People v Williams, 56 NY2d 236; People v Sorge, 301 NY 198.) II. The trial court’s denial of defendant’s eve-of-trial request to replace his assigned counsel was proper. (People v Sawyer, 57 NY2d 12; People v Linares, 2 NY3d 507; People v Medina, 44 NY2d 199; People v Porto, 16 NY3d 93; People v Sides, 75 NY2d 822; People v Arroyave, 49 NY2d 264; People v Mattiace, 77 NY2d 269; People v Tineo, 64 NY2d 531; People v Rodriguez, 95 NY2d 497; People v Nelson, 7 NY3d 883.)
   OPINION OF THE COURT

Jones, J.

The issues before this Court are whether Supreme Court abused its discretion by denying defendant’s request for the substitution of assigned counsel and by issuing a Sandoval ruling which permitted the prosecutor to refer to defendant’s prior drug-related felony convictions by naming the specific crimes, should he choose to testify. We hold that it did not.

On April 25, 2007, defendant was arrested for the sale of cocaine after detectives, assigned to the surveillance of drug activity in a particular area, observed defendant conduct two apparent drug transactions in front of a bar in Manhattan. The detectives first arrested the two individuals, who they allegedly saw give defendant money in exchange for drugs, and recovered crack cocaine from each of them. Upon defendant’s arrest, they discovered additional drugs in his back pocket. Defendant was charged with two counts of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree.

Prior to jury selection, defendant indicated that his former defense counsel “really botched up” and that he felt his present attorney was not “going to represent [him] to the best of his ability.” Initially, defendant expressed that he and his attorney disagreed about how to proceed with pretrial motions. More specifically, he complained that counsel did not follow his request to renew a motion to dismiss the indictment based upon the testifying officers’ failure to state their prior experience and training before the grand jury. Counsel explained, however, that he indicated to defendant that the issue was preserved for appeal in the event that the motion court ruled incorrectly. According to defendant, he did “not feel comfort [able] going to . . . trial with this man.” The court warned that it would not continue to assign defendant different attorneys. After noting that the case was ready for trial, the court advised defendant that counsel was an able, competent and experienced criminal attorney. Defense counsel explained his preparation for defendant’s trial and that he had tried many observation sale cases. The court denied defendant’s request for the substitution of assigned counsel. Defendant however did not accept the court’s decision and continued to express that he did not want to go to trial with present counsel. The court further explained that it would not assign new counsel to him without a reason.

At the Sandoval hearing, the prosecutor sought to question defendant, if he chose to testify, concerning three prior felony drug convictions from 1994, 1995 and 2004, as well as a 2004 conviction for unlawfully carrying a gun. Defendant requested that the prosecution be restricted to referring to the convictions as felonies without indicating the offense. The trial court denied defendant’s request, but limited the prosecutor’s inquiry regarding the prior convictions to the type of crime, county and date of conviction. The court further advised that it would instruct the jury that the prior convictions are not evidence of defendant’s guilt in the present case. Defendant testified during pretrial proceedings and gave a different account of the events, specifically denying the possession of any drugs. Defendant did not testify at trial.

Defendant was convicted, upon a jury verdict, of the crimes charged in the indictment. On appeal, defendant argued, among other things, that the trial court erred in denying his application for substitution of assigned counsel and its Sandoval ruling constituted an abuse of discretion.

The Appellate Division “unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing, and otherwise affirmed” (75 AD3d 420, 420-421 [1st Dept 2010]). It held that “[defendant failed to demonstrate good cause for the assignment of substitute counsel” and that the trial “court properly exercised its discretion” in its Sandoval ruling (id. at 421). A Judge of this Court granted defendant leave to appeal, and we now affirm.

Criminal defendants are guaranteed the right to effective representation by counsel under the Federal and State Constitutions (see US Const 6th Amend; NY Const, art I, § 6; see also People v Linares, 2 NY3d 507 [2004]; People v Baldi, 54 NY2d 137 [1981]). Moreover, our Constitution guarantees indigent defendants the right to assigned counsel (see People v Medina, 44 NY2d 199 [1978]; People v Koch, 299 NY 378, 381 [1949]). It is well-settled that “[t]he legal assistance provided must be ‘effective’ ” (Medina, 44 NY2d at 207). To ensure effective representation of assigned counsel, courts “must ‘carefully evaluate serious complaints about counsel’ ” (Linares, 2 NY3d at 510, quoting Medina, 44 NY2d at 207). To that end, when a defendant requests the assignment of new counsel, provided “good cause” exists, “a court is well advised to effect [such] change” (Medina, 44 NY2d at 207). “Good cause determinations are necessarily case-specific and therefore fall within the discretion of the trial court” (Linares, 2 NY3d at 510).

In determining the existence of “good cause,” a trial court must consider “whether present counsel is reasonably likely to afford a defendant effective assistance and whether the defendant has unduly delayed in seeking new assignment” (Medina, 44 NY2d at 208). This Court has observed that “a conflict of interest or other irreconcilable conflict with counsel” may be “good cause for a substitution” (People v Sides, 75 NY2d 822, 824 [1990] [the Court concluded that the trial court abused its discretion by failing to inquire into defendant’s request for the assignment of substitute counsel]). However, the Court has also noted that courts have upheld refusal to assign substitute counsel where “tensions between client and counsel on the eve of trial were the precipitate of differences over strategy” or “where a defendant was guilty of delaying tactics” (Medina, 44 NY2d at 208 [citations omitted]).

Here, defendant failed to demonstrate that good cause for the substitution of assigned counsel existed. Supreme Court conducted an inquiry into defendant’s request for new assigned counsel. The inquiry revealed that defendant did not approve of the representation counsel sought to provide him despite counsel detailing that he had considered defendant’s motions, had prepared for trial and had tried numerous observation sale cases, which have similar factual allegations and issues as defendant’s case. The court noted that counsel was competent and likely to provide effective representation; the case was ready for trial; and defendant provided “no reason” to substitute counsel for a second time. Against this factual setting, the trial court’s denial of defendant’s request for the substitution of assigned counsel was a proper exercise of discretion.

“Evidence of prior specific criminal, vicious or immoral conduct should be admitted if the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility” (People v Sandoval, 34 NY2d 371, 376 [1974]). A court may exclude the evidence entirely; “limit [the prosecution’s] inquiry to the mere fact that there has been a prior conviction; it may limit inquiry to the existence and nature of the prior conviction; or it may permit examination into the facts and circumstances underlying the prior conviction” (People v Hayes, 97 NY2d 203, 208 [2002]). This determination, however, remains within the discretion of the trial court (see id. at 207).

It is important to note that the concerns observed by the Sandoval Court remain relevant. The Court recognized that the “cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial” (Sandoval, 34 NY2d at 377). It stated,

“in the prosecution of drug charges, interrogation as to prior narcotics convictions (unless proof thereof is independently admissible) may present a special risk of impermissible prejudice because of the widely accepted belief that persons previously convicted of narcotics offenses are likely to be habitual offenders . . .
“In weighing prejudice to the defendant’s right to a fair trial, an important consideration may be the effect on the validity of the fact-finding process if the defendant does not testify out of fear of the impact of the impeachment testimony for reasons other than its direct effect on his credibility—as where the defendant would be the only available source of material testimony in support of his defense” (id. at 377-378).

Nonetheless, the Hayes Court, in a domestic violence case, concluded it is error to apply a fixed rule that requires trial courts to limit cross-examination “to the mere existence of defendant’s prior convictions where prior crimes are similar to the pending charges” (97 NY2d at 208). Because this Court has been disinclined over the years to construct per se rules concerning the cross-examination of a defendant where prior convictions are similar to the pending charges, the discretion of the trial court regarding such determinations remains intact. We reiterate, however, that trial courts should take care in weighing “whether the prejudicial effect of impeachment testimony far outweighs the probative worth of the evidence on the issue of credibility” (Sandoval, 34 NY2d at 376).

Here, defendant, on trial for several drug charges, requested that the prosecutor’s cross-examination of him be limited to the mere fact that his prior convictions were unspecified felonies. The trial court, instead, limited the prosecutor’s potential inquiry to the name of the crime, county and date of conviction and also advised that it would instruct the jury that the prior convictions are not evidence of defendant’s guilt. Although the concerns of Sandoval still exist and may have been implicated in this case, the court weighed appropriate concerns and limited the scope of cross-examination. Thus, pursuant to Hayes, no abuse of discretion is apparent.

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

Pigott, J. (concurring).

In my view, Supreme Court abused its discretion in ruling that cross-examination of the defendant could include eliciting the Penal Law names of his prior convictions. However, I find the error in this case to be harmless and therefore concur in the result.

A criminal defendant who chooses to testify may be cross-examined regarding prior crimes and bad acts that bear on his credibility as a witness. However, under People v Sandoval (34 NY2d 371 [1974]), the trial court must strike a proper balance between the probative value of evidence of defendant’s prior convictions or bad acts, with respect to his credibility, and the danger of prejudice that such evidence presents, measured both by the impact of such evidence on the jury and by the effect in discouraging the defendant from testifying (id. at 375). The Sandoval court expressly warned of the dangers of allowing cross-examination about the prior drug-related convictions of a defendant now accused of a drug crime.

“[C]ross-examination with respect to crimes or conduct similar to that of which' the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility. Thus, in the prosecution of drug charges, interrogation as to prior narcotics convictions . . . may present a special risk of impermissible prejudice because of the widely accepted belief that persons previously convicted of narcotics offenses are likely to be habitual offenders. On the other hand, proof of prior convictions of perjury or other crimes of individual dishonesty should usually be admitted on trial of another similar charge, notwithstanding the risk of possible prejudice, because the veiy issue on which the offer is made is that of the veracity of the defendant as a witness in the case.” (Sandoval, 34 NY2d at 377-378 [citation omitted].)

The present case presents exactly the unacceptable risk of prejudice that Sandoval warns against. Had defendant, facing multiple drug charges, testified, he would have been asked not whether he had committed felonies in 1994, 1995 and 2004, but whether his 1994 and 1995 convictions were for criminal sale of a controlled substance in the third degree, and his 2004 convictions were for possession of cocaine with the intent to sell, possession of marihuana, and unlawfully carrying a gun. The jury, considering whether to convict him of, inter alia, criminal sale of a controlled substance in the third degree, would have heard that he had committed precisely the same crime before. The extraordinarily high risk of prejudice that results is justified, the majority apparently believes, on the basis that hearing this information would enable the jury to decide whether he was a credible witness. The majority condones this process, and thereby takes Sandoval to an extreme that the Judges who signed that opinion surely cannot have intended.

The majority ignores the fact that the principle underlying our decision in Sandoval was, and remains, that the mere fact that a defendant has previously been guilty of a felony itself casts doubt on his credibility. A defendant’s prior crime evinces “a willingness or disposition ... to place the advancement of his individual self-interest ahead of principle or of the interests of society” (Sandoval, 34 NY2d at 377). The particular nature of the defendant’s prior crime usually adds nothing to the fact that, by breaking the law, he has been willing to further his own interests at the cost of others’ interests and at the expense of ethical principles. (The exception is when the prior crime is one that necessarily involves individual dishonesty or untrustworthiness, such as theft, fraud, or bribery, etc.)

Moreover, in my view, where many crimes are concerned, there is often little practical difference between, on the one hand, allowing cross-examination as to the nature of prior convictions (i.e., their Penal Law names) but not their underlying facts, and, on the other hand, allowing cross-examination as to the nature of prior convictions and their underlying facts. When the crime with which defendant is charged involves sale of cocaine, a juror who is told that defendant was previously convicted of criminal sale of a controlled substance and possession of cocaine with the intent to sell does not need to be told any more of the underlying facts in order for there to be an unacceptably large risk that the evidence will have a “disproportionate and improper impact” (Sandoval, 34 NY2d at 376).

Having said this, I am aware that we have repeatedly “declined to prohibit cross-examination solely because of the similarity of prior acts to the crimes charged” (People v Hayes, 97 NY2d 203, 208 [2002]). Moreover, in principle I accept the position that a defendant should “not [be] shielded from cross-examination merely because he or she specializes in one particular form of criminal conduct” (People v Rivera, 2 AD3d 543 [2d Dept 2003]). It might be unjust to bar cross-examination of defendants accused of drug crimes concerning their prior drug crimes, while allowing defendants accused of, say, burglaries or assaults to be cross-examined about their prior drug crimes. However, it is equally unjust to permit cross-examination of defendants accused of drug crimes concerning their prior drug crimes, as a matter of routine practice, without any true exercise of discretion balancing the probative and the prejudicial. And that, I believe, is what occurred in the present case. A Sandoval hearing “is of little value if the issue can be decided by the Trial Judge in his [or her] unfettered discretion. The irreducible minimum is that the determination be made on a reasoned basis, measuring propensity for conviction against relation to credibility” (People v Pollock, 50 NY2d 547, 551 [1980, Meyer, J., dissenting]).

It is important for trial courts to recognize that Sandoval allows for a straightforward method of restricting cross-examination that avoids risks of prejudice without giving unfair advantage to the “criminal specialist.” In my view, in general, striking a balance between the probative value of the prior convictions and the risk of prejudice requires the trial court to permit cross-examination only as to the existence of prior convictions, not their Penal Law names (“nature”) or underlying circumstances. (I would make an exception when the prior crimes are crimes of individual dishonesty, the nature of which is directly probative of credibility.) This balancing has long been called the “Sandoval compromise,” though the term is sometimes used more generally. This approach prevents a defendant who has been convicted of serious crimes in the past from testifying at his trial while benefitting from the jury’s assumption that he does not have a criminal record, and allows jurors to make rational inferences, about the likelihood of his lying at trial, from his lack of respect for society’s rules of conduct. At the same time, it eliminates the great risk that jurors will make illicit inferences of guilt from propensity to a type of crime.

The “Sandoval compromise” was first put forward by Supreme Court, New York County, in a decision issued some five years after Sandoval.

“Simply put, the pure Sandoval compromise is permitting the prosecutor to ask the testifying defendant one question (or, perhaps, two where both pertinent previous felonies and misdemeanors are involved) with respect to all prior convictions and connected underlying and immoral acts. The question or questions can be phrased: ‘Have you ever been convicted of a prior felony?’ ‘Have you previously been convicted of two (or three, as appropriate) felonies?’ ‘Have you (also) been convicted of a prior misdemeanor?’ The precise language of the brief interrogation is, of course, dependent upon the type and number of prior convictions in each individual case. The compromise can also be allowed, as a matter of discretion, in conjunction with other nonprejudicial credibility inquiry, as the previous conduct of the defendant warrants. It can also be used with respect to some prior convictions, while permitting or barring cross-examination as to others.
“Concerning the pure Sandoval compromise, and presuming that the defendant gives the expected affirmative answers and does not voluntarily advance misleading or unwarranted claims or denials, this would be all of the cross-examination on that subject the prosecutor would be allowed.” (People v Bermudez, 98 Misc 2d 704, 707-708 [Sup Ct 1979] [citations omitted].)

Since then, the Sandoval compromise has been used in numerous cases, and frequently applauded by the Appellate Division. The Third Department in particular very often upholds the Sandoval compromise. The Second Department has upheld or approved of the Sandoval compromise regularly too. In the Fourth Department, it is standard practice. However, in the First Department, notwithstanding the provenance of the term “Sandoval compromise,” the practice is apparently less common. It may be that language in People v Hayes (supra) has discouraged the “Sandoval compromise.” At oral argument, defense counsel noted that it is now commonplace for trial courts in New York City to permit the impeachment of defendants by use of the Penal Law names of their prior crimes, leaving out only the underlying circumstances. Unfortunately, the majority of this Court now encourages the entire State of New York to imitate the “rough justice” of the City.

Because “Sandoval error is . . . subject to harmless-error analysis” (People v Grant, 7 NY3d 421, 424 [2006]), and because I believe that the case against defendant here was overwhelming and that there is no significant probability that something he could have said in his defense would have resulted in acquittal, I would hold that the Sandoval error in this case was harmless. Finally, I do not disagree with the majority’s disposition of the substitution-of-counsel issue. Consequently, I concur in the result.

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

Order affirmed.

       Defendant’s first attorney had been substituted and replaced with the present trial counsel.

      . See e.g. People v Anderson (89 AD3d 1161, 1163 [3d Dept 2011]); People v Weber (40 AD3d 1267, 1267-1268 [3d Dept 2007]); People v Kirton (36 AD3d 1011,1013 [3d Dept 2007]); People v Young (13 AD3d 716, 718 [3d Dept 2004]); People v Porter (304 AD2d 845, 846 [3d Dept 2003]); People v De Chellis (265 AD2d 735 [3d Dept 1999]); People v Hagin (238 AD2d 714, 716 [3d Dept 1997]); People v Stiffler (237 AD2d 753, 754 [3d Dept 1997]); People v Noonan (220 AD2d 811, 813 [3d Dept 1995]); People v Elkins (211 AD2d 921, 922 [3d Dept 1995]); People v Mahan (195 AD2d 881, 883 [3d Dept 1993]); People v Szczepanski (172 AD2d 884 [3d Dept 1991]); People v Benson (123 AD2d 470, 471 [3d Dept 1986]); People v Handly (96 AD2d 649 [3d Dept 1983]); see also e.g. People v Cooke (101 AD2d 983, 984 [3d Dept 1984]).

      . See e.g. People v Murad (55 AD3d 754, 755 [2d Dept 2008]); People v Pennetti (182 AD2d 647 [2d Dept 1992]); see also e.g. People v Michalek (194 AD2d 568, 569 [2d Dept 1993]); People v Durham (154 AD2d 615 [2d Dept 1989]); People v Potue (146 AD2d 718, 719 [2d Dept 1989]); People v Banks (143 AD2d 677, 678 [2d Dept 1988]); People v Padilla (123 AD2d 364, 365 [2d Dept 1986]).

      . See e.g. People v Cruz (30 AD3d 1047 [4th Dept 2006]); People v Brazeau (304 AD2d 254, 255 [4th Dept 2003]); People v Thomas (305 AD2d 1099 [4th Dept 2003]).


source: Caselaw Access Project

author: Smith, J. Ciparick, J. (dissenting).

license: Public Domain

text:
    [965 NE2d 913, 942 NYS2d 411]
    The People of the State of New York, Appellant, v Alaa Agina, Respondent.
    Argued January 5, 2012;
    decided February 16, 2012

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Karen Wigle Weiss and John M. Castellano of counsel), for appellant.
    The Appellate Division erred in holding that evidence of defendant’s commission of a prior assault involving a similar distinctive modus operand! was inadmissible to prove the identity of the assailant. (People v Beam, 57 NY2d 241; People v Allweiss, 48 NY2d 40; People v Condon, 26 NY2d 139; People v Bleakley, 69 NY2d 490; People v D'Alessandro, 13 NY3d 216; People v Crimmins, 36 NY2d 230; People v Gillyard, 13 NY3d 351; People v Arafet, 13 NY3d 460; People v Lewis, 69 NY2d 321; People v Hudy, 73 NY2d 40.)

      Appellate Advocates, New York City (Lisa Napoli and Lynn W.L. Fahey of counsel), for respondent.
    When respondent’s wife described an assault that lasted for many hours and respondent admitted arguing with her during that period and challenged only her credibility, the Appellate Division correctly held that a former wife’s testimony that respondent assaulted her was inadmissible to prove his identity in the instant case. (People v Molineux, 168 NY 264; People v Rojas, 97 NY2d 32; People v Condon, 26 NY2d 139; People v Arafet, 13 NY3d 460; People v Alvino, 71 NY2d 233; People v Vargas, 88 NY2d 856; People v Fitzgerald, 156 NY 253; People v Allweiss, 48 NY2d 40; People v Jackson, 39 NY2d 64; People v Resek, 3 NY3d 385.)
   OPINION OF THE COURT

Smith, J.

Under the so-called “identity” or “modus operandi” exception to the Molineux rule, evidence of an uncharged crime that has distinctive characteristics in common with the crime for

which the defendant is on trial may be admissible unless the defendant’s identity as the person who committed the act in question is conclusively established by other evidence. In this case, defendant admitted that he was present at the time when the victim said the acts occurred, and did not accuse anyone else of committing them, but denied that he did what he was accused of doing. We hold that on these facts his identity was not so conclusively established as to render evidence of a prior crime inadmissible.

I

The complainant, defendant’s wife, testified to a brutal attack that began on the late afternoon of March 28, 2004 and continued until the following morning. According to her testimony, defendant accused her of cheating on him, tore off her clothes, jumped on her, tied a purse strap around her neck and swung her around; then he tied a rope around her neck, wrists and ankles, taped her mouth, put a bag over her head several times for increasingly long periods while talking to her about how long it would take a person to suffocate, punched her, head butted her, stomped on her, made a small cut near her eye with a knife, forced her to take pills and wash them down with rubbing alcohol, and burned her breast with a lighter. He finally released her, and the couple remained together for most (though not all) of the time during the next four days. On April 2, while defendant and the complainant were shopping, the complainant signaled to another shopper and asked her to call the police.

Pictures taken of the complainant on April 2 were admitted into evidence: they show significant injuries on her neck, arms, hip and breast. A nurse who examined the complainant on April 2 testified that the mark on her breast came from a burn.

At a Molineux hearing held before trial, the People asked to present to the jury the testimony of Lisa H., defendant’s ex-wife, about an incident 15 months before the one at issue in this case. The People’s application was granted over defendant’s objection, and Lisa testified at trial that defendant accused her of cheating on him, threatened her with a knife, grabbed her, choked her, tied her wrists and ankles, told her she was going to die and inserted a lighter (evidently unlit) into her vagina.

Defendant was convicted of attempted first-degree assault, second-degree assault and unlawful imprisonment. The Appellate Division reversed the judgment of conviction, concluding that Lisa’s testimony should not have been admitted. The Appellate Division believed that defendant’s identity was not in issue at trial, and that therefore Lisa’s testimony served no purpose except “to enhance the credibility of the complainant” (People v Agina, 74 AD3d 831, 834 [2d Dept 2010]). A Judge of this Court granted leave to appeal, and we now reverse.

II

Under the familiar rule of People v Molineux (168 NY 264 [1901]), evidence of uncharged crimes is inadmissible where its only relevance is to show defendant’s bad character or criminal propensity (see People v Arafet, 13 NY3d 460, 464-465 [2009]; People v Alvino, 71 NY2d 233, 241 [1987]). Also familiar is the identity or modus operandi exception: evidence of a similar crime may be admissible to identify the defendant where “the similarities [are] unusual enough to compel the inference that the defendant committed both” (People v Beam, hi NY2d 241, 251 [1982]). Where this test is met, evidence of the uncharged crime may be admitted “unless the defendant’s identity is conclusively established” by other evidence (People v Condon, 26 NY2d 139, 142 [1970]).

We assume for present purposes that defendant’s assault on his ex-wife, Lisa, was similar enough to the alleged assault on his current wife, the complainant, to trigger the identity exception. That is an issue the Appellate Division did not reach, and on which we express no opinion. The issue before us is whether defendant’s identity was so conclusively established as to prevent the exception from being invoked. We hold that it was not.

The evidence that we have summarized, the substance of which was known to the trial judge when he decided the Molineux application, was not conclusive in establishing defendant’s identity as the person who attacked his wife. While the existence of the complainant’s injuries was proved by photographs, nothing in the People’s case except the complainant’s testimony (apart from the evidence of the uncharged crime) pointed to defendant as the person who injured her. Since the jury might doubt the complainant’s word, this evidence was not conclusive. It is true, as the dissent says, that there was no possibility of mistaken identity (dissenting op at 606). But the jury could have believed that the complainant’s identification was intentionally false, as defense counsel’s opening suggested, in language quoted by the dissent: “she is not telling the truth” (dissenting op at 607).

At the time of the Molineux hearing the trial judge also knew defendant’s version of the facts. Defendant had testified at a previous hearing on whether he had violated the conditions of his probation. The People do not claim, and we do not assert, as the dissent suggests, that his testimony “opened the door” to otherwise inadmissible evidence (dissenting op at 606 and 606-607 n). For the reasons we have explained, the proof of identity, in the absence of defendant’s testimony, was not conclusive. But defendant claims that his testimony removed identity as an issue in the case. We disagree.

Defendant testified at the probation violation hearing (and later at trial) that he had been with the complainant, as she said, at their home on the night of March 28-29, and that they had been largely together from then until April 2. He testified, however, that he had spent the day of March 28 with another woman, and did not return home until 9:30 or 10:00 in the evening, thus contradicting the complainant’s testimony that they had been together all day, arguing, and that the violent encounter began in the late afternoon. At the violation hearing (though not at trial) the other woman testified and corroborated what defendant said, thus giving him a partial alibi.

Defendant testified that, after he returned home on March 28, he and the complainant had an argument, in which the complainant pushed him and he “tried to stop her by holding her.” He denied assaulting her in any way; he said he did not hit her, kick her, tie her up, cut her with a knife or threaten to do so, or burn her. He said that he observed no marks on the complainant, and he could not explain how the marks that were in the photographs got there. Asked on cross-examination if the complainant was “into self-mutilation ... as far as you know,” he replied: “[a] 11 I can tell you is that [the complainant] is a very angry person.”

In short, defendant admitted being present during some of the time when the complainant said her injuries were inflicted, and he did not testify that anyone other than he inflicted them or had an opportunity to do so. But he denied that he did it, and even seemed to suggest that the complainant might have deliberately harmed herself. It may well be that defendant’s testimony was hard to believe; but he asked the jury to believe it, and in doing so he did not concede—indeed he actively disputed—his identity as the person who committed this crime. That is the “identity” that is relevant for purposes of the identity exception to Molineux: the identity of the defendant as the person who did the acts, not just as someone who was present at the scene.

We therefore conclude that the Appellate Division erred in holding defendant’s identity to be “conclusively established” for Molineux purposes. The case must return to the Appellate Division, so that it can decide whether the identity exception is applicable to these facts, and resolve any other open issues.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts and issues raised but not determined on the appeal to that court.

Ciparick, J. (dissenting).

Because I agree with the Appellate Division that identity is not an issue in this case and that defendant’s ex-wife’s testimony concerning his abuse of her was admitted, not to establish identity through a unique modus operandi, but to establish propensity, it was an abuse of discretion to allow that evidence to be admitted on the People’s direct case. Therefore, I respectfully dissent.

It is axiomatic that evidence of uncharged crimes is inadmissible where “its only purpose is to show bad character or propensity towards crime” (People v Arafet, 13 NY3d 460, 464-465 [2009]). Here, the People argue that the evidence that defendant had assaulted his ex-wife in a unique and similar manner was utilized for the purpose of establishing identity. Establishing identity, of course, is one of the exceptions to the general rule that uncharged prior bad acts are inadmissible (see People v Molineux, 168 NY 264, 293 [1901]).

However, in Molineux we cautioned against liberal use of the identity exception.

“The reason for this is obvious. In the nature of things there cannot be many cases where evidence of separate and distinct crimes, with no unity or connection of motive, intent or plan, will serve to legally identify the person who committed one as the same person who is guilty of the other. The very fact that it is much easier to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime proves the dangerous tendency of such evidence to convict, not upon the evidence of the crime charged, but upon the superadded evidence of the previous crime. Hence our courts have been proverbially careful to subject such evidence to the most rigid scrutiny, and have invariably excluded it in cases where its relevancy and competency was not clearly shown” (168 NY at 313-314).

Here, complainant was defendant’s wife and the alleged assault occurred over a period of 12 hours. This was not a case where there was any possibility of mistaken identity. The majority asserts that, by maintaining his innocence, defendant put the issue of identity into play because “identity [was not] conclusively established” by other evidence (see majority op at 603, quoting People v Condon, 26 NY2d 139, 142 [1970]). However, the facts of this case and the facts of Condon are readily distinguishable. In Condon, there was a single eyewitness to the crime, who did not personally know the defendant. During the trial, the eyewitness was thoroughly questioned concerning his identification of the defendant. We held that “since the single eyewitness was extensively impeached, defendant’s identity was not conclusively established” (Condon, 26 NY2d at 142). Furthermore, we noted that defendant “maintained throughout the trial that he was the victim of mistaken identity. Thus, identity was still very much in issue” (id. n). There is no comparable claim of mistaken identity in this case. Complainant testified that it was defendant, her husband, who subjected her to abuse for 12 continuous hours.

Similarly, in People v Beam (57 NY2d 241 [1982]), also relied upon by the majority, “the assailant’s identity remained in dispute. It was put into issue by the defense cross-examination of the victim which raised questions concerning the validity of his identification of the defendant” (id. at 251). By contrast, in this case, the cross-examination of complainant focused on inconsistences in her testimony and at no time was her identification of her husband as her assailant questioned.

While defendant’s testimony at trial that he did not know the cause of complainant’s injuries, never saw any bruises or burn marks and did not perpetrate any of the acts that complainant accused him of doing may arguably have opened the door for the admission of prior bad acts, we need not opine on that as the evidence was admitted during the People’s direct case, a clear Molineux violation.

It is clear, in this case, that the defense was not one of mistaken identity but rather that of attacking the credibility of complainant. Indeed, in his opening statements to the jury, defense counsel stated:

“The central question here is not if the complainant was injured, or if the complainant suffered bruises to her body. The question here is, did [defendant] cause those bruises with intent to cause a serious physical injury as defined under the law.
“Now, the complainant will come and tell her version of what happened. But the evidence and the absolute lack of evidence will show that she is not telling the truth.”

Furthermore, the People’s summation did not argue that the ex-wife’s testimony was admitted to demonstrate that complainant was certain as to the identification of defendant but to bolster complainant’s testimony and show that defendant has a propensity to abuse women. In fact, the People stated that “[the ex-wife] comes in and says two years ago for the same reason that he did it to her, he also did it to me. That’s why she’s here.” The People essentially admit that the ex-wife was not there to prove defendant’s identity but defendant’s propensity to beat up his wives. The People went on to state that if defendant suspects someone of cheating on him “[h]e ties them up. He tortures them.” This clearly is not an argument regarding the identity of defendant.

“In truth, it is simply another . . . way of saying if defendant did it once to [his ex-wife], he would do it again; therefore he probably abused [complainant]. Since this line of reasoning is nothing more than a disguised propensity argument, it falls within the core of what the Molineux rule prohibits and should therefore have been excluded” (People v Hudy, 73 NY2d 40, 56 [1988] [internal quotation marks omitted]).

In short, this is not a case where identity is an issue. In fact, defendant’s identity was conclusively established by complainant’s testimony. The majority today crafts a rule whereby any time a defendant does not stipulate to identity as the perpetrator of the acts complained of—which is very unlikely—and proclaims innocence, he or she is putting identity at issue allowing for evidence of prior crimes or similar bad acts to be admitted. This is precisely the danger we have repeatedly warned against in Molineux and its progeny.

Accordingly, I would affirm the order of the Appellate Division and order a new trial excluding the prior crimes evidence.

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

Order reversed, etc.

       The majority relies heavily on the fact that the trial court, while considering the Molineux application, was aware of what defendant might say at trial since he had previously testified regarding the incident at a violation of probation hearing. This reliance is misplaced as defendant could have chosen to exercise his right not to give testimony on his own behalf during trial.


author: Per Curiam.

text:
    [965 NE2d 257, 942 NYS2d 30]
    In the Matter of Dolores Sedacca et al., Appellants, et al., Petitioners, v Edward P. Mangano, County Executive of Nassau County, et al., Respondents.
    Argued January 9, 2012;
    decided February 21, 2012

      POINTS OF COUNSEL

      Lynn, Gartner & Dunne, LLP, Mineola (Kenneth L. Gartner of counsel), for appellants.
    I. The New York State and Nassau County Legislatures, when authorizing and creating the Nassau County Assessment Review Commission, expressly provided that each commissioner was to serve for a term of five years provided that the terms of the commissioners would be staggered in order to avoid any abrupt and simultaneous turnover of the Commission membership and provided that no more than six of the nine members of the Commission could be from a single political party. The courts below held that Nassau County Executive Edward E Mangano was nevertheless possessed with the carte blanche to, immediately upon taking office, fire all nine commissioners without cause, for the sole stated reason that he wished to substitute his own political appointees. This was, respectfully, erroneous. (Matter of Gizzo v Town of Mamaroneck, 36 AD3d 162; Matter of Burke v Krug, 161 Misc 687, 272 NY 575; Matter of Starr v Meisser, 67 Misc 2d 297, 39 AD2d 712; Incorporated Vil. of Atl. Beach v Town of Hempstead, 27 AD2d 556, 19 NY2d 929; Reinhart v Troy Parking Auth., 36 AD2d 654; Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 301 AD2d 819, 2 NY3d 249; Matter of Rockland County Patrolmen’s Benevolent Assn., Inc. v Prendergast, 25 AD3d 615; Matter of John H., 56 AD3d 1024; Matter of Steinmann v Village of Spring Val., 261 AD2d 548; Matter of Burbridge v Miele, 214 AD2d 669.) II. The County Attorney stipulated that the conflict of interest posed by his duty to represent both (1) the County Executive and (2) the commissioners the County Executive had fired, required the County to retain independent counsel for the commissioners. Respondents have never challenged the fact that a further conflict of interest, between (1) appellants, and (2) the commissioners who did not wish to challenge their firings by the County Executive, prevented the single independent counsel from alone representing all of the commissioners. Respondents’ refusal to pay for an additional, unconflicted, counsel to represent appellants, violated their obligation to provide appellants with counsel. (Matter of Cappelli v Sweeney, 167 Misc 2d 220, 230 AD2d 733; Rimar v Continental Cas. Co., 50 AD2d 169; Ottaviano v Genex Coop., 3 Misc 3d 1024, 15 AD3d 924; 69th St. & 2nd Ave. Garage Assoc. v Ticor Tit. Guar. Co., 207 AD2d 225, 87 NY2d 802; Elacqua v Physicians’ Reciprocal Insurers, 52 AD3d 886; City of New York v Clarendon Natl. Ins. Co., 309 AD2d 779; Hanover Ins. Co. v Cowan, 172 AD2d 490; Matter of Schulz v Doetsch, 217 AD2d 861.)

      John Ciampoli, County Attorney, Mineola (Dennis J. Saffran of counsel), for respondents.
    I. The lower courts properly refused to impose a cause requirement for the removal of Nassau County Assessment Review Commission commissioners when two of the three relevant statutory provisions are silent about removal and the third is “clear and unambiguous” in allowing the County Executive to remove fixed-term appointees without cause under a simplified “notice and opportunity to be heard” procedure. (United States v Wilson, 290 F3d 347; Matter of Sullivan v Taylor, 279 NY 364; Matter of Sheldon v Stabile, 57 Misc 2d 407; People ex rel. Walker v Roosevelt, 144 Misc 525; Mohassel v Fenwick, 5 NY3d 44; Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175; Barber v Dembroski, 54 NY2d 648; Matter of Erdman v Ingraham, 28 AD2d 5; People v Richetti, 302 NY 290; Matter of Prue v Hunt, 78 NY2d 364.) II. The County of Nassau was not required to provide counsel for petitioners, or to pay their fees.
   OPINION OF THE COURT

Per Curiam.

The question presented by this appeal is whether the Nassau County Executive has the authority to terminate the commissioners of the Nassau County Assessment Review Commission (ARC) in the absence of cause, prior to the expiration of their fixed, statutory terms. We conclude that he does not.

Under Real Property Tax Law § 523-b, the State Legislature authorized Nassau County to establish the ARC for the purpose of “reviewing and correcting all assessments of real property” (RPTL 523-b [2] [d]). The ARC was created “as an alternative” to a board of assessment review, which is maintained by other local governments under RPTL 523 to fulfill the same purpose (RPTL 523-b [1]). The purpose of the statute was to combat the growing number of property tax grievances that were being filed and to increase the accuracy of the assessments, thereby avoiding having to make refunds and interest payments on improperly assessed parcels (see Mem of Senator Dean G. Skelos in Support of L 1998, ch 593, 1998 NY Legis Ann, at 373). Section 523-b allowed the ARC to function year round, as opposed to the previously existing Board of Assessment Review that met for three months out of the year, and also increased the number of commissioners in the hope that more tax grievances would be “resolved without court involvement and in a more timely manner” (id.). The Nassau County Legislature adopted RPTL 523-b as section 6-40.1 et sea. of the Nassau County Administrative Code.

The ARC is comprised of nine commissioners who are appointed by the County Executive subject to approval by the County Legislature (see RPTL 523-b [2] [a]). The statute provides that the commissioners shall have staggered five-year terms and that no more than six of the commissioners can be enrolled voters of the same political party (see RPTL 523-b [2] [a], [c]). The duration of the term is consistent with that of a member of a board of assessment review (see RPTL 523 [1] [b], [c] [boards are comprised of three to five members with staggered five-year terms]).

On December 24, 2009, the outgoing Nassau County Executive appointed six ARC commissioners, including the three petitioners herein, to fill vacancies. On January 14, 2010, counsel to the then-newly elected County Executive (respondent herein) sent letters to each of the nine commissioners, informing them that they were being removed from office pursuant to section 203 of the Nassau County Charter. The letter stated that “the County Executive must select his own Commissioners of ARC to promote and implement the new administration’s plans and policies,” including reducing the costs of government and ameliorating problems that had arisen within the assessment system. The letter also opined that it would frustrate the County Executive’s mandate and the will of the voters to allow the previous administration to wield a continuing influence over the ARC. The letter stated that, under Nassau County Charter § 203 the County Executive’s decision was final, but in any event offered the commissioners an opportunity to be heard, if they so desired.

Eight of the nine commissioners responded to the County Attorney, requesting that he provide them with legal representation under Nassau County Charter § 1102 and asking for an opportunity to be heard by the County Executive. The County Attorney responded, notifying the commissioners that he would not appear on their behalf due to a conflict presented by his representation of the County Executive but advising them that he had retained independent special counsel on their behalf. Petitioners met with the proffered counsel but, as the result of strategic and philosophical differences, decided to retain their own attorney.

Petitioners commenced this combined declaratory judgment action/CPLR article 78 proceeding seeking an order declaring that the County Executive does not have the power to remove the commissioners during their terms absent cause, enjoining respondents from taking any such action and directing that petitioners are entitled to reasonable attorneys’ fees incurred for their independently retained private counsel. Supreme Court denied the petition and, in effect, dismissed the proceeding, finding that the provision governing petitioners’ removal—Nassau County Charter § 203—contained no requirement of cause for termination. The court also denied petitioners’ request for attorneys’ fees. (27 Misc 3d 414 [2010].)

The Appellate Division modified solely to declare that the County Executive has the authority to remove the ARC commissioners from their offices prior to the expiration of their statutory terms in the absence of cause (78 AD3d 716 [2d Dept 2010]). The Court found that the language of Nassau County Charter § 203 was clear and unambiguous in requiring only that appointees be given notice of the reasons why they were being removed and provided with an opportunity to be heard. The Court found it significant that the County Charter did not explicitly state that appointees were removable only for cause. This Court granted petitioners leave to appeal and we now modify.

The Nassau County Charter vests the County Executive with authority to appoint members of county boards and commissions, subject to approval of the County Legislature (see Nassau County Charter § 203 [1]). Concomitantly, Respondents therefore argue that, according to the plain language of the County Charter, the County Executive was within his authority to terminate petitioners, despite the absence of any wrongdoing on their part and regardless of the statutory term of office, in order to appoint individuals of his choosing. In our view, this argument is inconsistent with the salutary purpose of the legislation at issue.

“[t]he County Executive may at any time remove any person so appointed; provided that in the case of members of boards and commissions appointed for definite terms, no removal shall be made until the person to be removed has been serv[ed] with a notice of the reasons for such removal and given an opportunity to be heard, publicly if he or she desires, thereon by the County Executive. The decision of the County Executive shall be final” (Nassau County Charter § 203 [1]).

As we have repeatedly recognized, “[i]n matters of statutory . . . interpretation, ‘legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]’ ” (Nostrom v A.W. Chesterton Co., 15 NY3d 502, 507 [2010], quoting Matter of ATM One v Landaverde, 2 NY3d 472, 477 [2004]). To that end, ascertaining legislative intent involves considering “ ‘the spirit and purpose of the act and the objects to be accomplished’ ” (Ferres v City of New Rochelle, 68 NY2d 446, 451 [1986], quoting People v Ryan, 274 NY 149, 152 [1937]).

Although RPTL 523-b does not set forth any procedure for the removal of commissioners, the statute demonstrates the legislative intent to protect the ARC from political influence. It is evident that the fixed, staggered terms of office along with the requirement that all of the commissioners must not be members of a single political party, are designed to promote stability of membership and political diversity. Notably, the five-year term of office exceeds the length of the County Executive’s own. This design may frustrate the most recent expression of the electorate’s mandate, but it is meant precisely to avoid a wholesale change of membership of the ARC upon the installation of each successive administration.

When Nassau County Charter § 203 is read in light of the purposes of RPTL 523-b, the Charter provision does not convey the “plain” meaning that respondents attribute to it. Section 203 (1) refers specifically to “members of. . . commissions appointed for definite terms,” and makes clear that, when those members are removed, “reasons for such removal” must be provided. “Reasons,” in this context, can reasonably be read as a synonym for “cause”: thus, section 203 permits removal of commissioners serving fixed terms for cause, but not otherwise. Accordingly, we find that RPTL 523-b and Nassau County Charter § 203 are not incompatible and read them together to accomplish the clear legislative intent.

In addition, although the commissioners, as county employees, are not protected by the Public Officers Law (see e.g. Public Officers Law § 36 [public officers are subject to removal “for any misconduct, maladministration, malfeasance or malversation in office”]), it is instructive that a finding of some type of misconduct would be required to remove members of the similarly situated Board of Assessment Review (see 4 Ops Counsel SBEA No. 27 [1974]).

Removing the commissioners without cause under Nassau County Charter § 203, as respondents urge, would frustrate the legislative intent by nullifying the requirements of the RPTL and rendering the staggered statutory terms of office in RPTL 523-b superfluous. Under these circumstances, the commissioners are not essentially at-will employees, subject to termination for any reason whatsoever.

Petitioners’ argument that they are entitled to attorneys’ fees, however, was properly rejected. The County is required to “provide for the defense” of an employee involved in a civil action arising out of an act or omission that occurred during the scope of his or her employment (see Nassau County Administrative Code § 22-2.8 [2] [a]). Where, as here, the employees commenced the action, there is no obligation on the part of the County to pay for their “defense.” Nor does the Administrative Code otherwise obligate the County to bear responsibility for the commissioners’ legal fees.

Accordingly, the order of the Appellate Division should be modified, without costs, by granting judgment declaring that in the absence of cause, the County Executive does not have authority to remove commissioners of the Nassau County Assessment Review Commission prior to the expiration of their statutory terms, and remitting to the Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.

Order modified, etc.

      . Petitioners were not appointed for full terms, but to fill the remaining portions of existing terms.

      . One of the nine commissioners was retained by the County Executive and two others ultimately decided to resign.

      . The three remaining commissioners accepted the representation of special counsel and were permitted to intervene in this action at Supreme Court. The intervenors are not parties to this appeal.


author: Ciparick, J. Read, J. (dissenting).

text:
    [965 NE2d 246, 942 NYS2d 19]
    Eastside Exhibition Corp., Appellant, v 210 East 86th Street Corp., Respondent.
    Argued January 10, 2012;
    decided February 21, 2012

      POINTS OF COUNSEL

      Marcus Rosenberg & Diamond LLP, New York City (David Rosenberg of counsel), for appellant.
    I. There is no basis to depart from this Court’s centuries’ old rule that a landlord’s partial actual eviction of its tenant suspends the tenant’s entire rent. (Dyett v Pendleton, 8 Cow 727; Lewis v Page, 4 Wend 423; Christopher v Austin, 11 NY 216; Edgerton v Page, 20 NY 281; Fifth Ave. Bldg. Co. v Kernochan, 221 NY 370; Matter of Wallace v 600 Partners Co., 86 NY2d 543; TAG 380, LLC v ComMet 380, Inc., 10 NY3d 507; South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; Maxton Bldrs. v Lo Galbo, 68 NY2d 373.) II. Stare decisis, a foundation of our common-law system, fundamental to real property law, must be respected. (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77; People v Taylor, 9 NY3d 129; People v Hobson, 39 NY2d 479; Paragon Indus, v Williams, 122 Misc 2d 628; Holy Props, v Cole Prods., 87 NY2d 130; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Eastern Consol. Props, v Adelaide Realty Corp., 95 NY2d 785; Douglaston Manor v Bahrakis, 89 NY2d 472; City of Buffalo v Cargill, Inc., 44 NY2d 7.) III. There was no basis for the holding that the floor-to-ceiling steel cross-bracing may remain, effectively enjoining tenant to suffer it. (I. H. P. Corp. v 210 Cent. Park S. Corp., 16 AD2d 461; Bianchi v Hood, 128 AD2d 1007.) IV Law of the case is not absolute and does not “trump” stare decisis. (People v Palumbo, 53 NY2d 894; Aridas v Caserta, 41 NY2d 1059; Liss v Trans Auto Sys., 68 NY2d 15; People v Taylor, 87 AD2d 771, 57 NY2d 729.)

      Kaufman Friedman Plotnicki & Grun, LLP, New York City (Howard Grun of counsel), for respondent.
    I. The doctrine of actual eviction has always required a substantial intrusion by a landlord into a tenant’s premises which significantly and negatively impacts upon a tenant’s use of its premises so as to trigger the imposition of the draconian remedy of a full rent abatement. (Lounsbery v Snyder, 31 NY 514; Two Rector St. Corp. v Bein, 226 App Div 73; Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77; Huber v Ryan, 26 Misc 428; Bergman v Papia, 58 Misc 533; Brown v Kaufman, 188 Misc 1025; Two Park Ave. Co. v Intermediate Factors Corp., 17 Misc 2d 442; Two Tudor City Place v Joseph, 11 Misc 2d 870; Fifth Ave. Estates v Scull, 42 Misc 2d 1052; Edgerton v Page, 20 NY 281.) II. The Appellate Division’s approach is equitable and in fine with modern realities. (Javins v First Natl. Realty Corp., 428 F2d 1071; Kavanaugh v Cohoes Power & Light Corp., 114 Misc 590; Minjak Co. v Randolph, 140 AD2d 245; Manhattan Mansions v Moe’s Pizza, 149 Misc 2d 43; Edgerton v Page, 20 NY 281.) III. Appellant failed to prove that it incurred any damages as a result of respondent’s minimal taking. (F.H. Krear & Co. v Nineteen Named Trustees, 810 F2d 1250; Cochran v A/H Battery Assoc., 909 F Supp 911; Randall-Smith v 43rd St. Estates Corp., 11 NY2d 99; Peerless Candy Co., Inc. v Halbreich, 125 Misc 889; Appliance Giant, Inc. v Columbia 90 Assoc., LLC, 8 AD3d 932; 487 Elmwood v Hassett, 107 AD2d 285; Frame v Horizons Wine & Cheese, 95 AD2d 514.)
   OPINION OP THE COURT

Ciparick, J.

In this appeal, we are asked to consider whether a minimal and inconsequential retaking of space that has been leased to a commercial tenant constitutes an actual partial eviction relieving the tenant from all obligation to pay rent. We conclude, under the circumstances of this case, where such interference by a landlord is small and has no demonstrable effect on the tenant’s use and enjoyment of the space, total rent abatement is not warranted.

I

In February 1998, plaintiff Eastside Exhibition Corp. entered into a lease with defendant 210 East 86th Street Corp. to occupy two floors in defendant’s seven-story retail and office building to operate a multiplex movie theater with 1,150 seats and four screens. The lease ran from March 1, 1998 to December 16, 2016. Article 13 of the lease permits the landlord to enter the demised premises to make repairs and improvements and provides that there be no abatement of rent during the time such work is in progress. Article 4 of the lease provides that there be no allowance to the tenant for the diminution of rental value arising from the making of any repairs or improvements.

More than nine years ago, in December 2002, defendant landlord, without giving notice to or receiving permission from plaintiff, entered the demised premises and installed cross-bracing between two existing steel support columns on both of plaintiff’s leased floors causing a change in the flow of patron foot traffic on the first floor and a slight diminution of the second-floor waiting area. The concededly unaesthetic cross-bracing was placed in preparation for the addition of two additional floors to the building. Plaintiff ceased paying rent as a remedy for the alleged actual partial eviction and commenced this action, seeking a permanent injunction barring defendant from doing any further work in the premises and directing defendant to remove the cross-bracing. Plaintiff also sought an abatement of its rent obligation. Supreme Court granted plaintiff a temporary restraining order on any further work by defendant and also ordered defendant to expeditiously complete the current work. Subsequently, a nonjury trial was held to determine whether the cross-bracing constituted an actual partial eviction so as to allow for the complete abatement of rent. At trial, the parties stipulated that the total area of the premises was between 15,000 and 19,000 square feet and that the cross-bracing occupied approximately 12 square feet.

Supreme Court, as relevant here, dismissed plaintiffs claim and entered judgment for defendant for unpaid rent. In its decision, the court stated that although the lease did not grant the landlord the right to permanently deprive the tenant of any portion of the demised premises and that such a deprivation will normally result in “liability for all rent [being] suspended although the tenant remains in possession of the portion of the premises from which he was not evicted” (quoting Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 [1970]), here, the taking of 12 square feet of non-essential space in plaintiffs lobby constituted a de minimis taking not justifying a full rent abatement.

The Appellate Division modified on the law, holding that there is no de minimis exception to the rule that any unauthorized taking of the demised premises by the landlord constitutes an actual eviction (see Eastside Exhibition Corp. v 210 E. 86th St. Corp., 23 AD3d 100, 104-105 [1st Dept 2005]). However, the court declined to award plaintiff a full rent abatement, stating that “current landlord/tenant realities [make it] particularly untoward automatically to apply harsh and oppressive strictures derived from feudal law that mirror the policies and concerns of that earlier society” and that in light of that, the remedy is to compensate plaintiff for its actual damages (id. at 105). The Appellate Division remanded the matter to Supreme Court for a hearing to determine actual damages (see id.).

The hearing on damages was held three years later. Plaintiff proffered two witnesses, who were unable or unwilling to estimate actual damages, essentially testifying that damages were impossible to determine given the significant number of variables in the motion picture theater industry. After the hearing, Supreme Court found that plaintiff failed to establish any damages and made no award to plaintiff. The Appellate Division affirmed, declining to revisit legal issues as it felt bound by the law of the case as earlier expressed in the first Appellate Division order (see Eastside Exhibition Corp. v 210 E. 86th St. Corp., 79 AD3d 417, 418 [1st Dept 2010]). We granted plaintiff leave to appeal (16 NY3d 708 [2011]) and now affirm on different grounds.

II

It is well settled that the withholding of the entire amount of rent is the proper remedy when there has been a partial eviction by a landlord (see Fifth Ave. Bldg. Co. v Kernochan, 221 NY 370, 372-373 [1917] [“Eviction . . . suspends the obligation of payment . . . because it involves a failure of the consideration for which rent is paid ... If such an eviction, though partial only, is the act of the landlord, it suspends the entire rent because the landlord is not permitted to apportion his own wrong”]). “The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord; and thus the consideration of his agreement to pay rent has failed” (Edgerton v Page, 20 NY 281, 284 [1859]). This is true even if a tenant remains in possession of the premises (see Barash, 26 NY2d at 83). This remedy of total abatement of rent for an actual partial eviction is one of very long standing in New York (see Dyett v Pendleton, 8 Cow 727 [NY Sup Ct 1826]) and we do not, herein, jettison or overrule it as stated by the dissent (see dissenting op at 631-632).

The question we now address is whether there can be an intrusion on the demised premises that is of such trifling amount that imposition of the draconian remedy of total rent abatement is unjustified. We made it clear in Lounsbery v Snyder (31 NY 514, 516-517 [1865]) that not every intrusion amounts to an eviction which warrants a full rent abatement and damages are an appropriate remedy when there has been no substantial interference with the use of the premises. We further stated “[i]f it were necessary, [one] might properly invoke the application of the familiar maxim, ‘de minimis non curat lex’ ” (the law does not concern itself with trifles) (id. at 516).

Plaintiff would like us to adopt an all or nothing rule that would allow for full rent abatement. However, applying the principle that a “landlord is not permitted to apportion his own wrong” (Fifth Ave. Bldg. Co., 221 NY at 373) and a rule that any minimal intrusion warrants a total abatement to a case such as this, involving only a trivial taking, “has little but age and inertia to recommend it” (3 Randolph, Friedman on Leases § 29:2.4, at 29-15 [5th ed]). Scholars have criticized an all or nothing rule noting that it is “more talismanic than rational” (Stoebuck and Whitman, Law of Property § 6.32, at 284 [3d ed]). Additionally, courts in other jurisdictions have rejected such a harsh rule (see Talbot v Citizens Natl. Bank of Evansville, 389 F2d 207, 211 [7th Cir 1968] [holding that under Indiana law an encroachment on 5.45 feet of leased space does not rise to the level of an eviction because there was no “showing that the part of the demised premises from which (the tenant) was evicted was a material part or that the eviction was a material breach of the covenant of quiet enjoyment”]; Dussin Inv. Co. v Bloxham, 96 Cal App 3d 308, 317 [Ct of App, 4th Dist, Div 2 1979] [“a tenant is not relieved entirely of the obligation to pay rent by an actual, partial eviction unless the eviction is from a substantial portion of the premises and that in determining the question of substantiality, the court may and should consider the extent of the interference with the tenant’s use and enjoyment of the property”]).

Given the inherent inequity of a full rent abatement under the circumstances presented here and modern realities that a commercial lessee is free to negotiate appropriate lease terms, we see no need to apply a rule, derived from feudal concepts, that any intrusion—no matter how small—on the demised premises must result in full rent abatement. Rather, we recognize that there can be an intrusion so minimal that it does not prescribe such a harsh remedy. For an intrusion to be considered an actual partial eviction it must interfere in some, more than trivial, manner with the tenant’s use and enjoyment of the premises. That a partial eviction must intrude on the enjoyment of the demised premises was implicated early on in Dyett where the court noted that the tenant, having retained some portion of the premises, nonetheless was not required to pay for the part of the premises retained because there existed “such a disturbance, such an injury to its beneficial enjoyment, such a diminution of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent” (8 Cow at 731). Similarly, in Edgerton, we stated that “there must be an entry and expulsion of the tenant by the landlord, or some deliberate disturbance of the possession depriving the tenant of the beneficial enjoyment of the demised premises, to operate a suspension or extinguishment of the rent” (20 NY at 285).

While the dissent seems to view our holding as revolutionary and “schizophrenic” (dissenting op at 625 n 1), we regard it as nothing more than an application of the familiar de minimis principle which we have never held or suggested to be inapplicable to actual partial eviction cases. So far as we know, no cases actually granted a 100% rent abatement for a so called “eviction” as trivial as this one—a taking of less than one-tenth of one percent of the space, so located that its absence has no measurable effect on the tenant’s use.

Thus we conclude that on the record before us plaintiff has totally failed to demonstrate any actual damages or loss of enjoyment of the premises due to the landlord’s erection of the cross-bracing occupying 12 square feet in a 15,000 to 19,000 square foot space. That the flow of foot traffic was minimally impeded and the cross-bracing was unattractive was merely a trivial interference with the tenant’s use and enjoyment of the premises. The interference by the landlord here is thus de minimis and “[n] either injunctive nor monetary relief is warranted” (Wing Ming Props. [U.S.A.] v Mott Operating Corp., 79 NY2d 1021, 1023 [1992]).

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

Read, J. (dissenting).

The majority disapproves of the strict common-law “rule, derived from feudal concepts, that any intrusion—no matter how small—on the demised premises must result in full rent abatement” for two reasons: “inherent inequity” and “modern realities that a commercial lessee is free to negotiate appropriate lease terms” (majority op at 623). But as even a critic of what is often called the “one-inch rule” has recognized,

“[i]t is one thing to conclude that a deliberate physical trespass should not be penalized with a draconian rent penalty, but it is quite another to conclude that it should be sanctioned by permitting the landlord to appropriate to itself space already leased to [the] tenant, no matter how small. Such a finding is inconsistent with the traditional values the common law has placed upon the right of possession” (3 Randolph, Friedman on Leases § 29:2.4, at 29-15— 29-16 [2011]; see majority op at 623, quoting Professor Randolph’s comment that the “one-inch rule” “has little but age and inertia to recommend it”).

Unfortunately, this is where the law of New York has now been left—a tenant has no effective remedy if the landlord unilaterally takes back a portion of the leased premises during the lease term.

And while it is true that a lessee may negotiate around the majority’s new de minimis rule in the future, this is no consolation to plaintiff Eastside Exhibition Corp. (tenant) and the many other commercial lessees currently subject to long-term leases entered into with the correct understanding that Judge Cardozo’s decision in Fifth Ave. Bldg. Co. v Kernochan (221 NY 370 [1917]) stated New York law. Indeed, why was it not incumbent on defendant 210 East 86th Street Corp. (landlord) to negotiate an “appropriate lease term[ ]” (majority op at 623) if it did not want to be subject to the well established common-law rule? I respectfully dissent.

I.

In Kernochan, the landlord leased to the tenant part of the first floor and basement of a Fifth Avenue building. By the terms of the lease, the basement included a vault beneath the sidewalk in front of the building. The vault was maintained under a revocable license from the city. During the lease’s term, the city revoked the license and excluded the tenant from at first the whole vault and later from a part of it for purposes of building the subway. Judge Cardozo emphasized that, under these facts,

“[w]e are dealing . . . with an eviction which is actual and not constructive. If such an eviction, though partial only, is the act of the landlord, it suspends the entire rent because the landlord is not permitted to apportion his own wrong. If the eviction is the act of a stranger by force of paramount title, the rent will be apportioned, and a recovery permitted for the value of the land retained” (id. at 373).

A half-century after Kernochan, Judge Breitel in Barash v Pennsylvania Term. Real Estate Corp. (26 NY2d 77 [1970]) reiterated that “[i]n the case of actual eviction, even where the tenant is only partially evicted, liability for all rent is suspended although the tenant remains in possession of the portion of the premises from which he was not evicted” (id. at 83 [citing Kernochan, 221 NY at 373]).

Thus, we have long held that full abatement of rent is the remedy where the landlord physically expels or excludes the tenant from any portion of the leased premises (see e.g. Friedman on Leases at 29-15 [noting that “no less an authority” than Judge Cardozo has endorsed the “one-inch rule,” citing Kernochan]). My colleagues have nonetheless now discovered in Lounsbery v Snyder (31 NY 514 [1865])—a case decided 52 years before Kernochan—an implied de minimis exception for intrusions that are trifling in amount and no more than trivial in effect.

But Lounsbery was a trespass case where the landlord did not permanently intrude on the leased premises. Pursuant to an oral rent reduction agreement reached by the parties in April 1857, the tenants allowed the landlord to resume partial occupancy and to deposit firewood temporarily on a lot where a store was located, which the tenants retained. In January or February of 1858, one of the tenants forbade the landlord from continuing to keep firewood there, but the landlord “paid no heed” (31 NY at 515). When the landlord subsequently sued the tenants for unpaid rent (as reduced under the oral agreement), they “claimed that the exercise by [the landlord] of the privilege of piling his firewood on part of the store lot, after notice to discontinue the practice, was equivalent to an eviction” (id.).

We said that the presence of the firewood on the' property “at most” demonstrated “a mere trespass, and amounted neither to an actual nor a constructive eviction” because “[tjo work a suspension of the obligations of the tenant . . . there must be an exclusion of the occupant from some portion of the premises demised”—i.e., a partial actual eviction—“or a substantial and effectual deprivation of the beneficial enjoyment of the property in whole or in part”—i.e., a constructive eviction (id. at 515-516 [emphasis added]; see also id. at 516 [“(I)t is well settled that the wrongful acts of a lessor do not, in law, amount to an eviction, where there is neither an actual nor a constructive expulsion of the lessee from any portion of the premises demised”]). The trespass in Lounsbery—stockpiled firewood—obviously did not permanently exclude or expel the tenant from any portion of the leased property, unlike the cross-bracing fitted into the theater lobby by landlord in this case. In sum, in Lounsbery, there was no exclusion or expulsion, not merely a de minimis one.

My colleagues’ interpretation of the common law, as articulated by Judge Cardozo in Kernochan, is unique so far as I have been able to discover: the traditional rule is, after all, referred to as the “one-inch rule” in recognition of its absolute nature. And its absolute nature is both the source of the criticism of it and the mainspring of its deterrent effect. In particular, the degree of the landlord’s interference with a tenant’s use and enjoyment of the premises has heretofore only been seen as important in the case of constructive eviction, not actual eviction.

As Judge Breitel explained in Barash, “[a]n actual eviction occurs only when the landlord wrongfully ousts the tenant from physical possession of the leased premises. There must be a physical expulsion or exclusion” (26 NY2d at 82-83 [citing Kernochan]). Contrariwise,

“constructive eviction exists where, although there has been no physical expulsion or exclusion of the tenant, the landlord’s acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises. The tenant, however, must abandon possession in order to claim that there was a constructive eviction” (id. at 83 [citations omitted and emphases added]).

In other words, where (and because) there has been no physical ouster, the tenant must show a substantial and material deprivation of its beneficial use and enjoyment of the premises (and, in addition, relinquish possession) in order to establish constructive eviction, which relieves the tenant of the obligation to pay rent. But in the case of an actual eviction, even if only partial, a deprivation of beneficial use and enjoyment occurs by virtue of the physical expulsion or exclusion.

The majority conflates actual and constructive eviction when stating that “[f]or an intrusion to be considered an actual partial eviction it must interfere in some, more than trivial, manner with the tenant’s use and enjoyment of the premises” (majority op at 623), relying on Dyett v Pendleton (8 Cow 727 [1826]) and Edgerton v Page (20 NY 281 [1859]). Dyett is famous for establishing the doctrine of (and coining the phrase) constructive eviction, while Edgerton held that abandonment was a prerequisite to constructive eviction (see Weinberg, From Contract to Conveyance: The Law of Landlord and Tenant, 1800-1920 [Part 1], 5 S 111 U LJ 29, 66-82 [1980]). We developed the doctrine of constructive eviction by analogy to and in contrast with partial actual eviction, which is therefore discussed in both cases.

In the majority’s view, Dyett and Edgerton establish that “early on” we held that a “partial [actual] eviction must intrude on the [tenant’s] enjoyment of the demised premises” (majority op at 623), apparently meaning that the tenant’s use and enjoyment of the leased property must be impaired in some way beyond the mere fact of a physical expulsion or exclusion. This is not correct, as is demonstrated by the passages from these cases recited by the majority.

When discussing partial actual eviction in Dyett, we stated that

“a tenant shall not be required to pay rent, even for the part of the premises which he retains, if he has been evicted from the other part by the landlord. As to the part retained, this [meaning the physical expulsion or exclusion] is deemed such a disturbance, such an injury to its beneficial enjoyment, such a diminution of the consideration upon which the contract is founded, that the law refuses its aid to coerce the payment of any rent” (8 Cow at 731 [emphasis added]).

Concomitantly, in Edgerton, we observed that “there must be an entry and expulsion of the tenant by the landlord[ ]”—referring to an actual eviction, in whole or in part—“or some deliberate disturbance of the possession depriving the tenant of the beneficial enjoyment of the demised premises[ ]”—referring to a constructive eviction—“to operate a suspension or extinguishment of the rent” (20 NY at 285). In short, a physical expulsion or exclusion is, by definition, nontrivial.

II.

Applying the new de minimis rule to the facts of this case, the majority holds that tenant has not shown that the unauthorized taking was more than trifling in amount and trivial in effect, as a matter of law, because landlord appropriated “less than one-tenth of one percent of the [total leased] space, so located that its absence has no measurable effect on the tenant’s use” (majority op at 624). Put slightly differently, although the steel cross-bracing “minimally impeded” foot traffic in the lobby and was “unattractive,” it entailed “merely a trivial interference with the tenant’s use and enjoyment of the premises” (id.).

Notably, though, the lease called for tenant to pay landlord $2.75 million to convert the leased premises into a “quad,” or two-story movie theater with four separate theaters, in accordance with architectural drawings and a work schedule incorporated by reference in the lease’s exhibits. The “quad” plans show a first-floor lobby that is roughly 15 feet wide (east-west) and 40 feet long (north-south), with two one-foot square support columns or pillars in the center, 20 feet apart. But after landlord installed the cross-bracing (and railings required as a consequence), the distance between the columns was reduced from 20 feet to 8 feet—i.e., the 15-foot-wide lobby is now bisected by two structures akin to freestanding walls, each six feet long and one foot wide. This is considerably different from what tenant bargained for in the lease, and paid landlord to construct. I would not characterize landlord’s unwanted remaking of the lobby as trifling in amount or trivial in effect—obviously, tenant entered into a long-term lease specifying something quite different to the tune of $2.75 million.

Finally, even if there were, under the new de minimis rule, no partial actual eviction in this case, there was (and still is) a trespass. And unlike the situation in Lounsbery, the trespass is permanent in nature rather than transitory. The majority brushes this aside with the comment that the trespass is de minimis, too, citing only our memorandum decision in Wing Ming Props. (U.S.A.) u Mott Operating Corp. (79 NY2d 1021 [1992]), a case that did not involve a lease or a trespass by a landlord. In any event, as Professor Randolph pointed out, “permitting the landlord to appropriate to itself space already leased to [the] tenant, no matter how small ... is inconsistent with the traditional values the common law has placed upon the right of possession” (Friedman on Leases at 29-16). Do we really want to say that a commercial tenant has no remedy whatsoever under New York law when a landlord usurps a portion of the leased premises so long as the tenant can still conduct its business despite the intrusion?

III.

Landlord and tenant are sophisticated commercial actors who executed a lease consisting of a six-page form, with deletions and two pages of insertions, and a 73-page rider, including exhibits. Throughout this lease, they delineated whether or to what extent rent abatement was an available remedy in particular potential instances of eviction.

The parties sometimes expressly agreed that tenant could not abate rent. For example, the lease permits landlord to enter the premises to make necessary repairs, replacements and improvements; in doing so, landlord may “take all nec[essary] materials and equipment into said premises without the same constituting] eviction nor shall the Tenant be entitled to any abatement of rent whil[e] work is in progress.” Similarly, tenant is not entitled to rent abatement for scaffolding in front of the premises during repairs.

In other places, the lease endorses rent abatement, but sets up a method for calculating the proper amount. For example, if landlord fails to meet “material repair obligations,” tenant agrees to accept a rent abatement “pro-rated based upon the area of the Premises which shall be unusable” and only when landlord’s breach renders at least 25% of the premises’ total area unusable. In exchange, the lease provides that where tenant notifies landlord of the problem and landlord fails to make these material repairs within one day, tenant may elect to “perform such repairs to the extent necessary to resume . . . normal movie theatre operations and [receive] reimbursement from Owner for . . . actual, reasonable, out-of-pocket costs.”

Finally, the parties agreed that if any of the premises’ vault space was revoked or diminished by a governmental authority or public utility, landlord “shall not [be s]ubject to any liability nor shall Tenant be entitled to any . . . [diminution or abatement of rent, nor shall such revocation, diminution [or Requisition be deemed constructive or actual eviction.” In other words, landlord and tenant negotiated a provision that supplants the otherwise applicable rule prescribed by Kernochan in this circumstance—i.e., that where “the act of a stranger by force of paramount title” causes an actual partial eviction, “the rent [would] be apportioned, and a recovery permitted for the value of the land retained” (221 NY at 373). The parties did not, however, negotiate an alternative to the common-law rule governing a partial actual eviction by act of the landlord, although they were clearly free to do so. If landlord was “dissatisfied with the rule of [Kernochan], the time to say so [was] at the bargaining table” (Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 382 [1986]).

IV

The majority has overruled an easy to understand, easy to apply bright-line rule in favor of a new de minimis rule that affords no predictability of outcome. Under Kernochan, it was very risky for a landlord to intrude on leased space in disregard of the tenant’s right to the whole of the property because the tenant might withhold rent. Now it is very risky for a tenant to withhold rent where the landlord wrongfully appropriates any portion of the leased premises because it is left up to the courts to determine whether the ouster is merely trifling in amount and trivial in effect. This determination will inevitably require expensive, protracted litigation with an uncertain resolution (cf. Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 324 [1979] [constructive eviction is a remedy “fraught with uncertainty” in part because “the reasonableness of the tenant’s action (is) subject to the vicissitudes of judicial review”]; see also Warren A. Estis and William J. Robbins, Actual Partial Evictions, NYLJ, Oct. 5, 2005, at 31, col 5 [the Appellate Division “in effect create(d) a de minimis exception to the Barash rule” in this case by creating a damages remedy, thereby posing the “question . . . whether this decision opens the (flood)gates for landlords to take space from tenants, leaving it to the courts to determine whether the taking was merely de minimis”]; 7-82 Warren’s Weed, New York Real Property § 82.22 [1] [2011] [the Appellate Division’s decision, which rejected “(t)he former rule announced by (Judge) Cardozo in (Kernochan),” has “raised considerable consternation in the landlord-tenant bar”]). At least until tenants have the opportunity to negotiate lease terms that account for the change in the law, they have no effective way to combat unauthorized takings by landlords.

We have always emphasized that stare decisis is especially important in cases involving contracts and property rights because

“[p]arties who engage in transactions based on prevailing law must be able to rely on the stability of such precedents. In business transactions, particularly, the certainty of settled rules is often more important than whether the established rule is better than another or even whether it is the ‘correct’ rule. This is perhaps true in real property more than any other area of the law, where established precedents are not lightly to be set aside” (Holy Props, v Cole Prods., 87 NY2d 130, 134 [1995], citing Maxton, 68 NY2d at 381; Eastern Consol. Props, v Adelaide Realty Corp., 95 NY2d 785, 788 [2000, Kaye, Ch. J., concurring] [“Stare decisis should be most stringently applied in cases involving contract and property rights. Indeed, considerations favoring stare decisis are at their acme in those cases”] [internal quotation marks omitted]).

Whatever the wisdom of casting Kernochan aside, the new de minimis rule should not apply in this case or, for that matter, to any litigation arising out of commercial leases entered into before today’s decision. Tenant, which justifiably relied on clear and long-standing New York law, now faces the prospect of paying landlord nine years’ worth of rent (perhaps escrowed, perhaps not), presumably along with 9% interest, as a consequence of its confidence in our fidelity to the “certainty of settled rules” governing property rights (Holy Props., 87 NY2d at 134). Additionally, the “concededly unaesthetic cross-bracing” (see majority op at 620), which creates the unbargained-for eyesore and obstruction, remains in place in the middle of the theater’s 15-foot-wide lobby.

We acknowledged in Gager v White (53 NY2d 475, 483-484 [1981]) that “when adherence to the traditional course” of applying a change in decisional law retrospectively is “strongly contra-indicated by powerful factors, including strong elements of reliance on law superseded by the new pronouncement, a court may direct that it operate prospectively alone” (emphasis added). This is surely the unusual case “where there has been such a sharp break in the continuity of law” that “retroactive application should be eschewed” (id. at 483-484).

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

Order affirmed, with costs.

      . Additionally, plaintiff requested compensatory damages in the amount of $1 million and punitive damages in the amount of $3 million. The landlord thereafter served the tenant with a Notice to Cure Default for failing to provide landlord with its books and records, failing to install a neutralization tank for spilled soda, installing new doors on the second floor theaters that did not comply with the building code and several other items. These additional claims are not a part of this appeal.

      . For this determination the court cited Cut-Outs, Inc. v Man Yun Real Estate Corp. (286 AD2d 258, 260 [1st Dept 2001], Iv denied 100 NY2d 507 [2003] [“plaintiff failed to prove that this encroachment constituted anything more than a de minimis taking of inessential space”]); Camatron Sewing Mach, v Ring Assoc. (179 AD2d 165, 168 [1st Dept 1992] [“contrary to defendants’ argument, the contemplated taking is not de minimis; it constitutes 25% of the 201.5 square feet store space used for its administrative office”]); and Paine & Chriscott v Blair House Assoc. (70 AD2d 571, 572 [1st Dept 1979] [“The space used by the pipes and conduits occupies .5% of the total square footage of the leased premises. To the extent that the pipes and conduits might constitute a partial eviction, this can easily be compensated fay money damages”]).

      . The dissent argues that we have “overruled an easy to understand, easy to apply bright-line rule in favor of a . . . rule that affords no predictability of outcome” (dissenting op at 631). We have, however, previously allowed for de minimis exceptions to bright-line rules in landlord/tenant cases (see e.g. Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327-328 [1979] [finding that a violation of the housing code does not automatically constitute a breach of the warranty of habitability as a code violation may be de minimis having no impact on habitability]), and find it appropriate to do so here.

      . The majority opinion is schizophrenic: my colleagues criticize the common-law rule for being harsh and outmoded because a tenant may abate rent for an exclusion or expulsion “no matter how small” (majority op at 623), while at the same time declaring that the common-law rule, in fact, mirabile dictu, never suspended the tenant’s obligation to pay rent where the unauthorized taking was “of such trifling amount that . . . the draconian remedy of total rent abatement [was] unjustified,” and did not “interfere in some, more than trivial, manner with the tenant’s use and enjoyment of the premises” (majority op at 622, 623). Put another way, in the majority’s view the common law has always sanctioned total rent abatement as a remedy for any unauthorized taking no matter how small—so long as not too small. This is, at the very least, confusing, if not downright contradictory. Of course, the majority’s formulation creates the rhetorical fig leaf by which my colleagues deny overruling our long-standing jurisprudence governing partial actual eviction.

      . The lease in this case, for example, has a term of 18 years, 9 months and 16 days: it commenced on March 1, 1998 and is set to expire on December 16, 2016. Landlord entered the premises to install the floor-to-eeiling steel cross-bracing in December 2002—i.e., about a quarter of the way through the lease term.

      . Tenant emphasized the intrusion in the lobby, although the cross-bracing took away another 12 square feet from an informal seating area on the theater’s second floor. Landlord installed the cross-bracing to support two additional stories, allowing increased rental income of an estimated $1 million a year.

      . In his view, the lower court erred by not continuing injunctive relief (Friedman on Leases at 29-16). Landlord apparently represented to Supreme Court that it would be feasible to remove the cross-bracing later if necessary (see 23 AD3d 100, 102 [1st Dept 2005]).