author: Smith, J.

text:
    [903 NE2d 1149, 875 NYS2d 828]
    The People of the State of New York, Respondent, v Judy Knox, Appellant. The People of the State of New York, Respondent, v Eliezer Cintron, Appellant. The People of the State of New York, Respondent, v Francis Jackson, Appellant.
    Argued January 8, 2009;
    decided February 17, 2009

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Lorca Morello and Steven Banks of counsel), for appellant in the first above-entitled action.
    The Sex Offender Registration Act provision classifying persons as convicted sex offenders based on convictions of offenses containing no element of sexual misconduct violates the state and federal principles of substantive due process and equal protection both on its face and as applied to appellant. (Doe v Pataki, 3 F Supp 2d 456; Daniels v Williams, 474 US 327; Youngberg v Romeo, 457 US 307; Lawrence v Texas, 539 US 558; Moore v East Cleveland, 431 US 494; Department of Agriculture v Murry, 413 US 508; Cleburne v Cleburne Living Center, Inc., 473 US 432; Romer v Evans, 517 US 620; Hernandez v Robles, 7 NY3d 338; Poe v Ullman, 367 US 497.)

      Robert M. Morgenthau, District Attorney, New York City (Dana Poole and Alan Gadlin of counsel), for respondent in the first above-entitled action.
    The Legislature’s determination that defendants guilty of kidnapping offenses against minors are subject to the registration provision of the Sex Offender Registration Act is entirely constitutional, and that requirement was properly applied to defendant. (People v Stuart, 100 NY2d 412; People v Windham, 10 NY3d 801; People v Charache, 9 NY3d 829; People v Nieves, 2 NY3d 310; People v Stevens, 91 NY2d 270; T. W. Oil v Consolidated Edison Co. of N.Y., 57 NY2d 574; Matter of Barbara C., 64 NY2d 866; People v Lewis, 5 NY3d 546; People v White, 53 NY2d 721; People v Cintron, 46 AD 3d 353.)

      Legal Aid Society, New York City (Mitchell J. Briskey and Steven Banks of counsel), for appellant in the second above-entitled action.
    I. The mandatory application of the Sex Offender Registration Act to Mr. Cintron, even though his 1989 conviction for unlawful imprisonment was wholly devoid of sexual conduct or motivation, denies him due process and equal protection of the law. (Wolff v McDonnell, 418 US 539; Mathews v Eldridge, 424 US 319; County of Sacramento v Lewis, 523 US 833; People v David W, 95 NY2d 130; Reno v Flores, 507 US 292; People v Onofre, 51 NY2d 476; Washington v Glucksberg, 521 US 702; Hernandez v Robles, 7 NY3d 338; Affronti v Crosson, 95 NY2d 713; Paul v Davis, 424 US 693.) II. The hearing court erred in refusing to consider a downward departure and only adjudicate Mr. Cintron a level one offender, where the Sex Offender Registration Act: Risk Assessment Guidelines do not take into account whether the acts underlying the conviction involved sexual conduct or motivation. (H & J Blits v Blits, 65 NY2d 1014; People v Williams, 56 NY2d 236; Doe v Pataki, 3 F Supp 2d 456; Matter of VanDover v Czajka, 276 AD2d 945; People

      v Inghilleri, 21 AD3d 404; United States v Scott, 270 F3d 632; People v Irizarry, 36 AD3d 473; People v Walker, 83 NY2d 455.)

      Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy, Joseph N. Ferdenzi and Rafael Curbelo of counsel), for respondent in the second above-entitled action.
    I. The State of New York could rationally require Eliezer Cintron to register under the Sex Offender Registration Act for his unlawful imprisonment of two children not his own, a crime that entailed a risk of sexual abuse. (People v Stevens, 91 NY2d 270; Doe v Pataki, 120 F3d 1263, 522 US 1122; People v Taylor, 42 AD3d 13, 9 NY3d 887; New York v Ferber, 458 US 747; Montgomery v Daniels, 38 NY2d 41; Dalton v Pataki, 5 NY3d 243, 546 US 1032; LaValle v Hayden, 98 NY2d 155; People v David W, 95 NY2d 130; Immediato v Rye Neck School Dist., 73 F3d 454, 519 US 813; Washington v Glucksberg, 521 US 702.) II. The Appellate Division correctly determined that the Supreme Court “properly exercised its discretion” in classifying Eliezer Cintron as a level three predicate sex offender. (People v Mackey, 49 NY2d 274; People v Kearns, 95 NY2d 816; People v Cadorette, 41 AD3d 808, 9 NY3d 810; Matter of VanDover v Czajka, 276 AD2d 945; Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891; People v Rivera, 5 NY3d 61, 546 US 984; People v Cruz, 30 AD3d 1042, 7 NY3d 712; People v Guarnan, 8 AD3d 545; People v Salaam, 174 Misc 2d 726; People v Santiago, 20 AD3d 885.)

      Office of the Appellate Defender, New York City (Margaret E. Knight, Richard M. Greenberg and Risa Gerson of counsel), for appellant in the third above-entitled action.
    I. Where there is no allegation that Francis Jackson’s conviction of attempted second degree kidnapping involved any sexual misconduct toward the child who was purportedly abducted, Mr. Jackson’s constitutional right to substantive due process was violated by his adjudication as a sex offender. (Wisconsin v Constantineau, 400 US 433; Wieman v Updegraff, 344 US 183; Paul v Davis, 424 US 693; People v David W, 95 NY2d 130; Morrissey v Brewer, 408 US 471; Doe v Pataki, 120 F3d 1263; Codd v Velger, 429 US 624; Wolff v McDonnell, 418 US 539; County of Sacramento v Lewis, 523 US 833; People v Bell, 3 Misc 3d 773.) II. It is a violation of equal protection to stigmatize Francis Jackson as a sex offender because the attempted kidnapping did not involve any allegation of sexual conduct directed at the child, and because many other nonsexual crimes involving children do not require registration under the Sex Offender Registration Act.
      (Hernandez v Robles, 7 NY3d 338; Cleburne v Cleburne Living Center, Inc., 473 US 432; People v David W., 95 NY2d 130; Doe v Pataki, 120 F3d 1263; People v Stevens, 91 NY2d 270; People v Walker, 81 NY2d 661.)

      Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy, Joseph N. Ferdenzi and Rafael Curbelo of counsel), for respondent in the third above-entitled action.
    The State of New York could rationally require Francis Jackson to register under the Sex Offender Registration Act for his attempted kidnapping of a child not his own, where he abducted the child in order to force the child’s mother to engage in sexual intercourse with others for his personal financial gain. (People v Stevens, 91 NY2d 270; Doe v Pataki, 120 F3d 1263, 522 US 1122; People v Cintron, 13 Misc 3d 833; People v Taylor, 42 AD3d 13, 9 NY3d 887; New York v Ferber, 458 US 747; Montgomery v Daniels, 38 NY2d 41; Dalton v Pataki, 5 NY3d 243, 546 US 1032; LaValle v Hayden, 98 NY2d 155; People v David W, 95 NY2d 130; Immediato v Rye Neck School Dist., 73 F3d 454.)
   OPINION OF THE COURT

Smith, J.

Defendants in these three cases committed, or attempted to commit, kidnapping and unlawful imprisonment. Their victims were children, and defendants were not their victims’ parents. We hold that the State did not violate defendants’ constitutional rights by compelling them to register as “sex offenders,” even though there was no proof that their crimes involved any sexual act or sexual motive.

I

Judy Knox approached a group of children in a park, grabbed the arm of an eight-year-old girl and tried to pull her away; her motive, as far as it can be inferred from the record, was to replace one of her own children, of whom she had lost custody. Knox pleaded guilty to attempted kidnapping.

Eliezer Cintron became angry when his girlfriend asked him to leave her apartment, and locked the girlfriend in that apartment, with her one- and two-year-old children, for several days. Cintron was convicted, among other things, of the unlawful imprisonment of each of the children.

Francis Jackson was the employer of a prostitute who tried to quit her job; he reacted by abducting the woman’s son and telling her he would kill the child if she did not continue to work for him. Jackson pleaded guilty to attempted kidnapping.

Supreme Court required all three defendants to register under the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.), despite their protests that they were not sex offenders as that term is commonly understood, and so could not constitutionally be subjected to sex offender registration. The Appellate Division affirmed Supreme Court’s orders (People v Knox, 45 AD3d 274 [2007]; People v Cintron, 46 AD 3d 353 [2007]; People v Jackson, 46 AD3d 324 [2007]). Defendants appeal to us as of right, pursuant to CPLR 5601 (b) (1), and we now affirm.

II

SORA defines “sex offender” to include “any person who is convicted of’ any of a number of crimes listed in the statute (Correction Law § 168-a [1]). Among the listed crimes are unlawful imprisonment (Penal Law §§ 135.05, 135.10) and kidnapping (Penal Law §§ 135.20, 135.25), “provided the victim of such . . . offense is less than seventeen years old and the offender is not the parent of the victim” (Correction Law § 168-a [2] [a] [i]). It is not disputed that these three defendants are within the definition of “sex offender” as the statute is written.

SORA requires all people included in this definition to register as sex offenders with the Division of Criminal Justice Services. Among the consequences of registration are: the registrant’s name, address, photograph and fingerprints remain on file with the Division (Correction Law § 168-b [1]); the registrant must verify his address annually to the Division, and must appear periodically at a law enforcement agency to provide a current photograph (Correction Law § 168-f [2]); local law enforcement agencies are notified when a registrant moves into their jurisdiction (Correction Law § 168-j); and any caller inquiring about a named individual will be told if that person is a registered sex offender (Correction Law § 168-p). In addition, registrants found to be at “moderate” or “high” risk of reoffending are listed in a directory available on the Internet, containing, among other information, their photographs, addresses, places of employment, and the nature of their crimes (Correction Law § 168-Z [6]; § 168-q).

Defendants claim that their rights to due process of law and equal protection of the laws under the federal and state constitutions (US Const Amend XIV; NY Const, art I, §§ 6, 11) are violated by requiring them to register under SORA, because the crimes underlying their registration involve no actual, intended or threatened sexual misconduct. The People acknowledge that there is no evidence of sexual misconduct in any of these cases; they say that the possibility of a sexual motive, or threatened sexual misconduct, cannot be ruled out. But even on the contrary assumption—on the assumption that there was no actual or potential sexual aspect in any of these crimes—we hold that defendants’ constitutional rights have not been violated. We find their equal protection claims to be obviously lacking in merit, and we analyze only the due process issues.

Defendants’ principal claim is, in essence, that the State has denied them substantive due process by officially attaching to them a label that is false or misleading. Defendants do not dispute that they have committed crimes which warrant finding them a danger to the public, and specifically to children; nor do they dispute that the State could constitutionally require them to register, to keep law enforcement authorities aware of their locations, to be identified to the public as dangerous, and to suffer the other statutory consequences of sex offender registration, apart from the name “sex offender.” Defendants assert that registrants under SORA are sometimes subjected to parole or other conditions that are inappropriate for those guilty of no sexual misconduct; for example, they say that some registrants are required to undergo therapy for psychosexual disorders. But the statute itself does not impose such requirements, and defendants do not complain of any parole conditions that were actually imposed on them. Their complaint is with the name under which they are registered. If the State required them to register, for example, as “child predators,” they would concededly have no constitutional complaint.

Thus, the interest defendants assert is in not having their admittedly serious crimes mischaracterized in a way that is arguably even more stigmatizing, or more frightening to the community, than a correct designation would be. We do not hold this interest to be constitutionally insignificant. On the contrary, we assume that defendants have a constitutionally-protected liberty interest, applicable in a substantive due process context, in not being required to register under an incorrect label (see Paul v Davis, 424 US 693, 701-710, 710 n 5 [1976] [in a procedural due process case, government-imposed stigma may be an infringement of liberty when more tangible interests are also affected]; Branch v Collier, 2004 WL 942194, *5-6, 2004 US Dist LEXIS 12386, *18-25 [ND Tex 2004] [in a procedural due process case, liberty interest in not being included in sex offender database]; Wedges/Ledges of Cal., Inc. v City of Phoenix, Ariz., 24 F3d 56, 62 [9th Cir 1994] [showing of protected liberty or property interest required in both substantive and procedural due process cases]).

But while defendants may be asserting a liberty interest, we conclude that they are not asserting a “fundamental right,” as due process cases use that term (see Immediato v Rye Neck School Dist., 73 F3d 454, 463 [2d Cir 1996] [a fundamental right is not “implicated every time a governmental regulation intrudes on an individual’s ‘liberty’ ”]). All infringements of liberty by the State must be tested under the due process clause, but where no fundamental right is infringed legislation is valid if it is rationally related to legitimate government interests (Washington v Glucksberg, 521 US 702, 728 [1997]; Hope v Perales, 83 NY2d 563, 577 [1994]). Fundamental rights are those “deeply rooted in this Nation’s history and tradition” (Glucksberg, 521 US at 721, quoting Moore v East Cleveland, 431 US 494, 503 [1977, plurality op]). They include the right to marry (Loving v Virginia, 388 US 1 [1967]); the right to have children (Skinner v Oklahoma ex rel. Williamson, 316 US 535 [1942]); the right to decide how one’s children will be educated (Meyer v Nebraska, 262 US 390 [1923]); and the right to engage in private consensual sexual activity (Lawrence v Texas, 539 US 558 [2003]). The right not to have a misleading label attached to one’s serious crime is not fundamental in this sense, and we therefore apply the rational basis test to defendants’ claims.

The governmental interest advanced by SORA is, of course, the protection of the community against people who have shown themselves capable of committing sex crimes. The particular provisions of SORA at issue here were obviously designed to protect children from such crimes. We find the challenged legislation rationally related to this legitimate governmental interest.

SORA was enacted in 1995, the year after the enactment of a federal statute, the Jacob Wetterling Act (42 USC § 14071), which conditioned certain federal funding on states’ enactment of legislation requiring the registration of sexually violent offenders and people who committed crimes against children. The Legislature sought, in enacting SORA, to comply with the Jacob Wetterling Act (Sponsor’s Mem, Bill Jacket, L 1995, ch 192, at 6), and in including the kidnapping and unlawful imprisonment of children by nonparents among the crimes requiring registration, SORA followed the federal statute’s requirements (see 42 USC § 14071 [a] [1] [A]; [3] [A]). As defendants point out, however, the Jacob Wetterling Act does not require attaching the label “sex offender” to the perpetrators of these crimes. That was the New York Legislature’s choice.

In making this choice, the Legislature could rationally have relied on the fact that a great many cases of kidnapping or unlawful imprisonment of children are indeed sex offenses. A study published in 1990 concluded that “about two-thirds or so of the Non-Family Abductions involved sexual assaults” (David Finkelhor et al., Missing, Abducted, Runaway, and Thrown-away Children in America, at 142 [May 1990]). A more recent study found the frequency to be lower, but still quite high: in 46% of the nonfamily abductions studied, the perpetrator had sexually assaulted the child (David Finkelhor et al., US Department of Justice, National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children, Nonfamily Abducted Children: National Estimates and Characteristics, at 10 [Oct. 2002]).

These statistics refer to what the reports’ authors identified as actual sexual assaults. But the Legislature could rationally have found that the statistics understate the problem. It could have found that sexual assault occurs in many cases where there is no direct evidence of it—in cases where the victim is killed, or remains missing, or is unable or unwilling to recount his or her ordeal. Indeed, in the case Congress chose as a prototype—the kidnapping of 11-year-old Jacob Wetterling—there is, as one of the Supreme Court opinions now before us points out (People v Cintron, 13 Misc 3d 833, 851 [2006]), no evidence of sexual assault; the perpetrator simply disappeared with Jacob, and neither has ever been found. The Legislature could also have found that, in many cases, the offender intends a sexual assault that is prevented only by the offender’s arrest or the escape of the victim. And the Legislature could have found that a child cut off from the safety of everyday surroundings is vulnerable to sexual abuse even if the offender’s sexual desires are not the motive of the crime. A kidnapper may plan to prostitute a child, or may seize an unplanned-for opportunity to do so.

In short, the Legislature had a rational basis for concluding that, in the large majority of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or are in danger of sexual assault. In light of this, it was plainly rational for the Legislature to provide that, as a general rule, people guilty of such crimes should be classified as “sex offenders.” We therefore reject as without merit the contention—made by Knox, but not the other two defendants in these cases—that the classification is unconstitutional on its face. The more substantial question is whether it is unconstitutional to apply the definition to the minority of cases—perhaps a small minority, but one in which we assume the present cases are included—in which there was neither a sexual assault nor any discernible risk of one. The Legislature might well have made such cases an exception to the requirement that the convicted people register as sex offenders, but we conclude that it acted rationally in not doing so.

The rational basis test is not a demanding one. We have repeatedly quoted the United States Supreme Court’s description of it as “a paradigm of judicial restraint” (FCC v Beach Communications, Inc., 508 US 307, 314 [1993]; see Affronti v Crosson, 95 NY2d 713, 719 [2001]; Port Jefferson Health Care Facility v Wing, 94 NY2d 284, 290 [1999]). There is a strong presumption that legislative enactments are constitutional (see Montgomery v Daniels, 38 NY2d 41, 54 [1975]), and a party contending otherwise bears the heavy burden of showing that a statute is “so unrelated to the achievement of any combination of legitimate purposes” as to be irrational (Affronti, 95 NY2d at 719, quoting Kimel v Florida Bd. of Regents, 528 US 62, 84 [2000]).

Defendants here cannot carry that burden. In deciding not to exclude defendants and others similarly situated from the category of “sex offenders,” the Legislature could have considered not only that cases where the term is unmerited are few, but also that the process of separating those cases from the majority in which it is justified is difficult, cumbersome and prone to error. It could rationally have found that the administrative burden, and the risk that some dangerous sex offenders would escape registration, justified a hard and fast rule, with no exceptions. Considering that no fundamental right is at stake— defendants are suffering no worse injustice than being called “sex offenders” instead of “child predators”—the Legislature could constitutionally provide that all those convicted of kidnapping or unlawfully imprisoning children not their own, or of attempting to commit those crimes, be conclusively deemed sex offenders.

In so deciding, we agree with the Illinois Supreme Court, which upheld in People v Johnson (225 Ill 2d 573, 870 NE2d 415 [2007]) an Illinois statute similar to SORA. Johnson contains a valuable analysis of the issue and review of the relevant authorities; it also contains the observation—with which we agree—that the opinion of Supreme Court in the Cintron and Jackson cases now before us is “particularly well reasoned” (225 Ill 2d at 588-589, 870 NE2d at 424). We have also considered, and respectfully disagree with, decisions in several other states reaching a contrary conclusion (State v Robinson, 873 So 2d 1205 [Fla 2004]; American Civ. Liberties Union of N.M. v City of Albuquerque, 139 NM 761, 772, 137 P3d 1215, 1226 [2006]; State v Reine, 2003 WL 77174, 2003 Ohio App LEXIS 52 [2003], cause dismissed 99 Ohio St 3d 1549, 795 NE2d 686 [2003]).

Ill

In the Cintron case, another issue must be decided. While Knox and Jackson were adjudicated level one (low risk) sex offenders, Cintron was found to be level three (high risk). He acknowledges that the designation is supported by a numerical calculation made in accordance with guidelines promulgated by the Board of Examiners of Sex Offenders (see People v Johnson, 11 NY3d 416 [2008]), but argues that the courts below abused their discretion in not departing from the guideline level, since the crimes that gave rise to the adjudication did not involve sex. We find no abuse of discretion.

Cintron has a long record of violent conduct, including sexual violence. Before the offenses involved in the present case (which occurred in 1987 and for which Cintron was incarcerated until 2006), he had been convicted of reckless endangerment for setting fire to a former girlfriend’s house; attempted first degree assault, for attacking with a bottle someone who intervened in a fight between him and his girlfriend; and sexual misconduct, in a case where he had been charged with forcing a 16-year-old girl to have intercourse. A case summary prepared by the Board of Examiners of Sex Offenders reports that in 2000, while Cintron was incarcerated, “he was the subject of a serious Tier III Sex Offense.” It is, no doubt, ironic that the crimes leading to Cintron’s registration apparently had no sexual element, but we cannot say on this record that it was an abuse of discretion to conclude that there is a high risk he will commit a sex crime in the future.

IV

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

Judges Ciparick, Graffeo, Read, Pigott and Jones concur; Chief Judge Lippman taking no part.

In each case: Order affirmed, without costs.

       The Jacob Wetterling Act will be superseded, effective July 1, 2009, by the Adam Walsh Child Protection and Safety Act of 2006 (42 USC § 16901 et seq.). The differences between the two federal statutes are not relevant to this case.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [903 NE2d 1163, 875 NYS2d 842]
    In the Matter of County of Erie et al., Appellants, v State of New York Public Employment Relations Board et al., Respondents.
    Argued January 13, 2009;
    decided February 19, 2009

      POINTS OF COUNSEL

      Jaeckle Fleischmann & Mugel, LLP, Buffalo (Sean P Better and Elizabeth Fox-Solomon of counsel), for appellants.
    I. The Correction Law preempts a public employer’s duty to bargain regarding the classification and assignment of inmates to housing in local correctional facilities. (Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Schenectady Police Benevolent Assn., v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of Johnson v Joy, 48 NY2d 689; Matter of Howard v Wyman, 28 NY2d 434.) II. The classification and assignment of inmates to housing is committed to the sole discretion of the Erie County Sheriff and is not a mandatory subject of bargaining. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 75 NY2d 619.) III. The Erie County Sheriffs decision to implement a new inmate classification system pursuant to directives of the State Commission of Correction is a fundamental policy decision over which the Sheriff is not required to bargain. (Matter of Board of Educ. of City School

      Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Lippman v Public Empl. Relations Bd., 296 AD2d 199, 99 NY2d 503.)

      David P. Quinn, Albany, for State of New York Public Employment Relations Board and another, respondents.
    I. Appellants misstate the effect of the Public Employment Relations Board’s decision and order, and misapprehend their bargaining obligations under the Taylor Law. II. The Public Employment Relations Board’s determination was not affected by an error of law, arbitrary, capricious or an abuse of discretion. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370; Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of New York, 78 NY2d 143; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480.) III. The Appellate Division properly ordered the Public Employment Relations Board’s remedial order enforced. (Matter of New York City Tr. Auth. [New York State Pub. Empl. Relations Bd.], 154 AD2d 680; Matter of State of N.Y. Dept. of Correctional Servs. v Kinsella, 220 AD2d 19.)

      Ellen M. Mitchell, Albany, and Nancy E. Hoffman for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Erie County Unit of Local 815, and another, respondents.
    I. The Public Employment Relations Board’s order should be granted deference and confirmed as no conflict between statutes exists. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480.) II. The Correction Law does not preempt the Civil Service Law mandate to negotiate the transfer of union bargaining unit work as the Correction Law is silent as to the guarding of prisoners. (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Patrolmen’s Benevolent Assn. of City of N. Y, Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.)

      Reden & O’Donnell, LLP, Buffalo (Robert J. Reden and Terry M. Sugrue of counsel), for Teamsters Local 264 of International Brotherhood of Teamsters, Warehousemen, and Chauffeurs, and another, respondents.
    I. The Public Employment Relations Board has the authority to find Taylor Law violations and grant appropriate remedies. (Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of Hewlett-Woodmere Union Free School Dist. v New York State Pub. Empl. Relations Bd., 232 AD2d 560; Matter of Saratoga Springs City School Dist. [New York State Pub. Empl. Relations Bd.], 68 AD2d 202, 47 NY2d 711; Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 251 AD2d 583, 92 NY2d 819.) II. The standard of review of a Public Employment Relations Board (PERB) decision is very limited; PERB’s construction of the Taylor Law must be confirmed unless irrational. (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Board of Educ. for City School Dist. of City of Buffalo v Buffalo Teachers Fedn., 89 NY2d 370; Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v State of New York, 78 NY2d 143; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73.) III. The Public Employment Relations Board’s order imposes no duty other than the statutory duty to bargain a decision to subcontract exclusive bargaining unit work. (Matter of Hearst Corp. v Clyne, 50 NY2d 707.) IV. The Correction Law does not preempt negotiations regarding the transfer of exclusive bargaining unit work. (Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315.) V. Public policy underlying the Correction Law does not preclude negotiations regarding the transfer of exclusive bargaining unit work. (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563;
      Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.) VI. Whether the classification and assignment of inmates is a mandatory subject of negotiations is immaterial to the Public Employment Relations Board’s decision and order. VII. The decision to transfer guarding responsibilities does not constitute a fundamental policy decision implementing the Erie County Sheriffs mission to classify and house inmates. (Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, Orange County Local 836, City of Newburgh Unit v New York State Pub. Empl. Relations Bd., 273 AD2d 626; Matter of State of N.Y. Dept. of Correctional Servs. v Kinsella, 220 AD2d 19.)
   OPINION OF THE COURT

Pigott, J.

Respondents Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Erie County Unit of Local 815 (CSEA) and Teamsters Local 264 of International Brotherhood of Teamsters, Warehousemen, and Chauffeurs (Teamsters) filed improper practice charges against petitioners County of Erie and Erie County Sheriff for allegedly transferring exclusive bargaining unit work to nonunit employees in violation of Civil Service Law § 209-a (1) (d), which provides that “[i]t shall be an improper practice for a public employer or its agents deliberately ... to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees.”

Petitioners argue on this appeal that the Appellate Division’s confirmation of the determination made by the New York State Public Employment Relations Board (PERB) that petitioners committed an improper employment practice should be reversed. We agree.

I.

CSEA is the authorized collective bargaining representative for correction officers exclusively charged with guarding sentenced inmates incarcerated at the Erie County Correctional Facility. Teamsters is the authorized collective bargaining representative of deputy sheriffs who are exclusively charged with guarding presentenced and pretrial detainees (collectively referred to as unsentenced inmates) housed at the Erie County Holding Center and the “Annex,” a space adjoining the Correctional Facility which holds the overflow of inmates from the Holding Center. Petitioners do not dispute that correction officers and deputy sheriffs have exclusively guarded sentenced and unsentenced inmates, respectively, since 1995.

In August 2000, the Erie County Legislature voted to transfer control of the Correctional Facility from the Erie County Executive to the Erie County Sheriff, a measure county residents approved in a referendum, leaving the Sheriff in control of both detention facilities. The guarding duties of correction officers and deputy sheriffs remained unchanged.

In early 2002, the Sheriff notified the unions that, due to this change in mission, it was necessary to implement a new classification system for the housing of inmates. The Sheriff initially prepared a unified classification plan that assigned housing based on risk without consideration of adjudication status, resulting in the commingling of sentenced and unsentenced inmates, but later withdrew that plan after resistance from the unions. In its place, the Sheriff implemented separate classification systems for the Correctional Facility and the Holding Center in order to maintain the separation of sentenced and unsentenced inmates.

Subsequently, the State Commission of Correction conducted an evaluation of the Holding Center and cited the Sheriff for overcrowding at that facility while the Correctional Facility had vacancies. The Commission found that the cause of the overcrowding was the Sheriffs failure to use a unified classification system for both facilities. In order to alleviate the overcrowding, the Commission directed the Sheriff to utilize the criteria set forth in Correction Law § 500-b (7) (a) and (b) and 9 NYCRR part 7013. In response, the Sheriff promulgated a single classification instrument that resulted in the commingling of sentenced with unsentenced inmates at both facilities, and correction officers and deputy sheriffs being assigned to guard both.

The unions thereafter filed improper practice charges alleging that petitioners violated Civil Service Law § 209-a (1) (d) by unilaterally transferring exclusive bargaining unit work to non-unit employees. The charges were consolidated and, after a hearing, an Administrative Law Judge ruled in favor of the unions and ordered that petitioners cease and desist in the assignment of sentenced inmates to the deputy sheriffs and the assignment of unsentenced inmates to correction officers. After the ALJ’s decision was affirmed by PERB, petitioners commenced this CPLR article 78 proceeding, challenging as arbitrary and capricious PERB’s determination that their change in mission defense was inapplicable.

Supreme Court transferred the matter to the Appellate Division which confirmed PERB’s determination, dismissed the petition and granted the unions’ counterclaims seeking enforcement of the decision (43 AD3d 1311 [2007], lv granted 10 NY3d 708 [2008]). We now reverse and grant the petition.

II.

A public employer’s decisions are not bargainable as terms and conditions of employment where “they are inherently and fundamentally policy decisions relating to the primary mission of the . . . employer” (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 669 [1990], citing Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46 [1974]). Although such policy decisions are exempt from bargaining, the impact of those decisions is not (see West Irondequoit Teachers Assn., 35 NY2d at 51; see also Matter of Levitt v Board of Collective Bargaining of City of N.Y., Off. of Collective Bargaining, 79 NY2d 120, 127 [1992]).

In West Irondequoit Teachers Assn. (35 NY2d 46 [1974]), this court upheld a PERB determination that found the fixing of class size not to be a term or condition of employment (and therefore not negotiable), but rather a matter of educational policy. That fact alone, however, did not preclude the teachers’ association from bargaining over the impact of the policy on the teachers’ working conditions (id. at 49-50). Although we concluded in that case that PERB “articulated a rational basis for its determination in the [school board’s] favor” (id. at 52), the same cannot be said, in this instance, about PERB’s determination that the Sheriff was required to first negotiate with the unions before implementing a classification policy satisfactory to the Commission.

Correction Law § 500-b directs that the Sheriff “shall exercise good judgment and discretion” and “take all reasonable steps to ensure that the assignment of persons” to housing units “fosters the safety, security and good order of the jail” while concomitantly ensuring that necessary precautions are made for the safety and welfare of those in custody (Correction Law § 500-b [7] [a] [l]-[2]; see 9 NYCRR 7013.1, 7013.2). As part of those responsibilities, the Sheriff is charged with “implementing] and maintaining] a formal and objective system for the consistent classification of all inmates” (9 NYCRR 7013.1), requiring “a procedure for determining an inmate’s appropriate housing assignment which utilizes a point scale, decision tree or other method capable of quantifiable analysis or computation” (9 NYCRR 7013.2 [b]). Factors that the Sheriff must consider include, among other things, criminal history, prior escapes, mental/medical illness, history of hostile relationships with other inmates, and any other information the Sheriff deems necessary to ensure inmate safety (see Correction Law § 500-b [7] [b]; 9 NYCRR 7013.8 [c]). Significantly, none of those factors takes into account the adjudication status of the inmate or the allocation of work among collective bargaining units.

Given the statutory requirement that the Sheriff implement and maintain a formal and objective classification system, we conclude that PERB’s determination that petitioners committed an improper practice by unilaterally transferring unit work to nonunit employees is not entitled to deference (see Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315, 320 [1994], citing Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47-48 [1988]). Once having implemented such a system, the impact of that decision, if any, upon the contracts between the parties is subject to bargaining (see Matter of City School Dist. of City of New Rochelle [New Rochelle Fedn. of Teachers, Local #280, AFT, AFL-CIO], 4 PERB ¶ 3060 [1971]; see also West Irondequoit Teachers Assn., 35 NY2d at 49-50; Matter of Amalgamated Tr. Union, Local 1342 [Niagara Frontier Tr. Metro Sys., Inc.], 36 PERB ¶ 3036 [2003]).

Accordingly, the judgment of the Appellate Division should be reversed, with costs, the petition granted, the August 9, 2006 determination of PERB annulled and the counterclaims for enforcement of PERB’s determination dismissed.

Judges Ciparick, Graffeo, Read, Smith and Jones concur; Chief Judge Lippman taking no part.

Judgment reversed, etc.


author: Graffeo, J.

text:
    [903 NE2d 1167, 875 NYS2d 846]
    Paula Fasso et al., Respondents, and Independent Health Association, Inc., Intervenor-Appellant, v Ralph J. Doerr, M.D., Respondent.
    Argued January 15, 2009;
    decided February 24, 2009

      POINTS OF COUNSEL

      McGee & Gelman, Buffalo (Michael R. McGee of counsel), for intervenor-appellant.
    I. A subrogor cannot control, cancel, destroy or otherwise prejudice an equitable subrogation claim of a subrogee. (Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; ELRAC, Inc. v Ward, 96 NY2d 58; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366; Sisson v Hassett, 155 Misc 667; Allstate Ins. Co. v Stein, 1 NY3d 416; Allstate Ins. Co. v Mazzola, 175 F3d 255; Humbach v Goldstein, 229 AD2d 64; Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200.) II. Contrary to the public policy set forth by this Court, the Appellate Division’s decision virtually eliminates equitable subrogation claims. (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Teichman v Community Hosp. of W.

      Suffolk, 87 NY2d 514; Allstate Ins. Co. v Mazzola, 175 F3d 255; Primax Recoveries Inc. v Carey, 247 F Supp 2d 337; Blue Cross & Blue Shield of N.J., Inc. v Philip Morris, Inc., 113 F Supp 2d 345; Allstate Ins. Co. v Stein, 1 NY3d 416.) III. The make whole rule is a priority of recovery rule, not an element of an equitable subrogation cause of action. (Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Harding v Onibokun, 14 Misc 3d 790; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37.) IV. Equitable subrogation does not prejudice the rights of the subrogor. (Winkelmann v Excelsior Ins. Co., 85 NY2d 577.) V A tortfeasor does not have standing to assert the make whole rule. (Allstate Ins. Co. v Mazzola, 175 F3d 255; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366.) VI. The trial court’s denial of Independent Health Association, Inc.’s motion for a mistrial was an abuse of discretion. VII. The IAS court did not have the authority to dismiss Independent Health Association, Inc.’s complaint sua sponte. (Blunt v Northern Oneida County Landfill [NOCO], 145 AD2d 913; Myung Chun v North Am. Mtge. Co., 285 AD2d 42; Balogh v H.R.B. Caterers, 88 AD2d 136; Gibbs v Kinsey, 120 AJD2d 701; Hoeffner v John F. Frank, Inc., 302 AD2d 428; Fischer v Mead Johnson Labs., 41 AD2d 737; Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345; Guggenheimer v Ginzburg, 43 NY2d 268.)

      Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for Paula Fasso and another, respondents. I.
    Independent Health Association, Inc.’s equitable subrogation claim is barred by the “make whole rule,” as applied in light of the insurer’s obligation to do nothing that would prejudice Paula and Michael Fasso’s substantial rights. (Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514; Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Oakes v Patel, 23 AD3d 1023; Kaczmarski v Suddaby, 9 AD3d 847, 3 NY3d 738; Omiatek v Marine Midland Bank, N.A., 9 AD3d 831, 3 NY3d 738; ELRAC, Inc. v Ward, 96 NY2d 58; USF&G v Maggiore, 299 AD2d 341; Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363.) II. Given Independent Health Association, Inc.’s election to participate in this action as a passive intervenor, it was not entitled to a mistrial when plaintiffs settled their action. (Matter of Bales, 93 AD2d 861, 60 NY2d 554; Matter of Sakow, 21 AD3d 849, 7 NY3d 706; Matter of Mott v Ransom, 210 AD2d 929; Town of Orangetown v Magee, 88 NY2d 41; Freidus v Eisenberg, 71 NY2d 981; T.W. Oil v Consolidated Edison Co. of N.Y., 57 NY2d 574; Spodek v Lasser Stables, 89 AD2d 892; Pugliese v D’Estrada,
      259 AD2d 743; Scarola v St. Vincent’s Med. Ctr. of Richmond, 154 AD2d 364; Allstate Ins. Co. v Stein, 1 NY3d 416.) III. The trial court properly dismissed Independent Health Association, Inc.’s complaint in intervention. (Blunt v Northern Oneida County Landfill [NOCO], 145 AD2d 913; Balogh v H.R.B. Caterers, 88 AD2d 136.) IV. The Court of Appeals should bar health carriers’ intervention in their insureds’ personal injury actions. (Oakes v Patel, 23 AD3d 1023; Kaczmarski v Suddaby, 9 AD3d 847, 3 NY3d 738; Omiatek v Marine Midland Bank, N.A., 9 AD3d 831, 3 NY3d 738; Humbach v Goldstein, 229 AD2d 64, 91 NY2d 921; Berry v St. Peter’s Hosp. of City of Albany, 250 AD2d 63; Halloran v Don’s 47 W. 44th St. Rest. Corp., 255 AD2d 206; Marshall v 426-428 W. 46th St. Owners, Inc., 33 AD3d 444; Winkelmann v Excelsior Ins. Co., 85 NY2d 577.)

      Roach, Brown, McCarthy & Gruber, PC., Buffalo (Joseph V. McCarthy and Elizabeth G. Adymy of counsel), for Ralph J. Doerr, M.D., respondent.
    I. The Fourth Department’s order is consistent with the governing principles of law. (Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366; ELRAC, Inc. v Ward, 96 NY2d 58; Allstate Ins. Co. v Stein, 1 NY3d 416; Winkelmann v Excelsior Ins. Co., 85 NY2d 577; USF&G v Maggiore, 299 AD2d 341; Berry v St. Peter’s Hosp. of City of Albany, 250 AD2d 63; Humbach v Goldstein, 229 AD2d 64; Omiatek v Marine Midland Bank, N.A., 9 AD3d 831.) II. Independent Health Association, Inc.’s interpretation of the “make whole” rule and its application to this case is unsupported and unavailing. (Avraham v Allied Realty Corp., 8 AD3d 1079; Killeen v Crosson, 284 AD2d 926; Matter of Van Wormer v Leuersee, 87 AD2d 942; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366; Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200.) III. The dismissal of the intervenor’s complaint was upon motion by Ralph Doerr, M.D. (Gibbs v Kinsey, 120 AD2d 701.)

      Law Offices of Michael A. Haskel, Mineola (Michael A. Haskel, Miranda W. Turner and Brandon W. Zlotnick of counsel), for Medical Society of the State of New York, amicus curiae.
    I. The public interest will be adversely affected by any adoption of Independent Health Association, Inc.’s position. (Humbach v Gold-stein, 229 AD2d 64, 91 NY2d 921; Berry v St. Peter’s Hosp. of City of Albany, 250 AD2d 63; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81; Kaczmarski v Suddaby, 9 AD3d 847; En

      right v Eli Lilly & Co., 77 NY2d 377; Bryant v New York City Health & Hosps. Corp., 93 NY2d 592.) II. Independent Health Association, Inc.’s position is inequitable. (Humbach v Goldstein, 229 AD2d 64; Kaczmarski v Suddaby, 9 AD3d 847.) III. Independent Health Association, Inc.’s position violates the “make whole rule.” (Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; G. B. Seely’s Son v Fulton-Edison, 52 AD2d 575.) IV. Independent Health Association, Inc. should not have been permitted to intervene. (Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366; Dombroski v Samaritan Hosp., 47 AD3d 80; Kaczmarski v Suddaby, 9 AD3d 847; Allstate Ins. Co. v Stein, 1 NY3d 416; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514.)

      Greenberg Traurig, LLP, Albany (Harold N. Iselin and Stephen M. Buhr of counsel), for New York Health Plan Association, Inc., amicus curiae.
    I. This Court should reverse the decision of the court below. (Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366; ELRAC, Inc. v Ward, 96 NY2d 58; Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514; Blue Cross & Blue Shield of N.J., Inc. v Philip Morris, Inc., 113 F Supp 2d 345; Winkelmann v Excelsior Ins. Co., 85 NY2d 577; Berry v St. Peter’s Hosp. of City of Albany, 173 Misc 2d 214, 250 AD2d 63; Nossoughi v Federated Dept. Stores, 175 Misc 2d 585.) II. The question of whether to eliminate the right of health plans to pursue equitable subrogation is more appropriately addressed by the Legislature rather than this Court. (Teichman v Community Hosp. of TV Suffolk, 87 NY2d 514.)
   OPINION OF THE COURT

Graffeo, J.

When a person suffers personal injuries because of the wrongdoing of another and the injured party’s health insurer pays for medical treatment, a cause of action for equitable subrogation accrues to the health insurer, allowing the insurer to seek recoupment of its expenditures. The issue before us is whether the injured party and the tortfeasor can agree to a settlement that extinguishes the insurer’s subrogation rights. We conclude that the subrogation claim in this case cannot be discontinued without the subrogee’s consent.

I

Plaintiff Paula Fasso received medical services from defendant Ralph Doerr, M.D., in 1996. She subsequently developed complications that required her to undergo a liver transplant. Approximately two years later, Mrs. Fasso and her husband commenced this action against Dr. Doerr and the hospital where he treated her, alleging that Dr. Doerr had committed medical malpractice. Mrs. Fasso required a second liver transplant in 2003, resulting in her medical and surgical expenses totaling approximately $780,000, all of which were paid by her health insurance carrier, Independent Health Association, Inc. (IHA).

In 2005, IHA moved to intervene in the Fassos’ medical malpractice action pursuant to CPLR 1013 in order to assert an equitable subrogation claim against Dr. Doerr for reimbursement of the payments made on Mrs. Fasso’s behalf. IHA represented that it would “not unduly delay” the litigation or “prejudice the substantial rights of any party” if permitted to intervene. Neither plaintiffs nor defendants opposed IHA’s motion and Supreme Court therefore allowed IHA to become a party to the case.

The Fassos eventually sought summary judgment dismissing IHA’s complaint for equitable subrogation. They contended that IHA could not expect to receive reimbursement from Dr. Doerr because Mrs. Fasso’s damages exceeded the $2 million of malpractice coverage available to Dr. Doerr. Hence, the Fassos claimed that Mrs. Fasso could not be “made whole” in light of the coverage limits of the doctor’s malpractice policies. Supreme Court denied the Fassos’ motion to dismiss IHA’s complaint.

Before the trial began, IHA informed Supreme Court that it would rely on the Fassos’ proof of Dr. Doerr’s alleged negligence and would present only one witness to establish the medical expenses. Mrs. Fasso was the first witness to testify and, the following morning, the attorneys for plaintiffs and the doctor advised the court that a settlement had been reached. Under the terms of the agreement, plaintiffs would receive $900,000, Dr. Doerr would not admit wrongdoing and IHA’s equitable subrogation claim would be dismissed on the basis that Mrs. Fasso was not “made whole” since the settlement payment was less than her actual damages. IHA, which had not participated in the negotiations or agreed to the dismissal of its cause of action against Dr. Doerr, did not object to plaintiffs receiving the monetary payment. But it did contest the dismissal of its equitable subrogation claim because, after Dr. Doerr paid the $900,000 settlement, there remained $1.1 million in potential insurance coverage—an amount greater than the sum IHA sought in subrogation. IHA also moved for a mistrial so that it could obtain its own witnesses and evidence to prove Dr. Doerr’s negligence.

Supreme Court denied IHA’s request for a mistrial and approved the settlement between the Fassos and Dr. Doerr. Since Mrs. Fasso was not being paid the full amount of her damages, the court held that IHA’s subrogation claim could not survive and sua sponte dismissed IHA’s complaint. The Appellate Division affirmed (46 AD3d 1358 [2007]). We granted leave (10 NY3d 707 [2008]) and now reverse.

II

It is well established that when an insurer pays for losses sustained by its insured that were occasioned by a wrongdoer, the insurer is entitled to seek recovery of the monies it expended under the doctrine of equitable subrogation (see e.g. Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200, 206 [2004]; Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]; Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366, 372 [1990]; Connecticut Fire Ins. Co. v Erie Ry. Co., 73 NY 399, 402 [1878]). Equitable subrogation is premised on two related concepts. First, that the party who causes injury or damage should be required to bear the loss by reimbursing the insurer for payments made on behalf of the injured party. Second, that the injured party should not recover twice for the same harm—once from its insurer and again from the wrongdoer (see Winkelmann v Excelsior Ins. Co., 85 NY2d at 581). Therefore, if an injured party receives monies from the tortfeasor attributable to expenses that were paid by its insurer, the insurer may recoup its disbursements from its insured; but when the wrongdoer does not pay damages for an insured’s medical expenses, generally the insurer, as subrogee, has been allowed to seek recovery directly from the tortfeasor (see e.g. Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 521-523 [1996]).

There is, however, an important limitation on recovery under the doctrine of equitable subrogation. If “the sources of recovery ultimately available are inadequate to fully compensate the insured for its losses, then the insurer—who has been paid by the insured to assume the risk of loss—has no right to share in the proceeds of the insured’s recovery from the tortfeasor” (Winkelmann, 85 NY2d at 581). In other words, the insurer may seek subrogation against only those funds and assets that remain after the insured has been compensated. This designation of priority interests—referred to as the “made whole” rule—assures that the injured party’s claim against the tortfeasor takes precedence over the subrogation rights of the insurer.

The Fassos and Dr. Doerr contend that the “made whole” rule precludes IHA from pursuing equitable subrogation against the doctor in this case because plaintiffs settled for less than the total damages caused by Dr. Doerr’s alleged negligence. This position misconstrues the made whole principle. If the recovery the injured party receives, whether determined by settlement or verdict, is greater than the wrongdoer’s assets and available insurance coverage, there is nothing left for the insurer to execute its subrogation rights against and the made whole rule prevents the insurer from sharing in the insured’s judgment or recovery. But that is not the situation here. In this case, the made whole doctrine does not present an obstacle to the insurer’s right to seek recoupment from the tortfeasor because the settlement between the Fassos and Dr. Doerr left a potential source of recovery—$1.1 million in remaining insurance coverage. Consequently, the made whole rule did not mandate dismissal of IHA’s equitable subrogation claim merely because the Fassos decided to accept a settlement figure that did not completely compensate them for the full extent of their damages.

The Fassos and Dr. Doerr alternatively maintain that their agreement to extinguish IHA’s equitable subrogation cause of action is binding on IHA because an insurer stands in the shoes of its insured and acquires only those rights that the insured possesses. This argument misapprehends the nature of the equitable subrogation doctrine. The right to subrogation “accrue[s] upon payment of the loss” by the insurer (Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d at 372) and it generally cannot be imperiled by the insured (see e.g. Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 50 [1925]; Aetna Cas. & Sur. Co. v Bekins Van Lines Co., 67 NY2d 901, 903 [1986]). Once an insurer has paid a claim and the tortfeasor knows or should have known that a right to subrogation exists, the wrongdoer and the insured cannot agree to terminate the insurer’s claim without its consent and such an agreement cannot be asserted as a defense to the insurer’s cause of action (see Ocean Acc. & Guar. Corp., 240 NY at 50-51; see generally Connecticut Fire Ins. Co. v Erie Ry. Co., 73 NY at 402-403; cf. Weinberg v Transamerica Ins. Co., 62 NY2d 379, 384, 384 n 4 [1984]). Hence, the provision of the settlement between the Fassos and Dr. Doerr that purported to bar IHA’s equitable subrogation claim cannot be enforced and does not prevent IHA from proceeding to obtain reimbursement from Dr. Doerr for the payments it made for Mrs. Fasso’s medical expenses as a result of the doctor’s alleged negligence. We therefore reverse and remit to Supreme Court for further proceedings.

Ill

Although we conclude that plaintiffs could not extinguish IHA’s equitable subrogation cause of action without its consent, we find it necessary to comment on the procedural posture of this case. CPLR 1013 allows a party to request permission to intervene in a civil proceeding “when the person’s claim or defense and the main action have a common question of law or fact.” In exercising its discretion to grant or deny intervention, a trial court must “consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party” (id.).

New York courts have disagreed on the issue of whether it is permissible to grant intervention to health insurers of injured parties in tort cases. The predominant view is that the participation by insurers in settlement negotiations creates conflicts of interest with plaintiffs, who may wish to accept settlements that do not allocate sufficient monies to cover all or part of the medical expenses, and discourages or prevents settlements since insurers will be inclined to object to anything less than full recovery of their expenditures (see Berry v St. Peter’s Hosp. of City of Albany, 250 AD2d 63 [3d Dept 1998, Carpinello, J.], lv dismissed 92 NY2d 1045 [1999]; see also Marshall v 426-428 W. 46th St. Owners, Inc., 33 AD3d 444 [1st Dept 2006]; Humbach v Goldstein, 229 AD2d 64 [2d Dept 1997], lv dismissed 91 NY2d 921 [1998]). Taking a contrary view, the Fourth Department has permitted discretionary intervention (see e.g. Oakes v Patel, 23 AD3d 1023 [4th Dept 2005]; Omiatek v Marine Midland Bank, N.A., 9 AD3d 831 [4th Dept 2004], lv dismissed 3 NY3d 738 [2004]).

Clearly, intervention can create an adversarial posture between a plaintiff/insured and its insurer because neither has an incentive to consider the interests of the other, especially where the potential damages exceed the available sources of recovery (see generally Siegel, NY Prac § 180, at 309-310 [4th ed]). The injured party’s goal is to maximize recovery without regard to whether its insurer recoups any monies it expended for the plaintiffs medical bills; the insurer’s objective is to reclaim as much of the money it paid as possible regardless of whether its insured has a desire to settle the case rather than proceed to trial. Thus, allowing an insurer to intervene inevitably complicates settlement negotiations over the tortfeasor’s insurance coverage.

In this case, neither the Fassos nor Dr. Doerr opposed IHA’s motion to intervene under CPLR 1013 so the issue of whether intervention was properly granted to IHA is not before us. We note, however, that the question of permissive intervention raises competing policy concerns that are deserving of legislative consideration. Certainly, plaintiffs and defendants need to weigh the benefits and detriments of settlement offers with knowledge of the consequences. But in light of spiraling health care costs and their effect on the availability and affordability of medical insurance, “[h]ealth insurers in this state have increasingly invoked the subrogation doctrine in an effort to protect limited plan assets” (Hourihan and Zeitounzian, The Prognosis for Recovery: Health Insurance Subrogation, 80 NY St BJ 22, 22 [May 2008]). As a result, there has emerged an uncertainty regarding how and when health insurers should assert their subrogation claims.

The Legislature considered some of these issues when it codified CPLR 4545, which deals with the collateral source rule. That statute provides that a verdict that includes past medical expenses should be reduced by the amounts paid by an insurer for the plaintiffs medical treatments (see CPLR 4545)—to avoid double recovery by a plaintiff—but the Legislature did not address the procedures and means of recovery for the equitable subrogation rights of insurers. Moreover, the collateral source doctrine applies only to verdicts, not settlements, and nothing in the language or legislative history of CPLR 4545 indicates that the Legislature intended to alter the established rules of equitable subrogation. Consequently, the Legislature may wish to reexamine the concept of permissible intervention under CPLR 1013 as it applies to personal injury actions involving a health insurer’s claim of equitable subrogation.

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

Judges Ciparick, Read, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order reversed, etc.

      . IHA could have instituted its own action directly against Dr. Doerr, but by the time it became involved in this case, the statute of limitations had run. Instead, IHA decided to request intervention on the basis that an “intervenor’s claim will be deemed to have been interposed as of the filing date of the petition ... if the proposed intervenor’s claim and that of the original petitioner are based on the same transaction or occurrence” and “the proposed intervenor and the original petitioner [are] so closely related that the original petitioner’s claim would have given the respondent notice of the proposed intervenor’s specific claim so that the imposition of the additional claim would not prejudice the respondent” (Matter of Greater N.Y. Health Care Facilities Assn. v DeBuono, 91 NY2d 716, 720-721 [1998]). If intervention had not been available, IHA’s remedy would have been to seek reimbursement from any portion of the Fassos’ recovery that was attributable to the medical expenses paid by IHA.

      . IHA’s representations mirrored the language of the permissible intervention statute, CPLR 1013.

      . Supreme Court also granted the hospital’s motion for summary judgment and the Fassos discontinued their action against the hospital.

      . There is also a contract-based theory of subrogation but that is not at issue in this appeal.

      . There is a wealth of precedent supporting this rule (see e.g. Allstate Ins. Co. v Mazzola, 175 F3d 255, 260-261 [2d Cir 1999]; Allied Mut. Ins. Co. v Heiken, 675 NW2d 820, 828-829 [Iowa 2004]; Primax Recoveries Inc. v Carey, 247 F Supp 2d 337, 345 [SD NY 2002]; State Farm Fire & Cas. Co. v Pacific Rent-All, Inc., 90 Haw 315, 330, 978 P2d 753, 768 [1999]; Westchester Fire Ins. v Heddington Ins. Ltd., 883 F Supp 158, 162 [SD Tex 1995], affd 84 F3d 432 [5th Cir 1996]; National Ins. Underwriters v Piper Aircraft Corp., 595 F2d 546, 551 [10th Cir 1979]; Sentry Ins. Co. v Stuart, 246 Ark 680, 685-686, 439 SW2d 797, 799-800 [1969]; Home Ins. Co. v Hertz Corp., 71 Ill 2d 210, 214-215, 375 NE2d 115, 118 [1978]; Nationwide Mut. Ins. Co. v Canada Dry Bottling Co., 268 NC 503, 507-508, 151 SE2d 14, 17 [1966]; Aetna Cas. & Sur. Co. v Associates Transps., Inc., 512 P2d 137, 142, 1973 OK 62 [1973]; Hospital Serv. Corp. of R.I. v Pennsylvania Ins. Co., 101 RI 708, 718, 227 A2d 105, 112 [1967]; Calvert Fire Ins. Co. v James, 236 SC 431, 439, 114 SE2d 832, 836-837 [1960]; Buckner, Annotation, Rights and Remedies of Property Insurer as Against Third-Person Tortfeasor Who Has Settled With Insured, 92 ALR2d 102 [collecting authorities]; 16 Couch on Insurance 3d § 224:179, at 224-203; Windt, 1 Insurance Claims and Disputes 5th § 3:7 n 9 [collecting authorities]).

      . We also do not find merit to the alternative contention that IHA’s assertions in its motion to intervene gave the Fassos permission to waive the equitable subrogation cause of action.

      . In light of this conclusion, IHA’s argument that Supreme Court erred in dismissing the equitable subrogation cause of action sua sponte is academic.

      . Another problem relates to the burden of litigation expenses. When an insurer is allowed to intervene, it usually remains in the background of the case, imposing on the insured the duty and cost of proving the defendant’s wrongdoing.


author: Read, J.

text:
    [904 NE2d 826, 876 NYS2d 690]
    In the Matter of Andrew S. Criscolo et al., Appellants, v Nicholas J. Vagianelis, as Director of the Division of Classification and Compensation of the Department of Civil Service, et al., Respondents.
    Argued January 14, 2009;
    decided February 24, 2009

      POINTS OF COUNSEL

      Edward J. Muck, Albany, and William P. Seamon for appellants.
    Respondents have not articulated a rational basis for revising the classification standards for the titles of education supervisor, plant superintendent and assistant industrial superintendent to require such employees to preside as hearing officers over tier III inmate disciplinary hearings. Therefore, the Appellate Division’s memorandum and order upholding the revised classification standards was in error and should be reversed by this Court. (Matter of Montero v Lum, 68 NY2d 253; Matter of O’Reilly v Grumet, 308 NY 351; City of Newburgh v Potter, 168 AD2d 779; Cove v Sise, 71 NY2d 910; Matter of Haubert v Governor’s Off. of Empl. Relations, 284 AD2d 879; Matter of Gajewski v Angello, 301 AD2d 721; Matter of C.S.E.A. v County of Dutchess, 6 AD3d 701; Matter of Roche v Wagner, 34 Misc 2d 920, 18 AD2d 647, 12 NY2d 885, 314; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Montauk Improvement v Proccacino, 41 NY2d 913.)

      Andrew M. Cuomo, Attorney General, Albany (Julie Sheridan, Barbara D. Underwood, Andrew D. Bing and Peter H. Schiff of counsel), for respondents.
    The extensive analysis that the Division of Classification and Compensation of the State Department of Civil Service conducted provided a rational basis to revise the classification standards at issue to include the duty of conducting inmate disciplinary hearings. (Matter of Benson v Cuevas, 272 AD2d 764, 95 NY2d 760; Matter of Association of Secretaries to Justices of Supreme & Surrogate’s Cts. in City of N.Y. v Office of Ct. Admin, of State of N.Y., 75 NY2d 460; Cove v Sise, 71 NY2d 910; Matter of Woodward v Governor’s Off. of Empl. Relations, 279 AD2d 725; Matter of Carolan v Schechter, 7 NY2d 980; Matter of Niebling v Wagner, 12 NY2d 314; Matter of Gavigan v McCoy, 37 NY2d 548; Matter of Kuppinger v Governor’s Off. of Empl. Relations, 203 AD2d 664; Matter of Collins v Governor’s Off. of Empl. Relations, 211 AD2d 1001; Matter of Loehr v Governor’s Off. of Empl. Relations, 3 AD3d 653.)
   OPINION OF THE COURT

Read, J.

Inmates incarcerated in prisons operated by the New York State Department of Correctional Services (DOCS) must comply with standards of conduct (7 NYCRR part 270), which are enforced through issuance of inmate misbehavior reports in those instances where a rule violation endangers life, health, security or property (7 NYCRR 251-3.1). These reports are subject to review at an administrative hearing at which a hearing officer determines the truth of the allegations and imposes penalties accordingly. There are three levels of these administrative hearings—tier I (violation hearing), tier II (disciplinary hearing) and tier III (superintendent’s hearing)—with differing requirements for each (7 NYCRR 270.3; 7 NYCRR parts 252, 253, 254).

Tier III hearings, which address the most serious inmate misbehavior implicating the most severe punishment (7 NYCRR 251-2.2 [b] [3]), may be conducted by the superintendent of the correctional facility, the deputy superintendent, a captain, a commissioner’s hearing officer employed by DOCS’s central office, or “some other employee” designated by the correctional facility’s superintendent “in his or her discretion” (7 NYCRR 254.1). On this appeal, we conclude that it was not irrational for the Division of Classification and Compensation (the Division) of the New York State Department of Civil Service (DCS) to revise the classification standards for the civil service titles of education supervisor, plant superintendent (B and C) and assistant industrial superintendent (A and B) so as to require DOCS employees in these titles to conduct tier III hearings at a superintendent’s behest.

I.

DOCS employees occupying positions in these civil service titles began conducting tier III hearings at least as early as the late 1990s; however, this particular work was not listed in the classification specifications and duties for the titles at that time. Consequently, in 1998, the New York State Public Employees Federation (PEF), the union representing the DOCS employees, grieved the assignment of tier III hearing work to them. In 2001, additional grievances were filed to protest this practice. Also in 2001, the Appellate Division concluded that there was no rational basis for DOCS’s decision to assign tier III hearing work to an employee in the title of senior correction counselor. This was because “presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment simply [could not] be said to be reasonably related to or viewed as a logical extension of’ the employee’s primary duty of counseling inmates, as set out in the Division’s specifications for this position (see Matter of Woodward v Governor’s Off. of Empl. Relations, 279 AD2d 725, 727 [3d Dept 2001]).

In August 2006, the Governor’s Office of Employee Relations (GOER) sustained the 1998 and 2001 grievances, and directed DOCS to “cease and desist from” assigning tier III hearing work to employees in the civil service titles at issue here. GOER acted upon the Division’s determination that conducting tier III hearings constituted out-of-title work for these employees “based upon . . . review of the subject grievance[s] within the context of those applicable New York State Classification Standards in effect when the grieved work was performed and the grievancefs were] filed” (emphasis added). In making its determination, the Division recognized that the tier III hearing work assigned to these DOCS employees was routine in nature, and did not make up the bulk of their job duties and responsibilities, or consume a great deal of their working time; and that the employees received training and written materials with step-by-step instructions.

In conjunction with its consideration of the 1998 and 2001 grievances, the Division engaged in what it describes as a long overdue and comprehensive analysis and evaluation of the civil service titles in question, the classification specifications for which had not been updated for at least 25—and in some cases as many as 40—years. As part of this analysis and evaluation, the Division examined the tier III hearing process as well as the nature of informal hearings conducted at other executive branch agencies; reviewed and compared the specific job duties of employees (both attorneys and non-attorneys) who conduct informal hearings; and specifically looked at the job duties of an inmate disciplinary hearing officer (IDHO) (M-l), a civil service title unique to DOCS. IDHOs, who must be licensed attorneys, preside over the most complex tier III hearings, and also carry out specialized managerial, policymaking and appellate review functions. There are only 10 IDHOs statewide, all of whom work out of DOCS’s central office.

The Division concluded that “within the universe of administrative adjudicatory hearings, Tier 3 Hearings are, in general, less formal, more routine, and less complex.” Inmates are not represented by counsel, have limited rights to call and may not cross-examine witnesses. Briefs and memoranda of law are generally not submitted; decisions are usually issued in a short, standardized form. Observing that “[n]ot all Tier 3 Hearings are of equivalent complexity,” the Division found that, in practice, DOCS “limit[ed] the assignment of non-attorney personnel to those less complex Tier 3 Hearings which are considered to be ‘routine’, without involved, difficult, or unusual questions of fact or law, and which will not set precedent.” Further, “DOCS non-attorney personnel . . . only conducted] Tier 3 Hearings after appropriate training by an [IDHO] or other appropriate DOCS personnel”; their decisions were subject to administrative and judicial review.

Finally, the Division identified “a core set” of knowledge, skills, and abilities that every non-attorney conducting a routine tier III hearing needed to possess. The Division concluded that the requisite knowledge, skills and ability were general in nature, consisting of, for example, knowledge of the standards of inmate behavior, and the ability to understand written instructions, guidelines and procedures and to communicate clearly both orally and in writing. As a result, many DOCS employees were qualified, with training, to conduct a tier III hearing, including employees holding positions in the civil service titles at issue in this litigation.

In October 2006 the Division amended the classification specifications for these titles to bring them into line with its analysis and evaluation. The following task was added under the heading “ILLUSTRATIVE DUTIES”: “May assist with, conduct, and/or make determinations on inmate disciplinary hearings.” In implementing this new classification specification, the Division, in practice, adopted limitations identified in the 1998 and 2001 grievances: non-attorney DOCS employees were only to conduct routine tier III hearings after being trained and with proper supervision, and this work was not to be their primary duty.

In January 2007, petitioners commenced this CPLR article 78 proceeding in Supreme Court, alleging that the Division’s revision of their civil service titles to include tier III hearing work was arbitrary and capricious because they were not educated or trained to carry out this task, which, in any event, conflicted with the primary functions and duties of their positions. They also contended that the revision was contrary to GOER’s disposition of the 1998 and 2001 grievances, and the Appellate Division’s decision in Woodward. According to petitioners, tier III hearing work should be confined to employees occupying positions as hearing officers (grade 25), a civil service title found in other state agencies, or to IDHOs. Both titles require admission to the New York State Bar as a job qualification.

On May 15, 2007, Supreme Court dismissed the petition. In light of the limited standard of judicial review, the court concluded that “[t]he addition of the duty of conducting inmate disciplinary hearings to the disputed job titles is not wholly irrational or without rational basis considering the other duties of those titles” (19 Misc 3d 1118[A], 2007 NY Slip Op 52550[U], *6 [2007]). The Appellate Division, with two Justices dissenting, subsequently affirmed (Matter of Criscolo v Vagianelis, 50 AD3d 1283 [3d Dept 2008]).

Noting the highly deferential standard of review and the “comprehensive study and analysis” that “undergirded” the Division’s revisions, the Appellate Division was “unpersuaded” that these classification determinations could be “characterized as wholly arbitrary or without any rational basis” (id. at 1285). Further, the court distinguished Woodward on the ground that the conflict faced by senior correction counselors—between counseling inmates and weighing their credibility in a tier III hearing that might result in punishment—was not present in the civil service titles at issue. The dissenters faulted the Division for “utilizing] reclassification as a means of validating out-of-title work” (id. at 1286), citing Matter of Gavigan v McCoy (37 NY2d 548, 552 [1975]), Matter of Niebling v Wagner (12 NY2d 314, 319 [1963]), and Matter of Mandle v Brown (4 AD2d 283, 286 [1st Dept 1957], affd 5 NY2d 51 [1958]). Petitioners appealed to us as of right (CPLR 5601 [a]), and we now affirm.

II.

As the lower courts recognized, “ [a] dministrative determinations concerning position classifications are . . . subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis” (Cove v Sise, 71 NY2d 910, 912 [1988]). Here, the Division demonstrated a rational basis for adding tier III hearing duties to the civil service titles at issue.

Before revising the classification standards, the Division analyzed the tier III hearing process; the knowledge, skills and abilities required to conduct these hearings; and the knowledge, skills and abilities required for the identified civil service titles, each of which requires the performance of administrative, supervisory, and managerial tasks, good communication skills, and decisionmaking on issues of consequence to DOCS, including the operation of the physical plant and industrial and educational programs. We cannot say that the Division acted irrationally when it decided that tier III hearing work was no more complex than duties already encompassed within these titles, and that employees in these titles were qualified to conduct tier III hearings.

As petitioners point out, the Appellate Division in Woodward (involving a title no longer at issue in this litigation) and the Division and GOER in their disposition of the 1998 and 2001 grievances found that tier III hearing duties comprised out-of-title work. These decisions were, however, based on the content of the classification specifications then in effect for the titles at issue. The Division may always rework classification specifications to reflect management’s needs and available resources; a prior finding of out-of-title work does not foreclose the Division from revising a classification specification to include this work, so long as its decision to do so is rationally based. And here, there was a demonstrable need for suitable non-attorney hearing officers at DOCS: while there are thousands of tier III hearings that need to be scheduled and completed on a timely basis each year, many of them run-of-the-mine and lacking precedential value, the number of IDHOs is limited. Given these realities, DOCS must assign tier III hearing work to employees who possess—or could successfully obtain with proper instruction and guidance—the knowledge, skills, and abilities necessary to carry out this task.

Finally, Gavigan, Niebling, and Mandle do not call for a different result. The New York Constitution and the Civil Service Law require that promotions be made after competitive examination (see NY Const, art V, § 6; Civil Service Law §§ 44, 52). In these cases, we pointed out that “reclassification may not be employed as a device to sanction the performance of out-of-title duties and thereby avoid the requirement of a competitive examination for promotion” (Niebling, 12 NY2d at 319; see also Gavigan, 37 NY2d at 552 [“one may not deliberately manipulate a reclassification simply by first imposing or by assuming new duties and responsibilities, and then thereby avoid the necessity for filling vacancies by promotion by reclassifying the added duties and responsibilities” (quoting Mandle, 4 AD2d at 286 [emphasis added])]). In Gavigan, we explained why, despite the general flexibility given to agencies in reclassifying civil service positions, certain reclassifications have been held invalid:

“For over 75 years it has been the avowed purpose of civil service laws to promote the good of the public service; and it should be readily apparent that the well-established rule we enforce today (as it has been for decades) is designed to and does safeguard the graded positions of civil service and thus insulates their status from political manipulation” (37 NY2d at 552-553 [emphasis added and citations omitted]).

In short, Gavigan, Niebling and Mandle stand for the proposition that an employee cannot achieve a higher grade or salary by being assigned or engaging in out-of-title work because this would violate the fundamental civil service tenet of advancement through competitive examination. That is not what happened here. Petitioners’ titles have not been reclassified to a higher grade or salary. Indeed, the Division explicitly found that the tier III hearing duties at issue did not constitute out-of-grade work (i.e., a de facto promotion without competitive examination); specifically, the Division concluded that the level of compensation appropriate for performance of these duties was equivalent to job titles allocated at salary grade 18, whereas petitioners’ civil service titles were allocated to salary grade 18 or above. As a result, the revised classification standards in this case do not implicate the constitutional and statutory limits on reclassification, which are grounded in the New York Constitution’s requirement of merit selection for civil service positions.

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

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order affirmed, with costs.


author: Jones, J.

text:
    [904 NE2d 813, 876 NYS2d 677]
    The People of the State of New York, Respondent, v Fritz Elysee, Appellant.
    Argued January 7, 2009;
    decided February 17, 2009

      POINTS OF COUNSEL

      Warren S. Landau, New York City, and Lynn W.L. Fahey for appellant.
    I. When the People seized and tested blood samples medical staff had drawn to treat appellant, admission of the test results on these samples violated the physician-patient privilege and denied appellant due process. (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525; Dillenbeck v Hess, 73 NY2d 278; Williams v Roosevelt Hosp., 66 NY2d 391; People v Sinski, 88 NY2d 487; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; People v Decina, 2 NY2d 133; Matter of City Council of City of N.Y. v Goldwater, 284 NY 296; Buffalo Loan, Trust & Safe Deposit Co. v Knights Templar & Masonic Mut. Aid Assn., 126 NY 450; Edington v Mutual Life Ins. Co. of N.Y., 67 NY 185; Doe v Community Health Plan— Kaiser Corp., 268 AD2d 183.) II. The court denied appellant due process and a fair trial when it denied the joint request of defense counsel and the prosecutor to charge criminally negligent homicide as a lesser included offense of second-degree manslaughter, when there was a reasonable view of the evidence that appellant had acted negligently rather than recklessly. (People v Glover, 57 NY2d 61; People v Devonish, 6 NY3d 727; People v Butler, 84 NY2d 627; People v Martin, 59 NY2d 704; People v Green, 56 NY2d 427; People v Henderson, 41 NY2d 233; People v Heide, 84 NY2d 943; People v Stanfield, 36 NY2d 467; People v Helliger, 96 NY2d 462; People v Harris, 81 NY2d 850.)

      Charles J. Hynes, District Attorney, Brooklyn (Diane R. Eisner and Leonard Joblove of counsel), for respondent.
    I. The trial court properly admitted evidence of defendant’s blood alcohol content that was derived from a blood specimen drawn in the course of medical treatment. In any event, any error in the admission of that evidence was harmless. (Matter of Drew v Schenectady County, 88 NY2d 242; Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657; Matter of Grand Jury Proceedings [Doe], 56 NY2d 348; Madden v Creative Servs., 84 NY2d 738; Dillenbeck v Hess, 73 NY2d 278; Williams v Roosevelt Hosp., 66 NY2d 391; Cabell v Markham, 148 F2d 737; Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525; People v Sinski, 88 NY2d 487; Buffalo Loan, Trust & Safe Deposit Co. v Knights Templar & Masonic Mut. Aid Assn., 126 NY 450.) II. Defendant’s claim that criminally negligent homicide should have been submitted to the jury as a lesser-included offense of reckless manslaughter is partly unpreserved for appellate review, and in any event is meritless. (People v Barney, 99 NY2d 367; People v Van Norstrand, 85 NY2d 131; People v Green, 56 NY2d 427; People v Register, 60 NY2d 270, 466 US 953; People v Donohue, 123 AD2d 77; People v Rykaczewski, 121 AD2d 409; People v Morton, 100 AD2d 637; People v Monroe, 90 NY2d 982; People v Robinson, 36 NY2d 224; People v Henderson, 41 NY2d 233.)
   OPINION OF THE COURT

Jones, J.

On the morning of December 25, 2003, defendant automobile driver was involved in a four-vehicle car accident in Brooklyn, New York. As a result, a passenger in a pickup truck was killed and several other persons, including defendant, were injured. At approximately 5:30 a.m., defendant was taken to Kings County Hospital where, upon his arrival and in accordance with the hospital’s routine practice for treating trauma victims, blood samples were drawn solely for treatment purposes (5:30 a.m. samples).

Pursuant to a court order issued by Supreme Court at approximately 1:50 p.m. that day, defendant was compelled to submit to a chemical test of the alcohol or drug content of his blood (blood alcohol test) (see Vehicle and Traffic Law § 1194 [3]; CPL 690.35, 690.36). To effect this order, a registered nurse, in the presence of a New York City police officer, drew a second set of blood samples at approximately 2:50 p.m. (2:50 p.m. samples) (see Vehicle and Traffic Law § 1194 [4] [a]). On December 26, 2003, the 2:50 p.m. samples were forwarded by the New York City Police Department to Dr. Elizabeth Marker, a forensic toxicologist employed by the New York City Office of Chief Medical Examiner, to perform a court-ordered test in order to determine defendant’s blood alcohol level at the time of the accident. On December 29, 2003, a search warrant for the seizure of the 5:30 a.m. samples from the hospital was issued and executed pursuant to CPL 690.10 (4). The New York City Police Department, in turn, submitted the 5:30 a.m. samples to Dr. Marker.

Prior to trial, defendant brought an omnibus motion to, among other things, controvert the search warrant and suppress the results of the blood alcohol test performed on the 5:30 a.m. samples, arguing that the seizure of his blood, pursuant to CPL 690.10, violated the physician-patient privilege defined by CPLR 4504. The court denied the motion to controvert, finding the facts alleged in the search warrant application sufficient to establish probable cause to believe that defendant was operating a motor vehicle while under the influence of alcohol. The court also denied that branch of the omnibus motion which sought to suppress the results of the blood alcohol test performed on the 5:30 a.m. samples. The court determined that CPLR 4504 “has no application to vials of blood, which were the objects of the search warrant.”

At defendant’s jury trial, Dr. Marker testified that she tested both the 2:50 p.m. and 5:30 a.m. samples. Regarding the 2:50 p.m. samples, she noted that the results revealed defendant’s blood alcohol “concentration [to be] .05 gram percent.” Dr. Marker opined that it is scientifically possible, through reverse extrapolation, to reliably determine what a person’s blood alcohol content was at an earlier time based upon a later blood alcohol test when certain assumptions are made; e.g., assuming that the alcohol in defendant’s system was fully absorbed at the time of the accident, going back a period of 10 hours from the time the 2:50 p.m. blood samples were taken, defendant’s blood alcohol level range at the time of the accident would have been “between 0.20 [gram] percent or 0.25 [gram] percent.” Dr. Marker further testified that the 5:30 a.m. samples revealed a blood alcohol concentration of .23 gram percent and .21 gram percent, respectively. She opined that these results were consistent with, and substantiated, the results of the reverse extrapolation analysis of the 2:50 p.m. samples. Put another way, the test of the two separate blood samples reached nearly identical results.

At the charge conference, both the People and defense asked the court to charge criminally negligent homicide as a lesser included offense of second degree manslaughter. The court refused, concluding that there was no reasonable view of the evidence to support the charge of criminally negligent homicide.

The jury convicted defendant of manslaughter in the second degree, assault in the second degree, assault in the third degree, and driving while intoxicated. Defendant appealed from Supreme Court’s judgment of conviction. This appeal brought up for review that portion of defendant’s omnibus motion seeking to suppress physical evidence and the court’s refusal to charge criminally negligent homicide.

The Appellate Division affirmed the judgment, holding that a blood specimen taken from a patient by a medical professional is not “information” protected by the physician-patient privilege as defined in CPLR 4504 (a) and, accordingly, is subject to seizure (49 AD3d 33 [2007]). The Appellate Division also held that “the trial court properly refused to charge the jury with criminally negligent homicide as a lesser-included offense of manslaughter in the second degree” because there was no reasonable view of the evidence which would support a finding that the lesser offense but not the greater offense was committed by the defendant (id. at 49). A Judge of this Court granted defendant leave to appeal (10 NY3d 840 [2008]) and we now affirm.

We agree with the lower courts that defendant’s motion to suppress the 5:30 a.m. samples was properly denied, though we need not decide whether CPLR 4504 applies to these samples. Pursuant to Vehicle and Traffic Law § 1194 (2) (a), “[a]ny person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of . . . breath, blood, urine, or saliva, for the purpose of determining the alcoholic and/or drug content of the blood” under certain prescribed conditions. In addition, such chemical tests can also be compelled by court order under Vehicle and Traffic Law § 1194 (3) when, among other circumstances,

“a person other than the operator was killed or suffered serious physical injury . . . ; and
“such person operated the vehicle in violation of any subdivision of section eleven hundred ninety-two of this article . . . and . . .
“has been placed under lawful arrest; and . . .
“has refused to submit to a chemical test ... or is unable to give consent to such a test” (§ 1194 [3] [b] [1], [2] [a]; [3], [4]).

Therefore, even if these samples were privileged, under the facts and circumstances of this case, the privilege was overcome when the police officers executed the court order issued pursuant to Vehicle and Traffic Law § 1194 (3).

Here, it is illogical to conclude that a blood sample taken at 5:30 a.m. cannot be seized pursuant to a properly issued court order, merely because the order issued after the blood was actually drawn by an authorized person. Furthermore, inasmuch as the Vehicle and Traffic Law authorizes a chemical test under the circumstances of this case, and a court order issued compelling “that the defendant shall submit to a chemical test of the alcohol or drug content of his blood,” the seizure of the earlier blood sample was in accord with the statute.

We disagree with defendant’s argument that Supreme Court erred in not charging criminally negligent homicide as a lesser included offense of second degree manslaughter. A person who fails to perceive a substantial and unjustifiable risk by reason of his intoxication acts recklessly rather than with criminal negligence (see People v Donohue, 123 AD2d 77, 81 [3d Dept 1987]; People v Van Dusen, 89 AD2d 649 [3d Dept 1982]). Thus, given the overwhelming evidence of defendant’s intoxication, we agree with the lower courts that there was no reasonable view of the evidence which would support a finding that the defendant committed criminally negligent homicide (see CPL 300.50 [1]; People v Barney, 99 NY2d 367, 371 [2003]).

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

Judges Ciparick, Graffeo, Read, Smith and Pigott concur; Chief Judge Lippman taking no part.

Order affirmed.

       CPLR 4504 (a) provides, in pertinent part, that
      “Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”