author: Ciparick, J. G.B. Smith, J. (dissenting in part).

text:
    [827 NE2d 265, 794 NYS2d 282]
    Wende C. et al., Appellants, v United Methodist Church, New York West Area, Defendant, and Western New York Conference of United Methodist Church et al., Respondents.
    Argued January 4, 2005;
    decided February 22, 2005

      POINTS OF COUNSEL

      Christina A. Agola, Rochester, for appellants.
    I. The Appellate Division erred in affirming the decision of the trial court that granted Pastor T. summary judgment sua sponte on the claim of sexual battery. (Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Lui v Park Ridge at Terryville Assn., 196 AD2d 579; Ferrante v American Lung Assn., 90 NY2d 623; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; S.J. Capelin Assoc, v Globe Mfg. Corp., 34 NY2d 338; Prozeralik v Capital Cities Communications, 82 NY2d 466; Joshua S. v Casey, 206 AD2d 839.) II. Claims for breach of fiduciary duty are not barred by the First Amendment. (Employment Div., Dept, of Human Resources of Or. v Smith, 494 US 872; Cantwell v Connecticut, 310 US 296; Avitzur v Avitzur, 58 NY2d 108, 464 US 817; First Presbyt. Church of Schenectady v United Presbyt.

      Church in US. of Am., 62 NY2d 110, 469 US 1037; Park Slope Jewish Ctr. v Congregation B’nai Jacob, 90 NY2d 517; Jones v Wolf, 443 US 595; Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; Jones v Trane, 153 Misc 2d 822; Sanders v Casa View Baptist Church, 134 F3d 331, 898 F Supp 1169.) III. Clergy malpractice is distinguishable from breach of fiduciary duty. (Penato v George, 52 AD2d 939; Martinelli v Bridgeport R.C. Diocesan Corp., 196 F3d 409; Sanders v Casa View Baptist Church, 134 F3d 331; Schmidt v Bishop, 779 F Supp 321; Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110; Sharon B. v Reverend S., 244 AD2d 878; Jones v Trane, 153 Misc 2d 822; Roy v Hartogs, 81 Misc 2d 350; Reynold v United States, 98 US 145.) IV The Appellate Division erred in granting summary judgment to defendants Western New York Conference of the United Methodist Church, David Lubba, and Bishop Hae-Jong Kim for negligent hiring, supervision and retention. (Curtis v City of Utica, 209 AD2d 1024; Kirkman v Astoria Gen. Hosp., 204 AD2d 401, 84 NY2d 811, 85 NY2d 858; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159.)

      Trevett, Lenweaver & Salzer, PC., Rochester (James C. Gocker and A. Katherine Piccola of counsel), for Bishop Hae-Jong Kim, respondent.
    I. The Appellate Division properly affirmed the decision of the trial court in granting Pastor T. summary judgment sua sponte on the claim of sexual battery. (Alvarez v Prospect Hosp., 68 NY2d 320; Peters v Frontier Hot-Dip Galvanizing, 222 AD2d 1113; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Hart v Child's Nursing Home Co., 298 AD2d 721; Sharon B. v Reverend S., 244 AD2d 878; Doe v Roe, 192 AD2d 1089; Sanders v Rosen, 159 Misc 2d 563; Coopersmith v Gold, 172 AD2d 982.) II. Plaintiffs’ unpleaded claim for breach of a fiduciary duty by a clergy member is barred by the First Amendment, and the Appellate Division properly found that Bishop Hae-Jong Kim did not breach a fiduciary duty to plaintiffs. (Weil, Gotshal & Manges v Fashion Boutique of Short Hills, 10 AD3d 267; Proskauer Rose v Asia Elees. Holding Co., 2 AD3d 196; Murray Hill Invs. v Parker Chapin Flattau & Klimpl, 305 AD2d 228; Turk v Angel, 293 AD2d 284; InKine Pharm. Co. v Coleman, 305 AD2d 151; Daniels v Lebit, 299 AD2d 310; Leather v United States Trust Co. of N.Y., 279 AD2d 311; Tyborowski v Cuddeback & Onofry, 279 AD2d 763; Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; Ehrens v Lutheran Church-Mo. Synod, 269 F Supp 2d 328.) III. The Appellate Division properly granted summary judgment in favor of Bishop Hae-Jong Kim because he cannot be vicariously liable for Pastor T.’s alleged conduct. (Judith M. v Sisters of Charity Hosp., 93 NY2d 932; Jones v Weigand, 134 App Div 644; Paul J.H. v Lum, 291 AD2d 894; Koren v Weihs, 190 AD2d 560; Noto v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 160 AD2d 656, 76 NY2d 714; Joshua S. v Casey, 206 AD2d 839.) IV The Appellate Division properly found that plaintiffs’ claim for breach of fiduciary duty was, in essence, a claim for clergy malpractice which is not cognizable in New York. (Schmidt v Bishop, 779 F Supp 321; Joshua S. v Casey, 206 AD2d 839; Trott v Merit Dept. Store, 106 AD2d 158; Masters v Becker, 22 AD2d 118; Mazzaferro v Albany Motel Enters., 127 AD2d 374; Rafferty v Arnot Ogden Mem. Hosp., 140 AD2d 911; Jones v Trane, 153 Misc 2d 822.) V The Appellate Division properly found no issues of material fact exist as to plaintiffs’ negligent hiring, retention and/or supervision claims. (Honohan v Martin’s Food of S. Burlington, 255 AD2d 627; Rodriguez v United Transp. Co., 246 AD2d 178; Paul J.H. v Lum, 291 AD2d 894; Karaduman v Newsday, Inc., 51 NY2d 531.)

      Bond, Schoeneck & King, PLLC, Syracuse (Jonathan B. Fellows and Brian J. Butler of counsel), for Western New York Conference of the United Methodist Church and another, respondents.
    I. The majority below properly held that the relationship between Pastor T. and Wende C. is not actionable as a battery. (Sanders v Rosen, 159 Misc 2d 563; Coopersmith v Gold, 172 AD2d 982.) II. The majority below properly held that appellants’ unpleaded claim for breach of fiduciary duty is indistinguishable from the unrecognized cause of action for clergy malpractice. (Lightman v Flaum, 97 NY2d 128; Schmidt v Bishop, 779 F Supp 321; Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; Dausch v Rykse, 52 F3d 1425; Proskauer Rose v Asia Elees. Holding Co., 2 AD3d 196; Murray Hill Invs. v Parker Chapin Flatteau & Klimpl, 305 AD2d 228; Turk v Angel, 293 AD2d 284; InKine Pharm. Co. v Coleman, 305 AD2d 151; Daniels v Lebit, 299 AD2d 310; Leather v United States Trust Co. of N.Y., 279 AD2d 311.) III. The majority below properly held that the Western New York Conference of the United Methodist Church and David Lubba are not vicariously liable to plaintiffs. (Schmidt v Bishop, 779 F Supp 321; Karaduman v Newsday, Inc., 51 NY2d 531; Paul J.H. v Lum, 291 AD2d 894; Joshua S. v Casey, 206 AD2d 839.)
   OPINION OF THE COURT

Ciparick, J.

Plaintiffs Wende C. and David C. were parishioners at Hosanna Junction United Methodist Church. During the period between January 1999 and April 2000, they sought individual counseling services from the church pastor Dr. G. Charles T. (Pastor T.). In the course of engaging in apparently intermittent ministerial counseling, Wende C. and the pastor developed a sexual relationship that lasted several months. On November 2, 2000, after David discovered the affair, plaintiffs commenced this action against defendants Pastor T., the Hosanna Junction United Methodist Church and various other ecclesiastical entities and officials for sexual battery, intentional infliction of emotional distress, clergy malpractice and negligent retention and supervision.

Supreme Court denied plaintiffs’ motions and cross motion for summary judgment, granted summary judgment sua sponte to the pastor, and granted the motion and cross motions of the remaining defendants for summary judgment, dismissing the complaint in its entirety. Plaintiffs appealed, and a divided Appellate Division affirmed. As relevant here, the majority held that the claims of battery—arising from incidents of touching that occurred more than a year prior to commencement of this action—were time-barred (see CPLR 215 [3]). As to the remaining encounters between Wende C. and Pastor T., the majority concluded that the record established as a matter of law that their “romantic attachment was mutual and the[ir] sexual contact [was] consensual” (6 AD3d 1047, 1049 [2004]).

The majority next addressed plaintiffs’ argument that, in carrying on a sexual relationship with Wende C., the pastor breached his fiduciary duty. While noting that plaintiffs failed to plead this cause of action, the majority concluded “that there is no meaningful analytical distinction between a cause of action for breach of fiduciary duty by a cleric and one for clergy malpractice” (id. at 1050). Finally, the majority dismissed the negligent supervision and retention claims on the ground that no vicarious liability existed in the absence of any wrongful or actionable conduct by Pastor T.

Two Justices dissented in part, voting to reinstate the sexual battery and breach of fiduciary duty causes of action against Pastor T. and the claims of negligent supervision and retention against defendants Western New York Conference of the United Methodist Church, District Superintendent David Lubba and Resident Bishop Hae-Jong Kim. Plaintiffs appeal as of right based on the two-Justice dissent, and we now affirm.

It is well settled that Supreme Court may grant a party summary judgment absent a cross motion for such relief where judgment is required as a matter of law (see CPLR 3212 [b]). A valid claim for battery exists where a person intentionally touches another without that person’s consent (see PJI2d 3:3 [2005]; see also Restatement [Second] of Torts § 18, Comment d, Illustration 1). Here, there is no dispute that Pastor T. intended the subject physical contact with Wende C. The parties only contest whether his actions were based on a lack of consent.

On the record before us, we conclude that as a matter of law the sexual relationship between the parties was indeed consensual. There exist no questions of fact “as to what occurred-[and] when” (dissenting op at 300). Indeed, Wende C. admitted that, on February 25, 1999, she initiated discussions with Pastor T. concerning her attraction to him. While she informed him that she preferred to terminate the ministerial counseling at that time, the record includes a sample of subsequent e-mails exchanged between the two expressing a shared affection and professing a growing love for one another. To be sure, after the affair was discovered, Wende C. took the initiative of forwarding these same e-mails to members of the congregation with the stated intention of demonstrating that the subject relationship was “very mutual.” Referring to the electronic correspondence as setting forth “a clearer, more accurate and truthful picture” of the affair, she stated in the accompanying letter: “[Pastor T] was just as responsible as I was in regards to how [the relationship] began and the course it followed.”

No record evidence exists that either Wende C.’s physical or emotional condition or prescribed medication impaired her ability to engage in a romantic relationship with Pastor T. or to consent to his physical contact. As there is no proof that Wende C. suffered from infancy, mental impairment or physical helplessness so as to render her consent impossible, Pastor T. was properly granted summary judgment sua sponte on the battery claim.

Moving next to plaintiffs’ contentions that Pastor T. breached his fiduciary duties to them, we note that these causes of action were not specifically pleaded. The complaint does not contain any allegation that Pastor T. breached his fiduciary duty to David C. during the period that David received counseling services from the pastor. The language in the complaint most resembling a fiduciary cause of action is found in a paragraph that refers only to Wende C. The paragraph alleges that Pastor T. exploited Wende “in the guise of providing pastoral counselling . . . and in breach of the sacred trust between counsellor and careseeker in the course of the ministerial relationship.” The complaint continues to state that the sexual battery alleged therein occurred while Pastor T. “was acting within the authority granted to him by the defendant Church . . . under the guise of his role as pastor in the ministerial relationship between himself and ... a congregant, and [in] his position as a responsible member of the clergy.”

While the complaint’s brief reference to a “sacred trust” may arguably be couched as alluding to a fiduciary duty, the surrounding language and the allegations that follow sound in clergy malpractice, which would improperly require courts to examine ecclesiastical doctrine in an effort to determine the standard of due care owed to parishioners undergoing ministerial counseling (see First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110, 116 [1984] [providing that “civil courts are forbidden from interfering in or determining religious disputes”]; see also Maryland & Va. Eldership of Churches of God v Church of God at Sharpsburg, Inc., 396 US 367, 369 [1970] [Brennan, J., concurring]). Given that no fiduciary cause of action is properly before us, we leave open for another day the question whether such a claim may arise between a cleric and a parishioner under very different circumstances, not present here. Plaintiffs’ remaining contentions are without merit.

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

G.B. Smith, J. (dissenting in part).

The two-Justice dissent in the Appellate Division concluded that summary judgment should not be granted because of contested allegations of sexual battery alleged to have occurred within one year of the action which was filed in November 2000 and because of the defendant pastor’s breach of a fiduciary relationship. Based upon the dissent at the Appellate Division, I dissent here. I write only to emphasize several points.

Defendant Pastor T. did not oppose the plaintiffs’ motion for summary judgment against him. Rather, plaintiffs moved for summary judgment and the defendants, other than Pastor T., cross-moved for summary judgment. The motion court denied the plaintiffs’ motion and granted the defendants’ motion. It further searched the record and, on its own motion, granted summary judgment in favor of Pastor T. against the plaintiffs.

It is undisputed that the plaintiffs received marital counseling from Pastor T. The plaintiffs contend that while they were undergoing counseling, said defendant committed battery by forcing himself sexually upon Wende C. Plaintiffs contend further that Pastor T. breached his fiduciary duty by engaging in an inappropriate sexual relationship during the time that he was counseling the marital couple.

Insofar as sexual battery is concerned, there is a question of fact as to what occurred, when it occurred and whether there was consent. As for the allegation of a breach of a fiduciary relationship, I cannot agree with the majority at the Appellate Division that there is no difference between an allegation of clergy malpractice, which would improperly involve the courts in ecclesiastical matters, and breach of a fiduciary relationship. What plaintiffs are alleging is that Pastor T. held himself out as a person qualified to give marital counseling, that they went to him seeking counseling for marital problems and that he breached a duty owed to them. Thus, plaintiffs are making allegations similar to those made against a psychiatrist who holds himself out as a person able to assist with problems of a psychological nature and then abuses the trust. In discussing their disagreement with the majority, the dissenters at the Appellate Division stated:

“We disagree with the majority’s conclusion that ‘there is no meaningful analytical distinction between a claim of breach of fiduciary duty by a cleric and one for clergy malpractice.’ In our view, there is a subtle and important difference between a clergy malpractice cause of action and one sounding in breach of fiduciary duty. A cause of action based upon breach of fiduciary duty rests not on the violation of a generalized professional standard, but on the abuse of a particularized relationship of trust (see Mandelblatt v Devon Stores, 132 AD2d 162, 168 [1987], quoting Restatement [Second] of Torts § 874, Comment a [‘ “A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation” ’]).” (6 AD3d 1047, 1055 [2004].)

Plaintiff Wende C. alleges that between November 2, 1999, and February 2000, while the pastor was giving marriage counseling to the plaintiffs, he engaged in instances of unwanted sexual contact against Wende C. These included an instruction to perform oral sex on him on November 2, 1999, sexual fondling and other sexual acts in a car on November 16, 1999, kissing on December 24, 1999, and fondling on January 21, 2000. All of these instances allegedly occurred after counseling sessions. Moreover, the statute of limitations had not run on these incidents prior to the filing of the lawsuit.

In addition, plaintiffs’ allegation is that while Pastor T. was engaging in marital counseling, he breached a duty of trust by engaging in sexual encounters. In the words of the dissenters at the Appellate Division, “while the existence of a clergy malpractice claim would depend on defining and evaluating a cleric’s religious duty, a claim for breach of fiduciary duty depends only upon an evaluation of whether a relationship of trust and confidence exists and whether that trust and confidence have been abused.” (Id. at 1056.)

Other states have concluded that an action for breach of a fiduciary duty can be maintained where a pastor engages in an inappropriate sexual relationship when pastoral counseling is sought (see, for example, F.G. v MacDonell, 150 NJ 550, 696 A2d 697 [1997]; Sanders v Casa View Baptist Church, 134 F3d 331 [Tex 1998]; Destefano v Grabrian, 763 P2d 275 [Colo 1988]).

For these reasons I would permit plaintiffs to prove their allegations against all of the defendants.

Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge Ciparick; Judge G.B. Smith dissents in part in a separate opinion.

Order affirmed, with costs.

      . It should be noted that Pastor T. had no license for professional counseling that might give rise to a complaint under the Education Law.

      . [1] Our discussion here is limited to plaintiffs’ allegations of unwanted touching that occurred after November 2, 1999. Any battery cause of action arising from contact between the parties before that date is barred by the applicable one-year statute of limitations (see CPLR 215 [3]).

       The majority opinion here does not discuss the issue of the difference between clergy malpractice and breach of a fiduciary duty.


source: Caselaw Access Project

author: G.B. Smith, J.

license: Public Domain

text:
    [828 NE2d 67, 795 NYS2d 151]
    The People of the State of New York, Respondent, v Bernard Pitts, Appellant. The People of the State of New York, Respondent, v Anthony Barnwell, Appellant.
    Argued January 6, 2005;
    decided February 15, 2005

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for appellant in the first above-entitled action.
    The motion court erroneously denied, without a hearing, Mr. Pitts’ Criminal Procedure Law § 440.30 (1-a) motion for DNA testing of material secured in connection with his trial. (People v Hayes, 284 AD2d 1008; People v Smith, 245 AD2d 79; People v Kellar, 89 NY2d 948; Kyles v Whitley, 514 US 419; People ex rel. Harris v Sullivan, 74 NY2d 305; People v Allen, 92 NY2d 378; People v Davis, 299 AD2d 874; People v Ahlers, 285 AD2d 664; People ex rel. Nichols v Board of County Canvassers, 129 NY 395; Matter of Siwek v Mahoney, 39 NY2d 159.)

      Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent in the first above-entitled action.
    Defendant failed to satisfy the threshold requirements of CPL 440.30 (1-a) to warrant DNA testing of evidence secured at the time of his arrest. Denial of his application, without a hearing, was warranted. (People v Kellar, 218 AD2d 406, 89 NY2d 948; People v Pugh, 288 AD2d 634, 91 NY2d 976; People v Keene, 4 AD3d 536; People v Degondea, 3 AD3d 148; People v Davis, 299 AD2d 874, 99 NY2d 581; People v Shenouda, 307 AD2d 938, 100 NY2d 645; People v Logan, 291 AD2d 459, 98 NY2d 638; People v Ahlers, 285 AD2d 664; People v Santorelli, 95 NY2d 412.)

      Edward J. Nowak, Public Defender, Rochester (James Eckert of counsel), for appellant in the second above-entitled action.
    The lower court erroneously denied, without a hearing, Mr. Barnwell’s Criminal Procedure Law § 440.30 (1-a) motion for DNA testing of material secured in connection with his trial. (People v Hayes, 284 AD2d 1008; People v Smith, 245 AD2d 79; People v Kellar, 89 NY2d 948; Kyles v Whitley, 514 US 419; People ex rel. Harris v Sullivan, 74 NY2d 305; People v Allen, 92 NY2d 378; People v Davis, 299 AD2d 874; People v Ahlers, 285 AD2d 664; People ex rel. Nichols v Board of County Canvassers, 129 NY 395; Matter of Siwek v Mahoney, 39 NY2d 159.)

      Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), for respondent in the second above-entitled action.
    The Appellate Division properly concluded that a hearing into the destruction of evidence, which was secured at the time of defendant’s arrest, was not required since defendant’s direct appeals were exhausted 10 years prior to his application for DNA testing pursuant to CPL 440.30 (1-a). (People v Satterfield, 66 NY2d 796; People v Crimmins, 38 NY2d 407; People v Ahlers, 285 AD2d 664, 97 NY2d 701; People v Morehouse, 5 AD3d 925, 3 NY3d 644; People v Pugh, 288 AD2d 634; People v Chichester, 162 Misc 2d 658; People v Wesley, 83 NY2d 417; People v Davis, 299 AD2d 874, 99 NY2d 581; People v Shenouda, 307 AD2d 938, 100 NY2d 645; People v Logan, 291 AD2d 459, 98 NY2d 638.)
   OPINION OF THE COURT

G.B. Smith, J.

These appeals present two questions: (1) does CPL 440.30 (1-a) impose a due diligence requirement, limiting the time by which a defendant must bring a postconviction motion requesting DNA testing and (2) does a defendant who brings such a motion bear the burden of establishing that the specified DNA evidence exists and is available in quantities sufficient to be tested?

The courts below denied defendants’ postconviction motions without a hearing, ruling that defendants did not bring timely motions for relief and therefore did not exercise the requisite due diligence and, further, that they did not demonstrate that the specified DNA evidence existed and was available for testing. For the reasons that follow, we conclude that there is no time limit for bringing a postconviction motion requesting the performance of forensic DNA testing, and the defendant does not bear the burden of showing that the specified DNA evidence exists and is available for testing.

FACTS

People v Bernard Pitts

On October 15, 1994, a 14-year-old female was raped at the Rundel Library in Rochester by a male acquaintance. Two days later, the victim disclosed the rape to her mother, sought medical attention at an area hospital and reported the rape to the police. By the time doctors completed the rape kit, the victim had showered and cleaned herself.

Pitts was arrested when the 14 year old saw him on the street and alerted her mother. Pitts originally entered a plea of guilty to a superior court information charging him with rape in the third degree. However, because the court determined that it could not comply with the promised sentence of 1 to 3 years, Pitts was allowed to withdraw his guilty plea. Pitts was subsequently indicted on the charges of rape in the first degree (Penal Law § 130.35 [1]) and rape in the third degree (Penal Law § 130.25 [2]) and proceeded to trial. At trial, the People did not introduce any forensic evidence of sexual intercourse. Defendant’s expert witness testified that the victim’s efforts to clean herself explained the absence of forensic evidence.

On October 12, 1995, the jury convicted Pitts of one count of rape in the first degree and one count of rape in the third degree. At sentencing, the prosecutor referred to the original plea agreement and noted that Pitts “does admit having sexual intercourse with the victim.” The court then sentenced Pitts to concurrent prison terms of 8V3 to 25 years and 1 to 3 years.

On June 20, 2001, more than five years after his direct appeal was final, Pitts, while in prison, filed a pro se motion pursuant to CPL 440.30 (1-a) seeking an order directing the performance of forensic DNA testing on certain evidence. In particular, he requested DNA testing of vaginal swabs, oral swabs, the victim’s underpants, all fibers and debris retrieved from clothing, hairs, and any other material tested by the Monroe County Public Safety Laboratory. Pitts argued that DNA material was collected in connection with his prosecution, and that a more favorable verdict would have resulted if evidence that DNA material did not come from him had been introduced at trial. The People responded that Pitts did not establish that the material he wanted contained DNA. The People also argued that Pitts’ application was untimely and should be dismissed on that ground.

On August 27, 2001, Monroe County Court denied Pitts’ motion without a hearing, finding that he did not exercise the requisite due diligence in making the application more than five years after his direct appeals were exhausted and almost three years after a previous CPL article 440 motion. Further, the court ruled that defendant failed to show that any of the items sought to be tested contained DNA. Because the jury was informed that no forensic evidence linked Pitts to the crime, the court found that even had DNA evidence been recovered in connection with the trial, there was no reasonable probability that the verdict would have been more favorable to defendant.

On June 14, 2004, the Appellate Division affirmed “for reasons stated in decision at Monroe County Court” (People v Pitts, 8 AD3d 1122 [4th Dept 2004]). A Judge of this Court granted the defendant leave to appeal. We now affirm because no reasonable probability exists that the verdict would have been more favorable to Pitts had the results of DNA testing been introduced at trial.

People v Anthony Barnwell

On June 15, 1985, at about 2:00 a.m., a man who sneaked into an unlocked and unoccupied van accosted a 38-year-old female as she was driving. The man assaulted, sodomized and repeatedly raped the victim in the back of the van. After assaulting her, he left the victim in the van. She returned home and called the police. When the police arrived, the victim recounted the ordeal and described her attacker. After making her report to the police, the victim went to an area hospital for treatment. A rape kit was prepared during the hospital visit.

On or about July 15, 1985, the police stopped Barnwell in the area where the rape occurred. On July 16, 1985, the police placed Barnwell’s photograph in a photo array and showed the array to the victim. She identified Barnwell as the man who had raped her. Barnwell was arrested two days later. Approximately eight months later, on February 24, 1986, the victim identified Barnwell, in a police-arranged lineup, as the man who raped her.

At trial, the People’s case consisted primarily of identification testimony by the victim, who was the only witness to the crime. Barnwell relied on misidentification as his defense. On February 20,1987, a jury convicted Barnwell of rape in the first degree (two counts) (Penal Law § 130.35 [1]), sodomy in the first degree (Penal Law § 130.50 [1]), robbery in the second degree (Penal Law § 160.10 [2] [a]), assault in the second degree (Penal Law § 120.05 [6]) and grand larceny in the third degree (Penal Law § 155.30 [5]). He was sentenced to concurrent terms of 7/2 to 15 years for rape and sodomy, SVz to 7 years for robbery and assault and 2 to 4 years for grand larceny. The Appellate Division affirmed (People v Barnwell, 155 AD2d 886 [4th Dept 1989]) and a Judge of this Court denied leave to appeal (75 NY2d 810 [1990]).

On September 20, 2000, approximately 10 years after Barn-well’s direct appeal was final, and more than six years after the enactment of CPL 440.30 (1-a), Barnwell, while in prison, filed a pro se motion pursuant to CPL 440.30 (1-a) for DNA testing on hairs, semen and a cigarette butt recovered in connection with his prosecution. Barnwell alleged in his motion that the evidence established that he and the victim were unknown to each other before the crime, that a question of identity was raised at trial, and that there was a reasonable probability that had DNA evidence been admitted at trial, the verdict would have been more favorable to him. In response, the People argued that a due diligence standard applied, and that Barnwell failed to meet it by filing an untimely motion—six years after the enactment of CPL 440.30 (1-a) and 13 years after his conviction. The People also claimed that DNA testing was impossible, relying on a hearsay affirmation stating that “[according to” an employee of the Property Clerk’s office, the rape kit had been destroyed in accordance “with the [Police] Department’s policy.”

On December 20, 2000, Supreme Court denied Barnwell’s motion for an order directing DNA testing without a hearing. Given that the prosecution’s case at trial consisted primarily of identification testimony by the victim, the fact that there were no other witnesses to the crime, and the fact that Barnwell and the victim were unknown to each other before the incident, the court indicated that this case presents the type of case where DNA testing would make a difference if conducted at this point in time. However, the court noted that “the problem in this case is that the evidence originally obtained and containing the potential DNA evidence to be tested no longer exists.”

On April 30, 2004, the Appellate Division affirmed, holding that under Appellate Division precedent “it is incumbent upon a defendant to show that the evidence to be tested still exists and is available in quantities sufficient to make testing feasible at this late date.” (6 AD3d 1147, 1147 [2004] [internal quotation marks omitted].) The Court stated, “[flurther, there is no need for a hearing to inquire into the destruction of the evidence because the People were under no obligation to preserve the evidence after defendant’s direct appeals were exhausted in 1990, more than 10 years prior to the instant motion.” (Id. at 1147-1148.) A Judge of this Court granted the defendant leave to appeal. We now reverse and remit this case to Supreme Court for further proceedings as set forth below.

DISCUSSION

Over the last 10 years, forensic DNA testing has become an accurate and reliable means of analyzing physical evidence collected at crime scenes and has played an increasingly important role in conclusively connecting individuals to crimes and exonerating prisoners who were wrongfully convicted.

In 1994, the Legislature enacted CPL 440.30 (1-a), establishing a new procedure for defendants who were convicted prior to 1996 to secure DNA testing. In 2004 the Legislature amended CPL 440.30 (1-a) to allow any defendant, regardless of the date of conviction, to move for a DNA testing order. The amendment further empowered courts to direct prosecutors to inform defendants of any information in the prosecutor’s possession regarding the current location of the evidence to be tested, whether the evidence still exists, and the last-known physical location of the evidence. These statutory requirements—setting forth a standard different from that applied in other CPL article 440 motions to vacate convictions involving newly discovered evidence and expanding the class of defendants to whom testing is available—reflect the vital importance and potential exonerating power of DNA testing.

Under CPL 440.30 (1-a), as originally enacted, a defendant convicted before January 1, 1996 can move for DNA testing on specified evidence. The court then determines whether any evidence containing DNA was secured in connection with the trial and “the court shall grant” the defendant’s application if it determines that had a DNA test been conducted on the evidence and had the results of that evidence been admitted at trial, “there exists a reasonable probability that the verdict would have been more favorable to the defendant.”

In each of the cases before us, the Appellate Division concluded that defendant failed to exercise due diligence in bringing his motion requesting the performance of forensic DNA testing and did not “show that the evidence to be tested still exists and is available in quantities sufficient to make testing feasible” (People v Ahlers, 285 AD2d 664, 665 [3d Dept 2001], lv denied 97 NY2d 701 [2002]).

We conclude that these Courts erred in interpreting CPL 440.30 (1-a) to impose upon defendants a due diligence requirement limiting the time within which to make a CPL 440.30 (1-a) motion, and to place on defendants the burden to establish the location and status of the evidence they seek to be tested.

We hold that there is no time limit for bringing a postconviction motion requesting the performance of forensic DNA testing. A defendant may move for DNA testing pursuant to CPL 440.30 (1-a) at any time. We further hold that the defendant does not bear the burden of showing that the specified DNA evidence exists and is available in suitable quantities to make testing feasible. To the contrary, it is the People, as the gatekeeper of the evidence, who must show what evidence exists and whether the evidence is available for testing.

We now consider whether the lower courts properly denied the instant postconviction motions without a hearing or further proceedings into whether the evidence sought to be tested still exists.

As to Pitts, we conclude that the trial court correctly denied the motion without a hearing on the ground that no reasonable probability existed that Pitts would have received a more favorable verdict had a DNA test been conducted and had the results of the test been introduced at trial.

Given the victim’s two-day wait before reporting the rape and receiving medical attention, and the testimony of defendant’s expert that no physical evidence was recovered from the victim, there is no reasonable probability that DNA testing could have led to a more favorable verdict.

In Barnwell, on the other hand, the court improperly denied the motion without a hearing or further proceedings. Though Barnwell requested testing of specified evidence containing DNA and the motion court found that defendant met the CPL 440.30 (1-a) reasonable probability requirement, the motion court denied Barnwell’s application, relying merely on the People’s conclusory assertion that the evidence in question no longer exists. The motion court also held that defendant did not exercise due diligence in pursuing his CPL 440.30 (1-a) motion. This was reversible error. As stated above, CPL 440.30 (1-a) does not impose a time limitation on a defendant moving for DNA testing.

Further, upon Barnwell’s motion, and the motion court’s determination that, had the evidence been tested and the results admitted at trial, the result would have been more favorable to defendant, the People, and not defendant, had the burden of establishing with sufficient specificity whether the evidence existed and could be tested. The mere assertion that the evidence no longer exists based on a phone call to a police Property Clerk’s office is insufficient as a matter of law under CPL 440.30 (1-a). We thus reverse the Appellate Division’s order and remit to Supreme Court, Monroe County for further proceedings to establish whether the DNA evidence in question exists. Supreme Court should take steps to obtain from the People reliable information as to whether or not the evidence sought exists and the source of such information. Adequate information from the People might include, for example, an affidavit from an individual with direct knowledge of the status of the evidence or an official record indicating its existence or nonexistence.

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

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

In People v Pitts: Order affirmed.

In People v Barnwell: Order reversed and case remitted to Supreme Court, Monroe County, for further proceedings in accordance with the opinion herein.

      . These convictions were affirmed by the Appellate Division (People v Pitts, 231 AD2d 901 [4th Dept 1996]), and leave to appeal to this Court was denied (89 NY2d 928 [1996]).

      . According to the laboratory report concerning the victim’s rape kit, no spermatozoa were observed on the slides, nor was there any seminal material detected on the swabs examined or the victim’s underpants. Further, there is no indication that hair samples collected from the victim contained DNA.

      . Both defendants were convicted before January 1, 1996; they made and the courts determined their motions under the prior version of the statute. Accordingly, the 2004 amendment does not affect the outcome of these cases.

      . CPL 440.30 (1-a), as enacted on August 2, 1994 provided:
      “In cases of convictions occurring before January first, nineteen hundred ninety-six, where the defendant’s motion requests the performance of a forensic DNA test on specified evidence, and upon the court’s determination that any evidence containing deoxyribonucleic acid (‘DNA’) was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.”

      . We also note that, at sentencing, defendant Pitts admitted to having sexual intercourse with the victim and claimed that it was consensual.


author: Rosenblatt, J.

text:
    [827 NE2d 758, 794 NYS2d 700]
    State Farm Mutual Automobile Insurance Co., Appellant, v Robert Mallela et al., Respondents.
    Argued February 8, 2005;
    decided March 29, 2005

      POINTS OF COUNSEL

      Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman and Stuart M. Bodoff of counsel), and KMZ Rosenman LLP, Chicago, Illinois (Ross O. Silverman and Gil M. Soffer of counsel), for appellant.
    A medical corporation that is fraudulently incorporated under Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c) is not entitled to be reimbursed by insurers under Insurance Law § 5101 et seq. and its implementing regulations for medical services rendered by licensed medical practitioners. (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Matter of Nicholas v Kahn, 47 NY2d 24; Blue Cross & Blue Shield of Cent. N.Y. v McCall, 89 NY2d 160; Ostrer v Schenck, 41 NY2d 782; Breen v Cunard Lines S.S. Co., 33 NY2d 508; Matter of Council of City of N.Y. v Public Serv. Commn. of State of N.Y., 99 NY2d 64; Matter of Marzec v DeBuono, 95 NY2d 262; Matter of John Paterno, Inc. v Curiale, 88 NY2d 328; Matter of New York Pub. Interest Research Group v New York State Dept, of Ins., 66 NY2d 444; Matter of Medical Socy. of State of N.Y. v Levin, 280 AD2d 309.)

      Law Office of Joseph J. LaBarbera, PC., Brooklyn (Joseph J.

      LaBarbera of counsel), for Astoria Physical Medicine and Rehabilitation, EC. and another, respondents.
    I. The interpretations of the Superintendent of Insurance of the State of New York are inconsistent with the legislative purpose in enacting the No-Fault Law and should not be accorded any deference. (Matter of Medical Socy. of State of N.Y. v Levin, 185 Misc 2d 536, 280 AD2d 309.) II. Terms must be given their natural or obvious meaning, must be interpreted with consistency and effect given to such obvious meaning in the absence of express language to the contrary. (Matter of Excellus Health Plan v Serio, 2 NY3d 166.) III. The interpretation of licensing laws both generally and within the context of the No-Fault Law is a special skill delegated to the Commissioner of Health of the State of New York by the Legislature and accordingly the Superintendent of Insurance of the State of New York’s interpretation is not to be accorded deference in the resolution of the certified question. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Lippman v Public Empl. Relations Bd., 263 AD2d 891.) IV Permitting an insurer to inquire into the validity of a medical corporation’s license or a health provider’s compliance with licensing laws would defeat the primary purpose of the no-fault regulations. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274.) V The certified question must be answered in the affirmative, as to find otherwise, the Court will be implying a right of inquiry into licensure compliance as part of the claims process where such process was deliberatively excluded from the no-fault statutes under common canons of construction. VI. Plaintiffs citation to arbitration decisions and case law does not support a judgment that plaintiff is not required to pay based on fraudulent corporate structure. (Universal Acupuncture Pain Servs., P.C. v State Farm Mut. Auto. Ins. Co., 196 F Supp 2d 378.) VII. So long as the actual health providers of services were licensed to provide the services, the issue of the professional corporation defendants’ formation is not a basis to deny claims. (Charlebois v Weller Assoc., 72 NY2d 587; Easterson v Long Is. Jewish Med. Ctr., 156 AD2d 636, 76 NY2d 704, 889.) VIII. The number of potential objections to providers’ licensing compliance based on interpretation of the corporate practice of medicine by insurers would cause an unfettered and arbitrary obstruction of the speedy no-fault claims process. (Charlebois v Weller Assoc., 72 NY2d 587.)

      Friedman Harfenist Langer & Kraut, Lake Success (Steven J. Harfenist and Neil Torczyner of counsel), for Valley Physical Medicine and Rehabilitation, EC. and others, respondents.
    I. New York’s No-Fault Law does not allow an insurer to look beyond a facially valid license. (Montgomery v Daniels, 38 NY2d 41; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Pajak v Pajak, 56 NY2d 394; Bay Shore Family Partners v Foundation of Jewish Philanthropies of Jewish Fedn. of Greater Fort Lauderdale, 239 AD2d 373; Nyack Hosp. v Village of Nyack Planning Bd., 231 AD2d 617; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; Country-Wide Ins. Co. v 3-M Prod. Sales, 96 AD2d 569; Bernstein v Greater N.Y. Mut. Ins. Co., 706 F Supp 287; Country Wide Ins. Co. v Osathanugrah, 94 AD2d 513, 62 NY2d 815; State Farm Mut. Auto. Ins. Co. v Regional Tr. Serv., 79 AD2d 858.) II. The no-fault regulations and statutory scheme cannot be construed to support an insurer’s ability to look beyond a facially valid license. (Breen v Cunard Lines S.S. Co., 33 NY2d 508; Matter of New York Pub. Interest Research Group v New York State Dept, of Ins., 66 NY2d 444; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; T.D. v New York State Off. of Mental Health, 228 AD2d 95; Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Matter of Union Indem. Ins. Co. of N.Y., 92 NY2d 107; Commissioners of State Ins. Fund v Brooklyn Barber Beauty Equip. Co., 191 Misc 2d 1; Matter of Senior Life Mgt. v Dowling, 225 AD2d 224; Colten v Kentucky, 407 US 104.) III. State Farm Mutual Automobile Insurance Co. has failed to plead causes of action for fraud or unjust enrichment. (People v Buffalo Stone & Cement Co., 131 NY 140; Matter of Brooklyn El. R.R. Co., 125 NY 434; Universal Acupuncture Pain Servs., PC. v State Farm Mut. Auto. Ins., 196 F Supp 2d 378; New York Cent. Mut. Ins. Co. v 563 Grand Med., P.C., 4 Misc 3d 1020[A]; Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112; Stuart Silver Assoc, v Baco Dev. Corp., 245 AD2d 96; Marcus v AT&T Corp., 138 F3d 46; Lake Minnewaska Mtn. Houses v Rekis, 259 AD2d 797; Wiener v Lazard Freres & Co., 241 AD2d 114; Schank v Schuchman, 212 NY 352.)

      Hoffman, Einiger & Polland, PLLC, New York City (Mark L. Furman of counsel), and Israel, Israel & Purdy, LLP, Great Neck (Veronica Renta Irwin, Stuart M. Israel and William M. Purdy of counsel), for Yonkers Medical Services, P.C. and others, respondents.
    I. In the absence of other fraud allegations, an insurer may not refuse to pay a benefits claim based upon an allegation that, in seeking its original certificate of authority to do business as a professional medical services corporation, the corporation had a “true owner” who did not possess a license to practice medicine. (Matter of Medical Socy. of State of N.Y. v Levin, 185 Misc 2d 536, 280 AD2d 309; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; Montgomery v Daniels, 38 NY2d 41; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195; Ostrer v Schenck, 41 NY2d 782; Matter of New York Pub. Interest Research Group v New York State Dept, of Ins., 66 NY2d 444; Vinings Spinal Diagnostic v Liberty Mut. Ins. Co., 186 Misc 2d 287; Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321.) II. Appellant’s common-law fraud and unjust enrichment claims were properly dismissed. (Katz v Zuckermann, 126 Misc 2d 135, 119 AD2d 732; United Calendar Mfg. Corp. v Huang, 94 AD2d 176; Morissette v United States, 342 US 246; Murray Walter, Inc. v Sarkisian Bros., 107 AD2d 173; O’Brien Investigations v Zorn, 263 AD2d 812; Remba v Federation Empl. & Guidance Serv., 76 NY2d 801; Deutsch v Health Ins. Plan of Greater N.Y., 573 F Supp 1443; Universal Acupuncture Pain Servs., PC. v State Farm Mut. Auto. Ins., 196 F Supp 2d 378; Matter of Bingham v Town Bd. of Town of Burlington, 103 AD2d 923; Brener & Lewis v Fawcett Publs., 197 Misc 207, 276 App Div 994.)

      Goodwin Proctor LLP, New York City (Jeffrey A. Simes and Richard M. Strassberg of counsel), and La Sorsa & Beneventano, White Plains (Gregory M. La Sorsa of counsel), for Dr. Dipak Nandi and others, respondents.
    State Farm Mutual Automobile Insurance Co.’s view of the No-Fault Law is inconsistent with the law’s purpose and structure and would do violence to what the Legislature sought to achieve. (Matter of Rosenblum [Government Empls. Ins. Co.], 41 NY2d 966; Matter of Sutka v Conners, 73 NY2d 395; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211; Argentina v Emery World Wide Delivery Corp., 93 NY2d 554; Montgomery v Daniels, 38 NY2d 41; Agnostakios v Laureano, 85 Misc 2d 203; American Tr. Ins. Co. v Sartor, 3 NY3d 71; Raritan Dev. Corp. v Silva, 91 NY2d 98; Servomation Corp. v State Tax Commn., 51 NY2d 608; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669.)

      Eliot Spitzer, Attorney General, New York City (Daniel Smirlock and Robert H. Easton of counsel), for Gregory V Serio, amicus curiae.
    A fraudulently formed medical corporation is not eligible for reimbursement under the No-Fault Law. (Matter of

      ATM One v Landerverde, 2 NY3d 472; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Matter of Notre Dame Leasing v Rosario, 2 NY3d 459; Matter of Medical Socy. of State of N.Y. v Levin, 280 AD2d 309; Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791; Galbreath-Ruffin Corp. v 40th & 3rd Corp., 19 NY2d 354.)

      Locks Law Firm, PLLC, New York City (Seth R. Lesser and Andrew P. Bell of counsel), Thomas W. Alfano and Belesi & Donovan, PC., Garden City (John Belesi of counsel), for Meridian Acupuncture Care, amicus curiae.
    A private right of action exists for violation of the corporate practice prohibition of Business Corporation Law § 1504. (Sheehy v Big Flats Community Day, 73 NY2d 629; Uhr v East Greenbush Cent. School Dist., 94 NY2d 32.)

      Cadwalader, Wickersham & Taft LLP, New York City (Francis J. Serbaroli and William J. Natbony of counsel), and Short & Billy, P.C. (Skip Short of counsel), for Allstate Insurance Company and others, amici curiae.
    I. Fraudulently formed medical practices are part of the pervasive problem of no-fault fraud and constitute a real danger to patients. (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; United States v Lucien, 347 F3d 45; Matter of Co-Operative Law Co., 198 NY 479; McConnell v Commonwealth Pictures Corp., 7 NY2d 465.) II. The 30-day prompt payment rule does not bar affirmative recovery actions against fraudulently-formed medical practices. (Montgomery v Daniels, 38 NY2d 41; Dermatossian v New York City Tr. Auth., 67 NY2d 219; Liberty Mut. Ins. Co. v United States, 490 F Supp 328; Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353; Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545; Matter of Rodriguez v Perales, 86 NY2d 361; Matter of Morris v County Bd. of Assessors, 35 NY2d 624; Matter of John Paterno, Inc. v Curiale, 88 NY2d 328; Udall v Tallman, 380 US 1; Lyng v Payne, 476 US 926.) III. Insurance Law § 5106 also does not bar the denial of no-fault claims on grounds of fraudulent corporate formation beyond the 30-day period. (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195; McConnell v Commonwealth Pictures Corp., 7 NY2d 465.)

      Pastel & Rosen, LLP, Albany (Robert Pastel of counsel), for New York Insurance Association, Inc., amicus curiae.
    The Superintendent of Insurance’s prohibition against reimbursing fraudulently incorporated medical providers is not unreasonable.
   OPINION OF THE COURT

Rosenblatt, J.

On this certified question from the United States Court of Appeals for the Second Circuit, we are asked whether, under our “no-fault” insurance laws (see Insurance Law § 5101 et seq. and implementing regulations), insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims. We conclude that they may.

Patients covered by no-fault insurance often assign their claims to their health care providers rather than seek reimbursement from insurance carriers directly (see 11 NYCRR 65-3.11). Regulations require the carriers to make prompt decisions on claims once the provider has furnished adequate factual support (see 11 NYCRR 65.15).

This case began when State Farm filed a complaint in the United States District Court for the Eastern District of New York seeking a judgment declaring that it need not reimburse defendants—fraudulently incorporated medical corporations— for assigned claims submitted under no-fault. The complaint also sought equitable relief and damages against defendant companies and individuals for unjust enrichment and fraud. State Farm alleged, in essence, that to obtain payments from the carriers under the requirements of no-fault insurance, defendants willfully evaded New York law prohibiting nonphysicians from sharing ownership in medical service corporations.

According to the complaint, the unlicensed defendants paid physicians to use their names on paperwork filed with the State to establish medical service corporations. Once the medical service corporations were established under the facially valid cover of the nominal physician-owners, the nonphysicians actually operated the companies. To maintain the appearance that the physicians owned the entities, the nonphysicians caused the corporations to hire management companies (owned by the non-physicians), which billed the medical corporations inflated rates for routine services. In this manner, the actual profits did not go to the nominal owners but were channeled to the nonphysicians who owned the management companies.

Notably, State Farm never alleged that the actual care received by patients was unnecessary or improper. The patients insured by State Farm presumably received appropriate care from a health professional qualified to give that care. State Farm’s complaint centers on fraud in the corporate form rather than on the quality of care provided.

The Federal District Court dismissed State Farm’s complaint, holding that defendants’ noncompliance with the licensing and incorporation statutes did not extinguish State Farm’s duty to pay, so long as the actual providers acted within the scope of their licenses in rendering care. The Second Circuit then certified to this Court the question whether

“a medical corporation that was fraudulently incorporated under N.Y. Business Corporation Law §§ 1507, 1508, and N.Y. Education Law § 6507(4)(c) [is] entitled to be reimbursed by insurers, under New York Insurance Law §§ 5101 et seq., and its implementing regulations, for medical services rendered by licensed medical practitioners” (372 F3d 500, 510 [2004]).

We accepted the certification and now answer that such corporations are not entitled to reimbursement.

Insurance Law § 5102 et seq. requires no-fault carriers to reimburse patients (or, as in this case, their medical provider assignees) for “basic economic loss.” Interpreting the statute, the Superintendent of Insurance promulgated 11 NYCRR 65-3.16 (a) (12) (effective April 4, 2002) and excluded from the meaning of “basic economic loss” payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement.

If State Farm’s allegations are true, as we must construe them to be at this stage, the defendant companies undisputedly fail to meet the applicable state licensing requirements, which prohibit nonphysicians from owning or controlling medical service corporations. Furthermore, a fraudulently incorporated medical company is “[a] provider of health care services” within the meaning of the regulation.

Defendants contend they are entitled to reimbursement even if fraudulently licensed. They first argue that the actual care that patients received was within the scope of the licenses of those who treated the patients. Defendants posit that this licensing compliance brings them within the regulatory framework for reimbursement. We disagree. The fact remains that the reimbursement goes to the medical service corporation that exists to receive payment only because of its willfully and materially false filings with state regulators.

Defendants also argue that the quoted regulation conflicts with the prompt payment goals of the no-fault statutes. The Second Circuit treated this issue as a difficult policy balance: on the one hand, there is our State’s prohibition against lay ownership of shares in medical corporations (and the accompanying potential for fraud), and on the other, our encouragement of prompt payment of insurance claims, as reflected in the statutes.

The regulation is valid. We are guided by the well-established principle of administrative law that the Superintendent’s “interpretation, if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (Matter of New York Pub. Interest Research Group v New York State Dept, of Ins., 66 NY2d 444, 448 [1985]). Where, as here, the Superintendent has properly crafted a rule within the scope of his authority, that rule has the force of law and represents the policy choice of this State.

The Superintendent’s regulation allowing carriers to withhold reimbursement from fraudulently licensed medical corporations governs this case. We hold that on the strength of this regulation, carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law. Defendants argue that the carriers will turn this investigatory privilege into a vehicle for delay and recalcitrance.

The regulatory scheme, however, does not permit abuse of the truth-seeking opportunity that 11 NYCRR 65-3.16 (a) (12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause (see 11 NYCRR 65-3.2 [c]). In the licensing context, carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud. Technical violations will not do. For example, a failure to hold an annual meeting, pay corporate filing fees or submit otherwise acceptable paperwork on time will not rise to the level of fraud. We expect, and the Legislature surely intended, vigorous enforcement action by the Superintendent against any carrier that uses the licensing-requirement regulation to withhold or obstruct reimbursements to nonfraudulent health care providers.

The Second Circuit questioned whether, if the fraudulent corporations were not entitled to reimbursement, State Farm could recover money already paid out under theories of fraud or unjust enrichment. Because we rest our holding on the Superintendent’s amended regulation declaring fraudulently licensed corporations ineligible for reimbursement, no cause of action for fraud or unjust enrichment would lie for any payments made by the carriers before that regulation’s effective date of April 4, 2002. State Farm’s complaint does not clearly indicate, one way or the other, whether it has paid money to defendants after the amended regulation took effect. We therefore answer only the certified question and decline to consider whether State Farm has alleged sufficient facts to support causes of action for fraud or unjust enrichment.

Based on the foregoing, the certified question should be answered in the negative.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.

      . See e.g. Business Corporation Law § 1507 (“A professional service corporation may issue shares only to individuals who are authorized by law to practice in this state a profession which such corporation is authorized to practice . . .”).

      . See 11 NYCRR 65-3.16 (a) (12) (“A provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement . . .”). In his amicus brief, the Superintendent asserts that he promulgated this rule to combat rapidly growing incidences of fraud in the no-fault regime, fraud that he has identified as correlative with the corporate practice of medicine by nonphysicians.

      . We have already unanimously concluded that the regulation is within the Superintendent’s authority to issue and will not disturb that result (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 866 [2003] [“Here, however, the challenged regulations create not a new category of exclusion, but rather merely a condition precedent with which all claimants must comply in order to receive benefits under the statute.”]).


author: Chief Judge Kaye.

text:
    [828 NE2d 74, 795 NYS2d 158]
    The People of the State of New York, Respondent, v Richard Aiken, Appellant.
    Argued February 9, 2005;
    decided March 31, 2005

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jody Ratner and Robert S. Dean of counsel), for appellant.
    The court erroneously instructed the jury that appellant had a duty to retreat if the jury found, in accordance with appellant’s testimony, that, at the time of the incident, he was (1) inside his dwelling, or (2) in the threshold of his dwelling. (Cupp v Naughten, 414 US 141; People v Hernandez, 98 NY2d 175; People v Tomlins, 213 NY 240; People v Padgett, 60 NY2d 142; People v Mezon, 80 NY2d 155; Berman v H.J. Enters., 13 AD2d 199; Payton v New York, 445 US 573; People v Reynoso, 2 NY3d 820; United States v Santana, 427 US 38; People v White, 127 Misc 2d 219.)

      Robert T. Johnson, District Attorney, Bronx (Andrew N. Sacher, Joseph N. Ferdenzi and Nancy Killian of counsel), for respondent.
    Defendant was not entitled to an instruction that he had no duty to retreat even assuming arguendo that he was standing in the threshold of his doorway when he fatally struck the victim, and alternatively, any error in the court’s charge to the jury regarding self-defense was harmless in light of the overwhelming evidence that there was no justification for defendant’s attack on the victim. (People v Sullivan, 7 NY 396; People v Tomlins, 213 NY 240; People v Kennedy, 159 NY 346; People v Constantino, 153 NY 24; People v Seit, 86 NY2d 92; People v Crimmins, 36 NY2d 230; People v Berk, 88 NY2d 257; People v Hernandez, 98 NY2d 175; People v Padgett, 60 NY2d 142; People v Butts, 72 NY2d 746.)
   OPINION OF THE COURT

Chief Judge Kaye.

Before defensively using deadly physical force against another, does a defendant standing in the doorway between his apartment and the common hall of a multi-unit building have a duty under Penal Law § 35.15 to retreat into his home when he can safely do so? We answer that question in the affirmative.

Facts

Defendant and the victim were next-door neighbors in the same apartment building in the Bronx for nearly 40 years, virtually their entire lives. Their families were close until 1994 or 1995, when a dispute—with ultimately tragic consequences— arose over cable and telephone wiring. The victim and his family believed that defendant was siphoning off their services, even after the service providers found that the suspicion was without basis. In 1997, following a heated verbal exchange, the victim stabbed defendant in the back, hospitalizing him for two days. Although the families remained next-door neighbors, separated only by a common wall, from 1997 to 1999 the victim repeatedly threatened to shoot, stab or otherwise injure defendant. He made these threats to defendant’s face, to his father and to neighbors—at one point even brandishing a boxcutter.

On December 21, 1999, defendant and the victim argued through the shared bedroom wall between their apartments. Using a metal pipe, defendant knocked an indentation into his side of the wall. The victim then left his apartment to go downstairs and open the building’s front door for the police, who responded to the 911 call his mother had made about defendant. Defendant, inside his apartment, walked to his front door several times, opening it and looking into the public hall until he saw the victim there with a friend.

Still holding the metal pipe he had earlier used to hit the wall, defendant (while remaining in his doorway) then engaged in an angry argument with the victim. According to defendant’s trial testimony, he continued standing in the doorway, never going into the hall, when the victim reached into his pocket, came up to defendant’s face “nose to nose,” and said “he was going to kill” him. Believing he was about to be stabbed again, defendant struck the victim on his head with the metal pipe, killing him.

As defendant requested, the trial court instructed the jury as to the Penal Law § 35.15 defense of justification, including that “a person may nevertheless not use defensive deadly physical force if he knows he can with complete safety to himself avoid such use of deadly physical force by retreating.” Immediately after this instruction, defendant asked the court to “charge the jury that if a defendant is in his home and close proximity of a threshold of his home there is no duty to retreat.” The trial court denied the request, ruling “[defendant] said he was at the doorway and I don’t consider that being inside his home . . . .” The jury acquitted defendant of murder but convicted him of manslaughter in the first degree, and he was sentenced to a determinate term of 16 years. The Appellate Division affirmed, as do we.

The Duty to Retreat

Historically, English common law justified deadly force only in circumstances where one was executing the law—effecting a legal arrest or preventing violent felonies (see Perkins, Self-Defense Re-Examined, 1 UCLA L Rev 133 [1954]). When deadly force was reasonably used in self-defense it only excused—but did not justify—the homicide (see Wharton, Homicide, ch IX, § III, at 211 [1855]). The difference was more than theoretical, as the excused killer was subject to property forfeiture and, at times, even a penal sentence (see Dressier, Understanding Criminal Law § 17.01, at 205 [3d ed]). However, with the enactment of 24 Henry 8 chapter 5 (1532), the justification defense was enlarged to include deadly force reasonably used in self-defense. This broader reading of the justified use of deadly force was further refined by cases involving attacks in the dwelling of the defender. Such a defender—even if the original aggressor—did not have a duty to retreat when inside the home, or “Castell” (Lam-bard, Eirenarcha or of the Office of the Justices of Peace, at 250 [1599]).

Our contemporary castle doctrine grew out of a turbulent era when retreat from one’s home necessarily entailed increased peril and strife (see Thompson, Homicide in Self-Defence, 14 Am L Rev 545, 548, 554 [1880]). The rationale that evolved—now widely accepted—is that one should not be driven from the inviolate place of refuge that is the home. “It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home” (see People v Tomlins, 213 NY 240, 243 [1914, Cardozo, J.]).

The home exception to the duty to retreat reflects two interrelated concepts—defense of one’s home, and defense of one’s person and family. “[T]he house has a peculiar immunity [in] that it is sacred for the protection of [a person’s] family,” and “[m]andating a duty to retreat for defense of dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled” (State v Carothers, 594 NW2d 897, 900, 901 [Minn 1999] [internal quotation marks and citations omitted]). Yet somewhat at odds with this privileged status accorded the home is the state’s general interest in protecting life. “The duty to retreat reflects the idea that a killing is justified only as a last resort, an act impermissible as long as other reasonable avenues are open” (People v Jones, 3 NY3d 491, 494 [2004]). Indeed, requiring a defender to retreat before using deadly force may in fact be the “more civilized view” (2 LaFave, Substantive Criminal Law § 10.4 [f], at 155 [2d ed]). Inevitably, then, a balance must be struck between protecting life by requiring retreat and protecting the sanctity of the home by not requiring retreat.

Prior to 1940, New York’s decisional law tended toward protection of life by imposing a generalized duty to retreat in the face of deadly force (People v Tomlins, 213 NY 240 [1914]; People v Kennedy, 159 NY 346, 349 [1899]; People v Constantino, 153 NY 24 [1897]). However, in People v Ligouri (284 NY 309, 317 [1940]), this Court departed from what had been the traditional retreat rule and held that a defendant faced with felonious attack on a public street was justified “in standing his ground and, if necessary, destroying the person making the felonious attack.” The Legislature responded in its 1965 revision of the Penal Law (see L 1965, ch 1030; see also Denzer and Mc-Quillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 35.15, at 64 [1967 ed]). Codifying what had been the common law of the state prior to Ligouri, Penal Law § 35.15 (2) (a) for the first time statutorily limited the use of lethal defensive force to circumstances when the defender “knows that he can avoid the necessity of using such force with complete safety ... by retreating” (Penal Law § 35.15 [2] [a]). The Legislature also incorporated the castle doctrine—balancing the competing interests of protecting the home and protecting life—directing that the duty to retreat does not apply when the defender “is in his dwelling and was not the initial aggressor” (Penal Law § 35.15 [2] [a] [i]).

Thus, our current statutory recognition of the castle doctrine in Penal Law § 35.15 reaffirmed New York’s traditional self-defense principles (see People v Hernandez, 98 NY2d 175, 182 [2002]). If the attack occurs in the dwelling, a defender need not retreat but may use reasonable force to repel it.

Application to This Case

Defendant argues that the trial court erred in refusing to instruct the jury that he had no duty to retreat because a reasonable view of the evidence supported an inference either that he was inside his apartment when confronted by the victim or that he was in the doorway between his apartment and the common hall.

Initially, we recognize that the evidence supported defendant’s request for a justification charge. Only recently, in People v Jones, we held that the defendant “never claimed, and there is no reason to believe, that he was fearful of being killed or harmed by the actions of the deceased” (3 NY3d at 497). Here, by contrast, defendant presented evidence of his prior history with the victim, the victim’s threats and violent conduct, as well as defendant’s subjective belief that the victim was about to stab him again. While he was thus entitled to the justification charge, he was not entitled to a jury instruction that he had no duty to retreat.

Under no reasonable view of the evidence was defendant actually inside his apartment when confronted by the victim. Both in his trial testimony and in his pretrial statement to the police, defendant repeatedly stated that he was in the doorway, not inside the apartment, when the victim confronted him. Further, the victim collapsed and died in the hallway, with no part of his - body inside defendant’s apartment. Consequently, defendant was not entitled to a jury instruction that he had no duty to retreat on the theory that he was inside his apartment.

Nor did defendant’s claim that he was standing in the doorway, or threshold, of his apartment entitle him to that instruction.

Defendant argues that the doorway between the apartment and the shared hall was part of his dwelling—his private sanctuary. As we recognized in People v Hernandez (98 NY2d 175, 183 [2002]), whether a particular area is part of a dwelling under Penal Law § 35.15 “depends on the extent to which defendant . . . exercises exclusive possession and control over the area in question.”

Here, defendant was in an area that functioned as a portal between an interior world and a public one. It was the region where a stranger, seeking access to the interior, could ask for entry. The actual physical space of the doorway straddled both the private apartment and the public hall. A nonresident could stand there and knock, ring a bell or turn the door’s handle. The resident had exclusive control and possession only over that part of the apartment, the private property, from which nonresidents could ordinarily be excluded. The doorway did not function as the asylum of the home—it was instead a hybrid private-public space in which a person did not have the same reasonable expectation of seclusion and refuge from the outside world (see also People v Reynoso, 2 NY3d 820 [2004] [defendant in doorway, as opposed to inside apartment, may be arrested without a warrant]).

Indeed, the Penal Law and its common-law history reflect the concept behind the castle doctrine that inside one’s home a person is in a unique haven from the outside world. While a person is not bound to abandon one’s home, requiring a person standing in the doorway to step inside the apartment to avoid a violent encounter is not the equivalent of mandating retreat from one’s home. Here, defendant need only have closed the door, or pulled up the drawbridge, to be secure in his castle.

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

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed.

      . In reviewing defendant’s appeal, we consider the evidence in the light most favorable to defendant (see People v Padgett, 60 NY2d 142, 144 [1983]).

      . Reflecting the principle that the home is a unique place in which one may use force to prevent the commission of a crime, the Penal Law also authorizes a person to use deadly physical force to protect the dwelling from a burglary (see Penal Law § 35.20 [3]).

      . Having concluded that the trial court correctly charged justification, we have no occasion to address the Appellate Division’s alternative holding that “if there were any error in the refusal to give the requested charge, such error would have been harmless in view of the overwhelming evidence that defendant unjustifiably attacked the victim outside of defendant’s apartment, which evidence leaves no significant probability, or even a reasonable possibility, that the verdict would have been different had the requested charge been given” (6 AD3d 236, 237 [2004]; compare People v Jones, 3 NY3d at 497 [because the proof at trial did not support defendant’s requested justification charge, the court’s refusal to instruct that defendant had no duty to retreat was harmless], with People v McManus, 67 NY2d 541, 549 [1986] [“if any reasonable view of the evidence would permit the fact finder to decide that the conduct of the accused was justified, an instruction on the defense should be given . . . (R)efusal to charge that the People must disprove the alleged justification is reversible error”]).

      . Depending on the facts, the castle doctrine has been applied to areas immediately surrounding the home, such as a porch or yard (see Dressler, Understanding Criminal Law § 18.02 [C] [3], at 228 [3d ed]; see also State v Blue, 356 NC 79, 89, 565 SE2d 133, 139-140 [2002] [a porch may be part of the dwelling for self-defense purposes because “the occupants of a home may engage in many of the same activities on the porch that they enjoy in the more protected areas . . . such as eating, reading, sleeping, entertaining, and relaxing”]; Doswell v State, 34 Ala App 546, 42 So 2d 480 [1949] [defendant in garden—which was part of the house’s curtilage—was entitled to jury instruction that he had no duty to retreat]).
      As we also noted in Hernandez (98 NY2d 175 [2002]), different provisions govern what constitutes a dwelling for purposes of justification in defensive use of physical force in a burglary under Penal Law § 35.20.


text:
    [827 NE2d 762, 794 NYS2d 704]
    The Argo Corporation et al., Appellants, v Greater New York Mutual Insurance Company, Respondent.
    Argued February 9, 2005;
    decided April 5, 2005

      POINTS OF COUNSEL

      Nicoletti Hornig Campise Sweeney & Paige, New York City (David R. Hornig and Julia M. Moore of counsel), for appellants.
    I. Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]) applies to this action and requires prejudice. (Mark A. Varrichio & Assoc, v Chicago Ins. Co., 312 F3d 544; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; American Home Assur. Co. v International Ins. Co., 90 NY2d 433.) II. The time is ripe for New York to abandon its strict adherence to the outdated no-prejudice rule. (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; American Home Assur. Co. v International Ins. Co., 90 NY2d 433.)

      Thomas D. Hughes, New York City, and Richard C. Rubinstein for respondent.
    I. This Court should not change the rule that commercial-liability insurers need not show prejudice when disclaiming coverage for late notice of the occurrence, claim, or suit because this rule is based on sound principles of contract law and construction, has not prejudiced insureds or advantaged insurers, and is the only equitable rule to apply. (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; American Tr. Ins. Co. v Sartor, 3 NY3d 71; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Greenfield v Philles Records, 98 NY2d 562; Graf v Hope Bldg. Corp., 254 NY 1; Matter of Davis v Block & Smith, 297 NY 20; White v City of New York, 81 NY2d 955; American Home Assur. Co. v International Ins. Co., 90 NY2d 433.) II. If there is a prejudice requirement in the commercial-liability contract, then the insured should have the burden of proof on this issue for both contractual and public policy reasons. (Allis-Chalmers Mfg. Co. v Malan Constr. Corp., 30 NY2d 225; American Tr. Ins. Co. v Sartor, 3 NY3d 71; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436.)

      Anderson Kill & Olick, P.C., New York City (John B. Berringer and Dennis J. Artese of counsel), for Catholic Health Services of Long Island, amicus curiae.
    I. The overwhelming majority of states apply the notice-prejudice rule to late notice. (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; State

      Farm, Mut. Auto. Ins. Co. v Sparacio, 297 AD2d 284; New York Mut. Underwriters v Kaufman, 257 AD2d 850; Mark A. Varrichio & Assoc, v Chicago Ins. Co., 99 NY2d 545, 328 F3d 50; Ellis v Columbian Natl. Life Ins. Co., 270 App Div 143, 296 NY 594; Press Publ. Co. v General Acc. Fire & Life Assur. Corp. of Perth, Scotland, 160 App Div 537, 217 NY 648; McCormack v Security Mut. Life Ins. Co., 161 App Div 33, 220 NY 447; Rockaway Park Series Corp. v Hollis Automotive Corp., 206 Misc 955, 285 App Div 1140.) II. The insurance industry’s objections to the notice-prejudice rule are unjustified and should be rejected. (American Home Prods. Corp. v Liberty Mut. Ins. Co., 565 F Supp 1485; Marine Basin Co. v Northwestern Fire & Mar. Ins. Co., 256 NY 306; LeCorre v Bijesse Belford Dolewski & DeMicco, 269 AD2d 569.)

      Hiscock & Barclay, LLP, Albany (Mark W. Blanchfield of counsel), for New York Insurance Association, Inc., amicus curiae.
    I. Requiring insurers to show prejudice to enforce the reasonable notice condition would be a complete sea change in New York law. (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; D'Aloia v Travelers Ins. Co., 85 NY2d 825; People v Hobson, 39 NY2d 479; Heyert v Orange & Rockland Util., 17 NY2d 352; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842.) II. The policy reasons behind a no-prejudice rule still exist with respect to notice of the circumstances of the claim. (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; American Tr. Ins. Co. v Sartor, 3 NY3d 71; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854.) III. The case law from other states is inconsistent with New York’s legal scheme. (Sablosky v Gordon Co., 73 NY2d 133; Morris v Snappy Car Rental, 84 NY2d 21; American Tr. Ins. Co. v Sartor, 3 NY3d 71; 2423 Mermaid Realty Corp. v New York Prop. Ins. Underwriting Assn., 142 AD2d 124; Dyno-Bite, Inc. v Travelers Cos., 80 AD2d 471; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487.)

      Rivkin Radler LLP, Uniondale (Evan H. Krinick and Alan C. Eagle of counsel), and Wiley Rein & Fielding LLP, Washington, D.C. (Laura A. Foggan and John C. Yang of counsel), for Complex Insurance Claims Litigation Association, amicus curiae.
    I. New York consistently has adhered to the no-prejudice rule. (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; AXA Mar. & Aviation Ins. [UK] Ltd. v Seajet Indus. Inc., 84 F3d 622; Maroney v New York Cent. Mut. Fire Ins. Co., 10 AD3d 778; American Home Assur. Co. v International Ins. Co., 90 NY2d 433; Fisher v Hanover Ins. Co., 288 AD2d 806; T & S Masonry v State Ins. Fund, 290 AD2d 308; Centenniel Ins. Co. v Hoffman, 265 AD2d 629; Nationwide Mut. Ins. Co. v Vivas, 267 AD2d 105; Matter of Allstate Ins. Co. v Kruger, 264 AD2d 443, 94 NY2d 755, 944.) II. Rationales for the no-prejudice rule are well established and applicable to the present facts. (Graf v Hope Bldg. Corp., 254 NY 1; First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630;. Greenfield v Philles Records, 98 NY2d 562; Matter of Southeast Banking Corp., 93 NY2d 178; Nichols v Nichols, 306 NY 490, 307 NY 677; Matter of Davis v Block & Smith, 297 NY 20; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Douglas v Knickerbocker Life Ins. Co., 83 NY 492; AXA Mar. & Aviation Ins. [UK] Ltd. v Seajet Indus. Inc., 84 F3d 622; Commercial Union Ins. Co. v International Flavors & Fragrances, Inc., 822 F2d 267.) III. The lower court properly declined to depart from the no-prejudice rule. (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; American Tr. Ins. Co. v Sartor, 3 NY3d 71; Steadfast Ins. Co. v Sentinel Real Estate Corp., 283 AD2d 44; Rekemeyer v State Farm Mut. Auto. Ins. Co., 7 AD3d 955, 3 NY3d 669, 608; Mark A. Varrichio & Assoc, v Chicago Ins. Co., 312 F3d 544; Cade & Saunders, P.C. v Chicago Ins. Co., 332 F Supp 2d 490; Green Door Realty Corp. v TIG Ins. Co., 329 F3d 282; Genesee Mgt. v Barrette, 4 AD3d 874; St. Charles Hosp. & Rehabilitation Ctr. v Royal Globe Ins. Co., 282 AD2d 593; Matter of Schulz v State of New York, 151 Misc 2d 594, 185 AD2d 596, 81 NY2d 336.)

      Dickstein Shapiro Morin & Oshinsky LLP, New York City (David L. Elkind, Edward Tessler and Elizabeth A. Sherwin of counsel), for KeySpan Corporation, amicus curiae.
    The rationale underlying the no-prejudice rule does not justify allowing insurance companies to evade coverage for claims they would have neither defended nor covered no matter when they received notice of the suit or claim. (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; Jacob & Youngs v Kent, 230 NY 239; American Home Assur. Co. v International Ins. Co., 90 NY2d 433; Westview Assoc, v Guaranty Natl. Ins. Co., 95 NY2d 334; Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169; Incorporated Vil. of Cedarhurst v Hanover Ins. Co., 89 NY2d 293; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Roofers’ Joint Training, Apprentice & Educ. Comm. of W. N.Y. v General Acc. Ins. Co. of Am., 275 AD2d 90; Ansonia Assoc. Ltd. Partnership v Public Serv. Mut. Ins. Co., 257 AD2d 84.)

      Athari Law Office, Utica (Mo Athari of counsel), for Athari Law Office, amicus curiae.
    I. The exception carved out to protect insurers in New York has failed to justify the rationale, as a matter of law, for not applying the substantial or actual prejudice rule as a factor in considering late notice. (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; Seals v Powell, 236 AD2d 700.) II. If this Court allows the substantial or actual prejudice standard to be considered as an additional factor, the burden of proof to show prejudice should be on the insurer.

      Kirkpatrick & Lockhart Nicholson Graham LLP, New York City (Gerald A. Novack of counsel), Val Washington, Kirkpatrick & Lockhart Nicholson, Graham LLP, Pittsburgh, Pennsylvania (Thomas E. Birsic and Paul K. Stockman of counsel), and Edgar Snyder & Associates, LLC, Pittsburgh, Pennsylvania (James D. Belliveau and Michael H. Rosenzweig of counsel), for Crucible Materials Corporation and others, amici curiae.
    The court should extend the holding in Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]) to apply to general liability insurance, requiring that insurers be prejudiced before coverage is forfeited due to late notice. (American Home Assur. Co. v International Ins. Co., 90 NY2d 433; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 13 AD3d 227; Carlino v Lumbermens Mut. Cas. Co., 74 NY2d 350; Matthews v American Cent. Ins. Co., 154 NY 449; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 49 NY2d 924; Eagle Star Ins. Co. v International Proteins Corp., 45 AD2d 637; Hanover Ins. Co. v Losquadro, 157 Misc 2d 1014.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue in this case is whether a primary insurer can disclaim coverage based solely upon a late notice of lawsuit or must show prejudice. We hold that, under the circumstances of this case, plaintiffs’ late notice was unreasonable as a matter of law, that the Appellate Division correctly applied Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]) and that the insurer need not show prejudice.

On January 2, 1997, Igo Maidanek slipped and fell on ice on the sidewalk adjacent to 137-01 83rd Avenue in Kew Gardens, New York. Maidanek was a tenant of the premises. The property was owned by Henry Moskowitz and managed by two companies owned by Moskowitz, Argo Corporation and Martinique Realty Associates (Argo).

On December 27, 1999, Maidanek brought suit for personal injuries against Argo by serving a summons and complaint on the New York Secretary of State. Argo acknowledged receipt of the summons and complaint by signing a return-receipt dated February 28, 2000. On November 10, 2000, Argo was served with a default judgment. On February 13, 2001, Argo received a notice of entry of the default judgment and of the scheduling of a hearing on that judgment. On February 21, 2001, Argo received service of a note of issue for trial readiness.

Argo notified Greater New York Mutual Insurance Company (GNY), its commercial liability insurance carrier, on May 2, 2001. On June 4, 2001, GNY disclaimed coverage because of the late notice of the lawsuit and occurrence, which, according to GNY, was a “condition precedent” to coverage under the insurance policy.

In January 2003, Argo brought a declaratory judgment action against GNY challenging GNY’s disclaimer. GNY responded with a motion to dismiss for failure to comply with the contract provision which required timely notice to the carrier of the occurrence and of the lawsuit against the insured. The contract required notice “as soon as practicable.”

Supreme Court agreed that Argo failed to comply with a condition precedent to coverage under the contract, stating,

“Plaintiffs’ policy required them to ‘see to it that we [the insurer] are notified as soon as practicable of an “occurrence” or an offense which may result in a claim.’ Plaintiffs never notified defendant of Maidanek’s suit until 14 months after service of the complaint upon the Secretary of State as their agent, until 6 months after service of the default motion upon plaintiffs, until more than 3 months after default was entered and until almost 3 months after service of the Note of Issue upon plaintiffs.”

As a result, Supreme Court granted defendant’s motion to dismiss for failure to timely notify the insurer.

The Appellate Division affirmed, stating:

“[T]he insureds are unable to provide an excuse for their failure to comply with the policy’s notice provisions.
“Unlike Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), this is not a case where the carrier had prior notice of the claim before the action was commenced.” (1 AD3d 264, 265 [2003] [citations omitted].)

We granted leave to appeal and now affirm.

For years the rule in New York has been that where a contract of primary insurance requires notice “as soon as practicable” after an occurrence, the absence of timely notice of an occurrence is a failure to comply with a condition precedent which, as a matter of law, vitiates the contract (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440-443 [1972]) [failure to notify in a timely manner allowed insurer to disclaim coverage]). No showing of prejudice is required (id.). Strict compliance with the contract protects the carrier against fraud or collusion (id.); gives the carrier an opportunity to investigate claims while evidence is fresh; allows the carrier to make an early estimate of potential exposure and establish adequate reserves and gives the carrier an opportunity to exercise early control of claims, which aids settlement (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 582 [1992]).

We have applied the no-prejudice rule in various contexts in recent years: supplementary underinsured motorist (SUM) insurance (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 495-496 [1999]; cf. Matter of Brandon, and Rekemeyer v State Farm, Mut. Auto. Ins. Co., 4 NY3d 468 [2005]) and excess insurance (American Home Assur. Co. v International Ins. Co., 90 NY2d 433, 442-443 [1997]). We have held, however, that the rule enunciated in Security Mutual does not apply to reinsurance and a reinsurer must show prejudice before it can be relieved of its obligations to perform under a contract (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 582-584 [1992]).

In Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), we again departed from the general no-prejudice rule and held that the carrier must show prejudice before disclaiming based on late notice of a lawsuit in the SUM context (see 97 NY2d 491, 498 [2002], supra). Under the facts of Brandon, the carrier received timely notice of claim but late notice of a lawsuit (see id. at 494-495). We were unwilling to extend the no-prejudice exception in regard to late notice of a lawsuit because “unlike most notices of claim—which must be submitted promptly after the accident, while an insurer’s investigation has the greatest potential to curb fraud—notices of legal action become due at a moment that cannot be fixed relative to any other key event, such as the injury, the discovery of the tortfeasor’s insurance limits or the resolution of the underlying tort claim” (see id. at 498).

Brandon did not abrogate the no-prejudice rule and should not be extended to cases where the carrier received unreasonably late notice of a claim. The facts here, where no notice of claim was filed and the first notice filed was a notice of lawsuit, are distinguishable from Brandon where a timely notice of claim was filed, followed by a late notice of lawsuit, and distinguishable from Rekemeyer, where an insured gave timely notice of the accident, but late notice of a SUM claim. Argo was notified of the lawsuit against it in February 2000 but did not notify GNY until May 2001. The burden of establishing that the delay was not unreasonable falls on the insured (see U.S. Underwriters Ins. Co. v A & D Maja Constr., Inc., 160 F Supp 2d 565, 569 [SD NY 2001]).

Argo admits that Maidanek filed the lawsuit against it in late 1999, and that it received notice of the claim in early 2000. Argo further admits that its notice to GNY was late but argues that GNY has not shown prejudice as a result of this late notice. Argo notified GNY 14 months after it was first served with the lawsuit, and six months after a default judgment was entered against it. Argo asks this Court to extend the Brandon “prejudice analysis to notice of suit in commercial policies where the notice was admittedly late.”

The rationale of the no-prejudice rule is clearly applicable to a late notice of lawsuit under a liability insurance policy. A liability insurer, which has a duty to indemnify and often also to defend, requires timely notice of lawsuit in order to be able to take an active, early role in the litigation process and in any settlement discussions and to set adequate reserves. Late notice of lawsuit in the liability insurance context is so likely to be prejudicial to these concerns as to justify the application of the no-prejudice rule. Argo’s delay was unreasonable as a matter of law and thus, its failure to timely notify GNY vitiates the contract. GNY was not required to show prejudice before declining coverage for late notice of lawsuit.

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

Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur; Chief Judge Kaye taking no part.

Order affirmed, with costs.

      . Previously, “GNY issued a commercial-package insurance policy to Henry Moskowitz that included commercial-liability insurance coverage for some 35 buildings in New York City.” (Respondent’s brief at 3.)

      . “A condition precedent is ‘an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ ” (Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995] [citations omitted]).

      . “Section IV—Commercial General Liability Conditions . . .
      “2. Duties in The Event of Occurrence, Offense, Claim Or Suit
      “a. You must see to it that we are notified as soon as practicable of an ‘occurrence’ or an offense which may result in a claim’. To the extent possible, notice should include:
      “(1) How, when and where the ‘occurrence’ or offense took place;
      “(2) The names and addresses of any injured person and witnesses; and

        “(3) The nature and location of any injury or damage arising out of the ‘occurrence’ or offense.
      “b. If a claim is made or ‘suit’ is brought against any insured, you must:
      “(1) Immediately record the specifics of the claim or ‘suit’ and the date received; and
      “(2) Notify us as soon as practicable.
      “You must see to it that we receive written notice of the claim or ‘suit’ as soon as practicable.
      “c. You and any other involved insured must:
      “(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with tbe claim or ‘suit’;
      “(2) Authorize us to obtain records and other information;
      “(3) Cooperate with us in the investigation or settlement of the claim or defense against the ‘suit’; and
      “(4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply.
      “d. No insured will, except at that insured’s own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.” (Emphasis added.)