author: Read, J.

text:
    [801 NE2d 827, 769 NYS2d 451]
    In the Matter of United Federation of Teachers, Local 2, AFT, AFL-CIO, Appellant, v Board of Education of the City School District of the City of New York, Respondent.
    Argued October 21, 2003;
    decided November 20, 2003

      POINTS OF COUNSEL

      Stroock & Stroock & Lavan LLP, New York City (Charles G. Moerdler, Alan M. Klinger and Faith A. Kaminsky of counsel), James R. Sandner, Lena M. Ackerman and Carol L. Gerstl, for appellant.
    I. The Appellate Division erred in vacating the arbitration award on public policy grounds. (Matter of Jaidan Indus. v M.A. Angeliades, Inc., 97 NY2d 659; Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898; Matter of Middle Country Teachers Assn. v Middle Country Cent. School Dist., 231 AD2d 570, 89 NY2d 806; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of Three Vil. Teachers’ Assn. v Three Vil. Cent. School Dist., 128 AD2d 626, 70 NY2d 608; Matter of Riverhead Cent. School Dist. v Riverhead Cent. Faculty Assn., 140 AD2d 526, 72 NY2d 810; Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33; City of New York v

      Uniformed Firefighters Assn., Local 94, IAFF, AFL-CIO, 58 NY2d 957.) II. The Appellate Division erroneously substituted its own judgment for that of the arbitrator. (United Steelworkers of Am. v Warrior & Gulf Nav. Co., 363 US 574; Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of New York City Tr. Auth. v Transport Workers of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of Sprinzen, 46 NY2d 623; Board of Educ., Bellmore-Merrick Cent. High School Dist. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Board of Educ. of Union Free School Dist. No. 3 v Associated Teachers of Huntington, 30 NY2d 122; Associated Teachers of Huntington v Board of Educ. of Union Free School Dist. No. 3, 33 NY2d 229.) III. The Appellate Division’s holding that the arbitrator exceeded her authority is merely a determination that the arbitrator came to an erroneous conclusion and, as such, is an improper basis for vacating the award. (Maross Constr. v Central N.Y. Regional Transp. Auth., 66 NY2d 341.)

      Michael A. Cardozo, Corporation Counsel, New York City (Scott Shorr and Barry P. Schwartz of counsel), for respondent.
    I. Nothing in the United Federation of Teachers’ brief erodes the strong public policy, which the Appellate Division properly applied, barring arbitral interference with the Board of Education’s assessment of teacher qualifications. (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732; Matter of Meehan v Nassau Community Coll., 152 AD2d 313; Three Vil. Teachers’ Assn. v Three Vil. Cent. School Dist., 128 AD2d 626, 70 NY2d 608; Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33; Matter of Riverhead Cent. School Dist. v Riverhead Cent. Faculty Assn., 140 AD2d 526, 72 NY2d 810; Matter of Monroe-Woodbury Cent. School Dist. v Monroe-Woodbury Teachers Assn., 105 AD2d 786, 65 NY2d 604; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898.) II. United Federation of Teachers has failed to undermine the Appellate Division’s determination that the arbitrator violated public policy by replacing the Board of Education’s teacher selection decision with her own. (Three Vil. Teachers’

      Assn. v Three Vil. Cent. School Dist., 128 AD2d 626; Matter of Riverhead Cent. School Dist. v Riverhead Cent. Faculty Assn., 140 AD2d 526; Matter of Sprinzen, 46 NY2d 623; Maross Constr. v Central N.Y. Regional Transp. Auth., 66 NY2d 341; Board of Educ., Bellmore-Merrick Cent. High School Dist. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167.) III. United Federation of Teachers ignores the Appellate Division’s rationale for concluding that the arbitrator also exceeded an express limitation on her authority. (Sweeney v Herman Mgt., 85 AD2d 34; Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311; Kings Park Classroom Teachers Assn. v Kings Park Cent. School Dist., 100 AD2d 929; Matter of City of New York v Davis, 146 AD2d 480; Matter of New York City Tr. Auth. v Patrolmen’s Benevolent Assn. of N.Y. City Tr. Police Dept., 129 AD2d 708, 70 NY2d 719.)
   OPINION OF THE COURT

Read, J.

In this appeal we are asked whether an arbitrator acted properly when she determined that respondent Board of Education of the City of New York (the Board) arbitrarily selected teachers for an after-school reading program, and ordered the Board to provide a position to a qualified applicant whom the principal had passed over. We conclude that the award did not violate public policy and the arbitrator did not exceed her authority under the collective bargaining agreement.

I.

In September 1998 New York City School District 26 posted an announcement for anticipated vacancies in the position of “Per Session Teacher—Project Read After-School Program” in its elementary schools. The announcement set forth selection criteria, including a preference for teachers holding “Early Childhood/Reading License[s].”

Linda Feil applied for this position. While she did not hold either of the preferred licenses, she did have a “common branch” license and 26 years of primary school teaching experience, most recently as a third-grade teacher at PS 173. In addition, she had taught as a substitute teacher in Project Read and another reading program at PS 173.

The principal of PS 173 filled six openings in Project Read from the pool of applicants who responded to the posting. He did not select Feil, instead offering her work as a “primary substitute.” He also advised her that other district schools had inquired “if any of our excellent teachers would be available to teach Project Read in those schools.” He asked her to let him know right away if she was interested in this possibility. Of the six teachers whom the principal selected for a position in Project Read, two had the preferred licenses and less seniority than Feil. The remaining four did not have the preferred licenses; two had more seniority than Feil, two had less. The parties do not dispute that the six selected teachers are qualified; the parties do not dispute that Feil is qualified.

Feil’s union, appellant United Federation of Teachers (UFT), filed a grievance in Feil’s behalf under articles fifteen and twenty of the collective bargaining agreement (CBA). Article twenty-two of the CBA prescribes a four-stage grievance process, culminating in arbitration if the grievance is not otherwise resolved.

During a Step 2 grievance conference, UFT argued that Feil had been improperly denied a position in Project Read because she was qualified and more senior than two of the successful applicants. The principal replied that while he believed that Feil was a satisfactory teacher, the teachers he selected had, in his judgment and based on their applications, a greater level of specific teaching experience, which he detailed. He acknowledged that he took into consideration his personal observations of the various applicants in the classroom during his 15 years as principal. The deputy superintendent denied the grievance. He found that while satisfactory teaching and seniority were compelling selection criteria, they were not required by the posting and did not control the selection process for Project Read, a specialized program.

After a Step 3 hearing, the Chancellor’s representative found that the applicants were not equally qualified for the positions, and denied the grievance. UFT filed a demand for arbitration. The Board did not move to stay the arbitration, and so the grievance was submitted to an arbitrator jointly selected by UFT and the Board pursuant to the CBA.

The arbitrator accepted UFT’s formulation of the issue:

“Did the Board violate Articles Fifteen and Twenty of the 1995-2000 collective bargaining agreement when it denied Grievant Linda Feil, a teacher at PS. 173, the per session position of After-School Project Teacher at PS. 173? If so, what shall be the remedy?”

The arbitrator rejected UFT’s argument that the Project Read selection process was governed by the seniority provisions in article fifteen of the CBA entitled “Rates of Pay and Working Conditions of Per Session Teachers.” Instead, she found that the matter involved the application of article twenty of the CBA, entitled “Matters Not Covered.”

The arbitrator also found that while the CBA contained no selection criteria for Project Read, “[t]he selection of teachers for positions in programs which are not covered by the Agreement [is] governed by managerial discretion.” The arbitrator determined that her power to decide whether the Board’s exercise of this discretion was arbitrary or capricious derived from article twenty-two (C) of the CBA.

The arbitrator emphasized that Feil was well qualified for the position, and had more seniority than two of the teachers who were selected for the program. She recited testimony from another teacher who had been rejected for a position in Project Read the previous year because she was the most junior applicant. She discredited the principal’s testimony that the preferred license was a governing factor because four of the successful applicants did not hold this license. She found that there was no documentary evidence supporting the principal’s position that the successful applicants were better qualified for the positions than Feil, and concluded that the “selection process was arbitrary in nature.”

The award, issued on August 9, 1999, found that the Board violated article twenty of the CBA by acting in an arbitrary manner when selecting teachers for positions in Project Read. The arbitrator directed the Board to place Feil in Project Read at PS 173 for the 1999-2000 school year, and to award her back pay.

The Board appointed Feil to the position, but resisted the back pay award. Pursuant to CPLR article 75, UFT moved in Supreme Court to confirm the award. The Board cross-moved to vacate under CPLR 7511 (b) (1) (iii), arguing that the arbitrator exceeded her authority. Supreme Court confirmed the award and denied the Board’s cross motion. The Appellate Division unanimously reversed, vacating the award and holding that “this award violates public policy by impermissibly infringing on the nondelegable responsibility of the public school system to maintain educational standards” (298 AD2d 60, 61-62 [1st Dept 2002]). As an alternative basis for reversal, the Appellate Division found that the award “exceeded the arbitrator’s power” under the CBA (id. at 62).

II.

We begin our analysis by determining which of the parties’ arguments are subject to our review. We conclude, as the Appellate Division did, that by failing to move to stay and participating in the arbitration, the Board waived its right to seek vacatur of the award on the basis that the parties did not agree to arbitrate disputes arising out of Project Read. We further conclude that the Board’s actions did not forfeit its right to seek vacatur of the award on public policy grounds.

The role of public policy in restricting an arbitrator’s power to resolve disputes arises at two distinct points on the arbitration continuum. It first appears as a ground for obtaining a stay of arbitration when a party challenges the arbitrability of a dispute. It reappears as a ground for vacating the award as being made in excess of the arbitrator’s powers.

In Matter of City of Johnstown (Johnstown Police Benevolent Assn.) (99 NY2d 273 [2002]), we stated a two-part test for determining the arbitrability of a dispute: the “did-they-agree-to-arbitrate” prong, which requires that we examine the agreement to determine what issues the parties agreed to submit to arbitration; and the “may-they-arbitrate” prong, which asks “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” (99 NY2d at 278 [citations omitted]).

Because arbitrability is a threshold question going to the arbitrator’s power to resolve the dispute, a party can seek judicial intervention to determine whether the dispute is arbitrable before consenting to arbitration. Moreover, the CPLR requires that in order to raise the “did-they-agree-to-arbitrate” prong of arbitrability in a motion to vacate, a party must move to stay before participating in arbitration (compare CPLR 7511 [b] [1] with CPLR 7511 [b] [2]). Of course, a party may choose not to move to stay arbitration for a variety of legitimate economic or tactical reasons. But with forbearance comes risk: a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place (see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583 [1977]).

By contrast, a party is not required to raise the “may-they-arbitrate” prong on a motion to stay, and may later seek to vacate an award as violative of public policy. Indeed, while public policy may be raised on a motion to stay, it can also be raised for the first time on a motion to vacate (see Hirsch v Hirsch, 37 NY2d 312, 315 [1975] [“(A) challenge to the arbitrability of an issue on public policy grounds may be made either on an application for a stay of arbitration . . . (or) on a motion to vacate the award” (citations omitted)]; see also Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 373 [1997]).

We next consider whether the award violates public policy and whether the arbitrator exceeded her powers under the CBA.

III.

An arbitration award may be vacated on three narrow grounds: “it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, 37 [1991] [citations omitted]). Only the public policy and enumerated powers grounds are disputed here.

As we recently stated, the scope of the public policy exception to an arbitrator’s power to resolve disputes is extremely narrow (see Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 6-7 [2002] [“(J)udicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships, and the correlative, expansive power of arbitrators to fashion fair determinations of the parties’ rights and remedies”]). Moreover, “judicial restraint under the public policy exception is particularly appropriate in arbitrations pursuant to public employment collective bargaining agreements” (id. at 7).

In Transport Workers, we established a two-prong test for determining whether an arbitration award violates public policy. First, where a court can conclude “without engaging in any extended factfinding or legal analysis” that a law “prohibit[s], in an absolute sense, [the] particular matters [to be] decided ... by [arbitration]” (99 NY2d at 8, 9 [citations and emphasis omitted]), an arbitrator cannot act. Second, an arbitrator cannot issue an award where “the award itself ‘violate [s] a well-defined constitutional, statutory or common law of this State’ ” (id. at 11 [citation omitted]).

Transport Workers spoke to whether two awards should be vacated on public policy grounds because they improperly infringed on the employer’s statutory duty “[t]o exercise all requisite and necessary authority to manage, control and direct the maintenance and operation of transit facilities . . . for the convenience and safety of the public” (99 NY2d at 8, quoting Public Authorities Law § 1204 [15]). We upheld the awards, finding that Public Authorities Law § 1204 (15) contained only a general responsibility that did not prohibit delegation of the duty “in an absolute sense” (99 NY2d at 9), and that no other well-defined law or policy barred the awards.

Citing Matter of Cohoes City School Dist. v Cohoes Teachers Assn. (40 NY2d 774 [1976]), Matter of Candor Cent. School Dist. (Candor Teachers Assn.) (42 NY2d 266 [1977]) and Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn. (49 NY2d 732 [1980]), the Board argues that this award should be vacated because public policy prohibits it from bargaining away its vested responsibility to determine if a candidate is qualified for a teaching position. We have never held, however, that an award violates public policy if it affects teacher qualifications (see Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 NY2d 905, 907 [1987] [“Even assuming that the School District must remain the ultimate judge of an applicant’s qualifications . . .” (emphasis added)]). Moreover, even if we had, this “policy” is not triggered by the facts here, as the award did not force the Board to hire or select a nonqualified candidate for a teaching position. Rather, the award overruled the Board’s decision not to select a particular qualified candidate where the arbitrator found the selection process arbitrary and capricious (see Matter of Middle Country Teachers Assn. v Middle Country Cent. School Dist., 231 AD2d 570, 572 [2d Dept 1996], Iv denied 89 NY2d 806 [1997] [declining to vacate award in favor of grievant as against public policy where grievant, the “weakest qualified applicant,” was nonetheless qualified]).

The Board further relies on Honeoye for the principle that public policy prohibits a school board from “surrender [ing] through collective bargaining a responsibility vested in the board in the interest of maintaining adequate standards in the classrooms” (49 NY2d at 734 [emphasis added]). We have never held, however, that the interest of “maintaining adequate standards” is, standing alone, sufficient to vacate an award as violative of public policy (see Cohoes City School Dist., 40 NY2d at 775-778 [public policy bars delegation of tenure decisions]; Candor Cent. School Dist., 42 NY2d at 271 [public policy bars delegation of right to terminate a probationary appointment at the close of the probationary period]; Honeoye, 49 NY2d at 733 [public policy bars delegation of responsibility for implementing layoffs]). This maintenance-of-adequate-standards principle is akin to the statute we reviewed in Transport Workers. It is a general responsibility and does not “prohibit, in an absolute sense,” an arbitrator from reviewing a school’s selection from among qualified candidates for an after-school position. It is only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated. The Board points to no such law applicable to the decision made here, and so cannot meet the second prong of the Transport Workers test.

Next, Matter of Three Vil. Teachers’ Assn. v Three Vil. Cent. School Dist. (128 AD2d 626 [2d Dept 1987], Iv denied 70 NY2d 608 [1987]), relied on by the Appellate Division below, does not control the outcome here. In Three Village, the Court found that the “school district’s ultimate responsibility to determine the qualifications required and preferred for a particular teaching position . . . and to determine whether a prospective applicant is possessed of those qualifications is a responsibility of the type that may not be bargained away, as it is central to the maintenance of adequate standards in the classroom” (128 AD2d at 627 [citation omitted]).

Importantly, the Three Village court found that the award violated Education Law § 2573 (9), which provides that no teacher “shall be appointed to the teaching force of a city who does not possess qualifications required under this chapter and under the regulations prescribed by the commissioner of education.” Here, the award does not impinge on the school’s responsibility to appoint qualified teachers to positions in the public schools, nor is Education Law § 2573 (9) even applicable. Three Village also involved a “past practice” that “permitted the school district a degree of discretion” in determining teacher qualifications (128 AD2d at 627).

Given the narrow scope of the public policy exception to an arbitrator’s powers, we decline to find that public policy has an interest in choosing from among qualified candidates for after-school teaching positions. The Board has provided no reason why public policy requires such a result. The question left open in Enlarged City School Dist. is not implicated on these facts, and so we leave its resolution for another day.

Finally, we also disagree with the Appellate Division’s alternative conclusion that the arbitrator exceeded the scope of her authority under the CBA. “[I]t is not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute” (Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v Barni, 51 NY2d 894, 895 [1980]). This is true “even where ‘the apparent, or even the plain, meaning of the words’ of the contract has been disregarded” (Maross Constr. v Central N.Y. Regional Transp. Auth., 66 NY2d 341, 346 [1985] [citation omitted]). In Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York (94 NY2d 321 [1999]), we refused to disturb an award, cognizant of the fact that “[a] court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice” (id. at 326 [citations omitted and emphasis added]).

The arbitrator determined that the dispute fell within the scope of article twenty of the CBA. She found that the principal’s decisionmaking process was arbitrary and capricious. These interpretations and factual findings appear highly debatable on this record; however, whether we agree with the arbitrator is beside the point. Further, the Board may not revive what is, in actuality, a challenge to arbitrability in another guise. By submitting to arbitration, the Board ran the risk that the arbitrator would find Project Read covered under some provision of the CBA, as she did, notwithstanding the Board’s position that Project Read positions were outside the agreement’s scope.

Having determined that the selection process for Project Read was encompassed within article twenty, the arbitrator had the authority under article twenty-two to find that the Board’s exercise of its discretion under this provision was arbitrary and capricious, and to fashion an appropriate remedy. In finding that the arbitrator had “couched her analysis of the case in procedural terms” but that her decision was really “directed at the substantive grounds on which the selection was made” (298 AD2d at 66), the Appellate Division went beyond the face of the award and substituted its judgment for the arbitrator’s. This was error.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order and judgment of Supreme Court reinstated.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Gbaffeo concur.

Order reversed, etc.

      . Article twenty provides that
      “[w]ith respect to matters not covered by this Agreement which are proper subjects for collective bargaining, the Board agrees that it will make no changes without appropriate prior consultation and negotiation with the Union. . . .
      “All existing determinations, authorizations, by-laws, regulations, rules, rulings, resolutions, certifications, orders, directives, and other actions, made, issued or entered into by the Board of Education governing or affecting salary and working conditions of the employees in the bargaining unit shall continue in force during the term of this Agreement, except insofar as change is commanded by law.”

      . Article twenty-two provides that
      “[grievances involving the exercise of Board discretion under any term of this Agreement may be submitted to arbitration to determine whether the provision was disregarded or applied in a discriminatory or arbitrary or capricious manner so as to constitute an abuse of discretion. . . .
      “The arbitrator shall limit his decision strictly to the application and interpretation of the provisions of this Agreement and he shall be without power or authority to make any decision: . . . “(2) Involving Board discretion under the provisions of this Agreement, . . . except that the arbitrator may decide in a particular case whether the provision was disregarded or applied in a discriminatory or arbitrary or capricious manner so as to constitute an abuse of discretion, namely whether the challenged judgment was based upon facts which justifiably could lead to the conclusion as opposed to merely capricious or whimsical preferences or the absence of supporting factual reasons.”

      . We note that our decision in Transport Workers postdates the Appellate Division’s decision here.

      . The other cases relied on by the Appellate Division are also distinguishable. Matter of Riverhead Cent. School Dist. of Towns of Riverhead, Southampton & Brookhaven v Riverhead Cent. Faculty Assn. (140 AD2d 526 [2d Dept 1988], Iv denied 72 NY2d 810 [1988]) involved an appointment to a coaching position, and relied on Enlarged City School Dist., without noting that this case left open the question of qualifications. Matter of Board of Educ. of Port Jefferson Union Free School Dist. v Port Jefferson Teachers’ Assn. (243 AD2d 468 [2d Dept 1997], Iv denied 91 NY2d 814 [1998]), also involving a coaching position, found that the grievance was not arbitrable, and cited to Riverhead as an alternative basis for staying arbitration. In Matter of Meehan v Nassau Community Coll. (152 AD2d 313 [2d Dept 1989], Iv dismissed 75 NY2d 1005 [1990]), leave to appeal was dismissed for nonfinality. Finally, Matter of South Country Cent. School Dist. (Paul) (103 AD2d 780 [2d Dept 1984]) relied on Matter of Sweet Home Cent. School Dist. v Sweet Home Educ. Assn. (58 NY2d 912, 914 [1983]), a case superseded by statute.


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [801 NE2d 840, 769 NYS2d 464]
    In the Matter of Edward A. Zelinsky et al., Appellants, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Argued October 15, 2003;
    decided November 24, 2003

      POINTS OF COUNSEL

      Edward A. Zelinsky, New Haven, Connecticut, and Doris Zelinsky, appellants pro se.
    I. On the facts of this case, the “convenience of the employer” doctrine caused double taxation in violation of both the Commerce Clause’s fair apportionment requirement and the due process prohibition on extraterritorial taxation. (Complete Auto Tr., Inc. v Brady, 430 US 274; Central Greyhound Lines, Inc. v Mealey, 334 US 653; Oklahoma Tax Commn. v Jefferson Lines, Inc., 514 US 175; Goldberg v Sweet, 488 US 252; Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124; City of New York v State of New York, 94 NY2d 577; AlliedSignal, Inc. v Director, Div. of Taxation, 504 US 768; Container Corp. of Am. v Franchise Tax Bd., 463 US 159; Asarco Inc. v Idaho State Tax Commn., 458 US 307; Oklahoma Tax Commn. v Chickasaw Nation, 515 US 450.) II. In sustaining the double tax assessed against petitioner under the employer convenience doctrine, the court below misapplied and disregarded the relevant constitutional decisions. (Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124; Oklahoma Tax Commn. v Jefferson Lines, Inc., 514 US 175; Matter of Speno v Gallman, 35 NY2d 256; Central Greyhound Lines, Inc. v Mealey, 334 US 653; Goldberg v

      Sweet, 488 US 252; Moorman Mfg. Co. v Bair, 437 US 267; Curry v McCanless, 307 US 357; Matter of Colleary v Tully, 69 AD2d 922.) III. New York’s income tax treatment of nonresident athletes confirms the validity of the taxpayers’ constitutional argument and belies the analysis of the court below including the benefits theory. (Matter of Speno v Gallman, 35 NY2d 256.) IV As a matter of policy, the employer convenience doctrine is historically obsolete and economically self-destructive.

      Eliot Spitzer, Attorney General, Albany (Julie S. Mereson, Caitlin J. Halligan and Andrew D. Bing of counsel), for Commissioner of Taxation and Finance, respondent.
    New York’s taxation of all of petitioner’s income from his New York City law professorship pursuant to the convenience of the employer rule is consistent with the Commerce Clause and the Due Process Clause. (Brady v State of New York, 80 NY2d 596, 509 US 905; New York ex rel. Cohn v Graves, 300 US 308; Lawrence v State Tax Commn., 286 US 276; Shaffer v Carter, 252 US 37; Oklahoma Tax Commn. v Chickasaw Nation, 515 US 450; International Harvester Co. v Wisconsin Dept. of Taxation, 322 US 435; Travis v Yale & Towne Mfg. Co., 252 US 60; Curry v McCanless, 307 US 357; Matter of Speno v Gallman, 35 NY2d 256; Matter of Phillips v New York State Dept. of Taxation & Fin., 267 AD2d 927, 94 NY2d 763.)

      Michael A. Cardozo, Corporation Counsel, New York City (Rita D. Dumain and Robert J. Firestone of counsel), for City of New York, amicus curiae.
    The State can tax all of petitioner’s salary derived from his employment at Cardozo Law School, regardless of whether he takes work home for his personal convenience. (Armco, Inc. v Hardesty, 467 US 638; Austin v New Hampshire, 420 US 656; Oklahoma Tax Commn. v Chickasaw Nation, 514 US 450; Quill Corp. v North Dakota, 504 US 298; Moorman Mfg. Co. v Bair, 437 US 267; Hans Rees’ Sons v North Carolina ex rel. Maxwell, 283 US 123; Wisconsin v J.C. Penney Co., 311 US 435; American Trucking Assns., Inc. v Scheiner, 483 US 266; West Lynn Creamery, Inc. v Healy, 512 US 186.)

      Richard Blumenthal, Attorney General, Hartford, Connecticut (Jonathon L. Ensign of counsel), for Richard Blumenthal, Attorney General of the State of Connecticut, amicus curiae.
    I. As a constitutional matter, Connecticut, the state of residence, has primary and plenary taxing authority over the income earned by its residents from services performed by them in Connecticut. II. The Commerce Clause requires that income taxes be fairly apportioned so as to avoid multiple taxation. (Central Greyhound Lines, Inc. v Mealey, 334 US 653; Commonwealth Edison Co. v Montana, 453 US 609; Complete Auto Tr., Inc. v Brady, 430 US 274.) III. The Due Process Clause requires that income taxes be fairly apportioned to prevent the extraterritorial taxation of nonresidents on income earned outside the borders of the taxing state. (Allied-Signal, Inc. v Director, Div. of Taxation, 504 US 768; Container Corp. of Am. v Franchise Tax Bd., 463 US 159; Asarco Inc. v Idaho State Tax Commn., 458 US 307.)

      McDermott, Will & Emery, New York City (Peter L. Faber of counsel), for The Partnership for New York City, amicus curiae.
    I. The convenience of the employer test makes employment tax withholding for nonresident workers impossible, because a single day in New York can result in 100% New York taxation, regardless of where services are actually performed. (Shaffer v Carter, 252 US 37; Matter of Burke v Bragalini, 10 AD2d 654; Matter of Burke v Murphy, 33 AD2d 581; Matter of Carpenter v Chapman, 276 App Div 634; Matter of Fass v Tax Commn. of State of N.Y., 68 AD2d 977, 50 NY2d 932; Matter of Kitman v State Tax Commn., 92 AD2d 1018; Matter of Simms v Procaccino, 47 AD2d 149; Matter of Tuohy v Procaccino, 51 AD2d 630; Matter of Speno v Gallman, 35 NY2d 256.) II. Applying the convenience of the employer test to nonresidents with a principal place of business outside New York may result in taxing income out of all proportion to the worker’s contacts with, and benefits from, New York State in violation of the United States Constitution. (Shaffer v Carter, 252 US 37; Hans Rees’ Sons v North Carolina ex rel. Maxwell, 283 US 123; Matter of British Land [Md.] v Tax Appeals Trib. of State of N.Y., 85 NY2d 139; Matter of Linsley v Gallman, 38 AD2d 367; Harrah Ind. School Dist. v Martin, 440 US 194; Matter of Colleary v Tully, 69 AD2d 922.)
   OPINION OF THE COURT

Chief Judge Kaye.

The taxpayer, a professor at Cardozo School of Law in New York City, contends that New York State may not constitutionally tax the entirety of his income because he performed some of his work at his home in Connecticut. We disagree and uphold the challenged tax.

I.

During the academic semesters in 1994 and 1995, petitioner-taxpayer commuted to New York three days each work week to teach his classes and meet with students. On the other two days, he stayed at home, where he prepared examinations, wrote student recommendations, and conducted scholarly research and writing. When school was not in session, and during his sabbatical leave in the fall semester of 1995, he worked exclusively at home.

On the 1994 and 1995 New York State nonresident income tax returns filed jointly by the taxpayer and his wife, he apportioned to New York the percentage of his total salary that reflected the number of days he commuted to the law school, allocating the remainder to Connecticut. The New York State Department of Taxation and Finance issued notices of deficiency for both years, maintaining that the entire law school salary was subject to taxation by New York. Applying the “convenience of the employer” test, the Department determined that the days that the taxpayer worked at his Connecticut residences should be counted as New York work days because he stayed at home for his own convenience and was not obligated by his employer to work outside New York. The portion of his salary that he allocated to the days he worked at home was also taxed by Connecticut, which did not provide a credit for the taxes assessed by New York.

Petitioner contested the deficiencies and also sought a refund for taxes paid on salary earned during his sabbatical leave, which he had forgotten to allocate to Connecticut. He claimed, as he does now, that application of the convenience of the employer test to him, resulting in New York’s taxation of salary earned on the days he worked at home, violates the Commerce and Due Process Clauses of the Federal Constitution. An Administrative Law Judge rejected those constitutional challenges, as did the Tax Appeals Tribunal. The taxpayer then commenced an article 78 proceeding in the Appellate Division, pursuant to Tax Law § 2016. The Appellate Division confirmed the administrative determination and dismissed the petition. We now affirm.

II.

Although a state may tax all the income of its residents, even income earned outside the taxing jurisdiction, it may constitutionally tax nonresidents only on their income derived from sources within the state (see Shaffer v Carter, 252 US 37, 57 [1920]). In New York, the income of nonresidents is thus taxed by the State if it is “derived from or connected with New York sources” (see Tax Law § 601 [e] [1]; § 631 [a] [l]). New York source income includes income attributable to a business, trade, profession or occupation carried on in this state (see Tax Law § 631 [b] [1] [B]). When a nonresident works partly in New York and partly in another state, the New York source income must be determined by apportionment and allocation according to regulations of the Commissioner of Taxation and Finance (see Tax Law § 631 [c]).

The Commissioner’s regulations generally provide that if a nonresident employee performs services for an employer both within and without New York State, the portion of his or her income derived from New York sources, and thus apportioned and allocated to New York, consists of the ratio of total days worked in New York to total days worked both in and out of the state (see 20 NYCRR 132.18 [a]). Such apportionment and allocation, however, are limited by the convenience of the employer test, which states that “any allowance claimed for days worked outside New York State must be based upon the performance of services which of necessity, as distinguished from convenience, obligate the employee to out-of-state duties in the service of his employer” (20 NYCRR 132.18 [a]). Accordingly, nonresidents employed in New York who work at home when not required to do so by their employers must treat those days as if they had been present at their workstation in New York, resulting in New York source income. That is the proposition being tested by the present appeal.

III.

Although the dormant Commerce Clause limits the power of states to erect barriers against interstate trade, a challenged tax will generally satisfy constitutional requirements if it “is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State” (Complete Auto Tr., Inc. v Brady, 430 US 274, 279 [1977]).

Here, the taxpayer challenges only the second prong of this four-part test—that the tax be fairly apportioned—conceding that the remaining three criteria are met. The central purposes of the fair apportionment requirement are “to ensure that each State taxes only its fair share of an interstate transaction” (Goldberg v Sweet, 488 US 252, 260-261 [1989]) and to “minimize the likelihood that an interstate transaction will be improperly burdened by multiple taxation” (Tennessee Gas Pipeline Co. v Urbach, 96 NY2d 124, 133 [2001]).

A tax is fairly apportioned if it is both internally and externally consistent. To be internally consistent, the tax must be structured so that if every state were to impose an identical tax, no multiple taxation would result. Here, the taxpayer concedes that if Connecticut were to adopt the convenience of the employer test, he would not be subject to double taxation, because in that case Connecticut, after initially taxing the worldwide income of its resident, would provide a credit for the taxes paid to New York for the days he worked at home for his own convenience. His sole claim, therefore, is that the challenged tax is not externally consistent.

External consistency looks “to the economic justification for the State’s claim upon the value taxed, to discover whether a State’s tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State. . . . [T]he threat of real multiple taxation . . . may indicate a State’s impermissible overreaching” (Oklahoma Tax Commn. v Jefferson Lines, Inc., 514 US 175, 185 [1995] [internal citations omitted]). External consistency is “essentially a practical inquiry” (Goldberg, 488 US at 264) for determining “whether the State has taxed only that portion of the revenues from the interstate activity which reasonably reflects the in-state component of the activity being taxed” (id. at 262). No particular apportionment formula or method need be used to satisfy constitutional requirements, “and when a State has chosen one, an objecting taxpayer has the burden to demonstrate ‘by clear and cogent evidence’ that ‘the income attributed to the State is in fact out of all appropriate proportions to the business transacted ... in that State, or has led to a grossly distorted result’ ” (Jefferson Lines, 514 US at 195, quoting Moorman Mfg. Co. v Bair, 437 US 267, 274 [1978] [other internal quotation marks omitted]).

IV

In applying these principles, we need decide only whether the convenience of the employer test is constitutional as applied to the facts of this case.

The convenience test was originally adopted to prevent abuses arising from commuters who spent an hour working at home every Saturday and Sunday and then claimed that two sevenths of their work days were non-New York days and that two sevenths of their income was thus non-New York income, and either free of tax (if the state of their residence had no income tax) or subject to a lower rate than New York’s. In the present case, the taxpayer’s efforts to reduce the amount of tax owed to New York on his New York source income earned during the work week raise similar concerns.

We note at the outset that many busy professionals, at the conclusion of a full day, routinely bring work home for the evenings or weekends. Even when undertaken by an out-of-state commuter such as petitioner, this work cannot transform employment that takes place wholly within New York into an interstate business activity subject to the Commerce Clause. Cardozo Law School provides educational services to its students in New York City, which is where the taxpayer performs the primary duties of his occupation—teaching classes and meeting with students. The work he chooses to do at home is thus inextricably intertwined with the business of his New York law school, and cannot convert his employer’s New York business into an interstate one when Cardozo did not employ him to carry out any of the school’s business activities in Connecticut.

The taxpayer’s reliance on City of New York v State of New York (94 NY2d 577 [2000]) is therefore misplaced. In that case, we rejected the claim that a tax on out-of-state commuters did not implicate the Commerce Clause, explaining that the commute of tens of thousands of out-of-state residents “into New York City on a daily basis, earning and spending part of their income in New York City, while paying the commuter tax” clearly impacted interstate commerce (94 NY2d at 597). The critical distinction between City of New York and the instant case, however, is that in City of New York, the tax at issue was imposed on the activity of commuting, not on the individual as a commuter. Here, the tax is imposed on income derived from the activity of teaching, not on the individual who is reading in his study in Connecticut.

Nor can petitioner’s circumstances be likened to the bus in Central Greyhound Lines of N.Y. v Mealey (334 US 653 [1948]), where the Supreme Court struck down an unapportioned gross receipts tax imposed on the sale of transportation services between points within New York because the bus traveled in large part over routes using out-of-state highways. In Central Greyhound, the risk of multiple taxation imposed by each of the various states through which the bus of necessity passed unfairly burdened interstate commerce, which was clearly impacted by the interstate travel of the bus. Here, by contrast, all of petitioner’s teaching is accomplished in New York and his voluntary choice to bring auxiliary work home to Connecticut cannot transform him into an interstate actor.

“The dormant Commerce Clause protects markets and participants in markets, not taxpayers as such” (General Motors Corp. v Tracy, 519 US 278, 300 [1997]). The taxpayer’s crossing of state lines to do his work at home simply does not impact upon any interstate market in which residents and nonresidents compete so as to implicate the Commerce Clause. On these facts, the convenience of the employer test neither unfairly burdens interstate commerce nor discriminates against the free flow of goods in the marketplace. Nor does it result in differential treatment benefitting in-state interests at the expense of out-of-state interests. Rather, the convenience test serves merely to equalize tax obligations among residents and nonresidents, preventing nonresidents from manipulating their New York tax liability by choice of auxiliary work location in a manner unavailable to similarly situated New York resident employees. Since a New York resident would not be entitled to any special tax benefits for similar work performed at home, neither should a nonresident (see Matter of Speno v Gallman, 35 NY2d 256, 259 [1974]).

Allowing this taxpayer to allocate his income to Connecticut when he stays home to do his work in connection with his teaching activity would enable him to avoid paying taxes that his colleagues who do that work at home in New York—or at the law school—pay. The Constitution does not require that a nonresident who does not opt for the personal convenience of taking work home rather than traveling into work every day be taxed at a higher effective tax rate than one who does. The State need not subsidize such personal convenience, while at the same time discouraging commuting into New York City and facilitating erosion of the tax base.

Even presuming that petitioner’s work at home sufficiently impacts upon interstate business activity as to implicate the Commerce Clause, because the entirety of the taxpayer’s salary is derived from New York sources, New York’s tax on his nonresident income is fairly apportioned. As a law professor, the taxpayer is primarily engaged in the business of teaching. It is for this that Cardozo hired him and for this that he is paid. It is thus readily apparent that he is not paid his salary in exchange for working five days per week, or three, or seven. Nor is he paid an hourly or daily wage. As long as his work is completed, he receives his full salary, whether he completes his work during the three days he comes to the office, or at home, or on the weekend. If he finishes all his work during the three days he commutes to the law school, and stays home without working on the other two days, he is paid no less. And if he ends up working five days a week in addition to every weekend, he is paid no more. From the perspective of his employer, as long as he performs his teaching responsibilities as scheduled, it matters not when or where he performs his ancillary functions.

The taxpayer is able to earn his salary—all of it—because of the benefits he receives every day from New York. He benefits directly from an employment opportunity and an office here. He benefits from a salary on every day that he works, which he is able to earn entirely within this state if he so chooses. As the Appellate Division noted, even his scholarly writings, drafted at home, attach prominence to his position as a professor at Cardozo Law School. New York thus provides a host of tangible and intangible protections, benefits and values to the taxpayer and his employer, including police, fire and emergency health services, and public utilities. Petitioner’s election to absent himself from the locus of his New York employment does not diminish what New York provides in order to enable him to earn that income. New York may require contributions from him because he thus “realiz[ed] current pecuniary benefits under the protection of the government” (Shaffer v Carter, 252 US 37, 51 [1920]), and the tax imposed need not “bear an exact relation to the services actually provided to the individual taxpayer” (Matter of Tamagni v Tax Appeals Trib., 91 NY2d 530, 544 [1998]).

Nevertheless, petitioner maintains that a constitutional violation is evident because his income has been taxed by two jurisdictions. But the mere potential for or actual existence of double taxation does not automatically transgress the Commerce Clause if, as here, the challenged tax is in fact fairly apportioned. For as the Tax Appeals Tribunal recognized, it was his own choice to allocate his income that created the threat of double taxation, not the convenience rule.

In Tamagni, we upheld the application of New York’s resident income tax to statutory residents of this state who, as domiciliarios of New Jersey, were subject to resident income tax in New Jersey on certain income also taxed by New York. Since each tax was permissibly imposed under a different theory— New York validly taxed its statutory residents and New Jersey validly taxed its domiciliaries—the New York tax did not violate the Commerce Clause, even though its effect was double taxation. Similarly, in the instant case, New York has validly taxed the income of a nonresident derived from New York sources, while Connecticut has, as it may, taxed the income of its resident. “The multiple taxation placed upon interstate commerce by such a confluence of taxes is not a structural evil that flows from either tax individually, but it is rather the accidental incident of interstate commerce being subject to two different taxing jurisdictions” (Jefferson Lines, 514 US at 192 [citations and internal quotation marks omitted]).

Since the New York tax is fairly apportioned, the resultant double taxation does not serve to invalidate the tax. For while a state may indeed constitutionally tax the worldwide income of its residents, it will typically provide a credit for income tax paid to another state—as New York does. Here, it is Connecticut’s refusal to provide a credit to its resident for all of the nonresident income tax that the taxpayer paid to New York that has created the threat of double taxation. It is not, however, the “purpose of the Commerce Clause to protect state residents from their own state taxes” (Goldberg, 488 US at 266).

Since the New York tax imposed did not “reach! ] beyond that portion of value . . . fairly attributable to economic activity within the taxing State” (Jefferson Lines, 514 US at 185), the taxpayer has failed to demonstrate by clear and cogent evidence that the income attributed to New York was in fact out of all appropriate proportion to the business transacted here or has led to a grossly distorted result (see id. at 195).

V

The Due Process Clause places two restrictions on a state’s power to tax income generated by interstate activities. First, it “requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax” (Quill Corp. v North Dakota, 504 US 298, 306 [1992] [citation omitted]). Second, the “income attributed to the State for tax purposes must be rationally related to values connected with the taxing State” (Moorman, 437 US at 273 [citation and internal quotation marks omitted]). A state, therefore, may not tax value earned outside its borders (see e.g. Allied-Signal, Inc. v Director, Div. of Taxation, 504 US 768, 777 [1992]). Rather, the tax imposed must “bear[ ] fiscal relation” to “opportunities which [the state] has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society. . . . The simple but controlling question is whether the state has given anything for which it can ask return” (Wisconsin v J.C. Penney Co., 311 US 435, 444 [1940]).

Here, petitioner—both because of his physical presence in New York and because he has “purposefully avail[ed] [him] self of the benefits of an economic market in the forum State” (Quill, 504 US at 307)—clearly has a “minimum connection” to New York by virtue of his employment at Cardozo School of Law. Moreover, based on the same protections, opportunities and benefits conferred on him by New York as to satisfy the Commerce Clause, the convenience of the employer test as applied here does not tax “extraterritorial values” (Container Corp. of Am. v Franchise Tax Bd., 463 US 159, 164 [1983] [internal quotation marks omitted]). Rather, as the Appellate Division recognized, an ample foundation to justify the tax is provided by the host of tangible and intangible benefits flowing directly and indirectly to petitioner from New York, the location of the law school that supplies his total relevant income.

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

Judges G.B. Smith, Ciparick, Rosenblatt, Graefeo and Read concur.

Judgment affirmed, with costs.

      . Because of the joint return, she too is named as a petitioner in this proceeding, but her income is not relevant to this appeal.

      . New York residents, by contrast, are taxed on their worldwide income (see Tax Law § 611 [a]; § 612 [a]; Internal Revenue Code [26 USC] § 61 [a]; § 62 [a]).

      . The “convenience of the employer” would therefore more aptly be called the “necessity of the employer” test.

      . Of course, in the absence of the convenience test, opportunities for fraud are great and administrative difficulties in verifying whether an employee has actually performed a full day’s work while at home are readily apparent.

      . We reject his claim that the convenience test no longer has any justifiable basis because Connecticut has since 1991 imposed an income tax. Insofar as the test “serves to protect the integrity of the apportionment scheme by including income as taxable” when the income results from services derived from New York sources but performed out-of-state “to effect a subterfuge” (Matter of Colleary v Tully, 69 AD2d 922, 923 [3d Dept 1979]), the same incentive for tax avoidance exists when, as here, a neighboring state imposes tax at a lower rate than New York as when the state imposes no income tax at all.

      . The taxpayer also maintains that he is a “telecommuter” who, pursuant to Matter of Allen v Commissioner of Labor (100 NY2d 282 [2003]), may be taxed only according to the location in which he is physically present on any given day. Allen, however, involved neither taxes, nor the Commerce Clause, nor apportionment. Rather, in Allen we analyzed whether an employee physically present in Florida who “telecommuted” to New York by linking her laptop computer to her employer’s Internet connection over telephone lines was “localized” in New York within the meaning of the Unemployment Insurance Law. In concluding that she was not, we emphasized that the relevant uniform statute contained a definition of “employment” that served in part to advance the purpose of allocating all the employment of an individual to one state and not to divide it “among the several States in which he might perform services” (Matter of Mallia, 299 NY 232, 238 [1949]; see also Labor Law § 511). Here, by contrast, the Commerce Clause requires that the tax be fairly apportioned among the various states from which one’s income is derived.

      . Connecticut may and does tax petitioner’s income because he is its resident, not because two out of five of his work days were allegedly sourced in Connecticut.


author: Graffeo, J.

text:
    [801 NE2d 821, 769 NYS2d 445]
    Twin Lakes Development Corp., Appellant, v Town of Monroe, Respondent.
    Argued October 21, 2003;
    decided November 20, 2003

      POINTS OF COUNSEL

      James G. Sweeney, P.C., Goshen (James G. Sweeney of counsel), for appellant.
    I. The Town has no statutory power to impose a generic parkland or recreation “fee.” (Gulest Assoc. v Town of Newburgh, 25 Misc 2d 1004, 15 AD2d 815; Jenad, Inc. v Village of Scarsdale, 23 AD2d 784, 18 NY2d 78; Matter of Bays

      water Realty & Capital Corp. v Planning Bd. of Town of Lewisboro, 76 NY2d 460.) II. The Town’s local law violates the “rough proportionality” test of Dolan v City of Tigard (512 US 374 [1994]). (Weingarten v Town of Lewisboro, 144 Misc 2d 849, 160 AD2d 668, 77 NY2d 926; Nollan v California Coastal Commn., 483 US 825.) III. The legislative versus administrative distinction as affecting Dolan’s reach is explained away. (Parking Assn. of Ga., Inc. v City of Atlanta, 515 US 1116; Jenad, Inc. v Village of Scarsdale, 18 NY2d 78.) IV The traditional presumption of constitutionality does not shield Local Law No. 3 (2000) of the Town of Monroe. The courts below erroneously thought it did. (Village of Euclid v Ambler Realty Co., 272 US 365; Dolan v City of Tigard, 512 US 374.) V Local Law No. 3 (2000) of the Town of Monroe violates notions of procedural due process and is consequently unconstitutional. (Stuart v Palmer, 74 NY 183; Central of Ga. Ry. Co. v Wright, 207 US 127; Garden Homes Woodlands Co. v Town of Dover, 95 NY2d 516; Roosevelt Hosp. v Mayor, Alderman & Commonalty of City of N.Y., 84 NY 108; Dolan v City of Tigard, 512 US 374; Board of Regents of State Colls. v Roth, 408 US 564; Perry v Sindermann, 408 US 593; RRI Realty Corp. v Incorporated Vil. of Southampton, 870 F2d 911; AA&M Carting Serv. v Town of Hempstead, 183 AD2d 738; People v Brooklyn Garden Apts., 283 NY 373.) VI. Local Law No. 7 (1991) of the Town of Monroe is illegal as being an unconstitutional denial of due process in violation of the Fourteenth Amendment. (Jewish Reconstructionist Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158; Home Bldrs. Assn. of Cent. N.Y. v Town of Onondaga, 267 AD2d 973; Matter of Wright v Town of La Grange, 181 Misc 2d 625; Compañia Gen. de Tabacos de Filipinas v Collector of Internal Revenue, 275 US 87.) VII. The “audit” provisions of Town Law §§ 118 and 119 do not rescue Local Law No. 7 (1991) of the Town of Monroe from illegality. (Matter of Wildlife Assoc. v Town Bd. of Town of Southampton, 141 AD2d 651; Bradford v County of Suffolk, 257 App Div 777, 283 NY 503; Bloom v Mayor of City of N.Y., 35 AD2d 92, 28 NY2d 952.)

      Drake, Sommers, Loeb, Tarshis, Catania & Liberth, PLLC, Newburgh (Stephen J. Gaba of counsel), for respondent.
    I. A town board may establish the amount to be paid in lieu of parkland under Town Law § 277 (4) through a schedule of fixed per-lot charges. (Jenad, Inc. v Village of Scarsdale, 18 NY2d 78; Matter of Bayswater Realty & Capital Corp. v Planning Bd. of Town of Lewisboro, 76 NY2d 460; Weingarten v Town of Lewisboro, 144 Misc 2d 849, 160 AD2d 668, 77 NY2d 926; Dolan v

      City of Tigard, 512 US 374.) II. The charge of $1,500 per lot imposed upon plaintiff in lieu of parkland did not constitute an unconstitutional taking of plaintiff’s property without just compensation nor did it violate due process. (Manocherian v Lenox Hill Hosp., 84 NY2d 385; Jenad, Inc. v Village of Scarsdale, 18 NY2d 78; Matter of Bayswater Realty & Capital Corp. v Planning Bd. of Town of Lewisboro, 76 NY2d 460; Briarcliff Assoc. v Town of Cortlandt, 272 AD2d 488; Bonnie Briar Syndicate v Town of Mamaroneck, 94 NY2d 96; Nollan v California Coastal Commn., 483 US 825; Dolan v City of Tigard, 512 US 374; Weingarten v Town of Lewisboro, 144 Misc 2d 849, 160 AD2d 668, 77 NY2d 926; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; AA&M Carting Serv. v Town of Hempstead, 183 AD2d 738.) III. A municipality may require applicants for subdivision approval to reimburse it for consultants’ fees incurred by the planning board in the course of processing the subdivision application. (Jewish Reconstructionist Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158; Matter of Coates v Planning Bd. of Inc. Vil. of Bayville, 58 NY2d 800; Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613; Home Bldrs. Assn. of Cent. N.Y. v Town of Onondaga, 267 AD2d 973; Matter of Wildlife Assoc. v Town Bd. of Town of Southampton, 141 AD2d 651; Consolidated Edison Co. of N.Y. v Town of Red Hook, 90 AD2d 803, 60 NY2d 99.)
   OPINION OF THE COURT

Graffeo, J.

The Town of Monroe requires applicants for residential subdivision permits to pay fees in lieu of dedicating a portion of their property for recreational purposes and to reimburse the Town for consulting costs incurred in processing the application. In this declaratory judgment action, plaintiff claims that these requirements equated to a taking of its property without just compensation and violated due process. Because plaintiff has failed to establish any constitutional infirmities, we affirm the Appellate Division order granting defendant summary judgment dismissing the complaint.

Plaintiff Twin Lakes Development Corp. is a real estate developer and the owner of a 28-acre parcel in the Town of Monroe. In March 1999, plaintiff applied to the Town Planning Board for approval to subdivide its property into 22 residential lots. The Board considered the application, undertaking a State Environmental Quality Review Act analysis that culminated in a final environmental impact statement. As required by Monroe Town Code § 26B-2 (A) (11), plaintiff periodically deposited funds into an escrow account from which the Town paid consulting costs it incurred in conjunction with the application.

When the review was completed, the Board adopted a “Resolution of Conditional Final Approval,” imposing several conditions on plaintiff. In particular, citing section 277 of the Town Law, the Board mandated a “payment in lieu of parkland dedication to the Town of Monroe” for each of the lots created and reimbursement for any outstanding consulting fees. The “in lieu of’ payments are set forth in Monroe Town Code § 26B-2 (A) (7), which establishes a $1,500 per-lot fee for proposed subdivisions of five or more lots where the Board has determined parkland dedication is not appropriate.

To obtain the necessary approvals to proceed with its project, plaintiff paid $33,000 for “in lieu of parkland” fees ($1,500 x 22 lots) and a total of $22,000 in consulting costs, all apparently “under protest.” However, plaintiff did not bring a proceeding challenging the Board’s determination that the project fell within the parkland dedication provision or request an audit of the consulting fees the Town contended it had incurred. Instead, in February 2001, plaintiff commenced this declaratory judgment action seeking to invalidate the two fee provisions on constitutional grounds and to obtain a refund of the fees it paid, as well as attorney’s fees. The Town moved, and plaintiff cross-moved, for summary judgment. Supreme Court granted the Town’s motion, dismissing the complaint, and the Appellate Division affirmed. Plaintiff now appeals as of right (CPLR 5601 [b] [1]) and we also affirm.

Per-Lot Recreation Fee

Town Law § 277 (4) permits a town planning board, where it has made necessary preliminary findings, to require that developers of residential subdivisions include in their plans land for parks or other recreational purposes. “The section represents a legislative reaction to the threatened loss of open land available for park and recreational purposes resulting from the process of development in suburban areas and the continuing demands of the growing populations in such areas for additional park and recreational facilities” (Matter of Bayswater Realty & Capital Corp. v Planning Bd. of Town of Lewisboro, 76 NY2d 460, 468 [1990] [discussing earlier version of statute]). Specifically, the statute conditions a town’s power to mandate a parkland set-aside on

“a finding [by the planning board] that a proper case exists for requiring that a park or parks be suitably located for playgrounds or other recreational purposes within the town. Such findings shall include an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected future population growth to which the particular subdivision plat will contribute” (Town Law § 277 [4] [b]).

The statute also provides that a planning board may require a monetary payment in an amount to be established by the town board if the planning board determines that, although the subdivision is a “proper case” for requiring park dedication, “a suitable park or parks of adequate size to meet the requirement cannot be properly located on such subdivision plat” (id. 11 [c]). The town must deposit any monies paid “in lieu of’ a parkland set-aside into a trust fund for use exclusively for recreational purposes (see id.).

As previously noted, the Monroe Town Code currently sets the “in lieu of’ fee at $1,500 per lot for subdivisions consisting of five or more lots (see Monroe Town Code § 26B-2 [A] [7] [b]). The Town’s graduated fee schedule was fixed by a 2000 amendment to the Code that increased the fees based, in part, on the “rapid growth” in the Town’s population over the previous 15 years (Local Law No. 3 [2000] of Town of Monroe § 1). The Town Board justified the fee increase by explaining that “existing facilities for active recreation are severely limited and are inadequate to accommodate the needs of its residents,” and that the Board’s efforts to address increased demand for recreational facilities resulting from the population growth were “hampered by the constraints of the unavailability of suitable lands and upward-spiraling land costs” (id.). The additional fee income would enable the Town to “plan for the recreational needs of the residents in these new subdivisions and site plans and ameliorate the additional strain these new residents place on the already limited park and recreational facilities of the Town” (id.).

Plaintiff argues that the $1,500 per-lot recreation fee constitutes an unconstitutional taking because the amount of the fee is not based on an “individuated assessment” of the recreational needs generated by its subdivision plan and thus is not roughly proportional to those needs. Plaintiff further contends that the Code violates procedural due process because applicants cannot challenge the amount of the fee as excessive in relation to a particular subdivision plan. Plaintiff therefore challenges the Town’s authority to impose a fixed, per-lot recreation fee on developers in lieu of requiring developers to set aside dedicated parkland.

The Takings Clause of the Fifth Amendment of the United States Constitution—applicable to states through the Fourteenth Amendment—provides, “nor shall private property be taken for public use, without just compensation” (see Dolan v City of Tigard, 512 US 374, 383-384 [1994]). We have observed that the “[e]lementary and strong constitutional principles protecting] private property rights . . . evolved to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole” (Manocherian v Lenox Hill Hosp., 84 NY2d 385, 391 [1994], cert denied 514 US 1109 [1995] [quoting Penn Cent. Transp. Co. v City of New York, 438 US 104, 123 (1978) (internal quotation marks omitted)]).

The United States Supreme Court has developed a standard for evaluating takings claims arising in the “context of exactions—land-use decisions conditioning approval of development on the dedication of property to public use” (City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 US 687, 702 [1999]). A reviewing court must assess whether an “essential nexus” exists between the “legitimate state interest” advanced as the justification for the restriction and the condition imposed on the property owner (see Dolan, 512 US at 386 [quoting Nollan v California Coastal Commn., 483 US 825, 837 (1987)]; Bonnie Briar Syndicate v Town of Mamaroneck, 94 NY2d 96, 105-106 [1999], cert denied 529 US 1094 [2000]). Where such a nexus is present, the “degree of the exactions demanded” must have “the required relationship to the projected impact of [the applicant’s] proposed development” (Dolan, 512 US at 388).

In Dolan, the Supreme Court analyzed whether a municipality made sufficient findings to support its decision to condition the applicant’s expansion permit on a dedication of property for flood control and recreational purposes. After considering the various standards adopted by states, the Court determined that a “rough proportionality” test would “best encapsulate[ ] what we hold to be the requirement of the Fifth Amendment” (id. at 391). Thus, although “[n]o precise mathematical calculation is required,” the dedication must be “related both in nature and extent to the impact of the proposed development” (id.).

Here, plaintiff failed to demonstrate that the Town’s $1,500 per-lot fee constitutes a taking. When enacting the current fees, the Town made explicit findings that the demand for recreational facilities exceeded existing resources and that continued subdivision development, paired with the “upward-spiraling land costs,” would exacerbate the problem. Additionally, the statute authorizing the Town to impose recreation fees mandates that fees collected in lieu of parkland set-asides be deposited into a trust fund to be used strictly for recreational purposes (see Town Law § 277 [4] [c]). Taken together, these factors clearly establish the essential nexus between the stated purpose of the condition and the fee (cf. Nollan, 483 US at 837).

With respect to plaintiffs application, the Town concluded:

“based on the present and anticipated future need for park and recreational opportunities in the town, and to which the future population of this subdivision will contribute, that parklands should be created as a condition of approval of this subdivision. However, because the lot area and ownership patterns do not suit it to the development of a park suitable to meet the requirements of the site, pursuant to Section 277 of [the] Town Law, the Planning Board requires that the applicant deliver payment in lieu of parkland dedication . . . .”

These findings satisfy the requirements of Town Law § 277 (4) (c) and reflect the individualized consideration of the project’s impact contemplated by Dolan. Plaintiff identifies no proof in the record to support a contrary conclusion that the $1,500 per-lot fee is not roughly proportional to the impact its development would have on the recreational needs of the Town. Moreover, we are unpersuaded that Dolan precludes municipalities from establishing fixed fees to ensure that adequate recreational facilities can be provided. In light of plaintiffs heavy burden to rebut the presumption of constitutionality of this law (see e.g. de St. Aubin v Flacke, 68 NY2d 66, 76 [1986]; Lighthouse Shores v Town of Islip, 41 NY2d 7, 11 [1976]), plaintiffs unsubstantiated claims are insufficient to establish that the fee constitutes a taking.

Plaintiff further cites our holding in Garden Homes Woodlands Co. v Town of Dover (95 NY2d 516 [2000]) to support the argument that its due process rights were violated by the imposition of the per-lot recreation fees without a hearing to review the reasonableness of the fee amount. In Garden Homes, two municipalities undertook a joint street improvement project and imposed a series of special assessments on property owners within the improvement district to pay for the project. The plaintiff property owner did not receive notice of the proposed assessment and, therefore, did not object to the assessment. When the plaintiff learned that it faced a $44,800 special assessment, it brought an action that included a challenge to the adequacy of the notice-by-publication method used by one of the municipalities. We held that the municipality’s compliance with the notice-by-publication provision of Town Law § 239, which governs the filing of assessment rolls, was insufficient to protect the property owner’s right to contest the special assessment before it was imposed (id. at 519-520).

Relying on Jenad, Inc. v Village of Scarsdale (18 NY2d 78 [1966])—involving another recreation fee—plaintiff reasons that, because an “in lieu of” exaction is not a “general tax,” such an exaction is the equivalent of the special assessment in Garden Homes. Jenad does not support plaintiffs position. In Jenad, which has been partially abrogated by Dolan (see 512 US at 389 [declining to adopt Jenad’s standard for measuring the sufficiency of the nexus]), we went further than holding that the “in lieu of’ fee was not a “general tax” to conclude:

“[t]his is not a tax at all but a reasonable form of village planning for the general community good. . . . This was merely a kind of zoning, like set-back and side-yard regulations, minimum size of lots, etc., and akin also to other reasonable requirements for necessary sewers, water mains, lights, sidewalks, etc. If the developers did not provide for parks and playgrounds in their own tracts, the municipality would have to do it since it would now be required for the benefit of all the inhabitants” (18 NY2d at 84).

Similarly, the per-lot fee at issue here is neither a special assessment nor a tax. The requirement that developers pay the recreation fee is generally applicable to any Town property owner seeking to divide its property. Furthermore, unlike the property owner in Garden Homes, plaintiff can make no claim that it lacked notice of the “in lieu of’ fee—a generally applicable land-use law adopted after a public hearing and appearing in the Monroe Town Code. Not only was the law adopted through a public legislative process but also the Town revisits the fee schedule on a yearly basis, at which time concerned property owners can voice objections. Additionally, the Town’s recreation fees were not imposed against an unsuspecting property owner who could be divested of title for failing to pay, but upon a knowing property owner who willingly subjected itself to the fees by instigating the subdivision application process. For all of these reasons, Garden Homes is inapposite.

Consulting Fees

The power of the Town to charge “some amount” associated with the consideration of a land-use application is not disputed in this case (see Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613, 619 [1979]). This Court has repeatedly observed that this power is limited by the requirement “that the fees charged be reasonably necessary to the accomplishment of the regulatory program” (id. [citing Jewish Reconstructionist Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 163 (1976)]). Plaintiff argues that its due process rights were violated by the requirement that it pay the consulting fees incurred in conjunction with its application, asserting that no opportunity existed to challenge the reasonableness of those fees.

Section 26B-2 (A) (11) (a) of the Monroe Town Code requires an applicant to deposit an escrow with the Town Clerk “to cover the costs being incurred by the town for all consultant services, including but not limited to engineering, planning and legal as well as clerical costs incurred in the processing and reviewing of such application.” The Code further provides that “[t]he Planning Board, in consultation with the applicant, shall compute the amount of the escrow to be posted with the town. Such amount shall be reasonably related to the costs attendant to the town’s review of the application” (§ 26B-2 [A] [11] [i] [1]). Thus, under the challenged provisions, the applicant is required only to reimburse the Town for fees actually expended.

Plaintiff accurately observes that the consulting fee provisions do not include an express audit component providing an applicant with the opportunity to review the fee assessment but cites no authority for the proposition that such a mechanism must be contained within the fee provisions themselves as opposed to elsewhere in the statutory or regulatory scheme. The Code, however, expressly limits the fees that can be exacted to those that are “reasonable” (see Monroe Town Code § 26B-2 [A] [11] [a], [i] [1]) and the Town interprets the fees as subject to the audit provisions of Town Law §§ 118 and 119. In addition, uncontradicted proof in the record establishes that (1) the Town pays the same rate for consulting services as it charges applicants; (2) the Planning Board audits vouchers submitted by consultants in the first instance and rejects any excessive or unnecessary charges; and, (3) applicants may inspect consultants’ invoices upon request.

Here, plaintiff apparently paid the fees “under protest” but the record contains no indication of the nature of that protest and plaintiff did not request an audit of the fees. Indeed, although plaintiff complains that it has been deprived of an opportunity to contest the consulting fees, it has not alleged that the fees were, in fact, unreasonable. Under these circumstances, plaintiff has failed to establish a due process violation.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Read concur.

Order affirmed, with costs.

       The Supreme Court has recently clarified the reach of the “rough proportionality” standard and concluded that the standard is not applicable to “questions arising where . . . the landowner’s challenge is based not on excessive exactions but on denial of development” (Del Monte Dunes, 526 US at 703 [municipality denied a development plan outright]). Here, the parties agree that plaintiff’s challenge to the Town’s per-lot recreation fee exacted in lieu of parkland dedication is governed by Dolan’s rough proportionality test. In this case, which involves placing conditions on development as opposed to an outright denial of a subdivision application, applying rough proportionality analysis is consistent with the reasoning of the Supreme Court in Del Monte Dunes and with our interpretation of that precedent (see Bonnie Briar Syndicate, 94 NY2d at 106-107 [discussing Del Monte Dunes’s limitation of the Dolan standard to exaction cases]).


author: Ciparick, J.

text:
    [802 NE2d 131, 769 NYS2d 781]
    The People of the State of New York, Respondent, v Bruce McDonald, Appellant.
    Argued October 15, 2003;
    decided November 24, 2003

      POINTS OF COUNSEL

      New York State Defenders Association, Albany (Alfred O’Connor of counsel), for appellant.
    Because defense counsel admittedly told appellant that he faced no risk of deportation by pleading guilty to felony charges when, in fact, the resulting convictions exposed him to mandatory deportation, appellant alleged a legal basis for relief on the ground of ineffective assistance of counsel. As neither the People nor the motion court identified a legitimate factual deficiency in his motion papers concerning the prejudice component of this constitutional claim, appellant has a right to a hearing to prove that his guilty plea was involuntarily induced by his lawyer’s ineffective representation. (United States v Amador-Leal, 276 F3d 511; United States v Graham, 927 F Supp 619; McMann v Richardson, 397 US 759; People v Claudio, 83 NY2d 76; Boria v Keane, 99 F3d 492; People v Droz, 39 NY2d 457; Boykin v Alabama, 395 US 238; North Carolina v Alford, 400 US 25; Hill v Lockhart, 474 US 52; Tollett v Henderson, 411 US 258.)

      George M. Dentes, District Attorney, Ithaca, for respondent.
    I. Defendant rests this appeal solely on federal constitutional grounds. (People v Freeland, 68 NY2d 699.) II. Having submitted no affidavit of his own in support of the postjudgment motion, and having failed to provide any sworn allegations of fact to demonstrate that he would not have pleaded guilty had he known the deportation consequences of his guilty plea, defendant failed to make even a prima facie showing of prejudice, thus justifying county court’s summary denial of the motion. (People v Brown, 56 NY2d 242; People v Satterfield, 66 NY2d 796; People v Crimmins, 38 NY2d 407; People v Friedgood, 58 NY2d 467; Strickland v Washington, 466 US 668; Hill v Lockhart, 474 US 52; People v Mendoza, 82 NY2d 415; People v Jones, 95 NY2d 721; People v Jackson, 240 AD2d 946, 90 NY2d 940; People v Herring, 83 NY2d 780.) III. The court below applied the appropriate standard. (Hill v Lockhart, 474 US 52.) IV The People preserved their argument concerning lack of prejudice, but in any event, the rule of preservation does not apply against the People in the present procedural posture. Defendant, on the other hand, has failed to preserve his argument for appeal. (Strickland v Washington, 466 US 668; People v Nieves, 67 NY2d 125; Sega v State of New York, 60 NY2d 183; Hill v Lockhart, 474 US 52; People v Baldi, 54 NY2d 137; People v Ford, 86 NY2d 397.) Y. If defendant prevails in his arguments, the matter should be remanded for an evidentiary hearing. (People v Krawitz, 151 AD2d 850.)
   OPINION OF THE COURT

Ciparick, J.

This appeal raises the question whether, under certain circumstances, a defense counsel’s incorrect advice as to deportation consequences of a plea may constitute ineffective assistance of counsel. We answer in the affirmative but conclude that in the instant case—where defendant has failed to make the requisite showing of prejudice due to counsel’s incorrect advice—defendant was not deprived of the effective assistance of counsel under the Federal Constitution.

I.

Defendant Bruce McDonald came to the United States from Jamaica and has apparently been a lawful permanent resident of the United States for over 20 years. While in the United States, defendant had three children, all American citizens by birth. His wife is also an American citizen.

In April 1999, an undercover officer of the New York State Police made two controlled buys of marihuana from defendant at a university cafeteria where he was employed. On May 4, 1999, a sealed indictment was filed against defendant in connection with those transactions and he was arrested the following day. During the execution of a search warrant, the police discovered one-third ounce of cocaine, 9.4 ounces of marihuana and an electric scale in defendant’s apartment. Thereafter, a superseding eight count indictment was filed against defendant for criminal sale of marihuana in the third degree and criminal possession of marihuana in the fifth degree on both April 26, 1999 and April 28, 1999, and criminal possession of a controlled substance in the third and fourth degrees, criminal use of drug paraphernalia in the second degree and criminal possession of marihuana in the third degree on May 5, 1999.

With the advice of counsel, defendant pleaded guilty to criminal sale of marihuana in the third degree and criminal possession of a controlled substance in the third degree in full satisfaction of all charges. He was sentenced, in accordance with his plea agreement, to concurrent indeterminate prison terms of 1 to 3 years. The next day, the United States Immigration and Naturalization Service (INS) served defendant with a notice of hearing of deportation based on his conviction for aggravated felonies pursuant to, among other statutory provisions, 8 USC §§ 1101 (a) (43) (B), 1227 (a) (2) (A) (iii) and 1229 (b).

Approximately seven weeks later, defendant’s trial counsel moved on defendant’s behalf to vacate the judgment of conviction under CPL 440.10 (1) (h), contending that defendant had been denied effective assistance of counsel. In a supporting affirmation, trial counsel admitted that he incorrectly advised defendant that his guilty plea “would not result in deportation because of the Defendant’s lengthy residence in the United States and the fact [szc] his three children were born and reside in the United States” (emphasis in original). Counsel further admitted that his advice was “plainly in error” as defendant was actually at risk of mandatory deportation upon conviction of any of the felonies charged.

Alleging that, during plea negotiations, the District Attorney made essentially the same erroneous representations about deportation consequences, counsel admitted that he advised defendant of the prosecutor’s representations prior to the guilty plea. Counsel contended that, while defendant had “maintained his innocence” before the grand jury, he entered the guilty plea “in reliance on” counsel’s “affirmative misstatements and legal errors” and, therefore, the plea was constitutionally invalid.

The People opposed defendant’s motion to vacate the judgment of conviction and sentence. Among other things, the District Attorney denied that he ever told counsel that defendant would not be deported if convicted of the felonies charged, but stated only that he knew very little about immigration matters and that generally long-term residents of the United States had better chances of resisting deportation than short-term residents. According to the People, the District Attorney also recommended that counsel contact INS to discuss the matter. In addition, the People argued that defendant’s ineffective assistance of counsel claim should fail because defendant did not make the requisite showing of prejudice as a result of counsel’s erroneous advice. Specifically, the People contended that defendant failed to allege that the outcome of the trial would have been any different had defendant not pleaded guilty.

County Court denied defendant’s motion without a hearing for the reasons set forth in the People’s response. The Appellate Division affirmed, holding that

“defendant has not demonstrated that he was prejudiced by counsel’s misadvice, i.e., that it was reasonably probable that he would have forgone the plea deal and instead insisted on going to trial had he been correctly advised regarding the deportation consequences of the proposed guilty plea, or that, had he rejected the plea bargain, the outcome of the proceeding likely would have changed and, thus, we cannot conclude that he was deprived of the effective assistance of counsel under either the State or Federal Constitution” (296 AD2d 13, 21 [2002] [citations omitted]). A Judge of this Court granted leave to appeal and we now affirm.

II.

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 6). Under the Federal Constitution, the “longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (Hill v Lockhart, 474 US 52, 56 [1985] [internal quotation marks and citations omitted]). Defendants who seek to challenge the voluntary and intelligent character of their guilty pleas on the ground of ineffective assistance of counsel must establish that defense counsel’s advice was not within the standard set forth in Strickland v Washington (466 US 668 [1984]) (see Hill, 474 US at 58).

In Strickland, the Supreme Court adopted a two-part test for evaluating claims of ineffective assistance of counsel generally. A “defendant must show that counsel’s performance was deficient,” and “that the deficient performance prejudiced the defense” (Strickland, 466 US at 687). The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel’s representation fell below an objective standard of reasonableness (Hill, 474 US at 58). The second prong, also known as the prejudice prong, “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process” (Hill, 474 US at 59). In order to satisfy this prong, a “defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” (Hill, 474 US at 59).

Under certain circumstances, the prejudice inquiry, in a case where a defendant has entered a guilty plea, will require a prediction of the outcome of possible litigation, which “will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial” (Hill, 474 US at 59). The United States Supreme Court’s examples of circumstances requiring a prediction analysis are the following: (1) “where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence” and (2) “where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged” (Hill, 474 US at 59). The prejudice assessment, in each of these examples, would necessarily turn on whether the evidence, had it been put before the factfinder, “likely would have changed the outcome of a trial” (Hill, 474 US at 59).

Relying solely on federal constitutional law, defendant argues that his counsel’s incorrect advice about the consequences of his guilty plea constitutes ineffective assistance of counsel. The mere failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel (see People v Ford, 86 NY2d 397, 404 [1995]; see also United States v Del Rosario, 902 F2d 55, 59 [DC Cir 1990], cert denied 498 US 942 [1990]). However, governed by Strickland, some federal courts have held that affirmative misstatements by defense counsel may, under certain circumstances, constitute ineffective assistance of counsel (see United States v Couto, 311 F3d 179, 188 [2d Cir 2002]; see also United States v Campbell, 778 F2d 764, 768-769 [11th Cir 1985]; Downs-Morgan v United States, 765 F2d 1534, 1540-1541 [11th Cir 1985]).

Applying the rule as articulated by the federal circuits, defendant has met the first prong of the Strickland test in that trial counsel admits that he incorrectly advised his client about the consequences of the plea. Specifically, counsel misinformed defendant by telling him that he would not be subject to deportation because he was a long-term resident of the United States and his three children were American citizens by birth and live in the United States. We hold that this type of affirmative misrepresentation falls below an objective standard of reasonableness (see Couto, 311 F3d at 188).

Hence, the success of defendant’s ineffective assistance of counsel claim rests on whether his allegations meet the second requirement of Strickland—the requisite showing of prejudice. Contrary to the People’s contention, and the Appellate Division’s holding below, the prejudice inquiry here does not necessitate a prediction analysis as to the likely outcome of the proceeding. Defendant does not allege errors concerning the failure to investigate or discover potentially exculpatory evidence or the failure of counsel to advise him as to affirmative defenses. To establish ineffective assistance of counsel, defendant’s allegations must be sufficient to “show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” (Hill, 474 US at 59).

The sufficiency of defendant’s factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant’s access to information (see People v Mendoza, 82 NY2d 415, 426 [1993]). Here, the supporting affirmation annexed to defendant’s motion to vacate the judgment of conviction was made by trial counsel (see CPL 440.30 [1]). It merely states that counsel misinformed defendant as to the deportation consequences of his guilty plea and that defendant relied on the incorrect advice when entering the plea. The affirmation makes no factual allegation that, but for counsel’s error, defendant would not have pleaded guilty.

Given that this is not an instance where defendant’s lack of access to information precluded more specific factual allegations, defendant was required to allege necessary facts to support his motion to vacate the judgment of conviction (see Mendoza, 82 NY2d at 429). Because he failed to make a prima facie showing of prejudice, the Appellate Division did not err in denying his motion to vacate the judgment of conviction without a hearing.

Accordingly, the Appellate Division order should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo and Read concur.

Order affirmed.

      . Defendant’s maximum exposure, had he gone to trial, would have been a sentence of 25 years imprisonment if convicted as charged of the class B felonies (see Penal Law § 70.00 [2] [b]) with the potential for consecutive sentences on the two sale counts (Penal Law § 70.25).

      . As a matter of state constitutional law, this Court has consistently applied our “meaningful representation” standard to ineffective assistance of counsel claims (see People v Henry, 95 NY2d 563, 565 [2000]; see also People v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).