author: G.B. Smith, J. Chief Judge Kaye (dissenting).

text:
    [814 NE2d 419, 781 NYS2d 249]
    Jacqueline Galindo, Individually and as Administratrix of the Estate of Javier Galindo, Deceased, Appellant, v Town of Clarkstown, Defendant, and C. Richard Clark, Respondent.
    Argued March 25, 2004;
    decided May 13, 2004

      POINTS OF COUNSEL

      Gregory W. Bagen, Brewster, for appellant.
    The dissent at the Appellate Division got it right, and the majority got it wrong.

      Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains {John C. Couzens, Jr. and Robert J. Gironda of counsel), for respondent.
    I. There can be no liability imposed on C. Richard Clark in the absence of a legal duty. (Badou v New Jersey Tr. Rail Operations, 221 AD2d 303; Kimbar v Estis, 1 NY2d 399; Spallholtz v Hampton C.F. Corp., 294 AD2d 424; Minott v City of New York, 230 AD2d 719; Pulka v Edelman, 40 NY2d 781.) II. C. Richard Clark as owner or occupier of the abutting property owed no duty of care to plaintiffs to warn them of or protect them from a defective or dangerous condition on the neighboring town property. (Gehler v City of New York, 261 AD2d 506; Pensabene v Incorporated Vil. of Val. Stream, 202 AD2d 486.) III. The dissenting opinion of the Appellate Division is incorrect as their analysis belies the controlling principles of law when it intends to impose a legal duty upon C. Richard Clark to warn of a danger on abutting property that is likely to cause injury to persons on his property. (Pulka v Edelman, 40 NY2d 781; Badou v New Jersey Tr. Rail Operations, 221 AD2d 303; D’Amico v Christie, 71 NY2d 76.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue presented here is whether defendant Richard Clark may be held liable for failing to warn the decedent, who was sitting in a parked car on Clark’s driveway, of a danger posed by a leaning tree located on neighboring property. We conclude that under the circumstances presented, Clark had no duty to warn.

On June 2, 2000, a severe thunderstorm, accompanied by strong wind gusts, hit the Town of Clarkstown, leaving in its wake several downed trees and power lines. On the evening of June 4th, Clark and his wife surveyed the damage created by the storm and saw that an 80-foot tree, which was located on adjacent property owned by the Town of Clarkstown, was tilted toward their property. Clark went to the base of the tree and observed perforations in the soil. The surface root had begun to separate the dirt, causing porous openings in the soil at the base of the tree. Clark estimated that the tree was tilted about 3.5 degrees. At his deposition, he testified that he was concerned about the possibility that the tree could fall, although he could not discern the path that the tree would take in the event of a fall. Clark thought it possible that the tree could fall onto an adjacent tree located on his property. Under such circumstances, Clark stated, the fallen tree could have rolled onto the road into oncoming traffic or could have fallen onto his house. However, he did not believe the tree posed an immediate threat of falling. In fact, although his wife’s car was parked near what he described as “a potential danger radius,” he did not move it because he did not think the tree was in danger of falling. He and his wife continued to reside in their house.

The next morning, members of the Town Highway Department were across the street from Clark’s house picking up branches and debris from a tree that had fallen as a result of the storm. Clark approached Randall Scott, one of the crew members, and pointed out the tree to Scott, who did not approach the tree to observe the condition of the root or the soil. Instead, he gave Clark the telephone number of Tom Westervelt, a road maintenance supervisor for the Town of Clarkstown. Minutes later, Clark called Westervelt and left a voice mail message conveying that the tree threatened damage either to his property, the road or the power lines. Clark received no response.

On the following morning, June 6th, Clark noticed that the degree of the tilt of the tree had increased. He again called Westervelt, leaving a second, more urgent message. At some point during the morning, plaintiff Jacqueline Galindo, Clark’s housekeeper, arrived at the house. After greeting Galindo, Clark left the house to run errands. As he was driving away, he noticed a car that he did not recognize parked behind his wife’s car. Inside the car was Galindo’s husband, Javier, who apparently had been waiting to pick up his wife after she finished working. However, at that time Clark did not approach the car or see anyone inside. Tragically, while Clark was running his errands, the tree fell onto the parked car, causing Javier’s death.

Plaintiff commenced this action against Clark and the Town of Clarkstown seeking damages for the wrongful death of her husband. Both defendants moved for summary judgment. Supreme Court dismissed the complaint as to Clark, concluding that he had no duty to warn of defects or conditions on property that he did not own. After summary judgment was denied to the Town of Clarkstown, it settled the action and plaintiff discontinued her claim against the Town.

Plaintiff appealed the grant of summary judgment in favor of Clark. A divided Appellate Division affirmed the order. Plaintiff appeals to this Court as a matter of right, and we now affirm.

It is well settled that a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances. The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff’s presence on the property (see Kush v City of Buffalo, 59 NY2d 26, 29-30 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]). Ordinarily, a landowner’s duty to warn of a latent, dangerous condition on his property is a natural counterpart to his duty to maintain his property in a reasonably safe condition (see Tagle v Jakob, 97 NY2d 165, 169 [2001]; Basso v Miller, 40 NY2d at 239; Soich v Farone, 307 AD2d 658, 659 [3d Dept 2003]).

However, as a general matter, an owner owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it (see Gehler v City of New York, 261 AD2d 506 [2d Dept 1999]; Pensabene v Incorporated Vil. of Val. Stream, 202 AD2d 486 [2d Dept 1994]; Gipson v Veley, 192 AD2d 826 [3d Dept 1993]). The reason for such a rule is obvious—a person who lacks ownership or control of property cannot fairly be held accountable for injuries resulting from a hazard on the property. We hold that this rule requires dismissal of plaintiff’s claim against Clark.

To be sure, this case presents the unusual situation in which a dangerous condition on neighboring property caused the decedent’s death while he was on the defendant’s property. Yet the fact remains that because Clark had no ownership or control of the property on which the tree stood, he did not have it within his power to correct the hazard that the tree posed. Indeed, had Clark attempted to remove the tree to eliminate the danger, he could have been subject to criminal charges.

We reject plaintiffs contention that though Clark had no duty to remedy the danger, he did have a duty to warn the decedent of it. We agree with the Appellate Division that as a general matter, it would create an “unreasonably onerous” burden to require a landowner to evaluate and warn others about a danger caused by a condition existing on neighboring land. (305 AD2d 538, 539 [2003].) We do not exclude the possibility that some dangers from neighboring property might be so clearly known to the landowner, though not open or obvious to others, that a duty to warn would arise. Here, there was no such danger.

Though Clark was clearly aware of the leaning tree and concerned that it might one day damage his property, he had no reason to, and did not, anticipate that the tree would fall either where or when it did. Clark testified that the leaning of the tree was fractional, approximately 3.5 degrees the day before the accident and a little more the day that it fell. Of course, Clark was not an arborist and from such a tilt could not be expected to predict that the tree was about to fall, and if so, how it would fall. Even when he brought the tree to the attention of Scott, who had been removing foliage from the street on behalf of the Town, Scott showed little concern for the well-being of the tree or for the potential damage it could cause, but simply gave Clark a phone number to call. During his deposition, Clark testified that it was difficult to know the path the tree would take. He opined that it could have fallen onto an adjacent tree located on his property; it could have rolled into the street, taking out power lines and blocking traffic; or it could have fallen onto his house.

Clark did not consider the situation so precarious as to warrant taking precautions for himself or for his wife—though Clark testified that his wife’s car was parked “on the edge of a potential danger radius.” He did not move the car, and he continued to stay in his home with his wife after he had noted the possibility that the tree would fall on his property. Under these circumstances, it is apparent that there was no obvious hazard that could give rise to a duty to warn.

In sum, we conclude that Clark had no duty under the facts of this case to warn decedent of the hazard the tree posed.

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

Chief Judge Kaye (dissenting).

We are unanimous in two respects—one procedural, one substantive. Procedurally, this is a summary judgment motion, where we need determine only whether triable issues of fact exist permitting the case to proceed to trial. Substantively, we all agree on the governing legal standard: A landowner owes a duty to prevent foreseeable injuries by exercising reasonable care in maintaining his or her property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk and the foreseeability of a potential plaintiffs presence on the property (see Basso v Miller, 40 NY2d 233, 241 [1976]). This duty includes a duty to warn of potentially dangerous conditions on the property, unless such conditions are open and obvious.

In granting defendant summary judgment, however, the Court now concludes as a matter of law that the duty to warn a visitor of a known danger exists when the source of the danger arises on one’s own property, but not when it originates inches over the property line. I cannot join in this rule.

To my mind, what matters is not the source of the danger but the locus of the risk of injury—here plainly situated on defendant’s property, as defendant acknowledges he knew. Defendant admitted that

• he reported to the Clarkstown Highway Department that the tree “looked to me to be threatening to do some damage to, A, either my property or the road or power lines”; and
• he placed a second phone call with “a little more urgency because I felt the tree had gotten worse”; and
• the tree “looked to me to be a problem, a serious problem” and appeared “wounded enough to cause concern about its ultimate fate”; and
• “[i]t looked like there was a possibility it would come down.”

Defendant further testified that he informed the Highway Department that the tree might present a hazard to his house and that in order for the tree to fall and strike his house, “fi]t would have fallen straight down the line of the driveway.” (Emphasis added.) In fact, the tree that crushed Mr. Galindo to death did indeed fall straight down the line of the driveway and, as anticipated, did strike defendant’s house. These admissions made throughout defendant’s testimony certainly created triable issues of fact as to his knowledge of the danger and the foreseeability of the harm.

As the Appellate Division dissent explained, “It makes no difference that the instrument of injury or death is located on adjacent property if the consequence of its fall is injury or death occurring on the owner’s property” (305 AD2d 538, 540 [2003]).

True, an abutting property owner generally owes no duty to warn or protect third parties from a dangerous or defective condition on neighboring premises, unless the owner created or contributed to the dangerous condition. But what the Court fails to recognize is that the hazard here was not on neighboring premises. The uprooted tree posed a threat to—and caused a death in—defendant’s own driveway.

True, defendant had neither the duty nor the right to remove the tree or otherwise eliminate the danger. But that is irrelevant to the issue whether defendant had a duty simply to warn of a danger that he could nevertheless not himself repair. That being so, there is no principled reason why a property owner aware of the risk should owe a duty to warn a visitor that a branch dangling from a tree on his property is about to fall on the visitor’s head, but may stand quietly by when its roots grow in the neighbor’s soil. A landowner must “act reasonably when considering all the circumstances” (Peralta v Henriquez, 100 NY2d 139, 144 [2003]) and the standard of care should “accord[ ] with the mores of our society” (Gallagher v St. Raymond’s R.C. Church, 21 NY2d 554, 558 [1968]). If a live power line were dangling precariously over a person’s property, any homeowner—though unable to eliminate the danger other than by calling the local utility who owns the line—would warn children to stay away. If the danger were not open and obvious— perhaps at night—the owner should warn visitors as well.

The rule should remain what it has always been: A landowner has a duty to warn of a known hazard on his or her premises— regardless of the ultimate source of the danger. Permitting a trial in these circumstances imposes no duty on landowners to inspect neighboring premises or to learn of hidden dangers. Only when the property owner actually knows of the danger emanating from the abutting property—a danger that poses a risk of injury on the owner’s own property—should there be a duty to warn. Recognizing such a duty imposes a minimal burden on landowners but its fulfillment here could have saved a life.

The Court’s contention that the harm was not foreseeable does not resolve the issue before us, because that conclusion applies with equal force on whichever side of the property line the tree was located. The answer to the question whether defendant could tell by the tilt of this tree where it would fall is precisely the same regardless of where defendant’s property ended and his neighbor’s began. If defendant had owned both properties, we would not debate whether he had a duty to warn. Since the record supports the conclusion that he knew of the risk, the result should be no different here.

In concluding instead that the risk of injury was not foreseeable as a matter of law because this defendant did not take steps to protect himself and his family from danger, the Court misapprehends the law of negligence. The test is not whether defendant stayed at home or moved his wife’s car. The test is an objective one: what a reasonable person would do under the circumstances. That defendant may have negligently, perhaps recklessly, remained in a house he believed—correctly, as it turned out—potentially in danger did not render the risk of injury unforeseeable as a matter of law. Nor could his failure to determine whether anyone was in Galindo’s car at the moment he left his house absolve him of the duty to warn the car’s owner of the risk posed to her property—or to herself if she got in the car to drive it, as car owners are wont to do.

Whether the tree in fact posed a danger, whether the risk that it would fall on the driveway was foreseeable, whether defendant took reasonable care to warn, whether the danger was open and obvious—all these are questions to be determined at trial. “[T]he question of proof in individual situations should not be the arbitrary basis upon which to bar all actions” (Bovsun v Sanperi, 61 NY2d 219, 231 [1984] [citation and internal quotation marks omitted]).

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

Order affirmed, with costs.

       Section 5-11 of the Code of the Town of Clarkstown states, “No person . . . shall do or cause to he done any damage nor shall. . . destroy any grass, shrub or tree upon town highways, town parks or other town properly.” Section 5-17 of the Code states, “Any person committing an offense against the provisions of §§ 5-7 through 5-16, inclusive, of this chapter shall be guilty of a violation punishable by a fine not exceeding two hundred fifty dollars ($250) or by imprisonment for a term not exceeding fifteen (15) days, or by both such fine and imprisonment.”


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [814 NE2d 426, 781 NYS2d 256]
    In the Matter of Lillian Roberts, as Executive Director of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Respondents, v John J. Murphy, as Executive Director of New York City Employees’ Retirement System, et al., Appellants.
    Argued May 4, 2004;
    decided June 3, 2004

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Victoria Scalzo, Paul L. Herzfeld, Francis F. Caputo and Susan Sanders of counsel), for appellants.
    Medical review pursuant to Retirement and Social Security Law § 605 (e) is not available to Tier IV emergency medical technicians applying for performance of duty disability retirement pursuant to Retirement and Social Security Law § 607-b. (Morales v County of Nassau, 94 NY2d 218; Thoreson v Penthouse Intl., 80 NY2d 490; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of Hays v Ward, 179 AD2d 427, 80 NY2d 754; Matter ofBorenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; I-T-E Imperial Corp.—Empire Div. v Bankers Trust Co., 51 NY2d 811; People v Solomon, 296 NY 220; American Bank v Goss, 236 NY 488; Matter of Rapp v New York City Employees’ Retirement Sys., 53 AD2d 571, 42 NY2d 1; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.)

      Joel Giller, New York City (Mary J. O’Connell of counsel), for respondents.
    Retirement and Social Security Law § 607-b applicants are entitled to medical review. (I-T-E Imperial Corp.— Empire Div. v Bankers Trust Co., 51 NY2d 811; People v Solomon, 296 NY 220; American Bank v Goss, 236 NY 488; Patrolmen’s Benevolent Assn, of City of N.Y.v City of New York, 41 NY2d 205; Matter of Friedman-Kien v City of New York, 92 AD2d 827; Riley v County of Broome, 95 NY2d 455; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; New York State Bankers Assn. v Albright, 38 NY2d 430; Matter of Curley v Dilworth, 96 AD2d 903, 63 NY2d 770; Goldstein v City of Long Beach, 28 AD2d 558.)
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal asks us to determine whether Tier IV emergency medical technicians and advanced emergency medical technicians (EMTs) who file for performance-of-duty disability retirement benefits pursuant to Retirement and Social Security Law § 607-b are entitled to review of their application by a Special Medical Committee pursuant to Retirement and Social Security Law § 605 (e). We conclude that they are not.

Petitioners are Tier IV EMTs who were injured on the job and whose applications for disability retirement benefits were reviewed—and denied—by the New York City Employees’ Retirement System (NYCERS) Medical Board for three-quarter disability retirement benefits under Retirement and Social Security Law § 607-b. Petitioners then appealed the Medical Board’s determination to the Special Medical Committee made up of three independent doctors—pursuant to Retirement and Social Security Law § 605 (e)—who reversed the Board’s determination and approved petitioners’ three-quarter salary disability retirement benefits.

On May 8, 2002, NYCERS’ Deputy Director informed petitioners that, notwithstanding the Special Medical Committee’s determination, their benefits would be discontinued. The Deputy Director advised petitioners that

“there is no provision under the law that would allow a tier 4 EMS/EMT member of NYCERS whose application for disability retirement under Section 607-b of the RSSL is denied by the NYCERS’ Medical Board ... to seek redress through Final Medical Review under Section 605-e of the RSSL. . . .
Final Medical Review . . . is to be made available only to Tier 4 members who apply for disability retirement under the provisions of Section 605.”

Petitioners brought this CPLR article 78 proceeding claiming that John J. Murphy, as Executive Director of NYCERS, and Michael Bloomberg, as Mayor of the City of New York (the City), unlawfully terminated their three-quarter disability retirement benefits and health insurance coverage after their applications had been approved by a Special Medical Committee. Supreme Court concluded that petitioners were entitled to the additional medical review, finding “ambiguity inherent in RSSL § 607-b.” In the court’s words, “[b]ecause RSSL § 607-b incorporates RSSL § 605 (c) by reference, and the procedures referred to therein were subsequently expanded by RSSL § 605 (e) to include medical review, resort should be made to interpretation beyond the words of the statute.” The Appellate Division affirmed, noting that “Retirement and Social Security Law § 607-b is not a ‘stand-alone’ statute” (305 AD2d 237, 238 [1st Dept 2003]). We now reverse.

Discussion

Retirement and Social Security Law article 15 provides a comprehensive scheme of retirement benefits through which city employees may receive a pension upon retirement from service, after meeting specified age and length-of-service requirements (see e.g. Retirement and Social Security Law §§ 600— 604-h). Employees who are disabled while on the job, and are unable to perform their duties, may retire and receive benefits prior to meeting age and the statutory length-of-service requirements (see Retirement and Social Security Law §§ 605—607-d). At issue in this litigation are “Performance of duty disability retirement” benefits for EMTs, provided for as follows (Retirement and Social Security Law § 607-b [a]):

“Any member of the New York city employees’ retirement system who is employed by the city of New York ... in the position of [EMT] . . . who . . . becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary, subject to the provisions of subdivision c of section six hundred five of this article and section 13-176 of the administrative code of the city of New York.”

Section 607-b was enacted in 1998 to rectify a “grossly unfair” and “serious inequity” that became apparent after the City’s Emergency Medical Service merged into the Fire Department Bureau of Emergency Medical Services (Mem of Assembly in Support, 1998 McKinney’s Session Laws of NY, at 1979, 1980). EMTs worked side-by-side with members of the Fire Department but received drastically different disability retirement benefits. “If a [paramedic or EMT] and a fire-fighter both suffer [ed] a serious disabling injury at the same emergency, the firefighter [could] receive a 75% pension for life. The [paramedic or EMT] receiv[ed] 18 months of disability wages and then face[d] termination if he/she [could not] return to work” {id. at 1980). The law sought to “overcome[ ] this unfairness and recognize [ ] the strenuous and dangerous working conditions that New York City EMTs face” {id.). Thus, the statute was amended to add section 607-b to provide Tier IV EMTs with the enhanced benefit available to their firefighter counterparts.

Section 607-b expressly incorporates by reference section 605 (c), a general provision that sets forth the method by which NYCERS’ Medical Board may make determinations as to the initial entitlement to a disability retirement allowance. Section 605 (c) provides that “Each retirement system shall be entitled to adopt appropriate procedures for making the foregoing determination, including but not limited to the conducting of medical examinations, if any, for the purpose of determining initial entitlement of an applicant for disability retirement or to continued entitlement to a disability retirement allowance.”

Petitioners ask us to add another link between the sections of the statute. They contend that because section 607-b expressly incorporates section 605 (c), and because the procedures referenced in section 605 (c) were subsequently expanded by Retirement and Social Security Law § 605 (e) to include an additional layer of medical review, section 605 (e) benefits should also apply to performance-of-duty disability retirement benefits under section 607-b. Petitioners’ argument has no support in the language or legislative history of section 607-b.

Retirement and Social Security Law § 605 (e), enacted less than two months after section 607-b, provides:

“The board of trustees of the [NYCERS] may, consistent with the provisions of this section, adopt rules and regulations establishing a procedure for the medical review of determinations made by such retirement system on applications for disability retirement filed pursuant to this section.”

Pursuant to section 605 (e) a party can request review of the Medical Board’s initial determination by a Special Medical Committee consisting of three physicians whose recommendation supersedes the Medical Board’s (see NYCERS Rules, rule 23[a] [10]).

The plain language of Retirement and Social Security Law § 607-b specifically references only section 605 (c). Significantly, after enacting section 605 (e), the Legislature did not amend section 607-b to incorporate it. Additionally, section 605 (e) states that it applies only to those who seek benefits “pursuant to this section”—not the enhanced benefits under section 607-b. The NYCERS Rules promulgated thereunder also provide that they govern “all applications for disability retirement filed by members subject to the provisions of §605 of Article 15 of the RSSL” (NYCERS Rules, rule 23[a] [1]).

The legislative history further supports the conclusion we reach. Section 605 (e) was added to the generalized “Disability retirement” scheme of section 605 to rectify “Tier inequity” “by providing Tier III and IV members of NYCERS with the same medical review rights as Tier I and II members of NYC-ERS” (Mem of Senate in Support, 1998 McKinney’s Session Laws of NY, at 1997). If EMTs are now afforded the additional level of review provided for in section 605 (e), the legislative intent of section 607-b would be frustrated and a new disparity introduced between EMTs and firefighters, as firefighters are not entitled to section 605 (e) review. Having acted specifically to eliminate the disparity between EMTs and firefighters, it is inconceivable that the Legislature, less than two months later, would have intended implicitly to create a new disparity.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.

      . NYCERS is a public retirement system governed by New York law (see Retirement and Social Security Law arts 11, 14, 15). Employees of the City of New York may become members of NYCERS, which is administered by a Board of Trustees composed of city members, union members and each of the borough presidents. Employees who join NYCERS become members of a certain “Tier” based on the date they join the system. The NYCERS Medical Board consists of three appointed physicians. After examining an applicant seeking disability benefits they forward a written report with a recommendation to the NYCERS Board of Trustees, who can accept or reject it (see Administrative Code of City of NY § 13-123; NYCERS Rules, rule 23[a] [4], [6]).

      . Prior to argument before the Appellate Division, the parties stipulated that, regardless of the outcome of this case, NYCERS would pay performance-of-duty disability retirement benefits to any member whose application for such benefits filed pursuant to Retirement and Social Security Law § 607-b had been approved after review by a Special Medical Committee, prior to commencement of this proceeding. Thus, the only issue before us is whether independent medical review under Retirement and Social Security Law § 605 (e) should be available prospectively to EMTs applying for three-quarter disability retirement benefits under Retirement and Social Security Law § 607-b.

      . Prior to the enactment of section 607-b, Tier TV EMTs applied for performance-of-duty disability retirement benefits under Retirement and Social Security Law § 605, which generally entitled them to benefits equal to the greater of one third of their final average salary or one sixtieth of their final average salary, multiplied by the number of years of credited service (see Retirement and Social Security Law § 605 [d] [3]).


text:
    [814 NE2d 431, 781 NYS2d 261]
    Ona Brill et al., Appellants, v City of New York, Respondent, et al., Defendants.
    Argued May 5, 2004;
    decided June 10, 2004

      POINTS OF COUNSEL

      Palmeri & Gaven, New York City (John J. Palmen of counsel), for appellants.
    I. A properly filed prior notice map sufficiently alerted the City of New York of a dangerous condition in the area which reasonably encompassed the particular patent defect causing appellant’s accident. (Katz v City of New York, 8.7 NY2d 241; Laing v City of New York, 71 NY2d 912; Leary v City of Rochester, 115 AD2d 260, 67 NY2d 866; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Barrett v City of Buffalo, 96 AD2d 709; Jones v Town of Brookhaven, 227 AD2d 530; Brooks v City of Binghamton, 55 AD2d 482; Bergamini v Town of Babylon, 190 AD2d 650; Pier v Pavement Resource Mgrs., 144 AD2d 803; Weinreb v City of New York, 193 AD2d 596.) II. Respondent’s motion must be denied as it was not made within 120 days of the filing of the note of issue, it had not shown good cause why it had filed its motion late, and the delay was prejudicial to plaintiffs-appellants. (Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Luciano v Apple Maintenance & Servs., 289 AD2d 90; Samuel v A.T.P. Dev. Corp., 276 AD2d 685, 96 NY2d 708; Quinlan v Kaufman, 258 AD2d 453; Brunetti v City of New York, 286 AD2d 253; Caiola v Allcity Ins. Co., 277 AD2d 273; Morhart v City of New York, 267 AD2d 438; Scocozza v Tolia, 262 AD2d 548; Falcone v Khurana, 294 AD2d 535; Diaz v New York City Health & Hosps. Corp., 289 AD2d 365.)

      Michael A. Cardozo, Corporation Counsel, New York City (Ralph Janzen and Kristin M. Helmers of counsel), for respondent.
    I. Since the Big Apple Pothole and Sidewalk Protection Committee map failed to indicate a defect at the alleged accident location, as a matter of law, plaintiffs could not establish compliance with the prior written notice requirement. (Amabile v City of Buffalo, 93 NY2d 471; Woodson v City of New York, 93 NY2d 936; Katz v City of New York, 87 NY2d 241; Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917; Leary v City of Rochester, 67 NY2d 866; Poirier v City of Schenectady, 85 NY2d 310; Matter of Big Apple Pothole & Sidewalk Protection Comm. v Ameruso, 110 Misc 2d 688, 86 AD2d 986, 56 NY2d 507; Gruska v City of New York, 292 AD2d 498; Lane v City of New York, 274 AD2d 417; Kempler v City of New York, 272 AD2d 584.) II. Since the belated summary judgment motion was clearly meritorious, and plaintiffs were not prejudiced by the delay, the Supreme Court properly entertained the motion. (Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Bergamini v Town of Babylon, 190 AD2d 650; Jones v Town of Brookhaven, 227 AD2d 530; Auger v State of New York, 236 AD2d 177; Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778; Burns v Gonzalez, 307 AD2d 863; Lee v City of New York, 307 AD2d 256; Carvajal v M. Madison LLC, 297 AD2d 550; Luciano v Apple Maintenance & Servs., 289 AD2d 90; Borelli v Gegaj, 248 AD2d 299.)
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal puts before us a recurring scenario regarding the timing of summary judgment motions that ignores statutory law, disrupts trial calendars, and undermines the goals of orderliness and efficiency in state court practice.

On June 4, 1998, plaintiffs Ona and Maurice Brill brought suit against the City of New York and others for injuries Ona Brill allegedly suffered on February 15, 1998 when she tripped and fell on a public sidewalk in Brooklyn. Following discovery, on June 28, 2001, plaintiffs filed their note of issue and certificate of readiness, and sought a preference due to Ona Brill’s age.

On June 18, 2002, close to a year after the trial calendar papers were filed, the City moved for summary judgment. The City gave no explanation for filing the motion after the 120-day limit specified in CPLR 3212 (a), simply arguing that it did not have prior written notice of the alleged defect at the accident site and that plaintiffs could not show an exception to the prior written notice requirement. Supreme Court determined that in the interests of judicial economy, and since Mrs. Brill did not manifest any prejudice from the delay, it would decide the summary judgment motion on the merits. The court granted the City’s motion, finding plaintiffs did not prove that the City had notice of a defect at the accident site, and the Appellate Division affirmed.

We now reverse because, on these facts, Supreme Court should not have considered the merits of the City’s motion for summary judgment.

Since New York established its summary judgment procedure in 1921, summary judgment has proven a valuable, practical tool for resolving cases that involve only questions of law (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 112 [1984]). Summary judgment permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law, thereby avoiding needless litigation cost and delay. Where appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York State trial courts (see Siegel, NY Prac §§ 278-279, at 438-440 [3d ed]; see also Weinstein-Korn-Miller, NY Civ Prac 1Í 3212.01, at 32-157).

In that a summary judgment motion may resolve the entire case, obviously the timing of the motion is significant. CPLR 3212 (a) (as added by L 1962, ch 308) originally required only joinder of issue before a summary judgment motion could be made. In practice, however, the absence of an outside time limit for filing such motions became problematic, particularly when they were made on the eve of trial. Eleventh-hour summary judgment motions, sometimes used as a dilatory tactic, left inadequate time for reply or proper court consideration, and prejudiced litigants who had already devoted substantial resources to readying themselves for trial (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 128 [2000]; Auger v State of New York, 236 AD2d 177, 179 [3d Dept 1997]).

At the court system’s request, in 1996 the Legislature stepped in to ameliorate the problem by amending CPLR 3212 (a) to provide that:

“the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

By the amendment, the Legislature maintained the courts’ considerable discretion to fix a deadline for filing summary judgment motions, after joinder of issue, but mandated that no such deadline could be set earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown. Thus, the Legislature struck a balance, fixing an outside limit on the time for filing summary judgment motions, but allowing courts latitude to set an alternative limit or to consider untimely motions to accommodate genuine need.

Nonetheless, the practice of filing late summary judgment motions persisted, with the statutory “good cause” requirement a new litigation battleground. Some courts concluded that “good cause” required a satisfactory explanation for movant’s delay, and refused to entertain the motion if no such showing was made (see e.g. Carvajal v M. Madison LLC, 297 AD2d 550, 551 [1st Dept 2002]; Hilton v City of New Rochelle, 298 AD2d 360, 360 [2d Dept 2002]; Ripepe v Crown Equip. Corp., 300 AD2d 647 [2d Dept 2002]; Falcone v Khurana, 294 AD2d 535, 536 [2d Dept 2002]; Borelli v Gegaj, 248 AD2d 299 [1st Dept 1998]; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937, 937 [4th Dept 1998]; John v Bastien, 178 Misc 2d 664, 666-667 [Civ Ct, Kings County 1998]; see also Luciano v Apple Maintenance & Servs., 289 AD2d 90, 90-91 [1st Dept 2001] [movant’s explanation was an adequate showing of good cause for the delay]). Other courts read “good cause” to permit late filing where the motion had merit and there was no prejudice to the adversary (see e.g. Burns v Gonzalez, 307 AD2d 863, 864-865 [1st Dept 2003]; Lee v City of New York, 307 AD2d 256, 256 [2d Dept 2003]; Simmonds v Long Is. R.R. Co., 296 AD2d 487, 487 [2d Dept 2002]; Garrison v City of New York, 300 AD2d 14, 15 [1st Dept 2002], lv denied 99 NY2d 510 [2003]; Medina v Barbaro, 279 AD2d 615, 615-616 [2d Dept 2001]).

We conclude that “good cause” in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute—only the movant can show good cause—as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be “good cause.”

Here, it is undisputed that the City did not file its motion within the requisite 120 days specified by the statute, and it did not submit any reason for the delay. Thus, there was no “leave of court on good cause shown,” as required by CPLR 3212 (a). The violation is clear. What to do is the more vexing issue.

In Kihl v Pfeffer (94 NY2d 118, 123 [1999]), we affirmed the dismissal of a complaint for failure to respond to interrogatories within court-ordered time frames, observing that “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.” The present scenario, another example of sloppy practice threatening the integrity of our judicial system, rests instead on the violation of legislative mandate.

If this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated. If, on the other hand, the statute is applied as written and intended, an anomaly may result, in that a meritorious summary judgment motion may be denied, burdening the litigants and trial calendar with a case that in fact leaves nothing to try. Indeed, the statute should not “provide a safe haven for frivolous or meritless lawsuits” (Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778, 779 [3d Dept 1998] [Graffeo, J.]), which is precisely why practitioners should move for summary judgment within the prescribed time period or offer a legitimate reason for the delay.

As Professor David Siegel—who has tracked this “controversial topic”—has promised, “we’d think better of judicial decisions that absolutely refuse to extend the time for meritorious summary judgment motions if they would tell us what is to happen in the case” (79 Siegel’s Practice Review, Time Limit on Summary Judgment, at 2 [Jan. 1999]; see also 51 Siegel’s Practice Review, Strict Time Limit Placed on Motion for Summary Judgment, at 1 [Nov. 1996]; Siegel, NY Prac § 279, at 440 [3d ed]).

What is to happen in this case is that summary judgment will be reversed and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the case during trial. Hopefully, as a result of the courts’ refusal to countenance the statutory violation, there will be fewer, if any, such situations in the future, both because it is now clear that “good cause” means good cause for the delay, and because movants will develop a habit of compliance with the statutory deadlines for summary judgment motions rather than delay until trial looms.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion of the City of New York for summary judgment dismissing the complaint against it denied.

G.B. Smith, J. (dissenting). Because there was good cause for the trial court to entertain this motion and because the time of the litigants, jurors, lawyers, the judge, and other court personnel should not be wasted in going through the motions of a trial which has no merit and must be dismissed, I dissent.

On February 15, 1998, plaintiff Ona Brill decided to take a walk in an area of Brooklyn, New York. During the walk, she fell, allegedly because of a broken sidewalk. She sustained injuries to her left shoulder. Plaintiffs commenced an action against the City of New York and other defendants. The case against the other defendants was settled and only the action concerning the City of New York is before us. On June 28, 2001, plaintiffs filed a note of issue and a certificate of readiness. Subsequent to that filing, defendants filed a motion for summary judgment seeking dismissal of the action. The trial court granted the motion and the Appellate Division affirmed. This Court then granted leave to appeal.

CPLR 3212 (a) provides:

“Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

The trial court did not abuse its discretion in entertaining the motion. The good cause shown was the merits of the action. This action is governed by Administrative Code of the City of New York § 7-201 (c) (the Pothole Law). That section requires that the City of New York be given written notice of any defect in a sidewalk prior to a lawsuit. While the City was given notice of other sidewalk defects in the area near the accident, the City was not given notice of the defect which allegedly caused plaintiffs fall.

In reversing the order of the Appellate Division, the majority in effect states that the trial court and the Appellate Division should not have applied the law. The consequence of the reversal is that a trial will commence, giving a futile hope to the litigants and wasting the time of those same litigants, the jurors, the attorneys, the judge and other court personnel. Once the parties make an opening statement or plaintiffs put in their case indicating that the appropriate notice was not given, this case will again be dismissed.

Moreover, nothing that the defendant did prejudiced the plaintiff. The clear fact is that the plaintiff cannot prove a prima facie case and thus that she is entitled to prevail.

The majority interprets the phrase good cause to mean an excuse for not moving for summary judgment in a timely manner. Lower courts have interpreted the meaning of good cause in two different ways. One meaning is a reasonable excuse for an untimely motion (see Carvajal v M. Madison LLC, 297 AD2d 550, 551 [1st Dept 2002]; Hilton v City of New Rochelle, 298 AD2d 360 [2d Dept 2002]; Slate v State of New York, 284 AD2d 767, 769 [3d Dept 2001]; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937 [4th Dept 1998]). The other meaning includes the merits of a case in a determination of good cause (see Garrison v City of New York, 300 AD2d 14, 15 [1st Dept 2002], lv denied 99 NY2d 510 [2003]; Simmonds v Long Is. R.R. Co., 296 AD2d 487 [2d Dept 2002]). What is clear from the legislative history is that the Legislature sought to give the trial court wide discretion in entertaining a motion for summary judgment. The Legislature could not have intended to grant a futile hope to a litigant or to waste the time of a number of people when the state courts are as burdened as they are. Thus, I cannot agree that the 1996 amendment (L 1996, ch 492), which prohibited a motion for summary judgment more than 120 days after the filing of the note of issue except with leave of court and upon good cause shown, limited good cause to an excuse for an untimely motion. The issue of the merits of the plaintiff’s claim is squarely presented here and should be addressed.

Moreover, even if good cause is interpreted to mean only an excuse for an untimely motion, the appropriate remedy is to progressively impose higher penalties by way of costs and sanctions, and even, in an appropriate case, preclusion of the defendant from, asserting the defense of the Pothole Law. Thus, I agree with the trial court and the Appellate Division that dismissal is appropriate in this case.

Accordingly, I dissent.

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

Order reversed, etc.

      . The case has been settled with the codefendants.

      . Nor have we considered the merits of the City’s motion.

      . (See D’Aloisi v City of New York, 7 AD3d 750 [2d Dept 2004]; Mendez v City of New York, 7 AD3d 766 [2d Dept 2004].) While we of course express no view on the merits of the two recent Appellate Division decisions, as the cases cited in Kihl and in this opinion reveal, failure to adhere to deadlines— whether court-ordered or statutory—is not limited to the City of New York.

      . The dissent proposes monetary sanctions and preclusion as remedies (dissenting op at 655-656). Preclusion on the merits may, as a rule for the future, be wholly disproportionate to the violation. Without considering whether we may impose sanctions against a municipality for violating a statute, six of us conclude that denying summary judgment—simply not considering the merits of an unexcused, untimely motion—is not only the correct remedy under the law but also will most effectively bring an undesirable practice to an end.

       See, for example, McCain v Dinkins (84 NY2d 216 [1994] [imposition of fines against City of New York following contempt proceedings and citing Judiciary Law § 753 (A) (3) as authority for said imposition]).


text:
    [814 NE2d 437, 781 NYS2d 267]
    In the Matter of New York Civil Liberties Union, Appellant, v City of Schenectady et al., Respondents.
    Argued June 1, 2004;
    decided June 29, 2004

      POINTS OF COUNSEL

      William Schurtman, Albany, for appellant.
    The court below erred in holding that there is a blanket intra-agency exemption under the Freedom of Information Law for factual data in incident reports relating to the use of force by police officers. (Matter of Gannett Co. v James, 86 AD2d 744, 56 NY2d 502; Matter of Newsday, Inc. v New York City Police Dept., 133 AD2d 4; Matter of Gould v New York City Police Dept., 89 NY2d 267; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562; Matter of Russo v Nassau County Community Coll., 81 NY2d 690.)

      Alfred L. Goldberger, Corporation Counsel, Schenectady (L. John Van Norden of counsel), for respondent.
    Police agency use of force forms, although at least in part comprised of factual data, are exempt from Freedom of Information Law disclosure because the preparation and filing of the form involves an individual, qualitative assessment which reflects an opinion rather than raw data. (Matter of Gannett Co. v James, 86 AD2d 744, 56 NY2d 502; Matter of Newsday, Inc. v New York City Police Dept., 133 AD2d 4.)

      McNamee, Lochner, Titus & Williams, PC., Albany (.Michael J. Grygiel and Mathew P. Barry of counsel), for New York Newspaper Publishers Association, Inc., and others, amici cu-
    riae.
    I. The Freedom of Information Law’s intra-agency exemption does not bar the public from obtaining the factual information contained in police use of force records. (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Newsday, Inc. v Sise, 71 NY2d 146, 486 US 1056; Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246; Matter of Lucas v Pastor, 117 AD2d 736; Matter of News-day, Inc. v Empire State Dev. Corp., 98 NY2d 359; Matter of Journal Publ. Co. v Office of Special Prosecutor, 131 Misc 2d 417; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294; Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106.) II. Respondents’ misinterpretation of the Freedom of Information Law’s intra-agency exemption would impose a wall of secrecy over police use of force records, a result which would diminish public accountability and has been universally rejected by other state courts. (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562; Matter of Gannett Co. v James, 86 AD2d 744; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Newsday, Inc. v New York City Police Dept. 133 AD2d 4; United States Dept. of Justice v Reporters Comm. for Freedom of Press, 489 US 749; Environmental Protection Agency v Mink, 410 US 73; Department of Air Force v Rose, 425 US 352.)
   OPINION OF THE COURT

Chief Judge Kaye.

The question before us is whether “[fincident reports prepared by [Schenectady] police officers pertaining to use of force” are subject to production pursuant to a Freedom of Information Law (FOIL) request made by petitioner New York Civil Liberties Union (NYCLU). The muddled history of this case determines our answer to that question.

On April 24, 2000—more than four years ago—the NYCLU sent a FOIL request to the City of Schenectady requesting (among other things) “[a] 11 documents, memoranda, reports and/or other writings referencing . . . [u]se of force by police officers against civilians.” The City responded that the request was “too broad,” and the NYCLU thereafter limited its request to “[fincident reports prepared by police officers pertaining to use of force.” The City made no response. The NYCLU then filed an appeal with the Mayor, as the Records Access Appeals Officer (see Public Officers Law § 89). The City again made no response and, on May 7, 2001, the Department of State Committee on Open Government issued an Advisory Opinion concluding that the City had failed to comply with FOIL.

With still no response, on August 1, 2001 the NYCLU filed this CPLR article 78 proceeding alleging that the City violated FOIL by neither producing the requested records nor submitting a particularized, specific justification for its failure to do so. The City then produced certain documents including Police Objective Review Committee’s Annual Reports for 1999 and 2000 and offered to provide access to the Corporation Counsel’s “Claim Book” listing all filed claims.

Before Supreme Court, the City represented that the records being sought were “of the same type” as those sought in Matter of Gannett Co. v James (86 AD2d 744 [4th Dept 1982], lv denied 56 NY2d 502 [1982]) where the “Use of Force” form utilized by the Rochester Police Department was exempt from FOIL disclosure. Citing Gannett, Supreme Court agreed that the City was not required to produce the incident reports because “case authority squarely holds that incident reports prepared by police officers detailing use of force are exempt from disclosure under Public Officers Law § 87 (2) (g).” Before the Appellate Division, the City again argued that the Schenectady use of force form was “essentially identical” to the form used in Gannett and therefore production was not required. The Appellate Division affirmed, concluding that “the Court of Appeals’ decision in [.Matter of Gould v New York City Police Dept., 89 NY2d 267 (1996)] neither erodes nor overrules the Fourth Department’s holding in Gannett Co.” (306 AD2d 784, 786 [3d Dept 2003].) We granted the NYCLU leave to appeal (1 NY3d 503 [2003]).

After the NYCLU’s brief was filed, the City informed this Court by letter that it had discovered “a misunderstanding of the record.” Supported by the affidavit of the Police Chief enclosed with its letter, the City represented to us that it “does not have or utilize a ‘Use of Force’ form. In fact, the City has no routine procedure for reporting use of force other than references that might be included in standard incident and arrest reports which would normally be available for inspection pursuant to NY Public Officers Law § 87, or in the course of internal affairs investigations which would be exempt from public inspection pursuant to POL § 87 (2) (a) and Civil Rights Law § 50-a.” Additionally, the City wrote us, “the present Administration would have likely agreed to disclosure of use of force materials, redacted to safeguard exempt information, or to an in camera review by Supreme Court.” The Police Chief’s affidavit, however, further states that “searching the thousands of such reports each year to determine whether any reference to the use of force is entered therein would present a considerable burden on the personnel of my department.”

The NYCLU countered that it had been given a “runaround for the past four years,” and asks us to order production subject to an in camera inspection of records as to which an exemption is claimed. The City’s brief before this Court—completed after its representation that it does not have any use of force forms— continues to address the theoretical issue regarding whether use of force forms are exempt from disclosure.

The City’s inconsistent position presents a situation far different from the leave application, and creates a quandary. Though the legal issue that has been briefed centers on use of force forms essentially identical to Rochester’s in Gannett (see Matter of Newsday, Inc. v New York City Police Dept., 133 AD2d 4, 18-19 [1st Dept 1987] [annexing the form]), we now know from correspondence and oral argument that in fact the City has no such records. Deciding whether such documents, had they existed, would have been subject to FOIL production is thus an academic issue. We do not decide academic issues, and on this record have no occasion to consider whether Gannett has any continuing viability after Gould. By the same token, the City acknowledges that its incident and arrest reports would normally be subject to FOIL, and that it would agree to disclosure of existing use of force materials, redacted to safeguard exempt information, or to an in camera review, but maintains that searching the thousands of such documents involved would be burdensome.

In this setting, the Appellate Division conclusion that “the denial of petitioner’s request in this regard was entirely proper” (306 AD2d at 786) cannot stand. The City does have incident and arrest reports that may include reference to use of force, and would be willing to disclose those subject to appropriate redaction or review. Denial of petitioner’s request was therefore not “entirely proper.” The shifting sands have, however, obscured even what records are in dispute at this time, although the parties at oral argument indicated essential agreement that at least documents evidencing assaults or injuries to a police officer or suspect, or use of a weapon, and documents pertaining to resisting arrest would pertain to use of force and would be subject to FOIL production.

Oral argument before the Court of Appeals is not the time or place for fixing the precise parameters of records “pertaining to use of force.” What is clear above all is that the “runaround” must end. The matter should therefore be remitted to Supreme Court, for its direction—consistent with the City’s obligations and acknowledgments—as to documents to be produced, subject to review by that court or a referee as necessary. The City is reminded that government records are “presumptively open,” statutory exemptions are “narrowly construed,” and the City must articulate a “particularized and specific justification” for nondisclosure (Matter of Gould v New York City Police Dept. 89 NY2d 267, 274, 275 [1996] [internal quotation marks omitted]). We trust that the City’s present attitude toward its disclosure obligations, together with Supreme Court’s expeditious resolution of disputed issues, will bring a prompt and satisfactory end to this matter.

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

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

Order reversed, etc.


author: R.S. Smith, J.

text:
    [814 NE2d 440, 781 NYS2d 270]
    Anonymous, Respondent, v Bureau of Professional Medical Conduct/State Board for Professional Medical Conduct et al., Appellants.
    Argued June 1, 2004;
    decided June 29, 2004

      POINTS OF COUNSEL

      Eliot Spitzer, Attorney General, New York City {James M. Hershler, Michael S. Belohlavek and Marion R. Buchbinder of counsel), for appellants.
    I. The Health Department’s publication of the complete text of final determinations and orders which both sustain and dismiss professional misconduct charges is consistent with the law and public policy. (Matter of McBamette v Sobol, 83 NY2d 333; Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1; People ex rel. Karlin v Culkin, 248 NY 465; Matter of J.P. v Chassin, 189 AD2d 137, 82 NY2d 694; Doe v Office of Professional Med. Conduct, 81 NY2d 1050; Matter of Di Marsico v Ambach, 48 NY2d 576; Matter of Richstone v Novello, 284 AD2d 737; Matter of Selkin v State Bd. for Professional Med. Conduct, 279 AD2d 720; Matter of Mucciolo v Fernandez, 195 AD2d 623; Matter of Suslovich v New York State Educ. Dept., 174 AD 2d 802.) II. Supreme Court correctly found that the Health Department did not violate petitioner’s equal protection rights. (Matter of Allen v Howe, 84 NY2d 665; Matter of Camp

      erlengo v Bareli, 164 AD2d 633; Matter of Mucciolo v Fernandez, 195 AD2d 623; Heller v Doe, 509 US 312.)

      Law Offices of Charles A. Singer, Melville (Charles A. Singer of counsel), for respondent.
    I. As found by the Appellate Division, the public policy of this State, the express terms of Public Health Law § 230, and logic, decency and fairness require that appellants keep confidential, after final determination, the existence and terms of dismissed and rejected charges and factual accusations. (People ex rel. Karlin v Culkin, 248 NY 465; Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1; Matter of Doe v Axelrod, 123 AD2d 21, 71 NY2d 484; Doe v Office of Professional Med. Conduct, 81 NY2d 1050; Matter of J.P. v Chassin, 82 NY2d 694; Matter of McBarnette v Sobol, 83 NY2d 333; Matter of Judge Rotenberg Educ. Ctr. v Maul, 91 NY2d 298; Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662; Dougherty v Carver Fed. Sav. Bank, 112 F3d 613.) II. Appellants’ arguments are unsupported and/or defy logic and basic fairness. (Doe v Office of Professional Med. Conduct, 81 NY2d 1050; Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1.) III. If, as appellants argue, Public Health Law § 230 is construed to require public dissemination of rejected accusations of serious professional misconduct because of a finding of liability for an accompanying technical violation which, had it been alleged separately, would remain confidential, then the statute and its implementation must be found unconstitutional. (Lehr v Robertson, 463 US 248; Sound Aircraft Servs. v Town of E. Hampton, 192 F3d 329.)
   OPINION OF THE COURT

R.S. Smith, J.

In Doe v Office of Professional Med. Conduct (81 NY2d 1050, 1052 [1993]) we interpreted Public Health Law § 230 (9) to require that disciplinary proceedings brought against physicians “remain confidential until finally determined.” We decide today that, where the proceedings are determined in the physician’s favor, the requirement of confidentiality continues to exist after the determination. We also decide that in this case, where a physician was exonerated of all the charges against him except one minor one not closely related to the others, the Department of Health abused its discretion by releasing to the public all of the charges and their disposition.

Facts

Petitioner-respondent (petitioner) is a doctor practicing in Manhattan. On October 28, 1999, the State Board for Professional Medical Conduct, the Department’s professional disciplinary agency, brought charges against him for “willfully harassing, abusing a patient physically,” “failure to maintain records,” “moral unfitness,” “fraudulent practice” and “practicing beyond the scope.” The charges were based on the complaint of a woman who said she had been petitioner’s patient.

The Board, relying on the assertions of the complaining witness, alleged that petitioner had treated her “late one evening” at his office for a “sinus infection and a headache . . . with massage and acupuncture.” During the treatment, according to the allegations, petitioner induced her to remove clothing, massaged her intimately and kissed her. It was also alleged that he engaged in the practice of acupuncture without an appropriate certificate or license, and that he failed to maintain a medical record accurately reflecting the treatment, condition and/or diagnosis of the complaining witness.

A hearing was held before a committee on professional conduct, as provided by Public Health Law § 230 (10) (e) and (f). After the hearing, the Committee issued a “Determination and Order” on April 28, 2000, rejecting all of the charges except for one instance of failure to maintain a medical record. The Committee found that, while there was an “office encounter” between the complaining witness and petitioner, the encounter “was of a social nature.” It found that the complaining witness did not go to petitioner’s office for medical reasons, and that while they were there he did not offer medical care and she did not request it. The Committee noted that petitioner was “foolish” in choosing his office as the location of this social interaction, but found that no professional misconduct in connection with the office encounter had been proved.

The Committee also found that, a week or more after the office meeting, the complaining witness asked petitioner to give her a prescription for sinus problems; that he phoned in a prescription of Cipro for her; and that he failed to maintain a record of having done so. The Committee stated that it had “discussed giving [petitioner] an administrative warning” for this “technical violation,” but had been advised that a mere warning could not be issued after a hearing, and therefore decided that the appropriate penalty was a reprimand. Petitioner did not seek review of this determination.

It is the position of the Department, as expressed in this litigation, that all final determinations in physician disciplinary proceedings, whether favorable or unfavorable to the physician accused, may be made available to the public. It is the Department’s policy, however, to post a record of the charges made and their determination on its Web site only in cases where some disciplinary order against a physician has been issued. If any discipline is imposed, the Department posts all of the charges and determinations, without redaction. Accordingly, after petitioner’s time to seek review of the Committee’s determination had expired, the charges against him and the Committee’s resolution of them became available on the Internet. Petitioner apparently did not discover this for some considerable time.

On February 14, 2002, petitioner’s attorney requested by letter that the Department withdraw all references to the proceedings from its Internet site, and maintain “all records pertaining to this matter ... in absolute confidence.” The request was rejected, and petitioner brought the present proceeding pursuant to CPLR article 78, asking that the Board and the Department be compelled to withdraw the materials in question from public access and to keep them confidential. Supreme Court dismissed the petition. The Appellate Division reversed and granted the petition, directing the Board and the Department to “withdraw from public access those portions of the statement of charges, determination and order, and any other records which relate in any way to the charges which were not sustained” (309 AD2d 44, 53 [2003]). The Appellate Division granted leave to appeal, and we now affirm the Appellate Division’s order.

Discussion

Our decision in Doe is the starting point for our analysis. Doe was brought by a physician while disciplinary proceedings were pending against him. He asked that the proceedings be closed, and we held he was entitled to that relief. Our decision was based on Public Health Law § 230 (9), which provides:

“Notwithstanding any other provisions of law, neither the proceedings nor the records of any such committee [i.e., a committee on professional conduct] shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided. No person in attendance at a meeting of any such committee shall be required to testify as to what transpired thereat. The prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.”

Although this section on its face prohibits only disclosure under the CPLR’s discovery provisions, we said in Doe, relying on our prior decision in Matter of John P. v Whalen (54 NY2d 89 [1981]), that section 230 (9) “when read in conjunction with the statute as a whole . . . mandates] confidentiality in physician disciplinary proceedings” (Doe, 81 NY2d at 1052). There would be little point in section 230 (9)’s prohibition on civil discovery if the materials protected by that statute were publicly available.

The issue in this case arises from our statement in Doe that “[o]ur construction of the statute is consistent with the general policy that disciplinary proceedings involving licensed professionals remain confidential until finally determined” (id. [emphasis added]). The Department interprets this language to mean that, after final determination, the confidentiality restriction ceases to exist, whether the physician is found guilty or innocent of the charges. The Department does not affirmatively publicize determinations unless they are, at least in part, adverse to the physician, but that in the Department’s view is a matter of its own choice, not a legal requirement. Petitioner, however, argues that the quoted language from Doe means only that proceedings can become public after a final determination adverse to the physician, and that proceedings in which the physician is exonerated must remain confidential. We agree with petitioner.

The “general policy” we relied on in Doe relating to “disciplinary proceedings involving licensed professionals” was intended, in significant part, to protect professionals against the disastrous effect that public knowledge of unfounded charges can have on a professional career. “Reputation in such a calling is a plant of tender growth, and its bloom, once lost, is not easily restored” (People ex rel. Karlin v Culkin, 248 NY 465, 478 [1928] [Cardozo, Ch. J.] [referring to the legal profession]). The Department argues that dissemination of unfounded charges after they have been resolved will not injure a doctor’s reputation, because the public, in learning of the charges, will also learn that they have been dismissed. We conclude, as did the Appellate Division, that this is unrealistic. Many people who learn that a doctor has been charged with misconduct will think it possible that there was something to the charges, even if they were not upheld. Belief in that possibility will often be enough to make a prospective patient seek out another doctor. No one, but especially not a professional whose livelihood depends on being thought trustworthy, would want it generally known that he was accused by a state agency (though found not guilty) of harassment, abuse, “moral unfitness” for his profession and fraud.

It is true, as we noted in Doe, that a professional’s interest in the confidentiality of charges brought against him is not the only relevant policy consideration. There is a strong public interest in the enforcement of the rules against professional misconduct, and it can be argued that the public should have a right to know all the details of enforcement proceedings so that it can evaluate, among other things, the vigor and efficiency with which allegations of misconduct are being pursued. As we said in Doe, however, the choice between “conflicting policy values” is best made by the Legislature (Doe, 81 NY2d at 1053). We decided in Doe that the applicable legislation, Public Health Law § 230 (9), required that pending disciplinary proceedings not be open to the public, and we now hold that it also requires confidentiality of terminated proceedings that have been resolved in the physician’s favor.

The language of section 230 (9) gives no support to the idea that the confidentiality provided for in that section is limited to pending proceedings. On the contrary, the words “neither the proceedings nor the records . . . shall be subject to disclosure” (emphasis added) imply that pending and terminated proceedings should be treated alike. We do not read this to mean that all terminated proceedings, even those in which there have been findings of misconduct, must remain confidential, but the statute clearly does not support the Department’s view that the termination of proceedings by itself is enough to make the statute’s protections disappear.

Other subdivisions of Public Health Law § 230 govern the confidentiality or public availability of materials relating to specific physician disciplinary proceedings. These subdivisions, while they do not directly answer the question presented here, help to give an overall picture of the statutory framework. Two subdivisions provide that certain actions adverse to the physician, short of formal discipline, shall remain confidential: section 230 (10) (m) (ii) provides that “ [a]dministrative warnings and consultations shall be confidential” and section 230 (17) (a) and (c) provide that an order for “monitoring” of a physician (entered when “there is reason to believe that the licensee is unable to practice medicine with reasonable skill and safety to patients”) “shall be kept confidential . . . unless the licensee refuses to comply with the order.” On the other hand, one subdivision provides that the most serious forms of discipline are not confidential, even pending an administrative appeal: under section 230 (10) (g) the “findings, conclusions, determinations and order” of a committee on professional conduct “shall become public upon issuance in any case in which annulment, suspension without stay or revocation of the licensee’s license is ordered.” This provision was enacted to change the previous practice, in which no disciplinary findings were made public until the administrative review process had been completed (see Sponsor’s Letter to Counsel, Aug. 1, 1996, Bill Jacket, L 1996, ch 627).

No statute explicitly provides either for confidentiality or public release of the records of physician disciplinary proceedings where such proceedings result in some lesser discipline than “annulment, suspension without stay or revocation of the licensee’s license” or in dismissal of the charges. Strong reasons, however, support the Department’s policy of making public the records of proceedings in the first category after the administrative review process is complete. The public’s interest in knowing that a physician has been subjected to discipline—even, as in this case, the relatively mild discipline of a reprimand—is obvious, and we cannot conclude, in the absence of an express statutory provision, that the Legislature meant to withhold this information from the public. But in the case of a physician who has been wholly exonerated, the policy considerations are very different, and lead us to interpret Public Health Law § 230 (9) as prohibiting public disclosure. It is hard to imagine why the Legislature would have wanted to grant the public access to records of terminated proceedings that led to a doctor’s complete exoneration, while keeping confidential proceedings in which a doctor was subjected to “warning[ ],” “consultation[ ]” or “monitoring.”

In the sentence in Doe on which the Department relies, we referred to “disciplinary proceedings involving licensed professionals” and cited cases involving discipline of attorneys and judges, as well as medical professionals (Doe, 81 NY2d at 1052). It was then, and remains, our view that the policies governing confidentiality in these professions are broadly similar, though each is governed by its own specific statutes and rules. The statutes governing judges and lawyers clearly require that disciplinary proceedings remain confidential, even after termination, where there is no finding of wrongdoing (Judiciary Law § 45 [1] [judges]; § 90 [10] [attorneys]). While the Legislature has not spoken as clearly in the case of doctors, we believe it intended the rule to be the same. We therefore hold that the statutes governing physician disciplinary proceedings require confidentiality, even after the termination of the proceedings, where no charge against the doctor is sustained.

This holding does not resolve this case, for here one charge of wrongdoing was sustained while all the others were dismissed. Petitioner contends that the Department had an obligation to separate the sustained charge from the dismissed ones, and to make public only materials relating to the former. Under the unusual circumstances of this case, we agree.

In cases where disciplinary proceedings lead to a mixed result, the Department should have discretion in deciding whether its records should be redacted to keep confidential material relating to the charges that were not sustained. In many cases, the Department may well be justified in refusing to redact. The Department is entitled to consider not only the extent to which public knowledge of the dismissed charges would aggravate the damage to the physician’s reputation that is done when the sustained charges are publicized; it may also consider the administrative difficulty of redaction, and the importance of making the proceedings that resulted in discipline comprehensible to the public. In this case, however, we conclude that making the dismissed charges public was an abuse of discretion.

Here, the dismissed charges and the charge that was sustained were very different in kind. The dismissed charges related to a romantic encounter; the sustained charge to a telephoned prescription. They were also very different in gravity. The dismissed charges involved alleged abuse of a patient’s trust, while the sustained charge involved a bit of carelessness in record-keeping that, apparently, would have resulted in no more than a confidential “administrative warning” if the dismissed charges had not been present. Finally, the dismissed charges and the sustained charge did not arise out of simultaneous or closely-connected events. The record-keeping failure occurred at least a week after the office encounter. On these facts, it is impossible to justify permitting a minor, “technical violation” to result in sensational, but discredited, charges of serious wrongdoing becoming available to the public.

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

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

Order affirmed, etc.

       In Supreme Court, petitioner asserted that all the proceedings relating to him should remain confidential. He has now abandoned that contention.


author: Memorandum.

text:
    [811 NE2d 1, 778 NYS2d 739]
    The People of the State of New York, Respondent, v Edward Williams, Appellant.
    Decided March 25, 2004
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City CLaura I. Appleman and Robert S. Dean of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Meredith Boylan and Susan Axelrod of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant was convicted of criminal possession of a weapon in the second and third degrees (Penal Law § 265.03 [2]; § 265.02 [4], respectively) and criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]).

The court called 18 prospective jurors for the initial round of jury selection. Of those, seven were ultimately chosen to serve. Over the objection of both sides, the court then ordered one prospective juror at a time put into the box for questioning and challenges. Jury selection continued in this manner until the jury was completed. Defendant contends that this violated CPL 270.15 (3) and that at least five jurors should have been placed in the box.

CPL 270.15 (3) states in relevant part, “The court may thereupon direct that the persons excluded be replaced in the jury box by an equal number from the panel or, in its discretion, direct that all sworn jurors be removed from the jury box and that the jury box be occupied by such additional number of persons from the panel as the court shall direct.” This section gives the court discretion in the number of prospective jurors placed in the jury box following completion of the first round. Indeed, as this Court made clear in People v Alston, the trial court has discretion to “remove sworn jurors and fill the box with any number of jurors that it chooses.” (88 NY2d 519, 524 [1996].) While the trial court’s procedure was not unlawful, it may have needlessly prolonged jury selection, and should not be followed.

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

Order affirmed in a memorandum.


text:
    [811 NE2d 2, 778 NYS2d 740]
    In the Matter of Citineighbors Coalition of Historic Carnegie Hill, by Júrate Kazickas et al., as Cochairs, et al., Appellants, v New York City Landmarks Preservation Commission et al., Respondents.
    Decided March 25, 2004
    APPEARANCES OF COUNSEL

      Nixon Peabody LLP, New York City (Roger R. Crane, Jr. and Erika J. Duthiers of counsel), for appellants.

      Bryan Cave LLP, New York City (Robert S. Davis, Judith M. Gallent and Inger K. Hultgren of counsel), for Tamarkin Co. and another, respondents.

      Michael A. Cardozo, Corporation Counsel, New York City (Dona B. Morris, Francis F. Caputo, Mark A. Silberman and
      Dana H. Biberman of counsel), for New York City Landmarks Preservation Commission and another, respondents.

      Kramer Levin Naftalis & Frankel, LLP, New York City (<Jeffrey L. Braun, Michael T Sillerman and Richard G. Leland of counsel), for Real Estate Board of New York, Inc., amicus curiae.

      Christopher Rizzo and Dorothy M. Miner, New York City, for Preservation League of New York State and others, amici curiae.

      Jack L. Lester, New York City, for Carnegie Hill Neighbors, Inc., amicus curiae.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, with costs, as moot.

On June 10, 2002, the New York City Landmarks Preservation Commission issued a certificate of appropriateness (COA) approving a proposal for 47 East 91st Street, LLC, the property owner, and Tamarkin Co., a real estate developer, to construct an eight-story building with a one-story penthouse atop an existing one-story building located on the northeast corner of Madison Avenue and East 91st Street, which is within the Carnegie Hill Historic District. The Commission issued the COA after a 2V2-year review as a consequence of which the property owner and developer twice scaled back their initial proposal. The total projected cost of the work approved by the COA was approximately $36.7 million.

On July 2, 2002, petitioners commenced this CPLR article 78 proceeding to annul the COA. They did not apply for a temporary restraining order or preliminary injunction to halt the highly visible construction work by then underway at the site. Petitioners argued, as relevant on this appeal, that the Commission’s issuance of a COA was a discretionary act requiring compliance with the environmental review procedures of the State Environmental Quality Review Act (SEQRA). On January 8, 2003, Supreme Court denied the petition and dismissed the proceeding, concluding that issuance of a COA is a ministerial act exempt from SEQRA. The Appellate Division subsequently affirmed (306 AD2d 113 [1st Dept 2003]), and we granted leave to appeal (100 NY2d 514 [2003]).

“Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002]). Where the change in circumstances involves a construction project, we must consider how far the work has progressed towards completion. Because a “race to completion cannot be determinative,” however, other factors bear on mootness in this context as well. (Id.) “Chief among them has been a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” (Dreikausen, 98 NY2d at 173). Also significant are whether work was undertaken without authority or in bad faith, and whether substantially completed work is “readily undone, without undue hardship” (id.). Further, we may elect to retain jurisdiction despite mootness if recurring novel or substantial issues are sufficiently evanescent to evade review otherwise.

This construction project is substantially complete. By July 31, 2003, after more than a year of construction, the building’s steel and concrete structure, including its supporting columns and floors, had been erected; the brick facade was 100% complete; and 90% of the window frames had been installed. The property owner and developer had already spent roughly $25.7 million. Further, we cannot say that the building’s top several stories may be readily demolished without undue hardship, a remedy that petitioners suggest remains available. As the property owner and developer point out, reducing the building’s height would inevitably alter the proportion, mass and details of a design that the Commission determined would fit in with the special architectural and historic character of the district.

Nor have the property owner and developer engaged in an unseemly race to completion intended to moot petitioners’ lawsuit. After obtaining the approvals necessary to commence construction—a time-consuming endeavor—the property owner and developer had every business incentive to complete the building as quickly as possible so as to profit from their investment and avoid paying interest on construction loans.

Importantly, petitioners did not try to enjoin construction during this litigation’s pendency, nonfeasance that they chalk up to “monetary constraints” and the unlikelihood of success. In short, petitioners simply assumed that Supreme Court would not grant them injunctive relief or, in the alternative, would require an undertaking in an amount more than they could or wanted to give. Under Dreikausen, however, petitioners were required, at a minimum, to seek an injunction in the circumstances presented here. Having pursued a strategy that foisted all financial risks (other than their own legal fees and related expenses) onto the property owner and the developer, petitioners may not expect us to overlook the substantial completion of this construction project.

Finally, the exception to the mootness doctrine does not apply because “[t]here is a realistic likelihood that the issues presented here will recur with an adequately developed record and with a timely opportunity for review” (.Matter of GoldGreenberger v Human Resources Admin, of City of N.Y., 77 NY2d 973, 974-975 [1991]). Specifically, those objecting to a COA on SEQRA grounds may safeguard their challenge against mootness by promptly requesting injunctive relief.

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

Appeal dismissed, with costs, in a memorandum.


text:
    Perry Frankel, Respondent, v Karyn Frankel, Defendant. Schlissel, Ostrow, Karabatos, Poepplein & Taub, PLLC, Nonparty-Appellant.
    Submitted March 22, 2004;
    decided March 25, 2004
   Motion by American Academy of Matrimonial Lawyers, New York Chapter for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 15 days.


text:
    Dusan M. Jevtic et al., Appellants, v Liberty Mutual Insurance Co. et al., Respondents.
    Submitted November 26, 2003;
    decided March 25, 2004
   Motion by Dusan Jevtic, insofar as it seeks leave to appeal on behalf of Ljubica Jevtic, dismissed upon the ground that Dusan Jevtic is not authorized to represent Ljubica Jevtic; motion for leave to appeal otherwise denied.


text:
    In the Matter of Sonya Latimore (Admitted as Sonya Whitten Latimore), a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted November 10, 2003;
    decided March 25, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellant’s reinstatement petition, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining part of the Appellate Division order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Local Government Assistance Corporation et al., Appellants-Respondents, v Sales Tax Asset Receivable Corporation et al., Respondents-Appellants.
    Submitted March 15, 2004;
    decided March 25, 2004
   Judge R.S. Smith taking no part.


text:
    In the Matter of Emmanuel D. Patterson, Appellant, v James L. Berbary et al., Respondents.
    Submitted January 26, 2004;
    decided March 25, 2004
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Francisco Carranza, Appellant.
    Submitted March 1, 2004;
    decided March 25, 2004
   Motion for assignment of counsel granted and Mark Diamond, Esq., Box 1895, Murray Hill Station, New York, NY 10016 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James Combest, Appellant.
    Submitted March 22, 2004;
    decided March 25, 2004
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Charles Daniels, Appellant.
    Submitted March 8, 2004;
    decided March 25, 2004
   Motion for assignment of counsel granted and Laura Johnson, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Nicholson McCoy, Appellant.
    Submitted February 23, 2004;
    decided March 25, 2004
   Motion by Eliot Spitzer, Attorney General of the State of New York, for an order pursuant to Executive Law § 71 permitting movant to file a brief and participate in oral argument of the appeal, granted in each respect.


text:
    The People of the State of New York, Respondent, v Nicholson McCoy, Appellant.
    Submitted March 22, 2004;
    decided March 25, 2004
   Motion by the Brennan Center for Justice at NYU School of Law et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Ana Marie Santi, Appellant.
    Submitted March 15, 2004;
    decided March 25, 2004
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    64th Associates, L.L.C., Appellant, v Manhattan Eye, Ear & Throat Hospital et al., Respondents.
    Submitted March 22, 2004;
    decided March 25, 2004
   Motion by Eliot Spitzer, Attorney General of the State of New York, for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    [811 NE2d 5, 778 NYS2d 743]
    In the Matter of Hertz Corporation, Appellant. Commissioner of Labor, Respondent.
    Decided March 30, 2004

      APPEARANCES OF COUNSEL

      Akin Gump Strauss Hauer & Feld, LLP, New York City (Jonathan L. Sulds and Lori J. Pennay of counsel), for appellant.

      Eliot Spitzer, Attorney General, New York City (Steven Segall, Caitlin J. Halligan, Peter H. Schiff M. Patricia Smith and Steven Koton of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court with directions to remand to respondent for further proceedings in accordance with this memorandum.

Claimant was engaged by STARS (Special Travel Agency Representative Service Network), a marketing organization operated by Hertz Corporation. She visited travel agencies to promote Hertz’s products by distributing sales materials and making presentations. Within her assigned territory, claimant chose which agencies she would visit and when she would visit them, was compensated on a per-visit basis, was not required to attend meetings, had minimal supervision and was free to sell products that did not compete with Hertz. Her contract with Hertz identified her as an independent contractor, and Hertz reported her pay on a 1099 form.

Substantial evidence does not exist to support the Unemployment Insurance Appeal Board’s determination that claimant was a Hertz employee for purposes of receiving unemployment insurance benefits. An employer-employee relationship exists when the evidence demonstrates that the employer exercises control over the results produced by claimant or the means used to achieve the results (Matter of 12 Cornelia St, 56 NY2d 895, 897 [1982]). Such evidence was lacking here. Incidental control over the results produced—without further evidence of control over the means employed to achieve the results—will not constitute substantial evidence of an employer-employee relationship (Matter of Ted Is Back Corp., 64 NY2d 725, 726 [1984]).

That Hertz gave claimant instruction on what to wear, what products to promote and how to make a presentation does not support the conclusion that claimant was an employee. “The requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either” (Matter of Werner, 210 AD2d 526, 528 [3d Dept 1994]).

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

Order reversed, etc.


text:
    New York Telephone Company, Appellant, v Nassau County et al., Respondents. (Action No. 1.) In the Matter of New York Water Service Corporation, Appellant, v Nassau County et al., Respondents. (Proceeding No. 1.) In the Matter of Long Island Water Corporation, Appellant, v Nassau County et al., Respondents. (Proceeding No. 2.)
    Submitted November 17, 2003;
    decided March 30, 2004
   Motion to strike portions of respondents’ brief denied.


text:
    Primagency, Inc., Respondent, v V-Formation, Inc., Appellant.
    Submitted February 17, 2004;
    decided March 30, 2004
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of the motion to vacate, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Lashawn Winthrop, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted February 23, 2004;
    decided March 30, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying summary relief, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    [810 NE2d 907, 778 NYS2d 455]
    In the Matter of Stanley Moore, Appellant, v Brion D. Travis, as Chair of the New York State Division of Parole, Respondent.
    Decided April 1, 2004

      APPEARANCES OF COUNSEL

      Stanley Moore, appellant pro se.

      Eliot Spitzer, Attorney General, Albany (Frank Brady, Daniel Smirlock and Wayne L. Benjamin of counsel), for respondent.

      Harold V. Ferguson, Jr., Brooklyn, for New York State Defenders Association, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed without costs. Under the circumstances of this case, the Division of Parole’s denial of petitioner’s belated request to expunge misinformation which has already been corrected and upon which the Division does not rely was reasonable (see Matter of Pell v Board of Educ., 34 NY2d 222, 231 [1974]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, affirmed, without costs, in a memorandum.


text:
    [811 NE2d 7, 778 NYS2d 745]
    The People of the State of New York, Respondent, v Eugene Hicks, Appellant.
    Decided April 1, 2004
    APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, New York City (Jay L. Weiner of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (James A. Dolan and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of criminal possession of a controlled substance in the third degree for the possession of a narcotic drug with intent to sell (Penal Law § 220.16 [1]). Following a buy-and-bust operation, police arrested defendant and found 14 glassine envelopes of heroin on his person. We conclude that the trial court did not abuse its discretion in allowing the arresting officer to testify that the packaging of the drugs recovered from defendant was inconsistent with personal use and consistent with the packaging that the officer had encountered in previous drug sale arrests.

The arresting officer testified that he had been a police officer for 10 years, that he was serving his third year as an investigator for the narcotics division and that, as such, received continuing special training in “identifying narcotics, packaging, and characteristics for sale,” and was properly qualified as a narcotics expert (see Matott v Ward, 48 NY2d 455, 459 [1979]; see also Prince, Richardson on Evidence § 7-304 [Farrell 11th ed]).

The officer’s testimony as to the quantity and packaging of the narcotics found on defendant was helpful to the jury in understanding the evidence and reaching a verdict (see People v Lee, 96 NY2d 157, 162 [2001]). Here, the defense was that defendant possessed the 14 glassine envelopes of heroin for his personal use. Based on day-to-day experience, common observation and knowledge, the average juror may not be aware of the quantity and packaging of heroin carried by someone who sells drugs, as opposed to someone who merely uses them (see People v Brown, 97 NY2d 500, 505 [2002]). Since the expert testimony was beyond the ken of the average juror, it matters not whether the testimony related to the ultimate issue in the case (see People v Cronin, 60 NY2d 430, 432-433 [1983]).

Defendant’s remaining contention that the court failed to give an adequate expert witness instruction is without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of ATM One, LLC, Appellant, v Ana Landaverde, Respondent.
    Submitted March 13, 2004;
    decided April 1, 2004
   Motion for permission to allow law student to orally argue the appeal herein denied.


text:
    In the Matter of Richard Crane, Appellant, v State of New York, Executive Department, Crime Victims Board, Respondent.
    Submitted March 8, 2004;
    decided April 1, 2004
   Motion for clarification of this Court’s January 12, 2004 order denied [see 1 NY3d 593].


text:
    Amy N. Holterman, Respondent, v Robert K. Holterman, Appellant.
    Submitted March 29, 2004;
    decided April 1, 2004
   Motion hy American Academy of Matrimonial Lawyers, New York Chapter for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.