author: Chief Judge Kaye.

text:
    [881 NE2d 172, 851 NYS2d 76]
    In the Matter of Riverkeeper, Inc., Respondent, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Richard Feuerman et al., Respondents, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Croton Watershed Clean Water Coalition, Inc., et al., Respondents, v Planning Board of Town of Southeast et al., Appellants. In the Matter of Cherie Ingraham et al., Respondents, v Planning Board of Town of Southeast et al., Appellants.
    Argued October 18, 2007;
    decided November 19, 2007

      POINTS OF COUNSEL

      Willis H. Stephens, Jr., Town Attorney, Brewster, for Planning Board of the Town of Southeast, appellant in the first three above-entitled proceedings.
    I. The Appellate Division erred when it found that the Planning Board of the Town of Southeast’s initial final environmental impact statement and supplemental environmental impact statement were inadequate. (Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608.) II. The court below erred by determining that the passage of time warrants preparation of a supplemental environmental impact statement. (Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, Inc., 435 US 519; Matter of Village of Pelham v City of Mount Vernon Indus. Dev. Agency, 302 AD2d 399, 100 NY2d 505; Matter of Town of Pleasant Val. v Town of Poughkeepsie Planning Bd., 289 AD2d 583, 98 NY2d 602; Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40, 97 NY2d 613; Matter of Town of Charleston v Montgomery, Otsego, Schoharie Solid Waste Mgt. Auth., 235 AD2d 608, 89 NY2d 812; Matter of Hollenbeck v Onondaga County Resource Recovery Agency, 225 AD2d 1036; Matter of Morse v Town of Gardiner Planning Bd., 164 AD2d 336; Matter of Orange Envt. v Jorling, 161 AD2d 1069.) III. The Appellate Division erred in determining that a lead agency must await determinations from other agencies before deciding whether a supplemental environmental impact statement is necessary. (Matter of Steele v Town of Salem Planning Bd., 200 AD2d 870, 83 NY2d 757.) IV The Planning Board of the Town of Southeast’s decision not to require a supplemental environmental impact statement was supported by substantial evidence in the record.

      Keane & Beane, P.C., White Plains (Richard L. O’Rourke, Judson K. Siebert and Edward J. Phillips of counsel), and Chadbourne & Parke LLP, New York City (Alan I. Raylesberg and
      Thomas E. Butler of counsel), for Glickenhaus Brewster Development, Inc., appellant in the first three above-entitled proceedings.
    I. The Appellate Division did not apply the correct standard of review to the determination made by the Planning Board of the Town of Southeast. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Merson v McNally, 90 NY2d 742; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382; Akpan v Koch, 75 NY2d 561; Matter of Neville v Koch, 79 NY2d 416; Matter of Ifrah v Utschig, 98 NY2d 304; Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190; Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683.) II. The Appellate Division improperly second-guessed a reasonable, well-supported, State Environmental Quality Review Act determination made by the Planning Board of the Town of Southeast. (Matter of Seven Acre Wood St. Assoc. v Town of Bedford, 302 AD2d 532.) III. The Appellate Division incorrectly concluded that the Planning Board of the Town of Southeast improperly deferred its review of environmental issues to other agencies. (Matter of Coca-Cola Bottling Co. of N.Y.v Board of Estimate of City of N.Y., 72 NY2d 674; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608.) IV The Appellate Division otherwise misconstrued the State Environmental Quality Review Act by imposing requirements not found in the statute. (Matter of Steele v Town of Salem Planning Bd., 200 AD2d 870, 83 NY2d 757.)

      James L. Simpson, White Plains, for Riverkeeper, Inc., respondent in the first above-entitled proceeding.
    I. The Appellate Division applied the appropriate standard of review. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Town of Red Hook v Dutchess County Resource Recovery Agency, 146 Misc 2d 723.) II. The Appellate Division properly held that the Planning Board of the Town of Southeast utterly failed to take the requisite “hard look” or provide a “reasoned elaboration” for its determination. (Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Merson v McNally, 90 NY2d 742; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342; Kana

      ley v Brennan, 119 Misc 2d 1003, 120 AD2d 974; Matter of Farrington Close Condominium Bd. of Mgrs. v Incorporated Vil. of Southampton, 205 AD2d 623; Matter of Iorio v Town of Mount Pleasant, 131 Misc 2d 395; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674; Matter of Kahn v Pasnik, 90 NY2d 569.) III. The Appellate Division appropriately found that significant changes in circumstances and project design require preparation of a supplemental environmental impact statement. (Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Bryn Mawr Props. v Fries, 160 AD2d 1004; Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Farrington Close Condominium Bd. of Mgrs. v Incorporated Vil. of Southampton, 205 AD2d 623.) IV The State Environmental Quality Review Act requires action and assessment, not mere disclosure of environmental impacts. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Merson v McNally, 90 NY2d 742.) V There is heightened importance of a supplemental environmental impact statement where unfiltered public drinking water sources are at stake. (Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Matter of Bryn Mawr Props. v Fries, 160 AD2d 1004.) VI. Appellants’ arguments attempt to circumvent a well-reasoned judicial opinion. (Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Town of Red Hook v Dutchess County Resource Recovery Agency, 146 Misc 2d 723; Matter of Carpenter v City of Ithaca Planning Bd., 190 AD2d 934; Matter of Merson v McNally, 90 NY2d 742; Glen HeadGlenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484.)

      McMillan, Constabile, Maker & Perone, LLP, Larchmont (William Maker, Jr., of counsel), for Richard Feuerman and others, respondents in the second above-entitled proceeding.
    I. The Planning Board of the Town of Southeast made virtually no effort to review the areas of environmental concern identified by Justice Nicolai. (Matter of Hunter, 4 NY3d 260.) II. The facts bear out the correctness of the Appellate Division’s decision and order. (Matter of Kahn v Pasnik, 90 NY2d 569; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390.) III. The post-2003 reviews by other agencies do not absolve the Planning Board of the Town of Southeast for its improper State Environmental Quality Review Act review. (Matter of Merson v McNally, 90 NY2d 742; Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337; Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341; Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508.) IV The environmental review of the Meadows at Deans Corners was not as thorough as the respondents-appellants would have this Court believe. V Riverkeeper II does not require a supplemental environmental impact statement whenever a State Environmental Quality Review Act process has become lengthy or changes have occurred. VI. Faulting the Planning Board of the Town of Southeast for not seeking comments from other involved agencies before deciding not to require a supplemental environmental impact statement is a logical extrapolation of the State Environmental Quality Review Act regulations. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Spitzer v Farrell, 100 NY2d 186; Matter of Kahn v Pasnik, 90 NY2d 569.) VII. Ordering the preparation of a supplemental environmental impact statement was the proper remedy. (Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674; Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508; Matter of Kahn v Pasnik, 90 NY2d 569; Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41.)

      James Bacon, New Paltz, for Croton Watershed Clean Water Coalition, Inc. and others, respondents in the third above-entitled proceeding.
    I. The appellate court applied the correct standard of review. (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 96 AD2d 986; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Natural Resources Defense Council, Inc. v Muszynski, 268 F3d 91; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342.) II. The Planning Board of the Town of Southeast failed to take a “hard look” at the project’s potentially significant adverse environmental impacts. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674; Mobil Oil Corp. v City of Syracuse Indus. Dev. Agency, 224 AD2d 15, 89 NY2d 811; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382; Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Coalition Against Lincoln W., Inc. v Weinshall, 21 AD3d 215; Mat

      ter of Doremus v Town of Oyster Bay, 274 AD2d 390; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Fleck v Town of Colden, 16 AD3d 1052; Matter of Yellow Lantern Kampground v Town of Cortlandville, 279 AD2d 6.) III. The appellate court ruling is consistent with the State Environmental Quality Review Act and existing case law. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Matter of Price v Common Council of City of Buffalo, 3 Misc 3d 625; Town of Red Hook v Dutchess County Resource Recovery Agency, 146 Misc 2d 723; Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40; Sun Co. v City of Syracuse Indus. Dev. Agency, 209 AD2d 34; Matter of Schodack Concerned Citizens v Town Bd. of Town of Schodack, 148 AD2d 130; Matter of Town of Henrietta v Department of Envtl. Conservation of State of N.Y., 76 AD2d 215.)

      Andrew M. Cuomo, Attorney General, Albany (Barbara D. Underwood, Benjamin N. Gutman, Katherine Kennedy and Philip M. Bein of counsel), for State of New York, amicus curiae in the first three above-entitled proceedings.
    The Town of Southeast Planning Board should have required a supplemental environmental impact statement to address the development project’s effects on the Muscoot Reservoir’s water quality. (Glen HeadGlenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40; Matter of Committee for Environmentally Sound Dev. v City of New York, 190 Misc 2d 359; Matter of Kahn v Pasnik, 90 NY2d 569; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Matter of Bryn Mawr Props. v Fries, 160 AD2d 1004; Dubois v United States Dept. of Agric., 102 F3d 1273; Sierra Club v Flowers, 423 F Supp 2d 1273; Natural Resources Defense Council, Inc. v United States Army Corps of Engrs., 399 F Supp 2d 386; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342.)

      Michael E. Kenneally, Jr., Albany, and Riele J. Morgiewicz for Association of Towns of State of New York and another, amici curiae in the first three above-entitled proceedings.
    I. Judicial deference to a reasonably elaborated State Environmental Quality Review Act determination, made in accordance with lawful procedures, enables local governments to move forward with essential land use proceedings. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Akpan v Koch, 75 NY2d 561; Matter of Cowan v Kern, 41 NY2d 591.) II. Strict compliance with State Environmental Quality Review Act (SEQRA) procedural provisions requires that judicial review of procedures be limited to those procedures contained in the SEQRA regulations. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400.)

      Shamberg Marwell Davis & Hollis, P.C., Mount Kisco (John S. Marwell, Diana Bunin and Carrie E. Hilpert of counsel), for Building and Realty Institute of Westchester & the Mid-Hudson Region, amicus curiae in the first three above-entitled proceedings.
    I. This Court should reverse the Appellate Division’s decision and order, which hinders development of all housing, including affordable housing, further erodes private property rights, and will result in an array of litigation, rather than the array of housing, as required by this Court. (Akpan v Koch, 75 NY2d 561; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Halperin v City of New Rochelle, 24 AD3d 768; Berenson v Town of New Castle, 38 NY2d 102; Blitz v Town of New Castle, 94 AD2d 92; Continental Bldg. Co. v Town of N. Salem, 211 AD2d 88; Land Master Montg I, LLC v Town of Montgomery, 13 Misc 3d 870; Town of Orangetown v Magee, 88 NY2d 41.) II. This Court should reverse the Appellate Division’s decision and order, which imposes additional nonexistent State Environmental Quality Review Act requirements, as proscribed judicial legislation. (Clark v Cuomo, 66 NY2d 185; Matter of Anonymous, 40 NY2d 96; Bright Homes v Wright, 8 NY2d 157; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Lawrence Constr. Corp. v State of New York, 293 NY 634; Kucher v DaimlerChrysler Corp., 9 Misc 3d 45.)

      Sive, Paget & Riesel, PC, New York City (Mark A. Chertok and Elizabeth Knauer of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP (Richard G. Leland and Susanna J. Gray of counsel) for Real Estate Board of New York, Inc., amicus curiae in the first three above-entitled proceedings.
    I. A supplemental environmental impact statement is not required every time a project or circumstances change. (Matter of Schodack Concerned Citizens v Town Bd. of Town of Schodack, 148 AD2d 130; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, 292 AD2d 617; Matter of C/S 12th Ave.

      LLC v City of New York, 32 AD3d 1; New York Pub. Interest Research Group v Williams, 127 AD2d 512; Matter of Howard v Wyman, 28 NY2d 434; Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508; Incorporated Vil. of Atl. Beach v Gavalas, 81 NY2d 322; Matter of Taxpayers Opposed to Floodmart v City of Hornell Indus. Dev. Agency, 212 AD2d 958; Matter of Halperin v City of New Rochelle, 24 AD3d 768.) II. A lead agency is not required to wait for the completion of permit processes undertaken by involved agencies before making State Environmental Quality Review Act determinations. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400.) III. Requiring a lead agency to solicit comments from involved agencies is inconsistent with State Environmental Quality Review Act procedures and would cause administrative project delays. (Matter of Gordon v Rush, 100 NY2d 236.)

      Willis H. Stephens, Jr., Town Attorney, Brewster, for Planning Board of the Town of Southeast, appellant in the fourth above-entitled proceeding.
    This Court should reverse the decision and order upon a reversal in Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast (32 AD3d 431 [2006]).

      Keane & Beane, P.C., White Plains (Richard L. O’Rourke, Judson K. Siebert and Edward J. Phillips of counsel), and Chadbourne & Parke LLP, New York City (Alan I. Raylesberg and Thomas E. Butler of counsel), for Glickenhaus Brewster Development, Inc., appellant in the fourth above-entitled proceeding.
    I. This Court should reverse the decision and order upon a reversal in Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast (32 AD3d 431 [2006]). II. Petitioners-respondents’ claims in their CPLR article 78 petition were properly denied. (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668; Matter of Brighton Residents Against Violence to Children v MW Props., 304 AD2d 53, 100 NY2d 514; Matter of Rediker v Zoning Bd. of Appeals of Town of Philipstown, 280 AD2d 548, 96 NY2d 716; Matter of Kemp v Zoning Bd. of Appeals of Vil. of Wappingers Falls, 216 AD2d 466; Matter of M & M Partnership v Sweenor, 210 AD2d 575; Thomas v Brookins, 175 AD2d 619; Kessler v Town of Shelter Is. Planning Bd., 40 AD2d 1005; Matter of New York Botanical Garden v Board of Stds. & Appeals of City of N.Y., 91 NY2d 413; Matter of North Country Citizens for Responsible Growth, Inc. v Town of Potsdam Planning Bd., 39 AD3d 1098; Matter of Hauser v Town of Webb, 34 AD3d 1353.) III. If supplemental environmental review is required for the Meadows at Deans Corners, it should proceed on a postapproval basis. (Golden v Metropolitan Transp. Auth., 126 AD2d 128; Chatham Green v Bloomberg, 1 Misc 3d 434; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400.)

      McMillan, Constabile, Maker & Perone, LLP, Larchmont (William Maker, Jr., and Gary Kyme of counsel), for respondents in the fourth above-entitled proceeding.
    I. Matter of Ingraham v Planning Bd. of Town of Southeast (36 AD3d 911 [2007]) is the legitimate offspring of Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast (32 AD3d 431 [2006]). (Matter of TriCounty Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337; Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341.) II. Respondents-appellants have no one but themselves to blame for what has occurred. (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 32 AD3d 431.) III. The Planning Board of the Town of Southeast improperly waived the mandated public hearing. (Matter of City of Saratoga Springs v Zoning Bd. of Appeals of Town of Wilton, 279 AD2d 756.) IV As an administrative body, the Planning Board of the Town of Southeast could not improvise; it had to apply the subdivision regulations as written. (Marx v Zoning Bd. of Appeals of Vil. of Mill Neck, 137 AD2d 333; Purchase Envtl. Protective Assn. v Strati, 163 AD2d 596.) V The Planning Board of the Town of Southeast cannot create “boulevards” to bypass the subdivision regulations. (Matter of North White Auto v Clem, 229 AD2d 393; Matter of Tallini v Rose, 208 AD2d 546; Matter of New York SMSA Ltd. Partnership v Town of Islip Planning Bd., 300 AD2d 307; Buechel v Bain, 97 NY2d 295.)
   OPINION OF THE COURT

Chief Judge Kaye.

At the heart of the two appeals before us is the impact of environmental and regulatory change on a residential development that has been in the planning and review stages for nearly 20 years. The particular question presented is whether the Planning Board of the Town of Southeast, lead agency under the State Environmental Quality Review Act (SEQRA), both took the requisite hard look at project and regulatory changes that arose after the filing of a SEQRA findings statement, and made a reasoned elaboration that a second supplemental environmental impact statement (SEIS) was not necessary to address those changes. We conclude that the Board did both, and that its determination was not arbitrary or capricious.

Background

In 1988 Glickenhaus Brewster Development, Inc. submitted an application to the Board seeking subdivision approval for a residential development called the Meadows at Deans Corners. The site spans approximately 309 acres and, in its final form, proposes a cluster development of 104 homes.

After declaring itself lead agency, the Board issued a positive declaration, which determined that the project would likely have a significant impact on the environment, and required the preparation of a draft environmental impact statement (DEIS). Between 1988 and 1991, Glickenhaus submitted a DEIS, final EIS (FEIS), draft SEIS (DSEIS) and final SEIS (FSEIS), which were reviewed by the Board and subject to public comment. On February 25, 1991, the Board issued a SEQRA findings statement determining that SEQRA’s requirements had been met and that the project “minimized or avoid[ed] adverse environmental effects to the maximum extent practicable.”

These early processes unearthed concern that the development would degrade the quality of the Croton Watershed because Holly Stream, which runs through the site, is a tributary of the Muscoot Reservoir. Additionally, the Town of Southeast lies within the Croton Watershed, which supplies New York City with ten percent of its drinking water. The New York City Department of Environmental Protection (NYCDEP) opposed the initial sewage treatment plan and Glickenhaus substituted a more advanced plan with a subsurface disposal system. The Board’s findings acknowledged that treated effluent from the development would flow into Holly Stream and be discharged into the Muscoot Reservoir. The findings also documented Glickenhaus’s obligation to develop the advanced treatment plant in conjunction with NYCDEP. The Board granted preliminary subdivision approval on August 10, 1998, and conditional final approval on June 10, 2002.

Petitioners challenged the conditional final approval in a CPLR article 78 proceeding. On February 3, 2003, Supreme Court Justice Francis A. Nicolai annulled the conditional final approval because of the Board’s failure to take a hard look at certain areas of environmental concern. Judge Nicolai remitted the matter to the Board to determine whether a second SEIS was necessary in light of subsequent developments, namely the United States Army Corps of Engineers’ (USAGE) expansion of the delineated wetlands acreage on the site; the tightened phosphorous regulations for the Muscoot Reservoir; Governor Pataki’s designation of the Croton Watershed as a “Critical Resource Water”; the flagging of additional watercourses by NYCDEP not previously shown on the site plan; the realignment of various roadways; the increase of stormwater basins from 9 to 20; the additional traffic development near the site; and the flooding caused by Hurricane Floyd.

After remittal, the chairman of the Board reexamined Meadows’ file, which had been supplemented with the local wetlands permit application before the Town of Southeast Conservation Commission and the Town Board; the application for a State Pollutant Discharge Elimination System (SPDES) permit before the New York State Department of Environmental Conservation (NYSDEC); the application for a wetlands activities permit before USAGE; and the application for approval of the Stormwater Pollution Prevention Plan (SPPP) before NYCDEP The Board then reviewed two reports from the Town Conservation Commission’s independent wetlands consultant, Stephen Coleman, and another report from Glickenhaus’s engineering consultant. Finally, the Board’s own environmental and planning consultant examined the file and circulated a draft resolution for Board review. On April 14, 2003, the Board adopted a resolution that a second SEIS was not necessary because “any modifications to the project and any changes [to the regulations] . . . [were] not significant and will not result in any significant adverse environmental impacts . . . .” Conditional final approval was granted, for a second time, on February 23, 2004.

In May 2003 petitioners commenced Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast—the first of the two appeals before us—challenging the Board’s determination that a second SEIS was not required. In a comprehensive opinion dismissing the petitions, Judge Nicolai concluded that the Board had taken the requisite hard look at the areas of concern and made a reasoned elaboration of its decision not to require a second SEIS. The Appellate Division reversed. Without reflecting the proper standard of review, a divided Appellate Division determined that the Board “could not have met its obligation under SEQRA without requiring a SEIS to analyze the current subdivision plat in light of the change in circumstances since 1991” (32 AD3d 431, 435 [2d Dept 2006]).

The second appeal before us—Matter of Ingraham v Planning Bd. of Town of Southeast—commenced in March 2004, challenged the February 2004 conditional final approval on the ground that it violated various subdivision regulations of the Code of the Town of Southeast. Petitioners alleged that the final plat improperly utilized dead-end streets, the application was not “complete” because it did not include all of the required permits and the Board improperly waived a public hearing for final approval. Judge Nicolai found no violation of the Town’s subdivision regulations. Although agreeing that no violation of the subdivision regulations had been shown, the Appellate Division annulled the February 2004 conditional final approval based on its August 2006 decision that a second SEIS was required (36 AD3d 911, 912 [2d Dept 2007]). We now reverse the Appellate Division orders and dismiss the petitions.

Analysis

A lead agency’s determination whether to require a SEIS—or in this case a second SEIS—is discretionary. The relevant SE-QRA regulations provide that:

“[t]he lead agency may require a supplemental EIS, limited to the specific significant, adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project” (6 NYCRR 617.9 [a] [7] [i] [emphasis added]).

The decision to prepare a SEIS as a result of newly discovered information “must be based upon ... (a) the importance and relevance of the information; and (b) the present state of the information in the EIS” (6 NYCRR 617.9 [a] [7] [ii]). In making this fact-intensive determination, the lead agency has the discretion to weigh and evaluate the credibility of the reports and comments submitted to it and must assess environmental concerns in conjunction with other economic and social planning goals (see 6 NYCRR 617.1 [d]). The discretion to require a SEIS is distinguished from regulations regarding the preparation of a DEIS or FEIS, which a lead agency must itself prepare or require the applicant to prepare (see 6 NYCRR 617.9 [a] [1], [5]).

Judicial review of an agency determination under SEQRA is limited to “whether the agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986] [citations omitted]). This standard of review applies to a lead agency’s determination regarding the necessity for a SEIS. It is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence. The lead agency, after all, has the responsibility to comb through reports, analyses and other documents before making a determination; it is not for a reviewing court to duplicate these efforts. As we have repeatedly stated, “[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to ‘weigh the desirability of any action or [to] choose among alternatives’ ” (Akpan v Koch, 75 NY2d 561, 570 [1990], quoting Jackson, 67 NY2d at 416; see also Matter of Merson v McNally, 90 NY2d 742, 752 [1997]).

Most of the changes to the proposed plan and the regulations since the Board’s issuance of the 1991 SEQRA findings statement concerned the maintenance of the water quality of the Muscoot Reservoir, which lies just south of the Town of Southeast. The Board’s requirement of a technologically advanced sewage treatment facility in its 1991 findings statement actually anticipated the regulatory changes that occurred years later. In 1998, the Army Corps of Engineers determined that the actual wetlands acreage impacted by the project was 79.59 acres, instead of the 71.8 acres documented in the findings statement. Then, in 2000, NYSDEC and NYCDEP issued Phase II water quality standards to limit the total maximum daily load (TMDL) of phosphorous into the New York City Water Supply Watershed, which includes the Muscoot Reservoir. The Phase II report indicated that even after applying upstream loading reductions, the designated phosphorous load would be exceeded in the Muscoot Reservoir; therefore, nonpoint source programs would be necessary to achieve the desired reductions. Finally, in 2001, Governor Pataki designated the East of Hudson portion of the New York City Watershed as a Critical Resource Water, thus subjecting the Meadows site to the Army Corps of Engineers’ Nationwide Permit Program.

Beginning in 2000, Glickenhaus corresponded with NYCDEP to formulate a suitable Stormwater Pollution Prevention Plan that would comply with NYCDEP’s regulations. The Town’s wetlands consultant concluded that the final system proposed by Glickenhaus, including an additional 11 water quality basins, is an advanced system that is designed to comply with the pertinent regulations. The wetlands consultant also concluded that the sewage treatment plant and its treatment system “will eliminate a significant source of non-point pollution sources.” Accordingly, the Board determined in its April 2003 resolution that the modifications to the SPPP would result in greater protection of water quality than originally determined in the DEIS, FEIS and initial SEIS, and that neither the modifications to the project nor the new regulations presented a significant adverse impact necessitating a second SEIS.

Other changes made to the project also sought to minimize wetlands impact and comply with existing regulations. Although the USAGE determined the amount of wetlands on the Meadows site was approximately 7.79 acres greater than that indicated in the 1991 SEQRA findings statement, the reports concluded that there was a decrease in the wetlands acreage actually impacted by the project. Moreover, the road realignments and culvert system mitigated wetlands impact and were designed to accommodate a 100-year flood event. These changes thereby supported the Board’s conclusion that there were no new significant adverse impacts imposed by the increased wetlands acreage, road realignments and flooding caused by Hurricane Floyd.

Lastly, the Board reasonably concluded that the additional developments surrounding the Meadows would not pose significant adverse traffic impacts based on a 1998 traffic impact study with projected results to 2003.

We thus conclude that the Board took a hard look at the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion that a second SEIS was not necessary. The Board relied on the material already in its file, including the DEIS, FEIS and initial SEIS, supplemental reports by the Town’s wetlands consultant and the developer’s engineering consultant, as well as its own environmental and planning consultant. The Board’s determination that the changes did not present significant adverse environmental impacts and did not require the preparation of a second SEIS was not arbitrary or capricious and is supported by the evidence.

We also reject petitioners’ assertion that the Board improperly deferred its SEQRA responsibilities by making the SEIS determination prior to the completion of various permitting processes. A lead agency improperly defers its duties when it abdicates its SEQRA responsibilities to another agency or insulates itself from environmental decisionmaking (see Akpan, 75 NY2d at 575; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674, 682-683 [1988]). While a lead agency is encouraged to consider the opinions of experts and other agencies, it must exercise its own judgment in determining whether a particular circumstance adversely impacts the environment. Though the SEQRA process and individual agency permitting processes are intertwined, they are two distinct avenues of environmental review. Provided that a lead agency sufficiently considers the environmental concerns addressed by particular permits, the lead agency need not await another agency’s permitting decision before exercising its independent judgment on that issue.*

Here, the Board’s file included the permit applications for wetlands activities, the State Pollutant Discharge Elimination System and the Stormwater Pollution Prevention Plan. These are the very areas of environmental concern upon which the Board allegedly deferred its independent judgment. In addition, the Board reviewed a report by the Town’s wetlands consultant that concluded (after reviewing the developer’s wetlands permit applications) that the Meadows plan complied with NYCDEP regulations. The Board’s April 2003 resolution indicates a familiarity with the required permits and its mere acknowledgment that the developer would be required to seek approval from the USAGE pursuant to the Clean Water Act for wetlands disturbance does not rise to the level of improper deferral. On these facts, the Board, having access to the relevant permit applications and making independent decisions as documented in the April 2003 resolution, was not required to wait for agency permitting decisions before determining whether to require a second SEIS.

Finally, the Board did not have an affirmative obligation to notify or solicit comments from other agencies when determining that a second SEIS was not required (see 6 NYCRR 617.9 [a] [7] [iii]). True, SEQRA encourages the open exchange of information between a lead agency and other involved agencies (see 6 NYCRR 617.3 [d]-[e]; 617.14 [c])—and for good reason. A lead agency often is not expert in a given area of environmental concern and can benefit from the responses of specialized agencies. However, a lead agency’s discretion to solicit comments at this late stage in the SEQRA process must be balanced against SEQRA’s mandate that the regulations be implemented “with minimum procedural and administrative delay . . . [and] in the interest of prompt review” (6 NYCRR 617.3 [h]).

While a lead agency’s failure to solicit comments before determining that a SEIS is not required may at times evidence the lack of a “hard look,” that is not the case here. The Board’s involvement in the Meadows project spanned almost 15 years at the time of the SEIS determination. The Board opened public comment periods when it reviewed the DEIS, FEIS and initial SEIS. In addition, the Board took into account expert reports finding that the changes in the project and the regulations posed no significant adverse environmental impact. That the Board did not solicit comments for a second SEIS does not mean that it failed to take a hard look. With an extensive understanding of the Meadows project, the Board properly applied its own discretion.

Finally, in light of our decision in Matter of Riverkeeper, we hold that the Appellate Division’s decision in Matter of Ingraham should be reversed. We agree with the determination of Supreme Court and the Appellate Division that the Town Code’s subdivision regulations were not violated when the Board granted conditional final approval in February 2004. Petitioners’ remaining arguments have been rendered academic by this opinion.

Accordingly, the orders of the Appellate Division should be reversed, with costs, and the petitions dismissed.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

In Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast: Order reversed, etc.

In Matter of Ingraham v Planning Bd. of Town of Southeast: Order reversed, with costs, and petition dismissed.

      . The Attorney General directs our attention particularly to a Ninth Circuit opinion issued last month determining that the EPA violated the Clean Water Act by failing to abide by the regulations for issuing a National Pollutant Discharge Elimination System (NPDES) permit (Friends of Pinto Cr. v United States Envtl. Protection Agency, 504 F3d 1007 [9th Cir 2007]). Similar to this appeal, the EPA issued TMDLs for a pollutant after public comment on the FEIS and subsequently revised the NPDES permit (504 F3d 1010). The court determined that the supplemental environmental assessment issued by the EPA should have addressed the revised permit and that the EPA Appeals Board should have considered petitioners’ argument that the EPA failed to take a “hard look” (504 F3d 1017). In the case before us, however, the Southeast Planning Board—unlike the EPA— considered all of the regulatory and planning changes when it determined that a second SEIS was not required.

      . Petitioners’ reliance on Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd. (253 AD2d 342 [4th Dept 1999]) is misplaced. The Penfield Planning Board insulated itself from the hazardous waste remediation plan and failed to exercise its judgment on the issue (id. at 344, 349-350). Here, as shown, the Board considered the environmental issues requiring permits and made an independent judgment that they would not create significant environmental impact.


source: Caselaw Access Project

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

license: Public Domain

text:
    [878 NE2d 1004, 848 NYS2d 588]
    Property Clerk of the Police Department of the City of New York et al., Respondents, v Merv Harris et al., Respondents, and Delores Newton Harris, Appellant.
    Argued October 11, 2007;
    decided November 19, 2007

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Steven B. Wasserman and Summer C. Smith of counsel), for appellant.
    The innocent co-owner of a vehicle in forfeiture proceedings has a due process right to contest the need for its impoundment, and its release to the innocent co-owner would not invariably impair or destroy a forfeiture action against the offending owner’s share. (County of Nassau v Canavan, 1 NY3d 134; Krimstock v Kelly, 306 F3d 40; Mathews v Eldridge, 424 US 319; Morgenthau v Citisource, Inc., 68 NY2d 211; Property Clerk of N.Y. City Police Dept. v Molomo, 179 AD2d 210, 81 NY2d 936; Property Clerk, N.Y. City Police Dept. v Small, 153 Misc 2d 673; Pacheco v Serendensky, 393 F3d 348; Republic Nat. Bank of Miami v United States, 506 US 80; United States v James Daniel Good Real Property, 510 US 43.)

      Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner, Leonard Koerner and Gabriel Taussig of counsel), for respondents.
    The Appellate Division correctly held that once petitioners demonstrated, in accordance with both Second Circuit Court of Appeals’ and this Court’s precedents, their entitlement to retain the vehicle pending forfeiture as against the co-owner charged with using the vehicle illegally, they cannot be required to release the vehicle based on the purported innocence of the other co-owner. Such a requirement would be in direct contravention of the plain language of the Administrative Code of the City of New York, would make forfeiture virtually impossible and would dangerously allow an instrumentality of crime to continue to be used as such. (Matter of Property Clerk of N.Y. City Police Dept. v Ferris, 77 NY2d 428; Pacheco v Serendensky, 393 F3d 348; Krimstock v Kelly, 306 F3d 40; County of Nassau v Canavan, 1 NY3d 134.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal we are asked to determine whether the Property Clerk of the Police Department of the City of New York, in order to establish the right to impound a vehicle during the pendency of a civil forfeiture proceeding, is required to prove, at a postseizure retention hearing, that the co-owner of a seized vehicle is not an “innocent owner.” We conclude that the City does not bear that burden, but building upon the holdings of County of Nassau v Canavan (1 NY3d 134 [2003]) and Krimstock v Kelly (306 F3d 40 [2d Cir 2002]) we also conclude that due process requires that an innocent co-owner be given an opportunity to demonstrate that his or her present possessory interest in a seized vehicle outweighs the City’s interest in continuing impoundment.

I.

Along with her husband, Merv Harris, respondent, Delores Newton Harris, is the co-owner of a 2002 Mitsubishi Montero. The Harrises acquired the Montero in March 2002 and registered it in Virginia. Since that time, the couple has made monthly payments of $600 drawn from a joint checking account to discharge their remaining debt on the vehicle. At the time these proceedings were initiated in December 2004, the Montero had a fair market value of $16,000.

On the evening of October 20, 2004, an individual working in concert with undercover New York City Police Department (NYPD) officers allegedly called Mr. Harris and asked him to deliver cocaine to 94th Street and Columbus Avenue in Manhattan. A short time later, Mr. Harris arrived in the Montero. The man approached the Montero with $40 in prerecorded buy money, gave that money to Mr. Harris, and returned to the undercover officer with a quantity of cocaine. Mr. Harris drove off but was stopped by other NYPD officers who recovered four bags of cocaine from his pants pocket and the $40 in buy money. The police arrested him, charged him with criminal sale and possession of a controlled substance in the third degree, seized the Montero and impounded it.*

As permitted under section 14-140 (b) of the Administrative Code of the City of New York, the NYPD’s Property Clerk has retained the seized Montero as “property . . . suspected of having been used as a means of committing crime or employed in aid or furtherance [thereof].” The Property Clerk has also instituted a civil forfeiture proceeding seeking to confiscate the Montero in order to sell it at an auction (see 38 RCNY 12-36). As required under Krimstock, the City informed Mr. Harris of its intent to impound the Montero throughout the forfeiture proceeding (see 306 F3d at 68). Mr. Harris then made a timely demand for a “Krimstock” hearing, where it is the City’s burden to establish its right to continued impoundment by a preponderance of the evidence (see Krimstock v Kelly, 2005 US Dist LEXIS 43845, *4).* **

On December 21, 2004, both Harrises appeared at the Krimstock hearing before an administrative law judge of the City’s Office of Administrative Trials and Hearings (OATH). In addition to evidence regarding the alleged October 20 cocaine transaction, the City presented evidence that, over a span of 15 years, ending in 1997, Mr. Harris had been arrested 10 times and served two prison terms for drug-related offenses. After offering evidence regarding Mr. Harris’s culpability, the City called respondent to testify in anticipation of her husband’s claim that the vehicle should be returned to his wife because of her status as an innocent co-owner.

During her direct testimony, respondent stated that she married Mr. Harris in 2002 and was aware both that her husband was involved in at least one “drug case” and imprisoned for a drug offense prior to their marriage. She further testified that Mr. Harris had been arrested on “drug charges” during their marriage and that she posted bond in connection with those charges. Turning to her use of the Montero, she testified that she drove the vehicle “[ejvery so often,” usually on a “weekly basis.” She also offered testimony regarding the schedule of payments for the Montero and stated that she and her husband had made timely $600 monthly payments, drawn from their joint checking account.

Following the hearing, OATH ordered the Montero released to respondent even though it found that the City had established each of the three prongs of the Krimstock analysis against Mr. Harris. But that showing was immaterial, OATH held, because the City failed to discharge its additional “burden of proof that [respondent] was not an innocent owner.” According to OATH, release was appropriate because the City offered no evidence that she “knew or should have known that her husband was going to use the vehicle to sell narcotics.” The City then commenced a CPLR article 78 proceeding in Supreme Court seeking to annul OATH’s determination as “arbitrary, capricious, and contrary to law.”

Supreme Court upheld OATH’s ruling, finding that Krimstock “made it crystal clear that the [City] has to anticipate and test the merits of a potential innocent owner defense” at a retention hearing (7 Misc 3d 1032[A], 2005 NY Slip Op 50848[U], *4). Accordingly, Supreme Court denied the City’s article 78 petition, lifted a stay enjoining release of the vehicle to respondent and dismissed the proceeding. The Appellate Division reversed. It concluded that the City was entitled to retain the vehicle during the pendency of the forfeiture proceeding despite respondent’s claims of innocent ownership because it “made the requisite showing against Mr. Harris” (34 AD3d 215, 217 [1st Dept 2006]).

Further, the Appellate Division reasoned that if the City were required to release vehicles to innocent co-owners, its right to a share of future proceeds from an auction of seized vehicles “would, as a practical matter, be destroyed” (34 AD3d at 217). Thus, the court concluded that “[r]egardless of Ms. Harris’s innocence . . . the City is entitled to the protection of its potential right to forfeiture of Mr. Harris’s interest in the vehicle” through continued impoundment (id.). A contrary conclusion, the court stated, would make forfeiture “virtually impossible” and was unnecessary because innocent co-owners, like respondent, are entitled to a share of auction proceeds corresponding to their interest in the vehicle (id. at 218). We granted leave to appeal and now affirm, for different reasons.

II.

Relying upon our decision in Canavan and the Second Circuit’s decision in Krimstock, respondent argues that due process requires that OATH balance the hardship that would befall an innocent co-owner due to the loss of a present possessory interest in using an impounded vehicle against the City’s need to retain that vehicle. Petitioner contends, however, that the only process due innocent co-owners is that established in Canavan and Krimstock, namely a prompt retention hearing wherein the City must establish that “probable cause existed for the defendant’s initial warrantless arrest, that it is likely to succeed on the merits of the forfeiture action, and that retention is necessary to preserve the vehicle from destruction or sale during the pendency of the [forfeiture] proceeding” (Canavan, 1 NY3d at 144-145, citing Krimstock, 306 F3d at 67; see also Krimstock, 2005 US Dist LEXIS 43845, *4). Petitioner claims that once these findings are made against a “criminal co-owner,” innocent co-ownership “makes no difference.”

Because we agree with respondent that an innocent co-owner’s present possessory interest in an impounded vehicle may, in particular circumstances, be constitutionally significant, we conclude that such co-owners are also entitled to notice and the opportunity to be heard at a Krimstock hearing. But we hold that an innocent co-owner has the burden of proving that a present possessory interest outweighs the City’s need to impound the vehicle to (i) deter future criminal conduct, and to (ii) safeguard its right to future auction proceeds by preventing theft, sale, destruction or loss. Respondent did not carry that burden here.

The City has broad authority to retain property following seizure (see Administrative Code of City of NY § 14-140 [b]). It is entitled to retain “all property . . . suspected of having been used as a means of committing crime or employed in aid or furtherance of crime” (id.). Section 14-140 (b) “applies to all levels of crime, not just felonies, and to all types of crimes” (Krimstock, 306 F3d at 44). Although the City is required to institute a civil forfeiture proceeding within 25 days after a “claimant” makes a formal demand for return of seized property, that proceeding is commonly stayed until the conclusion of the underyling criminal action (see 38 RCNY 12-36 [a] [i]-[ii] [stay may be requested even if forfeiture proceeding was initiated “before . . . criminal proceedings”]). Thus, seized vehicles may be impounded for many months (see e.g. Krimstock, 306 F3d at 46 [citing examples in which cars remained impounded between 2V2 and 11 months during forfeiture proceeding]).

In Canavan, we struck down a county’s civil forfeiture statute on due process grounds because it “contain[ed] no limitation of forfeiture liability for innocent owners” (Canavan, 1 NY3d at 143, quoting Krimstock, 306 F3d at 57). In addition, we held that due process required that “defendants” be afforded a prompt postseizure retention hearing. Although our holding referred only to “defendants[’]” rights, it was predicated largely upon the potentially “significant” interest that innocent owners, and household members, have in impounded vehicles subject to lengthy impoundments (Canavan, 1 NY3d at 142-143 [“(T)he private interest affected by the deprivation of an automobile may be significant. When cars are owned by others or shared among household members . . . seizure may affect not only a culpable defendant, but also other innocent parties”]; see also id. at 144 [reasoning that “a hearing (is) required to ensure that . . . innocent owners are not deprived for months or years of cars ultimately proved not to be subject to forfeiture”]).

Our concern for the interest of innocent owners echoed that of the Second Circuit in Krimstock. In ruling that due process required a prompt postseizure retention hearing, the Second Circuit emphasized the “plight of innocent owners” and explained that the risk of erroneous deprivation is heightened because section 14-140 (b) permits the City to retain seized vehicles without giving such owners the opportunity to prove that they did not “permit” or “suffer” the criminal use of their vehicles (see Krimstock, 306 F3d at 48, 56-58, 63).

Canavan and Krimstock do not refer specifically to the due process rights of innocent co-owners, the issue with which we are confronted here. Instead, Canavan held that “defendants”— who presumably could be sole owners, co-owners, or merely in lawful possession of a seized vehicle—had a due process right to a hearing (1 NY3d at 144). And Krimstock refers to the due process right of “claimants” {e.g. 306 F3d at 68, 69) who are defined in the order currently governing Krimstock hearings as “either the person from whom the vehicle was seized ... or [its] owner” (2005 US Dist LEXIS 43845, at *7).

Nonetheless, both of these cases strongly suggest that innocent co-owners’ interests must be fully considered at a Krimstock hearing. For example, the Krimstock court defined the term “innocent owner” as “a person who has an ownership interest in property threatened with civil forfeiture but who neither participated in nor permitted or suffered the alleged illegal use of the property” (306 F3d at 48 n 9 [emphasis added]). Similarly, we noted the potentially significant interest at stake when impounded vehicles “are owned by others” (Canavan, 1 NY3d at 142). Despite these strong indications, however, to determine what process is due an innocent co-owner of an impounded vehicle, we must consider “(1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and (3) the government’s interest” (Canavan, 1 NY3d at 142, citing Mathews v Eldridge, 424 US 319, 335 [1976]). Each of these factors militates in favor of permitting innocent co-owners to contest impoundment.

III.

As to the first consideration, an innocent co-owner’s present possessory interest in a vehicle “may be significant” (see Canavan, 1 NY3d at 142). “[A]utomobiles are often an essential form of transportation and, in some cases, critical to life necessities, earning a livelihood and obtaining education” (id. at 143). This interest is not diminished by the fact that title to the vehicle is held jointly (see id. at 142-143 [noting that “(w)hen cars are owned by others or shared among household members . . . seizure may affect not only a culpable defendant, but also other innocent parties”]; Fuentes v Shevin, 407 US 67, 86 [1972] [due process protection extends to “any significant property interest” (emphasis added)]; Bennis v Michigan, 516 US 442, 473 [1996, Kennedy, J., dissenting] [concluding that “the automobile . . . is a practical necessity in modern life for so many people” and that “nothing supports the suggestion that the value of. . . co-ownership is so insignificant as to be beneath the law’s protection”]). Indeed, the Second Circuit recently held that a lienholder’s contingent possessory interest in a seized vehicle is “considerable” and that lienholders have a due process right to be heard in forfeiture proceedings brought under 38 RCNY 12-36 (Ford Motor Credit Co. v NYC Police Dept., 503 F3d 186, 194 [2d Cir 2007]). That conclusion only underscores the potential importance of the present possessory interest of innocent co-owners.

Contrary to the Appellate Division’s view, the prospect of a proportional payment of future forfeiture proceeds does not, in most cases, sufficiently protect innocent co-owners. That payment may not compensate for an innocent co-owner’s “interest in continued possession and use” of the vehicle during impoundment (Fuentes, 407 US at 86; see also Krimstock, 306 F3d at 64 [“(A)n owner cannot recover the lost use of a vehicle by prevailing in a forfeiture proceeding”]; cf. Ford Motor Credit, 503 F3d at 191 [rejecting City’s contention that lienholder’s only cognizable interest was that of “sale proceeds” because lienholders “ha(ve) a property interest in the present value of a seized vehicle”]).

As a second consideration, if an innocent co-owner is not permitted to contest impoundment, there is a substantial risk that erroneous deprivation of a present possessory interest in a vehicle will occur. A postseizure retention hearing is meant not only to determine whether probable cause exists for the initial seizure of the vehicle, but also “whether other measures, short of continued impoundment, would satisfy the legitimate interests of the City in protecting . . . vehicles from sale or destruction” (Krimstock, 306 F3d at 68). The answer to the second inquiry depends, in part, upon whether “less drastic measures than deprivation pendente lite are available and appropriate” (see id. at 44).

Innocent co-owners possess highly relevant evidence—unknown to the City—as to that inquiry. For example, impoundment may be inappropriate if an innocent co-owner relies upon continued use of the impounded vehicle to perform essential daily activities—such as earning a livelihood, obtaining an education, or receiving necessary medical care (cf. Canavan, 1 NY3d at 143; see also Krimstock, 306 F3d at 49 [“the City might succeed in showing . . . probable cause for seizing the vehicle . . . yet be unable to establish the probable validity of continued deprivation ... in the face of proof of innocent ownership”]). Innocent co-owners are entitled to present and OATH is required to consider such highly relevant evidence to “protect against an erroneous deprivation of a claimant’s possessory interest” (Krimstock, 306 F3d at 62; see also United States v James Daniel Good Real Property, 510 US 43, 55 [1993] [“No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case . . . and opportunity to meet it”]). This is especially true here, because, as we noted in Canavan, “greater procedural safeguards are of particular importance where . . . the [government has a direct pecuniary interest in the outcome of the proceeding” (1 NY3d at 143 [internal quotation marks omitted]).

Turning to the third consideration, we acknowledge that the government’s interests in preventing an impounded vehicle’s future use as the instrumentality of a crime and preventing against loss, theft, sale, or destruction are significant. But these interests will not always trump an innocent co-owner’s present possessory interest. Instead, OATH must balance both sets of interests to determine whether continued retention to prevent future criminality is “justifiable” and whether means other than retention such as posting a bond or a temporary restraining order prohibiting the sale or destruction of the vehicle would adequately protect the government’s interest in future forfeiture proceeds (see Canavan, 1 NY3d at 144).

In concluding that innocent co-owners have a due process right to contest impoundment of their vehicles, we reject the Appellate Division’s claim that recognizing such a right would “as a practical matter . . . destroy! ]” the City’s interest in seized vehicles and make forfeiture “virtually impossible” (34 AD3d at 217, 218). Due process requires a balancing of interests. Just as the City’s interests must be considered, so too must an innocent co-owner’s. Exclusion of either would threaten “[t]he purpose of an adversary hearing!, which] is to ensure the requisite neutrality that must inform all governmental decision-making” (James Daniel Good, 510 US at 55).

Thus, we hold that an innocent co-owner may be entitled to release of an impounded vehicle if such a co-owner can demonstrate by a preponderance of the evidence that he or she: (i) is a registered and/or titled co-owner; (ii) was not a “participant or accomplice” in the underlying offense and did not “permit! ]” or “suffer! ]” the vehicle to be “used as a means of committing crime or employed in aid or furtherance of crime” (see Administrative Code of City of NY § 14-140 [b], [e] [1]); and that (iii) continued deprivation would substantially interfere with his or her ability to obtain critical life necessities, such as earning a livelihood, obtaining an education, or receiving necessary medical care.

Although we acknowledge that application of this test is inherently fact-intensive, some general guideposts are useful. With respect to the second inquiry, regarding complicity, we have explained in a different context that “[s]ufferance . . . implies knowledge or the opportunity through reasonable diligence to acquire knowledge” (People ex rel. Price v Sheffield FarmsSlawson-Decker Co., 225 NY 25, 30 [1918, Cardozo, J.]). As regards continued deprivation, a showing of undue prejudice is required. Thus, OATH must determine whether an innocent co-owner has adequate access to other means of transportation in order to accurately determine whether continued impoundment will substantially interfere with critical life necessities.

Our decision here is a narrow one, concerned only with due process protection of innocent co-owners’ present possessory interest in the use of impounded vehicles to obtain critical life necessities. We are not being called upon to consider the practice at forfeiture proceedings, where—as both parties acknowledge—an innocent co-owner may prove an entitlement to a share of auction proceeds, but be unable to obtain release of a seized vehicle. The authority of the government to confiscate property even if that property is owned in whole or part by an innocent owner is well settled and we do not seek to cast doubt upon it here.

IV

Applying the standard announced above to the present case, we conclude that the City established a prima facie case for impoundment by showing probable cause for the Montero’s seizure, a likelihood of success in the forfeiture proceeding and the necessity for continued impoundment. Having made this showing as against Mr. Harris, it does not bear the burden of proving that respondent was not an innocent co-owner. Rather, the burden of proof shifted to respondent and it was incumbent upon her to prove by a preponderance of the evidence that she was an innocent co-owner who would suffer a substantial hardship due to continued impoundment. This she failed to do.

Here, the evidence was sufficient to establish respondent’s co-ownership. In addition, the evidence supported the conclusion that respondent was not complicit in the narcotics transaction because there was no proof that she knew or reasonably should have known that the Montero was being used to distribute cocaine in 2004, more than seven years after Mr. Harris’s last drug-related arrest. But respondent failed to show that her access to critical life necessities would suffer substantially as a result of continued impoundment. When asked to describe her use of the Montero, respondent testified that “[i]t vari[ed]” and that she used the car “[e]very so often . . . [m]aybe [on] a weekly basis.” Thus, respondent failed to show that she depended on the Montero as an “essential form of transportation . . . critical to life necessities” (Canavan, 1 NY3d at 143). Accordingly, in this case, the City’s interest in deterrence of future criminal conduct involving the Montero and in preserving it for sale at a later auction outweighed Ms. Harris’s present possessory interest. Therefore, the Appellate Division was correct to hold that release is not warranted here.

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

Smith, J. (concurring).

The question here is not what we think is the best possible way to accommodate the conflicting interests of the City of New York and Ms. Harris. The question is the constitutionality of a provision of the New York City Administrative Code that, as interpreted by both parties, allows the City to keep the car during the pendency of proceedings to forfeit Mr. Harris’s interest in it. The majority, in substance, upholds the Code provision as applied to Ms. Harris but says it cannot be validly applied to innocent co-owners who make a stronger showing of hardship than Ms. Harris has. Since I do not believe this Code provision is unconstitutional as applied to any innocent co-owners, I concur only in the result.

New York City Administrative Code § 14-140 (b) says that “all property or money suspected of having been used as a means of committing crime or employed in aid or furtherance of crime” shall be given to and kept by the City’s Property Clerk. Section 14-140 (e) (1) says that any such property “that shall remain in the custody of the property clerk for a period of three months without a lawful claimant entitled thereto shall ... be sold at public auction,” and the proceeds paid to the City. A person who “permitted or suffered” the criminal use of the property, or who was a participant or accomplice in it, “shall not be deemed to be the lawful claimant entitled” to the property.

The Administrative Code does not specifically address the rights of a person who is a “lawful claimant entitled” to part ownership of the property, and the application of the provision to that situation is not self-evident. But the City has interpreted it to mean that, in such a case, the property may be held by the Property Clerk and sold, and that after the sale the co-owner should receive her share of the proceeds. This reading of the legislation seems plausible, and Ms. Harris does not dispute it. She argues only that the retention of the property pending sale violates her due process rights. The question presented, then, is whether a state may constitutionally retain and sell an instrumentality of crime that is owned partly by an innocent person and partly by a guilty one.

The answer to that question under the United States Constitution is not in doubt. It follows a fortiori from the Supreme Court’s decision in Bennis v Michigan (516 US 442 [1996]). There, the Court reached the conclusion—shocking at first glance—that, when a car is used to commit a crime, a state may sell it and keep all the proceeds, even though the owner of the car is completely innocent. The Court said that “a long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use” (516 US at 446). Certainly, if a state may permanently deprive an innocent owner of her property, it may temporarily deprive an innocent co-owner like Ms. Harris—and that is all that New York City’s Administrative Code provision would do.

I find the majority’s attempt to distinguish Bennis as limited to cases where a trial court has “remedial discretion” to consider hardship (majority op at 244 n 9) completely unconvincing; the holding of Bennis is very clear. The majority might more persuasively argue that we should reject Bennis and adopt a contrary interpretation of the Due Process Clause of the New York Constitution (art I, § 6) (see People v P.J. Video, 68 NY2d 296 [1986]). Indeed, the Court in Bennis itself expressed discomfort with its holding, saying that the innocent owner’s “argument, in the abstract, has considerable appeal” (516 US at 453). Bennis was based on history and precedent; the Court concluded “that the cases authorizing actions of the kind at issue are Too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced’ ” (id. at 453, quoting J. W. Goldsmith, Jr.-Grant Co. v United States, 254 US 505, 511 [1921]).

Like the majority of the Supreme Court in Bennis, I dislike the result, but think it is correct. The rule that the instrumentality of a crime may be forfeited to the state, regardless of the innocence of its owner, has existed in Anglo-American law longer than the Due Process Clause. There are excellent reasons to change it, but it should be changed by legislation, not by novel judicial interpretations of the Constitution. I would adhere to Bennis as a matter of state constitutional law, saying of our State Constitution what Justice Thomas, concurring in Bennis, said of the federal one: “[T]he . . . Constitution does not prohibit everything that is intensely undesirable” (516 US at 454).

But we do not need to go as far as Bennis went to uphold the validity of the legislation in this case. This legislation has removed much of the unfairness from the ancient law of forfeiture. It gives no rights to the City against an innocent sole owner of property; Ms. Harris would face no problem recovering her car, had she not chosen to share ownership with a man who turned out to be a drug dealer. And even co-owners suffer only a temporary loss of their property; Ms. Harris will ultimately get her share of the sale proceeds. The injury to an innocent co-owner from being denied the use of the car pending sale is real, but it can be justified where—as will usually be true—it is necessary to protect the City’s interest in the property; surely, few automobiles released to co-owners are likely to be voluntarily returned for a forfeiture sale. Thus, even if I were prepared to depart from Bennis as a matter of state constitutional law, I would find that this City Administrative Code provision, as applied to innocent co-owners of vehicles, is not unconstitutional.

In saying that it is unconstitutional—not as applied to Ms. Harris, but as applied to a hypothetical co-owner who could make a stronger showing of hardship—the majority relies on Krimstock v Kelly (306 F3d 40 [2d Cir 2002]) and County of Nassau v Canavan (1 NY3d 134 [2003]). Neither of these cases, in my view, establishes an innocent co-owner’s substantive right to possession of a car—indeed, Krimstock obviously could not do so, for the Krimstock court was interpreting the federal Due Process Clause and was thus bound by Bennis's holding. Krimstock and Canavan involved procedural, not substantive, rights; their central holding is that the owner of an automobile alleged to be the instrumentality of a crime has a right to a prompt hearing on whether the allegation is likely to be proved true. Neither case decides that, even if the allegation of criminality is true, the car must be returned to a co-owner not connected with the criminal conduct.

I would therefore hold that, where the City proves at a Krimstock hearing, as it did here, the likelihood that a car was used by one of its owners to commit a crime, the City is not constitutionally required to release the car to an innocent co-owner, and I would affirm the Appellate Division’s order on that ground.

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

Order affirmed, with costs.

      . As used throughout this opinion, the term “innocent co-owner” is taken from the definition of “lawful claimant” in section 14-140 (e) (1) of the Administrative Code of the City of New York and denotes an individual who has not—or purports to have not—“permitted or suffered” a seized vehicle to be used in the commission of a crime and who was not—or purports to have not been—a “participant or accomplice” in such crime.

      . All charges against Mr. Harris have been dismissed for failure to prosecute.

      . In Krimstock, the Second Circuit held that after a vehicle is seized, the Due Process Clause requires the City to provide “claimants” with a “prompt retention hearing” to “test the probable validity of continued deprivation of their vehicles” (306 F3d at 69). But the court declined to “dictate a specific form” for that hearing (id.).

      On remand, the United States District Court for the Southern District of New York set forth the procedure governing “Krimstock” hearings (see generally Krimstock v Kelly, 2005 US Dist LEXIS 43845 [SD NY 2005]). As relevant here, either a person in lawful possession of the vehicle when it is seized or the vehicle’s registered and/or title owner may appear at a retention hearing that considers three issues:
      “whether probable cause existed for the arrest of the vehicle operator; whether it is likely that the City will prevail in an action to forfeit the vehicle!;] and whether it is necessary that the vehicle remain impounded in order to ensure its availability for a judgment of forfeiture” (id. at *4).

      . The Southern District order operative in this case was issued January 22, 2004. Currently, however, Krimstock hearings are governed by that court’s November 29, 2005 “Second Amended Order and Judgment” (id. at *1). With respect to the procedures relevant here, the orders are not substantively different. Accordingly, we cite herein only to the currently operative order.

      . Ms. Harris was not represented by counsel during the Krimstock hearing. Prior to the hearing, counsel for Mr. Harris offered to represent her. But at the hearing he declined to do so because of a purported “conflict of interest” between respondent and her husband.

      . It appears that in responding to this question, respondent was referring to the October 20, 2004 drug charge. Mr. Harris’s criminal history report—rap sheet—shows no arrests between August 17, 1997 and that date.

      . Specifically, OATH found that:
      “[t]he unrebutted evidence established that the police had probable cause for Mr. Harris’s arrest. . . the Department presented sufficient evidence to show that there was a likelihood of success in a forfeiture action and a need to retain the vehicle [and that] [t]he preponderance of the evidence demonstrated that Mr. Harris committed a felony and the vehicle was an instrumentality of that crime.”

      . OATH explained that the City failed to meet its burden of proof on the issue of innocent ownership because:
      “There was no allegation that Ms. Harris was present during the sale . . . There was no evidence that Ms. Harris was aware of any ongoing narcotics use or sale by her husband. Nor was there any evidence that Ms. Harris had ever been involved in any narcotics activity. There was no evidence that Ms. Harris had ever been arrested or convicted of any crime. Nor did the Department inquire about the Harrises’ income. The Department did not even ask Ms. Harris what she or her husband did for a living [and] [t]here was no evidence about their other expenses . . . “Moreover there was no evidence that, prior to the instant offense, [Mr. Harris] had ever used a car to commit a crime.”

      . Our holding here is predicated upon the significant interests of innocent co-owners that were previously recognized in Canavan and Krimstock (see at 244-245, infra). But we note that the U.S. Supreme Court’s decision in Bennis v Michigan (516 US 442 [1996]), which considered a due process challenge brought by a “joint owner” whose vehicle was forfeited because her husband used it to solicit a prostitute, does not mandate a different result (see id. at 443). As the Second Circuit explained in Krimstock, Bennis’s holding that a Michigan forfeiture statute did not violate the Federal Due Process Clause was based, in part, upon the Michigan court’s “ ‘remedial discretion’ to consider whether forfeiture of a vehicle would leave its owner or owners without transportation” (Krimstock, 306 F3d at 56 n 15; see also Bennis, 516 US at 453 [reasoning that the force of petitioner’s argument that the statute unfairly relieved prosecutors of “the burden of separating co-owners who are complicit in the wrongful use of property from innocent co-owners ... is reduced ... by the Michigan Supreme Court’s confirmation of the trial court’s remedial discretion”]). Our holding today provides OATH with a similar “remedial discretion.”

      . The Rules of the City of New York define “claimant” as “the person from whose person or possession property, other than contraband, was taken or obtained” (38 RCNY 12-31) or the claimant’s “representative authorized by a notarized writing to claim th[at] property” (38 RCNY 12-32 [e] [ii]).


author: Read, J.

text:
    [878 NE2d 1001, 848 NYS2d 585]
    Gregory G. Stiver et al., Appellants, v Good & Fair Carting & Moving, Inc., Respondent.
    Argued October 11, 2007;
    decided November 19, 2007

      POINTS OF COUNSEL

      Edward C. Cosgrove, Buffalo, for appellants.
    Defendant had a duty of care to third parties endangered by the negligent performance of motor vehicle inspections. (Church v Callanan Indus., 99 NY2d 104; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Lauer v City of New York, 95 NY2d 95; Steitz v City of Beacon, 295 NY 51; Strauss v Belle Realty Co., 65 NY2d 399; Koch v Otis El. Co., 10 AD2d 464; Wisner v Harmas Holding Corp., 1 AD2d 957, 2 NY2d 855; Kahner v Otis El. Co., 96 App Div 169, 183 NY 512; MacPherson v Buick Motor Co., 217 NY 382.)

      Thorn Gershon Tymann and Bonanni, LLP, Albany (Erin Mead of counsel), for respondent.
    I. Defendant owed no common-law duty of care to plaintiff. (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Espinal v Melville Snow Contrs., 98 NY2d 136; Moch Co. v Rensselaer Water Co., 247 NY 160; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Church v Callanan Indus., 99 NY2d 104; Pulka v Edelman, 40 NY2d 781; Eiseman v State of New York, 70 NY2d 175; World Trade Knitting Mills v Lido Knitting Mills, 154 AD2d 99; Northbrook Prop. & Cas. Ins. Co. v D.J.L. Warehouse Corp., 146 AD2d 574; Nallan v Helmsley-Spear, Inc., 50 NY2d 507.) II. No private right of action can be implied from the statutory scheme governing the conduct of State-mandated motor vehicle inspections. (Sheehy v Big Flats Community Day, 73 NY2d 629; CPC Intl. v McKesson Corp., 70 NY2d 268; Carrier v Salvation Army, 88 NY2d 298; Hammer v American Kennel Club, 1 NY3d 294; Mark G. v Sabol, 93 NY2d 710; Pelaez v Seide, 2 NY3d 186; Gain v Eastern Reinforcing Serv., 193 AD2d 255; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Miller v Higgins, 57 AD2d 1010; Wood v Neff, 250 AD2d 225.) III. Public policy precludes the imposition of liability in this case. (Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220; Strauss v Belle Realty Co., 65 NY2d 399; Tobin v Grossman, 24 NY2d 609.) IV Defendant breached no duty to plaintiff as the governing regulations did not require an inspection of the part which broke. (Rutherford v Signode Corp., 11 AD3d 922; Baehre v Sagamore Resort Hotel, 4 AD3d 810; Van Ostberg v Crane, 273 AD2d 895.)

      Fiedelman & McGaw, Jericho (Andrew Zajac and Dawn C. DeSimone of counsel), Martin F. Hayes, Rona L. Platt and Brendan T. Fitzpatrick for Defense Association of New York, Inc., amicus curiae.
    Good & Fair Carting & Moving, Inc. was entitled to the dismissal of plaintiffs claims because it owed no duty of care. (Pulka v Edelman, 40 NY2d 781; Eiseman v State of New York, 70 NY2d 175; Espinal v Melville Snow Contrs., 98 NY2d 136; Darby v Compagnie Natl. Air France, 96 NY2d 343; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Palsgraf v Long Is. R.R. Co., 248 NY 339; Turcotte v Fell, 68 NY2d 432; Oathout v Johnson, 88 AD2d 1010; Binghamton Masonic Temple v City of Binghamton, 213 AD2d 742.)
   OPINION OF THE COURT

Read, J.

In the dusk of the evening of August 8, 2001, plaintiff Gregory G. Stiver was driving his automobile in the eastbound center lane of a divided highway in Tonawanda. The weather was fine; traffic was moderately heavy. Without warning, the vehicle immediately ahead of him shifted abruptly into the righthand lane. When plaintiff “looked to see what [this driver] was swerving to miss and started to apply the brakes,” he saw a car stopped in the center lane, dead ahead of him. Unable to slow down or pull over into another lane in time to avoid a collision, plaintiff rear-ended the disabled car, which was owned and driven by Stephen Corbett. Plaintiff was wearing a seat belt and his automobile’s airbag deployed upon impact. Nonetheless, his head struck the steering wheel with sufficient force to impair his right eye permanently.

On June 27, 2002, plaintiff, with his wife suing derivatively, commenced a lawsuit against Corbett for damages caused by the automobile accident, alleging that he had suffered a serious injury within the meaning of the No-Fault Law (see Insurance Law § 5102 [d]). During the course of discovery, Corbett testified at an examination before trial that, just before his car slid to a standstill, he heard a rumbling noise and experienced difficulty steering; he observed pieces of the vehicle’s transmission rolling down the road. When he inspected his car just after the accident, he saw that the front right wheel was “sideways with the inside of it facing forward,” and a half shaft, the driveshaft linking this wheel to the transmission, was disconnected and dangling from the vehicle’s undercarriage.

Plaintiffs subsequently learned that on June 13, 2001, about two months before the accident, a mechanic employed by defendant Good & Fair Carting & Moving, Inc., had performed the required annual New York State motor vehicle inspection of Corbett’s car, and had issued the certificate denoting that the car was in proper and safe working condition. On June 10, 2004, plaintiffs commenced this action against Good & Fair, alleging that the collision was caused by its negligent inspection of the Corbett vehicle.

On August 2, 2005, Good & Fair moved for summary judgment to dismiss the complaint on the ground that it owed no contractual or common-law duty to plaintiffs or, alternatively, breached no such duty. Plaintiffs opposed the motion. While acknowledging that Good & Fair would ordinarily owe no duty to third parties lacking contractual privity with Corbett, they claimed that this case was an exception to the general rule because Good & Fair launched an instrument of harm, and they detrimentally and reasonably relied on Good & Fair’s inspection.

On November 10, 2005, Supreme Court denied Good & Fair’s motion, citing the Appellate Division’s decision in Wood v Neff (250 AD2d 225 [3d Dept 1998]) as controlling authority for the proposition that “an inspector’s duties under the Vehicle and Traffic Law . . . extend to third parties as it is reasonably foreseeable that someone other than [the] owner may be injured in an accident because of a defect in a motor vehicle.” Importantly, however, Wood was handed down before our decisions in Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]) and Church v Callanan Indus. (99 NY2d 104 [2002]). Nonetheless, the trial court opined that it “ha[d] no alternative but to apply [Wood] . . . and conclude that there is a duty under the law, the breach of which may be the basis for a finding of negligence against” Good & Fair.

On September 22, 2006, the Appellate Division unanimously reversed Supreme Court’s order on the law, granted the motion for summary judgment and dismissed the complaint. Citing several of our cases, most notably Espinal and Church, the court found no basis for deviating from the general rule that “recovery for negligent performance of a contractual duty is limited to an action for breach of contract, and a party to a contract is not liable in tort to noncontracting third parties” (Stiver v Good & Fair Carting & Moving, Inc., 32 AD3d 1209, 1210 [4th Dept 2006]). We granted plaintiffs’ motion for leave to appeal, and now affirm.

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal, 98 NY2d at 138; see also Church, 99 NY2d at 111 [“(O)rdinarily, breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties upon the promisor”]). We have identified only three exceptions to this general rule, which we summarized in Espinal. These are

“(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, Taunche[s] a force or instrument of harm’ [quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 (1928)]; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties [citing Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 (1990)] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely [citing Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 (1994)]” (Espinal, 98 NY2d at 140; see also Church, 99 NY2d at 112-113).

Good & Fair’s allegedly negligent inspection does not match any of these exceptions.

First, Good & Fair cannot be said to have launched an instrument of harm since there is no reason to believe that the inspection made Corbett’s vehicle less safe than it was beforehand (see Church, 99 NY2d at 112). Inspecting the car did not create or exacerbate a dangerous condition (see Espinal, 98 NY2d at 142-143). Second, there was no detrimental reliance. The plaintiff driver did not know whether or when the Corbett vehicle had been inspected. He had never seen the vehicle before the accident, and had no relationship to its owner. Moreover, as Good & Fair observes, there are vehicles on the road, including many vehicles registered in other states, which have not passed a New York State motor vehicle safety inspection. As for the third exception, we cannot reach it in this case. The Appellate Division correctly determined that it was unpreserved for review.

Finally, as a matter of public policy, we are unwilling to force inspection stations to insure against risks “the amount of which they may not know and cannot control, and as to which contractual limitations of liability [might] be ineffective” (Eaves Brooks, 76 NY2d at 227). If New York State motor vehicle inspection stations become subject to liability for failure to detect safety-related problems in inspected cars, they would be turned into insurers. This transformation would increase their liability insurance premiums, and the modest cost of a State-mandated safety and emission inspection ($12 at the time of the inspection in this case) would inevitably increase.

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

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

Order affirmed, with costs.


author: Ciparick, J.

text:
    [878 NE2d 1016, 848 NYS2d 600]
    The People of the State of New York, Respondent, v Matthew Jones, Appellant.
    Argued October 17, 2007;
    decided November 20, 2007

      POINTS OF COUNSEL

      Nancy E. Little, New York City, and Steven Banks for appellant.
    The information was jurisdictionally defective as its allegations—that appellant and other individuals were standing on the sidewalk at Seventh Avenue and 42nd Street at 2:00 a.m., causing pedestrians to walk around them—were facially insufficient to establish disorderly conduct under Penal Law § 240.20 (5) and, consequently, to establish a lawful arrest underlying the resisting arrest charge under Penal Law § 205.30. (People v Carcel, 3 NY2d 327; People v Casey, 95 NY2d 354; People v Alejandro, 70 NY2d 133; Matter of Jahron S., 79 NY2d 632; People v Potwora, 44 AD2d 207; People v Chesnick, 302 NY 58; People v Munafo, 50 NY2d 326; People v Most, 171 NY 423; People v Nixon, 248 NY 182; People v Pearl, 66 Misc 2d 502.)

      Robert M. Morgenthau, District Attorney, New York City (Paula-Rose Stark and David M. Cohn of counsel), for respondent.
    The criminal court information was jurisdictionally proper. (People v Alexander, 97 NY2d 482; People v Taylor, 65 NY2d 1; People v Hansen, 95 NY2d 227; People v Keizer, 100 NY2d 114; People v Casey, 95 NY2d 354; People v Miles, 64 NY2d 731; People v Allen, 92 NY2d 378; People v Henderson, 92 NY2d 677; People v Alejandro, 70 NY2d 133; People v Konieczny, 2 NY3d 569.)
   OPINION OF THE COURT

Ciparick, J.

This appeal tests the jurisdictional sufficiency of an information charging disorderly conduct. Because the factual allegations in the accusatory instrument failed to establish a prima facie case, the conviction should be vacated and the information dismissed.

Defendant was charged, by information, with disorderly conduct in Manhattan (Penal Law § 240.20 [5]). The information, tracking the statutory language, states, in part, that on June 12, 2004, at approximately 2:01 a.m., on 42nd Street and Seventh Avenue “defendant, with intent to cause public inconvenience, annoyance and alarm and recklessly creating a risk thereof, obstructed vehicular and pedestrian traffic.” The information further provides a statement by a police officer that:

“he observed defendant along with a number of other individuals standing around at the above location, to wit a public sidewalk, not moving, and that as a result of defendants’ [sic] behavior, numerous pedestrians in the area had to walk around defendants [sic] . . .
“[D]eponent directed defendant to move and defendant refused and as deponent attempted to stop defendant, defendant did run.”

The next day, June 13, defendant appeared in court with counsel and sought dismissal of the information, contending that it was facially insufficient. The court denied the motion. Defendant then agreed to plead guilty to one count of disorderly conduct in satisfaction of all charges and was sentenced to time served. The Appellate Term later affirmed, with one Justice dissenting. A Judge of this Court granted leave to appeal and we now reverse, vacate the conviction and dismiss the information as facially insufficient.

The factual portion of an information “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” (CPL 100.15 [3]). Under CPL 100.40 (1) an information is sufficient on its face when:

“(a) It substantially conforms to the requirements prescribed in section 100.15; and
“(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
“(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.”

Paragraphs (b) and (c) of CPL 100.40 (1), read in conjunction, place the burden on the People to make out their prima facie case for the offense charged in the text of the information. Unlike misdemeanor or felony complaints, which do not require such a showing in an accusatory instrument, the prima facie requirement is specific to informations (compare CPL 100.40 [4]).

“The reason for requiring the additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law” (People v Alejandro, 70 NY2d 133, 137 [1987]). A defendant charged by information does not have the same safeguards as a defendant charged by a complaint {see id. at 138). For instance, a felony complaint will generally be followed by a grand jury proceeding where the People must present evidence demonstrating a prima facie case in order to obtain an indictment {see CPL art 190). Likewise, a misdemeanor complaint must be followed by a supporting deposition {see CPL 100.40 [4] [b]). Here, the prosecution used an information to bring the case to trial, and thus this instrument must set forth nonhearsay allegations that, if proven to be true, make out every element of the offense charged {see CPL 100.40 [1] [c]; 100.15 [3]).

Failure to assert sufficient nonhearsay factual allegations is a jurisdictional defect (see People v Alejandro, 70 NY2d at 134-135). To meet the jurisdictional requisite to prosecute defendant for disorderly conduct under Penal Law § 240.20 (5), the People were obliged to set forth a prima facie case that defendant “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . obstructed] vehicular or pedestrian traffic.”

The allegations in the information do not meet this burden. Nothing in the information indicates how defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing “public inconvenience, annoyance or alarm.” The conduct sought to be deterred under the statute is “considerably more serious than the apparently innocent” conduct of defendant here (People v Carcel, 3 NY2d 327, 331 [1957]). Something more than a mere inconvenience of pedestrians is required to support the charge (id. at 332). Otherwise, any person who happens to stop on a sidewalk— whether to greet another, to seek directions or simply to regain one’s bearings—would be subject to prosecution under this statute (see People v Nixon, 248 NY 182, 185 [1928] [Those congregating on the street display “atrociously bad manners” by “discommoding) some other persons” but such conduct alone does not necessarily give rise to disorderly conduct]).

Thus, as the information fails to set forth a prima facie case of disorderly conduct under Penal Law § 240.20 (5), the accusatory instrument is jurisdictionally defective and must be dismissed. Likewise, the People’s request that the resisting arrest charge be reinstated must be denied. Penal Law § 205.30 provides that “[a] person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person” (emphasis added). As the information failed to allege sufficient facts to support the underlying disorderly conduct charge, those facts could not be deemed sufficient to allege that the arrest was “authorized” as required under Penal Law § 205.30.

Accordingly, the order of the Appellate Term should be reversed and the information dismissed.

Chief Judge Kaye and Judges Gbaffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

      . He was also charged with a violation of Penal Law § 205.30 (resisting arrest) which was dismissed upon his plea to disorderly conduct.

      . Both Cárcel and Nixon involved Penal Law § 722, the predecessor statute to Penal Law § 240.20, which provided in part that “any person who, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned . . . [Congregates with others on a public street and refuses to move on when ordered by the police” is guilty of disorderly conduct.