text:
    [802 NE2d 1094, 770 NYS2d 696]
    Richard T. Lepkowski et al., Appellants, v State of New York, Respondent.
    Argued October 16, 2003;
    decided December 18, 2003

      POINTS OF COUNSEL

      Lisa M. King, Albany, and William P. Seamon for appellants.
    I. The claim, which sets forth the nature of the claim, date and place of the claim and method of calculating damages, meets all the pleading requirements of Court of Claims Act § 11 (b). (Finnerty v New York State Thruway Auth., 75 NY2d 721; Heisler v State of New York, 78 AD2d 767; Lurie v State of New York, 73 AD2d 1006; Buckles v State of New York, 221 NY 418; De Marco v State of New York, 43 AD2d 786, 37 NY2d 735; Brown v State of New York, 89 NY2d 172; Cobin v State of New York, 234 AD2d 498; Harper v State of New York, 34 AD2d 865; Bowles v State of New York, 208 AD2d 440; Santos v State of New York, 291 AD2d 851.) II. The claim was properly verified. (Martin v State of New York, 185 Misc 2d 799; Betzler v Carey, 109 Misc 2d 881; Matter of Maniscalco v Power, 4 AD2d 479, 3 NY2d 918; Hood v State of New York, 113 Misc 404; SLG Graybar v Hannaway Law Offs., 182 Misc 2d 217; Air N.Y. v Alphonse Hotel Corp., 86 AD2d 932; Matter of Ames Dept. Stores v Assessor of Town of Concord, 102 AD2d 9.) III. The Appellate Division committed several reversible errors in reaching its conclusion that the State could not investigate this claim. (Leon

      v Martinez, 84 NY2d 83; Goshen v Mutual Life Ins. Co., 98 NY2d 314; Taylor v State of New York, 36 AD2d 878; Loeb v Tanenbaum, 124 AD2d 941; Rosenman Colin Freund Lewis & Cohen v Edelman, 165 AD2d 533; Cannon v State of New York, 163 Misc 2d 623; Mobil Health v State of New York, 149 Misc 2d 784; Vicidomini v State of New York, 21 AD2d 837; Calco v State of New York, 165 AD2d 117.)

      Eliot Spitzer, Attorney General, Albany (Kathleen M. Treasure, Caitlin J. Halligan and Daniel Smirlock of counsel), for respondent.
    The claims must be dismissed because claimants have not complied with the pleading requirements of the Court of Claims Act. (Alston v State of New York, 97 NY2d 159; Finnerty v New York State Thruway Auth., 75 NY2d 721; Buckles v State of New York, 221 NY 418; Glassman v Glassman, 309 NY 436; Lichtenstein v State of New York, 93 NY2d 911; Dreger v New York State Thruway Auth., 81 NY2d 721; Thomann v City of Rochester, 256 NY 165; Ponsrok v City of Yonkers, 254 NY 91; Swierkiewicz v Sorema N.A., 534 US 506; Conley v Gibson, 355 US 41.)
   OPINION OF THE COURT

Read, J.

We are asked whether the claims in this consolidated action comply with the substantive pleading requirements of section 11 (b) of the Court of Claims Act. We conclude that the claims do not comply because they fail to allege the times when and the place where the claims arose, any items of damage or the total sum claimed. We further conclude that the State must follow the steps in CPLR 3022 in order to preserve any objection that a claim or notice of intention does not comply with the verification requirement in section 11 (b).

I.

Claimants are public employees working in executive branch agencies in civil service titles allocated salary grade 23 or higher. They are all included within the Professional, Scientific and Technical Services Unit (PS&T), which is represented by the Public Employees Federation (PEF) for purposes of collective bargaining with the State of New York.

On July 21, 1994, the Lepkowski claimants and other PS&T employees sued the State in federal court, seeking unpaid overtime pay, liquidáted damages and reasonable attorneys’ fees, to all of which they claimed entitlement under the federal Fair Labor Standards Act (FLSA). In February 1996, the plaintiff employees moved for partial summary judgment on liability and the State cross-moved for summary judgment to dismiss. The State contended, among other things, that the Eleventh Amendment guarantee of state sovereign immunity deprived the federal courts of subject matter jurisdiction. The United States District Court for the Northern District of New York rejected the argument, and held that the State was liable for overtime compensation to certain of these employees on account of “a minor aspect of one of [the State’s] policies” (Close v State of New York, 1996 WL 67979, *11, 1996 US Dist LEXIS 1748, *34 [ND NY, Feb. 13, 1996]).

While the case was pending in District Court, however, the United States Supreme Court handed down Seminole Tribe of Fla. v Florida (517 US 44 [1996]), which significantly altered prior understandings of Congress’ authority to abrogate the states’ Eleventh Amendment immunity. In light of Seminole, the State succeeded when it again sought dismissal on Eleventh Amendment grounds (1996 WL 481550, 1996 US Dist LEXIS 12330 [ND NY, Aug. 19, 1996]), and the United States Court of Appeals for the Second Circuit affirmed (125 F3d 31 [1997]).

On January 22, 1998, roughly five months after the Second Circuit’s decision, the Lepkowski claim was filed in the Court of Claims. The claim, which mimics the dismissed federal FLSA complaint, alleges that the employees worked over 40 hours in unspecified work weeks from July 1992 to the present; it does not identify where the claims arose, itemize damages or indicate the total sum sought. One individual claimant verified the claim, to which is attached a list of 377 claimants with their home addresses.

On February 19, 1997, claimants in Abelson served the Attorney General with a notice of intention to file an FLSA claim in the Court of Claims on behalf of 390 PS&T employees. The Abelson claim, filed on January 21, 1998, alleges that claimants worked more than 40 hours in unspecified work weeks since April 1994, and does not identify where the claims arose, itemize damages or indicate the total sum sought. One individual claimant verified Abelson on behalf of all claimants, who fisted their home addresses and identified the state agencies for which they worked.

By order filed on January 28, 1999, the Court of Claims consolidated Abelson into Lepkowski, finding that consolidation would allow for more efficient discovery since 148 of the claimants were included in both cases. In June 2001, the State moved to dismiss on various grounds, including failure to comply with both the substantive pleading and the verification requirements of Court of Claims Act § 11 (b). This provision prescribes in relevant part that

“[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed . . . The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court” (emphasis added).

In a decision and order filed on September 14, 2001, the Court of Claims denied the State’s motion to dismiss on section 11 (b) grounds, concluding that both claims were sufficiently detailed to fulfill section 11 (b)’s substantive pleading requirements, and were properly verified within the meaning of CPLR 3020 (d) because the verifiers had knowledge of the facts and were united in interest with the other claimants. On the State’s cross appeal, the Appellate Division, with two Justices dissenting, reversed and granted the State’s motion to dismiss (302 AD2d 765 [3d Dept 2003]).

In the Appellate Division’s view, “[w]hile the claims . . . satisfactorily state the nature of the relief sought by claimants, they completely fail to provide the times when and the place where such claims arose, any items of damage or the total sum claimed” as required by section 11 (b) (302 AD2d at 766). These omissions were not remedied by any access that the State might have to this information from its own records because “the sufficiency of a claim rests solely upon the assertions contained therein, and [the State] is not required to go beyond the claim in order to investigate” (id.). Further, the record before the Court “belie[d] a claim that claimants’ work hours were a matter of public record readily ascertainable by [the State]” (id. at 766-767). Finally, the Appellate Division concluded that while the claimants might be united in interest, “there is no evidence that the two claimants who verified the claims are acquainted with the factual premises for the remaining . . . claimants’ entitlement to overtime compensation” (id. at 767).

In the opinion of the two dissenting Justices, however, claimants complied with the substantive pleading requirements of section 11 (b) by alleging the “proverbial where, when and how” of their claims in enough "detail for the State to “conduct a meaningful investigation regarding its potential liability” (id. at 768); and the State waived any objection to defective verification by virtue of its failure to take timely action under CPLR 3022 (id. at 769). Claimants now appeal to us as of right (CPLR 5601 [a]).

II.

The State’s waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant’s compliance with specific conditions placed on the waiver by the Legislature (see Court of Claims Act § 8 [specifying that the State waives its immunity from liability and action “provided the claimant complies with the limitations” of article II of the Court of Claims Act, which includes section 11]; see also Alston v State of New York, 97 NY2d at 163). Further, “[b]ecause suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). As relevant here, section 11 (b) places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) “the nature of [the claim]”; (2) “the time when” it arose; (3) the “place where” it arose; (4) “the items of damage or injuries claimed to have been sustained”; and (5) “the total sum claimed.”

Claimants fulfilled section 11 (b)’s requirement to specify “the nature of [the claim].” They asserted that each named claimant was a past or present state employee; was in the PS&T bargaining unit; was assigned to a civil service title allocated grade 23 or higher; had worked overtime; was required to be paid overtime compensation pursuant to the FLSA; and was not paid this overtime compensation. They did not, however, adequately allege the remaining elements required by section 11 (b).

As for “the time when” the claims accrued, the Lepkowski claimants specified July 1992 and continuing to the present, and the Abelson claimants specified April 1994 and continuing to the present. All that the State may guess from these allegations is that some or all of the 377 Lepkowski and 390 Abelson claimants worked some number of hours in excess of 40 in some or all of the work weeks over many months and years. This is insufficiently definite “to enable the State ... to investigate the claim[s] promptly and to ascertain its liability under the circumstances,” which is the guiding principle informing section 11 (b) (Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]).

Claimants assert in their brief that the “place where” their claims arose is their various work locations. These are not specified. Lepkowski includes the claimants’ names and home addresses, but does not identify the state agency or department for which each claimant worked or in any other way particularize where any claim arose. In addition to names and home addresses, Abelson identifies the agency or department for which each claimant worked, but not a primary work location. For those claimants employed in agencies or departments that maintain offices in multiple locations, Abelson reveals little more than that their claims arose somewhere within the state’s borders.

As for “the items of damage or injuries” and the “total sum” sought, the claims are similarly silent. Claimants allege only that they “seek recovery of all unpaid overtime compensation for all hours worked over 40 hours in a work week and not compensated at one and one-half times the regular rate.”

Claimants contend that the State can easily ascertain from its personnel records exactly when and where each claim arose and how much their claims are worth; however, this is not the State’s burden. The Court of Claims Act does not require the State to ferret out or assemble information that section 11 (b) obligates the claimant to allege (Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996]). Moreover, we agree with the Appellate Division that, as a matter of fact, the record does not establish that the State possesses detailed time records for claimants for the time periods covered by this litigation. State employees holding positions allocated salary grade 23 or higher were not required to record actual hours worked on their time sheets until the 1999-2003 collective bargaining agreement between the State and PEF took effect.

As noted earlier, claimants first pressed their FLSA claims in federal court; however, the substantive pleading requirements in the Court of Claims differ substantially from the rules for pleading a complaint in federal court (see Fed Rules Civ Pro rule 8 [a] [“A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of (jurisdictional grounds), (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks”]). Here, claimants have recycled their federal complaint into a claim without refashioning its elements to conform with section 11 (b)’s substantive pleading requirements, which condition the State’s waiver of sovereign immunity. These claims were required, at the very least, to specify the state agency or department for which each claimant worked; the primary work location for each claimant; those work weeks in which each claimant worked overtime; the actual number of hours of overtime worked by each claimant during these work weeks; and the total sum of damages sought by each claimant as unpaid overtime as of the date of filing.

Since these claims are jurisdictionally defective for nonconformity with section 11 (b)’s substantive pleading requirements, we need not reach the questions raised by the parties regarding verification. In light of the proliferating Court of Claims cases on the subject of section 11 (b)’s verification requirement, however, we consider it advisable to dispel the gathering confusion about whether or under what circumstances CPLR 3022 bears on the matter. 6

Pursuant to CPLR 3022, “when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient ‘with due diligence’ returns the [pleading] with notification of the reason(s) for deeming the verification defective” (Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]). We have never specified a uniform time period by which to measure due diligence (id. n 3). A defendant who does not notify the adverse party’s attorney with due diligence waives any objection to an absent or defective verification.

Section 11 (b) requires the claim and notice of intention to be verified “in the same manner as a complaint in an action in the [S]upreme [C]ourt” (emphasis added). “Manner” is commonly understood to mean “[t]he way in which something is done or takes place; method of action; mode of procedure” (9 Oxford English Dictionary 324 [2d ed 1989]). Because the Legislature has mandated that verification “take[ ] place” in the Court of Claims following the same “method of action” or “mode of procedure” employed for an action in Supreme Court, there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court. Section 11 (b) therefore embraces CPLR 3022’s remedy for lapses in verification.

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

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

Order affirmed, with costs.

      . Pursuant to the collective bargaining agreement between the State and PEF as well as the Rules of the Comptroller, employees holding positions allocated salary grade 23 or higher were not paid overtime compensation for horns worked over 40 in a given work week. Although these employees were considered salaried and therefore ineligible for overtime compensation, their pay was nonetheless potentially subject to deductions for minor disciplinary infractions, court appearances as a party to an action, military service and absences less than one day. The employees argued that as a result, the State violated the FLSA’s salary basis test for determining whether an employee qualifies as a bona fide executive, administrative or professional employee exempt from the FLSA’s overtime provisions; and was required to compensate them for overtime hours worked. The District Court Judge held that the partial-day docking, court appearance and military service provisions of the salary basis test were invalid in the public sector, but that the disciplinary penalties provision applied. He accordingly determined that the State’s policy to dock these employees’ pay for minor disciplinary infractions removed them from the FLSA overtime exemption unless they were lawyers, physicians or certain computer operators.

      . The Court of Claims granted the State’s motion to the extent of dismissing those portions of the Lepkowski and Abelson claims which sought declaratory and CPLR article 78 relief; and dismissing as untimely those Lepkowski claims accruing more than six months before the claim’s filing, and those Abelson claims accruing more than six months before service of the notice of intention. Claimants appealed so much of the court’s decision and order as applied the six-month statute of limitations in Court of Claims Act § 10 (4). They withdrew this appeal following our decision in Alston v State of New York (97 NY2d 159 [2001] [holding that under the terms of the waiver of sovereign immunity in Court of Claims Act § 8, the State retained its immunity as to claims not complying with the time limitations in Court of Claims Act § 10 (4), upon which the waiver was conditioned]).

      . By contrast, while CPLR 3017 (a) requires a complaint to contain a demand for the relief sought, CPLR 3017 (c) for many years has provided that the complaint in a medical or dental malpractice suit or in an action against a municipality shall not state the amount of money damages sought. Just recently, the Legislature amended section 3017 (c), which now prohibits the complaint in a personal injury or wrongful death action from setting forth the amount of money damages sought (see L 2003, ch 694, § 1, eff Nov. 27, 2003).

      . As noted earlier, the Court of Claims dismissed as untimely those claims accruing more than six months before the Lepkowski claim was filed (i.e., before July 23, 1997) and more than six months before the notice of intention was served in Abelson (i.e., before August 19, 1996).

      . See Martin v State of New York (185 Misc 2d 799 [Ct Cl 2000] [holding generally that section 11 (b) makes verification a nonwaivable jurisdictional predicate for suit in Court of Claims]); Vogel v State of New York (187 Misc 2d 186 [Ct Cl 2000] [distinguishing Martin and holding that objection to claim as untimely because of an unverified notice of intention is waived unless raised with particularity as provided for in Court of Claims Act § 11 (c)]); Jacobs v State of New York (193 Misc 2d 413 [Ct Cl 2002] [suggesting that while an unverified claim must be dismissed, inadequate or improper verification is not similarly fatal]); Price v State of New York (2003 NY Slip Op 51086[U] [Ct Cl, May 15, 2003] [disagreeing generally with Martin and reviewing relevant case law and legislative history of 1990 amendment of section 11, but nonetheless dismissing unverified claim because of Appellate Division decisions in Graham v Goord (301 AD2d 882 [3d Dept 2003] [affirming dismissal of an unverified claim reviewed upon claimant’s application for filing fee reduction]) and Lepkowski]); and Turner v State of New York (2 Misc 3d 370 [Ct Cl 2003] [endorsing distinction between absent and defective verification and suggesting that defective verification of claim is waived if defendant fails to comply with CPLR 3022, but that this provision may not apply to defective notice of intention because a notice is not a pleading]). The Court of Claims’ on-line database of decisions includes at least another half-dozen recent opinions exploring various implications of treating section 11 (b)’s verification requirement as a nonwaivable jurisdictional prerequisite of the court’s subject matter jurisdiction (see <www.nyscourtofclaims.state.ny.us>). This spate of decisions has not gone unnoticed (Court Laments Rigidity of Verification Requirements But Deems Itself Bound and Dismisses Claim Though State Suffered No Prejudice Whatever, 138 Siegel’s Practice Review, at 3 [Aug. 2003]; When State Attempts to Avoid Its Own Promise to Disregard Minor Verification Mistake, Court’s Par tience Is Exhausted and State Gets Estopped, 138 Siegel’s Practice Review, at 3 [Aug. 2003]; Failure to Verify Claim Proper Brings Dismissal in Court of Claims Even Though Notice of Intention Was Verified, 107 Siegel’s Practice Review, at 3 [Apr. 2001]). The shift in historic Court of Claims practice is not entirely uniform either, however, which further confuses matters for the practicing bar and pro se claimants (see e.g. Rivera v State of New York [Ct Cl, Nov. 26, 2001, Motion No. M-64077, McNamara, J.] [rejecting argument that verification is nonwaivable jurisdictional requirement and finding CPLR 3022 procedure applicable]).


source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [802 NE2d 1105, 770 NYS2d 707]
    Sean Fullan et al., Respondents, v 142 East 27th Street Associates et al., Defendants, and 27 Realty, LLC, et al., Appellants.
    Argued November 19, 2003;
    decided December 22, 2003

      POINTS OF COUNSEL

      Kaufman Friedman Plotnicki & Grun, LLP, New York City (Howard Grun of counsel), for appellants.
    Appellants are not liable to respondents for the fair market rent appeal (FMRA) award under the FMRA provisions of the Rent Stabilization Code, the Division of Housing and Community Renewal’s policy statement and opinion letter, and decisional law. (Polanco v Higgins, 175 AD2d 729; Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353; Spivak v Madison-54th Realty Co., 60 Misc 2d 483; Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545; Matter of Greenberg Real Estate v Division of Hous. & Community Renewal, 258 AD2d 313.)

      Law Offices of Mitchell Merlis, New York City (Mitchell Merlis of counsel), for respondents.
    The tenants (plaintiffs/ respondents) may enforce their fair market rent appeal (FMRA) award against the current owners (defendants/appellants) in a plenary action in Supreme Court. The Division of Housing and Community Renewal’s Policy Statement 93-1 and opinion letter, dated August 10, 1999, are inapplicable to such a plenary proceeding. (Polanco v Higgins, 175 AD2d 729; Green v Santa Fe Indus., 70 NY2d 244; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481; Watts v Swiss Bank Corp., 27 NY2d 270; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Matter of Greenberg Real Estate v Division of Hous. & Community Renewal, 258 AD2d 313; Coulston v Singer, 86 Misc 2d 1001; Matter of Greenthal Co. v State Div. of Hous. & Community Renewal, 126 Misc 2d 795; Matter of Gaines v New York State Div. of Hous. & Community Renewal, 230 AD2d 631; Turner, 308 Realty v Spear, 134 Misc 2d 733.)
   OPINION OF THE COURT

Ciparick, J.

This appeal requires us to determine whether a current owner may be held liable for a fair market rent appeal (FMRA) award for excess rents collected by a previous owner, where the current owner was not a party to the FMRA and did not have an opportunity to participate in the FMRA process. We conclude that, under these circumstances, a current owner cannot be held liable for the FMRA award.

Plaintiffs Sean Fullan and Peggy Bates are tenants in a rent stabilized apartment in a building currently owned by defendant 27 Realty, LLC. When plaintiffs signed their lease in 1985— setting the monthly rent at $775—the property was owned by Dobro Corporation. In 1991, plaintiffs filed an FMRA with the Division of Housing and Community Renewal (DHCR), alleging that their monthly rent was in excess of fair market value. Two years later, DHCR issued an order determining that the fair market rent for the subject apartment was $434.34 per month, rather than $775, and adjusting the initial regulated rent to reflect that amount. As a result, DHCR found that a refund in the amount of $37,480.05 was due plaintiffs.

In October 1993, Dobro filed a petition for administrative review (PAR), appealing the FMRA award. However, DHCR did not issue its order denying the PAR until January 1997. At no time was a lien recorded against the building in connection with this award. In 1995, while the PAR was pending, Dobro transferred the building to 142 East 27th Street Associates (Associates). Approximately a month after the PAR was denied, Associates conveyed the building to the present owner without providing notice of the FMRA award. Neither Dobro nor Associates refunded or credited any of the excess rent due to plaintiffs as directed by DHCR.

Plaintiffs then commenced this plenary action in December 1998 against the current owner and its managing agent (27 Realty), as well as Associates, its managing agent and individual partners, to collect a money judgment in the amount of the FMRA award with interest and attorneys’ fees. 27 Realty moved for summary judgment dismissing the complaint against it on the ground that it was not a party to the FMRA and thus as a matter of law could not be held liable for the excess rent. Plaintiffs asked Supreme Court to search the record and grant summary judgment in their favor.

Supreme Court denied 27 Realty’s motion and determined that, although plaintiffs established their entitlement to recover the excess rents from 27 Realty, they were not entitled to summary judgment at that time since 27 Realty would likely prevail on their cross claims against Associates at trial. The Appellate Division modified by granting plaintiffs summary judgment against 27 Realty on the issue of liability for the FMRA award and attorneys’ fees, and remanding for additional proceedings. The Court found plaintiffs were entitled to summary judgment because “a current successor landlord is generally liable for overcharges collected by a predecessor landlord ...” (282 AD2d 275, 275 [2001]). In addition, the Court found that 27 Realty could have avoided liability through the exercise of due diligence. On remand, Supreme Court determined that plaintiffs were entitled to the FMRA award with interest, attorneys’ fees, costs and disbursements and entered a judgment in the amount of $95,158.90. We now reverse.

Discussion

Two types of DHCR proceedings are relevant to this appeal— fair market rent appeals and rent overcharge cases. A fair market rent appeal to determine the proper initial rent is generally available only to the first tenant to occupy the premises as of April 1, 1984, and is governed by section 2522.3 of the Rent Stabilization Code (9 NYCRR). A rent overcharge case, governed by section 2526.1 of the Rent Stabilization Code, is not limited to the first tenant and is brought to recover rents charged by owners that exceed the legal regulated rent. Here, plaintiffs, as the first tenants after the apartment became rent stabilized, properly brought an FMRA proceeding.

The Rent Stabilization Code allows for “an appeal of the initial rent on the ground that it exceeds the fair market rent for the housing accommodation” (9 NYCRR 2522.3 [a]). The section further provides that when an appeal has been decided, “[t]he order shall direct the affected owner to make the refund of any excess rent to the tenant . . . and to the extent the present owner is liable for all or any part of the refund, such present owner may credit such refund against future rents ...” (Rent Stabilization Code [9 NYCRR] § 2522.3 [d] [1] [emphasis added]). The language of the provision does not direct, or even create a presumption, that the current owner will be liable for the entire FMRA.

In Polanco v Higgins (175 AD2d 729 [1st Dept 1991]), the Appellate Division determined that a DHCR decision to apportion liability for an FMRA between current and former owners was irrational where the current owner was aware of the FMRA and had submitted an answer in the proceeding. In response to that decision, DHCR issued Policy Statement 93-1 concerning a current owner’s liability for excess rent determined by an FMRA (see DHCR Policy Statement 93-1, issued Aug. 20, 1993, reissued July 1995). The Policy Statement lists the three situations in which a current owner will be deemed a party to an FMRA: (1) if the current owner was served with a copy of the FMRA by DHCR and had a chance to submit an answer, (2) if the current owner actually answered, or (3) if the current owner failed to provide DHCR with notice of the change of ownership and DHCR sends a copy of the FMRA to the previous owner (see DHCR Policy Statement 93-1). The Policy Statement “modifie[d] DHCR’s prior practice of ordering the current owner to refund only the excess rent that the current owner actually collected” (DHCR Policy Statement 93-1). As a result, current owners who had an opportunity to participate in the FMRA process are subject to joint and several liability for excess rents charged by previous owners (see DHCR Policy Statement 93-1).

Here, 27 Realty did not have an opportunity to participate in the FMRA. The current owner purchased the property a month after the PAR was decided and was apparently unaware of the existence of the FMRA award. Nor was the FMRA award reduced to judgment—in which case a lien could have been filed that would have appeared on a title search. Further, 27 Realty has charged plaintiffs rent at the legal rate and has not collected any excess rent. Thus, there is no basis under either the Rent Stabilization Code or DHCR policy for holding 27 Realty liable for the excess rent charged by previous owners. Additionally, a purchaser does not have a statutory obligation of due diligence to investigate the potential existence of FMRA awards.

Contrary to plaintiffs’ argument, cases such as Matter of Gaines v New York State Div. of Hous. & Community Renewal (90 NY2d 545 [1997]) are inapposite. Gaines addressed a current owner’s liability for rent overcharges by previous owners, which is governed by section 2526.1 of the Rent Stabilization Code, rather than section 2522.3—the FMRA provision. Section 2526.1 provides that “[f]or overcharge complaints filed or overcharges collected on or after April 1, 1984, a current owner shall be responsible for all overcharge penalties, including penalties based upon overcharges collected by any prior owner” (9 NYCRR 2526.1 [f] [2] [i]). However, the rent overcharge section also specifically states that “[t]he provisions of this section shall not apply to a proceeding pursuant to section 2522.3 of this Title” (9 NYCRR 2526.1 [g]). The Code clearly imposes a different and much greater level of liability upon a current owner in the context of rent overcharges—that of total liability for the overcharges of a predecessor landlord—than in the context of FMRAs. The two concepts should not be combined to impose liability upon 27 Realty in the situation presented here.

Plaintiffs also argue that since this is a plenary action, rather than a DHCR proceeding, liability should be imposed upon 27 Realty because they were parties to the proceeding by virtue of the concept of privity and successors in interest to Dobro and Associates. Plaintiffs, however, offer no support for the proposition that merely commencing a plenary action can subject a party to liability that the party would not otherwise face in an FMRA proceeding before the DHCR. Under the Rent Stabilization Code and DHCR policy, a current owner who did not have an opportunity to participate in the proceedings is not liable for an FMRA award for excess rents charged by prior owners, and a tenant cannot enforce nonexistent liability against the successor owner in a plenary action.

Finally, there is no evidence that the transfers here were anything other than arm’s length transactions or that they were entered into for the purpose of evading liability for excess rent charges. No fraud cause of action was pleaded. Plaintiffs simply sought to enforce the DHCR award against a current owner not a party to the FMRA proceeding. That 27 Realty took title before the running of the statute of limitations for a CPLR article 78 proceeding is also of no import. For liability to attach, the current owner had to have an opportunity to participate in the FMRA process; 27 Realty had no such opportunity.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the appellants’ motion for summary judgment dismissing the complaint should be granted.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.

      . It is lamentable that the DHCR process from the initial filing of the FMRA to the conclusion of the PAR took six years, especially where plaintiffs prevailed, at least in part, because the landlord failed to submit the appropriate rental comparability data.

      . The parties entered into a stipulation in February 2003 discontinuing any and all claims and cross claims against Associates.

      . At the time of commencement of this proceeding, the May 1987 versions of both 9 NYCRR 2522.3 and 9 NYCRR 2526.1 were in effect. Both provisions were amended December 20, 2000.


author: G.B. Smith, J.

text:
    [803 NE2d 361, 771 NYS2d 40]
    Stop-The-Barge, by Its President Kathleen Gilrain, et al., Appellants, v John P. Cahill, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
    Argued October 15, 2003;
    decided December 2, 2003

      POINTS OF COUNSEL

      Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany (Douglas H. Ward and Jeffrey S. Baker of counsel), for appellants.
    Appellants’ State Environmental Quality Review Act claims are timely because they were brought within the time to challenge the first final substantive approval of the project—issuance of the Department of Environmental Conservation air permit. (Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920, 93 NY2d 815; Matter of PVS Chems. v New York State Dept. of Envtl. Conservation, 256 AD2d 1241; Matter of Young v Board of Trustees of Vil. of Blasdell, 221 AD2d 975, 89 NY2d 846; Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 92 AD2d 897, 59 NY2d 999; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 83 AD2d 741; Ecology Action v Van Cort, 99 Misc 2d 664; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Matter of Essex County v Zagata, 91 NY2d 447; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 479 US 985; Matter of Haggerty v Planning Bd. of Town of Sand Lake, 166 AD2d 791, 79 NY2d 784.)

      Eliot Spitzer, Attorney General, Albany (Joseph Koczaja, Caitlin J. Halligan, Daniel Smirlock, Peter H. Schiff and Lisa M. Burianek of counsel), for John P. Cahill and another, respondents.
    The negative declaration did not start the running of any statute of limitations. (Matter of Essex County v Zagata, 91 NY2d 447; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 479 US 985; Matter of Zagata v Freshwater Wetland Appeals Bd., 244 AD2d 343, 91 NY2d 813, 95 NY2d 792; Matter of Ogden Citizens for Responsible Land Use v Planning Bd. of Town of Ogden, 224 AD2d 921; Matter of Group for S. Fork v Wines, 190 AD2d 794; Matter of Haggerty v Planning Bd. of Town of Sand Lake, 166 AD2d 791, 79 NY2d 784; Matter of City

      of Schenectady v Flacke, 100 AD2d 349, 63 NY2d 603; Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 92 AD2d 897, 59 NY2d 999; Matter of Gordon v Rush, 100 NY2d 236; Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920, 93 NY2d 815.)

      Michael A. Cardozo, Corporation Counsel, New York City (Grace Goodman and Larry A. Sonnenshein of counsel), for New York City Department of Environmental Protection, respondent.
    Appellants’ challenge to the State Environmental Quality Review Act (SEQRA) review conducted by the Department of Environmental Protection (DEP) as lead agency was untimely, since it was not brought within four months after DEP issued the negative declaration which was the final step in its SEQRA review process. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846; Matter of Monteiro v Town of Colonie, 158 AD2d 246; Matter of Village of Wesbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of Cathedral Church of St. John Divine v Dormitory Auth. of State of N.Y., 224 AD2d 95, 89 NY2d 802; Matter of Wertheim v Albertson Water Dist., 207 AD2d 896; Matter of Mule v Hawthorne Cedar Knolls Union Free School Dist., 290 AD2d 698; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 479 US 985; Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920, 93 NY2d 815.)

      Cohen, Dax & Koenig, P.C., Albany (John W. Dax and Susan L. Taylor of counsel), for NYC Energy LLC, respondent.
    I. Stop-The-Barge’s CPLR article 78 petition was untimely pursuant to CPLR 217. (Matter of Essex County v Zagata, 91 NY2d 447; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; Matter of Monteiro v Town of Colonie, 158 AD2d 246; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Matter of Gordon v Rush, 100 NY2d 236; Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920, 93 NY2d 815; Matter of Young v Board of Trustees of Vil. of Blasdell, 221 AD2d 975, 89 NY2d 846; Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 92 AD2d 897, 59 NY2d 999; Matter of McNeill v Town Bd. of Town of Ithaca, 260 AD2d 829, 93 NY2d 812; Matter of City of Saratoga Springs v Zoning Bd. of Appeals of Town of Wilton, 279 AD2d 756.) II. Appellant’s claims were untimely pursuant to the special statute of limitations applicable to air permit challenges. (People v Mobil Oil Corp., 48 NY2d 192; Matter of Brown v Wing, 93 NY2d 517; People v Jeanty, 94 NY2d 507; People v Lawrence, 64 NY2d 200; Ling Ling Yung v County of Nassau, 77 NY2d 568; Matter of MacDonald v Reid, 85 Misc 2d 291.)
   OPINION OF THE COURT

G.B. Smith, J.

In this CPLR article 78 proceeding where petitioners seek to set aside action taken by the New York State Department of Environmental Conservation (DEC) and the New York City Department of Environmental Protection (DEP), we must determine which agency action triggers the statute of limitations. Like the Appellate Division, we conclude that on these facts the statute of limitations began to run when the conditioned negative declaration (CND) issued by DEP became final.

In the fall of 1996, the predecessor of respondent New York City Energy (NYCE) submitted an environmental assessment statement to DEP in order to obtain permits to install a power generator on a floating barge in Brooklyn, New York. The barge was to be anchored on the west side of the Wallabout Channel at the Brooklyn Navy Yard. Upon receipt of the statement, DEP became the lead agency for purposes of conducting a coordinated environmental review of the project pursuant to the State Environmental Quality Review Act (SEQRA). In August 1997, DEP issued the first of three CND’s, concluding that the project posed no significant adverse impact to the environment and therefore required no environmental impact statement. Following subsequent project modifications, DEP issued two revised CND’s, the last on January 10, 2000. On January 19, 2000, the declaration was published for a 30-day public comment period as required by 6 NYCRR 617.7 (d) (1) (iv). During that period, petitioners offered no comments regarding the CND. The declaration became final on February 18, 2000, thereby concluding SEQRA review of the proposed project.

Simultaneously, when NYCE further modified the proposal in 1999, NYCE applied to the DEC for an air permit pursuant to Environmental Conservation Law article 19. DEC determined that the impacts of air emissions from the proposed facility would not contravene the standards imposed by the Environmental Protection Agency and on August 9, 2000, tentatively approved an air permit for the facility. Following this tentative determination, DEC issued a public notice stating that it would accept public comment for a 30-day period, to end on September 8, 2000. Given public opposition to the proposal, DEC held a legislative hearing on December 12, 2000. Petitioners and others submitted extensive written objections to the proposal on grounds of inadequate SEQRA review. DEC determined that an adjudicatory hearing was unnecessary and, on December 18, 2000, issued an air permit for NYCE’s facility.

On February 20, 2001—one year after the CND became final, and two months after the air permit was issued—petitioners commenced this CPLR article 78 proceeding contending that the DEP’s issuance of the CND and DEC’S issuance of the air permit were arbitrary and capricious in violation of SEQRA, ECL 3-0301, and ECL article 19. Respondents moved to dismiss the petition as time-barred.

DEC claimed the challenge to the air permit—issued on December 18, 2000—was time-barred under ECL 19-0511 (2) (b) because the agency was not served within two months after the air permit was issued. DEP argued that the challenge to the CND—issued on January 10, 2000—was time-barred under CPLR 217 (1) because the action was not brought within four months after the CND was issued. NYCE answered and sought dismissal under both statutes of limitations.

Supreme Court dismissed the action as time-barred, concluding that ECL 19-0511 (2) (b) barred petitioners’ challenges because they failed to serve respondents within two months of the issuance of the air permit—the final agency action. The court held that the project could not have had any effect on the environment until the air permit was issued, and therefore petitioners did not sustain an actual injury until the issuance of the air permit. The Appellate Division modified, applying the four-month statute of limitations in CPLR 217 (1), not the two-month statute of limitations in ECL 19-0511 (2) (b). In the Appellate Division’s view, the action against DEC challenging the air permit was timely because petitioners commenced the proceeding on February 20, 2001—within four months of DEC’S determination on December 18, 2000. The Appellate Division, however, upheld dismissal of the suit against DEP challenging the issuance of the CND, holding that the issuance of the CND was a final agency action triggering the statute of limitations.

On this appeal, petitioners as well as respondent DEC argue that the four-month period of limitations commenced on December 18, 2000, when DEC issued the air permit. Petitioners and DEC claim that the CND was merely a preliminary step in the decisionmaking process and that no sufficient predicate for judicial review existed until a permit or approval was issued for the project. DEP and NYCE argue that the period of limitations began to run when the CND was issued, or at the latest, when the 30-day comment period after issuance of the declaration was complete.

We agree with DER NYCE and the Appellate Division that under the circumstances presented here, the CND was a final agency action for purposes of judicial review of petitioners’ SE-QRA claim.

In Matter of Essex County v Zagata, we concluded that an agency action is final when the decisionmaker arrives at a “definitive position on the issue that inflicts an actual, concrete injury” (91 NY2d 447, 453 [1998]). We stated:

“[A] determination will not be deemed final because it stands as the agency’s last word on a discrete legal issue that arises during an administrative proceeding. There must additionally be a finding that the injury purportedly inflicted by the agency may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. If further agency proceedings might render the disputed issue moot or academic, then the agency position cannot be considered definitive or the injury actual or concrete” (id. at 453-454 [internal quotation marks and citations omitted]; see also Matter of Gordon v Rush, 100 NY2d 236, 242-243 [2003]).

Here, the agency reached a definitive position on February 18, 2000, when the public comment period ended, because, at that point, its SEQRA review ended. DEP conducted no further SE-QRA investigation, and issued no further SEQRA declaration on the project. Petitioners had an opportunity to comment but failed to alert DEP to the concerns they subsequently raised with regard to the SEQRA review. Thus, to the extent that petitioners challenge the conclusions reached by DEP from its SEQRA review, the period of limitations must be measured at the latest from the time that the CND became final, on February 18, 2000. Additionally, the issuance of the CND resulted in actual concrete injury to petitioners because the declaration essentially gave the developer the ability to proceed with the project without the need to prepare an environmental impact statement.

Moreover, to allow petitioners to postpone their challenge to the CND until the issuance of the air permit would be particularly unreasonable here, since the declaration had been final for 10 months before the permit was issued. Given these circumstances, commencing the period of limitations from the finality of the CND is consistent with the policy of resolving environmental issues and determining whether an environmental impact statement will be required at the early stages of project planning (see e.g. Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608 [1991]).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

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

Order, insofar as appealed from, affirmed, with costs.


author: CIPARICK, J.

text:
    [803 NE2d 370, 771 NYS2d 49]
    The People of the State of New York, Respondent, v Bruce Biggs, Appellant.
    Argued October 22, 2003;
    decided December 2, 2003

      POINTS OF COUNSEL

      Reyna E. Marder, New York City, Lynn W.L. Fahey and Barry S. Stendig for appellant.
    Defendant’s prosecution for the lesser included offense of intentional manslaughter violated the federal and state prohibition against double jeopardy when intentional murder counts had been dismissed for insufficiency at a prior trial. (Burks v United States, 437 US 1; Hudson v Louisiana, 450 US 40; People v Mayo, 48 NY2d 245; Sanabria v United States, 437 US 54; Blockburger v United States, 284 US 299; People v Wood, 95 NY2d 509; North Carolina v Pearce, 395 US 711; People v Glover, 57 NY2d 61; Brown v Ohio, 432 US 161; People v Owens, 227 AD2d 256.)

      Charles J. Hynes, District Attorney, Brooklyn (Victor Barall and Leonard Joblove of counsel), for respondent.
    Defendant’s prosecution for two counts of manslaughter in the first degree at his second trial did not deprive him of his constitutional double jeopardy rights. Moreover, defendant’s statutory double jeopardy claim is unpreserved for appellate review and without merit. (People v Latham, 83 NY2d 233; People v P.J. Video, 68 NY2d 296; Green v United States, 355 US 184; United States v DiFrancesco, 449 US 117; North Carolina v Pearce, 395 US 711; Arizona v Washington, 434 US 497; Matter of Davis v Brown, 87 NY2d 626; United States v Martin Linen Supply Co., 430 US 564; People v Prescott, 66 NY2d 216, 475 US 1150; Sanabria v United States, 437 US 54.)
   OPINION OF THE COURT

CIPARICK, J.

This appeal presents two questions for our review. The threshold question is whether Supreme Court’s withdrawal of the intentional murder counts from the jury’s consideration on the ground that there was insufficient evidence to support those charges constituted an acquittal for purposes of the Double Jeopardy Clauses of both the Federal and New York State Constitutions (US Const 5th Amend; NY Const, art I, § 6). If so, we turn to whether first degree manslaughter is the same offense as intentional murder for constitutional double jeopardy purposes such that an acquittal of the greater offense precludes further prosecution for the lesser offense. We conclude that defendant was acquitted of the intentional murder charges, and that his subsequent prosecution for manslaughter in the first degree violated the Double Jeopardy Clauses of the Federal and State Constitutions.

In February 1999, defendant shot and killed two people, an adult male and a 14-year-old female. The original indictment charged defendant with two counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]), four counts of murder in the second degree—consisting of two counts of intentional murder and two counts of depraved indifference murder—(Penal Law § 125.25 [1], [2]), and one count of criminal possession of a weapon in the second and third degrees (Penal Law § 265.03 [2]; § 265.02 [4]). Before the case was submitted to the jury, the court repeatedly advised the parties that there was insufficient evidence of intentional murder. For example, at a preliminary charge conference before the close of the People’s proof, the Judge informed the parties that he did not intend to submit the counts of intentional murder to the jury, stating “[t]here’s no evidence for me [to] submit to the jury that the defendant intended to kill these two people . . . [s]o I don’t believe there is evidence to support intentional murder[ ] in a case where two individuals were randomly shot and killed.” When the People attempted to argue at a later charge conference that the jury should be permitted to consider intentional murder, the Judge indicated that he had previously ruled on the matter, that there was insufficient evidence to support intentional murder and that the evidence was consistent with a depraved act. The only charges submitted, to the jury were two counts of second degree depraved indifference murder (Penal Law § 125.25 [2]) and two counts of second degree manslaughter (Penal Law § 125.15 [1]) as a lesser included offense. The defendant did not move to dismiss the intentional murder charges at any point.

After two and a half days’ deliberation, the jury found the defendant not guilty of the murder charges, but was unable to reach a verdict on the manslaughter charges. While the jury deliberated, the Judge discussed the options with counsel, including the possibility that defendant enter into a plea agreement. The court advised defendant that he could never be retried for murder, but that he could be retried for the manslaughter charges and face sentence exposure consistent with the maximum for a second violent felony offender guilty of second degree manslaughter. Defendant did not accept the plea, and at defense counsel’s request the Judge gave the jury an Allen charge. After further deliberation, the jury was still unable to reach a verdict on the second degree manslaughter charges and the Judge declared a mistrial.

Defendant was subsequently indicted for two counts of manslaughter in the first degree (Penal Law § 125.20 [1]) and two counts of manslaughter in the second degree. He moved to dismiss the second indictment arguing that it was unauthorized under CPL 310.70 and that double jeopardy precluded his retrial for first degree manslaughter as a lesser included offense of intentional second degree murder. Supreme Court denied defendant’s motion to dismiss, finding that the evidence was legally sufficient to support the charges in the second indictment and, specifically, that the indictment for manslaughter in the first degree was proper, as that charge was not considered by the first jury or contained in the original indictment.

After a second jury trial, defendant was convicted of two counts of manslaughter in the first degree. The jury had been advised not to consider manslaughter in the second degree if they returned a guilty verdict of manslaughter in the first degree. The Appellate Division affirmed, finding that double jeopardy did not prevent defendant from being tried for first degree manslaughter (298 AD2d 398 [2002]). We now reverse.

Analysis

The Double Jeopardy Clause contains three separate guarantees: First, “[i]t protects against a second prosecution for the same offense after acquittal. [Second,] [i]t protects against a second prosecution for the same offense after conviction. And [third] it protects against multiple punishments for the same offense” (North Carolina v Pearce, 395 US 711, 717 [1969] [footnotes omitted], overruled in part on other grounds Alabama v Smith, 490 US 794 [1989]). The case before us falls within the first category as defendant alleges it involves an acquittal and a second prosecution for the same offense.

First, we need to examine whether the defendant was acquitted of the intentional murder charges. It is settled that dismissal of a count due to insufficient evidence is tantamount to an acquittal for purposes of double jeopardy and protects a defendant against additional prosecution for such count (see Smalis v Pennsylvania, 476 US 140, 142 [1986]; Burks v United States, 437 US 1, 18 [1978]; People v Mayo, 48 NY2d 245, 249 [1979]). Here, defendant never sought a trial order of dismissal. Nor did the Judge specifically state that he was dismissing the counts. However, “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action. . . . Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged” (United States v Martin Linen Supply Co., 430 US 564, 571 [1977] [citations omitted]).

Under the facts of this case, Supreme Court clearly dismissed the intentional murder counts due to insufficient evidence. The Judge repeatedly stated that the intentional murder count was unsupportable. It was also apparent from the colloquy while the jury was deadlocked that the parties believed the intentional murder charges had been dismissed and that defendant could only be prosecuted for second degree manslaughter in any subsequent indictment. It is unquestionably the better practice for defense counsel to move for a trial order of dismissal when the People have rested or at the close of proof {see CPL 290.10). However, under these facts and circumstances, the Judge’s decision not to submit the intentional murder counts to the jury was a dismissal of the charges for insufficient evidence constituting a resolution of those charges, and thus the equivalent of an acquittal for double jeopardy purposes.

Since the defendant was acquitted of intentional murder, we next must determine whether first degree manslaughter is the same offense as second degree murder for double jeopardy purposes, so that his acquittal of the murder charges barred subsequent prosecution for first degree manslaughter. The Double Jeopardy Clause precludes consecutive prosecutions for greater and lesser included offenses where, “the lesser offense . . . requires no proof beyond that which is required for conviction of the greater” (see Brown v Ohio, 432 US 161, 168 [1977]; People v Wood, 95 NY2d 509, 514 [2000]). “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not” (Blockburger v United States, 284 US 299, 304 [1932] [citations omitted]).

A person is guilty of second degree murder when “[w]ith intent to cause the death of another person, he causes the death of such person or of a third person” (Penal Law § 125.25 [1]). First degree manslaughter is established when “[w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person” (Penal Law § 125.20 [l]).

Under the Blockburger test, these two crimes are the “same” offense. If second degree intentional murder has been proven, there is no additional fact that must be shown to establish first degree manslaughter. There can be no doubt that it is impossible to intend to kill a person without simultaneously intending to seriously physically injure that person. Thus, the lesser offense does not require any proof beyond that required to sustain a conviction of the greater offense. “The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it” (Brown, 432 US at 168 [holding that joyriding and auto theft were the “same” offense for double jeopardy purposes where joyriding required no proof beyond that necessary to establish auto theft]). For double jeopardy purposes, intentional murder in the second degree and manslaughter in the first degree should be considered the same offense as no additional element of proof is required to sustain a conviction of first degree manslaughter beyond that which is required for second degree murder.

Consequently, since defendant was acquitted of the intentional murder charges at his first trial, and manslaughter in the first degree is the same offense as murder in the second degree under Blockburger, the Double Jeopardy Clauses of both the Federal and State Constitutions precluded defendant’s subsequent indictment and prosecution for first degree manslaughter.

Although a defendant’s state and federal constitutional double jeopardy claims are reviewable even when they are not properly preserved below (see People v Michael, 48 NY2d 1, 7 [1979]), the same is not true of a statutory double jeopardy claim under Criminal Procedure Law § 40.20 (2). “A statutory claim that one may not be separately prosecuted for two offenses based on the same act or criminal transaction . . . must be duly preserved if there is to be appellate review” (People v Dodson, 48 NY2d 36, 38 [1979]; see also People v Gonzalez, 99 NY2d 76, 82-83 [2002] [holding that a constitutional double jeopardy claim as to whether multiple punishments for the same offense were appropriate was a statutory interpretation question that must be preserved for review]). Here, contrary to defendant’s contention, the statutory double jeopardy claim under CPL 40.20 (2) was not adequately preserved for our review.

The parties’ remaining contentions are without merit.

Accordingly, the order of the Appellate Division should be reversed, the counts of the indictment charging defendant with manslaughter in the first degree dismissed and a new trial ordered on the counts of the indictment charging defendant with manslaughter in the second degree.

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

Order reversed, etc.

      . Although defendant was acquitted of both first degree intentional murder and second degree intentional murder, for the purposes of this appeal we address only whether first degree manslaughter is the same offense as second degree intentional murder.

      . Serious physical injury is further defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00 [10]).


author: Read, J.

text:
    [803 NE2d 364, 771 NYS2d 43]
    In the Matter of Denise M. Theroux et al., Appellants, v Edward Reilly, as Nassau County Sheriff, et al., Respondents. In the Matter of David Wagman, Appellant, v John A. Kapica, as Chief of the Town of Greenburgh Police Department, et al., Respondents. In the Matter of Loren S. James, Appellant, v County of Yates Sheriff’s Department et al., Respondents.
    Argued October 22, 2003;
    decided December 2, 2003

      POINTS OF COUNSEL

      Certilman Balin Adler & Hyman, East Meadow (Wayne J. Schaefer of counsel), for appellants in the first above-entitled proceeding.
    I. Since petitioners were injured in the performance of their respective duties, the court below erred when it held that respondents’ denial of General Municipal Law § 207-c benefits was not arbitrary and capricious, an abuse of discretion or affected by error of law. (Matter of Curley v Dilworth, 96 AD2d 903; Matter of Mashnouk v Miles, 55 NY2d 80; Matter of Collins v City of Yonkers, 207 AD2d 830; Matter of Crawford v Sheriff's Dept., Putnam County, 152 AD2d 382, 76 NY2d 704; Glasser v Price, 35 AD2d 98; Matter of Laudico v Netzel, 254 AD2d 811; Matter of White v County of Cortland, 97 NY2d 336; Matter of Clements v Panzarella, 297 AD2d 4; Santangelo v State of New York, 71 NY2d 393; Cooper v City of New York, 81 NY2d 584.) II. The holding of this Court in Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) did not alter the requirements for obtaining General Municipal Law § 207-c benefits. (Matter of Crawford v Sheriff’s Dept., Putnam County, 152 AD2d 382.) III. The remedial purpose of General Municipal Law § 207-c would be contravened by the ambiguous and subjective “heightened risk and duties” standard relied on by the court below.

      Lorna B. Goodman, County Attorney, Mineola (Dennis J. Saffran and David B. Goldin of counsel), for respondents in the first above-entitled proceeding.
    I. Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) established a “heightened risks and duties” standard of eligibility for General Municipal Law § 207-c benefits, and the routine workplace injuries incurred by petitioners did not meet this standard. (Matter of Ertner v County of Chenango, 280 AD2d 851; Kaufman v Eli Lilly & Co., 65 NY2d 449; Ryan v New York Tel. Co., 62 NY2d 494; Matter of James v County of Yates Sheriff’s Dept., 300 AD2d 989; Matter of Clements v Panzarella, 297 AD2d 4; Matter of Bonkoski v Village of Suffern, 296 AD2d 404; Matter of Dobbertin v Town of Chester, 292 AD2d 382, 98 NY2d 605; Matter of Travison v County of Albany, 291 AD2d 705, 98 NY2d 605; Youngs v Village of Penn Yan, 291 AD2d 852; Matter of Sutherland v Village of Suffern, 289 AD2d 582, 97 NY2d 613.) II. Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) should not be overruled less than four years after it was handed down. (Eastern Consol. Props. v Adelaide Realty Corp., 95 NY2d 785; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842; City of Buffalo v Cargill, Inc., 44 NY2d 7; People v Hobson, 39 NY2d 479; People v Damiano, 87 NY2d 477; Burnet v Coronado Oil & Gas Co., 285 US 393; Planned Parenthood of Southeastern Pa. v Casey, 505 US 833; People v Bing, 76 NY2d 331; People v Bartolomeo, 53 NY2d 225.)

      Donna M.C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae, in the first above-entitled proceeding.
    I. The legislative history surrounding the enactment of General Municipal Law § 207-c and its amendments clearly warrants the limitation of its benefits to those law enforcement personnel injured or taken ill while performing the dangerous tasks for which they were hired. II. The statutory language of General Municipal Law § 207-c contemplates the granting of benefits only for injuries and illnesses incurred in the performance of the dangerous work which a police officer was hired to perform. (Matter of White v County of Cortland, 97 NY2d 336; Matter of DePoalo v County of Schenectady, 85 NY2d 527; Matter of Ramsden v Regan, 91 AD2d 773; Matter of Martinson v Regan, 176 AD2d 1121; Matter of Robinson v New York State & Local Police & Fire Retirement Sys., 192 AD2d 951; Matter of Curtis v New York State Comptroller, 281 AD2d 780.) III. The standard used to determine eligibility for General Municipal Law § 207-c benefits is neither ambiguous nor subjective. (Jacobellis v Ohio, 378 US 184; Matter of Ertner v County of Chenango, 280 AD2d 851; Matter of Sutherland v Village of Suffern, 289 AD2d 582; Matter of Wynne v Town of Ramapo, 286 AD2d 338; Youngs v Village of Penn Yan, 291 AD2d 852; Matter of Travison v County of Albany, 291 AD2d 705; Matter of Sills v Livingston, 294 AD2d 922; Matter of Clements v Panzarella, 297 AD2d 4; Matter of Bonkoski v Village of Suffern, 296 AD2d 404.) IV This Court’s reference to heightened risk injuries as warranting an award of General Municipal Law § 207-c benefits was correct. (Matter of Balcerak v County of Nassau, 94 NY2d 253.)

      Richard A. Glickel, West Nyack, for Town of Clarkstown and others, amici curiae, in the first above-entitled proceeding.
    I. There is no entitlement to General Municipal Law § 207-c benefits for injuries not incurred in the performance of special work related to the nature of heightened risks and duties inherent to the covered employment. (Matter of DePoalo v County of Schenectady, 85 NY2d 527; Matter of Balcerak v County of Nassau, 94 NY2d 253; Matter of City of Watertown v State of New York Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Crawford v Sheriff’s Dept., Putnam County, 152 AD2d 382, 76 NY2d 704; Matter of Maresco v Rozzi, 162 AD2d 534; Matter of Fedorczak v Dolce, 202 AD2d 668; Matter of De John v Town of Frankfort, 209 AD2d 938; Matter of Hamilton v City of Schenectady, 210 AD2d 843; Matter of Furch v Bucci, 254 AD2d 642; Matter of Clements v Panzarella, 297 AD2d 4.) II. The court below correctly ruled that a rational basis existed for respondents’ administrative determinations denying appellants General Municipal Law § 207-c benefits. (Matter of Uniform Firefighters of Cohoes v City of Cohoes, 94 NY2d 686; Matter of DePoalo v County of Schenectady, 85 NY2d 527; Matter of City of Watertown v State of New York Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Balcerak v County of Nassau, 94 NY2d 253; Matter of Arrocha v Board of Educ., 93 NY2d 361; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Conlon v Commissioner of Civ. Serv. of County of Suffolk, 225 AD2d 766; Matter of Collins v City of Yonkers, 207 AD2d 830; Matter of Sutherland v Village of Suffern, 289 AD2d 582, 97 NY2d 613.)

      Freedman, Wagner, Tabakman & Weiss, New City (David MacRae Wagner of counsel), for appellant in the second above-entitled proceeding.
    I. It is highly unlikely that this Court intended to change over 40 years of substantive law, in a case involving only a procedural issue, without clearly expressing such intent. (Matter of Balcerak v County of Nassau, 94 NY2d 253; Matter of White v County of Cortland, 97 NY2d 336; Matter of Mashnouk v Miles, 55 NY2d 80; Matter of Theroux v Reilly, 187 Misc 2d 723; Matter of James v County of Yates Sheriff s Dept., 300 AD2d 989.) II. Any police officer injured in the performance of his duties is entitled to General Municipal Law § 207-c benefits. (McCluskey v Cromwell, 11 NY 593; Matter of Theroux v Reilly, 187 Misc 2d 723; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Matter of Laudico v Netzel, 254 AD2d 811; Pajak v Pajak, 56 NY2d 394.)

      Law Office of Vincent Toomey, Lake Success (Vincent Toomey and Christine A. Gaeta of counsel), for respondents in the second above-entitled proceeding.
    I. In Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]), this Court established that in order for police officers to be eligible for General Municipal Law § 207-c benefits, their injuries must have been incurred in the performance of special work related to the nature of heightened risks and duties. (Matter of Balcerak v County of Nassau, 94 NY2d 253; Matter of Sutka v Conners, 73 NY2d 395; Matter of Clements v Panzarella, 297 AD2d 4; Matter of Theroux v Reilly, 187 Misc 2d 723, 297 AD2d 384, 99 NY2d 503; Matter of White v County of Cortland, 97 NY2d 336; Matter of Gallante v Reilly, 303 AD2d 503; Matter of Schafer v Reilly, 302 AD2d 394; Matter of James v County of Yates Sheriffs Dept., 300 AD2d 989, 100 NY2d 504; Matter of Stalter v Scarpato, 297 AD2d 382; Matter of Bonkoski v Village of Suffern, 296 AD2d 404.) II. The court below properly applied the eligibility standard for General Municipal Law § 207-c benefits set forth by this Court in Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) to correctly hold that the administrative determination denying petitioner General Municipal Law § 207-c benefits was not arbitrary or capricious. (Matter of White v County of Cortland, 97 NY2d 336.)

      Trevett, Lenweaver & Salzer, P.C., Rochester {Katherine Pic-cola and Lawrence J. Andolina of counsel), for appellant in the third above-entitled proceeding.
    I. Deputy James is entitled to General Municipal Law § 207-c benefits because he was injured while in the performance of special work related to the nature of heightened risks and duties unique to the criminal justice process. (Matter of Dobbertin v Town of Chester, 292 AD2d 382, 98 NY2d 605; Brady v City of New Rochelle, 296 AD2d 365; Matter of Balcerak v County of Nassau, 94 NY2d 253; Matter of Ertner v County of Chenango, 280 AD2d 851; Matter of Dembowski v Hanna, 245 AD2d 1039, 91 NY2d 813; Matter of Geremski v Department of Fire of City of Syracuse, 72 Misc 2d 166, 42 AD2d 1050, 33 NY2d 521; Matter of Theroux v Reilly, 297 AD2d 384; Matter of Wagman v Kapcia, 300 AD2d 406; Matter of Clements v Panzarella, 297 AD2d 4; Matter of Bonkoski v Village of Suffern, 296 AD2d 404.) II. General Municipal Law § 207-c benefits are not contingent upon the alleged heightened risks and duties standard. (Matter of Theroux v Reilly, 297 AD2d 384, 99 NY2d 503; McCluskey v Cromwell, 11 NY 593; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Matter of White v County of Nassau, 97 NY2d 336; Matter of Curley v Dilworth, 96 AD2d 903, 63 NY2d 770; Matter of Laudico v Netzel, 254 AD2d 811; People v Bryant, 92 NY2d 216; Matter of Mashnouk v Miles, 55 NY2d 80; Matter of Balcerak v County of Nassau, 274 AD2d 580; Matter of Dobbertin v Town of Chester, 292 AD2d 382.)

      Hancock & Estabrook, LLP, Syracuse {Janet D. Callahan and John F. Corcoran of counsel), for respondents in the third above-entitled proceeding.
    I. The “heightened risks and duties” standard of Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) is consistent with both the letter and spirit of General Municipal Law § 207-c. (Matter of DePoalo v County of Schenectady, 85 NY2d 527; Matter of Clements v Panzarella, 297 AD2d 4; Matter of White v County of Cortland, 97 NY2d 336;
      Matter of Laudico v Netzel, 254 AD2d 811.) II. Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) established a “heightened risks and duties” standard for entitlement to benefits under General Municipal Law § 207-c and petitioner did not meet that standard. (Matter of White v County of Cortland, 97 NY2d 336; Matter of Clements v Panzarella, 297 AD2d 4; Matter of Stalter v Scarpato, 297 AD2d 382; Matter of Bonkoski v Village of Suffern, 296 AD2d 404; Matter of Sills v Livingston, 294 AD2d 922; Matter of Travison v County of Albany, 291 AD2d 705, 98 NY2d 605; Matter of Sutherland v Village of Suffern, 289 AD2d 582, 97 NY2d 613; Matter of Dobbertin v Town of Chester, 292 AD2d 382, 98 NY2d 605; Youngs v Village of Penn Yan, 291 AD2d 852.)

      Law Office of James B. Tuttle, Albany {James B. Tuttle of counsel), for Police Conference of New York, Inc., amicus curiae, in the three above-entitled proceedings.
    There is no legal requirement that a police officer be injured while engaged in duties specifically involving “heightened risks” in order to receive benefits under section 207-c of the General Municipal Law. (Matter of Crawford v Sheriff’s Dept., Putnam County, 152 AD2d 382; Matter of Curley v Dilworth, 96 AD2d 903; Matter of Ross v Town Bd. of Town of Ramapo, 78 AD2d 656; Matter of De John v Town of Frankfort, 209 AD2d 938; Matter of Maresco v Rozzi, 162 AD2d 534; Youngs v Village of Penn Yan, 180 Misc 2d 190; Matter of Fedorczak v Dolce, 202 AD2d 668; Langdon v WEN Mgt. Co., 147 AD2d 450; Lee v Jones, 230 AD2d 435.)

      Gleason, Dunn, Walsh & O’Shea, Albany {Ronald G. Dunn and Michael K. Barrett of counsel), for New York State Deputies Association, Inc., amicus curiae, in the three above-entitled proceedings.
    I. Lower courts have improperly interpreted the dicta in Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) as creating a new higher standard for the administration of General Municipal Law § 207-c benefits. (Matter of Bonkoski v Village of Suffern, 296 AD2d 404; Matter of Travison v County of Albany, 291 AD2d 705; Matter of Sills v Livingston, 294 AD2d 922; Youngs v Village of Penn Yan, 291 AD2d 852; Matter of Stalter v Scarpato, 297 AD2d 382; Matter of Clements v Panzarella, 297 AD2d 4; Matter of Sutherland v Village of Suffern, 289 AD2d 582; Matter of Ertner v County of Chenango, 280 AD2d 851; Bright Homes v Wright, 8 NY2d 157; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357.) II. Injury or illness while performing official duties is the only requirement for General Municipal Law § 207-c benefits. (Matter of Balcerak v

      County of Nassau, 94 NY2d 253; People v Bryant, 92 NY2d 216.) III. Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) should be rectified in light of Matter of White v County of Cortland (97 NY2d 336 [2002]). (Fasanaro v County of Rockland, 166 Misc 2d 152, 237 AD2d 436, 90 NY2d 913; Matter of Meyers v Loughren, 228 AD2d 927; Glens Falls Portland Cement Co. v Van Wirt Constr. Co., 132 Misc 95; Harbeck v Pupin, 123 NY 115; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21, 8 NY2d 918; Matter of Uniform Firefighters of Cohoes v City of Cohoes, 258 AD2d 24; Matter of Mashnouk v Miles, 55 NY2d 80.) IV Decisions prior to Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]) established a bright-line test for granting benefits under the statute. (Fasanaro v County of Rockland, 166 Misc 2d 152.)
   OPINION OF THE COURT

Read, J.

At issue in this appeal is whether eligibility for benefits under General Municipal Law § 207-c is contingent upon the municipal employee’s demonstrating an injury sustained in the performance of special work related to the heightened risks and duties inherent in law enforcement. We conclude that section 207-c does not require such a “heightened risk” standard.

I.

Originally enacted in 1961, General Municipal Law § 207-c provides for the payment of the full amount of regular salary or wages to a police officer or other covered municipal employee who is injured “in the performance of his duties” or is taken ill “as a result of the performance of his duties” (§ 207-c [1]). These payments continue until the disability has ceased, or the disabled employee is granted a disability retirement. The payments stop if the employee either performs, or refuses to perform, light-duty work. The municipality is also liable for all medical treatment and hospital care necessitated by the injury or illness. Payments for these medical expenses continue after the employee’s retirement, and are bestowed in addition to any retirement allowance or pension.

When interpreting a statute, we turn first to the text as the best evidence of the Legislature’s intent. “As a general rule, unambiguous language of a statute is alone determinative” (Riley v County of Broome, 95 NY2d 455, 463 [2000] [citation omitted]). Here, the text does not suggest any legislative intent to create a “heightened risk” standard. Section 207-c affords eligibility to those covered municipal employees who are “injured in the performance of [their] duties,” not to those who are “injured in the performance of duties entailing the heightened risk of law enforcement,” or words to similar effect. If the Legislature had intended to restrict section 207-c eligibility to employees injured when performing specialized tasks, it easily could have and surely would have written the statute to say so. We may not create a limitation that the Legislature did not enact. Further, a statute’s plain meaning must be discerned “without resort to forced or unnatural interpretations” (Castro v United Container Mach. Group, 96 NY2d 398, 401 [2001], citing McKinney’s Cons Laws of NY, Book 1, Statutes § 232). Reading section 207-c in an unforced and natural manner, we conclude that the word “duties” encompasses the full range of a covered municipal employee’s job duties.

Our interpretation is consistent not only with the statute’s words, but also with legislative history. While repeatedly amending section 207-c to extend its benefits to additional classes of municipal employees, the Legislature routinely referred to the important, often dangerous and stressful, work these employees perform day in and day out. The Legislature thus pointed to “heightened risk” as the rationale for selecting additional classes of municipal employees for inclusion within section 207-c, not as the standard for determining eligibility for section 207-c benefits.

Finally, the Legislature enacted section 207-c to create parity between police officers and firefighters, who had been eligible for the same benefits since 1938 under General Municipal Law § 207-a and its predecessor (see L 1961, ch 920; L 1938, ch 562, § 1). While section 207-a served as the template for section 207-c, Governor Nelson A. Rockefeller approved the bill enacting section 207-c at a price of the Legislature’s fixing the “substantial problems” that had arisen in section 207-a’s administration (see Governor’s Mem approving L 1961, ch 920, 1961 McKinney’s Session Laws of NY, at 2141). Notably, these “substantial problems” did not include the standard for determining eligibility. Thus, sections 207-a and 207-c share the identical operative phrase regarding eligibility—“in the performance of his duties.”

There is every indication that municipalities have always awarded section 207-a benefits to firefighters without reference to whether the specific injury-causing activity was one entailing the “heightened risk” of firefighting (see e.g. Matter of Robida v Mirrington, 1 Misc 2d 968 [Sup Ct 1956] [firefighter injured while performing duties as master mechanic of the department]; Matter of Adam v Farbo, 16 Misc 2d 614 [Sup Ct 1959] [firefighter injured when he slipped during demonstration of new fire fighting technique]; Matter of Kirley v Department of Fire, City of Oneida, 138 AD2d 842 [3d Dept 1988] [firefighter injured when cleaning a firetruck]). Until very recently, municipalities seem to have likewise routinely awarded section 207-c benefits without regard to any “heightened risk” posed by the task that the employee was carrying out when injured (see e.g. O'Dette v Parton, 190 AD2d 1074, 1074 [4th Dept 1993] [deputy sheriff “was injured while on routine patrol in a sheriffs patrol vehicle”]); or the courts have thwarted municipalities seeking to impose this kind of limitation, regarding it as “ ‘out of harmony with the statute’ ” (Matter of Laudico v Netzel, 254 AD2d 811, 812 [4th Dept 1998] [citation omitted] [Court rejected municipality’s rule to limit section 207-c eligibility to injuries occurring “as a direct result of contact with an inmate”]). What dramatically altered this picture was our decision in Matter of Balcerak v County of Nassau (94 NY2d 253 [1999]), to which we now turn.

II.

In Balcerak, a Nassau County corrections officer applied for workers’ compensation and section 207-c benefits following his injury while driving home from a special assignment. The officer received workers’ compensation benefits, but the County denied him section 207-c benefits. The officer commenced an article 78 proceeding, arguing that he was entitled to section 207-c benefits because the County was bound, under collateral estoppel principles, by the Workers’ Compensation Board’s finding that he had been injured while on duty. We rejected his argument, noting that these two statutory benefit schemes “follow paths of differential interpretation and application” (Balcerak, 94 NY2d at 258). In fact, the Legislature chose different eligibility standards—“arising out of and in the course of employment” for workers’ compensation benefits; “in the performance of his duties” for section 207-c benefits (id. at 258-259).

We compared the legislative rationale for enacting the two different benefit regimes:

“General Municipal Law § 207-c benefits were meant to fulfill a narrow and important purpose. The goal is to compensate specified municipal employees for injuries incurred in the performance of special work related to the nature of heightened risks and duties. These functions are keyed to ‘the criminal justice process, including investigations, presentencing, criminal supervision, treatment and other preventative corrective services’ ” (id. at 259, quoting Senate Mem in Support of L 1997, ch 675, 1997 NY Legis Ann, at 458 [adding Nassau County probation officers to section 207-c]).

By contrast, the Workers’ Compensation Law “is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties” (id. [citation omitted]).

We concluded that an officer might qualify for workers’ compensation, but not for section 207-c benefits, offering this illustration:

“[A] police officer may be entitled to Workers’ Compensation benefits as a result of an injury during a Police Department team basketball practice because the nature of the activities may allow the injury to be considered as ‘arising out of and in the course’ of the employment. That kind of injury however, is not the heightened risk type intended to be deemed automatically as arising during the ‘performance’ of duties related to ‘the criminal justice process’ ” (id. at 260 [quoted citation omitted]).

Knitting together this illustration and our discussion of the Legislature’s stated rationale for selecting the classes of municipal employees covered by section 207-c, the Appellate Divisions in the cases before us read Balcerak to create a “heightened risk” standard. Under this standard, benefit eligibility turns on the nature of the specific task being performed by the employee at the time of injury; the employee is eligible for section 207-c benefits only if performing a task that entails a “heightened risk” peculiar to law enforcement work. The only question before us in Balcerak, however, was “whether a determination by the Workers’ Compensation Board that an injury is work-related should, by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law § 207-c benefits” (Balcerak, 94 NY2d at 256). We did not set out to interpret the phrase “in the performance of his duties.” Indeed, we remitted the case to the Appellate Division to address whether the officer was injured in the performance of his duties without specifying any standard for making this determination.

Moreover, in Matter of White v County of Cortland (97 NY2d 336 [2002]) we rejected a “heightened standard of proof’ to establish eligibility for section 207-c benefits (id. at 339). There, we stated that “[s]ection 207-c provides benefits to officers who are disabled ‘in the performance of or ‘as a result of their job duties and does not require that they additionally demonstrate that their disability is related in a substantial degree to their job duties” (id.). Consistent with White, we hold that in order to be eligible for section 207-c benefits, a covered municipal employee need only prove a “direct causal relationship between job duties and the resulting illness or injury” (id. at 340 [citations omitted]). The word “duties” in section 207-c encompasses the full range of a covered employee’s job duties.

III.

In each of these three article 78 proceedings, the Appellate Division upheld the municipality’s denial of section 207-c benefits to municipal employees based on erroneous application of a “heightened risk” standard to determine eligibility. Although we acknowledge that there are competing financial and policy considerations on both sides of this issue, “legislative intent is the great and controlling principle” (Council of City of N.Y. v Giuliani, 93 NY2d 60, 69 [1999]). The Legislature expressed its intent in the language of section 207-c, which manifestly does not restrict eligibility for its benefits in the manner advocated by the municipal respondents.

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

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

In Matter of Theroux v Reilly. Order reversed, etc.

In Matter of Wagman v Kapica: Order reversed, etc.

In Matter of James v County of Yates Sheriff’s Dept.: Order reversed, etc.

      . In 1980, the Legislature amended section 207-c to add sheriffs, under-sheriffs and sheriffs department corrections officers to the list of covered employees. In 1985, 1990, 1991, 1993, 1996 (twice) and 1997, the Legislature extended section 207-c to additional classes of municipal employees; specifically, detective-investigators in the district attorney’s office (L 1985, ch 696), Erie County corrections officers (L 1990, ch 885), Long Island Rail Road police officers (L 1991, ch 628), certain investigators in the office of a county’s district attorney (L 1993, ch 565), Nassau County advanced ambulance medical technicians (L 1996, ch 476), certain Nassau County fire inspectors and fire marshals (L 1996, ch 621) and Nassau County probation officers (L 1997, ch 675).

      . For example, advanced ambulance medical technicians “are assigned to many of the same hazardous situations and potentially life-threatening duties” as police officers, and often respond to ‘ ‘life-threatening police assignments such as riots, hostage or barricade situations” (Senate Mem in Support of L 1996, ch 476, 1996 McKinney’s Session Laws of NY, at 2418). Similarly, Nassau County probation officers “find themselves performing many of the functions performed by their counterparts in the police and corrections services,” and “are exposed on a daily basis to the risks and dangers involved in managing an increasingly violent criminal population. In addition, they are regularly exposed to significant amounts of stress and aggravation, not to mention a high possibility of bodily injury that may result from the performance of their duties” (Senate Mem in Support of L 1997, ch 675, 1997 McKinney’s Session Laws of NY, at 2648).

      . Interestingly, on remand the Appellate Division held that Supreme Court had erred in concluding that the County did not have a rational basis for its decision because “[t]he [officer] had been relieved of his post, had left the hospital property [where he had been stationed], and was en route home in his own car when he was injured. Thus, the [County’s] determination that the [officer] was not injured in the performance of his duties was a rational one” (Matter of Balcerak v County of Nassau, 274 AD2d 580, 581 [2d Dept 2000]). In other words, the officer was off duty and so was necessarily no longer performing his job duties when he was injured. There was no discussion of “heightened risk.”