text:
    In the Matter of Rachel Fulmer, Appellant, v Michael Buxenbaum, Jr., Respondent.
    Submitted June 18, 2012;
    decided September 11, 2012
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion to strike respondent’s brief in that Court, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


source: Caselaw Access Project

license: Public Domain

text:
    Fundamental Long Term Care Holdings, LLC, et al., Appellants/Counterclaim-Defendants-Appellants, v Cammeby’s Funding LLC et al., Respondents/Counterclaim-Plaintiffs-Respondents.
    Submitted June 11, 2012;
    decided September 11, 2012
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    Kowanna Groom, Respondent, v Sagamore Realty, LLC, et al., Appellants.
    Submitted June 11, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    David P. Kaplan et al., Respondents, v Madison Park Group Owners, LLC, et al., Defendants, and David Lipman, Appellant.
    Submitted June 11, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Michael H. Koegler, Respondent, v Pamela D. Woodard, Appellant.
    Decided September 11, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see CPLR 5601 [a]).


text:
    Bernice Malcolm, Appellant, v Honeoye Falls-Lima School District, Respondent.
    Submitted July 16, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted July 23, 2012;
    decided September 11, 2012
   Motion, insofar as it seeks leave to appeal from the March 2012 Appellate Division order, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the June 2012 Appellate Division order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Francis McGill et al., Respondents, v Fariha T. Qudsi, Appellant.
    Submitted July 2, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Ralph Oyague, Appellant, v Steven O. Schwartz, M.D., P.C., Respondent, et al., Defendant.
    Submitted July 23, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Edward Van Steenburg, Appellant.
    Decided September 11, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).

Judge Graffeo taking no part.


text:
    The People of the State of New York ex rel. Demetrio Lifrieri, Appellant, v William A. Lee, Respondent.
    Submitted July 2, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Salvatore Piro et al., Respondents, v Jerzy Macura, Appellant, et al., Defendant.
    Submitted July 16, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Salvatore Piro et al., Respondents, v Jerzy Macura, Appellant, et al., Defendant.
    Submitted August 20, 2012;
    decided September 11, 2012
   Motion by Physicians’ Reciprocal Insurer et al., insofar as it seeks leave to file a brief amici curiae on the motion for leave to appeal herein, granted and the brief is accepted as filed; motion, insofar as it seeks leave to file a brief amici curiae on the appeal herein, dismissed as academic.


text:
    In the Matter of Jose M. Poulose, Appellant, v Nirav R. Shah, as Commissioner of Health, et al., Respondents.
    Decided September 11, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Peter Principe, Respondent, v New York City Department of Education, Appellant.
    Submitted July 9, 2012;
    decided September 11, 2012
   Motion to dismiss appeal denied.


text:
    In the Matter of Starla D., Respondent, v Jeremy E., Appellant.
    Submitted July 16, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Acquisition of Real Property by the Village of Saranac Lake, Respondent; Wayne Bujold et al., Appellants, et al., Respondents. (And 10 Other Related Proceedings.)
    Submitted July 16, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    Mahmoud Diarassouba, Respondent, v Spencer Lubin et al., Appellants.
    Submitted July 2, 2012;
    decided September 13, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    East Midtown Plaza Housing Company, Inc., Appellant, v Andrew M. Cuomo, as Attorney General of the State of New York, et al., Respondents. East Midtown Plaza Tenant-Cooperator Association, Intervenor-Appellant; East Midtown Plaza Mitchell-Lama Organization, Intervenor-Respondent.
    Submitted September 10, 2012;
    decided September 13, 2012
   Motion by Cooperators United for Mitchell-Lama et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Hague Corporation, Respondent-Appellant, v Empire Zone Designation Board et al., Appellants-Respondents.
    Decided September 13, 2012
   Appeal by Hague Corporation dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    JP Morgan Chase Bank National Association, Respondent, v Hela Miodownik, Appellant, et al., Defendants.
    Submitted July 2, 2012;
    decided September 13, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Morrison Cohen, LLP, Respondent, v David Fink, Appellant.
    Submitted July 23, 2012;
    decided September 13, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Paul Murphy, Respondent, v New York State Division of Housing and Community Renewal, Appellant, and SouthBridge Towers, Inc., Respondent.
    Submitted July 23, 2012;
    decided September 13, 2012
   Motion by the City of New York for leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    Ralph Oyague, Appellant, v Incorporated Village of Malverne et al., Respondents.
    Decided September 13, 2012
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York, Respondent, v Carlos Abreu, Appellant.
    Submitted September 10, 2012;
    decided September 13, 2012
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lawrence Blankymsee, Appellant.
    Submitted August 27, 2012;
    decided September 13, 2012
   Motion to vacate this Court’s August 10, 2012 preclusion order granted.


text:
    The People of the State of New York, Respondent, v Christopher Brinson, Appellant.
    Submitted August 27, 2012;
    decided September 13, 2012
   Motion to vacate this Court’s August 10, 2012 preclusion order granted.


text:
    The People of the State of New York, Respondent, v Daniel Floyd, Appellant.
    Submitted September 4, 2012;
    decided September 13, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John G. Glynn, Appellant.
    Submitted September 10, 2012;
    decided September 13, 2012
   Motion for assignment of counsel granted and Paul V. Mullin, Esq., care of Sugarman Law Firm, LLfj 211 West Jefferson St., Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Franklin Hughes, Appellant.
    Submitted September 10, 2012;
    decided September 13, 2012
   Motion for assignment of counsel granted and Michael A. Fiechter, Esq., PO Box 1107, Bellmore, New York 11710 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Hector Santiago, Appellant.
    Submitted September 10, 2012;
    decided September 13, 2012
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Omar Shabazz, Appellant.
    Submitted September 10, 2012;
    decided September 13, 2012
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Frank J. Povoski, Jr., Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Decided September 13, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Alice Putney et al., Appellants, v The People of the State of New York, Acting By and Through the Power Authority of the State of New York, et al., Respondents.
    Decided September 13, 2012
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as dismissed the complaint, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remainder of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Randy Schwind, Appellant, v Mel Lany Construction Management Corp. et al., Defendants, and Charlene Khaghan, Respondent.
    Submitted July 23, 2012;
    decided September 13, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Skilled Investors, Inc., Plaintiff, v Bank Julius Baer & Co., Ltd., et al., Defendants. Bank Julius Baer & Co., Ltd., Respondent, et al., Plaintiff, v Menachem Ivcher et al., Defendants, and Baruch Ivcher et al., Appellants.
    Submitted July 16, 2012;
    decided September 13, 2012
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of WL, LLC, Respondent-Appellant, v Department of Economic Development, Also Known as Empire State Development, et al., Appellants-Respondents.
    Decided September 13, 2012
   Appeal by WL, LLC dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Alson Alston, Appellant, v New York City Commission on Human Rights et al., Respondents.
    Submitted July 30, 2012;
    decided September 18, 2012
   Motion, insofar as it seeks leave to appeal from so much of the February 2012 Appellate Division order as denied appellant’s motion for poor person relief and dismissed his appeal from the March 2010 Supreme Court order, dismissed upon the ground that such portions of the Appellate Division order do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Arnav Industries, Inc., Respondent, v Jody Pitari, Appellant.
    Submitted August 6, 2012;
    decided September 18, 2012
   Motion for reargument granted and, upon reargument, motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution [see 19 NY3d 949 (2012)].


text:
    Ellen J. Gallagher, Respondent-Appellant, v Edward R. Gallagher, Appellant-Respondent.
    Submitted July 9, 2012;
    decided September 18, 2012
   Motion by Edward R. Gallagher for leave to appeal denied. Motion by Ellen J. Gallagher for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion by Ellen J. Gallagher for other relief denied.


text:
    Wilfredo Lopez, Appellant, v Richard A. Fenn, Respondent, et al., Defendants.
    Submitted July 2, 2012;
    decided September 18, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Teddy Moore, Appellant, v Frank Guerra, Defendant, and Christopher Bramwell et al., Respondents.
    Submitted July 23, 2012;
    decided September 18, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Butler v New York City Tr. Auth., 67 AD3d 620 [2009], lv dismissed 14 NY3d 909 [2010]). Motion for poor person relief dismissed as academic.


text:
    Parviz Noghrey, Respondent-Appellant, v Town of Brookhaven et al., Appellants-Respondents.
    Submitted June 25, 2012;
    decided September 18, 2012
   On the Court’s own motion, appeal by Town of Brookhaven et al. and appeal by Parviz Noghrey dismissed, without costs, upon the ground that the order and judgment appealed from does not finally determine the action within the meaning of the Constitution. Forms of relief within a single cause of action cannot be expressly or impliedly severed (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]). The unresolved items of relief render the order and judgment nonfinal. Motion to modify statutory stay denied.


text:
    In the Matter of Glenn Storman, Appellant, v New York City Department of Education, Respondent.
    Decided September 18, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Ricky D. West et al., Respondents, v Mark Hogan et al., Appellants. (And a Third-Party Action.)
    Submitted July 9, 2012;
    decided September 18, 2012
   Motion to dismiss appeal denied.


author: Memorandum.

text:
    [978 NE2d 593, 954 NYS2d 1]
    Summer H., an Infant, by Her Father and Natural Guardian, John H., et al., Appellants, v New York City Department of Education, Respondent.
    Decided October 18, 2012

      APPEARANCES OF COUNSEL

      Apicella & Schlesinger, New York City (Alan C. Kestenbaum of counsel), for appellants.

      Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Viewing the evidence in a light most favorable to plaintiff (see e.g. Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]), defendant demonstrated its entitlement to summary judgment dismissing the complaint. The infant plaintiff’s classmate’s action in stepping backwards constituted a “thoughtless or careless act” not preventable by reasonable supervision (Mirand v City of New York, 84 NY2d 44, 49 [1994]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    [978 NE2d 1251, 954 NYS2d 782]
    Jayvaun Stephenson, an Infant, by His Mother and Natural Guardian, Nadra Sinclair, et al., Appellants, v City of New York et al., Respondents.
    Argued September 12, 2012;
    decided October 18, 2012

      APPEARANCES OF COUNSEL

      Law Offices of Jonathan M. Cooper, Cedarhurst (Jonathan M. Cooper of counsel), for appellants.

      Michael A. Cardozo, Corporation Counsel, New York City (Susan B. Eisner and Francis F. Caputo of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Jayvaun Stephenson was injured in an assault by another student, Lorenzo McDonald, on the morning of October 24, 2003. The incident occurred two blocks from the boys’ school prior to school hours. Jayvaun, a 13-year-old eighth-grade student, had been involved in a prior altercation with Lorenzo just two days before, on October 22, between classes at school. That fight ended when Jayvaun’s friends separated the combatants.

Both boys received in-school suspensions for the October 22 incident, Jayvaun for one day, and Lorenzo for one to two weeks. The assistant principal dismissed Jayvaun from school early, making sure the boys’ dismissal times were not the same so that no further altercations would occur after they left the school that day. The boys did not see each other the remainder of the day or the following day during school hours. However, according to Jayvaun, he saw Lorenzo after school hours on October 23, on school grounds, when Lorenzo threatened him.

Plaintiffs brought this action against defendants for negligence alleging, among other things, that school officials failed to ensure Jayvaun’s safety from the October 24 assault. During discovery, defendants were sanctioned for their failure to produce records demanded by plaintiffs resulting in Supreme Court holding that defendants were deemed to have notice of the October 24 incident.

Defendants moved for summary judgment, arguing, among other things, that since the October 24 incident occurred before regular school hours and off school property, defendants owed no duty to plaintiffs and, therefore, could not be held liable for the incident. Supreme Court denied the motion; the Appellate Division, with two Justices dissenting, reversed by granting defendants’ motion to dismiss the complaint (85 AD3d 523 [1st Dept 2011]).

It is well settled that a school owes a common-law duty to adequately supervise its students. This duty “stems from the fact of its physical custody over them” (Pratt v Robinson, 39 NY2d 554, 560 [1976]). We have explained that the nature of the duty is that the school must “exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances” (Mirand v City of New York, 84 NY2d 44, 49 [1994], quoting Hoose v Drumm, 281 NY 54, 57-58 [1939]). “The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” (Mirand, 84 NY2d at 49). Schools are not, however, insurers of students’ safety and “cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable ‘for every thoughtless or careless act by which one pupil may injure another’ ” (id., quoting Lawes v Board of Educ. of City of N.Y., 16 NY2d 302, 306 [1965]).

Generally, the duty of care does not extend beyond school premises. As this Court has explained: “When [the school’s] custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child’s protection, the school’s custodial duty also ceases’1’ (Pratt, 39 NY2d at 560).

Nevertheless, we have, in certain situations, extended the duty to off-school premises injuries (see Bell v Board of Educ. of City of N.Y., 90 NY2d 944 [1997]; Ernest v Red Cr. Cent. School Dist., 93 NY2d 664 [1999]). However, those cases found liability on the part of the school for injury that occurred either during school hours or shortly thereafter upon the student’s departure from the school. None of these circumstances are present.

Here, the plaintiff was adequately supervised at school, and the school addressed the altercation that occurred on school property between plaintiff and Lorenzo McDonald by punishing the students. The second altercation which resulted in plaintiffs injuries was out of the orbit of the school’s authority, as the incident occurred away from the school and before school hours where there was no teacher supervision.

Further, contrary to plaintiffs’ urging, the school cannot be held liable for a failure to comply with a separate duty to notify Jayvaun’s mother of the impending danger. There is no statutory duty to inform parents about generalized threats made at school, and the circumstances here do not give rise to a common-law duty to notify parents about threatened harm posed by a third party. This case did not involve threatened conduct that would occur while the child was in custody and control of school officials (see Matter of Kimberly S.M. v Bradford Cent. School, 226 AD2d 85, 88 [1996]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs, in a memorandum.


text:
    [978 NE2d 1237, 954 NYS2d 769]
    Town of Oyster Bay, Appellant, v Galen D. Kirkland, as Commissioner of the New York State Division of Human Rights, et al., Respondents.
    Argued September 6, 2012;
    decided October 18, 2012

      APPEARANCES OF COUNSEL

      Giaimo Associates, LLP, Kew Gardens (Joseph D. Giaimo of counsel), for appellant.

      Caroline J. Downey, General Counsel, Bronx (Michael K. Swirsky of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs.

The Town of Oyster Bay has created zoning districts designed for “Golden Age Housing” (below-market-rate private housing for senior citizens) and “Next Generation Housing” (below-market-rate private housing for first-time home buyers), in which preference is given to buyers who are residents of the Town, and their parents and children, respectively. In 2009, the New York State Division of Human Rights (SDHR) filed an administrative complaint alleging that the Town’s actions “deny housing to persons based on their race, color and national origin” and thus violate the Human Rights Law (Executive Law art 15).

The SDHR asserted in its complaint that, as of 2000, only 1.6% of the Town’s population “was Black ... in sharp contrast to the rest of Nassau County, which was much more diverse than the Town.” Citing Executive Law § 296 (6), the SDHR alleged that Oyster Bay is “aiding and abetting” discrimination in housing. The SDHR assigned the complaint to a regional office to determine whether the SDHR has jurisdiction and investigate whether probable cause exists to believe that the Town has violated the law.

Without waiting for the completion of the SDHR’s investigation, the Town commenced this action against the SDHR and its Commissioner. The Town sought (1) a declaration that the SDHR was without authority to file a complaint in the absence of an individual complainant, (2) a declaration that the Town is not a proper respondent with respect to the SDHR’s complaint and is not subject to the Human Rights Law provisions cited by the SDHR, (3) injunctive relief, (4) a declaration that Executive Law § 295 (6) (a) and (b), which collectively authorize the SDHR to both file and decide complaints, are unconstitutional, (5) a declaration that the SDHR’s claims are barred by the statute of limitations, and (6) a declaration that the SDHR’s complaint “constitutes a prohibited act of reverse racial discrimination.”

Supreme Court granted the SDHR’s motion to dismiss the Town’s action pursuant to CPLR 3211 (a) (7), holding that the SDHR has authority to bring an action upon its own motion, in the absence of an individual complainant, that the SDHR’s authority to decide complaints it has filed is not unconstitutional, and that the SDHR’s complaint does not constitute “reverse discrimination” (2009 NY Slip Op 32327[U] [2009]). Supreme Court also dismissed the Town’s second and fifth causes of action, on the ground that the Town was required to exhaust its administrative remedies before bringing such claims, and denied injunctive relief. Supreme Court granted the Town’s motion for reargument and, upon reargument, adhered to its original decision.

The Town appealed from Supreme Court’s judgment dismissing its complaint and the order adhering to its original decision on reargument. The Appellate Division held that the Town’s second, fifth, and sixth causes of action are all subject to the requirement of exhaustion of administrative remedies. With respect to the first and fourth causes of action, the Appellate Division held that the SDHR’s “authority to file a complaint on its own has previously been upheld by statute and case law” (81 AD3d 812, 817 [2011], citing, inter alia, Executive Law § 295 [6] [b], and 9 NYCRR 465.3 [a] [3]), and that “[t]he combination of investigative and adjudicative functions in a single administrative agency or officer is not, ipso facto, a denial of due process” (81 AD3d at 817, quoting Matter of Berncolors-Poughkeepsie, Inc. v City of Poughkeepsie, 96 AD2d 595, 597-598 [2d Dept 1983]). Therefore, Supreme Court had properly denied the Town’s motion for injunctive relief. The Appellate Division modified Supreme Court’s judgment by adding provisions declaring that the SDHR “acted within its authority in initiating the administrative complaint on its own and that Executive Law § 295 (6) (a) and (b) are not collectively unconstitutional” (81 AD3d at 813), and affirmed the judgment as so modified.

We granted the Town leave to appeal. In its briefs before this Court, the Town has abandoned all but one of the causes of action asserted in its complaint. The surviving claim on which it rests its case is that the SDHR is engaged in “reverse discrimination.” We therefore must first determine whether the claim is one that requires administrative exhaustion.

“[0]ne who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law ....
“The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978] [citations omitted]).

Here, the Town has abandoned its argument that the SDHR’s complaint was ultra vires, but pursues its claim that the SDHR is engaged in unconstitutional “reverse discrimination.”

We have held that

“[a] constitutional claim that may require the resolution of factual issues reviewable at the administrative level should initially be addressed to the administrative agency having responsibility so that the necessary factual record can be established. Moreover, merely asserting a constitutional violation will not excuse a litigant from first pursuing administrative remedies that can provide the requested relief’ (Matter of Schulz v State of New York, 86 NY2d 225, 232 [1995] [citations omitted]).

In the present case, the SDHR’s allegation that the Town’s residency preferences amount to discrimination and the Town’s claim that it would be “reverse discrimination” to eliminate the residency preferences require the resolution of factual issues at the administrative level before they can be passed upon by a court. In particular, a factual record of the adverse impact of the Town’s preferences on home buyers from minority communities, and the impact that removing the preferences would have, has yet to be developed. Notably, after such factual review, an administrative law judge could provide the relief ultimately sought by the Town by finding that the preferences do not amount to discrimination and dismissing the complaint; this is not a case in which it would be futile to seek relief in the first instance through the administrative process. Therefore, the Town should initially address its constitutional claim, along with its defenses, to the SDHR.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs, in a memorandum.

      . Prior to this appeal, the Town appealed to this Court pursuant to CPLR 5601 (b) (1), limiting its appeal to the Appellate Division’s affirmance of the dismissal of the Town’s sixth cause of action. Because the Appellate Division did not take a view of this cause of action that required it to pass upon a constitutional question, we dismissed that appeal (17 NY3d 778 [2011]).

        . The Town argues briefly that the SDHR acted beyond its authority “because the Town is not subject to the [Human Rights Law] provisions with which it is charged,” but it does not distinguish this claim from its “reverse discrimination” argument. The threshold question of whether the Town is a “person” within the meaning of Executive Law § 296 (6) is therefore not before us on this appeal.


text:
    In the Matter of City of Yonkers, Respondent, v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, Appellant.
    Submitted October 15, 2012;
    decided October 18, 2012
   Motion by New York State Professional Firefighters Association, I.A.F.F., AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Commissioner of Social Services, on Behalf of Elizabeth S., Appellant, v Julio J., Respondent.
    Submitted October 15, 2012;
    decided October 18, 2012
   Motion for poor person relief granted.


text:
    Commonwealth of the Northern Mariana Islands, Appellant, v Canadian Imperial Bank of Commerce, Respondent, et al., Defendant. The Millard Foundation, Intervenor.
    Decided October 18, 2012

      See 693 F3d 274.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    In the Matter of Darryl C., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Decided October 18, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see CPLR 5601 [a]).


text:
    In the Matter of Gregory John Fischer et al., Appellants, v New York State Board of Elections et al., Respondents.
    Decided October 18, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Riven Flamenbaum, Deceased. Vorderasiatisches Museum, Respondent; Hannah K. Flamenbaum, Appellant; Israel Flamenbaum, Objectant-Respondent.
    Submitted October 15, 2012;
    decided October 18, 2012
   Motion by Archaeological Institute of America et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Providenza M. Fraccola, Respondent, v Alan P. Fraccola, Appellant.
    Submitted July 23, 2012;
    decided October 18, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Shawn Green, Appellant, v Mark L. Bradt, as Superintendent of Elmira Correctional Facility, Respondent.
    Submitted June 18, 2012;
    decided October 18, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 802 (2012)].


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    (Claim No. 112892.)
    Submitted July 9, 2012;
    decided October 18, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 805 (2012)].


text:
    In the Matter of Jaquan M., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Decided October 18, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see CPLR 5601 [a]).


text:
    Richard H. Kilmer et al., Appellants, v George Miller et al., Respondents.
    Submitted July 30, 2012;
    decided October 18, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Eddie James Lee, Sr., Appellant, v Carol B. Woughter, Superintendent, Respondent.
    Submitted July 30, 2012;
    decided October 18, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Edward P. Mangano et al., Respondents, v Sheldon Silver et al., Defendants, and State of New York et al., Appellants.
    Decided October 18, 2012
   Appeals, treated as taken from the counter-judgment, transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York, Respondent, v Travis Augustine, Appellant.
    Submitted September 24, 2012;
    decided October 18, 2012
   Motion for assignment of counsel granted and Matthew C. Hug, Esq., 105 Jordan Road, Troy, New York 12180 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jocelyn Clermont, Appellant.
    Submitted October 9, 2012;
    decided October 18, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Daryl Hamm, Appellant.
    Submitted October 9, 2012;
    decided October 18, 2012
   Motion for assignment of counsel granted and David C. Schopp, Esq., The Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Kevin W., Respondent.
    Submitted October 1, 2012;
    decided October 18, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Reyes Rodriguez, Appellant.
    Submitted October 9, 2012;
    decided October 18, 2012
   Motion for assignment of counsel granted, and Arnold J. Levine, Esq., 233 Broadway, Suite 901, New York, NY 10279 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Carl Wells, Appellant.
    Submitted October 15, 2012;
    decided October 18, 2012
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.


text:
    Kenneth E. Ramseur, Appellant, v Hudsonview Company et al., Respondents.
    Submitted July 16, 2012;
    decided October 18, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 804 (2012)].


text:
    In the Matter of P. David Soares, as District Attorney of Albany County, Respondent, v Stephen W. Herrick, as Judge of the County Court of Albany County, Respondent, and Naomi Loomis et al., Appellants.
    Submitted October 15, 2012;
    decided October 18, 2012
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Troy Nursing & Rehabilitation Center, LLC, Doing Business as The Springs Nursing & Rehabilitation Centre, Respondent, v Ernest Naylor, Defendant, and Diana Gaetano, Individually and as Responsible Party and Attorney-in-Fact for Ernest Naylor, Appellant.
    Submitted June 11, 2012;
    decided October 18, 2012
   Motion for leave to appeal dismissed upon the ground that timely substitution has not been made (see CPLR 1021).


text:
    [978 NE2d 599, 954 NYS2d 7]
    In the Matter of Robert P. Apple.
    Decided October 23, 2012
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Hon. Robert P Apple is suspended, with pay, effective immediately, from the office of Justice of the Pawling Village Court, Dutchess County, pursuant to New York State Constitution, article VI, § 22 and Judiciary Law § 44 (8).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


author: Memorandum. Pigott, J. (dissenting). Smith, J. (dissenting).

text:
    [979 NE2d 1135, 955 NYS2d 809]
    The People of the State of New York, Respondent, v Robert C. Halter, Appellant.
    Argued September 13, 2012;
    decided October 23, 2012

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant and his ex-wife are the parents of two daughters. After their divorce, the mother and daughters moved out of state but returned to New York several years later. This allowed defendant to visit his daughters (8 and 13 years of age) on weekends, but his relationship with his older daughter was fraught with difficulties. He constantly argued with her about what he considered her unacceptable behavior and threatened to send her to a “brat camp” if she continued to disregard his admonitions. Their contentious relationship lead to an incident in July 2006, when defendant sought police assistance to locate her since she had not returned to her mother’s home the night before. After the police picked her up at the home of a 16-year-old boy, she and defendant had a heated telephone conversation. When the phone call ended, she informed her mother that her father had sexually abused her. The younger daughter later made a similar revelation, leading to defendant’s arrest.

At defendant’s bench trial, both daughters described their incidents of sexual abuse in detail. On cross-examination, the older daughter admitted that she often argued with her father about boys, her behavior and her attire. During defendant’s testimony, he corroborated the friction between himself and his daughter and confirmed that he often discussed sending her to “the Villa,” a special school, if she did not change her ways.

Defendant was convicted as charged of sexual abuse in the first degree, rape in the second degree, criminal sexual act in the second degree and endangering the welfare of a child. The Appellate Division affirmed (81 AD3d 1446 [4th Dept 2011]), and a Judge of this Court granted defendant leave to appeal (17 NY3d 796 [2011]).

On appeal, defendant claims that he was deprived of a fair trial because several of the trial court’s evidentiary rulings prevented him from adequately establishing his older daughter’s motivation to fabricate the charges. In particular, he asserts that the trial judge erred in precluding (1) cross-examination of the older daughter regarding the purportedly sexual nature of her relationship with the 16-year-old boy at whose home she was found; (2) cross-examination about her sexually provocative postings and photos from her MySpace account; and (3) evidence of her tendency to wear what defendant considered to be inappropriate clothing for her age. Defendant claims that this evidence was essential to explaining the increasing discord between himself and his daughter and that its exclusion did not allow him to present a complete explanation of his defense. We disagree.

First, the court did not err in precluding evidence regarding the purportedly sexual nature of the daughter’s relationship with an older teenage boy. That evidence fell squarely within the ambit of the Rape Shield Law, which generally prohibits “[ejvidence of a victim’s sexual conduct” in a prosecution for a sex offense under Penal Law article 130 (CPL 60.42) because such evidence “rarely elicits testimony relevant to the issues of the victim’s consent on credibility, but serves only to harass the alleged victim and confuse the jurors” (People v Scott, 16 NY3d 589, 594 [2011] [internal quotation marks and citation omitted]). The court did not abuse its discretion in disallowing this line of inquiry under CPL 60.42 (5), which vests the trial court with discretion to consider the admission of such evidence “in the interests of justice.” Although defendant claims that this evidence would have demonstrated that his daughter had a desire to preserve her relationship with the young man, defendant did not attempt to elicit the general nature of the relationship between the two teenagers, instead focusing solely on alleged sexual behavior (compare People v Halbert, 80 NY2d 865, 866 [1992] [where “the trial court allowed evidence of a relationship between the minor complainant and her male friend to be presented to the jury, the court did not err in its related discretionary evidentiary ruling precluding cross-examination of the complainant with respect to the sexual aspect of that relationship”]). In any event, the trial court did permit evidence regarding the daughter’s failure to return home that night; that she was found by police at the teenage boy’s house the next day; that she was in his bedroom with him; and that she was quite angry at defendant for sending the police after her.

Contrary to the dissent’s suggestion, the trial court complied with the two-part Rape Shield Law procedure outlined in People v Williams (81 NY2d 303 [1993]). First, the court allowed defendant to describe without restriction his proposed line of inquiry as to whether a sexual relationship existed between the older daughter and the 16-year-old boy, and its asserted relevance to the defense—to show that the older daughter’s motive to fabricate arose from her desire to continue her relationship with the boy without her father’s interference, or to protect the boy from a statutory rape charge. Second, after stating that it “understood [defendant’s] argument,” the court declined the admission of the proposed evidence, explaining that defendant could “certainly ask her about running away from home as a motive, et cetera,” but that the “sex part” would be excluded because of its propensity to harass the 13 year old. Although the dissent would apparently require a fuller explication, we found a similarly concise explanation sufficient in Williams, commenting that

“[t]he court’s statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the ‘interest of justice’ exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error” (id. at 314).

So too here.

Next, the trial court did not abuse its discretion in precluding defendant from cross-examining the older daughter about certain provocative comments and suggestive photos on her MySpace account. Trial judges have “discretion to determine the scope of the cross-examination of a witness” (People v Corby, 6 NY3d 231, 234 [2005]) and are entitled to weigh the probative value of such evidence against the possibility of confusion, unfair prejudice or cumulativeness (see People v Hayes, 17 NY3d 46, 53 [2011]). Here, the trial court gave defendant some leeway in portraying the nature of the material on his daughter’s MySpace account and the conflict that arose between them over the postings. During cross-examination, the daughter admitted that defendant was “very angry” about what he found on her account and told her to shut it down, which she refused to do. She also testified that she did not appreciate her “father yelling at [her] about [her] MySpace page.” Defendant himself described the content on the MySpace account as “disgusting” in explaining why he forbade his daughter from using the computer at his house. Although the trial court could have permitted further inquiry, it was not an abuse of discretion to preclude additional cross-examination regarding the precise images or content appearing on the daughter’s MySpace page. Based on the evidence presented, it was obvious that the inappropriate MySpace postings caused considerable friction between defendant and his daughter and that she resented his parental intrusion.

We also perceive no abuse of discretion in the trial court’s exclusion of evidence regarding the specific clothing the older daughter favored. In determining issues of relevancy of evidence, trial courts possess latitude to admit or preclude evidence based on their analysis of its probative value against the danger that it will confuse the main issues, cause unfair prejudice to the other side or be cumulative (see People v Petty, 7 NY3d 277, 286 [2006]). As with the MySpace evidence, the court did permit testimony regarding the controversy over the daughter’s attire and defendant’s negative reaction to her clothing choices. For example, defense counsel asked the daughter whether defendant “criticized the way [she] dressed” and would “criticize that [she] showed too much.” She answered both questions in the affirmative. Defendant was able to demonstrate that the daughter’s manner of dress was another source of strain on the parent-child relationship that contributed to the daughter’s motivation to escape his control by fabricating charges of sexual abuse. That the court later discontinued further questioning of defendant regarding his “observations of the way that [she] was dressing” does not warrant reversal because the precise types of clothing that his daughter wore were unnecessary to further the motive defense.

In sum, the trial judge gave defendant sufficient latitude to develop the theory that his older daughter had substantial reasons to fabricate—either to put an end to defendant’s parental interference or to avoid being sent to an institution for troubled youths. The proof showed that defendant contacted the police to find her; constantly argued with her about her relationships with boys; objected to her staying out late at night; criticized her clothing; ordered her to discontinue her MySpace page; believed her to be disrespectful toward authority figures; and warned her “every other weekend or so” that her rebellious behavior would result in her placement in the Villa. Furthermore, the daughter acknowledged that she was upset with defendant for calling the police; did not like him telling her how to dress or whom she could associate with; was tired of his “lectures”; and believed he was serious about his threat to send her to a special program. Defendant was therefore able to present evidence reflecting his parental concern over his daughter’s inappropriate and risky behavior, which he claimed provoked his daughter’s motivation to lie about his conduct. As such, there was no abuse of discretion in the trial court’s exclusion of the challenged evidence.

Pigott, J. (dissenting).

Section 60.42 of the Criminal Procedure Law, commonly known as the Rape Shield Law, provides that, generally, “[e]vidence of a victim’s sexual conduct shall not be admissible” in a sex offense prosecution. However it is not an inelastic rule of evidence. It contains several important statutory exceptions. In addition to four very specific situations in which such evidence may be admissible (CPL 60.42 [l]-[4]), the statute provides that a trial court may determine, in its discretion, to admit evidence of a victim’s sexual conduct if it is “relevant and admissible in the interests of justice” (CPL 60.42 [5]). It may do so “after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination” (id.). Under this provision, “evidence of a complainant’s sexual conduct may be admissible if it is relevant to a defense” (People v Scott, 16 NY3d 589, 594 [2011]).

In People v Williams (81 NY2d 303 [1993]), we observed that although

“the statute by its terms requires an offer of proof only when a court decides to grant a defense motion . . . [it] is designed to protect the rights and interests of defendants as well as the interests of victims. The requirement of a factual statement is properly viewed as ensuring both due consideration of defense motions and an adequate record for appeal while at the same time assuring that the victim’s interests are properly considered” (81 NY2d at 313).

We therefore held that defense counsel must be “given an opportunity to summarize the evidence [of prior sexual conduct] and explain its relevance without restriction by the court,” and that the trial court must in its statement of findings “adequately put defendants on notice of its reasoning and create[ ] a record for appeal” (Williams, 81 NY2d at 314).

Here, County Court failed to give any but the most cursory explanation of its decision. Presented with the motion in limine, the trial court simply stated, “Not admissible. That doesn’t really have to be a motion. It’s not admissible except under certain limited circumstances that I assume counsel knows about” (emphasis added). Pressed by defense counsel to admit evidence of the elder sister’s sexual contact with a 16-year-old boy, the trial court responded as follows:

“I don’t buy it with respect to being outside the rape shield. I don’t think you can ask her about her sexual contact with another person. You can certainly ask her about running away from home as a motive, et cetera, but not the sexual stuff. ... I think running away from home would be of sufficient concern to her father. ... Of course, you can cross-examine to that. It’s motive to fabricate.”

It appears that County Court was under the misconception that the Rape Shield Law contains only the specific enumerated exceptions of section 60.42 (1) through (4), and that it was powerless to admit any evidence of the elder sister’s sexual conduct unless it matched one of these four exceptions. In other words, the trial court believed that it had no discretionary authority to allow in evidence of the elder sister’s sexual conduct even if relevant to a defense. It thought that there “doesn’t really have to be a motion” because it considered exclusion of evidence of sexual conduct to be automatic, and not require judicial discretion.

Moreover, County Court failed to explain its reasoning in such a way as to create a record for appeal. While this Court articulates a theory on which the trial court “gave defendant sufficient latitude to develop the theory that his older daughter had substantial reasons to fabricate” (majority mem at 1051), there is no evidence in the record of any attempt by the trial court to analyze the relevance of the sexual evidence that defense counsel sought to admit. For example, when defense counsel suggested to the trial court that it would be relevant to the defense to elicit whether the elder sister was actually having sex with an older boy—because that was pertinent to the elder sister’s concern that the boy might be arrested for statutory rape if her father continued to intrude—the trial court refused to consider that argument, and simply responded, “No. Stay away from the sex part.” It cannot be said that this reply put defendant on notice of the court’s reasoning.

The Rape Shield Law has an important place in criminal proceedings. In particular, it “put[s] to rest the now-discredited rationale that a victim’s past ‘unchastity’ is probative of present consent and recognize [s] that such evidence is typically of little or no relevance and may seriously prejudice the prosecution of sex crimes” (Williams, 81 NY2d at 312 [emphasis added]; see also Scott, 16 NY3d at 594). Here, however, where consent was not at issue, since even the elder sister was below the age of consent, this primary policy reason underlying the Rape Shield Law does not apply in any obvious manner, and the principal concern is instead to prevent embarrassment to, or harassment of, the victim. I see no evidence in the record of the requisite careful weighing of the elder sister’s privacy interests against the defendant’s rights to confrontation and to present a defense. Rather, the trial court seems to have proceeded entirely on the basis that no evidence of the elder sister’s sexual conduct could ever be admitted.

County Court committed reversible error in failing to comply with Williams. Moreover, that error was not harmless. The evidence of defendant’s guilt was far from overwhelming. The proof was based entirely on the testimony of the two sisters, one of whom had a strong motive to fabricate a story of parental abuse. There was no forensic or other physical evidence tending to prove defendant’s guilt. Had County Court understood its discretionary authority to allow in evidence of the elder sister’s sexual conduct under CPL 60.42 (5), there is a significant probability that it would have admitted the evidence of the elder sister’s sexual conduct that was material to her motive to fabricate—evidence that we must instead assume that it instructed itself to disregard—and reached a different verdict than it did. In assessing the probability of a different verdict, we must consider that the elder sister had previously accused another man—her mother’s then-boyfriend—of beating her, an allegation that her mother told the court was not true.

Smith, J. (dissenting).

In several recent cases involving alleged sexual abuse of children, I expressed in dissenting opinions my view that the convictions should be upheld, in part because of strong evidence of the defendants’ guilt (see People v Rosario, 17 NY3d 501, 515 [2011, Smith, J., dissenting]; People v Fisher, 18 NY3d 964, 967 [2012, Smith, J., dissenting]; People v Kelley, 19 NY3d 887, 890 [2012, Smith, J., dissenting]). In this case, I have the opposite problem. I believe that the majority is erroneously affirming a conviction in a case where the defendant may be innocent. I join Judge Pigott’s dissent, and write separately to elaborate on his observation that “[t]he evidence of defendant’s guilt was far from overwhelming” (dissenting op of Pigott, J. at 1054).

This case does not, as many cases involving sexual abuse within a family do, involve a long and intimate relationship, a careful grooming of the child victim, and a pact of secrecy between the victim and her abuser. The older complainant here made an accusation of abuse against a father she had not lived with for many years. She made the accusation, she admitted, as a way of thwarting defendant’s threat to send her to a place referred to in the record as “brat camp” or “the Villa”— evidently an institution for adolescents with behavior problems.

The older complainant asserted, in substance, that on three occasions defendant attacked her sexually without warning. On two of the occasions, his alleged conduct in doing so seems to have been almost insanely risky: It took place in a room where several other people were asleep. The record shows that, as defendant well knew, the older complainant was not a meek or submissive child. What made him think she would not cry out, and awaken the others?

The older complainant’s testimony contains another significant improbability: Defendant testified that he did indeed intend to send his daughter to “the Villa,” and she testified that she “knew” he really would send her there. But what abuser in his right mind would send his victim to a place where he would lose access to her, where she would know she was safe from him, and where she would be encouraged to tell counselors about anything that was bothering her?

The older complainant was, the record makes clear, a seriously troubled girl—with troubles not, so far as the record shows, of defendant’s making. She acknowledged that she had punched in the face a schoolmate who had insulted her, and that she had written a letter saying “that I hated my teachers and I was gonna burn down the school.” She had twice run away from the home where she lived with her mother and stepfather, and had called Child Protective Services to complain about her stepfather, who, she said, had beaten her up and put a pillow over her face. The record provides no basis for judging whether her charges against her stepfather were true or false; either way, they are more evidence that her life was a turbulent one.

I acknowledge that one fact in the record—the accusation of defendant by his younger daughter, made soon after the older complainant accused him—adds significant strength to the People’s case (though it would not be unprecedented for a young girl to imitate or join her older sister’s bad behavior). More fundamentally, of course I acknowledge that it is not our job to decide defendant’s guilt or innocence. Doubts about the evidence of his guilt are relevant here only as they illuminate the ruling that the trial court made under the Rape Shield Law. I think that ruling was incorrect, for the reasons Judge Pigott explains; but I admit that, if it was a correct ruling, we must affirm the conviction, whether we think defendant innocent or guilty.

Nevertheless I am disturbed—more disturbed in this way than I have been by any case since People v Calabria (3 NY3d 80 [2004]). In Calabria, Judge Rosenblatt, who voted to uphold the defendant’s conviction, remarked in a concurring opinion:

“[T]his is a particularly disquieting case, one that calls for a new and fastidious layer of review. If on further investigation the District Attorney shares these concerns, he has the power and, I am confident, the motivation, to take whatever steps are appropriate to do justice” (id. at 84).

I make a like suggestion now to the Monroe County District Attorney.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Jones concur; Judge Pigott dissents and votes to reverse in an opinion in which Judge Smith concurs; Judge Smith in a separate dissenting opinion.

Order affirmed in a memorandum.

       The purportedly sexual relationship between the daughter and the 16-year-old boy was the only evidence at issue during the People’s pretrial motion in limine premised on the Rape Shield Law.


text:
    [979 NE2d 799, 955 NYS2d 540]
    In the Matter of Jerry Delakas, Appellant, v Jonathan Mintz, in His Capacity as Commissioner of the New York City Department of Consumer Affairs, Respondent.
    Decided October 23, 2012

      APPEARANCES OF COUNSEL

      Santamarina & Associates, New York City (Gil Santamarina of counsel), for appellant.

      Proskauer Rose LLP, New York City (Alyse Fiori of counsel), and Michael A. Cardozo, Corporation Counsel (Elizabeth S. Natrella of counsel) for respondent.
   OPINION OF THE COURT

Memorandum.

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

The determination of the New York City Department of Consumer Affairs to deny petitioner’s license to operate a newsstand because petitioner was not financially dependent on the licensee within the meaning of 6 RCNY 2-64 (a) (12) had a rational basis and was not arbitrary or capricious.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


author: Memorandum. Smith, J. (dissenting).

text:
    [979 NE2d 1121, 955 NYS2d 795]
    In the Matter of 677 New Loudon Corporation, Doing Business as Nite Moves, Appellant, v State of New York Tax Appeals Tribunal et al., Respondents.
    Argued September 5, 2012;
    decided October 23, 2012

      APPEARANCES OF COUNSEL

      W. Andrew McCullough, L.L.C., Midvale, Utah (W. Andrew McCullough of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb, Andrew D. Bing and Barbara D. Underwood of counsel), for respondents.

      Shafer & Associates, P.C. (Bradley J. Shafer, of the Michigan bar, admitted pro hac vice, of counsel), and Morrison & Foerster LLP, New York City (Hollis L. Hyans and R. Gregory Roberts of counsel), for CMSG Restaurant Group LLC, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, the operator of an adult “juice bar” in Latham, New York, contends that the admission charges and private dance performance fees it collects from patrons are exempt from state sales and use taxes. We agree with the Appellate Division that petitioner failed to meet its burden of proof that a tax exemption applies to those charges.

To begin, New York State collects taxes from a wide variety of entertainment and amusement venues. In particular, the Tax Law imposes a sales tax on “[a]ny admission charge” in excess of 10% for the use of “any place of amusement in the state” (Tax Law § 1105 [f] [1]). The legislature expansively defined places of amusement that are subject to this tax to include “[a]ny place where any facilities for entertainment, amusement, or sports are provided” (Tax Law § 1101 [d] [10]). The tax, therefore, applies to a vast array of entertainment including attendances at sporting events, such as baseball, basketball or football games, collegiate athletic events, stock car races, carnivals and fairs, amusement parks, rodeos, zoos, horse shows, arcades, variety shows, magic performances, ice shows, aquatic events, and animal acts (see 20 NYCRR 527.10). Plainly, no specific type of recreation is singled out for taxation.

However, with the evident purpose of promoting cultural and artistic performances in local communities, the legislature created an exemption that excluded from taxation admission charges for a discrete form of entertainment—“dramatic or musical arts performances” (Tax Law § 1105 [f] [1]). In this case, petitioner claims, and the dissent agrees, that the legislature intended to give the adult entertainment business a tax break because the exotic stage and couch dances that are featured at the premises qualify as musical arts performances, rather than as more generalized amusement or entertainment activities that fall within the broad sweep of the tax. We disagree.

It is well established that a taxpayer bears the burden of proving any exemption from taxation (see Matter of Grace v New York State Tax Commn., 37 NY2d 193, 195 [1975]). “Furthermore, in construing a tax exemption statute, the well-settled rule is that £[i]f ambiguity or uncertainty occurs, all doubt must be resolved against the exemption’ ” (Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d 578, 582 [2006]). This is so because “an exemption is not a matter of right, but is allowed only as a matter of legislative grace” (Matter of Grace v New York State Tax Commn., 37 NY2d at 196). Thus, a determination by the Tax Appeals Tribunal that a taxpayer does not qualify for a tax exemption should not be disturbed “unless shown to be erroneous, arbitrary or capricious” (id. at 195-196).

In order for petitioner to be entitled to the exclusion for “dramatic or musical arts performances,” it was required to prove that the fees constituted admission charges for performances that were dance routines qualifying as choreographed performances. Petitioner failed to meet this burden as it related to the fees collected for the performances in so-called “private rooms”; none of the evidence presented depicted such performances and petitioner’s expert’s opinion was not based on any personal knowledge or observation of “private” dances that happened at petitioner’s club. Thus, the Appellate Division properly concluded that the activities conducted in the private rooms failed to qualify for the exemption.

Further, it was not arbitrary, capricious or an error of law for the Tax Appeals Tribunal to find that petitioner failed to meet the same burden as it pertained to the admission charges for the stage performances. The Tribunal discredited the expert’s opinion that the routines qualified as choreographed performances, a determination well within its province (see generally Matter of Di Maria v Ross, 52 NY2d 771 [1980]). The Tribunal articulated a rational basis for discrediting her; it found her testimony was compromised by her opinion that the private performances were the same as the main stage performances despite the fact that she neither observed nor had personal knowledge of what occurred in the private areas.

Clearly, it is not irrational for the Tax Tribunal to decline to extend a tax exemption to every act that declares itself a “dance performance.” If ice shows presenting pairs ice dancing performances, with intricately choreographed dance moves precisely arranged to musical compositions, were not viewed by the legislature as “dance” entitled a tax exemption, surely it was not irrational for the Tax Tribunal to conclude that a club presenting performances by women gyrating on a pole to music, however artistic or athletic their practiced moves are, was also not a qualifying performance entitled to exempt status. To do so would allow the exemption to swallow the general tax since many other forms of entertainment not specifically listed in the regulation will claim their performances contain tax-exempt rehearsed, planned or choreographed activity.

Because we conclude that the charges and fees were taxable under Tax Law § 1105 (f) (1), we need not consider whether petitioner met its burden that the admission charges were not subject to tax pursuant to section 1105 (f) (3) of the Tax Law.

Petitioner’s remaining constitutional argument is unavailing.

Smith, J. (dissenting).

The ruling of the Tax Appeals Tribunal, which the majority upholds, makes a distinction between highbrow dance and lowbrow dance that is not to be found in the governing statute and raises significant constitutional problems. I therefore dissent.

The dispositive question is whether the charges the State seeks to tax are paid for admission to a “choreographic . . . performance” (Tax Law § 1101 [d] [5]). I find it clear that the legislature used “choreographic” in its statutory definition of “[d]ramatic or musical arts admission charge” merely as a synonym for “dance.” Strictly speaking, it is true, not all dance is choreographed—some may be improvised—but it is absurd to suggest (and I do not read the majority opinion to suggest) that the legislature meant to tax improvised dance while leaving choreographed dance untaxed. In any event the record shows, without contradiction, that the performances here were largely planned, not improvised.

That the statutory word “choreographic” simply means “dance” is confirmed by a regulation of the Department of Taxation and Finance. The regulation gives this example of “[a]dmissions excluded from tax”:

“A theatre in the round has a show which consists exclusively of dance routines. The admission is exempt since choreography is included within the term musical arts” (20 NYCRR 527.10 [d] [2] [example 4]).

The regulation assumes that “choreography” includes all “dance routines”—it does not matter what kind of dancing is being done.

Thus, the only question in the case is whether the admission charges that the State seeks to tax were paid for dance performances. There is not the slightest doubt that they were. That is proved by the video introduced into evidence before the Tribunal, and the testimony of two witnesses, an executive of petitioner and a dancer, with personal knowledge. The people who paid these admission charges paid to see women dancing. It does not matter if the dance was artistic or crude, boring or erotic. Under New York’s Tax Law, a dance is a dance.

The majority, and the Tribunal, have implicitly defined the statutory words “choreographic . . . performance” to mean “highbrow dance” or “dance worthy of a five-syllable adjective.” The admission charges for these performances are taxable because the performances are, in the majority’s view, not “cultural and artistic” (majority mem at 1060). The Tribunal took a similar view, finding that the dancers did not put the care into their efforts that high art requires: “We question how much planning goes into attempting a dance seen on YouTube,” the Tribunal remarked. It is undisputed that the dancers worked hard to prepare their acts, and that pole dancing is actually quite difficult, but the Tribunal decided that they were not artists, but mere athletes: “[T]he degree of difficulty is as relevant to a ranking in gymnastics as it is [in] dance.” The Tribunal seems to have missed the point that “ranking,” either of gymnasts or dancers, is not the function of a tax collector.

The majority implies that since the legislature did not exclude from the entertainment tax other lowbrow forms of entertainment, such as baseball games and animal acts (see majority mem at 1059), it would not have wanted to exclude pole dancing; but the issue is not what the legislature would have wanted to do, but what it did. If the legislature wanted to tax all “choreographic . . . performances” except pole dancing, it could (assuming there are no constitutional problems) have said so, but the Tribunal has no authority to write that exception into the statute. And if, as the majority claims, a Department regulation purports to extend the tax to ice shows with “intricately choreographed dance moves” (majority mem at 1061), that is a problem with the regulation. It does not change the statute.

Since I view the only question—an extremely easy question—to be whether these women were dancing or not, I find the expert testimony in this case entirely irrelevant. It was perhaps a mistake for petitioner to call an expert, in an attempt to impress the Tribunal with the cultural value of the entertainment that its juice bar provides. I find the majority’s and the Tribunal’s discussions of the expert’s testimony unfair—indeed, the Tribunal’s discussion (which says the testimony came in through a “continuous stream of leading questions”) is simply inaccurate. But it does not matter, because the expert’s testimony was superfluous.

Like the majority and the Tribunal, I find this particular form of dance unedifying—indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently “cultural and artistic.” That sort of discrimination on the basis of content would surely be unconstitutional (see Arkansas Writers’ Project, Inc. v Ragland, 481 US 221, 229-230 [1987]). It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.

Judges Ciparick, Graffeo, Pigott and Jones concur; Judge Smith dissents in an opinion in which Chief Judge Lippman and Judge Read concur.

Judgment affirmed, with costs, in a memorandum.


text:
    Ampul Electric, Inc., Appellant, v Village of Port Chester et al., Respondents.
    Submitted July 30, 2012;
    decided October 23, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Respondents.
    Decided October 23, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Cadlerock Joint Venture, L.P., Respondent, v Sol Greenberg & Sons International, Inc., et al., Defendants. Joseph Sahid, Esq., Nonparty Appellant.
    Submitted August 13, 2012;
    decided October 23, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Richard E. Dutrow, Appellant, v New York State Racing and Wagering Board, Respondent.
    Decided October 23, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Dale Kleinser, Appellant, v Mark Astarita et al., Respondents.
    Submitted August 13, 2012;
    decided October 23, 2012
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no substantial constitutional question is directly involved.


text:
    Dwayne Moore, Appellant, v Federated Department Stores, Inc., et al., Respondents.
    Decided October 23, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Oddo Asset Management, Appellant, v Barclays Bank PLC et al., Respondents, et al., Defendants.
    Submitted August 13, 2012;
    decided October 23, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 584 (2012)].


text:
    In the Matter of Donald Rozz, Appellant, v Nassau County Department of Assessment et al., Respondents.
    Decided October 23, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Samuel S. et al., Appellants. Helene S., Respondent.
    Submitted August 13, 2012;
    decided October 23, 2012
   Motion for leave to appeal dismissed, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    [979 NE2d 1147, 955 NYS2d 821]
    In the Matter of Town of Wallkill, Respondent, v Civil Service Employees Association, Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Department Unit, Orange County Local 836), et al., Respondents, and Town of Wallkill Police Officers’ Benevolent Association, Inc., Appellant.
    Argued September 13, 2012;
    decided October 25, 2012

      APPEARANCES OF COUNSEL

      Law Offices of John K. Grant, P.C., Newburgh (John M. Crotty and John K. Grant of counsel), for appellant.

      Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh (Joseph G. McKay of counsel), for Town of Wallkill, respondent.

      David P. Quinn, Albany, for New York State Public Employment Relations Board, amicus curiae.

      Ennio J. Corsi, General Counsel, Albany, and Christine Caputo Granich, for New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

Since 1995, a collective bargaining agreement (CBA) has been in place between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers’ Benevolent Association, Inc. (Wallkill PBA). Pursuant to the CBA, police officers subject to discipline by the Town have the right to a hearing before a neutral arbitrator. In 2007, however, the Town adopted Local Law No. 2-2007 of the Town of Wallkill (codified as Code of Town of Wallkill, ch 42, art II, § 42-3 et seq.) which sets forth disciplinary procedures for police officers different than those outlined in the CBA. Local Law No. 2 does not allow for arbitration, but rather requires a Town Board member or a designee of the Town Board to conduct a hearing addressing disciplinary charges preferred against a police officer and to issue a decision with recommended findings of fact and a suggested disciplinary penalty. Local Law No. 2 vests the Town Board with the authority to review the individual hearing officer’s recommendations, render a final determination of the charges and impose a penalty “consistent with the provisions of the New York State Town Law” (Code of Town of Wallkill § 42-8). Such determination is subject to review by way of a CPLR article 78 proceeding in Supreme Court.

Shortly after the Town enacted Local Law No. 2, it initiated disciplinary action against two police officers. Wallkill PBA filed requests for arbitration on behalf of the police officers. In turn, the Town commenced a CPLR article 75 proceeding seeking to permanently stay arbitration and for a judgment declaring that Local Law No. 2 is valid. Wallkill PBA and the police officers cross-petitioned to compel arbitration and counterclaimed for a judgment declaring Local Law No. 2 invalid.

Supreme Court denied the Town’s petitions and granted the cross petitions. The court declared Local Law No. 2 invalid “insofar as inconsistent with the disciplinary provisions of’ the CBA and vacated the disciplinary actions taken against the police officers. Supreme Court further directed the parties to proceed to arbitration. Citing to our decision in Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed (84 AD3d 968 [2d Dept 2011]).

We agree that Matter of Patrolmen’s Benevolent Assn. is dis-positive. There, we confronted the “tension between the strong and sweeping policy of the State to support collective bargaining under the Taylor Law” and “the policy favoring strong disciplinary authority for those in charge of police forces” (Matter of Patrolmen’s Benevolent Assn., 6 NY3d at 571 [internal quotation marks and citation omitted]). We held “that police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials” (id. at 570).

In so holding, we observed that Civil Service Law §§75 and 76 generally govern “the procedures for disciplining public employees, including police officers,” and where applicable, “police discipline may be the subject of collective bargaining” {id. at 573). However, Civil Service Law § 76 (4) states that “[njothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local” preexisting laws (emphasis added; see Matter of Patrolmen’s Benevolent Assn., 6 NY3d at 573).

Applying our holding in Matter of Patrolmen’s Benevolent Assn. to the facts in this case, we conclude that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law § 155. Town Law § 155, a general law enacted prior to Civil Service Law §§ 75 and 76, commits to the Town “the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department.” Accordingly, the subject of police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and Wallkill PBA.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs, in a memorandum.


author: Memorandum. Ciparick, J. (dissenting).

text:
    [979 NE2d 1150, 955 NYS2d 823]
    In the Matter of County of Erie, Respondent, v Civil Service Employees Association, Local 815, Appellant.
    Argued September 12, 2012;
    decided October 25, 2012
    APPEARANCES OF COUNSEL

      Lipsitz Green Scime Cambria LLP, Buffalo (Diane M. Perri Roberts and Kenneth E. Webster of counsel), for appellant.

      Schrader, Israely, DeLuca & Waters LLP, Getzville (R. Scott DeLuca of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On June 9, 2009, the Civil Service Employees Association, Local 815 (CSEA) filed a grievance on behalf of unnamed employees of the Erie County Board of Elections (the Board), alleging that the collective bargaining agreement (CBA) between Erie County (the County) and CSEA was violated when the Board modified the work hours of employees assigned to school district elections in May 2009 in a way that deprived these employees of overtime compensation. After the Board denied the grievance, CSEA notified the County of its intent to arbitrate the dispute, prompting the County to move for a stay. Supreme Court granted the County’s motion and denied CSEA’s cross motion to compel arbitration. Upon CSEA’s appeal, the Appellate Division affirmed (82 AD3d 1633 [4th Dept 2011]), as do we.

Section 3-300 of the Election Law vests every board of elections with exclusive power to

“appoint, and at its pleasure remove, clerks, voting machine technicians, custodians and other employees, fix their number, prescribe their duties, fix their titles and rank and establish their salaries within the amounts appropriated therefor by the local legislative body and shall secure in the appointment of employees of the board of elections equal representation of the major political parties.”

“By enacting [section 3-300], the Legislature furthered the constitutional mandate of bipartisan participation in the functions of boards of elections and vested [them] with complete and exclusive control of their personnel and the performance of their duties in that highly sensitive governmental area” (County of Chautauqua v Chautauqua County Employees’ Unit 6300 of Local 807 of Civ. Serv. Employees’ Assn., Local 1000, AFSCME, AFL-CIO, 181 AD2d 1052, 1052 [4th Dept 1992] [citation omitted]).

In County of Chautauqua, Supreme Court vacated an arbitrator’s award in favor of an elections technician let go by the county board of elections. The Appellate Division affirmed in light of section 3-300, concluding that the county could not negate or restrict the county board of elections’ statutory removal powers by way of collective bargaining (see also Matter of Board of Elections of County of Westchester v O’Rourke, 210 AD2d 402 [2d Dept 1994] [deciding that, in view of section 3-300, the board of elections was not required to comply with the job posting procedures in the CBA between the county and the public employees’ union, and declining to issue a broader declaration with respect to application to the board’s employees of provisions in the CBA]). Similarly, the Board’s scheduling of its employees’ work shifts on election day so as to provide adequate coverage from the time the polls opened at 7:00 a.m. until 10:00 p.m., about an hour after the polls closed, without incurring overtime payment obligations falls within its authority under section 3-300 to “prescribe [its employees’] duties . . . and establish their salaries within the amounts appropriated therefor by the local legislative body.”

Ciparick, J. (dissenting).

Because I believe section 3-300 of the Election Law does not preclude the County of Erie (the County) and the Civil Service Employees Association, Local 815 (CSEA) from negotiating the terms of overtime compensation for unnamed employees of the Erie County Board of Elections (the Board) in a collective bargaining agreement (CBA), I respectfully dissent.

Election Law § 3-300, titled “Board employees; appointment,” provides:

“[e]very board of elections shall appoint, and at its pleasure remove, clerks, voting machine technicians, custodians and other employees, fix their number, prescribe their duties, fix their titles and rank and establish their salaries within the amounts appropriated therefor by the local legislative body and shall secure in the appointment of employees of the board of elections equal representation of the major political parties.”

The majority construes the Board’s statutory authority to “prescribe [its employees’] duties . . . and establish their salaries within the amounts appropriated therefor by the local legislative body” (majority mem at 1072, quoting Election Law § 3-300) to encompass control of overtime compensation. I disagree with this overly broad interpretation and would conclude that overtime compensation falls outside the scope of the statute.

The majority’s reliance on County of Chautauqua v Chautauqua County Employees’ Unit 6300 of Local 807 of Civ. Serv. Employees’Assn., Local 1000, AFSCME, AFL-CIO (181 AD2d 1052 [4th Dept 1992]) and Matter of Board of Elections of County of Westchester v O’Rourke (210 AD2d 402 [2d Dept 1994]) is misplaced. County of Chautauqua stands for the narrow proposition that the terms of a CBA cannot interfere with the county board of elections’ removal powers under section 3-300 of the Election Law (see 181 AD2d at 1052). O’Rourke similarly stands for the limited proposition that a provision in a CBA requiring the board of elections to post its vacancies is unenforceable because such provision would necessarily usurp the board of elections’ authority to appoint its employees under section 3-300 (see 210 AD2d at 402). Since the provision in the CBA at issue here relates to overtime compensation and implicates neither the Board’s section 3-300 appointment nor removal powers, these cases lend no support to the majority’s position.

In my view, overtime compensation is better understood as a benefit, like health care or vacation leave, that is clearly a proper subject of negotiation between the County and CSEA in the CBA. Accordingly, since the terms of this CBA concerning overtime compensation do not contravene the Board’s section 3-300 enumerated powers, I would reverse the order of the Appellate Division and grant CSEA’s motion to compel the County to arbitrate the subject grievance.

Judges Graffeo, Read, Smith, Pigott and Jones concur; Judge Ciparick dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

Order affirmed, with costs, in a memorandum.

       Indeed, it should be noted that CSEA has negotiated on behalf of the unnamed employees of the Board since at least 1971. The overtime compensation provision in the CBA was last negotiated by the County and CSEA in October 2004.


text:
    [979 NE2d 802, 955 NYS2d 543]
    Ricky D. West et al., Respondents, v Mark Hogan et al., Appellants and Third-Party Plaintiffs-Appellants. David Vande-Water, Third-Party Defendant-Respondent.
    Decided October 25, 2012

      APPEARANCES OF COUNSEL

      Colucci & Gallaher, P.C., Buffalo (Paul G. Joyce of counsel), for appellants.

      Conboy, McKay, Bachman & Kendall, LLP, Watertown (Peter L. Walton of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. The courts below did not err as a matter of law in awarding punitive damages (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.