source: Caselaw Access Project

author: Pigott, J. Graffeo, J.

license: Public Domain

text:
    [3 NE3d 1128, 980 NYS2d 880]
    Linda P. Nash, Appellant, v The Port Authority of New York and New Jersey, Respondent.
    Argued October 9, 2013;
    decided November 26, 2013

      POINTS OF COUNSEL

      Louis A. Mangone, New York City, for appellant.
    I. When the Port Authority of New York and New Jersey decided, very deliberately, to not seek leave to appeal the Appellate Division’s affirmance of Linda R Nash’s final judgment to this Court it also, very deliberately (a) allowed Ms. Nash’s final judgment to become res judicata on the merits of her claim against it, to wit, “a conclusive determination” of all “questions of both law and fact there litigated,” “the legal effect” of which could not be “destroyed] or diminish[ed]” even if it “was erroneous,” (b) waived and abandoned its pursuit of an order reversing the April 29, 2008 interim order of the Appellate Division in Ms. Nash’s case, and all claims of error in her final judgment, (c) deprived this and all other courts of subject matter jurisdiction to “destroy or diminish” it, and (d) put an end to Ms. Nash’s case. (Lacks v Lacks, 41 NY2d 71; Slater v American Min. Spirits Co., 33 NY2d 443; Sears, Roebuck & Co. v 9 Ave.-31 St. Corp., 274 NY 388; Bray v Cox, 38 NY2d 350; Matter of Huie [Furman], 20 NY2d 568; Deeves v Fabric Fire Hose Co., 19 AD2d 735, 14 NY2d 633; Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637; Ocean Acc. & Guar. Corp. v Otis El. Co., 291 NY 254; Pollak v Port Morris Bank, 257 NY 287; People v Thomas, 47 NY2d 37.) II. This Court’s September 22, 2011 decision in Ruiz (17 NY3d 428 [2011]) was not a decision in Linda E Nash’s case, where the Port Authority of New York and New Jersey voluntarily abandoned its pursuit of an order reversing the Appellate Division’s April 29, 2008 interim order that separately affirmed the Port Authority’s liability to her on her claim, did not, and could not have been, intended to apply to Ms. Nash’s previously affirmed final judgment, and could not serve as a predicate for any motion for relief from Ms. Nash’s affirmed final judgment under CPLR 5015 (a) (5). (Parker v Rogerson, 35 NY2d 751; Deeves v Fabric Fire Hose Co., 14 NY2d 633; Matter of Huie [Furman], 20 NY2d 568; Sears, Roebuck & Co. v 9 Ave.-31 St. Corp., 274 NY 388; Gager v White, 53 NY2d 475; Firestone Tire & Rubber Co. v Risjord, 449 US 368; Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739; Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364; People v Thomas, 47 NY2d 37; Slater v American Min. Spirits Co., 33 NY2d 443.)

      Weil, Gotshal & Manges LLP, New York City (Gregory Silbert, Richard A. Rothman and Karin Portlock of counsel), and Goldberg Segalla LLP, Garden City for respondent.
    I. The Supreme Court properly granted the Port Authority of New York and New Jersey’s motion to vacate the judgment. (Lacks v Lacks, 41 NY2d 71; Woodson v Mendon Leasing Corp., 100 NY2d 62; Maddux v Schur, 53 AD3d 738; Patron v Patron, 40 NY2d 582; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831; People v Guay, 18 NY3d 16; Matter of Huie [Furman], 20 NY2d 568; Levitt v County of Suffolk, 166 AD2d 421; Matter of Grossman v Ilowitz, 72 AD3d 821; Dupkanicova v James, 17 AD3d 627.) II. Linda E Nash’s remaining assertions would not constitute error as a matter of law and are false in any event.

       Designated pursuant to NY Constitution, article VI, § 2.

   OPINION OF THE COURT

Pigott, J.

In Matter of World Trade Ctr. Bombing Litig. (17 NY3d 428 [2011]) (Ruiz), we held that the governmental immunity doctrine insulated the Port Authority of New York and New Jersey (Port Authority) from tortious liability for injuries sustained in the 1993 World Trade Center bombing (id. at 455). Four days after our decision in Ruiz was published, the Port Authority moved by order to show cause to vacate the $4.4 million judgment of plaintiff, Linda P Nash, which had been entered on January 15, 2010. The Nash judgment had become final as of July 13, 2011 due to the failure of the Port Authority to appeal to this Court from the order of the Appellate Division entered June 2, 2011 affirming that judgment (85 AD3d 414 [1st Dept 2011]).

The Port Authority moved to vacate the judgment pursuant to CPLR 5015 and Supreme Court’s “inherent powers.” As relevant here, CPLR 5015 (a) provides that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of: . . . (5) reversal, modification or vacatur of a prior judgment or order upon which it is based.” Supreme Court granted the Port Authority’s motion to vacate the judgment, stating that the Ruiz holding “eviscerate[d] any judgment, holding or finding of liability” against the Port Authority, and “require [d]” Supreme Court to find that the Port Authority was “insulated from tortious liability” (2012 NY Slip Op 33401 [U], *1 [2012]).

A divided Appellate Division affirmed, with the majority holding that Supreme Court “did not abuse its discretion by vacating [Nash’s] final judgment,” given this Court’s determination in Ruiz (102 AD3d 420, 421 [1st Dept 2013]). The dissenting Justices, however, reasoned that because Nash’s judgment had become final once the Port Authority failed to appeal from the June 2, 2011 order, it could not avoid its enforcement and had abandoned any claim that it was not liable to Nash (id. at 424). Nash then appealed to this Court as of right.

Nash claims that Supreme Court lacked jurisdiction to vacate her judgment under CPLR 5015 (a) (5) because the Port Authority failed to timely appeal to this Court from the June 2, 2011 Appellate Division order affirming her judgment on both liability and damages, thereby rendering her judgment a final one beyond the scope of review. Both parties, as well as the majority and dissent in the Appellate Division, rely on McMahon v City of New York (105 AD2d 101 [1st Dept 1984]) in support of their respective arguments. In McMahon, the City sought to vacate the judgment, which was based on the same liability determination following a joint trial on liability, that we reversed in O’Connor v City of New York (58 NY2d 184 [1983]). Our decision in O’Connor was released while McMahon’s appeal to the Appellate Division on an issue related to damages was still pending. However, under the facts of this case, McMahon is inapplicable.

In McMahon, the City failed to take any further action on the pending McMahon appeal. Instead, with two days remaining on its time to perfect, the City moved to reargue the original liability determination and for an extension of time to perfect its appeal. The Appellate Division denied that motion “without prejudice to applications for appropriate postjudgment relief in the Supreme Court in light of O’Connor v City of New York” (McMahon, 105 AD2d at 103-104). The City then moved to vacate the judgment pursuant to CPLR 5015 (a) (5). The motion court denied the motion because the Appellate Division had dismissed the McMahon appeal. However, the Appellate Division reversed, granted the motion to vacate and dismissed the complaint, stating that “the McMahon case was still in the direct appeal process” and the court’s “without prejudice” language specifically gave the City the opportunity to make a postjudgment motion (id. at 103-104). The dismissal of the appeal itself did not prohibit the City from seeking whatever post-judgment relief it could obtain from Supreme Court, including relief pursuant to CPLR 5015 (a).

Here, we agree with Nash that her judgment had, in fact, become final when the Port Authority failed to appeal within the requisite time period. But the discussion does not end there. Although a court determination from which an appeal has not been taken should “remain inviolate,” that rule applies “[a]bsent the sort of circumstances mentioned in CPLR 5015” (Matter of Huie [Furman], 20 NY2d 568, 572 [1967]; see Lacks v Lacks, 41 NY2d 71, 74-75 [1976] [stating that objections made pursuant to CPLR 5015 (a) (4) survive a final judgment]; see also Third Preliminary Rep of Advisory Comm on Prac and Pro, 1959 NY Legis Doc No. 17 at 204-205 [stating that proposed CPLR 50.5 (a), later renumbered 5015 (a), applies to “(the) setting aside (of) final judgments”]). Moreover, as Professor Siegel has observed,

“[i]f a judgment for which preclusive effect is sought is itself based on an earlier judgment . . . , and the earlier one has been vacated or reversed or otherwise undone, it is of course divested of its finality and the remedy to cancel the second judgment is a motion to vacate it on the ground of the undoing of the first” (Siegel, NY Prac § 444 at 776 [5th ed 2011] [emphasis supplied], citing CPLR 5015 [a] [5]).

Paragraph (5) of section 5015 (a) is applicable where the reversed, modified or vacated judgment or order is the basis for a later judgment—not where it merely compelled the result as a matter of collateral estoppel or stare decisis, but where it was actually entered in the same lawsuit as, and led directly to, the later judgment. Thus, section 5015 (a) (5) applies in a case like this one where a joint trial on liability results in a single order entered in two cases, and where, after a separate trial on damages in one of the cases, that order is reversed on appeal. Here, when Ruiz was appealed to this Court pursuant to CPLR 5602 (a) (1) (ii) (bringing up for review the liability order previously entered in both Ruiz and Nash), Nash submitted a brief and participated in the June 1, 2011 argument. However, after the judgment in her appeal became final on July 13, 2011, she chose not to participate when the Ruiz appeal was reargued in August 2011.

Section 5015 applies not only to judgments that are still in the appellate process, as in McMahon, but also to those in which appellate review has been exhausted. Save for the one-year requirement in section 5015 (a) (1) concerning excusable defaults, motions made pursuant to paragraphs (2), (3) and (5) contain no limitation of time, only a requirement that the time within which the motion is made be “reasonable” (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5015:3). The determination as to whether such a motion has been made within a reasonable time is within the motion court’s discretion (see Third Preliminary Rep of Advisory Comm on Prac and Pro, 1959 Legis Doc No. 17 at 205). Notably, section 5015 does not distinguish between final and nonfinal judgments, or those that have or have not exhausted the appeals process. Therefore, Nash’s contentions that Supreme Court was precluded from entertaining the motion or lacked jurisdiction to vacate the judgment are without merit.

Here, the prior liability order upon which Nash’s judgment was based was reversed by this Court in Ruiz. Nonetheless, section 5015 (a) makes clear that the motion court’s determination to vacate a judgment is a discretionary one. It “may relieve” a litigant from a judgment “upon such terms as may be just.” This language applies to all five of the enumerated CPLR 5015 (a) paragraphs, in addition to qualifying the court’s common-law ability to grant relief from a judgment in the interests of justice (see Ladd v Stevenson, 112 NY 325, 332 [1889]). In exercising its discretion, the motion court should “consider the facts of the particular case, the equities affecting each party and others affected by the judgment or order, and the grounds for the requested relief” (Weinstein-Korn-Miller, NY Civ Prac ¶ 5015.03 at 50-284).

Here, Supreme Court’s only finding was that this Court’s decision in Ruiz “eviscerate[d] any judgment, holding or finding of liability involving tortious liability on behalf of the Port Authority,” and therefore “require[d]” Supreme Court to find the Port Authority insulated from tortious liability pursuant to CPLR 5015 (a) (5) (2012 NY Slip Op 33401[U], *1 [2012]). It also appeared to believe that once the Port Authority had demonstrated that the Ruiz holding reversed the earlier liability determination to which Nash was a party, Supreme Court had no choice but to grant the Port Authority’s vacatur motion. That was error.

Our holding in Ruiz did not divest Supreme Court of its authority to review the equities with respect to these parties in determining whether to vacate the judgment, nor did it mandate that the court considering a CPLR 5015 (a) motion grant the motion by rote. Similarly, the Appellate Division, which possessed the authority to review Supreme Court’s determination, could have conducted its own independent analysis of the pertinent facts, but it failed to do so, holding only that “[t]he motion court did not abuse its discretion by vacating a final judgment” pursuant to CPLR 5015 (a) (5) (102 AD3d at 421). But, here, Supreme Court exercised no discretion, “because it erroneously perceived that it had no discretion to exercise” (see People v Cronin, 60 NY2d 430, 433 [1983]).

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

Graffeo, J.

(dissenting in part). All six of us agree that the Appellate Division order affirming the vacatur of plaintiff’s judgment must be reversed. The majority concludes that the appropriate corrective action is to remit this case to Supreme Court to permit consideration of the Port Authority’s vacatur application anew. Because I believe that Supreme Court lacked discretion to vacate the Nash judgment under the circumstances presented, I would reverse the order of the Appellate Division and deny the motion to vacate. In my view, the majority misunderstands the purpose of CPLR 5015 (a) (5) and interprets the statute in a manner that offends well-settled principles concerning the finality of judgments for which appellate rights have been exhausted.

I begin with some fundamentals. A party that appeals in a particular case can obtain relief while a party that fails to do so cannot, even if the nonappealing party had preserved the same meritorious argument and would have prevailed had an appeal been taken (Hecht v City of New York, 60 NY2d 57 [1983]; People v Caminito, 3 NY2d 596 [1958], cert denied sub nom. Noia v People of the State of New York, 357 US 905 [1958] [where defendant did not appeal, he could not bring coram nobis proceeding seeking vacatur of conviction raising issue on which codefendants had prevailed on appeal]). We generally do not reward litigants for failing to assert arguments in a timely fashion— with few exceptions, claims not promptly advanced are deemed waived or forfeited and this proposition applies to the right to seek reversal of a judgment on the ground that it is erroneous on the facts or law (i.e., the type of argument made on direct appeal).

Once a judgment is final (either because appellate rights have been exhausted or a party has failed to timely pursue them), it is generally binding as between the parties with respect to any legal or factual issue they had a full and fair opportunity to litigate (see generally Bray v Cox, 38 NY2d 350 [1976] [dismissal of interlocutory appeal for failure to prosecute bars later attempt to raise the same issue on appeal from final judgment]; Slater v American Min. Spirits Co., 33 NY2d 443 [1974] [a party cannot seek reargument or renewal after the time to appeal the order has expired]). Simply stated, when a party allows its appellate rights to lapse, it forfeits the right to challenge any issue it could have raised on direct appeal. The majority does not explain why these principles are inapplicable here—I find them to be dispositive. From the moment the Port Authority’s time to pursue an appeal from the Appellate Division order affirming the Nash judgment expired, it was foreclosed from pursuing (through a vacatur application or otherwise) any issue that it could have raised in that appeal—including the governmental function immunity defense.

Nothing in CPLR 5015 (a) suggests otherwise. That statute permits a party to seek vacatur of a judgment or order on one of five grounds: (1) excusable default; (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of the adverse party; (4) the issuing court lacked subject matter jurisdiction over the controversy; or—as relevant here—(5) “reversal, modification or vacatur of a prior judgment or order upon which it is based.” In a case where a motion is brought under one of the first three paragraphs, the grounds for vacatur will, by definition, be distinct from any argument the losing party could have raised in a direct appeal from the judgment (if one was available). A default judgment is not appealable (see CPLR 5511; see Lauer v City of Buffalo, 53 AD3d 213 [4th Dept 2008]) and cannot be vacated absent the creation of a factual record explaining the circumstances giving rise to the default and supplying a good excuse. Likewise, a judgment cannot be attacked on direct appeal on the basis of newly-discovered evidence or fraud—these grounds for vacatur must be adjudicated in a collateral proceeding (rather than an appeal) because they also require development of a new factual record.

When vacatur is sought on grounds that could not have been asserted in a direct appeal from the judgment, judgment finality principles would not bar such an application, even if appellate rights have lapsed, because the proponent of the motion could not have had a full and fair opportunity to litigate the issue in the prior proceeding. Particularly where a judgment has been obtained by fraud, it would be perverse to preclude a collateral attack under CPLR 5015 (a) on the rationale that the party against whom the judgment was obtained exhausted appellate rights prior to discovering the misconduct.

It follows, therefore, that a vacatur application can sometimes properly involve a final judgment (one for which appellate rights have expired)—without offending well-settled law. That is why it is no surprise that the majority is able to cite statements by the drafters of the provision and this Court indicating, as a general proposition, that CPLR 5015 (a) can result in “[the] setting aside [of] final judgments” (see Third Preliminary Rep of Advisory Comm on Prac and Pro, 1959 Legis Doc No. 17 at 204-205 [referencing predecessor to CPLR 5015 (a)]; see also Matter of Huie [Furman], 20 NY2d 568, 572 [1967]).

This truism is also evident from our analysis in Lacks v Lacks (41 NY2d 71 [1976]), in which we entertained a CPLR 5015 (a) (4) vacatur application even though the proponent had exhausted her right to challenge the judgment on appeal. We did not, however, rely on any broad holding that all judgments are subject to vacatur regardless of the circumstances as the majority now suggests. Rather, in Lacks we focused on the fact that the proponent alleged that the court issuing the judgment lacked subject matter jurisdiction, explaining: “it is blackletter law that a judgment rendered without subject matter jurisdiction is void, and that the defect may be raised at any time and may not be waived” (id. at 75). Since subject matter jurisdiction is a nonwaivable jurisdictional defect, it presents a limited exception to the finality principles addressed above and, hence, there is no bar to adjudication of that question at any time, even after appellate rights have lapsed. No comparable issue is presented here.

The controversy in this case—whether the Port Authority could vacate the Nash judgment based on a legal issue that could have been adjudicated on direct appeal, despite expiration of its appellate rights—presents a question of first impression. But the majority does not directly address the issue, stating, in conclusory fashion, that all final judgments are subject to vacatur under CPLR 5015 (a). I see nothing in the statute indicating that the general rules relating to judgment finality do not apply when, as is the case here, a party seeks to vacate a judgment on grounds that could have been raised on direct appeal and for which appellate rights have lapsed; CPLR 5015 (a) (5) does not include a “notwithstanding” clause suggesting a legislative intent to permit vacatur in every circumstance, even if it would otherwise be barred by law.

Unlike subject matter jurisdiction—an issue that is nonwaivable and can be raised by any party at any time in any forum— the Port Authority sought vacatur of the Nash judgment based on an issue that was waivable (a defense founded on governmental function immunity), that had actually been litigated during the Nash action, and that would have been reviewable on direct appeal (indeed, the Port Authority’s arguments were considered and rejected by the Appellate Division in two interlocutory appeals). The Port Authority could have asserted its challenge to the governmental function immunity defense in this Court in an appeal from the Nash judgment had it timely filed a motion for leave to appeal from the First Department’s order of affirmance—but it failed to do so. In other contexts, courts have held that a party that neglected to timely pursue an appeal cannot circumvent appellate time restrictions by pursuing a CPLR 5015 (a) motion requesting the same relief that would have been available in a timely appeal (see Pergamon Press v Tietze, 81 AD2d 831 [2d Dept 1981], appeal dismissed 54 NY2d 605 [1981]). A party whose appellate rights have terminated should not be permitted to revive them via a vacatur application.

Nor should a party who failed to appeal be permitted to upset a judgment using an order obtained in an appeal from a judgment involving a different party—and nothing in CPLR 5015 (a) (5) is to the contrary. The statute permits vacatur of a judgment based on “reversal, modification or vacatur of a prior judgment or order upon which it is based”—language suggesting that the judgment reversed should involve the same parties, if not the same lawsuit. This view of the statute is consistent with precedent. In most of the Appellate Division cases addressing this provision, the party that secured the judgment under attack was also a party to the appeal or other proceeding that resulted in reversal of the prior underlying order (see e.g. Matter of Grossman v Ilowitz, 72 AD3d 821 [2d Dept 2010], lv denied 20 NY3d 853 [2012]; Dupkanicova v James, 17 AD3d 627 [2d Dept 2005]; Aces Mech. Corp. v Cohen Bros. Realty & Constr. Corp., 136 AD2d 503 [1st Dept 1988]). The legal issue underlying the reversal order was litigated on the merits by that party in an appropriate forum—an appeal or other noncollateral proceeding. CPLR 5015 (a) (5) simply provided an efficient vehicle for the opposing litigant to apply that result to a subsequent judgment in the same case or a related proceeding involving the same party.

In this case, CPLR 5015 (a) (5) is being applied far more expansively to permit the Port Authority to potentially vacate a judgment obtained by Nash using an appellate reversal secured in an appeal from a judgment issued in a different plaintiffs case—the Ruiz appeal (see Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428 [2011], cert denied 133 S Ct 133 [2012]). There is only one other appellate decision in which CPLR 5015 (a) (5) was interpreted to allow such a result—McMahon v City of New York (105 AD2d 101 [1st Dept 1984]). Similar to this case, McMahon involved a mass tort claim in which there was a joint order on liability that was later reversed in an appeal involving another plaintiffs judgment. Even assuming it was correctly decided, McMahon is distinguishable because it does not present the same finality concerns that arise here.

The McMahon judgment was the subject of a pending direct appeal at the time we reversed the judgment in the other case—a fact heavily emphasized by the Appellate Division. Whether defendant perfected its appeal, or instead sought vacatur in a CPLR 5015 (a) proceeding, the result in McMahon would have been the same because appeals are generally decided based on the law in effect at the time they are heard. Under the doctrine of stare decisis, the defendant in McMahon (whose appeal was still pending) was entitled to the benefit of the more favorable precedent secured in the other case—it therefore made little difference whether that relief was obtained by perfecting the appeal or bringing a motion to vacate. Here, in contrast, the Port Authority was not entitled to take advantage of the precedent emanating from our decision in Ruiz because it allowed its appellate rights to lapse before we issued our ruling. Having failed to timely appeal, the Port Authority should not be permitted to benefit from a change in the law that occurred after the Nash judgment became final.

Moreover, to permit the Port Authority to vacate the final judgment in Nash based on relief it secured in Ruiz is the functional equivalent of granting relief to a nonappealing party. Ruiz and Nash brought separate actions against the Port Authority; although the cases were tried jointly for purposes of determining liability, they were never consolidated. The Port Authority’s appeal from the Ruiz judgment brought up for review the prior interlocutory verdict on liability but only to the extent that order necessarily affected the Ruiz judgment (CPLR 5501 [a] [1])—any interests other parties might have had in the validity of the interlocutory order were simply not before us.

The Port Authority’s assertion that our decision crediting the governmental immunity argument in the Ruiz appeal meant that the underlying liability determination was “extinguished” for all plaintiffs misunderstands appellate practice and our Court’s jurisdiction. If we were to follow that view to its logical conclusion, the Port Authority could use the Ruiz reversal to vacate judgments obtained against any plaintiff, years after the fact without limitation—even if it failed to appeal in any other case. This use of the statute was surely not intended by the drafters of CPLR 5015 (a) (5) and would raise significant due process concerns. On the other hand, there is no unfairness in requiring a party who failed to timely appeal to pay a judgment, even if it is later determined that some legal flaw in an earlier interlocutory order would have yielded relief had an appeal been timely pursued. Such a result is consistent both with the doctrine of finality and the plain language of CPLR 5015 (a) (5).

For all of these reasons, I conclude that Supreme Court lacked authority to vacate the Nash judgment under the circumstances presented, rendering a remittal inappropriate. Even were that not the case, vacatur of this judgment would not be warranted. Although plaintiff suffered her traumatic brain injuries in 1993—more than 20 years ago—she has yet to see a penny of her $5.2 million damages award. She is now nearly 70 years old—but the majority nonetheless remits this matter to give the Port Authority yet another opportunity to prevail on an issue that it forfeited when it failed to timely appeal the Appellate Division order of affirmance in July 2011. The Port Authority could (and should) have protected its interests by simply filing a motion for leave to appeal and I find no reasonable excuse for its failure to do so. Despite the fact that counsel for Nash filed a brief and participated in the first oral argument, I do not credit the contention that the Port Authority believed that we had therefore declared plaintiff a “party respondent” to the Ruiz appeal since our Court did not issue an order to that effect and would have had no statutory basis to do so (as the Port Authority noted at the time). The equities are in plaintiffs favor—but I fear there may still be no end in sight for Mrs. Nash. For all of these reasons, I respectfully dissent.

Judges Reajd, Smith and Scudder concur with Judge Pigott; Judge Graffeo dissents in part in an opinion in which Judge Peters concurs; Chief Judge Lippman and Judges Rivera and Abdus-Salaam taking no part.

Order reversed, with costs, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.


author: Rivera, J. Pigott, J.

text:
    [3 NE3d 674, 980 NYS2d 337]
    In the Matter of State of New York, Respondent, v Nelson D., Appellant.
    Argued October 15, 2013;
    decided November 26, 2013

      POINTS OF COUNSEL

      Marvin Bernstein, Mental Hygiene Legal Service, New York City (Diane Goldstein Temkin, Karen Gomes Andreasian, Sadie Zea Ishee and Deborah B Mantell of counsel), for appellant.
    I. Involuntary inpatient commitment pursuant to the outpatient strict and intensive supervision and treatment statute, Mental Hygiene Law § 10.11, violates a Mental Hygiene Law article 10 respondent’s substantive due process rights. (Kansas v Hendricks, 521 US 346; Foucha v Louisiana, 504 US 71; Matter of

      State of New York v Rashid, 25 Misc 3d 318, 68 AD3d 615, 16 NY3d 1; O’Connor v Donaldson, 422 US 563; Jackson v Indiana, 406 US 715; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Matter of State of New York v Myron P., 20 NY3d 206; State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645; Rodriguez v City of New York, 72 F3d 1051; Matter of Harry M., 96 AD2d 201.) II. By circumventing New York’s inpatient commitment procedures, the court deprived Nelson D. of procedural safeguards that would have met due process standards. (People v David W., 95 NY2d 130; Kansas v Hendricks, 521 US 346; Matter of Sidney JJ., 30 AD3d 959; Matter of Harry M., 96 AD2d 201; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Project Release v Prevost, 722 F2d 960; Matter of David B., 97 NY2d 267; Matter of State of New York v Johnson, 94 AD3d 1536; Mathews v Eldridge, 424 US 319; O’Connor v Donaldson, 422 US 563.)

      Eric T. Schneiderman, Attorney General, New York City (Leslie B. Dubeck, Barbara D. Underwood and Richard Dearing of counsel), for respondent.
    The civil management order comports with due process. (Matter of State of New York v Myron P., 20 NY3d 206; People v Knox, 12 NY3d 60; Kansas v Hendricks, 521 US 346; Kansas v Crane, 534 US 407; Matter of State of New York v Enrique T., 93 AD3d 158; Matter of David B., 97 NY2d 267; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500; Mills v Rogers, 457 US 291; Matter of George L., 85 NY2d 295.)
   OPINION OF THE COURT

Rivera, J.

In this Mental Hygiene Law article 10 proceeding, respondent Nelson D. (Nelson D.) appeals from an Appellate Division order that affirmed an amended Supreme Court order directing his involuntary commitment at the Valley Ridge Center for Intensive Treatment (Valley Ridge) pursuant to his designation as a sex offender requiring strict and intensive supervision and treatment (SIST). We conclude that article 10 does not permit confinement as part of SIST, and therefore we reverse.

L

The State filed an article 10 petition seeking to subject Nelson D., a convicted sex offender who suffers from mental retardation, to civil management. After a jury concluded that Nelson D. suffers from a mental abnormality as defined by the statute, Supreme Court held a dispositional hearing in accordance with article 10 to determine whether Nelson D. is a “dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision” (Mental Hygiene Law § 10.07 [f]).

At the hearing, the State and Nelson D. presented testimony of their respective experts discussing his condition and an appropriate dispositional outcome. Both experts stated that Nelson D. did not require confinement at a secure facility and that a SIST regimen was an appropriate outcome. However, the State’s expert recommended SIST in a structured setting, such as Valley Ridge, an inpatient facility operated by the Office for People with Developmental Disabilities (OPWDD). Nelson D.’s expert stated that Valley Ridge was too confining for a person with Nelson D.’s mental challenges.

Based on the testimony of the experts, the court concluded that the State failed to meet its statutory burden to establish by clear and convincing evidence that Nelson D. is a dangerous sex offender requiring confinement. Consequently, the court found that Nelson D. required SIST under Mental Hygiene Law § 10.11. The court ordered that he be released to the OPWDD to receive proper treatment corresponding to his cognitive functioning, and directed the parties to negotiate the remainder of the terms of SIST and submit a proposed settlement order.

Negotiations between the State and Nelson D. eventually broke down. Unable to come to a mutually acceptable resolution, the State and Nelson D. submitted their respective proposed orders for SIST to the court. The State argued that Nelson D. requires confinement and a SIST plan that includes placement in the custody of OPWDD. In support of its recommendation, the State submitted recommendations from the Department of Corrections and Community Supervision (DOCCS) and the Office of Mental Health (OMH) for placement at Valley Ridge. The State also submitted the OPWDD recommendation that Nelson D. be placed in a highly structured, all-male treatment program under 24-hour supervision. Nelson D. objected to placement at Valley Ridge as a condition of SIST, arguing it constituted civil commitment, inconsistent with article 10. Nelson D. requested a SIST plan involving community group housing, which he argued would be tailored to his needs and provide appropriate supervision, and thus comport with SIST under article 10.

Supreme Court rejected Nelson D.’s proposal. The court concluded that placement at Valley Ridge did not constitute confinement because it is not a “secure treatment facility,” which is the only recognized facility authorized for confinement under article 10. The court found that a SIST disposition with placement at Valley Ridge was consistent with the recommendations from OPWDD, DOCCS, OMH, and the Division of Parole, and ordered Nelson D.’s placement at Valley Ridge.

The Appellate Division, First Department, affirmed, concluding that the Valley Ridge placement was permissible under section 10.11 of the Mental Hygiene Law, and that such placement did not violate Nelson D.’s substantive due process rights because it was an appropriate SIST regimen as authorized under article 10 (100 AD3d 418 [1st Dept 2012]).

IL

On appeal to this Court, Nelson D. argues that involuntary inpatient commitment pursuant to outpatient SIST violates his substantive due process rights. He also argues that the court’s purported circumvention of the State’s inpatient commitment procedures deprived him of procedural safeguards that would have otherwise met due process standards. The State counters that the jury verdict for mental abnormality satisfies substantive due process requirements, and that Nelson D.’s procedural due process argument is unpreserved, and, alternatively, lacks merit because he has received ample process under article 10 of the Mental Hygiene Law.

We conclude that article 10 provides for only two dispositional outcomes, confinement or an outpatient SIST regime. Therefore, we agree with Nelson D. that, absent a finding of the type of condition that statutorily subjects him to confinement, his placement at Valley Ridge constitutes involuntary confinement, in violation of the plain language of Mental Hygiene Law article 10. We also agree that involuntary commitment, as part of a SIST plan, deprives Nelson D. of the statutorily prescribed procedures mandated for confinement under article 10. Therefore, the Appellate Division order should be reversed.

Our decision is based on the plain language of article 10 which resolves the issues presented on appeal. Therefore, we have no occasion to address the substantive constitutional arguments raised by Nelson D. By relying on the statutory text, we adhere to the well established rule that a court should not address a constitutional question if the matter can be disposed of on some other basis (see People v Felix, 58 NY2d 156, 161 [1983] [“It is hornbook law that a court will not pass upon a constitutional question if the case can be disposed of in any other way”]; McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [a], Comment [“Ordinarily a court will not pass on a constitutional question if there is any other way of disposing of the case”]).

III.

A.

Under Mental Hygiene Law article 10, a judge is authorized to order one of two dispositional outcomes after a trial determination that a detained sex offender suffers the type of mental abnormality that subjects him to civil management (see Mental Hygiene Law § 10.07 [f]; Matter of State of New York v Myron P., 20 NY3d 206, 212 [2012] [“Article 10 has two dispositional choices—either confinement or strict and intensive supervision and treatment”]; State of N.Y. ex rel. Harkavy v Consilvio, 8 NY3d 645, 652 [2007] [Harkavy II] [“Mental Hygiene Law article 10 provides that patients who are categorized as ‘dangerous sex offender(s) requiring confinement’ must be placed in secure facilities . . . ; all other patients must be released for outpatient treatment and supervision” (footnote and citations omitted)]). During this dispositional phase, the State bears a heavy burden to establish “by clear and convincing evidence that the respondent [sex offender] has a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the respondent is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.07 [f]). If the State meets its burden, the judge orders confinement, and the respondent “shall be committed to a secure treatment facility for care, treatment, and control until such time as he or she no longer requires confinement” (id.). If the State fails to meet its burden, and the judge determines that the sex offender does not meet the statutory definition of a dangerous sex offender requiring confinement, as in the case of Nelson D., then the judge must order a regimen of SIST (see id.; see also Myron P., 20 NY3d at 213; Harkavy II, 8 NY3d at 651). In such case, “the respondent [sex offender] shall be subject to a regimen of strict and intensive supervision and treatment in accordance with section 10.11 of this article” (Mental Hygiene Law § 10.07 [f]). Thus, according to the plain language of article 10, these are mutually exclusive dispositional outcomes, textually structured as disjunctive options of confinement or SIST.

Moreover, these dispositional outcomes are designed to address the treatment needs of the two categories of sex offenders requiring civil management. The statutorily circumscribed dispositions for these two categories of sex offenders do not overlap. As plainly stated in the definitional section of article 10, a sex offender who requires SIST is an offender who is not “a dangerous sex offender requiring confinement” (id. § 10.03 W).

We have previously recognized that article 10 is limited to these two dispositional outcomes, depending on the dangerous nature of the offender. In Harkavy II, we said that while dangerous sex offenders are consigned to confinement within a secure facility in accordance with the statute, “[a] 11 other patients suffering from a mental abnormality are released for outpatient treatment by OMH and supervision by the Division of Parole” (Harkavy II, 8 NY3d at 651). In Myron P., we again recognized that confinement and SIST are different options, and that the legislature had authorized trial judges to determine “whether the individual’s dangerousness necessarily requires retention or the individual could safely be treated and/or supervised on an outpatient basis” (Myron P., 20 NY3d at 213).

The State argues that the court’s dispositional options are not limited to confinement versus nonconfinement, but rather to confinement as specifically defined in article 10 within a designated secure treatment facility, versus supervision and treatment in any setting, including some other, less secure facility, where Nelson D.’s freedom, nonetheless, may be restricted. The State argues that civil management inherently requires restraints on liberty, including involuntary placement, be it in a secure facility or other government institution.

We cannot accept the State’s qualification of civil management given that the basic and undeniable character of confinement is the inability to leave at will from government custody. That essential aspect of confinement belies a reading of article 10 that confinement is not “confinement” as long as the offender is committed to a facility other than a “secure facility.” Certainly, if the legislature meant to permit confinement as part of SIST, it would not have been so careful and deliberate in distinguishing confinement from SIST throughout article 10 (see Mental Hygiene Law §§ 10.03 [e], [q], [r]; 10.07 [f]; 10.11). The State misinterprets the plain language of article 10, and the clear statutory distinction between confinement, with its attendant restraint on liberty and freedom, and SIST, with its outpatient-based restrictive supervision.

The State also ignores the fact that the judicial dispositional outcomes are delimited by the statutory distinction between categories of sex offenders, which provide the foundation for the article 10 civil management structure. Under article 10, commitment is sanctioned when there is a finding that the sex offender suffers from the type of mental abnormality that renders the sex offender dangerous and unable to control his conduct (see id. § 10.07 [f]). Absent this determination of a sex offender’s mental condition, there cannot be a judicially imposed period of confinement.

The legislative findings in support of article 10 constitutionally permissible civil management recognize that confinement is relegated to “extreme cases” for “the most dangerous [sex] offenders” (id. § 10.01 [b]; see also Kansas v Hendricks, 521 US 346, 357 [1997] [“States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety”]; Heller v Doe by Doe, 509 US 312, 332 [1993] [“the state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable ... to care for themselves, as well as authority under its police power to protect the community from any dangerous mentally retarded persons” (internal quotation marks and citation omitted)]; Allen v Illinois, 478 US 364, 373 [1986] [same]; Minnesota ex rel. Pearson v Probate Court of Ramsey Cty., 309 US 270, 274-275 [1940] [“Whether the legislature could have gone farther is not the question. The class it did select is identified by the state court in terms which clearly show that the persons within that class constitute a dangerous element in the community which the legislature in its discretion could put under appropriate control”]). Article 10 specifically provides for confinement solely for a sex offender with a mental abnormality “involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]). Here, the court found exactly the opposite. The court concluded that Nelson D. did not meet the definition of a dangerous sex offender requiring confinement under article 10, but rather that he “is a sex offender requiring a regimen of [SIST] in accordance with [Mental Hygiene Law] § 10.11.”

The State also argues that Nelson D.’s involuntary confinement at Valley Ridge is within the court’s statutory authority because article 10 requires the court to order DOCCS to develop, in consultation with the Commissioner of OPWDD, recommended supervision requirements, which may include “specification of residence or type [of] residence” (Mental Hygiene Law § 10.11 [a] [1]). Although the State’s argument is anchored in the statutory language, a close reading of Mental Hygiene Law § 10.11 (a) (1) does not support this interpretation. The reference to “residence” in section 10.11 (a) (1) is part of a longer nonexhaustive list of recommended supervision requirements set forth in that section. These requirements are only applicable to those offenders who are under a SIST regimen, and thus, by definition, those who are not confined. Moreover, the requirements set forth in section 10.11 (a) (1) are in the nature of nonconfinement conditions. They refer to ways of supervising, tracking and controlling the offender in a SIST program. In this context, the reference to “specification of residence or type [of] residence” is best understood to relate to the types of locations that further the necessary supervision requirements, not the location of the offender’s confinement, because, simply stated, confinement cannot be a proper part of a SIST program. Thus, “residence” in this section refers to whether the offender’s living arrangements prohibit or permit certain types of conduct, or otherwise provide for certain services.

The State appears to argue that article 10 contemplates a category of sex offender, one that is not found to be dangerous and subject to confinement in a secure facility, but one that has a mental abnormality that requires strict and intensive supervision provided through involuntary confinement in a government institution. The State’s argument ignores that the defining characteristic of confinement is restraint of liberty, and that its interpretation of the statute is not supported by the text. Moreover, article 10 neither anticipates nor provides for the type of placement. advocated by the State because it only provides for confinement or SIST, and does not merge the two.

B.

Nelson D. also argues that a SIST plan that includes commitment to Valley Ridge denies him the full range of procedural protections contained in the Mental Hygiene Law that are designed to avoid the continuation of confinement beyond its lawful limits. The State responds that this argument is unpreserved and without merit. The record, however, belies the State’s claim of lack of preservation because Nelson D. asserted violations of his substantive and procedural rights in the proposed findings he submitted to the Supreme Court.

On the merits, given the procedural framework of article 10, it is undeniable that if Nelson D. is confined as part of a SIST plan and denied procedures available to designated sex offenders confined to a secure facility, such denial would be a violation of statutory requirements intended to protect against unlawful confinement (see Mental Hygiene Law §§ 10.09, 10.11). Under article 10, a confined dangerous sex offender is entitled to annual review of his placement (id. § 10.09 [b]), the right to an independent psychiatric examiner at state cost, and a hearing, where the burden is on the State to establish the lawfulness of the continued confinement (id. § 10.09 [d]). Moreover, a confined sex offender “may at any time petition the court for discharge and/or release to the community” as part of a SIST plan (id. § 10.09 [f]).

In comparison, while in SIST, the sex offender may seek modification or termination of SIST and its conditions, but only once every two years (id. § 10.11 [f]). As a result, the offender must wait at least two years before filing his or her first petition. While the State continues to bear the burden of showing, by clear and convincing evidence, that the offender continues to be a sex offender requiring civil management (id. § 10.11 [h]), when a sex offender files a modification petition, “[a sex offender] seeking modification shall have the burden of showing that those modifications are warranted, and the court shall order such modifications to the extent that it finds that the party has met that burden” (id. § 10.11 [g]).

There is a demonstrably meaningful difference in the infringement of liberty where confinement in a secure facility permits the sex offender to seek reconsideration at any time, but an offender subject to SIST, who is involuntarily committed, must wait two years before consideration of the specifics of the SIST order, all the while confined against his will in a government institution.

The Appellate Division order should be reversed, without costs, and case remitted to Supreme Court for further proceedings in accordance with this opinion.

Pigott, J.

(dissenting). I disagree with the majority’s view that confinement in an inpatient facility (of which Valley Ridge Center for Intensive Treatment is one) can never be part of a “regimen of strict and intensive supervision and treatment” (SIST) (Mental Hygiene Law § 10.11). Moreover, I believe that the majority’s decision will have the effect that more, rather than fewer, article 10 sex offenders will be judged to be “dangerous sex offender[s] requiring confinement” in a designated secure treatment facility (Mental Hygiene Law § 10.07 [f]), even when they might be successfully supervised and treated in the community under SIST. Therefore, I dissent.

Under Mental Hygiene Law § 10.11 (a) (1), a court ordering the release of an individual to a regimen of SIST shall order the Department of Corrections and Community Supervision (DOCCS) to recommend supervision requirements, to “be developed in consultation with” the Office of Mental Health or the Office for People With Developmental Disabilities, that “may include . . . any . . . lawful and necessary conditions that may be imposed by a court.” Moreover, Mental Hygiene Law § 10.11 (a) (1) provides a nonexhaustive list of such requirements, which includes “specification of residence or type [of] residence.” It is clear that the legislature intended to give courts wide latitude in setting conditions of SIST, including specification of the type of residence—or even what particular residence—a sex offender must live in.

The majority holds that involuntary confinement in a government institution cannot be a condition of SIST because such confinement is a “restraint of liberty” (majority op at 242) and, in the majority’s view, Mental Hygiene Law article 10 only restrains a sex offender’s liberty when he or she is determined to be a “dangerous sex offender requiring confinement.” But most, if not all, of the items in the nonexhaustive list of possible SIST conditions restrain a sex offender’s liberty to some degree. A sex offender is not unrestrained if he is being tracked via GPS, electronically monitored every time he accesses a computer, and intensively supervised on a daily basis by his parole officer.

Moreover, the majority does not make clear whether it would be acceptable for a court to, say, place a sex offender, against his will, in a state-owned halfway house with a strictly enforced nighttime curfew. Does that count as being involuntarily confined in a government institution, so that it cannot be ordered as a SIST condition under the majority’s holding? After all, the sex offender in this scenario is subject to involuntary confinement at night. Alternatively, is this an acceptable SIST requirement because the sex offender is free to leave the halfway house during daylight hours?

Because the majority does not answer these questions, the short-term effect of the Court’s holding may be that more article 10 sex offenders will be relegated to confinement in the designated secure treatment facilities, even if they are not “likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]; see § 10.07 [f]). Courts will fear that placing article 10 sex offenders in a halfway house or group home, with a curfew and a considerable degree of supervision by employees of the residence (as well as by DOCCS), would be in violation of the Court’s holding here.

Under the majority’s ruling, Nelson D. himself must be released from the Broome Developmental Center in Binghamton, where he currently resides (unless the State seeks to keep him there under Mental Hygiene Law article 15 because he suffers from intellectual disability). But many sex offenders who might otherwise be safely housed in community dwellings may instead find themselves confined in the designated secure treatment facilities. It does not make sense to think that the legislature intended this result.

Chief Judge Lippman and Judges Graffeo and Abdus-Salaam concur with Judge RrvERA; Judge Pigott dissents in an opinion in which Judges Read and Smith concur.

Order reversed, without costs, and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein.

      . The trial court noted only two such facilities in the state: Central New York Psychiatric Center and St. Lawrence Psychiatric Center.

      . The order states that Nelson D. was to be placed at Valley Ridge, and “thereafter” reside at any other OPWDD facility that would appropriately address his treatment and clinical needs.

      . At the time of this appeal Nelson D. had been transferred out of Valley Ridge to another OPWDD facility. Nevertheless, he continues to be subject to Supreme Court’s order, and therefore his right to a proper placement in accordance with article 10 remains in jeopardy.

      . The dissent contends that because SIST must, by necessity, require some restraint of liberty, a SIST plan may also validly include confinement to an inpatient facility. This is exactly what the statute does not provide. Article 10 sets forth two dispositional choices, confinement or SIST, and we have said that SIST is “outpatient treatment by OMH and supervision by the Division of Parole” (Harkavy II, 8 NY3d at 651; see also Myron P., 20 NY3d at 213 [noting that confinement is the sole dispositional outcome under article 9, but article 10 provides for confinement or SIST]). Moreover, to hold that because a court may impose restrictions as part of a SIST regimen, a court is also free to impose confinement, would upend the therapeutic basis of article 10, and allow the State to avoid its statutorily mandated burden to prove by clear and convincing evidence that a sex offender requires confinement because of the offender’s mental abnormality. To the extent the dissent invites us to consider what would constitute a lawful SIST plan, we need not opine on the legality of any hypothetical SIST regimen. A SIST plan is dependent on the unique treatment needs of the individual sex offender. We only determine, as a statutory matter, that confinement is not a proper component of SIST under article 10.

        . Other items on the list include electronic monitoring, global positioning satellite tracking, polygraph monitoring, prohibition of contact with identified past or potential victims, strict and intensive supervision by a parole officer, and “any other lawful and necessary conditions that may be imposed by a court” (Mental Hygiene Law § 10.11 [a] [1]).

      . The dissent argues that our decision will result in confinement of persons who would be better suited to SIST with inpatient restrictions because courts seeking to avoid a decision at odds with our holding will order confinement, “even if they are not ‘likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility’ ” (see dissenting op at 245, quoting Mental Hygiene Law §§ 10.03 [e]; 10.07 [f]). However, a court’s determination of what should be the proper article 10 civil management outcome is based solely on a court’s findings after a dispositional hearing (id. § 10.07 [f]). Where the court determines there is no clear and convincing evidence that the respondent requires confinement, a court cannot order this disposition.


author: Chief Judge Lippman.

text:
    [3 NE3d 682, 980 NYS2d 345]
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Argued November 12, 2013;
    decided December 10, 2013

      POINTS OF COUNSEL

      Mauro Lilting Naparty LLP, Woodbury (Richard J. Montes and Matthew W. Naparty of counsel), and Fabiani Cohen & Hall, LLP, New York City, for appellants.
    I. This Court should adhere to its February 14, 2013 decision to preclude the plaintiffs from litigating the issue of Jose Verdugo’s accident-related disability after January 24, 2006, but correct that portion implying a continuing claim for post-traumatic stress disorder. II. This Court correctly held that collateral estoppel precludes plaintiffs from relitigating the Workers’ Compensation Board’s factual determination that the plaintiff was no longer disabled after January 24, 2006. (Ryan v New York Tel. Co., 62 NY2d 494; Kaufman v Eli Lilly & Co., 65 NY2d 449; Matter of Abady, 22 AD3d 71; D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Mahl v Citibank, 234 AD2d 348; Matter of Evans v Monaghan, 306 NY 312; Liss v Trans Auto Sys., 68 NY2d 15; O’Connor v Midiria, 55 NY2d 538; Werner v State of New York, 53 NY2d 346; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147.) III. Many of the arguments raised by plaintiffs and their amici in support of reargument are not properly before this Court. (Hecker v State of New York, 20 NY3d 1087; Foley v Roche, 68 AD2d 558; People v D’Alessandro, 13 NY3d 216; People v Bachert, 69 NY2d 593; Matter of City of Buffalo [Cosgrove], 57 AD2d 47; Matter of Lezette v Board of Educ., Hudson City School Dist, 35 NY2d 272; Mouradian v Astoria Fed. Sav. & Loan, 91 NY2d 124; Parker v Mobil Oil Corp., 7 NY3d 434; Parklane Hosiery Co. v Shore, 439 US 322; O’Rourke v Long, 41 NY2d 219.)

      Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), and Schwartz Goldstone & Campisi, LLP, New York City (Herbert Rodriguez, Jr., of counsel), for respondents.
    I. The collateral estoppel doctrine is inapplicable because there is no identity of issues. (Matter of Halyalkar v Board of Regents of State of N.Y., 72 NY2d 261; Kaufman v Eli Lilly & Co., 65 NY2d 449; Matter of Winfield v New York Cent. & Hudson Riv. R.R. Co., 216 NY 284; New York Central R. Co. v White, 243 US 188; Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d 348; Rubeis v Aqua Club, Inc., 3 NY3d 408; Matter of Marhoffer v Marhoffer, 220 NY 543; Matter of Zamora v New York Neurologic Assoc., 19 NY3d 186; Matter of Rubenstein v Pechter Baking Co., 224 App Div 324, 249 NY 433; Matter of Ramroop v Flexo-Craft Print., Inc., 11 NY3d 160.) II. The Auqui (20 NY3d 1035 [2013]) rule will defeat the very purpose of the workers’ compensation scheme, by forcing workers to forgo compensation and to restrict carriers from seeking reimbursement from third-party tortfeasors. (Matter of Russo v New York City Dept. of Correction, 9 AD3d 528; Matter of Marhoffer v Marhoffer, 220 NY 543.) III. The Auqui (20 NY3d 1035 [2013]) ruling abrogates tort law and has the unintended consequence of redistributing losses from the tortfeasor to the injured worker and the employer’s carrier. (Matter of Engel v Calgon Corp., 114 AD2d 108; Barnett v Ives, 265 AD2d 865.) IV The collateral estoppel doctrine is inapplicable because there is no finality to a ruling that plaintiff suffers from no further causally-related disability. The Workers’ Compensation Board and Workers’ Compensation Law Judges have continuing jurisdiction to reopen cases and modify awards when a worker’s ability to return to work changes in light of the claimant’s medical condition.
      (People v Greenberg, 21 NY3d 439; Matter of Carolan v Hoe & Co., 225 App Div 393.) V The collateral estoppel doctrine is inapplicable because plaintiffs were denied a full and fair opportunity to litigate plaintiffs inability to work in light of his severe brain injury when the Workers’ Compensation Law Judge denied their physicians’ requests for neuropsychiatric testing to prove plaintiffs permanent neuropsychiatric injuries. (Wunderlich v Hampton Design & Constr. Group, 5 AD3d 158; Empire State Shipping Serv., Ltd. v Hanover Ins. Co., 89 AD3d 431; Howard S. v Lillian S., 62 AD3d 187, 14 NY3d 431; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147; Cunningham v State of New York, 60 NY2d 248.) VI. The Auqui (20 NY3d 1035 [2013]) ruling, as applied in Casas v Consolidated Edison Co. of N.Y., Inc. (105 AD3d 471 [1st Dept 2013]), illustrates that the Workers’ Compensation Board determination of no further causally-related disability should not be subject to the collateral estoppel doctrine. (Broida v Bancroft, 103 AD2d 88.) VII. Defendants’ arguments undermine sound public policy and are legally flawed. (Hinchey v Sellers, 7 NY2d 287; Southern Pacific R. Co. v United States, 168 US 1; United States v Moser, 266 US 236; Friedman v State of New York, 24 NY2d 528; American Home Assur. Co. v International Ins. Co., 90 NY2d 433.) VIII. Defendants’ request for reargument is moot if this Court adopts plaintiffs’ position on reargument. Plaintiffs do not dispute defendants position in the event that this Court declines to revisit or disturb its earlier determination.

      New York State Trial Lawyers Association, New York City (Robert Danzi of counsel), for New York State Trial Lawyers Association, amicus curiae.
    The collateral estoppel doctrine cannot be applied to preclude plaintiffs’ proof of proximate cause because whether plaintiff suffered a further causally-related disability presents a question of fact for a jury; accordingly, on re-argument, this Court should recall its prior decision and affirm the majority Appellate Division decision. (Ryan v New York Tel. Co., 62 NY2d 494; B. R. DeWitt, Inc. v Hall, 19 NY2d 141; Matter of Juan C. v Cortines, 89 NY2d 659; Kaufman v Eli Lilly & Co., 65 NY2d 449; D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Gilberg v Barbieri, 53 NY2d 285; Bansbach v Zinn, 1 NY3d 1; Jeffreys v Griffin, 1 NY3d 34; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147; Matter of Halyalkar v Board of Regents of State of N.Y., 72 NY2d 261.)

      Colleran, O’Hara & Mills L.L.P., Garden City (Edward J. Groarke and Jennifer D. Weekley of counsel), for New York State AFL-CIO and others, amici curiae.
    I. Tort recovery rights of New York’s injured workers should not be truncated by improper application of the collateral estoppel doctrine to final determinations of the Workers’ Compensation Board. (Akgul v Prime Time Transp., 293 AD2d 631; O’Gorman v Journal News Westchester, 2 AD3d 815; Gilberg v Barbieri, 53 NY2d 285; Kaufman v Eli Lilly & Co., 65 NY2d 449; Matter of Engel v Calgon Corp., 114 AD2d 108, 69 NY2d 753; Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248.) II. New York’s injured workers should not be deprived of their constitutionally protected right to a jury trial on their personal injury claims merely because they participate in the workers’ compensation system.

      David M. Schraver, Albany, for New York State Bar Association, amicus curiae.
    I. Workers’ Compensation Board determinations of further causally-related disability should not have preclusive effect. (Brugman v City of New York, 102 AD2d 413; Werner v State of New York, 53 NY2d 346; O’Connor v Midiria, 55 NY2d 538; O’Gorman v Journal News Westchester, 2 AD3d 815; Akgul v Prime Time Transp., 293 AD2d 631; Matter of Engel v Calgon Corp., 114 AD2d 108, 69 NY2d 753; Jeffreys v Griffin, 1 NY3d 34; Matter of Balcerak v County of Nassau, 94 NY2d 253; Ott v Barash, 109 AD2d 254; Casas v Consolidated Edison Co. of N.Y., Inc., 105 AD3d 471.) II. Allowing the Auqui decision (20 NY3d 1035 [2013]) to stand as decided would undermine the workers’ compensation system. (Crosby v State of N.Y., Workers’ Compensation Bd., 57 NY2d 305; Shanahan v Monarch Eng’g Co., 219 NY 469.)

      Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano LLP, Brooklyn (Michael K. Gruber of counsel), for Workers’ Injury Law & Advocacy Group, amicus curiae.
    I. The “realities of litigation” in a workers’ compensation proceeding should preclude the application of collateral estoppel. (Gilberg v Barbieri, 53 NY2d 285; People v Plevy, 52 NY2d 58.) II. Workers’ Compensation Board determinations regarding disability are mixed questions of law and fact which should not be given preclusive effect in subsequent proceedings. (Matter of Engel v Calgon Corp., 114 AD2d 108.) III. Applying collateral estoppel to disability determinations of the Workers’ Compensation Board has far-reaching consequences for the rights of injured workers. (Gilberg v Barbieri, 53 NY2d 285; B. R. DeWitt, Inc. v Hall, 19 NY2d 141; Casas v Consolidated Edison Co. of N.Y., Inc., 105 AD3d 471.)

      McGaw, Alventosa & Zajac, Jericho (Andrew Zajac, Dawn C. DeSimone, Brendan T. Fitzpatrick, Seamus G. Flaherty and Jonathan T. Uejio of counsel), and Brian Rayhill, Elmsford, for Defense Association of New York, Inc., amicus curiae.
    I. This Court properly held that the decision of the Workers’ Compensation Board was entitled to collateral estoppel effect. (Ryan v New York Tel. Co., 62 NY2d 494; Academic Health Professionals Ins. Assn. v Lester, 30 AD3d 328; Patco Homes v Boyle, 260 AD2d 455; Kaufman v Eli Lilly & Co., 65 NY2d 449; Altegra Credit Co. v Tin Chu, 29 AD3d 718; Kaufman v Village of Mamaroneck, 18 AD3d 505; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Bernstein v Birch Wathen School, 71 AD2d 129, 51 NY2d 932; O’Gorman v Journal News Westchester, 2 AD3d 815; Hughes v Gibson Courier Servs. Corp., 218 AD2d 684.) II. Sufficient safeguards exist in proceedings before the Workers’ Compensation Board to warrant the application of collateral estoppel. (Matter of Camperlengo v Barell, 78 NY2d 674; Ryan v New York Tel. Co., 62 NY2d 494; Botwinick v Ogden, 59 NY2d 909; O’Rourke v Long, 41 NY2d 219; Jeffreys v Griffin, 1 NY3d 34; Matter of Halyalkar v Board of Regents of State of N.Y., 72 NY2d 261; Pommells v Perez, 4 NY3d 566.)

      Bevan, Mosca, Giuditta & Zarillo, PC., New York City (Anthony J. Zarillo, Jr., of counsel), for Federation of Defense and Corporate Counsel, amicus curiae.
    Issue preclusion applies to necessary determinations that were actually litigated before the Workers’ Compensation Board. (Brugman v City of New York, 102 AD2d 413, 64 NY2d 1011; Wickham Contr. Co., Inc. v Board of Educ. of City of N.Y., 715 F2d 21; United States v Utah Constr. & Mining Co., 384 US 394; Ryan v New York Tel. Co., 62 NY2d 494; Dodd v Hood Riv. County, 136 F3d 1219, 525 US 923; Barna v Morgan, 341 F Supp 2d 164; EZ Loader Boat Trailers, Inc. v Cox Trailers, Inc., 746 F2d 375; Levich v Liberty Cent. School Dist., 361 F Supp 2d 151; Babineaux v Ford Motor Co., 95 F3d 1148.)

      Dennis M. Brown, County Attorney, Hauppauge (Christopher A. Jeffreys of counsel), for County of Suffolk, amicus curiae.
    The necessary findings of the Workers’ Compensation Law Judge and Workers’ Compensation Board collaterally estop a workers’ compensation claimant from relitigating those necessary findings in a subsequent personal injury action. (Brugman v City of New York, 102 AD2d 413; Ashcraft Excavating Co. v Clark, 79 AD2d 722; Hinchey v Sellers, 7 NY2d 287; D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Ryan v New

      York Tel. Co., 62 NY2d 494; Matter of Abady, 22 AD3d 71; Rigopolous v American Museum of Natural History, 297 AD2d 728; Lee v Jones, 230 AD2d 435, 91 NY2d 802; Matter of Maresco v Rozzi, 162 AD2d 534; Matter of Engel v Calgon Corp., 114 AD2d 108, 69 NY2d 753.)

      McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York City (Mark A. Rosen of counsel), for Real Estate Board of New York and others, amici curiae.
    I. There was no misapprehension of fact or misapplication of law as this Court applied longstanding and well-established rules regarding the collateral estoppel effect of factual determinations by the Workers’ Compensation Board and correctly held that plaintiffs are precluded from relitigating the issue of an ongoing disability. (Matter of Evans v Monaghan, 306 NY 312; University of Tennessee v Elliott, 478 US 788; Liss v Trans Auto Sys., 68 NY2d 15; O’Connor v Midiria, 55 NY2d 538; Werner v State of New York, 53 NY2d 346; Matter of Sillitti v Liberty Travel, Inc., 83 AD3d 1169; Matter of Harrington v Whitford Co., 302 AD2d 645.) II. Reversal of this Court’s February 14, 2013 decision would be fundamentally unfair and unduly prejudicial to defendants and similarly situated defendants and would likely establish dangerous precedent. (Kaufman v Eli Lilly & Co., 65 NY2d 449.) III. The hypothetical concerns raised by plaintiffs and other amici have no foundation, nor is plaintiffs’ motion the appropriate vehicle to address these issues. (Parklane Hosiery Co. v Shore, 439 US 322; Werner v State of New York, 53 NY2d 346; Ryan v New York Tel. Co., 62 NY2d 494.)

      Andrew Friedman, Center for Popular Democracy, Brooklyn, amicus curiae.
    I. The Workers’ Compensation Law Judge’s determination of plaintiffs disability is a mixed question of law and fact imbued with policy considerations and as such should not be granted preclusive effect in plaintiffs’ third-party action. (Hinchey v Sellers, 7 NY2d 287; Matter of Engel v Calgon Corp., 114 AD2d 108, 69 NY2d 753; Matter of Albano v Kirby, 36 NY2d 526; Hunter v New York, Ontario & W. R.R. Co., 116 NY 615.) II. Allowing Workers’ Compensation Board determinations on disability to have preclusive effect will disproportionately impact New York’s low-income and immigrant workforce. (Crosby v State of N.Y., Workers’ Compensation Bd., 57 NY2d 305; Shanahan v Monarch Eng’g Co., 219 NY 469.)

      Magdalena Barbosa, Jackson Heights, for Make the Road New York, amicus curiae.
    I. This Court’s prior holding negates the very purpose of the Workers’ Compensation Law by decreasing the likelihood that injured workers will pursue valid claims. (Matter of Johannesen v New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129; Matter of Post v Burger & Gohlke, 216 NY 544.) II. Determinations of the Workers’ Compensation Board addressing the duration of an injured worker’s disability should not have preclusive effect because they lack finality. (Brugman v City of New York, 102 AD2d 413; Ott v Barash, 109 AD2d 254; Casas v Consolidated Edison Co. of N.Y., Inc., 105 AD3d 471, 21 NY3d 999.)

      Advocates for Justice, New York City (Arthur Z. Schwartz of counsel), for The Black Institute, amicus curiae.
    I. Identity of issues, a necessary condition for the application of collateral estoppel, is lacking. (Brugman v City of New York, 102 AD2d 413; Jeffreys v Griffin, 1 NY3d 34; Matter of Balcerak v County of Nassau, 94 NY2d 253.) II. Collateral estoppel’s prerequisite of fairness to the litigants dictates that the doctrine not be applied in this particular case. (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Jeffreys v Griffin, 301 AD2d 232; Surace v Danna, 248 NY 18; Matter of Post v Burger & Gohlke, 216 NY 544; New York Central R. Co. v White, 243 US 188.)

      Advocates for Justice, New York City (Arthur Z. Schwartz of counsel), for New York Communities for Change, amicus curiae.
    I. The court erred in applying collateral estoppel because there is no identity of issue between the prior action and present action. (Matter of Evans v Monaghan, 306 NY 312; Brugman v City of New York, 102 AD2d 413, 64 NY2d 1011; Matter of Guimarales [New York City Bd. of Educ.—Roberts], 68 NY2d 989; Matter of Balcerak v County of Nassau, 94 NY2d 253.) II. The court erred in applying collateral estoppel because duration of disability is a mixed question of law and fact. (Matter of Engel v Calgon Corp., 114 AD2d 108, 69 NY2d 753; Matter of Keeley v Jamestown City School Dist., 295 AD2d 876; Matter of Mitchell v New York City Tr. Auth., 244 AD2d 723.) III. Allowing Workers’ Compensation Board determinations of duration of disability to have preclusive effect will disproportionately impact New York’s low-income communities. (Crosby v State of N.Y., Workers’ Compensation Bd., 57 NY2d 305; Shanahan v Monarch Eng’g Co., 219 NY 469.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether the determination of the Workers’ Compensation Board, finding that plaintiff had no further causally-related disability and no further need for treatment, was entitled to collateral estoppel effect in plaintiff’s personal injury action. We find that there is no identity of issue and that collateral estoppel therefore should not be applied.

On December 24, 2003, Jose Verdugo (hereinafter plaintiff) was injured during the course of his employment as a food delivery person, when he was struck in the head by a sheet of plywood that fell to the sidewalk from a building under construction on Lexington Avenue, near 59th Street in Manhattan. Defendant Seven Thirty One Limited Partnership was the owner of the premises. Defendant Bovis Lend Lease LMB was the construction manager for the project and defendant North Side Structures, Inc. was the concrete superstructure subcontractor. Following the accident, plaintiff began receiving workers’ compensation benefits for injuries to his head, neck and back, as well as for post-traumatic stress disorder and depression. He commenced this personal injury action in 2004.

In December 2005, the insurance carrier for plaintiff’s employer moved to discontinue plaintiffs workers’ compensation benefits and the parties proceeded to a hearing before an administrative law judge (ALJ). Each side was permitted to introduce expert medical testimony, which was subject to cross-examination. The ALJ ultimately found that plaintiff had “no further causally related disability since January 24, 2006.”

Plaintiff sought administrative review and, as relevant here, the Workers’ Compensation Board Panel affirmed, finding record support for the ALJ’s credibility determinations. The Panel agreed that plaintiff had no further causally-related disability and found that he had “no further need for treatment.”

Subsequently, in this negligence action, defendants moved for an order estopping plaintiff from “relitigating” the issue of causally-related disability beyond January 24, 2006, arguing that the matter had been finally determined by the Workers’ Compensation Board. Supreme Court granted the motion, finding that plaintiff had a full and fair opportunity to address the issue before the Board and precluded him from further litigating that issue.

The Appellate Division reversed, finding that the determination of the Workers’ Compensation Board was one of ultimate fact and thus did not preclude plaintiff from litigating the issue of his ongoing disability (83 AD3d 407 [1st Dept 2011]). Two Justices dissented and would have affirmed. The dissent agreed with Supreme Court that the issue of the duration of plaintiffs disability was the same in both proceedings and that plaintiff had a full and fair opportunity to litigate the issue before the Board. The Appellate Division granted defendants’ motion for leave to appeal to this Court, certifying the following question for our review: “[w]as the order of this Court, which reversed the order of the Supreme Court, properly made?” (2011 NY Slip Op 89173DJ] [2011].) We affirm and answer the certified question in the affirmative.

The quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal (Jeffreys v Griffin, 1 NY3d 34, 39 [2003]). Whether collateral estoppel should be applied in a particular case turns on “ ‘general notions of fairness involving a practical inquiry into the realities of the litigation’ ” (Jeffreys, 1 NY3d at 41, quoting Matter of Halyalkar v Board of Regents of State of N.Y., 72 NY2d 261, 268 [1988]). We have also recognized that collateral estoppel, a flexible doctrine, “ ‘is applied more flexibly’ ” in the context of the determinations of administrative agencies (Jeffreys, 1 NY3d at 40, quoting Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276 [1988]). To that end, “among the factors bearing on whether an administrative decision is ‘quasi-judicial’ are ‘whether the procedures used in the administrative proceeding . . . were sufficient both quantitatively and qualitatively, so as to permit confidence that the facts asserted were adequately tested, and that the issue was fully aired’ ” (Jeffreys, 1 NY3d at 40-41, quoting Allied Chem., 72 NY2d at 276-277). It is the party seeking to invoke collateral estoppel who bears the burden of establishing identity of issue (see Jeffreys, 1 NY3d at 39).

Here, defendants have failed to meet their burden of establishing that the issue decided in the workers’ compensation proceeding was identical to that presented in this negligence action. We have observed that 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” (Matter of Balcerak v County of Nassau, 94 NY2d 253, 259 [1999]). The purpose of awarding such benefits is to provide funds on an expedited basis that will function as a substitute for an injured employee’s wages (see Surace v Danna, 248 NY 18, 20-21 [1928, Cardozo, Ch. J.] [the Workers’ Compensation Law was enacted to save the injured worker “from becoming one of the derelicts of society, a fragment of human wreckage”]). We have observed that the term “disability,” as used in the Workers’ Compensation Law, “generally refers to inability to work” (Rubeis v Aqua Club, Inc., 3 NY3d 408, 417 [2004]). In addition, the Board uses the term “disability” in order to make classifications according to degree (total or partial) and duration (temporary or permanent) of an employee’s injury (see Martin Minkowitz, Practice Commentaries, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law § 15 at 44). The focus of the act, plainly, is on a claimant’s ability to perform the duties of his or her employment.

By contrast, a negligence action is much broader in scope. It is intended to make an injured party whole for the enduring consequences of his or her injury—including, as relevant here, lost income and future medical expenses. Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff’s lifetime. Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical.

In a similar vein, we previously found that there was no identity of issue between a Workers’ Compensation Board determination that an injury was work-related and an application for enhanced benefits under General Municipal Law § 207-c (see Balcerak, 94 NY2d at 258). While recognizing that both types of proceedings required a determination that the injury had been sustained in the course of the claimant’s employment, we observed that the purposes behind the two legislative schemes were very different. Workers’ compensation benefits are intended to be dispensed regardless of fault, for any injury arising out of and in the course of one’s employment (see Balcerak, 94 NY2d at 259). Section 207-c benefits, on the other hand, are more expansive, but apply to a narrower class of work-related injury, relative to the performance of law enforcement duties (see Balcerak, 94 NY2d at 260). We further noted that separate bodies were charged with making each type of determination and that “[t]he burdens, procedures and prescribed benefits [were] also significantly distinct” (Balcerak, 94 NY2d at 261). Related concerns are reflected here, where the jury is charged with determining the broader question of plaintiff s total loss, as opposed to the Workers’ Compensation Board’s narrower focus on the employee’s ability to work.

In addition, in Matter of Bissell v Town of Amherst (18 NY3d 697 [2012]), we recognized certain distinctions between the workers’ compensation process and negligence actions, in the context of the carrier’s obligation to pay its share of litigation costs.

“In a third-party action, the injured employee will have only one opportunity to obtain a recovery for future medical expenses, and the jury assessing the medical evidence will have the chance to make but one award for such expenses, if any. By contrast, in the workers’ compensation context it is possible to wait and see what happens, and to require the carrier to pay its share of litigation costs when that share can be accurately calculated—i.e., when the actual medical expenses that the carrier has been relieved from paying are known. Moreover, whether the claimant is entitled to medical treatment pursuant to the Workers’ Compensation Law is a determination that must be made by the Workers’ Compensation Board, and such determination is not dependent upon the jury’s verdict in the third-party action” (Bissell, 18 NY3d at 702).

Given the realities of these distinct proceedings, the finder of fact in a third-party negligence action, in its attempt to ascertain the extent of plaintiffs total damages, should not be bound by the narrow findings of the Board regarding the duration of plaintiffs injury or his need for further medical care.

Moreover, based on the expedited nature of workers’ compensation proceedings, parties may not have the means to litigate the matter beyond the issue presented to the Board (see e.g. Gilberg v Barbieri, 53 NY2d 285, 293 [1981]). Notably, here, plaintiff did not obtain neuropsychiatric testing for the workers’ compensation hearing, which his physicians had deemed necessary to diagnose his particular type of injury and which he will seek to submit to a jury in the personal injury action.

We stress that this holding should not be read to impair the general rule that the determinations of administrative agencies are entitled to collateral estoppel effect (see e.g. ABN AMRO Bank, N.V. v MBIA Inc., 17 NY3d 208, 226 [2011]). That rule is well-settled and should continue to be applied where, unlike here, there is identity of issue between the prior administrative proceeding and the subsequent litigation.

Accordingly, upon reargument, this Court’s decision of February 14, 2013 should be vacated, the remittitur recalled, the order appealed from affirmed, with costs, and the certified question answered in the affirmative.

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Upon reargument, this Court’s decision of February 14, 2013 vacated, the remittitur recalled, the order appealed from affirmed, with costs, and the certified question answered in the affirmative.

       The named plaintiffs are Maria Auqui, as guardian of the property of Jose Verdugo, and Maria Verdugo, Jose Verdugo’s wife.