author: ClPARIGK, J.

text:
    [811 NE2d 8, 778 NYS2d 746]
    Paul A. Krohn, Respondent-Appellant, and Allí Katt, Respondent, v New York City Police Department et al., Appellants-Respondents.
    Argued March 23, 2004;
    decided May 4, 2004

      POINTS OF COUNSEL

      Dechert LLP, Princeton, New Jersey (David A. Kotler of counsel), and Kirkland & Ellis, New York City (Scott R. Samay of counsel), for respondent-appellant.
    I. Under this Court’s decision in Sharapata v Town of Islip (56 NY2d 332 [1982]), the New York City Council can, by statute, waive the City of New York’s common-law immunity from punitive damages for its acts of gender-based employment discrimination so long as the statute does so “expressly.” (Thoreson v Penthouse Intl., 80 NY2d 490.) II. The New York City Human Rights Law does expressly subject the City of New York to punitive damages liability for its acts of gender-based employment discrimination. (Bracker v Cohen, 204 AD2d 115; Matter of Levy v City Commn. on Human Rights, 85 NY2d 740; Thoreson v Penthouse Intl., 80 NY2d 490; Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218; Matter of Aaron J., 80 NY2d 402; Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309; Katt v City of New York, 151 F Supp 2d 313; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Ciraolo v City of New York, 216 F3d 236; Matter of Society of N.Y. Hosp. v Del Vecchio, 70 NY2d 634.) III. The trial court both erroneously interpreted Sharapata v Town of Islip (56 NY2d 332 [1982]) and erroneously applied Sharapata to the New York City Human Rights Law. (Katt v City of New York, 151 F Supp 2d 313; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Rust v Reyer, 91 NY2d 355; People v Cooper, 219 AD2d 426, 90 NY2d 292.)

      Michael A. Cardozo, Corporation Counsel, New York City (Scott Shorr and Leonard Koerner of counsel), for appellants-respondents.
    I. Under Sharapata v Town of Islip (56 NY2d 332 [1982]), New York City Human Rights Law (Administrative Code of City of NY) § 8-502 does not waive the City of New York’s immunity from punitive damages liability. (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Katt v City of New York, 151 F Supp 2d 313; Hayes v State of New York, 80 Misc 2d 498, 50 AD2d 693, 40 NY2d 1044; Smith v State of New York, 227 NY 405; City of Newport v Fact Concerts, Inc., 453 US 247.) II. This Court should reject Katt’s and Gurian’s attempt to infer, from various New York City Human Rights Law provisions, that the City Council implicitly waived the City of New York’s immunity from punitive damages liability. (.Juarez v Wavecrest Mgt. Team, 88 NY2d 628; Sharapata v Town of Islip, 56 NY2d 332; Katt v City of New York, 151 F Supp 2d 313; Hayes v State of New York, 80 Misc 2d 498; Smith v State of New York, 227 NY 405; Bracker v Cohen, 204 AD2d 115; Morris v Snappy Car Rental, 84 NY2d 21; West v American Tel. & Tel. Co., 311 US 223; Conlon v Union Dime Sav. Bank, 195 App Div 509; Matter of Levy v City Commn. on Human Rights, 85 NY2d 740.) III. This Court should also reject Katt’s and Gurian’s attempts to infer a waiver from the New York City Human Rights Law’s “overall statutory scheme.” (Katt v City of New York, 151 F Supp 2d 313; Thoreson v Penthouse Intl., 80 NY2d 490.) IV Similarly, this Court should reject Katt’s and Gurian’s speculative inferences that never-enacted and later-enacted bills somehow reveal an implicit waiver of immunity in New York City Human Rights Law (Administrative Code of City of NY) § 8-502 (a). (Sharapata v Town of Islip, 56 NY2d 332; Katt v City of New York, 151 F Supp 2d 313; People v Nogueros, 42 NY2d 956; People v Phyfe, 136 NY 554; New York City Health & Hosps. Corp. v Council of City of N.Y., 303 AD2d 69.) V The State Constitution’s gift provisions bar the City Council from using public money for punitive damages awards. (People v Westchester County Natl. Bank, 231 NY 465; Ruotolo v State of New York, 83 NY2d 248; Angelone v City of Rochester, 72 AD2d 445, 52 NY2d 982; Katt v City of New York, 151 F Supp 2d 313; Babcock v State of New York, 190 App Div 147, 231 NY 560; Farrington v State of New York, 248 NY 112; Matter of Evans v Berry, 262 NY 61; Matter of Chapman v City of New York, 168 NY 80; City of Newport v Fact Concerts, Inc., 453 US 247; Matter of Antonopoulou v Beame, 32 NY2d 126.) VI. Exposing the City of New York to punitive damages liability under the New York City Human Rights Law would violate public policy. (Sharapata v Town of Islip, 82 AD2d 350, 56 NY2d 332; Costich v City of Rochester, 68 App Div 623; City of Newport v Fact Concerts, Inc., 453 US 247; Ciraolo v City of New York, 216 F3d 236, 531 US 993; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382; Katt v City of New York, 151 F Supp 2d 313; International Bhd. of Elec. Workers v Foust, 442 US 42; Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218; Walker v Sheldon, 10 NY2d 401; James v Powell, 19 NY2d 249.)

      J. Wade Beltramo, Albany, and William L. Gibson, Jr., Binghamton, for New York State Conference of Mayors and Municipal Officials and another, amici curiae. Public policy dictates that punitive damages may be imposed against municipalities only when stated clearly in the text of the state statute or local law imposing such punishment. (Sharapata v Town of Islip, 56 NY2d 332; Berger v City of New York, 260 App Div 402; Miller v Town of Irondequoit, 243 App Div 240; Montalto v Westchester St. Transp. Co., 102 AD2d 816; Hamilton v Third Ave. R.R. Co., 53 NY 25; Reid v Terwilliger, 116 NY 530; Buck v Hooker Chems. & Plastics Corp., 117 Misc 2d 496; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382.)

      Craig Gurian, Brooklyn, for Anti-Discrimination Center of Metro New York, Inc., and another, amici curiae.
    I. Both the language of Administrative Code of the City of New York § 8-502 (a) and the legislative history of Local Law No. 39 (1991) of the City of New York demonstrate that the clear import of the enactment was to permit the punitive damages to be awarded against the City of New York where warranted. (Sharapata v Town of Islip, 56 NY2d 332; Katt v City of New York, 151 F Supp 2d 313; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; Matter of Levy v City Commn. on Human Rights, 85 NY2d 740; Umansky v Masterpiece Intl., 276 AD2d 692; Levin v Yeshiva Univ., 96 NY2d 484.) II. The New York City Human Rights Law offers both the City and all other discrimination defendants ample opportunity to mitigate punitive damages, mitigation provisions that are designed as a well-thought-through system of incentives and disincentives for all defendants. (Katt v City of New York, 151 F Supp 2d 313.) III. Defendant’s attempt to analogize city law to either state or federal civil rights law is misguided and misleading. (Matter of 119-121 E. 97th St. Corp. v New York City Commn. on Human Rights, 220 AD2d 79; Levin v Yeshiva Univ., 96 NY2d 484; Mohamed v Marriott Intl., 905 F Supp 141; Matter of Pace Univ. v New York City Commn. on Human Rights, 200 AD2d 173, 85 NY2d 125; Matter of Buckhout v New York City Commn. on Human Rights, 203 AD2d 67.) IV The suggestion that the City of New York is somehow not an “employer” for punitive damages purposes is entirely without merit. (Katt v City of New York, 151 F Supp 2d 313.)
   OPINION OF THE COURT

ClPARIGK, J.

Plaintiff Alii Katt sued her former employer, the New York City Police Department (the City), and Police Lieutenant Anthony DiPalma alleging that she was subjected to sexual harassment and a sexually hostile and abusive work environment in violation of state and federal law and the New York City Human Rights Law. Katt, a civilian employee, worked as a police administrative aide in the Seventh Precinct.

This action was commenced roughly nine years ago, in 1995, and has an extensive procedural history. The complaint originally named three additional individual defendants and alleged several causes of action. At the time of trial, plaintiffs only remaining claims were for violations of 42 USC § 1983, the New York State Human Rights Law (Executive Law § 290 et seq.) and New York City Human Rights Law (Administrative Code of City of NY) § 8-502, against the City and DiPalma.

After trial in the United States District Court for the Southern District of New York, the jury delivered a verdict in plaintiffs favor, awarding $400,000 in compensatory damages against both defendants and $1,000,000 in punitive damages against the City. In response to defendants’ motions for judgment as a matter of law (see Fed Rules Civ Pro rule 50 [b]) or, in the alternative, for a new trial (see Fed Rules Civ Pro rule 59), the court struck the punitive damages award against the City, and otherwise directed entry of judgment for the plaintiff in the amount of $400,000. The court determined that punitive damages were not authorized under section 8-502 of the New York City Human Rights Law because the statute does not contain an unequivocal indication of legislative intent to waive the City’s common-law immunity from liability for such damages (151 F Supp 2d 313, 345 [US Dist Ct, SD NY 2001]). The court subsequently denied plaintiffs motion for reconsideration.

Defendants appealed the District Court’s denial of their motion for a new trial, which the United States Court of Appeals for the Second Circuit affirmed. Plaintiff cross-appealed from the portion of the District Court’s order vacating the punitive damages award. Determining that there was insufficient guidance from this Court to resolve the issue, which raises significant state law public policy concerns, the Second Circuit certified the following question: “Can a person claiming gender-based employment discrimination recover punitive damages from the City of New York under section 8-502(a) of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-502(a)?” (341 F3d 177, 182 [2003].) We accepted certification (100 NY2d 605 [2003]) and now answer that question in the negative.

Analysis

Plaintiff claims gender-based employment discrimination under section 8-502 (a) of the New York City Human Rights Law, which states that:

“Except as otherwise provided by law, any person claiming to be aggrieved by an unlawful discriminatory practice as defined in chapter one of this title . . . shall have a cause of action in any court of competent jurisdiction for damages, including punitive damages, and for injunctive relief and such other remedies as may be appropriate” (Administrative Code of City of NY § 8-502 [a]).

Under the Code, it is an unlawful discriminatory practice for an employer “to discriminate against [a] person in compensation or in terms, conditions or privileges of employment” because of the person’s gender (see Administrative Code § 8-107 [1] [a]).

The Code then defines “employer” by excluding those employers with three employees or less (see Administrative Code § 8-102 [5]), and does not differentiate between public and private employers. Although the definition of “person” includes “governmental bodies or agencies,” section 8-502 (a) uses “person” to refer to those aggrieved by discriminatory treatment, rather than those subject to liability for damages (see Administrative Code § 8-102 [1]; § 8-502 [a]). Plaintiff argues since this Court has previously determined that the New York City Transit Authority was an “employer” within the definition of the New York City Human Rights Law (see Matter of Levy v City Commn. on Human Rights, 85 NY2d 740, 744 [1995]), that the City should also be considered an “employer” here. However, holding the City to be an “employer” for the purposes of the Human Rights Law, does not of itself constitute legislative authorization for punitive damages liability (see Sharapata v Town of Islip, 56 NY2d 332, 336 n 5 [1982]).

In Sharapata, we addressed whether the State of New York was liable for punitive damages under section 8 of the Court of Claims Act and held that the waiver of sovereign immunity-contained in that statute was alone insufficient to subject the State to punitive damages liability. First, “a statute in derogation of the sovereignty of a State must be strictly construed, waiver of immunity by inference being disfavored” (id. at 336). Although “express legislative authorization” would be necessary to subject the State (here the municipality) to punitive damages, section 8 did not make any specific reference to such damages (id. n 5). Second, we found it significant that the legislative history did not give any indication that the Legislature had considered the issue of punitive damages. Finally, we observed that “the twin justifications for punitive damages— punishment and deterrence—are hardly advanced when applied to a governmental unit” since it is the taxpayers who are ultimately penalized (id. at 338; see also Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987] [holding that the Long Island Rail Road should be exempt from liability for punitive damages because a large portion of its funding came from public sources and it served an “essential, governmental purpose” and, as a result, the burden would actually fall upon the taxpayers]).

Here, by contrast to Sharapata, the language of the Code provision expressly references punitive damages. The question is whether that reference is sufficient to imply the City’s waiver of immunity to liability for punitive damages. Under plaintiffs reading of the provision, since the City is within the definition of “employer” under section 8-102 (5), and an “employer” is prohibited from engaging in unlawful discriminatory practices under section 8-107 (1) (a), the City is expressly subject to punitive damages under section 8-502. We agree, however, with the District Court that this language is not an unambiguous expression of legislative authorization to subject the City to liability for punitive damages (see 151 F Supp 2d at 342-343) and is insufficient to waive the City’s immunity to punitive damages liability. The absence of any specific reference to the municipality in the provision itself supports the interpretation that there is neither a waiver of sovereign immunity nor express legislative authorization for punitive damages liability.

Further, the statute begins with the phrase, “[e]xcept as otherwise provided by law” (Administrative Code § 8-502 [a]). It has been a common-law principle in this State that a municipality is not liable for punitive damages flowing from its employees’ misconduct in the absence of express legislative authorization to the contrary (see Sharapata, 56 NY2d at 336). Thus, “we must presume that the City Council was aware of the common-law rule and abrogated it only to the extent indicated by the clear import of its enactment” (Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996] [citations omitted]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [b]). The absence of any specific reference to the municipality, combined with the “[e]xcept as otherwise provided by law” language, suggest that the City Council in fact intended to preserve the principle of municipal immunity from punitive damages. At best, the provision is ambiguous as to imposition of punitive damages liability upon the City and thus cannot be considered express legislative authorization or abrogation of this well-settled principle.

In addition, as was the case in Sharapata, here there is no indication that the City Council discussed, debated or even contemplated exposing the City to punitive damages or the potential fiscal impact of punitive damages on the City. In fact, the Fiscal Impact Statement from the Finance Division of the City Council included in the Local Law Bill Jacket does not include potential punitive damages in its estimated impact on expenditures (see Local Law Bill Jacket, Local Law No. 39 [1991] of City of New York). The Statement did, however, mention that the proposed provision authorized civil penalties and calculated such penalties as revenue to the City (see Local Law Bill Jacket, Local Law No. 39 [1991]).

The general statements that the provision was intended to give “enhanced protection against discrimination” and should be liberally construed do not provide conclusive support for the proposition that the City Council intended to abrogate the longstanding common-law principle that New York municipalities are immune from punitive damages liability and impose such liability on the City (see Report of Legal Div, Comm on Gen Welfare, at 2, 12-13, Local Law Bill Jacket, Local Law No. 39 [1991]). These statements merely reflect the broad policy behind the local law to discourage discrimination (see Administrative Code § 8-101 [“there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another and antagonistic to each other because of their actual or perceived differences”]; see also Administrative Code § 8-130 [the Code provisions should be liberally construed]).

Plaintiff asks us to infer a waiver from the overall statutory scheme including the civil penalty provisions. The civil penalties are merely part of the Code’s alternative method of recovery for victims of discrimination. A person may file a complaint with the Commission on Human Rights provided that he or she has not previously instituted a civil action or started a proceeding before an administrative agency, or filed a complaint with the State Division of Human Rights relating to the same grievance (see Administrative Code § 8-109 [a], [f]). In addition to such remedies as compensatory damages and back pay (see Administrative Code § 8-120 [a] [8], [2]), the Commission is authorized to impose civil penalties not to exceed $100,000 (see Administrative Code § 8-126 [a]). Instead of being paid to the complainant, however, the civil penalties are paid into a general fund (see Administrative Code § 8-127 [a]). The Code specifies that civil penalties received from a city agency are to be paid into a separate fund to “be used solely to support city agencies’ anti-bias education programs, activities sponsored by city agencies that are designed to eradicate discrimination or to fund remedial programs that are necessary to address the city’s liability for discriminatory acts or practices” (Administrative Code § 8-127 [b]). It makes little sense, given scarce public resources, that the City Council would put a cap on civil penalties that would be paid into a city fund, yet allow for open-ended punitive damages liability to be paid to a plaintiff.

Plaintiffs argument that a previous proposed version of the provision specifically excluded the City from a private right of action under section 8-502 is not conclusive. It certainly seems probable that the City Council’s intent in furthering the purpose behind the legislation—to discourage discrimination—allowed the City, as well as private entities, to be liable for compensatory damages. The omission of the language from the previous proposal, without more, cannot amount to express legislative authorization necessary to subject the City to punitive damages.

In short, persons claiming gender-based employment discrimination cannot recover punitive damages pursuant to section 8-502 as the provision does not clearly, expressly and specifically waive New York City’s sovereign immunity. In light of this determination, it is not necessary to address the City’s constitutional argument.

Accordingly, the certified question should be answered in the negative.

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

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.

      . The named plaintiff, Paul A. Krohn, is the bankruptcy trustee for plaintiff Alii Katt and was substituted during the course of the litigation.

      . Plaintiffs motion for reconsideration was supported by a letter to the District Court by Craig Curian, a lawyer who identified himself as the principal author of the 1991 revisions to the New York City Human Rights Law—including the provision at issue.

      . “The term ‘person’ includes one or more natural persons, proprietor-ships, partnerships, associations, group associations, organizations, governmental bodies or agencies, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers” (Administrative Code § 8-102 [1]).

      . The same rule applies to political subdivisions of the State, including municipalities (see Sharapata, 56 NY2d at 334).

      . “In the overwhelming majority of jurisdictions which have considered the question, it is now firmly established that exemplary or punitive damages are not recoverable unless expressly authorized by statute or through statutory construction” (18 McQuillin, Municipal Corporations § 53.18.10, at 314 [3d rev ed 2003]; see also City of Newport v Fact Concerts, Inc., 453 US 247, 260 [1981]; Annotation, Recovery of Exemplary or Punitive Damages from Municipal Corporation, 1 ALR4th 448 [municipal liability for punitive damages is disfavored by most courts]).

      . The proposed version stated:
      “Except as otherwise provided by law, any person claiming to be aggrieved by an unlawful discriminatory practice as defined in chapter one of this title, other than unlawful discriminatory practices alleged to have been committed by the city or any agency thereof or other entity performing a governmental function to which entity this chapter applies, or any officer or employee of the city or of such agency or entity, shall have a cause of action in any court of competent jurisdiction for damages and for injunctive relief and such other remedies as may be appropriate, unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice” (Council of City of NY Intro No. 1266, § 2, proposing amendment to Administrative Code § 8-502 [a] [June 13, 1989] [emphasis supplied]).


source: Caselaw Access Project

author:
Graffeo, J.
      Robert J.

license: Public Domain

text:
    [811 NE2d 25, 778 NYS2d 763]
    In the Matter of Robert J., a Person Alleged to be a Juvenile Delinquent, Appellant. In the Matter of Kareem R., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued April 1, 2004;
    decided May 11, 2004

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Raymond E. Rogers, Monica Drinane, Oscar Finkel and Daniel Greenbaum of counsel), for appellants in the first and second above-entitled proceedings.
    Family Court Act § 355.3 (6)—which concerns non-designated felony acts and which provides that “no placement may be made or continued beyond respondent’s eighteenth birthday without the child’s consent”—prohibits the Family Court from involuntarily placing a juvenile beyond his or her eighteenth birthday. (Matter of Jude F., 291 AD2d 165; People ex rel. Maxian v Brown, 77 NY2d 422; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Mickie PP., 279 AD2d 943; Matter of Luis V., 169 Misc 2d 865; Matter of Lloyd v Grella, 83 NY2d 537; People v Cypress Hills Cemetery, 208 AD2d 247; People v Finnegan, 85 NY2d 53, 516 US 919; Matter of Richmond Constructors v Tishelman, 61 NY2d 1; Matter of Rodriguez v Perales, 86 NY2d 361.)

      Michael A. Cardozo, Corporation Counsel, New York City (Dona B. Morris and Francis F. Caputo of counsel), for respondent in the first and second above-entitled proceedings.
    Family Court Act §§ 352.2 and 353.3 authorize Family Court to place juvenile delinquents without their consent beyond their eighteenth birthday. (Matter of Judge Rotenberg Educ. Ctr. v Maul, 91 NY2d 298; Alifieris v American Airlines, 63 NY2d 370; Matter ofSutka v Conners, 73 NY2d 395; Matter of Luis V., 169 Misc 2d 865; Matter of Albano v Kirby, 36 NY2d 526; Matter of General Reins. Corp. v Pink, 269 NY 347; People v Ercole, 308 NY 425; People v Molyneux, 40 NY 113; Effective Communications W. v Board of Coop. Educ. Servs. of Sole Supervisory Dist., 57 AD2d 485; Foote v People, 56 NY 321.)
   OPINION OF THE COURT

Graffeo, J.

We are asked in these appeals to determine whether Family Court may order the placement of a young person, who has been adjudicated a juvenile delinquent, with the Office of Children and Family Services for a period that extends beyond the youth’s 18th birthday. Under the circumstances presented in these cases, we conclude that the Family Court Act authorizes such placements and therefore affirm the order of the Appellate Division in each case.

Robert J.

In March 2001, respondent Robert J., who was then 15 years old, was adjudicated a juvenile delinquent based on a finding that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the third degree. Family Court ordered probation and directed that Robert obey various conditions, including attending school regularly, complying with specific curfews, reporting to a probation officer, completing 100 hours of community service and attending a teen awareness program.

The presentment agency filed a petition in July 2001 alleging that Robert had failed to meet the conditions of his probation. At an interim hearing, respondent, who had quit high school, was instructed to resume attending school pending further proceedings. Thereafter, a hearing was held at which the presentment agency argued that Robert should be placed in the custody of the Office of Children and Family Services (OCFS) in his own best interests and to protect the community. The agency noted that he had failed to attend school regularly or report to his probation officer and his parents had indicated that he was not complying with curfews or obeying their rules at home.

Family Court found that respondent had violated his probation and that placement with OCFS was warranted. The court directed that respondent, who was 16 years old at that time, be placed for 18 months, a period that would extend three months beyond his 18th birthday. His attorney objected, arguing that the Family Court Act did not authorize placement of a youth beyond the age of 18.

Kareem R.

Kareem R. was adjudicated a juvenile delinquent in January 2001, when he was 16 years old, for having committed an act that would constitute the crime of criminal trespass in the third degree if committed by an adult. Family Court ordered a period of probation on the condition that respondent attend school regularly, complete 100 hours of community service, attend counseling and report to his probation officer.

In June 2002, the presentment agency filed a petition alleging that Kareem had violated his probation by failing to report to his probation officer on 10 occasions and community service on 11 occasions, and refusing to attend counseling. At an August hearing, respondent admitted that he had violated his probation as alleged and the Probation Department was directed to conduct an investigation to determine the appropriate disposition. In the meantime, Kareem was placed in interim detention with OCFS.

At the dispositional hearing conducted in October 2002, respondent’s attorney advised the court that respondent had turned 18 years of age in May and, thus, argued that he could not be placed in OCFS custody due to his age. The presentment agency asserted that placement was necessary because respondent’s mother had been unable or unwilling to appropriately supervise him when he was in her care. Noting that he had thrived during the period he spent in interim detention pending the dispositional hearing, Family Court concluded that Kareem should be placed with OCFS for a period of 12 months, less the period of time he had already spent in detention.

Both juveniles appealed the orders to the Appellate Division, contending that Family Court Act § 355.3 (6) did not allow the placement of a juvenile delinquent with OCFS beyond the age of 18 unless the juvenile consented or had committed a designated felony, which was not the case for either of these youths. The presentment agency acknowledged that the Family Court Act restricts an extension of placement beyond the age of 18 but claimed that Family Court’s initial placement of a juvenile in OCFS custody could extend beyond the 18th birthday under Family Court Act §§ 352.2 and 353.3. Since these cases involved initial placements and not extensions, the presentment agency asserted that Family Court had not exceeded its authority. The Appellate Division agreed with the presentment agency and affirmed the Family Court order in each case, relying on its prior decision in Matter of Jude F. (291 AD2d 165 [2d Dept 2002]).

Discussion

The sole issue presented on these appeals is whether the Family Court Act authorizes a court to order an initial placement of a juvenile with OCFS for a period that extends beyond the age of 18 when the juvenile has not committed a designated felony as addressed in Family Court Act § 353.5. To resolve this question, we review the pertinent statutes, the relevant legislative history and the policy concerns underlying the statutory scheme (see generally Matter of Dutchess County Dept. of Social Servs. [Day] v Day, 96 NY2d 149 [2001]; Matter of Jose R., 83 NY2d 388 [1994]).

Family Court Act § 352.2 authorizes five dispositions of a youth who has been adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS, placement in a mental hygiene facility and, in the case of a juvenile who has committed a designated felony, restrictive placement pursuant to Family Court Act § 353.5. Here, after violating the conditions of probation, respondents were placed with OCFS, a disposition allowed under Family Court Act § 352.2 (1) (c). Section 352.2 (1) (c) indicates that placement shall be in accord with section 353.3, entitled “Placement,” which provides, in part:

“If the respondent has committed a felony the initial period of placement shall not exceed eighteen months. If the respondent has committed a misdemeanor such initial period of placement shall not exceed twelve months. If the respondent has been in detention pending disposition, the initial period of placement ordered under this section shall be credited with and diminished by the amount of time spent by the respondent in detention prior to the commencement of the placement unless the court finds that all or part of such credit would not serve the needs and best interests of the respondent or the need for protection of the community” (Family Ct Act § 353.3 [5]).

This initial placement statute does not contain a maximum age limitation. However, Executive Law § 507-a (2) states that “only those youth who have reached the age of seven but who have not reached the age of twenty-one may be placed in, committed to or remain in [OCFS] custody.” It is therefore evident that every form of placement with OCFS must cease upon a young person’s 21st birthday.

In submitting that an initial placement in OCFS custody cannot extend beyond the age of 18 if the youth objects, respondents rely on Family Court Act § 355.3, entitled “Extension of Placement.” Subdivision (6) of that statute states: “Successive extensions of placement under this section may be granted, but no placement may be made or continued beyond the respondent’s eighteenth birthday without the child’s consent and in no event past the child’s twenty-first birthday” (emphasis added). Respondents assert that the term “placement” in the second clause of the sentence refers to initial placements as well as extensions, even though the age restriction language appears only in the extension statute.

The presentment agency counters that respondents were placed pursuant to section 352.2 (1) (c), which directs the court to the initial placement provision without reference to the extension of placement statute. Noting that Family Court would have no reason to consult the extension statute when initially placing a juvenile, the agency urges that the age limitation in the extension statute has no bearing on initial placements.

To explain their reliance on the extension of placement statute, respondents emphasize that initial placements and extensions were once covered in a single statute. Since they claim that the age-limiting language in section 355.3 originally applied to both initial placements and extensions, they argue that there is no basis to conclude that the Legislature intended to alter the application of the restriction when it restructured the statutory scheme.

Even if we assume that respondents’ interpretation of the former version of the statute is correct, we are unpersuaded that the history of these statutes supports their interpretation of the present statutory structure. When the Family Court Act was first adopted in 1962, there was no article dedicated exclusively to juvenile delinquency proceedings (see L 1962, chs 686, 700). Article 7 encompassed both juvenile delinquency matters and persons in need of supervision (PINS). Placements and extensions of placement were addressed in one statute—former Family Court Act § 756. In language similar to that now appearing in section 355.3, the extension of placement statute on which respondents rely, former section 756 prohibited placement of a youth beyond the 18th birthday in the case of a male or 20th birthday in the case of a female (the provision was later amended to provide a uniform age 18 limitation for both genders).

In the 1982 recodification of the Family Court Act, the Legislature made two changes that are significant in resolving the issue here: it created a new Family Court Act article 3 devoted exclusively to juvenile delinquency matters and it enacted two separate statutes within that article, one dealing with initial placement, the other with extension of placement (L 1982, ch 920). Only the latter contains age-limiting language.

Prior to the 1982 recodification, the Legislature adopted the designated felony placement provision now codified at Family Court Act § 353.5 (see L 1976, ch 878, § 16), including an age restriction explicitly applicable to both initial placements and extensions of placement. A juvenile delinquent who has committed a designated felony cannot be placed—either initially or pursuant to an extension—for a term beyond the age of 21 (Family Ct Act § 353.5 [4] [d]), a limitation which dovetails with the language in Executive Law § 507-a restricting the authority of OCFS to custody of individuals under the age of 21 in any circumstance. It is clear that the Legislature knew how to include age-restricting language in a juvenile delinquency placement provision when it wanted to do so, yet no such language was inserted in section 353.3, the initial placement provision relied on by Family Court when placing these respondents. In view of the evolution of this legislative framework, we cannot presume that the Legislature, having adopted two statutes with distinct titles and terms, nonetheless had no intent to distinguish between initial placement and extension of placement in juvenile delinquency cases, particularly since there is a rational policy-based explanation for the Legislature’s decision.

By authorizing Family Court to place a young person adjudicated as a juvenile delinquent with OCFS beyond the age of 18, the Legislature has strengthened probation as a viable option for older juveniles. Family Court can attempt to keep a young person in the home environment and order probation (as occurred in these cases), rather than resorting to placement as the initial disposition, because placement can be tried later if probation proves ineffective. By the same token, individuals approaching the age of 18 who are on probation have a greater incentive to adhere to the conditions imposed by Family Court, knowing that if they do not abide the conditions, placement remains an alternative available to the court. Under the interpretation respondents recommend, just the opposite would be true—a young person could ignore the conditions of probation without serious consequences because Family Court’s only redress under Family Court Act § 352.2 would be to continue probation or grant a conditional discharge. We see no evidence that the Legislature intended such a result, which would be “at variance with the policy and purpose of the legislation” (Matter of Jose R., 83 NY2d at 393 [citations omitted]).

The overriding intent of the juvenile delinquency article is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public. There are circumstances when it is in the best interests of a juvenile to be placed in OCFS custody, even if the individual is 18 years of age or older, because OCFS is in a position to ensure that youths in custody attend school, obey curfews, take part in counseling and vocational training, and participate in other programs aimed at rehabilitation.

As these cases demonstrate, OCFS can sometimes make a difference where a young person’s family has been unable to do so. In Kareem R., for example, Family Court noted that respondent—who had not been attending school or complying with other rules while living at home—thrived during the interim detention period. Thus, Kareem benefitted from OCFS placement, even though he had reached the age of 18. Youths who have committed acts bringing them into the juvenile justice system deserve every chance to obtain an education and change the direction of their lives. The Legislature has reasonably determined that if Family Court finds placement with OCFS is the best means to achieve that goal, it should be authorized to employ that measure once, even if the juvenile is age 18 or older at the time placement is ordered.

In light of the statutory structure, the legislative history of the pertinent provisions and the unique policy concerns arising in juvenile delinquency matters, the decision to include the age-limiting language in the extension statute but not in the initial placement statute must be given effect (see generally Matter of Tabitha LL., 87 NY2d 1009 [1996]). We hold that Family Court is authorized to order an initial placement that extends beyond a youth’s 18th birthday, as occurred in each of the cases under review, and have no basis to disturb the placement orders.

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

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

In each case: Order affirmed, without costs.


author: R.S. Smith, J.

text:
    [811 NE2d 30, 778 NYS2d 768]
    Denise Hanford, Appellant, v Plaza Packaging Corp. et al., Defendants, and Morton Landowne, Respondent.
    Argued March 30, 2004;
    decided May 13, 2004

      POINTS OF COUNSEL

      Alexander J. Wulwick, New York City, and Ginarte, O’Dwyer, Winograd & Laracuente, Newark, New Jersey, for appellant.
    Plaintiff is not barred by her receipt of workers’ compensation benefits, or by res judicata, from maintaining a tort action against her coemployee, based on his commission of an intentional wrong outside the scope of his or plaintiffs employment. (Maines v Cronomer Val. Fire Dept., 50 NY2d 535; Mazarredo v Levine, 274 App Div 122; Bardere v Zafir, 102 AD2d 422, 63 NY2d 850; Werner v State of New York, 53 NY2d 346; Macchirole v Giamboi, 97 NY2d 147.)

      Blecher Mendel & Fedele, New York City (Daniel B Lund of counsel), for respondent.
    Plaintiffs application for, acceptance of and retention of benefits for an accidental injury have a res judicata effect barring her duplicative claim for alleged intentional harm against plaintiffs coemployee. (Macchirole v Giamboi, 97 NY2d 147; Maines v Cronomer Val. Fire Dept., 50 NY2d 535; Werner v State of New York, 53 NY2d 346; O’Connor v Midiria, 55 NY2d 538; Orzechowski v Warner-Lambert Co., 92 AD2d 110; Cunningham v State of New York, 60 NY2d 248; Martin v Casagrande, 159 AD2d 26, 76 NY2d 1018; Lowe v Kinn, 199 AD2d 743, 83 NY2d 753; Wilson v Gerstenzang, Weiner & Gerstenzang, 245 AD2d 859.)
   OPINION OF THE COURT

R.S. Smith, J.

The issue presented is whether an action for an intentional tort is barred by the plaintiffs receipt of workers’ compensation benefits where both parties were employees of the same firm, but the defendant’s alleged misconduct arose from purely personal motives and was not in furtherance of the employer’s business. We answered this question in the negative in Maines v Cronomer Val. Fire Dept. (50 NY2d 535 [1980]), and Maines compels a reversal here.

Denise Hanford brings this action against Morton Landowne, alleging that Landowne concealed a video camera in a locker room on the premises of their employer, in an unsuccessful attempt to tape Hanford, while she changed her clothes. Hanford’s complaint charges Landowne with violations of the New York Human Rights Law, intentional infliction of emotional distress, and discrimination and sexual harassment “as prima facie tort.” Hanford applied for and received workers’ compensation benefits arising out of the incident.

Supreme Court dismissed Hanford’s action against Landowne on the basis of the exclusivity provisions of the Workers’ Compensation Law, and the Appellate Division affirmed, two Justices dissenting. Inexplicably, the Appellate Division majority opinion does not cite Maines, though the dissent points out that it is this Court’s leading decision on the subject.

Maines was an action by a firefighter against fellow firefighters who had thrown him into a garbage dumpster as a prank. The defendant firefighters moved to dismiss under the Volunteer Firefighters’ Benefit Law; section 20 of that law incorporates by reference Workers’ Compensation Law § 29. Section 29 (6) of the Workers’ Compensation Law provides in part: “The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . when such employee is injured ... by the negligence or wrong of another in the same employ . . . .” In Maines, we held this provision inapplicable, saying:

“[T]he words ‘in the same employ’ as used in the Workers’ Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must himself have been acting within the scope of his employment and not have been engaged in a willful or intentional tort.” (50 NY2d at 543.)

Maines is indistinguishable from this case, and Landowne does not attempt to distinguish it. He does argue that Maines has been “narrowed” in subsequent cases, but his argument is ill-founded.

Landowne relies on Werner v State of New York (53 NY2d 346 [1981]) and O’Connor v Midiria (55 NY2d 538 [1982]). In those cases we held that, where the Workers’ Compensation Board has determined that certain injuries were suffered accidentally and in the course of employment, a subsequent action against the employer for an intentional tort based on the same event is barred by the exclusive remedy and finality provisions of the Workers’ Compensation Law, and by principles of res judicata. In O’Connor we also dismissed an action against a supervisory employee of the same employer, who was not himself accused of intentional misconduct, but was sued on the theory that he knew of the offender’s “propensity” for such misconduct (55 NY2d at 540).

Neither in Werner nor in O’Connor did we contradict or question the holding of Maines—that an employee who commits an intentional tort outside of the scope of his employment is not protected by Workers’ Compensation Law § 29. We explained in Maines, as the Appellate Division dissent notes, that the same event may be “accidental” from the employer’s point of view (thus justifying a workers’ compensation award) and intentional from the point of view of the perpetrator. Thus there is no tension between the holding of Maines and the holding of Werner and O’Connor. Indeed, we noted in Werner, with a citation to Maines: “[I]t is clear that subdivision 6 of section 29 of the Workers’ Compensation Law does not bar an employee who has accepted compensation benefits from suing a coemployee who has committed an intentional assault upon him . . ..” (53 NY2d at 351 n 1.)

Under Maines, Hanford’s complaint against Landowne was erroneously dismissed.

Accordingly, the order of the Appellate Division should be reversed, with costs, the complaint reinstated against defendant Landowne and the certified question answered in the negative.

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

Order reversed, etc.

      . Hanford’s claims against other defendants are not in issue on this appeal.

      . We noted in Maines that the relevant provisions of the Volunteer Firefighters’ Benefit Law and the Workers’ Compensation Law were different in some respects, but we expressly declined to predicate our ruling in Maines on the differences.

      . This does not mean, of course, that Hanford can recover twice for the same injuries. To the extent that she recovers damages from Landowne her recovery may be subject to recoupment by the workers’ compensation carrier, as with any recovery by a workers’ compensation claimant against a third party. (See Workers’ Compensation Law § 29 [1].)


author: Read, J.

text:
    [811 NE2d 1103, 779 NYS2d 449]
    Bertha Williams, Individually and as Mother and Natural Guardian of Tennille Williams, an Infant, et al., Appellants, v City of New York, Respondent, et al., Defendants. Elizabeth M. McCormick, Individually and as Executrix of John F. McCormick, Deceased, Appellant, v City of New York et al., Respondents.
    Argued March 30, 2004;
    decided May 11, 2004

      POINTS OF COUNSEL

      Queller Fisher Dienst Serrins Washor & Kool LLP, New York City (Richard A. Dienst and Barry Washor of counsel), and Seligson Rothman & Rothman (Martin S. Rothman and Alyne

      I. Diamond of counsel), for appellants in the first above-entitled action. I. The City of New York’s radical alteration of the locker room into a makeshift detention cell gravely increased and aggravated the “recognized hazards” in decedents’ “employment and [ ] place of employment” and failed to “provide reasonable and adequate protection to the[ir] lives [and] safety” (Labor Law § 27-a [3] [a] [1]) thereby rendering viable plaintiffs’ General Municipal Law § 205-e actions against the City. (Matter of Asman v Ambach, 64 NY2d 989; Balsamo v City of New York, 287 AD2d 22; Hartnett v New York City Tr. Auth., 86 NY2d 438; Gonzalez v Iocovello, 93 NY2d 539; Schiavone v City of New York, 92 NY2d 308; Ruotolo v State of New York, 83 NY2d 248; Giuffrida v Citibank Corp., 100 NY2d 72; Criscione v City of New York, 97 NY2d 152; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Castro v United Container Mach. Group, 96 NY2d 398.) II. Administrative Code of the City of New York §§ 27-127 and 27-128 are firm predicates under the law and the facts for the verdict rendered. (Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559; Chaffee v Union Dry Dock Co., 68 App Div 578; Lombardi v Stout, 80 NY2d 290; Farrington v City of New York, 240 AD2d 697; Corbisiero v City of New York, 240 AD2d 694; Sergio v Benjolo, 168 AD2d 235; Grawin v Tudor Place Assoc., 260 AD2d 314; O’Grady v New York City Hous. Auth., 259 AD2d 442; Giuffrida v Citibank Corp., 100 NY2d 72; Simons v City of New York, 252 AD2d 451.)

      Michael A. Cardozo, Corporation Counsel, New York City {Barry P. Schwartz and Leonard Koerner of counsel), for respondent in the first above-entitled action.
    I. Assuming arguendo, that Labor Law § 27-a (3) (a) (1) and Administrative Code of the City of New York §§ 27-127 and 27-128 were even factually applicable here, plaintiffs nonetheless failed to make out a prima facie showing as to their violation. This is because the safety of the Queens County District Attorney Detective Squad detectives in the securing and detaining of prisoners was readily and easily ensured separately by handcuffing both of a prisoner’s hands to the pipe installed to the locker room’s center table for that purpose, and by the other available and simple procedures or practices of (a) not leaving a prisoner alone there; (b) performing a frisk before leaving the premises with the prisoner; (c) either rear-handcuffing or front-handcuffing with a security belt, prior to placing the prisoner in a vehicle’s back seat; and (d) thereafter having a detective sit next to that individual. (Hartnett v New York City Tr. Auth., 86 NY2d 438; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v New York State Indus. Bd. of Appeals, 103 AD2d 489; National Realty & Constr. Co. v Occupational Safety & Health Review Commn., 489 F2d 1257; Magma Copper Co. v Marshall, 608 F2d 373; General Dynamics Corp. v Occupational Safety & Health Review Commn., 599 F2d 453; Usery v Marquette Cement Mfg. Co., 568 F2d 902; Getty Oil Co. v Occupational Safety & Health Review Commn., 530 F2d 1143; Brennan v Occupational Safety & Health Review Commn., 502 F2d 946; REA Express, Inc. v Brennan, 495 F2d 822; Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383.) II. At any rate, the Appellate Division majority correctly ruled that, as a matter of law, these cases did not fall within the purview of Labor Law § 27-a (3) (a) (1). The decision by Queens County District Attorney Detective Squad commander Lieutenant Franceschini, made in consultation with and on the recommendation of his squad’s two supervising sergeants, to install the pipe for prisoner detention was an exercise of reasoned professional judgment and discretion as to which the statute was not intended to apply. That aside, both the legislative history of section 27-a (3) (a) (1) and common sense in light of the inherent as well as unpredictable dangerous nature of police duties, overwhelmingly demonstrate that the statute only encompasses physical and environmental hazards in the workplace and not the danger at issue here regarding the intentional infliction of harm. (Cosgriff v City of New York, 93 NY2d 539; Balsamo v City of New York, 287 AD2d 22; Maiello v City of New York, 273 AD2d 284; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; McKechnie v New York City Tr. Police Dept., 130 AD2d 466; Lauer v City of New York, 95 NY2d 95; Mon v City of New York, 78 NY2d 309; McCormack v City of New York, 80 NY2d 808; Harland Enters, v Commander Oil Corp., 64 NY2d 708; Saarinen v Kerr, 84 NY2d 494.) III. All five Appellate Division Justices properly held that, as a matter of law, the Administrative Code of the City of New York §§ 27-127 and 27-128 requirement that owners keep their buildings “safe,” does not encompass these lawsuits. This is because (a) the liability sought to be imposed is not based on harm which occurred on the subject premises; (b) the harm, in any event, did not arise from a structural or design defect or any other construction-related concern; and (c) those types of defects in no way include plaintiffs’ theory at trial that was, by contrast, predicated only on how the Queens County District Attorney Detective Squad locker room was used and the alleged transient condition of a lock on one of its lockers. (Gordon v American Museum of Natural History, 67 NY2d 836; Aversa v New York City Hous. Auth., 233 AD2d 217; Lombardi v Stout, 80 NY2d 290; Kush v City of Buffalo, 59 NY2d 26; Luce v Hartman, 6 NY2d 786; Caldwell v Village of Is. Park, 304 NY 268; Holgerson v South 45th St. Garage, 16 AD2d 255, 12 NY2d 1011; Matter of Guardian Cas. Co., 253 App Div 360, 278 NY 674; Daggett v Keshner, 284 App Div 733; Morales v City of New York, 70 NY2d 981.) IV If this Court should nonetheless determine that the relied-on Labor Law and/or Administrative Code of the City of New York provisions are applicable here and were violated, reinstatement of the judgment is still not warranted. Instead, there should be a remand to the Appellate Division for resolution of the other issues raised by the City of New York on its appeal to, but not addressed by, that Court. (Rabinowitz v City of New York, 286 AD2d 724; Capotosto v City of New York, 288 AD2d 419, 98 NY2d 602; Criscione v City of New York, 97 NY2d 152; O’Connor v City of New York, 280 AD2d 309, 96 NY2d 716; Schiavone v City of New York, 92 NY2d 308; Mittl v New York State Div. of Human Rights, 100 NY2d 326; Matter of P.M.S. Assets v Zoning Bd. of Appeals, 98 NY2d 683; Bluebird Partners v First Fid. Bank, 97 NY2d 456; Sena v Town of Greenfield, 91 NY2d 611; Urquhart v New York City Tr. Auth., 85 NY2d 828.)

      The Breakstone Law Firm, P.C., Bellmore (Jay L.T. Break-stone of counsel), for Detectives’ Endowment Association, amicus curiae in the first above-entitled action. Labor Law § 27-a is a proper predicate for General Municipal Law § 205-e liability. (Balsamo v City of New York, 287 AD2d 22; Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225.)

      Levy & Levy, New York City (Susan J. Levy and Judith R. Levy of counsel), for appellant in the second above-entitled action.
    I. Because the First Department’s holding is a clear departure from well-established precedent, completely misconstrues General Municipal Law § 205-e, and is fundamentally unfair by vesting total discretion in the District Attorney’s hands, it abrogates plaintiffs rights under General Municipal Law § 205-e, and therefore the decision should be reversed herein. (Giuffrida v Citibank Corp., 100 NY2d 72; Carlson v City of Tonawanda, 221 AD2d 1011; Galapo v City of New York, 219 AD2d 581; Baiamonte v Buongiovanni, 207 AD2d 324; Healy v Moeller, 242 AD2d 366; Maisky v Towner, 196 AD2d 532; Costantini v Benedetto, 190 AD2d 888; Vertucci v Diaz, 192 AD2d 703; People v Cruz, 48 NY2d 419; Matter of Bath & Hammondsport R.R. Co. v New York State Dept. of Envtl. Conservation, 73 NY2d 434.) II. Because the Penal Law alleged herein, sections 125.15, 125.10 and 35.30, and Criminal Procedure Law § 120.80 (3) and § 690.50 (3) fall squarely under the standards set forth in Desmond v City of New York (88 NY2d 455 [1996]), Gonzalez v Iocovello (93 NY2d 539 [1999]), Cosgriff v City of New York (93 NY2d 539 [1999]) and Galapo v City of New York (95 NY2d 568 [2000]), as well as General Municipal Law § 205-e (3), these statutes should be recognized as valid predicates, thus reversing the lower court’s holding and reinstating plaintiff-appellant’s complaint herein. (People v Shack, 86 NY2d 529; People v Cruz, 48 NY2d 419; People v Kealey, 33 NY2d 818; Rodriguez v City of New York, 189 AD2d 166; Carlson v City of Tonawanda, 221 AD2d 1011; People v Sullivan, 68 NY2d 495; People v Cameron, 244 AD2d 350, 91 NY2d 940; People v Soto, 266 AD2d 245; People v Kealey, 33 NY2d 818; People v Pena, 169 Misc 2d 75.) III. Because one of the specific goals of General Municipal Law § 205-e is to provide equivalent rights for injured or deceased police officers and ordinary citizens, the First Department’s narrow holding herein should not stand and this case should be reinstated herein. (Giuffrida v Citibank Corp., 100 NY2d 72; Mullen v Zoebe, Inc., 86 NY2d 135; O’Connor v City of New York, 280 AD2d 309, 96 NY2d 716; Lubecki v City of New York, 304 AD2d 224; Summerville v City of New York, 257 AD2d 566; Rodriguez v City of New York, 189 AD2d 166; McCummings v New York City Tr. Auth., 81 NY2d 923; Velez v City of New York, 157 AD2d 370; Wilkes v City of New York, 308 NY 726; Lubelfeld v City of New York, 4 NY2d 455.) IV. Because another important goal underlying General Municipal Law § 205-e is to enforce the statutes and ordinances of New York through civil remedies as provided in General Municipal Law § 205-e, the First Department’s holding was clearly erroneous as it prevents the enforcement of the Penal Law and Criminal Procedure Law in civil proceedings. (Giuffrida v Citibank Corp., 100 NY2d 72; Manning v Brown, 91 NY2d 116; Barker v Kallash, 63 NY2d 19; Gaither v City of New York, 300 AD2d 255; Masone v Unishops of Modell’s Inc., 73 AD2d 611; Adamowicz v Shafer, 155 Misc 2d 695; Henningsen v Markowitz, 132 Misc 547; Reed v State of

      New York, 78 NY2d 1; Kalra v Kalra, 149 AD2d 409; Johnson v State of New York, 253 AD2d 274.) V Because the legislative history shows the legislative intent to provide broad remedial rights under General Municipal Law § 205-e, the First Department’s novel interpretation of section 205-e, which superimposes the requirement for a criminal conviction prior to allowing the Penal Law to serve as predicate, serves to rewrite section 205-e, thereby eviscerating plaintiff’s remedial rights under section 205-e in direct contravention of its legislative history. Therefore, the lower court’s decision should be reversed and the complaint should be reinstated herein. (Santangelo v State of New York, 71 NY2d 393; Healy v Moeller, 242 AD2d 366; St. Jacques v City of New York, 88 NY2d 920; Schiavone v City of New York, 92 NY2d 308; Gonzalez v Iocovello, 93 NY2d 539.) VI. Because the trial court failed to apply the proper standards for summary judgment, and rather determined issues of fact in favor of the movant, the trial court’s granting of summary judgment is also clear error and should be reversed herein. (McCummings v New York City Tr. Auth., 81 NY2d 923; McCauley v New York City Hous. Auth., 232 AD2d 614; Velez v City of New York, 157 AD2d 370; People v Goetz, 68 NY2d 96.

      Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry P. Schwartz of counsel), for respondents in the second above-entitled action.
    I. The Appellate Division correctly held that the Penal Law and Criminal Procedure Law provisions regarding the justified use of deadly physical force are not legally sufficient predicates for a General Municipal Law § 205-e claim, because they do not establish a standard of care upon which a civil cause of action can be based. (Brocato v City of New York, 294 AD2d 281; Brunette v City of New York, 269 AD2d 347; McCummings v New York City Tr. Auth., 81 NY2d 923, 510 US 991; People v McManus, 67 NY2d 541; Luhecki v City of New York, 304 AD2d 224; McCauley v New York City Hous. Auth., 232 AD2d 614; Herring v City of Syracuse, 63 AD2d 833.) II. The Appellate Division was also correct that none of the other Penal Law statutory provisions asserted by plaintiff here pertaining to assault and criminally negligent and reckless behavior may be proper predicates. This is because (1) they are broad-based, general provisions that do not give rise to a private right of action for private citizen plaintiffs; and (2) they all are subject to and, therefore, incorporate by necessary implication the Penal Law § 35.30 provisions on the justified police use of deadly physical force, which incorporate and permit the exercise of professional judgment and discretion. (Sega v

      State of New York, 60 NY2d 183; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; Telaro v Telaro, 25 NY2d 433; Matter of Rivera v Smith, 63 NY2d 501; American Sugar Ref Co. of N.Y. v Waterfront Commn. of N.Y. Harbor, 55 NY2d 11, appeal dismissed sub nom. New York Shipping Assn., Inc. v Waterfront Commn. of N.Y. Harbor, 458 US 1101; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314; Sheehy v Big Flats Community Day, 73 NY2d 629; Uhr v East Greenbush Cent. School Dist., 94 NY2d 32; Mark G. v Sabol, 93 NY2d 710; Carrier v Salvation Army, 88 NY2d 298.) III. In any event, even if the claimed Penal Law provisions could be valid predicates for plaintiff’s General Municipal Law § 205-e cause of action, plaintiff’s complaint was nonetheless properly dismissed, because both Officer Huvane and Officer Curran were, as a matter of law, justified in firing their weapons at an armed perpetrator who struggled with Huvane, never dropped her weapon, and fired twice. (Schiavone v City of New York, 92 NY2d 308; Rodriguez v City of New York, 189 AD2d 166; Summerville v City of New York, 257 AD2d 566, 94 NY2d 755; Galapo v City of New York, 95 NY2d 568; Brunette v City of New York, 269 AD2d 347; Salim v Proulx, 93 F3d 86.)
   OPINION OF THE COURT

Read, J.

These appeals involve the tragic deaths of three New York City police officers killed in the line of duty. Plaintiffs seek recovery under General Municipal Law § 205-e, which creates a statutory right of action where an officer’s injury or death is caused by a violation of certain statutes, ordinances, rules, orders and requirements of a governmental entity. In each case, the Appellate Division dismissed plaintiffs’ claims, finding that section 205-e liability could not be sustained. For the reasons that follow, we now affirm in both cases.

I.

A. McCormick

On April 27, 1988, a team of 19 police officers from the Bronx Narcotics Unit executed a no-knock search warrant for a drug raid at an apartment in Manhattan. The officers, dressed in plain clothes with police badges displayed around their necks or police vests over their clothing, repeatedly yelled “Police, open the door,” as they forced the apartment’s door open with a battering ram. Officer John P Huvane, who wielded the battering ram, rushed into the apartment in the lead as part of the six-member entry team. He threw the battering ram in the direction of a barking pit bull, later discovered to be tied up, and unholstered his service revolver.

Huvane immediately encountered an unarmed woman, whom he readily apprehended after she had fled to the bedroom in the back of the apartment. He quickly handed her off to other members of the entry team as he caught sight of a second woman, Mercedes Perez, standing behind the bedroom door with a gun in her hand. When Huvane called out “Police. Drop the gun,” Perez, who stood slightly over five-feet tall and weighed approximately 100 pounds, aimed the gun point-blank at Huvane’s head. In the flash that Huvane saw Perez, he did not notice that she was visibly pregnant.

Huvane, who was six-feet, two-inches tall and weighed 210 pounds, initially “swatted” or pushed Perez’s gun away from his face with his hand, as he had been trained to do to protect himself. He did not succeed in disarming her in this fashion, however, and a scuffle ensued. Perez’s gun discharged, causing a burn mark on Huvane’s wrist, and Huvane fired two rounds at Perez. As Perez, gun in hand, continued to “come[ ] at” Huvane, he retreated and bumped up against the bed. Falling off balance, Huvane fired a third round at Perez. Huvane testified that, as he came to rest partway on the bed, he thought for certain that he was about to die.

Officer James P Curran, another member of the entry team, heard the burst of gunfire as he was running into the bedroom behind Huvane, whom he observed “grappling” with Perez. As Huvane was falling backwards toward the bed, Curran stepped between Perez and Huvane and fired two shots at Perez “to stop her from shooting again at Huvane.” Perez slumped forward and Curran caught her and propped her up against the wall, but did not disarm her. After he heard another gunshot, which came from Perez’s direction, Curran flung himself on top of Huvane, who was supine on the bed. Curran noticed Perez, crouched over but moving rapidly, leaving the bedroom, still armed. Perez, who suffered two gunshot wounds, was soon caught and disarmed by another member of the entry team. The time elapsed from the first until the last shot fired was a matter of seconds.

Plaintiffs decedent, Sergeant John F. McCormick, was fatally wounded by a bullet fired from one of the officers’ guns during their confrontation with Perez. This bullet traveled through the bedroom door and lodged in McCormick’s neck. Plaintiff brought a wrongful death action alleging, among other things, that the City was liable for decedent’s death based on General Municipal Law § 205-e. As relevant here, plaintiff predicated section 205-e liability on alleged violations of provisions of the Criminal Procedure Law and the Penal Law relating to the defense of justification, as well as on sections of the Penal Law pertaining to assault, criminally negligent homicide, reckless endangerment and manslaughter.

The City moved for summary judgment and dismissal for failure to state a claim, arguing that the officers were justified in using deadly physical force. Supreme Court granted the City’s motion and dismissed the complaint. Quoting extensively from the officers’ EBT and trial testimony, Supreme Court observed that “[a]s sad as this case is, the police officers who fired had a loaded gun pointed in their direction. In these circumstances there is no issue of fact as to whether the police conduct was legally justified.” The trial court concluded that “in the absence of any contested material issue of fact the use of deadly physical force by the officers, under these circumstances, was justified and not a violation of the Penal Law.”

Observing that the justification statutes “do not establish a standard of care upon which a civil cause of action can be based, but rather a defense to a criminal prosecution” (307 AD2d 231, 232 [1st Dept 2003] [emphasis in original; internal quotation marks omitted]), the Appellate Division affirmed on an alternative basis. Specifically, the Appellate Division concluded that “[m]erely an ‘alleged violation’ of [other] provisions of the Penal Law, which are as yet unproven in a criminal proceeding, cannot serve as a predicate for a civil claim under General Municipal Law § 205-e, as a matter of law” {id.).

B. Williams

On November 13, 1989 while assigned to the Queens County District Attorney Detective Squad, Detectives Keith Williams and Richard Guerzon took custody of a prisoner, Jay “Stoney” Harrison, pursuant to a “takeout order,” and transported him from the Rikers Island Correctional Facility to the District Attorney’s (DA) office for a polygraph test. Upon arrival at the DA’s office, Harrison was placed in the Detective Squad’s locker room, which doubled as a detention area. Harrison was seated at the table in the locker room, with one of his hands cuffed to a metal pipe installed for just this purpose. The pipe was mounted several inches above the table’s surface, and ran the table’s length. Despite being handcuffed, Harrison, while left alone, managed to remove a service revolver from one of the nearby lockers and conceal it on himself. On the return trip to Rikers Island, he shot and killed Williams and Guerzon with the stolen revolver.

Plaintiffs brought separate civil actions alleging, among other things, that the City was liable for decedents’ deaths based on General Municipal Law § 205-e. As relevant here, plaintiffs predicated section 205-e liability on Labor Law § 27-a, entitled “Safety and health standards for public employees,” and Administrative Code of the City of New York §§ 27-127 and 27-128, which require that buildings be maintained in a safe condition and hold owners responsible for such maintenance.

The cases were consolidated and proceeded to trial on April 21, 1999, 10 years after the officers’ deaths. Plaintiffs’ theory was that “the locker room was improperly used as a prisoner detention area and that the prisoner had gained access to the locker containing the gun because its lock was either open or defective” (304 AD2d 562, 563 [2d Dept 2003]). Plaintiffs’ expert, a former assistant chief with the New York City Police Department, opined that the locker room was “[t]otally inadequate” as a detention facility.

The jury found the City liable for violating Labor Law § 27-a as well as the Code provisions, and returned verdicts of $5,260,252 for the Williams plaintiffs, and $8,975,625 for the Guerzon plaintiffs. The City renewed its motion to dismiss for failure to establish a prima facie case, on which the trial court had reserved decision, and moved to set aside the verdict for legally insufficient evidence. Supreme Court denied the motions and the City appealed.

A divided Appellate Division reversed the judgment, on the law, granting the City’s motion to set aside the verdicts and dismissing the complaints. The majority found that there was no evidence that “the locker room was maintained in an unsafe condition within the meaning of’ Administrative Code §§ 27-127 and 27-128 (304 AD2d at 564). The Appellate Division also found that the hazard causing decedents’ deaths was “the practice of holding prisoners in proximity to lockers where firearms were kept” (id. at 565). Accordingly, Labor Law § 27-a (3) (a) (1) was not implicated because it “encompasses physical and environmental hazards in the workplace, not the use to which a room is put” (id.). The dissenting Justices agreed with the majority that the Code provisions were not violated, but considered section 27-a (3) (a) (1) applicable because it was not limited to physical and environmental hazards, and placed a general duty on employers to “prevent hazardous conditions from developing, either in employment or the place of employment” (id. at 567).

II.

Common law barred a police officer from recovering in tort for injuries suffered in the line of duty (see Santangelo v State of New York, 71 NY2d 393, 397 [1988]). In 1989, the Legislature modified the common law by adding section 205-e to the General Municipal Law (L 1989, ch 346); and in 1996, the Legislature “largely abolishe[d]” the common law by enacting section 11-106 of the General Obligations Law (see Giuffrida v Citibank Corp., 100 NY2d 72, 78 [2003]). The latter provision allows police officers to bring tort claims for most work injuries that occur in the line of duty. Importantly, however, section 11-106 maintains the common-law bar on tort claims against “the police officer’s . . . employer or co-employee” (General Obligations Law § 11-106 [1]). Thus, while a police officer can assert a common-law tort claim against the general public, liability against a fellow officer or employer can only be based on the statutory right of action in General Municipal Law § 205-e.

To make out a claim under section 205-e, a plaintiff must “[1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm” (see Giuffrida, 100 NY2d at 79 [internal quotation marks omitted]). These appeals involve the first requirement of that standard; namely, whether the defendants failed to comply with a statute or ordinance.

Section 205-e (1) creates a statutory cause of action where a police officer is injured by another’s failure “to comply with the requirements of any of the statutes, ordinances, rules, orders • and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus” (emphasis added). While this language is seemingly limitless, “it is well settled that the statute cannot reasonably be applied literally in accordance with its broad language. . . . Rather, as a prerequisite to recovery, a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (Galapo v City of New York, 95 NY2d 568, 574 [2000] [internal quotation marks omitted], quoting Desmond v City of New York, 88 NY2d 455, 463, 464 [1996]). At the same time, a series of amendments to section 205-e teaches us that we should apply this provision “expansively” so as to favor recovery by police officers whenever possible (see Gonzalez v Iocovello, 93 NY2d 539, 548 [1999]).

In Galapo, we held that the City Police Department Patrol Guide cannot give rise to section 205-e liability, primarily because it is not a “duly-enacted body of law or regulation” (95 NY2d at 574), but also because imposing liability based on the Guide would “allow a trier of fact ... to second-guess line-of-duty decisions on matters affecting public safety” (id. at 575). In Desmond, we similarly refused to predicate section 205-e liability on a City Police Department internal guideline that required police officers to exercise “individual judgment” about the relative safety risks of their actions (88 NY2d at 464).

In Gonzalez, however, we found that a violation of section 1104 (e) of the Vehicle and Traffic Law could serve as a predicate for section 205-e liability. That provision creates a privilege exempting drivers of authorized emergency vehicles from certain provisions in the Vehicle and Traffic Law, but “explicitly qualifies that privilege” (93 NY2d at 551) by providing that “the driver of an authorized emergency vehicle [shall not be relieved] from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]). We distinguished section 1104 from the administrative provisions in Galapo and Desmond in part because of its nature as a statute enacted by the Legislature. We also stated, however, that unlike the administrative provisions in the other cases, section 1104 “mandates a reasonably defined and precedentially developed standard of care,” and does not require the trier of fact to “second-guess an officer’s split-second weighing of choices” (93 NY2d at 551).

III.

Against this backdrop, we are asked whether plaintiffs in McCormick and Williams have established claims under section 205-e premised on alleged violations of the Penal Law and the Labor Law respectively. Our prior cases provide the framework for determining whether these statutes may serve as predicates; however, the question of whether the defendants have “failed to comply with a statute” is not answered merely by interposing a proper predicate. Liability cannot be imposed under section 205-e unless a plaintiff has established that a statute was, in fact, violated. While we hold that the Penal Law is a proper predicate for section 205-e liability, the plaintiffs in McCormick did not establish that the Penal Law was violated by Huvane and Curran. Similarly, the plaintiffs in Williams failed to establish a violation of Labor Law § 27-a.

A. McCormick

Preliminarily, we reject the notion that a section 205-e claim may be premised solely on a violation of the justification defenses found in the Penal Law or the Criminal Procedure Law (see Brocato v City of New York, 294 AD2d 281, 281-282 [1st Dept 2002] [Penal Law § 35.30 “does not establish a standard of care upon which a civil cause of action can be based, but rather a defense”]). We conclude, however, that a claim may be predicated on a violation of those Penal Law sections that prohibit specific acts. Indeed, we are hard put to find a more “well-developed body of law and regulation that imposes clear duties” (Galapo, 95 NY2d at 574 [internal quotation marks omitted]). Further, making a conviction prerequisite to a section 205-e claim predicated on the Penal Law conflates the issue of which statutes may serve as predicates with the question of whether a statute has been violated in a particular case. Accordingly, plaintiff may predicate her claims on alleged violations of the assault, homicide, reckless endangerment and manslaughter provisions of the Penal Law. Her challenge lies in demonstrating that the conduct of Huvane and Curran violated these provisions.

Plaintiffs burden is further complicated by the fact that Huvane and Curran were acting in the line of duty when McCormick was killed, and contend that they employed the force necessary to defend themselves against what they reasonably believed to be the use or imminent use of deadly physical force (see Penal Law § 35.30 [1] [c]). Like the administrative materials involved in Galapo and Desmond, Penal Law § 35.30’s justification defense requires a trier of fact to “second-guess an officer’s split-second weighing of choices.” General Municipal Law § 205-e liability is based on violation of a law that imposes “clear duties,” which cautions against predicating a section 205-e claim on alleged Penal Law violations that implicate the justification defense. Mindful of the Legislature’s direction that we construe section 205-e broadly, however, we conclude that a conviction is not necessary to find a violation of the Penal Law for purposes of section 205-e liability. Nonetheless, because the provisions that plaintiff claims were violated require proof beyond a reasonable doubt and even then, otherwise criminal conduct is excused if justified, her burden is substantial in the absence of a conviction.

We hold that where no criminal charges have been brought against a section 205-e defendant, a rebuttable presumption exists that the Penal Law has not been violated. A defendant who has not been charged with a crime is entitled to summary judgment on a section 205-e claim predicated on the Penal Law where a reasonable view of the evidence supports the conclusion either that no prohibited conduct took place, or that a justification defense exists. To defeat the defendant’s motion, a plaintiff must come forward with compelling evidence demonstrating a material question of fact as to whether the conduct was criminal and not justified.

Here, Huvane and Curran fired their weapons in the line of duty when faced with a criminal suspect poised to shoot a gun at them, which she, in fact, twice discharged. Huvane testified that he feared for his life and thought himself about to die. It is reasonable to conclude, based on these facts, that the use of deadly physical force was necessary for Huvane and Curran to defend themselves from imminent physical harm. It is also reasonable to conclude that neither Huvane nor Curran was “reckless” or “criminally negligent” as those terms are used in the Penal Law {see Penal Law § 15.05 [3], [4], requiring a “gross deviation” from reasonable standards).

In opposition to the City’s motion, plaintiff offered the affidavit of a former chief of police of Tallahassee, Florida. Plaintiffs expert opined that the use of deadly force was unreasonable under the circumstances because the officers should have been able to subdue Perez using defensive disarming techniques, given the height and weight differential between Perez and them. This speculative evidence is insufficient to rebut the presumption that the Penal Law was not violated; therefore, summary judgment was properly granted.

B. Williams

Labor Law § 27-a, known as the Public Employee Safety and Health Act (PESHA), was enacted “to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA” (Hartnett v New York City Tr. Auth., 86 NY2d 438, 442 [1995]). In implementing standards for PESHA, New York has adopted OSHA’s workplace safety standards {see 12 NYCRR 800.3).

Plaintiffs do not allege a violation of a specific workplace safety standard. They allege only a violation of the “general duty” clause, which provides that

“[e]very employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees .... In applying this paragraph, fundamental distinctions between private and public employment shall be recognized” (Labor Law § 27-a [3] [a] [1]).

We hold that this provision does not cover the special risks faced by police officers because of the nature of police work. The judgments that must be made by police supervisors in minimizing the danger that police officers inevitably face, while at the same time protecting the public, are uniquely sensitive, difficult and important. Police supervisors must decide, among other things, how police officers should use and store their weapons and ammunition; how much security should be provided when prisoners are transported; and where and under what conditions prisoners should be detained. We think it highly unlikely that the Legislature intended the general language of section 27-a to authorize Department of Labor inspectors enforcing PESHA to second-guess the decisions of police supervisors on matters like these.

Balsamo v City of New York (287 AD2d 22 [2d Dept 2001]) is not to the contrary. There, a police officer was injured in his patrol car in an automobile accident when his left knee allegedly came into contact with a sharp protruding edge of an unpadded computer console mounted off the automobile’s floor. Arguably, under the facts in Balsamo, section 27-a applies because PESHA is designed to prevent the type of occupational injury that occurred when the officer was given an improperly equipped vehicle. The injury in Balsamo did not arise from risks unique to police work. By contrast, the “occupational” injury the officers sustained here was death at the hands of a prisoner. Important as it is to prevent such tragedies, we rely on the judgment of those supervising the Police Department to do so—not on regulation and oversight by the Commissioner of Labor.

Plaintiffs’ reliance on sections 27-127 and 27-128 of the Administrative Code is equally unavailing. Those provisions require that “[a]ll buildings and all parts thereof shall be maintained in a safe condition” (§ 27-127) and that “[t]he owner shall be responsible at all times for the safe maintenance of the building and its facilities” (§ 27-128). At best, plaintiffs claim that the lock on the locker was broken or open, and the detention cell was not properly configured. The first of these allegations implicates a single item of equipment; the second, the City’s policies and procedures. Neither allegation claims that the building and “facilities” were not maintained in a safe manner.

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

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

In each case: Order affirmed, with costs.

      . Perez was charged with and tried for various crimes stemming from this incident. At her criminal trial, she denied that she had intentionally fired her gun, which she kept “to intimidate somebody,” but conceded that “it could have gone off.” Perez was acquitted of all crimes related to the death of McCormick, except for criminal possession of a weapon.

      . Harrison was apprehended and convicted of four counts of second-degree murder (People v Harrison, 207 AD2d 359 [2d Dept 1994], Iv denied 84 NY2d 936 [1994]).

      . The City originally argued that Labor Law § 27-a (3) (a) (1), the “general duty” clause, was not a proper predicate under section 205-e, but waived this argument on appeal. Accordingly, we decide this appeal by assuming, without deciding, that this particular provision of the Labor Law is a proper predicate.

      . Section 35.30, entitled “Justification; use of physical force in making an arrest or in preventing an escape,” provides that
      “1. A police officer . . . , in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense, may use physical force when and to the extent he reasonably believes such to be necessary to effect the arrest, or prevent the escape from custody, or to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force; except that he may use deadly physical force for such purposes only when he reasonably believes that: . . .

      “(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer ... or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force” (emphasis added).


author: ClPARICK, J.

text:
    [811 NE2d 531, 779 NYS2d 164]
    The People of the State of New York, Respondent, v Michael Wheeler, Appellant.
    Argued March 31, 2004;
    decided May 13, 2004

      POINTS OF COUNSEL

      Patterson, Belknap, Webb & Tyler LLP, New York City GJessica A. Golden of counsel), and Appellate Advocates (Lynn W.L. Fahey, Barry Stendig and Erica Horwitz of counsel), for appellant.
    The police officer did not conduct a protective sweep when he ordered appellant at gunpoint to move and show his hands. (People v Morales, 65 NY2d 997; People v McRay, 51 NY2d 594; People v Harrison, 57 NY2d 470; People v Oden, 36 NY2d 382; People v Turriago, 90 NY2d 77; People v LaFontaine, 92 NY2d 470, 93 NY2d 849; People v Romero, 91 NY2d 750; Maryland v Buie, 494 US 325; People v Febus, 157 AD2d 380; People v Bost, 264 AD2d 425.)

      Charles J. Hynes, District Attorney, Brooklyn (Jane S. Meyers and Leonard Joblove of counsel), for respondent.
    Defendant’s gun was properly admitted into evidence at his trial, because the police actions that led to its recovery were reasonably related in both their scope and intensity to the perilous circumstances that the officers confronted while they were lawfully in the apartment. (Maryland v Buie, 494 US 325; People v Febus, 157 AD2d 380; People v Plower, 176 AD2d 214; People v LaFontaine, 92 NY2d 470; People v Romero, 91 NY2d 750; People v Goodfriend, 64 NY2d 695; People v Pines, 99 NY2d 525; People v McIntosh, 96 NY2d 521; People v Harrison, 57 NY2d 470; Terry v Ohio, 392 US 1.)
   OPINION OF THE COURT

ClPARICK, J.

On November 17, 1993, a team of three officers from the New York City Department of Probation Warrant Squad set out to execute two felony arrest warrants for grand larceny and a drug-related offense against a probation violator. Pursuant to the warrants, the officers went to an apartment in Brooklyn where the probationer was thought to be staying. Officer Groves knocked on the door and announced his purpose. An unidentified woman responded, and the officer informed her about the warrants, showing her a picture of the probationer. She allowed the officers into the apartment, and pointed toward the living room occupied by three men. Two of the men were sleeping on the living room floor and the third, the defendant, was asleep on the couch.

Identifying the probationer as one of the men on the floor, Officer Groves nudged him awake. Both the second man on the floor and defendant also awakened. They began questioning the officers as to their purpose in the apartment. Officer Groves cautioned them not to interfere with the arrest. He asked the probationer to “lean up” so that the officers could see his hands. When the probationer complied, the officer observed a loaded .380 caliber automatic handgun at his side. He also saw a knife. Officer Groves secured both weapons and, fearing for their safety, all three officers drew their guns.

Officer Groves then approached the second man lying on the floor. This man was completely covered with a blanket and, while peeking from under it, persisted in questioning the officers. Officer Groves instructed him to show his hands and face. As the man removed his blanket in compliance with the order, the officer observed near the man’s head a second loaded .380 caliber automatic handgun and a large quantity of cash. He too was arrested and the weapon secured.

Defendant—who had been “mouthing off’ to the officers as they executed the warrants and disarmed his companions—was now sitting on his hands, fidgeting and mumbling. Officer Groves believed that defendant was hiding something, and asked defendant to “shift his position” and show his hands. Defendant was uncooperative, failing to comply until after further requests. When defendant eventually adjusted his position and placed his hands in plain view, the officer saw the butt of a 9 millimeter Luger under defendant’s thigh. Defendant denied owning the handgun, which was loaded with 14 rounds of ammunition. He was arrested, and charged with criminal possession of a weapon in the second degree (former Penal Law § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]).

Claiming a Fourth Amendment violation, defendant moved to suppress both the handgun and his statement denying ownership of it as the fruit of an unconstitutional seizure of his person. Following a suppression hearing, Supreme Court denied the motion in its entirety. The court stated that “the actions taken here were reasonable and related to the scope of danger imposed to the officers ...” and that the facts presented were “like” or “similar” to those presented in protective sweep cases. Thereafter, defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), and sentence was imposed.

The Appellate Division affirmed defendant’s conviction and upheld the denial of his motion to suppress, holding that the “limited security sweep conducted by the police” was reasonable and lawful. (302 AD2d 411, 411 [2003].) A Judge of this Court granted defendant leave to appeal. We now affirm the order of the Appellate Division under a different rationale.

Since defendant’s challenge to the hearing court’s determination involves a mixed question of law and fact, our review is limited to whether there is record support for the determinations of the courts below. The Appellate Division affirmed the denial of the motion to suppress without disturbing the court’s finding of reasonableness, and unless there is no view of the evidence that would support that determination, we are bound by the suppression court’s finding (People v Damiano, 87 NY2d 477, 486 [1996]).

Supreme Court denied defendant’s motion to suppress the handgun in a broad holding encompassing two legal standards: the protective sweep doctrine (see Maryland v Buie, 494 US 325 [1990]) and the reasonableness analysis under the Fourth Amendment (see People v William II, 98 NY2d 93, 98 [2002]). Neither of the parties relied on the protective sweep doctrine to support their arguments at the suppression hearing. Instead, the People argued that the officer’s conduct—asking defendant to adjust his position and show his hands—was reasonable given the totality of the circumstances. Relying on People v James (81 AD2d 795 [1st Dept 1981]) and People v Auletta (88 AD2d 867 [1st Dept 1982])—two cases employing a reasonableness analysis—defense counsel essentially argued that the officers were not justified in suspecting that defendant was armed and dangerous.

We have previously noted that the facts in suppression cases are not always neatly categorized and therefore have favored general guidelines for the resolution of individual cases (see People v Prochilo, 41 NY2d 759 [1977]). As the circumstances presented here did not arise during the course of a protective sweep for persons who, in hiding, posed a danger to the officers at the scene of the arrest, Buie and its progeny do not apply (see Buie, 494 US at 334; see also United States v Hernandez, 941 F2d 133, 135 [1991]). The proper test to be employed is the reasonableness of the governmental invasion of defendant’s privacy under the Fourth Amendment. Moreover, “the determination of the suppression court with its peculiar advantages of having seen and heard” the testimony is entitled to great deference (Prochilo, 41 NY2d at 761).

In other contexts, we have held that whether police interference is reasonable requires a weighing of the government’s interest against an individual’s right to privacy and personal security (see generally People v De Bour, 40 NY2d 210, 215 [1976], citing People v Cantor, 36 NY2d 106, 111 [1975]). The court “must undertake a dual inquiry: ‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place’ ” (William II, 98 NY2d at 98 [citations omitted]). The propriety of an officer’s interference with the privacy and security of an individual must be balanced against the relevant circumstances.

Applying these principles to the instant case, we conclude that the officers legitimately focused their attention on defendant during the execution of the arrest warrants in the apartment. Certainly, Officer Groves’ request that defendant shift his position and show his hands was justified at its inception. The officers had discovered two loaded .380 caliber automatic handguns near defendant’s companions before turning their full attention to defendant who, by that time, was sitting on his hands, fidgeting and mumbling. Under the circumstances the officers had reason to believe that defendant could also be armed and dangerous.

In light of the attendant circumstances, the intrusion here was minimal. Officer Groves merely requested that defendant shift his position and show his hands. Despite defendant’s initial failure to comply, the officer never touched defendant until he observed the 9 millimeter handgun under defendant’s thigh. On this record, the evidence supports the undisturbed finding that the limited police action was reasonable. Thus, defendant’s motion to suppress was properly denied.

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

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

Order affirmed.

       Defendant does not challenge the trial court’s denial of his motion to suppress his statement disclaiming ownership of the gun.