author: Rivera, J. Chief Judge Lippman

text:
    [16 NE3d 1178, 992 NYS2d 700]
    The People of the State of New York, Appellant-Respondent, v Hazel E. Gordon, Respondent-Appellant.
    Argued April 30, 2014;
    decided June 12, 2014

      POINTS OF COUNSEL

      P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for appellant-respondent.
    The People proved defendant’s guilt beyond a reasonable doubt. (People v Danielson, 9 NY3d 342; People v Grant, 17 NY3d 613; People v Hedgeman, 70 NY2d 533; People v Smith, 79 NY2d 309; People v Jones, 300 AD2d 30; People v White, 304 AD2d 384; People v Jones, 282 AD2d 382; People v Mackey, 49 NY2d 274; People v Steinberg, 79 NY2d 673; People v Rodriguez, 17 NY3d 486.)

      Aaron A. Louridas, Delmar, for respondent-appellant.
    Hazel Gordon’s convictions must be reversed and the indictment dismissed as the guilty verdicts were not supported by sufficient evidence. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Santi, 3 NY3d 234; People v Williams, 84 NY2d 925; People v Danielson, 9 NY3d 342; People v Smith, 79 NY2d 309; People v Bynum, 68 AD3d 1348, 14 NY3d 798; People v Jones, 4 AD3d 622, 2 NY3d 801; People v Brandley, 254 AD2d 185, 92 NY2d 1028; People v Kellam, 189 AD2d 1008.)
   OPINION OF THE COURT

Rivera, J.

In this appeal, we conclude that the People’s failure to recover stolen property from defendant does not forestall their ability to establish that her conscious objective in threatening or using physical force was to prevent or overcome resistance to the taking or retention of that stolen property. We therefore modify the Appellate Division order to reinstate defendant’s convictions of robbery in the first and second degrees; and to remit the case to the Appellate Division for consideration of the facts; and, as so modified, affirm.

I.

Defendant Hazel Gordon was charged with, among other counts, robbery in the first and second degrees (Penal Law §§ 160.15 [3]; 160.10 [1], [2] [a]), and assault in the second degree (Penal Law § 120.05 [2]), stemming from events during a visit by defendant to a department store in a mall outside Albany. Defendant went to the store with her teenage son, her friend and subsequent codefendant Gloria Wheatley, and a toddler. Based on her conduct while in the store, security personnel suspected that defendant stole merchandise, and thereafter followed and stopped the group as they left. Police eventually arrested defendant in the mall parking lot as she attempted to escape, and she and Wheatley were tried together. No merchandise was recovered from defendant or her companions.

At trial, the People presented testimony from Rayon James, a loss prevention officer, who tracked defendant with surveillance cameras, and Michael Lisky, a security guard, who followed defendant throughout the store. James testified that he grew suspicious as he observed defendant and Wheatley browse in the jewelry department. Specifically, he observed defendant select two sets of earrings from a display rack, place one pair among a pile of clothes she held in her arms, and the second on top of that pile. According to James, the manner in which defendant handled the earrings was “very typical of. . . somebody who is shoplifting.” He directed Lisky to follow defendant and Wheatley.

James continued to track defendant and Wheatley with security cameras as they walked from the jewelry to the infant/ maternity department, located close to the back of the store. He testified that as defendant walked, she “began removing the jewelry from the backing . . . [and] dropping [the backings] on the floor.” James also observed Wheatley remove backings from a third pair of earrings. After the women moved away, Lisky walked to the infant/maternity department and recovered three pairs of backings from the store floor. He then continued to follow defendant and Wheatley.

Defendant made no purchases during the remainder of time she spent in the store. She did, however, make four stops to the layaway counter. Each time, defendant placed at least one item on layaway and left the counter without any merchandise visibly in her possession.

Defendant eventually met her son, and they exited the store with Wheatley and the toddler. James observed their departure on the store cameras and instructed Lisky to follow the group into the mall corridor. James then exited the security booth to assist Lisky.

Before James arrived, Lisky approached defendant and her companions just outside the store. After he identified himself as a store security guard and asked her to return to the store because she had “merchandise that’s not paid for,” defendant “began yelling and screaming,” refused to return to the store, and denied stealing anything. When Lisky stepped in front of defendant, she began “pounding” on his chest with “a closed clenched fist.” Lisky then placed his hands on defendant in an attempt to stop her from leaving.

James arrived soon thereafter, entered the fracas, and pushed defendant off of Lisky. He told defendant that they would call the police if she did not return to the store. According to Lisky, defendant then reached “inside her bag and pulled two large pens out and then held them in her hand . . . [and] started swiping at [the guards] trying to stab [them].” James testified that as defendant waved the pens she yelled, “I will kill you, blood clot.” The security guards backed off, called the police, and followed from a safe distance as the group walked towards the mall exit.

When they approached the exit, Lisky tried to grab the pens from defendant in an attempt to delay her departure. At that point, according to James, defendant’s son came up behind James and pulled out a knife. The son ran out of the mall when James turned to face him, and James chased him through the parking lot and down a bike path between the mall and a neighboring cemetery. According to James, as he ran, the son “put[ ] his hands in his pocket . . . [and] toss[ed] things . . . into the cemetery area.” James testified that he thought defendant passed stolen merchandise to her son and that the son tossed this stolen property into the cemetery. After the son’s arrest, neither merchandise nor a knife was recovered from him, nor was anything found during a subsequent search of the cemetery.

Lisky followed defendant and Wheatley into the mall parking lot where the women entered a car. He approached the car, opened its door, and unsuccessfully attempted to remove defendant’s keys from the ignition. Lisky backed off when defendant tried to swipe him again with the pens, and defendant then “took off’ through the parking lot. Undeterred, Lisky took a photo of her license plate, called the police, and followed defendant on foot.

Another store employee, Lance Pappas, testified that he was on a break when he observed the events in the parking lot and went to the car just as Lisky attempted to take the keys from defendant. When defendant pulled away, Pappas ran through the parking lot and stood in front of her car in an attempt to stop her departure. Several witnesses testified that they saw defendant intentionally swerve the car in Pappas’s direction and hit him. Pappas fell, injuring his rib cage.

Defendant continued driving until she reached the place where the police were holding her son. She then exited the car and ran towards the officers. After she ignored orders to stop, an officer subdued defendant with a taser, and arrested her and Wheatley.

At the trial, the People submitted extensive video footage which corroborated the live testimony. The footage depicted defendant and Wheatley in the jewelry department, defendant’s suspicious handling of the earrings as described during James’s testimony, as well as defendant meandering through the store and making several stops at the layaway department. Additional footage depicted the altercation between defendant and the security personnel directly outside the store’s exit.

The jury found defendant guilty of one count of robbery in the first degree, two counts of robbery in the second degree, and one count of assault in the second degree. The court sentenced defendant to an aggregate term of five years’ imprisonment followed by five years’ postrelease supervision.

On appeal, defendant challenged her convictions as based upon legally insufficient evidence. On the robbery counts, she alleged that because the earrings were not recovered from her or her companions, the jury could not reasonably infer that she threatened or used force to retain possession of that property. With respect to the assault count, she claimed the People failed to establish that it was her conscious objective to cause physical injury to Pappas.

The Appellate Division modified the Supreme Court judgment by reducing defendant’s robbery convictions to petit larceny; remitted the matter to Supreme Court for resentencing; and, as so modified, affirmed (see People v Gordon, 101 AD3d 1158 [3d Dept 2012]). The court concluded there was insufficient evidence to support the robbery convictions as “no stolen property was found in the possession of defendant or either of her accomplices” and, thus, the jury could not reasonably infer that she threatened or used force to prevent or overcome resistance to the taking or retention of such property (101 AD3d at 1159). However, the court concluded that there was sufficient evidence to support the lesser included offense of petit larceny because the “evidence established] that defendant, while still in the store, removed and discarded the cardboard backing from several pairs of earrings” (id. at 1160). The court rejected defendant’s legal sufficiency challenge to her assault conviction (see id.), and concluded her remaining contentions were either unpreserved or lacked merit (see id. at 1160-1161).

A Judge of this Court granted the People and defendant leave to appeal (see 21 NY3d 912 [2013]). We now modify the Appellate Division order by reinstating defendant’s convictions for robbery in the first and second degrees.

II.

It is well established that “[a] verdict is legally sufficient if there is any valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt” (People v Delamota, 18 NY3d 107, 113 [2011]; see Jackson v Virginia, 443 US 307, 319 [1979]; People v Danielson, 9 NY3d 342, 349 [2007]). In considering the evidence we view it “in the light most favorable to the prosecution,” and recognize that “the People are entitled to all reasonable evidentiary inferences” (Delamota, 18 NY3d at 113; see Danielson, 9 NY3d at 349; People v Bleakley, 69 NY2d 490, 495 [1987]). Further, “[w]e must assume that the jury credited the People’s witnesses and gave the prosecution’s evidence the full weight it might reasonably be accorded” (People v Hampton, 21 NY3d 277, 288 [2013]). Hence, in a sufficiency review, we “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof’ (Danielson, 9 NY3d at 349; see People v Cintron, 95 NY2d 329, 332 [2000]). Applying these standards, we conclude that there is sufficient evidence to support the jury’s inference that defendant remained in possession of stolen merchandise at the time she threatened or used force and, therefore, we reinstate her convictions for robbery in the first and second degrees.

A person is guilty of robbery in the first degree when such person “forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, [such person] or another participant in the crime . . . [u]ses or threatens the immediate use of a dangerous instrument” (Penal Law § 160.15 [3]). Similarly, a person is guilty of robbery in the second degree when such person “forcibly steals property and when” the individual “is aided by another person actually present,” or “[i]n the course of the commission of the crime or of immediate flight therefrom, [such person] or another participant in the crime,” also “[clauses physical injury to any person who is not a participant in the crime” (Penal Law § 160.10 [1], [2] [a]).

Thus, robbery in the first and second degrees both require the prosecution to prove that a defendant “forcibly [stole] property.” A person commits “forcible stealing” when, during the commission of a larceny, such individual “uses or threatens the immediate use of physical force upon another person for the purpose of . . . [preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking” (Penal Law § 160.00 [1]).

“The applicable culpability standard — intent—require[s] evidence that, in using or threatening physical force, [the] defendant’s ‘conscious objective’ was either to compel [the] victim to deliver up property or to prevent or overcome resistance to the taking” or retention thereof (People v Smith, 79 NY2d 309, 315 [1992], quoting Penal Law §§ 15.05 [1]; 160.00 [1], [2]). Intent may be established by the defendant’s conduct and the circumstances (see People v Mackey, 49 NY2d 274, 279 [1980], citing McCourt v People, 64 NY 583, 586 [1876]; People v Oliver, 4 AD2d 28, 31 [3d Dept 1957], affd 3 NY2d 684 [1958]; see also People v Barnes, 50 NY2d 375, 381 [1980]; People v Romero, 101 AD3d 560, 560 [1st Dept 2012], lv denied 20 NY3d 1103 [2013] [the “(d)efendant’s criminal intent could be readily inferred from the surrounding circumstances”]). “The element of intent is rarely proved by an explicit expression of culpability by the perpetrator; and competing inferences to be drawn regarding the defendant’s intent, if not unreasonable, are the exclusive domain of the finders of fact, not to be disturbed by us” (People v Bueno, 18 NY3d 160, 169 [2011] [internal quotation marks, brackets and citations omitted]).

Force used solely to effectuate a defendant’s escape will not support a robbery conviction (see e.g. People v Bynum, 68 AD3d 1348, 1349 [3d Dept 2009], lv denied 14 NY3d 798 [2010]). However, when a defendant is later found in possession of stolen property, the jury may infer that his or her use of force was to retain control of that property (see Bynum, 68 AD3d at 1349; People v Jones, 4 AD3d 622, 623-624 [3d Dept 2004], lv denied 2 NY3d 801 [2004]; People v Brandley, 254 AD2d 185 [1st Dept 1998], lv denied 92 NY2d 1028 [1998]).

Some Appellate Division departments have adopted what amounts to an inverse proposition, that failure to recover stolen property from a defendant precludes a jury’s finding of guilt for first or second degree robbery, notwithstanding the possible inferences which might reasonably follow from the trial evidence. Those courts have held that, absent subsequent recovery of stolen property from the defendant, “it is impossible to conclude beyond a reasonable doubt that [the] defendant’s conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property” (People v Kellam, 189 AD2d 1008, 1010 [3d Dept 1993]; see People v Miller, 217 AD2d 970, 971 [4th Dept 1995]; People v Nixon, 156 AD2d 144, 146 [1st Dept 1989], appeal dismissed 76 NY2d 870 [1990]). We reject this premise because it deprives the jury of its traditional role as factfinder and would have the unintended consequence of removing certain criminal conduct from the statutory ambit.

Whether a defendant had the intent to forcibly steal property is a question for the trier of fact, a question which may be answered based on direct evidence of such intent, or upon reasonable inferences drawn from the trial evidence (see People v Bueno, 18 NY3d 160, 169 [2011]; People v Barnes, 50 NY2d 375, 381 [1980]). There is nothing inherently unique or qualitatively different in first and second degree robbery cases to support removing from the jury’s recognized province the task of determining defendant’s intent.

Certainly, recovery from the defendant of the stolen property provides a strong basis for a jury’s finding of criminal intent (see e.g. Bynum, 68 AD3d at 1349; Jones, 4 AD3d at 623-624; Brandley, 254 AD2d at 185). Yet, just as possession of the property is but one fact which supports the jury’s reasonable inference of the defendant’s “conscious objective,” failure to recover the property from the defendant is also a fact for the jury to consider in determining whether the People have established the requisite intent. Where sufficient facts and reasonable inferences support a finding of intent to forcibly steal, even where the stolen property is not recovered from the defendant, a jury should be permitted to make such a finding.

A requirement that the People establish possession would permit a defendant to escape prosecution where the defendant disposed of the stolen property prior to arrest. In certain cases, moreover, recovery may be next to impossible given the characteristics of the property and the circumstances surrounding the robbery. The present case is but one example of the difficulties of prosecution where the property is small, easily disposed of, and difficult to find. This is particularly true where, as here, the crime scene encompasses a large and public area. We see no basis for interpreting the law in a way that rewards criminal conduct, or places an insurmountable burden on the People.

Thus, the question on defendant’s appeal is not whether the earrings were found on her person, but whether there was sufficient evidence to support the jury’s conclusion that she used force “for the purpose of . . . [preventing or overcoming resistance to the taking of [the earrings] or to the retention thereof immediately after the taking” (Penal Law § 160.00 [1]). Here, James testified that he observed defendant acting in a suspicious manner as she handled several sets of earrings in the jewelry department. Specifically, she placed pairs of earrings among and on top of a pile of clothes in her arms, thus secreting them on her person. He thereafter observed her in another section of the store removing the backings from the earrings. James’s observations were corroborated by Lisky’s testimony that he recovered the backings from the floor of the infant/ maternity department. Moreover, the jury could reasonably have accepted James’s and Lisky’s testimony based on the jurors’ independent observations of the surveillance video (see People v Morris, 21 NY3d 588, 597-598 [2013]; People v Negron, 91 NY2d 788, 792 [1998] [noting “our long-standing recognition that a jury is entitled to assess the credibility of witnesses and determine, for itself, what portion of their testimony to accept and the weight such testimony should be given”]).

Defendant’s conduct at the store exit and in the parking lot further support the jury’s determination of her guilt. When Lisky and James approached defendant, she acted in a violent and threatening manner that was disproportionately aggressive under the circumstances. This extreme reaction provided an additional basis upon which the jury could infer that defendant’s actions were intended to ensure her retention of the stolen property.

Contrary to defendant’s argument, the fact that the earrings were not recovered from her or her companions does not make the inference unreasonable or render the evidence legally insufficient. As we have made clear, the jury could have taken into consideration the failure to recover the earrings and still have found the evidence sufficiently persuasive to find intent. The jury’s conclusion is reasonable given defendant’s conduct inside and outside the store.

Based on this record, we conclude there was ample evidence to support a reasonable inference — from defendant’s suspicious conduct in the store, removal of the backings from two pairs of earrings, and extreme reaction to the security guards after leaving the store — that defendant stole merchandise and threatened or used force to prevent or overcome resistance to her possession of that property. Thus, the jury’s verdict with regard to the robbery convictions is legally sufficient.

With respect to defendant’s cross appeal of her conviction for second degree assault, we conclude that her challenge on sufficiency grounds is without merit. The testimony from the victim and several eyewitnesses that defendant swerved into Pappas, and his testimony as to the physical injuries he incurred were more than enough to sustain the jury’s guilty verdict.

Accordingly, the Appellate Division order should be modified by reinstating defendant’s convictions of robbery in the first and second degrees; and remitting the case to the Appellate Division for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]); and, as so modified, affirmed.

Chief Judge Lippman

(dissenting in part). A defendant not found in possession of stolen property may be convicted of robbery on a theory of forcible retention, but only upon proof, direct or circumstantial, to justify the inference that, at the time of her resort to force, she retained what she stole. Proof of actual possession contemporaneous with the use of force to perfect the taking is not, as the majority suggests (majority op at 651), dispensable to a robbery conviction.

The Appellate Division may have spoken with less than optimal precision when it said in substance that because defendant was not apprehended in possession of the stolen property she could not be convicted of robbery on a forcible retention theory. But the court was not wrong in concluding that the evidence, even when viewed in the light most favorable to the People, did not prove what it had to: that defendant did, in fact, retain the purloined earrings when she struck out at and threatened the store employees.

The People urge that the jury could reasonably have inferred from defendant’s taking of the earrings that she possessed them until and during her confrontation with the store employees. But, although there was evidence that she stole the earrings, there was none that she still had them at the time of the altercation. That latter event was removed by at least half an hour from the taking, and there is no evidence as to the disposition of the earrings in the meantime. Defendant could easily have transferred them to someone else (her son or shopping partner and codefendant are obvious candidates) or might have left them, purposely or otherwise, at the layaway counter during one of her several video-recorded trips there. What is certain is that she did not possess the earrings shortly after the altercation, and there was no evidence to substantiate the explanatory hypothesis that she got rid of them following the altercation but before her arrest — a period during which she was apparently constantly pursued and observed by the store employees.

It is presumably to avoid elevating petit larceny to robbery on the basis of a purely speculative connection between the taking and a subsequent use of force that the robbery statute repeatedly requires the use of force to coincide with or follow immediately upon the taking. Where the immediacy requirement is scrupulously met, the necessary inference that the force was used to consolidate the taking is one that often may be naturally drawn from the close temporal relation between the taking and the thief’s resort to force. On the other hand, to permit a robbery conviction where there is a substantial interval between the theft and the use of force, and where there is no evidence, except the taking, to sustain the inference of continued possession, countenances the fracture of what is supposed to be a unified course of felonious conduct into a disjunct sequence composed of a taking and a subsequent use of force, and in so doing effectively relieves the People of proving, as we have held they must, that force was used “for the purpose of’ — i.e., with the conscious objective of — completing the theft (see People v Smith, 79 NY2d 309, 311-312 [1992]).

The majority suggests that unless the People are relieved of the statutory requirement of proving that force was used for the purpose of retaining stolen property, criminal conduct will be rewarded in contravention of public policy (majority op at 651). All that is properly involved, however, is the measuring of the statutory criteria for robbery against the conduct proved. Moreover, there is no social or penal justification for treating as a class B or C felony what is, without the benefit of considerable imaginative embellishment, a petit larceny followed at some temporal remove by an assault.

In reducing the robbery convictions, the Appellate Division, I believe, correctly conformed the judgment to the proof. I would affirm the appealed order in its entirety.

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

Order modified by reinstating defendant’s conviction of robbery in the first and second degrees and remitting the case to the Appellate Division, Third Department, for consideration of the-facts (CPL 470.25 [2] [d]; 470.40 [2] [b]) and, as so modified, affirmed.

      . After defendant’s first stop at layaway, Lisky went to the counter where the layaway employee apparently told him that defendant had placed “towels or something” on reserve. No mention was made of the earrings or any jewelry.

      . The jury convicted Wheatley of petit larceny.

      . Pursuant to Penal Law § 155.05 (1), “[a] person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to [such person] or to a third person, [such person] wrongfully takes, obtains or withholds such property from an owner thereof.”

      . Our dissenting colleague concludes that the evidence is insufficient to satisfy the immediacy requirement of the robbery statute because too much time elapsed between the taking of the earrings and the altercation. Whether defendant used force immediately after the taking is a question for the jury (see People v Carrel, 99 NY2d 546, 547 [2002]; People v Dekle, 83 AD2d 522, 522 [1st Dept 1981], affd, on other grounds 56 NY2d 835 [1982] [lack of preservation]); and we disagree that, in this case as a matter of law, “a substantial interval” passed, thus foreclosing an inference of forcible stealing (see e.g. People v Johnstone, 131 AD2d 782, 782-783 [2d Dept 1987]; Dekle, 83 AD2d at 522 [“The jury was entitled to find that defendant’s taking of the property was a continuous act, including removal of the item from the showcase, the removal of its price tags in the adjacent department and its removal from the store, and that defendant’s threat to use the knife was a threat of ‘the immediate use of force’ so shortly after the taking as to constitute the use of physical force ‘immediately after the taking’ to overcome the victim’s resistance to the defendant’s retention of the property”]). The dissent’s argument that the inferences of defendant’s possession are speculative is belied by the record, which contained evidence that she surreptitiously took the earrings, removed their backings, and, when confronted as she exited with her companions, reacted violently by threatening security guards. Certainly, as the dissent concedes, the jury could have also inferred that defendant passed the earrings to one of her companions who then, after the altercation, disposed of them. Based on either inference, however, defendant’s robbery convictions are legally sufficient.

      . The decision says,
      “[w]here a defendant is found to be in possession of stolen property, a jury may infer that he or she threatened or used force to prevent or overcome resistance to its taking or retention; however, when such evidence is lacking, it is impossible to conclude beyond a reasonable doubt that defendant’s conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property” (People v Gordon, 101 AD3d 1158, 1159 [2012] [emphasis added; internal quotation marks and citations omitted]).

      . Robbery is defined as forcible stealing, which, as is here relevant, is in turn defined as the “use[ ] or threaten[ed] . . . immediate use of physical force upon another person for the purpose of.. . [preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking” (Penal Law § 160.00 [1] [emphasis added]).


source: Caselaw Access Project

author: Per Curiam. Pigott, J.

license: Public Domain

text:
    [17 NE3d 1127, 993 NYS2d 531]
    In the Matter of Cathryn M. Doyle, Surrogate of Albany County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued June 5, 2014;
    decided June 26, 2014

      POINTS OF COUNSEL

      Dreyer Boyajian LLP, Albany (William J. Dreyer and Craig M. Crist of counsel), for petitioner.
    I. Judge Cathryn M. Doyle’s good faith error of law does not constitute misconduct. (Matter of LaBelle, 79 NY2d 350; Matter of Watson, 100 NY2d 290; Matter of George [State Commn. on Jud. Conduct], 22 NY3d 323; Matter of Dixon v State Commn. on Jud. Conduct, 47 NY2d 523.) II. The State Commission on Judicial Conduct made findings of fact that were not based on the record. (Matter of Skinner, 91 NY2d 142; Matter of Kiley, 74 NY2d 364.) III. The extreme sanction of removal is excessive under the circumstances. (Matter of Cunningham, 57 NY2d 270; Matter of Watson, 100 NY2d 290; Matter of Kiley, 74 NY2d 364; Matter of Marshall, 8 NY3d 741; Matter of George [State Commn. on Jud. Conduct], 22 NY3d 323; Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349; Matter of LaBombard [State Commn. on Jud. Conduct], 11 NY3d 294; [Matter of Assini, 94 NY2d 26; Matter of Robert, 89 NY2d 745; Matter of Conti, 70 NY2d 416.)

      Robert H. Tembeckjian, Albany (Edward Lindner, Mary C. Farrington, Cathleen S. Cenci and S. Peter Pedrotty of counsel), for respondent.
    I. Petitioner committed judicial misconduct under any reasonable, “good faith” interpretation of the rules, the precedents of this Court, prior State Commission on Judicial Conduct determinations and pertinent advisory opinions. (Matter of Intemann, 73 NY2d 580; Matter of Conti, 70 NY2d 416; Matter of Robert, 89 NY2d 745; Long v State of New York, 7 NY3d 269; Matter of Feinberg, 5 NY3d 206; Matter of Roberts, 91 NY2d 93; Matter of Young [State Commn. on Jud. Conduct], 19 NY3d 621; Matter of LaBombard [State Commn. on Jud. Conduct], 11 NY3d 294; Matter of Fabrizio, 65 NY2d 275; Matter of Durchin, 217 AD2d 582.) II. Petitioner should be removed from office. (Matter of Young [State Commn. on Jud. Conduct], 19 NY3d 621; Matter of LaBombard [State Commn. on Jud. Conduct], 11 NY3d 294; Matter of Intemann, 73 NY2d 580;
      Matter of Conti, 70 NY2d 416; Matter of Robert, 89 NY2d 745; Matter of Fabrizio, 65 NY2d 275; Matter of Roberts, 91 NY2d 93; Matter of Hedges, 20 NY3d 677; Matter of Kuehnel v State Commn. on Jud. Conduct, 49 NY2d 465; Matter of Hamel [State Commn. on Jud. Conduct], 88 NY2d 317.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, the Albany County Surrogate, seeks review of a determination of the Commission on Judicial Conduct which sustained three charges of misconduct against her and directed that she be removed from office (see NY Const, art VI, § 22; Judiciary Law § 44). We agree with the findings of misconduct and uphold the sanction of removal.

In September 2012, petitioner was served with a formal written complaint alleging three charges of judicial misconduct based on her failure to disqualify herself from matters involving her close friend and personal attorney Thomas J. Spargo, her campaign manager Matthew J. Kelly and a second personal attorney William J. Cade. In each charge, petitioner was alleged to have violated sections 100.1; 100.2 (A) and (C) and 100.3 (E) (1) and (F) of the Rules Governing Judicial Conduct (22 NYCRR).

Thomas Spargo is a former Supreme Court Justice who was removed from office by the Commission in 2006 based on the active solicitation of contributions for his legal fund from attorneys who appeared before him. The fund, referred to as the “Spargo trust,” had been established to help pay for legal expenses Spargo incurred in his federal litigation challenging the constitutionality of certain provisions of the Code of Judicial Conduct and seeking to enjoin the Commission from proceeding against him (see Spargo v New York State Commn. on Jud. Conduct, 351 F3d 65 [2d Cir 2003]).

Petitioner is the godmother to Spargo’s son and Spargo had been a good friend of hers for approximately 40 years. Indeed, petitioner had expressed that Spargo was “as close as a friend can get.” He was also a frequent visitor to petitioner’s chambers. In addition, Spargo served as her personal attorney. He represented petitioner in a personal injury action commenced in March 2008 and a tax certiorari proceeding commenced in July 2008, both of which remained pending at the time of his disbarment in December 2009.

It is important to note that, in February 2007, petitioner had been censured for her misleading and evasive testimony given in connection with the Commission’s investigation of her role in the “Spargo trust.”

Between February 2008 and May 2009, petitioner presided over four matters in which Spargo was representing the moving parties. She took actions including signing decrees granting letters of administration and admitting a will to probate. In each matter (all uncontested proceedings), the judge signed the decree on the day the petition was submitted. At least two of the matters were commenced when Spargo provided the papers directly to the judge, instead of filing them with the clerk’s office. It is worth noting that petitioner signed the Chief Clerk’s name to some of the decrees in Spargo’s matters.

Petitioner also took judicial action in four estates in which Matthew J. Kelly was representing the moving parties. Kelly had managed petitioner’s 2010 campaign for reelection to Surrogate’s Court and also held a leadership role in her 2007 campaign for the Democratic nomination for the office of Supreme Court Justice. Kelly was heavily involved in the 2007 campaign, which lasted from mid-June to late September of that year. Significantly, petitioner’s campaign accountant had made notes after his initial meeting with her law clerk indicating his understanding that Kelly was the campaign manager. Among other things, Kelly had organized a campaign fundraiser, including having invitations printed and mailed out. In addition, Kelly signed the letters issuing pro rata refunds of the remaining campaign donations after petitioner failed to earn the party nomination. Subsequent letters notifying certain contributors that clerical errors had been made in the calculation of the refunds and requesting the return of over-reimbursements were likewise sent out under Kelly’s name.

While the 2007 campaign was ongoing, the judge granted Kelly’s petition to invade the corpus of a trust of which he was a trustee. In addition, in 2010, while Kelly was actively working on her reelection campaign and just two days after both individuals attended her campaign fundraiser, the judge signed a decree admitting a will to probate as Kelly had petitioned. She also issued various orders or decrees relating to two other estates involving Kelly within the two-year period after he had worked on her 2007 campaign. In one of those proceedings, there was a question as to whether Kelly’s client had exerted undue influence and Kelly had testified before petitioner as a witness at a SCPA 1404 hearing concerning the decedent’s mental condition. Although that hearing was held in May 2007, prior to the start of the 2007 campaign, the judge continued to preside over the ongoing proceedings after Kelly became involved with her campaign.

The third individual, William J. Cade, was petitioner’s personal attorney and had represented her before the Commission in the proceeding that resulted in her February 2007 censure. In February 2008, petitioner presided over an estate matter submitted by Cade and signed a decree granting limited letters of administration.

Petitioner does not dispute that she presided over the matters at issue, but asserts that she made a good faith error of law in concluding that she could hear these uncontested, nondiscretionary matters. She testified that she routinely recused herself when these individuals appeared before her in her capacity as an Acting Supreme Court Justice but, given the unique nature of Surrogate’s Court practice, where many proceedings are submitted on consent and the Surrogate’s actions are often dictated by statute, she believed that there could be no appearance of impropriety or favoritism.

Petitioner maintains that, prior to 2011, the ethics opinions were unclear as to a Surrogate’s disclosure or recusal obligations in nonadversarial matters. However, a judge’s obligation to disqualify herself based on the appearance of impropriety has long been in place and has not been dependent on the nature of the proceeding. For instance, in Matter of Intemann (73 NY2d 580, 582 [1989]), a Surrogate was removed for, among other things, sitting on matters brought by an attorney who was a “close friend, business associate and personal attorney.” Moreover, the clear thrust of the judicial ethics opinions since at least 1994 has been that a Surrogate should recuse herself from “routine, non-contested or administrative” matters involving attorneys with whom she has a relationship that could give rise to an appearance of impropriety or raise a question as to the judge’s impartiality (see Advisory Comm on Jud Ethics Op 94-12 [1994] [campaign manager], available at http://www.nycou.rts.gov/ip/judicialethics/opinions/94-12.htm; Advisory Comm on Jud Ethics Op 94-05 [1994] [colleagues at former law firm], available at http://www.nycourts.gov/ip/judicialethics/opinions/9405.htm). It is only by an overly restrictive interpretation of her ethical obligations that petitioner reached a different conclusion.

As to the first charge, petitioner plainly should have disqualified herself from any matters involving her close friend and personal attorney Thomas Spargo. That Spargo was a frequent visitor to her chambers and commenced certain of these proceedings directly with the judge, instead of through the clerk’s office, enhances the appearance of impropriety and favoritism. The charge was properly sustained.

Likewise, the second charge, pertaining to Matthew Kelly was appropriately sustained. Petitioner took the position before the Commission that Kelly was merely a volunteer in 2007 and that her bid for the Supreme Court nomination was not a campaign — she was merely “testing the waters.” Regardless of whether Kelly held the title of “campaign manager” for the 2007 effort, he clearly exercised a leadership role and was heavily involved in the campaign. Where, as here, an individual has such a prominent role in the campaign, recusal is required (see Advisory Comm on Jud Ethics Op 04-106 [2004], available at http://www.nycourts.gov/ip/judicialethics/opinions/04106.htm). Sitting on matters involving Kelly, especially while the campaigns were active, gave rise to the appearance of impropriety.

Regarding the third charge, petitioner presided over a matter brought by her personal attorney William Cade within the two-year period after he represented her before the Commission (see Matter of Conti, 70 NY2d 416, 419 [1987]; Advisory Comm on Jud Ethics Op 99-67 [1999]). This was improper and the charge was appropriately sustained.

The Rules Governing Judicial Conduct create no distinction between contested and uncontested/ministerial matters. The perception that these attorneys were in a position to be accorded preferential treatment is based on their relationships to the judge, not the type of proceedings. As the Commission pointed out, assuming that petitioner actually believed recusal was unnecessary under existing precedent and that there could be no appearance of impropriety or favoritism in her presiding over the matters involving these three individuals, her behavior reflects “exceedingly poor judgment and an inability to recognize impropriety.”

We further observe that, the matters at issue being uncontested, the possibility of remittal was not available (see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [F]). In any event, there is no indication that petitioner made any attempt whatsoever at disclosure here. It is also important to point out that the absence of an opposing party does nothing to lessen the appearance of impropriety (see Advisory Comm on Jud Ethics Op 94-05 [1994]). In such situations, the judge has an equal obligation to guard against the impression of favoritism.

Petitioner contends that the sanction of removal is excessive under the circumstances because her misconduct amounted to an error in judgment flowing from her misinterpretation of what was permissible under the ethics opinions. She points to certain mitigating factors, most significantly that there was no indication of personal gain and that the nine matters at issue represent only a tiny fraction of the thousands of Surrogate’s Court proceedings she handled during the relevant time period. Petitioner maintains that her conduct does not rise to the level of “truly egregious” behavior that would warrant the harshest punishment (see Matter of Going, 97 NY2d 121, 127 [2001]). We have explained, “however, that the truly egregious standard is measured with due regard to the fact that Judges must be held to a higher standard of conduct than the public at large” (Going, 97 NY2d at 127 [internal quotation marks and citations omitted]).

Petitioner discounts the significance of her prior censure. The mere existence of a prior censure would be noteworthy regardless of whether it was related to the instant misconduct (see e.g. Matter of Kuehnel v State Commn. on Jud. Conduct, 49 NY2d 465, 469-470 [1980]). While the misconduct at issue is not of the same type that had resulted in her prior censure, it is not, as petitioner maintains, “wholly unrelated.” Rather, the 2007 censure, issued only a short time before the events under consideration, stemmed from her relationship with one of the same individuals. Without question, a heightened awareness of and sensitivity to any and all ethical obligations would be expected of any judge after receiving a public censure. Petitioner’s failure to exercise that vigilance within just a year of her prior discipline is persuasive evidence that she lacks the judgment necessary to her position. Under the circumstances, the 2007 censure constitutes a “significant aggravating factor” (see Matter of George [State Commn. on Jud. Conduct], 22 NY3d 323, 329 [2013]) and the sanction of removal is appropriate.

Accordingly, the determined sanction should be accepted, without costs, and Cathryn M. Doyle removed from the office of Surrogate of Albany County.

Pigott, J.

(dissenting). Judge Doyle’s tenure is remarkable. She served for 20 years as Chief Clerk of the Albany County Surrogate’s Court. She was an Adjunct Professor of Law at Albany Law School teaching courses on trusts and estates and Surrogate’s Court procedure. She has been a frequent lecturer for the New York State Bar Association, Surrogate Judges Association and the Office of Court Administration. She also served as an Acting Supreme Court Justice by designation of the Office of Court Administration. The voters of Albany County elected her Surrogate twice.

Judge Doyle was first elected Surrogate in 2000 and reelected in 2010. She presided over a court that has processed over 3,500 cases annually. The charges here are few and minor and involve only an “appearance of impropriety” and concededly resulting in no impropriety in-fact. Nevertheless, this Court now upholds the sanction of her removal from office.

This Court has the “authority not only to ‘review the commission’s findings of fact and conclusions of law,’ but also to accept or reject the sanction determined by the commission, impose a different sanction, or impose no sanction at all” (Matter of Cunningham, 57 NY2d 270, 274 [1982]). We therefore are not restricted to reviewing the proceedings below for errors of law alone but, to the contrary, we are required to review the factual findings of the State Commission on Judicial Conduct. “Thus, in essence, there is a determination de novo” (id.). We have also previously stated that “[r]emoval is excessive where the misconduct amounts solely to poor judgment, even extremely poor judgment” (Matter of Skinner, 91 NY2d 142, 144 [1997]).

I agree with the dissenting Commission members that censure is the more appropriate sanction. As the dissenters noted, the referee who heard and witnessed Judge Doyle testify found her to be a “credible and candid witness” who “told the truth.” And while her disciplinary history should be considered, it does not elevate the sanction to removal on these facts, since the earlier discipline was not related to the alleged misconduct here. Finally, as the dissenting Commission members properly noted, “[I]f the findings of misconduct do not firmly place the judge over the line into the removal realm of ‘truly egregious circumstances,’ I think we must censure.”

Chief Judge Lippman and Judges Read, Smith, Rivera and Abdus-Salaam concur in per curiam opinion; Judge Pigott dissents and votes to censure in an opinion; Judge Graffeo taking no part.

Determined sanction accepted, without costs, and Cathryn M. Doyle removed from the Office of Surrogate of Albany County.

       Spargo was disbarred, pursuant to his disciplinary resignation, following his federal felony conviction for attempted extortion and soliciting a bribe (see Matter of Spargo, 68 AD3d 1242 [3d Dept 2009]).

       Designation as Acting Supreme Court Justice is made by the Chief Administrator of the Courts in his or her discretion upon consultation with and agreement by the Presiding Justice of the appropriate Appellate Division (22 NYCRR 121.1). In making such selection, the Chief Administrator receives recommendations from an evaluatory panel consisting of the appropriate Deputy Chief Administrator of the Courts and the Administrative Judge of the Court where the Judge serves (22 NYCRR 121.2 [a]). In determining the capability of judges eligible for assignment, the evaluatory panel considers four criteria: productivity, scholarship, temperament and work ethic (22 NYCRR 121.2 [b] [1]-[4]).


author: Read, J.

text:
    [16 NE3d 561, 992 NYS2d 503]
    Norex Petroleum Limited, Appellant, v Leonard Blavatnik et al., Respondents.
    Argued May 6, 2014;
    decided June 26, 2014

      POINTS OF COUNSEL

      Simpson Thacher & Bartlett LLP, New York City (Barry R. Ostrager, Mary Kay Vyskocil, Jonathan M. Weiss and Hiral D. Mehta of counsel), and Simpson Thacher & Bartlett LLP, Los Angeles, California, for appellant.
    Norex Petroleum Limited’s claims are timely under CPLR 205 (a). (Burnett v New York Central R. Co., 380 US 424; National Sur. Co. v Ruffin, 242 NY 413; Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20; Global Fin. Corp. v Triarc Corp., 93 NY2d 525; Portfolio Recovery Assoc., LLC v King, 14 NY3d 410; In re Countrywide Fin. Corp. Mortgage-Backed Sec. Litig., 834 F Supp 2d 949; Semtek Int’l Inc. v Lockheed Martin Corp., 531 US 497; Lehman Bros. v Hughes Hubbard & Reed, 245 AD2d 203; Baker v Commercial Travelers Mut. Acc. Assn. of Am., 3 AD2d 265; Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160.)

      White & Case LLP, New York City (Owen C. Pell, Scott E. Hershman, Brian E. Fritz and Max Shterngel of counsel), for OAO Tyumen Oil Company and another, Hoguet Newman Regal & Kenney, LLP, for Simon Kukes, Sullivan & Cromwell LLP, New York City, Sullivan & Cromwell LLP, Washington, D.C., for BP PLC, Patterson Belknap Webb & Tyler LLP, New York City, for Renova, Inc., Akin Gump Strauss Hauer & Feld LLP, for Alfa Group Consortium, Curtis, Mallet-Prevost, Colt & Mosle

      LLP, for Leonard Blavatnik, Reed Smith LLP, for Victor Vekselberg, and Quinn Emanuel Urquhart & Sullivan, LLP, for Access Industries, Inc., respondents.
    I. In ruling that Norex Petroleum Limited’s claims are time-barred, the courts below correctly applied this Court’s precedent and harmonized CPLR 202 and 205. (Monahan v New York City Dept. of Corrections, 214 F3d 275; PRC Harris, Inc. v Boeing Co., 700 F2d 894; Global Reins. Corp.-U.S. Branch v Equitas Ltd., 18 NY3d 722; Global Fin. Corp. v Triarc Corp., 93 NY2d 525; Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193; Portfolio Recovery Assoc., LLC v King, 14 NY3d 410; Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20; Childs v Brandon, 60 NY2d 927; Martin v Dierck Equip. Co., 43 NY2d 583; Rescildo v Macy’s, 187 AD2d 112.) II. By its express terms, 28 USC § 1367 (d) cannot save Norex Petroleum Limited’s otherwise time-barred claims. (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375; Lehman Bros. v Hughes Hubbard & Reed, 92 NY2d 1014; Thompson v Paul, 657 F Supp 2d 1113; Jinks v Richland County, 538 US 456; Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511; Raygor v Regents of Univ. of Minn., 534 US 533; Williams v State of New York, 235 AD2d 776; Bittner v Cummings, 188 AD2d 504; United States v Locke, 471 US 84; Greenblatt v New York Sur. Co., 246 AD2d 385.)

      Jonathan R. Siegel, George Washington University Law School, Washington, D.C., amicus curiae.
    The Appellate Division, First Department, misconstrued the phrase “unless State law provides for a longer tolling period” in 28 USC § 1367 (d). (Matter of New York County Lawyers’ Assn. v Bloomberg, 19 NY3d 712; Matter of M.B., 6 NY3d 437; Jinks v Richland County, 538 US 456.)

      David Paul Horowitz, Pound Ridge, amicus curiae.
    I. The authority cited by the Appellate Division, First Department, in Norex Petroleum Ltd. v Blavatnik (105 AD3d 659 [2013]) does not support that Court’s holding and, in fact, support’s plaintiffs position. (Global Fin. Corp. v Triarc Corp., 93 NY2d 525.) II. The policies underpinning CPLR 202 are not violated by permitting plaintiff to invoke CPLR 205 (a) and commence a second action on the same transaction(s). (Insurance Co. of N. Am. v ABB Power Generation, 91 NY2d 180.) III. The “broad and liberal purpose” of CPLR 205 (a) cannot be reconciled with dismissal of plaintiff’s second action. (Gaines v City of New York, 215 NY 533.) IV. Besser v Squibb & Sons (146 AD2d 107 [1989]) involved a revival, not a saving statute, and has no bearing on CPLR 205 (a). (Besser v Squibb & Sons, 75 NY2d 847.)
   OPINION OF THE COURT

Read, J.

This dramatic and long-running contest over control of a lucrative oil field in Western Siberia reduces at present to an open question of New York civil procedure involving the interplay of CPLR 202, New York’s “borrowing” statute, and CPLR 205 (a), New York’s “savings” statute. When a cause of action accrues outside New York and the plaintiff is a nonresident, section 202 “borrows” the statute of limitations of the jurisdiction where the claim arose, if shorter than New York’s, to measure the lawsuit’s timeliness. New York’s “savings” statute, section 205 (a), allows a plaintiff to refile claims within six months of a timely prior action’s termination for reasons other than the merits or a plaintiffs unwillingness to prosecute the claims in a diligent manner.

This appeal calls upon us to decide whether a nonresident plaintiff who filed a timely action in a New York federal court may refile claims arising from the same transaction in state court within six months of the federal action’s non-merits termination, even though the suit would be untimely in the out-of-state jurisdiction where the claims accrued. We hold that such a lawsuit is not time-barred, and therefore reverse the Appellate Division.

I

On February 26, 2002, plaintiff Norex Petroleum Limited (Norex), a resident of Alberta, Canada, commenced an action against defendants Leonard Blavatnik, Victor Vekselberg, Access Industries, Inc., Renova, Inc. and Tyumen Oil Company, among others, in the United States District Court for the Southern District of New York, asserting various claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC §§ 1961-1968). Stripped to its basics, the complaint alleges that defendants wrested away Norex’s majority interest in a Russian oil company with significant proven reserves and, concomitantly, deprived Norex of hundreds of millions of dollars in profits and dividends as part of a massive scheme to take control of Russian oil assets.

Defendants moved to dismiss Norex’s complaint on various grounds, including forum non conveniens. On February 18, 2004, the judge granted the motion; she was persuaded that the relevant factors strongly favored a Russian forum (Norex Petroleum Ltd. v Access Indus., Inc., 304 F Supp 2d 570 [SD NY 2004]). Norex appealed, and by decision dated July 21, 2005, the Second Circuit reversed (id.; 416 F3d 146 [2d Cir 2005]). In so doing, the court remarked that “the district court did not ascribe any forum-shopping motives to Norex’s choice of a New York forum,” and that “the totality of circumstances suggests that Norex’s decision to sue in New York was informed by genuine convenience” (id. at 155, 157). Norex amended its complaint on December 21, 2005 to add BP LLP (BP) as a defendant, and to assert claims for tortious conduct and unjust enrichment under Russian law against all defendants except BP.

Defendants then moved to dismiss pursuant to Federal Rules of Civil Procedure rule 12 (b) (1) for lack of subject matter jurisdiction. On September 24, 2007, the district court granted the motion (id.; 540 F Supp 2d 438 [SD NY 2007]). The judge concluded that neither of the tests commonly used to analyze whether a federal statute has extraterritorial effect — the “conduct” test and the “effects” test — supported subject matter jurisdiction in a case involving the extraterritorial application of RICO. Since RICO supplied the sole basis for federal jurisdiction, the district court declined to exercise supplemental jurisdiction over Norex’s claims under Russian law (id. at 449; see 28 USC § 1367 [c] [3], discussed infra at 672 n 6). Norex again appealed to the Second Circuit.

While the appeal was pending, the United States Supreme Court decided Morrison v National Australia Bank Ltd. (561 US 247 [2010]), which held that federal securities fraud statutes generally do not apply extraterritorially. The Court abandoned the “conduct and effects” test, and instead adopted a bright-line rule that a federal statute lacks extraterritorial reach absent a clear congressional expression to the contrary. On September 28, 2010, the Second Circuit affirmed the district court’s dismissal of Norex’s complaint.

In light of Morrison, the Second Circuit held that RICO’s extraterritorial application was “properly considered as a question of whether [Norex’s] complaint states a claim for which a United States federal court can provide relief, not as a question of whether the court possesses subject matter jurisdiction to hear the claim” (Norex Petroleum Ltd. v Access Indus., Inc., 631 F3d 29, 31 [2d Cir 2010], superseding earlier op affg on other grounds 622 F3d 148 [2d Cir 2010]; see Morrison, 561 US at 253-254). Accordingly, the court determined that the district court had erred in dismissing Norex’s complaint for lack of subject matter jurisdiction, but concluded that dismissal was nonetheless warranted under Federal Rules of Civil Procedure rule 12 (b) (6) for failure to state a claim upon which relief may be given. The Second Circuit declined to revisit its previous holding that RICO is silent as to any extraterritorial application, and added that, in any event, Norex’s arguments were foreclosed by Morrison or otherwise unavailing.

On October 20, 2010, Norex filed a petition for rehearing en banc, and on November 22, 2010, the United States Department of Justice filed an amicus brief in support of a limited rehearing en banc. The Justice Department’s primary request, though, was for the Second Circuit to make clear that its ruling in Norex’s lawsuit did not apply when the government sought to enforce RICO either civilly or criminally. On December 8, 2010, the court issued an amended decision, which included a sentence to clarify that its opinion did not speak to government enforcement (see Norex Petroleum Ltd., 631 F3d at 33).

On January 18, 2011, the Second Circuit denied Norex’s request for a rehearing en banc. Norex then moved for a stay of the issuance of the court’s mandate, “to avoid potentially triggering the running of relevant ‘savings action statutes’ ” while it pursued certiorari in the United States Supreme Court; Norex identified CPLR 205 (a) as such a potential “savings” statute. The court granted the motion on February 1, 2011.

On March 7, 2011, Norex brought this action in Supreme Court. In a first amended complaint filed on June 23, 2011, Norex asserted eight claims against all defendants; namely, tortious interference with contract; tortious interference with prospective business relations; conversion; breach of fiduciary duties; unjust enrichment; action for money had and received; unjust enrichment in violation of Russian law; and intentional tortious conduct/minority oppression in violation of Russian law.

Defendants moved to dismiss the complaint on multiple grounds, including that Norex’s action was untimely under CPLR 202. As a resident of Alberta, Canada, alleging purely economic injuries, Norex’s injuries accrued in Alberta (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 529 [1999] [when the claimed injury is economic, the cause of action typically accrues “where the plaintiff resides and sustains the economic impact of the loss”], citing Matter of Smith Barney, Harris Upham & Co. v Luckie, 85 NY2d 193, 207 [1995], cert denied sub nom. Manhard v Merrill Lynch, Pierce, Fenner & Smith, 516 US 811 [1995]). Alberta law provides a two-year statute of limitations for the torts alleged by Norex, and does not have a “savings” statute akin to CPLR 205 (a).

By decision and order dated June 13, 2012, Supreme Court consolidated defendants’ various motions, and dismissed Norex’s complaint as time-barred (2012 NY Slip Op 33181[U] [2012]). Reasoning that CPLR 202 required her to apply Alberta’s shorter limitations period to determine if Norex’s state court action was timely, the judge ruled that Norex’s claims against the non-BP defendants expired at the latest on February 26, 2004 (i.e., two years after Norex filed its federal court action), and its claims against BP expired at the latest on December 21, 2007 (i.e., two years after Norex amended its federal complaint to add BP as a defendant).

Supreme Court also rejected Norex’s assertion that its state law claims were tolled under 28 USC § 1367 (d), which provides a plaintiff with a 30-day grace period to refile in a state court after a non-merits dismissal of supplemental claims “unless State law provides for a longer tolling period.” Supreme Court held that Norex did not enjoy the benefit of 28 USC § 1367 because CPLR 205 (a) provides for a longer tolling period. But the judge also concluded that CPLR 205 (a) did not, in fact, permit Norex’s state court action against defendants since, as she had already made clear, the lawsuit was untimely by virtue of CPLR 202. Norex appealed.

The Appellate Division unanimously affirmed (105 AD3d 659 [1st Dept 2013]). The court first agreed with Supreme Court that Norex’s state court action was untimely under Alberta law and therefore, by operation of CPLR 202, was also time-barred in New York. Further, the court adopted Supreme Court’s analysis with regard to why Norex’s state and Russian law claims were untimely under 28 USC § 1367 (d). The Appellate Division added in dictum that, even if Norex’s lawsuit had been timely under section 1367 (d), the relation-back doctrine would not have authorized the six state law claims that Norex alleged in its complaint, and, further, that Norex’s federal lawsuit was dismissed on the merits for purposes of section 1367 (d). Norex sought leave to appeal, which we granted on September 12, 2013 (21 NY3d 865 [2013]).

II

Norex contends that CPLR 205 (a) permits its “new” state court action because its initial, or “prior,” federal court action was timely under CPLR 202. Defendants, by contrast, argue that Norex may not benefit from section 205 (a) because its “new” action was untimely under the laws of Alberta, which has no savings law, and so is barred by section 202. Stated another way, Norex would have the courts apply section 202 only once, to determine whether its initial action would have been timely in Alberta when filed in federal court in New York, while defendants would ask us to apply section 202 a second time, to assess whether Norex’s follow-on action was timely in Alberta when commenced in state court.

Global Financial

Norex claims that in Global Financial we “implicitly rejected” the lower courts’ and defendants’ interpretation of how CLPR 202 and CPLR 205 (a) fit together. In Global Financial, the nonresident plaintiff brought an action in federal district court against the defendant to recover commissions and fees it claimed to be owed. The plaintiff filed its complaint just shy of six years after the defendant refused a demand for payment. Since both parties were Delaware corporations, the district court dismissed the complaint for lack of subject matter jurisdiction. Three months later, within CPLR 205 (a)’s six-month savings period, the plaintiff commenced a substantially similar suit in Supreme Court.

The defendant sought dismissal on the ground that the plaintiffs state court action was time-barred under CPLR 202 because its federal action was not brought within the time limitations imposed by the laws of either Delaware, where the plaintiff was incorporated, or Pennsylvania, where the plaintiff asserted that its principal place of business was located. The plaintiff countered that its claims were timely because they accrued in New York, where the parties’ contract was negotiated, executed, substantially performed and allegedly breached. At the time the federal lawsuit was brought, the claims would have been time-barred in Delaware (see Del Code Ann, tit 10, §§ 8106 [three-year limitations period for actions on a promise], 8111 [one-year limitations period for actions on services]) and Pennsylvania (see 42 Pa Cons Stat Ann § 5525 [four-year limitations period for contract actions]), but not in New York (see CPLR 213 [2] [six-year statute of limitations]). Supreme Court agreed with the defendant and dismissed the complaint, and the Appellate Division unanimously affirmed.

We held that “[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss” (Global Fin., 93 NY2d at 529, citing Smith Barney, 85 NY2d at 207), and here, the claims were time-barred “whether one look[ed] to . . . Delaware or Pennsylvania” (Global Fin., 93 NY2d at 530). Consequently, the plaintiff’s federal lawsuit — the “prior” action within the meaning of CPLR 205 (a) — was untimely, necessarily rendering the “new” action in state court untimely as well.

Thus, in Global Financial we decided where a nonresident’s contract claims accrue for purposes of CPLR 202, not whether a new action commenced pursuant to CPLR 205 (a) may be time-barred by CPLR 202 even though the prior action from which the new action flows was timely. In short, the defendant in Global Financial did not advance the argument pressed by defendants here. Indeed, citing CPLR 205 we observed that the parties “do not dispute that [the state court] action is timely if the Federal action was timely when commenced” (id. at 527 [emphasis added]). We had no occasion to consider, much less decide, whether the parties were correct.

The defendant in Global Financial alleged on appeal that the plaintiffs principal place of business was Florida, not Pennsylvania. We remarked in a footnote that it was “unnecessary for us to choose between these two States, as plaintiff’s claims are time-barred under Florida’s Statute of Limitations as well as Pennsylvania’s (see, Fla Stat Annot § 95.11 [2] [five-year limitations period for breach of contract])” (id. at 527 n 1). This footnote and our solitary reference to CPLR 205 in Global Financial provoked a lively debate between Norex and defendants.

Norex asserts that because Florida, like Alberta, does not have a savings statute, it is “[significant” that we “did not deem it relevant whether the laws of other states, whose statutes of limitations might be borrowed, had savings statutes different from CPLR 205.” Instead, we “simply applied CPLR 205 to determine that the relevant date for the statute of limitations analysis under CPLR 202 was the filing of the original federal complaint.” As a result, according to Norex, “Global Financial plainly stands for the proposition that CPLR 205 (a) is available to non-resident plaintiffs, like Global Financial and Norex, whose claims accrue outside of New York, even if the state laws ‘borrowed’ under CPLR 202 for purposes of determining the limitations period (Florida in the case of Global Financial, Alberta in this case) do not have a savings statute at all.”

Defendants respond that our citation to CPLR 205 in Global Financial was unimportant because “the laws of the foreign jurisdictions referred to under CPLR § 202 (Pennsylvania and Delaware) were virtually identical to CPLR § 205 (a)” (citing Del Code Ann, tit 10, § 8118 [one-year savings statute], and 42 Pa Cons Stat Ann § 5535 [one-year savings statute]). As a result, defendants continue, “in the absence of any conflict identified by the parties, [the Court] cited to CPLR § 205 (a) — as opposed to the similar laws of Pennsylvania or Delaware — relating to plaintiffs right to re-file, and . . . simply noted (without having to rule on the issue) that ‘[t]he parties do not dispute that this action is timely if the Federal action was timely when commenced’ ” (quoting Global Fin., 93 NY2d at 527). Defendants therefore suggest that the parties and the Court focused on the original filing date in Global Financial merely because the plaintiffs claim was going to be “saved” on the refiling date, if originally timely filed, no matter which state’s law applied. As summed up by defendants, “borrowing all of Delaware, Pennsylvania, or Florida law — i.e., limitations and tolling provisions — would have been outcome-neutral under CPLR § 202.”

Norex points out that defendants’ argument breaks down if Florida, like Alberta, has no savings statute. But nothing in our opinion in Global Financial indicates that we ever took into account the savings statutes (or lack thereof) in any of the relevant foreign states. And both parties read far too much into our reference to CPLR 205 in a case where, as previously noted, the parties agreed, for whatever reason, that the state court action was not time-barred by section 202 so long as the prior federal court action had been timely filed.

Smith Barney

Defendants attach great importance to our repeated admonition that when New York borrows a statute of limitations, the borrowed limitations period comes fully encumbered with all the foreign jurisdiction’s tolling rules. In Smith Barney, the case principally relied on by defendants, the common issue in two appeals was whether the arbitrators or the courts should decide the timeliness of disputes that the customers sought to arbitrate with their securities brokers. The arbitration agreements contained New York choice-of-law provisions and were governed by the Federal Arbitration Act. The Appellate Division concluded that the question of timeliness was for the arbitrator to decide. We reversed and remitted each case for the Appellate Division to resolve the parties’ statute of limitations arguments, including “applicability of the borrowing statute, relevant accrual dates, tolls and extensions” (Smith Barney, 85 NY2d at 207).

When discussing CPLR 202, we observed that “[i]n borrowing the foreign statute, ‘[a]ll the extensions and tolls applied in the foreign state must be imported with the foreign statutory period, so that the entire foreign statute of limitations . . . applied], and not merely its period’ ” (id., quoting McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C202:3 at 109). This is so because the legislature enacted section 202 primarily to prevent forum shopping; i.e., to make sure that nonresidents do not select a New York forum and burden New York’s state and federal courts when, and perhaps precisely because, their lawsuits are time-barred by the applicable laws of the foreign states where the causes of action accrued (see Insurance Co. of N. Am. v ABB Power Generation, 91 NY2d 180, 187-188 [1997]).

As defendants emphasize, many New York cases recite and apply the general rule that, when borrowing foreign law pursuant to CPLR 202, foreign tolls and extensions must be imported, too (see e.g. Martin v Dierck Equip. Co., 43 NY2d 583 [1978] [action for personal injuries brought in New York more than two years after the plaintiff’s claims accrued in Virginia was time-barred under the borrowing statute because Virginia would apply a two-year statute of limitations without any possible tolls]; Childs v Brandon, 60 NY2d 927, 929 [1983] [in borrowing a foreign jurisdiction’s statute of limitations, “its tolling statute is also borrowed”]; Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20, 31 [1984] [“in ‘borrowing’ a Statute of Limitations of another State, a New York court will also ‘borrow’ the other State’s rules as to tolling”]; Portfolio Recovery Assoc., LLC v King, 14 NY3d 410 [2010] [determining that Delaware’s tolling provision did not extend a nonresident plaintiffs time to bring a lawsuit in New York on a cause of action that accrued in Delaware]; but see GML, Inc. v Cinque & Cinque, P.C., 9 NY3d 949, 951 [2007] [borrowing Tennessee’s one-year statute of limitations, but not its tolling provisions, because “(a) conclusion to the contrary would cause the statute of limitations to be tolled indefinitely against these defendants, (and the Court did) not believe that the Legislature intended this result in enacting CPLR 202”]).

As Professor Siegel explains, CPLR 202 does not “necessarily [call for] a ‘borrowing’ [because] the statute really dictates a comparison, with a ‘borrowing’ of the foreign period only if it is the shorter of the two compared”; and

“[t]he periods that are compared are the ‘net’ periods. That is, the New York period, with all relevant New York extensions and tolls integrated, is one prong of the comparison, and the foreign period, with the foreign tolls and extensions integrated, is the other. The New York tolls are not superimposed on the foreign period, or vice versa.” (Siegel, NY Prac § 57 at 82 [5th ed 2011].)

But it does not follow, as defendants insist, that section 202 required Norex’s state court action to be timely under Alberta law when filed in March 2011, either because Alberta’s statute of limitations had not yet expired or Norex’s claims were saved by an Alberta tolling statute.

Notably, none of the tolling cases relied on by defendants dealt with a refiled action like Norex’s. These decisions merely show that when assessing whether Norex’s original action was timely for purposes of CPLR 205 (a), Supreme Court was required to consider the “ ‘net’ period[ ] . . . the [Alberta] period, with [the Alberta] extensions and tolls integrated” (id.). Here, the absence of a tolling or savings provision in Alberta law had no practical effect with regard to Norex’s original lawsuit. Norex says that it filed its federal complaint within weeks of the events that gave rise to its claims, thereby making its federal action timely under “any potentially applicable” statute of limitations, without tolling. Defendants do not gainsay this.

Besser

Next, defendants find support for their position in Besser v Squibb & Sons (146 AD2d 107 [1st Dept 1989], affd without op 75 NY2d 847 [1990]). Besser involved the relationship between CPLR 202 and CPLR 214-c (2). The latter provision “revived” time-barred causes of action arising out of exposure to diethylstilbestrol (DES) and other specified toxic substances that might cause harmful effects years, and sometimes decades, after exposure. Section 214-c (2) granted plaintiffs claiming injuries from exposure to these substances a one-time, one-year window during which to bring suits that were either barred as of the statute’s effective date, or had been dismissed prior to its effective date solely because the applicable limitations period had expired.

The plaintiff in Besser was a non-New York resident at the time her personal injury claim accrued in either Pennsylvania or New Jersey. Further, her claim was untimely under the laws of both states. As a result, if CPLR 202 applied, her lawsuit was time-barred. Accordingly, she argued that CPLR 202 was not applicable in actions authorized by the revival statute. The Appellate Division disagreed, observing that “the Legislature’s intent” in enacting the revival statute was “to provide to New York residents only — not the entire world — a one-year window period in which to sue for claims otherwise barred by law” (id. at 110 [emphasis added]).

Defendants reason by analogy that CPLR 202 should trump CPLR 205 (a), too. But CPLR 214-c (2) and CPLR 205 (a) bear no resemblance to each other beyond their shared general character as remedial statutes. Importantly, there is no evident legislative intent to limit the savings statute’s beneficial scope to resident plaintiffs. As Judge Cardozo explained nearly a century ago, New York’s savings statute

“is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts” (Gaines v City of New York, 215 NY 533, 539 [1915] [emphasis added]; see also Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511, 521 [2009] [Section 205 (a) “shares with its venerable predecessor provisions the broad and liberal purpose of remedying what might otherwise be the harsh consequence of applying a limitations period where the defending party has had timely notice of the action” (internal quotation marks omitted)]).

Forum Shopping

Finally, defendants accuse Norex of forum shopping in contravention of CPLR 202, having made a “strategic decision” to litigate first in Russia and then in federal court, where it did not assert any New York claims, before finally settling on state court when these earlier lawsuits proved unsuccessful. Norex counters that while CPLR 202 is meant to prevent a nonresident plaintiff from forum shopping by suing in New York courts to take advantage of a longer statute of limitations, that policy has been “fully served” here. This is so, Norex argues, because it filed its original complaint in federal court in New York “within weeks of the events that [gave] rise to its claims, putting defendants on notice and making those claims timely under any statute of limitations, including the Alberta statute of limitations that the [Appellate Division] held must be borrowed under CPLR 202.” Norex adds that the federal courts specifically rejected forum shopping as a motive for its federal lawsuit. Further, “[b]ecause Norex was manifestly not forum shopping when it filed its first action in New York, Norex cannot be forum shopping by re-filing that action in New York in accordance with CPLR 205 (a).”

We agree with Norex that, once it timely commenced its federal court action in New York, the borrowing statute’s purpose to prevent forum shopping was fulfilled, and CPLR 202 had no more role to play. Because Norex’s “prior” federal court action was timely under the borrowing statute, the “new” action that it brought pursuant to the savings statute “would have been timely commenced at the time of commencement of the prior action” (CPLR 205 [a]). Stated another way, it is irrelevant that Alberta law does not have a savings statute similar to CPLR 205 (a) because at the point in time when Norex filed its “new” action in Supreme Court, the borrowing statute’s requirements had already been met. In our view, this reading of the way in which CPLR 202 and CPLR 205 (a) interrelate best comports with statutory language, and honors both the borrowing statute’s purpose to prevent forum shopping and the savings statute’s goal to “implement[ ] the vitally important policy preference for the determination of actions on the merits” (Goldstein, 13 NY3d at 521 [internal quotation marks omitted]; see generally Horowitz, Burden of Proof, “A Dangerous Intersection,” 86 NY St BJ 20 [May 2014]).

III

The lower courts’ rulings with respect to 28 USC § 1367 (d) evoked interest in legal academic circles. An amicus curiae brief on this topic, which was jointly filed by Professors Thomas D. Rowe, Stephen B. Burbank and Thomas M. Mengler, supported Norex’s motion for leave to appeal; another amicus brief, filed by Professor Jonathan Siegel, similarly took issue with the Appellate Division’s interpretation of section 1367 (d). Professors Rowe, Burbank and Mengler, who endorsed Professor Siegel’s brief, assisted in drafting the federal supplemental jurisdiction statute.

The amici curiae disagree with the Appellate Division’s holding that, as summarized by Professor Siegel, “§ 1367 (d)’s tolling period does not apply because New York’s CPLR 205 (a) generally provides a longer tolling period, even though . . . CPLR 205 (a) does not apply to this particular case” by operation of CPLR 202. Professors Rowe, Burbank and Mengler call this outcome an “intolerable Catch-22.” Professor Siegel offered various reasons why the Appellate Division was incorrect and how its holding “disserve[d] the goals of judicial economy, convenience, and fairness” which section 1367 (d) was designed to promote.

Because we have determined that Norex’s state court action is not time-barred by CPLR 202, we need not and do not consider whether Norex’s claims were timely filed in state court pursuant to 28 USC § 1367 (d). We note, though, that in light of our disposition of this appeal, the complained-of “Catch-22” is unlikely to recur.

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

Chief Judge Lippman and Judges Graffeo, Smith, Pigott, Rivera and Abdus-Salaam concur.

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

      . CPLR 202 states in its entirety that
      “[a]n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.”

      . CPLR 205 (a) states, as relevant, that
      “[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

      . We decide only that Norex’s state court action, refiled pursuant to CPLR 205 (a), is not time-barred by CPLR 202; we do not address and express no opinion about whether Norex’s lawsuit fulfills other requirements of section 205 (a). For purposes of discussion in this opinion, we simply assume terminated on the merits, and Norex’s state court action alleges claims “upon the same transaction or occurrence” as its federal predecessor. We appreciate that defendants contend that the termination of Norex’s federal action constituted “a final judgment upon the merits” within the meaning of CPLR 205 (a). Upon remittal, Supreme Court must resolve this and any other issues raised by defendants in their motions to dismiss and not reached because the lawsuit was dismissed as untimely.

      . Defendants petitioned for certiorari on February 17, 2006 (2006 WL 431070 [2006]), which the United State Supreme Court denied on May 30, 2006 (Tyumen Oil Co. v Norex Petroleum Ltd., 547 US 1175 [2006]).

      . On April 18, 2011, Norex filed its certiorari petition (79 USLW 3636 [2011]), which was dismissed upon the parties’ stipulation on June 29, 2011. The Second Circuit eventually issued its mandate on July 26, 2011.

      . Subsection (d) of 28 USC § 1367 states in its entirety that
      “[t]he period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is-voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
      Subsection (a) vests the district courts with supplemental jurisdiction over all nonfederal claims in the action which are part of the underlying case or controversy (28 USC § 1367 [a]). Subsection (c) enumerates the grounds upon which the district court may, in its discretion, decline to exercise supplemental jurisdiction, including that “the district court has dismissed all claims over which it has original jurisdiction” (28 USC § 1367 [c] [3]), as happened here.