author: Chief Judge Kaye.

text:
    [833 NE2d 213, 800 NYS2d 70]
    The People of the State of New York, Respondent, v Carlos Caban, Appellant.
    Argued May 4, 2005;
    decided June 14, 2005

      POINTS OF COUNSEL

      Robert J. Boyle, New York City, and Lynne F. Stewart for appellant.
    I. The lower court committed reversible error in admitting, over appellant’s objection, the hearsay declarations of Derrick Garcia and Pello Torres. (People v Rastelli, 37 NY2d 240, 423 US 995; People v Salko, 47 NY2d 230; People v Ardito, 86 AD2d 144, 58 NY2d 842; People v Bell, 48 NY2d 913; People v Green, 188 AD2d 662; People v Bac Tran, 80 NY2d 170; People v Elias, 163 AD2d 230, 76 NY2d 985; People v Crimmins, 36 NY2d 230.) II. Appellant was denied effective assistance of counsel when counsel failed to (1) move to dismiss the conspiracy count on the ground that George Castro was an accomplice as a matter of law and (2) request that the jury be instructed that Castro was an accomplice as a matter of law and that his testimony required corroboration. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; People v Benevento, 91 NY2d 708; People v Robot, 84 NY2d 1021; People v Vataj, 121 AD2d 756, 69 NY2d 985; People v Berger, 52 NY2d 214; People v Sweet, 78 NY2d 263; People v Cobos, 57 NY2d 798; People v Cruz, 291 AD2d 1; People v Velasquez, 76 NY2d 905.) III. The prosecutor’s misconduct during summation denied appellant due process of law. (Donnelly v DeChristoforo, 416 US 637; People v Ashwal, 39 NY2d 105; People v Diaz, 170 AD2d 202; People v Steinhardt, 9 NY2d 267; People v McReynolds, 175 AD2d 31; People v Hicks, 102 AD2d 173; People v Baily, 58 NY2d 272; People v Walters, 251 AD2d 433; People v Tolbert, 198 AD2d 132; People v Brazzeal, 172 AD2d 757.)

      Robert T. Johnson, District Attorney, Bronx (Peter D. Codding-ton of counsel), for respondent.
    I. Appellant has not preserved his claim that the coconspirators’ statements were inadmissible because there was no proof that the conspiracy existed at the time they were uttered; in any event, Justice Moore correctly admitted the evidence because the People proved the conspiracy without recourse to the statements by the close of the prosecution’s case. (People v Liccione, 50 NY2d 850; People v Seit, 86 NY2d 92; People v Damiano, 87 NY2d 477; People v Olivo, 52 NY2d 309; People v Kinchen, 60 NY2d 772; People v Ramos, 99 NY2d 27; People v Lyons, 81 NY2d 753; People v Berkowitz, 50 NY2d 333; People v McKane, 143 NY 455; People v Miles, 123 App Div 862.) II. Appellant’s attorney provided a meaningful and effective defense. (People v Rivera, 71 NY2d 705; Strickland v Washington, 466 US 668; People v Brown, 45 NY2d 852; People v Taylor, 1 NY3d 174; People v Benevento, 91 NY2d 708; People v Basch, 36 NY2d 154; People v Besser, 96 NY2d 136; People v Cobos, 57 NY2d 798; People v Vataj, 69 NY2d 985; People v Stultz, 2 NY3d 277.) III. The prosecutor properly commented on the evidence and fairly responded to the defense arguments and ad hominem attacks. (People v Rivera, 73 NY2d 941; People v Ashwal, 39 NY2d 105; People v Galloway, 54 NY2d 396; People v Balls, 69 NY2d 641; People v Medina, 53 NY2d 951; People v

      Halm, 81 NY2d 819; People v Anthony, 24 NY2d 696; People v Berg, 59 NY2d 294; People v Nuccie, 57 NY2d 818; People v Turriago, 90 NY2d 77.)
   OPINION OF THE COURT

Chief Judge Kaye.

Defendant was convicted of conspiracy to commit murder, based largely on the testimony of prosecution witness George Castro. By his own admission, Castro was a street-level drug dealer who, along with several others, worked for defendant, selling crack on Fox Street in the Bronx. Castro resided in defendant’s stash house, and was there on March 18, 1995, when the charged conspiracy was allegedly hatched. The object of the conspiracy was to kill Angel Ortiz, a rival drug dealer who also sold crack on Fox Street. Castro testified that he was packaging drugs in the stash house on March 18, along with two of defendant’s dealers, Pello Torres and Melvin Butler, and defendant’s brother, Derrick Garcia, when defendant informed the group that Ortiz “needed ... to be killed” because his operations were competing with defendant’s drug business, and offered to pay $5,000 for the murder. Castro further testified that Garcia responded, “I’ll do it,” and Torres offered to provide Garcia with a gun.

On June 1, 1995, Ortiz was murdered in a Fox Street playground, in the presence of three of his drug dealers and his girlfriend’s four-year-old daughter. According to Castro’s account of the killing, he was in front of the stash house when Torres approached him and said, “It’s time.” Torres then went into the house, whereupon Garcia came out with a friend. Castro testified that he followed Garcia and the friend to the playground and watched from across the street as Garcia approached Ortiz and argued with him over defendant’s drug “spot.” As Ortiz turned to walk away, Garcia shot him several times, killing him.

On cross-examination, Castro admitted his involvement in a prior, unsuccessful attempt on Ortiz’s life, which took place sometime in mid-March 1995. Although the trial testimony did not establish whether this incident occurred before or after the March 18 meeting, on the date in question Castro, Torres and Butler set out to kill Ortiz. Butler was armed with two guns, while Castro acted as a lookout. The plan was aborted, however, when the police appeared.

Defendant was eventually indicted and tried for murder in the second degree, manslaughter in the first degree, conspiracy in the second, degree, and criminal possession of a weapon in the second degree. The jury convicted him of conspiracy, but acquitted him of the substantive crimes, and a divided Appellate Division affirmed.

I. Statements of Coconspirators

Defendant’s first claim of error relates to the three statements of Garcia and Torres, as testified to by Castro—Garcia’s March 18 “I’ll do it” and Torres’s offer to provide Garcia with a gun, and Torres’s June 1 “It’s time.” Defendant argues that hearsay statements of coconspirators are admissible only when a prima facie case of conspiracy is established independent of the statements, and maintains that the People failed to establish such a case here. We reject that claim.

“A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule” (People v Bac Tran, 80 NY2d 170, 179 [1992]). The theory underlying the coconspirator’s exception is that all participants in a conspiracy are deemed responsible for each of the acts and declarations of the others (see e.g. People v Rastelli, 37 NY2d 240, 244 [1975]; Martin, Capra and Rossi, New York Evidence Handbook § 8.3.2.4, at 720 [2d ed]). The exception “is not limited to permitting introduction of a conspirator’s declaration to prove that a coconspirator committed the crime of conspiracy, but, rather, may be invoked to support introduction of such declaration to prove a coconspirator’s commission of a substantive crime for which the conspiracy was formed” (People v Salko, 47 NY2d 230, 237 [1979], rearg denied 47 NY2d 1010 [1979]). However, as defendant points out, such declarations may be admitted only when a prima facie case of conspiracy has been established. While the prima facie case of conspiracy “must be made without recourse to the declarations sought to be introduced” (Salko, 47 NY2d at 238), “the testimony of other witnesses or participants may establish a prima facie case” (People v Wolf, 98 NY2d 105, 118 [2002]).

A. Relevance of the Challenged Statements

At the outset, we note that the same evidence may be admissible under different theories when offered for different purposes. Here, some of the statements at issue were relevant for different purposes with respect to the different charges for which defendant was tried. Specifically, although the March 18 declarations of Garcia and Torres were hearsay when offered to prove the murder and related charges of which defendant was acquitted, they were nonhearsay when offered to prove the only charge now before us—conspiracy.

A conspiracy consists of an agreement to commit an underlying substantive crime (here, murder), coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy {see Penal Law §§ 105.15, 105.20). Thus, with respect to the conspiracy charge, Garcia’s acceptance of defendant’s solicitation to murder Ortiz was relevant not for its truth, but rather as evidence of an agreement to commit the underlying crime— itself an essential element of the crime of conspiracy. In other words, whether or not Garcia in fact killed Ortiz, his acceptance of defendant’s invitation to do so was a verbal act which rendered defendant and his coconspirators culpable for the inchoate crime of conspiracy, even if the planned substantive crime never came to fruition. Indeed, even if Garcia had no genuine intent ever to commit the murder, defendant would be guilty of conspiracy if he believed he had entered into such an agreement.

“[T]he ‘act’ of agreeing is concrete and unambiguous as an expression of each actor’s intent to violate the law. . . . The fact of agreement serves only to unequivocally establish a particular actor’s intent to commit the object crime by acting with others.
“The identity and degree of participation by the other persons are wholly irrelevant. Also irrelevant are the niceties of contract law concerning when an agreement is consummated (e.g., meeting of the minds). It is the individual who is prosecuted [for conspiracy] and necessarily it is the individual who must have the prescribed mens rea. The requisite intent is to join with others to commit a substantive crime. If an individual believes he has so joined, it is sufficient to establish complicity, regardless of the actual fact of agreement. . . . This is particularly so . . . where ... it appears that the individual defendant is the originator of the criminal plan and the one most anxious to see the successful completion of the criminal objective” (People v Schwimmer, 66 AD2d 91, 95-96 [2d Dept 1978], affd for reasons stated in op below 47 NY2d 1004, 1005 [1979]).

Similarly, Torres’s statement that he would provide the gun for a later homicide—even if ultimately untrue—was admissible for the fact that it was said, inasmuch as its utterance provided evidence of Torres’s unlawful agreement with defendant and Garcia. Thus, because the March 18 statements were nonhearsay with respect to the conspiracy charge, the People had no obligation to establish a prima facie case of conspiracy in order for the statements to be admissible.

The analysis differs respecting the admissibility of these declarations as relevant proof of the substantive crimes. Garcia’s inculpatory offer to “do it,” if introduced as evidence that he had in fact committed the June 1 homicide, would—although proffered in that event for its truth—nevertheless be admissible at defendant’s trial under the coconspirator’s exception to the hearsay rule as evidence of defendant’s complicity in the murder. In that event, however, a prima facie case would need to be established independent of the hearsay statement. The same rule applies to Torres’s offer to provide the gun, if used to establish the conspirators’ collective guilt of murder and weapon possession.

Thus, the same declarations—relevant both to conspiracy and to the substantive crimes whose commission formed the basis of the conspiratorial enterprise—were admissible at defendant’s trial under different theories and different rules, depending on which crimes they were offered to prove. Since the statements were nonhearsay with respect to the conspiracy charge—the only charge before us—defendant’s challenge to their admissibility concerning that charge is without merit.

B. Prima Facie Case of Conspiracy

The third challenged statement—Torres’s June 1 “It’s time” remark to Castro—was offered for its truth, and therefore hearsay, whether as to the conspiracy charge or the substantive crimes. In the context of Castro’s account, Torres’s statement in effect meant, “The time has come to kill Ortiz.” Nevertheless, this statement was properly admissible against defendant as a declaration made by a coconspirator in the course or in furtherance of the conspiracy, so long as the People established a prima facie case independent of any hearsay statements.

The Appellate Division majority, in affirming defendant’s conspiracy conviction, correctly concluded that the People had met this burden. The prosecution introduced, through Castro, defendant’s statements at the March 18 meeting that he would pay $5,000 to have Ortiz murdered, along with evidence of Garcia’s acceptance of defendant’s proposal and Torres’s offer to procure the murder weapon. Castro further testified that both the shooter and the person allegedly responsible for securing the gun and entering defendant’s stash house to notify the shooter that the intended victim was in the playground were present at the March 18 meeting. That these individuals worked as drug dealers for defendant, whose motive for killing Ortiz arose from a desire to eliminate competition, provides further circumstantial proof that the participants in the June 1 shooting were acting on behalf of defendant to protect the economic interests of the drug business from which they all benefitted. In this regard, Castro testified that Garcia argued with Ortiz about defendant’s drug “spot” just before he shot him.

C. Order of Proof

We further note that the trial court did not err in conditionally admitting any hearsay statements of coconspirators “subject to connection”—that is, subject to later proof of a prima facie case of conspiracy. Although any statements admitted pursuant to the coconspirator’s exception must have been made after the formation of the conspiracy—that is, in the course and in furtherance of it—testimony establishing the prima facie case need not precede testimony about the hearsay statements. Inasmuch as the order of proof at trial is committed to the sound discretion of the trial court (see e.g. People v Olsen, 34 NY2d 349, 353 [1974]), a coconspirator’s statements are admissible as long as the People independently establish a conspiracy by the close of their case (see e.g. People v McKane, 143 NY 455, 473 [1894] [even if the coconspirator’s statements were objectionable at the time they were introduced, they were subsequently made competent by proof of the defendant’s admissions that the coconspirator was acting under his orders]; People v Becker, 215 NY 126, 148-149 [1915]).

II. Ineffective Assistance of Counsel

During the charge conference, defense counsel requested an instruction that if the jury found as a fact that Castro was an accomplice, his testimony required corroboration. The court so charged the jury over the prosecutor’s objection. Defense counsel did not, however, request the court to charge that Castro was an accomplice as a matter of law. Defendant now contends that his trial counsel was ineffective for failing to request the latter instruction, and for failing to move to dismiss the conspiracy count on the ground that the People failed in their obligation to corroborate the testimony of an accomplice. These contentions lack merit.

To prevail on his claim that he was denied effective assistance of counsel, defendant must demonstrate that his attorney failed to provide meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial (see People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Flores, 84 NY2d 184, 188 [1994]). Further, to establish ineffective assistance, a defendant must “demonstrate the absence of strategic or other legitimate explanations” for counsel’s allegedly deficient conduct (People v Rivera, 71 NY2d 705, 709 [1988]).

There can be no denial of effective assistance of trial counsel arising from counsel’s failure to “make a motion or argument that has little or no chance of success” (People v Stultz, 2 NY3d 277, 287 [2004]). Because the evidence adduced at trial did not establish that Castro was an accomplice as a matter of law, counsel’s failure to request that the jury be charged that he was did not constitute ineffective assistance.

An accomplice is defined as,

“a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in . . .
“[t]he offense charged . . . or . . .
“[a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2]).

Where “the undisputed evidence establishes that a witness is an accomplice, the jury must be so instructed but, if different inferences may reasonably be drawn from the proof regarding complicity . . . the question should be left to the jury for its determination” (People v Basch, 36 NY2d 154, 157 [1975]). In other words, a “witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged” (People v Besser, 96 NY2d 136, 147 [2001]).

While Castro’s role in the initial mid-March attempted murder, which may have occurred prior to the March 18 meeting and thus prior to and apart from the conspiracy, coupled with Castro’s presence at the March 18 meeting and June murder, may have been sufficient to raise a factual issue as to his accomplice status respecting the charged conspiracy, this testimony was not sufficient to render Castro an accomplice as a matter of law. If the mid-March attempted murder predated the March 18 meeting at which the conspiracy was formed, Castro’s participation in it would have been insufficient to render him an accomplice to the conspiracy as a matter of law, even though its intended victim was the same as the subject of the murder conspiracy (see People v Cobos, 57 NY2d 798, 801 [1982] [witness’s participation in an assault and attempted robbery did not make him an accomplice as a matter of law to murder of the same victim committed a few hours later by accomplices to the earlier crimes]). Further, Castro testified that he did not help Garcia with the June murder. Thus, the jury could have either found, as defense counsel argued, that Castro was indeed an accomplice to the conspiracy because he participated in a prior attempt on Ortiz’s life and attended the March 18 meeting, or credited the prosecutor’s contrary argument that Castro’s presence at the murder did not make him an accomplice inasmuch as the record contained no evidence showing that he was anything more than a benign spectator at the March 18 meeting and the June murder. That being so, the undisputed evidence did not establish Castro’s accomplice status, and the issue was therefore left to the jury as a question of fact.

Defendant’s further argument that Castro was an accomplice as a matter of law because he was undeniably an accomplice to a separate, uncharged drug conspiracy involving defendant is also without merit. Although it is undisputed that Castro worked for defendant’s drug business, the indictment filed in this criminal action did not allege a conspiracy to sell drugs; rather, the sole charges involved a conspiracy to commit (and the substantive commission of) murder. An accomplice is a witness in a criminal action who may reasonably be considered to have participated in either the offense charged or an “offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2] [b]).

Here, the facts and conduct constituting the crimes of murder and conspiracy to commit murder did not involve any sale of drugs in which Castro participated, nor was any sale of drugs alleged in the indictment as an overt act committed in furtherance of the conspiracy. Although the underlying motive for Ortiz’s murder reflected a desire to eliminate Ortiz as a competitor of defendant’s drug business, motive is not an element of murder or conspiracy. The mere circumstance that the elimination of a competitor may have furthered the ends of the uncharged drug conspiracy is insufficient to confer accomplice-as-a-matter-of-law status on a nonparticipant in the murder (see e.g. People v McAuliffe, 36 NY2d 820, 822 [1975] [“To hold, as defendant would have us, that it should suffice to show only that the particular witness was ‘in some way implicated’ in defendant’s criminal activity would be to stretch the statute far beyond the ambit intended by the Legislature”]; People v Brooks, 34 NY2d 475, 477-478 [1974]; People v Fiore, 12 NY2d 188, 199-200 [1962] [a conspiracy to conceal a prior conspiracy is an independent crime]).

Defendant has, moreover, failed to demonstrate the absence of strategic or other legitimate explanations for counsel’s decision to request only that Castro’s accomplice status be submitted to the jury as a question of fact. In order to have been entitled to an accomplice-as-a-matter-of-law charge, defendant would have needed to establish that the initial attempted murder involving Castro postdated the birth of the conspiracy at the March 18 meeting. But had defense counsel endeavored to clarify that sequence of events, he would have risked eliciting testimony that the attempted murder predated the March 18 meeting, thereby potentially depriving him of the opportunity to submit even as a question of fact the issue of Castro’s status as an accomplice to the conspiracy to murder Ortiz.

We reject defendant’s additional claim that counsel was ineffective for failing to move to dismiss the conspiracy count for lack of corroboration of accomplice testimony. “A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). However, corroborative evidence need not establish all elements of the offense. “New York’s accomplice corroboration protection . . . requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence” that connects “the accomplice evidence to the defendant” (People v Breland, 83 NY2d 286, 293 [1994]). Indeed, even “[s]eemingly insignificant matters may harmonize with the accomplice’s narrative so as to provide the necessary corroboration” (People v Steinberg, 79 NY2d 673, 683 [1992]).

Even if Castro had been found by the jury to be an accomplice, there was sufficient independent evidence of corroboration to satisfy the minimal requirements of CPL 60.22 (1). Castro’s testimony regarding defendant’s motive for killing Ortiz—to protect his drug-dealing operation—was supported by Ortiz’s girlfriend, who testified that defendant and Ortiz were competing drug dealers on Fox Street. In addition, that Garcia—defendant’s brother and one of the street-level dealers present at the March 18 meeting—was arrested for Ortiz’s murder supported Castro’s testimony. Moreover, independent evidence from the police and medical examiner as to the location of Ortiz’s body at the scene of the murder and the location of the gunshot wounds corresponded with the details that Castro provided (see Breland, 83 NY2d at 293). Thus, there were sufficient “standard confirmatory ties” (id. at 294) from which the jury could have concluded that Castro credibly connected defendant to the murder and testified about the events surrounding the June 1 killing. Accordingly, defense counsel was not ineffective for failing to seek dismissal of the conspiracy charge (see Stultz, 2 NY3d at 287).

Finally, we note that defendant claims ineffective assistance under both the Federal and State Constitutions (see US Const Amend VI; NY Const, art I, § 6). Under the two-pronged test established in Strickland v Washington (466 US 668 [1984]), a defendant must, in order to prevail on a federal claim of ineffective assistance, demonstrate both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant. Prejudice exists when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (466 US at 694). Our state standard of meaningful representation, by contrast, does not require a defendant to “fully satisfy the prejudice test of Strickland,” although we “continue to regard a defendant’s showing of prejudice as a significant hut not indispensable element in assessing meaningful representation” (Stultz, 2 NY3d at 284), whose prejudice component focuses on the “fairness of the process as a whole rather than its particular impact on the outcome of the case” (Benevento, 91 NY2d at 714). Thus, under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial. Because our state standard thus offers greater protection than the federal test, we necessarily reject defendant’s federal constitutional challenge by determining that he was not denied meaningful representation under the State Constitution.

Defendant’s further claim that prosecutorial misconduct in summation warrants reversal is without merit.

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

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed.

       Plainly, defendant’s own statements could be received in evidence as party admissions (see People v Chico, 90 NY2d 585, 589 [1997]; Reed v McCord, 160 NY 330, 341 [1899] [“admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made”]; Prince, Kichardson on Evidence § 8-201, at 510 [Farrell 11th ed] [defining an admission as “an act or declaration of a party . . . which constitutes evidence against the party at trial”]).


source: Caselaw Access Project

author: Read, J. R.S. Smith, J.

license: Public Domain

text:
    [833 NE2d 232, 800 NYS2d 89]
    Raymond Corporation et al., Respondents, v National Union Fire Insurance Company of Pittsburgh, Pa., Appellant.
    Argued May 3, 2005;
    decided June 29, 2005

      POINTS OF COUNSEL

      Fiedelman & McGaw, Jericho (.Andrew Zajac of counsel), Cozen O’Connor, Philadelphia, Pennsylvania, and Mitchell, Goris & Knych, Cazenovia, for appellant.
    I. Any arguments raised by Raymond Corporation and Arbor Handling Services, Inc. in support of the Appellate Division’s decision would be unpreserved for this Court’s review. (Incorporated Vil. of Cedarhurst v Hanover Ins. Co., 89 NY2d 293; Utica Mut. Ins. Co. v Prudential Prop. & Cas. Ins. Co., 64 NY2d 1049; Arc Eng’g v State of New York, 293 NY 819; Lindlots Realty Corp. v County of Suffolk, 278 NY 45.) II. The Supreme Court properly held that the insuring clause in the vendor’s endorsement does not extend to Arbor Handling Services, Inc.’s independent negligence. (Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N.Y., 45 NY2d 551; Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169; Basil Dev. Corp. v General Acc. Ins. Co., 89 NY2d 1057; Harris v Allstate Ins. Co., 309 NY 72; Jefferson Ins. Co. of N.Y. v Travelers Indent. Co., 92 NY2d 363; Baughman v Merchants Mut. Ins. Co., 87 NY2d 589; Champion Intl. Corp. v Continental Cas. Co., 546 F2d 502; Hartford Fire Ins. Co. v St. Paul Surplus Lines Ins. Co., 280 F3d 744; Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347; RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 NY3d 158.) III. The Supreme Court’s well-founded findings of fact should be reinstated. (Matter of Frontier Ins. Co. v Town Bd. of Town of Thompson, 285 AD2d 953; G.B. Kent & Sons v Helena Rubinstein, Inc., 47 NY2d 561; Andon v 302-304 Mott St. Assoc., 94 NY2d 740; Friedman v State of New York, 67 NY2d 271; Loughry v Lincoln First Bank, 67 NY2d 369; Kuehne & Nagel v Baiden, 36 NY2d 539; Harrington v Harrington, 290 NY 126.) IV The Supreme Court correctly determined that the exclusion for “any failure to make such . . . adjustments ... or servicing as the Vendor has agreed to make” bars Arbor Handling Services, Inc.’s claim for coverage. (Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 66 NY2d 1020; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208.)

      Powers Santola, LLP, Albany (Michael J. Hutter of counsel), and Nixon Peabody LLP, Rochester (William S. Brandt of counsel), for respondents.
    I. The scope of insurance coverage under a vendor’s endorsement is determined by the wording of the vendor’s endorsement in issue. (Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866; State of New York v Home Indem. Co., 66 NY2d 669; Sanabria v American Home Assur. Co., 68 NY2d 866; Demopoulous v New York Cent. Mut. Fire Ins. Co., 280 AD2d 855; Flynn v Timms, 199 AD2d 873; Breed v Insurance Co. of N. Am., 46 NY2d 351; Caporino v Travelers Ins. Co., 62 NY2d 234; Butler v New York Cent. Mut. Fire Ins. Co., 274 AD2d 924; Moshiko, Inc. v Seiger & Smith, 137 AD2d 170, 72 NY2d 945; Speller v Sears, Roebuck & Co., 100 NY2d 38.) II. On the basis of its wording, Endorsement 5 is intended to provide coverage to vendors which have repaired, serviced or installed a Raymond Corporation product. (Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363; County of Columbia v Continental Ins. Co., 83 NY2d 618; Ruttenberg v Davidge Data Sys. Corp., 215 AD2d 191.) III. Based on the undisputed facts, Arbor Handling Services, Inc. was a vendor entitled to coverage under Endorsement 5. (Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347; New Hampshire Ins. Co. v Jefferson Ins. Co. of N.Y., 213 AD2d 325; Aetna Cas. & Sur. Co. v Ocean Acc. & Guar. Corp., Ltd., 386 F2d 413; Kmart Corp. v Fireman’s Fund Ins. Co., 88 F Supp 2d 767.) IV National Union Fire Insurance Company of Pittsburgh, Pa.’s “one label fits all” approach to vendor’s endorsements defies the wording and intent of Endorsement 5 as well as the case law. (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169; Basil Dev. Corp. v General Acc. Ins. Co., 89 NY2d 1057; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N.Y., 45 NY2d 551; RJC Realty Holding Corp. v Republic Franklin Ins. Co., 2 NY3d 158; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Hartford Fire Ins. Co. v St. Paul Surplus Lines Ins. Co., 280 F3d 744.) V The intent of Endorsement 5 cannot be altered by resorting to the terms of Raymond Corporation’s independent self-insured indemnification program. (Matter of Wallace v 600 Partners Co., 86 NY2d 543; Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594.) VI. National Union Fire Insurance Company of Pittsburgh, Pa. failed to meet its burden to enforce exclusion 1 (D). (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640.) VII. National Union Fire Insurance Company of Pittsburgh, Pa. improperly raises a claimed failure to preserve argument for the first time before this Court, and, in any event, the argument is meritless. (Olan v Farrell Lines, 64 NY2d 1092.)
   OPINION OF THE COURT

Read, J.

Plaintiff Raymond Corporation manufactures sideloader forklifts. Defendant National Union Fire Insurance Company of Pittsburgh, Pa. is Raymond’s primary liability insurer. At the time of the accident prompting this lawsuit, plaintiff TBS Group, Inc., formerly Arbor Handling Services, Inc., was one of Raymond’s vendors. The issue on this appeal is whether the vendor’s endorsement in the commercial general liability policy that National issued to Raymond covers personal injury claims caused by the vendor’s independent acts of negligence. For the reasons that follow, we conclude that the vendor’s endorsement only covers those claims stemming from a defective product.

I.

In 1994, Arbor sold Joseph T. Ryerson & Son, a steel distributor, two new Raymond sideloaders for installation in its Philadelphia facility. Because its new cantilever rack system was put into place months before the sideloaders’ anticipated delivery date, Ryerson asked Arbor to secure two rental units for its use in the meantime. Arbor had one rental sideloader in-house in its own fleet, and agreed to “support . . . as if it were its own” any second sideloader that Ryerson might locate either “internally or externally.”

Ryerson subsequently located a second Raymond sideloader in Chicago. Ryerson rented this unit, which was disassembled and shipped to its facility in Philadelphia. Arbor sent two service technicians to reassemble and adjust the sideloader, which was configured for use in a rail-guided system where the guide rails were both closer together and higher than at Ryerson’s facility.

In a rail-guided system, guide rollers are attached to the four corners of a sideloader and engage the rails, which are secured to the floor of the aisles between the racks. With proper adjustment, the guide rollers run against the parallel-facing rails with minimal clearance. A rail-guided system reduces the need for steering and thus the risk of injury to the operator, who does not have to place his head outside the vehicle to look at the wheels.

Arbor’s technicians did not properly fit the sideloader’s guide rollers within the rails at Ryerson’s facility. As a result, the sideloader tended to wobble from side to side and to jam. A Ryerson employee sustained serious head and brain injuries while operating it. The parties do not dispute that Arbor’s negligence—not any defect in Raymond’s product, the sideloader— caused this accident.

The injured worker sued Raymond and Arbor, among others, for damages. During discovery, one of the two Arbor technicians essentially admitted that he knew the sideloader was unsafe when he placed it into service. Arbor and Raymond settled the action prior to trial for $6 million, and Arbor’s primary liability insurer contributed $3 million toward the settlement. Raymond looked to National for the balance, contending that the vendor’s endorsement, which listed Arbor as an additional insured, provided coverage. National contested coverage. Ultimately, however, National and Raymond agreed to contribute $2.5 million and $500,000 respectively, while reserving their rights to resolve their coverage dispute in a separate action.

Raymond and Arbor brought this action seeking judgment against National for Raymond’s $500,000 contribution towards the settlement of the underlying action. National counterclaimed for judgment against Raymond in the amount of its $2.5 million contribution. After discovery, both parties moved for summary judgment. Supreme Court denied Raymond’s motion and granted National summary judgment, dismissing Raymond’s complaint and issuing judgment on National’s counterclaim. The court concluded that the vendor’s endorsement was limited to personal injury claims arising out of a product defect.

The Appellate Division, unlike Supreme Court, read the vendor’s endorsement as broad enough to cover claims arising out of the vendor’s negligence. Accordingly, the Appellate Division reversed, on the law, denied National’s motion, and granted Raymond summary judgment, declaring that Arbor is an additional insured under the policy. National appealed, and we now reverse.

II.

The vendor’s endorsement (Endorsement 5 [“Additional Insured—Vendors Schedule”]) in the policy states that,

“ ‘[s]ection III—Who is An Insured’ is amended to include as an Insured any person or organization (referred to below as ‘vendor’) shown in the schedule, but only with respect to ‘Bodily Injury’ or ‘Property Damage’ arising out of ‘Your Products’ [Raymond’s products] shown in the schedule which are distributed, sold, repaired, serviced, demonstrated, installed or rented to others in the regular course of the vendor[’]s business, subject to” several exclusions.

“In determining a dispute over insurance coverage, we first look to the language of the policy. We construe the policy in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221-222 [2002] [internal quotation marks and citations omitted]). We will “not disregard clear provisions which the insurers inserted in the policies and the insured accepted, and equitable considerations will not allow an extension of coverage beyond its fair intent and meaning in order to obviate objections which might have been foreseen and guarded against” (Caporino v Travelers Ins. Co., 62 NY2d 234, 239 [1984] [citation omitted]).

Here, the policy covers vendors, such as Arbor,

“only with respect to ‘Bodily Injury’ or ‘Property Damage’ arising out of [Raymond’s products] . . . which are distributed, sold, repaired, serviced, demonstrated, installed or rented to others in the regular course of the vendor[’]s business” (emphasis added).

We conclude that bodily injuries “arising out of [Raymond’s products]” means injuries arising out of defects in the products, rather than arising out of the vendor’s negligence. The modifying phrase, “which are distributed, sold, repaired, serviced, demonstrated, installed or rented to others in the regular course of the vendor[’]s business,” on which Raymond places so much emphasis, is most naturally read to describe Arbor’s activities with respect to Raymond’s products, not—as Raymond argues—to indemnify Arbor for its negligent performance of those activities.

This phrase reflects that Arbor is not only a vendor of Raymond’s products, but also repairs, services, demonstrates, installs and tents them. A vendor’s endorsement “ extend [s] coverage to distributors of [the vendor’s] product who may be sued for breach of warranty or for strict products liability should the product turn out to be defective or unreasonably dangerous and cause an injury” (Hartford Fire Ins. Co. v St. Paul Surplus Lines Ins. Co., 280 F3d 744, 745 [7th Cir 2002]). The vendor’s endorsement here also extends coverage for any defective-product suits arising out of all the activities in addition to sale and distribution which Arbor, in fact, performs with respect to Raymond’s products.

The dissent would discover coverage for vendor negligence in negative inferences from the policy’s exclusions, but “an exclusion from insurance coverage cannot create coverage” (Continental Cas. Co. v Pittsburgh Corning Corp., 917 F2d 297, 300 [7th Cir 1990]; see also Weedo v Stone-E-Brick, Inc., 81 NJ 233, 247, 405 A2d 788, 795 [1979] [it is a “basic principle that exclusion clauses subtract from coverage rather than grant it”]). In any event, the exclusions that trouble the dissenters are consistent with our reading of the endorsement.

Exclusion 1 (A) excludes coverage for claims “for which the Insured is obligated to pay ‘damages’ by reason of the assumption of liability in a contract or agreement.” For example, in order to obtain business or other favorable contract terms from a customer, Arbor might agree to assume liability in any product-defect suit brought against the customer by Arbor’s employee who installed or repaired Raymond’s product, or by the customer’s employee. By excluding coverage for “[a]ny Express Warranty unauthorized by [Raymond],” exclusion 1 (B) simply provides that the policy’s coverage for product defects is unavailable where the plaintiffs claim is based on an express warranty made by Arbor—for example, in a marketing or sales brochure—when this warranty was unauthorized by Raymond.

Exclusion 1 (D) excludes coverage for Arbor’s failure to make promised or normally-performed “inspections, adjustments, tests or servicing ... in connection with distribution or sale of the products.” Thus, this exclusion provides that, while defective-product injuries generally fall within the scope of the endorsement, there is no such coverage if Arbor fails to maintain the product. Contrary to the view expressed by the dissent, this exclusion makes sense because neglect to maintain a product properly may eventually cause it to become defective, or so it might be alleged in a product-defect lawsuit.

Under exclusion 1 (E), the coverage afforded Arbor does not apply to ‘ ‘ [d] emonstration, installation, servicing or repair operations except such operations performed by the Vendor” (emphasis added). Thus, there is no coverage where the defective product causing the injury was being demonstrated, installed, serviced, repaired or rented by someone other than Arbor, Raymond’s vendor. This exclusion ensures that Raymond—rather than a nonvendor third party—created the allegedly injury-causing product defect. Exclusions 1 (D) and 1 (E) both supply incentives for Arbor to maintain and demonstrate Raymond’s products itself rather than farm out these activities to third parties who may lack Arbor’s expertise or knowledge.

The vendor’s endorsement has its genesis in products liability law. Accordingly, “[s]uch an endorsement covers the vendors’ liability arising out of their role in passing the manufacturer’s product on to customers, but does not cover vendors for their own negligence. Coverage under the vendor’s endorsement is limited to injuries arising out of a defect in the manufacturer’s product” (9 Couch on Insurance 3d § 130:3 [1997]).

As the Seventh Circuit Court of Appeals elaborated in Hartford,

“the purpose of a vendor’s endorsement is to protect the vendor (i.e., dealer or other distributor) against the expense of being dragged as an additional defendant into a lawsuit arising from a defect in a product that it distributes. It makes sense for the manufacturer to buy the insurance, as he has a better sense of the risk that there will be suits complaining about defects in his products. This assumes, however, that the vendor’s role in the distribution of the product is passive. The manufacturer would be unlikely to insure the vendor against defects introduced by the vendor himself, . . . the risk of those defects being better known to the vendor than to the manufacturer. ...
“Beyond that, the vendor’s endorsement is inapplicable if the vendor, whether by participating in the creation of the product or by altering or repairing it, may be responsible for the alleged defect out of which the products liability suit arises. That at least is the majority view” (280 F3d at 746-747 [citations omitted and emphasis added]).

The court further remarked upon the “improbability of supposing that the manufacturer’s insurer intends to protect others against the risks that the others create” (id. at 747), and noted the

“further consideration . . . that vendor’s endorsement policies are cheap add-ons to products liability policies . . . and their cheapness makes the most sense if they’re limited to the case in which the vendor, being completely passive in relation to the harm giving rise to liability rather than the active author of the harm, would be entitled to indemnity from the manufacturer in the event that he (the vendor) was sued and held liable and made to pay damages. For in such a case the vendor’s endorsement would be unlikely to impose a big loss on the insurance company even if the vendor was hit with a damages judgment” (id. [citation omitted]).

In sum, the vendor’s endorsement in this case covers Arbor for defective-product suits arising out of its distribution, sale, repair, servicing, demonstration or rental of Raymond’s products. Nothing in the wording of the endorsement (or the exclusions, for that matter) suggests that bodily injuries “arising out of’ Raymond’s products encompasses the vendor’s independent acts of negligence. Our interpretation of the endorsement follows its language and comports with the traditional majority view, the origins of the vendor’s endorsement as an outgrowth of products liability law, and common and economic sense.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

R.S. Smith, J.

(dissenting). I agree that the “purpose of a vendor’s endorsement,” as it is described in Hartford Fire Ins. Co. v St. Paul Surplus Lines Ins. Co. (280 F3d 744, 746 [7th Cir 2002]) and elsewhere, would be served by reading the endorsement in this case the way the majority does. But I cannot reconcile that reading with the language of the endorsement, and I therefore dissent.

The endorsement protects vendors like Arbor against claims for “ ‘Bodily Injury’ or ‘Property Damage’ arising out of ‘Your [Raymond’s] Products’ . . . which are distributed, sold, repaired, serviced, demonstrated, installed or rented to others in the regular course of the vendors [sic] business.” The majority reads the words “arising out of ‘Your Products’ ” to mean “arising out of defects in ‘Your Products’ ” (majority op at 162). This reading of the phrase is not an impossible one, though it departs from our usual practice of resolving ambiguities in favor of the insured (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]); I might accept the majority’s reading if the rest of the vendor’s endorsement were consistent with it. When I read the exclusions from the vendor’s endorsement, however, I cannot believe that the author of the document intended only actions arising out of product defects to be within the endorsement’s coverage. If that was the author’s intention, the exclusions are largely unnecessary.

The vendor’s endorsement contains six exclusions, of which four are rendered pointless by the majority’s interpretation. Those four provide:

“The Coverage afforded the Vendor does not apply to:
“A. ‘Bodily Injury’ or ‘Property Damage’ for which the Insured is obligated to pay ‘damages’ by reason of the assumption of liability in a contract or agreement;
“This exclusion does not apply to liability for ‘damage’ that the ‘Insured’ would have in absence of the contract or agreement;
“B. Any Express Warranty unauthorized by ‘YOU’;
“D. Any failure to make such inspections, adjustments, tests or servicing as the Vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with distribution or sale of the products;
“E. Demonstration, installation, servicing or repair operations except such operations performed by the Vendor . . . .”

If, as the majority says, the vendor’s endorsement applies only in cases arising out of product defects, why did the author bother to write exclusion A, for cases where the claim arises not out of a product defect, but solely out of a “contract or agreement”? Or exclusion B, for cases arising not out of product defects, but out of express warranties? Or exclusion D, for cases arising from certain failures by the vendor? Exclusion D is a very strange provision if all failures by the vendor are outside the endorsement’s coverage to begin with. Perhaps most compelling, exclusion E, which denies coverage for “ [demonstration, installation, servicing or repair operations except such operations performed by the Vendor,” necessarily implies that coverage does exist for demonstrations and the like that are performed by the vendor.

I find the majority’s attempts to give these exclusions some meaning that is consistent with its interpretation of the endorsement completely unpersuasive. It is far-fetched to think that exclusion A was intended to cover the very rare case where a manufacturer would not be liable for a product defect but for its assumption of liability in a contract; I am impressed that the majority can come up with a single example—an agreement to waive workers’ compensation protection (majority op at 163)— but I cannot believe that is what the author of the endorsement had in mind. The majority simply restates exclusion B, mentioning that express warranties might be contained “in a marketing or sales brochure,” but making no attempt to explain why claims based on such warranties would be excluded from an endorsement that did not cover them in the first place (id.). I think the majority is simply wrong in saying that exclusion D “makes sense because neglect to maintain a product properly may eventually cause it to become defective” (id. at 164); that is not what “product defect” means (see Black’s Law Dictionary 450 [8th ed 2004] [“An imperfection in a product that has a manufacturing defect or design defect, or is faulty because of inadequate instructions or warnings”]). The majority is no doubt right that a product defect caused by poor maintenance, or any other imaginable piece of illogie, “might be alleged in a product-defect lawsuit” (majority op at 164), but it is highly unlikely that exclusion D was written to provide against that possibility. The majority’s explanation of exclusion E is that it is designed to insure “that Raymond—rather than a nonvendor third party—created the allegedly injury-causing product defect” (id.). But defects are not product defects unless the manufacturer “created” them, and if the endorsement were limited to claims based on product defects, there would be no reason either to exclude any acts by vendors or to distinguish, as exclusion E does, between third-party vendors and Arbor.

Thus, I read the vendor’s endorsement here as applicable to a case, like this one, arising out of an injury caused by a Raymond product, whether the product was defective or not. Cases from other jurisdictions support this reading. Pep Boys v Cigna Indent. Ins. Co. of N. Am. (300 NJ Super 245, 692 A2d 546 [1997]) and Sportmart, Inc. v Daisy Mfg. Co. (268 111 App 3d 974, 645 NE2d 360 [1994]) are indistinguishable from this case. Both involved vendors that negligently sold products to minors; in neither case was there any claim that there was anything wrong with the products themselves. Both cases involved policy language that, to the extent it is quoted in the decisions, was word-for-word identical to the language at issue here. In both cases, the vendor was held to be covered by the policy.

The majority relies on Hartford but, while Judge Posner’s opinion contains general remarks about vendor’s endorsements that are consistent with the result thé majority reaches, Hartford was quite a different case. The vendor there had not only sold the product in question—a diet pill—but had “designed the contents of the label, including the warnings” (280 F3d at 746). The injured person claimed that the warnings were inadequate {id.). The vendor’s endorsement contained “an express exception for cases in which a claim of products liability is based on the labeling or relabeling of the product by the vendor” {id. at 747)—so that the result in Hartford seems to have been compelled by clear policy language. Nor do any of the cases cited by the Hartford court for what it called the “majority view” {id.) turn on an interpretation of language similar to that at issue here.

The majority also relies on Couch’s treatise, which says that coverage under vendor’s endorsements “is limited to injuries arising out of a defect in the manufacturer’s product” (9 Couch on Insurance 3d § 130:3 [1997], quoted at majority op at 164). But the treatise does not offer this comment as an interpretation of any particular policy language. The treatise, I believe, must be read as describing what vendor’s endorsements often say, or what its author believes they ought to say. This one does not say it.

I therefore conclude that the Appellate Division correctly held that the claim against Arbor was within the coverage provided by the vendor’s endorsement, and I would affirm the Appellate Division’s order.

Chief Judge Kaye and Judges G.B. Smith and Ciparick concur with Judge Read; Judge R.S. Smith dissents and votes to affirm in a separate opinion in which Judges Rosenblatt and Graffeo concur.

Order reversed, etc.

      . Sideloader forklifts have forks on the side, and they run on rail systems in the aisles of warehouses.

      . Cantilever racks have arms cantilevered off a vertical column, and loads are placed either directly on the arms or on shelves supported hy them. Their long, unobstructed shelves with no uprights are well suited for storage of long and varied loads.

      . When asked what he meant by this representation, Arbor’s sales manager explained that Arbor typically would not service a competitor’s unit installed in a customer’s facility; however, “because of the unusual circumstances, with [Arbor] not being able to acquire a unit, if [Ryerson] . . . acquire[d] the unit, [Arbor] would fix the unit, should it break down, and . . . provide parts. And[ ] not tell [Ryerson] to fly someone in from Chicago to fix the unit that they rented from someone else.”


author: R.S. Smith, J.

text:
    [833 NE2d 252, 800 NYS2d 109]
    In the Matter of Jake Bello, Ph.D., et al., Respondents, v Roswell Park Cancer Institute et al., Appellants.
    Argued June 1, 2005;
    decided June 29, 2005

      POINTS OF COUNSEL

      Eliot Spitzer, Attorney General, Albany (Robert M. Goldfarb, Caitlin J. Halligan, Daniel Smirlock and Wayne L. Benjamin of counsel), for appellants.
    I. A reinstated state civil service employee is not entitled to predecision interest on a back pay award recovered under Civil Service Law § 77 as damages incidental to a judgment in a CPLR article 78 proceeding annulling his or her termination from employment. (Matter of Meloni v Goord, 267 AD2d 977, 94 NY2d 944; Matter of Transit Cas. Co., 223 AD2d 488; Rust v Reyer, 91 NY2d 355; Morris v Snappy Car Rental, 84 NY2d 21; Juarez v Wavecrest Mgt. Team, 88 NY2d 628; Brown v State of New York, 89 NY2d 172; Sharapata v Town of Islip, 56 NY2d 332; Krohn v New York City Police Dept., 2 NY3d 329; Matter of Lehigh Val. R.R. Co. v Joseph, 281 App Div 57, 305 NY 853; Library of Congress v Shaw, 478 US 310.) II. Any change in the law to authorize predecision interest on such awards must be effected legislatively. (Rupert v Sellers, 50 NY2d 881, 449 US 901; Purcell v Long Is. Daily Press Publ. Co., 9 NY2d 255.)

      Offermann, Cassano, Greco, Slisz & Adams, LLP, Buffalo {Josephine A. Greco and Kevin P. Wicka of counsel), for respondents.
    The Appellate Division properly affirmed the trial court’s granting of predecision interest on the respective awards of back pay. (Matter of Della Vecchia v Town of N. Hempstead, 207 AD2d 483; Matter of Boylan v Town of Yorktown, 179 AD2d 753; Matter of Sharkey v Police Dept. of Town of S. Hampton, 179 AD2d 655; Matter of Kohler v Board of Educ., S. Huntington Union Free School Dist., 142 AD2d 676; Buric v Safir, 4 AD3d 160; Harvey v State of New York, 281 AD2d 846; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Matter of Lombardi v Supreme Ct. of State of N.Y., 20 NY2d 690; Matter of Caruthers, 158 NY 131; Racine v Morris, 201 NY 240.)
   OPINION OF THE COURT

R.S. Smith, J.

We hold that an award of back pay pursuant to Civil Service Law § 77 may not include predecision interest.

Facts and Procedural History

Petitioners are research scientists who were laid off by the Roswell Park Cancer Institute (RPCI), a state institute under the management and control of the Department of Health. They brought a CPLR article 78 proceeding against RPCI, the Department, and several other state agencies and officials (collectively, the State), challenging the layoffs. Supreme Court held that the layoffs were unlawful and that petitioners were entitled to back pay with interest on each installment “from the date it was incurred, if such designation is possible or from a single reasonable intermediate date.”

The Appellate Division modified Supreme Court’s judgment in a way not relevant here, and otherwise affirmed. The State appeals, pursuant to leave granted by this Court, challenging only the predecision interest award. We now reverse the Appellate Division’s order insofar as it is appealed from.

Discussion

Prejudgment or predecision interest generally was not available at common law (see Monessen Southwestern R. Co. v Morgan, 486 US 330, 337 [1988]). Before the adoption of the Civil Practice Law and Rules, interest was allowed in New York in certain kinds of cases, sometimes without statutory authority (see former Civ Prac Act § 480; Flamm v Noble, 296 NY 262 [1947]; Wilson v City of Troy, 135 NY 96 [1892]), hut today interest is purely a creature of statute (see CPLR 5001; Matter of Meloni v Goord, 267 AD2d 977, 978 [4th Dept 1999]). The controlling statute in this case is Civil Service Law § 77, which provides:

“Any officer or employee who is removed from a position in the service of the state or of any civil division thereof in violation of the provisions of this chapter, and who thereafter is restored to such position by order of the supreme court, shall be entitled to receive and shall receive from the state or such civil division, as the case may he, the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal, from the date of such unlawful removal to the date of such restoration, less the amount of any unemployment insurance benefits he may have received during such period. Such officer or employee shall be entitled to a court order to enforce the payment of such salary or compensation.”

The State argues that interest is unavailable in this case because section 77 makes no mention of it. Petitioners argue that a right to interest is implicit in the statute’s reference to “compensation”; they say that a claimant who is deprived for a period of time of money that he or she is entitled to cannot be fully compensated unless interest is awarded. We agree with the State, and reject petitioners’ argument.

The statute does not just create a general right to “compensation”; it is specific about what a claimant “shall be entitled to receive.” It speaks of “salary or compensation”—indicating that “compensation” refers to bonuses or other nonsalary forms of payment. It provides for the deduction of unemployment insurance benefits. Until 1985, it also provided for deduction of “compensation which [the reinstated employee] may have earned in any other employment or occupation” (Civil Service Law former § 77), thus adopting the common-law “mitigation of damages” rule. When the statute was amended to eliminate the mitigation requirement, the amendment did not contain any provision for interest. We conclude that a legislature giving such careful attention to the components of a back pay award would have added the words “with interest” if it had intended interest to be awarded.

In interpreting section 77, we give some weight to the fact that it provides for recoveries against “the state” as well as “any civil division thereof.” To the extent that it allows recovery against the State, the statute waives the State’s sovereign immunity. Such waivers are to be strictly construed, “waiver of immunity by inference being disfavored.” (Sharapata v Town of Islip, 56 NY2d 332, 336 [1982]; see Krohn v New York City Police Dept., 2 NY3d 329, 338 [2004].) This rule reinforces our reluctance to find an implicit provision for interest in a statute that makes no mention of it.

Petitioners argue that it is unfair to deny them interest on money that has been wrongly withheld from them. There is force in this argument, but we may not rewrite the statute to achieve more “fairness” than the Legislature chose to enact. The Legislature did not have to permit recovery of back pay at all; nor did it have to eliminate the mitigation requirement—a feature of the statute that will, in some cases, give wrongly terminated employees a substantial windfall. Having allowed for back pay, and having eliminated the requirement of mitigation, the Legislature did no more.

Finally, petitioners argue that they are entitled to interest under CPLR 5001 (a), which says: “Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property.” We find this argument to be without merit. Petitioners are not suing for breach of contract or for injury to or interference with any property. They are suing to enforce the right to back pay given to them by Civil Service Law § 77, and that statute does not provide for predecision interest.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to Supreme Court with directions to delete the award of predecision interest.

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

Order, insofar as appealed from, reversed, etc.


author: Chief Judge Kaye. R.S. Smith, J.

text:
    [833 NE2d 261, 800 NYS2d 118]
    David L. Thornton et al., Respondents-Appellants, v Shlomo Baron et al., Defendants, and 390 West End Associates, L.L.C., Appellant-Respondent.
    Argued June 7, 2005;
    decided June 30, 2005

      POINTS OF COUNSEL

      Belkin Burden Wenig & Goldman, LLP, New York City (Magda L. Cruz, Sherwin Belkin, Howard Wenig and Jay H. Berg of counsel), for appellant-respondent.
    I. The legal regulated rent for the new rent stabilized prime lease to the subtenants was properly calculated in accordance with “the four year rule.” (Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144; Myers v Frankel, 292 AD2d 575; Zafra v Pilkes, 245 AD2d 218; Matter of Silver v Lynch, 283 AD2d 213; Matter of McCarthy v New York State Div. of Hous. & Community Renewal, 290 AD2d 313; Matter of Sessler v New York State Div. of Hous. & Community Renewal, 282 AD2d 262; Matter of Hatanaka v Lynch, 304 AD2d 325; Matter of Kandemir v New York State Div. of Hous. & Community Renewal, 4 AD3d 122; Matter of AVJ Realty Corp. v New York State Div. of Hous. & Community Renewal, 8 AD3d 14; Matter of Brinckerhoff v New York State Div. of Hous. & Community Renewal, 275 AD2d 622, 96 NY2d 712.) II. The uncodified “default formula” has no applicability to this case. (Myers v Frankel, 184 Misc 2d 608; Matter of Greenthal Co. v State Div. of Hous. & Community Renewal, 126 Misc 2d 795; Matter of Miller v Division of Hous. & Community Renewal, 289 AD2d 20; Matter of Spariosu v New York State Div. of Hous. & Community Renewal, 285 AD2d 649; Matter of Century Tower Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 83 NY2d 819; Matter of Lavanant v State Div. of Hous. & Community Renewal, 148 AD2d 185; Matter of Clear Holding Co. v State Div. of Hous. & Community Renewal, 268 AD2d 430.) III. If a “default formula” is to apply, then the Court should adopt the codified default formula at Rent Stabilization Code (9 NYCRR) § 2522.6 (b) and remand the matter to the Division of Housing and Community Renewal. (Matter of Cabrini Realty v New York State Div. of Hous. & Com

      munity Renewal, 6 AD3d 280; 390 W. End Assoc. v Zouker, 302 AD2d 227.)

      Vernon & Ginsburg, LLP, New York City (Darryl M. Vernon and Michael T. Yonker of counsel), for respondents-appellants.
    I. The prospective rent should be set as of the commencement of the void illusory lease. (Simcuski v Saeli, 44 NY2d 442; General Stencils v Chiappa, 18 NY2d 125; Glus v Brooklyn Eastern Dist. Terminal, 359 US 231; 390 W. End Ave. Assoc. v Youngstein, 221 AD2d 292; Matter of Brinckerhoff v New York State Div. of Hous. & Community Renewal, 275 AD2d 622; Matter of Sessler v New York State Div. of Hous. & Community Renewal, 282 AD2d 262; 390 W. End Assoc. v Baron, 274 AD2d 330; Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219; Brock v Bua, 83 AD2d 61; Buran v Coupal, 87 NY2d 173.) II. Because of 390 West End Associates, L.L.C.’s evasion of rent regulation, and to deter similar attempts by other landlords, the prospective rent should be set by the default formula articulated below or, alternatively, at the last lawful rent. (390 W. End Assoc. v Harel, 298 AD2d 11; Matter of Cabrini Realty v New York State Div. of Hous. & Community Renewal, 6 AD3d 280.) III. If this Court does not set the rent as of the inception of the void lease, then the lower courts’ application of the default formula should he affirmed. (390 W. End Assoc. v Baron, 274 AD2d 330; Diocese of Buffalo v McCarthy, 91 AD2d 213; Rivertower Assoc. v Chalfen, 167 AD2d 309; Myers v Frankel, 292 AD2d 575; Matter of Sessler v New York State Div. of Hous. & Community Renewal, 282 AD2d 262; Matter of Kandemir v New York State Div. of Hous. & Community Renewal, 4 AD3d 122; Matter of Muller v New York State Div. of Hous. & Community Renewal, 263 AD2d 296; Matter of Pechock v New York State Div. of Hous. & Community Renewal, 253 AD2d 655; Matter of Hatanaka v Lynch, 304 AD2d 325; Matter of McCarthy v New York State Div. of Hous. & Community Renewal, 290 AD2d 313.)
   OPINION OF THE COURT

Chief Judge Kaye.

We are asked in this appeal to establish the legal regulated rent for an apartment improperly removed from rent stabilization.

Defendant 390 West End Associates is the owner of the Apthorp, a residential apartment building on the Upper West Side of Manhattan. In the early 1990s, the owner hit upon a scheme to remove a number of its apartments from the protect tions of rent regulation by taking advantage of the statutory exemption for nonprimary residences (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504 [a] [1] [f]). Having included in its leases a provision that the tenants would not use the apartments as primary residences, 390 offered at least six such leases charging rent far in excess of the legal stabilized rent. Several of these apartments were immediately subleased to third parties who would also agree not to primarily reside in the apartment. In nearly every case, however, either the tenant or subtenant—despite representations to the contrary—used the apartment as a primary residence.

In December 1992, defendant Shlomo Baron entered into such a lease. Under its terms, Baron agreed to rent a four-room apartment—for which the previous tenant had paid a stabilized rent of $507.85 per month—for an initial monthly rent of $2,400, with increases beginning after three years. Baron then immediately subleased the apartment to Cynthia and David Thornton for $3,250 per month, increasing to $3,500 after two years and then to $3,750 after three.

Baron was represented in these transactions by his daughter and son-in-law, Zipora and Bernard Weber, themselves rent-stabilized tenants at the Apthorp. Indeed, the Webers acted as agents for at least two other tenants—one of them Baron’s son—who similarly conspired with the owner to circumvent rent stabilization by leasing apartments as nonprimary residences above the regulated rent, so as then to sublease the apartments at even higher rents. In this way, both the owner and the prime tenants earned profits far above what the Rent Stabilization Law allowed.

In an effort to obtain judicial sanction of these arrangements, in 1993 the owner sought and won declaratory judgments that these apartments, as nonprimary residences, were exempt from rent stabilization. In each case the owner, as plaintiff, filed an action against its tenant (named as defendant) seeking declaratory relief. Filing no answer, the purported defendant instead quickly entered into a stipulation with the plaintiff agreeing to the entry of a consent judgment upholding the terms of the parties’ bargain. Although no justiciable controversy actually existed, the parties thus endeavored to use the courts to achieve their joint purpose of freeing the apartments from regulation. Further, having obtained judicial endorsement of the leases, the owner then filed annual rent registration statements setting forth the agreed-upon rents and listing the apartments as temporarily exempt from rent stabilization (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-517 [a]).

A lease provision purporting to exempt an apartment from rent regulation in exchange for an agreement not to use the apartment as a primary residence is against public policy and void (see Draper v Georgia Props., 94 NY2d 809 [1999]; Rent Stabilization Code [9 NYCRR] § 2525.3 [b]; § 2520.13). In 1999, the owner moved to vacate the Baron consent judgment and restore the subject apartment to rent stabilization. Although the parties differ with respect to 390’s motive for bringing this motion—the owner claims that it sought simply to comply with the law, while the subtenant ascribes more nefarious purposes— the judgment was ultimately vacated (see 390 W. End Assoc. v Baron, 274 AD2d 330 [1st Dept 2000]).

Meanwhile, in 1996, the Thorntons commenced the present action against Baron and the Webers, claiming rent overcharges under the Rent Stabilization Law. Although the Thorntons made false written statements to the contrary at the time they signed their sublease, the record reveals that they have used the subject apartment as their primary residence since the commencement of their subtenancy. Supreme Court thus determined that Baron’s tenancy was illusory and that the Thorntons were the actual tenants of the apartment, which should never have been removed from rent stabilization.

In November 2000, the Thorntons amended their complaint to name the owner as a defendant, adding a cause of action to compel the owner to offer them a rent-stabilized lease at $507.85 per month—the regulated rent immediately preceding Baron’s illusory tenancy. In response, the owner conceded that the apartment was subject to rent stabilization, but contended that the legal rent was to be calculated from a base date rent of $2,496— the rent reflected in the annual registration statement filed in 1996, four years before plaintiffs filed their amended complaint. Supreme Court, however, adopted neither view. Rather, the court ruled that the legal rent must be fixed based on the default formula used by the Division of Housing and Community Renewal (DHCR) to set the base date rent in overcharge cases where no reliable rent records are available. The Appellate Division split over this question, with the majority endorsing Supreme Court’s methodology and the dissent accepting plaintiffs’ view that the legal regulated rent should be that in effect at the commencement of the illegal Baron lease in 1992 ($507.85). We now affirm.

Only one question is before us: How is the legal regulated rent of the apartment to be established? As the courts below recognized, the Rent Regulation Reform Act of 1997 (RRRA) (L 1997, ch 116) clarified and reinforced the four-year statute of limitations applicable to rent overcharge claims (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a]) by limiting examination of the rental history of housing accommodations prior to the four-year period preceding the filing of an overcharge complaint (see Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]; L 1997, ch 116, § 33). “Where the amount of rent set forth in the annual rent registration statement filed four years prior to the most recent registration statement is not challenged within four years of its filing, neither such rent nor service of any registration shall be subject to challenge at any time thereafter” (Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a]).

Here, plaintiffs filed their amended complaint—which named 390 as a defendant for the first time—in November 2000. This is not a situation where an order issued prior to the limitations period imposed a continuing obligation on a landlord to reduce rent, such that the statute of limitations would be no defense to an action based on a breach of that duty occurring within the limitations period. Thus, the apartment’s rental history before November 1996 may not be examined, and the $507.85 rent in effect in 1992 is of no relevance. That being so, the owner contends that the legal regulated rent should be established by simple reference to the rental history as of November 1996, by which time an annual registration statement had been filed listing the $2,496 rent charged to Baron. We disagree.

Reflecting an attempt to circumvent the Rent Stabilization Law in violation of the public policy of New York, the Baron lease was void at its inception. Further, because the rent it purported to establish was therefore illegal, the 1996 rent registration statement listing this illegal rent was also a nullity. Under those circumstances, we agree with Supreme Court and the Appellate Division majority that the default formula used by DHCR to set the rent where no reliable rent records are available was the appropriate vehicle for fixing the base date rent here.

The dissent would ignore defendants’ fraudulent conduct and fix the rent at an amount likely soon to result in the apartment’s permanent removal from rent stabilization, thereby rewarding the owner’s wrongdoing. Under the dissent’s rule, a landlord whose fraud remains undetected for four years—however willful or egregious the violation—would, simply by virtue of having filed a registration statement, transform an illegal rent into a lawful assessment that would form the basis for all future rent increases. Indeed, an unscrupulous landlord in collusion with a tenant could register a wholly fictitious, exorbitant rent and, as long as the fraud is not discovered for four years, render that rent unchallengeable. That surely was not the intention of the Legislature when it enacted the RRRA. Its purpose was to alleviate the burden on honest landlords to retain rent records indefinitely (see Gilman, 99 NY2d at 149), not to immunize dishonest ones from compliance with the law.

Although the subtenants who brought the overcharge complaint themselves had unclean hands, the principle we establish here will apply equally to innocent renters looking to succeed illusory tenancies. The dissent’s contrary rule would bring about the rapid removal of many apartments from rent stabilization—at least six such illusory leases have come to light in the Apthorp alone—undermining the statute’s very purpose of preserving a stock of affordable housing. We cannot agree that the Legislature intended such a result.

We reach this conclusion not “so that one wrongdoer may benefit at the expense of another” (dissenting op at 183), but so that no wrongdoer may benefit at the expense of the public.

Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative.

R.S. Smith, J.

(dissenting). The Rent Regulation Reform Act of 1997 amended the Rent Stabilization Law of 1969 to provide: “Where the amount of rent set forth in the annual rent registration statement filed four years prior to the most recent registration statement is not challenged within four years of its filing, neither such rent nor service of any registration shall be subject to challenge at any time thereafter” (Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516 [a]). Today, the majority upholds a challenge to the amount of rent set forth in a registration statement, although the challenge was brought more than four years after the registration statement was filed. If I had written the statute, I would now be wondering what words I could possibly have used to make my meaning clearer.

The majority tries to reconcile its holding with the statute on the theory that the lease containing the challenged rent (entered into more than seven years before the challenge was brought) was in violation of public policy and “void at its inception” (majority op at 181). Therefore, the majority reasons, “the rent. . . was . . . illegal, [and] the 1996 rent registration statement listing this illegal rent was also a nullity” (majority op at 181). This approach destroys the effectiveness of the four-year time limitation, which has no point unless it protects illegal rents against challenge. If a rent is not illegal, a challenge will fail anyway and the four-year limit is unnecessary.

Plainly, the true basis for the majority’s holding is the outrageousness of the landlord’s conduct in this case. This is apparent from the torrent of adjectives—“fraudulent,” “willful,” “egregious,” “unscrupulous,” “fictitious,” “exorbitant,” “dishonest”—that the majority finds room for in a single paragraph (majority op at 181). Every one of the adjectives is deserved, but none of them justifies ignoring the statute. Statutes of limitations and similar enactments must, by their very nature, sometimes protect outrageous conduct. Many wrongs greater than the one done in this case have gone unremedied because the victim did not seek a remedy promptly enough. Here, the subtenants’ remedy was to challenge the rent established by the 1992 lease within four years, and nothing prevented them from doing so. If the landlord had somehow tricked them into delaying their lawsuit, the landlord might be equitably estopped from relying on the lapse of time, but nothing of that sort happened.

Indeed, the subtenants who brought this case are less the landlord’s victims than its coconspirators. The subtenants agreed to pay some six times the legal rent for the apartment in question, and to make the false representation that it was not their primary residence, for the obvious reason that they could not get this highly desirable apartment any other way. The real victim of the conspiracy was the unknown person who, but for the misconduct of all the parties to this case, could have rented an apartment in the Apthorp in 1992 for a bit more than $500 per month.

I acknowledge that the subtenants, despite their unclean hands, were entitled to challenge the unlawful rent that they agreed to pay—but they had four years to do so and no more. I see no good reason for the majority’s decision to ignore the four-year limitation so that one wrongdoer may benefit at the expense of another. I would therefore modify the Appellate Division’s order and would hold that the $2,496 rent set forth in the 1996 registration statement may not be challenged.

Judges G.B. Smith, Ciparick, Rosenblatt and Graffeo concur with Chief Judge Kaye; Judge R.S. Smith dissents in a separate opinion in which Judge Read concurs.

Order affirmed, etc.

      . This formula uses the lowest rent charged for a rent-stabilized apartment with the same number of rooms in the same building on the relevant base date.

      . We reject plaintiffs’ contention that their amended complaint against 390 should relate back to the original complaint filed against Baron and the Webers in October 1996, because defendants were not united in interest within the meaning of CPLR 203 (b) (see Buran v Coupal, 87 NY2d 173 [1995]).

      . Because defendants’ fraudulent scheme to evade the Rent Stabilization Law did not induce plaintiffs to refrain from filing a timely action, the owner is not equitably estopped from invoking the statute of limitations (see Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]).

      . Once the legal regulated rent reaches $2,000, an apartment will be removed altogether from rent stabilization if either the apartment becomes vacant (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504.2 [a]) or the tenants’ total annual income exceeds $175,000 in each of the two preceding calendar years (see Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-504.3 [b]).

      . Although 390 proposes that we adopt the default formula of Rent Stabilization Code (9 NYCRR) § 2522.6 (b), that provision by its plain terms applies only to judicial sales, bankruptcy proceedings and mortgage foreclosure actions.


text:
    [833 NE2d 259, 800 NYS2d 116]
    Frank B. Iacovangelo, as Administrator of the Estate of Goldie Gilchrist, Also Known as Goldy Bond, Deceased, Appellant, v David Shepherd et al., Respondents.
    Argued June 7, 2005;
    decided June 30, 2005

      POINTS OF COUNSEL

      Gallo & lacovangelo, LLP, Rochester (Joseph B. Rizzo of counsel), for appellant.
    Defendants waived any defense sounding in lack of personal jurisdiction. (Addesso v Shemtob, 70 NY2d 689; DeFilippis v Perez, 148 AD2d 490; Sanchez v L.L.H. Recycled Aggregates, 147 Misc 2d 41; Urena v NYNEX, Inc., 223 AD2d 442.)

      Bivona & Cohen, PC., New York City (Michael P. Lagnado, Harold J. Derschowitz and Ian H. Kaufman of counsel), for respondents.
    Since defendants did not move for CPLR 3211 dismissal prior to interposing their amended answer as of right, the court’s lack of personal jurisdiction was properly raised as an affirmative defense in their subsequent answer. (Abrams v Community Servs., 76 AD2d 765; Addesso v Shemtob, 70 NY2d 689; DeFilippis v Perez, 148 AD2d 490; Sanchez v L.L.H. Recycled Aggregates, 147 Misc 2d 41.)
   OPINION OF THE COURT

R.S. Smith, J.

We hold that a defendant who omits from an answer a defense based on lack of personal jurisdiction has not waived the defense if the defendant corrects the omission before the time to amend the answer without leave of court has expired.

Facts and Procedural History

Goldie Gilchrist, a New York resident, was walking on a highway in Georgia when she was hit by a truck owned by David Shepherd and driven by Thomas Rouse. Shepherd and Rouse are residents of Georgia. Gilchrist died several months later, and her administrator sued Shepherd and Rouse in New York, alleging that both of them negligently injured Gilchrist and caused her death, and also that Shepherd was vicariously liable for Rouse’s negligence.

On November 8, 2002, defendants served an answer to the complaint that did not challenge the court’s jurisdiction over them. Plaintiff served an amended complaint dated November 14, 2002. On November 21, 2002, 13 days after serving the original answer, defendants served a “Verified Amended Answer” alleging that “the Court lacks jurisdiction over the persons of the answering defendants.”

Defendants moved to dismiss the action for lack of personal jurisdiction. Plaintiff, opposing the motion, argued that defendants had waived this defense by failing to assert it in their original answer. Supreme Court granted the motion, holding that “the defendants did not waive their jurisdictional defense.” The Appellate Division affirmed, as do we.

Discussion

CPLR 3211 (a) (8) permits a defendant to move to dismiss a complaint on the ground that “the court has not jurisdiction of the person of the defendant.” CPLR 3211 (e) provides in relevant part:

“An objection based upon a ground specified in paragraphs eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection or if, having made no objection under subdivision (a), he does not raise such objection in the responsive pleading.”

In Addesso v Shemtob (70 NY2d 689 [1987]), we applied CPLR 3211 (e) in a case where defendants had moved to dismiss the complaint without raising a jurisdictional defense in the motion. We found “no reason to depart from the statute’s plain language” (id. at 690), and held that the defense was waived. Here, we face an issue on which CPLR 3211 (e) is not explicit: whether a waiver occurs when a party does not raise the defense in his or her first “responsive pleading,” but does raise it in a pleading permitted by CPLR 3025 (a), which says that “[a] party may amend his pleading once without leave of court within twenty days after its service . . .

This issue was decided by Supreme Court in Solarino v Noble (55 Misc 2d 429 [Sup Ct. NY County 1967, Spiegel, J.]), a case in which a defendant amended his answer two days after serving it to add a defense of lack of personal jurisdiction. The court held the defense was not waived. Justice Spiegel referred to “ ‘the general rule that an amendment relates back to the service of the original pleading’ ” (id. at 430, quoting Blatz v Benschine, 53 Misc 2d 352, 354 [Sup Ct. Queens County 1967]), to the absence of prejudice to the plaintiff, and to “the general principle that cases should be determined on the merits, rather than on the basis of the procedures followed” (id.). Several Appellate Division decisions also support the idea that a pleading amended as of right “relates back to and speaks as of the time of the filing of” the original pleading (Abrams v Community Servs., Inc., 76 AD2d 765, 766 [1st Dept 1980]; see also Naccarato v Kot, 124 AD2d 365, 365 [3d Dept 1986, Levine, J.] [distinguishing Solarino where the amendment is not “taken as of right” but is by leave of court]; Boulay v Olympic Flame, Inc., 165 AD2d 191 [3d Dept 1991] [same]).

In DeFilippis v Perez (148 AD2d 490, 491 [2d Dept 1989]), the Appellate Division referred to Solarino and similar decisions as “cases decided prior to the Addesso . . . decision” and reversed a ruling that it said “erroneously” relied on them. These comments were not necessary to the decision in DeFilippis—a case essentially identical to Addesso—and we think that, as Professor Siegel has suggested, the DeFilippis court erred in implying that Solarino and Addesso were inconsistent (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:62). Addesso involved waiver by omission of a defense from a motion, not from an answer, and the two are not the same. There is no statutory right to amend a motion that is comparable to the right to amend an answer afforded by CPLR 3025 (a).

We agree with the Solarino court that permitting a defendant to add a jurisdictional defense to an answer by an amendment as of right is consistent with CPLR 3211 (e), and advances the purpose of CPLR 3025 (a). CPLR 3025 (a) gives a party 20 days after serving a pleading to correct it or improve upon it, and the addition of a jurisdictional defense is no less proper a correction or improvement than any other. We hold that a party who adds such a defense by an amendment as of right “raise [s] such objection in the responsive pleading” within the meaning of CPLR 3211 (e).

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

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

Order affirmed, with costs.

       Strictly speaking, the “Verified Amended Answer” in this case was not served pursuant to CPLR 3025 (a), because plaintiff amended his complaint after the original answer was served; defendants were entitled to serve a new answer even without relying on CPLR 3025 (a). No party argues, however, that this technical distinction is material. If, in the absence of an amendment to the complaint, defendants would have had a right to add a jurisdictional defense by amending their answer pursuant to CPLR 3025 (a), it would obviously be unfair to hold that plaintiff deprived them of that right by amending his complaint.