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

text:
    [926 NE2d 233, 899 NYS2d 726]
    In the Matter of New York State Office of Children and Family Services et al., Respondents, v Lauren Lanterman et al., Appellants. In the Matter of New York State Office of Alcoholism and Substance Abuse Services et al., Appellants, v Victor Ortiz et al., Respondents.
    Argued February 9, 2010;
    decided March 25, 2010

      POINTS OF COUNSEL

      Edward J. Aluck, Albany, and William P. Seamon for appellants in the first above-entitled proceeding.
    I. The Appellate Division erroneously stayed arbitration of this dispute because remedies available to the arbitrator would not violate public policy. (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v Barni, 51 NY2d 894; Matter of State of N.Y., N.Y. State Dept. of

      Agrie. & Mkts. [Public Empls. Fedn.], 277 AD2d 564; Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132.) II. The Appellate Division erroneously concluded that arbitration of this dispute would necessarily violate public policy and that it is not authorized by the parties’ collective bargaining agreement. (Matter of Wyandanch Union Free School Dist. v Wyandanch Teachers Assn., 48 NY2d 669; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of Winter v Board of Educ. for Rhinebeck Cent. School Dist., 79 NY2d 1; Matter of Smith v Board of Educ. of Wallkill Cent. School Dist., 65 NY2d 797; Matter of Board of Educ. of Norwood-Norfolk Cent. School Dist. [Hess], 49 NY2d 145; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Board of Educ., Bellmore-Merrick Cent. High School Dist., Nassau County v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1.)

      Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan, Barbara D. Underwood and Andrew D. Bing of counsel), for respondents in the first above-entitled proceeding.
    This dispute involving the termination of an employee who did not maintain the teaching certification that is a statutory and regulatory qualification for employment as a teacher is not arbitrable as a contract grievance under article 34 of the parties’ collective bargaining agreement. (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of Blackburne [Governor's Off. of Empl. Relations], 87 NY2d 660; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Felix v New York City Dept, of Citywide Admin. Servs., 3 NY3d 498; Mandelkern v City of Buffalo, 64 AD2d 279; Matter of Sorano v City of Yonkers, 37 AD3d 839; Matter of O'Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254, 10 NY3d 928; Matter of Moogan v New York State Dept. of Health, 8 AD3d 68; Matter of Naliboff v Davis, 133 AD2d 632, 71 NY2d 805.)

      James R. Sandner, Latham, and James D. Bilik for New York State United Teachers, amicus curiae in the first above-entitled proceeding.
    I. The Appellate Division erred by staying arbitration on public policy grounds. (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Meliti v Nyquist, 41 NY2d 183; Matter of Chambers v Board of Educ., Lisbon Cent. School Dist., 58 AD2d 961; Matter of Rappold v Board of Educ., Cleveland Hills Union Free School Dist., 95 AD2d 890.) II. The parties’ agreement to arbitrate encompassed the dispute at issue. (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912; Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311; Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 NY2d 348; Board of Educ. of Cattaragus Cent. School v Cattaraugus Teacher’s Assn., 55 NY2d 951; Matter of Lynch v Nyquist, 41 AD2d 363; Matter of Chambers v Board of Educ., Lisbon Cent. School Dist., 58 AD2d 961; Matter of Rappold v Board of Educ., Cleveland Hills Union Free School Dist., 95 AD2d 890.)

      Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan, Barbara D. Underwood and Andrew D. Bing of counsel), for appellants in the second above-entitled proceeding.
    This dispute involving the termination of an employee who did not maintain a professional credential that is a qualification for employment is not arbitrable as a contract grievance under article 34 of the parties’ collective bargaining agreement. (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of Blackburne [Governor’s Off. of Empl. Relations], 87 NY2d 660; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Felix v New York City Dept. of Citywide

      Admin. Servs., 3 NY3d 498; Mandelkern v City of Buffalo, 64 AD2d 279; Matter of Sorano v City of Yonkers, 37 AD3d 839; Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254, 10 NY3d 928; Matter of Moogan v New York State Dept. of Health, 8 AD3d 68; Matter of Naliboff v Davis, 133 AD2d 632, 71 NY2d 805.)

      Edward J. Aluck, Albany, and William P. Seamon for respondents in the second above-entitled proceeding.
    I. The Appellate Division properly denied the application to stay arbitration on the ground that the grievance concerns the interpretation, application or a claimed violation of article 33 of the collective bargaining agreement and, therefore, that it falls within the broad contract arbitration clause of article 34 of the parties’ collective bargaining agreement. (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Board of Educ., Bellmore Merrick Cent. High School Dist., Nassau County v Bellmore Merrick United Secondary Teachers, 39 NY2d 167; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Steelworkers v Warrior & Gulf Nav. Co., 363 US 574; Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273; Matter of Vestal Cent. School Dist. [Vestal Teachers Assn.], 2 AD3d 1190, 2 NY3d 708.) II. Respondents’ argument concerning past practice and bargaining history is for an arbitrator, not this Court, to review. In any event, such review establishes this grievance is arbitrable. (Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326; Matter of State of N.Y., N.Y. State Dept. of Agric. & Mkts. [Public Empls. Fedn.], 277 AD2d 564; Matter of Felix v New York City Dept. of City wide Admin. Servs., 3 NY3d 498; Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686; Matter of Chalachan v City of Binghamton, 55 NY2d 989; Matter of Union Endicott Cent. School Dist. [Endicott Teachers’ Assn.], 59 AD3d 799; Matter of Police Benevolent Assn. of N.Y. State Troopers, Inc. [Governor’s Off. of Empl. Relations], 17 AD3d 972.)

      Nancy E. Hoffman, Albany, and Leslie C. Perrin for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae in the first and second above-entitled proceedings.
    Summary termination of an employee who is covered by a contractual disciplinary arbitration provision simply because the employee no longer possesses a job-related certification is contrary to law. (Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498; Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 NY3d 465; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1.)
   OPINION OF THE COURT

Smith, J.

In these two cases, state employees who were dismissed because they lacked the credentials required for their jobs seek to arbitrate the question of whether their dismissals were disciplinary actions. Under our decision in Matter of Felix v New York City Dept. of Citywide Admin. Servs. (3 NY3d 498 [2004]), the dismissals clearly were not disciplinary, and the employees’ assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue.

I

Lauren Lanterman was a teacher employed by the Office of Children and Family Services (OCFS); Victor Ortiz was a counselor employed by the Office of Alcoholism and Substance Abuse Services (OASAS). Though they worked for different agencies, Lanterman and Ortiz belonged to the same union, the New York State Public Employees Federation (PEF), and their rights were governed by the same collective bargaining agreement (CBA).

Both Lanterman and Ortiz needed credentials for the jobs they held. A civil service classification standard, promulgated pursuant to Education Law § 112 (1) and 8 NYCRR 116.3 (b), required Lanterman to have a teaching certificate appropriate to her specialty. OASAS regulations, promulgated pursuant to Mental Hygiene Law § 19.07 (d), required Ortiz to have a credential as a credentialed alcoholism and substance abuse counselor (CASAC). Before the events leading to this litigation, Lanterman had a provisional teaching certificate, and Ortiz had a CASAC credential good for three years. Both of these credentials expired, and both Lanterman and Ortiz failed to obtain new ones. As a result, both were dismissed.

PEF filed grievances for Lanterman and Ortiz, claiming that their dismissals violated their rights under article 33 of the CBA. That article is entitled “DISCIPLINE” and begins with the following words:

“33.1 Applicability
“The disciplinary procedure set forth in this Article shall be in lieu of the procedure specified in Sections 75 and 76 of the Civil Service Law and shall apply to all persons currently subject to Sections 75 and 76 of the Civil Service Law.”

The stated purpose of article 33 is “to provide a prompt, equitable and efficient procedure for the imposition of discipline for just cause” (§ 33.2). It prescribes a detailed “disciplinary procedure,” beginning with a “notice of discipline,” which may be followed by a “disciplinary grievance,” which, if not otherwise resolved, may in turn become the subject of a “disciplinary arbitration” (§ 33.5).

OCFS and CASAS rejected the grievances and the Governor’s Office of Employee Relations upheld the rejections. The position of these agencies is that the grievances are not subject to arbitration because Lanterman’s and Ortiz’s dismissals were not for disciplinary reasons, but for the employees’ failure to have the qualifications necessary for their jobs. PEF, Lanterman and Ortiz respond, in substance, that this itself is an arbitrable question. Under article 34 of the CBA, a “contract grievance,” defined as “a dispute concerning the interpretation, application or claimed violation of a specific term or provision of this Agreement” (§ 34.1 [a]), is an arbitrable dispute. PEF, Lanterman and Ortiz argue that, since they say that article 33’s disciplinary procedures are available in their case, and the employers say they are not, a “dispute, concerning the interpretation, application or claimed violation” of a provision of the CBA exists. They thus seek an arbitration about what the contract means, to be followed, if they prevail, by a disciplinary procedure and perhaps a second, disciplinary, arbitration.

PEF filed notices of intention to arbitrate on Lanterman’s and Ortiz’s behalf, and the state agencies brought these proceedings under CPLR article 75 to stay the arbitrations. Both employees prevailed in Supreme Court. In the Appellate Division, the cases were decided by the same panel on the same day (Matter of New York State Off. of Children & Family Servs. [Lanterman], 62 AD3d 1109 [3d Dept 2009]; Matter of New York State Off. of Alcoholism & Substance Abuse Servs. [Ortiz], 62 AD3d 1118 [3d Dept 2009]). The judgment in Lanterman’s favor was reversed, but that in Ortiz’s favor was affirmed, with two Justices dissenting in each case. The reason for the contrasting results is that one Justice was persuaded by the state agencies’ argument, made as to Lanterman but not as to Ortiz, that the proposed arbitration would violate public policy.

In each case, the unsuccessful parties appeal to us as of right, pursuant to CPLR 5601 (a). We affirm in Lanterman and reverse in Ortiz. Because we conclude that neither grievance is arbitrable under the CBA, it is unnecessary for us to decide the public policy issue raised in Lanterman.

II

The question Lanterman and Ortiz seek to arbitrate is essentially the same question we decided in Felix. There, a New York City employee was dismissed for failing to establish city residence, which was a prerequisite to his employment under a local law. The employee sought a hearing under Civil Service Law § 75 (“Removal and other disciplinary action”), but we rejected his claim, holding that the disciplinary provisions of the Civil Service Law did not apply to him. We explained that “while an act of misconduct invokes Civil Service Law § 75 disciplinary procedures,” an employee’s failure to meet a residence requirement “is separate and distinct from an act of misconduct” (3 NY3d at 505). We approved the distinction made in Mandelkern v City of Buffalo (64 AD2d 279, 281 [4th Dept 1978, Simons, J.]) between issues of “job performance, misconduct or competency,” which are subject to Civil Service Law disciplinary procedures, and “a qualification of employment,” which is not.

In Felix’s terms, the dismissals of Lanterman and Ortiz were plainly not disciplinary, but were for failure to meet qualifications of employment—a teaching certificate in Lanterman’s case, a CASAC credential in Ortiz’s. The State does not claim that the employees have forfeited their jobs by misconduct. It claims that they do not have the qualifications that they must have to hold those jobs.

PEF, Lanterman and Ortiz try to distinguish Felix by arguing that these cases involve contractual, not statutory, disciplinary procedures. The argument is without merit, because the relevant contract clause, on its face, is made applicable to exactly those cases to which the statute would otherwise apply: the contractual disciplinary procedure is “in lieu of the procedure specified in Sections 75 and 76 of the Civil Service Law” and is applicable “to all persons currently subject to Sections 75 and 76 of the Civil Service Law.” Felix squarely holds that sections 75 and 76 are inapplicable to the grievances of Lanterman and Ortiz.

PEF, Lanterman and Ortiz argue, in substance, that however weak their claim to be accorded disciplinary hearings may be, the claim is for an arbitrator, not a court, to decide. It is generally true that we distinguish “between the merits of grievances and the threshold question of whether courts or arbitrators have the authority to decide the merits” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 279 [2002]) and that “[e]ven an apparent weakness of the claimed grievance is not a factor in the court’s threshold determination” (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 142 [1999]). These rules are applicable as long as a contractual interpretation is at least colorable, but it is not true that any claim, no matter how insubstantial, may be arbitrated. Under Watertown, the test is “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” (93 NY2d at 143). We hold here, as we did in Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes (94 NY2d 686, 694-695 [2000]), that the “reasonable relationship” test is not met: “despite the breadth of the arbitration clause in the CBA, it cannot be construed to extend to arbitration of grievances which, as a matter of law, do not effectively allege any breach of the collective bargaining agreement.”

Accordingly, in Lanterman, the order of the Appellate Division should be affirmed with costs. In Ortiz, the order of the Appellate Division should be reversed with costs and the petition to stay arbitration granted.

Ciparick, J. (dissenting).

Because the parties’ collective bargaining agreement (CBA) may be interpreted to manifest a clear intent to arbitrate the question of whether an employee who lacks the requisite credentials for employment can be terminated under the CBA’s contract grievance and discipline procedures, I respectfully dissent and would compel arbitration.

In both of these cases the majority permanently stays arbitration, holding that the parties to the CBA did not agree to arbitrate their disputes involving termination of employees who did not maintain professional credentials. The effect of this ruling is to deny the employees disciplinary due process, as established in the CBA, and permit their summary termination. It has long been settled that a dispute is arbitrable if the arbitration is not barred by “any statutory, constitutional or public policy” and the parties “in fact agreed to arbitrate the particular dispute” (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519 [2007] [internal quotation marks omitted]). We have read the second of these requirements broadly; if there is a “reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA,” the dispute is arbitrable (Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]). The arbitrator can then “make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them” (id.).

Under the CBA at issue here between New York State and the New York State Public Employees Federation (PEF), it would not be unreasonable for an arbitrator to conclude that the parties agreed to arbitrate this dispute. As the majority notes, article 34 of the CBA defines a “contract grievance” as “a dispute concerning the interpretation, application, or claimed violation of a specific term or provision of this Agreement” (§ 34.1 [a]). Because PEF, Lanterman, and Ortiz claim that the employers violated the procedural mandates of article 33 of the CBA, their claims fall under this definition. Notably, prior to these two matters, the State and PEF had a long-standing practice of following the disciplinary process set forth in article 33 whenever state agencies sought to terminate employees for lack of credentials. Whether article 33’s disciplinary procedure applies here is undoubtedly a dispute over the application of a term of the CBA and, therefore, it should be resolved by the arbitrator, not a court.

This result is buttressed by our traditionally expansive reading of CBA arbitration clauses as a means of resolving public sector labor disputes. Generally, if a court “determine[s] that the arbitration clause is broad enough to encompass the subject matter of the dispute, ‘[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator’ ” (Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, 913 [1989], quoting Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311, 314 [1980]). This is true even where the substantive merits of a claim are weak (Matter of Franklin Cent. School [Franklin Teachers Assn.], 51 NY2d 348, 357 [1980]).

The Office of Alcoholism and Substance Abuse Services (GA-SAS), the Office of Children and Family Services (OCFS), and the Governor’s Office of Employee Relations (GOER) argue that Ortiz and Lanterman’s terminations were not based on “misconduct or incompetence” and, thus, were not disciplinary actions. However, this “incompetency or misconduct” language comes from Civil Service Law § 75, which article 33 of the CBA supplants. Instead, the CBA provides that discipline may be imposed for “just cause.” It would certainly be reasonable for an arbitrator to determine that, as Lanterman and Ortiz argue, failure to maintain a license constitutes “just cause” for discipline under the CBA. Because addressing this claim requires an interpretation of the CBA and the arbitrator alone has the power to determine the scope of the contract provisions, the dispute should be arbitrable.

In holding otherwise, the majority’s reliance on Matter of Felix v New York City Dept. of Citywide Admin. Servs. (3 NY3d 498 [2004]) is misplaced, since that case did not involve a CBA or any language of comparable breadth to that used in article 34. In Felix, we interpreted a provision of the Administrative Code of the City of New York requiring a municipal employee to maintain a residence within the city and the statutory language of Civil Service Law § 75. The majority asserts that because article 33 replaces the procedure of Civil Service Law § 75, the contract language should be interpreted as we interpreted section 75 in Felix, where we distinguished between failure to comply with requirements that define eligibility and acts of misconduct or incompetence. In these cases, however, we are interpreting contractual language, including a provision specifying that any disputes regarding the interpretation of that language are themselves arbitrable. Moreover, section 12-120 of the New York City Administrative Code—the employment requirement at issue in Felix—expressly provides that failure to maintain residency constitutes a forfeiture of employment (id. at 502, citing Administrative Code of City of NY § 12-120). Here, because no specific statutory provision calls for automatic forfeiture of employment upon the loss of certification, the arbitrator would have discretion to fashion a remedy. Furthermore, the notice and opportunity to contest procedures contained in the Administrative Code satisfied due process concerns in Felix, but are not available here.

Since I believe that the parties agreed to arbitrate these disputes, it is necessary to consider whether any public policy precludes the arbitration. I know of no such policy and, contrary to the Appellate Division’s dispositive finding in Lanterman, do not think that the public policy of having well-qualified, certified teachers precludes arbitration here. A dispute is nonarbitrable if a court can “conclude, without engaging in any extended factfinding or legal analysis that a law [or policy] prohibits, in an absolute sense, the particular matters to be decided” by arbitration (County of Chautauqua, 8 NY3d at 519, quoting Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 8-9 [2002] [internal quotation marks and brackets omitted]). “Put differently, a court must stay arbitration where it can conclude, upon examining the parties’ contract and the implicated statute on their face, ‘that the granting of any relief would violate public policy’ ” (id., quoting Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 284 [2000]). Here, although the law clearly prohibits the parties’ continued employment in their current positions without the requisite licensing, it does not require their termination; other remedies may be available.

In Lanterman’s case, OCFS and GOER argue that arbitration of Lanterman’s termination was barred by public policy, but they fail to demonstrate that any relief granted by the arbitrator would violate public policy (see Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478, 484 [1995]; County of Chautauqua, 8 NY3d at 519). For example, in keeping with the expansive powers of an arbitrator, Lanterman could have been suspended without pay until she received her certification or she could have been reassigned to a non-teaching position. Although the regulations of the Education Department provide that “[a]ll professional instructional personnel shall have the required certificates as set forth in Part 80 of this Title” (8 NYCRR 116.3 [b]), the law nowhere expresses that a lapsed certificate will result in immediate termination.

Indeed, in previous cases where we have found that public policy favors termination of a tenured civil servant without a hearing, the applicable statute or regulation has made that policy clear. For example, the federal Hatch Act expressly provides that an employee employed in connection with a program financed by federal funds is subject to discharge if he or she becomes a candidate for partisan elected office (5 USC §§ 1502-1506). Similarly, Public Officers Law § 30 provides for the forfeiture by law of employment for conviction of a felony, and section 12-120 of the New York City Administrative Code expressly provides that failure to maintain residency constitutes a forfeiture of employment (see Felix, 3 NY3d at 502). Here, in stark contrast, no specific statutory provision calls for the automatic forfeiture of employment upon a loss of certification. Thus, the public policy exception to arbitrability of a dispute should not apply here and we should maintain our clear policy of discouraging judicial interference with public sector arbitration, as contemplated by the Taylor Law (Civil Service Law art 14).

Therefore, in Lanterman, I would reverse the order of the Appellate Division, dismiss the petition to stay arbitration, and grant the cross motion to compel arbitration. In Ortiz, I would affirm the Appellate Division order that dismissed the petition to stay arbitration and granted the cross motion to compel arbitration.

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

In Matter of New York State Off. of Children & Family Serus. v Lanterman: Order affirmed, with costs.

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

In Matter of New York State Off. of Alcoholism & Substance Abuse Servs. v Ortiz: Order reversed, etc.

      . OASAS and GOER do not press a public policy argument in the Ortiz case, but merely contend that the dispute is not arbitrable as a contract grievance under article 34 of the CBA.

      . OCFS maintains that article 33 of the CBA prohibits the suspension of Lanterman without pay pending the resolution of a disciplinary proceeding. Article 33 provides that OCFS may suspend an employee pending a full hearing before an arbitrator where OCFS determines that probable cause exists that the employee’s “continued presence on the job . . . would severely interfere with operations” (§ 33.4 [a] [1]). Of course, an arbitrator can address whether the lack of professional certification constitutes “severe interference” with operations and what, if any, remedy is appropriate.

      . Article 33 of the CBA contemplates this remedy and provides that “[w]here the appointing authority has determined that an employee is to be temporarily reassigned pursuant to this Article, the employee shall be notified in writing of the location of such temporary reassignments and . . . such reassignment may involve the performance of out-of-title work” (§ 33.4 [b] [1]).

      . Similarly, OASAS’ automatic dismissal of Ortiz from service for failure to maintain a required credential may not be appropriate under the circumstances and there may be other available remedies for an arbitrator to fashion.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [926 NE2d 250, 899 NYS2d 743]
    In the Matter of Board of Education of Bay Shore Union Free School District, Appellant, v Thomas K., Individually and as Parent and Natural Guardian of Ryan K., an Infant, Respondent.
    Argued February 9, 2010;
    decided March 30, 2010

      POINTS OF COUNSEL

      Ingerman Smith, L.L.P., Hauppauge (Christopher Venator and Ethan D. Balsam of counsel), for appellant.
    I. The lower courts erred in affirming the state administrative determination that petitioner-appellant has a legal obligation to provide a one-on-one aide to Ryan K. on site at his private school pursuant to Education Law § 3602-c (9). (Board of Educ. of MonroeWoodbury Cent. School Dist. v Wieder, 72 NY2d 174; Estate of Cowart v Nicklos Drilling Co., 505 US 469; Grumet v Pataki, 93 NY2d 677; Russman v Board of Educ. of Enlarged City School Dist. of City of Watervliet, 92 F Supp 2d 95, 260 F3d 114; KDM v Reedsport School Dist., 196 F3d 1046; Foley v Special School Dist., 153 F3d 863; Fowler v Unified School Dist. No. 259, Sedgwick County, Kan., 128 F3d 1431; Cefalu v East Baton Rouge Parish School Bd., 117 F3d 231.) II. The lower courts erred in affirming the state administrative determination that “services,” as that term is defined by Education Law § 3602-c (1) (a), include the provision of a one-on-one aide, when aides are categorically prohibited from providing instruction without proper certification.

      Bee Ready Fishbein Hatter & Donovan, LLP, Mineola (Joshua

      M. Jemal and Kenneth A. Gray of counsel), for respondent.
    I. Under New York State’s Education Law petitioner-appellant is required to provide Ryan K. with the individual aide service at the nonpublic school in which he has been enrolled since preschool, as required under his Individualized Education Program. (Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder, 72 NY2d 174; Russman v Board of Educ. of City of Watervliet, 150 F3d 219.) II. A one-on-one aide is an instructional service that is required to be provided under New York State’s Education Law. (Board of Educ. of MonroeWoodbury Cent. School Dist. v Wieder, 72 NY2d 174.) III. The ruling of the Board of Education of the Bay Shore Union Free School District in this case is contrary to its own policy and past practice of providing services in a nonpublic school setting.
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal presents two questions governed by section 3602-c of the Education Law: (1) whether petitioner School District is required to provide respondent student with an individual aide at his nonpublic school and (2) whether an individual aide falls within the definition of “services.” We find that, under these circumstances, the School District is required to provide the aide at the student’s private school and that an individual aide is a service within the meaning of the statute. We therefore affirm.

Respondent child is a student at St. Patrick School, a private school located within the Bay Shore Union Free School District. When he was in the first grade, he was diagnosed with attention deficit hyperactivity disorder (ADHD) and was classified as “other health impaired.” The School District’s Committee on Special Education therefore established an Individualized Education Program (IEP), recommending that the student receive both 40 minutes a day in a resource room and an individual classroom aide for three hours daily during his academic classes. The one-on-one aide was recommended in this case in order to refocus the student and to keep him on task during class. The aide was considered necessary in order to help the child learn. Both sides agree that the student should receive the recommended services, but disagree as to where the individual aide is to be provided—at the student’s private school or at a Bay Shore public school.

After the School District refused to provide the aide at the child’s school, his parents sought a hearing before an Impartial Hearing Officer (IHO) pursuant to the federal Individuals with Disabilities Education Act (IDEA) (20 USC § 1400 et seq.) and the New York Education Law. The IHO determined that, under the circumstances, it was not only reasonable to provide the individual aide at the student’s nonpublic school, but that it was necessary in order for the student to receive a free appropriate public education. The IHO therefore directed the School District to provide the services at St. Patrick. The IHO also determined that the individual aide fell within the Education Law § 3602-c definition of “services.” The School District appealed to the State Review Officer (SRO), who agreed that, in order for the one-on-one aide to be effective and to meet the child’s individual educational needs, the aide must be provided at the child’s nonpublic school. The SRO also rejected the argument that the individual aide was not a “service[ ]” within the meaning of the Education Law.

The School District brought an action in federal court, under the IDEA, for review of the administrative determination (see Bay Shore Union Free School Dist. v T. ex rel. R., 405 F Supp 2d 230 [ED NY 2005]). Observing that the parties agreed the student was not entitled to receive services at his nonpublic school under the federal act, the District Court affirmed the SRO’s decision “dubitante,” finding that New York law requires services to be provided based upon the educational needs of the child and that, in this case, the services had to be provided at the nonpublic school (see Bay Shore, 405 F Supp 2d at 233, 250). The Second Circuit vacated that determination and dismissed the appeal for lack of subject matter jurisdiction, concluding that the case raised only questions of state law (485 F3d 730 [2d Cir 2007]).

The School District then commenced this proceeding to vacate the determination of the SRO. Supreme Court denied the petition (2008 NY Slip Op 33601[U]) and the Appellate Division affirmed, finding that the location of the services depended upon the educational needs of the individual child and that, based on this child’s needs, the School District was required to provide the services at the student’s nonpublic school (60 AD3d 851, 852 [2009]). This Court granted the School District leave to appeal (12 NY3d 715 [2009]) and we now affirm.

Under the Individuals with Disabilities Education Act, in order to be eligible for federal financial assistance, a state must show that a system is in place to ensure that a free appropriate public education is made available to all of the state’s school-aged children with disabilities (see 20 USC § 1412 [a] [1] [A]). New York thus requires that every school district provide “suitable educational opportunities for children with handicapping conditions” based upon the needs of the individual child (Education Law § 4402 [2] [a]).

Education Law § 3602-c, known as the dual enrollment statute, requires the provision of special education programs “on an equitable basis” to students who attend nonpublic schools (Education Law § 3602-c [2] [b] [1]). That statute also provides that “[p]upils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools” (Education Law § 3602-c [9]). Bay Shore argues that it does not have a statutory obligation to provide such services to students at their nonpublic schools.

In Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder (72 NY2d 174 [1988]) we determined that the dual enrollment statute requires neither that educational services be provided at a student’s nonpublic school, nor that they be provided at the public school. Rather, Wieder recognized that the purpose behind the statute was to allow private school students with disabilities “equal access to the full array of specialized public school programs” and that, if the student received those services in the public school, the student should be integrated with, rather than separated from, other public school students (Wieder, 72 NY2d at 184). The Court recognized that where the services must be provided should be determined based upon the child’s “individual educational needs in the least restrictive environment” (Wieder, 72 NY2d at 188).

Although the dual enrollment statute does not mandate that the School District provide services at a nonpublic school for each student, that does not end the inquiry. Applying Wieder to this case, the pertinent question is what the educational needs of this student require. Both the IHO and the SRO essentially found that, in order for this child to receive a free appropriate public education, the services of an individual aide would have to be provided at his nonpublic school. The fallacy of the School District’s position is that it advocates for the student, under the tutelage of an aide, to be kept focused and on task at a site removed from his own teacher and classmates, and indeed, from his regular school. As a practical matter, if the School District’s position were upheld, it would be necessary for the child to withdraw from the school his parents selected for him in order to receive the required services. Under these circumstances, the courts below properly determined that the School District was required to provide the one-on-one aide at the student’s private school.

The School District also argues that a one-on-one aide does not fall within the statutory definition of “services.” The statute defines “services” as “instruction in the areas of gifted pupils, career education and education for students with disabilities, and counseling, psychological and social work services related to such instruction” (Education Law § 3602-c [1] [a]). The School District maintains that without proper certification an aide is prohibited from providing instruction. However, “education for students with disabilities” is further defined as special education programs designed to serve children with disabilities as defined in Education Law § 4401 (1) (see Education Law § 3602-c [1] [d]). That statute, in turn, provides that a “child with a disability” is one who “can only receive appropriate educational opportunities from a program of special education,” which includes “special services or programs” such as appropriate developmental or support services (see Education Law § 4401 [1], [2]).

It is clear from this broad statutory language that the definition of services was intended to include a wide range of educational resources for students with disabilities. One of the purposes of a teacher’s aide is to assist the teacher by performing certain services, including “support teaching duties” (8 NYCRR 80-5.6 [a] [3]; see also Education Law § 3009 [2] [a]). While the aide is plainly facilitating the child’s education and providing services related to instruction, the aide is not directly providing instruction. However, the aide’s contributions to the individual child’s education are an integral part of his regular classroom experience. It is only by an overly narrow and restrictive reading of the statute that one could conclude that the individual aide would not fall within the statutory definition of “services.”

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

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs.


author: Ciparick, J.

text:
    [926 NE2d 246, 899 NYS2d 739]
    The People of the State of New York, Appellant, v Patrick Zephrin, Respondent.
    Argued February 11, 2010;
    decided March 30, 2010

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Susan Paulson and Francis F. Caputo of counsel), for appellant.
    Because defendant’s term of probation had not yet expired when the declaration of delinquency was filed against him, Supreme Court properly sentenced defendant on the violation of probation. (People v Teddy W., 56 AD3d 697; People v Dawson, 301 AD2d 659; People v Ellis, 27 AD3d 236; People v Feliciano, 1 AD3d 163; People v Barnett, 232 AD2d 170; People v Weinflash, 33 AD3d 559, 8 NY3d 886; People ex rel. Maye v Keating, 225 AD2d 836; People v McNair, 87 NY2d 772; People v Letterlough, 86 NY2d 259; Korematsu v United States, 319 US 432.)

      Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for respondent.
    The Appellate Division correctly held, pursuant to Penal Law § 60.01 (2) (d), that respondent’s term of probation expired before the declaration of delinquency was filed, and therefore that the court lacked power to adjudicate him a probation violator. (People v Antwine, 299 AD2d 151; People v Montgomery, 115 AD2d 102; People v Lopez, 6 NY3d 248; People v Campbell, 97 NY2d 532; Matter of Pirro v

      Angiolillo, 89 NY2d 351; People v Saunders, 37 AD3d 1149; People v Youngs, 212 AD2d 1001; People v Perez, 161 AD2d 556; Matter of Society of N.Y. Hosp. v Del Vecchio, 70 NY2d 634; People v Ladd, 224 AD2d 881, 89 NY2d 893.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented on this appeal is whether defendant’s jail-time credit toward his sentence of imprisonment also reduces his term of probation where defendant received a split sentence of incarceration and probation. We hold that defendant was entitled to credit toward his term of probation and, as a result, such term had expired prior to the filing of the declaration of delinquency.

On January 3, 2001, upon defendant’s guilty plea to grand larceny in the third degree arising from Internet purchases made with stolen credit card information, County Court imposed a split sentence of six months’ incarceration and five years’ probation. The court acknowledged that defendant had been in custody since August of 2000 prior to sentencing and would receive credit for time served toward the period of incarceration. As a result, defendant was released from custody on the day of sentencing and probation was transferred to the New York City Department of Probation.

On April 27, 2005, defendant was arrested for, among other things, forgery in the second degree. In December 2005, the Department of Probation filed a declaration of delinquency based on defendant’s April 2005 arrest. The following month, defendant pleaded guilty to the charge of possession of a forged instrument.

Later in January 2006, defendant appeared in Supreme Court in connection with the charge that he had violated his probation. After Supreme Court rejected his argument that his term of probation had ended in August 2005 prior to the filing of the declaration of delinquency, defendant pleaded guilty to violating his probation. Supreme Court sentenced defendant to an indeterminate term of 1 to 3 years’ imprisonment to run concurrently with the sentence imposed for his January 2006 conviction for possession of a forged instrument.

Defendant appealed. The Appellate Division unanimously reversed and vacated the sentence, concluding that the probationary period had expired prior to the filing of the declaration of delinquency (54 AD3d 1066, 1067 [2d Dept 2008]). The People appealed by permission of a Judge of this Court (12 NY3d 861 [2009]), and we now affirm.

Supreme Court had the authority to proceed on the declaration of delinquency only “during the period of [defendant’s] sentence of probation” (CPL 410.30; see also People v Montgomery, 115 AD2d 102, 103 [3d Dept 1985]). The Appellate Division here concluded that defendant’s term of probation had expired prior to the filing of the declaration of delinquency because defendant should have received credit toward his probationary term for the time he spent confined prior to sentencing (see 54 AD3d at 1067; see also People v Teddy W, 56 AD3d 697, 698 [2d Dept 2008], lv denied 12 NY3d 860 [2009]; People v Dawson, 301 AD2d 659, 659-660 [2d Dept 2003]). We agree.

Authorized by Penal Law § 60.01 (2) (d), a “split sentence” consists of a term of imprisonment combined with a term of probation or conditional discharge (see Matter of Pirro v Angiolillo, 89 NY2d 351, 353 [1996]). The statute states:

“In any case where the court imposes a sentence of imprisonment . . . not in excess of six months for a felony . . . , it may also impose a sentence of probation or conditional discharge provided that the term of probation or conditional discharge together with the term of imprisonment shall not exceed the term of probation or conditional discharge authorized by article sixty-five of this chapter. The sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation or conditional discharge.”

Penal Law § 65.00 (3) (a) authorizes a five-year term of probation for most felony offenses. Section 65.00 (2), however, recognizes that, where a split sentence is imposed, the limitations set forth in Penal Law § 60.01 (2) (d) may trump the time period set forth in section 65.00 (3) (a). Specifically, section 65.00 (2) states: “When a person is sentenced to a period of probation the court shall, except to the extent authorized by paragraph (d) of subdivision two of section 60.01 of this chapter, impose the period authorized by subdivision three of this section and shall specify . . . the conditions to be complied with” (emphasis added). Taken together, the explicit statutory command of Penal Law § 60.01 (2) (d) and Penal Law § 65.00 dictates that, where a court imposes a split sentence, the term of imprisonment and term of probation together may not exceed, in most cases, five years. In other words, for most felonies, the relevant statutory provisions create a cap of five years that the two components of a split sentence together may not exceed.

Thus, in cases where a defendant has been incarcerated pending sentencing and, as a result, receives credit for time served toward the term of imprisonment of a split sentence (see Penal Law § 70.30 [3]), that defendant’s probationary term is also reduced by the period the defendant was incarcerated prior to sentencing. For example, if a defendant was incarcerated for two months prior to sentencing, and was subsequently sentenced to a split sentence of six months’ incarceration and five years’ probation, that defendant’s post-sentence prison term would be reduced by the two months of presentence detention. The defendant’s probationary term, which runs concurrently with the term of imprisonment (see Penal Law § 60.01 [2] [d]) would also be reduced by the two months of presentence detention. As a result of that “reduction,” the probationary term, together with the term of imprisonment, would equal five years, thereby complying with the plain language of the split sentence statute.

The People argue that the period of probation had not yet expired when the declaration of delinquency was filed against defendant and that the applicable statute is Penal Law § 65.15 (1), which provides that “[a] period of probation . . . commences on the day it is imposed.” The People note that some Appellate Division decisions have relied on this statutory provision to conclude that, where a split sentence is imposed, a defendant is not entitled to credit toward his probationary term for time spent in custody prior to sentencing (see People v Ellis, 27 AD3d 236, 237 [1st Dept 2006], lv denied 6 NY3d 847 [2006]; People v Feliciano, 1 AD 3d 163 [1st Dept 2003], lv denied 1 NY3d 571 [2003]). Further, the People argue that Penal Law § 70.30 (3) requires that a defendant be given credit for presentence time served toward a term of imprisonment only, because it is silent about credit to be given against a probationary term.

However, if defendant’s probationary period is not calculated to begin until his sentencing date, his probationary period together with his term of imprisonment would exceed his five-year term of probation, in clear violation of section 60.01 (2) (d) of the Penal Law. By calculating defendant’s term of probation to begin at the same time as and to run concurrently with the term of incarceration, we give effect to both the split sentence statute and Penal Law § 65.15. The result of our holding is that defendant’s period of probation, “reduced” by the period of incarceration, begins on the day the sentence is imposed (see Penal Law § 65.15 [1]). Even if Penal Law § 65.15 (1) can be read to conflict with the specific directive of Penal Law § 60.01 (2) (d), we have held on numerous occasions that a specific statutory provision governs over a more general provision (see Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs., 5 NY3d 36, 42 n 8 [2005]; Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149, 153 [2001] [a “well-established rule of statutory construction provides that a ‘prior general statute yields to a later specific or special statute’ ”], quoting Erie County Water Auth. v Kramer, 4 AD2d 545, 550 [4th Dept 1957], affd 5 NY2d 954 [1959]). In this instance, Penal Law § 60.01 (2) (d) is not only the more specific statutory command, inasmuch as it was enacted specifically to provide for split sentences, but it is also the later-enacted statute vis-àvis Penal Law § 65.15 (1). We also refuse to read Penal Law § 70.30 (3) in isolation to preclude our conclusion. In short, all parts of this sentencing scheme are best harmonized by running the term of probation together with the term of imprisonment, not to exceed five years.

Finally, we note that a defendant’s term of probation should not be reduced by time-served credit longer than the sentence of imprisonment. In the case of a split sentence the probationary term can only be reduced by time-served credit up to six months (see e.g. People v Dawson, 301 AD2d 659, 659-660 [2d Dept 2003]; People v Montgomery, 115 AD2d 102, 103 [3d Dept 1985]). Thus, the term of probation to be served would never be less than 4½ years, regardless of the time spent in presentence confinement. In that regard, we reemphasize that, since the statute requires that the term of incarceration, together with the term of probation, may not exceed the term of probation authorized by article 65 of the Penal Law (see Penal Law § 60.01 [2] [d]; § 65.00 [3] [a]), here five years, defendant’s term of probation had expired before the declaration of delinquency was filed and Supreme Court was without authority to adjudicate defendant a probation violator.

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

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

Order affirmed.


author: Jones, J.

text:
    [926 NE2d 1202, 900 NYS2d 698]
    Hotel 71 Mezz Lender LLC, Appellant, v Robert D. Falor et al., Respondents, et al., Defendant.
    Argued January 6, 2010;
    decided February 16, 2010

      POINTS OF COUNSEL

      Gibson, Dunn & Crutcher LLP, New York City (Robert L. Wei-gel of counsel), for appellant.
    I. The trial court’s order of attachment was proper. (National Broadway Bank v Sampson, 179 NY 213; Cotnareanu v National City Bank, 271 NY 619; Bank of China, N.Y. Branch v NBM L.L.C., 192 F Supp 2d 183; Harris v Balk, 198 US 215; Morgan v Mutual Benefit Life Ins. Co., 189 NY 447; Plimpton v Bigelow, 93 NY 592; Breezevale Ltd. v Dickinson, 262 AD2d 248; Perez v Chase Manhattan Bank, 61 NY2d 460; Severnoe Sec. Corp. v London & Lancashire Ins. Co., 255 NY 120; ABKCO Indus. v Apple Films, 39 NY2d 670.) II. The trial court’s appointment of Albert M. Rosenblatt as the post-judgment receiver was proper under CPLR 5228. (Smith v Meader Pen Corp., 255 App Div 397; Aquavella v Equivision, Inc., 181 Misc 2d 322, 270 AD2d 972; Udel v Udel, 82 Misc 2d 882; Matter of Myer, 273 App Div 387; Matter of Chlopecki v Chlopecki, 296 AD2d 640; Fitzgerald v Tamola, 199 AD2d 122; Noce v Kaufman, 2 NY2d 347; Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678; ABKCO Indus. v Apple Films, 39 NY2d 670; Acken v Coughlin, 103 App Div 1.)

      Mitchell Silberberg & Knupp LLP, New York City (Paul D. Montclare of counsel), for respondent.
    I. The court below lacked jurisdiction to attach defendants’ interests in out-of-state entities. (National Broadway Bank v Sampson, 179 NY 213; Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25; Koehler v Bank of Bermuda Ltd., 12 NY3d 533; Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v Advanced Empl. Concepts, 269 AD2d 101; Sweeney, Cohn, Stahl & Vaccaro v Kane, 6 AD3d 72; Oliner v Canadian Pac. Ry. Co., 34 AD2d 310, 27 NY2d 988; Holmes v Camp, 219 NY 359; Bischoff v Boar’s Head Provisions Co., Inc., 436 F Supp 2d 626; Weber v King, 110 F Supp 2d 124; Harris v Balk, 198 US 215.) II. The court improperly attached properties held as tenancies by the entirety in violation of Florida law. III. The court improperly attached properties in which none of defendants hold a direct interest. (Capital Ventures Intl. v Republic of Argentina, 443 F3d 214; Bass v Bass, 140 AD2d 251; Viggiano v Viggiano, 136 AD2d 630.) IV New York courts may not appoint a receiver to run out-of-state companies. (Acken v Coughlin, 103 App Div 1; Harbor Footwear Group v ASA Trading, 1 Misc 3d 911 [A], 2004 NY Slip Op 50036[U]; Hallenborg v Greene, 66 App Div 590; Matter of Burge [Oceanic Trading Co.], 282 App Div 219; Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25.) V There is no basis to appoint a receiver over respondent’s management rights in foreign companies. (Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209.) VI. There is no jurisdiction to appoint a receiver over out-of-state assets. (Acken v Coughlin, 103 App Div 1; Harris v Balk, 198 US 215; National Broadway Bank v Sampson, 179 NY 213; Sweeney, Cohn, Stahl & Vaccaro v Kane, 6 AD3d 72; Bischoff v Boar’s Head Provisions Co., Inc., 436 F Supp 2d 626.) VII. The court below disregarded Florida law in appointing a receiver over interests held by husband and wife as tenants by the entirety. (Hallenborg v Greene, 66 App Div 590.) VIII. The court below abused its discretion in appointing a receiver. (Rosen v Siegel, 106 F3d 28; Secured Capital

      Corp. of N.Y. v Dansker, 263 AD2d 503; Matter of Chlopecki v Chlopecki, 296 AD2d 640.)
   OPINION OF THE COURT

Jones, J.

The primary issue before the Court is whether the intangible personal property plaintiff sought to attach, i.e., defendants’ ownership/membership interests in various out-of-state business entities, was subject to attachment under CPLR article 62. We conclude that the issuance of an order of attachment in New York on defendant Guy T. Mitchell, the nondomiciliary garnishee of defendants’ intangible personal property, who voluntarily submitted to personal jurisdiction in New York, was appropriate.

We further hold that Supreme Court did not abuse its discretion in appointing a receiver pursuant to CPLR 5228.

By agreement dated March 29, 2005, plaintiff Hotel 71 Mezz Lender LLC made a $27,338,801 mezzanine loan to nonparty Chicago H & S Senior Investors, LLC (borrower) for the purpose of developing and renovating Hotel 71, a prominent hotel located in Chicago. This loan was made by plaintiff and accepted by the borrower in New York. Further, the proceeds of this loan were disbursed from New York. On that same day, defendants, including Guy T. Mitchell, who do not reside in New York, executed a guaranty of payment (guaranty) under which they unconditionally agreed to be jointly and severally liable for the borrower’s obligations under the loan and submitted to the jurisdiction of any federal or state court in New York City in any suit, action or proceeding arising out of or relating to the guaranty. By executing this guaranty, defendants waived all defenses and counterclaims that might have been asserted against plaintiff in the event the borrower defaulted on the loan. In addition to being negotiated in New York, the guaranty was to be governed by and construed in accordance with the laws of New York State.

The borrower thereafter defaulted on the loan and filed for bankruptcy protection. On April 9, 2007, plaintiff commenced this action against the guarantors in Supreme Court, New York County to enforce the guaranty and recover the amounts due under the loan. After defendants answered, plaintiff made an ex parte application, pursuant to CPLR 6201, for a prejudgment order of attachment. Plaintiff sought to attach defendants’ property interests as security for the collection of any judgment entered against defendants. On September 25, 2007, Supreme Court granted the order of attachment in the sum of $65,149,926 (the amount secured by the order). The court, however, stayed service of the levy by the sheriff to afford defendants the opportunity to oppose plaintiffs application for an order of attachment. In early October 2007, the order of attachment was delivered to the sheriff of the City and State of New York.

On October 23, 2007, Supreme Court heard oral argument from counsel regarding the order of attachment. Defendant Mitchell, who had been deposed in Supreme Court that day, was present to oppose the order. Following the hearing, Supreme Court permitted the sheriff to serve the order of attachment upon defendant Mitchell personally, as garnishee for any ownership/membership interests defendants may have had in 23 out-of-state entities, and as the apparent manager of the entities.

The property at issue consisted of defendants’ interests in 22 limited liability companies formed in Delaware, Georgia and Florida and a Florida corporation solely owned by defendant Mitchell. Unlike stock certificates, which are tangible property, defendants’ ownership/membership interests are intangible and uncertificated.

After Supreme Court sealed the record, defendant Mitchell, pursuant to CPLR 6219, provided plaintiff with garnishee statements for the 23 entities. Defendant Mitchell does not dispute that he is the “proper garnishee” (within CPLR 5201 [c] [1]) for defendants’ ownership/membership interests. Nor does defendant Mitchell argue that he was improperly served. Defendant Mitchell, through counsel, stated in a letter to Supreme Court dated January 28, 2008, “[w]e are prepared to waive any argument that the proper garnishee was not served with the order of attachment or the related levies in this case.”

In separate orders to show cause, plaintiff moved to confirm the order of attachment in the sum of $65,149,926, and for the appointment of a receiver due to defendants’ alleged refusal to produce documents related to their finances and their refusal to attend duly noticed depositions. By order entered February 8, 2008, Supreme Court granted plaintiffs motion to confirm the order of attachment, finding that plaintiff made the necessary showing under CPLR 6212 to confirm attachment and that attachment was necessary in the aid of security. Further, the court ruled that defendants’ intangible interests were attachable property under the CPLR and that, because those interests were not evidenced by certificates, the service of the levy on defendant Mitchell was sufficient to fix the situs of said property in New York. Two months later, Supreme Court issued an order stating, “[c]onditioned upon the entry of judgment, . . . [plaintiffs] motion for the appointment of a receiver [of defendants’ ownership/ membership interests in 23 out-of-state entities] is granted.” As set forth in this order, the receiver is authorized to take such actions as are appropriate to satisfy the order of attachment and any judgment(s) entered against defendants.

On February 6, 2008 and April 22, 2008, Supreme Court granted plaintiff summary judgment on liability against six of the defendants, including defendant Mitchell. On April 21, 2008, judgment in the amount of $52,404,066.54 was entered against these defendants. To date, the judgment has not been satisfied.

“On a motion for an order of attachment, or for an order to confirm an order of attachment, the plaintiff shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action, that it is probable that the plaintiff will succeed on the merits, that one or more grounds for attachment provided in section 6201 exist, and that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff.”

The Appellate Division reversed in a 3-1 decision, holding that because Supreme Court lacked jurisdiction over the defendants’ interests in the limited liability companies and other entity, that court erred in granting plaintiffs motion to confirm the order of attachment. Citing National Broadway Bank v Sampson (179 NY 213 [1904]), the Appellate Division majority stated, “an attachment of a debt or other intangible property can only be effected as against the debtor or obligor by service upon him or her when he or she is domiciled within the state” (58 AD3d 270, 273 [2008]). Thus, because defendant Mitchell was only temporarily in New York when he was served, his presence was insufficient to support the attachment. The majority also concluded that Supreme Court abused its discretion in appointing a receiver.

In concluding that Supreme Court’s orders should be affirmed, the dissent argued, based on the statutory framework of CPLR article 62 and Harris v Balk (198 US 215 [1905]), that service on a proper garnishee while that individual is in New York—even temporarily—is enough to permit the attachment of an intangible asset. The dissent also concluded, given defendants’ alleged conduct in refusing to produce documents and appear for depositions, that Supreme Court was warranted in appointing a receiver to aid in postjudgment enforcement. The Appellate Division granted plaintiff leave to appeal, and we now reverse.

Plaintiff argues that Supreme Court’s order of attachment was proper in all respects. Defendants counter that Supreme Court lacked jurisdiction over the ownership interests plaintiff sought to attach because they were not located in New York and, thus, could not be properly attached. Accordingly, defendants conclude, Supreme Court erred in granting plaintiffs motion to confirm the order of attachment. We find defendants’ arguments unpersuasive.

The provisional remedy of attachment, which is governed by CPLR article 62, operates only against the property of the defendant, not on his/her person. One purpose of attachment is to provide security for a potential judgment against a nonresident debtor. This Court recently stated:

“By means of attachment, a creditor effects the prejudgment seizure of a debtor’s property, to be held by the sheriff!, actually or constructively], so as to apply the property to the creditor’s judgment if the creditor should prevail in court. Attachment simply keeps the debtor away from his property or, at least, the free use thereof; it does not transfer the property to the creditor. It is frequently used when the creditor suspects that the debtor is secreting property or removing it from New York and/or when the creditor is unable to serve the debtor, despite diligent efforts, even though the debtor would be within the personal jurisdiction of a New York court (see CPLR 6201)” (Koehler v Bank of Bermuda Ltd., 12 NY3d 533, 538 [2009]; see Siegel, NY Prac § 313, at 499 [4th ed]).

Although attachment always serves a security function, it can also be used to obtain “quasi in rem” jurisdiction over a defendant not amenable to personal jurisdiction, but with tangible or intangible property in the state (see id.; Douglass v Phenix Ins. Co. of Brooklyn, N. Y., 138 NY 209, 219 [1893] [“(I)t is a fundamental rule that in attachment proceedings the res must be within the jurisdiction of the court issuing the process, in order to confer jurisdiction”]). “This quasi in rem jurisdiction is subject to the due process restrictions outlined by the United States Supreme Court in Shaffer v Heitner (433 US 186 [1977] ;[] see generally Siegel, NY Prac §§ 104, 313, 314 [4th ed])” (Koehler, 12 NY3d at 538). In short, when attachment is used to serve as a jurisdictional predicate, the following black letter principle must be adhered to: “where personal jurisdiction is lacking, a New York court cannot attach property not within its jurisdiction” (id.).

On the other hand, where a court acquires jurisdiction over the person of one who owns or controls property, it is equally well settled that “the court[ ] can compel observance of its decrees by proceedings in personam against the owner within the jurisdiction” (id. at 539). In the case at bar, defendants (the guarantors of the debt under the mezzanine loan) voluntarily submitted to the personal jurisdiction of the court by executing the personal guaranty. This is not a case where attachment was used to confer quasi in rem jurisdiction over a nondomiciliary based on his/her in-state property. This attachment only served a security function (to ensure there would be sufficient money to satisfy a judgment if plaintiff prevailed).

Based on the foregoing, a court with personal jurisdiction over a nondomiciliary present in New York has jurisdiction over that individual’s tangible or intangible property, even if the situs of the property is outside New York (cf. Koehler, 12 NY3d at 539). Because personal jurisdiction was properly asserted over defendants, including defendant Mitchell, Supreme Court had the authority to order prejudgment attachment of the property defendant Mitchell owned and/or controlled, and service of the order upon him while he was in New York was appropriate.

We next consider whether the property sought to be attached was subject to article 62 of the CPLR and relevant case law. CPLR 6202 provides:

“Any debt or property against which a money judgment may be enforced as provided in section 5201 is subject to attachment. The proper garnishee of any such property or debt is the person designated in section 5201; for the purpose of applying the provisions to attachment, references to a ‘judgment debtor’ in section 5201 and in subdivision (i) of section 105 shall be construed to mean ‘defendant.’ ”

Under CPLR 5201 (b), “[a] money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested.” Subdivision (b) “authorizes a judgment creditor to reach for any property interest the judgment debtor may have, whether [real or personal,] tangible or intangible, ‘which could be assigned or transferred’ ” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5201:9, at 67). As relevant here,

“[i]ntangible interests, including money belonging to or owed to the judgment debtor, are subject to levy and are infinite in their variety. Some of these incorporeal interests have economic value so real and so direct that a judgment creditor would prefer them to any kind of tangible property. Others are more remote and take greater effort to reduce to money. Others are so contingent that they may never amount to a thing and hence not even be worth an effort” (Siegel, NY Prac § 487, at 823 [4th ed]).

In our seminal decision ABKCO Indus, v Apple Films (39 NY2d 670 [1976]), this Court considered whether an absent debtor’s intangible contract right to net profits from the future promotion of a film was “debt” or “property” within CPLR 5201, so as to support an attachment for purposes of securing quasi in rem jurisdiction. Although we stated that this right could be treated either as a debt under CPLR 5201 (a) or as property under CPLR 5201 (b), we held that the contract right was property that could be assigned, and therefore attached, even though its value was uncertain. In so holding, we determined that the lack of specific value had “no legal effect on the validity of the attachment” (39 NY2d at 675). Instead, the operative fact was whether the property interest had potential economic value that was worthy of pursuit by the creditor (see id.; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5201:5, at 60-64). In embracing this practical approach, ABKCO Indus, found unnecessary the distinction between “debt” and “property” for purposes of CPLR 5201 (see Alliance Bond Fund, Inc. v Grupo Mexicano De Desarrollo, S.A., 190 F3d 16, 23 [2d Cir 1999] [“ABKCO (Indus.) virtually erases the distinction in § 5201 between ‘debt’ and ‘property’ by re-characterizing—as ‘(p)roperty against which a money judgment may be enforced’—debts that otherwise are placed out of reach by § 5201 (a)’s requirement that the debt being pursued be either past due or certain to become due upon demand”]; see also Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25, 36 [1st Dept 2007]).

Applying a similar analysis in this case, the intangible property plaintiff sought to attach—defendants’ ownership/ membership interests in 22 out-of-state limited liability companies—is akin to intangible contract rights, and is clearly assignable and transferable. Thus, the interests in question are “property” for purposes of CPLR 6202.

We next address whether the property at issue has a New York situs. At the outset, we acknowledge that “[t]he CPLR contains no provision as to the situs of [intangible] property for attachment purposes” (ABKCO Indus., 39 NY2d at 675). We have therefore commented that “[t]he situs of intangibles is in truth a legal fiction” (Severnoe Sec. Corp. v London & Lancashire Ins. Co., 255 NY 120, 123 [1931]). Here, the intangible interests sought to be attached are not evidenced by written instruments, such as certificates or negotiable instruments. If these interests were so evidenced, their situs would be where the written instruments were physically present (see ABKCO Indus., 39 NY2d at 675). Because defendants’ intangible interests are uncertificated, we look to the U.S. Supreme Court’s decision in Harris v Balk (198 US 215 [1905]) for guidance in resolving the “situs” question.

In Harris, the United States Supreme Court held that a Maryland creditor who had a money claim against a North Carolina debtor could attach a debt owed by a North Carolina garnishee to the debtor by serving an order of attachment on the garnishee while he was temporarily in Maryland. Insofar as Harris stands for the principle that the above service was sufficient to obtain quasi in rem jurisdiction over the garnishee who coincidentally happened to be in the state, this principle has been overruled (see Shaffer v Heitner, 433 US 186 [1977]). But Harris also sets forth principles to be used to fix the situs of a debt and these principles remain good law (see Perez v Chase Manhattan Bank, 61 NY2d 460, 469 n 1 [1984]). Since Harris, “the power to enforce or collect a debt has been dependent on the presence of the debtor” (id. at 469)—not the domicile of the debtor. In this regard, the Harris Court stated:

“If there be a law of the state providing for the attachment of the debt, then, if the garnishee be found in that state, and process be personally served upon
him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff, and condemn it, provided the garnishee could himself be sued by his creditor in that state. We do not see how the question of jurisdiction vel non can properly be made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the state where the attachment is issued. Power over the person of the garnishee confers jurisdiction on the courts of the state where the writ issues. If, while temporarily there, his creditor might sue him there and recover the debt, then he is liable to process of garnishment, no matter where the situs of the debt was originally. We do not see the materiality of the expression ‘situs of the debt,’ when used in connection with attachment proceedings. If by situs is meant the place of the creation of the debt, that fact is immaterial. If it be meant that the obligation to pay the debt can only be enforced at the situs thus fixed, we think it plainly untrue. The obligation of the debtor to pay his debt clings to and accompanies him wherever he goes. He is as much bound to pay his debt in a foreign state when therein sued upon his obligation by his creditor, as he was in the state where the debt was contracted”
(Harris, 198 US at 222-223 [emphasis added and citation omitted]).

In short, under Harris, where a creditor seeks to attach a debt (an intangible form of property) solely for security purposes (i.e., the debtor is subject to the court’s personal jurisdiction), the situs of the debt is wherever the debtor is present.

Although the property interests at issue here are not debt, it would be illogical for us to hold that Harris does not apply to defendants’ intangible property interests. As noted, there is no real distinction between “debt” and “property” under CPLR 5201. Further, defendant Mitchell’s status supports application of Harris to the case at bar. Here, the order of attachment was served on defendant Mitchell, who is both subject to the personal jurisdiction of the court and the proper garnishee of defendants’ interests. Just as a debt clings to the debtor when he enters a state other than the state where the debt was incurred, it follows that defendants’ uncertificated ownership

interests, which defendant Mitchell possesses or has custody over, travel with him, and were attachable in New York based on his presence in this state. Our conclusion that the situs of defendants’ property is in New York finds support among the commentators. Professor David D. Siegel stated:

“[A]lmost any kind of assignable interest is leviable today if a New York situs can be found for it. Finding the garnishee is just another way of finding the asset’s ‘situs’: if the garnishee has a New York presence, the debtor’s asset in the garnishee’s hands will usually be found to have a New York situs, too. Where, for example, the garnishee owes the judgment debtor a debt, not represented by a negotiable instrument, the garnishee’s physical presence in New York fixes New York as the situs of the debt. Where the asset being pursued is a claim that the judgment debtor has against the garnishee, the garnishee’s New York presence enables suit on the claim to be brought in New York and thus, again, gives the claim a New York situs” (Siegel, NY Prac § 491, at 835 [4th ed]; see also ABKCO Indus., 39 NY2d at 675).

Based on the foregoing, the Appellate Division majority’s and defendants’ reliance on National Broadway Bank v Sampson (179 NY 213 [1904] [held that the situs of intangible property is the domicile of the debtor; as such, a court cannot obtain jurisdiction by service upon a nonresident debtor who is only temporarily present in New York State]) is misplaced. National Broadway Bank’s restrictive view regarding the situs of intangible property, as evidenced by its holding that the debtor’s domicile serves as the jurisdictional predicate to support an attachment, was overruled in Harris v Balk, and should no longer be cited as authority for determining the situs of intangible property (see Morris Plan Indus. Bank of N.Y. v Gunning, 295 NY 324, 329-330 [1946]). In any event, National Broadway Bank, which was decided over 50 years before the CPLR was enacted, is simply not consonant with CPLR article 62.

Finally, we reject the arguments analogizing defendants’ ownership/membership interests in various limited liability companies to shares of corporate stock. Although both represent ownership interests, the relevant dividing line, under the CPLR’s attachment provisions, is not ownership versus non-ownership, or whether the interests are tangible or intangible.

It is whether the interests are evidenced by written instruments, such as certificates, or not. Corporate shares are typically evidenced by stock certificates. Defendants’ interests, on the other hand, are not evidenced by “ownership” certificates or any other written instrument.

Plaintiff next argues that Supreme Court properly exercised its discretion in appointing a receiver pursuant to CPLR 5228. We agree.

“Upon motion of a judgment creditor . . . the court may appoint a receiver who may be authorized to administer, collect, improve, lease, repair or sell any real or personal property in which the judgment debtor has an interest or to do any other acts designed to satisfy the judgment” (CPLR 5228 [a]; see Matter of Chlopecki v Chlopecki, 296 AD2d 640, 641 [3d Dept 2002]). The appointment of a receiver pursuant to section 5228 (a) is a matter within the court’s discretion (see Drucker v Drucker, 53 Misc 2d 446, 448 [Sup Ct, Special Term, Queens County 1967]). A motion to appoint a receiver should only be “granted . . . when a special reason appears to justify one” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5228:l, at 324). In deciding whether the appointment of receiver is justified, courts have considered the “(1) alternative remedies available to the creditor . . . ; (2) the degree to which receivership will increase the likelihood of satisfaction . . . ; and (3) the risk of fraud or insolvency if a receiver is not appointed” (United States v Zitron, 1990 WL 13278, *1, 1990 US Dist LEXIS 1049, *2 [SD NY, Feb. 2, 1990] [citations omitted]). “A receivership has been held especially appropriate when the property interest involved is intangible, lacks a ready market, and presents nothing that a sheriff can work with at an auction, such as the interest of a psychiatrist/judgment debtor in a professional corporation of which he is a member” (Siegel, NY Prac § 512, at 872 [4th ed]; see Udel v Udel, 82 Misc 2d 882 [NY City Civ Ct 1975]).

Here, plaintiff argues that the appointment of a receiver is warranted due to the complexity of defendants’ intangible ownership interests in various limited liability companies and defendants’ disregard for Supreme Court’s discovery orders (with respect to their finances). Also, there appears to be a danger of insolvency if a receiver is not appointed. Supreme Court noted that plaintiff submitted “extensive documentation that strongly suggests Defendants’ precarious financial condition, and that an identifiable risk exists that Defendants will be unable to satisfy a future judgment.” Further, given the lack of marketability of defendants’ intangible property interests (there is no ready market for them), turning the property over to the sheriff would not be helpful in trying to satisfy the judgment. A receiver has the authority to marshal and, if necessary, liquidate defendants’ interests. Finally, contrary to defendants’ arguments, plaintiff seeks receivership over defendants’ ownership/ membership interests, not the day-to-day operation of a foreign corporation.

Based on the foregoing, Supreme Court did not abuse its discretion in appointing a postjudgment receiver to administer defendants’ intangible personal property for purposes of satisfying plaintiffs outstanding $52 million judgment.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the orders of Supreme Court reinstated, and the certified question answered in the negative.

Judges Ciparick, Graffeo, Read, Smith and Pigott concur; Chief Judge Lippman taking no part.

Order, insofar as appealed from, reversed, etc.

      . In general, a mezzanine loan, which is subordinate to some other obligation (akin to a second mortgage), is secured not by the real property itself, but by stock of or some ownership interest in the company that owns the real property.

      . Under CPLR 6201 (1),
      “[a]n order of attachment may be granted in any action . . . where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when . . . the defendant is a nondomiciliary residing without the state, or is a foreign corporation not qualified to do business in the state.”
      Here, the requirements of CPLR 6201 (1) have been met. Defendants are nondomiciliaries residing outside the state. Further, under the plain terms of the aforementioned guaranty, plaintiff is entitled to full repayment of the loan from the guarantors (defendants) in the form of a money judgment.

      . The sheriff actually levied upon defendants’ interests in 24 out-of-state entities. However, defendant Mitchell asserted he had no affiliation with and no information about one of the entities.

      . CPLR 5201 (c) (1) provides:
      “Where property consists of a right or share in the stock of an association or corporation, or interests or profits therein, for which a certificate of stock or other negotiable instrument is not outstanding, the corporation, or the president or treasurer of the association on behalf of the association, shall be the garnishee.”
      “A ‘garnishee’ is a person who owes a debt to a judgment debtor, or a person other than the judgment debtor who has property in his possession or custody in which a judgment debtor has an interest” (CPLR 105 [i]).

      . CPLR 6212 (a) provides:

      . Under the doctrine of quasi in rem jurisdiction, plaintiff is allowed “to attach any property [defendant] happens to have in New York and use it as a jurisdictional basis. Even if [defendant] is then served outside New York and defaults, the doctrine assures [plaintiff] that a resulting judgment will be good at least to the extent of the seized property” (Siegel, NY Prac § 104, at 184 [4th ed]).

      . The Shaffer Court considered whether the use of prejudgment garnishment against a nonresident debtor, based on the presence of the debtor’s property in the garnishor’s state, was, in and of itself, sufficient to confer in rem jurisdiction over the debtor. The Court held that, absent a showing that the debtor had “minimum contacts” with the garnishor’s chosen forum state, the mere presence of the debtor’s property was insufficient to confer jurisdiction (see 433 US at 208-209).

      . In Koehler, a case involving a certified question from the United States Court of Appeals for the Second Circuit, this Court held that a New York court with personal jurisdiction over a garnishee bank could order the bank to turn over stock certificates located outside New York. In reaching this conclusion, the Court relied, in part, on Appellate Division precedent holding that if a court has jurisdiction over a judgment debtor’s person, it can order delivery of the property the debtor controls, whether located within or without the state (see Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 41 AD3d 25 [1st Dept 2007], lv denied 10 NY3d 705 [2008]; Miller v Doniger, 28 AD3d 405 [1st Dept 2006]; Starbare II Partners v Sloan, 216 AD2d 238 [1st Dept 1995]).