author: Rosenblatt, J.

text:
    [851 NE2d 1143, 818 NYS2d 792]
    Maria Morejon, as Administratrix of the Estate of Fabio Pardo, Deceased, Appellant, v Rais Construction Company et al., Respondents, et al., Defendants.
    Argued March 29, 2006;
    decided May 9, 2006

      POINTS OF COUNSEL

      Philip J. Hoffman, New York City, and Zuller & Bondy, LLP (Thomas L. Bondy of counsel), for appellant.
    I. The Appellate Division erred in failing to follow established and settled precedent that where a defendant fails to rebut an inescapable inference of negligence under the doctrine of res ipsa loquitur, judgment for a plaintiff is appropriate. (Dermatossian v New York City Tr. Auth., 67 NY2d 219; De Leon Lopez v Corporacion Insular de Seguros, 931 F2d 116; People v Eckert, 2 NY2d 126; Wittemann v Sands, 238 NY 434; Gillen v United States, 281 F2d 425; Caraballo v Paris Maintenance Co., 2 AD3d 275; People v Geraci, 85 NY2d 359; Salathiel v State of New York, 96 Misc 2d 72; Matter of Spaid v Liverpool Cent. School Dist., 169 Misc 2d 41; Delacy v Ettrich, 217 AD2d 838.) II. Defendants-respondents Rais Construction Company, Cesar Amadeo Rais and Nora Sanchez waived their objection to the propriety of granting a plaintiff summary judgment based on the doctrine of res ipsa loquitur by opposing the underlying motions without ever raising, and thus preserving, this issue for appeal. (Bingham v New York City Tr. Auth., 99 NY2d 355; Huston v County of Chenango, 253 App Div 56, 278 NY 646; Morales v County of Nassau, 94 NY2d 218; Matter of Edward B., 80 NY2d 458; Gulf Ins. Co. v Kanen, 13 AD3d 579; Mastronardi v Mitchell, 109 AD2d 825; Recovery Consultants v Shih-Hsieh, 141 AD2d 272; Brent-Grand v Megavolt Corp., 97 AD2d 783; Emmer v Emmer, 69 AD2d 850.) III. The trial court’s decision and order dated February 26, 2004 was correctly made and should be reinstalled and affirmed. (Freedman v Chemical Constr. Corp., 43 NY2d 260; Cebula v Bonime, 92 AD2d 856; Detres v New York City Hous. Auth., 271 AD2d 309.)

      Faust Goetz Schenker & Blee LLP, New York City (Erika C. Aljens of counsel), for respondents.
    I. Res ipsa loquitur is not an appropriate basis on which to grant summary judgment to plaintiff. (Mejia v New York City Tr. Auth., 291 AD2d 225; Martinez v City of New York, 292 AD2d 349; Dermatossian v New York City Tr. Auth., 67 NY2d 219; Foltis, Inc. v City of New York, 287 NY 108; Kambat v St. Francis Hosp., 89 NY2d 489; Farina v Pan Am. World Airlines, 116 AD2d 618; Salter v Deaconess Family Medicine Ctr., 267 AD2d 976; Horowitz v Kevah Konner, Inc., 67 AD2d 38; Smith v Moore, 227 AD2d 854; O’Connor v 72 St. E. Corp., 224 AD2d 246.) II. Plaintiff-appellant has failed to establish that she was entitled to summary judgment to warrant reversal. (Ziecker v Town of Orchard Park, 75 NY2d 761; Horth v Mansur, 243 AD2d 1041.) III. Plaintiff-appellant’s allegations that defendants-respondents failed to preserve the issues on appeal are without merit. (Bingham v New York City Tr. Auth., 99 NY2d 355.)

      Fiedelman & McGaw, Jericho (Andrew Zajac, Dawn C. DeSimone, Roña L. Platt and Brendan T. Fitzpatrick of counsel), for Defense Association of New York, Inc., amicus curiae.
    Plaintiffs are not entitled to summary judgment where their entire claim is based upon res ipsa loquitur. (Nicklas v Tedlen Realty Corp., 305 AD2d 385; St. Paul Fire & Mar. Ins. Co. v City of New York, 907 F2d 299; Eaton v New York Cent. & Hudson Riv. R.R. Co., 195 NY 267; Cooke v Bernstein, 45 AD2d 497; Johnson v United States, 333 US 46; San Juan Light & Transit Co. v Requena, 224 US 89; Sweeney v Erving, 228 US 233; Jesionowski v Boston & Maine R. Co., 329 US 452; Dermatossian v New York City Tr. Auth., 67 NY2d 219; Kambat v St. Francis Hosp., 89 NY2d 489.)
   OPINION OF THE COURT

Rosenblatt, J.

In a personal injury or property damage case, it is plaintiffs burden to prove defendant negligent. Occasionally, however, a plaintiff to whom the defendant owes a duty of care is not in a position to prove directly what actually happened or that a specific act of the defendant was negligent. In a proper case, under the doctrine of res ipsa loquitur, the law allows a jury to consider the circumstantial evidence and infer that the defendant was negligent in some unspecified way. (See generally Kambat v St. Francis Hosp., 89 NY2d 489 [1997].

On this appeal, we address defendants’ assertion — supported by the Appellate Division — that circumstantial evidence (res ipsa) may never justify summary judgment for the plaintiff. We conclude that, while there is no rule or policy absolutely foreclosing that possibility, it should be a rare event. Here, open questions of fact remain.

I.

Plaintiff, on behalf of the estate of Fabio Pardo, sued defendant Rais Construction Company, alleging that Pardo was fatally injured while delivering building materials to Rais Construction for a job it was doing at the residence owned by Barry and Susan Kleinman in Nassau County.

At their depositions, Alejandro and Maria Pardo (Fabio’s brother and sister-in-law) testified that Rais had engaged Fabio to pick up boxes from a hardware store and deliver them to the Kleinman house the morning of December 26, 1998, a Saturday. They claimed that they accompanied Fabio to the site, where a roll of roofing material fell from the roof and hit him on the head. They testified that a man at the house opened the door but neither Maria nor Alejandro could identify him, nor did they tell him that there had been an accident. Further, Maria acknowledged that Fabio did not seek any medical treatment for the injury until the end of February 1999. In his deposition, Cesar Rais testified that he never left roofing materials on the Kleinmans’ roof, implying that none were there on December 26. Rais also testified that his crew stopped work at the site three days before the incident. Barry Kleinman supported Rais’s assertions.

Rais further stated that he did not engage Fabio to do any work on the day in question or even during the previous several weeks, having let him go weeks before out of concern that Fa-bio’s extreme headaches were posing a safety problem for Fabio and others. Rais added that it was not until April of 1999 that he was told about the alleged accident. Barry Kleinman testified that he was at the house the afternoon of December 26, 1998 and saw no evidence of work being done. He said it had snowed the day before and there were no tracks or disturbances in the fresh snow.

In resisting plaintiff’s motion for summary judgment, defendants argued that there were disputed questions of fact, including whether the accident had even occurred. Supreme Court initially denied the motion but on reargument granted plaintiff summary judgment against the Rais defendants on the basis of res ipsa loquitur. The Appellate Division reversed, stating that res ipsa loquitur “may not be used as the basis for granting summary judgment in favor of a plaintiff on the issue of liability” (18 AD3d 632, 633 [2d Dept 2005]). Because there are questions of fact precluding summary judgment for the plaintiff, we affirm. We disagree, however, with the Appellate Division’s statement that res ipsa loquitur may never serve as a basis for granting a plaintiff summary judgment.

II.

In addressing the procedural role of res ipsa loquitur, it is useful to examine the development of the doctrine itself. This Court used the term “res ipsa loquitur” for the first time in Mullen v St. John (57 NY 567, 570 [1874]), in which a part of a building fell on the plaintiff. “Buildings properly constructed do not fall without adequate cause,” we said. (Id. at 569.)

“If there be no tempest prevailing or no external violence of any kind, the fair presumption is, that the fall occurred through adequate causes, such as the ruinous condition of the building, which could scarcely have escaped the observation of the owner. The mind is thus led to a presumption of negligence on his part, which may, of course, be rebutted. In the absence of explanatory evidence, negligence may be presumed.” (57 NY at 569-570.)

Citing an English case (Kearney v London, Brighton, & S. Coast Ry. Co., 1869-1870 LR [5 QB] 411 [1870]), the Court expressly espoused the doctrine of res ipsa loquitur, and upheld the judgment for plaintiff based on the jury’s verdict. After Mullen, and for about 30 years, the Court heard a number of res ipsa loquitur cases and was almost uniformly inhospitable to the plaintiffs or the doctrine. Slowly thereafter, res ipsa loquitur gained general acceptance with us,® but there was some confusion over the doctrine’s procedural effects. Courts, including ours, used “prima facie case,” “presumption of negligence” and “inference of negligence” interchangeably even though the phrases can carry different procedural consequences. One case went so far as to use all three interchangeably.

In Foltis, Inc. v City of New York (287 NY 108 [1941]), a pivotal case, we reversed the grant of a directed verdict for the plaintiff. The Court emphasized that when dealing with res ipsa loquitur, the indiscriminate use of the terms “presumption” and “inference” caused procedural problems. The Court held that res ipsa loquitur does not create a presumption of negligence against the defendant. Rather, the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent. The Court went on to state that res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiffs circumstantial evidence is unrefuted.

We stand by those principles, and in the context of this appeal, reaffirm that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiffs circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.

Drawing on a number of cases that had fashioned the criteria for res ipsa loquitur, and relying on Prosser, the Court listed these criteria in Corcoran v Banner Super Mkt. (19 NY2d 425 [1967]):

“(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (19 NY2d at 430, quoting Prosser, Torts § 39, at 218 [3d ed].)

Our more recent decisions have generally followed this formulation (see e.g. States v Lourdes Hosp., 100 NY2d 208 [2003]; Kambat v St. Francis Hosp., 89 NY2d 489 [1997]), and the case at hand gives us no reason to change it. We have not, however, discussed the summary judgment or directed verdict aspects of the doctrine in the 65 years since Foltis. Over the last century, the Appellate Division has held barely more than a dozen times that a plaintiff is entitled to summary judgment or a directed verdict in res ipsa loquitur cases. An approach that sparing is consistent with Foltis, and in accord with the treatise commentators.

Since Foltis, our courts have grown more sensitive to the differences between inferences and presumptions, recognizing that terminology can carry varying procedural implications. But the line is sometimes blurry, and on occasion, courts have still referred to res ipsa loquitur as creating a presumption, as opposed to an inference, of negligence. Indeed, Wigmore has characterized res ipsa loquitur as raising a presumption of negligence, as have a number of courts in other jurisdictions. The difficulty in applying a presumption or an inference has generated some criticism in an analogous setting (see Allen, Presumptions, Inferences and Burden of Proof in Federal Civil Actions — An Anatomy of Unnecessary Ambiguity and a Proposal for Reform, 76 Nw U L Rev 892 [1982]) and one author has listed eight ways in which courts have used the term “presumption.”

In our own taxonomy in other contexts, we speak of “presumption[s] of law” (Matter of Buccini v Paterno Constr. Co., 253 NY 256, 259 [1930]), “presumption[s] of fact” (Myers v Bartholomew, 91 NY2d 630, 636 [1998]), “conclusive presumption [s]” (Cornell Univ. v Bagnardi, 68 NY2d 583, 594, 595 [1986]), “rebuttable presumption[s]” (Williams v City of New York, 2 NY3d 352, 366 [2004]), “conflicting presumptions” (Palmer v Palmer, 162 NY 130, 133 [1900]) and “statutory presumption[s]” (DeJesus v DeJesus, 90 NY2d 643, 652 [1997]). Perhaps even more unsettling, we also hear of “mandatory inference[s]” (West v Nabors Drilling USA, Inc., 330 F3d 379, 385 [5th Cir 2003]), “presumptive inference[s]” (Matter of Hines v New York City Hous. Auth., 67 AD2d 1000, 1001 [2d Dept 1979]) and “permissive presumption[s]” (County Court of Ulster Cty. v Allen, 442 US 140, 157 [1979]). In United States v Gainey (380 US 63, 78 [1965] [dissenting op]), Justice Black stated that “[i]n its simplest form a presumption is an inference permitted or required by law . . . .”

In most of the post-Foltis res ipsa loquitur cases cited, the courts would likely have reached the same result whether by way of inference or presumption or some other word or phrase. We adhere, nevertheless, to our jurisprudence, in which we denominate res ipsa loquitur as creating an inference (as defined in this writing and our case law [e.g. Kambat, supra]).

Conclusion

The dizzying array of formulations (from mandatory inferences to permissive presumptions), however, suggests that things would be far less complicated if we viewed the res ipsa loquitur/summary judgment issue without undue emphasis on labels and pigeonholes. Res ipsa loquitur is a phrase that, perhaps because it is in Latin, has taken on its own mystique, although it is nothing more than a brand of circumstantial evidence. Viewed in that light, the summary judgment (or directed verdict) issue may also be properly approached by simply evaluating the circumstantial evidence. If that evidence presents a question of fact as to the defendant’s liability under the Kambat/Corcoran test for res ipsa loquitur, the case should go to trial. If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law. Alternatively, as we have said, the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination. This is not such a case. Here, there are material questions of fact for trial.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.

      . See also Dermatossian v New York City Tr. Auth. (67 NY2d 219, 226 [1986]); Restatement (Third) of Torts: Liability for Physical Harm § 17 (Tentative Draft No. 1, Mar. 28, 2001); Prosser and Keeton, Torts, at 258 (5th ed 1984); Dobbs, Torts, at 370 (2001); PJI3d 2:65 (2006).

      . The motion court dismissed the complaint against the Kleinmans, who are not involved in this appeal, leaving defendants Rais Construction Company, and its principals Cesar Rais and Nora Sanchez (the Rais defendants).

      . Note that the Court spoke of a “presumption of negligence.” More about this later.

      . In J. Russell Mfg. Co. v New Haven Steamboat Co. (50 NY 121 [1872]), decided two years before Mullen, the Court reached a similar result without using the term “res ipsa loquitur,” concluding that the trial court erred in directing a verdict for the defendant. For an English case even earlier than Kearney, see Byrne v Boadle (2 H & C 722, 159 ER 299 [1863]), perhaps the first of the genre. For a discussion of the historical context in which the doctrine developed, see Witt, Toward a New History of American Accident Law: Classical Tort Law and the Cooperative First Party Insurance Movement (114 Harv L Rev 690, 772-773 [2001]).

      . (Wiedmer v New York El. R.R. Co., 114 NY 462 [1889]; Cosulich v Standard Oil Co., 122 NY 118 [1890]; Flinn v New York Cent. & Hudson Riv. R.R. Co., 142 NY 11 [1894]; Loudoun v Eighth Ave. R.R. Co., 162 NY 380 [1900]; Kay v Metropolitan St. Ry. Co., 163 NY 447 [1900]; Wolf v American Tract Socy., 164 NY 30 [1900]; Griffen v Manice, 166 NY 188 [1901]; Welsh v Cornell, 168 NY 508 [1901]; Crowley v Rochester Fireworks Co., 183 NY 353 [1906]; Duhme v Hamburg-American Packet Co., 184 NY 404 [1906]; Cunningham v Dady, 191 NY 152 [1908]; Robinson v Consolidated Gas Co. of N.Y., 194 NY 37 [1909]; Henson v Lehigh Val. R.R. Co., 194 NY 205 [1909]; Ferrick v Eidlitz, 195 NY 248 [1909]; Eaton v New York Cent. & Hudson Riv. R.R. Co., 195 NY 267 [1909]; Conyes v Oceanic Amusement Co., 202 NY 408 [1911]; Hardie v Boland Co., 205 NY 336 [1912]). In Hogan v Manhattan Ry. Co. (149 NY 23 [1896]), the Court affirmed a judgment, based on a jury verdict, for a plaintiff who was hit by an iron bar that fell from an elevated railway, but did not use the phrase “res ipsa loquitur.” Rosenstein v Vogemann (184 NY 325 [1906]) may also qualify as an exception to the Court’s seeming resistance to res ipsa loquitur during that era.

      . See e.g. Newell v Brooklyn Bus Corp. (280 NY 650 [1939]) (affirming verdict for plaintiff with no opinion); Bressler v New York R.T. Corp. (277 NY 200 [1938]); Lessig v New York Cent. R.R. Co. (271 NY 250 [1936]); Tortora v State of New York (269 NY 167 [1935]); Solko v Hay Foundry & Iron Works, Inc. (245 NY 554 [1927]) (affirming verdict in favor of the plaintiff without opinion); Pierson v Interborough R.T. Co. (227 NY 666 [1920]) (affirming verdict in favor of the plaintiff without opinion).

      . (Plumb v Richmond Light & R.R. Co., 233 NY 285 [1922].) A contemporary law review article described the confusion that arises from the failure to use the three terms distinctively (Rosenthal, The Procedural Effects of Res Ipsa Loquitur in New York, 22 Cornell L Q 39 [1936]).

      . See Thomas v New York Univ. Med. Ctr., 283 AD2d 316 (1st Dept 2001); Salter v Deaconess Family Medicine Ctr. (appeal No. 2), 267 AD2d 976 (4th Dept 1999); Harmon v United States Shoe Corp., 262 AD2d 1010 (4th Dept 1999); O’Connor v 72 St. E. Corp., 224 AD2d 246 (1st Dept 1996); Smith v Moore, 227 AD2d 854 (3d Dept 1996); Dillenberger v 74 Fifth Ave. Owners Corp., 155 AD2d 327 (1st Dept 1989); Farina v Pan Am. World Airlines, 116 AD2d 618 (2d Dept 1986); Cebula v Bonime, 92 AD2d 856 (2d Dept 1983); Lippman v State of New York, 83 AD2d 700 (3d Dept 1981); Notice v Regent Hotel Corp., 76 AD2d 820 (1st Dept 1980); Horowitz v Kevah Konner, Inc., 67 AD2d 38 (1st Dept 1979); Derrell v Nassau County Med. Ctr., 73 AD2d 682 (2d Dept 1979); Richard Equip. Corp. v Manhattan Indus. Contr. Co., 9 AD2d 691 (2d Dept 1959); see also Restatement (Third) of Torts: Liability for Physical Harm § 17, Reporters’ Note, Comment j (Tentative Draft No. 1, Mar. 28, 2001) (“[0]n some occasions the force of circumstantial evidence can be such as to call for a directed verdict for the plaintiff’).

      . See Prosser and Keeton, Torts, at 258 (5th ed 1984); Restatement (Third) of Torts: Liability for Physical Harm § 17, Reporters’ Note, Comment j (Tentative Draft No. 1, Mar. 28, 2001); see generally Glenn, Res Ipsa Loquitur as Ground for Direction of Verdict in Favor of Plaintiff , 97 ALR2d 522 (1964).

      . See generally Prosser, The Procedural Effect of Res Ipsa Loquitur, 20 Minn L Rev 241 (1936).

      . See e.g. Rountree v Manhattan & Bronx Surface Tr. Operating Auth., 261 AD2d 324 (1st Dept 1999); Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068 (4th Dept 1999); Stanski v Ezersky, 228 AD2d 311 (1st Dept 1996).

      . See 9 Wigmore, Evidence § 2508, at 375; § 2509 (3d ed 1940); see e.g. Cox v Paul, 828 NE2d 907, 912 (Ind 2005) (“Res ipsa loquitor, in some circumstances, merely permits the trier of fact to infer negligence. In others, it may function ‘as a rule of policy which goes beyond the probative effect of circumstantial evidence, and requires the defendant to explain the event of circumstantial evidence or be liable.’ If so, res ipsa loquitor may be ‘given a greater procedural effect’ by shifting the burden of proof to the defendant or creating a presumption of negligence” [citations omitted]); Woodard v Custer, 473 Mich 1, 6 n 2, 702 NW2d 522, 525 n 2 (2005) (“ ‘Res ipsa loquitur’ is the ‘[r]ebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant’s exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence’ ” [citation omitted]); Palmer v Clarksdale Hosp., 206 Miss 680, 698, 40 So 2d 582, 586 (1949) (“the doctrine of res ipsa loquitur does not in any instance create a case of absolute liability, but simply raises a presumption or makes out a prima facie case of negligence to the extent that the defendant is called upon to meet it with an explanation”).

      . See 2 McCormick, Evidence § 342, at 433 (5th ed 1999), citing Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich L Rev 195, 196-207 (1953).

      . See Grady, Res Ipsa Loquitur and Compliance Error, 142 U Pa L Rev 887, 913 (1994) (“The traditional consensus is that the doctrine, though a substantive one of tort, applies to cases in which the plaintiff possesses only circumstantial evidence that the defendant’s negligence caused her injury”).


source: Caselaw Access Project

author: Per Curiam. G.B. Smith, J.

license: Public Domain

text:
    [851 NE2d 1175, 818 NYS2d 824]
    In the Matter of Laura D. Blackburne, a Justice of the Supreme Court, Queens County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 2, 2006;
    decided June 13, 2006

      POINTS OF COUNSEL

      Godosky & Gentile, P.C., New York City {David M. Godosky and Richard Godosky of counsel), for petitioner.
    I. This Court exercises plenary and de novo review of the Commission on Judicial Conduct’s determination. (Matter of Quinn v State Commn. on Jud. Conduct, 54 NY2d 386.) II. The Commission on Judicial Conduct erred in determining that petitioner violated section 100.2 (C) of the Rules of Judicial Conduct (22 NYCRR). (Matter of Levine, 74 NY2d 294; Matter of Kiley, 74 NY2d 364; Matter of Assini, 94 NY2d 26; Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349; Matter of Gibbons, 98 NY2d 448.) III. The Court of Appeals has never removed a judge for a single act of misconduct where such conduct was not based upon a breach of trust, corruption or moral turpitude or where there was no venal or racial motive. (Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349; Matter of Esworthy, 77 NY2d 280; Matter of Watson, 100 NY2d 290; Matter of Scacchetti v State Commn. on Jud. Conduct, 56 NY2d 980; Matter of Levine, 74 NY2d 294; Matter of Cerbone, 61 NY2d 93; Matter of Reedy, 64 NY2d 299; Matter of Heburn, 84 NY2d 168; Matter of Benjamin, 77 NY2d 296; Matter of Gibbons, 98 NY2d 448.) IV Removal of petitioner would be inconsistent with prior determinations of the Commission on Judicial Conduct and decisions of this Court. (Matter of Kiley, 74 NY2d 364; Matter of Edwards, 67 NY2d 153.)

      Robert H. Tembeckjian, New York City, and Alan W. Friedberg for respondent.
    Petitioner’s misconduct was egregious and warrants her removal from judicial office. (Matter of Gibbons, 98 NY2d 448; Matter of Perry, 53 AD2d 882; Matter of Scacchetti v State Commn. on Jud. Conduct, 56 NY2d 980; Matter of Cerbone, 61 NY2d 93; Matter of Reedy, 64 NY2d 299; Matter of Levine, 74 NY2d 294; Matter of Benjamin, 77 NY2d 296; Matter of Heburn, 84 NY2d 168; Matter of Cohen [State Commn. on Jud. Conduct], 74 NY2d 272; Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349.)

      Mayer, Brown, Rowe & Maw LLP, Chicago, Illinois {Jeffrey W. Sarles of counsel, admitted pro hac vice), for National Association for the Advancement of Colored People, amicus curiae.
    I. The removal sanction imposed by the Commission on Judicial Conduct is unprecedented and does not fit the offense. (Matter of Levine, 74 NY2d 294; Matter of Reedy, 64 NY2d 299; Matter of Kiley, 74 NY2d 364; Matter of LaBelle, 79 NY2d 350; Matter of Skinner, 91 NY2d 142.) II. The Commission on Judicial Conduct’s removal order appears to reflect a capitulation to public pressure and thereby threatens judicial independence. III. The unduly harsh sanction imposed by the Commission on Judicial Conduct is of particular concern to the civil rights community. (Batson v Kentucky, 476 US 79.)

      Joseph F. DeFelice, Kew Gardens, and Cheree A. Buggs for Queens County Bar Association and others, amici curiae.
    I. The conduct of Justice Blackburne, a jurist with a previously unblemished record, warrants censure but not removal. (Matter of Gibbons, 98 NY2d 448; Matter of Lonschein, 50 NY2d 569; Matter of Cunningham, 57 NY2d 270; Matter of Esworthy, 77 NY2d 280; Matter of Cohen [State Commn. on Jud. Conduct], 74 NY2d 272; Matter of Kiley, 74 NY2d 364; Matter of Bauer, 3 NY3d 158; Matter of Reeves, 63 NY2d 105; People v Miller, 54 NY2d 616; People v Gehy, 238 AD2d 354.) II. Sanction of removal would deprive Queens County of a competent and experienced judge.

      Hinman Straub PC., Albany (David W. Novak of counsel), for Association of Justices of the Supreme Court of the State of New York, amicus curiae.
    In the context of Justice Blackburne’s entire legal career, her single error of judgment does not warrant removal from the bench. (Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349; Matter of Schilling, 51 NY2d 397; Matter of Watson, 100 NY2d 290.)
   OPINION OF THE COURT

Per Curiam.

In June 2004, petitioner was presiding over the Queens Treatment Court, a specialized court in which nonviolent felons with a history of addiction can avoid incarceration by undergoing drug treatment. During the course of their treatment regimen, defendants must appear frequently before the court for supervision and monitoring. Among the cases on petitioner’s June 10 calendar was that of defendant Derek Sterling, who was then receiving court-mandated treatment at a residential drug treatment program.

At approximately 10:00 a.m., Detective Leonard Devlin appeared at the Queens Treatment Court for the purpose of arresting defendant Sterling, whom the detective — as a result of a police investigation — believed had committed a serious robbery and assault. Upon his arrival, Devlin spoke to a court officer, Sergeant Richard Peterson, and explained that he wanted to question Sterling in connection with a robbery. As he later testified, Peterson understood from this that the detective intended to take the defendant into custody. Petitioner was not present in the courtroom during this exchange.

Because Sterling’s case still needed to be called on the Treatment Court calendar, Detective Devlin went out into the hallway to await the conclusion of court proceedings. Meanwhile, Peterson went to see petitioner in her chambers, and told her that a detective had arrived to question Sterling in connection with a robbery. Petitioner appears to have mistakenly believed that such questioning would not involve taking the defendant into custody. Petitioner instructed the sergeant to notify Sterling’s attorney to appear, and to advise the detective not to question the defendant in counsel’s absence.

Because Sterling’s assigned counsel was unavailable, court personnel arranged for another attorney, Warren Silverman, to appear in Sterling’s behalf. Silverman arrived while the court was in session, although Sterling’s case had not yet been called. Upon speaking with the detective, Silverman learned that the defendant was to be arrested, not merely questioned.

Silverman reentered the courtroom and spoke with petitioner, advising her that the detective intended to arrest the defendant but declined to inform Silverman as to the nature of the charges. Responding that she was going to have Sterling taken out of the courtroom and out of the building through a side entrance, petitioner called Sergeant Peterson to the bench and directed him to take Sterling out through the back stairwell at the end of the calendar call. Inasmuch as the back area consisted of a secure hallway used by judges, jurors and court staff, and its stairwell led out to the judges’ parking lot, Sergeant Peterson was “stunned.” Concerned that he could get in trouble for either following or not following petitioner’s instruction, he discussed the matter with another court officer and with Assistant District Attorney Sharon Scott Brooking. After inquiring of Scott Brooking whether following petitioner’s direction might constitute an obstruction of justice, the sergeant approached petitioner again, stated that he was “uneasy” about her directive, and asked her to speak to the prosecutor.

At the bench, Scott Brooking advised petitioner that having the defendant taken out through the back would be inappropriate and that, as a matter of policy, defendants should be arrested at court — not at their treatment programs — since they are encouraged to feel safe at the treatment programs. Petitioner responded that she was insulted that the detective, whose actual intention was to make an arrest, had entered the courtroom under the “ruse” of merely questioning Sterling. At no time did petitioner attempt to speak directly to the detective — who remained outside the courtroom — either to confront him with her belief that he had deliberately created a false impression, or to clarify that, in fact, his intent had always been to arrest the defendant, as the sergeant to whom he had spoken had understood. Rather, she presumed from what she took to be conflicting secondhand reports by Peterson and Silverman as to the detective’s intentions that Devlin had actually provided two inconsistent accounts of his true purpose in looking for Sterling.

When the defendant’s case was called, petitioner — in open court but outside the presence of the detective — stated:

“Mr. Sterling, I don’t know what else is going on. That’s why I asked Mr. Silverman to be here to represent you. I understand that there is a detective on the premises who has some reason to believe that he ought to arrest you. I’m not going into that. That’s not before me at this time. It is my hope that, whatever the issue is, it’s not something that’s going to [a]ffect your ability to continue in this program. I have directed that you be escorted out of the building by Sgt. Peterson because I — and I’m putting this on the record — specifically, I resent the fact that a detective came to this court under the ruse of wanting to ask questions when, in fact, he had it in his head that he wanted to arrest you. If there is a basis for him arresting you, he will have to present that in the form of a warrant. And it may occur at your program. I’m not saying it won’t. But what I am saying to you is that if you go back to your program and you do everything you are supposed to do at your program, if they appear with a legitimate warrant for your arrest then you follow that. I’m not trying to keep you from being arrested. I’m trying to keep you from being arrested today in my courtroom based on obvious misrepresentation on the part of the detective.”

At the conclusion of the proceeding, Sergeant Peterson approached petitioner, again told her that he felt uneasy, and expressed his concern that her direction amounted to an obstruction of justice. Petitioner interrupted him and, while starting to stand up at the bench, stated that he had been given an instruction and that if he did not take Sterling out through the back exit, she would do so herself. Concluding that he, rather than petitioner, should escort the defendant so as not to compromise petitioner’s safety or the safety of other judges, Peterson replied that he would do it. He then escorted Sterling out the side doorway, through the secure hallway and stairwell, and out the door to the parking lot.

When the detective learned that Sterling had left through a back exit, he hurried out the front door to try to locate him, but was unsuccessful. Sterling was arrested the following day at his drug treatment program and charged with robbery and assault. The charges against him were ultimately dismissed.

After receiving complaints from various parties, the Commission on Judicial Conduct began an investigation, at the conclusion of which it served petitioner with a formal written complaint containing one charge of judicial misconduct. After a hearing, Honorable Ernst H. Rosenberger, as Referee, determined that petitioner had failed to uphold the integrity and independence of the judiciary by failing to observe high standards of conduct, in violation of section 100.1 of the Rules of Judicial Conduct (22 NYCRR); failed to avoid impropriety and the appearance of impropriety in that she failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of section 100.2 (A) of the Rules of Judicial Conduct; and failed to perform the duties of judicial office impartially and diligently in that she failed to be faithful to the law and to maintain professional competence in it, in violation of section 100.3 (B) (1) of the Rules of Judicial Conduct. The Referee further concluded that petitioner’s testimony revealed “a person who, while conceding that she has done something wrong, and stating that she would now do things differently, nonetheless seeks to minimize her responsibility.”

After hearing oral argument, the Commission determined that petitioner had violated each of the rules cited in the formal written complaint — including that unaddressed by the Referee — and unanimously sustained the charge of judicial misconduct. Eight Commissioners voted for removal, two for censure. Petitioner now requests review by this Court of the Commission’s determination.

Discussion

Conceding the impropriety of her conduct, petitioner devotes her argument to sanction, asserting that censure, not removal, is the appropriate remedy. Petitioner maintains that her actions, while improper, were motivated by a desire to protect the integrity of the Treatment Court, whose success rests on honesty and forthrightness. In this regard, petitioner testified that she believed at the time that had she permitted Detective Devlin to arrest the defendant, it would have appeared as if the court were complicit in the detective’s “ruse,” which would in turn have undermined the trust between the Treatment Court and its participants that is essential to the court’s effectiveness. The Commission found, however, that petitioner acted out of anger and annoyance at the detective, who had, she believed, insulted her.

In any event, petitioner contends that a judge ought not to be removed from office for a single act of bad judgment, unless the misconduct involved venality, breach of trust, moral turpitude or personal gain. In pressing such a rule, petitioner catalogs each of our prior cases involving single acts of misconduct, noting that in one case there was venality; in another, corruption; and so forth. From this she concludes that only those fact patterns that have previously been the subject of disciplinary proceedings can justify removal. But we have never implied that removal is limited to those categories of cases that have formerly come before us. Judicial misconduct cases are, by their very nature, sui generis. That until now no judge has thought to prevent the lawful arrest of a suspected felon cannot shield petitioner from the necessary consequence of her actions.

Although petitioner maintains that removal here would be unprecedented, in Matter of Gibbons (98 NY2d 448 [2002]) we removed a judge who, after signing a search warrant authorizing the search of a company’s premises for environmental violations, notified the company’s attorney of the impending search. There, as here, the judge “jeopardized the very legal system he was duty-bound to protect and administer” (98 NY2d at 450). Under those circumstances, we determined that removal was the proper sanction despite the Referee’s finding that Judge Gibbons’s single act of misconduct may have been motivated not out of any desire to impede the lawful execution of the search warrant, but rather simply out of anger at the company’s alleged behavior. In any event, we reject petitioner’s argument that she should not be removed because removal would be unprecedented. Petitioner’s conduct was unprecedented. We know of no instance in which a judge has facilitated the escape of an accused violent felon.

Nor can petitioner’s misconduct be properly deemed to have consisted of only a single, unconsidered act. Petitioner acted out of anger and pique that she had, she mistakenly thought, been lied to. Even assuming that her initial mistake was reasonable — although Sergeant Peterson well understood that a detective who showed up in court looking to “question” a defendant in connection with a pending charge meant to take that defendant into custody, rather than question him in the courthouse— petitioner made no effort to clarify the situation. Rather than attempting to speak directly to the detective, she jumped immediately to an erroneous conclusion based on what she took to be two different accounts, from two different people, of what the detective had indicated.

Moreover, petitioner was given at least two chances to reconsider her position, having been specifically advised by both the sergeant and the prosecutor that her direction was, to say the least, problematic. But instead of availing herself of these opportunities, petitioner worsened her misconduct by refusing to take seriously Sergeant Peterson’s concern that he would be committing an obstruction of justice if he followed her directive. Nor was Peterson the only person endangered by petitioner’s intransigence. Unconcerned that she might be putting her court officer at risk of legal jeopardy, petitioner’s rash and reckless decision to release onto the street a suspected violent felon potentially posed a danger to the public. That the defendant returned peacefully to his drug treatment program, and in the end turned out not to have committed the crime of which he was then suspected, in no way redounds to petitioner’s credit. Things might easily have turned out otherwise.

In impeding the legitimate operation of law enforcement by helping a wanted robbery suspect to avoid arrest, petitioner placed herself above the law she was sworn to administer, thereby bringing the judiciary into disrepute and undermining public confidence in the integrity and impartiality of her court. Although “removal is not normally to be imposed for poor judgment, even extremely poor judgment” (Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349, 356 [1984]), petitioner’s dangerous actions exceeded all measure of acceptable judicial conduct. By interposing herself between the defendant and the detective, petitioner abandoned her role as neutral arbiter, and instead became an adversary of the police. This is completely incompatible with the proper role of an impartial judge.

Accordingly, the determined sanction should be accepted, without costs, and petitioner removed from the office of Justice of the Supreme Court, Queens County.

G.B. Smith, J.

(dissenting). I agree with the Commissioners who dissented from the decision to remove Justice Laura Blackburne from the bench and voted for censure. I thus dissent from the ruling of the majority.

Commissioner Coffey stated:

“The decision reached by the majority in this matter is unprecedented and I believe unwarranted. The mistake made by the respondent, while wrong and while sanctionable, was in all respects a classic case of an error of judgment, which we as a Commission historically have been very cautious in criticizing. For a single error of judgment, in the absence of a breach of trust, to result in removal from office is unduly harsh.”

Commissioner Emery stated:

“The removal of Justice Laura Blackburne is both unprecedented and unfair. It is unprecedented because, until this case, neither this Commission nor the Court of Appeals has ever removed a judge based on a single event of misconduct, no matter how egregious, unless the misconduct was based upon breach of trust, venal conduct, moral turpitude or personal gain for the judge. It is unfair because this Commission is imposing career capital punishment upon an experienced, highly-respected and accomplished jurist, with an unblemished disciplinary history, who, indisputably, is unlikely to engage in this type of misconduct again.”

On June 10, 2004, Justice Blackburne was informed that a police officer was present who wished to speak with a defendant who had been referred to a drug treatment program. She was subsequently informed that the officer was there to arrest the defendant. She was not informed what the arrest was for. She directed a court officer to escort the defendant from the courthouse to avoid being arrested in the court. She stated on the record that she was not trying to prevent the arrest but was acting because she felt that she had been misled.

A public outcry arose over the action, including statements from Governor Pataki and Mayor Bloomberg.

On the day following the incident, the Patrolmen’s Benevolent Association filed a complaint with the Commission on Judicial Conduct. Eventually, a hearing was held before a Referee, former Appellate Division Justice Ernst Rosenberger. He concluded that the petitioner had violated several sections of the Rules of Judicial Conduct. The Commission then voted, 8 to 2, to remove Justice Blackburne from the bench.

On December 1, 2004, during the direct examination of Justice Blackburne, she responded this way to the incident of June 10, 2004:

“Q. Well, let me ask you this: As you sit here today and reflecting back on that day and what occurred, how do you feel about it today if that had occurred again? If it were to occur today in the same courtroom, what would you do?
“A. I would have had a conference with the district attorney different from the conference that I had. I would have slowed it down and had even the officer come in and put something on the record. I would have asked my clerk to speak to the officer to find out what this was about for two reasons: One, first and foremost, if it was a felony arrest — and, at that point, I never knew what the arrest was for — but if it was for a felony, then, that would have had implications for Mr. Sterling’s continued participation in the program. So that there were a number of things that I should have done at that time that I did not do.
“Q. On that day, on June 10th, did you feel remorseful about what had happened?
“A. Remorseful? . . .
“Q. How did you feel that day, later that evening, reflecting on what occurred?
“A. I felt remorseful. I felt ashamed, and I was angry at myself for having acting [sic] precipitously.
“Q. Let me ask you this: From that day — After that occurs, from that day on till the present day, have you ever said to anyone you did the right thing?
“A. Oh, certainly not.
“Q. You felt it was the wrong thing. Correct?
“A. Yes.”

The Referee, a respected former Justice of the Appellate Division, found that Justice Blackburne had violated several provisions of the Rules of Judicial Conduct. The violations were of the following sections:

“Section 100.1 A judge shall uphold the integrity and independence of the judiciary
“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Part are to be construed and applied to further that objective.”
“Section 100.2 A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities
“(A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
“Section 100.3 A judge shall perform the duties of judicial office impartially and diligently . . .
“(B) Adjudicative responsibilities
“(1) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism.”

The Commission also determined that Justice Blackburne had violated these sections.

The action by Justice Blackburne was wrong and sanction-able. There is no dispute, however, that Justice Blackburne did not act for personal gain or for venal reasons.

Over the years, this Court and the Commission have removed a number of persons from the bench. Not until this case, however, has a judge ever been removed for one act of bad judgment. In this case, the Commission relies most strongly on Matter of Gibbons (98 NY2d 448, 450 [2002]). There, a town justice had issued a search warrant authorizing a search of a location for environmental violations. The justice had been previously involved with the company that was the target of the search. Nevertheless, he called the attorney for that company and during the conversation, revealed that a search warrant had been issued. The Commission recommended removal and this Court agreed.

In its opinion the Commission did not discuss the majority of the cases discussed in the opinion of the dissenting Commissioners or attempt to reconcile the differences in sanctions.

In Matter of Skinner (91 NY2d 142, 144 [1997]), a town justice of the Columbia Town Court in Herkimer County arranged for the arraignment of a friend who had been accused of sexual abuse at a time when no prosecutor was available. The justice then dismissed the case. In addition, the justice directed that an 18 year old who had passed a bad check return in two weeks with the amount of the check and fines totaling $335 as restitution. When the defendant returned but was $50 short, the justice jailed him, without advising him that he had a right to an attorney, until defendant’s mother put up the money. While the Commission determined to remove the justice, this Court directed that a sanction of censure be substituted. It is simply not an adequate answer to say that the Skinner case occurred some time ago. The sanction here and the sanction in Skinner cannot be reconciled.

There is no good reason why the judges in the following cases were censured while Justice Blackburne is removed. In Matter ofFriess (1982 Ann Report of NY Commn on Jud Conduct 109) the judge released a murder defendant into his custody and then took her home with him (no sexual purpose existed). In Matter of Dusen (2005 Ann Report of NY Commn on Jud Conduct 155) the judge issued an illegal court order and fabricated a conviction so that the defendant could be deported. In Matter of Mills (2005 Ann Report of NY Commn on Jud Conduct 185), a defendant who had been acquitted and was not represented by counsel was held in an isolation cell for four days and a contempt order was doctored to cover up the basis for the incarceration. The same judge jailed a defendant’s father who allegedly used an expletive in a parking lot.

There is no sound reason to treat Justice Blackburne more harshly than Town Justice Skinner and Judges Friess, Dusen and Mills. But the disparity in sanction is even more glaring when cases in which this Court directed removal are compared to this case and when cases in which the Commission recommended removal or censure are compared to this case.

There is no sound reason to treat Justice Blackburne as harshly as a dozen other cases in which judges who were removed based on a single incident exhibited criminal or venal activity. Those cases, all cited by Commissioner Emery, include:

Court of Appeals:

Matter of Scacchetti v State Commn. on Jud. Conduct (56 NY2d 980, 981 [1982])—bribe solicitation; Matter of Cerbone (61 NY2d 93, 95 [1984])—derogatory reference to African Americans; Matter of Reedy (64 NY2d 299, 301 [1985])—attempted ticket fixing for son; Matter of Levine (74 NY2d 294, 295 [1989])—promise to a former political leader to adjourn a case and lying to the FBI; Matter of Benjamin (77 NY2d 296, 297 [1991])—sexual assault; Matter of Heburn (84 NY2d 168, 171 [1994])—false subscriptions on designating petitions.

Commission on Judicial Conduct:

Matter of Bloodgood (1982 Ann Report of NY Commn on Jud Conduct 69) — derogatory reference to Jews on court stationery; Matter of Molnar (1989 Ann Report of NY Commn on Jud Conduct 115)—solicitation of sexual favors; Matter of Stiggins (2001 Ann Report of NY Commn on Jud Conduct 123) — conviction for abuse of an incompetent person; Matter of Westcott (2004 Ann Report of NY Commn on Jud Conduct 160) — conviction for sexual relations with a mentally disabled person; Matter of Brownell (2005 Ann Report of NY Commn on Jud Conduct 129) — court check issued to pay a judgment after a case was mishandled; Matter of Fiore (2006 Ann Report of NY Commn on Jud Conduct)—judge left for a job in Iraq.

Justice Blackburne has been an outstanding justice. Persons who testified on her behalf include Congressman Charles Ran-gel, former Mayor David Dinkins, former State Senator and candidate for Lieutenant Governor Basil Paterson, former Presiding Justice of the Appellate Division, Second Department, Milton Mollen, former Appellate Division Justices Seymour Boyers and John Carro and Appellate Division Justice Steven Fisher. Organizations submitting briefs on her behalf include the Association of Black Women Attorneys, the Association of Justices of the Supreme Court of the State of New York, the Latino Lawyers Association of Queens County, Inc., the National Association for the Advancement of Colored People, the Queens County Bar Association and the Queens Law Associates. None of these persons or organizations would support a judge they believed to be unqualified for continued service.

No good reason exists to remove from the bench an outstanding jurist who has made one error in judgment. While it is true that judges should set high standards, it is also true that judges are human and may err. An error in judgment by this judge, approximately two years from retirement, should not lead to removal.

I dissent.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and Read concur in per curiam opinion; Judge G.B. Smith dissents and votes to impose the sanction of censure in a separate opinion in which Judge R.S. Smith concurs.

Determined sanction accepted, etc.

      . Police may, of course, lawfully interrogate a suspect in counsel’s absence despite the suspect’s representation on a pending, unrelated matter (see People v Bing, 76 NY2d 331 [1990]). Although a court is not required to provide an attorney under these circumstances, neither is it forbidden from doing so if in its judgment the interests of justice will be better served.

      . At the hearing before the Referee, the formal written complaint was amended to add an additional allegation — that petitioner lent the prestige of judicial office to advance the private interests of the judge or others, in violation of Rules of Judicial Conduct (22 NYCRR) § 100.2 (C). The Referee drew no conclusion of law with respect to this rule.

      . Petitioner also relies on Matter of Mills (2005 Ann Report of NY Commn on Jud Conduct 185 [Dec. 6, 2004]), where the Commission merely censured a judge who unlawfully incarcerated an acquitted, unrepresented defendant in solitary confinement for four days, during which time the judge altered his contempt order to cover up the illegal basis for the punishment. However, we need not determine whether Mills was wrongly decided, since it is enough simply to note that the Commission’s determination in Mills was never appealed to or reviewed by this Court.

      . Notably, the judge in Sims was herself removed.

      . In light of our determination, we need not decide whether the Commission’s conclusion that petitioner violated section 100.2 (C) of the Rules of Judicial Conduct was proper.

       The defendant was subsequently arrested for robbery. The charge was dismissed, but the record does not indicate why.


author: G.B. Smith, J.

text:
    [851 NE2d 1167, 818 NYS2d 816]
    G. Scott Walling et al., Respondents, v Paul F. Przybylo et al., Appellants.
    Argued April 26, 2006;
    decided June 13, 2006

      POINTS OF COUNSEL

      McMillan, Constabile, Maker & Perone, LLP Larchmont (William Maker, Jr., of counsel), for appellants.
    I. Knowledge alone is sufficient to defeat an adverse possession claim. (Barnes v Light, 116 NY 34; Van Valkenburgh v Lutz, 304 NY 95; Belotti v Bickhardt, 228 NY 296; Doherty v Matsell, 119 NY 646; Oistacher v Rosenblatt, 220 AD2d 493; Van Gorder v Masterplanned, Inc., 78 NY2d 1106; Joseph v Whitcombe, 279 AD2d 122; Harbor Estates Ltd. Partnership v May, 294 AD2d 399; Oak Ponds v Willumsen, 295 AD2d 587; Bockowski v Malak, 280 AD2d 572.) II. Even under the Third Department rule, plaintiffs were not entitled to summary judgment. (Van Gorder v Masterplanned, Inc., 161 AD2d 920, 78 NY2d 1106.)

      G. Scott Walling, Queensbury, respondent pro se, and for Kathleen Walling, respondent.
    I. The Third Department was correct in its determination as a matter of law that possessors, whose possession is otherwise open, hostile and continuous for the statutorily-prescribed period of time, can obtain property by adverse possession despite their knowledge that another party held record title to the property. (Matter of Cicio v City of New York, 98 AD2d 38; Van Valkenburgh v Lutz, 304 NY 95; Monnot v Murphy, 207 NY 240; Spiegel v Ferraro, 73 NY2d 622; Belotti v Bickhardt, 228 NY 296; Bernat v Echo Socy. of Niagara Falls, N.Y., 8 AD2d 760, 7 NY2d 914; Barnes v Light, 116 NY 34; Birk

      holz v Wells, 272 AD2d 665; Gerlach v Russo Realty Corp., 264 AD2d 756; Sinicropi v Town of Indian Lake, 148 AD2d 799.) II. Defendants’ claim that the Charles Maine affidavit raised a triable question of fact as to whether plaintiffs acknowledged that the property was not theirs is unpreserved for this Court’s consideration and is in any event both factually and legally erroneous. (Van Gorder v Masterplanned, Inc., 161 AD2d 920, 78 NY2d 1106; Cummins v County of Onondaga, 84 NY2d 322; Guariglia v Blima Homes, 89 NY2d 851; Monnot v Murphy, 207 NY 240; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118.) III. County Court erred in its conclusion that, on their motion for leave to renew, defendants satisfied the requirement of CPLR 2221 (e) (3) that the motion contain reasonable justification for the failure to present the new facts on the prior motion. (Carota v Wu, 284 AD2d 614; Cerasaro v Cerasaro, 9 AD3d 663; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781; Foitl v G.A.F. Corp., 64 NY2d 911; Henderson v Stilwell, 116 AD2d 861, 68 NY2d 606; Wallin v Wallin, 34 AD2d 870; Rosenman Colin Freund Lewis & Cohen v Edelman, 165 AD2d 533.)
   OPINION OF THE COURT

G.B. Smith, J.

This appeal arises from an action to quiet title by adverse possession. Because actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor, we affirm the order of the Appellate Division awarding summary judgment to plaintiffs.

Plaintiffs and defendants are owners of adjoining residential lots, 22 and 23, located in the Town of Queensbury, County of Warren, New York. The disputed portion of the land is on the northern border of lot 23.

In January 1986, plaintiffs, the Wallings, purchased lot 22 on Butternut Hill Drive. In 1989, the Przybylos purchased lot 23. Both lots were unimproved land on which the parties built homes and swimming pools. On lot 22, the plaintiffs also built a small shed. Even though the defendants purchased their land in 1989, they did not construct their residence until 1991 and did not obtain a certificate of occupancy and move in until May 1994.

In May 1987, plaintiffs bulldozed and deposited fill and topsoil on defendants’ northerly side yard, including the disputed parcel, dug a trench and installed PVC pipe for the purpose of carrying water from plaintiffs’ eaves and downspouts to and under the disputed parcel, ultimately discharging the water in and over the disputed parcel. Also prior to defendants’ arrival, plaintiffs constructed an underground dog wire fence to enclose their dog and continuously mowed, graded, raked, planted, and watered the grassy area in dispute. Also, on this portion of the land, the plaintiff installed 69 feet of four-inch PVC pipe in such a way that all of the pipe ran underground but finally surfaced within a “swale.” Defendants admit that the lawn was in part cultivated before they moved in. In 1992, plaintiffs dug a hole near the northwesterly corner of the grassy part of the disputed territory and placed in it a post approximately 10 feet long on which they affixed a birdhouse. Since 1992, the post and birdhouse have remained in place.

In 2004, defendants had the land surveyed and discovered that they had title to the disputed portion of the land. Upon learning of this, plaintiffs brought an action to quiet title. On September 16, 2004, the Warren County Court granted plaintiffs’ motion for summary judgment quieting title to the land. The court stated:

“Based on the facts of this case, it is clear that plaintiffs, as adverse users, entered upon the disputed parcel of property in 1986 under the misapprehension that the parcel was part of their land. Although not conceded by the defendants, it appears that each party was mutually mistaken as to the true location of the boundary line. Plaintiffs cultivated the parcel by having various excavation work performed on said property, by having topsoil installed and by establishing and maintaining a lawn on a significant portion of the dispute [d] parcel, a use consistent with the nature and character of the parcel. Surprisingly, defendants do not allege to have ever mowed the disputed parcel of property at any time.”

On December 15, 2004, after a motion to renew, the motion court modified its decision by denying summary judgment to the plaintiffs. Based upon an affidavit by the previous owner of lot 22, and the 1986 survey of plaintiffs’ property, the motion court found that there were triable issues of fact as to whether plaintiffs had actual knowledge of the true owners prior to making improvements on the land. The Appellate Division modified the order of County Court by reversing the denial of summary judgment to the plaintiffs and granting that motion. The Appellate Division determined: “In the absence of an overt acknowledgment, our courts have recognized since Humbert v Trinity Church [24 Wend 587 (1840)], that an adverse possessor’s claim of right or ownership will not be defeated by mere knowledge that another holds legal title” (24 AD3d 1, 4 [3d Dept 2005] [citation omitted]).

Adverse possession must be proven by clear and convincing evidence (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]). “Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely” (RPAPL 521).

To establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period (Belotti v Bickhardt, 228 NY 296, 302 [1920]; see also Van Valkenburgh v Lutz, 304 NY 95, 99 [1952]; Spiegel v Ferraro, 73 NY2d 622, 624 [1989]; Ray v Beacon Hudson Mtn. Corp., 88 NY2d at 159). Here the required period is at least 10 years (see Ray at 159).

Plaintiffs possessed the disputed parcel of land as early as 1986 in an open and notorious manner, hostile to the interests of the title owners and continuously for 20 years, 10 of which occurred after defendants moved into their residence. “The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period” (see Monnot v Murphy, 207 NY 240, 245 [1913]). It was not until April 21, 2004, close to 10 years after moving into the house and almost 15 years after purchasing the property, that defendants sought to assert their rights over the disputed parcel. The failure to assert their rights in a timely manner prevents defendants from prevailing on this appeal.

Defendants argue that there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession. However, longstanding decisional law does not support this position. The adverse possessor must act under claim of right (see Van Valkenburgh). By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors (see Monnot v Murphy, supra). The fact that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed is not new (see Humbert v Rector, Churchwardens & Vestrymen of Trinity Church, 24 Wend 587, 604 [1840] [“Possession by the defendant with a claim of title for twenty years, can no more be answered by averring that he knew he was wrong, than could the bar of two years, in slander, by the known falsehood of the libel for which it is prosecuted”]). The issue is “actual occupation,” not subjective knowledge (see id. [emphasis omitted]).

“Adverse possession, although not a favored method of procuring title, is a recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable” (Belotti v Bickhardt, 228 NY at 308; see generally Hindley v Manhattan Ry. Co., 185 NY 335, 355-356 [1906]).

The facts of Van Valkenburgh v Lutz (304 NY at 99-100) are distinguishable. In Van Valkenburgh, defendant admitted that he was aware of the rightful owner at the time that he built his shed on the disputed property (see 304 NY 95, 99 [1952]). Defendants point to this and other language in Van Valkenburgh that may seem inconsistent with our holding here. We do not, however, read Van Valkenburgh as contradicting the principle, well established since the nineteenth century, that an adverse possessor’s actual knowledge of the true owner is not fatal to an adverse possession claim. The Van Valkenburgh court mentioned several bases for its holding, and any perhaps mistaken dictum in that case did not change the law as Humbert, Monnot and other cases previously stated it.

The evidence in this case was sufficient to establish title by adverse possession and to grant summary judgment to plaintiffs.

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.

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

Order affirmed, etc.


author: Graffeo, J.

text:
    [851 NE2d 1193, 818 NYS2d 842]
    The People of the State of New York, Respondent, v Edwin Santana, Appellant.
    Argued June 8, 2006;
    decided June 29, 2006

      POINTS OF COUNSEL

      Lawrence T Hausman, New York City, Steven Banks and Laura R. Johnson for appellant.
    I. The “labor disputes” exception to the offense of second-degree criminal contempt is a true exception, which the prosecution must plead, because it is contained in the core of the statute and because the Legislature labeled it an exception; here, the second-degree criminal contempt count of the prosecutor’s information was jurisdiction-ally defective because it superceded a misdemeanor complaint that did not contain factual allegations negating that exception. (People v Alejandro, 70 NY2d 133; People v Kohut, 30 NY2d 183; Harris v White, 81 NY 532; People v Dumas, 68 NY2d 729; People v Devinny, 227 NY 397; People v Stedeker, 175 NY 57; People v First Meridian Planning Corp., 201 AD2d 145, 86 NY2d 608; People v Cruz, 48 NY2d 419; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; People v Rodriguez, 68 NY2d 674.) II. The complainant’s testimony that he received a black eye and a hurt neck, but was able to resume work the day of the incident and received no medical treatment, was legally insufficient to establish the physical injury element of third-degree assault. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v McDowell, 28 NY2d 373; Matter of Philip A., 49 NY2d 198; People v Rojas, 61 NY2d 726; People v Ray, 273 AD2d 611; People v Taylor, 276 AD2d 933; People v Jimenez, 55 NY2d 895; People v DiStefano, 252 AD2d 530; People v Jackson, 163 AD2d 489.)

      Robert M. Morgenthau, District Attorney, New York City (Megan E. Joy and Eleanor J. Ostrow of counsel), for respondent.
    I. The second-degree criminal contempt count in the prosecutor’s information was jurisdictionally sufficient. (People v D’Angelo, 284 AD2d 146, 98 NY2d 733; People v Alejandro, 70 NY2d 133; Opera on Tour, Inc. v Weber, 285 NY 348; People v Konieczny, 2 NY3d 569; People v Kohut, 30 NY2d 183; Harris v White, 81 NY 532; People v Briggs, 114 NY 56; People v Kibler, 106 NY 321; People v Devinny, 227 NY 397; Rowell v Janvrin, 151 NY 60.) II. The trial evidence established beyond a reasonable doubt that defendant caused physical injury to Francisco Melenceano. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Guidice, 83 NY2d 630; People v Rojas, 61 NY2d 726; People v Henderson, 92 NY2d 677; Matter of Philip A., 49 NY2d 198; People v McDowell, 28 NY2d 373; People v Malave, 158 AD2d 435; People v Tellis, 156 AD2d 260; People v Harper, 145 AD2d 933, 75 NY2d 313.)
   OPINION OF THE COURT

Graffeo, J.

Defendant repeatedly punched his roommate in the head during an altercation in October 2001. As a result, defendant was charged with assault in the third degree (see Penal Law § 120.00 [1]) and a temporary order of protection was issued. After defendant violated that order by harassing his roommate, he was served with another order of protection that prohibited him from residing in the roommate’s apartment. Upon his violation of the second order, defendant was charged with criminal contempt in the second degree (see Penal Law § 215.50 [3]). That crime is committed when a person engages in “[fintentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law” (id.). The accusatory instrument, a prosecutor’s information, alleged that defendant “intentionally disobeyed and resisted the lawful process and other mandate of a court, to wit, an order of protection” by continuing to live in the apartment. A jury determined that defendant was guilty of criminal contempt in the second degree and assault in the third degree.

Defendant argues that the charge of criminal contempt in the prosecutor’s information was jurisdictionally defective because it failed to state that the crime did not arise out of a labor dispute. The Appellate Term rejected this argument and affirmed, as do we.

We are unpersuaded by defendant’s assertion that the inclusion of the reference to “labor disputes” in the second-degree criminal contempt statute (Penal Law § 215.50 [3]) creates an exception that must be affirmatively pleaded as an element in the accusatory instrument, rather than a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial. We have explained that:

“[ejssential allegations are generally determined by the statute defining the crime. If the defining statute contains an exception, the [accusatory instrument] must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense” (People v Kohut, 30 NY2d 183, 187 [1972]).

Legislative intent to create an exception has generally been found when the language of exclusion is contained entirely within a Penal Law provision. For example, the “home or place of business” exception found in Penal Law § 265.02 (4), defining criminal possession of a weapon in the third degree, does not require reference to another statute to determine its applicability (see People v Rodriguez, 68 NY2d 674, 675 [1986], revg on dissenting op of Lazer, J., 113 AD2d 337, 343-348 [2d Dept 1985]).

That is not the case in Penal Law § 215.50 (3). The exclusionary language in the second-degree criminal contempt provision does not provide a complete definition of the class of cases that the Legislature intended to remove from the ambit of criminal contempt because the statute refers to a definition of “labor disputes” set forth outside the Penal Law. The contempt statute cites section 753-a of the Judiciary Law, which delineates the multiple circumstances that constitute “labor disputes” and the various parties who can engage in such disagreements (see Judiciary Law § 753-a [2]). As a matter of “common sense and reasonable pleading” (People v Devinny, 227 NY 397, 401 [1919]), we do not believe that the Legislature intended to require the People to negate each of the alternatives specified in Judiciary Law § 753-a in every criminal contempt accusatory instrument premised on Penal Law § 215.50 (3) (see People v Romano, 188 Misc 2d 368, 370-374 [Crim Ct, Queens County 2001] [discussing the legislative history and purpose of the labor disputes exclusionary language in Penal Law § 215.50 (3)]).

We therefore conclude that the “labor disputes” clause operates as a proviso that the accused may raise in defense of the charge rather than an exception that must be pleaded by the People in the accusatory instrument. Thus, the prosecutor’s information in this case was jurisdictionally valid even though it failed to allege that the charge of criminal contempt did not arise out of a labor dispute. If an accused timely raises the issue, the People must, of course, establish beyond a reasonable doubt that the labor disputes proviso does not apply (see Penal Law § 25.00 [1]).

Defendant’s remaining challenge to the sufficiency of the evidence supporting the conviction of assault in the third degree is without merit.

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

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

Order affirmed.


author: R.S. Smith, J.

text:
    [851 NE2d 1195, 818 NYS2d 844]
    In the Matter of Stephen L. O’Brien, Respondent, v Eliot Spitzer, as Attorney General of the State of New York, Appellant.
    Argued June 6, 2006;
    decided June 29, 2006

      POINTS OF COUNSEL

      Eliot Spitzer, Attorney General, New York City CRichard Rifkin, Caitlin J. Halligan, Daniel Smirlock, Michael S. Belohlavek and David Lawrence III of counsel), appellant pro se.
    I. Under the control test, Stephen L. O’Brien, as a court-appointed foreclosure referee, was an independent contractor who was expressly excluded from Public Officers Law § 17 coverage. (Matter of Garcia v Abrams, 98 AD2d 871; Matter of LoRusso v New York State Off. of Ct. Admin., 229 AD2d 995; Matter of Sharrow v State of New York, 216 AD2d 844; Matter of Town of Haverstraw v Newman, 75 AD2d 874; Matter of Frontier Ins. Co. v Koppell, 225 AD2d 93; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691; Matter of Morton, 284 NY 167; Western Elec. Co. v Brenner, 41 NY2d 291.) II. Both courts below abandoned or misapplied the control test. (Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733; Van Boskerck v Hayward, 81 Misc 370; Hanover Funding Co. v Keri Assoc., 180 AD2d 945; Crossland Mtge. Corp. v Frankel, 192 AD2d 571; Associates Fin. Servs. v Davis, 133 AD2d 601; Tambasco v Pesce, 213 AD2d 821; Citibank v Sahakian, 225 AD2d 333; Alben Affiliates v Astoria Term., 34 Misc 2d 246; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725; Klostermann v Cuomo, 61 NY2d 525.) III. The Attorney General’s determination that Stephen L. O’Brien is an independent contractor is entitled to deference. (Matter of Roesch v Board of Educ. for Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 259 AD2d 900; Matter of Brosnahan v New York State Employees’ Retirement Sys., 174 AD2d 954; Matter of Caufield-Ori [Blumberg — Sweeney], 233 AD2d 558; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393; Matter of Howard v Wyman, 28 NY2d 434; Matter of Erwin v Regan, 89 AD2d 753, 58 NY2d 722; Matter of Judd v Constantine, 153 AD2d 270.)

      O’Brien & O’Brien, LLP, Nesconset (Stephen L. O’Brien pro se and Daniel P. O’Brien of counsel), for respondent.
    The Appellate Division correctly concluded that the Supreme Court properly granted the petition. (Colin v County of Suffolk, 181 AD2d 653; Sullivan v Elliott, 157 Misc 2d 456; Buxbaum v Buxbaum, 118 Misc 2d 348; Sam v Town of Rotterdam, 248 AD2d 850; Rosendale v Galin, 266 AD2d 444; Anonymous v Bureau of Professional Med. Conduct, 309 AD2d 44; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of CDL W. 45th St. v City of N.Y. Dept. of Fin., 308 AD2d 210; Jorgensen v Endicott Trust Co., 100 AD2d 647; Szabados v Quinn, 156 AD2d 186.)
   OPINION OF THE COURT

R.S. Smith, J.

We hold that the Attorney General properly found a private lawyer who was appointed as referee in a mortgage foreclosure proceeding to be an independent contractor, not a state employee. The referee therefore was not entitled to defense and indemnification from the State in a lawsuit brought against him.

Facts and Procedural History

This case arises out of a proceeding to foreclose a mortgage on a home owned by Donald MacPherson. Supreme Court entered a judgment of foreclosure and sale, and appointed petitioner, a lawyer in private practice, as referee to supervise the sale of the property. The property was sold and MacPherson, contending that the foreclosure and sale violated his constitutional rights, brought a lawsuit in federal court seeking damages and injunctive relief against several defendants, including petitioner.

Petitioner informed the Attorney General of the lawsuit, and requested defense and indemnification pursuant to Public Officers Law § 17. The Attorney General rejected the request, relying on the exclusion of “independent contractor[s]” from the rights given by the statute. Petitioner then brought this proceeding under CPLR article 78 against the Attorney General, seeking an order annulling the Attorney General’s determination and directing the Attorney General to defend petitioner in MacPherson’s suit. MacPherson later withdrew his claims against petitioner, but petitioner continues to seek indemnification for the expense the suit caused him.

Supreme Court granted the petition, and the Appellate Division affirmed. The Appellate Division permitted the Attorney-General to appeal to this Court on a certified question, and we now reverse.

Discussion

Public Officers Law § 17 (2) (a) requires the State to “provide for the defense” of an “employee” in an action arising out of his or her public duties. “Employee” is defined in Public Officers Law § 17 (1) (a), which provides in relevant part: “As used in this section, unless the context otherwise requires the term ‘employee’ shall mean any person holding a position by election, appointment or employment in the service of the state, . . . but shall not include an independent contractor.”

The issue is whether petitioner was an “employee” or an “independent contractor” within the meaning of this section. We first consider whether the Attorney General’s resolution of this issue is entitled to deference, and we conclude that it is.

While as a general rule courts will not defer to administrative agencies in matters of “pure statutory interpretation” (Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]), deference is appropriate “where the question is one of specific application of a broad statutory term” (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984], quoting NLRB v Hearst Publications, Inc., 322 US 111, 131 [1944] [interpreting the term “employees”]). This case is in that category.

The terms “employee” and “independent contractor” are familiar ones, and their definitions are well known. Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results. A person who works for another subject to less extensive control is an independent contractor (e.g., Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 521 [1985]). But it is often not easy to apply those definitions to specific facts. When a person claiming to be a public employee requests indemnification, the Attorney General must first decide whether that person is indeed an employee, or is an independent contractor. Where his decision is a reasonable one, courts should not second-guess it.

Here, there was ample basis for the Attorney General’s determination that petitioner was an independent contractor, not an employee. Petitioner worked without day-to-day supervision and chose his own hours of work; it was he who selected the date for the foreclosure sale. He performed his duties on a part-time basis, while also working for clients of his private law practice. His compensation did not come from state funds, but from the sale proceeds. The State did not withhold income tax or provide workers’ compensation. Petitioner furnished whatever materials he needed for his work, and paid his own expenses, subject to reimbursement from the sale proceeds. He deposited the proceeds in a special bank account bearing his own name, as required by CPLR 2609. He was, in short, substantially more independent from state control over his activities than a typical state employee. Beyond this, public policy supports the Attorney General’s decision: The purpose of Public Officers Law § 17 is, in essence, to provide insurance against litigation. Private lawyers like petitioner ordinarily have malpractice coverage, and the Legislature is unlikely to have intended to substitute the State for lawyers’ malpractice carriers.

Accordingly, the order of the Appellate Division should be reversed, without costs, the petition dismissed and the certified question answered in the negative.

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

Order reversed, etc.