author: R.S. Smith, J.

text:
    [840 NE2d 123, 806 NYS2d 154]
    The People of the State of New York, Appellant, v Herman Turner, Respondent.
    Argued October 20, 2005;
    decided November 17, 2005

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Victor Barall of counsel), for appellant.
    Defendant was not denied the effective assistance of appellate counsel. (Clark v Stinson, 214 F3d 315; People v Satterfield, 66 NY2d 796; People v Stultz, 2 NY3d 277; People v Baldi, 54 NY2d 137; Evitts v Lucey, 469 US 387; Jones v Barnes, 463 US 745; People v White, 73 NY2d 468, 493 US 859; United States ex rel. Roche v Scully, 739 F2d 739; Curzi v United States, 773 F Supp 535, 973 F2d 107, 507 US 954; Mayo v Henderson, 13 F3d 528.)

      Legal Aid Society Criminal Appeals Bureau, New York City (Katheryne M. Martone and Laura R. Johnson of counsel), for respondent.
    As the Appellate Division correctly held, Herman Turner was first denied the effective assistance of counsel at trial when his lawyer failed to assert the time bar, though he was objecting on other grounds, to the submission of the undisputably time-barred offense of which Mr. Turner was eventually convicted, and again on appeal, when appellate counsel failed to apprehend that Mr. Turner’s conviction was time-barred but for his lawyer’s default at trial, a claim fully and readily cognizable on appeal. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; Evitts v Lucey, 469 US 387; People v Casiano, 67 NY2d 906; Jackson v Leonardo, 162 F3d 81; Kimmelman v Morrison, 477 US 365; People v Stultz, 2 NY3d 277; Greer v Mitchell, 264 F3d 663, 535 US 940; People v Droz, 39 NY2d 457; People v Satterfield, 66 NY2d 796.)
   OPINION OF THE COURT

R.S. Smith, J.

Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation. This is such a rare case, in which both defendant’s trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client’s manslaughter conviction. We conclude that this error requires setting the conviction aside, and we therefore affirm the Appellate Division’s grant of a writ of error coram nobis.

Facts and Procedural History

In 1982, Donald Holloman was killed by gunshots on a Brooklyn street corner. According to several witnesses, defendant fired the fatal shots, then fled. He was not seen again in the neighborhood for years, and was not arrested until 1998, almost 16 years after the crime.

Defendant was indicted for murder in the second degree, a crime for which there is no statute of limitations (CPL 30.10 [2] [a]). At his trial in 1999, the prosecutor asked the court to instruct the jury that it could convict defendant of manslaughter in the first degree, as a lesser included offense. Defendant’s trial counsel opposed the prosecutor’s request, saying that defendant “does not want to give a jury the chance to compromise,” but did not mention any statute of limitations problem— though manslaughter, unlike murder, is subject to a five-year statute (CPL 30.10 [2] [b]).

The trial judge instructed the jury that, if it found defendant not guilty of murder, it should consider whether he was guilty of manslaughter. The jury acquitted him of murder but convicted him of manslaughter, and defendant appealed. His appellate counsel devoted her brief in the Appellate Division to a single issue: she claimed that a violation of People v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]) entitled defendant to a new trial. The argument was a substantial one and the brief presented it well, though unsuccessfully.

The appellate brief was filed in June 2000. Before it was filed, defendant wrote to his appellate lawyer, mentioning the possibility that his manslaughter conviction should have been barred by the statute of limitations. The lawyer replied that the statute of limitations was “not a strong issue for appeal,” for two reasons. First, the lawyer said that the defense lacked merit, because defendant’s indictment for murder was not time-barred and therefore “it was not improper for the jury to have considered the lesser included offense of manslaughter.” Secondly, she said that, because trial counsel had not raised the statute of limitations below, the issue was not preserved for appellate review. She did not mention the possibility of arguing that trial counsel was ineffective for failing to preserve the issue.

The Appellate Division affirmed defendant’s conviction (281 AD2d 568 [2d Dept 2001]), and a Judge of this Court denied leave to appeal. Defendant applied to the Appellate Division for a writ of error coram nobis, asserting that his appellate counsel had been ineffective because, among other things, she failed to raise the statute of limitations issue. The Appellate Division denied relief (285 AD2d 659 [2d Dept 2001]), and defendant filed a petition for federal habeas corpus.

The United States District Court for the Eastern District of New York denied defendant relief, but suggested that he might eventually prevail on the claim—not specifically raised in his first coram nobis application—that his appellate counsel should have argued that his trial counsel was ineffective. The District Court held that it could not consider this claim until it had been unsuccessfully presented to the state courts (Turner v Sabourin, 217 FRD 136, 146-147 [ED NY 2003]). Taking the hint, defendant returned to the Appellate Division, and filed a second petition for a writ of error coram nobis, which the Appellate Division granted. A Judge of this Court granted the People leave to appeal, and we now affirm.

Discussion

I

The Sixth Amendment to the United States Constitution provides that a defendant shall “enjoy the right... to have the Assistance of Counsel for his defence.” Similarly, article I, § 6 of the State Constitution provides that “[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions.” It is well established that these constitutional rights are violated if a defendant’s counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure (Strickland v Washington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137 [1981]). In Strickland the United States Supreme Court adopted a two-pronged test for ineffective assistance, holding that a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” (466 US at 688) and, secondly, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (id. at 694). Strickland holds that the minimum standard of performance required by the Sixth Amendment is a very tolerant one:

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” (466 US at 689.)

Our ineffective assistance cases have departed from the second (“but for”) prong of Strickland, adopting a rule somewhat more favorable to defendants (see People v Caban, 5 NY3d 143, 155-156 [2005]; People v Stultz, 2 NY3d 277, 284 [2004]; People v Benevento, 91 NY2d 708, 713-714 [1998]). Our cases, however, agree with Strickland on the first prong. We have said that “counsel’s efforts should not be second-guessed with the clarity of hindsight” and that our Constitution “guarantees the accused a fair trial, not necessarily a perfect one” (People v Benevento, 91 NY2d at 712). We have also held that, in general, the issue is whether counsel’s performance “viewed in totality” amounts to “meaningful representation” (People v Baldi, 54 NY2d at 147). But our decisions, and the United States Supreme Court’s, have recognized that there may be cases in which a single failing in an otherwise competent performance is so “egregious and prejudicial” as to deprive a defendant of his constitutional right (People v Caban, 5 NY3d at 152; Murray v Carrier, 477 US 478, 496 [1986]).

Such cases are rare—indeed, this may be the first one this Court has encountered. Two of our decisions have rejected ineffective assistance claims despite significant mistakes by defense counsel (People v Hobot, 84 NY2d 1021 [1995]; People v Flores, 84 NY2d 184 [1994]). Those cases hold, and we reaffirm today, that such errors as overlooking a useful piece of evidence (Ho-bot), or failing to take maximum advantage of a Rosario violation (Flores), do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate. But neither Hobot nor Flores involved the failure to raise a defense as clear-cut and completely dispositive as a statute of limitations. Such a failure, in the absence of a reasonable explanation for it, is hard to reconcile with a defendant’s constitutional right to the effective assistance of counsel.

II

The ultimate issue here is whether appellate counsel was ineffective for failing to argue that trial counsel was ineffective. That question depends on whether trial counsel was clearly ineffective, and that question in turn depends on how strong defendant’s statute of limitations defense was. We conclude that it was a winning argument; that trial counsel could not reasonably have thought that the defense was not worth raising; that appellate counsel could not reasonably have thought that she should not argue trial counsel’s ineffectiveness; and that therefore an “egregious and prejudicial” error, rising to the level of ineffective assistance, has occurred.

The argument that trial counsel could and should have made in opposing the submission of the manslaughter count to the jury was simple: Manslaughter is subject to a five-year statute of limitations that can be tolled under some circumstances, but for no more than five additional years (CPL 30.10 [2] [b]; [4] [a]); here, defendant was not prosecuted until 16 years after his crime; even with the maximum tolling, the prosecution came some six years too late. While the People did have a possible counterargument, it was a weak one—certainly not one that could justify a decision by defendant’s trial counsel to abandon the statute of limitations defense.

The People could have made the argument that defendant’s appellate counsel later advanced in her letter to defendant— that, since the indictment for murder was not time-barred, submission of the otherwise time-barred count of manslaughter as a lesser included offense was proper. In her letter, appellate counsel cited only one case that could have supported this argument, People v Dowling (1 NY Crim Rep 529 [Oyer and Terminer, Albany County 1884]). Dowling was a 116-year-old trial court decision; appellate counsel’s letter did not mention a more recent, though still old, Appellate Division decision going the other way, People v Di Pasquale (161 App Div 196 [3d Dept 1914]). A later affirmation by appellate counsel says that she was aware of Di Pasquale, but thought there were valid reasons, including Di Pasquale’s failure to mention Dowling and the existence of an alternative basis for the Di Pasquale result, for rejecting or distinguishing it.

Appellate counsel’s apparent conclusion thát Di Pasquale was not worth citing was not a reasonable one, even by the undemanding standard we apply in ineffective-assistance cases. Di Pasquale, though old, was still a valid precedent, binding on all trial-level courts in the state (see Mountain View Coach Lines v Storms, 102 AD2d 663, 664-665 [2d Dept 1984]) and entitled to respect by appellate courts. Neither the failure to cite an 1884 Oyer and Terminer case nor the existence of an alternative holding seriously impaired Di Pasquale’s precedential force. The Di Pasquale court had carefully considered, and squarely rejected, the only argument that would have been available to the People in the present case, if the People had been confronted with a statute of limitations defense to the manslaughter count. The Di Pasquale court explained that the status of a charge (attempted murder, in that case) as a lesser included count of murder could not overcome the statute of limitations: “[U]nder the indictment [for murder] the defendant could be convicted only of murder, and . . . the lapse of time prevents a conviction for any other crime in connection with the death” (161 App Div at 198).

More recent authority, though not technically binding, would have strengthened defendant’s statute of limitations argument. In People v Hughes (220 AD2d 529, 532 [2d Dept 1995]), the Appellate Division relied on Di Pasquale for the proposition that “an uncharged misdemeanor which could not have been timely raised in the accusatory instrument may not be charged as a lesser included offense.” While Hughes is distinguishable from this case, on the ground that in Hughes “the time-barred misdemeanor charge was not a valid lesser inclusory count” (id.), it strongly suggested that Di Pasquale was not a dead letter. There was also non-New York authority approving of and following Di Pasquale (Padie v State, 557 P2d 1138, 1140 [Alaska 1976]; State v King, 140 W Va 362, 368, 84 SE2d 313, 316 [1954]; Drott v People, 71 Colo 383, 384, 206 P 797, 798 [1922]; Askins v United States, 251 F2d 909, 911 [DC Cir 1958]).

It is true that there existed some New York lower court decisions that might have been cited by the People in opposing defendant’s statute of limitations defense (People v Cuddihy, 170 Misc 2d 592 [Nassau County Ct 1996]; People v Norman, 150 Misc 2d 583 [Crim Ct, Bronx County 1991]). Perhaps the law on this point was not definitively settled until 2003, when we observed in People v Mills (1 NY3d 269, 272 n 2 [2003]): “Of course, the People could not have requested that the jury be charged with respect to any of the lesser included offenses, including second-degree manslaughter, because they were time-barred.” But, as the expression “of course” implies, before Mills there were strong indications that the defense had the better of the argument. A reasonable defense lawyer at the time of defendant’s trial might have doubted that the statute of limitations argument was a clear winner—but no reasonable defense lawyer could have found it so weak as to be not worth raising. Yet defendant’s trial counsel did not raise it.

Trial counsel’s error should have been apparent to any reasonable appellate counsel, and should have prompted that counsel to make an ineffective assistance argument. It is true that, as defendant’s appellate lawyer pointed out in her letter, an attempt to argue the statute of limitations issue on appeal might well have failed because the point had not been raised below. But that in itself should have suggested to defendant’s appellate lawyer that defendant had been victimized by his trial lawyer’s mistake. Giving due weight to the danger of judging appellate counsel’s decisions by hindsight, we think that it should have been obvious that an ineffective assistance argument was called for.

Ill

The People contend on this appeal that defendant’s trial and appellate counsel could both reasonably have believed that the statute of limitations defense was so weak that it could be ignored. We have explained why we think otherwise. But the People also make two other arguments. They say, first, that trial counsel was not ineffective because a reasonable trial attorney might actually have welcomed the submission of the manslaughter count to the jury; and, secondly, that appellate counsel was not ineffective because she could reasonably have thought her Rosario argument was stronger than an argument based on the ineffective assistance of trial counsel. Both of these contentions by the People are ill-founded.

It is true that whether to object to the submission of a lesser included offense is often a strategic decision that could reasonably be made either way. A defendant who thinks his chances of acquittal are small may welcome giving the jury an opportunity for a compromise verdict (see People v Boettcher, 69 NY2d 174, 182 n 3 [1987] [“the availability of a lesser included offense may be advantageous to the defendant”]). In this case, trial counsel could reasonably have advised his client to consent to the People’s request that the jury be allowed to convict defendant of manslaughter. But if such advice was given, it was not followed; defendant decided to gamble on acquittal, as his trial counsel’s objection to the submission of the manslaughter charge shows. Once that decision was made, it could not have been rational for trial counsel to abandon a statute of limitations defense that would have prevented the charge from being submitted.

The People rely on our holding in People v Satterfield (66 NY2d 796, 799 [1985]) that, in ineffective assistance cases, counsel’s “subjective reasons” for a decision are irrelevant, so long as “[v]iewed objectively,” the course counsel pursued was one “that might well have been pursued by a reasonably competent attorney.” But that holding does not apply here. The course defendant’s trial counsel pursued was to object to submission of the manslaughter count, without mentioning that the count was barred by the statute of limitations. No competent attorney would do this intentionally. Satterfield does not hold, as the People seem to suggest, that any blunder by counsel may be ignored if the result of the blunder (in this case, submission of the manslaughter count to the jury) is one that a reasonably competent attorney might have sought.

In saying that defendant’s appellate counsel could reasonably have preferred her Rosario argument to an argument based on the ineffective assistance of trial counsel, the People ignore the obvious: Counsel could have made both arguments. It is true that, as we said in People v Stultz (2 NY3d at 285), “[effective appellate representation by no means requires counsel to brief or argue every issue that may have merit. . . . [A]ppellate lawyers have latitude in deciding which points to advance . . . .” But this does not mean that an appellate lawyer is always justified in omitting an argument that has a good chance to win the case, solely because he or she may reasonably think one other argument is even better.-

This might be a different case if defendant’s appellate counsel had found herself choosing among half a dozen, or even four or five, substantial arguments, and had decided not to make them all. Certainly, it is often appropriate for an appellate attorney to focus his or her efforts, and the appellate court’s attention, on a small number of points, and the attorney’s selection of those points should not be second-guessed in a coram nobis proceeding. But here, defendant’s appellate counsel raised only one point on appeal. Admittedly, the point was substantial, and it was a complicated one—her brief was 31 pages long, and the length does not seem excessive. But there was no reasonable basis for concluding that the brief would suffer from having a second point, where an argument as strong as the one that she omitted was available.

IV

In short, we agree with the Appellate Division that appellate counsel’s failure to argue that trial counsel had been ineffective in failing to assert a statute of limitations defense to the manslaughter charge fell short of an objective standard of reasonableness, even applying the deferential standard that is appropriate in considering issues of this kind. We also agree with the Appellate Division that, if appellate counsel had made the argument she should have made, defendant’s conviction would have been reversed. It follows that defendant was deprived of his constitutional right to the effective assistance of appellate counsel, and that the Appellate Division correctly granted his petition for a writ of error coram nobis.

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

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

Order affirmed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [840 NE2d 115, 806 NYS2d 146]
    In the Matter of New York City Asbestos Litigation. Elizabeth Holdampf et al., Respondents, v A.C. & S., Inc., et al., Defendants, and Port Authority of New York and New Jersey, Appellant.
    Argued September 13, 2005;
    decided October 27, 2005

      POINTS OF COUNSEL

      Segal McCambridge Singer & Mahoney, Ltd., New York City (Christian H. Gannon, Dwight A. Kern and Robert R. Rigolosi of counsel), for appellant.
    I. Under New York law, an employer does not owe a duty to individuals who are neither employees nor employed at a work site. (Purdy v Public Adm’r of County of Westchester, 72 NY2d 1; Di Ponzio v Riordan, 89 NY2d 578; Lauer v City of New York, 95 NY2d 95; Johnson v Jamaica Hosp., 62 NY2d 523; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Tobin v Grossman, 24 NY2d 609; Baker v Vanderbilt Co., 260 AD2d 750; D’Amico v Christie, 71 NY2d 76; Russin v Louis N. Picciano & Son, 54 NY2d 311.) II. Any foreseeability of Elizabeth Holdampf s injury did not create a duty to warn Mrs. Holdampf about the hazards of asbestos. (Eiseman v State of New York, 70 NY2d 175; McNulty v City of New York, 295 AD2d 42, 100 NY2d 227; Danielenko v Kinney Rent A Car, 57 NY2d 198; Tobin v Grossman, 24 NY2d 609; McCarthy v Sturm, Ruger & Co., Inc., 916 F Supp 366, 119 F3d 148; Pulka v Edelman, 40 NY2d 781; Sanchez v State of New York, 99 NY2d 247; Palsgraf v Long Is. R.R. Co., 248 NY 339; Waters v New York City Hous. Auth., 69 NY2d 225; Di Ponzio v Riordan, 89 NY2d 578.) III. The Port Authority of New York and New Jersey does not owe a duty to plaintiffs under a premises liability theory. (Church v Callanan Indus., 285 AD2d 16; Strauss v Belle Realty Co., 65 NY2d 399; Waters v New York City Hous. Auth., 69 NY2d 225; Baker v Vanderbilt Co., 260 AD2d 750; Widera v Ettco Wire & Cable Corp., 204 AD2d 306; Massie v Crescent Dry Cleaning Co., 241 App Div 831; Wilson v American Bridge Co., 74 App Div 596; Savage v Mathieson Alkali Works, 174 Misc 1022, 261 App Div 1053.) IV Based on legal and policy considerations, this Court should hold that the Port Authority of New York and New Jersey does not owe plaintiffs a duty of care under the circumstances presented in this case. (McNulty v City of New York, 295 AD2d 42, 100 NY2d 227; Strauss v Belle Realty Co., 65 NY2d 399; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d 606; Pingtella v Jones, 305 AD2d 38; Eiseman v State of New York, 70 NY2d 175; Megally v LaPorta, 253 AD2d 35; Strauss v Belle Realty Co., 65 NY2d 399; Tobin v Grossman, 24 NY2d 609; Widera v Ettco Wire & Cable Corp., 204 AD2d 306.)

      Weitz & Luxenberg, PC., New York City (Erik Jacobs and Stephen J. Riegel of counsel), for respondents.
    I. The decision below properly interpreted and applied the Court’s precedents and relevant factors in reinstating plaintiffs’ general negligence claim which alleges that defendant owed and breached a duty of care to Elizabeth Holdampf to prevent her unknowing, deadly secondary exposure to asbestos at home. (Di Ponzio v Riordan, 89 NY2d 578; Sanchez v State of New York, 99 NY2d 247; Pulka v Edelman, 40 NY2d 781; Palsgraf v Long Is. R.R. Co., 248 NY 339; Waters v New York City Hous. Auth., 69 NY2d 225; Tobin v Grossman, 24 NY2d 609; Strauss v Belle Realty Co., 65 NY2d 399; McNulty v City of New York, 100 NY2d 227; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Eiseman v State of New York, 70 NY2d 175.) II. The decision below expressly reinstated only plaintiffs’ general negligence claim against the Port Authority of New York and New Jersey, not their unsafe workplace or Labor Law claims, and it correctly distinguished or rejected precedents involving the latter claims, such as Widera v Ettco Wire & Cable Corp. (204 AD2d 306 [1994]). (Baker v Vanderbilt Co., 260 AD2d 750; Kowalski v Goodyear Tire & Rubber Co., 841 F Supp 104; Russin v Louis N. Picciano & Son, 54 NY2d 311; Allen v Cloutier Constr. Corp., 44 NY2d 290; Palsgraf v Long Is. R.R. Co., 248 NY 339; Tobin v Grossman, 24 NY2d 609; Pulka v Edelman, 40 NY2d 781; Sanchez v State of New York, 99 NY2d 247.) III. Alternatively, the decision below correctly denied defendant’s summary judgment motion because defendant failed to submit any supporting evidence that it owed no duty of care to plaintiffs, and plaintiffs did submit sufficient evidence in opposition to raise triable issues of fact concerning the existence of that duty. (Ayotte v Gervasio, 81 NY2d 1062; Security Pac. Bus. Credit v Peat Marwick Main & Co., 79 NY2d 695; Assaf v Ropog Cab Corp., 153 AD2d 520.)

      Shook, Hardy & Bacon, L.L.P., Washington, D.C. (Victor E. Schwartz and Mark A. Behrens of counsel), Crowell & Moring

      LLP, Washington, D.C. (Paul W. Kalish and Mark D. Plevin of counsel), Karen R. Harned, Washington, D.C., Donald D. Evans, Arlington, Virginia, Ann W. Spragens and Robert J. Hums, Des Plaines, Illinois, and Robin S. Conrad and Amar D. Sarwal, Washington, D.C., for Coalition for Litigation Justice, Inc., and others, amici curiae.
    I. This Court should hold that employers owe no duty to third-party nonemployees. (Pulka v Edelman, 40 NY2d 781, 41 NY2d 901; Waters v New York City Hous. Auth., 69 NY2d 225; Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Eiseman v State of New York, 70 NY2d 175; D’Amico v Christie, 71 NY2d 76; Strauss v Belle Realty Co., 65 NY2d 399; Widera v Ettco Wire & Cable Corp., 204 AD2d 306, 85 NY2d 804; McCarthy v Sturm, Ruger & Co., Inc., 916 F Supp 366, affd sub nom. McCarthy v Olin Corp., 119 F3d 148; Port Auth. of N.Y. & N.J. v Arcadian Corp., 189 F3d 305.) II. The Legislature, not the judiciary, should decide whether to provide recovery to nonemployees who come into contact with a substance carried by a worker to locations outside the workplace. (BMW of North America, Inc. v Gore, 517 US 559; Forni v Ferguson, 232 AD2d 176; Howell v New York Post Co., 81 NY2d 115.)

      Michaels & Smolak, PC., Auburn (Michael G. Bersani of counsel), for Asbestos Disease Awareness Organization and others, amici curiae.
    I. Defendant had a duty to take reasonable measures to prevent the foreseeable risks associated with its use of asbestos, including the risk to a family member exposed to “second-hand” asbestos. (Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d 606; Eiseman v State of New York, 70 NY2d 175; Amchem Products, Inc. v Windsor, 521 US 591; Ortiz v Fibreboard Corp., 527 US 815.) II. Sound public policy and concepts of fairness require a finding of duty to plaintiffs in this case. (Codling v Paglia, 32 NY2d 330; Ortiz v Fibreboard Corp., 527 US 815.) III. Even as the asbestos industry seeks a legislative solution to the alleged asbestos litigation crisis, the courts are the proper forum for determining questions of foreseeability and duty. (De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Woods v Lancet, 303 NY 349.)
   OPINION OF THE COURT

Read, J.

We are asked to decide whether the Port Authority of New York and New Jersey (Port Authority) owes a duty of care to plaintiff wife, who was allegedly injured from exposure to asbestos dust that plaintiff husband, a Port Authority employee, introduced into the family home on soiled work clothes that plaintiff wife laundered. We conclude that there is no duty of care.

I.

Plaintiff John Holdampf was employed by the Port Authority from 1960 to 1996 in various blue-collar positions, working at one time or another in most of the Port Authority’s 26 locations. Over the course of his 36-year job tenure, he handled asbestos-containing products. The Port Authority issued five uniforms to John Holdampf and offered a laundry service: soiled uniforms placed in a designated stationary cabinet at the workplace were sent offsite for cleaning. About half of the time, however, he opted to bring dirty work clothes home for cleaning for reasons of “[cjonvenience” and because there were no showers available at work.

John Holdampf married plaintiff Elizabeth Holdampf in 1971. As relevant to this appeal, Elizabeth Holdampf testified at her deposition that her husband told her sometime in the 1970s that he handled asbestos at work, and that she was consequently exposed to asbestos when she washed her husband’s soiled uniforms. Elizabeth Holdampf was diagnosed with mesothelioma in August 2001.

Plaintiffs sued to recover for injuries allegedly caused by exposure to asbestos and asbestos-containing products and/or equipment and materials, naming asbestos manufacturers or suppliers as defendants. On January 4, 2002, plaintiffs filed a second amended complaint, which added the Port Authority as a defendant.

The second amended complaint, which incorporates plaintiffs’ attorneys’ “Amended Standard Asbestos Complaint for Personal Injury No. 6,” sets out seven causes of action—six claims for direct injury sounding in negligence, breach of warranty, products liability, enterprise liability, and violations of Labor Law §§ 200 and 241 (6), and one derivative claim for loss of services and consortium. The first cause of action, which is at issue on this appeal, alleges that defendants “negligently failed to warn and failed to provide adequate instructions of any potentially safer handling methods which should have been utilized by users, handlers, or other persons who were reasonably and foreseeably known to come into contact with the asbestos-containing products and/or equipment and materials.”

On December 4, 2002, the Port Authority moved for summary judgment to dismiss the complaint, arguing that Elizabeth Holdampf could not recover for direct injuries because exposure to her husband’s work clothes at the family home was “not connected to [her] employment at any Port Authority site.” The Port Authority relied on Widera v Ettco Wire & Cable Corp. (204 AD2d 306 [2d Dept 1994], lv denied 85 NY2d 804 [1995] [infant plaintiff may not recover in negligence from father’s employer due to injury caused by in útero exposure to toxic chemicals father brought home on his work clothes because employer owes no duty to individuals who are not employees]).

In response, plaintiffs argued that Elizabeth Holdampf was exposed to asbestos that the Port Authority “negligently permitted to leave its sites,” and that the Port Authority owes a duty to protect nonemployees from exposure to asbestos. Plaintiffs cited two cases to support their position. The first case, Baker v Vanderbilt Co. (260 AD2d 750 [3d Dept 1999] [no appeal]), distinguished Widera and found that a mine operator can owe a duty to third parties allegedly injured off the mining site by exposure to airborne asbestos-containing talc. The Court relied on 53A Am Jur 2d, Mines and Minerals § 339 (“mining activities will be found to create a nuisance if they cause excessive smoke, fumes, or dust, resulting in damage to crops and vegetation or discomfort to neighboring residents”) and 85 NY Jur 2d, Premises Liability § 270 (addressing a landowner’s violation of a statute or regulation). The second case cited by plaintiffs, Kowalski v Goodyear Tire & Rubber Co. (841 F Supp 104 [WD NY 1994] [manufacturer of tires owed duty to employee’s spouse who allegedly became ill with cancer after exposure to tire chemicals on husband’s work clothes]), is a pre-Widera decision of a federal court interpreting New York law. Plaintiffs provided documentary evidence to show that the Port Authority knew, as early as 1969 when it was building the World Trade Center, that the spraying of asbestos fireproofing during construction presented a risk of harm to “bystanders.”

On January 16, 2003, Supreme Court granted the Port Authority’s motion for summary judgment in a one-sentence short-form order, “based on [the] Widera case and absence of duty to plaintiff.” On December 2, 2004, the Appellate Division modified Supreme Court’s order by reinstating plaintiffs’ first cause of action in common-law negligence because the Port Authority, which relied “almost exclusively on the Widera rationale that an employer owes no duty of care to nonemployees outside the workplace” (14 AD3d 112, 116 [1st Dept 2004]), thereby “failed to demonstrate a lack of duty as a matter of law” (id. at 121 n 2).

In reaching this conclusion, the Appellate Division distinguished Widera “because it involved the unique question of a tortfeasor’s liability to an infant for injuries occurring while in útero” (id. at 117); grounded the Port Authority’s duty on its status as a landowner; defined the scope of the Port Authority’s duty by reference to decisions in other jurisdictions that have held manufacturers and suppliers of asbestos products liable to injured third parties; and limited, its holding to “members of each employee’s household who were exposed at home to asbestos dust from an employee’s workplace clothes, hy washing the clothes or otherwise” (id. at 122). The Appellate Division subsequently granted leave and certified the following question to us: “Was the order of [the Appellate Division], which modified the order of the Supreme Court, properly made?”

II.

As we recently stated in Hamilton v Beretta U.S.A. Corp. (96 NY2d 222, 232 [2001]),

“[t]he threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff? Courts traditionally fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. Thus, in determining whether a duty exists, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree” (citations and internal quotation marks omitted).

Further, “[foreseeability, alone, does not define duty—it merely determines the scope of the duty once it is determined to exist” (id.; see also Pulka v Edelman, 40 NY2d 781, 785 [1976], rearg denied 41 NY2d 901 [1977] [“Foreseeability should not be confused with duty. The principle expressed in Palsgraf v Long Is. R.R. Co. . . . is applicable to determine the scope of duty— only after it has been determined that there is a duty”]). A specific duty is required because otherwise, a defendant would be subjected “to limitless liability to an indeterminate class of persons conceivably injured” by its negligent acts (Hamilton, 96 NY2d at 232 [citation and quotation marks omitted]). “Moreover, any extension of the scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs” (id.).

Hamilton also emphasizes our reluctance to extend liability to a defendant for failure to control the conduct of others. “This judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another” (id. at 233). Generally, such a duty may arise only

“where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others. Examples of these relationships include master and servant, parent and child, and common carriers and their passengers” (id.).

The “key” consideration critical to the existence of a duty in these circumstances is “that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm”; and that “the specter of limitless liability is not present because the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship” (id.).

In this case, plaintiffs begin their analysis of duty with a discussion of foreseeability; however, foreseeability bears on the scope of a duty, not whether a duty exists in the first place (see discussion at 493). As “[o]ther factors” to support a duty running from the Port Authority to Elizabeth Holdampf, plaintiffs adduce two kinds of relationships: the Port Authority’s status as an employer and as a landowner.

According to plaintiffs, the Port Authority’s status as an employer placed it in a position “to control or prevent [John Holdampf] from going home with asbestos-contaminated work clothes,” or at least to give “warnings to him and its other employees and through them, to the potential victims in their households.” Plaintiffs also suggest that “the Port Authority arguably had a relationship to some extent with Elizabeth Holdampf, through her relation as the spouse of one of its employees, who was the ‘carrier’ of the endangering risk” because she “was the beneficiary of various work-related benefits provided by the Port Authority, such as health care, life insurance and a pension, as well as government-provided benefits based on her husband’s employment, such as disability or Social Security benefits.”

At common law, an employer owed a duty to provide “a safe workplace” (see Widera, 204 AD2d at 307). New York has codified this common-law duty at Labor Law § 200, and the duty is limited to employees (see Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573 [1990] [Labor Law § 200, which codifies an employer’s common-law duty, does not extend to individuals who are not employees]). In Widera, the Appellate Division properly refused to recognize a cause of action for common-law negligence against an employer for injuries suffered by its employee’s family member, allegedly as a result of exposure to toxins brought home from the workplace on the employee’s work clothes (see also Ruffing v Union Carbide Corp., 1 AD3d 339 [2d Dept 2003] [following Widera, and finding that wife and child allegedly injured by exposure to chemicals on husband’s work clothes had no claim against husband’s employer]).

This is not a situation where there is a relationship “between defendant [the Port Authority] and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions” (Hamilton, 96 NY2d at 233), because there is no third-party tortfeasor in this case (cf. Pulka [defendant garage owner and third-party tortfeasor customer]; Purdy v Public Adm’r of County of Westchester, 72 NY2d 1 [1988] [defendants residential health care facility and its employee-director and third-party tortfeasor patient]; D'Amico v Christie, 71 NY2d 76 [1987] [defendant employer and third-party tortfeasor ex-employee]). Nor is this a situation where there is a relationship “between defendant [Port Authority] and plaintiff [Elizabeth Holdampf] that requires defendant to protect plaintiff from the conduct of others” (Hamilton, 96 NY2d at 233). Specifically, there is no relationship between the Port Authority and Elizabeth Holdampf—much less that of master and servant (employer and employee), parent and child or common carrier and passenger, the examples cited in Hamilton.

Although plaintiffs protest that the Port Authority was “in the best position to protect against the risk of harm” (id.) to Elizabeth Holdampf because it might have compelled John Holdampf to wear clean clothes home from work or to warn Elizabeth Holdampf about the dangers of washing his soiled uniforms, the Port Authority was, in fact, entirely dependent upon John Holdampf s willingness to comply with and carry out such risk-reduction measures. There is no authority suggesting that the Port Authority owed a duty of care to protect Elizabeth Holdampf against its allegedly negligent acts because she was a beneficiary of her husband’s work-related benefits, as plaintiffs maintain is “arguably” the case.

Although plaintiffs contend otherwise, the cases that they cite from other jurisdictions lend little or no support for the novel employer’s duty that they advance. In Kowalski, the Federal District Court denied an employer’s motion for summary judgment, finding that plaintiffs had supported their allegations of negligence and an employer’s duty of care running from the husband’s employer to his wife, who allegedly contracted cancer through exposure to her husband’s contaminated work clothes. As already noted, however, the court decided this case before the Appellate Division handed down Widera. Even more importantly, this case predates our decision in Hamilton (see Kowalski, 841 F Supp at 110 [while acknowledging that “(t)he rule set out in Pulka that a duty must be found before determining its scope through foreseeability is still good law in New York,” the court nonetheless proceeded to follow “the more dialectical approach to duty” by factoring foreseeability into the determination of whether a duty existed]).

In Zimko v American Cyanamid (905 So 2d 465 [La Ct App, 4th Cir 2005]), plaintiff sued his father’s employer claiming injury from exposure to asbestos dust that his father allegedly brought into the family home on his work clothes. The court summarized the Appellate Division’s decision in this case, and, without providing an independent analysis, concluded that the father’s employer owed a duty of care to the son.

In CSX Transp., Inc. v Williams (278 Ga 888, 608 SE2d 208 [2005]), plaintiffs alleged that they were exposed to asbestos on their fathers’ or husband’s work clothing and sued the employer in negligence. The Supreme Court of Georgia, answering a certified question from the United States Court of Appeals for the Eleventh Circuit, declined to follow the Appellate Division’s decision in this case. Instead, Georgia’s highest court followed Widera, holding that “an employer’s duty to provide a safe workplace does not extend to persons outside the workplace” (278 Ga at 892, 608 SE2d at 210).

Plaintiffs alternatively advocate for a duty of care grounded in the Port Authority’s status as a landowner. A landowner generally must “exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside of his premises” (Prosser and Keeton, Torts § 57, at 387 [5th ed]). In this regard, the Appellate Division has recognized that a landowner’s duty of reasonable care can run to the surrounding community when mining practices carried out on the landowner’s property cause the negligent release of toxins into the ambient air (see Baker, 260 AD2d 750 [1999]).

As the Port Authority points out, however, the facts alleged in this case are far different from the facts in Baker. Here, the Port Authority did not discharge toxins into the atmosphere. Rather, plaintiffs allege that the Port Authority was aware that asbestos-containing products handled by John Holdampf at work might result in off-site exposure when he left the workplace wearing soiled work clothes, but failed to warn or to provide him with adequate instructions so that he might communicate information about this risk to his spouse.

Plaintiffs also urge us to adopt the reasoning of Olivo v Exxon Mobil Corp. (377 NJ Super 286, 872 A2d 814 [Super Ct, App Div 2005], certification granted 185 NJ 39, 878 A2d 855 [2005]). There, plaintiff sued Exxon Mobil, the owner of one of the premises where he worked with asbestos-containing products while employed by other entities as a welder/steamfitter. Plaintiffs wife died from mesothelioma, allegedly as a result of her exposure to asbestos while laundering his work clothes.

The intermediate New Jersey appellate court followed the Appellate Division’s decision in this case, concluding that Exxon Mobil owed a duty as a landowner. The court reasoned that under New Jersey law, manufacturers and suppliers of asbestos-containing products owe a duty of care to third parties, and that there was no reason not to extend a similar duty to a landowner. As already noted, however, we have never considered whether manufacturers and suppliers of asbestos-containing products owe a duty of care to third parties. Moreover, “[o]nce the foreseeability of an injured party is established,” duty comes down to a question of fairness under New Jersey law (377 NJ Super at 295, 872 A2d at 820). The court concluded that Exxon Mobil was in the best position to prevent harm and could have done so easily by providing laundry and shower services. Thus, it was foreseeable that the wife of a worker would be injured by exposure to her husband’s work clothes, and fair to impose a duty (cf. Nelson, From Fairness to Efficiency: The Transformation of Tort Law in New York, 1920-1980, 47 Buff L Rev 117 [1999] [discussing generally the shift in emphasis in New York’s tort law from fairness and moral blameworthiness to efficiency and deterrence]).

Olivo is distinguishable legally in that New Jersey, unlike New York, relies heavily on foreseeability in its duty analysis. Moreover, Olivo can be distinguished factually in that the landowner did nothing to prevent workers from bringing asbestos-covered clothing into the family home—an important component of that court’s duty analysis—whereas here, the Port Authority provided laundry services to John Holdampf, which is relevant under New York law as to whether the Port Authority breached any duty that it may have owed Elizabeth Holdampf.

In sum, plaintiffs are, in effect, asking us to upset our long-settled common-law notions of an employer’s and landowner’s duties. Plaintiffs assure us that this will not lead to “limitless liability” because the new duty may be confined to members of the household of the employer’s employee, or to members of the household of those who come onto the landlord’s premises. This line is not so easy to draw, however. For example, an employer would certainly owe the new duty to an employee’s spouse (assuming the spouse lives with the employee), but probably would not owe the duty to a babysitter who takes care of children in the employee’s home five days a week. But the spouse may not have more exposure than the babysitter to whatever hazardous substances the employee may have introduced into the home from the workplace. Perhaps, for example, the babysitter (or maybe an employee of a neighborhood laundry) launders the family members’ clothes. In short, as we pointed out in Hamilton, the “specter of limitless liability” is banished only when “the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship” (Hamilton, 96 NY2d at 233). Here, there is no relationship between the Port Authority and Elizabeth Holdampf.

Finally, we must consider the likely consequences of adopting the expanded duty urged by plaintiffs. While logic might suggest (and plaintiffs maintain) that the incidence of asbestos-related disease allegedly caused by the kind of secondhand exposure at issue in this case is rather low, experience counsels that the number of new plaintiffs’ claims would not necessarily reflect that reality.

Accordingly, the order of the Appellate Division should be reversed, with costs; the order of Supreme Court reinstated; and the certified question answered in the negative.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur; Chief Judge Kaye taking no part.

Order reversed, etc.

      . Elizabeth Holdampf testified to several additional sources of potential asbestos exposure. Specifically, she worked for New York Airways Helicopter Service from 1962 to 1973 as a clerk in offices in two hangers at LaGuardia Airport. She thought that she “could have been” exposed to asbestos during her employment at LaGuardia, but she could not identify any asbestos-containing product present in the workplace. Her father was a mechanic who worked on brake linings, and as a child she often met her father when he arrived at the bus stop after work, and carried his bundled, soiled work clothes home; she also helped her mother launder them. As an adult, she assisted in cleaning up scrap when her husband replaced asbestos shingles on the family home’s roof and later, when he replaced asbestos siding with vinyl siding. Further, from some time before 1971 until 1996 John Holdampf moonlighted as a self-employed automobile repairman who worked on roughly 100 cars a year. He “replaced worn-out clutches which they turned to powder when you are working on them, [and] brake shoes constantly,” usually in the family home’s attached garage with the overhead door closed, but sometimes in the driveway. As he described a “brake job,” when he disassembled the brake system, it would be “all full of brake dust, brake powders,” and “[y]ou clean it with a solvent or, years ago, it used to be a blow gun,” which for “[a] minute or two . . . would create a major dust storm.”

      . The most common form of mesothelioma, a rare and deadly cancer, affects the pleura, the membrane or sac lining the lungs. According to the National Cancer Institute, a history of asbestos exposure at work is reported in about 70% to 80% of all cases; however, mesothelioma has been reported in some individuals without any known exposure to asbestos (see <http:// www.cancer.gov/cancertopics/factsheet/Sites-Types/mesothelioma>, cached at <http://www.courts.state.ny.us/reporter/webdocs/nci_mesothelioma.htm>).

      . Plaintiffs’ brief indicates that “[a]ll defendants in this case [which include 30 plus manufacturers and suppliers] other than the Port Authority have already settled Plaintiffs’ claims.”

      . We have never considered whether a manufacturer or supplier of an asbestos-containing product is liable for injuries to third parties, or caused by so-called secondhand exposure.


author: Graffeo, J.

text:
    [840 NE2d 577, 806 NYS2d 465]
    In the Matter of Visiting Nurse Service of New York Home Care, Respondent, v New York State Department of Health et al., Appellants.
    Argued October 18, 2005;
    decided November 17, 2005

      POINTS OF COUNSEL

      Eliot Spitzer, Attorney General, Albany (Victor Paladino, Caitlin J. Halligan, Da,niel Smirlock and Andrea Oser of counsel), for appellants.
    I. Visiting Nurse Service of New York Home Care lacks a protected property interest in payments that are expressly made subject to compliance with third-party billing obligations. (Matter of Daxor Corp. v State of N.Y. Dept. of Health, 90 NY2d 89, 937, 523 US 1074; Matter of Astor Gardens Health Care Ctr. v Novello, 304 AD2d 961; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 476 US 1115; Concourse Nursing Home v State of New York, 1 AD3d 675, 2 NY3d 704; Alliance of Am. Insurers v Chu, 77 NY2d 573; Matter of Medicon Diagnostic Labs. v Perales, 74 NY2d 539; St. Joseph’s Hosp. Health Ctr. v Department of Health of State of N. Y., 247 AD2d 136, 93 NY2d 803; Gold v United Health Servs. Hosps., 95 NY2d 683; Calvanese v Calvanese, 93 NY2d 111; Cricchio v Pennisi, 90 NY2d 296.) II. Visiting Nurse Service of New York Home Care received all the process due. (Matter of Daxor Corp. v State of N.Y. Dept. of Health, 90 NY2d 89; Matter of Bronx-Lebanon Special Care Ctr. v DeBuono, 269 AD2d 195, 95 NY2d 752; Matter of Medicon Diagnostic Labs. v Perales, 74 NY2d 539; Mathews v Eldridge, 424 US 319; Matter of Astor Gardens Health Care Ctr. v Novello, 304 AD2d 961; Jordan Hosp., Inc. v Shalala, 276 F3d 72, 537 US 812; St. Joseph’s Hosp. Health Ctr. v Department of Health of State of N.Y., 247 AD2d 136; Matter of A.

      Holly Patterson SNF v Chassin, 196 AD2d 155, 83 NY2d 962; Matter of Rego Park Nursing Home v Perales, 206 AD2d 781; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169.) III. Even if Visiting Nurse Service of New York Home Care was entitled to a hearing, it was error to enjoin the recoupments because Visiting Nurse was entitled only to a postrecoupment hearing. (Clove Lakes Nursing Home v Whalen, 45 NY2d 873; Matter of Fahey v Perales, 141 AD2d 934; Matter of White Plains Nursing Home v Axelrod, 131 AD2d 24; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169.)

      Manatt, Phelps & Phillips, LLP, Albany {James W. Lytle of counsel), for respondent.
    I. The courts below properly held that appellants deprived Visiting Nurse Service of New York Home Care (VNS) of property without due process when they denied VNS a hearing to contest the recoupment of Medicaid payments. (Oberlander v Perales, 740 F2d 116; Matter of White Plains Nursing Home v Whalen, 53 AD2d 926; Furlong v Shalala, 156 F3d 384; Rockland Medilabs, Inc. v Perales, 719 F Supp 1191; Matter of Astor Gardens Health Care Ctr. v Novello, 304 AD2d 961; Matter of Sylcox v Chassin, 227 AD2d 834; Matter of Daxor Corp. v State of N.Y. Dept. of Health, 90 NY2d 89; Matter of Medicon Diagnostic Labs. v Perales, 74 NY2d 539; Board of Regents of State Colleges v Roth, 408 US 564; Plaza Health Labs., Inc. v Perales, 878 F2d 577.) II. Appellants’ own regulations preclude appellants from recouping Medicaid funds from health care providers unless reimbursement is actually received from the liable third-party payor. (State of New York v Hollander, 245 AD2d 625; St. Joseph’s Hosp. Health Ctr. v Department of Health of State of N.Y., 247 AD2d 136; Matter of Good Shepherd-Fairview Home v Axelrod, 171 AD2d 317; Matter of Buffalo Columbus Hosp. v Axelrod, 165 AD2d 605; Wesley Health Care Ctr., Inc. v DeBuono, 244 F3d 280; James Sq. Nursing Home, Inc. v Wing, 897 F Supp 682.) III. Federal regulations and policy directives require appellants to seek recovery of payment directly from liable third-party payors and not from health care providers. (Matter of New York State Assn. of Homes & Servs. for Aging v Perales, 179 AD2d 296; Jewish Home & Hosp. for Aged v Wing, 91 F Supp 2d 593.)

      Phillips Lytle LLP, Buffalo {Lisa McDougall and William P. Keefer of counsel), for Mercy Hospital of Buffalo and others, amici curiae.
    I. Providers are entitled to a hearing. (Clove Lakes Nursing Home v Whalen, 45 NY2d 873; Allen v Blum, 85 AD2d 228, 58 NY2d 954; Mathews v Eldridge, 424 US 319; Board of

      Regents of State Colleges v Roth, 408 US 564; Matter of Bradley v Whalen, 58 AD2d 664; Matter of Park Crescent Nursing Home v Whalen, 55 AD2d 801; Crane v Axelrod, 86 AD2d 923; Washington Nursing Ctr., Inc. v Quern, 442 F Supp 23; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169; Goldberg v Kelly, 397 US 254.)

      Gleason, Dunn, Walsh & O’Shea, Albany (Thomas F. Gleason of counsel), for Home Care Association of New York State, Inc., amicus curiae.
    I. The Medicaid Maximization program as implemented by appellants deprives providers of due process of law and violates appellants’ own regulations. (Oberlander v Perales, 740 F2d 116; Matter of White Plains Nursing Home v Whalen, 53 AD2d 926; Furlong v Shalala, 156 F3d 384; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169; Matter of Astor Gardens Health Care Ctr. v Novello, 304 AD2d 961; United States ex rel. Thompson v Columbia/HCA Healthcare Corp., 125 F3d 899.) II. The Medicaid Maximization program as implemented by appellants illegally delegates power to the Center for Medicare Advocacy. (Matter of Schumer v Holtzman, 60 NY2d 46; Greater Poughkeepsie Lib. Dist. v Town of Poughkeepsie, 81 NY2d 574; Matter of Saumell v New York Racing Assn., 58 NY2d 231; Matter of Fink v Cole, 302 NY 216.)
   OPINION OF THE COURT

Graffeo, J.

The issue in this case is whether a home health care provider is entitled to notice and an opportunity to be heard before the State acts to recover Medicaid payments it claims were improperly paid to the provider. Based on regulations promulgated by the New York State Department of Health, we agree with the courts below that a hearing must be held regarding recoupment of the Medicaid funds in dispute.

Medicare and Medicaid are two primary sources of payment for home health care services rendered by providers such as petitioner Visiting Nurse Service of New York Home Care (VNS). There are, however, significant differences between these government-sponsored programs. Medicare is a federal program that provides reimbursement for the medical expenses of persons eligible for Social Security benefits; it is administered exclusively by the United States Department of Health and Human Services (see Social Security Act tit XVIII [42 USC § 1395 et seq.J). Providers submit claims to the federal agency’s fiscal intermediary for evaluation (see 42 CFR 424.32 [a] [1]) and this assessment process uses criteria established by federal law and regulations. Providers can pursue an administrative appeal procedure for rejected claims (see e.g. 42 CFR 405.710 et seq.; 42 CFR 405.724).

The Medicaid program pays for medical and health services supplied to individuals who fall below a certain income threshold (see Social Security Act tit XIX [42 USC § 1396 et seq.]). Unlike Medicare, which is fully funded by the federal government, in New York, the State and its counties contribute to the payment of Medicaid-eligible claims (see 42 USC § 1396a [a] [2]; §§ 1396b, 1396d [b]). Because of this joint participation, in addition to providing Medicaid coverage for an array of medical and health services specified under federal law, a state may establish its own eligibility criteria, expand the types of services that qualify for coverage and set rates for reimbursement (see generally 42 USC § 1396d [a]; § 1396o [c] [1]; [d]; § 1396r-l [a]; 42 CFR 440.225, 460.2 [b]).

Health care providers file Medicaid reimbursement claims with the New York State Department of Health (DOH) in accordance with state law and regulations (see Public Health Law §201 [1] [v]; Social Services Law § 363-a [1]). Medicaid is referred to as a “ ‘payor of last resort’ ” under federal law because other potential sources of payment, such as Medicare, must be exhausted before claims are paid by Medicaid (Gold v United Health Servs. Hosps., 95 NY2d 683, 690-691 [2001], quoting S Rep No. 146, 99th Cong, 2d Sess, at 1, 312, reprinted in 1986 US Code Cong & Admin News, at 42, 279; see 42 USC § 1396a [a] [25]). Accordingly, participating providers are required to determine whether health care expenses can be submitted in the first instance to Medicare or some other payor before submission to Medicaid (see 18 NYCRR 540.6 [e] [1], [2], [6]). This assessment is particularly critical for persons who are dually eligible for health services under both Medicare and Medicaid.

At the time of Medicaid claim submission, the State does not know what efforts were taken by providers to secure payment from other sources, including Medicare. Medicaid claims are therefore subject to postpayment review through the Medicaid Maximization program (MedMax). New York has contracted with a private entity—the Center for Medicare Advocacy (CMA)—to perform MedMax claim eligibility review. CMA is charged with evaluating whether health care claims that were paid by Medicaid should have been submitted for reimbursement to Medicare or another payor. If CMA identifies improperly disbursed payments, it assists DOH in recovering the funds previously paid to providers.

During the time frame relevant to this appeal (October 1993 to September 1998), VNS billed Medicaid for approximately $1.7 billion in health care services. After conducting the Med-Max review and finding that certain recipients were dually eligible, CMA concluded that $38.2 million of those Medicaid payments should have qualified for reimbursement by Medicare or other third-party payors. Upon resubmission to Medicare, the federal program paid about $28.4 million to VNS and, in turn, VNS refunded an almost identical amount to the State to satisfy the improper Medicaid charges. Medicare did not, however, accept the remaining approximately $10 million of VNS claims because too much time had elapsed from the date the health care services were rendered, or due to errors by the provider. These so-called “provider liability” claims—those disputed Medicaid payments for which VNS was not able to receive compensation by Medicare or another payor—are the subject of this dispute.

DOH began to offset the outstanding $10 million in alleged improper Medicaid payments by withholding other Medicaid revenue due VNS. As a consequence, by December 2002, DOH had recouped over $2 million. VNS responded by initiating this CPLR article 78 proceeding challenging the State’s withholding of Medicaid funds, asserting that it was not obligated to repay Medicaid unless it had actually received payment for the services provided from Medicare or some other source. VNS also contested DOH’s recoupment procedures on the ground that no administrative hearing had been available for VNS to contest DOH’s actions.

Supreme Court granted the provider’s petition, concluding that VNS had a property interest in the Medicaid payments that was protected by due process and, as such, DOH was required to conduct a hearing before recovering Medicaid funds from VNS. The Appellate Division affirmed, similarly ruling that VNS was entitled to a hearing to determine if reasonable measures had been undertaken to assess whether the disputed claims were eligible for payment by Medicare or other third-party payors before submission to Medicaid. State recoupment efforts were stayed by the Court because DOH had failed to comply with its own regulatory time frames for conducting hearings. The Appellate Division did, however, agree with DOH’s contention that recoupment of provider liability claims was permissible in those instances where VNS failed to engage in reasonable efforts to ascertain whether services were Medicaid-eligible and to satisfy any conditions of approval by that program. Upon the Appellate Division’s certification of a question to us, we conclude that a hearing must be held on the issue of whether VNS took reasonable measures to ensure the proper designation and processing of claims.

DOH argues that notice and an opportunity to be heard need not be provided to VNS before recoupment efforts are undertaken because Medicaid payments to home health care providers are conditional pending postpayment MedMax review. But this contention is inconsistent with the regulatory scheme promulgated by DOH. Nothing in the relevant regulations indicates that payments to home health care providers are contingent on postpayment audits (see 18 NYCRR 505.23 [e]; see also 18 NYCRR parts 517, 518, 519). DOH’s reliance on the regulatory provisions that govern payments to nursing homes is misplaced since those regulations specifically state that reimbursement rates are “provisional” until an “audit is performed and completed” (10 NYCRR 86-2.7; see Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 178-179 [1985]). A similar condition does not appear in the regulations pertaining to home health care providers (see 18 NYCRR 505.23 [e]).

Instead, the regulations that cover home health care providers state that if DOH “determine^] that any person has submitted or caused to be submitted claims for medical care, services or supplies for which payment should not have been made, it may require repayment of the amount determined to have been overpaid” (18 NYCRR 518.1 [b]). “Overpayment” is defined as “any amount not authorized to be paid under the medical assistance program, whether paid as the result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse or mistake” (18 NYCRR 518.1 [c]). “[W]hen a determination is made that an overpayment has been made, any person from whom recovery is sought is entitled to a notice of the overpayment and an opportunity to be heard” (18 NYCRR 518.5 [a]) unless “the department or its fiscal agent adjusts or denies a claim prior to payment or withholds payment pursuant to a notice of withholding” (18 NYCRR 518.5 [b]).

DOH contends that its “overpayment” definition is a term of art that it has interpreted to exclude provider liability claims and, consequently, VNS does not have a right to a hearing under 18 NYCRR 518.5 (a). Although it is true that an agency’s interpretation of its own regulation generally is entitled to deference, courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language (see Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337, 342 [2004]). The funds sought to be recovered by DOH fall within the broad definition of “overpayment” in 18 NYCRR 518.1 (c) and, therefore, deference to DOH’s interpretation is not warranted under the circumstances. As a result, VNS has the right to “notice of the overpayment and an opportunity to be heard” on the issue of overpayment recoupment (18 NYCRR 518.5 [a]; see 18 NYCRR 519.4 [a]).

We next address whether DOH was properly ordered to cease recoupment pending the administrative hearing. VNS concedes that, as a general proposition, DOH is not required to conduct a hearing prior to seeking recoupment of Medicaid funds (see Clove Lakes Nursing Home v Whalen, 45 NY2d 873, 875 [1978]). Departmental regulations permit recoupment efforts to commence prior to a hearing (see 18 NYCRR 518.8). Significantly, the same regulation further provides that “if the department is unable to proceed within 90 days of receipt of [a] request [for a hearing], any recovery . . . will be stayed pending the commencement of the hearing” and “any delays . . . occasioned by or attributable to the department will forestall the commencement or continuation of recoupment” (18 NYCRR 518.8 [b]). In light of DOH’s failure to comply with the prescribed 90-day time frame, it was properly barred from continuing to withhold the Medicaid payments in this case pending an administrative hearing.

As the courts below also concluded, the purpose of the hearing will be to consider whether VNS should be relieved of its obligation to repay the contested Medicaid claims. A health care provider is not required to reimburse DOH for services that were paid by Medicaid if the provider ‘‘produce [s] acceptable documentation to the department that the provider reasonably attempted to ascertain and satisfy any conditions of approval or other claiming requirements of liable third-party payors” (18 NYCRR 540.6 [e] [6]). Whether a provider satisfies this test requires examination of both the provider’s initial assessment that a claim was not eligible for Medicare or other third-party reimbursement and its actions after being notified that a Medicaid-reimbursed claim should be resubmitted to a different payor. At the hearing, the burden will be on VNS to prove that it acted reasonably when it decided to submit the claims at issue to Medicaid rather than to Medicare or other payors and when it was subsequently notified by CMA that certain claims should be resubmitted for Medicare reimbursement eligibility. Recoupment by DOH is prohibited only with respect to claims for which VNS acted reasonably in both instances.

Finally, VNS asks us to decide whether federal law precludes DOH from seeking reimbursement for provider liability claims. VNS, however, did not cross-move to appeal and therefore may not obtain affirmative relief in this Court (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151 n 3 [2002]).

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

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

Order affirmed, etc.

      . Medicare regulations deem a claim to be timely if it is submitted by the end of the calendar year that follows the fiscal year during which the health care service was provided (i.e., a service provided during fiscal year 2000-2001 had to be submitted by December 31, 2002) (see 42 CFR 424.44 [a]).

      . The Appellate Division, Third Department, asked: “Did this Court err, as a matter of law, in affirming the judgment of Supreme Court, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Department of Health directing recoupment of Medicaid overpayments made to petitioner?”

      . It is unnecessary for us to address DOH’s argument that due process is satisfied by the MedMax review procedure because a distinct administrative hearing is compelled by the cited regulations.


text:
    [840 NE2d 563, 806 NYS2d 451]
    Christopher Hiraldo, an Infant, by His Mother and Natural Guardian, Alexandria Hiraldo, et al., Appellants, v Allstate Insurance Company, Respondent, et al., Defendants.
    Argued September 15, 2005;
    decided October 25, 2005

      POINTS OF COUNSEL

      Mirman, Markovits & Landau, EC., New York City (Ephrem J. Wertenteil of counsel), for appellants.
    I. Plaintiff is entitled to the proceeds from each policy period that he continued to be exposed to lead paint. (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; Serio v Public Serv. Mut. Ins. Co., 304 AD2d 167; United States Liab. Ins. Co. v Farley, 215 AD2d 371; American Empire Ins. Co. v PSM Ins. Cos., 259 AD2d 341; General Acc. Ins. Co. of Am. v IDBAR Realty, 229 AD2d 515.) II. The policy intends to limit stacking of the policy limits for only one policy period. III. Reasonable expectation analysis supports appellants’ interpretation of the policy. (Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321; National Union Fire Ins. Co. of Pittsburgh, Pa. v Farmington Cas. Co., 1 Misc 3d 671; Matter of Midland Ins. Co., 269 AD2d 50.)

      Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York City {Barry I. Levy and Beth Shapiro of counsel), for respondent.
    I. Principles involving the trigger of coverage and the allocation of risk are not relevant to the determination of this appeal. (Greenidge v Allstate Ins. Co., 312 F Supp 2d 430; Matter of Midland Ins. Co., 164 Misc 2d 363, 269 AD2d 50; Northville Indus. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621; Technicon Elees. Corp. v American Home Assur. Co., 74 NY2d 66; United States Liab. Ins. Co. v Farley, 215 AD2d 371; American Empire Ins. Co. v PSM Ins. Cos., 259 AD2d 341; General Acc. Ins. Co. of Am. v IDBAR Realty Corp., 229 AD2d 515; Sybron Transition Corp. v Security Ins. of Hartford, 258 F3d 595; Insurance Co. of N. Am. v Forty-Eight Insulations, Inc., 633 F2d 1212; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208.) II. Appellants’ proposed interpretation of the Allstate Insurance Company policy is not consistent with the actual language of the insuring agreement. (Johnson v Travelers Ins. Co., 269 NY 401; Newmont Mines Ltd. v Hanover Ins. Co., 784 F2d 127; Champion Intl. Corp. v Continental Cas. Co., 546 F2d 502; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; Michaels v Mutual Mar. Off., Inc., 472 F Supp 26; Appalachian Ins. Co. v Liberty Mut. Ins. Co., 676 F2d 56; South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272; Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352; Matter of Midland Ins. Co., 269 AD2d 50; Greenidge v Allstate

      Ins. Co., 312 F Supp 2d 430.) III. The noncumulation clause within the Allstate Insurance Company policy is clear and unambiguous. (Seiden Assoc., Inc. v ANC Holdings, Inc., 959 F2d 425; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Aetna Cas. & Sur. Co. v Aniero Concrete Co., Inc., 404 F3d 566; Government Empls. Ins. Co. v Kligler, 42 NY2d 863; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Maurice Goldman & Sons v Hanover Ins. Co., 80 NY2d 986; Greenidge v Allstate Ins. Co., 312 F Supp 2d 430; Excess Ins. Co. Ltd. v Factory Mut. Ins. Co., 3 NY3d 577; Breed v Insurance Co. of N. Am., 46 NY2d 351; County of Columbia v Continental Ins. Co., 83 NY2d 618.)

      Levy, Phillips & Konigsberg, LLP, New York City (.Philip Monier, III, of counsel), for Levy, Phillips & Konigsberg, LLP amicus curiae.
    I. The subject policy provision is ambiguous and should be construed in favor of coverage. (Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; National Union Fire Ins. Co. of Pittsburgh, Pa. v Farmington Cas. Co., 1 Misc 3d 671; Serio v Public Serv. Mut. Ins. Co., 304 AD2d 167; American Home Prods. Corp. v Liberty Mut. Ins. Co., 565 F Supp 1485, 748 F2d 760; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; Greenidge v Allstate Ins. Co., 312 F Supp 2d 430.) II. The term “one accidental loss” can either mean all continuous exposure during the policy period or all continuous exposure from the beginning of time. (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; Greenidge v Allstate Ins. Co., 312 F Supp 2d 430; Matter of Midland Ins. Co., 269 AD2d 50; Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390.) III. Although policy form AU2069 prevents payment of concurrent policies, the policy does not contain a noncumulation clause or other language which would allow Allstate Insurance Company to avoid its obligation to pay successive policies. (K. Bell & Assoc., Inc. v Lloyd’s Underwriters, 97 F3d 632; Readco, Inc. v Marine Midland Bank, 81 F3d 295; Alexander & Alexander Servs., Inc. v These Certain Underwriters at Lloyd’s, London, 136 F3d 82; Lightfoot v Union Carbide Corp., 110 F3d 898; Seiden Assoc., Inc. v ANC Holdings, Inc., 959 F2d 425; McCostis v Home Ins. Co. of Ind., 31 F3d 110; Morgan Stanley Group, Inc. v New England Ins. Co., 225 F3d 270; Matter of Midland Ins. Co., 269 AD2d 50; Endicott Johnson Corp. v Liberty Mut. Ins. Co., 928 F Supp 176; Champion Intl. Corp. v Liberty Mut. Ins. Co., 701 F Supp 409.)

      Rivkin Radler LLP, Uniondale CEvan Krinick, Alan Eagle,

      Cheryl Korman and Jason Gurdus of counsel), for Property Casualty Insurers Association of America and another, amici curiae.
    The noncumulation clause in the Allstate Insurance Company policies expressly limits coverage to one policy limit. (Matter of Midland Ins. Co., 269 AD2d 50; Champion Intl. Corp. v Liberty Mut. Ins. Co., 701 F Supp 409, 758 F Supp 127; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368; Michaels v Mutual Mar. Off., Inc., 472 F Supp 26; Greenidge v Allstate Ins. Co., 312 F Supp 2d 430; Shared-Interest Mgt. v CNA Fin. Ins. Group, 283 AD2d 136, 97 NY2d 701; Endicott Johnson Corp. v Liberty Mut. Ins. Co., 928 F Supp 176, 116 F3d 53; Sybron Transition Corp. v Security Ins. of Hartford, 258 F3d 595; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Greater N.Y. Mut. Ins. Co. v Royal Ins. Co., 238 AD2d 261.)
   OPINION OP THE COURT

R.S. Smith, J.

Allstate Insurance Company issued a $300,000 liability policy for a term of one year. Upon its expiration, the policy was renewed for another year, and then again for a third. Plaintiff Christopher Hiraldo was allegedly exposed to lead paint continuously during the terms of all three policies. The question is whether, if that allegation is true, the available insurance coverage is $300,000 or $900,000.

The clear language of the policies answers the question: the exposure caused only a single loss, and Allstate’s liability is limited to $300,000, even though several policies are involved.

Facts and Procedural History

Christopher was born on August 21, 1990, and lived with his mother, plaintiff Alexandria Hiraldo, at 156 Norwood Avenue in Brooklyn until November 1993. Plaintiffs allege that Christopher was exposed to lead paint throughout the time he lived in the building, and suffered neurological injuries as a result.

Allstate provided the owners of the building with liability coverage. The first of the policies at issue here took effect on February 15, 1991, and its “policy period” extended for one year. A second one-year policy became effective on February 15, 1992 and a third on February 15, 1993. Each policy provided $300,000 in liability coverage, and the policies were identical in all other relevant respects. Each policy provided: “This policy applies only to losses which occur during the policy period, as shown on the declarations page.” Each also included a so-called “noncumulation clause,” as follows:

“Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability under Business Liability Protection coverage for damages resulting from one loss will not exceed the limit of liability for Coverage X shown on the declarations page. All bodily injury, personal injury and property damage resulting from one accident or from continuous or repeated exposure to the same general conditions is considered the result of one loss.” (Emphasis added.)

Christopher and his mother sued their landlords for Christopher’s injuries, and obtained judgments totaling approximately $700,000. Allstate paid $300,000 into court, and asserted that that payment discharged its liability. Plaintiffs disagreed and brought this action to recover from Allstate the rest of the landlords’ obligation. Supreme Court granted summary judgment dismissing the complaint, and the Appellate Division affirmed. We granted leave to appeal, and now affirm.

Discussion

Christopher’s injuries allegedly resulted from “continuous . . . exposure to the same general conditions” and so from “one loss” within the meaning of each policy. Plaintiffs contend, however, that, since the loss occurred during each of three policy periods, and each policy applies “to losses which occur during the policy period,” Allstate is liable up to its policy limit under each policy. We disagree.

But for the noncumulation clause in the policies, this would be a difficult case. Intuitively it does not seem right that an insurer that never issued more than $300,000 in coverage could be liable for $900,000 for a single loss. Thus, an Appellate Division case involving claims for exposure to asbestos holds that “the limit of liability, where an insurer has issued renewal policies, shall be the policy limits for one policy” (Matter of Midland Ins. Co., 269 AD2d 50, 60 [1st Dept 2000]). Yet this result is also counterintuitive: If each of the successive policies had been written by a different insurance company, presumably each insurer would be liable up to the limits of its policy. Why should plaintiffs recover less money because the same insurer wrote them all? Some courts have held that successive policy limits may be cumulatively applied to a single loss, where the policies do not clearly provide otherwise. (National Union Fire Ins. Co. of Pittsburgh, Pa. v Farmington Cas. Co., 1 Misc 3d 671 [Sup Ct, NY County 2003]; Riley v United Servs. Auto. Assn., 161 Md App 573, 871 A2d 599 [Ct Spec App 2005].)

But here, the policies do clearly provide otherwise. The noncumulation clause says that “[r]egardless of the number of . . . policies involved, [Allstate’s] total liability under Business Liability Protection coverage for damages resulting from one loss will not exceed the limit of liability . . . shown on the declarations page.” That limit is $300,000, and thus Allstate is liable for no more. We agree with the recent decisions of three Federal District Court judges, applying New York law and interpreting identical policy language, that the noncumulation clause is fatal to plaintiffs’ claim (see Bahar v Allstate Ins. Co., 2004 WL 1782552, 2004 US Dist LEXIS 15612 [SD NY, Aug. 9, 2004]; Greene v Allstate Ins. Co., 2004 WL 1335927, 2004 US Dist LEXIS 10860 [SD NY, June 15, 2004]; Greenidge v Allstate Ins. Co., 312 F Supp 2d 430 [SD NY 2004]).

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

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

Order affirmed, with costs.


text:
    [840 NE2d 565, 806 NYS2d 453]
    Cheryl Andrea et al., Appellants, v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C. (Habiterra Associates) et al., Defendants, and Tiede-Zoeller, Inc., Respondent. (Action No. 1.) Mark Foster et al., Appellants, v Jamestown Public Schools et al., Respondents, et al. Defendants. (Action No. 2.)
    Argued September 13, 2005;

    decided October 27, 2005

      POINTS OF COUNSEL

      Lewis & Lewis, P.C., Buffalo {Allan M. Lewis and Emily L. Downing of counsel), for appellants.
    CPLR 205 (a) grants plaintiffs the right to refile these actions. (Gaines v City of New York, 215 NY 533; Schuman v Hertz Corp., 17 NY2d 604; George v Mt. Sinai Hosp., 47 NY2d 170; Moran v Rynar, 39 AD2d 718; Neyra Y Alba v Pelham Foods, 46 AD2d 760; Paoli v Sullcraft Mfg. Co., 104 AD2d 333; Corven Assoc. v American Home Assur. Corp., 84 NY2d 927; Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614.)

      Nixon Peabody LLP, Buffalo (.Laurie Styka Bloom of counsel); Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel); Elbert Hargesheimer, III, Hamburg; Hagerty & Brady, Buffalo (Thomas V. Hagerty of counsel); Feldman, Kieffer & Herman, LLP (Mark S. Nemeth of counsel); Quinn, McGarry, Caffery & Patricia, PC. (John P. Quinn, Jr. of counsel); Colucci & Gallaher, PC (Todd C. Bushway of counsel); Brown & Kelly, LLP (Mark J. Schaefer of counsel); Kenney, Shelton, Liptak & Nowak, LLP (Thomas E. Liptak of counsel) and Hinshaw & Culbertson, Chicago, Illinois (Carlton D. Fisher of counsel), for Amone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, EC. (Habiterra Associates) and others, respondents.
    I. CPLR 205 (a) does not apply and provides no basis for relief to plaintiffs. (Poulos v U-Haul Intl., 303 AD2d 480; Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 271 NY 531; Snyder v Town Insulation, 81 NY2d 429; Consorti v Owens-Corning Fiberglas Corp., 86 NY2d 449; MacIntosh v Bronzo, 302 AD2d 434; Williams v Jian Chu Yu, 207 AD2d 442; Ivory v Ekstrom, 98 AD2d 763; Alaimo v Velco Enters., 234 AD2d 325; Ginsberg v City of Long Beach, 191 AD2d 478; Kelly v Rosenthal, 176 AD2d 283, 79 NY2d 751.) II. Plaintiffs failed to meet any of the conditions precedent to application of CPLR 205. (Lehman Bros, v Hughes Hubbard & Reed, 92 NY2d 1014; Cheney v National Sur. Corp., 256 App Div 1041, 283 NY 603; Dorst v Eggers Partnership, 265 AD2d 294; Pyne v 20 E. 35 Owners Corp., 267 AD2d 168; Slate v Schiavone Constr. Co., 4 NY3d 816; Brill v City of New York, 2 NY3d 648; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725.)

      Dean Law Firm P.C., Grand Island (Robert A. Dean of counsel), for Tiede-Zoeller, Inc., respondent.
    I. Plaintiffs-appellants are not entitled to reinstitute their actions since their prior actions were dismissed for their willful and repeated refusal to obey court orders directing disclosure. (Kihl v Pfeffer, 94 NY2d 118; Keel v Parke, Davis & Co., 50 NY2d 833; Flans v Federal Ins. Co., 43 NY2d 881; Alaimo v Velco Enters., 234 AD2d 325; Williams v Jian Chu Yu, 207 AD2d 442; Kelly v Rosenthal, 176 AD2d 283; Ivory v Ekstrom, 98 AD2d 763; Corven Assoc. v American Home Assur. Corp., 84 NY2d 927; Schuman v Hertz Corp., 17 NY2d 604; Brill v City of New York, 2 NY3d 648.) II. Plaintiffs-appellants in any event failed to comply with CPLR 205 by failing to file and serve their refiled complaints within six months after dismissal of the prior actions. (Pyne v 20 E. 35 Owners Corp., 267 AD2d 168; Silber v Stein, 287 AD2d 494.)

      Hodgson Russ LLP, Buffalo (Jason E. Markel of counsel), for Jamestown Public Schools, respondent.
    I. Plaintiffs’ actions are barred by the statute of limitations. (Poulos v U-Haul Intl., 303 AD2d 480; Matter of Seekings v Jamestown Pub. School Sys., 224 AD2d 942; Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 271 NY 531; Snyder v Town Insulation, 81 NY2d 429.) II. CPLR 205 (a) does not permit plaintiffs to refile their previously dismissed actions because they were dismissed for neglect to prosecute. (Carven Assoc. v American Home Assur. Corp., 84 NY2d 927; MacIntosh v Bronzo, 302 AD2d 434; Williams v Jian Chu Yu, 207 AD2d 442; Alaimo v Velco Enters., 234 AD2d 325; Ivory v Ekstrom, 98 AD2d 763; Kelly v Rosenthal, 176 AD2d 283, 79 NY2d 751; Scharlack v Richmond Mem. Hosp., 144 AD2d 354; O’Connell v Pizza Time of N.Y., 176 AD2d 1233, 79 NY2d 752; Flans v Federal Ins. Co., 43 NY2d 881; Keel v Parke, Davis & Co., 72 AD2d 546, 50 NY2d 833.) III. CPLR 205 (a) does not permit plaintiffs to refile their previously dismissed actions because plaintiffs’ actions are barred by res judicata which constituted dismissals on the merits. (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375; Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737; Jones v Maphey, 50 NY2d 971; Cummings v St. Joseph’s Hosp. Health Ctr., 130 AD2d 957; Colon v New York City Health & Hosps. Corp., 166 AD2d 291; Barber v Pfeiffer, 261 AD2d 495; Corsini v U-Haul Intl., 234 AD2d 107, 90 NY2d 978; Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737; Barrett v Kasco Constr. Co., 56 NY2d 830; Kalkan v Nyack Hosp., 227 AD3d 382, 88 NY2d 814.) IV Plaintiffs failed to meet their burden to establish compliance with CPLR 205 (a). (Massie v Crawford, 78 NY2d 516; Matter of Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997; Siler v Lutheran Social Servs. of Metro. N.Y., 10 AD3d 646; Park Assoc. v Crescent Park Assoc., 159 AD2d 460; Sweet v Austin, 226 AD2d 942, 88 NY2d 811; Steo v Cucuzza, 213 AD2d 624; Duran v Mendez, 277 AD2d 348; Savarese v Shatz, 273 AD2d 219; Merriman v Sherwood, 204 AD2d 998; Doyon v Bascom, 38 AD2d 645.) V Special Term abused its discretion in sua sponte permitting plaintiffs an opportunity to make prima facie submissions in an effort to comply with the disclosure orders in the prior Andrea actions. VI. Plaintiffs failed to establish a prima facie case in admissible form. (Walker v Town of Lockport, 109 AD2d 1102, 65 NY2d 840; Jones v First Fed. Sav. & Loan Assn. of Rochester, 101 AD2d 1005; Matter of Levenson, 289 AD2d 577; Yepez v Damico, 239 AD2d 412; Perez v New York City Hous. Auth., 182 AD2d 416; Stokes v McKeithan, 172 AD2d 1077; Matter of Kharrubi v

      Board of Educ. of City of N.Y., 133 AD2d 457; Charlotte Lake Riv. Assoc. v American Ins. Co., 130 AD2d 947, 70 NY2d 605; Oversby v Linde Div. of Union Carbide Corp., 121 AD2d 373; Nitto v Kalisiak, 107 AD2d 1066.)
   OPINION OF THE COURT

R.S. Smith, J.

We hold that dismissal of an action for failure to comply with discovery orders is a dismissal “for neglect to prosecute the action” within the meaning of CPLR 205 (a). Therefore, these actions, filed after the dismissal of previous actions by the same plaintiffs, are not saved by CPLR 205 (a) from the bar of the statute of limitations.

Facts and Procedural History

The Jefferson Middle School in Jamestown was renovated in 1992. In 1994 and 1995, more than 60 plaintiffs brought four lawsuits against more than 20 defendants, alleging that employees and students at the school had been injured by toxic substances released in the course of the renovation.

The first of several scheduling orders in these cases was entered in July 1995. By 1996, plaintiffs were in default in responding to several of defendants’ discovery demands. Supreme Court then imposed more deadlines for discovery, but the deadlines were not met, and defendants moved to dismiss. In a December 1998 opinion, Supreme Court wrote that “plaintiffs’ counsel have demonstrated such a disregard for the case management order and scheduling order that one would not believe such orders existed,” but nevertheless denied the motion, reluctant to penalize “innocent plaintiffs who may have [a] meritorious case” for their counsel’s conduct. Instead, Supreme Court ordered a hearing on monetary sanctions and imposed a new set of deadlines which, though extended, were again not met. Defendants again moved to dismiss.

In a July 1999 opinion, Supreme Court found “that the actions of plaintiffs’ counsel have been frivolous ... in that they have been undertaken primarily to delay or prolong resolution of this litigation.” Supreme Court said that “dismissal of the actions would not be unfounded,” but it gave plaintiffs one more chance, permitting them to avoid dismissal if they paid attorneys’ fees to defendants and complied with yet another set of deadlines. The attorneys’ fees were paid but the deadlines were not met, and on May 19, 2000 Supreme Court dismissed the actions. Plaintiffs appealed, and the Appellate Division affirmed the dismissal on June 8, 2001 (Andrea v du Pont De Nemours & Co., 284 AD2d 921 [4th Dept 2001]).

Meanwhile, on December 19, 2000, 34 of the same plaintiffs brought the present two actions, based on the same events as the four earlier ones, against 13 of the same defendants. Two defendants moved to dismiss the new actions on the ground that they were barred by the statute of limitations. Supreme Court denied the motions, relying on CPLR 205 (a), which permits actions brought after dismissal of a prior action to have, under certain circumstances, the benefit of the earlier filing date. Supreme Court rejected the argument that CPLR 205 (a) was inapplicable because the previous actions were dismissed for neglect to prosecute; Supreme Court said that “it was never this Court’s intention to dismiss the prior actions for failure to prosecute.” Later, the remaining defendants moved to dismiss, and Supreme Court denied their motions also.

The Appellate Division reversed in two separate decisions, from the first of which two Justices dissented, and ordered that these actions be dismissed. Plaintiffs appeal to this Court, and we now affirm.

Discussion

These actions, begun some eight years after the events on which they are based, are obviously time-barred unless they are rescued by CPLR 205 (a), which provides:

“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.” (Emphasis added.)

For purposes of this statute, “termination” of the prior action occurs when appeals as of right are exhausted (.Lehman Bros, v Hughes Hubbard & Reed, 92 NY2d 1014, 1016-1017 [1998]). Here, termination occurred on June 8, 2001, when the Appellate Division affirmed the dismissal of the prior actions, and thus if CPLR 205 (a) applies the commencement of these actions in December 2000 was not too late. Because the prior actions were, however, dismissed “for neglect to prosecute,” CPLR 205 (a) is inapplicable.

Our decisions make clear that the “neglect to prosecute” exception in CPLR 205 (a) applies not only where the dismissal of the prior action is for “[w]ant of prosecution” pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal (see Carven Assoc. v American Home Assur. Corp., 84 NY2d 927 [1994]; Laffey v City of New York, 52 NY2d 796 [1980]; Keel v Parke, Davis & Co., 50 NY2d 833 [1980]; Flans v Federal Ins. Co., 43 NY2d 881 [1978]). In Carven, as in this case, the prior action “had been dismissed for [plaintiffs’] willful and repeated refusal to obey court-ordered disclosure” (84 NY2d at 930). We held that dismissal to be within the “neglect to prosecute” exception.

Plaintiffs stress that our memorandum in Carven referred to “the singular circumstances presented by this appeal” (id.). They say that the more relevant precedent is Schuman v Hertz Corp. (17 NY2d 604 [1966]), in which we reversed an Appellate Division decision dismissing a second action as time-barred. We based our decision in Schuman on the ground that “the dismissal of the original suit was not intended by the Justice presiding to be a dismissal for neglect to prosecute” (id. at 605). Plaintiffs claim that here, as in Schuman, the statement by Supreme Court that it did not intend to dismiss the action for neglect to prosecute should be dispositive.

However, Schuman, even more than Carven, turned on its unique facts. The dismissal of the prior action in Schuman came after a complicated, and apparently unrecorded, series of discussions with the justice presiding in a Supreme Court trial part and his law secretary. The trial judge dismissed the case when “plaintiffs’ counsel stated he was not ready to comply with the court’s direction to pick a jury,” but the judge also allegedly said that the dismissal “would not be the end of the lawsuit” because plaintiff could rely on the predecessor statute to CPLR 205 (a). In a situation where the true basis of the dismissal was less than clear, we held it proper to defer to the holding of the Supreme Court Justice “that the original [complaint] had not been dismissed for neglect to prosecute” (17 NY2d at 605-606). But where, as here, the record does make clear the basis for the prior dismissal, the question of whether it was a dismissal for neglect to prosecute is a question of law on which we need not defer to Supreme Court’s judgment.

“Neglect to prosecute” is a correct description of the basis for the dismissal of these plaintiffs’ prior actions. A series of discovery defaults beginning in 1996 and never fully cured finally led a patient Supreme Court Justice, who had done his best to protect plaintiffs from the consequences of their counsel’s inaction, to dismiss the cases in 2000. Supreme Court’s dismissal order refers to plaintiffs’ “failure ... to comply with discovery deadlines,” their “delays,” their “disregard for the case management order and scheduling order,” their lack of diligence, their “inactions” and their “ongoing laxity.”

Where a case is dismissed for reasons like this, it is not acceptable to permit plaintiffs to start all over again, after the statute of limitations has expired. To countenance that result would be to convert the dismissal itself into just one more opportunity to try again—and plaintiffs have already had at least as many opportunities to try again as they could reasonably expect. The plain purpose of excluding actions dismissed for neglect to prosecute from those that can be, in substance, revived by a new filing under CPLR 205 (a) was to assure that a dismissal for neglect to prosecute would be a serious sanction, not just a bump in the road.

Supreme Court was of course correct in thinking it undesirable to punish plaintiffs for the failures of their counsel. But what is undesirable is sometimes also necessary, and it is often necessary, as it is here, to hold parties responsible for their lawyers’ failure to meet deadlines. Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]).

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

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

Order affirmed, with costs.