author: Chief Judge Lippman. Graffeo, J. (dissenting).

text:
    [980 NE2d 940, 957 NYS2d 275]
    J. D’Addario & Company, Inc., Respondent, v Embassy Industries, Inc., Appellant.
    Argued October 11, 2012;
    decided November 19, 2012

      POINTS OF COUNSEL

      Rosenberg Fortuna & Laitman, LLP, Garden City (David I. Rosenberg and Anthony R. Filosa of counsel), for appellant.
    I. The Appellate Division erred in holding that the Supreme Court had discretion to deny Embassy Industries, Inc. prejudgment interest. (Manufacturer’s & Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577; John Hancock Life Ins. Co. of N.Y. v Hirsch, 77 AD3d 710; Baer v Anesthesia Assoc. of Mount Kisco, LLP, 57 AD3d 817; Delulio v 320-57 Corp., 99 AD2d 253; Cantelmo v Knaust, 206 AD2d 743; Deutsche Bank Trust Co., Ams. v Stathakis, 90 AD3d 983; Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256; Solow v Wellner, 86 NY2d 582; Gizzi v Hall, 309 AD2d 1140.) II. The law of contract damages compels that Embassy Industries, Inc. be made whole for the separate and distinct wrong of the deprivation of the use of the down payment from the date of the breach of the contract. (Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577; Lawyers’ Fund for Client Protection of State of N.Y. v Bank Leumi Trust Co. of N.Y., 94 NY2d 398; Preston Co. v Funkhouser, 261 NY 140; NML Capital v Republic of Argentina, 17 NY3d 250; Downtown Harvard Lunch Club v Racso, Inc., 201 Misc 1087; Shubert v Sondheim, 138 App Div 800, 203 NY 636.) III. The order is judicial legislation under the guise of statutory interpretation. (Manufacturer’s & Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583; Weinberg v D-M Rest. Corp., 53 NY2d 499; Pajak v Pajak, 56 NY2d 394; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357; Bradley v Buffalo, N.Y. & Erie R.R. Co., 34 NY 427; Matter of Lloyd v Grella, 83 NY2d 537; Matter of Yong-Myun Rho v Ambach, 74 NY2d 318.)

      Lamb & Barnosky, LLP, Melville (Scott M. Karson and Michael F. Mullen of counsel), for respondent.
    I. The law in New York is clear that when parties set down their agreement in a clear, complete document, that agreement must be enforced according to its terms. (Clement v Cash, 21 NY 253; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; Venetoklis Family L.P. v Kora Devs., LLC, 74 AD3d 1057; Grace v Nappa, 46 NY2d 560; Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Lawrence v Miller, 86 NY 131; Mitchell v New York Hosp., 61 NY2d 208; T. W. Oil v Consolidated Edison Co. of N.Y., 57 NY2d 574; Rector, Church Wardens & Vestrymen of St. Bartholomew’s Church in City of N.Y. v Committee to Preserve St. Bartholomew’s Church, 56 NY2d 71.) II. None of the cases cited by Embassy Industries, Inc. apply here because none involved liquidated damages. (Spodek v Park Prop. Dev. Assoc., 96 NY2d 577; Prager v New Jersey Fid. & Plate Glass Ins. Co. of Newark, N.J., 245 NY 1; Manufacturer’s & Traders Trust Co. v Reliance Ins. Co., 8 NY3d 583; Love v State of New York, 78 NY2d 540; Toledo v Iglesia Ni Christo, 18 NY3d 363; Gizzi v Hall, 309 AD2d 1140; S&S Mgt., LLC v Berk, 65 AD3d 1031.)
   OPINION OF THE COURT

Chief Judge Lippman.

At issue in this appeal is whether the parties’ contract language specifying that the seller’s “sole remedy” was liquidated damages and the seller had “no further rights” against the defaulting purchaser, trumps language in CPLR 5001 (a) directing that statutory interest be awarded in a contract dispute. The terms of the contract are controlling here, and thereunder, we hold that defendant Embassy Industries is not entitled to statutory interest.

By real estate contract dated January 13, 2006, defendant Embassy Industries, Inc. (Embassy) agreed to sell commercial real property located in Farmingdale, New York to plaintiff J. D’Addario & Company (D’Addario) for $6.5 million. D’Addario deposited 10% of the purchase price ($650,000), the down payment under the contract, in escrow with Embassy’s attorney (the Escrow Agent). The contract provided that the down payment would be held at an interest-bearing account at North Fork Bank in Melville, New York. The contract further stated that the Escrow Agent would hold the down payment until the closing or termination of the contract and “pay over the interest or income earned thereon, if any, to the party entitled to the Downpayment.” If the closing did not occur and either party disputed the other’s written demand for the down payment, then the Escrow Agent would “continue to hold the Downpayment until otherwise directed by written instructions from Seller and Purchaser or a final judgment of a court of competent jurisdiction.”

Negotiating at arm’s length and each represented by counsel, the parties agreed in the liquidated damages clause that the seller’s “sole remedy” and the purchaser’s “sole obligation” would be the $650,000 down payment plus bank-accrued interest. The seller would also have “no further rights or causes of action” against the purchaser in the event of a default. The liquidated damages clause provided that

“[i]f Purchaser defaults, the entire damages which Seller will thereby sustain cannot be exactly determined; therefore, it is agreed that in the event of any default by Purchaser, all amounts paid by Purchaser as a deposit . . . shall be considered as liquidated damages . . . and be permanently retained by Seller as Seller’s sole remedy and Purchaser’s sole obligation in any and all events. . . . Seller shall retain such amounts as liquidated damages and no further rights or causes of action shall remain against Purchaser, nor shall Purchaser have any further rights under this Contract or otherwise, with respect to Seller . . . .”

Subsequent to the signing of the contract, Embassy scheduled a time-of-the-essence closing for July 31, 2006. On July 21, 2006, D’Addario purported to terminate the contract and did not attend the convened closing on July 31. D’Addario believed it had timely and effectively terminated the contract by reason of Embassy’s inability to certify that groundwater contamination at the site had been addressed to the satisfaction of regulatory authorities. Embassy declared D’Addario to be in default by reason of its failure to appear at the closing and retained D’Addario’s $650,000 down payment as liquidated damages pursuant to the contract.

D’Addario commenced the underlying action to recover its down payment, and Embassy counterclaimed, alleging that D’Addario defaulted by failing to appear at the closing. After a non-jury trial, Supreme Court rendered a judgment which awarded Embassy the $650,000 down payment plus 9% statutory interest and costs, for a total of $877,406.

The Appellate Division modified to vacate the award of statutory interest, holding that “Supreme Court improvidently exercised its discretion in awarding statutory prejudgment interest” (J. D’Addario & Co., Inc. v Embassy Indus., Inc., 83 AD3d 1001, 1003 [2d Dept 2011]). Supreme Court then issued an amended judgment directing the Escrow Agent to turn over the down payment and bank-account interest accrued to Embassy.

We granted Embassy leave to appeal (18 NY3d 802 [2011]). The only issue raised is Embassy’s entitlement to statutory prejudgment interest, and we now affirm, although on different grounds from those stated by the Appellate Division.

In breach of contract cases where parties do not specify the exclusive remedy, CPLR 5001 (a) requires that statutory interest be paid. CPLR 5001 (a) states that “[i]nterest shall be recovered upon a sum awarded because of a breach of performance of a contract” (emphasis added). The plain language of CPLR 5001 (a) “mandates the award of interest to verdict in breach of contract actions” (Spodek v Park Prop. Dev. Assoc., 96 NY2d 577, 581 [2001]). There is no requirement that the breaching party obtain some benefit from the wronged party’s money for statutory interest to be paid. The principle behind prejudgment interest is that the breaching party should compensate the wronged party for the loss of use of the money (see NML Capital v Republic of Argentina, 17 NY3d 250, 266 [2011]). We have previously stated that “interest is not a penalty” (Love v State of New York, 78 NY2d 540, 544 [1991]), and the purpose of ordering statutory interest on amounts in escrow is not to punish the breaching party. The breaching party is required to pay interest despite lacking possession or enjoyment of the property in order “to make [the] aggrieved party whole” (Spodek v Park Prop. Dev. Assoc., 96 NY2d at 581).

This long-recognized principle is not in conflict with our holding in Manufacturer’s & Traders Trust Co. v Reliance Ins. Co. (8 NY3d 583 [2007]), an equitable interpleader action where we ruled that the trial court did not have discretion to award statutory interest. In Manufacturer’s, we held that in an interpleader action where the losing co-claimants were not guilty of any breach, no sum is “awarded” under CPLR 5001 (a) against those who lose (see id. at 589). No judgment was entered against the losing claimants in Manufacturer’s, whereas in a breach of contract case, interest must be paid by the party against whom judgment is entered. We recognized a “fundamental objection” to awarding statutory interest in Manufacturer’s because the losing claimants were “not . . . found to have breached any contract,” not because the co-claimants received no benefit from the disputed funds while it was held in escrow (see id.).

In this case, however, Embassy and D’Addario agreed at the time of contract formation that the “sole remedy” for Embassy and the “sole obligation” of D’Addario in the event of a purchaser default would be an award of the down payment. Moreover, the parties agreed that the seller would have “no further rights” against the purchaser once the down payment was paid as liquidated damages. The contract required that the down payment be placed in an interest-bearing account, so that the party entitled to the down payment would receive compensation for the deprivation of its use of the money in the form of bank-accrued interest. Embassy’s contention that the contract never expressly mentioned statutory interest, and that therefore their right thereto was not waived, is unpersuasive. The use of the terms “sole remedy,” “sole obligation,” and “no further rights” by the parties, together with the provision for interest on the escrowed sum, was sufficiently clear to establish for purposes of this transaction that interest paid at the statutory rate was not contemplated by the parties at the time the contract was formed. We held in W.W.W. Assoc. v Giancontieri (77 NY2d 157, 162 [1990]) that “when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms.” Regardless of what CPLR 5001 (a) customarily requires in terms of statutory interest for breach of contract cases, the parties here decided that the amount escrowed should be the exclusive remedy to the wronged party. As we stated in Town of Orangetown v Magee (88 NY2d 41, 54 [1996]), “parties to a civil dispute are free to chart their own course and, unless public policy is affronted, they may fashion . . . how damages are to be computed without interference by the courts.” In many cases, we have allowed parties to agree to give up statutory or constitutional rights in a contract, as long as public policy is not violated. Therefore, the exclusive remedy that the parties fashioned here should be honored.

In Manufacturer’s, we chastised the parties for the “inexplicable failure by all concerned to arrange for the payment of a meaningful interest rate on the escrowed money” (8 NY3d at 590). Here, the parties placed the down payment in an interest-bearing account as the contract required. It may be worth repeating, however, that parties should make it a matter of routine to decide in advance whether statutory interest is to be paid on amounts held in escrow. A contract clause providing that no statutory interest would accrue during an escrow dispute would have prevented this litigation altogether. But the language that was used, that the down payment on the property was to be the “sole remedy” for a breach by the purchaser and that the seller had “no further rights” against purchaser, is sufficiently clear in the end to reach the same result. The contract language will always control, as it should in this case.

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

Graffeo, J. (dissenting).

I respectfully dissent because I disagree that the liquidated damages provision in the parties’ contract vitiates the prejudgment interest provided in CPLR 5001 (a).

In a breach of contract action, an award of prejudgment interest is required under CPLR 5001 (a) (“[i]nterest shall be recovered upon a sum awarded because of a breach of performance of a contract”) and the accrual of interest is mandatory (see Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531, 536 [1992] [legislature’s use of the term “shall” implies “duty, not discretion”]; see also Gizzi v Hall, 309 AD2d 1140, 1142 [3d Dept 2003]). As the majority correctly recognizes, “interest is not a punishment arbitrarily levied upon a culpable party” but compensation intended to make whole the party aggrieved (Mohassel v Fenwick, 5 NY3d 44, 51 [2005]; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577, 581 [2001]).

It is common for parties contracting for the sale of real property to agree to limit a seller’s damages to the amount of the buyer’s down payment (see e.g. Beagle Devs., LLC v Long Is. Beagle Club No. II, Inc., 63 AD3d 607, 608 [1st Dept 2009]; Hegner v Reed, 2 AD3d 683, 684-685 [2d Dept 2003]). The primary objective of this practice is to eliminate the purchaser’s exposure to more costly potential damages (see Federal Realty Ltd. Partnership v Choices Women’s Med. Ctr., 289 AD2d 439, 441 [2d Dept 2001]). Liquidated damages clauses therefore are designed to foreclose causes of action seeking damages for expectation (“benefit of bargain” or lost profits) and reliance (“expenditures made in preparation for performance or in performance”) that would otherwise be available to a seller or vendor (see St. Lawrence Factory Stores v Ogdensburg Bridge & Port Auth., 13 NY3d 204, 208 [2009]). Before today, such contractual provisions were not interpreted to bar recovery of statutorily-mandated interest. Indeed, courts awarded prejudgment interest in similar cases in the past (see Gargano v Rubin, 200 AD2d 554, 556 [2d Dept 1994]; Shubert v Sondheim, 138 App Div 800, 806 [1st Dept 1910]; Downtown Harvard Lunch Club v Racso, Inc., 201 Misc 1087, 1092 [Sup Ct, NY County 1951]; Norris v McMechen, 135 Misc 361, 363 [Sup Ct, Warren County 1930]). Prejudgment interest should not be viewed as an addition to stipulated damages as the majority seems to imply, but rather, should be viewed as representing compensation “for the different and distinct wrong of not paying the agreed sum when it was due” (Downtown Harvard Lunch Club, 201 Misc at 1092). Thus, in the absence of specific terms in the contract excluding prejudgment interest, I would not infer limitations on statutory interest in generic liquidated damages provisions.

Here, the parties’ agreement stated that in the event of D’Addario’s default, Embassy would be entitled to retain all amounts paid by D’Addario as a deposit. Yet, the stipulation did not mention statutory interest, much less exclude it. Nor does it follow that the parties intended to exempt interest simply because they used the words “sole remedy” and “sole obligation” in the contract. Such language is frequently used in contractual damages clauses to restrict a party’s potential remedies and has no bearing on the availability of statutory interest. Similarly, contrary to the majority’s assertion, the phrase “no further rights or causes of action” plainly refers to the foreclosure of claims for other categories of damages, not prejudgment interest. In short, nothing in this boilerplate language suggests that the parties contemplated that interest would not accrue if D’Addario chose to contest Embassy’s claim to the down payment.

The entitlement to interest under CPLR 5001 (a) should also not depend on whether the down payment was placed in an escrow account managed by Embassy’s counsel during the four-year pendency of this litigation. Under the terms of the parties’ agreement, the attorney could not transfer the down payment to Embassy unless both Embassy and D’Addario agreed to release the funds. By refusing Embassy’s demand for disbursement, D’Addario effectively restrained Embassy’s use of the money for the remaining duration of the action. That refusal constituted a distinct and separate wrong not covered by the liquidated damages provision and prejudgment interest should have been awarded.

Accordingly, I would modify the Appellate Division order by reversing so much of it as vacated the Supreme Court’s judgment granting Embassy statutory interest, order that portion of the judgment reinstated and otherwise affirm.

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

Order affirmed, with costs.

       The contract provided as follows:
      "If {D'Addario] defaults, the entire damages which [Embassy] will thereby sustain cannot be exactly determined; therefore, it is agreed that in the event of any default by [D'Addario], all amounts paid by [D’Addario] as a deposit pursuant to this Contract shall be considered as liquidated damages for such failure or refusal of [D’Addario] to consummate this transaction or for any non-compliance, non-performance, breach or default by [D’Addario], and shall become the exclusive property of, and be permanently retained by [Embassy] as [Embassy’s] sole remedy and [D’Addario’s] sole obligation in any and all events. . . . [Embassy] shall retain such amounts as liquidated damages and no further rights or causes of action shall remain against [D’Addario] . . . .”


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [980 NE2d 937, 957 NYS2d 272]
    The People of the State of New York, Respondent, v Samuel Walker, Appellant.
    Argued October 16, 2012;
    decided November 19, 2012

      POINTS OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve, David C. Schopp and Barbara J. Davies of counsel), for appellant.
    The weapon and statements were obtained in violation of appellant’s federal and state constitutional rights to be free from unreasonable searches and seizures and should have been suppressed. (Arizona v Gant, 556 US 332; South Dakota v Opperman, 428 US 364; Colorado v Bertine, 479 US 367; Illinois v Lafayette, 462 US 640; Florida v Wells, 495 US 1; People v Galak, 80 NY2d 715; People v Wilburn, 50 AD3d 1617; People v Schwing, 13 AD3d 725; People v Iverson, 22 Misc 3d 470; United States v Caseres, 533 F3d 1064.)

      Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small and Donna A. Milling of counsel), for respondent.
    Defendant’s federal and state rights to be free from unreasonable searches and seizures were not violated. (Miranda v Arizona, 384 US 436; People v Evans, 65 NY2d 629; People v Gomcin, 8 NY3d 899; Cady v Dombrowski, 413 US 433; South Dakota v Opperman, 428 US 364; United States v Caseres, 533 F3d 1064; Colorado v Bertine, 479 US 367; United States v Ramos-Morales, 981 F2d 625, 508 US 926; United States v Coccia, 446 F3d 233, 549 US 1149; United States v Jensen, 425 F3d 698.)
   OPINION OF THE COURT

Smith, J.

Having decided to arrest defendant for driving with a revoked license, a police officer also decided to impound the car he was driving. The officer did not inquire whether defendant’s passenger, who was not the registered owner of the car, was licensed and authorized to drive it. We hold that such an inquiry was not constitutionally required. We also hold that the officer’s search of the car after he decided to impound it was a valid inventory search.

I

Defendant was indicted for criminal possession of a weapon in the second degree. At a suppression hearing, a state trooper testified that he stopped the car defendant was driving because the woman in the passenger seat (later identified as defendant’s girlfriend) was not wearing a seatbelt. The trooper asked for defendant’s license and registration; defendant provided the registration and an identification card, but not a license, and a computer check showed that defendant’s driver’s license had been revoked. The name on the registration was not that of either defendant or his passenger; according to evidence at the suppression hearing, the registered owner was defendant’s sister.

The trooper decided to arrest defendant and to impound the car. Before the car was towed away, the trooper conducted what he described as an inventory search—a search in which “we go through the vehicle for any valuables and we have to write them down on a certain form.” In the course of the search, he discovered a handgun on the floorboard.

The trooper testified that the search was done pursuant to a written policy of the New York State Police; he described the policy in general terms, but no copy was offered in evidence. The People did offer a completed “VEHICLE INVENTORY” form that the trooper had filled out, showing that, in addition to the handgun, he had recovered “MISC ITEMS” from the trunk and “PAPERWORK” from the glovebox, and that the contents of the trunk and glovebox had been returned.

Defendant’s motion to suppress the gun was denied. Defendant then pleaded guilty, without waiving his right to appeal. The Appellate Division affirmed (People v Walker, 88 AD3d 1287 [4th Dept 2011]). A Judge of this Court granted leave to appeal (18 NY3d 887 [2012]), and we now affirm.

II

Defendant argues that the state trooper acted unreasonably when he decided to impound and search the car without inquiring whether defendant’s girlfriend was licensed and authorized to drive it. We hold that no such inquiry was necessary.

When the driver of a vehicle is arrested, the police may impound the car, and conduct an inventory search, where they act pursuant to “reasonable police regulations relating to inventory procedures administered in good faith” (Colorado v Bertine, 479 US 367, 374 [1987]). Here, the trooper testified that it is state police procedure to “tow the vehicle” if the operator’s license “is either suspended or revoked” and the registered owner is not present. We hold this to be a reasonable procedure, at least as applied to this case, where no facts were brought to the trooper’s attention to show that impounding would be unnecessary.

Neither defendant nor his girlfriend asked the trooper if the girlfriend could drive the car, or told him that she had a driver’s license and the owner’s permission to drive it. The trooper was not required, as a matter of constitutional law, to raise the question, or to initiate a phone call to the owner. To impose such a requirement on police in such situations would not only create an administrative burden, but would involve them in making (and the courts in reviewing) difficult decisions in borderline cases. If a person present claims to have the owner’s permission to drive, must the police take her word for it? If the owner is called and does not answer immediately, must police wait for a call back? It is reasonable for the police to institute clear and easy-to-follow procedures that avoid such questions.

The issue in this case is a variant of the many that can arise when police arrest the driver of a vehicle, and must decide whether to impound and search the vehicle, or to permit other arrangements. While our Court has apparently never considered a question factually close to this one, somewhat similar facts have produced a number of rulings from a number of courts, not all of them consistent. The leading treatise on the law of searches and seizures summarizes the cases in this way:

“There is a considerable body of authority that when the arrestee specifically requests that his car be lawfully parked in the vicinity of the arrest or that it be turned over to a friend, the police must honor this request. Several other cases hold or suggest that the police must take the initiative with respect to other apparent alternatives, such as permitting a licensed passenger to take custody of the car or lawfully parking the car at the scene, or at least that they must determine from the arrestee what disposition he wishes when he is competent to decide the matter. On the other hand, there are decisions which specifically reject such notions; it is said that officers are not required to take time out from their immediate purpose to allow their suspect to put his affairs in order and that an arresting officer has no mandatory legal duty to advise an arrestee of any administrative regulation authorizing the release of his automobile to a third party” (3 Wayne R. LaFave, Search and Seizure § 7.3 [c] at 618-621 [4th ed 2004] [footnotes and internal quotation marks omitted]).

We make no attempt to answer all the questions that may be raised in such cases. We hold only that the seizure of the car in this case was not unreasonable.

Ill

We have held that, even where a vehicle has been lawfully impounded, the inventory search itself must be conducted pursuant to “an established procedure” that is related “to the governmental interests it is intended to promote” and that provides “appropriate safeguards against police abuse” (People v Galak, 80 NY2d 715, 716 [1993]; see also People v Johnson, 1 NY3d 252 [2003]; People v Gomez, 13 NY3d 6 [2009]). Defendant argues that the inventory search in this case failed to meet this requirement. We reject the argument.

Defendant’s argument focuses on several alleged deficiencies in the proof relating to the inventory search: the written policy that governed the search was never produced; the state trooper’s description of the policy was very vague; and the descriptions of the returned property on the inventory form—“MISC ITEMS” and “PAPERWORK”—would be of limited usefulness in the event the car’s owner claimed that some of her property was missing. These criticisms are not without force. Certainly, it would be better for a prosecutor seeking to prove the existence of a written policy to put a copy of the policy into evidence. On the other hand, defense counsel could have demanded that the policy be produced to help her cross-examine the trooper. She did not do so.

When a car has been lawfully impounded, the reasonable expectation of the person who was driving it that its contents will remain private is significantly diminished. In such a case, the driver presumably expects the police to find whatever is in the car. Galak, Johnson and Gomez establish that this does not give the police carte blanche to conduct any search they want and call it an “inventory search.” The police must follow a reasonable procedure, and must prepare a “meaningful inventory list” (Johnson, 1 NY3d at 256). But it would serve little purpose for courts to micromanage the procedures used to search properly impounded cars. The United States Supreme Court implicitly recognized as much in Bertine by upholding as constitutionally valid a search producing what a trial court had found to be a “somewhat slipshod” inventory (479 US at 369; see id. at 383 [Marshall, J., dissenting] [describing the inventory’s deficiencies]). The inventory here, while not a model, was sufficient to meet the constitutional minimum.

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

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Pigott concur.

Order affirmed.


author: Chief Judge Lippman. Smith, J. (dissenting).

text:
    [982 NE2d 570, 958 NYS2d 650]
    The People of the State of New York, Respondent, v Dale Bradley, Appellant.
    Argued October 17, 2012;
    decided November 20, 2012

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel), for appellant.
    I. Evidence that Dale Bradley stabbed an unknown man under unknown circumstances at an unknown time was irrelevant to whether Dale Bradley stabbed Joseph Wilburn in self-defense and, given that the potential for unfair prejudice resulting from the admission of the evidence significantly outweighed any probative value, it was an abuse of the trial court’s discretion to determine that the evidence was admissible at trial. (People v Molineux, 168 NY 264; People v Williams, 56 NY2d 236; People v Gillyard, 13 NY3d 351; Coleman v People, 55 NY 81; People v Rojas, 97 NY2d 32; People v Alvino, 71 NY2d 233; People v Hudy, 73 NY2d 40; People v Concepcion, 17 NY3d 192; People v Wesley, 76 NY2d 555; People v Cass, 18 NY3d 553.) II. The trial court committed reversible error when it refused to instruct the jury that it could consider evidence of post-traumatic stress disorder that was introduced by both the prosecution and the defense without objection because defense counsel’s notice of intent to present psychiatric evidence only mentioned battered woman syndrome. (People v Concepcion, 17 NY3d 192; People v Diaz, 15 NY3d 40; People v Berk, 88 NY2d 257; People v Petty, 7 NY3d 277; People v Davis, 58 NY2d 1102; People v Young, 65 NY2d 103; People v Goetz, 68 NY2d 96; People v Wesley, 76 NY2d 555.)

      Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent.
    I. The Fourth Department’s affirmance should stand because the contested Molineux ruling was proper as the prior stabbing was interjected into the case by defendant and thus was properly employed during the People’s direct case as it was relevant and probative to the issues under the jury’s consideration. (People v Ventimiglia, 52 NY2d 350; People v Beam, 57 NY2d 241; People v Allweiss, 48 NY2d 40; People v Calvano, 30 NY2d 199; People v Alvino, 71 NY2d 233; People v McManus, 67 NY2d 541; People v Vails, 43 NY2d 364; People v Rojas, 97 NY2d 32; People v Cass, 18 NY3d 553.) II. Defendant was precluded from obtaining a justification charge referencing post-traumatic stress disorder due to her noncompliance with the CPL, and defendant’s self-defense claim was not unduly compromised as correctly found by the Fourth Department. (People v Diaz, 15 NY3d 40; People v Hill, 4 NY3d 876; People v Almonor, 93 NY2d 571; People v Berk, 88 NY2d 257; People v Segal, 54 NY2d 58; People v Umali, 37 AD3d 164, 10 NY3d 417; People v Petty, 7 NY3d 277; People v Jones, 3 NY3d 491; People v Bolling, 7 NY3d 874.)
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant stands convicted of manslaughter in the first degree. In a statement given shortly after the homicide, and at trial, defendant admitted fatally stabbing her estranged boyfriend, Joseph Wilburn, but claimed that she had done so while attempting to defend herself. Mr. Wilburn, she said, appeared at her home early on the morning of February 2, 2007. Although she had an order of protection against him, she allowed him in and an argument ensued. She asked him to leave but he refused, and when she tried to call the police, he choked her and then came at her with a snow shovel, threatening to “bust [her] head open.” According to defendant, as Wilburn swung the shovel at her, she grabbed a knife and, with her eyes closed, lunged at him, hitting him once in the chest. After attempting without success to stanch the bleeding from Wilburn’s wound, defendant called 911 for emergency assistance and then panicked and ran from her house. She was eventually approached on the street near her house by one of the police officers responding to the homicide scene. He testified that when she was pointed out to him by a concerned pedestrian she was shivering, disheveled and apparently disoriented. Marks observed on defendant’s neck soon after she was taken by the police to the Monroe County Public Safety Building for questioning seemed to confirm that she had been recently choked, and a snow shovel with a plastic blade was found at the homicide scene near the victim’s left hand.

The trial evidence showed, and there is no dispute, that the 45-year-old defendant had been a frequent victim of sexual and other physical abuse since her early childhood. In connection, then, with her claim that she had swung the knife at Wilburn in self-defense, she urged, and presented expert testimony to show, that her perception of and response to Wilburn on the occasion of their final altercation was significantly and reasonably influenced by post-traumatic stress disorder (PTSD) and, somewhat more specifically, battered woman syndrome (BWS).

To rebut defendant’s claim of justification and her related contention that her understanding of and reaction to the situation resulting in the homicide had been eventuated by the psychiatric sequelae of her victimization, the prosecution presented its own psychiatric expert and, in a pretrial Molineux application, sought as well to introduce evidence of six uncharged incidents in which defendant reportedly resorted or threatened to resort to violence against men. Evidence as to two of these incidents was allowed in the People’s direct case over defendant’s opposition: the People were permitted to elicit testimony from the victim’s brother, Quinton, that the day before the homicide he heard defendant call out that she would stab Joseph if he did not close the door to her house, which he had left open while he and his brother conversed; and the People were permitted to elicit from a social worker testimony that defendant, during a therapy session with her some 10 years before the Wilburn homicide, confessed that she had at some unspecified, necessarily more remote time stabbed an unidentified man in the thigh.

At trial, the social worker, who had no independent recollection of her professional interaction with defendant, testified from her notes that defendant had reported that “she stabbed a gentleman who had been [harassing] her, in the thigh,” and that she had in the course of her treatment stated that she was “very angry toward men” for all the abuse she had suffered.

In summation, the prosecutor argued that the fatal Wilburn stabbing had, like the stabbings by defendant predating it, been motivated by anger and not by a reasonably perceived need to resort to deadly force for self-protection. The court charged the jury that in assessing whether defendant reasonably believed that the use of deadly force was necessary to protect herself, it could take into account the evidence that defendant suffered from BWS.

Defendant’s principal appellate contention has been that the social worker’s testimony as to defendant’s disclosure of the thigh stabbing should not have been received. That evidence, defendant has maintained, was not reliably probative of her state of mind on the occasion of the Wilburn stabbing more than a decade later, and introduced an unacceptable risk that defendant would be convicted on the basis of a perceived propensity on her part to knife merely bothersome men.

The Appellate Division addressed the Molineux issue only to the extent of rejecting defendant’s argument that the trial court did not engage in the required exercise of discretion (see People v Alvino, 71 NY2d 233, 242 [1987]) to weigh the probative worth of the prior bad act evidence against its potential for undue prejudice; it found that, although not memorialized on the record, the proper exercise of discretion was implicit (83 AD3d 1444, 1445 [4th Dept 2011]). The Court did not address whether there was, in the first instance, a proper theory of relevance to support the introduction of the testimony respecting the thigh stabbing; it said, evidently inaccurately, that defendant had not argued the point.

A Judge of this Court granted defendant permission to appeal (18 NY3d 857 [2011]) and we now reverse and direct a new trial.

We have for some time recognized the broad principle that when there is an issue raised as to whether a defendant acted culpably it may be appropriate to permit the prosecution to respond by adducing evidence of uncharged conduct tending to show that the defendant possessed the mens rea necessary to guilt. In People v Santarelli (49 NY2d 241 [1980]), for example, we held that “evidence of uncharged criminal or immoral conduct may be admitted as part of the People’s case on rebuttal if it has a tendency to disprove the defendant’s claim that he was legally insane at the time of the crime” (id. at 248) and, recently, in People v Cass (18 NY3d 553 [2012]), we held proof of an uncharged prior homicide admissible to rebut a claim of extreme emotional disturbance. But, the receipt of evidence of uncharged bad acts, even when offered to prove a subjective element, is not exempt from the general prohibition against evidence actually probative only of criminal propensity. To be admissible, such evidence must be demonstrably relevant to the specific state of mind issue in the case and it must be found, on balance, more probative than prejudicial (see Santarelli, 49 NY2d at 249-250).

Applying these principles in Santarelli, we reversed a conviction resting upon evidence of prior uncharged behavior adduced to show that the defendant was not, as he claimed, temporarily insane at the time of the charged homicide, but merely given to explosive outbursts. We reasoned that the prior episodes upon which the People relied were presented without context and so could not be reliably characterized as probative precedent behavior (id. at 250-251). By contrast, in Cass, we held that detailed evidence of a prior homicide by the defendant had been shown relevant to rebut a claim of extreme emotional disturbance made with respect to the charged subsequent, very similarly targeted and committed homicide (Cass, 18 NY3d at 563); taken together, the two relatively closely spaced homicides tended to show premeditation incompatible with the defendant’s mitigating claim of extreme emotional disturbance (id.). In so holding, however, we reiterated that “evidence of bad acts must have some logical relationship’ to, and a ‘direct bearing upon,’ the People’s effort to disprove [a state of mind defense],” and that an assertion of a state of mind defense “opens the door to bad acts evidence ‘only to the extent that such evidence has a natural tendency to disprove [a defendant’s] specific claim’ ” (id. at 562-563, quoting Santarelli, 49 NY2d at 249, 252). We also stressed, yet again, the obligation of trial courts to “take special care to ensure not only that the evidence bears some articulable relation to the issue, but also that its probative value in fact warrants its admission despite the potential for prejudice” (id. at 563, quoting Santarelli, 49 NY2d at 250 [internal quotation marks omitted]).

As the present case proceeded to trial it was clear that the undisputed facts raised an issue as to whether defendant had been justified in her resort to deadly force. There was, after all, objective evidence to support defendant’s claim that she had been choked by Wilburn and that Wilburn, the subject of an outstanding order of protection, then came after her with a shovel. There would, it appeared, also be evidence of defendant’s personal histoiy and knowledge of Wilburn relevant to the reasonableness of her claimed perception of imperilment (see People v Wesley, 76 NY2d 555, 559-560 [1990]). To meet their burden to disprove the defense of justification (Penal Law §§ 35.15, 25.00 [1]), the People would have to demonstrate that defendant did not actually believe that she was in mortal danger, or failing that, that her belief was not reasonable (Wesley, 76 NY2d at 559). While we do not think the trial court erred in permitting the People in the Molineux context to introduce on their direct case some evidence anticipatory of the elaborate justification claim defendant would imminently advance, any such evidence had to possess “a natural tendency to disprove [defendant’s] specific claim” as to her state of mind (Santarelli, 49 NY2d at 249). The proffered evidence of the thigh stabbing did not, in our view, have such probative value.

Defendant’s specific relevant claim was that at the time she swung her knife at Wilburn she reasonably believed that he was about to seriously harm her. That claim, premised in essential part on the particular objective circumstances attending the altercation and defendant’s knowledge of Wilburn, was not in any direct or logical way disproved by proof of the bare circumstance that defendant at some remote, indeterminate time had stabbed an unidentified man in the thigh. While that stabbing assertedly was in response to harassment, the nature of the harassment was left entirely to the imagination. It is possible that the harassment was relatively minor, but it is at least equally possible that it was not. If defendant during the earlier incident used her knife to ward off a sexual or other serious assault, it would not logically show that her subsequent conduct was, as the prosecution contended, simply an expression of unbridled rage.

Given her history, defendant might very well have been angry at men, but anger and fear for one’s personal safety are not mutually exclusive, and defendant’s mere harboring of anger did not with any degree of reliability exclude the entirely plausible hypothesis that her use of force, in either the prior uncharged or the subsequent charged stabbing, had been justified. The absence of any context to shed light on the actual motivation for the thigh stabbing left the jury to speculate both as to the nature of defendant’s conduct on the occasion of that earlier stabbing and as to its possible relevance to the characterization of her conduct more than 10 years later when she plunged her knife into Wilburn’s chest. Without some better developed theory of relevance the two incidents were resonant solely for what they seemed to disclose about defendant’s violent propensity and the manner of its expression; the testimony as to the thigh stabbing did not in any reasonably disciplined way tend to disprove defendant’s claim that she had used the knife against Wilburn to defend herself from what she reasonably believed would be grievous personal harm.

Although the trial court did instruct the jury that the evidence of the earlier stabbing was not to be considered as evidence of criminal propensity, but only as it bore upon “the reasonableness of the defendant’s conduct with respect to the defense of justification and the defense claim that she suffers from battered wife [sic] syndrome,” given the ill-defined, indeed, on this record, purely speculative relevant relation between the two stabbings, this instruction would not, as a practical matter, have avoided the forbidden inference of propensity naturally set in motion by the incidents’ superficial similarity.

We do not minimize the strength of the prosecution’s case. The jury could quite reasonably have concluded that defendant was not particularly fearful of Wilburn, whom she had admitted to her home despite the order of protection barring him from being there, and that her evidently forceful knife thrust to the middle of Wilburn’s chest was not justified by Wilburn’s attack with a plastic-bladed snow shovel. There was, in addition, significant evidence, not now challenged, suggesting that defendant’s use of knives against Wilburn was not confined to situations in which she was immediately imperiled, and that her relationship with Wilburn was mutually abusive. Nonetheless, given the extensive evidence of Wilburn’s abusive behavior, defendant’s lifelong history of victimization and PTSD diagnosis, and the objective corroboration of those portions of defendant’s narrative in which she stated that just prior to the fatal stabbing Wilburn choked her and then attacked her with a snow shovel, we do not think it possible to conclude that there would have been no significant probability of a different verdict if the disputed Molineux evidence had not been received. The jury’s understanding of this case could well have turned even on a small element of the People’s proof, and defendant’s admission to the prior stabbing, particularly as recounted by her former therapist in tandem with her non-contemporaneous but, as elicited, apparently motivationally relevant statements respecting her general, free floating anger towards men, were potentially extremely prejudicial.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Smith, J. (dissenting).

I dissent because it seems only fair to me that, in a case where defendant essentially presented her autobiography as her defense, the People should be allowed to introduce a bit of her history that casts her in a less favorable light.

Defendant told the jury a truly horrifying story of the treatment she received in the home of an aunt who had raised her until she was almost 12 years old. She said: “I was treated horribly. I was sexually abused. I was beaten with extension cords. I was put in hot . . . tubs of water ... at six.” She added that her male cousins sodomized and raped her and her sister, as well as “bullying us and beating us up.” Her uncle, she said, also sexually abused her. Asked when the sexual abuse started, she replied: “I was around the age of two or three.” The description of defendant’s childhood continues in painful detail for several pages of transcript.

The People, as the majority points out, did not dispute this testimony; it is not obvious how they could have obtained evidence disproving it, even if it was not true. Nor did the People challenge its relevance, and I agree that it was relevant to the issue before the jury—which was whether defendant was justified in killing a man when she was 45 years old. Defendant was entitled to argue to the jury that the child abuse, though it preceded the killing by decades, caused her to perceive as life-threatening the physical abuse that she suffered at the hands of the man she killed. His violent acts toward her, bad as they were, might not seem to many so extreme as to justify a homicide; the plastic shovel he attacked her with weighed 2.6 pounds. (Though that is only a little lighter than Babe Ruth’s baseball bat [see majority op at 136 n 3], a jury could find that it was less compact and much less likely to cause fatal injury.) The story of defendant’s early life was admissible to show that she could reasonably be more fearful than most.

But I do not see why, in fairness, the People—who obviously had much less access than defendant herself to the details of her life’s story—could not introduce in rebuttal a few details that they were able to glean, to support an inference that her dreadful experiences had instilled in her more rage than fear. That she had once told a therapist that she had stabbed a man who was “harassing” her in the thigh, and that she was “very angry toward men” was surely admissible for this purpose. It is true, as the majority says, that this evidence does not compel the inference that the People ask the jury to draw—just as defendant’s evidence did not compel the inference that her killing of her attacker was justified. But the evaluation of the competing inferences was properly left to the jury.

The majority speculates that perhaps defendant’s previous stabbing of a man was itself justified; perhaps she “used her knife to ward off a sexual or other serious assault” (majority op at 135). Perhaps; and perhaps defendant was exaggerating, or even fabricating, the abuse she suffered in childhood. These sorts of questions are for the jury, and defendant had a substantial advantage over the People in presenting evidence for the jury to consider. If the prior stabbing was indeed self-defense, nothing stopped her from saying so. The unconventional order of proof in this case—where, apparently with defendant’s implicit consent, the People essentially presented their rebuttal case before she testified—augmented defendant’s advantage, for she was able on her own case to rebut the rebuttal, if she had evidence to rebut it with.

The whole idea of excluding “propensity” evidence, to my mind, loses its meaning in a case like this where defendant offers a justification defense that is based in large part on the claim that she had a propensity, instilled in early childhood, to fear violence. If the jury can consider that propensity, why not another one? The majority relies on People v Santarelli (49 NY2d 241 [1980]), in which we held certain propensity evidence inadmissible to rebut an insanity defense. But the insanity defense in Santarelli was not, fundamentally, a propensity defense, as the justification defense here in large part is.

Judge Jasen, dissenting in Santarelli, suggested that the rule excluding propensity evidence—the rule of People v Molineux (168 NY 264 [1901])—should have little application in cases where there is no dispute as to “whether the defendant actually committed the acts complained of’ (49 NY2d at 255). I find Judge Jasen’s dissent persuasive. But there is no need to overrule Santarelli to decide this case. We need only hold that, where a defendant offers evidence of her own propensities, the People are entitled to present a contrary version.

Judges Ciparick, Graffeo, Read and Pigott concur with Chief Judge Lippman; Judge Smith dissents in a separate opinion.

Order reversed and a new trial ordered.

      . In addition to the thigh stabbing, reference was made during the trial testimony to another stabbing of Wilburn by defendant (in which she cut his cheek) some six years before the homicide.

      . The trial court’s refusal to charge PTSD as well is argued by defendant as a ground for reversal, but inasmuch as we grant defendant relief on a sufficient alternative ground we do not reach that issue.

      . Although the lethality of the shovel was a matter for the jury, it is fair to point out, as defendant does, that the shovel weighed only four tenths of an ounce less than Babe Ruth’s bat, one of the heaviest ever used in the major leagues.


author: Ciparick, J.

text:
    [981 NE2d 260, 957 NYS2d 664]
    In the Matter of P. David Soares, as District Attorney of Albany County, Respondent, v Stephen W. Herrick, as Judge of the County Court of Albany County, Respondent, and Naomi Loomis et al., Appellants.
    Argued and submitted October 16, 2012;
    decided November 27, 2012

      POINTS OF COUNSEL

      Dreyer Boyajian LLP, Albany (William J. Dreyer of counsel), for Naomi Loomis and another, appellants.
    I. Prohibition does not lie to prohibit County Court’s dismissal of the fifth indictment, disqualification of the Albany County District Attorney’s office and appointment of a special district attorney. (Matter of Dondi v Jones, 40 NY2d 8; La Rocca v Lane, 37 NY2d 575, 424 US 968; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; Matter of Steingut v Gold, 42 NY2d 311; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; Matter of State of New York v King, 36 NY2d 59; Matter of Nigrone v Murtagh, 36 NY2d 421; Matter of Rush v Mordue, 68 NY2d 348; Matter of Pirro v Angiolillo, 89 NY2d 351; Matter of Holtzman v Goldman, 71 NY2d 564.) II. County Court had specific authority to dismiss the fifth indictment with leave to re-present, to disqualify the Albany County District Attorney’s office and to appoint a special district attorney. (Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Huston, 88 NY2d 400; People v Di Falco, 44 NY2d 482; People v Zimmer, 51 NY2d 390; Matter of State of New York v King, 36 NY2d 59; Matter of Rush v Mordue, 68 NY2d 348; Matter of Schumer v Holtzman, 60 NY2d 46.)

      E. Stewart Jones, PLLC, Troy (James C. Knox of counsel), for Kenneth Michael Loomis and others, appellants.
    I. A writ of prohibition does not lie to review orders of a trial court disqualifying a district attorney due to a conflict of interest created by a viable civil lawsuit pending against the district attorney in Federal District Court. (People v Leahy, 72 NY2d 510; Matter of Harvey v County of Rensselaer, 83 NY2d 917; Matter of Schumer v Holtzman, 60 NY2d 46; People v Zimmer, 51 NY2d 390; Young v United States ex rel. Vuitton et Fils S. A., 481 US 787; United States v Kember, 685 F2d 451; Matter of Haggerty v Himelein, 89 NY2d 431; Matter of Rush v Mordue, 68 NY2d 348; Matter of Dondi v Jones, 40 NY2d 8; Matter of Hancock, 91 NY 284.) II. The court below abused its discretion in granting the extraordinary writ of prohibition. (La Rocca v Lane, 37 NY2d 575; Matter of Forte v Supreme Ct. of State of N.Y., 48 NY2d 179; Matter of Holtzman v Goldman, 71 NY2d 564; Matter of Rush v Mordue, 68 NY2d 348; Matter of Steingut v Gold, 42 NY2d 311; Matter of Chasm Hydro, Inc. v New York State Dept. of Envtl. Conservation, 58 AD3d 1100, 14 NY3d 27; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783; Collins v State of New York, 69 AD3d 46; Matter of Raheem v New York State Bd. of Parole, 66 AD3d 1270, 14 NY3d 702.)

      Christopher D. Horn, Albany, for respondent.
    The Third Department properly granted the petition for a writ of prohibition. (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Matter of Hearst Corp. v Clyne, 50 NY2d 707; La Rocca v Lane, 37 NY2d 575, 424 US 968; Matter of Proskin v County Ct. of Albany County, 30 NY2d 15; Matter of Cloke v Pulver, 243 AD2d 185; Matter of Haggerty v Himelein, 221 AD2d 138; Matter of Dondi v Jones, 40 NY2d 8; Matter of Rush v Mordue, 68 NY2d 348; Matter of Pirro v Angiolillo, 89 NY2d 351; Matter of Holtzman v Goldman, 71 NY2d 564.)

      Cyrus R. Vance, Jr., District Attorney, Kew Gardens (Edward D. Saslaw of counsel), and Morrie I. Kleinbart, Staten Island, for District Attorneys Association of the State of New York, amicus curiae.
    The constitutional concerns raised by improper disqualification of a duly elected district attorney must be remediable by CPLR article 78, and absent actual prejudice or a substantial risk of such prejudice, a district attorney simply cannot be disqualified. (Matter of Dondi v Jones, 40 NY2d 8; People v Soddano, 86 NY2d 727; Matter of Schumer v Holtzman, 60 NY2d 46; People v Schrager, 74 Misc 2d 833; People v English, 88 NY2d 30; People v Keeton, 74 NY2d 903; People v Jackson, 60 NY2d 848; People v Di Falco, 44 NY2d 482; People v Leahy, 72 NY2d 510; Matter of State of New York v King, 36 NY2d 59.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, we are called upon to determine whether respondent Judge of Albany County Court exceeded his authority under County Law § 701 when he disqualified petitioner District Attorney of Albany County and his staff from prosecuting a case against respondents Naomi Loomis, Robert Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino (collectively the defendants) and appointed a special district attorney to pursue the case. We hold that respondent exceeded his statutory authority and that the Appellate Division’s decision to issue a writ of prohibition proscribing enforcement of his orders was appropriate.

The genesis of this appeal stems from an investigation initiated by petitioner and other agencies in June 2006 relating to the illegal sale of steroids and other prescription drugs over the Internet. As a result of this investigation, an Albany County grand jury returned an indictment against the defendants in early 2007. Petitioner then obtained two successive superseding indictments. The defendants challenged the third indictment and respondent partially granted their motion to dismiss with leave to the People to re-present. After petitioner procured a fourth indictment, respondent, once again, granted the defendants’ dismissal motion, but this time without leave to the People to re-present.

The People appealed respondent’s dismissal of the fourth indictment to the Appellate Division. The court modified respondent’s order by granting the People leave to re-present (see People v Loomis, 70 AD3d 1199, 1201 [3d Dept 2010]). During the pendency of the People’s appeal, the defendants commenced a civil action in the United States District Court for the Middle District of Florida against petitioner and his staff, alleging, among other claims, that their federal constitutional rights had been violated during the prosecution of the criminal case. The defendants further asserted Florida state law causes of action. As the federal civil case proceeded, petitioner obtained a fifth indictment against the defendants. Shortly after this indictment was returned, Federal District Court issued a decision, concluding that petitioner was not entitled to immunity or summary judgment with respect to the constitutional claims lodged against him and his staff. District Court also denied petitioner’s motion for summary judgment on the state common-law claims.

Meanwhile, the defendants moved in County Court to dismiss the fifth indictment. By order dated November 15, 2010, respondent granted the dismissal motion with leave to re-present, but disqualified the Albany County District Attorney’s office “from further prosecution of this matter.” Respondent reasoned that the pending civil lawsuit against petitioner and his staff created “a conflict of interest sufficient to warrant dismissal of the indictment” in that their “personal, professional and financial stake in the outcome of both the civil and criminal cases” establishes a “demonstrable potential for prejudice.” In a subsequent order, dated November 22, 2010, respondent appointed a special district attorney from the community to handle the matter.

As a result, petitioner commenced a proceeding pursuant to CPLR article 78 in the Appellate Division seeking to prohibit enforcement of respondent’s orders (see CPLR 506 [b] [1]). With two Justices dissenting, the Appellate Division granted the petition, vacated the orders and prohibited respondent “from taking any action in reliance on said orders” (Matter of Soares v Herrick, 88 AD3d 148, 157 [3d Dept 2011]). As a threshold matter, the majority determined that respondent’s actions were “reviewable by way of a proceeding in the nature of prohibition” (id. at 152). Addressing the merits, the majority held that respondent exceeded his authority when he disqualified petitioner and appointed a special district attorney under County Law § 701 (see id.). The majority observed that “[t]he appearance of impropriety, standing alone, may not cause the disqualification of a district attorney” (id. at 152) and concluded that the defendants here have failed to “demonstrate [ ] that petitioner’s continued prosecution of their cases would result in actual prejudice” (id. at 154 [internal quotation marks omitted]).

The dissenting Justices would have dismissed the petition. In their view, respondent did not exceed his authority when he disqualified petitioner “on the basis of a conflict of interest” (id. at 154-155). Citing to our decision in Matter of Kavanagh v Vogt (58 NY2d 678 [1982]), the dissenters further opined that the question of whether such conflict warranted disqualification was “a question of law not reviewable by way of prohibition” (Matter of Soares, 88 AD3d at 155). The defendants appeal as of right pursuant to CPLR 5601 (a) and we now affirm.

Our analysis begins with the recognition that a “[djistrict [a]ttorney is a constitutional officer chosen by the electors of a county” (Matter of Dondi v Jones, 40 NY2d 8, 19 [1976], citing NY Const, art XIII, § 13). County Law § 700 vests a district attorney with certain statutory duties including the duty “to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed” (County Law § 700 [1]; Matter of Dondi, 40 NY2d at 19). We have observed that a district attorney’s broad statutory authority to prosecute all crimes and offenses within his or her jurisdiction is generally nondelegable (see People v Soddano, 86 NY2d 727, 728 [1995]).

However, there are certain circumstances where a court may substitute the elected district attorney and appoint a special district attorney. As relevant here, County Law § 701 (1) allows a court to appoint a special district attorney in situations where the district attorney is “disqualified from acting in a particular case to discharge his or her duties at a term of any court.” In People v Leahy (72 NY2d 510 [1988]), we stated that the legislature designed this statute “narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official’s responsibility” (id. at 513). Acknowledging that a court’s authority under County Law § 701 “to displace a duly elected [district [a]ttorney” raises separation of power concerns, we cautioned that “[t]his exceptional superseder authority should not be expansively interpreted” (Leahy, 72 NY2d at 513-514).

With this background in place, the defendants argue that respondent’s decision to disqualify petitioner and appoint a special district attorney was in accordance with County Law § 701. They further contend that, in any event, relief through a writ of prohibition is unavailable to petitioner.

“ It is familiar law that an article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law” (Matter of Schumer v Holtzman, 60 NY2d 46, 51 [1983], citing Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147 [1983]). Rather, the extraordinary remedy

“of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity ‘without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction’ ” (Matter of Morgenthau, 59 NY2d at 147, quoting Matter of Dondi, 40 NY2d at 13).

In the context of this case, we have recognized that “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court” (Matter of Schumer, 60 NY2d at 54). To the extent that Matter of Kavanagh v Vogt (58 NY2d 678 [1982]) stands for the proposition that a court’s decision to disqualify a district attorney is not reviewable by way of prohibition, that case is no longer good law.

Of course, even where prohibition is an available remedy, it “is not mandatory, but may issue in the sound discretion of the court” (La Rocca v Lane, 37 NY2d 575, 579 [1975]).

“In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist” (Matter of Dondi, 40 NY2d at 13; see La Rocca, 37 NY2d at 579-580).

Applying these principles to the facts presented in this case, we conclude that respondent exceeded his authority under County Law § 701 in disqualifying petitioner. In Matter of Schumer, we opined that “courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” (60 NY2d at 55 [emphasis added]). Here, there is no record support for the conclusion that the defendants suffered actual prejudice or any risk thereof in connection with petitioner’s prosecution of the criminal case. On that note, the defendants do not quarrel with the Appellate Division’s previous determination that petitioner’s handling of this criminal case during the time he secured the first four indictments lacked “any improper motive” or was rooted in “malfeasance” or “bad faith” (Loomis, 70 AD3d at 1201-1202; see Matter of Soares, 88 AD3d at 154).

Instead, the defendants contend that the disqualification of petitioner was proper because of the necessary conflict of interest that arose from the civil lawsuit they initiated after respondent dismissed the fourth indictment. We cannot agree. Under our precedent, the existence of a conflict of interest between the district attorney and a defendant, by itself, does not warrant the removal of the district attorney; in addition, a defendant “should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored” (Matter of Schumer, 60 NY2d at 55). Here, the defendants do not point to any prejudice suffered in connection with the fifth indictment returned by the Albany County grand jury. Indeed, this indictment contains virtually identical charges to the fourth indictment, which was obtained well before the defendants filed the civil lawsuit.

Moreover, respondent’s rationale for removing petitioner is likewise unavailing. In his written decision, respondent identifies the purported conflict—petitioner’s “personal, professional and financial stake in the outcome of both the civil and criminal cases”—and cites the mere “potential for prejudice” as his basis for disqualifying petitioner and his staff. Given the absence of a finding by respondent of “actual prejudice” (id.) and, once again, acknowledging that a court’s “exceptional superseder authority should not be expansively interpreted” (Leahy, 72 NY2d at 513-514), respondent’s decision to disqualify petitioner and to appoint a special district attorney was in excess of his authority under County Law § 701.

In sum, while we refrain from concluding that a civil lawsuit commenced by a criminal defendant against a duly elected district attorney in the midst of a pending prosecution will never warrant the disqualification of such district attorney, we see no basis for petitioner’s disqualification here. Thus, having determined that respondent exceeded his statutory authority, we further conclude that the Appellate Division weighed the relevant factors in determining whether to exercise its discretion in issuing the writ of prohibition and that the court’s decision to do so was appropriate.

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

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

Judgment affirmed, without costs.

       At this juncture in the federal lawsuit, the federal constitutional claims against petitioner and his staff have been dismissed. Following District Court’s denial of petitioner’s motion for summary judgment, the United States Court of Appeals for the Eleventh Circuit reversed the judgment of the District Court, concluding that summary judgment should have been granted in favor of petitioner on the federal claims (see Signature Pharm., Inc. v Soares, 448 Fed Appx 917 [11th Cir 2011]). On October 1, 2012, the United States Supreme Court denied the defendants’ petition for a writ of certiorari (— US —, 133 S Ct 167 [2012]). Thus, the only claims that remain pending are the Florida common-law causes of action. We agree with the Appellate Division that these claims “fall far short of demonstrating the actual prejudice needed to remove [him] from prosecution of the case” (Matter of Soares, 88 AD3d at 154 [internal quotation marks omitted]).


author: Smith, J. Read, J. (concurring).

text:
    [981 NE2d 766, 958 NYS2d 65]
    In the Matter of Bronx Committee for Toxic Free Schools et al., Respondents, v New York City School Construction Authority et al., Appellants.
    Argued September 11, 2012;
    decided October 23, 2012

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon, Kristin M. Helmers and Carrie Noteboom of counsel), for appellants.
    The final environmental impact statement demonstrated that compliance with the Brownfield Cleanup Program (BCP) would mitigate the potential adverse impact of contamination by hazardous materials, and identified the specific environmental controls to be put in place. The BCP regulations require a post-remediation site management plan for long-term maintenance and monitoring of the continued effectiveness of the environmental controls. Thus the New York City School Construction Authority complied with the State Environmental Quality Review Act, so that a supplemental environmental impact statement is unnecessary. (Akpan v Koch, 75 NY2d 561; Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674; Matter of Develop Don’t Destroy [Brooklyn] v Urban Dev. Corp., 59 AD3d 312, 13 NY3d 713; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Aldrich v Pattison, 107 AD2d 258; Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commn. of City of N.Y., 259 AD2d 26; Association for Community Reform Now v Bloomberg, 13 Misc 3d 1209[A], 2006 NY Slip Op 51750[U], 52 AD3d 426, 11 NY3d 707; Matter of Coalition Against Lincoln W., Inc. v Weinshall, 21 AD3d 215, 5 NY3d 715; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1.)

      Weil, Gotshal & Manges, LLP, New York City (Gregory Silbert, David Berz and Christopher Barraza of counsel), and New York Lawyers for the Public Interest (Gavin Kearney and Dawn Philip of counsel) for respondents.
    I. The Appellate Division, and the Supreme Court before it, correctly found that the New York City School Construction Authority’s final environmental impact statement (FEIS) was deficient because the School Construction Authority failed to take a hard look at long-term maintenance and monitoring of remediation measures prior to approval of the FEIS. (Akpan v Koch, 75 NY2d 561; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Matter of Save Southard Rd. Neighborhood Coalition v Town of Saratoga Planning Bd., 35 AD3d 1017; Matter of Merson v McNally, 90 NY2d 742; Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508; Matter of Baker v Village of Elmsford, 70 AD3d 181; Matter of Di Veronica v Arsenault, 124 AD2d 442.) II. The Appellate Division properly upheld the Supreme Court’s order that the New York City School Construction Authority issue a supplemental environmental impact statement that addresses long-term maintenance and monitoring of remediation measures for the Mott Haven site. (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Mobil Oil Corp. v City of Syracuse Indus. Dev. Agency, 224 AD2d 15; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390; Develop Don’t Destroy [Brooklyn], Inc. v Empire State Dev. Corp., 33 Misc 3d 330; Waldbaum, Inc. v Incorporated Vil. of Great Neck, 10 Misc 3d 1078[A], 2006 NY Slip Op 50119[U].)

      Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Richard G. Leland, Laura Israel Sinrod and Deuel Ross of counsel), and Sive, Paget & Riesel, P.C. (Mark A. Chertok, Jennifer Coghlan and Edward K. Roggenkamp, IV, of counsel) for The Real Estate Board of New York, Inc., amicus curiae.
    I. The Appellate Division’s decision contradicts well-established precedent holding that a lead agency has broad discretion in determining whether a supplement environmental impact statement is warranted. (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1; Matter of Halperin v City of New Rochelle, 24 AD3d 768; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Marsh v Oregon Natural Resources Council, 490 US 360; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Coalition Against Lincoln W., Inc. v Weinshall, 21 AD3d 215; Matter of Molly, Inc. v County of Onondaga, 2 AD3d 1418.) II. A lead agency need not await completion of Brownfield Cleanup Program remediation and a site management plan before issuing a final environmental impact statement. (Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342; Matter of Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 AD3d 1312.) III. The Appellate Division’s decision sets a dangerous precedent and is contrary to public policy. (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219.)

      Schulte Roth & Zabel LLP, New York City (Howard B. Epstein, Theodore A. Keyes, Sami B. Groff, Lawrence B. Schnapf
      and Valerie L. Sheaffer of counsel), for New Partners for Community Revitalization, amicus curiae.
    I. The Appellate Division correctly ruled that the final environmental impact statement was deficient because the New York City School Construction Authority failed to take a hard look at long-term maintenance and monitoring related to the institutional and engineering controls. (Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341; Williamsburg Around the Bridge Block Assn. v Giuliani, 223 AD2d 64; Matter of Coalition Against Lincoln W., Inc. v Weinshall, 21 AD3d 215; Matter of Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 AD3d 1312; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601.) II. The Appellate Division correctly required the New York City School Construction Authority to prepare a supplemental environmental impact statement that addresses the long-term maintenance and monitoring plans for engineering controls. (Matter of Doremus v Town of Oyster Bay, 274 AD2d 390.)
   OPINION OF THE COURT

Smith, J.

An agency preparing an environmental impact statement (EIS) has broad discretion in deciding what to include and what to omit. We nevertheless hold that in this case the New York City School Construction Authority (Authority) must supplement its EIS to describe certain remedial measures, because the Authority has not challenged petitioners’ showing that such a description is essential to an understanding of the environmental impact of the Authority’s project.

I

The project is the construction of a campus including four public schools in the Mott Haven area of the Bronx. The site selected by the Authority for the campus was formerly a railroad yard. The soil and ground water were significantly contaminated, and had to be cleaned up.

The process of identifying, analyzing and remedying the site’s environmental problems was long and laborious. A first environmental assessment was prepared in 2001; remedial actions were not completed until 2007. In the interval, the Authority prepared many studies, consulted with community groups, repeatedly invited public comment on the project, and complied with a number of statutory requirements not relevant here.

The issue before us is whether the Authority violated the State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.) by failing to discuss in an EIS the methods it adopted for long-term maintenance and monitoring of the controls it used to prevent or mitigate environmental harm. To place this issue in context, we must discuss the impact on the project of another statutory scheme, the Brownfield Cleanup Program (ECL 27-1401 et seq.), by which the State offers inducements for the cleanup of contaminated sites. The Authority successfully applied to participate in the Brownfield Program before it prepared the EIS required by SEQRA.

The most contaminated section of the Mott Haven campus site was accepted into the Brownfield Program by the Department of Environmental Conservation (DEC) in 2005. Participation in the program required the Authority to submit a number of documents to the DEC, among them a Remedial Action Work Plan (RAWP), describing how it proposed to remedy the contamination. In its RAWP, the Authority proposed, among other things, to make use of so-called engineering controls—for example, a vapor barrier under a school building, to prevent contaminants from entering the school, and a hydraulic barrier to prevent recontamination of the site by groundwater (see ECL 27-1405 [11] and 6 NYCRR 375-1.2 [o] [defining “engineering control”]).

The Brownfield statute and the DEC regulations implementing it require a RAWP that includes engineering controls also to include, among other things, “a complete description of . . . any operation, maintenance, and monitoring requirements, including the mechanisms that will be used to continually implement, maintain, monitor, and enforce such controls” (ECL 27-1415 [7] [a] [ii]; see also 6 NYCRR 375-1.8 [h] [1] [ii]). In other words, a site owner is required to describe the means it will use to be sure that its engineering controls continue to work as intended. These long-term maintenance and monitoring methods, which are the focus of this litigation, include such things as the inspection of structures to be sure they are in good condition, and the periodic testing of groundwater for contaminants.

The RAWP that the Authority submitted to the DEC did not describe its plans for long-term maintenance and monitoring. This was because the Authority believed a choice of maintenance and monitoring methods at that time would be premature. In the Authority’s view, such methods are best chosen after cleanup work has been done, and the post-cleanup soil and groundwater conditions can be assessed. The DEC approved the RAWP on July 5, 2006, stating as a condition, among others, that the Authority “must develop a site management plan for [DEC] approval to . . . provide for the operation and maintenance of the components of the remedy.”

After getting DEC’s conditional approval of the RAW!] but before preparing the site management plan that the DEC required, the Authority went through the SEQRA process. It prepared a draft EIS, made it available for public comment and revised it in light of those comments. Neither the draft nor the final version of the EIS described the long-term maintenance and monitoring procedures to be used.

After filing the final version of the EIS, the Authority, on November 6, 2006, made detailed findings as to the environmental impacts of the project. It concluded that “[t]he beneficial impacts of the construction of the proposed new school facility far outweigh the adverse environmental impacts,” that those impacts “can be largely mitigated” by measures identified in the final EIS, and that the project “minimizes or avoids adverse environmental impacts to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures which were identified as practicable” (see ECL 8-0109 [2], [5], [8]).

Petitioners brought this CPLR article 78 proceeding in 2007, challenging the Authority’s SEQRA compliance. Petitioners pointed to several alleged flaws in the EIS, but the only one that now concerns us is its failure to “propose a long-term maintenance and monitoring protocol.” An expert affidavit submitted in support of the petition said that “the long-term inspection, maintenance and monitoring of protective controls is essential to ensuring that [the Authority’s] strategy will sufficiently protect a site’s occupants” and that the strategy outlined by the Authority in its RAWP “can be effective mitigation only if a robust long-term management program is implemented.”

In opposing the petition, the Authority did not assert that the methods of long-term maintenance and monitoring were not important enough to be described in an EIS. Rather, the Authority submitted an expert affidavit explaining that “developing a detailed site management plan at this time is neither necessary nor appropriate because the plan must be governed by post-remediation soil and groundwater conditions, something that cannot be measured until after cleanup is complete.” Supreme Court interpreted the Authority’s position as an admission “that its final Environmental Impact Statement as it stands now is incomplete without a detailed long term maintenance and monitoring plan” and ordered the Authority to prepare a supplemental EIS “based upon any changes to the final Environmental Impact Statement as a result of the [Authority’s] completed, detailed long term maintenance and monitoring plan.”

After Supreme Court’s decision, the Authority prepared a site management plan that included a description of long-term maintenance and monitoring measures, which the DEC approved in November 2008. Petitioners do not dispute that these measures were adequate; thus, the Authority could presumably have complied with Supreme Court’s order and resolved this case simply by filing, in the form of a supplemental EIS, the description of long-term maintenance and monitoring that its site management plan contains. But the Authority did not file a supplemental EIS. Instead, it moved for reargument and renewal, asserting in substance that its submission of the site management plan, and DEC’s approval of it, removed the need for any further SEQRA filing.

Supreme Court granted reargument, but upon reargument adhered to its previous ruling. The Appellate Division affirmed both of Supreme Court’s orders (Matter of Bronx Comm. for Toxic Free Schools v New York City School Constr. Auth., 86 AD3d 401 [1st Dept 2011]). We granted leave to appeal (17 NY3d 717 [2011]), and now affirm.

II

SEQRA requires the preparation of an EIS “on any action . . . which may have a significant effect on the environment” (ECL 8-0109 [2]). The EIS must include, among other things, “a description of the proposed action,” its “environmental impact” and “mitigation measures proposed to minimize the environmental impact” (id. § 8-0109 [2] [a], [b], [f]). In reviewing the sufficiency of an EIS, the role of a court is “to determine whether the agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986] [citations omitted]).

In essence, the position of petitioners here, and the holding of the courts below, is that the methods chosen by the Authority for long-term maintenance and monitoring of its engineering controls were too important not to be described in an EIS. We agree, because petitioners’ showing as to the importance of these measures stands unrebutted on this record.

We do not view this case as a dispute over how much detail must be included in an EIS, or over whether events occurring after the EIS was filed were significant enough to call for a supplement. If those were the issues, we would defer to any reasonable judgment made by the Authority (see Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 318-319 [2006]; Webster Assoc. v Town of Webster, 59 NY2d 220, 227-229 [1983]). But the Authority does not assert that, in its judgment, the maintenance and monitoring measures were relatively minor details that the public did not need to know about. The Authority has not disputed petitioners’ showing that these measures were “essential” to protecting the site’s occupants from dangerous contaminants.

The Authority seems instead to be arguing that it should not have to describe the long-term maintenance and monitoring measures in a supplemental EIS because (1) it reasonably chose not to decide on those measures before its EIS was filed and (2) it adequately described them in the site management plan approved by the DEC as part of the Brownfield Program. Both of these arguments lack merit.

We assume, without deciding, that the Authority acted reasonably in postponing a detailed consideration of its long-term maintenance and monitoring measures until after it had completed cleanup work at the site and after its EIS was filed. That does not mean, however, that mitigation measures of undisputed importance may escape the SEQRA process. DEC regulations provide for the filing of a supplemental EIS to address subjects “not addressed or inadequately addressed in the EIS,” arising from “changes proposed for the project,” from “newly discovered information” or from changed circumstances (6 NYCRR 617.9 [a] [7]). Where important decisions about mitigation can only be made after the initial remedial measures are complete, a supplemental EIS may be called for, as it is here.

Nor does the submission of the site management plan to the DEC, or the approval of that plan as part of the Brownfield process, justify short-circuiting SEQRA review. The Brownfield Program and SEQRA serve related but distinct purposes. SE-QRA is designed to assure that the main environmental concerns, and the measures taken to mitigate them, are described in a publicly filed document identified as an EIS, as to which the public has a statutorily-required period for review and comment. We understand the Authority’s view that, as to this project, it has already done enough public outreach and considered enough public comments, but SEQRA requires it to take this one step more.

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

Read, J. (concurring).

I agree with the result in this appeal in view of the facts and caveats as stated by the majority. But what happened here does, in my view, highlight the uncertainty that lead agencies and developers face when a project reviewable under the State Environmental Quality Review Act (SEQRA) (ECL art 8) is sited on land accepted in whole or in part into the Brownfield Cleanup Program (BCP) (ECL art 27, tit 14).

This assumes, of course, that the developer’s remedial activities are not exempt from SEQRA altogether. The regulations governing the Inactive Hazardous Waste Disposal Site Remedial Program (ECL art 27, tit 13), which is akin to the BCR provide as follows:

“(b) State environmental quality review act applicability. Remedy selection and implementation of remedial actions under Department approved work plans pursuant to ECL article 27, title 13 are not subject to review pursuant to ECL article 8 and its implementing regulation (6 NYCRR Part 617), as an exempt action pursuant to the enforcement exemption provision” (6 NYCRR 375-2.11 [b]; see also ECL 8-0105 [5] [i] [exempting “enforcement proceedings or the exercise of prosecutorial discretion in determining whether or not to institute such proceedings” from SEQRA’s definition of “action”]; Matter of New York Pub. Interest Research Group v Town of Islip, 71 NY2d 292, 306 [1988] [discussing equivalent provision in former part 617 regulations]).

The analogous provision in the BCP regulations is more complicated:

“(b) State environmental quality review act applicability.
“(1) Remedy selection and implementation of remedial actions under Department-approved work plans pursuant to ECL article 27, title 14 are not subject to review pursuant to ECL article 8 and its implementing regulation (6 NYCRR Part 617), provided that design and implementation of the remedy do not:
“(i) commit the Department or any other agency to specific future uses or actions; and
“(ü) prevent evaluation of a reasonable range of alternative future uses of or actions on the remedial site. . . .
“(3) The exemption set forth in this subdivision is in addition to, and not in place of, other exemptions to [sic] that apply pursuant to Parts 617 or 618 of this title (e.g. the enforcement exemption)” (6 NYCRR 375-3.11 [b]).

Respondent in this CPLR article 78 proceeding, the New York City School Construction Authority (the Authority), never claimed that the BCP-related portion of its project was exempt from SEQRA. And perhaps difficulties coordinating BCP and SEQRA review seldom arise because developers routinely qualify for the exemption from SEQRA for remedial activities designed and implemented on the project site pursuant to the BCR.

Here, petitioner Bronx Committee for Toxic Free Schools complains that the protocols chosen by the Authority for long-term maintenance and monitoring of the remedy should have been discussed in the draft environmental impact statement (EIS) to afford the public the opportunity to comment on them. The Legislature, however, has already provided for public comment under the BCP (see ECL 27-1417 [3]; see also Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161, 166 [2010] [“Public notice and opportunities for citizen participation are integral features of the BCP at every stage, from the request to participate (in the program) to issuance of the certificate” of completion issued by the New York State Department of Environmental Conservation (DEC) once a site has been cleaned up in accordance with applicable remedial requirements]). More specifically,

“[t]he BCP calls for some degree of public participation in at least seven different stages of the application and cleanup process: when an original application is filed; before finalizing a remedial investigation work plan; before the DEC approves a proposed remedial investigation report; before the agency finalizes a remedial work plan; before the applicant commences construction at a brownfield site; before the DEC approves a final engineering report; and within 10 days of issuance of a certificate of completion” (see Dale Desnoyers & Larry Schnapf, Environmental Remediation Process is Undergoing Sweeping Changes Mandated by New Brownfields Law, 76 NY St BJ 10, 14 [Oct. 2004]).

The most recent edition of DEC’s Citizen Participation Handbook for Remedial Programs provides for a 45-day public comment period for a draft Remedial Action Work Plan (RAWP), with a public meeting if requested in those cases where the site poses a significant threat to human health or the environment (see New York State Department of Environmental Conservation, DER-23/Citizen Participation Handbook for Remedial Programs § 3.1 [“Summary of Brownfield Cleanup Program Citizen Participation Requirements”] [Jan. 21, 2010], available at http://www.dec.ny.gov/docs/remediation_hudson_pdf/ der23.pdf). As the majority observes, the draft RAWP is supposed to describe “the means [to be used] to be sure that [the proposed remedy’s] engineering controls continue to work as intended” (majority op at 153; see also ECL 27-1415 [7] [a] [i]-[iv]). The Authority was of the view that, in this case, inclusion of these details in the draft RAWP was premature. Accordingly, DEC conditioned its approval of the RAWP, which occurred prior to the Authority’s issuance of a draft EIS, on “develop[ment of] a site management plan for [DEC] approval to . . . provide for the operation and maintenance of the components of the remedy.” If the Authority had addressed long-term maintenance and monitoring in the draft RAWP, which was subject to public review and comment as part of the formal BCP citizen participation program, there presumably would have been no need to cover the same topic separately in the draft EIS. But, as noted previously, it is uncertain how BCP and SEQRA requirements fit together so as to offer meaningful and non-duplicative review of a project. Perhaps DEC will clarify this issue in the context of its proposed SEQRA amendments (see Charlotte A. Biblow, DEC Proposes First Revisions to SEQRA Regulations Since 1996, NYLJ, Sept. 27, 2012 at 3; see also New York State Department of Environmental Conservation, Draft Scope for the Generic Environmental Impact Statement on the Proposed Amendments to the State Environmental Quality Review Act at 5 [July 11, 2012], available at http:// www.dec.ny.gov/docs/permits_ej_operations_pdf/drftscope617.pdf [proposing to add “Brownfield site clean-up agreements under Title 14 of ECL Article 27” to list of actions not requiring review under SEQRA]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Pigott and Jones concur with Judge Smith; Judge Read concurs in result in a separate opinion.

Order affirmed, with costs.

       I frankly confess, though, that I find 6 NYCRR 375-3.11 (b) confusing. Does the exception from the exemption in paragraph (1) of this provision only apply to direct actions (see 6 NYCRR 617.2 [k] [defining “direct action” or “directly undertaken action” as “an action planned and proposed for implementation by an agency”])? Certainly, developers seek acceptance into the BCP because they want to redevelop contaminated property for a defined proposed project—a “specific future use[ ] or action[ ]”—which necessarily “prevent [s] evaluation of a reasonable range of alternative future uses of or actions on the remedial site.” And what does paragraph (3) mean when it says the exemption in paragraph (1) is in addition to the enforcement exemption? This suggests that not all “[r]emedy selection and implementation of remedial actions under Department-approved work plans” under the BCP qualify for the enforcement exemption, contrary to the situation under the Inactive Hazardous Waste Disposal Site Remedial Program (compare 6 NYCRR 375-3.11 [b] [3] with 6 NYCRR 375-2.11 [b]). But then how does a lead agency or developer know when the enforcement exemption applies and when it does not?