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

text:
    [934 NE2d 310, 907 NYS2d 741]
    In the Matter of Robert Wooley, Appellant, v New York State Department of Correctional Services, Respondent.
    Argued June 2, 2010;
    decided July 1, 2010

      POINTS OF COUNSEL

      Hancock & Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for appellant.
    The Department of Correctional Services’ decision denying Robert Wooley the unanimously recommended low dose maintenance treatment for his hepatitis C disease violates his constitutional rights and is arbitrary and capricious, irrational and affected by error of law. (Estelle v Gamble, 429 US 97; Matter of Domenech v Goord, 196 Misc 2d 522, 20 AD3d 416; Erickson v Pardus, 551 US 89; Johnson v Wright, 234 F Supp 2d 352, 412 F3d 398; De La Rosa v State of New York, 173 Misc 2d 1007; Matter of Lucas v Scully, 71 NY2d 399; Matter of Ronson v Commissioner of Correction, State of N.Y., 112 AD2d 488; Brock v Wright, 315 F3d 158; Village of Willowbrook v Olech, 528 US 562; Wegman’s Food Mkts. v State of New York, 76 AD2d 95.)

      Andrew M. Cuomo, Attorney General, Albany (Owen Demuth, Barbara D. Underwood, Peter H. Schiff and Nancy A. Spiegel of counsel), for respondent.
    The Department of Correctional Services’ decision not to treat petitioner with an unproved experimental drug regimen that had not been approved by the federal Food and Drug Administration was rational and consistent with the Eighth Amendment to the US Constitution. (Wilson v Seiter, 501 US 294; Farmer v Brennan, 511 US 825; Matter of Peckham v Calogero, 12 NY3d 424; Matter of Hughes v Doherty, 5 NY3d 100; Matter of New York Assn. of Convenience Stores v Urbach, 92 NY2d 204; Matter of Michael B., 80 NY2d 299; Forbes v Edgar, 112 F3d 262; Dean v Coughlin, 804 F2d 207; Tatta v Wright, 616 F Supp 2d 308; Dias v Vose, 865 F Supp 53.)

      Legal Aid Society, New York City (Steven Banks, John Boston and Milton Zelermyer of counsel), and Prisoners’ Legal Services, Albany (Karen Murtagh-Monks of counsel), for Legal Aid Society of the City of New York, and another, amici curiae.
    I. The Department of Correctional Services’ denial of hepatitis C treatment was deliberately indifferent to Robert Wooley’s medical needs and therefore violated his right to be free of cruel and unusual punishment. (Estelle v Gamble, 429 US 97; Matter of Shomo v Zon, 35 AD3d 1227; Matter of Scott v Goord, 32 AD3d 638; Matter of Domenech v Goord, 20 AD3d 416; Matter of Davis v Goord, 7 AD3d 889; Matter of Jarvis v Pullman, 297 AD2d 842; Matter of Bryant v Brunelle, 284 AD2d 936; Matter of Smith v Alves, 282 AD2d 844; Matter of Allah v White, 243 AD2d 913; Matter of Moore v Leonardo, 185 AD2d 489.) II. The arbitrary and capricious standard is not an appropriate standard of review for prisoners’ constitutional claims of inadequate medical care but nevertheless, judged by that standard, the Department of Correctional Services’ denial of maintenance therapy was arbitrary, capricious, irrational and affected by error of law. (Cove v Sise, 71 NY2d 910; Matter of Curtiss v Angello, 269 AD2d 675; Matter of Parkinson v Columbia County Dist. Attorney, 178 Misc 2d 52; Matter of Patel v Fischer, 67 AD3d 1193; Matter of Scott v Goord, 32 AD3d 638; Matter of Altamore v Barrios-Paoli, 90 NY2d 378; Matter of Nehorayoff v Mills, 282 AD2d 932; Matter of Davis v Goord, 7 AD3d 889; Matter of Bryant v Brunelle, 284 AD2d 936; Matter of Amaker v Goord, 280 AD2d 792.)
   OPINION OF THE COURT

Ciparick, J.

In this case, we must determine whether the denial of certain medical treatment to an inmate by the New York State Department of Correctional Services (DOCS) was arbitrary and capricious, or violative of the Eighth Amendment’s proscription against cruel and unusual punishment. We conclude that it was neither.

I.

Petitioner Robert Wooley has been incarcerated in the custody of DOCS since the late 1980s. Sometime prior to 2001, petitioner was diagnosed with hepatitis C, a viral infection which increases the risk of liver cancer and often leads to cirrhosis of the liver, which can cause liver failure and, ultimately, death.

In 2001, petitioner’s treating physician at DOCS prescribed a combination of drugs—interferon and ribavirin—for a course of treatment lasting 48 weeks. Petitioner initially responded well to the medication, which was the standard treatment protocol for hepatitis C at the time. At the end of the treatment period, petitioner’s hepatitis C viral load was so low as to be undetectable.

Shortly before the treatment period was to end, petitioner contacted Dr. Lester Wright, the Chief Medical Officer for DOCS, by letter, requesting six additional months of the interferon/ribavirin combination treatment, followed by low-dose maintenance interferon therapy. Petitioner submitted medical literature in support of his request; he also contended that, because his hepatitis C fell within the “hard to treat” category, low-dose maintenance interferon therapy could be the only option for slowing the progression of his disease. According to petitioner, Dr. Wright did not respond to his request.

Several months later, in October 2002, petitioner wrote to Dr. Marc Stern, a DOCS Regional Medical Director. According to petitioner’s letter and supporting medical tests, he had suffered a relapse following the cessation of treatment with interferon/ ribavirin. He requested the continuation of the combination therapy, replacing standard interferon with a more effective, newly-developed pegylated interferon. At the time of petitioner’s request for retreatment, the Food and Drug Administration (FDA) had not approved the use of pegylated interferon for re-treatment after a course of standard interferon/ribavirin, and DOCS rejected petitioner’s request for such off-label use of the drug.

Thereafter, a consulting physician examined petitioner and recommended retreatment with pegylated interferon and ribavirin. Based on the recommendation, petitioner’s treating physician again sought approval from Dr. Wright to re-treat with a 48-week course of pegylated interferon/ribavirin combination therapy. After consulting with “[his] expert,” Dr. Wright decided to “approve re[-]treatment with pegylated interferon and ribavirin for up to 48 weeks.”

As petitioner neared completion of re-treatment, his treating physician examined him again, and opined that he would benefit if he continued on low-dose maintenance pegylated interferon. In correspondence to a different staff physician, Dr. Wright rejected the use of maintenance therapy, observing that the recommended treatment was not supported by published studies, but that a “large study [was] ongoing to determine whether it is of value.” Dr. Wright also noted: “Any such use would be experimental ... If there is something particular about this patient and he should be enrolled into an FDA[-] approved clinical trial in the community [,] that could be considered.”

In July 2004, a second consulting physician noted that “[b]ecause of mortal consequences of progression of cirrhosis [,] maintenance therapy was proposed.” Seven months later, the same physician noted that petitioner’s blood test revealed an increased viral load, and he noted at the time that a ‘‘ [m]aintenance dose of peg[ylated interferon] would be a reasonable strategy to stave off progression to . . . cirrhosis . . . This is an approach that has support in literature though [is] by no means proved.” In 2005, a new liver biopsy revealed mild inflammation and fibrosis in petitioner’s liver, but no cirrhosis.

In April 2006, an infectious disease specialist examined petitioner and suggested that consideration should be given to maintenance therapy with pegylated interferon, noting that “[t]here is evidence in published literature for this approach although [it is] not FDA approved or proven in long[-]term studies yet.” In all, five doctors examined petitioner and recommended that he receive low-dose maintenance pegylated interferon. Dr. Wright again denied the request to place petitioner on low-dose therapy, prompting petitioner to file a grievance, which DOCS denied.

After exhausting his administrative remedies, petitioner commenced this CPLR article 78 proceeding to annul the determi-

nation denying his grievance, alleging that the denial of his requested treatment was arbitrary and capricious and violated his Eighth Amendment right to be free of cruel and unusual punishment. Supreme Court denied the petition and dismissed the proceeding, reasoning that DOCS’s determination to deny the requested treatment was rational and did not constitute deliberate indifference to petitioner’s condition in violation of the Eighth Amendment.

The Appellate Division affirmed (61 AD3d 1189 [2009]). We granted petitioner leave to appeal (13 NY3d 705 [2009]), and now affirm.

II.

Petitioner contends that DOCS’s denial of his requested medical treatment was arbitrary and capricious. We disagree. Generally, in a CPLR article 78 proceeding, we examine whether the action taken by the agency has a rational basis (see e.g. Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). We may overturn administrative action where it is “taken without sound basis in reason” or “regard to the facts” (id., citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). If we conclude “that the determination is supported by a rational basis, [we] must sustain the determination even if [this C]ourt concludes that it would have reached a different result than the one reached by the agency” (id., citing Matter of Pell, 34 NY2d at 231).

Here, a rational basis exists for DOCS’s determination denying petitioner’s requested maintenance therapy. The use of the medication sought by petitioner was unproven in long-term studies and not yet approved by the FDA, as even those doctors who suggested the maintenance treatment recognized. It simply cannot be said that DOCS’s determination to deny the treatment lacked a rational basis. Significantly, the record underscores that the determination was made after consideration of the facts of the case, as indicated by Dr. Wright’s denial of the maintenance therapy on the ground that “no published studies supported] th[e] idea” and that it was therefore “experimental.” Accordingly, petitioner’s complaint that the determination was a reflexive application of DOCS policy is misplaced.

To the extent that petitioner suggests that the treatment would not be experimental, we decline to weigh the varying studies available in the medical literature. It is sufficient for our purposes that petitioner’s treating and consulting physicians recognized that the treatment was not yet proven effective, and we conclude that such recognition of the lack of documented success of maintenance levels of pegylated interferon constitutes a rational basis for the DOCS determination denying treatment with a non-FDA-approved protocol.

III.

Petitioner also contends that DOCS’s denial of the requested treatment constitutes cruel and unusual punishment, as prohibited by the Eighth Amendment of the United States Constitution. Again, we disagree. Prison inmates

“rely on prison authorities to treat [their] medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death,’ the evils of most immediate concern to the drafters of the Amendment” (Estelle v Gamble, 429 US 97, 103 [1976] [citation omitted]).

In less serious cases, the “denial of medical care may result in pain and suffering which . . . serve [no] penological purpose” (id.). The United States Supreme Court has explained that the Eighth Amendment requires that prison officials provide “adequate” medical care to inmates (see Farmer v Brennan, 511 US 825, 832 [1994]). A violation of the Eighth Amendment can be proven only if an inmate can demonstrate that prison officials have acted with “deliberate indifference to [his or her] serious medical needs” (Estelle, 429 US at 104 [citation omitted]).

This “deliberate indifference” standard is comprised of an objective component and a subjective component (see e.g. Salahuddin v Goord, 467 F3d 263, 279-280 [2d Cir 2006]). The objective component of the test examines whether the deprivation of medical care was “sufficiently serious” (Farmer, 511 US at 832; see also Salahuddin, 467 F3d at 279). This objective component in turn requires the examination of two factors: First, “whether the prisoner was actually deprived of adequate medical care” (Salahuddin, 467 F3d at 279), and second, “whether the inadequacy in medical care is sufficiently serious” (id. at 280). Thus, the objective component of the standard is essentially a reasonableness inquiry. In other words, the question is whether the response of prison officials to the inmate’s medical needs was objectively reasonable under the circumstances (see id. at 279-280).

The subjective component of the deliberate indifference standard inquires whether “the charged official . . . act[ed] with a sufficiently culpable state of mind” (id. at 280, citing Wilson v Seiter, 501 US 294, 300 [1991]). The Second Circuit has explained this subjective requirement as follows:

“In medical-treatment cases not arising from emergency situations, the official’s state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health. Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law. This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result” (id. [citations omitted]).

When the medical determination made by a prison official was in accordance with a prison policy, the question is whether “following the policy resulted in deliberate indifference to [the inmate’s] medical needs” (Brock v Wright, 315 F3d 158, 166 [2d Cir 2003] [emphasis added]; Johnson v Wright, 412 F3d 398, 404 [2d Cir 2005]).

Under the circumstances presented here, it cannot be said that the denial of petitioner’s requested treatment constituted “deliberate indifference” to his serious medical needs, as the decision to withhold the specific treatment requested was neither objectively unreasonable nor made with subjective recklessness. Although it is true that hepatitis C is a serious medical condition which can ultimately lead to liver failure and death, petitioner here received not one but two 48-week courses of the medically-accepted treatment for his disease. Petitioner was referred to and examined by several specialists. The maintenance treatment petitioner sought was recognized by most if not all of these specialists to be unproven in long-term studies and not yet approved by the FDA. Finally, DOCS pledged that it will continue to evaluate and consider treating petitioner with any new treatment methodologies which may be developed in the future. Although petitioner did not receive the precise treatment he desired, under these facts, the medical treatment provided was constitutionally adequate.

In sum, the determination by DOCS denying petitioner further maintenance therapy after the completion of two 48-week courses of treatment was not arbitrary or capricious, nor was it deliberately indifferent to his medical needs in violation of the Eighth Amendment. Accordingly, the order of the Appellate Division should be affirmed, without costs.

Smith, J. (dissenting).

I see no rational basis for DOCS’s decision, and would hold it to be arbitrary and capricious. I would not reach the constitutional question.

Petitioner seeks a course of treatment which, it is undisputed, he may lawfully have. The FDA classifies it as “experimental,” but does not forbid doctors from prescribing it for their patients. Every doctor who examined petitioner—five in all—agreed that the treatment was medically indicated.

DOCS nevertheless refused to make the treatment available. Its reasons are not clear to me, either from DOCS’s submissions or from the majority opinion’s interpretation of them. Indeed, it is unclear to me whether DOCS claims to be, or the majority thinks it is, acting in petitioner’s interest or its own.

If only petitioner’s interests are considered, I see no possible defense of DOCS’s denial. It is undisputed, on this record, that the treatment offers at least some possibility of protecting petitioner against a life-threatening illness. Nothing in the record suggests that the course of treatment he seeks would endanger him, or subject him to any medical risk that would outweigh its possible benefits.

DOCS has sought to justify its position by reference to its own policy statement, which says: “Medical or cosmetic experimentation and pharmaceutical testing may not be conducted on inmates.” (DOCS Research Directive No. 0403, available at http://www.docs.state.ny.us/Directives/0403.pdf.) The purpose of this policy is self-evident: to prevent inmates from being used as guinea pigs in scientific research. The policy has no rational application here. No pharmaceutical company or research laboratory is trying to use petitioner to test an unproven product. Petitioner, supported by five physicians familiar with his case, is trying to get for his own use a course of treatment that the FDA has called “experimental.” It does not make sense to deny him that treatment in order to protect him from being experimented on.

I can conceive no rational basis for DOCS’s decision to withhold treatment unless it is to avoid the cost. I do not suggest that consideration of cost, even when it comes to treatment of dangerous illnesses, is irrational. There is surely some point at which the cost of treatment is so high, and the likelihood of benefit to the patient so low, that DOCS could reasonably decide that an expenditure of public funds is unjustified.

Perhaps that is the case here. But DOCS has not said so. It has not tried to justify its decision on cost-benefit grounds; it has not even disclosed what it thinks the treatment petitioner is asking for would cost. Under the circumstances, I cannot avoid the conclusion that DOCS has advanced no rational basis for the decision it made.

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

Order affirmed, without costs.

      . Pegylated interferon, also called PEGASYS, is interferon with an additional side chain of polyethylene glycol. The “pegylation” gives the interferon a longer bioavailability, allowing for fewer injections.

      . The term “off-label” refers to the use of a medication or medical device other than that for which the FDA approved it (see Buckman Co. v Plaintiffs’ Legal Comm., 531 US 341, 350 [2001]).

      . The dissent observes that “the treatment [requested by petitioner] offers at least some possibility of protecting petitioner against a life-threatening illness” (dissenting op at 283). The dissent also complains that nothing in the record indicates that the requested treatment would “subject [petitioner] to any medical risk that would outweigh its possible benefits” (id. [emphasis added]). This ignores the fact that petitioner’s examining doctors and the ultimate decision maker, Dr. Wright, unanimously agreed that the treatment was unproven and thus had no known benefits. Despite the dissent’s apparent belief to the contrary, DOCS is hardly required to furnish any and all medical treatment requested by an inmate that might prove even marginally beneficial.

      . DOCS Research Directive No. 0403 prohibits “non-therapeutic medical experimentation [on inmates], including the use of unestablished drugs and unapproved medical techniques.” (Available at http://www.docs.state.ny.us/ Directives/0403.pdf.)


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [933 NE2d 744, 907 NYS2d 145]
    Howard Hoffman, Respondent, v Parade Publications et al., Appellants.
    Argued June 2, 2010;
    decided July 1, 2010

      POINTS OF COUNSEL

      Proskauer Rose LLP, New York City (Elise M. Bloom and Alychia L. Buchan of counsel), for appellants.
    I. The First Department decision erroneously expands the application of the New York City Human Rights Law and rejects the impact requirement in this context. (Carney v Philippone, 1 NY3d 333; Matter of Antine v City of New York, 14 Misc 3d 161; Matter of Auditore v City of New York, 14 Misc 3d 175; Morrison v Budget Rent A Car Sys., 230 AD2d 253; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; People v Finley, 10 NY3d 647; Foley Bros., Inc. v Filardo, 336 US 281; Small v United States, 544 US 385; Shah v Wilco Sys., Inc., 27 AD3d 169; Matter of Midland Ins. Co., 20 Misc 3d 488.) II. The First Department decision also erroneously expands the application of the New York State Human Rights Law and rejects the impact requirements in this context. (Pearce v Manhattan Ensemble Theater, Inc., 528 F Supp 2d 175; Iwankow v Mobil Corp., 150 AD2d 272.) III. Howard Hoffman’s complaint fails to meet the necessary impact requirement; therefore, the trial court’s decision dismissing his New York City Human Rights Law and New York State Human Rights Law claims should be reinstated. (Pearce v Manhattan Ensemble Theater, Inc., 528 F Supp 2d 175; Wahlstrom v Metro-North Commuter R.R. Co., 89 F Supp 2d 506; Shah v Wilco Sys., Inc., 27 AD3d 169.)

      Cohen, Weiss and Simon LLP, New York City (James L. Linsey and Evan Hudson-Plush of counsel), for respondent.
    I. The First Department correctly held that the trial court has subject matter jurisdiction to hear Howard Hoffman’s State and City Human Rights Laws claims. (Matter of Cahill v Rosa, 89 NY2d 14; Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316; Matter of Walston & Co. v New York City Commn. on Human Rights, 41 AD2d 238; Rylott-Rooney v Alitalia-Linee Aeree Italiane-Societa Per Azioni, 549 F Supp 2d 549; Torrico v International Bus. Machs. Corp., 319 F Supp 2d 390; Launer v Buena Vista Winery, Inc., 916 F Supp 204; Shah v Wilco Sys., Inc., 27 AD3d 169; Iwankow v Mobil Corp., 150 AD2d 272.) II. In any event, even if the court were to impose an “impact” requirement, Howard Hoffman felt the impact of his termination in New York City and State.

      Ritz Clark & Ben-Asher LLP, New York City (Miriam E Clark of counsel), Melvin Radowitz, Washington, D.C., Laurie McCann, Asian American Legal Defense and Education Fund, New York City (Kenneth Kimerling of counsel), Disability Rights Education and Defense Fund, Inc., Berkeley, California (Linda D. Kilb of counsel), Lambda Legal Defense and Education Fund, New York City (Natalie Chin of counsel), and National Women’s Law Center, Washington, D.C. (Dina Lassow of counsel), for National Employment Lawyers Association/New York and others, amici curiae.
    I. The Court should reject appellants’ claim that nonresidents and noninhabitants of New York are barred from bringing claims under the State and City Human Rights Laws. (Robins v Max Mara, U.SA., Inc., 923 F Supp 460.) II. The Court should, affirm the lower court’s rejection of the impact requirement. (Lightfoot v Union Carbide Corp., 110 F3d 898; Shah v Wilco Sys., Inc., 27 AD3d 169; Schuler v PricewaterhouseCoopers, LLP, 595 F3d 370; Schuler v PricewaterhouseCoopers, LLP, 514 F3d 1365; Torrico v International Bus. Machs. Corp., 319 F Supp 2d 390.) III. The State and City Human Rights Laws should apply in cases both where a discriminatory decision is made in New York and where the impact of such a decision is felt in New York. (Rylott-Rooney v Alitalia-Linee Aeree Italiane-Societa Per Azioni, 549 F Supp 2d 549; Williams v New York City Hous. Auth., 61 AD3d 62; Ferrante v American Lung Assn., 90 NY2d 623.)
   OPINION OF THE COURT

Pigott, J.

Defendant Parade Publications is the publisher of a nationally syndicated general interest magazine that is distributed in hundreds of American newspapers. Between 2002 and January 1, 2008, plaintiff Howard Hoffman—a resident of Georgia who worked with his assistant at Parade’s office in Atlanta—served as a managing director for Parade’s Newspaper Relations Group (NRG). His duties included developing and overseeing accounts relative to the inclusion of Parade in newspapers in 10 states primarily located in the south and southwest. Hoffman did not service any accounts in New York.

In October 2007, Randy Siegel, president and publisher of Parade, called Hoffman in Atlanta from Parade’s New York City headquarters and advised Hoffman that the Atlanta office would be closed by year’s end and that his employment was being terminated. Hoffman thereafter commenced this age discrimination action against defendants Parade Publications, Condé Nast Publications and Advance Publications, Inc., asserting that his termination violated the New York City Human Rights Law (NYCHRL) (see Administrative Code of City of NY § 8-101 et seq.) and the New York State Human Rights Law (see Executive Law § 290 et seq.).

Defendants moved to dismiss the complaint for, among other things, lack of subject matter jurisdiction. Hoffman opposed the motion, asserting that he attended quarterly meetings in New York City, that the NRG was managed from—and all corporate contracts were negotiated through—the New York City office, and that defendants’ decision to terminate him was made and executed in New York City.

Supreme Court dismissed the complaint for want of subject matter jurisdiction, holding that neither the City nor State Human Rights Law applied to a plaintiff who does not reside in New York because the “impact” of defendants’ alleged discriminatory conduct was not felt within those boundaries (see 2008 NY Slip Op 31892 [U]). The Appellate Division reversed and reinstated the complaint, holding that an “out-of-jurisdiction” employee’s allegation that a discriminatory decision to terminate was made in New York City, if established, is sufficient to demonstrate that New York has subject matter jurisdiction over the claims (65 AD3d 48, 56-57 [1st Dept 2009]). The Appellate Division certified to this Court the question whether its order reversing the judgment of Supreme Court was properly made. We answer the certified question in the negative and reverse.

Both the City and the State Human Rights Laws deem it an “unlawful discriminatory practice” for an employer to discharge an employee because of age (see Administrative Code of City of NY § 8-107 [1] [a]; Executive Law § 296 [1] [a]). The question raised on this appeal is whether nonresidents of the city and state must plead and prove that the alleged discriminatory conduct had an impact within those respective boundaries. We hold that the policies underpinning those laws require that they must.

Addressing Hoffman’s City Human Rights Law claim first, it is clear from the statute’s language that its protections are afforded only to those who inhabit or are “persons in” the City of New York. The law declares, among other things, that “prejudice, intolerance, bigotry, and discrimination . . . threaten the rights and proper privileges of [the city’s] inhabitants,” and that “[i]n the city of New York . . . there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another . . . because of their actual or perceived differences, including those based on . . . age . . . .” (Administrative Code of City of NY § 8-101 [emphasis supplied].) To combat these prejudices, the law created the City Commission on Human Rights to, among other things, “foster mutual understanding and respect among all persons in the city of New York” (Administrative Code § 8-104 [1] [emphasis supplied]). In addition to investigating complaints of discrimination (see Administrative Code § 8-105 [4] [a]), the commission is also charged with working with other municipal agencies in “developing courses of instruction ... on techniques for achieving harmonious intergroup relations within the city of New York” (Administrative Code § 8-105 [1]).

There is disagreement among state and federal courts concerning the territorial reach of the City Human Rights Law in circumstances where the alleged discriminatory conduct is against a nonresident who does not work in New York City. Some courts have concluded that a nonresident plaintiff may invoke the protections of the NYCHRL by merely alleging and proving that the discriminatory decision to terminate was made in the city (see Hoffman v Parade Publs., 65 AD3d at 50; Rohn Padmore, Inc. v LC Play Inc., 679 F Supp 2d 454, 465 [SD NY 2010] [nonresident plaintiff working in California need only show that the alleged discriminatory decision to terminate occurred in the city]).

Other courts have taken the view that the nonresident plaintiff must demonstrate that the alleged discriminatory conduct had an “impact” within the city (see Shah v Wilco Sys., Inc., 27 AD3d 169, 176 [1st Dept 2005] [even if termination decision was made in the city, its impact on the plaintiff was felt outside the city]; Pearce v Manhattan Ensemble Theater, Inc., 528 F Supp 2d 175, 184-185 [SD NY 2007] [same]; Wahlstrom v Metro-North Commuter R.R. Co., 89 F Supp 2d 506, 527-528 [SD NY 2000]; Duffy v Drake Beam Morin, 1998 WL 252063, *11, 1998 US Dist LEXIS 7215, *32-33 [SD NY 1998]). Courts adopting the impact requirement have done so out of concern that merely focusing the inquiry on where the termination decision is made—as opposed to where the impact of that decision is felt—results in the expansion of the NYCHRL to cover any plaintiff who is terminated pursuant to a decision made by an employer from its New York City headquarters regardless of where the plaintiff works (see Wahlstrom, 89 F Supp 2d at 527-528, citing Duffy, 1998 WL 252063, *12, 1998 US Dist LEXIS 7215, *36).

We hold that the impact requirement is appropriate where a nonresident plaintiff invokes the protection of the City Human Rights Law. Contrary to Hoffman’s contention, the application of the impact requirement does not exclude all nonresidents from its protection; rather, it expands those protections to nonresidents who work in the city, while concomitantly narrowing the class of nonresident plaintiffs who may invoke its protection.

The Appellate Division’s rule that a plaintiff need only plead and prove that the employer’s decision to terminate was made in the city is impractical, would lead to inconsistent and arbitrary results, and expands NYCHRL protections to nonresidents who have, at most, tangential contacts with the city. Indeed, the permutations of such a rule are endless, and, although the locus of the decision to terminate may be a factor to consider, the success or failure of an NYCHRL claim should not be solely dependent on something as arbitrary as where the termination decision was made. In contrast, the impact requirement is relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the NYCHRL to those who are meant to be protected—those who work in the city (see Administrative Code of City of NY § 2-201 [defining the territory of the city as constituting the five boroughs, and declaring that the “jurisdictions and powers of the city are for all purposes of local administration and government . . . co-extensive with the territory . . . described”]).

For similar reasons, Hoffman’s State Human Rights Law claim should also be dismissed. The Legislature enacted that law through its invocation of “the police power of [New York State] for the protection of the public welfare, health and peace of the people of this state” (Executive Law § 290 [2] [emphasis supplied]). The law declares that the State of New York “has the responsibility to act to assure that every individual within [New York State] is afforded an equal opportunity to enjoy a full and productive life,” and that failure to afford equal opportunity “threatens the peace, order, health, safety and general welfare of the state and its inhabitants” (Executive Law § 290 [3] [emphasis supplied]).

The obvious intent of the State Human Rights Law is to protect “inhabitants” and persons “within” the state, meaning that those who work in New York fall within the class of persons who may bring discrimination claims in New York. Application of the “impact” requirement to State Human Rights Law claims achieves the same ends as is the case with its City counterpart, because it permits those who work in the state to invoke its protections. Therefore, we conclude that a nonresident must plead and prove that the alleged discriminatory conduct had an impact in New York (see e.g. Pearce, 528 F Supp 2d at 185; Lucas v Pathfinder’s Personnel, Inc., 2002 WL 986641, *2, 2002 US Dist LEXIS 8529, *4 [SD NY 2002]; Duffy, 1998 WL 252063, *12, 1998 US Dist LEXIS 7215, *36).

The State Human Rights Law’s “extraterritorial” provision underscores defendants’ argument that the law does not protect a nonresident like Hoffman. Enacted in 1975, this amendment called for the application of the State Human Rights Law “to certain acts committed outside” New York (Executive Law § 298-a). The thrust of section 298-a is to “outlaw[ ] certain discriminatory practices committed outside New York State against New York residents and businesses” (Sponsor’s Mem, Bill Jacket, L 1975, ch 662, at 9). Specifically, it protects New York residents, domestic corporations, and corporations doing business in New York from discriminatory acts committed outside the state (see Executive Law § 298-a [1]), and subjects New York residents and domestic corporations who commit an “unlawful discriminatory practice” against New York residents outside the state to almost all of the provisions of the law (Executive Law § 298-a [2] [excepting the application of the penal provisions]; see Mem of Exec Director of Law Rev Commn, Bill Jacket, L 1975, ch 662, at 22-23; see also Budget Rep on Bills, Bill Jacket, L 1975, ch 662, at 16). Under this statutory scheme, while New York residents may bring a claim against New York residents and corporations who commit “unlawful discriminatory practices” outside the state, the Legislature plainly has not extended such protections to nonresidents like Hoffman, who are unable to demonstrate that the impact of the discriminatory act was felt inside the state.

According to the complaint, Hoffman was neither a resident of, nor employed in, the City or State of New York. Nor does Hoffman state a claim that the alleged discriminatory conduct had any impact in either of those locations. At most, Hoffman pleaded that his employment had a tangential connection to the city and state. Therefore, Supreme Court properly dismissed Hoffman’s age discrimination claims for want of subject matter jurisdiction.

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

Jones, J. (dissenting). At issue is whether New York courts have subject matter jurisdiction over a nonresident plaintiffs claims against a New York employer for an alleged unlawful discriminatory practice that occurred in New York City. Plaintiff Howard Hoffman, a resident of Georgia, commenced this action under the New York City Human Rights Law (NYCHRL) and New York State Human Rights Law (NYSHRL) against his New York City employer, defendant Parade Publications, and others, alleging that Parade terminated his employment because of his age. The complaint states the following. Hoffman maintained the company’s Atlanta office—staffed by himself and an assistant. In performing his duties of developing and maintaining Parade’s accounts in southern and southwestern states, Hoffman maintained constant communications with the New York City office, including personal visits to Parade’s management in New York City. His supervisor and Parade’s president and publisher were based in the New York City office. Additionally, the decision to discharge him was made and communicated to him from the New York City office. Because the alleged unlawful discriminatory act occurred in New York City by a New York City employer, I believe Supreme Court has subject matter jurisdiction over Hoffman’s NYCHRL and NYSHRL claims of age discrimination. Accordingly, I respectfully dissent.

In promulgating the State’s Human Rights Law, the Legislature

“declare[d] that the state has the responsibility to act to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice [or] intolerance . . . not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants” (Executive Law § 290 [3]).

The purpose of the act is broad and appears to be threefold: to prevent discrimination against individuals within this state; to protect the inhabitants of this state from discrimination; and to protect the general welfare of this state by curbing unlawful discriminatory practices within the state. Section 297 (9) of the Executive Law provides that “[a]ny person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages.” Similarly, the NYCHRL (Administrative Code of City of NY § 8-101) states that “the existence of groups prejudiced against one another” based on, among other things, age, endangers “the health, morals, safety and welfare of the city and its inhabitants.” Discrimination “menace[s] the institutions and foundation of a free democratic state” (id.). Under both Human Rights Laws, the discharge of an employee by an employer because of his or her age is an “unlawful discriminatory practice” (see Executive Law § 296 [1] [a]; Administrative Code of City of NY § 8-107 [1] [a]).

Although neither act has a residency requirement to assert a claim, some New York State and federal courts have adopted a jurisdictional limitation applicable to nonresidents asserting NYCHRL and NYSHRL actions, requiring that the discriminatory act take place within the jurisdiction in question and the impact of such discriminatory conduct be felt within that jurisdiction (see Pearce v Manhattan Ensemble Theater, Inc., 528 F Supp 2d 175, 184-185 [SD NY 2007]). However, these cases, upon which the majority relies, are wholly distinguishable from the case at bar. For example, in Pearce, the plaintiff, a resident of Idaho, alleged that New York defendants rescinded their oral agreement for her to act in a national tour. The District Court dismissed the plaintiffs NYCHRL and NYSHRL claims of disability discrimination. It noted that the complaint did “not specify whether any performances were expected to take place in New York State” and concluded that the plaintiff “failed to make the requisite allegation that the decision had an impact in New York City and State” (id. at 184). In Wahlstrom v Metro-North Commuter R.R. Co. (89 F Supp 2d 506, 527-528 [SD NY 2000]), the plaintiffs NYCHRL claim involved a sexual harassment allegation regarding an act that occurred in White Plains, New York. The court, characterizing White Plains as “well outside the borders of New York City,” concluded that the act had no impact in New York City (id. at 527).

In Duffy v Drake Beam Morin (1998 WL 252063, 1998 US Dist LEXIS 7215 [SD NY 1998]), two plaintiffs asserted NYCHRL claims against their employer, alleging that the decision to fire them occurred in New York City. The plaintiffs worked in Melville, New York and Parsippany, New Jersey, respectively. Their immediate supervisors worked in those offices as well. There, the District Court concluded that an allegation that the decision to fire them occurred in the city “is insufficient to establish a violation of the [NYCHRL] when the employees affected by that decision did not work in New York City . . . [and were not] subject to any discriminatory conduct in New York City” (1998 WL 252063 at *12, 1998 US Dist LEXIS 7215 at *35-36). Also, in Shah v Wilco Sys., Inc. (27 AD3d 169 [1st Dept 2005]), the plaintiff, a resident of New Jersey, worked as a programmer for a New York City defendant, but was assigned to work on a project in Jersey City, New Jersey. For several months, she worked only in Jersey City, and was fired at the client’s office in Jersey City. Plaintiff commenced a NYCHRL action against the defendant. The Appellate Division, citing Wahlstrom, concluded that “the NYCHRL would not apply since its impact on her occurred in New Jersey” (id. at 176).

On the other hand, in Tebbenhoff v Electronic Data Sys. Corp. (2005 WL 3182952, 2005 US Dist LEXIS 29874 [SD NY 2005]), the plaintiff, a New Jersey resident, asserted NYCHRL and NYSHRL claims against his former employer. In that case, the plaintiff traveled through the Mid-Atlantic region as a salesperson, and worked from home for convenience. The plaintiff alleged to have maintained a “presence” in the New York City office. The District Court held that the “plaintiffs action [fell] within the jurisdictional bounds of the NYSHRL” because the decision to terminate and the termination occurred in New York (2005 WL 3182952 at *5, 2005 US Dist LEXIS 29874 at *14). As to the NYCHRL claim, the court took note of cases applying an impact rule, but permitted the plaintiff to proceed in his NYCHRL claim, reasoning, because the discriminatory act was committed within New York City, “his termination cannot be said to have had no impact within New York City” (2005 WL 3182952 at *6, 2005 US Dist LEXIS 29874 at *15).

Subsequently, in Rylott-Rooney v Alitalia-Linee Aeree Italiane-Societa Per Azioni (549 F Supp 2d 549 [SD NY 2008]), the plaintiff, a resident of Minnesota working out of the defendant’s Minneapolis office, commenced NYCHRL and NYSHRL claims against her employer, alleging age discrimination. The complaint alleged that the plaintiff reported to the defendant’s New York City office by phone and occasionally in person; attended work-related meetings in the New York office; and the decision to discharge her was made in New York and communicated to her while in New York. The District Court reviewed Shah, Tebbenhoff and other conflicting federal authority, as well as New York’s long-arm jurisdiction over tortfeasors, and held that the Human Rights Laws should “apply either when the initial discriminatory act (for example, a termination) occurs in New York or when the original experience of injury, which occurs at the employee’s workplace, is in New York” (id. at 554). It concluded that, because the termination occurred in New York, plaintiff “ established] discrimination ‘within’ New York, even if . . . [plaintiff] felt the effects of this termination at her workplace in Minnesota” (id. at 554).

New York State and federal courts have, until now, tailored jurisdictional limitations to permit nonresident plaintiffs to maintain NYCHRL and NYSHRL claims against employers and have reached reasonable results, despite the lack of clarity as to the appropriate rule. While the majority correctly asserts that a disagreement exists among state and federal courts concerning the jurisdictional parameters of the Human Rights Laws, the cases upon which it relies to impose the so-called “impact” rule involve plaintiffs alleging few, if any, instances of unlawful discriminatory practices occurring within New York City or State. Here, Hoffman asserts that he was managed from New York, the decision to terminate his position occurred in New York and he was informed of that decision via a telephone call from New York City. Hoffman additionally asserted that he went to New York City to negotiate retaining his employment with the president and publisher of Parade. He asserts age discrimination as the cause of his discharge, which is unlawful conduct in New York City and New York State. The Appellate Division below observed, and I agree, “that it would be contrary to the purpose of both statutes to leave it to the courts of other jurisdictions to appropriately respond to acts of discrimination that occurred here” (65 AD3d 48, 57 [2009]). In short, the “impact” rule—a rule that appears nowhere in the text of the Human Rights Laws—unnecessarily precludes New York courts from protecting individuals from discrimination within the city and state and handicaps the city and state from curbing such practices.

Accordingly, I would affirm the order of the Appellate Division and answer the certified question in the affirmative.

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

Order reversed, etc.


author: Jones, J. Ciparick, J. (dissenting in part).

text:
    [934 NE2d 304, 907 NYS2d 735]
    Brandy B., Individually and as Mother and Natural Guardian of Brenna B., an Infant, Appellant, v Eden Central School District et al., Respondents, et al., Defendant. (And a Third-Party Action.)
    Argued April 27, 2010;
    decided June 10, 2010

      POINTS OF COUNSEL

      Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for appellant.
    I. The Appellate Division incorrectly applied this Court’s opinion in Mirand v City of New York (84 NY2d 44 [1994]). (Hoose v Drumm, 281 NY 54; Lawes v Board of Educ. of City of N.Y., 16 NY2d 302; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Kush v City of Buffalo, 59 NY2d 26.) II. The Appellate Division erred in implicitly holding that Eden Central School District had not been negligent in disregarding plaintiffs request to keep Brenna B. and Robert E separated. (Hoose v Drumm, 281 NY 54; Lawes v Board of Educ. of City of N.Y., 16 NY2d 302; Sadowski v Long Is. R.R. Co., 292 NY 448; Levine v City of New York, 309 NY 88; Mirand v City of New York, 190 AD2d 282; Murray v Research Found, of State Univ.

      of N.Y., 283 AD2d 995, 96 NY2d 719; Mary KK. v Jack LL., 203 AD2d 840; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Kush v City of Buffalo, 59 NY2d 26.) III. The Appellate Division erred in holding that, as a matter of law, Child and Family Services lacked notice of the danger that Robert F. posed to Brenna B. and others. (Derdiarian v Felix Contr. Corp., 51 NY2d 308.)

      Goldberg Segalla LLP, Buffalo (Julie Pasquariello Apter of counsel), for Eden Central School District and others, respondents.
    I. The Appellate Division’s decision was based on Mil-brand v Kenmore-Town of Tonawanda Union Free School Dist. (49 AD3d 1341 [2008]) not Mirand v City of New York (84 NY2d 44 [1994]). II. The principles of Mirand u City of New York (84 NY2d 44 [1994]) are consistent with the principles stated in Milbrand v Kenmore-Town of Tonawanda Union Free School Dist. (49 AD3d 1341 [2008]). (Murray v Research Found, of State Univ. of N.Y., 184 Misc 2d 453, 283 AD2d 995; Doe v Board of Educ. of Morris Cent. School, 9 AD3d 588; Derdiarian v Felix Contr. Corp., 51 NY2d 308.) III. Plaintiff-appellant has failed to submit proof that she requested that her daughter be separated from third-party defendant Robert F. (David XX. v Saint Catherine’s Ctr. for Children, 267 AD2d 813; Mirand v City of New York, 84 NY2d 44; Milbrand v Kenmore-Town of Tonawanda Union Free School Dist., 49 AD3d 1341; Kozakiewicz v Frontier Middle School, 37 AD3d 1138.)

      Damon Morey LLP, Buffalo (Michael J. Willett of counsel), for Child and Family Services of Erie County, respondent.
    I. Child and Family Services was entitled to summary judgment because it established that it did not have specific knowledge or notice of a propensity on the part of Robert F. to engage in conduct of the type alleged in the complaint. (Mirand v City of New York, 84 NY2d 44; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Hoose v Drumm, 281 NY 54; Waldon v Little Flower Children’s Serv., 1 NY3d 612; Liang v Rosedale Group Home, 19 AD3d 654; DiCarlo v City of New York, 286 AD2d 363; Lawes v Board of Educ. of City of N.Y., 16 NY2d 302; LaTorre v Genesee Mgt, 90 NY2d 576; Rios v Smith, 95 NY2d 647.) II. Child and Family Services had no duty to protect the infant plaintiff from harm which occurred when the foster child was in the physical custody and control of Eden Central School District. (Howard v Parsons’ Child & Family Ctr., 306 AD2d 725; Cappello v St. Christopher’s, Jennie Clarkson Child Care Servs., 282 AD2d 566; Pratt v Robinson, 39 NY2d 554; Bertrand v Board of Educ. of City of N.Y.,
      272 AD2d 355, 95 NY2d 760; Purdy v Public Adm’r of County of Westchester, 72 NY2d 1.)
   OPINION OF THE COURT

Jones, J.

In this action against defendants Eden Central School District and Child and Family Services of Erie County (CFS) for damages resulting from an alleged sexual assault committed by an 11-year-old student upon a five-year-old student, the issues are whether (1) the school district had sufficiently specific knowledge or notice of the dangerous conduct which caused the injury so that the third-party act could have been reasonably anticipated and (2) CFS had a duty to warn the child offender’s foster parents and others of the need to closely supervise him. We hold that the school district proved as a matter of law that it did not have sufficiently specific knowledge or notice of the injury-causing conduct. As to CFS, plaintiff did not set forth a prima facie claim against it.

Robert E, born October 1991, has a troubling history. Based upon records from multiple sources, he was removed from his parents’ home at age three due to neglect and possible physical abuse. After living in foster care for several years, he resided with his father, stepmother and several siblings until he was hospitalized at age nine because he displayed severe aggression in the home.

In October 2000, Robert was admitted to Western New York Children’s Psychiatric Center, where he resided until his placement at Crestwood Children’s Center in January 2001. Crest-wood’s assessment of Robert, dated September 2001, noted his risk behavior involved: “verbal aggression, aggression towards himself and others, threats with weapons, fire setting, hyperactivity, impulsivity, auditory hallucinations, history of stealing, temper tantrums, poor peer relations, academic problems, and history of suicidal injurious ideations.” The assessment further stated that he had not “presented any of his referral symptoms since admission.” Crestwood also recommended that Robert receive “a lower level of care in [the] form of community residence,” noting that he “has been free from self-harm as well as not harming or threatening others.”

In January 2002, Robert entered the Lee Randall Jones Community Residence. At the same time, he was enrolled at the Stanley G. Falk School. A Counseling Individualized Education Plan (IEP) Summary Review conducted by the Falk School in February 2002 indicated that Robert was “a pleasant boy who appears to be adapting well to his structured school environment . . . [who] displays appropriate social skills in his interactions with others including, greetings, eye contact, taking turns, and sharing.” The review considered behavior concerns for Robert, which included restless and distractive behavior, and concluded that the Falk School was “appropriate in the least restrictive environment to meet his varied needs.” In August 2002, Samantha Heise, Robert’s case coordinator at the community residence, wrote that “Robert ha[d] not had one incident of physical aggression towards others or himself since admission.” She noted that he had positive peer interaction. A subsequent psychological evaluation provided by the Falk School and the community residence’s “Admission Committee Meeting Case Presentation” summarized Robert’s prior acts, including behaviors detailed herein, as well as exposing himself and masturbating in public. It appears that Robert’s stated history predates his hospitalization.

Sometime in 2002, Robert began residing with foster parents. In September 2002, he was transferred to the Eden Central School District to attend fifth grade. Robert’s December 2002 IEP prepared by the school’s committee recommended that he be placed in general education classes for science and social studies. In an undated, 2002-2003 Eden Central School District progress report, it was noted that “Robert has a friendly personality. He was very polite with his peers and teachers. He will continue to need support for social and emotional development next year.” Regarding his social and emotional development, his 2002-2003 IEP stated that he was immature for his age, seeking physical hugs and attention from adults, but that he did not need escorts or restraints. He was also assigned individual counseling and group counseling once a week throughout the school year.

In September 2002, Brenna B., who lived in the same neighborhood as Robert, started kindergarten with the Eden Central School District. Brenna and Robert rode the same school bus. It was there that the alleged sexual assault occurred in March 2003. Brenna’s mother, Brandy B., had received some notice from Brenna of inappropriate interactions between the two children, namely, that Robert called Brenna his girlfriend; she spoke to the bus driver and requested that the two children not sit together. Thereafter, Brenna told her mother that Robert had exposed himself to her while sitting together on the school bus, and forced her to touch him. Brandy commenced this action against the school district for injuries resulting from the alleged sexual assault based upon inadequate supervision of the children and against CFS for failing to warn the foster parents of the need to closely supervise Robert. Supreme Court granted defendants summary judgment dismissing the complaint. The Appellate Division affirmed (63 AD3d 1583 [2009]). Plaintiff appeals by leave of this Court (13 NY3d 703 [2009]). We now affirm.

It is well-settled that schools have a duty to adequately supervise their students, and “will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” (Mirand v City of New York, 84 NY2d 44, 49 [1994], citing Lawes v Board of Educ. of City of N.Y, 16 NY2d 302, 306 [1965] and Decker v Dundee Cent. School Dist., 4 NY2d 462, 464 [1958]). However, unanticipated third-party acts causing injury upon a fellow student will generally not give rise to a school’s liability in negligence absent actual or constructive notice of prior similar conduct (see id.). “[I]t must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” (id., citing Bertola v Board of Educ. of City of N.Y., 1 AD2d 973 [2d Dept 1956]). Summary judgment must be granted if the proponent makes “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,” and the opponent fails to rebut that showing (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, the alleged sexual assault against Brenna was an unforeseeable act that, without sufficiently specific knowledge or notice, could not have been reasonably anticipated by the school district. Robert’s history demonstrates that he had severe behavioral issues that had not manifested themselves for more than two years. Since his initial hospitalization in 2000, each program noted that he had not displayed any aggression towards anyone, and, because of his behavioral improvements, he was approved for less restrictive programs. More significantly, his prior history did not include any sexually aggressive behavior. Thus, without evidence of any prior conduct similar to the unanticipated injury-causing act, this claim for negligent supervision must fail.

Additionally, Brandy’s reliance upon her statement to the bus driver—that she did not want the two children sitting together—and Robert’s behavioral history as notice is unavailing. Brandy’s statement did not name Robert or attribute any misbehavior to the unidentified boy that Brandy wanted to separate from her daughter. Moreover, his past conduct without any subsequent incident of aggression was far too removed to require that the school district provide Robert an aide or that CFS warn others of Robert’s past. Therefore, because defendants demonstrated that they had no specific knowledge or notice of any similar conduct which caused the injury and plaintiff presented no triable issue of fact, the courts below properly granted them summary judgment.

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

Ciparick, J. (dissenting in part).

Because I believe a reasonable jury could find that sufficient notice was given to Eden Central School District and Eden Central School District Board of Education (collectively, the school defendants) and that the sexual assault here was a “foreseeable injur[y] proximately related to the absence of adequate supervision” (Mirand v City of New York, 84 NY2d 44, 49 [1994]), I respectfully dissent from the majority’s holding as it relates to the school defendants.

A plaintiff attempting to hold a school district liable for harm to one student caused by another must satisfy a two-part test (see Mirand, 84 NY2d at 49-50). First, to show that the school negligently breached its duty to supervise, a plaintiff must establish “that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused [the] injury; that is, that the third-party acts could reasonably have been anticipated” (id. at 49). Second, this breach must have been the proximate cause of the injury, i.e. “under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence” (id. at 50, citing Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Here, a reasonable jury could find both prongs of the test satisfied.

The overarching question, as we emphasized in Mirand, is whether circumstances would have put a “reasonable person on notice to protect against the injury-causing act” (Mirand, 84 NY2d at 49). This notice may come either from prior, similarly dangerous conduct or from other circumstances that render the injury foreseeable (see e.g. id. at 49-51 [affirming liability where school knew of threats to plaintiff and “(t)he jury needed little more than its own common experience to conclude” that there should, have been greater supervision (id. at 51)]). Thus, the Appellate Divisions have found circumstances in which the absence of supervision, without any more specific notice, is so egregious as to give rise to liability (see Doe v Fulton School Dist., 35 AD3d 1194, 1195 [4th Dept 2006]). In Fulton School Dist., for example, the Fourth Department held that “a jury could find that [the alleged sexual assault] was a reasonably foreseeable consequence of the District’s failure to provide adequate supervision . . . even in the absence of notice of a prior sexual assault” (id. at 1195). Similarly, the Third Department has found that circumstances may be sufficient “to put defendants on notice of a potentially harmful situation” where a 12-year-old student repeatedly sexually assaulted a six-year-old student because “the instances of inappropriate touching occurred on multiple occasions in two different locations over a period of time” (Doe v Board of Educ. of Morris Cent. School, 9 AD3d 588, 591 [2004]). Here, a reasonable jury could find that circumstances were sufficient to put the school defendants on notice that closer supervision was appropriate.

While Robert’s history of mental illness alone might not “put a reasonable person on notice” that he would sexually assault a fellow student (see Mirand, 84 NY2d at 49), this history must be read in conjunction with the school’s actual knowledge that he was frequently interacting closely with a kindergartner on the school bus. As the school defendants indisputably knew, Robert has a history of sometimes violent behavior as well as inappropriate sexual behavior, including exposing himself and masturbating in public. Although he has made remarkable progress, a jury could find that the mother’s communications with the bus driver put the school defendants on notice that something unusual was going on between Robert, an 11 year old with a history of serious mental illness, and Brenna, a five year old who regularly sat with him. According to the mother’s deposition testimony, she told the driver that “Brenna, who was in kindergarten, seems to be interacting with this twelve-year-old [sic].” She allegedly followed up with two letters to the driver, one requesting that her two children sit together and a second requesting that the driver call her to discuss the situation. These communications between the mother and the driver, considered along with Robert’s history, are enough to allow a reasonable jury to find that the school defendants had sufficient notice of a dangerous situation and could have anticipated the sexual assault.

With respect to proximate cause, the second prong of the Mirand test, a reasonable jury could find that the absence of adequate supervision on the bus was a proximate cause of Brenna’s injury. As we noted in Mirand, “[p]roximate cause is a question of fact for the jury where varying inferences are possible” (84 NY2d at 51).

Although I would permit the negligent supervision action to go forward against the school defendants, I agree with the majority that the action against Child and Family Services of Erie County (CFS) was properly dismissed. The complaint alleges that CFS failed to warn the school and foster family that Robert needed close supervision at all times, but there is no evidence that it withheld any information or could have anticipated that Robert would sexually assault a fellow student.

Therefore, I would modify by affirming the Appellate Division’s grant of summary judgment to CFS and reversing its order granting summary judgment to the school defendants, and I would reinstate the amended complaint as to the school defendants.

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

Order affirmed, with costs.


author: Jones, J.

text:
    [933 NE2d 718, 907 NYS2d 119]
    Estate of Saul Schneider, Deceased, Appellant, v Victor M. Finmann et al., Respondents, et al., Defendant.
    Argued May 4, 2010;
    decided June 17, 2010

      POINTS OF COUNSEL

      Nicholas J. Damadeo, P.C., Huntington (Nicholas J. Damadeo of counsel), for appellant.
    I. A decedent’s claim for legal malpractice that occurred during his lifetime survives his death and includes a claim for increased estate tax liability. (Nembach v Giaimo & Vreeburg, 209 AD2d 222; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282; Deeb v Johnson, 170 AD2d 865; Ackerman v Price Waterhouse, 84 NY2d 535; Kerbein v Hutchison, 30 AD3d 730; Iser v Kerrigan, 37 AD3d 662; Pratt v Spalty Sons, 135 Misc 2d 588; Matter of Pascale, 168 Misc 2d 891; Estate of Spivey v Pulley, 138 AD2d 563.) II. New York’s strict privity rule should be modified in estate planning malpractice cases. (Savings Bank v Ward, 100 US 195; Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377; Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536; BDG Oceanside, LLC v RAD Term. Corp., 14 AD3d 472.)

      Cullen and Dykman LLP, Garden City (Peter J. Mastaglio and Justin F. Capuano of counsel), for respondents.
    I. Since decedent, while alive, had no claim against his attorney for malpractice arising from increased estate tax liability, that claim never passed to his estate. (Grosso v Estate of Gershenson, 33 AD3d 587; Viscardi v Lerner, 125 AD2d 662; Estate of Spivey v Pulley, 138 AD2d 563; Mali v De Forest & Duer, 160 AD2d 297; Deeb v Johnson, 170 AD2d 865; Harder v Arthur F. McGinn, Jr., P. C., 89 AD2d 732, 58 NY2d 663; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582; Nembach v Giaimo & Vreeburg, 209 AD2d 222; Matter of Pascale, 168 Misc 2d 891; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282.) II. The cause of action to recover damages resulting from the alleged negligent tax advice did not accrue until decedent died. (Kronos, Inc. v AVX Corp., 81 NY2d 90; Ackerman v Price Waterhouse, 84 NY2d 535; Kerbein v Hutchison, 30 AD3d 730; Global Fin. Corp. v Triarc Corp., 93 NY2d 525.) III. There is no need to further modify New York’s privity rule in estate planning malpractice cases. (Savings Bank v Ward, 100 US 195; Ultramares Corp. v Touche, 255 NY 170; Glanzer v Shepard, 233 NY 236; White v Guarente, 43 NY2d 356; Credit

      Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536; Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417; Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377; State of Cal. Pub. Employees’ Retirement Sys. v Shearman & Sterling, 95 NY2d 427; Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582.)
   OPINION OF THE COURT

Jones, J.

At issue in this appeal is whether an attorney may be held liable for damages resulting from negligent representation in estate tax planning that causes enhanced estate tax liability. We hold that a personal representative of an estate may maintain a legal malpractice claim for such pecuniary losses to the estate.

The complaint alleges the following facts. Defendants represented decedent Saul Schneider from at least April 2000 to his death in October 2006. In April 2000, decedent purchased a $1 million life insurance policy. Over several years, he transferred ownership of that property from himself to an entity of which he was principal owner, then to another entity of which he was principal owner and then, in 2005, back to himself. At his death in October 2006, the proceeds of the insurance policy were included as part of his gross taxable estate. Decedent’s estate commenced this malpractice action in 2007, alleging that defendants negligently advised decedent to transfer, or failed to advise decedent not to transfer, the policy which resulted in an increased estate tax liability.

Supreme Court granted defendants’ motion to dismiss the complaint for failure to state a cause of action. The Appellate Division affirmed (60 AD3d 892 [2009]), holding that, in the absence of privity, an estate may not maintain an action for legal malpractice. We now reverse and reinstate plaintiff s claim.

Strict privity, as applied in the context of estate planning malpractice actions, is a minority rule in the United States. In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, “absent fraud, collusion, malicious acts or other special circumstances” (Estate of Spivey v Pulley, 138 AD2d 563, 564 [2d Dept 1988]). Some Appellate Division decisions, on which the Appellate Division here relied, have applied strict privity to estate planning malpractice lawsuits commenced by the estate’s personal representative and beneficiaries alike (Deeb v Johnson, 170 AD2d 865 [3d Dept 1991]; Spivey, 138 AD2d at 564; Viscardi v Lerner, 125 AD2d 662, 663-664 [2d Dept 1986]; Rossi v Boehner, 116 AD2d 636 [2d Dept 1986]). This rule effectively protects attorneys from legal malpractice suits by indeterminate classes of plaintiffs whose interests may be at odds with the interests of the client-decedent. However, it also leaves the estate with no recourse against an attorney who planned the estate negligently.

We now hold that privity, or a relationship sufficiently approaching privity, exists between the personal representative of an estate and the estate planning attorney. We agree with the Texas Supreme Court that the estate essentially “ ‘stands in the shoes’ of a decedent” and, therefore, “has the capacity to maintain the malpractice claim on the estate’s behalf’ (Belt v Oppenheimer, Blend, Harrison & Tate, Inc., 192 SW3d 780, 787 [Tex 2006]). The personal representative of an estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate. The attorney estate planner surely knows that minimizing the tax burden of the estate is one of the central tasks entrusted to the professional. Moreover, such a result comports with EPTL 11-3.2 (b), which generally permits the personal representative of a decedent to maintain an action for “injury to person or property” after that person’s death.

Despite the holding in this case, strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances. Relaxing privity to permit third parties to commence professional negligence actions against estate planning attorneys would produce undesirable results—uncertainty and limitless liability. These concerns, however, are not present in the case of an estate planning malpractice action commenced by the estate’s personal representative.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint denied.

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

Order reversed, etc.

      . Now only a handful of jurisdictions apply strict privity to malpractice actions commenced by beneficiaries against estate planning attorneys (see Robinson v Benton, 842 So 2d 631, 637 [Ala 2002]; Nevin v Union Trust Co., 726 A2d 694, 701 [Me 1999]; Noble v Bruce, 349 Md 730, 752, 709 A2d 1264, 1275 [1998]; Simon v Zipperstein, 32 Ohio St 3d 74, 512 NE2d 636 [1987]; Lilyhorn v Dier, 214 Neb 728, 335 NW2d 554 [1983]). Numerous jurisdictions have either relaxed the principle of privity or have granted standing to beneficiaries or estates (see Stanley L. & Carolyn M. Watkins Trust v Lacosta, 321 Mont 432, 438, 92 P3d 620, 625-626 [2004] [an estate has standing to bring a legal malpractice action]; Blair v Ing, 95 Haw 247, 259, 21 P3d 452, 464 [2001] [nonclient may bring a legal malpractice suit]; Simpson v Calivas, 139 NH 1, 5, 650 A2d 318, 321 [1994] [named beneficiaries have standing to bring claims in negligence against an estate planning attorney]; Espinosa v Sparber, Shenin, Shapo, Rosen & Heilbronner, 612 So 2d 1378, 1380 [Fla 1993] [estate stands in the shoes of the testator and satisfies the privity requirement]; Schreiner n Scoville, 410 NW2d 679, 681 [Iowa 1987] [intended beneficiaries may maintain a malpractice action against the decedent’s attorney despite the absence of privity]). The Schreiner court cited to numerous jurisdictions that had a similar rule in place (see id. at 681-682). Texas treats the malpractice claims brought by beneficiaries and personal representatives of decedent’s estates differently (see Barcelo v Elliott, 923 SW2d 575, 579 [Tex 1996] [non-client beneficiaries cannot maintain malpractice suits against estate planning attorneys because they lack privity]; cf. Belt v Oppenheimer, Blend, Harrison & Tate, Inc., 192 SW3d 780, 784-786 [Tex 2006] [departed from the Barcelo rule in suits brought by the personal representative of the decedent’s estate and held that privity existed between the parties]).

      . “No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent” (EPTL 11-3.2 [b]).


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

text:
    [937 NE2d 524, 910 NYS2d 767]
    The People of the State of New York, Respondent, v Donald McKinnon, Appellant.
    Argued September 16, 2010;
    decided October 14, 2010

      POINTS OF COUNSEL

      Hogan Lovells US LLP, New York City (Nathaniel S. Boyer of counsel), and Benjamin N. Cardozo School of Law, Criminal Appeals Clinic (Stanley Neustadter and Jeremy Gutman of counsel), for appellant.
    I. The evidence of “serious and permanent disfigurement” was insufficient to sustain a conviction for first degree assault. (People v McLaughlin, 8 AD3d 146; People v Schulz, 4 NY3d 521; Jackson v Virginia, 443 US 307; People v Calabria, 3 NY3d 80; People v Jackson, 65 NY2d 265; People v Bailey, 13 NY3d 67; People v Danielson, 9 NY3d 342; People v Damiano, 87 NY2d 477; People v Carroll, 95 NY2d 375; People v Wong, 81 NY2d 600.) II. The evidence of “specific intent to achieve the mayhem result” was insufficient to sustain a conviction for first degree assault. (People v McLaughlin, 8 AD3d 146; People v Tran, 188 Misc 2d 717, 308 AD2d 497; People v Truesdale, 186 AD2d 496; Sandstrom v Montana, 442 US 510; People v Steinberg, 79 NY2d 673; Matter of Sean T., 224 AD2d 341; People v Cornish, 211 AD2d 639; People v Danielson, 9 NY3d 342; People v Damiano, 87 NY2d 477.) III. Imposition of consecutive sentences was unauthorized because the commission of attempted kidnapping was a “material element” of felony assault. (People v Day, 73 NY2d 208; People v Laverpool, 267 AD2d 93; People v Ahedo, 229 AD2d 588; People v Medina, 152 AD2d 602; People v Smiley, 121 AD2d 274.)

      Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead, Joseph N. Ferdenzi and Nancy J. Killian of counsel), for respondent.
    I. Defendant’s challenge to the legal sufficiency of the evidence is unpreserved and, in any event, meritless. (People v Gray, 86 NY2d 10; People v Lane, 7 NY3d 888; People v Hines, 97 NY2d 56; People v Carncross, 14 NY3d 319; People v Tarsia, 50 NY2d 1; People v Padro, 75 NY2d 820; People v Iannelli, 69 NY2d 684; People v Mateo, 2 NY3d 383; People v Bleakley, 69 NY2d 490; People v Marin, 65 NY2d 741.) II. If this Court finds that the evidence was legally insufficient to sustain defendant’s conviction for assault in the first degree, this Court cannot reduce defendant’s first degree assault conviction to second degree felony assault since it is not a lesser included offense of first degree assault. The proper remedy would be to remand the case for a new trial on the remaining assault counts in the indictment since those counts were never considered by the jury in its deliberations. (People v Glover, 57 NY2d 61; People v Van Norstrand, 85 NY2d 131; People v Scarborough, 49 NY2d 364; People v Martin, 59 NY2d 704; People v Green, 56 NY2d 427; People v Charles, 78 NY2d 1044; People v Green, 96 NY2d 195; People v Salcedo, 92 NY2d 1019; People v Ramirez, 89 NY2d 444; People v Laureano, 87 NY2d 640.)
   OPINION OF THE COURT

Smith, J.

We hold that the evidence was insufficient to support defendant’s conviction for first degree assault, because it did not show that the victim of the assault was “seriously” disfigured.

I

The victim was an inspector for the New York City Department of Health and Mental Hygiene. On the day in question, she went to inspect a summer camp at a Bronx storefront church. When she arrived, the camp was not yet open, but defendant, who lived in the building, let her in and began to chat with her. A few minutes later, defendant put an arm around the victim’s neck and choked her. She lost consciousness briefly. When she revived, defendant again choked her with one arm, while holding a knife in his other hand; he tried to drag her into a hallway. Defendant put the knife down on a stool, and the victim grabbed it and began to stab him over her shoulder. Defendant responded by biting the victim twice on the inner forearm, leaving marks that we describe in detail below. The victim escaped into the street, and defendant ran away, taking the victim’s cell phone with him. He was arrested later that day.

Defendant was charged with various crimes in a 12-count indictment. Our main concern is count 5, charging first degree assault in that defendant “[w]ith intent to disfigure another person seriously and permanently . . . caused such injury” (see Penal Law § 120.10 [2]). Defendant was also indicted on two counts of second degree assault, alleging that he caused physical injury “[i]n the course of and in furtherance of the commission or attempted commission of a felony ... or immediate flight therefrom” (count 7; see Penal Law § 120.05 [6]) and that he intentionally caused “serious physical injury” (count 10; see Penal Law § 120.05 [1]). All three assault counts, and a lesser included charge, were submitted to the jury, but the jury was instructed not to consider the lower-level assault charges if it convicted defendant of first degree assault.

Defendant was convicted of attempted kidnapping, criminal possession of stolen property and assault in the first degree. The Appellate Division affirmed (63 AD3d 426 [2009]), and a Judge of this Court granted leave to appeal (13 NY3d 747 [2009]). Defendant challenges only his first degree assault conviction in this Court, and we now reverse the Appellate Division’s order insofar as it is appealed from.

II

Under Penal Law § 120.10 (2), a person is guilty of assault in the first degree when: “With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person.”

The decisive issue in this case is whether the evidence was sufficient to support a finding, beyond reasonable doubt, that the victim was disfigured “seriously.” We do not reach the question of whether she was disfigured “permanently,” or whether defendant intended serious and permanent disfigurement.

Neither “disfigure” nor “disfigure seriously” is defined in the Penal Law, and we have never addressed the meaning of those terms as they are used in that statute. But in Fleming v Graham (10 NY3d 296 [2008]), we considered the meaning of “severe facial disfigurement” as used in Workers’ Compensation Law §11. There, we approved the following definition of “disfigurement”: “that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner” (id. at 301, quoting Pilato v Nigel Enters., Inc., 48 AD3d 1133, 1135-1136 [4th Dept 2008]). In explaining when a disfigurement is “severe,” we acknowledged that “no conceivable standard” could perfectly identify all cases, but said: “A disfigurement is severe if a reasonable person viewing the plaintiffs face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly” (id.).

Fleming’s definition of “disfigurement” seems no less apt in the context of the Penal Law: a person is disfigured when her natural beauty, symmetry or appearance is detrimentally altered—i.e., when she is rendered less attractive. To say when she is “seriously” disfigured is more difficult. An injury can be “serious” without being “severe,” and thus a serious disfigurement need not meet the stringent Fleming test—it need not be “abhorrently distressing, highly objectionable, shocking or extremely unsightly” to a reasonable person. But “to disfigure . . . seriously” must be to inflict some harm substantially greater than the minimum required for “disfigurement.” Apart from disfigurement, the conduct that warrants a first degree assault conviction under section 120.10 (2) is “to destroy, amputate or disable permanently a member or organ of [the] body.” It is fair to infer that the words “to disfigure . . . seriously and permanently” were intended to describe an injury of comparable importance.

We conclude that serious disfigurement may be defined with a less strongly-worded version of Fleming’s definition of “severe” disfigurement. A person is “seriously” disfigured when a reasonable observer would find her altered appearance distressing or objectionable. The standard is an objective one, but we do not imply that the only relevant factor is the nature of the injury; the injury must be viewed in context, considering its location on the body and any relevant aspects of the victim’s overall physical appearance. To apply the standard to this case, we examine what the evidence shows about the marks that defendant created by biting the victim’s inner forearm.

The record contains a picture of the bite marks, taken on the day of the crime. It shows two ovals with reddish discoloration, one located at and above the midpoint between the wrist and the elbow, the other closer to, but still several inches above, the wrist. According to hospital records, one bite mark measured 3.5 by 3 centimeters, the other 3 by 3 centimeters. Police officers who saw the victim’s injuries on the day she suffered them described them as “severe” and “deep.” Hospital records show that the victim’s flesh was torn but that there was no “exudation” (oozing of fluid from blood vessels). The wounds did not require any stitches. The victim was told to follow up with a plastic surgeon for “optimal” cosmetic results, but there is no evidence that she did so.

There is no later photograph of the wounds, and the record as to what they looked like after they had time to heal is not precise. The victim displayed her arm to the jury at trial, but there is no contemporaneous description of what the jury saw. Later in the trial, both counsel described the wounds briefly: the prosecutor referred to “two large brown bite wounds,” the defense lawyer to “scars, little black and blues right now.”

This limited record is not sufficient to support a finding of serious disfigurement. It shows no more than that the victim had two scars of moderate size on her inner forearm. This is certainly a disfigurement, but no basis appears in the record for finding it a serious one, as we have defined the term. The mere existence of such scars, considering their location, would not make the victim’s appearance distressing or objectionable to a reasonable person observing her. The case might be different if there were something unusually disturbing about the scars, but if there was the prosecution failed to make a record of it, in the form of either a photograph or a detailed description. We decline the prosecution’s invitation to infer, in effect, that whatever the jury saw must have supported its verdict; a court reviewing the sufficiency of the evidence cannot rely on facts of which no record is made. A contemporaneous photograph or description is not necessary in every case where a victim’s wound is shown to a jury—but it is necessary where, as here, there is no other evidence in the record supporting an inference that what the jury saw amounted to serious disfigurement.

We do not minimize the injury done to the victim by defendant’s vicious assault. Perhaps no disfigurement is ever trivial; certainly this victim’s is not. And no doubt more important is the way in which her wounds were inflicted—in a horrifying experience that might well leave serious and permanent emotional scars. Scars of that kind, however, cannot support a conviction for first degree assault as the statute is written, and we must therefore reverse defendant’s conviction of that crime and order count 5 of the indictment dismissed.

Count 10, alleging second degree assault based on “serious physical injury,” must also be dismissed, because without a “serious . . . disfigurement” there is no evidence in this record of “serious physical injury” as the Penal Law defines it (see Penal Law § 10.00 [10]). Defendant may be retried, however, on count 7, alleging that he committed second degree assault by causing physical injury in the course of and in furtherance of a felony or immediate flight therefrom.

Accordingly, the order of the Appellate Division, to the extent appealed from, should be reversed and the case remitted to Supreme Court for further proceedings consistent with this opinion.

Pigott, J. (dissenting).

I respectfully dissent and would affirm the order of the Appellate Division. The majority states that it will not infer “that whatever the jury saw must have supported its verdict” because when conducting a review of the sufficiency of the evidence, this Court “cannot rely on facts of which no record is made” (majority op at 316). But that only underscores the critical flaw in the majority’s holding, namely, that it is the burden of defendant—the objecting party—and not the People, to develop an adequate record for appellate review (see People v Johnson, 205 AD2d 309 [1st Dept 1994], lv denied 84 NY2d 827 [1994], citing People u Olivo, 52 NY2d 309, 320 [1981]).

Here, defense counsel failed to make an adequate record, as was his burden, that the People’s evidence as to the count of assault in the first degree was legally insufficient. He could have easily demanded that a contemporaneous description of the victim’s arm be placed on the record, or asked that a photograph depicting the victim’s arm on the day of the trial be admitted in evidence. He did neither. The record reflects that the jury was shown color photographs of the victim’s arm, which were taken on the day of the attack, and that the victim displayed her arm to the jury at trial 20 months later. This, in my view, was sufficient to support the jury’s factual determination that the scars fell within the parameters of the assault in the first degree statute under which defendant was convicted as well as the court’s ruling that the evidence was sufficient to sustain that charge (see People v Coon, 34 AD3d 869, 870-871 [3d Dept 2006], lv denied 10 NY3d 763 [2008] [rejecting defendant’s claim of insufficiency of proof of element of serious physical injury, deferring to County Court’s assessment because it heard the testimony concerning the cuts and also had the opportunity to observe the resultant scars]; People v Irwin, 5 AD3d 1122, 1123 [4th Dept 2004], lv denied 3 NY3d 642 [2004] [victim’s wounds required surgery and, although she did not testify, photographs depicting her sutured wounds to the arm and hand were admitted in evidence and jury could have reasonably inferred that the wounds resulted in permanent scars]). The majority’s conclusion, in my view, is nothing more than a factual determination disguised as a sufficiency argument that this Court lacks the authority to make.

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

Order, insofar as appealed from, reversed and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein.