author: Ciparick, J.

text:
    [968 NE2d 983, 945 NYS2d 629]
    The People of the State of New York, Respondent, v Leroy Williams, Appellant.
    Argued March 22, 2012;
    decided April 26, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Katharine Skolnick and Robert S. Dean of counsel), for appellant.
    Because the plain language of CPL 530.13 (4) specifically refers to the prison term’s expiration date as the relevant one in setting the order of protection’s end-date, the court erred in refusing to modify the order of protection to accord with the statute’s express terms. (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; People v Paulin, 17 NY3d 238; Tompkins v Hunter, 149 NY 117; Cahen v Boyland, 1 NY2d 8; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; People v Smith, 79 NY2d 309; Sega v State of New York, 60 NY2d 183.)

      Robert T. Johnson, District Attorney, Bronx (Justin J. Braun, Joseph N. Ferdenzi and Karen Swiger of counsel), for respondent.
    Given that defendant’s “determinate sentence also includes, as a part thereof, an additional period of post-release supervision” (Penal Law former § 70.45 [1]), the Appellate Division correctly held that the running of the final order of protection begins after defendant’s postrelease supervision has expired. (People v Crowley, 34 AD3d 866, 7 NY3d 924; People v Goodband, 291 AD2d 584; People v Andrickson, 7 AD3d 725; People v Lamagna, 30 AD3d 1052, 7 NY3d 814; People v Victor, 20 AD3d 927, 5 NY3d 833; People v Grice, 300 AD2d 1005, 99 NY2d 654; People v Harris, 285 AD2d 980; People v Catu, 4 NY3d 242; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; Ruffins v Department of Correctional Servs., 701 F Supp 2d 385.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, we consider whether “a determinate sentence of imprisonment actually imposed” (former CPL 530.13 [4]) includes the mandatory period of postrelease supervision (PRS) for purposes of calculating the duration of an order of protection issued at sentencing. We hold that it does.

On August 29, 2003, a Bronx County grand jury charged defendant with one count of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), one count of assault in the first degree (Penal Law § 120.10 [1]) and one count of assault in the second degree (Penal Law § 120.05 [1]) for allegedly stabbing his fiancée in the back and the neck. On May 3, 2006, in full satisfaction of the indictment, defendant pleaded guilty to one count of first-degree assault, a violent felony offense. At the initial sentencing proceeding, Supreme Court imposed a 13-year term of imprisonment. As part of the sentence, the court also ordered that “there will be a full Order of Protection in effect, which will run for three years from the date that [defendant is] released—from the date of the maximum time of incarceration.” The order of protection reflects an expiration date of May 22, 2022.

Supreme Court did not mention PRS during sentencing, although the court’s commitment sheet indicated a three-year PRS term. On direct appeal, the Appellate Division modified the judgment of conviction and sentence by vacating the three-year term of PRS since it was not part of the “oral pronouncement of sentence” and remanding the case for the proper imposition of PRS, and, as so modified, affirmed (People v Williams, 44 AD3d 335, 335 [1st Dept 2007]).

Defendant appeared in court for resentencing on May 28, 2008. At that time, Supreme Court orally sentenced defendant to a three-year term of PRS. Prior to this proceeding, however, defendant had moved to amend the order of protection issued at the original sentencing. Defendant argued that the order’s May 22, 2022 expiration date did not take into account the approximately three years of jail time credit that he had accrued prior to his original sentence. Defendant reasoned that since the Department of Correctional Services had calculated the maximum expiration date of his determinate term of imprisonment as August 23, 2016, the order of protection should expire three years later on August 23, 2019. In opposing defendant’s application, the People did not quarrel with defendant’s calculations for jail time credit, but countered that the three-year period of PRS Supreme Court had intended to impose at the original sentencing extended the duration of the order of protection into 2022. Supreme Court agreed with the People and denied defendant’s motion. The Appellate Division unanimously affirmed the judgment of resentencing (see People v Williams, 84 AD3d 684, 685 [1st Dept 2011]). A Judge of this Court granted defendant leave to appeal (17 NY3d 810 [2011]) and we now affirm.

The parties agree that former CPL 530.13 (4), in effect at the time defendant pleaded guilty, is controlling here. That statute, as relevant to this appeal, provided that the duration of an order of protection issued at sentencing “in the case of a felony conviction, shall not exceed the greater of: (i) five years from the date of such conviction, or (ii) three years from the date of the expiration of the maximum term of ... a determinate sentence of imprisonment actually imposed” (emphasis added). Defendant does not dispute that extending the order of protection for three years following the maximum expiration date of his determinate sentence of imprisonment yields the greater of the two duration periods listed in the statute. He simply maintains that the term of PRS should be excluded from this calculation because it is not part of the “determinate sentence of imprisonment actually imposed.” We disagree.

Of course, “[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used” (People v Finnegan, 85 NY2d 53, 58 [1995] [internal quotation marks and brackets omitted]; see also Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). Applying this rule here, we begin by observing that when the Legislature enacted CPL 530.13 (4), PRS was not yet a component of a determinate sentence. This changed, however, when the Legislature amended the Penal Law and introduced PRS to the statutory scheme in 1998 (see L 1998, ch 1, as amended). Specifically, the Legislature enacted Penal Law § 70.45 (1), which then provided that “[e]ach determinate sentence also includes, as a part thereof, an additional period of [PRS].” Moreover, then Penal Law § 70.00 (6) defined “determinate sentence of imprisonment” to “include, as a part thereof, a period of [PRS] in accordance with section 70.45.”

Despite these revisions to the Penal Law, defendant emphasizes that there was no corresponding amendment to former CPL 530.13 (4) referencing PRS. Defendant interprets the Legislature’s inaction in this regard to mean that the Legislature did not intend for PRS to be part of a defendant’s “determinate sentence of imprisonment.” Although defendant’s reading of former CPL 530.13 (4) by itself is not unreasonable, we prefer to harmonize the statutes (see McKinney’s Cons Laws of NY, Book 1, Statutes § 98). The language of former Penal Law § 70.45 (1) and § 70.00 (6) is clear and unambiguous: a “determinate sentence of imprisonment” necessarily includes PRS (see People v Catu, 4 NY3d 242, 244 [2005]). If the Legislature intended PRS to be wholly distinct from a defendant’s determinate sentence, it would not have specified in former section 70.45 of the Penal Law that a “determinate sentence” encompassed PRS “as a part thereof.” Nor would the Legislature have described a “determinate sentence of imprisonment” to “include, as a part thereof, a period of [PRS]” in former section 70.00 (6).

Furthermore, inclusion of PRS in calculating the maximum expiration date of a determinate sentence of imprisonment is appropriate for another reason. A defendant sentenced to a determinate sentence of imprisonment may be conditionally released for “good behavior” after serving at least six-sevenths of the underlying term of incarceration (see Penal Law § 70.30 [4] [a]; § 70.40 [1] [b]; Correction Law § 803 [1] [c]). Such a defendant who is conditionally released immediately commences serving the imposed term of PRS and the remaining term of incarceration is “held in abeyance” during this period (Penal Law § 70.45 [5] [a]). A defendant who violates the conditions of PRS may be subject to additional confinement in prison. If this occurs, this period of reincarceration is credited toward the defendant’s remaining unserved term of imprisonment (id.; Penal Law § 70.45 [5] [d]). Thus, in order to calculate a defendant’s maximum expiration date of his determinate sentence of imprisonment at the time of sentencing, a court should include the mandatory period of PRS to account for the possibility that a defendant’s term of incarceration may be “held in abeyance” (see People v Goodband, 291 AD2d 584, 586 [3d Dept 2002]).

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

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

Order affirmed.

      . The current version of CPL 530.13 (4) affords even greater protection to victims. It provides that the duration of an order of protection “in the case of a felony conviction, shall not exceed the greater of: (i) eight years from the date of such sentencing, or (ii) eight years from the date of the expiration of the maximum term . . . of a determinate sentence of imprisonment actually imposed.”

      . The Legislature has since amended the language of Penal Law § 70.45 (1). It presently provides that, “[w]hen a court imposes a determinate sentence it shall in each case state not only the term of imprisonment, but also an additional period of [PRS].”


source: Caselaw Access Project

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

license: Public Domain

text:
    [968 NE2d 967, 945 NYS2d 613]
    In the Matter of Albany Law School et al., Respondents-Appellants, v New York State Office of Mental Retardation and Developmental Disabilities et al., Appellants-Respondents.
    Argued March 19, 2012;
    decided April 26, 2012

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, Albany (Victor Paladino, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for appellants-respondents.
    I. The Mental Hygiene Law does not grant petitioners unfettered access to clinical records. (Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149; Majewski v Broadalbin-Perth Cent. School Dist. 91 NY2d 577; Riley v County of Broome, 95 NY2d 455.) II. “Actively involved family members” are “legal representatives” from whom the State may require petitioners to seek consent before accessing patient records. (Office of Protection & Advocacy for Persons with Disabilities v Armstrong, 266 F Supp 2d 303; Alabama Disabilities Advocacy Program v J.S. Tarwater Dev. Ctr., 894 F Supp 424; State of Conn. Off. of Protection & Advocacy for Persons with Disabilities v Hartford Bd. of Educ., 355 F Supp 2d 649; Washington State Dept. of Social & Health Servs. v Guardianship Estate of Keffeler, 537 US 371.)

      Disability Advocates, Inc., Albany (Jennifer J. Monthie, Timothy A. Clune and Cliff Zucker of counsel), Patterson Belknap Webb & Tyler LLP, New York City (Christopher Jackson of counsel), and Albany Law School Civil Rights & Disabilities

      Law Clinic, Albany (Bridgit Burke of counsel), for respondents-appellants.
    I. Albany Law School and Disability Advocates, Inc. are entitled to the requested records pursuant to Mental Hygiene Law § 33.13 (c) (4) and § 45.09 (b). (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Orens v Novello, 99 NY2d 180; Kramer v Phoenix Life Ins. Co., 15 NY3d 539; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Riley v County of Broome, 95 NY2d 455; Crane Neck Assn. v New York City/Long Is. County Servs. Group, 61 NY2d 154; Matter of Green Harbour Homeowners’ Assn. v Town of Lake George Planning Bd., 1 AD3d 744; Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225; Rovello v Orofino Realty Co., 40 NY2d 633; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 94 NY2d 659.) II. The Appellate Division correctly held that “actively involved family members” are not “legal representatives.” (Rovello v Orofino Realty Co., 40 NY2d 633; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 94 NY2d 659; Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254; Office of Protection & Advocacy for Persons with Disabilities v Armstrong, 266 F Supp 2d 303; Alabama Disabilities Advocacy Program v J.S. Tarwater Dev. Ctr., 97 F3d 492; State of Conn. Off. of Protection & Advocacy for Persons with Disabilities v Hartford Bd. of Educ., 355 F Supp 2d 649; Matter of Chaim A.K., 26 Misc 3d 837; Olmstead v L. C., 527 US 581; Crane Neck Assn. v New York City/Long Is. County Servs. Group, 61 NY2d 154; Ramapo Homeowners’ Assn. v New York State Off. of Mental Retardation & Dev. Disabilities, 180 F Supp 2d 519.) III. The courts below erred by striking portions of the petition. (Riesenberger v Sullivan, 1 AD2d 1050; Pomerance v Pomerance, 271 App Div 1027; Giessler v Accurate Brass Co., Inc., 271 App Div 980; Indelli v Lesster, 130 App Div 548; Solomon v La Guardia, 267 App Div 435; Merrick v New York Subways Adv. Co., 14 Misc 2d 456; People v Till, 87 NY2d 835; Disability Advocates, Inc. v Paterson, 598 F Supp 2d 289; T.D. v New York State Off. of Mental Health, 228 AD2d 95; Riley v County of Broome, 95 NY2d 455.)

      Paul Kietzman, Delmar, for NYSARC, Inc., amicus curiae.
    I. Neither the federal statute involved herein, nor any other federal statute of which NYSARC, Inc. is aware, defines any of the terms used in 42 USC § 15043 (a) (2) (I) (i)—“guardian, conservator, or other legal representative.” Such matters have always been dealt with in state law and in state courts. (Matter of Grinker [Rose], 77 NY2d 703.) II. Formal guardianship is viewed both professionally and statutorily as a non-preferred remedy, to be reserved for when there is no other mechanism available to support a person’s own choices. Similarly, neither federal nor state law draw any “bright line” distinction between the authority of formally court-appointed surrogates and involved family members of incapacitated persons. (Matter of Storar, 52 NY2d 363; Matter of MB., 6 NY3d 437.) III. In the event that this Court affirms the holding of the Appellate Division, Third Department, and adopts respondents’ position that involved family members will not be recognized as legal representatives, the certain result is that formal guardianships will be reluctantly pursued, burdening not just the judiciary but the lives, personal autonomy and freedoms of the individuals that appellants are charged with safeguarding. IV As a matter of New York statute and regulation, both the Office for People with Developmental Disabilities and the courts have a regular power of review over decisions of involved family members, who are categorically not persons who only handle financial affairs, attorneys who represent persons with intellectual or other developmental disabilities on singular occasions, or administrators of service providers. (Society for Good Will to Retarded Children, Inc. v Cuomo, 902 F2d 1085.)

      Wilmer Cutler Pickering Hale and Dorr LLP, New York City (Fraser L. Hunter, Jr., David F. Olsky and Edward Sherwin of counsel), for National Disability Rights Network and others, amici curiae.
    I. Congress and the State Legislature intended that protection and advocacy agencies actively investigate facilities serving individuals with developmental disabilities. (Matter of Siwek v Mahoney, 39 NY2d 159; Affronti v Crosson, 95 NY2d 713; Riley v County of Broome, 95 NY2d 455.) II. Protection and advocacy agencies need access to the clinical records of people with developmental disabilities in order to discharge their statutory duties. (Indiana Protection & Advocacy Servs. v Indiana Family & Social Servs. Admin., 603 F3d 365; Alabama Disabilities Advocacy Program v J.S. Tarwater Dev. Ctr., 894 F Supp 424, 97 F3d 492; Robbins v Budke, 739 F Supp 1479.) III. The Office for People with Developmental Disabilities should not be permitted to obstruct protection and advocacy investigations by requiring them to first seek permission from “involved” family members. (Alabama Disabilities Advocacy Program v J.S. Tarwater Dev. Ctr., 97 F3d 492; Pennsylvania Protection & Advocacy, Inc. v Houstoun, 228 F3d 423; Advocacy Ctr. v Stalder, 128 F Supp 2d 358; Oklahoma Disability Law Ctr., Inc. v Dillon Family & Youth Servs., Inc., 879 F Supp 1110; Robbins v Budke, 739 F Supp 1479.)
   OPINION OF THE COURT

Graffeo, J.

Petitioners Albany Law School and Disability Advocates, Inc. provide protection and advocacy services to individuals with developmental disabilities pursuant to contracts with the New York State Commission on Quality of Care and Advocacy for Persons with Disabilities, an agency that oversees New York’s protection and advocacy system. After receiving a complaint regarding the discharge practices of respondent New York State Office of Mental Retardation and Developmental Disabilities— now the Office for People with Developmental Disabilities (OP-WDD)—petitioners requested access to the clinical records of all individuals residing at two OPWDD facilities to investigate whether they were being denied the opportunity to live in less restrictive settings. Relying on Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4), petitioners asserted that they were entitled to unrestricted access to the clinical records.

OPWDD disagreed, taking the position that the two Mental Hygiene Law provisions cited by petitioners incorporate the records access procedures established in the federal Developmental Disabilities Assistance and Bill of Rights Act, which were designed to balance the privacy rights of developmentally disabled persons with the need of protection and advocacy organizations to access residents’ personal information in order to investigate complaints and advocate on behalf of those individuals. In accordance with federal law, OPWDD agreed to provide records pertaining to residents for whom petitioners had obtained authorization, either from the individuals themselves or their legal representatives (which, in OPWDD’s view, included actively-involved family members), and for individuals who were unable to provide authorization and did not have a legal representative.

This case requires us to decide two significant issues that implicate competing interests with regard to the clinical records of developmentally disabled persons. First, whether Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4) provide petitioners with unqualified access to clinical and other records or whether the state statutes embrace the access provisions in federal law. And second, whether actively-involved family members can be deemed legal representatives for purposes of the federal and state access provisions. We conclude that section 45.09 (b) and section 33.13 (c) (4) must be read in accord with federal law and that actively-involved family members can possess sufficient decision-making authority to qualify as legal representatives under the pertinent regime.

L

In 1975, in response to the deplorable conditions revealed at New York’s Willowbrook State School and other state-operated facilities, Congress enacted the Developmental Disabilities Assistance and Bill of Rights Act (the DD Act). The DD Act was designed to encourage states to safeguard the rights of individuals with developmental disabilities by offering federal funds to states with an effective protection and advocacy (P&A) system (see Virginia Office for Protection and Advocacy v Stewart, 563 US —, —, 131 S Ct 1632, 1635-1636 [2011]). To qualify for funding, a state’s P&A system must, among other powers, “have the authority to investigate incidents of abuse and neglect of individuals with developmental disabilities if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred” (42 USC § 15043 [a] [2] [B]). The P&A system must also be able to “pursue legal, administrative, and other appropriate remedies ... to ensure the protection of, and advocacy for, the rights of such individuals” (42 USC § 15043 [a] [2] [A] [i]).

In 1984, Congress amended the DD Act to require states, as a condition to maintaining eligibility for federal funding under the program, to grant their P&A systems access to the records of individuals with developmental disabilities subject to certain requirements (see Pub L 98-527, § 142, 98 US Stat 2662, 2679-2680 [98th Cong, 2d Sess, Oct. 19, 1984], amending 42 USC former § 6042 [a]). The 1984 amendment gave the states until October 1986 to implement these access requirements (see id.). In particular, the DD Act currently describes four sets of circumstances under which a P&A entity must be given access to the clinical and other records of developmentally disabled persons.

First, the P&A organization is entitled to “immediate access,” without the consent of any person, if it “determines there is probable cause to believe that the health or safety of the individual is in serious and immediate jeopardy” (42 USC § 15043 [a] [2] [J] [ii] [I]) or if the individual dies (see 42 USC § 15043 [a] [2] [J] [ii] [II]). In these emergency or death situations, Congress determined that facilities must provide immediate, full record access in order to protect the health and safety of the resident or, in the case of death, to timely commence an investigation.

Second, in nonemergencies, the facility must grant access to the P&A organization if authorization is given by the individual or the individual’s “legal guardian, conservator, or other legal representative” (42 USC § 15043 [a] [2] [I] [i]). Not all developmental^ disabled persons residing in facilities are incompetent to participate in medical and therapy decision-making or decisions relating to training or residential choices. Federal law acknowledges the right of these residents who are consistently involved in the management of their own care to be notified and to authorize or deny access, recognizing the reasonable privacy expectations of these individuals in their personal information and their right to make decisions regarding their own treatment and welfare.

Third, a P&A entity is to be afforded access where (a) the individual is incapable of granting authorization; (b) the individual does not have a legal representative; and (c) the system has received a complaint with regard to the individual’s treatment or, as a result of monitoring activities, there is probable cause to believe that the individual has been abused or neglected (see 42 USC § 15043 [a] [2] [I] [ii]). Clearly, the DD Act recognizes the imperative need of P&A organizations to protect and advocate on behalf of residents who are not capable of providing authorization and lack a legal representative. Even without receiving a complaint, if P&A personnel have probable cause to believe that a resident has been neglected or abused—reflecting the importance of on-site monitoring activities by P&A organizations—they may demand record access to investigate the circumstances and safeguard the resident at risk.

Finally, access is mandated if (a) the individual has a legal representative; (b) the P&A entity has received a complaint with regard to the individual’s treatment or, as a result of monitoring activities, there is probable cause to believe that the individual has been abused or neglected; and (c) the P&A entity has contacted the legal representative and offered assistance but the representative has failed or refused to act on the individual’s behalf (see 42 USC § 15043 [a] [2] [I] [iii]). In non-emergency situations, the records of individuals who lack the ability to consent but who have a legal representative (according to OPWDD, this is fairly common) must therefore be disclosed if the legal representative grants authorization (category two) or if the legal representative fails or refuses to act in response to a complaint or probable cause (category four). Again, if the situation is such that the health or safety of the resident is in “serious” or “immediate jeopardy,” the immediate access provisions of category one would instead apply.

In short, in amending the DD Act, Congress acknowledged the necessity of allowing P&A entities record access in order to fulfill their “watchdog” role. Yet, Congress also considered the right of competent individuals or legal representatives acting on behalf of developmentally disabled persons to participate in the decision to disclose their records—some of which may contain sensitive, personal information. Therefore, federal law established a carefully calibrated system that took into consideration both the privacy interests of developmentally disabled persons and the need for P&A organizations to examine records in order to pursue their statutory functions.

Following the adoption of the DD Act, the New York Legislature created what is now known as the Commission on Quality of Care and Advocacy for Persons with Disabilities (the Commission) to oversee the care, treatment and delivery of services to individuals who are developmentally disabled (L 1977, ch 655; see also Mental Hygiene Law art 45). The Commission is empowered to review the operations of the Department of Mental Hygiene, which includes OPWDD, and to investigate complaints pertaining to the treatment and care of individuals who are patients or residents of any facility providing services to developmentally disabled persons (see Mental Hygiene Law § 45.07; see generally Matter of Reckess v New York State Commn. on Quality of Care for Mentally Disabled, 7 NY3d 555, 560 [2006]). The Legislature vested the Commission with the power to inspect all books and records of mental hygiene facilities “deemed necessary for carrying out the commission’s functions, powers and duties” (Mental Hygiene Law § 45.09 [a]). The Commission is also the agency designated under the DD Act to administer the P&A system to ensure continued federal funding (see Mental Hygiene Law § 45.07 [p]). It administers its P&A responsibilities, in part, through contracts with independent P&A organizations, such as petitioners (see Mental Hygiene Law § 45.07 [i]). Hence, in New York the Commission itself serves as the State’s P&A system while P&A entities like petitioners function as contractors to the system (see generally Disability Advocates, Inc. v New York Coalition for Quality Assisted Living, Inc., 675 F3d 149 [2d Cir 2012]).

Although the Commission has been granted broad access to facility records since its inception (see L 1977, ch 655; see also Mental Hygiene Law § 45.09 [a]), state law did not originally afford P&A organizations that contract with the Commission an independent right to examine the clinical records of developmentally disabled individuals. In response to the 1984 amendments to the DD Act—which conditioned the continued eligibility for federal funding on allowing such entities access to records—the Legislature amended the Mental Hygiene Law in 1986 to address the access rights of these P&A organizations (see L 1986, ch 184).

Specifically, the Legislature added Mental Hygiene Law § 45.09 (b), which provides, in relevant part:

“Pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law, any agency or person within or under contract with the commission which provides protection and advocacy services must be granted access at any and all times to any facility, or part thereof, serving a person with a disability operated or licensed by any office or agency of the state, and to all books, records, and data pertaining to any such facility upon receipt of a complaint by or on behalf of a person with a disability.”

The 1986 legislation simultaneously amended Mental Hygiene Law § 33.13, the provision that secures the confidentiality of clinical records in the possession of OPWDD or the Office of Mental Health absent enumerated exceptions, by adding the following emphasized language to subdivision (c) (4):

“(c) Such information about patients or clients reported to the offices . . . shall not be released by the offices or its facilities to any person or agency outside of the offices except as follows: . . .
“4. to the commission on quality of care for the mentally disabled and any person or agency under contract with the commission which provides protection and advocacy services pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law.”

This remains the current state statutory scheme governing P&A record access.

IL

In 2008, petitioners, as P&A organizations under contract with the Commission, wrote to OPWDD requesting review of the records of more than 200 residents at two facilities operated by OPWDD—the Capital District and Taconic Developmental Disabilities Service Offices. The requests indicated that petitioners had received a “complaint of neglect” pertaining to the discharge policies at the Taconic facility and that, as a result of monitoring activities at the Capital District facility, petitioners were concerned about the timeliness of the transfer of individuals into more integrated placements—clearly an issue within petitioners’ advocacy responsibilities. Petitioners claimed that they were entitled to unrestricted access to the documents pursuant to Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4).

OPWDD rejected petitioners’ contention that they had full access to the clinical records under these circumstances and asserted that section 45.09 (b) and section 33.13 (c) (4) required petitioners to comply with the federal procedures prescribed by the DD Act. Consequently, OPWDD agreed to provide the records of individuals for whom petitioners had obtained authorization and the records of individuals who were incapable of providing authorization and had no legal representative. But OPWDD indicated that access could not be provided for individuals who had legal representatives unless petitioners first notified those legal representatives (most of whom were actively-involved family members rather than formal guardians). In the event those legal representatives gave consent or failed or refused to act, OPWDD represented that petitioners would be entitled to access in accordance with federal procedures. OPWDD further advised petitioners that it would provide the contact information for these legal representatives to allow petitioners to seek their consent. Petitioners declined to obtain the authorizations or contact the individuals’ representatives, reiterating their view that state law required access without notice or consent considerations.

As a result of this conflict over the proper procedures governing record access, petitioners brought this combined CPLR article 78 proceeding and action pursuant to 42 USC § 1983 against OPWDD and its Commissioner (collectively, OPWDD) to enforce their right of access to all clinical records at the Taconic and Capital District facilities. According to the petition/complaint, there was evidence that OPWDD was neglecting the care of individuals residing at the two facilities both through “the denial of rights to live in less restrictive settings and the failure to provide necessary treatment that would prepare and enable individuals with disabilities to live in such settings.” Petitioners asked the court to issue an order compelling OPWDD to provide prompt access to the residents’ clinical records pursuant to Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4). Alternatively, they requested an order obligating OP-WDD to provide the records of individuals without a legal representative under 42 USC § 15043 (a) (2) (I) (ii), and they maintained that actively-involved family members were not legal representatives for purposes of record access.

OPWDD moved to dismiss under CPLR 3211 for failure to state a cause of action. In the alternative, OPWDD requested that the court strike certain paragraphs of the petition/complaint as prejudicial and irrelevant under CPLR 3024 (b). In support of its dismissal motion, OPWDD included an affidavit from the Commission’s chief operating officer explaining the Commission’s view that the access rights of P&A organizations under contract with it, such as petitioners, were not coextensive with the Commission’s expansive authority established by Mental Hygiene Law § 45.09 (a). Instead, the Commission concurred with OPWDD’s view that section 45.09 (b) and section 33.13 (c) (4) incorporated the federal criteria set forth in the DD Act. OPWDD also submitted affidavits from the executive director of Parent to Parent of NYS and the president of the Self-Advocacy Association of New York State, two not-for-profit advocacy organizations, opposing petitioners’ assertion of blanket authority and emphasizing the privacy interests developmentally disabled persons and their families have in their sensitive medical records.

Supreme Court granted OPWDD’s motion in part. The court agreed with OPWDD that Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4) adopted the federal access procedures and therefore did not grant petitioners access to the records at issue absent compliance with the federal requirements. The court also determined that legal representatives, for purposes of the federal regime, could include actively-involved family members. Finally, the court struck a number of paragraphs from the petition/complaint pursuant to CPLR 3024 (b).

The Appellate Division modified (81 AD3d 145 [3d Dept 2011]). The Court concurred with Supreme Court’s conclusion that Mental Hygiene Law § 33.13 (c) (4) did not afford petitioners unrestricted access to clinical records but, rather, required petitioners to comply with the DD Act’s requirements. Yet the Court reached a different conclusion regarding Mental Hygiene Law § 45.09 (b), holding that it authorized access to petitioners upon receipt of a complaint because that statute was not structured to incorporate the federal access requirements. The Court further disagreed with Supreme Court’s determination that actively-involved family members can be legal representatives for purposes of the federal notice provisions, reasoning that they lack the authority to make “all decisions” on behalf of their developmentally disabled relatives (81 AD3d at 152). Finally, the Court ruled that Supreme Court did not err in striking out portions of the petition/complaint.

The Appellate Division granted OPWDD and petitioners leave to appeal on a certified question.

IIL

On this appeal, OPWDD argues that the Mental Hygiene Law does not grant P&A organizations under contract with the Commission unrestricted access to clinical records. Rather, OPWDD contends that Mental Hygiene Law § 45.09 (b) authorizes petitioners to review patient records only in accordance with the four categories of access procedures enumerated in the DD Act. OPWDD further asserts that Mental Hygiene Law § 45.09 (b) cannot reasonably be interpreted inconsistently with Mental Hygiene Law § 33.13 (c) (4) since both provisions were enacted jointly in the same legislative proposal. In OPWDD’s view, neither section 45.09 (b) nor section 33.13 (c) (4) grants petitioners access greater than what is permitted under federal law. Petitioners agree that Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4) should be construed in pari materia, but counter that neither provision ties their access rights to federal law. They read the two statutes—as does the dissent—as allowing them full access to the clinical records they seek, claiming that such access is integral to their mission. Amici organizations support both parties in this controversy.

In matters of statutory interpretation, our primary consideration is to discern and give effect to the Legislature’s intention (see Yatauro v Mangano, 17 NY3d 420, 426 [2011]). As we have repeatedly stated, the text of a provision “is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning” (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). Additionally, we should inquire “into the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history” (Nostrom v A.W. Chesterton Co., 15 NY3d 502, 507 [2010] [internal quotation marks and citation omitted]). Finally, it is well settled that a statute must be construed as a whole and that its various sections must be considered with reference to one another (see Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105, 115 [2007]).

At the heart of this appeal is the proper scope of Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4). In relevant part, section 45.09 (b) provides:

“Pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law, any agency . . . under contract with the commission which provides protection and advocacy services must be granted access . . . to all . . . records . . . pertaining to any such facility upon receipt of a complaint” (emphasis added).

Similarly, section 33.13 (c) (4) permits facilities licensed or operated by OPWDD or the Office of Mental Health to release clinical records to any “agency under contract with the commission which provides protection and advocacy services pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law” (emphasis added). The reference to federal law appears in both statutes, but the placement of the reference differs.

As an initial matter, we disagree with the approach taken by the Appellate Division, which applied different interpretations to the two provisions. Statutes that relate to the same subject are in pari materia and should “be construed together unless a contrary intent is clearly expressed by the Legislature” (Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791, 793 [1986]). Indeed, in pari materia principles “apply with peculiar force to statutes passed at the same legislative session” (McKinney’s Cons Laws of NY, Book 1, Statutes § 221 [a], Comment, at 375). Here, the two statutory amendments relate to the same subject matter, contain identical language and were adopted together. We therefore concur with the parties that the statutes should be read consistently with one another to effect the same legislative intent. We do not find the placement of the “pursuant to” clause at the beginning of the sentence in section 45.09 (b) but at the end of the sentence in section 33.13 (c) (4) a sufficient basis to create divergent meanings, particularly where the two provisions were amended by the very same enactment. The more difficult question before us is ascertaining whether the statutes grant P&A organizations broad access rights uninhibited by the federal criteria, as petitioners assert, or implement the access procedures outlined in the DD Act, as OP-WDD proposes.

Although the issue is admittedly close, we believe that OPWDD’s interpretation of the statutes is more persuasive as a matter of both text and context. In contrast to Mental Hygiene Law § 45.09 (a), which accords the Commission broad access to records as long as they relate to the Commission’s “functions, powers and duties,” Mental Hygiene Law § 45.09 (b) expressly ties the access rights of P&A organizations to the Commission’s administration of the P&A system “as provided for by federal law.” Likewise, although Mental Hygiene Law § 33.13 (c) (4) contemplates the release of records to the Commission itself without any limiting language, the amended language that incorporates P&A organizations includes the identical reference to federal law. Hence, contrary to the view expressed by the dissent, the most plausible reading of the two statutes is that P&A organizations are entitled to review records in compliance with federal law. As discussed, the DD Act recognizes the critical advocacy and investigative functions of P&A organizations by authorizing “immediate access” without permission in emergency situations. But the DD Act also strove to balance the purpose and objectives of P&A organizations with the privacy interests of individuals with developmental disabilities by requiring P&A organizations, in situations not involving an emergency, to notify and obtain the consent of those individuals or, if they are not competent to consent, their legal representatives, unless there is no legal representative or the representative fails to act on their behalf, in which case access will be granted. There is no indication that the New York Legislature intended to deviate from the federal scheme.

The context underlying the enactment of Mental Hygiene Law § 45.09 (b) and amendment to Mental Hygiene Law § 33.13 (c) (4) by the Legislature in 1986 supports this statutory interpretation (see Consedine v Portville Cent. School Dist., 12 NY3d 286, 290 [2009] [“Pertinent also are the history of the times, the circumstances surrounding the statute’s passage, and . . . attempted amendments” (internal quotation marks and citation omitted)]). When Congress amended the DD Act in 1984 to require states to grant their P&A systems access to records under specified circumstances in order to maintain eligibility for funding under the federal program, it gave states until 1986 to comply (see Pub L 98-527, § 142, 98 US Stat 2662, 2679-2680 [98th Cong, 2d Sess, Oct. 19, 1984]). In 1985, Governor Mario Cuomo executed an assurance to the federal Department of Health and Human Services that New York would enact amendments to the Mental Hygiene Law to “ensure access by the Protection and Advocacy Program contract agencies consistent with the requirements of Public Law 98-527” (Assurances by the Governor of the State of New York for the Protection of Rights and Advocacy for Persons with Developmental Disabilities, Mar. 12, 1985, Bill Jacket, L 1986, ch 184, at 5). Senator Padavan’s memorandum in support of the 1986 legislation affirmed that “[t]he purpose of this bill is to ensure compliance by New York State with . . . (Public Law 98-527) governing the operation of the Protection and Advocacy Program for persons with developmental disabilities which is administered by the Commission” (Mem of Senator Frank Padavan, Bill Jacket, L 1986, ch 184, at 9, 1986 NY Legis Ann, at 126). He further observed that the amendment was necessary to avoid “jeopardizing continued federal funding to the Commission” (id.). Hence, it is clear that the impetus for the 1986 legislation was to ensure New York’s compliance with the DD Act in order to maintain eligibility for federal funding. Notably absent from the legislative history is any pronouncement that New York was adopting standards that were broader than required by federal law or conferring authority on P&A organizations that was coterminous with that enjoyed by the Commission itself.

In sum, we conclude that the Mental Hygiene Law implements federal law such that petitioners must follow the safeguards outlined in the DD Act. If this is not the desire of the Legislature, it can certainly amend the statutes to provide otherwise. We now turn to the question of whether petitioners must notify actively-involved family members of individuals with disabilities who lack the capacity to consent in order to comply with the federal directives.

IV

OPWDD next argues that the Appellate Division erred in holding that actively-involved family members cannot be considered legal representatives for notice and authorization purposes under the DD Act. It contends that New York law grants family members of individuals with developmental disabilities significant powers to make personal decisions on their behalf when they lack the ability to do so for themselves. OP-WDD further submits that it has in place an appointment and review system with regard to these family members. Petitioners respond that the Appellate Division correctly determined that family members who have not been formally appointed as guardians do not hold the status of legal representatives and, therefore, P&A organizations need not give them notice or seek their consent under the DD Act access procedures.

The federal regulations implementing the DD Act define “[l]egal [gjuardian, conservator and legal representative” as

“an individual appointed and regularly reviewed by a State court or agency empowered under State law to appoint and review such officers and having authority to make all decisions on behalf of individuals with developmental disabilities. It does not include persons acting only as a representative payee, person acting only to handle financial payments, attorneys or other persons acting on behalf of an individual with developmental disabilities only in individual legal matters, or officials responsible for the provision of treatment or habilitation services to an individual with developmental disabilities or their designees” (45 CFR 1386.19).

The regulation prescribes two requirements for individuals to qualify as legal representatives: (1) they must have sufficient decision-making authority and (2) they must be appointed and regularly reviewed by a court or state agency. Moreover, the regulation looks to state law for both elements. We address each in turn.

A.

“Actively involved” or “qualified” family members enjoy a recognized status and are able to make a number of critical decisions on behalf of individuals with developmental disabilities under New York law. For example, actively-involved family members may give informed consent for major medical procedures on behalf of individuals residing in OPWDD facilities who lack the “capacity to understand appropriate disclosures regarding proposed professional medical treatment” (14 NYCRR 633.11 [a] [1] [iii] [b]). Similarly, they may approve service plans involving an “untoward risk to an individual’s protection or rights” (14 NYCRR 681.13) and object to OPWDD -related services on behalf of such individuals (see 14 NYCRR 633.12). Most notably, New York law now permits actively-involved family members to make end-of-life decisions on behalf of developmentally disabled individuals without capacity, including the decision to “withhold or withdraw life-sustaining treatment” (SCPA 1750-b [1] [a]; see also 14 NYCRR 633.10 [a] [7] [iv]; Matter of M.B., 6 NY3d 437, 441 [2006] [describing the process applicable to the cessation of life-sustaining medical treatment for individuals “who never had capacity to make such a decision”]).

New York law further affords family members of individuals with developmental disabilities various notification and document access rights. Under OPWDD’s regulations, family members are entitled to notice of reports of abuse, neglect and injuries (see 14 NYCRR 624.6), and are to receive investigative reports pertaining to such matters (see 14 NYCRR 624.8). The Mental Hygiene Law also grants them the ability both to access and authorize the release of their disabled relative’s clinical records (see Mental Hygiene Law § 33.13 [c] [7]; § 33.16).

These provisions, taken together, amply demonstrate that actively-involved family members enjoy sufficient decision-making authority such that they may be classified as legal representatives within the meaning of 45 CFR 1386.19. We reject petitioners’ assertion that a legal representative must have the ability to make every possible decision. Indeed, such an interpretation would render the entire second sentence of the regulation unnecessary, as it is plain that “representative payee[s],” persons that “handle financial payments” and attorneys who provide representation on “individual legal matters” do not have unqualified decision-making powers. The negative examples cited in the regulation support our conclusion that actively-involved family members qualify under New York law as each of the stated examples involves persons who have only discrete authorization with regard to financial or legal matters. In contrast, actively-involved family members possess the authority to make many of the most important personal decisions affecting the health and well-being of their developmentally disabled relative. As NYSARC, Inc. observes in its amicus brief, it would be peculiar for a parent or other family member who enjoys the ability to withhold or withdraw life-sustaining treatment to lack the much less intrusive right to be consulted before a third party reviews a resident’s personal records.

Under the federal regulation, however, it is not enough that the individual possesses sufficient decision-making authority. There must also be in place an appointment and review mechanism in connection with these legal representatives.

B.

According to OPWDD, the staff at its facilities considers the relationship between a developmentally disabled individual and each actively-involved family member to make a determination as to which relative is best suited to make decisions on behalf of the individual. Under OPWDD’s regulations, an “[ajctively involved adult family member” is defined to mean “[sjomeone 18 years of age or older who is related to a person in a facility and who has demonstrated, in the opinion of the interdisciplinary team, significant and ongoing involvement in the individual’s life, as well as sufficient knowledge of the individual’s needs” (14 NYCRR 681.99 [k]; see also 14 NYCRR 633.99 [ax]). OPWDD represents that, through this process, a family member is “designated” as the legal representative, and that designation is noted in the facility’s records. OPWDD further asserts that the legal representative designation is reviewed and changed as circumstances require.

Petitioners submit that OPWDD’s system is inadequate as a matter of law because there is no statute in place governing these procedures. But we note that OPWDD’s regulatory authority may suffice under 45 CFR 1386.19 (see Matter of Allstate Ins. Co. v Rivera, 12 NY3d 602, 608 [2009] [explaining that agency regulations have “the force of law” (internal quotation marks and citation omitted)]). Nevertheless, given the preanswer procedural posture of this case, we agree with petitioners that a remittal for further proceedings is necessary to examine the nature and adequacy of OPWDD’s process for selecting and reviewing actively-involved family members.

V

On their cross appeal, petitioners contend that the courts below erred in striking certain paragraphs of the petition/complaint pursuant to CPLR 3024 (b), which permits a court “to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” We perceive no abuse of discretion as a matter of law on this issue.

* * *

We stress that our decision does not preclude P&A organizations like petitioners from gaining access to the clinical records of individuals with developmental disabilities. Undoubtedly, petitioners perform critically important services aimed at safeguarding and improving the conditions under which these vulnerable citizens live. But based on the language and structure of the statutes at issue, we hold that New York law parallels federal law, which balances the privacy rights of such individuals with the need of P&A organizations to examine records to further their advocacy mission. Under this regime, petitioners are entitled to immediate access of records without consent in an emergency situation—which they acknowledge is not implicated by the facts of this case. In other scenarios, they may obtain the consent of the individual or his or her legal representative; they are entitled to access where there is no legal representative and the individual lacks capacity to consent; and they are entitled to access where the legal representative takes no action in the face of a complaint or probable cause. Given the role played by actively-involved family members of individuals with developmental disabilities under New York law, we further conclude that it is possible for them to be classified as legal representatives for compliance with federal requirements, but remit the issues relating to OPWDD’s appointment and review process for further development.

Accordingly, the order of the Appellate Division should be modified, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed. The certified question should be answered in the affirmative.

Ciparick, J. (dissenting).

Because I believe that Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4) give the protection and advocacy agencies (P&A agencies) equal access to the clinical records of residents in facilities operated under the auspices of the Office for People with Developmental Disabilities (OP-WDD) and records and data of those same facilities as are available to the Commission on Quality of Care and Advocacy for Persons with Disabilities (the Commission), I respectfully dissent. I further believe that OPWDD’s definition of an “actively involved family member” does not meet the federal requirements for a “legal guardian, conservator and legal representative,” and that access to the clinical records of residents should not be conditioned upon the consent of such family members.

It is uncontroverted that, pursuant to Mental Hygiene Law § 45.09 (a) and § 33.13 (c) (4), the Commission has broad, unrestricted access to the clinical records of residents of OPWDD facilities as well as to the facilities’ own records and data. In order to be eligible for federal funding under the Developmental Disabilities Assistance and Bill of Rights Act pursuant to 42 USC § 15043 and 45 CFR 1386.21, minimal access to these records must be given to P&A agencies. However, the State may also provide P&A agencies, charged with the duty of providing protection and advocacy services pursuant to contracts with the Commission, greater authority than exists under the federal statutes (see 45 CFR 1386.21 [f]). In determining what degree of access the P&A agencies shall enjoy, we must interpret both Mental Hygiene Law provisions.

I agree with the majority’s conclusion that the phrase “as provided for by federal law” as used in both section 45.09 (b) and section 33.13 (c) (4) should be read harmoniously and interpreted in the same manner. However, I disagree with the majority’s conclusion that “as a matter of both text and context” the phrase mandates that the access to records accorded to the P&A agencies is limited to that which is delineated in the federal scheme and is consequently less broad than the access granted to the Commission (majority op at 121-122), I believe that both a plain reading of the statutes (see Matter of Orens v Novello, 99 NY2d 180, 185 [2002]) and the context in which the statutes were enacted demonstrate that the intent of the Legislature was to provide the P&A agencies with access as broad as that provided to the Commission in order to enable them to carry out their protection and advocacy functions.

Turning to the text of the statutes, Mental Hygiene Law § 45.09 (b) provides:

“Pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law, any agency or person within or under contract with the commission which provides protection and advocacy services must be granted access at any and all times to any facility, or part thereof, serving a person with a disability operated or licensed by any office or agency of the state, and to all books, records, and data pertaining to any such facility upon receipt of a complaint by or on behalf of a person with a disability. Information, books, records or data which are confidential as provided by law shall be kept confidential by the person or agency within the protection and advocacy system and any limitations on the release thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the person or agency within the protection and advocacy system” (emphasis added).

While the majority would have the phrase “as provided for by federal law” apply to the entire section, it is noteworthy that the phrase “[p]ursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law” is set off from the rest of the paragraph by a comma. “Common marks of punctuation are used to clarify the writer’s intended meaning and thus form a valuable aid in determining legislative intent” (A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574, 581 [1996]). Therefore, a natural reading of the statute would indicate that the qualifier “as provided for by federal law” refers to the federal authorization of the commission to administer the protection and advocacy system and is not a limitation on the scope of the authority of the P&A agencies to request records. It identifies P&A agencies as those agencies under contract with the Commission providing services to the developmentally disabled and having access to facility records as opposed to contracting agencies that provide other services.

Similarly, Mental Hygiene Law § 33.13 (c) provides:

“Such information about patients or clients reported to the offices, including the identification of patients or clients, clinical records or clinical information tending to identify patients or clients, and records and information concerning persons under consideration for proceedings pursuant to article ten of this chapter, at office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agency outside of the offices except as follows: . . .
“4. to the commission on quality of care for the mentally disabled and any person or agency under contract with the commission which provides protection and advocacy services pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law” (emphasis added).

The placement of “as provided for by federal law” at the end of section 33.13 (c) (4) indicates that it was only intended to modify the last clause (see People v Shulman, 6 NY3d 1, 34 [2005] [“(r)elative or qualifying words of clauses ordinarily are to be applied to the words or phrases immediately preceding, and are not to be construed as extending to others more remote, unless the intent of the statute clearly indicates otherwise” (internal quotation marks and ellipsis omitted)]). Here the immediate antecedent phrase is “the authorization of the commission to administer the protection and advocacy system.” Again, as in section 45.09, the most natural reading of this provision is that the reference to federal law concerns the federal authorization of the Commission to administer the protection and advocacy system and to give access to the P&A agencies to records—in this case, clinical records of residents.

Although the majority is correct in pointing out that the primary impetus for passing the two provisions was to ensure that New York State remained in compliance with the federal requirements necessary to receive federal funding for the program (see majority op at 122-123), there is no indication in the legislative history that the Legislature intended to restrict the P&A agencies’ access to the records to comply with the federal requirements. In fact, the Legislature was concerned about issues of access to the records. Senator Padavan noted in his memorandum in support of the 1986 legislation that “during the past year, the Commission had difficulty accessing records involving an individual living in a facility for developmentally disabled individuals certified by an agency outside of the Department of Mental Hygiene” (Mem of Senator Frank Padavan, Bill Jacket, L 1986, ch 184, at 9, 1986 NY Legis Ann, at 126). Furthermore both counsel for the Commission and counsel for OPWDD (formerly the New York State Office of Mental Retardation and Developmental Disabilities) interpreted the statute as providing the broad access to records that is enjoyed by the Commission. Counsel for the Commission noted that “[t]his bill accomplished two essential goals. First, section one of the bill will enable the agencies under contract with the Commission as part of this protection and advocacy program, to obtain access to mental hygiene residential facilities and client records allowed to the Commission itself under current law” (Letter of Paul F. Stavis, Commission on Quality of Care for the Mentally Disabled, to Evan A. Davis, Counsel to the Governor, June 18, 1986, Bill Jacket, L 1986, ch 184, at 12). Counsel for OPWDD was concerned that

“[a]s currently proposed, this amendment to § 45.09 would permit any person or agency within the protection and advocacy system to have access to all of the facility’s information, regardless of whether or not that person is investigating the complaint
“The amendment enlarges the scope of access required by the Act” (Letter of Paul R. Kietzman, Office of Mental Retardation and Developmental Disabilities, to Evan A. Davis, Counsel to the Governor, June 19, 1986, Bill Jacket, L 1986, ch 184, at 21).

Thus it seems that the concerned agencies understood that the Legislature gave to the P&A agencies the same access as given to the Commission. True, these letters were not before the Legislature prior to the passage of the bill, however, they do indicate that the interpretation of the statutes as allowing the P&A agencies access to the records equivalent to that of the Commission is a rational one and in keeping with the purpose of the creation of the protection and advocacy programs.

Further, being on notice of this broad reading of the statutes, the Legislature did not see fit to amend them to indicate that the P&A agencies’ access is limited to that codified in the federal statute. Accordingly, it may be inferred that the interpretation proposed by petitioners here is in line with the intent of the Legislature, which was free to grant more access to the records than that required by the federal statutes, and in my opinion, sought to give equal access to the Commission and its P&A agencies.

Having determined that both statutes, enacted as part of the same legislation, must be interpreted harmoniously to allow the P&A agencies unrestricted access to both the facility records and data and the clinical records of facility residents equal to that enjoyed by the Commission itself, I turn to the further issue wherein respondents seek to limit access to the clinical records by requiring permission from an “actively involved family member.”

I disagree with the majority’s conclusion that “actively involved” or “qualified” family members may qualify as a “legal guardian, conservator and legal representative” as defined by the Developmental Disabilities Assistance and Bill of Rights Act (see majority op 125) and agree with the Appellate Division’s finding that they do not qualify as legal guardians.

45 CFR 1386.19 provides: “Legal Guardian, conservator and legal representative all mean an individual appointed and regularly reviewed by a State court or agency empowered under State law to appoint and review such officers and having authority to make all decisions on behalf of individuals with developmental disabilities.” It is uncontroverted that New York State has no formal appointing or reviewing process for designating family members as “actively involved.” The OPWDD argues that it has sufficient procedures in place to designate a family member as a legal guardian within the ambit of the federal requirements. The OPWDD’s regulations define an “[alctively involved adult family member” as “[s]omeone 18 years of age or older who is related to a person in a facility and who has demonstrated, in the opinion of the interdisciplinary team, significant and ongoing involvement in the individual’s life, as well as sufficient knowledge of the individual’s needs” (14 NYCRR 681.99 [k]). While it may be true, as the majority notes, that the OPWDD’s regulatory authority may have “the force of law” (majority op at 126), this informal process as defined in the OP-WDD’s regulations does not adequately regulate the appointment or the reviewing process as opposed to a court appointed guardian pursuant to the provisions of Mental Hygiene Law article 81 or Surrogate’s Court Procedure Act article 17-A, wherein much court oversight exists. Therefore, as a matter of law, the OPWDD’s regulation is inadequate to fulfill the requirements of 45 CFR 1386.19.

Accordingly, I would vote to modify the Appellate Division order as indicated above and grant the petition to the extent of ordering respondents to provide petitioners the clinical records as well as the system data facility records sought.

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

Order modified, etc.

      . The DD Act of 1975 (42 USC § 6001 et seq.) was repealed and incorporated into the DD Act of 2000 (42 USC § 15001 et seq.), which retained the name of the act and most of its provisions.

      . Although OPWDD questioned whether there was probable cause to believe that the individuals were being neglected, it stated that it would provide the records if petitioners otherwise satisfied the federal access criteria.

      . The paragraphs at issue described the “inhumane conditions” of the Willowbrook State School in the 1970s and the 2007 death of a child in OP-WDD’s care in an unrelated case.

      . Although Supreme Court agreed with OPWDD on the legal issues, it declined to dismiss the petition/complaint in its entirety, finding that factual issues existed as to whether petitioners had followed the DD Act’s procedures with respect to a number of residents.

      . Petitioners place heavy reliance on letters written by OPWDD’s general counsel and the Commission’s counsel commenting that the 1986 bill expanded the scope of access contemplated by the DD Act (see Letter of Paul R. Kietzman, Office of Mental Retardation and Developmental Disabilities, to Evan A. Davis, Counsel to the Governor, June 19, 1986, Bill Jacket, L 1986, ch 184, at 21; Letter of Paul E Stavis, Commission on Quality of Care for the Mentally Disabled, to Evan A. Davis, Counsel to the Governor, June 18, 1986, Bill Jacket, L 1986, ch 184, at 12). But postpassage opinions of state agencies are generally entitled to “little weight” in discerning legislative intent (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 n 2 [1998]). Even considering the views expressed in such correspondence, the structure of the statutes and the expressed legislative objective prior to passage convince us that, although counsel may have wanted to substitute other statutory language, the amendments as adopted were intended to incorporate the federal access standards.


author: Chief Judge Lippman.

text:
    [969 NE2d 199, 946 NYS2d 83]
    The People of the State of New York, Respondent, v Luis Ramos, Appellant.
    Argued March 21, 2012;
    decided May 1, 2012

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Katherine A. Levine and Lynn W.L. Fahey of counsel), for appellant.
    The evidence was insufficient to sustain appellant’s conviction of first-degree manslaughter because the People failed to establish that he intended to cause serious physical injury to any particular person or persons when he fired indiscriminately into a crowd. (Jackson v Virginia, 443 US 307; In re Winship, 397 US 358; People v Wells, 7 NY3d 51; People v Fernandez, 88 NY2d 777; Matter of Jenna V., 55 AD3d 1341; People v Young Min Kwak, 29 AD3d 385; People v Robertson, 302 AD2d 956; People v Spaulding, 247 AD2d 762; People v Payne, 3 NY3d 266; Darry v People, 10 NY 120.)

      Charles J. Hynes, District Attorney, Brooklyn (Jill Oziemblewski and Leonard Joblove of counsel), for respondent.
    Defendant failed to preserve his claim that the evidence was legally insufficient to support his conviction of first-degree manslaughter. In any event, the evidence was legally sufficient to support that conviction. (People v Hawkins, 11 NY3d 484; People v Gallagher, 69 NY2d 525; Matter of Suarez v Byrne, 10 NY3d 523; People v Wells, 7 NY3d 51; People v Jones, 41 AD3d 507; People v Rivera, 268 AD2d 445; People v Fernandez, 88 NY2d 777; People v Robertson, 302 AD2d 956; Jackson v Virginia, 443 US 307; People v Rossey, 89 NY2d 970.)
   OPINION OF THE COURT

Chief Judge Lippman.

The question presented by this appeal is whether there is legally sufficient evidence to sustain defendant’s conviction for manslaughter in the first degree. Defendant maintains that there was insufficient evidence that he intended to cause serious physical injury when he fired a gun into a crowd of people. Under the circumstances presented, the evidence was legally sufficient and we therefore uphold the conviction.

Just before midnight on October 2, 2004, defendant was involved in a physical altercation on a Brooklyn street with a woman named Norma. Shortly thereafter, Norma met her brother at a nearby bodega and, together, they returned to the block to confront defendant. Defendant apparently was on the losing end of their second skirmish and was laughed at by several individuals who witnessed the encounter.

Defendant then obtained a small handgun from a nearby building and proceeded to the corner bodega. At that time of night, the bodega provided service through an open window and there was a group of people waiting outside. Six shots were fired into the crowd and the victim, Harold Mason, was killed. Witnesses saw defendant running from the scene with the gun. He was not arrested until about two years after the shooting. At trial, a witness testified to a conversation he had with defendant about two months after the incident, in which defendant stated, when asked why he shot the victim, that “he was high and drunk, and he blacked out, and he went to the corner and started spraying, shooting.” Defendant also indicated that, given the small caliber of his weapon, “[h]e didn’t think it would kill anybody.”

Defendant was indicted for two counts of intentional second degree murder—one count based on a theory that he intended to kill Mason and the other based on a theory of transferred intent. Before the case was submitted to the jury, the court granted defendant’s motion to dismiss the count that was based on the theory that defendant intended to kill Harold Mason, finding no evidence to support the conclusion that defendant targeted Mason in particular. Defendant also moved to dismiss the transferred intent charge, arguing there was insufficient evidence that he intended to cause the death of a person and, instead, the evidence reflected a reckless act. The court denied the motion to dismiss that count and, over defendant’s objection, submitted the lesser included offense of manslaughter in the first degree to the jury (see Penal Law § 125.20 [1] [“A person is guilty of manslaughter in the first degree when . . . [w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person”]). At defendant’s request, the court also submitted the count of manslaughter in the second degree.

The jury acquitted defendant of second degree murder, but convicted him of first degree manslaughter. The Appellate Division affirmed, finding that there was legally sufficient evidence to establish defendant’s guilt beyond a reasonable doubt (80 AD3d 716 [2d Dept 2011]). A Judge of this Court granted defendant leave to appeal (17 NY3d 799 [2011]) and we now affirm.

In determining whether the evidence is legally sufficient to support defendant’s conviction, we must evaluate “whether, ‘after viewing the evidence in the light most favorable to the [People], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v Santi, 3 NY3d 234, 246 [2004], quoting Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Contes, 60 NY2d 620, 621 [1983]). Where there is “any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial,” the defendant’s conviction will be upheld (People v Bleakley, 69 NY2d 490, 495 [1987]).

Viewing the evidence in the light most favorable to the People, a reasonable jury could have concluded that defendant fired his gun with the intent to cause serious physical injury and, as a result, caused Mason’s death. Based on the trial testimony, the jury could have determined that defendant was embarrassed when he was mocked by the individuals who witnessed his prior altercation on the street. The timing of his retrieval of a gun and his use of it to shoot into a group of people standing outside a nearby bodega, further supports the finding that defendant acted with the requisite intent. Moreover, from defendant’s own after-the-fact statement that he did not believe his small caliber weapon would kill anyone, the jury could draw the inference that he did believe shooting the gun would cause serious physical injury and that he intended that result. Under these circumstances, defendant’s conviction for manslaughter in the first degree was supported by legally sufficient evidence.

This conclusion is not negated by the possibility that defendant’s conduct also might have been deemed consistent with a reckless state of mind. There is no contradiction in saying that a defendant intended serious physical injury, and was reckless as to whether or not death occurred (see Matter of Suarez v Byrne, 10 NY3d 523, 540-541 [2008]; People v Trappier, 87 NY2d 55, 57 [1995]).

Nor is our holding here inconsistent with our remark that shooting into a crowd is a “[quintessential example[ ]” of depraved indifference murder (see People v Suarez, 6 NY3d 202, 214 [2005]). The People, not having brought a depraved indifference charge, made no attempt to prove that defendant shot into a crowd without knowing or caring whether he would kill anyone. The People claimed that defendant intended to kill—a contention the jury rejected—and in the alternative that he intended serious physical injury, a contention the jury accepted, and one supported by the evidence.

To the extent that defendant maintains the evidence was legally insufficient under a theory of transferred intent because it failed to establish that he intended to injure a particular person, that argument is not preserved for our review.

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

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

Order affirmed.

       Defendant was also indicted for criminal possession of a weapon in the third and fourth degrees, but both of those charges were dismissed prior to deliberations.


author: Graffeo, J.

text:
    [969 NE2d 202, 946 NYS2d 86]
    In the Matter of Eyal Ovadia et al., Appellants, v Office of the Industrial Board of Appeals et al., Respondents.
    Argued March 20, 2012;
    decided May 1, 2012

      POINTS OF COUNSEL

      D’Agostino, Levine, Landesman & Lederman, LLP, New York City (Bruce H. Lederman of counsel), for appellants.
    I. It was an error of law to find HOD Construction Corp. and its owner liable as joint employers. (Bynog v Cipriani Group, 1 NY3d 193; Zheng v Liberty Apparel Co. Inc., 355 F3d 61.) II. The determination made following the hearing was not supported by substantial evidence and was arbitrary and capricious. III. Any alleged guaranty violates the statute of frauds. IV The Industrial Board of Appeals acted arbitrarily and capriciously in deciding the case based upon a joint employment theory which was never raised by the Department of Labor. Y. Practical realities of construction projects mandate reversal.

      Eric T. Schneiderman, Attorney General, New York City (Richard Dearing, Barbara D. Underwood and Leslie B. Dubeck of counsel), for respondents.
    I. Under the Labor Law, a general contractor is a joint employer where economic realities show that the general contractor has “permitted or suffered” laborers to work. (Rutherford Food Corp. v McComb, 331 US 722; Antenor v D & S Farms, 88 F3d 925; People ex rel. Price v Sheffield Farms-Slawson-Decker Co., 225 NY 25; Miller v North Hudson Contr. Co., 166 App Div 348; Nationwide Mut. Ins. Co. v Darden, 503 US 318; Falk v Brennan, 414 US 190; Barfield v New York City Health & Hosps. Corp., 537 F3d 132; Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21; Matter of Fink v Lefkowitz, 47 NY2d 567; Chen v Street Beat Sportswear, Inc., 364 F Supp 2d 269.) II. Substantial evidence supports the Industrial Board of Appeal’s determination that HOD Construction Corp. and its owner were, in economic reality, joint employers of the bricklayers. (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Stork Rest. v Boland, 282 NY 256; Matter of Berenhaus v Ward, 70 NY2d 436; Barfield v New York City Health & Hosps. Corp., 537 F3d 132; Rutherford Food Corp. v McComb, 331 US 722; Zheng v Liberty Apparel Co. Inc., 355 F3d 61; People ex rel. Price v Sheffield Farms-Slawson-Decker Co., 225 NY 25; Balbuena v IDR Realty LLC, 6 NY3d 338; Patel v Quality Inn S., 846 F2d 700.)

      National Employment Law Project, New York City (Sarah Leberstein and Catherine K. Ruckelshaus of counsel), for Mason Tenders’ District Council of Greater New York and Long Island, amicus curiae.
    I. The Labor Law is a remedial statute that uniquely and broadly defines responsible “employers” to include employers who use contractors. (Ansoumana v Gristede’s Operating Corp., 255 F Supp 2d 184; Lopez v Silverman, 14 F Supp 2d 405; Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Cromer [Transworld Sys.—Sweeney], 248 AD2d 773; Rutherford Food Corp. v McComb, 331 US 722; A. H. Phillips, Inc. v Walling, 324 US 490; Tennessee Coal, Iron & R. Co. v Muscoda Local No. 123, 321 US 590; Nationwide Mut. Ins. Co. v Darden, 503 US 318; Secretary of Labor, United States Dept. of Labor v Lauritzen, 835 F2d 1529.) II. Construction employers consistently and increasingly use subcontractors, and many of these arrangements result in violations of basic wage and hour standards, so holding contractors accountable is important. (Mendoza v Essential Quality Constr., Inc., 691 F Supp 2d 680; Zheng v Liberty Apparel Co. Inc., 355 F3d 61; Lopez v Silverman, 14 F Supp 2d 405; Itzep v Target Corp., 543 F Supp 2d 646; Zavala v Wal-Mart Stores, Inc., 393 F Supp 2d 295; Coke v Long Is. Care At Home, Ltd., 376 F3d 118; Vizcaino v Microsoft Corp., 97 F3d 1187, 522 US 1098; Falk v Brennan, 414 US 190; Asselta v 149 Madison Ave. Corp., 65 F Supp 385; Hodgson v Arnheim & Neely, Inc., 444 F2d 609.)
   OPINION OF THE COURT

Graffeo, J.

The sole issue on this appeal is whether a general contractor acted as a joint employer of masonry workers, who were employed by one of its subcontractors, thereby owing unpaid wages to the subcontractor’s workforce.

In 2006, a real estate developer hired HOD Construction Corp. (HOD) to act as general contractor for the construction of two multifamily residences in Queens. HOD entered into a subcontract with Well Built Construction Corp. (Well Built) for the masonry work on the project. Pursuant to the subcontracting agreement, HOD paid Well Built and, in turn, Well Built paid the wages of its workers. Well Built employed approximately 22 laborers, who worked various hours and brought their own tools to the job. The masonry workers were supervised by Well Built’s principal, Martin Bruten, and another individual who allegedly worked as a foreman or supervisor for Well Built. The owner of HOD, Eyal Ovadia, visited the work site several times a day but spoke only with Bruten or the foreman; he did not directly supervise Well Built’s workforce.

Bruten periodically underpaid the laborers for the work they performed and, about three months into the project, he abandoned the job and ceased paying his workers. After Bruten failed to return to the job site, a group of masonry workers— most of whom spoke little English—arrived at HOD’s headquarters demanding to be paid and threatening to leave the project. Ovadia spoke privately with one of the workers, Inocencio Reyes Navarrete, but there is now a dispute as to the content of that conversation and any representations made. Navarrete testified before a hearing officer of the respondent Office of the Industrial Board of Appeals (the Board) that Ovadia told him “not to worry about it, that there are two floors that need to be finished, that keep working, that he [Ovadia] will pay us.” Ovadia, on the other hand, stated that he did not promise to pay Well Built’s workers but advised Navarrete that the workers needed to speak with Bruten. Ovadia further claimed that he made several attempts to reach Bruten by telephone but was unsuccessful.

Navarrete alleged that, following the conversation with Ovadia, he informed the other Well Built laborers that Ovadia agreed to pay their wages if they finished the job. Therefore, the laborers returned to the job site and continued to work on the project for another six days. On the seventh day, Ovadia hired a new masonry subcontractor with a different work crew, and Well Built’s employees were removed from the site without payment.

Upon the filing of a claim for unpaid wages by the Well Built employees, respondent New York State Department of Labor (DOL) conducted an investigation and issued an order concluding that HOD assumed the status of an “employer” of Well Built’s workers, as that term is defined in the Labor Law. DOL ordered HOD to pay over $117,000, which represented past-due wages covering the three-month period, including the six days the workers remained on the job after Bruten’s departure, along with penalties and interest. HOD sought administrative review and, after a hearing, the Board upheld the DOL’s order, holding that HOD and Well Built jointly employed the workers. HOD and Ovadia then commenced this CPLÉ article 78 proceeding seeking to annul the Board’s ruling. Upon transfer from Supreme Court, the Appellate Division confirmed the Board’s determination and dismissed the petition (Matter of Ovadia v Office of the Indus. Bd. of Appeals, 81 AD3d 457 [1st Dept 2011]). We granted leave to appeal (17 NY3d 702 [2011]).

Labor Law § 190 defines the term “employer” as “including] any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service” (Labor Law § 190 [3]). An “employee” is described in the statute as “any person employed for hire by an employer in any employment” (Labor Law § 190 [2]). Furthermore, to be “employed” under the Labor Law means that a person is “permitted or suffered to work” (Labor Law § 2 [7]).

Despite these seemingly broad definitions, we have recognized that in the typical general contractor/subcontractor context, a general contractor is not an employer of its subcontractors’ employees (see Duda v Rouse Constr. Corp., 32 NY2d 405, 409 [1973]; Sweezey v Arc Elec. Constr. Co., 295 NY 306, 310-311 [1946]; see also Gambella v Johnson & Sons, Inc., 285 App Div 580, 581 [2d Dept 1955]). As a practical matter, general contractors in the construction industry do not hire or supervise the workers employed by their subcontractors; they do not usually maintain the employment records for each worker or track the individual workers’ schedules or rates of pay. The primary objective of a general contractor is to keep the project on schedule and to coordinate the work among subcontractors in order to avoid costly delays in the completion of the project. Thus, general contractors frequently interact with the principals and supervisors of the subcontractors and generally have no direct control or functional supervision over the employees performing work for the subcontractors.

Applying the federal six-factor test from Zheng v Liberty Apparel Co. Inc. (355 F3d 61, 72 [2d Cir 2003]) for considering whether the “economic reality” between entities in a given business relationship supports the theory of “joint employment,” the Board concluded that HOD met certain factors supporting joint employer status. In reaching that conclusion, however, the Board relied on several characteristics that, if applied consistently in the construction realm, would likely render most general contractors the joint employers of their subcontractors’ employees—a proposition that does not reflect the actual relationships in the construction industry. For instance, the Board stated that HOD “provided the work site and materials used by the [workers] to perform” their tasks. But this is a common occurrence at construction sites. In most commercial construction projects, the architect or owner selects the materials to be used, then pursuant to the terms of the relevant contract, the general contractor, construction manager or subcontractor orders the materials from suppliers for delivery to the job venue. Such a usual occurrence at construction projects should not determine the nature of employment relationships.

The Board also emphasized that the unpaid laborers worked full time at the project for the duration of the three-month period that HOD contracted with Well Built to do the masonry work. It is difficult to see how this fact contributes to the conclusion that HOD was a joint employer since it is to be expected that a subcontractor’s workers would continue working for the term of the contract. And it appears that the Board credited Ovadia’s testimony, corroborated by the workers, that, although he frequently visited the work site, he did not give directions or instructions to the laborers but communicated only with Bruten or the foreman. Inasmuch as a general contractor is expected to conduct routine quality control inspections and ensure that the coordination and sequencing of the work proceeds on schedule, this fact does not render the general contractor an employer of all workers at the job site. Hence, the Board erred as a matter of law in relying on these particular factors in reaching its determination of joint employment. Because the Board’s factual findings indicate nothing more than that the usual contractor/ subcontractor relationship existed between HOD and Well Built during the three-month period that Bruten was on the job, we need not resort to federal precedent to resolve this issue. In any event, even were we to apply the Zheng test, we would hold that HOD was not a joint employer of Well Built’s employees.

Although we find evidence of a joint employment relationship lacking here during the period that Well Built was on the job, our holding should not be misconstrued as a conclusion that a general contractor in a construction setting can never be an employer of its subcontractor’s employees. Certainly, there may be situations where the business relationship between a general contractor and a subcontractor supports the finding that the general contractor assumed the role of employer of the subcontractor’s workforce.

Even in this case, an open question remains as to whether HOD became an employer of Well Built’s laborers for the six-day period after Well Built and Bruten abandoned the project. In its decision, the Board acknowledged the conflicting testimony given by Ovadia and Navarrete as to the representations made during the conversation that occurred at HOD’s office, but the Board did not indicate whose version it credited. We therefore remit to the Board for a determination of whether Ovadia made an enforceable promise to pay the workers for their continued work following Bruten’s disappearance and whether the workers relied on his promise by continuing to work at the construction site for the following six days (see generally Clifford R. Gray, Inc. v LeChase Constr. Servs., 51 AD3d 1169, 1170 [3d Dept 2008]; Bunkoff Gen. Contrs. v Dunham Elec., 300 AD2d 976, 978 [3d Dept 2002]). If the Board concludes that Ovadia represented that he would pay the laborers’ wages, then the provisions of Labor Law § 190 may apply and the Board could calculate the amount of unpaid wages earned during that time period, together with any applicable penalty and interest.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the matter remitted to that court, with directions to remand to the Industrial Board of Appeals for further proceedings in accordance with this opinion.

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

Judgment reversed, etc.

      . It is unclear in the record who employed the individual referred to as “Anthony” but it appears that he was not employed by HOD.

      . DOL also assessed the same sum against Well Built and Bruten. Neither Well Built nor Bruten appeared before the Board and they are not parties to this appeal.

      . An employment relationship is not the only means by which a general contractor such as HOD can become obligated to pay workers on a construction site. Under the Lien Law, as a general contractor, HOD is the trustee of funds the developer transferred to HOD for payment to subcontractors and laborers working on the project (see Lien Law § 70 [1], [2]). Well Built’s workers are the beneficiaries of that trust (see Lien Law § 71 [4]). The record does not indicate whether the Well Built laborers pursued relief under this provision, which contains a one-year limitation period for commencing an action to enforce the trust (see Lien Law § 77 [2]).

      . The Zheng factors assess:
      “(1) whether [the entity’s] premises and equipment were used for the [laborers’] work; (2) whether the [subcontractor] had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which [the laborers] performed a discrete line-job that was integral to [the entity’s] process of production; (4) whether responsibility under the contracts could pass from one subcontractor to another without material changes; (5) the degree to which the [entity] or [its] agents supervised [the laborers’] work; and (6) whether [the laborers] worked exclusively or predominantly for the [entity]” (355 F3d at 72).

      . The Board does not argue that we should defer to its interpretation of the relevant statutes, nor is this a case where such deference would be appropriate (see Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]; Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353, 359-360 [1994]). The Board’s determination did not involve an application of any specialized “factual data” or draw on any “knowledge [or] understanding of underlying operational practices” (Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225, 231 [1996]; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). Rather, its ruling involved a question “of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 285 [2009]; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]; Kurcsics, 49 NY2d at 459) and its factual findings plainly indicate that HOD and Well Built engaged in a standard contractor/ subcontractor relationship.

      . That HOD “controlled” the premises of the construction site is not significant since a general contractor by definition must maintain such general oversight of the project. Further, as the Zheng court recognized, no single factor is dispositive and the courts must consider the “industry custom and historical practice” of a given industry (355 F3d at 73). In the construction industry the practice of subcontracting the various phases of the work is well-established and no evidence exists that it was implemented in order to avoid compliance with the provisions of the Labor Law (see id. at 74).