author: Per Curiam. Read, J.

text:
    [26 NE3d 218, 2 NYS3d 390]
    Strauss Painting, Inc., Appellant-Respondent, v Mt. Hawley Insurance Company, Respondent-Appellant, and Metropolitan Opera Association, Inc., Respondent.
    Argued October 22, 2014;
    decided November 24, 2014

      POINTS OF COUNSEL

      Richard Janowitz, Mineóla, for appellant-respondent.
    The courts below erred in deciding that, as a matter of law, Strauss Painting, Inc.’s notice to Mt. Hawley Insurance Company was not given as soon as was practicable under the circumstances, and/or that the untimeliness of Strauss’s notice was not reasonably excused under the facts and circumstances of this case, rather than allowing the issue to be decided by a jury. (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; Battle v State of

      New York, 257 AD2d 745; Gerdes v Canales, 74 AD3d 1017; Accetta v Simmons, 108 AD3d 1096; Yu v Vantage Mgt. Servs., LLC, 85 AD3d 564; Siwek v Phillips, 71 AD3d 469; Rodriguez v Dixie N.Y.C., Inc., 26 AD3d 199; Seccombe v Serafina Rest. Corp., 2 AD3d 516; Abetta Boiler & Welding Serv., Inc. v American Intl. Specialty Lines Ins. Co., 76 AD3d 412; Matter of Cohalan, 71 Misc 2d 196.)

      Crowell & Moring LLP, New York City (Clifton S. Elgarten, Stuart C. Levene and Jared A. Levine of counsel), for respondent-appellant.
    I. The lower courts failed to apply the plain language of the construction contract and Mt. Hawley Insurance Company’s comprehensive general liability policy. (Jacobson v Sassower, 66 NY2d 991; Revson v Cinque & Cinque, P.C., 221 F3d 59; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; NML Capital v Republic of Argentina, 17 NY3d 250; Greenfield v Philles Records, 98 NY2d 562; Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85 NY2d 173; Hooper Assoc. v AGS Computers, 74 NY2d 487.) II. Mt. Hawley Insurance Company properly denied coverage to the Metropolitan Opera Association, Inc. based on late notice. (Webster ex rel. Webster v Mount Vernon Fire Ins. Co., 368 F3d 209; Roofing Consultants v Scottsdale Ins. Co., 273 AD2d 933; Dryden Mut. Ins. Co. v Brockman, 259 AD2d 947; City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 978; Tower Ins. Co. of N.Y. v Rong Rong Sun, 105 AD3d 561; Excelsior Ins. Co. v Antretter Contr. Corp., 262 AD2d 124; Zappone v Home Ins. Co., 55 NY2d 131; Commercial Union Ins. Co. v International Flavors & Fragrances, Inc., 822 F2d 267; QBE Ins. Corp. v Jinx-Proof Inc., 102 AD3d 508; Estee Lauder Inc. v OneBeacon Ins. Group, LLC, 62 AD3d 33.) III. The lower courts correctly determined that Strauss Painting, Inc.’s notice was inexcusably late. (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d 460; Blue Ridge Ins. Co. v Biegelman, 36 AD3d 736; Hartford Fire Ins. Co. v Baseball Off. of Commr., 236 AD2d 334; Paul Developers, LLC v Maryland Cas. Ins. Co., 28 AD3d 443; 319 McKibben St. Corp. v General Star Natl. Ins. Co., 245 AD2d 26; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; U.S. Underwriters Ins. Co. v Manhattan Demolition Co., 250 AD2d 600; Nowicki v Insuramerica, 103 AD2d 1013.)

      Ahmuty, Demers & McManus, Albertson (William J. Mitchell of counsel), for respondent.
    I. Mt. Hawley Insurance Company did not disclaim coverage for late notice. (Chelsea Vil. Assoc. v

      U.S. Underwriters Ins. Co., 82 AD3d 617; United States Underwriters Ins. Co. v City Club Hotel, LLC, 369 F3d 102; J.T. Magen v Hartford Fire Ins. Co., 64 AD3d 266; Admiral Ins. Co. v State Farm Fire & Cas. Co., 86 AD3d 486; Industry City Mgt. v Atlantic Mut. Ins. Co., 64 AD3d 433; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054; Greater N.Y. Mut. Ins. Co. v Chubb Indem. Ins. Co., 105 AD3d 523; Sierra v 4401 Sunset Park, LLC, 101 AD3d 983; Hartford Ins. Co. v County of Nassau, 46 NY2d 1028.) II. The Metropolitan Opera Association, Inc. is an additional insured on Strauss Painting, Inc.’s liability policy. (Long Is. Light. Co. v Hartford Acc. & Indem. Co., 76 Misc 2d 832; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Pecker Iron Works of N.Y. v Traveler’s Ins. Co., 290 AD2d 426, 99 NY2d 391; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Santamaria v 1125 Park Ave. Corp., 238 AD2d 259; Zuckerman v City of New York, 49 NY2d 557; Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397; Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66; Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386; National Screen Serv. Corp. v United States Fid. & Guar. Co., 364 F2d 275.)
   OPINION OF THE COURT

Per Curiam.

By agreement dated September 3, 2008, Strauss Painting, Inc. (Strauss)/Creative Finishes, Ltd. (Creative) contracted with the Metropolitan Opera Association, Inc. (the Met) to perform work on the Met’s premises; specifically, to strip and repaint the rooftop steel carriage track for the opera house’s automated window-washing equipment (hereafter, generally referred to as the contract). The contract was a tailored version of the American Institute of Architects’ “Abbreviated Form of Agreement Between Owner and Contractor For CONSTRUCTION PROJECTS OF LIMITED SCOPE where the Basis of Payment is a STIPULATED SUM” (AIA Document A107 [1978 ed]), with the parties’ attached exhibits A through D made a part thereof. The first page of the contract designates the Met as “the Owner” and Strauss/Creative as “the Contractor.”

I

Indemnification and Insurance Requirements

The contract mandates that Strauss/Creative indemnify and hold the Met harmless, “[t]o the fullest extent permitted by law,” from and against all claims and damages attributable to bodily injuries “arising out of or resulting from” work performed by Strauss/Creative or any of its subcontractors “caused in whole or in part by [their] negligent act or omission,” and “regardless of whether or not. . . caused in part by [the Met].” The contract’s provisions addressing insurance obligate Strauss/ Creative to purchase and maintain contractors liability insurance to protect the Met from claims under workers’ compensation and other employee benefit acts, and “claims for damages because of bodily injury . . . which may arise out of or result from [Strauss/Creative’s] operations” under the contract, whether undertaken by Strauss/Creative, any of its subcontractors or “anyone directly or indirectly employed by any of them.” Additionally, the insurance “shall include contractual liability insurance” applicable to Strauss/Creative’s contractual duty to indemnify and hold the Met harmless; and “[certificates of such insurance shall be filed with [the Met] prior to the commencement of’ the construction project.

Importantly, exhibit D, entitled “INSURANCE REQUIREMENTS,” fleshes out Strauss/Creative’s insurance obligations. This contract document requires Strauss/Creative to procure three types of insurance: (1) workers’ compensation insurance (para [a]); (2) owners and contractors protective liability (OCP) insurance with a combined single limit of $5 million (para [b]); and (3) comprehensive general liability (CGL) insurance, with combined coverage for property and bodily injury with a minimum single limit of $5 million, which might be met by umbrella coverage (para [c]). As relevant to this appeal, paragraph (b) of exhibit D, after identifying OCP coverage as an insurance requirement, specifies that “ [Liability should add [the Met] as an additional insured and should include contractual liability and completed operations coverage”; paragraph (e) directs Strauss/Creative to “furnish [the Met] [with] an Original Owners and Contractors policy,” and also to “provide certificates of insurance for the [Workers’] Compensation, the [CGL] and the ‘Umbrella’ Policy, prior to the commencement of the contract.”

The contract was signed on behalf of the Met as “OWNER” by the opera house’s manager, and on behalf of Strauss as “CONTRACTOR” by Ralph Drewes (Drewes) as “VP” Strauss and Creative, although separately owned, shared the same address and some of the same employees. At his deposition, Drewes testified that he ran the day-to-day operations of both companies, and reported to both Victor Strauss, the owner and president of Strauss, and Hillary J. Klein, the owner and president of Creative. Strauss did not have an agreement with District Council 9, the painters’ union, while Creative did, and the contract between Strauss/Creative and the Met required the construction project to be carried out by “fully insured union painters.” For this reason, Strauss subcontracted the labor to Creative by agreement dated September 3, 2008, consisting of an unaltered standard form contract with an agreed-upon rider and attachments, and the underlying construction contract between Strauss/Creative and the Met (hereafter, the subcontract).

The subcontract designates Strauss as “the Contractor” and Creative as “the Subcontractor,” and generally requires Creative to undertake the construction project in accordance with the terms of the contract, and to provide specified insurance and indemnify and hold harmless the Met and/or Strauss. The subcontract makes Creative solely responsible for work site safety. Victor Strauss signed the subcontract on behalf of Strauss; Drewes testified that he “believe[d] that [he] signed it on behalf of Creative.”

Creative began work on the construction project on September 4, 2008. At some point, the Met was supplied with a certificate of insurance for a CGL policy issued by Nova to Creative, stating that the Met and Strauss were additional insureds under the policy. The Met was never furnished an original OCP policy covering the construction project, and, as it turned out, neither Strauss nor Creative actually purchased an OCP policy to protect the Met.

Strauss’s CGL Policy with Mt. Hawley

At the time Strauss/Creative contracted with the Met, Strauss had in place a CGL policy issued by Mt. Hawley Insurance Company (Mt. Hawley) for the policy period of November 7, 2007 to November 7, 2008. The policy included ISO (Insurance Services Office, Inc.) form endorsement CG 20 33 07 04 (“ADDITIONAL INSURED — OWNERS, LESSEES OR CONTRACTORS — AUTOMATIC STATUS WHEN REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU”), which specifies as follows:

“WHO IS AN INSURED is amended to include as an additional insured any person or organization for whom [Strauss is] performing operations when [Strauss] and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on [Strauss’s] policy” (emphasis added).

Under the policy, “such person or organization” would be an additional insured with respect to liability for bodily injury so long as the injury was caused, at least in part, by Strauss’s acts or omissions or “[t]he acts or omissions of those acting on [Strauss’s] behalf.”

Regarding notice, the policy specifies that bodily injury “will be deemed to have been known to have occurred at the earliest time when any insured listed under . . . WHO IS AN INSURED or any employee authorized by [an insured] to give or receive notice of an occurrence or claim . . . [b]ecomes aware . . . that bodily injury . . . has occurred or has begun to occur” (internal quotation marks omitted). Further, the insured “must see to it that [Mt. Hawley is] notified as soon as practicable of an occurrence or an offense which may result in a claim” (internal quotation marks omitted).

The Accident, the Personal Injury Lawsuit and Notice to the Insurers

On September 16, 2008, Manuel Mayo (Mayo), a Creative employee, was injured when he fell from a fixed ladder located on the sixth floor of the opera house. This 15-foot ladder led to a hatch door in the ceiling, which provided access to the rooftop and thus the steel carriage track. Mayo was trying to close the hatch door at the end of his shift when he lost his footing. Drewes first learned of Mayo’s accident when the receptionist/ office manager at Creative’s office fielded a telephone call late in the workday on September 16th from someone at the opera house. The caller (not identified in the record) reported that Mayo had been injured and was being transported to the hospital by ambulance. Drewes happened to be in the office at the time the call was received.

The next day Drewes called his “primary contact” at I. Dachs & Sons, Inc. (Dachs), the insurance broker for both Creative and Strauss, to discuss upcoming liability insurance renewals. During this conversation, Drewes brought up Mayo’s accident, and was “[led] to believe by [the broker] that there was no reason to notify the carrier, general liability carrier, because it was a workers’ compensation claim.”

Creative timely filed an “EMPLOYER’S REPORT OF WORK-RELATED ACCIDENT/OCCUPATIONAL DISEASE” (Form C-2) to notify the Workers’ Compensation Board and Creative’s compensation carrier about Mayo’s accident. “A couple of days later” or perhaps “a week after” Mayo’s accident while Drewes was at the opera house to check on how the construction project was coming along, he mentioned to the Met’s house manager that “[t]here was an accident, the man was hurt and he [i.e., Drewes] expected him [i.e., Mayo, the injured worker] to come back to work, [and] at that point it was a worker’s comp claim.”

By complaint dated November 19, 2008, Mayo and his wife sued the Met and Lincoln Center for the Performing Arts, Inc. (Lincoln Center), asserting causes of action for negligence, violations of the Labor Law and loss of consortium in connection with Mayo’s work-related injuries (hereafter, the Mayo lawsuit). Mayo alleged that the hatch door was broken and in disrepair, the ladder’s rungs were worn and not skid-resistant, and there were no proper safety devices such as a cage, safety belt or safety line. The Met received the summons and complaint in the Mayo lawsuit from the Secretary of State on December 5, 2008.

That same day, the Met’s in-house attorney wrote to Strauss and Creative, with a copy to Travelers Insurance Company (Travelers), the Met’s primary liability carrier, forwarding the summons and complaint. The attorney advised Strauss that the Met expected to be indemnified and held harmless to the fullest extent permitted by law, as agreed to by Strauss in the contract. This December 5th letter also referred to the certificate of insurance provided the Met, which “evidenced] General Liability coverage of $1,000,000 per occurrence/$2,000,000 aggregate from [Nova] and Excess/Umbrella Liability coverage issue[d] by RSUI Indemnity Co[.] in the amount of $5,000,000 per occurrence and in the aggregate.” Asserting that the Met was an additional insured under these policies, the attorney asked Strauss to “immediately notify these carriers that the Met expect[ed] them to provide, without cost to the Met, a defense in this lawsuit as well as indemnification.” On December 11, 2008, the Met received another copy of the summons and complaint by mail, this time from the Mayos’ lawyer. The Met’s in-house attorney again wrote Strauss and Creative, with a copy to Travelers, forwarding the summons and complaint and requesting that “the necessary actions” be taken.

On December 29, 2008, a representative of Travelers wrote to Strauss, Creative, Nova and Dachs. She stated that Travelers was the general liability insurer for the Met and Lincoln Center, and that Travelers had received a complaint alleging that Mayo had been injured while working for Creative at the opera house; she then recited Strauss’s obligation under the contract to indemnify and hold the Met harmless from claims such as the Mayo lawsuit, and to “procure insurance naming [the Met] as an additional insured.” The Travelers representative enclosed copies of the lawsuit, contract and certificate of insurance, and asked for written confirmation that “a defense and indemnification will be provided, and [for] the identity of counsel assigned to the defense.” On January 12, 2009, Mt. Hawley’s broker received notice of the Met’s claim (including a copy of Travelers’ December 29th letter) from Dachs. Mt. Hawley’s broker then faxed the Met’s claim to Mt. Hawley, which acknowledged receipt on January 14, 2009.

Mt. Hawley’s Response to Strauss’s and the Met’s Tenders and the Met’s Third-Party Action

On February 3, 2009, Mt. Hawley wrote to Strauss to deny coverage on the basis of late notice because Strauss “was aware of this occurrence on the date it occurred[,] which was September 16, 2008”; and to inform Strauss that Mt. Hawley was “reviewing the information as to whether [the Met] and/or [Lincoln Center] qualify as additional insureds under the terms of [the] policy.” Finally, Mt. Hawley let Strauss know that it had tendered the defense of the Mayo lawsuit to Nova on its behalf; i.e., by letter dated February 2, 2009, with copies to Drewes and Dachs, Mt. Hawley asked Nova to defend and indemnify the Met and Lincoln Center in the Mayo lawsuit, and to defend and indemnify Strauss in any third-party action brought by the Met and Lincoln Center.

In a letter to Travelers, also dated February 3, 2009, Mt. Hawley first observed that the contract between the Met and Strauss/Creative nowhere stated that Lincoln Center was to be indemnified or made an additional insured under any policy issued to Strauss and/or Creative. Accordingly, Mt. Hawley denied Travelers’ tender as to Lincoln Center. Mt. Hawley continued that it was “attempting to determine” whether the Met qualified as an additional insured under the terms of its CGL policy with Strauss.

Referring to the C-2, which showed that Mayo was employed by Creative, Mt. Hawley requested “copies of checks [that] [the Met] issued for payment of the work required in the contract,” adding that “[i]t [was] questionable as to whether [Strauss] was actually involved in this work.” Mt. Hawley noted that, in light of the additional insured endorsement in its CGL policy with Strauss, “we need to determine whether [Strauss] was actually involved in this work in order to determine whether [the Met] is added as an additional insured”; and that “[a]t this point in time, [Mt. Hawley] reserves the right to assert that [the Met] is not an additional insured under the Policy . . . issued to [Strauss] [;] [h]owever, we continue to ask for more information and it may take further discovery to determine our obligations.” Summing up, Mt. Hawley told Travelers that

“[a]s we have denied coverage for contractual indemnification to [Strauss] and have reserved our rights as to whether [the Met] is an additional insured under the policy issued to [Strauss], we will not be taking over the defense and/or indemnification of [the Met] at this time. As stated above, we have denied coverage for contractual indemnification as to [Lincoln Center].”

On March 4, 2009, Mt. Hawley again wrote Travelers, this time stating that the information requested in the February 3rd letter (i.e., copies of checks issued by the Met to Strauss to pay for the construction project) had not been received, and that its “investigation [had] yielded information that [the Met] was aware of this loss on the date that it occurred . . . [since] [apparently . . . [the Met] contacted [Drewes] at [Strauss] to inform him of the accident.” Mt. Hawley added that “[s]hould the information that we have been provided be correct, no coverage would apply to [the Met] in this lawsuit,” and requested an affidavit as to when the Met “first became aware” of Mayo’s accident. Mt. Hawley further declared that “[u]ntil such time as we can review the affidavit being provided, [Mt. Hawley] reserves the right to assert that no coverage would apply based on” the CGL policy’s notice provision. Both the Met and Lincoln Center are shown as copied on this letter. That same day, March 4, 2009, Mt. Hawley wrote to Strauss’s attorney, reiterating its denial of coverage to Strauss on the ground of late notice.

Meanwhile, on January 28, 2009, Nova responded to Travelers’ December 29th letter by disclaiming coverage of the Met as an additional insured on Creative’s CGL policy due to late notice (see Mayo v Metropolitan Opera Assn., Inc., 2011 NY Slip Op 32943[U], *12 [Sup Ct, NY County 2011]). The Met was not copied on this disclaimer letter sent to Travelers.

On February 6, 2009, the Met brought a third-party action in the Mayo lawsuit against Strauss, Creative and Nova. The Met alleged causes of action against Strauss and Creative for common-law and contractual indemnification, and for breach of contract for failure to purchase the OCP policy required by exhibit D of the contract, and alleged a cause of action against Nova for breach of contract for denying coverage.

Strauss’s Lawsuit against Mt. Hawley and the Met and the Decisions Below

By complaint filed on March 16, 2009, Strauss commenced this action against Mt. Hawley and the Met, seeking a declaration that Mt. Hawley was obligated to defend and indemnify it in the Met’s then just-filed third-party action. On June 16, 2010, 15 months later, the Met cross-claimed against Mt. Hawley, asking in its first cross claim for a declaration that it was an additional insured on Strauss’s CGL policy, thereby requiring Mt. Hawley to defend and indemnify it in the Mayo litigation; on July 9, 2010, the Met moved for summary judgment on this cross claim. On July 14, 2010, Mt. Hawley moved to dismiss the Met’s cross claims as untimely, and on July 30, 2010, Mt. Hawley cross-moved for summary judgment against the Met, seeking a declaration that it was not obligated to defend and indemnify the Met in the Mayo lawsuit. Then on July 26, 2010, Mt. Hawley moved for an order granting summary judgment to dismiss Strauss’s complaint and to declare that it was not obligated to defend and indemnify Strauss in the Mayo lawsuit.

Supreme Court disposed of these motions and cross motion in a decision and order dated October 13, 2011 (2011 NY Slip Op 32706[U] [Sup Ct, NY County 2011]). Addressing the Met’s motion and Mt. Hawley’s cross motion, the Judge determined that the Met was an additional insured on Strauss’s CGL policy, and that while the Met’s three-month (counting from the date of the lawsuit) or four-month (counting from the date of the accident) delay in notifying Mt. Hawley was unreasonable as a matter of law, Mt. Hawley did not comply with its statutory duty under Insurance Law former § 3420 (d) to promptly disclaim coverage, as the letters from Mt. Hawley to Travelers and/or the Met only reserved Mt. Hawley’s right to do so. Consequently, the Judge ruled that Mt. Hawley was precluded from disclaiming coverage to the Met. Relatedly, Supreme Court denied Mt. Hawley’s motion to dismiss the Met’s cross claim due to untimeliness, chalking up any delay to Mt. Hawley’s neglect to disclaim coverage promptly; and dismissed Strauss’s complaint against Mt. Hawley on the basis of its late notice to Mt. Hawley of Mayo’s accident.

In its decision and order dated April 11, 2013, the Appellate Division agreed with Supreme Court that Mt. Hawley was required to defend the Met in the Mayo lawsuit because the contract directed Strauss to purchase liability insurance naming the Met as an additional insured, and the CGL policy issued by Mt. Hawley to Strauss contained an additional insured endorsement (105 AD3d 512, 513 [1st Dept 2013]). The court also agreed with Supreme Court that Mt. Hawley had not timely disclaimed coverage; rather, its letters were only “intended to preserve its right to disclaim,” and thus were “insufficient to actually disclaim coverage” (id.). Finally, the Appellate Division rejected Strauss’s claim that its notice to Mt. Hawley was timely, opining that

“[Strauss’s] notice of the accident to Mt. Hawley was untimely as a matter of law, and Mt. Hawley timely disclaimed coverage on that ground. [Strauss’s] notice to its broker did not provide timely notice to Mt. Hawley. There is no indication that [Strauss’s] broker acted as an agent for Mt. Hawley or that the CGL policy listed [Strauss’s] broker as its agent” {id. at 514).

Strauss now appeals and Mt. Hawley cross-appeals pursuant to leave granted by the Appellate Division on August 20, 2013, asking us whether its order in this matter was properly made (2013 NY Slip Op 82536[U] [1st Dept 2013]).

II

In this long-running coverage dispute, Strauss’s appeal calls upon us to decide whether Strauss timely notified Mt. Hawley of Mayo’s accident. Mt. Hawley’s cross appeal poses the threshold question of whether the Met is an additional insured on Strauss’s CGL policy with Mt. Hawley; and then, if it is, whether Mt. Hawley promptly notified the Met that it was disclaiming coverage on account of untimely notice.

Strauss’s Appeal

Strauss argues that the lower courts erred when they concluded that its notice to Mt. Hawley was untimely as a matter of law. Relying on Mighty Midgets v Centennial Ins. Co. (47 NY2d 12 [1979]), Strauss takes the position that whether it gave notice to Mt. Hawley “as soon as practicable” or, alternatively, whether its late notice was excusable are questions for the trier of fact and may not be decided as a matter of law. This is so, Strauss contends, because Drewes followed his usual and customary practice of promptly notifying Dachs, Strauss’s broker, of Mayo’s accident, with every reasonable expectation that Dachs, in turn, would timely notify the proper insurer.

We have long held that a policyholder’s timely notice to a broker does not “constitute the notice contemplated by the [insurance] policy since a broker is normally the agent of the insured and notice to the ordinary insurance broker is not notice to the liability carrier” (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442 n 3 [1972]; see also Hartford Fire Ins. Co. v Baseball Off. of Commr., 236 AD2d 334, 334 [1st Dept 1997] [late notice was not excused even though the policyholders “instructed their broker to inform (the primary and excess insurers) about the lawsuit shortly after its commencement”], lv denied 90 NY2d 803 [1997]; Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d 460, 462 [2d Dept 2005] [a policyholder’s “timely notice of the action to its broker is of no consequence” and thus does not excuse the failure to comply with notice obligations under an insurance policy]). Our decision in Mighty Midgets does not alter this fundamental principle.

Mighty Midgets was a nonprofit corporation organized to encourage, manage and otherwise support boys’ football teams in Orangetown in Rockland County. The Dunn & Fowler Division of Frank B. Hall & Company (Dunn) secured two insurance policies for the Orangetown Midgets: a liability policy from Centennial Insurance Company (Centennial) and a policy providing accident and health protection with the Hartford Accident & Indemnity Company (the Hartford). We described Dunn as “a leading specialist in athletic team insurance and apparently the organization upon which the more than 2,500 teams enrolled in the national program of which the Midgets were a part would rely for guidance in insurance matters” (Mighty Midgets, 47 NY2d at 17).

The roles of Dunn and Centennial were uncommonly intertwined; specifically, in addition to being the solicitor of liability policies with Centennial, Dunn collected the premiums and was designated by the policy as “agent or broker.” Dunn wrote most of its athletic team business with Centennial, which entrusted Dunn with large batches of blank policies already executed by Centennial-authorized signatories, leaving it completely up to Dunn to fill in policy numbers, names of insureds, premiums and the date a policy was to go into effect.

On October 18, 1970, a nine-year-old boy, a member of a Midgets-sponsored team, was injured when, right after a game in which he had played, a large pot of boiling water which rested on the counter of an improvised hot dog stand operated by the Midgets as a fundraising activity was “caused to pour over him” (id.). Robert Halle (Halle), the 21-year-old volunteer president of the Midgets, was not present at the time, but he learned of the accident before the day was out and called Dunn to ask “whether he should ‘put it under a medical or [a] liability claim’ ” (id.). The Dunn representative instructed Halle to notify the Hartford, and Halle dutifully filed a claim with the Hartford, on a form supplied by Dunn.

Then on April 7, 1971, the Hartford notified the Midgets that its policy did not cover the accident because it happened after the game in which the nine year old had played. Although the nine year old’s father, “an avid supporter of the Midgets,” had never before exhibited the slightest inclination to pursue a liability claim, the Hartford’s refusal to pay his son’s medical claim caused him to consult a lawyer, who wrote the Midgets a letter dated May 25, 1971, indicating that a liability suit was “in the offing” (id. at 18).

Halle immediately forwarded the lawyer’s letter to Centennial in care of Dunn. This was the Midgets’ first written notice to Centennial. The liability policy required notice of an occurrence to be made to the insurer in writing and “as soon as practicable.” In light of the seven-month delay, Centennial disclaimed coverage due to untimely notice, and the Midgets brought a declaratory judgment action.

On this record, the trial judge, sitting without a jury, found as a fact

“(1) that Dunn’s handling of the communications from Halle was negligent; (2) that, ‘under the circumstances’, including Halle’s ‘limited . . . understanding of insurance matters’ and the relationship between Dunn and Centennial, the Midgets acted reasonably in that they did all that they ‘could do’ until the arrival of the letter on May 25 first disabused them of the misinformation Dunn had imparted; and (3) that the letter transmitting the . . . lawyer’s liability claim letter constituted written notice given ‘as soon as practicable’ after the claim was made” (id. at 18-19 [footnote omitted]).

The Appellate Division affirmed, with two Justices dissenting (62 AD2d 1014 [2d Dept 1978]). There was no disagreement about the facts; the dissenters simply would have held the written notice to be untimely.

Sitting as a six-Judge Court, we also affirmed, by a margin of four to two. The dissenters commented that “it [was] especially difficult to conclude that it was not ‘practicable’ to give notice long before the expiration of seven months when the insured gave the agent oral notice the day after the accident” (47 NY2d at 23 [Jones, J, dissenting]). The majority ruled, however, that “in the facts and circumstances” presented,

“there was enough evidence from which it could be found that the Midgets’ failure to notify the insurer before it did was not unreasonable and that, consequently, Centennial was not entitled to disclaim. Since our review is limited to determining whether the conclusion of the fact-finding courts finds support in the evidence, we must uphold their determination” (id. at 16, 21).

Like the lower courts, the “facts and circumstances” that we considered particularly compelling were not just Halle’s youth and “limited personal and vocational background[ ] [which was] totally alien to either the world of insurance or that of the law” (id. at 18), but also the unusually close ties between Centennial and Dunn, which reasonably caused Halle to solicit and blindly follow Dunn’s advice.

Here, by contrast, although Dachs may have long been Strauss’s insurance broker, nothing in this record reveals the kind of close relationship between Dachs and Mt. Hawley that existed between Dunn (which was also Centennial’s agent for receipt of notice of claim) and Centennial. The record here does not support the proposition that the insurer and broker had a relationship sufficiently close to suggest that service to the broker was effectively service to the insurer. By contrast, in a situation more akin to Mighty Midgets it might be possible for even a relatively sophisticated representative of an insured to have a good faith, reasonable belief that notice to the broker is sufficient if the insurer’s own actions hold the broker out to be its agent for the purpose of giving notice. In such a case, if the effect of the insurer’s representations is to lull the insured into a false belief that notice had been provided through the agent, the insurer should not be able to raise the insured’s failure to provide an earlier notice as a defense to coverage.

Further, it should be noted that Drewes was not an unsophisticated 21 year old like Halle, unusually dependent upon Dunn, the insurance broker, for advice and guidance. Rather, Drewes was the longtime day-to-day operations manager of two construction contractors in New York City. Indeed, by virtue of Drewes’s experience in the construction industry, it is a wonder that he did not grasp the overwhelming probability that Strauss would be drawn into a Labor Law lawsuit immediately upon learning that Mayo had suffered an elevation-related injury while on the job. In short, the outcome in Mighty Midgets turned on unusual and extenuating facts, not remotely comparable to the circumstances of this case.

Mt. Hawley’s Cross Appeal

Under the additional insured endorsement of Strauss’s CGL policy, whether the Met was an additional insured hinges on whether Strauss and the Met “have agreed in writing in a contract or agreement that [the Met] be added as an additional insured on [Strauss’s] policy.” The Met argues that the second sentence of paragraph (b) of the contract’s exhibit D contains the requisite agreement in writing. Paragraph (b), in its entirety, requires Strauss/Creative to procure the following insurance:

“b. Owners and contractors protective liability insurance with a combined single limit of $5,000,000.00. Liability should add the Metropolitan Opera Association as an additional insured and should include contractual liability and completed operations coverage” (emphasis added).

Mt. Hawley counters that paragraph (b) simply reflects the Met’s considered choice to require Strauss to purchase OCP coverage to protect the Met from risks arising out of Strauss’s work, rather than mandating that Strauss include the Met as an additional insured on its CGL policy. Mt. Hawley observes that the OCP policy specified in this paragraph would have provided the Met with an unshared $5 million limit; by contrast, as an additional insured on Strauss’s CGL, the Met would have to have shared the policy limits with Strauss and any other insureds on the policy.

We agree with Mt. Hawley that the second sentence in paragraph (b) can only refer to the OCP coverage that Strauss promised to purchase for the Met in the first sentence — but never actually acquired. This conclusion is buttressed by paragraph (c) of exhibit D, which sets out Strauss’s insurance commitments to the Met with respect to CGL coverage, stating as follows:

“Comprehensive General Liability. Combined coverage for property and bodily injury with a minimum single limit of $5,000,000.00 (Limits may be met with an ‘Umbrella Policy’D].”

Notably, this provision — the only paragraph in exhibit D addressing Strauss’s insurance obligations with respect to CGL coverage — says nothing about including the Met as an additional insured on Strauss’s CGL policy. We therefore conclude that the Met is not an additional insured on the CGL policy issued to Strauss by Mt. Hawley.

Finally, because the Met is not an additional insured under Strauss’s CGL policy, we do not reach and need not decide the question of whether Mt. Hawley promptly notified the Met that it was disclaiming coverage under that policy due to untimely notice (see Zappone v Home Ins. Co., 55 NY2d 131, 134 [1982] [“failure to disclaim coverage does not create coverage which (a liability) policy was not written to provide”]).

Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendant Metropolitan Opera Association’s motion for summary judgment on its first cross claim and, as so modified, affirmed, and the certified question answered in the negative.

Read, J.

(dissenting in part). The second sentence of exhibit D, paragraph (b) in the September 3, 2008 construction contract (hereafter, the contract) states as follows: “Liability should add the Metropolitan Opera Association as an additional insured and should include contractual liability and completed operations coverage.” While this sentence may be awkwardly phrased and infelicitously placed within exhibit D, it is not ambiguous in light of the realities of the insurance marketplace. Given the differences between owners and contractors protective liability (OCP) and comprehensive general liability (CGL) policies, this sentence clearly obligates Strauss Painting, Inc. (Strauss) to have in place a CGL policy protecting the Metropolitan Opera Association, Inc. (the Met) as an additional insured. With all due respect to my colleagues, there is simply no other way to read it. Accordingly, I respectfully dissent from so much of the majority’s decision as determined that the Met is not an additional insured on the CGL policy issued by Mt. Hawley Insurance Company (Mt. Hawley) to Strauss. For the reasons that follow, I would therefore answer the certified question in the affirmative.

I

An OCP policy covers the named insured’s liability for bodily injury and property damage caused, in whole or in part, by the designated contractor’s work for the insured on a specified construction project. The contractor purchases the OCP policy, which protects the insured from vicarious liability incurred as a result of the contractor’s acts or omissions on the project, and liability arising out of the insured’s own acts or omissions in connection with its “general supervision” of the work performed by the contractor (see generally Donald S. Malecki et al., The Additional Insured Book, International Risk Management Institute [IRMI] at 202-217 [7th ed 2013] [hereafter Malecki]; Craig F. Stanovich, OCP Liability versus Additional Insured Coverage, IRMI [Oct. 2009] [hereafter Stanovich 2009], www.irmi.com/expert/articles/2009/stanovichl0-cgl-generalliability-insurance.aspx).

Mt. Hawley insists that the second sentence of paragraph (b) obligated Strauss to include the Met as an additional insured on the OCP policy that the first sentence directed Strauss to purchase for the benefit of Lincoln Center for the Performing Arts, Inc. (Lincoln Center). For this reason, Mt. Hawley criticizes the Appellate Division for “failing to recognize the critical distinction between the OCP Policy, on which the Contractor was expressly required to have the Met named as an additional insured, and the CGL Policy, for which no such requirement existed”; and argues that “as the owner of the property, Lincoln Center would have been listed as the owner on any OCP Policy. The Met would have been an additional insured on that policy” (emphasis omitted). This is how Mt. Hawley tries to explain away the requirement to make the Met an additional insured.

Lincoln Center owns the opera house and is the Met’s landlord; however, as Mt. Hawley itself pointed out when responding to Travelers’ December 29th letter, Lincoln Center (the entity) is nowhere mentioned in the contract, which identifies the Met as the project owner. Thus, there is no basis within the four corners of the contract for interpreting paragraph (b) as requiring Strauss to purchase an OCP policy issued in the name of Lincoln Center. And it is not obvious how such a policy could have been obtained since Lincoln Center was not the party with which Strauss contracted to perform the work.

Next, the second sentence of paragraph (b) states that the policy on which the Met is to be included as an additional insured must provide “contractual liability and completed operations coverage.” “Contractual liability” in this context refers to the liability assumed by Strauss under the contract’s hold harmless and indemnification provision, while “completed operations” refers to coverage for injuries or damages occurring after the construction project has been finished. These coverage options (i.e., contractual liability and completed operations) are available to an additional insured on a CGL policy; they are not, however, available on an OCP policy (see e.g. Craig F. Stanovich, Contractual Liability and the CGL Policy, IRMI [May 2002], www.irmi.com/expert/articles/2002/stanovich05.aspx7cmd [explaining how contractual liability insurance, found in the CGL insurance policy, applies]; Stanovich 2009 [“The OCP policy excludes coverage for bodily injury or property damage if such injury or damage takes place after the earlier of when the operation has been completed or put to its intended use by anyone other than another contractor or subcontractor working for the Designated Contractor on that project. The ISO CG 20 37 and many insurers’ independently filed additional insured endorsements provide coverage for the additional insured for bodily injury or property damage within the products and completed operations hazard. This coverage option is not available on the OCP policy” (emphasis added)]; Malecki at 58-60, 202). In short, the second sentence of paragraph (b) cannot mean that Strauss was required to purchase an OCP policy with contractual liability and completed operations coverage for the benefit of the Met as an additional insured because no such policy option exists. This pair of agreed-to coverages could only be provided by including the Met as an additional insured on Strauss’s CGL policy.

The Met sought in exhibit D to transfer or shift to Strauss in every way possible the risk of financial loss due to bodily injuries or property damages occurring in connection with the construction project by requiring Strauss to have in place (1) workers’ compensation insurance; (2) an OCP policy in favor of the Met as the named insured; (3) a contractual hold harmless and indemnification provision whereby Strauss assumed the Met’s tort liability arising out of construction operations; and (4) a CGL policy including the Met as an additional insured, which provided for contractual liability and completed operations coverage.

Known as the “belt and suspenders” approach, adding an indemnitee (here, the Met) as an additional insured on the indemnitor’s (here, Strauss’s) liability insurance gives “some protection to fall back on in the event there is a problem with the enforceability of the hold harmless agreement” (id. at 59-60, 69 [“(M)ost contractual risk transfers . . . involve using both an indemnity clause and additional insured status to work hand-in-hand”]; see also The Handbook on Additional Insureds, American Bar Association at 38-39 [Michael Menapace et al. ed 2012] [“There are multiple reasons for a party to insist on both indemnification provisions and insurance requirements in a single contract . . . (T)he protection afforded by indemnification and hold harmless provisions, on the one hand, and additional insured coverage, on the other, are in many instances complimentary (sic) and not co-extensive. Thus, to maximize one’s protection, a party should include in the contract both an indemnification and hold harmless requirement and an additional insured requirement”]). Further, “[i]n the construction industry, general contractors and project owners who seek additional insured protection often will insist upon receiving [ISO endorsements allowing] coverage for both ongoing operations and completed operations” (id. at 51).

As Mt. Hawley points out, an OCP policy may be an alternative to adding the owner as an additional insured to the contractor’s CGL policy. But while there are advantages and disadvantages to each approach (see generally Malecki at 214-217), an OCP policy and additional insured status are not, as Mt. Hawley implies, mutually exclusive. Indeed, “[i]t is not unusual for an indemnitee to request both an OCP policy and additional insured status in the expectation that one of the coverages will apply in the event of a claim or suit” (id. at 216). Nothing (except perhaps cost and/or relative bargaining power) prevents a project owner from seeking to avail itself of the complementary advantages of both coverages, as the Met clearly did in this case.

Finally, Mt. Hawley contends that the Met sought OCP coverage in lieu of additional insured status as part of a “well-reasoned insurance scheme” since “[t]he OCP policy would provide the Met with protection arising out of [Strauss’s] work and, more importantly, ... an unshared $5M limit,” whereas, “[a]s an additional insured on [Strauss’s] CGL policy, the Met would . . . share the policy limits with all other insureds on the Policy — exposing the Met to a wasting of liability limits beyond its control.” Again, Mt. Hawley assumes that a project owner would only bargain with its contractor to provide OCP coverage or additional insured status on the contractor’s CGL policy, not both. It is certainly true that an OCP policy provides the named insured a separate set of limits, while CGL policy limits are shared by all insureds; that is one of the advantages that an OCP policy offers. But Mt. Hawley disputes that the Met was the intended named insured on the OCP policy that Strauss agreed but failed to purchase; therefore, under Mt. Hawley’s interpretation of exhibit D, paragraph (b), the Met would not, in fact, have enjoyed the benefit of the unshared limits that Mt. Hawley contradictorily also claims motivated the Met to choose coverage under an OCP policy rather than additional insured status under Strauss’s CGL policy.

II

Because I conclude that the Met was an additional insured on Strauss’s CGL policy, I reach the issue of whether Mt. Hawley promptly notified the Met that it was disclaiming coverage on account of untimely notice (see Insurance Law former § 3420 [d] [an insurer wishing to deny coverage on account of late notice “shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant”]). On February 3, 2009 Mt. Hawley stated, in a letter sent to Travelers, that it was attempting to determine whether the Met qualified as an additional insured under the policy. The word “disclaim” does not appear in this letter, and the word “denial” shows up only in the context of Strauss or the nonparty Lincoln Center. As to the Met, Mt. Hawley advised Travelers that “we need to determine whether Strauss Painting was actually involved in this work in order to determine whether [the Met] is added as an additional insured. At this point in time, [Mt. Hawley] reserves the right to assert that [the Met] is not an additional insured.” In its letter to Travelers dated March 4, 2009, with a copy to the Met, Mt. Hawley stated that it was investigating how early the Met was aware of the Mayo incident. While this letter recited the policy’s notice conditions, it merely cautioned, in the conditional tense, that “[sjhould the information that we have been provided be correct, no coverage would apply” to the Met (emphases added).

In sum, the two letters constituted ineffective notice because they did not disclaim coverage; instead, they reserved the right to disclaim coverage in the future (see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029 [1979] [“A reservation of rights letter has no relevance to the question whether the insurer has timely sent a notice of disclaimer of liability or denial of coverage”]; Norfolk & Dedham Mut. Fire Ins. Co. v Petrizzi, 121 AD2d 276, 277 [1st Dept 1986] [“A letter from an insurance company to its policyholder which contains a reservation of the insurance company’s rights to disclaim coverage under its policy is not such a notice of disclaimer as to satisfy the requirements of the Insurance Law”]). Because Mt. Hawley never disclaimed for late notice, it waived the late notice defense (see Hartford Ins. at 1029 [“A failure by the insurer to give such notice as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability or denial of coverage, precludes effective disclaimer or denial”]).

Judges Graffeo, Smith, Pigott, Rivera and Abdus-Salaam concur; Judge Read dissents in part in an opinion in which Chief Judge Lippman concurs.

Order modified, without costs, by denying Metropolitan Opera Association, Inc.’s motion for summary judgment on its first cross claim and, as so modified, affirmed, and certified question answered in the negative.

      . In other words, although the first page of the contract designates Strauss/Creative as “the Contractor,” Drewes executed the contract on a signature line identifying only Strauss as “CONTRACTOR” (see Mayo v Metropolitan Opera Assn., Inc., 108 AD3d 422, 424 [1st Dept 2013] [concluding, in the Met’s third-party action against Strauss, Creative and Nova Casualty Company (Nova), Creative’s CGL insurer, that an issue of fact exists with respect to whether Drewes had authority or intent to bind Creative to the contract]). Throughout this opinion, we have generally identified “Strauss/ Creative” as the contractor because this is what the contract’s first page says. We do not intend thereby to imply that Creative is bound to the contract, an issue which has yet to be resolved. But, of course, whether or not Creative is bound to the contract, Strauss surely is.

      . In its corporate disclosure statement filed in this Court, Strauss identifies Creative as an “affiliated corporation.”

      . The subcontract bears the handwritten signature “Hillary J. Klein” with Drewes’s initials.

      . The record does not include a copy of this policy, or of the certificate of insurance.

      . Deposition testimony included in the record, although incomplete, makes clear that the Met’s house manager, assistant director of security and an in-house nurse knew about Mayo’s accident just after it occurred.

      . The December 29th letter from Travelers did not purport to ask Mt. Hawley to defend and indemnify Lincoln Center, the Met’s landlord. Lincoln Center, the organization (as opposed to Lincoln Center, the Met’s address), is not mentioned in either the contract or the subcontract.

      . The Mayo lawsuit settled on October 16, 2013. The Met’s third-party action, which had previously been severed from the underlying personal injury lawsuit, remains pending. According to the Met’s counsel, the settlement “preserved the third-party actions and all insurance coverage and contractual indemnity rights among all of the defendant parties and their carriers.”

      . This provision specified that
      “[i]f under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant” (Insurance Law former § 3420 [d]).
      In response to our decision in Preserver Ins. Co. v Ryba (10 NY3d 635, 642 [2008] [under Insurance Law former § 3420 (d), a policy is “issued for delivery” in New York only if it “covers both insureds and risks located in this state”]), the legislature struck “issued for delivery” from section 3420 (d), which now covers liability policies that are “issued or delivered in this state” (see Insurance Law § 3420 [d] [2]; see also L 2008, ch 388 [eff Jan. 17, 2009 for policies issued or delivered in New York on or after that date and any action maintained under such a policy]).

      . Exhibit D, entitled “INSURANCE REQUIREMENTS,” states in its entirety as follows:

        “a. Workman’s Compensation Insurance covering contractors employees meeting all statutory requirements prescribed in New York State.
      “b. Owners and contractors protective liability insurance with a combined single limit of $5,000,000.00. Liability should add the Metropolitan Opera Association as an additional insured and should include contractual liability and completed operations coverage.
      “c. Comprehensive General Liability. Combined coverage for property and bodily injury with a minimum single limit of $5,000,000.00 (Limits may be met with an ‘Umbrella Policy!)], “d. Contractor will supply the Metropolitan Opera Association with a Hold Harmless and indemnify them against any and all claims arising from their work relative to this agreement.
      “e. Contractor will furnish the Metropolitan Opera Association an Original Owners and Contractors policy. Also will provide certificates of insurance for the Workman’s Compensation, the Comprehensive General Liability and the ‘Umbrella’ Policy, prior to the commencement of the contract.
      “f. All insurance policies must contain a clause that insures the Metropolitan Opera Association a 30 day written notification of cancellation or non-renewal of policy.”

      . Apparently, the only ISO (Insurance Services Office, Inc.) endorsement available for use in adding an additional insured to an OCP policy is the “Additional Insured — Engineers, Architects or Surveyors (CG 20 31)” endorsement (see Malecki at 214, Appendix B), which obviously is not relevant here. In other words, there is no such thing as standard policy language for a lessee who contracts with a contractor for a construction project on the leased premises to become an additional insured on an OCP policy. This is not surprising since the lessee under such circumstances, as is the case with the Met here, would be the named insured on the policy.

      . In this case, the Met did not raise the issue of whether an insurer may validly disclaim coverage by sending written notice to the insured’s own carrier only (see Sierra v 4401 Sunset Park, LLC, 24 NY3d 514 [2014] [decided today]).


source: Caselaw Access Project

author: Read, J. Abdus-Salaam, J.

license: Public Domain

text:
    [26 NE3d 210, 2 NYS3d 382]
    The People of the State of New York, Appellant, v Dwight R. DeLee, Respondent.
    Argued October 15, 2014;
    decided November 24, 2014

      POINTS OF COUNSEL

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for appellant.
    This Court should reinstate defendant’s conviction of manslaughter in the first degree as a hate crime. (People v Tucker, 55 NY2d 1; People v Muhammad, 17 NY3d 532; People v Hampton, 61 NY2d 963; People v Abraham, 22 NY3d 140; People v Gallagher, 69 NY2d 525; United States v Powell, 469 US 57; Dunn v United States, 284 US 390; People v Carbonell, 40 NY2d 948.)

      Philip Rothschild, Hiscock Legal Aid Society, Syracuse, for respondent.
    The Appellate Division correctly reversed Dwight R. DeLee’s conviction for manslaughter in the first degree as a hate crime, as it was legally repugnant to his acquittal for manslaughter in the first degree. (People v Hunter, 17 NY3d 725;
      People v Gray, 86 NY2d 10; People v Rosario, 17 NY3d 501; People v Abraham, 22 NY3d 140; People v Goodfriend, 64 NY2d 695; People v Tucker, 55 NY2d 1; People v Muhammad, 17 NY3d 532; United States v Powell, 469 US 57; Dunn v United States, 284 US 390; People v Carbonell, 40 NY2d 948.)

      Lambda Legal Defense and Education Fund, Inc., New York City (Thomas W. Ude, Jr., and M. Dru Levasseur of counsel), and Nancy Hoppock, Center on the Administration of Criminal Law at New York University’s School of Law, New York City, for Lambda Legal Defense and Education Fund, Inc. and others, amici curiae.
    I. The jury’s verdict was not inconsistent. (People v Muhammad, 17 NY3d 532; People v Loughlin, 76 NY2d 804.) II. This case presents issues of statewide importance concerning New York’s Hate Crimes statute that require guidance from this Court. (People v Pomie, 55 AD3d 630; People v Ribowsky, 77 NY2d 284.) III. The documented harms inflicted by hate crimes make it particularly important that identified perpetrators are held accountable for their crimes. (Wisconsin v Mitchell, 508 US 476.)

      Frank A. Sedita, III, District Attorney, Buffalo {Donna A. Milling, Morrie I. Kleinbart and Michael J. Hillery of counsel), for District Attorneys Association of the State of New York, amicus curiae.
    Repugnancy review should encompass any language in the jury charge, or omitted language, reasonably likely to have influenced the verdict’s inconsistency. Otherwise, New York’s repugnancy rule should be abandoned. (People v Tucker, 55 NY2d 1; People v Muhammad, 17 NY3d 532; People v Lewie, 17 NY3d 348; People v Alonzo, 16 NY3d 267; People v Johnson, 87 NY2d 357; People v Cahill, 2 NY3d 14; United States v Powell, 469 US 57; People v Davis, 58 NY2d 1102.)

      New York State Association of Criminal Defense Lawyers, New York City {Marc Fernich and Brendan White of counsel), Diane Ferrone, New York City, Alfred O’Connor, New York State Defenders Association, Albany, and Richard M. Greenberg, Office of the Appellate Defender, New York City, for New York State Association of Criminal Defense Lawyers and others, amici curiae.
    The Court should not abandon, or otherwise invalidate, the Tucker/Muhammad rule, which safeguards a defendant’s due process rights, and ensures confidence in the accuracy and reliability of the criminal justice system. (People v Muhammad, 17 NY3d 532; People v Tucker, 55 NY2d 1; United States v Powell, 469 US 57; Dunn v United States, 284 US 390; People v

      Haymes, 34 NY2d 639; People v McFadden, 90 AD3d 413; People v Kramer, 118 AD3d 1040; People v Lamont, 113 AD3d 1069; People v Spralling, 91 AD3d 510.)
   OPINION OF THE COURT

Read, J.

A Syracuse grand jury indicted defendant Dwight R. DeLee for second-degree murder as a hate crime (Penal Law §§ 125.25 [1]; 485.05 [1] [a]), second-degree murder (Penal Law § 125.25 [1]) and third-degree criminal weapon possession (Penal Law § 265.02 [1]).

Defendant was tried in County Court before a jury, which rendered a verdict convicting him of the lesser included offense of first-degree manslaughter as a hate crime (Penal Law §§ 125.20, 485.05 [1] [a]), acquitting him of the lesser included offense of first-degree manslaughter (Penal Law § 125.20) and convicting him of the charged weapon possession offense. Upon hearing the jury’s verdict, defense counsel requested that the judge poll the jury and allow him to make “a motion before the jury is dismissed, at the Bench.” After polling the jury, the judge held a sidebar, and counsel argued that the jury’s verdict was inconsistent. After stating that he understood counsel’s argument, the judge announced that he would call the jurors back to the courtroom and dismiss them, adding, “Is that acceptable?” Counsel replied, “Yes, Judge.” When the jurors returned to the courtroom, the judge noted that he had “not excuse[d] them until [he] discussed the issue brought up by [defense counsel] with the lawyers.” Recognizing that he had not previously taken the jury’s verdict on ordinary second-degree manslaughter, the judge elicited from the jurors that they had acquitted defendant of that offense. He then dismissed the jury.

Prior to sentencing, defendant moved pursuant to CPL 330.30 (1) to set aside the verdict as repugnant. Defendant contended that, in light of the elements of first-degree manslaughter as a hate crime and ordinary first-degree manslaughter as charged to the jury, the verdict was repugnant because the two crimes shared the same basic elements, and therefore, as a matter of law, he could not be guilty of first-degree manslaughter as a hate crime and yet not guilty of ordinary first-degree manslaughter. The People countered that, because the judge instructed the jurors that a person commits first-degree manslaughter as a hate crime by committing first-degree manslaughter and additionally selecting the victim based on perceived sexual orientation, the jury must have concluded that ordinary first-degree manslaughter was akin to a lesser included offense of the hate crime, such that a conviction of the hate crime rendered a conviction of ordinary first-degree manslaughter superfluous. In support of this theory, the People presented an affidavit of the jury’s foreperson.

At sentencing, the judge denied defendant’s motion to set aside the verdict on repugnancy grounds without elaborating on his reasoning. Defendant appealed, and on July 19, 2013, the Appellate Division, with one Justice dissenting, modified the judgment on the law by reversing defendant’s conviction for first-degree manslaughter as a hate crime and dismissing the first count of the indictment, and otherwise affirmed (108 AD3d 1145 [4th Dept 2013]). The Appellate Division concluded that defendant had preserved his repugnancy claim by arguing that the verdict was repugnant prior to the jury’s discharge {id. at 1146). The court then explained that the verdict was repugnant because

“[b]y acquitting defendant of manslaughter in the first degree, the jury necessarily found that the People failed to prove beyond a reasonable doubt at least one element of manslaughter in the first degree. To find defendant guilty of manslaughter in the first degree as a hate crime, however, the jury must have found that the People proved beyond a reasonable doubt all of the elements of manslaughter in the first degree, plus the added element that defendant selected the victim due to his sexual orientation. It therefore follows that the verdict is inconsistent” {id. at 1146-1147).

The Appellate Division continued that,

“even assuming, arguendo, that the [trial judge] suggested to the jurors in its instructions that they could convict defendant of only one of the manslaughter in the first degree charges, . . . such a ‘suggestion’ would be immaterial inasmuch as the Court of Appeals has made clear that we may ‘look[ ] to the record only to review the jury charge so as to ascertain what essential elements were described by the trial court’ ” (id. at 1147, quoting People v Tucker, 55 NY2d 1, 7 [1981]).

The court pointed out that “even crediting the theory of the dissent that ordinary or plain manslaughter in the first degree is a lesser included offense of manslaughter in the first degree as a hate crime, the verdict is nevertheless inconsistent” because the jury “ ‘necessarily decided that one of the essential elements [of ordinary or plain manslaughter in the first degree] was not proven beyond a reasonable doubt’ ” (id. at 1148, quoting People v Muhammad, 17 NY3d 532, 539 [2011]).

The dissenting Justice rejected defendant’s claim on the merits (id. at 1151 [Peradotto, J., dissenting]). Stating that the critical inquiry was whether the jury, “as instructed,” reached an inherently self-contradictory verdict, she concluded that the jury’s verdict here was not repugnant (id. [internal quotation marks and citation omitted]). The People appealed to us by permission of the dissenting Justice (21 NY3d 1047 [2013]), and we now modify.

This case presents a straightforward application of Tucker and Muhammad, which clearly contemplate that when jury verdicts are absolutely inconsistent, the verdict is repugnant. The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime (Muhammad, 17 NY3d at 539; Tucker, 55 NY2d at 6). Given that premise, “a verdict is repugnant only if it is legally impossible — under all conceivable circumstances — for the jury to have convicted the defendant on one count but not the other,” and, “[i]f there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” (Muhammad, 17 NY3d at 539-540).

Accordingly, repugnancy does not depend on the evidence presented at trial or the record of the jury’s deliberative process, and “[t]he instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict” (Tucker, 55 NY2d at 8). In making these determinations, it is inappropriate for the reviewing court to “attempt to divine the jury’s collective mental process” (id. at 4). “Jurors are allowed to compromise, make mistakes, be confused or even extend mercy when rendering their verdicts” (Muhammad, 17 NY3d at 544).

Here, the jury’s verdict was inconsistent, and thus repugnant. The jury convicted defendant of first-degree manslaughter as a hate crime, but acquitted him of first-degree manslaughter. In Muhammad, a very recent decision, we used the following hypothetical case to demonstrate how repugnancy analysis works:

“[Consider] a case where charge 1 requires proof of elements A, B and C; [and] charge 2 requires proof of elements A, B, C and D. If the jury convicts a defendant on the second charge, thereby finding that all four elements have been proven beyond a reasonable doubt, but acquits on the first charge, the verdict is repugnant since the acquittal would necessarily involve a finding that at least one of the essential elements of charge 2 — either A, B or C — was not proven beyond a reasonable doubt” (Muhammad, 17 NY3d at 540 [internal quotation marks omitted]).

This is exactly what, in fact, happened in this case. All of the elements of first-degree manslaughter are included in the elements of first-degree manslaughter as a hate crime. Thus, to find the defendant not guilty of first-degree manslaughter necessarily means that at least one of the elements of first-degree manslaughter as a hate crime was not proved beyond a reasonable doubt.

The People’s reasoning to the contrary is not persuasive. The foreperson’s affidavit is the opinion of just one juror, and, in any event, cannot be considered under our long-standing precedent. Further, while the People argue that County Court’s charge allowed the jury to consider the hate crime as a separate track or inquiry from the non-hate crime, the judge specifically instructed the jurors to consider the non-hate crime charges separately and independently from their hate crime counterparts.

Next, we reach the question of the remedy. In Muhammad, we stated in a footnote that the remedy for a repugnant verdict was “dismissal of the repugnant conviction” (17 NY3d at 539 n 1). In other words, where the jury’s verdict proves to be repugnant, the appellate court must reverse the defendant’s conviction and dismiss the count of the indictment underlying that conviction. This was dictum since we held in Muhammad (and its companion case) that the verdicts were not, in fact, legally repugnant. Moreover, we cited as authority People v Hampton (61 NY2d 963, 964 [1984]) and People v Carbonell (40 NY2d 948, 948-949 [1976]), which do not discuss the proper remedy for repugnant verdicts. Essentially, these brief, memorandum decisions merely state that the repugnant charges should be dismissed. Carbonell, moreover, predates Tucker, the case in which we first articulated our approach to repugnancy claims.

In Muhammad, we noted that the purpose of New York’s repugnancy doctrine was, in part, to “ensure that an individual is not convicted of ‘a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all’ ” (Muhammad, 17 NY3d at 539, quoting Tucker, 55 NY2d at 6). While such a rationale is consistent with the remedy of dismissal of the repugnant charge, we have further recognized that a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element. Indeed, as we pointed out in Tucker, a jury “may freely reject evidence and exercise its mercy function” (55 NY2d at 8). In other words, regardless of the court’s instructions, a jury is “free to extend leniency and may decide not to convict a defendant of one or more charges” (Muhammad, 17 NY3d at 539). In Tucker, we observed that, where a repugnant verdict was the result, not of irrationality, but mercy, courts “should not . . . undermine the jury’s role and participation by setting aside the verdict” (55 NY2d at 7). But if this mercy function is the cause of a repugnant verdict, the remedy of dismissal of the repugnant conviction is arguably unwarranted. Indeed, it provides a defendant with an even greater windfall than he has already received.

There is no constitutional or statutory provision that mandates dismissal for a repugnancy error. Given that New York’s repugnancy jurisprudence already affords defendants greater protection than the Federal Constitution requires (see Muhammad, 17 NY3d at 538), permitting a retrial on the repugnant charge upon which the jury convicted, but not on the charge of which the jury actually acquitted defendant, strikes a reasonable balance. This is particularly so given that a reviewing court can never know the reason for the repugnancy. Accordingly, the People may resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury (see People v Mayo, 48 NY2d 245, 253 [1979]).

Finally, we again emphasize that where “a trial court finds that an announced verdict is repugnant, it may explain the inconsistency to the jurors and direct them to reconsider their decisión” (Muhammad, 17 NY3d at 541 n 5). Indeed, under the Criminal Procedure Law the trial court not only may, but must, do so (see CPL 310.50 [2] [“If the jury renders a verdict which in form is not in accordance with the court’s instructions or which is otherwise legally defective, the court must explain the defect or error and must direct the jury to reconsider such verdict”]).

Accordingly, the order of the Appellate Division should be modified by granting the People, if they be so advised, leave to resubmit the charge of manslaughter in the first degree as a hate crime to another grand jury, and, as so modified, affirmed.

Abdus-Salaam, J.

(concurring). I join the opinion of the Court in its entirety, as the Court properly disposes of this case. However, given that jurors may be misled by confusing instructions on the order of deliberations in future cases involving hate crime and regular charges arising from the same incident, as the jurors evidently were here, I write separately to suggest possible ways in which a trial court may properly instruct a jury so as to avoid repugnant verdicts in such cases.

Regardless of the specific relationship between a hate crime charge and an equivalent non-hate crime charge arising from the defendant’s commission of the same offense, the court should, at a minimum, unequivocally inform the jury that it cannot convict the defendant of the hate crime and at the same time acquit the defendant of the corresponding non-hate crime. Rather, the court should explain, if the jury considers both charges, it must either acquit on both, or it may convict on the hate crime, or it may convict only on the lesser included non-hate crime.

Beyond that, amici in these cases propose different instructions on the manner in which a jury must deliberate on a hate crime charge and a related non-hate crime charge. For example, the District Attorneys Association of the State of New York asserts that the court should tell the jury that the non-hate crime is a lesser included offense of its hate-crime variant, such that if the jury convicts the defendant of the hate crime, it cannot deliberate on the non-hate crime allegedly committed by the same criminal conduct. Defendant suggests that the court should inform the jury that they must deliberate on both the hate crime charge and the non-hate crime charge, and any lesser included offenses under each charge, and arrive at a consistent verdict on all charges. By contrast Lambda Legal Defense and Education Fund and its associated amici suggest that the relationship between the crimes be explained via an interrogatory on the verdict sheet rather than an oral instruction. Under that approach, the court would provide the jury with a verdict sheet asking the jury to indicate its verdict on the non-hate crime charge and to separately declare whether it also found the existence of the bias motive which is essential to sustain a conviction on the hate crime charge.

With the exception of Lambda Legal’s proposed special verdict sheet, which like any special verdict sheet is disfavored under the law (see People v Ribowsky, 77 NY2d 284, 290 [1991]), these proposed jury instructions all provide plausible guidance on the consideration of hate crime charges and related non-hate crime charges. I believe, though, that courts would provide particularly clear and legally correct guidance on this subject by telling the jury to treat a non-hate crime as a lesser included offense of an equivalent hate crime allegedly committed via the same criminal acts.

Under our precedent’s criteria for lesser included offenses, a non-hate crime appears to be a lesser included offense of an equivalent hate crime. In that regard, we have held that one offense is a lesser included offense in relation to another offense if: (1) the alleged greater offense is unequivocally of a different degree, and carries a considerably different sentence, than the lesser offense; and (2) it is theoretically impossible to commit the greater offense without also committing the lesser offense by the same conduct (see CPL 1.20 [37]; People v Miller, 6 NY3d 295, 300-302 [2006]; People v Glover, 57 NY2d 61, 63-64 [1982]). And, in Miller, we made clear that an offense which is classified under the same letter grade as a related offense may still be greater than the related offense if the two offenses “are unequivocally of different degrees and carry considerably different sentences” (id. at 300).

Because a hate crime and the equivalent non-hate or ordinary crime share all the same elements, with the exception of the bias motive that elevates a regular crime to a hate crime {see Penal Law § 485.05), it is impossible to commit the hate crime without also committing the ordinary crime. Furthermore, although a hate crime shares the same felony grade classification as an equivalent ordinary crime, the ordinary crime may be a lesser included offense of the hate crime if the hate crime is unequivocally of a different degree than, and carries a considerably different sentence than, the ordinary crime. And, a hate crime is, as a practical matter, of a greater degree than, and carries a greater sentence than, the equivalent ordinary crime. In passing the Hate Crimes Act of 2000, the legislature plainly made hate crimes greater offenses than their equivalent ordinary crimes. The legislature expressly found that hate crimes are uniquely harmful in comparison to similar ordinary crimes because they “do more than threaten the safety and welfare of all citizens” by “intimidating] and disrupting] entire communities and vitiating] the civility that is essential to healthy democratic processes” (Penal Law § 485.00). The legislature’s treatment of hate crimes as greater offenses is further codified in Penal Law § 485.10, which provides that when a defendant is convicted of a hate crime and “the specified [equivalent ordinary] offense is a misdemeanor or a class C, D or E felony,” the hate crime “shall be deemed to be one category higher than the specified offense” (Penal Law § 485.10 [2]), and that hate crimes with higher grade classifications must be punished within a defined set of severe sentencing ranges (see Penal Law § 485.10 [3], [4]). Thus, not only has the legislature concluded that hate crimes are of an unequivocally greater degree than their ordinary variants, but it has also decided to impose considerably higher sentences for hate crimes.

Accordingly, an ordinary crime is a lesser included offense of the equivalent hate crime, and in a case involving an ordinary criminal charge and the equivalent hate crime charge arising from the same criminal conduct, the jury should be told that the ordinary crime is a lesser included offense of the hate crime. To that end, the court should instruct the jury that if it convicts the defendant of the greater offense, it “will not consider” the lesser included offense (CJI2d[NY] Lesser Included Offenses). In that situation, the jury should be told to deliberate on any unrelated charges based on different criminal conduct. Of course, if the jury instead acquits the defendant of the hate crime, it should next deliberate on the equivalent ordinary offense, and in the event of an acquittal on that ordinary charge, it may consider any lesser hate crime or lesser included ordinary crime which has been charged based on the same conduct.

By preventing the jury from deliberating on an ordinary charge after it has convicted the defendant of the equivalent hate crime, a lesser included offense instruction would preclude the jury from reaching an inconsistent verdict, or any verdict for that matter, on the ordinary crime. And, in the event that the jury ignores the instructions and convicts the defendant of both the hate crime and the corresponding ordinary crime, the court may eliminate excessive punishment by dismissing the non-hate crime count as an inclusory concurrent offense (see CPL 300.40 [3] [b]; Miller, 6 NY3d at 303-304). The treatment of an ordinary crime as a lesser included offense of the equivalent hate crime may also give appellate courts desirable flexibility in crafting appropriate remedies for any deficiency in the trial evidence establishing defendant’s guilt of the hate crime. Specifically, where a defendant is convicted of a hate crime based on ample evidence of his conviction of the equivalent ordinary crime but on insufficient evidence of the bias motive, the court need not dismiss the entire conviction in the face of the compelling evidence of the defendant’s guilt of the ordinary crime but may instead reduce the hate crime conviction to a conviction for the ordinary offense (see CPL 470.15 [2] [a]).

In sum, trial courts should instruct jurors in a clear manner to avoid repugnant verdicts in mixed hate-and-ordinary-crime prosecutions, and to achieve that goal, I believe courts should consider informing jurors that an ordinary crime is a lesser included offense of the corresponding hate crime.

Chief Judge Lippman and Judges Graffeo, Smith, Pigott, Rivera and Abdus-Salaam concur; Judge Abdus-Salaam in a concurring opinion.

Order modified by granting the People, if they be so advised, leave to resubmit a charge of manslaughter in the first degree as a hate crime to another grand jury and, as so modified, affirmed.

       Of course, again, the jury must be told that if it convicts on the hate crime, it must either convict on the non-hate crime or it must not reach a verdict on the non-hate crime.


author: Smith, J. Read, J.

text:
    [26 NE3d 237, 2 NYS3d 409]
    The People of the State of New York, Respondent, v Graham Reid, Appellant.
    Argued November 18, 2014;
    decided December 16, 2014

      POINTS OF COUNSEL

      Davis Polk & Wardwell LLP, New York City (Antonio J. Perez-Marques, Marc J. Tobak and Gabriel Jaime of counsel), and Steven Banks, The Legal Aid Society, Criminal Appeals Bureau, New York City {Peter R. Mitchell, John Schoeffel and Andrew C. Fine of counsel), for appellant.
    I. Probable cause to arrest does not suffice to justify a warrantless search. (Arizona v Gant, 556 US 332; Katz v United States, 389 US 347; People v Diaz, 81 NY2d 106; Cupp v Murphy, 412 US 291; Terry v Ohio, 392 US 1; Chimel v California, 395 US 752; Knowles v Iowa, 525 US 113; People v Belton, 55 NY2d 49; United States v Robinson, 414 US 218; People v Evans, 43 NY2d 160.) II. The Appellate Division’s rule invites unconstitutional exploratory searches. (Terry v Ohio, 392 US 1; People v De Bour, 40 NY2d 210; Cupp v Murphy, 412 US 291; People v Knapp, 52 NY2d 689.) III. The courts below conclusively determined that defendant was not in custody or under arrest at the time of the warrantless search. (People v McRay, 51 NY2d 594; People v Burr, 70 NY2d 354; People v Campbell, 87 NY2d 855; People v Harrison, 57 NY2d 470.)

      Cyrus R. Vance, Jr., District Attorney, New York City {Richard Nahas and Vincent Rivellese of counsel), for respondent.
    The search incident to arrest was proper because it was conducted after the police developed probable cause to arrest defendant and it was nearly contemporaneous with his arrest. (People v

      Martin, 50 NY2d 1029; Pennsylvania v Mimms, 434 US 106; Terry v Ohio, 392 US 1; People v Gomez, 13 NY3d 6; People v Batista, 88 NY2d 650; People v De Bour, 40 NY2d 210; United States v Robinson, 414 US 218; People v Weintraub, 35 NY2d 351; Chimel v California, 395 US 752; People v Evans, 43 NY2d 160.)

      New York Civil Liberties Union Foundation, New York City {Alexis Karteron, Christopher Dunn and Philip Desgranges of counsel), for New York Civil Liberties Union, amicus curiae.
    I. When an officer has no intention of making an arrest, the Fourth Amendment and New York law prohibit application of the search incident to arrest exception to the warrant requirement. (Knowles v Iowa, 525 US 113; People v Erwin, 42 NY2d 1064; People v Evans, 43 NY2d 160; Sibron v New York, 392 US 40; Terry v Ohio, 392 US 1; People v Marsh, 20 NY2d 98; McDonald v United States, 335 US 451; Arizona v Gant, 556 US 332; Katz v United States, 389 US 347; People v Diaz, 81 NY2d 106.) II. Affirmance of the Appellate Division’s ruling would invite exploratory searches. (People v Taylor, 294 AD2d 825; People v Lewis, 50 AD3d 595; People v Marsh, 20 NY2d 98; People v Johnson, 66 NY2d 398; Terry v Ohio, 392 US 1; Sibron v New York, 392 US 40; Arizona v Johnson, 555 US 323; Floyd v City of New York, 959 F Supp 2d.)
   OPINION OF THE COURT

Smith, J.

The issue here is whether a search of a driver by the police officer who stopped his car was “incident” to the driver’s arrest. We hold that it was not, because the record shows that, although probable cause to arrest the driver existed before the search, the driver would not have been arrested if the search had not produced evidence of a crime.

I

Officer Jacob Merino testified at a suppression hearing that he followed the car defendant was driving while it crossed double lines into a lane of oncoming traffic, swerved in and out of its lane without signaling, and made a right turn without signaling. Merino stopped the car and approached it. He saw that defendant’s eyes were “very watery” and his clothing was disheveled. There were plastic cups in the car’s center console, and the officer detected an odor of alcohol. Merino asked defendant if he had been drinking, and received an odd answer: defendant said he had a beer after getting off work at 4:00 p.m. — though his conversation with the officer took place at 5:00 in the morning. It is not disputed that the officer’s observations gave him probable cause to arrest defendant for driving while intoxicated (though, as it later turned out, defendant’s blood alcohol level was zero).

Merino asked defendant to step out of the car and patted him down. In the course of doing so, he found a switchblade knife in defendant’s pocket. Defendant was then arrested.

In response to questions by the court, Merino gave the following testimony, referring to the moment when he asked defendant to get out of the car:

“THE COURT: At that point, were you going to arrest him?
“THE WITNESS: No.
“THE COURT: You weren’t?
“THE WITNESS: No. . . .
“THE COURT: So it’s only because you ultimately found the switchblade that you arrested him?
“THE WITNESS: Yes, ma’am.”

Defendant’s motion to suppress the knife was denied on the ground that the pat down was “justified as a search incident to arrest,” and defendant pleaded guilty to criminal possession of a weapon. The Appellate Division affirmed, holding that so long as probable cause to arrest defendant for driving while intoxicated existed, it was irrelevant whether Merino subjectively intended to make such an arrest (People v Reid, 104 AD3d 58 [1st Dept 2013]). A Judge of this Court granted leave to appeal (21 NY3d 1008 [2013]), and we now reverse.

II

The People make no claim that the pat down in this case was justified either by reasonable suspicion that defendant presented a danger to the officer or by probable cause to believe contraband would be discovered. The only justification the People offer for the search is that it was incident to a lawful arrest, and exempt for that reason from the general rule that searches require a warrant (see United States v Robinson, 414 US 218 [1973]). We reject the People’s argument.

It is not disputed that, before conducting the search, Merino could lawfully have arrested defendant for driving while intoxicated. And it is clear that the search was not unlawful solely because it preceded the arrest, since the two events were substantially contemporaneous (see Rawlings v Kentucky, 448 US 98, 111 [1980] [“Where the formal arrest followed quickly on the heels of the challenged search . . . , we do not believe it particularly important that the search preceded the arrest rather than vice versa”]; People v Evans, 43 NY2d 160, 166 [1977] [“The fact that the search precedes the formal arrest is irrelevant as long as the search and arrest are nearly simultaneous so as to constitute one event”]). Nor is it decisive that the police chose to predicate the arrest on the possession of a weapon, rather than on driving while intoxicated (see Devenpeck v Alford, 543 US 146 [2004]). The problem is that, as Merino testified, but for the search there would have been no arrest at all.

Where that is true, to say that the search was incident to the arrest does not make sense. It is irrelevant that, because probable cause existed, there could have been an arrest without a search. A search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not (People v Evans, 43 NY2d 160, 165 [1977]; People v Erwin, 42 NY2d 1064, 1065 [1977]).

Knowles v Iowa (525 US 113 [1998]) is controlling here. In that case, an officer stopped the defendant for speeding, and had probable cause to arrest him under Iowa law, but chose to issue him a citation instead. The officer then searched the car, found marijuana and arrested the defendant. A unanimous Supreme Court held the search inconsistent with the Fourth Amendment. As the Court explained, the rationales justifying the “incident to arrest” exception to the warrant requirement are officer safety and the preservation of evidence; neither of these provides a sufficient reason for upholding a search where no arrest is made (id. at 116-118). The incident to arrest exception is a “bright-line rule” that does not depend on whether there is a threat of harm to the officer or destruction of evidence in a particular case (id. at 118; Robinson, 414 US at 235) — but the rule is inapplicable to cases that fall, as does this one, outside the bright line.

The Appellate Division erred in extending the logic of Whren v United States (517 US 806 [1996]), People v Robinson (97 NY2d 341 [2001]) and Devenpeck (543 US 146) to the present case. These cases hold that a stop or arrest is valid where it is supported by the necessary level of suspicion or probable cause, whatever the actual motive for the officer’s action. But the “search incident to arrest” doctrine, by its nature, requires proof that, at the time of the search, an arrest has already occurred or is about to occur. Where no arrest has yet taken place, the officer must have intended to make one if the “search incident” exception is to be applied.

If a search could be justified by an arrest that, but for the search, would never have taken place, the Supreme Court would not have decided Knowles in the way it did. In Knowles as in this case, there was probable cause to make an arrest, and there was a search, followed immediately by an arrest. The problem, in Knowles as here, was that the search caused the arrest and not the other way around. In Knowles, this fact was proved by the officer’s choice, before conducting the search, not to arrest defendant for speeding but to issue him a citation. Here, Officer Merino made a similar choice not to arrest defendant for drunken driving, a fact proved by the officer’s testimony.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted, and the indictment dismissed.

Read, J.

(dissenting). I would affirm the Appellate Division’s order. As an initial matter, I do not agree that Knowles v Iowa (525 US 113 [1998]) is “controlling here” (majority op at 619). Just this past spring the United States Supreme Court in Riley v California (573 US —, 134 S Ct 2473 [2014]) stated that it had refused to extend the rule of United States v Robinson (414 US 218 [1973]) in Knowles because issuance of a citation does not implicate the concerns for officer safety and destruction or loss of evidence that underlie the search incident doctrine (see Riley, 573 US at —, 134 S Ct at 2485). Under Iowa law at the time Knowles was decided, the issuance of a citation in lieu of arrest did not affect the police officer’s authority to conduct an otherwise lawful search. The Supreme Court was concerned that applying Robinson to cases involving citations rather than arrests would “untether” the search incident doctrine from its justifications (see Riley, 573 US at —, 134 S Ct at 2485).

Unlike Knowles, this case does not involve a search incident to issuance of a citation. And while the arrest here occurred after the search, as was the case in Knowles, the Supreme Court in Rawlings v Kentucky (448 US 98, 111 [1980]) indicated that “[w]here the formal arrest follow[s] quickly on the heels of the challenged search,” it is not “particularly important that the search preceded the arrest rather than vice versa.”

The majority principally grounds its decision to reverse on the police officer’s subjective intent — i.e., the police officer testified at the suppression hearing that he did not intend to arrest defendant until he discovered the switchblade in defendant’s pocket. But as the Appellate Division recognized, the Supreme Court has consistently held that an arresting officer’s subjective intent, however determined, offers no basis for negating an objectively valid arrest (see 104 AD3d 58, 61-62 [1st Dept 2013], discussing Devenpeck v Alford, 543 US 146 [2004]; see also People v Robinson, 97 NY2d 341 [2001]).

The majority now makes an exception to this long-established rule, declaring that “[w]here no arrest has yet taken place, the officer must have intended to make one if the ‘search incident’ exception is to be applied” (majority op at 620). I find no basis for this exception in Supreme Court jurisprudence. Again, the majority relies on Knowles. But nothing in Knowles itself or in the Court’s subsequent discussion of Knowles in Riley suggests that Knowles came out the way that it did because the police officer did not subjectively intend to make an arrest as evidenced by his issuance of a citation before the search. Moreover, interpreting Knowles in this way places it in tension with Raw-lings. If a police officer’s subjective motive for making the arrest is critical, it should be the subject of fact-finding at any suppression hearing where the search occurred prior to the formal arrest. Yet, the Supreme Court in Rawlings said that it was not “particularly important that the search preceded the arrest rather than vice versa.”

There is good reason for the Supreme Court’s preference for categorical rules on the subject of a stop or arrest and search incident to arrest — i.e., “to provide clear guidance to law enforcement” (Riley, 573 US at —, 134 S Ct at 2491). Otherwise, every stop or arrest or search incident to arrest would inevitably devolve into difficult-to-resolve disputes about motive or whether a threat of harm to the police officer or risk of destruction of evidence actually existed in the particular case. The facts here are seemingly clear-cut (i.e., the police officer’s statements at the suppression hearing) and perhaps not often repeated, which makes departure from the categorical rules tempting. But a categorical rule no longer serves its purpose if a court decides to ignore it in individual cases where it seems less fair than particularized fact-finding.

Chief Judge Lippman and Judges Pigott and Rivera concur; Judge Read dissents in an opinion; Judge Abdus-Sadaam taking no part.

Order reversed, defendant’s motion to suppress granted and indictment dismissed.