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

text:
    [824 NE2d 934, 791 NYS2d 494]
    In the Matter of Crown Communication New York, Inc., Respondent, v Department of Transportation of the State of New York, Respondent, City of New Rochelle et al., Appellants, and James Cavanaugh, Individually and as Town Supervisor of the Town of Eastchester, Intervenor Respondent. (Matter No. 1.) In the Matter of Crown Communication New York, Inc., Respondent, v Department of Transportation of the State of New York, Respondent, and City of New Rochelle et al., Appellants. (Matter No. 2.)
    Argued January 5, 2005;
    decided February 10, 2005

      POINTS OF COUNSEL

      Bernis E. Shapiro, Corporation Counsel, New Rochelle (Kathleen E. Gill of counsel), for appellants.
    I. Matter of County of Monroe (72 NY2d 338 [1988]) does not apply to this matter. (Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190; County of Westchester v Village of Mamaroneck, 22 AD2d 143, 16 NY2d 940; Village of Larchmont v Town of Mamaroneck, 239 NY 551; Schrempf v State of New York, 66 NY2d 289; Denihan Enters, v O’Dwyer, 302 NY 451; Murphy v Erie County, 28 NY2d 80; Little Joseph Realty v Town of Babylon, 51 AD2d 158, 41 NY2d 738; Queens County Bus. Alliance v New York State Racing Assn., 89 AD2d 46; Matter of Foster v Saylor, 85 AD2d 876; Gannett Satellite Info. Network, Inc. v Metropolitan Transp. Auth., 745 F2d 767.) II. Even if applicable, Matter of County of Monroe (72 NY2d 338 [1988]) requires compliance with local regulations. (Sprint Spectrum L.P v Willoth, 176 F3d 630; Omnipoint Communications Enters., L.P. v Newtown Twp., 219 F3d 240, 531 US 985; AT & T Wireless PCS, Inc. v City Council of City of Virginia Beach, 155 F3d 423; Omnipoint Communications, Inc. v Common Council of City of Peekskill, 202 F Supp 2d 210; Matter of Foster v Saylor, 85 AD2d 876.)

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Katherine H. Zalantis of counsel), and John A. Sarcone III, Town Attorney, Eastchester, for intervenor-respondent.
    I. The commercial carriers are subject to the City of New Rochelle’s local law. (Incorporated Vil. of Nyack v Daytop Vil., 173 AD2d 778, 78 NY2d 500; Matter of County of Monroe, 72 NY2d 338; DJL Rest. Corp. v City of New York, 96 NY2d 91; Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424; Gache v Town of Harrison, N.Y., 813 F Supp 1037; Sprint Spectrum L.P. v Willoth, 176 F3d 630.) II. The Supreme Court’s order merely enforced the terms of the subsequent license agreements. (Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424; Nancy Neale Enters, v Eventful Enters., 260 AD2d 453.) III. Even under the Matter of County Monroe (72 NY2d 338 [1988]) balancing test, the commercial carriers are not immune from the local law. (Matter of King v County of Saratoga Indus. Dev. Agency, 208 AD2d 194, 85 NY2d 809; Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424; New York SMSA Ltd. Partnership v Town of Riverhead Town Bd., 118 F Supp 2d 333; Sprint Spectrum L.P. v Willoth, 176 F3d 630; Matter of Bell Atl. NYNEX Mobile v Lonergan, 251 AD2d 660; APT Pittsburgh Ltd. Partnership v Penn Twp. Butler County of Pa., 196 F3d 469; SiteTech Group Ltd. v Board of Zoning Appeals of Town of Brookhaven, 140 F Supp 2d 255; Airtouch Cellular v City of El Cajon, 83 F Supp 2d 1158; Omnipoint Communications, Inc. v Common Council of City of Peekskill, 202 F Supp 2d 210; Little Joseph Realty v Town of Babylon, 51 AD2d 158, 41 NY2d 738.)

      Eliot Spitzer, Attorney General, New York City (David Axinn, Caitlin J. Halligan, Michael S. Belohlavek and Richard Lorn

      bardo of counsel), for New York State Department of Transportation, respondent.
    I. The City of New Rochelle’s zoning laws do not apply to placement of commercial users’ equipment on the State of New York’s telecommunications infrastructure. (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470; Matter of Hongisto v Mercure, 72 AD2d 850; Nanuet Fire Engine Co. No. 1 v Amster, 177 Misc 2d 296; Nowak v Department of Audit & Control of State of N.Y., 72 Misc 2d 518; Matter of Unitarian Universalist Church of Cent. Nassau v Shorten, 63 Misc 2d 978; White v Westage Dev. Group, 191 AD2d 687, 82 NY2d 706; Anderson v Taconic State Park Commn., 262 App Div 892, 287 NY 668; Matter of Cellular Tel. Co. v Rosenberg, 82 NY2d 364; Reno v American Civ. Liberties Union, 521 US 844; Sprint Spectrum L.P. v Willoth, 176 F3d 630.) II. The Telecommunications Act of 1996 does not subject the commercial users to local zoning or invalidate the State of New York’s licensing agreements. (Sprint Spectrum L.P. v Willoth, 176 F3d 630; Omnipoint Communications Enters., L.P. v Newtown Twp., 219 F3d 240.) III. The Telecommunications Site Manager Agreement and form licensing agreements do not require the application of local zoning laws to the commercial users. (Ruttenberg v Davidge Data Sys. Corp., 215 AD2d 191; Laba v Carey, 29 NY2d 302; Uribe v Merchants Bank of N.Y., 91 NY2d 336; Loblaw, Inc. v Employers’ Liab. Assur. Corp., 57 NY2d 872; Brooke Group v JCH Syndicate 488, 87 NY2d 530.)

      Crane, Greene & Parente, Albany (Jacqueline Phillips Murray and John P. Stockli, Jr., of counsel), for Crown Communication New York, Inc., respondent.
    I. The wireless telecommunications antennas that are attached to the State of New York’s towers are embraced by the immunity afforded the State’s towers. (Matter of Cellular Tel. Co. v Rosenberg, 82 NY2d 364; Matter of County of Monroe, 72 NY2d 338; Matter of New York Botanical Garden v Board of Stds. & Appeals, 91 NY2d 413; Matter of Karedes v Colella, 100 NY2d 45; Matter of St. Onge v Donovan, 71 NY2d 507; Matter of Sanzoverino v Bruscella, 291 AD2d 502; Town of Oyster Bay v Syosset’s Concern About Its Neighborhood, 173 AD2d 813, 79 NY2d 916; Huerta v New York City Tr. Auth., 290 AD2d 33.) II. Neither federal law nor the State of New York’s Telecommunications Site Manager Agreement require the antennas attached to the State’s towers to be subject to local zoning laws. (Matter of County of Monroe, 72 NY2d 338; Sprint Spectrum L.P v Willoth, 176 F3d 630; Omnipoint Communications Enters., L.P. v Newtown Twp., 219 F3d 240; AT & T Wireless PCS, Inc. v City Council of City of Va. Beach, 155 F3d 423; Omnipoint Communications, Inc. v Common Council of City of Peekskill, 202 F Supp 2d 210; Matter of Foster v Saylor, 85 AD2d 876; Little Joseph Realty v Town of Babylon, 51 AD2d 158, 39 NY2d 827; Matter of Newham v Chile Exploration Co., 232 NY 37.)

      Riele J. Morgiewicz, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae. It is imperative that municipalities be able to enforce their land use laws against private entities. (Village of Euclid, Ohio v Ambler Realty Co., 272 US 365; Matter of County of Monroe, 72 NY2d 338.)
   OPINION OF THE COURT

Graffeo, J.

In this case we are asked whether the installation of private antennae on two state-owned telecommunications towers is exempt from local zoning regulation. Under the particular facts and circumstances of this case, we conclude that the commercial telecommunications providers involved in this state project are not required to make applications for special permits.

In 1997, the New York State Police, on behalf of itself and participating state agencies including the Department of Transportation (DOT or collectively the State), entered into a Telecommunications Site Manager Service Agreement with Castle Tower Holding Corporation to provide Castle with an exclusive license to construct and operate telecommunications towers on state-owned lands and rights-of-way. Castle subsequently assigned the agreement to Crown Communication New York, Inc. Under the terms of the state contract, Crown was permitted to license space on the towers to localities and commercial wireless providers, and the State retained the right to co-locate its own communications equipment on the towers.

After Crown identified two potential locations for towers on state-owned property within the City of New Rochelle (the City), the State granted Crown conceptual approval to commence a preliminary site evaluation for the construction of both towers. One proposed tower, consisting of a 120-foot monopole, would replace an existing 110-foot lattice communications tower located on a DOT right-of-way. The other planned tower—a lattice-type structure—would be erected at a DOT maintenance yard. Both sites are situated along the Hutchinson River Parkway.

In May 2000, the State informed the City of Crown’s telecommunications plans. The following month, Crown and the State gave a public presentation to the Mayor and City Council regarding the purpose and intended use of the two proposed towers. At this meeting, the City voiced no objection to the siting or construction of the towers and Crown offered space on the facilities to the municipality for use by its public safety agencies. This invitation was reiterated in correspondence sent to the City. Thereafter, DOT, as lead agency, performed an environmental review of both sites pursuant to the State Environmental Quality Review Act (SEQRA). DOT issued a negative declaration for each location, finding that neither the replacement tower nor the maintenance yard tower would result in any significant adverse environmental or aesthetic impact based on the nature and location of the sites.

Crown proceeded with the construction of the towers and entered into license agreements with a number of commercial wireless telecommunications providers to lease space on the towers for their equipment. After the maintenance yard tower was completed, and during construction of the replacement tower, the City issued a stop work order, contending that the towers were subject to the City’s zoning laws and that Crown must therefore apply for a special permit from the City’s Planning Board.

In 2001, Crown commenced separate hybrid declaratory judgment and CPLR article 78 proceedings seeking a judgment prohibiting the City from enforcing its zoning regulations to halt construction of the towers and a declaration that the towers were exempt from the local zoning regulations. The two proceedings were later consolidated. Although DOT was a named defendant, it joined in the relief sought by Crown. The Supervisor of the Town of Eastchester later intervened as an additional defendant.

Supreme Court initially declared the towers immune from local zoning regulations and enjoined the City from interfering with their construction and operation. The court applied the “balancing of public interests” test adopted by this Court in Matter of County of Monroe (72 NY2d 338 [1988]) and determined that the State’s interests outweighed the City’s interests. After reargument, Supreme Court modified its prior order to the extent that it found that the private telecommunications providers licensed to install their equipment on the towers were subject to local zoning regulation, concluding that there was no basis to exempt them from such laws. The court, however, adhered to its original determination that Crown need not comply with local zoning requirements regarding the construction of the towers.

The Appellate Division modified by declaring that the wireless telecommunications providers are not subject to local zoning regulation and otherwise affirmed (309 AD2d 863 [2003]). The Court held that the telecommunications companies “are not precluded from enjoying the State’s immunity simply because they are private entities or because colocating on the DOT’s towers will advance their financial interests” (id. at 866, citing County of Monroe, 72 NY2d 338 [1988]; Murphy v Erie County, 28 NY2d 80 [1971]). Thus, the Court determined, “it is not the private status of the Wireless Telephone Providers but, rather, the public nature of the activity sought to be regulated by the local zoning authority that is determinative in this case” (id.). We granted the City leave to appeal and now affirm.

The City argues that, although the towers themselves are exempt from regulation, no justification exists to extend such immunity to the installation of commercial equipment on the towers. Specifically, the City asserts that it has the right pursuant to its zoning authority to evaluate whether private antennae are necessary to close cellular telecommunications coverage gaps or should be placed elsewhere, and to require some form of aesthetic camouflaging of equipment. In response, Crown and the State contend that the private carriers are entitled to share in the immunity already enjoyed by the state-owned towers. They claim that the State’s plan envisions a public-private partnership and that the joint use of its towers facilitates the State’s public safety and environmental goals.

In County of Monroe, we addressed the applicability of local zoning laws where a conflict arises between two governmental entities. There, the issue was whether the expansion and accessory uses of a county-owned airport located within the City of Rochester were subject to the City’s zoning regulations. Abandoning the traditional governmental-proprietary classification standard used to resolve competing land use claims between governmental units, we articulated a “balancing of public interests” test (County of Monroe, 72 NY2d at 341). Balancing a number of factors, including “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests,” we held that they weighed in favor of granting the County immunity for the airport’s expansion (id. at 343 [internal quotation marks and citation omitted]). We also concluded that such immunity extended to additional structures, including an airport terminal, an air freight facility and parking lots, and that such exemption was appropriate despite the fact that portions of the new structures were to be leased for use by commercial entities (see id. at 344-345).

In this case, although we are faced not with a dispute between two municipalities but between a state project and a locality, County of Monroe informs the result. Here, the State submitted evidence of numerous benefits the government’s use of the towers would afford the public, which Supreme Court took into account in finding the towers immune from local regulation under the balancing test. For example, the State is currently in the process of developing its telecommunications infrastructure in anticipation of establishing a Statewide Wireless Network (SWN), which will replace outdated systems with a state-of-the-art digital land mobile radio network designed to permit interagency and intergovernmental communications across the state in emergency situations. According to the affidavit of the State Police’s Administrative Officer and Program Manager of the Telecommunications Site Manager Service Agreement, the SWN will operate in the 700-800 megahertz frequency range, while the State Police’s current communications system uses a 150 megahertz range. Consultants retained by the State Police have indicated that in order to operate in the higher frequency range, it will be necessary to construct three to four times the approximately 150 existing state-maintained radio sites. The State has therefore reserved space on the replacement and maintenance yard towers for anticipated SWN use when the network becomes operational.

Additionally, DOT has developed an Intelligent Transportation System (ITS), which monitors traffic flow, weather and road conditions. DOT’s Director of Traffic Engineering and Safety stated that the collection of such data aids DOT and pub-lie safety entities in being able to “respond to emergency situations, manage and divert traffic, and provide real-time traffic information to motorists,” thereby improving the safety of the traveling public and reducing travel times. DOT explained that the maintenance yard tower utilizes equipment that supports the ITS, and indicated its intention to co-locate additional equipment on the replacement tower. DOT has also placed a radio antenna on the maintenance yard tower to improve the communications range for its maintenance crews and installed video surveillance cameras for improved security at its maintenance yard.

Finally, the State has followed a policy of offering space on its towers to local public safety authorities and offered such space on the two towers to the City in this case. Currently, Westchester County has placed antennae on the replacement tower for use by its Department of Public Safety.

Although Supreme Court determined on reargument that no basis existed to exempt the wireless providers from local zoning regulations, we agree with the Appellate Division that the installation of licensed commercial antennae on the towers should also be accorded immunity because co-location serves a number of significant public interests that are advanced by the State’s overall telecommunications plan. At this time, there are apparently more private than public antennae on the towers, but the presence of commercial equipment does not exclusively serve private interests. The private antennae will improve the availability of 911 emergency cellular calls made by the public, thereby promoting the public safety interest central to construction of the State’s towers. The Highway Emergency Local Patrol (HELP), consisting of a fleet of trucks which patrol highways— including the Hutchinson River Parkway—relies on wireless services provided by one of the carriers currently co-located on the towers. Numerous state agencies, including the Thruway Authority, Dormitory Authority, Department of Environmental Conservation and Department of Health utilize cellular phone services supported by the carriers in this case. Significantly, the co-location of public and private equipment also ehminates the need for the proliferation of telecommunications towers, an important environmental and aesthetic public concern. Furthermore, profits derived from licensing space to wireless providers will ultimately aid in financing the construction of the State’s telecommunications infrastructure plan.

The fact that the wireless providers will also realize profit from their services does not undermine the public interests served by co-location. Such shared use and benefit is analogous to the airport development project in County of Monroe, which likewise served both public and private interests. Subjecting the private carriers to local regulation in this case “could otherwise foil the fulfillment of the greater public purpose of promoting” the State’s public safety and environmental goals associated with its telecommunications infrastructure development plan (County of Monroe, 72 NY2d at 344). In sum, the public and private uses of the towers are sufficiently intertwined to justify exemption of the wireless providers from local zoning regulations.

Little Joseph Realty, Inc. v Town of Babylon (41 NY2d 738 [1977]), relied upon by the City, is distinguishable. In that case, the issue was whether a town’s zoning regulations applied to an asphalt plant operated for private profit but located on town-owned land which had been leased to a private entity. Applying the now-abandoned governmental-proprietary function test, we held that the local zoning laws were applicable, reasoning that because the plant “was operated solely by and for the commercial benefit of ... a private entrepreneur,” the lease arrangement “could not serve to clothe [the entrepreneur] with immunity from the zoning laws” (id. at 742 [emphasis added]). This casé, by contrast, does not merely involve the lease of government-owned space to a private firm for the exclusive purpose of making a profit. Rather, the licensing of space to commercial wireless providers is an integral component of the State’s plan of promoting public safety and reducing the proliferation of cellular towers, clearly salient public purposes.

Nor does the extension of immunity to the private providers in this case conflict with the Telecommunications Act of 1996 (TCA) (47 USC § 151 et seq.). Section 332 of the TCA provides that, subject to enumerated exceptions, “nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities” (47 USC § 332 [c] [7] [A]). While the TCA may not limit a government’s zoning ability, it does not dictate that a locality’s regulations trump state interests where competing interests exist. Rather, consistent with County of Monroe, we conclude that any income the wireless providers derive from the antennae placed on the two towers does not subvert the underlying public interests served by the enhancement of wireless telecommunication, and such equipment is therefore embraced within the immunity already afforded to the state-owned towers pursuant to the balancing test.

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

Ciparick, J. (dissenting).

Because I do not believe the exemption from local zoning regulation accorded to the state-owned telecommunications towers should be applied to the private telecommunications providers here, I respectfully dissent.

Placement of private wireless service facilities is ordinarily subject to local zoning requirements. This case differs from the typical scenario because the private providers locate their antennae on a state tower that is immune from local regulation. The issue before this Court is whether that immunity should be extended to benefit the private providers—allowing them immunity from local zoning simply because they opt to co-locate on a state, rather than a private, tower.

The City of New Rochelle Code contains zoning regulations specifically pertaining to telecommunications facilities (New Rochelle Code, ch 331, art IXA). * While the City understands the need for telecommunications services, it “finds that these regulations are necessary to protect the environmental, scenic and historical resources of the city and to ensure that adverse visual and operational effects will not contribute to blighting or deterioration of the surrounding neighborhood” (New Rochelle Code § 331-64.2). The Code states that shared use of existing towers (co-location) is favored (see New Rochelle Code § 331-64.4 [B]). The Code also provides that applications will be granted in order to fill in gaps in service (see New Rochelle Code § 331-64.4 [C]). The Code lists specific requirements for applicants seeking to co-locate on existing telecommunications facilities (see New Rochelle Code § 331-64.5).

The preliminary inquiry here should be whether the State has preempted this area so that local zoning does not apply. In Incorporated Vil. of Nyack v Daytop Vil., Inc. (78 NY2d 500 [1991]), we addressed whether the operator of a state-licensed residential substance abuse facility was subject to local zoning laws. We engaged in a preemption analysis to determine whether the Nyack Zoning Code was preempted by article 19 of the Mentad Hygiene Law (see Incorporated Vil. of Nyack, 78 NY2d at 505). “Where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, locad law regulating the same subject matter is considered inconsistent and will not be given effect” (Incorporated Vil. of Nyack, 78 NY2d at 505). The Court found that the Village had an important interest in regulating substance abuse facilities and that “separate levels of regulatory oversight [could] coexist” (Incorporated Vil. of Nyack, 78 NY2d at 507).

Here, the State has not preempted the field of regulating telecommunications facilities. The State Department of Transportation (DOT) does have statutory authority to lease property on or along special parkways—which include the Hutchinson River Parkway (see Transportation Law § 71 [2]; § 70 [2] [a]). In addition, the DOT Commissioner must also grant permits for any construction or improvements on a state highway right-of-way “notwithstanding any consent or franchise granted by any town or county superintendent, or by any other municipal authority” (Highway Law § 52). However, while the State does have some measure of control over development in these areas, it does not rise to the level of preemption.

The statutes do not explicitly limit local zoning authority and do not demonstrate any specific intent to preempt this area. Further, although the Commissioner has the authority to lease state highway property, the statute provides that development of such property “shall be subject to the zoning regulations and ordinances of the municipality in which said property is located and to the support, protection or relocation of any public utility facilities within the right of way of any highways within said property” (Highway Law § 10 [38]). Thus, rather than preemption, the statute contemplates that state and local zoning regulation can coexist.

The federal Telecommunications Act of 1996 (TCA) (47 USC § 151 et seq.) also specifically preserves local zoning authority. The TCA states that the act will not limit local authority over the placement of private wireless service facilities with limited exceptions pertaining to regulations that are either discriminatory or prohibit service (see 47 USC § 332 [c] [7]; see also 47 USC § 253 [c]; Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 433 [2004]; majority op at 168-169).

Absent state preemption, the City has a legitimate interest in regulating the placement of private wireless facilities within its borders, and the wireless carriers should have applied for a special permit through the City’s Planning Board. Like Incorporated Vil. of Nyack, there is no proof that the City’s regulations would be inconsistent with the State’s ultimate goal of setting up a Statewide Wireless Network (SWN) (see 78 NY2d at 508). Thus, the City should be permitted to exercise its authority to regulate the placement of private wireless communications facilities.

Nor is there any other barrier to the application of local zoning law. The test articulated in Matter of County of Monroe (72 NY2d 338 [1988]) and adopted by the majority in this case, is inapplicable to this situation. The “balancing of public interests” test applies to disputes between “governmental units”—specifically whether an “encroaching governmental unit” will be subject “to the zoning requirements of the host governmental unit” (see County of Monroe, 72 NY2d at 343). By contrast, this case involves the interests of the municipality (New Rochelle) on the one hand and the interests of the commercial wireless providers on the other. As the majority notes, the immunity of the state towers is not at issue (see majority op at 165 n 2). As the Attorney General concedes, it is not at all clear that County of Monroe is applicable to the State—as the State is sovereign rather than a “governmental unit.”

Even applying County of Monroe, there is no basis to cloak the private providers with the State’s immunity. The factors to be weighed in the “balancing of public interests” test include “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” (County of Monroe, 72 NY2d at 343 [internal quotation marks and citation omitted]). Additional factors include “the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, and alternative methods of providing the needed improvement ... [as well as] intergovernmental participation in the project development process and an opportunity to be heard” (County of Monroe, 72 NY2d at 343).

The State undeniably has an important interest in the SWN to improve State Police communications and in the Intelligent Transportation System (ITS) to improve the safety of travel. It also has an interest in improving 911 service. These interests apply to the utility of the towers in general—which is not at issue here. What is at issue here is whether state immunity should be conferred upon private providers.

The SWN is a prospective development in its planning stages. Thus, the primary use of the tower is currently private, making the majority of the benefits claimed to flow from the tower speculative. The type of land use involved is the placement of private wireless equipment—typically an area subject to regulation by localities. Indeed, such local regulatory authority is specifically preserved by the TCA. Here, there was a lack of intergovernmental participation as to whether the private providers should be permitted to co-locate on the towers.

Significantly, the majority fails to address what effect, if any, the local zoning regulation would have upon the proposed use. There is no indication that local zoning would conflict with these purposes. The New Rochelle Code reflects a preference for co-location—making the application procedure for shared use less rigorous than for a new tower (see New Rochelle Code §§ 331-64.5, 331-64.6). The City also has legitimate interests in regulating telecommunication facilities, such as “protecting] the appearance and property value of neighborhoods” as well as “protecting] the environmental, scenic and historical resources of the city and to ensure that adverse visual and operational effects will not contribute to blighting or deterioration of the surrounding neighborhood” (New Rochelle Code § 331-64.2). In addition, “once an area is sufficiently serviced by a wireless service provider, the right to deny applications becomes broader” (Sprint Spectrum L.P. v Willoth, 176 F3d 630, 643 [2d Cir 1999]). There is no evidence that there were service gaps here that would have required the private providers to place their antennae in these particular locations. Here, given the primarily private use of the towers and the absence of any indication that the zoning provisions would conflict with state purposes, there is an insufficient basis upon which to apply the State’s immunity to the private providers.

The majority also contends that profits from granting space to the private providers that “will ultimately aid in financing the construction of the State’s telecommunications infrastructure plan” is a consideration in determining whether the private providers should benefit by the State’s immunity (majority op at 167). To suggest that mere enhancement of the State’s revenue is the sort of “public interest” that can justify exemption from local regulation can lead to abuses if taken to an extreme.

Nor should the private providers be considered an accessory use, such as “[t]he airport terminal, parking facilities, and air freight facility” in County of Monroe (72 NY2d at 345). The Court determined those uses were accessory to the airport and should benefit by immunity, deeming them “customarily incidental to an airport operation” (County of Monroe, 72 NY2d at 345). Here, the primary use of the towers is commercial and the SWN is a speculative future project. The private providers are engaged in their ordinary business which could be conducted on any tower—whether state or private. While the private providers may confer a benefit, the tower could function without them. Thus, these do not appear to be the type of accessory uses contemplated by County of Monroe.

It is also persuasive that the parties provided for compliance with local zoning requirements in the “Tower License Agreement” between Crown and the private providers. The agreement states that “[t]he access to, and installation, maintenance and operation of, Licensee’s Site Equipment must at all times be in strict compliance with the Technical Standards, all applicable federal, state and local laws, ordinances, and regulations (including without limitation the FCC, Federal Aviation Administration, zoning, building and fire codes) . . . .”

The State’s conduct essentially amounts to selling its immunity from zoning regulations. This particular conduct was rejected by this Court in Little Joseph Realty, Inc. v Town of Babylon (41 NY2d 738, 742 [1977]) and by the Southern District in Omnipoint Communications, Inc. v Common Council of City of Peekskill (202 F Supp 2d 210, 225 [SD NY 2002] [“Nongovernmental uses, such as the lease of space to private corporations for the construction of a personal wireless service facility, are not immune from local zoning requirements”]). Little Joseph concededly relied upon the since-rejected governmental-proprietary function distinction. However, the premise that a government entity should not be permitted to sell its own immunity from local zoning regulations to private parties remains valid.

The State’s immunity from local zoning requirements should not be extended to the private providers. The State has not preempted this area and there is no indication that the local zoning regulations would conflict with the State’s purposes. Thus, I would reverse the order of the Appellate Division and reinstate the order of Supreme Court.

Judges G.B. Smith, Rosenblatt and Read concur with Judge Graffeo; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Kaye and Judge R.S. Smith concur.

Order affirmed, with costs.

      . Both towers have been fully operational since March 2002. At oral argument, the State indicated that five commercial wireless telecommunications companies have installed equipment at the replacement tower site and four companies have placed antennae on the maintenance yard tower.

      . Because the City failed to challenge the immunity of the towers themselves on appeal, their exemption from local zoning regulation is not at issue in this case.

      . The dissent focuses on whether the State has preempted the telecommunications field with regard to the construction of facilities. It is true that where the State preempts a particular area and indicates an intention to preclude local regulation, any inconsistent local law is rendered inapplicable (see Incorporated Vil. of Nyack v Daytop Vil., Inc., 78 NY2d 500, 505 [1991]). We agree with the dissent that the State has not preempted this area of the law. Nevertheless, preemption is not the only means for determining whether a particular activity is exempt from local zoning regulation. We find the principles outlined in County of Monroe applicable to this case, such that the immunity afforded the towers should extend to the wireless providers’ antennae.

      . We emphasize that our determination that immunity is warranted in this case should not be taken as blanket authority for the placement of state-owned towers at any location the State desires. Here, after performing SE-QRA review, DOT concluded that the towers would not have any adverse aesthetic or environmental impact based on their nature and location: one merely replaced an existing tower while the other was placed in a DOT maintenance yard. Moreover, Supreme Court, in applying the County of Monroe balancing test, found that the nature of the towers’ locations did not weigh in the City’s favor.

       The regulations cited were the regulations in effect at the time of the controversy. The provisions pertaining to wireless telecommunications facilities have been amended and now appear at section 331-99 (amended Jan. 15, 2002 by Ord. No. 21-2002).


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [824 NE2d 947, 791 NYS2d 507]
    New York Civil Liberties Union et al., Appellants, v State of New York et al., Respondents.
    Argued January 11, 2005;
    decided February 15, 2005

      POINTS OF COUNSEL

      New York Civil Liberties Union Foundation, New York City (Arthur N. Eisenberg, Christopher Dunn and Donald Shaffer of counsel), for appellants.
    I. The courts below improperly dismissed plaintiffs’ cause of action under the Education Article of the State Constitution. (Campaign for Fiscal Equity v State of New York, 86 NY2d 307; Campaign for Fiscal Equity v State of New York, 187 Misc 2d 1, 295 AD2d 1, 100 NY2d 893; City of New York v State of New York, 86 NY2d 286.) II. Plaintiffs’ claim that state officials have violated their own administrative regulations should have been permitted to survive defendants’ motion to dismiss. (Jiggetts v Grinker, 75 NY2d 411; Ivory v Edwards, 278 App Div 359, 304 NY 949; General Motors Corp. v Industrial Commr, 16 AD2d 862; Walsh v New York State Liq. Auth., 45 Misc 2d 601, 23 AD2d 876, 16 NY2d 781; Matter of

      Triolo v Johnson, 65 Misc 2d 424, 40 AD2d 953; Elms v Lavine, 79 Misc 2d 1; United States ex rel. Accardi v Shaughnessy, 347 US 260; Service v Dulles, 354 US 363; Vitarelli v Seaton, 359 US 535; Yellin v United States, 374 US 109.)

      Eliot Spitzer, Attorney General, Albany (Denise A. Hartman, Caitlin J. Halligan and Daniel Smirlock of counsel), for respondents.
    I. The courts below properly dismissed plaintiffs’ Education Article claim for failure to state a cause of action. (Campaign for Fiscal Equity v State of New York, 86 NY2d 307; Campaign for Fiscal Equity v State of New York, 100 NY2d 893; United States v City of Yonkers, 197 F3d 41, 529 US 1130, 123 F Supp 2d 694; Paynter v State of New York, 100 NY2d 434.) II. Plaintiffs’ Education Article claim is not justiciable because it would entangle the court in New York’s complex regulatory processes, which were designed to improve educational services at poorly performing schools. (Klostermann v Cuomo, 61 NY2d 525; Jones v Beame, 45 NY2d 402; Matter of Bernstein v Toia, 43 NY2d 437; Campaign for Fiscal Equity v State of New York, 100 NY2d 893; Campaign for Fiscal Equity v State of New York, 86 NY2d 307; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147; Matter of Patti Ann H. v New York Med. Coll., 88 AD2d 296; Matter of Markow-Brown v Board of Educ., Port Jefferson Pub. Schools, 301 AD2d 653, 100 NY2d 512; Matter of Langston v Iroquois Cent. School Dist., 291 AD2d 845; Paynter v State of New York, 100 NY2d 434.) III. Plaintiffs fail to state a claim to compel the Commissioner of Education to comply with the Schools Under Registration Review regulations. (Mahoney v Pataki, 98 NY2d 45; Jiggetts v Grinker, 75 NY2d 411; Matter of Korn v Gulotta, 72 NY2d 363; Klostermann v Cuomo, 61 NY2d 525; Grant v Cuomo, 130 AD2d 154, 73 NY2d 820.) IV Should this action be permitted to proceed, this Court should make appropriate adjustments to the parties. (Caruso v New York City Police Dept. Pension Funds, 72 NY2d 568; Matter of Board of Educ. of Roosevelt Union Free School Dist. v Board of Trustees of State Univ. of N.Y., 282 AD2d 166; Matter of Jerry v Board of Educ. of City School Dist. of City of Syracuse, 44 AD2d 198; Paynter v State of New York, 270 AD2d 819, 187 Misc 2d 227, 290 AD2d 95, 100 NY2d 434.)

      Patterson, Belknap, Webb & Tyler LLP, New York City (Phyllis S. Wallitt, Catherine A. Williams and Eugene M. Gelernter of counsel), for Alliance for Quality Education and others, amici curiae.
    I. Allegations of school-wide failure are sufficient to state a claim under the Education Article. (Campaign for Fiscal

      Equity v State of New York, 100 NY2d 893; Paynter v State of New York, 100 NY2d 434.) II. When significant classes of students, such as minority, low-income, and special education students, are being denied the opportunity for a sound basic education, there is systemic failure. (Paynter v State of New York, 100 NY2d 434.) III. Plaintiffs can allege district-wide failures in this case. (Campaign for Fiscal Equity v State of New York, 100 NY2d 893; Affronti v Crosson, 95 NY2d 713; Cron v Hargro Fabrics, 91 NY2d 362; Campaign for Fiscal Equity v State of New York, 86 NY2d 307.)
   OPINION OF THE COURT

Chief Judge Kaye.

Plaintiffs bring suit against the State and its agencies responsible for education, alleging that students in 27 named schools outside of New York City are being denied the opportunity for a sound basic education. Although plaintiffs raise two separate claims, one alleging a constitutional violation and the other a regulatory violation, both in effect request the same relief—-that the State determine the causes of failure of each of the cited schools, and do something to correct it. We agree with the courts below that plaintiffs’ complaint fails to state a cause of action.

I.

Plaintiffs’ first cause of action is brought under the Education Article of the State Constitution, which declares that “[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (NY Const, art XI, § 1). Although the Constitution does not require equality of educational offerings throughout the state (see Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27 [1982] [Levittown]), it does mandate that the opportunity for a sound basic education be provided to all. Thus, a cause of action may be stated under the Education Article when the State fails in its obligation to meet minimum constitutional standards of educational quality.

Fundamentally, an Education Article claim requires two elements: the deprivation of a sound basic education, and causes attributable to the State. As our case law makes clear, even gross educational inadequacies are not, standing alone, enough to state a claim under the Education Article. Plaintiffs’ failure to sufficiently plead causation by the State is fatal to their claim.

In the complaint, plaintiffs allege that defendants “have not taken adequate steps to remedy their [schools’] deficiencies by providing adequate educational resources, services, and physical facilities.” They therefore seek a declaratory judgment that defendants “have failed to enact, implement, and maintain an education system in compliance with the Education Article,” and a permanent injunction

“directing defendants to remedy this constitutional violation by creating, implementing and maintaining a statutory and regulatory system that complies with the Education Article ... by ensuring that all students throughout the State receive an opportunity for a sound basic education, including the provision of sufficient educational resources and adequate physical facilities within all schools and the implementation of administrative measures that will ensure that education expenditures are efficiently and effectively used to provide the opportunity for a sound basic education . . . ; [and requiring] that the State Department of Education conduct a detailed assessment of the sources of failure in each of the ‘failing schools’ identified and . . . work with local school officials and with the affected communities to devise specific school-based remedial plans for correcting the identified failures and . . . provide sufficient resources to implement the specific plans that are developed; and that a Special Master . . . be appointed to monitor implementation of remedial plans.”

Defendants counter that, in order to be cognizable, a claim brought under the Education Article must allege that any educational deficiencies complained of resulted from inadequate funding. Because, in defendants’ view, plaintiffs do not base their complaint squarely on an allegation of funding failure, the action must be dismissed. Plaintiffs, however, insist that their allegation that the State has not provided sufficient “educational resources” necessarily includes a lack of financial resources. Indeed, the amended complaint expressly alleges that “[t]he conditions in plaintiffs’ schools are exacerbated by insufficient funding. The State of New York does not provide adequate financial resources to afford all students throughout the State the opportunity for a sound basic education.” Nevertheless, even construing plaintiffs’ allegations liberally, as we must (see Leon v Martinez, 84 NY2d 83, 87 [1994]), we conclude that the complaint fails to state a cognizable claim.

Plaintiffs contend that, to the extent they have alleged multiple causes for the failure of their schools, such allegations should not defeat their action. To be sure, there may be several causal links to a single outcome—the Education Article does not require that there be a single cause in order for plaintiffs to state a claim. The defect here, however, is not that plaintiffs have alleged too many causes, but that they have failed to clearly allege even one.

True, plaintiffs contend that their schools are, among other things, insufficiently funded, but the gravamen of their complaint is not that more money is needed in these schools. Rather, it is that the State must undertake to figure out what is needed, which might well include money, and provide it. At bottom, plaintiffs’ claim is not premised on any alleged failure of the State to provide “resources”—financial or otherwise—but seeks to charge the State with the responsibility to determine the causes of the schools’ inadequacies and devise a plan to remedy them. An Education Article claim, however, requires a clear articulation of the asserted failings of the State, sufficient for the State to know what it will be expected to do should the plaintiffs prevail.

Thus, in Paynter v State of New York (100 NY2d 434, 441 [2003]), we held that “allegations of academic failure alone, without allegations that the State somehow fails in its obligation to provide minimally acceptable educational services, are insufficient to state a cause of action under the Education Article.” In Paynter, the plaintiffs conceded that the State had sufficiently funded the Rochester City School District, but faulted the State for alleged “practices and policies that have resulted in high concentrations of racial minorities and poverty in the school district, leading to abysmal student performance” (100 NY2d at 438). Although they did not claim any inadequacy of inputs, the Paynter plaintiffs maintained that the State had nevertheless failed in its obligation to provide a sound basic education by neglecting to mitigate demographic factors that may affect student performance. In their view, “no matter how well the State funds their schools, if plaintiffs and their classmates fail, it is the State’s responsibility to change the school population until the results improve” (100 NY2d at 441).

Here, plaintiffs allege deficiencies in both inputs and outputs, contending that minimally acceptable educational services are not being provided in their schools. But even inferring from plaintiffs’ claims of inadequate teaching, facilities and instrumentalities of learning that such deficiencies could be ameliorated by increased funding, we nevertheless conclude that plaintiffs have failed to state a cause of action for a more fundamental reason: In identifying individual schools that do not meet minimum standards, plaintiffs do not allege any district-wide failure. Rather, in seeking to require the State to assess and rectify the failings of individual schools, plaintiffs’ theory would

“subvert the important role of local control and participation in education. As we observed in Levittown, the Education Article enshrined in the Constitution a state-local partnership in which ‘people with a community of interest and a tradition of acting together to govern themselves’ make the ‘basic decisions on funding and operating their own schools.’ The premise of the Article is thus in part that a system of local school districts exists and will continue to do so because the residents of such districts have the right to participate in the governance of their own schools. The aim of the Article ‘was to constitutionalize the established system of common schools rather than to alter its substance’ ” (Paynter, 100 NY2d at 442 [internal citations omitted]).

As the Appellate Division noted, plaintiffs do not request a judgment directing the State to provide additional financial aid to their school districts. The requested relief here bypasses the districts and instead seeks to mandate that the State provide money or other resources directly to individual schools. Requiring the State to intervene on a school-by-school basis to determine each of the 27 named school’s sources of failure and devise a remedial plan would, as we explained in Paynter, subvert local control and violate the constitutional principle that districts make the basic decisions on funding and operating their own schools.

Plaintiffs misinterpret our recognition in Campaign for Fiscal Equity, Inc. v State of New York (100 NY2d 893 [2003] [CFE //]) that education is ultimately a responsibility of the State as a holding that education is not ultimately a responsibility of school districts. In CFE II, we explained that because both the Board of Education and the City of New York are creatures or agents of the State, which delegated whatever authority over education they wield, the State “remains responsible when the failures of its agents sabotage the measures by which it secures for its citizens their constitutionally-mandated rights” (100 NY2d at 922). This observation, however, is in no way inconsistent with the principles of local control set forth in Levittown and reaffirmed in Paynter, which would require that any such “sabotage” be committed by the district.

Thus, because school districts, not individual schools, are the local units responsible for receiving and using state funding, and the State is responsible for providing sufficient funding to school districts, a claim under the Education Article requires that a district-wide failure be pleaded.

II.

Plaintiffs’ second cause of action fares no better. As with their constitutional claim, plaintiffs seek an injunction requiring defendants to determine the causes of failure in their schools and rectify them, based this time on an allegation that defendants have “failed adequately to comply” with their own regulations mandating such remedial action.

Under 8 NYCRR 100.2 (p) (5), those schools “that are determined to be farthest from meeting the school accountability performance criteria” and “most in need of improvement” shall be “place[d] under registration review.” Placing a school under registration review (SURR) indicates that “the school is at risk of having its registration [to operate] revoked” (8 NYCRR 100.2 [p] [6] [i]). In deciding on the number of schools to identify as in need of registration review, the Commissioner of Education is authorized to consider, among other criteria, the sufficiency of state and local resources available to implement and monitor improvement efforts (see 8 NYCRR 100.2 [p] [5]).

Once a school is identified as under registration review, the Commissioner

“shall appoint a team to undertake a resource, planning, and program audit of the district and the school. . . . Based upon the results of the audit, the commissioner shall require that:
“(a) a corrective action plan be developed by the superintendent of the district... in consultation with the school staff, persons in parental relation of children attending the school, and members of the community” (8 NYCRR 100.2 [p] [6] [i]).

Further, the Commissioner shall periodically monitor the implementation of the corrective plan (see 8 NYCRR 100.2 [p] [6] [iv]).

Plaintiffs allege that the Commissioner has violated the mandate of the SURR regulations by failing to place their schools under registration review, thereby allowing the schools to continue to provide inadequate educational opportunities. Plaintiffs do not challenge any specific determination of the Commissioner, but rather his failure to take affirmative action.

Inasmuch as plaintiffs seek to test the action or inaction of a public officer, their sole available remedy lies, as the courts below held, in a CPLR article 78 proceeding seeking mandamus to compel. Mandamus is available, however, only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law (see CPLR 7803 [1]; Matter of Legal Aid Socy. of Sullivan County, Inc. v Scheinman, 53 NY2d 12, 16 [1981]). Thus, mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial (see Matter of Brusco v Braun, 84 NY2d 674, 679 [1994]). A discretionary act “involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” (Tango v Tulevech, 61 NY2d 34, 41 [1983]).

Because the administrative action of deciding which and how many schools to place under registration review involves an exercise of judgment and discretion by the Commissioner, it cannot be compelled by writ of mandamus, and plaintiffs have failed to state a cause of action to require that their schools be designated as SURR schools. Irrespective of the regulatory mandate that some “corrective action plan” be developed once a school is identified as under registration review, the fact remains that the initial decision to so classify a school is wholly discretionary. Such schools must be determined to constitute those “farthest from meeting the school accountability performance criteria” and “most in need of improvement” of all the schools in the state. Further, the obligations placed upon the Commissioner once a school has been placed on the SURR list are also nonministerial, requiring the exercise of the Commissioner’s expertise, judgment and discretion in determining the specific actions to be taken with respect to such a school.

Plaintiffs do not dispute that, through the SURR process, defendants have a procedure in place for accomplishing the very relief plaintiffs seek—that is, trying to improve deficient schools—but contend in effect that since their schools nevertheless remain deficient, defendants must either try something else, or else try harder. Mandamus is unavailable to compel such an uncertain remedy.

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

Judges G.B. Smith, Ciparick, Rosenblatt and Graffeo concur; Judges Read and R.S. Smith concur only in result.

Order affirmed, without costs.

      . Plaintiffs contend that they and their schools—located in the districts of Albany, Buffalo, Hempstead, Lackawanna, Mount Vernon, Roosevelt, Schenectady, Syracuse, Utica, Westbury, Wyandanch and Yonkers—are representative of a class consisting of approximately 75,000 students attending an estimated 150 schools in plaintiffs’ districts.

      . Plaintiffs further assert that a lack of funding is in any event not required to state a cause of action, citing to our acknowledgment in Paynter v State of New York (100 NY2d 434, 441 [2003]) that in Campaign for Fiscal Equity, Inc. v State of New York (86 NY2d 307 [1995]) “we addressed the sufficiency of the pleadings then before us and had no occasion to delineate the contours of all possible Education Article claims.” Because we conclude that plaintiffs’ claim is insufficient for reasons other than a failure to allege inadequate funding, we need not explore those contours here.

      . School districts have existed in New York for nearly 200 years (see L 1812, ch 242 [creating a system for the management of common schools to be headed by a superintendent of common schools, and providing for the establishment of school districts to be run by elected trustees]). Today, procedures for the formation, alteration and dissolution of school districts are set forth in article 31 of the Education Law (see Education Law § 1501 et seq.; see also Education Law §§ 314, 2218).

      . Since the filing of the instant lawsuit, the regulations and terminology of the Department of Education governing accountability and oversight of public schools (8 NYCRR 100.2) were significantly amended to comply with the federal No Child Left Behind Act of 2001 (Pub L 107-110, 115 US Stat 1425 [2002]).


author: -Rosenblatt, J.

text:
    [824 NE2d 944, 791 NYS2d 504]
    Andrew Greenberg, Inc., Appellant, v Sir-Tech Software, Inc., et al., Defendants, and Sir-Tech Canada, Ltd., et al., Respondents.
    Argued January 12, 2005;
    decided February 15, 2005

      POINTS OF COUNSEL

      Weiss & Associates, EC., New York City (Matthew J. Weiss of counsel), for appellant.
    I. The Third Department erroneously invoked the law of the case doctrine. (Chalasani v Neuman, 64 NY2d 879; Penato v George, 42 NY2d 908; Smith v Russell Sage Coll., 78 AD2d 913, 54 NY2d 185; Langer v Garay, 30 AD2d 942; Miglietta v Kennecott Copper Corp., 22 AD2d 874; Schoenborn v Kinderhill Corp., 98 AD2d 831; Reliance Natl. Ins. Co. [UK] v Sapines Intl. Corp., 243 AD2d 406; St. Lawrence Explosives Corp. v Law Bros. Contr. Corp., 170 AD2d 957; Halmar Distribs. v Approved Mfg. Corp., 49 AD2d 841; Bennett v City of New York, 65 AD2d 731.) II. The Canadian defendants consented to personal jurisdiction in New York by the terms of paragraph 23 of the parties’ licensing agreement. (Brooke Group v JCH Syndicate 488, 87 NY2d 530; Dine-A-Mate, Inc. v J.B. Noble’s Rest., 240 AD2d 802; L-3 Communications Corp. v Channel Tech., 291 AD2d 276; International Private Satellite Partners, L.P. v Lucky Cat Ltd., 975 F Supp 483; National Union Fire Ins. Co. of Pittsburgh, Pa. v Worley, 257 AD2d 228.) III. Andrew Greenberg, Inc. was entitled to discovery regarding the Canadian defendants’ nexus with New York prior to the dismissal of its third amended complaint. IV The Due Process Clause was not violated by asserting personal jurisdiction based upon the forum selection clause. (Mitchell v New York Hosp., 61 NY2d 208; Matter of Mallinckrodt Med. v Assessor of Town of Argyle, 292 AD2d 721; Burger King Corp. v Rudzewicz, 471 US 462.) V. Personal jurisdiction existed by virtue of the parties’ forum selection clause. (Sega v State of New York, 60 NY2d 183.) VI. Even without the forum selection clause, personal jurisdiction exists over the Canadian defendants. (Burnett Process v Richlar Indus., 55 AD2d 812; Computer Assoc. Intl., Inc. v Altai, Inc., 982 F2d 693; Dine-A-Mate, Inc. v J.B. Noble’s Rest., 240 AD2d 802; Global Fin. Corp. v Triarc Corp., 93 NY2d 525; American Network, Inc. v Access Am./Connect Atlanta, Inc., 975 F Supp 494; El Cid, Ltd. v New Jersey Zinc Co., 444 F Supp 845; McCrory Corp. v Cloth World, Inc., 378 F Supp 322; Agency Rent A Car Sys., Inc. v Grand Rent A Car Corp., 98 F3d 25; East N.Y. Sav. Bank v Republic Realty Mtge., 61 AD2d 1001; Elman v Belson, 32 AD2d 422.)

      Drew, Davidoff & Edwards Law Offices, LLP, Monticello (Michael Davidoff of counsel), for respondents.
    I. The first decision of the Appellate Division finding no personal jurisdiction required dismissal of the third amended complaint. (Shawangunk Conservancy v Fink, 305 AD2d 902; Bennett v Nardone, 298 AD2d 790, 99 NY2d 579; People v Evans, 94 NY2d 499; Matter of Mallinckrodt Med. v Assessor of Town of Argyle, 292 AD2d 721; Mitchell v La Barge, 257 AD2d 834; Smith v Russell Sage Coll., 78 AD2d 913, 54 NY2d 185; Chalasani v Neuman, 64 NY2d 879; Langer v Garay, 30 AD2d 942; EDP Hosp. Computer Sys. v Bronx-Lebanon Hosp. Ctr., 212 AD2d 570; Poley v Rochester Community Sav. Bank, 140 AD2d 933.) II. The forum selection clause does not bind foreign defendants. (Spectra Prods, v Indian Riv. Citrus Specialties, 144 AD2d 832; Cato Show Print. Co. v Lee, 84 AD2d 947; Sipa Press v Star-Telegram Operating, 181 Misc 2d 550; VOR Assoc, v Ontario Aircraft Sales & Leasing, 198 AD2d 638; Schumacher v Richards Shear Co., 59 NY2d 239; L-3 Communications Corp. v Channel Tech., 291 AD2d 276; International Private Satellite Partners, L.P. v Lucky Cat Ltd., 975 F Supp 483; Wensing v Paris Indus.-N.Y., 158 AD2d 164; Rotoli v Domtar, Inc., 224 AD2d 939; Delagi v Volkswagenwerk AG. of Wolfsburg, Germany, 29 NY2d 426, 30 NY2d 694.) III. Plaintiffs failure to file a cross appeal precludes it from raising an issue decided against it by the lower court. (Sumitomo Mar. & Fire Ins. Co. v Cologne Reins. Co., 75 NY2d 295.) IV Asserting personal jurisdiction would violate the Due Process Clause of the United States Constitution. (Burger King

      Corp. v Rudzewicz, 471 US 462; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Darby v Compagnie Nationale Air France, 769 F Supp 1255; International Shoe Co. v Washington, 326 US 310; Bensusan Rest. Corp. v King, 126 F3d 25; Asahi Metal Indus. Co., Ltd. v Superior Ct. of Cal., 480 US 102; LaMarca v Pak-Mor Mfg. Co., 266 AD2d 899, 95 NY2d 210.) V. Long-arm jurisdiction does not exist pursuant to CPLR 302 (a) (1). (Schumacher v Richards Shear Co., 59 NY2d 239; Spectra Prods, v Indian Riv. Citrus Specialties, 144 AD2d 832; Sipa Press v Star-Telegram Operating, 181 Misc 2d 550; Glassman v Catli, 111 AD2d 744; Beacon Enters., Inc. v Menzies, 715 F2d 757; McGowan v Smith, 52 NY2d 268; CutCo Indus., Inc. v Naughton, 806 F2d 361; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Fort Knox Music Inc. v Baptiste, 203 F3d 193; Graphic Controls Corp. v Utah Med. Prods., Inc., 149 F3d 1382.) VI. Plaintiff is not entitled to discovery. (Peterson v Spartan Indus., 33 NY2d 463.)
   OPINION OF THE COURT

-Rosenblatt, J.

This appeal concerns New York’s long-arm statute (CPLR 302 [a]) and its reach over certain Canadian defendants who, asserting a purported lack of jurisdiction over them, seek dismissal of the complaint. Plaintiff Andrew Greenberg, Inc. (AGI) has alleged that in 1979 it created the name, concept and plot for a computer fantasy role-playing game known as “Wizardry.” Two years later, AGI and defendant Sir-Tech Software, Inc. (Sir-Tech S.I.)—both New York corporations—entered into an agreement granting Sir-Tech S.I. or a subsidiary the right to manufacture and market Wizardry, related products and any subsequent versions of the game.

The 1981 agreement called upon Sir-Tech S.I. to pay AGI a license royalty fee and a percentage of gross sales revenues. It further provided that Sir-Tech S.I. was to copyright the Wizardry games and related products in the name of AGI. The contract also stated that its provisions were binding on the parties’ successors and assigns, and that Sir-Tech S.I. would not disclose any Wizardry game or related product, information or source of materials to anyone without written permission from AGI. In addition, all decisions concerning the assignment of rights under the agreement required the consent of both parties.

The Wizardry game became successful, eventually resulting in several different versions and assorted related merchandise, as well as sublicensing agreements. In 1991, however, Sir-Tech 5.1. stopped sending royalty payments and accounting statements to AGI. AGI alleges that Sir-Tech S.I. nevertheless continued to manufacture and sell subsequent versions of the Wizardry game and related products without furnishing AGI with any accounting or payment.

In 1992, AGI sued Sir-Tech S.I. and Svane, Inc., its subsidiary, alleging that they had refused to pay royalties or account for them. After extensive discovery, AGI learned that Sir-Tech 5.1. had closed its office in St. Lawrence County, dissolved the corporation and transferred its assets, the Wizardry trademarks and its domain name registration to Sirtech Canada, Ltd. and 1259190 Ontario, Inc., Canadian corporations formed by the same principals who owned Sir-Tech S.I.

After successfully joining the two Canadian corporations, AGI served its second amended complaint, seeking an accounting as a basis for a money judgment under the 1981 contract. AGI also alleged breach of contract, trade secret misappropriation and tortious interference. In essence, AGI asserted that Sir-Tech S.I. appropriated to itself the trademark registration for the Wizardry name and logo, despite AGI’s co-ownership of the mark, and that the principals of Sir-Tech S.I. (Frederick Sirotek, Norman Sirotek and Robert Sirotek) reestablished themselves as Sirtech Canada and 1259190 Ontario, through which they continue to market and profit from the Wizardry product while depriving AGI of royalties or an accounting.

In a pre-answer motion, the Canadian defendants moved for dismissal of the second amended complaint pursuant to CPLR 3211 (a) (8). They asserted that the court lacked personal jurisdiction over them because AGI had not satisfied the prerequisites of New York’s long-arm statute. As relevant here, CPLR 302 (a) provides that a court may exercise personal jurisdiction over a nondomiciliary who

“1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or . . .
“3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
“(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
“(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce . . .

Supreme Court concluded that AGI had satisfied section 302 (a) (1) in that Sirtech Canada had allegedly entered into licensing agreements to market and sell Wizardry and related products in New York. The court noted that AGI produced sworn evidence that Sirtech Canada’s games were offered for sale in New York and had submitted an exhibit consisting of packaging which listed the games’ copyright as owned by Sirtech Canada. The court further concluded that AGI adequately alleged that Sir-Tech S.I., a New York corporation, assigned or transferred to Sirtech Canada the Wizardry trademark and copyrights along with the information necessary to develop the software for the games. AGI also furnished evidence that Sirtech Canada purchased its Web site domain name (www.sir-tech.com) from a New York resident, Sir-Tech S.I. Lastly, the court concluded that AGI, by producing records for the Ontario Ministry of Consumer and Commercial Relations, satisfactorily alleged that the principals of Sirtech Canada were the same as those of Sir-Tech S.I. and therefore were aware of the obligations and restrictions contained in the 1981 contract.

The Appellate Division modified and dismissed the complaint, stating that in Supreme Court, AGI did not raise CPLR 302 (a) (1) as a basis for long-arm jurisdiction and therefore did not preserve the issue (see 297 AD2d 834 [2002]). The Court went on to hold that AGI did not satisfy its burden under the tortious act provisions of CPLR 302 (a) (3) (i) and (ii). In resisting the defendants’ motion to dismiss the second amended complaint, AGI submitted abundant evidence to Supreme Court in support of its claims under CPLR 302 (a) (1). Indeed, the court centered its decision upon a host of allegations that the Canadian defendants, as successors of the New York corporation, continued to transact business in New York. We therefore conclude that AGI preserved its CPLR 302 (a) (1) argument. Moreover, we hold that its allegations are sufficient to bring its claim within CLPR 302 (a) (l). AGI’s allegations, if true, would establish that the Canadian defendants reincarnated themselves as successors to their New York business, and in their Canadian corporate capacity, continued to do business in New York in violation of their contractual obligations to AGI.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint reinstated.

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

Order reversed, etc.

      . In determining that it had personal jurisdiction over the Canadian defendants, Supreme Court ruled that AGI had satisfied CPLR 302 (a) (1) (transacting business in New York) but not the tortious act provisions of CPLR 302 (a) (3).

      . While the Appellate Division was considering the validity of the second amended complaint, Supreme Court allowed AGI to interpose a third amended complaint, which the Appellate Division dismissed on the ground that its dismissal of the second amended complaint constituted the law of the case (see 2 AD3d 1042 [2003]). AGI has appealed from the Appellate Division’s dismissal of the third amended complaint, which brings up for review as well that Court’s dismissal of the second amended complaint.

      . AGI’s complaint should be reinstated because it has met the requirements of CPLR 302 (a) (1). While AGI argues compellingly that its second amended complaint may well have satisfied the dictates of CPLR 302 (a) (3) (i) and (ii), we need not reach that question, considering that New York’s long-arm jurisdiction contains several bases, any one of which is sufficient to uphold the complaint (see McGowan v Smith, 52 NY2d 268 [1981]). Similarly, we do not address the question whether personal jurisdiction over the Canadian defendants may be based on the forum selection clause in the 1981 contract, or whether the third amended complaint (of which neither party informed the Appellate Division before that Court wrote its decision dismissing the second amended complaint) rendered moot both the second amended complaint and the Appellate Division decision dismissing it.


author: Ciparick, J.

text:
    [824 NE2d 953, 791 NYS2d 513]
    The People of the State of New York, Respondent, v T.J. Charles Hardy, Appellant.
    Argued January 6, 2005;
    decided February 17, 2005

      POINTS OF COUNSEL

      Legal Aid Society of Suffolk County, Inc., Appeals Bureau, Riverhead (Charles W. Manning and Robert C. Mitchell of counsel), for appellant.
    I. Appellant’s constitutional right to confrontation was violated when the prosecution introduced into evidence, over defense objection, codefendant’s plea allocution implicating appellant in the crime. (People v Thomas, 68 NY2d 194; Crawford v Washington, 541 US 36; American Trucking Assns. v Smith, 496 US 167; Chapman v California, 386 US 18; Griffith v Kentucky, 479 US 314; People v Martello, 93 NY2d 645; Brecht v Abrahamson, 507 US 619; People v Eastman, 85 NY2d 265; Wray v Johnson, 202 F3d 515; Hynes v Coughlin, 79 F3d 285.) II. Appellant’s right to confrontation was violated when the People elicited police testimony, over defense objection, that defendant became a suspect as the result of an out-of-court conversation with an individual who was not a witness at the trial. (Crawford v Washington, 541 US 36; Tennessee v Street, 471 US 409; Bruton v United States, 391 US 123; Douglas v Al

      abama, 380 US 415; People v Reynoso, 309 AD2d 769; People v Elliott, 256 AD2d 418; People v Martinez, 269 AD2d 608; People v Milligan, 309 AD2d 950; People v Jones, 280 AD2d 489, 305 AD2d 698; People v Singleton, 222 AD2d 719.)

      Thomas J. Spota, District Attorney, Riverhead (Glenn Green of counsel), for respondent.
    I. Even if the Supreme Court’s decision in Crawford v Washington (541 US 36 [2004]) were applied to this Court’s review of appellant’s conviction, any error was harmless. (Griffith v Kentucky, 479 US 314; People v A.S. Gold-men, Inc., 9 AD3d 283; Butler v McKellar, 494 US 407; Graham v Collins, 506 US 461; O’Dell v Netherland, 521 US 151; Yates v Aiken, 484 US 211; Teague v Lane, 489 US 288; Sawyer v Smith, 497 US 227; People v Breazil, 191 Misc 2d 817; Hutzenlaub v Portuondo, 325 F Supp 2d 236.) II. The trial court’s evidentiary ruling permitting the introduction of certain background testimony was proper. (People v Tosca, 98 NY2d 660; People v Till, 87 NY2d 835; People v Jenkins, 302 AD2d 247, 100 NY2d 583; People v Grzebyk, 253 AD2d 469, 92 NY2d 925; People v Callegari, 236 AD2d 551, 89 NY2d 1090; People v Glass, 259 AD2d 989, 93 NY2d 924; People v Wilson, 226 AD2d 241, 88 NY2d 997; Crawford v Washington, 541 US 36; Tennessee v Street, 471 US 409; People v Reynoso, 2 NY3d 820.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, the parties agree that the admission of a non-testifying codefendant’s plea allocution was subject to the requirements of the Sixth Amendment’s Confrontation Clause as recently articulated by the United States Supreme Court in Crawford v Washington (541 US 36 [2004]). We hold that, in light of Crawford, the trial court erred in admitting the plea allocution. Moreover, the error was not harmless beyond a reasonable doubt and therefore compels reversal.

Facts

On November 6, 1998, Jeanne Garcia and her husband, Joseph Garcia, parked their automobile alongside a river on Beaver Dam Road in Suffolk County. While picnicking in their car, two men in a light blue vehicle drove up beside them. One of the men exited the car, approached their vehicle, pointed a shotgun at Mr. Garcia’s head and demanded money. The other individual, wearing a mask, approached Mrs. Garcia. He opened her door, grabbed her purse and pulled her from the vehicle. The unmasked assailant then approached Mrs. Garcia and shot her in the face. The individuals left the scene and Mrs. Garcia ultimately returned to her vehicle. Police and an ambulance arrived and brought Mrs. Garcia to Brookhaven Memorial Hospital for treatment.

A police investigation of the shooting ensued. The police, however, failed to recover any physical evidence from the scene. A single latent fingerprint was recovered from the victims’ car. Subsequent analysis revealed that the print matched neither those of the victims nor of defendant. Video surveillance of the area revealed images of a light blue vehicle approach the Garcias and later depart. Mrs. Garcia initially gave a description of her attacker.

A confluence of investigative events ultimately led to defendant’s arrest. During the Beaver Dam investigation the police developed information connecting defendant to a local robbery at the home of Bristol and Loretta Francis (the Francis robbery). A 20 gauge shotgun was stolen from the victims’ home during this robbery. Additionally, the police connected defendant to the recent theft of a blue Oldsmobile, allegedly stolen a day or two before the Garcia attack. The police found the vehicle abandoned near defendant’s home. The gun and blue automobile were similar to those used in the Beaver Dam robbery.

Concomitantly, the police were investigating an unrelated robbery that occurred at a local Coastal gas station (the Coastal station robbery). A 20 gauge shotgun was used in that robbery as well. Defendant’s uncle—Vensel Daiquan Hardy—was one of two primary suspects in that robbery. Ultimately, as a result of the Coastal station investigation, the police recovered the 20 gauge shotgun stolen from the Francis home, and matching shotgun shells, from an abandoned white Oldsmobile. After the police recovered the weapon, Detective Pravetz of the Suffolk County Police Department interviewed defendant. Although the police had already recovered the weapon, Detective Pravetz questioned defendant as to the shotgun’s whereabouts. Defendant told the officer that his uncle, Vensel, had the weapon.

Finally, nine months after the Beaver Dam shooting, during the course of the investigation of another unrelated local home invasion, the police arrested Robert Quarles. Following his arrest Quarles told the police that defendant, along with defendant’s brother Janerio Hardy, had committed the Beaver Dam robbery. Quarles told police that defendant admitted that he “shot a lady in the face for $25.” Based on all this information, Detective Pravetz arrested defendant and his brother in January 2000 for the Beaver Dam shooting. A Suffolk County grand jury issued multicount indictments against both brothers for crimes stemming from the Beaver Dam incident.

Janerio elected to plead guilty to the robbery. In his plea allocution Janerio stated that he, along with another individual, robbed the Garcias, then retreated to “Daisy’s house” and divided the proceeds of the robbery. Defendant, however, proceeded to trial. Mrs. Garcia, testifying at the trial, was unable to identify defendant, but she described the circumstances surrounding the robbery and shooting. Her story matched the account Janerio Hardy gave in his plea allocution. The trial court, over defense counsel’s objection, permitted the People to read a redacted version of Janerio’s plea allocution into evidence. The People also called Robert Quarles to testify against defendant. Quarles indicated that he knew both defendant and Janerio, as friends. He testified that on November 6, 1998, the day of the Garcia shooting, he encountered both brothers at Daisy’s house. According to Quarles, defendant admitted to shooting a lady earlier that day.

In summation, the prosecutor made repeated reference to Janerio’s plea allocution. He also noted Quarles’ dubious credibility, stating that he “wouldn’t be so foolish as to presume that [the jury] might believe Robert Quarles’ testimony” without corroboration. The prosecutor argued to the jury that Janerio’s plea allocution “corroborates a great many offenses.” The prosecutor unequivocally told the jury that the allocution, “along with everything else, pulls it all together.”

The jury convicted defendant of attempted murder in the second degree, two counts of robbery in the first degree, two counts of assault in the first degree, and one count of robbery in the second degree. Following sentencing, defendant appealed. On appeal the Appellate Division modified defendant’s sentence and otherwise affirmed his conviction (1 AD3d 456 [2003]). A Judge of this Court granted defendant leave to appeal and we now reverse.

Application of Crawford

Prior to the United States Supreme Court’s decision in Crawford v Washington (541 US 36 [2004]), it was well settled that statements against an individual’s penal interest, though hearsay, were nevertheless admissible as an exception to the hearsay rule, under certain circumstances. Specifically, in People v Thomas (68 NY2d 194, 195 [1986]), we made clear that, “[statements contained in a plea allocution of a codefendant may, in limited circumstances, be received in evidence as a declaration against penal interest to establish an element of the crime charged against defendant.” It is now readily apparent, in light of Crawford, that Thomas no longer controls and must be overruled.

In Crawford, the Supreme Court departed from its own former jurisprudence and rejected the test it established in Ohio v Roberts (448 US 56 [1980]). The Roberts test allowed for the admission of certain statements, not subject to cross-examination, if those statements were found to be otherwise “rehable.” The Crawford court made clear that Roberts’ failure “to protect against paradigmatic confrontation violations” compelled its rejection (541 US at 60). Insofar as the Roberts test allowed judges to make reliability determinations, it was “fundamentally at odds with the right of confrontation” {id. at 61). Crawford therefore rejected Roberts and its progeny. Because this appeal was not yet final at the time the Supreme Court decided Crawford, defendant is entitled to invoke Crawford, and we are compelled to apply it (see Griffith v Kentucky, 479 US 314, 328 [1987]).

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right “to be confronted with the witnesses against him.” This explicit constitutional command makes clear that ex parte testimonial statements are “reliable,” and therefore admissible, only when the accused has an opportunity to cross-examine the declarant (see Crawford, 541 US at 59). Indeed, “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation” (id. at 69).

While the Crawford court refused to supply a definition of testimonial statements, it described plea allocutions as being “plainly testimonial” in nature (Crawford, 541 US at 64). Indeed, there can be little debate over whether a plea allocution of a nontestifying codefendant is “testimonial.” Therefore, the trial court’s admission of Janerio Hardy’s plea allocution constituted a violation of defendant’s Sixth Amendment right to confrontation. Indeed, both the People and defendant agree that Crawford applies here and that in light of Crawford’s application, the trial court erred in admitting the plea allocution statement into evidence. The only dispute between the parties is whether the error was reversible or harmless beyond a reasonable doubt.

Harmless Error Analysis

Confrontation Clause violations are subject to a constitutional harmless error analysis (see People v Eastman, 85 NY2d 265, 276 [1995]). Constitutional error requires reversal unless the error’s impact was “harmless beyond a reasonable doubt” (id. at 276; Schneble v Florida, 405 US 427, 430 [1972]). This determination is based on a review of the “entire record” (see Eastman, 85 NY2d at 276). Ultimately, “however overwhelming may be the quantum and nature of other proof, the error is not harmless ... if ‘there is a reasonable possibility that the . . . [error] might have contributed to the conviction’ ” (People v Crimmins, 36 NY2d 230, 240-241 [1975], quoting Fahy v Connecticut, 375 US 85, 86 [1963]; Chapman v California, 386 US 18, 23 [1967]). A review of the entire record here makes clear that reversal is required.

The only evidence directly inculpating defendant was the testimony of Robert Quarles, who had a long criminal history, regarding defendant’s alleged admission. Other than the victims, there were no eyewitnesses to the shooting. Moreover, Mrs. Garcia never identified defendant as her assailant. In fact, her initial description of the assailant conflicted with defendant’s actual appearance. It is obvious that Janerio’s plea allocution was used precisely to stitch all the evidence together, both direct and circumstantial, in order to secure a conviction, and compel the jury to convict.

The allocution corroborated most of the People’s evidence, including the date and chronology of the Beaver Dam shooting. The redacted allocution submitted to the jury described the robbery in great detail. According to Janerio’s recitation, he was wearing a mask when he, along with another individual, robbed an elderly couple on Beaver Dam Road. His account was nearly identical to Mrs. Garcia’s description of the robbery. Janerio described grabbing Mrs. Garcia’s purse, while the other individual confronted Mr. Garcia. He also claimed that after the robbery he and the other individual retreated to Daisy’s house, where they split the money. Similarly, Quarles noted meeting defendant and Janerio at Daisy’s house the day of the robbery, where defendant admitted to shooting “a lady in the face for $25.”

The prosecutor’s own summation illustrates how important the allocution was to the People’s case. By the People’s own account, Janerio’s statements corroborated most of the evidence they presented. The prosecutor expressly informed the jury that the allocution, “along with everything else, pulls it all together.” The People’s heavy reliance on the allocution creates a reasonable possibility that its admission and subsequent exploitation by the prosecutor contributed to the verdict.

In addition, it is obvious that, despite County Court’s instruction indicating that the allocution was to be used solely to establish that the robbery “was committed by two people each aiding the other,” the jury relied heavily on it in finding guilt as to all counts. The jury’s reliance on the allocution is evidenced by its repeated requests that it be read back along with the testimony of Mr. Quarles and Mrs. Garcia. Consequently, the error was not harmless beyond a reasonable doubt (see Eastman, 85 NY2d at 276; Crimmins, 36 NY2d at 237).

In light of our determination, we need not reach defendant’s other claims.

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

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

Order reversed, etc.

      . Her description differed from the defendant’s actual appearance. She never identified defendant as one of the attackers, either in court or out of court.

      . Quarles’ extensive criminal background was established at defendant’s trial. He testified against defendant in exchange for a reduced sentence in a pending matter.

      . Despite the People’s assertion, the record makes clear that defense counsel made a timely and specific objection to the People’s use of the plea allocution. Counsel objected and claimed that the admission of Janerio’s plea allocution, without being subject to cross-examination, violated defendant’s Sixth Amendment rights. The specific and timely objection preserved the issue for our review.