text:
    [924 NE2d 801, 897 NYS2d 693]
    In the Matter of Lighthouse Pointe Property Associates LLC, Appellant, v New York State Department of Environmental Conservation et al., Respondents.
    Argued January 5, 2010;
    decided February 18, 2010

      POINTS OF COUNSEL

      Knauf Shaw LLP, Rochester (Alan J. Knauf, Linda R. Shaw, Amy Reichhart and Dwight Kanyuck of counsel), for appellant.
    I. The definition of “brownfield” has a low threshold. (Parker v Scrap Metal Processors, Inc., 386 F3d 993; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382; State of New York v Shore Realty Corp., 759 F2d 1032; Matter of East Riv. Realty Co., LLC v New York State Dept. of Envtl. Conservation, 22 Misc 3d 404; Building & Constr. Trades Council of Buffalo, N.Y. & Vicinity v Downtown Dev., Inc., 448 F3d 138; Matter of Destiny USA Dev., LLC v New York State Dept. of Envtl. Conservation, 63 AD3d 1568; Buffalo Dev. Corp. v New York State Dept. of Envtl. Conservation, 23 Misc 3d 1129[A], 2009 NY Slip Op 51001[U]; Matter of HLP Props. LLC v New York State Dept. of Envtl. Conservation, 21 Misc 3d 658.) II. The New York State Department of Environmental Conservation misinterprets title 14 of ECL article 27 by equating “may complicate” to “requires remediation.” (Knight v Amelkin, 68 NY2d 975; Matter of Toys “R” Us v Silva, 89 NY2d 411; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Matter of KMO-361 Realty Assoc. v Davies, 204 AD2d 547, 84 NY2d 811; Matter of Nilsson v Department of Envtl. Protection of City of N.Y., 28 AD3d 773, 8 NY3d 398; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; Matter of Evans v Tax Appeals Trib. of State of N.Y., 199 AD2d 840; Matter of SIN, Inc. v Department of Fin. of City

      of N.Y., 71 NY2d 616; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382.) III. Respondents can only rely on their actual administrative decision to exclude solid waste, which is contrary to the statute. (Matter of Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y.,75 NY2d 997; Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Destiny USA Dev., LLC v New York State Dept. of Envtl. Conservation, 19 Misc 3d 1144[A], 2008 NY Slip Op 51161[U], 63 AD3d 1568; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382; Matter of Yarbough v Franco, 95 NY2d 342; Matter of Millpond Mgt., Inc. v Town of Ulster Zoning Bd. of Appeals, 42 AD3d 804; B.F. Goodrich Co. v Murtha, 958 F2d 1192; B.F. Goodrich v Betkoski, 99 F3d 505.) IV New York State Department of Environmental Conservation has acted contrary to its own prior decision-making. (Knight v Amelkin, 68 NY2d 975; Matter of Callanan Indus. v Rourke, 187 AD2d 781; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Citizens’ Envtl. Coalition, Inc. v New York State Dept. of Envtl. Conservation, 57 AD3d 1279.)

      Andrew M. Cuomo, Attorney General, Albany (Denise A. Hartman, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
    I. The Department of Environmental Conservation’s well-reasoned determination denying petitioner’s acceptance into the Brownfield Cleanup Program should be confirmed. (377 Greenwich LLC v New York State Dept. of Envtl. Conservation, 14 Misc 3d 417; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219; Matter of Village of Scarsdale v Jorling, 91 NY2d 507; Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382; Matter of Binghamton-Johnson City Joint Sewage Bd. v New York State Dept. of Envtl. Conservation, 159 AD2d 887; Matter of East Riv. Realty Co., LLC v New York State Dept. of Envtl. Conservation, 22 Misc 3d 404; Matter of HLP Props. LLC v New York State Dept. of Envtl. Conservation, 21 Misc 3d 658.) II. The “working definition” that petitioner proposes must be rejected. (Matter of East Riv. Realty Co., LLC v New York State Dept. of Envtl. Conservation, 22 Misc 3d 404.) III. The Department of Environmental Conservation did not base its determination on the fact that petitioner’s property is a former solid waste landfill. IV If the Court holds that the Department of Environmental Conservation employed an improper construction of the statute, it should remand to the agency for reconsideration in light of the Court’s decision. (Matter of Rhino Assets, LLC v New York City Dept. for the Aging, SCRIE Programs, 31 AD3d 292; Matter of Eastern Pork Prods. Co. v New York State Div. of Hous. & Community Renewal, 187 AD2d 320; Klostermann v Cuomo, 61 NY2d 525.)
   OPINION OF THE COURT

Read, J.

Petitioner Lighthouse Pointe Property Associates LLC (Lighthouse) commenced this CPLR article 78 proceeding to challenge the decision by the New York State Department of Environmental Conservation (DEC or the Department) to deny its requests for acceptance of certain real property into the Brownfield Cleanup Program (BCP). For the reasons that follow, we conclude that DEC acted arbitrarily and capriciously and contrary to law when it determined that the real property addressed in Lighthouse’s requests did not fall within the statutory definition of a brownfield site.

I.

In 2003, the Legislature enacted a new title 14 of article 27 of the New York State Environmental Conservation Law to promote the voluntary cleanup, reuse and redevelopment of brownfields through the BCF to be administered by DEC (see L 2003, ch 1 [eff Oct. 7, 2003]). The Legislature found “that there are thousands of abandoned and likely contaminated properties that threaten the health and vitality of the communities they burden, and that these sites, known as brownfields, are also contributing to sprawl development and loss of open space” (ECL 27-1403). As the Division of the Budget put it when endorsing the legislation,

“[b]rownfields are abandoned, idled, or under-used properties where redevelopment is complicated by real or perceived environmental contamination . . . [and they] often pose not only environmental, but legal and financial, burdens on communities. Left vacant, contaminated sites can diminish the property value of surrounding property and threaten the economic viability of adjoining properties. The impediments to brownfield redevelopment are complex . . . The existing liability scheme, which holds all owners of contaminated property liable for cleanup costs, regardless of when or how the property was acquired relative to the contamination, contributes to the reluctance of developers to purchase even minimally contaminated sites. So, too, does the potential cost of cleanup, which may not be known at the time of purchase. In addition, lenders are often reluctant to extend credit for the purchase and cleanup of brownfield sites, fearing future liability or diminution of the value of the property held as collateral should the site prove to require more extensive and costly cleanup than initially thought. Consequently, financing such a purchase may be more difficult than financing a purchase of a greenfield site” (Budget Report on Bills, Bill Jacket, L 2003, ch 1, at 38).

The BCP broadly defines the term “brownfield site” as “any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant” (ECL 27-1405 [2] [emphases added]). “Contaminant” is defined as “hazardous waste and/or petroleum as such terms are defined in [ECL 27-1405]” (ECL 27-1405 [7-a]); and “hazardous waste,” in turn, includes hazardous waste as defined in ECL 27-1301 (see ECL 27-1405 [17], referencing ECL 27-1301; see also ECL 27-1301 [1], referencing ECL 27-0903 [“Identification and listing of hazardous waste”] and ECL 37-0103 [“Lists of substances hazardous or acutely hazardous to public health, safety or the environment”]). There are statutory exclusions from the definition of the term “brownfield site,” notably including certain properties listed in the State’s Registry of Inactive Hazardous Waste Disposal Sites (the Registry), a hallmark of the State’s Superfund Program, or properties included on the National Priorities List, comprising designated federal Superfund sites (see ECL 27-1405 [2] [a], [b]).

“A person who seeks to participate in [the BCP] shall submit a request to [DEC]” on forms devised by the Department, and shall provide therein information “sufficient to allow [DEC] to determine eligibility and the current, intended and reasonably anticipated future land use of the site” (see ECL 27-1407 [1]). There are enumerated restrictions on eligibility (ECL 27-1407 [8], [9]). Among them is the direction that DEC “shall reject” any request that it “determines ... is for real property which does not meet the requirements of a brownfield site as defined in . . . title [14]” (ECL 27-1407 [8] [a]).

An applicant must enter into an agreement with DEC to conduct an investigation to assess the nature and extent of contamination at the brownfield site (ECL 27-1409, 27-1411), and must devise and carry out a “remedial program” that DEC judges to be “protective of public health and the environment” (ECL 27-1415 [1], [2]). DEC issues a written certificate of completion to the applicant once the site has been cleaned up in accordance with the applicable remedial requirements (ECL 27-1419 [3]); the certificate is transferrable to an applicant’s successors or assigns (ECL 27-1419 [5]). Further, the certificate qualifies the applicant to receive a liability release and covenant not to sue from the State of New York, which “run[s] with the land” (ECL 27-1421 [1], [3]), as well as financial benefits (Tax Law §§ 21, 22 [b]; § 23 [a]). Public notice and opportunities for citizen participation are integral features of the BCP at every stage, from the request to participate to issuance of the certificate (ECL 27-1417).

The statute directed DEC to develop tables of numeric and contaminant-specific soil cleanup objectives (SCOs) that protect public health and the environment and do not exceed specified risk levels based on three types of land use—unrestricted (residential), commercial, and industrial (ECL 27-1415 [6]; see also 6 NYCRR subpart 375-6). Further, the BCP affords applicants the flexibility to employ the tables or site-specific criteria to determine acceptable levels of residual contamination, based on four different cleanup “tracks.”

As originally enacted, the most significant financial incentive available to an applicant—the brownfield redevelopment tax credit—ranged from 10% to 22% of covered costs. This tax credit consists of a “site preparation credit component” (costs to get the site ready for cleanup and redevelopment, except for the cost of acquiring the real property) (Tax Law § 21 [a] [2]; [b] [2]); a “tangible property credit component” (the cost of erecting commercial, industrial or recreational buildings) (Tax Law § 21 [a] [3]; [b] [3]); and an “on-site groundwater remediation credit component” (Tax Law § 21 [a] [4]; [b] [4]).

Early on, DEC estimated the value of tax credits—“[a]mong the most powerful incentives established by” the BCP—to be “approximately $135 million when . . . fully effective” (Desnoyers and Schnapf, Environmental Remediation Process Is Undergoing Sweeping Changes Mandated by New Brownfields Law, 76 NY St BJ [No. 8] 10, 20-21). As it turned out, since the tangible property credit component “potentially amount[ed] to as much as 22 percent of the total cost of development of the project,” sites with minimal contamination but high development costs were eligible for “very large tax credits with a relatively small investment” in cleanup costs (Block and Cur-ran, Construction Law, Brownfields Cleanup: Case Law, Amendments May Modify Program, NYLJ, Mar. 12, 2008, at 5, col 3).

In June 2008, the State Comptroller estimated that “[t]he outstanding tax credit liability for all projects [then] enrolled in the BCP . . . [was] potentially as high as $3.1 billion” (Thomas P. DiNapoli, New York State Comptroller, Overview of the New York State Brownfields Cleanup Program, at 9 [June 2008] [available at http://www.osc.state.ny.us/reports/environmental/ brownfields08.pdf (cached at http://www.nycourts.gov/reporter/ webdocs/brownfields08.pdf)]). Indeed, “[s]everal projects [had] accrued tax credits in excess of $100 million [causing] the New York State Division of the Budget” to “express[ ] concern that the [BCP might] pose a significant financial risk to the state” (id. at 2).

These financial misgivings caused the Legislature to include a 90-day moratorium on the acceptance of new sites into the BCP as part of the enacted state budget for fiscal year 2008-2009, and subsequently to enact amendments revamping the brownfield redevelopment tax credit for applicants accepted into the BCP after June 23, 2008 (see L 2008, ch 390, §§ 1, 2). The amendments restructured the tax credits so as to encourage more thorough cleanups while reducing the State’s financial exposure. First, the Legislature tied the percentage of remedial costs (i.e., the site preparation and groundwater remediation credit components) available to the level of cleanliness achieved, ranging from a high of 50% for soil cleanups allowing for unrestricted use to a low of 22% for track 4 soil cleanups for industrial use (ECL 27-1419 [3]). Importantly, the Legislature capped the tangible property credit component, which captures development costs, to the lesser of $35 million or three times remedial costs; or, for sites used primarily for manufacturing activities, to the lesser of $45 million or six times remedial costs (Tax Law § 21 [3-a]).

The BCP replaced the Voluntary Cleanup Program (VCP), an administrative initiative inaugurated by DEC in late 1994 to accommodate “developers and landowners with contaminated but otherwise marketable property [who] sought government review and ‘sign-off of cleanup plans so that they could access financial backing and be freed from worry over potential legal actions under the State’s pollution and hazardous waste laws” (Testimony of Peter Grannis, Commissioner, New York State Department of Environmental Conservation, before the New York State Senate and Assembly Standing Committees on Environmental Conservation, Aug. 27, 2007). The VCP offered no financial incentives; however, upon completion of a DEC-sanctioned cleanup, a participant in the VCP received a waiver of liability from DEC—i.e., the waiver did not bind other state agencies or the State Attorney General. Despite its perceived shortcomings, the VCP “evolved into a well-recognized way for property owners to obtain official sanction for their cleanups” (Gerrard, Environmental Law, N.Y. Brownfields Program Buffeted by Legislature, Courts, NYLJ, July 25, 2008, at 3, col 1), which paved the way for redevelopment and reuse of their property.

II.

Lighthouse plans to redevelop land located along the Genesee River in Monroe County “into a vibrant, pedestrian-friendly and attractive $250 million mixed-use waterfront development, including condominiums, townhouses, a marina, restaurants, retail stores and a hotel.” Most of the land, situated within a 100-year flood zone, encompasses what was historically a marsh area and is largely vacant. The occupied portions are used primarily for boat storage and parking. Lighthouse divided the land into two development parcels (collectively referred to as the properties): the 22-acre Riverfront Site, bordering the east side of the Genesee River in the Town of Irondequoit and the City of Rochester, close to the confluence of the Genesee River and Lake Ontario; and the 25.4-acre Inland Site, near the east side of the Genesee River.

Most of the Inland Site is located within the footprint of a city landfill that operated from the 1930s until at least 1960 and possibly into the 1970s. The landfill served as a depository for residential refuse, ash, slag, construction debris, and sewage sludge from a now demolished wastewater treatment plant operated on a portion of the Inland Site for approximately 60 years. In 1980, DEC listed the landfill in the Registry. DEC delisted the landfill in 1994; however, in 1998, DEC included it in a database of hazardous substance waste disposal sites that did not qualify for the Registry simply because hazardous waste, as that term of art was then defined by statute and regulation, was not discarded there.

The Riverfront Site contains industrial waste, construction debris, sewage sludge, and residential refuse as fill material. A marina currently operates on a portion of it. In the early 2000s, the New York State Department of Transportation (DOT) replaced the Stutson Street Bridge across the Genesee River, which is accessed from the Riverfront Site. DOT also built a new road, which runs through the location of the former landfill on the Inland Site. DOT’S project involved substantial excavation, and DEC permitted DOT to redeposit excavated material (an estimated 3,400 tons) within the Riverfront Site, properly covered. Testing of the excavated material for lead revealed that 6 of 93 soil samples failed the Toxicity Characteristic Leaching Procedure test, which is used to determine whether a solid waste is a hazardous waste because it exhibits the toxicity characteristic (see 6 NYCRR 371.3 [e]).

In 2006, Lighthouse filed two requests for acceptance into the BCI] one for the Riverfront Site and the other for the Inland Site. Those requests were supported by a remedial investigation report prepared by Lighthouse’s environmental consultant. For both sites, Lighthouse summarized the consultant’s report as follows:

“Exceedances of the draft BCP restricted use residential SCOs were observed across the Site[s] in waste material and soil. Exceedances of NYS Ambient Water Quality Standards and guidance values were observed at all monitoring wells for metals. Additional well development and sampling was recommended. Soil vapor levels are elevated for VOCs [volatile organic compounds] and methane in areas of waste disposal. These levels will need to be addressed prior to residential development.”

The consultant recommended various remedial measures, including site preparation by trained workers; vapor barriers and soil gas venting to prevent exposure to methane and other soil vapors; pavement and landscaping to address direct contact exposures; deed restrictions on groundwater use and soil/fill management; operation, maintenance and monitoring of the soil vapor collection system; preloading where filling occurred so as to reduce differential settlement; and foundation design to ensure future structural stability for all proposed structures. The cost to remedy the properties was estimated to range from $4 million to $8 million. By contrast, the total assessed value of the Riverfront Site was $1.3 million, and the total assessed value of the Inland Site was $1.2 million.

In June 2007—after Lighthouse submitted a letter demanding that DEC issue its long overdue decision—DEC denied the requests on the general ground that the properties were not brownfield sites within the meaning of ECL 27-1405 (2). DEC explained its decision as follows:

“The Department reviewed the data and materials submitted with the applications . . . While there are some exceedances of the restricted residential [SCOs] contained in 6 NYCRR Subpart 375-6, for the most part, sampling results indicate levels that are well within [them]. There is no indication that contaminants as defined in ECL 27-1405.7 and 6 NYCRR Part 375-1.2 (g) (i.e. hazardous waste or petroleum) are present at levels that would complicate the redevelopment or reuse of this property, nor is there any indication that there is a source of such contaminants. Rather, it is likely that any ex-ceedances of SCO’s or other standards are attributable to solid waste disposal. Pursuant to 6 NYCRR 37[5]-3.3 (a) (3) (ii), the Department does not consider material other than contaminants as defined under ECL Article 27, Title 14 in making a determination as to eligibility for the BCP
“The Department recognizes that large portions of this property were formerly used as solid waste landfills, and that redevelopment of these properties is complicated by such prior use, given that methane gas is present and that odors, leachate seeps and soil stability present engineering concerns. However, these complicating factors are typical of solid waste landfills rather than specific sources of hazardous waste or petroleum contamination. For purposes of the BCP applications, there is no reasonable basis to believe that contamination or the potential presence of contamination, as defined in ECL Article 27, Title 14 and the regulations promulgated thereunder, is complicating the redevelopment or reuse of the property.”

On July 26, 2007, Lighthouse brought this lawsuit against DEC, its Commissioner, and the Director of the Division of Environmental Remediation, asking Supreme Court to annul DEC’S determination and order the agency to grant its requests for acceptance into the BCE The Town of Irondequoit and the City of Rochester, both named as necessary parties, supported Lighthouse, as did Monroe County, which appeared amicus curiae.

First, Lighthouse emphasized the expansive statutory definition of the term “brownfield site” (i.e., “any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant” [emphases added]). With respect to the contaminants at the Riverfront Site, Lighthouse pointed out that its consultant’s report “show[ed] exceedances of the restricted use residential SCOs . . . for numerous hazardous wastes, including benzo(a)anthracene, benzo(a)pyrene, benzo(b)flouranthene, lead and mercury.” Further, “[l]ead contamination on the Riverfront Site [was] as high as seven times the SCO standard”; and “[e]xceedances of ambient water quality standards, guidance values and background levels were observed at til groundwater monitoring wells,” and included elevated levels of 18 metals. As for the Inland Site, testing revealed exceedances of the restricted use residential SCOs for numerous hazardous wastes, as well as exceedances of ambient water quality standards, guidance values and background levels at all groundwater monitoring wells. Moreover, soil vapor probes confirmed the presence of volatile organic compounds in excess of the United States Environmental Protection Agency’s generic screening criteria for health risks for numerous hazardous substances, as well as high concentrations of explosive methane.

Second, Lighthouse stressed that contamination had stymied redevelopment of the properties. When the present owner of the largest portion of the Inland Site sought to develop the area of the former city landfill, DEC and the Monroe County Department of Public Health (MCDPH) objected. And in 2005, the MCDPH took the position that the Inland Site should never have been delisted by DEC, and that while “it may be possible to develop the site in a way that will be protective of human health . . . the only acceptable way to accomplish this is for the developer [i.e., Lighthouse] to participate in [DEC’s] Brownfield Cleanup Program.”

On December 4, 2007, DEC answered, and asked Supreme Court to dismiss Lighthouse’s petition. DEC relied principally on the affidavit of the staff environmental engineer who recommended denying Lighthouse’s requests for acceptance into the BCE He opined that the “exceedances of soil and groundwater cleanup standards” at the properties were “limited in number compared with the large amount of data available”; and that “[t]he exceedances revealed by both historical and current sampling data were few in number, limited in magnitude, and widely dispersed.” As a result, “[t]aken as a whole, the data [did] not indicate the presence of contamination at the [Riverfront and Inland Sites] in quantities or concentratidns sufficient to require remediation.”

Regarding exceedances of groundwater standards for metals, the DEC engineer surmised that turbidity in the samples might have compromised the data’s reliability. Similarly, “[s]ince turbidity levels of til groundwater samples [were] high, there is a potential that the [semi-volatile organic compounds] detected were from sediments in the groundwater sample, and may not be representative of groundwater quality.” He took the position that the levels of polyaromatic hydrocarbons in soil and waste samples did “not indicate soil contamination that would require remediation . . . [but instead] reflect[ ] the level[s] . . . that are generally found in urban areas near asphalt pavement and railroads, as products of automobile exhaust, and as incomplete combustion products from coal”; and that the highly contaminated lead sample was an outlier. Finally, he added, the “highest values [of volatile organic compounds] in soil vapor were encountered . . . where there are no current structures. Whether indoor air in a structure later constructed in that area would pose a potential health risk cannot be determined from these exceedances.”

The DEC engineer reasoned that “[b]y far the major factor impeding development of the property is its former use as a municipal solid waste landfill which was sited in a former wetland.” For example, “[p]utrescible wastes in a typical municipal landfill have poor load bearing characteristics and settle at differential rates because of decaying refuse.” He summed up by explaining that he had recommended denial of Lighthouse’s requests for acceptance into the BCP because, based on his analysis of the data,

“the quantities and concentrations of contaminants in soil, groundwater and soil vapor did not indicate the need for remedial action; . . .
“redevelopment of the property is not complicated by the presence of contaminants; and
“what complicates redevelopment of the property is its status as a former solid waste landfill, which is not a qualification for eligibility for the BCE”

In reply, Lighthouse submitted several affidavits to dispute DEC’s verdict that the presence of contaminants at the properties did not call for remedial action, or complicate redevelopment. For example, its consultant’s engineer claimed that DEC’s engineer’s conclusion that the sampling data indicated minimal contamination, not requiring cleanup, was “completely inconsistent with how [DEC] normally addresses sites with similar contamination,” and gave illustrations.

A veteran real estate attorney and Lighthouse partner acknowledged that extra costs would be incurred “due to unstable ground . . . [because of] the presence of solid waste in the Landfill, and because the entire port area is a historic marsh area . . . filled over the last two centuries”; and that Lighthouse understood that it would “be necessary to vent off methane gas generated by degeneration of waste in the Landfill.” He maintained, however, that there was “no question that the Project is feasible, would get financed, and could proceed if these were the only issues”; and that what prevented Lighthouse from going forward was the presence of hazardous wastes at the Riverfront and Inland Sites. He noted that “[n]o one will finance [Lighthouse’s project]” absent “[DEC’s] approval of the investigation and remediation of hazardous wastes at the [properties], and a release of liability” because “[otherwise the risks are too great for lenders, particularly due to the relative low value of property in Upstate New York compared to the rest of the country”; and that “the [MCDPH] continues to insist that [Lighthouse] undertake remediation, but there is no one to sanction it” since DEC “has disavowed jurisdiction” under the BCP

The owner of the largest portion of the Inland Site recounted his unsuccessful attempt to develop a residential project on his property, which failed primarily because “government regulators, particularly the [MCDPH], which had to approve any subdivision . . . , believed that hazardous substances were present in the landfill, and this presented an unacceptable risk to residents who would purchase houses.” Further, “financing institutions were unwilling to take the risk of placing a mortgage . . . because of the threat that residents would be exposed to toxic chemicals that could cause cancer.”

And finally, the chief executive officer of a national brownfield redevelopment firm, which had secured a $23 million conditional loan commitment from a California-based financier of brownfield redevelopments to pay for remedial measures and site preparation at the properties, averred that “the paramount issue affecting the Project is the threat of uninsurable, open-ended environmental liability associated with the [properties]”; and that unless DEC “review[ed] and approve[d] the environmental investigations and remedial measures and grant[ed] an appropriate limitation of liability . . . neither brownfield redevelopers such as [his firm] nor brownfield financiers . . . [would] be willing to take on the multitude of other risks inherent in the Project.”

On December 20, 2007, Supreme Court granted the petition and ordered DEC to accept the properties into the BCP, discerning “no rational basis to conclude that the levels of contamination . . . were ‘minimal.’ ” The court rejected DEC’s argument that “SCO’s should have no bearing whatsoever in determining whether a site is initially admitted into the BCP yet these same standards should be the ultimate factor in determining whether an applicant receives a liability release after completion” of cleanup. In Supreme Court’s view, the phrases “may complicate” and “potential presence” signified that the Legislature “intended a low threshold for admission into the BCP” Further, an investor’s reluctance to invest absent DEC approval “would have to be seen as a possible complication to development,” despite the Department’s insistence to the contrary.

DEC appealed. On February 6, 2009, the Appellate Division, with one Justice dissenting, reversed Supreme Court’s judgment, on the law, and dismissed the petition. The majority concluded that “DEC’s well-reasoned analysis of the BCP applications of [Lighthouse], coupled with the mandate that we must not substitute our judgment for that of the DEC, compels the conclusion that the court erred in granting the petition and directing the DEC to accept petitioner into the BCP” (Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 61 AD3d 88, 94 [4th Dept 2009]). The dissenting Justice characterized DEC’s interpretation of the term “brownfield site” as “unreasonably narrow,” given the broad statutory language and the Legislature’s declaration of policy and findings of fact, both of which signaled an “intent to encompass a vast range of parcels that may be polluted” (id. at 96, 97). The Appellate Division subsequently granted Lighthouse’s request for permission to appeal to us (61 AD3d 1438 [4th Dept 2009]), and we now reverse.

III.

Because the BCP is meant to restore contaminated real property to productive use, DEC argues that the phrase “may be complicated” in the statutory definition of the term “brownfield site” is reasonably interpreted to mean that the property’s redevelopment or reuse may be complicated by the need for a cleanup, an environmental decision of which it is the sole arbiter; and here,

Further, DEC contends, once it determined that no cleanup was warranted, redevelopment or reuse of the properties was, by force of this circumstance alone, not “complicated” within the meaning of the statutory definition.

“[f]rom a perspective that only an expert can have, DEC found the exceedances on [Lighthouse’s] property to be relatively small in number and minimal in magnitude. Without the benefit of the agency’s expertise or perspective borne of experience, the courts lack any basis to substitute their own judgment for that of DEC.”

Courts “regularly defer to the governmental agency charged with the responsibility for administration of [a] statute” in those cases where interpretation or application “involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom,” and the agency’s interpretation “is not irrational or unreasonable” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]). But where

“the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight. And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (id.).

The meaning of the term “brownfield site” presents precisely such a “question ... of pure statutory reading.”

There are two constituents to the definition: the presence or potential presence of a contaminant on the real property; and this presence or potential presence must complicate the property’s redevelopment or reuse. The term “contaminant” is defined in the statute (see ECL 27-1405 [7-a]). The word “present” is not, but in common English usage means “being in one place and not elsewhere: being within reach, sight, or call or within contemplated limits: being in view or at hand: being before, beside, with, or in the same place as someone or something” (Webster’s Third New International Dictionary, Unabridged [Merriam-Webster 2002] [http://unabridged. merriam-webster.com (Feb. 7, 2010)]). Thus, a contaminant is present or potentially present on real property when it does or may exist or be found within the property’s limits; the statutory definition does not, on its face, mandate the presence of any particular level or degree of contamination. Finally, the word “complicate,” also undefined in the statute, in common English usage means “to make complex, involved, or difficult” (Webster’s Third New International Dictionary, Unabridged [Merriam-Webster, 2002] [http://unabridged. merriam-webster.com (Jan. 31, 2010)]). Accordingly, real property qualifies as a “brownfield site” for purposes of acceptance into the BCP so long as the presence or potential presence of a contaminant within its boundaries makes redevelopment or reuse more complex, involved, or difficult in some way.

This low eligibility threshold is consistent with the statute’s legislative history. The BCP legislation essentially addresses the unforeseen consequences of the government’s great success in imposing strict, joint and several liability for costly environmental cleanups on property owners; namely, this caused even marginally polluted property to become virtually unmarketable because of the chance that a cleanup of unknown dimension and expense might someday be required. Since there was great uncertainty about what remedial measures might satisfy environmental regulators, any property owner that unilaterally cleaned up contamination ran the risk that the government might, at a later time, consider the remedy implemented, perhaps at significant cost, to be inadequate. Under these circumstances, lenders were reluctant to finance development on property historically used for industrial or commercial purposes, which was or might be contaminated—as all such property was bound to be to some degree—because the value of their collateral might be threatened. As a result, former industrial and commercial properties languished, while development spread to unspoiled land.

With the BCP, the Legislature sought to alleviate these environmental and economic problems by providing a means for owners to gain DEC’s approval when they cleaned up their property, and to encourage them to do so by offering a release from liability and financial incentives. Notably, the BCP replaced and was intended to improve upon the success of the VCP, which was apparently a program of self-nominated participants. This, too, is consistent with our conclusion that the Legislature intended the definition of the term “brownfield site” to be interpreted as broadly as its words suggest.

In this case, the properties are concededly contaminated with multiple contaminants, often exceeding generally accepted cleanliness levels (the SCOs), and other environmental standards or criteria. And the Inland Site has for years been included in the DEC’s database of hazardous substance waste disposal sites. Further, Lighthouse has produced undisputed evidence demonstrating that the presence of contaminants at the properties has complicated redevelopment or reuse in several ways. First, the contamination at the Inland Site prevented the owner of the largest portion of it from developing a residential project; the MCDPH remains unwilling to sign off on any development at the Inland Site unless Lighthouse undertakes DEC-sanctioned remedial measures; and financing for redevelopment of the properties is contingent upon DEC’s approval of Lighthouse’s proposed investigatory and remedial measures and a release of liability.

We are mindful that DEC assures Lighthouse that the overall profile of contamination on the properties does not call for remedial action. But this does not relieve Lighthouse’s plight. The properties are contaminated. Without a release of liability, neither Lighthouse nor its prospective lender can be confident that regulatory views about the necessity for or the adequacy of any self-directed cleanup will not change sometime down the line. Although we might reach a different conclusion about whether redevelopment or reuse has been complicated by the presence of contaminants if DEC backed up its representations to Lighthouse with a release of liability, this is apparently impossible absent Lighthouse’s completion of a cleanup under DEC’s auspices in the BCP.

Finally, we do not remit this matter to the Department for further consideration in light of our decision, the alternative relief requested by DEC. The record in this case was sufficiently developed for Supreme Court to conclude, as it did, that, as a matter of law, Lighthouse was eligible for acceptance into the BCE (see Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 10 NY3d 846 [2008]; see also Matter of East Riv. Realty Co., LLC v New York State Dept. of Envtl. Conservation, 68 AD3d 564 [2009]; Matter of Destiny USA Dev., LLC v New York State Dept. of Envtl. Conservation, 63 AD3d 1568 [2009]).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated. The certified question should not be answered on the ground that it is unnecessary.

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

Order reversed, etc.

      . An “applicant” is “a person whose request to participate in the [BCP] . . . has been accepted by [DEC]” (ECL 27-1405 [1]).

      . A track 1 remedial program generally achieves a cleanup level and the SCOs appropriate for unrestricted residential use (as published in the relevant generic table) without reliance on any institutional (e.g., a deed restriction) or engineering (e.g., a clay cap or a groundwater pump-and-treat system) controls; a track 2 remedial program cleans up soils to meet the SCOs for commercial or industrial use (as published in the relevant generic tables), and may include institutional and/or engineering controls; a track 3 remedial program takes site conditions (such as depth to groundwater) into account to develop site-specific SCOs to be met; and a track 4 remedial program achieves a site-specific cleanup level protective of current, intended or reasonably anticipated residential, commercial, or industrial use with restrictions, and relies on institutional and engineering controls to do this (ECL 27-1415 [4]).

      . Other financial incentives include a tax credit for real property taxes for up to 10 years, calculated according to a formula that takes the number of employees at the site into account (Tax Law § 22 [b]), and a one-time insurance credit (Tax Law § 23 [a], [c]).

      . Lighthouse has entered into contingent agreements or options to purchase the land, except for those portions owned by the Town of Irondequoit and the City of Rochester.

      . Until enactment of the BCP in 2003, the definition of hazardous waste in ECL 27-1301 (1), applicable in the State’s Superfund Program, was limited to listed or characteristic hazardous waste, and so did not encompass DEC’S list of hazardous substances promulgated under article 37 of the ECL.


source: Caselaw Access Project

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

license: Public Domain

text:
    [925 NE2d 868, 899 NYS2d 66]
    The People of the State of New York, Respondent, v Mark Ochoa, Appellant. The People of the State of New York, Respondent, v Michael Figueroa, Appellant.
    Argued January 13, 2010;
    decided February 16, 2010

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Carol A. Zeldin and Robert S. Dean of counsel), for appellant in the first above-entitled action.
    I. Appellant was denied due process and a fair trial through the erroneous admission of numerous prior consistent statements of key prosecution witnesses, which improperly bolstered the People’s case and concomitantly undermined the defense. (People v McDaniel, 81 NY2d 10; People v McClean, 69 NY2d 426; People v Seit, 86 NY2d 92; People v Davis, 44 NY2d 269; People v Melendez, 55 NY2d 445; People v Ciaccio, 47 NY2d 431; People v Nicholson, 168 AD2d 574; People v Huertas, 75 NY2d 487; People v Crimmins, 36 NY2d 230; People v Brown, 98 NY2d 226.) II. The trial court committed reversible error by conducting an ex parte conference with a deliberating juror, in response to the juror’s note, in the absence of appellant and his counsel and without providing prior notice of the note to counsel. (People v Kisoon, 8 NY3d 129; People v O’Rama, 78 NY2d 270; Rogers v United States, 422 US 35; United States v Ronder, 639 F2d 931; People v Kadarko, 56 AD3d 102; People v Starling, 85 NY2d 509; People v Cain, 76 NY2d 119; People v Mehmedi, 69 NY2d 759; Snyder v Massachusetts, 291 US 97; French v Jones, 332 F3d 430.)

      Office of the Appellate Defender, New York City (Rosemary Herbert and Richard M. Greenberg of counsel), for appellant in the second above-entitled action.
    I. Michael Figueroa’s statutory and constitutional rights to presence and the assistance of counsel were violated when the trial court responded to the jury foreman’s note expressing discomfort reading “this verdict” in the absence of, and without prior notice to, Mr. Figueroa and his attorney. (People v O’Rama, 78 NY2d 270; People v Ciaccio, 47 NY2d 431; Snyder v Massachusetts, 291 US 97; People v Mehmedi, 69 NY2d 759; United States v Gagnon, 470 US 522; United States v Jones, 381 F3d 114; People v Mullen, 44 NY2d 1; Dallio v Spitzer, 343 F3d 553; People v Ramos, 99 NY2d 27; French v Jones, 332 F3d 430.) II. Michael Figueroa was denied due process and a fair trial as a result of the trial court’s erroneous admission of numerous prior consistent statements of the prosecution’s key witnesses. (People v Crimmins, 36 NY2d 230.)

      Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead, Joseph N. Ferdenzi and Karen Swiger of counsel), for respondent in the first and second above-entitled actions.
    I. Defendants were not deprived of their rights to be present and to the assistance of counsel when the trial court communicated with the jury foreperson in their and their counsel’s absence because the court’s action was ministerial. (People v Harris, 76 NY2d 810; People v Tarsia, 50 NY2d 1; People v O’Rama, 78 NY2d 270; People v Patterson, 39 NY2d 288; People v Agramonte, 87 NY2d 765; People v Bonaparte, 78 NY2d 26; People v Ciaccio, 47 NY2d 431; People v Hameed, 88 NY2d 232; People v Starling, 85 NY2d 509; People v Velasquez, 1 NY3d 44.) II. Defendants’ claim that the prosecution improperly elicited prior consistent statements is unpreserved as to Michael Figueroa and altogether meritless. (People v Romero, 7 NY3d 911; People v Tevaha, 84 NY2d 879; People v West, 56 NY2d 662; People v Love, 57 NY2d 1023; People v Buckley, 75 NY2d 843; People v Gray, 86 NY2d 10; People v Voliton, 83 NY2d 192; People v Iannelli, 69 NY2d 684; People v McClean, 69 NY2d 426; People v McDaniel, 81 NY2d 10.)
   OPINION OF THE COURT

Pigott, J.

Following a joint trial, defendant Mark Ochoa was found guilty of one count of robbery in the second degree, and defendant Michael Figueroa was convicted of two counts of robbery in the second degree and one count of criminal possession of a weapon arising from events that occurred in January of 2003.

Fernando Cruz had taken his video game console to Madeline Ruballo’s sixth-floor apartment, meeting up with defendants. According to later testimony, the four of them spent the night smoking crack cocaine. At some point, Cruz decided to take his console and leave. As Cruz approached the door, Figueroa pulled out a box cutter, reached for the console, and demanded that Cruz give it to him. Cruz and Figueroa began struggling and ended up on the sixth-floor landing. Ochoa then allegedly pulled Cruz’s jacket over his head, causing his wallet to fall to the floor. Figueroa took the console and fled, with Ochoa following. Cruz claimed over $200 was taken from his wallet as well.

Following their arrest, defendants were charged, on an “acting in concert” theory, with the crimes of robbery in the first degree, robbery in the second degree (two counts), robbery in the third degree (two counts), criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree.

Cruz and Ruballo testified at trial, and were subjected to vigorous cross-examination by defense counsel, who were able to elicit several inconsistencies in their testimony. Defense counsel impeached Cruz with false statements he had made in his two appearances before the grand jury, and confronted Ruballo with statements to police that she later admitted were untrue. The prosecutor’s redirect examination of those witnesses forms the basis of one of the issues raised on this appeal.

The other issue involves the trial judge’s handling of a note he received from the foreperson an hour after the jury had reached its verdict.

Prior to the judge’s receipt of that note, the jury had sent three other notes either asking for further instruction or advising the court that it was deadlocked. In each of those instances, the court ensured that defendants and counsel were present, read the note aloud, and then addressed its substance before the jury. The day of the verdict, the court received two more notes. The first, which was written at 1:25 p.m., stated, “Have reached a verdict.” The second, a personal note from the foreperson, was written at 2:20 p.m. and stated, “Your Honor, I do not feel comfortable reading this verdict.”

The judge met with the foreperson without informing defense counsel beforehand. However, immediately afterward, in open court, the judge explained:

“The Court has received two notes, one, they reached a verdict, which you know. You . . . gentlemen saw one personal note from the foreperson that he doesn’t feel comfortable reading the verdict. For the record, the Court asked the foreperson to come down, he sat right here and the foreperson was inquired into why he didn’t feel comfortable. He said, well, he didn’t want to go through and have to say what the verdict was, never telling me [the court] the verdict. I told him the way it works. The clerk asks him and says, Have you reached a verdict.
Yes. As to the first count on Mr. Figueroa, guilty or not guilty. As to the first count on Mr. Ochoa, and I explained to him how it goes and all he has to do is answer guilty or not guilty. And then he seemed relieved and he said, ‘Oh, okay, fine.’ ”

After being shown the foreperson’s note, neither defense counsel voiced an objection to the manner in which the court addressed the juror’s concern. Following the verdict, defense counsel requested that the jury be polled, and the foreperson stated that the verdict as to each defendant was his verdict. On appeal, both convictions were affirmed.

In Ochoa the Appellate Division rejected defendant’s argument that the prosecutor’s redirect examinations of Cruz and Ruballo constituted improper bolstering and further concluded, as to the foreperson’s note, that counsel’s failure to object or seek other relief from the court relative to the ex parte communication with the foreperson constituted a waiver of that argument (see People v Ochoa, 57 AD3d 342, 343-344 [1st Dept 2008]). One justice dissented and subsequently granted defendant leave to appeal to this Court.

In Figueroa, the Appellate Division addressed the juror note issue and held, as to the court’s ex parte communication with the foreperson, that its action was ministerial and therefore neither defendant nor defense counsel had a right to be present, and, in any event, counsel “was required to request a further inquiry of the foreperson or otherwise preserve a claim of error” (People v Figueroa, 48 AD3d 324, 325-326 [1st Dept 2008]). A Judge of this Court granted leave (12 NY3d 816 [2009]). We now affirm in both appeals.

Improper Bolstering Claim

The trial testimony of the two individuals who were present at the time of the crimes, and who testified against defendants, was not a model of consistency. Neither Cruz nor Ruballo wanted the police to know that they had been smoking crack cocaine with defendants the night of the incident. On cross-' examination by defense counsel, Cruz conceded that he testified before the grand jury that the robbery occurred as he and Ruballo walked into the building, that a bat was used during the incident, and that he had never associated with defendants prior to the incident—all of which was untrue. In an attempt to explain the inconsistency between his trial testimony and grand jury testimony, Cruz testified that he was “confused” by certain of the questions asked of him before the grand jury.

On redirect examination, the prosecutor sought to question Cruz about what he was “confused” about during his grand jury testimony. Counsel for Ochoa objected, stating that the prosecutor could not rehabilitate Cruz with a prior consistent statement. The trial court overruled the objection, and allowed the prosecutor to ask Cruz whether, at the time of his grand jury testimony, he was “confused” about what item he possessed on the day of the incident, whom he visited that day, how he was injured and who injured him.

We conclude that these questions on redirect were addressed to matters raised by defense counsel on cross-examination, and “did no more than to explain, clarify and fully elicit a question only partially examined by the defense” (People v Regina, 19 NY2d 65, 78 [1966]; see Prince, Richardson on Evidence § 6-501 [Farrell 11th ed]).

The prosecutor’s redirect examination of Ruballo was also proper. Defense counsel elicited testimony from Ruballo that she lied in her written statement to police when she stated that defendants followed her and Cruz into the building and mugged them, that one of the perpetrators took $50 from Cruz, and that Figueroa pushed her during the encounter.

On redirect, the prosecutor sought to clarify what was correct and incorrect about the statements. Ochoa’s counsel objected that a prior consistent statement could not be elicited except upon a claim of recent fabrication. Over defense counsel’s objection, the prosecutor elicited from Ruballo that the name on the statement was hers, and that the pedigree information, the apartment address and where the altercation occurred were correct. She also testified that, relative to the statement, the names of the perpetrators and the victim were correct, but that she lied when she stated that $50 had been taken, when she said that she and Cruz were attacked upon entering the building, and when she told police that Figueroa pushed her.

The prosecutor’s redirect examination did not constitute impermissible bolstering, as she was seeking merely to fill in the gaps that defense counsel left during cross-examination, after defense counsel implied that Ruballo’s entire statement to police was a lie. “Where only a part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination for the purpose of explaining or clarifying that statement” (People v Torre, 42 NY2d 1036, 1037 [1977], citing Regina, 19 NY2d at 70). Therefore, the trial court did not abuse its discretion in allowing the prosecutor to ask Ruballo to clarify which parts of her statement she claimed were true, and which were not true.

Juror’s Note

Defendants contend that the trial court’s failure to apprise defense counsel of the contents of the note prior to speaking with the foreperson, allow counsel an opportunity to be heard as to how to respond to the note, and permit defendants to be present during the court’s communication with the foreperson violated CPL 260.20 and 310.30. The former provision requires, with certain exceptions, that “[a] defendant must be personally present during the trial of an indictment.” The latter provision provides:

“At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.”

The purpose of the “notice” requirement is twofold. First, it ensures counsel’s presence when the court responds to the jury’s request for instructions or other information and, second, it “ensure[s] that counsel has the opportunity to be heard before the response is given” (see O’Rama, 78 NY2d at 277 [citations omitted]). Generally, a trial court’s failure to disclose the contents of a juror note, which effectively prevents defense counsel from meaningful participation in the proceedings, constitutes “a significant departure from the organization of the court or the mode of proceedings prescribed by law” (id. at 279 [citations and internal quotation marks omitted]).

The foreperson’s personal note was ambiguous and, given its language, could have been substantive. As such, it may have been more prudent for the judge to follow the procedures specified in O’Rama before responding to it. Nonetheless, we conclude that the judge acted within his discretion by seeking clarification of the note’s meaning before notifying defense counsel (see People v Lykes, 81 NY2d 767, 770 [1993]). The substance of the note related only to the foreperson’s concern about the manner in which that verdict was to be delivered, and thus was nothing more than an inquiry of a ministerial nature (see generally People v Hameed, 88 NY2d 232, 240-241 [1996]; People v Collins, 99 NY2d 14, 17-18 [2002]), unrelated to the substance of the verdict (see People v Harris, 76 NY2d 810, 812 [1990]). As a result, the judge was not required to notify defense counsel nor provide them with an opportunity to respond, as neither defense counsel nor defendant could have provided a meaningful contribution.

Accordingly, the orders of the Appellate Division relative to both appeals should be affirmed.

Jones, J. (dissenting).

Because I believe that the trial court committed reversible error with respect to the two issues before this Court, I respectfully dissent. I will first address the improper bolstering issue.

The majority, in describing the testimony of Cruz and Ruballo, states that it was “not a model of consistency” (majority op at 186). That is an understatement. The witnesses’ testimony before the grand jury and at the suppression hearing, statements given to the investigating police officers, and prior written statements were riddled with inconsistencies. As a result, both witnesses were impeached when cross-examined by defense counsel, thereby casting doubt on whether a robbery actually occurred.

Over the objection of the defense, the prosecutor was permitted to introduce the witnesses’ prior consistent statements under the guise of rehabilitation. The prosecutor, in the redirect examination of Cruz, questioned him about his prior statements which conformed to his trial testimony, asking him whether those statements were correct. Even more egregious, the prosecutor was permitted to go through Ruballo’s prior written statement given to the police “to clarify what’s incorrect and what is correct.” As pointed out in the Appellate Division dissent (People v Ochoa, 57 AD3d 342, 347 [1st Dept 2008]), by characterizing some allegations as false, the prosecutor implied that the remaining statements were true.

It is well settled that a witness who has been impeached cannot be rehabilitated by use of a prior consistent statement, unless the opposing party suggests that the witness’s account is a recent fabrication (see People v McDaniel, 81 NY2d 10 [1993]; People v McClean, 69 NY2d 426 [1987]; People v Davis, 44 NY2d 269 [1978]). In such a case, a consistent statement made before the motive to fabricate arose may be admissible (see McDaniel, 81 NY2d at 16; McClean, 69 NY2d at 428; Davis, 44 NY2d at 277-278). As stated by one commentator, “[e]ven when the witness’ credibility is attacked by proof of inconsistent statements, the witness’ credibility may not be supported by proof of consistent statements. . . . The inconsistency is not removed by the fact that the witness has also made consistent statements, and consequently the consistent statements may not be shown” (Prince, Richardson on Evidence § 6-503 [Farrell 11th ed]).

In rejecting defendants’ claims that the trial court permitted improper bolstering of the testimony, the majority calls this redirect examination proper rehabilitation. In support of this conclusion, they rely on People v Regina (19 NY2d 65, 78 [1966]) and People v Torre (42 NY2d 1036, 1037 [1977]), both of which can be distinguished from the instant case. In Regina, the prosecution witness was asked one question to clarify an answer given on cross-examination. On cross-examination, a detective was asked whether he made any notes “that night,” and he replied “[n]o” (19 NY2d at 77). On redirect by the prosecutor, the detective was asked if he had ever made any notes of the occurrence and he answered that he had done so three days later. In Torre, the Court held that where only part of a statement is drawn out on cross-examination, the other parts may be introduced on redirect examination so that the statement may be explained or clarified.

In the instant case, the court permitted improper bolstering. This was not a case of clarifying or explaining a statement only partially examined by opposing counsel. This was an attempt to recast the entire testimony of two witnesses who had given many versions of the crime and surrounding events.

The fact that the court permitted such bolstering by the prosecutor severely prejudiced the defendants and cannot be viewed as harmless error in a case in which the evidence was not overwhelming and depended on the credibility of two witnesses who were admitted drug users and in a place Ruballo described as a “crack house.” This error standing alone is a basis for reversal where preserved.

Next I turn to the issue of the juror note. By conducting an ex parte conference with a deliberating juror, in response to the juror’s note, without providing prior notice of the note to counsel, the trial court erred.

CPL 310.30 sets forth the procedure to be followed by the court when a note is received from a deliberating jury. The instruction is very clear and it would have been very simple for the court to have followed the dictates of this statute. The majority excuses the failure to do so by saying that the judge acted within his discretion and that this was “nothing more than an inquiiy of a ministerial nature” (majority op at 188, citing People v Hameed, 88 NY2d 232 [1996]). Hameed was wholly different from the case at bar. It involved a juror’s inquiry about whether he would be permitted to attend church while the jury was sequestered. It is the only case cited by the majority which is clearly a ministerial inquiry. None of the other cases relied upon by the majority are on point. They are cases in which defendant was not present but defense counsel was present or had an opportunity to have input in the jury instruction. In People v Lykes (81 NY2d 767 [1993]), the judge sent a note to the jury seeking clarification of its inquiry. Unlike the instant case, both defendant and defense counsel were given an opportunity to participate before any instruction was given to the jury. In People v Collins (99 NY2d 14 [2002]), the defendant was not present during the drafting of the verdict sheet but his counsel was present (see also People v Harris, 76 NY2d 810 [1990] [where the judge along with the prosecutor and defense counsel went to the door of the jury room and the judge asked whether the request for the readback of testimony was for the victim]).

Whether a jury note is a ministerial or substantive inquiry can vary depending on the circumstances of the particular case. In this case, where the note came one hour after the jury had announced that it had reached a verdict, following three days of deliberation and two notes declaring a deadlock, this court had every reason to believe that the verdict was a problem to at least one juror.

In addition, the action taken by the court cannot be justified by facts which come to light as a result of the inquiry. The court’s response must be driven by inferences which can reasonably be drawn before the inquiry is conducted. Under these circumstances it was error to fail to treat the note as a potentially “important, substantive juror inquiry” and thus apply the safeguards mandated by People v O’Rama (78 NY2d 270, 279-280 [1991]).

Accordingly, I would reverse the orders of the Appellate Division and remit to Supreme Court for retrial.

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

In each case: Order affirmed.


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

text:
    [925 NE2d 875, 899 NYS2d 73]
    David Wadler, Appellant, v City of New York et al., Respondents.
    Argued January 13, 2010;
    decided February 18, 2010

      POINTS OF COUNSEL

      Law Offices of Brad A. Kauffman, PLLC, New York City (Brad A. Kauffman of counsel), for appellant.
    I. Plaintiffs claim for common-law negligence is not barred by the firefighter rule. (Santangelo v State of New York, 71 NY2d 393; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423; Cooper v City of New York, 81 NY2d 584; Melendez v City of New York, 271 AD2d 416; Carter v City of New York, 272 AD2d 498; Grogan v City of New York, 259 AD2d 240; Byrnes v City of New York, 249 AD2d 352; Foley v City of New York, 43 AD3d 702; Pascarella v City of New York, 146 AD2d 61; Petendree v City of Yonkers, 270 AD2d 403.) II. The lower courts erred in their decisions. (Lupinsky v Windham Constr. Corp., 293 AD2d 317.) III. Plaintiffs motion to renew and reargue should have been granted. (People v Russo, 128 Misc 2d 876; Pro Brokerage v Home Ins. Co., 99 AD2d 971; Matter of Palmer, 193 Misc 411; Rodney v New York Pyrotechnic Prods. Co., 112 AD2d 410; Fitzpatrick v Cook, 58 AD2d 642; State of New York ex rel. Spence-Chapin Servs. to Families & Children v Tedeno, 101 Misc 2d 485; Turkel v I. M. I. Warp Knits, 50 AD2d 543; Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943; Cook v Schiff, 28 AD2d 514; Andre v Pomeroy, 35 NY2d 361.)

      Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal and Kristin M. Helmers of counsel), for respondents.
    Plaintiffs common-law negligence cause of action was barred by the firefighter rule. (Santangelo v State of New York, 71 NY2d 393; Cooper v City of New York, 81 NY2d 584; Pascarella v City of New York, 146 AD2d 61, 74 NY2d 610; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423; Williams v City of New York, 2 NY3d 352; Smullen v City of New York, 214 AD2d 508, 86 NY2d 705; Grogan v City of New York,
      259 AD2d 240; Jackson v City of New York, 251 AD2d 457; Hoey v Kuchler, 208 AD2d 805, 85 NY2d 803; Buckley v City of New York, 176 AD2d 207.)
   OPINION OF THE COURT

Smith, J.

We hold that the “firefighter rule,” which bars common-law negligence recovery by firefighters and police officers for injuries that result from risks associated with their employment, requires dismissal of this case, in which a police officer was injured by the negligent operation of a security device.

The parking lot of the New York City Police Headquarters in Manhattan is protected by an unusual kind of gate, apparently designed to thwart car bombs and similar forms of terrorism. The gate is a concrete barrier that can be retracted into the ground to allow entry to the lot. If it is necessary to stop an entering vehicle, the gate can be raised, automatically and quickly, with enough force to lift a car off the ground.

In this case, the gate apparently worked as it was designed to do. The driver of the car in question, however, was not a terrorist, but plaintiff, the commanding officer of the Police Commissioner’s liaison unit, who was arriving at his place of work. Plaintiff showed his credentials to one of the police officers guarding the lot. The barrier was lowered but then, accidentally, raised again while plaintiff was driving over it. The front of the car was lifted some four feet into the air, and plaintiff was injured.

Plaintiff sued the City and the Police Department for negligence. Supreme Court granted summary judgment to defendants (2008 NY Slip Op 30572[U]), relying on the firefighter rule, and the Appellate Division affirmed (57 AD3d 333 [2008]). We granted leave to appeal (12 NY3d 779 [2009]), and now affirm.

In Zanghi v Niagara Frontier Transp. Commn. (85 NY2d 423, 436 [1995]) we stated the firefighter rule: “[P]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment.” Since 1996, the rule has been applicable only in actions against a “police officer’s or firefighter’s employer or co-employee” (General Obligations Law § 11-106 [1]).

We decided in Zanghi that the rule bars an officer’s or firefighter’s recovery “when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury” (85 NY2d at 436). We explained:

“[W]here some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common-law negligence. By contrast, a common-law negligence claim may proceed where an officer is injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving that injury. For example, if a police officer who is simply walking on foot patrol is injured by a flower pot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the acts undertaken in the performance of police duties placed him or her at increased risk for that accident to happen. On the other hand, if an officer is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery in tort because the officer is specially trained and compensated to confront such dangers.” (Id. at 439-440.)

Zanghi's distinction between cases in which the plaintiff’s duties “increased the risk” and those in which they “furnish[ed] the occasion for” the injury has not proved easy to apply. Appellate Division and trial court cases on whether injuries resulted from risks “associated with the particular dangers inherent” in police work or firefighting are many, and hard to reconcile (see e.g. Tighe v City of Yonkers, 284 AD2d 325 [2d Dept 2001] [officer tripped over plate in street while walking to patrol car; firefighter rule not applied]; Carter v City of New York, 272 AD2d 498 [2d Dept 2000] [officer fell because of sidewalk defect while issuing summons; rule applied]; Simons v City of New York, 252 AD2d 451 [1st Dept 1998] [officer escorting complainant tripped over depression in roadbed; rule applied]; Poveromo v Avis Rent-A-Car Sys., 242 AD2d 467 [1st Dept 1997] [officer injured in police car that went over a metal bumper; rule applied] ; Olson v City of New York, 233 AD2d 488 [2d Dept 1996] [firefighter fell in pothole while dismounting from fire truck; rule not applied]; Siciliano v City of New York, 16 Misc 3d 1129[A], 2007 NY Slip Op 51630[U] [Sup Ct, Richmond County 2007] [officer fell in pothole while walking to vehicle; rule not applied]). But however difficult other cases may be, the application of the rule to this case seems straightforward.

The cause of the injury to plaintiff here—a high-security device protecting the police headquarters parking lot—was plainly a risk “associated with the particular dangers inherent” in police work. Ordinary civilians may encounter such devices, but police officers, whose duties may include working in secure areas that are at risk of a terrorist attack, are far more likely to do so. An act taken in furtherance of a specific police function— entry into a protected parking lot, which only plaintiffs police credentials allowed him to enter—exposed plaintiff to the risk of this injury.

Plaintiff emphasizes that at the time of his injury he was not “on duty”; his tour of duty was not to begin for another 10 minutes (though this did not prevent him from applying for benefits for a “line of duty” injury). Whether he was on duty or not is not dispositive; police officers often, by the nature of their jobs, face significant risks even when they are not technically at work (see Levine v Chemical Bank, 221 AD2d 175 [1st Dept 1995]; Campbell v Lorenzo’s Pizza Parlor, 172 AD2d 478 [2d Dept 1991]). What is dispositive is the nature of the risk. Plaintiffs claim is barred by the firefighter rule.

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

Jones, J. (dissenting).

I agree with the majority that the facts of this case are straightforward. However, because plaintiffs recovery is not barred by the “firefighter’s rule,” I respectfully dissent and would reverse the order of the Appellate Division.

Plaintiffs injuries were completely unrelated to the assumed risks of police duty and there were no actions taken by him that heightened his risk of injury. In Zanghi v Niagara Frontier Transp. Commn. (85 NY2d 423 [1995]), we stated:

“[W]here some act taken in furtherance of a specific police or firefighting function expose[s] the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common-law negligence. By contrast, a common-law negligence claim may proceed where an officer is injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving that injury” (85 NY2d at 439-440 [emphasis added]).

The plaintiffs in Zanghi—two firefighters injured while fighting a fire in a burning building, a police officer injured while confronting picketers, and two police officers injured as they raced to the assistance of a fellow officer—were clearly engaged in the performance of specific duties/functions that increased their risk of being injured. On the contrary, plaintiff here sustained injuries when another officer inadvertently raised a security barrier while he entered his workplace before his shift started. Simply put, this was not a risk associated with his job.

The majority’s decision in this case is wholly at odds with well-settled authority. For example, in Olson v City of New York (233 AJD2d 488 [2d Dept 1996]), the firefighter rule did not apply where a firefighter, after responding to a fire alarm, returned to the fire station, stepped down from a fire truck and was injured when he fell into a pothole in the driveway of the firehouse. The court held that nothing in the acts undertaken in the performance of his firefighter duties placed the injured plaintiff at increased risk for this accident to happen. Likewise, the firefighter rule did not apply in Delio v City of New York (8 AD3d 325 [2d Dept 2004]). In that case, plaintiff police officer was injured when a fellow officer closed a car door on plaintiff s hand. The court held that plaintiff was allowed to recover because his injuries were unrelated to the assumed risks of police duties. His duties merely furnished the occasion for his accident but did not heighten the risk of injury.

I disagree with the majority that these cases are hard to reconcile. In all of the cases cited by the majority where the claims were not allowed, the officers were on duty and performing police duties, even if routine, when they were injured. The Appellate Divisions have been applying Zanghi for nearly 15 years and their decisions should not be overturned so lightly.

Accordingly, I would reverse the decision of the Appellate Division and remit this case to Supreme Court for trial.

Judges Ciparick, Graffeo, Read and Pigott concur with Judge Smith; Judge Jones dissents and votes to reverse in a separate opinion; Chief Judge Lippman taking no part.

Order affirmed, with costs.