author:
Stein, J.
      Rivera, J,

text:
    [48 NE3d 58, 28 NYS3d 1]
    The People of the State of New York, Respondent, v Marcus D. Hogan, Appellant.
    Argued January 13, 2016;
    decided February 18, 2016

      POINTS OF COUNSEL

      Shirley A. Gorman, Brockport, for appellant.
    I. Mr. Hogan was deprived of the effective assistance of counsel when his assigned attorney failed to discuss his right to testify before the grand jury with him and then did not timely move to dismiss the indictment for insufficient notice of the grand jury proceeding. (People v Smith, 87 NY2d 715; People v Corrigan, 80 NY2d 326; People v Brumfield, 24 NY3d 1126; People v Colville, 20 NY3d 20; People v Evans, 79 NY2d 407; People v Ferguson, 67 NY2d 383; People v Petrovich, 87 NY2d 961; People v Helm, 51 NY2d 853; People v Wiggins, 89 NY2d 872; People v Simmons, 10 NY3d 946.) II. The drug factory presumption should not have been employed to convict Mr. Hogan of possessing cocaine because none of the qualifying circumstances were present. (People v Williams, 19 NY3d 100; People v Kims, 24 NY3d 422; People v Staley, 123 AD2d 407, 68 NY2d 1004; People v James, 266 AD2d 236; People v Galindo, 23 NY3d 719.)

      Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), for respondent.
    I. Defendant received meaningful representation. (People v Frazier, 63 AD3d 1633, 12 NY3d 925; People v Lasher, 74 AD3d 1474, 15 NY3d 894; People v Smith, 87 NY2d 715; People v Wiggins, 89 NY2d 872; People v Helm, 51 NY2d 853; People v Colon, 90 NY2d 824; People v Colville, 20 NY3d 20; People v Washington, 19 AD3d 1180, 5 NY3d 833; People v Henriquez, 3 NY3d 210.) II. The trial court properly granted the People’s request for a drug factory presumption charge. (People v Kims, 96 AD3d 1595, 24 NY3d 422; People v Riddick, 159 AD2d 596; People v Pressley, 294 AD2d 886; People v Rodriguez, 194 AD2d 634; People v Snow, 225 AD2d 1031; People v Tirado, 38 NY2d 955; People v Daniels, 37 NY2d 624; People v Tejeda, 73 NY2d 958; People v Galindo, 23 NY3d 719; People v Bailey, 13 NY3d 67.)
   OPINION OF THE COURT

Stein, J.

Under the circumstances of this case, we conclude that the drug factory presumption of Penal Law § 220.25 was properly considered by the factfinder. In addition, defendant argues that the decision regarding whether to testify before the grand jury is fundamental and, therefore, reserved to defendants, rather than a matter of strategy that rests with defense counsel. We reject that argument and hold that the decision is a strategic one, requiring the expert judgment of counsel. Thus, we adhere to our prior decisions establishing that the refusal to timely facilitate defendant’s appearance before the grand jury does not, per se, amount to ineffective assistance of counsel.

Defendant was arrested on felony drug possession charges after police executing a search warrant at his former girlfriend’s apartment observed him running to the bathroom from the kitchen, where packaged and loose cocaine, baggies, and a razor blade were found in open view directly across from the entrance door. At approximately 4:00 p.m. on the Friday before a long holiday weekend, the People sent notice to defense counsel, by fax, indicating that the case would be presented to a grand jury on the next business day, a Tuesday, at 1:45 p.m. Defense counsel had already left the office and did not receive the notice until Tuesday morning. He then contacted the district attorney’s office and indicated that he would not have defendant testify because he “didn’t see the benefit to it, only the harm.” It is undisputed that counsel did not speak with defendant about testifying before the grand jury, which ultimately voted to indict defendant, charging him with, among other things, criminal possession of a controlled substance in the third and fifth degrees. Defendant later moved to dismiss the indictment on the ground that he was denied an opportunity to testify before the grand jury due to insufficient notice. Supreme Court denied the motion as untimely.

At the ensuing nonjury trial, police officers testified that, upon entering the apartment, they found six “dime bags” of packaged crack cocaine and 50 unused baggies in plain view on the kitchen counter. There was also testimony that the baggies were of the sort that “are commonly used for the unlawful packaging, sale and distribution of illegal narcotics such as crack cocaine” — i.e., sale-related items associated with the drug trade. They also found loose cocaine and a razor blade on the floor, a few feet in front of the counter. One of the officers testified that defendant was initially observed “a couple of feet” away from the cocaine. Defendant’s former girlfriend, who pleaded guilty to attempted criminal possession of a controlled substance in the third degree, testified that she had purchased the cocaine and was “in the process of moving it” when the police arrived, but it “flew everywhere” out of her hands when she heard the police banging on the door. She admitted that the cocaine — including the loose cocaine that had been in her hands — and the unused baggies were in plain view when the police entered. She further testified that she was not sure what she was going to do with the drugs, but acknowledged that she would “[p]robably sell some.”

Defendant was convicted of criminal possession of a controlled substance in the third and fifth degrees. In handing down its verdict, the court indicated that there was insufficient proof under a constructive possession theory without the presumption set forth in Penal Law § 220.25 (2), commonly known as the drug factory presumption. Defendant was sentenced, as a second felony offender, to an aggregate term of nine years in prison, to be followed by three years of post-release supervision. His subsequent motion to set aside the verdict was denied.

Upon defendant’s appeal, the Appellate Division unanimously affirmed, rejecting his arguments that the drug factory presumption did not apply and that he was denied the effective assistance of counsel (118 AD3d 1263, 1263-1264 [4th Dept 2014]). A Judge of this Court granted defendant leave to appeal (24 NY3d 1219 [2015]).

IL

Initially, we reject defendant’s argument that the drug factory presumption contained in Penal Law § 220.25 (2) was inapplicable because, he maintains, there was evidence only of possession with intent to sell, but no evidence of intent to package or otherwise prepare drugs for sale. As relevant here, section 220.25 (2) provides:

“The presence of a narcotic drug ... in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found” (emphasis added).

This Court recently addressed this provision in People v Kims, explaining that the statute allows the court to charge the fact-finder “with a permissible presumption, under which the [fact-finder] may assume the requisite criminal possession simply because the defendant, while not in actual physical possession, is within a proximate degree of closeness to drugs found in plain view, under circumstances that evince the existence of a drug sale operation” (24 NY3d 422, 432 [2014]).

The intention of Penal Law § 220.25 (2) is “to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals’ participation in a drug operation” (24 NY3d at 432-433, citing Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044). That is,

“ [t]he presumption was intended to address the issue of proof of knowing possession by those who were supervising or participating in the preparation of drugs for resale but who did not have personal physical possession of the drugs when the police lawfully entered the premises [;] . . .
“a ‘dealership quantity’ of the drug is not a requirement,” however (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 220.25 [emphasis added]).

In accordance with the statutory purpose — and as is evident from the language of the statute — “a specific intent on the part of the defendant to ‘unlawfully mix, compound, package or otherwise prepare for sale’ a controlled substance [need not] be shown [;] [a] 11 that is required is that the ‘circumstances evinc[e]’ such an intent” (People v Nelson, 147 AD2d 774, 776 [3d Dept 1989], lv denied 74 NY2d 794 [1989] [citation omitted], quoting Penal Law § 220.25 [2]).

This Court has found circumstances present evincing the existence of a drug factory for purposes of the presumption where cocaine was found in a bathrobe that was under a pile of clothes, along with, “in plain view, . . . recognized adulterants and drug paraphernalia” (People v Tirado, 47 AD2d 193, 195-196 [1st Dept 1975], affd on op below 38 NY2d 955 [1976]). Similarly, we concluded that the presumption was properly applied where an “apartment contained] a large cache of drugs, money and weapons in plain view” (People v Bundy, 90 NY2d 918, 920 [1997]), as well as where police found a small residue of cocaine on a dish, grains of rice on the floor, a plastic bag containing over one-half ounce of cocaine in a closed drawer, and 10 ounces of cocaine hidden in a bag of rice in a refrigerator (see People v Tejeda, 73 NY2d 958, 960 [1989]). In contrast, there was insufficient evidence to charge the presumption where, upon entering an apartment in which an undercover officer had recently made a controlled buy, police found only “a tinfoil packet of cocaine on the floor in the four-to-five-inch space between a couch and the wall,” as well as a large amount of cash (People v Martinez, 83 NY2d 26, 30, 34 n 3 [1993], cert denied 511 US 1137 [1994]).

Under the circumstances here, the court properly granted the People’s request that it consider the presumption. Defendant’s former girlfriend admitted that the bagged crack, loose cocaine and baggies were in plain view, and that she was in the process of “moving” the cocaine that she was “[p]robably” going to sell. The police further testified that defendant was found in close proximity to the cocaine and that the drugs, baggies and razor blade were in open view. Despite the fact that the loose cocaine was in the carpet — where it fell from the former girlfriend’s hands when she was startled by the police battering ram — it was in the open and not concealed by any furniture or other object (cf. Martinez, 83 NY2d at 36-37). While there was not a vast quantity of cocaine found, the evidence presented at trial supported an inference of more than mere intent to use or sell. Specifically, the evidence of packaged and loose drugs, paraphernalia and a razor blade in plain view was sufficient to establish that drugs were being “package [d] or otherwise prepare [d] for sale” in the apartment, permitting the conclusion that defendant, who was in close proximity to the drugs, knowingly possessed them (Penal Law § 220.25 [2]; see People v Elhadi, 304 AD2d 982, 982-984 [3d Dept 2003], lv denied 100 NY2d 580 [2003]; People v Jiminez, 292 AD2d 196, 197 [1st Dept 2002], lv denied 98 NY2d 698 [2002]; People v James, 266 AD2d 236 [2d Dept 1999]; People v Westbrook, 177 AD2d 1039 [4th Dept 1991], lv denied 79 NY2d 866 [1992]).

III.

Defendant’s claim that he was deprived of the effective assistance of counsel is also meritless. Specifically, defendant faults his counsel for both deciding that defendant would not testify before the grand jury without consulting him and failing to timely move to dismiss the indictment for insufficient notice of the grand jury proceeding. A defendant advancing an ineffective assistance claim must “demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings” (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks and citation omitted]), and defendant cannot do so here because counsel stated “his thinking in plain language on the record” (People v Nesbitt, 20 NY3d 1080, 1082 [2013]) regarding why, as a matter of strategy, he decided that defendant would not testify before the grand jury. In an attempt to overcome this hurdle, defendant argues that counsel had no authority to decide whether he would testify before the grand jury because that choice is fundamental and, therefore, reserved exclusively for defendants. We disagree.

“It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case” (People v Colon, 90 NY2d 824, 825 [1997] [internal quotation marks omitted]; see People v Colville, 20 NY3d 20, 28 [2012]; People v Ferguson, 67 NY2d 383, 390 [1986]). Fundamental decisions belonging to a defendant are those “such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal” (Colon, 90 NY2d at 825-826 [internal quotation marks and citation omitted]). In contrast, strategic decisions regarding the conduct of trial, which remain in the purview of counsel, include those such as whether to seek a jury charge on lesser-included offenses (see Colville, 20 NY3d at 32), the selection of particular jurors (see Colon, 90 NY2d at 826), and whether to consent to a mistrial (see Ferguson, 67 NY2d at 390). If defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is “for the attorney, not the accused, to make” because it is not fundamental, the defendant is deprived of “the expert judgment of counsel to which the Sixth Amendment entitles him” or her (Colville, 20 NY3d at 32).

While the right to testify before a grand jury is significant and “must be scrupulously protected” (People v Brumfield, 24 NY3d 1126, 1128 [2015] [internal quotation marks and citations omitted]), “a prospective defendant has no constitutional right to testify before the [g]rand tj]ury” (People v Smith, 87 NY2d 715, 719 [1996] [emphasis added]). In contrast to the “constitutional nature of the right to testify at trial” (id. at 720), the right to testify before the grand jury is a limited statutory right {see CPL 190.50 [5]; Smith, 87 NY2d at 719). Whether to exercise that right is a decision that requires “the expert judgment of counsel” (Colville, 20 NY3d at 32) because it “involves weighing the possibility of a dismissal, which, in counsel’s judgment, may be remote, against the potential disadvantages of providing the prosecution with discovery and impeachment material, making damaging admissions, and prematurely narrowing the scope of possible defenses”— quintessential matters of strategy (People v Brown, 116 AD3d 568, 569 [1st Dept 2014], lv denied 24 NY3d 1001 [2014]). The various risks and benefits that must be considered render the decision of whether to exercise this statutory right “an appropriate one for the lawyer, not the client” (Ferguson, 67 NY2d at 390; see Brown, 116 AD3d at 569; People v Lasher, 74 AD3d 1474, 1476 [3d Dept 2010], lv denied 15 NY3d 894 [2010]).

In any event, this Court has repeatedly and consistently held that — even when it is due to attorney error — a “[d]efense counsel’s failure to timely facilitate defendant’s intention to testify before the [g]rand |j]ury does not, per se, amount to a denial of effective assistance of counsel” (People v Wiggins, 89 NY2d 872, 873 [1996]; see People v Simmons, 10 NY3d 946, 949 [2008]; People v Helm, 51 NY2d 853, 854-855 [1980]). That is, even where no strategy is involved, a defendant must show prejudice — for example, that if he or she “had . . . testified in the grand jury, the outcome would have been different” — in order to succeed on an ineffective assistance of counsel claim in this regard (Simmons, 10 NY3d at 949). We see no reason to overrule our long-standing precedent in this regard. Here, defendant’s claim that the result would have been different if he and his former girlfriend had testified before the grand jury is not convincing. Indeed, they did testify at trial and he was nevertheless found guilty.

In short, the decision of whether to have a defendant testify before a grand jury is a strategic decision within counsel’s authority to make. Here, counsel stated his strategy on the record and, even if counsel had not done so, defendant has shown no prejudice. Therefore, while the better practice may be for counsel to consult with his or her client, defendant cannot establish ineffective assistance of counsel based on counsel’s decision that defendant would not testify before the grand jury. Regarding the untimely motion for dismissal of the indictment based upon inadequate notice, we need only note that ineffective assistance is not established by a defendant’s allegations that counsel failed to make a meritless motion (see People v Stultz, 2 NY3d 277, 287 [2004]).

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

Rivera, J,

(dissenting). The statutory presumption contained in Penal Law § 220.25 (2) was appropriately dubbed the “drug factory presumption,” because it “was intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals’ participation in a drug operation” (People v Kims, 24 NY3d 422, 432-433 [2014], citing Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044). Recognizing the “fairly common situation” where “[t]he occupants of such ‘factories,’ who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them” (id. at 433, citing Mem of St Commn of Investigation, Bill Jacket, L 1971, ch 1044 at 4), “the drafters of the statute also sought to address the difficulty of prosecuting persons other than the owner or lessee of the premises,” by equating an individual’s close proximity to drugs in a drug sale operation with that person’s actual possession of a controlled substance (id.). Nevertheless, the majority ignores the intention of Penal Law § 220.25 (2) and construes the statute broadly to apply where the evidence of a drug business is tenuous and defendant’s participation in a drug sale operation is lacking.

“We have long recognized that statutory presumptions are without validity unless the probabilities based on experience and proof justify them” (Kims, 24 NY3d at 435 [internal quotation marks and citations omitted]). Where facts “lead to a conclusion counterintuitive to the probabilities to be drawn from common experience, the [drug factory] presumption has no place” (id. [internal quotation marks and citation omitted]). According to the statute, the presumption applies if there exist “circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare [that substance] for sale” (Penal Law § 220.25 [2]). Those circumstances are lacking here.

When the police entered the apartment they failed to discover sale-related items associated with the drug trade. Unlike other cases where the drug factory presumption has been applied, here, for example, there were no guns or other weapons, no cache of money, no drug mixing agents, and no scale to weigh drugs for packaging, typical of a drug sale enterprise (see People v Faulk, 126 AD3d 564, 564 [1st Dept 2015], lv denied 25 NY3d 1071 [2015] [drug factory presumption applied where defendant had close proximity to “cocaine, crack pipes and a scale with cocaine residue”]; People v Hyde, 302 AD2d 101, 105 [1st Dept 2003], lv denied 99 NY2d 655 [2003] [drug factory presumption applied where there were drugs, drug paraphernalia and “a loaded gun in an open bag”]; People v Bundy, 235 AD2d 334, 337 [1st Dept 1997] [drug factory presumption applied where defendant was in close proximity to a “loaded Glock gun, the 20 clear bags containing 1,968 crack-filled vials, the brown bag containing a rock of crack and 59 vials with crack in them, the plastic bags containing empty vials and vial tops, and a scale used to weigh narcotics”], affd 90 NY2d 918 [1997]; People v James, 151 AD2d 606, 606-607 [2d Dept 1989] [drug factory presumption applied where there were “scales, two heat sealers, numerous empty vials and a large amount of cash”]).

The items the police found in this case — six dime bags of crack cocaine and 50 unused empty ziplock baggies on the kitchen counter, and a razor blade and loose cocaine on the floor — are insufficient to support the conclusion that the defendant was a participant in a drug sale enterprise because the items found may also be evidence of personal drug use. In fact, the apartment tenant and defendant’s former companion testified at defendant’s trial that the drugs were hers alone, she was hiding them from defendant, and, at the time the police entered, she was “undecisive” about what she would do with the drugs in the future, but that she would possibly consume some of the cocaine. This is not to say that a claim of personal use forecloses the People’s reliance on the drug factory presumption, because where “probabilities based on experience and proof justify” the presumption, the presumption applies (Kims, 24 NY3d at 435).

However, this Court may not expand the reach of the drug factory presumption beyond its intended legislative purpose {see McKinney’s Cons Laws of NY, Book 1, Statutes § 94, Comment [“A statute should not be extended by construction beyond its express terms or reasonable implications of its language”]). To ensure proper adherence to the statutory goal, there should be a sufficient nexus between the legislatively identified problem and those persons subjected to the statutory presumption. No such nexus exists on the facts presented here where the common indicia of a drug factory operation is lacking, and where the facts do not discount intended personal use of the drugs. Thus, the People were required to carry their usual burden of establishing beyond a reasonable doubt that the defendant was in possession of the contraband. They failed to do so and, therefore, the trial court should not have relied on the statutory presumption.

Defendant also presents a meritorious claim of ineffective assistance of counsel. In my opinion the majority’s rejection of this claim is based on a flawed analysis for two reasons. First, the majority relies on an overly burdensome standard in assessing whether counsel was ineffective. Under our State Constitution a defendant must demonstrate that counsel failed to provide meaningful representation based on the totality of the representation (People v Baldi, 54 NY2d 137, 147 [1981]). A defendant does not have to establish prejudice, as is required under the federal standard (see People v Caban, 5 NY3d 143, 155 [2005] [“Our state standard of meaningful representation, by contrast, does not require a defendant to fully satisfy the prejudice test of Strickland” (internal quotation marks omitted)]). Therefore, the proper standard in deciding defendant’s case is not whether he was prejudiced by the failure to testify before the grand jury, as the majority asserts (majority op at 787), but rather did defense counsel’s failure to facilitate defendant’s intention to testify constitute less than meaningful representation.

The majority applies prior cases of this Court which impose a prejudice requirement on an ineffectiveness claim involving a defendant’s right to testify before a grand jury (majority op at 787). However, there is no legal or practical basis to reject our well-established ineffectiveness standard for one class of deficient representation claims. There is nothing insignificant about these claims that warrants differential, and more burdensome, treatment than any other ineffective assistance of counsel claim. This Court has stated repeatedly that the right to testify before a grand jury is critical to the defendant. Although not a constitutional right, we have explained that the defendant, via statute, still has the right “to appear at this critical accusatory stage to offer testimony that may affect the Grand Jury’s consideration of the otherwise exclusive, ex parte presentment of evidence by the prosecution” (People v Evans, 79 NY2d 407, 413-414 [1992]). A defendant’s ability to testify at a grand jury proceeding is that individual’s “singular incursion on the prosecutor’s otherwise exclusive stronghold” (id. at 414). Recently the Court has reaffirmed the significance of a defendant’s opportunity to testify at grand jury proceedings and held that this right “must be scrupulously protected” (People v Brumfield, 24 NY3d 1126, 1128 [2015], quoting People v Smith, 87 NY2d 715, 721 [1996]). Apparently, according to the majority such protection does not extend to one’s own lawyer.

Given these considerations we should not follow cases that deviate from our constitutional standard. Stare decisis is not meant to fit the Court like a straightjacket and to prevent mistakes from being rectified. While “a court should be slow to overrule its precedents, there is little reason to avoid doing so when persuaded by the ‘lessons of experience and the force of better reasoning’ ” (People v Bing, 76 NY2d 331, 338 [1990], quoting Burnet v Coronado Oil & Gas Co., 285 US 393, 407-408 [1932, Brandeis, J., dissenting]). A defendant’s grand jury claim should be subject to the same standard as other ineffective assistance of counsel claims, such as those based on a lawyer’s failure to investigate and adequately prepare a defense (People v Oliveras, 21 NY3d 339, 348 [2013]), failure to object to prosecutorial misconduct and inflammatory summation remarks (People v Wright, 25 NY3d 769 [2015]), failure to assert a statute of limitations defense to a charge (People v Turner, 5 NY3d 476 [2005]), failure to consider proper criminal procedure and evidentiary law (People v Oathout, 21 NY3d 127 [2013]), or failure to ensure that in counsel’s absence defendant had adequate, and non-conflicted, representation (People v Allah, 80 NY2d 396 [1992]).

The second reason that the majority’s analysis fails is that, assuming, arguendo, a determination whether to have a defendant testify before the grand jury is a matter solely within the professional discretion of a defense attorney, here defendant’s lawyer never discussed the matter with defendant. Thus, counsel could not have made an informed choice regarding this critical question. Indeed, counsel cannot define a strategy regarding whether a defendant should testify without reviewing the potential testimony with the client (cf. Oliveras, 21 NY3d at 348 [“This is not simply a case of a failed trial strategy. Rather, this is a case of a lawyer’s' failure to pursue the minimal investigation required under the circumstances” (citations omitted)]). Without such minimal effort defendant’s counsel could not consider, or even know, the facts and risks associated with defendant’s testimony, nor fully assess the advantages and disadvantages of whether it was in defendant’s interest to appear before the grand jury. Under these circumstances counsel did not provide meaningful representation.

For the reasons stated above, I dissent.

Judges Pigott, Abdus-Salaam and Fahey concur; Judge Rivera dissents in an opinion; Chief Judge DiFiore and Judge Garcia taking no part.

Order affirmed.

      . Contrary to the dissent’s contention, the former girlfriend’s indecisiveness over “possibly” consuming some of the drugs, herself, does not defeat the sufficiency of the evidence in support of charging the presumption.

      . As noted by one Court, our holdings that a defendant must show prejudice in order to prevail on an ineffective assistance of counsel claim when he or she has lost the right to testify before the grand jury based upon an attorney’s calendaring mistake (see People v Simmons, 10 NY3d 946, 949 [2008]; People v Wiggins, 89 NY2d 872, 873 [1996]) “strongly support! Í the conclusion that . . . [the] strategic and tactical decision! ] [of] testifying before the grand jury . . . [is] deemed to repose” in defense counsel (People v Lasher, 74 AD3d 1474, 1476 [3d Dept 2010], lv denied 15 NY3d 894 [2010] [internal quotation marks and citations omitted]; see also Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book HA, CPL 190.50 [noting the general rule that the target of a grand jury investigation is not entitled to notice of the proceeding against him or her and that federal defendants have no right to testify before a grand jury]).


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [48 NE3d 933, 28 NYS3d 652]
    Yousupu Sangaray, Appellant, v West River Associates, LLC, Respondent, et al., Defendants. (And a Third-Party Action.)
    Argued January 5, 2016;
    decided February 11, 2016

      POINTS OF COUNSEL

      Kelner & Kelner, New York City (Joshua D. Kelner of counsel), for appellant.
    I. The plain language and legislative history of section 7-210 of the Administrative Code of the City of New York, along with the common-law backdrop against which it was enacted, uniformly establish that a landowner can be held liable if its failure to maintain the sidewalk abutting its property “proximately causes” an accident, regardless of where the accident takes place. (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Becker v Schwartz, 46 NY2d 401; Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; Matter of New York Constr. Materials Assn., Inc. v New York State Dept. of Envtl. Conservation, 83 AD3d 1323; Matter of Yellow Book of N.Y., Inc. v Commissioner of Taxation & Fin., 75 AD3d 931; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; McIntosh v Village of Freeport, 95 AD3d 965.) II. Defendant failed to argue, much less to demonstrate, that its negligence in maintaining the sidewalk in front of its own property was not a proximate cause of the accident. (Nancy Ann O. v Poughkeepsie City School Dist., 95 AD3d 972; Lau v Wan, 93 AD3d 763; Morreale v 105 Page Homeowners Assn., Inc., 78 AD3d 1026; Ruiz v 30 Real Estate Corp., 47 AD3d 432; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Carson v Dudley, 25 AD3d 983; White v Diaz, 49 AD3d 134.)

      Rebore, Thorpe & Pisarello, P.C., Farmingdale (Timothy J. Dunn, III, and Michelle S. Russo of counsel), for respondent.
    The Appellate Division correctly affirmed the lower court’s granting of dismissal to the owner of property that did not abut the sidewalk where the accident occurred. (Vucetovic v Epsom Downs, Inc., 10 NY3d 517; Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200; Matter of Brown v Wing, 93 NY2d 517; Desiderio v Ochs, 100 NY2d 159; Montalbano v 136 W. 80 St. CP, 84 AD3d 600; Thompson v 793-97 Garden St. Hous. Dev. Fund Corp., 101 AD3d 642; Lorenzo v Ortiz Funeral Home Corp., 113 AD3d 528; Byron v City of New York, 119 AD3d 625; Mitchell v Icolari, 108 AD3d 600; Camacho v City of New York, 96 AD3d 795.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff alleges that he tripped and fell when his right toe came into contact with a raised portion of a New York City public sidewalk. The sidewalk flag that plaintiff was traversing ran from the front of a property owned by defendant West River Associates, LLC to a neighboring premises owned by defendants Sandy and Rhina Mercado. A photograph contained in the record depicts the sidewalk flag sloping and descending lower than a level flagstone that is in front of the Mercado property. The expansion joint that plaintiff’s toe contacted abutted solely the Mercado property.

Plaintiff commenced this common-law negligence action against West River and the Mercados. After defendants served their respective answers, plaintiff responded to West River’s demand for a verified bill of particulars by alleging, among other things, that West River violated section 7-210 of the Administrative Code of the City of New York. That provision, which was enacted for the purposes of transferring tort liability from the City to certain adjoining property owners as a cost-saving measure (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517, 521 [2008]), provides, as relevant here:

“a. It shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.
“b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any . . . personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to . . . repair or replace defective sidewalk flags.”

West River moved, among other things, for summary judgment dismissing plaintiff’s complaint, asserting that because the area of the sidewalk upon which plaintiff tripped was located entirely in front of the Mercado property, the “defect” did not abut the West River premises, and, therefore, West River could not be held liable for failing to maintain its sidewalk. In support of its motion, West River submitted an affidavit from a land surveyor who conducted a boundary survey of the sidewalk in front of the West River and Mercado properties. The surveyor determined that the expansion joint upon which plaintiff claimed he tripped was wholly in front of the Mercado property, as evidenced by the survey map that was attached to the surveyor’s affidavit.

Plaintiff countered that West River breached its statutory duty by allowing its sidewalk flag to fall into disrepair, and, in any event, failed to demonstrate its entitlement to summary judgment because it did not show that it maintained its sidewalk in a reasonably safe condition.

The Mercados also opposed West River’s motion, arguing that, based on their own survey and an affidavit submitted by a licensed professional engineer, approximately 92% to 94% of the defective flag (which had settled due to subsidence of the underlying soil) was in front of the West River property, and 6% to 8% of the defective flag fronted the Mercado property.

Supreme Court granted West River’s motion for summary judgment and dismissed plaintiff’s complaint and the Mercados’ cross claim upon constraint of the Appellate Division, First Department’s holding in Montalbano v 136 W. 80 St. CP (84 AD3d 600 [1st Dept 2011]), which it interpreted as holding that a landowner’s duty to maintain the sidewalk is implicated only where the defect upon which the plaintiff falls abuts the landowner’s property (2013 NY Slip Op 30834[U] [Sup Ct, NY County 2013]). The court concluded that because plaintiff and the Mercados failed to dispute the evidence submitted by West River that the defect was in front of the Mercado property, plaintiff and the Mercados failed to raise a question of fact as to whether West River breached a duty owing to plaintiff.

On plaintiff’s appeal, the Appellate Division affirmed, holding that because the record demonstrated that “West River did not own the property that abutted the sidewalk where plaintiff tripped and fell [, it] was therefore not responsible for maintaining the sidewalk in a reasonably safe condition” (121 AD3d 602, 603 [1st Dept 2014], citing Administrative Code of City of NY § 7-210, Thompson v 793-97 Garden St. Hous. Dev. Fund Corp., 101 AD3d 642 [1st Dept 2012], and Montalbano, 84 AD3d at 602). Two Justices concurred with the majority’s interpretation of section 7-210, but asserted that the provision, as written, allowed West River to avoid liability for the consequences of its failure to maintain its sidewalk in a reasonably safe condition (see id. at 605 [Saxe, J., concurring]). This Court granted plaintiff leave to appeal (24 NY3d 916 [2015]) and we now reverse.

Section 7-210 unambiguously imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure. The First and Second Departments have seemingly engrafted onto section 7-210 a “location requirement,” such that if the defect upon which a person trips abuts a particular property, then the owner of that property is deemed liable, without conducting any inquiry as to whether a neighboring owner’s failure to comply with its statutory duties may have also been a proximate cause of the accident (see e.g. Byron v City of New York, 119 AD3d 625 [2d Dept 2014] [holding that defendant made a prima facie showing of entitlement to summary judgment by demonstrating that the plaintiff’s fall was caused by an alleged defect that was present in a portion of a sidewalk abutting the premises owned by the codefendant]; Lorenzo v Ortiz Funeral Home Corp., 113 AD3d 528 [1st Dept 2014] [granting codefendants summary judgment because the sidewalk defect that caused the accident was located in front of the neighboring defendants’ property, and, therefore, the codefendants did not have any obligation to repair it]; Camacho v City of New York, 96 AD3d 795 [2d Dept 2012] [defendant property owners met their prima facie burden by demonstrating, through the use of a land survey, that the portion of the sidewalk containing the alleged defect did not abut their property]; Montalbano, 84 AD3d 600 [defendant met his burden by submitting uncontroverted evidence that his property did not abut the portion of the sidewalk where the plaintiff fell and therefore established that he did not have a duty to maintain the portion of the sidewalk where the plaintiff fell in a reasonably safe condition]).

The case upon which West River primarily relies, and which both the lower courts found controlling, is Montalbano. Contrary to West River’s contention, Montalbano is distinguishable from this case. In Montalbano, the plaintiff claimed that he tripped on a sidewalk flag that was raised on one side at the expansion joint (84 AD3d at 600). There was initially a dispute concerning whether the sidewalk flag abutted the property of defendant 80th Street Owners Corp. or defendant James Callanan, but as the litigation progressed, it became clear by way of a survey that the area where the plaintiff claimed he tripped abutted the Owners Corp. property (see id. at 601). The plaintiff and Owners Corp. argued, among other things, that because the majority of the flag abutted Callanan’s property, Callanan was liable to the plaintiff, but the Court disagreed, holding that the plaintiff did not fall on a portion of the sidewalk abutting Callanan’s property (see id. at 602). The Court further rejected the argument by the plaintiff and Owners Corp. that Callanan’s replacement of the defective sidewalk flag after the accident made Callanan liable to the plaintiff, holding that it was irrevelant whether Callanan had exercised control over that part of the sidewalk because section 7-210 “does not make persons who exercise control over the sidewalk liable — it refers only to owners of real property” {id. at 602).

Unlike the plaintiff in Montalbano, who did not argue that Callanan failed to maintain the sidewalk flag abutting his property in a reasonably safe condition, plaintiff here argues that West River failed to comply with its own statutory duty to maintain the sidewalk abutting its premises in a reasonably safe condition, and that such failure was a proximate cause of his injury. To be sure, the location of the alleged defect and whether it abuts a particular property is significant concerning that particular property owner’s duty to maintain the sidewalk in a reasonably safe condition. That does not, however, foreclose the possibility that a neighboring property owner may also be subject to liability for failing to. maintain its own abutting sidewalk in a reasonably safe condition where it appears that such failure constituted a proximate cause of the injury sustained. Thus, to the extent that Montalbano and other cases interpreting section 7-210 can be interpreted as holding that only the landowner whose property abuts the defect upon which the plaintiff trips may be held liable, they should no longer be followed for that premise. Simply put, section 7-210 (b), by its plain language, does not restrict a landowner’s liability for accidents that occur on its own abutting sidewalk where the landowner’s failure to comply with its duty to maintain its sidewalk in a reasonably safe condition constitutes a proximate cause of a plaintiff’s injuries. Furthermore, our interpretation of section 7-210 as tying liability to the breach of that duty when it is a cause of the injury is consistent with the purpose underlying the enactment of that provision, namely, to incentivize the maintenance of sidewalks by abutting landowners in order to create safer sidewalks for pedestrians and to place liability on those who are in the best situation to remedy sidewalk defects.

As part of its prima facie showing of entitlement to summary judgment, West River was required to do more than simply demonstrate that the alleged defect was on another landowner’s property. Here, West River focused solely on the location of the actual defect upon which plaintiff allegedly tripped, and ignored its burden of demonstrating that it complied with its own duty to maintain the sidewalk abutting its property in a reasonably safe condition and/or that it was not a proximate cause of plaintiffs injuries (see e.g. James v Blackmon, 58 AD3d 808, 809 [2d Dept 2009]).

Plaintiff tripped on an expansion joint that abutted the Mercados’ property. That does not end the inquiry, nor does the fact that the defect upon which plaintiff tripped was in front of the Mercado property necessarily absolve West River of liability. Although West River did not have a duty to remedy any defects in front of the Mercado property, section 7-210 (a) imposed a duty on West River to maintain the sidewalk abutting its premises in a reasonably safe condition. Moreover, the plain language of section 7-210 (b) provides that West River may be held liable for injuries where its failure to maintain its sidewalk is a proximate cause of those injuries. Here, most of the sunken sidewalk flag that plaintiff traversed abutted West River’s property, and plaintiff claims that West River’s sidewalk flag had sunk lower than the expansion joint upon which plaintiff allegedly tripped. Thus, West River failed to meet its burden of demonstrating entitlement to judgment as a matter of law, leaving factual questions as to whether West River breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach was a proximate cause of plaintiff’s injuries. Under the circumstances of this case, summary judgment should have been denied.

Accordingly, the order of the Appellate Division should be reversed, with costs, and West River Associates, LLC’s motion insofar as it sought summary judgment dismissing the complaint denied.

Judges Rivera, Abdus-Salaam, Stein and Fahey concur; Chief Judge DiFiore and Judge Garcia taking no part.

Order reversed, with costs, and defendant West River Associates, LLC’s motion insofar as it sought summary judgment dismissing the complaint denied.


text:
    [48 NE3d 937, 28 NYS3d 656]
    Sean R., an Infant, by His Mother and Natural Guardian, Debra R., Appellant, v BMW of North America, LLC, et al., Respondents.
    Argued January 4, 2016;
    decided February 11, 2016

      POINTS OF COUNSEL

      Phillips & Paolicelli LLP, New York City (Steven J. Phillips, Danielle George and Victoria E. Phillips of counsel), for appellant.
    I. The rulings below misapplied Frye, improperly credited false testimony from BMW’s causation expert, and deprived plaintiff of his constitutional right to present qualified, competent, and credible causation proofs to a jury. (People v Drake, 7 NY3d 28; Andersen v Bee Line, Inc., 1 NY2d 169; Commercial Cas. Ins. Co. v Roman, 269 NY 451; Cokeng v Ogden Cap Props., LLC, 104 AD3d 550; People v LeGrand, 8 NY3d 449; LaRose v Corrao, 105 AD3d 1009, 22 NY3d 857; Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762; Sadek v

      Wesley, 117 AD3d 193; Lugo v New York City Health & Hosps. Corp., 89 AD3d 42; Frye v United States, 293 F 1013.) II. The Frye ruling concerning exposure overlooked case law confirming the propriety of Dr. Frazier’s methods, and wrongly adopted the conclusions of defense expert Peter Lees, despite gaps in his expertise and errors in his analysis. (People v LeGrand, 8 NY3d 449; Matter of Bethany F. [Michael F.], 85 AD3d 1588; Magistrini v One Hour Martinizing Dry Cleaning, 180 F Supp 2d 584.) III. The rulings below rest on a misunderstanding of Parker v Mobil Oil Corp. (7 NY3d 434 [2006]), whose requirements are clearly satisfied in this case. (People v Wesley, 83 NY2d 417; Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762.) IV. The procedural improprieties of defendants’ motions independently warrant reversal. (Reeps v BMW of N. Am., LLC, 94 AD3d 475; Brill v City of New York, 2 NY3d 648; Downtown Art Co. v Zimmerman, 232 AD2d 270; Charter Sch. for Applied Tech, v Board of Educ. for City Sch. Dist. of City of Buffalo, 105 AD3d 1460; Ofman v Ginsberg, 89 AD3d 908; West Broadway Funding Assoc. v Friedman, 74 AD3d 798; Parker v Mobil Oil Corp., 7 NY3d 434; Ronbet 366 LLC v Tobias, 19 AD3d 102; Sharp v Stavisky, 242 AD2d 447; Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750.) V. At a minimum, the trial court should have conducted a hearing. (People v Middleton, 54 NY2d 42; People v Abney, 13 NY3d 251; Abramson v Pick Quick Foods, Inc., 56 AD3d 702; Mitchell v Brown, 43 AD3d 1009; People v Santiago, 17 NY3d 661.)

      Biedermann Hoenig Semprevivo, P.C., New York City (Philip C. Semprevivo, Jr., Peter Hoenig, Peter W. Beadle and Justin A. Guilfoyle of counsel), for BMW of North America, LLC and others, respondents.
    I. The Appellate Division, First Department, relying on this Court’s decision in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]), properly affirmed the Supreme Court’s order precluding two of appellant’s general causation experts from testifying at trial. (Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762.) II. The Supreme Court properly applied Frye v United States (293 F 1013 [DC Cir 1923]) in precluding two of appellant’s causation experts from testifying at trial. (Parker v Mobil Oil Corp., 7 NY3d 434; People v Wesley, 83 NY2d 417; Del Maestro v Grecco, 16 AD3d 364; Saulpaugh v Krafte, 5 AD3d 934; Fraser v 301-52 Townhouse Corp., 57 AD3d 416; People v Wesley, 83 NY2d 417; Zito v Zabarsky, 28 AD3d 42; Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762.) III. There were no procedural improprieties warranting reversal. IV. The Supreme Court properly heard respondents BMW’s Frye motion on the evidence submitted by appellant and respondents BMW. (Selig v Pfizer, Inc., 185 Misc 2d 600, 290 AD2d 319, 98 NY2d 603; Oppenheim v United Charities of N.Y., 266 AD2d 116.)

      Lawrence, Worden, Rainis & Bard, P.C., Melville (Leslie McHugh of counsel), for Martin Motor Sales, Inc., respondent.
    I. The testimony of Drs. Frazier and Kramer was properly precluded by the court below because they did not utilize causation methodologies or present conclusions generally accepted in the scientific community. (Frye v United States, 293 F 1013; People v Wesley, 83 NY2d 417; Cameron v Knapp, 137 Misc 2d 373; Selig v Pfizer, Inc., 185 Misc 2d 600; Lewin v County of Suffolk, 293 AD2d 453; Oppenheim v United Charities of N.Y., 266 AD2d 116; Gushue v Estate of Levy, 118 AD3d 415; Cornell v 360 W. 51st St. Realty, LLC, 95 AD3d 50, 22 NY3d 762; Parker v Mobil Oil Corp., 7 NY3d 434; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1.) II. Plaintiff failed to present competent proof which is generally accepted in the medical and scientific communities that unleaded gasoline can cause the medical conditions from which Sean R. suffers. (Heckstall v Pincus, 19 AD3d 203; Ratner v McNeil-PPC, Inc., 91 AD3d 63; Rodriguez v Ford Motor Co., 17 AD3d 159; Cumberbatch v Blanchette, 35 AD3d 341; Perry v Novartis Pharms. Corp., 564 F Supp 2d 452; Schudel v General Elec. Co., 120 F3d 991; Henricksen v ConocoPhillips Co., 605 F Supp 2d 1142; Doe v Ortho-Clinical Diagnostics, Inc., 440 F Supp 2d 465; Whiting v Boston Edison Co., 891 F Supp 12; Glastetter v Novartis Pharms. Corp., 252 F3d 986.) III. Plaintiff failed to demonstrate any scientifically reliable proof of specific causation. (Cleghorne v City of New York, 99 AD3d 443; Fraser v 301-52 Townhouse Corp., 57 AD3d 416; Todman v Yoshida, 63 AD3d 606; Wright v Willamette Indus., Inc., 91 F3d 1105; Johnson v Arkema, Inc., 685 F3d 452; Hall v Baxter Healthcare Corp., 947 F Supp 1387; Ruggiero v Warner-Lambert Co., 424 F3d 249; Magistrini v One Hour Martinizing Dry Cleaning, 180 F Supp 2d 584.) IV. There was no procedural impropriety by the IAS court entertaining the defendants’Frye motions. (Frye v Montefiore Med. Ctr., 100 AD3d 28.) V. Plaintiff did not request a Frye hearing and one was not required to resolve the issues raised on the motions. (Oppenheim v United Charities of N.Y., 266 AD2d 116; Selig v Pfizer, Inc., 185 Misc 2d 600.)

      Brill & Associates, P.C., New York City {Haydn J. Brill of counsel), for Hassel Motors, Inc., respondent.
    I. The motion court and the First Department correctly interpreted Frye and precluded Drs. Frazier and Kramer from testifying at trial. (Frye v United States, 293 F 1013; People v Wesley, 83 NY2d 417; Parker v Mobil Oil Corp., 7 NY3d 434; Cameron v Knapp, 137 Misc 2d 373; Collins v Welch, 178 Misc 2d 107; People v Middleton, 54 NY2d 42; Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762; General Electric Co. v Joiner, 522 US 136; Lewin v County of Suffolk, 293 AD2d 453; Oppenheim v United Charities of N.Y., 266 AD2d 116.) II. Defendants’ Frye motions were proper motions in limine, as they sought evidentiary rulings as to the admissibility of plaintiff’s experts. (State of New York v Metz, 241 AD2d 192; Marsh v Smyth, 12 AD3d 307; Matter of PCK Dev. Co., LLC v Assessor of Town of Ulster, 43 AD3d 539; Frye v Montefiore Med. Ctr., 100 AD3d 28.) III. The trial court did not abuse its discretion in deciding the motions without live testimony. (Selig v Pfizer, Inc., 290 AD2d 319; General Elec. Co. v Joiner, 522 US 136.)

      Robert S. Peck, Center for Constitutional Litigation, Washington, D.C. (Jeffrey R. White of counsel), for American Association for Justice, amicus curiae.
    I. The preclusion of causation testimony by plaintiff’s experts is inconsistent with the weight of reasoned authority. (Parker v Mobil Oil Corp., 7 NY3d 434; DeLuca by DeLuca v Merrell Dow Pharms., Inc., 911 F2d 941; Ethyl Corp. v Environmental Protection Agency, 541 F2d 1; Globetti v Sandoz Pharms., Corp., 111 F Supp 2d 1174; Benedi v McNeil-P.P.C., Inc., 66 F3d 1378; Kennedy v Collagen Corp., 161 F3d 1226; Frye v United States, 293 F 1013; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; Norris v Baxter Healthcare Corp., 397 F3d 878; LaRose v Corrao, 105 AD3d 1009.) II. Unwarranted restrictions on the admissibility of expert testimony undermine the constitutional right to trial by jury. (Kaminsky v Kahn, 20 NY2d 573; Granfinanciera, S. A. v Nordberg, 492 US 33; Parker v Mobil Oil Corp., 7 NY3d 434; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; Barefoot v Estelle, 463 US 880.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff Sean R. was born with severe mental and physical disabilities, which he attributes to in útero exposure to unleaded gasoline vapor caused by a defective fuel hose in his mother’s BMW. The question on this appeal is whether the courts below properly precluded two of plaintiff’s expert witnesses from testifying at trial as to causation. Because the experts did not rely on generally accepted principles and methodologies in concluding that plaintiff was exposed to a sufficient concentration of gasoline vapor to cause his injuries, we affirm.

L

In May 1989, plaintiff’s father, Guy R., purchased a new BMW 525i for his wife, Debra. She was the only person to drive the car and used it primarily for running local errands.

In the spring of 1991, Debra began to notice a smell of gasoline in the vehicle. She stated the odor “came and went” and that it would often dissipate as she drove. Debra said she could tolerate the smell in the summer when she was able to drive with the windows down, but that at other times it was so strong it caused her headaches, dizziness and throat irritation. Debra’s family members also noticed the odor when they rode in the vehicle, and Debra’s mother said it made her nauseous and dizzy. Eventually, the couple began to smell the odor in their home from the attached garage where they parked the car at night.

That March, Debra took the car to Hassel Motors complaining of the gasoline odor. Hassel could not identify any problem with the vehicle, however, and made no repairs. Debra continued driving the vehicle, despite the persistent odor of gasoline, when she became pregnant with plaintiff in July or August of 1991. Her husband took the vehicle back to Hassel in November, at which time Hassel discovered a fuel leakage into the engine compartment caused by a split fuel hose. In total, Debra had driven 6,458 miles in the eight months that she smelled gasoline in the vehicle.

Plaintiff was born without difficulty on May 13, 1992. Although his initial Apgar scores were 9 and 10 at one and five minutes after birth, respectively, subsequent testing revealed that plaintiff suffered from severe mental and physical disabilities. He was diagnosed with, among other things, spastic quadriparesis (a form of cerebral palsy), developmental delays, ventricular asymmetry, delayed myelination, microcephaly, aortic stenosis, malformed bicuspid valve, tracheomalacia and impaired visual function.

Two years later, BMW of North America, LLC issued a recall of all 525i vehicles made between 1989 and 1991, due to defects in the feed fuel hoses. It described the defective hoses as being able to “harden and ‘set’ over time due to engine compartment temperatures,” making it “possible that seepage between the hose and [the] fitting could result because the clamp cannot provide sufficient sealing force to compensate for the hardening of the hose.” The recall report noted that customers had associated the defect with a “conspicuous fuel odor.”

Plaintiff commenced this personal injury action in January 2008 against defendants BMW of North America, LLC, BMW of North America, Inc., BMW (US) Holding Corp. (collectively, BMW), Martin Motor Sales, Inc. and Hassel. He alleged that the vehicle’s defective fuel hose, and Hassel’s failure to timely discover and fix the defective hose, caused his injuries by exposing him in útero to toxic gasoline vapor.

In furtherance of his claims, plaintiff served notice of his intent to rely on the testimony of 10 expert witnesses at trial, including Linda Frazier, M.D., M.P.H. and Shira Kramer, M.H.S., Ph.D. As plaintiff’s primary causation experts, Dr. Frazier and Dr. Kramer were prepared to testify that plaintiff’s in útero exposure to gasoline vapor proximately caused his birth defects. For her part, Dr. Frazier concluded that plaintiff’s mother inhaled 1,000 parts per million (ppm) of gasoline vapor based on the fact that “she and others experienced symptoms of acute toxicity during exposure, such as headache, nausea and irritation of the throat and mucous membranes. In controlled studies, for symptoms such as these to occur immediately, a gasoline vapor concentration of at least 1000 ppm ... is required.” Dr. Frazier then utilized the “Bradford Hill criteria” to conclude that unleaded gasoline vapor is capable of causing the types of birth defects plaintiff suffered based on the link between exposure to the constituent chemicals of gasoline and adverse birth outcomes. Finally, after ruling out other possible causes, Dr. Frazier concluded that Debra’s “high peak exposure [ ]” to gasoline vapor during the first trimester of her pregnancy was the most likely cause of plaintiff’s injuries.

Dr. Kramer reached similar conclusions with respect to causation. Using a “weight of the evidence” analysis, she explained that “gasoline vapor and/or [the] specific chemical constituents of gasoline vapor” — specifically toluene and benzene — are “causally related to an elevated risk of birth defects.” Based on the symptoms that plaintiff’s mother said she experienced and Dr. Frazier’s estimate that plaintiff was exposed to 1,000 ppm of gasoline vapor, Dr. Kramer further concluded that plaintiff’s exposure to unleaded gasoline vapor was a substantial causative factor in plaintiff’s birth defects.

BMW and Hassel moved for summary judgment in November 2010, alleging, as relevant here, that the opinions of plaintiffs causation experts lacked a proper foundation. Supreme Court denied summary judgment, holding that plaintiffs experts provided a foundation for their opinions (2011 NY Slip Op 32006[U] [2011]). The Appellate Division modified on grounds not pertinent to this appeal, and otherwise affirmed (94 AD3d 475, 475 [1st Dept 2012]).

Defendants then moved to preclude plaintiffs causation experts from testifying at trial or, alternatively, to hold a hearing in accordance with Frye v United States (293 F 1013 [DC Cir 1923]). In support of their motions, defendants included the expert affidavits of Anthony Scialli, M.D. and Peter Lees, Ph.D., which challenged the opinions of Dr. Frazier and Dr. Kramer for reaching novel conclusions and not using generally accepted principles and methodologies.

After reviewing lengthy submissions and a number of supplemental expert reports, Supreme Court granted defendants’ motion to the extent that it precluded the testimony of Drs. Frazier and Kramer. As relevant here, the court determined that those experts did not rely on generally accepted methodologies in concluding that in útero exposure to unleaded gasoline vapor caused plaintiff’s injuries (2012 NY Slip Op 33030[U] [2012]). After granting plaintiff’s motion for reargument, Supreme Court adhered to its original decision (39 Misc 3d 1234[A], 2013 NY Slip Op 50874[U] [2013]).

The Appellate Division unanimously affirmed (115 AD3d 432 [1st Dept 2014]) and certified the following question to this Court: “Was the order of the Supreme Court, as affirmed by . . . this Court, properly made?” (2014 NY Slip Op 77833 [U] [1st Dept 2014]).

IL

In toxic tort cases, an expert opinion on causation must set forth (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered (general causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries (specific causation) (see Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]). Although it is “not always necessary for a plaintiff to quantify exposure levels precisely” (id.), we have never “dispensed with a plaintiff’s burden to establish sufficient exposure to a substance to cause the claimed adverse health effect” (Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 784 [2014]). “At a minimum, . . . there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the kind of harm that the plaintiff claims to have suffered” (id,., quoting Wright v Willamette Indus., Inc., 91 F3d 1105, 1107 [8th Cir 1996]).

Not only is it necessary for a causation expert to establish that the plaintiff was exposed to sufficient levels of a toxin to have caused his injuries, but the expert also must do so through methods “found to be generally accepted as reliable in the scientific community” (Parker, 7 NY3d at 449). This “general acceptance” requirement, also known as the Frye test, governs the admissibility of expert testimony in New York. It asks “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally” (People v Wesley, 83 NY2d 417, 422 [1994]). Although unanimity is not required, the proponent must show “consensus in the scientific community as to [the methodology’s] reliability” (id. at 439 [Kaye, Ch. J., concurring]).

Plaintiff and his experts have failed to make that showing in this case. Dr. Frazier and Dr. Kramer concluded that plaintiff was exposed to a sufficient amount of gasoline vapor to have caused his injuries based on the reports by plaintiff’s mother and grandmother that the smell of gasoline occasionally caused them nausea, dizziness, headaches and throat irritation. Plaintiff and his experts have not identified any text, scholarly article or scientific study, however, that approves of or applies this type of methodology, let alone a “consensus” as to its reliability. Therefore, the courts below properly granted defendants’ motion to preclude their testimony at trial.

Dr. Frazier claims that it is accepted practice in occupational medicine to use standardized studies of symptoms as a guide when assessing exposures retrospectively. For support, she cites to the documentation report for gasoline by the American Conference of Governmental Industrial Hygienists (ACGIH), which synthesizes the results of controlled studies and states that the threshold for immediate, mild toxic effect is approximately 1,000 ppm. She also cites to a 1991 study in which subjects exposed to known quantities of toluene and ethanol experienced an increase in headaches as their exposure level increased, as well as a 2008 report on the safety of n-Butyl alcohol in cosmetic products.

None of those sources, however, establish that Dr. Frazier’s methodology, “when properly performed, generate [s] results accepted as reliable within the scientific community generally” Wesley, 83 NY2d at 422). They merely support her conclusion that there is a dose-response relationship between exposure to the chemical constituents of gasoline and symptoms of toxicity. In Dr. Frazier’s own words, the ACGIH report lists the known “exposure levels which cause people to report symptoms such as nausea and headache because, on the whole, controlled exposure studies are reliable.” We don’t disagree with the scientific validity of controlled studies or their ability to measure symptoms in response to a given exposure. But those controlled studies do not support the inverse approach Dr. Frazier employed in this case — working backwards from reported symptoms to divine an otherwise unknown concentration of gasoline vapor. Dr. Frazier has not identified on this record any study, report, article or opinion that admits or employs such a methodology.

Dr. Frazier’s methodology is also fundamentally different from the true “odor threshold” analysis that has been admitted in other toxic tort cases. The odor threshold of a substance is the level at which the substance is capable of olfactory detection (Manuel v Shell Oil Co., 664 So 2d 470, 477 [La Ct App, 5th Cir 1995]). Concentrations below the odor threshold are, by definition, not detectable by human smell (see Dickens v Oxy Vinyls, LP, 631 F Supp 2d 859, 863 [WD Ky 2009]). Causation experts have used odor thresholds to determine, for example, that a plaintiff was occupationally exposed to 60 ppm of hexane where hexane cannot be detected below that concentration and the plaintiff testified that he smelled hexane while working (see Beckner v Bayer Cropscience, LP, 2011 WL 805788, *6 n 8, 2011 US Dist LEXIS 21501, *18 n 8 [SD W Va, Mar. 2, 2011, No. 2:05-0530]). Similarly, the expert in Magistrini v One Hour Martinizing Dry Cleaning (180 F Supp 2d 584 [D NJ 2002], affd 68 Fed Appx 356 [3d Cir 2003]) calculated a plaintiff’s occupational exposure to perchloroethylene based on the chemical’s odor threshold, coupled with other employment information, the cubic footage of the workspace and industrial literature (id. at 613-614).

Odor thresholds can be particularly helpful in occupational exposure cases, where the odor threshold of a substance exceeds permissible workplace safety standards (see Beckner, 2011 WL 805788, *6 n 8, 2011 US Dist LEXIS 21501, *18 n 8 [noting that if “one detects the odor of hexane, there is necessarily an exposure exceeding the limit set by the National Institute for Occupational Safety and Health . . . of 50 ppm”]). In some cases, however, the odor threshold of a substance is far below toxicity. Indeed, as one of plaintiffs sources explains:

“Smelling organic solvents is not indicative of a significant exposure, as the olfactory nerve can detect levels as low as several parts per million, which is not necessarily associated with toxicity. As an example, the odor threshold of toluene is 0.8 parts per million, whereas the [threshold limit value] is 100 parts per million.” (Kristen I. McMartin et al., Pregnancy Outcome Following Maternal Organic Solvent Exposure: A Meta-Analysis of Epidemiologic Studies, 34 Am J Indus Med 288, 289 [1998].)

Defendants state, and plaintiff does not dispute, that unleaded gasoline in the early 1990s had a very low odor threshold of between 0.50 and 0.76 ppm. Assuming that is correct, a person would have been able to detect the odor of unleaded gasoline vapor at less than one ppm. Had Dr. Frazier applied a true odor threshold methodology in this case, like the experts in Beckner and Magistrini, the only conclusion she could have reached was that plaintiff was exposed to at least one ppm of unleaded gasoline — the minimum level at which gasoline is detectable by human smell. Instead, Dr. Frazier averred that there is a minimum threshold of gasoline vapor beneath which individuals do not experience headache, nausea or dizziness. And because Debra experienced headaches, nausea and dizziness, Dr. Frazier concluded she must have been exposed to at least that concentration. Plaintiff has not shown that such a “symptom-threshold” methodology, unlike the odor threshold methodology admitted in other cases, has been generally accepted in the scientific community.

Although it is sometimes difficult, if not impossible, to quantify a plaintiff’s past exposure to a substance, we have not dispensed with the requirement that a causation expert in a toxic tort case show, through generally accepted methodologies, that a plaintiff was exposed to a sufficient amount of a toxin to have caused his injuries (see Joseph V. Rodricks, Reference Guide on Exposure Science, in Federal Judicial Center, Reference Manual on Scientific Evidence at 539 [3d ed 2011] [“The methodological tools necessary to ‘reconstruct’ the plaintiff’s past exposure are identical to those used to estimate current exposures, but the availability of the data necessary to apply those methods may be limited or, in some cases, nonexistent”]). It was plaintiff’s burden to show that the methodology his experts employed was generally accepted in the scientific community. Having failed to meet that burden, the courts below properly precluded Dr. Frazier’s and Dr. Kramer’s testimony that plaintiff’s exposure to gasoline vapor caused his injuries.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Judges Rivera, Abdus-Salaam, Stein and Fahey concur; Chief Judge DiFiore and Judge Garcia taking no part.

Order affirmed, with costs, and certified question answered in the affirmative.

      . Due to the procedural posture of this case, our analysis and holding are limited to the Frye inquiry of whether the experts’ techniques are generally accepted in the scientific community. We express no opinion on the “separate and distinct” question of whether there was a proper foundation for their opinions (Parker, 7 NY3d at 447).

      . Plaintiff’s reliance on Allen v Martin Surfacing (263 FRD 47 [D Mass 2009]) is similarly misplaced. The expert in that case “did not rely alone on [the plaintiff’s] symptom accounts in forming his opinion” about plaintiff’s exposure to toluene (id. at 56 [emphasis added]). The expert also considered the known amount of volatile organic compounds that were used in the resurfacing process, the manner in which those compounds would have dissipated in the gymnasium — including the weather at the time the solvents were used — and the pathways of exposure in concluding that plaintiff’s exposure approached the threshold limit value for toluene (id. at 55-56). Moreover, the defendant in Allen did not challenge the general acceptance of the expert’s methodology, as defendants do here.