author: G.B. Smith, J.

text:
    [828 NE2d 970, 796 NYS2d 13]
    Cynthia A. Rekemeyer, Appellant, v State Farm Mutual Automobile Insurance Company, Respondent.
    Argued February 9, 2005;
    decided April 5, 2005

      POINTS OF COUNSEL

      Brennan, Rehfuss & Liguori, P.C., Albany (Joseph M. Brennan of counsel), for appellant.
    I. The reasoning set forth in Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]) should be extended to require an insurer to demonstrate prejudice before disclaiming coverage based upon late notice of claim in a claim for supplemental uninsured/underinsured motorists benefits. (Mark A. Varrichio & Assoc. v Chicago Ins. Co., 312 F3d 544; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Banks v American Mfrs. Mut. Ins. Co., 306 AD2d 120; New York Mut. Underwriters v Kaufman, 257 AD2d 850; Freeman v MBL Life Assur. Corp., 60 F Supp 2d 259; Gaidon v Guardian Life Ins. Co. of Am., 255 AD2d 101; Rochester Radiology Assoc., P.C. v Aetna Life Ins. Co., 616 F Supp 985; Barile v Kavanaugh, 67 NY2d 392; Continental Auto Lease Corp. v Campbell, 19 NY2d 350; Fried v Seippel, 80 NY2d 32.) II. The Appellate Division, Third Department, erred when it reversed the determination of the trial court that plaintiff-appellant notified defendant-respondent of her claim for supplemental uninsured/underinsured motorists coverage “as soon as practicable” under the particular circumstances of this case. (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; Unwin v New York Cent. Mut. Fire Ins. Co., 268 AD2d 669; Matan v Nationwide Mut. Ins. Co., 243 AD2d 978; Murphy v New York Cent. Mut. Fire Ins. Co., 307 AD2d 689; Medina v State Farm Mut. Auto. Ins. Co., 303 AD2d 987; Rose v Furgerson, 281 AD2d 857, 97 NY2d 602; Owen v Allstate Ins. Co., 250 AD2d 1018; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491.)

      Goldberg Segalla LLP, Buffalo (Daniel W. Gerber, Thomas F. Segalla and Matthew S. Lerner of counsel), for respondent.
    I. A denial upon late notice of claim requires no demonstration of prejudice. (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; American Home Assur. Co. v International Ins. Co., 90 NY2d 433; Martinson v Massachusetts Bay Ins. Co., 947 F Supp 124; Fireman’s Fund Ins. Co., Inc. v Schuster Films, Inc., 811 F Supp 978; Brown v Travelers Ins. Co., 4 AD3d 835; DiGuglielmo v Travelers Prop. Cas., 6 AD3d 344; Blue Ridge Ins. Co. v Jiminez, 7 AD3d 652; Banks v American Mfrs. Mut. Ins. Co., 306 AD2d 120; Unwin v New York Cent. Mut. Fire Ins. Co., 268 AD2d 669.) II. It is unnecessary and it would be a mistake for this Court to depart from the well-settled late note of claim rule. (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Restoration Realty Corp. v Robero, 58 NY2d 1089; J.N.A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392; Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564, 4 NY2d 1028; First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64; All City Ins. Co. v Pioneer Ins. Co., 194 AD2d 424; Solomon v Continental Fire Ins. Co. of City of N.Y., 160 NY 595; Jacob & Youngs v Kent, 230 NY 239; Coleman v New Amsterdam Cas. Co., 247 NY 271.) III. Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]) did not depart from the no-prejudice rule for late notice of claim in the supplemental uninsured/underinsured motorists context. (Lauritano v American Fid. Fire Ins. Co., 3 AD2d 564.) IV The policy rationales upon which other courts have relied do not warrant departing from the well-settled case law concerning the no-prejudice rule. (Bersani v General Acc. Fire & Life Assur. Corp., 36 NY2d 457; Matter of Manhattan & Bronx Surface Tr. Operating Auth. v Evans, 95 AD2d 470; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Coleman v New Amsterdam Cas. Co., 247 NY 271; Matter of New York Cent. Mut. Fire Ins. Co. [Benson], 277 AD2d 920.) V Any change in this Court’s application of prejudice to late notice should only be applied prospectively. (Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; Gager v White, 53 NY2d 475; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436.) VI. The Appellate Division correctly held that Cynthia Rekemeyer did not give notice of her intent to file a supplemental uninsured/underinsured motorists claim as soon as practicable. (Owen v Allstate Ins. Co., 250 AD2d 1018; Matter of State Farm Mut. Auto. Ins. Co. v Bennett, 289 AD2d 496; Zuckerman v City of New York, 49 NY2d 557; Matter of Nationwide Ins. Co. [De Rose], 241 AD2d 607; Matter of

      Nationwide Mut. Ins. Co. v Wexler, 276 AD2d 490; Matter of Nationwide Ins. Co. v Bietsch, 224 AD2d 623.)

      Hiscock & Barclay, LLP, Albany (Mark W. Blanchfield of counsel), for New York Insurance Association, Inc., amicus curiae.
    I. Requiring insurers to show prejudice to enforce the reasonable notice condition would be a complete sea change in New York law. (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; D'Aloia v Travelers Ins. Co., 85 NY2d 825; People v Hobson, 39 NY2d 479; Heyert v Orange & Rockland Util., 17 NY2d 352; Cenven v Bethlehem Steel Corp., 41 NY2d 842.) II. The policy reasons behind a no-prejudice rule still exist with respect to notice of the circumstances of the claim. (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; American Tr. Ins. Co. v Sartor, 3 NY3d 71; Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854.) III. The case law from other states is inconsistent with New York’s legal scheme. (Sablosky v Gordon Co., 73 NY2d 133; Morris v Snappy Car Rental, 84 NY2d 21; American Tr. Ins. Co. v Sartor, 3 NY3d 71; 2423 Mermaid Realty Corp. v New York Prop. Ins. Underwriting Assn., 142 AD2d 124; Dyno-Bite, Inc. v Travelers Cos., 80 AD2d 471; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487.)

      Rivkin Radler LLP, Uniondale (Evan H. Krinick and Alan C. Eagle of counsel), and Wiley Rein & Fielding LLP, Washington, D.C. (Laura A. Foggan and John C. Yang of counsel), for Complex Insurance Claims Litigation Association, amicus curiae.
    I. New York consistently has adhered to the no-prejudice rule. (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Argo Corp. v Greater N.Y. Mut. Ins. Co., 1 AD3d 264; American Home Assur. Co. v International Ins. Co., 90 NY2d 433; Fisher v Hanover Ins. Co., 288 AD2d 806; T & S Masonry v State Ins. Fund, 290 AD2d 308; Centenniel Ins. Co. v Hoffman, 265 AD2d 629; Nationwide Mut. Ins. Co. v Vivas, 267 AD2d 105.) II. Rationales for the no-prejudice rule are well-established and applicable to the present facts. (Graf v Hope Bldg. Corp., 254 NY 1; First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630; Greenfield v Philles Records, 98 NY2d 562; Matter of

      Southeast Banking Corp., 93 NY2d 178; Matter of Davis v Block & Smith, 297 NY 20; United, States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Douglas v Knickerbocker Life Ins. Co., 83 NY 492; AXA Mar. & Aviation Ins. [U.K.] Ltd. v Seajet Indus. Inc., 84 F3d 622; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; American Ins. Co. v Fairchild Indus., Inc., 56 F3d 435.) III. The lower court properly declined to depart from the no-prejudice rule. (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487; Unwin v New York Cent. Mut. Fire Ins. Co., 268 AD2d 669; Matter of Nationwide Ins. Co. [De Rose], 241 AD2d 607; DiGuglielmo v Travelers Prop. Cas., 6 AD3d 344; Sayed v Macari, 296 AD2d 396; Shaw Temple A.M.E. Zion Church v Mount Vernon Fire Ins. Co., 199 AD2d 374; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491; Mark A. Varrichio & Assoc, v Chicago Ins. Co., 312 F3d 544; Cade & Saunders, P.C. v Chicago Ins. Co., 332 F Supp 2d 490; Green Door Realty Corp. v TIG Ins. Co., 329 F3d 282.)
   OPINION OF THE COURT

G.B. Smith, J.

This is a declaratory judgment action in which plaintiff seeks a declaration that she is entitled to payment under the supplementary uninsured/underinsured motorists (SUM) provision of her insurance contract. The insurance carrier disclaimed on the ground that written notice of the SUM claim was not given as soon as practicable and that a copy of the summons and complaint in plaintiffs legal action was not immediately given to it. On the facts of this case, we hold that the carrier must show prejudice before it may disclaim coverage due to plaintiffs late notice of SUM claim.

On May 8, 1998, plaintiff, Cynthia Rekemeyer, was rear-ended while driving her car. Shortly after the accident occurred, Rekemeyer notified State Farm of the occurrence and made a claim for no-fault benefits. At the time of the accident, plaintiff had been unable to work for 18 years due to an existing back problem. Throughout 1998, plaintiff received medical care from a number of doctors for accident related injuries. In December 1998 and again in February 2000, at the request of State Farm, plaintiff was evaluated by a doctor of State Farm’s choice concerning accident related injuries.

On April 27, 1999, plaintiff filed suit against the driver of the other car, Sherwood Bouyea. By letter dated July 21, 1999, plaintiff notified State Farm of the lawsuit. In a bill of particulars dated July 1999, plaintiff alleged that she had suffered “severe and permanent injuries to her left arm and cervical spine.” In September 1999, plaintiff learned that Bouyea’s maximum liability coverage was $50,000. Plaintiffs demand was for $1 million.

In October 1999, plaintiff underwent surgery on her back for injuries she alleges she sustained as a result of the car accident. On March 12, 2000, Bouyea’s attorney offered $45,000 to settle the claim. On March 31, 2000, plaintiff notified State Farm that she would pursue SUM coverage under her own policy. On April 10, 2000, Bouyea’s attorney made a settlement offer of $50,000. On April 25, 2000, State Farm disclaimed coverage based upon plaintiff’s failure to notify it of the SUM claim as soon as practicable and because of failure to notify it immediately of the lawsuit.

In October 2000, plaintiff brought this declaratory judgment action against State Farm. State Farm answered the complaint. It then filed a motion for summary judgment dismissing the complaint for failure to comply with the insurance contract provision requiring notice of the SUM claim as soon as practicable. On June 19, 2003, Supreme Court denied defendant’s motion to dismiss, and, citing Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso (93 NY2d 487 [1999]), granted plaintiffs motion for a declaratory judgment for SUM coverage. Supreme Court stated:

“On the facts of this case, it cannot be concluded that plaintiff did not give notice of her SUM claim as soon as practicable as a matter of law. The slowly evolving nature of plaintiff’s injuries, her preexisting injury and daily pain, intervening surgeries and the bona fide questions as to severity and causation of the new injury, along with the tortfeasor’s defenses on the issue of liability can reasonably be said to have prevented knowledge that the tortfeasor was underinsured until at or about such time as a settlement offer near or at the limit of his policy was tendered. It was at that point that plaintiff promptly notified defendant of her SUM claim. Thus, defendant’s motion must be denied and plaintiffs cross motion will be granted.”

On May 20, 2004, Appellate Division reversed and determined:

“[P]laintiff knew or reasonably should have known that Bouyea’s insurance was insufficient to provide full compensation for her injuries and yet she inexplicably waited six months before providing notice to defendant of her intent to make a claim for supplemental coverage. We find such notice to have been untimely and, thus, Supreme Court erred in granting her cross motion for summary judgment.” (7 AD3d 955, 957 [2004].)

On September 21, 2004, this Court granted plaintiff leave to appeal.

Initially, plaintiff argues that she submitted her notice of SUM claim to State Farm as soon as practicable and did not breach the insurance contract. We have held that in the SUM context, the phrase “as soon as practicable” means that “the insured must give notice with reasonable promptness after the insured knew or should reasonably have known that the tortfeasor was underinsured” (Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d at 495). The requirement that the insured give notice as soon as practicable “contemplates elasticity and a case-by-case inquiry as to whether the timeliness of the notice was reasonable, taking all of the circumstances into account” (see id. at 494; see also Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 19 [1979]).

We agree with the Appellate Division that plaintiff did not submit her notice of SUM claim as soon as practicable. Although plaintiff had disabling injuries prior to the accident that may have interfered with her assessment of the extent of new injuries, she stated in her bill of particulars in the underlying personal injury action—drafted eight months before plaintiff notified defendant of her claim for SUM coverage—that she had suffered serious and permanent injuries as a result of the accident. The record thus belies any claim that she was unaware that her injuries were serious. Moreover, Bouyea informed plaintiff in September 1999 that he was insured for only $50,000. Accordingly, the Appellate Division appropriately concluded that plaintiffs notice of her SUM claim in March 2000—approximately six months later—was untimely.

Plaintiff also urges this Court to relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident. This argument is persuasive. The rule in New York has been for years that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This rule is known as the no-prejudice rule. Although this rule has sometimes been characterized as the “traditional rule,” it is actually a limited exception to two established contract principles: “(1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice; and (2) that a contractual duty [requiring strict compliance] ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition” (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992] [citations omitted]). The idea behind strict compliance with the notice provision in an insurance contract was to protect the carrier against fraud or collusion (see id.).

More recently in Matter of Brandon (Nationwide Mut. Ins. Co.), this Court held that a SUM carrier that received timely notice of a claim must show prejudice before disclaiming SUM benefits based on late notice of a legal action (see 97 NY2d 491, 494-495, 498 [2002]). In the SUM context, the Brandon court was unwilling to extend the no-prejudice exception in regard to late notice of a legal suit because “unlike most notices of claim— which must be submitted promptly after the accident, while an insurer’s investigation has the greatest potential to curb fraud— notices of legal action become due at a moment that cannot be fixed relative to any other key event, such as the injury, the discovery of the tortfeasor’s insurance limits or the resolution of the underlying tort claim.” (Id. at 498.)

There are important public policy issues that continue to arise both in federal and state courts which warrant a review of the no-prejudice exception, particularly when the insured has given timely notice of occurrence or claim (see Mark A. Varrichio & Assoc, v Chicago Ins. Co., 312 F3d 544, 548-550 [2002] [certified question to New York Court of Appeals of whether timely notice of occurrence required the insurer to show prejudice before disclaiming for late notice of lawsuit; question withdrawn because parties settled]). This case presents us with an opportunity to reexamine the applicability of the no-prejudice rule in the SUM context.

The facts of the current case, while different from Brandon, also warrant a showing of prejudice by the carrier. Here, plaintiff gave timely notice of the accident and made a claim for no-fault benefits soon thereafter. That notice was sufficient to promote the valid policy objective of curbing fraud or collusion. Moreover, the record indicates that State Farm undertook an investigation of the accident. It also required plaintiff to undergo medical exams in December 1998 and February 2000. Under these circumstances, application of a rule that contravenes general contract principles is not justified. Absent a showing of prejudice, State Farm should not be entitled to a windfall (Brandon, 97 NY2d at 496 n 3, citing Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, 230 [Colo 2001]). Additionally, State Farm should bear the burden of establishing prejudice “because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative” (id. at 498; see also Unigard, 79 NY2d at 584 [placing the burden of showing prejudice on the reinsurer]). Thus, we hold that where an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage.

Our analysis today is in line with other jurisdictions which require that carriers show prejudice before untimely notice of a SUM claim is held to be a material breach in the contract warranting disclaimer (see Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, supra; State Auto. Mut. Ins. Co. v Youler, 183 W Va 556, 396 SE2d 737 [1990]; Ouellette v Maine Bonding & Cas. Co., 495 A2d 1232 [Me 1985]; State Farm Mut. Auto. Ins. Co. v Burgess, 474 So 2d 634 [Ala 1985]; Pennsylvania Gen. Ins. Co. v Becton, 475 A2d 1032 [RI 1984]; Rampy v State Farm Mut. Auto. Ins. Co., 278 So 2d 428, 435 [Miss 1973]; see also Alcazar v Hayes, 982 SW2d 845, 854 [Tenn 1998] [where an insured has failed to provide timely notice of a claim, there is a rebuttable presumption that the carrier has been prejudiced]).

Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendant’s motion for summary judgment and remitting to the trial court for the carrier to have an opportunity to demonstrate prejudice, and, as so modified, affirmed.

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

Order modified, etc.


source: Caselaw Access Project

author: R.S. Smith, J. Rosenblatt, J. (dissenting in part).

license: Public Domain

text:
    [829 NE2d 266, 796 NYS2d 302]
    In the Matter of The New York Times Company et al., Appellants-Respondents, and Catherine T. Regenhard et al., Intervenors-Appellants, v City of New York Fire Department, Respondent-Appellant.
    Argued February 9, 2005;
    decided March 24, 2005

      POINTS OF COUNSEL

      David E. McCraw, New York City, for appellants-respondents.
    I. The Appellate Division erred in applying the intra-agency exemption to materials that were not part of a deliberative process. (Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Gould v New York City Police Dept., 89 NY2d 267; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131; Jordan v United States Dept, of Justice, 591 F2d 753; Maricopa Audubon Socy. v United States Forest Serv., 108 F3d 1089; Assembly of State of Cal. v United States Dept. of Commerce, 968 F2d 916; Vaughn v Rosen, 523 F2d 1136; Grand Cent. Partnership, Inc. v Cuomo, 166 F3d 473; Immuno AG. v Moor-Jankowski, 77 NY2d 235.) II. Release of unredacted 911 tapes will not constitute an unwarranted invasion of personal privacy.
      (Brandes Meat Corp. v Cromer, 146 AD2d 666; Matter of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270; Matter of Johnson v New York City Police Dept., 257 AD2d 343, 94 NY2d 791; Matter of Dobranski v Houper, 154 AD2d 736; Bethel v New York City Tr. Auth., 92 NY2d 348; Howell v New York Post Co., 81 NY2d 115; New York Times Co. v National Aeronautics & Space Admin., 920 F2d 1002; Matter of New York 1 News v Office of President of Borough of Staten Is., 231 AD2d 524; Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359; Matter of Laureano v Grimes, 179 AD2d 602.)

      Michael A. Cardozo, Corporation Counsel, New York City (John Hogrogian, Lawrence S. Kahn, Pamela Seider Dolgow and Marilyn Richter of counsel), for respondent-appellant.
    I. As the Supreme Court and the Appellate Division correctly held, the Fire Department can properly redact the callers’ words from the records of the 911 telephone calls before disclosing those records. The Fire Department did show that the personal privacy exemption under the Freedom of Information Law authorizes such redaction. (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 67 NY2d 562; Matter of Hanig v State of N.Y. Dept. of Motor Vehs., 79 NY2d 106; Matter of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270; Matter of Dobranski v Houper, 154 AD2d 736; Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410; Matter of Fink v Lefkowitz, 47 NY2d 567; National Archives and Records Admin, v Favish, 541 US 157; New York Times Co. v National Aeronautics & Space Admin., 920 F2d 1002; Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294; Matter of De Oliveira v Wagner, 274 AJD2d 904.) II. As the Supreme Court and the Appellate Division correctly held, the Fire Department can properly redact intra-agency materials from the records of the dispatch calls and of the oral histories before disclosing those records. The Fire Department did show that the intra-agency materials exemption under the Freedom of Information Law authorizes such redaction. (Matter of Gould v New York City Police Dept, 89 NY2d 267; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Morgan v New York State Dept, of Envtl. Conservation, 9 AD3d 586; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131; Matter of Kaufman v New York State Dept, of Envtl. Conservation, 289 AD2d 826; National Labor Relations Bd. v Sears, Roebuck & Co., 421 US 132; Maricopa Audubon Socy. v United States Forest Serv., 108 F3d 1089; Rothenberg v City Univ. of

      N.Y., 191 AD2d 195, 81 NY2d 710.) III. The Appellate Division erred as a matter of law in holding that the Fire Department could not, prior to disclosure, redact from the records of the oral histories passages recounting moments of high emotion and revealing personal details. Such material comes within the exemption for personal privacy. (Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410.) IV Contrary to the holdings of the Supreme Court and the Appellate Division, the Fire Department did show that the law enforcement exemption under the Freedom of Information Law applied to the records at issue. The Fire Department compiled these records for law enforcement purposes, namely, at the request of the prosecution in the Zacarías Moussaoui criminal case. Disclosure of the records that may be offered into evidence at trial would interfere with the Moussaoui trial and endanger Moussaoui’s right to a fair trial. (John Doe Agency v John Doe Corp., 493 US 146.)

      Norman Siegel, New York City, and Kramer Levin Naftalis & Frankel LLP (Thomas H. Moreland, Ilyssa B. Sena and Jennifer Jones of counsel) for intervenors-appellants.
    I. The privacy exemption does not apply to any of the materials. (Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees of State Univ. of N.Y., 147 Misc 2d 847; Matter of Tri-State Publ. Co. v City of Port Jervis, 138 Misc 2d 147; National Archives and Records Admin, v Favish, 541 US 157; Matter of Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of N.Y. at Farmingdale, 87 NY2d 410; Anthony v City of New York, 339 F3d 129; Matter of Empire Realty Corp. v New York State Div. of Lottery, 230 AD2d 270; Bethel v New York City Tr. Auth., 92 NY2d 348.) II. The Appellate Division’s decision should be reversed to the extent that it held that the materials fall under the intra-agency exception. (Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Matter of Mothers on Move v Messer, 236 AD2d 408; Matter of New York 1 News v Office of President of Borough of Staten Is., 231 AD2d 524; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131; Matter of David v Lewisohn, 142 AD2d 305; Rothenberg v City Univ. of N.Y., 191 AD2d 195; Matter of MacRae v Dolce, 130 AD2d 577; Matter of Johnson Newspaper Corp. v Stainkamp, 94 AD2d 825, 61 NY2d 958.)
   OPINION OF THE COURT

R.S. Smith, J.

The issue here is whether the New York City Fire Department is required by the Freedom of Information Law (FOIL) to disclose tapes and transcripts of certain conversations that occurred on and shortly after September 11, 2001. Supreme Court and the Appellate Division held that FOIL requires disclosure of some, but not all, of the materials in dispute. We affirm most of the rulings below, but we modify the Appellate Division’s order in two respects.

Facts and Procedural History

Some four months after the September 11 attacks on the World Trade Center, Jim Dwyer, a New York Times reporter, requested “various records” from the Fire Department. In the two requests that are still disputed, he asked for:

“All transcripts of interviews conducted by the department with members of the FDNY concerning the events of Sept. 11, 2001. (These might be called ‘oral histories.’) . . .
“Any and all tapes and transcripts of any and all radio communications involving any FDNY personnel on Sept. 11, starting from 8:46 AM.”

The Fire Department denied the first of the above requests, and also denied the second in large part. As a result, three categories of tapes and transcripts are now at issue. They contain: (1) calls made on September 11 to the Department’s 911 emergency service; (2) calls made on the same day on the Fire Department’s internal communications system, involving Department dispatchers and other employees, which are referred to as “dispatch calls”; and (3) “oral histories,” consisting of interviews with firefighters in the days following September 11.

The New York Times and Dwyer brought this CPLR article 78 proceeding to compel disclosure. Later, family members of eight men who died at the World Trade Center were permitted to intervene in support of the Times’s and Dwyer’s position. No family member of anyone else killed in the September 11 attacks has appeared on either side.

Supreme Court ordered disclosure of tapes and transcripts containing: (1) the 911 calls, to the extent that the words recorded are those of public employees and of the eight men whose survivors sought disclosure, but redacted to delete the words of other people who called 911; (2) the dispatch calls, redacted to delete the opinions and recommendations of Fire Department employees; and (3) the oral histories, redacted to delete opinions and recommendations and the “personal expressions of feelings” of the interviewees. The Appellate Division affirmed these rulings, except that it ordered the “personal expressions of feelings” in the oral histories disclosed. We granted both sides’ motions for leave to appeal.

In this Court, the Times, Dwyer and the interveners seek disclosure of all materials in all three categories. The Fire Department asks us to affirm the Appellate Division’s order with two exceptions: It asks us to “reinstate” Supreme Court’s ruling by authorizing the redaction from the oral histories of “passages recounting moments of high emotion and revealing personal details,” and it asks that disclosure be denied as to six records said by the United States Department of Justice to be possible exhibits in the impending federal criminal trial of Zacarías Moussaoui, who is alleged to have had a role in the September 11 attacks.

We now affirm the Appellate Division’s order with two modifications: (1) we direct that the entire oral histories be disclosed, except for specifically-identified portions that can be shown likely to cause serious pain or embarrassment to an interviewee; and (2) we direct that the Department of Justice be given a chance to demonstrate that disclosure of the six potential exhibits would interfere with the Moussaoui case, or would deprive either the United States Government or Moussaoui of a fair trial.

Discussion

FOIL requires state and municipal agencies to “make available for public inspection and copying all records,” subject to 10 exceptions (Public Officers Law § 87 [2]). Here, the Fire Department relies on three of those exceptions—the “privacy,” “law enforcement” and “intra-agency” exceptions. To the extent they are relevant here, these exceptions permit agencies to

“deny access to records or portions thereof that:
“(b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article;
“(e) are compiled for law enforcement purposes and which, if disclosed, would:
“i. interfere with law enforcement investigations or judicial proceedings; [or]
“ii. deprive a person of a right to a fair trial or impartial adjudication; . . .
“(g) are inter-agency or intra-agency materials which are not:
“i. statistical or factual tabulations or data; [or]
“ii. instructions to staff that affect the public.” (Id.)

The Fire Department contends that the privacy exception applies to the portions of the 911 calls that are in dispute; that the intra-agency exception applies to the disputed portions of the dispatch calls; and that both these exceptions apply to portions of the oral histories. The Department also contends that the law enforcement exception applies to the six potential exhibits at the Moussaoui trial, but it does not identify those six exhibits or say which categories they belong to. Thus, we first consider the application of the privacy and intra-agency exceptions to each category of materials, and then discuss the law enforcement exception.

A. The 911 Calls

The Fire Department does not now oppose disclosure of the words spoken in the 911 calls by 911 operators, or by the eight men whose families are seeking disclosure. Thus, the only issue before us is whether the disclosure of words spoken by other callers would constitute an “unwarranted invasion of personal privacy.” Supreme Court and the Appellate Division both held that it would, and, in view of the extraordinary facts in this case, we agree.

We first reject the argument, advanced by the parties seeking disclosure here, that no privacy interest exists in the feelings and experiences of people no longer living. The privacy exception, it is argued, does not protect the dead, and their survivors cannot claim “privacy” for experiences and feelings that are not their own. We think this argument contradicts the common understanding of the word “privacy.”

Almost everyone, surely, wants to keep from public view some aspects not only of his or her own life, but of the lives of loved ones who have died. It is normal to be appalled if intimate moments in the life of one’s deceased child, wife, husband or other close relative become publicly known, and an object of idle curiosity or a source of titillation. The desire to preserve the dignity of human existence even when life has passed is the sort of interest to which legal protection is given under the name of privacy. We thus hold that surviving relatives have an interest protected by FOIL in keeping private the affairs of the dead (cf. National Archives and Records Admin, v Favish, 541 US 157 [2004]).

The recognition that surviving relatives have a legally protected privacy interest, however, is only the beginning of the inquiry. We must decide whether disclosure of the tapes and transcripts of the 911 calls would injure that interest, or the comparable interest of people who called 911 and survived, and whether the injury to privacy would be “unwarranted” within the meaning of FOIL’S privacy exception. Public Officers Law § 87 (2) (b), which creates the privacy exception, refers to section 89 (2), which contains a partial definition of “unwarranted invasion of personal privacy,” but section 89 (2) (b) is of little help here; it says only that “[a]n unwarranted invasion of personal privacy includes, but shall not be limited to” six specific kinds of disclosure. None of the six is relevant to this case, and so we must decide whether any invasion of privacy here is “unwarranted” by balancing the privacy interests at stake against the public interest in disclosure of the information.

The privacy interests in this case are compelling. The 911 calls at issue undoubtedly contain, in many cases, the words of people confronted, without warning, with the prospect of imminent death. Those words are likely to include expressions of the terror and agony the callers felt and of their deepest feelings about what their lives and their families meant to them. The grieving family of such a caller—or the caller, if he or she survived—might reasonably be deeply offended at the idea that these words could be heard on television or read in the New York Times.

We do not imply that there is a privacy interest of comparable strength in all tapes and transcripts of calls made to 911. Two factors make the September 11 911 calls different. First, while some other 911 callers may be in as desperate straits as those who called on September 11, many are not. Secondly, the September 11 callers were part of an event that has received and will continue to receive enormous—perhaps literally unequalled—public attention. Many millions of people have reacted, and will react, to the callers’ fate with horrified fascination. Thus it is highly likely in this case—more than in almost any other imaginable—that, if the tapes and transcripts are made public, they will be replayed and republished endlessly, and .that in some cases they will be exploited by media seeking to deliver sensational fare to their audience. This is the sort of invasion that the privacy exception exists to prevent.

We acknowledge that not everyone will have the same reaction to disclosure of the 911 tapes. The intervenors in this case, whose husbands and sons died at the World Trade Center, favor disclosure. They may feel, as other survivors may also, that to make their loved ones’ last words public is a fitting way to allow the world to share the callers’ sufferings, to admire their courage, and to be justly enraged by the crime that killed them. This normal human emotion is no less entitled to respect than a desire for privacy. Recognizing this, the Fire Department does not challenge the lower courts’ rulings that the words of the eight relatives of the intervenors be disclosed, and has assured us that it will honor similar requests made in the future by the families of other September 11 callers. That commitment must be kept. Surviving callers who want disclosure are also entitled to it (Public Officers Law § 89 [2] [c] [ii]). But the privacy interests of those family members and surviving callers who do not want disclosure nevertheless remain powerful.

On the other hand, there is a legitimate public interest in the disclosure of these 911 calls. In general, it is desirable that the public know as much as possible about the terrible events of September 11. And more specifically, as the Times and Dwyer point out, the public has a legitimate interest in knowing how well or poorly the 911 system performed on that day. The National Commission on Terrorist Attacks Upon the United States, which had access to the tapes and transcripts at issue here, identified significant flaws in the system’s performance (9/11 Commission Report, at 286-287, 295, 304, 318, available on the Internet at <http://www.9-llcommission.gov>, cached at <http://www.courts.state.ny.us/reporter/webdocs/fullreport.pdf>), and more public scrutiny might make these problems better understood. But the parties seeking disclosure here do not request only particular calls that may be relevant to this subject; they seek complete disclosure of all the 911 calls.

We are not persuaded that such disclosure is required by the public interest. Those requesting it have not shown that the information that will be disclosed under our ruling—including the words of the 911 operators, and of callers whose survivors seek, or who themselves seek, disclosure—will be insufficient to meet the public’s need to be informed. We conclude that the public interest in the words of the 911 callers is outweighed by the interest in privacy of those family members and callers who prefer that those words remain private.

B. The Dispatch Calls

The dispatch calls are communications within the Fire Department; the only participants in the calls were Department dispatchers and other Department employees. The tapes and transcripts of these calls are therefore “intra-agency materials,” and are protected from disclosure by Public Officers Law § 87 (2) (g) unless they fit within one of two exclusions from the intra-agency exception: the exclusions for “statistical or factual tabulations or data” (§ 87 [2] [g] [i]) and for “instructions to staff that affect the public” (§ 87 [2] [g] [ii]). We interpreted the first of these exclusions in Matter of Gould v New York City Police Dept. (89 NY2d 267, 277 [1996]), where we said that “[f]actual data . . . simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” (citations omitted). Here, Supreme Court and the Appellate Division ordered that the dispatch calls be disclosed to the extent they consist of factual statements or instructions affecting the public, but that they be redacted to eliminate nonfactual material—i.e., opinions and recommendations. This is, in our view, a straightforward and correct application of the statute as we interpreted it in Gould.

The parties seeking disclosure argue otherwise, relying on cases in which we have characterized the intra-agency exception as being applicable to “ ‘deliberative material,’ i.e., communications exchanged for discussion purposes not constituting final policy decisions” (Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 699 [1993], citing Matter of Xerox Corp. v Town of Webster, 65 NY2d 131 [1985]). In Russo and Xerox, however, we were concerned with materials that were arguably not “intra-agency” at all—in Russo, films shown by a public college to its students, and in Xerox, a report prepared for a public agency by an outside consultant. In deciding that the films were not intra-agency materials, and that the report was, we relied on the facts that the films were not used by the college as part of an internal decision-making process, while the report was used for just that purpose. Neither case implies that materials that fit squarely within the plain meaning of “intraagency”—in this case, tapes and transcripts of internal conversations about the agency’s work—are not within the scope of the intra-agency exception to FOIL.

The parties seeking disclosure also rely on our reference in Gould to “the consultative or deliberative process of government decision making” (81 NY2d at 277). But we used those words in Gould simply to define the scope of the “factual data” exclusion from the intra-agency exception; we spoke of “objective information, in contrast to” exchanges that were part of “the consultative or deliberative process.” (Id.) Gould does not hold, as the parties seeking disclosure seem to suggest, that the intra-agency exception shields from disclosure only formal, lengthy or profound policy discussions.

The point of the intra-agency exception is to permit people within an agency to exchange opinions, advice and criticism freely and frankly, without the chilling prospect of public disclosure (see Xerox, 65 NY2d at 132, citing Matter of Sea Crest Constr. Corp. v Stubing, 82 AD2d 546, 549 [2d Dept 1981]). This purpose applies not only to comments made in official policy meetings and well-considered memorandums, but also to suggestions and criticisms offered with little chance for reflection in moments of crisis. A Fire Department dispatcher who believes that a rescue operation is being badly handled should feel free to say so without the concern that a tape of his or her remarks will be made public.

C. The Oral Histories

The record here leads us to conclude, subject to the qualification discussed below, that the oral histories are not protected from disclosure by either the privacy or the intra-agency exception. We infer from the record that the oral histories were exactly what their name implies—spoken words recorded for the benefit of posterity—and that the Department intended, and the people , interviewed for these histories understood or reasonably should have understood, that the words spoken were destined for public disclosure. If this inference is correct, the privacy exception obviously has no application here. Nor does the intra-agency exception apply where, though agency employees are speaking to each other, the agency and the employees understand and intend that a tape of the conversation will be made public. The point of the intra-agency exception, as we explained above, is to permit the internal exchange of candid advice and opinions between agency employees. The exception is not applicable to words that are intended to be passed on verbatim to the world at large.

The record evidence about the purpose and origin of the oral histories comes largely from an affidavit submitted by a representative of the Fire Department. The affidavit adopts the title “oral histories,” previously used in Dwyer’s request, to identify these materials, and says that after September 11 the Fire Department decided “to promptly record the recollections of Fire Department personnel who were present at the World Trade Center site on that day.” These recollections, the affidavit says, were collected for two purposes: “to be an invaluable historical record, in addition to assisting in any investigations or assessments of the incident.”

The Fire Department’s affidavit also says that all interviewees “were assured that the interviews would be held in complete confidence.” This statement, if true, would be highly relevant to this case—but it was later acknowledged to be in error. The parties stipulated that the Fire Department “has withdrawn its claim that each of these interviews (‘oral histories’) with Fire Dept, personnel was recorded with a promise of confidentiality to the interviewee, since it has come to the [Department’s] attention that only some interviews included such a promise.” After the stipulation, the Fire Department made no attempt to substantiate even the claim that “some” interviewees were promised confidentiality. The Department does not now rely on the existence of any such promise.

While the record is less clear than it might be, it establishes that the interviews were intended as an “historical record”— which implies that the interviews would be disclosed to the public. If that is the case, they should not be protected from disclosure merely because they also were, as the Fire Department says, intended to be used in “investigations or assessments.” The record does not show that any interviewee was given a promise of confidentiality or led to believe that his or her words would be kept secret. Thus, the best inference is that the Department intended, and the interviewees knew or should have known, that the words spoken in the interviews would become a public record. If this is not true the burden was on the Department—which is in possession of the relevant facts—to prove otherwise (see Matter of Newsday, Inc. v Empire State Dev. Corp., 98 NY2d 359, 362 [2002]; Matter of Mantica v New York State Dept, of Health, 94 NY2d 58, 61 [1999]). The Department has not met that burden.

This logic leads to the conclusion that all of the oral histories are discloseable under FOIL. We add one qualification, however, because we are given pause by the Fire Department’s insistence that “the oral histories contain numerous statements which are exceedingly personal in nature, describing the interviewees’ intimate emotions such as fears, concern for themselves and loved ones, and horror at what they saw and heard.” If indeed some firefighters made such statements in what they were led to believe was a private setting, it may be unfair to invade their privacy based solely on the inadequacy of the evidence the Department has submitted. We therefore direct that the Department be given an opportunity, on remand, to call to Supreme Court’s attention specific portions of the oral histories which, in the Fire Department’s view, would cause serious pain or embarrassment to interviewees if they were disclosed. Supreme Court should then consider, following an in camera inspection if necessary, whether those portions of the oral histories are subject to the privacy exception, taking into account any further evidence that may be submitted on the question of whether the interviewees thought the interviews were private.

D. The Law Enforcement Exception

As to the six unidentified tapes and/or transcripts which the United States Department of Justice has said it intends to use in evidence at the trial of Zacarías Moussaoui, the issue is whether they were “compiled for law enforcement purposes” and whether their disclosure would either “interfere with law enforcement investigations or judicial proceedings” or would “deprive a person of a right to a fair trial or impartial adjudication.” We agree with the courts below that, on this record, there is no showing that disclosure would interfere with the Moussaoui trial or cause any unfairness.

The materials in issue are already in the Justice Department’s possession, and have been made available to Moussaoui; thus their public disclosure would not give the equivalent of discovery to either side in the criminal case. Theoretically, their disclosure before Moussaoui’s jury is selected might create some prejudice among potential jurors. But the items cannot, by their nature, contain anything specifically relating to Moussaoui; they relate to the September 11 events generally. Potential jurors are already exposed to an enormous mass of publicly available information about the events of September 11—most of which obviously will not be offered in evidence at the Moussaoui trial. In this context, it is hard to see how the public disclosure of six items that the jury will see at trial anyway could have any significant effect on the federal court’s ability to impanel an impartial jury.

In short, the record would justify affirming the Appellate Division’s ruling that the law enforcement exception does not apply to the records in issue. Once again, however, we qualify our conclusion, because we are mindful of the enormous importance to the public interest of an orderly and fair trial for Moussaoui. The federal court has shown some concern about pretrial publicity; it has entered an order, binding on the parties to the Moussaoui case—though not, of course, on the Fire Department or the Times—prohibiting disclosure of “discovery materials” produced by the prosecutors to Moussaoui and his counsel. It may be that there is some good reason, not apparent from the record before us, why the disclosure of the six potential exhibits at issue here would create problems in the criminal case, and it can do no harm for the Department of Justice to have an opportunity to point out such a good reason to Supreme Court. If such a submission is made, Supreme Court should decide, in light of the additional information submitted and following an in camera inspection if necessary, whether the potential exhibits are subject to the law enforcement exception to FOIL.

Conclusion

Accordingly, the order of the Appellate Division should, be modified to the extent described in this opinion, and, as modified, affirmed, without costs.

Rosenblatt, J. (dissenting in part).

I disagree with the majority only with respect to the 911 calls. The Freedom of Information Law (FOIL) requires more disclosure. The public is well aware of the function of the 911 system and the sort of information it is designed to relay. Ordinarily, there is no reasonable expectation of privacy in a call to 911, and the full contents are generally subject to disclosure under FOIL.

Here, because of the unique nature of the attack, the Court has ordered disclosure of words spoken by the operators, while deleting the words of the callers. There is, of course, a need to balance the competing public and private interests. On the side of full disclosure lies the public’s interest in a complete and coherent account of what happened on September 11, 2001. FOIL’S goal of making information public is inhibited when only half the conversation is divulged. The value of a response is compromised when the words that prompt the response are deleted. In some instances, the thrust of an incomplete communication can be inferred or constructed; in others it will be incoherent or even misleading.

The public interest supports disclosure broader than the Court has allowed. September 11th is a date burned in the minds of Americans, an event in which our security was profoundly violated. Precisely because of the importance of the September 11th attacks, Americans deserve to have as full an account of that event as can be responsibly furnished. Indisputably, the 911 tapes would shed light on the effectiveness of the City’s disaster response. In turn, the City (and other municipalities) may adopt response plans that take into account the lessons of September 11th. This will surely save lives in the event of future disasters or emergencies. Indeed, the public report of the National Commission on Terrorist Attacks Upon the United States found various inadequacies in the City’s 911 system and clearly found value in reviewing the 911 tapes (see 9/11 Commission Report, at 286-296, available on the Internet at chttp:// www.9-llcommission.gov>, cached at chttp://www.courts. state.ny.us/reporter/webdocs/fullreport.pdf>).

Balanced against disclosure is FOIL’S narrow exception for an “unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]; § 89 [2] [b]). I agree with the Court that those who suffered the loss of loved ones could be traumatized by the disclosure of tapes that identify victims and contain dramatic, highly personal utterances different from ordinary 911 calls. Not every call, however, falls into that category. But for their connection with September 11th, many of the calls in question are ordinary 911 calls: people reporting factual information and seeking help. Notably, the City has not provided any affidavits from survivors or victims’ family members suggesting that disclosure of 911 tapes, or any other material sought, would violate their privacy. The record contains only the opposite: affidavits from nine intervenors, family members who want full disclosure. Nevertheless, I do not challenge the majority’s assumption that full disclosure would cause considerable anguish to many victims’ families.

Even so, the goals of privacy and openness can both be met by additional, limited disclosure. I would expand the majority’s ruling and release a written transcript of the callers’ side of the 911 conversations. The City could redact everything that would identify nonofficial callers in calls that have some unusually personal component, such as an expression of dying wishes to be relayed to family members, as opposed to the ordinary reporting of crime scene facts. With such calls, the City should, however, be allowed to withhold any utterance that would by name or other means identify the caller. The public interest would be served by meaningful disclosure, while the grieving families and friends of the callers would be spared the agony of having their personal lives and emotions thrust into the public realm.

My final thought relates to the performance of the firefighters, police officers and others who spearheaded the rescue efforts. It may well be that the 911 transcripts reveal imperfections or mistakes amid the chaos. This, however, is no reason to withhold the transcripts. On the contrary, they will give the public the clearest picture of how the first responders reacted, and that picture should be as comprehensive as possible. The revelation of any deficiencies on the part of the departments or their personnel is essential to improving and enhancing lifesaving procedures. Of course, no one can rightly expect perfection and exquisite orderliness in the face of an attack as horrific as this one. Exposing mistakes may prove discomforting, but this will pale in the face of the unforgettable heroics that we will always associate with September 11th. For every person critical of an error or omission, ten thousand voices will rise up in praise of the firefighters, police officers and others who risked life and limb in the line of duty.

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

Order modified, without costs, by remitting to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Other courts considering the availability of 911 calls under FOIL have uniformly required their disclosure, and the majority appears to be in agreement in the ordinary case (see majority op at 484). In State ex rel. Cincin

        nati Enquirer v Hamilton County (75 Ohio St 3d 374, 377-378, 662 NE2d 334, 337 [1996]), the Ohio Supreme Court held that there was no expectation of privacy in a 911 call and, accordingly, ordered the release of 911 tapes under that state’s version of FOIL. It further held that the tapes became public records at the moment they were made and that their content was irrelevant (see 75 Ohio St 3d at 378, 662 NE2d at 337). In accord are Meredith Corp. v City of Flint (256 Mich App 703, 708-709, 671 NW2d 101, 104-105 [2003]), Asbury Park Press v Lakewood Twp. Police Dept. (354 NJ Super 146, 161, 804 A2d 1178, 1187 [Ocean County 2002]) and Brazas v Ramsey (291 111 App 3d 104, 106-107, 682 NE2d 476, 477-478 [2d Dist 1997], appeal denied 174 Ill 2d 555, 686 NE2d 1158 [1997]).

      . The 9/11 Commission, for instance, cites the testimony of a person who called 911 from the 31st floor of the South Tower and complained that he had been put on hold multiple times before deciding on his own to flee the building (see 9/11 Commission Report, supra, at 295).

      . See generally New York Times Co. v National Aeronautics & Space Admin., 920 F2d 1002 (DC Cir 1990) (where the majority remanded for a balancing test to determine whether a complete transcript or tapes must be disclosed under the federal Freedom of Information Act [5 USC § 552]).


author: Graffeo, J.

text:
    [829 NE2d 295, 796 NYS2d 331]
    The People of the State of New York, Appellant, v Faye Dunn, Respondent.
    Argued March 31, 2005;
    decided April 28, 2005

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Seth M. Lieberman, Leonard Joblove and Ann Bordley of counsel), for appellant.
    The trial court’s order setting aside the verdict was appealable pursuant to CPL 450.20 (3). Consequently, the Appellate Division erred in dismissing the People’s appeal from the trial court’s order. (People v Hernandez, 98 NY2d 8; People v Laing, 79 NY2d 166; People v McDonald, 68 NY2d 1; People v Carthrens, 171 AD2d 387; People v Carter, 63 NY2d 530; People v Fai Cheung, 247 AD2d 405; Matter of Theroux v Reilly, 1 NY3d 232; Matter of Jose R., 83 NY2d 388; People v Sanchez, 276 AD2d 723; People v Rice, 199 AD2d 1054.)

      Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), for respondent.
    This Court should affirm the order of the Appellate Division, which correctly found it lacked jurisdiction to hear the People’s appeal, because section 450.20 of the Criminal Procedure Law does not authorize an appeal from an order setting aside a verdict made on a trial court’s own motion. (People v Linares, 2 NY3d 507; People v Baldi, 54 NY2d 137; People v Harris, 98 NY2d 452; People v Dorta, 56 AD2d 607; Neder v United States, 527 US 1; People v McDonald, 68 NY2d 1; Tippins v Walker, 77 F3d 682; People v Coppa, 45 NY2d 244; People v Edwards, 78 AD2d 582; People v Bussey, 6 AD3d 621.)
   OPINION OF THE COURT

Graffeo, J.

The issue in this case is whether CPL 450.20 allows the People to appeal from a sua sponte order of a trial court setting aside a verdict pursuant to Judiciary Law § 2-b (3). We conclude that such an appeal is not authorized by the Criminal Procedure Law and must instead be challenged in a CPLR article 78 proceeding.

Defendant was charged with murder and related offenses stemming from her alleged participation in a shooting outside a Brooklyn nightclub. She was convicted of murder in the second degree and moved to set aside the verdict under CPL 330.30. Supreme Court denied the motion but nevertheless overturned the verdict sua sponte. Relying on Judiciary Law § 2-b (3) in a procedure that the trial judge recognized to be “highly unusual,” the court vacated defendant’s conviction on the ground that defense counsel had failed to meaningfully represent defendant.

The People’s appeal from the order was dismissed by the Appellate Division. The Court concluded that the Criminal Procedure Law does not authorize an appeal by the People from an order setting aside a verdict made on a trial court’s own motion. The Appellate Division adhered to its determination on reargument. A Judge of this Court granted leave to appeal and we now affirm.

It is well settled that “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v Hernandez, 98 NY2d 8, 10 [2002]). CPL 450.20 delineates the orders that may be appealed by the People to an intermediate appellate court. As relevant to this case, subdivision (3) of the statute authorizes a People’s appeal from “[a]n order setting aside a verdict, entered pursuant to section 330.30 or 370.10” of the Criminal Procedure Law. The trial court’s order in this case, however, was premised on Judiciary Law § 2-b (3), which is not one of the enumerated statutory predicates for an appeal by the People. Consequently, the trial court’s order was facially nonappealable under CPL 450.20 (3).

The People, recognizing that the trial court relied upon Judiciary Law § 2-b (3) to set aside the verdict, contend that the court’s order should be deemed to have been made pursuant to CPL 330.30 because it was based on the ineffective assistance of counsel, a claim that could have been reviewed on direct appeal. In light of the unequivocal declaration by the trial court that it was not relying on CPL 330.30, we will “ ‘not resort to interpretative contrivances to broaden the scope and application’ ” of CPL 450.20 (People v Hernandez, 98 NY2d at 10, quoting People v Laing, 79 NY2d 166, 170-171 [1992]), especially when an adequate legal remedy aside from a direct appeal was available to the People. As we explained in Matter of Pirro v Angiolillo (89 NY2d 351 [1996]), the People may seek a writ of prohibition in a CPLR article 78 proceeding when a trial court clearly acts in excess of its authorized powers and there is “no adequate remedy at law” to address the People’s grievance (id. at 359). Here, as in Pirro, the proper vehicle for the People to challenge Supreme Court’s order was an article 78 proceeding, not a direct appeal.

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

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

Order affirmed.

       Judiciary Law § 2-b (3) provides that a court may “devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.”


author: Rosenblatt, J.

text:
    [829 NE2d 1188, 797 NYS2d 20]
    Lewis Kovit et al., Respondents, v Estate of Katherine Hallums, Deceased, Respondent, and City of New York, Appellant, et al., Defendant. Norman Lazan et al., Respondents, v County of Suffolk, Appellant.
    Argued and submitted March 29, 2005;
    decided May 3, 2005
    Argued March 29, 2005;
    decided May 3, 2005

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Pamela Seider Dolgow and. Stephen J. McGrath of counsel), for appellant in the first above-entitled action.
    I. The City of New York cannot be liable for the discretionary acts of its police officers undertaken at an accident scene, under this Court’s controlling precedents, including Tango v Tulevech (61 NY2d 34 [1983]), Kenavan v City of New York (70 NY2d 558 [1987]), and Lauer v City of New York (95 NY2d 95 [2000]). As a matter of law, the judgment against the City must be reversed and the complaint dismissed. (Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Mon v City of New York, 78 NY2d 309; Pelaez v Seide, 2 NY3d 186; Desmond v City of New York, 88 NY2d 455; Cooper v City of New York, 81 NY2d 584; McCormack v City of New York, 80 NY2d 808; Santana v Seagrave Fire Apparatus Corp., 305 AD2d 395, 1 NY3d 502; Shubert v City of New York, 301 AD2d 365; Smullen v City of New York, 214 AD2d 508, 86 NY2d 705.) II. The police officers were engaged in traffic regulation which is quintessentially a governmental function for which there can be no liability absent a special relationship with plaintiff, which did not exist here. The Appellate Division’s holding to the contrary is in conflict with precedents of this Court, including Balsam v Delma Eng’g Corp. (90 NY2d 966 [1997]). (Miller v State of New York, 62 NY2d 506; Lauer v City of New York, 95 NY2d 95; O’Connor v City of New York, 58 NY2d 184; Pelaez v Seide, 2 NY3d 186; Cuffy v City of New York, 69 NY2d 255; Smullen v City of New York, 28 NY2d 66; Kircher v City of Jamestown, 74 NY2d 251; Gonzalez v County of Suffolk, 228 AD2d 411; Pinkney v City of New York, 50 AD2d 928, 40 NY2d 1004; Respass v City of New York, 288 AD2d 286.) III. The sole proximate cause of plaintiffs injuries was the unforeseeable, intervening action of Mrs. Hallums in putting her car into reverse when she intended to move her car forward, or in her car malfunctioning, not any violation of a duty by the City of New York’s police officers. (Boltax v Joy Day Camp, 67 NY2d 617; Solomon v City of New York, 66 NY2d 1026; Pulka v Edelman, 40 NY2d 781; Sheehan v City of New York, 40 NY2d 496; Dunn v State of New York, 29 NY2d 313; Derdiarian v Felix Contr.

      Corp., 51 NY2d 308; Ely v Pierce, 302 AD2d 489, 100 NY2d 505; Tomassi v Town of Union, 46 NY2d 91; Saviano v City of New York, 5 AD3d 581; Wang v County of Rockland, 179 AD2d 977, 80 NY2d 753.) IV Having arrived only moments earlier at the scene of a fender-bender accident, the police officers, in directing Mrs. Hallums to move her car, which was partially blocking traffic, to a space at the side of the road, were not negligent as a matter of law. The case should have been dismissed for failure to make out a prima facie case. (Cohen v Hallmark Cards, 45 NY2d 493.)

      Sullivan Papain Block McGrath & Cannavo, P.C., New York City (Stephen C. Glosser and Vito Cannavo of counsel), for Lewis Kovit and another, respondents in the first above-entitled action.
    I. In a case largely dependent upon the jury’s assessment of conflicting accounts and now subject to the affirmed finding of fact rule, there was ample evidence to support the jury’s finding that the police officers were negligent in that (i) as a result of her first accident, Mrs. Hallums was “extremely distraught,” “extremely upset”; “stunned, dazed” and “hysterical almost” to the point that she was not in any condition to drive her vehicle; (ii) despite her apparent condition, a police officer ordered her to move her car and, when she did not comply immediately, “insisted” that she do so; (iii) he did so despite the fact that, according to Officer Justiniano, Mr. Kovit was standing only one foot directly behind the Hallums vehicle at the time; and (iv) the unrebutted testimony of plaintiffs police expert established that the police officer’s ordering of Mrs. Hallums to move her car in the physical condition that she was in, coupled with the officer’s failure to warn plaintiff standing directly behind it to get out of the way and to stop traffic, violated police procedure and constituted actionable negligence. (Matter of Donner, 82 NY2d 574; Friedman v State of New York, 67 NY2d 271; Matter of Grinker [Rose], 77 NY2d 703; Birnbaum v Birnbaum, 73 NY2d 461; Alpert v 28 Williams St. Corp., 63 NY2d 557; Adamy v Ziriakus, 92 NY2d 396; Candelier v City of New York, 129 AD2d 145; Ferrer v Harris, 55 NY2d 285; Toure v Avis Rent A Car Sys., 98 NY2d 345; Negri v Stop & Shop, 65 NY2d 625.) II. The City of New York’s special duty and immunity for discretionary judgment defenses are inapplicable where plaintiffs’ claim here is not based upon the police officers’ failure to act, their exercise of acceptable choices or the allocation of resources. Since plaintiffs argued that the officers took “positive direction and control” of the situation and negligently set in motion a force which directly caused harm to plaintiff, liability is based upon affirmative misfeasance rather than nonfeasance. Neither Balsam v Delma Eng’g Corp. (90 NY2d 966 [1997]) nor Lauer v City of New York (95 NY2d 95 [2000]) nor Pelaez v Seide (2 NY3d 186 [2004]) is to the contrary. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; H.R. Moch Co. v Rensselaer Water Co., 247 NY 160; Parvi v City of Kingston, 41 NY2d 553; Ramundo v Town of Guilderland, 108 AD2d 995; Persaud v City of New York, 267 AD2d 220; Persaud v City of New York, 307 AD2d 346, 1 NY3d 502; Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md., 272 AD2d 818; Walsh v Town of Cheektowaga, 237 AD2d 947, 90 NY2d 889; Ferrer v Riverbay Corp., 214 AD2d 312; Rodriguez v City of New York, 189 AD2d 166.) III. As for the City of New York’s brand new argument that the sole proximate cause of the accident was supposedly the intervening act by Mrs. Kaliums, the City has not preserved this argument in this Court. Its proximate cause argument in the Appellate Division was directed only to the jury’s allocation of fault vis-a-vis weight of the evidence and sought a new trial, not dismissal. Should the court entertain it, the jury’s (and Appellate Division’s) finding that the actions of the police officers were, in large part, responsible for this accident is supported by legally sufficient evidence given that Mrs. Kaliums never would have moved the car on her own with Mr. Kovit standing directly behind it but for being forced to comply with the repeated “command” of a police officer to do so. (Cohen v Hallmark Cards, 45 NY2d 493; Matter of Gonzalez v State Liq. Auth., 30 NY2d 108; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Kriz v Schum, 75 NY2d 25; Maheshwari v City of New York, 2 NY3d 288; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Kush v City of Buffalo, 59 NY2d 26; Matter of Ortenberg v Commissioner of Motor Vehs., 191 AD2d 898.)

      Martyn, Toher, Esposito, Martyn & Adler, Mineola (David C. Smith of counsel), for estate of Katherine Kaliums, respondent in the first above-entitled action.
    The jury’s verdict as to defendant-respondent, estate of Katherine Kaliums, was not against the weight of the evidence and should not be set aside. (Cohen v Hallmark Cards, 45 NY2d 493; Matter of Poggemeyer, 87 AD2d 822; 67 Wall St. Co. v Franklin Natl. Bank, 44 AD2d 825, 37 NY2d 245.)

      Christine Malafi, County Attorney, Hauppauge (Christopher A. Jeffreys of counsel), for appellant in the second above-entitled action.
    I. Plaintiffs cannot establish a special duty sufficient to give rise to liability against the County of Suffolk. (Lauer v City

      of New York, 95 NY2d 95; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Cuffy v City of New York, 69 NY2d 255; Kircher v City of Jamestown, 74 NY2d 251; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Napolitano v County of Suffolk, 61 NY2d 863; Shinder v State of New York, 62 NY2d 945; Escribano v Town of Haverstraw, 303 AD2d 621; Pinkney v City of New York, 50 AD2d 928, 40 NY2d 1004; Balsam v Delma Eng’g Corp., 90 NY2d 966.) II. The County of Suffolk did not assume a duty to protect plaintiff. (Parvi v City of Kingston, 41 NY2d 553; Florence v Goldberg, 44 NY2d 189.) III. The County of Suffolk is entitled to immunity for the actions of its police officer. (Tango v Tulevech, 61 NY2d 34; Harland Enters, v Commander Oil Corp., 64 NY2d 708; Haddock v City of New York, 75 NY2d 478; McCormack v City of New York, 80 NY2d 808; Lauer v City of New York, 95 NY2d 95.) IV Plaintiffs fainting spell was the sole proximate cause of plaintiffs accident. (Derdiarian v Felix Contr. Corp., 51 NY2d 308; Blake v Neighborhood Hous. Servs of N.Y. City, 1 NY3d 280; Tishler v Town of Brookhaven, 205 AD2d 611; Gomez v City of New York, 249 AD2d 362; Tigulla v Porzio, 255 AD2d 504; Murray v New York City Hous. Auth., 269 AD2d 288; Green v New York City Hous. Auth., 82 AD2d 780, 55 NY2d 966; Silber v Motorola, Inc., 274 AD2d 511, 96 NY2d 704; Babcock v County of Oswego, 169 Misc 2d 605, 247 AD2d 843, 92 NY2d 802; Prysock v Metropolitan Transp. Auth., 251 AD2d 308, 92 NY2d 817.)

      Gruenberg & Kelly, PC, Ronkonkoma (Peter Lavrenchik of counsel), for respondent in the second above-entitled action.
    I. Appellant’s conduct directing respondent, Norman Lazan, to move his vehicle, was misfeasance. (Balsam v Delma Eng’g Corp., 90 NY2d 966; Johnson v New York City Health & Hosps. Corp., 246 AD2d 88; Persaud v City of New York, 267 AD2d 220.) II. A special relationship existed between Norman Lazan and Officer Robert McNaughton thereby creating a duty towards Norman Lazan. (Mastroianni v County of Suffolk, 91 NY2d 198; Pascucci v Board of Educ. of City of N.Y., 305 AD2d 103; Cuffy v City of New York, 69 NY2d 255; De Long v County of Erie, 60 NY2d 296; Freidfertig Bldrs. v Spano Plumbing & Heating, 173 AD2d 454; Escribano v Town of Haverstraw, 303 AD2d 621.) III. Aside from the special relationship, appellant assumed a duty under the circumstances. (Parvi v City of Kingston, 41 NY2d 553.) IV Appellant’s claim for governmental immunity is misplaced and inapplicable. (Haddock v City of New York, 15 NY2d 478; Galapo v City of New York, 219 AD2d 581.) V Appellant’s argument that plaintiff-respondent’s accident was solely caused by plaintiff has been waived as not previously raised. (Wolkstein v Morgenstern, 275 AD2d 635; Dunlap v United Health Servs., 189 AD2d 1072; Lewis v Metropolitan Transp. Auth., 99 AD2d 246.) VI. Appellant’s argument that there is a legally sufficient intervening or superceding cause is without merit and inapplicable.
   OPINION OF THE COURT

Rosenblatt, J.

As we explained in Pelaez v Seide (2 NY3d 186, 193 [2004]), municipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, except when plaintiffs establish a “special relationship” with the municipality. The two cases before us present questions of municipal liability for the actions of police officers in traffic situations. We conclude that in both instances the plaintiffs have not established a special relationship, and their claims must therefore be dismissed.

I. Kovit v Estate of Hallums

While driving her car, Katherine Hallums collided with a vehicle carrying security officers from the Kings County Hospital. According to witnesses, the accident left her shaken and so “hysterical” that the security officers tried to calm her down. When New York City police arrived on the scene, an officer told her to move her car forward and out of the middle of the intersection where it had stopped. Although plaintiff was standing directly behind Hallums’s car, she moved the vehicle backward instead of forward, crushing plaintiffs legs between her car and the one behind her. In his suit against the City, plaintiff alleged that the police officer acted negligently when he told Hallums to move her car-while she was unfit to drive. A jury found the City 100% responsible for plaintiffs injuries, even though it found that Hallums was also negligent. The Appellate Division reversed, concluding that on the facts, it was impossible for Hallums to have been negligent but not in some degree responsible for plaintiffs injuries (see 261 AD2d 442 [2d Dept 1999]). Upon retrial, another jury found the City 97% at fault. In a second appeal, the Appellate Division upheld the liability determination (see 307 AD2d 336 [2d Dept 2003]). We granted leave and now reverse.

The police officer was exercising his discretion when he told Kaliums to move her car. Even if we were to assume Kaliums was unfit to drive and that the officer knew or should have known it, municipal liability to plaintiff would not follow. To hold the City liable for the negligent performance of a discretionary act, a plaintiff must establish a special relationship with the municipality.

We made this point in Kenavan v City of New York (70 NY2d 558, 569 [1987]). There, the plaintiff was injured because firefighters had parked fire trucks improperly. The Court held that there is municipal immunity from suit when the conduct complained of “involves the exercise of professional judgment,” even if the judgment was poor in retrospect (id.; see also Balsam v Delma Eng’g Corp., 90 NY2d 966, 967 [1997]). We have municipal immunity because of what we demand from public officials in the performance of their duties. If liability flowed from every negligent action, officials would be trained to shrink from their responsibility so as to avoid possible costs to their municipal employers. We expect better of our government, and therefore protect the discretion of its agents so municipalities will encourage them to carry out their duties in the service of the public.

The exception to the rule, as we noted in Pelaez (2 NY3d at 193), is when the plaintiff establishes a special relationship with the municipality. Here, plaintiff fails to do so. Establishing a special relationship based on a municipality’s assumption of a duty requires (1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf, of the injured party; (2) knowledge on the part of a municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking (see Pelaez, 2 NY3d at 202; Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

Plaintiff does not satisfy the third element of this test. The police officer’s contact was with Hallums, not plaintiff. Not only was there a lack of a special relationship between plaintiff and the police officer, there was no material communication or relationship at all. As we held in Lauer v City of New York (95 NY2d 95, 100 [2000]), “[w]ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm.” Factually and legally, plaintiff and the police were strangers. Under those circumstances, the City cannot be held liable.

II. Lazan v County of Suffolk

After plaintiff pulled his car over to the shoulder of the Long Island Expressway, a Suffolk County highway patrol officer came up behind him with flashing lights. Plaintiff left his car and walked back to the police cruiser to speak with the officer. In his complaint, plaintiff alleges that he told the officer he had chest pains and was not feeling well. He did not, however, allege that he told the officer he was too ill or dizzy to drive. After explaining that it was not safe to park on the side of the road, the officer told plaintiff to move his car to the nearest service station. Plaintiff drove off, but soon lost control of his car and suffered serious injuries after driving it into a guardrail and a telephone pole. Plaintiff sued Suffolk County, asserting that the police officer—with whom he alleged a special relationship— was to blame for his injuries. Supreme Court denied the County’s motion for summary judgment and the Appellate Division affirmed, certifying to us the question whether its order was proper. We answer in the negative.

The second prong of the Pelaez/Cuffy test for special relationship liability requires “knowledge on the part of a municipality’s agents that inaction could lead to harm” (Pelaez, 2 NY3d at 202). Here, plaintiff never expressly told the police officer he was too sick to drive, and the record shows it was not manifestly clear to the officer that plaintiff was so disabled that he could not drive a short distance to a safer location. Therefore, as a matter of law, neither plaintiffs explanation to the police officer nor his appearance put the officer on notice that instructing plaintiff to remove his car from the shoulder of the expressway could lead to harm. Under these circumstances, we cannot expect the police to make a refined, expert medical diagnosis of a motorist’s latent condition. Requiring them to do so would improperly burden police in carrying out their duties.

For there to be special relationship-based liability, a municipality’s agent must be clearly on notice of palpable danger, as where it is so obvious that a layman would ascertain it without inquiry, or where a person unambiguously communicated his incapacity to the officer. At that point, the officer would have to weigh the danger of leaving the car in a dangerous situation (at least until help arrived) against the danger posed by having the driver move the car. This calls for discretion and could result in liability only when it is clear that the danger in having the driver move the car outweighs the danger inherent in leaving the car in place for some time. In this case, however, the highway patrol officer was not adequately on notice to satisfy this test.

Accordingly, in Kovit, the order of the Appellate Division should be reversed, with costs, and the complaint against the City dismissed. In Lazan, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the complaint granted and the certified question answered in the negative.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

In Kovit v Estate of Hallums: Order reversed, etc.

In Lazan v County of Suffolk: Order reversed, etc.

      . Plaintiff also sued Hallums and the other driver. Only the issue of the City’s liability is before us.

      . Finding the award excessive, the Appellate Division modified the judgment by ordering a new trial unless plaintiff agreed to a reduction in damages.

      . See also Kircher v City of Jamestown, 74 NY2d 251, 255 (1989) (describing as “legion” the cases of this Court holding municipalities immune from suit for exercising governmental powers including police protection absent a special relationship, and holding there could be no liability when a police officer learned about a possible crime in progress but took no action).

      . Although the parties dispute the application of the other three elements, we need not consider them because plaintiffs failure to satisfy the third is dispositive.

      . At one point in his deposition, plaintiff explained that he told the police officer that he only parked on the shoulder because he did not feel well. He also said that he had felt dizzy and faint and did not feel like driving, but was unclear as to whether he told those things to the officer. Later in the same deposition, plaintiff stated that he could not remember what he told the officer. Moreover, the record includes a transcript of a police department internal investigation hearing where plaintiff testified that he himself did not realize he was not well enough to drive when he pulled off the shoulder.


author: R.S. Smith, J.

text:
    [829 NE2d 661, 796 NYS2d 569]
    In the Matter of Annette B. Orange County Department of Social Services, Respondent; Joseph B., Appellant.
    Argued March 30, 2005;
    decided May 3, 2005

      POINTS OF COUNSEL

      Neal D. Futerfas, White Plains, for appellant.
    The Appellate Division erred and abused its discretion in affirming the decision and order of the Family Court which (1) determined that respondent had proved by the requisite burden of proof that appellant had abandoned the subject child, (2) terminated appellant’s parental rights to that child and (3) freed that child for adoption, where respondent failed to prove abandonment—and lack of interference on the part of the Orange County Department of Social Services—by clear and convincing evidence. (Halloran v Virginia Chems., 41 NY2d 386; Telaro v Telaro, 25 NY2d 433; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; Massachusetts Natl. Bank v Shinn, 163 NY 360; Santosky v Kramer, 455 US 745; Matter of Michael B., 58 NY2d 71; Matter of I.R., 153 AD2d 559; Matter of Jasmine T, 162 AD2d 756; Matter of Anthony M., 195 AD2d 315; Matter of Christina W., 162 AD2d 997.)

      Susan M. Damplo, Ardsley, for Annette B., respondent.
    I. The Second Department erred in affirming the abandonment disposition where the Family Court lacked jurisdiction in those proceedings since the Orange County Department of Social Services (DSS) had never notified the father of the original proceedings in which DSS took custody of his daughter. (Matter of Julius P., 63 NY2d 477; Matter of Raven Carol L., 295 AD2d 610; Matter of Samantha L.J., 155 AD2d 980.) II. The Appellate Division erred in affirming the Family Court’s decision to terminate Joseph B.’s parental rights based on abandonment because appellant’s attempts to contact and communicate with his daughter, Annette, were thwarted by the mother’s move without disclosing the child’s whereabouts and the Orange County Department of Social Service’s failure to notify appellant that Annette was in foster care. (People v Harris, 77 NY2d 434; Matter of Ricky Ralph M., 56 NY2d 77; Matter of Maxwell, 4 NY2d 429; Matter of Anonymous, 40 NY2d 96; Santosky v Kramer, 455 US 745; St. Mary’s Honor Ctr. v Hicks, 509 US 502; Matter of Goldman, 41 NY2d 894; Matter of Shawn P., 187 AD2d 432; Matter of Joseph Michael D., 138 AD2d 974; Matter of Madeline S., 3 AD3d 13.)

      David Darwin, Acting County Attorney, Goshen (Stephen Toole and Peter R. Schwarz of counsel), for Orange County Department of Social Services, respondent.
    The Appellate Division did not abuse its discretion in affirming the decision and order of the Family Court which found by clear and convincing evidence that appellant had abandoned his child based upon an analysis of the credible facts and an application of the relevant statutory and case law. (Matter of Omar RR., 270 AD2d 588; Matter of Andrea A., 12 AD3d 991; Matter of Marie Luz C., 6 AD3d 304; Matter of Matthew YY., 274 AD2d 685; Matter of Charles U., 254 AD2d 588; Matter of Jose Andres M., 8 AD3d 385; Matter of Ronald D., 282 AD2d 533; Matter of Shakim Ravon B., 257 AD2d 547; Matter of Orange County Dept, of Social Servs. [Christine S.], 203 AD2d 367; Matter of Anthony M., 195 AD2d 315.)
   OPINION OF THE COURT

R.S. Smith, J.

The issue is whether there was legally sufficient evidence to support Family Court’s finding, affirmed by the Appellate Division, that Joseph B. abandoned his daughter, Annette B. We hold that there was.

This case is difficult because, although Joseph received proper notice of this proceeding, the Department of Social Services (DSS) failed to give him notice of two previous, related proceedings in which he was entitled to notice by law. These were significant derelictions, and might have warranted Family Court in finding that there was no abandonment because the agency “prevented or discouraged” Joseph from communicating with Annette. But Family Court found, in substance, that Joseph’s failure to communicate resulted from his own choice, not from the agency’s failings, and the Appellate Division agreed. The affirmed finding is supported by the record.

Facts and Procedural History

Annette was born on August 22, 1991. The record does not indicate that Joseph was ever married to Annette’s mother, Marissa R, or that Annette ever lived with him. In the first years of Annette’s life, Joseph lived in Bellport, Long Island, and Annette with Marissa in Central Islip. Joseph testified that in those years he saw Annette every weekend.

At some point, apparently in 1996, Marissa and Annette moved from their home in Central Islip. Also in 1996, Joseph was arrested for an offense involving the sale of drugs. Joseph remained in prison through the time of the trial of this case in 2001, and admittedly had no contact with Annette after she moved away.

Joseph testified that he did not know where Marissa had taken Annette, and that he made three attempts to find out. He testified that he went to the Central Islip house and was told by the occupant that Marissa no longer lived there. He also testified that he spoke to Marissa’s foster mother, Geneva L., who told him she did not know where Marissa had gone. Finally, he testified that, after he was in prison, he asked his mother to contact DSS on Long Island to ask where Annette was, and that she reported she could get no information. Joseph’s testimony about these three inquiries contains little more detail than we have just recited; none of it is corroborated by any document, or by any other witness. There is no evidence that Joseph made any other attempt to contact Annette from 1996 on.

Marissa moved with Annette to Orange County where, in 1998, Annette came into the care of Orange County DSS ás a result of an emergency child neglect removal. Family Court Act § 1035 (d) requires that both parents be notified of such a removal proceeding. The record does not show that any notice was sent to Joseph, or that DSS made any effort to find out Joseph’s address.

Marissa later surrendered her parental rights to Annette. The order approving the surrender is dated June 27, 2001. Joseph was entitled to notice of this second proceeding also (Social Services Law § 384-c), but none was sent to him.

DSS began the present proceeding to terminate Joseph’s parental rights on August 15, 2001. This time, notice was sent to Joseph. A DSS caseworker testified that Joseph’s address was found “[tjhrough Child Support Collection Unit.” Nothing in the record explains why he could not have been located through the same source when the two previous proceedings were brought. Around the time this proceeding was begun, Joseph also received, through his mother, a letter from Geneva saying that Annette was in foster care.

At the hearing in this case, Joseph testified that he did not write to Annette while in prison because he did not know she was in foster care. He admitted, however, that he did know she was in foster care after he received notice of the present proceeding in August 2001, and that he had not written to her as of November 26, 2001, the date he testified.

Family Court found “by clear and convincing evidence” that Joseph had abandoned Annette, and ordered that Joseph’s guardianship and custody rights be committed to DSS. The Appellate Division, with one Justice dissenting, affirmed. We granted leave to appeal, and now affirm.

Discussion

An order “committing the guardianship and custody of a child,” also known as a termination of parental rights, may be granted where the parent whose rights are at issue “abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court” (Social Services Law § 384-b [4] [b]). Abandonment is defined in Social Services Law § 384-b (5), which provides:

“(a) For the purposes of this section, a child is ‘abandoned’ by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.
“(b) The subjective intent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoing parental acts manifesting such intent, shall not preclude a determination that such parent has abandoned his or her child. In making such determination, the court shall not require a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform the acts specified in paragraph (a) of this subdivision.”

“[P]arent” is defined to include an incarcerated parent (Social Services Law § 384-b [2] [b]). While such a parent of course is not able to visit the child, he or she is still presumed able to communicate absent proof to the contrary (see Matter of I.R., 153 AD2d 559 [2d Dept 1989]). Abandonment must be proved by clear and convincing evidence (Santosky v Kramer, 455 US 745 [1982]).

Joseph argues that this record will not support Family Court’s finding of abandonment. While he admits that he did not communicate with Annette during the six months immediately before the filing of the petition, he says that he was not able to do so because, through no fault of his own, he did not know where she was. He also says that he was “prevented or discouraged” from contacting her by DSS’s failure to give him the legally required notice either of the 1998 neglect proceeding or of the 2001 termination of Marissa’s parental rights.

Joseph’s interpretation of the evidence is a possible one, but it is not the only permissible one. Family Court could and did find, by clear and convincing evidence, that Joseph, had he made a reasonable effort, would not have lost touch with Annette so completely, and that DSS’s failure to send him two required notices, while inexcusable, was not in fact the reason he failed to communicate with his daughter.

Joseph testified to three attempts to locate Annette—inquiries of the woman who lived at her former home, of Geneva (Marissa’s foster mother) and (through Joseph’s mother) of DSS. His testimony to these inquiries was brief, vague and uncorroborated, and Family Court was not required to credit it. Even if it accepted his testimony, Family Court was entitled to conclude that a parent in Joseph’s position who was not willing to abandon his child would have done more. The record does not show that all possible means of finding Annette vanished after 1996; on the contrary, the record shows that Geneva and Joseph’s mother were in touch around the time of the filing of the petition in 2001, and that Geneva then knew of Annette’s status. And even if the only open avenues of inquiry were those that Joseph tried, Family Court could find that a truly interested parent would have tried them more persistently.

Family Court found “very telling,” as do we, Joseph’s conduct after he learned, no later than August 2001, that his daughter was in foster care. While he opposed the petition to terminate his parental rights, there is no evidence in the record that he made any effort to get in touch with Annette. While his postpetition conduct is not determinative—the relevant period, for abandonment purposes, is the six months before the filing of the petition—it was permissible for Family Court to infer that Joseph would not have done before the petition what he did not do afterwards. Specifically, Family Court could find that, if Joseph had received the notice he was entitled to of the two previous proceedings, those notices would no more have prompted him to get in touch with Annette than did the August 2001 notice he did receive.

We thus conclude that there was legally sufficient evidence to support Family Court’s affirmed findings, and that its conclusion that Joseph abandoned Annette is supported by the record. We do not reach this conclusion lightly. Joseph had an important, constitutionally-protected right to a parental relationship with his daughter, and DSS gave his rights too little attention. But Annette’s interests are important too. At the time of the hearing below, she was nine years old and living in foster care; her mother had surrendered parental rights to her. DSS was seeking to free Annette for adoption, opposed by a father Annette had never lived with and with whom she had had no contact since she was four or five. Under these sad circumstances, it was Family Court’s duty, giving careful attention both to Joseph’s interests and Annette’s, to evaluate the facts as best it could. It did so, and the Appellate Division found it had done so correctly. Their conclusion is based on record evidence; the result is one that we may not disturb.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

Order affirmed, without costs.