author: Pigott, J.

text:
    [970 NE2d 823, 947 NYS2d 788]
    In the Matter of the Claim of Rocio Zamora, Respondent, v New York Neurologic Associates et al., Appellants. Workers’ Compensation Board, Appellant.
    Argued March 20, 2012;
    decided May 1, 2012

      POINTS OF COUNSEL

      Vecchione, Vecchione & Connors, Garden City Park (Michael F. Vecchione and Sean J. McKinley of counsel), for New York Neurologic Associates and another, appellants.
    I. There is a distinction between those cases where a claimant has involuntarily retired and other cases where a claimant has involuntarily withdrawn from the labor market. (Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033; Matter of Hare v Champion Intl., 50 AD3d 1254; Matter of Leeber v LILCO, 29 AD3d 1198; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200; Matter of Bryant v New York City Tr. Auth., 31 AD3d 936; Matter of Jiminez v Waldbaums, 9 AD3d 99.) II. Public policy considerations must encourage claimants to be productive within their physical limitations. (Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200; Matter of Mazziotto v Brookfield Constr. Co., 40 AD2d 245.) III. Because nonretired claimants must search for work within restrictions, the claimant’s failure to do so warrants that indemnity benefits cease. (Matter of Rothe v United Med. Assoc., 18 AD3d 1093; Matter of Johnson v Onondaga Heating & A.C., 301 AD2d 903.)

      Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen, Barbara D. Underwood and Andrew D. Bing of counsel), for New York State Workers’ Compensation Board, appellant.
    The Workers’ Compensation Board’s determination that claimant failed to show that she had sought employment consistent with her disability was based on substantial evidence and should not have been reversed on the basis of a judicially mandated inference. (Matter of Jordan v Decorative Co., 230 NY 522; Matter of Matise v Munro Waterproofing Co., 293 NY 496; Matter of Croce v Ford Motor Co., 307 NY 125; Matter of Tallini v Martino & Son, 58 NY2d 392; Burns v Varriale, 9 NY3d 207; Matter of Bourne [Corsi], 282 App Div 1; Matter of Nickens v Randstad, 18 AD3d 1008; Matter of Helfrick v Dahlstrom Metallic Door Co., 256 NY 199; Matter of Chetney v Manning Co., 273 NY 82; Matter of Schechter v State Ins. Fund, 6 NY2d 506.)

      Grey & Grey, L.L.P., Farmingdale (Robert E. Grey of counsel), for respondent.
    I. There is no statutory authority for appellants’ contention that a permanently partially disabled worker must prove “attachment to the labor market” as a condition for receipt of benefits. (Matter of Needleman v Queensboro Med. Group, 31 AD2d 383; Matter of Carroll v Knickerbocker Ice Co., 218 NY 435; Matter of Waters v Taylor Co., 218 NY 248; Matter of McCormack v National City Bank of N.Y., 303 NY 5; Crosby v State of N.Y., Workers’ Compensation Bd., 57 NY2d 305; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Lawrence Constr. Corp. v State of New York, 293 NY 634; Matter of Balcerak v County of Nassau, 94 NY2d 253; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662.) II. The decisions of this Court and the Appellate Division, Third Department, establish that where the injured worker’s loss of earnings is caused by the compensable injury, the burden of proof rests with the employer, not the claimant. (Matter of Jordan v Decorative Co., 230 NY 522; Matter of Roberts v General Elec. Co., 6 AD2d 43; Burns v Varriale, 9 NY3d 207; Matter of Phonville v New York & Cuba Mail S.S. Co., 226 NY 622; Dzink v United States R.R. Admin., 204 App Div 164; Bello v General Elec. Co., 204 App Div 613; Becker v General Elec. Co., 210 App Div 495; Matter of Parrilla v Leemar Knitting Mills, 27 AD2d 965; Matter of Doberstein v Marshall, 37 AD2d 1024; Matter of Ginn v Rapid Serv. Press, 222 App Div 406, 248 NY 563.) III. There is no meaningful distinction between “retirement” and “non-retirement” cases on the issue of voluntary withdrawal from the labor market. (Matter of Leeber v LILCO, 29 AD 3d 1198;
      Matter of Jiminez v Waldbaums, 9 AD3d 99; Matter of Roberts v General Elec. Co., 6 AD2d 43; Matter of Topf v American Character Doll & Toy Co., 62 AD2d 1111; Matter of Holman v Hyde Park Nursing Home, 268 AD2d 705; Matter of Kalevas v Williams & Co., 27 AD2d 22, 20 NY2d 812; Matter of Tallini v Martino & Son, 58 NY2d 392; Matter of Papkoff v Feldman, 26 AD2d 140, 19 NY2d 932; Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033.) IV The decision of the Appellate Division, Third Department, was proper as a matter of law and did not invade the Workers’ Compensation Board’s fact-finding authority. (Matter of Axel v Duffy-Mott Co., 47 NY2d 1; Matter of Kaplan v Zodiac Watch Co., 20 NY2d 537; Matter of Konieczny v Butterflake Shop, 71 AD2d 718; Matter of Seymour v Rivera Appliances Corp., 33 AD2d 958; Matter of Krausa v Totales Debevoise Corp., 84 AD3d 1545; Matter of LaCroix v Syracuse Exec. Air Serv., Inc., 8 NY3d 348; Matter of Paduano v New York State Workmen’s Compensation Bd., 30 AD2d 1009.)

      Law Office of Ralph M. Kirk, Kingston (Justin S. Teff of counsel), for Injured Workers’ Bar Association, amicus curiae.
    I. Matter of Zamora v New York Neurologic Assoc. (79 AD3d 1471 [2010]) was correct as a matter of law. (Matter of Lovell v Berman’s Motor Express, 35 AD2d 765; Matter of Nickens v Randstad, 18 AD3d 1008; Matter of Dudlo v Polytherm Plastics, 125 AD2d 792; Matter of Peng Kim v Community Living Corp., 253 AD2d 911; Matter of Jordan v Decorative Co., 230 NY 522; Matter of Coyle v Intermagnetics Corp., 267 AD2d 621; Matter of Roberts v General Elec. Co., 6 AD2d 43; Matter of O’Connell v New York State Workmen’s Compensation Bd., 14 AD2d 945; Matter of Mazziotto v Brookfield Constr. Co., 40 AD2d 245; Matter of Boyle v Gatti, 40 AD2d 1063.) II. Matter of Zamora v New York Neurologic Assoc. (79 AD3d 1471 [2010]) was correct as a matter of public policy. (Jiminez v Waldbaums, 9 AD3d 99; Tallini v Martino & Son, 58 NY2d 392.)
   OPINION OF THE COURT

Pigott, J.

In this appeal we are called upon to decide whether the Workers’ Compensation Board must infer, from the finding that a claimant withdrew from her employment due to an accident at her workplace, that her post-accident loss of wages is attributable to physical limitations caused by the accident. We hold that the Board is not required to draw that inference.

Claimant Rocio Zamora was working as a phlebotomist for New York Neurologic Associates, on January 29, 2003, when a computer monitor fell off a shelf and struck her upper back. She suffered a torn tendon in her left shoulder and two herniated discs in the cervical spine. On April 25, 2003, Zamora told her employer that she would not be returning to work because she did not feel well enough to perform her duties. Thereafter, Zamora was employed on and off, on a part-time basis, receiving workers’ compensation benefits for her loss of wages attributable to the accident. She underwent spinal surgery in December 2005. On January 18, 2007, Zamora returned to full-duty work as a phlebotomist.

On May 29, 2007, following a hearing, the Workers’ Compensation Board classified Zamora with a permanent partial disability. No benefits were ordered because Zamora was engaged in full-duty work at the time. Zamora continued to work until December 21, 2007, when various health issues forced her to quit. As she later explained, she had “migraines, numbness in [her] hand, [and] back pain” and she found it difficult to “use [her] hands to do the blood pressure and draw blood.”

In 2008, Zamora posted her resume on job-search Web sites, seeking both general phlebotomy jobs and customer service positions. She had two extremely brief periods of employment as a phlebotomist at New York hospitals. On May 22, 2008, a Workers’ Compensation Law Judge “continued” Zamora’s case so that a hearing could be held on issues including whether she had voluntarily withdrawn from the labor market.

At the hearing, held on August 5, 2008 before a Workers’ Compensation Law Judge, Zamora testified concerning her health and her attempts to find employment. Asked what injuries contributed to her disability, she mentioned her neck and shoulder, as well as health issues that she said were unrelated to her workplace accident, namely migraines, hernias, and pinched nerves in her lower back. Questioned about her attempts to find work, Zamora explained that she was trying to look for a job that was “lighter,” or less physically taxing, than a phlebotomist position. She had submitted her resume for customer service positions, but those jobs and others she had tried to get required more lifting or standing than she could manage, because of her lower back condition and hernias.

The Workers’ Compensation Law Judge found that Zamora had made a valid effort to find work and “ha[d] not voluntarily removed herself from the labor market.” The insurance carrier of New York Neurologic Associates sought review by the Workers’ Compensation Board.

On March 13, 2009, the Board denied Zamora’s claim for benefits after December 21, 2007. The Board found that Zamora had “failed to conduct a reasonable job search” after December 2007, in that the “jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involve her unrelated low back condition.” The Board therefore ruled that, although Zamora’s original withdrawal from the job market was not voluntary, she had not established attachment to the labor market and continuing entitlement to benefits.

The Appellate Division, in a 3-2 decision, reversed the Board’s determination (79 AD3d 1471 [2010]). The majority inferred, from the fact that Zamora did not voluntarily withdraw from the workforce in 2007, that her “subsequent loss of wages was attributable to her disability,” adding that “it was incumbent upon the employer to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability” {id. at 1472 [internal quotation marks omitted]). We now reverse.

As this Court recently noted, a central question for the Board to resolve, before awarding wage replacement benefits in a non-schedule permanent partial disability case, is “whether a claimant has maintained a sufficient attachment to the labor market” (Burns v Varriale, 9 NY3d 207, 216 [2007]; see Matter of Jordan v Decorative Co., 230 NY 522, 526-527 [1921]). By finding alternative work consistent with his or her physical limitations, or at least showing reasonable efforts at finding such work, the claimant can prove to the Board that the cause of his or her reduced income is a disability, rather than unwillingness to work again. “Claimant must demonstrate that his or her reduced earning capacity is due to the disability, not. . . factors unrelated to the disability” (Burns, 9 NY3d at 216 [internal quotation marks omitted]).

In reaching its decision on this question, the Board will, of course, consider the circumstances under which claimant originally stopped full-duty work. “If the Board determines that a workers’ compensation claimant has a permanent partial disability and that the claimant retired from his or her job due to that disability, an inference that his or her reduced future earnings resulted from the disability may be drawn” {id. [emphasis added]). The same is true regardless of whether claimant has completely retired from the work force or merely withdrawn from the particular employment in which she was engaged at the time of her accident. An inference of causation may be drawn from the disability-related withdrawal, depending on the nature of the disability and the nature of the claimant’s work.

In many of its decisions, the Third Department has noted, correctly, that “a claimant’s work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations” (Matter of Coyle v Intermagnetics Corp., 267 AD2d 621, 622 [3d Dept 1999] [emphasis added]; see also e.g. Matter of Mazziotto v Brookfield Constr. Co., 40 AD2d 245, 247 [3d Dept 1972]; Matter of Miller v Pan Am. World Airways, 46 AD2d 718 [3d Dept 1974]). Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that “once claimant’s work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations” (Matter of Johnson v Onondaga Heating & A.C., 301 AD2d 903, 905 [3d Dept 2003] [internal quotation marks and brackets omitted and emphasis added]; see also e.g. Matter of Pittman v ABM Indus., Inc., 24 AD3d 1056, 1057-1058 [3d Dept 2005]; Matter of Dudlo v Polytherm Plastics, 125 AD2d 792, 793 [3d Dept 1986]).

The correct principle is the former one; the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. If, for example, the Board considers a disability to be one that prevents the claimant from pursuing the trade in which she was engaged at the time of the accident, while allowing her to undertake many other jobs that pay as well, it will likely not make the inference. The Third Department’s recent doctrine that the Board must find causation “effectively created [a] . . . presumption out of an inference” (Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1201 [3d Dept 2006, Carpinello, J., concurring]; see also 79 AD3d at 1473 [Cardona, EJ., and Garry, J., dissenting]). There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer. Consequently, the Appellate Division’s decision below was in error.

Finally, we consider the Board’s finding that, as of August 2008, Zamora had not made a reasonable search for work consistent with her physical restrictions. That determination is a factual one that an appellate court must uphold as long as there is substantial evidence to support it (see generally Matter of Capizzi v Southern Dist. Reporters, 61 NY2d 50, 54 [1984]; Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6 [1979]). We may not weigh the evidence or reject the Board’s choice simply because a contrary determination would have been reasonable. Here, the evidence concerning the types of work that Zamora had attempted to find and her lack of success in those endeavors, together with the absence of evidence of attempts to find less physically taxing work, constitute relevant proof adequately supporting the Board’s conclusion. Therefore, we are satisfied that there was substantial evidence to support the Board’s determination.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.

Chief Judge Lippman (dissenting). Nearly a century ago in Matter of Waters v Taylor Co. (218 NY 248, 251-252 [1916]), we held that what was then known as the Workmen’s Compensation Act

“[wa]s framed on broad principles for the protection of the work[er]. Relief under it . . . rest[ed] on the economic and humanitarian principles that compensation should be given . . . for earning capacity destroyed by an accident in the course of or connected with [one’s] work, and this not only for [the worker’s] own benefit[,] but for the benefit of the state[,] which otherwise might be charged with [the worker’s] support.”

Because the majority’s holding lacks statutory support and runs counter to the remedial purpose of the Workers’ Compensation Law, I respectfully dissent.

“Attachment to the labor market” is a concept that is conspicuously absent from the Workers’ Compensation Law. The majority’s formulation of the issue in this case distracts from the proper identification of the question before the Court, which is whether a worker who has involuntarily withdrawn from his or her employment due to a compensable disability must demonstrate “attachment to the labor market” in order to be eligible to receive benefits. Nothing in the statute suggests that this is a prerequisite to entitlement to workers’ compensation benefits.

An inference that the loss in wage earning capacity is due to the permanent partial disability (PPD) arises where the claimant left his or her job because of that disability (see Matter ofLeeber v LILCO, 29 AD3d 1198, 1199 [3d Dept 2006] [holding that “if claimant’s permanent partial disability caused or contributed to his decision to retire, an inference arises that his earning capacity is reduced by the disability and claimant is entitled to compensation until the inference is removed from the case”]; Matter of Tipping v National Surface Cleaning Mgt., Inc., 29 AD3d 1200, 1201 [3d Dept 2006] [holding that “the (Workers’ Compensation) Board’s initial determination that claimant’s retirement was involuntary gave rise to an inference that his reduced earning capacity continued after retirement”]). The claimant’s employer or the insurance carrier can rebut the inference by presenting “direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement” (Matter of Pittman v ABM Indus., Inc., 24 AD3d 1056, 1058 [3d Dept 2005]). I see no logical reason to treat the involuntary withdrawal that occurred in this case any differently from the Third Department’s treatment of involuntary retirement, which is consistent with the Workers’ Compensation Law’s plain language and core objectives.

Whether a claimant suffering from a PPD has maintained an “attachment to the labor market” should only be considered where the claimant seeks total disability compensation (see e.g. Matter of Parrilla v Leemar Knitting Mills, 27 AD2d 965 [3d Dept 1967]), or where the claimant has voluntarily withdrawn from the labor market (see e.g. Matter of Peck v James Sq. Nursing Home, 34 AD3d 1033, 1034 [3d Dept 2006] [holding that the “claimant (suffering from a PPD) ha(d) an obligation to demonstrate attachment to the labor market with evidence of a search of employment within medical restrictions,” where there was “no finding of involuntary retirement”]). This is consistent with the purpose of the Workers’ Compensation Law, which is to compensate for the claimant’s loss in wage earning capacity. It is reasonable that a claimant suffering from a PPD who has left his or her job voluntarily—that is to say, for reasons unrelated to the disability—should not benefit from the inference that the loss in wage earning capacity is due to the disability, precisely because the claimant chose to leave his or her employment and was not forced to do so by reason of the compensable disability Indeed, Matter of Jordan v Decorative Co. (230 NY 522 [1921]), relied upon by the majority, was a case in which, unlike here, the claimant obtained a new job after leaving the job where he sustained his disability, and refused a position offered by his new employer even though he was physically able to do the work. The claimant in Jordan affirmatively refused work and voluntarily left his new position even though there was no shortage of work there that he was physically capable of doing. Nothing of the sort occurred in this case. There is no evidence tending to suggest that claimant, who suffered permanent injuries requiring spinal fusion surgery when a computer monitor fell and struck her, either affirmatively refused work that she could do or voluntarily left any job. Indeed, quite the opposite is true. Below, the Workers’ Compensation Board concluded that claimant involuntarily left her job at New York Neurologic Associates (meaning that her decision to withdraw from that position was related to her PPD), and attempted to find work elsewhere but found that she suffered from certain physical limitations that prevented her from performing tasks essential to those forms of employment, such as heavy lifting.

The majority extends the rule regarding “attachment to the labor market” beyond the limits that can reasonably be imposed on the application of such a rule when considering the remedial and humanitarian roots of the critically important statute that we address today. Workers’ compensation benefits are intended to do what the name implies: compensate workers for losses in wage earning capacity incurred due to work-related injuries. To impose barriers to access to those benefits, where there is no basis for such prerequisites, contravenes the law and violates basic principles of fairness for debilitated workers injured in the course of their employment. For these reasons, I respectfully dissent and would affirm the order of the Appellate Division.

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

Order reversed, etc.

       In Burns v Varriale (9 NY3d 207 [2007]), cited by the majority (see majority op at 191-192), this Court was called upon to address a question entirely different from the one raised by this case. Burns was a “proceeding to extinguish a lien asserted pursuant to Workers’ Compensation Law § 29” (9 NY3d at 210). Although Burns referred to the inference discussed in Leeber and Tipping, contrary to the majority’s suggestion, Burns did not squarely address the issue before the Court on this appeal.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [969 NE2d 754, 946 NYS2d 536]
    Daniel Marks Cohen et al., Appellants, v Andrew M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued April 26, 2012;
    decided May 3, 2012

      POINTS OF COUNSEL

      Cuti Hecker Wang LLP, New York City (Eric J. Hecker, John R. Cuti, Alexander Goldenberg and Julie B. Ehrlich of counsel), for appellants.
    The New York State Senate majority’s 63-seat Senate plan violates article III, § 4 of the New York Constitution. (Settle v Van Evrea, 4 Sickels 280; District of Columbia v Heller, 554 US 570; Adarand Constructors, Inc. v Pena, 515 US 200; Good Samaritan Hospital v Shalala, 508 US 402; Matter of Schneider v Rockefeller, 31 NY2d 420; Burns v Richardson, 384 US 73; Matter of O’Shea v Board of Assessors of Nassau County, 8 NY3d 249; Metropolitan Taxicab Bd. of Trade v New York City Taxi & Limousine Commn., 18 NY3d 329; Matter of Orans, 15 NY2d 339; Matter of Fay, 291 NY 198.)

      Jones Day, Washington, D.C. (Michael A. Carvin and John M. Gore of counsel), Jones Day, New York City (Todd R. Geremia of counsel), and Lewis & Fiore (David Lewis of counsel) for Dean G. Skelos, respondent.
    I. The 63-seat New York State Senate plan is a reasonable exercise of the Legislature’s discretion. (Matter of Schneider v Rockefeller, 31 NY2d 420; Matter of Wolpoff v Cuomo, 80 NY2d 70; Matter of Fay, 291 NY 198; Matter of Orans, 15 NY2d 339; Reynolds v Sims, 377 US 533; Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475; Matter of Walsh v Katz, 17 NY3d 336; Affronti v Crosson, 95 NY2d 713; Dalton v Pataki, 5 NY3d 243; Port Jefferson Health Care Facility v Wing, 94 NY2d 284.) II. Petitioners’ ad hominem and irrelevant allegations are unavailing. (Matter of Wolpoff v Cuomo, 80 NY2d 70; Matter of Sherrill v O’Brien, 188 NY 185; Gaffney v Cummings, 412 US 735; Rodriguez v Pataki,
      308 F Supp 2d 346; Matter of Fay, 291 NY 198; Affronti v Crosson, 95 NY2d 713; Dalton v Pataki, 5 NY3d 243; Brown v Thomson, 462 US 835; Voinovich v Quilter, 507 US 146; Matter of Schneider v Rockefeller, 31 NY2d 420.)

      Graubard Miller, New York City (Elaine Reich and C. Daniel Chill of counsel), for Sheldon Silver, respondent.
    Inasmuch as chapter 16 of the Laws of 2012 contains a severability clause, if the Court invalidates the 63-seat New York State Senate plan, relief should be tailored in a manner that will not affect the New York State Assembly districts enacted as part of the same legislation. (Matter of Hynes v Tomei, 92 NY2d 613; People v Tremaine, 252 NY 27; Matter of Town of Middletown, 82 NY 196; Matter of Henry v Noto, 74 AD2d 604, 50 NY2d 816; People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48.)

      Emery Celli Brinckerhoff & Abady LLP, New York City (Richard D. Emery and Adam R. Pulver of counsel), for New Roosevelt Foundation, Inc., amicus curiae.
    I. The combination of methods to determine the size of the New York State Senate served one purpose: to add an upstate district that would not be presumptively unconstitutional. (Brown v Thomson, 462 US 835.) II. The combination of methods to determine the size of the New York State Senate was part of a broader bad faith scheme to infringe on the voting rights of downstate New Yorkers. (Matter of Schneider v Rockefeller, 31 NY2d 420; Reynolds v Sims, 377 US 533; Abate v Mundt, 25 NY2d 309, 403 US 182; Davis v Mann, 377 US 678; Larios v Cox, 300 F Supp 2d 1320, 542 US 947; Hadley v Junior College Dist. of Metropolitan Kansas City, 397 US 50; Hulme v Madison County, 188 F Supp 2d 1041; Moore v Itawamba County, Miss., 431 F3d 257; Rodriguez v Pataki, 308 F Supp 2d 346, 543 US 997; Davis v Bandemer, 478 US 109.) III. There are stark consequences for the voting rights of racial and ethnic minorities. (Allen v State Bd. of Elections, 393 US 544.)

      Gibson, Dunn & Crutcher LLP, New York City (Jim Walden and Anne Champion of counsel), for Common Cause New York, amicus curiae.
    I. Redistricting processes are uniquely subject to political manipulation in New York. II. This Court should not turn a blind eye to the “process” that resulted in Laws of 2012, chapter 16 when evaluating the Supreme Court’s decision. (Larios v Cox, 300 F Supp 2d 1320, 542 US 947; Hulme v Madison County, 188 F Supp 2d 1041.) III. Laws of 2012, chapter 16 is unconstitutional and the Supreme Court should be reversed.
      (Matter of Schneider v Rockefeller, 31 NY2d 420; Larios v Cox, 300 F Supp 2d 1320; Corbett v Sullivan, 202 F Supp 2d 972; Vieth v Pennsylvania, 195 F Supp 2d 672; WMCA, Inc. v Lomenzo, 377 US 633; Matter of Fay, 291 NY 198; Karcher v Daggett, 462 US 725; Reynolds v Sims, 377 US 533; Board of Estimate of City of New York v Morris, 489 US 688; Roman v Sincock, 377 US 695.)
   OPINION OF THE COURT

Per Curiam.

Petitioners commenced this special proceeding seeking a declaration that chapter 16 of the Laws of 2012, insofar as it expands the size of the New York State Senate from 62 to 63 districts, is unconstitutional. Specifically, they argue that the Legislature’s failure to apply a consistent method of calculating the number of Senate seats due to population growth throughout the state is arbitrary and violates article III, § 4 of the New York State Constitution. We find that petitioners have failed to satisfy their heavy burden of establishing the unconstitutionality of this legislation and we therefore affirm.

This dispute arises out of the process of adjusting representation in the State Senate whereby the Legislature uses the historical, constitutionally prescribed “ratio” process to determine the required number of Senate seats. The New York Constitution of 1894 established a minimum of 50 State Senate districts and set forth a method of determining whether the number of seats is to be increased based on population shifts or increases as indicated by the census (see NY Const, art III, § 4). The initial step in this process is to divide the population of the State’s citizens by 50, resulting in the applicable “ratio” figure (see NY Const, art III, § 4). Any county that has at least three “full ratio[s],” or six percent of the state’s population, is then allocated a Senate seat for each full ratio (see NY Const, art III, §4). If the number of seats so assigned is greater than the number of seats assigned to that county in the Constitution of 1894, the increase is added to the original 50 Senate seats so that the “whole number of senators” is increased accordingly (see Matter of Schneider v Rockefeller, 31 NY2d 420, 431-432 [1972] [internal quotation marks omitted]).

Difficulties are presented in determining the proper ratio for counties that were divided after 1894 (resulting in the creation of counties that did not then exist) and for counties that were combined in 1894 within a single Senate district. Article III, § 4 does not provide any specific guidance on how to address these situations. The Legislature has, in the past, employed two different methods. The populations of the counties at issue can be combined and then divided by the ratio figure to get a number that is then rounded down to the nearest full ratio (“combining before rounding down”). That figure is then compared to the number of Senate seats that were allotted to that district in 1894 for purposes of determining any increase. Another way is to divide the population of each county by the ratio figure, round the resulting number for each county down to the nearest full ratio and then combine the full ratios to get the number of Senate seats (“rounding down before combining”) for purposes of comparison to the number of seats allocated in 1894.

Here, we are concerned with the Legislature’s treatment of Queens and Nassau Counties on the one hand, and Richmond and Suffolk Counties on the other. In 1894, the territory that is currently Queens and Nassau was one county—Queens. Richmond and Suffolk were each counties at that time, but were organized into a single Senate district. For purposes of the current redistricting process, the Legislature chose to use one method—rounding down before combining—to determine the full ratio for Queens and Nassau Counties. It chose to use the other method—combining before rounding down—to determine the full ratio for Richmond and Suffolk Counties. Based on 2010 census population statistics, consistent application of the rounding down before combining method would have resulted in 62 Senate districts, while consistent use of the combining before rounding down method would have resulted in 64 Senate districts. Petitioners argue that respondents manipulated the process for political purposes in order to reach a 63-seat Senate.

Supreme Court found that petitioners failed to meet their burden of establishing the unconstitutionality of the redistricting plan (35 Misc 3d 478 [2012]). Petitioners appealed directly to this Court as of right pursuant to CPLR 5601 (b) (2), and we now affirm.

Petitioners acknowledge that we have, in the past, recognized each of the methods of calculation at issue. They maintain, however, that it violates article III, § 4 of the New York State Constitution to use different methods for different parts of the state in the same adjustment process.

In Schneider, we addressed the constitutionality of the procedure used by the Legislature to determine the number of senators that should be allotted. In that case, following the 1970 census, the Legislature combined the populations of Queens and Nassau Counties, divided by the ratio figure and then rounded down, resulting in an increase of eight senators (see 31 NY2d at 432). The petitioners had advocated for the rounding down before combining system, which would have resulted in only seven additional senators.

We found that the combining before rounding down “procedure followed by the Legislature [was] valid and [did] not transgress any constitutional provision” (Schneider, 31 NY2d at 432). We also observed that the other procedure—rounding down before combining—had been used in prior redistricting (see id.). Instead of deciding between these procedures, we held that “the Legislature must be accorded some flexibility in working out the opaque intricacies of the constitutional formula for readjusting the size of the Senate” (id.). We went on to say that, where a county had been divided subsequent to 1894, the process of combining before rounding down “more accurately reflects increases in the population of the territory of the original county—the very basis from which adjustments to the whole number of senators is made. This system is, therefore, consonant with the broad historical objectives underlying the provision for increasing the size of the Senate” (id. at 432-433).

It is well settled that acts of the Legislature are entitled to a strong presumption of constitutionality

“and we will upset the balance struck by the Legislature and declare the [redistricting] plan unconstitutional ‘ “only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible,” ’ ” the statute will be upheld (Matter of Wolpoff v Cuomo, 80 NY2d 70, 78 [1992], quoting Matter of Fay, 291 NY 198, 207 [1943]).

The rationale proffered by respondents for their choice of methods is that they opted to treat Nassau County—which did not exist in 1894 and which now has the population to warrant three full ratios—as if it had been a county in existence in 1894. Therefore, the method of rounding down before combining was used for Nassau and Queens to determine the Senate seats attributable to each county. For Richmond and Suffolk Counties, which both existed in 1894 and were combined into a single district at that time, the Legislature continued its practice of using the method of combining before rounding down.

It is not our task to address the wisdom of the methods employed by the Legislature in accomplishing its constitutional mandate. Rather, here, we consider only whether the methods chosen amount to “a gross and deliberate violation of the plain intent of the Constitution and a disregard of its spirit and the purpose for which express limitations are included therein” (Matter of Sherrill v O’Brien, 188 NY 185, 198 [1907]). Despite petitioners’ assertions, we cannot say that consistent application of one method of calculation is required, given the Constitution’s silence on this issue and our recognition that the Legislature must be accorded a measure of discretion in these matters. Under these circumstances, petitioners have not met their burden of demonstrating that the use of two constitutionally adequate means of determining the number of Senate seats, in the course of addressing two discrete historical contexts, is unconstitutional.

Accordingly, the judgment of the Supreme Court should be affirmed, without costs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in per curiam opinion.

Judgment affirmed, without costs.

      - “The ratio for apportioning senators shall always be obtained by dividing the number of inhabitants ... by fifty, and the senate shall always be composed of fifty members, except that if any county having three or more senators at the time of any apportionment shall be entitled on such ratio to an additional senator or senators, such additional senator or senators shall be given to such county in addition to the fifty senators, and the whole number of senators shall be increased to that extent” (NY Const, art III, § 4).

      . As we have previously observed, this method is solely for the purpose of determining the size of the State Senate (see Schneider, 31 NY2d at 431 n 5). When the constitutional provision was enacted in 1894, it was also used to allocate Senate seats to counties, but since the advent of the “one person, one vote” rule (Reynolds v Sims, 377 US 533 [1964]), seats cannot be allocated on a county-by-county basis. Thus, the drawing of districts and apportioning of Senate seats is a process completely separate from determining the number of seats (see e.g. WMCA, Inc. v Lomenzo, 377 US 633 [1964]).


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

text:
    [970 NE2d 409, 947 NYS2d 386]
    The People of the State of New York, Respondent, v Hans Alexander, Appellant.
    Argued March 22, 2012;
    decided May 3, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jonathan M. Kirshbaum and Robert S. Dean of counsel), for appellant.
    Appellant’s guilty plea was unlawful and involuntary because his reduced plea was conditioned upon the withdrawal of his constitutional speedy trial claim in direct violation of the rule set forth in People v Blakley (34 NY2d 311 [1974]), that a plea offer cannot contain such a condition. (Barker v Wingo, 407 US 514; People v Muniz, 91 NY2d 570; People v Allen, 86 NY2d 599; People v Callahan, 80 NY2d 273; People v Seaberg, 74 NY2d 1; People v Parilla, 8 NY3d 654; People v Hansen, 95 NY2d 227; People v Friscia, 51 NY2d 845; People v White, 32 NY2d 393; People v Rodriguez, 50 NY2d 553.)

      Robert T. Johnson, District Attorney, Bronx (Megan R. Roberts, Thomas R. Villecco, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
    Defendant voluntarily abandoned his constitutional speedy trial claim; therefore, defendant’s plea should not be vacated. (People v Blakley, 34 NY2d 311; People v White, 32 NY2d 393; People v Rodriguez, 50 NY2d 553; People v Mower, 97 NY2d 239; People v Callahan, 80 NY2d 273; People v Taranovich, 37 NY2d 442; People v Rodriguez, 95 NY2d 497; People v Savage, 54 NY2d 697; People v Lomax, 50 NY2d 351; People v Wallace, 26 NY2d 371.)
   OPINION OF THE COURT

Read, J.

Before defendant Hans Alexander pleaded guilty, the trial judge observed to defense counsel that she would accept the plea “on the condition” that defendant withdraw any and all outstanding motions, which included a recently filed pro se constitutional speedy trial motion, and waive the right to appeal. During allocution, the judge twice asked defendant if he “under[stood]” that by entering into the guilty plea, all his “outstanding writs and motions” were “being withdrawn,” and he responded that he did. We conclude that the judge’s statements, considered in context, do not go against our decisions in People v White (32 NY2d 393 [1973]), People v Blakley (34 NY2d 311 [1974]) and People v Sutton (decided with People v Callahan, 80 NY2d 273 [1992]). Accordingly, we affirm the judgment of conviction and sentence in this case.

L

By indictment filed on December 8, 2006, the grand jury charged defendant and a codefendant, acting in concert, with third-degree criminal sale of a controlled substance (Penal Law § 220.39 [1]) and criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44 [2]); while in jail awaiting trial, defendant filed numerous pro se motions and habeas corpus petitions. When defendant, his codefendant and the People appeared before Supreme Court on January 11, 2008, the judge informed them that although they were all “ready for trial” that day, she had “got[ten] word . . . literally just about two hours ago, that [defendant had] filed another writ with the [Appellate Division], which [had] been granted.” Defendant claimed in this particular petition that his indictment was defective because the People neglected to instruct the grand jury on the agency defense (see People v Lam Lek Chong, 45 NY2d 64, 73 [1978] [“In this State it has long been held that one who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics” (internal quotation marks and brackets omitted)]; People v Valles, 62 NY2d 36 [1984] [requiring prosecutor to charge exculpatory defenses to the grand jury]).

The trial judge explained that because “that writ now [was] back before [her] and . . . [would] have to be decided[,] the People [would] have to be given a reasonable opportunity to respond,” which meant that the trial had to be “put off.” In light of her trial schedule and a pending move of the court’s operations to a new building, she suggested an adjourned date of March 4, 2008, a seven-week delay. Defendant’s attorney then informed the judge that his client had asked him “to make further inquiry” regarding a new offer conveyed by the prosecutor that day for a determinate sentence of IV2 years in prison, followed by one year of postrelease supervision, in exchange for a plea to a felony. He remarked that “[m]y client at first indicated that he wanted to think about it. And shortly after the Court . . . indicated what the adjourned date was going to be, he . . . asked me to make further inquiries with respect to whether or not—may I have a moment?” The judge answered “Yes,” and a brief off-the-record discussion ensued at the bench.

The trial judge, addressing defendant’s attorney directly, then stated as follows: “I just want you to know that I will accept the plea, obviously, on the condition that [defendant] is withdrawing any and all motions that are outstanding before the Court and he’s waiving his right to appeal.” The outstanding motions included a pro se speedy trial motion filed by defendant on December 29, 2007, and marked received in the judge’s trial part on January 10, 2008, the day before the scheduled trial. In this motion, defendant alleged a violation of his speedy trial rights under the federal and state constitutions, CPL 30.20 (1) (specifying that “[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial”) and CPL 30.30 (1) (a) (with exceptions, mandating dismissal where the People are not ready for trial within six months after commencement of a criminal action wherein the defendant is accused of at least one felony).

Defendant’s attorney next informed the judge that his client was “under the impression that he [could] be released from this courtroom,” rather than “go Upstate.” After some discussion, the judge clarified that defendant, in fact, would have to “go Upstate”—i.e., enter the state penal system to have the Department of Correctional Services (now the Department of Corrections and Community Supervision) calculate his jail time credit before his release. Upon hearing that apparently unwelcome news, defendant instructed his counsel to let the judge know he was “not interested” in entering a guilty plea.

After a pause in the proceedings, the trial judge and codefendant’s counsel had some discussion. A further pause ensued, and then defendant’s attorney told the judge that

“after having a number of conversations with [defendant] and also after having had an opportunity to review the writs that have been filed with the Court as well as the motions filed with the Court and the hearing minutes and so on, at this time [defendant] authorizes me to enter a plea of guilty on his behalf in full satisfaction of the indictment that is currently before the Court, to Penal Law Section 220.31, which is criminal sale of a controlled substance in the fifth degree, with the understanding that [he] will be receiving credit for all the time that he has currently served while in jail; with the further understanding that he will also be required to waive his right to appeal.
“And in addition to waiving his right to appeal, it is also with the understanding that he will move to withdraw any outstanding writs or any outstanding motions that he has filed, that I have adopted in the past.”

The trial judge pointed out to defendant that he was being offered “the very minimum” sentence possible in light of his predicate felony status, and he acknowledged that he understood this. The judge added, “And you understand by taking this plea, all of your outstanding writs and motions that you have are being withdrawn; do you understand that?” to which defendant replied, “Withdrawn.”

Defendant then acknowledged that he had been allowed enough time to discuss the plea offer with his attorney, with whose representation he was satisfied; that he understood he would be pleading to a D felony, fifth-degree criminal sale of a controlled substance, for the promised sentence of D/2 years in prison plus one year of postrelease supervision; and that “by entering into this plea, all prior writs and motions that [were] outstanding [were] being withdrawn.” He further confirmed that he understood that he was giving up his rights to a jury trial, to have the People prove his guilt beyond a reasonable doubt, to confront witnesses and to remain silent.

Defendant next admitted that, on November 18, 2006, acting with another, he sold cocaine to an undercover police officer. He averred that no one had forced him to plead guilty; that he was, in fact, guilty; and that the only promise made to him was as to his sentence. Defendant then signed a written waiver of his right to appeal and assured the court that he understood that by signing the waiver, he was giving up “certain legal rights . . . spelled out” in that document. The judge adjudicated defendant a predicate felony offender and adjourned the case until January 30, 2008 for sentencing.

On January 17, 2008, defendant filed a pro se motion pursuant to CPL 220.60 (3), seeking an order permitting him to withdraw his guilty plea and reinstating the indictment. He asserted numerous reasons to support a claim that his plea was not knowing and voluntary, including ineffective assistance of counsel and that, under Blakley, “the nature of the speedy trial guarantee renderfs] a waiver of such a claim or the withdrawal inherently coercive in a plea bargaining situation, so that a plea conditioned on a waiver or withdrawal must be vacated.” In an affirmation in opposition served on February 28, 2008, the People, quoting extensively from the plea hearing’s minutes, argued generally that the record contravened defendant’s claims. In a decision and order filed on April 15, 2008, the new judge assigned to the matter ordered a hearing in light of the “[f]actual issues . . . raised by the opposing affirmations.”

The hearing was held over four days, July 16, September 12, October 8 and October 24, 2008. Defendant called as a witness his attorney at the time he pleaded guilty, a 49-year-old criminal defense lawyer who had been practicing since 1986. The attorney, who began representing defendant in September 2007, testified that he had a “number of conversations” with defendant regarding his pro se motions; and that he had warned him about the risks associated with presenting the “very dangerous” agency defense at trial; namely, as a consequence, defendant’s numerous prior convictions for drug offenses would become relevant and hence admissible. They also discussed the People’s original plea recommendation of 372 years in prison in exchange for pleading guilty to third-degree criminal sale of a controlled substance, which defendant rejected out of hand. The attorney’s description of what happened during the court appearance on the afternoon of January 11, 2008 was consistent with the plea hearing’s minutes. He testified that although he advised defendant that, in his opinion, the People had made a “good offer” because defendant “wouldn’t have to spend much more time in jail,” he emphasized that “the decision would have to be” defendant’s, and he “was ready to go forward to trial.”

The attorney also related what happened in court on January 30, 2008 as defendant was about to be sentenced:

“[W]hen we appeared in court, . . . [defendant] then indicated to the judge, after [she] . . . asked him a question concerning what he had told the Department of Probation as to his guilty plea, . . . something to the effect that he wanted to take his plea back.
“At that point, the judge . . . indicated to [defendant] since he had also made a statement . . . that she was not—she did not advise him . . . that his writ had been granted and that since I was going to become a potential witness in connection with the case, since I was present when the judge . . . advised him . . . that his writ had been granted, she felt that it was best that I be removed from the case.”

The attorney added that he turned over his case file to defendant’s new assigned counsel (his third in this matter) on February 7, 2008.

Defendant testified that when he pleaded guilty his “number one point about this whole proceeding [was] that the indictment [was] defective” because the prosecutor did not inform the grand jury about the agency or other exculpatory defenses. Additionally, he was then unaware that it was “illegal ... or unlawful for” a plea to be conditioned on withdrawal of an “otherwise valid . . . constitutional right to a speedy trial claim.” He further protested that he felt pressured to plead guilty because the case was being adjourned.

Defendant insisted that no one ever told him that his habeas corpus petition relating to the agency defense had been granted. When the hearing judge commented that the plea minutes reflected otherwise, defendant claimed that he did not at the time understand this to be the case or that he was agreeing to give up his agency defense, and that if he had appreciated either state of affairs, he never would have pleaded guilty. Excerpts from the prosecutor’s charge, which were introduced into evidence, established that she did, in fact, instruct the grand jury on the agency defense, contrary to defendant’s apparent belief and the allegations in his petition.

The hearing judge denied defendant’s motion to withdraw his guilty plea. He concluded that defendant “knowingly, voluntarily and intelligently agreed to the plea,” citing his apparent understanding of the proceedings, experience with the criminal justice system and ability to litigate pro se motions. Additionally, the judge was troubled by the “serious inconsistencies between the defendant’s testimony and the record”; he noted that “[t]he delay in this case which would have occur [red as a result of the] writ proceeding was not intended as a threat, but was quite frankly reality.” He further opined that “it’s perfectly proper for a Court before [it] takes a plea [to] require that those applications and those motions be withdrawn.” Thereafter, the judge imposed the agreed-upon sentence on defendant.

Defendant appealed and sought vacatur of his guilty plea on the ground it was unlawfully conditioned upon the withdrawal of his constitutional speedy trial claim. Concluding that defendant’s “case [did] not fall within the ambit” of Blakley and Callahan (Sutton), the Appellate Division applied the fact-specific analysis in White to determine whether defendant’s guilty plea was coerced (82 AD3d 619, 621 [1st Dept 2011]). Under this approach, the court emphasized that the parties were ready for trial on the date of the plea; that after the trial judge brought up the necessity for an adjournment, “it was defense counsel who advised the [judge] that defendant had asked him ‘to make further inquiry’ regarding the People’s offer,” and “[i]n response, it was the [judge], not the prosecutor, that informed defendant that it would accept the plea only on the condition that [he withdrew] ‘all motions that [were] outstanding’ ”; that “when defense counsel first advised the [judge] that defendant was not interested in the plea offer because he would not be immediately released, the [judge] set an adjourned date and neither [she] nor the prosecutor said anything designed to persuade defendant to change his mind and accept the plea offer”; and that “during the plea proceedings the [judge] twice asked defendant if he understood that by taking the plea all of his outstanding writs and motions were being withdrawn” (id. at 621-622).

The court added that at the plea withdrawal hearing, “defendant explained that he inquired into the plea offer because he felt pressure as a result of the delay . . . from allowing the People to respond to his writ,” and “[a]t no time . . . testified] that he was concerned about the withdrawal of his speedy trial motion” (id. at 622). In sum, the Appellate Division concluded that “[g]iven these circumstances, [Supreme Court] properly exercised its discretion in denying defendant’s motion to vacate the plea on the ground that it was knowingly, intelligently and voluntarily entered” (id.).

The court distinguished Blakley and Callahan (Sutton) principally on the ground that, in those cases “the right to appeal the constitutional speedy trial claim had matured in that the defendants had pleaded guilty after their speedy trial motions had been denied,” whereas “[hjere, as in White, the appellate claim had not matured in that the speedy trial motion remained pending when the plea was entered” (id. at 623). Noting that, under Blakley a “waiver of appeal is ineffective to the extent that it precludes appellate review of constitutional speedy trial claims” when such claims are denied, the court observed that “it is equally established that a properly interposed constitutional claim may be deemed abandoned or waived if not pursued” (id., citing People v Rodriguez, 50 NY2d 553, 557 [1980]). Further, vacating defendant’s guilty plea under the circumstances presented

“would create the paradoxical result of allowing defendant to vacate his plea solely because the [judge taking the plea], rather than remaining silent, advised him that all pending motions had to be withdrawn as a condition of his plea, even though defendant is barred from pursuing the merits of his speedy trial motion in this Court” (id. at 624).

Finally, the Appellate Division mentioned the “factual distinctions between Blakley and this case”; namely, in Blakley, the prosecutor forced the defendant to choose between a plea conditioned on the waiver of his speedy trial claim or a trial made unfair by a three-year delay. By contrast, in this case

“the alleged delay was approximately 13 months, defendant was ready to proceed to trial on the plea date despite the pendency of his speedy trial motion, defendant raised the plea offer only because he felt pressured by the fact the trial was going to be further delayed due to his writ, and, in response to defendant’s inquiry about the plea, it was an impartial judge who raised the condition that defendant waive all pending motions and ensured that defendant understood and agreed to all of the terms of the plea offer” (id.).

The concurring Justice expressed the view that a “central issue” in this matter was whether the case-specific approach endorsed in White “remain[ed] good law in light of’ our decisions in Blakley and Callahan (Sutton) (id. [McGuire, J., concurring]). He concluded that case-specific analysis was reasonable where an undecided constitutional speedy trial claim was pending at the time of the guilty plea, noting that otherwise prosecutors would have “powerful incentives” not to offer reduced pleas until after such a motion, even if frivolous, was decided (id. at 627); and

“an otherwise identically situated defendant [would not be] entitled to vacatur of a guilty plea or any other relief if no one, not the court, the prosecutor or defense counsel, [made] any mention of a pending constitutional speedy trial motion. In that situation, the speedy trial claim would be waived by operation of law and the defendant would be entitled to no relief. A different result should not obtain merely because of on-the-record efforts by the court, the prosecutor or defense counsel to confirm or make clear to the defendant that the plea of guilty effectively waives the undecided constitutional speedy trial motion” (id. at 628).

He subsequently granted defendant’s application for leave to appeal, and we now affirm.

IL

We begin our analysis by reviewing White, Blakley and Sutton.

White

On August 30, 1967, a felony information was filed accusing White and two others of a robbery occurring in Yonkers on July 22, 1967. White, incarcerated in a Queens jail at the time, was soon advised orally of the detainer, which was, however, not lodged until February 10, 1968. He was indicted for first-degree robbery nearly three years later, on December 23, 1970, while serving a prison sentence for other crimes, and was arraigned nearly a year later still, on November 15, 1971. His assigned counsel promptly brought a CPLR article 78 proceeding to dismiss the indictment on speedy trial grounds. According to White’s attorney, Supreme Court denied the petition on the merits, but did not enter any order from which an appeal might be taken. Then, on December 4, 1971, the District Attorney advised defense counsel that White would be brought to trial on December 15, 1971.

On December 7, 1971, White sought, by motion returnable on December 17, 1971, to dismiss the indictment, alleging that the 51-month delay between August 1967 and November 1971 denied him his constitutional and CPL 30.20 rights to a speedy trial. Meanwhile, on December 14, 1971, the prosecutor, in addition to making an affirmation in opposition to White’s speedy trial motion, persuaded the court to mark the case ready for trial the next day, subject to a decision on the motion. That same day, the prosecutor offered White a plea to third-degree robbery on the condition that he withdraw his speedy trial motion before County Court rendered its decision; otherwise, the offer would be off the table. White agreed and pleaded guilty to a reduced charge on December 15, 1971. Upon White’s appeal, the Appellate Division affirmed in a one-sentence opinion stating that “any right which defendant may have had with respect to a dismissal of the indictment on account of delay was expressly waived by him” (40 AD2d 540, 540 [2d Dept 1972]).

The prosecutor took the position that White only had a right to test his speedy trial claim on appeal if he was convicted after trial or, alternatively, pleaded guilty to the indictment—options that he knowingly and voluntarily gave up by choosing to plead guilty to a lesser charge. We disagreed, observing that an “element of coercion [was] present not only in [White’s] waiver of his right to a speedy trial but also in his plea” because he had “no time to apprehend the relevant circumstances and likely consequences of his waiver” (32 NY2d at 399-400 [internal quotation marks omitted]). We stressed that “[p]articularly highhanded” was the prosecutor’s “limitation that [White’s] decision be given before the outcome of the speedy trial motion or the ‘deal was off; and this, after the trial judge had moved up the return date of the motion” (id. at 400). Concluding that “the district attorney’s maneuvering may only be characterized as unfair and over-reaching,” and that White was “clearly denied” a speedy trial as a matter of law, he was, in our view, “entitled to reversal of his conviction and dismissal of the indictment.” We therefore reversed the Appellate Division’s order and dismissed the indictment. (Id. at 400-401.)

Blakley

Blakley was arrested on November 15, 1965 and indicted on January 11, 1966 for second-degree assault (four counts) and a weapon possession crime in connection with the shooting of two victims on November 14, 1965. On February 21, 1968, he moved in County Court to dismiss the indictment for “want of prosecution” pursuant to section 668 of the then effective Code of Criminal Procedure. By decision dated March 6 and order entered April 4, 1968, the court denied the motion, commenting that the delay, while “regrettable,” had not “unduly prejudiced” Blakley, who was out of jail on bail.

On February 4, 1969, three years and one month following the filing of the indictment, Blakley was finally brought to trial. After testimony was taken from the two victims, he offered to plead guilty to two counts of second-degree assault. The prosecutor, however, would only recommend acceptance of the plea on the condition that Blakley agreed to withdraw any motions made on his behalf. Blakley acquiesced, but subsequently appealed, alleging that this requirement rendered his guilty plea involuntary. The Appellate Division, in a one-sentence opinion, modified in the interests of justice by reducing the concurrent sentences imposed on Blakley to time served, and, as so modified, affirmed (38 AD2d 563 [2d Dept 1971]).

We stated at the outset of our opinion that Blakley’s appeal

“require [d] us to decide whether a prosecutor may condition an offer to recommend a reduced plea upon the defendant’s withdrawal of his claim that his right to a speedy trial has been violated. We conclude that the nature of the speedy trial guarantee renders such a condition inherently coercive in a plea bargaining situation and that the plea so conditioned must be vacated” (34 NY2d at 313 [emphasis added]).

Observing that the denial of a speedy trial claim ordinarily survives a guilty plea, we commented that what

“the prosecutor attempted, in effect, [was] to deprive the defendant of his right to appeal the adverse determination ... by confronting him with a possibly unfair trial (because so tardy) on the one hand, and, on the other, offering him a reduced plea only if he would relinquish the speedy trial claim” {id. at 314).

We opined that “a prosecutor must not make the right to a speedy trial an item of barter in a plea bargaining situation” for “a variety of reasons,” including “a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused”; and considerations of

“fundamental fairness . . . since one of the purposes of the speedy trial guarantee is to prevent a defendant from being exposed to the hazard of a trial, after so great a lapse of time that the means of proving his innocence may not be within his reach—as, for instance, by the loss of witnesses or the dulling of memory” (id. [internal quotation marks omitted]).

Thus,

“[b]ecause the criminal justice system should scrupulously avoid the possibility that a plea of guilty may be tainted by unfairness, and because prosecutors should not be allowed to submerge speedy trial challenges, and the societal interests they represent, in plea bargains, we hold that a reduced plea conditioned upon a waiver of a speedy trial claim must be vacated. And this result follows regardless of the defendant’s success on the underlying speedy trial claim. . . .
“Of course, not only is the plea tainted, but the purported waiver of the speedy trial claim is ineffectual” (id. at 315 [citations omitted]).

Finally, “in the interests of judicial economy,” we reached the merits of Blakley’s underlying speedy trial claim, deciding that good cause had not been shown for delay of the trial, as was required under section 668 (id. at 313, 317-318). We therefore reversed the Appellate Division’s order and dismissed the indictment.

Sutton

Sutton, who was arrested on March 18, 1987 on several drug-related charges, subsequently moved for dismissal on statutory and constitutional speedy trial grounds because of the People’s 13-month delay in responding to his omnibus motion. Supreme Court denied the motion, and Sutton pleaded guilty to second-degree criminal sale of a controlled substance in full satisfaction of the indictment. At the plea hearing on May 31, 1989, the prosecutor stated that “[a]s a condition of this plea it was . . . negotiated that this defendant would waive any and all rights to appeal that he ordinarily would have.” The trial judge then questioned, “You understood that? You heard that mentioned before by your lawyer, Mr. Sutton?” and Sutton responded, “Yes.” At that point, he was remanded.

Sutton then tried to obtain review of the trial judge’s unfavorable disposition of his constitutional speedy trial motion, but the Appellate Division, enforcing the waiver, dismissed his appeal (175 AD2d 272 [2d Dept 1991]). As we subsequently explained, that court, citing Rodriguez, White and Blakley, expressed the view that

“even constitutional speedy trial claims are waivable and that a waiver such as [Sutton’s] should be enforced unless the record on appeal demonstrates that it was made under duress by a defendant whose only alternative was to face a trial whose fundamental fairness was compromised as a result of the delay” (80 NY2d at 279 [internal quotation marks omitted]).

We concluded that the Appellate Division had “misconstrue[d]” our decisions in Blakley and Rodriguez (id. at 282). In particular, we commented that in Blakley,

“this Court went beyond White’s case-specific analysis and held that the nature of the speedy trial guarantee renders [a waiver of such a claim] inherently coercive in a plea bargaining situation, so that a plea conditioned on a waiver must be vacated regardless of the substantive merits of the claim . . . While the Court did give effect to what it termed a ‘waiver’ of a speedy trial claim in Rodriguez . . . , that holding did not in any way impair the rule it established in Blakley. Rather, Rodriguez stands only for the limited proposition that a defendant who initially interposes a constitutional speedy trial claim but subsequently abandons it before a determination on the claim is made cannot subsequently raise that claim on appeal” (id. [internal quotation marks omitted]).

Citing People v Seaberg (74 NY2d 1 [1989]), we added that, in view of society’s interest in promoting speedy trials, “the parties cannot be permitted to foreclose appellate review through the plea bargaining process” and held, as in Seaberg, that

“a bargained-for waiver of the right to appeal is ineffective to the extent it impairs the defendant’s ability to obtain appellate review of a constitutional speedy trial claim. Moreover, this rule applies without regard to whether the facts in the particular case suggest duress arising from the circumstances underlying the speedy trial claim itself. In this case, the Appellate Division clearly erred when it declined to entertain defendant Sutton’s constitutional speedy trial claim on the merits because of the absence of a particularized showing of duress. For that reason, the [Appellate Division’s] order should be reversed and the matter remitted so that the Court can consider the merits of defendant’s constitutional speedy trial claim” (80 NY2d at 282).

Upon remittal, the Appellate Division rejected Sutton’s argument that his indictment should be dismissed on constitutional speedy trial grounds, and affirmed the judgment—i.e., his plea was not vacated (191 AD2d 599 [2d Dept 1993], Iv denied 81 NY2d 1020 [1993]).

IIL

As the foregoing discussion makes clear, our decisions in White, Blakley and Sutton dealt solely with attempts by prosecutors to manipulate plea bargaining so as to preclude judicial consideration of constitutional speedy trial claims, thereby obviating the risk of dismissal of indictments on these grounds. In these cases, the prosecutor recommended the plea contingent upon the defendant’s agreement to give up the right to have a speedy trial motion decided (White), or to have an adverse determination of the motion reviewed by the appellate courts (Blakley and Sutton). That is simply not what happened here. There were no such conditions or “strings” attached to the People’s plea offer, as described by defendant’s attorney both at the plea hearing and the plea withdrawal hearing. The question on which defendant focuses—whether, or to what extent, Blakley and Sutton may have modified White—is essentially beside the point in this case, which does not present a fact pattern of prosecutorial abuse or overreaching, and where defendant— unlike White, Blakley and Sutton—has shown no apparent interest in assuring judicial resolution of his constitutional speedy trial claim.

The trial judge on the morning of January 11, 2008, the scheduled trial date, learned that the Appellate Division had just granted defendant’s latest habeas corpus petition to the extent of transferring the matter to her for decision; the day before, a constitutional speedy trial motion filed by defendant, a prolific pro se litigant, was marked received in her trial part. At the plea hearing, she might have said that defendant should understand that, once he pleaded guilty, she would not be deciding any of his pending writs or motions; or that these writs and motions would be deemed withdrawn upon his guilty plea. Or, as the concurring Justice in the Appellate Division pointed out, she might have said nothing whatsoever on the topic since defendant abandoned the writs and motions by operation of law as soon as he pleaded guilty. Instead, electing to explain how defendant’s guilty plea would affect the status of his outstanding writs and motions, she used the word “condition,” implicating White, Blakley and Sutton.

We expect judges to express the consequences of a guilty plea clearly to the defendant during the plea hearing. But in cases too numerous to list dating from at least 1967, we have repeatedly steered clear of “a uniform mandatory catechism of pleading defendants” in favor of “broad discretions controlled by flexible standards” (People v Nixon, 21 NY2d 338, 353-354 [1967]). This being so, it should not matter that the trial judge failed to choose what we might in hindsight consider to be more felicitous words or turns of phrase when addressing defendant at the plea hearing. Her meaning was plain enough: defendant’s guilty plea meant his pending writs and motions would not be decided. In sum, on the record in this case “[t]here can be little doubt that the [plea] bargain was reasonable, that defendant knew and understood the terms of it and that he willingly accepted them” (Seaberg, 74 NY2d at 12).

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

Ciparick, J. (dissenting).

Because the trial judge in this case expressly conditioned defendant’s plea on the withdrawal of his constitutional speedy trial motion, his plea was inherently coercive in violation of our precedent and should be vacated. Therefore, I respectfully dissent.

I agree with the majority that People v White (32 NY2d 393 [1973]), People v Blakley (34 NY2d 311 [1974]) and People v Sutton (decided with People v Callahan, 80 NY2d 273 [1992]) are controlling here. In an effort to distinguish the pleas we vacated in those cases with the plea here, however, the majority places undue emphasis on the absence of any “attempts by [the] prosecutor[ ] to manipulate [the] plea bargaining so as to preclude judicial consideration of [defendant’s] constitutional speedy trial claim[ ]” (majority op at 218). In so doing, the majority misapprehends the centrality of our holdings in those cases: a plea must be vacated where it is conditioned on the withdrawal of a constitutional speedy trial claim. That the trial court—rather than the People—sought such condition before permitting defendant to plead guilty should not change the result.

Indeed, our decision in Blakley makes certain that our analysis should hinge on the special “nature of the [constitutional] speedy trial guarantee” (34 NY2d at 313). Critically, we explained that

“one of the purposes of the speedy trial guarantee is to prevent a defendant from being exposed to the hazard of a trial, after so great a lapse of time that the means of proving his innocence may not be within his reach—as, for instance, by the loss of witnesses or the dulling of memory” (id. at 314 [internal quotation marks omitted]).

Thus, in reversing the conviction in Blakley (and ultimately dismissing the indictment on the merits of the defendant’s motion), we observed that it was fundamentally unfair to “deprive the defendant of his right to appeal the adverse determination” of his constitutional speedy trial motion by insisting that he withdraw such motion before entering a guilty plea (id.).

It is true that it was the prosecutor in Blakley and not the court who insisted that the defendant withdraw his speedy trial motion. Unlike the majority, I do not see how that factor is in any way dispositive. Rather, our holding in Blakley is clearly rooted in protecting a defendant, faced with the prospect of a potentially untimely trial, from having to accept a plea offer conditioned on the relinquishment of a potentially meritorious constitutional speedy trial claim (see id. at 314-315). Whether a prosecutor or a trial judge conditions a plea upon such relinquishment should not alter a reviewing court’s inquiry. In either case, the plea should be vacated (see also Sutton, 80 NY2d at 282).

Our decision in White, which predates Blakley, further supports this position. In White, as the majority notes, the prosecutor offered the defendant a plea to a reduced count on the condition that he withdraw his speedy trial motion before the court had an opportunity to review the merits of the claim. In reversing the conviction (and ultimately dismissing the indictment on the merits of the defendant’s motion), we stressed that the prosecutor’s “maneuvering may only be characterized as unfair and over-reaching” and “[particularly highhanded” (32 NY2d at 400). What occurred in this case is no different. Is a trial court’s insistence that a defendant withdraw an undecided constitutional speedy trial motion before permitting a defendant to plea any less “unfair and over-reaching” or “highhanded”? The answer, of course, has to be “no.”

Nor can I agree with the majority’s seemingly alternative basis for affirming the judgment of conviction and sentence: that the trial court merely intended to inform defendant that “his pending writs and motions would not be decided” (majority op at 219) upon the entry of his guilty plea. That is not what the trial court said. The trial court, in no uncertain terms, stated: “I just want you to know that I will accept the plea, obviously, on the condition that [defendant] is withdrawing any and all motions that are outstanding before the Court.” In my view, there is a huge distinction between a motion or claim that goes undecided and is therefore abandoned by operation of law upon the entry of a guilty plea (see People v Rodriguez, 50 NY2d 553, 557 [1980]) and a court’s insistence that a defendant first withdraw all “his pending writs and motions” before the plea proceeding may ensue. While I agree with the majority that “we have repeatedly steered clear of ‘a uniform mandatory catechism of pleading defendants’ in favor of ‘broad discretions controlled by flexible standards’ ” (majority op at 219, quoting People v Nixon, 21 NY2d 338, 353-354 [1967]), the trial court could have explained much more explicitly that it would not have occasion to consider any of defendant’s outstanding motions—including his constitutional speedy trial motion—once he entered a plea of guilty.

Accordingly, I would vote to reverse the judgment of conviction and sentence, and remit to Supreme Court for further proceedings in accordance with this writing.

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

      . Defendant’s first assigned counsel made an omnibus motion in which he asked Supreme Court, among other things, to inspect the grand jury minutes. In a decision dated February 15, 2007, the court concluded that the evidence presented to the grand jury was legally sufficient to support the charges in the indictment, and that there were no other reasons for dismissal or reduction of the charges.

      . While not critical to the outcome of this appeal, it should be noted that it is not clear from the record whether the trial judge herself was aware on January 11, 2008 of the existence or nature of this particular motion made by defendant, who routinely filed pro se writs and motions.

      . Defendant had previously filed a pro se speedy trial motion alleging violation of CPL 30.30 (2) (a), which Supreme Court denied. With exceptions, this provision mandates release upon bail or recognizance of a defendant accused of at least one felony if the People are not ready for trial within 90 days of the defendant’s commitment to the sheriffs custody.

      . The form written waiver stated that defendant agreed to waive “any and all rights to appeal from the judgment of conviction . . . , with the exception of any constitutional speedy trial claim which [he] may have advanced, the legality of the sentence, [his] competency to stand trial and the voluntariness of th[e] waiver.” On this appeal, he is challenging the voluntariness of the waiver.

      . At the conclusion of the plea hearing, the prosecutor asked White to withdraw “all previously made motions in connection with this case,” and he agreed. The prosecutor also asked him to waive his right of appeal, and defense counsel responded that he was “not sure of the legality of that, but if . . . legal, [White was] willing to do that.” When the prosecutor pressed the matter, emphasizing that the People would “not accept this offered plea unless [the defendant was] willing to withdraw all previously made motions and . . . in fact agree[ ] to waive his right to appeal from the judgment of conviction,” the judge interjected that he was “going to instruct this defendant he has a right to appeal.” This led the prosecutor to elicit an affirmative response from White to the question, “[I]s it my understanding that you are waiving your right to appeal the judgment of conviction in consideration of this plea, if it is legally possible for you to do that?”

      . This provision stated as follows:
      “If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown” (see Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30, at 206-207 [2003 ed] [characterizing section 668 as one of several “archaic” and “wholly ineffective” sections of the Code of Criminal Procedure, which the CPL Revision Commission did not “carr(y) forward into the CPL”; the ready-for-trial time limitations adopted by the Legislature when it amended CPL 30.30 in chapter 184 of the Laws of 1972 were intended to create more enforceable requirements along these lines]).
      In People v Friscia (51 NY2d 845, 847 [1980]), we decided that a guilty plea operates as a waiver of the statutory right to dismissal under CPL 30.30 (citing People v Brothers, 50 NY2d 413, 418 [1980] [noting in dicta that “(i)nasmuch as a defendant’s right to a CPL 30.30 dismissal has its origin solely in legislative enactment which is in no way expressive of or dependent on any constitutional right to speedy trial, it may be that a subsequent plea of guilty . . . should be held to have operated as a waiver of the statutory entitlement to dismissal”]).

      . The prosecutor stated that “[b]efore recommending acceptance of this plea, I would ask [defense counsel] to withdraw any motions made heretofore by prior counsel and himself” (34 NY2d 313-314). Blakley’s attorney responded, “Oh, yes, I do so.” The court questioned, “All motions are withdrawn, [counsel]?” and the attorney replied, “Yes, sir.” The prosecutor then recommended acceptance of the plea sought by Blakley.

      . Blakley’s speedy trial claim was statutory, as previously noted. We later decided that only constitutional speedy tried claims survive a guilty plea (see supra at 214 n 6).

      . In Seaberg, we held that the right to appeal may be plea-bargained away, with certain exceptions, including constitutional speedy trial claims (74 NY2d at 9). Sutton’s guilty plea and appeal waiver slightly predated our decision in Seaberg. The Appellate Division cited Seaberg (175 AD2d at 273), but inexplicably did not discuss its effect on the enforceability of Sutton’s waiver of the right to appeal insofar as he sought review of the denial of his constitutional speedy trial claim.

      . Sutton did not ask for his plea to be vacated, although it is not obvious why this should make a difference if Blakley mandates plea vacatur, as the dissent and defendant maintain.


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

text:
    [970 NE2d 829, 947 NYS2d 794]
    Baygold Associates, Inc., Appellant, v Congregation Yetev Lev of Monsey, Inc., Respondent. (And Another Action.)
    Argued March 19, 2012;
    decided May 3, 2012

      POINTS OF COUNSEL

      Hinman Straub P.C., Albany (James T. Potter and Joseph M. Dougherty of counsel), and Maizes & Maizes, LLP, Bronx (Michael H. Maizes of counsel), for appellant.
    The Appellate Division erred in its application of the test for equitable relief where a tenant has failed to strictly comply with the renewal terms of a lease. (Fidelity & Columbia Trust Co. v Levin, 128 Misc 838, 221 App Div 786, 248 NY 551; Doepfner v Bowers, 55 Misc 561; J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392; Popyork, LLC v 80 Ct. St. Corp., 23 AD3d 538; Comprehensive Health Solutions v Trustco Bank, N.A., 277 AD2d 861; Dutchess Radiology Assoc. v Narotzky, 192 AD2d 1049; Tritt v Huffman & Boyle Co., 121 AD2d 531; Gallagher v Marconi, 68 Misc 2d 319; Central Hanover Bank & Trust Co. v Rabinowitz, 157 Misc 654; Cooper v Number 535 Park Ave., 73 AD3d 433.)

      Rosenwasser Law, PC., Montgomery (Stewart A. Rosenwasser of counsel), and Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for respondent.
    I. The court is without the jurisdiction to grant Baygold Associates, Inc.’s request for equitable relief. (J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392.) II. The Appellate Division properly declined to award equitable relief to Baygold Associates, Inc. as equity may not intervene to protect a revenue stream generated by Baygold’s subleasing of the premises to Israel Orzel. (Greenfield v Philles

      Records, 98 NY2d 562; Consedine v Portville Cent. School Dist., 12 NY3d 286; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; American Realty Co. v 64 B Venture, 176 AD2d 226; Singh v Atakhanian, 31 AD3d 425; Sy Jack Realty Co. v Pergament Syosset Corp., 27 NY2d 449; Cooper v Number 535 Park Ave., 73 AD3d 433; Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352; Dutchess Radiology Assoc. v Narotzky, 192 AD2d 1049.)
   OPINION OF THE COURT

Pigott, J.

In J. N. A. Realty Corp. v Cross Bay Chelsea, we held that equity will intervene to relieve a commercial tenant’s failure to timely exercise an option to renew a lease where (1) such failure was the result of “inadvertence,” “negligence” or “honest mistake”; (2) the nonrenewal would result in a “forfeiture” by the tenant; and (3) the landlord would not be prejudiced by the tenant’s failure to send, or its delay in sending, the renewal notice (42 NY2d 392, 394, 398-400 [1977]).

At issue on this appeal is whether the Appellate Division erred in holding that the out-of-possession tenant Baygold Associates, Inc. (Baygold) is not entitled to equitable relief excusing its failure to timely exercise its option to renew a commercial lease with the landlord Monsey Park Hotel (MPH). We conclude that it did not.

L

From 1972 through 1975, Baygold operated a nursing home in Monsey under the Rubenfeld family license. On August 2, 1976, Baygold entered into a lease with MPH, the owner of the premises, for a 10-year term. The lease gave Baygold the option to extend the lease term for four additional 10-year periods, provided Baygold gave written notice to MPH “by certified mail with return receipt requested” no later than 270 days prior to the expiration of each term or extended term. Baygold, with the consent of MPH, thereafter subleased the premises to its affiliate, Monsey Park Home for Adults (Monsey Park). Monsey Park operated the premises as a nursing home from 1976 through 1985, making approximately $1 million in improvements to the premises, including capital improvements to the roof, driveways and boiler.

In January 1985, Monsey Park, with MPH’s permission, sub-subleased the premises to a nonaffiliate, Israel Orzel, who continued to operate the premises as a nursing home. In August 1985, Baygold renewed the lease with MPH for two additional 10-year periods. During the Orzel tenancy, only Orzel made improvements to the premises. Orzel paid taxes and rent to MPH directly, but also paid Baygold approximately $200,000 in yearly rents under the sublease during the first 10 years of the subtenancy, and $240,000 annually during the second 10-year term.

In September 2005, a Baygold representative directed Bay-gold’s attorney to renew the lease for two additional 10-year terms. Whether the attorney actually prepared and sent the letter in compliance with the notice provision of the lease is disputed. In July 2007, the Rubenfelds, as successors to MPH, entered into a contract with defendant Congregation Yetev Lev of Monsey, Inc. (Congregation) for the sale of the premises. The Rubenfelds’ attorney apprised Baygold’s counsel that the lease was to expire on September 30, 2007. Although Baygold’s attorney provided a copy of a renewal letter dated November 1, 2005, he was unable to produce either a certified mail receipt or return receipt card. The Rubenfelds’ counsel thereafter advised Baygold’s attorney that Baygold would be deemed a month-to-month tenant as of September 30, 2007.

Baygold commenced an action against MPH seeking, among other things, “a declaration of the rights and legal relations of the parties . . . concerning the actual termination of the Lease.” Supreme Court held a bench trial to determine whether Bay-gold had complied with the lease renewal provision. The primary witness on that issue was Baygold’s counsel, who testified that he calculated when the lease renewal was to be sent, prepared the renewal letter, placed it in an envelope and took it the post office. He did not maintain a mail log nor did he affix the certified mail number on the letter. He could not locate the green return receipt card, nor did he recall receiving a green return receipt card in the mail, but he did produce his pre-bill worksheet that stated “[plrepare lease renewal letter to Rubenfeld.”

Supreme Court held the lease had not been properly renewed because Baygold failed to establish that notice was sent in compliance with the lease terms. It also rejected Baygold’s request for equitable relief, concluding that because Baygold’s counsel failed to allege any mistake at all, but rather testified that he actually complied with the renewal provision, Baygold failed to establish that the failure to renew was the result of an excusable default, i.e., inadvertence, negligence or honest mistake.

The Appellate Division found record support for Supreme Court’s conclusion that Baygold failed to comply with the renewal provision (81 AD3d 763, 764 [2d Dept 2011]). It also concluded that Supreme Court properly denied Baygold’s request for equitable relief, holding that Baygold failed to demonstrate “that it ‘made improvements of a substantial character’ in anticipation of renewing the lease” (id. at 765, quoting J. N. A. Realty, 42 NY2d at 398). This Court granted leave (17 NY3d 755 [2011]).

IL

For purposes of this appeal, we assume that Baygold’s failure to comply with the lease renewal provision was the result of an excusable default. The significant issue here is whether nonrenewal would result in a forfeiture by Baygold. A forfeiture results where the tenant “ ‘has in good faith made improvements of a substantial character, intending to renew the lease’ ” and the tenant “ ‘would sustain a substantial loss in case the lease were not renewed’ ” (J. N. A. Realty, 42 NY2d at 397-398, quoting 2 Pomeroy, Equity Jurisprudence § 453b, at 296 [5th ed]). In a similar vein, we have concluded that the “longstanding location for a retail business is an important part of the good will of that enterprise” and that a tenant may be entitled to equitable relief through the loss of such “a substantial and valuable asset” (Sy Jack Realty Co. v Pergament Syosset Corp., 27 NY2d 449, 453 [1971]). Our holding in J. N. A. Realty was premised on the concept that a tenant who has made improvements to a premises with the intention of renewing the lease should not be subjected to a forfeiture when it makes an honest mistake in failing to exercise a renewal option and the landlord suffers no prejudice thereby.

We conclude that the Appellate Division properly held that Baygold failed to meet the second prong of the J. N. A. Realty test. Baygold concedes that it has not made any improvements to the premises since 1985, but claims that it made $1 million in improvements between 1972 and 1985 with the expectation that it would derive revenue from possessing a 50-year lease. Unlike the tenant in J. N A. Realty, however, neither Baygold nor any of its affiliates was a tenant in possession of the premises at the time of the failure to comply with the lease renewal provision. Nor can it be said that Baygold, having profited from its sublease with Orzel since 1985 while having expended no monies on improvements, would incur a “substantial loss” should the lease not be renewed, as Baygold has undoubtedly “reaped the benefit of any initial expenditure” (Wayside Homes v Purcelli, 104 AD2d 650, 651 [2d Dept 1984], lv denied 64 NY2d 602 [1984]). The forfeiture rule was crafted to protect tenants in possession who make improvements of a “substantial character” with an eye toward renewing a lease, not to protect the revenue stream of an out-of-possession tenant like Baygold.

Similarly, it cannot be said that Baygold’s improvements— made over 20 years earlier when it was a tenant in possession— were made with a view toward renewal of the lease such that Baygold’s equitable interest in a renewal must be protected. Those improvements are too attenuated from Baygold’s failure to exercise the option over 20 years later (compare J. N. A. Realty, 42 NY2d 392 [1977] [tenant improvements made before and after expiration of lease option]; Popyork, LLC v 80 Ct. St. Corp., 23 AD3d 538 [2d Dept 2005] [fast food tenant that expended $550,000 to acquire former tenant’s rights under lease plus another $300,000 in improvements during its three years of operation would suffer “substantial forfeiture” if five-year lease not renewed]; Bench ‘N’ Gavel Rest. v Time Equities, 169 AD2d 755 [2d Dept 1991] [tenant who expended $125,000 to purchase the business and lease plus another $100,000 for renovations a year before tenant failed to comply with lease renewal provision would suffer a forfeiture if lease not renewed]).

Baygold attempts to use the improvements Orzel made to the premises between 1985 and 2007 as part of its claim of forfeiture, asserting that Baygold’s forbearance in collecting “substantial rent increases” due from Orzel under the sub-sublease was extended in anticipation of a 50-year lease term. But our holding in J. N. A. Realty is restricted to tenants who make “considerable investment in improvements” to the premises in anticipation of the lease renewal or would “lose a considerable amount of . . . customer good will” should the lease not be renewed (see J. N. A. Realty, 42 NY2d at 399-400). This narrow equitable doctrine was never intended to apply in a circumstance like this, where the out-of-possession tenant fails to make any improvements in anticipation of renewal and does not possess any good will in a going concern. Although the record indicates that Baygold allegedly “deferred” rent increases for 20 years because Orzel claimed that he was having difficulty in paying Baygold’s rent and making improvements, it cannot be said that the Appellate Division erred in concluding that Baygold failed to demonstrate its entitlement to equitable relief, because “[b]y its nature [such] relief must always depend on the facts of the particular case” (J. N. A. Realty, 42 NY2d at 400) and, here, there was ample support for its conclusion that Baygold was not entitled to such relief.

Finally, we reject Baygold’s assertion that it is entitled to equitable relief because it incurred litigation expenses to cure alleged defaults on the part of Orzel, who allegedly entered into an illegal sub-subtenancy. Such expenses, which were ostensibly incurred by Baygold as part of its obligations to MPH under the MPH-Baygold lease, do not constitute “substantial improvements” to the premises.

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

Smith, J. (dissenting).

The majority seems to me to make an arbitrary distinction between tenants and subtenants in applying the rule of J. N. A. Realty Corp. v Cross Bay Chelsea (42 NY2d 392 [1977]).

As we explained in J. N. A., “when a tenant in possession under an existing lease has neglected to exercise an option to renew, he might suffer a forfeiture if he has made valuable improvements on the property” (id. at 397). We held that, to prevent such a forfeiture, a tenant “should not be denied equitable relief from the consequences of his own neglect or inadvertence,” if the neglect or inadvertence has caused no harm to the landlord (id. at 398).

Here, it is a subtenant and not a tenant who has made the improvements, but the result of the tenant’s inadvertence is no less a forfeiture. Because the tenant failed to send a certified mail notice by the prescribed date, the subtenant loses improvements that cost, according to evidence in the record, several hundred thousand dollars; the tenant loses the revenue it anticipated from the sublease; and the landlord gets the improvements for nothing.

The only distinction between this case and J. N. A. is that the subtenant, not the tenant, was the party “in possession” and the party that paid for the improvements. Why that should make a difference is a question that the majority opinion makes no attempt to answer.

Chief Judge Lippman and Judges Ciparick and Read concur with Judge Pigott; Judge Smith dissents in a separate opinion in which Judge Graffeo concurs; Judge Jones taking no part. Order affirmed, with costs.

       By stipulation of the parties, Congregation, which purchased the premises after the action commenced, was substituted as defendant. Baygold affiliate Monsey Park commenced a separate action against Orzel challenging, among other things, breaches of the Orzel sublease. Per agreement by the parties, that action has been stayed pending the outcome of this action.