text:
    [907 NE2d 700, 879 NYS2d 822]
    Lisa C. Green, Respondent, v William Penn Life Insurance Company of New York, Appellant.
    Argued March 25, 2009;
    decided May 5, 2009

      POINTS OF COUNSEL

      Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of counsel), for appellant.
    I. The Appellate Division majority applied an erroneous standard of review. (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Thoreson v Penthouse Intl., 80 NY2d 490; Abrahami v UPC Constr. Co., 224 AD2d 231; Fryling v Omer Constr. Co., 286 AD2d 983; Healy v Williams, 30 AD3d 466; Kiamos & Tooker v Zelis Florist, 264 AD2d 623; Meadox Meds., Inc. v Life Sys., Inc., 3 F Supp 2d 549; Oelsner v State of New York, 66 NY2d 636; Amend v Hurley, 293 NY 587.) II. The decision of the trial court was supported by a fair interpretation of the evidence. (Schelberger v Eastern Sav. Bank, 60 NY2d 506; Joseph Schachter & Co. v John Hancock Mut. Life Ins. Co., 801 F2d 563; Thoreson v Penthouse Intl., 80 NY2d 490; Tidball v Tidball, 93 AD2d 954.) III. The Appellate Division majority misapplied the presumption against suicide. (Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178; Schelberger v Eastern Sav. Bank, 60 NY2d 506.) IV. The cremation of the body of the insured following plaintiffs denial of permission to perform any postmortem testing, combined with the majority’s application of the presumption against suicide, deprived William Penn Life Insurance Company of New York of the right to defend this case. (Rinaldo v New York City Tr. Auth., 39 NY2d 285; Homer v Guardian Mut. Ins. Co., 67 NY 478; Prink v Rockefeller Ctr., 48 NY2d 309.)

      Thomas Torto, New York City, and S. Edmund Resciniti, Roslyn Heights, for respondent.
    I. The Appellate Division’s exercise of its discretionary authority to review the trial records de novo and grant the judgment it finds warranted by the facts constitutes a permissible standard of Appellate Division review. (Thoreson v Penthouse Intl., 80 NY2d 490; Claridge Gardens v Menotti, 160 AD2d 544; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Bernardine v City of New York, 294 NY 361; York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128; People ex rel. MacCracken v Miller, 291 NY 55; Matter of Fasano v State of New York, 113 AD2d 885; Marren v State of New York, 142 AD2d 717; Hunts Point Term. Produce

      Coop. Assn., Inc. v New York City Economic Dev. Corp., 36 AD3d 234; Pordy v Scot Serv. Co., 15 AD2d 911.) II. The Appellate Division’s determination to exercise its de novo review powers and grant the judgment it finds warranted by the facts is a discretionary determination which is not reviewable by this Court. (Herrick v Second Cuthouse, 64 NY2d 692; Matter of People [Second Russian Ins. Co.], 244 NY 606; Small v Lorillard Tobacco Co., 94 NY2d 43; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178.) III. The Appellate Division properly applied the presumption against suicide. (Schelberger v Eastern Sav. Bank, 93 AD2d 188, 60 NY2d 506; Mallory v Travelers’ Ins. Co., 47 NY 52; Begley v Prudential Ins. Co. of Am., 1 NY2d 530; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178; Miller v Continental Ins. Co., 40 NY2d 675; Broun v Equitable Life Assur. Socy. of U. S., 69 NY2d 675; Nathan v New York Life Ins. Co., 8 Misc 2d 5; Skylarsky v New Hope Guild Ctr., 9 Misc 3d 1108[A], 2005 NY Slip Op 51450[U]; Matter of Friedman v NBC Inc., 178 AD2d 774; Matter of Bruning v Sheffield Farms Co., 8 AD2d 241.) IV. Defendant’s argument that plaintiff’s refusal to consent to an autopsy of the deceased should essentially estop her from relying on the presumption against suicide raises a matter of discretion which is beyond the review power of this Court. (Herrick v Second Cuthouse, 64 NY2d 692.) V. Defendant waived its argument that plaintiff should essentially be estopped from relying on the presumption against suicide by failing to interpose it as an affirmative defense in its answer. (Dougherty v City of Rye, 63 NY2d 989; Morgan v Morgan, 21 AD3d 1068.) VI. Defendant’s argument that plaintiff should essentially be estopped from relying on the presumption against suicide so that it is not deprived of due process has not been preserved for review by this Court. (Matter of Barbara C., 64 NY2d 866; Lichtman v Grossbard, 73 NY2d 792; Matter of Peter L., 59 NY2d 513; Tumolillo v Tumolillo, 51 NY2d 790; Di Bella v Di Bella, 47 NY2d 828.) VII. Plaintiff is not estopped from relying on the presumption against suicide. (Coronel v Chase Manhattan Bank, 19 AD3d 310; Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068; Brown v Daisy Mfg. Co., 129 AD2d 995; Gerber v Rosenfeld, 18 AD3d 812; Schelberger v Eastern Sav. Bank, 93 AD2d 188.) VIII. Alternatively, the matter should be remanded to the Appellate Division to determine whether defendant’s expert, Dr. Baden, should have been precluded, upon the grounds that (1) defendant failed to show good cause for disclosing, for the first time during the middle of trial, that it had an expert witness, and (2) defendant’s retention of the expert was contrary to its prior discovery response that it had not retained an expert.
   OPINION OF THE COURT

Smith, J.

The Appellate Division held that an attempt to prove a death was caused by suicide must fail as a matter of law, unless suicide is the only reasonable finding permitted by the evidence. We hold that the Appellate Division misconstrued the presumption against suicide. It is a guide for the factfinder, not a rule that compels a result.

I

Alan Green died on February 20, 2002. His life was insured by defendant under a $500,000 policy issued December 3, 2001. The policy provided: “If the insured dies by suicide within two years from the Date of Issue of this contract, the only death benefit will be the sum of premiums paid.” Plaintiff, Mr. Green’s widow, made a claim for the face amount of the policy. Defendant rejected the claim on the ground that Mr. Green had died by suicide, and plaintiff brought this action.

Considerable evidence supported defendant’s contention that Mr. Green committed suicide. He was found lying on his bed, with an empty glass on the nightstand beside him and two empty bottles that had contained recently-prescribed pain medication in the nightstand drawer. He had been unemployed for months. He had seen a doctor on the day before his death; the doctor found him to be in good physical health, but noted that he had “suicidal thoughts.” According to a police report, plaintiff said on the night of her husband’s death that he had been depressed, and had overdosed on pain medication. She refused to permit an autopsy or a toxicological examination of his body, saying that such intrusions were forbidden by Jewish religious law, but she ordered the body cremated in violation of that religious prohibition.

There was also evidence supporting plaintiffs contention that suicide was not the cause of death. No suicide note was found. Mr. Green had no history of mental illness, and had not attempted suicide before. The doctor who noted his “suicidal thoughts” also quoted him as saying he was “[n]ot suicidal” and noted that he had “no plans” for suicide. There was no proof of how long the pill bottles had been empty; plaintiff offered testimony suggesting that she and her husband might have taken all the pills in normal doses over a period of weeks. Family members testified that Mr. Green had behaved normally shortly before his death; they described him as “upbeat” and “positive.”

After a nonjury trial, Supreme Court found that Mr. Green had committed suicide, and dismissed the complaint. The Appellate Division, with two Justices dissenting, reversed and directed the entry of judgment for plaintiff (Green v William Penn Life Ins. Co. of N.Y., 48 AD3d 37 [1st Dept 2007]). In reversing, the Appellate Division did not exercise its factual review power, but held that “the evidence failed as a matter of law to overcome the presumption against suicide” (id. at 44). It reasoned that because “there are other reasonable conclusions that may be drawn from the evidence, aside from suicide,” the “application of the law regarding the presumption against suicide necessitated a directed verdict in this case” (id. at 40). Defendant appeals as of right, pursuant to CPLR 5601 (a), and we now reverse.

II

We have repeatedly held that a presumption against suicide is applicable in litigation under life insurance policies (Schelberger v Eastern Sav. Bank, 60 NY2d 506 [1983]; Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178 [1944]; cf. Matter of Infante v Dignan, 12 NY3d 336 [2009] [decided today]). The presumption “springs from strong policy considerations as well as embodying natural probability” (Schelberger, 60 NY2d at 510), and we held in both Wellisch and Schelberger that the presumption justified leaving the issue of suicide to the jury, even where powerful evidence pointed to suicide as the cause of death.

We have never held, however, that the presumption against suicide requires rejection of a claim of suicide as a matter of law. As long as such a claim finds support in the evidence, a fact-finder should decide it. The presumption, as we said in Wellisch, is “really a rule or guide for the jury in coming to a conclusion on the evidence” (293 NY at 184). Where the evidence leaves open two possible findings, it is “the jury’s business to resolve the doubt” (id. at 185).

The Appellate Division’s error here appears to arise from a jury charge we approved in Schelberger—a charge based on the New York Pattern Jury Instructions which then, as now, contained this language: “You may make a finding of suicide only if you are satisfied from the evidence, and taking into consideration the presumption against suicide, that no conclusion other than suicide may reasonably be drawn” (60 NY2d at 509; see PJI 1:63.2). This language should not be taken to mean that, where more than one conclusion is reasonably possible, suicide is excluded as a matter of law. If that were true, the issue of suicide could never be decided by a factfinder; a verdict would have to be directed against the party asserting suicide whenever the evidence was inconclusive, and in that party’s favor when suicide was conclusively proved. The main point of both Wellisch and Schelberger is to the contrary: Except in rare cases, a claim of suicide presents a factual issue, not a legal one.

The instruction that a finding of suicide is permissible only when “no conclusion other than suicide may reasonably be drawn” is directed at jurors deciding facts, not at judges deciding the law; it is a way of impressing on jurors’ minds that the presumption against suicide is a strong one—of telling them they should not find suicide unless the evidence shows suicide to be highly probable. Of course, the same is true of a judge sitting as factfinder in a nonjury trial. Here, the evidence was strong enough to permit a finding of suicide, though not to require it.

Because there was evidence legally sufficient to support Supreme Court’s decision, the Appellate Division erred in rejecting the finding of suicide as a matter of law. We remit the case to the Appellate Division, so that it can exercise its weight of the evidence review power, and consider any other issues necessary to resolve the case.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of the facts and issues raised but not determined on the appeal to that court.

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

Order reversed, etc.


source: Caselaw Access Project

author: ClPAKICK, J.

license: Public Domain

text:
    [912 NE2d 26, 884 NYS2d 194]
    David A. Kipper, M.D., Appellant, et al., Plaintiff, v NYP Holdings Co., Inc., Doing Business as The New York Post, Respondent.
    Argued March 24, 2009;
    decided April 30, 2009

      POINTS OF COUNSEL

      Jaroslawicz & Jaros, LLC, New York City (David Jaroslawicz, Robert J. Tolchin and Elizabeth Eilender of counsel), for appellant.
    I. The Appellate Division erroneously ignored defendant’s reckless disregard for the truth. (Wilsey v Saratoga Harness Racing, 140 AD2d 857; McGovern v Hayes, 135 AD2d 125; New York Times Co. v Sullivan, 376 US 254; Freeman v Johnston, 84 NY2d 52; Rivera v Time Warner Inc., 56 AD3d 298; Gertz v Robert Welch, Inc., 418 US 323.) II. Plaintiff is not a public figure. (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Dunham v Hilco Constr. Co., 89 NY2d 425; Cover v Cohen, 61 NY2d 261; New York Times Co. v Sullivan, 376 US 254; Waldbaum v Fairchild Pubis., Inc., 627 F2d 1287, 449 US 898; Gertz v Robert Welch, Inc., 418 US 323; Horowitz v Mannoia, 10 Misc 3d 467; Park v Capital Cities Communications, 181 AD2d 192; James v Gannett Co., 40 NY2d 415; Time, Inc. v Firestone, 424 US 448.)

      Hogan & Hartson LLP, New York City (Slade R. Metcalf, Katherine M. Bolger and Rachel F. Strom of counsel), for respondent.
    I. This Court should review the order below in accordance with this Court’s long-held tradition of protecting the rights of the press. (Bose Corp. v Consumers Union of United States Inc., 466 US 485, 467 US 1267; Immuno AG. v Moor-Jankowski, 77 NY2d 235, 500 US 954; Freeman v Johnston, 84 NY2d 52, 513 US 1016; Sweeney v Prisoners’ Legal Servs. of N.Y., 84 NY2d 786; Mahoney v Adirondack Publ. Co., 71 NY2d 31.) II. This Court should affirm the First Department’s decision because David Kipper has not produced any evidence of constitutional malice. (New York Times Co. v Sullivan, 376 US 254; Curtis Publishing Co. v Butts, 388 US 130; Gertz v Robert Welch, Inc., 418 US 323; Anderson v Liberty Lobby, Inc., 477 US 242; Secord v Cockburn, 747 F Supp 779; Freeman v Johnston, 84 NY2d 52; Roche v Hearst Corp., 53 NY2d 767; Sprewell v NYP Holdings, Inc., 43 AD3d 16; Karaduman v Newsday, Inc., 51 NY2d 531; Washington Post Co. v Keogh, 365 F2d 965, 385 US 1011.) III. The question of whether David Kipper is a public figure is not properly before this Court. (Quain v Buzzetta Constr. Corp., 69 NY2d 376.) IV. David Kipper is “unquestionably a public figure.” (Horowitz v Mannoia, 10 Misc 3d 467; James v Gannett Co., 40 NY2d 415; Maule v NYM Corp., 76 AD2d 58, 54 NY2d 880; Immuno AG. v Moor-Jankowski, 77 NY2d 235; Wilsey v Saratoga Harness Racing, 140 AD2d 857; Kelly v State of New York, 131 AD2d 176; Thomas v Los Angeles Times Communications, LLC, 189 F Supp 2d 1005; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Lopez v Univision Communications, Inc., 45 F Supp 2d 348; Meeropol v Nizer, 560 F2d 1061.)
   OPINION OF THE COURT

ClPAKICK, J.

In this appeal, we must determine whether the summary judgment record contains clear and convincing evidence that defendant published a false and defamatory statement concerning the revocation of plaintiffs medical license with “actual malice,” as defined in New York Times Co. v Sullivan (376 US 254 [1964]). Because it does not, we affirm the Appellate Division’s grant of summary judgment to defendant.

I.

On December 7, 2003, page 24 of the New York Post’s Sunday edition carried a short, eight-paragraph, “rewrite” of a 98-paragraph article taken from the Los Angeles Times’s wire service. The Times article, entitled “Harsh Reality of ‘Osbournes’ No Laughing Matter,” described the rock singer John “Ozzy” Osbourne’s allegations that his former physician, plaintiff David A. Kipper, had overprescribed various medications to him during the time that Osbourne starred in a television reality series. In addition, the Times article accurately stated that the California Medical Board had “moved to revoke” plaintiff’s license due to his alleged gross negligence in the treatment of other patients. But the Post article, which appeared under the inaccurate headline “Ozzy’s Rx doc’s License Pulled,” contained an error. Despite clearly indicating that it was based upon “Los Angeles Times reports,” the sixth paragraph of the Post rewrite incorrectly stated that “the state medical board revoked Kipper’s license.”

The circumstances surrounding the Post’s erroneous statement are not entirely clear. The record reveals that, sometime during the evening of December 6, a Post editor assigned the task of rewriting the wire service story to a then-part-time reporter, Lyle Hasani Gittens. According to Gittens, the Post rewrite was slated to appear in the second edition of the paper, the usual deadline for which was “around 8:00 to 9 o’clock.” Gittens swore in an affidavit and testified at his deposition that he did not recall writing and did not think he wrote that plaintiff’s license was revoked, a statement that defendant concedes was both false and defamatory. He speculated that the error might have occurred during the editing process.

After Gittens prepared the rewrite on a personal computer, he transmitted it to an electronic “basket” where it was reviewed by an editor. Gittens was aware that editors sometimes altered the text of articles and, as typical of such editing, he cited stylistic changes to an article’s lead, or first, paragraph. But he denied having any knowledge that Post editors deliberately changed the facts of stories.

The record sheds no light on the actual editing of Gittens’s rewrite. The editor responsible for it, Todd Venezia, testified that he would “never deliberately” falsify information pertaining to a doctor’s licensure, but he could not offer any specific details pertaining to his review of the December 7 rewrite. Moreover, the record does not contain the original draft that Gittens submitted to Venezia.

An affidavit submitted by the Post’s metropolitan editor, Jesse Angelo, does, however, set forth the path that a rewrite generally travels after editorial review. At that point, it is sent to the copy desk for additional checking of grammar, punctuation and accuracy as well as any reduction in text necessary to fit the paper’s layout requirements. The copy desk is also responsible for preparing headlines before the article is processed by the production department for page-setting and transmission to the printer. How these steps were accomplished prior to publication of the “Ozzy” rewrite is not revealed by the record.

Apparently, the sole source material for Gittens’s rewrite was the Los Angeles Times wire service story. Gittens testified that he did “not recall” making any independent effort to verify the status of plaintiff’s license prior to publication of the Post article. Additionally, Gittens remarked that Post editors would “[n]ot necessarily” engage in additional fact-checking after an article’s submission unless “something very conspicuous . . . leap[t] out” at them. Accepting the substance of a wire service story was not unusual, according to Angelo. He averred that the Post occasionally reprints stories disseminated on reputable wire services, such as that of the Los Angeles Times, verbatim and that additional research regarding the factual accuracy of such stories is not generally undertaken. With respect to the Los Angeles Times wire service dispatch relevant here, Angelo stated that “this is not the kind of story that [the Post] would have expected a reporter to do additional research [on].”

Nonetheless, Angelo explained that a reporter performing a rewrite may make “minor editorial changes,” including “more interesting word selection,” before publication in the Post. During his deposition, Gittens provided additional details about the rewriting process, stating that it essentially entailed shortening the length of a wire service dispatch and changing its “lead” paragraph “to make it more Post-like,” by which he meant “less boring than the Los Angeles Times” or “[a] better read.” The lead paragraph in the rewrite of which plaintiff complains, however, correctly stated that plaintiff was “under investigation for over-prescribing drugs.”

On January 30, 2004—nearly two months after it was published—counsel for plaintiff wrote to the Post asserting that the December 7 rewrite was false and defamatory and “published with reckless disregard for the truth.” The letter demanded a retraction within 14 days. The Post complied, publishing a “Correction” on page 26 of its February 9 edition, which stated that the state Medical Board had “moved to revoke [plaintiffs] license, although no action has as yet been taken.” Plaintiff then commenced this libel suit on November 23, 2004, almost a year after the Post rewrite was first published and more than nine months after publication of the requested retraction.

Following discovery, defendant moved for summary judgment. As relevant here, Supreme Court denied the motion (15 Misc 3d 1136[A], 2007 NY Slip Op 51005[U]), reasoning that defendant bore the burden of demonstrating that its misstatement regarding the status of plaintiffs license was not published with actual malice as defined by New York Times—i.e., with knowledge of falsity or a reckless disregard for the truth. A unanimous Appellate Division reversed, granting defendant summary judgment and dismissing the complaint (see 47 AD3d 597, 598 [1st Dept 2008]). We granted leave to appeal (11 NY3d 704 [2008]) and now affirm.

II.

As set forth in New York Times Co. v Sullivan (376 US 254 [1964]) and its progeny, the US Constitution’s First Amendment bars a public figure from recovering damages in a libel action unless clear and convincing evidence proves that a false and defamatory statement was published with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (id. at 279-280, 285-286; Masson v New Yorker Magazine, Inc., 501 US 496, 511 [1991]; Harte-Hanks Communications, Inc. v Connaughton, 491 US 657, 666-667 [1989]; Bose Corp. v Consumers Union of United States, Inc., 466 US 485, 511 [1984]). The clear and convincing evidence standard is applicable to a trial court’s assessment of a libel defendant’s motion for summary judgment (see Anderson v Liberty Lobby, Inc., All US 242, 252 [1986]; see also Freeman v Johnston, 84 NY2d 52, 57 [1994]). In such a posture, the question is “whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not” (Anderson, 477 US at 255-256).

Thus, a libel defendant’s burden in support of summary judgment is not, as Supreme Court reasoned, to prove as a matter of law that it did not publish with actual malice, but to point to deficiencies in the record that will prevent plaintiff from proving that fact by clear and convincing evidence (cf. Roche v Hearst Corp., 53 NY2d 767, 769 [1981]; Millus v Newsday, Inc., 89 NY2d 840, 843 [1996]). On appeal, our task is to undertake an independent review to determine whether the record evidence is capable of demonstrating actual malice with “convincing clarity” (see Freeman, 84 NY2d at 57). We turn then to plaintiff’s argument that the record contains evidence sufficient for a reasonable jury to find that the Post published the erroneous statements regarding his license with reckless disregard for the truth.

Although incapable of “one infallible definition . . . reckless conduct is not measured by whether a reasonably prudent [person] would have published, or would have investigated before publishing” (see St. Amant v Thompson, 390 US 727, 730-731 [1968]). Instead, to cross the constitutional threshold of actual malice, there must be “clear and convincing evidence . . . that the author in fact entertained serious doubts as to the truth of his publication or acted with a high degree of awareness of . . . probable falsity” (see Masson, 501 US at 510 [citations and internal quotation marks omitted]). The inquiry is thus a subjective one, focusing upon the state of mind of the publisher of the allegedly libelous statements at the time of publication (see Bose Corp., 466 US at 511 n 30; Harte-Hanks, 491 US at 689). This decidedly high standard of culpability has been set because “it is essential that the First Amendment protect some erroneous publications as well as true ones” (see St. Amant, 390 US at 732). The actual malice standard recognizes that falsehoods relating to public figures are “inevitable in free debate” and that publishers must have sufficient “breathing space” (see Hustler Magazine, Inc. v Falwell, 485 US 46, 52 [1988]) so that the First Amendment’s commitment to “the principle that debate on public issues should be uninhibited, robust, and wide-open” will be realized (see New York Times, 376 US at 270).

We agree with the Appellate Division that the present record lacks the clear and convincing evidence necessary for a jury to conclude that defendant’s inaccurate statements were published with actual malice. As an initial matter, plaintiff’s reliance upon the Post’s failure to employ fact-checkers, to attempt to verify the status of his license prior to publication, or to identify those individuals responsible for the false headline and statement is misplaced. Put simply, such proof of “[m]ere negligence does not suffice” to establish actual malice by clear and convincing evidence (see Masson, 501 US at 510). Conceivably, in an extreme case, a failure to investigate could be so gross as to prove a willful avoidance of knowledge (cf. Harte-Hanks, 491 US at 690-693), but this is not that case.

We are concerned here with whether there is “concrete” or “affirmative evidence” (see Anderson, 477 US at 256, 257) in the record that would allow a jury to conclude with “convincing clarity” (see Freeman, 84 NY2d at 56) whether the Post’s employees actually entertained serious doubts about the truth of the rewrite’s inaccurate headline and sentence or that they published those statements with a high degree of awareness of their falsity. Plaintiff argues that a jury applying the New York Times actual malice standard could find in his favor because the record establishes that a Post editor fabricated the facts concerning plaintiffs licensure to make Gittens’s rewrite “more sensational[ ]” and thereby generate increased sales. Other than the fact that the rewrite contains two erroneous statements, however, there is no evidence that Gittens, his editor Venezia, or anyone else at the Post seriously doubted the truth of the complained-of statements or was highly aware that they were incorrect prior to publication. Evidence of falsity does not equate with proof of actual malice (see Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39-40 [1987]).

Given this lack of concrete proof, plaintiff relies heavily upon Gittens’s testimony that the lead paragraph of a wire service article was usually edited to make it “more Post-like.” But the full context of Gittens’s testimony along with his affidavit, Angelo’s affidavit, and Venezia’s testimony, demonstrate that this shorthand phrase referred to stylistic alterations and not to the fabrication of facts. A writer can make an article a “better read” and engage in “more interesting word selection” without sacrificing factual integrity. Clearly, the First Amendment offers no shield to “calculated falsehoods” (see Harte-Hanks, 491 US at 687 n 34, quoting Garrison v Louisiana, 379 US 64, 75 [1964]; Cantrell v Forest City Publishing Co., 419 US 245, 253 [1974]), but at no point does this record even suggest that the Post set out to falsely defame plaintiff in this instance, or other individuals regularly, to increase its sales. Moreover, plaintiff’s heavy reliance on the “more Post-like” testimony is flawed since Git-tens’s deposition indicates that he was using that jargon to refer to changes made to a rewrite’s lead paragraph. Here, however, plaintiff does not contend that that paragraph is inaccurate.

We recognize the danger of awarding summary judgment solely upon the defendant’s professions of good faith in publishing libelous material (see St. Amant, 390 US at 731-732). But the U.S. Supreme Court has instructed that a plaintiff must be held to the burden of adducing clear and convincing evidence of actual malice at the summary judgment stage so long as there has been a “full opportunity to conduct discovery” (see Anderson, 477 US at 257). Here, there was such an opportunity. But this public figure plaintiff has come forward with nothing more than a mere hope that a jury would discredit the Post employees’ testimony. This is insufficient (see Anderson, 477 US at 256-257, quoting Bose Corp., 466 US at 512 [“discredited testimony is not normally considered a sufficient basis” for defeating a proper summary judgment motion (internal quotation marks and alteration omitted)]). As we stated in Trails W. v Wolff (32 NY2d 207 [1973]), it is “not enough” for a libel plaintiff resisting a motion for summary judgment to rely upon “[s]uspicion, surmise and accusation” (see id. at 221 [internal quotation marks omitted]).

Rather, as in Prozeralik v Capital Cities Communications (82 NY2d 466 [1993]), a plaintiff seeking jury resolution must point to facts and circumstances that could prove actual malice under the New York Times standard. In that case, there was evidence that a television and radio broadcaster’s news employees had surmised that plaintiff was a victim of a beating and abduction possibly orchestrated by members of organized crime solely because he, like “countless” other individuals, was a restaurateur in the Niagara region (see id. at 475-476). This assumption was sheer “rootless speculation,” lacking any “basis or source whatsoever” (id.). Although the defendant claimed to have verified the plaintiffs identity as the victim with a spokesperson for the Federal Bureau of Investigation prior to issuing broadcasts relaying that information to the public, the FBI’s spokesperson denied having made any such confirmation (id.). Furthermore, the broadcasts occurred during a period when the defendant’s stations were engaged in a ratings competition for advertising revenues and after a rival television station had already announced the name of the actual victim the night before the defendant’s newscasts (id.). And although the defendant did broadcast a retraction after being made aware of its error, the retraction claimed that the FBI had previously confirmed the plaintiffs status as the victim even after the FBI spokesperson expressly told the broadcaster’s news director that this had not occurred {id.). In light of these facts and circumstances, we concluded that “[w]hile falsity alone and negligence alone would not be sufficient to sustain plaintiffs burden, there is enough in this case to submit the issue of actual malice to a jury for factual resolution” {id. at 476).

The same cannot be said here. First, the possible revocation of defendant’s license was accurately mentioned in a lengthy Los Angeles Times wire service article. Thus, plaintiffs license controversy was not thrust into the public eye merely on defendant’s whim. Second, there is no evidence that defendant’s employees intentionally or recklessly fabricated the relevant false statements. Although the actual status of plaintiffs license could be verified through an accurate reading of the Times article, this potentiality does not negate the possibility that Git-tens or his editors, all working under a deadline, simply misperceived the correct statement in the Times article or draft rewrite (cf. Mahoney, 71 NY2d at 40). Certainly, there is no evidence that any Post employee deliberately avoided consulting the Times article so as to publish a more sensational, albeit concocted, story with an untarnished mental state (cf. Harte-Hanks, 491 US at 690-693 [along with other circumstantial evidence, newspaper’s failure to interview key witness or to listen to available tape recordings that would verify or refute account of newspaper’s source constituted an actionable “purposeful avoidance of the truth” (id. at 692)]).

Third, to the extent that plaintiff contends that the Post’s editors were motivated to “spice . . . up” articles with invented facts in order to increase the newspaper’s paid circulation, the December 7 rewrite would be a particularly poor vehicle for advancing that goal. The rewrite was inconspicuously placed on page 24 of the defendant’s publication, where it appeared dwarfed in size by an adjacent, large-scale advertisement for home furnishings and was positioned above a blotter-style column entitled “Weird but true.” In this context, it is highly unlikely that any member of the purchasing public would have chosen to buy the Post based on the complained-of rewrite. Even within the rewrite itself, the sentence relevant to plaintiffs licensure did not appear in the lead paragraph but was buried in the article’s sixth of eight paragraphs. In fact, the lead paragraph correctly stated that plaintiff was “under investigation.” Finally, unlike in Prozeralik, when plaintiff’s counsel confronted the Post with the inaccuracy of its headline and sentence, the paper issued a full retraction within plaintiffs requested time frame.

In sum, a reasonable jury confronted with these facts and circumstances could not find with convincing clarity that defendant’s erroneous statements were published with actual malice. Rather, the record bespeaks nonactionable mistake or negligence. Thus, a grant of summary judgment in defendant’s favor was appropriate.

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

Pigott, J. (dissenting). I respectfully dissent. The undisputed facts are relatively simple: The New York Post took a factually-accurate Los Angeles Times article, which stated that the California Medical Board had “moved to revoke” plaintiffs license, and rewrote the article to falsely state, in the headline and in the body of the article, that plaintiffs license had been “pulled” and “revoked.” In my view, these facts raise, at the very least, a question of fact as to whether the Post acted with “actual malice.”

I.

On December 7, 2003, the Los Angeles Times (LA Times) ran a 98-paragraph story entitled: “Harsh Reality of ‘Osbournes’ No Laughing Matter.” The article stated that “[t]he state medical board last week moved to revoke Kipper’s license, accusing him of gross negligence in his treatment of other patients.”

The Post obtained the LA Times story from the wire service and edited it from 98 paragraphs to eight. Apparently not satisfied with the headline, the Post changed it to falsely read: “Ozzy’s Rx doc’s license pulled" and reported: “Last week, the state medical board revoked Kipper’s license, accusing him of gross negligence in his treatment of other patients, according to the Los Angeles Times” (emphasis supplied).

Plaintiffs attorneys wrote to the Post and advised it that the article stating that plaintiffs medical license had been revoked was “false and defamatory” and “published with reckless disregard for the truth.” The letter demanded that the Post publish “a clear and unequivocal retraction of the . . . falsehoods . . . in a manner, size and placement comparable to those of the defamatory article.”

The Post subsequently printed a correction on page 26. The correction was in incredibly small print, situated among mostly ads, and stated as follows:

“Correction
“On Dec. 7, 2003, The Post reported that, according to The Los Angeles Times, Dr. David Kipper, Ozzy Osbo[u]rne’s doctor, had his license revoked by the California Medical Board. The Post has since learned that the board is still investigating Kipper’s alleged practice of overprescribing drugs to celebrity patients and has moved to revoke his license, although no action has as yet been taken.”

A fair reading of this “correction” is that the LA Times had made a mistake and further investigation by the Post had ferreted out the truth, a fact the Post is pointing out in an obscure part of its newspaper.

Supreme Court held that the Post’s motion for summary judgment should be denied because it “has not presented evidence that proves, as a matter of law, that the false statements in the Article were published in good faith, the result of an inadvertent misreading or miscopying that would be considered an excusable mistake” (15 Misc 3d 1136[A], 2007 NY Slip Op 51005[U], *3). In making this determination, Supreme Court pointed to the deposition testimony of Post reporter Lyle Hasani Gittens that the Post’s editors sometimes changed articles submitted by reporters and that, when editing wire service articles, the Post reporters routinely shortened them and changed the lead paragraph “to make it more Post-like,” that is, “less boring than the Los Angeles Times.” The Appellate Division reversed and dismissed the complaint (47 AD3d 597 [2008]).

II.

In support of its contention that the record fails to contain evidence establishing actual malice with “convincing clarity,” the Post relies on remarkably foggy testimony of the very people from whom the falsity originated, its own employees. Gittens, the reporter who edited the LA Times story for publication in the Post, testified that, because it came from the wire service, the LA Times article had likely already been fact-checked. Rather than exonerate the Post, this testimony underscores the significance of its conduct in printing false information, since defendant admits that the LA Times article was factually accurate before the Post edited it. Notwithstanding this fact, Git-tens claims that he does not know how the false statement about plaintiffs license having been revoked found its way into the article, nor does he recall editing the story to include that information. Todd Venezia, a reporter charged with editing Gittens’s version of the story, testified that he occasionally edits the stories of other reporters but that he does not recall the specifics of the article at issue here.

The majority takes the position that based on the aforementioned testimony, there is a “lack of concrete proof” as to whether the Post “seriously doubted the truth of the complained-of statements or was highly aware that they were incorrect prior to publication” (majority op at 356). But the issue is not whether the Post doubted the truth or was aware of an incorrect statement here; it is conceded that the Post created the statements that, as the majority notes, are false and defamatory. A defendant should not be allowed to point to alleged deficiencies in the record that are the product of its employees’ claimed inability to recall the circumstances surrounding the editing of the article and be awarded summary judgment. The majority correctly observes, “The circumstances surrounding the Post’s erroneous statement are not entirely clear” (majority op at 351). But it is that lack of clarity upon which the majority relies in concluding that the record is devoid of any evidence that would permit a jury to find that the Post published the article with actual malice. In my view, the fact that defendant took a factually-accurate article and edited it to reflect something completely untrue constitutes sufficient evidence from which a jury could infer that defendant “ ‘in fact entertained serious doubts as to the truth of [its] publication,’ St. Amant v. Thompson, 390 U. S. 727, 731 (1968), or acted with a ‘high degree of awareness of . . . probable falsity,’ Garrison v. Louisiana, 379 U. S. 64, 74 (1964)” (Masson v New Yorker Magazine, Inc., 501 US 496, 510 [1991]).

The majority asserts that an inquiry into such matters is a subjective one that requires this Court to focus on the state of mind of the author at the time of the publication (majority op at 354-355). But this Court has held that to “conclude that no prima facie case was even presented [against a defendant] because its employees might have held an untarnished subjective state of mind” is not compelled by federal or state jurisprudence, and has cautioned that such an “approach and analysis . . . would erect a logically impossible test which, by its practical application of governing precedents, would inevitably result in no defamation case ever qualifying for jury resolution” (Prozeralik v Capital Cities Communications, 82 NY2d 466, 478 [1993]). Essentially, the majority’s opinion does what this Court sought to prohibit in Prozeralik: it places the disposition of defamation cases “into the unilateral control of defendant[ ]” (id.).

In my view, our Court’s decision in Prozeralik compels the denial of the Post’s motion for summary judgment. There, the defendant’s news and radio casts identified the plaintiff—a public figure—as the victim of an abduction, and reported that the FBI was investigating whether said abduction was the result of the plaintiff having owed money to a criminal enterprise. There was a dispute, however, between the FBI and the defendant’s reporter as to whether the FBI confirmed the plaintiff as the victim. Just hours after defendant last ran the inaccurate story, it was confirmed that the plaintiff was not the victim of the abduction, and the plaintiff subsequently filed a defamation suit against the defendant, eventually obtaining a favorable verdict.

This Court refused to grant the defendant’s motion to dismiss the plaintiffs case, holding that the plaintiff met his “evidentiary burden of establishing actual malice sufficient to allow the jury ... to find that defendant acted with a high degree of awareness of ‘probable falsity’ or entertained ‘serious doubts’ as to the truth of the broadcasts,” stating that the plaintiff “adduced cogent direct evidence from which a jury could have inferred that defendant knew or suspected that the [plaintiff] was not the victim” (Prozeralik, 82 NY2d at 475 [emphasis supplied and citation omitted]). Such evidence included proof that a competing news station ran a story the previous evening identifying someone other than the plaintiff as the victim, speculation by the defendant’s employees that the plaintiff was in fact the victim, and the disagreement between the FBI and the defendant’s reporter as to whether the FBI told the reporter that he could “go with [the plaintiffs] name” if the FBI did not call the reporter back (id. at 475-476).

Here, as in Prozeralik, another media outlet reported a factually-accurate account of events the day before the false information was published by the Post. In my view, the conduct of the Post in this case is more egregious than the conduct of the defendant in Prozeralik because there is no dispute between the Post and the LA Times concerning the accuracy of the original article. Unlike the disagreement between the FBI and the reporter in Prozeralik, it is undisputed that plaintiffs license had not been revoked, and the Post concedes that those parts of the story concerning the revocation were in fact false. Moreover, it can be inferred from the mere fact that the substance of the LA Times article was changed—without explanation—to erroneously reflect that plaintiffs license had been revoked that the Post entertained serious doubts as to the truthfulness of the article. Unlike the reporters in Prozeralik who speculated that the plaintiff was the victim, the Post knew or should have known from the body of the LA Times article that plaintiffs license had not been revoked.

As the majority states, proof of “[mjere negligence does not suffice” to establish actual malice by clear and convincing evidence (see Masson, 501 US at 510). Whether defendant acted with mere negligence or actual malice, under the circumstances of this case, should be submitted to a jury, because an inference can be drawn from the facts in the record, with convincing clarity, that the Post acted with actual malice in publishing the article (i.e., it either knew that it was false or acted with reckless disregard of whether it was false or not). Rather than allowing a jury to make that determination, however, the majority relies on the inability of the Post’s employees to recall exactly how the false publication made it to print, and then concludes that the erroneous statements must have been published as a result of mere mistake or negligence (majority op at 359). In my view, this is error and deprives plaintiff of an opportunity to have a jury evaluate the credibility of the Post’s employees. Therefore, I would reverse the order of the Appellate Division and reinstate plaintiffs complaint.

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

Order affirmed, with costs.

      . Because Supreme Court dismissed claims brought on behalf of Dr. Kipper’s professional corporation, all references to “plaintiff’ herein are to Kipper in his individual capacity.

      . At his deposition, Gittens stated that the original draft might have been “purged” from one of the Post’s electronic file directories.

      . The actual malice standard applies here because, as Supreme Court held, plaintiff is “unquestionably a public figure” (2007 NY Slip Op 51005[U] at *2) due to the extensive media coverage of his detoxification practice, his more than 100 television appearances as a medical expert, and his roles as a doctor in several films (see James v Gannett Co., 40 NY2d 415, 422 [1976]).

      . The sort of actual malice required under New York Times “should not be confused, with the concept of malice as an evil intent or a motive arising from spite or ill will” (see Masson, 501 US at 510). While such motivations are not irrelevant to the actual malice inquiry (see 2 Smolla and Nimmer On Freedom of Speech § 23:3, at 23-17 [2008] [hereinafter Smolla and Nimmer]), there is no evidence in this record that defendant was motivated by an intent to injure plaintiff.

      . The dissent does not quarrel with this point (see dissenting op at 362). Nor could it (see 2 Smolla and Nimmer § 23:3, at 23-15 [noting that the U.S. Supreme Court has “repeatedly emphasized the subjective nature of the actual malice standard”]). Recognizing the rule that the actual malice inquiry necessarily entails consideration of a defendant’s subjective mental state does not, however, inevitably place the outcome of a libel case within a defendant’s “unilateral control” (see dissenting op at 363 [internal quotation marks omitted]). That result would only obtain if a libel defendant’s mere assertion of good faith publication, despite clear and convincing circumstantial evidence of actual malice, would suffice to permit summary judgment. As the dissent correctly points out, this Court has never sanctioned such a rigid rule (see Prozeralik v Capital Cities Communications, 82 NY2d 466, 478 [1993]). And we do not do so here. Instead, we acknowledge that “mere protestations of good faith by a defendant do not preclude establishing actual malice through other inferential or circumstantial proof’ (see Smolla and Nimmer § 23:3, at 23-18). But we conclude that the facts and circumstances adduced by plaintiff in this case could not clearly and convincingly prove actual malice to the satisfaction of a reasonable jury.

      . In this connection, the U.S. Supreme Court has concluded that a defendant’s profit motive in publishing allegedly false and defamatory material does not “suffice to prove actual malice” (see Harte-Hanks, 491 US at 667).

      . According to the dissent, the Post’s actions in this case are “more egregious” than those at issue in Prozeralik because there, although an accurate report was broadcast before defendant’s erroneous one, a reporter disputed the FBI spokesperson’s claim that the plaintiff’s identity had not been confirmed before the defendant’s inaccurate report was aired (see dissenting op at 363). But “a highly and significantly discrete feature” identified by this Court in refusing to dismiss for lack of the requisite proof of actual malice was that “plaintiff’s name was initially injected randomly by defendant’s own employees merely because he happened to be a Niagara restaurateur” (see Prozeralik, 82 NY2d at 477). Moreover, the FBI employee’s testimony, “categorically] ” denying the purported confirmation, provided “[d]irect evidence” that would permit a jury to infer that the defendant “ ‘knew or suspected’ ” that its statement was false (see id. at 477). There is simply no indication in Prozeralik that the presence of an accurate news report, contradicting defendant’s, would have been enough to permit jury resolution of the actual malice question. It was simply one factor that served to corroborate other record evidence that supported an inference of actual malice (see id. at 477-478).
      Here, plaintiffs license controversy was a matter of public knowledge prior to publication of the Post rewrite. And there is not even circumstantial, let alone “direct,” evidence which could clearly and convincingly establish that defendant’s inaccurate rewrite was published with actual malice. The relevant evidence is simply that the Los Angeles Times article was correct, that—for some unexplained reason—defendant’s rewrite was not, and that defendant usually makes certain stylistic edits in the course of preparing a rewritten wire service story for publication in its newspaper. This is not enough.

      . Unlike the retraction in Prozeralik, the Post’s “Correction,” which was located in a portion of the paper similar to that where the December 7 rewrite was placed, does not purport to be based on the Post’s “independent investigation” (compare dissenting op at 361, with Prozeralik, 82 NY2d at 471). Rather, it accurately states that the Post subsequently learned of its error after attributing an erroneous report to the Los Angeles Times.

      . Contrary to the dissent’s assertion, we do not “conclude[ ] that the erroneous statements must have been published as a result of mere mistake or negligence” (see dissenting op at 364). Our holding is limited to what the record reveals. It was plaintiffs burden to demonstrate that a reasonable jury assessing this evidence could find actual malice by clear and convincing evidence. He has failed to do so.
      The dissent would “infer] ]” actual malice from the Post’s access to the accurate Los Angeles Times article, its inability to explain how its error occurred, and from the affidavit of a “journalism expert,” opining that “no rational journalist could have” made the same mistake that the Post did (see id. at 364 and n *). At most, this constitutes evidence of the discrete libel element of falsity, which is uncontested here, and of a failure to adhere to some objectively reasonable standard of reporting, which, standing alone, does not constitute clear and convincing evidence of actual malice.

       It is important to note that plaintiff did not stand mute in the face of defendant’s motion for summary judgment, but submitted, among other things, the affidavit of a journalism expert who averred that no rational journalist could have confused the meaning of the LA Times article with the meaning of the Post article and the only inference that could be drawn from that alleged mix-up (and the defamatory headline) was that the action was intentional.


author: Chief Judge Lippman.

text:
    [909 NE2d 559, 881 NYS2d 637]
    The People of the State of New York, Respondent-Appellant, v Julio Borrell, Also Known as Julio Cesar Borrell, Appellant-Respondent.
    Argued March 26, 2009;
    decided May 5, 2009

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Robert C. Newman, William D. Gibney and Steven Banks of counsel), for appellant-respondent.
    I. The Appellate Division’s sentence modification was barred by section 430.10 of the Criminal Procedure Law. (People v Yannicelli, 40 NY2d 598; People v Adkinson, 88 NY2d 561; People v Richardson, 100 NY2d 847; People v Parks, 95 NY2d 811; People v Romain, 288 AD2d 242, 98 NY2d 640; People v Garcia, 93 NY2d 42; People v Carpenter, 19 AD3d 730, 5 NY3d 804; People v Remelt, 269 AD2d 815, 95 NY2d 870.) II. The Appellate Division’s remedial powers do not extend to sentence modifications which would violate CPL 430.10 if they were made by a trial court. (People v Junco, 43 AD2d 266, 35 NY2d 419; People v Ramirez, 89 NY2d 444; People v LaSalle, 95 NY2d 827; People v DeValle, 94 NY2d 870; People v Sparber, 10 NY3d 457; People v Richardson, 100 NY2d 847; People v Adkinson, 88 NY2d 561.) III. The modification of appellant’s sentences, so as to make the sentence under count six run consecutively to the remaining sentences except the sentence under count three, is contrary to the Double Jeopardy Clause of the United States Constitution. (People v Yannicelli, 40 NY2d 598; North Carolina v Pearce, 395 US 711; People v Losicco, 181 Misc 2d 860, 276 AD2d 565, 96 NY2d 802; People v Laureano, 87 NY2d 640; Ex parte Lange, 18 Wall [85 US] 163; People v Williams, 87 NY2d 1014; United States v Earley, 816 F2d 1428.)

      Richard A. Brown, District Attorney, Kew Gardens (Edward D. Saslaw and Gary Fidel of counsel), for respondent-appellant.
    I. Since defendant received the effective assistance of appellate counsel, coram nobis was unwarranted. (People v Bachert, 69 NY2d 593; Matter of Lyons v Goldstein, 290 NY 19; Simpson v Loehmann, 21 NY2d 990; People v Robles, 203 AD2d 172, 86 NY2d 763; People v Stultz, 2 NY3d 277; People v Turner, 5 NY3d 476; People v Benevento, 91 NY2d 708; People v Ford, 86 NY2d 397; People v Flores, 84 NY2d 184; Evitts v Lucey, 469 US 387.) II. Having sought coram nobis, defendant may not appeal from the order granting his application nor may he object that the resulting resentence violated the statutory prohibition against changing a sentence after defendant has commenced serving it. (People v Bachert, 69 NY2d 593; People v Marsicoveteri, 79 NY2d 913; People v Tramell, 77 NY2d 893; People v Gersewitz, 294 NY 163; People v Stultz, 2 NY3d 277; People v Stevens, 91 NY2d 270; People v Hernandez, 98 NY2d 8; People v Laing, 79 NY2d 166; People v Nieves, 2 NY3d 310; People v Bautista, 7 NY3d 838.)
   OPINION OF THE COURT

Chief Judge Lippman.

Before us, by leave of a Judge of this Court, are appeals from an Appellate Division order granting defendant’s petition for a writ of error coram nobis. The petition alleges that defendant, on consolidated appeals from two judgments convicting him of robbery and related crimes, was not afforded effective assistance of counsel. Although the Appellate Division made no express finding as to the manner in which defendant’s appellate representation had been deficient, it would appear that it faulted counsel for failing to raise the issue of whether consecutive sentences had been properly imposed with respect to two counts of a 14-count Queens County indictment, both of which counts charged defendant with first degree robbery based on events which transpired in close succession during the armed robbery of a bar and its patrons on May 14, 1994. The Court’s decision, however, said no more upon the issue than that the sentences on the two counts should have been concurrent since the underlying convictions arose from the same transaction (49 AD3d 890, 892-893 [2d Dept 2008]). But the dispositive question on this coram nobis application was not whether the consecutive sentences had been in error, but whether the failure of appellate counsel to raise the issue of the sentences’ legality deprived defendant of the advocacy to which he was constitutionally entitled.

It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective assistance of appellate counsel (see People v Stultz, 2 NY3d 277, 281-282 [2004]). In Stultz, we held that the “meaningful representation” standard, announced in People v Baldi in the context of evaluating the constitutional adequacy of trial representation (54 NY2d 137, 146-147 [1981]), applies as well to claims of ineffective assistance of appellate counsel (see Stultz, 2 NY3d at 284), and that appellate counsel provides meaningful representation when he or she displays “a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument” (id. at 285).

The essential inquiry in assessing the constitutional adequacy of appellate representation is, then, not whether a better result might have been achieved, but whether, viewed objectively, counsel’s actions are consistent with those of a reasonably competent appellate attorney (see People v Satterfield, 66 NY2d 796, 799 [1985]). To be meaningful, appellate representation need not be perfect, and representation may be meaningful even where appellate lawyers have failed to brief potentially meritorious issues (see Stultz, 2 NY3d at 285).

We have recognized that this standard is not stringent— that it is in fact “undemanding” (see People v Turner, 5 NY3d 476, 482 [2005])—and, in applying it, we have often tolerated errors by counsel where the overall representation was nonetheless capable of characterization as “meaningful” (see e.g. People v Flores, 84 NY2d 184 [1994]). While there are rare cases in which a single substantial error is sufficiently “ ‘egregious and prejudicial’ as to deprive a defendant of his constitutional right” to effective representation (Turner, 5 NY3d at 480), this is not such a case.

In Turner, our determination that coram nobis relief was appropriate turned upon appellate counsel’s failure to argue that trial counsel had been ineffective for failing to raise a “clear-cut and completely dispositive” statute of limitations defense {id. at 481). Here, by contrast, the argument not made depends upon an analysis of a complex, continuous transaction and the overlapping elements of the nine counts on which defendant was ultimately convicted. The argument is by no means so “clear-cut” that it “should have been apparent to any reasonable appellate counsel” {id. at 483).

Nor is the consequence of appellate counsel’s failure to make the sentencing argument clear, even at this late juncture. While we have no occasion to reach the merits of the argument on this appeal, we note that it has to this point been considered by the Appellate Division twice in the coram nobis context with evidently differing outcomes (compare 39 AD3d 871 [2d Dept 2007], with 49 AD3d 890 [2d Dept 2008]), and has been advanced unsuccessfully on a CPL 440.20 motion from which, apparently, no appeal was taken. Although this peculiar and tortuous history is not dispositive of the argument’s ultimate merit, it is indicative of its far from clear prospects. Counsel was not ineffective for failing to raise an issue of such uncertain efficacy on the appeal.

This is particularly the case in light of defendant’s failure “to demonstrate the absence of [any] strategic or other legitimate explanations” for a decision not to brief the issue (see People v Rivera, 71 NY2d 705, 709 [1988]). Appellate counsel could have made the tactical choice to forgo raising the sentencing issue to concentrate his efforts on the other issues (see Turner, 5 NY3d at 485). Notably, appellate counsel was assigned on the appeal to challenge not one, but two judgments of conviction against defendant, each based on a separate incident and each convicting defendant of numerous crimes. Counsel briefed six issues, among them that defendant’s motion to suppress evidence seized from his apartment and vehicle had been erroneously denied, that defendant’s wife should not have been permitted to testify against him, and that defendant should not have been compelled to appear for an in-court identification procedure. These points were supported with appropriate authority and were, in part, successful in obtaining relief: convictions against defendant on seven counts were reversed upon the argued ground that certain inculpatory evidence had been unlawfully seized and should have been suppressed. Given the breadth and substantiality of the issues raised on the consolidated appeal, we cannot say that there could have been no legitimate explanation for counsel to forgo raising the sentencing issue (cf. id.).

While it may ultimately be determined that defendant should have been sentenced concurrently, as he now contends, and that the representation at issue would have been more efficacious had the issue been raised on the appeal, the relevant and, indeed, dispositive threshold issue on this coram nobis application is not whether defendant’s representation could have been better but whether it was, on the whole, constitutionally adequate. This less exacting standard was met by counsel on the appeal.

Accordingly, on the People’s appeal, the order of the Appellate Division should be reversed and the defendant’s application for a writ of error coram nobis should be denied. Defendant’s appeal should be dismissed as academic.

Pigott, J. (dissenting). I respectfully dissent. Although the Appellate Division may not have expressly stated its reason for granting defendant’s application for a writ of coram nobis, the court’s order reveals that, at the very least, it viewed appellate counsel as ineffective for failing to challenge the propriety of defendant’s sentences. Indeed, the court explicitly held that the sentences on two counts should not have run consecutively since the underlying convictions arose from the same transaction. In my view, it cannot be said that it was error for the court to grant defendant’s application on this ground, as appellate courts routinely grant coram nobis applications when appellate counsel fails to raise an issue on direct appeal that the court concludes may have merit (see e.g. People v Griffin, 59 AD3d 1106 [4th Dept 2009]; People v Rivera, 52 AD3d 1290 [4th Dept 2008]; People v Johnson, 43 AD3d 1453 [4th Dept 2007]; People v Antoniou, 52 AD3d 938 [3d Dept 2008]; People v Smith, 21 AD3d 599 [3d Dept 2005]). We should not discourage this practice.

While in People v Turner (5 NY3d 476, 480 [2005]), we held that it is a “rare” occasion where a single failing amounts to ineffective assistance of counsel, there is no basis for finding that the alleged error here is not such a case. Notably, had appellate counsel successfully raised the sentencing error, the result may have led to a reduction in defendant’s incarceration time. Additionally, a review of the record reveals that appellate counsel’s performance, viewed in its totality, was less than meaningful. Appellate counsel’s brief, which as noted by the majority was for two separate felony indictments and convictions (majority op at 369), was only 37 pages long. Contrary to the majority’s view (majority op at 370), I don’t think it can be said that appellate counsel strategically decided to forgo briefing the sentencing issue to instead brief others as there was ample opportunity for appellate counsel to raise all of the issues. Furthermore, although appellate counsel prevailed on two of the issues raised in the brief, those issues were only in respect to one of the two judgments of conviction and importantly, did not pertain to the convictions at issue on this appeal. Finally, despite the multiple convictions involved and severity of the prison term faced by defendant, appellate counsel chose to submit and not to argue before the tribunal. Collectively, these errors, in my view, could justify an appellate court granting a writ of error coram nobis as the court did here.

Although I believe the Appellate Division was correct in granting defendant’s application, in my view, the court erred in the relief it then granted. The court modified defendant’s sentence by correcting the alleged sentencing error but went further and modified the sentence by directing that the concurrent sentences imposed on two counts run consecutively to the sentences imposed on the remaining counts of that indictment. What is most troubling is that the Appellate Division was without authority to alter the validly imposed portion of defendant’s sentence (see People v Yannicelli, 40 NY2d 598, 602 [1976]). The proper remedy for the matter was to assign new counsel and consider the appeal de novo (see People v Vasquez, 70 NY2d 1 [1987]; People v Casiano, 67 NY2d 906 [1986]).

Consequently, on the People’s appeal, I would affirm, and on the defendant’s appeal, I would reverse and remit to the Appellate Division for further proceedings in accordance with this opinion.

Judges Ciparick, Graffeo, Read, Smith and Jones concur with Chief Judge Lippman; Judge Pigott dissents and votes to affirm on the People’s appeal and reverse and remit to the Appellate Division on the defendant’s appeal in a separate opinion.

On the People’s appeal, order reversed and defendant’s application for a writ of error coram nobis denied.


author: Pigott, J.

text:
    [909 NE2d 563, 881 NYS2d 641]
    Samuel Passante et al., Appellants, v Agway Consumer Products, Inc., Doing Business as G & P Fresh Pac, Defendant, and Mullen Industrial Handling Corp. et al., Respondents.
    Argued March 25, 2009;
    decided May 5, 2009

      POINTS OF COUNSEL

      Mackenzie Hughes LLP, Syracuse (W Bradley Hunt and Arthur W. Wentlandt of counsel), for appellants.
    I. There are issues of fact as to whether the dock leveler was defective because it was sold without the Dok-Lok safety system. (Sprung v MTR Ravensburg, 99 NY2d 468; Gebo v Black Clawson Co., 92 NY2d 387; Scarangella v Thomas Built Buses, 93 NY2d 655; Ferrante v American Lung Assn., 90 NY2d 623; Rite-Hite Corp. v Kelley Co., Inc., 629 F Supp 1042, 774 F Supp 1514; Rosado v Proctor & Schwartz, 66 NY2d 21.) II. There are issues of fact as to whether the dock leveler was defective because it was designed with a 150-pound walk-down weight and sold without any instructions regarding how that walk-down weight could be adjusted so that the dock leveler could safely be used by a person—such as Samuel Passante—weighing less than 150 pounds. (Gebo v Black Clawson Co., 92 NY2d 387; Caprara v Chrysler Corp., 52 NY2d 114; Ferrante v American Lung Assn., 90 NY2d 623; Cover v Cohen, 61 NY2d 261; Dunn v Black Clawson Co., Inc., 38 AD3d 1212.)

      Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo ((Jeffrey F. Baase of counsel), for Mullen Industrial Handling Corp., respondent.
    I. The Fourth Department’s holding that Mullen Industrial Handling Corp. established its entitlement to summary judgment on plaintiff’s design defect cause of action should be affirmed. (Scarangella v Thomas Built Buses, 93 NY2d 655; Rosado v Proctor & Schwartz, 66 NY2d 21.) II. The Appellate Division’s dismissal of plaintiff’s failure to warn cause of action should be affirmed: plaintiff was well aware of the hazards of walking on the dock leveler’s lip and chose to ignore both Mullen Industrial Handling Corp.’s instructions and printed warnings. (Liriano v Hobart Corp., 92 NY2d 232; Banks v Makita, U.S.A., 226 AD2d 659; Pigliavento v Tyler Equip. Corp., 248 AD2d 840; Baptiste v Northfield Foundry & Mach. Co., 184 AD2d 841; Felle v W.W. Grainger, Inc., 302 AD2d 971; Lombard v Centrico, Inc., 161 AD2d 1071; Neri v John Deere

      Co., 211 AD2d 915; Johnson v Johnson Chem. Co., 183 AD2d 64; Romano v Stanley, 90 NY2d 444; Amatulli v Delhi Constr. Corp., 77 NY2d 525.)

      Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan and Mark J. Schulte of counsel), for Rite-Hite Corporation, respondent.
    I. The Fourth Department properly granted summary judgment on the defective design claim. (Scarangella v Thomas Built Buses, 93 NY2d 655; Biss v Tenneco, Inc., 64 AD2d 204, 46 NY2d 711; Geddes v Crown Equip. Corp., 273 AD2d 904; Pigliavento v Tyler Equip. Corp., 248 AD2d 840; Rosado v Proctor & Schwartz, 66 NY2d 21; Rite-Hite Corp. v Kelley Co., Inc., 629 F Supp 1042; Voss v Black & Decker Mfg. Co., 59 NY2d 102.) II. The Appellate Division properly dismissed plaintiffs’ claim based on an alleged failure to provide an adequate warning. (Liriano v Hobart Corp., 92 NY2d 232; Lonigro v TDC Elecs., 215 AD2d 534; Oza v Sinatra, 176 AD2d 926; Ruggles v Werner Co., 203 AD2d 913; Nieves v Bliss Co., 231 AD2d 697; Bigness v Powell Elecs., 209 AD2d 984; Fallon v Hannay & Son, 153 AD2d 95; Merritt v Raven Co., 271 AD2d 859; Preston v Peter Luger Enters., Inc., 51 AD3d 1322; Romano v Stanley, 90 NY2d 444.)
   OPINION OF THE COURT

Pigott, J.

Samuel Passante, an employee of Agway Consumer Products, Inc., doing business as G & P Fresh Pac, was injured while using a mechanical dock leveler at the company’s warehouse in DeWitt. The dock leveler was manufactured by Rite-Hite Corporation and sold to G & P by Mullen Industrial Handling Corp. The dock leveler at issue here is a mechanical platform designed to provide a ramp between a loading dock and the bed of a truck or tractor trailer. When not in use, the dock leveler is flat and part of the loading dock floor. It rises to match the height of the load bed, so as to enable forklifts or pallet trucks to move in and out of the trailer.

Once activated, the platform of the leveler swings up, and a hinged lip at its edge also moves up—from a pendent position perpendicular to the platform to a position in which it forms an extension of the platform—in order to meet the trailer bed. The operator then walks towards the edge of the leveler platform and, if his weight is sufficient, forces the platform down—toward the trailer bed—so that the lip catches the trailer floor. This is known as “walking down” the leveler. Once the hinged lip has engaged the bed of the trailer, it provides a transition between the loading dock floor and the trailer bed. However, the lip is designed to rotate back into its pendent position if it is not supported, and the parties do not dispute that a person standing on an unsupported lip will fall. A Rite-Hite instruction sheet was posted on a wall in the loading dock area, which, among other things, warned operators not to walk on the lip of a dock leveler when “walking down” the leveler.

According to Rite-Hite’s design engineer, the leveler here was designed for a “150 pound walk down,” meaning that a person who weighs about 150 pounds would be able to bring the leveler platform down to the requisite height by simply walking to the edge of the platform. Passante, who weighed 140 pounds, testified that he was not heavy enough to force the leveler platform down to the trailer bed without standing on the hinged lip. Moreover, Joseph Panebianco, the G & P assistant facility manager and a heavier man, testified that he too was unable to “walk down” the leveler successfully without standing on the lip.

Mullen had offered to sell G & P a system manufactured by Rite-Hite, called “Dok-Lok,” that secures a tractor trailer to the loading dock and includes a warning system so that workers know when they can safely enter the trailer and drivers know when they can safely pull away. G & P declined to buy a Dok-Lok system, instead relying on wheel chocks—wedges placed beneath or behind a truck’s wheels to prevent movement. Panebianco testified that he decided against Dok-Lok partly because it would require having an operator and also because a driver who “doesn’t use his head and drives off’ while a Dok-Lok is engaged would in his opinion tear the bumper from his trailer.

Passante’s accident occurred when he was “walking down” the dock leveler in order to get the platform to rest on a trailer. He was standing on the hinged lip of the leveler as it made contact with the trailer bed. Unbeknownst to Passante, the driver of the tractor trailer had not completed the process of parking, and no chocks were in place. Passante remained standing on the hinged lip for a “split second” after completing the “walk down.” At that moment, the driver began to move the tractor trailer forward and, without the support of the trailer bed, the lip fell to its pendent position, causing Passante to fall onto a cement and steel grate, sustaining injury.

Passante and his wife commenced this action against G & P Rite-Hite and Mullen, alleging, among other things, that the dock leveler Mullen sold to G & P was defectively designed by Rite-Hite because it lacked equipment restraining the tractor trailer or securing it to the loading dock while the dock leveler was in use, and lacked a system to warn the operator when it was safe to enter the trailer or, in the alternative, notifying the driver that a dock leveler was in position. The Passantes also allege that Mullen negligently failed to warn G & P of the danger that movement of a tractor trailer during the operation of a dock leveler would cause it to collapse. The complaint also alleged manufacturing defects, negligent installation and maintenance, and breach of warranty. Rite-Hite cross-claimed against Mullen.

Following discovery, Mullen moved for summary judgment, attaching deposition transcripts and various other documents, including a Rite-Hite sales brochure describing its Dok-Lok trailer restraint systems. The brochure vividly described the dangers faced by the operators of dock levelers when tractor trailers are unsecured. Rite-Hite described the space between loading dock and trailer bed—the space bridged by its dock levelers—as a warehouse’s “Danger Zone.”

“Every time a lift truck impacts the ramp, crosses [the Danger] Zone and enters a trailer, the trailer can inch forward. When it moves too far, or departs prematurely, the lift truck and driver can tumble into the gap with disastrous results. . . .
“The impact of a lift truck moving in and out of the trailer during loading operations causes the trailer to inch forward slightly—even with the brakes set and the wheels chocked. When the trailer moves beyond the reach of the leveler’s lip, the lip falls, leaving a large gap. The lift truck and operator may then topple off the leveler or trailer and onto the driveway. . . .
“[In another common scenario] the truck driver, assuming loading operations are completed, pulls away without warning. This unexpected departure from the dock can cause the forklift and operator to be thrown onto the driveway.”

The brochure noted that wheel chocks were ineffective and expensive, and recommended one of its Dok-Lok systems to ensure the safety of dock leveler operators.

In opposition to Mullen’s motion, plaintiffs submitted the affidavits of a mechanical engineer and an industrial engineer. The mechanical engineer, noting the testimony from Passante and Panebianco to the effect that they could not get the dock leveler to operate without standing on its lip, had inspected the dock leveler involved in the accident. Even with a body weight of 180 pounds, the mechanical engineer was unable to urge the dock leveler to a horizontal position. The engineer concluded that, at 140 pounds, Passante would not be able to impel the dock leveler down simply by “walking down” to the edge of its platform. “As a result,” he observed, “it was necessary for Samuel Passante, as well as for Joseph Pan[e]bianco, to position themselves on the extended lip in order for the equipment to achieve its operational goals.” The mechanical engineer, noting that “the unscheduled departure of a tractor trailer is a known risk in the materials handling industry,” concluded that “with a reasonable degree of engineering certainty, the equipment created an unreasonable risk of harm to the operator both from falls from the collapsing lip, as well as from falls caused by the unscheduled departures of tractor trailers.”

The industrial engineer’s opinion was that the

“warnings positioned on the wall, remote from the pull-chain which initiates the operation of the mechanical dock leveler in question, would not effectively remind the operator of the dangers associated with walking on the extended lip of the equipment. . . .
“To properly warn the operator, ... a warning medallion connected to the links of the pull-chain directly at the point of operation was necessary. . . .
“Additionally, . . . some type of safety striping or demarcation of the lip itself was necessary to fully advise the operator as to the specific dangers involved in the steps he was taking during the operation of the equipment, to wit approaching the end of the platform and stepping onto the hinged lip itself.”

The industrial engineer also noted that neither Rite-Hite nor Mullen had provided G & P with instructions for adjusting the dock leveler for operators of different body weights or with a warning that “operation outside of the parameters of 150 pound nominal walk down weight [i.e. the inability of someone weighing approximately 150 pounds to ‘walk down’ the dock leveler without standing on the lip] indicates that the equipment is not operating properly.” The industrial engineer concluded “with a reasonable degree of engineering certainty, this lack of properly placed warnings combined with the complete lack of warnings or instructions to the proper operating capacity of the equipment, creates an unreasonable risk of harm to the operator.”

Supreme Court denied Mullen’s motion, finding questions of fact concerning defective design and failure to warn. The Appellate Division reversed, dismissing the Passantes’ complaint as against Mullen in its entirety (294 AD2d 831 [2002]). Two dissenting Justices would have held that the defective design and failure to warn claims survived summary judgment.

After the Appellate Division’s decision, Mullen moved for summary judgment dismissing Rite-Hite’s cross claims and RiteHite sought summary judgment dismissing plaintiffs’ complaint. Supreme Court dismissed Rite-Hite’s cross claims without prejudice on condition that Rite-Hite “may reassert its cross-claims in the event of a reversal or modification in plaintiffs favor” of the Appellate Division’s order by this Court. Supreme Court also required plaintiffs to consent to judgment dismissing their action should this Court affirm the Appellate Division’s order. Plaintiffs appealed, pursuant to CPLR 5601 (d), bringing up for review the Appellate Division’s order. We now modify the judgment appealed from and the Appellate Division’s order, and reinstate the causes of action for defective design and failure to warn.

Mullen and Rite-Hite rely on our decision in Scarangella v Thomas Built Buses (93 NY2d 655 [1999]). There, as here, plaintiff argued that a product was defectively designed insofar as it did not incorporate, as standard equipment, a particular safety feature. In Scarangella, plaintiff, who was employed as a school bus driver, was injured when a school bus struck her, while being operated in reverse in a bus parking yard. The distributor that sold the bus to the defendant school bus company had offered, as an optional safety feature, an alarm that would automatically sound when a driver shifted the bus into reverse gear. The bus company chose not to buy this equipment because the alarms were noisy and the buses were parked in a yard in a residential neighborhood where noise pollution was an issue.

We held that a product that fails to incorporate safety equipment is not defective, as a matter of law,

“where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer’s use of the product. In such a case, the buyer, not the manufacturer, is in the superior position to make the risk-utility assessment, and a well-considered decision by the buyer to dispense with the optional safety equipment will excuse the manufacturer from liability.” (93 NY2d at 661.)

Because all three of the factors were present, a departure from strict liability was justified in Scarangella. First, defendant was a highly knowledgeable consumer, experienced in operating school buses and aware of the dangers and of the availability of the optional alarm (id.). Second, defendant’s buses were used in reverse only in the parking yard (i.e. where there were no school children or other nonemployee pedestrians), so that the risk of harm from the absence of a backup alarm was not substantial. Moreover, the bus drivers were instructed to use caution and to sound their regular horns when reversing. (93 NY2d at 661-662.) Third, the bus company, rather than the distributor,

“was in a position to assess the efficacy of alternative safety measures in its operational rules and training of drivers. The buyer had the ability to understand and weigh the significance of costs associated with noise pollution and neighborhood relations, given the particular suburban location of the parking lot, against the anticipated, foreseeable risks of operating buses in a parking lot without a back-up alarm device or safeguard.” (Id. at 662.)

Because all three factors were present and plaintiff created no triable issues with respect to her claim that the absence of a backup alarm was a design defect, the bus company was entitled to summary judgment as a matter of law.

Here, it is conceded that the first Scarangella principle is met; G & P was knowledgeable about dock levelers and knew that Dok-Lok was available as an option. However, defendants’ further reliance on Scarangella is misplaced because they have not made a prima facie showing of entitlement to judgment as a matter of law relative to the second factor.

Defendants have not shown that the dock leveler would normally be used in circumstances in which the product is not unreasonably dangerous without a trailer restraint system such as Dok-Lok. Indeed, the Rite-Hite brochure, submitted by Mullen itself in its summary judgment papers, describes, as a pervasive risk, the danger that a tractor trailer will inch forward “even with the brakes set and the wheels chocked” or be driven forward inadvertently, with the result that a dock leveler operator falls from the leveler or trailer. Moreover, defendants have not refuted—whether by expert affidavits or by deposition testimony—the opinion of the mechanical engineer that the dock leveler, because of its collapsing lip, posed an unreasonable risk of harm to its operator.

In Scarangella, the risks associated with a bus reversing were limited because the buses only reversed when they were in the parking yard and the people in the yard—mostly other bus drivers—could carry on their tasks and avoid contact with the reversing buses simply by exercising caution. There was nothing about the buses, engaged in normal reverse driving, that would make them unreasonably dangerous. By contrast, the record here supports plaintiffs’ position that a dock leveler, of the design involved here, creates a substantial risk of harm as normally used. This is because the dock leveler has a hinged lip that collapses if not supported, and yet the lip is an extension of the platform the operator must “walk down” in order to adjust the leveler to the correct height. Indeed the record evidence suggests further that operators of average weight or less must step onto the lip in order to “walk down” the leveler. If so, the dock leveler lip posed a risk to operators that could not be avoided simply by cautious operation.

We conclude that defendants have not demonstrated the absence of material issues of fact with respect to whether normal circumstances of use exist in which the dock leveler is not unreasonably dangerous without a trailer restraint system. Consequently, the second Scarangella factor is not satisfied, and the defective design cause of action should be reinstated. Having reached this conclusion, it is not necessary to discuss the third Scarangella factor.

Finally, there are triable issues of fact as to the sufficiency of the warnings concerning this equipment. An instruction sheet was posted on a wall in the loading dock area that included a warning not to walk on the lip of a dock leveler when “walking down” the leveler; and Passante was aware that the lip would begin to collapse during a “walk down” if the operator did not complete the “walk down” quickly enough. However, the instruction sheet contains no warning that it is dangerous to remain on the lip, even momentarily, after it has engaged the trailer bed. Passante himself was familiar, from a loading dock where he had worked previously, with a different design of dock leveler in which the hinged lip did not collapse. Moreover, plaintiffs submitted the affidavit of an industrial engineer who opined that the posted warning was insufficient and that a warning at the point of operation as well as striping or demarcation of the lip itself were necessary to remind the operator of the dangers of standing on the lip.

Thus, on this record, we cannot conclude as a matter of law that Passante was fully aware of the danger of standing on the dock leveler lip after it had engaged the trailer bed, or that site-of-operation warnings of the type recommended by the industrial engineer would have been superfluous. “[I]n cases where reasonable minds might disagree as to the extent of plaintiff’s knowledge of the hazard, the question is one for the jury” (Liriano v Hobart Corp., 92 NY2d 232, 241 [1998]). Therefore, the cause of action for failure to warn should also be reinstated.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, in accordance with this opinion, and, as so modified, affirmed.

Smith, J. (dissenting). In Scarangella v Thomas Built Buses (93 NY2d 655 [1999]), we held that a seller of equipment whose buyer refused to purchase an optional safety feature is, under certain conditions, immune from a claim that the product without the safety feature was defectively designed. This case is essentially a duplicate of Scarangella, and the majority has overruled Scarangella without saying so.

I

Rite-Hite manufactured, and Mullen sold, dock levelers. Rite-Hite also manufactured, and Mullen also offered for sale, a safety device known as a “Dok-Lok,” which locks a truck to the loading platform, to prevent the truck from driving or rolling away while the dock leveler is in use.

Undoubtedly, both Rite-Hite and Mullen would have been delighted to sell the Dok-Lok to plaintiff Samuel Passante’s employer, G & P or to any other customer. A Rite-Hite sales brochure, quoted by the majority (majority op at 377), recommended this safety device with the enthusiasm typical of such literature, and Mullen gave G & P quotations for three different Dok-Lok models. But even the cheapest of these models—a manual device that might not have prevented this accident—was expensive; it would have added more than 50% to the cost of the dock leveler. The automatic models would have more than doubled the cost.

G & P was not interested in buying a Dok-Lok. The G & P employee responsible for this decision explained his reasons:

“Q. Did you consider the use of dock-lock equipment at this facility?
“A. Not really, because, there again, for our type of facility, you know, I mean, it really didn’t seem to be something that works well in our type of a facility.
“Q. Why do you say that? What is the basis of your conclusion in that regard?
“A. Basically, a lot of our trucks are in and out relatively quickly, and they are quite often, my understanding with that type of equipment, you almost always have to have someone who is on the dock all the time to release—and my understanding with that type of equipment, there is an arm that comes down and catches the trailer, basically holds the trailer in. Number one, you have got to have someone, who is going to be operating that type of equipment. In our type of operation, you know, it is not feasible. And, number two, my experience with that type of equipment is that it really doesn’t hold the truck in. If the thing comes down on your ICC bumper and the driver in the truck drives off, he just drives off and wrecks his bumper. It’s been my experience, where I have seen some of this equipment, that if the driver doesn’t use his head and drives off, all he ends up doing is tearing the heck out of the back of his trailer. So, I guess, I’m not convinced that it really works well, and it certainly doesn’t seem to work well in this particular facility.”

The majority today holds that Rite-Hite and Mullen may be sued for not overruling the buyer’s objections and insisting that G & P purchase a dock leveler either with the Dok-Lok or not at all. As we held in Scarangella, this holding cannot be justified. Under circumstances like these, whether safety equipment should be bought is a decision for the buyer, not the seller and not the courts.

II

The defendant in Scarangella was a seller of school buses. It “offered buyers as an optional safety feature a back-up alarm that would automatically sound when a driver shifted the bus into reverse gear” (93 NY2d at 657). It sold several buses to the plaintiff’s employer, a bus operator, which “chose not to purchase this optional equipment” (id.). The plaintiff was injured when a bus backed into her, and claimed that the absence of the alarm was a design defect. We held that this claim could not be presented to the jury.

In an effort to lend predictability to litigation of this kind, we set out “some governing principles for cases where a plaintiff claims that a product without an optional safety feature is defectively designed because the equipment was not standard” (id. at 661). We said:

“The product is not defective where the evidence and reasonable inferences therefrom show that: (1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware that the safety feature is available; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the range of uses of the product, to balance the benefits and the risks of not having the safety device in the specifically contemplated circumstances of the buyer’s use of the product.” (Id.)

These principles require dismissal of plaintiffs’ design defect claim here. G & R as the majority concedes, was knowledgeable about dock levelers and knew that the Dok-Lok was available. It is no less true in this case than it was in Scarangella that “there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment.” And G & P was in as good a position as the buyer in Scarangella to balance benefits and risks.

According to the majority, the second Scarangella test is not met here because “ [defendants have not shown that the dock leveler would normally be used in circumstances in which the product is not unreasonably dangerous without a trailer restraint system” (majority op at 381). This is a misstatement, or at best a confusing paraphrase, of what Scarangella said. Under Scarangella, the second question is not whether equipment “would normally be used” without unreasonable danger; it is whether “there exist normal circumstances of use” where the danger is not unreasonable. In other words, if there exist buyers who use the product normally and can forgo the safety feature without unreasonable risk, the judgment as to which buyers ought to do so is left to the buyers themselves.

Here, the record shows that circumstances did exist where a dock leveler without a Dok-Lok was reasonably safe in normal use. Indeed, the use of the system at the loading dock involved in this case was not unreasonably dangerous. The danger that a truck would roll away was absent here, because the ground on which trucks parked sloped uphill. (For this reason, the majority’s discussion of wheel chocking is irrelevant.) And the risk of what actually happened—a driver’s decision to move his truck while someone was standing at the edge of the dock leveler—could have been eliminated by a simple precaution: G & P could have instructed its employees not to use the dock leveler until they had confirmed that the truck’s motor was off. Thus this case is not different from Scarangella, where the buyer’s employees “were instructed as part of their training not to operate buses in reverse except in the yard” and “were also instructed to exercise caution and sound their regular horns when backing up” (93 NY2d at 662).

The third Scarangella test, which the majority does not discuss, is also met here. G & P which loaded merchandise onto trucks from loading docks as a routine part of its business, was “in a position ... to balance the benefits and the risks ... in the specifically contemplated circumstances” of its own use of the dock leveler. In fact, it did balance those benefits and risks, as the above-quoted testimony of its decision-maker shows. If the buyer struck the wrong balance, there is no good reason to hold the manufacturer and seller liable.

III

The majority also concludes that plaintiffs’ failure-to-warn claim can withstand summary judgment. I do not agree. Of course it is true, as it is in every case, that more and better warnings could possibly have been given; and it is true, as it is in almost every case, that plaintiffs’ expert has opined that more and better warnings should have been given; but we need not decide whether this is enough to raise a jury question on the issue of negligent failure to warn, for it is abundantly clear that no warning could have prevented this accident (see Gebo v Black Clawson Co., 92 NY2d 387, 394-395 [1998]).

The majority suggests that a warning might have made a difference because Mr. Passante “was familiar, from a loading dock where he had worked previously, with a different design of dock leveler in which the hinged lip did not collapse” (majority op at 382). But the majority fails to mention that, during the five months he worked at G & I] Mr. Passante had hundreds of experiences with the Rite-Hite dock leveler and learned that the hinged lip on that equipment did collapse. He testified:

“Q. How did you know that [the lip] would drop if you didn’t go out there fast enough?
“A. I pulled the chain I don’t know how many hundreds of times, and if you didn’t walk it out there fast enough, the lip would just go down. There was nothing to hold it up until it hit the truck.
“Q. So prior to your accident on January 16th, 1997, you knew, sir, didn’t you, that the lip was designed to fall freely?
“A. Yeah.”

It is mystifying how, in the face of this testimony, the majority “cannot conclude as a matter of law that Passante was fully aware of the danger of standing on the dock leveler lip” (id.).

IV

I think both the majority’s holdings are wrong. But the more troubling of the two is the evisceration of Scarangella, which I fear will have real economic consequences. The predictability that was offered until today to manufacturers and distributors of equipment in this state is gone, and the result can only be an increase in cost—in the cost of liability insurance, and in the cost of safety features that buyers will no longer have the option to refuse. In much of this state, our economy struggles in the best of times, and these are not the best of times. Decisions like today’s can only make things worse.

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

Judgment appealed from and order of the Appellate Division brought up for review modified, etc.

       Supreme Court had dismissed the Passantes’ complaint as against G & after the United States Bankruptcy Court for the Northern District of New York determined that the action against G & P was barred by reason of workers’ compensation.


author: Smith, J.

text:
    [909 NE2d 572, 881 NYS2d 650]
    The People of the State of New York, Respondent, v Salih Sevencan, Appellant.
    Decided May 7, 2009
    APPEARANCES OF COUNSEL

      Appellate Advocates, New York City (Lisa Napoli of counsel), for appellant.

      Charles J. Hynes, District Attorney, New York City (Caroline R. Donhauser of counsel), for respondent.
   OPINION OF THE COURT

Smith, J.

The application for a certificate granting leave to appeal should be dismissed.

The 2004 Drug Law Reform Act states that “[a]n appeal in accordance with the applicable provisions of the criminal procedure law may ... be taken as of right by the defendant from an order specifying and informing such person of the term of the determinate sentence the court would impose upon resentencing” (L 2004, ch 738, § 23). Defendant here seeks leave to appeal an Appellate Division affirmance of such an order (58 AD3d 761 [2009]). In People v Bautista (7 NY3d 838 [2006]) this Court held that similar language in the 2005 Drug Law Reform Act did not permit an appeal to this Court from an Appellate Division order affirming a denial of resentencing, because the act did not make such an order appealable under Criminal Procedure Law § 450.90 or § 470.60, which govern appeals to this Court. The reasoning of Bautista applies with equal force to the language at issue in this case.

Application pursuant to CPL 460.20 for a certificate granting leave to appeal dismissed by Judge Smith in a memorandum. Publication authorized by the Court.