author:
Ciparick, J.
      G.B. Smith, J. (dissenting in Estate of Boyle v Smith).

text:
    [ 849 NE2d 926, 816 NYS2d 703]
    John S. Zumpano, Appellant, v James F. Quinn, Individually and as Assistant Pastor at St. Agnes Catholic School, et al., Respondents. Estate of Brendan Boyle, Deceased, et al., Appellants, v James Smith et al., Defendants, and Otto Garcia et al., Respondents.
    Argued January 3, 2006;
    decided February 21, 2006

      POINTS OF COUNSEL

      Frank Policelli, Utica, for appellant in the first above-entitled action.
    I. Defendants are equitably estopped from asserting the statute of limitations since defendants created John S. Zumpano’s mental condition through their wrongful conduct, thus preventing him from pursuing, protecting or safeguarding his legal rights due to an overall inability to function in society. (McCarthy v Volkswagen of Am., 55 NY2d 543; Graboi v Kibel, 432 F Supp 572.) II. The issue of whether defendants should be barred from asserting the statute of limitations under principles of equity could not be decided without a hearing or trial under CPLR 2218. (General Stencils v Chiappa, 18 NY2d 125; Anonymous v Anonymous, 154 Misc 2d 46; Century Fed. Sav. & Loan Assn. of Long Is. v Net Realty Holding Trust, 87 AD2d 858.) III. Because the conduct of defendant James F. Quinn and defendant Catholic Diocese of Syracuse, New York caused the mental condition that has rendered appellant John S. Zumpano incapable of bringing his lawsuit prior to this time, principles of equity mandate that defendants should not now be allowed to benefit from their wrongdoing, (von Bulow by Auersperg v von Bulow, 634 F Supp 1284; General Stencils v Chiappa, 18 NY2d 125; Glus v Brooklyn Eastern Dist. Terminal, 359 US 231.) IV The doctrine of equitable estoppel is not limited to separate and subsequent acts of fraud and concealment under General Stencils v Chiappa (18 NY2d 125 [1966]), but rather includes any wrongdoing by defendant that produces the long delay between the accrual of the cause of action and the institution of the legal proceeding. (Simcuski v Saeli, 44 NY2d 442; Steo v Cucuzza, 213 AD2d 624; Doe v Holy See [State of Vatican City], 6 AD3d 1228; Glus v Brooklyn Eastern Dist. Terminal, 359 US 231; von Bulow by Auersperg v von Bulow, 634 F Supp 1284; Anonymous v Anonymous, 154 Misc 2d 46; Coopersmith v Gold, 172 AD2d 982.) V Plaintiff has the right to a jury trial on the issues to be decided at the hearing pursuant to CPLR 2218. (Abraham v Kosinski, 305 AD2d 1091; Arbutina v Bahuleyan, 75 AD2d 84; Muhl v Vesta Fire Ins. Corp., 288 AD2d 108; Cerrato v Thurcon Constr. Corp., 92 AD2d 89; Grant v Guidotti, 67 AD2d 736; Marable v Robinson, 102 Misc 2d 96, 114 Misc 2d 437; Harrison v Malcolm, 186 AD2d 502.)

      Hancock & Estabrook, LLP, Syracuse (Mark J. Schulte and Paul M. Hanrahan of counsel), for respondents in the first above-entitled action.
    I. The lower courts correctly granted the diocesan defendants’ dismissal motion because all causes of action pleaded had been time-barred for more than two decades. (Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; Sharon B. v Reverend S., 244 AD2d 878; Doe v Holy See [State of Vatican City], 17 AD3d 793; State of New York v Cortelle Corp., 38 NY2d 83; Tserotas v Greek Orthodox Archdiocese of N. & S. Am., 251 AD2d 323; Mars v Diocese of Rochester, 6 AD3d 1120, 3 NY3d 608; Bassile v Covenant House, 152 Misc 2d 88, 191 AD2d 188, 82 NY2d 656; Doe v Roe, 192 AD2d 1089; Coopersmith v Gold, 172 AD2d 982; Schmidt v Bishop, 779 F Supp 321.) II. Plaintiff was foreclosed by statute from claiming a 33-year limitations toll on grounds of insanity. (McCarthy v Volkswagen of Am., 55 NY2d 543; Brown v Rochester Gen. Hosp., 292 AD2d 855; Sanchez v Wolkoff, 247 AD2d 529; Steo v Cucuzza, 213 AD2d 624; Schmertz v Friedlander, 36 AD2d 606; Smith v Smith, 830 F2d 11.) III. Plaintiff also failed to plead a factual basis for tolling the applicable statutes of limitations on equitable estoppel grounds. (Smith v Smith, 830 F2d 11; Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68; Simcuski v Saeli, 44 NY2d 442; Doe v Holy See [State of Vatican City], 17 AD3d 793; Zoe G. v Frederick F.G., 208 AD2d 675; Doe v Roe, 192 AD2d 1089; Hoffman v Hoffman, 162 AD2d 249; Davis v Smith Corp., 262 AD2d 752; Doe v Holy See [State of Vatican City], 6 AD3d 1228; Jordan v Ford Motor Co., 73 AD2d 422.) IV. There is no existing legal authority to support plaintiffs present attempt to combine the legal maxim “no man may benefit from his own wrong” with a barred insanity claim to create an entirely new tolling doctrine. (General Stencils v Chiappa, 18 NY2d 125; Simcuski v Saeli, 44 NY2d 442; Matter of Steyer, 70 NY2d 990; Jordan v Ford Motor Co., 73 AD2d 422; Coopersmith v Gold, 172 AD2d 982; von Bulow by Auersperg v von Bulow, 634 F Supp 1284; Anonymous v Anonymous, 154 Misc 2d 46.) V This Court’s adoption of the expansive new tolling doctrine plaintiff advocates would operate in contravention of statute and erode other existing tolling doctrines. (McCarthy v Volkswagen of Am., 55 NY2d 543; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Goldsmith v Howmedica, Inc., 67 NY2d 120; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Bassile v Covenant House, 152 Misc 2d 88, 191 AD2d 188, 82 NY2d 656.)

      Michael G. Dowd, New York City, and Edward M. Shaw for appellants in the second above-entitled action.
    I. Plaintiffs have far more than adequately alleged a longtime corrupt campaign by the Roman Catholic Diocese of Brooklyn and bishops to create a specious statute of limitations defense by misrepresentations of fact and other active deceit, concealing their own knowing facilitation of the priests’ abuse. On the detailed allegations of this complaint, the pleading of an estoppel did not require any allegation of diligent investigation. (Mclvor v Di Benedetto, 121 AD2d 519; Davis v Smith Corp., 262 AD2d 752; Thoma v Town of Schodack, 6 AD3d 957; Campaign for Fiscal Equity v State of New York, 86 NY2d 307; Skarren v Household Fin. Corp., 296 AD2d 488.) II. The allegations of a fiduciary relationship between the Roman Catholic Diocese of Brooklyn and bishops and the child plaintiffs, and of a continuing breach of said duty thereafter by the diocese’s and bishops’ continuous concealment of their own wrongdoing in order to evade responsibility, constituted an independent basis for the legal sufficiency of the alleged estoppel. Just as in the case of the estoppel theory addressed in point I, pleading an estoppel in the context of a breached fiduciary duty did not require any allegation of diligent investigation. (Penato v George, 52 AD2d 939; Martinelli v Bridgeport R.C. Diocesan Corp., 196 F3d 409; Mars v Diocese of Rochester, 6 AD3d 1120, 3 NY3d 608; Doe v Holy See [State of Vatican City], 17 AD3d 793; Zumpano v Quinn, 12 AD3d 1096.)

      Conway, Farrell, Curtin & Kelly, P.C., New York City (Joseph H. Farrell, Jonathan T. Uejio and Kristin G. Shea of counsel), for respondents in the second above-entitled action.
    I. The judicial exception of equitable estoppel is inapplicable to nullify the legislative policy expressed in the statutes of limitations because plaintiffs’ amended complaint failed to allege the elements of an estoppel. (Werking v Amity Estates, 2 NY2d 43; Simcuski v Saeli, 44 NY2d 442; Knight v Brown Transp. Corp., 806 F2d 479; East Midtown Plaza Hous. Co. v City of New York, 218 AD2d 628; Irwin v Department of Veterans Affairs, 498 US 89; Gleason v Spota, 194 AD2d 764; Nevling v Chrysler Corp., 206 AD2d 221; Leon v Martinez, 84 NY2d 83; Maas v Cornell Univ., 94 NY2d 87; Windsor Metal Fabrications v General Acc. Ins. Co. of Am., 94 NY2d 124.) II. Plaintiffs’ amended complaint fails to allege facts sufficient to plead a fiduciary relationship between each plaintiff and the Roman Catholic Diocese of Brooklyn. (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11; Sonnenschein v Douglas Elliman-Gibbons & Ives, 96 NY2d 369; Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158; Wende C. v United Methodist Church, N.Y.W. Area, 4 NY3d 293; Langford v Roman Catholic Diocese of Brooklyn, 271 AD2d 494; Doe v

      Norwich R.C. Diocesan Corp., 268 F Supp 2d 139; Martinelli v Bridgeport R.C. Diocesan Corp., 193 F3d 409; First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110; Serbian Eastern Orthodox Diocese for United States & Canada v Milivojevich, 426 US 696; Gonzalez v Roman Catholic Archbishop of Manila, 280 US 1.)

      Sidley Austin Brown & Wood LLP, New York City and Washington, DC (Steven Bierman, Joseph R. Guerra and Eamon P. Joyce of counsel), for American Tort Reform Association, amicus curiae in the second above-entitled action.
    I. Appellants seek a new form of equitable estoppel that would improperly override the legislative judgment embodied in the statute of limitations. (Board of Regents of Univ. of State of N. Y. v Tomanio, 446 US 478; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Duffy v Horton Mem. Hosp., 66 NY2d 473; Ratka v St. Francis Hosp., 44 NY2d 604; International Rys. of Cent. Am. v United Fruit Co., 373 F2d 408; Johnson v Railway Express Agency, Inc., 421 US 454; McCarthy v Volkswagen of Am., 55 NY2d 543; Morales v County of Nassau, 94 NY2d 218; Rozell v Rozell, 256 App Div 61, 281 NY 106; Texas Industries, Inc. v Radcliff Materials, Inc., 451 US 630.)
   OPINION OF THE COURT

Ciparick, J.

In recent years, countless priests have been accused of impermissibly touching and sexually exploiting young people entrusted to their care, resulting in a plethora of claims seeking compensation for the injuries caused by these deplorable acts. Regrettably, many of these claims are time-barred, and absent relief from the Legislature will remain unredressed. Two such cases are before us today.

At the outset, we note that these cases present only the legal question whether equitable estoppel applies to toll the statutes of limitations for plaintiffs’ claims. The merits of these claims are not before us and we have no occasion to pass upon the strength of the allegations. Plaintiffs, moreover, concede that the applicable statutes of limitations have expired. They assert, however, that defendants should be equitably estopped from invoking the statute of limitations as a defense. We conclude that the actions are time-barred.

Zumpano v Quinn

Zumpano commenced this action in 2003 against defendant Father Quinn, as well as both the Bishop and Catholic Diocese of Syracuse, alleging an ongoing abusive relationship beginning in 1963—when he was 13 years old—and continuing until 1970. The complaint, brought 33 years later, alleges causes of action for sexual abuse, battery, breach of fiduciary duty and negligent retention and/or supervision.

Defendants moved to dismiss the complaint under CPLR 3211 (a) (5), alleging that Zumpano’s claims were barred by the appropriate statutes of limitations. In response, Zumpano argued that the statute of limitations should be tolled by CPLR 208 because he suffered from a mental disability created by defendants’ conduct, rendering him unable to function in society or to protect his own legal rights. Supreme Court granted the motion and determined that Zumpano’s claim was not tolled by the insanity provisions of CPLR 208, and was time-barred. The court also rejected the argument that equitable estoppel should be applied to toll the statute of limitations. The Appellate Division affirmed, finding that Zumpano failed to allege any separate acts by defendants—subsequent to the alleged abuse— that resulted in his delay in bringing this action. We now affirm.

Estate of Boyle v Smith

Forty-two plaintiffs instituted this action in October 2002— likewise for clergy sexual abuse—against 13 individual priests, a monsignor and both the Bishop and the Roman Catholic Diocese of Brooklyn. The complaint alleges that each plaintiff was the victim of at least one sexually abusive act by a defendant priest. Most of the acts occurred while plaintiffs were minor children, between 1960 and 1985. All plaintiffs apparently reached adulthood by 1990.

Plaintiffs asserted several causes of action, including intentional torts of sexual abuse and battery, and negligence causes of action such as failure to supervise, failure to warn and negligent retention. Plaintiffs also asserted a cause of action for breach of fiduciary duty. Specifically, plaintiffs alleged that the bishops and the Diocese were aware that the priests had abused children and that they engaged in a corrupt campaign and a pattern of concealment by failing to investigate and report the conduct to law enforcement authorities, transferring abusive priests to different parishes and making secret payments to victims and their families in return for their silence. As a result of this conduct, plaintiffs allege that they “were deprived of the knowledge of the essential factual elements which would have formed the basis of their rights to legal redress.”

Defendants moved to dismiss the complaint under CPLR 3211 arguing, among other things, that the action was barred by the statute of limitations. As in Zumpano, plaintiffs conceded that the applicable limitations period had run, but asserted that defendants should be equitably estopped from invoking the statute of limitations as a defense. Supreme Court granted defendants’ motion, finding that equitable estoppel did not apply because plaintiffs had adequate knowledge of the facts and circumstances underlying their claims and had sufficient time to inquire and discover the relevant facts before the statute of limitations expired. The court also found no fiduciary relationship between the parties.

The Appellate Division affirmed, concluding that plaintiffs had personal knowledge of the relevant facts yet failed to timely pursue their claims. Further, the Court noted that, even assuming the existence of a fiduciary relationship, equitable estoppel would not apply because they did not commence this action within a reasonable time after they reached the age of majority and were free from defendants’ supervision and control. We now affirm.

Equitable Estoppel

Although sometimes imposing hardship on a plaintiff with a meritorious claim, statutes of limitations “reflect the legislative judgment that individuals should be protected from stale claims” (McCarthy v Volkswagen of Am,., 55 NY2d 543, 548 [1982]). They cannot be deemed arbitrary or unreasonable solely on the basis of a harsh effect.

The doctrine of equitable estoppel applies where it would be unjust to allow a defendant to assert a statute of limitations defense.

“Our courts have long had the power, both at law and equity, to bar the assertion of the affirmative defense of the Statute of Limitations where it is the defendant’s affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding” (General Stencils v Chiappa, 18 NY2d 125, 128 [1966]).

Thus, this Court has held that equitable estoppel will apply “where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449 [1978]). Moreover, the plaintiff must demonstrate reasonable reliance on the defendant’s misrepresentations (see Simcuski, 44 NY2d at 449).

Citing General Stencils, plaintiffs argue that defendants cannot be permitted to benefit from their own wrongdoing. In General Stencils, defendant was plaintiffs head bookkeeper who stole from her employer and concealed her theft for several years by misrepresenting the state of plaintiffs finances. We held that defendant was equitably estopped from asserting a statute of limitations defense precisely because her affirmative conduct in concealing the crime prevented plaintiff from timely bringing its action (see 18 NY2d at 128). A defendant/wrongdoer cannot take affirmative steps to prevent a plaintiff from bringing a claim and then assert the statute of limitations as a defense. However, if the doctrine of equitable estoppel were to be applied as broadly as plaintiffs suggest, the statute of limitations would rarely be available as a defense. Plaintiffs’ proposed rule would revive any lapsed claim where the defendant inflicted some type of injury upon a knowing plaintiff but failed to come forward with further information about his or her wrongdoing.

It is therefore fundamental to the application of equitable estoppel for plaintiffs to establish that subsequent and specific actions by defendants somehow kept them from timely bringing suit (see Matter of Steyer, 70 NY2d 990, 993 [1988]). Plaintiffs have failed to satisfy this burden. As observed by the lower courts, each plaintiff was aware of the sexual abuse he or she suffered at the hands of defendant priests. Certainly they had sufficient knowledge to bring an intentional tort cause of action against the individual priests. Plaintiffs were likewise aware that the priests were employees of the dioceses and could have brought actions against the dioceses, or at least investigated whether a basis for such actions existed. Plaintiffs do not allege they made timely complaints to the dioceses regarding clergy mistreatment. Subsequent conduct by the dioceses did not appear in any way to alter plaintiffs’ early awareness of the essential facts and circumstances underlying their causes of action or their ability to timely bring their claims.

It is not enough that plaintiffs alleged defendants were aware of the abuse and remained silent about it. The Boyle plaintiffs allege that defendants had knowledge of the ongoing problem that children were being sexually abused by priests and failed to notify or warn plaintiffs of same. They also allege that, for over 40 years, defendants did not report abuse by priests to law enforcement officials; reassigned offending priests without disclosure of their offenses; and, when victims complained, made private payments to them so that the charges would not be publicized. Conduct like this might be morally questionable in any defendant, let alone a religious institution, but it is not fraudulent concealment as a matter of law. A wrongdoer is not legally obliged to make a public confession, or to alert people who may have claims against it, to get the benefit of a statute of limitations. Plaintiffs do not allege any specific misrepresentation to them by defendants, or any deceptive conduct sufficient to constitute a basis for equitable estoppel. Nor is there any indication that further discovery would yield such information. No new separate and subsequent acts of wrongdoing beyond the sexually abusive acts themselves are alleged, and equitable estoppel is therefore inapplicable to these cases.

Fiduciary Relationship

As a separate basis for equitable estoppel, the Boyle plaintiffs argue that defendants breached a fiduciary duty owed to them by concealing their own actions in covering up the abuse. “Where concealment without actual misrepresentation is claimed to have prevented a plaintiff from commencing a timely action, the plaintiff must demonstrate a fiduciary relationship . . . which gave the defendant an obligation to inform him or her of facts underlying the claim” (Gleason v Spota, 194 AD2d 764, 765 [2d Dept 1993]). We recently left open the question whether a fiduciary relationship existed between a cleric and a congregant (see Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293, 299 [2005]). It is likewise unnecessary to answer that question here.

Even if the Court were to assume that a fiduciary relationship existed between the parties during plaintiffs’ infancy and that the diocesan defendants had a legal duty to disclose any knowledge of prior incidents of sexual abuse and breached that duty, plaintiffs still failed to demonstrate how that breach prevented them from bringing a timely action. As noted above, defendants’ concealment of their own actions and of the priests’ conduct, postwrongdoing, does not alter the fact that plaintiffs were fully aware that they had been abused. Plaintiffs also knew the identity of their abusers and that the abusers were employed by the Diocese. They failed to establish that any concealment by defendants changed their awareness of these facts or that defendants had a direct role in plaintiffs’ failure to file suit within an appropriate time period. Thus, plaintiffs did not demonstrate that defendants’ failure to inform them of certain facts contributed to their delay in bringing this action. Plaintiffs possessed timely knowledge of the actual misconduct and the relationship between the priests and their respective dioceses to make inquiry and ascertain relevant facts prior to the running of the statute of limitations.

There is also no basis for a claim that any fiduciary duty continued after plaintiffs were adults—and all the plaintiffs reached adulthood in 1990 or earlier, more than a decade before bringing suit. Even assuming that a breach of fiduciary duty continued until then, and was sufficient to support a finding of equitable estoppel, plaintiffs were required to proceed with their lawsuit, or at least with an inquiry into the facts, within the statutory limitations period computed from the time “the conduct relied on [as a basis for equitable estoppel] ceases to be operational” (Simcuski, 44 NY2d at 450). Thus, the alleged breach of fiduciary duty cannot estop defendants from relying on the time that elapsed after the alleged fiduciary relationship no longer existed.

Insanity Toll

Zumpano alone argues that he suffers from a mental disability as a direct result of defendants’ abuse and that he was consequently rendered incapable of protecting his legal rights. He no longer argues that CPLR 208 tolls the statute of limitations, but contends that defendants should be equitably estopped from asserting the statute of limitations since their misconduct caused his insanity. This argument also lacks merit as he fails to establish a continuing disability. The record reflects that, as an adult, Zumpano held a full-time job for nine years. He also successfully prosecuted a personal injury action on his own behalf in 1986. As a matter of law, these facts contradict the assertion that Zumpano suffered from an ongoing mental disability and was unable to protect his rights.

Finally, our holding here is in keeping with those in several other jurisdictions addressing similar issues (see e.g. Baselice v Franciscan Friars Assumption BVM Province, Inc., 2005 PA Super 246, 879 A2d 270 [2005] [doctrine of fraudulent concealment inapplicable to toll the statute of limitations where plaintiff failed to allege any affirmative act of concealment causing him to delay bringing suit]; Doe v Roman Catholic Archbishop of Archdiocese of Detroit, 264 Mich App 632, 692 NW2d 398 [2004] [fraudulent concealment unavailable to toll the statute of limitations where plaintiff knew or should have known about his claims against defendants]; Mark K. v Roman Catholic Archbishop of Los Angeles, 67 Cal App 4th 603, 79 Cal Rptr 2d 73 [1998] [finding estoppel by concealment inapplicable to toll the statute of limitations because plaintiff was aware of his injury, the priest’s identity and his connection with the church]; Doe v Archdiocese of Washington, 114 Md App 169, 689 A2d 634 [1997] [statute of limitations was not tolled by the fraudulent concealment doctrine where plaintiff did not allege any acts subsequent to the abuse that prevented him from being aware of his claims]; compare Martinelli v Bridgeport R.C. Diocesan Corp., 196 F3d 409, 430 [2d Cir 1999] [finding evidence to support the jury’s determination that there was a fiduciary relationship between Martinelli and the diocese and that the diocese owed him a duty to investigate and to warn him in order to prevent harm]).

We conclude as we began: however reprehensible the conduct alleged, these actions are subject to the time limits created by the Legislature. Any exception to be made to allow these types of claims to proceed outside of the applicable statutes of limitations would be for the Legislature, as other states have done.

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

G.B. Smith, J. (dissenting in Estate of Boyle v Smith).

The complaint alleges facts that arguably could result in the defendants being equitably estopped from asserting the bar of the statute of limitations. I conclude, however, that those allegations are not sufficiently specific to preclude the statute of limitations defense here. Thus, I join the disposition to the extent that the present complaint is dismissed. I would permit the plaintiffs to replead their claims.

On October 8, 2002, 42 plaintiffs filed a complaint against 13 priests, a monsignor, a bishop and the Roman Catholic Diocese of Brooklyn alleging sexual abuse. The plaintiffs attended religious services at parishes in Queens and Brooklyn, New York in the 1960s, 1970s, and the early 1980s. The abuse is alleged to have occurred in various locations in and around the State of New York. The complaint makes a number of tort claims, including sexual abuse and battery against both boys and girls, intentional infliction of emotional distress, failure to remove, failure to supervise, failure to investigate, failure to warn, failure to provide a safe environment, fraud and breach of fiduciary duty. On December 9, 2002, plaintiffs filed an amended complaint alleging fraudulent concealment of the abuse and secret payments to the victims to prevent them from disclosing the abuse.

In order to prevent the plaintiffs from publicizing the abuse, the plaintiffs allege that the defendants “engaged in a covert policy and practice to conceal the problem of the sexual abuse of children by parish clergy,” “engaged in the routine practice of transferring abusive priests to new parishes,” “made secret payments to victims in return for the victims’ silence, maintained secret church accounts to make such payments, intentionally failed to investigate complaints of sexual abuse ... by defendant priests and others, did not attempt to ascertain if there were other victims of a particular offending priest once they received information that he had in fact sexually abused a child and intentionally failed to warn plaintiffs, their parents or other potential victims or parishioner parents of the danger posed by a known sexually abusive priest.”

All plaintiffs were adults by 1990. They allege that defendants are equitably estopped from raising the statute of limitations defense because of their fraud, misrepresentation, and concealment.

On November 18, 2002, defendants filed a motion to dismiss the complaint. Plaintiffs filed a memorandum of law in opposition. The CPLR 3211 (a) (5) motion was heard on January 28, 2003.

On April 11, 2003, Supreme Court, Queens County granted the motion and determined:

“Inasmuch as all of the plaintiffs had reached the age of majority by 1990, they do not dispute that the Statute of Limitations for all the claims asserted herein expired prior to the commencement of this action (see, CPLR 208, 213, 214 and 215[c] [szc]) ....
“Inasmuch as the plaintiffs were the objects of the sexual abuse alleged herein, and they were aware of what was happening to them when the incidents occurred, they clearly possessed personal knowledge of the facts giving rise to their intentional tort claims when those claims accrued, as well as sufficient time to ascertain the facts alleged in relation to their breach of fiduciary duty and negligence claims prior to the running of the limitations period” (citation omitted).

On February 7, 2005, Appellate Division, Second Department, affirmed the decision of the trial court and wrote:

“A defendant may be estopped from pleading the statute of limitations as a defense where, by fraud, misrepresentation, or deception, he or she has induced a plaintiff to refrain from filing a timely action. However, due diligence on the part of a plaintiff in bringing the action is an essential element of equitable estoppel. If a plaintiff possesses sufficient knowledge of the possible existence of a claim, he or she is under a duty to make inquiry and ascertain all the relevant facts before the statute of limitations expires.
“Here, the plaintiffs possessed personal knowledge of the facts underlying their intentional tort claims from the time of the offenses, and they also knew that the priests were employed by the Diocese. Despite this knowledge, the plaintiffs did not pursue their claims at an earlier time. Moreover, even assuming that the plaintiffs alleged sufficient facts to establish a fiduciary relationship between themselves and the Diocesan defendants, equitable estoppel is not applicable on this basis. As all of the plaintiffs reached the age of majority by 1990, their allegations failed to establish that they brought this action within a reasonable time after they became adults, when they were no longer subject to the supervision and influence of those defendants” (15 AD3d 338, 339-340 [2005] [citations omitted]).

On June 16, 2005, the Court of Appeals granted leave to appeal.

Arguments of the Parties

Plaintiffs do not argue that the statute was tolled pursuant to the exceptions in CPLR 208, 213, 214 or 215 (3). Rather, they maintain that defendants are equitably estopped from asserting the defense of the statute of limitations because defendants committed fraud, misrepresentation, and concealment which prevented plaintiffs from filing complaints against defendants for many years. Plaintiffs allege that the defendant priests were employed by the diocesan defendants and that defendants engaged in a campaign of deceit to prevent the plaintiffs from bringing a lawsuit against them. Because of the “assigning, transferring, suspending and removing of parish clergy,” plaintiffs claim that they were unable to get all the needed information to file charges against the church. Also, plaintiffs maintain that they did not have a due diligence requirement because defendants actively prevented them from pursuing their legal rights.

Plaintiffs also allege that the defendants stood in a fiduciary relationship to the plaintiffs and, thus, were responsible for ensuring a safe environment for religious instruction. Plaintiffs allege that this is an independent basis for pleading equitable estoppel and that because of defendants’ breach of fiduciary duty, there was no due diligence requirement in pursuing legal claims.

Defendants argue that plaintiffs’ failure to comply with the statute of limitations is fatal to their lawsuit. Defendants argue that the courts have consistently adhered to statutes of limitations, and this case does not present facts to toll those statutes. According to defendants, plaintiffs cannot prevail on a claim of equitable estoppel because they have failed to demonstrate that the defendants made any representations which they relied on to their detriment. Plaintiffs, they argue, did not show due diligence in pursuing their claims against the defendants. Lastly, plaintiffs did not demonstrate that defendants had a duty to act on behalf of the plaintiffs. Rather, only an association, not a fiduciary duty, existed between plaintiffs and the defendants. According to defendants, such an association is not actionable.

The Motions for Summary Judgment

The motion court granted summary judgment to defendants pursuant to CPLR 3211 (a) (5). The motions were granted based upon a violation of the statute of limitations (see CPLR 3211 [a] [5]). In a CPLR 3211 motion, the facts in the pleadings must be construed in favor of the nonmovant (see Leon v Martinez, 84 NY2d 83, 87-88 [1994] [a court must “accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”]).

“As a general proposition, it is upon injury that a legal right to relief arises in a tort action and the Statute of Limitations begins to run (see, CPLR 203 [a]; see also, Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175)” (see Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]).

In Boyle, plaintiffs allege abuse from 1960 until 1985. All of the plaintiffs were adults by 1990. The statute of limitations for tort actions for negligence, breach of fiduciary duty, and fraud allows up to six years after the event to file an action against the defendants (see CPLR 213 [1], [8]). Thus, while the cause of action for breach of fiduciary duty may have been time-barred, the time limitation for fraud, concealment, and misrepresentation would have run from the time that plaintiff or, in this case, a guardian discovered the fraud or could have discovered the fraud with reasonable diligence. Tolling occurs for infancy and insanity (see CPLR 208). In the case of infancy, plaintiffs may have up to, but no more than, three years beyond the end of the disability to file an action. At the outside limit, plaintiffs had until 1993 to file against the perpetrators. The Boyle action was not filed until 2002, and, thus, was time-barred on the statutory requirements (see CPLR 213 [8]).

Equitable Estoppel

There is no question that the Boyle plaintiffs knew that they had been sexually abused at the time of the incidents and that they knew the perpetrators. Further, each reached adulthood more than 10 years prior to the filing of the action. The Boyle plaintiffs do not claim a disability which would have interfered with the filing of the action; rather, they claim that defendants should be equitably estopped from asserting a statute of limitations defense because defendants interfered with plaintiffs filing their lawsuit by a “campaign” of deception, misrepresentation, and facilitation of the abuse by transferring and reassigning priests who committed abuse. Certainly, if such a campaign did in fact occur, there was an attempt to conceal wrongdoing which could have prevented plaintiffs from filing their lawsuit sooner. The allegations of sexual abuse are acts for which parents and child victims old enough to protest would normally seek some form of redress. Nevertheless, they did not. The question is whether the actions of the defendants contributed to the plaintiffs’ failure to timely seek redress.

The courts will not bar the assertion of equitable estoppel when plaintiff is unable to file a lawsuit because of “defendant’s affirmative wrongdoing” (see General Stencils v Chiappa, 18 NY2d 125, 128 [1966]).

“Our courts have long had the power, both at law and equity, to bar the assertion of the affirmative defense of the Statute of Limitations where it is the defendant’s affirmative wrongdoing—a carefully concealed crime here—which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding” (id.).

The allegations of affirmative wrongdoing must be “sufficiently pleaded” by the plaintiffs in order for the court to find that plaintiffs fall within the protection of the rule of equitable estoppel (see Simcuski v Saeli, 44 NY2d 442, 449 [1978]). Further, plaintiffs must demonstrate that they relied on defendants’ fraud, misrepresentation, and deception to their detriment (see Securities Inv. Protection Corp. v BDO Seidman, 95 NY2d 702, 709 [2001]; People v Begole, 27 NY2d 138, 148 [1970]).

The problem with the allegations in the amended complaint is that they do not go far enough. While the plaintiffs allege, generally, transfers and payments and efforts to dissuade persons from reporting criminal activities to appropriate bodies, the allegations are not attributable to the plaintiffs here. If the current plaintiffs had been the target of the allegations asserted and alleged specific instances, the door would be opened to permitting discovery to aid in the pursuit of the establishment of the claims alleged.

Due Diligence

When plaintiffs claim that defendants should be equitably estopped from asserting a statute of limitations bar, they must show “due diligence” in bringing the action (see Simcuski, 44 NY2d at 450, supra). By due diligence, the Court means that as soon as the plaintiff learns of the misrepresentation, plaintiff must seek to bring an action against defendant (see id.). In the case at bar, plaintiffs allege the misrepresentation and concealment was widespread and they still do not know the extent of the abuse perpetrated against children by priests at the Brooklyn Diocese. As a result, plaintiffs argue, due diligence was also thwarted by the Diocese, a fact that lends further support to the claim that defendants should be equitably estopped from claiming a statute of limitations bar. Because of the summary judgment motion, plaintiffs have not had the opportunity to conduct discovery. Nevertheless, to proceed with their action, plaintiffs must make out a better case than made here of the efforts made to comply with the requirement of due diligence.

Purpose of Statutes of Limitations

Statutes of limitations not only limit the right but also the remedy (see Ratka v St. Francis Hosp., 44 NY2d 604, 611 [1978], overruled on other grounds by Burke v Crosson, 85 NY2d 10 [1995]). Plaintiffs assert that had they had full knowledge of the sexual abuse, they would have been able to seek criminal actions against defendants.

Ordinarily, statutes of limitations function as statutes of repose (see Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429-430 [1969]). Thus, time bars serve to “put to sleep” all claims that are not brought once all the facts and circumstances are known by the plaintiffs about the claim (see Blanco v American Tel. & Tel. Co., 90 NY2d 757, 773-774 [1997]). Nevertheless, the policy considerations of repose, at issue in cases where the statute of limitations has run, do not outweigh the policy considerations of addressing affirmative wrongdoing (see Wood v Carpenter, 101 US 135, 139 [1879]).

The Case for Repleading

The applicable principle in this case is that a defendant cannot benefit from his own wrongdoing (see Chiappa, supra). Unlike Zumpano (decided today), many perpetrators were involved in Estate of Boyle and the alleged abuse involved more than 40 plaintiffs over a 25-year period. Given the extent and breadth of the alleged abuse, defendants should not benefit from the running of the statute of limitations. Defendants allegedly retained a number of unscrupulous priests for a long period of time. The facts and circumstances alleged, if true, demonstrate affirmative wrongdoing.

While it is insufficient for the plaintiffs to make only general allegations of deception and misrepresentation, plaintiffs have asserted sufficient facts to permit another pleading that may permit this case to proceed.

First, in paragraph 115 of the amended complaint, plaintiffs quote Bishop Wilton D. Gregory, former President of the United States Conference of Catholic Bishops, who stated:

“We are the ones, whether through ignorance or lack of vigilance, or—God forbid—with knowledge, who allowed priest abusers to remain in ministry and reassigned them to communities where they continued to abuse. We are the ones who chose not to report the criminal actions of priests to the authorities, because the law did not require this. We are the ones who worried more about the possibility of scandal than in bringing about the kind of openness that helps prevent abuse. And we are the ones who, at times, responded to victims and their families as adversaries and not as suffering members of the Church.”

Second, the amended complaint alleges sexual abuse by specifically named priests and alleges that these priests were transferred from place to place to avoid detection that they were sexual abusers. Third, while the allegations of a secret fund and payments to persons to prevent their publicizing abuse are not specific as to names, enough has been shown to permit a further pleading and perhaps discovery concerning these issues.

Fourth, the claims of breach of a fiduciary duty cannot be ignored. Plaintiffs maintain that defendants had a fiduciary relationship with them and, thus, had a duty to protect them from sexual molestation (see Wende C. v United Methodist Church, N.Y.W. Area, 4 NY3d 293, 299 [G.B. Smith, J., dissenting in part, 2005]). The majority concludes that it is not necessary to determine that question here. It further concludes that even if such a fiduciary duty existed, it would not prevent plaintiffs from making timely claims against the defendants.

A claim of a breach of a fiduciary duty has been upheld against clergy persons in other jurisdictions (F.G. v MacDonell, 150 NJ 550, 555, 696 A2d 697, 700 [1997]; Sanders v Casa View Baptist Church, 134 F3d 331 [5th Cir (Tex) 1998]; Destefano v Grabrian, 763 P2d 275, 284 [Colo 1988]). These cases all involved adults. In a proper case, however, a claim of breach of a fiduciary duty can be made against a person in a position of trust involving children.

The issue of the fiduciary relationship between plaintiffs and defendants is an issue of fact to be determined at trial (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). “A fiduciary relationship ‘exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation’ ” (see id., quoting Restatement [Second] of Torts § 874, Comment a). Whether or not a fiduciary relationship existed, coupled with whether or not the defendants were actively concealing abuse, are central to determining whether or not plaintiffs are prevented from pursuing claims against defendants. Defendants were the keepers of all information on the priests and were in the best position to provide the plaintiffs with the facts relevant to the abuse of the children, and to act on the abuse. Plaintiffs should not be barred from pursuing their claims if defendants had a fiduciary relationship with the plaintiffs, and misrepresentations and concealment are shown to be the reason for the delay in pursuing their claims.

Finally, this is a case where anyone would wish the allegations did not exist. Since they have been made, the question is whether they are sufficient to permit the lawsuit to proceed. The allegations are sufficient to permit additional pleading.

For all of the above reasons and specifically because there is alleged evidence of wrongdoing which would equitably estop defendants from asserting the defense of the statute of limitations, plaintiffs should be allowed to replead to demonstrate that defendants engaged in a pattern of deception, fraud, and misrepresentation which prevented them from filing a complaint within the statute of limitations period.

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

In Zumpano v Quinn: Order affirmed, with costs.

Chief Judge Kaye and Judges Rosenblatt, Graffeo and R.S. Smith concur with Judge Ciparick; Judge G.B. Smith dissents in part in a separate opinion; Judge Read taking no part.

In Estate of Boyle v Smith: Order affirmed, with costs.

      . Two plaintiffs allege that they were abused after the age of 18.

      . Plaintiffs in both cases have pleaded a separate breach of fiduciary duty cause of action premised on defendants’ knowledge, misrepresentation, concealment and failure to disclose information. In this section, we discuss only an alleged breach of fiduciary duty as it relates to pleading equitable estoppel.

      . “If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, . . . [t]he time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except . . . where the person was under a disability due to infancy” (CPLR 208).

      . See e.g. Conn Gen Stat § 52-577d (extending the time period for minors to bring sexual abuse claims to 30 years from the age of majority); Cal Code Civ Proc § 340.1 (c) (creating a one-year window in 2003 for childhood sexual abuse actions where the applicable statute of limitations had expired).

      . “Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: . . .
      “the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds.” (CPLR 3211 [a] [5].)

      . Plaintiffs allege in their complaint:
      “118. DAILY, THE BISHOPS and the DIOCESE intentionally and fraudulently engaged in the routine practice of transferring abusive priests to new parishes, both within and outside the DIOCESE. To conceal the sexual abuse, DAILY, THE BISHOPS and the DIOCESE also maintained secret files regarding such priests, made secret payments to victims in return for the victims’ silence, maintained secret church accounts to make such payments, intentionally failed to investigate complaints of sexual abuse, did not disclose to plaintiffs, their families or other parishioners for that matter, the fact that they were aware of the problem of sexual abuse of children and aware of specific incidents of abuse by defendant priests and others, did not attempt to ascertain if there were other victims of a particular offending priest once they received information that he had in fact sexually abused a child and intentionally failed to warn plaintiffs, their parents or other potential victims or parishioner parents of the danger posed by a known sexually abusive priest. . . .
      “167. DAILY, THE BISHOPS and the DIOCESE intentionally, recklessly and negligently breached their fiduciary duty to the plaintiffs.”

      . CPLR 213 (1) and (8) read:
      “The following actions must be commenced within six years:
      “1. an action for which no limitation is specifically prescribed by law . . .
      “8. an action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.”

      . “Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.” (Id.)


source: Caselaw Access Project

author: G.B. Smith, J.

license: Public Domain

text:
    [ 849 NE2d 938, 816 NYS2d 715]
    Stephen R. Frank et al., Plaintiffs, v Meadowlakes Development Corporation et al., Defendants. Meadowlakes Development Corporation, Third-Party Plaintiff-Respondent, v Home Insulation and Supply, Inc., Third-Party Defendant-Appellant.
    Argued February 9, 2006;
    decided March 30, 2006

      POINTS OF COUNSEL

      Herzfeld & Rubin, P.C., New York City (David B. Hamm of counsel), for third-party defendant-appellant.
    I. Home Insulation and Supply, Inc.’s motion to dismiss all claims against it should have been granted. No basis exists for the allocation of any fault to Home. (Szczerbiak v Pilat, 90 NY2d 553; Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1; David v County of Suffolk, 1 NY3d 525; Diaz v New York Downtown Hosp., 99 NY2d 542; Romano v Stanley, 90 NY2d 444; Amatulli v Delhi Constr. Corp., 77 NY2d 525; Baehre v Sagamore Resort Hotel, 4 AD3d 810; Geddes v Crown Equip. Corp., 273 AD2d 904; Canales v Hustler Mfg. Co., 12 AD3d 392; Cornwell v Otis El. Co., 275 AD2d 649.) II. The Supreme Court erred in granting Meadow-lakes Development Corporation’s motion for complete common-law indemnification. That order violated basic principles governing indemnification and contravened the express language of CPLR article 16. (Rogers v Dorchester Assoc., 32 NY2d 553; Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Creamer v Amsterdam High School, 277 AD2d 647; Keegan v Swissotel N.Y., 262 AD2d 111; Mas v Two Bridges Assoc., 75 NY2d 680; Singh v Congregation Bais Avrohom K’Krula, 300 AD2d 567; Doherty v Palmyra-Macedon Cent. School Dist., 286 AD2d 950; Dinino v D.A.T. Constr. Corp., 267 AD2d 148; Freeman v National Audubon Socy., 243 AD2d 608.)

      Law Offices of John Quackenbush, Buffalo (John Wallace and Joseph A. Wilson of counsel), for Meadowlakes Development Corporation, defendant and third-party plaintiff-respondent.
    I. The jury’s determination that Home Insulation and Supply, Inc. was negligent, and that such negligence was a proximate cause of the accident, was supported by substantial evidence at trial. (Cohen v Hallmark Cards, 45 NY2d 493; Schmidt v Turner, 15 AD3d 835; Blum v Fresh Grown Preserve Corp., 292 NY 241; Adamy v Ziriakus, 92 NY2d 396; Sagorsky v Malyon, 307 NY 584; Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 56 NY2d 503; Pellescki v City of Rochester, 198 AD2d 762, 83 NY2d

      752; Herman v Lancaster Homes, 145 AD2d 926, 74 NY2d 601; Berardi v Getty Ref. & Mktg. Co., 107 Misc 2d 451; Landry v General Motors Corp., Cent. Foundry Div., 210 AD2d 898.) II. The Appellate Division properly affirmed the award of full indemnification to Meadowlakes Development Corporation from Home Insulation and Supply, Inc. (Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; D Ambrosio v City of New York, 55 NY2d 454; Chapel v Mitchell, 84 NY2d 345; Felker v Corning Inc., 90 NY2d 219; Rogers v Dorchester Assoc., 32 NY2d 553; Raquet v Braun, 90 NY2d 177; Glaser v Fortunoff of Westbury Corp., 71 NY2d 643; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75; Correia v Professional Data Mgt., 259 AD2d 60; Singh v Congregation Bais Avrohom K’Krula, 300 AD2d 567.) III. Article 16 of the CPLR does not affect Meadowlakes Development Corporation’s right to full indemnification from Home Insulation and Supply, Inc. (McDermott v City of New York, 50 NY2d 211; Rangolan v County of Nassau, 96 NY2d 42; Salamone v Wincaf Props., 9 AD3d 127; Ryan v Beavers, 170 AD2d 1045; Marsala v Weinraub, 208 AD2d 689; Noble v Ambrosio, 151 Misc 2d 276,173 AD2d 801; Chianese v Meier, 98 NY2d 270; Detrinca v De Fillippo, 165 AD2d 505; Whalen v Kawasaki Motors Corp., U.S.A., 242 AD2d 919, 92 NY2d 288; Morales v County of Nassau, 94 NY2d 218.) IV Even if CPLR article 16 applied to Meadowlakes Development Corporation’s indemnity claim against Home Insulation and Supply, Inc., Home’s percentage of liability for noneconomic damages is 20%, not 10%. (Schaefer v RCP Assoc., 232 AD2d 286; Turisse v Dominick Milone, Inc., 262 AD2d 305; Kendall v Venture Dev., 206 AD2d 797; Bieber v Tower Bldr. & Contr. Corp., 216 AD2d 431; LaFleur v Consolidated Edison Co. of N.Y., 245 AD2d 36; Guiga v JLS Constr. Co., 255 AD2d 244; Torrillo v Kiperman, 183 AD2d 821; Gordon v Eastern Ry. Supply, 82 NY2d 555; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Telaro v Telaro, 25 NY2d 433.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue here is whether a tortfeasor whose liability is determined to be 50% or less can be found responsible for total indemnification of noneconomic loss despite CPLR article 16. We hold that a third-party defendant found to have only one ninth of the tortfeasors’ total fault should be responsible for one ninth of the noneconomic loss. The order of the Appellate Division should, therefore, be reversed and remitted to Supreme Court for further proceedings to calculate the portion of the settlement properly allocated to noneconomic loss.

On April 12, 1991, Stephen Frank was working at a building site in Clarence, New York, on property owned by the Meadow-lakes Development Corporation. Frank was attempting to carry a large bag of double insulation over his right shoulder up a staircase on the property. The left side of the staircase had no railing and Frank lost his balance and fell. As a result of the fall, Frank received several serious permanent injuries to his back and spine. Frank and his wife commenced an action for personal injury and loss of consortium against Meadowlakes and the general contractor, D.J.H. Enterprises, Inc. Meadow-lakes, in turn, filed a related third-party action for indemnification against Home Insulation and Supply, Inc., Frank’s employer. After a bifurcated trial, the jury apportioned fault in the amount of 10% to Frank, 10% to Home and 80% to D.J.H. The court also directed a verdict against Meadowlakes and D.J.H. based upon a violation of Labor Law § 240 (1).

On January 17, 2003, the Franks settled with D.J.H. for $300,000. On January 24, 2003, the Franks settled with Meadowlakes for $1,400,000. Supreme Court then granted Meadow-lakes’ motion for common-law indemnification against Home in the sum of $1,552,160, which included interest on the Franks’ settlement, accruing from January 31, 2003 until February 12, 2004.

Home appealed this judgment, arguing that Supreme Court erred (1) in denying its motion for a directed verdict to dismiss the third-party complaint against it because Home was not negligent and, thus, the jury’s 10% allocation of fault to Home should not stand, and (2) in granting Meadowlakes complete indemnification against Home, even if the 10% of fault remained undisturbed, because it should be liable only for its proportionate share of negligence.

The Appellate Division held that Supreme Court properly denied the motion for a directed verdict dismissing the third-party complaint because Home’s contention that there was no basis to allocate fault was without merit. The Court also disagreed with Home’s argument that it should not be required to indemnify Meadowlakes for 100% of the settlement. The Court reasoned:

“It is well settled that ‘an owner or general contractor who is held strictly liable under Labor Law § 240 (1) is entitled to full indemnification from the party actually responsible for the incident’ (Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939 [1995]). The principles of common-law indemnification allow the party held vicariously liable to shift the entire burden of the loss to the actual wrongdoer. Contrary to Home’s contention, ‘CPLR article 16 does not limit the owner’s right of indemnification’ because of the savings provision for indemnification claims set forth in CPLR 1602 (2) (ii) (Salamone v Wincaf Props., 9 AD3d 127, 129 [2004], lv dismissed 4 NY3d 794 [2005])” (20 AD3d 874, 875-876 [2005] [citations omitted]).

Two Justices dissented, concluding that Home’s liability should be limited to its proportionate share of fault. The Justices reasoned:

“Application here of the rule of joint and several liability results in precisely the ‘evil’ intended to be ‘suppressed]’ by the enactment of article 16 (McKinney’s Cons Laws of NY, Book 1, Statutes § 95)[,] a party whose equitable share of the fault has been adjudged to be but 10% liable is instead held liable for 100% of that loss. That is just the result that the Legislature sought to avoid by the enactment of article 16” (id. at 881).

We agree with the Appellate Division that there was sufficient evidence in the record to support the jury’s determination. Therefore the motion for a directed verdict was properly denied. We disagree, however, with the majority’s reasoning concerning complete indemnification. Although CPLR article 16 does not limit the right to indemnification, it does limit the amount that can be recovered when liability is 50% or less.

“A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent” (McKinney’s Cons Laws of NY, Book 1, Statutes § 97). “Statutes will not be construed as to render them ineffective” (McKinney’s Cons Laws of NY, Book 1, Statutes § 144). CPLR 1602 (1) provides, in part, that article 16 “shall . . . apply to any claim for contribution or indemnification.” CPLR 1602 (2) (ii) states, “The hmitations set forth in this article shall . . . not be construed to impair, alter, limit, modify, enlarge, abrogate or restrict . . . any immunity or right of indemnification available to or conferred upon any defendant for any negligent or wrongful act or omission.”

In Salamone v Wincaf Props. (9 AD3d 127 [1st Dept 2004]), the First Department addressed a substantially similar issue of whether a vicariously liable owner was limited in the amount of indemnification he could recover from a party whose proportionate share of fault was 50% or less. The Court found the savings provision in CPLR 1602 (2) (ii) did not limit an owner’s right of indemnification against the partially liable party. The owner argued that CPLR 1602 (2) (ii) prevented its common-law right of indemnification from being limited or abrogated by CPLR article 16. The Court determined that the “plain meaning of the highlighted statutory language (quoting a portion of CPLR 1602 [2] [ii]) appears to be that [the owner’s] common-law right of indemnification against [third-party defendant] should operate just as it would have operated had CPLR article 16 never been enacted” (id. at 135). It further reasoned that “construing CPLR 1602 (2) (ii) to leave indemnification claims unaffected by the limitations of CPLR article 16 serves to shift liability from nonculpable to culpable parties, consistent with the general intent of the article as a whole, and, presumably, the specific intent behind CPLR 1602 (2) (ii)” (id. at 138). The Salamone court saw an inconsistency between the opening clause of CPLR 1602 (1) and CPLR 1602 (2) (ii). The Court viewed CPLR 1602 (2) (ii) as the Legislature’s paramount intention and CPLR 1602 (1) as a subordinate provision which furthered article 16’s purpose in no discernable way. The Salamone court and the Appellate Division here concluded that there was an irreconcilable conflict between CPLR 1602 (1) and 1602 (2) (ii).

“The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (McKinney’s Cons Laws of NY, Book 1, Statutes § 94). It is clear that the Legislature wanted article 16’s protections to apply to indemnification actions (see CPLR 1602 [1]). The purpose of article 16 was to place the risk of a principally-at-fault but impecunious defendant on those seeking recovery and not on a low-fault, deep pocket defendant (see Rangolan v County of Nassau, 96 NY2d 42, 48 [2001] [“To construe 1602 (2) (iv) as an exception to apportionment would defeat the legislative goal of benefitting low-fault, ‘deep pocket’ defendants”]; Insuring Our Future, Report of the Governor’s Advisory Commission on Liability Insurance, at 131 [Apr. 7, 1986] [“(I)t is fundamentally unfair to require a defendant to pay a greater share of an award than corresponds to that defendant’s adjudged share of the fault that caused the injury”]). The Salamone decision ignores the Legislature’s intent in enacting article 16 in response to the rising costs of liability insurance “to assure that no defendant who is assigned a minor degree of fault can be forced to pay an amount grossly out of proportion to that assignment” (Insuring Our Future, Report of the Governor’s Advisory Commission on Liability Insurance, at 132).

In our view, there is no irreconcilable conflict between CPLR 1602 (1) and 1602 (2) (ii). In Rangolan v County of Nassau (96 NY2d 42 [2001]), this Court held that CPLR 1602 (2) (iv) did not preclude apportionment when a defendant’s liability arose from a nondelegable duty because the subsection was a savings provision and not an exception. We stated that CPLR 1602 (2) (iv) “ensures that a defendant is liable to the same extent as its delegate or employee, and that CPLR article 16 is not construed to alter this liability” (id. at 47). CPLR 1602 (2) (ii) is, likewise, a savings provision intended to ensure the courts do not read article 16 as altering or limiting the preexisting right of indemnification. This does not, however, entitle a party to 100% recovery. Therefore, though Meadowlakes retained its right to indemnification, Home, as a party found 10% liable, was limited to its proportionate share with respect to noneconomic damages. To calculate Home’s share, we divide indemnity among potential indemnitors and exclude Frank’s 10% share of fault since he cannot be an indemnitor (see Weinstein-Kom-Miller, NY Civ Prac H 1601.01). Home’s total indemnity to Meadowlakes will, therefore, be all economic loss and one ninth of noneconomic loss encompassed within the settlement, with interest.

Defendant’s remaining arguments are without merit.

Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

Order modified, etc.

       This action was commenced in 1992, before the 1996 amendment to Workers’ Compensation Law § 11, and thus Meadowlakes’ right to indemnification is not affected by the amendment.


text:
    [ 843 NE2d 1143, 810 NYS2d 403]
    In the Matter of Laura D. Blackburne.
    Decided December 5, 2005
    APPEARANCES OF COUNSEL

      Richard Godosky, New York City, for Laura D. Blackburne.
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Laura D. Blackburne is suspended, with pay, effective immediately, from the office of Justice of the Supreme Court, Queens County, pending disposition of a request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


author: Memorandum.

text:
    [ 843 NE2d 1143, 810 NYS2d 403]
    The People of the State of New York, Respondent, v Nicole Buonincontri, Appellant.
    Decided December 15, 2005
    APPEARANCES OF COUNSEL

      Labe M. Richman, New York City, for appellant.

      Michael E. Bongiorno, District Attorney, New City (Ellen O’Hara Woods of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The defendant was informed on the record that she had the right to be present during questioning of a prospective juror concerning the ability to be fair and impartial. The Appellate Division properly determined that defendant failed to present an adequate record to overcome the presumption of regularity (see People v Velasquez, 1 NY3d 44, 48 [2003]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed in a memorandum.


text:
    [ 843 NE2d 1120, 810 NYS2d 380]
    The People of the State of New York, Respondent, v James Devonish, Appellant.
    Decided December 15, 2005
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Jeffrey I. Richman of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Sandra E. Cavazos of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant was convicted of burglary in the second degree after he was found inside a locked church building with a bag containing the kinds of tools commonly used by burglars. A witness for the People, a general contractor for the church, testified that he stored his tools in the church basement and that one of the tools found in defendant’s possession was his for “sure,” and the others might have been. Viewing the evidence in the light most favorable to defendant (see People v Discala, 45 NY2d 38, 42 [1978]), the jury was entitled to infer that defendant did not bring the tools with him to the church, and thus that the evidence failed to show that he had criminal intent at the time of entry (see People v Scarborough, 49 NY2d 364, 373 [1980]). It was error to refuse defendant’s request that the jury be charged with the lesser included offense of criminal trespass in the second degree (CPL 300.50).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


text:
    [ 843 NE2d 1143, 810 NYS2d 403]
    The People of the State of New York, Appellant, v Dwight I. Vogel, Jr., Respondent.
    Decided December 15, 2005

      APPEARANCES OF COUNSEL

      Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming and Donald G. O’Geen of counsel), for appellant.

      Anna M. Zephro Jost, Tonawanda, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), appeal dismissed as moot. The People’s claims regarding the Appellate Division’s order vacating defendant’s sentence were rendered academic when County Court resentenced defendant to the same term imposed by its original judgment.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    Gorgonio Balbuena et al., Appellants, v IDR Realty LLC et al., Defendants and Third-Party Plaintiffs. Taman Management Corp., Third-Party Defendant-Respondent. Attorney General of the State of New York, Intervenor-Appellant.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by Washington Legal Foundation et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Gorgonio Balbuena et al., Appellants, v IDR Realty LLC et al., Defendants and Third-Party Plaintiffs. Taman Management Corp., Third-Party Defendant-Respondent. Attorney General of the State of New York, Intervenor-Appellant.
    Submitted December 5, 2005;
    decided December 15, 2005
   Motion by National Employment Law Project et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Gorgonio Balbuena et al., Appellants, v IDR Realty LLC et al., Defendants and Third-Party Plaintiffs. Taman Management Corp., Third-Party Defendant-Respondent. Attorney General of the State of New York, Intervenor-Appellant.
    Submitted November 21, 2005;
    decided December 15, 2005
   Motion by James Atleson et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Gorgonio Balbuena et al., Appellants, v IDR Realty LLC et al., Defendants and Third-Party Plaintiffs. Taman Management Corp., Third-Party Defendant-Respondent. Attorney General of the State of New York, Intervenor-Appellant.
    Submitted November 21, 2005;
    decided December 15, 2005
   Motion by Associated Corset & Brassiere Manufacturers, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Gorgonio Balbuena et al., Appellants, v IDR Realty LLC et al., Defendants and Third-Party Plaintiffs. Taman Management Corp., Third-Party Defendant-Respondent. Attorney General of the State of New York, Intervenor-Appellant.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by Albany/Capital District Chapter of the Labor Council for Latin American Advancement for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Rodney Bellony, Appellant, v Cheryl Chambers et al., Respondents.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by New York State Association of Criminal Defense Lawyers et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed submission is accepted as filed.


text:
    In the Matter of Council of the City of New York, Appellant, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Respondents.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by American Civil Liberties Union et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Council of the City of New York, Appellant, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Respondents.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by the City and County of San Francisco, California et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Council of the City of New York, Appellant, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Respondents.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by Brennan Center for Justice at New York University School of Law for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Council of the City of New York, Appellant, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Respondents.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by Lambda Legal Defense and Education Fund, Inc. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    CWM Chemical Services, L.L.C., Appellant, v Arthur J. Roth, as Commissioner of New York State Department of Taxation and Finance, et al., Respondents.
    Submitted November 28, 2005;
    decided December 15, 2005
   Motion by General Motors Corporation for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Estate of Brendan Boyle et al., Appellants, v James Smith et al., Defendants, and Otto Garcia et al., Respondents.
    Submitted December 5, 2005;
    decided December 15, 2005
   Motion by American Tort Reform Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Tyrone Atkinson, Appellant.
    Submitted November 28, 2005;
    decided December 15, 2005
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Elijah Little, Appellant.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that court pursuant to CPL 460.15.


text:
    The People of the State of New York, Respondent, v Winston Nicholson, Appellant.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion by Criminal Appeals Bureau of Legal Aid Society of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Edwin Santana, Appellant.
    Submitted December 12, 2005;
    decided December 15, 2005
   Motion for assignment of counsel granted and Steven Banks, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    [ 843 NE2d 748, 810 NYS2d 121]
    Michael J. Solazzo, Jr., et al., Appellants, v New York City Transit Authority et al., Respondents.
    Decided December 20, 2005
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), for appellants.

      New York City Transit Authority, Law Department, Brooklyn (Lawrence A. Silver and Wallace D. Gossett of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

A property owner will not be held liable in negligence for a plaintiffs injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter (see Valentine v City of New York, 86 AD2d 381, 383 [1st Dept 1982], affd 57 NY2d 932 [1982]). Here, it had been snowing, sleeting and raining on and off all day and the steps down into the subway were exposed to those weather conditions. Thus, summary judgment was properly granted in defendants’ favor.

Plaintiffs argue that the ongoing storm doctrine should not apply because his injury was caused by a recurring hazardous condition of which defendant Transit Authority was aware. A general awareness that the stairs and platforms become wet during inclement weather was insufficient to establish constructive notice of the specific condition causing plaintiffs injury (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.


text:
    [ 843 NE2d 1148, 810 NYS2d 408]
    In the Matter of Gary Waldren, Respondent, v Town of Islip, Appellant.
    Decided December 20, 2005

      APPEARANCES OF COUNSEL

      Bond, Schoeneck & King, PLLC, Garden City (Ernest R. Stolzer of counsel), for appellant.

      Rosenthal Curry & Kranz, LLP, East Meadow (Allen M. Kranz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, to the extent that it annulled so much of the Town’s determination as imposed a penalty and remitted for imposition of a less severe penalty, and the petition dismissed.

An administrative penalty must be upheld unless it “is so disproportionate to the offense as to be shocking to one’s sense of fairness,” thus constituting an abuse of discretion as a matter of law (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]). Under the circumstances of this case, it cannot be concluded that the penalty of termination imposed by the Commissioner shocks the judicial conscience. Petitioner’s remaining contentions lack merit.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs, and petition dismissed, in a memorandum.


text:
    [ 843 NE2d 1136, 810 NYS2d 396]
    The People of the State of New York, Respondent, v Tyrone Hicks, Appellant.
    Argued November 17, 2005;
    decided December 20, 2005

      APPEARANCES OF COUNSEL

      Kuby & Perez LLP, New York City (Ronald L. Kuby of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Jacob Kaplan, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged with rape in the first degree and related crimes stemming from a sexual assault perpetrated against a female victim. During deliberations, the trial judge received a note from the jury foreperson asking to speak to the judge. When questioned in court, the foreperson explained that the jury had a concern that one of its members “should be excused from the jury for the simple fact that she said, on an occasion she was forced—forcibly raped by her boyfriend or [fiancé] at the time.” Supreme Court queried the juror who allegedly claimed to have been raped, and in response to the prosecutor’s request for more specific inquiry, the court recalled the juror for further questioning. During that colloquy, the following exchange occurred:

“the court: You were not the victim of a rape?
“juror twelve: Not with him.
“the court: With anybody, were you ever the victim of a rape?
“juror twelve: No.
“the court: So when I asked you as a juror were you ever the victim of a crime, you answered no, and that is the truth?
“juror twelve: Right.
“the court: Anything else from anybody?
“[prosecutor]: No, your Honor.
“[defense]: No.”

The trial judge found that the juror was not grossly unqualified to serve and later declined to grant defendant’s request for a mistrial. Upon further deliberation, the jury convicted defendant of attempted rape in the first degree and attempted sodomy in the first degree. The court denied defendant’s subsequent motion to set aside the verdict and sentenced defendant as a second felony offender to an aggregate term of eight years’ imprisonment. The Appellate Division affirmed and a Judge of this Court granted leave to appeal.

Supreme Court properly denied defendant’s mistrial motion. The juror unequivocally declared that she had never been raped and stated that she could render an impartial verdict. Defendant argued that the juror could not be “accepted at her word” and therefore had provided misleading responses during jury selection that disqualified her for service. The colloquy, however, failed to convince the court that the juror was not truthful and, as such, we cannot say that the court erred in concluding that the juror was not grossly unqualified to serve. To the extent defendant now claims that the juror should have been dismissed for engaging in “substantial misconduct” (see CPL 270.35 [1]), this contention is not properly before us since it was not raised at trial.

Furthermore, we cannot address defendant’s argument that Supreme Court failed to conduct a probing and tactful inquiry of the juror as required by People v Buford (69 NY2d 290 [1987]). Defendant neither informed the court that its questioning was insufficient or objectionable, nor suggested additional avenues of inquiry or requested that other jurors be questioned. In the absence of a protest to the scope or intensity of the court’s inquiry, no question of law was preserved for our review (see CPL 470.05 [2]; People v Kelly, 5 NY3d 116, 120 n 2 [2005]; People v Torres, 80 NY2d 944, 945 [1992]).

The record also supports Supreme Court’s conclusion that the testimony offered in conjunction with defendant’s motion to set aside the verdict was “unclear, equivocal and lacking in indicia of certainty.” Because the testimony of the parole officer did not give rise to a “probability” of a verdict more favorable to defendant (CPL 330.30 [3]) and merely tended to impeach the victim’s trial testimony, it was “not the sort of ‘newly discovered evidence’ that would entitle a defendant to a new trial” (People v Jackson, 78 NY2d 638, 645 [1991]; see People v Salemi, 309 NY 208, 216 [1955]).

Defendant’s remaining contention lacks merit.

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

Order affirmed in a memorandum.


text:
    Charles Ackerman, Plaintiff, v Monique Gebbia-Ackerman, Respondent. Leslie Tenzer, Nonparty Appellant.
    Submitted October 17, 2005;
    decided December 20, 2005
   Motion for leave to appeal from the judgment entered upon the Appellate Division order dismissed upon the ground that the judgment is not the final appealable paper from which leave to appeal may be sought (see CPLR 5611).


text:
    Anonymous, Respondent, v Anonymous, Appellant.
    Submitted November 7, 2005;
    decided December 20, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that defendant’s appeal from the Appellate Division order affirming the denial of interim visitation is moot.


text:
    In the Matter of Anonymous, for Admission to the Bar of the State of New York, Appellant.
    Submitted September 26, 2005;
    decided December 20, 2005
   On the Court’s own motion, appeal, insofar as taken from so much of the Appellate Division order as denied the application for admission to the bar, dismissed upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed upon the ground that it does not finally determine the proceeding within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied the application for admission to the bar, denied; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that it does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic.

Chief Judge Kaye taking no part.


text:
    In the Matter of Anonymous, for Admission to the Bar of the State of New York, Appellant.
    Submitted November 28, 2005;
    decided December 20, 2005
   Motion for a stay etc. dismissed as academic.

Chief Judge Kaye taking no part.


text:
    Appalachian Insurance Company, Respondent, v General Electric Company, Appellant, and Riunione Adriatica DiSicurta, Also Known as Adriatric Insurance Company, et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted August 1, 2005;
    decided December 20, 2005
   Motion for leave to appeal, insofar as it seeks leave to appeal as against Birmingham Fire Insurance Company of Pennsylvania, China America Insurance Company, Fremont Industrial Indemnity Company, Granite State Insurance Company, Insurance Company of the State of Pennsylvania, North River Insurance Company, Rampart Insurance Company, Riunione Adriatica DiSicurta and Starnet Insurance Company, granted; motion for leave to appeal otherwise dismissed upon the ground that as to the other parties, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Read taking no part.


text:
    In the Matter of Alfredo Cartagena, Appellant, v New York State Board of Parole, Respondent.
    Submitted September 12, 2005;
    decided December 20, 2005
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    Chelsea Associates, LLC, et al., Respondents, v Laquila-Pinnacle, Defendant, and Gerling America Insurance Company, Appellant.
    Submitted October 24, 2005;
    decided December 20, 2005
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (see CPLR 5601 [a]).


text:
    In the Matter of Woodrow Flemming, Appellant, v Robert Morgenthau et al., Respondents.
    Submitted August 29, 2005;
    decided December 20, 2005
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602).


text:
    Ilia Josilevich, Appellant, v James L. Forde, Esq., et al., Respondents, et al., Defendant.
    Submitted October 31, 2005;
    decided December 20, 2005
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the nonfinal order of the Appellate Division entered in this action which is treated as if commenced in Civil Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]; see also CPLR 326 [b]).


text:
    Merrell-Benco Agency, LLC, et al., Appellants, v HSBC Bank USA et al., Defendants, and Wolf Kraus et al., Respondents. (And Two Other Related Actions.)
    Submitted October 24, 2005;
    decided December 20, 2005
   Motion, insofar as MBIA, LLC seeks leave to appeal, dismissed upon the ground that MBIA, LLC is not a party aggrieved (see CPLR 5511); motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Bartolome Brito, Appellant.
    Submitted October 24, 2005;
    decided December 20, 2005
   Motion to vacate this Court’s September 30, 2005 dismissal order denied [see 5 NY3d 825].


text:
    The People of the State of New York, Respondent, v Ellis Eiland, Appellant.
    Submitted December 12, 2005;
    decided December 20, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of Supreme Court entered in this criminal proceeding (see NY Const, art VI, 3 [b]; CPLR 5601; CPL 450.90).


text:
    Barbara Purpura, Respondent, v Nicholas E. Purpura, Appellant.
    Submitted October 11, 2005;
    decided December 20, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a preference dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    Barbara Purpura, Respondent, v Nicholas E. Purpura, Appellant.
    Submitted November 28, 2005;
    decided December 20, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a preference dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    [ 843 NE2d 1138, 810 NYS2d 399]
    In the Matter of Niagara Mohawk Power Corporation, Appellant, v Town of Watertown et al., Respondents. In the Matter of Niagara Mohawk Power Corporation, Appellant, v Town of Bethlehem et al., Respondents. In the Matter of Niagara Mohawk Power Corporation, Appellant, v Town of Tonawanda Assessor et al., Respondents.
    Argued November 15, 2005;
    decided December 22, 2005

      APPEARANCES OF COUNSEL

      Hiscock & Barclay, LLP, Albany (Mark D. Lansing of counsel), for appellant in the first and second above-entitled proceedings.

      Hiscock & Barclay, LLP, Buffalo (Mark R. McNamara and Mark D. Lansing of counsel), for appellant in the third above-entitled proceeding.

      Menter, Rudin & Trivelpeice, PC., Syracuse (Julian B. Modesti of counsel), for respondents in the first above-entitled proceeding.

      Hacker & Murphy, LLP, Latham (Patrick L. Seely, Jr. of counsel), for respondents in the second above-entitled proceeding.

      Brown & Kelly, LLP, Buffalo (Lisa T. Sofferin and Karen Cook Serrotte of counsel), for respondents in the third above-entitled proceeding.

      Michael E. Kenneally, Jr., Albany, for Association of Towns of the State of New York, Albany, amicus curiae in the first above-entitled proceeding.
   OPINION OF THE COURT

Memorandum.

The orders in Matter of Niagara Mohawk v Town of Bethlehem and Matter of Niagara Mohawk v Town of Tonawanda Assessor should be affirmed, with costs; and the order in Matter of Niagara Mohawk v Town of Watertown should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.

Niagara Mohawk Power Corporation, an energy resources company, owns mass property such as poles, wires, insulators and pipelines for transporting and distributing electricity and natural gas to its residential and commercial customers. In these proceedings, Niagara Mohawk challenges the imposition of special ad valorem levies in 2003 on its transmission and distribution facilities by the Towns of Bethlehem, Tonawanda and Watertown to fund a water, garbage and sewer district respectively. Niagara Mohawk takes the position that its transmission and distribution facilities, whether or not situated on or under land that it owns, are not real property benefited by the improvements, and therefore are not properly subject to special ad valorem levies.

In both Bethlehem and Watertown, the trial courts and the Appellate Division concluded that Niagara Mohawk’s challenges were time-barred by Town Law § 195 (2), and so never reached the merits. Section 195 (2) specifies that any interested person aggrieved by a town’s final determination or order establishing or extending an improvement district must seek judicial review within 30 days thereafter, accompanied by an undertaking. In Tonawanda, however, the trial court reached the merits, concluding that Niagara Mohawk’s real property was benefited by the Town’s garbage district. The Appellate Division affirmed on this basis.

Each of these appeals calls upon us to apply our recent decision in New York Tel. Co. v Supervisor of Town of Oyster Bay (4 NY3d 387 [2005]), which we handed down after the Appellate Division’s decisions in Bethlehem and Watertown, but before the Appellate Division’s decision in Tonawanda. In New York Tel. Co., we considered whether mass property owned by New York Telephone Company (NYTC) (specifically, telephone lines, wires, cables, poles, supports and enclosures for electrical conductors) constituted “benefited” property upon which the Town of Oyster Bay could impose a special ad valorem levy for garbage collection. We held that “for real property to be ‘benefited,’ it must be capable of receiving the service funded by the special ad valorem levy” (4 NY3d at 393). To determine whether property is “capable of receiving the municipal service” funded by the tax, “we look to the innate features and legally permissible uses of the property, not the particularities of its owners or occupants or the state of the property at a fixed point in time” (id. at 394). Thus, we concluded that NYTC’s real property—consisting solely of equipment situated on or under public and private land not owned by NYTC—was not and could never be benefited by the garbage district because “telephone poles can never produce or require municipal garbage collection” (id.).

As an initial matter, Town Law § 195 (2) does not preclude Niagara Mohawk’s actions against the Towns of Bethlehem and Watertown. As we explained in New York Tel. Co., section 195

(2) does not bar a plenary action attacking a town’s authority or jurisdiction to impose a special ad valorem levy on real property for a special district (id. at 395 n 7). This is what Niagara Mohawk has, in fact, contested here, although couched in CPLR article 78 terms.

Turning to the merits, as we concluded in New York Tel. Co., real property is “benefited” only if it is “capable of receiving the municipal service” at issue, based on “innate features and legally permissible uses” (id. at 394). Thus, special ad valorem levies are unauthorized where the “inherent characteristics of the subject properties preclude them from receiving [the particular municipal] services” at issue (id. at 393).

Here, Niagara Mohawk’s transmission and distribution facilities in the Town of Bethlehem benefit from the Town’s water district, which maintains a system of mains, pipes and hydrants available for purposes of firefighting. Indeed, the Town’s longtime fire chief attested that he had responded to calls involving gas leaks and, on numerous occasions, fires at Niagara Mohawk’s transmission and distribution facilities, caused by such events as downed wires or arcing related to power surges or inclement weather.

Similarly, Niagara Mohawk’s “otherwise vacant or undeveloped lands improved by electric and gas transmission fixtures and appurtenances” in the Town of Tonawanda benefit from the Town’s garbage district (17 AD3d 1090, 1092 [4th Dept 2005]). As the Appellate Division pointed out, “there is a sufficient theoretical potential of the properties to be developed in a manner that will result in the generation of garbage,” which, in fact, these properties already produce in the form of landscaping debris (grass clippings, tree clippings and brush) (id.).

With respect to Niagara Mohawk’s real property in the Town of Watertown, the record is inadequate for us to determine whether any of the properties at issue benefit from the Town’s sewer district within the meaning of New York Tel. Co. Specifically, there are questions of fact as to whether Niagara Mohawk owns the land on or under which the transmission and distribution facilities are situated, and as to whether, even if Niagara Mohawk does not own the land, the sewer district encompasses storm sewers that actually or might potentially safeguard Niagara Mohawk’s transmission and distribution facilities from flooding.

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

In Matter of Niagara Mohawk Power Corp. v Town of Watertown: Order reversed, with costs, and matter remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the memorandum herein.

In Matter of Niagara Mohawk Power Corp. v Town of Bethlehem: Order affirmed, with costs, in a memorandum.

In Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.

       RPTL 102 (14) defines a “[s]pecial ad valorem levy” as “a charge imposed upon benefited real property in the same manner and at the same time as taxes for municipal purposes to defray the cost ... of a special district improvement or service, but not including any charge imposed by or on behalf of a city or village.”


text:
    L&R Exploration Venture et al., Respondents, v Jack J. Grynberg, Appellant, et al., Respondent.
    Submitted November 14, 2005;
    decided December 22, 2005
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Anthony Malloy, Appellant, v State of New York, Respondent.
    Submitted November 14, 2005;
    decided December 22, 2005
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Kelley Potter, Appellant, v Jeanne C. Berlin, as City Clerk of City of Oswego, et al., Respondents.
    Submitted November 14, 2005;
    decided December 22, 2005
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of E. Lisa Tang, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted November 7, 2005;
    decided December 22, 2005
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    [ 844 NE2d 742, 811 NYS2d 288]
    200 Genesee St. Corp., Respondent, v City of Utica et al., Appellants, et al., Defendants.
    Decided January 10, 2006

      APPEARANCES OF COUNSEL

      Linda Sullivan Fatata, Corporation Counsel, Utica (William M. Borrill of counsel), for appellants.

      Saunders, Kahler, Amoroso & Locke, L.L.P., Utica (Gregory J. Amoroso of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendants’ motion for summary judgment granted, and judgment granted declaring that plaintiff is not entitled to 235 “covered” parking spaces under its 1979 contract with the City of Utica.

We agree with Supreme Court that the 1979 contract clearly and unambiguously provides that' defendant agreed to provide plaintiff with up to 235 unreserved and unallocated parking spaces. The contract is silent on the location of those spaces and the number of floors in the parking garage. Inasmuch as the contract was negotiated between sophisticated business people negotiating at arm’s length, Supreme Court appropriately refrained from reading language into the contract that the parties agreed the City would provide plaintiff with 235 “covered” parking spaces (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). Because this is.a declaratory judgment action, Supreme Court should have declared the rights of the parties rather than simply dismissing the complaint (see Lanza v Wagner, 11 NY2d 317, 340 [1962], appeal dismissed 371 US 74, cert denied 371 US 901 [1963]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


text:
    Gorgonio Balbuena et al., Appellants, v IDR Realty LLC et al., Defendants and Third-Party Plaintiffs. Taman Management Corp., Third-Party Defendant-Respondent. Eliot Spitzer, as Attorney General of the State of New York, Intervenor-Appellant. Stanislaw Majlinger, Respondent, v Cassino Contracting Corp. et al., Appellants, et al., Defendants. Eliot Spitzer, as Attorney General of the State of New York, Intervenor.
    Submitted January 3, 2006;
    decided January 10, 2006
   Motion by Emerald Isle Immigration Center et al. for leave to appear amici curiae on the appeals herein granted only to the extent that two copies of the brief may be served and 24 copies filed within seven days.

Judge Read taking no part.


text:
    In the Matter of City of New York, Respondent, Relative to Acquiring Title to Certain Real Property for the Construction of the Third Water Tunnel, Shaft 30B. Grand Lafayette Properties LLC, Appellant.
    Submitted December 19, 2005;
    decided January 10, 2006
   Motion by Real Estate Board of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.

Judge Read taking no part.


text:
    The People of the State of New York, Respondent, v Norman Bradley, Appellant.
    Submitted December 27, 2005;
    decided January 10, 2006
   Motion for assignment of counsel granted and Steven Banks, Esq., Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Read taking no part.